Assembly so that you are secure not onely from wilfull and pregnant errours but from doubt of sinister interpretation My Lord the King is as an Angel of God of a quick of a noble and just apprehension he straines not at gnats he will easily distinguish between a vapour and a fogg between a mist of â—rrour and a cloud of evill right he knowes if the heart be right Out of the abundance of the heart the mouth speakes You proceed to a survey of the lustre of this great and glorious Assemblie and in that as in a curious Crystall you observe the true happinesse which we all here enjoy You have distributed and divided aright and whosoever sees it otherwise hath an evill eye or a false glasse We have enjoyed it long through the happy meanes of gracious and good Princes and the way to enjoy it still is to know and heartily to acknowledge it and that God hath not done so to any other Nation It is a prime cause or meanes of this our happinesse You mention the forme of Government under which we live a Monarchie and the best of Monarchies where Sovereignty is hereditarie no Inter-Regnum nor competition for a Crown Descent and Succession are all one The Spirit of God by the mouth of the wisest of Kings long since proclaimed this happinesse Blessed art thou O Land where thy King is the son of Nobles The frames of other States are subject some to inconstant Levitie some to Faction some to Emulation and Ambition and all to manifold Distempers in which the People go to wrack The Monarchie is most naturall and in it Unity is the best cement of all government principally in respect of the unity of the Head which commands the rest And therefore other States when they have tryed a while doe for the most part resolve into this as into the best for Peace for Strength and for Continuance But formes of other governments though never so exact move not of themselves but are moved of their governours And therefore our Monarchie as you have truly said this glorious Assemblie the lively image and representation of our Monarchie is made happy and perfect by the Royall Presence that sits here in his highest Royal Throne the Throne of the Law-giver glorious in it selfe glorious by those happy Lawes and Oracles which have issued from it and most glorious by them that sit on it his Majestie and his Royall Progenitours incomparable Kings that with so much honour have swayed the Sceptre of this Kingdome so many successions of Ages In the next place after the Throne of Majestie you look into the Chaire of Doctrine the reverend Prelates and upon the state of Religion their proper charge This is the blessing of all blessings the priviledge and assurance that secures us of all the rest that as our Religion is most sincere and orthodoxe so our Clergie is eminent both for purity of Doctrine and integritie of Life our Priests are clothed with righteousnesse and their lips preserve knowledge and therefore God's Saints may and doe sing with joyfulnesse I must joyn with you in attributing this transcendent blessing to us as in the first place to God's goodnesse so in the second to his Majestie 's piety who following the steps of his ever-blessed Father is carefull that all the Lamps of the Church may be furnished with Oyle and especially those which are set on golden Candle-sticks with the purest and best oyle The Schools also and nurceries of Learning never so replenished especially with Divinity as in this last Age as they all shew his Majestie 's Piety so are they infallible Arguments of his Constancy The triall which you call the fierie triall undergone by his Majestie in the place of danger and again the power and policie of Rome and Spaine hath approved his resolution inimitable and his own remarkable example in his closet and his chamber his strict over-sight of and command to his Houshold servants and his charge to his Bishops and Judges his Edicts his Proclamations and Commissions and the like for the execution of the Lawes and his general care to preserve the fountain pure both from Schisme and Superstition are faire fruits and effects of a pious and zealous resolution From the chaire of Doctrine you turn to the state of Honour unto the Nobles and Barons of England These are Robur belli who for the service of the King and Kingdome are to make good with their Swords what the Church-men must hallow and blesse by their Prayers And therefore as the Prelates are the great Lights of the Church so the Nobility are the Starres of the State and you know that the starres have fought and fought powerfully against the enemies of God From the state of Honour you come to the state of Justice and to the twelve Lyons under Solomon's Throne the Iudges and Sages of the Law and as their peculiar charge intrusted to them by our Sovereigne the Lawes of the Kingdome Lawes undoubtedly fitted to the constitution of this people for Leges Angliae and Consuetudines Angliae are Synonyma and Confuetudo est alter a natura so as besides the justnesse and rightnesse of the Lawes they are become naturall to our people and that is one of the powerfullest meanes which begetteth obedience and such Lawes in the mouthes of learned and upright Judges are like waters in a pure chanel which the fairer it runs the clearer they run and produce that whereof Solomon speaks Prov. 29. 2. When the righteous are in authority the People rejoyce From the Law you passe to the Knights Citizens and Burgesses and the third Estate who represent the Commons of England in whom the Scripture is verified In the multitude of People is the Kings honour and therefore you may be sure that distance of place and order breeds no distance in affection for wise Kings everlay their honour next to their hearts Kings are Pastores populi and the Shepherds care is nothing lesse to the furthest then to the next part of his Flock and it is asmuch towards the least of his Lambs as towards the greatest Cattel And as in the Natural bodie no member is so remote but it is still within the care of the head so in this great Politick bodie of the Kingdome no ranck or order of People so low is at such distance from the Throne but it dayly feeles the influence and benefit of the Kings care and protection And to say the truth in a well-governed Kingdome the superiour rancks of Nobles of Judges and of Magistrates are not ordained for themselves but as conduits for the Kings justice protection and goodnesse to the lower rancks of his People And as the People are so its just cause they should be constant to the Poles of Love and Loyalty And thus having perused both Houses by divided parts joyn them together and in that juncture you believe truly and materially that the greatest denyal of their joynt requests is The King
what the cause is then in any other The fourth of these is in the time of Queen Mary It is Pasche 2. and 3. Phil. and Mar. Rot. 58. Overtons case Richard Overton was returned upon a habeas Corpus directed to the Sheriffs of London to have been committed to them and detained per mandatum prenobilium virâ—râ—m honorabilis Concilii Dominorum Regis Regina Qui committitur Marescallo c. immediate traditur in ballium In answer to this President or by way of objection against the force of it hath been said that this Overton stood at that time indicted of Treason It is true he was so indeed but that appeares in another Roll that hath no reference to the Return as the Return hath no reference to that Roll. Yet they that object this against the force of this President say That because he was indicted of Treason therefore though he was committed by the command of the Lords of the Councell without cause shewed yet he was bailable for the Treason and upon that was here bailed Then which Objection nothing can be or is more contrarie to Law or common Reason It is most contrarie to Law for that cleerly every Return is to be adjudged by the Court out of the body of the Writ it self not by any other collaterall or forrain Record whatsoever Therefore the matter of Indictment here cannot in Law be cause of the bailing of the Prisoner And it is so adverse to all common Reason that if the objection be admitted it must of necessity follow that whosoever shall be committed by the King or the Privie Councell without cause shewed and be not indicted of Treason or some other offence may not be inlarged by reason of the supposition of matter of State But that whosoever is so committed and withall stands so indicted though in another Record may be inlarged whatsoever the matter of State be for which he was committed The absurdity of which assertion needs not a word for further confutation as if any of the Gent. in the last Judgement ought to have been the sooner delivered if he had been also indicted of Treason Certainly if so Traitours and Fellons had the highest priviledges of personall Liberty and that above all other Subjects of the Kingdome The first of this first kind is of Queen Marie's time also It is Pasche 4. 5. P. M. Rot. 45. the Case of Edward Newport He was brought into the Kings Bench by habeas Corpus out of the Tower of London cum causa viz. Quod commissus fuit per mandatum Conciliorum Dominae Reginae Qui committitur Marr. c. et immediate traditur in ballium To this the like kind of answer hath been made as in that other Case of Overton next before cited They say that in another Roll of another Terme of the same year it appears he was in question for suspicion of Coyning And it is true he was so But the Return and this Commitment mentioned in it have no reference to any such offence nor hath the Bailment of him relation to any thing but to the absolute Commitment by the Privie Councell So that the answer to the like objection made against Overton's Case satisfies this also The sixth of these is of Q. Elizabeth's dayes It is Mich. 9. Eliz Rot. 35. the Case of Thomas Lawrence This Lawrence came in by habeas Corpus returned by the Sheriffs of London to be detained in prison per mandatum Concilii Dominae Reginae Qui committitur Marescallo c. super hoc traditur in ballium An Objection hath been invented against this also It hath been said that this man was pardoned and indeed it appeares so in the margent of the Roll where the word pardonatur is entred But cleerly his enlargement by Baile was upon the Bodie of the Return only unto which that Note of Pardon in the Margent of the Roll hath no relation at all And can any man think that a man pardoned for what offence soever it be might not as well be committed for some Arcanum or matter of State as one that is pardoned The seventh of these is in the same yeare and of Easter Terme following It is Pasche 9. Eliz. Rot. 68. Robert Constable's Case He was brought by habeas Corpus out of the Tower and in the Return it appeared he was committed per mandatum privati Concilii dict Dominae Reginae Qui committitur Marr. postea isto eodem Termino traditur in ballium The like Objection hath been made to this as to that before of Lawrence but the self same Answer cleerly satisfies for both of them The eighth is of the same Queens time in Pasche 20. Eliz. Rot. 72. Iohn Browning's Case This Browning came by habeas Corpus out of the Tower whether he had been committed was returned to have been committed per privatum Concilium Dominae Reginae Qui committitur Maresc Et postea isto eodem Termino traditur in ballium To this it hath been said That it was done at the chief Justice Wraye's Chamber and not in Court and thus the authoritie of the President hath been lessened and sleighted If it had been at his Chamber it would have proved at least thus much That S r Christopher Wraye then chief Justice of the King's Bench being a grave learned and upright Judge knowing the Law to be so did baile this Browning and so enlarge him And even so farre were the President of value enough But it is plain that though the habeas Corpus were returnable indeed as it appeares in the Record it self at his Chamber in Serjeant's Inne yet he only committed him to the Kings Bench presently and referred the consideration of enlarging him to the Court who afterwards did it For the Record saith Et postea isto eodem Termino traditur in ballium which cannot be intended of an enlargement at the chief Justice his Chamber The ninth of this first kind is in Hill 40. Eliz. Rot. 62. Edward Harecourts Case He was imprisoned in the Gate-house and that per Dominos de private Concilio Dominae Reginae pro certis causis eos moventibus et ei ignotis and upon his habeas Corpus was returned to be therefore only detained Qui committitur Marr. c. Et postea isto eodem Termino traditur in ballium To this never any colour of answer hath been yet offered The tenth is Catesbies Case in the Vacation after Hillary Terme 43. E. Rot. 37. Robert Castesby was committed to the Fleet per warrant diversorum prenobilium virorum de private Concilio Dominae Reginae He was brought before Justice Fennor one of the Judges of the Kings Bench by habeas Corpus at Winchester House in Southwark commissus fuit Marr. per praesat Edw. Fennor statim traditur in ballium The eleventh is Richard Beckwith's Case which was in Hillary 12. of King Iames R. 153. He was returned upon his habeas Corpus to have
be determined by any legal direction for it must needs be an hard case of contention when the Conquerour must sit down with irreparable losses as in this Case If the Subject prevails he gains Liberty but looseth the benefit of that State-Government by which a Monarchie may soon become an Anarchie or if the State prevails it gives absolute Soveraignty but looseth Subjects not their subjection for obedience we must yield though nothing be left us but prayers and tears but yet looseth the best part of them which is their affections whereby Soveraignty is established and the Crown formerly fixt on his Royal head between two such extreams there is not way to moderate but to finde a medium for the accommodation of the difference which is not for me to prescribe but onely to move your Lordships to whom I submit After M r. Serjeant his speech ended my Lord President said thus to the Gentlemen of the House of Commons That though at this free conference Liberty was given by the Lords to the Kings Councel to speak what they thought fit for his Majesty Yet M r. Serjeant Ashley had no Authority or direction from them to speak in that manner he hath done M r. NOYE his Argument the 16. of April 1628. HE offered an answer to the inconveniences presented by Mr. Attorney which were 4. in Number First where it was objected that it was inconvenent to express the cause for fear of divulging Arcana â—mperii for hereby all may be discovered and abundance of Traitors never brought to Justice To this that Learned Man answered That the Judges by the intention of the Law are the Kings Councel and the secrets may safely be committed to all or some of them who might advise whether they will bayl him and here is no danger to King or subjects for their Oath will not permit them to reveal the secrets of the King nor yet to detain the Subjects long if by Law he be to be bayled Secondly for that Objection of the Children of Odonell he laid this for a ground that the King can do no wrong but in Cases of extream necessity we must yield sometimes for the preservation of the whole State ubi unius damnum utilitate publica rependitus he said there was no trust in the Children of Traitours no wrong done if they did tabe facere or marcesere in Carcere It is the same Case of necessity as when to avoid the burning of a Town we are forced to pull down an honnest mans House or to compell a man to dwell by the Sea-side for defence or fortitude Yet the King cannot do wrong for potentia juris est non injura Ergo the Act of the King though to the wrong of another is by the Law made no wrong as if he commanded to be kept in Prison yet he is responsal for his wrong he quoted a book 42. 6. Ass Port. Thirdly the instance made of Westminster First he said there was a great difference between those 3. Mainprize Bail and Replevin The Statute saith a man cannot be repleiued Ergo not bayled non sequitur Maniprize under pain Bayl body for body no pain ever in Court to be declared Replevin neither by surety not bayl of Replevin never in Court the Statute saith a man cannot be Repleiued Ergo not bayled non sequitur Fourthly where it is said that bayl is ex gratia he answers that if the Prisoner comes to Habeas Corpus then it is not ex gratia Yet the Court may advise but mark the words ad subjiciendum recipiendum prout Curia consideraverit now it is impossible the Judges should do so if no cause be expressed for if 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 Gentleman 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 sufficients enumer atiâ— 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 in 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 â—o many strangers it is but damnum â—ine 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 HABE AS 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 forseiting 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 Honse 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 admire of no appeal The President said the Judges did not do this by way of appeal but as the most common way for them this being a matter concerning the Kings prerogative Lord Say saith if they will not declare themselves we must take into consideration the point of our priviledge The Duke saith this was not done by the Judges as fearing to answer but of respect to the King And now his brother was come with answer from the King that they might proceed Order was taken that this passage should not be entered into the Journal Book and so Judge WHITLOCK spake MY Lords we are by your appointment here ready to clear any aspersion of the House of Commons in their late presentment upon the Kings-bench that the Subject was wounded in this Judgement there lately given If such a thing were my Lords your Lordships not they have the power to question and Judge the same But my Lords I say there was no Judgement given whereby either the prerogative might be inlarged or the eight of the subject trenched upon It is true my Lords in Michaelmas Term last fower Gentlemen petitioned for a Habeas Corpus which they obtained and Councel was assigned unto them the return was per spialem mandatum Domini Regis which likewise was made known unto us under the hands of eighteen privy Councellours Now my Lords if we had delivered them presently upon this it must have been because the King did not shew cause wherein we should have judged the King had done wrong and this is beyond our knowledge for he might have committed them for other matters then we could have imagined But they might say thus they might have been kept in Prison all their dayes I answer no but we did remit them that we might better advise of the matter and they the next day might have had a new Writ if they had pleased but they say we ought not to have denied bayl I answer if we had done so it must needs have reflected upon the King that he had unjustly imprisoned them and it appears in Dyer 2. Eliz. that divers Gentlemen being committed and requireing Habeas Corpus some were bayled others remitted whereby it appears much is left to the discretion of the Judges For that which troubleth so much remittitur quousque this my Lords was onely as I said before to take time what to do and whereas they will have a difference betwixt remittitur and remittitur quousque my Lords I confess I can finde none but these are new inventions to trouble old Records And herein my Lords we have dealt with knowledge and understanding for had we given a Judgement the party must thereupon have rested every Judgement must come to an issue in matter in fact or demur in point of Law here is neither therefore no Judgement For endeavouring to have a Judgement entered it is true Mr. Attorney pressed the same for his Masters service but we being sworn to do right betwixt the King and his subjects commanded the Clark to make no entry but according to the old form and the rule was given by the Chief Justice alone I have spent my time in this Court and I speak confidently I did never see nor know by any Record that upon such a Retorn as this a man was bayled the King not first consulted with in such a Case as this The Commons House do not know what Letters and Commands we receive for these remain in our Court and were not viewed by them for the rest of the Matters presented by the House of Commons they were not in agitation before us whether the King may commit and how long he may detain a man committed therefore having answered so much as concerneth us I desire your Lordships good constructions of what hath been said Iudge IONES SAid he was here to deliver before us what judgement was given before them concerning the Habeas Corpus he answered no Judgement was given and the Matter of Fact was such as my brother delivered unto you yesterday These 4. Gentlemen were committed to the Flect-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
