afterwards be attainted yet the King shall not have them untill he have satisfied that for which they were distreined And if in these Cases where the owners of the goods are such capitall offendours the King cannot have them much lesse shall he have them when the owner is innocent and no offendour Nay I may well say that almost every leaf and page of all the volumes of our Common Law prove this right of propriety this distinction of meum and tuum aswell between King and Subject as one Subject and another and therefore my Conclusion follows that if the Prerogative extend not neither to Lands nor to Goods then à fortiori not to the Person which is more worth then either lands or goods as I said And yet I agree that by the very law of Nature service of the Person of the Subject is due to his Soveraigne but this must be in such things which are not against the law of Nature but to have the body imprisoned without any cause declared and so to become in bondage I am sure is contrary unto and against the law of Nature and therefore not to be inforced by the Soveraigne upon his Subjects 3. My next reason is drawn ab inutili incommodo For the Statute de frangentibus prisonam made 1 E. 2. is quod nullus qui prisonam fregerit subeat judicium vitae vel membrorum pro fractione prisonae tantum nisi causa pro qua captus imprisonetur tale Iudicium requirat Whence this Conclusion is clearly gathered That if a man be committed to prison without declaring what cause and then if either Malefactour do break the prison or the Gaoler suffer him to escape albeit the prisoner so escaping had committed Crimen laesae majestatis yet neither the Gaoler nor any other that procured his escape by the Law suffer any corporall punishment for setting him at large which if admitted might prove in consequence a matter of great danger to the Common-wealth 4. My next reason is drawn ab Regis honore from that great honour the Law doth attribute unto soveraigne Majesty and therefore the Rule of Law is that Solum Rex hoc non potest facere quod non potest juste agere And therefore if a Subject hath the donation and the King the presentation to a Church whereunto the King presents without the Subjects nomination here the quare impedit lies against the Incumbent and the King is in Law no disturber And Hussey chief Justice in 1 H. 7. fol. 4. saith that Sir Iohn Markham told King Edw. 4. he could not arrest a man either for treason or fellony as a Subject might because that if the King did wrong the party could not have his Action against him What is the reason that an Action of false imprisonment lies against the Sheriff if he doth not return the Kings Writ by which he hath taken the body of the Subject but this because the Writ doth breviter enarrare causam captionis which if it doth not it shall abate and is void in Law and being returned the party when he appears may know what to answer and the Court upon what to judge And if the Kings Writ under his great Seal cannot imprison the Subject unlesse it contains the cause shall then the Kings warrant otherwise doe it without containing the cause that his Judges upon return thereof may likewise judge of the same either to remain or judge the partie imprisoned I should argue this point more closely upon the statute of Magnae Charta 29. quod nullus liber homo imprisonetur the statute of West 1. cap. 15. for letting persons to bail and the Judgements lately given in the Kings Bench but the later of these statutes referring having been by that honourable Gent. to whom the Professours of the Law both in this and all succeding ages are and will be much bound already expounded unto us and that also fortified by those many contemporary Expositions and Judgements by him learnedly cited and there being many learned Lawyers here whose time I will not waste who were present and some of them perhaps of councell in the late Cause adjudged in the Kings Bench where you to whose person I now speak do well know I was absent being then of councel in a cause in another Court and my practice being in the Country farre remote from the treasure of Antiquity and Records conducing to the clearing of this point Therefore the narrowness of my understanding commends unto me sober ignorance rather then presumptuous knowledge and also commands me no further to trouble your Patience But I will conclude with that which I find reported of Sir Iohn Davis who was the Kings Serjeant and so by the duty of his place would no doubt maintain to his uttermost the Prerogatives of the King his royall Master and yet it was by him thus said in those Reports of his upon the case of Tavistry Customs That the Kings of England alwayes have had a Monarchy Royall and not a Monarchy Seignorall where under the first saith he the Subjects are Free-men and have propriety in their goods and free-hold and inheritance in their Lands but under the later they are as Villains and Slaves and have proprietie in nothing And therefore saith he when a Royall Monarch makes a new Conquest yet if he receives any of his Nations ancient Inhabitants into his protection they and their heirs after them shall enjoy their Lands and Liberties according to the Law And there he voucheth this President and Judgement following given before William the Conquerour himself viz. That one Sherborn at the time of the Conquest being owner of a Castle and lands in Norfolk the Conquerour gave the same to one Warren a Norman and Sherborn dying the Heir clayming the same by descent according to the Law it was before the Conquerour himself adjudged for the Heir and that the gift thereof by the Conquerour was void If then it were thus in the Conquerour's time by his own sentence and judgement and hath so continued in all the successions of our Kings ever since what doubt need we have but that his most excellent Majestie upon our humble petition prostrated at his feet which as was well said is the best passage to his heart will vouchsafe unto us our ancient Liberties and Birthrights with a through reformation of this and other just grievances And so I humbly crave pardon of this honourable House that I have made a short Lesson long Sir Benjamin Ruddier's Speech March 22. 1627. Mr. Speaker OF the mischiefs that have lately fallen upon us by the late distractions here is every man sensible and that may ensue the like which God forbid we may easily see and too late repent The eyes of Christendome are upon us and as we speed here so go the Fortunes of our selves our Friends and of our Religion That the Dangers were not reall but pretended we all heartily wish but feel the contrary
of Justice And thereupon the Statutes cannot be intended to restrain all commitments unlesse a cause be expressed for that it would be very inconvenient and dangerous to the State to publish the cause at the very first Answer Hereupon it was replied by the House of Commons that all danger and inconvenience may be avoided by declaring a generall Cause as for treason suspicion of treason misprision of treason or fellony without specifying the particular which can give no greater light to a Confederate then will be conjectured by his very apprehension upon the imprisonment if nothing at all were expressed It was further alledged that there was a kind of contradiction in the position of the Commons when they say the partie committed without a cause shewed ought to be delivered or bailed Bailing being a kind of imprisonment Delivery a totall freeing To this it was answered that it hath alwayes been the discretion of the Judges to give so much respect to a Commitment by the Command of the King or the Privie Councell which are ever intended to be done on just weightie Causes that they will not presently set him free but baile him to answer what shall be objected against him on his Majesties behalf But if any other inferiour Officer commit a man without a cause shewed they do instantly deliver him as having no cause to expect their pleasure So the Delivery is applyed to an imprisonment by the command of some mean minister of Justice Bailing when it is done by the Command of the King or his Councell It was said by M r Attorney That Bailing was a grace and favour of a Court of Justice and that they may refuse to do it This was agreed to be true in divers cases as where the case doth appeare to be for fellony or other crimes expressed for that there is another way to discharge them in some convenient time by their triall yet in some of these cases the constant practise hath been anciently modernly to baile them But where no cause of the imprisonment is returned but the Command of the King there is no way to deliver such persons by triall or otherwise but that of the habeas Corpus and if they should be then remanded they may be perpetually imprisoned without any remedy at all and consequently a man that had committed no offence be in worse case then a great Offender for the latter should have an ordinarie triall to discharge him the other should never be delivered It was further said that though the Statute of Westm. 1. cap. 15. as a Statute by way of provision did extend only to the Sheriff yet the recitall of that Statute touching the 4 cases wherein a man was not replevisable at the Common Law namely those that were committed for the death of a man by the command of the King or the Justices or for the Forrest did declare that the Justices could not baile such a one and that Replevisable and Bailable were Synonyma and all one and that Stamford a Judge of great authority doth expound it accordingly and that neither the Statute nor he sayes replevisable by the Sheriff but generally without restraint and that if the Chief Justice commits a man he is not to be enlarged by another Court as appeareth in the Register To this it was answered First that the recitall and body of the Statute relates only to the Sheriff as appeareth by the very words Secondly that replevisable is not restrained to the Sheriffs for that the words import no more that a man committed by the Chief Justice is bailable by the Court of Kings Bench. Thirdly that Stamford meaneth all of the Sheriff or at least he hath not sufficiently expressed that he intended the Justices Fourthly It was denyed that Replevisable and Bailable were the same for they differ in respect of the place where they are used Baile being in the Kings Court of Record Replevisable before the Sheriff and they are of severall natures Replevisable being a letting at large upon Sureties Bailing being when one Traditur in ballium and the Baile are his Gaolers and may imprison him and shall suffer bodie for bodie which is not true of replevying by sureties And Baile differeth from Mainprize in this that Mainprize is an undertaking in a summe certain Bailing is to answer the condemnation in Civil causes and in Criminall body for body The reasons and authorities used in the first Conference were then renewed and no exception taken to any save in 22. H. 6. it doth not appear that the Command of the King was by his mouth which must be intended or by his Councell which is all one as is observed by Stamford for the words are these That a man is not replevisable by the Sheriff who is committed by the Writ or Commandment of the King 21. E. 1. rot 2. dorso was cited by the Kings Counsell But it was answered that it concerned the Sheriff of Leicester only and not the power of the Judges 33. H. 6. the Kings Attorney confesseth was nothing to the purpose and yet that Book hath been usually cited by those that maintain the contrary to the Declaration of the House of Commons And therefore such sudden opinion as hath been given thereupon is not to be regarded the foundation failing And where it was said that the French of 36. E 3. Rot. Parliament 9. which can receive no answer did not warrant what was inferred thence but that these words Sans disturbance mettre ou arrest faire et le contre par special commandment ou en autre maniere must be understood that the Statutes should be put in execution without putting disturbance or making arrest to the contrarie by speciall command or in other manner The Commons did utterly deny the interpretation given by the Kings Counsell and to justifie their own did appeal to all men that understood French and upon the 7 Statutes did conclude That their Declaration remained in undoubted truth not controlled by any thing said to the contrary The true Copies of the Records not printed which were used on either side of that part of the debate INter Recorda domini Regis Caroli in Thesauro Recepto Scacarii sui sub custodia domini Thesaurarii et Camerarii ibidem remanentia viz. placita coram ipso Domino Rege Concilio suo ad Parliament suum post Pascham apud London in Mâ—nerio Archipiscopi Ebor Anno Regni Domini Regis Edw. vicessimo primo inter alia sie continetur ut sequitur Rot. secundo in Dorso Vic. Leic. sci Stephanus Rubaz Vic. Leic. War coram ipso Domino Rege ejus concilio arianatus ad Levem positus de hoc quod cum Io. Botetourte Edel Hatche W. Hemelin nuper in ballium ipsius vicecom per Dominum Regem fuissent assignati and Goalas Domini Regis celiberandum eidem vic quendam W. de Petling per quendam Appellatorem ante adventum eorundam Justic. ibidem
as it is called also The first two are Writs to be directed to the Sheriff of the Countie and lye only in some particular cases with which it would be untimely for me to trouble your Lordships because they concern not that which is committed to my charge But that Writ of habeas Corpus or Corpus cum causa is the highest remedy in Law for him that is imprisoned by the speciall command of the King or of the Lords of the Councell without shewing cause of the commitment Neither is there any such thing in the Lawes of this Land as a Petition of Right to be used in such cases for the Liberty of the person nor is there any other legall Course to be taken for enlargement in such cases howsoever the contrary hath upon no ground or colour of Law been pretended Now my Lords if any man be so imprisoned by any such command or otherwise in any prison whatsoever through England and desire either by himself or any other in his behalf this Writ of habeas Corpus for the purpose in the Court of King's Bench the Writ is to be granted to him and ought not to be denied him no otherwise then any ordinary originall Writ in the Chauncery or other common processe of Law may be denyed Which amongst other things the House of Commons hath resolved also upon mature deliberation and I was commanded to let your Lordships know so much This Writ is to be directed to the Keeper of the Prison in whose custody the Prisoner remaines commanding him that at a certain day he bring in the body of the Prisoner ad subjiciendum recipiendum juxta quod Curia consideraverit una cum causa captionis detentionis and oftentimes una cum causa detentionis only captionis being omitted The Keeper of the Prison thereupon returnes by what Warrant he detaines the Prisoner and with his Return filed to his Writ brings the Prisoner to the Barre at the time appointed When the Return is thus made the Court judgeth of the sufficiency or insufficiency of it only out of the body of it without having respect to any other thing whatsoever that is they are to suppose the Return to be true whatsoever it be For if it be false the party may have his remedy by action on the case against the Gaoler that brings him Now my Lords when this Prisoner comes thus to the Barre if he desires to be bailed and that the Court upon view of the Return think him in Law to be bailed then he is alwayes first taken from the Keeper of the Prison that brings him and committed to the Marshall of the Kings Bench and afterwards bailed and the Entrie perpetually is Committitur Marr. postea traditur in ballium For the Court never bailes any man untill he becomes their own Prisoner and be in custodia Marescalli of that Court. But if upon return of the habeas Corpus it appears to the Court that the Prisoner ought not to be bailed nor discharged from the Prison whence he is brought then he is remanded or sent back again there to remain untill by Course of Law he may be delivered And the Entrie in such case is Remittitur quousque secundum legem deliberatus fuerit or Remittitur quousque c. which is all one and is the highest award or Judgement that ever was or can be given upon a habeas Corpus But if the Judges doubt only whether in Law they ought to take him from the prison whence he came or give daie to the Sheriff to amend his Return as often they do then they remand him only during the time of their debate or untill the Sheriff hath amended his Return and the Entrie upon it is Remittitur only or Remittitur prisonae predict without any more And so remittitur generally is of farre lesse moment in the award upon the habeas Corpus then remittitur quousque howsoever vulgar opinions raised out of the fame of the late Judgement be to the contrary All these things are of most known and constant use in the Court of Kings Bench as it cannot be doubted but your Lordships will easily know also from the grave and learned my Lords the Judges These two causes the one of the Entrie of Committitur Marescallo postea traditur in ballium and the other Remittitur quousque and Remittitur generally or Remittitur prisonae predict together with the nature of the habeas Corpus being thus stated it will be easier for me to open and your Lordships to observe whatsoever shall occurre to this purpose in the Presidents of Record to which I shall come in particular But before I come to the Presidents I am to let your Lordships know the resolution of the House of Commons touching the enlargement of any man committed by the command of the King or of the Privie Councell or of any other without cause shewed of such commitment It is thus That if a Free-man be committed or detained in prison or otherwise restrained by the Command of the King the Privie Councell or any other and no cause of such commitment detainer or restraint be expressed for which by Law he ought to be committed detained or restrained and the same be returned upon a habeas Corpus granted for the partie that then he ought to be delivered or bailed This resolution as it is grounded upon those Acts of Parliament already shewed and the reason of the Law of the Land which is committed to the charge of another and an one to be opened unto you is strengthened also by many Presidents of Record But the Presidents of Record that concerne this point are of two kinds for the House of Commons hath informed it self of such as concern it either way The first such as shew expresly that persons committed by the Command of the King or of the Privie Councell without any cause shewed have been enlarged upon Baile when they prayed it Whence it appeares cleerly that by Law they were bailable and so by habeas Corpus to be set at liberty For although they ought not to have been committed without cause shewen of their commitment yet it is true that the reverend Judges of this Land in former Ages did give such a respect to such commitment by Command of the King or of the Lords of the Councell as also to the commitments sometimes of inferiour persons that upon the habeas Corpus they rarely used absolutely to discharge the prisoners instantly but to enlarge them only upon Baile which sufficiently secures and preserves the Liberty of the Subject according to the Lawes that your Lordships have already heard Nor in any of these cases is there any difference made between any such commitments by the King and commitments by the Lords of the Councell that are incorporated with him The second kind of Presidents of Record are such as have been pretended to prove the Law to be contrarie and that persons so committed ought not
predictae doth not always imply or remaunding upon judgment or debate And this answer was given to this of Cesars Case that is the sixt of this Number The seventh is the Case of Iames Demetrius It was 12 Iacobi Rot. 153. Mr Attorney objected that this Demetrius and divers others being Brewers were committed per consilium Domini Regis to the Marshal-sea of the houshould and that upon the commitment so generally returned they were remaunded and that the Entry was immediate remittitur prefato Marescallo hospitii predicti where he observed that immediate shews that the Judges of that time were so resolved of this Question that they remaunded them partly as men that well knew what the Law was herein Here unto the Gentlemen of the House of Commons gave these answers First that the Remittitur in this Case is but as the other in Cesars and so proves nothing against them Secondly that immediate being added to it shews plainly that it was done without debate or any argument or consideration had of it which makes the authority of the presidents to be of no force in point of Law for Judgments and Awards given upon delibration onely and debate are Proofs and Arguments of weight and not any sudden Act of the Court without debate or deliberation And the Entry of immediate being proposed to Mr. Keeling it was confirmed by him that by that Entry it appears by this course that the remaunding of him was the self same day he was brought which as it was said by the Gentlemen of the House of Commons might be at the riseing of the Court or upon advisement and the like And this answer was given to this president of the Brewers The last of the 8. which Mr. Attorney objected is Saltonstals Case in the 13. Iacobi Regis He was committed per mandatum Dominorum Regis de privato Consilio and being returned by the Warden of the Fleet to be so remittitur prisonae predictae and in the 13. Iac in the same year remittitur generally in the Roll and these two make but one Case and are as one president To this the Gentlemen of the House of Commons answered that it is true the Rolls have such Entries of remittitur in them generally but that proves nothing upon the reason before used by them in Cesars Case But also Saltonstall was committed for another cause besides per mandatum Dominorum Consilii for a contempt against an order in Chauncery and that was in the return also And besides the Court as it appears in the Record gave several days to the Warden of the Fleet to mend his return which they would not have done if they had conceived it sufficient because that which is sufficient needs no amendment To this M r. Attorney replyed that they gave him a day to amend his return in respect of that part thereof that concerned the order in Chancery and not in respect of that which was per mandat Concilij But the gentlemen of the house of Commons answered That it appears not any where nor indeed is it likely at all nor can be so reasonably understood because if the other return per mandatum Concilij had been sufficient by it self it appears fully that the Court conceived the return to be insufficient And so the gentlemen of the Commons house concluded that they had a great number of presidents besides the Acts of Parliament and reasons of Common Law agreeable to their resolution and that there was not one president at all that made against them but indeed that almost all that were brought as well against them as for them if rightly understood 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 r Attorney 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 resolution 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 Arcanum Imperii for which he stood committed And to this also 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 touching imprisonment 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 Objections of other nature also he spake of the confidence that was shewed in 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 his Objections which as he conceived had so weakned the Argument of the Commons House that notwithstanding any thing yet Objected they were upon clear reason confident of the truth of their first resolution grounded upon so just
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 concourse 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 palaâ— 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 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 accorâ—ding to your desire give both life and motion to the Laws thaâ— stand in force against Iesuits Seminary Priests and all that havâ— taken Orders by authority of the Sea of Rome and to that end his Maâ—jesty 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
to be set at liberty upon Baile and are in the nature of Objections out of Record I shall deliver them summarily to your Lordships with all faith as also the true Copies of them Out of which it shall appear cleerly to your Lordships that of those of the first kind there are no lesse then twelve most full and directly in the point to prove that persons so committed are to be delivered upon baile and among those of the other kind there is not so much as one that proves at all any thing to the contrary I shall first my Lords go through them of the first kind and so observe them to your Lordships that such scruples as have been made upon them by some that have excepted against them shall be cleered also according as I shall open them severally The first of this first kind is of Edw. 3. time It is in Pasche 18. E. 3. Rot. 33. Rex The case was thus King E. 3. had committed by Writ that under his Great Seal as most of the Kings Commands in that time were one Iohn de Bidleston a Clergie-man to the prison of the Tower without any cause shewed of the commitment The Lieutenant of the Tower is commanded to bring him into the Kings Bench where he is committed to the Marshall But the Court asked of the Lieutenant if there were any cause to keep this Bidleston in prison besides that commitment of the King He answered No. Whereupon as the Roll saith Quia videtur Curiae breve predictum that is the Kings Command sufficientem non esse causam predictum Johannem de Bidleston in prisona Marr. Regis hic detinend idem Johannes dimittitur per manucaptionem Will. de Wakefield and some others Where the Judgement of the Court is fully declared in the very point The second of this first kind of Presidents of Record is in the time of H. the 8. One Iohn Parker was committed to the Sheriffs of London pro securitate pacis at the Suit of one Brinton ac pro suspicione fellonie committed by him at Cowall in Glocestershire ac per mandatum Dni Regis he is committed to the Marshall of the Kings Bench postea isto eodem Termino traditur in Ballium There were other causes of the commitment but plainly one was a Command of the King signified to the Sheriff of London of which they took notice But some have interpreted this as if the commitment here had been for suspicion of fellony by command of the King in which case it is agreed of all hands that the Prisoner is bailable But no man can think so of this President that observes the Contents and understands the Grammar of it wherein most plainly ac per mandatum Regis hath no reference to any other cause whatsoever but is a single cause enumerated in the Return by it self as the Record cleerly shewes It is in the 22. H. 8. Rot. 37. The third is of the same time It is 35. H. 8. Rot. 33. Iohn Bincks case He was committed by the Lords of the Councell pro suspicione fellonie ac pro aliis causis illos moventibus Qui committitur Marescallo c. et immediate ex gratia curiae special traditur in ballium They commit him for suspicion of fellony and other causes them thereunto moving wherein there might be matter of State or whatsoever else can be supposed and plainly the cause of the commitment is not expressed yet the Court bailed him without having regard to those other unknown causes that moved the Lords of the Councell But it is indeed somewhat different from either of those other two that precede and from the other nine that follow For it is agreed That if a cause be expressed in the return insomuch as the Court can know why he is committed that then he may be bailed but not if they know not the cause Now when a man is committed for a cause expressed pro aliis causis Dominos de Concilio moventibus certainly the Court can no more know in such a case 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 virorum honorabilis Concilii Dominorum Regis Reginae 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
