for they are not within this Statute and yet this Court doth it at pleasure But plainly by the Statute it self it appears that it meant only to the common writ for the preamble recites that the Sheriffs and other have taken and kept in prison persons detected of felony and let out to plevin such as were not reprisable to grieve the one party and to the gain of the other and forasmuch as before this time it was not determined what prisoners were reprisable which not but onely in certain cases were expressed therefore it is ordained c. Now this is no more but for direction of the keepers of the prisons for it leaves the matter to the discretion of the Judges whether bailable or no not of the Judges for when the Statute hath declared who are repleviable who are not as men outlawed have abjured the Realm Proves such as be taken in the manner breakers of prisons buâ—ners of houses makers of false money counter feiting of the Kings Seal and the like it is then ordained that if the Sheriff or any other let any go at large by surety that is not reprisable if he be Sheriff Constable or any other that hath the keeping of prisons and thereof be attainted he shall lose his office and fee for ever so that it extends to the common Goalers and keepers of prisons to direct them in what cases they shall let men to bail and in what cases not and that they shall not be Judges to whom to let to replevin and whom to keep in prison but it extends not to the Judges for if the makers of the Statute had meant them in it they should have put a pain upon them also So then I conclude upon these under your Lordships favour that as this case is there should have been a cause of the commitment expressed for these Gentlemen are brought hither by writ ad subjiciendum if they be charged and ad recipiendum if they be not charged and therefore in regard there is no charge against them whereupon they should be detained in prison any longer we desire that they may be bailed or discharged by your Lordship The Argument of Master Selden upon the Habeas corpus My Lords I am of Councell with Sir Edmond Hampden his case is the same with the other two Gentlemen I cannot hope to say much after that that hath been said yet if it shall please your Lordship I shall remember you of so much as is befallen my lot Sir Edmond Hampden is brought hither by a writ of Habeas corpus and the keeper of the Gate-house hath returned upon the writ that Sir Edmond Hampden is detained in prison per speciale mandatum Domini Regis mihi significatum per Warrantum duorum Privati Concilii dicti domini Regis and then he recites the warrants of the Lords of the Councell which is that they do will and require him to detain this Gentleman still in prison letting him know that his first imprisonment c. May it please your Lordship I shall humbly move you that this Gentleman may also be bailed for under favour my Lord there is no cause in the return why he should be any farther imprisoned and restrained of his liberty My Lord I shall say something to the form of the writ and of the return but very little to them both because there is a very little left for me to say My Lord to the form I say it expresseth nothing of the first caption and therefore it is insufficient I will adde one reason as hath been said the Habeas Corpus hath onely these words quod habeas corpus ejus una cum causa detensionis non captionis But my Lord because in all imprisonment there is a cause of caption and detention the caption is to be answered as well as the detention I have seen many writs of this nature and on them the caption is returned that they might see the time of the caption and thereby know whether the party should be delivered or no and that in regard of the length of his imprisonment The next exception I took to the form is that there is much incertainty in it so that no man can tell when the writ came to the keeper of the prison whether before the return or after for it appears not when the Kings command was for the commitment or the signification of the Councell came to him It is true that it appears that the warant was dated the seventh of November but when it came to the keeper of the prison that appears not at all and therefore as for want of mentioning the same time of the caption so for not expressing the same time when this warrant came I think the return is faulty in form and void And for apparent contradiction also the return is insufficient for that part of the return which is before the warrant it is said quod detentus est per speciale mandatum domini Regis the warrant of the Lords of the Councel the very syllables of that warrant are that the Lords of the Councell do will and require him still to detain him which is contrary to the first part of the return Besides my Lord the Lords themselves say in another place and passage of the warrant that the King commanded them to commit him and so it is their commitment so that upon the whole matter there appears to be a clear contradiction in the return and there being a contradiction in the return it is void Now my Lord I will speak a word or two to the matter of the return and that is touching the imprisonment per speciale mandatum domini Regis by the Lords of the Councell without any cause expressed and admitting of any or either of both of these to