subjects grievance by the late Imprisonment of their persons pag. 21 Sir Benjam Ruddier's speech pag. 27 Sir Robert Phillips's speech pag. 28 Sir Thomas Edmonds pag. 30 Sir Iohn Elliot ibid. Sir Hum May ibid. The Petition for the fast March 26. 1628. pag. 31 The Kings Propositions March 28. pag. 32 Three grand questions ibid. Sir Iohn Coke his speech at a Conference between the Lords and Commons about the Petition to the King against Recusants pag. 33 The Petition of both Houses to his Majesty concerning Recusants March 31. pag. 34 The Kings Answer to the Petition against Recusants pag. 37 The Answer to the same Petition by the Lord Keeper Coventry pag. 38 Sir Edward Cokes speech March 25. upon a Question of law in point of Judgement given in the Kings Bench Mich. 3. Caroli viz. that a Prisoner detain'd by Commitment per special Mandat Regis without expressing a Cause is not Bailable wherein he held negatively pag. 39 The substance of the Kings speech upon the relating of the proceedings of the Parliament to him by the Counsellers of the Commons house of Parliament April 4. pag. 41 The Duke of Buckinghams speech to his Majesty the 4 of April ibid. S r Iohn Elliot in Answer to M r Secretary Coke's message of thanks from the King and the Duke of Buckingham delivered in the Commons house of Parliament April 5 pag. 43 A message by Secretary Coke from the King to the lower house April the 7 pag. 44 S r Benjamin Ruddier's speech upon the Receit of his Majesties Answer to the petition against Recusants pag. 45 The Kings message to the House of Commons by M r Speaker April 12. pag. 46. The petition concerning billetting of souldiers April 14. pag. 47 Nine heads of the House of Commons to the Speaker pag. 49 The Speaker S r Iohn Finches speech upon the nine heads pag. 50 The Kings Answer to the petition concerning billetting of souldiers pag. 53 S r Dudley Diggs his Introduction pag. 54 The Argument made by M r Littleton at the Command of the House of Commons out of Acts of Parliament and Authorities of Law expounding the same at the first Conference with the Lords touching the person of every Freeman pag. 56 The Objections of the Kings Councell with the Answers made thereto at the two Conferences touching the same matter pag. 65 The true Copies of the Records not printed which were used on either side of that part of the debate pag. 70 The Argument which by Command of the House of Commons was made at their first Conference with the Lords touching the liberty of the person of every Freeman out of presidents of Record and resolutions of Judges in former times by M r Selden pag. 76 The whole copies of the presidents of Record mentioned in one of the Arguments made at the first conference with the Lords touching the liberty of the person of every Free-man pag. 92 S r Edward Coke pag. 107 The Arguments of Serjeant Bramston on the Habeas Corpus pag. 111 The Argument of M r Noye upon the Habeas Corpus pag. 117 The Argument of M r Selden upon the Habeas Corpus pag. 122 The Argument of M r Calthrop upon the Habeas Corpus pag. 125 The substance of the Objections made by M r Attorney generall before a Committee of both Houses to the Argument that was made by the House of Commons at the first Conference with the Lords out of presidents of Record and resolutions of Judges in former times touching the liberty of the person of every Free-man and the Answer and replies presently then made by the House of Commons to these Objections pag. 121 The proceedings against the Earl of Suffolk April 14. p. 135 Severall speeches made at the Debates concerning the Kings propositions pag. 138 M r Alford ibid. S r Robert Maunsell ibid. S r Francis Seymour ibid. S r Peter Hayman ibid. M r Pimme ibid. Secretary Coke ibid. S r Dudley Diggs pag. 139 M r Spencer ibid. M r Iohn Elliot ibid. S r Edward Coke ibid. S r Thomas Wentworth pag. 146 S r Henry Martin ibid. M r Kirton ibid. S r Robert Phillips ibid. Serjeant Hoskins ibid. Serjeant Ashleys Argument seconding M r Attorney in the behalf of his Majesty pag. 141 M r Noyes Argument April 16 pag. 144 M r Glanvills Argument pag. 145 The Answer of the Judges for matter of fact upon the Habeas Corpus April 21 pag. 146 Iudge Whitlock's speech pag. 147 Iudge Iones his speech pag. 148 Iudge Doderidges speech pag. 149 The Lord chief Iustice his speech ibid. The Earl of Warwick's speech April 21 pag. 150 The Arch Bishop of Canterburies speech at the Conference of both Houses April 25 pag. 153 The five propositions read by the Lord Bishop of Norwich April 25. 1628 ibid. S r Dudley Diggs his speech in behalf of the Commons pag. 154 S r Benjamin Ruddier's speech April 28 pag. 157 The Lord Keeper's speech April 28. pag. 157 The Bishop of Exceter's letter sent to the House of Commons April 28. pag. 158 M r Hackwell of Lincolnes Inne his speech in the lower House May 1 pag. 159 The objections against M r Hackwel's speech ibid. Secretary Coke's message May 1 pag. 161 Secretary Coke's speech concerning himself and the nature of his place under his Majesty pag. 162 Henry Tomson one of the Sheriffs and Robert Henisworth Alderman of the city of York their submission for their indirect choosing of S r Thomas Savil Knight pag. 163 Propositions drawn for the defence of this Kingdome and the annoyance of the enemies of the same by sea ibid. Iudge Andersons speech pag. 165 The Kings message May 2 by Secretary Coke pag. 167 M r Masons speech May 2 ibid. The Speakers speech to his Majesty in the banquetting house May 5 pag. 171 The Kings Answer to the House of Commons delivered by the Lord Keeper May 5 pag. 173 The Lord Cok's speech at the Conference in the painted Chamber presenting the petition of Right May 8 pag. 174 The petition of Right to the Kings most excellent Majesty pag. 175 S r Benjamin Ruddier's speech pag. 178 His Majesties letter to the Lords spirituall and temporall of the higher House of Parliament pag. 180 The Kings message by the Lord Keeper May 21 pag. 181 M r Masons speech concerning the addition propounded by the Lords to be added to the petition of Right pag. 182 The Reasons of the Commons House delivered by M r Glanvil why they cannot admit of the propositions tendred unto them by the Lords 186 S r Henry Martin's speech pag. 188 The Kings speech in the Higher House at the meeting of both Houses Iune 2. pag. 194 The Lord Keeper in explanation of the same pag. 195 The Kings Answer to the petition of Right Iune 2. by the Lord Keeper ibid. S r Iohn Elliot's speech Iune 3. ibid. A Report from the Committee for trade Iune 4. pag. 201 His Majesties message to the House of Commons by
before them and mature deliberation taken by them Now plainly in that case of the 13. Iacob there is not so much as pretence of any debate at Bar or Bench. All that is reported to have been is reported as spoken upon the sudden and can any man take such a sudden opinion to be of value against solemne debates and mature deliberation since had of the point and all circumstances belonging to it which have within this half year been so fully examined and searched into that it may well be affirm'd that the learned'st man whatsoever that hath now considered of it hath within that time or might have learned more reason of satisfaction in it then ever before he met with Therefore the sudden opinions of any Judge to the contrary is of no value here Which also is to be said of that opinion obviously delivered in the Commons House 18. Iac. as M r. Attorney objected out of the Journal book of the House But besides neither was the truth of that report of that opinion in the Journal any way acknowledged For it was said in behalf of the House of Commons that their Journals were for matter of order and resolutions of the House of such Authority as that they were as their Records but for any particular Mans opinion noted in any of them it was so far from being of any Authority with them that in truth no particular opinion is at all to be entered in them and that their Clerks offend when ever they do the contrary And to conclude no such opinion whatsoever can be sufficient to weaken the clear Law comprehended in these resolutions of the House of Commons grounded upon so many Acts of Parliament so much reason of Common Law and so many Presidents of Record and the resolution of all the Judges of England and against which no Law written not one President not one reason hath been brought that makes any thing to the contrary And thus to this purpose ended the next day of the Conference desired by the Lords and had by a Committee of both Houses The Proceedings against the Earle of SUFFOLK 14. April 1628. MR. Kerton acquainted the House how that the Earle of Suffolk had said to some Gentlemen that M r. Selden had razed a Record and deserved to be hanged for going about to set division betwixt the King and his Subjects And being demanded to whom the words were spoken he was unwilling to name any till by question it was resolved he should nominate him He then named S r. Iohn Strangwaies who was unwilling to speak what he had heard from the Earle but being commanded by the House and resolved by question he confessed That upon Saturday last he being in the Committee Chamber of the Lords the Earle of Suffolk called him unto him and said Sir Iohn will you not hang Selden To whom he said for what The Earle replied By God he hath razed a Record and deserves to be hanged This the House took as a great injury done to the whole House M r. Selden being imployed by them in the conference with the Lords in the great cause concerning the Liberty of the Persons of the Subjects The House presently sent S r. Robert Philips with a message to the Lords to this effect He expressed the great care the Commons had upon all occasions to maintain all mutual respect and correspondency betwixt both Houses Then he informed them of a great injury done by the Earle of Suffolk to the whole house and to M r. Selden a particuler Member thereof who by their Command had been imployed in the late conference with their Lordships That the House was very sensible thereof and according to former Presidents made them truly acquainted with it and demaunded Justice against the Earle of Suffolk he read the words saying they were spoken to Sir Iohn Strangwayes a Member of their House After a short stay the Lords called for the Messenger to whom the Lord Keeper gave this Answer He signified the great desire and care of their Lordships to maintain and increase the correspondencies betwixt both Houses and as a Testimony thereof they had partly taken into consideration the charge That the Earle of Suffolk being a Man of great place and Honour had voluntarily protested upon his Honour and Soul that there passed no such words as those from him to Sr. Iohn Strangwayes And the Lord Keeper wished that their Lordships speedy proceedings in this business might testifie their love and good will to the Commons House The next day being the 15. of April Sr. Iohn Strangwayes made a Protestation openly in the House wherein he avowed that notwithstanding the Earls denial he did speak those words positively unto him and would maintain it any way fitting a Member of that House or a Gentleman of Honour They ordered that this Protestation should be entered into the Journal book and that a Committee should take into consideration what was fit for the House to proceed to for the justification of S r. Iohn Strangwayes and what was fitting to be done in this Case and to examine Witness of the proof of the words Upon the 17. day S r. Iohn Elliot reported what the Committee had done That they had sent for and examined Sr. Christopher Nevill who related that upon Saturday being in the Lords Committee Chamber the Earle of Suffolk said thus to him Mr. Attorney hath cleared the business and hath made the cause plain on the Kings side and further said M r. Selden hath razed a Record and hath deserved to be hanged and the Lower House should do well to joyn with the Higher in a Petition to the King to hang him and added as a reason For Mr. Selden went about and took a course to divide the King from his people or words to that effect And being asked whether he conceived that those words of dividing the King from his people had relation to the whole and general action of M r. Selden before the Lords or to the particuler of razing a Record he conceived they were referred to the general action They had examined one M r. Littleton who confessed he heard the Earle of Suffolk speak to a Gentleman whom he knew not words to this affect viz. That he would not be in M r. Seldens Coat for 10000 l. and that M r. Selden deserved to be hanged The second part of this Report concerned the particuler of S r. Iohn Strangwayes wherein though the Committee found no Witness to prove the words spoken to S r. Iohn Srangwayes yet there were many circumstances which perswaded them of the truth thereof 1. That the same words in the same syllables were spoken to Sr. Christopher Nevill and that the Earle as he called to him S r. Iohn Strangwayes so he called to him Sr. Christopher Nevill 2. That the Earle of Suffolk called S r. Iohn Strangwayes to him and spake to him was proved by S r. George Fane and S r. Alexander S r. Iohn
at which time the Earle seemed full of that which he delivered 3. That S r. Iohn Strangwayes instantly after his discourse with the Earle of Suffolk went to the Earle of Hartford and delivered him the passages betwixt them being the same related in the house 4. From the unwillingness of S r. Iohn Strangwayes though called upon by the House to testifie against the Earle till it was resolved by question he should do it from a probability that had not these words been spoken to himself it is like he would have produced Sr. Christopher Nevill from whom he also heard the same 5. From the worth of the Gentleman and his ingenious protestation in the House That he was ready to justifie the truth of what he said in any course the House should thinck meet or was fit for a Gentleman of Honour Hereupon the House resolved by question 1. That the Earle of Suffolk notwithstanding his denial had laid a most unjust and scandalous imputation upon M r. Selden a Member of the House being imployed in the service of the House and therein upon the whole House of Commons 2. That this House upon due examination is fully satisfied that S r. Iohn Strangwayes notwithstanding the Earle of Suffolks denial hath affirmed nothing but what is most true and certain 3. That these particulers and additions be again presented to the Lords and the Earle of Suffolk newly charged at the Bar and the Lords desired to proceed in Justice against the Earle and to inflict such punishment upon him as an offence of so high a nature being against the House of Commons doth deserve Sr. Iohn Elliot was partly sent with the Message to the Lords who after a while returned this answer That they had taken the Message into consideration and would further take it into due consultation and in convenient time would return an answer by Messengers of their own Several Speeches made at the debates concerning the KINGS Propositions for supply M r. ALFORD THat to answer punctually to every Article was but to discover the Kings wants which is neither safe nor fit as the world now goes nor is it good for him to ask more then we can give nor for us to offer disproportionably withall it might draw to a president for the Subjects to make and maintain Wars Sr. ROBERT MAUNSELL IT had been much better for us to have taken care for these provisions 3. years since His desire is not to have the Commons over-burthened That 7. of these Propositions are not to be neglected viz. The safe guarding of the Coasts The defence of the Elve The defence of Rochell The increasing of the Navy The repairing of the Forts The discharge of the Arrears of Merchants ships and the defence of the King of Denmark the other to be delayed to our next meeting at Michalmas S r. FRANCIS SEYMOUR THat as supply is desired so are we met for that purpose but if by those late courses we be disabled then he is not to expect it from us our greatest grievances being his Majesties pressing wants two subsedies formerly given and five forcibly and unadvisedly taken are great motives not to be too forward That we have too hastily drawn two great Enemies upon us and all this done by men of small or no judgement S r. PETER HAYMAN THat vast Propositions are delivered to us in shew which he desires he may give an Estimate of that first brought them in M r. PYMM. THat in no Case it is fit to examine the Propositions especially of the Arrearages of the Merchant ships and for preparation of the forreign Wars Secretary COKE THat three things especially are to be taken into consideration the defence of Rochell the Elve and the Forts He perswades to give bountifully and though the people do not presently pay it yet it gives the King credit abroad and much advanceth his affairs We have already by our carriage and temper taken the Kings heart which he adviseth we make good use of S r. DUDLY DIGGS FOr to try and examine faithfully the Propositions he refers it to the Judgement of the House whether it be fit to handle the business in order or to give in gross considering that the Bill of Tonnage and Poundage is now brought into the House which he thinks they conceive to be given for the safe-guarding of the Seas Mr. SPENCER IN no Case to enter into particulars That formerly hath been given 5. Subsedies for the repairing of the Forts and no penny bestowed on them but the money wasted in dishonour Mr. IOHN ELLIOT THat our late disasters at Calis Reez might discourage us from thinking of forreign attempts At Calis when we neglected the taking of the Spanish Fleet in the Harbour nothing attempted at our landing but drincking and disorder no good account given at the return Concerning service at S. Martins the whole account carried against the Judgement of the best Commanders which makes all the World despise and condemne us besides the inriching of the Enemy with kindenesses and parling with the Forts with presents which time will bring to light Sr. EDWARD COKE THat when England stood alone without friends and addition of Kingdoms as 42. E. 3. the King wholly guided by his Parliament-Councel brought alwayes home Victories both against France and Scotland his 4. reasons of it were 1. Good Councel 2. Valiant Leaders 3. Timely provision 4. Good imployment and fore-cast And likewise in Ric. 2. Hen. 4. Hen. 5. He desires to give plentifully and that in gross not to examine the particulers alleadging Solomon's rule qui repetit separat for said he if we rip them up we sever them for ever And in that Proposition for setting forth 30. ships shall we both pay Tonnage and Subsedies for them This will draw a dangerous President Likewise that other in setting forth God knows whether a 1000. Horse and 10000. Foot being not able to set them forth how shall we look to maintain them abroad That in an Iland the defensive War is best and most proper To conclude our guift in gross will serve best with these times for by that course we shall seem to allow all the Propositions and except against none Sr. THOMAS WENTWORTH THat he will look after the Iland of England and no further except our Fortunes were better That as he is bound in duty to the King so in faithfull love to his Countrey That our freedom and Liberty being known and granted we then may proportion our guift His conclusion was that the final debate of this question may be laid aside untill Friday and in the mean time go on with our grievances S r. HENRY MARTIN NOt to dash the Ship of the Common-wealth twice upon one Rock The disease that we are now sick of is the Kings Evil which none but himself can cure and Iacob's example is our best Predent who wrestling with the Angel would not give over till he got the blessing That our often repetition of
hereby will and command you out of our Treasury remaining in the receipt of the said Exchequer forthwith to pay or cause to be paid unto Phillip Burlamachi of London Merchant the summ of 30000 l. to be paid by him over by Bill of Exchange unto the Low-Countries and Germany unto our trustie and well be loved Sir William Balfoore Knight and Iohn Dalber Esquire or either of them for levying and providing certain numbers of Horse with Arms for Horse and Foot to be brought over into this Kingdom for our service viz. For the levying and transporting of a 1000 Horse 15000 l. for 5000 Muskets 5000 Corslets 5000 Pikes 10500 l. and for 1000 Curasiers compleat 200 Corslets and 200 Carbines 4500 l. Amounting in the whole to the said summ of 30000 l. And this our Letter shall be your sufficient warrant and discharge in this behalf Given under our privy Seal at our Palace of Westminster 30. of Ianuary in the third year of our raign The Commission to the Lords and others of the privy Councel concerning the present raising of money CHARLES by the grace of God King of England Scotland France and Ireland defender of the faith c. To Sir Thomas Coventry Lord Keeper of the great Seal of England Iames Earl of Marlburgh Lord Treasurer Henry Earl of Manchester Lord President of the Councel Edward Earl of Worcester Lord Keeper of the privy Seal George Duke of Buckingham our high Admiral of England William Earl of Pembroke Lord Steward of our Houshould Phillip Earl of Mongommery Lord Chamberlain of our Houshould Theophilus Earl of Suffolk Edward Earl of Dorcet William Earl of Salisbury Thomas Earl of Exceter Iohn Earl of Bridgwater Iames Earl of Carlile Henry Earl of Holland William Earl of D. George Earl of Totnes Sir George Hay Knight Lord Chaunceller of Scotland William Earl of Morton Thomas Earl of Kelly Thomas Earl of Melros Edward Viscount Conway one of our principall Secritaries of State Edward Viscount Wimbleton Oliver Viscount Grandison Henry Viscount Falkland Lord Deputy of Ireland To the Lord Bishop of Winchester William Lord Bishop of Bath and Wells Fulk Lord Brook Dudly Lord Carleton vice Camberlain of our Houshould Sir Thomas Edmonds Treasurer of our Houshould Sir Iohn Savill Comptroller of our Houshould Sir Robert Nawton Master of our Court of Wards Sir Iohn Cooke one of the principal Secritaries of our State Sir Richard Weston Chancellor and under Treasurer of our Exchequer Sir Iulius Caesar Master of the Roll. Sir Humfry May Knight Chancellor of our Dutchy of Lancaster GREETING WHereas the present Conjuncture of the pressing affairs of Christendom and our own particular interest in giving assistance to our oppressed Allies and for the providing for the defence and safety of our own dominions And people do call upon us to neglect nothing that may conduce to those good ends And because monies the principall sinews of War and one of the first and chiefest in all great preparations and actions necessary to be provided in the first place and we are carefull the same may be raised by such ways as may best stand with the State of our Kingdoms and Subjects and yet may answer the pressing occasions of the present times We therefore out of the experience we have had and for the trust we repose in your wisdoms fidelities and dutifull care of your services and for the experience you have of all great causes concerning us and our State both as they have relation to forraign parts abroad and as to our Common-Wealth and People at home Ye being Persons called by us to be of our privy Councel have thought fit amongst those great and important matters which so much concern us in the first and chiefest place to recommend this to your speciall care and dilligence And we do hereby authorize and appoint and stricktly will and require you speedily and seriously to enter into consideration of all the best and speediest ways and means yee can for raising of money for the most important occasions aforesaid which without extreamest hazard to us our dominions and people and to our friends and Allies can admit of no long delay The same to be done by imposition or otherwise as in your wisdom and best Judgments ye shall finde to be most convenient in a case of this inevitable necessity wherein form and circumstance must be dispensed with rather then the substance be lost or hazarded And herein our will and pleasure is that you or as many of you as from time to time can be spared from attendant upon our Person or other our necessary services do use all dilligence by your frequent meetings and serious consultations and when you have brought any thing to maturity ye make report thereof unto us and advertise us of those things ye shall either resolve upon or thinck fit to represent unto us for the advancement of this great service which with the greatest affection we can we recommend to your best care and Iudgement Whereof you must not fail as you tender our honour and the honour and safety of our Dominions and People and for the doing hereof these presents shall be to you and every of you a sufficient warrant In witness whereof we have caused these our Letters to be made Letters Patents Witnes our selfe at Westminster the last day of February in the third yeare of our Raigne Per ipsum Regem Articles to be propounded to the Captains and Masters as well English as French touching the service in hand at ROCHEL 4. May 1628. the ships rideing before the Town 1. WHether in your opnion and judgments by the means and strength we have the Floates and Pallizadoes may be forced and the entrance into the Town may be thereby made for the victuallers 2. If you shall think it fit what in your opinions will be the best and readiest way to open the same 3. Whether you hold it fit to send in the victuallers at the same instant together with the fire ships and barks considering that if it should not take effect instead of relieving the Town we relieve the Enemy 4. If in this attempt part shall get through and the greater part be taken by the Enemies whether the service or dishonour will be greater 5. If in case you think it fit to give the attempt whether you hold it likewise necessary that the Merchant ships should second or follow them and how far you hold it safe for them to go 6. Whether the more to countenance the service you hold it fit for the Kings ships to put themselves under sail being they are to be exposed to shallow water and a narrow Channel and to lye under command of many of the Enemies Forts where by an unlucky accident many of them may be brought on ground and miscarry 7. You are here to deliver your opinions upon your allegiance the rather because the onely service the Kings ships there can do is to cause the Enemies Fleet which rides
please your Lordship I shall humbly move you that this Gentleman may also be bailed for under favour my Lord there is no cause in the return why he should be any farther imprisoned and restrained of his liberty My Lord I shall say something to the form of the writ and of the return but very little to them both because there is a very little left for me to say My Lord to the form I say it expresseth nothing of the first caption and therefore it is insufficient I will adde one reason as hath been said the Habeas Corpus hath onely these words quod habeas corpus ejus una cum causa detensionis non captionis But my Lord because in all imprisonment there is a cause of caption and detention the caption is to be answered as well as the detention I have seen many writs of this nature and on them the caption is returned that they might see the time of the caption and thereby know whether the party should be delivered or no and that in regard of the length of his imprisonment The next exception I took to the form is that there is much incertainty in it so that no man can tell when the writ came to the keeper of the prison whether before the return or after for it appears not when the Kings command was for the commitment or the signification of the Councell came to him It is true that it appears that the warant was dated the seventh of November but when it came to the keeper of the prison that appears not at all and therefore as for want of mentioning the same time of the caption so for not expressing the same time when this warrant came I think the return is faulty in form and void And for apparent contradiction also the return is insufficient for that part of the return which is before the warrant it is said quod detentus est per speciale mandatum domini Regis the warrant of the Lords of the Councel the very syllables of that warrant are that the Lords of the Councell do will and require him still to detain him which is contrary to the first part of the return Besides my Lord the Lords themselves say in another place and passage of the warrant that the King commanded them to commit him and so it is their commitment so that upon the whole matter there appears to be a clear contradiction in the return and there being a contradiction in the return it is void Now my Lord I will speak a word or two to the matter of the return and that is touching the imprisonment per speciale mandatum domini Regis by the Lords of the Councell without any cause expressed and admitting of any or either of both of these to be the return I think that by the constant and settled Laws of this kingdome without which we have nothing no man can be justly imprisoned be either of them without a cause of the commitment expressed in the return My Lord in both the last Arguments the statutes have been mentioned and fully expressed yet I will adde a little to that which hath been said The statute of Magna Charta cap. 29. that statute if it were fully executed as it ought to be every man would enjoy his liberty better then he doth The Law saith expresly no Free-man shall be imprisoned without due processe of the Law out of the very body of this Act of Parliament besides the explanation of other statutes it appears Nullus liber homo capiatur vel imprisonetur nisi per legem terrae My Lord I know these words legem terrae do leave the question where it was if the interpretation of the Statute were not But I think under your Lordships favour there it must be intended by due course of Law to be either by presentment or by indictment My Lords if the meaning of these words Per legem terrae were but as we use to say according to the lawes which leaves the matter very uncertain and per speciale mandatum c. be within the meaning of these words according to the law then this Act had done nothing The Act is No Free-man shall be imprisoned but by the law of the land if you will understand these words per legem terrae in the first sense this statute will extend to Villains as well as to Free-men for if I imprison another man Villain the Villain may have an action of false imprisonment But the Lords and the King for then they both had Villains might imprison them and the Villain could have no remedy but these words in the statute per legem terrae were to the Free-man which ought not to be imprisoned but by due processe of law and unlesse the interpretation shall be this the Free-man shall have no priviledge above the Villain So that I conceive my Lord these words per legem terrae must be here so interpreted as in 42 Eliz. the Bill is worth the observing it reciteth that divers persons without any writ or presentment were cast into prison c that it might be enacted that it should not be so done hereafter the answere there is that this is an Article of the great Charter this should be granted so that it seemes the statute is not taken to be an explanation of that of Magna Charta but the very words of the statute of Magna Charta I will conclude with a little observation upon these words nec super eum mittimus which words of themselves signifie not so much a man cannot finde any fit sense for them But my Lord in the seventh year of King Iohn there was a great Charter by which this statute in the ninth of Henry the third whereby we are now regulated was framed and there the words are nec eum in Carcerem mittimus we will not commit him to prison that is the King himself will not and to justifie this there is a story of that time in Matthew Paris and in that Book this Charter of King Iohn is set down at large which Book is very authentique and there it is entred and in the ninth of Henry the third he saith that the statute was renewed in the same words with the Charter of King Iohn and my Lord he might know it better then others for he was the Kings Chronologer in those times and therefore my Lord since there be so many reasons and so many presidents and so many statutes which declare that no Free-man whatsoever ought to be imprisoned but according to the laws of the land and that the liberty of the subject is the highest inheritance that he hath my humble request is that according to the ancient laws and priviledges of this Realm this Gentleman my Client may be bailed The Argument of Master Calthrop upon the Habeas corpus Sir Iohn Corbet being brought to the Kings Bench Bar with Sir Edmond Hampden Sir Walter Earl and Sir Iohn Henningham who were also
brought thither by severall writs of Habeas Corpus with the same return I being assigned by the Court of Kings Bench upon a petition delivered to be of Councell with Sir Iohn Corbet did move that Sir Iohn Corbet might be discharged of his imprisonment and put in bail for I did conceive that the return of this Habeas corpus was insufficient both in the matter of the return and in the manner of the return and so there ought not to be a longer detaining of Sir Iohn Corbet in prison for as unto the manner of the return it is not laid down precisely that Sir Iohn Corbet is detained in prison by the speciall commandment of the King signified by the warrant of the Lords of the Councell the which is not a direct affirmation that he is detained by the speciall command of the King but that the Lords of the Councel by their warrant have signified unto him that he was committed and still detained by the speciall command of the King And howsoever the Lords of the Councell had signified that he was detained by the commandment of the King yet it may be he was not detained by the commandment of the King for their signification of the same by warrant may be untrue and the warrant of the Lords of the Councell that is returned in haec verba importeth that the keeper of the Gatehouse rather took upon him to return that was signified unto him by the warrant of the Lords of the Councell that Sir Iohn Corbet was committed and detained by the speciall commandment of the King because if the keeper had taken upon him to affirm it upon his return then needed he not to have returned the warrants of the Lords of the Councell and the warrant it self sheweth that he had onely his information from the Lords of the Councell for their warrant is to let the keeper know that both the first commitment and this direction for the continuing of him in prison were and are by his Majesties speciall commandment and I do not see as this return is made that an accord upon the case can lie upon the keeper of the Gatehouse if S r. Iohn Corbet was not committed nor detained by the special commandment of the King so long as the warrant of the Lords of the Councell be returned as it was made because he doth return the same as the significavit of the Lords by their warrant Register 65. the writ of Excommunication Capiend goeth Rex vicecom Lincoln S. significavit nob venerabilis Pater Henricus Lincolniensis Episcopus per Literas suas Patentes quod R. suus Parochial propter suam manifestā cotumac authoritate ipsius Episc ordin excom est nec se vult per censuram Ecclesiasticam justiciar c. tibi praecipimus quod praedict R. per corpus suum secundum consuetud Angliae justic c. and yet no man will say that there is an information of the King that R. is excommunicated but onely that the Bishop of Lincoln had signified unto him that R. was excommunicated and in Fitz. Nat. Br 663. and Register 65. it appears that the form of the writ of Excommunication deliberand is Rex Vice com London Salut Cum Thom Iay allutar London qui nuper ad denuntiat venerabil Patris Archiep Eborum pro contumaciis suis ratione contractus in civitate nostra Eborum habit ut dicebat tanquam excom claves Ecclesiae contemnent per corp suum secundum consuetud Augliae per te justic praecepimus donec c. esset satisfact eid Archiepiscopo ad satisfaciendum Deo sanctae ecclesiae sufficientem exposuit cautionem per quod eidem Archiepiscopus offic Archdiac London mutuae vicissitudin obtentu scripsit ut ipsum absolvat ab excom senten memorata sicut idem Archiepiscopus per Literas suas Patentes nob significavit Tibi praecipimus quod praed Thom cum tibi constare poterit ipsum ab excom praedict per praedict Official absolvi à Prison qua detinetur si ea occasione non alia detineat in eadem sine dilatione deliberari fac And yet it cannot be said that although the King recited in his writ that the Archbishop had signified unto him that he had written unto the Officiall of the Archdeacon that the King said that the Archbishop had written for he doth not affirm so much precisely but onely referreth himself unto the Certificate of the Archbishop Plowden 122 Buckley and Rivers case it is put that if a man will bring an action of debt upon an obligation and declare that it appears by the obligation that the defendant stood bound to the plaintiffe in twenty pounds the which he hath not paid this declaration is not good insomuch as it is not alledged by matter in fact that he was bound unto him in twenty pound but the deed is alledged by recitall onely 21. Ed. 4.43 Plowden Com 126. 143. Browning and Beestons case The Abbot of Waltham being appointed collector of a Disme granted unto the King in discharge of himself in the Exchequer pleadeth Quo inter recordat Ter Pasc. anno 25. domini Regis Edvardi 1. inter alia continetur quod R. 2. had granted unto the predecessors of the said Abbot that he nor any of his successours should be any collectors of any dismes to be granted afterwards and it was adjudged that this plea was ill For the saying it was contained among the Records it is no precise affirmation that the King had granted to his predecessors that they should be discharged of the collecting any dismes but it is onely an allegation by way of recitall and not by precise affirmation the plea may not be good 2 3 Mar. Dier 117. 118. the plaintiffes reply in barre of all pleadeth that Iohn Abbot of W. was seised of his lands in right of his Church and so seised by the assent of the tenant by indenture 14 Hen. 4. testat quod praedict Abbat convent demiserunt tradiderunt unto the plaintiffe and ruled that this form of pleading was ill insomuch as it was not alledged by precise affirmation quod demiserunt sed indentura testatur quod demiserunt which is not sufficient insomuch as it is onely an allegation by way of recitall that the Indenture doth witnesse and the same Indenture may witnesse so much and yet not be a demise And if in pleading there must be direct affirmation of the matter alledged then à fortiore in a return which must be more precise then in pleading and so by all the cases I have formerly touched it appeareth that this return is no expresse affirmation of the keeper of the Gate-house that Sir Iohn Corbet is detained in prison by the speciall commandment of the King but onely an affirmation of the Lords of the Councell who had signified unto him that his detainment in prison was by speciall command of the King The return which ought to be certain and punctuall and affirmative