speciali Nos volentes eisdem C. D. E. graciam in hac parte facere specialem tibi praecipimus quod si praedict C. D. E. occasione praedict non alia in Prisona praedict detineantur pro transgressionibus illis secundum legem consuetudinem Regni nostri Angliae replegiabiles existunt c. tunc impos C. D. E. Ã Prisona praedict si ea occasione non alia detineantur in eadem interim deliberari facias per manucapt supradict habeas ibi tunc coram praefat Iusticiar nomina manncapt illorum hoc breve And the exposition of this speciale mandatum domini Regis mentioned in the writ is expounded to be breue domini Regis and thereupon is this writ directed unto the Sheriffe for the delivery of them And so for the branch of the first part I conclude that the speciall command of the King without shewing the nature of the commandment of the Kings is too generall and therefore insufficient for he ought to have returned the nature of the commandment of the King whereby the Court might have adjudged upon it whether it were such a commandment that the imprisonment of Sir Iohn Corbet be lawfull or not and whether it were such a commandment of the King that although the imprisonment were lawfull at the first yet he might be bailed by Law And as for the generall return of speciale mandatum domini Regis without shewing the cause of the imprisonment either speciall or generall I hold that for that cause also the return is insufficient First in regard of the Habeas corpus which is the commandment of the King onely made the 15 of November According to the Teste of the writ commanding the keeper of the Gatehouse to have the body of Sir Iohn Corbet una cum causa detensionis ad subjiciendum recipiendum ea quae curia nostra de eo ad tunc ibid. ordinar contingat So as the commandment of the writ being to shew the cause of his detaining in prison the keeper of the gatehouse doth not give a full answer unto the writ unlesse the cause of the detainment in prison be returned and the Court doth not know how to giue their judgement upon him either for his imprisonment or for his discharge according to the purport of the writ when there is not a cause returned and forasmuch as upon an excommengement certified it hath been adjudged oftentimes that Certificates were insufficient where the cause of the commitment hath not been certified that the Court might adjudge whether the Ecclesiasticall Judges who pronounced the excommunication had power over the original cause according to the book of 14 Hen. 4.14.8 Rep. 68. Trollops case 20 Ed. 3. Excommengement 9. So upon an Habeas corpus in this Court where a man hath been committed by the Chancellour of England by the Councell of England Marches of Wales Warden of the Stanneries High Commission Admiralty Dutchy Court of request Commission of Sewers or Bankrupts it hath severall times been adjudged that the return was insufficient where the particular cause of imprisonment hath not been shewen to the intent that it might appear that those that committed him had jurisdiction over the cause otherwise he ought to be discharged by the Law and I spare to recite particular causes in every kind of these because there are so many presidents of them in severall ages of every King of this Realm and it is an infallible maxime of the Law That as the Court of the Kings Bench and Judges ought not to deny an Habeas corpus unto any prisoner that shall demand the same by whomsoever he be committed so ought the cause of his imprisonment to be shewn upon the return so that the Court may adjudge of the cause whether the cause of the imprisonment be lawfull or not and because I will not trouble the Court with so many presidents but such as shall suit with the cause in question I will onely produce and vouch such presidents whereas the party was committed either by the commandment of the King or otherwise by the commandment of the Privy Councell which Stampford fol. 72. tearmeth the mouth of the King such acts as are done by the Privy Councell being as Acts done by the King himself And in all these causes you shall find that there is a cause returned as well as a speciale mandatum domini Regis c. or mandatum Privati Concilii domini Regis whereby the Court may adjudge of the cause and bail them if they shall see cause In the eighth of Henry the seventh upon return of an Habeas corpus awarded for the body of one Roger Sherry it appeareth that he was committed by the Mayor of Windsor for suspicion of felony and ad sectam ipsius Regis pro quibusdam feloniis transgressionibus ac per mandatum domini Regis 21 Hen. the seventh upon the return of an Habeas corpus sent for the body of Hugh Pain it appeared that he was committed to prison per mandatum dominorum Privati Concilii domini Regis pro suspicione feloniae Primo Henrici Octavi Rot. 9. upon the return of an Habeas corpus sent for the body of one Thomas Harrison and others it appears that they were committed to the Earl of Shrewsbury being Marshall of the houshould Per mandatum Domini Regis pro suspicione feloniae pro homicidio facto super Mare 3 4 Philip. Mariae upon a return of an Habeas corpus sent for the body of one Peter Man it appeareth that he was committed pro suspicione feloniae ac per mandatum Domini Regis Reginae 4 5 Philippi Mariae upon the return of an Habeas corpus sent for the body of one Thomas Newport it appeared that he was committed to the Tower pro suspicione contrafact monetae per privatum Concilium domini Regis Reginae 33 Elizabethae upon the return of an Habeas corpus for the body of one Lawrence Brown it appeareth that he was committed per mandatum Privati Concilii dominae Reginae pro diversis causis ipsam Reginam tangen ac etiam pro suspicione proditionis So as by all these presidents it appeareth where the return is either Per mandatum domini Regis or Per mandatum dominorum Privati Concilii domini Regis there is also a cause over and besides the mandatum returned as unto that which may be objected that per mandatum domini Regis or Privati Concilii domini Regis is a good return of his imprisonment I answer First that there is a cause for it is not to be presumed that the King or Councell would commit one to prison without some offence and therefore this mandatum being occasioned by the offence or fault the offence or fault must be the cause and not the command of the King or Councell which is occasioned by the cause Secondly it apeares that the jurisdiction of
the Privy Councell is a limited jurisdiction for they have no power in all causes their power being restrained in certain causes by severall Acts of Parliament as it appeareth by the statute of 20 Edward the third c. 11. 25 Ed. the third c. 1. stat 4. the private petition in Parliament permitted in the 1 of R. 2. where the Commons petition that the Privie Councell might not make any Ordinance against the Common Law Customes or Statutes of the Realm the fourth of Henry the fourth ca. 3. 13 Hen. the fourth 7. 31 Henry the sixth and their jurisdictions being a limited jurisdiction the cause and grounds of their commmitment ought to appear whereby it may appear if the Lords of the Councell did commit him for such a cause as was within their jurisdiction for if they did command me to be committed to prison for a cause whereof they had not jurisdiction the Court ought to discharge me of this imprisonment and howsoever the King is Vicarius Dei in terra yet Bracton cap. 8. fol. 107. saith quod nihil aliud potest Rex in terris cum sit Minister Dei Vicarius quam solum quod de jure potest nec obstat quod dicitur quod Principi placet legis habet vigorem quia sequitur in fine legis cum lege Regia quae de ejus imperio lata est id est non quicquid de voluntate Regis temere praesumptum est sed animo condendi Iura sed quod consilio Magistratuum suorum Rege author praestant habita super hoc deliberatione tract rect fuer definit Potestat itaque sua juris est non injuriae The which being so then also it ought to appear upon what cause the King committeth one to prison whereby the Judges which are indifferent between the King and his Subjects may judge whether his commitment be against the Laws and Statutes of this Realm or not Thirdly it is to be observed that the Kings command by his Writ of Habeas corpus is since the commandment of the King for his commitment and this being the latter commandment ought to be obeyed wherefore that commanding a return of the body cum causa detentionis there must be a return of some other cause then Per mandatum domini Regis the same commandment being before the return of the Writ Pasch. 9. E. 3. pl. 30. fol. 56. upon a Writ of Cessavit brought in the County of Northumberland the Defendants plead That by reason the Country being destroyed by Warres with the Scots King Edward the second gave command that no Writ of Cessavit should be brought during the Warres with Scotland and that the King had sent his Writ to surcease the Plea and he averreth that the Warres with Scotland did continue Hearle that giveth the Rule saith That we have command by the King that now is to hold this Plea wherefore we will not surcease for any writ of the King that is dead and so upon all these reasons and presidents formerly alledged I conclude that the return that Sir Iohn Corbet was committed and detained in prison Per speciale mandatum domini Regis without shewing the nature of the commandment by which the Court may judge whether the commandment be of such a nature as he ought to be detained in prison and that without shewing the cause upon which the commandment of the King is grounded is not good As unto the second part which is Whether the time of the commitment by the return of the Writ not appearing unto the Court the Court ought to detain him in prison or no I conceive that he ought not to be continued in prison admitting that the first commitment by the command of the King were lawfull yet when he hath continued in prison by such reasonable time as may be thought fit for that offence for which he is committed he ought to be brought to answer and not to continue still in prison without being brought to answer For it appears by the Books of our Laws that liberty is a thing so favoured by the Law that the Law will not suffer the continuance of a man in prison for any longer time then of necessity it must and therefore the Law will neither suffer the party Sheriffs or judges to continue a man in prison by their power and their pleasure but doth speed the delivery of a man out of prison with as reasonable expedition as may be And upon this reason it is resolved in 1 2 El. Dyer 175. 8 Ed. 4.13 That howsoever the Law alloweth that there may be no term between the rest of an originall Writ and the return of the same where there is onely a summons and no imprisonment of the body yet it will not allow that there shall be a term between the rest of a Writ of Capias and the return of the same where the body of a man is to be imprisoned insomuch that it will give no way that the party shall have no power to continue the body of a man imprisoned any longer time then needs must 39 E. 3.7 10 H. 7.11 6 E. 4.69 11 E. 4.9 48 E. 3.1 17 E. 3.1 2 Hen. 7. Kellawaies Reports do all agree that if a Capias shall be awarded against a man for the apprehending of his body and the Sheriffe will return the Capias that is awarded against the party a non est inventus or that languidus est in prisona yet the Law will allow the party against whom it is awarded for the avoiding of his corporall pennance and dures of imprisonment to appear gratis and for to answer For the Law will not allow the Sheriffe by his false return to keep one in prison longer then needs must 38 Ass. pl. 22. Brooks imprisonment 100. saith That it was determined in Parliament that a man is not to be detained in prison after he hath made tender of his fine for his imprisonment therefore I desire your Lordship that Sir Iohn Corbet may not be kept longer in durance but be discharged according to the Law The substance of the Objections made by Mr. Attorney General before a Committee of both Houses to the Argument that was made by the House of Commons at the first conference with the Lords out of Presidents of Record and Resolutions of Iudges in former times touching the Liberty of the person of every Freeman and the Answers and Replies then presently made by the House of Commons to these Objections AFter the first conference which was desired by the Lords and had by a Committee of both houses in the painted Chamber touching the Reasons Laws Acts of Parliament and Presidents concerning the Liberty of the person of every Freeman M r Attorney General being heard before the Committee of both houses as it was assented by the house of Commons that he might be before they went up to the conference after some preamble made wherein he declined the answering all Reasons of Law
before them and mature deliberation taken by them Now plainly in that case of the 13. Iacob there is not so much as pretence of any debate at Bar or Bench. All that is reported to have been is reported as spoken upon the sudden and can any man take such a sudden opinion to be of value against solemne debates and mature deliberation since had of the point and all circumstances belonging to it which have within this half year been so fully examined and searched into that it may well be affirm'd that the learned'st man whatsoever that hath now considered of it hath within that time or might have learned more reason of satisfaction in it then ever before he met with Therefore the sudden opinions of any Judge to the contrary is of no value here Which also is to be said of that opinion obviously delivered in the Commons House 18. Iac. as M r. Attorney objected out of the Journal book of the House But besides neither was the truth of that report of that opinion in the Journal any way acknowledged For it was said in behalf of the House of Commons that their Journals were for matter of order and resolutions of the House of such Authority as that they were as their Records but for any particular Mans opinion noted in any of them it was so far from being of any Authority with them that in truth no particular opinion is at all to be entered in them and that their Clerks offend when ever they do the contrary And to conclude no such opinion whatsoever can be sufficient to weaken the clear Law comprehended in these resolutions of the House of Commons grounded upon so many Acts of Parliament so much reason of Common Law and so many Presidents of Record and the resolution of all the Judges of England and against which no Law written not one President not one reason hath been brought that makes any thing to the contrary And thus to this purpose ended the next day of the Conference desired by the Lords and had by a Committee of both Houses The Proceedings against the Earle of SUFFOLK 14. April 1628. MR. Kerton acquainted the House how that the Earle of Suffolk had said to some Gentlemen that M r. Selden had razed a Record and deserved to be hanged for going about to set division betwixt the King and his Subjects And being demanded to whom the words were spoken he was unwilling to name any till by question it was resolved he should nominate him He then named S r. Iohn Strangwaies who was unwilling to speak what he had heard from the Earle but being commanded by the House and resolved by question he confessed That upon Saturday last he being in the Committee Chamber of the Lords the Earle of Suffolk called him unto him and said Sir Iohn will you not hang Selden To whom he said for what The Earle replied By God he hath razed a Record and deserves to be hanged This the House took as a great injury done to the whole House M r. Selden being imployed by them in the conference with the Lords in the great cause concerning the Liberty of the Persons of the Subjects The House presently sent S r. Robert Philips with a message to the Lords to this effect He expressed the great care the Commons had upon all occasions to maintain all mutual respect and correspondency betwixt both Houses Then he informed them of a great injury done by the Earle of Suffolk to the whole house and to M r. Selden a particuler Member thereof who by their Command had been imployed in the late conference with their Lordships That the House was very sensible thereof and according to former Presidents made them truly acquainted with it and demaunded Justice against the Earle of Suffolk he read the words saying they were spoken to Sir Iohn Strangwayes a Member of their House After a short stay the Lords called for the Messenger to whom the Lord Keeper gave this Answer He signified the great desire and care of their Lordships to maintain and increase the correspondencies betwixt both Houses and as a Testimony thereof they had partly taken into consideration the charge That the Earle of Suffolk being a Man of great place and Honour had voluntarily protested upon his Honour and Soul that there passed no such words as those from him to Sr. Iohn Strangwayes And the Lord Keeper wished that their Lordships speedy proceedings in this business might testifie their love and good will to the Commons House The next day being the 15. of April Sr. Iohn Strangwayes made a Protestation openly in the House wherein he avowed that notwithstanding the Earls denial he did speak those words positively unto him and would maintain it any way fitting a Member of that House or a Gentleman of Honour They ordered that this Protestation should be entered into the Journal book and that a Committee should take into consideration what was fit for the House to proceed to for the justification of S r. Iohn Strangwayes and what was fitting to be done in this Case and to examine Witness of the proof of the words Upon the 17. day S r. Iohn Elliot reported what the Committee had done That they had sent for and examined Sr. Christopher Nevill who related that upon Saturday being in the Lords Committee Chamber the Earle of Suffolk said thus to him Mr. Attorney hath cleared the business and hath made the cause plain on the Kings side and further said M r. Selden hath razed a Record and hath deserved to be hanged and the Lower House should do well to joyn with the Higher in a Petition to the King to hang him and added as a reason For Mr. Selden went about and took a course to divide the King from his people or words to that effect And being asked whether he conceived that those words of dividing the King from his people had relation to the whole and general action of M r. Selden before the Lords or to the particuler of razing a Record he conceived they were referred to the general action They had examined one M r. Littleton who confessed he heard the Earle of Suffolk speak to a Gentleman whom he knew not words to this affect viz. That he would not be in M r. Seldens Coat for 10000 l. and that M r. Selden deserved to be hanged The second part of this Report concerned the particuler of S r. Iohn Strangwayes wherein though the Committee found no Witness to prove the words spoken to S r. Iohn Srangwayes yet there were many circumstances which perswaded them of the truth thereof 1. That the same words in the same syllables were spoken to Sr. Christopher Nevill and that the Earle as he called to him S r. Iohn Strangwayes so he called to him Sr. Christopher Nevill 2. That the Earle of Suffolk called S r. Iohn Strangwayes to him and spake to him was proved by S r. George Fane and S r. Alexander S r. Iohn
till his pleasure be first known Thus did the Lord Chief Justice Coke in Raynards Case They say this would have been done if the King had not written but why then was the Letter read and published and kept and why was the Town Clark sent carefully to enquire because the Letter so directed whether these men offered for bayl were subsedy men the Letter sheweth also that Beckwith was committed for suspition of being acquainted with the Gun-Pouder-Treason but no proof being produced the King left him to be bayled The Earle of WARVVICKS speech 21. April 1628. MY Lords I will observe something out of the Law wherein this liberty of the Subjects Person is founded and some things out of Presidents which have been alleadged For the Law of Magna Charta and the rest concerning these points they are acknowledged by all to be of force and that they were to secure the Subjects from wrongfnll imprisonment as well or rather more concerning the King then the Subject why then besides the grand Charter and those 6. other Acts of Parliament in the very point we know that Magna Charta hath been at least 30. times confirmed so that upon the matter we have 6. or 7. and thereby Acts of Parliament to confirm this liberty although it was made a matter of derision the other day in this House One is that of 36. E. 3. No. 9. and another in the same year No. 20. not printed but yet as good as those that are and that of 42. E. 3. cap. 3. so express in the point especially the Petition of the Commons that year which was read by M r. Littleton with the Kings answer so full and free from all exception to which I refer your Lordships that I know not have any thing in the World can be more plain and therefore if in Parliament ye should make any doubt of that which is so fully confirmed in Parliament and in case so clear go about by new glosses to alter the old and good Law we shall not onely forsake the steps of our Ancestors who in Cases of small importance would answer nolumus mutare leges Angliae but we shall yield up and betray our right in the greatest inheritance the Subjects of England hath and that is the Laws of England and truely I wonder how any man can admit of such a gloss upon the plain Text as should overthrow the force of the Law for whereas the Law of Magna Charta is that no Free-man shall be imprisoned but by lawfull judgement of his Peers or the Law of the Land the King hath power to commit without Cause which is a sence not onely expresly contrary to other Acts of Parliament and those especially formerly cited but against Common sence For Mr. Attorney confesseth this Law concerns the King why then where the Law saith the King shall not commit but by the Law of the Land the meaning must be as M r. Attorney would have it that the King must not commit but at his own pleasure and shall we think that our Ancestors were so foolish to hazard their Persons Estates and labour so much to get a Law and to have it 30. times confirmed that the King might not commit his Subjects but at his own pleasure and if he did commit any of his Subjects without a Cause shewen then he must lie during pleasure then which nothing can be imagined more ridiculous and contrary to true reason For the Presidents I observe that there hath been many shewen by which it appears to me evidently that such as have been committed by the Kings Councel they have been delivered upon Habeas Corpus and that constantly It is true that some Presidents were brought on the Kings part that when some of these persons desired to be delivered by Habeas Corpus the King or his Councel signified his Majesties pleasure that they should be delivered or the Kings Attorney hath come into the Court and related the Kings Command but this seems to make for the Subject For that being in his Majesties power to deliver them who by his special Command were imprisoned May not we well think that his Majesty would rather at that time have stayed their deliverance by Law then furthered it with his Letters and made the Prisoners rather beholding to him for his grace and mercy then to the Judges for Justice had not his Majesty known that at that time they ought to have been delivered by Law I think no man would imagine a wise King would have suffered his Grace and Prerogative if any such Prerogative were to be so continually questioned and his Majesty and his Councel so far from commanding the Judges not to proceed to deliver the Prisoner by them committed without Cause shewn as that on the other side which is all the force of these Presidents the King and the Councel signified to the Judges that they should proceed to deliver the parties certainly if the King had challenged any such Prerogative that a Person committed without any cause shewn ought not to be delivered by the Judges without his consent it would have appeared by one President or other amonst all that have been produced that his Majesty would have made some claim to such a Prerogative But it appears to the contrary that in many of these cases the King or his Councel did never interpose and where they did it was alwayes in affirmation and incouragement to that Court to proceed And besides the writing of Letters from his Majesty to the Judges to do Justice to his Majesties Subjects may with as good reason be interpreted that without those Letters they might not do Justice also the King signified his willingness that such such Persons which were committed by him should be delivered therefore they could not be delivered without it which is a strange reason So that findeing the Laws so full so many and so plain in the point and findeing that when ever any were committed without cause shewn brought their Habeas Corpus they were delivered and no Command ever given to the contrary or claim made on the Kings part to any such Prerogative I may safely conclude as the House of Commons have done and if any one President or two of late can be shewn that the Judges have not delivered the Prisoners so committed I think it is their fault and to be enquired of but contrary it seems to me to be an undoubted Liberty of the Subject that if he be committed without cause or without cause shewn yet he may have some speedy course to bring himself to Trial either to justifie his own innocencie or to receive punishment according to his fault for God forbid that an innocent man by the Laws of England should be put in worse case then the most grievous Malefactors are which must needs be if this should be that if a cause be shewed he may have his Trial but if none he must lie and pine in Prison during pleasure
