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
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 â—e 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 begunne 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 Monarâ—ui 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 wise 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 my self 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
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 afterwards be attainted yet the King shall not have them untill he have satisfied that for which they were distreined And if in these Cases where the owners of the goods are such capitall offendours the King cannot have them much lesse shall he have them when the owner is innocent and no offendour Nay I may well say that almost every leaf and page of all the volumes of our Common Law prove this right of propriety this distinction of meum and tuum aswell between King and Subject as one Subject and another and therefore my Conclusion follows that if the Prerogative extend not neither to Lands nor to Goods then à fortiori not to the Person which is more worth then either lands or goods as I said And yet I agree that by the very law of Nature service of the Person of the Subject is due to his Soveraigne but this must be in such things which are not against the law of Nature but to have the body imprisoned without any cause declared and so to become in bondage I am sure is contrary unto and against the law of Nature and therefore not to be inforced by the Soveraigne upon his Subjects 3. My next reason is drawn ab inuâ—ili incommodo For the Statute de frangentibus prisonam made 1 E. 2. is quod nullus qui prisonam fregerit subeat judicium vitae vel membrorum pro fractione prisonae tantum nisi causa pro qua captus imprisonetur tale Iudicium requirat Whence this Conclusion is clearly gathered That if a man be committed to prison without declaring what cause and then if either Malefactour do break the prison or the Gaoler suffer him to escape albeit the prisoner so escaping had committed Crimen laesae majestatis yet neither the Gaoler nor any other that procured his escape by the Law suffer any corporall punishment for setting him at large which if admitted might prove in consequence a matter of great danger to the Common-wealth 4. My next reason is drawn ab Regis honore from that great honour the Law doth attribute unto soveraigne Majesty and therefore the Rule of Law is that Solum Rex hoc non potest facere quod non potest juste agere And therefore if a Subject hath the donation and the King the presentation to a Church whereunto the King presents without the Subjects nomination here the quare impedit lies against the Incumbent and the King is in Law no disturber And Hussey chief Justice in 1 H. 7. fol. 4. saith that Sir Iohn Markâ—am told King Edw. 4. he could not arrest a man either for treason or fellony as a Subject might because that if the King did wrong the party could not have his Action against him What is the reason that an Action of false imprisonment lies against the Sheriff if he doth not return the Kings Writ by which he hath taken the body of the Subject but this because the Writ doth breviter enarrare causam eaptionis which if it doth not it shall abate and is void in Law and being returned the party when he appears may know what to answer and the Court upon what to judge And if the Kings Writ under his great Seal cannot imprison the Subject unlesse it contains the cause shall then the Kings warrant otherwise doe it without containing the cause that his Judges upon return thereof may likewise judge of the same either to remain or judge the partie imprisoned I should argue this point more closely upon the statute of Magna Charta 29. quod nullus liber homo imprisonetur the statute of West 1. cap. 15. for letting persons to bail and the Judgements lately given in the Kings Bench but the later of these statutes referring having been by that honourable Gent. to whom the Professours of the Law both in this and all succeding ages are and will be much bound already expounded unto us and that also fortified by those many contemporary Expositions and Judgements by him learnedly cited and there being many learned Lawyers here whose time I will not waste who were present and some of them perhaps of councell in the late Cause adjudged in the Kings Bench where you to whose person I now speak do well know I was absent being then of councel in a cause in another Court and my practice being in the Country farre remote from the treasure of Antiquity and Records conducing to the clearing of this point Therefore the narrowness of my understanding commends unto me sober ignorance rather then presumptuous knowledge and also commands me no further to trouble your Patience But I will conclude with that which I find reported of Sir Iohn Davis who was the Kings Serjeant and so by the duty of his place would no doubt maintain to his uttermost the Prerogatives of the King his royall Master and yet it was by him thus said in those Reports of his upon the case of Tavistry Customs That the Kings of England alwayes have had a Monarchy Royall and not a Monarchy Seignorall where under the first saith he the Subjects are Free-men and have propriety in their goods and free-hold and inheritance in their Lands but under the later they are as Villains and Slaves and have proprietie in nothing And therefore saith he when a Royall Monarch makes a new Conquest yet if he receives any of his Nations ancient Inhabitants into his protection they and their heirs after them shall enjoy their Lands and Liberties according to the Law And there he voucheth this President and Judgement following given before William the Conquerour himself viz. That one Sherborn at the time of the Conquest being owner of a Castle and lands in Norfolk the Conquerour gave the same to one Warren a Norman and Sherborn dying the Heir clayming the same by descent according to the Law it was before the Conquerour himself adjudged for the Heir and that the gift thereof by the Conquerour was void If then it were thus in the Conquerour's time by his own sentence and judgement and hath so continued in all the successions of our Kings ever since what doubt need we have but that his most excellent Majestie upon our humble petition prostrated at his feet which as was well said is the best passage to his heart will vouchsafe unto us our ancient Liberties and Birthrights with a through reformation of this and other just grievances And so I humbly crave pardon of this honourable House that I have made a short Lesson long Sir Benjamin Ruddier's Speech March 22. 1627. Mr. Speaker OF the mischiefs that have lately fallen upon us by the late distractions here is every man sensible and that may ensue the like which God forbid we may easily see and too late repent The eyes of Christendome are upon us and as we speed here so go the Fortunes of
