have communicated the same to the rest of the Members of the House To this Speech Sir Dudley Diggs it being at a free Conference made Reply MY Lords it hath pleased God many ways to bless the Knights Citizens and Burgesses now assembled in Parliament with great comfort and strong hopes that this will prove as happy a Parliament as ever was in England And in their Consultations for the service of his Majesty and the safety of this Kingdom our special comforts and strong hopes have risen from the continued good respect which your Lordships so nobly from time to time have been pleased to shew unto them particularly at this present in your so honorable profession to agree with them in general and desiring to maintain and support the fundamental Laws and Liberties of England The Commons have commanded me in like sort to assure your Lordships they have been are and will be as ready to propugne the just Prerogative of his Majesty of which in all their Arguments searches of Records and Resolutions they have been most careful according to that which formerly was and now again is protested by them Another noble Argument of your honorable disposition towards them is expressed in this That you are pleased to expect no present answer from them who are as your Lordships in your great wisdoms they doubt not have considered a great Body that must advise upon all new Propositions and resolve upon them before they can give answer according to the ancient Order of their House But it is manifest in general God be thanked for it there is a great concurrence of affection to the same end in both Houses and such good Harmony that I intreat your Lordships leave to borrow a Comparison from Nature or natural Philosophy As two Lutes well strung and tuned brought together if one be played on little straws and sticks will stir upon the other though it lye still so though we have no power to reply yet these things said and propounded cannot but work in our hearts and we will faithfully report these Passages to our House from whence in due time we hope your Lordships shall receive a contentful Answer The Commons were not satisfied with these Propositions which were conceived to choak the Petition of Right then under consideration but demurred upon them Monday 28 April The Lord Keeper spake to both Houses of Parliament by the Kings command who was then present MY Lords and ye the Knights Citizens and Burgesses of the House of Commons ye cannot but remember the great and important Affairs concerning the safety both of the State and Religion declared at first from his Majesties own mouth to be the causes of the Assembling of this Parliament the sense whereof as it doth daily increase with his Majesty so it ought to do and his Majesty doubts not but it doth so with you since the danger increaseth every day both by effluxion of time and preparations of the Enemy Yet his Majesty doth well weigh that this expence of time hath been occasioned by the Debate which hath arisen in both Houses touching the Liberty of the Subject in which as his Majesty takes in good part the purpose and intent of the Houses so clearly and frequently professed that they would not diminish or blemish his just Prerogative so he presumes that ye will all confess it a point of extraordinary Grace and Justice in him to suffer it to rest so long in dispute without interruption but now his Majesty considering the length of time which it hath taken and fearing nothing so much as any future loss of that whereof every hour and minute is so pretious and foreseeing that the ordinary way of Debate though never so carefully husbanded in regard of the Form of both Houses necessarily takes more time then the Affairs of Christendom can permit his Majesty out of his great Princely care hath thought of this expedient to shorten the business by declaring the clearness of his own heart and intention And therefore hath commanded me to let you know That he holdeth the Statute of Magna Charta and the other Six Statutes insisted upon for the Subjects Liberty to be all in force and assures you that he will maintain all his Subjects in the just Freedom of their Persons and safety of their Estates And that he will govern according to the Laws and Statutes of this Realm And that ye shall finde as much security in his Majesties Royal Word and Promise as in the strength of any Law ye can make so that hereafter ye shall never have cause to complain The conclusion is That his Majesty prayeth God who hath hitherto blessed this Kingdom and put into his heart to come to you this day to make the success thereof happy both to King and People And therefore he desires that no doubt or distrust may possess any man but that ye will all proceed unanimously to the business The Commons being returned from the Lords House Mr. Secretary Cook perswaded them to comply with the King His Majesty said he puts us in minde of the great important Affairs of the State and of his sense thereof that by effluxion of time increaseth in him and he doubts not but that it doth increase in us Ye see his Majesties moderation in the interpretation of all our actions he saith that he hopes we have the same sense he hath he is pleased to consider of the occasion of expence of time that grew from the Debates in both Houses We see how indulgent he is that however the Affairs of Christendom are great yet he omits not this nay he takes in good part our Proceedings and our Declarations that we will not Impeach the Prerogative Also his Majesty presumes that we will confess that he hath used extraordinary Grace in that he hath indured dispute so long he acknowledgeth it Justice to stand as we have done Further out of a Princely care of the Publique he is careful no more time be lost and because he sees some extraordinary course to be taken to satisfie us he observes that in the Form of Debate such length is required as the nature of the business will not indure It is to be presumed that his Government will be according to the Law We cannot but remember what his Father said He is no King but a Tyrant that governs not by Law But this Kingdom is to be governed by the Common Law and his Majesty assures us so much the Interpretation is left to the Judges and to his great Council and all is to be regulated by the Common Law I mean not Magna Charta onely for that Magna Charta was part of the Common Law and the ancient Law of this Kingdom all our difference is in the Application of this Law and how this Law with difference is derived into every Court I conceive there are two Rules the one of Brass that is rigid and will not bend and that is the Law of the Kings Bench this Law will not bend and when it lights on Subjects fitting if it do not bend it is unjust And there comes in the Law of the Chancery and of Equity this
memory did procure of the said King the Office of High Treasurer of England to the Lord Vicount M. now Earl of M. Which Office at his procurement was given and granted accordingly to the Lord Vicount M. And as a Reward for the said procurement of the same Grant he the said Duke did then receive to his own use of and from the said Lord Vicount M. the sum of 20000 l. of lawful money of England And also in or about the moneth of Ianuary in the sixteenth year of the Reign of the said late King did procure of the said late King of famous memory the Office of Master of the Wards and Liveries to and for Sir L. C. afterward Earl of M. which Office was upon the same procurement given and granted to the said Sir L.C. And as a reward for the same procurement he the said Duke had to his own use or to the use of some other person by him appointed of the said Sir L.C. the sum of Six thousand pounds of lawful money of England contrary to the Dignity of our Soveraign Lord the King and against the duty that should have been performed by the said Duke unto him These as also the Eleventh Article were enlarged and aggravated by Mr. Pym in this manner My Lords ALthough I know that I shall speak to my own disadvantage yet I shall labor to speak with as little disadvantage to the matter as I can I have no learning or ornament whereby I might shew my self and I shall think it enough plainly to shew the matter For all that I aim at is that I may lose nothing of the Cause And therefore my Lords I shall apply my self with as much convenient brevity as one that knows that your Lordships time is much more precious then my words Your Lordships being such Judges as will measure things by true and natural proportions and not by the proportion of the action or expression The first entrance into my service must be reading the Articles My Lords This Charge for matter of Fact is so notorious and apparent that it needs no proof that these Honors have been procured And therefore I will only insist upon the Consequence First I will shew That by this fact the Duke hath committed a great Offence And secondly That this Offence hath produced a great Grievance to the Commonwealth And I will conclude in strengthening the whole by some Presidents of former times that Parliaments have proceeded in that course in which your Lordships are like to proceed First to prove it a fault or an offence I must prove that there was a duty for every fault presupposeth a duty And in this case the first work is to shew that the Duke was bound to do otherwise For which I need to alleage nothing else then that he is a sworne Servant and Counsellor to the King and so ought to have preferred his Majesties honor and service before his own pride in seeking to Ennoble all that Blood that concerned him And it is not enough to say that it is not questionable For there have been Great men questioned in the like cases There be some Laws made that are particular according to the temper and occasions of several States There are other Laws that be coessential and collateral with Government and if those Laws be broken all things run to disorder and confusion Such is that Rule observed in all States of suppressing Vice to encourage Vertue by apt Punishment and Rewards And this the fittest Law to insist upon in a Court of Parliament when the Proceedings are not limited either by the Civil or Common Laws but matters are adjudged according as they stand in opposition or conformity with that which is suprema lex Salus populi 2. By this late Law whoever moves the King to bestow Honor which is the greatest reward binds himself to make good a double proportion of Merit in that Party who is to receive it The first of value and excellence the second of continuance and durableness And as this Honor sets men up above others so they should be eminent in vertue beyond others As it is perpetual not ending with their persons but descending upon their posterity so there ought to be in the first root of this Honor some such active merit in the service of the Commonwealth as might transmit a vigorous Example to his Successors whereby they may be raised to an Imitation of the like Vertues He said he would for bear to urge this point further out of a modest respect to those persons whom it did collaterally concern professing his Charge to be wholly against the Duke of Buckingham 3. From the consideration of Honor together with the price of Money The which being compared together may be reduced to two heads may it please your Lordships The one being earthly and base may be bought with a proportionable price of white and red earth Gold and Silver The other which is spiritual which is sublime to which Money cannot be a proportionable price Honor is transcendent in regard it was held a sacred and divine thing insomuch that there was a Temple dedicated to her by the Romans And so I conclude by prescription that Honor is a divine thing for the Scripture calls Kings Gods and then those that are about Kings must needs be resembled to those Powers and Principalities that attend next to the Throne And if Honor be such a divine thing it must not then be bought with so base a price as Money 4. Lastly Honor is a Publick thing it is the reward of Publick Deserts And thus your Lordships have seen that the sale of Honor is an offence unnatural against the Law of Nature Now what an offence this is your Lordships may discern considering the kinds of the offence and the Adjuncts which I now fall upon 1. It extremely deâ—lowers the Flowers of the Crown for it makes them cheap to all beholders 2. It takes from the Crown the most fair and frugal Reward of deserving Servants For when Honor comes to be at so mean a rate as to be sold there is no Great man will look after it 3. It is the way to make a man more studious for lucre and gain then of sufficiencie in Vertue when they know that they shall be preferred to Titles of Honor according to the heaviness of purse and not for the weightiness of their merit 4. It introduceth a strange confusion mingling the meaner with the more pure and refined metal 5. Lastly It is a prodigious scandal to this Nation as the House of Commons think For Examples and Presidents I am confident there are none and your Lordships can look for none because it is not parallel'd to any President But certainly it is now a fit time to make a President of this man this great Duke that hath been lately raised to this transcendent height in our Sphere who thinketh he cannot shine enough unless he dim your Lordships Honors in
said Drink or Potion to his said late Majesty who thereupon at the same times within the seasons in that behalf prohibited by his Majesties Physitians as aforesaid did by the means and procurement of the said Duke drink and take divers quantities of the said Drink or Potion After which said Plaisters and Drink or Potion applied and given unto and taken and received by his said Majesty as aforesaid great distempers and divers ill symptoms appeared upon his said Majesty insomuch That the said Physitians finding his Majesty the next morning much worse in the estate of his health and holding a Consultation thereabout did by joynt consent send to the said Duke praying him not to adventure to minister to his Majesty any more Physick without their allowance and approbation And his said Majesty himself finding himself much diseased and affected with pain and sickness after his then fit when by the course of his Disease he expected intermission and ease did attribute the cause of such his trouble unto the said Plaister and Drink which the said Duke had so given and caused to be administred unto him Which said adventrous act by a person obliged in duty and thankfulness done to the Person of so great a King after so ill success of the like formerly administred contrary to such Directions as aforesaid and accompanied with so unhappy event to the great grief and discomfort of all his Majesties Subjects in general is an Offence and Misdemeanor of so high a nature as may justly be called and is by the said Commons deemed to be an act of transcendent presumption and of dangerous consequence Mr. Wandesford deputed to enlarge and aggravate upon the Thirteenth Article commended the charity and providence of that Law which makes it penal for unskilful Empyricks and all others to exercise and practice Physick upon common persons without a lawful Calling and Approbation branding them that thus transgress as Improbos Ambitiosos Temerarios Audaces homines But he that without skill and calling shall direct a Medicine which upon the same person had wrought bad effects enough to have disswaded a second adventure and then when Physitians were present Physitians selected for Learning and Art prepared by their Office and Oaths without their consent nay even contrary to their Direction and in a time unseasonable He must needs said he be guilty albeit towards a common person of a precipitate and unadvised rashness much more towards his own Soveraign And so pious are our selves to put the Subjects in minde of their duty towards their Princes Persons so Sacred that in the attempt of a Madman upon the King his want of Reason which towards any of his fellow Subjects might have quit him of Felony shall not excuse him of Treason And how wary and advised our Ancestors have been not to apply things in this kinde to the Person of a King may appear by a President 32 Hen 6. where Iohn Arundel and others the Kings Physitians and Chirurgeons thought it not safe for them to administer any thing to the Kings Person without the assent of the Privy Council first obtained and express Licence under the Great Seal of England This Medicine found his Majesty in the declination of his desease and we all wish it had left him so but his better days were shortly turned into worse and instead of health and recovery we hear by good testimony that which troubles the poor and loyal Commons of England of great distempers as Droughts Raving Fainting an intermitting Pulse strange effects to follow upon the applying of a Treacle Plaister But the truth is Testimony tells us That this Plaister had a strange smell and an invective quality striking the malignity of the disease inward which Nature otherwise might have expelled outward Adde to this the Drink twice given to his Majesty by the Duke his own hands and a third time refused and the following Complaint of that blessed Prince the Physitians telling him to please him for the time That his second impairment was from cold taken or some other ordinary cause No no said his Majesty it is that which I had from Buckingham And though there be no President said he of an act offered to the Person of a King so insolent as this yet is it true that divers persons as great as this have been questioned and condemned for less offences against the Person of their Soveraign It was an Article amongst others laid against the Duke of Somerset for carrying Edward the Sixth away in the night time out of his own head but from Hampton Court to Windsor and yet he was trusted with the Protection of his person Presidents failing us in this point the Common Law will supply us The Law judgeth a deed done in the execution of an unlawful act Man-slaughter which otherwise would but have been Chance-medley and that this act was unlawful the House of Commons do believe as belonging to the Duty and Vocation of a sworn and experimented Physitian and not the unskilfulness of a yong Lord. And so pretious are the lives of men in the Eye of the Law that though Mr. Stanford saith If a Physitian take one into his Cure and he die under his hands it is not Felony because he did it not Feloniously Yet it is Mr. Bractons opinion That if one that is no Physitian or Chirurgeon undertake a Cure and the party die under his hands this is Felony And the Law goeth further making Physitians and Chirurgeons themselves accomptable for the Death of their Patients if it appear they have transgressed the Rules of their own Art that is by undertaking a thing wherein they have no experience or having yet failed in the care and diligence Lastly He said he was commanded by the House of Commons to desire their Lordships That seeing the Duke hath made himself a President in committing that which former Ages knew not their Lordships will out of their Wisdom and Justice make him an example for the time to come The several Articles being thus enlarged and aggravated by the said respective Members Sir Iohn Elliot was appointed to make the Epilogue to the Impeachment who spake thus My Lords YOur Lordships have heard in the Labors of these two days spent in this Service a Representation from the Knights Citizens and Burgesses of the Commons House of Parliament of their Apprehension of the present Evils and dangers of this Kingdom of the Causes of the same and of the Application of them to the Duke of Buckingham so clearly and fully as I presume your Lordships expect I should rather conclude then adde any thing to his charge Your Lordships have heard how his Ambition was expressed in procuring and getting into his hands the greatest Offices of strength and power of this Kingdom by what means he had attained them and how Money stood for Merit There needs no Argument to prove this but the common sense of the Miseries and Misfortunes which we suffer
transporting of any such as are here mentioned And his Majesty will take it for good Service if any will give knowledge of any such as have connived or combined or shall connive or combine as is mentioned in this Article that Justice may be strictly done upon them THat considering those dreadful dangers never to be forgotten which did involve your Majesties sacred Person and the whole representative body of your Maiesties Kingdom plotted and framed by the free and common access of Popish Recusants to the City of London and to your Majesties Court Your Majesty would be gratiously pleased to give speedy command for the present putting in practise those Laws that prohibit all Popish Recusants to come to the Court or within ten Miles of the City of London as also those Laws that confine them to the distance of five miles from their dwelling Houses and that such by-past Licenses not warranted by Law as have been granted unto them for their repair to the City of London may be discharged and annulled His Majesties Answer to the third Article TO the third His Majesty will take Order to restrain the recourse of Recusants to the Court and also for the other points in this Article his Majesty is well pleased that the Laws be duely executed and that all unlawful Licenses be annulled and discharged THat whereas it is more then probably conceived that infinite sums of moneys have within these two or three years last past been extracted out of the Recusants within the Kingdom by colour of composition and a small proportion of the same returned unto your Majesties coffers not onely to the suddain enriching of private persons but to the emboldning of Romish Recusants to entertain Massing Priests into their private Houses and to exercise all their Mimique Rites of their gross superstition without fear of control amounting as by their dayly practice and ostentation we may conceive to the nature of a concealed Toleration your Majesty would be gratiously pleased to entertain this particular more neerly into your Princely wisedom and consideration and to dissolve this Mystery of Iniquity patched up of colourable Leases Contracts and Preconveyances being but Masks on the one part of fraud to deceive your Majesty and States on the other part for private men to accomplish their corrupt ends His Majesties Answer to the fourth Article TO the fourth Article his Majesty is most willing to punish for the time past and prevent for the future any of the deceits and abuses mentioned in this Article and will account it a good service in any that will inform Himself his Privy Councel Officers of his Revenues Judges or learned Councel of any thing that may reveal this mystery of Iniquity And his Majesty doth strictly command every of them to whom such information shall be brought that they suffer not the same to die but do their uttermost endeavour to effect a clear discovery and bring the Offenders to punishment And to the intent no concealed toleration may be effected his Majesty leaves the Laws to their course THat as the Persons of Ambassadors from forain Princes and their Houses be free for the exercises of their own Religion so their Houses may not be made free Chappels and Sanctuaries unto your Majesties Subjects popishly affected to hear Mass and to participate in all other Rites and Ceremonies of that Superstition to the great offence of Almighty God and scandal of your Majesties People loyally and religiously affected That either the concourse of Recusants to such places may be restrained or at least such a vigilant watch set upon them at their return from those places as they may be apprehended and severely proceeded withal Ut qui palam in luce peccant in luce puniantur His Majesties Answer to the fifth Article TO the fifth his Majesty is well pleased to prohibit and restrain their coming and resort to the Houses of Ambassadors and will command a vigilant watch to be set for their taking and punishing as is desired THat no place of Authority and Command within any the Counties of this your Majesties Kingdom or any Ships of your Majesties or which shall be imployed in your Majesties Service be committed to Popish Recusants or to Non-communicants by the space of a year past or to any such persons as according to direction of former Acts of State are justly to be suspected as the place and Authority of Lords Lieutenants Deputy Lieutenants Iustices of Peace or Captains or other Officers or Ministers mentioned in the Statute made in the third year of the reign of your Father of blessed memory And that such as by Connivence have crept into such places may by your Majesties Royal Command be discharged of the same His Majesties Answer to the sixth Article TO the sixth his Majesty is perswaded that this Article is already observed with good care nevertheless for the avoiding as much as may be all errors and escapes in that kinde his Majesty will give charge to the Lord Keeper that at the next Term he call unto him all the Judges and take Information from them of the state of their several Circuits if any such as are mentioned in this Article be in the Commission of the peace that due reformation may be made thereof And will likewise give order to the Lord Admiral and such others to whom it shall appertain to make diligent enquiry and certificate to his Majesty if any such be in place of Authority and Command in his Ships or Service THat all your Majesties Iudges Iustices and ministers of Iustice unto whose care and trust execution which is the life of your Majesties Laws is committed may by your Majesties Proclamation not onely be commanded to put in speedy execution those Laws which stand in force against Iesuits Seminary Priests and Popish Recusants but that your Majesty would be further pleased to command the said Iudges and Iustices of Assize to give a true and strict account of their proceedings at their returns out of their Circuits unto the Lord Keeper and by the Lord Keeper to be presented unto your Majesty His Majesties Answer unto the seventh Article To the seventh his Majesty doth fully grant it ANd for a fair and clear eradication of all Popery for the future and for the breeding and nursing up of a holy generation and a peculiar People sanctified unto the true worship of Almighty God that until a provisional Law may be made for the training and educating of the Children of Popish Recusants in the grounds and principles of our holy Religion which we conceive will be of more power and force to unite your people unto you in fastness of love Religion and loyal obedience then all pecuniary Mulcts and Penalties that can possibly be devised Your Majesty would be pleased to take it into your own princely care and consideration these our humble Petitions proceeding from hearts and affections loyally and religiously devoted to God and
