Loyalty may have such place in your Royall thoughts as to rest assured that all your Subjects will be ready to lay down their lives for the defence of your Sacred Person and this Kingdome Not going our selves into our Countreys this Easter we should think it a great happinesse to us and we know it would be a singular comfort and encouragement to them that sent us hither if we might but send them the newes of a gracious Answer from your Majesty in this particular which the reasons of the Petition we hope will move your most excellent Majesty graciously to vouchsafe us The King's Answer to the Petition concerning billetting of Souldiers 14 April 1628. M r Speaker and you Gentlemen WHen I sent you my last message I did not expect any Reply for I intended to hasten you not to find fault with you I told you at your first meeting that this time was not to be spent in words and I am sure it is lesse fit for disputes which if I had a desire to entertain M r Speaker's Preamble might give me ground enough The Question is not now what Libertie you have in disposing of matters handled in your House but rather what is fit to be done Therefore I hope you will follow my example in eschewing disputations and fall to your important businesse You make a protestation of your affections and zeal to my Prerogative grounded upon so good and just reasons that I must believe you But I look that you use me with the like charitie to believe what I have delivered more then once since your meeting which is That I am as forward as you for the preservation of your true Liberties yet let us not spend so much time in this that may hazzard both my Prerogative and your Liberties to our Enemies To be short go on speedily with your businesse without fear or more Apologies for time calls fast on you which will neither stay for me nor you Wherefore it is my dutie to presse you to hasten as knowing the necessity of it and yours to give credit to what I say as to him that sitteth at the Helme Sir Dudley Diggs his Introduction My Lords I Shall I hope auspiciously begin this Conference this day with an Observation out of Holy Story In the dayes of good King Iosiah when the Land was purged of Idolatry and the great men went about to repaire the House of God while money was sought for there was found a Book of the Law which had been neglected and afterwards being presented to the good King procured the blessing which your Lordships may read of in the Scriptures 2 Chro. cap. 34. 2 Kings cap. 22. My good Lords I am confident your Lordships will as cheerfully joyn with the Commons in acknowledgement of Gods great blessing in our good King Iosiah as the Knights Citizens and Burgesses of the Commons House by me their unworthy servant do thankfully remember your most religious and truly honourable invitation of them to the late Petition for clensing this Land from Popish Abominations which I may truly call a necessary and happy repairing of the House of God And to go on with the parallell while we the Commons out of our good affection were seeking for money we found I cannot say a book of the Law but many and those fundamentall points thereof neglected and broken which hath occasioned our desire of this Conference Wherein I am first commanded to shew unto your Lordships in generall that the Lawes of England are grounded on reason ancienter then bookes consisting much in unwritten Customes yet so full of Justice and true Equity that your most honourable Predecessours and Ancestours many times propugned them with a Nolumus Mutare and so ancient that from the Saxons daies notwithstanding the Injuries and Ruines of Time they have continued in most parts the same as may appear in old remaining Monuments of the Lawes of Ethelbert the first Christian King of Kent Ina King of the West-Saxones Offa of the Mercians In Bibliotheca Cottoniana and of Alfred the great Monarch who united the Saxon Heptarchie whose Laws are yet to be seen published as some think by Parliament as he sayes to that end ut qui sub uno Rege sub una Lege regerentur Liber Lichfield And though the book of Lichfield speaking of the troublesome times of the Danes saies that then Ius sopitum erat in Regno Leges consuetudines sopitae sunt and prava voluntas vis violentia magis regnabant quam Iudicia vel Iustitia yet by the blessing of God a good King Edward commonly called S. Edward did awaken these Lawes Excitatas reparavit reparatas decoravit decoratas confirmavit Liber de Chartsey sive Registrum de Chartsey which confirmavit sheweth that good King Edward did not give those Lawes which William the Conquerour and all his Successours sithence that have sworn unto And here my Lords by many Cases frequent in our Modern Lawes strongly concurring with those of the ancient Saxon Kings I might if time were not precious demonstrate that our Lawes and Customes were the same I will only intreat your Lordships leave to tell you that as we have now even in those Saxon times they had their Courts Barons and Courts Leets and Sheriffs Courts by which as Tacitus saith of the Germans their Ancestours Iura reddebant per pagos vicos And I believe as we have now they had their Parliaments where new Lawes were made cum consensu Praelatorum Magnatum totius Communitatis or as another writes cum consilio Praelatorum Nobilium sapientum Laicorum I will adde nothing out of Glanvile that wrote in the time of Henry the second or Bracton that writ in the time of Henry the third only give me leave to cite that of Fortescue the learned Chancellour to Hen. 6. who writing of this Kingdome saith Regnum illud in omnibus Nationum Regum temporibus De Dom. polit et regal eisdem quibus nunc regitur legibus consuetudinibus regebatur But my good Lords as the Poet said of Fame I may say of our Common Law Ingreditur solo caput inter nubila condit Wherefore the cloudy part being mine Virgil. I will make haste to open way for your Lordships to heare more certain Arguments and such as go on surer grounds Be pleased then to know that it is an undoubted and fundamentall point of this so ancient Common Law of England that the Subject hath a true Proprietie in his goods and possessions which doth preserve as sacred that meum and tuum that is the Nurse of Industrie the Mother of Courage and without which there can be no Justice of which meum and tuum is the proper object But this undoubted Birthright of free Subjects hath latelie not a little been invaded prejudiced by pressures the more grievous because they have been pursued by Imprisonments contrary to the Franchise of
called because the Authour lay in the Fleet when he made the book for he lib. 2. cap. 52. in his cap. of Turnes and the views of the Hundred Courts in the Countrie sets down the Articles of the Charges that are there to be enquired of amongst which one of them is de replegiabilibus injuste detentis or irreplegiabilibus dimissis which cannot be meant of not bailing by the Justices for what have the inferiour Courts in the Countrey to do with the Acts of the Justices And to make it more plain he setteth down in this Chapter that concernes Sheriffs only the very Statute of Westm. cap. 15. which he translates verbatim out of the French into the Latin save that he renders taken by the command of the Justices thus per Iudicium Iustitiariorum and his Preface to the Statute plainly sheweth that he understood it of replevine by Sheriffs for he saith Qui debent per plegios dimitti qui non declarat hoc Statutum and per plegios is before the Sheriff But for direct authoritie it is the opinion of Newton the Chief Justice in 22. H. 6.46 where his words are these It cannot be intended that the Sheriff did suffer him to go at large by mainprize for where one is taken by the writ of the King or the command of the King he is irreplevisable but in such case his friends may come to the Justices for him if he be arrested and purchase a supersedeas So he declares the very Question That the Sheriffs had no power but that the Justices had power to deliver him that is committed by the Kings Command And both the ancient and modern practise manifests as much for he that is taken for the death of a man or for the Forrest is not replevisable by the Sheriff yet they are ordinarily bailed by the Justices and were by the Kings writs directed to the Sheriffs in the times of E. 1. and E. 2. as appeares in the Close Rolls which could not be done if they were not bailable And it is every dayes experience that the Justices of the Kings Bench do baile for murther and for offences done in the Forrest which they could not do if the word irreplevisable in Westm. 1. were meant of the Justices as well as of the Sheriffs For the authorities which have been offered to prove the contrarie they are in number 3. The first is 21. E. 1. Rot. 2. which also is in the book of the Pleas in Parliament at the Tower fol. 44. It is not an Act of Parliament but a resolution in Parliament upon an action there brought which was usuall in those times and the Case is That Stephen Rubar the Sheriff of the Counties of Leicester and Warwick was questioned for that he had let at large by sureties one William the son of Walter le Parsons against the will and command of the King when as the King had committed him by Letters under his Privie Seal that he should do no favour to any man that was committed by the command of the Earle of Warwick as that man was Whereunto the Sheriff answered that he did it at the request of some of the Kings houshold upon their Letters and because the Sheriff did acknowledge the receipt of the Kings Letters thereupon he was committed to prison according to the forme of the Statute To this I answer that he was justly punished for that he is expresly bound by the Statute Westm. 1. which was agreed from the beginning But this is no proof that the Judges had not power to baile this man The next Argument is 33. H. 6. in the Court of Common Pleas fol. 28.29 where Robert Poinings Esq was brought unto the Barre upon a Capias and it was returned that he was committed per duos de Consilio I believe it is misprinted for Dnos de Consilio i. e. Dominos de Consilio which is stongest against that which I maintain pro diversis causis Regem tangentibus and he made an Attorney there in an accusation whence is inferred that the return was good and the partie could not be delivered To this the Answer is plain 1. No opinion is delivered in that book whether he were delivered or bailed or not 2. It appeares expresly that he was brought thither to be charged in an accusation of debt at another mans Suit and no desire of his own to be delivered or bailed and then if he were remanded it is no way materiall to the question in hand But that which is most relied upon is the opinion of Stamford in his book of the Pleas of the Crown lib. 2. ca. 18. fol. 72.73 in his cap. of Mainprize where he reciteth the Statute of Westm. 1. cap. 15. and then saith thus By this Statute it appeareth that in 4 cases at the Common Law a man was not replevisable to wit those that were taken for the death of a man by command of the King or of his Justices or for the Forrest Thus farre he is most right Then he goeth on and saith As to the Command of the King that is understood of the command of his own mouth or his Councell which is incorporated unto him and speake with his mouth or otherwise every writ of Capias to take a man which is the Kings command would be as much And as to the command of the Justices that is meant their absolute command for if it be their ordinarie commandment he is replevisable by the Sheriff if it be not in some of the Cases prohibited by the Statute The answer that I give unto this is That Stamford hath said nothing whether a man may be committed without cause by the Kings command or whether the Judges ought not to baile him in such case but only that such a one is not replevisable which is agreed for that belongs to the Sheriff And because no man should think he meant any such thing he concludes his whole sentence touching the command of the King and his Justices That one committed by the Justices ordinarie command is replevisable by the Sheriff So either he meant all by the Sheriff or at least it appeares not that he meant that a man committed by the King or the Privie Councell without cause is not bailable by the Justices and then he hath given no opinion in this case What he would have said if he had been asked the question cannot be known neither doth it appeare by any thing he hath said that he meant any such thing as would be inferred out of him And now my Lords I have performed the command of the Commons and as I conceive shall leave their declaration of personall Liberty on ancient and undoubted truth fortified with 7 Acts of Parliament and not opposed by any Statute or authoritie of Law whatsoever The Objections of the King's Councell with the Answers made thereunto at the two Conferences touching the same matter IT was agreed by Master Attorney generall that the seven Statutes urged by
