Journal of the House of Lords: Volume 3, 1620-1628. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Veneris, videlicet, 23 Maii,
Earl of Dorsett's Privilege. Culpeper's Arrest.
HIS Majesty's Writ of Habeas Corpus cum Causa, etc. is awarded, to bring Culpeper, Servant to the Earl of Dorsett, before the Lords, immediately; the which Culpeper is now arrested, and Prisoner in The Gatehouse.
Nicholls versus Ipsley.
The Earl of Warwicke reported the Petition of Archibald Nicholls, against Sir John Ipsley, etc. and what Order the Lords Committees for Petitions had conceived thereon; which was much debated, but nothing concluded on at this Time.
Message from H. C. for Conference touching the Petition of Right.
The House was adjourned during Pleasure, and their Lordships went to the Conserence. Being returned, and the House resumed; the Lord Keeper moved their Lordships, That a full House would appear in the Afternoon.
Message to the Commons, to sit P. M.
Epus. Co. et Lich.
Epus. Bath. et W.
Ds. Coventrey, Ds. Custos Magni Sigilli.
Comes Marleborough, Magnus Thesaur. Angliæ.
Comes Maunchester, Præs. Concilii Domini Regis.
Dux Buckingham, Magnus Admirallus Angliæ.
Comes Lindsey, Magnus Camerar. Angliæ.
Comes Arundell et Surr. (fn. 1) Comes Marescallus Angliæ.
Comes Pembroc, Senesc. Hospitii.
Comes Mountgomerey, Camer. Hospitii.
Vicecomes Say et Seale.
Ds. (fn. 2) Windsore.
Ds. St. John de Bas.
Ds. Stanhope de H.
Ds. Stanhope de Sh.
Lobby, etc. to be kept clear.
Lord Keeper's Report of the Conference concerning the Petition of Right. Mr. Glanvill's Argument.
"My Lords (said Mr. Glanvill), I have in Charge from the Commons House of Parliament (whereof I am a Member), to express this Day before your Lordships some Part of their clear Sense touching one Point that hath occurred in the great Debate, which hath so long depended in both Houses.
"I shall not need many Words to induce or state the Question, which I am to handle in this Frce Conference: The Subject-matter of our Meeting is well known unto your Lordships. I will therefore only look so far back upon it, and so far recollect summarily the Proceedings it hath had, as may be requisite to present clearly unto your Lordships Considerations the Nature and Consequence of that Particular, wherein I must insist.
"Your Lordships may be pleased to remember how that the Commons, in this Parliament, have framed a Petition to be presented unto His Majesty; a Petition of Right, rightly composed, relating nothing but Truth, desiring nothing but Justice; a Petition justly occasioned; a Petition necessary and sit for there Times; a Petition founded upon solid and substantial Grounds, the Laws and Statutes of this Realm, sure Rocks to build upon; a Petition bounded with due Limits, and directed upon right Ends, to vindicate some lawful and just Liberties of the Free Subjects of this Kingdom from the Prejudice of Violations past, and to secure them against future Invasions.
"And, because my following Discourse must reflect chiefly, if not wholly, upon the Matter of this Petition. I shall here crave Leave shortly to open to your Lordships the distinct Parts whereof it doth consist; and those are Four:
"The First concerneth Levies of Money, by Way of Loan, or otherwise, for His Majesty's Supply; declaring that no Man ought, and praying that no Man hereafter be compelled, to make or yield any Gift, Loan, Benevolence, Tax, or such like Charge, without Common Consent by Act of Parliament.
"The Second is, concerning that Liberty of Person, which rightfully belongeth to the Free Subjects of this Realm; expressing it to be against the Tenor of the Laws and Statutes of this Land, that any Freeman should be imprisoned without Cause shewed; and then reciting how this Liberty, amongst others, hath lately been infringed, it concludeth with a just and necessary Desire for the better clearing and allowing of this Privilege for the future.
"The Fourth and last aimeth at Redress touching Commissions to proceed to the Trial and Condemnation of Offenders, and causing them to be executed, and put to Death, by the Law Martial, in Times and Places, when, and where, if by the Laws and Statutes of the Land they had deserved Death, by the same Laws and Statutes also they might, and by none other, ought to have been adjudged and executed.
"This Petition the careful House of Commons, not willing to omit any Thing pertaining to their Duties, or that might advantage their moderate and just Ends, did heretofore offer up to your Lordships Consideration, accompanied with an humble Desire that, in your Nobleness and Justice, you would be pleased to join with them in presenting it unto His Majesty; that so, coming from the whole Body of the Realm, the Peers and People, to Him that is the Head to both, our Gracious Sovereign, who must crown the Work, or all our Labour is in vain, it might, by your Lordships Concurrence and Assistance, find the more easy Passage, and obtain the better Answer.
"Your Lordships (as your Manner is in Cases of so great Importance) were pleased to debate and weigh it well; and thereupon you propounded to us some few Amendments (as you termed them), by Way of Alteration; alledging, that they were only in Matters of Form, and not of Substance; and that they were intended to none other End, but to sweeten the Petition, and make it the more passable with His Majesty.
"In this the House of Commons cannot but observe that fair and good Respect which your Lordships have used in your Proceedings with them, by your concluding or voting nothing in your House until you had imparted it to them, whereby our Meetings about this Business have been justly stiled Free Conferences either Party repairing hither disengaged to hear and weigh the other's Reasons, and both Houses coming with a full Intention, upon due Consideration of all that can be said on either Side, to join at last in resolving and acting that which shall be found most just and necessary for the Honour and Safety of His Majesty and the whole Kingdom.