April 1628. Mr. Speaker WE are now upon a great business and the manner of handling it may be as great as the business it self I need not tell you that Liberty is a pretious thing for every man may set his own price upon it and he that doth not value it deserves to be valued accordingly for my own part I am clear without scruple that what we have resolved it according to Law and if any Judge in England were of a contrary opinion I am sure we should have heard of him before now Out of all question the very point the scope and drift of Magna Charta was to reduce the Regal to a Legal power in matters of imprisonment or else it had not been worth so much contending for But there have been Presidents brought to prove the practise and interpretation of the Law I confess I have heard many Presidents of utillity and respect but none at all of truth or of Law Certainly there is no Court of Justice in England that will discharge a Prisoner committed by the King Rege inconsulto without acquainting the King yet this good manners was never made or mentioned as a legal part of the delivery It is Objected that the King ought to have a trust left and deposited in him God forbid but he should And I say that it is impossible to take it from him for it lies not in the wit of man to devise such a Law as should be able to comprehend all particulers all accidents but that extraordinary cases must happen which when they come If they be disposed of for the Common good there will be no Law against them yet must the Law be general for otherwise admissions and exceptions will fret and eat out the Law to nothing God himself hath constituted a general Law of nature to govern the ordinary course of things he hath made no Laws for miracles Yet there is this observation of them that they are rather praeter naturam then contra naturam and alwayes propter bonos fines for Kings Prerogatives are rather besides the Law then against it and when they are directed to right ends for the publick good they are not onely concurring Laws but even Laws in singularity and excelling But to come nearer M r. Speaker let us consider where we are now what steps we have gone and gained the Kings learned Councel have acknowledged all the Laws to have been still in force the Judges have disallowed any Judgement against these Laws the Lords also have confessed that the Laws are in full strength they have further retained our resolution intire and without prejudice All this hitherto is for our advantage but above all his Majesty himself being publickly present declared by the mouth of my Lord Keeper before both the Houses that Magna Charta and the other six Statutes are in force that he will maintain his Subjects in the liberty of their Persons and the propriety of their goods that he will govern according to the Laws of the Kingdom this is a solemne and bindeing satisfaction expressing his gracious readiness to comply with his People in all their reasonable and just desires The King is a good man and it is no diminution to be called so for whosoever is a good man shall be greater then a King that is not so The King certainly is exceeding tender of his present Honour and of his same hereafter he will think it hard to have a worse mark set upon him and his Government then any of his Ancestors by extraordinary restraints his Majesty hath already intimated unto us by a message that 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 wilt 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
have been imprisoned for suing ordinary Actions and Statutes at the Common-Law untill they have been constrained to leave the same against their wills and put the same to order albeit Judgement and Execution have been had therein to their great losses and griefs for the aid of which Persons her Majesties Writs have sundry times been directed to divers Persons having the custody of such Persons unlawfully imprisoned upon which Writs no good or Lawfull cause of imprisonment hath been returned or certified whereupon according to the Laws they have been again committed to Prison in secret places and not to any common ordinary Prison or Lawfull Officer as Shrieff or other lawfully authorized to have or keep a Goal so that upon Lawfull complaint made for their delivery the Queens Courts cannot learn to whom to direct her Majesties Writs and by this means Justice cannot be done and moreover divers Officers and Serjeants of London have been many times committed to Prison for Lawfull executing of her Majesties Writ sued forth of her Majesties Courts at West-minster and thereby her Majesties Subjects and Officers are so terrified that they dare not sue or execute her Majesties Laws her Writs and Commandments Divers others have been sent for by Pursevants and brought to London from their dwellings by unlawfull imprisonment have been constrained not onely to withdraw their Lawfull Suits but have also been compelled to pay the Pursevants for bringing such Persons great summes of money All which upon complaint the Judges are bound by Office and Oath to relieve and help by and according to her Majesties Laws And when it pleaseth your Lordships to will divers of us to set down in what cases a Prisoner sent to custody by her Majesty her Councel some one or other or two are to be detained in Prison and not to be delivered by her Majesties Court or Judges we thinck that if any Person be committed by her Majesties Command from her Person or by order from the Councel board or if any one or two of her Councel commit one for high Treason such Persons so in the cases before committed may not be delivered by any of her Courts without due Trial had Nevertheless the Judges may Award the Queens Writ to bring the bodies of such Persons before them and if upon return thereof the causes of their commitment be certified to the Judges as it ought to be then the Judges in the cases before ought not to deliver him but to remaund the Prisoner to the place from whence he came Which cannot conveniently be done unless notice of the cause in general or else special be known to the Keeper or Goaler that shall have the custody of such Prisoner All the Judges and Barons did subscribe their names to these Articles Termino Pascha 34. Eliz. and sent one to the Lord Chancellor and another to the Lord Treasurer after which time there did follow more quietness then before in the cause afore mentioned The KINGS Message the 2. May 1628. by Secretary COKE HIs Majesty hath commanded me to make known to this House that howsoever we proceed with the business we have in hand which he will not doubt but to be according to our constant professions and so as he may have cause to give us thanks yet his resolution is that both his royal care and his harty and true affection towards all his loving Subjects shall appear to the whole Kingdom and to all the World that he will govern us according to the Laws and Customes of the Realm that he will maintain us in the Liberties of our Persons and propriety of our goods so as we may enjoy as much happiness as our Forefathers in their best times and that he will rectifie what hath been or may be amiss amongst us so that there may be hereafter no just cause to complain wherein as his Majesty will ranck himself amongst the best of our Kings and shew he hath no intention to invade or impeach our Lawfull Liberties or Rights so he will have us to match our selves with the best Subjects by not incroaching upon that Soveraignty and Prerogative which God hath put into his hands for our good and by containing our selves within the bounds and Laws of our Forefathers without streining or inlarging them by new Explanations Interpretations Expositions or Additions in any sort which he clearly telleth us he will not give way unto That the weight of the affairs of Christendom do press him more and more and the time is now grown to that point of maturity that it cannot indure long debate or delay so as this Session of Parliament must continue no longer then Tuesday come sevenight at the furthest within which time his Majesty for his part will be ready to perform what he hath promised to us and if we be not as forward to do that is fit for us it shall be our own faults Lastly upon the assurance of our good dispatch and correspondency his Majesty declareth that his Royal intention is to have another Session at Michalmass next for the perfecting of such things as cannot now be done M r. MASONS speech 2. May 1628. I Am of opinion with the Gentleman that spake first that in our proceedings in the matter now in debate we should have use of the Title of the Statute called circumspecte agatis for it concerns the Liberty of our Persons without which we do not enjoy our lives The Question is WHether in this Bill for the explanation of Magna Charta and the rest of the Satutes we shall provide that the cause of the commitment must be expressed upon the commitment or upon the Return of the Habeas Corpus Before I speak to the question it self I shall propose some observations in my conceit necessarily conduceing to the debate of the Matter 1. That we ought to take care and to provide for posterity as our Predecessors have done for us and that this provident care cannot be expounded to be any distrust of the performance of his Majesties gracious Declaration this Act providing for perpetuity to which his Highness promise unless it were by Act of Parliament cannot extend 2. That we having long debated and solemnly resolved our Rights and Priviledges by virtue of these Statutes and if now we shall reduce those Declarations and those resolutions into an Act we must ever hereafter expect to be confined within the bounds of that Act being made at our Suit and to be the limmits of the Prerogative in in that respect and it being an Act of explanation which shall receive no further explanation then it self contains 3. That by this Act we must provide a remedy against the Persons which detain us in Prison for as to the Commander there can be no certain Concerning the Question it self IT hath been solemnly and clearly resolved by the House that the commitment of a Freeman without expressing the cause at the time of the commitment is against the Law If by this Act
Moseley covenanteth that his man Brograve should have 80 pounds and then he should have an Injunction but the Chancellor having Intimation thereof prevented the same yet after by Covenant Moseley procured his man 50 pounds That this was an ordinarie course cited many particulars that Moseley would in his private Chamber adde to Orders or detract from them or that was for the King or against the King as men would come off to him This is referred to a Committee to be examined Mr. Selden REported from the examination of Allen for so much as concerneth the Priviledge of this House by the first and third Article against him This justified by a Letter written by Allen to Mr. Barton the Puritan faction denied supply like Water-men provoked to War rowed another way for his Author of this he produceth a book set forth by King Iames in the 19 year of his Reign pag. 13. to shew how the Puritan faction be clear by mentioning the particular Members of the Commons House and pag. 5. in the same pag. all which they cloke with Religion and when he had boldly insisted on these he said I pray note it It is not this Parliament I speak of it was another Sir Robert Phillips THat he may be sent to the Tower and that he may stand in some publick place with a Paper declaring the cause or such other punishment as the House shall think fit Mr. Pym THat other matter of greater importance being under examination he may for the present rest in custodie and I doubt not but there is matter sufficient to inflict further punishment Ordered that Allen shall first answer his contempt at the Committee for Religion on Munday next Mr. Shervile THat the Committee for Pardons is sine die therefore he moveth for another day whereupon there is order to meet this afternoon Mr. Selden reported the draught of Mr. Mountagues interlined Pardon concerning the Additions more than an ordinarie Coronation Pardon except sundrie causes depending in the three Courts in Westminster-hall and the High Commission Court For Manwering all offences for time past and for time to come Sir Iohn Stanhope MOveth That one Lynne a Member of this House and Secretary to the Bishop of Winchester may look on the Pardon and be injoyned to declare whether he know the hand or no. Mr. Lynne declareth the interlined particulars to be part his Lords hand and part his own hand by his Lords command yet some of the interlined particulars he knew not the hand Sir Nathaniel Ritch thanked this Gentleman for dealing clearly with the House and saith for his encouragement he deserveth thanks from the whole House Sir Iohn Elliot moveth That a select Committee may extract a charge against the Bishop of Winchester that we may have judgement against him Sir Daniel Norton THat a Doctor of Divinitie in the Bishop of Winchesters Diocess a very grave Divine Doctor Moor the Bishop of Winchester said to him he had heard him often preach against Poperie before the Kings Majestie which was very pleasing to the King but now he must not The Doctor answers he must if it comes in his way said the Bishop you must not and further your Tables in the Quier stand as in an ale-house The Doctor replied they stood according to Law sayes the the Bishop there be Articles to controove said the Doctor the Register found it contrary saying Your Tables at Winchester stood as Altars Sir Robert Phillips THus you see how truth in the discoverie doth grow upon us And now you see how the introducing Ceremonies at Durham doth arise and now you see the greatest aspersion laid on his Majestie that ever I heard of and now I am confident the Bishop of Durham procured the Kings hand to the Pardons Chancellor of the Dutchie THis trencheth high to the person of the King and I am glad to hear it and shall be more glad to see it proved Sir Thomas Heale SAith he heard these words from Doctor Moores own mouth and asking if he would prove this in Parliament he said he would maintain it with his life Mr. Valentine SAith That this Bishop hath a Chaplain in Grantham that preached they were all damned that refused the Loan and that he hath made a great combustion in placing the Communion Table there The Speakers Letter is to go for Doctor Moore Munday 9. A Petition in complaint of the Post-Masters Patent of London which is referred to a Committee Mr. Speaker delivered from Mr. Attorney a Warrant in writing of his proceedings in Cosens business Mr. Iohn Elliot reported from the Committee for examination of the Merchants business that the Committee finding Sheriff Acton in prevarications and contradictions in his examinations which is conceived to be a contempt of this House desires he may be sent for to answer his contempt Mr. Godwin saith the Sheriff acknowledgeth his error and humbly desireth so much favour that he may once again be called before the Committee and if then he give not full contentment by his answer he will refer himself to the wisdome and justice of the House Mr. Walter secondeth this Motion so did Alderman Molson Secretarie Cook Chancellor of the Dutchie c. but his abuse being declared to be so great and so gross and that he had so many times given him to recollect himself and that he being so great an Officer of so great a Citie had had all the favour that he might be and yet rejected the same and carried himself in a very scornfull manner wherefore it is Ordered that he shall be sent for to the House as a Delinquent to Morrow morning Iones the Printer and his Councel are called in to argue the business of Mr. Mountagues Episcopal Confirmation First Quere Whether the exceptions be legal Secondly whether the Confirmation be good The last is the point now in hand to which the House enjoyned the Councel to speak The Councel proposed a Third Quere What will be the fruit or effect of it if in Law the Confirmation prove void In this the Councel said it will not extend to make him a Bishop upon the point of Election but upon the point of Confirmation onely which maketh him punishable if he execute any thing concerning the Bishoprick Sir Hen. Martin saith The exception making void the Confirmation doth in Law work also upon the Election Doctor Steward saith The point of setting to of the Advocates hand is but matter of Form in the Court no matter of Law Sir Henry Martin saith he will endeavour himself to give the House as full satisfaction and he will speak without relation to the Kings Right and Laws of the Realm The Proclamation by the Common Law should not be at Bow Church but at the Cathedral Church of the Diocess where the Bishop is to be elected and the Dean and Charter of that Diocess is to except and not every one that will The Argument is endless and to alter a course so long settled
that the two Parties in Parliament could not distinctly hear each other so as effectually to understand one another disturbed by the clamorous and obstreperous noise of English wickednesse which began to cry aloud for vengeance on a wanton nation even to the abrupt breaking off of the Parliament VVe have had no other design in the edition hereof then the generall good hoping that Readers of all sorts may gain benefit thereby Yea such young folk whose short capacities as yet are unable to reach the policie and State part in these pieces may better themselves by the very language and expressions therein Here may they observe the variety of eloquence in severall persons some large copious and exuberant yet not flashy empty and dilute some concise piccant and sententious yet not involved dark and obscure some participating of both which in my apprehension is the best kind of Orations However let not any think that all the Gentlemen of able parts assembled in the Parliament are registred in this book by their particular service to their Countrey seeing only such are entred herein who made set studied and premeditated Orations Many Worthies there were in that place who only were dexterous at short and quick returnes and which retrieved long debates with some short and compendious answer very effectuall to the purpose For sometimes a Stilletto blow may give a more deep and deadly wound then the point and edge of the sharpest Sword which requireth more time and room for the managing thereof Yea many a discreet gentleman who after long traversing of matters judiciously bestowed his Yea or Nay in the right scale thereof to weigh the balance down when in AEquilibrio of matters of high importance though otherwise not haranguing it in large discourses might return to his countrey with satisfaction to his conscience that he had well deserved thereof VVe are confident also that the Students of the Law may advantage themselves by severall Cases here largely reported And here all care hath been used in comparing Records herein cited with the Originalls though we dare not avouch it clear from all mistakes the greatest industry and exactnesse being subject to fallibilitie herein VVe have seen the Reports of late Iudges in print and could point at Erratas therein which we speak not to accuse them but excuse our selves if some faults be found in our quotations As for the Gentlemen whose speeches are herein related they are either dead or still surviving For the former we hope we have no cause to ask pardon of their memories and fear not their ghosts disquieting us for offering any injury unto them or that we shall fall into the disfavour of their Heires for misrepresenting any thing for their fathers disadvantage As for such who are still alive we appeal unto them making them the Judges of our integrity herein True it is that the dragge-net of no diligence can be of that capacity nor can it be so advantagiously cast as to catch and hold all particulars uttered in a long speech Minums will get through the holes thereof and there be those minutiae in a speech which will escape the attention of the quickest eare and transcription of the speediest hand But such things are lost without any losse as to the essentials of the matter and here all things of concernment are faithfully represented And may the Reader be pleased to take notice that this Book is no Monochord or Instrument of a single string no nor is it a single Instrument but the exact result of many collections We have compared varias lectiones or rather varias auditiones the copies as they have been taken by severall Auditours Sometimes one copie charitably relieved another nor was it long before the defects of the same copie were supplied out of that other transcription Thus neither is there being for Books nor living for men in this world without being mutually beholding one to another he who lends to day may be glad to borrow to morrow One thing let me mind the Reader that it may move him to a publick and communicative Spirit not enviously to engrosse to himself what may do good to others Some Gentlemen Speakers in this Parliament imparted their Speeches to their intimate Friends the transcripts whereof were multiplied amongst others the penne being very procreative of issue in this nature and since it hath happened that the Gentlemens Originalls have in these troublesome times miscarried yet so that the fountain as I may say being dried up hath fetch 't this water from the channell they have again supplied their losses from those to whom they civilly communicated a copy of their paines Thus none are loosers in fine by making others sharers in their endeavours And now give me leave to say that the History of the Parliament represented in this Book is fundamentall to the History of our Times and what valiant penne soever dare undertake the writing thereof it must lay its ground-work and take its rise from this Parliament Herein were vertually contained the seeds of all those troubles which since the heat of anger hath ripened to the full height and breadth thereof For what is said of Rebeckah that Twinnes were in her bowels which made their Mothers wombe the field of their fight wherein their unborn Infancy gave an Essay of that Antipathy which would be continued betwixt them when arrived at riper yeares the same was true here where the opposition betwixt two parties was begun with much violence and impetuousnesse Yet let not the similitude be uncharitably improved beyond my intent as fixing the odious character of Esau on either of them who hope and believe that both of them might be Iacobs at the first propounding plain pious and peaceable ends unto themselves Yea this may say to ensuing Parliaments as AEneas in the Poet to his sonne Disce puer virtutem ex me verumque laborem Fortunam ex aliis Nor can any true Patriot ever desire that men more honourable more knowing and able in all faculties of policie law and generall learning I may adde also more loving to or beloved of their Countreys ever should meet in Parliament who hence may take their pattern of many worthy and excellent vertues in Statists But oh let them farre exceed this in happinesse the abrupt end whereof was the beginning of all our miseries T. F. A TABLE of the severall Speeches Cases Arguments of Law and other passages contained in the first Session of the Parliament begun March 17. 1627. THe Kings Speech that day pag. first The Lord Keeper Coventryes speech the same day p. 3 The speaker Sir Iohn Finches speech March 19. pag. 7 The Lord Keeper Coventryes reply pag. 8 The Speaker Sir Iohn Finches reply pag. 9 The Lord Keeper Coventryes second reply pag. 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 Mr. Creswell of Lincolnes Inne concerning 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 errour and a cloud of evill right he knowes if the heart be right Out of the abundance of the heart the mouth speakes You proceed to a survey of the lustre of this great and glorious Assemblie and in that as in a curious Crystall you observe the true happinesse which we all here enjoy You have distributed and divided aright and whosoever sees it otherwise hath an evill eye or a false glasse We have enjoyed it long through the happy meanes of gracious and good Princes and the way to enjoy it still is to know and heartily to acknowledge it and that God hath not done so to any other Nation It is a prime cause or meanes of this our happinesse You mention the forme of Government under which we live a Monarchie and the best of Monarchies where Sovereignty is hereditarie no Inter-Regnum nor competition for a Crown Descent and Succession are all one The Spirit of God by the mouth of the wisest of Kings long since proclaimed this happinesse Blessed art thou O Land where thy King is the son of Nobles The frames of other States are subject some to inconstant Levitie some to Faction some to Emulation and Ambition and all to manifold Distempers in which the People go to wrack The Monarchie is most naturall and in it Unity is the best cement of all government principally in respect of the unity of the Head which commands the rest And therefore other States when they have tryed a while doe for the most part resolve into this as into the best for Peace for Strength and for Continuance But formes of other governments though never so exact move not of themselves but are moved of their governours And therefore our Monarchie as you have truly said this glorious Assemblie the lively image and representation of our Monarchie is made happy and perfect by the Royall Presence that sits here in his highest Royal Throne the Throne of the Law-giver glorious in it selfe glorious by those happy Lawes and Oracles which have issued from it and most glorious by them that sit on it his Majestie and his Royall Progenitours incomparable Kings that with so much honour have swayed the Sceptre of this Kingdome so many successions of Ages In the next place after the Throne of Majestie you look into the Chaire of Doctrine the reverend Prelates and upon the state of Religion their proper charge This is the blessing of all blessings the priviledge and assurance that secures us of all the rest that as our Religion is most sincere and orthodoxe so our Clergie is eminent both for purity of Doctrine and integritie of Life our Priests are clothed with righteousnesse and their lips preserve knowledge and therefore God's Saints may and doe sing with joyfulnesse I must joyn with you in attributing this transcendent blessing to us as in the first place to God's goodnesse so in the second to his Majestie 's piety who following the steps of his ever-blessed Father is carefull that all the Lamps of the Church may be furnished with Oyle and especially those which are set on golden Candle-sticks with the purest and best oyle The Schools also and nurceries of Learning never so replenished especially with Divinity as in this last Age as they all shew his Majestie 's Piety so are they infallible Arguments of his Constancy The triall which you call the fierie triall undergone by his Majestie in the place of danger and again the power and policie of Rome and Spaine hath approved his resolution inimitable and his own remarkable example in his closet and his chamber his strict over-sight of and command to his Houshold servants and his charge to his Bishops and Judges his Edicts his Proclamations and Commissions and the like for the execution of the Lawes and his general care to preserve the fountain pure both from Schisme and Superstition are faire fruits and effects of a pious and zealous resolution From the chaire of Doctrine you turn to the state of Honour unto the Nobles and Barons of England These are Robâ—r belli who for the service of the King and Kingdome are to make good with their Swords what the Church-men must hallow and blesse by their Prayers And therefore as the Prelates are the great Lights of the Church so the Nobility are the Starres of the State and you know that the starres have fought and fought powerfully against the enemies of God From the state of Honour you come to the state of Justice and to the twelve Lyons under Solomon's Throne the Iudges and Sages of the Law and as their peculiar charge intrusted to them by our Sovereigne the Lawes of the Kingdome Lawes undoubtedly fitted to the constitution of this people for Leges Angliae and Consuetudines Angliae are Synonyma and Consuetudo est altera natura so as besides the justnesse and rightnesse of the Lawes they are become naturall to our people and that is one of the powerfullest meanes which begetteth obedience and such Lawes in the mouthes of learned and upright Judges are like waters in a pure chanel which the fairer it runs the clearer they run and produce that whereof Solomon speaks Prov. 29.2 When the righteous are in authority the People rejoyce From the Law you passe to the Knights Citizens and Burgesses and the third Estate who represent the Commons of England in whom the Scripture is verified In the multitude of People is the Kings honour and therefore you may be sure that distance of place and order breeds no distance in affection for wise Kings ever lay their honour next to their hearts Kings are Pastores populi and the Shepherds care is nothing lesse to the furthest then to the next part of his Flock and it is asmuch towards the least of his Lambs as towards the greatest Cattel And as in the Natural bodie no member is so remote but it is still within the care of the head so in this great Politick bodie of the Kingdome no ranck or order of People so low is at such distance from the Throne but it dayly feeles the influence and benefit of the Kings care and protection And to say the truth in a well-governed Kingdome the superiour rancks of Nobles of Judges and of Magistrates are not ordained for themselves but as conduits for the Kings justice protection and goodnesse to the lower rancks of his People And as the People are so its just cause they should be constant to the Poles of Love and Loyalty And thus having perused both Houses by divided parts joyn them together and in that juncture you believe truly and materially that the greatest denyal of their joynt requests is The King will advise A note very remarkable It shewes the indulgence of Kings it shews also the wisdom and judgement of the Houses the