be imprisoned before he be convicted according to the Law but if this return shall be good then his imprisonment shall not continue on for a time but for ever and the Subjects of this Kingdome may be restrained of their liberties perpetually and by Law their can be no remedy for the Subject and therefore this return cannot stand with the Laws of the Realm or that of Magna Charta Nor with the statute of 28 Ed. 3. ca. 3. for if a man be not bailable upon this return they cannot have the benefit of these two Laws which are the inheritance of the Subject If your Lordship shall think this to be a sufficient cause then it goeth to a perpetuall imprisonment of the subject for in all those causes which may concern the Kings Subjects and are appliable to all times and cases we are not to reflect upon the present time and government where justice and mercy floweth but we are to look what may betide us in the time to come hereafter It must be agreed on all sides that the time of the first commitment doth not appear in this return but by a latter warrant from the Lords of the Councell there is a time indeed expressed for the continuing of him in prison and that appeares but if this shall be a good cause to remand these Gentlemen to prison they may lie there this seven yeares longer and seven yeares after them nay all the dayes of their lives And if they sue out a writ of Habeas corpus it is but making a new warrant and they shall be remanded and shall never have the advantage of the Laws which are the best inheritance of every Subject And in Ed. 6. fol. 36. the Laws are called the great inheritance of every Subject and the inheritance of inheritances without which inheriritance we have no inheritance These are the exceptions I desire to offer to your Lordship touching the return for the insufficiency of the cause returned and the defect of the time of the first commitment which should have been expressed I will not labour in objections till they be made against me in regard the sttatute of Westminster primo is so frequent in every mans mouth that at the Common Law those men that were committed in four cases were not replevisable viz. those that were taken for the death of a man or the commandment of the King or his Justices for the forest I shall speak something to it though I intend not to spend much time about it for it toucheth not this Case we have in question For that is concerning a Case of the Common Law when men are taken by the Kings writs and not by word of mouth and it shall be so expounded as Master Stamford fol. 73. yet it is nothing to this Case for if you will take the true meaning of that statute it extends not at all to this writ of Habeas corpus for the words are plain they shall be replevisable by the Common writ that is by the writ de homine replegiando directed to the Sheriffe to deliver them if they were baileable but the Case is above the Sheriffe and he is not to be Judge in it whether the cause of the commitment be sufficient or not as it appears in Fitz Herbert de homine replegiando and many other places and not of the very words of the statute this is clear for thereby many other causes mentioned as the death of a man the commandment of the Justices c. In which the statute saith men are not replevisable but will a man conceive that the meaning is that they shall not be bailed at all but live in perpetuall imprisonment I think I shall not need to spend time in that it is so plain let me but make one instance A man is taken de morte hominis he is not baileable by writ saith this statute that is by the common writ there was a common writ for this Case and that was called de odio acia as appeareth Bracton Coron 34. this is the writ intended by the statute which is a common writ and not a speciall writ But my Lord as this writ de odio acia was before this statute so it was afterwards taken away by the statute of 28 Ed. 3. cap. 9. But before that sttatute this writ did lie in the speciall Case as is shewn in Brooks 9 th Reports Powlters Case and the end of this writ was that the Subject might not be too long detained in prison as till the Justices of Eyre discharged them so that the Law intended not that a man should suffer perpetuall imprisonment for they were very carefull that men should not be kept too long in prison which is also a Liberty of the Subject and my Lord that this Court hath bailed upon a suspicion of high treason I will offer it to your Lordship when I shall shew you presidents in these cases of a commitment by the Privy Councell or by the King himself But before I offer these presidents unto your Lordship of which there be many I shall by your Lordships favour speak a little to the next exception and that is the matter of the return which I find to be per speciale mandatum domini Regis 8. and what is that it is by this writ there may be sundry commands by the King we find a speciall command often in our Books as in the statute of Marlborough cap. 8. they were imprisoned Rediss shall not be delivered without the speciall command of our Lord the King and so in Bracton De Actionibus the last chapter where it appears that the Kings commandment for imprisonments is by speciall writ so by writ again men are to be delivered for in the case of Rediss or Post Rediss if it shall be removed by a Certiorare is by a speciall writ to deliver parties so that by this appears that by the Kings commandment to imprison and to deliver in those cases is understood this writ and so it may be in this case which we have heard And this return here is a speciall Mandatum it may be understood to be under some of the Kings Seals 42 Ass. and ought to be delivered and will you make a difference between the Kings command under his seal and his command by word of mouth what difference there is I leave it to your Lordships judgement but if there be any it is the more materiall that it should be expressed what manner of command it was which doth not here appear and therefore it may be the Kings command by writ or his command under his Seal or his command by word of mouth alone And if of an higher nature there is none of these commands then the other doubtlesse it is that by writ or under seal for they are of record and in these the person may be bailed and why not in this As to the legall forme admitting there were substances in the return yet
till his pleasure be first known Thus did the Lord Chief Justice Coke in Raynards Case They say this would have been done if the King had not written but why then was the Letter read and published and kept and why was the Town Clark sent carefully to enquire because the Letter so directed whether these men offered for bayl were subsedy men the Letter sheweth also that Beckwith was committed for suspition of being acquainted with the Gun-Pouder-Treason but no proof being produced the King left him to be bayled The Earle of WARVVICKS speech 21. April 1628. MY Lords I will observe something out of the Law wherein this liberty of the Subjects Person is founded and some things out of Presidents which have been alleadged For the Law of Magna Charta and the rest concerning these points they are acknowledged by all to be of force and that they were to secure the Subjects from wrongfnll imprisonment as well or rather more concerning the King then the Subject why then besides the grand Charter and those 6. other Acts of Parliament in the very point we know that Magna Charta hath been at least 30. times confirmed so that upon the matter we have 6. or 7. and thereby Acts of Parliament to confirm this liberty although it was made a matter of derision the other day in this House One is that of 36. E. 3. No. 9. and another in the same year No. 20. not printed but yet as good as those that are and that of 42. E. 3. cap. 3. so express in the point especially the Petition of the Commons that year which was read by M r. Littleton with the Kings answer so full and free from all exception to which I refer your Lordships that I know not have any thing in the World can be more plain and therefore if in Parliament ye should make any doubt of that which is so fully confirmed in Parliament and in case so clear go about by new glosses to alter the old and good Law we shall not onely forsake the steps of our Ancestors who in Cases of small importance would answer nolumus mutare leges Angliae but we shall yield up and betray our right in the greatest inheritance the Subjects of England hath and that is the Laws of England and truely I wonder how any man can admit of such a gloss upon the plain Text as should overthrow the force of the Law for whereas the Law of Magna Charta is that no Free-man shall be imprisoned but by lawfull judgement of his Peers or the Law of the Land the King hath power to commit without Cause which is a sence not onely expresly contrary to other Acts of Parliament and those especially formerly cited but against Common sence For Mr. Attorney confesseth this Law concerns the King why then where the Law saith the King shall not commit but by the Law of the Land the meaning must be as M r. Attorney would have it that the King must not commit but at his own pleasure and shall we think that our Ancestors were so foolish to hazard their Persons Estates and labour so much to get a Law and to have it 30. times confirmed that the King might not commit his Subjects but at his own pleasure and if he did commit any of his Subjects without a Cause shewen then he must lie during pleasure then which nothing can be imagined more ridiculous and contrary to true reason For the Presidents I observe that there hath been many shewen by which it appears to me evidently that such as have been committed by the Kings Councel they have been delivered upon Habeas Corpus and that constantly It is true that some Presidents were brought on the Kings part that when some of these persons desired to be delivered by Habeas Corpus the King or his Councel signified his Majesties pleasure that they should be delivered or the Kings Attorney hath come into the Court and related the Kings Command but this seems to make for the Subject For that being in his Majesties power to deliver them who by his special Command were imprisoned May not we well think that his Majesty would rather at that time have stayed their deliverance by Law then furthered it with his Letters and made the Prisoners rather beholding to him for his grace and mercy then to the Judges for Justice had not his Majesty known that at that time they ought to have been delivered by Law I think no man would imagine a wise King would have suffered his Grace and Prerogative if any such Prerogative were to be so continually questioned and his Majesty and his Councel so far from commanding the Judges not to proceed to deliver the Prisoner by them committed without Cause shewn as that on the other side which is all the force of these Presidents the King and the Councel signified to the Judges that they should proceed to deliver the parties certainly if the King had challenged any such Prerogative that a Person committed without any cause shewn ought not to be delivered by the Judges without his consent it would have appeared by one President or other amonst all that have been produced that his Majesty would have made some claim to such a Prerogative But it appears to the contrary that in many of these cases the King or his Councel did never interpose and where they did it was alwayes in affirmation and incouragement to that Court to proceed And besides the writing of Letters from his Majesty to the Judges to do Justice to his Majesties Subjects may with as good reason be interpreted that without those Letters they might not do Justice also the King signified his willingness that such such Persons which were committed by him should be delivered therefore they could not be delivered without it which is a strange reason So that findeing the Laws so full so many and so plain in the point and findeing that when ever any were committed without cause shewn brought their Habeas Corpus they were delivered and no Command ever given to the contrary or claim made on the Kings part to any such Prerogative I may safely conclude as the House of Commons have done and if any one President or two of late can be shewn that the Judges have not delivered the Prisoners so committed I think it is their fault and to be enquired of but contrary it seems to me to be an undoubted Liberty of the Subject that if he be committed without cause or without cause shewn yet he may have some speedy course to bring himself to Trial either to justifie his own innocencie or to receive punishment according to his fault for God forbid that an innocent man by the Laws of England should be put in worse case then the most grievous Malefactors are which must needs be if this should be that if a cause be shewed he may have his Trial but if none he must lie and pine in Prison during pleasure
the Secretarie Super totam maternam It is evident that the Colledge at Clarkenwell is a Colledge of Iesuits holden under a Forreign Supream power Sir Francis Seymour taxeth Mr. Attorneys affection and judgement in this and also declareth continual Letters from Mr. Attorney in stay of proceedings against Recusants You see in this how slightly Mr. Attorney hath put over a business of this weight to Mr. Long. Cross the Pursevant saith there was an Eleventh man in the New Prison and the Keeper of that Prison said he was delivered by Warrant from the Councel-board Sir Iohn Elliot No man could find a way on which to vent his malice so much to this Church and State as by protecting these men That this may be fixed home on that great Lord of Dorset that I fear hath defiled his fingers too far in this business and on Mr. Attorney whom I am sorrie I have occasion to nominate so often in this matter of Religion in stopping of proceedings against Recusants Mr. Recorder is ordered to be sent for and to be examined in this rather than to be sent for having had the Honor formerly to sit in the Chair Secretarie Cook saith we shall find that the King being mercifull in case of shedding bloud gave direction for the repriving of those Priests Sir Iohn Elliot I doubt not when we shall declare the depth of this to his Majestie but he will render them to judgement that gave him advice herein Sir Nath. Ritch These Iesuits are bound by Sureties to answer further at the Councel-board I wish these Bonds would produce these Men that by examination of them we may find out the whole pack of their Benefactors and Countenancers Mr. Long saith that he offering at Session the Evidence by order from M. Attorney the Lord Chief Justice Richardson interrupted him and told him he must speak to the point in issue whether Priests or no Priests and hereupon the Judges consulted amongst themselves Mr. Selden saith he was present at the Sessions and plain Treason was proved and nothing done in it The further examination of this is referred to a select Committee Munday 16. A Petition of Complaint against Sir Henry Martin for disposing of the goods of one Brown who died intestate to his own private use Sir Henry Martin If I prove not my self as clear of this as St. Iohn Baptist let me be reckoned to be a Jew Referred to the Committee for course of Justice At the Committee for Religion MAster Stroud That the Lord Chief Justice may be called to give an account of his stay of Justice in the execution of the condemned Priests which he ought not to have done though his Majestie signified his pleasure to the contrarie Chancellor of the Dutchie That was a thing ordinarie for a Chief Justice to do in Queen Elisabeths and King Iames times as also a Declaration in the Star-chamber that all condemned Priests should be sent to the Castle of Wisbitch and from hence though the King had given no order for the replevie he might have taken his Warrant for his proceedings Mr. Selden reporteth from the Committee for the further examination of Mr. Long concerning the proceeding at Newgate against the Iesuits whereby plainly appeareth that the evidence tendered in the Court at Newgate did plainly testifie these men to be Priests yet the Lord Chief Justice Richardson did reject the same against the sence of the rest of the Judges and Justices present whereby it is plain he dealt under-hand to some of the Iesuites Ordered That two Members shall be sent to each Judge that were present at the Sessions at Newgate who were said to be the Lord Chief Justice of the Kings Bench the Chief Justice of the Common-pleas Justice Whitlock Justice Iones and Justice Crook Tuseday 17. MAster Chambers preferreth another Petition in complaint of a Warrant newly proceeding from the Councel-board for the stay of the Merchants goods unless they payed the duties that were due in King Iames his time Sir Iohn Elliot You see as by the last answer from the Exchequer the Merchants were bounded within the Court to sue for their