and Southcot Justices That offences committed in Parliament may be punished out of Parliament And 3 Ed. 3.19 it is good Law And it is usual neer the end of Parliaments to set some petty punishment upon offenders in Parliament to prevent other Courts And I have seen a Roll in this Court in 6 H. 6. where judgment was given in a writ of annuity in Ireland and afterwards the said judgment was reversed in Parliament in Ireland upon which judgment Writ of Error was brought in this Court and reversed Hide Chief Justice to the same intent No new matter hath been offered to us now by them that argue for the Defendants but the same Reasons and Authorities in substance which were objected before all the Justices of England and Barons of the Exchequer at Sergeants-Inn in Fleet-street upon an Information in the Star-Chamber for the same matter At which time after great deliberation it was resolved by all of them That an offence committed in Parliament that being ended may be punished out of Parliament And no Court more apt for that purpose then this Court in which we are and it cannot be punished in a future Parliament because it cannot take notice of matters done in a foregoing Parliament As to that that was said That an Inferiour Court cannot meddle with matters done in a Superior True it is That an Inferior Court cannot meddle with judgments of a Superior Court but if the particular members of a Superiour Court offend they are oft-times punishable in an Inferior Court As if a Judg shall commit a capital offence in this Court he may be arraigned thereof at Newgate 3 E. 3.19 and 1 Mar. which have been cited over-rule this case Therefore Whitlock accordingly 1. I say in this Case Nihil dictum quod non dictum prius 2. That all the Judges of England have resolved this very point 3. That now we are but upon the brink and skirts of the Cause for it is not now in Question if these be offences or no or if true or false but only if this Court have jurisdiction But it hath been objected That the offence is not capital therefore it is not examinable in this Court But though it be not capital yet it is criminal for it is sowing of sedition to the destruction of the Commonwealth The Question now is not between us that are Judges of this Court and the Parliament or between the King and the Parliament but between some private Members of the House of Commons and the King himself for here the King himself questions them for those offences as well he may In every Commonwealth there is one supereminent Power which is not subject to be questioned by any other and that is the King in this Commonwealth who as Bracton saith solum Deum habet ultorem But no other within the Realm hath this Priviledge It is true that that which is done in Parliament by consent of all the house shall not be questioned elsewhere but if any private Members exuunt personas judicum induunt malefacientium personas sunt seditiosi is there such Sanctimony in the place that they may not be questioned for it elsewhere The Bishop of Ross as the Case hath been put being Embassadour here practised matters against the State And it was resolved That although Legatus sit Rex in alieno solo yet when he goes out of the bounds of his Office and complots with Traytors in this Kingdom that he shall be punished as an offender here A Minister hath a great Priviledge when he is in the Pulpit but yet if in the Pulpit he utter speeches which are scandalous to the State he is punishable so in this Case when a Burgess of Parliament becomes mutinous he shall not have the Priviledge of Parliament In my opinion the Realm cannot consist without Parliaments but the behaviour of Parliament-men ought to be Parliamentary No outragious speeches were ever used against a great Minister of State in Parliament which have not been punished If a Judge of this Court utter scandalous speeches to the State he may be questioned for them before Commissioners of Oyer and Terminer because this is no judicial act of the Court. But it hath been objected That we cannot examine Acts done by a higher Power To this I put this Case When a Peer of the Realm is arraigned of Treason we are not his Judges but the high Steward and he shall be tryed by his Peers But if errour be committed in this proceeding that shall be reversed by errour in this Court for that which we do is Coram ipso Rege It hath been objected That the Parliament-Law differs from the Law by which we judge in this Court in sundry Cases And for the instance which hath been made That by the Statute none ought to be chosen Burgesse of a Town in which he doth not inhabit but that the usage of Parliament is contrary But if Information be brought upon the said Statute against such a Burgess I think that the Statute is a good warrant for us to give judgement against him And it hath been objected That there is no President in this matter But there are sundry Presidents by which it appears that the Parliament hath transmitted matters to this Court as 2 R. 2. there being a question between a great Peer and a Bishop it was transmitted to this Court being for matter of behaviour and although the Judges of this Court are but inferiour men yet the Court is higher for it appears by the 11 Eliz. Dy. That the Earl Marshal of England is an Officer of this Court and it is always admitted in Parliament That the priviledges of Parliament hold not in three Cases to wit in case of Treason secondly in case of Felony and in suit for the peace and the last is our very case Therefore c. Crook argued to the same intent but I did not well hear him he said That these offences ought to be punished in the Court or no where and all manner off offences which are against the Crown are examinable in this Court It hath been objected That by this means none will adventure to make his complaints in Parliament That is not so for he may complain in a Parliamentary course but not falsely and unlawfully as here is pretended for that which is unlawfully cannot be in a Parliamentary course It hath been objected That the Parliament is a higher Court then this is And it is true But every Member of Parliament is not a Court and if he commit offence he is punishable here Our Court is a Court of high jurisdiction it cannot take cognizance of real Pleas but if a real Plea comes by Error in this Court it shall never be transmitted But this Court may award a grand Cape and other Process usual in real Actions But of all capital and criminal causes we are originally competent Judges and by consequence of this matter But I am not
detract from the Religion here established The People of England having yet in memory the intended Cruelty of 88. and hating the Popish Religion generally loathed this Match and would have bought it off at the dearest rate and what they durst opposed it by speeches counsels wishes prayers but if any one spake lowder then his fellows he was soon put to silence disgrac'd and cross'd in Court-preferments when as in Spain and Flanders Books were penned and Pictures printed to disgrace the King and State For which the English Ambassadors sought satisfaction but in vain The Roman Catholicks desired the Match above measure hoping for a moderation of Fines and Laws perhaps a Toleration yea a total Restauration of their Religion for they gained more and more Indulgence by the long-spun Treaty The Articles of Religion were long hammered upon the Spanish Anvil inlarged and multiplied by new Demands without end The Conde Gondomar an active subtil Instrument to serve his Masters ends neglected no occasion tending thereunto which he mainly shewed in the particular of Sir Walter Rawleigh wherein he put forth all his Strength to destroy him being one of the last Sea-Commanders then living bred under Queen Elizabeth and by her flesh'd in Spanish blood and ruin He did first under-work his Voyage to Guienna which seemed to threaten loss and danger to the spreading power of Spain in the West-Indies and after his return with misfortune he pursued him to death In the beginning of the Kings Reign this Gentleman with others was arraigned and condemned for Treason 't was a dark kinde of Treason and the vail is still upon it The King had ground enough to shew mercy which some of that condemned party obtained After many years imprisonment Sir Walter Rawleigh desirous of liberty and action propounded an American voyage upon the assurance of gaining a Mine of Gold in Guienna The King hearkned to him and gave him power to set forth Ships and Men for that Service but commanded him upon his Allegiance to give under his hand the number of his Men the burden and strength of his Ships together with the Country and River which he was to enter All this was done and came so timely to Gondomars knowledge that Advertisement was sent to Spain and thence to the Indies before this English Fleet departed out of the Thames The Action proved unfortunate and the Mine was inaccessible the Spaniards at St. Thomas opposed their passage up the River and this engaged them to assault the Town which they took sacked and burnt Gondomar hereat incensed with a violent importunity demanded the reparation