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 Mr. Serjeant Ashley the other day told your Lordships of the Embleme of a King but by his leave made wrong use of it For a King bears in one hand the Globe and in the other the golden Scepter the tipes of Soveraignty and mercie but the Sword of Justice is ever carried before him by a Minister of Justice which shews Subjects may have their remedies for unjustice done and appeals done to higher powers for the Laws of England are so favourable to their Princes as they can do no unjustice Therefore I will conclude as all disputes I hold do Magna est veritas praevalebit so I make no doubt we living under so good a Prince as we do when this is represented unto him he will answer us Magna est Carta praevalebit The ARCH-BISHOPS of CANTERBURIES Speech at the Conference of both Houses 25. April 1628. GEntlemen of the House of Commons the service of the King and safety of the Kingdom do call on us my Lords to give all convenient expedition to dispatch some of those great and weighty businesses for the better effecting whereof my Lords have thought fit to let you know that they do in general agree with you and doubt not but you will agree with us to the best of your power to maintain and support the fundamental Laws of the Kingdom and the fundamental Liberties of the Subject for the particulers which may hereafter fall in debate they have given me in charge to let you know that what hath been presented by you to their Lordships they have laid nothing of it by they are not out of love with any thing you have tendered to them they have voted nothing neither are they in love with any thing proceeding from themselves for that which we shall say and propose unto you is out of an intendment to invite you to a mutual and free conference that you with confidence may come to us and we with confidence may speak to you so that we may come to a conclusion of those things which we both unanimously desire we have resolved of nothing defined or determined nothing but desire to take you with us praying help of you as you have done of us My Lords have thought upon some Propositions which they have ordered to be read here and then left with you in writing that if it seem good to you we may uniformly concur for the substance and if you differ that you may be pleased to put out or add or alter or diminish as you shall think fit that so we the better come to the end that we do both so desireously embrace Then the 5. Propositions were read by the Lord BISHOP of NORVVHICH The 5. Propositions 25. April 1628. 1. THat his Majesty would be pleased gratiously to declare that the good old Law called Magna Charta and the 6. Statutes conceived to be Declarations or Explanations of that Law do stand still in Force to all intents and purposes 2. That his Majesty would be pleased gratiously to declare that according to Magna Charta and the Statutes aforesaid as also according to the most ancient Customes and Laws of this Land every free Subject of this Realm hath a fundamental propriety in his good and a fundamental Liberty of his Person 3. That his Majesty would be pleased gratiously to declare that it is his Royal pleasure to ratifie and confirm unto all and every his faithfull and Loyal Subjects all their antient several just Liberties Priviledges and Rights in as ample and beneficial manner to all intents and purposes as their Ancestors did enjoy the same
Crown and People neither over-shadowing the one or oppressing the other Before your Throne like the twelve Lyons under Solomon's Throne sit the Lights of Justice your grave Iudges and Sages of the Law learned and just as many Ages have known and learning justice by your example Our Lawes as excellent as they are I am sure no humane Lawes excell them nor could so well suite with the constitution of this People were they in the power of corrupt or ignorant men I know not which were worse for one will perhaps oftner erre then the other bribe Justice could never keep her right chanel nor runne cleare as in your Majestie 's reigne it ever hath I must not forget the other Lights the Knights Citizens and Burgesses the Representative of their Estate who although they move lower and at more distance from your royall Person yet I am confident will ever be found constant to the Poles of Love and Loyaltie 'T is a gracious Favour of your Majestie and our former Kings I have often thought on that when both these Houses are humble suitors for any thing they are never denyed Le Roy s' aviserà The King will advise of it is the greatest denyall And I assure my self your Majestie shall finde all your Subjects so full of dutie to your Crown and of true and loyall affection to your royall Person that you shall never have cause to think your gracious Favours ill bestowed on them The Union of Hearts Sir is a greatnesse beyond that of the Kingdome to which you are Heire Et penitus toto divisos orbe Britannos it is a Name of advantage to this Island if the Division be not amongst our selves which the God of Unitie for his mercies sake forbid and so knit our Hearts in love one to another and all of us in duty and loyalty to your most excellent Majestie that this renowned Island perish not by our Distractions but may ever flourish and be like Ierusalem the Citie of God where his Name may â—e for ever honoured Great and glorious have been the Actions of your royal Predecessours yet greater remaine for your Majestie and most of theirs attend you for their perfection The first Christian King of Europe the first that abated the swelling pride of Rome by banishing his usurped power and God's true Vice-gerent the first that established the true Religion now profest were all Kings of England and the last a young one Queen Elizabeth was a woman yet Spaine hath cause to remember her the Protestants of France and the Low-Countries will never forget her And were Henry the Great alive he would say That in requitall of the love of this Kingdome shewed him he hath sent us one of his owne Loynes your royall Consort our most gracious Queen to propagate these blessings to us and our posteritie for ever Your royall Father of ever blessed and famous memorie had a Reigne like Solomon's for Religion no man knew more a lustre or advantage to him this Age shall deliver it to the next and all Ages shall see it in his Kingly Workes But while under his glorious Reigne we abode in peace and plenty our hands had forgot to warre and our fingers to fight till at last by your Princely mediation upon the humble suite of both these Houses the two Treaties were dissolved and a foundation laid for your Majestie to restore us to our antient and Military honour which I doubt not will quickly be Eritis sicut Dii was the Serpent's Counsell and ruined Mankinde nor is it fit for private men much lesse for me to search into the Counsells or Actions of Kings Onely Sir give me leave from an heart full of zeale to your glorie and greatnesse to say to your Majestie the Times require you Religion calls upon you to goe on with that Kingly Courage you have begunne till the state of Christendome be settled in the right Balance again We see how the Eagle spreads his wings in Germany reaching with his talons as farre as the Sound and Baltick sea Denmark and Sweden in danger of utter ruine by seizing the Electorates the choice of the Empire invested in a manner solely in the House of Austria Our Religion in France and every where never so neare a period And we know who it is for whom all this works he of whom the boast is made Allà qui Monarâ—ui nasciendo d'el monendo who by the ruine of us and our Religion will make a new Zodiack and draw an Ecliptick line through the East and West Indies But he that sits on high will in his good time laugh them to scorne and as that wise Woman said to King David God will make to my Lord the King a sure house if my Lord shall continue to fight the battels of Iehovah and let all England say Amen I have presumed too farre upon your royall Patience and therefore I will conclude with a few words for them that sent me who are humble suitours to your excellent Majestie First for our better attending the publick and important services that our selves and our necessary Attendants may be free both in our persons and goods from all arrests and troubles according to our ancient priviledge and immunities Next that since that in all great Councells where difference of opinion is truth is best discovered by free debates your Majestie according to our like ancient use and priviledge will be graciously pleased to allow us liberty and freedome of speech and I assure my self we shall not passe the latitude of duty and discretion That upon all occurrences of moment fit for resort to your owne person your Majestie upon humble suit at your best leisure will vouchsafe us accesse to your royall person And lastly that all our proceedings being lodged in your royall heart with belief of our zeal and loyalty we may reap the fruits of it by your Majestie 's gracious and favourable interpretation One word more I humbly begg for my self That though it be the beginning of a Parliament I may now and ever enjoy your Majestie 's most gracious and generall free Pardon The Lord Keeper Coventry's second Reply M r. Speaker HIs Majestie with no lesse content then attention hath heard your learned Discourse he observes your beginning with his gracious incouragement and advice not forsaking your humble modestie but adding to it thankfulnesse alacrity and joy of heart a just and right temper He observes you derive these aright first from the Throne in heaven he lookes thither with you and joynes in prayer that both you and all this Assemblie by that Divine hand and power be moulded and procured for the honour safety and good of the Church and Kingdome Next you apply your self to the Throne on earth his Majestie doth graciously accept your protestations of the truth of your heart the fulnesse of your zeale and duty to his Majestie and the Publick he believes it and that not in you alone but in all this
to better Judgements S r. Thomas VVentworth's speech March 22. 1627. MAy this dayes resolution be as happy as I conceive the Proposition which now moves me to rise to be seasonable and necessary for which we shall either look upon the King or his people It did never more behove this great Physician the Parliament to affect a true consent amongst the parts then now This debate carries with it a double aspect towards the Sovereigne towards the Subject though both be innocent yet both are injured both to be cured In the representation of Injuries I shall crave your attention in the Cure I shall beseech your equall cares and better judgements Surely in the greatest humility I speak it these illegall wayes are punishments and marks of indignation the raising of Levies strengthened by Commission with unheard of instructions the billetting of Souldiers by the Lieutenants and Deputy-lieutenants have been as if they could have perswaded Christian Princes nay worlds the right of Empire had been to take away by strong hand and they have endeavoured as farre as was possible for them to do it This hath not been done by the King under the pleasing shade of whose Crown I hope we shall ever gather the fruits of Justice but by Projectours They have pretended the Prerogative of the King beyond the just proportion which makes the sweet harmony of the whole They have rent from us the light of our eyes enforced a company of guests worse then the Ordinaries of France vitiated our wives and daughters before our faces brought the Crown to greater want then ever by anticipating the revenew and can the Shepherd be thus smitten and the Sheep not scattered They have introduced a Privie Councel ravishing at once the sphears of all ancient government imprisoning us without bank or bond They have taken from us what shall I say indeed what have they left us all means of supplying the King and ingratiating our selves with him taken up the roots of all Propriety which if it be not seasonably set into the ground by his Majestie 's own hand we shall have instead of Beauty Baldnesse To the making of them whole I shall apply my self and propound a remedy to all these diseases By one and the same thing hath King and people been hurt and by the same must they be cured by vindicating what new things no our ancient sober and vitall Liberties by reinforcing the ancient Laws made by our Auncestours by setting such a Character on them as no licencious spirit shall dare to enter upon them And shall we think this is a way to break a Parliament no our desires are modest and just I speak truly both for the interest of King and people If we enjoy not these it will be impossible to relieve him therefore let us never fear that they shall not be accepted by his Goodnesse Therefore I shall descend to my Motion consisting of four parts two of which have relation to our Persons two to the propriety of our Goods For our Persons the freedome of them first from imprisonment secondly from imployment abroad contrary to the ancient Customes For our Goods that no levies may be made but by Parliament secondly no billetting of souldiers It is most necessary that these be resolved that the Subject may be secured in both For the manner in the second place it will be fit to determine it by a grand Committee The Speech and Argument of M r. Creswell of Lincolne's Inne one of the Members of the Commons House of Parliament concerning the Subjects grievance by the late Imprisonment of their persons without any declaration of the Cause I Stand up to speak somewhat concerning the point of the Subjects grievance by imprisonment of their persons without any declaration of the cause contrary unto and in derogation of the fundamentall Laws and Liberties of this Kingdome I think I am one of the puisnes of our profession which are of the Members of this House but howsoever sure I am that in respect of my own inabilities I am the puisne of all the whole House therefore according to the usuall course of Students in our profession I as the puisne speak first in time because I can speak least in matter In pursuance of which course I shall rather put the case then argue it and therefore I shall humbly desire first of all of this honourable House in generall that the goodnesse of the cause may receive no prejudice by the weaknesse of my Argument and next of all of my Masters here of the same profession in particular that they by their learned judgements will supply the great defects I shall discover by declaring of my unlearned opinion Before I speak of the Question give me leave as an entrance thereunto to speak first of the Occasion You shall know Iustice is the life and the heart-bloud of the Common-wealth and if the Common-wealth bleed in the Master-vein all the Balm in Gilead is but in vain to preserve this our body of Policy from ruine and destruction Justice is both Columna Corona reipubâ—icae she is both the Column and the Pillar the Crown and the glorie of the Common-wealth This is made good in Scripture by the judgement of Solomon the wisest King that ever reigned on earth For first she is the Pillar for he saith that by Justice the Throne shall be established Secondly she is the Crown for he saith that by Justice a Nation is exalted Our Lawes which are the rules of this Justice they are the ne plus ultra to both the King and the Subject and as they are the Hercules Pillar so are they the pillar to every Hercules to every Prince which he must not passe Give me leave to resemble her to Nebuchadnezzars tree for she is so great that she doth shade not onely the Pallace of the King and the house of the Nobles but doth also shelter the Cottage of the poorest beggar Wherefore if either now the blasts of indignation or the unresistable violatour of lawes Necessitie hath so bruised any of the branches of this Tree that either our persons or goods or possessions have not the same shelter as before yet let us not therefore neglect the Root of this great Tree but rather with all our possible endeavour and unfeigned dutie both apply fresh and fertile mould unto it and also water it even with our own teares that so these bruised Branches may be recovered and the whole Tree again prosper flourish For this I have learned from an ancient Father of the Church that though preces Regum sunt armatae yet arma subditorum are but only preces et lachrymâ— I know well that Cor Regis inscrutabile and that Kings although they are but men before God yet are they Gods before men And therefore to my gratious and dread Soveraigne whose virtues are true qualities ingenerate both in his judgement and nature let my arm be cut off nay let my soul not live
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 Râ—cusants 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 apparentâ—â—â—y 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 aâ—d 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 give speedy command for the present putting in practice those Laws that prohibite all Popish Recusants to come to the Court or within ten miles of the City of London as also those Law that confine them to the distance of five miles from their dwelling houses and that such by-past licenses not warranted by law as have been granted unto them for their repair to the city of London may be discharged and annulled 4. That whereas it is more then probably conceived that infinite summes of money have within these two or three yeares last past been exacted out of the Recusants within the Kingdome by colour of Composition and small proportion of the same returned into your Majesties Coffers not onely to the suddain inriching of private persons but also to the imboldning of the Romish Recusants to entertain Massing Priests into their private houses and to exercise all the mimick Rites of their grosse Superstition without fear of controll amounting as by their daily practice and ostentation we may conceive to the nature of a concealed Toleration your Majesty would be graciously pleased to receive this particular more nearly into your Princely wisdome and consideration to dissolve this Mystery of Iniquity patch't up of colourable Licenses Contracts or Preconveyances being but masks on the one part of fraud to deceive your Majesty and stales on the other side for private men to accomplish their corrupt ends 5. That as the persons of Ambassadours from forraigne Princes their houses be free for exercise of their own Religion so their houses may not be made free Chappell 's and Sanctuaries for your Majesties Subjects Popishly affected to heare Masse and to participate in all other Rites and Ceremonies of that Superstition to the great offence of almighty God and scandall of your Majesties people loyally and religiously affected That either the concourâ—e of Recusants to such places may be restrained or at least such a vigilant watch set upon them at their returne from those places as they may be apprehended and severely proceeded withall ut qui palam in luce peccant in luce puniantur 6. That no place of authority or command within any the Counties of this your Majesties Kingdome or in any ships of your Majesties or which shall be imployed in your service be committed to Popish Recusants or to Non-communicants by the space of a year past or to any such persons as according to direction of former Acts of State are justly to be suspected as the place and authority of Lords Lieutenants Deputy Lieutenants Justices of Peace of Captains or other Officers or Ministers mentioned in the Statute made in the third year of the reign of your Father of blessed memory and that such as by connivance have crept into such places may by your Majesties royall Command be discharged of the same 7. That all your Majesties Justices Judges and Ministers of Justice unto whose care and trust Execution which is the life of your Majesties Laws is committed may by your Majesties Proclamation not only be commanded to put in speedy execution those Laws that stand in force against Jesuits Priests Seminaries and Popish Recusants but that your Majesty would be further pleased to command the said Judges and Justices of Assize to give a true and strict accompt of their proceedings at their return out of their Circuits to the Lord Keeper and by the Lord Keeper to be presented to your Majesty 8 And for a fair and clear eradication of all Popery for the future and for the breeding and nursing up of an holy generation and a peculiar people sanctified to the true worship of almighty God That untill a provisionall Law may be made for the trayning and educating of the Children of Popish Recusants in the grounds and principles of our holy Religion which we conceive will be of more power and force to unite your people unto your Majesty in fastnesse of Love Religion and loyall Obedience then all pecuniary mulcts and penalties that can possibly be devised your Majesty will be pleased to take it into your Princely care and consideration These our humble Petitions proceeding from
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 the Commons were in force and that Magna Charta did extend most properly to the King But he said First that some of them are in generall words and therefore conclude nothing but are to be expounded by the Presidents and others that be more particular are applyed to the suggestions of Subjects and not to the Kings Command simplie of it self Hereunto was answered That the Statutes were as direct as could be which appeareth by the reading of them and that though some of them speak of suggestions of the Subject yet others do not and those that do are as effectuall for that they are in equall reason a commitment by Command of the King being of as great force when it moveth by a suggestion from a Subject as when the King takes notice of the cause himself the rather for that Kings seldome intermeddle with matters of this nature but by information from some of their Subjects Secondly M r Attorney objected that per legem terrae in Magna Charta which is the foundation of this Question cannot be understood for processe of the Law and originall Writs for that in all Criminall proceedings no originall Writ is used at all but every Constable may arrest either for fellony or for breach of the peace or to prevent a breach of the peace without processe or originall Writ and it were hard the King should not have the power of a Constable the Statutes cited by the Commons make processe of the Law and Writ originall to be all one The answer of the Commons to this Objection was That they do not intend originall Writs only by the Law of the Land but all other legall processe which comprehends the whole proceedings of Law upon Cause other then the triall by Jurie Iudicium parium unto which it is opposed Thus much is imported ex vi termini out of the word processe and by the true acceptation thereof in the Statutes which have been urged by the Commons to maintain their Declaration and most especially in the Statute 25. E. 3. cap. 4. where it appeareth that a man ought to be brought into answer by the course of the Law having former mention made of processe made by originall Writ And in 28. E. 3. cap. 3. by the course of the Law is rendered by due processe of the Law and 36. E. 3. Rot. Parl. num 20. the Petition of the Commons saith That no man ought to be imprisoned by speciall Command without Indictment or other due processe to be made by the Law 37. E. 3. cap. 18. calleth the same thing Processe of the Law 42. E. 3. cap. 3. stileth it by due processe and Writ originall where the conjunctive must be taken for the disjunctive which change is ordinary in the exposition of the Statutes and Deeds to avoid inconvenience to make it stand with the rest and with reason And it may be collected that by the Law of the Land in Magna Charta by the Course of the Law in 25. E. 3. by due processe of the Law in 28. E. 3. other due processe to be made by the Law in 36. E. 3. processe of the Law 37. E. 3. and by due processe and originall Writ in 42. E. 3. are meant one and the same thing the latter of these Statutes referring alwayes to the former and that all of them import any due and regular proceeding of Law upon a Cause other then the triall by Jury And this doth appeare in Coke 10. 74. in the case of the Marshalsey and Coke 11. 99. Iames Bagg's case where it is understood of giving Jurisdiction by Charter or prescription which is the ground of a proceeding by course of Law and in Selden's Notes on Fortescue fol. 29. where it is expounded for Law wager which is likewise a triall at Law by the oath of the partie differing from that by Jurie And it doth truly comprehend these and all other regular proceedings in Law upon Cause which gives authoritie to the Constable to arrest upon Cause And if this should not be the true exposition of these
