14 M r. Goodwins speech March 22. pag. 18 Sir Francis Seymour's speech ibid. Sir Thomas Wentworth's speech pag. 20 The speech and Argument of M r. Creswell of Lincolnes Inne concerning the subjects grievance by the late Imprisonment of their persons pag. 21 Sir Benjam Ruddier's speech pag. 27 Sir Robert Phillip's speech pag. 28 Sir Thomas Edmonds pag. 30 Sir Iohn Elliot ibid. Sir Hum May ibid. The Petition for the fast March 26. 1628. pag. 31 The Kings Propositions March 28. pag. 32 Three grand questions ibid. Sir Iohn Coke his speech at a Conference between the Lords and Commons about the Petition to the King against Recusants pag. 33 The Petition of both Houses to his Majesty concerning Recusants March 31. pag. 34 The Kings Answer to the Petition against Recusants pag. 37 The Answer to the same Petition by the Lord Keeper Coventry pag. 38 Sir Edward Cokes speech March 25. upon a Question of law in point of Judgement given in the Kings Bench Mich. 3. Caroli viz. that a Prisoner detain'd by Commitment per special Mandat Regis without expressing a Cause is not Bailable wherein he held negatively pag. 39 The substance of the Kings speech upon the relating of the proceedings of the Parliament to him by the Counsellers of the Commons house of Parliament April 4. pag. 41 The Duke of Buckinghams speech to his Majesty the 4 of April ibid. S r Iohn Elliot in Answer to M r Secretary Coke's message of thanks from the King and the Duke of Buckingham delivered in the Commons house of Parliament April 5 pag. 43 A message by Secretary Coke from the King to the lower house April the 7 pag. 44 S r Benjamin Ruddier's speech upon the Receit of his Majesties Answer to the petition against Recusants pag. 45 The Kings message to the House of Commons by M r Speaker April 12. pag. 46. The petition concerning billetting of souldiers April 14. pag. 47 Nine heads of the House of Commons to the Speaker pag. 49 The Speaker S r Iohn Finches speech upon the nine heads pag. 50 The Kings Answer to the petition concerning billetting of souldiers pag. 53 S r Dudley Diggs his Introduction pag. 54 The Argument made by M r Littleton at the Command of the House of Commons out of Acts of Parliament and Authorities of Law expounding the same at the first Conference with the Lords touching the person of every Freeman pag. 56 The Objections of the Kings Councell with the Answers made thereto at the two Conferences touching the same matter pag. 65 The true Copies of the Records not printed which were used on either side of that part of the debate pag. 70 The Argument which by Command of the House of Commons was made at their first Conference with the Lords touching the liberty of the person of every Freeman out of presidents of Record and resolutions of Judges in former times by M r Selden pag. 76 The whole copies of the presidents of Record mentioned in one of the Arguments made at the first conference with the Lords touching the liberty of the person of every Free-man pag. 92 S r Edward Coke pag. 107 The Arguments of Serjeant Bramston on the Habeas Corpus pag. 111 The Argument of M r Noye upon the Habeas Corpus pag. 117 The Argument of M r Selden upon the Habeas Corpus pag. 122 The Argument of M r Calthrop upon the Habeas Corpus pag. 125 The substance of the Objections made by M r Attorney generall 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 Judges in former times touching the liberty of the person of every Free-man and the Answer and replies presently then made by the House of Commons to these Objections pag. 121 The proceedings against the Earl of Suffolk April 14. p. 135 Severall speeches made at the Debatesconcerning the Kings propositions pag. 138 M r Alford ibid. S r Robert Maunsell ibid. S r Francis Seymour ibid. S r Peter Hayman ibid. M r Pimme ibid. Secretary Coke ibid. S r Dudley Diggs pag. 139 M r Spencer ibid. M r Iohn Elliot ibid. S r Edward Coke ibid. S r Thomas Wentworth pag. 146 S r Henry Martin ibid. M r Kirton ibid. S r Robert Phillips ibid. Serjeant Hoskins ibid. Serjeant Ashleys Argument seconding M r Attorney in the behalf of his Majesty pag. 141 M r Noyes Argument April 16 pag. 144 M r Glanvills Argument pag. 145 The Answer of the Judges for matter of fact upon the Habeas Corpus April 21 pag. 146 Iudge Whitlock's speech pag. 147 Iudge Iones his speech pag. 148 Iudge Doderidges speech pag. 149 The Lord chief Iustice his speech ibid. The Earl of Warwick's speech April 21 pag. 150 The Arch Bishop of Canterburies speech at the Conference of both Houses April 25 pag. 153 The five propositions read by the Lord Bishop of Norwich April 25. 1628 ibid. S r Dudley Diggs his speech in behalf of the Commons pag. 154 S r Benjamin Ruddier's speech April 28 pag. 157 The Lord Keeper's speech April 28. pag. 157 The Bishop of Exceter's letter sent to the House of Commons April 28. pag. 158 M r Hackwell of Lincolnes Inne his speech in the lower House May 1 pag. 159 The objections against M r Hackwel's speech ibid. Secretary Coke's message May 1 pag. 161 Secretary Coke's speech concerning himself and the nature of his place under his Majesty pag. 162 Henry Tomson one of the Sheriffs and Robert Henisworth Alderman of the city of York their submission for their indirect choosing of S r Thomas Savil Knight pag. 163 Propositions drawn for the defence of this Kingdome and the annoyance of the enemies of the same by sea ibid. Iudge Andersons speech pag. 165 The Kings message May 2 by Secretary Coke pag. 167 M r Masons speech May 2 ibid. The Speakers speech to his Majesty in the banquetting house May 5 pag. 171 The Kings Answer to the House of Commons delivered by the Lord Keeper May 5 pag. 173 The Lord Cok's speech at the Conference in the painted Chamber presenting the petition of Right May 8 pag. 174 The petition of Right to the Kings most excellent Majesty pag. 175 S r Benjamin Ruddier's speech page 178 His Majesties letter to the Lords spirituall and temporall of the higher House of Parliament pag. 180 The Kings message by the Lord Keeper May 21 pag. 181 M r Masons speech concerning the addition propounded by the Lords to be added to the petition of Right pag. 182 The Reasons of the Commons House delivered by M r Glanvil why they cannot admit of the propositions tendred unto them by the Lords 186 S Henry Martin's speech pag. 188 The Kings speech in the Higher House at the meeting of both Houses Iune 2. pag. 194 The Lord Keeper in explanation of the same pag. 195 The Kings Answer to the petition of Right Iune 2.
the Saxon Heptarchie whose Laws are yet to be seen published as some think by Parliament as he sayes to that end ut qui sub uno Rege sub una Lege regerentur Liber Lichfield And though the book of Lichfield speaking of the troublesome times of the Danes saies that then Ius sopitum erat in Regno Leges consuetudines sopitae sunt and prava voluntas vis violentia magis regnabant quam Iudicia vel Iustitia yet by the blessing of God a good King Edward commonly called S. Edward did awaken these Lawes Excitatas reparavit Liber de Chartsey sive Regiâ—â—rum de Chartsey reparatas decoravit decoratas confirmavit which confirmavit sheweth that good King Edward did not give those Lawes which William the Conquerour and all his Successours â—ithence that have sworn unto And here my Lords by many Cases frequent in our Modern Lawes strongly concurring with those of the ancient Saxon Kings I might if time were not precious demonstrate that our Lawes and Customes were the same I will only intreat your Lordships leave to tell you that as we have now even in those Saxon times they had their Courts Barons and Courts Leets and Sheriffs Courts by which as Tacitus saith of the Germans their Ancestours Iura reddebant per pagos vicos And I believe as we have now they had their Parliaments where new Lawes were made cum consensu Praelatorum Magnatum totius Communitatis or as another writes cum consilio Praelatorum Nobilium sapientum Laicorum I will adde nothing out of Glanvile that wrote in the time of Henry the second or Bracton that writ in the time of Henry the third only give me leave to cite that of Fortescue the learned Chancellour to Hen. 6. who writing of this Kingdome saith De Dom. polit eâ— regal Regnum illud in omnibus Nationum Regum temporibus eisdem quibus nunc regitur legibus consuetudinibus regebatur But my good Lords as the Poet said of Fame I may say of our Common Law Ingreditur solâ— caput inter nubila condit Virgil. Wherefore the cloudy part being mine I will make haste to open way for your Lordships to heare more certain Arguments and such as go on surer grounds Be pleased then to know that it is an undoubted and fundamentall point of this so ancient Common Law of England that the Subject hath a true Proprietie in his goods and possessions which doth preserve as sacred that meum and tuum that is the Nurse of Industrie the Mother of Courage and without which there can be no Justice of which meum and tuum is the proper object But this undoubted Birthright of free Subjects hath latelie not a little been invaded prejudiced by pressures the more grievous because they have been pursued by Imprisonments contrary to the Franchise of this Land And when according to the Lawes and Statutes of this Realm redresse hath been sought for in a legall way by demanding Habeas Corpus from the Judges and a discharge or triall according to the Law of the Land successe hath failed which hath now inforced the Commons in this present Parliament assembled to examine by Acts of Parliaments Presidents and Reasons the truth of English Subjects Liberties which I shall leave to learned Gentlemen whose weightie Arguments I hope will leave no place in your Lordships memories for the errours and infirmities of your humblest Servant that doth thankfully acknowledge the great favour of your most honourable and patient attention The Argument made by M r Littleton at the command of the House of Commons out of Acts of Parliament and Authorities of Law expounding the same at the first Conference with the Lords concerning the Liberty of the Person of every Free-man My Lords UPon the occasions delivered by the Gentleman that last spake your Lordships have heard the Commons have taken into their serious Consideration the matter of Personall Libertie and after long debate thereof on divers dayes as well by solemn Arguments as single propositions of doubts and answers to the end no scruple might remaine in any mans breast unsatisfied they have upon a full search and cleer understanding of all things pertinent to the Question â—nanimously declared That no Free-man ought to be committed or detained in prison or otherwise restrained by the command of the King or the Privie Councell or any other unlesse some cause of the commitment detainer or restraint be expressed for which by Law he ought to be committed detained or restrained And they have sent me with some other of their Members to represent unto your Lordships the true grounds of such their resolutions and have charged me particularly leaving the reasons of Law and Presidents for others to give your Lordships satisfaction that this Libertie is established and confirmed by the whole State the King the Lords Spirituall and Temporall and the Commons by severall Acts of Parliament The authority whereof is so great that it can receive no answer save by interpretation or repeal by future Statutes And these that I shall mind your Lordships of are so direct to the point that they can bear no other exposition at all and sure I am they are still in force The first of them is the Granâ— Charter of the Liberties of England first granted in the 17 yeare of King Iohn and renewed in the 9 yeare of King Hen. 3. and since confirmed in Parliament above 30 times Cap. 29. the words are these Nullus liber homo capiatur vel imprisonetur aut diseisietur de libero tenemento suo vel libertatibus vel liberis consuetudinibus suis aut utlagetur aut exuletur aut aliquo modo destruatur nec super cum ibimus nec super cum mittemus nisi per legale judicium parium suorum vel per legem terrae These words Nullus liber home c. are expresse enough yet it is remarkable that Matthew Paris an Authour of speciall credit doth observe fo 432. that the Charter of the 9. H. 3. was the very same as that of the 17. of King Iohn in nullo dissimiles are his words and that of King Iohn he setteth down verbatim fol. 342. and there the words are directlie Nec eum in carcerem mittemus and such a corruption as is now in the print might easily happen 'twixt 9. H. 3. and 28. E. 1. when this Charter was first exemplified But certainly there is sufficient left in that which is extant to decide this question for the words are That no Free-man shall be taken or imprisoned but by the lawfull judgement of his Peeres which is by Jury Peeres for Pares ordinary Jurours for others who are their Peeres or by the Law of the Land Which words Law of the Land must of necessity be understood in this Nation to be by due processe of Law and not the Law of the Land generally otherwise it would comprehend Bond-men whom we call Villains
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
in Chambers but publick in Court where every one may hear which causeth Judgement to be given with maturity Your Lordships have heard the particulers delivered by my brethren how that Councel being assigned to those 4. Gentlemen in the latter end of Michaelmass Term their Cause received hearing and upon consideration of the Statutes and Records we found some of them to be according to the good old Law of Magna Charta but we thought that they did not come so close to this Case as that bayl should be thereupon presently granted My Lords the Habeas Corpus consisteth of 3. parts the Writ the Return upon the Writ or schedule and the Entry or rule reciting the Habeas Corpus and the Return together with the opinion of the Court either a remittitur or traditur in ballium In this Case a remittitur was granted which we did that we might take better advisement upon the Case and upon the remittitur my Lords they might have had a new Writ the next day and I wish they had because it may be they had seen more and we had been eased of a great labour And my Lords when the Attorney upon the remittitur pressed an Entry we all straitly charged the Clark that he should make no other Entry then such as our Predecessors had usually made in like Cases for the difference my Lords betwixt remittitur and remittitur quousque I could never yet finde any I have now sat in this Court 15. years and I should know something surely if I had gone in a Mill so long dust would cleave to my cloaths I am old and have one foot in the grave therefore I will look to the better part as near as I can But omnia habere in memoria in nullo errare divinum potiùs est quam humanum THE LORD CHIEF IUSTICE SAith he shall not speak with confidence unless he might stand right in the opinion of the House and protested what he spake the day before was not said by him with any purpose to trench upon the Priviledges of this House but out of that respect which by his place he thought he owed to the King he said concerning the point he was to speak of that he would not trouble the Lords with things formerly repeated wherein he concurred with his brethren He said if it were true the King might not commit they had done wrong in not partly delivering for my Lords saith he these Statutes and good Laws being all in force we meant not to trench upon any of them most of them being Commentaries upon Magna Charta but I know not any Statute that goeth so far that the King may not commit Therefore justly we think we delivered the interpretation thereof to that purpose for my Lords Lex terrae is not to be found in this Statute they gave me no example neither was there any Cause shewed in the Return A President my Lords that hath run in a storm doth not much direct us in point of Law and Records are the best Testimonies These Presidents they brought being read we shewed them wherein they were mistaken if we have erred erramus cum Patribus and they can shew no President but that our Predecessors have done as we have done sometimes bayling sometimes remitting sometimes discharging Yet we do never bayl any committed by the King or his Councel till his pleasure be first known Thus did the Lord Chief Justice Coke in Raynards Case They say this would have been done if the King had not written but why then was the Letter read and published and kept and why was the Town Clark sent carefully to enquire because the Letter so directed whether these men offered for bayl were subsedy men the Letter sheweth also that Beckwith was committed for suspition of being acquaninted with the Gun-Pouder-Treason but no proof being produced the King left him to be bayled The Earle of WARVVICKS speech 21. April 1628. MY Lords I will observe something out of the Law wherein this liberty of the Subjects Person is founded and some things out of Presidents which have been alleadged For the Law of Magna Charta and the rest concerning these points they are acknowledged by all to be of force and that they were to secure the Subjects from wrongfâ—ll imprisonment as well or rather more concerning the King then the Subject why then besides the grand Charter and those 6. other Acts of Parliament in the very point we know that Magna Charta hath been at least 30. times confirmed so that upon the matter we have 6. or 7. and thereby Acts of Parliament to confirm this liberty although it was made a matter of derision the other day in this House One is that of 36. E. 3. N o. 9. and another in the same year N o. 20. not printed but yet as good as those that are and that of 42. E. 3. cap. 3. so express in the point especially the Petition of the Commons that year which was read by M r. Littleton with the Kings answer so full and free from all exception to which I refer your Lordships that I know not have any thing in the World can be more plain and therefore if in Parliament ye should make any doubt of that which is so fully confirmed in Parliament and in case so clear go about by new glosses to alter the old and good Law we shall not onely forsake the steps of our Ancestors who in Cases of small importance would answer nolumus mutare leges Angliâ— but we shall yield up and betray our right in the greatest inheritance the Subjects of England hath and that is the Laws of England and truely I wonder how any man can admit of such a gloss upon the plain Text as should overthrow the force of the Law for whereas the Law of Magna Charta is that no Free-man shall be imprisoned but by lawfull judgement of his Peers or the Law of the Land the King hath power to commit without Cause which is a sence not onely expresly contrary to other Acts of Parliament and those especially formerly cited but against Common sence For M r. Attorney confesseth this Law concerns the King why then where the Law saith the King shall not commit but by the Law of the Land the meaning must be as M r. Attorney would have it that the King must not commit but at his own pleasure and shall we think that our Ancestors were so foolish to hazard their Persons Estates and labour so much to get a Law and to have it 30. times confirmed that the King might not commit his Subjects but at his own pleasure and if he did commit any of his Subjects without a Cause shewen then he must lie during pleasure then which nothing can be imagined more ridiculous and contrary to true reason For the Presidents I observe that there hath been many shewen by which it appears to me evidently that such as have been committed by the Kings Councel
discouragements and want of pay have either run away to the Enemy or betaken themselves to forraign service or to any other Trade rather then to lead a Sea-mans life to the inestimable loss and danger of the Kingdom The Kings Answer to the Remonstrance the 17 of June 1626. Gentlemen UPon my Answer to your Petition of Right I expected no such declaration from you which conteineth divers points of State touching the Church and Common-Wealth And I do conceive you do believe that I understood them better then your selves but since the reading thereof I perceive you understâ—nd these things less then I imagined notwithstanding I will take them into my consideration as they deserve The Kings Speech at the end of the Session June 26. IT may seem strange that I came so suddenly to end this Session therefore before I give any assent to the Bills I will tell you the cause though I must avow that I owe an accompt of my actions to none but to God alone It is known to every one that a while a go the House of Commons gave me a Remonstrance how acceptable every man maâ— judge and for the merrit of it I will not call that in question for I am sure no wise man can justifie it Now since I am truely informed that a second Remonstrance is preparing for me to take away the profit of my Tonnage and Poundage one of the chief maintenances of the Crown by alleadging that I have given away my right thereof by my answer to your Petition This is so prejudiciall to me that I am forced to end this Session some few hours before I meant it being not willing to receive any more Remonstrances to which I must give an harsh answer And since I see to that end the House of Commons beginneth already to make false constructions of what I granted in your Petition least it be worse interpreted in the Countrey I will now make a Declaration concerning the true intent thereof The profession of both Houses in the time of hammering this Petition was no was to trench upon my prerogative saying they had neither intention nor power to hurt it Therefore it must needs be conceived that I have granted no new but confirmed the ancient Liberties of my Subjects yet to shew the clearness of my intentions that I neither repent nor mean to recede from any thing I have promised you I do here declare that those things which have been done whereby many had some cause to suspect the libertie of the Subject to be trenched upon which indeed was the first and true ground of the Petition shall not hereafter be drawn in example for your prejudice and in time to come in the word of a King you shall not have like cause to complain But as for Tonnage and Poundage it is a thing I cannot want and was never intended by you to ask never meant I am sure by me to grant To conclude I command you all that are here to take notice of what I have spoken at this time to be the true intent and meaning of what I granted in your Petition but especially you my Lords the Judges for to you onely under me belongs the interpretation of Laws for none of the Houses of Parliament either joynt or separate what new doctrine soever may be raised have any power either to make or declare a Law without my consent The Second Remonstrance Most Gratious Soveraign YOur Majesties most Loyall and Dutifull Subjects the Commons in this present Parliament Assembled being in nothing more carefull then of the Honour and prosperity of your Majesty and the Kingdom which they know doth much depend upon your happy Union and relation betwixt your Majestie and your people do with much sorrow apprehend that by reason the incertainty of their continuance together the unexpected interruptions which have been cast upon them and the shortness of time in which your Majestie hath determined to end this Session they cannot bring to maturity and perfection diverse businesses of waight which they have taken into consideration and resolution as most important for the common good Amongst diverse other things they have taken in especial care for preparing a Bill for the granting to your Majestie such a subsedy of Tonnage and Poundage as might uphold your profit and revenew in as ample manner as their just care and respect of Trade wherein not onely the prosperity but even the life of the Kingdom would permit but being a work which will require much time and preparation by conference with your Majesties Officers and with the Merchants not onely of London but also of other remote parts they finde it not possible to be accomplished at this time wherefore considering it will be much more prejudiciall to the right of the Subject if your Majestie should continue to receive the same without Authority of Law after the determination of a Session then if there had been a recess by adjournment onely in which case that intended grant would have related to the first day of the Parliament and assuring themselves your Majesty is resolved to observe that your Royall answer which you have lately made to the Petition of Right of both Houses of Parliament Yet doubting lest your Majesty may be misinformed concerning the particular case as if you might continue to take those subsedies of Tonnage and Poundage and other impositions upon Merchants without breaking that answer they are forced by that dutie which they owe to your Majestie and to those whom they represent to declare that there ought not any imposition to be laid upon the goods of Merchants exported or imported with common consent by Act of Parliament which is the right and inheritance of your Subjects founded not onely upon the most ancient and Original constitution of this Kingdom but often confirmed and declared in divers Statute Laws And for the better manifestation thereof may it please your Majestie to understand that although your Royall predecessors the Kings of this Realm have often had such subsedies and impositions granted unto them upon diverse occasions especially for the guarding of the Seas and safe-guard of Merchants yet the Subjects have been ever carefull to use such cautions and limmitations in those grants as might prevent any claim to be made That such subsedies do proceed from duty not of free gift of the Subject and that they have heretofore used to limmit a time in such grants and for the most part but short as for a year or two and if it were continued longer they have sometimes directed a certain space of cessation and intermission that so the right of the Subject might be more evident At other times it hath been granted upon occasions of War for a certain number of years with proviso that if the War were ended in the mean time then the grant should cease And of course it hath been sequestred into the hands of some Subjects to be imployed for the guarding of the coasts
no Priviledge lieth against the King in point of his duties Sir Francis Seymour I desire it may first be debated Whether this case doth concern the King or no for I conceive these Customers have not made good that there was any right here is onely art used to entitle the King I conceive it a high offence for any man to lay the scandal upon the King for every project Mr. Glanveil Here is a cunning Project in the Exchequer to entitle the King a meer cunning Project and an offence of a high nature to shelter their projects under the Command of the Crown Secretarie Cook The point in question is not the right of the Subject but the right of Parliament Priviledge and that in the case of Mr. Rolles and this is onely now in question Sir Iohn Strangewaies I know no reason why we should draw a question upon our selves which we need not especially between the King and us I conceive it plain these Customers took the goods in their own right not in the Kings In this Priviledge is plainly broken wherein it is easily determined Mr. Banks In this case there is no interposing of the Kings Right and the King this Parliament hath declared as much That the Courts at Westminster do grant 12 days priviledge to any man to inform his Councel much more the Court of Parliament are to have their Priviledge The Kings Command cannot extend to authorize any man to break the Priviledges no more than it will warrant an entrie upon any mans Land without process of Law Mr. Soliciter If the King have no Right how can he make a Lease then this pretended interest of the Customers must needs be void and therefore the goods must not be taken on their own right but in the right of the King Mr. Selden If there were any right the pretended right were in the Subject First whether Priviledge in goods Secondly whether the right were in the Customers onely Thirdly whether priviledge against the King 1. If the Lords have no priviledge in Parliaments for their goods then have they no priviledge at all for they are priviledged in their persons out of Parliament 2. For the point of interest it is plain no kind of Covenant can alter the interest and questionless had the cause in the Exchequer appeared to the Barons as it doth to us they would never have proceeded as they did 3. If our goods may be seized into the Exchequer be it right or wrong we were then as good have nothing Sir Nath. Ritch It was recorded the last Session and citeth other presidents in this House that a servant of a Member in Parliament ought to have priviledge in his goods Mr. Noy saith that these Commissioners had neither Commission nor Command to seize Therefore without doubt we may proceed safely to the other question That the priviledge is broken by the Customers without relation to any Commission or Command of the King Secretarie Cook saith It is in the Commission to seize but the Commission being read it is not found to be there Chancellor of the Dutchie saith Mr. Dawes mentioned that he seized these goods by virtue of a Commission and other Warrants remaining in the hands of Sir Iohn Elliot that therefore these Warrants may be seen whether there be no command to seize these goods Sir Nathaniel Ritch This days debate much joyeth me specially the motion made by Mr. Noy whereby it is plain we have a way open to go to this question without relation to the Kings Commission or Command and desire it in respect there appears nothing before us to incumber the question Chancellor of the Dutchie desires again these Warrants may be lookt into before we go to the question Mr. Kirton In respect this Honorable Gentleman presseth this so far that it may appear with what judgement this House hath proceeded Mr. Glanviel I consent these Warrants be sent for and read but withall if any thing arise that may produce any thing of ill consequence let it be considered from whence it doth come The Privie Councellers are contented with this Motion The Warrants being sent for and read it is plain there is no Warrant to seize Mr. Kirton If now there be any thing of doubt I desire those Honorable persons may make their objections Chancellor of the Dutchie I rejoyce when I can go to the Court able to justifie your proceedings I confess I see nothing now but that we may safely proceed to the Question Mr. Secretarie Cook saith as much Mr. Hackwell argueth against Priviledge in time of Prorogation Mr. Noy saith he had no doubt but that Priviledge was in force in time of Prorogation untill he heard this Argument of Prorogation of Mr. Hackwell and saith that he hath nothing from him yet that doth alter his opinion and citeth a cause wherein the Lords House hath this verie Prorogation adjudged the Priviledge Mr. Hackwell saith he is glad to hear it is so and he is now of the same opinion Decided by Question That Mr. Rolles ought to have Priviledge of Parliament for his goods seised 30 Octob. 5 Iac. and all sithence This Committee is adjourned untill Munday and the Customers to attend The Protestation of the COMMONS in Parliament on Munday 2. Mar. 1628. 1. WHosoever shall bring in an Innovation in Religion or by favour or countenance seek to extend or introduce Poperie or Arminianisme or other Opinion differing from the true and orthodox profession of our Church shall be reputed a Capital enemie to this Kingdom and Common-wealth 2. Whosoever shall counsel or advise the taking or leavying of the Subsedies of Tonage and Poundage not being granted by Parliament or shall be an Actor or an Instrument therein shall likewise be reputed an Innovator in the Government and a Capital enemie to the Kingdom and Common-wealth 3. If any Merchant or other person whatsoever shall voluntarily yield or pay the said Subsedie of Tonnage or Poundage not being granted by Parliament he shall likewise be reputed a Betrayer of the Liberties of England and an enemie to the same THE KINGS SPEECH in the House of PARLIAMENT Mar. 10. 1628. to Dissolve it My LORDS I Never came here upon so unpleasing occasion it being for the Dissolving of a PARLIAMENT therefore many may wonder why I did not rather choose to do this by my Commission it being the general Maxim of Kings to lay harsh commands by their Ministers themselves onely executing pleasing things But considering that Justice is as well in Commanding of Virtue as Punishing of Vice I thought it necessarie to come hâ—râ— to day to declare to you my Lords and all the world That it was onely the disobedient carriage of the Lower House that hath caused this Dissolution at this time and that you My Lords are so far from being causers of it that I have as much comfort in your Obedience manifested by all your carriage towards me as I have cause to distaste their proceedings Yet that