till his pleasure be first known Thus did the Lord Chief Justice Coke in Raynards Case They say this would have been done if the King had not written but why then was the Letter read and published and kept and why was the Town Clark sent carefully to enquire because the Letter so directed whether these men offered for bayl were subsedy men the Letter sheweth also that Beckwith was committed for suspition of being acquainted with the Gun-Pouder-Treason but no proof being produced the King left him to be bayled The Earle of WARVVICKS speech 21. April 1628. MY Lords I will observe something out of the Law wherein this liberty of the Subjects Person is founded and some things out of Presidents which have been alleadged For the Law of Magna Charta and the rest concerning these points they are acknowledged by all to be of force and that they were to secure the Subjects from wrongfnll imprisonment as well or rather more concerning the King then the Subject why then besides the grand Charter and those 6. other Acts of Parliament in the very point we know that Magna Charta hath been at least 30. times confirmed so that upon the matter we have 6. or 7. and thereby Acts of Parliament to confirm this liberty although it was made a matter of derision the other day in this House One is that of 36. E. 3. No. 9. and another in the same year No. 20. not printed but yet as good as those that are and that of 42. E. 3. cap. 3. so express in the point especially the Petition of the Commons that year which was read by M r. Littleton with the Kings answer so full and free from all exception to which I refer your Lordships that I know not have any thing in the World can be more plain and therefore if in Parliament ye should make any doubt of that which is so fully confirmed in Parliament and in case so clear go about by new glosses to alter the old and good Law we shall not onely forsake the steps of our Ancestors who in Cases of small importance would answer nolumus mutare leges Angliae but we shall yield up and betray our right in the greatest inheritance the Subjects of England hath and that is the Laws of England and truely I wonder how any man can admit of such a gloss upon the plain Text as should overthrow the force of the Law for whereas the Law of Magna Charta is that no Free-man shall be imprisoned but by lawfull judgement of his Peers or the Law of the Land the King hath power to commit without Cause which is a sence not onely expresly contrary to other Acts of Parliament and those especially formerly cited but against Common sence For Mr. Attorney confesseth this Law concerns the King why then where the Law saith the King shall not commit but by the Law of the Land the meaning must be as M r. Attorney would have it that the King must not commit but at his own pleasure and shall we think that our Ancestors were so foolish to hazard their Persons Estates and labour so much to get a Law and to have it 30. times confirmed that the King might not commit his Subjects but at his own pleasure and if he did commit any of his Subjects without a Cause shewen then he must lie during pleasure then which nothing can be imagined more ridiculous and contrary to true reason For the Presidents I observe that there hath been many shewen by which it appears to me evidently that such as have been committed by the Kings Councel they have been delivered upon Habeas Corpus and that constantly It is true that some Presidents were brought on the Kings part that when some of these persons desired to be delivered by Habeas Corpus the King or his Councel signified his Majesties pleasure that they should be delivered or the Kings Attorney hath come into the Court and related the Kings Command but this seems to make for the Subject For that being in his Majesties power to deliver them who by his special Command were imprisoned May not we well think that his Majesty would rather at that time have stayed their deliverance by Law then furthered it with his Letters and made the Prisoners rather beholding to him for his grace and mercy then to the Judges for Justice had not his Majesty known that at that time they ought to have been delivered by Law I think no man would imagine a wise King would have suffered his Grace and Prerogative if any such Prerogative were to be so continually questioned and his Majesty and his Councel so far from commanding the Judges not to proceed to deliver the Prisoner by them committed without Cause shewn as that on the other side which is all the force of these Presidents the King and the Councel signified to the Judges that they should proceed to deliver the parties certainly if the King had challenged any such Prerogative that a Person committed without any cause shewn ought not to be delivered by the Judges without his consent it would have appeared by one President or other amonst all that have been produced that his Majesty would have made some claim to such a Prerogative But it appears to the contrary that in many of these cases the King or his Councel did never interpose and where they did it was alwayes in affirmation and incouragement to that Court to proceed And besides the writing of Letters from his Majesty to the Judges to do Justice to his Majesties Subjects may with as good reason be interpreted that without those Letters they might not do Justice also the King signified his willingness that such such Persons which were committed by him should be delivered therefore they could not be delivered without it which is a strange reason So that findeing the Laws so full so many and so plain in the point and findeing that when ever any were committed without cause shewn brought their Habeas Corpus they were delivered and no Command ever given to the contrary or claim made on the Kings part to any such Prerogative I may safely conclude as the House of Commons have done and if any one President or two of late can be shewn that the Judges have not delivered the Prisoners so committed I think it is their fault and to be enquired of but contrary it seems to me to be an undoubted Liberty of the Subject that if he be committed without cause or without cause shewn yet he may have some speedy course to bring himself to Trial either to justifie his own innocencie or to receive punishment according to his fault for God forbid that an innocent man by the Laws of England should be put in worse case then the most grievous Malefactors are which must needs be if this should be that if a cause be shewed he may have his Trial but if none he must lie and pine in Prison during pleasure
House saith he took Mr. Rolles goods by virtue of a Commission under the great Seal and other warrants remaining in the hands of Sir Iohn Elliot That he knew Mr. Rolles to be a Parliament man and Mr. Rolles demanded his Priviledge but he did understand his Priviledge to extend onely to his person not to his goods Mr. Dawes further saith he took those goods for such duties as were due in King Iames his time and that the King sent for him on Saturday last and commanded him to make no other answer Mr. Carmarthen another Customer called in saith he knew Mr. Rolles to be a Parliament man and that he told Mr. Rolles he did not find any Parliament man exempted in their Commission and if all the bodie of this House were in him he would not deliver the goods if he said he said he would not it was because he could not Mr. Wansforth That the delinquence of these men may be declined for the present and that we may first go to the King by way of Remonstrance considering the matter from whence this did arise If it were a single Priviledge it were easily determined Mr. Selden If there be any near the King that mispresents our actions let the curse light on them and not on us And believe it it is high time to right our selves and untill we vindicate our selves in this it will be in vain to sit here Sir Nathaniel Ritch moveth not to proceed in this untill it be by a select Committee considered in regard the King himself gave order to stay these goods though the goods of a Parliament man Sir Iohn Eliot The heart-bloud of the Libertie of the Common-wealth receiveth its life from the Priviledge of this House Resolved by question that this shall be presently taken into consideration And being conceived a business of great consequence It is Ordered That the House shall be dissolved into a Committee for the more freedome of debate Mr. Harbert in the Chair of that Committee Friday 20. A Petition of Complaint of a Conspiracie against a mans life by the Lord Deputie of Ireland and others to get the estate of the Petitioner to their own use Which is referred to the Committee for Justice Sir Iohn Worsnam another of the Customers called in saith he was commanded from the King that the goods were taken for duties and no more that he was sought to to Farm the Customs and told the King being sent for to him that he was not willing to deal therein untill the Parliament had granted the same Mr. Selden Conceiveth the case of these three Customers do differ in the degrees of their offences First for Sir Iohn Worsnam whatever he saith here he hath often confessed the goods were taken for Tonnage and Poundage so that as he broke the Priviledge in taking the goods so likewise his swearing one thing and the contrarie plainly appeareth upon proof and his own confession Mr. Dawes his cause differeth onely in this Sir Iohn Worsnam is a Patentee and Dawes onely a sharer Mr. Carmarthens cause differeth in saying if all the Parliament were in him he would not deliver his goods Ordered that Worsnams case shall be first decided And first the point is Whether by the Lease Sir Iohn Worsnam having seised the goods hath interest or no or whether he be onely an accounter to the King or not Mr. Glanvile Here is a sum of money advanced a Lease granted for certain years a certain Rent reserved and though there be a covenant to these men that if there be less it shall be abated yet that cannot take away their interest The substance of the offences made by the Customers in the Exchequer is that the goods of the Merchants seised by them and remaining in the Kings Store-house were seised onely for duties to the King mentioned in a Commission under the Kings signet and that themselves the Customers had no interest nor pretence of interest Saturday 21. A Petition by Mr. Thomas Symons in further complaint of the Customers and the Two shillings Six pence upon the Currants granted to the Lord Arrundell which is referred to the Committee for Merchants Sir Robert Pye saith The Lord of Arrundell hath delivered in his Pattent to the King two months since At the Committee for Merchants MAster Littleton argued whether a Member of the House hath his goods priviledged upon a Prorogation being seised for the King All Priviledge is allowed for the good of the Common-wealth and the Parliament Priviledge is above any other the Parliament onely can decide Priviledge of Parliament not any other Judge or Court whatsoever That a man may not distrain for rem in Parliament time but for all arrears after the Parliament he may distrain he is not to be imployed in any action personal nor his goods to be seised in the Exchequer A Record and Act of Parliament by Petition that because the servant of a Member of the Parliament is in the Kings Royal protection that it might be High Treason to kill a Parliament man and the King answered affirmatively which made it a Law And for the Judges to determin priviledge of Parliament were to supersede the Law and make it void For the Prorogation the Priviledge stands good untill the day of Prorogation notwithstanding a Proclamation of a new Prorogation That the King is never so high in point of State as in the Parliament Citeth the case of Sir Robert Howard in High Commission All Priviledges unless in Felonie Treason or breach of Peace Sir Robert Phillips Thus you see how fast the Prerogative of the King doth trench on the Libertie of the Subject and how hardly recovered Citeth many Presidents wherein the goods of a Member of the Parliament were Priviledged from seizure in the Exchequer In 19 Eliz. it was resolved in Parliament that 20 days before and 20 days after was the time of Priviledge Chancellor of the Dutchie That in this debate we may tie our selves to point of Law and Authoritie not to point of Reason And conceiveth that no Priviledge lieth against the King in point of his duties Sir Francis Seymour I desire it may first be debated Whether this case doth concern the King or no for I conceive these Customers have not made good that there was any right here is onely art used to entitle the King I conceive it a high offence for any man to lay the scandal upon the King for every project Mr. Glanveil Here is a cunning Project in the Exchequer to entitle the King a meer cunning Project and an offence of a high nature to shelter their projects under the Command of the Crown Secretarie Cook The point in question is not the right of the Subject but the right of Parliament Priviledge and that in the case of Mr. Rolles and this is onely now in question Sir Iohn Strangewaies I know no reason why we should draw a question upon our selves which we need not especially between the King and us
the Speaker Iune 6. pag. 203 The Kings Speeches Iune 7 and the Petition of Right read and granted pag. 204 The motions of the lower House to the Higher ibid. Sir Thomas Wentworths speech pag. 205 The Kings message to the lower House by Sir Humphry May Iune 10. pag. 206 Eight particulars voted in the House of commons against the Duke of Buckingham Iune 11 ibid. The first Remonstrance of the House of Commons ibid. A Schedule of the shipping of this Kingdome which have been taken by the Enemy and lost at sea within the space of three yeares last past pag. 215 The Kings Answer to the Remonstrance Iune 17. p. 217 The Kings speech at the end of the Session Iune 26. ibid. The second Remonstrance pag. 218 A Letter which was found amongst some Jesuits that were lately taken at London and addressed to the Father Rector at Bruxills pag. 220 Motives to induce the Knights Citizens and Burgesses of the Commons house of Parliament to petition his Majesty for the revoking and abolishing of the degrees of Baronets lately erected by his Highnesses letters pattents pag. 224 The examination of Andrew le Brun Captain of the Mary of Rochell pag. 226 Articles against Melvin p. 227 A privie Seal for the transporting of horses Ianuary 30 tertio Caroli ibid. The Commission to the Lords and others of the Privy Councell concerning the present raising of Money pag. 228 Articles to be propounded to the Captains and Masters as well English as French touching the service in hand at Rochell May 4. 1628. p. 230 The Answer to the Articles propounded by the Lord generall and the rest of the Councell of warre pag. 231. A TABLE of the transactions of the second Session of the Parliament begun Ian. 20. 1628. M r Selden's report concerning the Petition of Right Ianuary 21 pag. 235. M r Pymms motion ibid. Sir Iohn Elliots reply ibid. M r Seldens speech concerning the Petition of Right p. 236. M r Norton the Kings Printer brought to the barre ibid. Sir Iohn Elliot ibid. Sir Robert Phillips's speech Ianuary 22. ibid. M r Littleton pag. 237 Sir Iohn Elliot ibid. M r Selden concerning the printing of the Petition of Right ibid. His Majesties message Ian. 23 24. pag. 238 M r Walter Ian. 26 ibid. M r Secretary Coke ibid. Sir Francis Beamor ibid. M r Kirton ibid. M r Shâ—rland pag. 239 Sir Nath. Rich Ian. 27 ibid. The Kings Message by Secretary Coke ibid. Sir Walter Earl pag. 240 M r Corrington ibid. M r Pymme ibid. Another Message from his Majesty Ianuary 28 deliver'd by Secretary Coke ibid. M r Long 's Reply pag. 241 Sir Thomas Edmonds ibid. M r Corrington ibid. Sir Iohn Elliot ibid. Secretary Coke's speech Feb. 3 pag. 242 Sir Iohn Elliot ibid. M r Speaker pag. 243 Secretary Coke ibid. Sir Hum. May ibid. Sir Iohn Elliot at the Committee for Religion ibid. A Bill that no Clergy man be in Commission for Peace Feb. 4 ibid. M r Selden pag. 244 A Petition against D r. Cosens ibid. Sir Eubal Thelwall ibid. M r Shervile ibid. M r Rouse ibid. M r Kirton ibid. Sir Robert Phillips pag. 245 Sir Edward Giles ibid. Sir Iames Perot ibid. M r Pymme ibid. Sir Robert Phillips ibid. A Petition about an imposition upon mault Febr. 5 p. 246 M r Long ibid. M r Ogle ibid. Secretary Coke ibid. Sir Robert Phillips ibid. A Petition against Whittington a Papist Febr. 6. ibid. M r Shervile pag. 247 S r Nath. Rich ibid. S r O. Roberts upon an Affidavit against D r Cosens ibid. S r Iohn Elliot ibid. M r Kirton Febr. 7. ibid. S r Walter Earl ibid. S r Robert Phillips ibid. M r Selden pag. 249 S r Robert Phillips ibid. M r Pymme ibid. M r Shervile ibid. S r Iohn Stanhope ibid. S r Nath. Rich ibid. S r Iohn Elliot ibid. S r Daniel Norton pag. 250 S r Robert Phillips ibid. The Chancellor of the Dutchy ibid. S r Thomas Heale ibid. M r Valentine ibid. Transactions concerning Cosens Bishop Mountague c. Febr. 9. ibid. S r Robert Phillips February 10 pag. 251 M r Chancellor of the Dutchy pag. 252 M r Selden ibid. S r Francis Seymour ibid. M r Selden pag. 253 M r Kirton ibid. M r Littleton ibid. S r Benjamin Ruddier ibid. M r Selden Febr. 11 ibid. A Petition of the booksellers and printers at the Committee for Religion pag. 254 M r Shervile's Report concerning D r Sibthorpe Cosens and Manwaring ibid. Sir Walter Earl pag. 255 A Committee for tonnage and poundage Febr. 12 Shervile in the Chair ibid. S r Iohn Elliot ibid. A Petition against Burges a Priest Febr. 13 pag. 257 S r Iohn Elliot ibid. Sir Will. Bawstrod at a Committee for Religion ibid. Sir Richard Gravenor pag. 258 Secretary Coke ibid. A Complaint against the Lord Lambert Febr. 14 pag. 259 M r Kirton ibid. S r Thomas Hobbie at a Committee for Religion pag. 260 M r Stroud at a Committee for Religion Febr. 16 p. 261 Another petition preferred by M r Chambers Febr. 17. p. 262 A publick Fast Febr. 18 p. 263 M r Dawes call'd in question for taking M r Rolls his goods Febr. 19 ibid. A petition of Complaint against the Lord deputy of Ireland Febr. 20 ibid. A petition by M r Symons in complaint of the Customers Febr. 21 pag. 264 The Committee for Merchants ibid. The protestation of the Commons in Parliament March 2 1628 pag. 267 The Kings speech in the House of Parliament March 10. to dissolve it pag. 268 His Majesties letter and queres concerning ship money and the answer thereunto Pag. 10. lin 18. for euge ingredi read yet coge ingredi The KINGS Speech 17. March 1627. My Lords and Gentlemen THese Times are for action wherefore for examples sake I meane not to spend much time in words expecting accordingly that your as I hope good resolutions will be speedy not spending time unnecessarily or that I may better say dangerously for tedious Consultations at this conjuncture of time are as hurtfull as ill Resolutions I am sure you now expect from me both to know the cause of your meeting and what to resolve on yet I think there is none here but knowes that common Danger is the cause of this Parliament and that Supply at this time is the chief end of it so that I need but point to you what to do I will use but few perswasions for if to maintaine your owne advises and as now the case stands by the following thereof the true Religion Lawes and Liberties of this State and the just defence of our true Friends and Allies be not sufficient then no eloquence of Men or Angels will prevaile Only let me remember you that my duty most of all and every one of yours according to his degree is to seek the maintenance of this Church and Common-wealth and certainly there never was a time in which this duty was more necessarily required then now I therefore
or advantage to them For impeditioris linguae sum and the poore experience I have of that royall Assembly is so ill ballanced with true judgement that every gust and wave hath power on me whereby I shall not onely suffer in my own particular but which I apprehend with much more care and sorrow prejudice their common Interest Wherefore dread and dear Sovereign as low as the lowest step of your royal throne I humbly bend appealing to your great sovereign judgement for my discharge from this so unequall a burthen imposed on me most humbly and earnestly beseeching your most excellent Majestie for the honour of that great Councell and the better digestion of publick Services there and withall to avert so ill an Omen as the choice of Me in the beginning of a Parliament ordained I hope for the joy of our own and the envy of other Nations that by your gracious Command the House may re-consult and settle their better thoughts on some more worthy their election and your Majestie 's approbation The Lord Keeper Coventry's Reply M r. Speaker HIs Majestie with a most gracious care and princely attendance hath heard your humble excuse he knowes well the importance of your place but your ability to discharge it he approves and commends the election of the House of Commons and therein receives the more content because they have followed the light taken from himself who formerly made choice of you to serve in a place of Trust both about himself and his royall Consort The Omen cannot be ill and the People so readily follow him whom God hath ordained to go in and out before them And therefore knowing your tackling to be strong and finding your saile moderate and not over-born his Majestie doth doubt neither gust nor wave to endanger your passage But since you are duely chosen his Majestie counsells and commands that unto your humility you adde resolution and courage they stand well together and being well joyned they will arme all your abilities to that great Imployment of service to your King and Countrie which as the Commons by their uniforme voice have put upon you so his Majestie by his royall approbation doth girt unto you and settle you Speaker The Speaker Sir John Finches Reply IT is now no time nor manners longer to dispute with my Lord the King but with all joy of heart and alacrity humbly and thankfully to meet so great a favour from the best of Masters and the best of Men. Therefore first I lift up my heart to him that sits on the Throne of heaven per quem Principes imperant Potentes decernunt justitiam humbly begging at his hands that made the tongue to give me speech and that framed the heart of man to give me understanding for I am but as Clay in the hands of the Potter and he will mould me for honour or dishonour as best seemes good unto him Next I bow my knees unto your most excellent Majestie in all humble and hearty acknowledgement of this and many other your great and gracious Favours The truth of mine heart full of zeale and duty to your Majestie and the publike as any mans quits me from all feare of running into wilfull and pregnant errours and your Majestie 's great goodnesse of which I have been so large a partaker gives me strong assurance that having by your gracious beames drawn me up from earth and obscurity you will so uphold me by a benigne and gracious interpretation of all my words and actions that I fall not down again like a crude and imperfect vapour but consome the remainder of my dayes in the zeal of your Majestie 's service This great and glorious Assembly made perfect by your royall presence like a curious Perspective the more I behold it with the more joy and comfort I finde a lively representation of that true happinesse which under your Majestie 's gracious government we all enjoy A better tongue were fitter to expresse it but a rich Stone retaines his value though ill set Here in the fulnesse and height of your Glorie like the Sun in the exaltation of his Orbe sits your most excellent Majestie the sovereigne Monarch of this famous Isle in a Throne made glorious by a long succession of many and great Princes A meditation worthy our better thoughts that we live neither enthralled to the fury of the giddy-headed multitude nor yet to the distracted wills of many Masters but under the command of a King the stay and strength of a People one as Homer saith well of a King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not to be laid in common ballance with other men for Kings know no other Tenure but God's service and their value it is onely tried at his Beam whence the Poets said the Parents of the first Kings were Coelum Terra Divine institution and Humane approbation Besides that it is a Sovereigntie also hereditarie which makes the Common-wealth the King's care as that which is the King 's own Patrimony and the inheritance of his Children when elective Monarchies quickly runne to ruine and are commonly made poor by the enriching of several Families On your right hand are the reverend religious and learned Prelates the Lights of the Church fit to be set in golden Candlesticks and not made contemptible by Paritie or Povertie lively Idea's of that blessing above the rest which by God's great goodnesse and your Majestie 's great pietie this Realme enjoyes the libertie of the Gospell and the free profession of God's true Religion Your Majestie passed the fierie tryall in Spaine and gave us then assurance that your faith was built on that rock against which the gates of hell shall never prevaile Since your coming to the Crowne by your royall Edict you have banished those Incendiaries of Rome the Priests and Iesuites enemies to our Church and State so as now they are either gone or lurk in corners like the sonnes of darknesse You have given life to the Lawes against Recusants and by your own exemplarie pietie have drawn more then you have compelled to come to Church Euge ingredi ut impleatur domus mea was his command that made the great Feast and is the duty of Magistrates And certainly dread Sovereigne true Religion will ever be a target to them that are a buckler to it No cement so strong to hold your Subjects hearts together in their true obedience Our Religion never bred a Clement or a Ravillack and that execrable Villany never to be forgotten here when all of us horresco referens in an instant should have been turned into ashes and those scattered in the winde was a Monster could never have been ingendred but by the Divel or the Iesuites On your left hand sit your Nobles the Lights of Honour full of courage and magnanimitie yet in right distance between Crown and People neither over-shadowing the one or oppressing the other Before your Throne like the twelve Lyons under Solomon's
Throne sit the Lights of Justice your grave Iudges and Sages of the Law learned and just as many Ages have known and learning justice by your example Our Lawes as excellent as they are I am sure no humane Lawes excell them nor could so well suite with the constitution of this People were they in the power of corrupt or ignorant men I know not which were worse for one will perhaps oftner erre then the other bribe Justice could never keep her right chanel nor runne cleare as in your Majestie 's reigne it ever hath I must not forget the other Lights the Knights Citizens and Burgesses the Representative of their Estate who although they move lower and at more distance from your royall Person yet I am confident will ever be found constant to the Poles of Love and Loyaltie 'T is a gracious Favour of your Majestie and our former Kings I have often thought on that when both these Houses are humble suitors for any thing they are never denyed Le Roy s'aviserà The King will advise of it is the greatest denyall And I assure my self your Majestie shall finde all your Subjects so full of dutie to your Crown and of true and loyall affection to your royall Person that you shall never have cause to think your gracious Favours ill bestowed on them The Union of Hearts Sir is a greatnesse beyond that of the Kingdome to which you are Heire Et penitus toto divisos orbe Britannos it is a Name of advantage to this Island if the Division be not amongst our selves which the God of Unitie for his mercies sake forbid and so knit our Hearts in love one to another and all of us in duty and loyalty to your most excellent Majestie that this renowned Island perish not by our Distractions but may ever flourish and be like Ierusalem the Citie of God where his Name may be for ever honoured Great and glorious have been the Actions of your royal Predecessours yet greater remaine for your Majestie and most of theirs attend you for their perfection The first Christian King of Europe the first that abated the swelling pride of Rome by banishing his usurped power and God's true Vice-gerent the first that established the true Religion now profest were all Kings of England and the last a young one Queen Elizabeth was a woman yet Spaine hath cause to remember her the Protestants of France and the Low-Countries will never forget her And were Henry the Great alive he would say That in requitall of the love of this Kingdome shewed him he hath sent us one of his owne Loynes your royall Consort our most gracious Queen to propagate these blessings to us and our posteritie for ever Your royall Father of ever blessed and famous memorie had a Reigne like Solomon's for Religion no man knew more a lustre or advantage to him this Age shall deliver it to the next and all Ages shall see it in his Kingly Workes But while under his glorious Reigne we abode in peace and plenty our hands had forgot to warre and our fingers to fight till at last by your Princely mediation upon the humble suite of both these Houses the two Treaties were dissolved and a foundation laid for your Majestie to restore us to our antient and Military honour which I doubt not will quickly be Eritis sicut Dii was the Serpent's Counsell and ruined Mankinde nor is it fit for private men much lesse for me to search into the Counsells or Actions of Kings Onely Sir give me leave from an heart full of zeale to your glorie and greatnesse to say to your Majestie the Times require you Religion calls upon you to goe on with that Kingly Courage you have begune till the state of Christendome be settled in the right Balance again We see how the Eagle spreads his wings in Germany reaching with his talons as farre as the Sound and Baltick sea Denmark and Sweden in danger of utter ruine by seizing the Electorates the choice of the Empire invested in a manner solely in the House of Austria Our Religion in France and every where never so neare a period And we know who it is for whom all this works he of whom the boast is made Allà qui Monarqui nasciendo d'el monendo who by the ruine of us and our Religion will make a new Zodiack and draw an Ecliptick line through the East and West Indies But he that sits on high will in his good time laugh them to scorne and as that wife Woman said to King David God will make to my Lord the King a sure house if my Lord shall continue to fight the battels of Iehovah and let all England say Amen I have presumed too farre upon your royall Patience and therefore I will conclude with a few words for them that sent me who are humble suitours to your excellent Majestie First for our better attending the publick and important services that our selves and our necessary Attendants may be free both in our persons and goods from all arrests and troubles according to our ancient priviledge and immunities Next that since that in all great Councells where difference of opinion is truth is best discovered by free debates your Majestie according to our like ancient use and priviledge will be graciously pleased to allow us liberty and freedome of speech and I assure my self we shall not passe the latitude of duty and discretion That upon all occurrences of moment fit for resort to your owne person your Majestie upon humble suit at your best leisure will vouchsafe us accesse to your royall person And lastly that all our proceedings being lodged in your royall heart with belief of our zeal and loyalty we may reap the fruits of it by your Majestie 's gracious and favourable interpretation One word more I humbly begg for myself That though it be the beginning of a Parliament I may now and ever enjoy your Majestie 's most gracious and generall free Pardon The Lord Keeper Coventry's second Reply M r. Speaker HIs Majestie with no lesse content then attention hath heard your learned Discourse he observes your beginning with his gracious incouragement and advice not forsaking your humble modestie but adding to it thankfulnesse alacrity and joy of heart a just and right temper He observes you derive these aright first from the Throne in heaven he lookes thither with you and joynes in prayer that both you and all this Assemblie by that Divine hand and power be moulded and procured for the honour safety and good of the Church and Kingdome Next you apply your self to the Throne on earth his Majestie doth graciously accept your protestations of the truth of your heart the fulnesse of your zeale and duty to his Majestie and the Publick he believes it and that not in you alone but in all this Assembly so that you are secure not onely from wilfull and pregnant errours but from doubt of sinister interpretation My Lord the
But yet our Eden in this garden of the Common-wealth as there are the flowers of the Sun which are so glorious that they are to be handled onely by royall Majestie so are there also some Daisies and wholsome herbs which every common hand that lives and labours in this garden may pick and gather up and take comfort and repose in them Amongst all which this oculus diei this bona libertas is one and the cheif one Thus much in all humblenesse I presume to speak for the occasion I will now descend to the Question wherein I hold with all dutifull submission to better Iudgments that these Acts of power in imprisoning and confining of his Majesties Subjects in such manner without any declaration of the cause are against the fundamentall Lawes and Liberties of this Kingdome And for these reasons thus briefly drawn I conclude 1. The first from the great favour which the Law doth give unto and the great care which it hath ever taken of the liberty and safety of this Kingdome I should not need to take the question in pieces nor handle it in parts dividedly but as one intire because I hold no other difference between imprisonment and confinement then only this that one hath a lesse and streighter the other a greater and larger Prison And this word Confinement not being to be found in any one case of our law if therefore it is become the language of State it is too difficult for me to define To proceed therefore in maintenace of my first reason I find our Law doth so much favour the Subjects liberty of his Person that the body of a man was not liable to be arrested or imprisoned for any other cause at the Common Law but for force and things done against the peace For the Common Law being the preserver of the land so abhorreth force that those that commit it she accompts her capitall enemies therefore did subject their bodies to imprisonment But by the statute of Marlebridge Cap. 24. which was made 35. Hen. 3. who was the eighth King from the Conquest because Bailiffs would not render accounts to their Lords it was enacted that their bodies should be attached And afterwards by the statute 23. Edw. 3.17 who was the 11 King after the Conquest because men made no Conscience to pay their debts it was enacted that their bodies should likewise be attached But before those statutes no many body was subject to be taken or imprisoned otherwise then as aforesaid Whereby it is evident how much the Common Law favoured the Liberty of the Subject and protected his body form imprisonment I will inforce the reason futher by a Rule in law and some cases in Law upon that Rule The Rule is this That Corporalis injuria non recipit aestimationem fuluro So as if the question be not for a wrong done to the person the Law will not compell him to sustain it and afterwards except a remedy for the Law holds no damage a sufficient recompence for a wrong which is corporall The cases in Law to prove this rule shall be these If one menace me in my goods or that he will burn the evidence of my land which he hath in his custody unlesse I make unto him a Bond there I cannot avoyd the Bond by pleading of this menace But if he restrains my person or threatens me with battery or with burning my house which is a protection for my person or with burning an instrument of manumission which is an evidence of my enfranchisement upon these menaces these or dares I shall avoid the bond by plea. So if a Trespassour drives my beast over another Mans ground and I pursue to rescue it there I am a Trespassour to him on whose ground I am But if a man assault my person and I for my safety fly over into another man's ground there I am no Trespassour to him for Quod quis in tuitione sui corporis fecerit jure id fecisse existimatur Nay which is more the Common Law did favour the Liberty not only of Freemen but even of the persons of Bondmen and Villains who haue no right of propriety either in lands or goods as Freemen have And therefore by the Law the Lord could not maim his Villain nay if the Lord commanded another to beat his Villain and he did it the Villain should have his action of Battery against him for it If the Lord made a Lease for yeares to his Villain if he did plead with his Villain if he tendred his Villain to be Champion for him in a Writt of Right any of those acts and many other which I omit were in Law infranchisements and made these Villains Freemen Nay in a suite brought against one if he by Attorney will pleade that he is a Villain the Law is so carefull of Freedome that it dissallowes this plea by Attorny but he must doe it propria persona because it binds his Posterity and bloud to the Villains also And thus much in the generall for my first reason 2. My next reason is drawn by an Argument à majori ad minus I frame it thus If the King have no absolute power over our Lands or Goods then à fortiori not over our Persons to imprison them without declaring the cause for our Persons are much more worth then either Lands or Goods which is proved by what I have said already and Christ himself makes it clear where he saith An non est corpus supra vestimentum Is not the Body more worth then Raiment where the Canonists say that Vestimentum comprehendeth all outward things which are not in the same degree with that which is corporall And our Law maketh it also plain for if a Villain purchase Frank-land this maketh it Villain-land according to the nature of his person but it holds not è converso Frank-land shall not free the person Now that the King hath no absolute power either over our Lands or Goods I will onely at this time but put a case or two for without proof of the Premisses my Conclusion would not follow First for Land The King cannot by his Letters pattents make the son of an Alien heir to his father nor to any other for he cannot disinherit the right heir saith the book nor do no prejudice to the Lord of his Escheat The King by his Prerogative shall pay no toll for things bought in Fairs and Markets but a custome for paying toll to go over the soil and free-holds of another shall bind the King for this toucheth the inheritance of the Subject and therefore the King shall not have so much as a way over his lands without paying and if not a way then certainly not the land it self Next for Goods If a man hath a Jewell in gage for ten pound c. and is attainted for Treason the King shall not have this Jewell if he payes not the ten pound So if Cattel be distreined and the owner of them