per speciale mandatum Domini Regis ideo predicutus Johannes remittitur prefato 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 contrary to that which hath been pretended and enough for the maintenance of this ancient and fundamentall point of Liberty of the Person to be regained by habeas Corpus when any man is imprisoned And I the rather thought fit now to read it to your Lordships that it might be at large heard because in the great Judgement in the Kings Bench though it were cited at the Barre as against this point of personall Libertie as also at the Bench yet though every thing else of Record that was used was at large read openly this was not read either at Barre or Bench. For indeed if it had every hearer would easily have known the force of it to have been indeed contrary to the Judgement My Lords having thus gone through the Charge committed to me by the House of Commons and having thus mentioned to your Lordships and opened the many Presidents of Record and that draught of the Judgement in the like Case as also the Resolution I shall now as I had leave and direction given me least your Lordships should be put to too much trouble and expense of time in the finding or getting Copies at large of these things which I have cited offer also to your Lordships authentick Copies of them all and so leave them and whatsoever else I have said to your Lordships further consideration The whole Copies of the Presidents of Record mentioned in one of the Arguments made at the first Conference with the Lords touching the Liberty of the Person of every Free-man INter Recorda Domini Regis Caroli in Thesaurario Receptus Scaccarii sui sub custodia Dom. Thesaurarii Camerarii ibidem remanentia viz. Placita coram Domino Rege apud Westmonasterium de Termino Paschae anno Regis E. 3. post conquestum Angliae 15. inter alia sic continetur ut sequitur Adhuc de Termino Paschae London sc. Dominus Rex mandavit dilecto fideli suo Roberto de Dalton Constabulario Turris suae London vel ejus locum-tenenti breve suum in haec verba Edwardus Deigratia Angliae Franâ—iae Rex Dominus Hiberniae dilecto fideli suo Roberto de Dalton Constabulario Turris suae London vel ejus locum-tenenti salutem Mandamus vobis quod Iohannem de Bildeston Cappellanum quem vicecomites nostri London ad mandatum nostrum apud praedictam Turrim vobis liberabunt ab eisdem recipiatis in prisona nostra Turri praedicta custodiri faciatis quousque aliud vobis super hoc duxerimus de mandato Teste me ip so apud Turrim nostram London trigesimo die Martii anno Regni nostri Angliae sextodecimo Regni vero nostri Franciae tertio Et modo scilicet in Craft Ascension Dom. anno Reg. nunc 18. coram Domino Rege apud Westm. venit Iohannes de Wyndwick locum-tenens praedicti Constabularii adduxit coram Justiciarios hic in Curia praedicta Iohannem de Bildeston quem alias à praefatis vicecomitibus virtute brevis praedicti recipit c. Et dicit quod ipse à Domino Rege habuit in mandatis ducendi liberandi Corpus ipsius Iohannis de Bildeston praefat Justic. hic c. Et quaesitum est à praedicto Iohanne Wyndwick si quam aliam detentionis praefat Iohannis de Bildeston habeat causam Qui dicit quod non nisi breve praedict tantum Et quia videtur Curiae breve praedict sufficientem non esse causam praedict Iohannem de Bildeston in prisona Marescall Reg. hic retinend c. idem Iohannes dimittitur per manucaptionem Willielmi de Wakefield Rectoris Ecclesiae de Willingham Iohannis de Wyndwick de com Lancaster Iohannis de Lakenham Iohannis de Norton de com Norsolciae Nicolai de Wandesford de com Midd. Rogeri de Bromley de com Staff qui eum manuceperunt habendi eum coram Domino Rege in Octabis sanctae Trinitatis ubicunque c. viz. corpora pro corpore Ad quas Octab. sanct Trinit coram Domino Rege apud Westm. venit praedict
made to the King and Lords which is against the statute made in the 25 Ed. 3. c. 4. 42 E. 3. c. 3. By the Statute 25 Ed. 3. cap. 4. It is ordained and established that no man from henceforth shall be taken by petition or suggestion made to the King or his Councell but by indictment or course of Law and acordingly it was enacted 42 E. 3. c. 3. the title of which statute is None shall be put to answer an accusation made to the King without presentment Then my Lord it being so although the cause should not need to be expressed in such manner as that it may appear to be none of these causes mentioned in the statute or else the Subject by this return loseth the benefit and advantage of these Laws which be their birth-right and inheritance but in this return there is no cause at all appearing of the first commitment and therefore it is plain that there is no cause for your Lordship to remand him but there is no cause you should deliver him since the writ is to bring the body and the cause of the imprisonment before your Lordship But it may be objected that this writ of Habeas Corpus doth not demand the cause of the first commitment but of the detaining onely and so the writ is satisfied by the return for though it shew no cause of the first commitment but of detaining onely yet it declareth a cause why the Gentleman is detained in prison this is no answer nor can give any satisfaction for the reason why the cause is to be returned is for the Subjects liberty that if it shall appear a good and sufficient cause to your Lordship then to be remanded if your Lordship think and finde it insufficient he is to be enlarged This is the end of this writ and this cannot appear to your Lordship unlesse the time of the first commitment be expressed in the return I know that in some cases the time is not materiall as when the cause of the commitment is and that so especially returned as that the time is not materiall it is enough to shew the cause without the time as after a conviction or triall had by Law But when it is in this manner that the time is the matter it self for intend what cause you will of the commitment yea though for the highest cause of treason there is no doubt but that upon the return thereof the time of it must appear for it being before triall and conviction had by Law it is but an accusation and he that is onely accused and the accusation ought by Law to be let to bail But I beseech your Lordship to observe the consequence of this Cause If the Law be that upon this return this Gentleman should be remanded I will not dispute whether or no a man may be imprisoned before he be convicted according to the Law but if this return shall be good then his imprisonment shall not continue on for a time but for ever and the Subjects of this Kingdome may be restrained of their liberties perpetually and by Law their can be no remedy for the Subject and therefore this return cannot stand with the Laws of the Realm or that of Magna Charta Nor with the statute of 28 Ed. 3. ca. 3. for if a man be not bailable upon this return they cannot have the benefit of these two Laws which are the inheritance of the Subject If your Lordship shall think this to be a sufficient cause then it goeth to a perpetuall imprisonment of the subject for in all those causes which may concern the Kings Subjects and are appliable to all times and cases we are not to reflect upon the present time and government where justice and mercy floweth but we are to look what may betide us in the time to come hereafter It must be agreed on all sides that the time of the first commitment doth not appear in this return but by a latter warrant from the Lords of the Councell there is a time indeed expressed for the continuing of him in prison and that appeares but if this shall be a good cause to remand these Gentlemen to prison they may lie there this seven yeares longer and seven yeares after them nay all the dayes of their lives And if they sue out a writ of Habeas corpus it is but making a new warrant and they shall be remanded and shall never have the advantage of the Laws which are the best inheritance of every Subject And in Ed. 6. fol. 36. the Laws are called the great inheritance of every Subject and the inheritance of inheritances without which inheriritance we have no inheritance These are the exceptions I desire to offer to your Lordship touching the return for the insufficiency of the cause returned and the defect of the time of the first commitment which should have been expressed I will not labour in objections till they be made against me in regard the sttatute of Westminster primo is so frequent in every mans mouth that at the Common Law those men that were committed in four cases were not replevisable viz. those that were taken for the death of a man or the commandment of the King or his Justices for the forest I shall speak something to it though I intend not to spend much time about it for it toucheth not this Case we have in question For that is concerning a Case of the Common Law when men are taken by the Kings writs and not by word of mouth and it shall be so expounded as Master Stamford fol. 73. yet it is nothing to this Case for if you will take the true meaning of that statute it extends not at all to this writ of Habeas corpus for the words are plain they shall be replevisable by the Common writ that is by the writ de homine replegiando directed to the Sheriffe to deliver them if they were baileable but the Case is above the Sheriffe and he is not to be Judge in it whether the cause of the commitment be sufficient or not as it appears in Fitz Herbert de homine replegiando and many other places and not of the very words of the statute this is clear for thereby many other causes mentioned as the death of a man the commandment of the Justices c. In which the statute saith men are not replevisable but will a man conceive that the meaning is that they shall not be bailed at all but live in perpetuall imprisonment I think I shall not need to spend time in that it is so plain let me but make one instance A man is taken de morte hominis he is not baileable by writ saith this statute that is by the common writ there was a common writ for this Case and that was called de odio acia as appeareth Bracton Coron 34. this is the writ intended by the statute which is a common writ and not a speciall writ But my
Monstrans de faict si upon an action of trespasse brought for cutting of trees the defendant pleadeth that the place where he cut them is parcell of the Manor of D. whereof the King is seised in fee and the King commanded him to cut the trees and the opinion of the Court there is that the plea in barre was ill because he did not shew any speciall commandment of the King and there it is agreed by the whole Court that if the King commandeth one to arrest another and the party commanded did arrest the other an action of trespasse or false imprisonment is maintainable against the party that arrested him although it were done in the presence of the King 39 H. 6. 17. where one justifieth the seisure of the goods of a person that is outlawed by the commandment of the King such a party being no Officer may not in an action brought against him have any aid of the King for such a commandment given to one that is not an Officer will not any wayes avail him that is to justifie himself by the return of that commandment 37 Hen. 6. 10. If the king give me a thing and I take the same by his commandment by word of mouth it is not justified by law nothing may passe without matter of Record 10 Hen. 7. 7. 17. 18. it is agreed that Justices may command one to arrest another that is in their view or presence but not one that is out of their view or presence And Keble 10 Hen. 7. 13. said that where one is arrested by a parroll command in their view or presence it is fitting that a record may be made of it insomuch that without such a record there can hardly be a justification in another Term. Secondly there is a commandment of the King by his Commission which according unto Calvins case in the seventh Report it is called by him breve mandatum non remediabile and by virtue of such a commandment the King may neither seise the goods of his subject nor imprison his body as it is resolved in 42 Ass. pl. 5. where it is agreed by all the justices that a Commission to take a mans goods or imprison his body without indictment or suit of the party or other due processe is against the Law Thirdly there is a commandment of the King which is grounded upon a suggestion made to the King or to his Councell and if a man be committed to prison by such a suggestion by commandment of the King it is unlawfull and not warranted by the Law of the Realm The 25 of Edward the third cap. 4. de Provisoribus whereas it is contained in the great Charter of the Franchises of England that none shall be imprisoned or arrested of his Free-hold or of his Franchises nor of his free customes but by the Law of the land It is awarded consented and established that from hence forth none shall be taken by petition or suggestion made to our Soveraign Lord the King or to his Councell untill it be by indictment or presentment of his good and lawfull neighbours where such deeds are done in due manner or by processe made by writ originall at the common law nor of his free-hold unlesse he be duely brought in and answer and forejudged of the same by way of Law and if any thing be done against the same it shall be redressed and holden for nought 37 Ed. 3. cap. 10. although it be contained in the great Charter that no man be taken or imprisoned or put out of his freehold without due processe of the law neverthelesse divers persons make false suggestions to the King himself as well for malice as otherwise whereof the King is often grieved and divers of the Realm put in great damages contrary to the form of the same Statute Wherefore it is ordained that all they that make such suggestions be sent with their suggestions to the Chancellour or Treasurer and they and every of them find sureties to pursue their suggestions and endure the same pain that the other should have had if in case that his suggestion be found untrue and that then processe of the law be made against them without being taken or imprisoned against the form of the same Charter and other statutes So that it appears by these severall statutes that such commandments of the King as are grounded upon suggestion either made to himself or to his Councell for the imprisonment of a man are against the law Fourthly I find that there is a commandment of the King which is made under his hand with his signet for in the fourth and the fifth of Philip and Mary Dier 162. where the statute of 1 Rich. 2. cap. 11. restraineth the Warden of the Fleet for letting any man at large that is in upon judgement at the suit of any man except it be by writ or other commandment of the King It was doubted whether the Queen by letter under her hand and privy signet doth give commandment to the Warden of the Fleet to suffer a man that is there in execution to go about his businesse or the affaires of the Queen whether this be a warrantable command or not within the Statute and the Law hath alwayes been conceived upon that book that such a commandment is not warrantable by Law and if such a command will not serve the turn to give unto a man his liberty which the Lord favoureth and had the countenance of an Act of Parliament for the doing of it then I conceive it should be a more strong case the King should not have power by his commandment to imprison a man without due processe of the Law and restrain him of his liberty when there had been so many Acts of Parliament made for the liberty of the subjects Fifthly I do find that there is the commandment of the King which is by his writ under the Great Seal or the seal of the Court out of which it issueth Regist. f. 69. 70. in the writ de cautione admittenda I find the words mandatum Regis expounded to be breve Regis for the writ goeth Rex vic' Salutem Cum nuper ad requisitionem S. de Isle Canonici Lincol. venerabilis Patris H. Lincoln Episcopi ipso in remotis agente Vicarii general per Literas suas patentes nobis significantis Nicho. B. dict Lincoln Dioc. propter manifestam contumaciam Authoritate ipsius Episcopi Ordinar excommunicat esse nec si velle c. vobis praeceperimus quod praefat c. satisfactum ex parte ipsius N. qui virtute mandati nostri praedict per vos Capt. in Prison nostrade Newgate detent existit c. nos nolentes quod praefat N. per breve nostrum praedict via praecludatur c. prosequi possit in forma Iuris maxim ' c. integer esse debeat vobis praecipimus quod scire c. quod sit c. quare praedict N. Ã Prisona praediet
to be concluded that is that as Fellony is a greater Cause then Surety of the peace so the matter whereupon the Kings command was grounded was greater then Fellony But in truth this kinde of Argument holds neither way here and whatsoever the Cause were why the King committed him it was impossible for the Court to know it and it also might be of very high moment in matter of state and yet of farr less nature then Fellony All which shews that this president hath his full force also according as it was first used in Argument by the house of Commons To the third of these which is Binckes Case in the 35. H. 8. Rot. 33. the Objection was that there was a Cause expressed pro suspicione felloniae and though pro aliis causis illos moventibus were added in the Return yet because in the course of enumeration the general name of aliis comming after particulars includes things of less nature then the particuler doth therefore in this Case suspition of fellony being the first the other Causes afterwards generally mentioned must be intended of less nature for which the Prisoner was bailable because he was bailable for the greater which was suspition of fellony Hereunto it was replyed that the Argument of enumeration in these Cases is of no moment as is next before shewed and that although it were of any moment yet any Case though less then fellony might be of very great consequence in matter of state which is pretended usually upon generall Returns of command without cause shewed and it is most plain that the Court could not possible know the reasons why the Prisoner here was committed and yet they bailed him without looking further after any unknown thing under that title of Matter of state which might as well have been in this Case as in any other whatsoever To the 4. of these which is Overton's Case in 2. 3. Phet M. Rot. 58. and to the 5. which is Newports Case P. M. 4. 5. Rot. 45. onely these Objections were said over again by M r. Attorney which are mentioned in the Argument made out of presidents in behalf of the house of Commons at the first conference and in the same Argument are fully and clearly satisfied as they were in like manner now again To the 6. of these which was Lawrence his Case M. 9. Eliz. Rot 35. and the 7. which is Constables P. 9. Eliz. Rot. 68. the same Objections onely were likewise said over again by M r. Attorney that are mentioned and clearly and fully answered in the Argument made at the first conference out of presidents in behalf of the house of Commons the force of the Objection being onely that it appeared in the Margent of the Roll that the word Pardon was written but it is plain that the word there hath no reference at all to the reason why they were bailed nor could it have reference to the Cause why they were committed in regard the Cause why they were committed is utterly unknown and was not shewed To the 8. of these Presidents which was Brownings Case P. 20. Eliz. Rot. 72. It was said by M r. Attorney that he was bailed by a letter from the Lords of the Councel directed to the Judges of the Court but being asked for that letter or any Testimony of it he could produce none at all but he said he thought the Testimony of it was burnt among many other things of the Councel-table at the burning of the banquetting house To the 9. being Harecourts Case H. 40. Eliz. Rot. 62. the self same Objection was made by him but no warrant was shewed to maintain his Objection To the 10. which is Catesbyes Case in vacatione Hill 43. Eliz. he said that it was by direction of a privy Seal from the Queen and to that purpose he shewed the Seal of 43. Eliz. which is at large among the Transcripts of the Records concerning bails taken in Cases where the King or the Lords assented But it was replied that the privy seal made onely for some particular Gentlemen mentioned in it and for none other as indeed appears in it and then he said that it was likely that Catesby here had a privy seal in his behalf because those other had so which was all the force of his Objection To the 11. of these which is Beckwiths Case in Hill 12. Iacobi Rot. 153. he said that the Lords of the councel sent a letter to the Court of Kings-Bench to bail him And indeed he produced a letter which could not by any means be found when the Arguments were made at the first conference and this letter and a coppy of an obscure Report made by a young student which was brought to another purpose as is hereafter shewed were the onely things written of any kinde that M r. Attorney produced besides the particulars shewed by the house of Commons at the first conference To this it was replied that the letter was of no moment being onely a direction to the Chief Iustice and no Matter of record nor any way concerning the rest of the Iudges And besides either the Prisoner was bailable by the Law or not bailable if bailable by the Law then was he to be bailed without any such letter if not bailable by the Law then plainly the Judges could not have bailed him upon the letter without breach of their oath which is that they are to do Iustice according to the Law without having respect to any command whatsoever so that letter in this Case or the like in any other Case is for point of Law to no purpose nor hath any weight at all by way of Objection against what the Record and the Judgment of the Court shews us To the 12. and last of these which is Sir Thomas Monsons Case in the 14. Iacobi Rot. 147. the same Objection was said over by him which was mentioned and clearly answered in the Argument and that one ground which is infallible That the Iudgment upon a return is to be made onely out of what appears in the body of the return it self was again insisted upon in this Case as it was also in most of the rest And indeed that alone which is most clear Law fully satisfies almost all kinds of Objections that have been made to any of these presidents which thus rightly understood are many ample Testimonies of the Judgments of the Court of Kings-Bench touching this great point in the several ages and raignes of the several Princes under which they fell After his Objections to the 12. and the Replies and satisfactions given to those Objections he came next to those wherein the Assent of the King and privy Councel appears to have been upon the enlargment but he made not to any of those any other kinde of Objections then such as are mentioned and clearly answered as they were now again in the Argument made at the first conference And for so much as concerns Letters of assent
