confessed he had taken to be secret Exceptions taken against the L. Digby for words concerning Goring's Oath saying he was a perjured man After a warm Debate upon it and he had in his Place Explained himself yet the House not being satisfied with it he was ordered to withdraw A Petition was this day read in the House of Lords The Factious Sectaries disturb the People at the Communion declaring the great Disorders committed in the Parish Churches of Saint Saviours and St. Olaves in Southwark in time of the Administration of the Communion hereupon it was Ordered That the Names of the particular Offenders be given in to this House and then this House will give such Order therein as stands with Justice and the Desert of the Cause These were the Men for Reformation whom nothing not the most Sacred Duty of Christian Religion could keep within the bounds of Decency and Order The Lords finding themselves Extremely Pressed by the bringing Writs of Errors upon Judgments into their House whereby the Publique Affairs were much retarded Order of the Lords about Writs of Error made this Order Ordered That such persons that bring in Writs of Error into this House upon a Judgment given in a Court of Justice and if it appear that there is no Just Cause of Error in the said Judgment but merely for delay of Justice and Execution that then such Costs is to be given against the Parties that bring the Writ of Error as the House shall think fit to give in that Case And that the Record shall be remitted whence it came that the Defendant may take out Execution upon the Judgment The House of Commons Sitting late the last Night upon the Debate concerning the Lord Digby Wednesday June 9. and some persons calling for Candles which the major part opposed being inclined to rise but by mistake the Candles being brought in Sir William Widdrington and Sir Herbert Price sent to the Tower for bringing in Candles against the desire of the House and Sir William Widdrington and Sir Herbert Price taking them from the Serjeant without a General Command which occasioned a great disturbance in the House Mr. Hollis made a Speech in aggravation of their Offence shewing That the House of Commons being a Rule and Example of Order there ought to be no Disorders within those Walls for that if there were such within well might it be Expected there would be without and that it might be the occasion of shedding much blood among themselves if upon such a difference Parties should have sided one against another Whereupon though both the Gentlemen made their Submission and craved the Pardon of the House yet they were immediately committed Prisoners to the Tower during the Pleasure of the House The House then fell upon the last Nights Debate concerning Colonel Goring's Discovery and it was Resolved Vote in favour of Colonel Goring's discovery c. That Col. Goring in his Depositions concerning the Discovery has done nothing contrary to Justice or Honor but has therein deserved well of the Commonwealth and of this House By this time I doubt not but the Reader 's Curiosity will prompt him to know the meaning of this Conspiracy which made as much noise in London and indeed throughout England as ever the famous Conspiracy of Cataline did at Rome I will give him the best Information I can from the Memoires of the Lord Manchester and in his own words TO prevent the Earl of Strafford's Death An Account of the Conspiracy in the Army from the Memoires of the Earl of Manchester saith he several Designs had been upon the Wheel but all failed therefore it was consulted how to Engage the Army in the North to serve the King in order to his Freedom from the Parliaments Fetters metre le Roy hors d' paye as the Royalists termed it This occasioned several Addresses to the Principal Commanders in the North but they were fearful and backward to entertain any Motions or Propositions which might put them upon a breach with the Parliament But Mr. Percy and Mr. Jermin finding a great discontent in those Commanders of the Army who were Members of Parliament as Col. Wilmot Col. Ashburnham and Col. Pollard who thought that their Services had merited much better of the Parliament then that the Scotch Officers and Scots Army should be preferred before them in their Gratuities and in their Pay These Commanders owning that the Parliament had disobliged them gave Mr. Percy a rise to press with greater Earnestness his design of Engaging them to serve the King and to that End an Oath of Secrecy was â—amed and others were admitted into their Confederacy as Mr. Jâ—â—â—in and Mr. Goring and Propositions were framed But it fell out in this as in most Conspiracies of the like Nature that though the same Oath was taken by all that met together yet it was not taken by all with the same persuasion or intention For Col. Goring whose Ambition was not answered in being promised the Place of Lieutenant General of the Army and finding others employed whose persons he disliked he having a full Information from Mr. Percy and Mr. Jermin of all the Design thought it would tend most to his Security and Advantage to reveal the Conspiracy and being versed in all the Methods of falshood he chose the Time and Means which he thought would be most acceptable and obliging to the Parliament He therefore first imparts it to the Earl of Newport who was his particular Friend and desired him to bring him to some other Lords of the Parliament such as might be most likely to prevent that Mischief which was intended and accordingly the next day about Evening the Lord Newport brought him to the Earl of Bedford and the Lord Mandeville to whom he first made a Protestation of his Fidelity to the Parliament and of his readiness to run all hazards for the Safety of it Then he imparted the substance of the Design and desired them to make what Use of it they thought fit for their own and the Common-wealths Security but not to bring him as the Accuser of the Persons except Necessity did require it The Lords who had this Design revealed unto them thought it necessary to discharge themselves and communicated it to some Members of the House of Commons by whose Advice it was agreed That Goring should repair to his Government at Portsmouth and that so soon as he was gone the Persons whom he had discovered to be Actors in this Design should be apprehended but private Notice being given to Mr. Percy and Mr. Jermin they prevented the Justice of the Parliament by their Escape out of England Mr. Percy with some difficulty and hazzard took Shipping in a private Port in Sussex Mr. Jermin ventured upon Goring's Faithfulness to him and brought unto him a Warrant under the King's Hand to see him safely transported in one of his Frigots which he obeyed with Care and
Irish Statute or Custom Object But it will be said that Writs of Error are only upon failure of justice in Ireland and that suits cannot originally be commenced here for things done in Ireland because the Kings Writ runs not in Ireland Answ This might be a good Plea in the Kings-Bench and inferior Courts at Westminster-Hall the question is Whether it be so in Parliament The Kings Writ runs not within the County-Palatine of Chester and Durham nor within the Five Ports neither did it in Wales before the Union of Henry the 8th's time after the Laws of England were brought into Wales in King Edw. the 1. time Suits were not originally commenced at Westminster-Hall for things done in them yet this never excluded the Parliament-suits for Life Lands and Goods within these jurisdictions are determinable in Parliament as well as in any other parts of the Realm Ireland as appears by the Statute of the Thirtieth year of Henry 3. before-mentioned is united to the Crown of England By the Statute of the Eight and twentieth year of Hen. 6th in Ireland it is declared in these words That Ireland is the proper Dominion of England and united to the Crown of England which Crown of England is of it self and by it self wholly and intirely endowed with all Power and Authority sufficient to yield to the Subjects of the same full and plenary remedy in all Debates and Suits whatsoever By the Statute of the Three and twentieth year of Henry the 8th the first Chapter when the Kings of England first assumed the Title of King of Ireland it is there Enacted that Ireland still is to be held as a Crown annexed and united to the Crown of England So that by the same reason from this that the Kings Writs run not in Ireland it might as well be held that the Parliament cannot originally hold Plea of things done within the County-Palatine of Chester and Durham nor within the Five Ports and Wales Ireland is a part of the Realm of England as appears by those Statutes as well as any of them This is made good by constant practice in all the Parliament Rolls from the first to the last there are Receivers and Tryers of Petitions appointed for Ireland for the Irish to come so far with their Petitions for Justice and the Parliament not to have cognizance when from time to time they had in the beginning of the Parliament appointed Receivers and Tryers of them is a thing not to be presumed An Appeal in Ireland brought by William Lord Vesey against John Fitz-Thomas for Treasonable words there spoken before any Judgment given in Case there was removed into the Parliament in England and there the Defendant acquitted as appears in the Parliament Pleas of the Two and twentieth year of Edw. 1. The Suits for Lands Offices and Goods originally begun here are many and if question grew upon matter in Fact a Jury usually ordered to try it and the Verdict returned into the Parliament as in the Case of one Ballyben in the Parliament of the Five and thirtieth year of Edw. the 1. If a doubt arose upon a matter tryable by Record a Writ went to the Officers in whose custody the Record remained to certifie the Record as was in the Case of Robert Bagott the same Parliament of the Five and thirtieth year of Edw. the 1. where the Writ went to the Treasurer and Barons of the Exchequer Sometimes they gave Judgment here in Parliament and commanded the Judges there in Ireland to do execution as in the great Case of Partition between the Copartners of the Earl-Marshal in the Parliament of the Three and thirtieth of Edward the 1. Where the Writ was awarded to the Treasurer of Ireland My Lords The Laws of Ireland were introduced by the Parliament of England as appears by Three Acts of the Parliament before cited It is of higher Jurisdiction Dare Leges then to judge by them The Parliaments of England do bind in Ireland if Ireland be particularly mentioned as is resolved in the Book-Case of the First year of Henry the Seventh Cook 's Seventh Report Calvin's Case and by the Judges in Trinity-Term in the Three and thirtieth year of Queen Elizabeth The Statute of the Eighth year of Edward the 4th the first Chapter in Ireland recites That it was doubted amongst the Judges whether all the English Statutes though not naming Ireland were in force there if named no doubt From King Henry the 3d his time downwards to the Eighth year of Queen Elizabeth by which Statute it is made Felony to carry Sheep from Ireland beyond Seas in almost all these Kings Reigns there be Statutes made concerning Ireland The exercising of the Legislative Power there over their Lives and Estates is higher than of the Judicial in question until the 29th year of Edward the 3d erroneous Judgments given in Ireland were determinable no where but in England no not in the Parliament of Ireland as it appears in the close Rolls in the Tower in the 29th year of Edward the 3d. Memb. 12. Power to examine and reverse erroneous Judgments in the Parliaments of Ireland is granted from hence Writs of Error lye in the Parliament here upon erroneous Judgments after that time given in the Parliaments of Ireland as appears in the Parliament Rolls of the Eighth year of Henry the 6th N o 70. in the Case of the Prior of Lenthan It is true the Case is not determined there for it 's the last thing that came into the Parliament and could not be determined for want of time but no exception at all is taken to the Jurisdiction The Acts of Parliament made in Ireland have been confirmed in the Parliaments of England as appears by the close Rolls in the Tower in the Two and fortieth year of Edward the 3d. Memb. 20. Dorso where the Parliament in Ireland for the preservation of the Countrey from Irish who had almost destroyed it made an Act That all the Land-Owners that were English should reside upon their Lands or else they were to be forfeited this was here confirmed In the Parliament of the Fourth year of Henry the 5th Chap. 6. Acts of Parliament in Ireland are confirmed and some priviledges of the Peers in the Parliaments there are regulated Power to repeal Irish Statutes Power to confirm them cannot be by the Parliament here if it hath not cognizance of their Parliaments unless it be said that the Parliament may do it knows not what Garnsey and Jersey are under the Kings subjection but are not parcels of the Crown of England but of the Duchy of Normandy they are not governed by the Laws of England as Ireland is and yet Parliaments in England have usually held Plea of and determined all Causes concerning Lands or Goods In the Parliament in the 33 Edward 1. there be Placita de Insula Jersey And so in the Parliament 14 Edw. 2. and so for Normandy and Gascoigne and always as long as any part of