be the return I think that by the constant and settled Laws of this kingdome without which we have nothing no man can be justly imprisoned be either of them without a cause of the commitment expressed in the return My Lord in both the last Arguments the statutes have been mentioned and fully expressed yet I will adde a little to that which hath been said The statute of Magna Charta cap. 29. that statute if it were fully executed as it ought to be every man would enjoy his liberty better then he doth The Law saith expresly no Free-man shall be imprisoned without due processe of the Law out of the very body of this Act of Parliament besides the explanation of other statutes it appears Nullus liber homo capiatur vel imprisonetur nisi per legem terrae My Lord I know these words legem terrae do leave the question where it was if the interpretation of the Statute were not But I think under your Lordships favour there it must be intended by due course of Law to be either by presentment or by indictment My Lords if the meaning of these words Per legem terrae were but as we use to
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
his Majesty and so they put him upon designes that stand not with publick liberty that he commands what he lifts with Lives Goods and Religion and doth as he pleaseth and so they involve all true hearted English-men and Christians under the name of Puritans and so make their quarrel to be his Majesties which is treason of the highest quality Tuesday 27. A Petition was exhibited concerning one Lewis that said about the 25 of December The Devill take the Parliament which was avowed by 2 witnesses It was resolved to be an offence to the Parliament and it was ordered he should be sent for SIr Nathaniel Rich tendered a Petition touching the Fast which was agreed to be preferred to the King It was ordered that a conference should be desired with the Lords about this Petition who were desired to joyn with the lower House which was done accordingly THe King sent a Message by Secretary Cooke to this effect viz. That his Majesty understanding that the Remonstrance was called for to take away all question commanded me to deliver it to you but hopeth that you proceed with the Bill of Tonnage and Poundage and give precedence to that business and to give an end to further dispute between some of his Subjects or else he shall think his Speech that was with a good applause accepted had not that good effect which he expected But before his Messege there was a report made by Mr. Pym for a Committee for Religion where a motion was made about the Remonstrance the last Session concerning that part which toucheth Religion and the Clark answered that by command from the King he delivered it to the Lord Privy Seal and so the Committee proceeded no farther SIr Walter Earl replied to the Message The last part of the Message calls me up For point of precedency Religion challeâ—geth the precedence and the right of our best endeavors Vbi dolor ibi digitus I know justice and liberty is Gods cause but what will justice and liberty do when Popery and Arminianisme joyn hand in hand together to bring in a Spanish Tyranny under which those Laws and liberties must cease What hath been done for Religion since the last Session We know what declarations have been made what persons have been advanced what truthes confirmed by all Authority of Church Councels and King For my part I will forgo my life and estate and liberty rather than my Religion And I dare boldly affirm that never was more corruption between Religion and matters of state than is at this present time Humana consilia castigantur ubi coelestibus se praeferunt Let us hold our selves to method and that God that carried us through so many difficulties the last Parliament Session will not be wanting to us now Mr. Corrington LEt us not do Gods work negligently We receive his Majesties Message withall duty for our proceedings let us so proceed as it may soonest conduce to his Majesties desire Unity concerns all of us the unity of this house is sweet especially in Gods cause let us cry and cry again for this let us be resolved into a Committee and presently fall to debate thereof UPon Mr. Pyms motion It was ordered that Religion should have the precedency and that the particulars before named should be taken into consideration by a Committee of the whole House Wensday 28. Secretary COOKE delivered another Message from his Majesty HIs Majesty upon occasion of dispute in this House about Tonnage and Poundage was pleased to make a gracious declaration wherein he commended unto us the speedy finishing thereof and to give precedency thereto and since his Majesty understanding the preferring the Cause of Religion his Majesty expected rather thanks than a Remonstrance yet he doth not interrupt you so you do not intrench upon that which doth not belong unto you But his Majesty still commanded me to tell you that he expects precedency in Tonnage and Poundage assuring himself he hath given no occasion to put it back and so you will not put it off To this Mr. Long replied I Cannot see but with much sorrow how we are still presed to this point I hoped those near the Chair would have truly informed his Majesty of our good intentions but we see how unhappy we are still some about his Majesty makes