the liberties and priviledges of Parliament shall onely be discussed there and not in other Courts nor by the Common nor civill-Civill-Law see this case more at large in Selden's Notes upon Fortescue f. 42. 11 R. 2. Roll of the Processe and Iudgment An appeal of treason was exhibited against the Arch-bishop of Canterbury and others and there the advice of the Sages of the one Law and the other being required but because the appeal concerned persons which are Peers of the Realm which are not tryed else-where then in Parliament and not in an inferiour Court 28 H. 6. numb 18. There being a question in Parliament concerning Precedency between the Earl of Arundell and the Earl of Devon the opinion of the Iudges being demanded they answered That this question ought to be determined by the Parliament and by no other 31 H. 6. numb 25 26. During the prorogation of the Parliament Thorp that was the Speaker was out in Execution at the Suit of the Duke of York and upon the re-assembly of the Parliament the Commons made Suit to the King and Lords to have their Speaker delivered Upon this the Lords demand the opinion of the Iudges who answer That they ought not to determine the priviledges of the High Court of Parliament 4 ly This accusation in Parliament is in legall course of justice and therefore the accuser shall never be impeached 13 H. 7. and 11 Eliz. Dy. 285. Forging of false deeds brought against a Peer of the Realm Action de scandalis Magnatum doth not lie C. 4.14 Cutler and Dixy's case where divers cases are likewise put to this purpose 35 H. 6.15 If upon the view of the body the slayer cannot be found the Coronâ—r ought to enquire Who first found the dead body and if the first finder accuse another of the murder that is afterward acquit he shall not have an action upon the case for it was done in legall manner So it is the duty of the Commons to enquire of the grievances of the Subjects and the causes thereof and doing it in a legall manner 1â— H. 6.19 8 H. 4.6 in conspiracy it is a good plea that he was one of the Indictors And 20 H. 6.5 that he was a grand-Iury-man and informed his companions And 21 E. 4.6 7. and 35 H. 6.14 that he was a Iustice of Peace and informed the Iury 27 ass p. 12. is to the same purpose And if a Iustice of Peace the first finder a Iuror or Indictor shall not be punished in such cases à fortiori a Member of the House of Commons shall not who as 1 H. 7.4 is a Iudge 27 ass p. 44. may be objected where two were indicted of conspiracy because they maintained one another but the reason of the said case was because Maintenance is matter forbidden by the Law but Parliamentary accusation which is our matter is not forbidden by any Law C. 9.56 there was conspiracy in procuring others to be indicted And it is true for there it was not his duty to prefer such accusation 2 The accusation was extra-judicial and out of Court but it was not so in our case 3 Words spoken in Parliament which is a superiour Court cannot he questioned in this Court which is inferior 3 E. 3.19 and Stamford 153. will be objected where the Bishop of Winchester was arraigned in this Court because he departed the Parliament without license there is but the opinion of Scroop and the case was entred P. 3. E. 3.19 And it is to be observed that the plea of the Bishop there was never over-ruled From this I gather that Scroop was not constant to his opinion which was suddain being in the same Term in which the plea was entred or if he were yet the other Iudges agreed not with him and also at last the Bishop was discharged by the Kings Writ From this I gather that the opinion of the Court was against the King as in Pl. 20. in Fogassas's case where the opinion of the Court was against the King the party was discharged by privy Seal 1 and 2 Phil. and Mar. hath been objected where an Information in this Court was preferred against Mr. Ployden and other Members of the House of Commons for departing from the House without license But in that case I observe these matters 1. That this information depended during all the life of the Queen and at last was sine die by the death of the Queen 2. In the said case no plea was made to the Iurisdiction of the Court as here it is 3. Some of them submitted themselves to the Fine because it was easie for it was but 53. 4 d. But this cannot be urged as a president because it never came injudgment and no opinion of the Court was delivered therein And it is no argument that because at that time they would not plead to the jurisdiction therefore we now cannot if we would 4 These offences were not done in the Parliament House but else-where by their absence of which the Country may take notice but not of our matters being done in Parliament And absence from Parliament is an offence against the Kings Summons to Parliament 20 R. 2. Parliament-Roll 12. Thomas Hacksey was indicted of high-treason in this Court for preferring a Petition in Parliament but 1 H. 4. num 90. he preferred a Petition to have this Iudgment voided and so it was although that the King had pardoned him before And 1 H. 4. numb 104. all the Commons made Petition to the same purpose because this tends to the destruction of their priviledges And this was likewise granted 4 H. 8. c. 8. Strood's case That all condemnations imposed upon one for preferring of any Bill speaking or reasoning in Parliament are void And this hath alwaies been conceived to be a generall Act because the prayers time words and persons are generall and the answer to it is generall for a generall act is alwaies answered with Le Roy voit and a particular Act with Soit droit fait al partyes And 33 H. 6.17.18 A generall Act is alwaies inrolled and so this is 2 ly For the second matter the contempt to the command of the Adjournment 18 Jac. it was questioned in Parliament Whether the King can adjourn the Parliament although it be without doubt that the King can prorogue it And the Iudges resolve that the King may adjourn the House by Commission and 27 Eliz. it was resolved accordingly But it is to be observed that none was then impeached for moving that question 2 It is to be observed that they resolve that the adjournment may be by Commission but not resolved that it may be by a verball command signified by another and it derogates not from the Kings prerogative that he cannot so do no more then in the case of 26 H. 8.8 that he cannot grant one acre of land by parol The King himself may adjourn the House in person or under the great Seal but not by verball message
So here this Information ought to have been grounded upon Indictment or other matter of Record and not upon bare intelligence given to the King 10 The present case is great and difficult and in such cases the Iudges have alwaies outed themselves of Iurisdiction as appears by Bracton book 2. f. 1. Si aliquid novi non usitatum in Regno acciderit 2 E. 3.6 7. and Dower 243. Now I will remove some objections which may be made Where the King is Plaintiff it is in his election to bring his Action in what Court he pleases This is true in some sense to wit That the King is not restrained by the Statute of Magna Charta Quod communia placita non sequantur Curiam nostram for he may bring his Quare impedit in B. R. And if it concerns Durham or other County Palatine yet the King may have his Action here for the said Courts are created by Patent and the King may not be restrained by Parliament or by his own Patent to bring his Action where he pleaseth But the King shall not have his Action where he pleaseth against a prohibition of the Common Law as 12 H. 7. Keilw 6. the King shall not have a Formedon in Chancery And C. 6.20 Gregory's case If the King will bring an Information in an inferiour Court the party may plead to the Iurisdiction So where the Common Law makes a prohibition the King hath not election of his Court. The Information is contra formam Statuti which Statute as I conceive is intended the Statute of 5 H. 4. c. 6. and 11 H. 6. c. 11. which gives power to this Court to punish an assault made upon the servant of a Knight of Parliament But our case is not within those Statutes nor the intent of them for it is not intendible that the Parliament would disadvantage themselves in point of their priviledge And this was a trespasse done within the House by Parliament-men amongst themselves And Crompton's Jurisdiction of Courts f. 8. saith That the Parliament may punish trespasses done there Presidents have been cited of Parliament-men imprisoned and punished for matters done in Parliament To this I say That there is Via juris and via facti and via facti is not alwaies via juris C. 4.93 Presidents are no good directions unlesse they be iudiciall Otherwise there will be a failer of Iustice wrongs shall be unpunished To this I answer That a mischief is oft-times rather sufferable then an inconvenience to draw in question the priviledges of Parliament By the antient Common Law as it appears by 21 E. 3.23 and 21 ass if an Infant bring an appeal the Suit shall be stayed during his infancy because the party cannot have his tryall by Battail against the Infant but the Law is now held otherwise in the said case And in some cases criminall offences shall be dispunished 29 H. 8. Dy. 40. appeal of murder lies not for murder done in severall Counties This Court of B. R. is coram ipso Rege the King himself by intendment is here in person And as it is said C. 9.118 it is Supremum Regni Tribunal of ordinary Iurisdiction But to this I say that the Parliament is a transcendent Court and of transcendent jurisdiction It appears by 28 ass p. 52. that the style of other Courts is coram Rege as well as this is as coram Rege in Cancellaria coram Rege in Camera and though it be coram Rege yet the Iudges give the Iudgment And in the time of H. 3. in this Court some Entries were coram Rege others Coram Hugone de Bigod The privileges of Parliament are not questioned but the conspiracies and misdemeanours of some of them But to this I say That the distinction is difficult and narrow in this case where the offences obiected are iustifiable and if they be offences this reflects upon the House which hath not punished them The cases of 3 E. 3.19 and 1 and 2 Phil. Mar. have been obâ—ected But for the last it is observable that no plea was pleaded to the Iurisdiction as it is in our case And if a Parliament-man or other which hath priviledge be impleaded in forraign Court and neglect his plea to the Iurisdiction the Court may well proceed 9 H. 7.14 36 H. 6.34 â— 13. Jac. In this Court the Lord Norreys that was a Peer of Parliament was indicted in this Court for the murder of one Bigoo and pleaded his pardon And there it was doubted how the Court should proceed against him for he by the Law ought to have his Tryall by his Peers And it was resolved that when he pleads his pardon or confesseth his fault thereby he gives iurisdiction to the Court and the Court may give Iudgment against him So that these cases where it was not pleaded to the Iurisdiction can be no president in our case The priviledge here is not claimed by Prescription or Charter therefore it is not good But I say that notwithstanding this it is good for where the common-Law outs a Court of Iurisdiction there needs no charter or prescription 10 H. 6.13 8 H. 8. Keilw 189. Br. n. c. 515. Where Sanctuary of a Church is pleaded there 's no need to make Prescription because every Church is a Sanctuary by the common-Law Therefore c. Heath the Kings Atturney the same day argued on the other side but briefly First he answered to the objections which had been made First he said That Informations might well be for matters of this nature which are not capitall and that there are many presidents of such Informations But note that he produced none of them 2 y. It hath been obiected That they are a Councill therefore they ought to speak freely But such speeches which here are pronounced prove them not Counsellors of State but Bedlams the addition of one word would have made it Treason to wit Proditoriè But it is the pleasure of the King to proceed in this manner as now it is And there is great difference between Bills and Libells and between their proceedings as Counsell and as Mutinous 3 ly That it would be of dangerous consequence for by this means none would adventure to complain of grievances I answer They may make their complaints in Parliamentary manner but they may not move things which tend to distraction of the King and his Government 4 ly These matters may be punished in following Parliaments But this is impossible for following Parliaments cannot know with what minde these matters were done Also the House of Commons is not a Court of Iustice of itself The two Houses are but one Body and they cannot proceed criminally to punish crimes but onely upon their Members by way of imprisonment and also they are not a Court of Record And they have forbid their Clerk to make entry of their Speeches but onely of matters of course for many times they speak
detract from the Religion here established The People of England having yet in memory the intended Cruelty of 88. and hating the Popish Religion generally loathed this Match and would have bought it off at the dearest rate and what they durst opposed it by speeches counsels wishes prayers but if any one spake lowder then his fellows he was soon put to silence disgrac'd and cross'd in Court-preferments when as in Spain and Flanders Books were penned and Pictures printed to disgrace the King and State For which the English Ambassadors sought satisfaction but in vain The Roman Catholicks desired the Match above measure hoping for a moderation of Fines and Laws perhaps a Toleration yea a total Restauration of their Religion for they gained more and more Indulgence by the long-spun Treaty The Articles of Religion were long hammered upon the Spanish Anvil inlarged and multiplied by new Demands without end The Conde Gondomar an active subtil Instrument to serve his Masters ends neglected no occasion tending thereunto which he mainly shewed in the particular of Sir Walter Rawleigh wherein he put forth all his Strength to destroy him being one of the last Sea-Commanders then living bred under Queen Elizabeth and by her flesh'd in Spanish blood and ruin He did first under-work his Voyage to Guienna which seemed to threaten loss and danger to the spreading power of Spain in the West-Indies and after his return with misfortune he pursued him to death In the beginning of the Kings Reign this Gentleman with others was arraigned and condemned for Treason 't was a dark kinde of Treason and the vail is still upon it The King had ground enough to shew mercy which some of that condemned party obtained After many years imprisonment Sir Walter Rawleigh desirous of liberty and action propounded an American voyage upon the assurance of gaining a Mine of Gold in Guienna The King hearkned to him and gave him power to set forth Ships and Men for that Service but commanded him upon his Allegiance to give under his hand the number of his Men the burden and strength of his Ships together with the Country and River which he was to enter All this was done and came so timely to Gondomars knowledge that Advertisement was sent to Spain and thence to the Indies before this English Fleet departed out of the Thames The Action proved unfortunate and the Mine was inaccessible the Spaniards at St. Thomas opposed their passage up the River and this engaged them to assault the Town which they took sacked and burnt Gondomar hereat incensed with a violent importunity demanded the reparation of this wrong And the Spanish Faction urged that this irruption might make a breach both of the Match and Peace with Spain The Kings fears kindled his wrath he disavowed the Action and to prevent the like for the future put forth a severe Proclamation Hereupon the storm of Passion ceased and Rawleigh knowing nothing but that he might appear in England with safety put in at Plimouth and was no sooner landed but by secret intimation understanding his danger sought to escape beyond Sea but was taken in the attempt brought to London and recommitted to the Tower and at length his life was offered up a Sacrifice for Spain but not upon such grounds as the Ambassador had designed for he desired a Judgment upon the pretended breach of Peace that by this occasion he might slily gain from the English an acknowledgment of his Masters right in those places and hereafter both stop their mouths and quench their heat and valor But the late voyage was not brought in question onely his former Condemnation was revived his Araignment at Winchester many years before was now laid open and he at the Kings Bench demanded why Execution should not be done upon him according to the Sentence therein pronounced Rawleigh answered That the Kings late Commission gave him a new life and vigor For he that hath power over the lives of others ought to be Master of his own This Plea was not accepted but the former Judgment took place and accordingly he lost his Head upon a Scaffold erected in the Old Pallace at Westminster Whilest Spain and England were thus closing the fire brake out in Germany between the States and Princes Protestant and the House of Austria These commotions involved and drew along the affairs of most Christian Princes especially of the two Potent Kings now in Treaty The Catholick Cause and the Lot of the House of Austria engaged the King of Spain who was the strongest Branch of that Stock King Iames must needs be drawn in both by common and particular Interest the Religion which he professed and the State of his Son in Law the Elector Palatine who became the principal part in those Wars and the most unfortunate It was an high business to the whole Christian World and the issue of it had main dependence upon the King of England being the Mightiest Prince of the Protestant Profession But this Kings proceedings were wholly governed by the unhappy Spanish Treaty The clouds gather thick in the German skie jealousies and discontents arise between the Catholicks and the Evangelicks or Lutherans of the Confession of Ausburge Both parties draw into Confederacies and hold Assemblies the one seeking by the advantage of power to incroach and get ground the other to stand their ground and hold their own The potency of the House of Austria a House devoted to the Persecution of the Reformed Religion became formidable The old Emperor Matthias declared his Cousin German the Archduke Ferdinand to be his adopted Son and Successor and caused him to be chosen and crowned King of Bohemia and Hungary yet reserving to himself the sole exercise of Kingly power during his life The Iesuits triumph in their hopes of King Ferdinand the Pope exhorted the Catholicks to keep a day of Jubilee and to implore aid of God for the Churches high occasions To answer this Festival the Elector of Saxony called to minde that it was then the Hundreth year compleat since Martin Luther opposed the Popes Indulgences which was the first beginning of Protestant Reformation Whereupon he ordained a Solemn Feast of three days for Thanksgiving and for Prayer to God to maintain in peace the purity of the Word and the right administration of the Sacraments The Professors of the Universities of Lipsick and Wittemberg the Imperial Towns of Franckford Worms and Noremburg yea the Calvinists also observed the same days of Jubilee against the Romish Church and much Gold and Silver was cast abroad in memory of Luther whom they called Blessed In these times the Emperor wrote Letters both to the Elector Palatine and to the Protestant Provinces and States of the Empire then assembled at Hilbrun advising them to acquiesce in what was done touching the designation of his adopted Son to the Empire to observe the Golden Bull the Magna Charta of the Empire and the matter of it
most loving Kinsman C. P. Given at Our Palace of Saint Iames 14 Martii 1621. To the Right Honorable the Lord Balthazar of Zuniga Right Honorable and Wel-beloved Friend BEcause we have divers times been informed by your Friends of your singular propension and zeal towards our Affairs we neither will nor ought to leave you unsaluted at this time you have so well deserved of us But it will be no small accession of your good will if you continue as you have begun to promote by your assistance our concernments with his Majesty our Welbeloved Brother which by what way it may best be done our Ambassador the Baron John Digby will be able to direct you to whom we have intrusted the residue of that matter And if during his residence there he may make use of your singular Humanity and Favor with the King in his Negotiation it will be most acceptable to us and render us who were by your deservings already forward to oblige you most forward for the future to deserve well of you which we shall most willingly testifie as occasion offers not onely in word but in deed J. R. Given at our Palace of Theobalds March 14. 1621. Sir Walter Aston the Leiger Ambassador had managed that Treaty by directions received from Digby and now Digby remained at large in it and had communication of the Passages from him The Spaniards proceed in the Match with a very formal appearance for at this very time the Emperors Ambassador in Spain had discoursed of a Marriage between his Masters Son and the Infanta but was presently answered That the Kings hands were tied by a Treaty on foot with the King of Great Brittain and in this particular they seemed as said the English Agent to deal above board In the mean time the Privy Council by the Kings Commandment consulted about the raising of Moneys to defend the Palatinate They appointed the Keeper of the Records in the Tower to search for all such writings as concerned the Levies of Men at the Publick charge of the Countrey from the time of King Edward the Third until this present Likewise they directed Letters of the tenor following to the Justices of the Courts at Westminster and to the Barons of the Exchequer WHat endeavors his Majesty hath used by Treaty and by all fair and amiable ways to recover the patrimony of his Children in Germany now for the most part withholden from them by force is not unknown unto all his loving â—ubjects since his Majesty was pleased to communicate to them in Parliament his whole proceedings in that business Of which Treaty being of late frustrate he was inforced to take other resolutions namely to recover that by the Sword which by other means he saw no likelihood to compass For which purpose it was expected by his Majesty that his people in Parliament would in a cause so nearly concerning his and his Childrens interest have chearfully contributed thereunto But the same unfortunately failing his Maâ—esty 〈◊〉 constrained in a case of so great necessity to try the dutiful affections of his â—â—ing Subjects in another way as his Predecessors have done in former times by propounding unto them a voluntary contribution And therefore as your selves have already given a liberal and worthy example which his Majesty doth take in very gratious part so his pleasure is and we do accordingly hereby authorise and require your Lordships as well to countenance and assist the service by your best means in your next Circuits in the several Counties where you hold General Assizes as also now presently with all convenient expedition to call before you all the Officers and Attorneys belonging to any his Majesties Courts of Iustice and also all such others of the Houses and Societies of Court or that otherwise have dependence upon the Law as are meet to be treated withal in this kinde and have not already contributed and to move them to joyn willingly in this contribution in some good measure answerable to that your selves and others have done before us according to their means and fortunes Wherein his Majesty doubteth not but beside the interest of his Children and his own Crown and Dignity the Religion professed by his Majesty and happily flourishing under him within this Kingdom having a great part in the success of this business will be a special motive to incite and perswade them thereunto Nevertheless if any persons shall out of obstinacy or disaffection refuse to contribute herein proportionably to their Estates and Means you are to certifie their names unto this Board And so recommending this service to your best care and endeavor and praying you to return unto us Notes of the names of such as shall contribute and of the sums offered by them We bid c. Letters to the same effect were directed to the High Sheriffs and Justices of Peace of the several Counties and to the Majors and Bailiffs of every City and Town-Corporate within the Kingdom requiring them to summon all of known Abilities within their Jurisdictions and to move them to a chearful contribution according to their Means and Fortunes in some good measure answerable to what others well-affected had done before them And to make choice of meet Collectors of the Moneys and to return a Schedule of the names of such as shall contribute and the sums that are offered by them that his Majesty may take notice of the good inclinations of his Subjects to a cause of such importance as likewise of such others if any such be as out of obstinacy or disaffection shall refuse to contribute About this time George Abbot Archbishop of Canterbury began to fall into disgrace at Court his enemies taking the advantage of a late sad misfortune for shooting at a Deer with a Cross-bow in Bramzil Park he casually killed the Keeper Upon this unhappy accident it was suggested to the King who already disgusted him for opposing the Match with Spain That in regard of his eminent rank in the Church it might administer matter of Scandal which was aggravated by such as aspired unto his place and dignity The Bishop of Lincoln then Lord Keeper informed the Marquess of Buckingham That by the Common Law of England the Archbishops whole estate was forfeited to the King and by the Common Law which is still in force he is made irregular ipso facto and so suspended from all Ecclesiastical Function until he be restored by his Superior which was the Kings Majesty in this rank and order of Ecclesiastical Jurisdiction To adde affliction to the afflicted said he will be against his Majesties nature yet to leave a man of Blood Primate and Patriark of all his Churches is a thing that sounds very harsh in the Old Councils and Cannons and the Papists will not spare to censure it The King made choice of the Lord Keeper the Bishops of London Winton Rochester St. Davids and Exeter Sir Henry Hobart Justice Doderidge Sir Henry Martin