of this wrong And the Spanish Faction urged that this irruption might make a breach both of the Match and Peace with Spain The Kings fears kindled his wrath he disavowed the Action and to prevent the like for the future put forth a severe Proclamation Hereupon the storm of Passion ceased and Rawleigh knowing nothing but that he might appear in England with safety put in at Plimouth and was no sooner landed but by secret intimation understanding his danger sought to escape beyond Sea but was taken in the attempt brought to London and recommitted to the Tower and at length his life was offered up a Sacrifice for Spain but not upon such grounds as the Ambassador had designed for he desired a Judgment upon the pretended breach of Peace that by this occasion he might slily gain from the English an acknowledgment of his Masters right in those places and hereafter both stop their mouths and quench their heat and valor But the late voyage was not brought in question onely his former Condemnation was revived his Araignment at Winchester many years before was now laid open and he at the Kings Bench demanded why Execution should not be done upon him according to the Sentence therein pronounced Rawleigh answered That the Kings late Commission gave him a new life and vigor For he that hath power over the lives of others ought to be Master of his own This Plea was not accepted but the former Judgment took place and accordingly he lost his Head upon a Scaffold erected in the Old Pallace at Westminster Whilest Spain and England were thus closing the fire brake out in Germany between the States and Princes Protestant and the House of Austria These commotions involved and drew along the affairs of most Christian Princes especially of the two Potent Kings now in Treaty The Catholick Cause and the Lot of the House of Austria engaged the King of Spain who was the strongest Branch of that Stock King Iames must needs be drawn in both by common and particular Interest the Religion which he professed and the State of his Son in Law the Elector Palatine who became the principal part in those Wars and the most unfortunate It was an high business to the whole Christian World and the issue of it had main dependence upon the King of England being the Mightiest Prince of the Protestant Profession But this Kings proceedings were wholly governed by the unhappy Spanish Treaty The clouds gather thick in the German skie jealousies and discontents arise between the Catholicks and the Evangelicks or Lutherans of the Confession of Ausburge Both parties draw into Confederacies and hold Assemblies the one seeking by the advantage of power to incroach and get ground the other to stand their ground and hold their own The potency of the House of Austria a House devoted to the Persecution of the Reformed Religion became formidable The old Emperor Matthias declared his Cousin German the Archduke Ferdinand to be his adopted Son and Successor and caused him to be chosen and crowned King of Bohemia and Hungary yet reserving to himself the sole exercise of Kingly power during his life The Iesuits triumph in their hopes of King Ferdinand the Pope exhorted the Catholicks to keep a day of Jubilee and to implore aid of God for the Churches high occasions To answer this Festival the Elector of Saxony called to minde that it was then the Hundreth year compleat since Martin Luther opposed the Popes Indulgences which was the first beginning of Protestant Reformation Whereupon he ordained a Solemn Feast of three days for Thanksgiving and for Prayer to God to maintain in peace the purity of the Word and the right administration of the Sacraments The Professors of the Universities of Lipsick and Wittemberg the Imperial Towns of Franckford Worms and Noremburg yea the Calvinists also observed the same days of Jubilee against the Romish Church and much Gold and Silver was cast abroad in memory of Luther whom they called Blessed In these times the Emperor wrote Letters both to the Elector Palatine and to the Protestant Provinces and States of the Empire then assembled at Hilbrun advising them to acquiesce in what was done touching the designation of his adopted Son to the Empire to observe the Golden Bull the Magna Charta of the Empire and the matter of it
of England And that the arduous and urgent affairs concerning the King State and Defence of the Realm and of the Church of England and the maintenance and making of Laws and redress of mischiefs and grievances which daily happen within this Realm are proper subjects and matter of Councel and Debate in Parliament And that in the handling and procéeding of those businesses every Member of the House of Parliament hath and of right ought to have freedom of spéech to propound treat reason and bring to conclusion the same And that the Commons in Parliament have like liberty and fréedom to treat of these matters in such order as in their judgments shall seem fittest And that every Member of the said House hath like freedom from all Impeachment Imprisonment and molestation other then by Censure of the House it self for or concerning any speaking reasoning or declaring of any matter or matters touching the Parliament or Parliament-business And that if any of the said Members be complained of and questioned for any thing done or said in Parliament the same is to be shewed to the King by the advice and assent of all the Commons assembled in Parliament before the King gave credence to any private information But how the King was moved by the Protestation of the House of Commons will appear by this Memorial Whitehall Decemb. 30. 1621. HIs most Excellent Majesty coming this day to the Council the Prince his Highness and all the Lords and others of His Majesties Privy Council sitting about him and all the Iudges then in London which were six in number there attending upon His Majesty the Clerk of the Commons House of Parliament was called for and commanded to produce his Iournal-book wherein was noted and Entries made of most passages that were in the Commons House of Parliament and amongst other things there was written down the form of a Protestation concerning sundry Liberties Priviledges and Franchises of Parliament with which form of Protestation His Majesty was justly offended Nevertheless His Majesty in a most gracious manner there expressed That he never meant to deny that House of Commons any lawful Priviledges that ever they had enjoyed but whatsoever Priviledges or Liberties they had by any Law or Statute the same should be inviolably preserved unto them and whatsoever Priviledges they enjoyed by Custom or uncontrolled and lawful president His Majesty would be careful to preserve But this Protestation of the Commons House so contrived and carried as it was His Majesty thought fit to be razed out of all Memorials and utterly to be annihilated both in respect of the manner by which it was gained and the matter therein contained For the manner of getting it First in respect of the time For after such time as His Majesty out of his Princely grace and to take away all mistakings had directed his Letters to Secretary Calvert dated at Royston 16 Decembris and therein had so explained himself in the point of maintaining the priviledges of the House of Commons as that most of the said House rested fully satisfied and freed from any scruple of having their liberties impeached And after that by His Majesties Letters directed to the Speaker dated 18 December being Tuesday His Majesty at the humble suit of the House of Commons condescended to make this Méeting a Session before Christmas and for that purpose had assigned Saturday following Now upon this very Tuesday and while the Messengers from the House of Commons were with His Majesty at Theobalds to return thanks unto His Majesty and therewith an excuse from them not to make it a Session in respect of the strait of time whereunto they were driven which deferment His Majesty admitted of at their desires and thereupon gave order for the adjournment of the Parliament until the Eight of February next which was the first day formerly appointed by His Majesty for the méeting together of the Parliament And whilst their messengers were with His Majesty and had received a gracious Answer to return unto their House even that afternoon a Committee was procured to be made for taking their Liberties into consideration And this afternoon a Protestation was made to whom appears not concerning their Liberties and at six a clock at night by candle-light the same Protestation was brought into the House by the Committee and at that time of night it was called upon to be put to the Question there not being the third part of the House then present whereas in all matters of weight their usual custom is to put nothing of importance to the Question till the House be full And at this time many of them that were present expected the Question would have been deferred to another day and a fuller House and some then present stood up to have spoken to it but could not be seen nor heard in that darkness and confusion Now for the matter of the Protestation it is penned