Historical Collections
1637 (3 of 5)

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History of Parliament Trust

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Author

Rushworth, John

Year published

1721

Pages

461-481

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'Historical Collections: 1637 (3 of 5)', Historical Collections of Private Passages of State: Volume 2: 1629-38 (1721), pp. 461-481. URL: http://www.british-history.ac.uk/report.aspx?compid=74904&strquery=john%2Blilburne Date accessed: 27 November 2014.


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The Bishop of Norwich his Certificate concerning the Book of Sports, &c.

To the 12th Article, that upon Enquiry at my Visitation, whether the Kings Majesties Declaration for Lawful Sports had been Published? I found it had not been done in very many Places of the Diocess; having therefore about 60 Books at hand, I caused them to be proposed to such Persons as I had most doubt of, but many of them refused to publish the same, and were suspended for their refusal; yet divers of them presently promised Conformity, and so were absolved; so that now in the whole Diocess (consisting of about 1500 Clergy-men) there are not passing twice fifteen Excommunicated or Suspended; whereof some so stand for Contumacy, in not appearing at the Visitation and Synod, and still refuse to submit, and others for obstinate denying to Publish the Kings Declaration.

At White-Hall the 11th of February, 1637.

    Present: The King's Most Excellent Majesty,

  • Lord Arch-bishop of Canterbury,
  • Lord Keeper,
  • Lord Treasurer,
  • Lord Privy-Seal,
  • Lord Marquess of Hamilton,
  • Lord Great Chamberlain,
  • Earl Marshal,
  • Lord Chamberlain,
  • Earl of Holland,
  • Lord Cottington,
  • Lord Newburgh,
  • Mr. Treasurer,
  • Mr. Comptroller,
  • Mr. Chamberlain,
  • Mr. Secretary Cook,
  • Mr. Secretary Windebanke.

Touching St. Gregories Church. Feb. 11.

Whereas the Board was now acquainted, that notwithstanding His Majesties Pleasure signified by the Lord Treasurer, and the Lord Cottington, to the Parishioners of St. Gregories, That the Church should be taken down and removed, being a great impediment to Work now in hand, for the perfecting and fully repairing of the Cathedral Church of St. Paul, the said Partshtoners had not as yet done the same, nor taken any order for the doing thereof. It was thereupon resolved and ordered, according to His Majesties express Will and Pleasure, as also now again declared, That the said Church shall be taken down and removed by the last of March next.

And the said Parishioners are hereby straitly required and enjoyned to cause the same to be done and performed accordingly, as they will answer the contrary at their perils; His Majesty expecting a dutiful and effectual account thereof from them by the time before limited.

This Order not being obeyed, produced another Order, following.

The last of February, 1637, this Business came again before the Lords of the Council, which produced this further Order.

Touching St. Gregories Church. Feb. 28.: Order to pull down the Church of St. Gregories.

This day two of the Petty Canons of the Cathedral Church of St. Paul, and the Church-Wardens of the Parish of St. Gregories, did, by command from their Lordships, attend the Board, and were heard concerning the Petition formerly presented in the Name of the said Parishioners, wherein, upon pretence of disability to undergo the Charge thereof, they were humble Suitors, that they might be freed from taking down and removing of the Parish-Church, which by former Orders of the Board they were in His Majesties Name, and according to His express Command, required and directed to do, by the last of March next. Their Lordships finding no cause to vary in any particular from their said former Orders, did now again ratifie and confirm the same, and did require, that as well the Church Wardens now present, as such others of the chief Parishioners, (unto whom the Lord Treasurer, and the Lord Cottington had already signified His Majesties Pleasure on that behalf) should, by the time limited as aforesaid, cause the said Church to be taken down and removed. And concerning the difficulty by them made, of finding out and procuring a fit place for the erecting of a new Church within the said Parish, and their disability for the present to undergo the charge of building the same; the former (as their Lordships did now well remember,) was already recommended to the Lord Treasurer, and the Lord Cottington, unto whose directions therein their Lordships do now again refer them. And for the latter, in case their disability for the present be such, as that they are unable to exact a new Church; their Lordships leave it to their Election, whether they will build the same, or be assigned to any one or more Parishes in such manner as the Lord Bishop of London, Lord Treasurer, shall think fit and direct, and so remain and continue until a new Church shall be by them erected. And do recommend it to his Lordship, to take effectual order upon such Election by them made as aforesaid, for their accommodation therein accordingly.

Feb. 13. Star-Chamber.

Information was preferred in Star-Chamber by the King's Attorney-General, against John Lilburne and John Warton, for the unlawful Printing and Publishing of Libellous and Seditious Books, Entituled News from Ipswich, &c. they were brought up to the Office, and there refused to take an Oath to answer Interrogatories, saying it was the Oath ex Officio, and that no free-born English man ought to take it, not being bound by the Law to accuse himself, (whence ever after he was called Free-born John ) his offence was aggravated, in that he printed these Libellous and Seditious Books, contrary to a Decree in Star-Chamber, prohibiting printing without License: which Decree was made this Year in the Month of July, and was to this effect.

July 1637. A Decree of Star-Chamber against Printing without License.

'That none shall presume to Print any Book or Pamphlet whatsoever, unless the same be first Licensed with all the Titles, Epistles, and Prefaces therewith imprinted, by the Lord Arch-bishop of Canterbury, or the Bishop of London for the time being, or by their appointment; and within the Limits of either University, by the Chancellor or Vice-Chancellor thereof, upon pain that every Printer so offending shall for ever thereafter be disabled to exercise the Art of Printing, and shall suffer such further punishment, as by this Court, or the High-Commission, shall be thought fitting; that before any Books imported from Forreign Parts shall be exposed to sale, a true Catalogue thereof shall be presented to the Arch-bishop of Canterbury, or the Bishop of London : And that no Officers of the Custom shall deliver any Forreign Books out of their Hands and Custody, before those Bishops shall have appointed one of their Chaplains, or some other Learned Man, with the Master and Wardens of the Company of Stationers, or one of them, to be present at the opening of the Pack and Fardels, and to view the same. And those that disobey this Injunction, are to be Censured in this or the High-Commission Court, as the several Causes shall require. And if in this Search there happen to be found any schismatical or offensive Books, they shall be brought to the aforesaid Bishops, or the High-Commission Office, that the Offenders may be punished. That no Person whatsoever shall imprint in the Parts beyond the Sea, or Import from thence, any English Books, or whereof the greater part is English, whether formerly Printed or not. And that no Books whatsoever shall be re-printed, though formerly Licensed, without a new License first obtained, upon pain of like Censure and Punishment. And that if any Person whatsoever that is not an allowed Printer shall presume to set up a Press for Printing, or work at any such Press, or Set and Compose Letters for the same, he shall be set in the Pillory, and whipt through the City of London.