own so they are now debarred from all means of coming by their own It is Ordered that the Customers shall attend the House on Thurseday next In the mean time it is referred to the former Committee Ordered a Committee of six to Collect and take all the names at the Fast and to meet at eight of the Clock in the Morning Ordered That a Committee shall consider of a speedie way to put the Merchants in Possession of their goods without which it is warned we sit here in vain Sir Thomas Hobbie Reported from my Lord Chief Justice Hide that he doth not remember any Papers tendred by Mr. Long were rejected or that he affirmed they were dangerous persons and a Colledge of Iesuits but howsoever Mr. Long tendred nothing to prove them so but that he had diverse papers in his hand Mr. Wansford Reported from the Lord Chief Justice Richardson who saith that Mr. Long did discourse of the place and house but did not press the reading of any papers neither doth he know what was in the papers neither knew he any thing to prove the persons Priests Sir Thomas Barrington delivereth the answer of Justice Iones who saith the same papers were offered by Mr. Long but he knoweth not the Contents thereof nor the reason why they were refused but he came late for want of his health and the second day was not there at all The like was Reported by Sir Will. Constable from Justice Crook Sir Thomas Barrington saith Although that Justice Iones did not write the name of my Lord Chief Justice Richardson yet in discourse named him to be the man that said The point in proof is not whether they be Priests or no Priests Sir Nath. Ritch Here is a charge of a high nature on the Judges by Mr. Long. That Mr. Long now may make good his Charge or suffer for it for there were witnesses enough in the Court. Ordered Mr. Long to be here on Thurseday Morning Ordered That the Justices about this time shall be required to deliver in the names of all Recusants remaining about the Town and their conditions and what Countrey they be It is Moved That the Gentlemen of the Inns of Court and of the Chancerie may give in their knowledge what Recusants are there Sir Iohn Stanhope That the Court may give in the names of Recusants there likewise by what Warrant these be about the Town and what publick charge of Office any of these persons have also what Priests and Iesuites are in any prison in London for they have libertie sometimes to go five miles to say Mass. Wednesday 18. A Publick Fast was kept by this House in Westminster where were three Sermons Thursday 19. MAster Dawes one of the Customers called in to answer the point of Priviledge in taking Mr. Rolles his goods being a Member of this
or otherwise restrained though it be by the command of the King Privy Councel or any other he praying the same 3. If a Free-man be committed or detained in prison or otherwise restrained by the command of the King Privy Councel or any other unlesse the cause of the commitment detainment or restraint be expressed for which by Law he ought to be committed detained or restrained and the same be returned upon habeas corpus granted for the said party that then he ought to be delivered or bailed Sir John Coke his Speech at a Conference between the Lords and Commons about the Petition to the King against Recusants My Lords WE are sent to attend this Conference from the Knights Citizens and Burgesses of the House of Commons And first we acknowledge all due honour both unto the reverend Fathers of the Church and to you noble Lords in that ye have shined before us as worthy lights in the encouragement and maintainance of true Religion It is the true support of all your dignities and honours And this forwardnesse of yours is the more remarkable when that viperous generation as your Lordships justly stile them doe at ease with tooth and nail assay to rend the bowels of their Mother For give me leave to tell you what I know that they now both vaunt at home and write to their friends abroad they hope all will be well and doubt not to prevail and to win ground upon us And a little to awake the zeal and care of our learned and grave Fathers it is fit that they take notice of that Hierarchie which is already established in competition with their Lordships for they have a Bishop consecrated by the Pope this Bishop hath his subalternate Officers of all kinds as Vicars-generall Arch-deacons rurall Deans Apparatours and such like Neither are those nominall or titular Officers alone but they all execute their Jurisdictions and make their ordinary Visitations through the Kingdome keep Courts and determine Ecclesiasticall causes and which is an argument of more consequence they keep ordinary intelligence by their Agents in Rome and hold correspondence with the Nuntioes and Cardinalls both at Bruxells and in France Neither are the Seculars alone grown to this height but the Regulars are more active and dangerous and have taken deep root they have already planted their Societies and Colledges of both Sexes they have setled Revenues Houses Libraries Vestments and all other necessary provisions to travell or stay at home nay even at this time they intend to hold a concurrent Assembly with this Parliament But now since his sacred Majesty hath extended his royall arm and since the Lords of his Councell have by their authority caused this nest of Wasps to be digged out of the earth and their Convocations to be scattered and since your Lordships joyn in courage and resolution at least to reduce this People to their lawfull restraint that they may doe no more hurt we conceive great hope and comfort that the almighty God will from henceforth prosper our endeavours both at home and abroad But now my Lords to come to the chief errand of this our meeting which is to make known to you the approbation of our House of that Petition to his Majesty wherein you were pleased to request our concurrence The House hath taken it into serious consideration and from the beginning to the end approve of every word and much commend your happy pen onely we are required to present unto you a few additions whereby we conceive the Petition may be made more agreable to the Statutes which are desired to be put in execution and to a former Petition granted by his Majesty recorded in both Houses confirmed under the Broad Seal of England and published in all the Courts of our ordinary Justice But these things we propound not as our Resolutions or as matters to raise debate or dispute but commend them only as our Advise and desire being ready notwithstanding to joyn with your Lordships in the Petition as now it is if your Lordships shall not find this reason to be of weight These additions were but few and were approved of by the Lords and inserted in the Petition the 29. March 1628. The Petition of both Houses to his Majesty concerning Recusants March 31. 1628. VVE your Majesties most loyall and obedient Subjects the Lords Spirituall and Temporall and Commons in Parliament assembled having to our singular comfort obtained your Majesties pious and gracious assent for a publick Fast to appease the wrath of almighty God kindled against us and to prevent those grievous Judgements which doe apparently presse upon us doe in all humility present unto your Sacred Majesty all possible thanks for the same And because the publick and visible Sins of the Kingdome are the undoubted Causes of those visible Evils that are fallen upon us amongst which sins as is apparent by the Word of God Idolatry and Superstition are the most hainous and crying sins to the end that we may constantly hope for the blessing of God to descend upon this our publick Humiliation by abandoning those sins which doe make a wall of separation betwixt God and us 1. We most humbly and ardently beg at the hands of your Sacred Majesty that your Majesty will be pleased to give continuall life and motion to all those Laws that stand in force against Iesuites Seminary Priests and all that have taken Orders by authority of the Sea of Rome by exacting a more due and serious execution of the same amongst which number those that have highly abused your Majesties Clemency by returning into the Kingdome after their Banishment contrary to your Highnesse expresse Proclamation we humbly desire may be left to the severity of your Laws without admitting any mediation or intercession for them and that such of your Majesties unsound and ill-affected Subjects as doe receive harbour or conceal any of that viperous generation may without delaies suffer such penalties and punishments as the Laws most justly impose upon them 2. That your Majesty would be pleased to command a secure and streight watch to be kept in and over your Majesties Ports and Havens and to commit the care and charge of searching of ships for this discovery and apprehension as well of Iesuits and Seminary Priests brought in as of children and young Students sent over beyond the Seas to suck in the poison of Rebellion and Superstition unto men of approved Fidelity and Religion and such as shall be convicted to have connived or combined in the bringing in of the one or conveying out of the other that the Lawes may passe upon them with speedy execution 3. That considering those dreadfull dangers never to be forgotten which did involve your Majesties Sacred Person and the whole representative Body of your Majesties Kingdome plotted and framed by the free and common accesse of Popish Recusants to the city of London and to your Majesties Court your Majesty would be graciously pleased to
in generall and to the grievous and insupportable vexation and detriment of many Countreys and persons in particular a new and heretofore almost unheard of way hath been invented and put in practise to lay Souldiers upon them scattered in Companies here and there even in the heart and bowels of this Kingdome and to compell many of your Majesties Subjects to receive and lodge them in their own houses and both themselves and others to contribute towards the maintenance of them to the exceeding great disservice of your Majesty to the generall terrour of all and utter undoing of many of your poor people Insomuch that we cannot sufficiently nor in any sort proportionable to the lively sense that we have of our miserie herein are we able to represent unto your Majesty the innumerable mischiefs and continuall vexations that by this meanes alone we do now suffer whereof we will not presume to trouble your sacred eares with particular instances Only most gracious Sovereign we beg leave to offer unto your gracious view and compassionate Consideration a few of them in generall First The service of almighty God is hereby greatly hindred the people in many places not daring to repair to the Churches least the Souldiers in the mean time should rifle their houses 2. The ancient and good government of the Countrey is hereby neglected and contemned 3. Your Officers of Justice in performance of their duties have been resisted and indangered 4. The rents and revenues of your Gentrie greatly and generally diminished Farmers to secure themselves from the Souldiers insolencie being by the clamours and solicitation of their fearfull and injured wives and children inforced to give up their wonted dwellings and to retire themselves into places of more secure habitation 5. Husbandmen that are as it were the hands of the Countrey corrupted by ill example of the Souldiers and incouraged to idle life give over work and rather seek to live idly at another mans charge then by their own labours 6. Tradesmen and Artificers almost discouraged being inforced to leave their trades and to imploy their time in preserving themselves and their families from violence and cruelty 7. Markets unfrequented and our wayes grown so dangerous that your people dare not passe to and fro upon their usuall occasions 8. Frequent robberies assaults batteries burglaries rapes rapines murthers barbarous cruelties and other most abominable vices and outrages are generally complained of from all parts where these Companies have been and had their abode few of which insolencies have been so much as questioned and fewer according to their demerits punished These and many other lamentable effects most dread and dear Sovereign have by this billetting of Souldiers fallen upon your loyall Subjects tending no lesse to the disservice of your Majesty then to their own impoverishing and destruction so that they are thereby exceedingly disabled to yield your Majesty those supplies for your urgent occasions which they heartily desire And yet they are further perplexed with apprehension of more approching dangers one in regard of your Subjects at home and the other from Enemies abroad In both which respects it seems to threaten no small Calamitie For the first the meaner sort of your people being exceeding poor whereof in many places be great multitudes and therefore in times of most settled and constant administration of Justice not easily ruled are most apt upon this occasion to cast off the reines of government and by joyning themselves with these disordred Souldiers are very likely to fall into mutinie and rebellion which in faithfull discharge of our duties we cannot forbear most humblie to present to your high and excellent Wisdome being prest with probable feares that some such mischief will shortly ensue if an effectuall and speedie course be not taken to remove out of the land or else otherwise to disband those unruly Companies For the second we do most humbly beseech your Majesty to take into your Princely consideration that many of these Companies besides their dissolute dispositions and carriages are such as do openly professe themselves to be Papists and therefore to be suspected that if occasion serve they will rather adhere to a forreign Enemy of that Religion then to your Majestie their liege Lord and Sovereign especially some of their Captaines and Commanders being as Popishlie affected as themselves and having served in the warres in the behalf of the King of Spain and the Arch-Dutchesse against your Majesties Allyes which of what pernicious consequence it may prove and how prejudiciall to the safety of all your Kingdome we humblie leave to your Majesties high and Princely Wisdome And now upon this and many more which might be alledged most weightie and important reasons grounded upon the maintenance of the worship and service of almightie God the continuance and advancement of your Majesties high honour and profit the preservation of the ancient and undoubted Liberties of your people and therein of Justice and Industrie and Valour which clearly concernes the glorie and happinesse of your Majestie and all your Subjects and the preventing of imminent calamities and ruine both of Church and Common-wealth we your Majesties most humble and loyall Subjects the Knights Citizens and Burgesses of your House of Commons in the name of all the Commonaltie of the Kingdome who are upon this occasion most miserable disconsolate and afflicted prostrate at the throne of your Grace and Justice do most humbly and ardently beg a present remove of this insupportable burthen and that your Majesty would be graciously pleased to secure us from the like pressure for time to come The nine Heads of the House of Commons to the Speaker 1. THat it is the ancient right of Parliament to dispose of matters there debated in their own method 2. That it is their ancient custome to consider of Grievances before matters of Supplie 3. That yet neverthelesse in this Parliament to expresse our affection to his Majesty contrarie to ordinarie proceedings we have proceeded in the Supply as farre as we could in that Committee 4. That we have been so farre from delaying that post-posing the common and pressing grievances we have given precedencie to the supply joyning with it only the fundamentall and vitall Liberties of the Kingdome that give substance to the Subjects 5. Further to expresse the fulnesse of our affections we have exceeded our order in that particular concerning the supplie which though later in proposition yet hath been first made readie for conclusion in the Committee 6. No person or Councell can be greater lovers of or more carefull to maintain the sacred Rights and Prerogatives of the Crown then we and we do conceive that the maintaining of the fundamentall Rights and Liberties of the Subject is an especiall meanes to establish the glory of a Monarch and that by it his Subjects are the better enabled to do him service which hath been the cause of many glorious victories wone by this Nation above other Kingdomes of larger