But yet our Eden in this garden of the Common-wealth as there are the flowers of the Sun which are so glorious that they are to be handled onely by royall Majestie so are there also some Daisies and wholsome herbs which every common hand that lives and labours in this garden may pick and gather up and take comfort and repose in them Amongst all which this oculus diei this bona libertas is one and the cheif one Thus much in all humblenesse I presume to speak for the occasion I will now descend to the Question wherein I hold with all dutifull submission to better Iudgments that these Acts of power in imprisoning and confining of his Majesties Subjects in such manner without any declaration of the cause are against the fundamentall Lawes and Liberties of this Kingdome And for these reasons thus briefly drawn I conclude 1. The first from the great favour which the Law doth give unto and the great care which it hath ever taken of the liberty and safety of this Kingdome I should not need to take the question in pieces nor handle it in parts dividedly but as one intire because I hold no other difference between imprisonment and confinement then only this that one hath a lesse and streighter the other a greater and larger Prison And this word Confinement not being to be found in any one case of our law if therefore it is become the language of State it is too difficult for me to define To proceed therefore in maintenace of my first reason I find our Law doth so much favour the Subjects liberty of his Person that the body of a man was not liable to be arrested or imprisoned for any other cause at the Common Law but for force and things done against the peace For the Common Law being the preserver of the land so abhorreth force that those that commit it she accompts her capitall enemies therefore did subject their bodies to imprisonment But by the statute of Marlebridge Cap. 24. which was made 35. Hen. 3. who was the eighth King from the Conquest because Bailiffs would not render accounts to their Lords it was enacted that their bodies should be attached And afterwards by the statute 23. Edw. 3.17 who was the 11 King after the Conquest because men made no Conscience to pay their debts it was enacted that their bodies should likewise be attached But before those statutes no many body was subject to be taken or imprisoned otherwise then as aforesaid Whereby it is evident how much the Common Law favoured the Liberty of the Subject and protected his body form imprisonment I will inforce the reason futher by a Rule in law and some cases in Law upon that Rule The Rule is this That Corporalis injuria non recipit aestimationem fuluro So as if the question be not for a wrong done to the person the Law will not compell him to sustain it and afterwards except a remedy for the Law holds no damage a sufficient recompence for a wrong which is corporall The cases in Law to prove this rule shall be these If one menace me in my goods or that he will burn the evidence of my land which he hath in his custody unlesse I make unto him a Bond there I cannot avoyd the Bond by pleading of this menace But if he restrains my person or threatens me with battery or with burning my house which is a protection for my person or with burning an instrument of manumission which is an evidence of my enfranchisement upon these menaces these or dares I shall avoid the bond by plea. So if a Trespassour drives my beast over another Mans ground and I pursue to rescue it there I am a Trespassour to him on whose ground I am But if a man assault my person and I for my safety fly over into another man's ground there I am no Trespassour to him for Quod quis in tuitione sui corporis fecerit jure id fecisse existimatur Nay which is more the Common Law did favour the Liberty not only of Freemen but even of the persons of Bondmen and Villains who haue no right of propriety either in lands or goods as Freemen have And therefore by the Law the Lord could not maim his Villain nay if the Lord commanded another to beat his Villain and he did it the Villain should have his action of Battery against him for it If the Lord made a Lease for yeares to his Villain if he did plead with his Villain if he tendred his Villain to be Champion for him in a Writt of Right any of those acts and many other which I omit were in Law infranchisements and made these Villains Freemen Nay in a suite brought against one if he by Attorney will pleade that he is a Villain the Law is so carefull of Freedome that it dissallowes this plea by Attorny but he must doe it propria persona because it binds his Posterity and bloud to the Villains also And thus much in the generall for my first reason 2. My next reason is drawn by an Argument à majori ad minus I frame it thus If the King have no absolute power over our Lands or Goods then à fortiori not over our Persons to imprison them without declaring the cause for our Persons are much more worth then either Lands or Goods which is proved by what I have said already and Christ himself makes it clear where he saith An non est corpus supra vestimentum Is not the Body more worth then Raiment where the Canonists say that Vestimentum comprehendeth all outward things which are not in the same degree with that which is corporall And our Law maketh it also plain for if a Villain purchase Frank-land this maketh it Villain-land according to the nature of his person but it holds not è converso Frank-land shall not free the person Now that the King hath no absolute power either over our Lands or Goods I will onely at this time but put a case or two for without proof of the Premisses my Conclusion would not follow First for Land The King cannot by his Letters pattents make the son of an Alien heir to his father nor to any other for he cannot disinherit the right heir saith the book nor do no prejudice to the Lord of his Escheat The King by his Prerogative shall pay no toll for things bought in Fairs and Markets but a custome for paying toll to go over the soil and free-holds of another shall bind the King for this toucheth the inheritance of the Subject and therefore the King shall not have so much as a way over his lands without paying and if not a way then certainly not the land it self Next for Goods If a man hath a Jewell in gage for ten pound c. and is attainted for Treason the King shall not have this Jewell if he payes not the ten pound So if Cattel be distreined and the owner of them
or otherwise restrained though it be by the command of the King Privy Councel or any other he praying the same 3. If a Free-man be committed or detained in prison or otherwise restrained by the command of the King Privy Councel or any other unlesse the cause of the commitment detainment or restraint be expressed for which by Law he ought to be committed detained or restrained and the same be returned upon habeas corpus granted for the said party that then he ought to be delivered or bailed Sir John Coke his Speech at a Conference between the Lords and Commons about the Petition to the King against Recusants My Lords WE are sent to attend this Conference from the Knights Citizens and Burgesses of the House of Commons And first we acknowledge all due honour both unto the reverend Fathers of the Church and to you noble Lords in that ye have shined before us as worthy lights in the encouragement and maintainance of true Religion It is the true support of all your dignities and honours And this forwardnesse of yours is the more remarkable when that viperous generation as your Lordships justly stile them doe at ease with tooth and nail assay to rend the bowels of their Mother For give me leave to tell you what I know that they now both vaunt at home and write to their friends abroad they hope all will be well and doubt not to prevail and to win ground upon us And a little to awake the zeal and care of our learned and grave Fathers it is fit that they take notice of that Hierarchie which is already established in competition with their Lordships for they have a Bishop consecrated by the Pope this Bishop hath his subalternate Officers of all kinds as Vicars-generall Arch-deacons rurall Deans Apparatours and such like Neither are those nominall or titular Officers alone but they all execute their Jurisdictions and make their ordinary Visitations through the Kingdome keep Courts and determine Ecclesiasticall causes and which is an argument of more consequence they keep ordinary intelligence by their Agents in Rome and hold correspondence with the Nuntioes and Cardinalls both at Bruxells and in France Neither are the Seculars alone grown to this height but the Regulars are more active and dangerous and have taken deep root they have already planted their Societies and Colledges of both Sexes they have setled Revenues Houses Libraries Vestments and all other necessary provisions to travell or stay at home nay even at this time they intend to hold a concurrent Assembly with this Parliament But now since his sacred Majesty hath extended his royall arm and since the Lords of his Councell have by their authority caused this nest of Wasps to be digged out of the earth and their Convocations to be scattered and since your Lordships joyn in courage and resolution at least to reduce this People to their lawfull restraint that they may doe no more hurt we conceive great hope and comfort that the almighty God will from henceforth prosper our endeavours both at home and abroad But now my Lords to come to the chief errand of this our meeting which is to make known to you the approbation of our House of that Petition to his Majesty wherein you were pleased to request our concurrence The House hath taken it into serious consideration and from the beginning to the end approve of every word and much commend your happy pen onely we are required to present unto you a few additions whereby we conceive the Petition may be made more agreable to the Statutes which are desired to be put in execution and to a former Petition granted by his Majesty recorded in both Houses confirmed under the Broad Seal of England and published in all the Courts of our ordinary Justice But these things we propound not as our Resolutions or as matters to raise debate or dispute but commend them only as our Advise and desire being ready notwithstanding to joyn with your Lordships in the Petition as now it is if your Lordships shall not find this reason to be of weight These additions were but few and were approved of by the Lords and inserted in the Petition the 29. March 1628. The Petition of both Houses to his Majesty concerning Recusants March 31. 1628. VVE your Majesties most loyall and obedient Subjects the Lords Spirituall and Temporall and Commons in Parliament assembled having to our singular comfort obtained your Majesties pious and gracious assent for a publick Fast to appease the wrath of almighty God kindled against us and to prevent those grievous Judgements which doe apparently presse upon us doe in all humility present unto your Sacred Majesty all possible thanks for the same And because the publick and visible Sins of the Kingdome are the undoubted Causes of those visible Evils that are fallen upon us amongst which sins as is apparent by the Word of God Idolatry and Superstition are the most hainous and crying sins to the end that we may constantly hope for the blessing of God to descend upon this our publick Humiliation by abandoning those sins which doe make a wall of separation betwixt God and us 1. We most humbly and ardently beg at the hands of your Sacred Majesty that your Majesty will be pleased to give continuall life and motion to all those Laws that stand in force against Iesuites Seminary Priests and all that have taken Orders by authority of the Sea of Rome by exacting a more due and serious execution of the same amongst which number those that have highly abused your Majesties Clemency by returning into the Kingdome after their Banishment contrary to your Highnesse expresse Proclamation we humbly desire may be left to the severity of your Laws without admitting any mediation or intercession for them and that such of your Majesties unsound and ill-affected Subjects as doe receive harbour or conceal any of that viperous generation may without delaies suffer such penalties and punishments as the Laws most justly impose upon them 2. That your Majesty would be pleased to command a secure and streight watch to be kept in and over your Majesties Ports and Havens and to commit the care and charge of searching of ships for this discovery and apprehension as well of Iesuits and Seminary Priests brought in as of children and young Students sent over beyond the Seas to suck in the poison of Rebellion and Superstition unto men of approved Fidelity and Religion and such as shall be convicted to have connived or combined in the bringing in of the one or conveying out of the other that the Lawes may passe upon them with speedy execution 3. That considering those dreadfull dangers never to be forgotten which did involve your Majesties Sacred Person and the whole representative Body of your Majesties Kingdome plotted and framed by the free and common accesse of Popish Recusants to the city of London and to your Majesties Court your Majesty would be graciously pleased to
Loyalty may have such place in your Royall thoughts as to rest assured that all your Subjects will be ready to lay down their lives for the defence of your Sacred Person and this Kingdome Not going our selves into our Countreys this Easter we should think it a great happinesse to us and we know it would be a singular comfort and encouragement to them that sent us hither if we might but send them the newes of a gracious Answer from your Majesty in this particular which the reasons of the Petition we hope will move your most excellent Majesty graciously to vouchsafe us The King's Answer to the Petition concerning billetting of Souldiers 14 April 1628. M r Speaker and you Gentlemen WHen I sent you my last message I did not expect any Reply for I intended to hasten you not to find fault with you I told you at your first meeting that this time was not to be spent in words and I am sure it is lesse fit for disputes which if I had a desire to entertain M r Speaker's Preamble might give me ground enough The Question is not now what Libertie you have in disposing of matters handled in your House but rather what is fit to be done Therefore I hope you will follow my example in eschewing disputations and fall to your important businesse You make a protestation of your affections and zeal to my Prerogative grounded upon so good and just reasons that I must believe you But I look that you use me with the like charitie to believe what I have delivered more then once since your meeting which is That I am as forward as you for the preservation of your true Liberties yet let us not spend so much time in this that may hazzard both my Prerogative and your Liberties to our Enemies To be short go on speedily with your businesse without fear or more Apologies for time calls fast on you which will neither stay for me nor you Wherefore it is my dutie to presse you to hasten as knowing the necessity of it and yours to give credit to what I say as to him that sitteth at the Helme Sir Dudley Diggs his Introduction My Lords I Shall I hope auspiciously begin this Conference this day with an Observation out of Holy Story In the dayes of good King Iosiah when the Land was purged of Idolatry and the great men went about to repaire the House of God while money was sought for there was found a Book of the Law which had been neglected and afterwards being presented to the good King procured the blessing which your Lordships may read of in the Scriptures 2 Chro. cap. 34. 2 Kings cap. 22. My good Lords I am confident your Lordships will as cheerfully joyn with the Commons in acknowledgement of Gods great blessing in our good King Iosiah as the Knights Citizens and Burgesses of the Commons House by me their unworthy servant do thankfully remember your most religious and truly honourable invitation of them to the late Petition for clensing this Land from Popish Abominations which I may truly call a necessary and happy repairing of the House of God And to go on with the parallell while we the Commons out of our good affection were seeking for money we found I cannot say a book of the Law but many and those fundamentall points thereof neglected and broken which hath occasioned our desire of this Conference Wherein I am first commanded to shew unto your Lordships in generall that the Lawes of England are grounded on reason ancienter then bookes consisting much in unwritten Customes yet so full of Justice and true Equity that your most honourable Predecessours and Ancestours many times propugned them with a Nolumus Mutare and so ancient that from the Saxons daies notwithstanding the Injuries and Ruines of Time they have continued in most parts the same as may appear in old remaining Monuments of the Lawes of Ethelbert the first Christian King of Kent Ina King of the West-Saxones Offa of the Mercians In Bibliotheca Cottoniana and of Alfred the great Monarch who united the Saxon Heptarchie whose Laws are yet to be seen published as some think by Parliament as he sayes to that end ut qui sub uno Rege sub una Lege regerentur Liber Lichfield And though the book of Lichfield speaking of the troublesome times of the Danes saies that then Ius sopitum erat in Regno Leges consuetudines sopitae sunt and prava voluntas vis violentia magis regnabant quam Iudicia vel Iustitia yet by the blessing of God a good King Edward commonly called S. Edward did awaken these Lawes Excitatas reparavit reparatas decoravit decoratas confirmavit Liber de Chartsey sive Registrum de Chartsey which confirmavit sheweth that good King Edward did not give those Lawes which William the Conquerour and all his Successours sithence that have sworn unto And here my Lords by many Cases frequent in our Modern Lawes strongly concurring with those of the ancient Saxon Kings I might if time were not precious demonstrate that our Lawes and Customes were the same I will only intreat your Lordships leave to tell you that as we have now even in those Saxon times they had their Courts Barons and Courts Leets and Sheriffs Courts by which as Tacitus saith of the Germans their Ancestours Iura reddebant per pagos vicos And I believe as we have now they had their Parliaments where new Lawes were made cum consensu Praelatorum Magnatum totius Communitatis or as another writes cum consilio Praelatorum Nobilium sapientum Laicorum I will adde nothing out of Glanvile that wrote in the time of Henry the second or Bracton that writ in the time of Henry the third only give me leave to cite that of Fortescue the learned Chancellour to Hen. 6. who writing of this Kingdome saith Regnum illud in omnibus Nationum Regum temporibus De Dom. polit et regal eisdem quibus nunc regitur legibus consuetudinibus regebatur But my good Lords as the Poet said of Fame I may say of our Common Law Ingreditur solo caput inter nubila condit Wherefore the cloudy part being mine Virgil. I will make haste to open way for your Lordships to heare more certain Arguments and such as go on surer grounds Be pleased then to know that it is an undoubted and fundamentall point of this so ancient Common Law of England that the Subject hath a true Proprietie in his goods and possessions which doth preserve as sacred that meum and tuum that is the Nurse of Industrie the Mother of Courage and without which there can be no Justice of which meum and tuum is the proper object But this undoubted Birthright of free Subjects hath latelie not a little been invaded prejudiced by pressures the more grievous because they have been pursued by Imprisonments contrary to the Franchise of
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 unanimously 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 Grand 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 eum ibimus nec super eum mittemus nisi per legale judicium parium suorum vel per legem terrae These words Nullus liber homo 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 which are excluded by the word liber for the generall Law of the Land doth allow their Lords to imprison them at pleasure without cause wherein they only differ from the Free-men in respect of their persons who cannot be imprisoned without a cause And that this is the true understanding of those words per legem terrae will more plainly appear by divers other Statutes that I shall use which do expound the same accordingly And although the words of this Grand Charter be spoken in the third person yet they are to be understood of Suites betwixt partie and partie at least not of them alone but even of the Kings Suites against his Subjects as will appear by the occasion of the getting of that Charter which was by reason of the differences betwixt those Kings and their people and therefore properlie to be applyed to their power over them and not to ordinarie questions 'twixt Subject and Subject The words per legale judicium parium suorum immediately precedeing the other per legem terrae are meant of trialls at the Kings Suit and not at the prosecution of a Subject And therefore if a Peer of the Realm be arraigned at the Suit of the King upon any Indictment of Murther he shall be tried by his Peeres that is Nobles But if he be appealed of Murther by a Subject his triall shall be by an ordinarie Jury of 12 Free-holders as appeareth in 10. Edw. 4. It is said such is the meaning of Magna Charta By the same reason therefore as per judicium parium suorum extends to the Kings Suit so shall these words per legem terrae And in 8. E. 2. Rot. Parliam num 7. there is a Petition that a Writ made under the Privie Seal went to the Guardians of the Great Seal to cause lands to be seized into the Kings hands by force of which there went a Writ out of the Chauncery to the Exchequer to seize against the forme of the Grand Charter That the King or his Ministers shall out-law no man of Free-hold without reasonable Judgement And the partie was restored to his land Which sheweth the Statute did extend to the King There was no invasion upon this personall liberty till the time of King Edw. the 3. which was soon restrained by the Subject For in the 5. E. 3. cap. 9. it is ordained in these words It is enacted that no man from henceforth shall be attached by any accusation nor forejudged of life or limbe nor his lands tenements goods nor cattells seized into the Kings hands against the forme of the great Charter And the Law of the Land 25. E. 3. cap. 4. is more full and doth expound the words of the Grand Charter and it is thus Whereas it is contained in the great Charter of the Franchises of England That no Free-man be imprisoned or put out of his Free-hold nor of