impaired the same I would you would hasten for my Supply or else it will be worse for your selves For if any ill happen I think I shall be the last shall feel it Afterwards the Commons fell upon the Duke as the chief Cause of all Publick Miscarriages Doctor Turner a Physitian propounded in the House these Questions which were then commonly called Queries against the Duke of Buckingham and were grounded upon Publick Fame 1. Whether the Duke being Admiral be not the Cause of the loss of the Kings Royalty in the Narrow-Seas 2. Whether the unreasonable exorbitant and immense Gifts of Money and Lands bestowed on the Duke and his Kindred be not the Cause of impairing the Kings Revenue and impoverishing of the Crown 3. Whether the Multiplicity of Offices conferred upon the Duke and others depending upon him whereof they were not capable be not the Cause of the Evil Government of this Kingdom 4. Whether Recusants in general by a kind of Connivencie be not borne out and increased by reason of the Dukes Mother and Father-in-law being known Papists 5. Whether the Sale of Honors Offices and Places of Judicature and Ecclesiastical Livings and Promotions a scandal and hurt to the Kingdom be not through the Duke 6. Whether the Dukes staying at home being Admiral and General in the Fleet of the Sea and Land-Army were not the Cause of the bad success and overthrow of that Action And whether he did give good direction for that Design All these are famed to be so Hereupon two Questions were moved in Parliament 1. Whether the Six Heads delivered by Doctor Turner to be the Cause of the Evils that were grounded upon Common Fame be to be debated in Parliament 2. Whether an Accusation upon Common Fame by a Member of this House be a Parliamentary way It was declared by Sir Tho. Wentworth Mr. Noy and other Lawyers in the Debate That there was a difference between Common Fame and Rumor For the General voice Vox populi is Common Fame And if Common Fame might not be admitted as an Accuser Great men would be the onely safe men for no Private person dare adventure to enquire into their Actions But the House of Commons is a House of Information and Presentment but not a House of Definitive Judgment So the House came to this Resolution That Common Fame is a good ground of Proceeding for this House either by Enquiry or presenting the Complaint if the House finds cause to the King or Lords The Commons the next day proceeding in that Debate Sir Richard Weston delivered to the House this Message from his Majesty THat his Majesty had taken notice of a seditious Speech uttered in the House by Mr. Clement Cook The words are said to be to this effect That it were better to die by an Enemy then to suffer at home Yet his Majesty in his wisdom hath forborne to take any course therein or to send to the House about it not doubting but the House would in due time correct such an Insolence But his Majesty hath found that his patience hath wrought to an ill effect and hath imboldened one since to do a strange act in a strange way and unusual that is Doctor Turner who on Saturday last without any ground of knowledge in himself or Proof tendred to the House made an Enquiry of sundry Articles against the Duke of Buckingham as he pretended but indeed against the Honor and Government of the King and his late Father This his Majesty saith is such an Example that he can by no means suffer though it were to make Enquiry of the meanest of his Servants much less against one so neer unto himself and doth wonder at the foolish impudencie of any man that can think he should be drawn out of any end to offer such a Sacrifice much unworthy the greatness of a King and Master of such a Servant And therefore his Majesty can no longer use his wonted patience but desireth the Justice of the House against the Delinquents not doubting but such course will be taken that he shall not be constrained to use his Regal authority to right himself against these two Persons Upon this Message Doctor Turner made a short Explanation of himself desiring to know wherewith he was charged What he said he said the House can witness and what he said he spake for the general good of the Commonwealth and not upon the least reflection of any in particular This he thought a Parliamentary way warranted by antient Presidents To accuse upon Common Fame he finds warranted first by the Imperial Roman Laws and the Canons of the Church which allowed Common Fame sufficient to accuse any man And they that are learned amongst them give two reasons First for Greatness Next for Cunning. Our Ancestors within these walls have done the like and that to a Duke the Duke of Suffolk in the time of King H. 6. who was accused upon Fame And lastly he said Mr. Chancellor himself did present the Common Undertakers upon Particular Fame and why he should not have as ample priviledge in this place he knew no reason to the contrary The Commons having appointed another day for the Debate of this Business in the mean time came this Letter from Doctor Turner to the Speaker SIR THese Lines first Petition you to signifie to the Honorable House of Commons That my desires are still the same to have made my personal appearance before you but my ability and strength to perform it are not the same And therefore that I humbly desire them to excuse me on that part and to accept of this my Answer unto the matter I shall speak to I do confess that on Saturday last in the afternoon I did deliver in certain Accusations of Common Fame into the House of Parliament against my Lord Admiral and that out of so many all bearing the signiture of Vox populi I chose out some few not because they were greater or more known Grievances but because they did seem to direct us to find out the Griever or the first Cause For I did think it was then full time to agree the Agent and the Actions and that it was time also to leave considering Grievances in Arbitration I do now also agree unto you that which hath been reported unto you by Mr. Wandesford and by that if you shall think sit will put my self unto your Censure hoping and assuring my self that you will find my design to include nothing else within it but duty and publick service to my Country and also that my addressing those Accusations unto the House of Parliament shall by you be found to be done by a mannerly and Parliamentary way But howsoever it becomes me to submit my Cause to your Wisdoms and equal Iudgments which I do heartily and whatsoever you shall please to appoint me I shall dutifully satisfie when God shall be pleased to restore me able to attend your service I doubt
the other Knight being Robert Clifford it was agreed in Parliament that he should have the voices of both because the other must of necessity be absent And they both amongst other things petitioned the Council that if the King in his Person should come on the Sea they might have such a liberty to wait upon him as they might make their Lieutenant during the time for the service of their places But the Council that allowed the rest or most of their demands answered to that Le Councel ne pent faire Then he estimated the nature of the offence by the consequences which follow the not guarding of the Seas viz. 1. The losses already shewed 2. The prevention of Trade which gives life to the wealth of the Kingdom 3. The weakning of the Naval strength the Merchants being thereby discouraged from building ships which they cannot use In 1 Rich. 2. the Commons opened the two chief and almost whole Causes of the weakning the Kingdom at that time the neglect of Chivalry and eminent vertue not regarded nor rewarded the decay of Trade since the Navy was grown weak besides all the loss of quiet possession of so large a Territory as the Seas of England and Ireland by the free use of which the ancient glory and greatness of the Crown of England hath so constantly subsisted Then he instanced in Michael de la Pool Lord Chancellor who in 9 Rich. 2. mis-spent Subsidies given pro salva custodia maris as appears in the Roll and was adjuged in Parliament though for other offences because some other Lords of the Council had been trusted with him and it was not fit to impeach him sans les companions they taking it for a crime without question fit to be complained of Secondly in William Duke of Suffolk who for the same fault being Admiral onely in the right of Henry Earl of Exeter his Ward was by the King extraordinarily commanded into banishment Then he brought examples of such who had been put to death and confiscated for not safe-guarding Towns and Castles and Forts which are of like nature with not safe-guarding the Seas and with losing the possession of the Crown To the Fifth he said The staying of the ship called the Peter of Newhaven and detaining part of the goods was against the Marine Laws of England against the Common Laws against the Laws of Merchants and consequently the Law of Nations By the Marine Laws agreeable to the Civil Laws sentence given by any Subject or other against the King may upon new proof be revoked but not without new proof He made by his Patent a Judge of all Maritine Causes as well as Keeper of the Seas his Jurisdiction was to be exercised juxta leges nostras civiles Maritimas and accordingly to hear all Causes and generally to proceed ex officio mero mixto promoto secundum leges nostras Civiles Maritimas Against the Common-Laws All Justices and all other deputed to do Law or Right are commanded by Act of Parliament to permit the course of ordinary Justice and although they be commanded to do the contrary that they do execution aright and according to justice as far as in them lies and so for any Letters of Commandment which may come unto them from us or from any other or by any other cause Against the Law of Nations Against what is agreed by the Leagues between us and Forain Nations That the Subjects of Nations in Amity with us shall be well used and permitted without Molestation for what cause or occasion soever according to the Laws and Customs of the places where they shall be Lastly against the Laws of Merchants which is to have Celerem justitiam The Consequences of this Offence are 1. Great damage to our English Merchants that have suffered by reason of it in Forain Parts as they alleadge 2. It is a discouragement to those that are Subjects to the Marine Jurisdiction 3. An example that may serve hereafter to justifie all absolute Authority in the Admiral without Law or Legal course over the ships and good of all Merchants whatsoever and so no security to Merchants Lastly He instanceth in the Duke of Suffolk who was adjudged in Parliament for Treason and among other offences it was laid to his charge that he took to his own use goods Piratically taken and expresly against the Order determined by the Lord Protector and the whole Council whereunto his hand had been for the restitution of them Next were read the Sixth Seventh and Eighth Articles viz. VI. Whereas the honor wealth and strength of this Realm of England is much increased by the Traffick chiefly of such Merchants as imploy and build great warlike Ships a consideration that should move all Counsellors of State especially the Lord Admiral to cherish and maintain such Merchants The said Duke abusing the Lords of the Parliament in the One and twentieth year of the late King Iames of famous memory with pretence of serving the State did oppress the East India Merchants and extorted from them Ten thousand pounds in the subtil and unlawfull manner following About February in the year aforesaid he the said Duke hearing some good success that those Merchants had at Ormus in the parts beyond the Seas by his Agents cunningly in or about the moneth aforesaid in the year of the said late King endeavored to draw from them some great sum of money which their poverty and no gain by that success at Ormus made those Merchants absolutely to deny whereupon he the said Duke perceiving that the said Merchants were then setting forth in the course of their Trade four Ships and two Pinaces laden with goods and merchandise of very great value like to lose their voyage if they they should not speedily depart The said Duke on the first of March then following in the said year of the said late King did move the Lords then assembled in the said Parliament whether he should make stay of any Ships which were then in the Ports as being high Admiral he might and namely those ships prepared for the East India voyage which were of great burthen and well furnished which motion being approved by their Lordships the Duke did stay those ships accordingly but the fifth of March following when the then Deputy of that Company with other of those Merchants did make suit to the said Duke for the release of those Ships and Pinaces he the said Duke said he had not been the occasion of their staying but that having heard the motion with much earnestness in the Lords House of Parliament he could do no less then give the order they had done and therefore he willed them to set down the reasons of their suit which he would acquaint the House withall yet in the mean time he gave them leave to let their said ships and Pinaces fall down as low as Tilbury And the tenth of March following an unusual joynt action was by his procurement entred
and to lend after the rate propounded and among others certain of the Parish of Clement Danes the Savoy the Dutchy and other parts within the Liberties of Westminster who first alledged poverty Whereunto reply was made That if they would but subscribe their ability should be enquired off before any thing were levied upon them and in case they were found unable they should be discharged notwithstanding what they had under written and unto some of them the money demanded was proffered to be given them Nevertheless they afterwards absolutely refused to subscribe their names or to say they were willing to lend if able Whereupon the Council directed their Warrant to the Commissioners of the Navy to impress these men to serve in the Ships ready to go out in his Majesties service The Non-Subscribers of higher Rank and Rate in all the Counties were bound over by Recognisance to tender their appearance at the Council Table and performed the same accordingly and divers of them were committed to prison but the common sort to appear in the Military-Yard near St. Martins in the Fields before the Lieutenant of the Tower of London by him to be there inrolled among the Companies of Soldiers that they who refused to assist with their Purses should serve in their Persons for the common Defence The same Loan being demanded of the Societies and Inns of Court the Benchers of Lincolns Inn received a Letter of Reproof from the Lords of the Council for neglecting to advance the Service in their Society and to return the names of such as were refractory ANd for the advancement of the said Loan Doctor Sibthorpe now publishes in Print a Sermon Preached by him at Northampton February the Two and twentieth One thousand six hundred twenty and six at Lent Assizes entituled Apostolick Obedience This Book was Licenced by the Bishop of London who did approve thereof as a Sermon learnedly and discreetly Preached It was dedicated to the King and expressed to be the Doctors Meditations which he first conceived upon his Majesties Instructions unto all the Bishops of this Kingdom fit to be put in execution agreeable to the necessity of the times and afterwards brought forth upon his Majesties Commission for the raising of moneys by way of Loan His Text was Romans 13.7 Render therefore to all their dues Among other passages he had this And seriously consider how as Jeroboam took the opportunity of the breach betwixt Rehoboam and his Subjects to bring Idolatry into Israel So the Papists lie at wait if they could finde a Rent between our Soveraign and his Subjects which the Lord forbid to reduce Superstition into England I speak no more then what I have heard from themselves whilst I have observed their forwardness to offer double according to an Act of Parliament so providing yea to profess That they would depart with the half of their Goods And how or why can this forwardness be in them but in hope to cast the imputation of frowardness upon us and so to seem that which the Iesuite will not suffer them to be loving and loyal Subjects Also the said Sermon holds forth That the Prince who is the Head and makes his Court and Council it is his duty to direct and make Laws Eccles. 8.3 and 4. He doth whatsoever pleases him Where the word of the King is there is power and who may say unto him What doest thou And in another place he saith If Princes command any thing which Subjects may not perform because it is against the Laws of God or of Nature or impossible Yet Subjects are bound to undergo the punishment without either resistance or railing or reviling and so to yield a Passive Obedience where they cannot exhibite an active one I know no other case saith he but one of those three wherein a Subject may excuse himself with Passive Obedience but in all other he is bound to Active Obedience It is not our purpose to repeat his Sermon the Reader may at leisure inform himself more fully by the Printed Copy Doctor Roger Manwaring promoted the same business in two Sermons Preached before the King and Court at Whitehal wherein he delivered for Doctrine to this purpose That the King is not bound to observe the Laws of the Realm concerning the Subjects Rights and Liberties but that his Royal Will and Command in imposing Loans and Taxes without common consent in Parliament doth oblige the Subjects Conscience upon pain of eternal damnation That those who refused to pay this Loan offended against the Law of God and the Kings Supream Authority and became guilty of impiety disloyalty and Rebellion And that the Authority of Parliament is not necessary for the raising of Aids and Subsidies and that the flow proceedings of such great Assemblies were not fitted for the Supply of the States urgent Necessities but would rather produce sundry impediments to the just designs of Princes The Papists at this time were forward and liberal on this occasion insomuch that it was said in those times That in the point of Allegiance then in hand the Papists were exceeding Orthodox and the Puritans were the onely Recusants Distastes and Jealousies had for a while been nourished between the Courts of England and France which seemed to have risen from Disputes and Differences about the Government of the Queens family By the Articles of Marriage it was agreed That the Queen should have a certain number of Priests for her Houshold Chaplains together with a Bishop who should exercise all Ecclesiastical Jurisdiction in matters of Religion These with other Romish Priests within this Realm began to practise and teach That the Pope upon the Marriage Treaty assumed to himself or his Delegates the Jurisdiction of the Queens whole family especially the Institution and Destitution of the Ecclesiasticks and that the King of England had no power to intermeddle therein because he was an Heretick the Pope threatning to declare those to be Apostates that should seek their establishment from the King Likewise the Queen insisted to have the ordering of her family as her self pleased and the naming of her Officers and Servants and being therein crossed did somewhat distaste the King and unkindness grew between them These things the King represented to his Brother of France imputing the same to the Crafty and Evil Counsels of her Servants rather then to her own inclination And so declared he could no longer bear with those that were the known causes and fomenters of these disturbances but would presently remove them from about his Wife if there were nothing more then this That they had made her go to Tiborne in devotion to pray there Which action as it was reported his Majesty said can have no greater invective made against it then the bare relation yet his Majesty acknowledged That the deportment of some of them was without offence but others of them had so much abused his patience and affronted his Person reflecting most upon
Barnardiston of the County of Suffolk and William Coriton Esq of the County of Cornwal were secured in the County of Sussex Sir Harbotle Grimston of the County of Essex and Sir Robert Points were secured in Northamptonshire Iohn Hampden Esq and others of the County of Bucks were secured in Hampshire and the like course was taken with the Gentry of other Counties who refused the Loan And the Council ordered that all those Refractory persons before-named for so they are called in the Order who are appointed by his Majesties command to their several Commitments shall presently obey the Order of the Board sent with their Messenger in that behalf or be committed close prisoners any pretence of inability want of conveniency or any excuse whatsoever notwithstanding Many of those Gentlemen were afterwards sent for by Pursevants out of those Counties where they were confined by Order of the Council and committed to several Prisons some to the Fleet some to the Marshalsey and Gatehouse and others remained in the custody of the Messengers And from the Gatehouse Sir Iohn Elliot sends this Petition to his Majesty To the Kings most Excellent Majesty The humble Petition of Sir Iohn Elliot Knight Prisoner in the Gate-house concerning the Loan Sheweth THat your poor Suppliant affected with sorrow and unhappiness through the long sense of your Majesties displeasure willing in every act of Duty and Obedience to satisfie your Majesty of the loyalty of his heart then which he hath nothing more desired that there may not remain a jealousie in your Royal Brest that stubbornness and will have béen the motives of his forbearing to condescend to the said Loan low as your Highness foot with a sad yet a faithful heart for an Apology to your Clemency and Grace he now presumes to offer up the Reasons that induced him which he conceiveth necessity of his Duty to Religion Justice and your Majesty did inforce The Rule of Iustice he takes to be the Law impartial Arbiter of Government and Obedience the support and strength of Majesty the observation of that Iustice by which Subjection is commanded This and Religion added to this Power not to be resisted binds up the Conscience in an Obligation to that Rule which without open prejudice and violence of these duties may not be impeached In this particular therefore of the Loan being desirous to be satisfied how far the Obligation might extend and resolving where he was left Master of his own to become Servant to your Will he had recourse unto the Laws to be informed by them which in all humility he submitteth to your most Sacred view in the Collections following In the time of Edward the First he findeth that the Commons of that age were so tender of their Liberties as they feared even their own frée acts and gifts might turn them to a Bondage and their Heirs Wherefore it was desired and granted That for no business such manner of Aids Taxes nor Prizes should be taken but by common assent of the Realm and for the common profit thereof The like was in force by the same King and by two other Laws again Enacted That no Tallage or Aid should be taken or levied without the good will and assent of the Archbishops Bishops Earls Barons Knights Burgesses and other Freeman of the Land And that Prudent and Magnanimous Prince Edward the Third led by the same Wisdom having granted That the greatest gift given in Parliament for the Aid and speed of his matchless undertaking against France should not be had in Example nor fall to the prejudice of the Subject in time to come did likewise adde in Confirmation of that Right That they should not from thenceforth be grieved to sustain any Charge or Aid but by the Common Assent and that in Parliament And more particularly upon this point upon a Petition of the Commons afterwards in Parliament it was established That the Loans which are granted to the King by divers persons be released and that none from henceforth be compelled to make such Loans against their Wills because it is against Reason and the Franchises of the Land and Restitution be made to such as made such Loans And by another Act upon a new occasion in the time of Richard the Third it was ordained That the Subject in no wise be charged with any such Charge Exaction or Imposition called a Benevolence nor such like Charge and that such like Exactions be damned and annulled for ever Such were the Opinions of these times for all these Aids Benevolences Loans and such like Charges exacted from the Subject not in Parliament which they held to be Grievances contrary to their Liberties and illegal and so pious were their Princes in Confirmation of their Liberties as having secured them for the present by such frequent Laws and Statutes they did likewise by them provide for their Posterity and in some so strictly that they bound the Observation with a Curse as in that of 33 Edw. 1. And also under pain of Excommunication as by the other of the Five and twentieth of the same King which was to be denounced against all those that violate or break them which Act extends to us And these Reasons he presents to your Majesty as the first Motive taken from the Law There are others also which in his humble apprehension he conceived from the Action it self which he likewise tenders to your most Excellent Wisdom First That the Carriage and Instructions accompanied with the Authority of the Great Seal imported a Constraint such Requests to Subjects being tacite and implied Commands and so preventing that readiness and love which in a frée way would have far excéeded those Demands whereas the wonted Aids given to your happy Ancestors were Ex spontanea voluntate charitate populi whereby they made that Conjunction of their Hearts at home which wrought such power and reputation to their acts abroad Whereas the firmest Obligation of that readiness and love is the benignity of Princes giving and preserving to their People just and decent Liberties which to this Kingdom are derived from the Clemency and Wisdom of your Progenitors to whom there is owing a Sacred Memory for them He could not as he feared without pressure to these immunities become an actor in this Loan which by imprisonment and restraint was urged contrary to the Grants of the Great Charter by so many glorious and victorious Kings so many times confirmed being therein most confident of your Majesty that never King that raigned over us had of his own benignity and goodness a more pious disposition to preserve the just Liberties of his Subjects then your Sacred Self Though we were well assured by your Majesties Royal Promise whose words he holds as Oracles of Truth that it should become a president during the happiness of your Raign the long continuance whereof is the daily subject of his Prayers yet he conceived from thence a fear that succeeding Ages might thereby take occasion