or otherwise restrained though it be by the command of the King Privy Councel or any other he praying the same 3. If a Free-man be committed or detained in prison or otherwise restrained by the command of the King Privy Councel or any other unlesse the cause of the commitment detainment or restraint be expressed for which by Law he ought to be committed detained or restrained and the same be returned upon habeas corpus granted for the said party that then he ought to be delivered or bailed Sir John Coke his Speech at a Conference between the Lords and Commons about the Petition to the King against Recusants My Lords WE are sent to attend this Conference from the Knights Citizens and Burgesses of the House of Commons And first we acknowledge all due honour both unto the reverend Fathers of the Church and to you noble Lords in that ye have shined before us as worthy lights in the encouragement and maintainance of true Religion It is the true support of all your dignities and honours And this forwardnesse of yours is the more remarkable when that viperous generation as your Lordships justly stile them doe at ease with tooth and nail assay to rend the bowels of their Mother For give me leave to tell you what I know that they now both vaunt at home and write to their friends abroad they hope all will be well and doubt not to prevail and to win ground upon us And a little to awake the zeal and care of our learned and grave Fathers it is fit that they take notice of that Hierarchie which is already established in competition with their Lordships for they have a Bishop consecrated by the Pope this Bishop hath his subalternate Officers of all kinds as Vicars-generall Arch-deacons rurall Deans Apparatours and such like Neither are those nominall or titular Officers alone but they all execute their Jurisdictions and make their ordinary Visitations through the Kingdome keep Courts and determine Ecclesiasticall causes and which is an argument of more consequence they keep ordinary intelligence by their Agents in Rome and hold correspondence with the Nuntioes and Cardinalls both at Bruxells and in France Neither are the Seculars alone grown to this height but the Regulars are more active and dangerous and have taken deep root they have already planted their Societies and Colledges of both Sexes they have setled Revenues Houses Libraries Vestments and all other necessary provisions to travell or stay at home nay even at this time they intend to hold a concurrent Assembly with this Parliament But now since his sacred Majesty hath extended his royall arm and since the Lords of his Councell have by their authority caused this nest of Wasps to be digged out of the earth and their Convocations to be scattered and since your Lordships joyn in courage and resolution at least to reduce this People to their lawfull restraint that they may doe no more hurt we conceive great hope and comfort that the almighty God will from henceforth prosper our endeavours both at home and abroad But now my Lords to come to the chief errand of this our meeting which is to make known to you the approbation of our House of that Petition to his Majesty wherein you were pleased to request our concurrence The House hath taken it into serious consideration and from the beginning to the end approve of every word and much commend your happy pen onely we are required to present unto you a few additions whereby we conceive the Petition may be made more agreable to the Statutes which are desired to be put in execution and to a former Petition granted by his Majesty recorded in both Houses confirmed under the Broad Seal of England and published in all the Courts of our ordinary Justice But these things we propound not as our Resolutions or as matters to raise debate or dispute but commend them only as our Advise and desire being ready notwithstanding to joyn with your Lordships in the Petition as now it is if your Lordships shall not find this reason to be of weight These additions were but few and were approved of by the Lords and inserted in the Petition the 29. March 1628. The Petition of both Houses to his Majesty concerning Recusants March 31. 1628. VVE your Majesties most loyall and obedient Subjects the Lords Spirituall and Temporall and Commons in Parliament assembled having to our singular comfort obtained your Majesties pious and gracious assent for a publick Fast to appease the wrath of almighty God kindled against us and to prevent those grievous Judgements which doe apparently presse upon us doe in all humility present unto your Sacred Majesty all possible thanks for the same And because the publick and visible Sins of the Kingdome are the undoubted Causes of those visible Evils that are fallen upon us amongst which sins as is apparent by the Word of God Idolatry and Superstition are the most hainous and crying sins to the end that we may constantly hope for the blessing of God to descend upon this our publick Humiliation by abandoning those sins which doe make a wall of separation betwixt God and us 1. We most humbly and ardently beg at the hands of your Sacred Majesty that your Majesty will be pleased to give continuall life and motion to all those Laws that stand in force against Iesuites Seminary Priests and all that have taken Orders by authority of the Sea of Rome by exacting a more due and serious execution of the same amongst which number those that have highly abused your Majesties Clemency by returning into the Kingdome after their Banishment contrary to your Highnesse expresse Proclamation we humbly desire may be left to the severity of your Laws without admitting any mediation or intercession for them and that such of your Majesties unsound and ill-affected Subjects as doe receive harbour or conceal any of that viperous generation may without delaies suffer such penalties and punishments as the Laws most justly impose upon them 2. That your Majesty would be pleased to command a secure and streight watch to be kept in and over your Majesties Ports and Havens and to commit the care and charge of searching of ships for this discovery and apprehension as well of Iesuits and Seminary Priests brought in as of children and young Students sent over beyond the Seas to suck in the poison of Rebellion and Superstition unto men of approved Fidelity and Religion and such as shall be convicted to have connived or combined in the bringing in of the one or conveying out of the other that the Lawes may passe upon them with speedy execution 3. That considering those dreadfull dangers never to be forgotten which did involve your Majesties Sacred Person and the whole representative Body of your Majesties Kingdome plotted and framed by the free and common accesse of Popish Recusants to the city of London and to your Majesties Court your Majesty would be graciously pleased to
in generall and to the grievous and insupportable vexation and detriment of many Countreys and persons in particular a new and heretofore almost unheard of way hath been invented and put in practise to lay Souldiers upon them scattered in Companies here and there even in the heart and bowels of this Kingdome and to compell many of your Majesties Subjects to receive and lodge them in their own houses and both themselves and others to contribute towards the maintenance of them to the exceeding great disservice of your Majesty to the generall terrour of all and utter undoing of many of your poor people Insomuch that we cannot sufficiently nor in any sort proportionable to the lively sense that we have of our miserie herein are we able to represent unto your Majesty the innumerable mischiefs and continuall vexations that by this meanes alone we do now suffer whereof we will not presume to trouble your sacred eares with particular instances Only most gracious Sovereign we beg leave to offer unto your gracious view and compassionate Consideration a few of them in generall First The service of almighty God is hereby greatly hindred the people in many places not daring to repair to the Churches least the Souldiers in the mean time should rifle their houses 2. The ancient and good government of the Countrey is hereby neglected and contemned 3. Your Officers of Justice in performance of their duties have been resisted and indangered 4. The rents and revenues of your Gentrie greatly and generally diminished Farmers to secure themselves from the Souldiers insolencie being by the clamours and solicitation of their fearfull and injured wives and children inforced to give up their wonted dwellings and to retire themselves into places of more secure habitation 5. Husbandmen that are as it were the hands of the Countrey corrupted by ill example of the Souldiers and incouraged to idle life give over work and rather seek to live idly at another mans charge then by their own labours 6. Tradesmen and Artificers almost discouraged being inforced to leave their trades and to imploy their time in preserving themselves and their families from violence and cruelty 7. Markets unfrequented and our wayes grown so dangerous that your people dare not passe to and fro upon their usuall occasions 8. Frequent robberies assaults batteries burglaries rapes rapines murthers barbarous cruelties and other most abominable vices and outrages are generally complained of from all parts where these Companies have been and had their abode few of which insolencies have been so much as questioned and fewer according to their demerits punished These and many other lamentable effects most dread and dear Sovereign have by this billetting of Souldiers fallen upon your loyall Subjects tending no lesse to the disservice of your Majesty then to their own impoverishing and destruction so that they are thereby exceedingly disabled to yield your Majesty those supplies for your urgent occasions which they heartily desire And yet they are further perplexed with apprehension of more approching dangers one in regard of your Subjects at home and the other from Enemies abroad In both which respects it seems to threaten no small Calamitie For the first the meaner sort of your people being exceeding poor whereof in many places be great multitudes and therefore in times of most settled and constant administration of Justice not easily ruled are most apt upon this occasion to cast off the reines of government and by joyning themselves with these disordred Souldiers are very likely to fall into mutinie and rebellion which in faithfull discharge of our duties we cannot forbear most humblie to present to your high and excellent Wisdome being prest with probable feares that some such mischief will shortly ensue if an effectuall and speedie course be not taken to remove out of the land or else otherwise to disband those unruly Companies For the second we do most humbly beseech your Majesty to take into your Princely consideration that many of these Companies besides their dissolute dispositions and carriages are such as do openly professe themselves to be Papists and therefore to be suspected that if occasion serve they will rather adhere to a forreign Enemy of that Religion then to your Majestie their liege Lord and Sovereign especially some of their Captaines and Commanders being as Popishlie affected as themselves and having served in the warres in the behalf of the King of Spain and the Arch-Dutchesse against your Majesties Allyes which of what pernicious consequence it may prove and how prejudiciall to the safety of all your Kingdome we humblie leave to your Majesties high and Princely Wisdome And now upon this and many more which might be alledged most weightie and important reasons grounded upon the maintenance of the worship and service of almightie God the continuance and advancement of your Majesties high honour and profit the preservation of the ancient and undoubted Liberties of your people and therein of Justice and Industrie and Valour which clearly concernes the glorie and happinesse of your Majestie and all your Subjects and the preventing of imminent calamities and ruine both of Church and Common-wealth we your Majesties most humble and loyall Subjects the Knights Citizens and Burgesses of your House of Commons in the name of all the Commonaltie of the Kingdome who are upon this occasion most miserable disconsolate and afflicted prostrate at the throne of your Grace and Justice do most humbly and ardently beg a present remove of this insupportable burthen and that your Majesty would be graciously pleased to secure us from the like pressure for time to come The nine Heads of the House of Commons to the Speaker 1. THat it is the ancient right of Parliament to dispose of matters there debated in their own method 2. That it is their ancient custome to consider of Grievances before matters of Supplie 3. That yet neverthelesse in this Parliament to expresse our affection to his Majesty contrarie to ordinarie proceedings we have proceeded in the Supply as farre as we could in that Committee 4. That we have been so farre from delaying that post-posing the common and pressing grievances we have given precedencie to the supply joyning with it only the fundamentall and vitall Liberties of the Kingdome that give substance to the Subjects 5. Further to expresse the fulnesse of our affections we have exceeded our order in that particular concerning the supplie which though later in proposition yet hath been first made readie for conclusion in the Committee 6. No person or Councell can be greater lovers of or more carefull to maintain the sacred Rights and Prerogatives of the Crown then we and we do conceive that the maintaining of the fundamentall Rights and Liberties of the Subject is an especiall meanes to establish the glory of a Monarch and that by it his Subjects are the better enabled to do him service which hath been the cause of many glorious victories wone by this Nation above other Kingdomes of larger
Loyalty may have such place in your Royall thoughts as to rest assured that all your Subjects will be ready to lay down their lives for the defence of your Sacred Person and this Kingdome Not going our selves into our Countreys this Easter we should think it a great happinesse to us and we know it would be a singular comfort and encouragement to them that sent us hither if we might but send them the newes of a gracious Answer from your Majesty in this particular which the reasons of the Petition we hope will move your most excellent Majesty graciously to vouchsafe us The King's Answer to the Petition concerning billetting of Souldiers 14 April 1628. M r Speaker and you Gentlemen WHen I sent you my last message I did not expect any Reply for I intended to hasten you not to find fault with you I told you at your first meeting that this time was not to be spent in words and I am sure it is lesse fit for disputes which if I had a desire to entertain M r Speaker's Preamble might give me ground enough The Question is not now what Libertie you have in disposing of matters handled in your House but rather what is fit to be done Therefore I hope you will follow my example in eschewing disputations and fall to your important businesse You make a protestation of your affections and zeal to my Prerogative grounded upon so good and just reasons that I must believe you But I look that you use me with the like charitie to believe what I have delivered more then once since your meeting which is That I am as forward as you for the preservation of your true Liberties yet let us not spend so much time in this that may hazzard both my Prerogative and your Liberties to our Enemies To be short go on speedily with your businesse without fear or more Apologies for time calls fast on you which will neither stay for me nor you Wherefore it is my dutie to presse you to hasten as knowing the necessity of it and yours to give credit to what I say as to him that sitteth at the Helme Sir Dudley Diggs his Introduction My Lords I Shall I hope auspiciously begin this Conference this day with an Observation out of Holy Story In the dayes of good King Iosiah when the Land was purged of Idolatry and the great men went about to repaire the House of God while money was sought for there was found a Book of the Law which had been neglected and afterwards being presented to the good King procured the blessing which your Lordships may read of in the Scriptures 2 Chro. cap. 34. 2 Kings cap. 22. My good Lords I am confident your Lordships will as cheerfully joyn with the Commons in acknowledgement of Gods great blessing in our good King Iosiah as the Knights Citizens and Burgesses of the Commons House by me their unworthy servant do thankfully remember your most religious and truly honourable invitation of them to the late Petition for clensing this Land from Popish Abominations which I may truly call a necessary and happy repairing of the House of God And to go on with the parallell while we the Commons out of our good affection were seeking for money we found I cannot say a book of the Law but many and those fundamentall points thereof neglected and broken which hath occasioned our desire of this Conference Wherein I am first commanded to shew unto your Lordships in generall that the Lawes of England are grounded on reason ancienter then bookes consisting much in unwritten Customes yet so full of Justice and true Equity that your most honourable Predecessours and Ancestours many times propugned them with a Nolumus Mutare and so ancient that from the Saxons daies notwithstanding the Injuries and Ruines of Time they have continued in most parts the same as may appear in old remaining Monuments of the Lawes of Ethelbert the first Christian King of Kent Ina King of the West-Saxones Offa of the Mercians In Bibliotheca Cottoniana 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 sayes to that end ut qui sub uno Rege sub una Lege regerentur Liber Lichfield And though the book of Lichfield speaking of the troublesome times of the Danes saies that then Ius sopitum erat in Regno Leges consuetudines sopitae sunt and prava voluntas vis violentia magis regnabant quam Iudicia vel Iustitia yet by the blessing of God a good King Edward commonly called S. Edward did awaken these Lawes Excitatas reparavit reparatas decoravit decoratas confirmavit Liber de Chartsey sive Registrum de Chartsey which confirmavit sheweth that good King Edward did not give those Lawes which William the Conquerour and all his Successours sithence that have sworn unto And here my Lords by many Cases frequent in our Modern Lawes strongly concurring with those of the ancient Saxon Kings I might if time were not precious demonstrate that our Lawes and Customes were the same I will only intreat your Lordships leave to tell you that as we have now even in those Saxon times they had their Courts Barons and Courts Leets and Sheriffs Courts by which as Tacitus saith of the Germans their Ancestours Iura reddebant per pagos vicos And I believe as we have now they had their Parliaments where new Lawes were made cum consensu Praelatorum Magnatum totius Communitatis or as another writes cum consilio Praelatorum Nobilium sapientum Laicorum I will adde nothing out of Glanvile that wrote in the time of Henry the second or Bracton that writ in the time of Henry the third only give me leave to cite that of Fortescue the learned Chancellour to Hen. 6. who writing of this Kingdome saith Regnum illud in omnibus Nationum Regum temporibus De Dom. polit et regal eisdem quibus nunc regitur legibus consuetudinibus regebatur But my good Lords as the Poet said of Fame I may say of our Common Law Ingreditur solo caput inter nubila condit Wherefore the cloudy part being mine Virgil. I will make haste to open way for your Lordships to heare more certain Arguments and such as go on surer grounds Be pleased then to know that it is an undoubted and fundamentall point of this so ancient Common Law of England that the Subject hath a true Proprietie in his goods and possessions which doth preserve as sacred that meum and tuum that is the Nurse of Industrie the Mother of Courage and without which there can be no Justice of which meum and tuum is the proper object But this undoubted Birthright of free Subjects hath latelie not a little been invaded prejudiced by pressures the more grievous because they have been pursued by Imprisonments contrary to the Franchise of
his Franchise nor Free Custome unlesse it be by the Law of the Land it is accorded assented and established that from henceforth none shall be taken by petition or suggestion made unto our Lord the King or to his Councell unlesse it be by indictment or presentment of his good and lawfull people of the same neighbourhood where such deeds be done in due manner or by processe made by Writ originall at the Common Law nor that none be out of his Franchises or of his Free-hold unlesse he be duely brought into answer and forejudged of the same by course of Law and if any thing be done against the same it shall be redressed and held for null Out of this Statute I observe that what in Magna Charta and the Preamble of this Statute is termed by the Law of the Land is in the body of this Act expounded to be by processe made by Writ originall at the Common Law which is a plain interpretation of the words Law of the Land in the grand Charter And I note that this Law was made upon the commitment of divers to the Tower no man yet knoweth for what The 28. E. 3. is yet more direct this Libertie being followed with fresh suite by the Subject where the words are not many but very full and significant That no man of what estate or condition he be shall be put out of his lands or Tenement nor taken nor imprisoned nor disinherited nor put to death without he be brought into answer by due processe of the Law Here your Lordships see the usuall words of the Law of the Land are rendered by due processe of the Law 36. E. 3. Rot. Parliam num 9. amongst the Petitions of the Commons one of them being translated into English out of the French is thus First that the great Charter and the Charter of the Forrest and the other Statutes made in his time and the time of his Progenitours for the profit of him and his Commonaltie be well and firmly kept and put in due execution without putting disturbance or making arrest contrarie to them by speciall command or in any other The answer to the Petition which makes it an Act of Parliament is Our Lord the King by the assent of the Prelates Dukes Earles Barons and the Commonaltie hath ordained and established that the said Charters and Statutes be held and put in execution according to the said Petition which is that no arrest should be made contrarie to the Statutes by speciall command This concludes the Question and is of as great force as if it were printed For the Parliament Roll is the true warrant of an Act and many are omitted out of the books that are extant 36. E. 3. Rot. Parliament num 20. explaineth it further for there the Petition is Whereas it is contained in the Grand Charter and other Statutes that none be taken or imprisoned by speciall command without indictment or other due processe to be made by the Law yet oftentimes it hath been and still is that many are hindred taken and imprisoned without indictment or other processe made by the Law upon them as well of things done out of the Forrest of the King as for other things That it would therefore please our said Lord to command those to be delivered which are so taken by speciall Command against the forme of the Charters and Statutes aforesaid The answer is The King is pleased if any man find himself grieved that he come and make his complaint and right shall be done unto him 37. E. 3. cap. 18. agreeth in substance when it saith Though that it be contained in the great Charter that no man be imprisoned nor put out of his Freehold without processe of the Law neverthelesse divers people make false suggestions to the King himself as well for malice as otherwise whereat the King is often grieved and divers of the Realme put in damage against the forme of the said Charter Wherefore it is ordained that all they which make such suggestions be sent with the suggestions before the Chauncellour Treasurer and the grand Councell and that they there find suretie to pursue their suggestions and incurre the same paine that the other should have had if he were attainted in case that their suggestions be found evil and that then processe of the Law be made against them without being taken and imprisoned against the forme of the said Charter and other Statutes Here the Law of the Land in the grand Charter is explained to be without processe of the Law 42. E. 3. ca. 3. At the request of the Commons by their Petitions put forth in this Parliament to eschew mischiefs and damage done to divers of his Commons by false accusers which oftentimes have made their accusation more for revenge and singular benefit then for the profit of the King or of his people which accused persons some have been taken and sometimes caused to come before the Kings Councell by writ and otherwise upon grievous paine against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices or matter of Record or by due processe or writ originall according to the old Law of the Land And if any thing henceforth be done to the contrary it shall be void in Law and holden for errour But this is better in the Parliament Roll where the Petition and Answer which make the Act are set down at large 42. E. 3. Rot. Parliament num 12. The Petition Because that many of the Commons are hurt and destroyed by false accusers who make their accusations more for their revenge and particular gaine then for the profit of the King or his people and those that are accused by them some have been taken and others have been made to come before the Kings Councell by writ or other Commandment of the King upon grievous paines contrary to the Law That it would please our Lord the King and his good Councell for the just government of his people to ordain that if hereafter any accuser propose any matter for the profit of the King that the same matter be sent to the Justices of the one Bench or the other or the affaires to be enquired and determined according to the Law And if it concern the accuser or partie that he take his suit at the Common Law and that no man be put to answer without presentment before Justices or matter of Record and by due processe originall writ according to the ancient Law of the Land And if any thing henceforward be done to the contrarie that it be void in Law and held for errour Here by due processe and originall writ according to the Law of the Land is meant the same thing as per legem terrae in Magna Charta and the abuse was they were put to answer by the commandment of the King The Kings Answer is thus Because that this
article is an article of the Grand Charter the King wills that this be done as the Petition doth demand By this it appeareth that per legem terrae in Magna Charta is meant by due processe of the Law Thus your Lordships have heard Acts of Parliament in the point But the Statute of Westm. the 1. ca. 15. is urged to disprove this opinion where it is expresly said That a man is not replevisable who is committed by the command of the King without any cause shewn which is therefore sufficient to commit a man to prison And because the strength of the Argument may appeares and the answer be better understood I shall read the words of the Statute which is thus And for as much as Sheriffs and others have taken and kept in prison such as were replevisable and have let out by plevin such as were not replevisable because they would gaine of the one partie and grieve the other And forasmuch as before this time it was not certainly determined what persons were replevisable and what not but only those that were taken for the death of a man or by Commandment of the King or of his Justices or for the Forrest It is provided and by the King commanded that such prisoners as were before outlawed and they which have abjured the Realme Provors and such as be taken with the manner and those which have broken the Kings prison Thieves openly defamed and known and such as be appealed by Provors so long as the Provor be living if they be not of good name and such as be taken for burning of houses felloniously done or for false money or for counterfeiting the Kings Seal or persons excommunicated taken at the request of the Bishops or for manifest offences or for Treason touching the King himself shall be in no case replevisable by the common writ or without writ But such as be indicted of larceny by inquests taken before Sheriffs or Bailiffs by their office or for light suspicion or for petty-larceny that amounteth not to above the value of 12 pence if they were not guilty of some other larceny aforetime or guilty of receipt of fellons or of commandment or force or of aid in felony done or guilty of some other trespasse for which one ought not to loose life or member and a man appealed by a Provor after the death of a Provor if he be no common thief or defamed shall from henceforth be let out by sufficient suretie whereof the Sheriff will be answerable and that without giving ought of their goods And if the Sheriff or any other let any go at large by suretie that is not replevisable if he be Sheriff or Constable or any Bailiffe of fee which hath keeping of prisoners and thereof be attainted he shall loose his fee and office for ever And if the under-Sheriff Constable or Bailiffe of such as have fee for keeping of prisons do it contrarie to the will of his Lord or any other Bailiffe being not of fee they shall have three yeares imprisonment and make Fine at the Kings pleasure And if any hold prisoners replevisable after they have offered sufficient sureties he shall pay a grievous amercement to the King And if he take any reward for the deliverance of such he shall pay double to the prisoner and also shall pay a grievous amercement to the King The Answer It must be acknowledged that a man taken by the Commandment of the King is not replevisable for so are the expresse words of this Statute But this maketh nothing against the Declaration of the House of Commons for they say not that the Sheriff may replevy such a man by sureties scilicet Manucaptores but that he is bailable by the Kings Court of Justice For the better understanding whereof it is to be known that there is a difference betwixt replevisable which is alwayes by the Sheriff upon pledges or sureties given and bailable which is by Court of Record where the prisoner is delivered to his Baile and they are his Gaolers and may imprison him and shall suffer for him bodie for bodie as appeareth 33. and 36.83 in the title of Mainprize p. 12.13 where the difference betwixt Baile and Mainprize is expresly taken And if the words of the Statutes themselves be observed it will appeare plainly that it extends to the Sheriffs and other inferiour Officers and doth not bind the hands of the Judges The Preamble which is the key which openeth the entrance into the meaning of the makers of the Law is Forasmuch as Sheriffs and others which have taken and kept in prison persons detected of fellony Out of these words I observe that it nominateth Sheriffs and then if the Justices should be included they must be comprehended under the generall word other which doth not use to extend to those of a higher rank but to inferiours for the best by all course is first to be named And therefore if a man bring a Writ of Customes and Services and name Rents and other things the generall shall not include Homage which is a personall service and of a higher nature but it shall extend to ordinarie annuall services 31. E. 1. Droit So the Statute of 13. Eliz. cap. 10. which beginneth with Colledges Deanes and Chapters Parsons Vicars and concludes with these words and others having spirituall promotions shall not comprehend Bishops that are of a higher degree as appeares in the Archbishop of Canterburies Case reported by S r Edw. Coke lib. 2. fo 46. And thus much is explained in this verie Statute towards the end when it doth enumerate those were meant by the word other namely under-Sheriffs Constables Bailiffs Again the words are Sheriffs and others which have taken and kept in prison now every man knoweth Judges do neither arrest nor keep men in prison that is the office of Sheriffs and other inferiour Ministers therefore this Statute meant such only and not Judges The words are further that they let out by replevine such as were not replevisable that is the proper language for a Sheriff Nay more expresse afterward in the bodie of the Statute that such as are there mentioned shall be in no case replevisable by the common writ which is de homine replegiando and is directed to the Sheriff nor without writ which is by the Sheriff ex officio But that which receives no answer is this That the command of the Justices who derive their authorities from the Crown is there equall as to this purpose with the command of the King And therefore by all reasonable construction it must needs relate to Officers subordinate to both as Sheriffs under-Sheriffs Bailiffs Constables and the like And it were an harsh exposition to say that the Justices might not discharge their own Command and yet that reason would conclude as much And that this was meant of the Sheriffs and other Ministers of Justice appeareth by the recitall 27. E. 1. cap. 3. And likewise by Fleta a Manuscript so
called because the Authour lay in the Fleet when he made the book for he lib. 2. cap. 52. in his cap. of Turnes and the views of the Hundred Courts in the Countrie sets down the Articles of the Charges that are there to be enquired of amongst which one of them is de replegiabilibus injuste detentis or irreplegiabilibus dimissis which cannot be meant of not bailing by the Justices for what have the inferiour Courts in the Countrey to do with the Acts of the Justices And to make it more plain he setteth down in this Chapter that concernes Sheriffs only the very Statute of Westm. cap. 15. which he translates verbatim out of the French into the Latin save that he renders taken by the command of the Justices thus per Iudicium Iustitiariorum and his Preface to the Statute plainly sheweth that he understood it of replevine by Sheriffs for he saith Qui debent per plegios dimitti qui non declarat hoc Statutum and per plegios is before the Sheriff But for direct authoritie it is the opinion of Newton the Chief Justice in 22. H. 6.46 where his words are these It cannot be intended that the Sheriff did suffer him to go at large by mainprize for where one is taken by the writ of the King or the command of the King he is irreplevisable but in such case his friends may come to the Justices for him if he be arrested and purchase a supersedeas So he declares the very Question That the Sheriffs had no power but that the Justices had power to deliver him that is committed by the Kings Command And both the ancient and modern practise manifests as much for he that is taken for the death of a man or for the Forrest is not replevisable by the Sheriff yet they are ordinarily bailed by the Justices and were by the Kings writs directed to the Sheriffs in the times of E. 1. and E. 2. as appeares in the Close Rolls which could not be done if they were not bailable And it is every dayes experience that the Justices of the Kings Bench do baile for murther and for offences done in the Forrest which they could not do if the word irreplevisable in Westm. 1. were meant of the Justices as well as of the Sheriffs For the authorities which have been offered to prove the contrarie they are in number 3. The first is 21. E. 1. Rot. 2. which also is in the book of the Pleas in Parliament at the Tower fol. 44. It is not an Act of Parliament but a resolution in Parliament upon an action there brought which was usuall in those times and the Case is That Stephen Rubar the Sheriff of the Counties of Leicester and Warwick was questioned for that he had let at large by sureties one William the son of Walter le Parsons against the will and command of the King when as the King had committed him by Letters under his Privie Seal that he should do no favour to any man that was committed by the command of the Earle of Warwick as that man was Whereunto the Sheriff answered that he did it at the request of some of the Kings houshold upon their Letters and because the Sheriff did acknowledge the receipt of the Kings Letters thereupon he was committed to prison according to the forme of the Statute To this I answer that he was justly punished for that he is expresly bound by the Statute Westm. 1. which was agreed from the beginning But this is no proof that the Judges had not power to baile this man The next Argument is 33. H. 6. in the Court of Common Pleas fol. 28.29 where Robert Poinings Esq was brought unto the Barre upon a Capias and it was returned that he was committed per duos de Consilio I believe it is misprinted for Dnos de Consilio i. e. Dominos de Consilio which is stongest against that which I maintain pro diversis causis Regem tangentibus and he made an Attorney there in an accusation whence is inferred that the return was good and the partie could not be delivered To this the Answer is plain 1. No opinion is delivered in that book whether he were delivered or bailed or not 2. It appeares expresly that he was brought thither to be charged in an accusation of debt at another mans Suit and no desire of his own to be delivered or bailed and then if he were remanded it is no way materiall to the question in hand But that which is most relied upon is the opinion of Stamford in his book of the Pleas of the Crown lib. 2. ca. 18. fol. 72.73 in his cap. of Mainprize where he reciteth the Statute of Westm. 1. cap. 15. and then saith thus By this Statute it appeareth that in 4 cases at the Common Law a man was not replevisable to wit those that were taken for the death of a man by command of the King or of his Justices or for the Forrest Thus farre he is most right Then he goeth on and saith As to the Command of the King that is understood of the command of his own mouth or his Councell which is incorporated unto him and speake with his mouth or otherwise every writ of Capias to take a man which is the Kings command would be as much And as to the command of the Justices that is meant their absolute command for if it be their ordinarie commandment he is replevisable by the Sheriff if it be not in some of the Cases prohibited by the Statute The answer that I give unto this is That Stamford hath said nothing whether a man may be committed without cause by the Kings command or whether the Judges ought not to baile him in such case but only that such a one is not replevisable which is agreed for that belongs to the Sheriff And because no man should think he meant any such thing he concludes his whole sentence touching the command of the King and his Justices That one committed by the Justices ordinarie command is replevisable by the Sheriff So either he meant all by the Sheriff or at least it appeares not that he meant that a man committed by the King or the Privie Councell without cause is not bailable by the Justices and then he hath given no opinion in this case What he would have said if he had been asked the question cannot be known neither doth it appeare by any thing he hath said that he meant any such thing as would be inferred out of him And now my Lords I have performed the command of the Commons and as I conceive shall leave their declaration of personall Liberty on ancient and undoubted truth fortified with 7 Acts of Parliament and not opposed by any Statute or authoritie of Law whatsoever The Objections of the King's Councell with the Answers made thereunto at the two Conferences touching the same matter IT was agreed by Master Attorney generall that the seven Statutes urged by