Compositions he hath paid near 100000 l. into the Exchequer and they had no other Priviledges than what was exercised in the Commission and in former like Commissions and as are in the present Commission to the Lord Treasurer and others To the Nineteenth he saith The last Summer was twelve months when the English and Scotch lay in the Fields near Berwick the Earl and Council of Ireland having a general motion thereof were in fear that the Scots in Vlster being almost 100000 in number might be drawn to side with the Covenanters and advising how to secure that Kingdom the Principal of the Nation of Scotland living in Ireland came to Dublin and Petitioned That he might have an Oath whereby they might give Testimony of future Obedience to His Majesty whereupon an Oath was by the Advice of Council of State framed and chearfully taken by those Scotch Gentlemen and generally by all the Nation in Ireland as the Earl conceives to their advantage and the satisfaction of others he believes that some were Sentenced for refusing it but none were otherwise exiled The Earl in his Vote said That he would endeavour that all of that Nation should take that Oath or leave the Kingdom all which was done by His Majesties Direction and Approbation and it was not contrived to the intents in the Article Charged but to prevent their adhering to the Covenanters then in open Arms and not concerning the Ceremony or Government of the Church To the Twentieth he saith That in the Year 1638. the Earl was in Ireland when Preparations were made for War and Summons sent to the Nobility of this Kingdom In the Year 1639. a General was appointed and an Army drawn to the Field and Encamped near Berwick whereby it appears he was not acquainted that the Article of Pacification had been broken on both Sides and so distempered that it was held fit an Army in England should be raised to suppress the Covenanters if the business could not with Honour and Safety be otherwise composed The said Earl humbly advised His Majesty to call a Parliament and used many Motives thereunto after the Parliament was called and before the Sitting thereof ten of the Lords and other of the Council for Forreign Affairs being assembled His Majesty then present an Honourable Person related the Covenanters Demands it was then Voted by all That they were such as might not in Honour and Safety be condescended unto by His Majesty and if they could not be otherwise reduced His Majesty must be constrained to bring them to it by force the like Resolution was after at the Council-Table by twenty of the Council Whereupon His Majesty appointed a Council of War and it was held necessary to borrow 200000 l. upon good Security till the Supplies by the Parliament might come in He never said the Scotch Nation were Rebels but was ever perswaded that many of them are most Loyal Subjects Those that raised Arms when they were at such distance from His Majesty he might say they were no less than Rebels and Traytors by Warrant from the Lord Admiral he caused divers Ships and Goods to be seized but not with an intent to set on the War but as much as in him lay to bring all to fair Accommodation without expence of blood To the 21th he saith The pacification was broken before he came over as in the Answer to the former Article he moved His Majesty for a Parliament in England but not with such intent as in the Article but out of a desire to have settled a right Understanding between the King and His people It may be he said though he remembreth it not that if the Parliament would not Supply His Majesty he would serve His Majesty in any other lawful way being well assured that His Majesty would not imploy him nor any man else in any other kind To the 22th he saith According to His Majesties Instructions he did set forth to the Parliament of Ireland the State of the Affairs as they then stood and they freely gave four Subsidies as an acknowledgment of His Goodness and happy Government as by the Act and Remonstrance appears in Print He by His Majesties Direction then gave Order for the raising of 8000 Men who still remain in the King's pay and were sent into Vlster to secure those Parts or to land in Scotland to divert the Earl of Argile in case he joyned with the Covenanters Army against the King but it was mentioned in the King's Letter 2 Martii 1639. he had purposely given out That they should join with the King's Army at Berwick to colour other Designs but the true cause of their Levying was made known to be as aforesaid unto the Earl of Ormond Sir John Burlace and the Marquiss of Hamilton and Earl of Northumberland at the time of the writing the Letter and he denies the words charged in the Articles or any other words to such intent and purpose To the 23th he saith The matters of the Parliament were no otherwise referred to him than to the rest of the Council that coming sick from Ireland about ten days after the Parliament were set and after the Treaty with the Earl of Dunfermline Lord Lowdon Scotch Commissioners was broken off and the Army preparing and the Parliament not supplying Monies as His Majesty desired His Majesty advised what might move them to prefer His Supply in debate whereof he humbly advised His Majesty by a Message to the House to lay down Ship-Money and promise never to demand it and give way to reverse the Judgment by a Writ of Error in Parliament and to promise a Redress of Grievances when they should be prepared And secondly That they would presently agree upon such Supply as should maintain His Army for reducing the Scots to their Obedience wherein their Safety and His Honour was concerned His Majesty assented conditionally that he might have 12 Subsidies the Earl besought Him that it might not pass as a Condition but to Relinquish Ship-Money and put himself upon their Affections and drew up the Message in Writing and delivered it to Mr. Secretary Vane to deliver to the House of Commons He desired to know if His Majesty would not take less than 12 His Majesty Answered He feared less would not serve His Occasions The Earl of Strafford besought His Majesty to accept of Eight so His Majesty assented and desired Mr. Secretary to signifie so much as occasion should be offered but whether he did so or not the said Earl knoweth not The House of Commons being in debate two days and not Resolving His Majesty about the 5th of May last called a Council at Seven of the Clock in the Morning the said Earl being sick came late and was told as he remembreth by the Earl of Bark-shire the King had declared His Resolution to Dissolve the Parliament the Earl of Strafford besought His Majesty to hear the Advice of His Council and first of those that were Members of the
Rules of Justice He hath taken away mens Inheritances And here My Lords is an offering of Rapine an offering of Injustice and Violence And will God accept such an Offering Must the Revenues of the Church be raised that way It is true it was the more in the way of his own Preferment He knew who sate at the Helme here the Archbishop of Canterbury and such services might win more credit with him It was not an Eye to God and Religion but an Eye to his own Preferment I shall speak no more of that 9. I come to the 9th head and that is the building of Churches Many Churches have been built since his Government Truly My Lords why he should have any Credit or Honour if other men builded Churches I know not I am sure we hear of no Churches he hath built himself If he would have been careful to have set up good Preachers that would have stirred up Devotion in men and made them desirous of the knowledg of God and by that means made more Churches it had been something But I hear nothing of Spiritual Edification nothing of the knowledg of God that by his means hath been dispersed in that Kingdom And certainly they that strive not to build up mens Souls in a Spiritual way of Edification let them build all the material Churches that can be they will do no good God is not worshipped with Walls but he is worshipped with Hearts 10. He saith in the 10th place That many Orthodox and Learned Preachers have been advanced by his means and the Doctrine and Discipline of the Church of England by his means Protected and Defended My Lords I shall give but two or three Patterns of the Clergy that he hath preferred If you will take Doctor Atherton he is not to be found now above Ground For he was hanged for many foul and unspeakable Offences Doctor Bramhill hath been preferred to a great Bishoprick but he is a man that now stands Charged with High Treason he hath been but few years in Ireland and yet hath laid out at least 30000 l. in Purchases I shall name but one Chaplain more and that is one Arthur Gwyn who about 1634. was an Vnder-Groom to the Earl of Corke in his Stable In the year after Dr. Bramhill preferred him to be a Clergy-man and a Parsonage and two Vicaridges Impropriate were taken from my Lord of Corke and given to this Arthur Gwyn I shall add no more Patterns of his Clergy 11. I go to the 11th and that is concerning the Army He hath many glorious Expressions of his Service concerning the Army That they are 1000 Horse and 2000 Foot And that there hath been very few Papists Soldiers or Officers and none preferred by himself Truly I think he says true or within one of true in this for there was but one preferred by himself and therefore I shall not stand upon that But he says this Army was paid out of the Revenue of the Crown which heretofore it was not wont to be To that I have spoken before and shewed that many years before his time all the Charges of Ireland were born within Ireland He says and I speak that as to the Army too That neither the Arms nor Wages have been burdensome to the People of Ireland but their Lodgings and Billettings have not been easie and not without discontent Why My Lords in Dublin it self where they have a Charter that Exempts them from Billetting of Soldiers they have been fain to pay for Billetting of Soldiers Nay those Soldiers that were Servants and Dwellers in his own houses and other places must have their Billetting moneys And of this there hath been Petitions and Complaints nay it hath been spoken of in Parliament there and yet he can tell you that the marching and laying of Soldiers is without burthen and grievance to the People that was the Eleventh 12. I go to the 12th and that is the great increase of Trade The increase of Shipping 100 to one Truly My Lords in a time of Peace and in a growing Kingdom as that was being formerly unhusbanded It is no wonder that when Land encreases in the Manurance and People increase in Number both Shipping and Trade increases But it is the advantage of the time not the advantage of his Government for My Lords his Government hath been destructive to Trade And that will manifestly appear by the multitude of Monopolies that he hath exercised in his own Person And that is all I shall speak to the 12th 13. The 13th is That Justice hath been administred without bribery without partiality without Corruption these are Glorious things But there will as much fall upon him of Corruption and Injustice as of any other Offence And that My Lords will appear to you through the whole Course of our Evidence I shall not now speak of the particulars And that we may not content our selves with particular witnesses only I shall humbly desire That the Remonstrance of the Parliament of Ireland both of the Lords and of the Commons may be read And they will give a sufficient Testimony of the quality of his Justice 14. The 14th My Lords is this That he hath been a Means to His Majesty for a Parliament in England It is true he was And it is as true that we count that as mischievous a part of his design as any thing else Into what a miserable Dilemma My Lords did he bring the Kingdom that we must surrender the Liberties of the Kingdom in Parliament or see them oppressed with Force and Violence out of Parliament The particulars of this I shall leave for the instant for there is an Article that concerns this I have now passed through all the material parts of the Apologetical Preamble He concludes with a desire that he may not be charged with Errors of his understanding or Judgment being not bred up in the Law or with weakness to which humane Nature is Subject Truly it would be far from us to charge him with any such mistakes No My Lords we shall charge him with nothing but what the Law in every man's breast condemns the Light of nature the Light of common reason the Rules of Common Society and that will appear in all the Articles my Colleagues will offer to you My Lords I have some few Witnesses which I shall desire may be heard to the points I have opened and I shall in the first place desire that Sir Pierce Crosby may be heard concerning the Breach of Priviledge in Parliament also Sir John Clotworthy Nich. Barnewell Nicholas Plunket and Sir James Montgomery I have some witnesses to the point of the Revenue Sir Robert Pye Sir Edward Warder and Sir Adam Loftus To all which bitter Invectives the Earl in his occasional replies answered with as much Temper and Moderation as the other spoke with Heat and Passion making his defence with that Vivacity of understanding clearness of Expression and with such a Decency both of