of Justice And thereupon the Statutes cannot be intended to restrain all commitments unlesse a cause be expressed for that it would be very inconvenient and dangerous to the State to publish the cause at the very first Answer Hereupon it was replied by the House of Commons that all danger and inconvenience may be avoided by declaring a generall Cause as for treason suspicion of treason misprision of treason or fellony without specifying the particular which can give no greater light to a Confederate then will be conjectured by his very apprehension upon the imprisonment if nothing at all were expressed It was further alledged that there was a kind of contradiction in the position of the Commons when they say the partie committed without a cause shewed ought to be delivered or bailed Bailing being a kind of imprisonment Delivery a totall freeing To this it was answered that it hath alwayes been the discretion of the Judges to give so much respect to a Commitment by the Command of the King or the Privie Councell which are ever intended to be done on just weightie Causes that they will not presently set him free but baile him to answer what shall be objected against him on his Majesties behalf But if any other inferiour Officer commit a man without a cause shewed they do instantly deliver him as having no cause to expect their pleasure So the Delivery is applyed to an imprisonment by the command of some mean minister of Justice Bailing when it is done by the Command of the King or his Councell It was said by M r Attorney That Bailing was a grace and favour of a Court of Justice and that they may refuse to do it This was agreed to be true in divers cases as where the case doth appeare to be for fellony or other crimes expressed for that there is another way to discharge them in some convenient time by their triall yet in some of these cases the constant practise hath been anciently modernly to baile them But where no cause of the imprisonment is returned but the Command of the King there is no way to deliver such persons by triall or otherwise but that of the habeas Corpus and if they should be then remanded they may be perpetually imprisoned without any remedy at all and consequently a man that had committed no offence be in worse case then a great Offender for the latter should have an ordinarie triall to discharge him the other should never be delivered It was further said that though the Statute of Westm. 1. cap. 15. as a Statute by way of provision did extend only to the Sheriff yet the recitall of that Statute touching the 4 cases wherein a man was not replevisable at the Common Law namely those that were committed for the death of a man by the command of the King or the Justices or for the Forrest did declare that the Justices could not baile such a one and that Replevisable and Bailable were Synonyma and all one and that Stamford a Judge of great authority doth expound it accordingly and that neither the Statute nor he sayes replevisable by the Sheriff but generally without restraint and that if the Chief Justice commits a man he is not to be enlarged by another Court as appeareth in the Register To this it was answered First that the recitall and body of the Statute relates only to the Sheriff as appeareth by the very words Secondly that replevisable is not restrained to the Sheriffs for that the words import no more that a man committed by the Chief Justice is bailable by the Court of Kings Bench. Thirdly that Stamford meaneth all of the Sheriff or at least he hath not sufficiently expressed that he intended the Justices Fourthly It was denyed that Replevisable and Bailable were the same for they differ in respect of the place where they are used Baile being in the Kings Court of Record Replevisable before the Sheriff and they are of severall natures Replevisable being a letting at large upon Sureties Bailing being when one Traditur in ballium and the Baile are his Gaolers and may imprison him and shall suffer bodie for bodie which is not true of replevying by sureties And Baile differeth from Mainprize in this that Mainprize is an undertaking in a summe certain Bailing is to answer the condemnation in Civil causes and in Criminall body for body The reasons and authorities used in the first Conference were then renewed and no exception taken to any save in 22. H. 6. it doth not appear that the Command of the King was by his mouth which must be intended or by his Councell which is all one as is observed by Stamford for the words are these That a man is not replevisable by the Sheriff who is committed by the Writ or Commandment of the King 21. E. 1. rot 2. dorso was cited by the Kings Counsell But it was answered that it concerned the Sheriff of Leicester only and not the power of the Judges 33. H. 6. the Kings Attorney confesseth was nothing to the purpose and yet that Book hath been usually cited by those that maintain the contrary to the Declaration of the House of Commons And therefore such sudden opinion as hath been given thereupon is not to be regarded the foundation failing And where it was said that the French of 36. E 3. Rot. Parliament 9. which can receive no answer did not warrant what was inferred thence but that these words Sans disturbance mettre ou arrest faire et le contre par special commandment ou en autre maniere must be understood that the Statutes should be put in execution without putting disturbance or making arrest to the contrarie by speciall command or in other manner The Commons did utterly deny the interpretation given by the Kings Counsell and to justifie their own did appeal to all men that understood French and upon the 7 Statutes did conclude That their Declaration remained in undoubted truth not controlled by any thing said to the contrary The true Copies of the Records not printed which were used on either side of that part of the debate INter Recorda domini Regis Caroli in Thesauro Recepto Scacarii sui sub custodia domini Thesaurarii et Camerarii ibidem remanentia viz. placita coram ipso Domino Rege Concilio suo ad Parliament suum post Pascham apud London in Mâ—nerio Archipiscopi Ebor Anno Regni Domini Regis Edw. vicessimo primo inter alia sie continetur ut sequitur Rot. secundo in Dorso Vic. Leic. sci Stephanus Rubaz Vic. Leic. War coram ipso Domino Rege ejus concilio arianatus ad Levem positus de hoc quod cum Io. Botetourte Edel Hatche W. Hemelin nuper in ballium ipsius vicecom per Dominum Regem fuissent assignati and Goalas Domini Regis celiberandum eidem vic quendam W. de Petling per quendam Appellatorem ante adventum eorundam Justic. ibidem
these is the Case of S r Samuel Saltonstall It is Hill 12. Iacob He was committed to the Fleet per mandatum Domini Regis and besides by the Court of Chauncery for disobeying an order of that Court and is returned upon his habeas Corpus to be therefore detained And it is true that a remittitur is entred in the Roll but it is only a remittitur prisonae predict without quousque secundum legem deliberatus fuerit And in truth it appeares in the Record that the Court gave the Warden of the Fleet 3 severall dayes at severall times to amend his Return and in the interim remittitur prisonae predict still Certainly if the Court had thought that the Return had been good they would not have given so many severall dayes to have amended it For if that mandatum Domini Regis had been sufficient in the Case why needed it to have been amended The ninth and last of these is Trinit 13. Iacob Rot. 71. the Case of the said S r Samuel Saltonstall He is returned by the Warden of the Fleet as in the Case before and generally remittitur as in the Roll which proves nothing at all that therefore the Court thought he might not by Law be enlarged and besides in both Cases he stood committed also for disobeying an order in Chauncery These are all that have been pretended to the contrary in this great point and upon the view of them thus opened to your Lordships it is plain that there is not one not so much as one at all that proveth any such thing as that persons committed by the Command of the King or of the Lords of the Councell without cause shewed might not be enlarged but indeed the most of them expresly prove rather the contrary Now my Lords having thus gone through the Presidents of Record that concern this point of either side before I come to the other kind of Presidents which are the solemn resolution of Judges in former times I shall as I am commanded by the House of Commons represent unto your Lordships somewhat else that they have thought very considerable with which they have met while they were in a most carefull enquirie of whatsoever concerned them in this great Question It is my Lords a draught of an Entry of a Judgement in that great Case lately adjudged in the Court of Kings Bench when divers Gentlemen imprisoned per speciale mandat Domini Regis were by the Award and Judgement of the Court after solemn debate sent back to Prison because it was expresly said that they could not in Justice deliver them though they prayed to be bailed The case is famous and well known to your Lordships therefore I need not further mention it And as yet indeed there is no Judgement entred upon the Roll but there is room enough for any kind of Judgement to be entred But my Lords there is a form of a Judgement a most unusuall one such a one as never was in any such Case before used for indeed there was never before any Case so adjudged and this drawn up by a chief Clark of that Court by direction of M r Attorney Generall as the House was informed by the Clark in which the reason of the Judgement and the remanding of those Gentlemen is expressed in such sort as if it should be declared upon Record for ever that the Law were that no man could be enlarged from imprisonment that stood committed by any such absolute command The draught is only in S r Iohn Henningham's Case being one of the Gentlemen that was remanded and it was made for a form for all the rest The words of it are after the usuall Entrie of a Curia advisur vult for a time that visis return predict nec non diversis antiquis Recordis in Curia hic remanent consimiles casus concernentibus maturaque deliberatione inde prius habita eo quod nulla specialis causa captionis five detentionis predict Johannis exprimitur sed generaliter quod detentus est in prisona predict per speciale mandatum Domini Regis ideo predictus Johannes remittitur perfato Custodi Marr. hospitii predict salvo custodiend quousque c. that is quousque secundum legem deliberatus fuerit And if that Court which is the highest for ordinary Justice cannot deliver him secundum legem what Law is there I beseech you my Lords that can be sought for in any other inferiour Court to deliver him Now my Lords because this draught if it were entred in the Roll as it was prepared for no other purpose would be a great declaration contrary to the many Acts of Parliament already cited contrary to all Presidents of former times and to all reason of Law to the utter subversion of the chiefest Liberty and Right belonging to every Free-man of the Kingdome and for that especially also it supposeth that divers ancient Records had been looked into by the Court in like Cases by which Records their Judgements were directed whereas in truth there is not one Record at all extant that with any colour not so much indeed as with any colour warrants the Judgement therefore the House of Commons thought fit also that I should with the rest that hath been said shew this draught also to your Lordships I come now to the other kind of Presidents that is solemn Resolutions of Judges which being not of Record remain only in authentick Copies But of this kind there is but one in this Case that is a resolution of all the Judges in England in the time of Queen Elizabeth It was in the foure and thirtieth yeare of her reign when divers persons had been committed by absolute command and delivered by the Justices of one Bench or the other whereupon it was desired that the Judges would declare in what Cases persons committed by such Command were to be enlarged by them The resolution hath been variously cited and variously apprehended The House of Commons therefore desiring with all care to enforme themselves as fully of the truth of it as possibly they might got into their hands from a member of their House a book of selected Cases collected by a learned and reverend Chief Justice of the Common Pleas that was one of them that gave the Resolution which is entred at large in that book I mean the Lord Chief Justice Anderson It is written in that book in his own hand as the rest of the book is And however it hath been cited and was cited in that great Judgement given upon the habeas Corpus in the King's Bench as if it had been that upon such commitments the Judges might not baile the prisoners yet it is most plain that in the resolution it self no such thing is contained but rather expresly the contrary I shall better represent it to your Lordships by reading it then by opening it Then it was read If this Resolution doth resolve any thing it doth indeed upon the matter resolve fully the