The 13th of February the said Lilburne and Warton were brought to the Bar at the Court of Star-Chamber, and the Court proceeded to Sentence, which you have here in the very words, as they were entred in the Registers Book, written out by Mr. Arthur himself, the Deputy Register, who was an able and friendly Man in his Place.

But before they proceeded to Sentence this ensuing Order was read.

In Camera Stellat' coram Concilio ibidem 9. die Febr. Anno 13 Car' Regis.

John Lilburne and Warton brought to the Bar.

'Upon Information this day to this Honourable Court, by Sir John Banks Knight, His Majesties Attorney-General, That John Lilburne and John Warton, who are now at the Bar of this Court, were the 24th of January last ordered to be examined upon Interrogatories touching their unlawful Printing, publishing, and dispersing of Libellous and Seditious Books, contrary to the Decree of this Court, which was verified by Affidavit; and being brought up to the Office to appear and be examined accordingly, the said Lilburne refused to appear, and both of them denied to take an Oath to make answer to Interrogatories, as appears by Certificate of Mr. Goad : It was humbly pray'd that their Appearance may be Recorded, they being now present in Court, and that they may now have their Oaths tendred unto them; which if they shall refuse to take, that then this Court will proceed to a Censure against them for their high Contempt therein, as hath been used in like Cases; which the Court held fit. And hath therefore ordered, That their Appearance shall be Recorded, as is desired. And for that the said Delinquents do now again most contemptuously refuse to take their Oaths now tendred to them in open Court. Their Lordships have further ordered, That the said Lilburne and Warton shall be remanded to the Prison of the Fleet, there to remain close Prisoners until they conform themselves in obedience to take their Oaths, and be examined; and that unless they do take their Oaths, and yield to be examined by Monday-night next, their Lordships will, on the last sitting of this Term, proceed to Censure against them for their contempts therein, as is desired.

Hereupon the Court proceeded to Sentence.

In Camera Stellata coram Concilio ibidem 13 die Febr' Anno decimo tertio Car' Regis.

The Decree and Sentence in Star-Chamber against Jo. Lilburne, as it is on Record.

'Whereas, upon Information to this Court the ninth of this instant February, by Sir John Banks Knight, His Majesties Attorney-General, That John Lilburne and John Warton (then present at the Bar) were the 24th of January last ordered to be examined upon Interrogatories touching their unlawful printing, importing, publishing, and dispersing of Libellous and Seditious Books, contrary to the Decree of this Court, which was verified by Affidavit; and being brought up to the Office to appear and be examined, the said Lilburne refused to appear, and both of them denied to take an Oath to make some answer to Interrogatories, as appeared by the Certificate of Mr. Goad, Deputy Clark of this Court: The Court did on that day order, That their Appearances should be Recorded, they being present in Court as aforesaid; And that in respect the said Delinquents did then again contemptuously refuse to take their Oaths tendred to them in open Court, they should be remanded to the Prison of the Fleet, there to remain close Prisoners, until they conformed themselves in obedience to take their Oaths, and be examined; and that unless they did take their Oaths, and yield to be examined by Monday-night then next following, and now last past, their Lordships would on this sitting-day proceed to a Censure against them for their contempts therein. Now this day the said Lilburne and Warton being again brought to the Bar, His Majesties said Attorney informed this Honourable Court, that they still continued in their former obstinacy, and contemptuously refused to take their Oaths, to make true answer to the Interrogatories, although they had been sent for, and their Oaths assented to be given unto them by Mr. Goad Deputy-Clark of this Court, who now certified the same in Court: And therefore His Majesties said Attorney humbly pleaded on His Majesties behalf, That their Lordships would now proceed to Censure against the said Delinquents, for their great contempts and disobedience therein. Whereupon their Lordships endeavoured, by fair perswasions, to draw them to conformity and obedience, and withal offered, that if they yet would submit and take their Oaths, their Lordships would accept thereof, and not proceed to Censure against them. But such was the insufferable disobedience and contempt of the said Delinquents, that they still persisted in their former obstinacy, and wilfully refused to take their Oaths. In respect whereof the whole Court did, with an unanimous consent, declare and adjudge the said Lilburne and Warton guilty of a very high contempt and offence of dangerous consequence and evil example, and worthy to undergo very sharp, severe, and exemplary Censure, which might deter others from the like presumptuous boldness in refusing to take a legal Oath; without which many great and exorbitant offences, to the prejudice and danger of His Majesty, His Kingdoms, and Loving Subjects, might go away undiscovered, and unpunished. And therefore their Lordships have now ordered, adjudged and decreed, That the said Lilburne and Warton shall be remanded to the Fleet, there to remain until they conform themselves in obedience to the Orders of this Court, and that they shall pay Five Hundred Pounds a-piece for their several Fines to his Majesties use; and before their enlargements out of the Fleet, become bound with good Sureties for their good behaviour. And to the end that others may be the more deterred from daring to offend in the like kind hereafter, the Court hath further ordered and decreed, That the said John Lilburne shall be whipt through the Streets, from the Prison of the Fleet unto the Pillory, to be erected at such time, and in such (fn. 1) place as this Court shall hold fit and direct; and that both he and the said Warton shall be both of them set in the said Pillory, and from thence be returned to the Fleet, there to remain according to this Decree.

And the following Year in Easter-Term, falling on the 18th of April, was this Sentence executed with the utmostrigour on Lilburne, who was smartly whipt from the Fleet to Westminster.

