Duke could alter it 4. That when the Ordinance were shipt at S. Martins the Duke caused the Souldiers to go one that they might be destroyed 5. That the Duke said he had an Army of 16000. Foot and 1200. Horse 6. That King Iames his bloud and Marquess Hambletons with others cries out for vengeance to Heaven 7. That he could not expect any thing but ruine of this Kingdom 8. That Prince Henry was poysoned by Sir Thomas Overbury and he himself served with the same sawce and that the Earl of Sommerset could say much to this 9. That he himself had a Cardinal to his Uncle or near Kinsman whereby he had great intelligence A Privy Seal for the transporting of Horses 30 January 3. CAROLâ— CHarles by the grace of God King of England Scotland France and Ireland defendor of the faith c. To the Treasurer and under Treasurer of our Exchequer for the time being greeting We do 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 〈◊〉 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 Thomaâ— 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 Moâ—ton 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 somuch concern us in the first and chiefest place to recommend this to your â—peciall 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 attendanc 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
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 shâ—wn 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 you 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 Miles 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
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 fo 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 occasion 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 of the Citie by the undue pronouncing and return of S r. Thomas Savil Knight to be one of the Cittizens to serve in this Parliament for the said Citie whereas I ought of right to have pronounced and returned in his place M r. Thomas Royle Alderman of the said Citie I am hartily sorry for my said offence and misdemeanour and crave pardon of my Lord Major and all the Cominalty and in particuler of the said Alderman Hoyl for the same I Robert Henisworth Alderman of the Citie of York do acknowledge that I have offended the Lord Major and all the Cominalty of of the said Citie by my undue preparing and practising the election of S r. Thomas Savill Knight to be chosen one of the Cittizens for the said Cittie of York to serve in this present Parliament I am hartily sorry for my said offence and do desire my Lord Major and all the said Cominalty to pardon me for the same Propositions drawn for the defence of this Kingdom and the annoyance of the enemies of the same by Sea THat every Shire in England shall be injoyned on the charge of the Countrey to set forth one Ship well maned and victualled for 7. Moneths and to be of the burthen of 500 300 or 140. Tuns at the least according to the ability of the Shire in the opinion of the State That every Port or Sea-Town according to their abillity be injoyned to do the like London may well furnish 10. Bristol 3. and the rest according to their abillity And such of the Sea-Towns as are not of abillity to set forth Ships of the burthen aforesaid to furnish out Pinnaces of 60 or 80 Tuns for Light-Horsmen or Intelligencers Those Ships will amount to 80. Sail and above and these to be divided into 4. Squadrons adjoyning unto every Squadron one of the Kings Ships for their Admiral The first Squadron to lye off and on the Western Ilands and as â—igh as theiâ— aâ—â—ries for 〈◊〉 men the Caracks and the Plate-Fleet and all other trading that way 〈…〉 The fourth Squadron to keep the Narrow Seas to awe the Dunkerkers to take all the French trade and so Northward and this Squadron to be still relieved with fresh Ships as the other shall grow foul or come to any misfortune so as this Squadron may continually keep the Seas most part of the year That no Master of these Ships be owner or have any part in her that he goeth in Master of for they will be unwilling to bring their Shin in fight or danger and use many tricks and devices especially if there be an ignorant Captain Therefore it is expedient likewise that every Shire should nominate a Captain for the Ship that they furnish out for the avoiding of ignorant and insufficient Captains That in London Pâ—rtsmouth or elsew here where the State shall think fit there be Store-houses appointed for the receipt of such Prizes as shall be taken by any of the 4. Squadrons That every County or Sea-Town that furnisheth the said shipping may nominate and have a Master of their own free election that may have power in the behalf of the Counties and Sea-Towns as the other Officers that shall be appointed for the King for the opening of decks of the Prizes receiving the goods into the said Store-houses and for the divideing and disposing them according That what Prizes any of the 4. Squadrons shall take be brought into one of the Port Towns where those Store-houses are appointed and the benefit of all Prizes what Squadron soever of the 4. sendeth them in be divided the Kings part
14 M r. Goodwins speech March 22. pag. 18 Sir Francis Seymour's speech ibid. Sir Thomas Wentworth's speech pag. 20 The speech and Argument of M r. Creswell of Lincolnes Inne concerning the subjects grievance by the late Imprisonment of their persons pag. 21 Sir Benjam Ruddier's speech pag. 27 Sir Robert Phillip'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 Debatesconcerning 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 page 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 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.