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
our selves our Friends and of our Religion That the Dangers were not reall but pretended we all heartily wish but feel the contrary That divisions have weakned our party and our attempts united the two greatest Princes of Christendome against us whom we have provoked That the State is desperately diseased and this Parliament the way that it may yet be recovered if soveraigne and proper remedies be speedily applyed 1. To trust the King whose Kingly nature is to yield it prevails 2. To supply the King and that without condition which is fewel of Jealousie 3. To present our grievances to his Majesty personall and reall humbly moderately and briefly 4. To do all this speedily and in order whereby the King may be strengthened the Kingdome recovered our Allies relieved and the Laws and Liberties of the Subject preserved in a legall propriety for he that is not master of his goods dwells not at home Sir Robert Philips his Speech March 22. 1627. Mr. Speaker I Reade of a custome amongst the old Romans that once every year they had a solemn Feast for their Slaves at which they had liberty without exception to speak what they would thereby to â—ase their afflicted minds which being finished they severally returned to their former Servitude This may with some resemblance and distinction well set forth our present state where now after the revolution of some time and grievous sufferance of many violent oppressions we have as those Slaves had a day of liberty of speech but shall not I trust be hereafter slaves for we are free yet what new illegall proceedings our states and persons have suffered under my heart yearns to think my tongue falters to utter They have been well represented by divers worthy Gentlemen before me yet one and the maine as I conceive hath not been touched which is our Religion Religion M r. Speaker made vendible by Commission and men for pecuniary annuall rates dispenced withall whereby Papists may without feare of Law practice Idolatry For the Oppressions under which we grone I draw them into two heads Acts of Power against Law and Judgements of Law against our Liberty Of the first sort are strange instructions violent exactions of money thereupon imprisonment of the persons of such who to deliver over to posteritie the liberty they have received from their Fore-fathers and lawfully were in possession of refused so to lend and this aggravated by reason of the remedilesse continuance and length thereof and chiefly the strange vast and unlimited power of our Lieutenants and their Deputies in billetting of Souldiers in making rates in granting warrants for taxes as their discretions shall guide them and all against the Law These last are the most insupportable burthens that at this present afflict our poor Country and the most cruel oppression that ever yet the Kingdome of England endured These upstart Lieutenants of whom perhaps in some cases and times there may be good use being regulated by Law are the worst of grievances and the most forward and zealous executioners of those violent and unlawfull courses which have been commended unto them Of whose proceedings and for the qualifying of whose unruly power it is more then time to consult and determine Judgements of Law against our Liberty have been three each latter stepping forwarder then the former upon the right of the Subject aiming in the end to tread and trample under foot our Law and that in the form of Law The first was the Judgement of the Post-nati whereby a Nation which I heartily love for their singular zeal in our Religion and their spirit to preserve our Liberties far beyond many of us is made capable in any the like favours priviledges and immunities as our selves enjoy and this specially argued in the Exchequer Chamber by all the Judgeâ— of England The second was the Judgement upon the impositions in the Exchequer Court by the Barons which hath been the source and fountain of many bitter waters of affliction unto our Merchants The third was that fatall late Judgement against the Liberty of the Subject imprisoned by the King argued and pronounced but by one alone I can live although another without title be put to live with me nay I can live although I pay excises and impositions more then I doe but to have my Liberty which is the soul of my life taken from me by power and to have my body pent up in a gaole without remedy by Law and to be so adjudged Oh improvident Ancestors Oh unwise Fore-fathers to be so curious in providing for the quiet possession of our Laws and the Liberties of Parliament and to neglect our Persons and Bodies and to let them ly in prison and that durante bâ—neplacito remedilesse If this be Law what do we talk of Liberties why do we trouble our selves with the dispute of Law franchises propriety of goods and the like What may any man call his if not Liberty I am weary in treading these waies and conclude to have a select Committee deputed to frame a Petition to his Majestie for redress of these things which being read examined and approved by the House may be delivered to the King of whose gracious answer we have no cause to doubt our desires being so reasonable our intentions so loyall and the manner so humble Neither need we feare this to be the Critical Parliament as was insinuated or this a way to distraction but assure our selves of a happie issue Then shall the King as he calls us his great Councell find us his true Councell and owne us his good Councell Which God grant c. Sir Thomas Edmonds March 22. 1627. THe King congratulating this present Parliament he prays for a blessed supply he assures us of his gracious inclination towards us and of the consequence of this meeting doth intimate how much the safety of our selves and Confederates abroad depends upon the good successe thereof and he wisheth a generall oblivion of things that are past least they cause distractions anew without a primary and free Supply to his Majestie Sir John Elliot March 22. 1627. SIr Iohn Elliot did passionately and rhetorically set forth our late Grievances he misliked much and vehemently the violating of our Laws urged many good arguments for our propugning them and concluded with Sir Francis Seymour for a Committee Sir Humfrey Maye March 22. 1627. LEt us take heed of distracting the King who is young and vigorous full of spirit and courage and may be wone to our devices by our complying and alleadging all these illegall proceedings were actions of Necessity and the like with other things by way of excuse The Petition for the Fast March 26. 1628. Most Gracious Soveraigne WE your Majestie 's most humble and loyall Subjects the Lords Spirituall and Temporall and Commons in this present Parliament assembled upon a tender and passionate sense of the extream Calamities of the Reformed Churches abroad and with much sorrow apprehending the heavy displeasure of almighty
was cited and Stamford 72. expounding hereof the commandment of the King to be the commandment of the Kings mouth or of his Councell But it is clear that by praeceptum is understood the commandment of the Justices of the Kings Bench and Common Pleas and this is contemporanea expositio quae est fortissima in lege To this purpose vide Westm. 1. cap. 9. the book of 2. R. 2. item cap. 20. de malefactoribus in parâ— the book of 8 Hen. 4. 5. item 25. 26. 29. cap. ejusdem statuti whereby it may appear that the commandment here spoken of to be the commandment of the King is his commandment by his Judges Praeceptum Domini Regis in Curia non in Camera So it is likewise taken 1. R. 2. cap. 12. in a Statute made in the next Kings reign and expresly in Dyer fol. 162. § 50. fol. 192. § 24. Shall I further prove it by matter of record Fac hoc vives it is 18. E. 3. Rot. 33. coram Rege Iohn Bilston's Case who being committed and detained in prison by commandment of the King was discharged by Habeas corpus eo quod Breve Domini Regis non fuit sufficiens causa All the Acts of Parliament in title of accusation are direct to the point and also the 16. Hen. 6. Brooke and Littleton 2. 1. monstrans de fait 182 per Cur. The King cannot command a man to be arrested in his presence the King can arrest no man because there is no remedy against him 1. Hen. 7. 4. likewise praedict stat cap. 18. the Kings pleasure is not binding without the assent of the Realm I never read any opinion against what I have said but that of Stamford mistaken as you see in the ground yet I say not that a man may not be committed without precise shewing the cause in particular for it is sufficient if the cause in generall be shewed as for Treason c. 1. E. 2. stat de frangend prison nullus habeat judicium c. there the cause of imprisonment must be known else the Statute will be of little force the words thereof doe plainly demonstrate the intent of the Statute to be accordingly I will conclude with the highest authority that is 25. chap. of the Acts of the Apostles the last verse where Saint Paul saith It is against reason to send a man to prison without shewing a Cause Thus Master Attorney according to the rules of Physick I have given you a Preparative which doth precede a Purge I have much more in store The substance of the King's Speech upon the relating of the proceedings of the Parliament to him by the Counsellers of the Commons House of Parliament 4. April 1628. HIs Majestie upon the Report made expressed great contentment that it gave him not valuing the money given comparable to the hearts shewed in the way of the gift for although his great Occasions of State did require more money then at this time was given yet now he made account he could not lack since he had their loves and that this day he thought he had gained more reputation in Christendome then if he had won many battails saying further according to his Speech the first day of the Parliament that they might easily make him in love with Parliaments now he professed he was so and that we should find the fruits of it by his calling us often together And to secure further feares and create future confidence he assureth us that we shall enjoy as great immunity and freedome in his time as ever we possessed or had under the reigne of any the best Kings of this Realm The Duke of Buckingham's Speech to his Majestie on Friday being the 4. of April 1628. Sir ME thinks I now behold you a great King for love is greater then Majestie Opinion that your people loved you not had almost lost you in the opinion of the World but this day makes you appear as you are a glorious King loved at home and now to be feared abroad This falling out so happily I beseech you give me leave to be an humble Suitour unto your Majestie First for my self that I who have had the honour to be your Favourite may now give up my title unto them they to be your Favourite and I to be your Servant My second suit is that they having done all so well you will account of them all as one a Body of many Members but all of one heart Opinion might have made them differ but Affection did move them all to joyn with like love in this great gift For proportion although it be lesse then your occasions may ask yet it is more then ever Subjects did give in so short a time nor am I perswaded it will rest there for this is but an earnest of their affectionâ— to let you see and the world know what Subjects you have that when your Honour and the good of the State is ingaged aâ—d aid asked in the ordinarie way of Parliament you cannot want This is not a gift of â— Subsidies alone but the opening of a Myne of Subsidies which lieth in their hearts This good beginning hath wrought already these good effects they have taken your heart drawn from you a declaration that you will love Parliaments and again this will meet I make no question with such respect that their demands will be just dutifull and moderate for they that know thus to give know what is fit to ask Then cannot your Majestie do lesse then out-go their demands or else you do lesse then your self or them for your Message begat trust their trust and your promise must beget performance This being done then shall I with a glad heart behold this work as well ended as now begun then shall I hope that Parliaments shall be made hereafter so frequent by the effects and good use of them as they shall have this further benefit to deterre from approaching your â—ares those Projectours and Inducers of Innovation as Disturbers both of Church and Common-wealth Now Sir to open my heart and to â—ase my grief please you to pardon me a word more I must confesse I have long lived in pain sleep hath given me no rest favours and fortunes no content much have been my secret sorrows to be thought the Man of Separation and that divided the King from his People and them from him But I hope it shall appeare there were some mistaken mindes that would have made me the Evil Spirit that walked between a good Master and a loyall people for ill offices whereas by your Majesties favour I shall ever endeavour to approve my self a good spirit breathing nothing but the best of service to them all Therefore this day I account more blessed unto me then my birth to see my self able to serve them to see you brought in love with Parliaments to see a Parliament expresse such love to you and God so love me and mine as I
been made and that in this very point only upon the interpretation and apprehension of Presidents But Presidents my Lords are good media or proofs of illustration or confirmation when they agree with the expresse Law but they can never be proof enough to overthrow any one Law much lesse seven severall Acts of Parliament as the number of them is for this point The House of Commons therefore taking into consideration that in this Question being of so high a nature that never any exceeded it in any Court of Justice whatsoever all the severall wayes of just examination of the truth should be used have also most carefully informed themselves of all former Judgements or Presidents concerning this great point either way and have been no lesse carefull of the due preservation of his Majesties just Prerogative then of their own Rights The Presidents here are of two kinds either meerly matter of Record or else the former resolutions of Judges after solemn debate in the point This part that concernes the Presidents the House of Commons have commanded me to present to your Lordships which I shall as briefly as I may so I shall do it also faithfully and perspicuously To that end my Lords before I come to the particulars of any of these Presidents I shall first remember to your Lordships that which serves as a generall key for the opening and true apprehension of all them of Record without which key no man unlesse he be verst in the Entries and Court of the King's Bench can possibly understand them In all cases my Lords where any right or Liberty belongs to the Subject by any positive Law written or unwritten if there were not also a remedy by Law for the enjoying or regaining of this right or Libertie when it is violated or taken from him the positive Law were in vain and to no purpose were it for any man to have right in any land or other Inheritance if there were not a known remedy that is an Action or Writ by which in so me court of ordinary Justice he might recover it And in this case of right of Liberty of the Person if there were not a remedy in the Law for regaining it when it is restrained it were to no purpose to speak of Lawes that ordain it should not be restrained Therefore in this case also I shall first observe the remedy that every Free-man is to use for the regaining of his Liberty when he is against Law imprisoned that so upon the legall course and form to be held in using that remedy the Presidents or Judgements upon it for all Presidents of Record rise out of this Remedy may be easily understood There are in the the Law divers remedies for enlargement of a Freeman imprisoned as the Writs of odio atia and of homine replegiando besides the common and most known Writ of habeas Corpus or Corpus cum causa as it is called also The first two are Writs to be directed to the Sheriff of the Countie and lye only in some particular cases with which it would be untimely for me to trouble your Lordships because they concern not that which is committed to my charge But that Writ of habeas Corpus or Corpus cum causa is the highest remedy in Law for him that is imprisoned by the speciall command of the King or of the Lords of the Councell without shewing cause of the commitment Neither is there any such thing in the Lawes of this Land as a Petition of Right to be used in such cases for the Liberty of the person nor is there any other legall Course to be taken for enlargement in such cases howsoever the contrary hath upon no ground or colour of Law been pretended Now my Lords if any man be so imprisoned by any such command or otherwise in any prison whatsoever through England and desire either by himself or any other in his behalf this Writ of habeas Corpus for the purpose in the Court of King's Bench the Writ is to be granted to him and ought not to be denied him no otherwise then any ordinary originall Writ in the Chauncery or other common processe of Law may be denyed Which amongst other things the House of Commons hath resolved also upon mature deliberation and I was commanded to let your Lordships know so much This Writ is to be directed to the Keeper of the Prison in whose custody the Prisoner remaines commanding him that at a certain day he bring in the body of the Prisoner ad subjiciendum recipiendum juxta quod Curia consider aver it una cum causa captionis detentionis and oftentimes una cum causa detentionis only captionis being omitted The Keeper of the Prison thereupon returnes by what Warrant he detaines the Prisoner and with his Return filed to his Writ brings the Prisoner to the Barre at the time appointed When the Return is thus made the Court judgeth of the sufficiency or insufficiency of it only out of the body of it without having respect to any other thing whatsoever that is they are to suppose the Return to be true whatsoever it be For if it be false the party may have his remedy by action on the case against the Gaoler that brings him Now my Lords when this Prisoner comes thus to the Barre if he desires to be bailed and that the Court upon view of the Return think him in Law to be bailed then he is alwayes first taken from the Keeper of the Prison that brings him and committed to the Marshall of the Kings Bench and afterwards bailed and the Entrie perpetually is Commiâ—titur Marr. postea traditur in ballium For the Court never bailes any man untill he becomes their own Prisoner and be in custodia Marescalli of that Court. But if upon return of the habeas Corpus it appears to the Court that the Prisoner ought not to be bailed nor discharged from the Prison whence he is brought then he is remanded or sent back again there to remain untill by Course of Law he may be delivered And the Entrie in such case is Remittitur quousque secundum legem deliberatus fuerit or Remittitur quousque c. which is all one and is the highest award or Judgement that ever was or can be given upon a habeas Corpus But if the Judges doubt only whether in Law they ought to take him from the prison whence he came or give daie to the Sheriff to amend his Return as often they do then they remand him only during the time of their debate or untill the Sheriff hath amended his Return and the Entrie upon it is Remittitur only or Remittitur prisonae predict without any more And so remittitur generally is of farre lesse moment in the award upon the habeas Corpus then remittitur quousque howsoever vulgar opinions raised out of the fame of the late Judgement be to the contrary All these things are of most known
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
all Lawes First generall reason The first generall reason is drawn à re ipsa from imprisonment ex visceribus causâ— be it close or other imprisonment which is divided into three parts First No man can be imprisoned at the will and pleasure of any but he that is bond and a villain for that imprisonment at will Et Tayler lâ—g haut et base are propria quarto modo to villaines Vide the writ de nativo habendo Secoâ—d 7. E. 3. fo 50. in the new print and 348 in the old 33. E. 3. tit Dom. 253. â—infant inpris â—itz Herbers fait un note de Ceo. But if Free-men of England might be imprisoned at the will and pleasure of the King by his Command then were they in worse case then bondmen and villaines for the Lord of a villain cannot command another to imprison his villain without cause as of disobedience or refusing toserve as is agreed in our books Third Imprisonment is accounted in Law civil death perdit domum familiam vicinos patriam his house his family his wife his children his neighbours his countrey and to live among wretched and wicked men If a man be threatned to be killed 39. H. 1. 65. c. he may avoid a Feoffment of lands gifts of goods c. so it is if he be threatned to be imprisoned he should do the like for that it is civill death Second generall reason The second generall reason is à minore ad majus minima poena corporalis est major qualibet pecuniaria But the King himself cannot impose a fyne upon any man but it must be done judicially by his Judges Bracton fol. 105. it is called duritia imprisonment 2 R. 3. 11. per Iusticiarios in Curia non per Regem in Camera and so it hath been resolved by all the Judges of England Third generall reason The third generall reason is drawn from the number and diversity of remedies which the Law giveth against imprisonment viz. breve de hoâ—ine replegiando de odio acia de habeas Corpus an appeal of imprisonment breve de manuâ—aptione The latter two of these are antiquated but the writ de odio acia is revived for that was given by the statute of Magna Charta ca. 26. and therefore though it were repealed by the statute of 28. E. 3. yet it is revived 42. E. 3. ca. 1. by which it is provided that all statutes made against Magna Charta are void Videw 2. ca. 29. Now the law would never have given so many remedies if the Free-men of England might be imprisoned at free will and pleasure Fourth generall reason The fourth generall reason is drawn from the extent and universality of the pretended power to imprison for it should extend not only to the Commons of the Realm and their posterity but also to the Nobles and their honourable Progenies to the Bishops and Clergie and their successours to all persons of what condition or sex or age soever to all Judges Officers c. whose attendance are necessary c. without exception of any person Fifth generall reason The fifth is drawn from the indefinitnesse of time the pretended power being limited to no time may be perpetuall during life Sixth generall reason The sixth à damno dedecore from the losse and dishonour of the English Nation in 2 respects First for their valour and prowesse so famous through the whole world Secondly for their industry for who indeavours to apply himself in any profession either of warre liberall science or merchandise c. if he be but Tennant at will of his Liberty And no Tennant at will will support or improve any thing because he hath no certain estâ—â—â— And thus it should be both dedecus and damnum to the English Nation and it should be no honour to the King to be King of slaves Seventh generall reason The seventh is drawn ab utili inutili for that it appeareth by the statute of 36. E. 3. That the execution of the statute of Magna Charta 5. E. 3. 25. E. 3. are adjudged in Parliament to be for the profit of the King and of his people Rot. Parl. â—6 E. 3. num 9. 20. And therefore this pretended power being against the profit of the King and of his people can be no more part of this prerogative Eighth generall reason 1. E. 2. de frâ—ngprison â—â—at unt pasche 18. E. 3. rot 33. coram Rege Bildestons case rot Parl. 28. H. 6. nu 16. Acts Apost cap. 25. v. the last The eighth generall reason is for it is safe for the King to expresse the cause of the commitment and dangerous for him to omit it for if any be committed without expressing the cause though he escape albeit the truth be it were for treason or felony yet the escape is neither felony nor treason But if the cause be expressed to be for suspition of treason or felony then the escapealbeit he be innocent is treason or felony Ninth generall reason The ninth generall reason is drawn from the authorities 16. H. 6. tit Monstrans â—efaits â—82 by the whole Court the King in his presence cannot command one to be arrested but an action of false imprisonment lieth against him that arresteth 22. H. 6. 46. Newton 1. H. 7. 4. the opinion of Markham Chief Justice to E 4. and the reason because the party hath no remedy Fortescue cap. 18. proprio ore nullus Regum usus est â— to commit any man c. 4 Eliz. Plowd Com. 236. the common Common Law hath so admeasured the Kings prerogative as he cannot prejudice any man in his inheritance and the greatest inheritance a man hath is the Liberty of his person for all other are necessary to it Major hâ—reditas venit unicuique nostrum à jure legibus quam à parentibus 25. E. 1. ca. 2. Confirm Cart. all judgements given against Magna Charta are void Objections Upon Conference with the Lords the objections were made by the Kings Attorney First object That these resolutions of the House were incompatible with a Monarchy that must govern by the state Bracton Answ. Whereunto it was answered that nibiltam proprium est imperii quam legibus vivere And again Attribuat Râ—x legi quodlex attribuat c. viz. dominationem imperium quia sine lege non potest esse Rex It can be no more prejudice to the King by reason of matter of state for if it be for suspition of treason misprision of treason or felony it may be by generall words expressed viz. pro suspitione proditionis 2 object To blind those that are committed one cause must be pretended and another intended especially when it toucheth matter of state Answ. Whereunto it was answered that all dissimulation especially in the course of Justice was to be avoided and soundnesse of truth to take place and therefore David that was both a King and
a Prophet prayed to Almighty God against dissimulation in these words Lord send me a sound heart in thy statutes that I be not ashamed where 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
made to the King and Lords which is against the statute made in the 25 Ed. 3. c. 4. 42 E. 3. c. 3. By the Statute 25 Ed. 3. cap. 4. It is ordained and established that no man from henceforth shall be taken by petition or suggestion made to the King or his Councell but by indictment or course of Law and acordingly it was enacted 42 E. 3. c. 3. the title of which statute is None shall be put to answer an accusation made to the King without presentment Then my Lord it being so although the cause should not need to be expressed in such manner as that it may appear to be none of these causes mentioned in the statute or else the Subject by this return loseth the benefit and advantage of these Laws which be their birth-right and inheritance but in this return there is no cause at all appearing of the first commitment and therefore it is plain that there is no cause for your Lordship to remand him but there is no cause you should deliver him since the writ is to bring the body and the cause of the imprisonment before your Lordship But it may be objected that this writ of Habeas Corpus doth not demand the cause of the first commitment but of the detaining onely and so the writ is satisfied by the return for though it shew no cause of the first commitment but of detaining onely yet it declareth a cause why the Gentleman is detained in prison this is no answer nor can give any satisfaction for the reason why the cause is to be returned is for the Subjects liberty that if it shall appear a good and sufficient cause to your Lordship then to be remanded if your Lordship think and finde it insufficient he is to be enlarged This is the end of this writ and this cannot appear to your Lordship unlesse the time of the first commitment be expressed in the return I know that in some cases the time is not materiall as when the cause of the commitment is and that so especially returned as that the time is not materiall it is enough to shew the cause without the time as after a conviction or triall had by Law But when it is in this manner that the time is the matter it self for intend what cause you will of the commitment yea though for the highest cause of treason there is no doubt but that upon the return thereof the time of it must appear for it being before triall and conviction had by Law it is but an accusation and he that is onely accused and the accusation ought by Law to be let to bail But I beseech your Lordship to observe the consequence of this Cause If the Law be that upon this return this Gentleman should be remanded I will not dispute whether or no a man may be imprisoned before he be convicted according to the Law but if this return shall be good then his imprisonment shall not continue on for a time but for ever and the Subjects of this Kingdome may be restrained of their liberties perpetually and by Law their can be no remedy for the Subject and therefore this return cannot stand with the Laws of the Realm or that of Magna Charta Nor with the statute of 28 Ed. 3. ca. 3. for if a man be not bailable upon this return they cannot have the benefit of these two Laws which are the inheritance of the Subject If your Lordship shall think this to be a sufficient cause then it goeth to a perpetuall imprisonment of the subject for in all those causes which may concern the Kings Subjects and are appliable to all times and cases we are not to reflect upon the present time and government where justice and mercy floweth but we are to look what may betide us in the time to come hereafter It must be agreed on all sides that the time of the first commitment doth not appear in this return but by a latter warrant from the Lords of the Councell there is a time indeed expressed for the continuing of him in prison and that appeares but if this shall be a good cause to remand these Gentlemen to prison they may lie there this seven yeares longer and seven yeares after them nay all the dayes of their lives And if they sue out a writ of Habeas corpus it is but making a new warrant and they shall be remanded and shall never have the advantage of the Laws which are the best inheritance of every Subject And in Ed. 6. fol. 36. the Laws are called the great inheritance of every Subject and the inheritance of inheritances without which inheriritance we have no inheritance These are the exceptions I desire to offer to your Lordship touching the return for the insufficiency of the cause returned and the defect of the time of the first commitment which should have been expressed I will not labour in objections till they be made against me in regard the sttatute of Westminster primo is so frequent in every mans mouth that at the Common Law those men that were committed in four cases were not replevisable viz. those that were taken for the death of a man or the commandment of the King or his Justices for the forest I shall speak something to it though I intend not to spend much time about it for it toucheth not this Case we have in question For that is concerning a Case of the Common Law when men are taken by the Kings writs and not by word of mouth and it shall be so expounded as Master Stamford fol. 73. yet it is nothing to this Case for if you will take the true meaning of that statute it extends not at all to this writ of Habeas corpus for the words are plain they shall be replevisable by the Common writ that is by the writ de homine replegiando directed to the Sheriffe to deliver them if they were baileable but the Case is above the Sheriffe and he is not to be Judge in it whether the cause of the commitment be sufficient or not as it appears in Fitz Herbert de homine replegiando and many other places and not of the very words of the statute this is clear for thereby many other causes mentioned as the death of a man the commandment of the Justices c. In which the statute saith men are not replevisable but will a man conceive that the meaning is that they shall not be bailed at all but live in perpetuall imprisonment I think I shall not need to spend time in that it is so plain let me but make one instance A man is taken de morte hominis he is not baileable by writ saith this statute that is by the common writ there was a common writ for this Case and that was called de odio acia as appeareth Bracton Coron 34. this is the writ intended by the statute which is a common writ and not a speciall writ But my