Whilst he was whipt at the Cart, and stood in the Pillory, he uttered many bold Speeches against the Tyranny of Bishops, &c. and when his Head was in the hole of the Pillory, he scattered sundry Copies of Pamphlets, (said to be seditious) and tossed them among the People, taking them out of his Pocket; whereupon the Court of Star-Chamber (then sitting being informed) immediately ordered Lilburne to be gagged during the residue of the time he was to stand in the Pillory, which was done accordingly; and when he could not speak, he stamped with his Feet, thereby intimating to the Beholders, he would still speak were his Mouth at liberty; and the Court of Star-Chamber that day made also this following Order.

April 8. 1638. John Lilburne uttered scandalous Speeches in the Pillory.

'Whereas John Lilburne, Prisoner in the Fleet, by Sentence in Star-Chamber, did this day suffer condign Punishment for his several offences, by whipping at a Cart, and standing in the Pillory, and (as their Lordships were this day informed) during the time that his Body was under the said Execution, audaciously and wickedly, not only uttered sundry scandalous and seditious Speeches, but likewise scattered sundry Copies of Seditious Books amongst the People that beheld the said Execution, for which very thing, amongst other offences of like nature, he had been Censured in the said Court by the aforesaid Sentence. It was thereupon ordered by their Lordships, That the said Lilburne should be laid alone with Irons on his Hands and Legs in the Wards of the Fleet, where the basest and meanest efort of Prisoners are used to be put, and that the Warden of the Fleet take special care to hinder the resort of any Person whatsoever unto him, and particularly that he be not supplied with any Hand, and that he take special notice of all Letters, Writings, and Books brought unto him, and seize and deliver the same unto their Lordships; And take notice from time to time who they be that resort to the said Prison to visit the said Lilburne, or to speak with him, and inform the Board. And it was lastly ordered, That hereafter all Persons that shall be produced to receive Corporal Punishment according to Sentence of that Court, or by order of the Board, shall have their Garments searched before they be brought forth, and neither Writing nor other thing suffered to be about them, and their Hands likewise to be bound during the time they are under Punishment, whereof (together with the other Premisses) the said Warden of the Fleet is hereby required to take notice, and to have special care, that this their Lordships Order be accordingly observed.

And on the said 18th of April it was further ordered by the said Court of Star-Chamber,

John Lilburne to be examined touching his Speeches in the Pillory, and dispersing Libellous Books.

'That His Majesties Attorney and Sollicitor-General should be hereby prayed and required, to take strict examination of John Lilburne Prisoner in the Fleet, touching the demeanour and Speeches of him the said Lilburne during the time of his whipping and standing in the Pillory this day, according to sentence of His Majesties Court of Star-Chamber, particularly, whether the said Lilburne did at that time utter any Speeches tending to Sedition or to the dishonour of the said Court of Star-Chamber, or any Member of the said Court? and whether he did throw about and disperse at the same time any Seditious Pamphlets and Books, either of that sort for which he was formerly Censured, or any other of like nature? What the Speeches were, and who heard them? what the said Books were, and whence and of whom the said Lilburne had them? and what other material Circumstances they shall think fit to examine, either the said Lilburne upon, or any other Person by whom they shall think good to inform themselves for the better finding out the truth: And thereupon to make Certificate to the Board what they find, together with their opinions.

Lilburne having for some time endured close Imprisonment, lying with double Irons on his Feet and Hands in the Inner-Wards of the Prison, there happened a Fire in the Prison of the Fleet, near to the place where he was a Prisoner, which gave a jealousie that Lilburne, in his fury and anguish of pain, was desperate, and had set the Fleet-Prison on fire, not regarding himself to be burnt with it; whereupon the Inhabitants without the Fleet, (the Street then being not five or six yards over from the Prison-door) and the Prisoners within all cryed, Release Lilburne, or we shall all be burnt; and thereupon they run head-long, and made the Warden remove him out of his Hold, and the Fire was quenched, and he remained a Prisoner in a place where he had some more Air. He continued in Prison till November the third 1640. when the first long Parliament begun, and then he was released.

We beg of the Reader further pardon for a little digression. This very John Lilburne, after he had served the Parliament in the War many years, was imprisoned by them for speaking and publishing things against them, as Usurpers, and Enemies to Magna Charta, &c. which offended those times; whereupon he was banished the Kingdom on pain of death if he did return: but return he did, in defiance of those then in Power, and was thereupon sent to Newgate, and Arraigned at the Sessions-House in the Old-Bayly for his Life, and was there publickly acquitted by a Jury of Life and Death, notwithstanding the Law made to banish him; which for Joy occasioned a great Acclamation of the People then present. He writ many Books against those then in Power and Authority, and some particular Members thereof; insomuch as it was said by Henry Martin in favour of him, That if there were none living but himself, John would be against Lilburne, and Lilburne against John. At last he dyed a Quaker, and was buried in the Church-yard near Bedlam, 4000 Citizens and others accompanying his Corps to the Grave.

Pardon digression a little more to what followeth.

When the Impeachment of the House of Commons on John Lilburne's behalf went up to the House of Peers against those his Judges in Star-Chamber, it was thus urged by those that managed the same.

That Imprisonment is a Man buried alive, is made Corpus immobile Legis, the immoveable Subject of the Law. There is an end when Life is taken away, but in this no end. Nondum tibi cedit in gratiam, to put a Man out of his pain was accounted a Favour by the Romans.

Close Imprisonment was never used to the Primitive Christians by any Tyrant; for then that heavy Charge in Scripture, I was in Prison, and ye visited me not, might be answered; but a Close Imprisonment may presume a Famishment, and so Death. The Romans had four Punishments, Lapidatio, Combustio, Decollatio, and Strangulatio, but never famishing to death. This Man might have been so, as it was sworn.

Three years Imprisonment till the Parliament released him, and might otherwise have been for ever.