there wants legall form for the writ of Habeas Corpus is the commandment of the King to the Keeper of the prisons and thereupon they are to make return both of the body and of the cause of the commitment and that cause is to appear of them who are the immediate Officers And if he doth it by signification from another that return is defective in Law and therefore this return cannot be good for it must be from the Officer himself and if the cause returned by him be good it bindes the prisoners The warrant of the Lords was but a direction for him he might have made his return to have been expresly by the Kings commandment there was a warrant for it I shall not need to put your cases of it for it is not enough that he returns that he was certified that the commitment was by the Kings command but he must of himself return this fact as it was done And now my Lord I shall offer to your Lordship presidents of divers kindes upon commitments by the Lords of the Privy Councel upon commitments by the speciall command of the King and upon commitments both by the King the Lords together And howsoever I conceive which I submit to your Lordship that our case will not stand upon presidents but upon the fundamentall Laws and Statutes of this Realm and though the presidents look the one way or the other they are to be brought back unto the Laws by which the Kingdome is governed In the first of Henry the eighth Rot. Parl. one Harison was committed to the Marshalsey by the command of the King and being removed by Habeas Corpus into the Court the cause returned was that he was committed per mandatum Domini Regis and he was bailed In the fortieth of Elizabeth Thomas Wendon was committed to the Gatehouse by the commandment of the Queen and Lords of the Councell and being removed by an Habeas Corpus upon the generall return and he was bailed In 8 Iacobi one Caesar was committed by the Kings commandment and this being returned upon his Habeas Corpus upon the examination of this case it doth appear that it was over ruled that the return should be amended or else the prisoner should be delivered The presidents concerning the commitment by the Lords of the Councell are in effect the same with these where the commitment is by the reason why the cause of the commitment should not be shewn holds in both cases and that is the necessity of suit and therefore Master Stamford makes the command of the King and that of the Lords of the Privy Councell to be both as one and to this purpose if they speak he speaks and if he speaks they speak The presidents that we can shew you how the Subject hath been delivered upon commitment by the Lords of the Councell as in the time of Henry the eight as in the times of Queen Elizabeth Queen Mary are infinite as in the ninth of Elizabeth Thomas Lawrence was committed to the Towre by the Lords of the Councell and bailed upon an Habeas Corpus In the 43 of Elizabeth Calvins case In the third of Elizabeth Vernons case These were committed for high treason and yet bailed for in all these cases there must be a conviction in due time or a deliverance by Law There be divers other presidents that might be shewn to your Lordship In 12 Iacobi Mâ—les Renards In 12 Iacobi Rot. 155. Richard Beckwiths case In 4 Iacobi Sir Thomas Monson was committed for treason to the Towre of London and afterwards was brought hither and bailed and since our case stands upon this return and yet there is no sufficient cause in Law expressed in the return of the detaining this Gentleman and since these presidents do warrant our proceedings my humble suit unto this Court is that the Gentleman Sir Iohn Henningham who hath petitioned his Majesty that he may have the benefit of the Law and his Majesty hath signified it it is his pleasure that justice according to the Law should be administred at all times in generall to all his Subjects and particularly to these Gentlemen which is their birth-right My humble suit to your Lordship is that these Gentlemen may have the benefit of that Law and be delivered from their imprisonment The Argument of Master Noye upon the Habeas corpus May it please your Lordship I am of Councell with Sir Walter Earl one of the prisoners at the Barre the return of this writ is as those that have been before they are much of one tenour and as you have heard the tenour of that so this Gentleman coming hither by an Habeas Corpus I will by your Lordships favour read the writ Carolus Dei Gratia Iohanni Lylo Milit Guardian Prison nostrae de le Fleet Salut Praecipimus tibi quod corpus Walteri Earl Milit in prison nostra sub custodia tua detent ut dicit una cum causa detentionis suae quocunque nomine praedict Walter censeat in eadem Habeas Corpus ad subjiciendum recipiendum ea quae curia nostra de eo ad tunc ibidem ordin conting in hac parte haec nallatenus omit periculo incumbent habeas tibi hoc breve Test Hyde apud Westminster quarto die Novembris Anno 8. Executio istius brevis patet in quadam schedula huic brevi annexat Respons Johan Liloe Guardian Prison de le Fleet. Ego Iohannes Lyloe Mil Guardian Prison domini Regis de le Fleet Serenissimo Domino Regi apud Westminster 8. Post receptionem hujus brevis quod in hac schedula est mentionat ' Certifico quod Walter Earl miles in eodem brevium nominat detentus est in prisona de le Fleet sub custodia mea praedict per speciale mandatum domini Regis mihi significatum per VVarrantum duorum aliorum de Privato Concilio per Honorabilissimi dicti Domini Regis cujus quidem tenor sequitur in haec verba Whereas Sir Walter Earl Knight was heretofore committed to your custody these are to will and require you still to detain him letting you know that both his first commitment and this direction for the continuance of him in prison were and are by his Majesties speciall commandment from White Hall 7 Novembris 1627. Thomas Coventree C. S. Henry Manchester Thomas Suffolk Bridgewater Kellie R. Duneln ' Thomas Edmunds Iohn Cook Marlborough Pembrook Salisbury Totnes Grandisson Guliel Bath and Wells Robert Nanton Richard Weston Humphrey Mayes To the Guardian of the Fleet or his Deputy Et haec est causa detentionis praedict Walteri Earl sub custodia mea in Prison praedict Attamen corpus ejusdem Walteri coram Domino Rege ad diem locum praedictum post receptionem brevis praedict pa rat habeo prout istud breve in se exiget requiret Respon Johan Liloe milit Guardian Prison de le Fleet. My Lord the first Habeas corpus bears date the
is said that bayl is ex gratia he answers that if the Prisoner comes to Habeas Corpus then it is not ex gratia Yet the Court may advise but mark the words ad subjiciendum recipiendum prout Curia consideraverit now it is impossible the Judges should do so if no cause be expressed for it they know no cause he may bring the 1.2.3 and fourth Habeas Corpus and so infinite till he finde himself a perpetual Prisoner so that no cause expressed is worse for a man then the greatest cause or Villany that can be imagined and thus far proceeded that learned Gentlemen M r. GLANVILES Argument HE said that by favour of the House of Commons he had liberty to speak if opportunity were offered he applies his answer to one particuler of M r. Attorney who assigned to the King 4. great trusts 1. of War 2. Coins 3. Denizens 4. Pardons Is assented unto that the King is trusted with all these 4. legal Prerogatives but the Argument followeth not the King is trusted with many Prerogatives Ergo in this non sequitur non est sufficiens enumeratio partium he said he could answer these particulars with 2. rules whereof the first should wipe of the first and the second and the other the third and fourth The first rule is this there is no fear of trusting the King with any thing but the fear of ill Councel the King may easily there be trusted where ill Councel doth not ingage both the King and Subjects as it doth in matter of War and Coin If he miscarry in the Wars it is not alwayes pecuum Achiro but he smarts equally with the people If he abase his Coin he looseth more then any of his people Ergo he may safely be trusted with the flowers of the Crown War and Coin The second rule he began was this when the King is trusted to confer grace it is one thing but when he is trusted to infer an injury it is another matter The former power cannot by miscouncelling be brought to prejudice another The latter may if the King pardoneth a guilty Man he punisheth not a good subject if he denizen never so many strangers it is but damnum sine injuria we allow him a liberty to confer grace but not without cause to infer punishment and indeed he cannot do injury for if he command to do a Man wrong the command is void alter fit Author and the Actor becomes the wrong doer Therefore the King may be safely trusted with War Coin Denizens and Pardons but not with a power to imprison without expression of Cause or limmitation of time because as the Poet tells us Libertas potius auro The Answer of the Judges for matter of Fact upon the HABEAS CORPUS 21. April THe Chief Justice saith they are prepared to obey our Command but they desire to be advised by us whether they being sworn upon penalty of forfeiting Body Lands and Goods into the Kings hands to give an account to him may without Warrant do this The Duke said he had acquainted the King with the business and for ought he knoweth he is well content therewith But for better assurance he hath sent his brother of Anglesey to know his pleasure Devonshire saith if a complaint be made by a mean Man against the greatest Officer in this place he is to give an account of his doings to this House Bishop of Lincoln saith this motion proceeded from him and so took it for clear that there was an appeal from the Chancery to a higher Court then the Kings-bench and in that Court hath ever given an account of their doings The Lord Say saith he wondred there should be any question made of this business because in his opinion this being the highest Court did admit of no appeal The President said the Judges did not do this by way of appeal but as the most common way for them this being a matter concerning the Kings prerogative Lord Say saith if they will not declare themselves we must take into consideration the point of our priviledge The Duke saith this was not done by the Judges as fearing to answer but of respect to the King And now his brother was come with answer from the King that they might proceed Order was taken that this passage should not be entered into the Journal Book and so Judge WHITLOCK spake MY Lords we are by your appointment here ready to clear any aspersion of the House of Commons in their late presentment upon the Kings-bench that the Subject was wounded in this Judgement there lately given If such a thing were my Lords your Lordships not they have the power to question and Judge the same But my Lords I say there was no Judgement given whereby either the prerogative might be inlarged or the eight of the subject trenched upon It is true my Lords in Michaelmas Term last fower Gentlemen petitioned for a Habeas Corpus which they obtained and Councel was assigned unto them the return was per spialem mandatum Domini Regis which likewise was made known unto us under the hands of eighteen privy Councellours Now my Lords if we had delivered them presently upon this it must have been because the King did not shew cause wherein we should have judged the King had done wrong and this is beyond our knowledge for he might have committed them for other matters then we could have imagined But they might say thus they might have been kept in Prison all their dayes I answer no but we did remit them that we might better advise of the matter and they the next day might have had a new Writ if they had pleased but they say we ought not to have denied bayl I answer if we had done so it must needs have reflected upon the King that he had unjustly imprisoned them and it appears in Dyer 2. Eliz. that divers Gentlemen being committed and requireing Habeas Corpus some were bayled others remitted whereby it appears much is left to the discretion of the Judges For that which troubleth so much remittitur quousque this my Lords was onely as I said before to take time what to do and whereas they will have a difference betwixt remittitur and remittitur quousque my Lords I confess I can finde none but these are new inventions to trouble old Records And herein my Lords we have dealt with knowledge and understanding for had we given a Judgement the party must thereupon have rested every Judgement must come to an issue in matter in fact or demur in point of Law here is neither therefore no Judgement For endeavouring to have a Judgement entered it is true Mr. Attorney pressed the same for his Masters service but we being sworn to do right betwixt the King and his subjects commanded the Clark to make no entry but according to the old form and the rule was given by the Chief Justice alone I have spent my time in this Court and I