as it is called also The first two are Writs to be directed to the Sheriff of the Countie and lye only in some particular cases with which it would be untimely for me to trouble your Lordships because they concern not that which is committed to my charge But that Writ of habeas Corpus or Corpus cum causa is the highest remedy in Law for him that is imprisoned by the speciall command of the King or of the Lords of the Councell without shewing cause of the commitment Neither is there any such thing in the Lawes of this Land as a Petition of Right to be used in such cases for the Liberty of the person nor is there any other legall Course to be taken for enlargement in such cases howsoever the contrary hath upon no ground or colour of Law been pretended Now my Lords if any man be so imprisoned by any such command or otherwise in any prison whatsoever through England and desire either by himself or any other in his behalf this Writ of habeas Corpus for the purpose in the Court of King's Bench the Writ is to be granted to him and ought not to be denied him no otherwise then any ordinary originall Writ in the Chauncery or other common processe of Law may be denyed Which amongst other things the House of Commons hath resolved also upon mature deliberation and I was commanded to let your Lordships know so much This Writ is to be directed to the Keeper of the Prison in whose custody the Prisoner remaines commanding him that at a certain day he bring in the body of the Prisoner ad subjiciendum recipiendum juxta quod Curia consideraverit una cum causa captionis detentionis and oftentimes una cum causa detentionis only captionis being omitted The Keeper of the Prison thereupon returnes by what Warrant he detaines the Prisoner and with his Return filed to his Writ brings the Prisoner to the Barre at the time appointed When the Return is thus made the Court judgeth of the sufficiency or insufficiency of it only out of the body of it without having respect to any other thing whatsoever that is they are to suppose the Return to be true whatsoever it be For if it be false the party may have his remedy by action on the case against the Gaoler that brings him Now my Lords when this Prisoner comes thus to the Barre if he desires to be bailed and that the Court upon view of the Return think him in Law to be bailed then he is alwayes first taken from the Keeper of the Prison that brings him and committed to the Marshall of the Kings Bench and afterwards bailed and the Entrie perpetually is Committitur Marr. postea traditur in ballium For the Court never bailes any man untill he becomes their own Prisoner and be in custodia Marescalli of that Court. But if upon return of the habeas Corpus it appears to the Court that the Prisoner ought not to be bailed nor discharged from the Prison whence he is brought then he is remanded or sent back again there to remain untill by Course of Law he may be delivered And the Entrie in such case is Remittitur quousque secundum legem deliberatus fuerit or Remittitur quousque c. which is all one and is the highest award or Judgement that ever was or can be given upon a habeas Corpus But if the Judges doubt only whether in Law they ought to take him from the prison whence he came or give daie to the Sheriff to amend his Return as often they do then they remand him only during the time of their debate or untill the Sheriff hath amended his Return and the Entrie upon it is Remittitur only or Remittitur prisonae predict without any more And so remittitur generally is of farre lesse moment in the award upon the habeas Corpus then remittitur quousque howsoever vulgar opinions raised out of the fame of the late Judgement be to the contrary All these things are of most known and constant use in the Court of Kings Bench as it cannot be doubted but your Lordships will easily know also from the grave and learned my Lords the Judges These two causes the one of the Entrie of Committitur Marescallo postea traditur in ballium and the other Remittitur quousque and Remittitur generally or Remittitur prisonae predict together with the nature of the habeas Corpus being thus stated it will be easier for me to open and your Lordships to observe whatsoever shall occurre to this purpose in the Presidents of Record to which I shall come in particular But before I come to the Presidents I am to let your Lordships know the resolution of the House of Commons touching the enlargement of any man committed by the command of the King or of the Privie Councell or of any other without cause shewed of such commitment It is thus That if a Free-man be committed or detained in prison or otherwise restrained by the Command of the King the Privie Councell or any other and no cause of such commitment detainer or restraint be expressed for which by Law he ought to be committed detained or restrained and the same be returned upon a habeas Corpus granted for the partie that then he ought to be delivered or bailed This resolution as it is grounded upon those Acts of Parliament already shewed and the reason of the Law of the Land which is committed to the charge of another and an one to be opened unto you is strengthened also by many Presidents of Record But the Presidents of Record that concerne this point are of two kinds for the House of Commons hath informed it self of such as concern it either way The first such as shew expresly that persons committed by the Command of the King or of the Privie Councell without any cause shewed have been enlarged upon Baile when they prayed it Whence it appeares cleerly that by Law they were bailable and so by habeas Corpus to be set at liberty For although they ought not to have been committed without cause shewen of their commitment yet it is true that the reverend Judges of this Land in former Ages did give such a respect to such commitment by Command of the King or of the Lords of the Councell as also to the commitments sometimes of inferiour persons that upon the habeas Corpus they rarely used absolutely to discharge the prisoners instantly but to enlarge them only upon Baile which sufficiently secures and preserves the Liberty of the Subject according to the Lawes that your Lordships have already heard Nor in any of these cases is there any difference made between any such commitments by the King and commitments by the Lords of the Councell that are incorporated with him The second kind of Presidents of Record are such as have been pretended to prove the Law to be contrarie and that persons so committed ought not
is true he was so But the Return and this Commitment mentioned in it have no reference to any such offence nor hath the Bailment of him relation to any thing but to the absolute Commitment by the Privie Councell So that the answer to the like objection made against Overton's Case satisfies this also The sixth of these is of Q. Elizabeth's dayes It is Mich. 9. Eliz Rot. 35. the Case of Thomas Lawrence This Lawrence came in by habeas Corpus returned by the Sheriffs of London to be detained in prison per mandatum Concilii Dominae Reginae Qui committitur Marescallo c. super hoc traditur in ballium An Objection hath been invented against this also It hath been said that this man was pardoned and indeed it appeares so in the margent of the Roll where the word pardonatur is entred But cleerly his enlargement by Baile was upon the Bodie of the Return only unto which that Note of Pardon in the Margent of the Roll hath no relation at all And can any man think that a man pardoned for what offence soever it be might not as well be committed for some Arcanum or matter of State as one that is pardoned The seventh of these is in the same yeare and of Easter Terme following It is Pasche 9. Eliz. Rot. 68. Robert Constable's Case He was brought by habeas Corpus out of the Tower and in the Return it appeared he was committed per mandatum privati Concilii dict Dominae Regina Qui committitur Marr. postea isto codem Termino traditur in ballium The like Objection hath been made to this as to that before of Lawrence but the self same Answer cleerly satisfies for both of them The eighth is of the same Queens time in Pasche 20. Eliz. Rot. 72. Iohn Browning's Case This Browning came by habeas Corpus out of the Tower whether he had been committed was returned to have been committed per privatum Concilium Dominae Reginae Qui committitur Maresc Et postea isto codem Termino traditur in ballium To this it hath been said That it was done at the chief Justice Wraye's Chamber and not in Court and thus the authoritie of the President hath been lessened and sleighted If it had been at his Chamber it would have proved at least thus much That S r Christopher Wraye then chief Justice of the King's Bench being a grave learned and upright Judge knowing the Law to be so did baile this Browning and so enlarge him And even so farre were the President of value enough But it is plain that though the habeas Corpus were returnable indeed as it appeares in the Record it self at his Chamber in Serjeant's Inne yet he only committed him to the Kings Bench presently and referred the consideration of enlarging him to the Court who afterwards did it For the Record saith Et postea isto eodem Termino traditur in ballium which cannot be intended of an enlargement at the chief Justice his Chamber The ninth of this first kind is in Hill 40. Eliz. Rot. 62. Edward Harecourts Case He was imprisoned in the Gate-house and that per Dominos de privato Concilio Dominae Reginae pro certis causis eos moventibus et ei ignotis and upon his habeas Corpus was returned to be therefore only detained Qui committitur Marr. c. Et postea isto eodem Termino traditur in ballium To this never any colour of answer hath been yet offered The tenth is Catesbies Case in the Vacation after Hillary Terme 43. E. Rot. 37. Robert Catesby was committed to the Fleet per warrant diversorum prenobilium virorum de privato Concilio Dominae Reginae He was brought before Justice Fennor one of the Judges of the Kings Bench by habeas Corpus at Winchester House in Southwark commissus fuit Marr. per praefat Edw. Fennor statim traditur in ballium The eleventh is Richard Beckwith's Case which was in Hillary 12. of King Iames R. 153. He was returned upon his habeas Corpus to have been committed to the Gate-house by divers Lords of the Privy Councell Qui committitur Marr. postea isto Termino traditur in ballium To this it hath been said by some that Beckwith was bailed upon a Letter written by the Lords of the Councell to that purpose to the Judges But it appeares not that there was ever any letter written to them to that purpose which though it had been would have proved nothing against the authority of the Record For it was never before heard of that Judges were to be directed in point of Law by letters from the Lords of the Councell although it cannot be doubted but that by such letters sometimes they have been moved to baile men that would not or did not ask their enlargement without such letters as in some examples that I shall shew your Lordships among the Presidents of the second kind The twelfth and last of these is that of S r Thomas Mounson's It is Mich. 14. Iacobi Rot. 147. He was committed to the Tower per warrantum à diversis Dominis de privato Concilio Domini Regis Locum-tenenti directum and was returned by the Lieutenant to be therefore detained in prison Qui committitur Marr. super hoc traditur in ballium To this it hath been answered That every body knew by common fame that this Gentleman was committed for suspicion of the death of S r Thomas Overbury and that he was therefore bailable A most strange interpretation as if the Body of the Return and the Warrant of the Privie Councell should be understood and adjudged out of fame only Was there not as much a fame why the Gentlemen that were remanded in the late Judgement were committed and might not the self-same reason have served to enlarge them their offence if any were being I think much lesse then that for which this Gentleman was suspected And thus I have faithfully opened the number of twelve Presidents most expresse in the very point in question and cleered the Objections that have been made against them And of such Presidents of Record as are of the first kind or prove plainly the practise of former Ages and Judgements of the Court of the Kings Bench in the very point in behalf of the Subjects my Lords hitherto I come next those of the second kind or such as have been pretended to prove that persons so committed are not to be enlarged by the Judges upon the habeas Corpus but ought to remain in Prison still at the plâ—asure of the King or of the Privie Councell These are of two natures The first are those wherein some assent of the King or the Privie Councell appeares upon the enlargement of a Prisoner so committed as if that because their assent appeares therefore the enlargement could not have been without such assent The second of this kind are those which have been used as expresse Testimonies of the Judges denying
Baile And in such cases I shall open this also to your Lordships which being done it will most cleerly appeare that there is nothing at all in any of these that make any thing against the Resolution of the House of Commons touching this point Nay they are so farre from making any thing against it that some of them adde good weight also to the proof of that Resolution For those of the first nature of this second kind of Presidents they begin in the time of H. 7. Thomas Brugge and divers others were imprisoned in the Kings Bench ad mandatum Domini Regis They never sought remedy by habeas Corpus or otherwise for ought appeares but the Roll sayes Dominus Rex relaxavit mandatum and so they were bailed But can any man think that this is an Argument either in Law or common Reason that therefore they could not have been bailed without such assent It is common in the Cases of common persons that one being in Prison for surety of the peace or the like at the Suit of another is bailed upon the release of the party plaintiff Can it follow that therefore he could not have been bailed without such a release Nothing is more plain then the contrary It were the same thing to say that if it appear that a plantiffe be non-suit therefore unlesse he had been non-suit he could not have been barred in the Suit The Case last cited is M. 7. H. 7. Rot. 6. The very like is in the same year Hill 7. H. 7. Rot. 13. the Case of William Bartholmew Williams Case and divers others And the self-same answer that is given to the other cleeres this So in the same year Pasche 7. H. 7. Rot. 18. Iohn Beaumond's Case is the same in substance with those other two and the self same answer also satisfies that cleeres them The next is Mich. 12. H. 7. Rot. 18. Thomas Yewe's Case He was committed ad securitatem pacis for surety of the Peace at the suit of one Freeman and besides ad mandatum Domini Regis And first Freeman relaxavit securitatem pacis and then S r Iames Hubbard the then Kings Attorney generall relaxavit Domini Regis mandatum and hereupon he is bailed The release of the Kings Attorney no more proves that he could not have been enlarged without such release or assent then that he could not have been bailed without the release of surety of the Peace by Freeman The very like is in Hill 9. H. 7. Rot. 14. the Case of Humphry Batch which proves no more here then the rest of this kind already cited Then for this part also Broome's Case of Queen Elizabeth's time hath been cited The Case is thus Ter. 39. Eliz. Rot. 118. Lawrence Broom was committed to the Gate-house per mandatum Dominorum Concilii Dominae Reginae and being returned so upon the habeas Corpus is first committed to the Marshalsey as the course is and then bailed by the Court. Which indeed is an expresse President that perhaps might well have been added to the first twelve which so plainly shews the practise of enlarging prisoners in this case by Judgement of the Court upon the habeas Corpus But it is true that in the Scrolls of that yeare where the Bailes are entred but not the Record of the habeas Corpus there is a note that this Broom was bailed per mandatum privati Concilii super habeas Corpus But plainly this is no kind of Argument that therefore in Law he ought not to have been otherwise bailed The self same is to be said of another of this kind in Mich. 40. Eliz. Rot. 37. Wenden's Case Thomas Wenden was committed to the Gate-house by the Queen and Lords of the Councell pro certis causis generally he is brought by habeas Corpus into the Kings Bench and bailed by the Court. But it is said that in the Scrolls of that yeare it appeares that this enlargement was per consensum Dominorum privati Concilii And it is true that the Queene's Majesties Attorney did tell the Court that the Lords of the Councell did assent to it Followes in therefore that this might not have been by Law done if the parties themselves had desired it So in Trinit primo Iacobi Rot. 30. S r Iohn Brocket being committed to the Gate-house is by habeas Corpus returned to stand committed per mandatum privati Concilii And he is enlarged virtute warranti à Concilio praedicto But the same answer that satisfies for the rest before cited serves for this also The last of these is Reyner's Case in Mich. 12. Iacob Rot. 119. He was committed to the Gate-house by the Lords of the Councell being brought into the Kings Bench by habeas Corpus is enlarged upon Baile But this they say was upon a letter written by the Lords of the Councell to the Judges It is true that such a letter was written but the answer to the former Presidents of this nature are sufficient to cleer this also And in all these observe First That it appeares not the party ever desired to be enlarged by the Court or was denyed it Secondly Letters either of the Councell or from the King cannot alter the Law in any case So that hitherto nothing that hath been brought for the contrarie part hath any force or colour of Reason in it We come now my Lords to those Presidents of the other nature cited against this Liberty of the Subject that is such as have been used to justify that persons so committed may not be enlarged by the Court. They are in number eight but there is not one of them all proves any such thing as your Lordships will plainly see upon the opening of them The first foure of them are exactly in the same words saving that the names of the Persons and the Prisons differ I shall therefore cite them all one after another and then cleer them together The first is Richard Everard's Case Hill 7. H. 7. Rot. 18. He and others were committed to the Marshalsey of the Houshold per mandatum Domini Regis and so returned upon an habeas Corpus in the Kings Bench. whereupon the Entrie is only Qui committitur Narescallo c. The second is Hill 8. H. 7. Rot. 12. Richard Cherrye's Case He was committed to the Major of Windsor per mandatum Domini Regis and so returned upon an habeas Corpus and the Entrie is only Qui committitur Maresc c. The third is Hill 9. H. 7. Rot. 14. Christopher Burton's Case who was committed to the Marshalsey of the Houshold per mandatum Domini Regis and so returned upon his habeas Corpus and the Entrie is likewise Qui committitur Marescallo c. The fourth is George Vrsmick's Case Pasche 19. H. 7. Rot. 23. He was committed to the Sheriffs of London per mandatum Domini Regis and returned so upon the habeas Corpus Qui committitur Maresc These 4 have been used principally as
expresse Presidents to prove that a Prisoner so committed cannot be enlarged And perhaps at the first fight by men that know not or observe not the course and Entries of the Court of Kings Bench they may be apprehended to prove as much But in truth they rather prove the contrarie at least there is no such colour in them of any such matter as they have been used for To which purpose I beseech your Lordships to call to your memories that which I first observed to you touching the course of that Court where a Prisoner is brought in by habeas Corpus He is if he be not to be remanded first committed to the Marshall of that Court and then bailed as his Case requires that is so certain as it can never be otherwise Now these men being thus committed by the expresse Command of the King are first you see taken from the Prisons where first they were committed Wherein you may observe by the way my Lords that if a generall supposition of matter of State were of force in such a case it might be as needfull for point of State to have the Prisoners remain in prison where the King by such an absolute Command committed them as to have them at all committed When they have taken them from the Prisons where before they were they commit them to the Marshall of their own Court which is but the first step to bailing them Now it appeares not indeed that they were bailed for then traditur in ballium had followed but nothing at all appeares that they were denied it perhaps they never asked it perhaps they could not find such as were sufficient to bail them And in truth whensoever any man is but removed from any Prison in England though it be for debt or trespasse only into that Court the Entrie is but in the self-same syllables as in these 4 Cases And in truth if these Presidents did prove that any of the Prisoners named in them were not bailable or had been thought by the Court to have been not bailable it will necessarily follow that no man living that is ordinarily removed from any other Prison into the Kings Bench or that is there upon an ordinary action of debt or action of trespasse could be bailed For every man that is brought thither and not remanded and every man that is but arrested for debt or trespasse and not returned into that Court is likewise committed to the Marshall of that Court and by the self-same Entry and no otherwise Yet these 4 have been much stood on and have strangely misled the judgement of some that either did not or would seem not to understand the course of the Court. The fifth of this nature is Edward Page's Case It is Trinit 7. H. 8. Rot. 23. This might have been well reckoned with the former 4. had not the mis-entrie only of the Clark made it varie from them Edw. Page was committed to the Marshalsey of the Houshold and that per mandatum Domini Regis and returned to be therefore detained and the Entrie is Qui committitur Marr. hospitii Domini Regis And this word Marr. is written in the Margent of the Roll. This hath been also used to prove that the Judges did remand this Prisoner If they had done so the remanding had been only while they advised and not any such award which is given when they adjudge him not bailable But in truth the word Committitur shewes that it was not any remanding of him Nor doth that Court ever commit any man to the Marshalsey of the Houshold And besides the word Marr. for Marescallo in the margent shewes plainly that he was committed to the Marshall of the Kings Bench and not remanded to the Marshalsey of the Houshold For such Entrie of that word in the Margent is perpetually in cases of that nature when they commit a man to their own prison and so give him the first step to bailment which he may have if he ask it and can find baile And doubtlesse those words of hospitii predict were added by the errour of the Clark for want perhaps of distinction in his understanding of the Marshall of the Kings Bench from the Marshall of the Houshold The sixth of these is Thomas Cesar's Case It is in the 8. Iacobi Regis Rot. 99. This Cesar was committed to the Marshalsey of the Houshold per mandatum Domini Regis and returned to be therefore detained and indeed a remittitur is in the Roll but not a remittitur quousque but only that kind of remittitur which is used only whiles the Court adviseth And in truth this is so farre from proving any thing against the Resolution of the House of Commons that it appeares that the opinion of the reverend Judges of that time was That the Return was insufficient and that if it were not amended the Prisoner should be discharged For in the Book of Rules of that Court of Mich. Terme when Cesars Case was in question they did expresly order that if the Steward and Marshall did not amend their Return the Prisoner should be absolutely discharged The words of the Rule are Nisi Scenescallus Marescallus hospitii Domini Regis sufficienter returnaverint breve de habeas Corpus Tho Cesar die Mercurit proxim post quindenam sancti Martini defendens exonerabitur And this is all the force of that President but yet there hath been an interpretation used upon this Rule It hath been said that the Judges gave this Rule because the truth was that the Return was false and that it was well known that the Prisoner was committed not by the immediate Command of the King but by the command of the Lord Chamberlain and thence as it was said they made this Rule But this kind of interpretation is the first that ever supposed that Judges should take any notice of the truth or falshood of any Return otherwise then the body of the Return could inform them And the rule it self speakes plainly of the sufficiency only and not of the truth or falshood of it The seventh of these is the Case of Iames Demetrius Edward Emerson and some others that were Brewers and were committed to the Marshalsey of the Houshold per mandatum Domini Regis and so returned upon habeas Corpus And it is true that the Roll shewes they were remanded but the remanding was only upon advisement And indeed the grave and upright Judges of that time were so carefull least upon the entring of the remanding any such mistake might be as might perhaps mislead posterity in so great a point that they would have expresly the word immediate added to remittitur that so all men that should meet with the Roll might see that it was done for the present only and not upon any debate of the question And besides there is no quousque to it which is usually added when the highest award upon debate or resolution of this kind is given by them The eighth of
these is the Case of S r Samuel Saltonstall It is Hill 12. Iacob He was committed to the Fleet per mandatum Domini Regis and besides by the Court of Chauncery for disobeying an order of that Court and is returned upon his habeas Corpus to be therefore detained And it is true that a remittitur is entred in the Roll but it is only a remittitur prisonae predict without quousque secundum legem deliberatus fuerit And in truth it appeares in the Record that the Court gave the Warden of the Fleet 3 severall dayes at severall times to amend his Return and in the interim remittitur prisonae predict still Certainly if the Court had thought that the Return had been good they would not have given so many severall dayes to have amended it For if that mandatum Domini Regis had been sufficient in the Case why needed it to have been amended The ninth and last of these is Trinit 13. Iacob Rot. 71. the Case of the said S r Samuel Saltonstall He is returned by the Warden of the Fleet as in the Case before and generally remittitur as in the Roll which proves nothing at all that therefore the Court thought he might not by Law be enlarged and besides in both Cases he stood committed also for disobeying an order in Chauncery These are all that have been pretended to the contrary in this great point and upon the view of them thus opened to your Lordships it is plain that there is not one not so much as one at all that proveth any such thing as that persons committed by the Command of the King or of the Lords of the Councell without cause shewed might not be enlarged but indeed the most of them expresly prove rather the contrary Now my Lords having thus gone through the Presidents of Record that concern this point of either side before I come to the other kind of Presidents which are the solemn resolution of Judges in former times I shall as I am commanded by the House of Commons represent unto your Lordships somewhat else that they have thought very considerable with which they have met while they were in a most carefull enquirie of whatsoever concerned them in this great Question It is my Lords a draught of an Entry of a Judgement in that great Case lately adjudged in the Court of Kings Bench when divers Gentlemen imprisoned per speciale mandat Domini Regis were by the Award and Judgement of the Court after solemn debate sent back to Prison because it was expresly said that they could not in Justice deliver them though they prayed to be bailed The case is famous and well known to your Lordships therefore I need not further mention it And as yet indeed there is no Judgement entred upon the Roll but there is room enough for any kind of Judgement to be entred But my Lords there is a form of a Judgement a most unusuall one such a one as never was in any such Case before used for indeed there was never before any Case so adjudged and this drawn up by a chief Clark of that Court by direction of M r Attorney Generall as the House was informed by the Clark in which the reason of the Judgement and the remanding of those Gentlemen is expressed in such sort as if it should be declared upon Record for ever that the Law were that no man could be enlarged from imprisonment that stood committed by any such absolute command The draught is only in S r Iohn Henningham's Case being one of the Gentlemen that was remanded and it was made for a form for all the rest The words of it are after the usuall Entrie of a Curia advisur vult for a time that visis return predict nec non diversis antiquis Recordis in Curia hic remanent consimiles casus concernentibus maturaque deliberatione inde prius habita eo quod nulla specialis causa captionis five detentionis predict Johannis exprimitur sed generaliter quod detentus est in prisona predict per speciale mandatum Domini Regis ideo predictus Johannes remittitur perfato Custodi Marr. hospitii predict salvo custodiend quousque c. that is quousque secundum legem deliberatus fuerit And if that Court which is the highest for ordinary Justice cannot deliver him secundum legem what Law is there I beseech you my Lords that can be sought for in any other inferiour Court to deliver him Now my Lords because this draught if it were entred in the Roll as it was prepared for no other purpose would be a great declaration contrary to the many Acts of Parliament already cited contrary to all Presidents of former times and to all reason of Law to the utter subversion of the chiefest Liberty and Right belonging to every Free-man of the Kingdome and for that especially also it supposeth that divers ancient Records had been looked into by the Court in like Cases by which Records their Judgements were directed whereas in truth there is not one Record at all extant that with any colour not so much indeed as with any colour warrants the Judgement therefore the House of Commons thought fit also that I should with the rest that hath been said shew this draught also to your Lordships I come now to the other kind of Presidents that is solemn Resolutions of Judges which being not of Record remain only in authentick Copies But of this kind there is but one in this Case that is a resolution of all the Judges in England in the time of Queen Elizabeth It was in the foure and thirtieth yeare of her reign when divers persons had been committed by absolute command and delivered by the Justices of one Bench or the other whereupon it was desired that the Judges would declare in what Cases persons committed by such Command were to be enlarged by them The resolution hath been variously cited and variously apprehended The House of Commons therefore desiring with all care to enforme themselves as fully of the truth of it as possibly they might got into their hands from a member of their House a book of selected Cases collected by a learned and reverend Chief Justice of the Common Pleas that was one of them that gave the Resolution which is entred at large in that book I mean the Lord Chief Justice Anderson It is written in that book in his own hand as the rest of the book is And however it hath been cited and was cited in that great Judgement given upon the habeas Corpus in the King's Bench as if it had been that upon such commitments the Judges might not baile the prisoners yet it is most plain that in the resolution it self no such thing is contained but rather expresly the contrary I shall better represent it to your Lordships by reading it then by opening it Then it was read If this Resolution doth resolve any thing it doth indeed upon the matter resolve fully the
Dominae Reginae super habeas Corpus Radulpho Mayall de Hatfield Penell praedict Henr. Vndall de eadem gener Willielmo Ecclesden de Westm. Bricklayer Richardo Morgan de Westm. Labourer uterque pleg sub poena 40 l. sub poena 100 l. Marr. pro suspitione proditionis cum Iohanne Smith mil. De Termino sancti Michaelis anno 40 Elizabethae Reginae et per com ro ejusdem rot 37. Midd. sci Thomas Wenden per Hugonem Parlor generos custod prisonae Dominae Reginae de le Gatehouse virtute brevis Dominae Reginae de habeas Corpus ad subjiciendum c. ei inde direct coram Domina Regina apud Westm. duct cum causa viz. Quod 18. die Junii anno Regni Dominae Elizabethae nunc Reginae Angliae 38. Corpus infra nominati Tho. Wenden extra curiā ejusdem Dominae Reginae Angliae coram ipsa Dom. Concilio suo in Camera stellata prisonae Dominae Reginae de le Gate-house sub custodia sua pro certis causis eisdem Dominae Reginae concilio suo moventibus ei ignotis commissus fuit salvo custodiend donec aliud inde habuerit praecept Et haec est causa detentionis praedict Thomae in prisona praedict Marr. ball Qui committitur Marr. c. Et postea isto eodem Termino traditur in ballium prout patet per scruet finium istius Termini Per scruet finium de Termino sancti Michaelis anno 39. 40. Elizabethae Reginae Thom. Wenden de Aldham in comitatu Essex Mar. Yeoman traditur in ballium super habeas Corpus ad subjiciendum recipiendum Iohannes Wenden de Colmewalke in comitatu praedict yeoman Usque octab Hillar Will. Beriffe de Aldham praedict in comitatu praedict gen Radulpho Northen de Aldham in comitatu praedict yeoman quilibet praedict sub poena 200. Marcis pars sub poena 200 l. Idem Thom Wenden traditus fuit in ballium per consens Dominorum privati Concilii per Relationem Attorn Dominae Reginae general sub R. capt sub Terminum post crastin Martini De Termino Hillarii anno Eliz. Reginae Rot. 89. Domina Regina mandavit praedilecto fideli Conciliario suo Iohannem Popham mil. capital Justic. Dominae Reginae ad placita coram ipsa Regina tenend assignat Ac dilectis fidelibus suis Iohanni Clench Francisco Gawdy Edwardo Fennor Justiciar ipsius Dominae Reginae ad placita praedict aut eorum alicui breve suum de privato Sigillo manu sua propria quod sequitur in haec verba By the Queen Trustie and welbeloved we greet you well Whereas William Constable late of London Knight Robert Vernon late of London Knight Henry Lincey late of London Knight Ellis Iones late of London gent. Charles Ogle late of London gent. Robert Pitchforke late of London gent. Iohn Wright late of London gent. Christopher Wright late of London gent. and Edmund Whitlocke late of London gent. for the late treasonable attempt of the late Erle of Essex have been committed to sundry places and prisons for their offences committed some in one sort some in another and stand amongst others indicted of high Treason for their severall offences Forasmuch as of our princely disposition we are graciously bent to extend our grace and favour unto them and that they shall be bailed We will and command you or any of you to bail the aboue named persons or any of them to appear before us in our Court commonly called the Kings Bench at such time and in such manner and form as to you or any of you shall seem meet And this shall be your sufficient warrant and discharge in that behalf To our trusty and welbeloved Counceller S r Iohn Popham Knight Chief Justice of our Pleas to be holden before us To our trusty and welbeloved Iohn Clench Francis Gawdy and Edward Fennor Justices of the same Pleas or any of them De Vacatione Hillarii anno 43. Eliz. Reginae Gatehouse Robertus Vernon nuper de London mil. Henricus Lincey nuper de London mil. Carolus Ogle nuper de London generos per Willielmum Okey custod prisonae de le Gatehouse virtute brevis Dominae Reginae de habeas Corpus ad subjiciendum c. Ei inde direct coram Francisco Gawdy uno Justiciar Dominae Reginae ad placita coram ipsa Regina tenend assignat apud hospitium suum in Chauncery lane London duct cum causa viz. Quod praedictus Robertus Henricus Carolus sibi commissi fuerint per mandatum privati Concilii Dominae Reginae pro quibusdam altis proditionibus per ipsos fieri suppositi Marr. Ball. Qui traduntur in ballium praetextu brevis c. De Vacatione Hillarii 43. Eliz. Reginae Fleet sci Henricus Carew de London mil. per Iohannem Phillips Gardian de le Fleet virtute brevis Dominae Reginae de habeas Corpus ad subjiciendum c. Ei inde direct coram Francisco Gawdy uno Justiciar Dominae Reginae de placita coram ipsa Regina tenend assign apud hospitium suum in Sergeants Inne in Chauncery lane London duct cum causa viz. qoud praedict Henr. commissus fuit prison praedict 11 die Februarii anno 43 Reginae virtute cujusdam warranti diversorum praenobilium virorum de privato Concilio in haec verba These shall be to require you to receive into your charge and custody from the hands of the Lord Major of London the person of S r Henry Carew Knight who was in the late action of trayterous Rebellion and to keep him safely close prisoner untill you shall receive order from us to the contrary Qui traditur in ballium praetextu brevis c. De Termino sanctae Trinitatis primo Iacobi Regis rot 30. Iohannes Brocket mil. per Willielmum Okey custod prisonae de le Gatehouse in Westm. in comitatu praedict virtute brevis Domini Regis de habeas Corpus ad subjiciendum c. Ei inde direct coram Domino Rege apud Westm. duct cum causa viz. Quod ante adventum brevis praedict scilicet ultimo die Martii anno Regni Domini Regis primo praedict Iohannes Brocket mil. praefat custod de le Gatehouse commissus fuit per warrantum privati Concilii Domini Regis cujus tenor sequitur in haec verba To Will. Okey keeper of the prison of the Gatehouse in Westminster These are to will and require you to receive into your charge and custody the person of Iohn Brocket Knight and him to detain in safe keeping under your charge untill you shall have further order for his enlargement whose commitment being for some speciall matter concerning the service of our Sovereign Lord the King you may not fail to regard this our warrant accordingly From the Kings Pallace at Whitehall the last of March 1605. Eaque fuit causa detentionis praedict Marr. Ball. Iohannis in prisona praedict quia committitur Marr.