in such ambiguous and general words as may serve for future Times to invade most of Rights and Prerogatives annexed to the Imperial Crown the claim of some priviledges being grounded upon the words of the Writ for assembling the Parliament wherein some words viz. Arduis Regni are cunningly mentioned but the word quibusdam which restraineth the generality to such particular Cases as His Majesty pleaseth to consult with them upon is purposely omitted These things considered His Majesty did this present day in full assembly of his Council and in the presence of the Iudges declare the said Protestation to be invalid annulled void and of no effect And did further manu sua propria take the said Protestation out of the Iournal-book of the Clerk of the Commons House of Parliament and commanded an Act of Council to be made thereupon and this Act to be entred in the Register of Council-causes On the Sixth of Ianuary the King by Proclamation dissolved the Parliament shewing that the assembling continuing and dissolving of Parliaments doth so peculiarly belong unto him that he needs not give an accompt thereof unto any Yet he thought fit to declare That in this Dissolution he had the advice and uniform consent of his whole Council And that some particular Members of the House of Commons took inordinate liberty not only to treat of his high Prerogatives and sundry things not fitting to be argued in Parliament but also to speak with less respect to Foreign Princes That they spent the time in disputing Priviledges descanting upon the words and syllables of his Letters and Messages And that these Evil-tempered spirits sowed tares among the corn and by their cunning devices have imposed upon him a necessity of discontinuing this present Parliament without putting unto it the name or period of a Session And lastly he declared That though the Parliament be broken off yet he intended to govern well and shall be glad to lay hold on the first occasion to call a Parliament again at convenient time The King was
lending of the Ships and received fair Answers from them both But the King sent an express and strict Order to Pennington requiring him without delay to put his former Command in Execution for the consigning of the Ship called the Vantguard with all her furniture into the hands of the Marquess D' Effiat assuring the Officers of the Ships that he would provide for their Indempnity and further commanding him to require the Seven Merchants Ships in his name to put themselves into the Service of the French King and in case of backwardness or refusal to use all means to compel them thereunto even to their sinking Upon this Pennington went back to Deep and put the Vantguard into the absolute Power and Command of the French King to be employed in his Service at pleasure and commanded the rest of the Fleet to the like Surrender At the first the Captains Masters and owners refused to yield weighed Anchor and were making away but when Pennington shot they came in again but Sir Ferdinando Gorge came away with the Ship called the Neptune The Companies unanimously declined the Service and quitted the Ships all but one Man who was a Gunner and Pennington hasted to Oxford where the Parliament was Reassembled but as was voiced was there concealed till the Parliament was dissolved On the First of August the Parliament Reassembled at Oxford whether the news of the Ships lent to the French against the besieged Rochellers did quickly flie and exasperate the spirit of that great Assembly against the Duke of Buckingham The Grievances insisted upon were the mis-spending of the Publick Treasure the neglect of guarding the Seas insomuch that the Turks had leisure to land in the Western parts and carry away the Subjects Captives The Commons appointed a Committee to consider of secret Affairs and to examine the Disbursements of the Three Subsidies and the Three Fifteens given to King Iames for the Recovery of the Palatinate and they prepared to assault the Duke Also Mr. Richard Montague was summoned to appear according to the Condition of his Bond and a Committee was appointed to proceed in the further Examination of that business Mr. Montagues Cause was recommended to the Duke by the Bishops of Rochester Oxford and St. Davids as the Cause of the Church of England They shew that some of the Opinions which offended many were no other then the resolved Doctrine of this Church and some of them are curious Points disputed in the Schools and to be left to the liberty of Learned Men to abound in their own sense it being the great fault of the Council of Trent to require a Subscription to School Opinions and the approved Moderation of the Church of England to refuse the apparent Dangers and Errors of the Church of Rome but not to be over-busie with Scholastical Niceties Moreover in the present case they alleage that in the time of Henry the Eighth when the Clergy submitted to the Kings Supremacy the Submission was so resolved That in case of any difference in the Church the King and the Bishops were to determine the Matter in a National Synod and if any other Judge in Matters of Doctrine be now allowed we depart from the Ordinance of Christ and the continual practice of the Church Herewithal they intimated That if the Church be once brought down below her self even Majesty it self with soon be impeached They say further That King Iames in his rare wisdom and judgment approved all the Opinions in this Book and that most of the contrary Opinions were debated at Lambeth and ready to be published but were suppressed by Queen Elizabeth and so continued till of late they received countenance at the Synod of Dort which was a Synod of another Nation and to us no ways binding till received by Publick Authority And they affirm boldly That they cannot conceive what use there can be of Civil Government in the Common-wealth or of External Ministry in the Church if such fatal Opinions as some are which are opposite to those delivered by Mr. Montague be publickly taught and maintained Such was the Opinion of these forenamed Bishops but others of Eminent Learning were of a different Judgment At Oxford in a late Divinity Disputation held upon this Question Whether a Regenerate Man may totally and finally fall from Grace The Opponent urging the Appeal to Caesar the Doctor of the Chair handled the Appellator very roughly saying He was a meer Grammarian a Man that studied Phrases more then Matter That he understood neither Articles nor Homilies or at least perverted both That he attributed he knew not what vertue to the sign of the Cross Dignus Cruce qui asserit and concluded with an Admonition to the Juniors That they should be wary of reading that and the like Books On the Fourth of August the Lords and Commons were commanded to attend his Majesty in Christs-Church Hall in Oxford where he spake unto them in manner following MY Lords and you of the Commons We all remember that from your Desires and Advice my Father now with God brake off those two Treaties with Spain that were then in hand Well you then foresaw that as well for regaining my dispossessed Brothers Inheritance as home defence a War was likely to succeed and that as your Councils had led my Father into it so your assistance in a Parliamentary-way to pursue it should not be wanting That aid you gave him by Advice was for succor of his Allies the guarding of Ireland and the home part supply of Munition preparing and setting forth of his Navy A Council you thought of and appointed for the War and Treasurers for issuing of the Moneys And to begin this Work of your Advice you gave Three Subsidies and as many Fifteens which with speed were levied and by direction of that Council of War in which the preparation of this Navy was not the least disbursed It pleased God at the entrance of this Preparation by your Advice begun to call my Father to his Mercy whereby I entred as well to the care of your Design as his Crown I did not then as Princes do of Custom and Formality Reassemble you but that by your further Advice and Aid I might be able to proceed in that which by your Counsels my Father was engaged in Your love to me and forwardness to further those Affairs you expressed by a Grant of Two Subsidies yet ungathered although I must assure you by my self and others upon credit taken up and aforehand disbursed and far short as yet to set forth that Navy now preparing as I have lately the estimate of those of care and who are still employed about it whose particular of all expences about this preparation shall be given you when you please to take an accompt of it His Majesty having ended his Speech commanded the Lord Conway and Sir Iohn Cook more particularly to declare the present state of Affairs which