frequently professed that they would not deminish nor blemish his Royal and just Prerogative so he presumes ye will all confess it a point of extraordinary grace and Justice in him to suffer it to rest so long in dispute without interruption But now his Majesty considering the length of time which it hath already taken and fearing nothing so much any future loss as that whereof every hour and minute is so precious and foreseeing that ordinary way of debate though never so carefull must in regard of the forms of both Houses necessarily take up more time then the affairs of Christendom can permit his Majesty out of his great and Princely care hath thought it expedient to shorten the business by declaring the clearness of his own heart and intention And therefore he hath commanded me to let you know that he holds the Statue of Magna Charta and the other 6. Statutes insisted on for the Subjects Liberty to be all in force and assureth you that he will maintain all his Subjects in the just freedom of their Persons and in safety of their estates and that he will Govern according to the Laws and Statutes of the Realm and that you shall finde as much security in his Majesties Royal word and promise as in the strength of any Law you can make so that hereafter you shall never have cause to complain The conclusion is this that his Majesty prayeth that God who hath hitherto blessed this Kingdom and hath put into his heart this day to come unto you will make the success hereof happy both to King and People And therefore he desireth that no doubt or mistrust may possesse any man but that you all will proceed speedily and unanimously with the business The Bishop of EXCETERS Letter sent to the House of COMMONS 28. April 1628. Gentlemen FOr God sake be wise in your well meant Zeal why do you argue away precious time that can never be revoked or repaired Woe is me while we dispute our friends perish and we must follow them where are we if we break and I tremble to think we cannot but break if we hold so stiff Our Liberties and proprieties are sufficiently declared to be sure and legal our remedies are clear and irrefragable what do we fear every Subject sees the way now chalked out for future Justice and who dares henceforth tread besides it Certainly whilest Parliaments live we need not misdoubt the violations of our Freedoms and Rights May we be but where the Law found us we shall sufficiently enjoy our selves and ours It is no season to search for more Oh let us not whilest we over-rigedly plead for an higher strain of safety put our selves into a necessity of ruine and utter despair of redress Let us not in the suspition of Evils that may be cast our selves into a present confusion If you love your selves and your Countrey remit some thing of your own terms and since the substance is yielded by your Noble Patriots stand not too rigorously upon points of circumstance Fear not to trust a good King who after the strict Laws made must be trusted with the execution Think that your Countrey nay Christendom lies on the mercie of your present resolutions Relent or farewell welfare From him whose faithfull heart bleeds in a vowed sacrifice for his King and Countrey EXCETER M r. HACKVVELL of LINCOLNS-INNE his Speech in the Lower-House 1. May 1628. SIR I Chose rather to discover my weakness by speaking then to betray my conscience by silence My opinion is that we shall do well totally to omit our resolution out of this Bill and rely onely upon a confirmation of the Laws The Objections made against this Opinion are two THe first is that we shall thereby recede from our own resolution The second that by a bare confirmation of the Old Laws without the inserting of our resolution by way of explanation we shall be but in the same case as before For the first that though we desire onely a confirmation without adding of our resolution we do not thereby recede from our resolution I reason thus Our resolution was drawn out of the sence of those Laws which are now desired to be confirmed so that no question can be made by any of us that have thus declared our selves but that our resolution is virtually contained in those Laws if that be so how can our acceptance of a confirmation of these Laws be a departure from our resolution Nay rather we think the contrary is true he that doubts that by confirmation of these Laws our resolution is not hereby confirmed doubts whether we have justly deduced our resolutions out of those Laws and so calls our resolution into question This Argument alone is in my opinion a full answer to that first Objection that in desiring of a bare confirmation of those Laws we depart from our resolutions This Argument alone is in my opinion a full answer to that first Objection that in desiring of a bare confirmation of these Laws we depart from our resolution The second Objection is that if we have nothing but a confirmation we are in no better case then we were before those late violations of the Law This I deny and do confidently affirm that although we have no more then a confirmation of those Laws which are recited in the Bill that is now before us we shall depart hence in far better case then we came and that in divers respects First some of the Laws recited in this Bill and desired to be confirmed are not printed Laws and are known to few Professors of the Law and much less to others and yet they are Laws of as great consequence for the liberty of the Subject if not of greater then any that are printed as namely 25. E. 3. No. 1. That loanes against the will of the lender are against reason and the freedom of the Realm 36. E. 3. No. 9. By which imprisonments by special commandment without due Process are forbidden These two are not printed The excellent Law de tollagio non Concedendo in print hath in a publick Court been by a great Councellour said to be but a Charter and no Law The Satute 1. Rich. 3. against benevolences is by some opinions in print an absolute Law if we can get all these goods Laws besides those 6. other which are expositions of Magna Charta in the point of the freedom and our Persons to be confirmed and put in one Law to the easie view of all men is not our Case far better then when we came hither Secondly will not the occasion of the making of this Law of confirmation so notoriously known be transmitted to all posterity certainly it will never be forgotten that the occasion thereof was the imprisonment of those worthy Gentlemen for not lending and the resolution in the Kings-bench in denying to bayl them and is not the occasion of the making of a Law a good rule to expound it If so
have been imprisoned for suing ordinary Actions and Statutes at the Common-Law untill they have been constrained to leave the same against their wills and put the same to order albeit Judgement and Execution have been had therein to their great losses and griefs for the aid of which Persons her Majesties Writs have sundry times been directed to divers Persons having the custody of such Persons unlawfully imprisoned upon which Writs no good or Lawfull cause of imprisonment hath been returned or certified whereupon according to the Laws they have been again committed to Prison in secret places and not to any common ordinary Prison or Lawfull Officer as Shrieff or other lawfully authorized to have or keep a Goal so that upon Lawfull complaint made for their delivery the Queens Courts cannot learn to whom to direct her Majesties Writs and by this means Justice cannot be done and moreover divers Officers and Serjeants of London have been many times committed to Prison for Lawfull executing of her Majesties Writ sued forth of her Majesties Courts at West-minster and thereby her Majesties Subjects and Officers are so terrified that they dare not sue or execute her Majesties Laws her Writs and Commandments Divers others have been sent for by Pursevants and brought to London from their dwellings by unlawfull imprisonment have been constrained not onely to withdraw their Lawfull Suits but have also been compelled to pay the Pursevants for bringing such Persons great summes of money All which upon complaint the Judges are bound by Office and Oath to relieve and help by and according to her Majesties Laws And when it pleaseth your Lordships to will divers of us to set down in what cases a Prisoner sent to custody by her Majesty her Councel some one or other or two are to be detained in Prison and not to be delivered by her Majesties Court or Judges we thinck that if any Person be committed by her Majesties Command from her Person or by order from the Councel board or if any one or two of her Councel commit one for high Treason such Persons so in the cases before committed may not be delivered by any of her Courts without due Trial had Nevertheless the Judges may Award the Queens Writ to bring the bodies of such Persons before them and if upon return thereof the causes of their commitment be certified to the Judges as it ought to be then the Judges in the cases before ought not to deliver him but to remaund the Prisoner to the place from whence he came Which cannot conveniently be done unless notice of the cause in general or else special be known to the Keeper or Goaler that shall have the custody of such Prisoner All the Judges and Barons did subscribe their names to these Articles Termino Pascha 34. Eliz. and sent one to the Lord Chancellor and another to the Lord Treasurer after which time there did follow more quietness then before in the cause afore mentioned The KINGS Message the 2. May 1628. by Secretary COKE HIs Majesty hath commanded me to make known to this House that howsoever we proceed with the business we have in hand which he will not doubt but to be according to our constant professions and so as he may have cause to give us thanks yet his resolution is that both his royal care and his harty and true affection towards all his loving Subjects shall appear to the whole Kingdom and to all the World that he will govern us according to the Laws and Customes of the Realm that he will maintain us in the Liberties of our Persons and propriety of our goods so as we may enjoy as much happiness as our Forefathers in their best times and that he will rectifie what hath been or may be amiss amongst us so that there may be hereafter no just cause to complain wherein as his Majesty will ranck himself amongst the best of our Kings and shew he hath no intention to invade or impeach our Lawfull Liberties or Rights so he will have us to match our selves with the best Subjects by not incroaching upon that Soveraignty and Prerogative which God hath put into his hands for our good and by containing our selves within the bounds and Laws of our Forefathers without streining or inlarging them by new Explanations Interpretations Expositions or Additions in any sort which he clearly telleth us he will not give way unto That the weight of the affairs of Christendom do press him more and more and the time is now grown to that point of maturity that it cannot indure long debate or delay so as this Session of Parliament must continue no longer then Tuesday come sevenight at the furthest within which time his Majesty for his part will be ready to perform what he hath promised to us and if we be not as forward to do that is fit for us it shall be our own faults Lastly upon the assurance of our good dispatch and correspondency his Majesty declareth that his Royal intention is to have another Session at Michalmass next for the perfecting of such things as cannot now be done M r. MASONS speech 2. May 1628. I Am of opinion with the Gentleman that spake first that in our proceedings in the matter now in debate we should have use of the Title of the Statute called circumspecte agatis for it concerns the Liberty of our Persons without which we do not enjoy our lives The Question is WHether in this Bill for the explanation of Magna Charta and the rest of the Satutes we shall provide that the cause of the commitment must be expressed upon the commitment or upon the Return of the Habeas Corpus Before I speak to the question it self I shall propose some observations in my conceit necessarily conduceing to the debate of the Matter 1. That we ought to take care and to provide for posterity as our Predecessors have done for us and that this provident care cannot be expounded to be any distrust of the performance of his Majesties gracious Declaration this Act providing for perpetuity to which his Highness promise unless it were by Act of Parliament cannot extend 2. That we having long debated and solemnly resolved our Rights and Priviledges by virtue of these Statutes and if now we shall reduce those Declarations and those resolutions into an Act we must ever hereafter expect to be confined within the bounds of that Act being made at our Suit and to be the limmits of the Prerogative in in that respect and it being an Act of explanation which shall receive no further explanation then it self contains 3. That by this Act we must provide a remedy against the Persons which detain us in Prison for as to the Commander there can be no certain Concerning the Question it self IT hath been solemnly and clearly resolved by the House that the commitment of a Freeman without expressing the cause at the time of the commitment is against the Law If by this Act
and free Customes of the Realm from your Majestie or your privy Councel And where also by the Statute called the great Charter of the Liberties of England It is declared and enacted That no Freeman may be taken nor imprisoned nor be disseised of his Freehold nor Liberties nor his free Customes nor be outlawed or exiled or in any manner destroyed but by the Lawfull judgement of his Peers or by the Law of the Land And in the 28. year of the Raign of King Edw. 3. it was declared and enacted by Authority of Parliament that no man of what Estate or condition he be shall put out of his Land or Tenement nor taken nor imprisoned nor disinherited nor put to death without being brought to answer by due process of Law Nevertheless against the Tenour of the said Statutes and other the good Laws and Statutes of your Realm to that end provided divers of your Subjects have of late been imprisoned without any cause shewed and when for their deliverance they were brought before your Justices by your Majesties Writ of Habeas Corpus there to undergo and receive as the Court should order and the Keepers commanded to certefie the causes of their detainer no cause was certified but that they were detained by your Majesties special command signified by the Lords of your privy Councel and yet were returned back to several Prisons without being charged with any thing the which they might make answer to and to Law And whereas of late great Companies of Souldiers and Marriners have been dispersed into divers Countreys of the Realm and the Inhabitants against their wills have been compelled to receive them into their houses and there to suffer them to sojourn against the Laws and Customes of this Realm and to the great grievance and vexation of the people And whereas also by Authority of Parliament in the 25. E. 3. it is declared and enacted that no man shall be fore-judged of Life or Limb against the form of the great Charter and the Law of the Land and by the said great Charter and other the Laws and Statutes of this your Realm no man ought to be adjudged to death but by the Laws established in this your Realm Nevertheless of late times divers Commissions under your Majesties great Seal have issued forth by which certain Persons have been assigned and appointed Commissioners with power and Authority to proceed within the Land according to the Justice of Martial Law against such Souldiers or Marriners or other dissolute Persons joyning with them as should commit any Murther Robbery Fellony Mutiny or other outrage or misdemeanour whatsoever and by such summary course and order as is agreeable to Martial Law and is used in Armies in time of War to proceed to the trial and condemnation of such offenders and them to cause to be executed and put to death according to the Law Martial By pretext whereof some of your Majesties Subjects have been by some of the said Commissioners put to death when and where if by the Laws and Statutes of the Land they had deserved death by the same Laws and Statutes also they might and by none other ought to have been adjudged and executed And also sundry grievous offenders by colour thereof claiming and exemption have escaped the punishment due to them by the Laws and Statutes of this your Realm By reason whereof divers of your Officers and Ministers of Justice have unjustly refused or forbore to proceed against such offenders according to the same Laws and Statutes upon pretence that the said offenders were punishable onely by Martial Law and by Authority of such Commissions as aforesaid which Commissions and all other of like nature are directly contrary to the said Laws and Statutes of this your Realm They do therefore humbly pray your most Excellent Majesty that no man hereafter be compelled to make or yield any Guift Loan Benevolence Tax or such like charge without