Historical Collections of Private Passages of State: Volume 1, 1618-29. Originally published by D Browne, London, 1721.
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To my noble Friends of the Lower-House of Parliament.
'If any County had held me worthy to have served in this Parliament, I had now been made a Member of your Lower-house, as formerly I have been in fundry other Parliaments: But how unkindly soever she dealeth with me, I will ever shew my thankfulness to her, and deliver, by way of observation, what I have heretofore learned in that grave and wise Assembly; for admonishment to the elder and a path-way for the younger to walk in.
'Parliaments, in my time, have been wont to take up some space at the first meetings, to settle the House, and to determine of unlawful Elections; and in this point they never had greater cause to be circumspect, than at this time: For by an Abuse lately crept in there is introduced a custom, which if it be not foreseen and prevented, will be a great derogation to the Honour, and a weakning to the power of your House. Where the Law giveth a Freedom to Corporations to elect Burgesses, and forbideth any indirect course to be taken in their Elections; many of the Corporations are so base minded, and timorous, that they will not hazard the indignation of a Lord Lieutenant's Letter, who underhand sticks not to threaten them with the charge of a Musket or a Horse at the Muster, if that he hath not the Election of the Burgesses, and not they themselves.
'And commonly those that the Lords recommend, are such as desire it for protection, or are so ignorant of the place they serve for, as that there being occasion to speak of the Corporation for which they are chosen, they have asked their Neighbours sitting by, whether it were a Sea or a Land Town?
'The next thing that is required, is Liberty of Speech, without which Parliaments have little force or power; Speech begets doubts, and resolves them, and doubts in speeches beget understanding; he that doubts much, asketh often, and learns much; and he that fears the work soonest prevents a mischief.
'This Priviledge of Speech is antiently granted by the testimony of Philip Comines a Stranger, who prefers our Parliaments and Freedom of the subject in them, above all other Assemblies; which Freedom, if it be broken or diminished, is negligently lost since the days of Comines.
'If freedom of speech should be prohibited, when men with modesty make repetition of the Grievances and Enormities of the Kingdom; when men shall desire reformation of wrongs and injuries committed, and have no relation of evil thought to his Majesty but with open heart and zeal express their dutiful and reverend respect to him and his service: I say, if this kind of liberty of Speech be not allowed in time of Parliaments, they will extend no further than to Quarter Sessions, and their Meetings and Assemblies will be unnecessary, for all means of disorder new crept in, and all remedies and redresses will be quite taken away.
'As it is no manners to contest with the King in his Election of Councellors and Servants, (for Kings obey no men, but their Laws) so were it a great negligence and part of Treason, for a subject not to be free in Speech against the abuses, wrongs, and offences, that may be occasioned by persons in Authority. What remedy can be expected from a Prince to the Subject, if the enormities of his Kingdom be concealed from him? Or what King so religious or just in his own nature, that may not hazard the loss of the hearts of his Subjects, without this Liberty of Speech in Parliament? For such is the misfortune of most Princes, and such is the unhappiness of Subjects, where Kings affections are settled, and their loves so far transported to promote servants, as they only trust and credit what they shall inform.
'In this Case, what Subject dares complain? Or what Subject dares contradict the words or actions of such a servant, if it be not warranted by freedom of a Parliament, they speaking with humility? For nothing obtaineth favour with a King, so much as diligent obedience.
'The surest and safest way betwixt the King and his people, which hath least scandal of partiality, is with indifference, with integrity and sincerity to examine the Grievances of the Kingdom, without touching upon the person of any man, farther than the cause giveth occasion. For otherwise, you shall contest with him that hath the Princes ears open to hearken to his inchanting tongue; he informs secretly, when you shall not be admitted to excuses, he will cast your deserved malice against him, to your contempt against the King, and seeking to lessen his Authority; and so will make the Prince the Shield of his Revenge.