Whipping was painful and shameful, Flagellation for Slaves. In the Eleventh of Elizabeth, one Cartwright brought a Slave from Russia, and would scourge him, for which he was questioned; and it was resolved, That England was too pure an Air for Slaves to breath in. And indeed it was often resolved, even in Star-Chamber, That no Gentleman was to be whipt for any offence whatsoever; and his whipping was too severe. The Manager further saith,

That John Lilburne was a Free Citizen of London, descended from an ancient Family in the North, a Town in Northumberland, still bearing the Name of Lilburne, or rather Le-Isle-borne, by reason of the Water (fn. 2) that runs about it. The Arms belonging to the Family are three Water-budgets, an ancient bearing of Arms.

Now as to his whipping, observe the distance, from the Fleet to Westminster is about a Mile, that he had 500 Blows (one swears a great many more) with a terrible Corded-whip with knots upon it.

Among the Romans no Malefactor had above 40 Stripes, and with three Thongs; and St. Paul received but 39 Stripes, which was but 13 Blows. And it is worth the observation, that not long since, at Orleans inFrance, a Priest was sentenced to be whipt for Fornication with a poor Maid, telling her that St. Francis would come and lye with her such a night, at which time he feigned himself to be St. Francis, and was taken in Bed with her. The King's Advocates pressed the Judges, that he might receive 14 Blows with a three Corded-whip; but the Judges would not Sentence him to more than 13 Blows, because Ampliandi sunt favores; but if our Arithmetick be right, (not to sport with his pain) Lilburne had by this Numeration, three times Five Hundred Stripes in 500 Blows. The Manager further urged.

That this Punishment of the Pillory was first invented for Mountebanks and Cheats, that having gotten upon Banks and Fourms to abuse the People, were exalted in the same kind to be set upon the Pillory, an open shame to the Multitude.

Now Gagging is barbarous, and beastly; for Man differs from Beasts both Ratione and Oratione.

So that to sum up his Sufferings, by Imprisonment he was made a dead Trunk; by whipping, a Rogue; by Pillory, a Cheat; and by Gagging, a Beast. They had better have hanged him outright, &c.

Here followeth an Order of the House of Peers made upon John Lilburne's Appeal to them Anno 1640. against his Censure in Star-Chamber, and his Imprisonment, &c. which the Reader is desired to take in good part, although it be a digression in point of time.

John Lilburne.

Whereas the Cause of John Lilburne Gent. came this day to a Hearing at the Bar, by His Councel, being transmitted from the House of Commons, concerning a Sentence pronounced against him in the Star-Chamber, Feb. 17. Anno 13 Car. Regis, and after an Examination of the whole Proceedings, and a due consideration of the said Sentence, it is this day adjudged, ordered, and determined by the Lords in Parliament Assembled, That the said Sentence, and all Proceedings thereupon, shall forthwith be for ever totally vacuated, obliterated, and taken off the file in all Courts where they are yet remaining, as illegal, and most unjust, against the liberty of the Subject, and the Law of Land, and Magna Charta, and unfit to continue upon Record; and that the said Lilburne shall be for ever absolutely freed, and totally discharged from the said Sentence, and all Proceedings thereupon as fully and amply, as though never any such thing had been. And that all Estreats and Process in the Court of Exchequer for levying of any Fine, (if any such be) shall be wholly cancelled and made void, any thing to the contrary in any wise notwithstanding.

John Brown Cler. Parliament.

Mr. Powel's Sermon referred to be examined, and to be certified. March 4.: Passages in a Sermon, that Taxes ought to be paid, be they never so unjust and cruel.

Whereas Richard Powel Clark hath attended this Board in the Custody of a Messenger, at which time the Letter sent by you Sir Richard Samuel was read at the Board, as also the Testimonies returned in this Cause; and upon hearing him, we do find, that perceiving some People in the Parish unsatisfied, by reason of the dislress made for the Ship-money, he took occasion, upon the Text mentioned in the Testament, viz. Give to Caesar the things that be Caesars, and unto God the things which are Gods, to tell them that Subjects ought to pay the Taxes laid on them by their Kings, although they were cruel and unjust, instancing in Saul; and that such Kings were sometimes given to a Nation by God in his wrath, for the Peoples sins; and that if we had such a King, we ought notwithstanding to submit unto him; or words to that effect: but blessed be God he hath given us a Gracious King, such as no Age can parallel, whom God long continue over us; shall not we then be obedient unto him? which words are wholly omitted in all the Testimonies, and do clearly interpret the former Passages, and do justifie him in what he delivered to the People. And the Messenger, who went for the said Powel, doth restifie, that sundry of the Parishioners did bear witness of the adding of these last words, which if it prove true, argues very little sincerity in the accusation, and in the Testimonies. Upon consideration therefore of the Premisses, we have thought fit to intreat you Sir Richard Samuel, and you Mr. Doctor Clark, and Mr. Doctor Sibthorpe, or any two of you, to examine the truth hereof, as well by examination of such Witnesses as you shall think fit, as by the Notes of his Sermon; for which purpose we send you back the said Notes sealed up, together with all the other Papers presented unto us. And do pray and require you to certifie to us, how you find the truth of the Case to stand, together with your Opinions of the same, to the end, that if he have been thus vexed and put to charge with out just cause, we may think how to give him a due reparation of the same, and from whom the same shall come. And so we bid, &c.

March 11.

At this time News came from Scotland, That the King's Proclamation, Dated the 19th of February, published at Striveling, the beginning of March, wherein His Majesty declares, That he ordained the Book of Common-Prayer to be compiled for edification of the King's Subjects in Scotland, and to maintain the true Religion already professed there.

Archibald the King's Fool.

And it so happened that on the 11th of the said March, that Archibald, the King's Fool, said to his Grace the Arch-bishop of Canterbury, as he was going to the Council-Table, Whea's feule now? doth not your Grace bear the News from Striveling about the Liturgy? with other words of reflection; this was presently complained of to the Council, which produced this ensuing Order.

At White-Hall the 11th of March, 1637.

    Present: The King's Most Excellent Majesty,

  • Lord Arch-bishop of Canterbury,
  • Lord Keeper,
  • Lord Treasurer,
  • Lord Privy-Seal,
  • Lord Duke of Lenox,
  • Lord Marquess of Hamilton,
  • Earl Marshal,
  • Lord Chamberlain,
  • Earl of Northumberland,
  • Earl of Dorset,
  • Earl of Salisbury,
  • Earl of Holland,
  • Lord Newburgh
  • Mr. Treasurer,
  • Mr. Comptroller,
  • Mr. Vice Chamberlain,
  • Mr. Secretary Cook,
  • Mr. Secretary Windebanke.