his Covetousness and therefore their Lordships need not wonder if the Commons desire and that earnestly to be delivered from such a Grievance That this complaint and proceedings of theirs may appear to be suitable to the proceedings of their Predecessors in like Cases he alleaged three Presidents which he said were Presidents in kinde but not in proportion because there hath never been the like The first 10 Rich. 2. in the Complaint against Michael de la Pool Earl of Suffolk out of which he took Three Articles the first That being Chancellor and sworn to the Kings profit he had purchased divers Lands from the King more then he had deserved and at an under rate yet this was thought to be an offence against the State The second That he had bought of one Tydman an Annuity of Five hundred pound per annum which Grant was void by the Laws yet he being Chancellor procured the King to make it good by a new Grant upon Surrender of the old This was complained of in Parliament and there punished The third Whereas the Master of St. Anthonies being a Schismatick had forfeited his Possessions into the Kings hand this Earl took them in Farm at Twenty Marks a year converting the overplus which was One thousand Marks to his own profit which should have come to the King The next President II Rich. 2. in the Judgment against Robert de Vere of Oxford and others out of which he took two Articles the Fifth and the Seventh The Fifth was for taking Mannors and Lands annexed to the Crown whereby they themselves were inriched and the King made poor the Seventh was for intercepting the Subsidies granted for the defence of the Kingdom The third President is that of 28 Hen. 6. in the Parliament Roll out of the Complaint against William de la Pool Duke of Suffolk Article 29. That he being next and primest of Council to the King he had procured him to grant great Possessions to divers persons whereby the King was much impoverished the expence of his House unpaid Wages Wardrobe Castles Navy Debts unsatisfied and so by his subtile Council and unprofitable Labor the Revenues of the Crown and the Dutchy of Lancaster and other the Kings Inheritances so much diminished and the Commons of the Kingdom so extreamly charged that it was near to a final destruction The fourth was That the Kings Treasure was mischievously distributed to himself his friends and well-willers so that for lack of Money no Army nor Ordnance could be provided in time and because these great persons were not brought to judgment upon these Articles alone but for other misdemeanors he made this observation That ravening upon the Kings Estate is always accounted with other great faults that deserve judgment Then he said he had done with that which had been left to him and so he left the Duke to their Lordships Justice That as he had exceeded others in this Offence so he might not come behinde them in punishment And so he humbly desired their Lordships to be pleased to pardon his Delivery and to give a favorable censure of him Lastly The Thirteenth Article was read XIII Whereas especial care and order hath been taken by the Laws of the Realm to restrain and prevent the unskilful Administration of Physick whereby the health and life of men may be much endangered And whereas most especially the Royal Persons of the Kings of the Realm in whom we their Loyal Subjects humbly challenge a great interest are and always have been esteemed by us so sacred that nothing ought to be prepared for them or administred unto them in the way of Physick or Dyet in the times of their sickness without the consent and direction of some of their sworn Physitians Apothecaries or Surgeons And the boldness of such how near soever to them in place and favor who have forgotten their Duties so far as to presume to offer any thing unto them beyond their experience hath been always ranked in the number of high Offences and Misdemeanors And whereas the sworn Physitians of our late Soveraign Lord King Iames of Blessed memory attending on his Majesty in the moneth of March in the Two and twentieth year of his most glorious Raign in the times of his sickness being an Ague did in due and necessary care of and for the recovery of his health and preservation of his Person upon and after several mature Consultations in that behalf had and holden at several times in the same moneth resolve and give directions That nothing should be applied or given unto his Highness by way of Physick or Dyet during his said sickness but by and upon their general advice and consents and after good deliberation thereof first had more especially by their like care and upon like consultations did justly resolve and publickly give warning to and for all the Gentlemen and other Servants and Officers of his said late Majesties Bed-chamber That no Meat nor Drink whatsoever should be given unto him within two or three hours next before the usual time of and for the coming of his Fit in the said Ague nor during the continuance thereof nor afterwards until his cold Fit were past The said Duke of Buckingham being a sworn Servant of his said late Majesty of and in his Majesties said Bed-chamber contrary to his duty and the tender respect which he ought to have had of his Majesties most Sacred Person and after the Consultations Resolutions Directions and Warning aforesaid did nevertheless without any sufficient warrant in that behalf unduly cause and procure certain Plaisters and a certain Drink or Potion to be provided for the use of his said Majesty without the direction or privity of his said late Majesties Physitians not prepared by any of his Majesties sworn Apothecaries or Chirurgeons but compounded of several ingredients to them unknown Notwithstanding the same Plaisters or some Plaister like thereunto having been formerly administred unto his said Majesty did produce such ill effects as that some of the said sworn Physitians did altogether disallow thereof and utterly refused to meddle any further with his said Majesty until these Plaisters were removed as being hurtful and prejudicial to the health of his Majesty yet nevertheless the same Plaisters as also a Drink or Potion was provided by him the said Duke which he the said Duke by colour of some insufficient and slight pretences did upon Monday the One and twentieth day of March in the Two and twentieth year aforesaid when his Majesty by the judgment of his said Physitians was in the declination of his Disease cause and procure the said Plaisters to be applied to the Brest and Wrists of his said late Majesty And then also at and in his Majesties Fit of the said Ague the said Munday and at several times within two hours before the coming of the same Fit and before his Majesties then cold Fit was passed did deliver and cause to be delivered several quantities of the
the best way for Reformation And will not this be a happy union if the whole body concur to reduce all into regularity if Laws be our Birth-rights we shall hereby recover them and their splendor this will have good aspect abroad and it will give courage to our men that have been despised and will prevent practises to continue divisions amongst us both at home and abroad The first Sower of seeds of distractions amongst us was an Agent of Spain Gondomar that did his Master great service here and at home Since that we have had other Ministers that have blown the fire The Ambassador of France told his Master at home what he had wrought here the last Parliament namely divisions between King and people and he was rewarded for it Whilst we sit here in Parliament there was another intended Parliament of Jesuites and other well-willers within a mile of this place that this is true was discovered by Letters sent to Rome The place of their meeting is changed and some of them are there where they ought to be if you look in your Calendar there is a day of St. Ioseph it was called in the Letter the Oriental day and that was the day intended for their meeting I speak this to see Gods hand to work our union in their division they are not more rent from us then they are from themselves I desire the meanest judgement to consider what may follow by giving precedency to his Majesty and by so doing we shall put from our selves many imputations If we give any occasion of breach it is a great disadvantage if otherwise it is an obligation to his Majesty which his Majesty will not forget Then he made a motion that the same Committee may hear Propositions of general heads of Supply and afterward go to other businesses of the day for Grievances Others preferred the Consideration of Grievances as a particular root that invades the main liberty of the Subject It is the Law said they that glorious fundamental Right whereby we have power to give we desire but that his Majesty may see us have that right therein which next to God we all desire and then we doubt not but we shall give his Majesty all supply we can The time was when it was usual to desire favors for sowing discords as Gondomar did for Raleigh's head But the debates of this day came to no Resolution The day following Mr Secretary Cook tendred the House certain Propositions from the King touching Supply and told them That his Majesty finding time precious expects that they should begin speedily lest they spend that time in deliberation which should be spent in action that he esteems the Grievances of the House his own and stands not on Precedence in point of honor Therefore to satisfie his Majesty let the same Committee take his Majesties