God be praised he met with a Gracious King upon whom he could not prevail and for his bringing the Army into England thô he tells Sir William Pennyman he did not intend it yet there was Vox Populi and that was a horrid Witness That he intended to invade the Property of the People is plain from his own words That the King should make Restitution when the Danger was over and his saying That a Privy Councellor ought not to be questioned for his Counsels was so great a proof of his Actions that he could not give a Greater Then by consent my Lord moving for a dayes interval his Voice and Strength being spent the Court was adjourned till Wednesday Upon Wednesday the Commons proceeded to the 25th Article of the Charge Wednesday April 7. Artic. 25. concerning the Earl of Strafford's advice of Vigorously levying Ship-money and by compulsion Endeavouring to raise money upon the Lord Mayor and City of London and that for their not complying they deserved to be put to Fine and Ransom To this the Lord Treasurer Bishop Williams deposed Lord Treasurer That Ship-money coming in very slowly they were forced to take out great Sums to furnish the Fleet out of the Money provided for the Army and my Lord Strafford said That if it were not repaid the Army would be destitute and therefore advised the Ship-Money might go on vigorously to repay it Sir Tho. Wiseman deposed Sir Thomas Wiseman That the Aldermen being called before their Lordships about the Loan my Lord Strafford said They would never do their Duty well till they were put to Fine and Ransom and to His Majesty You will have no good of this man meaning as he supposes the Lord Mayor till he be laid by the heels but whether about Loan or Ship-money that was spoken he remembers not The Earl of Berkshire deposed Earl of Berks. That the King desiring to borrow Money upon good Security at 8. per Cent. and the Aldermen Excusing themselves for nominating who were able to lend in their several Wards my Lord Strafford said Gentlemen in my Opinion you may be liable to Fine and Ransom for refusing the King's Command in not certifying the Names Sir H. Garaway deposed That being Lord Mayor Sir Henry Garaway he attended the Council about Ship-Money informing His Majesty That the Willing Men had only paid the Money and they thought it unequal others should go free That it was the Opinion of the City That a Writ for Ship-Money and a Writ for a Parliament did not agree and that they found People generally averse to it whereupon my Lord Strafford said to the King Sir you will never do good on this Man till you have made him an Example he is too diffident or to that purpose unless you commit him you shall do no good upon him And about the Loan-Money desiring to be spared in seting a Rate on Mens Estates the Earl said to the King Sir you will never do good of these Citizens of London till you have made Examples of some of the Aldermen to his best remembrance he said Unless you hang up some of them you will do no good upon them this he spake positively The Earl replyed That he would speak with as much Truth The Earl's Defence thô not so much confidence as this Gentleman That he must still insist upon this that admitting it proved it does not amount to Treason nothing being proved but by single Testimonies that as to Ship-money there was a Judgment given in the Star-Chamber and if he was in an Error he was led into it by the practise of the Times and wiser men than himself howbeit he doth not justifie himself in that point being better informed by what he hath heard since is the Judgment of those to whose wisdom he submits That in such a Case of extreme necessity he might hold the Aldermen lyable to Fine and Ransom in case they did not submit to the King's demands he wishes he had not spoken them but being a little Excess of Extravagant Speech he hopes by their Lordships Favour it may be excused and God forbid for every such Excess a man should be Arraigned for Treason for otherwise few would Escape the Danger of hasty words for the words about hanging them up My Lord Major at first said it to the best of his remembrance and afterwards absolutely And he sayes to the best of his remembrance he did not speak them and if he did being spoken in so good Company some of their Lordships would have remembred them And however it stands with him now before these misfortunes befel him he was equally to be Credited with this Gentleman all the difference being one sayes it the other denies it and that at most being a hasty word and excusable in a free spoken man as he was and who smarts for it he hoped their Lordships Honour and Justice will rather Excuse then punish it Mr. Maynard replyed Managers Reply The Committee shall need to say little to this Answer but that such words compared with his other words and Actions proceed not from passion but Principles to do all things by his Will against Law and that my Lord knew these things and especially the Ship-money were against Law himself having so great a hand in the Petition of Right Mr Glyn added That whereas my Lord thinks it hard to be questioned for hasty words as High-Treason their Lordships may remember how for words concerning Treading on his Toe he prosecuted the Lord Mountnorris as far as to Life They next proceeded to the Charge in the 26 Article Artic. 26. concerning seizing the money in the Mint and Embasing of Coyn. To prove this Robert Edwards sworn Rob. Edwards deposed That going to represent to him the Inconvenience of the seisure of their Money in the Tower and that some Forreigners being concerned in it the Merchants Estates abroad upon their Complaint would be seized my Lord answered That if they fared amiss they might thank themselves and though they think it so strange here yet beyond Sea it is not so but on Commands men have their Goods taken and touching the City he said They dealt unthankfully with the King there being 14000 l. due for Ship-money which they denied and did more to maintain Rebels than to maintain his Majesty Being bid repeat it he said upon their Petition to my Lord about the Money in the Tower the Earl said That if they did speed amiss they might thank themselves for they were more ready to hold with Rebels than to give the King his due which was 14000 l. Ship money that my Lord was sick and sate in his Chair said That he knew nothing of it till that morning Anthony Palmer sworn Ant. Palmer deposed That in discourse with my Lord about base money and giving him reasons against it he shewed him and the other Officers of the Mint a Letter sent him out of France
is the 22d Article and these be words spoke in England The first part of them which concerns the bringing in of the Irish Army I have spoken to already but in the conclusion there are other words and shortly the said Earl of Strafford returned to England and to sundry persons declared his opinion to be That His Majesty should first try the Parliament here and if that did not supply him according to his occasions he might then use his Prerogative as he pleased to levy what he needed and that he should be acquitted both of God and Man if he took some other courses to supply himself though it were against the will of his Subjects My Lords as unto this I conceive the Charge is not proved by any Witness that hath been here produced against me and in truth my Lords I must needs say this under favour if it be an error in my Judgement I must humbly crave your Lordships pardon through the whole Cause I have not seen a weaker proof and if I had had time to have gotten my Witnesses out of Ireland I hope that should be proved and so clearly as nothing could be proved more but I must stand or fall to what I have proved and so I do my Lords the proof they offer for this as I conceive is the Testimony of my Lord Primate and his Testimony is That in some discourse betwixt us two touching Levying upon the Subject in case of imminent necessity he found me of opinion That the King might use his Prerogative as he pleased My Lords this is under favour a single Testimony it is of a discourse between him and me and there is not any other that witnesses any thing concerning it so that under favour my Lords I conceive this will not be sufficient to bring me any ways in danger of Treason being but a single Testimony and my Lords it is to be thought and to be believed and it were a great offence for any man to think otherwise that in this case any thing can please the King he is so Gracious and Good but what shall be Just and Lawful and then there is no doubt but so far as with Justice and Lawfulness he may use his Prerogative in case of imminent danger when ordinary means will not be admitted At most he saith it was but an opinion and opinions may make an Heretick but they shall not I trust make a Traitor The next is the Testimony of my Lord Conway and the words that his Lordship testifies are these That in case the King would not be otherwise supplyed by Subsidies he might seek means to help himself though it were against the will of his Subjects Truly my Lords if I should acknowledge these words I do not see how they can be any way Capital in my case but this again is but a single Testimony and there is no other that says it but himself and if there be a good sense given to them certainly the words may very well bear it for I think it is a very natural motion for any man to preserve himself though it be to the disliking of another and why a King should not do it as well as a Subject it is such a prerogative of Kings as I never yet heard of for I thought though they had been Gods on earth yet they are men and have affections as men and should preserve themselves being not only accountable for themselves to God Almighty but also for their Subjects whose Good and Benefit is wrapt up and involved in theirs and therefore the King ought more to regard his own preservation than the Common-wealth The Third is That Mr. Treasurer says that to his best remembrance I did say That if the Parliament should not succeed I would be ready to assist His Majesty any other way God forbid this should be any offence for to say so either in him or me for I will swear if it please you that he said so as well as I therefore God forbid it should endanger either of us both for my Lords to say I will serve the King any other way it is no other than what became a good and faithful servant to do always provided the way be good and lawful which in this case is always to be admitted among persons of Honour and persons of Trust and therefore admitting it not any other way it was just and lawful and commendable in Mr. Treasurer and me for I vow to your Lordships we both said it and he as fully as I. But my Lords all these come very far short to prove the words of the Charge and this under favour is all the proof as I have taken that I should say these words before the Parliament The next words I am charged withal are in the 23 Article and those my Lords are that having tryed the affections of his people His Majesty was loose and absolved from all Rules of Government and was to do every thing that Power would admit and that His Majesty had tryed all wayes and was refused and should be acquitted both of God and man For the latter part that concerns the reducing of this Kingdom by the Irish Army I have answered already and therefore shall not need to repeat it My Lords mine Answer under favour to those words with your Lordships Noble permission must be thus That they are no way proved in the most material part of them by any Testimony that hath been offered I shall as near as I can repeat the proofs that were offered on this point for these Articles were brought in four or five together but I shall apply the proofs severally and distinctly The Testimony first given was the Testimony of the Lord of Bristol wherein his Lordship says That in a discourse there was difference betwixt his Lordship and me in some Tenents of ours To which I answered the other day that in discourse we speak not always the things we think but many times to gain from other mens arguments to strengthen me in my opinion I will seem to be of the contrary This is ordinary and familiar in all conversation and very honest and just so that albeit we seem to differ as we held it severally yet if the pulse of our hearts had been touched close both his and mine perhaps we should have found it one and the same Besides his Lordship said I disliked not the discourse we speaking of another Parliament only I said it was not convenient at that time and that the present dangers would not admit a remedy of so long consideration and that the King must provide for the Common-wealth Et salus populi suprema lex And truly My Lords I think that it is very hard any man should upon such a discourse have his words turned upon him and made use of to condemn him for High-Treason My Lords I know you are so just that you would judg me as you would be judged your selves and whether any Man that hears
Treasons are commited in Ireland therefore not tryable here Answ My Lords Sir John Parrot his Predecessor 24 Ed. was tryed in the Kings-Bench for Treason done in Ireland when he was Deputy and Oruche in the 33 year of Queen Elizabeth adjudged here for Treason done in Ireland Object But it will be said these Tryals were after the Statute of the 34th year of Henry the 8th which Enacts that Treasons beyond Sea may be tryed in England Answ My Lords his Predecessor my Lord Gray was tryed and adjudged here in the Kings-Bench that was in Trinity-Term in the 33 year of Henry the 8th this was before the making of that Statute Object To this again will we say That it was for Treason by the Laws and Statutes of England that this is not for any thing that 's Treason by the Law of England but an Irish Statute So that the question is only Whether your Lordships here in Parliament have cognizance of an offence made Treason by an Irish Statute in the ordinary way of Judicature without Bill for so is the present question For the clearing of this I shall propound two things to your Lordships consideration Whether the Rule for expounding the Irish Statute and Customs be one and the same in England as in Ireland That being admitted whether the Parliament in England have cognizance or jurisdiction of things there done in respect of the place because the Kings Writ runs not there For the first in respect of the place the Parliament here hath cognizance there And Secondly If the Rules for expounding the Irish Statutes and Customs be the same here as there this exception as I humbly conceive must fall away In England there is the Common Law the Statutes the Acts of Parliament and Customs peculiar to certain places differing from the Common-Law If any question arise concerning either a Custom or an Act of Parliament the Common-Law of England the First the Primitive and the General Law that 's the Rule and Expositor of them and of their several extents it is so here it is so in Ireland the Common-Law of England is the Common-Law of Ireland likewise the same here and there in all the parts of it It was introduced into Ireland by King John and afterwards by King Henry 3. by Act of Parliament held in England as appears by the Patent Rolls of the 30 year of King Henry 3. the first Membrana the Words are Quia pro Communi Vtilitate terrae Hiberniae unitate terrarum Regis Rex vult de Communi Concilio Regis Provisum est quod omnes Leges Consuetudines quae in Regno Angliae tenentur in Hibernia teneantur eadem terra eisdem legibus subjaceat per easdem Regatur sicut Dominus Johannes Rex cum ultimò esset in Hibernia statuit fieri mandavit quia c. Rex vult quòd omnia brevia de Communi Jure quae currunt in Anglia similiter currant in Hibernia sub novo sigillo Regis mundatum est Archiepiscopis c. quod pro pace tranquilitate ejusdem terrae per easdem leges eos