of the Land for freemen to be taxed but by their consent in Parliament Franchise is a French word and in Latine it is Libertas In Magna Charta it is provided that Nullus liber homo capiatur vel imprisoâ—etur aut disseisietur de libero tenemento suo c. nisi per legale judicium parium suorum vel per legem terrae which Charter hath been confirmed by good Kings above thirty times When these Gentlemen had spoken Sir Iohn Cook Secretary of State took up the matter for the King and concluded for redress of Grievances so that Supplies take the precedency And said I had rather you would hear any then me I will not answer what hath been already spoken my desire is not to stir but to quiet not to provoke but to appease my desire is that every one resort to his own heart to reunite the King and the State and to take away the scandal from us every one speaks from the abundance of his heart I do conclude out of every ones Conclusion to give to the King to redress Grievances all the difference is about the manner we are all Inhabitants in one House the Commonwealth let every one in somewhat amend his house somewhat is amiss but if all the House be on fire will we then think of amending what 's a miss will you not rather quench the fire the danger all apprehend The way that is propounded I seek not to decline illegal courses have been taken it must be confessed the redress must be by Laws and Punishment but withal add the Law of Necessity Necessity hath no Law you must abilitate the State to do what you do by Petition require It is wished we begin with Grievances I deny not that we prepare them but shall we offer them first will not this seem a Condition with his Majesty do we not deal with a wise King jealous of his Honor All Subsidies cannot advantage his Majesty so much as that his Subjects do agree to Supply him This will amaze the Enemy more then ten Subsidies begin therefore with the King and not with our selves This dayes Debate said Sir Robert Philips makes me call to minde the custom of the Romans who had a solemn feast once a year for their Slaves at which time they had liberty without exception to speak what they would whereby to ease their afflicted minds which being finished they severally returned to their former servitude This may with some resemblance and distinction well set forth our present State where now after the revolution of some time and grievous sufferings of many violent oppressions we have as those Slaves had a day of liberty of speech but shall not I trust be herein Slaves for we are free we are not Bondmen but Subjects these after their Feast were Slaves again but it is our hope to return Freemen I am glad to see this mornings work to see such a sense of the Grievances under which we groan I see a concurrence of grief from all parts to see the Subject wronged and a fit way to see the Subject righted I expected to see a division but I see honorable conjunction and I take it a good Omen It was wished by one that there were a forgetfulness of all let him not prosper that wisheth it not No there is no such wayes to perfect remedy as to forget injuries but not so to forget as not to recover them It was usual in Rome to bury all injuries on purpose to recover them It was said by a Gentleman that ever speaks freely We must so govern our selves as if this Parliament must be the Chrysis of all Parliaments and this the last I hope well and there will be no cause for the King our Head to except against us or we against him The dangers abroad are presented to us he is no English man that is not apprehensive of them We have provoked two Potent Kings the one too near who are too strongly joyned together the dangers are not Chimerical but real I acknowledge it but it must be done in proportion of our dangers at home I more fear the violation of Publick Rights at home then a Forein Enemy Must it be our duties and direction to defend Forein dangers and establish security against them and shall we not look at that which shall make us able and willing thereunto We shall not omit to confide and trust his Majesty otherwise our Councils will be with fears and that becomes not Englishmen The unaccustomed violences I have nothing but a good meaning â—rench into all we have To the four particulars already mentioned wherein we suffer one more may be added Lest God forbare to hear me in the day of my trouble our Religion is made vendible by Commissions Alas now a tolleration is granted little less and men for pecuniary annual rates dispenced withal whereby Papists without fear of Law practise Idolatry and scoff at Parliaments at Laws and all it is well known the people of this State are under no other subjection then what they did voluntarily consent unto by the original contract between King and people and as there are many Prerogatives and Priviledges conferred on the King so there are left to the Subject many necessary Liberties and Priviledges as appears by the Common Laws and Acts of Parliament notwithstanding what these two Sycophants have prated in the Pulpit to the contrary Was there ever yet King of England that directly ever violated the Subjects Liberty and Property but their actions were ever complained of in Parliament and no sooner complained of then redressed 21 E. 3. there went out a Commission to raise money in a strange manner the succeeding Parliament prayed redress and till H. 8. we never heard of the said Commissions again Another way was by Loan a worm that cankered the Law the Parliament did redress it and that money was paid again The next little Engine was Benevolence what the force of that was look into the Statute of R. 3. which damned that particular way and all other indirect wayes Since the Right of the Subject is thus bulwarkt by the Law of the Kingdom and Princes upon complainâ— have redressed them I am confident we shall have the like cause of joy from his Majesty I will here make a little digression The County I serve for were pleased to command me to seek the removal from them of the greatest burthen that ever people suffered It was excellently said Commissionary Lieutenants do deprive us of all Liberty if ever the like was seen of the Lieutenancy that now is I will never be believed more They tell the people they must pay so much upon a warrant from a Deputy Lieutenant or be bound to the good behavior and sent up to the Lords of the Council it is the strangest Engine to rend the Liberty of the Subject that ever was there was now a Decemviri in every County and amongst that
Duke of Bucks made a Speech at the Councel Table and Mr. Secretary at that time acquainted the House therewith The Speech was this SIr me thinks I behold you a great King for love is greater then Majesty opinion that the people loved you not had almost lost you in the opinion of the world But this day makes you appear as you are a glorious King loved at home and now to be feared abroad this falling out so happily give me leave I beseech you to be an humble suitor to your Majesty 1. For my self That I who have had the honour to be your Favorite may now give up that title unto them they to be your Favorites and I to be your Servant My second suit is That they having done also well you will account of them as one a body of many members but of all one heart opinion might have made them differ but affection did move them all to joyn with like love in this great gift for proportion although it be less then your occasions may ask yet it is more then ever Subjects did give in so short a time nor am I perswaded it will rest there for this is but as an earnest of their affections to let you see and the world know what Subjects you have that when the honor and the good of the State is ingaged and Aid asked in the ordinary way of Parliament you cannot want This is not the gift of five Subsidies alone but the opening of a Mine of Subsidies that lieth in their hearts This good beginning hath wrought already these effects they have taken your heart drawn from you a Declaration that you will love Parliaments And again this will meet I make no question with such respect that their demands will be just dutiful and moderate for they that know thus to give know well what is fit to ask Then cannot your Majesty do less then out-go their demands or else you do less then your self or them for your Message begot trust their truth and your promises must then beget performances This being done then shall I with a glad heart behold this work as well ended as now begun and then shall I hope that Parliaments shall be made hereafter â—o frequent by the effects and good use of them as they shall have this further benefit to deter from approaching your ears those projecters and inducers of innovation as disturbers both of Church and Commonwealth Now Sir to open my heart and to ease my grief please you to pardon me a word more I must confess I have long lived in pain Sleep hath given me no rest Favors and Fortunes no content such have been my secret sorrows to be thought the man of separation and that divided the King from his People and them from him but I hope it shall appear they were some mistaken minds that would have made me the evil spirit that walketh between a good Master and loyal People by ill offices whereas by your Majesties favor I shall ever endeavour to approve my self a good spirit breathing nothing but the best of services to them all Therefore this day I account more blessed to me then my birth to see my self able to serve them to see you brought in love with Parliaments to see a Parliament express such love to you and God so love me and mine as I joy to see this day Mr. Secretary Cook also at this time repeated the substance of the Kings Answer to the Petition concerning Recusants And after he had done Sir Iohn Elliot expressed the great satisfaction which he apprehended the House in general and himself in special had received touching each particular of his Majesties gracious Answer but shewed his dislike that Mr. Secretary in the close of his Relation made mention of another in addition to his Majesty which formerly hath been a matter of complaint in the House the mixture with his Majesty not onely in the business but in his name Is it said he that any man conceives the mention of others of what quality soever can add incouragement or affection to us in our duties and loyalties towards his Majesty or give them greater latitude or extent then naturally they have or is it supposed that the power or interest of any man can add more readiness to his Majesty in his gracious inclination to us then his own goodness gives him I cannot believe it And as the sweetness and piety of his Majesty which we have in admiration makes me confident in this so the expressions of our duty so perspicuous and clear as already hath been given is my assurance for the other But Sir I am sorry there is this occasion that these things should be argued or this mixture which was formerly condemned should appear again I beseech you Sir let it not be hereafter let no man take this boldness within these Walls to introduce it though I confess for my particular I shall readily commend nay thank that man whose endeavors are applied in such Offices as may be advantageable for the publique Yet in this matter so contrary to the Customs of our Fathers and the honor of our Times I cannot without Scandal apprehend it nor without some Character or Exception pass it by that such interposition may fol the future be left Now let us proceed said he to those services that concern his Majesty and the Subject which I doubt not in the end will render us so real unto him that we shall not need more help to endear us to his favor The Commons having expressed their dutiful affections towards his Majesty in giving him so large a Gift as five Subsidies and having also shewed their care of the Subjects in the liberty of their Person and propriety in their Goods did now prepare to transmit their Resolves to the Lords for their concurrence and several Members were appointed to manage a Conference with the Lords concerning the same We shall briefly touch some Passages of that Conference as to the rational and historical Part thereof omitting to mention Precedents and Book-Cases lest they should prove tedious to the Reader SIr Dudly Diggs began with this Introduction I am commanded to shew unto your Lordships in general that the Laws of England are grounded on Reason more ancient then Books consisting much in unwritten Customs yet so full of Justice and true Equity that your most honorable Predecessors and Ancestors propugned them with a Nolumus mutari and so ancient that from the Saxon days notwithstanding the injuries and ruines of time they have continued in most part the same as may appear in old remaining Monuments of the Laws of Ethelbert the first Christian King of Kent Ina the King of the West Saxons Osfa of the Mercians and of Alfred the great Monarch who united the Saxon Heptarchie whose Laws are yet to be seen published as some think by Parliament as he says to that end ut qui sub uno rege sub una
lege regerentur And though the Book of Litchfield speaking of the times of the Danes says then Ius sopitum erat in regno leges consuetudines sopitae sunt and prava voluntas vis violentia magis regnabant quam Judicia vel Justitia yet by the blessing of God a good King Edward commonly called St. Edward did awaken those Laws and as the old words are Excitatas reparavit reparatas decoravit decoratas confirmavit which Confirmavit shews that good King Edward did not give those Laws which William the Conqueror and all his Successors since that time have sworn unto And here my Lords by many Cases frequent in our modern Laws strongly concurring with those of the ancient Saxon Kings I might if time were not more precious demonstrate that our Laws and Customs were the same I will onely intreat your Lordships leave to tell you That as we have now even in those Saxon times they had their Court Barons and Court Leets and Sheriffs Courts by which as Tacitus says of the Germanes their Ancestors Iura reddebant per pagos vicos and I do believe as we have now they had their Parliaments where new Laws were made cum consensu Praelatorum Magnatum totius Communitatis or as another writes cum consilio Praelatorum Nobilium sapientium Lâ—icorum I will add nothing out of Glanvile that wrote in the time of Hen. 2. or Bracton that writ in the days of Hen. 3. onely give me leave to cite that of Fortescue the learned Chancellor to Hen. 6. who writing of this Kingdom says Regnum istud moribus nationum regum temporibus eisdem quibus nunc regitur legibus consuetudinibus regebatur But my good Lords as the Poet said of Fame I may say of our Common Law Ingrediturque solo caput inter nubila condit Wherefore the cloudy part being mine I will make haste to open way for your Lordships to hear more certain Arguments and such as go on more sure grounds Be pleased then to know that it is an undoubted and fundamental Point of this so ancient Common Law of England That the Subject hath a true property in his goods and possessions which doth preserve as sacred that meum tuum that is the nurse of Industry and mother of Courage and without which there can be no Justice of which meum tuum is the proper object But the undoubted Birthright of true Subjects hath lately not a little been invaded and prejudiced by pressures the more grievous because they have been pursued by imprisonment contrary to the Franchises of this Land and when according to the Laws and Statutes of this Realm redress hath been sought for in a legal way by demanding Habeas Corpus from the Judges and a discharge by trial according to the Law of the Land success hath failed that now inforceth the Commons in this present Parliament assembled to examine by Acts of Parliament Precedents and Reasons the truth of the English Subjects liberty which I shall leave to learned Gentlemen to argue NExt after Sir Dudly Diggs spake Mr. Ed Littleton of the Inner-Temple That their Lordships have heard that the Commons have taken into consideration the matter of personal Liberty and after long debate thereof they have upon a full search and clear understanding of all things pertinent to the question unanimously declared That no Freeman ought to be committed or restrained in Prison by the command of the King or Privy Councel or any other unless some cause of the commitment detainer or restraint be expressed for which by Law he ought to be committed detained or restrained And they have sent me with other of their Members to represent unto your Lordships the true grounds of their resolution and have charged me particularly leaving the reasons of Law and Precedents for others to give your Lordships satisfaction that this Liberty is established and confirmed by the whole State the King the Lords Spiritual and Temporal and Commons by several Acts of Parliament the Authority whereof is so great that it can receive no Answer save by Interpretation or Repeal by future Statutes And these I shall minde your Lordships of are so direct in the point that they can bear no other exposition at all and sure I am they are still in force The first of them is the grand Charter of the Liberties of England first granted in the 17th year of King Iohn and renewed in the 9 tâ— year of Hen. 3. and since confirmed in Parliament above 30. times the words there are Chap. 29. Nullus liber homo capiatur vel imprisonetur aut disseisietur de libero tenemento suo vel liberis consuetudinibus suis aut utlagetur aut exuletur aut aliquo modo destruatar nec super eum ibimus nec eum mittemus nisi per legale judicium Parium suorum vel per legem terrae He then proceeded to open and argued learnedly upon the several Particulars in the last recited Clause of Magna Charta and further shewed That no invasion was made upon this personal Liberty till the time of King Ed. 3. which was soon resented by the Subject for in the 5. Ed. 3. Chap. 9. it is enacted That no man from henceforth shall be attached on any occasion nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattels seised into the Kings hands against the Form of the great Charter and the Law of the Land and 25 Edw. 3. Chap. 4. it is more full and doth expound the words of the grand Charter which is thus Whereas it is contained in the grand Charter of the Franchises of England that none shall be Imprisoned nor put out of his Freehold nor free Custom unless it be by the Law of the Land it is awarded assented and established That from henceforth none shall be taken by Petition or suggestion made to our Lord the King or to his Councel unless it be by Indictment or Presentment of his good and lawful People of the the same neighborhood which such Deed shall be done in due maner or by process made by Wâ—it original at the common Law nor that none be outed of his Franchises nor Office Freehold unless it be duly brought in Answer and fore-judged of the same by the course of the Law and that if any thing be done against the same it shall be redressed and holden for none and 28 Ed. 3. Chap. 3. it is more direct this Liberty being followed with fresh suit by the Subject where the words are not many but very full and significant That no man of what state and condition he be shall be put out of his Lands nor Tenements nor taken nor imprisoned nor disinherited nor put to death without it be brought in Answer by due process of the Law Several other Statutes were cited by him in confirmation of this point of the Liberty of the Subject The Kings Councel afterward made Objections to the said Argument