Propositions into consideration and let both concur whether to sit on one in the forenoon or the other in the afternoon it is all one to his Majesty Hereupon the House turned themselves into a Committee and commanded Edward Littleton Esquire unto the Chair and ordered the Committee to take into Consideration the Liberty of the Subject in his Person and in his Goods and also to take into Consideration his Majesties Supply In this Debate the Grievances were reduced to six Heads as to our Persons 1. Attendance at the Council Board 2. Imprisonment 3. Confinement 4. Designation for Forein Imployment 5. Martial-Law 6. Undue Proceedings in matter of Judicature The first matter debated was the Subjects Liberty in his Person the particular instance was in the Case of Sir Iohn Heveningham and those other Gentlemen who were imprisoned about Loan-money and thereupon had brought their Habeas Corpus had their Case argued and were nevertheless remanded to Prison and a Judgment as it was then said was entred Whereupon Mr. Creswell of Lincolns-Inn spake to this purpose Justice said he is the Life and the Heart-blood of the Common-wealth and if the Commonwealth bleed in the master vein all the Balm in Gilead is but in vain to preserve this our Body of Policy from ruin and destruction Justice is both Columna Corona Reipublicae She is both the Columne and the Pillar the Crown and the Glory of the Commonwealth this is made good in Scripture by the Judgement of Solomon the wisest King that ever Raigned upon Earth For first She is the Pillar for he saith By Justice the Throne shall be Established Secondly She is the Crown for he saith That by Justice a Nation shall be Exalted Our Laws which are the rules of this Justice they are the ne plus ultra to both the King and the Subject and as they are the Hercules Pillar so they are the Pillar to every Hercules to every Prince which he must not pass Give me leave to resemble her to Nebuchadnezar's Tree for she is so great that she doth shade not onely the Palace of the King and the House of Nobles but doth also shelter the Cottage of the poorest Begger Wherefore if either now the blasts of indignation or the unresistable violater of Laws Necessity hath so bruised any of the Branches of this Tree that either our Persons or Goods or Possessions have not the same shelter as before yet let us not therfore neglect the root of this great Tree but water it with our Tears that so these bruised Branches may be recovered and the whole Tree again prosper and flourish I know well that Cor regis inscrutabile and that Kings although they are but men before God yet they are gods before men And therefore to my gracious and dread Soveraign whose vertues are true qualities ingenerate both in his judgment and nature let my arm be cut off nay let my soul not live that day 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 Commonwealth as there are the Flowers of the Sun which are so glorious that they are to be handled only by Royal Majesty So are there also some Daysies and wholesom Herbs which every common hand that lives and labors 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 chief one I will now descend to the Question wherein I hold with all dutiful submission to better judgments that these acts of Power in imprisoning and consining of his Majesties Subjects in such manner without any Declaration of the Cause are against the fundamental Laws and Liberties of this Kingdom The first from the great favor which the Law doth give unto and the great care which it hath ever taken of the Liberty and safety of this Kingdom To proceed therefore in maintenance of my first reasons I find our Law doth so much favor the Subjects Liberty of
the Judges justly refused it but if the Judges did intend it we sit not here said he to answer the trust we are sent for if we present not this matter to his Majesty Let this business be further searched into and see how this Judgement lies against us and what the Judges do say concerning the same Sir Edw. Cook proceeded and said This Draught of the Judgement will sting us quia nulla causa fuit ostenta being committed by command of the King therefore he must not be bailed What is this but to declare upon Record that any Subject committed by such absolute command may be detained in Prison for ever What doth this tend to but the utter subversion of the choise Liberty and Right belonging to every free-born Subject of this Kingdom I fear were it not for this Parliament that followed so close after that form of Judgement was drawn up there would have been hard putting to have had it entred But a Parliament brings Judges Officers and all men in good order The Commons afterwards upon further debates of this matter desired that the Judges of the Kings-Bench might declare themselves concerning this business which was done accordingly and though it be a little out of time yet for coherence sake we bring it in here Judge Whitlock spake thus My Lords We are by your appointment here ready to clear any Aspersion of the House of Commons in their late presentment upon the Kings-Bench that the Subject was wounded in the Judgement there lately given If such a thing were My Lords your Lordships not they have the power to question and judge the same But My Lords I say there was no Judgement given whereby either the Prerogative might be enlarged or the Right of the Subject trenched upon It is true my Lords in Mich Tearm last four Gentlemen Petitioned for a Habeas Corpus which they obtained and Counsel was assigned unto them the Return was per speciale mandatum Domini Regis which likewise was made known to us under the Hands of Eighteen Privy-Councellors Now my Lords if we had delivered them presently upon this it must have been because the King did not shew cause wherein we should have judged the King had done wrong and this is beyond our knowledge for he might have committed them for other matters then we could have imagined but they might say thus they might have been kept in Prison all their dayes I answer no but we did remit them that we might better advise of the matter and they the next day might have had a a new Writ if they had pleased But they say we ought not to have denied bail I answer if we had done so it must needs have reflected upon the King that he had unjustly imprisoned theâ— And it appears in Dyer 2 Eliz. that divers Gentlemen being commâ—â—â—d and requiring Habeas Corpus some were bailed others remitted whereby it appears much is left to the discretion of the Judges For that which troubleth so much remittitur quousque This my Lords was onely as I said before to take time what to do and whereas they will have a difference between remittitur remittitur quousque My Lords I confess I can finde none but these are new inventions to trouble old Records And herein my Lords we have dealt with knowledge and understanding for had we given a Judgement the party must thereupon have rested every Judgement must come to an issue in matter in fact or demur in point of Law here is neither therefore no Judgement For endeavoring to have a Judgement entred it is true Mr Attorney pressed the same for his Majesties Servies But we having sworn to do right between his Majesty and his Subjects commanded the Clerk to make no Entry but according to the old form and the Rule was given by the Chief Justice alone I have spent my time in this Court and I speak confidently I did never see nor know by any Record that upon such a Return as this a man was bailed the King not first consulted with in such a Case as this The Commons House do not know what Letters and Commands we receive for these remain in our Court and are not viewed by them For the rest of the matters presented by the House of Commons they were not in agitation before us whether the King may commit and how long he may detain a man committed Therefore having answered so much as concerneth us I desire your Lorships good Construction of what hath been said Judge Doderidge concerning the same Subject said It is no more fit for a Judge to decline to give an accompt of his doings then for a Christian of his Faith God knoweth I have endeavored alwayes to keep a good Conscience for a troubled one who can bear The Kingdom holds of none but God and Judgements do not pass privately in Chambers but publickly in Courts where every one may hear which causeth Judgement to be given with maturity Your Lordships have heard the Particulars given by my brother how that Counsel being assigned to those four Gentlemen in the latter end of Mich. Term their Cause received hearing and upon consideration of the Statutes and Records we found some of them to be according to the good old Law of Magna Charta but we thought that they did not come so close to this Case as that bail should be thereupon presently granted My Lords the Habeas Corpus consisteth of three parts The Writ the Return upon the Writ or Schedule and the Entry or Rule reciting the Habeas Corpus and the Return together with the opinion of the Court either a remittitur or a traditur in Ballium In this Case a remittitur was granted which we did that we might take better advisement upon the Case and upon the remittitur My Lords they might have had a new Writ the next day and I wish they had because it may be they had seen more and we had been eased of a great labour And my Lords when the Attorney upon the Remittitur pressed an Entry we all straitly charged the Clerk that he should make no other Entry then such as our Predecessors had usually made in like Cases For the difference between Remittitur and Remittitur quousque I could never yet finde any I have now sate in this Court 15 years and I should know something surely if I had gone in a Mill so long dust would cleave to my clothes I am old and have one foot in the Grave therefore I will look to the better part as near as I can But Omina habere in memoria in nullo errare Divinum potius est quà m humà num The Lord Chief Justice Hide and Justice Iones delivered their opinions much to the same purpose The House proceeded in further debate of the Liberty of the Subject Mr Hackwel resumes the Debate of the matter concerning the Habeas Corpus The late Judgement said he which lies in Bar is