hearts and affections loyally and religiously devoted to God and your Majesties service and to the safety of your Majesties Sacred Person we most zealously present to your Princely Wisdome craving your Majesties chearful and gracious approbation The King's Answer to the Petition against Recusants March 31. 1628. My Lords and Gentlemen I Do very well approve the method of your proceeding à Jove principium hoping that the rest of your Consultations will succeed the happier And I like the preamble of my Lord Keeper otherwise I should a little have suspected that you thought me not so carefull of Religion as I have been and ever shall be wherein I am as forward as you can desire As for the Petition I answere first in generall that I like it well and will use those as well as all other means for the maintenance and propagation of that Religion wherein I have lived and doe resolve to die But for the particulars you shall receive a more full answer hereafter And now I will only add this that as we pray to God to help us so we must help our selves for we can have no assurance of his assistance if we do ly in bed and only pray without using other means And therefore I must remember you that if we do not make provision speedily we shall not be able to put one Ship to sea this year Verbum sapienti satis est The Answer to the same Petition by the Lord Keeper Coventrey TO the first point his Majesty answereth That he will accoreding to your desire give both life and motion to the Laws that stand in force against Iesuits Seminary Priests and all that have taken Orders by authority of the Sea of Rome and to that end his Majesty will give strict order to all his Ministers for the discovering and apprehending of them and so leave them being apprehended to the triall of the Law and in case after tryall there shall be cause to respite the execution of any of them yet they shall be committed according to the example of best times to the Castle of Westbitch and there be safely kept from exercising their functions or spreading their Superstitious and dangerous Doctrine and for the receivers and abettors they shall be left to the Law To the second His Majesty granteth all that is desired in this Article and to this end will give order to the Lord Treasurer Lord high Admirall and Lord Warden of the Cinque Ports that in their severall places they be carefull to see this Article fully executed giving strict charge to all such as have place or authority under them to use all diligence herein and his Majesty requireth them and all other his Officers and Ministers to have a vigilant eye upon such as dwell in dangerous places of advantage or opportunity for receiving or transporting any such as are here mentioned and his Majesty will take it for good service if any will give knowledge of such as have connived or combined or shall connive or combine as is mentioned in this Article that Justice may be strictly done upon them To the third His Majesty will take order to restrain the recourse of Recusants to the Court and also for the other points of this Article his Majesty is well pleased that the Laws be duly executed and that all unlawfull Licenses be annulled and discharged To the fourth His Majesty is most willing to punish for the time past and prevent for the future any the deceits and abuses mentioned in this Article and will account it a good service in any that will inform himself his Privy Councell Officers of his Revenue Judges or Councell learned of any thing that may reveal this Mystery of Iniquity and his Majesty doth strictly charge and command every of them to whom such information is made that they suffer not the same to die but do their utmost endeavour to effect a clear discovery and bring the Offenders to punishment and to the intent that no concealed toleration may be effected his Majesty leaveth the Lawes to their course To the fifth His Majesty is pleased to prohibite and restrain the coming and resort to the house of Ambassadours and will command a vigilant watch to be set for their taking and punishing as is desired To the sixth He is perswaded that this Article is already observed with good care neverthelesse for the avoyding as much as may be errours and escapes in that â—ind his Majesty will give order to the Lord Keeper that the next Terme he call unto him all the Judges and take information from them of the state of their severall Circuits if any such as are mentioned in this Article be in the Commission for Peace that reformation may be made thereof and will likewise give order to the Lord Admirall and to such persons to whom it shall appertain to make diligent enquiry and certifie to his Majesty if any such be in place of authority and command in his ships or service To the seventh His Majesty doth fully grant it To the eighth His Majesty doth well approve it as a matter of necessary consideration and the Parliament now sitting he recommendeth to both Houses the preparation of a fitting Law to that effect and his Majesty doth further declare that the mildnesse that hath been used towards them of the Popish Religion hath been upon hope that forraign Princes thereby might be induced to use moderation towards their Subjects of the Reformed Religion but not finding that good effect which was expected his Majesty resolveth unlesse he shall very speedily see better fruit to adde a further degree of severity to that which is in this Petition desired Sir Edward Coke's Speech March 25. upon a Question of Law in point of the Iudgement given in the Kings Bench Mich. 3. Caroli Viz. That a Prisoner detained by Committment per special mandat Regis without expressing a Cause is not bailable wherein he held negatively and spake as followeth IT is true that the Kings Prerogative is a part of the Law of this Kingdome and a supream part for the Prerogative is highly tendred and respected of the Law yet it hath bounds set unto it by the Laws of England But some worthy Members of this House have spoken of forraign States which I conceive to be a forraign Speech and not able to weaken the Side I shall maintain That Master Attorney may have something to answer unto I will speak without taking another day to the body of the Cause yet keeping something in store for another time I have not my Vade mecum here yet I will endeavour to recite my Ancestours truly I shall begin with old Authority for Errorem ad sua principia referre est refellere The ground of this Errour was the Statute of Westm. 