'These are the sinister practises of such Servants, to deceive their Sovereigns, when our Grievances shall be authentically proved, and made manifest to the world by your pains to examine, and freedom to speak. No Prince can be so affectionate to a Servant, or such an Enemy to himself, as not to admit of this indifferent proceeding: If his Services be allowable and good, they will appear with glory; if bad, your labour shall deserve thanks both of Prince and Country.
'One Case I will instance, that is common in the mouths of all men, and generally, Vox populi, vox Dei. One of quality in the last Expedition to the Isle of Rhee, endeavoured to conceal the number of men lost in the last Encounter, and confidently affirmed their number not to exceed three or four hundred; till a Doctor of Physick, out of tenderness of Conscience, and duty to his Majesty, could not dissemble the vulgar and true Report, but acquainted his Majesty with Two thousand of his Subjects there lost. This was so contrary to the first information, and so displeasing to the Informer and his Designs, that he caused the Physician's remove from his Highness presence, who yet remains in kind of a banished man.
'The truth of these two Reports is easily determined by the Clerks of the Bands of each Company, and is worthy to be discovered for Truth's sake. Truth being so noble of it self, as it will make him honourable that promoteth it: Lies may shadow it, but not darken it; they may blame, but never shame it. By this small President his Majesty shall see himself abused; and it may be a means for him to reflect both upon Men and Matters.
'The Men slain are no less injured by concealing their names, whose lives were lost for King and Countrey. The Romans would have held it the highest Honour for their Friends and Posterity so to die: And a Parliament may fear, that those that stick not so palpably toswrong a King, may as unjustly cast aspersions upon the House, and other his loving Subjects.
'There is no remedy left for these mis-reports, but a freedom of Speech in Parliament. For there is no wise man that speaks, but knows what, and when to speak, and how to hold his peace. Whilst Subjects tongues are tied, for fear they may reach him a rap whose Conscience cries guilty; the King and his People are kept from understanding one another; the Enemy is heartened abroad, and the malignant humor of discontent nourished at home, and all for one who is like a Dragon, that bites the ear of the Elephant, because he knows the Elephant cannot reach him with his Trunk; and Princes areabused by false Reports whispered in their ears by Sycophants and Flatterers.
'The Grievances in general, are so many in number, as will serve for every Member of the House to present Two a piece to your views. And because I cannot be admitted amongst you my self, yet in regard I have been a Member of you, I will presume so far as to rank my self with you, and to tender the number of Two unto your consideration.
'Trajanus commended Plutarch for his Precepts in School, when he taught, That men should labour to deserve Honour, but avoid the getting of it basely; for if it were Reputation to have it by desert, it were Infamy to buy it for Money. In that Age where Rich men were honoured, Good men were despised.
'Honour is not to be valued according to the vulgar opinion of men, but prized and esteemed as the Sirname of Virtue, ingendred in the mind; and such Honour no King can give, or money can purchase. He that will strive to be more honourable than others, must abandon Passion, Pride, and Arrogancy; that so his Virtue may shine above others. For honour consists not in the Title of a Lord, but in the opinion People have of their Virtue; for it is much more honour to deserve, and not to have it, than to have it, and not deserve it.
'The first makes a man worthy of it, the other two are but abuses: For Favour is but a blind Fortune, an ounce of which at Court, is better than a pound of Wisdom: Fortune never favoureth, but flattereth; she never promiseth, but in the end she deceiveth; she never raiseth but she casteth down again. And this Advancement is meeter to be called Luck than Merit.
'That Honour that is compassed by Power, takes unto itself Liberty, and desires not to be governed by wisdom, but force. It knows not what it desireth, nor hath a feeling of any Injury: It is neither moved with sweet words, nor pitiful tears; such men leave not to do evil, because they have a desire to it, but when their power faileth to do it.