People to pray for him hoping that God would enable him by some satisfactory benefit to make amends and comfort his Subjects for those pressures To these temporal Precedents of antient times which were alledged he added an Ecclesiastical Precedent out of a book called Pupilla Oculi being published for the instruction of Confessors in the Title De participantibus cum excommunicatis fol. 59. All the Articles of Magna Charta are inserted with this direction Hos articulos ignorare non debent quibus incumbit confessiones audire infra provinciam Cantuariensem He likewise remembred the Proclamation 8. Iac. for the calling in and burning of Doctor Cowel's book for which these reasons are given For mistaking the true state of the Parliament of the Kingdom and fundamental constitution and priviledges thereof For speaking irreverently of the Common Law it being a thing utterly unlawful for any Subject to speak or write against that Law under which he liveth and which we are sworn and resolve to maintain From these Precedents he collected that if former Parliaments were so careful of false rumors and news they would have been much more tender of such doctrines as these which might produce true occasions of discord betwixt the King and his People If those who reported the King would lay Impositions and break his Laws were thought such hainous offenders how much more should this man be condemned who perswaded the King he is not bound to keep those Laws If that great King was so far from challenging any right in this kinde that he professed his own sorrow and repentance for grieving his Subjects with unlawful charges If Confessors were enjoyned to frame the Consciences of the People to the observance of these Laws certainly such Doctrine and such a Preacher as this would have been held most strange and abominable in all these times The third general part was the conclusion or prayer of the Commons which consisted of three Clauses First they reserved to themselves liberty of any other accusation and for this he said there was great reason that as the Doctor multiplied his offences so they may renew their accusations Secondly they saved to themselves liberty of replying to his Answer for they had great cause to think that he who shifted so much in offending would shift much more in answering Thirdly they desire he might be brought to examination and judgement this they thought would be very important for the comfort of the present age for security of the future against such wicked and malitious practises And so he concluded that seeing the cause had strength enough to maintain it self his humble suit to their Lordships was That they would not observe his infirmities and defects to the diminution or prejudice of that strength NOt long after the Commons by their Speaker demanded Judgement of the Lords against the Doctor who not accounting his submission with tears and grief a satisfaction for the great offence wherewith he stood charged gave this Sentence 1. That Dr. Manwaring Doctor in Divinity shall be imprisoned during the pleasure of the House 2. That he be fined one thousand pounds to the King 3. That he shall make such submission and acknowledgement of his offences as shall be set down by a Committee in writing both at the Bar and in the House of Commons 4. That he shall be suspended for the time of three years from the exercise of the Ministery and in the mean time a sufficient preaching Minister shall be provided out of his livings to serve the Cure This suspension and provision to be done by the Ecclesiastical jurisdiction 5. That he shall be hereafter disabled to have any Ecclesiastical Dignity or secular Office 6. That he shall be for ever disabled to preach at the Court hereafter 7. That his said Book is worthy to be burnt and that for the better effecting of this his Majesty may be moved to grant a Proclamation to call in the said Books that they may be all burnt accordingly in London and both the Universities and for the Inhibiting the printing thereof upon a great penalty Doctor Manwarings submission was in these words MAy it please this Honorable House I do here in all sorrow of Heart and true Repentance acknowledge the many Errors and Indiscretions which I have committed in preaching and publishing those two Sermons of mine which I called Religion and Allegiance and my great fault in falling upon this Theame again and handling the same rashly and unadvisedly in my own Parish Church of St. Giles in the Fields the fourth of May last past I do humbly acknowledge those three Sermons to have been full of many dangerous Passages Inferences and scandalous Aspersions in most part of the same And I do humbly acknowledge the Justice of this Honorable House in that Judgement and Sentence passed upon me for my great offence And I do from the bottom of my Heart crave pardon of God the King and this Honorable House and the Church and this Common-wealth in general and those worthy Persons adjudged to be reflected upon by me in particular for these great Errors and Offences Roger Manwaring Another Message was brought from his Majesty by the Speaker Tuesday 5 of June HIs Majesty wished them to remember the Message he last sent them by which he set a day for the end of this Session and he commanded the Speaker to let them know that he will certainly hold that day prefixed without alteration and because that cannot be if the House entertain more business of length he requires them that they enter not into or proceed with any new business which may spend greater time or which may lay any Scandal or Aspersion upon the State-government or Ministers thereof SIr Robert Phillips upon this occasion expressed himself thus I perceive that towards God and towards man there is little hope after our humble and careful endeavors seeing our Sins are many and so great I consider my own infirmities and if ever my Passions were wrought upon then now this Message stirs me up especially when I remember with what moderation we have proceeded I cannot but wonder to see the miserable straight we are now in What have we not done to have merited Former times have given wounds enough to the peoples Liberty we came hither full of wounds and we have cured what we could and what is the return of all but misery and desolation What did we aim at but to have served his Majesty and to have done that that would have made him Great and Glorious if this be a fault then we are all Criminous What shall we do since our humble purposes are thus prevented which were not to have laid any aspersion on the Government since it tended to no other end but to give his Majesty true information of his and our danger And to this we are enforced out of a necessity of duty to the King our Countrey and to Posterity but we