him diffident of us Sir Thomas Edmonds I am sorry this House hath given occasion of so many Messages about Tonnage and Poundage after his Majesty hath given us a full satisfaction You may perceive his Majesty is sensible of the neglect of his business we that know this should not discharge our duties to you if we should not perswade you to that course which should procure his Majesties good opinion of you Your selves are witnesses how industrious his Majesty was to procure you gracious Laws in his Fathers time and since that what enlargement he hath made of our liberties and yet still we give him cause to repent him of the good he hath done Consider how dangerous it is to Alienate his Majesties heart from Parliamens Mr. Corington When men speak here of neglect of duty to his Majesty let them know we know no such thing nor what they mean I see not how we do neglect the same I see it is all our hearts to expedite the Bill of Tonnage and Poundage in due time our business is still put back by these Messages and the business in hand is of God and his Majesty Things are certainly amiss and every one sees it and wo be to us if we present them not to his Majesty Sir Iohn Elliot His Speech to the same effect IT was ordered that a Committee should be appointed to pen an Answer to his Majesties Message and shew that it is their resolution to give him all expeditions in his service and that they hold it fit not onely to give him thanks but further to shew what perill we are in and that Tonnage is their own gift and it is to arise from themselves and that they intend not to enter into any thing that belongs not unto themselves Thursday 29. THe former part of the day was spent in dilating of the transportation of corn and victuals into Spain and it was ordered that Message should be sent to his Majesty that it is now evident that diverse ships are bound for Spain and to desire a stay of them After the House sat at a Committee about Religion after long debate it was resolved by the Commons-House as before Friday 30. THe House received an answer from his Majesty touching the Ships which was that he would consider of it and send them an answer in due time Also this day a Committee of the Lower-House went to the King in the Privy-Chamber with the Petition for the Fast and the Arch-Bishop of York after he had made a short Speech presented it to his Majesty in the name of both Houses To which the King answered Munday Febr. 2. THe Lower-House presented a declaration
to his Majesty in answer to two Messages sent by him Tuesday 3. SEcretary Cook reported that himself and the rest of the Committees attended his Majesty upon Munday and he said For my part I have used all diligence to do all the commands of my Master and this House and I find that some exceptions have been taken at some words by me used when I delivered the Bill of Tonnage and Poundage Indeed I used many Arguments in speaking of his Majesty I said it much concerned him and that his Majesty much desired it and I required it in his name which I did not intend but to avoide dispute and I said not this was an ordinary revenue but this Tonnage was the means to inable his Majesty to set his Fleet to sea After this Apology he read his Majesties answer to the Petition of the Lower-House Sir Iohn Elliot Mr. Speaker I confess this hath given great satisfaction for present desires and future hopes and howsoever I find the misinterpretation of some and the danger of Religion yet I find his Majesties ears open and if these things be thus as we see that then he is not rightly counselled I am confident we shall render his Majesty an account of what he expecteth but Sir I apprehend a difference between his Majesties expression and the expression of his Ministers First Sir that Bill was here tendered in his Majesties name and now we find his Majesty disavows it that he did it not What wrong is this done to his Majesty and to this House to press things in his Soveraigns name to the prejudice and distraction of us all I think him not worthy to sit in this House Mr. Speaker THis Honorable person did explain himself that he did not press it in his Majesties name but onely did commend it to your considerations Secretary Cook I Said that in regard of the difference between his Majestie and his Subjects my desire was to accommodate it Sir Humfrey May IF ye be too quick to except against the ministers of his Majestie that serve his Majestie and this House it will discourage and stop our mouthes whose service ye dayly commend At the Committee for Religion Sir Iohn Elliot FOr the way of our proceedings to shew the weight and unitie thereof to all the world we have laid a good foundation I collect out of the particulars about the Article of Lambeth that the difference was in the manner of the use of them but all did profess the truth and worth of them at which unitie in all our hearts we may all rejoyce whereas the enemie abroad gives out that we are at faction amongst our selves whereas all of us took them granted not onely to make use of them to oppose our adversaries but also for the worth of them Let us boldly relie on the ground alreadie laid let us look to them that offended us in this our truth which I hope we shall live and die in if there be cause Are there Arminians for so they are called look