Lord as this writ de odio acia was before this statute so it was afterwards taken away by the statute of 28 Ed. 3. cap. 9. But before that sttatute this writ did lie in the speciall Case as is shâ—wn in Brooks 9 th Reports Powlters Case and the end of this writ was that the Subject might not be too long detained in prison as till the Justices of Eyre discharged them so that the Law intended not that a man should suffer perpetuall imprisonment for they were very carefull that men should not be kept too long in prison which is also a Liberty of the Subject and my Lord that this Court hath bailed upon a suspicion of high treason I will offer it to your Lordship when I shall shew you presidents in these cases of a commitment by the Privy Councell or by the King himself But before I offer these presidents unto your Lordship of which there be many I shall by your Lordships favour speak a little to the next exception and that is the matter of the return which I find to be per speciale mandatum domini Regis 8. and what is that it is by this writ there may be sundry commands by the King we find a speciall command often in our Books as in the statute of Marlborough cap. 8. they were imprisoned Rediss shall not be delivered without the speciall command of our Lord the King and so in Bracton De Actionibus the last chapter where it appears that the Kings commandment for imprisonments is by speciall writ so by writ again men are to be delivered for in the case of Rediss ' or Post Rediss ' if it shall be removed by a Certiorare is by a speciall writ to deliver parties so that by this appears that by the Kings commandment to imprison and to deliver in those cases is understood this writ and so it may be in this case which we have heard And this return here is a speciall Mandatum it may be understood to be under some of the Kings Seals 42 Ass. and ought to be delivered and will you make a difference between the Kings command under his seal and his command by word of mouth what difference there is I leave it to your Lordships judgement but if there be any it is the more materiall that it should be expressed what manner of command it was which doth not here appear and therefore it may be the Kings command by writ or his command under his Seal or his command by word of mouth alone And if of an higher nature there is none of these commands then the other doubtlesse it is that by writ or under seal for they are of record and in these the person may be bailed and why not in this As to the legall forme admitting there were substances in the return yet there wants legall form for the writ of Habeas Corpus is the commandment of the King to the Keeper of the prisons and thereupon they are to make return both of the body and of the cause of the commitment and that cause is to appear of them who are the immediate Officers And if he doth it by signification from another that return is defective in Law and therefore this return cannot be good for it must be from the Officer himself and if the cause returned by him be good it bindes the prisoners The warrant of the Lords was but a direction for him he might have made his return to have been expresly by the Kings commandment there was a warrant for it I shall not need to put you cases of it for it is not enough that he returns that he was certified that the commitment was by the Kings command but he must of himself return this fact as it was done And now my Lord I shall offer to your Lordship presidents of divers kindes upon commitments by the Lords of the Privy Councel upon commitments by the speciall command of the King and upon commitments both by the King the Lords together And howsoever I conceive which I submit to your Lordship that our case will not stand upon presidents but upon the fundamentall Laws and Statutes of this Realm and though the presidents look the one way or the other they are to be brought back unto the Laws by which the Kingdome is governed In the first of Henry the eighth Rot. Parl. one Harison was committed to the Marshalsey by the command of the King and being removed by Habeas Corpus into the Court the cause returned was that he was committed per mandatum Domini Regis and he was bailed In the fortieth of Elizabeth Thomas Wendon was committed to the Gatehouse by the commandment of the Queen and Lords of the Councell and being removed by an Habeas Corpus upon the generall return and he was bailed In 8 Iacobi one Caesar was committed by the Kings commandment and this being returned upon his Habeas Corpus upon the examination of this case it doth appear that it was over-ruled that the return should be amended or else the prisoner should be delivered The presidents concerning the commitment by the Lords of the Councell are in effect the same with these where the commitment is by the reason why the cause of the commitment should not be shewn holds in both cases and that is the necessity of suit and therefore Master Stamford makes the command of the King and that of the Lords of the Privy Councell to be both as one and to this purpose if they speak he speaks and if he speaks they speak The presidents that we can shew you how the Subject hath been delivered upon commitment by the Lords of the Councell as in the time of Henry the eight as in the times of Queen Elizabeth Queen Mary are infinite as in the ninth of Elizabeth Thomas Lawrence was committed to the Towre by the Lords of the Councell and bailed upon an Habeas Corpus In the 43 of Elizabeth Calvins case In the third of Elizabeth Vernons case These were committed for high treason and yet bailed for in all these cases there must be a conviction in due time or a deliverance by Law There be divers other presidents that might be shewn to your Lordship In 12 Iacobi Miles Renards In 12 Iacobi Rot. 155. Richard Beckwiths case In 4 Iacobi Sir Thomas Monson was committed for treason to the Towre of London and afterwards was brought hither and bailed and since our case stands upon this return and yet there is no sufficient cause in Law expressed in the return of the detaining this Gentleman and since these presidents do warrant our proceedings my humble suit unto this Court is that the Gentleman Sir Iohn Henningham who hath petitioned his Majesty that he may have the benefit of the Law and his Majesty hath signified it it is his pleasure that justice according to the Law should be administred at all times in generall to all his Subjects and particularly to
these Gentlemen which is their birth-right My humble suit to your Lordship is that these Gentlemen may have the benefit of that Law and be delivered from their imprisonment The Argument of Master Noye upon the Habeas corpus May it please your Lordship I am of Councell with Sir Walter Earl one of the prisoners at the Barre the return of this writ is as those that have been before they are much of one tenour and as you have heard the tenour of that so this Gentleman coming hither by an Habeas Corpus I will by your Lordships favour read the writ Carolus Dei Gratia c Iohanni Lylo Milit ' Guardian ' Prison ' nostrae de le Fleet Salut ' Praecipimus tibi quod corpus Walteri Earl Milit ' in prison ' nostra sub custodia tua detent ' ut dicit una cum causa detentionis suae quocunque nomine praedict ' Walter ' censeat in eadem Habeas Corpus ad subjiciendum recipiendum ea quae curia nostra de eo ad tunc ibidem ordin ' conting ' in hac parte haec nallatenus omit ' periculo incumbent ' habeas tibi hoc breve Test ' Hyde apud Westminster quarto die Novembris Anno 8. Executio istius brevis patet in quadam schedula huic brevi annexat ' Respons Johan ' Liloe Guardian ' Prison ' de le Fleet. Ego Iohannes Lyloe Mil ' Guardian ' Prison ' domini Regis de le Fleet Serenissimo Domino Regi apud Westminster ' 8. Post receptionem hujus brevis quod in hac schedula est mentionat ' Certifico quod Walter Earl miles in eodem brevium nominat ' detentus est in prisona de le Fleet sub custodia mea praedict ' per speciale mandatum domini Regis mihi significatum per VVarrantum duorum aliorum de Privato Concilio per Honorabilissimi dicti Domini Regis cujus quidem tenor sequitur in haec verba Whereas Sir Walter Earl Knight was heretofore committed to your custody these are to will and require you still to detain him letting you know that both his first commitment and this direction for the continuance of him in prison were and are by his Majesties speciall commandment from White Hall 7 Novembris 1627. Thomas Coventree C. S. Henry Manchester Thomas Suffolk Bridgewater Kellie R. Duneln ' Thomas Edmunds Iohn Cook Marlborough Pembrook Salisbury Totnes Grandisson Guliel ' Bath and Wells Robert Nanton Richard Weston Humphrey Mayes To the Guardian of the Fleet or his Deputy Et haec est causa detentionis praedict ' Walteri Earl sub custodia mea in Prison ' praedict ' Attamen corpus ejusdem Walteri coram Domino Rege ad diem locum praedictum post receptionem brevis praedict ' parat ' habeo prout istud breve in se exiget requiret Respon ' Johan ' Liloe milit ' Guardian ' Prison de le Fleet. My Lord the first Habeas corpus bears date the 4 of November then there is an Alias habeas bears Teste after that and the tenour thereof is a command to the Warden of the Fleet quod habeas corpus Walteri Earl coram nobis ad subjiciendum recipiendum ea quae curia nostra de eo c. ordin ' conting And the Warden of the Fleet he certifies as your Lordship have heard May it please your Lordship I desire as before was desired for the other Gentlemen that Sir Walter Earl may be also bailed if there be no other cause of his imprisonment for if there were a cause certified and that cause were not sufficient to detain him still in prison your Lordship would bail him and if a man should be in worse case when there is no cause certified at all that was very hard The writ is that he should bring the prisoner coram nobis before the King the end of that is ad subjiciendum recipiendum now I conceive that though there be a signification of the Kings pleasure to have this Gentleman imprisoned yet when the King grants this writ to bring the prisoner hither ad subjiciendum recipiendum his pleasure likewise is to have the prisoner let go if by Law he be not chargeable or otherwise to detain him still in prison if the case so require it I will put your Lordship in mind of a case and it was Pasch. 9. Ed. 3. M. 3. I will cite by the placita because my Book is not paged as other Books are it is in the case of a Cessavit In that case there were two things considerable the one that there was a signification of the Kings pleasure past and that determined with him the other that though there was a signification of the Kings pleasure before which was yet there comes after that a writ and that was another signification of the Kings pleasure that the prisoner should be brought hither ad subjiciendum to submit himself to punishment if he have deserved it or ad recipiendum to receive his enlargement and be delivered if there be no cause of his imprisonment And if upon an Habeas corpus a cause of commitment be certified that cause is to be tried here before your Lordship But if no cause be shewn then the proceedings must be ut curia nostra ad mar ' contigerit the Court must do that which stands with Law and Justice and that is to deliver him My Lord I shall be bold to move one word more touching this return I conceive that every Officer to a Court of Justice must make his return of his own act or of the act of another and not what he is certified of by another But in this case the Warden of the Fleet doth not certifie himself of himself that this Gentleman was commanded to him by the King but that he was certified by the Lords of the Councill that it was the Kings pleasure that he should detain him But in our case the Warden of the Fleet must certifie the immediate cause and not the cause of the cause as it doth by this return Detentus est sub custodia mea per speciale mandatum Domini Regis mihi significatum per Warrantum duorum de Privato Concilio that is not the use in Law but he ought to return the primary cause and not the subsequent cause as in 32 Edw. 3. return Rex vicecom ' 87. in a writ De homine replegiando against an Abbot the Sheriffe returns that he hath sent to the Bayliffe of the Abbot and he answered him that the party was the Abbots villain and so he cannot deliver him that is held an insufficient return and a new Alias was granted but if the Sheriffe had returned that the Abbot did certifie him so it had been good but he must not return what is certified him by another In one of the presidents that hath been noted as that of Parker 22 Hen. 8. there the Guardian of the prison certifies that
nob ' significavit Tibi praecipimus quod praed Thom ' cum tibi constare poterit ipsum ab excom ' praedict ' per praedict ' Official ' absolvi à Prison ' qua detinetur si ea occasione non alia detineat ' in eadem sine dilatione deliberari fac ' And yet it cannot be said that although the King recited in his writ that the Archbishop had signified unto him that he had written unto the Officiall of the Archdeacon that the King said that the Archbishop had written for he doth not affirm so much precisely but onely referreth himself unto the Certificate of the Archbishop Plowden 122 Buckley and Rivers case it is put that if a man will bring an action of debt upon an obligation and declare that it appears by the obligation that the defendant stood bound to the plaintiffe in twenty pounds the which he hath not paid this declaration is not good insomuch as it is not alledged by matter in fact that he was bound unto him in twenty pound but the deed is alledged by recitall onely 21. Ed. 4. 43. Plowden Com' 126. 143. Browning and Beestons case The Abbot of Waltham being appointed collector of a Disme granted unto the King in discharge of himself in the Exchequer pleadeth Quo inter recordat ' Ter Pasc. anno 25. domini Regis Edvardi 1. inter alia continetur quod R. 2. had granted unto the predecessors of the said Abbot that he nor any of his successours should be any collectors of any dismes to be granted afterwards and it was adjudged that this plea was ill For the saying it was contained among the Records it is no precise affirmation that the King had granted to his predecessors that they should be discharged of the collecting any dismes but it is onely an allegation by way of recitall and not by precise affirmation the plea may not be good 2 3 Mar. Dier 117. 118. the plaintiffes reply in barre of all pleadeth that Iohn Abbot of W. was seised of his lands in right of his Church and so seised by the assent of the tenant by indenture 14 Hen. 4. testat ' quod praedict ' Abbat ' convent ' demiserunt tradiderunt unto the plaintiffe and ruled that this form of pleading was ill insomuch as it was not alledged by precise affirmation quod demiserunt sed indentura testatur quod demiserunt which is not sufficient insomuch as it is onely an allegation by way of recitall that the Indenture doth witnesse and the same Indenture may witnesse so much and yet not be a demise And if in pleading there must be direct affirmation of the matter alledged then à fortiore in a return which must be more precise then in pleading and so by all the cases I have formerly touched it appeareth that this return is no expresse affirmation of the keeper of the Gate-house that Sir Iohn Corbet is detained in prison by the speciall commandment of the King but onely an affirmation of the Lords of the Councell who had signified unto him that his detainment in prison was by speciall command of the King The return which ought to be certain and punctuall and affirmative and not by way of information out of another mans mouth may not be good as appeareth by the severall books of our law 23 Ed. 3. Rex vic' 181. upon a Homine replegiando against the Abbot of C. the Sheriffe returneth that he had sent to the Bailiffe of the Abbot that answered him that he was the villain of the Abbot by which he might not make deliverance and a Sicut alias was awarded for this return was insufficient insomuch that he had returned the answer of the Bailiffe of the Abbot where he ought to have returned the answer of the Abbot himself out of his own mouth Trin. 22. Ed. 2. Rot. 46. parent vill ' Burg. Evesque de Norwich repl ' 68. Nat. Br. Case 34. Fitz. Nat. Br. 65. 34. Ed. 3. Excom ' 29. the case appeareth to be such in a trespasse the defendant pleadeth the plaintiffe is excommunicate and sheweth forth the letter of the Bishop of Lincoln witnessing that for divers contumacies c. and because he had certified no excommunic ' done by himself but by another the letter of excommunication was annulled for the Bishop ought to have certified his own act and not the act of another Hillarii 21 Hen. 8. Rot. 37. it appeareth by the return of an Habeas corpus that Iohn Parker was committed to prison for security of the peace and for suspicion of felony as per mandatum Domini Regis nunciatum per Robertum Peck de Cliffords Inne and upon his return Iohn Parker was bailed for the return Commiss fuit per speciale mandatum domini Regis nunciatum per Robertum Peck was not good insomuch that it was not a direct return that he was committed per mandatum Domini Regis And for the first point I conclude that this return is insufficient in form insomuch that it doth not make a precise and direct return that he was committed and detained by the speciall command of the King but onely as he was signified by the warrant of the Lords of the Councell which will not serve the turn and upon the book of 9 Hen. 6. 44. the return of the cause of a mans imprisonment ought to be precise and direct upon the Habeas corpus insomuch as thereby to be able to judge of the cause whether it be sufficient or not for there may not any doubt be taken to the return be it true or false but the Court is to accept the same as true and if it be false the party must take his remedy by action upon the case And as concerning the matter of the return it will rest upon these parts First whether the return be that he is detained in prison by speciall commandment of our Lord the King be good or not without shewing the nature of the commandment or the cause whereupon the commitment is grounded in the return The second is whether the time of the first commitment by the commandment of the King not appearing to the Court is sufficient to detain him in prison Thirdly whether the imprisonment of the subjects without cause shewed but onely by the commandment of the King be warantable by the laws and statutes of this Realm As unto the first part I find by the books of our law that commandments of the King are of severall natures by some of which the imprisonment of a mans body is utterly unlawfull and by others of them although the imprisonment may be lawfull yet the continuance of him without bail or mainprise will be utterly unlawfull There is a verball command of the King which is by word of mouth of the Kings onely and such commandment by the King by the books of our law will not be sufficient either to imprison a man or to continue him in prison 16. 6.
cause of his imprisonment to be shewn upon the return so that the Court may adjudge of the cause whether the cause of the imprisonment be lawfull or not and because I will not trouble the Court with so many presidents but such as shall suit with the cause in question I will onely produce and vouch such presidents whereas the party was committed either by the commandment of the King or otherwise by the commandment of the Privy Councell which Stampford fol. 72. tearmeth the mouth of the King such acts as are done by the Privy Councell being as Acts done by the King himself And in all these causes you shall find that there is a cause returned as well as a speciale mandatum domini Regis c. or mandatum Privati Concilii domini Regis whereby the Court may adjudge of the cause and bail them if they shall see cause In the eighth of Henry the seventh upon return of an Habeas corpus awarded for the body of one Roger Sherry it appeareth that he was committed by the Mayor of Windsor for suspicion of felony and ad sectam ipsius Regis pro quibusdam feloniis transgressionibus ac per mandatum domini Regis 21 Hen. the seventh upon the return of an Habeas corpus sent for the body of Hugh Pain it appeared that he was committed to prison per mandatum dominorum Privati Concilii domini Regis pro suspicione feloniae Primo Henrici Octavi Rot. 9. upon the return of an Habeas corpus sent for the body of one Thomas Harrison and others it appears that they were committed to the Earl of Shrewsbury being Marshall of the houshould Per mandatum Domini Regis pro suspicione feloniae pro homicidio facto super Mare 3 4 Philip. Mariae upon a return of an Habeas corpus sent for the body of one Peter Man it appeareth that he was committed pro suspicione feloniae ac per mandatum Domini Regis Reginae 4 5 Philippi Mariae upon the return of an Habeas corpus sent for the body of one Thomas Newport it appeared that he was committed to the Tower pro suspicione contrafact monetae per privatum Concilium domini Regis Reginae 33 Elizabethae upon the return of an Habeas corpus for the body of one Lawrence Brown it appeareth that he was committed per mandatum Privati Concilii dominae Reginae pro diversis causis ipsam Reginam tangen ac etiam pro suspicione proditionis So as by all these presidents it appeareth where the return is either Per mandatum domini Regis or Per mandatum dominorum Privati Concilii domini Regis there is also a cause over and besides the mandatum returned as unto that which may be objected that per mandatum domini Regis or Privati Concilii domini Regis is a good return of his imprisonment I answer First that there is a cause for it is not to be presumed that the King or Councell would commit one to prison without some offence and therefore this mandatum being occasioned by the offence or fault the offence or fault must be the cause and not the command of the King or Councell which is occasioned by the cause Secondly it apeares that the jurisdiction of the Privy Councell is a limited jurisdiction for they have no power in all causes their power being restrained in certain causes by severall Acts of Parliament as it appeareth by the statute of 20 Edward the third c. 11. 25. Ed. the third c. 1. stat 4. the private petition in Parliament permitted in the 1 of R. 2. where the Commons petition that the Privie Councell might not make any Ordinance against the Common Law Customes or Statutes of the Realm the fourth of Henry the fourth ca. 3. 13 Hen. the fourth 7â—31 Henry the sixth and their jurisdictions being a limited jurisdiction the cause and grounds of their commitment ought to appear whereby it may appear if the Lords of the Councell did commit him for such a cause as was within their jurisdiction for if they did command me to be committed to prison for a cause whereof they had not jurisdiction the Court ought to discharge me of this imprisonment and howsoever the King is Vicarius Dei in terra yet Bracton cap. 8. fol. 107. saith quod nihil aliud potest Rex in terris cum sit Minister Dei Vicarius quam solum quod de jure potest nec obstat quod dicitur quod Principi placet legis habet vigorem quia sequitur in fine legis cum lege Regia quae de ejus imperio lata est id est non quicquid de voluntate Regis temere praesumptum est sed animo condendi Iura sed quod consilio Magistratuum suorum Rege author praestant habita super hoc deliberatione tract rect fuer definit Potestat itaque sua juris est non injuriae The which being so then also it ought to appear upon what cause the King committeth one to prison whereby the Judges which are indifferent between the King and his Subjects may judge whether his commitment be against the Laws and Statutes of this Realm or not Thirdly it is to be observed that the Kings command by his Writ of Habeas corpus is since the commandment of the King for his commitment and this being the latter commandment ought to be obeyed wherefore that commanding a return of the body cum causa detentionis there must be a return of some other cause then Per mandatum domini Regis the same commandment being before the return of the Writ Pasch. 9. E. 3. pl. 30. fol. 56. upon a Writ of Cessavit brought in the County of Northumberland the Defendants plead That by reason the Country being destroyed by Warres with the Scots King Edward the second gave command that no Writ of Cessavit should be brought during the Warres with Scotland and that the King had sent his Writ to surcease the Plea and he averreth that the Warres with Scotland did continue Hearle that giveth the Rule saith That we have command by the King that now is to hold this Plea wherefore we will not surcease for any writ of the King that is dead and so upon all these reasons and presidents formerly alledged I conclude that the return that Sir Iohn Corbet was committed and detained in prison Per speciale mandatum domini Regis without shewing the nature of the commandment by which the Court may judge whether the commandment be of such a nature as he ought to be detained in prison and that without shewing the cause upon which the commandment of the King is grounded is not good As unto the second part which is Whether the time of the commitment by the return of the Writ not appearing unto the Court the Court ought to detain him in prison or no I conceive that he ought not to be continued in prison admitting that the first
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
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
given an account of their doings The Lord Say saith he wondred there should be any question made of this business because in his opinion this being the highest Court did admire of no appeal The President said the Judges did not do this by way of appeal but as the most common way for them this being a matter concerning the Kings prerogative Lord Say saith if they will not declare themselves we must take into consideration the point of our priviledge The Duke saith this was not done by the Judges as fearing to answer but of respect to the King And now his brother was come with answer from the King that they might proceed Order was taken that this passage should not be entered into the Journal Book and so Judge WHITLOCK spake MY Lords we are by your appointment here ready to clear any aspersion of the House of Commons in their late presentment upon the Kings-bench that the Subject was wounded in this Judgement there lately given If such a thing were my Lords your Lordships not they have the power to question and Judge the same But my Lords I say there was no Judgement given whereby either the prerogative might be inlarged or the eight of the subject trenched upon It is true my Lords in Michaelmas Term last fower Gentlemen petitioned for a Habeas Corpus which they obtained and Councel was assigned unto them the return was per spialem mandatum Domini Regis which likewise was made known unto us under the hands of eighteen privy Councellours Now my Lords if we had delivered them presently upon this it must have been because the King did not shew cause wherein we should have judged the King had done wrong and this is beyond our knowledge for he might have committed them for other matters then we could have imagined But they might say thus they might have been kept in Prison all their dayes I answer no but we did remit them that we might better advise of the matter and they the next day might have had a new Writ if they had pleased but they say we ought not to have denied bayl I answer if we had done so it must needs have reflected upon the King that he had unjustly imprisoned them and it appears in Dyer 2. Eliz. that divers Gentlemen being committed and requireing Habeas Corpus some were bayled others remitted whereby it appears much is left to the discretion of the Judges For that which troubleth so much remittitur quousque this my Lords was onely as I said before to take time what to do and whereas they will have a difference betwixt remittitur and remittitur quousque my Lords I confess I can finde none but these are new inventions to trouble old Records And herein my Lords we have dealt with knowledge and understanding for had we given a Judgement the party must thereupon have rested every Judgement must come to an issue in matter in fact or demur in point of Law here is neither therefore no Judgement For endeavouring to have a Judgement entered it is true Mr. Attorney pressed the same for his Masters service but we being sworn to do right betwixt the King and his subjects commanded the Clark to make no entry but according to the old form and the rule was given by the Chief Justice alone I have spent my time in this Court and I speak confidently I did never see nor know by any Record that upon such a Retorn as this a man was bayled the King not first consulted with in such a Case as this The Commons House do not know what Letters and Commands we receive for these remain in our Court and were not viewed by them for the rest of the Matters presented by the House of Commons they were not in agitation before us whether the King may commit and how long he may detain a man committed therefore having answered so much as concerneth us I desire your Lordships good constructions of what hath been said Iudge IONES SAid he was here to deliver before us what judgement was given before them concerning the Habeas Corpus he answered no Judgement was given and the Matter of Fact was such as my brother delivered unto you yesterday These 4. Gentlemen were committed to the Flect-Gate-House and Marshall of the Kings House-hold 4. Returns were made upon the Writs and every one of them had a Councellour appointed who had Coppies of the Returns A rule was granted their Councel heard and exception taken to the Return because it did not shew cause of their caption These were of no force in the opinion of the Judges the next exception was because no cause of their commitment was shewed which the Judges held to be all one in point of Law Then my Lords they alleadged many Presidents and Statutes of themselves which the Kings Attorney answered That Persons committed by the King or Councel were never bayled but his pleasure was first known We agreed at the Chamber of the Chief Justice that all the Statutes alleadged are in force but whether we should bayl them or no was the question therefore we remitted them quousque After which Mr. Attorney required a Judgement might be entered I commanded the Clark he should not suffer any such thing to be done because we would be better advised But some will say our Act is otherwise I answered no for we have done no more then we do upon ordinary Writ when we purpose to be better advised and that was onely an Interlocutorie order But my Lords put the case a Habeas Corpus should be granted for one that is committed by the House of Commons would they thinck you take it well he should be bayled at his first coming to the Court I thinck they would not and I thinck the King would have done so in this case now my Lords there is a Petition of Right and a Petition of Grace to be bayled is a matter of Grace therefore if a man be brought upon an Habeas Corpus and not bayled he cannot say the Court hath done him any wrong I have now served seven years Judge in this Court and my conscience beareth me witness that I have not wronged the same I have been thought sometimes too forward for the Liberty of the Subject I am my self Liber homo my Ancestors gave their voice with Magna Charta I enjoy that House still which they did I do not now mean to draw down Gods wrath upon my posterity and therefore I will neither advance the Kings prerogative nor lessen the Liberty of the Subject to the danger of either King or People this is my profession before God and your Lordships Iudge DODDERIDGE SAith it is no more fit for a Judge to decline to give an account of his doings then for a Christian of his Faith God knoweth I have endeavoured alwayes to keep a good conscience for a troubled one who can bear the Kingdom holds of none but God and Judgements do not pass privately