'Enter into the mischief the Kingdom hath suffered and doth suffer by it, and the cause of his Majesty's great wants will soon appear: If you Collect with yourselves how many hungry Courtiers have been raised to the highest top of honour
'After this, examine their Princely expence in these twenty five years, their estates in present, and what is requisite to maintain them in their future degrees of honour, to themselves and their Posterity, and you shall find his Majesty's annual Revenues consumed and spent upon those unworthy persons. Besides the impairing and impoverishing of the State, it brings with it the contempt of Greatness and Authority, it breeds an inward malice in Gentlemen better deserving of their Countrey, and better able to maintain the degree of Honour without charge to King or Kingdom, and whose Houses and Alliance may better challenge it than the best of them.
'The Character of a covetous man is, that he getteth his goods with care and envy of his Neighbours, with sorrow to his Enemies, with travel to his body, with grief to his Spirit, with Scruple to his conscience, with danger to his soul, with suit to his Children and curse to his heirs; his desire is to live poor, to die rich: But as these vices are made virtues, even so is he honoured for them with Title of Nobility.
'When Philip the second, King of Spain entred with Arms upon his Kingdom of Portugal, and though with his sword he might have made fittting Laws; yet were there some few Priviledges which the Portugals besought they might enjoy; one whereof was, That the King would make no unworthy Person Noble, or without their approbation, which was granted them, and to this day they hold that Freedom, which keeps that Kingdom in the antient State, Honour and Dignity, (that is to say) two Dukes, one Marquis and Eighteen Earls: And thus much for the point of Honour.
'The second Grievance I will recommend to your view is, The carriage of our Wars, the excessive charges vainly spent therein, the unworthiness of the people imployed, the grave and experienced neglected, the designs not warranted by reason and discretion, and the executions worse performed, with many other circumstances that depend upon it.
'Abusers of Princes are they that perswade them to War; to become poor, when they may live in Peace, and become rich; when they may be loved, cause them to be hated; when they may enjoy their lives surely, put them in hazard of cross fortune rashly; and lastly, having necessity to use their Subjects, put them into that necessity, as they refuse to do for him; All this is Pride of the Perswader, as Socrates faith.
'In the second I will clear the Parliament (in which I was a Member) of an ungrateful aspersion cast upon it, that is to say, That the Parliament was a cause to draw his Majesty, into a War, and failed on their parts to contribute to it.
'These have been often repeated, and the Parliament accused; the contrary hath been as often reiterated, and the truth expressed how far the Parliament proceeded therein. But to stop the mouths of such false Reports, and to free the Parliament of such a calumniation I must use this Argument.
'At the Assembly of Oxford, the Parliament being prorogued thither, Money was required of us towards the furnishing of his Majesty's Fleets then preparing, upon many reasons alledged, too tedious now to repeat, with one consent it was refused.
'Whereupon I infer, That before that proportion there was no Enemy, and therefore no War; The motion for Money being denied the Parliament instantly brake up; and feeing no Enemy was nominated, nor Money consented unto by us, I see not how the House can be taxed for Peace-breakers, but rather the name to be cast upon some young men, for youth by nature is prone to Pride, especially where experience wants; They are credulous in what they hear that pleaseth them, and incredulous in what is told them by wife men; They are despifers of others Counsels, and very poor in their own; They are dangerous for Princes to rely on, for self-will is of greater force than Precepts.
'The Voyage being ended, another followed the next Summer under the command of that noble Lord, the Earl of Lindsey, which through the weakness and disability of the Ships, was not able to perform what he had in charge, and what he desired.
'These with that to Algier, to make up a Mess of Island Voyages, I wish might be referred to the examination of choice and experienced Soldiers by Land and by Sea, to report their opinions of it. That so their Errors, their wasteful expences, their Negligences, their weak Designs, and want of experience, may appear, with the success that might have proved, if Advice and Counsel had had preheminence above Will and Arrogancy; For he that is ignorant of truth and knowledge, and led away with pride of his own opinions, must needs err. After it hath past your approbation, it is worthy his Majesty's view, who then shall see the difference of Actions well managed, and rash and heady enterprises undertook by ignorance, and performed by folly.