Archibald the King's Fool banished the King's Court.

It is this day ordered by His Majesty, with the Advice of the Board, That Archibald Armestrong, the Kings Fool, for certain scandalous words of a high nature, spoken by him against the Lord Arch-Bishop of Canterbury his Grace, and proved to be uttered by him by two Witnesses, shall have his Coat pulled over his head, and be discharged of the Kings Service, and banished the Court; for which the Lord Chamberlain of the Kings Houshold is prayed and required to give order to be executed. And immediately the same was put in Execution.

Mr. Claypoole to be proceeded against in the Star-Chamber.

Whereas John Claypoole Gent. was sent for by Warrant for his misdemeanours to His Majesties Service in the Collection of the Ship Money : It was this day thought fit and ordered, That Mr. Attorney General shall examine him, and thereupon proceed against him in Star-Chamber, as he shall think best and fittest for His Majesties Service; for which purpose the Informations against the said Claypoole are to be sent herewith to His Majesties said Attorney.

A Discourse concerning the High-Court of Star-Chamber.

Upon occasion of the Exemplary Punishment of Mr. Prynn, about his Histrio-Mastix Anno 1633. and of his losing his Ears the second time Anno 1637. it will not be unseasonable to deliver something of the Nature and Prerogative of that Court which inflicted it, viz. the High Court of Star-Chamber, being an Abstract of a Treatise written by a Person well acquainted with the Proceedings of the same.

There is little mention made of this Court, either in Reports, or Treatises of the Law, except now and then dispersedly in some one or two Causes, in an Age where it is mentioned rather, as it seemeth, to manifest to Posterity that there was such a Court, than to enlighten the World with the lawful Power, Authority, and Jurisdiction thereof.

Only Sir Thomas Smith, in his Common-wealth hath glanced upon it, and Mr. Lambert, the ancient Antiquary, treateth of the Power and Jurisdiction of it; and the reason probably why the Learned of the Laws did, in their Reports, forbear to make mention thereof was, because it intrenched in those days, as of late time, too much upon the Common Law of England; and the abuse in the exercise of the Jurisdiction of the Court, might induce the Sages of the Law to pass it over in silence, as an Usurpation of Monarchy upon the Common Law of England, in the prejudice of the liberty of the Subject, granted by the Great Charter.

And without peradventure, those good Laws made in Edw. the 3d's time, to preserve the Liberty of the Subject, were chiefly grounded upon the unlimited Power which this Court did then take to it self.

The Reason of the name of the Court.

In our Ancient Year-Books it is called Camera Stellata, not because the Chamber where the Court is kept is adorned with Stars, but because it is the Seat of the Great Court, and the Name is given according to the Nature of the Judges thereof; `Denominatio being a proestantiori, and majus dignum trahit ad se minus. And it may be so fitly called, because the Stars (in the common opinion) have no light, but that which is cast upon them from the Sun by reflection, it being a representative Body; and as King James was pleased to say when he sate there in His Royal Person, Representation must needs cease when the Person is present.

So in the presence of His Majesty, which is the Sun of Honour and Glory, the shining of those Stars is put out, not having any power to pronounce any Sentence in this Court, (for the Judgment is the Kings only) but by way of advice to deliver their opinions, which His Wisdom alloweth or disalloweth, increaseth or abateth at His Royal Pleasure; which was performed by King James, even like unto Solomon's Wisdom, in the great Case of the Countess of Exeter against Sir Thomas Lake, wherein His Majesty sate five continued days in a Chair of State, elevated above the Table, about which his Lords sate, and after a long and patient Hearing, and the Opinions particularly of His Great Council, He pronounced a Sentence more Accurately, Eloquently, Judicially, Grave, and Honourably, more Just, to the Satisfaction of all Hearers, and all the Lovers of Justice, than all the Records extant in this Kingdom can declare to have been done by any of His Royal Progenitors.

There is no Man will deny, that in all Monarchies the King is the Fountain of all Justice, to whom is the first Refuge for those that are distressed, and the last to whom Appeals are to be made.

And Bracton, Father of our Laws, (who writ in the Reign of King Henry the 3d ) doth agree it to be the Law of England.

And Britton, (who writ in Edward the first's time) beginneth his Treatise to the purpose, and concludeth writing in the Kings Name: We will that our own Jurisdiction be above all Jurisdictions, in all Cases Real and Personal. Admitting then the King to be Supreme Judge of all, and sitting in His Throne of Majesty with His Wife Men and Sages, distributing Justice in His Royal Person, or by His Council hath found himself and them over-charged, and hath therefore committed His Pleas of the Crown to certain Judges, Matters of Common Right to other Justices, and to others the Affairs of His Revenue; all which, before they were distributed to others, were more properly determinable before Himself and His Council.

This Court not founded in Henry the 7th's time.

And therefore it is plain, that this Court was not founded by Act of Parliament in Hen. the 7th's time. And it was solemnly adjudged by the Chief-Justices of England, Sir Edward Cooke, and the Lord Hobert, attended by the King's Learned Council, in the Case between the Earl of Northumberland, and Sir Stephen Proctor, published in open Court, that the Statute of 3 Hen. 7. extendeth not any way to this Court: But the Lords Authorized by the Act, may at all times in all places determine of the Matters therein specified, 28 Ass. Pag. 52. Coram nobis & Concilio, is resolved to be Coram Rege in Camera, which hath been so often affirmed by the Reverend Judge Sir Edward Cooke.

In the Ancient Laws of England we read of three Councils, Commune Concilium, Magnum Concilium, & Privatum Concilium.

For the first. In all our Writs founded upon any Ancient Statute-Law, the Writ beginneth, Cum per Commune Concilium Regis nostri provisum; by which it plainly appeareth, that Commune Concilium is the Assembly of the Lords Spiritual and Temporal, and the Commons in Parliament.