and Commission whereby it may be executed I have here in my hand delivered unto me by a Noble Gentleman of that Nation and a worthy Member of this House Sir Francis Stuart To conclude although Christianity and Religion be established generally throughout this Kingdom yet untill it be planted more particularly I shall scarce think this a Christian Common-wealth seeing it hath been moved and stirred in Parliament it will lye heavy upon Parliaments untill it be effected Let us do something for God here of our own and no doubt God will bless our proceedings in this place the better for ever hereafter And for my own part I will never give over solliciting this cause as long as Parliaments and I shall live together CHARLES REX To our trusty and well-beloved the Lords Spiritual and Temporal of the Higher House of PARLIAMENT WE being desirous of nothing more then the advancement of the good peace and prosperity of our people have given leave to free debates of highest points of our Prerogative Royal which in times of our Predecessors Kings and Queens of this Realm were ever restrained as Matters they would not have disputed and in other things we have been willing fairly to condiscend to the desires of our loving Subjects as might fully satisfie all moderate mindes and free them from all just fears and jealousies with those Messages which heretofore we have sent to the Commons House will well demonstrate to the World and yet we finde it still insisted on that in no case whatsoever should it never so nearly concern Matters of State and government we nor our privy Councel have power to commit any man without the cause shewed whereas it often happens that should the cause be shewed the service thereby would be destroyed and defeated and the cause alleadged must be such as may be determined by our Judges of our Courts at Westminster in a Legal and Ordinary way of Justice whereas the cause may be such whereof the Judges have no capacity of Judicature or rules of Law to direct or guide their Judgements in cases of that transcendent nature which hapning so often the very intermitting of the constant rules of government for many ages within this Kingdom practised would soon dissolve the very frame and foundation of our Monarchy wherefore as to our Commons we have made propositions which might equally preserve the just Liberty of the Subject So my Lords we have thought good to let you know that without overthrow of our Soveraignty we cannot suffer this power to be impeached But notwithstanding to clear our conscience and just intentions this we publish that it is not in our hearts nor ever will we extend our royal power lent unto us from God beyond the just rule of moderation in any thing which shall be contrary to our Laws and Customes where the safety of our people shall be our onely aim And we do hereby declare our royal pleasure and resolution to be which God willing we shall ever constantly continue and maintain that neither we nor our privy Councel shall or will at any time hereafter commit or command to Prison or otherwise restrain the Person of any for not lending money unto us or for any other cause which in our conscience doth not concern the State the publick good and safety of us and of our people we will not be drawn to pretend any cause which in our Judgements is not or is not expressed which base thought we hope no man will imagine can fall into our royal breast that in all cases of this nature which shall hereafter happen we shall upon the humble Petition of the party or access of our Judges to us readily and really express the cause of their commitment or restraint so soon as with conveniency and safety the same is fit to be disclosed and expressed That in all causes Criminal of ordinary Jurisdiction our Judges shall proceed to the deliverance and baylment of the Prisoner according to the known and ordinary rules of the Laws of this Land and according to the Statutes of Magna Charta and those other six Statutes insisted upon which we do take knowledge stand in force and which we intend not to abrogate against the true intention thereof Thus we have thought fit to signifie unto you the rather for shortning any long delayes of this question the season of the year so far advanced and our great occasions of State not lending us many dayes for long continuance of this Session of Parliament Given under our Signet at our Pallace of Westminster the 12. of May in the fourth year of our Raign The KINGS Message by the Lord Keeper 21. May 1628. HIs Majestie commanded me to signifie to your Lordships that the business concerning your part presented by the Commons to the Lords concerning the Liberty of the Subject wholly depends upon your Lordships and because his affairs are pressing and that he is very suddenly to take a Journey to Portsmouth As also because his Majesty would have the business put in a good forwardness before his going thither his Majestie desires your Lordships this day to proceed to a resolution whether you will joyn with the House of Commons in the Petition or not M r. MASONS speech concerning the Addition propounded by the Lords to be added to the Petition of Right IN our Petition of Right to the Kings Majestie we mentioned the Laws and Statutes by which it appeared that no Tax Loan or the like ought to be levied by the King but by common assent in Parliament That no Freeman ought to be imprisoned but by the Law of the Land That no Freeman ought to be compelled to suffer Souldiers in his house In the Petition we have expressed the breach of these Laws and desire that we may not suffer the like all which we pray as our Rights and Liberties The Lords have proposed an addition to this Petition in these words We humbly present this Petition to your Majestie not onely with a care of our own Liberties but with a due regard to leave intyre that Soveraign power wherewith your Majesty is intrusted for the protection safety and happiness of your people and whether we shall consent unto this addition is the Subject of this dayes discourse And because my Lord Keeper at the last conference declared their Lordships had taken the words of the Petition apart The word leave in a Petition is of the same nature as saving in a grant or Act of Parliament when a Man grants but part of a thing he saves the rest when he Petitions to be restored but to part he leaveth the rest then in the end of our Petition the word leave will imply that something is to be left of that or at least with a Reveâ—â—â—â—â— to what we desire The word entyre is very considerable a Conquerour is bound by no Law but hath power dare leges his will is a Law and although William the Conquerour at first to make
to the Barre on Munday next Which is Ordered At the Committee for Religion SIr Thomas Hobbie from the Committee reported for the examination of the Keeper and Clerk of Newgate concerning the Priests there being a Warrant under the Attorneys hand for the deliverie of the Persons a Warrant under the Lord Chief Justices hand according to a Letter which he received from the Lord of Dorset signifying that it was his Majesties pleasure that the Priest condemned should be reprived Another Warrant under the Attorneys hand that the Priests condemmed should be reprived and also in the Kings name to release those other nine persons Sir Nathaniel Ritch I am confident the Grace of the King hath been abused in this that therefore the privie Counsellers of this House may know whether it were his Majesties direction It is moved that Mr. Secretarie Cook may first declare his knowledge in this One Cross gave intimation of these persons First the Secretarie Super totam maternam It is evident that the Colledge at Clarkenwell is a Colledge of Iesuits holden under a Forreign Supream power Sir Francis Seymour taxeth Mr. Attorneys affection and judgement in this and also declareth continual Letters from Mr. Attorney in stay of proceedings against Recusants You see in this how slightly Mr. Attorney hath put over a business of this weight to Mr. Long. Cross the Pursevant saith there was an Eleventh man in the New Prison and the Keeper of that Prison said he was delivered by Warrant from the Councel-board Sir Iohn Elliot No man could find a way on which to vent his malice so much to this Church and State as by protecting these men That this may be fixed home on that great Lord of Dorset that I fear hath defiled his fingers too far in this business and on Mr. Attorney whom I am sorrie I have occasion to nominate so often in this matter of Religion in stopping of proceedings against Recusants Mr. Recorder is ordered to be sent for and to be examined in this rather than to be sent for having had the Honor formerly to sit in the Chair Secretarie Cook saith we shall find that the King being mercifull in case of shedding bloud gave direction for the repriving of those Priests Sir Iohn Elliot I doubt not when we shall declare the depth of this to his Majestie but he will render them to judgement that gave him advice herein Sir Nath. Ritch These Iesuits are bound by Sureties to answer further at the Councel-board I wish these Bonds would produce these Men that by examination of them we may find out the whole pack of their Benefactors and Countenancers Mr. Long saith that he offering at Session the Evidence by order from M. Attorney the Lord Chief Justice Richardson interrupted him and told him he must speak to the point in issue whether Priests or no Priests and hereupon the Judges consulted amongst themselves Mr. Selden saith he was present at the Sessions and plain Treason was proved and nothing done in it The further examination of this is referred to a select Committee Munday 16. A Petition of Complaint against Sir Henry Martin for disposing of the goods of one Brown who died intestate to his own private use Sir Henry Martin If I prove not my self as clear of this as St. Iohn Baptist let me be reckoned to be a Jew Referred to the Committee for course of Justice At the Committee for Religion MAster Stroud That the Lord Chief Justice may be called to give an account of his stay of Justice in the execution of the condemned Priests which he ought not to have done though his Majestie signified his pleasure to the contrarie Chancellor of the Dutchie That was a thing ordinarie for a Chief Justice to do in Queen Elisabeths and King Iames times as also a Declaration in the Star-chamber that all condemned Priests should be sent to the Castle of Wisbitch and from hence though the King had given no order for the replevie he might have taken his Warrant for his proceedings Mr. Selden reporteth from the Committee for the further examination of Mr. Long concerning the proceeding at Newgate against the Iesuits whereby plainly appeareth that the evidence tendered in the Court at Newgate did plainly testifie these men to be Priests yet the Lord Chief Justice Richardson did reject the same against the sence of the rest of the Judges and Justices present whereby it is plain he dealt under-hand to some of the Iesuites Ordered That two Members shall be sent to each Judge that were present at the Sessions at Newgate who were said to be the Lord Chief Justice of the Kings Bench the Chief Justice of the Common-pleas Justice Whitlâ—ck Justice Iones and Justice â—rook Tuseday 17. MAster Chambers preferreth another Petition in complaint of a Warrant newly proceeding from the Councel-board for the stay of the Merchants goods unless they payed the duties that were due in King Iames his time Sir Iohn Elliot You see as by the last answer from the Exchequer the Merchants were bounded within the Court to sue for their own so they are now debarred from all means of coming by their own It is Ordered that the Customers shall attend the House on Thurseday next In the mean time it is referred to the former Committee Ordered a Committee of six to Collect and take all the names at the Fast and to meet at eight of the Clock in the Morning Ordered That a Committee shall consider of a speedie way to put the Merchants in Possession of their goods without which it is warned we sit here in vain Sir Thomas Hobbie Reported from my Lord Chief Justice Hide that he doth not remember any Papers tendred by Mr. Long were rejected or that he affirmed they were dangerous persons and a Colledge of Iesuits but howsoever Mr. Long tendred nothing to prove them so but that he had diverse papers in his hand Mr. Wansford Reported from the Lord Chief Justice Richardson who saith that Mr. Long did discourse of the place and house but did not press the reading of any papers neither doth he know what was in the papers neither knew he any thing to prove the persons Priests Sir Thomas Barrington delivereth the answer of Justice Iones who saith the same papers were offered by Mr. Long but he knoweth not the Contents thereof nor the reason why they were refused but he came late for want of his health and the second day was not there at all The like â—as Reported by Sir Will. Constable from Justice Crook Sir Thomas Barrington saith Although that Justice Iones did not write the name of my Lord Chief Justice Richardson yet in discourse named him to be the man that said The point in proof is not whether they be Priests or no Priests Sir Nath. Ritch Here is a charge of a high nature on the Judges by Mr. Long. That Mr. Long now may make good his Charge or suffer for it for there were witnesses enough in
14 M r. Goodwins speech March 22. pag. 18 Sir Francis Seymour's speech ibid. Sir Thomas Wentworth's speech pag. 20 The speech and Argument of M r. Creswell of Lincolnes Inne concerning the subjects grievance by the late Imprisonment of their persons pag. 21 Sir Benjam Ruddier's speech pag. 27 Sir Robert Phillip's speech pag. 28 Sir Thomas Edmonds pag. 30 Sir Iohn Elliot ibid. Sir Hum May ibid. The Petition for the fast March 26. 1628. pag. 31 The Kings Propositions March 28. pag. 32 Three grand questions ibid. Sir Iohn Coke his speech at a Conference between the Lords and Commons about the Petition to the King against Recusants pag. 33 The Petition of both Houses to his Majesty concerning Recusants March 31. pag. 34 The Kings Answer to the Petition against Recusants pag. 37 The Answer to the same Petition by the Lord Keeper Coventry pag. 38 Sir Edward Cokes speech March 25. upon a Question of law in point of Judgement given in the Kings Bench Mich. 3. Caroli viz. that a Prisoner detain'd by Commitment per special Mandat Regis without expressing a Cause is not Bailable wherein he held negatively pag. 39 The substance of the Kings speech upon the relating of the proceedings of the Parliament to him by the Counsellers of the Commons house of Parliament April 4. pag. 41 The Duke of Buckinghams speech to his Majesty the 4 of April ibid. S r Iohn Elliot in Answer to M r Secretary Coke's message of thanks from the King and the Duke of Buckingham delivered in the Commons house of Parliament April 5 pag. 43 A message by Secretary Coke from the King to the lower house April the 7 pag. 44 S r Benjamin Ruddier's speech upon the Receit of his Majesties Answer to the petition against Recusants pag. 45 The Kings message to the House of Commons by M r Speaker April 12. pag. 46. The petition concerning billetting of souldiers April 14. pag. 47 Nine heads of the House of Commons to the Speaker pag. 49 The Speaker S r Iohn Finches speech upon the nine heads pag. 50 The Kings Answer to the petition concerning billetting of souldiers pag. 53 S r Dudley Diggs his Introduction pag. 54 The Argument made by M r Littleton at the Command of the House of Commons out of Acts of Parliament and Authorities of Law expounding the same at the first Conference with the Lords touching the person of every Freeman pag. 56 The Objections of the Kings Councell with the Answers made thereto at the two Conferences touching the same matter pag. 65 The true Copies of the Records not printed which were used on either side of that part of the debate pag. 70 The Argument which by Command of the House of Commons was made at their first Conference with the Lords touching the liberty of the person of every Freeman out of presidents of Record and resolutions of Judges in former times by M r Selden pag. 76 The whole copies of the presidents of Record mentioned in one of the Arguments made at the first conference with the Lords touching the liberty of the person of every Free-man pag. 92 S r Edward Coke pag. 107 The Arguments of Serjeant Bramston on the Habeas Corpus pag. 111 The Argument of M r Noye upon the Habeas Corpus pag. 117 The Argument of M r Selden upon the Habeas Corpus pag. 122 The Argument of M r Calthrop upon the Habeas Corpus pag. 125 The substance of the Objections made by M r Attorney generall before a Committee of both Houses to the Argument that was made by the House of Commons at the first Conference with the Lords out of presidents of Record and resolutions of Judges in former times touching the liberty of the person of every Free-man and the Answer and replies presently then made by the House of Commons to these Objections pag. 121 The proceedings against the Earl of Suffolk April 14. p. 135 Severall speeches made at the Debatesconcerning the Kings propositions pag. 138 M r Alford ibid. S r Robert Maunsell ibid. S r Francis Seymour ibid. S r Peter Hayman ibid. M r Pimme ibid. Secretary Coke ibid. S r Dudley Diggs pag. 139 M r Spencer ibid. M r Iohn Elliot ibid. S r Edward Coke ibid. S r Thomas Wentworth pag. 146 S r Henry Martin ibid. M r Kirton ibid. S r Robert Phillips ibid. Serjeant Hoskins ibid. Serjeant Ashleys Argument seconding M r Attorney in the behalf of his Majesty pag. 141 M r Noyes Argument April 16 pag. 144 M r Glanvills Argument pag. 145 The Answer of the Judges for matter of fact upon the Habeas Corpus April 21 pag. 146 Iudge Whitlock's speech pag. 147 Iudge Iones his speech pag. 148 Iudge Doderidges speech pag. 149 The Lord chief Iustice his speech ibid. The Earl of Warwick's speech April 21 pag. 150 The Arch Bishop of Canterburies speech at the Conference of both Houses April 25 pag. 153 The five propositions read by the Lord Bishop of Norwich April 25. 1628 ibid. S r Dudley Diggs his speech in behalf of the Commons pag. 154 S r Benjamin Ruddier's speech April 28 pag. 157 The Lord Keeper's speech April 28. pag. 157 The Bishop of Exceter's letter sent to the House of Commons April 28. pag. 158 M r Hackwell of Lincolnes Inne his speech in the lower House May 1 pag. 159 The objections against M r Hackwel's speech ibid. Secretary Coke's message May 1 pag. 161 Secretary Coke's speech concerning himself and the nature of his place under his Majesty pag. 162 Henry Tomson one of the Sheriffs and Robert Henisworth Alderman of the city of York their submission for their indirect choosing of S r Thomas Savil Knight pag. 163 Propositions drawn for the defence of this Kingdome and the annoyance of the enemies of the same by sea ibid. Iudge Andersons speech pag. 165 The Kings message May 2 by Secretary Coke pag. 167 M r Masons speech May 2 ibid. The Speakers speech to his Majesty in the banquetting house May 5 pag. 171 The Kings Answer to the House of Commons delivered by the Lord Keeper May 5 pag. 173 The Lord Cok's speech at the Conference in the painted Chamber presenting the petition of Right May 8 pag. 174 The petition of Right to the Kings most excellent Majesty pag. 175 S r Benjamin Ruddier's speech page 178 His Majesties letter to the Lords spirituall and temporall of the higher House of Parliament pag. 180 The Kings message by the Lord Keeper May 21 pag. 181 M r Masons speech concerning the addition propounded by the Lords to be added to the petition of Right pag. 182 The Reasons of the Commons House delivered by M r Glanvil why they cannot admit of the propositions tendred unto them by the Lords 186 S Henry Martin's speech pag. 188 The Kings speech in the Higher House at the meeting of both Houses Iune 2. pag. 194 The Lord Keeper in explanation of the same pag. 195 The Kings Answer to the petition of Right Iune 2.