"And touching these propounded Alterations, which were not very many, your Lordships cannot but remember that the House of Commons have yielded to an Accommodation, or Change of their Petition, in Two Particulars; whereby they hope your Lordships have observed, as well you may, they have not been affected to Words or Phrases, nor overmuch abounding in their own Sense, but rather willing to comply with your Lordships in all indifferent Things.
"For the rest of your proposed Amendments, if we do not misconceive your Lordships (as we are confident we do not), your Lordships of yourselves have been pleased to relinquish them, with a new Overture, for One only Clause to be added in the End or Foot of the Petition, whereby the Work at this Day is reduced to One single Head, whether that Clause shall be received or not.
"This yielding of the Commons in Part unto your Lordships, and this Relinquishment by your Lordships of other Points, by you some while insisted on, giveth us great Assurance that our Ends are one, and putteth us in good Hope, that in Conclusion we shall concur and proceed unanimously to seek the same Ends by the same Means.
Amendment proposed by the Lords to the Petition.
["We humbly present this Petition to Your Majesty, not only with a Care for Preservation of our Liberties, but with a due Regard to leave entire that Sovereign Power wherewith Your Majesty is trusted, for the Protection, Safety, and Happiness of Your People."]
"A Clause specious in Shew, and smooth in Words, but in Effect and Consequence most dangerous, as I hope to make most evident. However, coming from your Lordships, the House of Commons took it into their Considerations; and apprehending, upon the First Debate, that it threatened Ruin to the whole Petition, they did heretofore deliver some Reasons to your Lordships, for which they then desired to be spared from admitting it.
"To those Reasons your Lordships offered some Answers at the last Meeting; which having been faithfully reported to our House, and there debated, as was requisite for a Business of such Weight and Importance, I must say truly to your Lordships, yet with due Reverence to your Opinions, the Commons are not satisfied with your Arguments; and therefore they have commanded me to recollect your Lordships Reasons for this Clause, and, in a fair Reply, to let you see the Causes why they differ from you in Opinion.
"But, before I come to handle the Particulars wherein we dissent from your Lordships, I will, in the First Place, take Notice yet a little further of that general wherein we all concur; which is, We desire not, neither do your Lordships, to augment or dilate the Liberties and Privileges of the Subjects beyond the just and true Bounds, nor to incroach upon the Limits of His Majesty's Prerogative Royal; and as in this your Lordships, at the last Meeting, expressed clearly your own Sense, so were you not mistaken in collecting the concurrent Sense and Meaning of the House of Commons. They often have protested, they do, and ever must protest, that these have been, and ever shall be, the Bounds of their Desires, to demand or seek nothing, but that which may be fit for dutiful and loyal Subjects to ask, and for a gracious and good King to grant; for, as they claim by Law some Liberties for themselves, so do they acknowledge a Prerogative, a high and just Prerogative, belonging to the King, which they intend not to diminish.
"And now, my Lords, being assured, not by strained Inferences, or obscure Collections, but by the express and clear Declarations of both Houses, that our Ends are the same, it were a miserable Unhappiness if we should fail of finding out the Means to accomplish our Desires.
"3. That the Sovereign Power, mentioned in this Clause, is not absolute or indefinite, but limited and regulated by the Particle ["that"], and the Words subsequent; which restrain it to be applied only for the Protection, Safety, and Happiness of the People, whereby you inferred there could be no Danger in the Allowance of such a Power.
"4. That this Clause contained no more in Substance but the like Expression of our Meanings in this Petition, which we had formerly signified unto His Majesty, by the Mouth of our Speaker, That we no way intended to incroach upon His Majesty's Sovereign Power.
"5. That, in our Petition, we have used other Words, and of larger Extent, touching our Liberties, than are contained in the Statutes whereon it is grounded; in respect of which Enlargement, it was fit to have some express or implied Saving, or Narrative Declaratory, for the King's Sovereign Power, of which Nature you alledged this Clause to be.
"6. And lastly, whereas the Commons, as a main Argument against this Clause, had much insisted upon this, that it was unprecedented, and unparliamentary, in a Petition of Right from the Subjects, to insert a Saving for the Crown, your Lordships brought for Instances to the contrary the Two Statutes, of 25 E. I, commonly called Confirmatio Chartarum; and 28 E. I, known by the Name of Articuli super Chartas; in both which Statutes there are Savings for the King.
"Having thus reduced to your Lordships Memories the Effect of your own Reasons, I will now, with your Lordships Favour, come to the Points of our Reply; wherein I most humbly beseech your Lordships to weigh the Reasons, which I shall present, not as the Sense of myself, the weakest Member of our House, but as the genuine and true Sense of the whole House of Commons, conceived in a Business there debated with the greatest Gravity and Solemnity, with the greatest Concurrence of Opinions and Unanimity, that ever was in any Business mutually agitated in that House.
"I shall not, peradventure, follow the Method of your Lordships recollected Reasons in my answering to them, nor labour to urge many Reasons: It is the Desire of the Commons, that the Weight of the Arguments should recompence (if Need be) the Smallness of their Number; and, in Conclusion, when you have heard me through, I hope your Lordships shall be enabled to collect clearly, out of the whole Frame of what I shall deliver, that, in some Part or other of my Discourse, there is a full and Satisfactory Answer given to every particular Reason or Objection of your Lordships.
"The Clause now under Question, if it be added to the Petition, then either it must refer or relate to it, or else not; if it have no such Reference, (fn. 3) it is most clear that it is needless and superfluous; and if it have such Reference, it is most clear that then it must have an Operation upon the whole Petition, and upon all the Parts of it.
"We cannot think that your Lordships would offer us a vain Thing; and, therefore, taking it for granted, that, if it be added, it will refer to the Petition, let me beseech your Lordships to observe with me, and with the House of Commons, what Alteration and Qualification of the Sense it will introduce.