This Court is Magnum Concilium Angliœ.

And that there is Magnum Concilium Angliœ, it appears by the Statutes 32 E. 3. Cap. 18. That false Informers shall be brought before the Chancellor, Treasurer, and Great Council, to find Sureties to endure pœnam talionis, if their Suggestions were false. And all the Statutes made after that Act of 37. as well of Richard the second of Complaints before the Council, as of 13 H. 4. Cap. 7. for certifying Riots to the King and His Council, is intended His reat Council, which is the Court of Star-Chamber, afterwards by express Name called the Kings Council in the Star-Chamber, 19 H. 7. Cap. 18. In the Stat. 33, H. 8. Cap. 1. For false Tokens. 4, & 5 of Philip and Mary, for secret contracting with young Maidens, and divers subsequent Acts of Parliament.

The third, which is Privatum Concilium, or the Council of State, mentioned in the Acts of Eliz. 1. It hath been questioned, whether it were all one with the Great Council? Surely there is none of the Privy-Council but is also of the Great Council; but perhaps some may be of the Great Council, which are not of the Privy-Council.

It was a glorious sight upon a Star-day, when the Knights of the Garter appear with the Stars on their Garments, and the Judges in their Scarlet; and in that posture they have sate sometimes from nine in the morning till five in the afternoon, before every one had done speaking their minds in the Cause that was before them.

And it was usual for those that came to be Auditors at the Sentence given in weighty Causes, to be there by three in the morning to get convenient places and standing.

The Warden of the Fleet or his Deputy (then by name Mr. Ingram ) in those days was constantly attending in Court to receive their Lordships commands, as there was occasion.

For the Dignity of this Court I find it's said, that since the great Roman Senate, so famous to all Ages, as that they were called pro Jure miraculum Orbis, there hath no Court come so near them in State, Honour and Judicature; the Judges of this Court being surely, in Honour, State, and Learning, for Understanding, Justice, piety, and Mercy, equal, and in many of them exceeding the Roman Senate, by so much as Christian Knowledge exceedeth Humane Learning.

Nor hath this Court at any time wanted a Cicero or Hortensius, to make a defence for such as are there accused; nor is there any Bar of Pleading which affordeth so large a scope to exercise a good Orator, the usual Subject being the Defence of Honour and Honesty. But Chancellor Elsmore affecting Matter rather than Words, tyed the same to Laconical brevity; an Honour to a Court of Justice, to be sway'd rather by ponderous Reasons, than fluent and deceitful Speech.

It is not the least Honour and Dignity to this Court, that the Sentences and Judgments of the same are not the opinion of any private person, but the Judgment of many Noble, Wife, and Learned Men conjoyned together; so that it is a Topick Rule for assurance of Truth.

Another manifestation of the Dignity of it is, That the Proceedings are tam lento pede, without precipitation, but giving time to the Defendant to defend or excuse himself, both in producing Testimony, and in making defence at the Bar. And that it taketh hold in Judgment only of direct Proofs, speaking Circumstances, or more than probable Presumptions, and these not single but double; which causeth the Judgment thereof to be esteemed worthily, like the Laws of the Medes and Persians, irrevocable. Besides the Reasons of the Sentence being succinctly collected and knit together, and sagely delivered, by grave, learned and notable Personages, whose very Countenances add weight to their words, and who tye themselves to Certainty, and not to conjectural Proofs.

The Lord Chancellor or Keeper (for their Places by Act of Parliament are all one) have divers Priviledges of Sovereignty belonging to them, as the Supreme Judge there, which surely doth belong in his absence to him, who holdeth the Supreme Place in that Council.

There is no doubt, but the Lord Chancellor or Lord Keeper of the Great Seal is the Supreme Director of this High Court: For whereas any other Lord of the Presence speaketh not in the Court, unless his Head be uncovered, the Lord Chancellor or Lord Keeper speaketh with his Head covered, as a Person to whom all the rest owe a kind of Respect, or Reverence. And all Dukes and Marquesses, Earls, Barons, and Council of State in the Kingdom, attend the Hour and Occasion of this great Lord's going to sit in this High Court: And at his own discretion he commandeth the Chief-Justice, or any other Judge, to sit there at his pleasure.

Besides, this great Lord is the Mouth of the Court, to give Rule or Order, and hath a great Prerogative in that sense, above all other Courts at Westminster : For in other Courts, if the Opinions be equally divided, two one way, and two another way, there is no Judgment entred: But in this Court, if the Presence be equally divided, the Lord Chancellor, or the Lord Keepers Voice, swayeth it one way or other.

It seemeth to be an Imitation of the High Court of Parliament; for there, in equality of Voices, the Speaker's Voice is predominant. If the Lord Chancellor or Lord Keeper condemn or Fine the Defendant or Plaintiff, then hath it ever been undoubted; for that in things indifferent the best for the King's profit is to be taken but where his Voice in equality acquitteth, yet the preheminence of his Judgment, weigheth down the King's Profit, and the Person shall stand acquitted. For so Sir Stephen Proctor was acquitted by the Voice of Chancellor Elsmore; and so it was resolved by the Judges upon Reference made to them, and their Opinions, after deliberate hearing, and view of former Presidents, was published in open Court.

This Court for the most part is replenished with Dukes, Marquisses, Earls, Barons, also with Reverend Arch-Bishops and Prelates, grave Councellors of State, learned Judges, such a Composition for Justice, Religion, and Government, as may be well and truly said, (whilst so great a Presence kept within their Bounds) Mercy and Truth were met together.

Their number in the Reign of Hen. 7. and H. 8. have been near 40 at one time, and 30 in the Reign of Eliz. oft-times; but since much lessened. In King Charles His time there hath been 24 and 26 at a time, as in the Cases of Mr. Chambers, Sir James Bagg, the Bishop of Lincoln, and others.

Arch-Bishop Whitgift did constantly in this Court maintain the Liberty of the Free-Charter, that none ought to be fined but salvo Contenimento : he seldom gave any Sentence, but therein did mitigate in something the Acrimony of those that spake before him; but the slavish Punishment of Whipping, &c. was not heard to come from the Noble Spirits in those times sitting in that Honourable Presence.