absurd and unreasonable thing to send a Prisoner to a Roman Emperor and not to write along with him the Cause alledged against him send therefore no man a Prisoner without his causes along with him Hoc fac vives and that was the first reason a tuto that it was not safe for the King in regard of Loss to commit men without a Cause The second Reason is That such commitments will destroy the endeavors of all men Who will endeavor to imploy himself in any profession either of War Merchandise or of any liberal knowledge if he be but Tenant at will of his Liberty for no Tenant at will will support or improve any thing because he hath no certain estate Ergo to make men Tenants at will of their Liberties destroys all industry and endeavors whatsoever And so much for these six principal Reasons A re ipsa A minore ad majus A remediis From the extent and universality From the infiniteness of the time A fine Loss of Honor. Loss of Profit Loss of Security Loss of Industry These were his Reasons Here he made another Protestation That if remedy had been given in this Case they would not have medled therewith by no means but now that remedy being not obtained in the Kings Bench without looking back upon any thing that hath been done or omitted they desire some provision for the future onely And here he took occasion to adde four Book Cases and Authorities all in the Point saying That if the learned Councel on the other side could produce but one against the Liberties so pat and pertinent oh how they would hug and cull it 16. H. 6. tit monstrance de faits 82. by the whole Court the King in his Presence cannot command a man to be arrested but an action of false imprisonment lieth against him that arresteth if not the King in his royal Presence then none others can do it Non sic itur ad astra 1. Hen. 7.4 Hussey reports the opinion of Markham chief Justice to Edw. 4. that he could not imprison by word of mouth and the reason because the party hath no remedy for the Law leaves every man a remedy of causless imprisonment he added that Markham was a worthy Judge though he fell into adversities at last by the Lord Rivers his means Fortescue Chap. 8. Proprio ore nullus Regum usus est to imprison any man c. 4. Eliz. Times blessed and renowned for Justice and Religion in Pl. 235. the common Law hath so admeasured the Kings Prerogative as he cannot prejudice any man in his inheritance and the greatest inheritance a man hath is the liberty of his Person for all others are accessary to it for thus he quoted the Orator Major haereditas venit unicuique nostrum a Jure legibus quam a parentibus And these are the four Authorities he cited in this point Now he propounded and answered two Objections First in point of State Secondly in the Course held by the House of Commons May not the Privy Councel commit without cause shewed in no matter of State where secrecie is required would not this be an hinderance to his Majesties service It can be no prejudice to the King by reason of matter of State for the cause must be of a higher or lower nature if it be for suspicion of Treason misprision of Treason or Felony it may be by general words couched if it be for any other thing of smaller nature as contempt and the like the particular cause must be shewed and no individuum vagum or uncertain cause to be admitted Again if the Law be so clear as you make it why needs the Declaration and Remonstrance in Parliament The Subject hath in this Case sued for remedy in the Kings Bench by Habeas Corpus and found none therefore it is necessary to be cleared in Parliament And here ends his Discourse And then he made a recapitulation of all that had been offered unto their Lordships That generally their Lordships had been advised by the most faithful Counsellors that can be dead men these cannot be daunted by fear nor muzled by affection reward or hope of preferment and therefore their Lordships might safely believe them particularly their Lordships had three several kinds of Proofs 1. Acts of Parliament judicial Precedents good Reasons First you have had many ancient Acts of Parliament in the Point besides Magna Charta that is seven Acts of Parliament which indeed are thirty seven Magna Charta being confirmed thirty times for so often have the Kings of England given their royal Assents thereunto 2. Judicial Precedents of grave and reverend Judges in terminis terminantibus that long since departed the world and they were many in number Precedents being twelve and the Judges four of a Bench made four times twelve and that is forty eight Judges 3. You have as he tearmed them vividas rationes manifest and apparent Reasons Towards the conclusion he declared to their Lordships That they of the House of Commons have upon great study and serious Consideration made a great manifestation unanimously Nullo contradicente concerning this great liberty of the Subject and have vindicated and recovered the Body of this fundamental Liberty both of their Lordships and themselves from shadows which sometimes of the day are long sometimes short and sometimes long again and therefore we must not be guided by shadows and they have transmitted to their Lordships not capita rerum Heads or Briefs for these compendia are dispendia but the Records at large in terminis terminantibus and so he concluded that their Lordships are involved in the same danger and therefore ex congruo condigno they desired a Conference to the end their Lordships might make the like Declaration as they had done Commune periculum commune requirit auxilium and thereupon take such further course as may secure their Lordships and them and all their Posterity in enjoying of their ancient undoubted and fundamental Liberties The two next days were spent in the Debate about Billeting of Soldiers upon the Subject against Law THursday the 10. of April Mr. Secretary Cook delivered this Message from the King That his Majesty desireth this House not to make any recess these Easter Holidays that the world may take notice how earnest his Majesty and we are for the publique affairs in Christendom the which by such a recess would receive interruption THis Message for non-recess was not well pleasing to the House SIr Robert Phillips first resented it and took notice That in 12. and 18. Iac. upon the like intimation the House resolved it was in their power to adjourn or sit hereafter said he this may be put upon us by Princes of less Piety let a Committee consider hereof and of our right herein and to make a Declaration And accordingly this matter touching his Majesties pleasure about the recess was referred to a Committee and to consider
Petition his Majesty made this reply Mr. Speaker and Gentlemen when I sent you my last Message I did not expect a reply for I intended it to hasten you I told you at your first meeting this time was not to be spent in words and I am sure it is less fit for disputes which if I had a desire to entertain Mr. Speakers preamble might have given me ground enough The question is not now what Liberty you have in disposing of matters handled in your House but rather at this time what is fit to be done Wherefore I hope you will follow my example in eschewing Disputations and fall to your important business You make a Protestation of your affection and zeal to my Prerogative grounded upon such good and just Reasons that I must believe you But I look that you use me with the like charity to believe what I have declared more then once since your meeting with us that I am as forward as you for the preservation of your true Liberties Let us not spend so much time in this that may hazard both my Prerogative and your Liberties to our enemies To be short go on speedily with your businesses without any more Apologies for time calls fast on you which will neither stay for you nor me Wherefore it is my duty to hasten as knowing the necessity of it and yours to give credit to what I say as to him that sits at the Helm For what concerns your Petition I shall make answer in a convenient time FRom this time to the 25th of the same Moneth the House in a grand Committee spent most of their time in Debate about Martial Law and part thereof in giving the Lords a meeting at two Conferences concerning some Resolves in order to a Petition of Right transmitted by the Commons to their Lordships at which time Sir Robert Heath and Serjeant Ashley the Kings Councel were permitted to argue against the same and Serjeant Ashley in his discourse said The Propositions made by the Commons tended rather to an Anarchy then a Monarchy 2. That if they be yielded unto it is to put a Sword into the Kings hand with one hand and to take it out with the other 3. That they must allow the King to govern by Acts of State otherwise he is a King without a Councel or a Councel without a Power 4. That the question is too high to be determined by Law where the Conqueror or conquered will suffer irreparable loss For which expressions the Lords called the Serjeant to an account and committed him to custody and afterwards he recanted what he said Friday 25 of April The Lords had a Conference with the Commons where the Lord Archbishop of Canterbury spake as followeth Gentlemen of the House of Commons THe Service of the King and safety of the Kingdom do call on my Lords to give all speedy expedition to dispatch some of these great and weighty Businesses before us For the better effecting whereof my Lords have thought fit to let you know that they do in general agree with you and doubt not but you will agree with us to the best of your powers to maintain and support the fundamental Laws of the Kingdom and the fundamental Liberties of the Subject For the particulars which may hereafter fall into Debate they have given me in charge to let you know That what hath been presented by you unto their Lordships they have laid nothing of it by they are not out of love with any thing that you have tendred unto them They have Voted nothing neither are they in love with any thing proceeding from themselves For that which we shall say and propose is out of an intendment to invite you to a mutual and free Conference that you with a confidence may come to us and we with confidence may speak with you so that we may come to a conclusion of those things which we both unanimously desire We have resolved of nothing designed or determined of nothing but desire to take you with us praying help from you as you have done from us My Lords have thought of some Proposions which they have ordered to be read here and then left with you in Writing That if it seem good to you we may uniformly concur for the substance and if you differ that you would be pleased to put out adde alter or diminish as you shall think fit that so we may come the better to the end that we do both so desirously embrace Then the Propositions following were read by the Clerk of the upper House THat his Majesty would be pleased graciously to Declare That the good old Law called Magna Charta and the six Statutes conceived to be Declarations and Explanations of that Law do still stand in force to all intents and purposes 2. That his Majesty would be pleased graciously to Declare That according to Magna Charta and the Statutes afore named as also according to the most ancient Customs and Laws of this Land every free Subject of this Realm hath a fundamental Propriety in his Goods and a fundamental Liberty of his Person 3. That his Majesty would be graciously pleased to Declare That it is his Royal pleasure to ratifie and confirm unto all and every his Loyal and faithful Subjects all their ancient several just Liberties Priviledges and Rights in as ample and beneficial maner to all intents and purposes as their Ancestors did enjoy the same under the best of his most noble Progenitors 4. That his Majesty would be further pleased graciously to Declare for the good content of his loyal Subjects and for the securing of them from future fear That in all Cases within the Cognizances of the Common Law concerning the liberties of the Subject his Majesty would proceed according to the Common Law of this Land and according to the Laws established in the Kingdom and in no other maner or wise 5. As touching his Majesties Royal Prerogative intrinsical to his Soveraignty and betrusted him withal from God ad communem totius populi salutem non ad destructionem that his Majesty would resolve not to use or divert the same to the prejudice of any his loyal People in the propriety of their Goods or liberty of their Persons And in case for the security of his Majesties royal Person the common safety of his People or the peaceable Government of this Kingdom his Majesty shall finde just cause for reason of State to imprison or restrain any mans Person his Majesty would graciously Declare That within a convenient time he shall and will express the cause of the commitment or restraint either General or Special and upon a cause so expressed will leave him immediately to be tryed according to the common Justice of the Kingdom After the reading of the Propositions the Archbishop said THis is but a Model to be added unto altered or diminished as in your reasons and wisdoms ye shall think fit after ye
is Application of Law in private mens Causes when it comes to Meum tuum And thus the general Government of Cases with relation to the common State of the Kingdom is from the Council Board and there they are to vary from the Law of the Kingdom Suppose it be in time of Dearth Propriety of Goods may in that time be forced and be brought to the Market We saw the experience of it in Coals in London and the Council Board caused them to be brought forth and sold. In a time of Pestilence men may be restrained If a Schism be like to grow in a Church the State will enquire after the favorers of it if there be feaâ— of Invasion and it be encouraged by hope of a Party amongst us it is in the power of Government to restrain men to their houses In the Composure of these things there is great difference What differences have been between the Courts of Chancery and Kings Bench It is hard to put true difference between the Kings Prerogative and our Liberties His Majesty saw expence of time would be prejudicial it pleased God to move his Majesty by a Divine hand to shew us a way to clear all our difficulties let us attend to all the parts of it there be Five Degrees and there is more assurance then we could have by any Law whatsoever His Majesty declares That Magna Charta and the other Statutes are in force This is not the first time that the Liberty of the Subject was infringed or was in Debate and confirmed all times thought it safe that when they came to a Negative of Power it was hard to keep Government and Liberty together but his Majesty stopped not there but according to the sense of these Laws That he will govern his Subjects in their just Liberties he assures us our Liberties are just they are not of Grace but of Right nay he assures us he will govern us according to the Laws of the Realm and that we shall finde as much security in his Majesties Promise as in any Law we can make and whatsoever Law we shall make it must come to his Majesties allowance and if his Majesty finde cause in his Government he may not put life to it We daily see all Laws are broken and all Laws will be broke for the Publique good and the King may pardon all Offenders his Majesty did see that the best way to settle all at unity is to express his own heart The Kings heart is the best guarder of his own promise his promise is bound with his heart What Prince can express more care and wisdom Lastly he saith That hereafter ye shall never have the like cause to complain May we not think the breach is made up is not his Majesty ingaged in his Royal word The conclusion is full of weight and he prayes God that as God hath blessed this Kingdom and put it into his heart to come amongst us so to make this day successful The wrath of a King is like the roaring of a Lyon and all Laws with his wrath are to no effect but the Kings favour is like to the dew of the grass there all will prosper and God made the Instruments to unite all hearts His Majesty having thus discharged himself he prayes us to proceed to the business that so much concerns him As his Majesty hath now shewed himself the best of Kings let us acknowledge his Majesties goodness and return to that Union which we all desire But this motion was not received with general acceptation and Sir Benjamin Rudyard replyed to it in these words WE are now upon a great business and the maner of handling it may be as great as the business it self Liberty is a precious thing for every man may set his own price upon it and he that doth not value it deserves to be valued accordingly for mine own part I am clear without scruple that what we have resolved is according to the Law and if any Judge in England were of a contrary opinion I am sure we should have heard of him ere now out of all question the very scope and drift of Magna Charta was to reduce the Regal to a Legal Power in matter of Imprisonment or else it had not been worthy so much contending for It is true That the King ought to have a trust reposed in him God forbid but he should and I hope it is impossible to take it from him for it lies not in the wit of man to devise such a Law as shall comprehend all particulars all accidents but that extraordinary Causes may happen which when they come if they be disposed of for the common good there will be no Law against them yet must the Law be general for otherwise Admissions and Exceptions will fret and eat out the Law to nothing God himself hath constituted a general Law of Nature to govern the ordinary course of things he hath made no Law for Miracles yet there is this observation of them that they are rather praeter naturam then contra naturam and always propter bones fines So the Kings Prerogatives are rather besides the Law then against it and when they are directly to their ends for the publique good they are not onely concurring Laws but even Laws in singularity and excellency But to come nearer let us consider where we are now what steps we have gone and gained The Kings learned Councel have acknowledged all the Laws to be still in force the Judges have not allowed any Judgement against these Laws the Lords also have confessed that the Laws are in full strength they have further retained our resolutions intire and without prejudice All this hitherto is for our advantage but above all his Majesty hath this day himself being publiquely present declared by the mouth of the Lord Keeper before both the Houses That Magna Charta and the other six Statutes are still in force That he will maintain his Subjects in the Liberties of their Persons and Proprieties of their Goods That he will govern them according to the Laws of the Kingdom this is a solemn and binding satisfaction expressing his gracious readiness to comply with his people in their reasonable and just desires The King is a good Man and it is no diminution to a King to be called so for whosoever is a good Man shall be greater then a King that is not so The King certainly is very tender of his present Honor and of his Fame hereafter He will think it hard to have a worse mark set upon him then upon any of his Ancestors by extraordinary restraints His Majesty hath already intimated unto us by a Message That he doth willingly give way to have the abuse of Power reformed by which I
Liberties of the Subject and of the Crown and that the word Leave was debated amongst them and thereby they meant to give no new but what was before for the words Soveraign Power as he is a King he is a Soveraign and must have Power and he said the words were easier then the Prerogative As for the word that which is a relative and referred to that Power that is for the safety of the People and this said he can never grieve any man being thus published it is not Soveraign Power in general but now in confutation of our Reasons he saith Magna Charta was not with a Saving but said he You pursue not the words in Magna Charta and therefore it needs an addition As for the 28 of E. 3. he said there was a Saving and an ill exposition cannot be made of this and both Houses have agreed it in substance already the Commons did it in a Speech delivered by our Speaker and that we said we have not a thought to incroach on the Kings Soveraignty and why may ye not add it in your Petition Upon this Report Mr. Mason readily spake his opinion in maner following IN our Petition of Right to the Kings Majesty we mentioned the Laws and Statutes by which it appeared That no Tax Loan or the like ought to be Levied by the King but by common assent in Parliament That no Freeman ought to be imprisoned but by the Law of the Land That no Freeman ought to be compelled to suffer soldiers in his house In the Petition we have expressed the breach of these Laws and desire we may not suffer the like all which we pray as our Rights and Liberties The Lords have proposed an addition to this Petition in these words We humbly present this Petition to your Majesty not onely with a care of our own Liberties but with a due regard to leave intire that Soveraign Power wherewith your Majesty is intrusted for the Protection Safety and Happiness of your People And whether we shall consent unto this addition is the subject of this days discourse and because my Lord Keeper at the conference declared their Lordships had taken the words of the Petition apart I shall do so too The word Leave in a Petition is of the same nature as Saving in a Grant or Act of Parliament when a man grants but part of a thing he saves the rest when he petitions to be restored but to part he leaveth the rest Then in the end of our Petition the word Leave will imply that something is to be left of that or at least with a reference to what we desire The word Intire is very considerable a Conqueror is bound by no Law but hath power dare Leges his Will is a Law and although William the Conqueror at first to make his way to the Crown of England the more easie and the possession of it more sure claimed it by Title but afterward when there were no powerful pretenders to the Crown the title of Conquest to introduce that absolute Power of a Conqueror was claimed and that Statute of Magna Charta and other Statutes mentioned in our Petition do principally limit that Power I hope it is as lawful for me to cite a Jesuit as it is for Doctor Manwaring to falsifie him Suares in his first Book de Legibus Cap. 17. delivered his opinion in these words Amplitudo restrictio potestatis Regum circa ea quae per se mala vel injusta non sunt pendet ex arbitrio hominum ex ambigua conventione vel pacto inter reges regnum And he further expresseth his opinion that the King of Spain was so absolute a Monarch that he might impose Tribute without consent of his people until about Two hundred years since when it was concluded between him and his people that without consent of his people by Proxies he should not impose any Tribute And Suares opinion is That by that agreement the Kings of Spain are bound to impose no Tribute without consent And this Agreement that Author calls a restraining of that Soveraign Power the Statutes then mentioned in our Petition restraining that absolute Power of Conqueror if we recite those Statutes and say we leave the Soveraign Power intire we do take away that restraint which is the vertue and strength of those Statutes and set at liberty the claim of the Soveraign Power of a Conqueror which is to be limited and restrained by no Laws This may be the danger of the word Intire The next word delivered by the Lords as observeable is the particle That because it was said That all Soveraign Power is not mentioned to be left but onely that with which the King is trusted for our Protection Safety and Happiness But I conceive this to be an exception of all Soveraign Power for all Soveraign Power in a King is for the Protection Safety and Happiness of his People If all Soveraign Power be excepted you may easily judge the consequence all Loans and Taxes being imposed by colour of that Soveraign Power The next word is Trusted which is very ambiguous whether it be meant trusted by God onely as a Conqueror or by the people also as King which are to govern also according to Laws ex pacto In this point I will not presume to adventure further onely I like it not by reason of the doubtful Exposition it admits I have likewise considered the Proposition it self and therein I have fallen upon the Dilemma that this addition shall be construed either to refer unto the Petition or not if it do refer unto the Petition it is meerly useless and unnecessary and unbefitting the judgement of this grave and great Assembly to add to a Petition of this weight If it hath reference unto it then it destroys not onely the virtue and strength of our Petition of Right but our Rights themselves for the addition being referred to each part of the Petition will necessarily receive this construction That none ought to be compelled to make any Gift Loan or such like charge without common consent or Act of Parliament unless it be by the Soveraign Power with which the King is trusted for the Protection Safety and Happiness of his People That none ought to be compelled to sojourn or billet Soldiers unless by the same Soveraign Power and so of the rest of the Rights contained in the Petition And then the most favorable construction will be that the King hath an ordinary Prerogative and by that he cannot impose Taxes or Imprison that is he cannot impose Taxes at his will to imploy them as he pleaseth but that he hath an extraordinary and transcendent Soveraign Power for the protection and happiness of his people and for such purpose he may impose Taxes or billet Soldiers as he pleaseth and we may assure our selves that hereafter all Loans Taxes and Billeting of Soldiers will be said to be for the Protection Safety and Happiness