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
transcendent and boundless The second reason delivered by their Lordships was that the King is Soveraign That as he is Soveraign he hath power and that that Soveraign power is to left for my part I would leave it so as not to mention it but if it should be expressed to be left in this Petition as it is proposed it must admit something to be left in the King of what we pray or at least admit some Soveraign power in his Majestie in these Priviledges which we claim to be our Right which would frustrate our Petition and destroy our Right as I have formerly shewed The third reason given from this addition was that in the statute Articuli super Chartas there is a saving of the right and seigniory of the Crown To which I give these answers That Magna Charta was confirmed above 30 times and a general saving was in none of these Acts of confirmation but in this onely and I see no cause we should follow one ill and not 30 good Presidents and the rather because that saving produced ill effects that are well known That saving was by Acts of Parliament The conclusion of which Act is that in all those Cases the King did will and all those that were at the making of that Ordinance did intend that the Right and Seigniory of the Crown should be saved By which it appears that the saving was not in the Petition of the Commons but added by the King for in the Petition the Kings will is not expressed In that Act the King did grant and depart with to his people divers Rights belonging to his prerogative as in the first Chapter he granted that the people might choose three Men which might have power to hear and determine complaints made against those that offended in any point of Magna Charta though they were the Kings officers and to fine and ransome them and in the 8. 12. and 19. Chapter of that Statute the King departed with other prerogatives and therefore there might be some reason of the adding of that Soveraign by the Kings Councel But in this Petition we desire nothing of the Kings Prerogative but pray the enjoying of our propper and undoubted Rights and Priviledges and therefore there is no cause to add any words which may imply a saving of that which concerns not the matter in the Petition The 4. reason given by their Lordships was that by the mouth of our Speaker we have this Parliament declared that it was far from our intention to incroach upon his Majesties Prerogative and that therefore it could not prejudice us to mention the same resolution in an addition to this Petition To which I answer that that declaration was a general answer to a Message from his Majestie to us by which his Majestie expressed that he would not have his Prerogative streitned by any new explanation of Magna Charta or the rest of the Statutes and therefore that expression of our Speakers was then propper to make it have reference to this Petition there being nothing therein conteined but particuler Rights of the Subject and nothing at all concerning his Majesties Prerogative Secondly that answer was to give his Majectie satisfaction of all our proceedings in general and no man can assign any particuler in which we have broken it and this Petition justifies it self that in it we have not offended against the protestation and I know no reason but that this declaration should be added to all our Laws we shall agree on this Parliament as well as to this Petition The last reason given was that we have varied in our Petition from the words of Magna Charta and therefore it was well necessary that a saving should be added to the Petition I answer that in the Statute 5. E. 3. 25. E. 3. 28. E. 3. and other Statutes with which Magna Charta is confirmed the words of the Statute of explanation differ from the words of Magna Charta it self the words of some of the Statutes of explanation being that no man ought to be apprehended unless by indictment or due process of Law the other statutes differing from the words of Magna Charta in many other particulars and yet there is no saving in those Statutes much less should there be any in a Petition of Right these are the answers I have conceived to the reasons of their Lordships and the exposition I apprehend must be made of the proposed words being added to our Petition And therefore I conclude that in my opinion we may not consent to this addition which I submit to better Judgements The Reasons of the Commons House delivered by M r. GLANUILE why they cannot admit of the Propositions tendered unto them by the Lords May it please your Lordships I Am commanded by the House of Commons to deliver unto your Lordships their reasons why they cannot admit of the Proposition tendered unto them by you but for an introduction into the busines please you to remember that a Petition of Right was shewed to your Lordships wherein we desired you would joyn with us a Petition my Lords fitting for these times grounded upon Law and seeking no more then the Subjects just Liberty The Petition consisted of 4. parts The first touching Loan Aids and Taxes The second touching imprisonment of mens Persons The third touching Billeting of souldiers The fourth touching Commissions issued for Martial Law and put in execution upon several Persons Groaning under the burthen of these we desired remedy and wish your Lordships would joyn with us which you having taken into consideration we must confess have dealt nobly and freely with us not to conclude any thing till you hear our just reasons for which we thank your Lordships and hope your Lordships will value those reasons which we shall now offer unto your Lordships The work of this day will make a happy issue if your Lordships please to relinquish this as we formerly upoâ— conference with your Lordships have done some other things For the Proposition my Lords we have debated it throughly in our House and I am commanded to deliver unto you the reasons why we cannot infert this clause Neither your Lordships nor we desire to debate Liberty beyond the due bounds or to incroach upon the Kings Prerogative and lessen the bounds thereof The first reason I am to lay down is touching Soveraign power which I beseech you not to accept as my own being but a weak Member of that strong body but as the reasons of the whole House upon great and grave considerations First my Lords the words Soveraign power hath either reference or no reference to the Petition if no reference then superfluous if a reference then dangerous and operative upon the Petition and we think your Lordships purposes is not to offer unto us any thing that may be vain or to the hinderance of any thing wherein you have already joyned with us The Petition declareth the Right of the Subject which
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
Iames Perotte SIr Iames Perotte complaineth further of some instruments of the Bishop of London and Doctor Turner who denied the License of printing the Articles of Ireland That diverse books have been licensed by the Bishop of Londons Chapplains and then refuse the same declaring they are of a contrary opinion and have given license to Mr. Chomley and Mr. Butterfield and therefore would not give license to these Mr. Pym MAster Pym doth make a full Report of all the proceedings against Mr. Mountague since the last Parliament of King Iames. Sir Robert Phillips REported from Mr. Attorney that my Lord of Dorset spoke to him to hasten the Pardons and that he received a Warrant from the King for drawing them that my Lord Carleton brought another Warrant from the King for drawing these pardons telling him that he must make expedition therein and he must draw the same as the Councel of the parties did direct the same That Mr. Attorney having made a rough Draught being often urged to expedition by the Bishop of Winchester he sent the same to the Bishop who inter-lined and corrected the same adding the names of Cosens Manwering and Sibthorp to the pardon That Mr. Attorney may be asked whether any of these Lords were made acquainted with the affidavit about Cosens A Messenger is sent to the Lord Keeper to know the reason wherefore he made stop of the Great Seal and by what solicitations he was prest thereunto Thursday 5. A Petition in complaint of an imposition upon Mault by the Citie of London was this day preferred to the House which is prefered to the Committee for Grievances Some differences being observed in the Articles as in the twentieth Article c. a Committee is to Compare the old and new Articles with the Records at Lambeth and consider how all those differences come in Mr. Long COmplaineth that a Prosecution hath been against him in the Star-chamber for sitting in this House the last Session he being High Sheriff of Wiltshire and chosen Burgess of Bath in Somersetshire The Preachers are to be chosen to morrow at the Committee for Religion Mr. Ogle IS called who averreth his Petition and will prove the same by witnesses It is Ordered that Cosens shall have intimation to attend to answer here if he will on Munday come fortnight to be sent for by a Serâ—cant at Arms and if he be not of the Convocation but if he be then to have notice by the Speakers letters and if thereupon he appear not then to proceed with him as is usuall in like Cases If Witnesses be sent for to this House in any Publick business they are to pay their own Charges Secretarie Cook SAith He hath very now received from a Noble person this Message from his Majestie That he hath appointed the eighteenth of this Moneth for the Fast for this place and the twentieth of the next Moneth for the whole king dom Sir Robert Phillips MOveth in the behalf of the Lord Peircie that having a Cause in dispute in the Lords House and three Members of this House being of his Counsel desires they may have leave to plead his Cause Which being conceived to be a Cause that is not to receive any Judgement here it is granted Friday A Petition exhibited against one Wittington a Papist in Northumberland Ordered to be sent for by a Serjeant at Arms. Mr. Harris of St. Margarets Westminster Mr. Harris of Hanwell in Oxfordshire Mr. William Fitz-Ieofferies of Cornwall are chosen for three Preachers for the day of the Fast and for the precedence is referred to the Preachers themselves Mr. Shervill REported one Parson Scall procured the Pardon for Mountague one Bartholomew Baldwin solicited the Pardon for Manwering There is also another Pardon found to be granted to Manwering pardoning the Judgement late he had given by the High Court of Parliament and all sums due to the King thereby Sir Nathaniel Ritch THat we may do somewhat which may give content to those who sent us hither and make expedition to the business of his Majestie and the Common-wealth That therefore the business of Mr. Mountague may be expedited to the Lords that they may enter into these things as well as we The Councel of Mr. Iones the Printer are to be heard upon Munday next Sir O. Roberts REporteth from the Committee sent to Mr. Attorney that Mr. Attorney staid for the Affidavits taken by Sir Euball Thelwall That one Health a Gentleman of Grays-Inne told Mr. Attorney that Cosens should say that the King was not supream of the Church and that he had no more to do with Religion than he that rubs his horse heels Mr. Attorney acquainted the King whereupon the King charged him to make a strict Inquisition herein but the King would not believe the same to be true Mr. Attorney sent for his Kinsman again and being examined he said so as affidavits were made thereon There was further certificate from the Dean and others at Durham so that the business was much lessened thereby but Mr. Attorney pressing the business further casually met with the Bishop of Winchester who said to Mr. Attorney that this business will come to nothing and King that made the affidavit was but a vain fellow The Affidavit of Thomas King was read which verifieth the same Mr. Selden made the rest of this Report and delivered the Warrant by which Mr. Attorney drew the Pardons for the Bishop of Winchester The effect was that what Mr. Mountague had done or writ was not out of any ill meaning such a Pardon should be drawn as Mr. Mountagues Councel should direct This Warrant was under the Lord Dorchester being the Lord Carleton Mr. Selden delivereth likewise the Copie of the Pardon interlined and razed by the Lord Bishop of Winchester Sir Iohn Elliot HEre is high Treason upon oath a Deposition upon oath an opposition is not in Law to be admitted for here is not onely an Admission but an Invitation of Certificates for defence and allowed to sway the case of so high a nature that therefore the parties that made the Affidavits and Mr. Attorney may be examined to make a better disquisition in this for I fear the intimation of the Bishop of Winchester swayed too far with Mr. Attorney Be matter true or false the neglect of the dutie of the Attorney is not to be excused I am much grieved to see his Majesties mercie run so readily to these kind of persons and his justice so readily upon others trifling occasions nay upon no occasions nay upon no occasion onely the misinformation of some Minister Mr. Attorney being by Writ to attend the Lords House cannot be injoyned to attend this House or to appear upon Warrant wherefore Mr. Littleton and Mr. Selden being of the same Inne of Court have undertaken to give notice to Mr. Attorney that there being an accusation here against him he may here answer and satisfie the House on Munday next Saturday A Bill against Spirituall Symonie
by the Lord Keeper ibid. S r Iohn Elliot's speech Iune 3. ibid. A Report from the Committee for trade Iune 4. pag. 201 His Majesties message to the House of Commons by the Speaker Iune 6. pag. 203 The Kings Speeches Iune 7 and the Petition of Right read and granted pag. 204 The motions of the lower House to the Higher ibid. Sir Thomas Wentworths speech pag. 205 The Kings message to the lower House by Sir Humphry May Iune 10. pag. 206 Eight particulars voted in the House of commons against the Duke of Buckingham Iune 11 ibid. The first Remonstrance of the House of Commons ibid. A Schedule of the shipping of this Kingdome which have been taken by the Enemy and lost at sea within the space of three yeares last past pag. 215 The Kings Answer to the Remonstrance Iune 17. p. 217 The Kings speech at the end of the Session Iune 26. ibid. The second Remonstrance pag. 218 A Letter which was found amongst some Jesuits that were lately taken at London and addressed to the Father Rector at Bruxills pag. 220 Motives to induce the Knights Citizens and Burgesses of the Commons house of Parliament to petition his Majesty for the revoking and abolishing of the degrees of Baronets lately erected by his Highnesses letters pattents pag. 224 The examination of Andrew le Brun Captain of the Mary of Rochell pag. 226 Articles against Melvin p. 227 A privie Seal for the transporting of horses Ianuary 30 tertio Caroli ibid. The Commission to the Lords and others of the Privy Councell concerning the present raising of Money pag. 228 Articles to be propounded to the Captains and Masters as well English as French touching the service in hand at Rochell May 4. 1628. p. 230 The Answer to the Articles propounded by the Lord generall and the rest of the Councell of warre pag. 231. A TABLE of the transactions of the second Session of the Parliament begun Ian. 20. 1628. M r Selden's report concerning the Petition of Right Ianuary 21 pag. 235 M r Pymms motion ibid. Sir Iohn Elliots reply ibid. M r Seldens speech concerning the Petition of Right p. 236 M r Norton the Kings Printer brought to the barre ibid. Sir Iohn Elliot ibid. Sir Robert Phillip's speech Ianuary 22. ibid. M r Littleton pag. 237 Sir Iohn Elliot ibid. M r Selden concerning the printing of the Petition of Right ibid. His Majesties message Ian. 23 24. pag. 238 M r Walter Ian. 26 ibid. M r Secretary Coke ibid. Sir Francis Beamor ibid. M r Kirton ibid. M r Sherland pag. â—39 Sir Nath. Rich Ian. 27 ibid. The Kings Message by Secretary Coke ibid. Sir Walter Earl pag. 240 M r Corrington ibid. M r Pymme ibid. Another Message from his Majesty Ianuary 28 deliver'd by Secretary Coke ibid. M r Long 's Reply pag. 241 Sir Thomas Edmonds ibid. M r Corrington ibid. Sir Iohn Elliot ibid. Secretary Coke's speech Feb. 3 pag. 242 Sir Iohn Elliot ibid. M r Speaker pag. 243 Secretary Coke ibid. Sir Hum. May ibid. Sir Iohn Elliot at the Committee for Religion ibid. A Bill that no Clergy man be in Commission for Peace Feb. 4 ibid. M r Selden pag. 244 A Petition against D r. Cosens ibid. Sir Eubal Thelwall ibid. M r Shervile ibid. M r Rouse ibid. M r Kirton ibid. Sir Robert Phillips pag. 245 Sir Edward Giles ibid. Sir Iames Perot ibid. M r Pymme ibid. Sir Robert Phillips ibid A Petition about an imposition upon mault Febr. 5 p. 246 M r Long ibid. M r Ogle ibid. Secretary Coke ibid. Sir Robert Phillips ibid. A Petition against Whittington a Papist Febr. 6. ibid. M r Shervile pag. 247 S r Nath. Rich ibid. S r O. Roberts upon an Affidavit against D r Cosens ibid. S r Iohn Elliot ibid. M r Kirton Febr. 7. ibid. S r Walter Earl ibid. S r Robert Phillips ibid. M r Selden pag. 249 S r Robert Phillips ibid. M r Pymme ibid. M r Shervile ibid. S r Iohn Stanhope ibid. S r Nath. Rich ibid. S r Iohn Elliot ibid. S r Daniel Norton pag. 250 S r Robert Phillips ibid. The Chancellor of the Dutchy ibid. S r Thomas Heale ibid. M r Valentine ibid. Transactions concerning Cosens Bishop Mountague c. Febr. 9. ibid. S r Robert Phillips February 10 pag. 251 M r Chancellor of the Dutchy pag. 252 M r Selden ibid. S r Francis Seymour ibid. M r Selden pag. 253 M r Kirton ibid. M r Littleton ibid. S r Benjamin Ruddier ibid. M r Selden Febr. 11 ibid. A Petition of the booksellers and printers at the Committee for Religion pag. 254 M r Shervile's Report concerning D r Sibthorpe Cosens and Manwaring ibid. Sir Walter Earl pag. 255 A Committee for tonnage and poundage Febr. 12 Shervile in the Chair ibid. S r Iohn Elliot ibid. A Petition against Burges a Priest Febr. 13 pag. 257 S r Iohn Elliot ibid. Sir Will. Bawstrod at a Committee for Religion ibid. Sir Richard Gravenor pag. 258 Secretary Coke ibid. A Complaint against the Lord Lambert Febr 14 pag. 259 M r Kirton ibid. S r Thomas Hobbie at a Committee for Religion pag. 260 M r Stroud at a Committee for Religion Febr. 16 p. 261 Another petition preferred by M r Chambers Febr. 17. p. 262 A publick Fast Febr. 18 p. 263 M r Dawes call'd in question for taking M r Rolls his goods Febr. 19 ibid. A petition of Complaint against the Lord deputy of Ireland Febr. 20 ibid. A petition by M r Symons in complaint of the Customers Febr. 21 pag. 264 The Committee for Merchants ibid. The protestation of the Commons in Parliament March 2 1628 Pag. 267 The Kings speech in the House of Parliament March 10. to dissolve it Pag. 268 His Majesties letter and queres concerning ship money and the answer thereunto The KINGS Speech 17. March 1627. My Lords and Gentlemen THese Times are for action wherefore for examples sake I meane not to spend much time in words expecting accordingly that your as I hope good resolutions will be speedy not spending time unnecessarily or that I may better say dangerously for tedious Consultations at this conjuncture of time are as hurtfull as ill Resolutions I am sure you now expect from me both to know the cause of your meeting and what to resolve on yet I think there is none here but knowes that common Danger is the cause of this Parliament and that Supply at this time is the chief end of it so that I need but point to you what to do I will use but few perswasions for if to maintaine your owne advises and as now the case stands by the following thereof the true Religion Lawes and Liberties of this State and the just defence of our true Friends and Allies be not sufficient then no eloquence of Men or Angels will prevaile Only let me remember you that my duty most of all and every one of yours according to his degree is to seek the maintenance of this Church and
Common-wealth and certainly there never was a time in which this duty was more necessarily required then now I therefore 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
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
Assembly so that you are secure not onely from wilfull and pregnant errours but from doubt of sinister interpretation My Lord the King is as an Angel of God of a quick of a noble and just apprehension he straines not at gnats he will easily distinguish between a vapour and a fogg between a mist of â—rrour and a cloud of evill right he knowes if the heart be right Out of the abundance of the heart the mouth speakes You proceed to a survey of the lustre of this great and glorious Assemblie and in that as in a curious Crystall you observe the true happinesse which we all here enjoy You have distributed and divided aright and whosoever sees it otherwise hath an evill eye or a false glasse We have enjoyed it long through the happy meanes of gracious and good Princes and the way to enjoy it still is to know and heartily to acknowledge it and that God hath not done so to any other Nation It is a prime cause or meanes of this our happinesse You mention the forme of Government under which we live a Monarchie and the best of Monarchies where Sovereignty is hereditarie no Inter-Regnum nor competition for a Crown Descent and Succession are all one The Spirit of God by the mouth of the wisest of Kings long since proclaimed this happinesse Blessed art thou O Land where thy King is the son of Nobles The frames of other States are subject some to inconstant Levitie some to Faction some to Emulation and Ambition and all to manifold Distempers in which the People go to wrack The Monarchie is most naturall and in it Unity is the best cement of all government principally in respect of the unity of the Head which commands the rest And therefore other States when they have tryed a while doe for the most part resolve into this as into the best for Peace for Strength and for Continuance But formes of other governments though never so exact move not of themselves but are moved of their governours And therefore our Monarchie as you have truly said this glorious Assemblie the lively image and representation of our Monarchie is made happy and perfect by the Royall Presence that sits here in his highest Royal Throne the Throne of the Law-giver glorious in it selfe glorious by those happy Lawes and Oracles which have issued from it and most glorious by them that sit on it his Majestie and his Royall Progenitours incomparable Kings that with so much honour have swayed the Sceptre of this Kingdome so many successions of Ages In the next place after the Throne of Majestie you look into the Chaire of Doctrine the reverend Prelates and upon the state of Religion their proper charge This is the blessing of all blessings the priviledge and assurance that secures us of all the rest that as our Religion is most sincere and orthodoxe so our Clergie is eminent both for purity of Doctrine and integritie of Life our Priests are clothed with righteousnesse and their lips preserve knowledge and therefore God's Saints may and doe sing with joyfulnesse I must joyn with you in attributing this transcendent blessing to us as in the first place to God's goodnesse so in the second to his Majestie 's piety who following the steps of his ever-blessed Father is carefull that all the Lamps of the Church may be furnished with Oyle and especially those which are set on golden Candle-sticks with the purest and best oyle The Schools also and nurceries of Learning never so replenished especially with Divinity as in this last Age as they all shew his Majestie 's Piety so are they infallible Arguments of his Constancy The triall which you call the fierie triall undergone by his Majestie in the place of danger and again the power and policie of Rome and Spaine hath approved his resolution inimitable and his own remarkable example in his closet and his chamber his strict over-sight of and command to his Houshold servants and his charge to his Bishops and Judges his Edicts his Proclamations and Commissions and the like for the execution of the Lawes and his general care to preserve the fountain pure both from Schisme and Superstition are faire fruits and effects of a pious and zealous resolution From the chaire of Doctrine you turn to the state of Honour unto the Nobles and Barons of England These are Robur belli who for the service of the King and Kingdome are to make good with their Swords what the Church-men must hallow and blesse by their Prayers And therefore as the Prelates are the great Lights of the Church so the Nobility are the Starres of the State and you know that the starres have fought and fought powerfully against the enemies of God From the state of Honour you come to the state of Justice and to the twelve Lyons under Solomon's Throne the Iudges and Sages of the Law and as their peculiar charge intrusted to them by our Sovereigne the Lawes of the Kingdome Lawes undoubtedly fitted to the constitution of this people for Leges Angliae and Consuetudines Angliae are Synonyma and Confuetudo est alter a natura so as besides the justnesse and rightnesse of the Lawes they are become naturall to our people and that is one of the powerfullest meanes which begetteth obedience and such Lawes in the mouthes of learned and upright Judges are like waters in a pure chanel which the fairer it runs the clearer they run and produce that whereof Solomon speaks Prov. 29. 2. When the righteous are in authority the People rejoyce From the Law you passe to the Knights Citizens and Burgesses and the third Estate who represent the Commons of England in whom the Scripture is verified In the multitude of People is the Kings honour and therefore you may be sure that distance of place and order breeds no distance in affection for wise Kings everlay their honour next to their hearts Kings are Pastores populi and the Shepherds care is nothing lesse to the furthest then to the next part of his Flock and it is asmuch towards the least of his Lambs as towards the greatest Cattel And as in the Natural bodie no member is so remote but it is still within the care of the head so in this great Politick bodie of the Kingdome no ranck or order of People so low is at such distance from the Throne but it dayly feeles the influence and benefit of the Kings care and protection And to say the truth in a well-governed Kingdome the superiour rancks of Nobles of Judges and of Magistrates are not ordained for themselves but as conduits for the Kings justice protection and goodnesse to the lower rancks of his People And as the People are so its just cause they should be constant to the Poles of Love and Loyalty And thus having perused both Houses by divided parts joyn them together and in that juncture you believe truly and materially that the greatest denyal of their joynt requests is The King
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
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
God declared against our selves in the manifold Evils already fallen upon us and in those which are further threatned as by your sacred Majesty was intimated to us even to the utter destruction and subversion of this Church and State all which our sins have justly deserved and being now by your Majestie 's gracious favour assembled in Parliament as the great Councel of this your Kingdome to consult on such means as we conceive fittest to redresse the present and prevent the future Evils wherein through Gods blessing we intend to imploy our utmost endeavours with as good hearts to your Majestie and the publick service as ever people did do in the first place humbly beseech your Majesty that by your speciall command one or more daies may be forthwith solemnly set apart wherein both our selves and this your Kingdome may by Fasting and Prayer seek a Reconciliation at the hands of almighty God and with humble and penitent hearts beseech him to remove those miseries that lie upon us and our neighbour Churches to avert those which are threatned to continue the favours which we yet enjoy and particularly to bestow his abundant blessing upon your Majesty and this present Parliament so that all our counsels and consultations being blessed with his divine assistance may produce much honour safety and happinesse to your Majesty your People and Allyes The Kings Propositions March 28. 1628. 1. TO furnish man and victuall 30. ships to guard the Narrow seas and along the Coasts 2. To set out 10. other ships for the preservation of the Elve and the Baltick sea 3. To set out 10. other ships for the relief of the Town of Rochel 4. To leavy arme cloth victuall pay and transport an army of 1000. horse and 10000. foot for forrain service 5. To pay and supply 6000. men for the assistance of the King of Denmark 6. To supply the stores of the Office of the Ordinance 7. To supply the stores of the Navy 8. To build 20. ships yearly for the increase of the Navy 9. To repair the Forts within the Land 10. To pay the Arriers of the Office of the Ordinance 11. To pay the Arriers of the Victuallers Office 12. To pay the Arriers of the Treasurer of the Navy 13. To pay the Arriers due for the fraight of divers Merchants ships imployed in his Majestie 's service 14. To provide a Magazine of Victualls for Land and Sea-service Three grand Questions 1. NO Free-man ought to be committed or detained in prison or otherwise restrained by the command of the King of the Privy Councel or any else unlesse some cause of the commitment detainment or restraint be expressed for which by law he ought to be committed detained or restrained 2. A Writ of habeas corpus may not be denyed but ought to be granted to every man that is committed or detained in prison or otherwise restrained though it be by the command of the King Privy Councel or any other he praying the same 3. If a Free-man be committed or detained in prison or otherwise restrained by the command of the King Privy Councel or any other unlesse the cause of the commitment detainment or restraint be expressed for which by Law he ought to be committed detained or restrained and the same be returned upon habeas corpus granted for the said party that then he ought to be delivered or bailed Sir John Coke his Speech at a Conference between the Lords and Commons about the Petition to the King against Recusants My Lords WE are sent to attend this Conference from the Knights Citizens and Burgesses of the House of Commons And first we acknowledge all due honour both unto the reverend Fathers of the Church and to you noble Lords in that ye have shined before us as worthy lights in the encouragement and maintainance of true Religion It is the true support of all your dignities and honours And this forwardnesse of yours is the more remarkable when that viperous generation as your Lordships justly stile them doe at â—ase with tooth and nail assay to rend the bowels of their Mother For give me leave to tell you what I know that they now both vaunt at home and write to their friends abroad they hope all will be well and doubt not to prevail and to win ground upon us And a little to awake the zeal and care of our learned and grave Fathers it is fit that they take notice of that Hierarchie which is already established in competition with their Lordships for they have a Bishop consecrated by the Pope this Bishop hath his subalternate Officers of all kinds as Vicars-generall Arch-deacons rurall Deans Apparatours and such like Neither are those nominall or titular Officers alone but they all execute their Jurisdictions and make their ordinary Visitations through the Kingdome keep Courts and determinâ— Ecclesiasticall causes and which is an argument of more consequence they keep ordinary intelligence by their Agents in Rome and hold correspondence with the Nuntioes and Cardinalls both at Bruxells and in France Neither are the Seculars alone grown to this height but the Regulars are more active and dangerous and have taken deep root they have already planted their Societies and Colledges of both Sexes they have setled Revenues Houses Libraries Vestments and all other necessary provisions to travell or stay at home nay even at this time they intend to hold a concurrent Assembly with this Parliament But now since his sacred Majesty hath extended his royall arm and since the Lords of his Councell have by their authority caused this nest of Wasps to be digged out of the earth and their Convocations to be scattered and since your Lordships joyn in courage and resolution at least to reduce this People to their lawfull restraint that they may doe no more hurt we conceive great hope and comfort that the almighty God will from henceforth prosper our endeavours both at home and abroad But now my Lords to come to the chief errand of this our meeting which is to make known to you the approbation of our House of that Petition to his Majesty wherein you were pleased to request our concurrence The House hath taken it into serious consideration and from the beginning to the end approve of every word and much commend your happy pen onely we are required to present unto you a few additions whereby we conceive the Petition may be made more agreable to the Statutes which are desired to be put in execution and to a former Petition granted by his Majesty recorded in both Houses confirmed under the Broad Seal of England and published in all the Courts of our ordinary Justice But these things we propound not as our Resolutions or as matters to raise debate or dispute but commend them only as our Advise and desire being ready notwithstanding to joyn with your Lordships in the Petition as now it is if your Lordships shall not find this reason to be of weight These additions were