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 Lincolnien sis Episcopus per Literas suas Patentes quod R. suus Parochial ' propter suam manifestaÌ„ 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 Vicecom ' 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 â—ffic Archdiac London mutuae vicissitudin ' obtentu scripsit ut ipsum absolvat ab excom ' senten ' memorata sicut idem Archiepiscopus per Literas suas Patentes
cause of his imprisonment to be shewn upon the return so that the Court may adjudge of the cause whether the cause of the imprisonment be lawfull or not and because I will not trouble the Court with so many presidents but such as shall suit with the cause in question I will onely produce and vouch such presidents whereas the party was committed either by the commandment of the King or otherwise by the commandment of the Privy Councell which Stampford fol. 72. tearmeth the mouth of the King such acts as are done by the Privy Councell being as Acts done by the King himself And in all these causes you shall find that there is a cause returned as well as a speciale mandatum domini Regis c. or mandatum Privati Concilii domini Regis whereby the Court may adjudge of the cause and bail them if they shall see cause In the eighth of Henry the seventh upon return of an Habeas corpus awarded for the body of one Roger Sherry it appeareth that he was committed by the Mayor of Windsor for suspicion of felony and ad sectam ipsius Regis pro quibusdam feloniis transgressionibus ac per mandatum domini Regis 21 Hen. the seventh upon the return of an Habeas corpus sent for the body of Hugh Pain it appeared that he was committed to prison per mandatum dominorum Privati Concilii domini Regis pro suspicione feloniae Primo Henrici Octavi Rot. 9. upon the return of an Habeas corpus sent for the body of one Thomas Harrison and others it appears that they were committed to the Earl of Shrewsbury being Marshall of the houshould Per mandatum Domini Regis pro suspicione feloniae pro homicidio facto super Mare 3 4 Philip. Mariae upon a return of an Habeas corpus sent for the body of one Peter Man it appeareth that he was committed pro suspicione feloniae ac per mandatum Domini Regis Reginae 4 5 Philippi Mariae upon the return of an Habeas corpus sent for the body of one Thomas Newport it appeared that he was committed to the Tower pro suspicione contrafact monetae per privatum Concilium domini Regis Reginae 33 Elizabethae upon the return of an Habeas corpus for the body of one Lawrence Brown it appeareth that he was committed per mandatum Privati Concilii dominae Reginae pro diversis causis ipsam Reginam tangen ac etiam pro suspicione proditionis So as by all these presidents it appeareth where the return is either Per mandatum domini Regis or Per mandatum dominorum Privati Concilii domini Regis there is also a cause over and besides the mandatum returned as unto that which may be objected that per mandatum domini Regis or Privati Concilii domini Regis is a good return of his imprisonment I answer First that there is a cause for it is not to be presumed that the King or Councell would commit one to prison without some offence and therefore this mandatum being occasioned by the offence or fault the offence or fault must be the cause and not the command of the King or Councell which is occasioned by the cause Secondly it apeares that the jurisdiction of the Privy Councell is a limited jurisdiction for they have no power in all causes their power being restrained in certain causes by severall Acts of Parliament as it appeareth by the statute of 20 Edward the third c. 11. 25. Ed. the third c. 1. stat 4. the private petition in Parliament permitted in the 1 of R. 2. where the Commons petition that the Privie Councell might not make any Ordinance against the Common Law Customes or Statutes of the Realm the fourth of Henry the fourth ca. 3. 13 Hen. the fourth 7â—31 Henry the sixth and their jurisdictions being a limited jurisdiction the cause and grounds of their commitment ought to appear whereby it may appear if the Lords of the Councell did commit him for such a cause as was within their jurisdiction for if they did command me to be committed to prison for a cause whereof they had not jurisdiction the Court ought to discharge me of this imprisonment and howsoever the King is Vicarius Dei in terra yet Bracton cap. 8. fol. 107. saith quod nihil aliud potest Rex in terris cum sit Minister Dei Vicarius quam solum quod de jure potest nec obstat quod dicitur quod Principi placet legis habet vigorem quia sequitur in fine legis cum lege Regia quae de ejus imperio lata est id est non quicquid de voluntate Regis temere praesumptum est sed animo condendi Iura sed quod consilio Magistratuum suorum Rege author praestant habita super hoc deliberatione tract rect fuer definit Potestat itaque sua juris est non injuriae The which being so then also it ought to appear upon what cause the King committeth one to prison whereby the Judges which are indifferent between the King and his Subjects may judge whether his commitment be against the Laws and Statutes of this Realm or not Thirdly it is to be observed that the Kings command by his Writ of Habeas corpus is since the commandment of the King for his commitment and this being the latter commandment ought to be obeyed wherefore that commanding a return of the body cum causa detentionis there must be a return of some other cause then Per mandatum domini Regis the same commandment being before the return of the Writ Pasch. 9. E. 3. pl. 30. fol. 56. upon a Writ of Cessavit brought in the County of Northumberland the Defendants plead That by reason the Country being destroyed by Warres with the Scots King Edward the second gave command that no Writ of Cessavit should be brought during the Warres with Scotland and that the King had sent his Writ to surcease the Plea and he averreth that the Warres with Scotland did continue Hearle that giveth the Rule saith That we have command by the King that now is to hold this Plea wherefore we will not surcease for any writ of the King that is dead and so upon all these reasons and presidents formerly alledged I conclude that the return that Sir Iohn Corbet was committed and detained in prison Per speciale mandatum domini Regis without shewing the nature of the commandment by which the Court may judge whether the commandment be of such a nature as he ought to be detained in prison and that without shewing the cause upon which the commandment of the King is grounded is not good As unto the second part which is Whether the time of the commitment by the return of the Writ not appearing unto the Court the Court ought to detain him in prison or no I conceive that he ought not to be continued in prison admitting that the first
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 ratified 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 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 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 inâ—roach 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 conâ—ideration 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 Impâ—rial 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
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 condemmed 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 Whitlâ—ck Justice Iones and Justice â—rook 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 â—as 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