common consent by Act of Parliament And that none be called to make answer or to take such an Oath or to give attendance or to be confined or otherwise molested or disquieted concerning the same or for refusal thereof And that no Freeman may man such manner as is before mentioned be imprisoned or detained And that your Majesty would be pleased to remove the said Souldiers and Marriners and that your people may not be so burthened in time to come And that the aforesaid Commissions for proceeding by Martial Law may be revoked annulled and that hereafter no Commissions of like nature may issue forth to any Person or Persons whatsoever to be executed as aforesaid least by colour of them any your Majesties Subjects be destroyed and put to death contrarie to the Laws and Franchises of the Land All which they most humbly pray of your most Excellent Majestie as their Rights and Liberties according to the Laws and Statutes of this Realm And that your Majestie would also vouchsafe to declare that the Awards doings and proceedings to the prejudice of your people in any the premises shall not be drawn hereafter into consequence or example And that your Majestie would be pleased gratiously for the further comfort and safety of your people to declare your Royal will and pleasure that in the things aforesaid all your Officers and Ministers shall serve you according to the Laws and Statutes of this Realm as they tender the Honour of your Majestie and the prosperity of this Kingdom S r. BENJAMIN RUDDIERDS Speech Mr. Pym I Did not think to have spoken again to this Bill because I was willing to believe that the forwardness of this Committee would have prevented me but now I hold my self bound to speak and to speak in earnest In the first year of the King and the second convention I first moved for the increase and inlarging of poor Ministers liings I shewed how necessarie it was that it had been neglected this was also commended to the House by his Majestie there were as now many accusations on foot against scandalous Ministers I was bolde to tell the House that there were scandalous livings which were much the cause of the other livings of 5. Marks of 5. l. a year that men of worth and of parts would not be musled up to such pittances that there were some places in England which were scarce in Christendom where God was little better known then amongst the Indians I exampled it in the utmost skirts of the North where the prayers of the common people are more like Spells and Charms then devotions the same blindeness and ignorance is in divers parts of Wales which many of that Countrey doth both know and lament I declared also that to plant good Ministers was the strongest and surest means to establish true Religion that it would prevail more against Papistry then the making of new Laws or executing of old that it would counterwork Court Conivence and Luke-warm accommodation that though the calling of Ministers be never
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 manifest 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 desire 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 overthrow the Duke is by humble Petition to his Majestie With the violent sort we have taken a contrary course by working upon their passions and intreating their fancies with probabilities and presidents which never were heard of that favourites have but Parliament proofs they may wrastle for a time but at last the Parliament hath ever overthrow them upon their backs we incourrage them withall the wits we have to fall upon the Duke and perswade them now is the time or never the King being in such apparant necessity insomuch that we assure our selves that God hath so forsaken and infatuated them that they shall not onely strike and dash upon the same rock again but split and wrack in the bottomless sea of destruction We have now many strings to our bow and have strongly fortified our faction and have added two Bulwracks more for when King Iames lived you know he was very vehement against Arminianisme interrupted with
who by this Innovation will be much vilified and of small reckoning in the Common-Wealth And unto the Magistrates of this Kingdom who in respect of their offices and place wherein they serve as also the gravity and wisdom of their Persons in publick services and assemblies have used to have precedence before others but now they must give place unto Barronets and their descendants albeit some of them are and many of them in time to come may be mean in birth poor in state and of small worth and desert And unto the whole Communalty whose descendants by their virtues and good fortunes may hereafter attain unto credit and reputation in the Common-Wealth Inconveniences that will arise to his Majestie and the State by reason of this new institution THere will be always dislike envy and heart-burning between the Gentry of the Kingdom and the Barronets The Honour of Knight-hood which was wont to incourage generous mindes unto high exploits will now come in t contempt for be they of never so good prowess and valour they must by this institution be inferior unto Barronets of small worth Knight-hood hath been held a competent reward for forraign and home imployments and now his Majestie must be driven to search new ways for the recompence and satisfaction of such services Gentlemen of Lively-hood and estimation will refrain his Majesties service in publick Assemblies for the Administration of Justice and otherwise because they scorn to give place unto many of the Barronets whom they account their inferiors The reputation of Knight-hood and antiquity of discent hath in former times much advanced the Gentry so quallified in preferment to marriage who are very much prejudiced by this Hereditary Tittle Great Noble men of this Kingdom have been degraded from thein particular dignity for want of means to support their Honours but these Barronets albeit they shall happen to be of no worth either in estate or desert must have precedence before Knights of greater reputation Nothing is more commended then Honour springing out of virtue and desert but to purchase Honour with money as Barronets have done is a temporall symmony and dishonorable to the States The Communalty of the Kingdom ever since the first institution thereof hath consisted of certain degrees known and legall additions without change or alteration may by way of president alter the whole strain of the Common-Wealth His Majestie by his prerogative Royall Creates Barrons Viscounts Earls and many other degrees of Nobillity as other his Ancestors and Predecessors have done but the creation of this or any other in Communalty is not warranted by any former president usage or custom The Examination of ANDREVV Le BRUN a Frenchman Captain of the MARY of ROCHEL taken before ABRAHAM CELMER Merchant Major of the Burrough of PLIMOUTH 16 May 1628. THe examinate saith that one Sunday being the 17 of April last past he departed from Plimouth harbor in company with the English Fleet whereof the Earl of Denbigh is General and one the first day of May then following the said Fleet arrived and came at Anchor at Charleboy in the rode of Rochell about 4 of the clock in the afternoone where at the said arriuall they found 20 sail of the King of France his ships whereof six were ships of about 300 Tuns and the rest were smaller ships and forthwith the said French ships put themselves to sail and went in nearer to the Fortifications where they also Anchored within two cannon shot of the English Fleet And saith that one of his Majestie ships shot off one peece of Ordinance and no more and the said French ships as they returned from the English Fleet shot off oftentimes to them and that the same Fleet remained there untill the 8 day of the same month of May in which time there was a Wherry sent from the fleet into Rochell wherein there were two English and one French man to inquire the State of the said Town and that if they were there safe arrived they should make a fire upon one of the Towers of the Town to give notice thereof which accordingly they did and also to make so many fires more one the Walls of the said Town as they have moneths victualls there but they made not any answer thereof Whence it was collected that they had but a small quantity of victualls and said that the said English as he hath heard promised to sink the said French ships when the waters did increase and the winde came at West North-West it being then neap tides and about two days after the water did increase and the windes came accordingly and being then intreated to fight with them yet did not but came away without fighting or releiving the Town and saith that one the 8 day of May the said English Fleet weighed Anchor and set sail to depart and 4 of the French great ships weighed Anchor also and came after them and shot divers times at the said Fleet and the said Fleet shot at them again and the said examinate came in company with the said Fleet as far as Bell Isle where he departed from them one the 10 of this instant and lastly saith that during all the time the English Fleet was there the Town of Rochel shot to the King of France his ships and Fort but chiefly upon the arrival of the said Fleet there Articles wherewith MELVINE is charged 1. MR. Melvine said that the Dukes plot was that the Parliament should be dissolved And that the Duke and the King with a great Army of Horse and Fott would War against the cominalty and that Scotland should assist him so that when War was amongst our selves the Enemy should come in for this Kingdom is already sould to the Enemy by the Duke 2. That the Duke had a stronger Councel then the King of which were certain Iesuites Scotish men and that they did sit in Councel every night from one of the clock till three 3. That when the King had a purpose to do any thing of what consequence soever the 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. CAROLI 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
Moseley covenanteth that his man Brograve should have 80 pounds and then he should have an Injunction but the Chancellor having Intimation thereof prevented the same yet after by Covenant Moseley procured his man 50 pounds That this was an ordinarie course cited many particulars that Moseley would in his private Chamber adde to Orders or detract from them or that was for the King or against the King as men would come off to him This is referred to a Committee to be examined Mr. Selden REported from the examination of Allen for so much as concerneth the Priviledge of this House by the first and third Article against him This justified by a Letter written by Allen to Mr. Barton the Puritan faction denied supply like Water-men provoked to War rowed another way for his Author of this he produceth a book set forth by King Iames in the 19 year of his Reign pag. 13. to shew how the Puritan faction be clear by mentioning the particular Members of the Commons House and pag. 5. in the same pag. all which they cloke with Religion and when he had boldly insisted on these he said I pray note it It is not this Parliament I speak of it was another Sir Robert Phillips THat he may be sent to the Tower and that he may stand in some publick place with a Paper declaring the cause or such other punishment as the House shall think fit Mr. Pym THat other matter of greater importance being under examination he may for the present rest in custodie and I doubt not but there is matter sufficient to inflict further punishment Ordered that Allen shall first answer his contempt at the Committee for Religion on Munday next Mr. Shervile THat the Committee for Pardons is sine die therefore he moveth for another day whereupon there is order to meet this afternoon Mr. Selden reported the draught of Mr. Mountagues interlined Pardon concerning the Additions more than an ordinarie Coronation Pardon except sundrie causes depending in the three Courts in Westminster-hall and the High Commission Court For Manwering all offences for time past and for time to come Sir Iohn Stanhope MOveth That one Lynne a Member of this House and Secretary to the Bishop of Winchester may look on the Pardon and be injoyned to declare whether he know the hand or no. Mr. Lynne declareth the interlined particulars to be part his Lords hand and part his own hand by his Lords command yet some of the interlined particulars he knew not the hand Sir Nathaniel Ritch thanked this Gentleman for dealing clearly with the House and saith for his encouragement he deserveth thanks from the whole House Sir Iohn Elliot moveth That a select Committee may extract a charge against the Bishop of Winchester that we may have judgement against him Sir Daniel Norton THat a Doctor of Divinitie in the Bishop of Winchesters Diocess a very grave Divine Doctor Moor the Bishop of Winchester said to him he had heard him often preach against Poperie before the Kings Majestie which was very pleasing to the King but now he must not The Doctor answers he must if it comes in his way said the Bishop you must not and further your Tables in the Quier stand as in an ale-house The Doctor replied they stood according to Law sayes the the Bishop there be Articles to controove said the Doctor the Register found it contrary saying Your Tables at Winchester stood as Altars Sir Robert Phillips THus you see how truth in the discoverie doth grow upon us And now you see how the introducing Ceremonies at Durham doth arise and now you see the greatest aspersion laid on his Majestie that ever I heard of and now I am confident the Bishop of Durham procured the Kings hand to the Pardons Chancellor of the Dutchie THis trencheth high to the person of the King and I am glad to hear it and shall be more glad to see it proved Sir Thomas Heale SAith he heard these words from Doctor Moores own mouth and asking if he would prove this in Parliament he said he would maintain it with his life Mr. Valentine SAith That this Bishop hath a Chaplain in Grantham that preached they were all damned that refused the Loan and that he hath made a great combustion in placing the Communion Table there The Speakers Letter is to go for Doctor Moore Munday 9. A Petition in complaint of the Post-Masters Patent of London which is referred to a Committee Mr. Speaker delivered from Mr. Attorney a Warrant in writing of his proceedings in Cosens business Mr. Iohn Elliot reported from the Committee for examination of the Merchants business that the Committee finding Sheriff Acton in prevarications and contradictions in his examinations which is conceived to be a contempt of this House desires he may be sent for to answer his contempt Mr. Godwin saith the Sheriff acknowledgeth his error and humbly desireth so much favour that he may once again be called before the Committee and if then he give not full contentment by his answer he will refer himself to the wisdome and justice of the House Mr. Walter secondeth this Motion so did Alderman Molson Secretarie Cook Chancellor of the Dutchie c. but his abuse being declared to be so great and so gross and that he had so many times given him to recollect himself and that he being so great an Officer of so great a Citie had had all the favour that he might be and yet rejected the same and carried himself in a very scornfull manner wherefore it is Ordered that he shall be sent for to the House as a Delinquent to Morrow morning Iones the Printer and his Councel are called in to argue the business of Mr. Mountagues Episcopal Confirmation First Quere Whether the exceptions be legal Secondly whether the Confirmation be good The last is the point now in hand to which the House enjoyned the Councel to speak The Councel proposed a Third Quere What will be the fruit or effect of it if in Law the Confirmation prove void In this the Councel said it will not extend to make him a Bishop upon the point of Election but upon the point of Confirmation onely which maketh him punishable if he execute any thing concerning the Bishoprick Sir Hen. Martin saith The exception making void the Confirmation doth in Law work also upon the Election Doctor Steward saith The point of setting to of the Advocates hand is but matter of Form in the Court no matter of Law Sir Henry Martin saith he will endeavour himself to give the House as full satisfaction and he will speak without relation to the Kings Right and Laws of the Realm The Proclamation by the Common Law should not be at Bow Church but at the Cathedral Church of the Diocess where the Bishop is to be elected and the Dean and Charter of that Diocess is to except and not every one that will The Argument is endless and to alter a course so long settled