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
joy to see this day Sir John Elliot in answer to M r Secretary Cokes Message of Thanks from the King and the Duke of Buckingham delivered in the Commons House of Parliament 5. April 1628. M r. Speaker I Presume we have all received great satisfaction from his Majestie as at other times so now in his gracious answer and resolution for the businesse of this House his answer to our Petition for Religion so particularly made his resolution in that other consideration concerning the point already settled here in Declaration of our Liberties and for the Parliament in generall that he hath taken so good a liking to our manner of proceeding as it hath gained his promise therein to meet often where I am made confident as of his grace to us so of our Loyalties that to thus good a Beginning we should adde so happy a Conclusion as shall increase that liking and good opinion in his Majestie and from henceforth make him more and more in love with Parliaments As thus in generall so in my particular I receive excellent satisfaction herein so as I have not words enough sufficiently to utter it And yet I confesse that extremity of joy is not without trouble which must likewise be declared to disburden this affection which cannot otherwise so lively and so faithfully expresse me in the service of the House as I have resolved I know not what â—atality or infortunity crept in but I observe in the close of that Relation no mention of any other in addition to his Majesty and that which formerly hath been a matter of complaint here I find it still the mixture with his Majestie not only in his businesse but in name Is it that any man conceives the mention of others of what quality soever can adde encouragement or affection to us in our Duties and Loialties towards his Majestie or give them greater latitude or extent then naturally they have Or is it supposed that the power or interest of any man can adde more readinesse to his Majesty in his gracious inclination to us then his own goodnesse gives him I cannot believe it And as the Sweetnesse and Pietie of his Majesty which we have in admiration makes me confident in this so the expression of our Dutie so perspicuous and cleer as already hath been given is my assurance for the other But Sir I am sorry there is this occasion that these things should be argued or this mixture which was so meerlie condemned should appear again I beseech you Sir let it not be hereafter let no man take this boldnesse within these walls to introduce it though I confesse for my particular I shall readily commend nay thank that man whose endeavours are applyed to such offices as may be advantageable for the publick yet in this manner so contrarie to the customes of our Fathers and the honour of our Times as I cannot without Scandall apprehend it I cannot without some Character or exception passe it And therefore I desire that such interposition may be left and that all other **** respects and goodnesses of his Majesty in the confidence of our own loyaltie and affections Now let us proceed to those services that concern him which I doubt not in the end will render us so reall unto him that we shall not need more help to endear us to his favour A Message by Secretary Coke from the King to the Lower House April 7. 1628. HIs Majesty hath again commanded me to put you in mind how the eyes and interest of the Christian World are cast upon the good or ill successe of this Assemblie He also graciously taketh notice of that which is in agitation amongst us touching the freedome of our Persons and propriety of our Goods And that this particular care which he in no way misliketh may not retract our resolution for the generall good he willeth us cheerfully to proceed in both and to expresse our readinesse to supply his great Occasions upon assurance that we shall enjoy all our Rights and Liâ—â—rties with as much freedome and security in his time as in any age heretofore under the best of our Kings And whether you shall think fit to secure our selves herein by way of Bill or otherwise so as it be provided for with due respect to his Honour and the publick good whereof he doubteth not but you will be carefull he promiseth and assureth you that he will give way unto it and the more confidence you shall shew to his Grace and Goodnesse the more you shall prevaile to obtain your desires Sir Benjamin Ruddier's Speech upon the receipt of his Majestie 's Answer to the Petition against Recusants M r Speaker THe best thanks we can return his Majesty for his gracious and religious answer he hath given to our Petition is to move towards that which will both please him and secure our selves The dangers and necessities of the present state M r Speaker are so obvious to every mans eye and understanding and therefore so well known as to make a large and particular rehearsall of them would rather astonish our judgements then refresh our memorie Wherefore in short and in grosse I will but only reflect upon the desperate condition of the Kings Uncle the King of Denmarke engaged from hence even to the hazzard of his own Kingdome in the quarrell of that royall and victorious Lady his Majesties Sister for the recovery of her and her childrens patrimony the preservation and reestablishment of the Religion in those Countreys so that the King is bound in nature in policie and in religion to relieve and assist both the persons and the cause to the utmost of his power Believe it M r Speaker the hindge of the many businesses mov'd in Germany doth not a little presse us to look about us at this time for if that great bodie were once united under one head it would crush all the rest with the weight of it Next let us a little look over into France there shall we find the poor men of our Religion exposed to the furie of an enraged King with a juster pretence against them then hath been at any time heretofore besides which is worse the Kings of Spain and France are united against them and us and made better friends then ever they meant to have been So that not to succour and support the Professours of our Religion will not only be infidelity and cruelty but improvidence and folly for their ill is ours If Rochel should be lost which is now in loosing and his Majesty not able to set out one ship to help it if it should be lost it would hazzard the totall extirpation of the Religion besides it would be an extraordinarie advantage to the King of France for shipping and as great a disadvantage to us in respect of the neighbourhood and if the Sound should be lost too whereby should we escape from being swallowed up by a Spanish invasion this Island would be more like to
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
grand Councell and that they there find suretie to pursue their suggestions and incurre the same paine that the other should have had if he were attainted in case that their suggestions be found evil and that then processe of the Law be made against them without being taken and imprisoned against the forme of the said Charter and other Statutes Here the Law of the Land in the grand Charter is explained to be without processe of the Law 42. E. 3. ca. 3. At the request of the Commons by their Petitions put forth in this Parliament to eschew mischiefs and damage done to divers of his Commons by false accusers which oftentimes have made their accusation more for revenge and singular benefit then for the profit of the King or of his people which accused persons some have been taken and sometimes caused to come before the Kings Councell by writ and otherwise upoâ— grievous paine against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices or matter of Record or by due processe or writ originall according to the old Law of the Land And if any thing henceforth be done to the contrary it shall be void in Law and holden for errour But this is better in the Parliament Roll where the Petition and Answer which make the Act are set down at large 42. E. 3. Rot. Parliament num 12. The Petition Because that many of the Commons are hurt and destroyed by false accusers who make their accusations more for their revenge and particular gaine then for the profit of the King or his people and those that are accused by them some have been taken and others have been made to come before the Kings Councell by writ or other Commandment of the King upon grievous paines contrary to the Law That it would please our Lord the King and his good Councell for the just government of his people to ordain that if hereafter any accuser propose any matter for the profit of the King that the same matter be sent to the Justices of the one Bench or the other or the affaires to be enquired and determined according to the Law And if it concern the accuser or partie that he take his suit at the Common Law and that no man be put to answer without presentment before Justices or matter of Record and by due processe originall writ according to the ancient Law of the Land And if any thing henceforward be done to the contrarie that it be void in Law and held for errour Here by due processe and originall writ according to the Law of the Land is meant the same thing as per legem terrae in Magna Charta and the abuse was they were put to answer by the commandment of the King The Kings Answer is thus Because that this article is an article of the Grand Charter the King wills that this be done as the Petition doth demand By this it appeareth that per legem terrae in Magna Charta is meant by due processe of the Law Thus your Lordships have heard Acts of Parliament in the point But the Statute of Westm. the 1. ca. 15. is urged to disprove this opinion where it is expresly said That a man is not replevisable who is committed by the command of the King without any cause shewn which is therefore sufficient to commit a man to prison And because the strength of the Argument may appeares and the answer be better understood I shall read the words of the Statute which is thus And for as much as Sheriffs and others have taken and kept in prison such as were replevisable and have let out by plevin such as were not replevisable because they would gaine of the one partie and grieve the other And forasmuch as before this time it was not certainly determined what persons were replevisable and what not but only those that were taken for the death of a man or by Commandment of the King or of his Justices or for the Forrest It is provided and by the King commanded that such prisoners as were before outlawed and they which have abjured the Realme Provors and such as be taken with the manner and those which have broken the Kings prison Thieves openly defamed and known and such as be appealed by Provors so long as the Provor be living if they be not of good name and such as be taken for burning of houses felloniously done or for false money or for counterfeiting the Kings Seal or persons excommunicated taken at the request of the Bishops or for manifest offences or for Treason touching the King himself shall be in no case replevisable by the common writ or without writ But such as be indicted of larceny by inquests taken before Sheriffs or Bailiffs by their office or for light suspicion or for petty-larceny that amounteth not to above the value of 12 pence if they were not guilty of some other larceny aforetime or guilty of receipt of fellons or of commandment or force or of aid in felony done or guilty of some other trespasse for which one ought not to loose life or member and a man appealed by a Provor after the death of a Provor if he be no common thief or defamed shall from henceforth be let out by sufficient suretie whereof the Sheriff will be answerable and that without giving ought of their goods And if the Sheriff or any other let any go at large by suretie that is not replevisable if he be Sheriff or Constable or any Bailiffe of fee which hath keeping of prisoners and thereof be attainted he shall loose his â—ee and office for ever And if the under-Sheriff Constable or Bailiffe of such as have fee for keeping of prisons do it contrarie to the will of his Lord or any other Bailiffe being not of fee they shall have three yeares imprisonment and make Fine at the Kings pleasure And if any hold prisoners replevisable after they have offered sufficient sureties he shall pay a grievous amercement to the King And if he take any reward for the deliverance of such he shall pay double to the prisoner and also shall pay a grievous amercement to the King The Answer It must be acknowledged that a man taken by the Commandment of the King is not replevisable for so are the expresse words of this Statute But this maketh nothing against the Declaration of the House of Commons for they say not that the Sheriff may replevy such a man by sureties scilicet Manucaptores but that he is bailable by the Kings Court of Justice For the better understanding whereof it is to be known that there is a difference betwixt replevisable which is alwayes by the Sheriff upon on pledges or sureties given and bailable which is by Court of Record where the prisoner is delivered to his Baile and they are his Gaolers and may imprison him and shall suffer for him bodie
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
what the cause is then in any other The fourth of these is in the time of Queen Mary It is Pasche 2. and 3. Phil. and Mar. Rot. 58. Overtons case Richard Overton was returned upon a habeas Corpus directed to the Sheriffs of London to have been committed to them and detained per mandatum prenobilium virâ—râ—m honorabilis Concilii Dominorum Regis Regina Qui committitur Marescallo c. immediate traditur in ballium In answer to this President or by way of objection against the force of it hath been said that this Overton stood at that time indicted of Treason It is true he was so indeed but that appeares in another Roll that hath no reference to the Return as the Return hath no reference to that Roll. Yet they that object this against the force of this President say That because he was indicted of Treason therefore though he was committed by the command of the Lords of the Councell without cause shewed yet he was bailable for the Treason and upon that was here bailed Then which Objection nothing can be or is more contrarie to Law or common Reason It is most contrarie to Law for that cleerly every Return is to be adjudged by the Court out of the body of the Writ it self not by any other collaterall or forrain Record whatsoever Therefore the matter of Indictment here cannot in Law be cause of the bailing of the Prisoner And it is so adverse to all common Reason that if the objection be admitted it must of necessity follow that whosoever shall be committed by the King or the Privie Councell without cause shewed and be not indicted of Treason or some other offence may not be inlarged by reason of the supposition of matter of State But that whosoever is so committed and withall stands so indicted though in another Record may be inlarged whatsoever the matter of State be for which he was committed The absurdity of which assertion needs not a word for further confutation as if any of the Gent. in the last Judgement ought to have been the sooner delivered if he had been also indicted of Treason Certainly if so Traitours and Fellons had the highest priviledges of personall Liberty and that above all other Subjects of the Kingdome The first of this first kind is of Queen Marie's time also It is Pasche 4. 5. P. M. Rot. 45. the Case of Edward Newport He was brought into the Kings Bench by habeas Corpus out of the Tower of London cum causa viz. Quod commissus fuit per mandatum Conciliorum Dominae Reginae Qui committitur Marr. c. et immediate traditur in ballium To this the like kind of answer hath been made as in that other Case of Overton next before cited They say that in another Roll of another Terme of the same year it appears he was in question for suspicion of Coyning And it is true he was so But the Return and this Commitment mentioned in it have no reference to any such offence nor hath the Bailment of him relation to any thing but to the absolute Commitment by the Privie Councell So that the answer to the like objection made against Overton's Case satisfies this also The sixth of these is of Q. Elizabeth's dayes It is Mich. 9. Eliz Rot. 35. the Case of Thomas Lawrence This Lawrence came in by habeas Corpus returned by the Sheriffs of London to be detained in prison per mandatum Concilii Dominae Reginae Qui committitur Marescallo c. super hoc traditur in ballium An Objection hath been invented against this also It hath been said that this man was pardoned and indeed it appeares so in the margent of the Roll where the word pardonatur is entred But cleerly his enlargement by Baile was upon the Bodie of the Return only unto which that Note of Pardon in the Margent of the Roll hath no relation at all And can any man think that a man pardoned for what offence soever it be might not as well be committed for some Arcanum or matter of State as one that is pardoned The seventh of these is in the same yeare and of Easter Terme following It is Pasche 9. Eliz. Rot. 68. Robert Constable's Case He was brought by habeas Corpus out of the Tower and in the Return it appeared he was committed per mandatum privati Concilii dict Dominae Reginae Qui committitur Marr. postea isto eodem Termino traditur in ballium The like Objection hath been made to this as to that before of Lawrence but the self same Answer cleerly satisfies for both of them The eighth is of the same Queens time in Pasche 20. Eliz. Rot. 72. Iohn Browning's Case This Browning came by habeas Corpus out of the Tower whether he had been committed was returned to have been committed per privatum Concilium Dominae Reginae Qui committitur Maresc Et postea isto eodem Termino traditur in ballium To this it hath been said That it was done at the chief Justice Wraye's Chamber and not in Court and thus the authoritie of the President hath been lessened and sleighted If it had been at his Chamber it would have proved at least thus much That S r Christopher Wraye then chief Justice of the King's Bench being a grave learned and upright Judge knowing the Law to be so did baile this Browning and so enlarge him And even so farre were the President of value enough But it is plain that though the habeas Corpus were returnable indeed as it appeares in the Record it self at his Chamber in Serjeant's Inne yet he only committed him to the Kings Bench presently and referred the consideration of enlarging him to the Court who afterwards did it For the Record saith Et postea isto eodem Termino traditur in ballium which cannot be intended of an enlargement at the chief Justice his Chamber The ninth of this first kind is in Hill 40. Eliz. Rot. 62. Edward Harecourts Case He was imprisoned in the Gate-house and that per Dominos de private Concilio Dominae Reginae pro certis causis eos moventibus et ei ignotis and upon his habeas Corpus was returned to be therefore only detained Qui committitur Marr. c. Et postea isto eodem Termino traditur in ballium To this never any colour of answer hath been yet offered The tenth is Catesbies Case in the Vacation after Hillary Terme 43. E. Rot. 37. Robert Castesby was committed to the Fleet per warrant diversorum prenobilium virorum de private Concilio Dominae Reginae He was brought before Justice Fennor one of the Judges of the Kings Bench by habeas Corpus at Winchester House in Southwark commissus fuit Marr. per praesat Edw. Fennor statim traditur in ballium The eleventh is Richard Beckwith's Case which was in Hillary 12. of King Iames R. 153. He was returned upon his habeas Corpus to have
c eis direct coram Rege duct cum causa viz. Quod idem Edwardus captus detentus fuit in prisona Marr. praedict per mandatum Domini Regis ibid. salvo custodiend c. Qui committitur Marr Marr. hospitii Domini Regis De Termino sancti Michaelis anno 8 Iacobi Regis per Scr. ejusdem rot 99. Thomas Cesar per Thomam Vavasor mil. Marr. Marresc hospitii Domini Regis ac Marr Marresc hospitii virtute brevis Domini Regis de habeas Corpus ad subjiciendum ei direct coram Domino Rege apud Westm. duct cum causa viz. Quod ante adventum brevis praedict scilicet decimo octavo die Julii anno Regni dict Domini Regis nunc Angliae c. septimo Tho. Cesar in breve praed nominatus captus fuit apud Whitehall in comitatu Midd. per speciale mandatum Domini Regis per eundem Dominum Regem ad tunc ibidem salvo custodiend quousque c. Et ea fuit causa captionis detentionis ejusdem Thom Cesar. Remitt Qui remittitur prison praedict De Termino sancti Michaelis anno 8 Iacobi Regis die Martis proxime post quindena Martini Nisi praedict Senescall Marr. hospitii Dom. Regis sufficienter return breve de habeas Corpus Thom. Cesar die Martis proxime post quindena Martini defend exonerabitur per curiam De Termino sancti Hillarii anno Regni Iacobi Regis 12. rot 153. Iacobus Demetrius Edwardus Emerson Georgius Brookshaw Will. Stephens per Thomam Vavasor mil. Marr. Maresc hospitii Domini Regis virtute brevis de habeas Corpus ad subjiciendum recipiendum c. ei inde direct coram Domino Rege apud VVestmonast duct cum causa viz. Quod ante adventum brevis praedict scilicet 22. die Januarii anno Regni Domini nostri Iacobi Dei gratia Angliae Franciae Hiberniae c. 12 Scotiae 48. praedictus Iacobus Demetrius Edwardus Emerson Georgius Brookshaw Willielmus Stephens in breve huic Schedul annex nominati fuerunt Commiss Gaol Marresc hospitii Domini Regis pro causis ipsum Regem servitium suum tangentibus concernentibus Et haec est causa captionis praedict Iac. Emerson Georg. Remittitur Will. postea immediate remittitur praefat Marr. hospitii praedict De Termino sancti Hillarii anno 12 Iacobi Regis Samuel Saltonstall per Iohannem Wilkenson Ar. Gardian prison de le Fleet virtute brevis Domini Regis de habeas Corpus ad subjiciendum c. ei inde direct coram Domino Rege apud Westm. duct cum causa viz. Quod idem Samuel commissus fuit prisonae praedict virtute warranti à Dominis de Privato Concilio Domini Regis undecimo die Martii 16â—8 quod detentus fuit etiam idem Samuel in prisona praedict virtute cujusdam ordinis in curia Canc. Domini Regis fact cujus ordinis tenor patet per rot record istius Termini Ad quem diem praedict Samuel remittitur prisonae praedict et secund dies proxim post Termdat est praefat-gardiano prisonae praedict ad emend return suum sufficient super breve praedict de habeas Corpus return quod praedict Samuel commissus fuit prisonae praedict undecimo die Martii 1608. per warrant a Dominis de Privato Concilio dict Domini Regis apud Whitehall tunc seden Et quod postea undecimo die Februarii anno 1610. commissus fuit extra cur Concil Domini Regis apud Westm. pro contemptu suo quod tent fuit etiam idem Sam. in prisona praedict per mandatum Dom. Concilii iterum remittitur prisonae praedict ulterius dies daâ— est praefat Gardian ad emend return suum super habeas Corpas versus defend prout stare voluer usque diem Jovis proxim post mensem Pasche tunc ad habendum corpus c. Ad quem diem praefat Gardian habuit corpus hic in curia return super habeas Corpus quod praedict Samuel commissus fuit prisonae praedict 11 Martii anno 1608. virtute cujusdam warranti a Dominis de privato Concilio Domini Regis tunc seden apud Whitehall Et quod etiam commissus fuit idem Samuel prisonae praedict 11 die Februarii anno 8 Iacobi Regis per cur Canc. dict Domini Regis apud Westm. tunc existen pro quodam contemptu per eundem Samuel in cur praedict illat perpetrat ibidem proinde salvo custodiend Remittitur Qui remittitur prisonae praedict De Termino sanctae Trinitatis anno 8 Iacobi Regis per scr ejusdem rot 71. Samuel Saltonstal mil. per Iohannem Wilkinson Ar. Gardian prison de le Fleet virtute brevis Domini Regis de habeas Corpus ad subjiciendum recipiendum c. ei inde direct coram Domino Regâ—apud Westm. duct cum causa viz. Quod praedictus Samuel Saltonstall commissus fuit prisonae praedict 11 die Martii anno Domini 1608. anno Regni Domini Iacobi Regis Angliae 6. virtute cujusdam warr a Dominis de Privato Concilio dict Domini Regis tunc seden apud Whitehall commissus fuit etiam idem Samuel Saltonstall mil. prisonae praedict 12. die Februarii anno 1610. anno Regni Domini Iac. nunc Regis Angliae c. 8 per considerationem cur Canc. dict Domini Regis apud VVestm pro contemptu eidem Cur. ad tunc per praedict Samuel illat ibidem prout inde salvo custodiend Et haec sunt causae captionis detentionis praedict cujusdam tamen Corpus ad diem Remittitur locum infra content parat habeo prout mihi praecipitur S r Edward Coke REsolved upon question that no Free-man ought to be committed or detained in prison or otherwise restrained by the command of the King or the Privie Councell or any other unlesse some cause of the commitment detainer or restraint be expressed for which by Law he ought to be committed detained or restrained That the Writ of Habeas Corpus may not be denyed but ought to be granted to every Free-man that is committed or detained in prison or otherwise restrained though it be by Command of the King the Privie Counsel or any other he praying the same That if a Free-man be committed or detained in prison or otherwise restrained by the Command of the King or the Privy Counsel or any other no cause of such commitment detainer or restraint being expressed for which by Law he ought to be committed detained or restrained and the same returned upon a Habeas Corpus granted for the same partie that then he ought to be delivered or bailed All this without one negative That these Acts of Parliament and these judiciall Presidents in affirmance thereof recited by Colleagues are but declarations of the fundamentall Lawes of this Realm I shall prove by manifest reasons legall reasons which are the grounds and Mothers of
Parker detentus est sub custodia mea per mandatum Domini Regis mihi nunciatum per Robertum Pecke now our case is by the Nunciation of many but in Law majus minus non variant in spetione the certification of one and of many is of the same effect although in morall understanding there may be a difference Trin. 2. Ed. 3. Rot. 46. in this Court in 21 Ed. 3. in the printed Book there is a piece of it The Abbot of Burey brings a prohibition out of this Court the Bishop of Norwich pleadeth in Barre of that Quod mihi testificatū quod continetur in Archivis that he is excommunicated there were two exceptions taken to this case in this president and they are both in one case the first was that no case appeareth why he was excommunicated there may be causes why he should be excommunicated and then he should be barred and there may be causes why the excommunication should not barre him for it may be the excomunication was for bringing the action which was the Kings writ and therefore because there was no cause of the excommunication returned it was ruled that it was not good The other reason is that upon the Roll which is mihi testificatum Now every man when he will make a certificate to the Court Proprium factum suum non alterius significare debet he must inform the Court of the immediate act done and not that such things are told him or that such things are signified unto him but that was not done in this case and therefore it was held insufficient and so in this case of ours I conceive the return is insufficient in the form there is another cause my Lord for which I conceive this return is not good But first I will be bold to inform your Lordship touching the Statute of Magna Charta 29. Nullus liber homo capiatur vel imprisonetur c. ne◠super eum mittimus nisi per legale judicium parium suorum vel per legem terrae That in this Statute these words in Carcerem are omitted out of the printed Books for it should be nec eum in Carcerem mittimus For these words per legem terrae what Lex terrae should be I will not take upon me to expound otherwise then I finde them to be expounded by Acts of Parliament and this is that they are understood to be the processe of the Law sometimes by writ sometimes by attachment of the person but whether speciale mandatum Domini Regis be intended by that or no I leave it to your Lordships exposition upon two petitions of the Commons and answer of the King in 36 Ed. 3. n o 9. and n o 20. In the first of them the Commons complain that the great Charter the Charter of the Forrest and other Statutes were broken and they desire that for the good of himself and of his people they might be kept and put in execution and that they might not be infringed by making an arrest by speciall command or otherwise and the answer was that the assent of the Lords established and ordained that the said Charter and other Statutes should be put in execution according to the petitition and that is without any disturbance by arrest by speciall command or otherwise for it was granted as it was petitioned In the same year for they were very carefull of this matter and it was necessary it should be so for it was then an usuall thing to take men by writs quibusdam de causis and many of these words caused many Acts of Parliament and it may be some of these writs may be shewn and I say in the same year they complained that men were imprisoned by speciall command and without indictment or other legall course of Law and they desired that thing may not be done upon men by speciall command against the great Charter The King makes answer that he is well pleased therewith that was the first answer and for the future he hath added farther if any man be grieved let him complain and right shall be done unto him This my Lord is an explanation of the great Charter as also the Statute of 37 Ed. 3. ch 18. is a commentary upon it that men should not be committed upon suggestion made to the King without due proofs of Law against them and so it is enacted twice in one year We find more printed Books as in Henry the sixth Minus de fiacts Fitz. 182. which is a strong case under favour in an action of Trespasse for cutting down trees the defendant saith that the place where the trees are cut is parcell of the Manor of B whereof the King is seised in fee and that the King did command him to cut them and the opinion of the Court was that this was no good plea without shewing the specialty of the command and they said if the King command me to arrest a man and I arrest him he shall have an action of false imprisonment against me although it were done in the Kings presence In 1 Ioh. cap. 7. fol. 46. it is in print and there we leave it Hussey Chief Justice saith that Sir Iohn Markham told King Edward the fourth that he could not arrest a man upon suspition of felony or treason as any of his Subjects might because if he should wrong a man by such arrest the parties could have no remedy against him if any man shall stand upon it here is a signification of the Kings pleasure not to have the cause of the commitment examined he hath here another signification of his pleasure by writ whereby the party is brought hither ad subjiciendum recipiendum that he hath made your Lordship Judge of that that should be objected against this Gentleman and either to punish him or to deliver him and if here be no cause shewn it is to be intended that the party is to be delivered and that it is the Kings pleasure it should be so and the writ is a sufficient warrant for the doing of it there being no cause shewn of the imprisonment and now my Lord I will speak a word to the writ of de homine replegiando and no other writ for that was the common writ and the four causes expressed in that Statue to wit the death of a man the command of the King or his Justices or Forrest were excepted in that writ before that Statute made as appears Bracton 133. so that the writ was at the Common Law before that Statute And it appears by our Books that if a man be brought hither by an Habeas corpus though he were imprisoned De morte hominis as in the 21 of Edward the fourth 7. Winkfield was bailed here this Court bailed him for he was brought hither ad subjiciendum recipiendum and not to lie in prison God knows how long and if the Statute should be expounded otherwise there were no bailing men outlawed or breakers of prisons