"The Petition, simply of itself, and without this Clause, declareth absolutely the Rights and Privileges of the Subjects in divers Points, and, amongst the rest, touching the Levies of Money, by Way of Loan, and otherwise, for His Majesty's Supply; that such Loans, and other Charges of like Nature, by the Laws and Statutes of this Land, ought not to be made or laid without common Consent, by Act of Parliament. But admit this Clause to be annexed with Reference to the Petition, and it must necessarily conclude, and have this Exposition, that Loans and the like Charges (true it is) ordinarily are against the Laws and Statutes of the Realm, unless they be warranted by Sovereign Power; and that they cannot be commanded or raised without Assent of Parliament, unless it be by Sovereign Power. What were this but to admit a Sovereign Power in the King above the Laws and Statutes of the Kingdom?
"Another Part of this Petition is, That the Free Subjects of this Realm ought not by Law to be imprisoned, without Cause shewed; but, by this Clause of Sovereign Power, will be admitted, and left entire to His Majesty, sufficient to controul the Force of Law, and to bring in this new and dangerous Interpretation, That the Free Subjects of the Realm ought not by Law to be imprisoned without Cause shewed, unless it be by Sovereign Power.
"In a Word, this Clause, if it should be admitted, would take away the Effect of every Part of the Petition, and become destructive to the Whole; for this will be the Exposition touching the billeting of Soldiers and Mariners in Freemens Houses, against their Wills.
"The Scope of this Petition, as I have before observed, is not to amend our Case, but to restore us to the same State we were in before; whereas, if this Clause be received, instead of mending the Condition of the poor Subjects (whose Liberties of late have been miserably violated by some Ministers), we shall leave them worse than we found them; instead of curing their Wounds, we shall make them deeper: We have set Bounds to our Desires in this Parliament, whereof one is, not to diminish the just Prerogative of the King, by mounting too high; and, if we bound ourselves on the other Side with this Limit, not to abridge the lawful Privileges of the Subject, by descending beneath that which is meet, no Man, we hope, can blame us.
"My Lords, as there is Mention made in your additional Clause of Sovereign Power, so is there likewise of a Trust reposed in His Majesty touching the Use of Sovereign Power. The Word ["Trust"] is of great Latitude, and large Extent, and therefore need be well and warily applied and restrained, especialiy in the Case of a King. There is a Trust inseparably reposed in the Persons of the Kings of England, but that Trust is regulated by Law; as, for Example, when Statutes are made to prohibit Things not mala in se, but only mala prohibita, under certain Forfeitures or Penalties, to accrue to the King, and to the Informers that shall sue for the Breach of them; the Commons must and ever will acknowledge a Regal and Sovereign Prerogative in the King, touching such Statutes, that it is in His Majesty's absolute and undoubted Power to grant Dispensations to particular Persons, with Clauses of non obstante, to do as they might have done before the Statutes; wherein His Majesty, conferring Grace and Favour upon some, doth not do Wrong to others. But here is the Difference between those Statutes, and the Laws and Statutes whereon this Petition is grounded: By those Statutes, the Subjects have no Interest in the Penalties; which are all the Fruits such Statutes can produce, until, by Suit or Information commenced, he become intitled to the particular Forfeiture; whereas the Laws and Statutes commenced in our Petition are of another Nature. There shall your Lordships find us to rely upon the good old Statute called Magna Charta, which declareth and consirmeth the ancient Common Laws of the Liberties of England. There shall your Lordships find us also to insist upon divers other most material Statutes, made in the Times of King E. I, and King E. III, and other Famous Kings, for the Explication and Ratification of the lawful Rights and Privileges belonging to the Subjects of this Realm; Laws not inflicting Mulcts or Penalties upon Offenders in malis prohibitis, but Laws declarative and positive, confirming or conferring, ipso facto, an inherent Right and Interest of Liberty and Freedom in the Subjects of this Realm, as their Birth-right and Inheritance, descendable to their Heirs and Posterity; Statutes incorporate into the Body of the Common Law, over which (with Reverence be it spoken) there is no Trust reposed in the King's Sovereign Power, or Prerogative Royal, to enable Him to dispense with them, or to take from His Subjects that Birth-right and Inheritance which they have in their Liberties, by virtue of the Common Law and of these Statutes.
"But, if this Clause be added to our Petition, we shall then make a dangerous Overture to confound this good Distinction, touching what Statutes the King is trusted to controul by Dispensations, and what not; and shall give an Intimation to Posterity, as if it were the Opinion both of the Lords and Commons in this Parliament, that there is a Trust reposed in the King to lay aside, by His Sovereign Power, in some emergent Cases, as well the Common Law, and such Statutes as declare or ratify the Subjects Liberty, or confer Interest upon their Persons, as those other Penal Statutes of such Nature as I have made Mention of before; which as we can by no Means admit, so we believe assuredly that it is far from the Desire of our most Gracious Sovereign to affect so vast a Trust, which, being transmitted to a Successor of different Temper, might enable Him to alter the whole Frame and Fabrick of the Commonwealth, and so dissolve that Government whereby this Kingdom hath slourished for so many Years and Ages, under His Majesty's most Royal Ancestors and Predecessors.
"Our next Reason is, That we hold it contrary to all Course of Parliament, and absolutely repugnant to the very Nature of a Petition of Right, consisting of Particulars, as ours doth, to clog it with a General Saving, or Declaration, to the weakening of the Right demanded: And we are to renew with some Considence our former Allegation, that there can no Precedent be shewn of any such Clause, in any such Petition, in Times past.
"I shall insist the longer upon this Particular, and labour the more carefully to clear it, because your Lordships the last Day were pleased to urge against us the Statutes of 25 and 28 E. I, as Arguments to prove the contrary, and seemed not to be satisfied with that which in this Point we had affirmed.