Exposition I apprehend must be made of the proposed words being added to our Petition And therefore I conclude that in my opinion we may not consent to this Addition which I submit to better Judgements The Commons afterwards appointed Mr. Glanvile and Sir Henry Martin to manage another Conference to be had with the Lords concerning the said matter and to clear the Sense of the Commons in that point the one argued the Legal the other the Rational part and though the matter delivered by the length of it may seem tedious to the Reader and some matters spoken of before repeated again yet if the Reader observe the Language and Stile as well as the subject Matter perhaps it will be no penance unto him Mr. Glanviles Speech in a full Committee of both Houses of Parliament 23. May 1628. in the Painted Chamber at Westminster MY Lords I have in charge from the Commons House of Parliament whereof I am a Member to express this day before your Lordships some part of their clear sense touching one point that hath occurred in the great Debate which hath so long depended in both Houses I shall not need many words to induce or state the question which I am to handle in this free Conference The subject matter of our meeting is well known to your Lordships I will therefore onely look so far back upon it and so far recollect summarily the proceedings it hath had as may be requisite to present clearly to your Lordships considerations the nature and consequence of that particular wherein I must insist Your Lords may be pleased to remember how that the Commons in this Parliament have framed a Petition to be presented to his Majesty a Petition of Right rightly composed relating nothing but truth desiring nothing but Justice a Petition justly occasioned a Petition necessary and fit for these times a Petition founded upon solid and substantial grounds the Laws and Statutes of this Realm sure Rocks to build upon a Petition bounded within due limits and directed upon right ends to vindicate some lawful and just Liberties of the free Subjects of this Kingdom from the prejudice of violations past and to secure them from future innovations And because my following discourse must reflect chiefly if not wholly upon the matter of this Petition I shall here crave leave shortly to open to your Lordships the distinct parts whereof it doth consist and those are four The first concerns Levies of Moneys by way of Loans or otherwise for his Majesties supply Declaring that no man ought and praying that no man hereafter be compelled to make or yield any Gift Loan Benevolence Tax or such like Charge without common consent by Act of Parliament 3. The second is concerning that Liberty of Person which rightfully belongs to the Free Subjects of this Realm expressing it to be against the 〈◊〉 of the Laws and Statutes of the Land that any Freeman should be imprisoned without cause shewed and then reciting how this Liberty amongst others hath lately been infringed it concludeth with a just and necessary desire for the better clearing and allowance of this priviledge for the future 3. The third declareth the unlawfulness of billeting or placing Soldiers or Mariners to sojourn in Free Subjects houses against their wills and prayeth remedy against that grievance 4. The fourth and last aimeth at redress touching Commissions to proceed to the Tryal and Condemnation of Offenders and causing them to be executed and put to death by the Law Marshal in times and places when and where if by the Laws and Statutes of the Land they had deserved death by the same Laws and Statutes also they might and by none other ought to be adjudged and executed This Petition the careful House of Commons not willing to omit any thing pertaining to their duties or that might advance their moderate and just ends did heretofore offer up unto your Lordships consideration accompanied with an humble desire That in your Nobleness and Justice you would be pleased to joyn with them in presenting it to his Majesty that so coming from the whole Body of the Realm the Peers and People to him that is the Head of both our Gracious Soveraign who must crown the Work or else all our labour is in vain it might by your Lordships concurrence and assistance finde the more easie passage and obtain the better answer Your Lordships as your maner is in cases of so great importance were pleased to debate and weigh it well and thereupon you propounded to us some few amendments as you termed them by way of alteration alledging that they were onely in matters of form and not of substance and that they were intended to none other end but to sweeten the Petition and make it the more passable with his Majesty In this the House of Commons cannot but observe that fair and good respect which your Lordships have used in your proceedings with them by your concluding or Voting nothing in your House until you had imparted it unto them whereby our meetings about this business have been justly stiled Free Conferences either party repairing hither disingaged to hear and weigh the others Reasons and both Houses coming with a full intention upon due consideration of all that can be said on either side to joyn at last in resolving and acting that which shall be found most just and necessary for the honor and safety of his Majesty and the whole Kingdom And touching those propounded alterations which were not many your Lordships cannot but remember that the House of Commons have yielded to an accommodation or change of their Petition in two particulars whereby they hope your Lordships have observed as well as ye may they have not been affected unto words or phrases nor over-much abounding in their own sense but rather willing to comply with your Lordships in all indifferent things For the rest of your proposed amendments if we do not misconceive your Lordships as we are confident we do not your Lordships of your selves have been pleased to relinquish them with a new overture for one onely Clause to be added in the end or foot of the Petition whereby the work of this day is reduced to one simple head whether that Clause shall be received or not This yielding of the Commons in part unto your Lordships of other points by you somewhat insisted upon giveth us great assurance that our ends are one and putteth us in hope that in conclusion we shall concur and proceed unanimously to seek the same ends by the same means The clause propounded by your Lordships to be added to the Petition is this WE humbly present this Petition to your Majesty not onely with a care for preservation of our Liberties but with a due regard to leave intire that Soveraign Power wherewith your Majesty is trusted for the Protection Safety and Happiness of your People A clause specious in shew and smooth in words but in effect and consequence most
dangerous as I hope to make most evident however coming from your Lordships the House of Commons took it into their considerations as became them and apprehending upon the first Debate that it threatned ruine to the whole Petition they did heretofore deliver some Reasons to your Lordships for which they then desired to be spared from admitting it To these Reasons your Lordships offered some Answers at the last meeting which having been faithfully reported to our House and there debated as was requisite for a business of such weight and importance I must say truly to your Lordships yet with due reverence to your opinions the Commons are not satisfied with your Arguments and therefore they have commanded me to recollect your Lordships Reasons for this Clause and in a fair Reply to let you see the causes why they differ from you in opinion But before I come to handle the particulars wherein we dissent from your Lordships I will in the first place take notice yet a little further of that general wherein we all concur which is That we desire not neither do your Lordships to augment or dilate the Liberties and Priviledges of the Subjects beyond the just and due Bounds nor to incroach upon the Limits of his Majesties Prerogative Royal and as in this your Lordships at the last meeting expressed clearly your own senses so were your Lordships not mistaken in collecting the concurrent sense and meaning of the House of Commons they often have protested they do and ever must protest that these have been and shall be the Bounds of their desires to demand and seek nothing but that which may be fit for dutiful and loyal Subjects to ask and for a gracious and just King to grant for as they claim by Laws some Liberties for themselves so do they acknowledge a Prerogative a high and just Prerogative belonging to the King which they intend not to diminish And now my Lords being assured not by strained inferences or obscure collections but by the express and clear Declarations of both Houses that our ends are the same it were a miserable unhappiness if we should fail in finding out the means to accomplish our desires My Lords the Heads of those particular Reasons which you insisted upon the last day where onely these 1. First you told us that the word Leave was of such nature that it could give no new thing to his Majesty 2. That no just exception could be taken to the words Soveraign Power for that as his Majesty is a King so he is a Soveraign and as he is a Soveraign so he hath Power 3. That the Soveraign Power mentioned in this Clause is not absolute or indefinite but limited and regulated by the particle That and the word Subsequent which restrains it to be applied onely for Protection Safety and Happiness of the People whereby ye inferred there could be no danger in the allowance of such power 4. That this Clause contained no more in substance but the like expressions of our meanings in this Petition which we had formerly signified unto his Majesty by the mouth of Mr. Speaker that we no way intended to incroach upon his Majesties Soveraign Power or Prerogative 5. That in our Petition we have used other words and of larger extent touching our Liberties then are contained in the Statutes whereon it is grounded In respect of which inlargement it was fit to have some express or implied Saving or Narrative Declaratory for the Kings Soveraign Power of which Narrative ye alledge this Clause to be 6. Lastly whereas the Commons as a main Argument against the Clause had much insisted upon this that is was unprecedented and unparliamentary in a Petition from the Subjects to insert a Saving for the Crown your Lordships brought for instance to the contrary the two Statutes of the 25 E. 1. commonly called Confirmatio Chartarum and 28 E. 1. known by this name of Articuli super Chartas in both which Statutes there are Saving for the Kings Having thus reduced to your Lordships memories the effects of your own reasons I will now with your Lordships favor come to the points of our Reply wherein I most humbly beseech your Lordships to weigh the Reasons which I shall present not as the sense of my self the weakest Member of our House but as the genuine and true sense of the whole House of Commons conceived in a business there debated with the greatest gravity and solemnity with the greatest concurrence of opinions and unanimity that ever was in any business maturely agitated in that House I shall not peradventure follow the Method of your Lordships recollected Reasons in my answering to them nor labor to urge many reasons It is the desire of the Commons that the weight of their Arguments should recompense if need be the smalness of their number And in conclusion when you have heard me through I hope your Lordships shall be enabled to collect clearly out of the frame of what I shall deliver that in some part or other of my discourse there is a full and satisfactory answer given to every particular reason or objection of your Lordships The Reasons that are now appointed to be presented to your Lordships are of two kinds Legal and Rational of which these of the former sort are allotted to my charge and the first of them is thus The Clause now under question if it be added to the Petition then either it must refer or relate unto it or else not if it have no such reference is it not clear that it is needless and superfluous and if it have such reference is it not clear that then it must needs have an operation upon the whole Petition and upon all the parts of it We cannot think that your Lordships would offer us a vain thing and therefore taking it for granted that if it be added it would refer to the Petition let me beseech your Lordships to observe with me and with the House of Commons what alteration and qualification of the same it will introduce The Petition of it self simply and without this Clause declareth absolutely the Rights and Priviledges of the Subject in divers points and amongst the rest touching the Levies of monies by way of Loans or otherwise for his Majesties supply That such Loans and other charges of the like nature by the Laws and Statutes of this Land ought not to be made or laid without common consent by Act of Parliament But admit this Clause to be annexed with reference to the Petition and it must necessarily conclude and have this Exposition That Loans and the like Charges true it is ordinarily are against the Laws and Statutes of the Realm unless they be warranted by Soveraign Power and that they cannot be commanded or raised without assent of Parliament unless it be by Soveraign Power what were this but to admit a Soveraign Power in the King above the Laws and Statutes of the Kingdome Another part of this Petition is
That the free Subjects of this Realm ought not to be imprisoned without cause shewed But by this Clause a Soveraign Power will be admitted and left intire to his Majesty sufficient to control the force of Law and to bring in this new and dangerous Interpretation That the free Subjects of this Realm ought not by Law to be imprisoned without cause shewed unless it be by Soveraign Power In a word this Clause if it should be admitted would take away the effect of every part of the Petition and become destructive to the whole for thence will be the Exposition touching the Billeting of Soldiers and Mariners in free mens houses against their wills and thence will be the Exposition touching the Times and Places for execution of the Law Marshal contrary to the Laws and Statutes of the Realm The scope of this Petition as I have before observed is not to amend our Case but to restore us to the same state we were in before whereas if this Clause be received in stead of mending the condition of the poor Subjects whose Liberties of late have been miserably violated by some Ministers we shall leave them worse then we found them in stead of curing their wounds we shall make them deeper We have set bounds to our desires in this great Business whereof one is not to diminish the Prerogative of the King by mounting too high and if we bound our selves on the other side with this limit not to abridge the lawful Priviledges of the Subject by descending beneath that which is meet no man we hope can blame us My Lords as there is mention made in the additional Clause of Soveraign Power so is there likewise of a trust reposed in his Majesty touching the use of Soveraign Power The word Trust is of great Latitude and large extent and therefore ought to be well and warily applied and restrained especially in the Case of a King There is a trust inseparably reposed in the Persons of the Kings of England but that trust is regulated by Law for example when Statutes are made to prohibite things not mala in se but onely mala quia prohibita under certain forfeitures and penalties to accrue to the King and to the Informers that shall sue for the breach of them The Commons must and ever will acknowledge a Regal and Soveraign Prerogative in the King touching such Statutes that it is in his Majesties absolute and undoubted Power to grant Dispensations to particular persons with the Clauses of Non obstante to do as they might have done before those Statutes wherein his Majesty conferring grace and favour upon some doth not do wrong to others but there is a difference between those Statutes and the Laws and Statutes whereon the Petition is grounded by those Statutes the Subject hath no interest in the penalties which are all the fruit such Statutes can produce until by Suit or Information commenced he become intituled to the particular forfeitures whereas the Laws and Statutes mentioned in our Petition are of another nature there shall your Lordships finde us to rely upon the good old Statute called Magna Charta which declareth and confirmeth the ancicient Common Laws of the Liberties of England There shall your Lordships also finde us also to insist upon divers other most material Statutes made in the time of King E. 4. and E. 3. and other famous Kings for explanation and ratification of the Lawful Rights and Priviledges belonging to the Subjects of this Realm Laws not inflicting Penalties upon Offenders in malis prohibitis but Laws declarative or positive conferring or confirming ipso facto an inherent Right and Interest of Liberty and Freedom in the Subjects of this Realm as their Birthrights and Inheritance descendable to their Heirs and Posterity Statutes incorporate into the Body of the Common Law over which with reverence be it spoken there is no Trust reposed in the Kings Soveraign Power or Prerogative Royal to enable him to dispense with them or to take from his Subjects that Birthright or Inheritance which they have in their Liberties by vertue of the Common Law and of these Statutes But if this Clause be added to our Petition we shall then make a dangerous overture to confound this good destination touching what Statutes the King is trusted to controll by dispensations and what not and shall give an intimation to posterity as if it were the opinion both of the Lords and Commons assembled in this Parliament that there is a Trust reposed in the King to lay aside by his Soveraign Power in some amergent cases as well of the Common Law and such Statutes as declare or ratifie the Subjects Liberty or confer Interest upon their persons as those other Penal Statutes of such nature as I have mentioned before which as we can by no means admit so we believe assuredly that it is far from the desire of our most Gracious Soveraign to affect so vast a Trust which being transmitted to a Successor of a different temper might enable him to alter the whole frame and fabrick of the Commonwealth and to dissolve that Government whereby his Kingdom hath flourished for so many years and ages under his Majesties most Royal Ancestors and predecessors Our next Reason is That we hold it contrary to all course of Parliament and absolutely repugnant to the very nature of a Petition of Right consisting of particulars as ours doth to clog it with a general Saving or Declaration to the weakning of the Right demanded and we are bold to renew with some confidence our Allegation that there can be no Precedent shewed of any such Clause in any such Petitions in times past I shall insist the longer upon this particular and labour the more carefully to clear it because your Lordships were pleased the last day to urge against us the Statutes of 25 and 28 of E. 1. as arguments to prove the contrary and seemed not to be satisfied with that which in this point we had affirmed True it is that in those Statutes there are such Savings as your Lordships have observed but I shall offer you a clear Answer to them and to all other Savings of like nature that can be found in any Statutes whatsoever First in the general and then I shall apply particular Answers to the particulars of those two Statutes whereby it will be most evident that those examples can no ways sute with the matter now in hand To this end it will be necessary that we consider duely what that question is which indeed concerneth a Petition and not an Act of Parliament This being well observed by shewing unto your Lordships the difference between a Petition for the Law and the Law ordained upon such a Petition and opening truly and perspicuously the course that was holden in framing of Statutes before 2 H. 5. different from that which ever since then hath been used and is still in use amongst us and by noting the times wherein these Statutes
were made which was about one hundred years before 2 H. 5. besides the differences between these Savings and this Clause I doubt not but I shall give ample satisfaction to your Lordships that the Commons as well in this as in all their other Reasons have been most careful to rely upon nothing but that which is most true and pertinent Before the second year of King H. 5. the course was thus When the Commons were Suiters for a Law either the Speaker of their House by word of mouth from them the Lords House joyning with them or by some Bill in writing which was usually called their Petition moved the King to Ordain Laws for the redress of such mischiefs or inconveniences as were found grievous unto the people To these Petitions the King made answer as he pleased sometimes to part sometimes to the whole sometimes by denial sometimes by assent sometimes absolutely and sometimes by qualification Upon these Motions and Petitions and the Kings Answers to them was the Law drawn up and Ingrossed in the Statute Roll to binde the Kingdom but this inconvenience was found in this course that oftentimes the Statutes thus framed were against the sense and meaning of the Commons at whose desires they were Ordained and therefore in the 2 H. 5. finding that it tended to the violation of their Liberty and Freedom whose right it was and ever had been that no Law should be made without their assent they then exhibited a Petition to the King declaring their right in this particular praying that from thenceforth no Law might be made or Ingrossed as Statutes by additions or diminutions to their Motions or Petitions that should change their sense or intent without their assent which was accordingly established by Act of Parliament ever since then the use hath been as the Right was before that the King taketh the whole or leaveth the whole of all Bills or Petitions exhibited for the obtaining of Laws From this course and from the time when first it became constant and setled we conclude strongly that it is no good Argument because ye finde Savings in Acts of Parliament before the second of H. 5. that before those Savings were in the Petitions that begat those Statutes for if the Petitions for the two Loans so much insisted upon which Petitions for any think we know are not now extant were never so absolute yet might the King according to the usage of those times insert the Savings in his Answers which passing from thence into the Statute Roll do onely give some little colour but are not proof at all that the Petitions also were with Savings Thus much for the general to come now to the particular Statute of 25 of Edw. 1. which was a confirmation of Magna Charta with some provision for the better execution of it as common Law which words are worth the noting It is true that Statute hath also a Clause to this effect That the King or his Heirs from thenceforth should take no Aids Taxes or Prises of his Subjects but by common assent of all the Realm Saving the ancient Aids and Prises due and accustomed This Saving if it were granted which is not nor cannot be proved that it was as well in the Petition as in the Act yet can it no way imply that it is either fit or safe that the Clause now in question should be added to our Petition for the nature and office of a Saving or Exception is to exempt particulars out of a general and to ratifie the Rule in things not exempted but in no sort to weaken or destroy the general Rule it self The body of that Law was against all Aids and Taxes and Prises in general and was a confirmation of the common Law formerly declared by Magna Charta the Saving was onely of Aids and Prises in particular so well described and restrained by the words Ancient and Accustomed that there could be no doubt what could be the clear meaning and extent of that exception for the Kings Right to those ancient Aids intended by that Stature to be saved to him was well known in those days and is not yet forgotten These Aids were three from the Kings Tenants by Knights service due by the common Law or general Custom of the Realm Aid to ransom the Kings Royal Person if unhappily he should be taken prisoner in the Wars Aid to make the Kings Eldest Son a Knight and Aid to marry the Kings Eldest Daughter once but no more and that those were the onely Aids intended to be saved to the Crown by that Statute appeareth in some clearness by the Charter of King Iohn dated at Runningmede the 15 of Iune in the 5th year of his Reign wherein they are enumerated with an exclusion of all other Aids whatsoever Of this Charter I have here one of the Originals whereon I beseech your Lordships to cast your eyes and give me leave to read the very words which concern this point These words my Lords are thus Nullum scutigium vel auxilium ponatur in Regno nostro nisi per commune Consilium Regni nostri nisi ad Corpus nostrum redimendum primogenitum filium nostrum militem faciendum ad filiam nostram primogenitam semel maritandam ad hoc non siat nisi rationabile auxilium Touching Prises the other thing excepted by this Statute it is also of a particular Right to the Crown so well known that it needeth no description the King being in possession of it by every days usage It is to take one Tun of Wine before the Mast and another behinde the Mast of every Ship bringing in above twenty Tuns of Wine and here discharge them by way of Merchandise But our Petition consisteth altogether of particulars to which if any general Saving or words amounting to one should be annexed it cannot work to confirm things not excepted which are none but to confound things included which are all the parts of the Petition and it must needs beget this dangerous Exposition that the Rights and Liberties of the Subject declared and demanded by this Petition are not theirs absolutely but sub modo not to continue always but onely to take place when the King is pleased not to exercise that Soveraign Power wherewith this Clause admitted he is trusted for the protection safety and happiness of his People And thus that Birthright and Inheritance which we have in our Liberties shall by our own assents be turned into a meer Tenancy at will and sufferance Touching the Statute of 28 Edw. 1. Articuli super Chartas the scope of that Statute among other things being to provide for the better observing and maintaining of Magna Charta hath in it nevertheless two Savings for the King the one particular as I take it to preserve the ancient Prices due and accustomed as of Wines and of other goods the other general Seigniory of the Crown in all things To these two Savings besides the former Answers which