regi deduci permittant eas in omnibus sequantur in cujus c. Teste Rege apud Woodstock Decimo nono die Septembris Here is an union of both Kingdoms and that by Act of Parliament and the same Laws to be used here as there in omnibus My Lords That nothing might be left here for an exception that is That in Treasons Felonies and other capital offences concerning Life the Irish Laws are not the same as here therefore it is enacted by a Parliament held in England in the 14th year of Edw. 2. it is not in print neither but in the Parliament Book that the Laws concerning Life and Member shall be the same in Ireland as in England And that no exception might yet remain in a Parliament held in England The 5th year of Edw. 3. it is Enacted Quod una eadem Lex fiat tam Hibernicis quam Anglicis This Act is enrolled in the Patent Rolls of the 5th year of Edw. 3. Parl. membr 25. The Irish therefore receiving their Laws from hence they send their Students at Law to the Inns of Courts in England where they receive their Degree and of them and of the Common Lawyers of this Kingdom are the Judges made The Petitions have been many from Ireland to send from hence some Judges more learned in the Laws than those they had there It hath been frequent in cases of difficulty there to send sometimes to the Parliament sometimes to the King by advice from the Judges here to send them resolutions of their doubts Amongst many I 'll cite your Lordships only one because it is in a case of Treason upon an Irish Statute and therefore full to this point By a Statute there made the fifth year of Edw. 4. there is a provision made for such us upon suggestions are committed to prison for Treason that the party committed if he can procure 24 Compurgators shall be bailed and let out of prison Two Citizens of Dublin were by a Grand-Jury presented to have committed Treason they desired benefit of this Statute that they might be let out of prison upon tender of their Compurgators The words of the Statute of the 5th year of Edward 4th in Ireland being obscure the Judges there being not satisfied what to do sent the case over to the Queen desired the opinion of the Judges here which was done accordingly The Judges here sent over their opinion which I have out of the Book of Justice Anderson one of the Judges consulted withal The Judges delivered their opinion upon an Irish Statute in Case of Treason If it be objected That in this Case the Judges here did not judge upon the party their opinions were only ad informandam Conscientiam of the Judges in Ireland that the Judgment belonged to the Judges there My Lords with submission this and the other Authorities prove that for which they were cited that is that no absurdity no failure of Justice would ensue if this great Judicatory should judge of Treason so made by an Irish Statute The Common-Law rules of Judging upon an Irish Statute the Pleas of the Crown for things of Life and Death are the same here and there this is all that yet hath been offered For the Second point That England hath no power of Judicature for things done in Ireland My Lords the constant practice of all ages proves the contrary Writs of Error in Pleas of the Crown as well as in Civil Causes have in all Kings Reigns been brought here even in the inferior Courts of Westminster-Hall upon Judgment given in the Courts of Ireland the practice is so frequent and so well known as that I shall cite none of them to your Lordships no president will I believe be produced to your Lordships that ever the Case was remanded back again into Ireland because the question arose upon an
existit at quod in Recordo illo in nullo est errat ' Ide◠Consideratum est quod judicium predictum in omnibus affirmetur in omnibus suo robore effectu stet remanet dicta Causa pro Errore superius assignat ' aut allegat ' in aliquo non obstante super quo Record processum predict ' necnon process ' predict ' Curia Parliamenti ibidem in premissis habit ' è predict ' Curia Parliamenti coram Domino Rege ubicunque c. per predict ' Cur ' Parliamenti Remittentur ac predictus Carolus in Curia Domini Regis coram ipso Rege habeat Executionem judicii predicti versus prefatum Thomam juxta formam effectum judicii illius predict ' Breve de Errore super ' inde non obstante Subscribed by the Clerk of the Parliament and delivered to the Defendant in the Writ of Error 29 May 1641. to be remitted into the King's-Bench that Execution may be had upon the Judgment Mr. Monday May 31. Bills for taking away the Court of Sear-Chamber and regulating the Council Board ingrosted Tuesday June 1. Votes about the Petty Farmers of the Customs Prideaux reports the Bill for taking away the Jurisdiction of the Court of Star-Chamber as being contrary to Law and tending to the bringing in of Arbitrary Government as also a Bill for regulating the proceedings of the Council-Board upon which they were ordered to be ingrossed The House fell this day upon the business of the petty Farmers of the Customs Sir Nicholas Crisp Sir John Nulls Sir John Harrison c. and upon the Debate it was Resolved c. That the Petty Farmers of the Customs taking above three pence in the pound of Merchants Strangers and others of the King's Subjects more then by Law allowed is Illegal Resolved month June 1641. c. That the said Petty Farmers for taking above the said three pence in the pound are Delinquents Resolved c. That the said Petty Farmers are for the said offence liable and ought to make restitution Notwithstanding which in favour of Sir John Harrison Resolved That Sir John Harrison a Member of the House in regard of his great service in advancing fourty thousand pounds shall not be prejudiced as to his sitting in the House Sir John Strangeways moved in the behalf of himself and the 59 that Voted against the Bill of Attainder of Thomas Earl of Strafford that there might be some order taken for their security for that they went in fear of their Lives daily affronts and great abuses being put upon them by licentious people who resorted about the Parliament House But these mighty asserters of the Priviledges of Parliament one of the greatest whereof is freedom of Speech and liberty to Vote according to a Man's Conscience thought not fit in this Case to assert their Priviledge but to leave these worthy Gentlemen at the mercy of the Rabble who were by no means to be disobliged there being further occasion to make use of their Tumultuary Insolence in order to their thorough Reformation This day Mr. Tayler presented his Petition Wednesday June 2. desiring to be restored upon his submission but it was rejected A Debate arising about ways for raising of Mony a Motion was made Motion to bring in Plate to be Coined That in regard Mony could not be procured so suddenly as the present necessity of Affairs required there might be some Expedient thought on to bring in the Plate of the Kingdom to the Mint and it was referred to a Committee to consider of it and what way it might be done The Bill for Regulating the Clerks of the Market being Reported Bill for the Clerk of the Market ingrossed Thursday June 3. Report of the Conference with the Lords about the Bishops Bill was Ordered to be Ingrossed Mr. Pierrepoint Reports the Conference with the Lords concerning the Bill for disabling Bishops to Vote in the House of Peers That their Lordships conceive that the Commons understand not unlawfulness to have any Votes there to mean to be contrary to any Law but of convenience or inconvenience because if they had thought it absolutely unlawful they would not have made Exception of the Vniversities and of such of the Nobility as should happen to be in Holy Orders And for the Bishops Right to Sit and Vote in Parliament their Lordships conceive that both by the Common Law Statutes and constant practice there is no question of it As for inconveniencies their Lordships did not yet Vnderstand any such that might induce them to deprive the Bishops and their Successors of the Right of voting in Parliament but if there be such which they yet know not they will be willing to hear them and take it into Consideration For their Votes in the Star-Chamber Council Table or any Office in Secular Affairs they have fully consented to the desires of the Commons Their Lordships have Excepted the Dean of Westminster as being a Corporation confirmed by Act of Parliament Sexto Eliz. As also that of Durham Ely and Hexam and the several Jurisdictions of those Bishops to keep Courts-Baron there by their Stewards c. And all other Courts Executed by Temporal Officers which their Lordships conceive not to be contrary to this Bill After which the Bill for disarming Recusants being reported Bill for Disarming Recusants ingrossed Bill against New Canons Read first time was ordered to be ingrossed Then a Bill for the making void of certain Canons and Constitutions Ecclesiastical lately made and for the punishment of such Prelates and others as were the framers and makers of them was read the first time The House then Entred upon the consideration of the Scottish Articles some of which were assented to Sir Thomas Widdrington reports the Case of Sir John Corbet Friday June 4th Report of Sir John Corbet's Case upon which these Votes passed Resolved c. That the Imposition of 30 l. per annum laid upon the Subjects of the County of Salop for the Muster Masters Fee by the Earl of Bridgwater Lord Lieutenant of that County is an Illegal Charge and against the Petition of Right and that it is high presumption for a Subject to impose any Tax upon the Subject and that the taking it is at Extortion against the Right of the Subject Resolved c. That the Attachment from the Council Board by which Sir John Corbet was committed was an Illegal Warrant Resolved c. That Sir John Corbet ought to have Reparation for his unjust vexation and imprisonment Resolved c. That the Earl of Bridgwater ought to make Sir John Corbet reparation Resolved c. That the House thinks sit that the Attorney General take the Information in the Star-Chamber against Sir John Corbet off the File and that he take some Course that the Bond which he entred into to attend the Suit at the Hearing be delivered unto him Resolved c. That the Lords
more cause to do well and for doing well are more renowned for the most oppressive designs which we have suffered under the pretences of his Majesty have ever bin the good of his Subjects His is the sin that is to judge by the Laws and knows the Laws are to the contrary yet puts and confirms such thoughts in his Prince He that incites another to Arbitrary Government when his self-ends are thereby compassed hates him for taking that Power he perswaded him unto The Writs those Monsters of Necessity to provide Ships to prevent Imminent Danger that could not stay 40 dayes for the Calling of a Parliament were therefore to go out in September to have Ships ready in March This hath bin adjudged by your Lordships to be destructive to the Fundamental Laws of this Realm and to the Subjects right of Property and Liberty c. that I shall say but this concerning them That this Judge published them to be inseparable Flowers of the Crown And that we have lived to see for five years together imminent Danger and thus to be prevented This Judge did advise to such a Government as future Kings here might exercise the highest Tyranny and the Subjects want the benefit of restraints known to the most Slavish Eastern Nations where if their Prince do unjustly he hath hatred for it and the Dangers that follow that This Judge will have that hatred to go to our good Laws No such Bondage as when Laws of Freedom are mis-interpreted by Judges to make men Slaves What can be considered of in a Judge of Law to give his Opinion and Advice to his Prince how the Laws the mutual Covenants of Kings and Subjects are to be broken but that his intentions are to have his Prince do ill by making his evil Servants to study and to be pleaâ—â—d with their wicked designs because they see means to put them in execution by making them to perswade their Prince because in imminent Danger his Subjects Goods are at his Will that there is such danger when there is not and they only have some by-end of their own A Judge to deliver his Opinion That if the King should intend to give up his People to be destroyed by Forraign Forces for the Safety of the people in that imminent Danger once by the Law might take away the King there could be no greater Offence This Judge will have our Law to be what to him seems reason the reason limited to him to judge of is what the Common Law saith is so what a Statute hath so Enacted For him to judge this or that is Law else a mischief shall follow is at best for him but this because the Law in such a thing is imperfect therefore he will make a Law to supply it or because that the Law written in such particulars is against his reason therefore his reasons to be Laws then must follow as often as a Judge's Reason changes or Judges change our Laws change also Our Liberties are in our Laws where a Subject may read or hear read this is his this he may do and be safe and that thus the Judge ought to give Judgment he is free The Excessive growth of Courts of Reason Conscience came from great and cunning persons and though not the most sudden yet the most dangerous and sure ways to eat out our Laws our Liberties Unlimited power must be in some to make and repeal Laws to fit the dispositions of Times and Persons Nature placeth this in common consent onely and where all cannot conveniently meet instructeth them to give their consents to some they know or believe so well of as to be bound to what they agree on His Majesty your Lordships and the Commons are thus met in Parliament and so long as we are often reduced to this main Foundation our King and we shall prosper This Judge will not allow us our Knowledg or any Reason he will have our Minds our Souls Slaves A Grand-Jury-man gave his Fellows true Information they present an Innovation in the Church are threatned and reviled for it he that told this Truth is charged I shall use this Judge's own words to sin in that and that he made others forswear themselves This Judge sent him to the Common