hearts and affections loyally and religiously devoted to God and your Majesties service and to the safety of your Majesties Sacred Person we most zealously present to your Princely Wisdome craving your Majesties chearful and gracious approbation The King's Answer to the Petition against Recusants March 31. 1628. My Lords and Gentlemen I Do very well approve the method of your proceeding à Jove principium hoping that the rest of your Consultations will succeed the happier And I like the preamble of my Lord Keeper otherwise I should a little have suspected that you thought me not so carefull of Religion as I have been and ever shall be wherein I am as forward as you can desire As for the Petition I answere first in generall that I like it well and will use those as well as all other means for the maintenance and propagation of that Religion wherein I have lived and doe resolve to die But for the particulars you shall receive a more full answer hereafter And now I will only add this that as we pray to God to help us so we must help our selves for we can have no assurance of his assistance if we do ly in bed and only pray without using other means And therefore I must remember you that if we do not make provision speedily we shall not be able to put one Ship to sea this year Verbum sapienti satis est The Answer to the same Petition by the Lord Keeper Coventrey TO the first point his Majesty answereth That he will accoreding to your desire give both life and motion to the Laws that stand in force against Iesuits Seminary Priests and all that have taken Orders by authority of the Sea of Rome and to that end his Majesty will give strict order to all his Ministers for the discovering and apprehending of them and so leave them being apprehended to the triall of the Law and in case after tryall there shall be cause to respite the execution of any of them yet they shall be committed according to the example of best times to the Castle of Westbitch and there be safely kept from exercising their functions or spreading their Superstitious and dangerous Doctrine and for the receivers and abettors they shall be left to the Law To the second His Majesty granteth all that is desired in this Article and to this end will give order to the Lord Treasurer Lord high Admirall and Lord Warden of the Cinque Ports that in their severall places they be carefull to see this Article fully executed giving strict charge to all such as have place or authority under them to use all diligence herein and his Majesty requireth them and all other his Officers and Ministers to have a vigilant eye upon such as dwell in dangerous places of advantage or opportunity for receiving or transporting any such as are here mentioned and his Majesty will take it for good service if any will give knowledge of such as have connived or combined or shall connive or combine as is mentioned in this Article that Justice may be strictly done upon them To the third His Majesty will take order to restrain the recourse of Recusants to the Court and also for the other points of this Article his Majesty is well pleased that the Laws be duly executed and that all unlawfull Licenses be annulled and discharged To the fourth His Majesty is most willing to punish for the time past and prevent for the future any the deceits and abuses mentioned in this Article and will account it a good service in any that will inform himself his Privy Councell Officers of his Revenue Judges or Councell learned of any thing that may reveal this Mystery of Iniquity and his Majesty doth strictly charge and command every of them to whom such information is made that they suffer not the same to die but do their utmost endeavour to effect a clear discovery and bring the Offenders to punishment and to the intent that no concealed toleration may be effected his Majesty leaveth the Lawes to their course To the fifth His Majesty is pleased to prohibite and restrain the coming and resort to the house of Ambassadours and will command a vigilant watch to be set for their taking and punishing as is desired To the sixth He is perswaded that this Article is already observed with good care neverthelesse for the avoyding as much as may be errours and escapes in that â—ind his Majesty will give order to the Lord Keeper that the next Terme he call unto him all the Judges and take information from them of the state of their severall Circuits if any such as are mentioned in this Article be in the Commission for Peace that reformation may be made thereof and will likewise give order to the Lord Admirall and to such persons to whom it shall appertain to make diligent enquiry and certifie to his Majesty if any such be in place of authority and command in his ships or service To the seventh His Majesty doth fully grant it To the eighth His Majesty doth well approve it as a matter of necessary consideration and the Parliament now sitting he recommendeth to both Houses the preparation of a fitting Law to that effect and his Majesty doth further declare that the mildnesse that hath been used towards them of the Popish Religion hath been upon hope that forraign Princes thereby might be induced to use moderation towards their Subjects of the Reformed Religion but not finding that good effect which was expected his Majesty resolveth unlesse he shall very speedily see better fruit to adde a further degree of severity to that which is in this Petition desired Sir Edward Coke's Speech March 25. upon a Question of Law in point of the Iudgement given in the Kings Bench Mich. 3. Caroli Viz. That a Prisoner detained by Committment per special mandat Regis without expressing a Cause is not bailable wherein he held negatively and spake as followeth IT is true that the Kings Prerogative is a part of the Law of this Kingdome and a supream part for the Prerogative is highly tendred and respected of the Law yet it hath bounds set unto it by the Laws of England But some worthy Members of this House have spoken of forraign States which I conceive to be a forraign Speech and not able to weaken the Side I shall maintain That Master Attorney may have something to answer unto I will speak without taking another day to the body of the Cause yet keeping something in store for another time I have not my Vade mecum here yet I will endeavour to recite my Ancestours truly I shall begin with old Authority for Errorem ad sua principia referre est refellere The ground of this Errour was the Statute of Westm. 1 cap. 15. which â—aith that those are not repleviable who are committed for the death of a man or by the commandment of the King or his Justices for the Forrest for so it
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 Liber de Chartsey sive Regiâ—â—rum de Chartsey reparatas decoravit decoratas confirmavit which confirmavit sheweth that good King Edward did not give those Lawes which William the Conquerour and all his Successours â—ithence 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 De Dom. polit eâ— regal Regnum illud in omnibus Nationum Regum temporibus eisdem quibus nunc regitur legibus consuetudinibus regebatur But my good Lords as the Poet said of Fame I may say of our Common Law Ingreditur solâ— caput inter nubila condit Virgil. Wherefore the cloudy part being mine 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 this Land And when according to the Lawes and Statutes of this Realm redresse hath been sought for in a legall way by demanding Habeas Corpus from the Judges and a discharge or triall according to the Law of the Land successe hath failed which hath now inforced the Commons in this present Parliament assembled to examine by Acts of Parliaments Presidents and Reasons the truth of English Subjects Liberties which I shall leave to learned Gentlemen whose weightie Arguments I hope will leave no place in your Lordships memories for the errours and infirmities of your humblest Servant that doth thankfully acknowledge the great favour of your most honourable and patient attention The Argument made by M r Littleton at the command of the House of Commons out of Acts of Parliament and Authorities of Law expounding the same at the first Conference with the Lords concerning the Liberty of the Person of every Free-man My Lords UPon the occasions delivered by the Gentleman that last spake your Lordships have heard the Commons have taken into their serious Consideration the matter of Personall Libertie and after long debate thereof on divers dayes as well by solemn Arguments as single propositions of doubts and answers to the end no scruple might remaine in any mans breast unsatisfied they have upon a full search and cleer understanding of all things pertinent to the Question â—nanimously declared That no Free-man ought to be committed or detained in prison or otherwise restrained by the command of the King or the Privie Councell or any other unlesse some cause of the commitment detainer or restraint be expressed for which by Law he ought to be committed detained or restrained And they have sent me with some other of their Members to represent unto your Lordships the true grounds of such their resolutions and have charged me particularly leaving the reasons of Law and Presidents for others to give your Lordships satisfaction that this Libertie is established and confirmed by the whole State the King the Lords Spirituall and Temporall and the Commons by severall Acts of Parliament The authority whereof is so great that it can receive no answer save by interpretation or repeal by future Statutes And these that I shall mind your Lordships of are so direct to the point that they can bear no other exposition at all and sure I am they are still in force The first of them is the Granâ— Charter of the Liberties of England first granted in the 17 yeare of King Iohn and renewed in the 9 yeare of King Hen. 3. and since confirmed in Parliament above 30 times Cap. 29. the words are these Nullus liber homo capiatur vel imprisonetur aut diseisietur de libero tenemento suo vel libertatibus vel liberis consuetudinibus suis aut utlagetur aut exuletur aut aliquo modo destruatur nec super cum ibimus nec super cum mittemus nisi per legale judicium parium suorum vel per legem terrae These words Nullus liber home c. are expresse enough yet it is remarkable that Matthew Paris an Authour of speciall credit doth observe fo 432. that the Charter of the 9. H. 3. was the very same as that of the 17. of King Iohn in nullo dissimiles are his words and that of King Iohn he setteth down verbatim fol. 342. and there the words are directlie Nec eum in carcerem mittemus and such a corruption as is now in the print might easily happen 'twixt 9. H. 3. and 28. E. 1. when this Charter was first exemplified But certainly there is sufficient left in that which is extant to decide this question for the words are That no Free-man shall be taken or imprisoned but by the lawfull judgement of his Peeres which is by Jury Peeres for Pares ordinary Jurours for others who are their Peeres or by the Law of the Land Which words Law of the Land must of necessity be understood in this Nation to be by due processe of Law and not the Law of the Land generally otherwise it would comprehend Bond-men whom we call Villains
grand Councell and that they there find suretie to pursue their suggestions and incurre the same paine that the other should have had if he were attainted in case that their suggestions be found evil and that then processe of the Law be made against them without being taken and imprisoned against the forme of the said Charter and other Statutes Here the Law of the Land in the grand Charter is explained to be without processe of the Law 42. E. 3. ca. 3. At the request of the Commons by their Petitions put forth in this Parliament to eschew mischiefs and damage done to divers of his Commons by false accusers which oftentimes have made their accusation more for revenge and singular benefit then for the profit of the King or of his people which accused persons some have been taken and sometimes caused to come before the Kings Councell by writ and otherwise upoâ— grievous paine against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices or matter of Record or by due processe or writ originall according to the old Law of the Land And if any thing henceforth be done to the contrary it shall be void in Law and holden for errour But this is better in the Parliament Roll where the Petition and Answer which make the Act are set down at large 42. E. 3. Rot. Parliament num 12. The Petition Because that many of the Commons are hurt and destroyed by false accusers who make their accusations more for their revenge and particular gaine then for the profit of the King or his people and those that are accused by them some have been taken and others have been made to come before the Kings Councell by writ or other Commandment of the King upon grievous paines contrary to the Law That it would please our Lord the King and his good Councell for the just government of his people to ordain that if hereafter any accuser propose any matter for the profit of the King that the same matter be sent to the Justices of the one Bench or the other or the affaires to be enquired and determined according to the Law And if it concern the accuser or partie that he take his suit at the Common Law and that no man be put to answer without presentment before Justices or matter of Record and by due processe originall writ according to the ancient Law of the Land And if any thing henceforward be done to the contrarie that it be void in Law and held for errour Here by due processe and originall writ according to the Law of the Land is meant the same thing as per legem terrae in Magna Charta and the abuse was they were put to answer by the commandment of the King The Kings Answer is thus Because that this article is an article of the Grand Charter the King wills that this be done as the Petition doth demand By this it appeareth that per legem terrae in Magna Charta is meant by due processe of the Law Thus your Lordships have heard Acts of Parliament in the point But the Statute of Westm. the 1. ca. 15. is urged to disprove this opinion where it is expresly said That a man is not replevisable who is committed by the command of the King without any cause shewn which is therefore sufficient to commit a man to prison And because the strength of the Argument may appeares and the answer be better understood I shall read the words of the Statute which is thus And for as much as Sheriffs and others have taken and kept in prison such as were replevisable and have let out by plevin such as were not replevisable because they would gaine of the one partie and grieve the other And forasmuch as before this time it was not certainly determined what persons were replevisable and what not but only those that were taken for the death of a man or by Commandment of the King or of his Justices or for the Forrest It is provided and by the King commanded that such prisoners as were before outlawed and they which have abjured the Realme Provors and such as be taken with the manner and those which have broken the Kings prison Thieves openly defamed and known and such as be appealed by Provors so long as the Provor be living if they be not of good name and such as be taken for burning of houses felloniously done or for false money or for counterfeiting the Kings Seal or persons excommunicated taken at the request of the Bishops or for manifest offences or for Treason touching the King himself shall be in no case replevisable by the common writ or without writ But such as be indicted of larceny by inquests taken before Sheriffs or Bailiffs by their office or for light suspicion or for petty-larceny that amounteth not to above the value of 12 pence if they were not guilty of some other larceny aforetime or guilty of receipt of fellons or of commandment or force or of aid in felony done or guilty of some other trespasse for which one ought not to loose life or member and a man appealed by a Provor after the death of a Provor if he be no common thief or defamed shall from henceforth be let out by sufficient suretie whereof the Sheriff will be answerable and that without giving ought of their goods And if the Sheriff or any other let any go at large by suretie that is not replevisable if he be Sheriff or Constable or any Bailiffe of fee which hath keeping of prisoners and thereof be attainted he shall loose his â—ee and office for ever And if the under-Sheriff Constable or Bailiffe of such as have fee for keeping of prisons do it contrarie to the will of his Lord or any other Bailiffe being not of fee they shall have three yeares imprisonment and make Fine at the Kings pleasure And if any hold prisoners replevisable after they have offered sufficient sureties he shall pay a grievous amercement to the King And if he take any reward for the deliverance of such he shall pay double to the prisoner and also shall pay a grievous amercement to the King The Answer It must be acknowledged that a man taken by the Commandment of the King is not replevisable for so are the expresse words of this Statute But this maketh nothing against the Declaration of the House of Commons for they say not that the Sheriff may replevy such a man by sureties scilicet Manucaptores but that he is bailable by the Kings Court of Justice For the better understanding whereof it is to be known that there is a difference betwixt replevisable which is alwayes by the Sheriff upon on pledges or sureties given and bailable which is by Court of Record where the prisoner is delivered to his Baile and they are his Gaolers and may imprison him and shall suffer for him bodie
for bodie as appeareth 33. and 36. 83. in the title of Mainprize p. 12. 13. where the difference betwixt Baile and Mainprize is expresly taken And if the words of the Statutes themselves be observed it will appeare plainly that it extends to the Sheriffs and other inferious Officers and doth not bind the hands of the Judges The Preamble which is the key which openeth the entrance into the meaning of the makers of the Law is Forasmuch as Sheriffs and others which have taken and kept in prison persons detected of fellony Out of these words I observe that it nominateth Sheriffs and then if the Justices should be included they must be comprehended under the generall word other which doth not use to extend to those of a higher rank but to inferious for the best by all course is first to be named And therefore if a man bring a Writ of Customes and Services and name Rents and other things the generall shall not include Homage which is a personall service and of a higher nature but it shall extend to ordinarie annuall services 31. E. 1. Droit So the Statute of 13. Eliz. cap. 10. which beginneth with Colledges Deanes and Chapters Parsons Vicars and concludes with these words and others having spirituall promotions shall not comprehend Bishops that are of a higher degree as appeares in the Archbishop of Canterburies Case reported by S r Edw. Coke lib. 2. fo 46. And thus much is explained in this verie Statute towards the end when it doth enumerate those were meant by the word other namely under-Sheriffs Constables Bailiffs Again the words are Sheriffs and others which have taken and kept in prison now every man knoweth Judges do neither arrest nor keep men in prison that is the office of Sheriffs and other inferiour Ministers therefore this Statute meant such only and not Judges The words are further that they let out by replevine such as were not replevisable that is the proper language for a Sheriff Nay more expresse afterward in the bodie of the Statute that such as are there mentioned shall be in no case replevisable by the common writ which is de homine replegiando and is directed to the Sheriff nor without writ which is by the Sheriff ex officio But that which receives no answer is this That the command of the Justices who derive their authorities from the Crown is there equall as to this purpose with the command of the King And therefore by all reasonable construction it must needs relate to Officers subordinate to both as Sheriffs under-Sheriffs Bailiffs Constables and the like And it were an harsh exposition to say that the Justices might not discharge their own Command and yet that reason would conclude as much And that this was meant of the Sheriffs and other Ministers of Justice appeareth by the recitall 27. E. 1. cap. 3. And likewise by Fleta a Manuscript so called because the Authour lay in the Fleet when he made the book for he lib. 2. cap. 52. in his cap. of Turnes and the views of the Hundred Courts in the Countrie sets down the Articles of the Charges that are there to be enquired of amongst which one of them is de replegiabilibus injuste detentis or irreplegiabilibus dimissis which cannot be meant of not bailing by the Justices for what have the inferiour Courts in the Countrey to do with the Acts of the Justices And to make it more plain he setteth down in this Chapter that concernes Sheriffs only the very Statute of Westm. cap. 15. which he translates verbatim out of the French into the Latin save that he renders taken by the command of the Justices thus per Judicium Justitiariorum and his Preface to the Statute plainly sheweth that he understood it of replevine by Sheriffs for he saith Qui debent per plegiâ—s dimitti qui non declarat hoc Statutum and per plegiâ—s 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 Consiliâ— i. e. Dominos de Consilio which is strongest 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