When once this Court began to swell big, and was delighted with Blood, which sprung out of the Ears and Shoulders of the Punished, and nothing would satisfie the revenge of some Clery-men but cropt Ears, slit Noses, branded Faces, whipt Backs, gag'd Mouths, and withal to be thrown into Dungeons, and some to be banished, not only from their Native Country to remote Islands, but by Order of that Court to be separated from Wife and Children, who were by their Order not permitted to come near the Prison, where their Husbands lay in misery; Then began the English Nation to lay to heart the slavish condition they were like to come unto, if this Court continued in its greatness.

Records touching ancient Proceedings in the Court of Star-Chamber, transcribed out of Manuscripts, which remained in that Court.

28 Book of Assize pag. 51.

Coram nobis & Concilio, resolved to be coram Rege & Concilio in Camera Stellat.

So Sir Edw. Cook.

In the Register Fol. 124. 6 & 191. & 167.

A Writ to appear before the King and His Council.

Rotul. Patent. 55. Hen. 3. Membran. 17.

Bernard Nicolas a Merchant, questioned coram Rege & Concilio, for Fortune-telling, to the scandal of one Arnold Griffin, and was thereof acquited.

30 Ed. 3. Rotul. Patent. pars prima membran. 15.

Spinks appeared upon process coram Rege & Concilio, answered the Bill of one Radland, was afterwards acquitted, and Radland committed for his false accusation.

Claus. 40 Ed. 3. Membr. 3. dorso.

Isabel Falconberge appeared before the Council of the King in the Chamber of the Stars, near the receipt, about detaining of Deeds, and was there ordered and sworn to deliver all the Deeds, saving those that concerned her joynt Estate.

Claus 6. H. 4. membr. 22.

The Writ now used in Star-Chamber to appear coram Rege & Concilio, apud Westminster inxys 15. Pasc. test. 14. Februarii sub pœna 4 col.

Clauf. 17. H. 6.

In Camer' Stellat' coram Concilio Regis, Danvers acquitted of the rasure of a Record, and Brocket a Clerk of the Exchequer that did it, was fore-judged to have access for writing in any of the King's Courts of Record.

Claus. 17. H. 6. membr. 6.

John Foord appeared by Privy-Seal in Camera Stellat' infra Palatium nostrum Westmonaster', before the Lord Cromwell then Treasurer, and Fray and Fallam, two of the Barons of the Exchequer, and was there examined upon Oath; and upon his examination, and the testimony of Witnesses that were then examined, he was for fraudulent Packing of Wool in Broad-Cloths, which he sold to a Dutchman that transported them, committed to the Fleet, after sent to the Tower, and set on the Pillory in Cornhill.

Rotul. Patent. 31 Hen. 6.

Ralph Lord Cromwell acquitted of the villanous accusation of suspicion of Treason.

Patent. 8 Ed. 4. pars 3. membr. 14.

The King and his Council in the Star-Chamber Heard and Decreed the matter of title, between the Master and Brethren of the Hospital of St. Leonard's in Yorkshire, and the Inhabitants in Yorkshire, Cumberland, Northumberland, Westmoreland, touching Peter Corne.

Rotyl. Patent. 20 Ed. 4. pars 1, or 2.

In this Case of the Abbot of St. Edmonsbury against Thurston and others, the Defendants were punished before the King and His Council in the Court of Star-Chamber, for turbulent election of their Aldermen, a Constable, and other Officers.

28 Junii 1 Hen, 7.

The Defendant fined five pound for contempt to the King, and to pay the Plaintiffs Costs and Damages, and bound to his good behaviour.

28 Novembris 2 Hen. 7.

Bigott fined forty Marks upon Conviction of a Ryot.

43 Book ass. pl. 38.

Debasing of Price of Wool complained of, out of a report beyond Seas; the Offender convented coram Rege & Concilio, and fined and ransomed.

Statutes directing to the Court 17. R. 2. cap. 6.

The Lord Chancellor to have power to award damage against any Persons, that should make untrue suggestions against another before the King and His Council, or in Chancery.

2 R. 2. cap. 11.

Scandalum Magnatum to be punished by advice of the King's Council (which the Books say, is the Star-Chamber, and there it hath been frequently done.)

12 R. 2. cap. 11.

Publishers of false News and Tales to be punished by advice of the Council of the King (non obstante Statuto.)

vide 43. ass. pl. 18. 23, or 13. E. 4. 9. 2. R. 3. 10, 8 H. 7. 13.

By the Presidents before-mentioned it doth appear, that the Court of Star-Chamber was far more ancient than 3 H. 7. and that it had been and exercised jurisdiction both in Civil and Criminal Causes before the Stat. 3 Hen. 7.

Presidents of later times.

Trin. 1 Eliz. fol. 66

Attorn. vers. Jeroucker.

Sentenced 100l. for executing the place of High-Sheriff without being Sworn; and 100l. for making false return of a Writ for Election of Knights of the Shire.

Hill. 2 Eliz. fol. 88.

Breill. vers. Marten.

For a Riotous taking away of a Prisoner, taken in the Wars with the French.

Pasc. 2 Eliz. fol. 93.

Smith vers. Savery.

Sentenced for Riot, &c. sub paena awarded against them, to be sent to the Fleet, and the Principal Defendants to pay her Servants Fines.

Vers. Russel & alios.

Mich. 2 Eliz. fol. 102.

A Commission of Rebellion against the Defendants, directed to one Knight and three Esquires.

Hales vers Crouch.

Hill. 3 Eliz. fol. 118.

The Defendant sentenced to stand in the Pillory with Papers,for saying he could ever find an Oliver for a Rowland among the Queens Council to bear him out in his matters.

Woodcock vers. Barber.

Pasc. 3 Eliz. fol. 124.

An Injunction to give Possession sub pana 200l. and that being disobeyed, a Commission to certain Persons to put and continue them in Possession; Commission Recorded in the Court.

Lawley & al '.

Pasc. 3 Eliz. fol. 125.

Fined and Committed for disobedience and Contempt of the Queens Process.

Simmons vid. vers. Parry.