'Business of so great a consequence ought to be considered of with Counsel, and not only of the necessity, profit and honour, but of the possibility that was like to follow; for an action well begun is half ended.
'My experience in Discipline of War by Land and Sea can say no more than refer it to others; for 'tis a course I never was bred to in my youth, and now too late in mine age, to practise: Only one thing I observe, that in the two Journeys of Cadiz and Rhee, in the first a Land-Soldier commanded at Sea, who knew not what belonged thereunto; and the other was carried by him that was Soldier neither by Land nor by Sea; and the success proved accordingly in both: yet their errors were never questioned, but they both highly advanced.
'And it is no marvel; for according to the old saying, The best Fencer is not always the best Fighter; the fairer Titler, not the best experienced Soldier; nor the eye of a favourite at Court, the best General of an Host: And whosoever takes upon him that command without knowledge, beholds himself in a false Glass, that makes him seem what he is not.
'Of the Evils that followed upon these two Voyages your selves are sufficient Witnesses, and can judge of them: As namely, the Billering of Soldiers in the Countrey, and bringing their Ships into Harbours, not abating the entertainment of the one, nor the wages of the other. And yet notwithstanding this needless cost and charges, our Ships and Coasts are daily infested in such sort, as we dare not peep out of Harbour.
'Were the carriage of things now answerable to the Prudence and Presidents of former times, we cannot pretend a fear of Invasion; because our Ships are divided into several Harbours, and our Soldier billeted in Inland Countries; besides, the season of the year giveth no opportunity to an Enemy to attempt it.
'Here is a Mass of Wealth curiously consum'd, whether the King or Subject bear it, and no man bettered, but only those that have the titles of Soldiers yet never had the happiness or honour to see what appertained to service.
'Their example of disorder encourages the other to follow their Liberty, People that were wont to live poorly, yet safely, are now by these Fellows and their Followers robbed and spoiled, and no remedy for redress.
'What man is there so old in England that hath seen, or what youth so young that ever thought to see, Scottish men and Irish men garrisoned in England, and no Enemy appear against us? Or who could have imagined he should ever have seen our own people tyrannized over in our own Kingdom by these of our own Nation, and those Scottish and Irish, and not dare so much as complain?
'Would our Forefathers have thought it safety or policy to draw two thousand Scottish men and Irish men into the Isle of Wight, for their defence against France, when they of the Isle desired it not, nay, when they opposed it?
'Would they have thought it wisdom, that two thousand Mouths, besides the Inhabitants, should live on the food of that Island, and so bring themselves into want and penury of Victuals, if they should in earnest be attempted by an Enemy? Would they have thought fit the charge of it should be required of them, and yet they to suffer all injuries from the hands of strange Soldiers, when the meanest Boy in the Island is taught to manage Arms better than the best of them that are there billeted? No, but they would rather have thought it discretion, upon the return of those Voyages, to have caused the men to repair to the place where they were pressed, and to have ordered, that each Parish should have set them to work for their maintenance, with command to be ready, upon warning, to repair to the place of Rendezvous.
'There is no place or part of England so remote from the Sea, but they might have resorted to the Port assigned, before the Ships could be furnished or drawn together. They would have thought it more wisdom to have retired to their own Harbours, and to have had their men discharged, than to have continued this needless and expenceful course that is taken. They would have judged it better to have supplied the Isle of Wight with two thousand men out of the main Land, when they feared any evil to the Island, than to send for them out of Scotland, and to keep them in continual entertainment. They would have thought it more fit to have returned the barbarous Irish into the Countrey from whence they came, than to make them a vexation to the places and parts where they remain, seeing no shadow of reason can be pretended for it.