his Franchise nor Free Custome unlesse it be by the Law of the Land it is accorded assented and established that from henceforth none shall be taken by petition or suggestion made unto our Lord the King or to his Councell unlesse it be by indictment or presentment of his good and lawfull people of the same neighbourhood where such deeds be done in due manner or by processe made by Writ originall at the Common Law nor that none be out of his Franchises or of his Free-hold unlesse he be duely brought into answer and forejudged of the same by course of Law and if any thing be done against the same it shall be redressed and held for null Out of this Statute I observe that what in Magna Charta and the Preamble of this Statute is termed by the Law of the Land is in the body of this Act expounded to be by processe made by Writ originall at the Common Law which is a plain interpretation of the words Law of the Land in the grand Charter And I note that this Law was made upon the commitment of divers to the Tower no man yet knoweth for what The 28. E. 3. is yet more direct this Libertie being followed with fresh suite by the Subject where the words are not many but very full and significant That no man of what estate or condition he be shall be put out of his lands or Tenement nor taken nor imprisoned nor disinherited nor put to death without he be brought into answer by due processe of the Law Here your Lordships see the usuall words of the Law of the Land are rendered by due processe of the Law 36. E. 3. Rot. Parliam num 9. amongst the Petitions of the Commons one of them being translated into English out of the French is thus First that the great Charter and the Charter of the Forrest and the other Statutes made in his time and the time of his Progenitours for the profit of him and his Commonaltie be well and firmly kept and put in due execution without putting disturbance or making arrest contrarie to them by speciall command or in any other The answer to the Petition which makes it an Act of Parliament is Our Lord the King by the assent of the Prelates Dukes Earles Barons and the Commonaltie hath ordained and established that the said Charters and Statutes be held and put in execution according to the said Petition which is that no arrest should be made contrarie to the Statutes by speciall command This concludes the Question and is of as great force as if it were printed For the Parliament Roll is the true warrant of an Act and many are omitted out of the books that are extant 36. E. 3. Rot. Parliament num 20. explaineth it further for there the Petition is Whereas it is contained in the Grand Charter and other Statutes that none be taken or imprisoned by speciall command without indictment or other due processe to be made by the Law yet oftentimes it hath been and still is that many are hindred taken and imprisoned without indictment or other processe made by the Law upon them as well of things done out of the Forrest of the King as for other things That it would therefore please our said Lord to command those to be delivered which are so taken by speciall Command against the forme of the Charters and Statutes aforesaid The answer is The King is pleased if any man find himself grieved that he come and make his complaint and right shall be done unto him 37. E. 3. cap. 18. agreeth in substance when it saith Though that it be contained in the great Charter that no man be imprisoned nor put out of his Freehold without processe of the Law neverthelesse divers people make false suggestions to the King himself as well for malice as otherwise whereat the King is often grieved and divers of the Realme put in damage against the forme of the said Charter Wherefore it is ordained that all they which make such suggestions be sent with the suggestions before the Chauncellour Treasurer and the grand Councell and that they there find suretie to pursue their suggestions and incurre the same paine that the other should have had if he were attainted in case that their suggestions be found evil and that then processe of the Law be made against them without being taken and imprisoned against the forme of the said Charter and other Statutes Here the Law of the Land in the grand Charter is explained to be without processe of the Law 42. E. 3. ca. 3. At the request of the Commons by their Petitions put forth in this Parliament to eschew mischiefs and damage done to divers of his Commons by false accusers which oftentimes have made their accusation more for revenge and singular benefit then for the profit of the King or of his people which accused persons some have been taken and sometimes caused to come before the Kings Councell by writ and otherwise upon grievous paine against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices or matter of Record or by due processe or writ originall according to the old Law of the Land And if any thing henceforth be done to the contrary it shall be void in Law and holden for errour But this is better in the Parliament Roll where the Petition and Answer which make the Act are set down at large 42. E. 3. Rot. Parliament num 12. The Petition Because that many of the Commons are hurt and destroyed by false accusers who make their accusations more for their revenge and particular gaine then for the profit of the King or his people and those that are accused by them some have been taken and others have been made to come before the Kings Councell by writ or other Commandment of the King upon grievous paines contrary to the Law That it would please our Lord the King and his good Councell for the just government of his people to ordain that if hereafter any accuser propose any matter for the profit of the King that the same matter be sent to the Justices of the one Bench or the other or the affaires to be enquired and determined according to the Law And if it concern the accuser or partie that he take his suit at the Common Law and that no man be put to answer without presentment before Justices or matter of Record and by due processe originall writ according to the ancient Law of the Land And if any thing henceforward be done to the contrarie that it be void in Law and held for errour Here by due processe and originall writ according to the Law of the Land is meant the same thing as per legem terrae in Magna Charta and the abuse was they were put to answer by the commandment of the King The Kings Answer is thus Because that this
called because the Authour lay in the Fleet when he made the book for he lib. 2. cap. 52. in his cap. of Turnes and the views of the Hundred Courts in the Countrie sets down the Articles of the Charges that are there to be enquired of amongst which one of them is de replegiabilibus injuste detentis or irreplegiabilibus dimissis which cannot be meant of not bailing by the Justices for what have the inferiour Courts in the Countrey to do with the Acts of the Justices And to make it more plain he setteth down in this Chapter that concernes Sheriffs only the very Statute of Westm. cap. 15. which he translates verbatim out of the French into the Latin save that he renders taken by the command of the Justices thus per Iudicium Iustitiariorum and his Preface to the Statute plainly sheweth that he understood it of replevine by Sheriffs for he saith Qui debent per plegios dimitti qui non declarat hoc Statutum and per plegios is before the Sheriff But for direct authoritie it is the opinion of Newton the Chief Justice in 22. H. 6.46 where his words are these It cannot be intended that the Sheriff did suffer him to go at large by mainprize for where one is taken by the writ of the King or the command of the King he is irreplevisable but in such case his friends may come to the Justices for him if he be arrested and purchase a supersedeas So he declares the very Question That the Sheriffs had no power but that the Justices had power to deliver him that is committed by the Kings Command And both the ancient and modern practise manifests as much for he that is taken for the death of a man or for the Forrest is not replevisable by the Sheriff yet they are ordinarily bailed by the Justices and were by the Kings writs directed to the Sheriffs in the times of E. 1. and E. 2. as appeares in the Close Rolls which could not be done if they were not bailable And it is every dayes experience that the Justices of the Kings Bench do baile for murther and for offences done in the Forrest which they could not do if the word irreplevisable in Westm. 1. were meant of the Justices as well as of the Sheriffs For the authorities which have been offered to prove the contrarie they are in number 3. The first is 21. E. 1. Rot. 2. which also is in the book of the Pleas in Parliament at the Tower fol. 44. It is not an Act of Parliament but a resolution in Parliament upon an action there brought which was usuall in those times and the Case is That Stephen Rubar the Sheriff of the Counties of Leicester and Warwick was questioned for that he had let at large by sureties one William the son of Walter le Parsons against the will and command of the King when as the King had committed him by Letters under his Privie Seal that he should do no favour to any man that was committed by the command of the Earle of Warwick as that man was Whereunto the Sheriff answered that he did it at the request of some of the Kings houshold upon their Letters and because the Sheriff did acknowledge the receipt of the Kings Letters thereupon he was committed to prison according to the forme of the Statute To this I answer that he was justly punished for that he is expresly bound by the Statute Westm. 1. which was agreed from the beginning But this is no proof that the Judges had not power to baile this man The next Argument is 33. H. 6. in the Court of Common Pleas fol. 28.29 where Robert Poinings Esq was brought unto the Barre upon a Capias and it was returned that he was committed per duos de Consilio I believe it is misprinted for Dnos de Consilio i. e. Dominos de Consilio which is stongest against that which I maintain pro diversis causis Regem tangentibus and he made an Attorney there in an accusation whence is inferred that the return was good and the partie could not be delivered To this the Answer is plain 1. No opinion is delivered in that book whether he were delivered or bailed or not 2. It appeares expresly that he was brought thither to be charged in an accusation of debt at another mans Suit and no desire of his own to be delivered or bailed and then if he were remanded it is no way materiall to the question in hand But that which is most relied upon is the opinion of Stamford in his book of the Pleas of the Crown lib. 2. ca. 18. fol. 72.73 in his cap. of Mainprize where he reciteth the Statute of Westm. 1. cap. 15. and then saith thus By this Statute it appeareth that in 4 cases at the Common Law a man was not replevisable to wit those that were taken for the death of a man by command of the King or of his Justices or for the Forrest Thus farre he is most right Then he goeth on and saith As to the Command of the King that is understood of the command of his own mouth or his Councell which is incorporated unto him and speake with his mouth or otherwise every writ of Capias to take a man which is the Kings command would be as much And as to the command of the Justices that is meant their absolute command for if it be their ordinarie commandment he is replevisable by the Sheriff if it be not in some of the Cases prohibited by the Statute The answer that I give unto this is That Stamford hath said nothing whether a man may be committed without cause by the Kings command or whether the Judges ought not to baile him in such case but only that such a one is not replevisable which is agreed for that belongs to the Sheriff And because no man should think he meant any such thing he concludes his whole sentence touching the command of the King and his Justices That one committed by the Justices ordinarie command is replevisable by the Sheriff So either he meant all by the Sheriff or at least it appeares not that he meant that a man committed by the King or the Privie Councell without cause is not bailable by the Justices and then he hath given no opinion in this case What he would have said if he had been asked the question cannot be known neither doth it appeare by any thing he hath said that he meant any such thing as would be inferred out of him And now my Lords I have performed the command of the Commons and as I conceive shall leave their declaration of personall Liberty on ancient and undoubted truth fortified with 7 Acts of Parliament and not opposed by any Statute or authoritie of Law whatsoever The Objections of the King's Councell with the Answers made thereunto at the two Conferences touching the same matter IT was agreed by Master Attorney generall that the seven Statutes urged by
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 vitermini 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 words per begem 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
also to the Nobles and their honourable Progenies to the Bishops and Clergie and their successours to all persons of what condition or sex or age soever to all Judges Officers c. whose attendance are necessary c. without exception of any person Fifth generall reason The fifth is drawn from the indefinitnesse of time the pretended power being limited to no time may be perpetuall during life Sixth generall reason The sixth à damno dedecore from the losse and dishonour of the English Nation in 2 respects First for their valour and prowesse so famous through the whole world Secondly for their industry for who indeavours to apply himself in any profession either of warre liberall science or merchandise c. if he be but Tennant at will of his Liberty And no Tennant at will will support or improve any thing because he hath no certain estate And thus it should be both dedecus and damnum to the English Nation and it should be no honour to the King to be King of slaves Seventh generall reason The seventh is drawn ab utili inutili for that it appeareth by the statute of 36. E. 3. That the execution of the statute of Magna Charta 5. E. 3.25 E. 3. are adjudged in Parliament to be for the profit of the King and of his people Rot. Parl. 36. E. 3. num 9. 20. And therefore this pretended power being against the profit of the King and of his people can be no more part of this prerogative Eighth generall reason The eighth generall reason is drawn à tuto for it is safe for the King to expresse the cause of the commitment 1. E. 2. de frang prison stat unt pasche 18. E. 3. rot 33. coram Rege Bildestons case rot Parl. 28 H. 6. nu 16. Acts Apost cap. 25. v. the last and dangerous for him to omit it for if any be committed without expressing the cause though he escape albeit the truth be it were for treason or felony yet the escape is neither felony nor treason But if the cause be expressed to be for suspition of treason or felony then the escape albeit he be innocent is treason or felony Ninth generall reason The ninth generall reason is drawn from the authorities 16. H. 6. tit Monstrans defaits 182. by the whole Court the King in his presence cannot command one to be arrested but an action of false imprisonment lieth against him that arresteth 22. H. 6.46 Newton 1. H. 7.4 the opinion of Markham Chief Justice to E 4. and the reason because the party hath no remedy Fortescue cap. 18. proprio ore nullus Regum usus est c. to commit any man c. 4. Eliz. Plowd Com. 236. the common Common Law hath so admeasured the Kings prerogative as he cannot prejudice any man in his inheritance and the greatest inheritance a man hath is the Liberty of his person for all other are necessary to it Major haereditas venit unicuique nostrum à jure legibus quam à parentibus 25. E. 1. ca. 2. Confirm Cart. all judgements given against Magna Charta are void Objections Upon Conference with the Lords the objections were made by the Kings Attorney First object That these resolutions of the House were incompatible with a Monarchy that must govern by the state Bracton Answ. Whereunto it was answered that nihiltam proprium est imperii quam legibus vivere And again Attribuat Rex legi quodlex attribuat c. viz. dominationem imperium quia sine lege non potest esse Rex It can be no more prejudice to the King by reason of matter of state for if it be for suspition of treason misprision of treason or felony it may be by generall words expressed viz. pro suspitione proditionis 2 object To blind those that are committed one cause must be pretended and another intended especially when it toucheth matter of state Answ. Whereunto it was answered that all dissimulation especially in the course of Justice was to be avoided and soundnesse of truth to take place and therefore David that was both a King and a Prophet prayed to Almighty God against dissimulation in these words Lord send me a sound heart in thy statutes that I be not ashamed where sound in the originall signifieth upright without dissimulation and shame followeth dissimulation when the truth is known Third object If a Rebell be attainted in Ireland and his children for safety and for matter of state be kept in the Tower what shall be returned upon the Habeas Corpus Whereunto It was answered First that their imprisonment might be justified if they could not find good sureties for their good behaviour Secondly It was charity to find them meat drink and apparell that by the Attainder of their father had nothing Fourth object Though his Majesty expresseth no cause yet it must be intended that there was a just cause Answ. De non apparentibus de non existentibus eadem ratio Fifth object First The King in stead of gold or silver may make money currant of any base metall Secondly He may make warres at his pleasure Thirdly He may pardon whom he will Fourthly He may make denizens as many as he will and these were said to be greater priviledges then this in question Answ. To the first it is denyed that the King may make money currant of base metal but it ought to be gold or silver Secondly It was answered admitting the King might do it his losse and charge was more then of his Subjects both in the case of money and in the case of warre The pardon was private out of grace and no man had dammage or loss by it so of the making of denizens the King was only the looser viz. to have single custome where he had double Thirdly it was a non sequitur The King may do these things ergo he may imprison at will Your Lordships are advised by them that cannot be daunted by fear nor misled by affection reward or hope of preferment that is of the dead By ancient and many Acts of Parliament in the point besides Magna Charta which hath been 30 times confirmed and commanded to be put in execution wherein the Kings of England have thirty times given their Royall assent Secondly Judiciall Presidents per vividas rationes manifest and apparant reasons we in the house of Commons have upon great studie and serious consideration made a grand manifesto unanimously nullo contradicente concerning this great Liberty of the subject and have vindicated and recovered the body of this fundamentall Liberty both of your Lordships of our selves from shadowes which some time of the day are long sometimes short and sometimes long again and therefore no Judges are to be led by them Your Lordships are involved in the same danger and therefore ex congruo condigno we desire a conference to the end your Lordships might make the like declaration as we
be imprisoned before he be convicted according to the Law but if this return shall be good then his imprisonment shall not continue on for a time but for ever and the Subjects of this Kingdome may be restrained of their liberties perpetually and by Law their can be no remedy for the Subject and therefore this return cannot stand with the Laws of the Realm or that of Magna Charta Nor with the statute of 28 Ed. 3. ca. 3. for if a man be not bailable upon this return they cannot have the benefit of these two Laws which are the inheritance of the Subject If your Lordship shall think this to be a sufficient cause then it goeth to a perpetuall imprisonment of the subject for in all those causes which may concern the Kings Subjects and are appliable to all times and cases we are not to reflect upon the present time and government where justice and mercy floweth but we are to look what may betide us in the time to come hereafter It must be agreed on all sides that the time of the first commitment doth not appear in this return but by a latter warrant from the Lords of the Councell there is a time indeed expressed for the continuing of him in prison and that appeares but if this shall be a good cause to remand these Gentlemen to prison they may lie there this seven yeares longer and seven yeares after them nay all the dayes of their lives And if they sue out a writ of Habeas corpus it is but making a new warrant and they shall be remanded and shall never have the advantage of the Laws which are the best inheritance of every Subject And in Ed. 6. fol. 36. the Laws are called the great inheritance of every Subject and the inheritance of inheritances without which inheriritance we have no inheritance These are the exceptions I desire to offer to your Lordship touching the return for the insufficiency of the cause returned and the defect of the time of the first commitment which should have been expressed I will not labour in objections till they be made against me in regard the sttatute of Westminster primo is so frequent in every mans mouth that at the Common Law those men that were committed in four cases were not replevisable viz. those that were taken for the death of a man or the commandment of the King or his Justices for the forest I shall speak something to it though I intend not to spend much time about it for it toucheth not this Case we have in question For that is concerning a Case of the Common Law when men are taken by the Kings writs and not by word of mouth and it shall be so expounded as Master Stamford fol. 73. yet it is nothing to this Case for if you will take the true meaning of that statute it extends not at all to this writ of Habeas corpus for the words are plain they shall be replevisable by the Common writ that is by the writ de homine replegiando directed to the Sheriffe to deliver them if they were baileable but the Case is above the Sheriffe and he is not to be Judge in it whether the cause of the commitment be sufficient or not as it appears in Fitz Herbert de homine replegiando and many other places and not of the very words of the statute this is clear for thereby many other causes mentioned as the death of a man the commandment of the Justices c. In which the statute saith men are not replevisable but will a man conceive that the meaning is that they shall not be bailed at all but live in perpetuall imprisonment I think I shall not need to spend time in that it is so plain let me but make one instance A man is taken de morte hominis he is not baileable by writ saith this statute that is by the common writ there was a common writ for this Case and that was called de odio acia as appeareth Bracton Coron 34. this is the writ intended by the statute which is a common writ and not a speciall writ But my Lord as this writ de odio acia was before this statute so it was afterwards taken away by the statute of 28 Ed. 3. cap. 9. But before that sttatute this writ did lie in the speciall Case as is shewn in Brooks 9 th Reports Powlters Case and the end of this writ was that the Subject might not be too long detained in prison as till the Justices of Eyre discharged them so that the Law intended not that a man should suffer perpetuall imprisonment for they were very carefull that men should not be kept too long in prison which is also a Liberty of the Subject and my Lord that this Court hath bailed upon a suspicion of high treason I will offer it to your Lordship when I shall shew you presidents in these cases of a commitment by the Privy Councell or by the King himself But before I offer these presidents unto your Lordship of which there be many I shall by your Lordships favour speak a little to the next exception and that is the matter of the return which I find to be per speciale mandatum domini Regis 8. and what is that it is by this writ there may be sundry commands by the King we find a speciall command often in our Books as in the statute of Marlborough cap. 8. they were imprisoned Rediss shall not be delivered without the speciall command of our Lord the King and so in Bracton De Actionibus the last chapter where it appears that the Kings commandment for imprisonments is by speciall writ so by writ again men are to be delivered for in the case of Rediss or Post Rediss if it shall be removed by a Certiorare is by a speciall writ to deliver parties so that by this appears that by the Kings commandment to imprison and to deliver in those cases is understood this writ and so it may be in this case which we have heard And this return here is a speciall Mandatum it may be understood to be under some of the Kings Seals 42 Ass. and ought to be delivered and will you make a difference between the Kings command under his seal and his command by word of mouth what difference there is I leave it to your Lordships judgement but if there be any it is the more materiall that it should be expressed what manner of command it was which doth not here appear and therefore it may be the Kings command by writ or his command under his Seal or his command by word of mouth alone And if of an higher nature there is none of these commands then the other doubtlesse it is that by writ or under seal for they are of record and in these the person may be bailed and why not in this As to the legall forme admitting there were substances in the return yet