"True it is, that in those Statutes there are such Savings as your Lordships have observed; but I shall offer you a clear Answer to them, and to all other Savings of like Nature that can be found in any Statutes whatsoever; First in the general, and then I shall apply particular Answers to the Particulars of those Two Statutes, whereby it will be most evident that those Examples can no way suit with the Question now in Hand.
"To this End, it will be necessary that we consider duly what that Question is, which indeed concerneth a Petition, and not an Act of Parliament. This being well observed; by shewing then to your Lordships the Difference between a Petition for a Law, and a Law ordained upon such a Petition, and by opening truly and perspicuously the Course that was holden in framing of Statutes before 2 H. V, different from that which ever since then hath been used, and is still in Use amongst us, and by noting the Times wherein those Statutes were made, which was about One Hundred Years before 2 H. V, besides the Differences between those Savings and this Clause, I doubt not but that I shall give ample Satisfaction to your Lordships, that the Commons, as well in this as in all their other Reasons, have been most careful to rely upon nothing but that which is most true and pertinent.
"Before the Second Year of King Henry V, the Course was thus: When the Commons were Suitors for a Law, either the Speaker of their House by Word of Mouth from them, the Lords House joining with them, or by some Bill in Writing, which usually was called their Petition, moved the King to ordain Laws for the Redress of such Mischiefs or Inconveniences as were found grievous to the People.
"Upon these Motions or Petitions, and the King's Answer to them, was the Law drawn up, and ingrossed into the Statute Roll, to bind the Kingdom; but this Inconvenience was found in this Course, that oftentimes the Statutes thus framed were against the Sense and Meaning of the Commons, at whose Desires they were ordained. And therefore, 2 H. V, finding that it tended to the Violation of their Liberty and Freedom, whose Right it was, and ever had been, that no Law should be made without their Assent, they then exhibited a Petition to the King, declaring their Right in this Particular, and praying that from thenceforth no Law might be made, or ingrossed as a Statute, by Additions or Diminutions to their Motions or Petitions, that should change the Sense or Intent, without their Assent; which was accordingly established by Act of Parliament.
"From this Course, and from the Time when First it became constant and settled, we conclude strongly, that it is no good Argument, because you find Savings in Acts of Parliament before 2 H. V, that therefore those Savings were in the Petitions that begot those Statutes; for, if the Petitions for the Two Laws so much insisted upon (which Petitions, for any Thing we know, are not now extant) were never so absolute, yet might the King, according to the Usage of those Times, insert the Savings in His Answers, which, passing from thence into the Statute Roll, do only give some little Colour, but are no Proof at all, that the Petitions were with Savings.
"Thus much for the General. To come now to the Particular of 25 E. I, which was a Confirmation of Magna Charta, with some Provision for the better Execution of it as Common Law, which Words are worth the noting.
"It is true, that that Statute hath also a Clause to this Effect: That the King or His Heirs, from thenccforth, should take no Aids, Taxes, or Prises of His Subjects, but by common Assent of all the Realm, saving the ancient Aids and Prises due and accustored.
"This Saving, if it were granted, which in (fn. 4) not, cannot be proved that it was, as well in the Petition as in the Act, yet can it no way imply that it is either fit or safe, that the Clause now in Question should be added to our Petition; for the Nature and Office of a Saving, or Exception, is to exempt Particulars out of a General, and to ratisy the Rule in Things not exempted, but in no Sort to weaken or destroy the general Rule itself. The Body of that Law was against all Aids, Taxes, and Prises in general, and was a Confirmation of the Common Law formerly declared by Magna Charte. The Saving was only of Aids and Prises in particular, so well described and restrained by the Words ["ancient and accustomed"], that there could be (fn. 5) no Doubt what was the clear Meaning and Intent of that Exception; for the King's Right to those ancient Aids, intended by that Statute to be saved to Him, was well known in those Days, and is not yet forgotten. Those Aids were Three, due from the King's Tenants by Knights Service, by the Common Law, or General Custom of the Realm: Aid to ransom the King's Royal Person, if unhappily He should be taken Prisoner in the Wars; Aid to make the King's Eldest Son a Knight; and Aid to marry the King's Eldest Daughter once, but no more. And that these were the only Aids intended to be saved to the Crown by that Statute, appeareth in some Clearness by the Charter of King John, dated at Rumnemeade, the Fifteenth of June, in the Seventeenth Year of His Reign, wherein they are enumerated, with an Examination of all other Aids whatsoever.
Chart. 17 Jehan.
"Nullum Scutagium, vel Auxilium, ponatur in Regno Nostro nisi per Commune Concilium Regni Nostri, nisi ad Corpus Nostrum redimendum, et Primogenitum Filium Nostrum Militem faciendum, et ad Filiam Nostram Primogenitam semcl maritandam; et ad hoc (fn. 5) non fiat nisi rationabile Auxilium.
"Touching Prises, the other Thing excepted by this Statute, it is also of a particular Right of the Crown, so well known that it needeth no Description, the King being in Possession of it by every Day's Usage: It is to take One Tun of Wine before the Mast, and another behind the Mast, of every Ship bringing in above Twenty Tons of Wine, and here discharging of them by Way of Merchandize.
"But our Petition consisteth altogether of Particulars, to which if any general Saving, or Words amounting to one, should be annexed, it cannot work to confirm Things not excepted, which are none, but confound Things concluded, which are all the Parts of the Petition; and it must needs beget this dangerous Exposition, that the Rights and Liberties of the Subject, declared and demanded by this Petition, are not theirs absolutely, but sub mode; not to continue always, but only to take Place when the King is pleased not to exercise that Sovereign Power wherewith this Clause admitteth He is trusted, for the Protection, Safety, and Happiness of His People; and thus that Birth-right and Inheritance, which we have in our Liberties, shall, by our own Assents, be turned into a mere Tenancy at Will and Sufferance.