'England, with small charge, can raise what men his Majesty pleaseth to command, and that suddenly, and discharge them again without trouble or charge as quickly. The wife men of England would have thought two or three thousand pounds better spared, than thus wastfully consumed, and disorders committed; we may compute it to that sum, and yet keep our selves within that compass; And notwithstanding the want of Money, and the ways to exact it of the Subject, is all the Song now sung. He that sees and complains of the evil mannaging of things, is either imprisoned, banished the Court, or censured for a Discontent.
'There is no English-man, but knoweth the heart of every other truehearted English-man, and with one consent will all obey our Prince, and to his Person we owe all due Reverence; and we may truly say, no King is more happy in Subjects for their love, nor no Subjects readier to serve their King with their purses and persons; nor never people was better bless'd with a King, who is endowed with all kind of virtues, and stained with no manner of vice.
'False informers, and misguiders of good Kings, are much more perilous, than if Princes, themselves were evil: For commonly as Worms breed soonest in soft and sweet Wood, are the best Natures, inclined to Honour and Justice, soonest abused by false Flatterers.
'The evil they commit under the Authority of good Princes, is accounted as done by the Prince himself; but commonly such people in the end pay for it; for he that desires not to do good, cannot be wise, but will fall into four thousand follies.
'One of the first Proportions made to the House, will be for Money to support his Majesty's vast expence at this time, that the Enemy threatens thunder against the Kingdom. Your often Alarms upon such pretences, may make you now too secure; for true it is, that the last Parliament, Books were published of invincible Preparations intended against us, and nothing came of it. But beware you be not deceived by an old saying, That when one usually tells lies, he is not trusted when he speaks truth; for certainly the danger is much more, than by the power and greatness of another Enemy.
'In this case you must give for your own fakes, that so you may be fure to enjoy what is yours; for your Sovereign's fake, to maintain his greatness and state; and for your Countrey's sake, to keep it from oppression of the Enemy: but withall, you ought to lay down the condition of the Kingdom, and to shew, that your necessity cannot run parallel with your hearts and your desires; that your minds will be carried with a willingness to give, but your hands will keep back your hearts for want of ability to give.
'Themiftocles demanding Tribute of the Athenians, told them, He brought two Gods with him, that is to say, Perswasion and Violence: They answered, That they had two other Gods in their Countrey, both great and powerful, which were Poverty and Impossibility, which hindred them from giving.
'We may truly say, That God hath so placed and seated this Isle of England, that nothing but evil counsel can hurt it. But true it is, advice that is not warranted from wise Men, may prove more forcible and perilous, than the power of an Enemy.
'There was never Censor that Judged, Senator that Ordered, Emperor that Commanded, Council that Executed, Orator that Perswaded, nor any other mortal man, but sometimes he committed Errors, and deserved either blame or punishment for his misdoings; and if he were wise, desired advice what to do.
'St. Gregory faith, No man can give so faithful counsel, as he who loves one more than his gifts; then who are, or can be, so true Counsellors to our noble King, as a House of Commons that hath no relation to a King's gift, but only to his Honour, flourishing estate and safety?
That you present to his Majesty in all humbleness, your willing minds and hearts, to repair and fit to Sea his Majesty's Navy, your selves to have power to make them able and serviceable with the advice of experienced men that you may call unto you. 'This is a matter of great importance at this present for the safety of King, Realm, and Subject for the strength of the Kingdom much depends upon this Bulwark, which we may well term, The Walls of England.
'His Majesty shall find himself much eased by it, Businesses shall be carried without his trouble or care. Money shall not be fought for to that end, but provided by you, his Majesty may dispose of the rest of his Revenue at his pleasure.
'By your frugality and husbandry, his Majesty shall have occasion to judge of things past, of yours in present, and hereafter it will serve for a President to walk after,; it will stop the mouths of malignant tongues, that inform his Majesty of the unwillingness of the Subject to give; and it will make it apparent, that their true grief is not in the matter of giving, but to see the evil employing of it when it is given.