1 cap. 15. which â—aith that those are not repleviable who are committed for the death of a man or by the commandment of the King or his Justices for the Forrest for so it
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 found 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 fafety 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 ratiâ— 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 itâ— 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 dâ—nizâ—ns 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 confiâ—med 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 communerequirit 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
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 hence forth 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 nostrade 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. Ã Prisona praediet
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 S r. 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 â—inal 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 grievances breeds hate and dislike And because we have not to give what is asked Yet to give freely what we intend to give and so by this freeness we shall win the Kings heart M r. KERTON HE desires to know the Rock to the end we may avoid it and not to go back but forward in our conclusion S r. ROBERT PHILIPS HIs good hopes are in his Majesties royal care and wisdom That the free and great Councel is the best but time and hope of change is coming towards us Rome and Spain trench deeply into our Councels That heretofore there hath been a fair progress on both parts according to the saying of the late King If the Parliament did or should give more then the Countrey could bear they gave him a purse with a knife in it Serjant HOSKINS THat knowing our own rights we shall be better enabled to give Two legs go best together our just grievances and our supply which he deâ—ires may not be seperated for by presenting them together they shall be both taken or both refused Serjant ASHLEYS Argument seconding M r. ATTORNEY in the behalf of his MAJESTIE I Hope it will be neither offensive nor tedious to your Lordships if I said somewhat to second M r. Attorney which I the rather desire because yesterday it was taken by the Gentlemen of and argued on the behalf of the Commons that the cause was as good as gained by them and yielded by us in that we acknowledged the Statute of Magna Charta and the other subsequent Statutes to be yet in force for on this they inforced this general conclusion That therefore no man could be committed or imprisoned but by due process presentment or indictment Which we say is a non sequitur upon such our acknowledgement for then it would follow by necessary consequence that no imprisonment could be justified but by process of Law which we utterly deny For in the cause of the Constable cited by M r. Attorney it is most clear that by the ancient Law of the Land a Constable might ex officio without any Warrant Arest and restrain a man to prevent an affray or to suppress it And so is the Authority 38. Hen. 8. Brooks abstract So may he after the affray apprehend and commit to Prison the Person that hath wounded a man that is in peril of death and that without Warrant or Process as it is in 38. E. 3. fol. 6. Also any man that is no Officer may apprehend a Fellon without Writ or Warrant or pursue him as a Wolf and as a common enemy to the Common-wealth as the Book is 14. H. 8. fol. 16. So might any one arrest a Night-walker because it is for the common profit as the reason is given 4. Hen. 7. fol. 7. In like manner the Judges in these several Courts may commit a man either for contempt or misdemeanour without either Process or Warrant other then take him Shrief or take him Marshall or Warden of the Fleet. And the Adversaries will not deny but if the King will alleadge cause he may commit a man per mandatum as the Judges do without Process or Warrant And various are the cases that may be instanced wherein there may be a Lawfull commitment without Process Wherefore I do possitively and with confidence affirm that if the imprisonment be Lawfull whether it be by Process or without Process it is not prohibited by the Law Which being granted then the question will aptly be made whether the King or Councel may commit to Prison per legâ—m terrâ— were onely that part of the Municipal Law of this Realm which we call the
and it is acknowledged by the ordinary answers of your Majesties predecessors in their assent to the Bills of subsedy of Tonnage and Poundage That it is of the nature of other subsedies proceeding from the good will of the Subject Very few of your predecessors had it for life until the raign of Hen. 7. who was so far from conceiving he had any right thereunto that although he granted commissions for collecting certain duties and customes due by Law yet he made no commissions for receiving the subsedy of Tonnage and Poundage untill the same was granted unto him in Parliament Since his time all the Kings and Queens of England have had the like grants for life by the free love and good will of the Subject And whensoever the people have been grieved by laying any imposition or other charges upon their goods or Merchandizes without Authority of Law which hath been very seldom yet upon complaint in Parliament they have been forthwith relieved saving in the time of your Royal Father who having through ill Councel raised