"Touching the Statute of 28 E. I, Articuli super Chartas, the Scope of that Statute, amongst other Things, being to provide for the better observing and maintaining of Magna Charta, hath in it nevertheless Two Savings for the King; the One particular, as I take it, to preserve the ancient Prises due and accustomed, as of Wines and other Goods; the Other general, for the Right and Seigniory of the Crown in all Things.
"The First of these Two Savings is of the same Prisage of Wines, which is excepted 25 E. I, but in some more Clearness; for that here the Word ["Wines"] is expressly annexed to the Word ["Prises"], which I take for so much to be an Exposition of the former Law; and albeit these Words ["and other Goods"] be added, yet do I take it still to be but a particular Saving, or Exception, which being qualified with the Words ["ancient, due, and accustomed"] is not very dangerous, nor can be understood of Prises or Levies upon Goods of all Sorts at the King's Will and Pleasure, but only of the old and certain Customs upon Wool, Woolfells; and Leather, which were due to the Crown long before the making of this Statute.
"For the latter of the Two Savings in this Act, which is of the more unusual Nature, and subject to the more Exception, it is indeed general; and, if we may believe the concurrent Relations of the Histories of those Times, as well those that are now printed as those that remain only in Manuscripts, it gave Distaste from the Beginning, and wrought no good Effects, but produced such Distempers and Troubles in the State, as we wish may be buried in perpetual Oblivion, and that the like Savings in these or future Times may never breed the like Disturbances; for from hence arose a Jealousy, that Magna Charta, which declared the ancient Right of the Subject, and was an absolute Law of itself, being now confirmed by a latter Act, with this Addition of a general Saving for the King's Right in all Things, this Saving had weakened Magna Charta, and made that doubtful which was clear before: But, not to depart from our main Ground, which is, that Savings in old Acts of Parliament, before 2 H. V, are no Proof that there were the like Savings in the Petitions of those Acts; let me observe unto your Lordships, and so leave this Point, That, albeit the Petition wherein this Act of 28 E. I, was grounded be perished, yet hath it pleased God, that the very Frame and Context of the Act itself, as it is drawn up and entered upon the Statute Roll, and printed in our Books, doth manifestly import, that this Saving came in by the King's Answer, and was not in the original Petition of the Lords or Commons; for it cometh at the End of the Acts, after the Words ["Voet le Roy"], which commonly are the Words of the Royal Assent to an Act of Parliament; and though they be mingled and followed with other Words, as if the King's Counsel, and the rest who were present at the making of this Ordinance, did intend the same Saving, yet is not that conclusive, so long as, by the Form of those Times, the King's Answer, working upon the Materials of the Petition, might be conceived by some to make the Law effectual, though varying from the precise Frame of the Petition.
"The next Reason which the Commons have commanded me to use, for which they still desire to be spared from adding this Clause to their Petition, is thus: This offensive Law of 28 E. I, which confirmed Magna Charta with a Saving, rested not long in Peace, for it gave not that Satisfaction to the Lords or People as was requisite they should have in a Case so nearly concerning them; and therefore, about the 33d or 34th Year of the same King's Reign, a later Act of parliament was made, whereby it was Enacted, That all Laws, Liberties, and free Customs, are granted as largely and wholly as they had used to have them at any Time when they had them best; and, if any Statutes had been made, or any Customs brought in, to the contrary, that all such Statutes and Customs should be void.
"This was the First Law which I call now to Mind that restored Magna Charta to the original Purity wherein it was first moulded, albeit since then it hath been confirmed above Twenty Times more, by several Acts of Parliament, in the Reigns of divers most Just and Gracious Kings, who were most apprehensive of their Rights, and jealous of their Honours, and always without Savings; so as if between 28 and 34 E. I, Magna Charta stood blemished with any Saving of the King's Right or Seigniory, which might be conceived to be above the Law, that Stain and Blemish was long since taken away and cleared, by those many absolute Declarations and Confirmations of that excellent Law, which followed in After-ages; and so it standeth at this Day purged and exempted now from any such Saving whatsoever.
"Do we offer it when Magna Charta stands clogged with a Saving? No, my Lords; but at this Day, when latter and better Confirmations have vindicated and set free that Law from all Exceptions: And shall we now annex another and worse Saving to it, by an unnecessary Clause in that Petition, which we expect should have the Fruits and Effects of a Law? Shall we ourselves relinquish or adulterate that which cost our Ancestors so much Care and Labour to purchase and refine? No, my Lords; but, as we would hold ourselves unhappy if we should not now amend the wretched Estate of the poor Subject, so let us hold it a Wickedness to impair it.
"Whereas it was further urged by your Lordships, that to insert this Clause into our Petition would be no more but to do that again at your Lordships Motion or Request, which we had formerly done by the Mouth of our Speaker, and that there is no Cause why we should recede from that which we have so solemnly professed; to this I answer and confess, it was then in our Hearts, and so it is now, and shall be ever, not to incroach upon His Majesty's Sovereign Power; but I beseech your Lordships to observe the different Occasion and Reference of that Protestation and of this Clause: That was a general Answer to a general Message, which we received from His Majesty, warning us not to incroach upon His Prerogative; to which, like dutiful and loving Subjects, we answered at full, according to the Integrity of our own Hearts; nor was there any Danger in making such an Answer to such a Message, nor could we answer more truely nor more properly. Did that Answer extend to acknowledge or seem to admit a Sovereign Power in the King, above the Laws and Statutes mentioned in our Petition, or to controll the Liberties of the Subject therein declared and demanded? No, my Lords; it had no Reference to any such Particulars.