Goal where he is laid in Irons and all this because he and they durst meddle with Church-Matters He is forced to tear the Presentment in pieces in open Court Our Laws provide for the peace of our Consciences many Acts of Parliament are for it and the Trust by those Acts set to Juries this Judge well knew all this Your Lordships have heard what he did to the Jury at Hartford He would have us know no more Divinity then to obey what the Great of the Clergy directed no more Law than what he said was so Judges in former times but only such as were Examples of punishment as of injustice in cases of great and publick concernment forbare proceedings till the next Parliament This necessitated the Calling of Parliaments This Judge had as many such Causes before him as ever any had yet he never desired the Resolution of Parliament in any one for the ways he went the necessity was never to have a Parliament he would pull up that Root of our Safeties and Liberties which whilst we enjoy the Malice or Injustice of all other Courts and Persons can never ruine and when near to Ruin as most near of late this only sure Remedy will help us nothing can ruine a Parliament but it Self The Evils which we have suffered under they were committed by the Judges month June 1641. or by them ought to have been and might have been prevented This Judge assisted in causing the Miseries we suffered in the Star-Chamber and at the Councel-Table he denyed the known Rights which he ought to have granted us to stop our Grievances in the Ecclesiastical Courts he was the causer of our Sufferings in other Courts The best Lovers of their Laws and Liberties the most Honest suffer most by an unjust Judge they most oppose his Vices dishonest persons find such a Judge to fit their purposes the Judge finds them for his the bond of iniquity confederates them He that will do no wrong will suffer none which he can help the man that knows himself born free will do his utmost to live so and to leave Freedom to his Posterity were he in Slavery when by outward gesture thought to be most delighted were his mind then known there would be found vexation and his busie thoughts employed to redeem himself and his Posterity from Thraldom But to say Could this Judge intend to make himself and his own Posterity Slaves What he did was through errour of Judgment only No my Lords what his Ayms and Endeavours were is apparent To consider Man in the general we shall find in every Age he will be a Slave to some few that many may be Slaves to him he looks to himself only this he would do or
particular Trespasses upon the Law By Impositions and Taxes upon the Merchant in Trade by Burdens and Pressures upon the Gentry in Knighthood before they could Arrive at that Universal destruction of the Kingdom by Ship-mony which promised Reward and Security for all their former Services by doing the work of a Parliament to His Majesty in Supplies and seemed to delude justice in leaving none to judge them by making the whole Kingdom party to their oppression My Lords of this Crime these Three Judges seem to be at least equally guilty for however one of them my Lord Chief Baron is not charged with that Judgment in the Exchequer-Chamber against Mr. Hampden and how he fail'd in making his Conclusion from his own Premisses he only can inform you Your Lordships see how quickly he repented that that mischief was done without him there by his overtaking his Brethren in his Circuit and as he said of the vilest kind of flatterers Crudelissimo servitutis genere quod intra se abominabantur palam laudabant He made all possible haste to redeem himself from that imputation of Justice and declared publickly in the face of the Country that it was adjudged by all the Judges of England that Ship-mony was due to the King though I believe he will be now glad to be thought none of those Judges And what others did he well knew and thereupon Imprisoned a poor man for doing that which if Ship-mony had been due to his Majesty by Magna Charta had been lawful for him to have done Of the resolutions and judgment it self I am not to speak your Lordships have passed your noble judgment My Lords the first Charge in order is that presumptuous Decree against Mr. Rolls and others And in truth whatsoever gloss they put upon it is no other than a plain grant of the Subsidy of Tonnage and Poundage to His Majesty upon all Merchandise after their Goods seised for non-payment of that pretended duty the Proprietors brought Replevins which is the natural and genuine remedy appointed by Law in case of Property and grounded upon Property the Court Awards an Injunction to stay these Replevins the Goods were in the King's possession and no Replevin would lye against the King Truly my Lords the injustice here is not so scandalous as the fraud we all know a Replevin as no other suit lyes against the King if the Goods be in his own hands in his Bed-Chamber But to call a seifure by the Farmers of whose interest this Court will not deny the notice and if his Majesty had any right they well knew he had transferred it to these men or the Ware-houses of the Customers the King's possession to defeat the Subject of his proper remedy was the boldest piece of Sophistry we have met with in a Court of Law Pardon me if I am transported The Civilians say Tutor Domini loco habetur cum rem administrat non cum pupillum spoliat The Office of Judges is to preserve and give remedy for right here they found a right a known and unquestionable right yet instead of assisting took away the remedy to preserve that right What shall we call these Judges My Lords in this Argument I am not willing to say much 't is enough that your Lordships know Tonnage and Poundage is not a duty to the Crown but a Subsidy and so granted in subsidium sometimes pro una vice tantum sometimes for years and then ceased when the time did expire that when it was first granted for Life it was with this Clause Ita quod non trahatur in exemplum futuris Regibus But 't is abundantly enough that his Sacred Majesty cannot be tainted with the advices and judgments of these Men but looks on this duty singly as the meer Affection and Bounty of his Subjects the which no doubt he shall never want My Lords The next Charge is concerning Impositions Mr. Vassal's Goods are seised for not paying Impost which he conceived to be against Law he is Imprisoned and Judgment given against him without suffering him to be heard upon the point of Right because that had been heretofore judged in Bates's Case And yet these very Judges have not thought themselves so bound up by former judgments but that since this time they have argued a Case upon the same point which was adjudged in Hillary Term in the 15 Elizabeth and confirmed after by all the Judges of England in a Writ of Error in the 21 year of that Queen's Reign 't is Walsingham's Case however the same modesty seised them again in the Case of a Noble Lord not now present Whether the King without assent of Parliament may set Impositions upon the Wares and Goods of Merchants is no question it hath been more then once debated in Parliament and indeed whilst it was a question was fittest for a Parliament I will not trouble your Lordships long 't is now resolved and nothing new can be said in this Argument though I may have leave to say if the King can by his Letters Patents create such a right to himself and by a Legal Course recover that right under such a Title such Letters-Patents are in no degree inferiour to an Act of Parliament To reconcile such a power in the Prince and the property of a Subject that the one must not be destructive to the other will require a much greater a subtler understanding then I pretend to But my Lords I do not think the judgment in this point to be so great a Crime in these Judges as that they presumed to judge at all the matter had been long debated in Parliament undetermined and therefore not within the Conusance of an inferiour Court had it not been true that Fortescue says in his 36 Chapter of the Laws of England Neque Rex per se aut Ministros suos tallagia subsidia aut quaevis onera alia imponit c. sine concessione vel assensu totius Regni sui in Parliamento suo expresso c. If the Statute de Tallagio non concedendo If the 30 Chap. of Magna Charta and all the other Statutes to that purpose be not clear in the point they might easily have apprehended so much weight so much difficulty in the question especially since in all our Law-Books not so much as the word Imposition is found untill the Case in my Lord Dyer of 1 Eliz. fol. 163. that they might very well have suspected themselves to be no competent Judges for that determination and I hope by the experience of this Parliament the Judges will recover that Ancient modesty to believe that some Cases may fall out that may not be properly within their Jurisdiction in the Ninth year of Edward the second 't is in the Parliament Rolls It being found by an Office after the death of Gilbert de Clare Earl of Gloucester that his Sisters were his Heirs nisi Comitissa Glocestriae esset pregnans the question was Whether the King might grant
He brings several undeniable Presidents and Instances In the 21 of R. 2. a Repeal of a former Sentence against the Spencers being Petitioned for in Parliament Rot. 55.56.21 R. 2. these Errors were assigned Because the Prelats Who are Peers of the Realm did not Assent to the Judgment and because it was made only by the Earls and Barons Peers of the Realm c. And because it was made against the Great Charter of England in which it is contained that no man shall be exiled or destroyed but by the Lawful Judgment of his Peers or by the Law of the Land By which it appears that the Judgment of that Parliament was That it was a Breach of the Magna Charta for the Temporal Lords to condemn a Peer without the Assent of the Bishops who are expresly declared to be Peers of the Realm Rot. 55. To be Peers in Parliament Rot. 56. and to be Peers of the Realm in Parliament Rot. 61. And all this too in the Case of Treason which is as a full Declaration of their Peerage as it is possible to make To the Second Position That they have a Right to Sit and Vote in Parliament in all Causes whatsoever even in Causa Sanguinis in Capital Cases which he proves by Reason and Presidents That by the Magna Charta a Law of the Highest value Confirmed by Thirty Acts of Parliament and with the most Solemn and dreadful Imprecations upon whosever of them or their Posterity should go about to violate it in any particular the Bishops have an equal Right with the Temporal Lords That they Sit in Parliament by the virtue of the same Writs of Summons that the other Barons do they are Summoned to Advise and Debate about the great and difficult Affairs of the Kingdom cum Praelatis Magnatibus Proceribus dicti Regni nostri Angliae colloquium habere tractatum Of all things indefinitely that shall be brought before them in that High and Honourable Court the Supream Judicature of the Nation and that there cannot be any Instance produced of a Writ of Summons with a Limitation or Restriction upon the Bishops excluding them from any matter of Debate Consultation Vote or Judicature belonging to the House of Lords The Temporal Barons also are Summoned indefinitely to Debate Handle and Consult with the Prelats in all things there to be done which would be impossible if in some of the most Important matters in point of Judicature the Lords the Bishops must be Totally Excluded That though the Constitution of Clarenden be urged as designed for a Limitation of the Bishops exercising Jurisdiction in the Case of Life or Mutilation of Members yet it is evident both from the Words and the occasion of that Law that they ought to be present for that this Constitution of Clarendon was made perfectly to oblige the Bishops to serve the King in the Capacity of their Temporal Baronies sicut caeteri Barones the Tenure being the same Et sicut Barones caeteri debent interesse Judiciis Curiae Regis cum Baronibus usque perveniatur in Judicio ad diminutionem Membrorum vel ad mortem the plain Sense of which words is that they ought to be present not only till such Causes of Life or Limb came before the rest of the Lords but at all preliminary Debates usque perveniatur not ad Judicium but in Judicio which supposes a Trial preceding till the Sentence came to be pronounced Now the occasion of this was the Papacy was then erecting their fifth Monarchy and indeavouring to set up an Independent Jurisdiction of the Church in all Kingdoms which the Kings very well perceiving were resolved to oppose and therefore to oblige them to this Service by vertue of the Tenures of their Temporal Baronies And this giving them a Concession to withdraw when the Sentence â—â—as pronounced was a particular favour of the King Thomas Becket a great Saint and Martyr in the Roman Calendar stoutly opposed this as an inchroachment upon the Liberties of the Church and indeed the Bishops who had all along the Saxon Government sate in the great Councils by virtue of their Spiritual Capacity there being then no Temporal Baronies they thought the Conquerors imposing this Tenure upon their Estates a very hard Servitude and Badge of Slavery to the Secular Power but that notwithstanding their Reluctancy this Salvo seemed a little to qualify the matter so that they did Vote in such Cases till the Sentence came to be pronounced appears from Petrus Blesensis who taxes them of Collusion for submitting to this Constitution of Clarendon Principes sacerdotum saith he Seniores Populi Pet. Blesen de Inst Epic. p. 454. licet non dictent Judicia Sanguinis eadem tamen tractant disputando disceptando de illis seque ideo imnunes à Culpa reputant quod Mortis aut truncation is membrorum judicium decernentes á pronuntiatione duntaxat Executione Penalis Sententiae se abstinent Although saith he they do not give Judgment in Cases of Blood yet do they handle treat and debate about them and think themselves innocent because in the determinations of Cases of Life and Limb they absent themselves at the pronouncing or execution of the Penal Sentence This Statute of Clarendon was made in February and in the October following the King Summons a Parliament to Northampton Fitz. Steph. vit Tho. Becket de Concil apud Clarendon Mss in Bibliotheca Cottoniana in which Becket in which Becket was for opposing this Constitution wasting the Kings Treasure and other Crimes accused of Treason in the Debate whereof the Bishops Sate with the other Barons and because the matter did not come to a Sentence of Death after great Debate between the other Lords the Bishops about pronouncing the Sentence the Bishop of Winchester did it But Becket making an Appeal to the Pope the Bishops being afraid of him they endeavoured to persuade the King to desist his further prosecution till that matter was determined But the King being resolute pressed them to their Duty notwithstanding Beckets Prohibition to them to the contrary from the obligation of the Statute of Clarendon to which they had Sworn Asserens quod non teneat haec ejus simplex Prohibitio contra hoc quod Clarendoniae factum initum fuerat affirming that this single Prohibition of Beckets could not bind them against what was done and agreed to at Clarendon From all which it is plain that in fact the Bishops did Debate and Vote in a Capital Case and were obliged by this Statute so to do and it was a Favour indulged them to be absent at the giving of the final Judgment or Sentence of Death or loss of Limbs In the 5. H. 4. The Earl of Northumberland was in Parliament Impeached of Treason Rot. Par. n. 17.5 H. 4. and after Examination of the whole matter he clearly acquitted himself of the charge upon which it is said in the Record Et