to this see what degree they creep let us observe their Books and Sermons let us strike at them and make our charge at them and vindicate our truth that seems yet obscure and if any justifie themselves in their new opinions let us deal with them and then testimonie will be needfull our truth is clear our proofs will be many and if these parties will dare to defend themselves then seek for proof The Remonstrance of the last Parliament was read in part about Arminians and also his Majesties Declaration printed with the book of Articles and the Proclamation against Mountague Wednesday Febr. 4. A Bill preferred that no Clergie-man shall be in Commission for Peace except Bishops Deans Vice-Chancellors of both Universities c. within their severall jurisdictions Doctor Reeves which sat as Judge upon the Conservation of Mr. Mountague called in and examined saith That Objections were offered Ore tenus and after offered in writing but he rejected the same because they had not an advocates hand and upon the whole saith he durst neither admit of any objections for the present nor give time for the same upon pain of premunire by the Statute Doctor Talbot and Doctor Steward are assigned for Councel with Mr. Iones the Printer in his Cause Mr. Selden THe point considerable is not whether Doctor Reeves hath done well or ill for he did but as any discreet man would have done but the point is now whether Mr. Mountague be a lawfull Bishop or no. Neither is the question to be debated whether the exceptions be lawfull or no but being legal of what force they be to hinder the confirmation of the Bishop All which is agreed and Doctor Reeves for the present discharged A Petition is preferred by Thomas Ogle against Doctor Cosens with Articles annexed thereunto tending to the introducing of Popish Doctrine and Popish Ceremonies into the Cathedral Church at Durham Sir Euball Thelwall THere were two affidavits that Cosens should say That the King had no more to do with Religion then his Horse-keeper and that by the appointment of Mr. Attorney these affidavits were taken and he said to the end a Bill in Star-chamber might be filed against him But since Cosens hath his pardon and the King was told it was onely raised by the spleen of some Puritane Mr. Shervile DEsired that search might be made for the pardons There were four pardons under the Great Seal granted to Mountague Sibthorpe Cosens and Manwering it pardons all Treasons Premunires Errors erronious Opinions and all false Doctrines scandalous Speeches or Books and all offences by word and deed all corrupt contracts c. Treason to the person of the King and Witchcraft onely excepted Mr. Rousse HEre are four persons that have made the Common-wealth sick thus by the Phisick you see the Diseases but I conceive there is other physick to be ministered to those rotten Members for questionless this is not to be cured but by cutting off those Members Mr. Kirton MAster Kirton moved that the procurers of these Pardons might be enquired after that it might be seen who gave order to the Signet for the going forth of those Pardons for questionless there are Cosens at Court too Sir Robert Philips IF ever any was abused it was our King in granting those pardons we would save the time of doing any thing if this be not searched to the bottom The goodness of our King is much abused I desire the Attorney may give account by what Warrant he drew these pardons so shall we find out those that misled the King to the heart-grief of us all It is high time to find out all these things A Committee was hereupon named to enquire who have been the Solicitors and Procurers of these pardons Sir Edward Giles I Know not what prevention may happen in these for questionless the devil of hell hath his hand in it Therefore presently let us send for Mr. Attorney Which was Ordered Sir
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
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
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
Person that committed the Prisoner was understood for the Causâ— captionis or Causâ— detentionis but onely the reason why that Power or Person committed the Prisoner as also in common speech if a man ask why and for what cause a man stands committed the answer is not that such a one committed him but his offence or some other cause is understood in the question and is to be shewed in the Answer But to say that such an one committed the Prisoner is an answer to the question who committed him and not why or for what cause he stands committed Then for that of the Coppy of the Report of 13. Iac. shewed forth by M r. Attorney it was answered That the Report it self which had been before seen and perused among many other things at a Committee made by the House was of sleight or no Authority for that it was taken by one that was at that time a young Student onely and was a Reporter in the Kings-bench and there was not any other Report to be found that agreed with it Secondly although the Reports of young Students when they take the words of Judges as they fall from their mouth at the Bench and in the Person and form as they are spoken may be of good credit Yet in this Case there was not one word so reported but in truth there being three Cases a time in the Kings-bench one Ruswell and one Allen and one