'If any man shall pervert this good meaning and motion of yours, and inform his Majesty, 'Tis a derogation from his Honour to yield to his Subjects upon Conditions: His Majesty shall have good cause to prove such mens eyes malicious and unthankful, and thereby to disprove them in all their other actions: For what can it lessen the reputation of a Prince, whom the Subject only and wholly obeyeth, that a Parliament, which his Majesty doth acknowledge to be his highest Council, should advise him, and he follow the advice of such a Council? What dishonour rather were it to be advised and ruled by one Counsellor alone, against whom there is just exception taken of the whole Common-wealth?
'Marcus Portio faith, That the Common-wealth is everlasting, where the Prince seeks to get obedience and love, and the Subjects to gain the affection of the Prince; and that Kingdom is unhappy where their Prince is served out of ends and hope of reward, and hath no other assurance of them but their service.
Thursday the 20 of March, the House setled their Grand Committees for Religion, Grievances, Courts of Justice and Trade, and agreed upon a Petition to the King for a Fast; unto which the Lords also consented.
Most Gracious Sovereign,
We pour most humble and loyal subjects, the Lotus Spiritual and Temporal in this present Parliament assembled, upon a tender and compassionate sense of the extreme Calamities of the Reformed Churches abroad, and with much forum apprehending the displeasure of Almighty God declared against our selves, the manifold evils already fallen upon us, and those which are further threatened, as by your Sacred Majesty was intimated unto us, even to the utter deffruation and subversion of this Church and State, and which our fins have justly deferved; and being now by pour Majesty's gracious favour assembled in Parliament, as the great Council of this pour Kingdom, to consult of such means as we think fittest to redress the present, and present the future evils, wherein we, through God's blessing, intend to employ our utmost endeabours, humbly beleech your Daielty, that by your special Command, one or more days may be forthwith solemnly let apart, wherein both ourselves and the whole Kingdom may, by fasting and mayers, seek reconciliation at the hands of Almighty God, and with humble and penitent hearts beseech him to remove those miseries that lye upon us and our neighbour Churches, to avert those which are threatened, to continue the Favours we yet enjoy, and particularly to bellow his abundant blessing upon your Majesty and this present Parliament, so that all our Counsels and Resolutions being blessed by his divine assistance, may produce much honour and safety to pour Majesty, pour Peoploe and Allirs.
Saturday the 22. of March was spent in opening the grievances and state of the Kingdom, as billeting of Soldiers, Loans by Benevolences and Privy Seal, and the imprisoning certain Gentlemen who refused to lend upon that account, who afterwards bringing their Habeas Corpus were notwithstanding remanded to prison; nor did the House encline to supply his Majesty till these Grievances were redressed: To which purpose Sir Francis Seimour thus began;
'This is the great Council of the Kingdom, and here (if not here alone) his Majesty may see as in a true glass the state of the Kingdom; we are called hither by his Majesty's Writs to give him faithful counsel such as may stand with his honour; but this we must do without flattery: we are sent hither by the Commons to discharge that trust reposed in us, by delivering up their just grievances, and this we must do without fear: Let us not therefore be like Cambyses Judges, who being demanded of their King whether it were not lawful for him to do what in itself was unlawful; They (rather to please the King, than to discharge their own consciences) answered, that the Persian Kings might do what they listed: This base flattery tends to mischief, being fitter for reproof than imitation; and as flattery, so fear taketh away the judgment, let us not then be possessed with fear or flattery, of corruptions the basest: For my own part I shall shun both these, and speak my conscience with as much duty to his Majesty as any man, but not neglecting the Publick, in which his Majesty and the Commonwealth have an Interest: But how can we shew our affections whilst we retain our fears? Or how can we think of giving of Subsidies, till we know whether we have any thing to give or no; for if his Majesty be perswaded by any to take from his Subjects what he will, and where it pleaseth him; I would gladly know what we have to give? It is true, it is ill with those Subjects that shall give Laws to their Princes, and as ill with those Princes which shall use force with those Laws; that this hath been done, appeareth by the billeting of Soldiers, a thing no way advantagious to his Majesty's