my Lords the Grave Judicious and Mature Examination and deserved Punishment of these Traiterous Proceedings will speak these times as glorious to Posterity in their Information as they are now Lamented in their Persecution The Blood-Thirsting Sword of an Hostile Enemy by a timely Union and a defensive Preparation may be prevented The thin-rib'd Carcass of an universal Famine may have his Consumption restored by a supply from our Neighbouring Nations The quick spreading Venom of Infectious Pestilence may be prevented by Antidotes and qualified by Physical Remedies But this Catholick Grievance like a Snake in the most verdant Walks for such are the unblemished Laws truly practised stings us to Death when we are most secure and like the King's-Evil can only be cured by his Majesties free and gracious Permission of our Modest and Gentle Proceedings for his Vindication and our Preservation therein concluded Spencer and Gaveston who have left their Names monumentally Odious for the Evil Counsel they fed the King's Ear with yet did possibly Advantage their own Friends while these dart their Envy and Treason for a common Center equally touching the Bounds of every Superficies for as concerning the valid Estates they have Illegally overthrown when the Laws by your Lordships Industry receive their Native Vigor they will re-assume their Confirmation but the Estates happily in themselves Legal that they have in an extrajudicial Form established will haste as speedily to their Dissolution so that Judas-like they betray their best Friends with a Kiss My Lords I cannot find any surviving Chronology of times this Season to be paralell'd with all Circumstances which makes me view the Records amongst the Infernal Spirits to find if match't there I might extenuate their Facts where first they appear like the False Spirit sent into the Mouth of the Prophet to Ahab to speak Delusions to subvert the Host of God The most Vehement and Traiterous encounter of Sathan is lively deciphered in the true example of Job where first I observe the Dismology he overthrows not Job's Magna Charta he disseizes him not of his Inheritance nor disposses him of his Leases but only disrobes him of some part of his Personal Estate when he proceeds to infringe Job's Liberty he doth not Pillory him nor cut off his Ears nor bore him through the Tongue he only Spots him with some Ulcers here Sathan staies when these Persons by their Traiterous Combinations Envy the very Blood that runs unspilt in our Veins and by obtruding bloody Acts damn'd in the last Parliament will give Sathan size ace and the Dice at Irish in inthralling the Lives of the Subjects by their Arbitrary Judicature I would not My Lords be understood to impute to the Judges an infallibility of Error nor in Impeaching these to traduce those whose Candor and Integrity shine with more admired Lustre then their white Furrs who like Trophies of Virgin-Justice stood fixed and unmov'd in the rapid Torrent of the Times while these like Straws and Chips plai'd in the Streams until they are devolved in the Ocean of their deserved Ruine No My Lords humanum est errare and the Law allows Writs of Error and Arrest of Judgment but where there is crassa ignorantia against their Oath against the Fundamental Elementary and known Laws of the Kingdom Nay My Lords where it is rather Praemeditata Malitia where there is an emulating Policy who should raze and embesel the Records in the Pratick that are for the Tender preservation of our Liberties Estates and Lives seeking only to be glorious in a National Destruction as if their Safety were only involved in our Ruine there I have command to Pitty but not excuse them To kill a Judg Quatenus a Judg is not Treason but to kill a Judg sitting in the Place of Judicature is Treason not for that the Law intends it out of any Malice against the Party but for the Malice against the Law where then can an Intensive or an extensive Malice be exprest or implyed against the Law then the Practical Dialect of these Persons impeach't speaks with a known and crying Accent The Benjamites slang Stones with their left Hands yet they would not miss a Hairs breadth these extrajudicial Proceedings are slung with the left I mean they are Sinistrious and imprint their black and blew Marks more certain and more fatal for that they may say Quae regio in terris nostri non plena laboris Though these things be familiar unto us yet I cannot but admire how this unproportionable Body of Judicature should swell up into such a vast and ulcerous Dimension but why should I considering this excentrick Motion of the Body of the Law had his Birth obscure resembling the Tares that were sowed in the Night time but here is the difference they were sown by the Enemy in the absence of the Master But these are Sown by the Grand-Masters themselves purposely to over-top and choak the expected Harvest Innovations in Law and consequently in Government creep in like Heresies in Religion slyly and slowly pleading in the end a Sawcy and Usurp't Legitimacy by uncontroul'd Prescription My Lords this is the first sitting and I have only chalked out this deformed Body of High Treason I have not drawn it at length lest it might fright you from the further view thereof in Conclusion it is the humble desire of the Commons That the Parties Impeached may be secured in their Persons Sequestred from this House from the Counsel-Table and all Places of Judicature as being Civiliter Mortui that they may put in their Answers to the Articles ready now to be exhibited against them and that all such further Proceedings may be secretly expedited as may be Suitable to Justice and the Precedents of Parliaments so his Majesty may appear in his Triumphant Goodness and Indulgency to his People and his People may be Ravisht in their dutiful and Cheerful Obedience and Loyalty to his Majesty your Lordships may live in Records to Posterity as the instrumental Reformers of those corrupted Times and that the Kingdom and Common-Wealth may pay an amiable Sacrifice in Retribution and acknowledgment of his Majesties multiplied Providence for our Preservation herein Articles of the Knights The Articles of High Treason against Sir Richard Bolton c. Citizens and Burgesses in the Parliament Assembled against Sir Richard Bolton Knight Lord Chancellor of Ireland John Lord Bishop of Dery and Sir Gerard Lowther Knight Lord Chief Justice of his Majesties Court of Common-Pleas and Sir George Radcliffe Knight in maintenance of the Accusation whereby they and every of them stand Charged with High-Treason FIrst That they the said Sir Richard Bolton Knight Lord Chancellor of Ireland John Lord Bishop of Derry Sir Gerard Lowther Knight Lord Chief Justice of his Majesties Court of Comwon-Pleas and Sir George Radcliffe Knight intending the Destruction of the Common-Wealth of this Realm have Traiterously Confederated and Conspired Together to Subvert the Fundamental Laws and Government of
come in further Agitation and discussion in this Honourable House 9. Lastly The Judges Opinions are not usually call'd upon in Parliament but when upon Debate great and difficult Points in Law do arise where this most Honourable doth think fit to Command their Opinions but no Resolutions do belong unto the said Judges in Parliament but unto your Lordships yet in the Front and Preamble of the said Questions the Resolution of the said Questions by the Judges is forthwith desired to be required by your Lordships in Writing Although the first Question Viz. Whether the Subjects of this Kingdom c. be positively resolved by the Preamble to the said Questions in which it is likewise declared That the said Judges Answers thereunto are not desired For any Doubt or Ambiguity which may be conceived or thought of for or concerning the Premisses nor of the said Questions but for Manifestation and Declaration of a clear Truth and of the Laws and Statutes already planted and setled in this Kingdom And they conceive it is impossible to make any Manifestation or Declaration of Law or Statutes which may hold or be useful upon such general Questions as most of these are namely by what Laws in what Cases of what Power of what Force How Where and Why by Whom Wherefore what punishment by what Rule of Policy in what Condition of Persons In regard that the next succeeding Judges may be of another Opinion and that a Circumstance may alter the Reason of the Law in many particular Cases which the Wit of Man is not able to foresee or give a general Rule in And they say That to give any satisfaction to your Lordships or the Honourable House of Commons would make up a great Volume and require far more time then your Lordships have afforded unto the said Judges considering their great Toyl in the Circuits the last long Vacation their other Employments in the Common-wealth at their daily Attendance on your Lordships in Parliaments and in ordering Courts of Justice and yet lest they may seem to come any way short in performance of that Duty which they confess to be due unto your Lordships or be wanting in promoting and advancing the Good of the Common-wealth which they believe to be aimed at by the said Questions though it may seem to draw Damage or Prejudice upon their Particulars They do in all humbleness present unto your Lordships the ensuing Answers unto the said Questions which is as much as by their Oaths or in their Duty they owe unto His Sacred Majesty before his Princely pleasure be therein signified they can answer thereunto TO the First they Answer That the Subjects of this Kingdom are a Free People and are for the general to be Govern'd only by the Common Laws of England and Statutes of Force in this Kingdom yet they say That as in England many Statutes are grown obsolete and out of use and some particular Ancient Laws as well in Criminal as Civil Causes have been changed by Interpretation of the Judges there as they found it most agreeable for the general Good of the Common-wealth and as the Times did require it so our Predecessors the Judges of this Kingdom as the Necessity of the Times did move them did declare the Law in some particular Cases otherwise then the same is practised in England which the now Judges cannot alter without apparent diminution of a great part of His Majesties standing Revenue and opening a Gap for the shaking and questioning the Estates of many of His Majesties Subjects and the overthrowing of several Judgments Orders and Decrees which depend thereupon For Example If it be found by Office of Record sufficient for Form That a Man was killed in actual Rebellion and at the time of his Death he was seised of Lands Hereditaments Goods or Chattels by the constant Declaration of Law and Practise in former times here the Crown was Intitled to such Lands Goods and Chattels and many Mens Estates depend thereupon and yet the Law is not so taken in England So If one or more commit Felony and then stand out upon his or their keeping and he or they will not submit themselves to be tryed by the Law but being in that Case do rob or spoil and terrifie His Majesties People whereby the Country is disquieted This by the constant Opinion of our Predecessors in this Kingdom hath been adjudged a Levying of War within the Statute of 25 E. 3. and so consequently Treason Also by the common received Opinion and Practice of this Kingdom the Wife is to have a Third of all the Goods and Chattels and Credits of her Husband the Debts being paid although he dispose of all by his Will from her And yet the constant Practise is otherwise in England And other Instances of that kind might be made so that that word Only must receive a benign Exposition before the first Question can receive a general Answer in the Affirmative Secondly Many Causes of great Weight and Consequence in this Kingdom are to be Decreed and Ordered by Equity in the proper Courts of Equity and in Course of State at the Council Board and by particular Customes not contrary to Law for which the Common Law and Statutes of Force in this Kingdom gave no Remedy Thirdly There are several other Laws of Force in England and Ireland so far as they have been received which though some would have to be part of the Common Law of England yet we find them particularly distinguished from it in our Printed Books and Parliament Rolls in England As Lex Consuetudo Parliamenti jura Belli Ecclesiastical or Canon Law in certain Cases Civil Law in some Cases not only in Ecclesiastical Courts but in the Courts of Constable and Marshal and of the Admiralty and upon particular occasions in other Courts Lex Mercatoria c. 2. To the Second they say That the Judges of this Kingdom do take the Oath of Judges which Oath is specified amongst the Statutes in 18 E. 3. And is afterwards explained by the Stat. of 20 E. 3. And that they may not stay hinder or delay the Suit of any Subject or his Judgment or Execution thereupon otherwise than according to the Law and Course of the Court when they Sit under pretence of any Act of State Proclamation Writ Letter or Direction under the Great or Privy Seal or Privy Signet or Letter or other Commandment Lord Lieutenant Lord Deputy Justice Justices or other Chief Governors of this Kingdom most of which doth appear by their Oath expressed in the Statutes and the Statute of 20 E. 3. c. 8. And the Statute of 20 E. 3. c. 2. as to the Barons of the Exchequer And that as they know no Punishments due to Judges for their Deviations and Transgressions without other Aggravation so they know no punishment laid down by any Law against them for their Deviations and Transgressions in hindering staying or delaying of Justice contrary to their said Oath