deliberari non debeat Rex Iusticiar suis de Banco salut Cum nos nuper ad significationem S. de Isle c. usque ibi excommunicat extitisse nec se velle c. esset satisfactum ex parte ipsius N. virtute mandati nostri praed capt in Prisona nostra de Newgate tunc detenti c. nolentes eo praetextu praefato N. per breve nostrum praed via praecludat quo minus appellac suae negotium c. processerat appellant statut c. per breve nostrum praeceperimus praefat vic quod scire facerent c. signific consult circumspect in Placitis per breve praedict coram vobis pendentibus procedere valeatis secundum legem consuetudinem Regni nostri Stamf. 72. 5. E. 3. c. 8. 1 E. c. 3. 9. saith that every Capias in a personall action is a Commandment of the King for it is Praecipimus tibi quod capias c. and yet the defendant as there it is said is replevisable by the Common Law 7 R. 20. a. Calvins case saith that there are two kind of writs viz. brevia mandatoria remedialia brevia mandatoria non remdeialia breuia mandatoria remedialia are writs of Right Formedon c. debts trespasses and shortly all writs reall and personall whereby the party wronged is to recover somewhat and to be remedied for that wrong which is done unto him Sixthly I do finde by our books of Law and by the Register that this speciall mandatum domini Regis is expounded to be his writ and that the Law taketh no notice of any other speciale mandatum then by this writ the which being so when the return is made that he is imprisoned and detained in prison by the speciall commandment of the King how can the Court adjudge upon this return that Sir Iohn Corbet ought to be kept in prison and not to be bailed when the nature of the speciall commandment is not set forth in the return whereby it may appear unto the Court that he is not bailable In Bracton c. 12. 112. you shall see a writ reciting Praecipimus tibi quod non implacites nec implacitari permittas talem de libero tenemento suo in tali villa sine speciali praecepto nostro vel Capitalis Iusticiar ' nostri And the reason of it there is given quia nemo de libero tenemento sine brevi sive libello conventionali nist gratis voluerit respondebit So as the exception of speciall commandment by the very book appeareth to be breve sive libellus conventionalis Regist. 271. the writ of Manucaption goeth in this manner Rex vic Salut Cum nuper assignaverimus dilectos fideles nostros A. B. C. D. ad inquisitiones de forstallariis transgressionibus contra formam statuti dudum apud Winton editi in com tuo faciend ad illos quos inde culpabiles invenirent capiend in Prisona nostra salvo custod faciend donec aliud inde praecepissemus quod C. D. E. pro hujusmodi forstallamentis transgressionibus unde coram praefat A. B. C. indict fuerint capt in Prisona de L. detent exist à qua delibera ri non possunt sine mandato nostro speciali Nos volentes eisdem C. D. E. graciam in hac parte facere specialem tibi praecipimus quod si praedict C. D. E. occasione praedict non a lia in Prisona praedict detineantur pro transgressionibus illis secundum legem consuetudinem Regni nostri Angliae replegiabiles existunt c. tunc impos C. D. E. à Prisona praedict si ea occasione non alia detineantur in eadem interim deliberari facias per manucapt supradict habeas ibi tunc coram praefat Iusticiar nomina manncapt illorum hoc breve And the exposition of this speciale mandatum domini Regis mentioned in the writ is expounded to be breue domini Regis and thereupon is this writ directed unto the Sheriffe for the delivery of them And so for the branch of the first part I conclude that the speciall command of the King without shewing the nature of the commandment of the Kings is too generall and therefore insufficient for he ought to have returned the nature of the commandment of the King whereby the Court might have adjudged upon it whether it were such a commandment that the imprisonment of Sir Iohn Corbet be lawfull or not and whether it were such a commandment of the King that although the imprisonment were lawfull at the first yet he might be bailed by Law And as for the generall return of speciale mandatum domini Regis without shewing the cause of the imprisonment either speciall or generall I hold that for that cause also the return is insufficient First in regard of the Habeas corpus which is the commandment of the King onely made the 15 of November According to the Teste of the writ commanding the keeper of the Gatehouse to have the body of Sir Iohn Corbet una cum causa detensionis ad subjiciendum recipiendum ea quae curia nostra de eo ad tunc ibid. ordinar contingat So as the commandment of the writ being to shew the cause of his detaining in prison the keeper of the gatehouse doth not give a full answer unto the writ unlesse the cause of the detainment in prison be returned and the Court doth not know how to giue their judgement upon him either for his imprisonment or for his discharge according to the purport of the writ when there is not a cause returned and forasmuch as upon an excommengement certified it hath been adjudged oftentimes that Certificates were insufficient where the cause of the commitment hath not been certified that the Court might adjudge whether the Ecclesiasticall Judges who pronounced the excommunication had power over the original cause according to the book of 14 Hen. 4. 14. 8. Rep. 68. Trollops case 20 Ed. 3. Excommengement 9. So upon an Habeas corpus in this Court where a man hath been committed by the Chancellour of England by the Councell of England Marches of Wales Warden of the Stanneries High Commission Admiralty Dutchy Court of request Commission of Sewers or Bankrupts it hath severall times been adjudged that the return was insufficient where the particular cause of imprisonment hath not been shewen to the intent that it might appear that those that committed him had jurisdiction over the cause otherwise he ought to be discharged by the Law and I spare to recite particular causes in every kind of these because there are so many presidents of them in severall ages of every King of this Realm and it is an infallible maxime of the Law That as the Court of the Kings Bench and Judges ought not to deny an Habeas corpus unto any prisoner that shall demand the same by whomsoever he be committed so ought the
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
made fully to the maintenance of their resolution and that there was not one example or president of a Remittitur in any kinde upon this point before that of Cesars Case which is before cleared with the rest and is but of late time and of no moment against the resolution of the house of Commons And thus for so much as concerned the presidents of Record the first day of the conference desired by the Lords ended The next day they desired another conference which the house of Commons at which it pleased the Committee of both houses to hear M â— Attâ—rney again to make what Objection he would against other parts of the Arguments formerly delivered by the house of Commons He then Objected against the Acts of Parliament and against the reasons of Law and his Objections to these parts were answered as appears in the answers by order given into the house of Commons by the gentlemen that made them He Objected also upon the second day against that second kinde of presidents which are resolutions of Judges in former times and not of Records and brought also some other Testimonies of opinions of Judges in former times touching this point First for that resolution of all the Judges in England in 34. of Queen Eliz. mentioned and read in the Arguments made at the first conference he said That it was directly against the resolution of the House of Commons and observed the words of it to be in one place that Persons so committed by the King or the Councel may not be delivered by any of the Courts c. and in another that if the Cause were expressed either in generality or speciality it was sufficient and he said that the expressing of a cause in generality was to shew the Kings or Councels Command And to this purpose he read the whole words of that reâ—olution of the Judges Then he Objected also that in a report of one Ruswells Case in the Kings-bench in the 13. Iac. he found that the opinion of some Judges of that Court S r. Edward Coke being then Chief Justice and one of them was that a Prisoner committed per mandatum Domini Regis or privati Consilii without cause shewed and so returned could not be bayled because it might be matter of State or Arcanuâ— Imperii for which he stood committed And to this alâ—o he added an opinion that he found in a Journal of the House of Commons of the 13. Iac. wherein S r. Edward Coke speaking to a Bill preferred for the explanation of Magna Charta â—ouching imprisonâ—ent said in the House That a Prisoner so committed could not be enlarged by the Law because it might be Matter of State for which he was committed And among these Objectiâ—â—â— of other nature also he spake of the confidence that was shewed iâ— behalf of the House of Commons he said that it was not confidence could add any thing to the determination of the question but if it could that he had as much reason for the other side against the resolution of the House grounding himself upon the force of 〈◊〉 Objections which as he conceived had so weakned the Argument of the Commons House that notwithstanding any thing yet Objected they wereupon clear reason confident of the truth of their first resolution grounded upon so just examination and deliberation taken by them And it was observed to the Lords also that their confidence herein was of another nature and far greater weight then any confidence that could be expressed by M. Attorney or whomsoever elâ—e being of his Majesties Councel learned To which purpose the Lords were desired to take into their Memory the difference beâ—ween â—he present quality of the Gentlemen that â—pakâ— iâ— behalf of the House of Commons and of the Kings learned couâ—cel in their speaking there howsoever accidentally they were 〈…〉 of the same profession For the Kings Councel spake as 〈◊〉 perpetuâ—lly retained by Fee and if they made glosses and 〈…〉 adâ—anâ—agious Interpretations soever for their own part thâ—y did but wâ—aâ— belonged to their place and quality as M r. Attornâ—y had done But the Gentlemen that spake in behalf of the House of Commons came therâ— bound on the one side by the trust reposed in them by their Countrey that sent them and on the other bound also by an Oâ—th taken by every of them before they sit in they House to maintain aâ—d deâ—end the rights and prerogatives of the Crown So that 〈…〉 thâ— poâ—â—â— of confidence alone that of them that spake as â—â—tained Councel by perpetual Fee and might by their place being pâ—râ—itâ—ed to speak say what they would and that of them that spake as bound to nothing but truth but by such a trust and such an Oath were no way to be so compared or Counterpoised as if the one of them were of no more weight then the other And then the Objections before mentioned were also answered For that of the resolution of all the Judges of England in 34. Eliz. It was shewed plainly it agreed with the resolution of the House of Commons For although indeed it might have been expressed with more perspicuity yet the words of it as they are sufficiently shew that the meaning of it is no otherwise To that purpose besides the words of the whole frame of this resolution of the Judges as it is in the Coppy transcribed out of the Lord Chief Justice Andersons book written in his own hand which book was there offered to be shewed also in behalf of the House of Commons It was observed that the Records of the first part of it shew plainly that all the Judges of England then resolved that the Prisoners spoken of in the first part of their resolution were onely Prisoners committed with cause shewed for they onely said they might not be delivered by any of the Courts without due Trial by Law and Judgement of acquital had which shews plainly that they meant that by trial and acquital they might be delivered but it is clear that no trial or acquital can be had where is not some cause laid to their charge for which they ought to stand committed Therefore in that part of the resolution such Prisoners are onely meant as are committed without cause shewed which also the Judges in that resolution expresly thought necessary as appears in the second part of the resolution wherein they have these words If upon Return of the Habeas Corpus the cause of their commitment be certified to the Judges as it ought to be c. by which words they shew plainly that every return of a commitment is insufficient that hath not a cause shewed of it And to that which Mr. Attorney said as if the cause were sufficiently expressed in generality if the Kings Command or the Councels were expressed in it and as if that were meant in the resolution for a sufficient general cause it was answered That it was never heard of in Law that the power or
especially are to be taken into consideration the defence of Rochell the Elve and the Forts He perswades to give bountifully and though the people do not presently pay it yet it gives the King credit abroad and much advanceth his affairs We have already by our carriage and temper taken the Kings heart which he adviseth we make good use of S r. DUDLY DIGGS FOr to try and examine faithfully the Propositions he refers it to the Judgement of the House whether it be fit to handle the business in order or to give in gross considering that the Bill of Tonnage and Poundage is now brought into the House which he thinks they conceive to be given for the safe-guarding of the Seas Mr. SPENCER IN no Case to enter into particulars That formerly hath been given 5. Subsedies for the repairing of the Forts and no penny bestowed on them but the money wasted in dishonour Mr. IOHN ELLIOT THat our late disasters at Calis Reez might discourage us from thinking of forreign attempts At Calis when we neglected the taking of the Spanish Fleet in the Harbour nothing attempted at our landing but drincking and disorder no good account given at the return Concerning service at S. Martins the whole account carried against the Judgement of the best Commanders which makes all the World despise and condemne us besides the inriching of the Enemy with kindenesses and parling with the Forts with presents which time will bring to light Sr. EDWARD COKE THat when England stood alone without friends and addition of Kingdoms as 42. E. 3. the King wholly guided by his Parliament-Councel brought alwayes home Victories both against France and Scotland his 4. reasons of it were 1. Good Councel 2. Valiant Leaders 3. Timely provision 4. Good imployment and fore-cast And likewise in Ric. 2. Hen. 4. Hen. 5. He desires to give plentifully and that in gross not to examine the particulers alleadging Solomon's rule qui repetit separat for said he if we rip them up we sever them for ever And in that Proposition for setting forth 30. ships shall we both pay Tonnage and Subsedies for them This will draw a dangerous President Likewise that other in setting forth God knows whether a 1000. Horse and 10000. Foot being not able to set them forth how shall we look to maintain them abroad That in an Iland the defensive War is best and most proper To conclude our guift in gross will serve best with these times for by that course we shall seem to allow all the Propositions and except against none S r. THOMAS WENTWORTH THat he will look after the Iland of England and no further except our Fortunes were better That as he is bound in duty to the King so in faithfull love to his Countrey That our freedom and Liberty being known and granted we then may proportion our guift His conclusion was that the â—inal debate of this question may be laid aside untill Friday and in the mean time go on with our grievances S r. HENRY MARTIN NOt to dash the Ship of the Common-wealth twice upon one Rock The disease that we are now sick of is the Kings Evil which none but himself can cure and Iacob's example is our best Predent who wrestling with the Angel would not give over till he got the blessing That our often repetition of grievances breeds hate and dislike And because we have not to give what is asked Yet to give freely what we intend to give and so by this freeness we shall win the Kings heart M r. KERTON HE desires to know the Rock to the end we may avoid it and not to go back but forward in our conclusion S r. ROBERT PHILIPS HIs good hopes are in his Majesties royal care and wisdom That the free and great Councel is the best but time and hope of change is coming towards us Rome and Spain trench deeply into our Councels That heretofore there hath been a fair progress on both parts according to the saying of the late King If the Parliament did or should give more then the Countrey could bear they gave him a purse with a knife in it Serjant HOSKINS THat knowing our own rights we shall be better enabled to give Two legs go best together our just grievances and our supply which he deâ—ires may not be seperated for by presenting them together they shall be both taken or both refused Serjant ASHLEYS Argument seconding M r. ATTORNEY in the behalf of his MAJESTIE I Hope it will be neither offensive nor tedious to your Lordships if I said somewhat to second M r. Attorney which I the rather desire because yesterday it was taken by the Gentlemen of and argued on the behalf of the Commons that the cause was as good as gained by them and yielded by us in that we acknowledged the Statute of Magna Charta and the other subsequent Statutes to be yet in force for on this they inforced this general conclusion That therefore no man could be committed or imprisoned but by due process presentment or indictment Which we say is a non sequitur upon such our acknowledgement for then it would follow by necessary consequence that no imprisonment could be justified but by process of Law which we utterly deny For in the cause of the Constable cited by M r. Attorney it is most clear that by the ancient Law of the Land a Constable might ex officio without any Warrant Arest and restrain a man to prevent an affray or to suppress it And so is the Authority 38. Hen. 8. Brooks abstract So may he after the affray apprehend and commit to Prison the Person that hath wounded a man that is in peril of death and that without Warrant or Process as it is in 38. E. 3. fol. 6. Also any man that is no Officer may apprehend a Fellon without Writ or Warrant or pursue him as a Wolf and as a common enemy to the Common-wealth as the Book is 14. H. 8. fol. 16. So might any one arrest a Night-walker because it is for the common profit as the reason is given 4. Hen. 7. fol. 7. In like manner the Judges in these several Courts may commit a man either for contempt or misdemeanour without either Process or Warrant other then take him Shrief or take him Marshall or Warden of the Fleet. And the Adversaries will not deny but if the King will alleadge cause he may commit a man per mandatum as the Judges do without Process or Warrant And various are the cases that may be instanced wherein there may be a Lawfull commitment without Process Wherefore I do possitively and with confidence affirm that if the imprisonment be Lawfull whether it be by Process or without Process it is not prohibited by the Law Which being granted then the question will aptly be made whether the King or Councel may commit to Prison per legâ—m terrâ— were onely that part of the Municipal Law of this Realm which we call the
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
they have been delivered upon Habeas Corpus and that constantly It is true that some Presidents were brought on the Kings part that when some of these persons desired to be delivered by Habeas Corpus the King or his Councel signified his Majesties pleasure that they should be delivered or the Kings Attorney hath come into the Court and related the Kings Command but this seems to make for the Subject For that being in his Majesties power to deliver them who by his special Command were imprisoned May not we well think that his Majesty would rather at that time have stayed their deliverance by Law then furthered it with his Letters and made the Prisoners rather beholding to him for his grace and mercy then to the Judges for Justice had not his Majesty known that at that time they ought to have been delivered by Law I think no man would imagine a wise King would have suffered his Grace and Prerogative if any such Prerogative were to be so continually questioned and his Majesty and his Councel so far from commanding the Judges not to proceed to deliver the Prisoner by them committed without Cause shewn as that on the other side which is all the force of these Presidents the King and the Councel signified to the Judges that they should proceed to deliver the parties certainly if the King had challenged any such Prerogative that a Person committed without any cause shewn ought not to be delivered by the Judges without his consent it would have appeared by one President or other amonst all that have been produced that his Majesty would have made some claim to such a Prerogative But it appears to the contrary that in many of these cases the King or his Councel did never interpose and where they did it was alwayes in affirmation and incouragement to that Court to proceed And besides the writing of Letters from his Majesty to the Judges to do Justice to his Majesties Subjects may with as good reason be interpreted that without those Letters they might not do Justice also the King signified his willingness that such such Persons which were committed by him should be delivered therefore they could not be delivered without it which is a strange reason So that findeing the Laws so full so many and so plain in the point and findeing that when ever any were committed without cause shewn brought their Habeas Corpus they were delivered and no Command ever given to the contrary or claim made on the Kings part to any such Prerogative I may safely conclude as the House of Commons have done and if any one President or two of late can be shewn that the Judges have not delivered the Prisoners so committed I think it is their fault and to be enquired of but contrary it seems to me to be an undoubted Liberty of the Subject that if he be committed without cause or without cause shewn yet he may have some speedy course to bring himself to Trial either to justifie his own innocencie or to receive punishment according to his fault for God forbid that an innocent man by the Laws of England should be put in worse case then the most grievous Malefactors are which must needs be if this should be that if a cause be shewed he may have his Trial but if none he must lie and pine in Prison during pleasure Mr. Serjeant Ashley the other day told your Lordships of the Embleme of a King but by his leave made wrong use of it For a King bears in one hand the Globe and in the other the golden Scepter the tipes of Soveraignty and mercie but the Sword of Justice is ever carried before him by a Minister of Justice which shews Subjects may have their remedies for unjustice done and appeals done to higher powers for the Laws of England are so favourable to their Princes as they can do no unjustice Therefore I will conclude as all disputes I hold do Magna est veritas praevalebit so I make no doubt we living under so good a Prince as we do when this is represented unto him he will answer us Magna est Carta praevalebit The ARCH-BISHOPS of CANTERBURIES Speech at the Conference of both Houses 25. April 1628. GEntlemen of the House of Commons the service of the King and safety of the Kingdom do call on us my Lords to give all convenient expedition to dispatch some of those great and weighty businesses for the better effecting whereof my Lords have thought fit to let you know that they do in general agree with you and doubt not but you will agree with us to the best of your power to maintain and support the fundamental Laws of the Kingdom and the fundamental Liberties of the Subject for the particulers which may hereafter fall in debate they have given me in charge to let you know that what hath been presented by you to their Lordships they have laid nothing of it by they are not out of love with any thing you have tendered to them they have voted nothing neither are they in love with any thing proceeding from themselves for that which we shall say and propose unto you is out of an intendment to invite you to a mutual and free conference that you with confidence may come to us and we with confidence may speak to you so that we may come to a conclusion of those things which we both unanimously desire we have resolved of nothing defined or determined nothing but desire to take you with us praying help of you as you have done of us My Lords have thought upon some Propositions which they have ordered to be read here and then left with you in writing that if it seem good to you we may uniformly concur for the substance and if you differ that you may be pleased to put out or add or alter or diminish as you shall think fit that so we the better come to the end that we do both so desireously embrace Then the 5. Propositions were read by the Lord BISHOP of NORVVHICH The 5. Propositions 25. April 1628. 1. THat his Majesty would be pleased gratiously to declare that the good old Law called Magna Charta and the 6. Statutes conceived to be Declarations or Explanations of that Law do stand still in Force to all intents and purposes 2. That his Majesty would be pleased gratiously to declare that according to Magna Charta and the Statutes aforesaid as also according to the most ancient Customes and Laws of this Land every free Subject of this Realm hath a fundamental propriety in his good and a fundamental Liberty of his Person 3. That his Majesty would be pleased gratiously to declare that it is his Royal pleasure to ratifie and confirm unto all and every his faithfull and Loyal Subjects all their antient several just Liberties Priviledges and Rights in as ample and beneficial manner to all intents and purposes as their Ancestors did enjoy the same
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