also to the Nobles and their honourable Progenies to the Bishops and Clergie and their successours to all persons of what condition or sex or age soever to all Judges Officers c. whose attendance are necessary c. without exception of any person Fifth generall reason The fifth is drawn from the indefinitnesse of time the pretended power being limited to no time may be perpetuall during life Sixth generall reason The sixth à damno dedecore from the losse and dishonour of the English Nation in 2 respects First for their valour and prowesse so famous through the whole world Secondly for their industry for who indeavours to apply himself in any profession either of warre liberall science or merchandise c. if he be but Tennant at will of his Liberty And no Tennant at will will support or improve any thing because he hath no certain estate And thus it should be both dedecus and damnum to the English Nation and it should be no honour to the King to be King of slaves Seventh generall reason The seventh is drawn ab utili inutili for that it appeareth by the statute of 36. E. 3. That the execution of the statute of Magna Charta 5. E. 3.25 E. 3. are adjudged in Parliament to be for the profit of the King and of his people Rot. Parl. 36. E. 3. num 9. 20. And therefore this pretended power being against the profit of the King and of his people can be no more part of this prerogative Eighth generall reason The eighth generall reason is drawn à tuto for it is safe for the King to expresse the cause of the commitment 1. E. 2. de frang prison stat unt pasche 18. E. 3. rot 33. coram Rege Bildestons case rot Parl. 28 H. 6. nu 16. Acts Apost cap. 25. v. the last and dangerous for him to omit it for if any be committed without expressing the cause though he escape albeit the truth be it were for treason or felony yet the escape is neither felony nor treason But if the cause be expressed to be for suspition of treason or felony then the escape albeit he be innocent is treason or felony Ninth generall reason The ninth generall reason is drawn from the authorities 16. H. 6. tit Monstrans defaits 182. by the whole Court the King in his presence cannot command one to be arrested but an action of false imprisonment lieth against him that arresteth 22. H. 6.46 Newton 1. H. 7.4 the opinion of Markham Chief Justice to E 4. and the reason because the party hath no remedy Fortescue cap. 18. proprio ore nullus Regum usus est c. to commit any man c. 4. Eliz. Plowd Com. 236. the common Common Law hath so admeasured the Kings prerogative as he cannot prejudice any man in his inheritance and the greatest inheritance a man hath is the Liberty of his person for all other are necessary to it Major haereditas venit unicuique nostrum à jure legibus quam à parentibus 25. E. 1. ca. 2. Confirm Cart. all judgements given against Magna Charta are void Objections Upon Conference with the Lords the objections were made by the Kings Attorney First object That these resolutions of the House were incompatible with a Monarchy that must govern by the state Bracton Answ. Whereunto it was answered that nihiltam proprium est imperii quam legibus vivere And again Attribuat Rex legi quodlex attribuat c. viz. dominationem imperium quia sine lege non potest esse Rex It can be no more prejudice to the King by reason of matter of state for if it be for suspition of treason misprision of treason or felony it may be by generall words expressed viz. pro suspitione proditionis 2 object To blind those that are committed one cause must be pretended and another intended especially when it toucheth matter of state Answ. Whereunto it was answered that all dissimulation especially in the course of Justice was to be avoided and soundnesse of truth to take place and therefore David that was both a King and a Prophet prayed to Almighty God against dissimulation in these words Lord send me a sound heart in thy statutes that I be not ashamed where sound in the originall signifieth upright without dissimulation and shame followeth dissimulation when the truth is known Third object If a Rebell be attainted in Ireland and his children for safety and for matter of state be kept in the Tower what shall be returned upon the Habeas Corpus Whereunto It was answered First that their imprisonment might be justified if they could not find good sureties for their good behaviour Secondly It was charity to find them meat drink and apparell that by the Attainder of their father had nothing Fourth object Though his Majesty expresseth no cause yet it must be intended that there was a just cause Answ. De non apparentibus de non existentibus eadem ratio Fifth object First The King in stead of gold or silver may make money currant of any base metall Secondly He may make warres at his pleasure Thirdly He may pardon whom he will Fourthly He may make denizens as many as he will and these were said to be greater priviledges then this in question Answ. To the first it is denyed that the King may make money currant of base metal but it ought to be gold or silver Secondly It was answered admitting the King might do it his losse and charge was more then of his Subjects both in the case of money and in the case of warre The pardon was private out of grace and no man had dammage or loss by it so of the making of denizens the King was only the looser viz. to have single custome where he had double Thirdly it was a non sequitur The King may do these things ergo he may imprison at will Your Lordships are advised by them that cannot be daunted by fear nor misled by affection reward or hope of preferment that is of the dead By ancient and many Acts of Parliament in the point besides Magna Charta which hath been 30 times confirmed and commanded to be put in execution wherein the Kings of England have thirty times given their Royall assent Secondly Judiciall Presidents per vividas rationes manifest and apparant reasons we in the house of Commons have upon great studie and serious consideration made a grand manifesto unanimously nullo contradicente concerning this great Liberty of the subject and have vindicated and recovered the body of this fundamentall Liberty both of your Lordships of our selves from shadowes which some time of the day are long sometimes short and sometimes long again and therefore no Judges are to be led by them Your Lordships are involved in the same danger and therefore ex congruo condigno we desire a conference to the end your Lordships might make the like declaration as we
have done Commune periculum commune requirit Auxilium and thereupon take such further course as may secure your Lordships and us and all your and our posterities in enjoying of our ancient undoubted and fundamentall Liberties The Argument of Sergeant Bramston upon the Habeas corpus MAy it please your Lordship to hear the return read or shall I open it Chief Iustice Hide Let it be read M r. Keeling read the return being the same as that of Sir Thomas Darnell May it please your Lordship I shall humbly move upon this return in the behalf of Sir Iohn Henningham with whom I am of Councell it is his petition that he may be bailed from his imprisonment it was but in vain for me to move that to a Court of Law which by Law cannot be granted and therefore in that regard that upon his return it will be questioned whether as this return is made the Gent. may be bailed or not I shall humbly offer up to your Lordship the case and some reasons out of mine understanding arising out of the return it self to satisfie your Lordship that these Prisoners may and as their case is ought to be bailed by your Lordship The exception that I take to this return is as well to the matter and substance of the return as to the manner and legall form thereof the exceptions that I take to the matter is in severall respects That the return is too generall there is no sufficient cause shewn in speciall or in generall of the commitment of this Gentleman and as it is insufficient for the cause so also in the time of the first imprisonment for howsoever here doth appear a time upon the second warrant from the Lords of the Councell to detain him still in prison yet by the return no time can appear when he was first imprisoned though it be necessary it should be shewen and if that time appear not there is no cause your Lordship should remand him and consequently he is to be delivered Touching the matter of the return which is the cause of his imprisonment It is expressed to be Per speciale mandatum domini Regis This is too generall and uncertain for that it is not manifest what kind of command this was Touching the Legall form of the return it is not as it ought to be fully and positively the return of the Keeper himself onely but it comes with a significavit or prout that he was committed Per speciale mandatum domini Regis as appeareth by warrant from the Lords of the Councell not of the King himself and that is not good in legall form For the matter and substance of the return it is not good because there ought to be a cause of that imprisonment This writ is the means and the onely means that the subject hath in this and such like case to obtain his liberty there are other writs by which men are delivered from restraint as that de homine replegiando but extends not to this cause for it is particularly excepted in the body of the writ de manucaptione de cantione admittenda but they lie in other cases but the writ of Habeas corpus is the onely means the subject hath to obtain his liberty and the end of this writ is to return the cause of the imprisonment that it may be examined in this Court whether the parties ought to be discharged or not but that cannot be done upon this return for the cause of the imprisonment of this Gentleman at first is so farre from appearing particularly by it that their is no cause at all expressed in it This writ requires that the cause of the imprisonment should be returned if the cause be not specially certified by it yet should it at the last be shewn in generall that it may appear to the Judges of the Court and it must be expressed so farre as that it may appear to be none of those causes for which by the Law of the Kingdome the subject ought not to be imprisoned and it ought to be expressed that it was by presentment or indictment and not upon petition or suggestion made to the King and Lords which is against the statute made in the 25 Ed. 3. c. 4. 42 E. 3. c. 3. By the Statute 25 Ed. 3. cap. 4. It is ordained and established that no man from henceforth shall be taken by petition or suggestion made to the King or his Councell but by indictment or course of Law and acordingly it was enacted 42 E. 3. c. 3. the title of which statute is None shall be put to answer an accusation made to the King without presentment Then my Lord it being so although the cause should not need to be expressed in such manner as that it may appear to be none of these causes mentioned in the statute or else the Subject by this return loseth the benefit and advantage of these Laws which be their birth-right and inheritance but in this return there is no cause at all appearing of the first commitment and therefore it is plain that there is no cause for your Lordship to remand him but there is no cause you should deliver him since the writ is to bring the body and the cause of the imprisonment before your Lordship But it may be objected that this writ of Habeas Corpus doth not demand the cause of the first commitment but of the detaining onely and so the writ is satisfied by the return for though it shew no cause of the first commitment but of detaining onely yet it declareth a cause why the Gentleman is detained in prison this is no answer nor can give any satisfaction for the reason why the cause is to be returned is for the Subjects liberty that if it shall appear a good and sufficient cause to your Lordship then to be remanded if your Lordship think and finde it insufficient he is to be enlarged This is the end of this writ and this cannot appear to your Lordship unlesse the time of the first commitment be expressed in the return I know that in some cases the time is not materiall as when the cause of the commitment is and that so especially returned as that the time is not materiall it is enough to shew the cause without the time as after a conviction or triall had by Law But when it is in this manner that the time is the matter it self for intend what cause you will of the commitment yea though for the highest cause of treason there is no doubt but that upon the return thereof the time of it must appear for it being before triall and conviction had by Law it is but an accusation and he that is onely accused and the accusation ought by Law to be let to bail But I beseech your Lordship to observe the consequence of this Cause If the Law be that upon this return this Gentleman should be remanded I will not dispute whether or no a man may
be imprisoned before he be convicted according to the Law but if this return shall be good then his imprisonment shall not continue on for a time but for ever and the Subjects of this Kingdome may be restrained of their liberties perpetually and by Law their can be no remedy for the Subject and therefore this return cannot stand with the Laws of the Realm or that of Magna Charta Nor with the statute of 28 Ed. 3. ca. 3. for if a man be not bailable upon this return they cannot have the benefit of these two Laws which are the inheritance of the Subject If your Lordship shall think this to be a sufficient cause then it goeth to a perpetuall imprisonment of the subject for in all those causes which may concern the Kings Subjects and are appliable to all times and cases we are not to reflect upon the present time and government where justice and mercy floweth but we are to look what may betide us in the time to come hereafter It must be agreed on all sides that the time of the first commitment doth not appear in this return but by a latter warrant from the Lords of the Councell there is a time indeed expressed for the continuing of him in prison and that appeares but if this shall be a good cause to remand these Gentlemen to prison they may lie there this seven yeares longer and seven yeares after them nay all the dayes of their lives And if they sue out a writ of Habeas corpus it is but making a new warrant and they shall be remanded and shall never have the advantage of the Laws which are the best inheritance of every Subject And in Ed. 6. fol. 36. the Laws are called the great inheritance of every Subject and the inheritance of inheritances without which inheriritance we have no inheritance These are the exceptions I desire to offer to your Lordship touching the return for the insufficiency of the cause returned and the defect of the time of the first commitment which should have been expressed I will not labour in objections till they be made against me in regard the sttatute of Westminster primo is so frequent in every mans mouth that at the Common Law those men that were committed in four cases were not replevisable viz. those that were taken for the death of a man or the commandment of the King or his Justices for the forest I shall speak something to it though I intend not to spend much time about it for it toucheth not this Case we have in question For that is concerning a Case of the Common Law when men are taken by the Kings writs and not by word of mouth and it shall be so expounded as Master Stamford fol. 73. yet it is nothing to this Case for if you will take the true meaning of that statute it extends not at all to this writ of Habeas corpus for the words are plain they shall be replevisable by the Common writ that is by the writ de homine replegiando directed to the Sheriffe to deliver them if they were baileable but the Case is above the Sheriffe and he is not to be Judge in it whether the cause of the commitment be sufficient or not as it appears in Fitz Herbert de homine replegiando and many other places and not of the very words of the statute this is clear for thereby many other causes mentioned as the death of a man the commandment of the Justices c. In which the statute saith men are not replevisable but will a man conceive that the meaning is that they shall not be bailed at all but live in perpetuall imprisonment I think I shall not need to spend time in that it is so plain let me but make one instance A man is taken de morte hominis he is not baileable by writ saith this statute that is by the common writ there was a common writ for this Case and that was called de odio acia as appeareth Bracton Coron 34. this is the writ intended by the statute which is a common writ and not a speciall writ But my Lord as this writ de odio acia was before this statute so it was afterwards taken away by the statute of 28 Ed. 3. cap. 9. But before that sttatute this writ did lie in the speciall Case as is shewn in Brooks 9 th Reports Powlters Case and the end of this writ was that the Subject might not be too long detained in prison as till the Justices of Eyre discharged them so that the Law intended not that a man should suffer perpetuall imprisonment for they were very carefull that men should not be kept too long in prison which is also a Liberty of the Subject and my Lord that this Court hath bailed upon a suspicion of high treason I will offer it to your Lordship when I shall shew you presidents in these cases of a commitment by the Privy Councell or by the King himself But before I offer these presidents unto your Lordship of which there be many I shall by your Lordships favour speak a little to the next exception and that is the matter of the return which I find to be per speciale mandatum domini Regis 8. and what is that it is by this writ there may be sundry commands by the King we find a speciall command often in our Books as in the statute of Marlborough cap. 8. they were imprisoned Rediss shall not be delivered without the speciall command of our Lord the King and so in Bracton De Actionibus the last chapter where it appears that the Kings commandment for imprisonments is by speciall writ so by writ again men are to be delivered for in the case of Rediss or Post Rediss if it shall be removed by a Certiorare is by a speciall writ to deliver parties so that by this appears that by the Kings commandment to imprison and to deliver in those cases is understood this writ and so it may be in this case which we have heard And this return here is a speciall Mandatum it may be understood to be under some of the Kings Seals 42 Ass. and ought to be delivered and will you make a difference between the Kings command under his seal and his command by word of mouth what difference there is I leave it to your Lordships judgement but if there be any it is the more materiall that it should be expressed what manner of command it was which doth not here appear and therefore it may be the Kings command by writ or his command under his Seal or his command by word of mouth alone And if of an higher nature there is none of these commands then the other doubtlesse it is that by writ or under seal for they are of record and in these the person may be bailed and why not in this As to the legall forme admitting there were substances in the return yet
there wants legall form for the writ of Habeas Corpus is the commandment of the King to the Keeper of the prisons and thereupon they are to make return both of the body and of the cause of the commitment and that cause is to appear of them who are the immediate Officers And if he doth it by signification from another that return is defective in Law and therefore this return cannot be good for it must be from the Officer himself and if the cause returned by him be good it bindes the prisoners The warrant of the Lords was but a direction for him he might have made his return to have been expresly by the Kings commandment there was a warrant for it I shall not need to put your cases of it for it is not enough that he returns that he was certified that the commitment was by the Kings command but he must of himself return this fact as it was done And now my Lord I shall offer to your Lordship presidents of divers kindes upon commitments by the Lords of the Privy Councel upon commitments by the speciall command of the King and upon commitments both by the King the Lords together And howsoever I conceive which I submit to your Lordship that our case will not stand upon presidents but upon the fundamentall Laws and Statutes of this Realm and though the presidents look the one way or the other they are to be brought back unto the Laws by which the Kingdome is governed In the first of Henry the eighth Rot. Parl. one Harison was committed to the Marshalsey by the command of the King and being removed by Habeas Corpus into the Court the cause returned was that he was committed per mandatum Domini Regis and he was bailed In the fortieth of Elizabeth Thomas Wendon was committed to the Gatehouse by the commandment of the Queen and Lords of the Councell and being removed by an Habeas Corpus upon the generall return and he was bailed In 8 Iacobi one Caesar was committed by the Kings commandment and this being returned upon his Habeas Corpus upon the examination of this case it doth appear that it was over ruled that the return should be amended or else the prisoner should be delivered The presidents concerning the commitment by the Lords of the Councell are in effect the same with these where the commitment is by the reason why the cause of the commitment should not be shewn holds in both cases and that is the necessity of suit and therefore Master Stamford makes the command of the King and that of the Lords of the Privy Councell to be both as one and to this purpose if they speak he speaks and if he speaks they speak The presidents that we can shew you how the Subject hath been delivered upon commitment by the Lords of the Councell as in the time of Henry the eight as in the times of Queen Elizabeth Queen Mary are infinite as in the ninth of Elizabeth Thomas Lawrence was committed to the Towre by the Lords of the Councell and bailed upon an Habeas Corpus In the 43 of Elizabeth Calvins case In the third of Elizabeth Vernons case These were committed for high treason and yet bailed for in all these cases there must be a conviction in due time or a deliverance by Law There be divers other presidents that might be shewn to your Lordship In 12 Iacobi Mâ—les Renards In 12 Iacobi Rot. 155. Richard Beckwiths case In 4 Iacobi Sir Thomas Monson was committed for treason to the Towre of London and afterwards was brought hither and bailed and since our case stands upon this return and yet there is no sufficient cause in Law expressed in the return of the detaining this Gentleman and since these presidents do warrant our proceedings my humble suit unto this Court is that the Gentleman Sir Iohn Henningham who hath petitioned his Majesty that he may have the benefit of the Law and his Majesty hath signified it it is his pleasure that justice according to the Law should be administred at all times in generall to all his Subjects and particularly to these Gentlemen which is their birth-right My humble suit to your Lordship is that these Gentlemen may have the benefit of that Law and be delivered from their imprisonment The Argument of Master Noye upon the Habeas corpus May it please your Lordship I am of Councell with Sir Walter Earl one of the prisoners at the Barre the return of this writ is as those that have been before they are much of one tenour and as you have heard the tenour of that so this Gentleman coming hither by an Habeas Corpus I will by your Lordships favour read the writ Carolus Dei Gratia Iohanni Lylo Milit Guardian Prison nostrae de le Fleet Salut Praecipimus tibi quod corpus Walteri Earl Milit in prison nostra sub custodia tua detent ut dicit una cum causa detentionis suae quocunque nomine praedict Walter censeat in eadem Habeas Corpus ad subjiciendum recipiendum ea quae curia nostra de eo ad tunc ibidem ordin conting in hac parte haec nallatenus omit periculo incumbent habeas tibi hoc breve Test Hyde apud Westminster quarto die Novembris Anno 8. Executio istius brevis patet in quadam schedula huic brevi annexat Respons Johan Liloe Guardian Prison de le Fleet. Ego Iohannes Lyloe Mil Guardian Prison domini Regis de le Fleet Serenissimo Domino Regi apud Westminster 8. Post receptionem hujus brevis quod in hac schedula est mentionat ' Certifico quod Walter Earl miles in eodem brevium nominat detentus est in prisona de le Fleet sub custodia mea praedict per speciale mandatum domini Regis mihi significatum per VVarrantum duorum aliorum de Privato Concilio per Honorabilissimi dicti Domini Regis cujus quidem tenor sequitur in haec verba Whereas Sir Walter Earl Knight was heretofore committed to your custody these are to will and require you still to detain him letting you know that both his first commitment and this direction for the continuance of him in prison were and are by his Majesties speciall commandment from White Hall 7 Novembris 1627. Thomas Coventree C. S. Henry Manchester Thomas Suffolk Bridgewater Kellie R. Duneln ' Thomas Edmunds Iohn Cook Marlborough Pembrook Salisbury Totnes Grandisson Guliel Bath and Wells Robert Nanton Richard Weston Humphrey Mayes To the Guardian of the Fleet or his Deputy Et haec est causa detentionis praedict Walteri Earl sub custodia mea in Prison praedict Attamen corpus ejusdem Walteri coram Domino Rege ad diem locum praedictum post receptionem brevis praedict pa rat habeo prout istud breve in se exiget requiret Respon Johan Liloe milit Guardian Prison de le Fleet. My Lord the first Habeas corpus bears date the
4 of November then there is an Alias habeas bears Teste after that and the tenour thereof is a command to the Warden of the Fleet quod habeas corpus Walteri Earl coram nobis ad subjiciendum recipiendum ea quae curia nostra de eo c. ordin conting And the Warden of the Fleet he certifies as your Lordship have heard May it please your Lordship I desire as before was desired for the other Gentlemen that Sir Walter Earl may be also bailed if there be no other cause of his imprisonment for if there were a cause certified and that cause were not sufficient to detain him still in prison your Lordship would bail him and if a man should be in worse case when there is no cause certified at all that was very hard The writ is that he should bring the prisoner coram nobis before the King the end of that is ad subjiciendum recipiendum now I conceive that though there be a signification of the Kings pleasure to have this Gentleman imprisoned yet when the King grants this writ to bring the prisoner hither ad subjictendum recipiendum his pleasure likewise is to have the prisoner let go if by Law he be not chargeable or otherwise to detain him still in prison if the case so require it I will put your Lordship in mind of a case and it was Pasch. 9. Ed. 3. M. 3. I will cite by the placita because my Book is not paged as other Books are it is in the case of a Cessavit In that case there were two things considerable the one that there was a signification of the Kings pleasure past and that determined with him the other that though there was a signification of the Kings pleasure before which was yet there comes after that a writ and that was another signification of the Kings pleasure that the prisoner should be brought hither ad subjiciendum to submit himself to punishment if he have deserved it or ad recipiendum to receive his enlargement and be delivered if there be no cause of his imprisonmet And if upon an Habeas corpus a cause of commitment be certified that cause is to be tried here before your Lordship But if no cause be shewn then the proceedings must be ut curia nostra ad mar contigerit the Court must do that which stands with Law and Justice and that is to deliver him My Lord I shall be bold to move one word more touching this return I conceive that every Officer to a Court of Justice must make his return of his own act or of the act of another and not what he is certified of by another But in this case the Warden of the Fleet doth not certifie himself of himself that this Gentleman was commanded to him by the King but that he was certified by the Lords of the Councill that it was the Kings pleasure that he should detain him But in our case the Warden of the Fleet must certifie the immediate cause and not the cause of the cause as it doth by this return Detentus est sub custodia mea per speciale mandatum Domini Regis mihi significatum per Warrantum duorum de Privato Concilio that is not the use in Law but he ought to return the primary cause and not the subsequent cause as in 32 Edw. 3. return Rex vicecom 87. in a writ De homine replegiando against an Abbot the Sheriffe returns that he hath sent to the Bayliffe of the Abbot and he answered him that the party was the Abbots villain and so he cannot deliver him that is held an insufficient return and a new Alias was granted but if the Sheriffe had returned that the Abbot did certifie him so it had been good but he must not return what is certified him by another In one of the presidents that hath been noted as that of Parker 22 Hen. 8. there the Guardian of the prison certifies that Parker detentus est sub custodia mea per mandatum Domini Regis mihi nunciatum per Robertum Pecke now our case is by the Nunciation of many but in Law majus minus non variant in spetione the certification of one and of many is of the same effect although in morall understanding there may be a difference Trin. 2. Ed. 3. Rot. 46. in this Court in 21 Ed. 3. in the printed Book there is a piece of it The Abbot of Burey brings a prohibition out of this Court the Bishop of Norwich pleadeth in Barre of that Quod mihi testificatū quod continetur in Archivis that he is excommunicated there were two exceptions taken to this case in this president and they are both in one case the first was that no case appeareth why he was excommunicated there may be causes why he should be excommunicated and then he should be barred and there may be causes why the excommunication should not barre him for it may be the excomunication was for bringing the action which was the Kings writ and therefore because there was no cause of the excommunication returned it was ruled that it was not good The other reason is that upon the Roll which is mihi testificatum Now every man when he will make a certificate to the Court Proprium factum suum non alterius significare debet he must inform the Court of the immediate act done and not that such things are told him or that such things are signified unto him but that was not done in this case and therefore it was held insufficient and so in this case of ours I conceive the return is insufficient in the form there is another cause my Lord for which I conceive this return is not good But first I will be bold to inform your Lordship touching the Statute of Magna Charta 29. Nullus liber homo capiatur vel imprisonetur c. neo super eum mittimus nisi per legale judicium parium suorum vel per legem terrae That in this Statute these words in Carcerem are omitted out of the printed Books for it should be nec eum in Carcerem mittimus For these words per legem terrae what Lex terrae should be I will not take upon me to expound otherwise then I finde them to be expounded by Acts of Parliament and this is that they are understood to be the processe of the Law sometimes by writ sometimes by attachment of the person but whether speciale mandatum Domini Regis be intended by that or no I leave it to your Lordships exposition upon two petitions of the Commons and answer of the King in 36 Ed. 3. no 9. and no 20. In the first of them the Commons complain that the great Charter the Charter of the Forrest and other Statutes were broken and they desire that for the good of himself and of his people they might be kept and put in execution and that they might not be infringed by making an
arrest by speciall command or otherwise and the answer was that the assent of the Lords established and ordained that the said Charter and other Statutes should be put in execution according to the petitition and that is without any disturbance by arrest by speciall command or otherwise for it was granted as it was petitioned In the same year for they were very carefull of this matter and it was necessary it should be so for it was then an usuall thing to take men by writs quibusdam de causis and many of these words caused many Acts of Parliament and it may be some of these writs may be shewn and I say in the same year they complained that men were imprisoned by speciall command and without indictment or other legall course of Law and they desired that thing may not be done upon men by speciall command against the great Charter The King makes answer that he is well pleased therewith that was the first answer and for the future he hath added farther if any man be grieved let him complain and right shall be done unto him This my Lord is an explanation of the great Charter as also the Statute of 37 Ed. 3. ch 18. is a commentary upon it that men should not be committed upon suggestion made to the King without due proofs of Law against them and so it is enacted twice in one year We find more printed Books as in Henry the sixth Minus de facts Fitz. 182. which is a strong case under favour in an action of Trespasse for cutting down trees the defendant saith that the place where the trees are cut is parcell of the Manor of B whereof the King is seised in fee and that the King did command him to cut them and the opinion of the Court was that this was no good plea without shewing the specialty of the command and they said if the King command me to arrest a man and I arrest him he shall have an action of false imprisonment against me altough it were done in the Kings presence In 1 Ioh. cap. 7. fol. 46. it is in print and there we leave it Hussey Chief Justice saith that Sir Iohn Markham told King Edward the fourth that he could not arrest a man upon suspition of felony or treason as any of his Subjects might because if he should wrong a man by such arrest the parties could have no remedy against him if any man shall stand upon it here is a signification of the Kings pleasure nor to have the cause of the commitment examined he hath here another signification of his pleasure by writ whereby the party is brought hither ad subjiciendum recipiendum that he hath made your Lordship Judge of that that should be objected against this Gentleman and either to punish him or to deliver him and if here be no cause shewn it is to be intended that the party is to be delivered and that it is the Kings pleasure it should be so and the writ is a sufficient warrant for the doing of it there being no cause shewn of the imprisonment and now my Lord I will speak a word to the writ of de homine replegiando and no other writ for that was the common writ and the four causes expressed in that Statue to wit the death of a man the command of the King or his Justices or Forrest were excepted in that writ before that Statute made as appears Bracton 133. so that the writ was at the Common Law before that Statute And it appears by our Books that if a man be brought hither by an Habeas corpus though he were imprisoned De morte hominis as in the 21 of Edward the fourth 7. Winkfield was bailed here this Court bailed him for he was brought hither ad subjiciendum recipiendum and not to lie in prison God knows how long and if the Statute should be expounded otherwise there were no bailing men outlawed or breakers of prisons for they are not within this Statute and yet this Court doth it at pleasure But plainly by the Statute it self it appears that it meant only to the common writ for the preamble recites that the Sheriffs and other have taken and kept in prison persons detected of felony and let out to plevin such as were not reprisable to grieve the one party and to the gain of the other and forasmuch as before this time it was not determined what prisoners were reprisable which not but onely in certain cases were expressed therefore it is ordained c. Now this is no more but for direction of the keepers of the prisons for it leaves the matter to the discretion of the Judges whether bailable or no not of the Judges for when the Statute hath declared who are repleviable who are not as men outlawed have abjured the Realm Proves such as be taken in the manner breakers of prisons burners of houses makers of false money counterfeiting of the Kings Seal and the like it is then ordained that if the Sheriff or any other let any go at large by surety that is not reprisable if he be Sheriff Constable or any other that hath the keeping of prisons and thereof be attainted he shall lose his office and fee for ever so that it extends to the common Goalers and keepers of prisons to direct them in what cases they shall let men to bail and in what cases not and that they shall not be Judges to whom to let to replevin and whom to keep in prison but it extends not to the Judges for if the makers of the Statute had meant them in it they should have put a pain upon them also So then I conclude upon these under your Lordships favour that as this case is there should have been a cause of the commitment expressed for these Gentlemen are brought hither by writ ad subjiciendum if they be charged and ad recipiendum if they be not charged and therefore in regard there is no charge against them whereupon they should be detained in prison any longer we desire that they may be bailed or discharged by your Lordship The Argument of Master Selden upon the Habeas corpus My Lords I am of Councell with Sir Edmond Hampden his case is the same with the other two Gentlemen I cannot hope to say much after that that hath been said yet if it shall please your Lordship I shall remember you of so much as is befallen my lot Sir Edmond Hampden is brought hither by a writ of Habeas corpus and the keeper of the Gate-house hath returned upon the writ that Sir Edmond Hampden is detained in prison per speciale mandatum Domini Regis mihi significatum per Warrantum duorum Privati Concilii dicti domini Regis and then he recites the warrants of the Lords of the Councell which is that they do will and require him to detain this Gentleman still in prison letting him know that his first imprisonment c. May it
and not by way of information out of another mans mouth may not be good as appeareth by the severall books of our law 23 Ed. 3. Rex vic 181. upon a Homine replegiando against the Abbot of C. the Sheriffe returneth that he had sent to the Bailiffe of the Abbot that answered him that he was the villain of the Abbot by which he might not make deliverance and a Sicut alias was awarded for this return was insufficient insomuch that he had returned the answer of the Bailiffe of the Abbot where he ought to have returned the answer of the Abbot himself out of his own mouth Trin. 22. Ed. 2. Rot. 46. parent vill Burg. Evesque de Norwich repl 68. Nat. Br. Case 34. Fitz. Nat. Br. 65. 34. Ed. 3. Excom 29. the case appeareth to be such in a trespasse the defendant pleadeth the plaintiffe is excommunicate and sheweth forth the letter of the Bishop of Lincoln witnessing that for divers contumacies c. and because he had certified no excommunic done by himself but by another the letter of excommunication was annulled for the Bishop ought to have certified his own act and not the act of another Hillarii 22 Hen. 8. Rot. 37. it appeareth by the return of an Habeas corpus that Iohn Parker was committed to prison for security of the peace and for suspicion of felony as per mandatum Domini Regis nunciatum per Robertum Peck de Cliffords Inne and upon his return Iohn Parker was bailed for the return Commiss fuit per speciale mandatum domini Regis nunciatum per Robertum Peck was not good insomuch that it was not a direct return that he was committed per mandatum Domini Regis And for the first point I conclude that this return is insufficient in form insomuch that it doth not make a precise and direct return that he was committed and detained by the speciall command of the King but onely as he was signified by the warrant of the Lords of the Councell which will not serve the turn and upon the book of 9 Hen. 6.44 the return of the cause of a mans imprisonment ought to be precise and direct upon the Habeas corpus insomuch as thereby to be able to judge of the cause whether it be sufficient or not for there may not any doubt be taken to the return be it true or false but the Court is to accept the same as true and if it be false the party must take his remedy by action upon the case And as concerning the matter of the return it will rest upon these parts First whether the return be that he is detained in prison by speciall commandment of our Lord the King be good or not without shewing the nature of the commandment or the cause whereupon the commitment is grounded in the return The second is whether the time of the first commitment by the commandment of the King not appearing to the Court is sufficient to detain him in prison Thirdly whether the imprisonment of the subjects without cause shewed but onely by the commandment of the King be warantable by the laws and statutes of this Realm As unto the first part I find by the books of our law that commandments of the King are of severall natures by some of which the imprisonment of a mans body is utterly unlawfull and by others of them although the imprisonment may be lawfull yet the continuance of him without bail or mainprise will be utterly unlawfull There is a verball command of the King which is by word of mouth of the Kings onely and such commandment by the King by the books of our law will not be sufficient either to imprison a man or to continue him in prison 16.6 Monstrans de faict si upon an action of trespasse brought for cutting of trees the defendant pleadeth that the place where he cut them is parcell of the Manor of D. whereof the King is seised in fee and the King commanded him to cut the trees and the opinion of the Court there is that the plea in barre was ill because he did not shew any speciall commandment of the King and there it is agreed by the whole Court that if the King commandeth one to arrest another and the party commanded did arrest the other an action of trespasse or false imprisonment is maintainable against the party that arrested him although it were done in the presence of the King 39 H. 6.17 where one justifieth the seisure of the goods of a person that is outlawed by the commandment of the King such a party being no Officer may not in an action brought against him have any aid of the King for such a commandment given to one that is not an Officer will not any wayes avail him that is to justifie himself by the return of that commandment 37 Hen. 6.10 If the king give me a thing and I take the same by his commandment by word of mouth it is not justified by law nothing may passe without matter of Record 10 Hen. 7.7 17.18 it is agreed that Justices may command one to arrest another that is in their view or presence but not one that is out of their view or presence And Keble 10 Hen. 7.13 said that where one is arrested by a parroll command in their view or presence it is fitting that a record may be made of it insomuch that without such a record there can hardly be a justification in another Term. Secondly there is a commandment of the King by his Commission which according unto Calvins case in the seventh Report it is called by him breve mandatum non remediabile and by virtue of such a commandment the King may neither seise the goods of his subject nor imprison his body as it is resolved in 42 Ass. pl. 5. where it is agreed by all the justices that a Commission to take a mans goods or imprison his body without indictment or suit of the party or other due processe is against the Law Thirdly there is a commandment of the King which is grounded upon a suggestion made to the King or to his Councell and if a man be committed to prison by such a suggestion by commandment of the King it is unlawfull and not warranted by the Law of the Realm The 25 of Edward the third cap. 4. de Provisoribus whereas it is contained in the great Charter of the Franchises of England that none shall be imprisoned or arrested of his Free-hold or of his Franchises nor of his free customes but by the Law of the land It is awarded consented and established that from henceforth none shall be taken by petition or suggestion made to our Soveraign Lord the King or to his Councell untill it be by indictment or presentment of his good and lawfull neighbours where such deeds are done in due manner or by processe made by writ originall at the common law nor of his free-hold unlesse he be duely brought