Circumstance must be dispensed with rather then the Substance be lost and hazarded And herein our will and pleasure is that You or as many of You from time to time as can be spared from attemdance upon Our Person or other our necessary Services doe use all diligence by your frequent meetings and serious considerations And when ye have brought any thing to maturity ye make report thereof unto us for the advancement of this greatt service which with the greatest affection we can we recommend to your best care and judgement whereof ye must not fail as ye tender Our 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 and discharge in that behalâ— In witness whereof we have caused these Our Letters to be made Letters Patents Witness Our self at VVestminster the last day of February in the third year of Our Reign Per ipsum Regem Sir Edward Cook observed some circumstances in the Commission FIrst it was after the Summons to the Parliament Sure some thought the Parliament should not be 2. There is a Pudor in it it was kept secret some great Lords never knew it 3. The end of it was Excises for they are Impositions and to be sure he would have the word otherwise wherefore his advice was to go up to the Lords and desire a Conference to complain of the Commission and desire it may be Cancelled and if there be any inrolment of it to cancel that also and that the Projector may be found out and punished Hereupon there ensued a Conference with the Lords which was thus managed by Sir Edward Cook My Lords The subject of this Conference is a Commission therefore we shall desire your Lordships to hear it read which was done accordingly That which I shall deliver is certain Observations out of the Patent First The Persons to whom it is directed 2. The Authority that is committed 3. The great penalty laid on them if they do it not 4. The Time 1. The Persons to whom it is directed are twenty three Lords and other of his Majesties Councel 2. The Authority commmitted unto them is to consider how Money may be Leavied by Impositions or otherwise It is true it is but a Power to Leavy Money by Imposition We doe not find any thing raised that is left to your Lordships but a Commission to leavy money by Imposition or otherwise give us leave to fear that Excise and what ever is comprehended in it was intended Sure I am it is against the Law it is a very high breach of your Lordships and our the poor Commons Liberties and yet this being ill in it self may produce a happy effect the King and both Houses have given a Judgment the greatest that ever was against this in the Petition of Right and when this Judgment is given see how Gods goodness hath brought it to pass that this Patent shall be part of Execution of that Judgement to dam it for the punishment I do utterly dislike that clause as you tender the Kings Honour That that must come to a thing of this nature and it is strange to me I cannot dive into it I leave it to your Lordships for the time It came out seven days after the Summons of Parliament all knew the Parliament would descry this but I hope it will now turn to good I will not say it was kept secret That which I am to demand of your Lordships first is that as we haveing considered of this Commission finding it ex diametro against the late Judgment in the Petition of Right have condemned it So your Lordships would concurre with us as hitherto ye have done 2. Thâ—t this Commission as a thing against Law may be cancelled 3. That if it be inrolled a Vote may be made of it and if not that Order be taken that it be not inrolled 4. That the warrant may be damned and destroyed 5. That it would please your Lordships in your wisdoms to take into consideration who is the Projector of this device and if he could be found out that some exemplary punishment may be according to justice inflicted on him The Lords accepted the motion and promised to present the same to his Majesty This done the House of Commons Voted that the Commission the not guarding the narrow Seas the decay of Trade and other particulars be inserted in the Remonstrance THe House having well nigh finished the several particulars of grievances of most moment resumeth the former motion to declare who was the cause of all those evils which in a Committee of the whole House was mentioned before The Debate was as hot as ever and the crimes so frequently objected against the Duke were brought in afresh as if they had never been proposed in the House One made a distinction that the Duke was The cause of some and A. cause of other grievances For the first he instanced in the disaster of the Armies the decay of Ports Trade Ships and Mariners For the second he instanced in Religion First his Mother was a Recusant and a fosterer of Recusants Secondly Papists have honour in his own employments and Papists Captains are placed by him And as for Arminians York House is a place of consultation for Mountague and others from whence is like to follow Innovation in Government Another in pursuit of the Argument that Papists were imployed by the Duke named Dalbeer as the man who betrayed our men at the Isle of Ree where all was carried by the advice of private men and some ill affected in Religion and in assault before they came away 500. men were lost and in the Retreat Dalbeer was to make a Bridge which did so intangle them as they could make no defence and all contrary to the advice of the rest of the Commanders Sir Robert Philips was of opinion to have the Declaration run thus We conceive the greatness and power of the Duke of Buckingham is the chief cause of all these evils We are not in a way of Charge but of a Remonstrance Sir Iohn Elliot Sir Edward Cook and Mr. Selden were positively to name the Duke as the cause of our evils for so said they he had been already declared in the last Parliament since when the causes are multiplied and he hath deserved nothing better of the Common-wealth In this Debate there wanted not Mediators which did desire the House for their own ends and happiness to be sparing in that kind Sir Humphrey May put them again in mind of the Kings desire that all personal aspersions might be forborn that his Majesty will take it as an argument of their moderation and judgment if they forbear in this Sir Henry Martin advised that the Remonstrance be so framed as to make it passable to his Majesties judgment and affection Let him be perswaded that it comes from a publick sence and not from private
King 2. It stands not with the dignity of the King to arrest any man C. 4. 73. The King makes a Lease for years rendring rent with condition of re-entry for non-payment he shall take advantage of the condition without any demand and the reason there given is that a decorum and conveniency might be observed So it is not befitting for the King in person to arrest any man but the King may command another to do it Bracton lib. 2. de acquirendo rerum Dominio fol. 55. sayes That the Crown of the King is to do justice and judgment and facere pacem without which the Crown it self cannot subsist Severall constructions are to be made upon those severall words and the last words facere pacem imply that the King hath a coercive power Britton f. 1. amongst the Errata The King said in person Because we are not sufficient in person to do every thing We divide the charge into many parts We are the peoples Iustice and a Iustice implies one that hath power to do justice in every kind to wit by imprisonment or otherwise 20 H. 7.7 C. 11.85 it is said That the King is the chief Iustice. And Lambert in his Justice of Peace fol. 3. saies That in antient Histories the chief Iustice of England is called Capitalis Justicia Prima Justicia after the King in England So that the King hath the same power of Iustice as the Chief Iustice had This imprisonment here which is before conviction for any offenâ— is not used towards the Subject as imprisonment for any fault but is rather an arrest or restraint to avoid further inconveniencies 14 H. 7.8 A Iustice of Peace may arrest men riotously assembled for prevention of further mischief And the Book also saies That he may leave his servants there to arrest men for safeguard of the peace It is a case well known that if a house be set on fire every man may pull down the next house for prevention of greater mischief so it seems concerning the Incendiaries of the State they ought to be restrained and supprest lest others should be stirred up by them to the same combustion 22 ass 56. and 22 E. 4.45 in false imprisonment the Defendant justifies because the Plantiff was mad and out of his wits and that he had done some harm and that he had bound and beat him to avoid further harm which might have happened by his madnesse And the justification was held good So it is in matter of Government to avoid commotions the King ought to use his coercive power against those that are enraged The objection was that this course was against the Petition of Right But I answer That this case is out of the words of that Petition the words of the Petition were Whereas by the Statute called The great Charter and by the Statute of 28 E. 3. no free-man may be taken or imprisoned yet against the tenour of the said Statute c. divers of your subjects have of late been imprisoned without any cause shewed and when for their deliverance c. they were brought before the Iustices by Writs of Habeas corpus there to undergo and receive as the Court should order and their Keepers commanded to certifie the cause of their deteyner and no cause was certified but that they were detained by your Majesties speciall command signified by the Lords of your Council and yet were returned back to severall prisons without being charged with any thing to which they might make answer according to Law These last words are observable Without being charged with any thing to which they might make answer These words do not refer to the Return of the Habeas Corpus for the cause returned therein cannot be traversed 9 H. 6. 54. but the Court took it as true But the setting forth of the cause and the answer to the same cause is to be upon other proceedings to wit upon the indictment for the offence or otherwise And there is great difference between the return of a Writ to which a man may answer and the return of an Habeas corpus 10 E. 4. 