the rates and charges of Merchandizes to that height at which they now are was yet pleased to yield so far to the complaint of his people as to offer that if the vallue of those impositions which he had set might be made good unto him he would himself and his Heirs by act of Parliament be bound never to lay any other which offer the Commons at that time in regard of the great burthen did not yield unto Nevertheless your Loyal Commons in this Parliament out of their especiall zeal to your service and special regard to your pressing occasions to take into their considerations so to frame a grant of subsedy of Tonnage and Poundage to your Majestie that both you might have been the better enabled for the defence of your Realm and your Subjects from being secure from all undue charges might be the more incouraged chearfully to proceed in their course of Trade by the encrease whereof your Majesties profit and likewise the strength of the Kingdom would be very much augmented But not being now able to accomplish this their desire there is no course left unto them without manifest breach of their duty both to your Majesty and the Countrey save onely to make this humble declaration that the receiving of Tonnage and Poundage and other impositions not granted by Parliament is a breach of the fundamentall Liberties of this Kingdom and contrary to your Majesties Royal Answer to the said Petition of Right And therefore they do most humbly beseech your Majestie to forbear any further to receive the same and not to take it in ill part from those of your Majesties loving Subjects who shall refuse to make payment of any such charges without warrant of Law demanded And as by this forbearance your most Excellent Majestie shall maniâ—est unto the world your Royal Justice in the observance of your Laws So they not doubting but that hereafter at the time appointed for their coming together again they shall have occasion to express their great deâ—ire to advance your Majesties Honour and profit A Letter which was found among some Jesuits that were lately taken at London and addressed to the Father RECTOR at BRUXILLS FAther Rector let not the damp of astonishment seiz upon your most ardent and zealous soul in apprehending the sudden and unexpected calling of the Parliament we have not opposed but rather furthered it so that we hope as much in this Parliament as ever we feared in Queen Elizabeths dayes You must know the Councel is ingaged to assist the King by the way of Prerogative in case the Parliamentary way should fall You shall see this Parliament will resemble the Pellicane which takes a pleasure to dig out with her beake her own bowels The election of the Knights and Burgesses have been in such confusion and by such apparant faction as that which we were wont to prove heretofore with much art and industry when the Spanish match was in treaty now it breaks out naturally as a botch or boyl and spets and spews out his own ranckor and venom You may remmber how that most Famous and Immortall Statesman the Count of Gondomar fed King Iames his fancy and rocked him asleep with the soft and sweet sound of Peace to keep up the Spanish Treaty Likewise we were much bound to some eminent Statesmen of our own Countrey to gain time in procureing those advantagious Sessions of Arms in the Pallatinate and in admiring the worth and Honour of the Spanish Nation and vilifying the Hollanders remonstrating to King Iames that State was most ungratefull both to his predecessor Queen Elizabeth and his Sacred Majestie that that State was more obnoxious then the Turk and perpetually injured his Majesties Subjects in the East Indies and likewise they had usurped from him the regallitie of the narrow seas in fishing upon the English coasts Had the Spanish match taken effect which was broken by the heat and violence of your furious Enemy the Duke of Buckingham certainly if King Iames had diserted the Hollanders Those great Statesmen had but one means to further their great and good designes which was to seiz on King Iames that none but the Puritans faction that plotted nothing but Annarchy and his confusion were advanced to this most happie Union We steered on the came course and have made use of Annarchall election and have prejudicated and anticipated the great one the Duke of Buckhingham that none but the Kings Enemies and his are chosen of the Parliament and that the Parliament vows to begin where they have left and will never give over till they have exterpated him and his posteritie On the other side the same parties who are to be admired for their indefitigable industrie incessantly foment revenge and jelousie in most of the Parliament men and especially they work upon the pride and vain glory of such as have been imprisoned acknowledging that they are the onely Martires and Worthies of the Country London is as much distempered as ever Florence was for the companies are at great odds and the common Councel have opposed the Magistrates against the old custom in the election of the Knights which hath bred a great heart burning in the City that twice a day we can divulge what we list in Pauls and upon the Exchange we have already rendered our irreconciliable Enemy the Duke as odious as a Toad so the people are apt to believe any thing against him We hope to be revenged on that Ball of Wilde-fire the Duke shortly and quench his fury you shall see the same sword that hath wounded us drawn upon the wound with an oyl that we have annointed it shall make us whole and this shall be done the Parliament is a great ship that hath dashed twice against the same rock and we have so wrought upon the several complexions of Parliament-men in charging the most temporate and wiser sort that the best way to
I may be clearly understood I must needs say they do mistake me wondrously that think I lay this fault equally on all the Lowerâ—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 Vipers 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 â—which indeed was the general fault on the last day of the Houseâ— 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 â—ears 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 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 â—ase 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