Majesty's said Letters or the said Act of State and not otherwise The Commons not being satisfied with these Sober and Calm Resolutions of the Judges fell to Voting their own Sense and to make Declarations of the Law upon their former Queries as followeth Questions propounded in Parliament And Declarations of the Law thereupon in Parliament Quest 1. The Declaration of the Commons in Ireland upon the Queries propounded to the Judges WHether the Subjects of this Kingdom be a Free People and to be Governed only by the Common Laws of England and Statutes of Force in this Kingdom Declarat The Subjects of this his Majesties Kingdom of Ireland are a free People and to be Governed only according the Common Law of England and Statutes made and established by Parliament in this Kingdom of Ireland and according to the Lawful Customs used in the same 2. Quest Whether the Judges of this Land do take the Oath of Judges And if so Whether under pretext of any Act of State Proclamation Writ Letter or Direction under the Seal or Privy Seal Signet or Letter or other Commandment from the Lord Lieutenant Lord Deputy Justice Justices or other Chief Governor or Governors of this Kingdom they may hinder stay or delay the Suit of any Subject or his Judgment or Execution thereupon If so in what Cases And whether if they do hinder stay or delay such Suit or Judgment or Execution thereupon what Punishment do they incur for their deviation and transgression therein Declarat That Judges in Ireland ought to take the Oath of the Justices or Judges declared and established in several Parliaments of Force in this Kingdom and the said Judges or any of them by Color or under Pretext of any Act of State or Proclamation or under Color or Protext of any Writ Letter or Direction under the Great Seal Privy Seal or Privy Signet from the King 's Most Excellent Majesty or by Color or Pretext of any Letter or Commandment from the Chief Governor or Governors of this Kingdom ought not to hinder or delay the Suit of any Subject or his Judgment or Execution thereupon and if any Letters Writs or Commands come from his Majesty or from any other or for any other Cause to the Justices or to the other deputed to do the Law and right according to the Usage of the Realm in disturbance of the Law or of the Execution of the same or of Right to the Party the Justices and others aforesaid ought to proceed and hold their Courts and Processes where the Pleas and Matters be depending before them as if no such Letters Writs or Commandments were come to them And in case any Judge or Judges Justice or Justices be found in default therein he or they so found in default ought to incur and undergo due Punishment according to the Law and former Declarations and Provisions in Parliament in that Case made and of Force in this Kingdom or as shall be Ordered Adjudged or Declared in Parliament And the Barons of the Exchequer Justices of the Assize and Goal-delivery if they be found in default as aforesaid It is hereby declared That they ought to undergo the Punishment aforesaid 3. Quest Whether the Kings Majesties Privy Council either with the Chief Governor or Governors of this Kingdom or without him or them be a Place of Judicature by the Commons Laws and wherein Causes between Party and Party for Debts Trespasses Accompts Possessions or Title of Lands or any of them or which of them may be heard and determined and of what Civil Causes they have Jurisdiction and by what Law And of what Force is their Order or Decree in such Cases or any of them Declarat The Council Table of this Realm either with the Chief Governor or Governors or without the Chief Governor or Governors is no Judicatory wherein any Action Real Personal Popular or Mixt or any Suit in the Nature of the said Actions or any of them can or ought to be Commenced Heard or Determined and all Proceedings at the Council Table in any Suit in the nature of any of the said Actions are void especially Causes particularly provided for by express Acts of Parliament of Force in this Kingdom only excepted 4. Quest The Like of the Chief Governor alone Declarat The Proceedings before the Chief Governor or Governors alone in any Action Real Personal Popular or Mixt or in any Suit in the Nature of any of the said Actions are Coram non Judice and void 5. Quest Whether Grants of Monopolies be warranted by the Law and of what and in what Cases and how and where and by whom are the pretended Transgressors against such Grants punishable and whether by Fine Mutilation of Members Imprisonment Loss and Forfeiture of Goods or otherwise and which of them Declarat All Grants of Monopolies are contrary to the Laws of this Realm and therefore void and no Subject of the said Realm ought to be Fined Imprisoned or otherwise Punished for exercising or using the Lawful Liberty of a Subject contrary to such Grants 6. Quest In what Cases the Lord Lieutenant Lord Deputy or other Chief Governor or Governors of this Kingdom and Council may punish by Fine Imprisonment Mutilation of Members Pillory or otherwise And whether they may Sentence any to such the same or the like punishment for infringing the Commands of or concerning any Proclamation of and concerning Monopolies and what punishment do they incur that Vote for the same Declarat The Lord Lieutenant Lord Deputy or other Chief Governor or Governors and Council of this Realm or any of them ought not to imprison any of his Majesties Subjects but only in Cases where the Common Laws or Statutes of the Realm do inable and warrant them so to do and they ought not to Fine or to Consure any Subject in mutilation of Member standing on the Pillory or other shameful Punishment in any Case at the Council Table and no Subject ought to be Imprisoned Fined or otherwise Punished for Infringing any Commands or Proclamation for the support or Countenance of Monopolies and if in any Case any Person or Persons shall be committed by the Command or Warrant of the Chief Governor or Governors and Privy Council of this Realm or any of them That in every such Case every Person or Persons so Committed restrained of his or their Liberty or suffering Imprisonment upon Demand or Motion made by his or their Counsel or other imployed by him or them for that purpose unto the Judges of the Court of Kings-Bench or Common-Pleas in open Court shall without delay upon any Pretence whatsoever for the ordinary Fees usually paid for the same have forthwith granted unto him or them a Writ or Writs of Habeas Corpus to be directed generally unto all and every Sheriff Goaler Minister Officer or other Person in whose Custody the Party or Parties so Committed or Restrained shall be shall at the Return of the said Writ or Writs and
not to tender a thing called a Plea and Demurrer As also that the Commons conceive they ought to have been called in this Case for that they have desired it in both their Charges to be present at their Answer and that it was their Right to have been called Further They observe the long delay to the Commons for that they having charged these 13 Bishops long since for meer matter of Fact to be brought so late to Answer may introduce great inconveniencies in this particular and in the Consequences and is not Exampled by former Precedents That therefore upon these Grounds the Commons desire the Lords they may be admitted to make good their proof against these 13 Bishops and that they may be brought to Judgment It was this day Ordered by the Lords Tuesday Decemb. 7. Some Causes in Parliament determinable in no other Court That Forasmuch as the Cause between Smith and Busby in a Writ of Error decidable in no other Court but in Parliament in regard the Suit was Commenced by Original Writ and depending long before the Lords here it having been sundry days attended for Argument with Counsel And being it is a matter in Law the presence of the Judges is thought needful and so cannot be heard in the Term without prejudice to the several Courts of Westminster-Hall It is therefore Ordered by this House That the said Case shall be argued at this Bar on Thursday Sevennight next being the 16th of this Instant December and the Judges are desired to be present at the said Argument And further That the Parties of either side or their Council are to attend and come prepared for arguing and debating the Points in the said Case at their perils The following Commission to give Power to the English Commissioners of both Houses to Treat with the Scots Commissioners touching the Affairs of Ireland was read viz. CHARLES by the Grace of God The King's Commission to several Lords and Commons to treat with the Scots Commissioners concerning assistance for Ireland c. To Our right Trusty and right Well-beloved Cousin William Earl of Bedford and to Our right Trusty and right Well-beloved Cousin and Councellor Robert Earl of Leicester Lieutenant General and Governor General of Our Realm of Ireland as also to Our Trusty and right Well-beloved Edward Lord Howard of Escrick and likewise to Our Trusty and right Well-beloved Nathanael Fines Esq Sir William Armyn Baronet Sir Philip Stapleton Knight John Hampden Esq Greeting Know ye That We reposing assured Trust and Confidence in your approved Wisdoms Fidelities and great Abilities have Nominated Constituted and Appointed you to be our Commissioners and by these presents do give full Power and Authority unto you or any Three or more of you whereof the said Earl of Bedford Earl of Leicester or Lord Howard to be one to Treat and Consult with Our Right Trusty and Right Well beloved Cosins William Earl of Lothian and John Earl of Lindsay Our Commissioners of Our Scottish Nation of and concerning Our Irish Affairs for the quieting and suppressing of all Tumults Insurrections and Rebellions moved and raised in Our Realm of Ireland and settling Peace and Tranquillity therein according to such Instructions and Directions as you shall hereafter from time to time receive from Vs in that behalf Wherefore We Will Require and Command you or any three or more of you whereof the said Earl of Bedford Earl of Leicester and Lord Howard to be one forthwith with all diligence to attend the Execution of this Our Commission accordingly And whatsoever you shall do in this behalf according to the Tenor hereof this Our Commission shall be your sufficient Warrant and Discharge for the same Witness Our Self at Westminster the 7th day of December in the 17th Year of Our Reign c. The late Bishop of Lincoln now Archbishop of York Late Bishop of Lincoln now Archbishop of York Reports the Conference concerning the Bishops Impeached Reported the Conference with the Commons Yesterday concerning the Impeached Bishops which because it differs from the Heads Reported for that purpose by Mr. Glyn in the Commons Journal I thought it not amiss to insert His Grace Reported That Mr. Glyn said That the Knights Citizens and Burgesses of the House of Commons having lately received a Message from their Lordships that their Lordships had appointed this day to hear the Plea and Demurrer of the Bishops and that such of the House of Commons might be there as they thought fitting commanded him to deliver unto their Lordships these Particulars That the Canons and Constitutions in Question were voted by both Houses to contain Matters contrary to the King's Prerogative the Laws of the Land the Right of Parliament the Propriety and Liberty of the Subject and many matters tending to Sedition and of dangerous Consequence That thereupon the House of Commons to the intent to bring this Matter to Judgment brought up their Impeachment of the 13 Bishops 4th Augusti last which was read verbatim This was all that was acted 4o. Augusti But least this Impeachment might prove too general they brought up a second Charge or Impeachment 13 Augusti which was read in haec verba Whereas the Knights Citizens c. which to avoid Tautologies the Reader may see before in the Transactions of the 13 August By the bringing of this second Impeachment the House of Commons conceive they had satisfied two main Objections 1. That the Book of Canons and Constitutions was not particularly instanced upon in the first which now they punctually deliver with the Impeachment 2. That they had not before charged any thing in particular but now they did That all and every the said Canons and Constitutions and Grants of Benevolence c. were and are contrary c. as in the Vote And hereupon they desired the 13 Bishops might be put to their Answers and yet for all this Desire of the Commons 13. Augusti they had several times which spent almost a Quarter of a Year given them to answer in Their last and peremptory day was the 10th of November last and then they put in no Answer at all but a certain Writing which they are pleased to call a Plea and Demurrer Vpon notice hereof the House of Commons returned an Answer That whereas they had impeached 13 Bishops whereof one of them had pleaded Not Guilty and the rest had neither confessed nor denyed the Impeachment they desired a prefixed day to descend to Proofs and make good the Charge Soon after they received a Message from their Lordships That their Lordships had appointed this day to hear the Demurrer argued Hence it appears That notwithstanding divers daies are given to the Bishops to answer nothing is brought in but a Plea and Demurrer which was not to be admitted for two several Reasons 1. No Defence ought to be made to an Impeachment brought in by the Commons but in the presence of the Commons and it ought to be