in and answer and forejudged of the same by way of Law and if any thing be done against the same it shall be redressed and holden for nought 37 Ed. 3. cap. 10. although it be contained in the great Charter that no man be taken or imprisoned or put out of his freehold without due processe of the law neverthelesse divers persons make false suggestions to the King himself as well for malice as otherwise whereof the King is often grieved and divers of the Realm put in great damages contrary to the form of the same Statute Wherefore it is ordained that all they that make such suggestions be sent with their suggestions to the Chancellour or Treasurer and they and every of them find sureties to pursue their suggestions and endure the same pain that the other should have had if in case that his suggestion be found untrue and that then processe of the law be made against them without being taken or imprisoned against the form of the same Charter and other statutes So that it appears by these severall statutes that such commandments of the King as are grounded upon suggestion either made to himself or to his Councell for the imprisonment of a man are against the law Fourthly I find that there is a commandment of the King which is made under his hand with his signet for in the fourth and the fifth of Philip and Mary Dier 162. where the statute of 1 Rich. 2. cap. 11. restraineth the Warden of the Fleet for letting any man at large that is in upon judgement at the suit of any man except it be by writ or other commandment of the King It was doubted whether the Queen by letter under her hand and privy signet doth give commandment to the Warden of the Fleet to suffer a man that is there in execution to go about his businesse or the affaires of the Queen whether this be a warrantable command or not within the Statute and the Law hath alwayes been conceived upon that book that such a commandment is not warrantable by Law and if such a command will not serve the turn to give unto a man his liberty which the Lord favoureth and had the countenance of an Act of Parliament for the doing of it then I conceive it should be a more strong case the King should not have power by his commandment to imprison a man without due processe of the Law and restrain him of his liberty when there had been so many Acts of Parliament made for the liberty of the subjects Fifthly I do find that there is the commandment of the King which is by his writ under the Great Seal or the seal of the Court out of which it issueth Regist. f. 69. 70. in the writ de cautione admittenda I find the words mandatum Regis expounded to be breve Regis for the writ goeth Rex vic Salutem Cum nuper ad requisitionem S. de Isle Canonici Lincol. venerabilis Patris H. Lincoln Episcopi ipso in remotis agente Vicarii general per Literas suas patentes nobis significantis Nicho. B. dict Lincoln Dioc. propter manifestam contumaciam Authoritate ipsius Episcopi Ordinar excommunicat esse nec si velle c. vobis praeceperimus quod praefat c. satisfactum ex parte ipsius N. qui virtute mandati nostri praedict per vos Capt. in Prison nostra de Newgate detent existit c. nos nolentes quod praefat N. per breve nostrum praedict via praecludatur c. prosequi possit in forma Iuris maxim c. integer esse debeat vobis praecipimus quod scire c. quod sit c. quare praedict N. à Prisona praedict deliberari non debeat Rex Iusticiar suis de Banco salut Cum nos nuper ad significationem S. de Isle c. usque ibi excommunicat extitisse nec se velle c. esset satisfactum ex parte ipsius N. virtute mandati nostri praed capt in Prisona nostra de Newgate tunc detenti c. nolentes eo praetextu praefato N. per breve nostrum praed via praecludat quo minus appellac suae negotium c. processerat appellant statut c. per breve nostrum praeceperimus praefat vic quod scire facerent c. signific consult circumspect in Placitis per breve praedict coram vobis pendentibus procedere valeatis secundum legem consuetudinem Regni nostri Stamf. 72.5 E. 3. c. 8. 1 E. c. 3.9 saith that every Capias in a personall action is a Commandment of the King for it is Praecipimus tibi quod capias c. and yet the defendant as there it is said is replevisable by the Common Law 7 R. 20. a. Calvins case saith that there are two kind of writs viz. brevia mandatoria remedialia brevia mandatoria non remdeialia breuia mandatoria remedialia are writs of Right Formedon c. debts trespasses and shortly all writs reall and personall whereby the party wronged is to recover somewhat and to be remedied for that wrong which is done unto him Sixthly I do finde by our books of Law and by the Register that this speciall mandatum domini Regis is expounded to be his writ and that the Law taketh no notice of any other speciale mandatum then by this writ the which being so when the return is made that he is imprisoned and detained in prison by the speciall commandment of the King how can the Court adjudge upon this return that Sir Iohn Corbet ought to be kept in prison and not to be bailed when the nature of the speciall commandment is not set forth in the return whereby it may appear unto the Court that he is not bailable In Bracton c. 12.112 you shall see a writ reciting Praecipimus tìbi quod non implacites nec implacitari permittas talem de libero tenemento suo in tali villa sine speciali praecepto nostro vel Capitalis Iusticiar nostri And the reason of it there is given quia nemo de libero tenemento sine brevi sive libello conventionali nisi gratis voluerit respondebit So as the exception of speciall commandment by the very book appeareth to be breve sive libellus conventionalis Regist. 271. the writ of Manucaption goeth in this manner Rex vic Salut Cum nuper assignaverimus dilectos fideles nostros A. B. C. D. ad inquisitiones de forstallariis transgressionibus contra formam statuti dudum apud Winton editi in com tuo faciend ad illos quos inde culpabiles invenirent capiend in Prisona nostra salvo custod faciend donec aliud inde praecepissemus quod C. D. E. pro hujusmodi forstallamentis transgressionibus unde coram praefat A. B. C. indict fuerint capt in Prisona de L. detent exist à qua delibera ri non possunt sine mandato nostro
the Privy Councell is a limited jurisdiction for they have no power in all causes their power being restrained in certain causes by severall Acts of Parliament as it appeareth by the statute of 20 Edward the third c. 11. 25 Ed. the third c. 1. stat 4. the private petition in Parliament permitted in the 1 of R. 2. where the Commons petition that the Privie Councell might not make any Ordinance against the Common Law Customes or Statutes of the Realm the fourth of Henry the fourth ca. 3. 13 Hen. the fourth 7. 31 Henry the sixth and their jurisdictions being a limited jurisdiction the cause and grounds of their commmitment ought to appear whereby it may appear if the Lords of the Councell did commit him for such a cause as was within their jurisdiction for if they did command me to be committed to prison for a cause whereof they had not jurisdiction the Court ought to discharge me of this imprisonment and howsoever the King is Vicarius Dei in terra yet Bracton cap. 8. fol. 107. saith quod nihil aliud potest Rex in terris cum sit Minister Dei Vicarius quam solum quod de jure potest nec obstat quod dicitur quod Principi placet legis habet vigorem quia sequitur in fine legis cum lege Regia quae de ejus imperio lata est id est non quicquid de voluntate Regis temere praesumptum est sed animo condendi Iura sed quod consilio Magistratuum suorum Rege author praestant habita super hoc deliberatione tract rect fuer definit Potestat itaque sua juris est non injuriae The which being so then also it ought to appear upon what cause the King committeth one to prison whereby the Judges which are indifferent between the King and his Subjects may judge whether his commitment be against the Laws and Statutes of this Realm or not Thirdly it is to be observed that the Kings command by his Writ of Habeas corpus is since the commandment of the King for his commitment and this being the latter commandment ought to be obeyed wherefore that commanding a return of the body cum causa detentionis there must be a return of some other cause then Per mandatum domini Regis the same commandment being before the return of the Writ Pasch. 9. E. 3. pl. 30. fol. 56. upon a Writ of Cessavit brought in the County of Northumberland the Defendants plead That by reason the Country being destroyed by Warres with the Scots King Edward the second gave command that no Writ of Cessavit should be brought during the Warres with Scotland and that the King had sent his Writ to surcease the Plea and he averreth that the Warres with Scotland did continue Hearle that giveth the Rule saith That we have command by the King that now is to hold this Plea wherefore we will not surcease for any writ of the King that is dead and so upon all these reasons and presidents formerly alledged I conclude that the return that Sir Iohn Corbet was committed and detained in prison Per speciale mandatum domini Regis without shewing the nature of the commandment by which the Court may judge whether the commandment be of such a nature as he ought to be detained in prison and that without shewing the cause upon which the commandment of the King is grounded is not good As unto the second part which is Whether the time of the commitment by the return of the Writ not appearing unto the Court the Court ought to detain him in prison or no I conceive that he ought not to be continued in prison admitting that the first commitment by the command of the King were lawfull yet when he hath continued in prison by such reasonable time as may be thought fit for that offence for which he is committed he ought to be brought to answer and not to continue still in prison without being brought to answer For it appears by the Books of our Laws that liberty is a thing so favoured by the Law that the Law will not suffer the continuance of a man in prison for any longer time then of necessity it must and therefore the Law will neither suffer the party Sheriffs or judges to continue a man in prison by their power and their pleasure but doth speed the delivery of a man out of prison with as reasonable expedition as may be And upon this reason it is resolved in 1 2 El. Dyer 175. 8 Ed. 4.13 That howsoever the Law alloweth that there may be no term between the rest of an originall Writ and the return of the same where there is onely a summons and no imprisonment of the body yet it will not allow that there shall be a term between the rest of a Writ of Capias and the return of the same where the body of a man is to be imprisoned insomuch that it will give no way that the party shall have no power to continue the body of a man imprisoned any longer time then needs must 39 E. 3.7 10 H. 7.11 6 E. 4.69 11 E. 4.9 48 E. 3.1 17 E. 3.1 2 Hen. 7. Kellawaies Reports do all agree that if a Capias shall be awarded against a man for the apprehending of his body and the Sheriffe will return the Capias that is awarded against the party a non est inventus or that languidus est in prisona yet the Law will allow the party against whom it is awarded for the avoiding of his corporall pennance and dures of imprisonment to appear gratis and for to answer For the Law will not allow the Sheriffe by his false return to keep one in prison longer then needs must 38 Ass. pl. 22. Brooks imprisonment 100. saith That it was determined in Parliament that a man is not to be detained in prison after he hath made tender of his fine for his imprisonment therefore I desire your Lordship that Sir Iohn Corbet may not be kept longer in durance but be discharged according to the Law The substance of the Objections made by Mr. Attorney General before a Committee of both Houses to the Argument that was made by the House of Commons at the first conference with the Lords out of Presidents of Record and Resolutions of Iudges in former times touching the Liberty of the person of every Freeman and the Answers and Replies then presently made by the House of Commons to these Objections AFter the first conference which was desired by the Lords and had by a Committee of both houses in the painted Chamber touching the Reasons Laws Acts of Parliament and Presidents concerning the Liberty of the person of every Freeman M r Attorney General being heard before the Committee of both houses as it was assented by the house of Commons that he might be before they went up to the conference after some preamble made wherein he declined the answering all Reasons of Law
examination and deliberation taken by them And it was observed to the Lords also that their confidence herein was of another nature and far greater weight then any confidence that could be expressed by M r. Attorney or whomsoever else being of his Majesties Councel learned To which purpose the Lords were desired to take into their Memory the difference between the present quality of the Gentlemen that spake in behalf of the House of Commons and of the Kings learned Councel in their speaking there howsoever accidentally they were both men of the same profession For the Kings Councel spake as Councel perpetually retained by Fee and if they made glosses and and what advantagious Interpretations soever for their own part they did but what belonged to their place and quality as M r. Attorney had done But the Gentlemen that spake in behalf of the House of Commons came there bound on the one side by the trust reposed in them by their Countrey that sent them and on the other bound also by an Oath taken by every of them before they sit in the House to maintain and defend the rights and prerogatives of the Crown So that even in the point of confidence alone that of them that spake as retained Councel by perpetual Fee and might by their place being permitted to speak say what they would and that of them that spake as bound to nothing but truth but by such a trust and such an Oath were no way to be so compared or Counterpoised as if the one of them were of no more weight then the other And then the Objections before mentioned were also answered For that of the resolution of all the Judges of England in 34. Eliz. It was shewed plainly it agreed with the resolution of the House of Commons For although indeed it might have been expressed with more perspicuity yet the words of it as they are sufficiently shew that the meaning of it is no otherwise To that purpose besides the words of the whole frame of this resolution of the Judges as it is in the Coppy transcribed out of the Lord Chief Justice Andersons book written in his own hand which book was there offered to be shewed also in behalf of the House of Commons It was observed that the Records of the first part of it shew plainly that all the Judges of England then resolved that the Prisoners spoken of in the first part of their resolution were onely Prisoners committed with cause shewed for they onely said they might not be delivered by any of the Courts without due Trial by Law and Judgement of acquital had which shews plainly that they meant that by trial and acquital they might be delivered but it is clear that no trial or acquital can be had where is not some cause laid to their charge for which they ought to stand committed Therefore in that part of the resolution such Prisoners are onely meant as are committed without cause shewed which also the Judges in that resolution expresly thought necessary as appears in the second part of the resolution wherein they have these words If upon Return of the Habeas Corpus the cause of their commitment be certified to the Judges as it ought to be c. by which words they shew plainly that every return of a commitment is insufficient that hath not a cause shewed of it And to that which M r. Attorney said as if the cause were sufficiently expressed in generality if the Kings Command or the Councels were expressed in it and as if that were meant in the resolution for a sufficient general cause it was answered That it was never heard of in Law that the power or Person that committed the Prisoner was understood for the Causa captionis or Causa detentionis but onely the reason why that Power or Person committed the Prisoner as also in common speech if a man ask why and for what cause a man stands committed the answer is not that such a one committed him but his offence or some other cause is understood in the question and is to be shewed in the Answer But to say that such an one committed the Prisoner is an answer to the question who committed him and not why or for what cause he stands committed Then for that of the Coppy of the Report of 13. Iac. shewed forth by Mr. Attorney it was answered That the Report it self which had been before seen and perused among many other things at a Committee made by the House was of sleight or no Authority for that it was taken by one that was at that time a young Student onely and was a Reporter in the Kings-bench and there was not any other Report to be found that agreed with it Secondly although the Reports of young Students when they take the words of Judges as they fall from their mouth at the Bench and in the Person and form as they are spoken may be of good credit Yet in this Case there was not one word so reported but in truth there being three Cases a time in the Kings-bench one Ruswell and one Allen and one Saltonstall every of which had something of like nature in it the Student having been present in the Court made up the form of one Report or Case out of all those three in his own words and so put it into his book so that there is not a word in the Report but is framed according to the Students fancie as it is written and nothing is expressed in it as it came from the mouth of the Judges otherwise then his fancie directed him Thirdly there are in the Report plain falshoods of Matter of Fact which are to be attributed either to the Judges or to the Reporter It is most likely by all reason that they proceeded from the Reporters fault but however those Matters of falshood shew sufficiently that the credit of the rest is of slight value for the purpose It is said in the Report that Harecourt being committed by the Councel was bayled in 40. Eliz. upon a privy Seal or a Letter where as there was no such thing in truth And it is said there that no such kinde of Letters are filed there in any case whatsoever That resolution of the Judges in 34. is miscited there and in 36. of Queen Eliz. and it is said there that by that resolution a Prisoner returned to be committed by the command of the Councel might not at all be delivered by the Court whereas no such thing is comprehended in in that resolution But that which is of most moment is that howsoever the truth of the report were yet the opinion of the Judges being sudden without any debate had of the case is of sleight moment For in difficult points especially the gravest and most learned men living may on the sudden let fall and that without disparragement to them such opinions as they may well and ought to change upon further enquiry and examination and full debate had
have declared a man to be irreprieveable when he is committed by the Command of the King if the Law-makers had conceived that his commitment had been unlawfull And Divine truth informs us that the Kings have their power from God the Psalmist calling them the children of the most High which is in a more special manner understood then of other men for all the Sons of Adam are by election the Sons of God and all the Sons of Abraham by recreation or regeneration the Children of the most High in respect of the power which is committed unto them who hath also furnished them with ornaments and arms fit for the exercising of that power and hath given them Scepters Swords and Crowns Scepters to vestitute and Swords to execute Laws and Crowns as Ensigns of that power and dignity with which they are invested shall we then conceive that our King hath so far transmitted the power of his Sword to inferiour Magistrates that he hath not reserved so much Supream power as to commit an Offender to prison 10. H. 6. fol. 7. It appears that a Steward of a Court Lect may commit a man to prison and shall not the King from whom all inferior power is deduced have power to commit We call him the fountain of Justice yet when these streams and rivolets which flowe from that Fountain come fresh and full we would so far exhaust that Fountain as to leave it dry but they that will admit him so much power do require the expression of the cause I demand whether they will have a general cause alleadged or a special if general as they have instances for Treason Fellony or for Contempt for to leave fencing and to speak plainly as they intend it If loan of money should be required and refused and thereupon a commitment ensue and the cause signified to be for a contempt this being unequal inconvenience from yielding the remedy is sought for the next Parliament would be required the expression of the particular cause of the commitment Then how unfit would it be for King or Councel in Cases to express the particuler Cause it s easily to be adjudged when there is no State or pollicy of government whether it be Monarchal or of any other frame which have not some secrets of State not communicable to every vulgar understanding I will instance but one If a King imploy an Ambassadour to a Forreign Countrey of States with instructions for his Negotiation and he pursue not his instructions whereby dishonour and dammage may ensue to the Kingdom is not this commitment And yet the particuler of his instruction and the manner of his miscarrying is not fit to be declared to his Keeper or by him to be certified to the Judges where it is to be opened and debated in the presence of a great audience I therefore conclude for offences against the State in Case of State Government the King and his Councel have lawfull power to punish by imprisonment without shewing particuler cause where it may tend to the disclosing of State-Government It is well known to many that know me how much I have laboured in this Law of the Subjects Liberty very many years before I was in the Kings service and had no cause then to speak but to speak ex animo yet did I then maintain and publish the same opinion which now I have declared concerning the Kings Supream power in matters of State and therefore can not justly be censured to speak at this present onely to merit of my Master But if I may freely speak my own understanding I conceive it to be a question too high to be determined by any legal direction for it must needs be an hard case of contention when the Conquerour must sit down with irreparable losses as in this Case If the Subject prevails he gains Liberty but looseth the benefit of that State-Government by which a Monarchie may soon become an Anarchie or if the State prevails it gives absolute Soveraignty but looseth Subjects not their subjection for obedience we must yield though nothing be left us but prayers and tears but yet looseth the best part of them which is their affections whereby Soveraignty is established and the Crown formerly fixt on his Royal head between two such extreams there is not way to moderate but to finde a medium for the accommodation of the difference which is not for me to prescribe but onely to move your Lordships to whom I submit After Mr. Serjeant his speech ended my Lord President said thus to the Gentlemen of the House of Commons That though at this free conference Liberty was given by the Lords to the Kings Councel to speak what they thought fit for his Majesty Yet Mr. Serjeant Ashley had no Authority or direction from them to speak in that manner he hath done M r. NOYE his Argument the 16. of April 1628. HE offered an answer to the inconveniences presented by M r. Attorney which were 4. in Number First where it was objected that it was inconvenient to express the cause for fear of divulging Arcana Imperii for hereby all may be discovered and abundance of Traitors never brought to Justice To this that Learned Man answered That the Judges by the intention of the Law are the Kings Councel and the secrets may safely be committed to all or some of them who might advise whether they will bayl him and here is no danger to King or subjects for their Oath will not permit them to reveal the secrets of the King nor yet to detain the Subjects long if by Law he be to be bayled Secondly for that Objection of the Children of Odonell he laid this for a ground that the King can do no wrong but in Cases of extream necessity we must yield sometimes for preservation of the whole State ubi unius damnum utilitate publica rependitur he said there was no trust in the Children of Traitours no wrong done if they did tabe facere or marcesere in Carcere It is the same Case of necessity as when to avoid the burning of a Town we are forced to pull down an honnest mans House or to compell a man to dwell by the Sea-side for defence or fortitude Yet the King cannot do wrong for potentia juris est non injura Ergo the Act of the King though to the wrong of another is by the Law made no wrong as if he commanded to be kept in Prison yet he is responsal for his wrong he quoted a book 42.6 Ass. Port. Thirdly the instance made of Westminster First he said there was a great difference between those 3. Mainprize Bail and Replevin The Statute saith a man cannot be repleiued Ergo not bayled non sequitur Maniprize under pain Bayl body for body no pain ever in Court to be declared Replevin neither by surety nor bayl of Replevin never in Court the Statute saith a man cannot be Repleiued Ergo not bayled non sequitur Fourthly where it
is said that bayl is ex gratia he answers that if the Prisoner comes to Habeas Corpus then it is not ex gratia Yet the Court may advise but mark the words ad subjiciendum recipiendum prout Curia consideraverit now it is impossible the Judges should do so if no cause be expressed for it they know no cause he may bring the 1.2.3 and fourth Habeas Corpus and so infinite till he finde himself a perpetual Prisoner so that no cause expressed is worse for a man then the greatest cause or Villany that can be imagined and thus far proceeded that learned Gentlemen M r. GLANVILES Argument HE said that by favour of the House of Commons he had liberty to speak if opportunity were offered he applies his answer to one particuler of M r. Attorney who assigned to the King 4. great trusts 1. of War 2. Coins 3. Denizens 4. Pardons Is assented unto that the King is trusted with all these 4. legal Prerogatives but the Argument followeth not the King is trusted with many Prerogatives Ergo in this non sequitur non est sufficiens enumeratio partium he said he could answer these particulars with 2. rules whereof the first should wipe of the first and the second and the other the third and fourth The first rule is this there is no fear of trusting the King with any thing but the fear of ill Councel the King may easily there be trusted where ill Councel doth not ingage both the King and Subjects as it doth in matter of War and Coin If he miscarry in the Wars it is not alwayes pecuum Achiro but he smarts equally with the people If he abase his Coin he looseth more then any of his people Ergo he may safely be trusted with the flowers of the Crown War and Coin The second rule he began was this when the King is trusted to confer grace it is one thing but when he is trusted to infer an injury it is another matter The former power cannot by miscouncelling be brought to prejudice another The latter may if the King pardoneth a guilty Man he punisheth not a good subject if he denizen never so many strangers it is but damnum sine injuria we allow him a liberty to confer grace but not without cause to infer punishment and indeed he cannot do injury for if he command to do a Man wrong the command is void alter fit Author and the Actor becomes the wrong doer Therefore the King may be safely trusted with War Coin Denizens and Pardons but not with a power to imprison without expression of Cause or limmitation of time because as the Poet tells us Libertas potius auro The Answer of the Judges for matter of Fact upon the HABEAS CORPUS 21. April THe Chief Justice saith they are prepared to obey our Command but they desire to be advised by us whether they being sworn upon penalty of forfeiting Body Lands and Goods into the Kings hands to give an account to him may without Warrant do this The Duke said he had acquainted the King with the business and for ought he knoweth he is well content therewith But for better assurance he hath sent his brother of Anglesey to know his pleasure Devonshire saith if a complaint be made by a mean Man against the greatest Officer in this place he is to give an account of his doings to this House Bishop of Lincoln saith this motion proceeded from him and so took it for clear that there was an appeal from the Chancery to a higher Court then the Kings-bench and in that Court hath ever given an account of their doings The Lord Say saith he wondred there should be any question made of this business because in his opinion this being the highest Court did admit of no appeal The President said the Judges did not do this by way of appeal but as the most common way for them this being a matter concerning the Kings prerogative Lord Say saith if they will not declare themselves we must take into consideration the point of our priviledge The Duke saith this was not done by the Judges as fearing to answer but of respect to the King And now his brother was come with answer from the King that they might proceed Order was taken that this passage should not be entered into the Journal Book and so Judge WHITLOCK spake MY Lords we are by your appointment here ready to clear any aspersion of the House of Commons in their late presentment upon the Kings-bench that the Subject was wounded in this Judgement there lately given If such a thing were my Lords your Lordships not they have the power to question and Judge the same But my Lords I say there was no Judgement given whereby either the prerogative might be inlarged or the eight of the subject trenched upon It is true my Lords in Michaelmas Term last fower Gentlemen petitioned for a Habeas Corpus which they obtained and Councel was assigned unto them the return was per spialem mandatum Domini Regis which likewise was made known unto us under the hands of eighteen privy Councellours Now my Lords if we had delivered them presently upon this it must have been because the King did not shew cause wherein we should have judged the King had done wrong and this is beyond our knowledge for he might have committed them for other matters then we could have imagined But they might say thus they might have been kept in Prison all their dayes I answer no but we did remit them that we might better advise of the matter and they the next day might have had a new Writ if they had pleased but they say we ought not to have denied bayl I answer if we had done so it must needs have reflected upon the King that he had unjustly imprisoned them and it appears in Dyer 2. Eliz. that divers Gentlemen being committed and requireing Habeas Corpus some were bayled others remitted whereby it appears much is left to the discretion of the Judges For that which troubleth so much remittitur quousque this my Lords was onely as I said before to take time what to do and whereas they will have a difference betwixt remittitur and remittitur quousque my Lords I confess I can finde none but these are new inventions to trouble old Records And herein my Lords we have dealt with knowledge and understanding for had we given a Judgement the party must thereupon have rested every Judgement must come to an issue in matter in fact or demur in point of Law here is neither therefore no Judgement For endeavouring to have a Judgement entered it is true Mr. Attorney pressed the same for his Masters service but we being sworn to do right betwixt the King and his subjects commanded the Clark to make no entry but according to the old form and the rule was given by the Chief Justice alone I have spent my time in this Court and I
speak confidently I did never see nor know by any Record that upon such a Retorn as this a man was bayled the King not first consulted with in such a Case as this The Commons House do not know what Letters and Commands we receive for these remain in our Court and were not viewed by them for the rest of the Matters presented by the House of Commons they were not in agitation before us whether the King may commit and how long he may detain a man committed therefore having answered so much as concerneth us I desire your Lordships good constructions of what hath been said Iudge IONES SAid he was here to deliver before us what judgement was given before them concerning the Habeas Corpus he answered no Judgement was given and the Matter of Fact was such as my brother delivered unto you yesterday These 4. Gentlemen were committed to the Fleet-Gate-House and Marshall of the Kings House-hold 4. Returns were made upon the Writs and every one of them had a Councellour appointed who had Coppies of the Returns A rule was granted their Councel heard and exception taken to the Return because it did not shew cause of their caption These were of no force in the opinion of the Judges the next exception was because no cause of their commitment was shewed which the Judges held to be all one in point of Law Then my Lords they alleadged many Presidents and Statutes of themselves which the Kings Attorney answered That Persons committed by the King or Councel were never bayled but his pleasure was first known We agreed at the Chamber of the Chief Justice that all the Statutes alleadged are in force but whether we should bayl them or no was the question therefore we remitted them quousque After which Mr. Attorney required a Judgement might be entered I commanded the Clark he should not suffer any such thing to be done because we would be better advised But some will say our Act is otherwise I answered no for we have done no more then we do upon ordinary Writ when we purpose to be better advised and that was onely an Interlocutorie order But my Lords put the case a Habeas Corpus should be granted for one that is committed by the House of Commons would they thinck you take it well he should be bayled at his first coming to the Court I thinck they would not and I thinck the King would have done so in this case now my Lords there is a Petition of Right and a Petition of Grace to be bayled is a matter of Grace therefore if a man be brought upon an Habeas Corpus and not bayled he cannot say the Court hath done him any wrong I have now served seven years Judge in this Court and my conscience beareth me witness that I have not wronged the same I have been thought sometimes too forward for the Liberty of the Subject I am my self Liber homo my Ancestors gave their voice with Magna Charta I enjoy that House still which they did I do not now mean to draw down Gods wrath upon my posterity and therefore I will neither advance the Kings prerogative nor lessen the Liberty of the Subject to the danger of either King or People this is my profession before God and your Lordships Iudge DODDERIDGE SAith it is no more fit for a Judge to decline to give an account of his doings then for a Christian of his Faith God knoweth I have endeavoured alwayes to keep a good conscience for a troubled one who can bear the Kingdom holds of none but God and Judgements do not pass privately in Chambers but publick in Court where every one may hear which causeth Judgement to be given with maturity Your Lordships have heard the particulers delivered by my brethren how that Councel being assigned to those 4. Gentlemen in the latter end of Michaelmass Term their Cause received hearing and upon consideration of the Statutes and Records we found some of them to be according to the good old Law of Magna Charta but we thought that they did not come so close to this Case as that bayl should be thereupon presently granted My Lords the Habeas Corpus consisteth of 3. parts the Writ the Return upon the Writ or schedule and the Entry or rule reciting the Habeas Corpus and the Return together with the opinion of the Court either a remittitur or traditur in ballium In this Case a remittitur was granted which we did that we might take better advisement upon the Case and upon the remittitur my Lords they might have had a new Writ the next day and I wish they had because it may be they had seen more and we had been eased of a great labour And my Lords when the Attorney upon the remittitur pressed an Entry we all straitly charged the Clark that he should make no other Entry then such as our Predecessors had usually made in like Cases for the difference my Lords betwixt remittitur and remittitur quousque I could never yet finde any I have now sat in this Court 15. years and I should know something surely if I had gone in a Mill so long dust would cleave to my cloaths I am old and have one foot in the grave therefore I will look to the better part as near as I can But omnia habere in memoria in nullo errare divinum potiùs est quam humanum THE LORD CHIEF IUSTICE SAith he shall not speak with confidence unless he might stand right in the opinion of the House and protested what he spake the day before was not said by him with any purpose to trench upon the Priviledges of this House but out of that respect which by his place he thought he owed to the King he said concerning the point he was to speak of that he would not trouble the Lords with things formerly repeated wherein he concurred with his brethren He said if it were true the King might not commit they had done wrong in not partly delivering for my Lords saith he these Statutes and good Laws being all in force we meant not to trench upon any of them most of them being Commentaries upon Magna Charta but I know not any Statute that goeth so far that the King may not commit Therefore justly we think we delivered the interpretation thereof to that purpose for my Lords Lex terrae is not to be found in this Statute they gave me no example neither was there any Cause shewed in the Return A President my Lords that hath run in a storm doth not much direct us in point of Law and Records are the best Testimonies These Presidents they brought being read we shewed them wherein they were mistaken if we have erred erramus cum Patribus and they can shew no President but that our Predecessors have done as we have done sometimes bayling sometimes remitting sometimes discharging Yet we do never bayl any committed by the King or his Councel
then by giving a confirmation upon this occasion we have bettered our Case very much Thirdly have not the Judges in the Kings-bench in open Parliament upon our complaint disclaimed to have given any Judgement in the point which generally before by the Parliament was otherwise conceived for now they say it was but an Award and no Judgement Will such a Notorious Act upon so important an occasion in so publick a place be quickly forgotten Nay will not the memorie of it for ever remain upon Records is not our Case then much better then when we came hither Fourthly will not the resolution of this House and all our Arguments and reasons against imprisonment without a Cause expressed which no doubt by the course we have taken will be transferred to posterity be a great means to stay any Judge hereafter for declaring any Judgement to the contrary especially if there be likelyhood of a Parliament is not our Case in this very much amended Lastly have we not received Propositions from the Lords wherein amongst other things they declared that they are not out of love with our proceedings is not this a great strenghtning to it but after so long debate amongst them about it they cannot take any just exception to it and doth not this also much amend our Case From all these reasons I conclude that the second Objection that by a confirmation we are in no better case then when we came together is also a weak Objection Now for reasons to move us to proceed in this course of accepting a confirmation First we have his Majesties gracious promise to yield to a confirmation of the old Laws from which we may rest most assured he will not depart If we tender him with all our Proposition to be enacted we have cause to doubt that we shall loose both the one and the other Secondly we are no less assured of the Lords joyning with us for in their Propositions sent to us they have delivered themselves to that purpose This is then a secure way of getting somewhat of great advantage to us as we have great hopes and in a manner assurance on this side So on the other side we have great doubts and fears that by offering our resolution to be enacted we shall loose all For first we have had already experience of the Lords that they are not very foreward to joyn with us in a Declaration of our Proposition to be Law If they stumble at a Declaration much more will they in yielding to make Law in the same point And have we not much more cause to doubt that his Majesty will not yield unto it seeing it toucheth him so near Is it not the notice of his pleasure that hath wrought thus with the Lords If we should clog our Bill with our Proposition and it should be rejected by the Lords or by the King is not our resolution much weakned by it And are we not then in far worse case then before we made it Our resolution for the rejecting of our Proposition will tend to a Justification of all that hath been done against us in this great point of our Liberty Let us then like wise-men conform our desire to our hopes and guide our hopes by probabilities other desires and other hopes are but vain This is my poor opinion in this weighty business Secretary COKES Message 1. May 1628. Mr. Speaker I Have a very short message to deliver from his Majesty that shews both his Royal care to be rightly understood of this House and no less care to understand us in the best part and to shew clearly it shall not be his fault if this be not a happy Parliament His Majesty hath commanded me to desire this House clearly to let him know whether they will rest upon his Royal word and promise made at several times and especially by my Lord Keepers Speech made in his own presence which if they do he doth assure you that it shall be royally and really performed After speaking of himself and the nature of his place under his Majesty he proceeded in these words GIve me leave freely to tell you that I know by experience that by the place I hold under his Majesty if I will discharge the duty of my place and the Oath I have taken to his Majesty I must commit and neither express the cause to the Jaylor nor to the Judges nor to any Councellour in England but to the King himself yet do not think I go without ground of reason or take this power committed to me to be unlimmitted Yea rather it is to me a charge burthen and danger for if I by this power shall commit the poorest porter if I do it not upon a just cause if it may appear the burthen will fall upon me heavier then the Law can inflict for I shall loose my credit with his Majesty and my place And I beseech you consider whether those that have been in the same place have not committed freely and not any doubt made of it nor any complaint made by the Subject Veneris 2. May 1628. A Report was this day made from the grand Committee for grievances concerning the cause of Nicholas Clegat Cittizen and Vintner of London imprisoned by the Lord Major and Aldermen of the said Citie for refusing to lend a certain summe of money assessed upon him by the Company of Vintners of London whereof he is free towards the proportion of money imposed upon the Company by an Act of Common-Councel of the said Citie in pursuance of a contract of Land with his Majesty By which report it appeared that the said grand Committee had unanimously agreed that the said Citie might make Acts of Councel so as they were consonant to Law and reason and for regulating and deciphering of trade agreeable to reason and the Law of the Realm and might leavy money of the Cittizens by Act of Common-Councel for building or repairing of their Walls Gates or making or cleansing of Sewers or other like causes tending to the general and publick good and welfare of the Citie or towards Triumphs or other like occasions tending to the Honour of the Citie in general but could not by such Act of Common-Councel tax or leavy money towards the purchasing of Lands or other like occasions forreign to the government of the Citie Whereupon it is resolved by the House of Commons super totam materiam that the said Commitment of the said Nicholas Clegat was unlawfull and that a Petition should go from the House to his Majesty for the inlargement of the said Nicholas Clegat his commitment by the Lord Major and Aldermen being since strengthned by special command Henry TOMPSON one of the Shrieffs and Robert HENISVVORTH Alderman of the Citie of YORK their submission for their indirect chusing of S r. Thomas SAVIL Knight I Henry Tompson one of the Shrieffs of the Citie of York do hereby acknowledge to have offended the Lord Major and all the Cominalty
have been imprisoned for suing ordinary Actions and Statutes at the Common-Law untill they have been constrained to leave the same against their wills and put the same to order albeit Judgement and Execution have been had therein to their great losses and griefs for the aid of which Persons her Majesties Writs have sundry times been directed to divers Persons having the custody of such Persons unlawfully imprisoned upon which Writs no good or Lawfull cause of imprisonment hath been returned or certified whereupon according to the Laws they have been again committed to Prison in secret places and not to any common ordinary Prison or Lawfull Officer as Shrieff or other lawfully authorized to have or keep a Goal so that upon Lawfull complaint made for their delivery the Queens Courts cannot learn to whom to direct her Majesties Writs and by this means Justice cannot be done and moreover divers Officers and Serjeants of London have been many times committed to Prison for Lawfull executing of her Majesties Writ sued forth of her Majesties Courts at West-minster and thereby her Majesties Subjects and Officers are so terrified that they dare not sue or execute her Majesties Laws her Writs and Commandments Divers others have been sent for by Pursevants and brought to London from their dwellings by unlawfull imprisonment have been constrained not onely to withdraw their Lawfull Suits but have also been compelled to pay the Pursevants for bringing such Persons great summes of money All which upon complaint the Judges are bound by Office and Oath to relieve and help by and according to her Majesties Laws And when it pleaseth your Lordships to will divers of us to set down in what cases a Prisoner sent to custody by her Majesty her Councel some one or other or two are to be detained in Prison and not to be delivered by her Majesties Court or Judges we thinck that if any Person be committed by her Majesties Command from her Person or by order from the Councel board or if any one or two of her Councel commit one for high Treason such Persons so in the cases before committed may not be delivered by any of her Courts without due Trial had Nevertheless the Judges may Award the Queens Writ to bring the bodies of such Persons before them and if upon return thereof the causes of their commitment be certified to the Judges as it ought to be then the Judges in the cases before ought not to deliver him but to remaund the Prisoner to the place from whence he came Which cannot conveniently be done unless notice of the cause in general or else special be known to the Keeper or Goaler that shall have the custody of such Prisoner All the Judges and Barons did subscribe their names to these Articles Termino Pascha 34. Eliz. and sent one to the Lord Chancellor and another to the Lord Treasurer after which time there did follow more quietness then before in the cause afore mentioned The KINGS Message the 2. May 1628. by Secretary COKE HIs Majesty hath commanded me to make known to this House that howsoever we proceed with the business we have in hand which he will not doubt but to be according to our constant professions and so as he may have cause to give us thanks yet his resolution is that both his royal care and his harty and true affection towards all his loving Subjects shall appear to the whole Kingdom and to all the World that he will govern us according to the Laws and Customes of the Realm that he will maintain us in the Liberties of our Persons and propriety of our goods so as we may enjoy as much happiness as our Forefathers in their best times and that he will rectifie what hath been or may be amiss amongst us so that there may be hereafter no just cause to complain wherein as his Majesty will ranck himself amongst the best of our Kings and shew he hath no intention to invade or impeach our Lawfull Liberties or Rights so he will have us to match our selves with the best Subjects by not incroaching upon that Soveraignty and Prerogative which God hath put into his hands for our good and by containing our selves within the bounds and Laws of our Forefathers without streining or inlarging them by new Explanations Interpretations Expositions or Additions in any sort which he clearly telleth us he will not give way unto That the weight of the affairs of Christendom do press him more and more and the time is now grown to that point of maturity that it cannot indure long debate or delay so as this Session of Parliament must continue no longer then Tuesday come sevenight at the furthest within which time his Majesty for his part will be ready to perform what he hath promised to us and if we be not as forward to do that is fit for us it shall be our own faults Lastly upon the assurance of our good dispatch and correspondency his Majesty declareth that his Royal intention is to have another Session at Michalmass next for the perfecting of such things as cannot now be done M r. MASONS speech 2. May 1628. I Am of opinion with the Gentleman that spake first that in our proceedings in the matter now in debate we should have use of the Title of the Statute called circumspecte agatis for it concerns the Liberty of our Persons without which we do not enjoy our lives The Question is WHether in this Bill for the explanation of Magna Charta and the rest of the Satutes we shall provide that the cause of the commitment must be expressed upon the commitment or upon the Return of the Habeas Corpus Before I speak to the question it self I shall propose some observations in my conceit necessarily conduceing to the debate of the Matter 1. That we ought to take care and to provide for posterity as our Predecessors have done for us and that this provident care cannot be expounded to be any distrust of the performance of his Majesties gracious Declaration this Act providing for perpetuity to which his Highness promise unless it were by Act of Parliament cannot extend 2. That we having long debated and solemnly resolved our Rights and Priviledges by virtue of these Statutes and if now we shall reduce those Declarations and those resolutions into an Act we must ever hereafter expect to be confined within the bounds of that Act being made at our Suit and to be the limmits of the Prerogative in in that respect and it being an Act of explanation which shall receive no further explanation then it self contains 3. That by this Act we must provide a remedy against the Persons which detain us in Prison for as to the Commander there can be no certain Concerning the Question it self IT hath been solemnly and clearly resolved by the House that the commitment of a Freeman without expressing the cause at the time of the commitment is against the Law If by this Act