"I have formerly opened my Reasons, proving the Danger of this Clause; and am commanded to illustrate the Impertinency of adding it to the Petition by a familiar Case, which was put in our House by a Learned Gentleman of my own Robe.
"The Case was thus: Two Manors, or Lordships, lie adjoining together, and perchance intermixed, so as there is some Difficulty to discern the true Bounds of either, as there may be touching the Confines where the Liberty of the Subject and the Prerogative of the Crown do border each upon other. To the One of these Manors the King hath a clear Right, and is in actual Possession of it, but the Other is the Subject's. The King, being misinformed, that the Subject hath intruded upon His Majesty's Manor, asketh His Subject whether he have entered upon His Majesty's Manor, or do pretend any Title to it, or any Part of it. The Subject, being very justly occasioned, maketh Answer truely to the King, That he hath not intruded, nor will intrude, upon His Majesty's Manor, nor doth make any Claim or Title to any Part of it. This Answer is proper and fair; nay, it were unmannerly and ill done of the Subject not so to answer upon this Occasion. Afterwards the King, upon Colour of some double or single Matter of Record, seizeth into His Highness's Hands the Subject's Manor, upon a pretended Title. The Subject then exhibiteth his Petition of Right, or Mrus de Droit, to His Majesty, to obtain Restitution of his own Manor, and therein layeth down his Title to that Manor only. Were it not improper and absurd for him, in this Case, to tell the King, that he did not intend to make any Claim or Title to His Majesty's Manor, which is not in Question? Doubtless it were. This Case, rightly applied, will fit our Purpose well, and notably explain the Nature of our Petition.
"Why should we speak of leaving entire the King's Sovereign Power; whereon we incroach not, while we only seek to recover our own Liberties, and Privileges, which have been seized upon by some of the King's Ministers? If our Petition did trench actually upon His Majesty's Prerogative, would our saying, "We intended not" make the Thing otherwise than the Truth? My Lords, there needeth no Protestation, or Declaration, to the contrary of that which we have not done; and to put in such a Clause cannot argue less than a Fear in us, as if we had invaded that which we hold Sacred, and are assured that we have not touched, either in our Words or in our Intentions.
"And touching your Lordships Observation upon the Word ["Leave"], if it be not a proper Word to give any new Thing to the King, sure we are, it is a Word as dangerous in another Sense; for it may amount, without all Question, to acknowledge an old Right of Sovereign Power in His Majesty above those Laws and Statutes whereon our Liberties are founded; a Doctrine which we most humbly crave your Lordships Leaves freely to protest against.
"And touching your Lordships pressing, that some Saving should be requisite for Preservation of His Majesty's Sovereign Power, in respect that our Petition runneth in larger Words than the Laws and Statutes whereon we ground it; what is this but a clear Confession by your Lordships, that this Clause was intended by your Lordships to be that Saving? for other Saving than this we find none tendered by you; and if it be a Saving, how can it stand with your Lordships other Argument, that it should be of none other Effect than our former Expression to His Majesty by the Mouth of our Speaker? But I will not insist upon Collections of this Kind. I will only shew you the Reason of the Commons why this Petition needeth no such Saving, albeit the Words of those Statutes be exceeded in the declaratory Parts of our Petition. Those Things which are within the Equity and true Meaning of a Statute, are as good Law as those which are contained in the express Letter; and therefore the Statute of 42 E. III, Cap. 3, Rot. Parliament. N. 12, and other the Statutes made in the Time of King E. III, for the Explanation of Magna Charta, which have been so often vouched this Parliament, though they differed in Words from Magna Charta, have no Savings annexed to any of them, because they enacted nothing more than was contained in Effect in that good Law, under the Words per legale Judicium Parium suorum, aut per Legem Terræ, by which these latter Laws are expounded to import, That none shall be put to answer without Presentment, or Matter of Record, or by due Process, and Writ Original; and, if otherwise, that it shall be void, and holden for Error.
"It hath not been yet shewed unto us from your Lordships, that we have, in any of our Expositions or Applications, strained or misapplied any of the Laws or Statutes whereon we do insist; and we are very confident, and well assured, that no such Mistaking can be assigned in any Point of our Petition now under Question. If, therefore, it doth not exceed the true Sense and Construction of Magna Charta, and those subsequent Laws of Explanation whereon it is grounded, what Reason is there to add a Saving to this Petition, more than to those Laws? since we desire to transmit the Fruits of these our Labours to Posterity, not only for the Justification of ourselves, in Care of our present and their future Liberties, but also for a brave Expression and perpetual Testimony of that Grace and Justice which we assure ourselves we shall receive in His Majesty's speedy and clear Answer.
"This is (fn. 6) the Thing we hope for, and this Thing only will settle such an Unity and Considence betwixt His Majesty and us, and raise such a Chearfulness in the dejected Hearts of all His Loving Subjects, as will make us to proceed unanimously, and with all Expedition, to supply Him, and assist Him, for His great Occasions, in such a Measure, and in such a Way, as may make Him safe at Home, and feared Abroad."
L. President's Report of the Conference.
Sir Henry Martin's Argument.
"My Lords, The Work of this Day, wherein the House of Commons hath employed the Gentleman who spake last and myself, is to reply to the Answer, which it had pleased the Lord Keeper to make to those Reasons which the Commons offered to your Lordships Considerations, in Justification of their Refusal, not to admit into their Petition the Addition commended by your Lordships; which Reasons of the Commons, since they have not given such Satisfaction to your Lordships as they desired and well hoped (as by the Lord Keeper's Answer appeared), it is thought fit, for their better Order and Method in replying, to divide the Lord Keeper's Answer into Two Parts; a Legal and a Rational. The Reply to the Legal Part your Lordships have now heard; myself come intrusted to reply to the Rational, which also consisted of Two Branches; the First deducted from the whole Context of the additional Clause; the Second inforced out of some special Words of it.