Bill shew and declare against Roger Manwaring Clerk Dr. in Divinity That whereas by the Laws and Statutes of this Realm the free Subiects of England do undoubtedly inherit this Right and Liberty not to be compelled to contribute any Tax Tollage Aid or to make any Loans not set or imposed by common consent by Act of Parliament And divers of his Majesties loving Subjects relying upon the said Laws and Customes did in all humility refuse to lend such sums of Moneys without Authority of Parliament as were lately required of them Nevertheless he the said Roger Manwaring in contempt and contrarâ— to the Laws of this Realm hath lately preached in his Majesties presence two several Sermons That is to say the fourth day of July last one of the said Sermons and upon the 29. day of the same Moneth the other of the said Sermons both which Sermons he hath since published in print in a Book intituled Religion and Allegiance and with a wicked and malitious intention to seduce and misguide the Conscience of the Kings most excellent Majesty touching the observation of the Laws and Customes of this Kingdom and of the Rights and Liberties of the Subjects to incense his Royal displeasure against his good Subjects so refusing to scandalize subvert and impeach the good Laws and Government of this Realm and the Authority of the High Court of Parliament to alienate his Royal heart from his People and to cause jealousies sedition and division in the Kingdom He the said Roger Manwaring doth in the said Sermons and Book perswade the Kings most excellent Majesty First that his Majesty is not bound to keep and observe the good Laws and Customes of this Realm concerning the Rights and Liberties of the Subjects aforementioned And that his Royal Will and Command in imposing Loans Taxes and other Aids upon his people without common consent in Parliament doth so far binde the Consciences of the Subjects of this Kingdom that they cannot refuse the same without peril of eternal damnation Secondly that those of his Majesties loving Subjects which refused the Loan aforementioned in such manner as is before recited did therein offend against the Law of God against his Majesties Supreme Authority and by so doing became guilty of Impiety Dissoialty Rebellion and Disobedience and liable to many other Taxes and Censures which he in the several parts of his Book doth most falsly and malitiously lay upon them Thirdly that authority of Parliaments is not necessary for the raising of Aids and Subsidies that the slow proceedings of such Assemblies are not fit for the supply of the urgent necessities of the State but rather apt to produce sundry impediments to the just designs of Princes and to give them occasion of displeasure and discontent All which the Commons are ready to prove not only by the general scope of the same Sermons and Book but likewise by several Clauses Assertions and Sentences therein contained and that he the said Roger Manwaring by preaching and publishing the Sermons and Book aforementioned did most unlawfully abuse his holy function instituted by God in his Church for the guiding of the Consciences of all his Servants and chiefly of Soveraign Princes and Magistrates and for the maintenance of the peace and concord betwixt all men especially betwixt the King and his People and hath thereby most grievously offended against the Crown and Dignity of his Majesty and against the Prosperity and good Government of this State and Common-wealth And the said Commons by protestation saving to themselves the Liberty of exhibiting at any time hereafter any other occasion or impeachment against the said Roger Manwaring and also of replying to the answers which he the said Roger shall make unto any of the matters contained in this present Bill of Complaint and of offering further proof of the premises or of any of them as the Cause according to the Course of Parliament shall require do pray that the said Roger Manwaring may be put to answer to all and every the premises and that such proceeding examination trial judgement and exemplary punishment may be thereupon had and executed as is agreeable to Law and Iustice. This Declaration ingrossed in Parliament being read Mr. Pym addressed himself to the Lords in this manner THat he should speak to this Cause with more confidence because he saw nothing out of himself that might discourage him If he considered the matter the Offences were of an high nature of easie proof if he considered their Lordships who were the Judges of their own interest their own honour the example of their Ancestors the care of their Posterity would all be Advocates with him in this Cause on the behalf of the Commonwealth if he considered the King our Soveraign the pretence of whose Service and Prerogative might perchance be sought unto as a Defence and Shelter for this Delinquent he could not but remember that part of his Majesties Answer to the Petition of Right of both Houses that he held himself bound in conscience to preserve those Liberties which this man would perswade him to impeach He said further that he could not but remember his Majesties love to Piety and Justice manifested upon all occasions and he knew love to be the root and spring of all other passions and affections A man therefore hates because he sees somewhat in that which he hates contrary to that which he loves a man therefore is angry because he sees somewhat in that wherewith 〈◊〉 â—ngry that gives impediment and interruption to the accomplishment of that which he loves If this be so by the same act of his Apprehension by which he believes his Majesties love to Piety and Justice he must needs believe his hate and detestation of this man who went about to withdraw him from the exercise of both Then he proceeded to that which he said was the Task enjoyned him to make good every Clause of that which had been read unto them which that he might the more clearly perform he prepounded to observe that order of parts unto which the said Declaration was naturally dissolved 1. Of the Preamble 2. The Body of the Charge 3. The Conclusion or Prayer of the Commons The preamble consisted altogether of recital first of the Inducements upon which the Commons undertook this complaint The second of those Laws and Liberties against which the offence was committed The third of the violation of those Laws which have relation to that offence From the connexion of all those recitals he said there did result three Positions which he was to maintain as the ground-work and foundation of the whole Cause The first that the form of Government in any State could not be altered without apparent danger of ruine to that State The second the Law of England whereby the Subjects was exempted from Taxes and Loans not granted by common consent of Parliament was not introduced by any Statute or by any Charter or Sanction of Princes but was
People to pray for him hoping that God would enable him by some satisfactory benefit to make amends and comfort his Subjects for those pressures To these temporal Precedents of antient times which were alledged he added an Ecclesiastical Precedent out of a book called Pupilla Oculi being published for the instruction of Confessors in the Title De participantibus cum excommunicatis fol. 59. All the Articles of Magna Charta are inserted with this direction Hos articulos ignorare non debent quibus incumbit confessiones audire infra provinciam Cantuariensem He likewise remembred the Proclamation 8. Iac. for the calling in and burning of Doctor Cowel's book for which these reasons are given For mistaking the true state of the Parliament of the Kingdom and fundamental constitution and priviledges thereof For speaking irreverently of the Common Law it being a thing utterly unlawful for any Subject to speak or write against that Law under which he liveth and which we are sworn and resolve to maintain From these Precedents he collected that if former Parliaments were so careful of false rumors and news they would have been much more tender of such doctrines as these which might produce true occasions of discord betwixt the King and his People If those who reported the King would lay Impositions and break his Laws were thought such hainous offenders how much more should this man be condemned who perswaded the King he is not bound to keep those Laws If that great King was so far from challenging any right in this kinde that he professed his own sorrow and repentance for grieving his Subjects with unlawful charges If Confessors were enjoyned to frame the Consciences of the People to the observance of these Laws certainly such Doctrine and such a Preacher as this would have been held most strange and abominable in all these times The third general part was the conclusion or prayer of the Commons which consisted of three Clauses First they reserved to themselves liberty of any other accusation and for this he said there was great reason that as the Doctor multiplied his offences so they may renew their accusations Secondly they saved to themselves liberty of replying to his Answer for they had great cause to think that he who shifted so much in offending would shift much more in answering Thirdly they desire he might be brought to examination and judgement this they thought would be very important for the comfort of the present age for security of the future against such wicked and malitious practises And so he concluded that seeing the cause had strength enough to maintain it self his humble suit to their Lordships was That they would not observe his infirmities and defects to the diminution or prejudice of that strength NOt long after the Commons by their Speaker demanded Judgement of the Lords against the Doctor who not accounting his submission with tears and grief a satisfaction for the great offence wherewith he stood charged gave this Sentence 1. That Dr. Manwaring Doctor in Divinity shall be imprisoned during the pleasure of the House 2. That he be fined one thousand pounds to the King 3. That he shall make such submission and acknowledgement of his offences as shall be set down by a Committee in writing both at the Bar and in the House of Commons 4. That he shall be suspended for the time of three years from the exercise of the Ministery and in the mean time a sufficient preaching Minister shall be provided out of his livings to serve the Cure This suspension and provision to be done by the Ecclesiastical jurisdiction 5. That he shall be hereafter disabled to have any Ecclesiastical Dignity or secular Office 6. That he shall be for ever disabled to preach at the Court hereafter 7. That his said Book is worthy to be burnt and that for the better effecting of this his Majesty may be moved to grant a Proclamation to call in the said Books that they may be all burnt accordingly in London and both the Universities and for the Inhibiting the printing thereof upon a great penalty Doctor Manwarings submission was in these words MAy it please this Honorable House I do here in all sorrow of Heart and true Repentance acknowledge the many Errors and Indiscretions which I have committed in preaching and publishing those two Sermons of mine which I called Religion and Allegiance and my great fault in falling upon this Theame again and handling the same rashly and unadvisedly in my own Parish Church of St. Giles in the Fields the fourth of May last past I do humbly acknowledge those three Sermons to have been full of many dangerous Passages Inferences and scandalous Aspersions in most part of the same And I do humbly acknowledge the Justice of this Honorable House in that Judgement and Sentence passed upon me for my great offence And I do from the bottom of my Heart crave pardon of God the King and this Honorable House and the Church and this Common-wealth in general and those worthy Persons adjudged to be reflected upon by me in particular for these great Errors and Offences Roger Manwaring Another Message was brought from his Majesty by the Speaker Tuesday 5 of June HIs Majesty wished them to remember the Message he last sent them by which he set a day for the end of this Session and he commanded the Speaker to let them know that he will certainly hold that day prefixed without alteration and because that cannot be if the House entertain more business of length he requires them that they enter not into or proceed with any new business which may spend greater time or which may lay any Scandal or Aspersion upon the State-government or Ministers thereof SIr Robert Phillips upon this occasion expressed himself thus I perceive that towards God and towards man there is little hope after our humble and careful endeavors seeing our Sins are many and so great I consider my own infirmities and if ever my Passions were wrought upon then now this Message stirs me up especially when I remember with what moderation we have proceeded I cannot but wonder to see the miserable straight we are now in What have we not done to have merited Former times have given wounds enough to the peoples Liberty we came hither full of wounds and we have cured what we could and what is the return of all but misery and desolation What did we aim at but to have served his Majesty and to have done that that would have made him Great and Glorious if this be a fault then we are all Criminous What shall we do since our humble purposes are thus prevented which were not to have laid any aspersion on the Government since it tended to no other end but to give his Majesty true information of his and our danger And to this we are enforced out of a necessity of duty to the King our Countrey and to Posterity but we
shew them the said cancelled Commission and Warrant The Commons resume again the Debate upon the Bill of Tunnage and Poundage Whereupon Mr. Selden said Whereas the Kings Councel objected that 1. Eliz. saith It was Granted time out of mind to the King I fear his Majesty is told so and some body doth ascertain him so But we may clear that for not only 1. Eliz. but also in the Statute of 1. Iac. the word time out of mind is That whereas H. 7. and other his Majesties Progenitors have had some Subsidy for the guarding of the Seas And that there was never a King but had some Subsidie in that sense it is indeed time out of mind Yet is it a matter of free gift for publique Bills the King saith Le Roy se veult for Petitions of Right Soit droit fait come est desire For the Bill of Subsidies it is thus the King heartily thanking the Subjects for their good wills In all the Bills of Tunnage and Poundage is the very same Answer save one which was 1. Eliz. and but for that only mistake of the Clerk it hath ever the same assent as the Bill of Subsidie Upon this Debate it was Ordered that a Committee be appointed to draw a Remonstrance to his Majesty of the peoples Rights and of the undue taking of Tunnage and Poundage and Impositions without Act of Parliament and to shew the Reasons why the House cannot in so short a time prepare that Bill The Remonstrance was as followeth MOst Gracious Sovereign Your Majesties most Loyal and Dutiful Subjects the Commons in this present Parliament assembled being in nothing more careful then of the Honor and Prosperity of your Majestie and the kingdom which they know do much depend upon that happie union and relation betwixt your Majestie and your people do with much sorrow apprehend that by reason of the incertaintie of their continuance together the unexpected interruptions which have been cast upon them and the shortness of time in which your Majestie hath determined to end this Session they cannot bring to maturitie and perfection divers businesses of weight which they have taken into their consideration and resolution as most important for the common good Amongst other things they have taken into especial care the preparing of a Bill for the Granting of your Majestie such a Subsidie of Tunnage and Poundage as might uphold your Profit and Revenue in as ample a manner as their just care and respect of Trade wherein not only the Prosperity but even the Life of the Kingdom doth consist would permit But being a work which will require much time and preparation by conference with your Majesties Officers with the Merchants not only of London but of other remote parts they find it not possible to be accomplished at this time Wherefore considering it will be much more prâ—judicial to the right of the Subject if your Majestie should continue to receive the same without Authority of Law after the determination of a Session then if there had been a Recess by Adjournment only In which case that intended Grant would have related to the first day of the Parliament And assuring themselves that Your Majestie is resolved to observe that Your Royal Answer which â—ou have lately made to the Petition of Right of both Houses of Parliament Yet doubting least Your Majestie may be misinformed concerning this particular case as if you might continue to take those Subsidies of Tunnage and Poundage and other Impositions upon Merchants without breaking that Answer they are forced by that dutie which they owe to Your Majestie and to those whom they represent to declare That there ought not any Imposition to be laid upon the Goods of Merchants Exported or Imported without common consent by Act of Parliament which is the right and inheritance of your Subjects founded not only upon the most Ancient and Original constitution of this Kingdom but often confirmed and declared in divers Statute Laws And for the better manifestation thereof may it please Your Majestie to understand that although Your Royal Predecessors the Kings of this Realm have often had such Subsidies and Impositions Granted unto them upon divers occasions especially for the guarding of the Seas and safeguard of Merchants Yet the Subjects have been ever careful to use such Cautions and Limitations in those Grants as might prevent any claim to be made that such Subsidies do proceed from duty and not from the free gift of the Subject And that they have heretofore used to limit a tune in such Grants and for the most part but short as for a year or two and if it were continued longer they have sometimes directed a certain space of Cessation or intermission that so the right of the subject might be more evident At other times it hath been Granted upon occasion of War for a certain number of years with Proviso that if the War were ended in the mean time then the Grant should cease And of Course it hath been sequestred into the hands of some Subjects to be imployed for the guarding of the Seas And it is acknowledged by the ordinary Answers of your Majesties Predecessors in their Assent to the Bills of Subsidies of Tunnage and Poundage that it is of the nature of other Subsidies proceeding from the good will of the Subject Uery few of your Predecessors had it for life untill the Reign of H. 7. who was so far from conceiving he had any right thereunto That although he granted Commissions for collecting certain duties and Customes due by Law yet he made no Commissions for receiving the Subsidie of Tunnage and Poundage untill the same was granted unto him in Parliament Since his time all the Kings and Queens of this Realm have had the like Grants for life by the free love and good will of the Subjects And whensoever the people have been grieved by laying any Impositions or other Charges upon their goods and Merchandises witâ—out authority of Law which hath been very sâ—ldom Yet upon complaint in Parliament they have been forthwith relieved saving in the time of your Royal Father who having through ill Councel raised the Rates and Charges upon Merchandises to that height at which they now are yet he was pleased so far forth to yield to the complaint of his people as to offer that if the value of those Impositions which he had set might be made good unto him He would binde himself and his Heirs by Act of Parliament never to lay any other Which offer the Commons at that time in regard of the great burden did not think fit to yield unto Nevertheless your Loyall Commons in this Parliament out of their especial zeale to your Service and especial regard of your pressing occasions have taken into their consideration so to frame a Grant of Subsidie of Tunnage and Poundage to your Majesty that both you might have been the better enabled for the defence of your Realm and your
discontinuance of assembling the three Estates in France which was in time about four years before the blazing Star by Lewis the eleventh King of France who by reason the third Estate representing the Commons did incroach as he declared too much upon the Clergie and Nobility the King dissolved that Parliament of the three Estates and never had a free Election of the third Estate afterwards but ordained another kind of meeting instead thereof which is called L' assembli des Notables An assembly of certain eminent persons of his own Nomination whereunto he added some Counsellour out of every Court of Parliament there being eight in all in France and being few in number and of his own Nomination would more readily comply with the Kings proposals and not dispute his will and pleasure as the general assembly of three Estates had wont to do when the King trenched upon the liberty and property of the Subject which alteration of the Government as to the third Estate hath ever since exposed the Commons to much vassalage and misery as at this day is apparent by the meanness of their livelyhood and wearing of wooden shoes That which gives us occasion to mention this last particular is a little Tract composed to the said end and purpose and which did this Trinity long Vacation walk abroad and went from hand to hand sometime at Court sometime in the Country and sometime at the Innes of Court which we here set down verbatim in the Appendix that the humour of the Author thereof may be the more clearly discerned and when we come to its proper time and place you shall see what success this Pamphlet had when it was questioned in the Star-Chamber Towards the latter end of his Vacation all the Justices of the Kings Bench being then in the Country received every one of them a Letter to be at Sergeants Inne upon Michaelmas day These Letters were from the Council-Table and the cause expressed in them was That his Majesty had present and urgent occasion to use their service The Judges came up accordingly on Tuesday being Michaelmas day The next morning about four a clock Letters were brought to the chief Justice from Mr. Trumbal Clerk of the Council then attending that he and Judge Whitlock one of the Judges of that Court should attend the King that morning so soon as conveniently they could which the Chief Justice and that Judge did at Hampton that morning where the King taking them apart from the Council fell upon the business of the Gentlemen in the Tower and was contented they should be bayled notwithstanding their obstinacy in that they would not give the King a Petition expressing That they were sorry he was offended with them he shewed his purpose to proceed against them by the common Law in the Kings Bench and to leave his proceeding in the Star-Chamber Divers other matters he proposed to the said Judges by way of advice and seemed well contented with what they answered though it was not to his minde which was That the offences were not capital and that by the Law the prisoners ought to be bailed giving security to the good behaviour whereupon the King told them That he would never be offended with his Judges so they dealt plainly with him and did not answer him by Oracles and Riddles both these Judges did at that time what good office they could to bring the King on to heal this breach The first day of Michaelmas Term it was moved by Mr. Mason to have the Resolution of the Judges and the Court with one voice said That they are now content that they shall be bayled but that they ought to finde sureties also for the good behaviour and Iones Justice said That so it was done in the Case which had been often remembred to another purpose two wit Russels Case in 9 E. 3. To which Mr. Selden answered with whom all the other prisoners agreed in opinion That they have their sureties ready for the bayl but not for the good behaviour and desire that the bayl might first be accepted and that they be not urged to the other and that for these Reasons First the Case here had long depended in Court and they have been imprisoned for these thirty weeks and it had been oftentimes argued on the one side and the other and those that argued for the King alwaies demanded that we should be remanded and those which argued on our side desired that we might be bayled or discharged but it was never the desire of the one side or the other that we should be bound to the good behaviour And in the last Term four several days were appointed for the Resolution of the Court and the sole point in question was If baylable or not therefore he now desires that the matter of bayl and of good behaviour may be severed and not conâ—ounded Secondly because the finding of sureties of good behaviour is seldome urged upon Returns of Felonies or Treasons And it is but an implication upon the Return that we are culpable of those matters which are objected 3. We demand to be bayled in point of Right and if it be not grantable of Right we do not demand it but the finding of Sureties for the good behaviour is a point of discretion meerly and we cannot assent to it without great offence to the Parliament where these matters which are surmised by the Return were acted and by the Statute of 4 Hen. 8. all punishments of such nature are made voyd and of none effect Therefore c. Curia The Return doth not make mention of any thing done in Parliament and we cannot in a judicial way take notice that these things were done in Parliament And by Whitlock The surety of good behaviour is as a preventing medicine of the damage that may fall out to the Commonwealth and it is an Act of Government and jurisdiction and not of Law And by Crook It is no inconvenience to the Prisoners for the same bayl sufficeth and all shall be written upon one peece of parchment And Heath Atturney General said That by the command of the King he had an information ready in his hand to deliver in the Court against them Hide Chief Justice If now you refuse to find sureties for the good behaviour and be for that cause remanded perhaps we afterwards will not grant Habeas Corpus for you inasmuch as we are made acquainted with the cause of your imprisonment Ashly the Kings Sergeant offered his own bayl for Mr. Holles one of the Prisoners who had married his daughter and heir But the Court refused it for it is contrary to the course of the Court unless the Prisoner himself will become bound also And Mr. Long that had found sureties in the Chief Justices Chamber for the good behaviour refused to continue his sureties any longer inasmuch as they were bound in a great summe of 2000 l. and the good behaviour was a