arrest by speciall command or otherwise and the answer was that the assent of the Lords established and ordained that the said Charter and other Statutes should be put in execution according to the petitition and that is without any disturbance by arrest by speciall command or otherwise for it was granted as it was petitioned In the same year for they were very carefull of this matter and it was necessary it should be so for it was then an usuall thing to take men by writs quibusdam de causis and many of these words caused many Acts of Parliament and it may be some of these writs may be shewn and I say in the same year they complained that men were imprisoned by speciall command and without indictment or other legall course of Law and they desired that thing may not be done upon men by speciall command against the great Charter The King makes answer that he is well pleased therewith that was the first answer and for the future he hath added farther if any man be grieved let him complain and right shall be done unto him This my Lord is an explanation of the great Charter as also the Statute of 37 Ed. 3. ch 18. is a commentary upon it that men should not be committed upon suggestion made to the King without due proofs of Law against them and so it is enacted twice in one year We find more printed Books as in Henry the sixth Minus de facts Fitz. 182. which is a strong case under favour in an action of Trespasse for cutting down trees the defendant saith that the place where the trees are cut is parcell of the Manor of B whereof the King is seised in fee and that the King did command him to cut them and the opinion of the Court was that this was no good plea without shewing the specialty of the command and they said if the King command me to arrest a man and I arrest him he shall have an action of false imprisonment against me altough it were done in the Kings presence In 1 Ioh. cap. 7. fol. 46. it is in print and there we leave it Hussey Chief Justice saith that Sir Iohn Markham told King Edward the fourth that he could not arrest a man upon suspition of felony or treason as any of his Subjects might because if he should wrong a man by such arrest the parties could have no remedy against him if any man shall stand upon it here is a signification of the Kings pleasure nor to have the cause of the commitment examined he hath here another signification of his pleasure by writ whereby the party is brought hither ad subjiciendum recipiendum that he hath made your Lordship Judge of that that should be objected against this Gentleman and either to punish him or to deliver him and if here be no cause shewn it is to be intended that the party is to be delivered and that it is the Kings pleasure it should be so and the writ is a sufficient warrant for the doing of it there being no cause shewn of the imprisonment and now my Lord I will speak a word to the writ of de homine replegiando and no other writ for that was the common writ and the four causes expressed in that Statue to wit the death of a man the command of the King or his Justices or Forrest were excepted in that writ before that Statute made as appears Bracton 133. so that the writ was at the Common Law before that Statute And it appears by our Books that if a man be brought hither by an Habeas corpus though he were imprisoned De morte hominis as in the 21 of Edward the fourth 7. Winkfield was bailed here this Court bailed him for he was brought hither ad subjiciendum recipiendum and not to lie in prison God knows how long and if the Statute should be expounded otherwise there were no bailing men outlawed or breakers of prisons for they are not within this Statute and yet this Court doth it at pleasure But plainly by the Statute it self it appears that it meant only to the common writ for the preamble recites that the Sheriffs and other have taken and kept in prison persons detected of felony and let out to plevin such as were not reprisable to grieve the one party and to the gain of the other and forasmuch as before this time it was not determined what prisoners were reprisable which not but onely in certain cases were expressed therefore it is ordained c. Now this is no more but for direction of the keepers of the prisons for it leaves the matter to the discretion of the Judges whether bailable or no not of the Judges for when the Statute hath declared who are repleviable who are not as men outlawed have abjured the Realm Proves such as be taken in the manner breakers of prisons burners of houses makers of false money counterfeiting of the Kings Seal and the like it is then ordained that if the Sheriff or any other let any go at large by surety that is not reprisable if he be Sheriff Constable or any other that hath the keeping of prisons and thereof be attainted he shall lose his office and fee for ever so that it extends to the common Goalers and keepers of prisons to direct them in what cases they shall let men to bail and in what cases not and that they shall not be Judges to whom to let to replevin and whom to keep in prison but it extends not to the Judges for if the makers of the Statute had meant them in it they should have put a pain upon them also So then I conclude upon these under your Lordships favour that as this case is there should have been a cause of the commitment expressed for these Gentlemen are brought hither by writ ad subjiciendum if they be charged and ad recipiendum if they be not charged and therefore in regard there is no charge against them whereupon they should be detained in prison any longer we desire that they may be bailed or discharged by your Lordship The Argument of Master Selden upon the Habeas corpus My Lords I am of Councell with Sir Edmond Hampden his case is the same with the other two Gentlemen I cannot hope to say much after that that hath been said yet if it shall please your Lordship I shall remember you of so much as is befallen my lot Sir Edmond Hampden is brought hither by a writ of Habeas corpus and the keeper of the Gate-house hath returned upon the writ that Sir Edmond Hampden is detained in prison per speciale mandatum Domini Regis mihi significatum per Warrantum duorum Privati Concilii dicti domini Regis and then he recites the warrants of the Lords of the Councell which is that they do will and require him to detain this Gentleman still in prison letting him know that his first imprisonment c. May it
and not by way of information out of another mans mouth may not be good as appeareth by the severall books of our law 23 Ed. 3. Rex vic 181. upon a Homine replegiando against the Abbot of C. the Sheriffe returneth that he had sent to the Bailiffe of the Abbot that answered him that he was the villain of the Abbot by which he might not make deliverance and a Sicut alias was awarded for this return was insufficient insomuch that he had returned the answer of the Bailiffe of the Abbot where he ought to have returned the answer of the Abbot himself out of his own mouth Trin. 22. Ed. 2. Rot. 46. parent vill Burg. Evesque de Norwich repl 68. Nat. Br. Case 34. Fitz. Nat. Br. 65. 34. Ed. 3. Excom 29. the case appeareth to be such in a trespasse the defendant pleadeth the plaintiffe is excommunicate and sheweth forth the letter of the Bishop of Lincoln witnessing that for divers contumacies c. and because he had certified no excommunic done by himself but by another the letter of excommunication was annulled for the Bishop ought to have certified his own act and not the act of another Hillarii 22 Hen. 8. Rot. 37. it appeareth by the return of an Habeas corpus that Iohn Parker was committed to prison for security of the peace and for suspicion of felony as per mandatum Domini Regis nunciatum per Robertum Peck de Cliffords Inne and upon his return Iohn Parker was bailed for the return Commiss fuit per speciale mandatum domini Regis nunciatum per Robertum Peck was not good insomuch that it was not a direct return that he was committed per mandatum Domini Regis And for the first point I conclude that this return is insufficient in form insomuch that it doth not make a precise and direct return that he was committed and detained by the speciall command of the King but onely as he was signified by the warrant of the Lords of the Councell which will not serve the turn and upon the book of 9 Hen. 6.44 the return of the cause of a mans imprisonment ought to be precise and direct upon the Habeas corpus insomuch as thereby to be able to judge of the cause whether it be sufficient or not for there may not any doubt be taken to the return be it true or false but the Court is to accept the same as true and if it be false the party must take his remedy by action upon the case And as concerning the matter of the return it will rest upon these parts First whether the return be that he is detained in prison by speciall commandment of our Lord the King be good or not without shewing the nature of the commandment or the cause whereupon the commitment is grounded in the return The second is whether the time of the first commitment by the commandment of the King not appearing to the Court is sufficient to detain him in prison Thirdly whether the imprisonment of the subjects without cause shewed but onely by the commandment of the King be warantable by the laws and statutes of this Realm As unto the first part I find by the books of our law that commandments of the King are of severall natures by some of which the imprisonment of a mans body is utterly unlawfull and by others of them although the imprisonment may be lawfull yet the continuance of him without bail or mainprise will be utterly unlawfull There is a verball command of the King which is by word of mouth of the Kings onely and such commandment by the King by the books of our law will not be sufficient either to imprison a man or to continue him in prison 16.6 Monstrans de faict si upon an action of trespasse brought for cutting of trees the defendant pleadeth that the place where he cut them is parcell of the Manor of D. whereof the King is seised in fee and the King commanded him to cut the trees and the opinion of the Court there is that the plea in barre was ill because he did not shew any speciall commandment of the King and there it is agreed by the whole Court that if the King commandeth one to arrest another and the party commanded did arrest the other an action of trespasse or false imprisonment is maintainable against the party that arrested him although it were done in the presence of the King 39 H. 6.17 where one justifieth the seisure of the goods of a person that is outlawed by the commandment of the King such a party being no Officer may not in an action brought against him have any aid of the King for such a commandment given to one that is not an Officer will not any wayes avail him that is to justifie himself by the return of that commandment 37 Hen. 6.10 If the king give me a thing and I take the same by his commandment by word of mouth it is not justified by law nothing may passe without matter of Record 10 Hen. 7.7 17.18 it is agreed that Justices may command one to arrest another that is in their view or presence but not one that is out of their view or presence And Keble 10 Hen. 7.13 said that where one is arrested by a parroll command in their view or presence it is fitting that a record may be made of it insomuch that without such a record there can hardly be a justification in another Term. Secondly there is a commandment of the King by his Commission which according unto Calvins case in the seventh Report it is called by him breve mandatum non remediabile and by virtue of such a commandment the King may neither seise the goods of his subject nor imprison his body as it is resolved in 42 Ass. pl. 5. where it is agreed by all the justices that a Commission to take a mans goods or imprison his body without indictment or suit of the party or other due processe is against the Law Thirdly there is a commandment of the King which is grounded upon a suggestion made to the King or to his Councell and if a man be committed to prison by such a suggestion by commandment of the King it is unlawfull and not warranted by the Law of the Realm The 25 of Edward the third cap. 4. de Provisoribus whereas it is contained in the great Charter of the Franchises of England that none shall be imprisoned or arrested of his Free-hold or of his Franchises nor of his free customes but by the Law of the land It is awarded consented and established that from henceforth none shall be taken by petition or suggestion made to our Soveraign Lord the King or to his Councell untill it be by indictment or presentment of his good and lawfull neighbours where such deeds are done in due manner or by processe made by writ originall at the common law nor of his free-hold unlesse he be duely brought
in and answer and forejudged of the same by way of Law and if any thing be done against the same it shall be redressed and holden for nought 37 Ed. 3. cap. 10. although it be contained in the great Charter that no man be taken or imprisoned or put out of his freehold without due processe of the law neverthelesse divers persons make false suggestions to the King himself as well for malice as otherwise whereof the King is often grieved and divers of the Realm put in great damages contrary to the form of the same Statute Wherefore it is ordained that all they that make such suggestions be sent with their suggestions to the Chancellour or Treasurer and they and every of them find sureties to pursue their suggestions and endure the same pain that the other should have had if in case that his suggestion be found untrue and that then processe of the law be made against them without being taken or imprisoned against the form of the same Charter and other statutes So that it appears by these severall statutes that such commandments of the King as are grounded upon suggestion either made to himself or to his Councell for the imprisonment of a man are against the law Fourthly I find that there is a commandment of the King which is made under his hand with his signet for in the fourth and the fifth of Philip and Mary Dier 162. where the statute of 1 Rich. 2. cap. 11. restraineth the Warden of the Fleet for letting any man at large that is in upon judgement at the suit of any man except it be by writ or other commandment of the King It was doubted whether the Queen by letter under her hand and privy signet doth give commandment to the Warden of the Fleet to suffer a man that is there in execution to go about his businesse or the affaires of the Queen whether this be a warrantable command or not within the Statute and the Law hath alwayes been conceived upon that book that such a commandment is not warrantable by Law and if such a command will not serve the turn to give unto a man his liberty which the Lord favoureth and had the countenance of an Act of Parliament for the doing of it then I conceive it should be a more strong case the King should not have power by his commandment to imprison a man without due processe of the Law and restrain him of his liberty when there had been so many Acts of Parliament made for the liberty of the subjects Fifthly I do find that there is the commandment of the King which is by his writ under the Great Seal or the seal of the Court out of which it issueth Regist. f. 69. 70. in the writ de cautione admittenda I find the words mandatum Regis expounded to be breve Regis for the writ goeth Rex vic Salutem Cum nuper ad requisitionem S. de Isle Canonici Lincol. venerabilis Patris H. Lincoln Episcopi ipso in remotis agente Vicarii general per Literas suas patentes nobis significantis Nicho. B. dict Lincoln Dioc. propter manifestam contumaciam Authoritate ipsius Episcopi Ordinar excommunicat esse nec si velle c. vobis praeceperimus quod praefat c. satisfactum ex parte ipsius N. qui virtute mandati nostri praedict per vos Capt. in Prison nostra de Newgate detent existit c. nos nolentes quod praefat N. per breve nostrum praedict via praecludatur c. prosequi possit in forma Iuris maxim c. integer esse debeat vobis praecipimus quod scire c. quod sit c. quare praedict N. à Prisona praedict deliberari non debeat Rex Iusticiar suis de Banco salut Cum nos nuper ad significationem S. de Isle c. usque ibi excommunicat extitisse nec se velle c. esset satisfactum ex parte ipsius N. virtute mandati nostri praed capt in Prisona nostra de Newgate tunc detenti c. nolentes eo praetextu praefato N. per breve nostrum praed via praecludat quo minus appellac suae negotium c. processerat appellant statut c. per breve nostrum praeceperimus praefat vic quod scire facerent c. signific consult circumspect in Placitis per breve praedict coram vobis pendentibus procedere valeatis secundum legem consuetudinem Regni nostri Stamf. 72.5 E. 3. c. 8. 1 E. c. 3.9 saith that every Capias in a personall action is a Commandment of the King for it is Praecipimus tibi quod capias c. and yet the defendant as there it is said is replevisable by the Common Law 7 R. 20. a. Calvins case saith that there are two kind of writs viz. brevia mandatoria remedialia brevia mandatoria non remdeialia breuia mandatoria remedialia are writs of Right Formedon c. debts trespasses and shortly all writs reall and personall whereby the party wronged is to recover somewhat and to be remedied for that wrong which is done unto him Sixthly I do finde by our books of Law and by the Register that this speciall mandatum domini Regis is expounded to be his writ and that the Law taketh no notice of any other speciale mandatum then by this writ the which being so when the return is made that he is imprisoned and detained in prison by the speciall commandment of the King how can the Court adjudge upon this return that Sir Iohn Corbet ought to be kept in prison and not to be bailed when the nature of the speciall commandment is not set forth in the return whereby it may appear unto the Court that he is not bailable In Bracton c. 12.112 you shall see a writ reciting Praecipimus tìbi quod non implacites nec implacitari permittas talem de libero tenemento suo in tali villa sine speciali praecepto nostro vel Capitalis Iusticiar nostri And the reason of it there is given quia nemo de libero tenemento sine brevi sive libello conventionali nisi gratis voluerit respondebit So as the exception of speciall commandment by the very book appeareth to be breve sive libellus conventionalis Regist. 271. the writ of Manucaption goeth in this manner Rex vic Salut Cum nuper assignaverimus dilectos fideles nostros A. B. C. D. ad inquisitiones de forstallariis transgressionibus contra formam statuti dudum apud Winton editi in com tuo faciend ad illos quos inde culpabiles invenirent capiend in Prisona nostra salvo custod faciend donec aliud inde praecepissemus quod C. D. E. pro hujusmodi forstallamentis transgressionibus unde coram praefat A. B. C. indict fuerint capt in Prisona de L. detent exist à qua delibera ri non possunt sine mandato nostro
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 Mr 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 or direction the same was here said again by way of Reply to him as is before said touching the letter in Beckwithes case After these were dispatched he came to urge the eight Presidents which seemed to make for the other side against the resolution of the House of Commons which eight were used and Coppies of them also were given in to the Lords at the first conference Of these eight the first 4. were urged by him as being of one kinde the difference of them onely being such that save onely in the names of Prisons and of Persons they are but the self same The force of these four he objected thus that Richard Everard for the purpose in the first of them which is 5. H. 7. Rot. 18. Roger Cherry in the second of them which is 8. H. 7. Rot. 12. Christofer Burton in the third of them which is 9. H. 7. Rot. 14. and George Urswick in the fourth of them which is 19. H. 7. Rot. 33. were returned into the Kings-bench upon several Writs of Habeas corpus to have been committed and detained in the several Prisons whence they came per mandatum Domini Regis that upon that return they were committed to the Marshall of the Kings-bench and that however it had been objected against those Presidents that this kinde of commitment was by the course of that Court alwayes done before the bayling of the Prisoner Yet that it did not appear that they were bayled The Reply to this Objection was That by constant course of Kings-bench whosoever came in upon Habeas Corpus or otherwise upon any Writ in that Court cannot be bayled untill he be first committed to the Marshall of that Court and that thence it was that all those 4. were committed to the Marshall as appears by the entry Qui committitur Mareschallo c. which is the usual entry in such a case and that the Clerks of that Court acknowledge this course and entry to be most constant So that all the inference that can be made out of these four is but that four Prisoners being brought from several Prisons by Habeas Corpus into the King-bench and return'd to stand committed per mandatum Domini Regis were so far from being remaunded by the Law that in all these four cases they were partly first taken from the several Prisons wherein they had been detained by such a general command which could not have been if they had not been adjudged in every one of the cases to have been baylable by the Court and that this commitment of them to the Marshall of the Kings-bench was the first step towards the bayling of them as in all other cases But that it appears not that either they ever demaunded to be bayled or that they were able to finde sufficient bayl And if they did not the one or could not do the other it may follow indeed that they were not bayled But this commitment to the Kings-bench being the first step to the bayling of them as by the constant course it is shews most plainly that they were baylable by the Law which is the onely thing in question So that although these 4. Presidents were rancked among them that may seem to make against the resolution of the House of Commons which was done both because they have this small colour in them
grievances breeds hate and dislike And because we have not to give what is asked Yet to give freely what we intend to give and so by this freeness we shall win the Kings heart M r. KERTON HE desires to know the Rock to the end we may avoid it and not to go back but forward in our conclusion S r. ROBERT PHILIPS HIs good hopes are in his Majesties royal care and wisdom That the free and great Councel is the best but time and hope of change is coming towards us Rome and Spain trench deeply into our Councels That heretofore there hath been a fair progress on both parts according to the saying of the late King If the Parliament did or should give more then the Countrey could bear they gave him a purse with a knife in it Serjant HOSKINS THat knowing our own rights we shall be better enabled to give Two legs go best together ' our just grievances and our supply which he desires may not be seperated for by presenting them together they shall be both taken or both refused Serjant ASHLEYS Argument seconding M r. ATTORNEY in the behalf of his MAJESTIE I Hope it will be neither offensive nor tedious to your Lordships if I said somewhat to second M r. Attorney which I the rather desire because yesterday it was taken by the Gentlemen of and argued on the behalf of the Commons that the cause was as good as gained by them and yielded by us in that we acknowledged the Statute of Magna Charta and the other subsequent Statutes to be yet in force for on this they inforced this general conclusion That therefore no man could be committed or imprisoned but by due process presentment or indictment Which we say is a non sequitur upon such our acknowledgement for then it would follow by necessary consequence that no imprisonment could be justified but by process of Law which we utterly deny For in the cause of the Constable cited by M r. Attorney it is most clear that by the ancient Law of the Land a Constable might ex officio without any Warrant Arest and restrain a man to prevent an affray or to suppress it And so is the Authority 38. Hen. 8. Brooks abstract So may he after the affray apprehend and commit to Prison the Person that hath wounded a man that is in peril of death and that without Warrant or Process as it is in 38. E. 3. fol. 6. Also any man that is no Officer may apprehend a Fellon without Writ or Warrant or pursue him as a Wolf and as a common enemy to the Common-wealth as the Book is 14. H. 8. fol. 16. So might any one arrest a Night-walker because it is for the common profit as the reason is given 4. Hen. 7. fol. 7. In like manner the Judges in these several Courts may commit a man either for contempt or misdemeanour without either Process or Warrant other then take him Shrief or take him Marshall or Warden of the Fleet. And the Adversaries will not deny but if the King will alleadge cause he may commit a man per mandatum as the Judges do without Process or Warrant And various are the cases that may be instanced wherein there may be a Lawfull commitment without Process Wherefore I do possitively and with confidence affirm that if the imprisonment be Lawfull whether it be by Process or without Process it is not prohibited by the Law Which being granted then the question will aptly be made whether the King or Councel may commit to Prison per legem terrae were onely that part of the Municipal Law of this Realm which we call the 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 nullus 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 dic in diem de horâ 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
of explanation we shall provide onely that the cause ought to be expressed upon the return of the Habeas Corpus then out of the words of the Statute it will necessarily be inferred that before the return of the Habeas Corpus the cause need not to be expressed because the Statute hath appointed the time of the expression of the cause And it will be construed that if the makers of the Statutes had intended that the cause should have been soener shewen they would have provided for it by the Act and then the Act which we term an Act of explanation will be an Act of the abridging of Magna Charta and the rest of the Statutes Or if this Act do not make the commitment without expressing the cause to be Lawfull yet it will clearly amount to a tolleration of the commitment without expressing the cause untill the Habeas Corpus or to a general or perpetual dispensation beginning with and continuing as long as the Law it self And in my understanding the words in this intended Law that no Freeman can be committed without cause can no wayes advantage us or satisfie this Objection for till the return of the Habeas Corpus he that commits is Judge of the cause or at least hath a license by this Law till that time to conceal the cause and the Goaler is not subject to any action for the detaining of the Prisoner upon such command for if the Prisoner demanded the cause of his inprisonment of the Goaler It will be a safe answer for him to say that he detains the Prisoner by Warrant and that it belongs not unto him to desire those which commit the Prisoner to shew the cause untill he returns the Habeas Corpus and if the Prisoner be a Suitor to know the cause from those that committed him it will be a sufficient answer for them to say they will express the cause at the Return of the Habeas Corpus In this cause there will be a wrong because the commitment is without cause expressed and one that suffers that wrong viz. the party imprisoned and yet no such wrong doer but may excuse if not justifie himself by this Law In making of Laws we must consider the inconveniences which may ensue and provide for the prevention of them lex caveat de futuris I have taken into my thoughts some inconveniences which I shall expose to your considerations not imagining that they can happen in the time of our gracious Soveraign but in an Act of Parliament we must provide for the prevention of all inconveniences in future times 1. If a man be in danger to be imprisoned in the beginning of a long vacation for refusing to pay some small summe of money and knows that by this Act he can have no inlargement till the Return of the Habeas Corpus in the Term and that the charge of his being in Prison and of his inlargement by Habeas Corpus will amount to more then the summe he will depart with money to prevent his imprisonment or to redeem himself thence because he cannot say any man doth him wrong untill the Return of the Habeas Corpus the Law resolves a man will pay a Fine rather then be imprisoned for the Judgement which is given when one is fined is Ideo Capiatur and the highest execution for dept is a Capias ad satisfaciendum the Law presuming any man will depart with his money to gain his Liberty and if the Prisoner procure an Habeas Corpus and be brought into the Kings-bench by virtue of it yet the cause need not to be then expressed The provision of this Law being that if no cause be then expressed he shall be bayled and no cause being shewen upon the Return of the Habeas Corpus yet may be pretended that at the time of his Commitment there were strong presumptions of some great offence But upon examination they are cleared or it may be said that the offence was of that nature that the time of his imprisonment before the Return was a sufficient punishment and we may be frequently imprisoned in this manner and never understand the cause and have often such punishment and have no means to justifie our selves and for all these proceedings this Law will be the justification or colour 2. If by this Act there be a Tolleration of imprisonment without shewing cause untill the Return of the Habeas Corpus yet it is possible to accompany that imprisonment with such circumstances of close restraint and others which I forbear to express as may make imprisonment for that short time as great a punishment as a perpetual imprisonment in our ordinary manner 3. The party may be imprisoned a long time before he shall come to be delivered by this Law The place of his imprisonment may be in the furthest parts of this Kingdom The Judges always makes the Return of the Habeas Corpus answerable to the distance of the Prison from Westminster The Goaler may neglect the Return of the first Process and then the party must procure an alias and the Goaler may be then in some other imployment for the King and excuse the not returning of the body upon that Process and this may make the imprisonment for a year and in the end no cause being returned the party may be discharged but in the mean time he shall have imprisonment he shall never know the cause he shall have no remedy for it nor be able to question any for injustice which have not a justification or excuse by this Law 4. The party may be imprisoned during his life and yet there shall be no cause ever shewn I will instance in the manner a man may be committed to the furthest part of the Kingdom Westward he obtains an Habeas Corpus Before the Goaler receives the Habeas Corpus or before the returns it the Prisoner by Warrant is removed from that Prison to another it may be the furthest Northern part of the Realm the first Goaler returns the special Matter which will be sufficient to free himself and in like manner the Prisoner may be translated from one Prison to another and his whole life shall be a preregrination or wayfairing from one Goal to another and he shall never know the cause nor be able to complain of any who cannot defend their actions by this Bill 5. If the Prisoner be brought into the Court by Habeas Corpus and no cause expressed and thereupon he be enlarged he may be partly committed again and then his enlargement shall onely make way for his commitment and this may continue during his life and he shall never know the cause and this not remedied but rather permitted by this Act. And there are also considerable in this Matter the expence of the party in Prison His Fees to the Goaler his costs in obtaining and prosecuting an Habeas Corpus and his charges in removing himself attended with such as have the charge of his conduct and