words per legem terrae the Kings Councell were desired to declare their meaning which they never offered to do and yet certainly these words were not put into the Statute without some intention of consequence Whereupon M r Serjeant Ashley offered an interpretation of them thus Namely that there were divers Lawes of this Realme as the Common Law the Law of the Chauncerie the Ecclesiasticall Law the Law of the Admiraltie or Marine Law the Law of Merchants the Martiall Law and the Law of State and that these words per legem terrae do extend to all those Lawes The answer To this it was answered that we read of no Law of State and that none of these Lawes can be meant there save the Common Law which is the principall and generall Law and is alwayes understood by way of excellency when mention is made of the Law of the Land generally and that though each of the other Lawes which are admitted into this Kingdome by Custome or Act of Parliament may justly be called a Law of the Land yet none of them can have the preeminence to be stiled the Law of the Land And no Statute Law-book or other Authoritie printed or unprinted could be shewen to prove that the Law of the Land being generally mentioned was ever intended of any other Law then the Common Law and yet even by these other Lawes a man may not be committed without a cause expressed But it standeth with the rule of other legall expositions that per legem terrae must be meant the Common Law which is the generall and universall Law by which men hold their inheritances And therefore if a man speak of Escuage generally it is understood as Littleton observeth of the incertain Escuage which is a Knights-Service Tenure for the defence of the Realm by the body of the Tenant in time of warre and not of the certain Escuage which giveth only a contribution in money and no personall service And if a Statute speakes of the Kings Courts of Record it is meant only of the 4 at Westm. by way of excellency Coke 6. 20. Gregorie's Case So the Canonists by the excommunication simplie spoken do intend the greater excommunication and the Emperour in his Institutions saith that the Civil Law being spoken generally is meant of the Civil Law of Rome though the Law of every City is a Civil Law as when a man names the Poet the Grecians understood Homer the Latinists Virgil. Secondly admit that per legem terrae extends to all the Lawes of the Realm yet a man must not be committed by any of them but by the due proceedings that are exercised by those Lawes and upon a Cause delivered Again it was urged that the King was not bound to expresse the cause of imprisonment because there may be in it matter of State not fit to be revealed for a time lest the Confederates thereupon make meanes to escape the hands 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
been made and that in this very point only upon the interpretation and apprehension of Presidents But Presidents my Lords are good media or proofs of illustration or confirmation when they agree with the expresse Law but they can never be proof enough to overthrow any one Law much lesse seven severall Acts of Parliament as the number of them is for this point The House of Commons therefore taking into consideration that in this Question being of so high a nature that never any exceeded it in any Court of Justice whatsoever all the severall wayes of just examination of the truth should be used have also most carefully informed themselves of all former Judgements or Presidents concerning this great point either way and have been no lesse carefull of the due preservation of his Majesties just Prerogative then of their own Rights The Presidents here are of two kinds either meerly matter of Record or else the former resolutions of Judges after solemn debate in the point This part that concernes the Presidents the House of Commons have commanded me to present to your Lordships which I shall as briefly as I may so I shall do it also faithfully and perspicuously To that end my Lords before I come to the particulars of any of these Presidents I shall first remember to your Lordships that which serves as a generall key for the opening and true apprehension of all them of Record without which key no man unlesse he be verst in the Entries and Court of the King's Bench can possibly understand them In all cases my Lords where any right or Liberty belongs to the Subject by any positive Law written or unwritten if there were not also a remedy by Law for the enjoying or regaining of this right or Libertie when it is violated or taken from him the positive Law were in vain and to no purpose were it for any man to have right in any land or other Inheritance if there were not a known remedy that is an Action or Writ by which in so me court of ordinary Justice he might recover it And in this case of right of Liberty of the Person if there were not a remedy in the Law for regaining it when it is restrained it were to no purpose to speak of Lawes that ordain it should not be restrained Therefore in this case also I shall first observe the remedy that every Free-man is to use for the regaining of his Liberty when he is against Law imprisoned that so upon the legall course and form to be held in using that remedy the Presidents or Judgements upon it for all Presidents of Record rise out of this Remedy may be easily understood There are in the the Law divers remedies for enlargement of a Freeman imprisoned as the Writs of odio atia and of homine replegiando besides the common and most known Writ of habeas Corpus or Corpus cum causa as it is called also The first two are Writs to be directed to the Sheriff of the Countie and lye only in some particular cases with which it would be untimely for me to trouble your Lordships because they concern not that which is committed to my charge But that Writ of habeas Corpus or Corpus cum causa is the highest remedy in Law for him that is imprisoned by the speciall command of the King or of the Lords of the Councell without shewing cause of the commitment Neither is there any such thing in the Lawes of this Land as a Petition of Right to be used in such cases for the Liberty of the person nor is there any other legall Course to be taken for enlargement in such cases howsoever the contrary hath upon no ground or colour of Law been pretended Now my Lords if any man be so imprisoned by any such command or otherwise in any prison whatsoever through England and desire either by himself or any other in his behalf this Writ of habeas Corpus for the purpose in the Court of King's Bench the Writ is to be granted to him and ought not to be denied him no otherwise then any ordinary originall Writ in the Chauncery or other common processe of Law may be denyed Which amongst other things the House of Commons hath resolved also upon mature deliberation and I was commanded to let your Lordships know so much This Writ is to be directed to the Keeper of the Prison in whose custody the Prisoner remaines commanding him that at a certain day he bring in the body of the Prisoner ad subjiciendum recipiendum juxta quod Curia consider aver it una cum causa captionis detentionis and oftentimes una cum causa detentionis only captionis being omitted The Keeper of the Prison thereupon returnes by what Warrant he detaines the Prisoner and with his Return filed to his Writ brings the Prisoner to the Barre at the time appointed When the Return is thus made the Court judgeth of the sufficiency or insufficiency of it only out of the body of it without having respect to any other thing whatsoever that is they are to suppose the Return to be true whatsoever it be For if it be false the party may have his remedy by action on the case against the Gaoler that brings him Now my Lords when this Prisoner comes thus to the Barre if he desires to be bailed and that the Court upon view of the Return think him in Law to be bailed then he is alwayes first taken from the Keeper of the Prison that brings him and committed to the Marshall of the Kings Bench and afterwards bailed and the Entrie perpetually is Commiâ—titur Marr. postea traditur in ballium For the Court never bailes any man untill he becomes their own Prisoner and be in custodia Marescalli of that Court. But if upon return of the habeas Corpus it appears to the Court that the Prisoner ought not to be bailed nor discharged from the Prison whence he is brought then he is remanded or sent back again there to remain untill by Course of Law he may be delivered And the Entrie in such case is Remittitur quousque secundum legem deliberatus fuerit or Remittitur quousque c. which is all one and is the highest award or Judgement that ever was or can be given upon a habeas Corpus But if the Judges doubt only whether in Law they ought to take him from the prison whence he came or give daie to the Sheriff to amend his Return as often they do then they remand him only during the time of their debate or untill the Sheriff hath amended his Return and the Entrie upon it is Remittitur only or Remittitur prisonae predict without any more And so remittitur generally is of farre lesse moment in the award upon the habeas Corpus then remittitur quousque howsoever vulgar opinions raised out of the fame of the late Judgement be to the contrary All these things are of most known
all Lawes First generall reason The first generall reason is drawn à re ipsa from imprisonment ex visceribus causâ— be it close or other imprisonment which is divided into three parts First No man can be imprisoned at the will and pleasure of any but he that is bond and a villain for that imprisonment at will Et Tayler lâ—g haut et base are propria quarto modo to villaines Vide the writ de nativo habendo Secoâ—d 7. E. 3. fo 50. in the new print and 348 in the old 33. E. 3. tit Dom. 253. â—infant inpris â—itz Herbers fait un note de Ceo. But if Free-men of England might be imprisoned at the will and pleasure of the King by his Command then were they in worse case then bondmen and villaines for the Lord of a villain cannot command another to imprison his villain without cause as of disobedience or refusing toserve as is agreed in our books Third Imprisonment is accounted in Law civil death perdit domum familiam vicinos patriam his house his family his wife his children his neighbours his countrey and to live among wretched and wicked men If a man be threatned to be killed 39. H. 1. 65. c. he may avoid a Feoffment of lands gifts of goods c. so it is if he be threatned to be imprisoned he should do the like for that it is civill death Second generall reason The second generall reason is à minore ad majus minima poena corporalis est major qualibet pecuniaria But the King himself cannot impose a fyne upon any man but it must be done judicially by his Judges Bracton fol. 105. it is called duritia imprisonment 2 R. 3. 11. per Iusticiarios in Curia non per Regem in Camera and so it hath been resolved by all the Judges of England Third generall reason The third generall reason is drawn from the number and diversity of remedies which the Law giveth against imprisonment viz. breve de hoâ—ine replegiando de odio acia de habeas Corpus an appeal of imprisonment breve de manuâ—aptione The latter two of these are antiquated but the writ de odio acia is revived for that was given by the statute of Magna Charta ca. 26. and therefore though it were repealed by the statute of 28. E. 3. yet it is revived 42. E. 3. ca. 1. by which it is provided that all statutes made against Magna Charta are void Videw 2. ca. 29. Now the law would never have given so many remedies if the Free-men of England might be imprisoned at free will and pleasure Fourth generall reason The fourth generall reason is drawn from the extent and universality of the pretended power to imprison for it should extend not only to the Commons of the Realm and their posterity but also to the Nobles and their honourable Progenies to the Bishops and Clergie and their successours to all persons of what condition or sex or age soever to all Judges Officers c. whose attendance are necessary c. without exception of any person Fifth generall reason The fifth is drawn from the indefinitnesse of time the pretended power being limited to no time may be perpetuall during life Sixth generall reason The sixth à damno dedecore from the losse and dishonour of the English Nation in 2 respects First for their valour and prowesse so famous through the whole world Secondly for their industry for who indeavours to apply himself in any profession either of warre liberall science or merchandise c. if he be but Tennant at will of his Liberty And no Tennant at will will support or improve any thing because he hath no certain estâ—â—â— And thus it should be both dedecus and damnum to the English Nation and it should be no honour to the King to be King of slaves Seventh generall reason The seventh is drawn ab utili inutili for that it appeareth by the statute of 36. E. 3. That the execution of the statute of Magna Charta 5. E. 3. 25. E. 3. are adjudged in Parliament to be for the profit of the King and of his people Rot. Parl. â—6 E. 3. num 9. 20. And therefore this pretended power being against the profit of the King and of his people can be no more part of this prerogative Eighth generall reason 1. E. 2. de frâ—ngprison â—â—at unt pasche 18. E. 3. rot 33. coram Rege Bildestons case rot Parl. 28. H. 6. nu 16. Acts Apost cap. 25. v. the last The eighth generall reason is for it is safe for the King to expresse the cause of the commitment and dangerous for him to omit it for if any be committed without expressing the cause though he escape albeit the truth be it were for treason or felony yet the escape is neither felony nor treason But if the cause be expressed to be for suspition of treason or felony then the escapealbeit he be innocent is treason or felony Ninth generall reason The ninth generall reason is drawn from the authorities 16. H. 6. tit Monstrans â—efaits â—82 by the whole Court the King in his presence cannot command one to be arrested but an action of false imprisonment lieth against him that arresteth 22. H. 6. 46. Newton 1. H. 7. 4. the opinion of Markham Chief Justice to E 4. and the reason because the party hath no remedy Fortescue cap. 18. proprio ore nullus Regum usus est â— to commit any man c. 4 Eliz. Plowd Com. 236. the common Common Law hath so admeasured the Kings prerogative as he cannot prejudice any man in his inheritance and the greatest inheritance a man hath is the Liberty of his person for all other are necessary to it Major hâ—reditas venit unicuique nostrum à jure legibus quam à parentibus 25. E. 1. ca. 2. Confirm Cart. all judgements given against Magna Charta are void Objections Upon Conference with the Lords the objections were made by the Kings Attorney First object That these resolutions of the House were incompatible with a Monarchy that must govern by the state Bracton Answ. Whereunto it was answered that nibiltam proprium est imperii quam legibus vivere And again Attribuat Râ—x legi quodlex attribuat c. viz. dominationem imperium quia sine lege non potest esse Rex It can be no more prejudice to the King by reason of matter of state for if it be for suspition of treason misprision of treason or felony it may be by generall words expressed viz. pro suspitione proditionis 2 object To blind those that are committed one cause must be pretended and another intended especially when it toucheth matter of state Answ. Whereunto it was answered that all dissimulation especially in the course of Justice was to be avoided and soundnesse of truth to take place and therefore David that was both a King and
Lord as this writ de odio acia was before this statute so it was afterwards taken away by the statute of 28 Ed. 3. cap. 9. But before that sttatute this writ did lie in the speciall Case as is shâ—wn in Brooks 9 th Reports Powlters Case and the end of this writ was that the Subject might not be too long detained in prison as till the Justices of Eyre discharged them so that the Law intended not that a man should suffer perpetuall imprisonment for they were very carefull that men should not be kept too long in prison which is also a Liberty of the Subject and my Lord that this Court hath bailed upon a suspicion of high treason I will offer it to your Lordship when I shall shew you presidents in these cases of a commitment by the Privy Councell or by the King himself But before I offer these presidents unto your Lordship of which there be many I shall by your Lordships favour speak a little to the next exception and that is the matter of the return which I find to be per speciale mandatum domini Regis 8. and what is that it is by this writ there may be sundry commands by the King we find a speciall command often in our Books as in the statute of Marlborough cap. 8. they were imprisoned Rediss shall not be delivered without the speciall command of our Lord the King and so in Bracton De Actionibus the last chapter where it appears that the Kings commandment for imprisonments is by speciall writ so by writ again men are to be delivered for in the case of Rediss ' or Post Rediss ' if it shall be removed by a Certiorare is by a speciall writ to deliver parties so that by this appears that by the Kings commandment to imprison and to deliver in those cases is understood this writ and so it may be in this case which we have heard And this return here is a speciall Mandatum it may be understood to be under some of the Kings Seals 42 Ass. and ought to be delivered and will you make a difference between the Kings command under his seal and his command by word of mouth what difference there is I leave it to your Lordships judgement but if there be any it is the more materiall that it should be expressed what manner of command it was which doth not here appear and therefore it may be the Kings command by writ or his command under his Seal or his command by word of mouth alone And if of an higher nature there is none of these commands then the other doubtlesse it is that by writ or under seal for they are of record and in these the person may be bailed and why not in this As to the legall forme admitting there were substances in the return yet there wants legall form for the writ of Habeas Corpus is the commandment of the King to the Keeper of the prisons and thereupon they are to make return both of the body and of the cause of the commitment and that cause is to appear of them who are the immediate Officers And if he doth it by signification from another that return is defective in Law and therefore this return cannot be good for it must be from the Officer himself and if the cause returned by him be good it bindes the prisoners The warrant of the Lords was but a direction for him he might have made his return to have been expresly by the Kings commandment there was a warrant for it I shall not need to put you cases of it for it is not enough that he returns that he was certified that the commitment was by the Kings command but he must of himself return this fact as it was done And now my Lord I shall offer to your Lordship presidents of divers kindes upon commitments by the Lords of the Privy Councel upon commitments by the speciall command of the King and upon commitments both by the King the Lords together And howsoever I conceive which I submit to your Lordship that our case will not stand upon presidents but upon the fundamentall Laws and Statutes of this Realm and though the presidents look the one way or the other they are to be brought back unto the Laws by which the Kingdome is governed In the first of Henry the eighth Rot. Parl. one Harison was committed to the Marshalsey by the command of the King and being removed by Habeas Corpus into the Court the cause returned was that he was committed per mandatum Domini Regis and he was bailed In the fortieth of Elizabeth Thomas Wendon was committed to the Gatehouse by the commandment of the Queen and Lords of the Councell and being removed by an Habeas Corpus upon the generall return and he was bailed In 8 Iacobi one Caesar was committed by the Kings commandment and this being returned upon his Habeas Corpus upon the examination of this case it doth appear that it was over-ruled that the return should be amended or else the prisoner should be delivered The presidents concerning the commitment by the Lords of the Councell are in effect the same with these where the commitment is by the reason why the cause of the commitment should not be shewn holds in both cases and that is the necessity of suit and therefore Master Stamford makes the command of the King and that of the Lords of the Privy Councell to be both as one and to this purpose if they speak he speaks and if he speaks they speak The presidents that we can shew you how the Subject hath been delivered upon commitment by the Lords of the Councell as in the time of Henry the eight as in the times of Queen Elizabeth Queen Mary are infinite as in the ninth of Elizabeth Thomas Lawrence was committed to the Towre by the Lords of the Councell and bailed upon an Habeas Corpus In the 43 of Elizabeth Calvins case In the third of Elizabeth Vernons case These were committed for high treason and yet bailed for in all these cases there must be a conviction in due time or a deliverance by Law There be divers other presidents that might be shewn to your Lordship In 12 Iacobi Miles Renards In 12 Iacobi Rot. 155. Richard Beckwiths case In 4 Iacobi Sir Thomas Monson was committed for treason to the Towre of London and afterwards was brought hither and bailed and since our case stands upon this return and yet there is no sufficient cause in Law expressed in the return of the detaining this Gentleman and since these presidents do warrant our proceedings my humble suit unto this Court is that the Gentleman Sir Iohn Henningham who hath petitioned his Majesty that he may have the benefit of the Law and his Majesty hath signified it it is his pleasure that justice according to the Law should be administred at all times in generall to all his Subjects and particularly to