safety or available to you Yet to shew clearly the sincerity of his Majesties intentions he is content that a Bill be drawn for confirmation of Magna Charta and the 6. other Statutes insisted on for the Subjects Liberties if you shall chuse that to be the best way so that it be without Additions Paraphrase or Explanations Thus if you please you may be secured from your needless fears and this Parliament may have a happy wished for end whereby the contrary if you seek to tye the King by new and indeed impossible bonds you must be accomptable to God and your Countrey for the ill success of this meeting His Majesty having given his Royal word that you shall have no cause to complain hereafter less then which hath been enough to reconcile great Princes and therefore ought much more to prevail between King and Subject Lastly I am commanded to tell you that his Majesties pleasure is that without further replies of Messages or other unnecessary delayes you do what you mean to do speedily remembring the last Message which his Majesty sent you by Secretary Coke for point of time his Majesty alwayes intending to perform his promise to his people The Lord COKES speech at the conference in the Painted Chamber presenting the Petition of Right 8. May 1628. I Pray your Lordships to excuse us for we have been till one of the Clock about the great business and blessed be God we have dispatcht it in some measure and before this time we were not able to attend your Lordships but I hope that this will prove to be a great blessing to us My Lords I am commanded from the House of Commons to express their singuler care and affection they have of concurrence with your Lordships in these urging affairs and proceedings of this Parliament both for the good of the Common-wealth and principally for his Majesties And this I may say in this particuler if we have hundreds of tongues we were not able to express this desire which we have of that concurrence with your Lordships but I will leave it without any further expression My Lords what necessity there is both in respect of your selves and your posterities in the good success of this business we have acquainted your Lordships with the reasons and the arguments and also that we have had some conference about it we have received from your Lordships 5. Propositions and it behoves us to give your Lordships some reasons why you have not heard from us before now for in the mean time as we were consulting of this weighty business we have received divers messages from our great Soveraign the King and they consisted upon 5. parts First was that his Majesty would maintain all his Subjects in their just freedom both of their Persons and Estates Secondly That he will govern according to his Laws and Statutes Thirdly That we shall finde much confidence in his Royal word I pray observe that Fourthly That we shall enjoy all our Rights and Liberties with as much Freedom and Liberty as ever any Subjects have before times Fifthly That whether we shall think it fit either by way of Bill or otherwise to go on in this great business his Majesty would be pleased to give way to it These gracious messages do so work upon our affections that we have taken them into consideration My Lords when we had these messages I deal plainly for so I am commanded by the House of Commons We did consider in that way we may go for our most secure way nay yours we do think that the safest way was to go a Parliament course for we have Maxim in the House of Commons and written on the walls of our House that old wayes are the safest and surest wayes And at last we fell upon that which we did think if that your Lordships shall consent with us as the most ancient way of all and that is my Lords viam faustam both to his Majesty and your Lordships and to our selves for my Lords this is the greatest bond that any Subject can have in Parliament verbum Regis that is an high point of Honour but this shall be done by the Lords and Commons and assented to by the King in Parliament This is the greatest obligation of all and this is for the Kings Honour and our safety And therefore my Lords we have drawn a form of a Petition desiring your Lordships to concur with us herein for we come with an unanimous consent of all the House of Commons for there is great reason your Lordships should do so because that your Lordships be involved in the same condition commune periculum and so I have done with the first part And now I shall be bolde to read that which we have so agreed on I shall desire your Lordships that I may read it The Petition of Right to the KINGS most Excellent Majesty HUmbly sheweth unto our Soveraign Lord the King the Lords spiritual temporal and Commons in this present Parliament assembled That whereas it is declared and enacted by a Statute made in the time of the Raign of King Edw. 1. commonly called Statutum de tallagio non concedendo That no Tollage or aid should be laid or levied by the King or his Heirs in this Realm without the good will and assent of the Arch-Bishop Earles Barons Knights Burgesses and others the freemen of the Cominalty of this Realm And by Authority of Parliament holden in the 13. year of the Raign of King Ed. 3. it is declared and enacted that form thence-forth no Persons should be compelled to make any loan to the King against his will because such loans were against reason and the Franchises of the Land And by other Laws of this Realm it is provided that none should be charged by any charge or imposition called a Benevolence nor by such like charge by which the Statutes before mentioned and other the good Laws and Statutes of this Realm your Subjects have inherited this freedom that they should not be compelled to Contribute to any Tax Tollage Aid or other like charge not set by common consent in Parliament Yet nevertheless of late divers Commissions directed to sundry Commissioners in several Countreys with instructions have issued by means whereof your people have been in divers parts assembled and required to lend certain summes of money to your Majesty And many of them upon refusal so to do have had an unlawfull Oath administred unto them not warrantable by the Laws and Statutes of this Realm and have been constrained to become bound to make appearance and give attendance before your privy Councel and in other places And others of them have been therefore imprisoned confined and sundry other wayes molested and disquieted and divers other charges have been laid and levied upon your people in several Countreys alleadging some superior by Lord Lieutenants Deputy Lieutenants Commissioners for Musters Justices of Peace and others by command or direction against the Laws
so glorious within the outward poverty will bring contempt upon them especially amongst those who measure men by the ounce and weigh them by the pound which indeed is the greatest part of men Mr. Pym I cannot but testifie how being in Germany I was exceedingly scandalized to see the poor stipendarie Ministers of the Reformed Churches there dispised and neglected by reason of their poverty being otherwayes very grave and learned men I am afraid this is a part of the burthen of Germany which ought to be a warning to us I have heard many Objections and difficulties even to impossibilities against this Bill to him that is unwilling to go there is even a Bear or Lion in the way First let us make our selves willing then will the way be easie and safe enough I have observed that we are alwayes very eager and fierce against Papistry against scandalous Ministers and against things which are not so much in our power I should be glad to see that we did delight as well in rewarding as in punishing and in undertaking matters within our own reach as this is absolutely within our power Our own duties are next us other mens further of I do not speak this that I do mislike the destroying or pulling down of that which is ill but then let us be as earnest to plant and build up that which is good in the room of it for why should we be desolate The best and the greatest way to dispell darkness and the deeds thereof is to let in light we say that day breaks but no man can ever hear the noise of it God comes in the still voice let us quickly mend our Candlesticks and we cannot want lights I am afraid this backwardness of ours will give the adversary occasion to say that we chuse our Religion because it is the cheaper of the two that we would willingly serve God with somewhat that cost us naught Believe it M r. Pym he that thinks to save any thing by his Religion but his Soul will be a terrible looser in the end we sow so sparingly and that is the reason we reap so sparingly and have no more fruit Me thinks whosoever hates Papistry should by the same rule hate covetousness for that 's Idolatry too I never liked hot professions and cold actions such a heat is rather the heat of a distemper and disease then of life and saving health For scandalous Ministers there is no man shall be more foreward to have them sincerely punnished then I will be when Salt hath lost its savour fit it is to be cast on the unsavory place the dunghill But Sr. let us deal with them as God hath dealt with us God before he made man he made the World a handsome place for him to dwell in so let us provide them convenient livings and then punish them on Gods name but till then scandalous livings cannot but have scandalous Ministers It shall ever be a rule to me that where the Church and Common-wealth are both of one Religion it is comely and decent that the outward splendor of the Church should hold a proportion and participate with the prosperity of the temporal State for why should we dwell in houses of Cedar and suffer God to dwell in Tin It was a Glorious and Religious work of King Iames and I speak it to his unspeakable Honour and to the praise of that Nation who though that Countrey be not so rich as ours yet are they Richer in their affections to Religion within the space of one year he caused to be planted Churches through all Scotland the Highlands and the Boarders worth 30. l. a year a piece with a house and some gleab belonging to them which 30. l. a year considering the cheapness of the Countrey and the modest fashion of Ministers living there is worth double as much as any where within a 100. miles of London the printed Act and Commission whereby it may be executed I have here in my hand delivered unto me by a Noble Gentleman of that Nation and a worthy Member of this House Sir Francis Stuart To conclude although Christianity and Religion be established generally throughout this Kingdom yet untill it be planted more particularly I shall scarce think this a Christian Common-wealth seeing it hath been moved and stirred in Parliament it will lye heavy upon Parliaments untill it be effected Let us do something for God here of our own and no doubt God will bless our proceedings in this place the better for ever hereafter And for my own part I will never give over solliciting this cause as long as Parliaments and I shall live together CHARLES REX To our trusty and well-beloved the Lords Spiritual and Temporal of the Higher House of PARLIAMENT WE being desirous of nothing more then the advancement of the good peace and prosperity of our people have given leave to free debates of highest points of our Prerogative Royal which in times of our Predecessors Kings and Queens of this Realm were ever restrained as Matters they would not have disputed and in other things we have been willing fairly to condiscend to the desires of our loving Subjects as might fully satisfie all moderate mindes and free them from all just fears and jealousies with those Messages which heretofore we have sent to the Commons House will well demonstrate to the World and yet we finde it still insisted on that in no case whatsoever should it never so nearly concern Matters of State and government we nor our privy Councel have power to commit any man without the cause shewed whereas it often happens that should the cause be shewed the service thereby would be destroyed and defeated and the cause alleadged must be such as may be determined by our Judges of our Courts at Westminster in a Legal and Ordinary way of Justice whereas the cause may be such whereof the Judges have no capacity of Judicature or rules of Law to direct or guide their Judgements in cases of that transcendent nature which hapning so often the very intermitting of the constant rules of government for many ages within this Kingdom practised would soon dissolve the very frame and foundation of our Monarchy wherefore as to our Commons we have made propositions which might equally preserve the just Liberty of the Subject So my Lords we have thought good to let you know that without overthrow of our Soveraignty we cannot suffer this power to be impeached But notwithstanding to clear our conscience and just intentions this we publish that it is not in our hearts nor ever will we extend our royal power lent unto us from God beyond the just rule of moderation in any thing which shall be contrary to our Laws and Customes where the safety of our people shall be our onely aim And we do hereby declare our royal pleasure and resolution to be which God willing we shall ever constantly continue and maintain that neither we nor our privy Councel
shall or will at any time hereafter commit or command to Prison or otherwise restrain the Person of any for not lending money unto us or for any other cause which in our conscience doth not concern the State the publick good and safety of us and of our people we will not be drawn to pretend any cause which in our Judgements is not or is not expressed which base thought we hope no man will imagine can fall into our royal breast that in all cases of this nature which shall hereafter happen we shall upon the humble Petition of the party or access of our Judges to us readily and really express the cause of their commitment or restraint so soon as with conveniency and safety the same is fit to be disclosed and expressed That in all causes Criminal of ordinary Jurisdiction our Judges shall proceed to the deliverance and baylment of the Prisoner according to the known and ordinary rules of the Laws of this Land and according to the Statutes of Magna Charta and those other six Statutes insisted upon which we do take knowledge stand in force and which we intend not to abrogate against the true intention thereof Thus we have thought fit to signifie unto you the rather for shortning any long delayes of this question the season of the year so far advance and our great occasions of State not lending us many dayes for long continuance of this Session of Parliament Given under our Signet at our Pallace of Westminster the 12. of May in the fourth year of our Raign The KINGS Message by the Lord Keeper 21. May 1628. HIs Majestie commanded me to signifie to your Lordships that the business concerning your part presented by the Commons to the Lords concerning the Liberty of the Subject wholly depends upon your Lordships and because his affairs are pressing and that he is very suddenly to take a Journey to Portsmouth As also because his Majesty would have the business put in a good forwardness before his going thither his Majestie desires your Lordships this day to proceed to a resolution whether you will joyn with the House of Commons in the Petition or not M r. MASONS speech concerning the Addition propounded by the Lords to be added to the Petition of Right IN our Petition of Right to the Kings Majestie we mentioned the Laws and Statutes by which it appeared that no Tax Loan or the like ought to be levied by the King but by common assent in Parliament That no Freeman ought to be imprisoned but by the Law of the Land That no Freeman ought to be compelled to suffer Souldiers in his house In the Petition we have expressed the breach of these Laws and desire that we may not suffer the like all which we pray as our Rights and Liberties The Lords have proposed an addition to this Petition in these words We humbly present this Petition to your Majestie not onely with a care of our own Liberties but with a due regard to leave intyre that Soveraign power wherewith your Majesty is intrusted for the protection safety and happiness of your people and whether we shall consent unto this addition is the Subject of this dayes discourse And because my Lord Keeper at the last conference declared their Lordships had taken the words of the Petition apart The word leave in a Petition is of the same nature as saving in a grant or Act of Parliament when a Man grants but part of a thing he saves the rest when he Petitions to be restored but to part he leaveth the rest then in the end of our Petition the word leave will imply that something is to be left of that or at least with a Reverence to what we desire The word entyre is very considerable a Conquerour is bound by no Law but hath power dare leges his will is a Law and although William the Conquerour at first to make his way to the Crown of England the more easie and the possession of it the more sure claiming it by little but afterwards when there were no powerfull pretenders to the Crown The little of Conquest to introduce that absolute power of a Conquerour was claimed and that Statute of Magna Charta and other Statutes mentioned in our Petition do principally limmit that power I hope it is as Lawfull for me to cite a Jesuite as it is for Dr. Manwaring to falsifie him Suares in his first book de legibus cap. 17. delivered his opinion in these words amplitudo restrictio potestatis Regum circa ea quae per se mala vel injusta non sunt pendet ex arbitrio hominum ex ambigua convencione vel pacto inter Reges Regnum And the further expresseth his opinion that the King of Spain was so absolute a Monarch that he might Lawfully impose tribute without consent of his people untill about 200. years since when it was concluded between him and his people that without consent of his people by proxies he should not impose any Tribute And Suares opinion is that by that agreement the Kings of Spain are bound to impose no Tribute without consent And this agreement that Author calls a restraining of that Soveraign power the Statutes then mentioned in our Petition restraining that absolute power of a Conquerour if we recite those Statutes and say we have the Soveraign power intire we do not take away that restraint which is the virtue and strength of those Statutes and set at Liberty the claim of the Soveraign power of a Conquerour which is to be limitted and restrained by no Laws this may be the danger of the word entyre The next words delivered by the Lords as observable is the particle that because it was said that all Soveraign power is not mentioned to be left but onely that with which the King is trusted for our protection safety and happiness But I conceive this to be an exception of all Soveraign power for all Soveraign power in a King is for the protection safety and happiness of his people If all Soveraign power be excepted you may easily Judge the consequence all Loans and Taxes being imposed by colour of that Soveraign power The next word is trusted which is very ambiguous whether it be meant trusted by God onely as a Conquerour or by the people also as King which are to Govern also according to Laws ex pacto In this point I will not presume to adventure further onely I like it not by reason of the doubtfull exposition it admits I have likewise considered the proposition it self and therein I have fallen upon the dilemma that this addition shall be construed either to refer unto the Petition or not If it doth refer unto the Petition it is meerly useless and unnecessary and unbefitting the Judgement of this grave and great Assembly to add to a Petition of this weight If it hath reference 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 guift loan or such like charge without common consent or Act of Parliament unless it be by the Soveraign power with which the King is trusted for the protection safety and happiness of his people That none ought to be compelled to sojourn or billet Souldiers unless by the same Soveraign power and so of the rest of the Rights contained in the Petition And then the most favourable construction will be that the King hath an ordinary Prerogative and by that he cannot impose Taxes or Imprison That is he cannot impose Taxes at his will to imploy them as he pleaseth that he hath an extraordinary and transcendent Soveraign power for the protection and happiness of his people and for such purpose he may impose Taxes or billet Souldiers as he pleaseth and we may assure our selves that hereafter all Loans Taxes and billeting of Souldiers will be said to be for the protection safety and happiness of the people Certainly hereafter it will be conceived that an House of Parliament would not have made an unnecessary addition to this Petition of Right and therefore it will be resolved that the addition hath relation to the Petition which will have such operation as I have formerly declared and I the rather fear it because the late Loan and Billeting have been declared to have been by Soveraign power for the good of our selves and if it be doubtfull whether this proposition hath reverence to the Petition or not I know not who shall Judge whether Loans or Imprisonments hereafter be by that Soveraign power or not A Parliament which is made a body of several wits and may be dissolved by one Commission cannot be certain to decide this question We cannot resolve that that the Judges shall determine the words of the Kings Letter read in this House expressing the cause of Commitment may be such that the Judges have not capacity of Judicature no rules of Law to direct guide their Judgements in cases of that transcendent nature the Judges then and the Judgements are easily conjectured It hath been confessed by the Kings Councel that the Statute of Magna Charta bindes the King and his Soveraign power cannot be divided from himself If then the Statute of Magna Charta bindes the King it bindes his Soveraign power if to the Petition these words be added the exposition then must be that the Statute of Magna Charta binds the Kings Soveraign power Saving the Kings Soveraign power I shall endevour to give some answer to the reasons given by the Lords The first is that it is the intention of both Houses to maintain the just Liberty of the Subject and not to diminish the just power of the King and therefore the expression of that intention in this Petition cannot prejudice us which I answer First that our intention was and is as we then professed and no man can assign any particuler in which we have done to the contrary Neither have we any way transgressed in that kinde in this Petition and if we make this addition to the Petition it would give some intimution that we have given cause or colour of offence therein which we deny and which if any man conceive so that he would assign the particuler that we may give an answer thereunto By our Petition we onely desire our particuler Rights and Liberties to be confirmed to us and therefore it is not proper for us in it to mention Soveraign power in general being altogether impertinent to the matter in the Petition There is a great difference between the words of the addition and the words proposed therein for reason viz. between just power which may be conceived to be limmitted by Laws and Soveraign power which is supposed to be transcendent and boundless The second reason delivered by their Lordships was that the King is Soveraign That as he is Soveraign he hath power and that that Soveraign power is to left for my part I would leave it so as not to mention it but if it should be expressed to be left in this Petition as it is proposed it must admit something to be left in the King of what we pray or at least admit some Soveraign power in his Majestie in these Priviledges which we claim to be our Right which would frustrate our Petition and destroy our Right as I have formerly shewed The third reason given from this addition was that in the statute Articuli super Chartas there is a saving of the right and seigniory of the Crown To which I give these answers That Magna Charta was confirmed above 30 times and a general saving was in none of these Acts of confirmation but in this onely and I see no cause we should follow one ill and not 30 good Presidents and the rather because that saving produced ill effects that are well known That saving was by Acts of Parliament The conclusion of which Act is that in all those Cases the King did will and all those that were at the making of that Ordinance did intend that the Right and Seigniory of the Crown should be saved By which it appears that the saving was not in the Petition of the Commons but added by the King for in the Petition the Kings will is no expressed In that Act the King did grant and depart with to his people divers Rights belonging to his prerogative as in the first Chapter he granted that the people might choose three Men which might have power to hear and determine complaints made against those that offended in any point of Magna Charta though they were the Kings officers and to fine and ransome them and in the 8.12 and 19. Chapter of that Statute the King departed with other prerogatives and therefore there might be some reason of the adding of that Soveraign by the Kings Councel But in this Petition we desire nothing of the Kings Prerogative but pray the enjoying of our propper and undoubted Rights and Priviledges and therefore there is no cause to add any words which may imply a saving of that which concerns not the matter in the Petition The 4. reason given by their Lordships was that by the mouth of our Speaker we have this Parliament declared that it was far from our intention to incroach upon his Majesties Prerogative and that therefore it could not prejudice us to mention the same resolution in an addition to this Petition To which I answer that that declaration was a general answer to a Message from his Majestie to us by which his Majestie expressed that he would not have his Prerogative streitned by any new explanation of Magna Charta or the rest of the Statutes and therefore that expression of our Speakers was then propper to make it have reference to this Petition there being nothing therein
conteined but particuler Rights of the Subject and nothing at all concerning his Majesties Prerogative Secondly that answer was to give his Majectie satisfaction of all our proceedings in general and no man can assign any particuler in which we have broken it and this Petition justifies it self that in it we have not offended against the protestation and I know no reason but that this declaration should be added to all our Laws we shall agree on this Parliament as well as to this Petition The last reason given was that we have varied in our Petition from the words of Magna Charta and therefore it was well necessary that a saving should be added to the Petition I answer that in the Statute 5. E. 3. 25. E. 3. 28. E. 3. and other Statutes with which Magna Charta is confirmed the words of the Statute of explanation differ from the words of Magna Charta it self the words of some of the Statutes of explanation being that no man ought to be apprehended unless by indictment or due process of Law the other statutes differing from the words of Magna Charta in many other particulars and yet there is no saving in those Statutes much less should there be any in a Petition of Right these are the answers I have conceived to the reasons of their Lordships and the exposition I apprehend must be made of the proposed words being added to our Petition And therefore I conclude that in my opinion we may not consent to this addition which I submit to better Judgements The Reasons of the Commons House delivered by M r. GLANUILE why they cannot admit of the Propositions tendered unto them by the Lords May it please your Lordships I Am commanded by the House of Commons to deliver unto your Lordships their reasons why they cannot admit of the Proposition tendered unto them by you but for an introduction into the busines please you to remember that a Petition of Right was shewed to your Lordships wherein we desired you would joyn with us a Petition my Lords fitting for these times grounded upon Law and seeking no more then the Subjects just Liberty The Petition consisted of 4. parts The first touching Loan Aids and Taxes The second touching imprisonment of mens Persons The third touching Billeting of Souldiers The fourth touching Commissions issued for Martial Law and put in execution upon several Persons Groaning under the burthen of these we desired remedy and wish your Lordships would joyn with us which you having taken into consideration we must confess have dealt nobly and freely with us not to conclude any thing till you hear our just reasons for which we thank your Lordships and hope your Lordships will value those reasons which we shall now offer unto your Lordships The work of this day will make a happy issue if your Lordships please to relinquish this as we formerly upon conference with your Lordships have done some other things For the Proposition my Lords we have debated it throughly in our House and I am commanded to deliver unto you the reasons why we cannot insert this clause Neither your Lordships nor we desire to debate Liberty beyond the due bounds or to incroach upon the Kings Prerogative and lessen the bounds thereof The first reason I am to lay down is touching Soveraign power which I beseech you not to accept as my own being but a weak Member of that strong body but as the reasons of the whole House upon great and grave considerations First my Lords the words Soveraign power hath either reference or no reference to the Petition if no reference then superfluous if a reference then dangerous and operative upon the Petition and we think your Lordships purposes is not to offer unto us any thing that may be vain or to the hinderance of any thing wherein you have already joyned with us The Petition declareth the Right of the Subject which yet may be broken by the word Soveraign power and so the virtue of the Petition taken away The end of the Petition is not to enlarge the bounds of Law but their Liberties being infringed to reduce them to their ancient bounds and shall we by admitting of these words Soveraign power instead of cureing the wound launch it and cut it deeper The next point is the word trust a word of large latitude and deep sence we know that there is a trust in the Crown and King but regulated by Law we acknowledge in penal Statutes the King may grant another power to dispense with the Law but Magna Charta inflicting no penalty leaveth no trust but claimeth his own right therefore the word trust would confound this distinction Our next reason is we think it absolutely repugnant to any course of Parliament to put saving to the Petition In former times the course of petitioning the King was this The Lords and the Speaker either by words or writing preferred their Petition to the King this then was called the Bill of the Commons which being received by the King part he received and part he put out part he retified for as it came from him it was drawn into a Law But this course in 2. H. 5. was found prejudicial to the Subject and since in no such cases they have petitioned by Petition of Right as we now do who come to declare what we demaund of the King For if we should tell him what we should not demaund we should then proceed not in a Parliamentary course Now for that which is alleadged by your Lordships de articulis sup Chartas that my Lords is not like this that is saving upon particulars But this Petition consisting consisting on particulers would be destroyed by a general saving The saving de articulis sup Chartas are of three aids for Ransomming the Kings Person for Knighting the Kings eldest Son and once for Marrying the Kings eldest Daughter These by the form of the Petition shew that they came not in upon the Kings answer but upon the Petition First then followed the savings which under favour we think are no reasons to make us accept of this saving being not pertinent to the Petition These 23. Statutes 34. E. 1. were made to confirm Magna Charta so that there are in all 30. Acts to set Magna Charta in its purity and if some subsequent Statute have laid some blemish upon it shall we now then make the subject in worse case by laying more weight upon it God forbid In the next place your Lordships reason thus that this which you wish we would admit of is no more then what we formerly did profess when we sent the King word we had no purpose at all to trench upon his prerogatives It is true my Lords we did so but this was not annexed to any Petition for in that manner we should never have done it And here I am commanded with your favours to deliver unto you what a Learned Member of the House delivered unto our House
vouchsafe us your noble Company in this Petition without surcharging it with this addition A tempore Our next argument is drawn a tempore from the unseasonableness of the time The wise man saith there is a time for all things under the Sun tempus suum And if in the wise mans Judgement a word spoken in its due time be precious as Gold and Silver then an unseasonable time detracts as much from the thing or word done or spoken We hold under your favours that the time is not seasonable now for this addition It is true that of it self Soveraign power is a thing alwayes so sacred that to handle it otherwise then tenderly is a kinde of sacriledge and to speak of it otherwise then reverently is a kinde of blasphemy but every vulgar capacity is not so affected the most part of men nay almost all men judge and esteem all things not according to their own intrinsick virtue and quality but according to their immediate effects and operations which the same things have upon them Hence it is that Religion it self receiveth more or less credit and approbation as the Teachers and Professors are worser or better Yea if God himself send a very wet Harvest or Seed-time men are apt enough to censure Divine power The Soveraign power hath not now for the present the ancient amiable aspect in respect of some late sad influences but by Gods grace it will soon recover To intermix with this Petition any mention of Soveraign power rebus sic stantibus when angry men say Soveraign power hath been abused and the most moderate wish it had not been so used we hold it not seasonable under your Lordships correction A loco Our next argument is drawn a loco we think the place where your Lordships would have this addition inserted viz. in the Petition no convenient or seasonable place Your Lordships will easily believe that this Petition will run through many hands every man will be desirous to see and to read what their Knights and their Burgesses have done in Parliament upon their complaints what they have brought home for their 5. Subsedies If in perusing of this Petition they fall upon the mention of Soveraign power they presently fall to arguing reasoning and discanting what Soveraign power is what is the Latitude whence the Original and where the bounds with many such curious and captious questions by which course Soveraign power is little advanced or advantaged For I have ever been of opinion that it is then best with Soveraign power when it is had in tacite venerationem not when it is prophaned by publick hearings or examinations Our last argument is drawn from our duty and Loyalty to his Majesty in consideration whereof we are fearfull at this time to take this addition into our Petition least we should do his Majesty herein some disservice With your Lordships we make the great Councel of the King and Kingdom And though your Lordships having the happiness to be near his Majesty know other things better yet certainly the state and condition of the several parts for which we serve their dispositions and inclinations their apprehensions their fears and jealousies are best known unto us And here I pray your Lordships to give me leave to use the figure called Reticentia that is to insinuate and intimate more then I mean to speak Our chief and principal end in this Parliament is to make up all rents or breaches between the King and his Subjects to draw them and knit them together from that distance whereof the world abroad takes too much notice to work a perfect union and reconciliation how improperly and unapt at this time this addition would be in respect of this end we cannot but foresee and therefore shun it and do resolve that it is neither agreeable to the Persons of such Councellors whom we are nor answerable to that love and duty which we owe to his Majesty to hazard an end of such unspeakable consequence upon the admittance of this addition into our Petition whereof as we have shewed the omission at this time can by no means harm the Kings Prerogative the expression may produce manifold inconveniences and therefore since the admittance of your Lordships addition into our Petition is incoherent and incompatible with the body of the same since there is no necessary use of it for the saving of the Kings rerogative since the moderation of our Petition deserveth your Lordships cheerfull conjunction with us since this addition is unseasonable for the time and inconvenient in respect of the place where your Lordships would have it inserted and lastly may prove a disservice to his Majesty I conclude with a most affectionate prayer to your Lordships to joyn with the House of Commons in presenting this Petition unto his sacred Majesty as it is without this addition The KINGS speech in the Higher House at the meeting of both Houses 2. June 1628. Gentlemen I Am come hither to perform my duty and I think no man will think it long since I have not taken so many dayes in answering of the Petition as you have spent weeks in framing it and I am come hither to shew you that as well in formall things as in essential I desire to give you as much content as in me lies The Lord KEEPER in explanation of the same MY Lords and you the Knights Cittizens and Burgesses of the House of Commons his Majesty hath commanded me to say unto you that he takes it in good part that in consideration how to settle your own Liberty you have generally professed in both Houses that you have no intention for to lessen or diminish his Majesties Prerogative wherein as you have cleared your own intentions so his Majesty now comes to clear his and to strike a firm league with his people which is ever decreed to be most constant and perpetual when the conditions are equal and known to be so These cannot be in a more happy estate then when your Liberties shall be an ornament and strength to his Majesties Prerogative and his Prerogative a defence to your Liberties In this his Majesty doubts not but both you and he shall take a mutual comfort hereafter and for his part he is resolved to give an example in so using of his power as hereafter you shall have no cause to complain This is the summe of that which I am to say to you Here read your own Petition and his Majesties gracious answer The KINGS answer to the Petition of Right 2. June by the Lord KEEPER THe King willeth that Right be done according to the Laws and Customes of the Realm and that the Statutes be put in due execution that the Subject may have no cause to complain of any wrong or oppression contrary to their just Rights and Liberties to the preservation whereof he holds himself in conscience as well obliged as of his Prerogative Sir JOHN ELLIOTS Speech 3. June Mr. Speaker WE sit here
happy conclusion and to the King's honour and our own safety Great and weighty things wound deep Cast your eyes which way you please and you shall see violations on all sides look at the liberty of the subject look on the priviledge of this House let any say if ever he saw the like violation by inferiour Ministers that over-do their command nay they say if all the Parliament were in you this would we do and justifie If we suffer the liberty of this House to wither out of fear or complement we give a wound to the happiness of this Kingdom Here the course of justice was interrupted and order in the Exchequer was made for stay of the goods since here is a seizure upon the approach of Parliament of goods amounting to 5000. l. for a pretended duty of 200 l. In the sight of King Iames by reason of the sickness that then was the Parliament was prorogued and then there was some boldness to take this Tonnage and Poundage for there was no right to demaund it Let us proceed with affection of duty to make up breaches let a Committee consider of these proceedings Mr. Littleton HEre Mr. Littleton made a short speech to second him and all to the same purpose but for brevity sake I omit it M. Littleton we have had good admonitions and have followed them we have moderation preached unto us in Parliament and we follow I would others did the like out of Parliament Let the parties be sent for that violated the liberties of the Parliament and have their doom This Speech was occasioned by Setretary Cook who in his Speech desired moderation might be used Sir Iohn Elliot I See by this Relation what cause we have to be tender of the liberty of the Kingdom and this House and yet withall to return that moderation as to give satisfaction to the world that our hearts are fixed to serve his Majesty and to free us from ofter of jealousie 3 Things are involved in this complaint First the Right of particular Gentlemen Secondly the Right of the Subject Thirdly the Right and priviledge of this House Let the Committee consider of the 2 former but for the violation of the liberty of this House let us not do less than our fathers Was ever the information of a Member committed to a Committee Let us send for the parties Is there here a bare denial of the restistution of the goods was it not also said that if all the Parliament were contained in him they would do as they did Let them be sent for It was ordered that the Officers of the Custome-house should be sent for Mr. Selden REported from the Committee concerning the printing of the Petition of Right that there were printed 1500 without any addition at all which were published in the time of the last Parliament but since the Parliament other Copies have been printed and these supprest and made waste paper which the Printer did as he said by command from Mr. Attorny which he received from his Majesty and the Printer further said that the Attorney was with the Lord Privy Seal at White-Hall and there delivered unto the Printer sundry papers with diverse hands to them and on the backside was endorsed thus We will command you that these copies be printed Friday 23. HIs Majesty sent the House a Message to this effect That he willed them to cease from the former debate of Tonnage and Poundage till the next day in the after-noone and that he would speak with them the next day in the after-noone at White-Hall in the Banqueting-house Saturday 24. THe King made a Speech to that purpose Munday 26. MR. Walter did inform the House that diverse ships were laden with corn for Spain whereupon a Committee was appointed to inquire of the trading into Spain and to other enemies transporting corn and other Munition thither it is also ordered that some of the prime Councel should presently move the King about stay of the ships MR. Secretay Cook then moved that the Bill of Tonnage and Poundage might be read and after some debate it was diverted and they fell upon points of Religion the which Mr. Rowse did first mention See his former Speech at large Sir Francis Beamor IF Religion be not a Rule to all our actions what pollicy can we have If God fight not our battailes the help of man is in vain In our defect the cause thereof is our defect in religion and the sin is Idolatry and Popery Papists encrease now more than ever they did neither do they want their Priests and Masses nay his Majesties name is used to stop proceedings against Papists and that since the Parliament contrary to his Majesties goodness and publick profession and contrary to his many proclamations and many instructions to the Judges and whatsoever is done in the country is undone above Mr. Kirton IF ever now it is time to speak We see what men are raised to preferment if we look not to it I shall more fear it than the Spanish Armado or the loss of the Sound Mountague was here questioned We see the King to all our comforts is right it comes not from him but some that are too near him are too busie in this The ambition of the Clergy brought these stories We see pulpits are full of them we see some that wear white and black 't is more than Mountague let us bend our wits to reforme them Mr. Sherland WE have a Religion that is worth the loving with all our hearts it was setled by the bloud of Martyrs and kept by miracles To have our noses wiped of this would grieve any heart more to see our Religion go away and designes made of it and Arminianism still to encrease as it doth If do admi I do perswade my self the greater part of the Clergy Nobility and Gentry are firm but it is the desire of some to labour to bring in a new faction of their own and so to drop into the ears of his Majesty that those that oppose them oppose his Majesty and so they put him upon designes that stand not with publick liberty that he commands what he lists with Lives Goods and Religion and doth as he pleaseth and so they involve all true hearted English-men and Christians under the name of Puritans and so make their quarrel to be his Majesties which is treason of the highest quality Tuesday 27. A Petition was exhibited concerning one Lewis that said about the 25 of December The Devill take the Parliament which was avowed by 2 witnesses It was resolved to be an offence to the Parliament and it was ordered he should be sent for SIr Nathaniel Rich tendered a Petition touching the Fast which was agreed to be preferred to the King It was ordered that a conference should be desired with the Lords about this Petition who were desired to joyn with the lower House which was done accordingly THe King sent a Message by Secretary Cooke to this effect