Henry Vane Senior Knight Mr. Hollis Mr. Brown and Mr. Pym to draw up the same accordingly This Report being made and taken into Consideration the three Particulars concerning Privilege were Voted and it was 1 Resolved upon the Question Nemine contradicente Votes of the Lords and Commons concerning breach of Privilege by the King That the Privileges of Parliament were broken by his Majesties taking Notice of the Bill for suppressing of Soldiers being in Agitation in both Houses and not agreed on 2 Resolved upon the Question Nemine Contradicente That his Majesty in propounding a Limitation and Provisional Clause to be added to the Bill before it was presented unto him by the Consent of both Houses was a Breach of the Privilege of Parliament 3 Resolved upon the Question Nemine Contradicente That his Majesty expressing his Displeasure against some Persons for Matters moved in the Parliament during the Debate and preparation of that Bill was a Breach of the Privilege of Parliament The same Votes were also passed in the Commons House Then the Petition of the Lord Peirpoint was read as follows To the Most Honorable the Lords of the High Court of Parliament The Humble Petition of Henry Lord Pierpoint Humbly Sheweth THat whereas your Petitioner in heat of Debate L. Pierpoint's Petition let fall some unfitting Words which offended this Honorable House and drew upon him this Imprisonment Your Petitioner humbly confessing the Justice of his Restraint beseecheth your Lordships Pardon and pass over this his Offence and he shall ever acknowledge your Lordships favor herein H. Pierpoint Hereupon it was resolved upon the Question That the Lord Pierpoint shall be delivered out of his restraint this Night In the House of Commons besides the Debate concerning the Matter of Privilege of which before in the Conferences and Votes of the Lords House several Propositions from the Scottish Commissioners were read and upon the Question assented unto They were presented by Sir Philip Stapleton in five Papers in haec verba 1 As in our first Proposition Propositions from the Scots Commissioners for 10000 Men for Ireland we made offer of 10000 Men in the Name of the Kingdom of Scotland for a further Testimony of Our Zeal to his Majesties Service and Respect and Brotherly Affection to the Kingdom of England We declare That we will upon the Charges of the Kingdom of Scotland Levy and Transport those Men and not stand with our Brethren upon Conditions of Levy and Transport Mony which we very well know is usual in such Occasions and could not in reason have been denyed us and which will amount to a very considerable summ of Money 2 We desire that there may be 30000 l advanced to us of the Brotherly Assistance because there are great Arrears due to our Soldiers who will not willingly enter into a new Imployment unless they be satisfied with what is resting 3 We desire because we cannot unfurnish the Kingdom of Scotland of Arms Canon and Ammunition That what Proportion of any of these we send with our Army That so many and such a Proportion of each kind may be presently sent into Scotland to remain there till the return of what we take into Ireland which we shall give Assurance shall be restored we retaining so much of that which shall be sent into Scotland as shall be lost or spent of ours in the Service of Ireland 3 We desire That with all Expedition some Ships of War may be appointed to go to Lothyan Port Patrick or Ayr to Guard and Waft over our Soldiers whom we intend for Expedition to Transport in small Vessels and that these Ships shall attend at the Ports in Ireland where we land that they may be sent over again into Scotland to bring over to us any necessaries left behind and to go to and again betwixt those Coasts to keep the Passage free for Going and Returning 5 We desire That for every 1000 Foot we send into Ireland a 100 Horse be in readiness to joyn with them and that these be ordered to receive Instructions and Orders and in every thing to obey the Injunctions of our Commanders This Proposition was not fully Assented to but referred back to the Commissioners for the propounding a less proportion of Horse 6 By the Instructions sent by both Houses of your Parliament to your Commissioners in Scotland and which was sent by his Majesty from Berwick to the Council there they did beseech his Majesty to recommend to the Parliament of Scotland that they would take into Consideration the Matter of Wages and other Charges as they would have done for themselves We in this think we could not make particular Agreement with our Troops but desire you would let us know what entertainment you give to your own Commanders and Soldiers wherewith we shall be satisfied and acquiesce to any Order you shall take with them being willing to serve the Crown of England with the same Affection and upon the same Terms as if we were English Men born Sic Subscribitur A. Fullerton This Evening the House sate late and Candles were voted in House divided about Printing the Remonstrance and a very great Debate there was concerning the Remonstrance of the State of the Kingdom which was presented to his Majesty at Hampton-Court whether it should be Printed or not the House was at the last divided upon it with the Yeas were 135. with the No 83. Whereupon it was Ordered That the Remonstrance shall be forthwith Printed and Published Thus did these Men treat this excellent Prince with repeated Acts of Ingratitude for his transcendent Acts of Grace and were so far from being satisfied or contented that the King had given them so much that they advanced in Confidence to demand all And indeed were as the sequel will make it plainly appear resolved to demand still till the King must be necessitated either to deny then or divest himself of every thing but the shaddow of Imperial Majesty and Power that so they might have an Occasion to break with him and indeavour to wrest the Residue of Sovereignty which he had not parted with by plain force out of his Hands His Majesty now began to feel the effects of that unparalell'd Act 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 cap. 5. for perpetuating this Parliaments sitting during their own Pleasure and found in reality that by this Act of the highest Confidence by which he hoped as he saith in his excellent Book for ever to shut out and lock the Door upon all present Jealousies and future Mistakes some Men intended to shut him out of Doors himself and that the permitting them to go up to the Pinacles of the Temple of Prerogative gave them an irresistible Temptation to throw down his Majesty and the Monarchy from thence which fatal Act though in his own Words it was no Sin of his Will yet was an Error of too charitable a Judgment By the Printing and Publishing of this Remonstrance
then the very Act which this Parliament obtained from the King that they should not be dissolved or prorogued by the King without their own Consent which was a plain Confession that till his Majesty had in this Particular by giving the Royal Assent to that fatal Bill limited the undoubted Power of his Prerogative it was an inherent Right annexed to the Imperial Crown of this Realm that the King was the sole Judg of the Calling Continuance and Dissolution of Parliaments And though some Seditious Pens and particularly the Apostate Author of the Life of Julian the Apostate have taken great Pains to revive and furbish up this Opinion and to reflect upon his present Majesty as the Rebels of this Parliament did upon his Royal Father for breaking up of some Mutinous and Troublesome Parliaments in the beginning of his Reign which plainly shews them to be of the Temper of the ill Men of those ill times yet I think they ought to stay before they Preach this Doctrine to the People for a true Privilege of Parliament till they have got such another Act of Perpetuation in one Hand and a Sword to maintain it in the other which is the only Argument that at long run such Seditious People must have Recourse to and I hope it may be some time before such another Act will be obtained and longer before they can get the Power of the Sword to maintain it And certainly were there no other Inconveniences yet the dismal Effects which the continuance of this Parliament brought upon the King and Kingdom to the intire Ruin of the Government Laws Liberty and Property of the English Nation are sufficient to give all Loyal and Honest Subjects very terrible Apprehensions not only of the thing it self but that the Persons who revive and propagate such Opinions must have Designs to compass and effect the same Mischiefs over again which like an Inundation drowned the Kingdom in Blood by the Breach of this Bank of Royal Prerogative of the Kings being the sole Judg of the continuance and dissolving of Parliaments Mr. Glyn's Speech upon this Subject was as followeth Mr. Speaker WE sit now upon that grand business of the Breaches of the Rights and Priviledges of Parliaments which are so many and great Mr. Glyn's Speech about Breach of Priviledges Jan. 5. 1641. so carefully preserved and defended and having in former times severely punished the infringers thereof that I had thought and conceived that no Subject of what degree or dignity soever would either in their own persons or by misinforming his Majesty concerning the same would have presumed to have intrenched in the least measure upon the free Liberty Rights and very Beings of Parliaments or tending to the Breach thereof But Mr. Speaker I perceive the perverseness of divers persons in places of Authority that they dare not only presume to provoke his Majesty by their politick mis-informations but dare attempt of themselves to resist the lawful power both of the King and his high Court of Parliament Mr. Speaker These Men notwithstanding they apparently perceive that their wicked practices and malicious designs cannot take effect according to their expectation but are rejected and detected as well by his Sacred Majesty as his Lords and his whole Council dare venture to endeavour by casting aspersions and spreading abroad evil reports not only of the Members but of the Proceedings of the House of Commons against them and others of their Adherents and Favourits in their wicked and desperate Actions and Designs against their lawful Soveraign and his Liege People I conceive Mr. Speaker did these persons but remember the many Presidents yet extant of the just and deserved punishments inflicted by former Parliaments upon such Miscreants as witness the Arch-Bishop of York the Duke of Suffolk Chief Justice Belknap and the rest of that Conspiracy in the Reign of King Edward the Second they would have prejudged to themselves the like danger would follow upon them for their evil Actions Nay Mr. Speaker did these men but consider with themselves the just judgments of God that have immediately lighted upon the necks of such as have been the troublers of Kingdoms and Common-wealth whereof they have been Members as well recorded in Sacred Writ as of late times in this Kingdom yet still in fresh Memory they would have laid their hands upon their Mouths and hearts when they went about to speak or do any thing tending to the dishonour of Almighty God in innovating of his true Religion corrupting the sincere Doctrine and discipline of Christ and his Apostles as also any thing tending to the dishonour and perpetual destruction of his Royal Majesty however otherwise they may pretend the Fundamental Laws and Liberties of this Kingdom the Rights and Priviledges of Parliaments and the very being thereof but surely Mr. Speaker they are altogether benummed and stupified their Consciences dead and seared their Lives and Conversations altogether devoted to the works of darkness and impurity their desires altogether sensual carnal and devilish forgetting God kicking and spurring with maliciousness against all Piety and Godliness or else they would never have adventured to practice such things as it is too too manifest they have done Mr. Speaker I intend to be brief in that which I am to speak concerning the Breaches of the Priviledges of Parliament First To inform his Majesty of any Proceedings in the House of Commons upon any businesses whatsoever before they have concluded finished and made ready the same to present to his Majesty for his Royal Assent thereunto is a Breach of the Priviledges of Parliament Secondly To mis-inform his Majesty contrary to the Proceedings in Parliament thereby to incense and provoke him against the same is a Breach of Priviledge of Parliament Thirdly To cause or procure any Information or Accusation to be brought or preferred without the knowledge or consent of the Parliament into the House against any of the Members thereof is a Breach of Priviledge of Parliament Fourthly To apprehend any such Accused to imprison their persons to seize upon their Goods or Estates to prosecute and proceed against them to their Tryal and Judgment to Condemn or Execute them upon such Accusation without the consent or advice of the Parliament is a Breach of the Priviledges thereof Fifthly To endeavour to cast an evil opinion of such Members Accused into the hearts of his Majesties Loyal Subjects whereby they disaffecting them may be ready and willing to put in execution any Command or Warrant for their apprehension and imprisonment is a Breach of the Priviledges of Parliament Sixthly To come in open Parliament for any Officer or Serjeant to demand and arrest any such Member accused be it of high Treason or any other Crime whatsoever without the knowledge of the whole House is a Breach of the Priviledges of Parliament Seventhly to come to a Parliament sitting in free consultation assisted and guarded with Armed Men and with them be sitting the