shall or will at any time hereafter commit or command to Prison or otherwise restrain the Person of any for not lending money unto us or for any other cause which in our conscience doth not concern the State the publick good and safety of us and of our people we will not be drawn to pretend any cause which in our Judgements is not or is not expressed which base thought we hope no man will imagine can fall into our royal breast that in all cases of this nature which shall hereafter happen we shall upon the humble Petition of the party or access of our Judges to us readily and really express the cause of their commitment or restraint so soon as with conveniency and safety the same is fit to be disclosed and expressed That in all causes Criminal of ordinary Jurisdiction our Judges shall proceed to the deliverance and baylment of the Prisoner according to the known and ordinary rules of the Laws of this Land and according to the Statutes of Magna Charta and those other six Statutes insisted upon which we do take knowledge stand in force and which we intend not to abrogate against the true intention thereof Thus we have thought fit to signifie unto you the rather for shortning any long delayes of this question the season of the year so far advance and our great occasions of State not lending us many dayes for long continuance of this Session of Parliament Given under our Signet at our Pallace of Westminster the 12. of May in the fourth year of our Raign The KINGS Message by the Lord Keeper 21. May 1628. HIs Majestie commanded me to signifie to your Lordships that the business concerning your part presented by the Commons to the Lords concerning the Liberty of the Subject wholly depends upon your Lordships and because his affairs are pressing and that he is very suddenly to take a Journey to Portsmouth As also because his Majesty would have the business put in a good forwardness before his going thither his Majestie desires your Lordships this day to proceed to a resolution whether you will joyn with the House of Commons in the Petition or not M r. MASONS speech concerning the Addition propounded by the Lords to be added to the Petition of Right IN our Petition of Right to the Kings Majestie we mentioned the Laws and Statutes by which it appeared that no Tax Loan or the like ought to be levied by the King but by common assent in Parliament That no Freeman ought to be imprisoned but by the Law of the Land That no Freeman ought to be compelled to suffer Souldiers in his house In the Petition we have expressed the breach of these Laws and desire that we may not suffer the like all which we pray as our Rights and Liberties The Lords have proposed an addition to this Petition in these words We humbly present this Petition to your Majestie not onely with a care of our own Liberties but with a due regard to leave intyre that Soveraign power wherewith your Majesty is intrusted for the protection safety and happiness of your people and whether we shall consent unto this addition is the Subject of this dayes discourse And because my Lord Keeper at the last conference declared their Lordships had taken the words of the Petition apart The word leave in a Petition is of the same nature as saving in a grant or Act of Parliament when a Man grants but part of a thing he saves the rest when he Petitions to be restored but to part he leaveth the rest then in the end of our Petition the word leave will imply that something is to be left of that or at least with a Reverence to what we desire The word entyre is very considerable a Conquerour is bound by no Law but hath power dare leges his will is a Law and although William the Conquerour at first to make his way to the Crown of England the more easie and the possession of it the more sure claiming it by little but afterwards when there were no powerfull pretenders to the Crown The little of Conquest to introduce that absolute power of a Conquerour was claimed and that Statute of Magna Charta and other Statutes mentioned in our Petition do principally limmit that power I hope it is as Lawfull for me to cite a Jesuite as it is for Dr. Manwaring to falsifie him Suares in his first book de legibus cap. 17. delivered his opinion in these words amplitudo restrictio potestatis Regum circa ea quae per se mala vel injusta non sunt pendet ex arbitrio hominum ex ambigua convencione vel pacto inter Reges Regnum And the further expresseth his opinion that the King of Spain was so absolute a Monarch that he might Lawfully impose tribute without consent of his people untill about 200. years since when it was concluded between him and his people that without consent of his people by proxies he should not impose any Tribute And Suares opinion is that by that agreement the Kings of Spain are bound to impose no Tribute without consent And this agreement that Author calls a restraining of that Soveraign power the Statutes then mentioned in our Petition restraining that absolute power of a Conquerour if we recite those Statutes and say we have the Soveraign power intire we do not take away that restraint which is the virtue and strength of those Statutes and set at Liberty the claim of the Soveraign power of a Conquerour which is to be limitted and restrained by no Laws this may be the danger of the word entyre The next words delivered by the Lords as observable is the particle that because it was said that all Soveraign power is not mentioned to be left but onely that with which the King is trusted for our protection safety and happiness But I conceive this to be an exception of all Soveraign power for all Soveraign power in a King is for the protection safety and happiness of his people If all Soveraign power be excepted you may easily Judge the consequence all Loans and Taxes being imposed by colour of that Soveraign power The next word is trusted which is very ambiguous whether it be meant trusted by God onely as a Conquerour or by the people also as King which are to Govern also according to Laws ex pacto In this point I will not presume to adventure further onely I like it not by reason of the doubtfull exposition it admits I have likewise considered the proposition it self and therein I have fallen upon the dilemma that this addition shall be construed either to refer unto the Petition or not If it doth refer unto the Petition it is meerly useless and unnecessary and unbefitting the Judgement of this grave and great Assembly to add to a Petition of this weight If it hath reference unto it then it destroys not onely the virtue and strength of our
Petition of Right but our rights themselves for the addition being referred to each part of the Petition will necessarily receive this construction That none ought to be compelled to make any guift loan or such like charge without common consent or Act of Parliament unless it be by the Soveraign power with which the King is trusted for the protection safety and happiness of his people That none ought to be compelled to sojourn or billet Souldiers unless by the same Soveraign power and so of the rest of the Rights contained in the Petition And then the most favourable construction will be that the King hath an ordinary Prerogative and by that he cannot impose Taxes or Imprison That is he cannot impose Taxes at his will to imploy them as he pleaseth that he hath an extraordinary and transcendent Soveraign power for the protection and happiness of his people and for such purpose he may impose Taxes or billet Souldiers as he pleaseth and we may assure our selves that hereafter all Loans Taxes and billeting of Souldiers will be said to be for the protection safety and happiness of the people Certainly hereafter it will be conceived that an House of Parliament would not have made an unnecessary addition to this Petition of Right and therefore it will be resolved that the addition hath relation to the Petition which will have such operation as I have formerly declared and I the rather fear it because the late Loan and Billeting have been declared to have been by Soveraign power for the good of our selves and if it be doubtfull whether this proposition hath reverence to the Petition or not I know not who shall Judge whether Loans or Imprisonments hereafter be by that Soveraign power or not A Parliament which is made a body of several wits and may be dissolved by one Commission cannot be certain to decide this question We cannot resolve that that the Judges shall determine the words of the Kings Letter read in this House expressing the cause of Commitment may be such that the Judges have not capacity of Judicature no rules of Law to direct guide their Judgements in cases of that transcendent nature the Judges then and the Judgements are easily conjectured It hath been confessed by the Kings Councel that the Statute of Magna Charta bindes the King and his Soveraign power cannot be divided from himself If then the Statute of Magna Charta bindes the King it bindes his Soveraign power if to the Petition these words be added the exposition then must be that the Statute of Magna Charta binds the Kings Soveraign power Saving the Kings Soveraign power I shall endevour to give some answer to the reasons given by the Lords The first is that it is the intention of both Houses to maintain the just Liberty of the Subject and not to diminish the just power of the King and therefore the expression of that intention in this Petition cannot prejudice us which I answer First that our intention was and is as we then professed and no man can assign any particuler in which we have done to the contrary Neither have we any way transgressed in that kinde in this Petition and if we make this addition to the Petition it would give some intimution that we have given cause or colour of offence therein which we deny and which if any man conceive so that he would assign the particuler that we may give an answer thereunto By our Petition we onely desire our particuler Rights and Liberties to be confirmed to us and therefore it is not proper for us in it to mention Soveraign power in general being altogether impertinent to the matter in the Petition There is a great difference between the words of the addition and the words proposed therein for reason viz. between just power which may be conceived to be limmitted by Laws and Soveraign power which is supposed to be transcendent and boundless The second reason delivered by their Lordships was that the King is Soveraign That as he is Soveraign he hath power and that that Soveraign power is to left for my part I would leave it so as not to mention it but if it should be expressed to be left in this Petition as it is proposed it must admit something to be left in the King of what we pray or at least admit some Soveraign power in his Majestie in these Priviledges which we claim to be our Right which would frustrate our Petition and destroy our Right as I have formerly shewed The third reason given from this addition was that in the statute Articuli super Chartas there is a saving of the right and seigniory of the Crown To which I give these answers That Magna Charta was confirmed above 30 times and a general saving was in none of these Acts of confirmation but in this onely and I see no cause we should follow one ill and not 30 good Presidents and the rather because that saving produced ill effects that are well known That saving was by Acts of Parliament The conclusion of which Act is that in all those Cases the King did will and all those that were at the making of that Ordinance did intend that the Right and Seigniory of the Crown should be saved By which it appears that the saving was not in the Petition of the Commons but added by the King for in the Petition the Kings will is no expressed In that Act the King did grant and depart with to his people divers Rights belonging to his prerogative as in the first Chapter he granted that the people might choose three Men which might have power to hear and determine complaints made against those that offended in any point of Magna Charta though they were the Kings officers and to fine and ransome them and in the 8.12 and 19. Chapter of that Statute the King departed with other prerogatives and therefore there might be some reason of the adding of that Soveraign by the Kings Councel But in this Petition we desire nothing of the Kings Prerogative but pray the enjoying of our propper and undoubted Rights and Priviledges and therefore there is no cause to add any words which may imply a saving of that which concerns not the matter in the Petition The 4. reason given by their Lordships was that by the mouth of our Speaker we have this Parliament declared that it was far from our intention to incroach upon his Majesties Prerogative and that therefore it could not prejudice us to mention the same resolution in an addition to this Petition To which I answer that that declaration was a general answer to a Message from his Majestie to us by which his Majestie expressed that he would not have his Prerogative streitned by any new explanation of Magna Charta or the rest of the Statutes and therefore that expression of our Speakers was then propper to make it have reference to this Petition there being nothing therein
an accompt of my actions to none but to God alone It is known to every one that a while ago the House of Commons gave me a Remonstrance how acceptable every man may judge and for the merrit of it I will not call that in question for I am sure no wise man can justifie it Now since I am truely informed that a second Remonstrance is preparing for me to take away the profit of my Tonnage and Poundage one of the chief maintenances of the Crown by alleadging that I have given away my right thereof by my answer to your Petition This is so prejudiciall to me that I am forced to end this Session some few hours before I meant it being not willing to receive any more Remonstrances to which I must give an harsh answer And since I see to that end the House of Commons beginneth already to make false constructions of what I granted in your Petition least it be worse interpreted in the Countrey I will now make a Declaration concerning the true intent thereof The profession of both Houses in the time of hammering this Petition was no was to trench upon my prerogative saying they had neither intention nor power to hurt it Therefore it must needs be conceived that I have granted no new but confirmed the ancient Liberties of my Subjects yet to shew the clearness of my intentions that I neither repent nor mean to recede from any thing I have promised you I do here declare that those things which have been done whereby many had some cause to suspect the libertie of the Subject to be trenched upon which indeed was the first and true ground of the Petition shall not hereafter be drawn in example for your prejudice and in time to come in the word of a King you shall not have like cause to complain But as for Tonnage and Poundage it is a thing I cannot want and was never intended by you to ask never meant I am sure by me to grant To conclude I command you all that are here to take notice of what I have spoken at this time to be the true intent and meaning of what I granted in your Petition but especially you my Lords the Judges for to you onely under me belongs the interpretation of Laws for none of the Houses of Parliament either joynt or separate what new doctrine soever may be raised have any power either to make or declare a Law without my consent The Second Remonstrance Most Gratious Soveraign YOur Majesties most Loyall and Dutifull Subjects the Commons in this present Parliament Assembled being in nothing more carefull then of the Honour and prosperity of your Majesty and the Kingdom which they know doth much depend upon your happy Union and relation betwixt your Majestie and your people do with much sorrow apprehend that by reason the incertainty of their continuance together the unexpected interruptions which have been cast upon them and the shortness of time in which your Majestie hath determined to end this Session they cannot bring to maturity and perfection diverse businesses of waight which they have taken into consideration and resolution as most important for the common good Amongst diverse other things they have taken in especial care for preparing a Bill for the granting to your Majestie such a subsedy of Tonnage and Poundage as might uphold your profit and revenew in as ample manner as their just care and respect of Trade wherein not onely the prosperity but even the life of the Kingdom would permit but being a work which will require much time and preparation by conference with your Majesties Officers and with the Merchants not onely of London but also of other remote parts they finde it not possible to be accomplished at this time wherefore considering it will be much more prejudiciall to the right of the Subject if your Majestie should continue to receive the same without Authority of Law after the determination of a Session then if there had been a recess by adjournment onely in which case that intended grant would have related to the first day of the Parliament and assuring themselves your Majesty is resolved to observe that your Royall answer which you have lately made to the Petition of Right of both Houses of Parliament Yet doubting lest your Majesty may be misinformed concerning the particular case as if you might continue to take those subsedies of Tonnage and Poundage and other impositions upon Merchants without breaking that answer they are forced by that dutie which they owe to your Majestie and to those whom they represent to declare that there ought not any imposition to be laid upon the goods of Merchants exported or imported without common consent by Act of Parliament which is the right and inheritance of your Subjects founded not onely upon the most ancient and Original constitution of this Kingdom but often confirmed and declared in divers Statute Laws And for the better manifestation thereof may it please your Majestie to understand that although your Royall predecessors the Kings of this Realm have often had such subsedies and impositions granted unto them upon diverse occasions especially for the guarding of the Seas and safe-guard of Merchants yet the Subjects have been ever carefull to use such cautions and limmitations in those grants as might prevent any claim to be made That such subsedies do proceed from duty not of free gift of the Subject and that they have heretofore used to limmit a time in such grants and for the most part but short as for a year or two and if it were continued longer they have sometimes directed a certain space of cessation and intermission that so the right of the Subject might be more evident At other times it hath been granted upon occasions of War for a certain number of years with proviso that if the War were ended in the mean time then the grant should cease And of course it hath been sequestred into the hands of some Subjects to be imployed for the guarding of the coasts 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
the Pardons were all drawn by Mr. Attorney before there was any Warrant Mr. Cromwell saith he had by relation from one Doctor Beard that Beard said Doctor Allablaster had preached flat Poperie at Pauls Cross the Bishop of Winchester commanded him as he was his Diocesan that he should preach nothing to the contrarie Sir Robert Philips saith One Doctor Marshall will relate as much said to him by the Bishop of Winchester as the Bishop said to Doctor Moor. Mr. Kirton That Doctor Marshall and Doctor Beard may be sent for This Bishop though he hath leapt through many Bishopricks yet he hath left Poperie behind him That Cosens frequenting the Printing-house hath caused the Book of Common-Prayer to be new printed and hath changed the word Minister into Priest and hath put out in another place the word Elect thus Cosens and his Lord go hand in hand Sir Miles Fleetwood saith We are to give Mountague his Charge and by his books charge him with Schisme in error of Doctrine Faction in point of State Thirdly matter of Aggravation Sir Walter Earl QUi color albus erat nunc est contrarius albo saith Doctor White hath sold his Orthodox books and bought Jesuiticall books moves that Bishop White may go arm in arm with Mountague Ordered a select Committee to be named to digest these things that have been alreadie agitated concerning the Innovation of Religion the Cause of the Innovation and the Remedie Thursday 12. THe Sheriff of London upon his submission at the Barre is released his imprisonment in the Tower Sir Iohn Elliot made the Report for the Committee in the examination of the complaint of Merchants and delivered the Orders and Injunctions into the Exchequer At a great Committee for Tonnage and Poundage Mr. SHERVIL in the Chair MAster Waller delivered a Petition from Chambers Felke and Gilborn in complaint of an information against them in the Star-chamber about Tonnage and Poundage that by the restraint of their goods they are like to be undone Sir Iohn Elliot THe Merchants are not onely kept from their goods by Customers but by a pretended Justice in a Court of Justice as the Exchequer I conceive if the Judges of that Court had their understanding enlightened of their error by this House they would reform the same and thereby the Merchants suddenly come to their goods Mr. Transtort conceiveth this to be a difficult way for us to go Mr. Corington Let it be done which way the House shall think fit but I conceive the Merchants shall have their goods before we can think of the Bill Kings ought not by the Law of God thus to oppress their Subjects I know we have a good King and this is the advice of his wicked Ministers but there is nothing can be more dishonorable unto him Mr. Stroud That it may be Voted That the Merchants may have their goods before we enter on the Bill Chancellor of the Dutchie I shall speak my opinion because I know not whether I shall have libertie to speak or you to hear any more All the proceedings of the King and his Ministers was to keep the Question safe untill this House should meet and you shall find the proceedings of the Chequer were Legal and thus much not knowing whether I shall have a days libertie to speak any more here again Mr. Thesaurer There is none here but would think it a hard thing that a Possession should be taken from us without any order for Sequestration that therefore it was not to be suffered that these few men should so unjustly disturb the Government of the State Desires there may be no interruption but that we may proceed to settle the Tonnage Mr. Corington I hope we may speak here as I hope we may speak in heaven and do our duties and let no fear divert us Mr. Waller It is not so few as 500 Merchants are threatened in this Sir Robert Phillips moveth we may go to the King and satisfie him of these interruptions Mr. Noy We cannot safely give unless we be in possession and proceedings in the Exchequer nullified and information in the Star-chamber and the Annexion to the Petition of Right and other Records I will not give my voice to this untill these things be made void for it will not be a Guift but a Confirmation Neither will I give unless these interruptions be removed and a Declaration in the Bill That the King hath no Right but by our free guift If it will not be accepted as is fit for us to give it we cannot help it If it be the Kings alreadie as by these new Records then we need not to give it Mr. Selden secondeth the Motion of sending a Message to the Exchequer declareth a President of a Message sent into the Chancerie for stay of proceedings in a Cause and it was obtained and whatsoever the Judges return it cannot prejudice us the Law speaks by Record and if these Records remain it will to posteritie explain the Law Mr. Littleton For the Right there is no Lawyer so ignorant to conceive it nor any Judge in the Land to affirm it is against giving to the King or going on the Bill In this case by the Law a man cannot be put to a Petition of Right but shall recover without Right Ordered that a Message shall be sent to the Court of the Exchequer That whereas certain goods of the Merchants have been stayed by Injunction from that Court by a false Affidavit and that the Customers that made the Affidavit have upon examination of this House confessed that the goods were stayed onely for duties contained in the book of Rates that therefore that Court would make void the orders and Affidavits in this business Friday 13. A Petition against one Burges a Priest who was here complained of the last Session some new Articles complained against him that he could not get a Copie of his Articles out of the house untill he was fain to get one counterfeit himself a Puritan to get the same and other new misdemeanors He is Ordered to be sent for Sir Iohn Elliot A Motion for Priviledge of Merchants Order is That any man having a Complaint depending here in the mean time intimation shall be given to my Lord Keeper That no Attachment shall go forth against the Merchants Chancellor of the Dutchie reported the Message to the Chequer Court that the Treasurer and the Barons will forthwith take the same into consideration and return answer It is Ordered Mr. Secretarie Cook shall take care that intimation shall be given to the Citie about the Fast. Doctor More called in saith he was referred to the Bishop of Winchester to be censured for preaching a Sermon the Bishop said he had heard him preach and deliver many prettie passages against the Papists which pleased King Iames but he must not do so now That you have a brother that preacheth against Bowing at the high Altar or at the name of Iesus and that