desires and future hopes and howsoever I find the misinterpretation of some and the danger of Religion yet I find his Majesties ears open and if these things be thus as we see that then he is not rightly counselled I am confident we shall render his Majesty an account of what he expecteth but Sir I apprehend a difference between his Majesties expression and the expression of his Ministers First Sir that Bill was here tendered in his Majesties name and now we find his Majesty disavows it that he did it not What wrong is this done to his Majesty and to this House to press things in his Soveraigns name to the prejudice and distraction of us all I think him not worthy to sit in this House Mr. Speaker THis Honorable person did explain himself that he did not press it in his Majesties name but onely did commend it to your considerations Secretary Cook I Said that in regard of the difference between his Majestie and his Subjects my desire was to accommodate it Sir Humfrey May IF ye be too quick to except against the ministers of his Majestie that serve his Majestie and this House it will discourage and stop our mouthes whose service ye dayly commend At the Committee for Religion Sir Iohn Elliot FOr the way of our proceedings to shew the weight and unitie thereof to all the world we have laid a good foundation I collect out of the particulars about the Article of Lambeth that the difference was in the manner of the use of them but all did profess the truth and worth of them at which unitie in all our hearts we may all rejoyce whereas the enemie abroad gives out that we are at faction amongst our selves whereas all of us took them granted not onely to make use of them to oppose our adversaries but also for the worth of them Let us boldly relie on the ground alreadie laid let us look to them that offended us in this our truth which I hope we shall live and die in if there be cause Are there Arminians for so they are called look to this see what degree they creep let us observe their Books and Sermons let us strike at them and make our charge at them and vindicate our truth that seems yet obscure and if any justifie themselves in their new opinions let us deal with them and then testimonie will be needfull our truth is clear our proofs will be many and if these parties will dare to defend themselves then seek for proof The Remonstrance of the last Parliament was read in part about Arminians and also his Majesties Declaration printed with the book of Articles and the Proclamation against Mountagne Wednesday Febr. 4. A Bill preferred that no Clergie-man shall be in Commission for Peace except Bishops Deans Vice-Chancellors of both Universities c. within their severall jurisdictions Doctor Reeves which sat as Judge upon the Conservation of Mr. Mountague called in and examined saith That Objections were offered Ore tenus and after offered in writing but he rejected the same because they had not an advocates hand and upon the whole saith he durst neither admit of any objections for the present nor give time for the same upon pain of premunire by the Statute Doctor Talbot and Doctor Steward are assigned for Councel with Mr. Iones the Printer in his Cause Mr. Selden THe point considerable is not whether Doctor Reeves hath done well or ill for he did but as any discreet man would have done but the point is now whether Mr. Mountague be a lawfull Bishop or no. Neither is the question to be debated whether the exceptions be lawfull or no but being legal of what force they be to hinder the confirmation of the Bishop All which is agreed and Doctor Reeves for the present discharged A Petition is preferred by Thomas Ogle against Doctor Cosens with Articles annexed thereunto tending to the introducing of Popish Doctrine and Popish Ceremonies into the Cathedral Church at Durham Sir Euball Thelwall THere were two affidavits that Cosens should say That the King had no more to do with Religion than his Horse-keeper and that by the appointment of Mr. Attorney these affidavits were taken and he said to the end a Bill in Star-chamber might be filed against him But since Cosens hath his pardon and the King was told it was onely raised by the spleen of some Puritane Mr. Shervile DEsired that search might be made for the pardons There were four pardons under the Great Seal granted to Mountague Sibthorpe Cosens and Manwering it pardons all Treasons Premunires Errors erronious Opinions and all false Doctrines scandalous Speeches or Books and all offences by word and deed all corrupt contracts c. Treason to the person of the King and Witchcraft onely excepted Mr. Rousse HEre are four persons that have made the Common-wealth sick thus by the Phisick you see the Diseases but I conceive there is other physick to be ministered to those rotten Members for questionless this is not to be cured but by cutting off those Members Mr. Kirton MAster Kirton moved that the procurers of these Pardons might be enquired after that it might be seen who gave order to the Signet for the going forth of those Pardons for questionless there are Cosens at Court too Sir Robert Philips IF ever any was abused it was our King in granting those pardons we would save the time of doing any thing if this be not searched to the bottom The goodness of our King is much abused I desire the Attorney may give account by what Warrant he drew these pardons so shall we find out those that misled the King to the heart-grief of us all It is high time to find out all these things A Committee was hereupon named to enquire who have been the Solicitors and Procurers of these pardons Sir Edward Giles I Know not what prevention may happen in these for questionless the devil of hell hath his hand in it Therefore presently let us send for Mr. Attorney Which was Ordered Sir Iames Perotte SIr Iames Perotte complaineth further of some instruments of the Bishop of London and Doctor Turner who denied the License of printing the Articles of Ireland That diverse books have been licensed by the Bishop of Londons Chapplains and then refuse the same declaring they are of a contrary opinion and haven given license to Mr. Chomley and Mr. Butterfield and therefore would not give license to these Mr. Pym MAster Pym doth make a full Report of all the proceedings against Mr. Mountague since the last Parliament of King Iames. Sir Robert Phillips REported from Mr. Attorney that my Lord of Dorset spoke to him to hasten the Pardons and that he received a Warrant from the King for drawing them that my Lord Carleton brought another Warrant from the King for drawing these pardons telling him that he must make expedition therein and he must draw the same as the Councel of the parties did direct the same
the Communion Tables stood as Tables in Ale-houses but he would have them to be set as High Altars Dr. Moor is to deliver these things in writing to Morrow morning At the Committee for Religion SIr William Bawstrod If we now speak not we may for ever hold our peace when besides the Queens Mass there are two other Masses dayly so that it is grown ordinarie with the out-facing Iesuits and common in discourse Will you go to Mass or have you been at Mass at Somerset-house there coming 500 at a time from Mass. Desires to know by what authoritie the Iesuits lately in Newgate were released Mr. Corington Doubts not but his Majesties intention was good in the Declaration lately published but I conceive it will be made use of onely to our disadvantage that therefore the Declaration made be taken into consideration Sir Richard Gravenor REports the proceedings of this House against Poperie the last Session and what fruits have been thereon Sir Rober Phillips If ever there were a necessitie of dealing plainly and freely this is the time There is an Admission of Priests and Iesuits as if it were in Spain or France this increase of Papists is by connivance of persons in Authoritie Nine hundred and fourtie persons in houses of Religion being English Irish and Scots in the Netherlands maintained by the Papists of England and of this I shall deliver the particulars that we may frame a Remonstrance to the King that unless there be some better performance of his Majesties late answers to so many Petitions our Religion will be past recoverie Mr. Corington That the Papists by Act of Parliament or Laws of State may be removed from their offices which we have just cause to suspect Mr. Selden moveth that these things may be debated in order and first for releasing the Iesuits that were arraigned at Newgate whereof one was condemned they were 10 in number which were Priests who had begun a Colledge here in London about Clarkenwell and these men could not attempt these acts of boldness but they must have great countenancers Secretarie Cook THat a Minister who is said to be himself having notice of these 10 and this Colledge intended to be kept at Clarkenwell That it is plain there was a place appointed for this Colledge and Orders and Relicts prepared This Minister made the King acquainted with it and I should not do my dutie if I should not declare how much his Majestie was affected with it His Majestie refers it to the special care of the Lords of the Councell who examining the same sent these ten persons to Newgate and gave order to Mr. Attorney to prosecute the Law against them That this Colledge was first at Edmonton removed from thence to Camerwell and thence to Clerkenwell Ordered That all the Knights and Burgesses of the House shall to Morrow morning declare their knowledge what Letters or other hinderances have been for the staying of proceedings against Recusants Mr. Long a Justice of Peace who is said to understand much in the business of the Colledge of Iesuits at Clarkenwell is sent for and examined saith by the appointment of Mr. Secretarie Cook he apprehended these persons and took their Examinations and saith further he heard they were delivered out of Newgate by order from Mr. Attorney That Mr. Middlemore or General Soliciter for the Papists hired this house for the Lord of Shrewsburie a Papist and that there are diverse books of account of payments and disbursments to the value of 300 pounds per Annum with diverse Recusants names who allowed towards the maitenance of this Colledge and these books and papers are in the hand of Mr. Secretary Cook Secretarie Cook saith he cannot so amply declare the truth of the proceedings herein untill he have leave from his Majestie One Cross a Pursevant is to be examined upon oath who declareth he could discover diverse stoppages of the execution of the Laws against Recusants Saturday 14. A Complaint against the Lord Lambert a Baron of Ireland and a Member of this House who being a Colonel of Souldiers in Midd. hath imposed Four pence upon every Souldier towards his Officers Charges and the Petitioner for refusing to pay was first set in the Stocks and after by the Lord Lambert committed to a Publick prison It is Ordered that the Lord Lambert shall be sent for to answer this Sir Iohn Epsley desireth leave to answer a Complaint that is in the Lords house of Parliament against him Mr Selden That the use was and citeth Presidents that no Commander could be called to the Lords House but it will trench much to the disadvantage of the Priviledge of this House and untill 18. Iac. there was never President to the contrarie That therefore this may be considered of by a select Committee Ordered that Sir Iohn Epsley shall not have leave Mr. Chancellor of the Dutchie stifly secondeth Mr. Seldens Motion Mr. Secretarie Cook I am as carefull to maintain a good correspondencie with the Lords as any man but connivances in this kind may overthrow the fundamental Rights and Liberties of this House Let it therefore seriously be considered of for this not onely concerneth the Right of this House but the Libertie of the Common-wealth Ordered a select Committee shall be appointed to consider this Mr. Chancellor of the Dutchie delivereth an answer in writing from the Lord Chancellor Trer. and Barons to the Message sent to them Mr. Kirton WE looked for Satisfaction but now you see a Justification of their actions I therefore desire now we may proceed to consider of their proceedings and whether ever the Court of Exchequer held this course before for staying of Replevies and whether these have been done by the Regal Prerogative of the King in his Court of Exchequer It is Ordered that a select Committee of Lawyers Chequer-men shall take this into consideration Mr. Selden We have delayed the proceeding with the Customers expecting some good success from the Chequer but finding it otherwise I desire the Customers may be called to the Barre on Munday next Which is Ordered At the Committee for Religion SIr Thomas Hobbie from the Committee reported for the examination of the Keeper and Clerk of Newgate concerning the Priests there being a Warrant under the Attorneys hand for the deliverie of the Persons a Warrant under the Lord Chief Justices hand according to a Letter which he received from the Lord of Dorset signifying that it was his Majesties pleasure that the Priest condemned should be reprived Another Warrant under the Attorneys hand that the Priests condemned should be reprived and also in the Kings name to release those other nine persons Sir Nathaniel Ritch I am confident the Grace of the King hath been abused in this that therefore the privie Counsellers of this House may know whether it were his Majesties direction It is moved that Mr. Secretarie Cook may first declare his knowledge in this One Cross gave intimation of these persons First
the Secretarie Super totam maternam It is evident that the Colledge at Clarkenwell is a Colledge of Iesuits holden under a Forreign Supream power Sir Francis Seymour taxeth Mr. Attorneys affection and judgement in this and also declareth continual Letters from Mr. Attorney in stay of proceedings against Recusants You see in this how slightly Mr. Attorney hath put over a business of this weight to Mr. Long. Cross the Pursevant saith there was an Eleventh man in the New Prison and the Keeper of that Prison said he was delivered by Warrant from the Councel-board Sir Iohn Elliot No man could find a way on which to vent his malice so much to this Church and State as by protecting these men That this may be fixed home on that great Lord of Dorset that I fear hath defiled his fingers too far in this business and on Mr. Attorney whom I am sorrie I have occasion to nominate so often in this matter of Religion in stopping of proceedings against Recusants Mr. Recorder is ordered to be sent for and to be examined in this rather than to be sent for having had the Honor formerly to sit in the Chair Secretarie Cook saith we shall find that the King being mercifull in case of shedding bloud gave direction for the repriving of those Priests Sir Iohn Elliot I doubt not when we shall declare the depth of this to his Majestie but he will render them to judgement that gave him advice herein Sir Nath. Ritch These Iesuits are bound by Sureties to answer further at the Councel-board I wish these Bonds would produce these Men that by examination of them we may find out the whole pack of their Benefactors and Countenancers Mr. Long saith that he offering at Session the Evidence by order from M. Attorney the Lord Chief Justice Richardson interrupted him and told him he must speak to the point in issue whether Priests or no Priests and hereupon the Judges consulted amongst themselves Mr. Selden saith he was present at the Sessions and plain Treason was proved and nothing done in it The further examination of this is referred to a select Committee Munday 16. A Petition of Complaint against Sir Henry Martin for disposing of the goods of one Brown who died intestate to his own private use Sir Henry Martin If I prove not my self as clear of this as St. Iohn Baptist let me be reckoned to be a Jew Referred to the Committee for course of Justice At the Committee for Religion MAster Stroud That the Lord Chief Justice may be called to give an account of his stay of Justice in the execution of the condemned Priests which he ought not to have done though his Majestie signified his pleasure to the contrarie Chancellor of the Dutchie That was a thing ordinarie for a Chief Justice to do in Queen Elisabeths and King Iames times as also a Declaration in the Star-chamber that all condemned Priests should be sent to the Castle of Wisbitch and from hence though the King had given no order for the replevie he might have taken his Warrant for his proceedings Mr. Selden reporteth from the Committee for the further examination of Mr. Long concerning the proceeding at Newgate against the Iesuits whereby plainly appeareth that the evidence tendered in the Court at Newgate did plainly testifie these men to be Priests yet the Lord Chief Justice Richardson did reject the same against the sence of the rest of the Judges and Justices present whereby it is plain he dealt under-hand to some of the Iesuites Ordered That two Members shall be sent to each Judge that were present at the Sessions at Newgate who were said to be the Lord Chief Justice of the Kings Bench the Chief Justice of the Common-pleas Justice Whitlock Justice Iones and Justice Crook Tuseday 17. MAster Chambers preferreth another Petition in complaint of a Warrant newly proceeding from the Councel-board for the stay of the Merchants goods unless they payed the duties that were due in King Iames his time Sir Iohn Elliot You see as by the last answer from the Exchequer the Merchants were bounded within the Court to sue for their own so they are now debarred from all means of coming by their own It is Ordered that the Customers shall attend the House on Thurseday next In the mean time it is referred to the former Committee Ordered a Committee of six to Collect and take all the names at the Fast and to meet at eight of the Clock in the Morning Ordered That a Committee shall consider of a speedie way to put the Merchants in Possession of their goods without which it is warned we sit here in vain Sir Thomas Hobbie Reported from my Lord Chief Justice Hide that he doth not remember any Papers tendred by Mr. Long were rejected or that he affirmed they were dangerous persons and a Colledge of Iesuits but howsoever Mr. Long tendred nothing to prove them so but that he had diverse papers in his hand Mr. Wansford Reported from the Lord Chief Justice Richardson who saith that Mr. Long did discourse of the place and house but did not press the reading of any papers neither doth he know what was in the papers neither knew he any thing to prove the persons Priests Sir Thomas Barrington delivereth the answer of Justice Iones who saith the same papers were offered by Mr. Long but he knoweth not the Contents thereof nor the reason why they were refused but he came late for want of his health and the second day was not there at all The like was Reported by Sir Will. Constable from Justice Crook Sir Thomas Barrington saith Although that Justice Iones did not write the name of my Lord Chief Justice Richardson yet in discourse named him to be the man that said The point in proof is not whether they be Priests or no Priests Sir Nath. Ritch Here is a charge of a high nature on the Judges by Mr. Long. That Mr. Long now may make good his Charge or suffer for it for there were witnesses enough in the Court. Ordered Mr. Long to be here on Thurseday Morning Ordered That the Justices about this time shall be required to deliver in the names of all Recusants remaining about the Town and their conditions and what Countrey they be It is Moved That the Gentlemen of the Inns of Court and of the Chancerie may give in their knowledge what Recusants are there Sir Iohn Stanhope That the Court may give in the names of Recusants there likewise by what Warrant these be about the Town and what publick charge of Office any of these persons have also what Priests and Iesuites are in any prison in London for they have libertie sometimes to go five miles to say Mass. Wednesday 18. A Publick Fast was kept by this House in Westminster where were three Sermons Thursday 19. MAster Dawes one of the Customers called in to answer the point of Priviledge in taking Mr. Rolles his goods being a Member of this
I conceive it plain these Customers took the goods in their own right not in the Kings In this Priviledge is plainly broken wherein it is easily determined Mr. Banks In this case there is no interposing of the Kings Right and the King this Parliament hath declared as much That the Courts at Westminster do grant 12 days priviledge to any man to inform his Councel much more the Court of Parliament are to have their Priviledge The Kings Command cannot extend to authorize any man to break the Priviledges no more than it will warrant an entrie upon any mans Land without process of Law Mr. Soliciter If the King have no Right how can he make a Lease then this pretended interest of the Customers must needs be void and therefore the goods must not be taken on their own right but in the right of the King Mr. Selden If there were any right the pretended right were in the Subject First whether Priviledge in goods Secondly whether the right were in the Customers onely Thirdly whether priviledge against the King 1. If the Lords have no priviledge in Parliaments for their goods then have they no priviledge at all for they are priviledged in their persons out of Parliament 2. For the point of interest it is plain no kind of Covenant can alter the interest and questionless had the cause in the Exchequer appeared to the Barons as it doth to us they would never have proceeded as they did 3. If our goods may be seized into the Exchequer be it right or wrong we were then as good have nothing Sir Nath. Ritch 〈…〉 recorded the last Session and citeth other presidents in this House that a servant of a Member in Parliament ought to have priviledge in his goods Mr. Noy saith that these Commissioners had neither Commission nor Command to seize Therefore without doubt we may proceed safely to the other question That the priviledge is broken by the Customers without relation to any Commission or Command of the King Secretarie Cook saith It is in the Commission to seize but the Commission being read it is not found to be there Chancellor of the Dutchie saith Mr. Dawes mentioned that he seized these goods by virtue of a Commission and other Warrants remaining in the hands of Sir Iohn Elliot that therefore these Warrants may be seen whether there be no command to seize these goods Sir Nathaniel Ritch This days debate much joyeth me specially the motion made by Mr. Noy whereby it is plain we have a way open to go to this question without relation to the Kings Commission or Command and desire it in respect there appears nothing before us to incumber the question Chancellor of the Dutchie desires again these Warrants may be look into before we go to the question Mr. Kirton In respect this Honorable Gentleman presseth this so far that it may appear with what judgement this House hath proceeded Mr. Glanveil I consent these Warrants be sent for and read but withall if any thing arise that may produce any thing of ill consequence let it be considered from whence it doth come The Privie Councellers are contented with this Motion The Warrants being sent for and read it is plain there is no Warrant to seize Mr. Kirton If now there be any thing of doubt I desire those Honorable persons may make their objections Chancellor of the Dutchie I rejoyce when I can go to the Court able to justifie your proceedings I confess I see nothing now but that we may safely proceed to the Question Mr. Secretarie Cook saith as much Mr. Hackwell argueth against Priviledge in time of Prorogation Mr. Noy saith he had no doubt but that Priviledge was in force in time of Prorogation untill he heard this Argument of Prorogation of Mr. Hackwell and saith that he hath nothing from him yet that doth alter his opinion and citeth a cause wherein the Lords House hath this verie Prorogation adjudged the Priviledge Mr. Hackwell saith he is glad to hear it is so and he is now of the same opinion Decided by Question That Mr. Rolles ought to have Priviledge of Parliament for his goods seised 30 Octob. 5 Iac. and all sithence This Committee is adjourned untill Munday and the Customers to attend The Protestation of the COMMONS in Parliament on Munday 2. Mar. 1628. 1. WHosoever shall bring in an Innovation in Religion or by favour or countenance seek to extend or introduce Poperie or Arminianisme or other Opinion differing from the true and orthodox profession of our Church shall be reputed a Capital enemie to this Kingdom and Common-wealth 2. Whosoever shall counsel or advise the taking or leavying of the Subsedies of Tonage and Poundage not being granted by Parliament or shall be an Actor or an Instrument therein shall likewise be reputed an Innovator in the Government and a Capital enemie to the Kingdom and Common-wealth 3. If any Merchant or other person whatsoever shall voluntarily yield or pay the said Subsedie of Tonnage or Poundage not being granted by Parliament he shall likewise be reputed a Betrayer of the Liberties of England and an enemie to the same THE KINGS SPEECH in the House of PARLIAMENT Mar. 10. 1628. to Dissolve it My LORDS I Never came here upon so unpleasing occasion it being for the Dissolving of a PARLIAMENT therefore many may wonder why I did not rather choose to do this by my Commission it being the general Maxim of Kings to lay harsh commands by their Ministers themselves onely executing pleasing things But considering that Justice is as well in Commanding of Virtue as Punishing of Vice I thought it necessarie to come here to day to declare to you my Lords and all the world That it was onely the disobedient carriage of the Lower House that hath caused this Dissolution at this time and that you My Lords are so far from being causers of it that I have as much comfort in your Obedience manifested by all your carriage towards me as I have cause to distaste their proceedings Yet that I may be clearly understood I must needs say they do mistake me wondrously that think I lay this fault equally on all the Lower House for I know there are many there as dutifull Loyal Subjects as any are in the world I know that it was onely some Viâ—pers among them that did cast this mist of disobedience before their eyes although there were some there that could not be infected with this Contagion insomuch that some by their speaking which indeed was the general fault on the last day of the House did shew their obedience To conclude my Lords as those ill-affected persons must look for their reward so you that are here of the Higher House may justly claim from me that protection and favour that a good King bears to his Loyal and Faithfull Subjects and Nobilitie Now my Lords execute that which I Command you Lord KEEPER MY Lords and Gentlemen of the House of Commons the KINGS Majestie
King is as an Angel of God of a quick of a noble and just apprehension he straines not at gnats he will easily distinguish between a vapour and a fogg between a mist of errour and a cloud of evill right he knowes if the heart be right Out of the abundance of the heart the mouth speakes You proceed to a survey of the lustre of this great and glorious Assemblie and in that as in a curious Crystall you observe the true happinesse which we all here enjoy You have distributed and divided aright and whosoever sees it otherwise hath an evill eye or a false glasse We have enjoyed it long through the happy meanes of gracious and good Princes and the way to enjoy it still is to know and heartily to acknowledge it and that God hath not done so to any other Nation It is a prime cause or meanes of this our happinesse You mention the forme of Government under which we live a Monarchie and the best of Monarchies where Sovereignty is hereditarie no Inter-Regnum nor competition for a Crown Descent and Succession are all one The Spirit of God by the mouth of the wisest of Kings long since proclaimed this happinesse Blessed art thou O Land where thy King is the son of Nobles The frames of other States are subject some to inconstant Levitie some to Faction some to Emulation and Ambition and all to manifold Distempers in which the People go to wrack The Monarchie is most naturall and in it Unity is the best cement of all government principally in respect of the unity of the Head which commands the rest And therefore other States when they have tryed a while doe for the most part resolve into this as into the best for Peace for Strength and for Continuance But formes of other governments though never so exact move not of themselves but are moved of their governours And therefore our Monarchie as you have truly said this glorious Assemblie the lively image and representation of our Monarchie is made happy and perfect by the Royall Presence that sits here in his highest Royal Throne the Throne of the Law-giver glorious in it selfe glorious by those happy Lawes and Oracles which have issued from it and most glorious by them that sit on it his Majestie and his Royall Progenitours incomparable Kings that with so much honour have swayed the Sceptre of this Kingdome so many successions of Ages In the next place after the Throne of Majestie you look into the Chaire of Doctrine the reverend Prelates and upon the state of Religion their proper charge This is the blessing of all blessings the priviledge and assurance that secures us of all the rest that as our Religion is most sincere and orthodoxe so our Clergie is eminent both for purity of Doctrine and integritie of Life our Priests are clothed with righteousnesse and their lips preserve knowledge and therefore God's Saints may and doe sing with joyfulnesse I must joyn with you in attributing this transcendent blessing to us as in the first place to God's goodnesse so in the second to his Majestie 's piety who following the steps of his ever-blessed Father is carefull that all the Lamps of the Church may be furnished with Oyle and especially those which are set on golden Candle-sticks with the purest and best oyle The Schools also and nurceries of Learning never so replenished especially with Divinity as in this last Age as they all shew his Majestie 's Piety so are they infallible Arguments of his Constancy The triall which you call the fierie triall undergone by his Majestie in the place of danger and again the power and policie of Rome and Spaine hath approved his resolution inimitable and his own remarkable example in his closet and his chamber his strict over-sight of and command to his Houshold servants and his charge to his Bishops and Judges his Edicts his Proclamations and Commissions and the like for the execution of the Lawes and his general care to preserve the fountain pure both from Schisme and Superstition are faire fruits and effects of a pious and zealous resolution From the chaire of Doctrine you turn to the state of Honour unto the Nobles and Barons of England These are Robâ—r belli who for the service of the King and Kingdome are to make good with their Swords what the Church-men must hallow and blesse by their Prayers And therefore as the Prelates are the great Lights of the Church so the Nobility are the Starres of the State and you know that the starres have fought and fought powerfully against the enemies of God From the state of Honour you come to the state of Justice and to the twelve Lyons under Solomon's Throne the Iudges and Sages of the Law and as their peculiar charge intrusted to them by our Sovereigne the Lawes of the Kingdome Lawes undoubtedly fitted to the constitution of this people for Leges Angliae and Consuetudines Angliae are Synonyma and Consuetudo est altera natura so as besides the justnesse and rightnesse of the Lawes they are become naturall to our people and that is one of the powerfullest meanes which begetteth obedience and such Lawes in the mouthes of learned and upright Judges are like waters in a pure chanel which the fairer it runs the clearer they run and produce that whereof Solomon speaks Prov. 29.2 When the righteous are in authority the People rejoyce From the Law you passe to the Knights Citizens and Burgesses and the third Estate who represent the Commons of England in whom the Scripture is verified In the multitude of People is the Kings honour and therefore you may be sure that distance of place and order breeds no distance in affection for wise Kings ever lay their honour next to their hearts Kings are Pastores populi and the Shepherds care is nothing lesse to the furthest then to the next part of his Flock and it is asmuch towards the least of his Lambs as towards the greatest Cattel And as in the Natural bodie no member is so remote but it is still within the care of the head so in this great Politick bodie of the Kingdome no ranck or order of People so low is at such distance from the Throne but it dayly feeles the influence and benefit of the Kings care and protection And to say the truth in a well-governed Kingdome the superiour rancks of Nobles of Judges and of Magistrates are not ordained for themselves but as conduits for the Kings justice protection and goodnesse to the lower rancks of his People And as the People are so its just cause they should be constant to the Poles of Love and Loyalty And thus having perused both Houses by divided parts joyn them together and in that juncture you believe truly and materially that the greatest denyal of their joynt requests is The King will advise A note very remarkable It shewes the indulgence of Kings it shews also the wisdom and judgement of the Houses the
touching this point The King saith he and the Subject hath two liberties Two Mannors joyning one upon another the King is informed the Subject hath intruded upon him but upon triall it appeareth not to be so were it fitting think you that the Subject should give security that he should not incroach or intrude on that Mannor of his because the King had been informed he did so I think you will be of another minde wherefore I am commanded seeing we cannot admit of this addition to desire your Lordships to joyn with us in the Petition which being granted and the hearts of the King and people knit togeather I doubt not but his Majestie will be safe at home and feared abroad Sir HENRY MARTINS Speech MY Lords the work of this day wherein the House of Commons hath implyed the Gentleman that spake last and my self was to reply to the answer which it hath pleased the Lord Keeper to make to those reasons which we had offered to your Lordships consideration in justification of our refusall not to admit into our Petition the addition commended by your Lordships which reasons of ours since they have not given such satisfaction as we desired and well hoped as by the Lord Keepers answer appeared It was thought fit for our better order and method in replying to divide the Lord Keepers answer into two parts a Leagall and a Rationall The reply to the leagall your Lordships have heard my self comes intrusted to reply to the rational which also consisted of two branches the first deduced from the whole context of the additional clause the second inforced out of some part In the first were these reasons that the same deserved our acceptance First as satisfactory to the King Secondly to your Lordships Thirdly agreeable to what our selves had often protested and professed expresly by the mouth of our Speaker I must confess these motives were weighty and of great force and therefore to avoid misunderstanding and misconceit which otherwise might be taken against the House of Commons upon refusall of the propounded addition It is necessary to State the question rightly and to set down the true difference between your Lordships and us Now indeed there is no difference or question between your Lordships and us concerning this additional clause in the nature and quality of a proposition For so considered we say it is most true and to be received and imbraced by us In toto qualibet parte qualibet syllaba yea and were that the question we should add to this addition and instead of due regard say we have had have and ever will have a special and singular regard where to leave entire Sovereign power were to intimate as if we had first cropt it and then left it but our regard was to acknowledge and confess it sincerely and to maintain it constantly even to the hazard of our goods and lives if need be To which purpose your Lordships may be pleased to remember that strict oath every Member of our House hath taken this very session in these words I A. B. do utterly testifie and declare in my Conscience that the Kings highness is the Supreme or Sovereign Governour of this Realm in all Causes c. and to my utmost power will assist and defend all Iurisdictions Priviledges Preheminencies and Authorities granted or belonging to the Kings Highness or united or annexed to the Imperial Crown of this Realm c. So that your Lordships need not to borrow from our protestations any exhortations to us to entertain a writing in assistance of the Kings Sovereign power since we stand obliged by the most Sacred bond of a solemn Oath to assist and defend the same if cause or occasion so required So that the onely question between your Lordships and us is whether this clause should be added to our Petition and received into it as part thereof which to do your Lordships reasons have not perswaded us because so to admit it were to overthrow the fabrick and substance of our Petition of Right and to annihilate the Right pretended by us and the Petition it felf in effect For these words being added to our Petition viz we humbly present this Petition c. with due regard to leave intire your Sovereign power c. do include manifestly an exception to our Petition and an exception being of the nature of the thing whereunto it is an exception Exceptio est de regula must of necessity destroy the rule or Petition so far as to the Case excepted Exceptio firmat regulam in Casibus non exceptis in Casibus exceptis distruit Regulam Then this construction followeth upon our Petition thus inlarged that after we have Petitioned That no Freeman should be compelled by imprisonment to lend or contribute money to his Majestie without his assent in Parliament nor receive against his will Souldiers into his house or undergo a commission of Martiall Law for life or Member in time of peace We should add except his Majestie be pleased to require our monies and imprison us for not lending and send Souldiers into our houses and execute us by Martiall Law in time of peace by virtue of his Soveraign power Which construction as it followeth necessarily upon this inlargment so it concludeth against our Right in the premisses and utterly frustrateth all our Petition neither may it seem strange if this clause additionall which of it self in quallity of a proposition we confess being added to our Petition which also is true should overthrow the very frame and fabrick of it seeing the Logicians take knowledge of such a Fallacy called by them Fallacia à bene divisis ad male conjuncta Horace the Poet giveth an instance to this purpose in a painter who when he had painted the head of a Man according to Art would then joyn to it the neck of a horse and so marr the one and the other whereas each by it self might have been a peice of right good workmanship The second branch of my Lordkeepers rationall parte was enforced out of the last words of this addition by which his Lordship said that they did not leave intire all Soveraign power but that wherewith his Majestie is trusted for the protection safety and happiness of the people as if his Lordship would infer that Soveraign power wherewith c. in this place to be terminum diminuentem â— term of diminution or quallification and in that consideration might induce us to accept it but under his Lordships correction we cannot so interpret it For first we are assured that there is no Sovereign power wherewith his Majestie is trusted either by God or Man but onely that which is for the protection safety and happiness of his people and therefore that limitation can make no impression upon us but we conceive it rather in this place to have the force termini adaâ—gentis to be a term of important advantage against our Petition a term of restriction and that
doth Dissolve this Parliament wherefore you have all free leave to depart to your Residences c. His MAIESTIES Letter with Queres concerning Ship-money and the Answer thereunto To Our trustie and welbeloved Sir Iohn Bramston Knight Chief Justices of our Bench Sir Iohn Finch Knight Chief Justice of our Court of Common-pleas Sir Humphrey Davenport Knight Chief Baron of Our Court of Exchequer and to the rest of the Judges of Our Courts of Kings Bench Common-pleas and the Barons of our Court of Exchequer CHARLES R. TRustie and welbeloved We greet you well Taking into Our Princely consideration that the Honor and Safetie of this our Realm of England the preservation whereof is onely intrusted to Our care was and is now more dearly concerned than in late former times as well by diverse Counsels and attempts to take from Us the Dominion of the Seas of which We are sole Lord and rightfull Owner or Propriator and the loss whereof would be of greatest danger and peril to this Kingdom and other our Dominions and many other wayes We for the avoiding of these and the like dangers well weighing with Our self that where the good and safety of the Kingdom in general is concerned and the whole Kingdom in danger there the charge and defence ought to be born by all the Realm in general did for preventing so publick a mischief resolve with Our self to have a Royal Navie provided that might be of force and power with Almightie Gods blessing and assistance to protect and defend this our Realm and our Subjects therein from all such perils and dangers and for that purpose We issued forth Writs under Our Great Seal of England directed to all Our Sheriffs of Our several Counties of England and Wales Commanding thereby all Our said Subjects in every Citie Town and Village to provide such a number of Ships well furnished as might serve for this Royal purpose and which might be done with the greatest equallitie that could be In performance whereof though generally throughout all the Counties of this Our Realm We have found in Our Subjects great chearfulness and alacritie which We graciously interpret as a testimonie as well of their dutifull affections to Us and Our service as of the respest they have to the publick which well becometh every good Subject nevertheless finding that some few happily out of ignorance what the Laws and Customs of this Realm are or out of a desire to be eased and freed in their particulars how general soever the charge be or ought to be have not yet paid and contributed the several Rates and Assesments that were set upon them foreseeing in our Princely wisdom that from hence diverse Suits and Actions are not unlikely to be commenced and prosecuted in Our several Courts at Westminster We desireous to avoid such inconveniences and out of Our Princely love and affection to all our people being willing to prevent such errors as any of Our loving Subjects may happen to run into have thought fit in a Case of this nature to advise with you Our Iudges who we doubt not are all well studied and informed in the rights of Our Sovereigntie And because the Trials in Our several Courts by the formalities in pleading will require a long protraction We have thought fit by this Letter directed to you all to require your Iudgements in the Case as it is set down in the inclosed Paper which will not onely gain time but also be of more Authoritie to over-rule any prejudicate opinions of others in the point Given under Our Signet at Our Court of White-hall the Second day of Febr. in the Twelfth Year of our Reign 1636. CHARLES R. WHen the good and safetie of the Kingdom in general is concerned and the whole Kingdom in danger Whether may not the KING by Writ under the Great Seal of England Command all the Subjects of this Kingdom at their charge to provide and furnish such number of Ships with Men Victuals and Munition and for such time as he shall think fit for the defence and safeguard of the Kingdom from such danger and peril and by Law compel the doing thereof in case of refusal or refractoriness And whether in such case is not the KING the sole Judge both of the danger and when and how the same is to be prevented and avoided CHARLES REX Answer MAy it please Your most excellent Majestie We have according to Your Majesties Command severally every man by himself and all of us together taken into serious consideration the Case and Questions signed by your Majestie and inclosed in your Royal Letter and we are of opinion that when the good and safetie of the Kingdom in general is concerned and the whole Kingdom in danger Your Majestie may by Writ under the Great Seal of England Command all the Subjects of this Your Kingdom at their charge to provide and furnish such number of Ships with Men Victual and Munition and for such time as Your Majestie shall think fit for the defence and safeguard of the Kingdom from such danger and peril and that by Law Your Majestie may compel the doing thereof in Case of refusal or refractoriness And we are also of opinion That in such Case Your Majestie is the sole Iudge both of the danger and when and how the same is to be prevented and avoided John Bramston John Finch Humfrey Davenport John Denham Richard Hutton William Jones George Crook Thomas Trevor George Vernon Robert Barkley Francis Crawley Richard Weston FINIS