Parker detentus est sub custodia mea per mandatum Domini Regis mihi nunciatum per Robertum Pecke now our case is by the Nunciation of many but in Law majus minus non variant in spetione the certification of one and of many is of the same effect although in morall understanding there may be a difference Trin. 2. Ed. 3. Rot. 46. in this Court in 21 Ed. 3. in the printed Book there is a piece of it The Abbot of Burey brings a prohibition out of this Court the Bishop of Norwich pleadeth in Barre of that Quod mihi testificatū quod continetur in Archivis that he is excommunicated there were two exceptions taken to this case in this president and they are both in one case the first was that no case appeareth why he was excommunicated there may be causes why he should be excommunicated and then he should be barred and there may be causes why the excommunication should not barre him for it may be the excomunication was for bringing the action which was the Kings writ and therefore because there was no cause of the excommunication returned it was ruled that it was not good The other reason is that upon the Roll which is mihi testificatum Now every man when he will make a certificate to the Court Proprium factum suum non alterius significare debet he must inform the Court of the immediate act done and not that such things are told him or that such things are signified unto him but that was not done in this case and therefore it was held insufficient and so in this case of ours I conceive the return is insufficient in the form there is another cause my Lord for which I conceive this return is not good But first I will be bold to inform your Lordship touching the Statute of Magna Charta 29. Nullus liber homo capiatur vel imprisonetur c. ne◠super eum mittimus nisi per legale judicium parium suorum vel per legem terrae That in this Statute these words in Carcerem are omitted out of the printed Books for it should be nec eum in Carcerem mittimus For these words per legem terrae what Lex terrae should be I will not take upon me to expound otherwise then I finde them to be expounded by Acts of Parliament and this is that they are understood to be the processe of the Law sometimes by writ sometimes by attachment of the person but whether speciale mandatum Domini Regis be intended by that or no I leave it to your Lordships exposition upon two petitions of the Commons and answer of the King in 36 Ed. 3. n o 9. and n o 20. In the first of them the Commons complain that the great Charter the Charter of the Forrest and other Statutes were broken and they desire that for the good of himself and of his people they might be kept and put in execution and that they might not be infringed by making an arrest by speciall command or otherwise and the answer was that the assent of the Lords established and ordained that the said Charter and other Statutes should be put in execution according to the petitition and that is without any disturbance by arrest by speciall command or otherwise for it was granted as it was petitioned In the same year for they were very carefull of this matter and it was necessary it should be so for it was then an usuall thing to take men by writs quibusdam de causis and many of these words caused many Acts of Parliament and it may be some of these writs may be shewn and I say in the same year they complained that men were imprisoned by speciall command and without indictment or other legall course of Law and they desired that thing may not be done upon men by speciall command against the great Charter The King makes answer that he is well pleased therewith that was the first answer and for the future he hath added farther if any man be grieved let him complain and right shall be done unto him This my Lord is an explanation of the great Charter as also the Statute of 37 Ed. 3. ch 18. is a commentary upon it that men should not be committed upon suggestion made to the King without due proofs of Law against them and so it is enacted twice in one year We find more printed Books as in Henry the sixth Minus de fiacts Fitz. 182. which is a strong case under favour in an action of Trespasse for cutting down trees the defendant saith that the place where the trees are cut is parcell of the Manor of B whereof the King is seised in fee and that the King did command him to cut them and the opinion of the Court was that this was no good plea without shewing the specialty of the command and they said if the King command me to arrest a man and I arrest him he shall have an action of false imprisonment against me although it were done in the Kings presence In 1 Ioh. cap. 7. fol. 46. it is in print and there we leave it Hussey Chief Justice saith that Sir Iohn Markham told King Edward the fourth that he could not arrest a man upon suspition of felony or treason as any of his Subjects might because if he should wrong a man by such arrest the parties could have no remedy against him if any man shall stand upon it here is a signification of the Kings pleasure not to have the cause of the commitment examined he hath here another signification of his pleasure by writ whereby the party is brought hither ad subjiciendum recipiendum that he hath made your Lordship Judge of that that should be objected against this Gentleman and either to punish him or to deliver him and if here be no cause shewn it is to be intended that the party is to be delivered and that it is the Kings pleasure it should be so and the writ is a sufficient warrant for the doing of it there being no cause shewn of the imprisonment and now my Lord I will speak a word to the writ of de homine replegiando and no other writ for that was the common writ and the four causes expressed in that Statue to wit the death of a man the command of the King or his Justices or Forrest were excepted in that writ before that Statute made as appears Bracton 133. so that the writ was at the Common Law before that Statute And it appears by our Books that if a man be brought hither by an Habeas corpus though he were imprisoned De morte hominis as in the 21 of Edward the fourth 7. Winkfield was bailed here this Court bailed him for he was brought hither ad subjiciendum recipiendum and not to lie in prison God knows how long and if the Statute should be expounded otherwise there were no bailing men outlawed or breakers of prisons
made fully to the maintenance of their resolution and that there was not one example or president of a Remittitur in any kinde upon this point before that of Cesars Case which is before cleared with the rest and is but of late time and of no moment against the resolution of the house of Commons And thus for so much as concerned the presidents of Record the first day of the conference desired by the Lords ended The next day they desired another conference which the house of Commons at which it pleased the Committee of both houses to hear M â— Attâ—rney again to make what Objection he would against other parts of the Arguments formerly delivered by the house of Commons He then Objected against the Acts of Parliament and against the reasons of Law and his Objections to these parts were answered as appears in the answers by order given into the house of Commons by the gentlemen that made them He Objected also upon the second day against that second kinde of presidents which are resolutions of Judges in former times and not of Records and brought also some other Testimonies of opinions of Judges in former times touching this point First for that resolution of all the Judges in England in 34. of Queen Eliz. mentioned and read in the Arguments made at the first conference he said That it was directly against the resolution of the House of Commons and observed the words of it to be in one place that Persons so committed by the King or the Councel may not be delivered by any of the Courts c. and in another that if the Cause were expressed either in generality or speciality it was sufficient and he said that the expressing of a cause in generality was to shew the Kings or Councels Command And to this purpose he read the whole words of that reâ—olution of the Judges Then he Objected also that in a report of one Ruswells Case in the Kings-bench in the 13. Iac. he found that the opinion of some Judges of that Court S r. Edward Coke being then Chief Justice and one of them was that a Prisoner committed per mandatum Domini Regis or privati Consilii without cause shewed and so returned could not be bayled because it might be matter of State or Arcanuâ— Imperii for which he stood committed And to this alâ—o he added an opinion that he found in a Journal of the House of Commons of the 13. Iac. wherein S r. Edward Coke speaking to a Bill preferred for the explanation of Magna Charta â—ouching imprisonâ—ent said in the House That a Prisoner so committed could not be enlarged by the Law because it might be Matter of State for which he was committed And among these Objectiâ—â—â— of other nature also he spake of the confidence that was shewed iâ— behalf of the House of Commons he said that it was not confidence could add any thing to the determination of the question but if it could that he had as much reason for the other side against the resolution of the House grounding himself upon the force of 〈◊〉 Objections which as he conceived had so weakned the Argument of the Commons House that notwithstanding any thing yet Objected they wereupon clear reason confident of the truth of their first resolution grounded upon so just examination and deliberation taken by them And it was observed to the Lords also that their confidence herein was of another nature and far greater weight then any confidence that could be expressed by M. Attorney or whomsoever elâ—e being of his Majesties Councel learned To which purpose the Lords were desired to take into their Memory the difference beâ—ween â—he present quality of the Gentlemen that â—pakâ— iâ— behalf of the House of Commons and of the Kings learned couâ—cel in their speaking there howsoever accidentally they were 〈…〉 of the same profession For the Kings Councel spake as 〈◊〉 perpetuâ—lly retained by Fee and if they made glosses and 〈…〉 adâ—anâ—agious Interpretations soever for their own part thâ—y did but wâ—aâ— belonged to their place and quality as M r. Attornâ—y had done But the Gentlemen that spake in behalf of the House of Commons came therâ— bound on the one side by the trust reposed in them by their Countrey that sent them and on the other bound also by an Oâ—th taken by every of them before they sit in they House to maintain aâ—d deâ—end the rights and prerogatives of the Crown So that 〈…〉 thâ— poâ—â—â— of confidence alone that of them that spake as â—â—tained Councel by perpetual Fee and might by their place being pâ—râ—itâ—ed to speak say what they would and that of them that spake as bound to nothing but truth but by such a trust and such an Oath were no way to be so compared or Counterpoised as if the one of them were of no more weight then the other And then the Objections before mentioned were also answered For that of the resolution of all the Judges of England in 34. Eliz. It was shewed plainly it agreed with the resolution of the House of Commons For although indeed it might have been expressed with more perspicuity yet the words of it as they are sufficiently shew that the meaning of it is no otherwise To that purpose besides the words of the whole frame of this resolution of the Judges as it is in the Coppy transcribed out of the Lord Chief Justice Andersons book written in his own hand which book was there offered to be shewed also in behalf of the House of Commons It was observed that the Records of the first part of it shew plainly that all the Judges of England then resolved that the Prisoners spoken of in the first part of their resolution were onely Prisoners committed with cause shewed for they onely said they might not be delivered by any of the Courts without due Trial by Law and Judgement of acquital had which shews plainly that they meant that by trial and acquital they might be delivered but it is clear that no trial or acquital can be had where is not some cause laid to their charge for which they ought to stand committed Therefore in that part of the resolution such Prisoners are onely meant as are committed without cause shewed which also the Judges in that resolution expresly thought necessary as appears in the second part of the resolution wherein they have these words If upon Return of the Habeas Corpus the cause of their commitment be certified to the Judges as it ought to be c. by which words they shew plainly that every return of a commitment is insufficient that hath not a cause shewed of it And to that which Mr. Attorney said as if the cause were sufficiently expressed in generality if the Kings Command or the Councels were expressed in it and as if that were meant in the resolution for a sufficient general cause it was answered That it was never heard of in Law that the power or
Common Law for there are also divers Jurisdictions in this Kingdom which are also so reckoned the Law of the Land As in Kendrick's Case in the report fol. 8. the 1. Ecclesiastical Law is held the Law of the Land to punish Blasphemies Schismes Heresies Simony Incest and the like for a good reason there rendred viz. That otherwise the King should not have power to do Justice to his Subjects in all Cases nor to punish all Crimes within his Kingdom The Admiral 's Jurisdiction is also Lex terrae for things done upon the Sea but if they exceed their Jurisdiction a prohibition is awarded upon the Statute of null us liber homo by which appears that the Statute is in force as we have acknowledged The Martial likewise though not to be exercised in times of peace when recourse may be had to the Kings Courts yet in times of invasion or other times of Hostility when an Army Royal is in the field and offences are committed which require speedy reformation and cannot expect the solemnity of legal Trials then such imprisonment execution or other Justice done by the Law Martial is Warrantable for it is then the Law of the Land and is Ius gentium which ever serves for a supply in the defeat of the Common Law when ordinary proceeding cannot be had And so it is also in the case of the Law of the Merchant which is mentioned 13. E 4. fol. 9. 10. where a Merchant stranger was wronged in his goods which he had committed to a Carrier to convey to Southampton and the Carrier imbezelled some of the goods for remedy whereof the Merchant sued before the Councel in the Star-Chamber for redress It is there said thus Merchant strangers have by the King safe conduct for coming into this Realm therefore they shall not be compelled to attend the ordinary Trial of the Common Law but for expedition shall sue before the Kings Councel or in Chancery de die in diem de hâ—râ in horam where the Case shall be determined by the Law of Merchants In the like manner it is in the Law of State when the necessity of State requires it they do and may proceed to natural equity as in those other Cases where the Law of the Land provides not there the proceeding may be by the Law of natural equity and infinite are the Occurrences of State unto which the Common Law extends not And if these proceedings of State should not also be accounted the Law of the Land then we do fall into the same inconveniency mentioned in Cawdries Case that the King should not be able to do Justice in all Cases within his own Dominions If then the King nor his Councel may not Commit it must needs follow that either the King must have no Councel of State or having such a Councel they must have no power to make Orders or Acts of State Or if they may they must be without means to compell obedience to those Acts and so we shall allow them Jurisdiction but not compel obedience to those Acts but not correction which will be then as fruitless as the Command Frustra potentia quae nunquam redigitur in statutum Where as the very Act of Westminster first shews plainly that the King may commit and that his commitment is lawfull or else that Act would never have declared a man to be irreprieveable when he is committed by the Command of the King if the Law-makers had conceived that his commitment had been unlawfull And Divine truth informs us that the Kings have their power from God the Psalmist calling them the children of the most High which is in a more special manner understood then of other men for all the Sons of Adam are by election the Sons of God and all the Sons of Abraham by recreation or regeneration the Children of the most High in respect of the power which is committed unto them who hath also furnished them with ornaments and arms fit for the exercising of that power and hath given them Scepters Swords and Crowns Scepters to vestitute and Swords to execute Laws and Crowns as Ensigns of that power and dignity with which they are invested shall we then conceive that our King hath so far transmitted the power of his Sword to inferiour Magistrates that he hath not reserved so much Supream power as to commit an Offender to prisonâ— 10. H. 6. fol. 7. It appears that a Steward of a Court Leet may commit a man to prison and shall not the King from whom all inferior power is deduced have power to commit We call him the fountain of Justice yet when these streams and rivolets which flowe from that Fountain come fresh and full we would so far exhaust that Fountain as to leave it dry but they that will admit him so much power do require the expression of the cause I demand whether they will have a general cause alleadged or a special if general as they have instances for Treason Fellony of for Contempt for to leave fencing and to speak plainly as they intend it If loan of money should be required and refused and thereupon a commitment ensue and the cause signified to be for a contempt this being unequal inconvenience from yielding the remedy is sought for the next Parliament would be required the expression of the particular cause of the commitment Then how unfit would it be for King or Councel in Cases to express the particuler Cause it s easily to be adjudged when there is no State or pollicy of government whether it be Monarchal or of any other frame which have not some secrets of State not communicable to every vulgar understanding I will instance but one If a King imploy an Ambassadour to a Forreign Countrey of States with instructions for his Negotiation and he pursue not his instructions whereby dishonour and dammage may ensue to the Kingdom is not this commitment And yet the particuler of his instruction and the manner of his miscarrying is not fit to be declared to his Keeper or by him to be certified to the Judges where it is to be opened and debated in the presence of a great audience I therefore conclude for offences against the State in Case of State Government the King and his Councel have lawfull power to punish by imprisonment without shewing particular cause where it may tend to the disclosing of State-Government It is well known to many that know me how much I have laboured in this Law of the Subjects Liberty very many years before I was in the Kings service and had no cause then to speak but to speak ex animo yet did I then maintain and publish the same opinion which now I have declared concerning the Kings Supream power in matters of State and therefore can not justly be centured to speak at this present onely to merit of my Master But if I may freely speak my own understanding I conceive it to be a question too high to
he doth willingly give way to have the abuse of power reformed by which I do verily believe that he doth very well understand what a miserable power it is which hath produced so much weakness to himself and to the Kingdom and it is our happiness that he is so foreward to redress it For my own part I shall be very glad to see that good old decrepit Law of Magna Charta which hath so long kept in and lain as it were bedrid I should be glad I say to see it walk abroad again with new vigour and lustre attended by the other six Statutes questionless it will be a general hartning to all the People I doubt not but by a debating conference with the Lords we shall happily fall upon a fair and fit accommodation concerning the Liberty of our Persons and propriety of our goods I hope we have a Bill to agree in the point against imprisonment for Loanes or privy Seals as for intrincical power and reason of State they are matters in the clouds where I desire we may leave them and not meddle in them at all least by way of admittance we may loose somewhat of that which is our own already Yet this by the way I will say of reason of State that in the latitude as it is used it hath eaten out almost not onely all the Laws but all the Religion of Christendom Now M r. Speaker I will onely remember you of one precept and that of the wisest Man Be not overwise be not over just and he cited his reason for why wile thou be desolate Sir if Justice and Wisedom may be stretcht to desolation let us thereby learn that moderation is the virtue of virtues and the wisedom of wisedomes Let it be our Master-piece so to carry our business as we may keep Parliaments on foot for as long as they are frequent there will be no irregular power which though it cannot be broken at once yet in short time it will fade and moulter away there can be no total and final loss of Liberty but by loss of Parliaments as long as they last what we cannot get at one time we may have at another Let no man think that what I have said is the language of a private end my aim is upon the good success of the whole for I thank God my minde stands above any fortune that is to be gotten by base and unworthy means No man is bound to be rich or great no nor to be wise but every man is bound to be honnest out of which heart I have spoken The Lord KEEPERS speech 28. April 1628. MY Lords Knights and Burgesses of the House of Commons I cannot but remember the great and important affairs concerning the safety both of State and Religion declared at first from his own mouth to be the cause of assembling this Parliament the fear whereof as it doth dayly increase with his Majesty so it ought to do and his Majesty doubts not but it doth so with you since the danger encreaseth every day both by effluction of time and preparation of the enemy Yet his Majesty doth well weigh that this expence of time hath been occasion by the debate that hath risen in both Houses touching the Liberty of both Subjects in which as his Majesty takes in good part the purpose and intent of the Houses so clearly and frequently professed that they would not 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 Statute 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 Staâ—â—tes 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 itâ— 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. HACK VVELL 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
being deducted to the several Counties and Sea-Towns of the Kingdom according to the burthen of their shipping and not particularly to such Counties or Sea-Towns unto which the Squadron of Ships belongeth that shall send in the said Prizes That it shall not be Lawfull for any in the said Ships to break take or open the deck of any Prizes they take but nail them down fast untilâ— they be brought in at one of the Port-Towns aforesaid and the Officers for the King with the Commissioners for the Counties to take and open them That after the Kings part is sequestred with such allowance over and above as shall be proportionable for the Kings ships being Admirals the rest to be distributed as aforesaid to the use and benefit of all the Counties and Sea-Towns in general not in particuler to such Counties and Sea-Towns unto which any of the said 4. Squadrons belongeth that sendeth in the said Prizes the Pillage above deck onely excepted which do belong unto the Officers Saylors and Souldiers of the Squadron that took the said Prize That for the speedy and present execution hereof every County or Sea-Town that is not furnished with shipping accordingly shall hire untill they can build which to be limmited to perform within a certain and convenient time The charge that will fall on the Subjects yearly will amount for the first year 200000. l. which God prospering them within the year they will re-inburse and by the benefit of the Prizes afterwards they will have stock sufficient with increase for new victualling forth the Ships the first year and so from time to time The Kingdom will hereby encrease their shipping breed and make good store of good Sea-men and we shall hereby be Masters of the Sea so as our Merchants shall travel safely and we shall much prejudice the French and Spanish Nation or any others that are Enemies and not in League Judge ANDERSON DIverse Persons fueront Committes a sevâ—ral temps a several Persons sur pleasur sans bon cause parte de queâ—x estiant ameâ—nes en en banck le Roy parte en le Comune banck fueront accordant a le ley de la terre mise a large discharge de lâ— inprisonment pur que aschunt grands fueront offendus procure vn comandment a les Iudges que ils be ferra issent apres Ceo nient meins les Iudges ne surcease mes pâ—r advise enter eux ils fesoient certanie Articles le tenour de queux ensue deliver eux al seignieures Chauncellor Treasurer eux subscribe 〈◊〉 touts lour manies les Articles â—ont coe ensuâ—nt WE her Majesties Justices of both Benches and Barons of the Exchequer desire your Lordships that by some good means some order may be taken that her Highness Subjects may not be committed or dâ—tained in Prison by commandment of any Noble Man or Councellor against the Laws of the Realm either help us to have access to her Majesty to the end to become â—uitors to her for the same for divers 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 upon 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