Saltonstall every of which had something of like nature in it the Student having been present in the Court made up the form of one Report or Case out of all those three in his own words and so put it into his book so that there is not a word in the Report but is framed according to the Students fancie as it is written and nothing is expressed in it as it came from the mouth of the Judges otherwise then his fancie directed him Thirdly there are in the Report plain falshoods of Matter of Fact which are to be attributed either to the Judges or to the Reporter It is most likely by all reason that they proceeded from the Reporters fault but however those Matters of falshood shew sufficiently that the credit of the rest is of slight value for the purpose It is said in the Report that Harecourt being committed by the Councel was bayled in 40. Eliz. upon a privy Seal or a Letter where as there was no such thing in truth And it is said there that no such kinde of Letters are filed there in any case whatsoever That resolution of the Judges in 34. is miscited there and in 36. of Queen Eliz. and it is said there that by that resolution a Prisoner returned to be committed by the command of the Councel might not at all be delivered by the Court whereas no such thing is comprehended in that resolution But that which is of most moment is that howsoever the truth of the report were yet the opinion of the Judges being sudden without any debate had of the case is of fleight moment For in difficult points especially the gravest and most learned men living may on the sudden let fall and that without disparragement to them such opinions as they may well and ought to change upon further enquiry and examination and full debate had before them and mature deliberation taken by them Now plainly in that case of the 13. Iacob there is not so much as pretence of any debate at Bar or Bench. All that is reported to have been is reported as spoken upon the sudden and can any man take such a sudden opinion to be of value against solemne debates and mature deliberation since had of the point and all circumstances belonging to it which have within this half year been so fully examined and searched into that it may well be affirm'd that the learned'st man whatsoever that hath now considered of it hath within that time or might have learned more reason of satisfaction in it then ever before he met with Therefore the sudden opinions of any Judge to the contrary is of no value here Which also is to be said of that opinion obviously delivered in the Commons House 18. Iac. as M r. Attorney objected out of the Journal book of the House But besides neither was the truth of that report of that opinion in the Journal any way acknowledged For it was said in behalf of the House of Commons that their Journals were for matter of order and resolutions of the House of such Authority as that they were as their Records but for any particular Mans opinion noted in any of them it was so far from being of any Authority with them that in truth no particular opinion is at all to be entered in them and that their Clerks offend when ever they do the contrary And to conclude no such opinion whatsover can be sufficient to weaken the clear Law comprehended in these resolutions of the House of Commons grounded upon so many Acts of Parliament so much reason of Common Law and so many Presidents of Record and the resolution of all the Judges of Englaâ—d and against which no Law written not one President not one reason hath been brought that makes any thing to the contrary And thus to this purpose ended the next day of the Conference desired by the Lords and had by a Committee of both Houses The Proceedings against the Earle of SUFFOLK 14. April 1628. MR. Kerton acquainted the House how that the Earle of Suffolk had said to some Gentlemen that M r. Selden had razed a Record and deserved to be hanged for going about to set division betwixt the King and his Subjects And being demanded to whom the words were spoken he was unwilling to name any till by question it was resolved he should nominate him He then named S r. Iohn Strangwaies who was unwilling to speak what he had heard from the Earle but being commanded by the House and resolved by question he confessed That upon Saturday last he being in the Committee Chamber of the Lords the Earle of Suffolk called him unto him and said Sir Iohn will you not hang Selden To whom he said for what The Earle replied By God he hath razed a Record and deserves to be hanged This the House took as a great injury done to the whole House M r. Selden being imployed by them in the conference with the Lords in the great cause concerning the Liberty of the Persons of the Subjects The House presently sent S r. Robert Philips with a message to the Lords to this effect He expressed the great care the Commons had upon all occasions to maintain all mutual respect and correspondency betwixt both Houses Then he informed them of a great injury done by the Earle of Suffolk to the whole house and to M r. Selden a particuler Member thereof who by their Command had been imployed in the late conference with their Lordships That the House was very sensible thereof and
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
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