service, but a burthen to the Common-wealth; this also appeareth by the last Levy of Money against an act of Parliament. Again, Mr. Speaker, what greater proof can there be of this, than the imprisonment of divers Gentlemen for the Loan, who if they had done the contrary for fear, their fault had been as great as theirs that were the projectors in it; & to countenance these Proceedings, hath it not been preached (or rather prated) in our Pulpits, that all we have is the King's Jure Divino say these time servers, they forsake their own function, and turn ignorant States-men; we see how willing they will be to change a good conscience for a Bishoprick, and (Mr. Speaker) we see how easy it is for a Prince, how just and good soever, to be abused, in regard he must see with other mens eyes, and hear with other mens ears. Let us not flatter his Majesty, it is too apparent to all the world, the King and People suffer more now than ever: His Majesty in his Affairs abroad, and his People in their Estates at home: But will you know the reason of all this, let us look back to the Actions of former Princes, and we shall find that those Princes have been in greatest want and extremity that exacted most of their Subjects, and most unfortunate in the choice of their Ministers, and to have failed most in their undertakings; happy is that Prince that hath those that are faithful of his Council: That which his Majesty wanted in the management of his Affairs concerning France, and Spain, I am clear was his want of faithfulCouncil to advise. The reason is plain, a Prince is strongest by faithful and wise Council, I would I could truly say, such have been imployed abroad. I will confess, and still shall from my heart, he is no good Subject, nor well affected to his Majesty and the State, that will not willingly and freely lay down his life, when the end may be the service of his Majesty, and the good of the Common-weal: But on the contrary, when against a ParliamentLaw, the Subject shall have taken from him his Goods against his will, and his Liberty against the Laws of the Land: shall it be accounted want of duty in us to stand upon our Priviledges, hereditary to us, and confirmed by so many Acts of Parliament?
'In doing this we shall but tread the steps of our forefathers, who ever preferred the publick Interest before their own right, nay, before their own lives; nor can it be any wrong to his Majesty to stand upon them so as thereby we may be the better enabled to do his Majesty's service; but it will be a wrong to us and our posterity and our consciences, if we willingly forego that which belongs unto us by the Law of God, and of the Land, and this we shall do well to present to his Majesty; we have no cause to doubt of his Majesty's gracious acceptation.
'This debate (said Sir Tho. Wentworth) carries a double Aspect towards the Sovereign and the Subject, though both be innocent, both are injured and both to be cured. Surely, in the greatest humility I speak it, these illegal ways are punishment and marks of indignation, the raising of Loans strengthned by Commission, with unheard of Instructions and Oaths; the billeting of Soldiers by the Lieutenants, and Deputy Lieutenants, have been as if they could have perswaded Christian Princes, yea worlds, that the right of Empires, had been to take away by strong hands, and they have endeavoured as far as possible for them, to do it. This hath not been done by the King (under the pleasing shade of whose Crown I hope we shall ever gather the fruits of Justice) but by Projectors who have extended the Prerogative of the King, beyond the just Symetry, which maketh a sweet harmony of the whole: They have brought the Crown into greater want than ever, by anticipating the Revenues; And can the Shepherd be thus smitten and the sheep not scattered? They have introduced a Privy Council ravishing at once the Spheres of all antient Government, imprisoning us without either Bail or Bond; they have taken from us, what? What shall I say indeed, what have they left us? All means of supplying the King and ingratiating our selves with him, taking up the root of all propriety, which if it be not seasonably set again into the ground by his Majesty's own hands, we shall have instead of beauty, baldness. To the making of those whole, I shall apply my self, and propound a Remedy to all these diseases. By one and the same thing have King and People been hurt, and by the same must they be cured; to vindicate, what, new things? No, our antient vital Liberties by reinforceing the antient Laws made by our Ancestors, by setting forth such a Character of them, as no licentious spirit shall dare to enter upon them; and shall we think this is a way to break a Parliament? No, our desires are just, I speak truly, both for the Interest of King and People, if we enjoy not these, it will be impossible for to relieve him.