House saith he took Mr. Rolles goods by virtue of a Commission under the great Seal and other warrants remaining in the hands of Sir Iohn Elliot That he knew Mr. Rolles to be a Parliament man and Mr. Rolles demanded his Priviledge but he did understand his Priviledge to extend onely to his person not to his goods Mr. Dawes further saith he took those goods for such duties as were due in King Iames his time and that the King sent for him on Saturday last and commanded him to make no other answer Mr. Carmarthen another Customer called in saith he knew Mr. Rolles to be a Parliament man and that he told Mr. Rolles he did not find any Parliament man exempted in their Commission and if all the bodie of this House were in him he would not deliver the goods if he said he said he would not it was because he could not Mr. Wansforth That the delinquence of these men may be declined for the present and that we may first go to the King by way of Remonstrance considering the matter from whence this did arise If it were a single Priviledge it were easily determined Mr. Selden If there be any near the King that mispresents our actions let the curse light on them and not on us And believe it it is high time to right our selves and untill we vindicate our selves in this it will be in vain to sit here Sir Nathaniel Ritch moveth not to proceed in this untill it be by a select Committee considered in regard the King himself gave order to stay these goods though the goods of a Parliament man Sir Iohn Eliot The heart-bloud of the Libertie of the Common-wealth receiveth its life from the Priviledge of this House Resolved by question that this shall be presently taken into consideration And being conceived a business of great consequence It is Ordered That the House shall be dissolved into a Committee for the more freedome of debate Mr. Harbert in the Chair of that Committee Friday 20. A Petition of Complaint of a Conspiracie against a mans life by the Lord Deputie of Ireland and others to get the estate of the Petitioner to their own use Which is referred to the Committee for Justice Sir Iohn Worsnam another of the Customers called in saith he was commanded from the King that the goods were taken for duties and no more that he was sought to to Farm the Customs and told the King being sent for to him that he was not willing to deal therein untill the Parliament had granted the same Mr. Selden Conceiveth the case of these three Customers do differ in the degrees of their offences First for Sir Iohn Worsnam whatever he saith here he hath often confessed the goods were taken for Tonnage and Poundage so that as he broke the Priviledge in taking the goods so likewise his swearing one thing and the contrarie plainly appeareth upon proof and his own confession Mr. Dawes his cause differeth onely in this Sir Iohn Worsnam is a Patentee and Dawes onely a sharer Mr. Carmarthens cause differeth in saying if all the Parliament were in him he would not deliver his goods Ordered that Worsnams case shall be first decided And first the point is Whether by the Lease Sir Iohn Worsnam having seised the goods hath interest or no or whether he be onely an accounter to the King or not Mr. Glanvile Here is a sum of money advanced a Lease granted for certain years a certain Rent reserved and though there be a covenant to these men that if there be less it shall be abated yet that cannot take away their interest The substance of the offences made by the Customers in the Exchequer is that the goods of the Merchants seised by them and remaining in the Kings Store-house were seised onely for duties to the King mentioned in a Commission under the Kings signet and that themselves the Customers had no interest nor pretence of interest Saturday 21. A Petition by Mr. Thomas Symons in further complaint of the Customers and the Two shillings Six pence upon the Currants granted to the Lord Arrundell which is referred to the Committee for Merchants Sir Robert Pye saith The Lord of Arrundell hath delivered in his Pattent to the King two months since At the Committee for Merchants MAster Littleton argued whether a Member of the House hath his goods priviledged upon a Prorogation being seised for the King All Priviledge is allowed for the good of the Common-wealth and the Parliament Priviledge is above any other the Parliament onely can decide Priviledge of Parliament not any other Judge or Court whatsoever That a man may not distrain for rem in Parliament time but for all arrears after the Parliament he may distrain he is not to be imployed in any action personal nor his goods to be seised in the Exchequer A Record and Act of Parliament by Petition that because the servant of a Member of the Parliament is in the Kings Royal protection that it might be High Treason to kill a Parliament man and the King answered affirmatively which made it a Law And for the Judges to determin priviledge of Parliament were to supersede the Law and make it void For the Prorogation the Priviledge stands good untill the day of Prorogation notwithstanding a Proclamation of a new Prorogation That the King is never so high in point of State as in the Parliament Citeth the case of Sir Robert Howard in High Commission All Priviledges unless in Felonie Treason or breach of Peace Sir Robert Phillips Thus you see how fast the Prerogative of the King doth trench on the Libertie of the Subject and how hardly recovered Citeth many Presidents wherein the goods of a Member of the Parliament were Priviledged from seizure in the Exchequer In 19 Eliz. it was resolved in Parliament that 20 days before and 20 days after was the time of Priviledge Chancellor of the Dutchie That in this debate we may tie our selves to point of Law and Authoritie not to point of Reason And conceiveth that no Priviledge lieth against the King in point of his duties Sir Francis Seymour I desire it may first be debated Whether this case doth concern the King or no for I conceive these Customers have not made good that there was any right here is onely art used to entitle the King I conceive it a high offence for any man to lay the scandal upon the King for every project Mr. Glanveil Here is a cunning Project in the Exchequer to entitle the King a meer cunning Project and an offence of a high nature to shelter their projects under the Command of the Crown Secretarie Cook The point in question is not the right of the Subject but the right of Parliament Priviledge and that in the case of Mr. Rolles and this is onely now in question Sir Iohn Strangewaies I know no reason why we should draw a question upon our selves which we need not especially between the King and us
doth Dissolve this Parliament wherefore you have all free leave to depart to your Residences c. His MAIESTIES Letter with Queres concerning Ship-money and the Answer thereunto To Our trustie and welbeloved Sir Iohn Bramston Knight Chief Justices of our Bench Sir Iohn Finch Knight Chief Justice of our Court of Common-pleas Sir Humphrey Davenport Knight Chief Baron of Our Court of Exchequer and to the rest of the Judges of Our Courts of Kings Bench Common-pleas and the Barons of our Court of Exchequer CHARLES R. TRustie and welbeloved We greet you well Taking into Our Princely consideration that the Honor and Safetie of this our Realm of England the preservation whereof is onely intrusted to Our care was and is now more dearly concerned than in late former times as well by diverse Counsels and attempts to take from Us the Dominion of the Seas of which We are sole Lord and rightfull Owner or Propriator and the loss whereof would be of greatest danger and peril to this Kingdom and other our Dominions and many other wayes We for the avoiding of these and the like dangers well weighing with Our self that where the good and safety of the Kingdom in general is concerned and the whole Kingdom in danger there the charge and defence ought to be born by all the Realm in general did for preventing so publick a mischief resolve with Our self to have a Royal Navie provided that might be of force and power with Almightie Gods blessing and assistance to protect and defend this our Realm and our Subjects therein from all such perils and dangers and for that purpose We issued forth Writs under Our Great Seal of England directed to all Our Sheriffs of Our several Counties of England and Wales Commanding thereby all Our said Subjects in every Citie Town and Village to provide such a number of Ships well furnished as might serve for this Royal purpose and which might be done with the greatest equallitie that could be In performance whereof though generally throughout all the Counties of this Our Realm We have found in Our Subjects great chearfulness and alacritie which We graciously interpret as a testimonie as well of their dutifull affections to Us and Our service as of the respest they have to the publick which well becometh every good Subject nevertheless finding that some few happily out of ignorance what the Laws and Customs of this Realm are or out of a desire to be eased and freed in their particulars how general soever the charge be or ought to be have not yet paid and contributed the several Rates and Assesments that were set upon them foreseeing in our Princely wisdom that from hence diverse Suits and Actions are not unlikely to be commenced and prosecuted in Our several Courts at Westminster We desireous to avoid such inconveniences and out of Our Princely love and affection to all our people being willing to prevent such errors as any of Our loving Subjects may happen to run into have thought fit in a Case of this nature to advise with you Our Iudges who we doubt not are all well studied and informed in the rights of Our Sovereigntie And because the Trials in Our several Courts by the formalities in pleading will require a long protraction We have thought fit by this Letter directed to you all to require your Iudgements in the Case as it is set down in the inclosed Paper which will not onely gain time but also be of more Authoritie to over-rule any prejudicate opinions of others in the point Given under Our Signet at Our Court of White-hall the Second day of Febr. in the Twelfth Year of our Reign 1636. CHARLES R. WHen the good and safetie of the Kingdom in general is concerned and the whole Kingdom in danger Whether may not the KING by Writ under the Great Seal of England Command all the Subjects of this Kingdom at their charge to provide and furnish such number of Ships with Men Victuals and Munition and for such time as he shall think fit for the defence and safeguard of the Kingdom from such danger and peril and by Law compel the doing thereof in case of refusal or refractoriness And whether in such case is not the KING the sole Judge both of the danger and when and how the same is to be prevented and avoided CHARLES REX Answer MAy it please Your most excellent Majestie We have according to Your Majesties Command severally every man by himself and all of us together taken into serious consideration the Case and Questions signed by your Majestie and inclosed in your Royal Letter and we are of opinion that when the good and safetie of the Kingdom in general is concerned and the whole Kingdom in danger Your Majestie may by Writ under the Great Seal of England Command all the Subjects of this Your Kingdom at their charge to provide and furnish such number of Ships with Men Victual and Munition and for such time as Your Majestie shall think fit for the defence and safeguard of the Kingdom from such danger and peril and that by Law Your Majestie may compel the doing thereof in Case of refusal or refractoriness And we are also of opinion That in such Case Your Majestie is the sole Iudge both of the danger and when and how the same is to be prevented and avoided John Bramston John Finch Humfrey Davenport John Denham Richard Hutton William Jones George Crook Thomas Trevor George Vernon Robert Barkley Francis Crawley Richard Weston FINIS
frequently professed that they would not deminish nor blemish his Royal and just Prerogative so he presumes ye will all confess it a point of extraordinary grace and Justice in him to suffer it to rest so long in dispute without interruption But now his Majesty considering the length of time which it hath already taken and fearing nothing so much any future loss as that whereof every hour and minute is so precious and foreseeing that ordinary way of debate though never so carefull must in regard of the forms of both Houses necessarily take up more time then the affairs of Christendom can permit his Majesty out of his great and Princely care hath thought it expedient to shorten the business by declaring the clearness of his own heart and intention And therefore he hath commanded me to let you know that he holds the Statue of Magna Charta and the other 6. Statutes insisted on for the Subjects Liberty to be all in force and assureth you that he will maintain all his Subjects in the just freedom of their Persons and in safety of their estates and that he will Govern according to the Laws and Statutes of the Realm and that you shall finde as much security in his Majesties Royal word and promise as in the strength of any Law you can make so that hereafter you shall never have cause to complain The conclusion is this that his Majesty prayeth that God who hath hitherto blessed this Kingdom and hath put into his heart this day to come unto you will make the success hereof happy both to King and People And therefore he desireth that no doubt or mistrust may possesse any man but that you all will proceed speedily and unanimously with the business The Bishop of EXCETERS Letter sent to the House of COMMONS 28. April 1628. Gentlemen FOr God sake be wise in your well meant Zeal why do you argue away precious time that can never be revoked or repaired Woe is me while we dispute our friends perish and we must follow them where are we if we break and I tremble to think we cannot but break if we hold so stiff Our Liberties and proprieties are sufficiently declared to be sure and legal our remedies are clear and irrefragable what do we fear every Subject sees the way now chalked out for future Justice and who dares henceforth tread besides it Certainly whilest Parliaments live we need not misdoubt the violations of our Freedoms and Rights May we be but where the Law found us we shall sufficiently enjoy our selves and ours It is no season to search for more Oh let us not whilest we over-rigedly plead for an higher strain of safety put our selves into a necessity of ruine and utter despair of redress Let us not in the suspition of Evils that may be cast our selves into a present confusion If you love your selves and your Countrey remit some thing of your own terms and since the substance is yielded by your Noble Patriots stand not too rigorously upon points of circumstance Fear not to trust a good King who after the strict Laws made must be trusted with the execution Think that your Countrey nay Christendom lies on the mercie of your present resolutions Relent or farewell welfare From him whose faithfull heart bleeds in a vowed sacrifice for his King and Countrey EXCETER M r. HACKVVELL of LINCOLNS-INNE his Speech in the Lower-House 1. May 1628. SIR I Chose rather to discover my weakness by speaking then to betray my conscience by silence My opinion is that we shall do well totally to omit our resolution out of this Bill and rely onely upon a confirmation of the Laws The Objections made against this Opinion are two THe first is that we shall thereby recede from our own resolution The second that by a bare confirmation of the Old Laws without the inserting of our resolution by way of explanation we shall be but in the same case as before For the first that though we desire onely a confirmation without adding of our resolution we do not thereby recede from our resolution I reason thus Our resolution was drawn out of the sence of those Laws which are now desired to be confirmed so that no question can be made by any of us that have thus declared our selves but that our resolution is virtually contained in those Laws if that be so how can our acceptance of a confirmation of these Laws be a departure from our resolution Nay rather we think the contrary is true he that doubts that by confirmation of these Laws our resolution is not hereby confirmed doubts whether we have justly deduced our resolutions out of those Laws and so calls our resolution into question This Argument alone is in my opinion a full answer to that first Objection that in desiring of a bare confirmation of those Laws we depart from our resolutions This Argument alone is in my opinion a full answer to that first Objection that in desiring of a bare confirmation of these Laws we depart from our resolution The second Objection is that if we have nothing but a confirmation we are in no better case then we were before those late violations of the Law This I deny and do confidently affirm that although we have no more then a confirmation of those Laws which are recited in the Bill that is now before us we shall depart hence in far better case then we came and that in divers respects First some of the Laws recited in this Bill and desired to be confirmed are not printed Laws and are known to few Professors of the Law and much less to others and yet they are Laws of as great consequence for the liberty of the Subject if not of greater then any that are printed as namely 25. E. 3. No. 1. That loanes against the will of the lender are against reason and the freedom of the Realm 36. E. 3. No. 9. By which imprisonments by special commandment without due Process are forbidden These two are not printed The excellent Law de tollagio non Concedendo in print hath in a publick Court been by a great Councellour said to be but a Charter and no Law The Satute 1. Rich. 3. against benevolences is by some opinions in print an absolute Law if we can get all these goods Laws besides those 6. other which are expositions of Magna Charta in the point of the freedom and our Persons to be confirmed and put in one Law to the easie view of all men is not our Case far better then when we came hither Secondly will not the occasion of the making of this Law of confirmation so notoriously known be transmitted to all posterity certainly it will never be forgotten that the occasion thereof was the imprisonment of those worthy Gentlemen for not lending and the resolution in the Kings-bench in denying to bayl them and is not the occasion of the making of a Law a good rule to expound it If so
then by giving a confirmation upon this occasion we have bettered our Case very much Thirdly have not the Judges in the Kings-bench in open Parliament upon our complaint disclaimed to have given any Judgement in the point which generally before by the Parliament was otherwise conceived for now they say it was but an Award and no Judgement Will such a Notorious Act upon so important an occasion in so publick a place be quickly forgotten Nay will not the memorie of it for ever remain upon Records is not our Case then much better then when we came hither Fourthly will not the resolution of this House and all our Arguments and reasons against imprisonment without a Cause expressed which no doubt by the course we have taken will be transferred to posterity be a great means to stay any Judge hereafter for declaring any Judgement to the contrary especially if there be likelyhood of a Parliament is not our Case in this very much amended Lastly have we not received Propositions from the Lords wherein amongst other things they declared that they are not out of love with our proceedings is not this a great strenghtning to it but after so long debate amongst them about it they cannot take any just exception to it and doth not this also much amend our Case From all these reasons I conclude that the second Objection that by a confirmation we are in no better case then when we came together is also a weak Objection Now for reasons to move us to proceed in this course of accepting a confirmation First we have his Majesties gracious promise to yield to a confirmation of the old Laws from which we may rest most assured he will not depart If we tender him with all our Proposition to be enacted we have cause to doubt that we shall loose both the one and the other Secondly we are no less assured of the Lords joyning with us for in their Propositions sent to us they have delivered themselves to that purpose This is then a secure way of getting somewhat of great advantage to us as we have great hopes and in a manner assurance on this side So on the other side we have great doubts and fears that by offering our resolution to be enacted we shall loose all For first we have had already experience of the Lords that they are not very foreward to joyn with us in a Declaration of our Proposition to be Law If they stumble at a Declaration much more will they in yielding to make Law in the same point And have we not much more cause to doubt that his Majesty will not yield unto it seeing it toucheth him so near Is it not the notice of his pleasure that hath wrought thus with the Lords If we should clog our Bill with our Proposition and it should be rejected by the Lords or by the King is not our resolution much weakned by it And are we not then in far worse case then before we made it Our resolution for the rejecting of our Proposition will tend to a Justification of all that hath been done against us in this great point of our Liberty Let us then like wise-men conform our desire to our hopes and guide our hopes by probabilities other desires and other hopes are but vain This is my poor opinion in this weighty business Secretary COKES Message 1. May 1628. Mr. Speaker I Have a very short message to deliver from his Majesty that shews both his Royal care to be rightly understood of this House and no less care to understand us in the best part and to shew clearly it shall not be his fault if this be not a happy Parliament His Majesty hath commanded me to desire this House clearly to let him know whether they will rest upon his Royal word and promise made at several times and especially by my Lord Keepers Speech made in his own presence which if they do he doth assure you that it shall be royally and really performed After speaking of himself and the nature of his place under his Majesty he proceeded in these words GIve me leave freely to tell you that I know by experience that by the place I hold under his Majesty if I will discharge the duty of my place and the Oath I have taken to his Majesty I must commit and neither express the cause to the Jaylor nor to the Judges nor to any Councellour in England but to the King himself yet do not think I go without ground of reason or take this power committed to me to be unlimmitted Yea rather it is to me a charge burthen and danger for if I by this power shall commit the poorest porter if I do it not upon a just cause if it may appear the burthen will fall upon me heavier then the Law can inflict for I shall loose my credit with his Majesty and my place And I beseech you consider whether those that have been in the same place have not committed freely and not any doubt made of it nor any complaint made by the Subject Veneris 2. May 1628. A Report was this day made from the grand Committee for grievances concerning the cause of Nicholas Clegat Cittizen and Vintner of London imprisoned by the Lord Major and Aldermen of the said Citie for refusing to lend a certain summe of money assessed upon him by the Company of Vintners of London whereof he is free towards the proportion of money imposed upon the Company by an Act of Common-Councel of the said Citie in pursuance of a contract of Land with his Majesty By which report it appeared that the said grand Committee had unanimously agreed that the said Citie might make Acts of Councel so as they were consonant to Law and reason and for regulating and deciphering of trade agreeable to reason and the Law of the Realm and might leavy money of the Cittizens by Act of Common-Councel for building or repairing of their Walls Gates or making or cleansing of Sewers or other like causes tending to the general and publick good and welfare of the Citie or towards Triumphs or other like occasions tending to the Honour of the Citie in general but could not by such Act of Common-Councel tax or leavy money towards the purchasing of Lands or other like occasions forreign to the government of the Citie Whereupon it is resolved by the House of Commons super totam materiam that the said Commitment of the said Nicholas Clegat was unlawfull and that a Petition should go from the House to his Majesty for the inlargement of the said Nicholas Clegat his commitment by the Lord Major and Aldermen being since strengthned by special command Henry TOMPSON one of the Shrieffs and Robert HENISVVORTH Alderman of the Citie of YORK their submission for their indirect chusing of S r. Thomas SAVIL Knight I Henry Tompson one of the Shrieffs of the Citie of York do hereby acknowledge to have offended the Lord Major and all the Cominalty