of Magna Charta is That no free-man be imprisoned but by the Law of the Land And it appears by these Books that it is against the Law of the Land that the King should imprison any one 2. Admit that this be onely a signification and notification given by the King himself of the commitment of the prisoner yet it seems that that signification is of no force 1. Because the words are general uncertain for notable contempts There are in the Law many contempts of severall natures there are contempts against the Common law against the Statute-law contempts in words gestures or actions And it appears not to the Court of what nature these contempts were Notable Every contempt which is made to the King is notable Against Our Government Contempt which is committed in a Court of Record or Chancery is a contempt against the Government of the King to wit because they disobey the King when he commands them by his Writs C. 8. 60. a. Beechers case The last two words of the Return are For stirring up of sedition against Us which words likewise are indefinite and generall I find not the word Sedition in our Books but taken adjectively as seditious books seditious newes c. in the Statute of 1 st and 2 d. of Phil. and Mary cap. 3. the words are If any person shall be convicted c. for speaking c. any false seditious or slanderous newes saying of the tayles of the Queen c. he shall lose his ears or pay 100 l. There the penalty imposed upon such Sedition is but a Fine C. 4. Lord Cromwell's case 13. where Sedition is defined to be seorsum itio when a man takes a course of his own And there it is said that the words maintain sedition against the Queen's proceedings shall be expounded according to the coherence of all the words and the intent of the parties So that it is plain that there is a sedition that is onely finable and which is no cause of imprisonment without bail And what the sedition is that is here intended cannot be gathered out of the words they are so generall against Us those words are redundant for every sedition is against the King Upon the generality and incertainty of all the words in the Return he put these cases 18. E. 3. A man was indicted quia furatus est equum and doth not say Felonic and therefore ill 29. ass 45. A man was indicted that he was communis latro and the indictment held vitious because too generall So here the offences are returned generally But there ought to be something individuall C. 5.57 Specot's case quia schismaticus inveteratus is no good cause for the Bishop to refuse a Clerk for it is too generall and there are schisms divers kinds 38. E. 3.2 Because the Clerk is criminosus it is no good cause for the Bishop to refuse him 8 and 9 Eliz. Dy. 254. The Bishop of N. refuseth one because he was a haunter of Taverns c. for which and divers other crimes he was unfit held that the last words are too generall and incertain 40. E. 3.6 In the tender of a marriage and refusall of the heir he ought to alledge a certain cause of refusall Whereupon issue may be taken C. 8.68 Trollop's case to say That the Plantiff is excommunicated for divers contumacies shall not disable him without shewing some cause in speciall of the excommunication upon which the Court may judge whether it were just or no. So here And he concluded with a case that was resolved Hill 33 Eliz. Peak and Paul the Defendants said of the Pantiff Thou art a mutinous and seditious man and maintains sedition against the Queen and the words adjudged not actionable Mason of Lincolns-Inne of Counsell with Mr. Long moved also that the Return was insufficient For the first Warrant that he was committed by command of the King signified by the Privy Councill I will not argue that because it was claimed as an antient right pertaining to the Subject in the Petition of Right whereto the King himself hath given his consent For the second Warrant the Return is for stirring up sedition against Us and Our Government Sedition is not any determined offence within our Law our Law gives definitions or descriptions of other offences to wit of Treason Murder Felony c. but there is no crime in our Law called Sedition It is defined by a Civilian to be Seditio or Secessio cum pars reipublicae contra partem infurgit so that sedition is nothing but division Braeton and Glanvill have the word Seditio generally Before the Statute of 25 E. 3. chap. 2. it was not clear enough what thing was Treason what not by which Statute it is declared what shall be said Treason and that the Iudges shall not declare any thing to be Treason that is not contained within the said Statute but it shall be declared onely by Parliament And that Statute speaks not of Sedition nor the Statute of 1 H. 4. chap. 10. which makes some things Treason which are not contained within the said Statute of 25 E. 3. The Statute of 1 E. 6. chap. 12. takes away all intervenient Statutes which declared new Treasons and the said Act declares other things to be Treason but mentions not Sedition Sedition is the quality of an offence and is oftentimes taken Adverbially or Adjectively To raise tumults or trespasses is sedition Tim. 2. E. 3. rot 23. Garbart's case A man was indicted because in the high street he took I. S. there being in hostile manner and usurped over him royall power which is manifest sedition and there it was but an indictment of trespasse Mich. 20. E. 1. rot 27. One that was surveyor of the Wood-work for the King was indicted for stealing of timber and detaining wages ridding Carpenters wages by one that was but a boy and this is there tearmed Sedition and yet it was but a petty Fellony Mich. 42. E. 3. rot 65. B. R. R. Pope was appealed by the wife of I. S. because he feloniously and seditiously murdered I. S. and seditiously was there put in because it was done privily By which cases it appears that sedition is not taken as a Substantive so that it may be applyed to treason trespasse or other offences By the Statute of 2 H. 4. chap. 15. there is punishment inflicted for the raising of seditious doctrine and yet no punishment could have been inflicted for it untill the said Statute yet it was seditious as well before the said Statute as after And this appears also by the Statute of 1 and 2 of Phil. and Mar. chap. 3. which hath been cited The Statute 13 Eliz. chap. 2. reciâ—es that divers seditious and evill disposed persons c. obtained Bulls of reconciliation from the Pope which offence was made treason by the said Statute for it was not before and yet there was sedition and by the saâ— Statute the aiders and abettors
are but in the case of Premunire By the Statute of 13. Eliz. chap. 1. for the avoiding of contentious and seditious Titles to the Crown it is enacted by the said Statute That he that shall declare the Successor of the King shall forfeit the moity of his goods c. so that the said offence although it be seditious is not treason by the Common Law nor is made treason by the Statute of 25. E. 3. nor by the Statute of 13 Eliz. By the Statute of 23 Eliz. chap. 2. he that speaks seditious or slanderous news of the Queen shall lose his ears or pay 200 l. and the second offence is made Felony The Statute of 35 Eliz. chap. 1. 〈…〉 seditious Sectaries which absent themselves from the Church they are to be punished 10 l. by the month Out of all which Statutes it may be collected that the word Sedition is taken variously according to the subject in hand And C. 4. Lord Cromwell's case Seditious is referred to doctrine There are offences more high in their nature than sedition which were not treason unlesse so declared by act of Parliament Every rebellious act is sedition yet if such Acts be not within the Statute of 23 Ed. 3. they are not treason 17 R. 2. chap. 8. Insurrection of villains and others is not made treason which proves that before this Act it was not treason And this Act of 17 R. 2. is repealed by the Statute of 1 H. 4. By the Statute of 3 and 4 E. 6. chap. 5. to assemble people to alter the Lawes is made treason if they continue together an houre after Proclamation made This assembly of people was sedition at the Common Law and the very assembly if they after dissolve upon Proclamation made is not treason by the said Statute By the Statute of 14 Eliz. chap. 1. it is made Felony malitiously and rebelliously to hold from the Queen any Castles c. but because this relates not to the Statute of 25 E. 3. it is not treason 2. It seems clearly that this Case is within the Petition of Right in which Magna Charta and the Statutes of 25 and 28 E. 3. are recited The grievance there was That divers have been imprisoned without any cause shewed to which they might make answer according to the Law And upon this Return nothing appears to be objected to which he might answer It appears not what that Act which is called Sedition was This is the very grief intended to be remedied by this Statute To this he cannot answer according to Law It appears not whether this were a seditious act trespasse or slander or what it was at all The words are Sedition against the King This helps not for every offence is against the King against his Crown and dignity that which disturbs the Common-wealth is against the King seditious doctrine is sedition against the King as is before said In 28 H. 6. vide Postrat fol. 19. the Lords and Commons desire the King that William de la Pool may be committed for divers treasons and sundry other heinous crimes and the Petition held not good because too generall Whereupon they exhibit particular Articles against him And therefore upon the whole matter he concluded and prayed that Mr. Long might be discharged from his imprisonment On another day Barckley and Davenport the Kings Sergeants argued for the King That this Return was sufficient in Law to detain them in prison Barckley began and said That the case is new and of great weight and consequence and yet under favour the prerogative of the King and the liberty of the Subject are not mainly touched therein for the case is not so generall as it hath been made but particular upon this particular Return The liberty of the Subject is a tender point the right whereof is great just and inviolable The prerogative of the King is an high point to which every subject ought to submit I intend not to make any discourse of the one or the other I will onely remember what the King hath determined upon them both in his speech which he made upon the Petition of right to wit That the Peoples liberties strengthen the Kings prerogative and that the Kings prerogative is to defend the Peoples liberties Thi◠〈◊〉 settle the hearts of the people concerning their liberty The way which I intend to treat in my Argument is to answer to the objections and reasons which have been made and to give some reasons whereby this Return shall be sufficient The objections which have been made are reducible to four heads 1. By what the prisoner here shall be said to be committed and detained 2. That this Commitment is against the Petition of right 3. That the Cause which is here returned is generall and incertain 4. That the offences mentioned in the Return are but Finable and therefore notwithstanding them the party is bailable For the first it hath been objected that the commitment here was by the Lords of the Privy Councill and the signification of this cause is by the King himself But I say that there is a further matter in the Return for the Lords of the Councill do it by the command of the King and they onely pursue this command I will not dispute whether the Lords of the Councill have power to commit an offender or no it is common in experience 33 H. 6.28 Poignâ—â— case is expresse in it And in the Petition of right it is admitted that they may commit And this is not alledged there for a grievance but the grievance there was because the particular charge of commitment was not shewed Some Books have been objected to prove that the King though in person cannot commit any person 16 H. 6. F. Monstrance de faits 182. But the authority of that Book vanisheth if the case be put at large which was in trespasse for cutting of Trees The Defendant said That the place where c is parcell of the Mannor of D. whereof the King is seised in Fee and the King commands us to cut And the opinion of the Court was that this is no plea without shewing a specialty of the command of the King And there the whole Court saies That if the King command me to arrest a man whereby I arrest him he shall have trespasse or imprisonment against me although it be done in the presence of the King That the following words are to be understood as the principal case was of one command of the King by word and then such command by word to arrest a man is void And 1 H. 7.4 was objected Hussey saies that Markham said to King Edw. 4. that he cannot arrest a man for suspition of Treason or Felony because if he do wrong the party cannot have his action To this I say That the Book there is to be understood of a wrongfull arrest for there is spoken of an action of false imprisonment and a wrongfull arrest cannot be made by the
stirring of sedition Seditio as an approved Author saies imports discordiam to wit when the members of one body fight one against another The Lord of St. Albans who was lately the Lord Chancellor of England and was a Lawyer and great States-man likewise and well knew the acceptation of this word Sedition in our Law hath made an Essay of Sedition and the Title of the Essay is Of Seditions and Tumults the whole Essay deserves the reading And there is a Prayer in the Letany From sedition and heresie c. So that there Sedition is taken as a kind of Sect. This being the naturall signification of the word then the next labour shall be to see if any thing in our Law crosse this exposition And it seems clearly that there is not 2 H. 4. cap. 15. And it is in the Parliament-Roll numb 48. against Lollards who at that time were taken as hereticks saies That such Preachers which excite and stir up to sedition shall be convented before the Ordinary c. There sedition is taken for dissention and division in doctrine And this is not made treason by the said Statute although the said Statute be now repealed by the Statute of 25 H. 8. c. 4. 1 and 2 Phil. Mar. c. 3. which is in Rastall Newes 4. which is an act against seditious words and newes of the King and Queen which is a great misdemeanor and yet the punishment appointed to be inflicted by the said Statute is but the Pillory or a Fine of 100 l. And the said Statute by the Statute of 1 Eliz. c. 16. was extended to her also which Statute now by her death is expired which I pray may be observed 13 Eliz. cap. 1. against those who seditiously publish who are the true heirs of the Crown that they shal be imprisoned for a year c. And 13 Eliz. c. 2. the seditious bringing in of the Pope's Buls is made treason which implies that it was not so at the Common Law 23 Eliz. c. 2. If any person shal devise write or print any book containing any fals seditious and slanderous matter to the stirring up or moving of any rebellion c. every such offence shal be adjudged Felony And in an Indictment upon the said Statute which see Cook 's Entries f. 352.353 there are the words rebellionem seditionem movere and yet it is but felony 35 Eliz. c. 1. made against seditious Sectaries Also there are certain Books and Authorities in Law which expresse the nature of this word Sedition C. 4.13 the Lord Cromwell's case In an action for those words You like of those that maintain seditions against the Queens proceedings the Defendant pleaded That he intended the maintenance of a seditious Sermon and this was adjudged a good plea and â—ustification From which it followes that the Seditious Sermon mentioned in the Declaration and the maintaining of sedition against the Queen is all of one signification for if they might have been taken in a different sense the justification had not been good Phillips and Badby's case which is in C. 4. 19. a. which was objected by Serjeant Berkley makes strongly for me for there an action upon the case was brought by a person for those words Thou hast made a seditious Sermon and moved the people to sedition this day And although it were there adjudged that the action lay yet the reason of the Iudgment is observable which was because the words scandalize the Plaintiff in his profession which imply that if they had not scandalized him in his profession no action would have lain And ordinary words if they scandalize a man in his profession are actionable as to say to a Iudge that he is a corrupt man or to a Merchant that he is a Bank-rupt although if they were spoken to another man they would not bear an action And although the Book say that no act followed there yet if the matter objected had been treason the very will had been punishable and by consequence a great slander But it is observed that words which imply an inclination onely to sedition are not actionable as Seditious knave but inclination to treason is treason therefore words which imply it are actionable And also for divers words an action upon the case will lye which induce not treason or felony as for calling a woman Whore by which she loseth her marriage and such like Then sedition is no offence in it self but the aggravation of an offence and no Indictment as I have said afore was ever seen of this singly by it self Tr. 21. E. 3. roll 23. Sir John Garbut's case which was put before by Mason the Indictment was in prejudice of his Crown and in manifest sedition and yet the offence there was but a Robbery It is true that upon his arraignment he stood mute therefore the Roll is that he was put to penance that is so strong and hard pain and this proves that it was not treason for if a man arraigned of treason stand mute yet the usuall judgment of treason shall be given on him And it is true also that he cannot have his Clergy because insidiator viarum was in the Indictment which if it was outs the party of his Clergy untill the Statute of 4 H. 4. c. 2. as is observed in C. 11. Poulter's case And upon the same Roll of 21 E. 3. there are four other Indictments of the same nature where Seditiosè is contained in them Anno 1585 Queen Elizabeth sent a Letter which I have seen by the hands of the noble Antiquary Sir Robert Cotton to the Maior of London for the suppressing of divers seditious Libels which were published against her Princely Government and yet in the conclusion of the Letter it appears that they were onely against the Earl of Leicester and this was to be published onely by Proclamation in London 5 H. 4. numb 11. and 13. The Earl of Northumberland preferred a Petition to the King in Parliament in which he confesseth that he had not kept his Majesties Laws as a liege subject and also confesseth the gathering of power and the giving of Liveries Wherefore he petitioned the worship of the King for so are the words for his grace The King upon this Petition demanded the opinion of the Lords of Parliament and of the Iudges assistant if any thing contained within the said Petition were treason or no and it was resolved by them all that nothing as it is mentioned in the said Petition was treason but great misdemeanors and yet truly though not fully there mentioned it was a great rebellion and insurrection But they adjudged according to the said Petition as you are now to judge upon the Return as it is made here In Mich. 33 Cawdry's case Sedition and Schism were described As schism is a separation from the unity of the Church so sedition is a separation from the unity of the Common-wealth And an Author saies that a seditious person differs from a
the Antient and Fundamental Law issuing from the first frame and constitution of the Kingdom The third that this Liberty of the Subject is not onely most convenient and profitable for the People but most honourable most necessary for the King yea in that point of supply for which it was endeavored to be broken The form of Government is that which doth actuate and dispose every part and member of a State to the common good and as those parts give strength and ornament to the whole so they receive from it again strength and protection in their several stations and degrees If this mutual relation and intercourse be broken the whole frame will quickly be dissolved and fall in pieces and in stead of this concord and interchange of support whilest one part seeks to uphold the old form of Government and the other part to introduce a new they will miserably consume and devour one another Histories are full of the calamities of whole States and Nations in such cases It is true that time must needs bring some alterations and every alteration is a step and degree towards a dissolution those things onely are eternal which are constant and uniform Therefore it is observed by the best Writers upon this Subject that those Commonwealths have been most durable and perpetual which have often reformed and recomposed themselves according to their first Institution and Ordinance for by this means they repair the breaches and counterwork the ordinary and natural effect of time The second question is as manifest there are plain footsteps of those Laws in â—he Government of the Saxons they were of that vigor and force as to overlive the Conquest nay to give bounds and limits to the Conqueror whose victory gave him first hope but the assurance and possession of the Crown he obtained by composition in which he bound himself to observe these and the other antient Laws and Liberties of the Kingdom which afterwards he likewise confirmed by oath at his Coronation from him the said Obligation descended to his Successors It is true they have been often broken they have been often confirmed by Charters of Kings by Acts of Parliaments but the Petitions of the Subjects upon which those Charters and Acts were founded were ever Petitions of Right demanding their antient and due Liberties not suing for any new To clear the third Position he said may seem to some men more a Paradox That those Liberties of the Subject should be so honorable so profitable for the King and most necessary for the supply of his Majesty It hath been upon another occasion declared that if those Liberties were taken away there should remain no more industry no more justice no more courage who will contend who will endanger himself for that which is not his own But he said he would not insist upon any of those points nor yet upon other very important he said that if those Liberties were taken away there would remain no means for the Subjects by any act of Bounty or Benevolence to ingratiate themselves to their Soveragn And he desired their Lordships to remember what profitable Prerogatives the Laws had appointed for the support of Soveraignty as Wardships Treasures trove Felons-goods Fines Amercements and other Issues of Courts Wrecks Escheats and many more too long to be enumerated which for the most part are now by Charters and Grants of several Princes dispersed into the hands of private Persons and that besides the antient Demeasnes of the Crown of England William the Conqueror did annex for the better maintenance of his Estate great proportions of those Lands which were confiscate from those English which persisted to withstand him and of these very few remain at this day in the Kings possession And that since that time the revenue of the Crown had been supplied and augmented by Attainders and other Casualties in the age of our Fathers by the dissolution of Monasteries and Chantries neer a third part of the whole Land being come into the Kings possession He remembred further that constant and profitable Grant of the Subjects in the Act of Tonnage and Poundage And all these he said were so alienated anticipated overcharged with annuities and assignments that no means were left for the pressing and important occasions of this time but the voluntary and free gift of the Subjects in Parliament The hearts of the People and their bounty in Parliament is the onely constant Treasure and Revenue of the Crown which cannot be exhausted alienated anticipated or otherwise charged and incumbred In his entrance into the second part he propounded these Steps by which he meant to proceed 1. To shew the state of the Cause as it stood both in the Charge and in the Proof that so their Lordships might the better compare them both together 2. To take away the pretences of mitigations and limitations of his Opinions which the Doctor had provided for his own defence 3. To observe those circumstances of Aggravation which might properly be annexed to his Charge 4. To propound some Precedents of former times wherein though he could not match the offence now in question for he thought the like before had never been committed yet he should produce such as should sufficiently declare how forward our Ancestors would have been in the prosecution and condemning of such offences if they had been then committed The Offence was prescribed in a double maner First by the general scope and intention and by the matter and particulars of the Fact whereby that intention was expressed In the description of the intention he observed six Points every one of which was a Character of extreme malice and wickedness 1. His attempt to misguide and seduce the Conscience of the King 2. To incense his Royal Displeasure against his Subjects 3. To scandalize impeach and subvert the good Laws and Government of the Kingdom and Authority of Parliaments 4. To avert his Majesties minde from calling of Parliaments 5. To alienate his royal Heart from his People 6. To cause Jealousies Sedition and Division in the Kingdom Of these particulars he said he would forbear to speak further till he should come to those parts of the Fact to which they were most properly to be applied The Materials of the Charge were contrived into three distinct Articles the first of these comprehended two Clauses 1. That his Majesty is not bound to keep and observe the good Laws and Customs of the Realm concerning the right and liberty of the Subject to be exempted from all Loans Taxes and other Aids laid upon them without common consent in Parliament 2. That his Majesties Will and Command in imposing any Charges upon his Subjects without such consent doth so far bind them in their Consciences that they cannot refuse the same without peril of eternal damnation Two kinds of Proof were produced upon this Article The first was from some assertions of the Doctors concerning the power of Kings in general but by necessary consequence