Pasc. 3 Eliz. fol. 129.

The Plaintiff adjudged to stand in the Pillory with Papers, profalso Clamore.

Lord Hastings & al' Comp sup. recog.

Mich. 3 Eliz. fol. 129.

For hearing of Mass discharged by the Queen, propt. Submiss.

Trin. 8 Eliz. fol. 138.

Ordinances for reformation of disorders in Printing and Selling of Books.

Attorn. vers. Ballives Leich-feild.

Hill. 4 Eliz. fol. 155.

Mr. Attorney ordered to put in an Information against them, for that they made no inquiry, nor did not punish the great Riots Committed in Litchfield.

Broughton vers. Dom. Howard Vic. Bindon.

Pasc. 4 Eliz. fol. 167.

The Lord Howard for reviling one of the Plaintiffs Witnesses, and calling him Knave, for that he had been examined against him, fined at 100l.

Pasc. 4 Eliz. fol.

It was ordered by the Court that no Process should be awarded upon Bill of perjury for giving evidence to a Jury, whereon Verdict did pass, unless the Justice before whom it was tried were made privy thereto.

Attorn. vers. Thyn.

Hil. 7 Eliz. fol. 58.

The Cause sentenced supra Confessionem of some, and proceed to examine Witnesses against the rest.

Pasc. 7 Eliz. fol. 66.

The Arch-Bishop of Conterbury and two other Bishops, sworn in Court by the Lord Chief Justice to be of the Queens Privy Coucil.

Hill. 8 Eliz. fol. 109.

Shardg vers. Bever.

The Defendant dismist, and Plaintiff fined 10l. to ride in a Cart about the City, for that he keeping ill order in his House, disobeyed the Defendant being Constable, when he came with the Watch to apprehend some leud Persons that were then in his House.

Pasc. 9 Eliz. fol. 161.

Constable vers. Whittington.

Upon sight of the Charter of the Bishop of Duresn, the two Chief Justices did certifie that the Bishop had Jura Regalia, and thereby might hear and determine Riots.

That notwithstanding, this Court (in matters where doubt of relief of Justice is) may hear Riots done within that County Palatine.

Pasc. 11 Eliz. fol. 241.

Mervin vers. Mervin.

It was ordered by the Queen, that the Plaintiff should re-examine as many of his Witnesses as he would, and they to be examined by the Clerk of the Court.

Pasc. Edw. 6. fol. 54.

Reed vers. Lygon.

The Cause to proceed as to the Party, notwithstanding the King's general Pardon.

34 Eliz. 30 No.

Brereton vers. Starkey.

Deeds damned notwithstanding the Pardon pleaded.

Mich. 14 Eliz. fol. 34.

Pyne vers. Hill.

In this Cause after it was fully heard (for Forgery) the Defendants were allowed to examine more Witnesses in their excuse than were there at first, on a second hearing; and then order for Witnesses to be examined, and at last sentence passed against the Defendants.

Hill. 35 Eliz. fol. 448.

Gerrard vers. Gregsham.

The Plaintiff died a day or twobefore the Cause was to be heard, yet the Cause prosecuted by Mr. Attorney at the day without Bill of Revivor or Subp. ad audiend. Judicium.

Attorney vers. Phillips.

The Defendant sentenced in this Court for delaying the excution of a Prisoner Convicted, notwithstanding he was sentenced in the Marches of Wales before for the same offence.

Trin. 36 Eliz. fol. 207.

Attorney vers. Owen.

The Defendant sentenced for beating his Grandfather, to be whipt before the Picture of his Grandfather, he being unable to come to the place where it was to be executed.

Hill. 13 Jac. fol. 121.

Elliot vers. Weblin.

The Defendant Committed for Arresting the Plaintiff in the County, at such time as he came to serve him with the Process of this Court.

Hill. 13 Jac. fol. 123.

Jo. Smith Plaintiff.

Committed for serving Process in the Church after Divine Service ended.

Pasc. 14 Jac. fol. 145.

Littleton vid. vers. Lowe.

For preferring a Scandalous and untrue Petition to His Majesty, and for a Libel; fined, and to stand in the Pillory, good Behaviour, Damages 200l.

Mich. 14 Jac. fol. 204.

Farrier & al' vers. Oldfeild & al'.

For a Practice to retract under their hands their former Testimony.

Mich. 14 Jac. fol. 210.

Dominus Montague vers. Luttersworth &al'.

The Attorney-General Sir Francis Bacon, sate as a Privy-Councellor in Court.

Mich. 12 Jac.

Gibbs vers. Clark & al.

The Defendant sentenced for impounding the Plaintiff as a Beast.

Trin. 13 Jac. fol. 55.

Attorn. Regis vers. Camber.

A Ne exeat Reg. against the Defendant, for that he swore he would depart the Kingdom rather than he would Marry.

Pasc. 5 Jac. fol. 147.

Young vers. Herlackenden & al'.

Divers Defendants charged with Forgery, and publishing thereof, two of them who were the procurers of the Deed to be drawn and written, sentenced to pay a Fine and stand in the Pillory; he that drew the Deed, and he that engrossed it acquitted, and the two Defendants sentenced are ordered to pay them Costs.

Concerning Ship-money.

The Case of Ship-money was this year brought upon the Stage by Mr. Hampden's refusal to pay the Tax laid upon him (living in Buckinghamshire, an Inland County) towards the finding of a Ship of so many Tun at Sea: and this business coming to be argued before all the Judges of England in the Exchequer Chamber, Oliver St. John of Lincolns Inn Esq; of Council with Mr. Hampden first argued, of which the Author gives the Reader a large Account, himself being then present, and took the Argument in Characters; yet begs the Readers pardon for any Mistakes, for it is not possible for a single Pen to be so circumspect, in mentioning so many Authorities of Books and Records, but that something may be misrecited or omitted, when his hand with continual writing might sometimes grow feeble, and thereby disinable him.—— Yet to the best of his knowledge he hath not wilfully mis-recited any thing.

Footnotes

1 The Pillory was placed between Westminster-Hall-Gate and the Star-Chamber.
2 Called the Bourne.