Lords viam faustam both to his Majesty and your Lordships and to our selves for my Lords this is the greatest bond that any Subject can have in Parliament verbum Regis that is an high point of Honour but this shall be done by the Lords and Commons and assented to by the King in Parliament This is the greatest obligation of all and this is for the Kings Honour and our safety And therefore my Lords we have drawn a form of a Petition desiring your Lordships to concur with us herein for we come with an unanimous consent of all the House of Commons for there is great reason your Lordships should do so because that your Lordships be involved in the same condition commune periculum and so I have done with the first part And now I shall be bolde to read that which we have so agreed on I shall desire your Lordships that I may read it The Petition of Right to the KINGS most Excellent Majesty HUmbly sheweth unto our Soveraign Lord the King the Lords spiritual temporal and Commons in this present Parliament assembled That whereas it is declared and enacted by a Statute made in the time of the Raign of King Edw. 1. commonly called Statutum de tallagio non concedendo That no Tollage or aid should be laid or levied by the King or his Heirs in this Realm without the good will and assent of the Arch-Bishop Earles Barons Knights Burgesses and others the freemen of the Cominalty of this Realm And by Authority of Parliament holden in the 13. year of the Raign of King Ed. 3. it is declared and enacted that from thence-forth no Persons should be compelled to make any loan to the King against his will because such loans were against reason and the Franchises of the Land And by other Laws of this Realm it is provided that none should be charged by any charge or imposition called a Benevolence nor by such like charge by which the Statutes before mentioned and other the good Laws and Statutes of this Realm your Subjects have inherited this freedom that they should not be compelled to Contribute to any Tax Tollage Aid or other like charge not set by common consent in Parliament Yet nevertheless of late divers Commissions directed to sundry Commissioners in several Countreys with instructions have issued by means whereof your people have been in divers parts assembled and required to lend certain summes of money to your Majesty And many of them upon refusal so to do have had an unlawfull Oath administred unto them not warrantable by the Laws and Statutes of this Realm and have been constrained to become bound to make appearance and give attendance before your privy Councel and in other places And others of them have been therefore imprisoned confined and sundry other wayes molested and disquieted and divers other charges have been laid and levied upon your people in several Countreys alleadging some superior by Lord Lieutenants Deputy Lieutenants Commissioners for Musters Justices of Peace and others by command or direction against the Laws 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 â—mprisoned 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 an 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
and it is acknowledged by the ordinary answers of your Majesties predecessors in their assent to the Bills of subsedy of Tonnage and Poundage That it is of the nature of other subsedies proceeding from the good will of the Subject Very few of your predecessors had it for life until the raign of Hen. 7. who was so far from conceiving he had any right thereunto that although he granted commissions for collecting certain duties and customes due by Law yet he made no commissions for receiving the subsedy of Tonnage and Poundage untill the same was granted unto him in Parliament Since his time all the Kings and Queens of England have had the like grants for life by the free love and good will of the Subject And whensoever the people have been grieved by laying any imposition or other charges upon their goods or Merchandizes without Authority of Law which hath been very seldom yet upon complaint in Parliament they have been forthwith relieved saving in the time of your Royal Father who having through ill Councel raised the rates and charges of Merchandizes to that height at which they now are was yet pleased to yield so far to the complaint of his people as to offer that if the vallue of those impositions which he had set might be made good unto him he would himself and his Heirs by act of Parliament be bound never to lay any other which offer the Commons at that time in regard of the great burthen did not yield unto Nevertheless your Loyal Commons in this Parliament out of their especiall zeal to your service and special regard to your pressing occasions to take into their considerations so to frame a grant of subsedy of Tonnage and Poundage to your Majestie that both you might have been the better enabled for the defence of your Realm and your Subjects from being secure from all undue charges might be the more incouraged chearfully to proceed in their course of Trade by the encrease whereof your Majesties profit and likewise the strength of the Kingdom would be very much augmented But not being now able to accomplish this their desire there is no course left unto them without manifest breach of their duty both to your Majesty and the Countrey save onely to make this humble declaration that the receiving of Tonnage and Poundage and other impositions not granted by Parliament is a breach of the fundamentall Liberties of this Kingdom and contrary to your Majesties Royal Answer to the said Petition of Right And therefore they do most humbly beseech your Majestie to forbear any further to receive the same and not to take it in ill part from those of your Majesties loving Subjects who shall refuse to make payment of any such charges without warrant of Law demanded And as by this forbearance your most Excellent Majestie shall maniâ—est unto the world your Royal Justice in the observance of your Laws So they not doubting but that hereafter at the time appointed for their coming together again they shall have occasion to express their great deâ—ire to advance your Majesties Honour and profit A Letter which was found among some Jesuits that were lately taken at London and addressed to the Father RECTOR at BRUXILLS FAther Rector let not the damp of astonishment seiz upon your most ardent and zealous soul in apprehending the sudden and unexpected calling of the Parliament we have not opposed but rather furthered it so that we hope as much in this Parliament as ever we feared in Queen Elizabeths dayes You must know the Councel is ingaged to assist the King by the way of Prerogative in case the Parliamentary way should fall You shall see this Parliament will resemble the Pellicane which takes a pleasure to dig out with her beake her own bowels The election of the Knights and Burgesses have been in such confusion and by such apparant faction as that which we were wont to prove heretofore with much art and industry when the Spanish match was in treaty now it breaks out naturally as a botch or boyl and spets and spews out his own ranckor and venom You may remmber how that most Famous and Immortall Statesman the Count of Gondomar fed King Iames his fancy and rocked him asleep with the soft and sweet sound of Peace to keep up the Spanish Treaty Likewise we were much bound to some eminent Statesmen of our own Countrey to gain time in procureing those advantagious Sessions of Arms in the Pallatinate and in admiring the worth and Honour of the Spanish Nation and vilifying the Hollanders remonstrating to King Iames that State was most ungratefull both to his predecessor Queen Elizabeth and his Sacred Majestie that that State was more obnoxious then the Turk and perpetually injured his Majesties Subjects in the East Indies and likewise they had usurped from him the regallitie of the narrow seas in fishing upon the English coasts Had the Spanish match taken effect which was broken by the heat and violence of your furious Enemy the Duke of Buckingham certainly if King Iames had diserted the Hollanders Those great Statesmen had but one means to further their great and good designes which was to seiz on King Iames that none but the Puritans faction that plotted nothing but Annarchy and his confusion were advanced to this most happie Union We steered on the came course and have made use of Annarchall election and have prejudicated and anticipated the great one the Duke of Buckhingham that none but the Kings Enemies and his are chosen of the Parliament and that the Parliament vows to begin where they have left and will never give over till they have exterpated him and his posteritie On the other side the same parties who are to be admired for their indefitigable industrie incessantly foment revenge and jelousie in most of the Parliament men and especially they work upon the pride and vain glory of such as have been imprisoned acknowledging that they are the onely Martires and Worthies of the Country London is as much distempered as ever Florence was for the companies are at great odds and the common Councel have opposed the Magistrates against the old custom in the election of the Knights which hath bred a great heart burning in the City that twice a day we can divulge what we list in Pauls and upon the Exchange we have already rendered our irreconciliable Enemy the Duke as odious as a Toad so the people are apt to believe any thing against him We hope to be revenged on that Ball of Wilde-fire the Duke shortly and quench his fury you shall see the same sword that hath wounded us drawn upon the wound with an oyl that we have annointed it shall make us whole and this shall be done the Parliament is a great ship that hath dashed twice against the same rock and we have so wrought upon the several complexions of Parliament-men in charging the most temporate and wiser sort that the best way to
his Majesty and so they put him upon designes that stand not with publick liberty that he commands what he lifts with Lives Goods and Religion and doth as he pleaseth and so they involve all true hearted English-men and Christians under the name of Puritans and so make their quarrel to be his Majesties which is treason of the highest quality Tuesday 27. A Petition was exhibited concerning one Lewis that said about the 25 of December The Devill take the Parliament which was avowed by 2 witnesses It was resolved to be an offence to the Parliament and it was ordered he should be sent for SIr Nathaniel Rich tendered a Petition touching the Fast which was agreed to be preferred to the King It was ordered that a conference should be desired with the Lords about this Petition who were desired to joyn with the lower House which was done accordingly THe King sent a Message by Secretary Cooke to this effect viz. That his Majesty understanding that the Remonstrance was called for to take away all question commanded me to deliver it to you but hopeth that you proceed with the Bill of Tonnage and Poundage and give precedence to that business and to give an end to further dispute between some of his Subjects or else he shall think his Speech that was with a good applause accepted had not that good effect which he expected But before his Messege there was a report made by Mr. Pym for a Committee for Religion where a motion was made about the Remonstrance the last Session concerning that part which toucheth Religion and the Clark answered that by command from the King he delivered it to the Lord Privy Seal and so the Committee proceeded no farther SIr Walter Earl replied to the Message The last part of the Message calls me up For point of precedency Religion challeâ—geth the precedence and the right of our best endeavors Vbi dolor ibi digitus I know justice and liberty is Gods cause but what will justice and liberty do when Popery and Arminianisme joyn hand in hand together to bring in a Spanish Tyranny under which those Laws and liberties must cease What hath been done for Religion since the last Session We know what declarations have been made what persons have been advanced what truthes confirmed by all Authority of Church Councels and King For my part I will forgo my life and estate and liberty rather than my Religion And I dare boldly affirm that never was more corruption between Religion and matters of state than is at this present time Humana consilia castigantur ubi coelestibus se praeferunt Let us hold our selves to method and that God that carried us through so many difficulties the last Parliament Session will not be wanting to us now Mr. Corrington LEt us not do Gods work negligently We receive his Majesties Message withall duty for our proceedings let us so proceed as it may soonest conduce to his Majesties desire Unity concerns all of us the unity of this house is sweet especially in Gods cause let us cry and cry again for this let us be resolved into a Committee and presently fall to debate thereof UPon Mr. Pyms motion It was ordered that Religion should have the precedency and that the particulars before named should be taken into consideration by a Committee of the whole House Wensday 28. Secretary COOKE delivered another Message from his Majesty HIs Majesty upon occasion of dispute in this House about Tonnage and Poundage was pleased to make a gracious declaration wherein he commended unto us the speedy finishing thereof and to give precedency thereto and since his Majesty understanding the preferring the Cause of Religion his Majesty expected rather thanks than a Remonstrance yet he doth not interrupt you so you do not intrench upon that which doth not belong unto you But his Majesty still commanded me to tell you that he expects precedency in Tonnage and Poundage assuring himself he hath given no occasion to put it back and so you will not put it off To this Mr. Long replied I Cannot see but with much sorrow how we are still presed to this point I hoped those near the Chair would have truly informed his Majesty of our good intentions but we see how unhappy we are still some about his Majesty makes him diffident of us Sir Thomas Edmonds I am sorry this House hath given occasion of so many Messages about Tonnage and Poundage after his Majesty hath given us a full satisfaction You may perceive his Majesty is sensible of the neglect of his business we that know this should not discharge our duties to you if we should not perswade you to that course which should procure his Majesties good opinion of you Your selves are witnesses how industrious his Majesty was to procure you gracious Laws in his Fathers time and since that what enlargement he hath made of our liberties and yet still we give him cause to repent him of the good he hath done Consider how dangerous it is to Alienate his Majesties heart from Parliamens Mr. Corington When men speak here of neglect of duty to his Majesty let them know we know no such thing nor what they mean I see not how we do neglect the same I see it is all our hearts to expedite the Bill of Tonnage and Poundage in due time our business is still put back by these Messages and the business in hand is of God and his Majesty Things are certainly amiss and every one sees it and wo be to us if we present them not to his Majesty Sir Iohn Elliot His Speech to the same effect IT was ordered that a Committee should be appointed to pen an Answer to his Majesties Message and shew that it is their resolution to give him all expeditions in his service and that they hold it fit not onely to give him thanks but further to shew what perill we are in and that Tonnage is their own gift and it is to arise from themselves and that they intend not to enter into any thing that belongs not unto themselves Thursday 29. THe former part of the day was spent in dilating of the transportation of corn and victuals into Spain and it was ordered that Message should be sent to his Majesty that it is now evident that diverse ships are bound for Spain and to desire a stay of them After the House sat at a Committee about Religion after long debate it was resolved by the Commons-House as before Friday 30. THe House received an answer from his Majesty touching the Ships which was that he would consider of it and send them an answer in due time Also this day a Committee of the Lower-House went to the King in the Privy-Chamber with the Petition for the Fast and the Arch-Bishop of York after he had made a short Speech presented it to his Majesty in the name of both Houses To which the King answered Munday Febr. 2. THe Lower-House presented a declaration
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 House saith he took Mr. Rolles goods by virtue of a Commission under the great Seal and other warrants remaining in the hands of Sir Iohn Elliot That he knew Mr. Rolles to be a Parliament man and Mr. Rolles demanded his Priviledge but he did understand his Priviledge to extend onely to his person not to his goods Mr. Dawes further saith he took those goods for such duties as were due in King Iames his time and that the King sent for him on Saturday last and commanded him to make no other answer Mr. Carmarthen another Customer called in saith he knew Mr. Rolles to be a Parliament man and that he told Mr. Rolles he did not find any Parliament man exempted in their Commission and if all the bodie of this House were in him he would not deliver the goods if he said he said he would not it was because he could not Mr. Wansforth That the delinquence of these men may be declined for the present and that we may first go to the King by way of Remonstrance considering the matter from whence this did arise If it were a single Priviledge it were easily determined Mr. Selden If there be any near the King that misâ—â—â—sents our actions let the curse light on them and not on us And 〈◊〉 it it is high time to right our selves and untill we vindicate our selves in this it will be in vain to sit here Sir Nathaniel Ritch moveth not to proceed in this untill it be by a select Committee considered in regard the King himself gave order to stay these goods though the goods of a Parliament man Sir Iohn Eliot The heart-bloud of the Libertie of the Common-wealth receiveth its life from the Priviledge of this House Resolved by question that this shall be presently taken into consideration And being conceived a business of great consequence It is Ordered That the House shall be dissolved into a Committee for the more freedome of debate Mr. Harbert in the Chair of that Committee Friday 20. A Petition of Complaint of a Conspiracie against a mans life by the Lord Deputie of Ireland and others to get the estate of the Petitioner to their own use Which is referred to the Committee for Justice Sir Iohn Worsnam another of the Customers called in saith he was commanded from the King that the goods were taken for duties and no more that he was sought to to Farm the Customs and told the King being sent for to him that he was not willing to deal therein untill the Parliament had granted the same Mr. Selden Conceiveth the case of these three Customers do differ in the degrees of their offences First for Sir Iohn Worsnam whatever he saith here he hath often confessed the goods were taken for Tonnage and Poundage so that as he broke the Priviledge in taking the goods so likewise his swearing one thing and the contrarie plainly appeareth upon proof and his own confession Mr. Dawes his cause differeth onely in this Sir Iohn Worsnam is a Patentee and Dawes onely a sharer Mr. Carmarthens cause differeth in saying if all the Parliament were in him he would not deliver his goods Ordered that Worsnams case shall be first decided And first the point is Whether by the Lease Sir Iohn Worsnam having seised the goods hath interest or no or whether he be onely an accounter to the King or not Mr. Glanvile Here is a sum of money advanced a Lease granted for certain years a certain Rent reserved and though there be a covenant to these men that if there be less it shall be abated yet that cannot take away their interest The substance of the offences made by the Customers in the Exchequer is that the goods of the Merchants seised by them and remaining in the Kings Store-house were seised onely for duties to the King mentioned in a Commission under the Kings signet and that themselves the Customers had no interest nor pretence of interest Saturday 21. A Petition by Mr. Thomas Symons in further complaint of the Customers and the Two shillings Six pence upon the Currants granted to the Lord Arrundell which is referred to the Committee for Merchants Sir Robert Pye saith The Lord of Arrundell hath delivered in his Pattent to the King two months since At the Committee for Merchants MAster Littleton argued whether a Member of the House hath his goods priviledged upon a Prorogation being seised for the King All Priviledge is allowed for the good of the Common-wealth and the Parliament Priviledge is above any other the Parliament onely can decide Priviledge of Parliament not any other Judge or Court whatsoever That a man may not distrain for rem in Parliament time but for all arrears after the Parliament he may distrain he is not to be imployed in any action personal nor his goods to be seised in the Exchequer A Record and Act of Parliament by Petition that because the servant of a Member of the Parliament is in the Kings Royal protection that it might be High Treason to kill a Parliament man and the King answered affirmatively which made it a Law And for the Judges to determin priviledge of Parliament were to supersede the Law and make it void For the Prorogation the Priviledge stands good untill the day of Prorogation notwithstanding a Proclamation of a new Prorogation That the King is never so high in point of State as in the Parliament Citeth the case of Sir Robert Howard in High Commission All Priviledges unless in Felonie Treason or breach of Peace Sir Robert Phillips Thus you see how fast the Prerogative of the King doth trench on the Libertie of the Subject and how hardly recovered Citeth many Presidents wherein the goods of a Member of the Parliament were Priviledged from seizure in the Exchequer In 19 Eliz. it was resolved in Parliament that 20 days before and 20 days after was the time of Priviledge Chancellor of the Dutchie That in this debate we may tie our selves to point of Law and Authoritie not to point of Reason And conceiveth that