3 H. 7.11 are that if the Sheriff return Rescous all certainties of every circumstance ought to be shewed because it is fitting that a thing certain be brought into judgment And upon shewing of the grievance as above the Petition is that no free-man in any such manner as before is mentioned be imprisoned or detained such and it hath relation to such imprisonment which is mentioned in the premises And imprisonment mentioned in the premises of the Petition is where no cause at all was mentioned then where any cause is shewed is out of the Petition and that such is the word relative appears by C. 11 62. where many cases are put to the same purpose which see The third objection was That the Return was generall and uncertain The Counsell on the other side had divided the words of the Return but that is to offer violence thereunto for an exposition shall not be made by fractions but upon the whole matter For the first words notable contempts It hath been said that the addition of the word notable is but to make a flourish But I say That notable is not the emphasis of the Return but it onely expresseth the nature of the offence and yet notable is a word observable by it self in the Law and implyes that the thing is known and noted By 27 E. 1. Sheriffs shall be punished that let notorious offenders to bayl and by the Statute of 4 H. 4. chap. 3. a notorious or common thief shall not make his purgation and 26 E. 3.71 in a trespasse for fals imprisonment the Defendant said That the Plantiff came into the Town of Huntington and because he was seen in the company of R. de Thorby who was a notorious thief he as Bailiff of Huntington took him upon suspition I confesse that for contempts is generall yea it is genus generalissimum and within the Petition of Right but the words are against Our Self It hath been said That this might be by irreverent words or gestures and Our Government It hath been said that this might be by contempt to the Kings Writ or by Retraxit as Beechers case is To this I answer That those words which are spoken to one purpose ought not to be wrested to another and this is against the common meaning of the words C. 4. Thou art a murderer the Defendant shall not afterwards explain it to be a murderer of Hares for the highest murder is intended So here the highest Government is intended 4. It hath been objected that for stirring up of sedition against Us may perhaps be but an offence Finable But those words joyned with the former words shew this to be an offence of the highest nature sedition is a speciall contempt And although sedition in it self may be but a generall offence yet here it is Sedition against Us and Our Government which makes
stirring of sedition Seditio as an approved Author saies imports discordiam to wit when the members of one body fight one against another The Lord of St. Albans who was lately the Lord Chancellor of England and was a Lawyer and great States-man likewise and well knew the acceptation of this word Sedition in our Law hath made an Essay of Sedition and the Title of the Essay is Of Seditions and Tumults the whole Essay deserves the reading And there is a Prayer in the Letany From sedition and heresie c. So that there Sedition is taken as a kind of Sect. This being the naturall signification of the word then the next labour shall be to see if any thing in our Law crosse this exposition And it seems clearly that there is not 2 H. 4. cap. 15. And it is in the Parliament-Roll numb 48. against Lollards who at that time were taken as hereticks saies That such Preachers which excite and stir up to sedition shall be convented before the Ordinary c. There sedition is taken for dissention and division in doctrine And this is not made treason by the said Statute although the said Statute be now repealed by the Statute of 25 H. 8. c. 4. 1 and 2 Phil. Mar. c. 3. which is in Rastall Newes 4. which is an act against seditious words and newes of the King and Queen which is a great misdemeanor and yet the punishment appointed to be inflicted by the said Statute is but the Pillory or a Fine of 100 l. And the said Statute by the Statute of 1 Eliz. c. 16. was extended to her also which Statute now by her death is expired which I pray may be observed 13 Eliz. cap. 1. against those who seditiously publish who are the true heirs of the Crown that they shal be imprisoned for a year c. And 13 Eliz. c. 2. the seditious bringing in of the Pope's Buls is made treason which implies that it was not so at the Common Law 23 Eliz. c. 2. If any person shal devise write or print any book containing any fals seditious and slanderous matter to the stirring up or moving of any rebellion c. every such offence shal be adjudged Felony And in an Indictment upon the said Statute which see Cook 's Entries f. 352.353 there are the words rebellionem seditionem movere and yet it is but felony 35 Eliz. c. 1. made against seditious Sectaries Also there are certain Books and Authorities in Law which expresse the nature of this word Sedition C. 4.13 the Lord Cromwell's case In an action for those words You like of those that maintain seditions against the Queens proceedings the Defendant pleaded That he intended the maintenance of a seditious Sermon and this was adjudged a good plea and â—ustification From which it followes that the Seditious Sermon mentioned in the Declaration and the maintaining of sedition against the Queen is all of one signification for if they might have been taken in a different sense the justification had not been good Phillips and Badby's case which is in C. 4. 19. a. which was objected by Serjeant Berkley makes strongly for me for there an action upon the case was brought by a person for those words Thou hast made a seditious Sermon and moved the people to sedition this day And although it were there adjudged that the action lay yet the reason of the Iudgment is observable which was because the words scandalize the Plaintiff in his profession which imply that if they had not scandalized him in his profession no action would have lain And ordinary words if they scandalize a man in his profession are actionable as to say to a Iudge that he is a corrupt man or to a Merchant that he is a Bank-rupt although if they were spoken to another man they would not bear an action And although the Book say that no act followed there yet if the matter objected had been treason the very will had been punishable and by consequence a great slander But it is observed that words which imply an inclination onely to sedition are not actionable as Seditious knave but inclination to treason is treason therefore words which imply it are actionable And also for divers words an action upon the case will lye which induce not treason or felony as for calling a woman Whore by which she loseth her marriage and such like Then sedition is no offence in it self but the aggravation of an offence and no Indictment as I have said afore was ever seen of this singly by it self Tr. 21. E. 3. roll 23. Sir John Garbut's case which was put before by Mason the Indictment was in prejudice of his Crown and in manifest sedition and yet the offence there was but a Robbery It is true that upon his arraignment he stood mute therefore the Roll is that he was put to penance that is so strong and hard pain and this proves that it was not treason for if a man arraigned of treason stand mute yet the usuall judgment of treason shall be given on him And it is true also that he cannot have his Clergy because insidiator viarum was in the Indictment which if it was outs the party of his Clergy untill the Statute of 4 H. 4. c. 2. as is observed in C. 11. Poulter's case And upon the same Roll of 21 E. 3. there are four other Indictments of the same nature where Seditiosè is contained in them Anno 1585 Queen Elizabeth sent a Letter which I have seen by the hands of the noble Antiquary Sir Robert Cotton to the Maior of London for the suppressing of divers seditious Libels which were published against her Princely Government and yet in the conclusion of the Letter it appears that they were onely against the Earl of Leicester and this was to be published onely by Proclamation in London 5 H. 4. numb 11. and 13. The Earl of Northumberland preferred a Petition to the King in Parliament in which he confesseth that he had not kept his Majesties Laws as a liege subject and also confesseth the gathering of power and the giving of Liveries Wherefore he petitioned the worship of the King for so are the words for his grace The King upon this Petition demanded the opinion of the Lords of Parliament and of the Iudges assistant if any thing contained within the said Petition were treason or no and it was resolved by them all that nothing as it is mentioned in the said Petition was treason but great misdemeanors and yet truly though not fully there mentioned it was a great rebellion and insurrection But they adjudged according to the said Petition as you are now to judge upon the Return as it is made here In Mich. 33 Cawdry's case Sedition and Schism were described As schism is a separation from the unity of the Church so sedition is a separation from the unity of the Common-wealth And an Author saies that a seditious person differs from a