this Bill and rely onely upon a confirmation of the Laws The Objections made against this Opinion are two THe first is that we shall thereby recede from our own resolution The second that by a bare confirmation of the Old Laws without the inserting of our resolution by way of explanation we shall be but in the same case as before For the first that though we desire onely a confirmation without adding of our resolution we do not thereby recede from our resolution I reason thus Our resolution was drawn out of the sence of those Laws which are now desired to be confirmed so that no question can be made by any of us that have thus declared our selves but that our resolution is virtually contained in those Laws if that be so how can our acceptance of a confirmation of these Laws be a departure from our resolution Nay rather we think the contrary is true he that doubts that by confirmation of these Laws our resolution is not hereby confirmed doubts whether we have justly deduced our resolutions out of those Laws and so calls our resolution into question This Argument alone is in my opinion a full answer to that first Objection that in desiring of a bare confirmation of those Laws we depart from our resolutions This Arguments alone is in my opinion a full answer to that first Objection that in desiring of a bare confirmation of these Laws we depart from our resolution The second Objection is that if we have nothing but a confirmation we are in no better case then we were before those late violations of the Law This I deny and do confidently affirm that although we have no more then a confirmation of those Laws which are recited in the Bill that is now before us we shall depart hence in far better case then we came and that in divers respects First some of the Laws recited in this Bill and desired to be confirmed are not printed Laws and are known to few Professors of the Law and much less to others and yet they are Laws of as great consequence for the liberty of the Subject if not of greater then any that are printed as namely 25. E. 3. N o. 1. That loanes against the will of the lender are against reason and the freedom of the Realm 36. E. 3. N o. 9. By which imprisonments by special commandment without due Process are forbidden These two are not printed The excellent Law de tollagio non Concedendo in print hath in a publick Court been by a great Coucellour said to be but a Charter and no Law The Satute 1. Rich. 3. against benevolences is by some opinions in print an absolute Law if we can get all these goods Laws besides those 6. other which are expositions of Magna Charta in the point of the freedom and our Persons to be confirmed and put in one Law to the easie view of all men is not our Case far better then when we came hither Secondly will not the occasion of the making of this Law of confirmation so notoriously known be transmitted to all posterity certainly it will never be forgotten that the occasion thereof was the imprisonment of those worthy Gentlemen for not lending and the resolution in the Kings-bench in denying to bayl them and is not the occasion of the making of a Law a good rule to expound it If so then by giving a confirmation upon this occasion we have bettered our Case very much Thirdly have not the Judges in the Kings-bench in open Parliament upon our complaint disclaimed to have given any Judgement in the point which generally before by the Parliament was otherwise conceived for now they say it was but an Award and no Judgement Will such a Notorious Act upon so important an occasion in so publick a place be quickly forgotten Nay will not the memorie of it for ever remain upon Records is not our Case then much better then when we came hither Fourthly will not the resolution of this House and all our Arguments and reasons against imprisonment without a Cause expressed which no doubt by the course we have taken will be transferred to posterity be a great means to stay any Judge hereafter for declaring any Judgement to the contrary especially if there be likelyhood of a Parliament is not our Case in this very much amended Lastly have we not received Propositions from the Lords wherein amongst other things they declared that they are not out of love with our proceedings is not this a great strenghtning to it but after so long debate amongst them about it they cannot take any just exception to it and doth not this also much amend our Case From all these reasons I conclude that the second Objection that by a confirmation we are in no better case then when we came together is also a weak Objection Now for reasons to move us to proceed in this course of accepting a confirmation First we have his Majesties gracious promise to yield to a confirmation of the old Laws from which we may rest most assured he will not depart If we tender him with all our Proposition to be enacted we have cause to doubt that we shall loose both the one and the other Secondly we are no less assured of the Lords joyning with us for in their Propositions sent to us they have delivered themselves to that purpose This is then a secure way of getting somewhat of great advantage to us as we have great hopes and in manner assurance on this side So on the other side we have great doubts and fears that by offering our resolution to be enacted we shall loose all For first we have had already experience of the Lords that they are not very foreward to joyn with us in a Declaration of our Proposition to be Law If they stumble at a Declaration much more will they in yielding to make Law in the same point And have we not much more cause to doubt that his Majesty will not yield unto it seeing it toucheth him so near Is it not the notice of his pleasure that hath wrought thus with the Lords If we should clog our Bill with our Proposition and it should be rejected by the Lords or by the King is not our resolution much weakned by it And are we not then in far worse case then before we made it Our resolution for the rejecting of our Proposition will tend to a Justification of all that hath been done against us in this great point of our Liberty Let us then like wise-men conform our desire to our hopes and guide our hopes by probabilities other desires and other hopes are but vain This is my poor opinion in this weighty business Secretary COKES Message 1. May 1628. M r. Speaker I Have a very short message to deliver from his Majesty that shews both his Royal care to be rightly understood of this House and no less care to understand us in the best part and
to shew clearly it shall not be his fault if this be not a happy Parliament His Majesty hath commanded me to desire this House clearly to let him know whether they will rest upon his Royal word and promise made at several times and especially by my Lord Keepers Speech made in his own presence which if they do he doth assure you that it shall be royally and really performed After speaking of himself and the nature of his place under his Majesty he proceeded in these words GIve me leave freely to tell you that I know by experience that by the place I hold under his Majesty if I will discharge the duty of my place and the Oath I have taken to his Majesty I must commit and neither express the cause to the Jaylor nor to the Judges nor to any Councellour in England but to the King himself yet do not think I go without ground fo reason or take this power committed to me to be unlimmitted Yea rather it is to me a charge burthen and danger for if I by this power shall commit the poorest porter if I do it not upon a just cause if it may appear the burthen will fall upon me heavier then the Law can inflict for I shall loose my credit with his Majesty and my place And I beseech you consider whether those that have been in the same place have not committed freely and not any doubt made of it nor any complaint made by the Subject Veneris 2. May 1628. A Report was this day made from the grand Committee for grievances concerning the cause of Nicholas Clegat Cittizen and Vintner of London imprisoned by the Lord Major and Aldermen of the said Citie for refusing to lend a certain summe of money assessed upon him by the Company of Vintners of London whereof he is free towards the proportion of money imposed upon the Company by an Act of Common-Councel of the said Citie in pursuance of a contract of Land with his Majesty By which report it appeared that the said grand Committee had unanimously agreed that the said Citie might make Acts of Councel so as they were consonant to Law and reason and for regulating and deciphering of trade agreeable to reason and the Law of the Realm and might leavy money of the Cittizens by Act of Common-Councel for building or repairing of their Walls Gates or making or cleansing of Sewers or other like causes tending to the general and publick good and welfare of the Citie or towards Triumphs or other like occasions tending to the Honour of the Citie in general but could not by such Act of Common-Councel tax or leavy money towards the purchasing of Lands or other like occasion forreign to the government of the Citie Whereupon it is resolved by the House of Commons super totam materiam that the said Commitment of the said Nicholas Clegat was unlawfull and that a Petition should go from the House to his Majesty for the inlargement of the said Nicholas Clegat his commitment by the Lord Major and Aldermen being since strengthned by special command Henry TOMPSON one of the Shrieffs and Robert HENISVVORTH Alderman of the Citie of YORK their submission for their indirect chusing of S r. Thomas SAVIL Knight I Henry Tompson one of the Shrieffs of the Citie of York do hereby acknowledge to have offended the Lord Major and all the Cominalty of the Citie by the undue pronouncing and return of S r. Thomas Savil Knight to be one of the Cittizens to serve in this Parliament for the said Citie whereas I ought of right to have pronounced and returned in his place M r. Thomas Royle Alderman of the said Citie I am hartily sorry for my said offence and misdemeanour and crave pardon of my Lord Major and all the Cominalty and in particuler of the said Alderman Hoyl for the same I Robert Henisworth Alderman of the Citie of York do acknowledge that I have offended the Lord Major and all the Cominalty of of the said Citie by my undue preparing and practising the election of S r. Thomas Savill Knight to be chosen one of the Cittizens for the said Cittie of York to serve in this present Parliament I am hartily sorry for my said offence and do desire my Lord Major and all the said Cominalty to pardon me for the same Propositions drawn for the defence of this Kingdom and the annoyance of the enemies of the same by Sea THat every Shire in England shall be injoyned on the charge of the Countrey to set forth one Ship well maned and victualled for 7. Moneths and to be of the burthen of 500 300 or 140. Tuns at the least according to the ability of the Shire in the opinion of the State That every Port or Sea-Town according to their abillity be injoyned to do the like London may well furnish 10. Bristol 3. and the rest according to their abillity And such of the Sea-Towns as are not of abillity to set forth Ships of the burthen aforesaid to furnish out Pinnaces of 60 or 80 Tuns for Light-Horsmen or Intelligencers Those Ships will amount to 80. Sail and above and these to be divided into 4. Squadrons adjoyning unto every Squadron one of the Kings Ships for their Admiral The first Squadron to lye off and on the Western Ilands and as â—igh as theiâ— aâ—â—ries for 〈◊〉 men the Caracks and the Plate-Fleet and all other trading that way 〈…〉 The fourth Squadron to keep the Narrow Seas to awe the Dunkerkers to take all the French trade and so Northward and this Squadron to be still relieved with fresh Ships as the other shall grow foul or come to any misfortune so as this Squadron may continually keep the Seas most part of the year That no Master of these Ships be owner or have any part in her that he goeth in Master of for they will be unwilling to bring their Shin in fight or danger and use many tricks and devices especially if there be an ignorant Captain Therefore it is expedient likewise that every Shire should nominate a Captain for the Ship that they furnish out for the avoiding of ignorant and insufficient Captains That in London Pâ—rtsmouth or elsew here where the State shall think fit there be Store-houses appointed for the receipt of such Prizes as shall be taken by any of the 4. Squadrons That every County or Sea-Town that furnisheth the said shipping may nominate and have a Master of their own free election that may have power in the behalf of the Counties and Sea-Towns as the other Officers that shall be appointed for the King for the opening of decks of the Prizes receiving the goods into the said Store-houses and for the divideing and disposing them according That what Prizes any of the 4. Squadrons shall take be brought into one of the Port Towns where those Store-houses are appointed and the benefit of all Prizes what Squadron soever of the 4. sendeth them in be divided the Kings part
being deducted to the several Counties and Sea-Towns of the Kingdom according to the burthen of their shipping and not particularly to such Counties or Sea-Towns unto which the Squadron of Ships belongeth that shall send in the said Prizes That it shall not be Lawfull for any in the said Ships to break take or open the deck of any Prizes they take but nail them down fast 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
goodness without which they well know nothing they can frame or desire will be of safety and value to them and therefore are all humble Suitors to your Majesty that your Royal heart would graciously accept and believe the truth of theirs which they humbly present and full of trust and confidence in your Royal word and promise as ever House of Commons reposed in any of their best Kings True it is they cannot but remember the publick trust for which they are accomptable to present and future times and their desires are that your Majesties goodness in fruit and memory be the blessing and joy of posterity They finde also that of late there hath been publick violation of your Laws and the Subjects Liberties by some of your Majesties Ministers and thence conceive that no less then a publick remedy will raise the dejected hearts of your loving Subjects to a cheerfull supply of your Majesty or make them receive content in the proceeding of this House From these considerations they must humbly beg your Majesties leave to lay hold of that gracious offer of yours which gave them assurance that if they thought fit to secure themselves in their Rights and Liberties by way of Bill or otherwise so it might be provided for with due respect to his Honour and publick good he would graciously be pleased to give way unto it Far from their intentions it is to incroach upon your Soveraignty or Prerogative nor have they the least thought of straining or inlarging the former Laws in any sort by any new interpretations or additions The bounds of their desire extend no further then to some necessary explanation of what is truely comprehended within the just sence and meaning of those Laws with some moderate provision for execution and performance as in times past upon like occasions have been used The way how to accomplish these their humble desires is now in serious consideration with them wherein they humbly assure your Majesty they will neither loose time nor seek any thing of you Majesty but what they hope may be fit for dutifull and Loyal Subjects to ask and for a gracious and a good King to grant The KINGS Answer to the House of Commons delivered by the Lord Keeper 5. May 1628. MR. Speaker and the Gentlemen of the House of Commons his Majesty hath commanded me to tell you that he expected an answer by your actions and not delay by discourse You acknowledge his trust and confidence in your proceedings but his Majesty sees not how ye requite him by your confidence of his word and actions for what need explanations if you doubt not performance of the true meaning for the explanation will hazard an incroachment upon his Prerogative and it may well be said what needs a new Law upon any old if you repose confidence in the Declaration his Majesty lately made by me to both Houses and your selves acknowledge that the greatest trust and confidence must be in his Majesties grace and goodness without which nothing that you can frame will be of safety or available to you Yet to shew clearly the sincerity of his Majesties intentions he is content that a Bill be drawn for confirmation of Magna Charta and the 6. other Statutes insisted on for the Subjects Liberties if you shall chuse that to be the best way so that it be without Additions Paraphrase or Explanations Thus if you please you may be secured from your needless fears and this Parliament may have a happy wished for end whereby the contrary if you seek to tye the King by new and indeed impossible bonds you must be accomptable to God and your Countrey for the ill success of this meeting His Majesty having given his Royal word that you shall have no cause to complain hereafter less then which hath been enough to reconcile great Princes and therefore ought much more to prevail between King and Subject Lastly I am commanded to tell you that his Majesties pleasure is that without further replies of Messages or other unnecessary delayes you do what you mean to do speedily remembring the last Message which his Majesty sent you by Secretary Coke for point of time his Majesty alwayes intending to perform his promise to his people The Lord COKES speech at the conference in the Painted Chamber presenting the Petition of Right 8. May 1628. I Pray your Lordships to excuse us for we have been till one of the Clock about the great business and blessed be God we have dispatcht it in some measure and before this time we were not able to attend your Lordships but I hope that this will prove to be a great blessing to us My Lords I am commanded from the House of Commons to express their singuler care and affection they have of concurrence with your Lordships in these urging affairs and proceedings of this Parliament both for the good of the Common-wealth and principally for his Majesties And this I may say in this particuler if we have hundreds of tongues we were not able to express this desire which we have of that concurrence with your Lordships but I will leave it without any further expression My Lords what necessity there is both in respect of your selves and your posterities in the good success of this business we have acquainted your Lordships with the reasons and the arguments and also that we have had some conference about it we have received from your Lordships 5. Propositions and it behoves us to give your Lordships some reasons why you have not heard from us before now for in the mean time as we were consulting of this weighty business we have received divers messages from our great Soveraign the King and they consisted upon 5. parts First was that his Majesty would maintain all his Subjects in their just freedom both of their Persons and Estates Secondly That he will govern according to his Laws and Statutes Thirdly That we shall finde much confidence in his Royal word I pray observe that Fourthly That we shall enjoy all our Rights and Liberties with as much Freedom and Liberty as ever any Subjects have before times Fifthly That whether we shall think it fit either by way of Bill or otherwise to go on in this great business his Majesty would be pleased to give way to it These gracious messages do so work upon our affections that we have taken them into consideration My Lords when we had these messages I deal plainly for so I am commanded by the House of Commons We did consider in that way we may go for our most secure way nay yours we do think that the safest way was to go a Parliament course for we have a Maxim in the House of Commons and written on the walls of our House that old wayes are the safest and surest wayes And at last we fell upon that which we did think if that your Lordships shall consent with us as the most ancient way of all and that is my
his way to the Crown of England the more easie and the possession of it the more sure claiming it by little but afterwards when there were no powerfull pretenders to the Crown The little of Conquest to introduce that absolute power of a Conquerour was claimed and that Statute of Magna Charta and other Statutes mentioned in our Petition do principally limmit that power I hope it is as Lawfull for me to cite a Jesuite as it is for Dr. Manwaring to falsifie him Suares in his first book de legibus cap. 17. delivered his opinion in these words amplitudo restrictiâ— potestatis Regum circa ea quae per se mala vel injusta non sunt pendet ex arbitrio hominum ex ambigua convencione vel pacto inter Reges Regnum And the further expresseth his opinion that the King of Spain was so absolute a Monarch that he might Lawfully impose tribute without consent of his people untill about 200. years since when it was concluded between him and his people that without consent of his people by proxies he should not impose any Tribute And Suares opinion is that by that agreement the Kings of Spain are bound to impose no Tribute without consent And this agreement that Author calls a restraining of that Soveraign power the Statutes then mentioned in our Petition restraining that absolute power of a Conquerour if we recite those Statutes and say we have the Soveraign power intire we do not take away that restraint which is the virtue and strength of those Statutes and set at Liberty the claim of the Soveraign power of a Conquerour which is to be limitted and restrained by no Laws this may be the danger of the word entyre The next words delivered by the Lords as observable is the particle that because it was said that all Soveraign power is not mentioned to be left but onely that with which the King is trusted for our protection safety and happiness But I conceive this to be an exception of all Soveraign power for all Soveraign power in a King is for the protection safety and happiness of his people If all Soveraign power be excepted you may easily Judge the consequence all Loans and Taxes being imposed by colour of that Soveraign power The next word is trusted which is very ambiguous whether it be meant trusted by God onely as a Conquerour or by the people also as King which are to Govern also according to Laws ex pactâ— In this point I will not presume to adventure further onely I like it not by reason of the doubtfull exposition it admits I have likewise considered the proposition it self and therein I have fallen upon the dilemma that this addition shall be construed either to refer unto the Petition or not If it doth refer unto the Petition it is meerly useless and unnecessary and unbefitting the Judgement of this grave and great Assembly to add to a Petition of this weight If it hath reference 〈◊〉 it then it destroys not onely the virtue and strength of our Petitionâ—â—â— Right but our rights themselves for the addition being referred 〈◊〉 each part of the Petition will necessarily receive this construction That none ought to be compelled to make any guift loan or such like charge without common consent or Act of Parliament unless it be by the Soveraign power with which the King is trusted for the protection safety and happiness of his people That none ought to be compelled to sojourn or billet Souldiers unless by the same Soveraign power and so of the rest of the Rights contained in the Petition And then the most favourable construction will be that the King hath an ordinary Prerogative and by that he cannot impose Taxes or Imprison That is he cannot impose Taxes at his will to imploy them as he pleaseth that he hath an extraordinary and transcendent Soveraign power for the protection and happiness of his people and for such purpose he may impose Taxes or billet Souldiers as he pleaseth and we may assure our selves that hereafter all Loans Taxes and billeting of Souldiers will be said to be for the protection safety and happiness of the people Certainly hereafter it will be conceived that an House of Parliament would not have made an unnecessary addition to this Petition of Right and therefore it will be resolved that the addition hath relation to the Petition which will have such operation as I have formerly declared and I the rather fear it because the late Loan and Billeting have been declared to have been by Soveraign power for the good of our selves and if it be doubtfull whether this proposition hath reverence to the Petition or not I know not who shall Judge whether Loans or Imprisonments hereafter be by that Soveraign power or not A Parliament which is made a body of several wits and may be dissolved by one Commission cannot be certain to decide this question We cannot resolve that that the Judges shall determine the words of the Kings Letter read in this House expressing the cause of Commitment may be such that the Judges have not capacity of Judicature no rules of Law to direct guide their Judgements in cases of that transcendent nature the Judges then and the Judgements are easily conjectured It hath been confessed by the Kings Councel that the Statute of Magna Charta bindes the King and his Soveraign power cannot be divided from himself If then the Statute of Magna Charta bindes the King it bindes his Soveraign power if to the Petition these words be added the exposition then must be that the Statute of Magna Charta binds the Kings Soveraign power Saving the Kings Soveraign power I shall endevour to give some answer to the reasons given by the Lords The first is that it is the intention of both Houses to maintain the just Liberty of the Subject and not to diminish the just power of the King and therefore the expression of that intention in this Petition cannot prejudice us which I answer First that our intention was and is as we then professed and no man can assign any particuler in which we have done to the contrary Neither have we any way transgressed in that kinde in this Petition and if we make this addition to the Petition it would give some intimation that we have given cause or colour of offence therein which we deny and which if any man conceive so that he would assign the particuler that we may give an answer thereunto By our Petition we onely desire our particuler Rights and Liberties to be confirmed to us and therefore it is not proper for us in it to mention Soveraign power in general being altogether impertinent to the matter in the Petition There is a great difference between the words of the addition and the words proposed therein for reason viz. between just power which may be conceived to be limmitted by Laws and Soveraign power which is supposed to be
yet may be broken by the word Soveraign power and so the virtue of the Petition taken away The end of the Petition is not to enlarge the bounds of Law but their Liberties being infringed to reduce them to their ancient bounds and shall we by admitting of these words Soveraign power instead of cureing the wound launch it and cut it deeper The next point is the word trust a word of large latitude and deep sence we know that there is a trust in the Crown and King but regulated by Law we acknowledge in penal Statutes the King may grant another power to dispense with the Law but Magna Charta inflicting no penalty leaveth no trust but claimeth his own right therefore the word trust would confound this distinction Our next reason is we think it absolutely repugnant to any course of Parliament to put saving to the Petition In former times the course of petitioning the King was this The Lords and the Speaker either by words or writing preferred their Petition to the King this then was called the Bill of the Commons which being received by the King part he received and part he put out part he ratified for as it came from him it was drawn into a Law But this course in 2. H. 5. was found prejudicial to the Subject and since in no such cases they have petitioned by Petition of Right as we now do who come to declare what we demaund of the King For if we should tell him what we should not demaund we should then proceed not in a Parliamentary course Now for that which is alleadged by your Lordships de articulis sup Chartas that my Lords is not like this that is saving upon particulars But this Petition consisting on particulers would be destroyed by a general saving The saving de articulis sup Chartas are of three aids for Ransomming the Kings Person for Knighting the Kings eldest Son and once for Marrying the Kings eldest Daughter These by the form of the Petition shew that they came not in upon the Kings answer but upon the Petition First then followed the savings which under favour we think are no reasons to make us accept of this saving being not pertinent to the Petition These 23. Statutes 34. E. 1. were made to confirm Magna Charta so that there are in all 30. Acts to set Magna Charta in its purity and if some subsequent Statute have laid some blemish upon it shall we now then make the subject in worse case by laying more weight upon it God forbid In the next place your Lordships reason thus that this which you wish we would admit of is no more then what we formerly did profess when we sent the King word we had no purpose at all to trench upon his prerogatives It is true my Lords we did so but this was not annexed to any Petition for in that manner we should never have done it And here I am commanded with your favours to deliver unto you what a Learned Member of the House delivered unto our House touching this point The King saith he and the Subject hath two liberties Two Mannors joyning one upon another the King is informed the Subject hath intruded upon him but upon triall it appeareth not to be so were it fitting think you that the Subject should give security that he should not inâ—roach or intrude on that Mannor of his because the King had been informed he did so I think you will be of another minde wherefore I am commanded seeing we cannot admit of this addition to desire your Lordships to joyn with us in the Petition which being granted and the hearts of the King and people knit togeather I doubt not but his Majestie will be safe at home and feared abroad Sir HENRY MARTINS Speech MY Lords the work of this day wherein the House of Commons hath implyed the Gentleman that spake last and my self was to reply to the answer which it hath pleased the Lord Keeper to make to those reasons which we had offered to your Lordships conâ—ideration in justification of our refusall not to admit into our Petition the addition commended by your Lordships which reasons of ours since they have not given such satisfaction as we desired and well hoped as by the Lord Keepers answer appeared It was thought fit for our better order and method in replying to divide the Lord Keepers answer into two parts a Leagall and a Rationall The reply to the leagall your Lordships have heard my self comes intrusted to reply to the rational which also consisted of two branches the first deduced from the whole context of the additional clause the second inforced out of some part In the first were these reasons that the same deserved our acceptance First as satisfactory to the King Secondly to your Lordships Thirdly agreeable to what our selves had often protested and professed expresly by the mouth of our Speaker I must confess these motives were weighty and of great force and therefore to avoid misunderstanding and misconceit which otherwise might be taken against the House of Commons upon refusall of the propounded addition It is necessary to State the question rightly and to set down the true difference between your Lordships and us Now indeed there is no difference or question between your Lordships and us concerning this additional clause in the nature and quality of a proposition For so considered we say it is most true and to be received and imbraced by us In toto qualibet parte qualibet syllaba yea and were that the question we should add to this addition and instead of due regard say we have had have and ever will have a special and singular regard where to leave entire Sovereign power were to intimate as if we had first cropt it and then left it but our regard was to acknowledge and confess it sincerely and to maintain it constantly even to the hazard of our goods and lives if need be To which purpose your Lordships may be pleased to remember that strict oath every Member of our House hath taken this very session in these words I A. B. do utterly testifie and declare in my Conscience that the Kings highness is the Supreme or Sovereign Governour of this Realm in all Causes c. and to my utmost power will assist and defend all Iurisdictions Priviledges Preheminencies and Authorities granted or belonging to the Kings Highness or united or annexed to the Impâ—rial Crown of this Realm c. So that your Lordships need not to borrow from our protestations any exhortations to us to entertain a writing in assistance of the Kings Sovereign power since we stand obliged by the most Sacred bond of a solemn Oath to assist and defend the same if cause or occasion so required So that the onely question between your Lordships and us is whether this clause should be added to our Petition and received into it as part thereof which to do your Lordships reasons