"1. In the former, are these Reasons: That the same deserved to be accepted of by the Commons; First, because it would afford good Satisfaction to the King; Secondly, to your Lordships; Thirdly, it was agreeable to what the Commons themselves had often protested and expressed by the Mouth of their Speaker.
"To avoid all Misunderstandings and Misconceipt herein, which otherwise might be taken against the House of Commons upon their Refusal of the pro pounded Addition, I will First state the Question, and open the true Point of Difference between your Lordships and us, which indeed is not, as is conceived, touching the Truth of this Addition in the Quality of a Proposition; for, so considered, we, as well and as heartily as your Lordships possibly can, do agree it to be a true Proposition; wherefore give me Leave to rehearse that Oath, which every Member of the House of Commons hath taken this Session, and doth take every Parliament: videlicet,
"I, A. B. do utterly testify, and declare in my Conscience, That the King's Highness is the Supreme Governor of this Realm in all Causes, etc. and to my Power will assist and defend all Jurisdictions, Privileges, Pre-eminences, and Authorities, granted or belonging to the King's Highness, or united and annexed to the Imperial Crown of this Realm.
"So that your Lordships need not to borrow from our Protestations, any Exhortations to us to entertain a Writing in Assistance of the King's Sovereign Power, since we stand obliged, by the most Sacred Bond of a Solemn Oath, to assist and defend the same, if Cause or Occasion be required.
"The only Question and Difference between your Lordships and us is this, Whether this Addition shall be received into our Petition as any Part thereof; which to do, your Lordships Reasons have not persuaded us, because so to admit it were to overthrow the very Fabrick and Substance of our Petition of Right; for these Words being added to our Petition; videlicet, ["We humbly present this Petition to your Majesty, etc. with due Regard to leave entire your Sovereign Power, etc."] do imply manifestly an Exception to our Petition; and an Exception being of the Nature of the Thing whereunto it is an Exception (Exceptio est de Regula), must of Necessity destroy the Petition, so far as to the Case excepted. Exceptio firmat Regulam in Casibus non exceptis; in Casibus exceptis destruit Regulam. Then this Addition being added to our Petition, must produce this Construction: videlicet, ["We pray. That no Freeman be compelled, by Imprisonment, to lend Money to His Majesty, without His Assent in Parliament; nor be imprisoned without a Cause expressed, nor to receive Soldiers into his House against his Will; nor undergo a Commission of Martial Law for Life and Member in Time of Peace, etc. except His Majesty be pleased to require our Monies, and imprison us without Cause shewed, and put Soldiers into our Houses, and execute Martial Law upon us in Time of Peace, by virtue of His Sovereign Power."] By which Construction (necessarily following upon this Addition) our Right in the Premises is annihilated, and the Effect of the Petition frustrated. Neither may it seem strange, that this Addition (which of itself, in Quality of a Proposition, we confess to be most certain and true) should overthrow the very Frame and Fabrick of it, seeing the Logicians take Knowledge of such a Fallacy, called by them, Fallacia a bene divisis, ad male conjuncta.
"The Second Part of my Lord Keeper's Rational Part was inferred out of the last Words of this Addition, by which his Lordship said, that they did not leave entire all Sovereign Power, but that wherewith His Majesty is trusted for the Protection, Safety, and Happiness of His People; as if his Lordship would infer that ["That Sovereign Power wherewith, etc."] in this Place to be Terminum diminuentem, and in that Consideration would induce us to accept it; but, under his Lordship's Correction, we cannot so interpret it; for, First, we are assured that there is no such Distinction of Sovereign Power, as if some Sovereign Power were for the Happiness and Protection of the People, some otherwise; for all Sovereign Power, whether trusted by God or Man, is only ad Salutem et pro Bono Populi Regi commissi. Secondly, in this Place, these Words ["Sovereign Power where with His Majesty is trusted for the Happiness of the People,"] are so far from having the Force of Termini diminuentes, that is, of Words of Qualification or Limitation, that in Truth they are Terms of important Advantage against our Petition, obliging us, whensoever His Majesty's Sovereign Power shall be exercised upon us, in all or any the Particulars mentioned in this Petition, to submit thereunto without further Enquiry, as assuring and taking it pro concesso, that it conduced to our Protection, Safety, and Happiness.
"Having spoken this in Reply to the Rational Part, whereby the Lord Keeper laboured to persuade us to entertain this Addition, the House of Commons, desirous to gain your Lordships absolute Conjunction with them in presenting this Petition unto His Majesty, hath commanded me to deliver these Reasons, or Arguments, also unto your Lordships.
"The First, drawn from the Persons of the Petitioners, the House of Commons, whose moderate and temperate Carriage this Parliament (be it spoken without Vanity, and yet in much Modesty) may seem to deserve your Lordships Assistance in this Petition, ex congruo et condigno, especially if your Lordships would be pleased to consider the Discontents, Pressures, and Grievances, under which themselves in great Number, and the Parts for which they serve, lamentably groaned, when they first arrived here, and which were daily represented unto them, by frequent Packets and Advertisements out of their several Countries; all which, notwithstanding, have not been able to prevail upon our Moderation, or to cause our Passion to overrule our Discretions; and the same yet continueth in our Hearts, in our Hands, and in our Tongues, as appeareth in the Mould of this Petition, wherein we crave no more, but that we may be better entreated hereafter, albeit we are not ignorant in what Language our Predecessors were wont to express themselves upon much lighter Provocation, and in what Style they framed their Petitions. No less Amends could serve their Turns than severe Commissions to enquire upon the Violators of their Liberties, Banishments, Executions upon the Offenders, more Liberties, new Oaths of Magistrates, Judges, and Officers, with many other Provisions written in Blood. From us there hath been heard no angry Word in this Petition; no Man's Person is named; we say no more than what a Worm trodden upon would say (if it could speak), I pray, tread upon me no more.