I conceive it plain these Customers took the goods in their own right not in the Kings In this Priviledge is plainly broken wherein it is easily determined Mr. Banks In this case there is no interposing of the Kings Right and the King this Parliament hath declared as much That the Courts at Westminster do grant 12 days priviledge to any man to inform his Councel much more the Court of Parliament are to have their Priviledge The Kings Command cannot extend to authorize any man to break the Priviledges no more than it will warrant an entrie upon any mans Land without process of Law Mr. Soliciter If the King have no Right how can he make a Lease then this pretended interest of the Customers must needs be void and therefore the goods must not be taken on their own right but in the right of the King Mr. Selden If there were any right the pretended right were in the Subject First whether Priviledge in goods Secondly whether the right were in the Customers onely Thirdly whether priviledge against the King 1. If the Lords have no priviledge in Parliaments for their goods then have they no priviledge at all for they are priviledged in their persons out of Parliament 2. For the point of interest it is plain no kind of Covenant can alter the interest and questionless had the cause in the Exchequer appeared to the Barons as it doth to us they would never have proceeded as they did 3. If our goods may be seized into the Exchequer be it right or wrong we were then as good have nothing Sir Nath. Ritch 〈…〉 recorded the last Session and citeth other presidents in this House that a servant of a Member in Parliament ought to have priviledge in his goods Mr. Noy saith that these Commissioners had neither Commission nor Command to seize Therefore without doubt we may proceed safely to the other question That the priviledge is broken by the Customers without relation to any Commission or Command of the King Secretarie Cook saith It is in the Commission to seize but the Commission being read it is not found to be there Chancellor of the Dutchie saith Mr. Dawes mentioned that he seized these goods by virtue of a Commission and other Warrants remaining in the hands of Sir Iohn Elliot that therefore these Warrants may be seen whether there be no command to seize these goods Sir Nathaniel Ritch This days debate much joyeth me specially the motion made by Mr. Noy whereby it is plain we have a way open to go to this question without relation to the Kings Commission or Command and desire it in respect there appears nothing before us to incumber the question Chancellor of the Dutchie desires again these Warrants may be look into before we go to the question Mr. Kirton In respect this Honorable Gentleman presseth this so far that it may appear with what judgement this House hath proceeded Mr. Glanveil I consent these Warrants be sent for and read but withall if any thing arise that may produce any thing of ill consequence let it be considered from whence it doth come The Privie Councellers are contented with this Motion The Warrants being sent for and read it is plain there is no Warrant to seize Mr. Kirton If now there be any thing of doubt I desire those Honorable persons may make their objections Chancellor of the Dutchie I rejoyce when I can go to the Court able to justifie your proceedings I confess I see nothing now but that we may safely proceed to the Question Mr. Secretarie Cook saith as much Mr. Hackwell argueth against Priviledge in time of Prorogation Mr. Noy saith he had no doubt but that Priviledge was in force in time of Prorogation untill he heard this Argument of Prorogation of Mr. Hackwell and saith that he hath nothing from him yet that doth alter his opinion and citeth a cause wherein the Lords House hath this verie Prorogation adjudged the Priviledge Mr. Hackwell saith he is glad to hear it is so and he is now of the same opinion Decided by Question That Mr. Rolles ought to have Priviledge of Parliament for his goods seised 30 Octob. 5 Iac. and all sithence This Committee is adjourned untill Munday and the Customers to attend The Protestation of the COMMONS in Parliament on Munday 2. Mar. 1628. 1. WHosoever shall bring in an Innovation in Religion or by favour or countenance seek to extend or introduce Poperie or Arminianisme or other Opinion differing from the true and orthodox profession of our Church shall be reputed a Capital enemie to this Kingdom and Common-wealth 2. Whosoever shall counsel or advise the taking or leavying of the Subsedies of Tonage and Poundage not being granted by Parliament or shall be an Actor or an Instrument therein shall likewise be reputed an Innovator in the Government and a Capital enemie to the Kingdom and Common-wealth 3. If any Merchant or other person whatsoever shall voluntarily yield or pay the said Subsedie of Tonnage or Poundage not being granted by Parliament he shall likewise be reputed a Betrayer of the Liberties of England and an enemie to the same THE KINGS SPEECH in the House of PARLIAMENT Mar. 10. 1628. to Dissolve it My LORDS I Never came here upon so unpleasing occasion it being for the Dissolving of a PARLIAMENT therefore many may wonder why I did not rather choose to do this by my Commission it being the general Maxim of Kings to lay harsh commands by their Ministers themselves onely executing pleasing things But considering that Justice is as well in Commanding of Virtue as Punishing of Vice I thought it necessarie to come here to day to declare to you my Lords and all the world That it was onely the disobedient carriage of the Lower House that hath caused this Dissolution at this time and that you My Lords are so far from being causers of it that I have as much comfort in your Obedience manifested by all your carriage towards me as I have cause to distaste their proceedings Yet that I may be clearly understood I must needs say they do mistake me wondrously that think I lay this fault equally on all the Lower House for I know there are many there as dutifull Loyal Subjects as any are in the world I know that it was onely some Viâ—pers among them that did cast this mist of disobedience before their eyes although there were some there that could not be infected with this Contagion insomuch that some by their speaking which indeed was the general fault on the last day of the House did shew their obedience To conclude my Lords as those ill-affected persons must look for their reward so you that are here of the Higher House may justly claim from me that protection and favour that a good King bears to his Loyal and Faithfull Subjects and Nobilitie Now my Lords execute that which I Command you Lord KEEPER MY Lords and Gentlemen of the House of Commons the KINGS Majestie
speak confidently I did never see nor know by any Record that upon such a Retorn as this a man was bayled the King not first consulted with in such a Case as this The Commons House do not know what Letters and Commands we receive for these remain in our Court and were not viewed by them for the rest of the Matters presented by the House of Commons they were not in agitation before us whether the King may commit and how long he may detain a man committed therefore having answered so much as concerneth us I desire your Lordships good constructions of what hath been said Iudge IONES SAid he was here to deliver before us what judgement was given before them concerning the Habeas Corpus he answered no Judgement was given and the Matter of Fact was such as my brother delivered unto you yesterday These 4. Gentlemen were committed to the Fleet-Gate-House and Marshall of the Kings House-hold 4. Returns were made upon the Writs and every one of them had a Councellour appointed who had Coppies of the Returns A rule was granted their Councel heard and exception taken to the Return because it did not shew cause of their caption These were of no force in the opinion of the Judges the next exception was because no cause of their commitment was shewed which the Judges held to be all one in point of Law Then my Lords they alleadged many Presidents and Statutes of themselves which the Kings Attorney answered That Persons committed by the King or Councel were never bayled but his pleasure was first known We agreed at the Chamber of the Chief Justice that all the Statutes alleadged are in force but whether we should bayl them or no was the question therefore we remitted them quousque After which Mr. Attorney required a Judgement might be entered I commanded the Clark he should not suffer any such thing to be done because we would be better advised But some will say our Act is otherwise I answered no for we have done no more then we do upon ordinary Writ when we purpose to be better advised and that was onely an Interlocutorie order But my Lords put the case a Habeas Corpus should be granted for one that is committed by the House of Commons would they thinck you take it well he should be bayled at his first coming to the Court I thinck they would not and I thinck the King would have done so in this case now my Lords there is a Petition of Right and a Petition of Grace to be bayled is a matter of Grace therefore if a man be brought upon an Habeas Corpus and not bayled he cannot say the Court hath done him any wrong I have now served seven years Judge in this Court and my conscience beareth me witness that I have not wronged the same I have been thought sometimes too forward for the Liberty of the Subject I am my self Liber homo my Ancestors gave their voice with Magna Charta I enjoy that House still which they did I do not now mean to draw down Gods wrath upon my posterity and therefore I will neither advance the Kings prerogative nor lessen the Liberty of the Subject to the danger of either King or People this is my profession before God and your Lordships Iudge DODDERIDGE SAith it is no more fit for a Judge to decline to give an account of his doings then for a Christian of his Faith God knoweth I have endeavoured alwayes to keep a good conscience for a troubled one who can bear the Kingdom holds of none but God and Judgements do not pass privately in Chambers but publick in Court where every one may hear which causeth Judgement to be given with maturity Your Lordships have heard the particulers delivered by my brethren how that Councel being assigned to those 4. Gentlemen in the latter end of Michaelmass Term their Cause received hearing and upon consideration of the Statutes and Records we found some of them to be according to the good old Law of Magna Charta but we thought that they did not come so close to this Case as that bayl should be thereupon presently granted My Lords the Habeas Corpus consisteth of 3. parts the Writ the Return upon the Writ or schedule and the Entry or rule reciting the Habeas Corpus and the Return together with the opinion of the Court either a remittitur or traditur in ballium In this Case a remittitur was granted which we did that we might take better advisement upon the Case and upon the remittitur my Lords they might have had a new Writ the next day and I wish they had because it may be they had seen more and we had been eased of a great labour And my Lords when the Attorney upon the remittitur pressed an Entry we all straitly charged the Clark that he should make no other Entry then such as our Predecessors had usually made in like Cases for the difference my Lords betwixt remittitur and remittitur quousque I could never yet finde any I have now sat in this Court 15. years and I should know something surely if I had gone in a Mill so long dust would cleave to my cloaths I am old and have one foot in the grave therefore I will look to the better part as near as I can But omnia habere in memoria in nullo errare divinum potiùs est quam humanum THE LORD CHIEF IUSTICE SAith he shall not speak with confidence unless he might stand right in the opinion of the House and protested what he spake the day before was not said by him with any purpose to trench upon the Priviledges of this House but out of that respect which by his place he thought he owed to the King he said concerning the point he was to speak of that he would not trouble the Lords with things formerly repeated wherein he concurred with his brethren He said if it were true the King might not commit they had done wrong in not partly delivering for my Lords saith he these Statutes and good Laws being all in force we meant not to trench upon any of them most of them being Commentaries upon Magna Charta but I know not any Statute that goeth so far that the King may not commit Therefore justly we think we delivered the interpretation thereof to that purpose for my Lords Lex terrae is not to be found in this Statute they gave me no example neither was there any Cause shewed in the Return A President my Lords that hath run in a storm doth not much direct us in point of Law and Records are the best Testimonies These Presidents they brought being read we shewed them wherein they were mistaken if we have erred erramus cum Patribus and they can shew no President but that our Predecessors have done as we have done sometimes bayling sometimes remitting sometimes discharging Yet we do never bayl any committed by the King or his Councel