have not perswaded us because so to admit it were to overthrow the fabrick and substance of our Petition of Right and to annihilate the Right pretended by us and the Petition it â—elf in effect For these words being added to our Petition viz we humbly present this Petition c. with due regard to leave intire your Sovereign power c. do include manifestly an exception to our Petition and an exception being of the nature of the thing whereunto it is an exception Exceptio est de regula must of necessity destroy the rule or Petition so far as to the Case excepted Exceptio firmat regulam in Casibus non exceptis in Casibus exceptis distruit Regulam Then this construction followeth upon our Petition thus inlarged that after we have Petitioned That no Freeman should be compelled by imprisonment to lend or contribute money to his Majestie without his assent in Parliament nor receive against his will Souldiers into his house or undergo a commission of Martiall Law for life or Member in time of peace We should add except his Majestie be pleased to require our monies and imprison us for not lending and send Souldiers into our houses and execute us by Martiall Law in time of peace by virtue of his Soveraign power Which construction as it followeth necessarily upon this inlargment so it concludeth against our Right in the premisses and utterly frustrateth all our Petition neither may it seem strange if this clause additionall which of it self in quallity of a proposition we confess being added to our Petition which also is true should overthrow the very frame and fabrick of it seeing the Logicians take knowledge of such a Fallacy called by them Fallacia à bene divisis ad male conjuncta Hâ—race the Poet giveth an instance to this purpose in a painter who when he had painted the head of a Man according to Art would then joyn to it the neck of a horse and so marr the one and the other whereas each by it self might have been a peice of right good workmanship The second branch of my Lordkeepers rationall parte was enforced out of the last words of this addition by which his Lordship said that they did not leave intire all Soveraign power but that wherewith his Majestie is trusted for the protection safety and happiness of the people as if his Lordship would infer that Soveraign power wherewith c. in this place to be terminum diminuentem a term of diminution or quallification and in that consideration might induce us to accept it but under his Lordships correction we cannot so interpret it For first we are assured that there is no Sovereign power wherewith his Majestie is trusted either by God or Man but onely that which is for the protection safety and happiness of his people and therefore that limitation can make no impression upon us but we conceive it rather in this place to have the force termini adaugentis to be a term of important advantage against our Petition a term of restriction and that wheresoever his Majesties Soveraign power should be exercised upon us in all or any the particulars mentioned in the Petition we should without further inquiry submit thereunto as assuming and taking it pro concesso it induced to our safety and happiness c. Since therefore as the Petition is now conceived it carrieth the form and face of a picture which representeth to the life the pressures and grievances of the peoples with the easie remedies And therefore we hope that his Majesties casting upon it a gratious eye will compassionate his poor loyall Subjects and afford a comfortable answer I do humbly pray your Lordships not to marr or blemish the grace and face of this picture with this unnecessary addition and unnecessary I prove it to be according to that Rule expressio ejus quod tacitè inest nihil operatur And Soveraign power in Cases where it hath place and ought to be used is alwayes necessarily understood and though not expressed yet supplied by reasonable intendment or by the opinion of all Learned men And therefore as it neither is nor can be by us expresly included especially in this Petition where the addition thereof would make such a confusion of the whole sence and substance The Kings Soveraign power and Prerogative is alwayes able to save it self and if it were not we must without this addition save it to our utmost powers if we will save our Oath and save our selves The true state of the cause thus standing between your Lordships and us the House of Commons doth not a little marvel upon what grounds your Lordships are so earnest to urge upon them this addition to be inserted into their Petition they nothing doubt but that the same proceeded out of a sollicitude and fear which your Lordships have least otherwiâ—e the simple and absolute passage of this Petition might be construed hereafter in prejudice of his Majesties Soveraign power And this your Lordships sollicitude and fear proceedeth from your love as the Poet saith Res est solliciti plena Timoris Amor But I humbly pray your Lordships to examine with us the grounds of this your sollicitude and fear which grounds needs must be laid either upon the words of the Petition or the intention of the Petitioners Upon the words there is no possibility to lay them for therein is no mention of the Soveraign power And were the words doubtfull as thus we pray the like things be not done hereafter under pretext of your Majesties Soveraign power yet in respect of the Protestations preceeding concommitant and subsequent to the Petition such doubtfull words ought reasonably to be interpreted onely of such Soveraign power as was not applyable to the cases wherein it was exercised and of such Soveraign power as should be justly practised But there are no such doubtfull words and therefore it followeth that your Lordships fear and sollicitude must be grounded upon the intention of the Petitioners Now your Lordships well know that the House of Commons is not ignorant that in a Session of Parliament though it continue as many weeks as this hath done dayes yet there is nothing prius posterius but all things are held and taken as done at one time If so what a strange collection was this that at the same time the House of Commons should oblige themselves by a fearfull adjuration to assist and defend all Priviledges and Prerogatives belonging to the King and at the same time by a Petition cautiously conveyed indeavour or intend to divest and deprive the King of some Prerogatives belonging to his Crown If therefore such fear and sollicitude can neither be grounded upon the words of the Petition nor intention of the Petitioners I humbly pray your Lordships to lay them aside as we do believe that the proposition of this addition from your Lordships was not onely excuseable but commendable as proceeding from your love so now having heard
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
In this the Councel said it will not extend to make him a Bishop upon the point of Election but upon the point of Confirmation onely which maketh him punishable if he execute any thing concerning the Bishoprick Sir Hen. Martin saith The exception making void the Confirmation doth in Law work also upon the Election Doctor Steward saith The point of setting to of the Advocates hand is but matter of Form in the Court no matter of Law Sir Henry Martin saith he will endeavour himself to give the House as full satisfaction and he will speak without relation to the Kings Right and Laws of the Realm The Proclamation by the Common Law should not be at Bow Church but at the Cathedral Church of the Diocess where the Bishop is to be elected and the Dean and Charter of that Diocess is to except and not every one that will The Argument is endless and to alter a course so long settled I conceive it is plain the King and the Law have power to deprive him of his Bishopprick if he deserves the same I think therefore it were good to decline this dispute for the present and to proceed to remove him which we are allowed Tuseday 10. A Bill for Ordering the Government and Plantation of the Summer Islands A Bill to restrain some abuses in Ministers and Magistrates Mr. Rowles complaineth that since his last complaint of the breach of the liberties of this House his Ware-house hath been locked up by one Massey a Pursevant and that yesterday he was called forth from the Committee in the Exchequer-chamber and served with a Subpena to appear in Star-chamber but that since he received a Letter from Mr. Attorney that it was a mistake The Subpena was read but the Letter not suffered to be read Sir Robert Phillips YOu see we are made the Subject to scorn and contempt I conceive this to be a bone thrown by those that have drawn a cloud over our sun our Religion to divert or interrupt us in the prosecution of them I desire the Messenger may be sent for and examined by what procurement this Subpena was taken forth for if we find not out those that throw these scorns upon us it is in vain to sit here Mr. Chancellor of the Dutchie THis proceeds from some great error for I will assure you this never proceeded from King nor Councel I therefore desire it may be searched to the bottom for be confident neither King nor Councel have cast in this as a bone Mr. Selden THis is not to be reckoned an Error for questionless this is to affront us and our own Liberties is the cause of this It is Ordered that Shemington the Messenger that served the Subpena be presently sent for to the House A Committee of six are appointed to see the information in Star-chamber and to examin the same and by whom the same was put in and they have power to sent for persons or records that may inform them A general Order agreed on That all the Committees that have power to send for parties shall have power to command any of them as they shall think fit to attend the House at such times as they shall think fit The priviledge of the Merchants that are Planters here may be taken into consideration by this Committee concerning the information in Star-chamber Sheriff Acton called into the Barre as a Delinquent upon his knees saith if he have erred it is through want of memorie and ignorance for he intended not the least dislike or distaste to any Member of the House Mr. Long moved he might be sent to the Tower Sir Francis Seymour THat he may now be referred back to the Committee to be re-examined if then he deal not clearly this House may proceed to further punishment Mr. Selden I Cannot remember when we did commit a Sheriff of London but I remember when the House did commit both the Sheriffs of London to the Tower for an abuse of less nature onely for countenancing of a Serjeant in an Arrest on a Member of Parliament though they did acknowledge their faults at the Barre which this man hath not yet done the Serjeant was sent to Little-ease the person at whose suit he was Arrested was committed to the Fleet and both the Sheriffs to the Tower Mr. Kirton I Came into this House with as good an heart to this man as any man for I was spoken to to stand for him as I came in and I promised to do what favour I could but if he were my brother he should to the Tower Mr. Littleton YOu see the affronts by books by preaching by rumors by being dayly sued with Proces that are put upon us that we are become but a meer Scare-crow the neglect of our dutie is the cause of this it is high time to remedie this or it is in vain to sit here The Sheriff is again called in to the Barre on his knees and is sentenced to the Tower Sir Ben. Ruddiard THere be diverse Recantations Submissions and Sentences remaining on Record in both Universities against Arminianisme that concerning any thing that may conduce to our end the Speakers Letter may be sent to the Vicechancellor for those Records which is Ordered It is Ordered that Worsnam Daws and â—armarthen are to be at the Barre upon Fryday Wednesday 11. MAster Selden reported concerning the Process of the Merchants the Coppie of the Bill brought in and read that the Merchants did Plot Practice and Combine together against the peace of the Kingdom This being conceived to be a business incident to Tonnage and Poundage is Ordered to be referred till to Morrow morning Mr. Selden THat a Report shall be made to morrow of the Examination of the Complaints of the Merchants and the information in the Exchequer may also be brought which was also Ordered Ordered That in respect the Term ends to Morrow and the Assizes is to follow and diverse Members Lawyers may be gone down it is Ordered that none shall be gone without leave of the House It is alsâ— Ordered That the Speakers Letter be sent for Sir Edward Cook At the Committee for Religion MAster Walter delivered a Petition of the Book-sellers and Printers in complaint of the restraint of books written against Poperie and Arminianisme and the contrarie allowed of by the onely means of the Bishop of London that diverse of them have been so Pursevanted for printing of Orthodox books that the licensing of books is now onely restrained to the Bishop of London and his Chaplains One of the Printers said he tendred diverse books one called The golden Spur to the heavenly Race That Turner one of the Bishop of Londons Chaplains said That if he would put out the point That a man may be certain of his Salvation he would license the same notwithstanding he put out that point yet he could not get the same licensed Mr. Selden The refusing the Licensing of books is no crime but the
Licensing of bad books is a crime or the refusing to license books because then writ against Poperie or Arminianisme is a crime There is no Law to prevent the printing of any book in England onely a Decree in Star-chamber therefore that a man should be sued and imprisoned and his goods taken from him is a great Invasion on the Libertie of the Subject moveth a Law to be made upon this This is referred to a select Committee to examin Mr. Shervile REported concerning the Pardons that they have examined Doctor Sibthorp and Cosens Pardons Sibthorp solicited his own Pardon and said he would get the Bishop of Winchester to get the Kings hand to it It is evident that the Bishop of Winchester got the Kings hand to Sibthorp and Cosens Pardons and also Mountagues Pardon was promised by him That Doctor Manwering solicited his own Pardon and the Bishop of Wincâ—ester got the Kings hand to it It is likewise said the Pardons were all drawn by Mr. Attorney before there was any Warrant Mr. Cromwell saith he had by relation from one Doctor Beard that Beard said Doctor Allablaster had preached flat Poperie at Pauls Cross the Bishop of Winchester commanded him as he was his Diocesan that he should preach nothing to the contrarie Sir Robert Philips saith One Doctor Marshall will relate as much said to him by the Bishop of Winchester as the Bishop said to Doctor Moor. Mr. Kirtoâ— That Doctor Marshall and Doctor Beard may be sent for This Bishop though he hath leapt through many Bishopricks yet he hath leâ—t Poperie behind him That Cosens frequenting the Printing-house hath caused the Book of Common-Prayer to be new printed and hath changed the word Minister into Priest and hath put out in another place the word Elect thus Cosens and his Lord go hand in hand Sir Miles Fleetwood saith We are to give Mountague his Charge and by his books charge him with Schisme in error of Doctrine Faction in point of State Thirdly matter of Aggravation Sir Walter Earl OUi color albus erat nunc est contrarius albo saith Doctor White hath sold his Orthodox books and bought Jesuiticall books moves that Bishop White may go arm in arm with Mountague Ordered a select Committee to be named to digest these things that have been alreadie agitated concerning the Innovation of Religion the Cause of the Innovation and the Remedie Thursday 12. THe Sheriff of London upon his submission at the Barre is released his imprisonment in the Tower Sir Iohn Elliot made the Report for the Committee in the examination of the complaint of Merchants and delivered the Orders and Injunctions into the Exchequer At a great Committee for Tonnage and Poundage Mr. SHERVIL in the Chair MAster Waller delivered a Petition from Chambers Felke and Gilborn in complaint of an information against them in the Star-chamber about Tonnage and Poundage that by the restraint of their goods they are like to be undone Sir Iohn Elliot THe Merchants are not onely kept from their goods by Customers but by a pretended Justice in a Court of Justice as the Exchequer I conceive if the Judges of that Court had their understanding enlightened of their error by this House they would reform the same and thereby the Merchants suddenly come to their goods Mr. Transtort conceiveth this to be a difficult way for us to go Mr. Corington Let it be done which way the House shall think fit but I conceive the Merchants shall have their goods before we can think of the Bill Kings ought not by the Law of God thus to oppress their Subjects I know we have a good King and this is the advice of his wicked Ministers but there is nothing can be more dishonorable unto him Mr. Stroud That it may be Voted That the Merchants may have their goods before we enter on the Bill Chancellor of the Dutchie I shall speak my opinion because I know not whether I shall have libertie to speak or you to hear any more All the proceedings of the King and his Ministers was to keep the Question safe untill this House should meet and you shall find the proceedings of the Chequer were Legal and thus much not knowing whether I shall have a days libertie to speak any more here again Mr. Thesaurer There is none here but would think it a hard thing that a Possession should be taken from us without any order for Sequestration that therefore it was not to be suffered that these few men should so unjustly disturb the Government of the State Desires there may be no interruption but that we may proceed to settle the Tonnage Mr. Corington I hope we may speak here as I hope we may speak in heaven and do our duties and let no fear divert us Mr. Waller It is not so few as 500 Merchants are threatened in this Sir Robert Phillips moveth we may go to the King and satisfie him of these interruptions Mr. Noy We cannot safely give unless we be in possession and proceedings in the Exchequer nullified and information in the Star-chamber and the Annexion to the Petition of Right and other Records I will not give my voice to this untill these things be made void for it will not be a Guift but a Confirmation Neither will I give unless these interruptions be removed and a Declaration in the Bill That the King hath no Right but by our free guift If it will not be accepted as is fit for us to give it we cannot help it If it be the Kings alreadie as by these new Records then we need not to give it Mr. Selden secondeth the Motion of sending a Message to the Exchequer declareth a President of a Message sent into the Chancerie for stay of proceedings in a Cause and it was obtained and whatsoever the Judges return it cannot prejudice us the Law speaks by Record and if these Records remain it will to posteritie explain the Law Mr. Littleton For the Right there is no Lawyer so ignorant to conceive it nor any Judge in the Land to affirm it is against giving to the King or going on the Bill In this case by the Law a man cannot be put to a Petition of Right but shall recover without Right Ordered that a Message shall be sent to the Court of the Exchequer That whereas certain goods of the Merchants have been stayed by Injunction from that Court by a false Affidavit and that the Customers that made the Affidavit have upon examination of this House confessed that the goods were stayed onely for duties contained in the book of Rates that therefore that Court would make void the orders and Affidavits in this business Friday 13. A Petition against one Burges a Priest who was here complained of the last Session some new Articles complained against him that he could not get a Copie of his Articles out of the house untill he was fain to get one counterfeit himself a Puritan to get the same and
other new misdemeanors He is Ordered to be sent for Sir Iohn Elliot A Motion for Priviledge of Merchants Order is That any man having a Complaint depending here in the mean time intimation shall be given to my Lord Keeper That no Attachment shall go forth against the Merchants Chancellor of the Dutchie reported the Message to the Chequer Court that the Treasurer and the Barons will forthwith take the same into consideration and return answer It is Ordered Mr. Secretarie Cook shall take care that intimation shall be given to the Citie about the Fast. Doctor More called in saith he was referred to the Bishop of Winchester to be censured for preaching a Sermon the Bishop said he had heard him preach and deliver many prettie passages against the Papists which pleased King Iames but he must not do so now That you have a brother that preacheth against Bowing at the high Altar or at the name of Iesus and that the Communion Tables stood as Tables in Ale-houses but he would have them to be set as High Altars Dr. Moor is to deliver these things in writing to Morrow morning At the Committee for Religion SIr William Bawstrod If we now speak not we may for ever hold our peace when besides the Queens Mass there are two other Masses dayly so that it is grown ordinarie with the out-facing Iesuits and common in discourse Will you go to Mass or have you been at Mass at Somerset-house there coming 500 at a time from Mass. Desires to know by what authoritie the Iesuits lately in Newgate were released Mr. Corington Doubts not but his Majesties intention was good in the Declaration lately published but I conceive it will be made use of onely to our disadvantage that therefore the Declaration made be taken into consideration Sir Richard Gravenor REports the proceedings of this House against Poperie the last Sessâ—â—â— and what fruits have been thereon Sir Rober Phillips If ever there were a necessitie of dealing plainly and freely this is the time There is an Admission of Priests and Iesuits as if it were in Spain or France thâ—s increase of Papists is by connivance of persons in Authoritie Nine hundred and fourtie persons in houses of Religion being English Irish and Scots in the Netherlands maintained by the Papists of England and of this I shall deliver the particulars that we may frame a Remonstrance to the King that unless there be some better performance of his Majesties late answers to so many Petitions our Religion will be past recoverie Mr. Corington That the Papists by Act of Parliament or Laws of State may be removed from their offices which we have just cause to suspect Mr. Selden moveth that these things may be debated in order and first for releasing the Iesuits that were arraigned at Newgate whereof one was condemned they were 10 in number which were Priests who had begun a Colledge here in London about Clarkenwell and these men could not attempt these acts of boldness But they must have great countenancers Secretarie Cook THat a Minister who is said to be himself having notice of these 10 and this Colledge intended to be kept at Clarkenwell That it is plain there was a place appointed for this Colledge and Orders and Relicts prepared This Minister made the King acquainted with it and I should not do my dutie if I should not declare how much his Majestie was affected with it His Majestie refers it to the special care of the Lords of the Councell who examining the same sent these ten persons to Newgate and gave order to Mr. Attorney to prosecute the Law against them That this Colledge was first at Eâ—monton removed from thence to Camerwell and thence to Clerkenwell Ordered That all the Knights and Burgesses of the House shall to Morrow morning declare their knowledge what Letters or other hinderances have been for the staying of proceedings against Recusants Mr. Long a Justice of Peace who is said to understand much in the business of the Colledge of Iesuits at Clarkenwell is sent for and examined saith by the appointment of Mr. Secretarie Cook he apprehended these persons and took their Examinations and saith further he heard they were delivered out of Newgate by order from Mr. Attorney That Mr. Middlemore or General Soliciter for the Papists hired this house for the Lord of Shrewsbâ—rie a Papist and that there are diverse books of account of payments and disbursments to the value of 300 pounds per Annum with diverse Recusants names who allowed towards the maitenance of this Colledge and these books and papers are in the hand of Mr. Secretary Cook Secretarie Cook saith he cannot so amply declare the truth of the proceedings herein untill he have leave from his Majestie One Cross a Pursevant is to be examined upon oath who declareth he could discover diverse stoppages of the execution of the Laws against Recusants Saturday 14. A Complaint against the Lord Lambert a Baron of Ireland and a Member of this House who being a Colonel of Souldiers in Midd. hath imposed Four pence upon every Souldier towards his Officers Charges and the Petitioner for refusing to pay was first set in the Stocks and after by the Lord Lambert committed to a Publick prison It is Ordered that the Lord Lambert shall be sent for to answer this Sir Iohn Epsley desireth leave to answer a Complaint that is in the Lords house of Parliament against him Mr. Selden That the use was and citeth Presidents that no Commander could be called to the Lords House but it will trench much to the disadvantage of the Priviledge of this House and untill 18. Iac. there was never President to the contrarie That therefore this may be considered of by a select Committee Ordered that Sir Iohn Epsley shall not have leave Mr. Chancellor of the Dutchie stifly secondeth Mr. Seldens Motion Mr. Secretarie Cook I am as carefull to maintain a good correspondencie with the Lords as any man but connivances in this kind may overthrow the fundamental Rights and Liberties of this House Let it therefore seriously be considered of for this not onely concerneth the Right of this House but the Libertie of the Common-wealth Ordered a select Committee shall be appointed to consider this Mr. Chancellor of the Dutchie delivereth an answer in writing from the Lord Chancellor Trer. and Barons to the Message sent to them Mr. Kirton WE looked for Satisfaction but now you see a Justification of their actions I therefore desire now we may proceed to consider of their proceedings and whether ever the Court of Exchequer held this course before for staying of Replevies and whether these have been done by the Regal Prerogative of the King in his Court of Exchequer It is Ordered that a select Committee of Lawyers Chequer-men shall take this into consideration Mr. Selden We have delayed the proceeding with the Customers expecting some good success from the Chequer but finding it otherwise I desire the Customers may be called
the Court. Ordered Mr. Long to be here on Thurseday Morning Ordered That the Justices about this time shall be required to deliver in the names of all Recusants remaining about the Town and their conditions and what Countrey they be It is Moved That the Gentlemen of the Inns of Court and of the Chancerie may give in their knowledge what Recusants are there Sir Iohn Stanhope That the Court may give in the names of Recusants there likewise by what Warrant these be about the Town and what publick charge of Office any of these persons have also what Priests and Iesuites are in any prison in London for they have libertie sometimes to go five miles to say Mass. Wednesday 18. A Publick Fast was kept by this House in Westminster where were three Sermons Thursday 19. MAster Dawes one of the Customers called in to answer the point of Priviledge in taking Mr. Rolles his goods being a Member of this House saith he took Mr. Rolles goods by virtue of a Commission under the great Seal and other warrants remaining in the hands of Sir Iohn Elliot That he knew Mr. Rolles to be a Parliament man and Mr. Rolles demanded his Priviledge but he did understand his Priviledge to extend onely to his person not to his goods Mr. Dawes further saith he took those goods for such duties as were due in King Iames his time and that the King sent for him on Saturday last and commanded him to make no other answer Mr. Carmarthen another Customer called in saith he knew Mr. Rolles to be a Parliament man and that he told Mr. Rolles he did not find any Parliament man exempted in their Commission and if all the bodie of this House were in him he would not deliver the goods if he said he said he would not it was because he could not Mr. Wansforth That the delinquence of these men may be declined for the present and that we may first go to the King by way of Remonstrance considering the matter from whence this did arise If it were a single Priviledge it were easily determined Mr. Selden If there be any near the King that misâ—â—â—sents our actions let the curse light on them and not on us And 〈◊〉 it it is high time to right our selves and untill we vindicate our selves in this it will be in vain to sit here Sir Nathaniel Ritch moveth not to proceed in this untill it be by a select Committee considered in regard the King himself gave order to stay these goods though the goods of a Parliament man Sir Iohn Eliot The heart-bloud of the Libertie of the Common-wealth receiveth its life from the Priviledge of this House Resolved by question that this shall be presently taken into consideration And being conceived a business of great consequence It is Ordered That the House shall be dissolved into a Committee for the more freedome of debate Mr. Harbert in the Chair of that Committee Friday 20. A Petition of Complaint of a Conspiracie against a mans life by the Lord Deputie of Ireland and others to get the estate of the Petitioner to their own use Which is referred to the Committee for Justice Sir Iohn Worsnam another of the Customers called in saith he was commanded from the King that the goods were taken for duties and no more that he was sought to to Farm the Customs and told the King being sent for to him that he was not willing to deal therein untill the Parliament had granted the same Mr. Selden Conceiveth the case of these three Customers do differ in the degrees of their offences First for Sir Iohn Worsnam whatever he saith here he hath often confessed the goods were taken for Tonnage and Poundage so that as he broke the Priviledge in taking the goods so likewise his swearing one thing and the contrarie plainly appeareth upon proof and his own confession Mr. Dawes his cause differeth onely in this Sir Iohn Worsnam is a Patentee and Dawes onely a sharer Mr. Carmarthens cause differeth in saying if all the Parliament were in him he would not deliver his goods Ordered that Worsnams case shall be first decided And first the point is Whether by the Lease Sir Iohn Worsnam having seised the goods hath interest or no or whether he be onely an accounter to the King or not Mr. Glanvile Here is a sum of money advanced a Lease granted for certain years a certain Rent reserved and though there be a covenant to these men that if there be less it shall be abated yet that cannot take away their interest The substance of the offences made by the Customers in the Exchequer is that the goods of the Merchants seised by them and remaining in the Kings Store-house were seised onely for duties to the King mentioned in a Commission under the Kings signet and that themselves the Customers had no interest nor pretence of interest Saturday 21. A Petition by Mr. Thomas Symons in further complaint of the Customers and the Two shillings Six pence upon the Currants granted to the Lord Arrundell which is referred to the Committee for Merchants Sir Robert Pye saith The Lord of Arrundell hath delivered in his Pattent to the King two months since At the Committee for Merchants MAster Littleton argued whether a Member of the House hath his goods priviledged upon a Prorogation being seised for the King All Priviledge is allowed for the good of the Common-wealth and the Parliament Priviledge is above any other the Parliament onely can decide Priviledge of Parliament not any other Judge or Court whatsoever That a man may not distrain for rem in Parliament time but for all arrears after the Parliament he may distrain he is not to be imployed in any action personal nor his goods to be seised in the Exchequer A Record and Act of Parliament by Petition that because the servant of a Member of the Parliament is in the Kings Royal protection that it might be High Treason to kill a Parliament man and the King answered affirmatively which made it a Law And for the Judges to determin priviledge of Parliament were to supersede the Law and make it void For the Prorogation the Priviledge stands good untill the day of Prorogation notwithstanding a Proclamation of a new Prorogation That the King is never so high in point of State as in the Parliament Citeth the case of Sir Robert Howard in High Commission All Priviledges unless in Felonie Treason or breach of Peace Sir Robert Phillips Thus you see how fast the Prerogative of the King doth trench on the Libertie of the Subject and how hardly recovered Citeth many Presidents wherein the goods of a Member of the Parliament were Priviledged from seizure in the Exchequer In 19 Eliz. it was resolved in Parliament that 20 days before and 20 days after was the time of Priviledge Chancellor of the Dutchie That in this debate we may tie our selves to point of Law and Authoritie not to point of Reason And conceiveth that