"The Second Argument to move your Lordships not to urge this Addition to be inserted into our Petition, is taken a Circumstantia Temporis. There is a Time for all Things, saith the Wise Man, Tempus suum. And a Word spoken in due Season is like Apples of Gold in Pictures of Silver; and unseasonably spoken, as ungracious. This Time is not seasonable for the said Addition in the Petition, because Sovereign Power nunc male audit; some late Influences have made the Aspect thereof not to seem so comfortable and gracious as heretofore it hath been, and may by God's Grace hereafter be again. In the mean Time, since angry Men say that Sovereign Power hath been abused, and moderate Men wish it had not been so used, the express Reservation thereof in our Petition, as this Addition would have it, cannot possibly be seasonable.
"The next Argument is a Circumstantia Loci. Of all Places, the Petition is the worst to settle this Addition in, which leaveth Sovereign Power entire. For the Petition being a Thing that concerneth every Man so nearly, it will run through every Man's Hands, and every Man will be reading of it. In perusing whereof, when they shall fall upon this additional Clause of the King's Sovereign Power, presently they will run descant upon these Words, What Sovereign Power is? what is the Nature of it? what the Extent? where the Bounds and Limits? whence the Original? what is the Use? with many such other captious and curious Questions, which will yield no Advantage or Advancement to Sovereign Power; for it was ever held, that Sovereign Power then fareth best, when it is had in an awful and tacit Veneration, not when it is under vulgar Dispute or popular Examination.
"The Fourth and last Argument is, the Loyalty and dutiful Care of the House of Commons, who conceive the Entertainment of this Addition unto their Petition might prove a Differvice to His Majesty (to say no more), and do therefore refuse it.
"It is true, that, joined with your Lordships, we make the Great Council of the King and Kingdom. And, albeit your Lordships may know other Things better than we, yet your Lordships will give us Leave to think and say, That the Estate and Condition of the several Parts for which we serve, their Dispositions and Inclinations, their Apprehensions, their Fears and Jealousies, are best known unto us; the chiefest End and Scope of all our Endeavours this Parliament, is to make up all Rents and Breaches between the King and His Subjects, to draw them and knit them together from that Distance whereof the World Abroad takes too much Notice, to work a perfect Union and Reconciliation between them. To this Purpose, although we right well understood how the Generality of the Kingdom hath been impoverished, and their Substance exhausted with late Loans and Contributions, and other extraordinary Charges; yet we have not forborne to express our Willingness to grant for them Five Entire Subsidies, which is, to take (as it were) Five Ounces of good Blood more from them, thereby to make a real Demonstration to His Majesty of the true Hearts and Zeal of His People to supply and support Him in an ample Measure, even out of their weak Estates and decayed Means, and thence to recover and regain His Majesty's former good Opinion and Affection unto them. On the other Side, we have made Choice of Four Epidemical Diseases, which especially insest and annoy the Body of this Commonwealth, to be presented unto His Majesty in this Petition, the very View and Relation whereof cannot (as we assure ourselves) but make such an Impression upon His Majesty's Royal Heart, as will easily move Compassion, and with Compassion a ready Assent in His Majesty to ease and free His good Subjects from Sense of the present, and Fear of the like Evil hereafter, and consequently beget in the Subjects, so eased and freed, a reciprocal and mutual Proportion of Love and Thankfulness. Now if, instead of such a clear Resolution from His Majesty for their present Relief and future Security, the People shall observe, in the Conclusion of the Petition, such a Reservation of Sovereign Power, as will not only refresh the Memory of forepast Sufferings, but also minister just Suspicion that, in Time to come, when it shall please the King to make Use of His like Sovereign Power, they may undergo the same Calamities again; we appeal to your Lordships Wisdom, whether the Petition be likely to produce the good Ends which we desire and propound unto ourselves. Nay, I will beseech your Lordships to give us Leave to use the Figure called Reticentia; that is, to insinuate and intimate unto your Lordships more Mischiefs and greater Inconveniences that might arise out of the Interpretation of this Addition, than is safe or sit for us to utter.
"Wherefore, since the Admittance of your Lordships Addition into our Petition is incoherent and incompatible with the Body of the same; since there is no necessary Use of it for the saving of the King's Prerogative; since the Moderation of our Petition deserves your Lordships chearful Conjunction with us; since this Addition is unseasonable for the Time, and improper in respect of the Place where your Lordships would have it inserted; and lastly, since it is not agreeable to the Persons of such Counsellors whom we act, nor answerable to that Love and Duty which we owe to His Majesty, to hazard an End of such unspeakable Consequence (as we aim at) upon the Admittance of this Addition into our Petition:
"I conclude with a most hearty and affectionate Prayer unto your Lordships, That your Lordships would be pleased to join with the House of Commons, in presenting their Petition unto His most Sacred Majesty, as it is by them conceived, without this Addition."
The House to treat again with the Commons, concurring the proposed Addition.
These Reports ended; their Lordships considered, that it would spend too much Time to dispute these Reasons objected by the Commons against the Addition propounded. And, for that the Commons said at the Conference (as the Lord President reported), that they would not have disliked such a Proposition as the Addition is, by itself alone, separated from the Petition, and having no Relation thereunto; the House was therefore moved, To treat with them again, to consider of any Way herein, by way of Manifestation, Declaration, or Protestation.
The former Committee for an Accommodation being read, the Earl of Dorsett and the Earl of Norwich were added; and their Lordships agreed to propound to the Commons a Committee of Fourteen, to accommodate this Business.