'Therefore let us never fear they shall not be accepted by his goodness; wherefore I shall shortly descend to my motions, consisting of four parts, two of which have relation to our Persons, two to the propriety of Goods for our Persons, First, the freedom of them from imprisonment. Secondly, from employment abroad, contrary to the antient Customs: For our Goods, that no Levies be made, but by Parliament. Secondly, no billeting of Soldiers. It is most necessary that these be resolved, that the Subject may be secured in both.
'This is the Crisis of Parliaments; we shall know by this if Parliaments live or die, the King will be valued by the success of us, the Counsels of this House will have operations in all, 'tis fit we be wise, his Majesty begins to us with affection, proclaiming, that he will rely on his Peoples love. Preservation is natural, we are not now on the bene esse, but on the esse; be sure England is ours, and then prune it. Is it no small matter that we have provoked two most Potent Kings? we have united them, and have betrayed ourselves more than our enemies could. Men and Brethren, what shall we do? Is there no Balm in Gilead? If the King draw one way, the Parliament another, we must all sink. I respect no particular, I am not so wise to contemn what is determined by the major part, one day tells another, and one Parliament instructs another. I desire this House to avoid all contestations, the hearts of Kings are great,'tis comely that Kings have the better of their Subjects. Give the King leave to come off, I believe his Majesty expects but the occasion. 'Tis lawful, and our duty, to advise his Majesty, but the way is to take a right course to attain the right end; which I think may be thus: By trusting the King and to breed a trust in him; by giving him a large Supply according to his wants, by prostrating our Grievances humbly at his feet, from thence they will have the best way to his heart, that is done in duty to his Majesty. And to say all at once, Let us all labour to get the King on our side, and this may be no hard matter, considering the near subsistence between the King and People.
'Dum tempus habemus bonum operemur. I am absolutely to give Supply to his Majesty; yet with some caution. To tell you of Foreign 'dangers and inbred evils, I will not do it; the State is inclining to a Consumption, yet not incurable; I fear not Foreign Enemies, God send us peace at home: For this disease I will propound remedies, I will seek nothing out of mine own head, but from my heart, and out of Acts of Parliament. I am not able to fly at all Grievances, but only at Loans. Let us not flatter ourselves; who will give Subsidies, if the King may impose what he will? and if after Parliament, the King may inhaunce what he pleaseth? I know the King will not do it, I know he is a Religious King, free from personal vices; but he deals with other mens hands, and sees with other mens eyes. Will any give a Subsidy that will be taxed after Parliament at Pleasure? The King cannot tax any by way of Loans, I differ from them, who would have this of Loans go amongst Grievances, but I would have it go alone.
'I'll begin with a noble Record, it cheers me to think of it, 25 E. 3. It is worthy to be written in letters of gold; Loans against the will of the Subject, are against Reason, and the Franchises of the Land, and they desire restitution: What a word is that Franchise? The Lord may tax his Villain high or low, but it is against the Franchises of the Land, for freemen to be taxed by their consent in Parliament; Franchise is a French word, and in Latine it is Libertas. In Magna Charta it is provided, that, Nullus liber homo bapatur velimprisonetur aut disseisietur de libero tenemento suo, &c. nisi per legale judicium parium suorum vel per legem terrœ; which Charter has been confirmed by good Kings above thirty times.
'I had rather you would hear any than me; I will not answer what hath been already spoken; my intent is not to stir, but to quiet; not to provoke, but to appease: My desire is, that every one resort to his own heart to reunite the King and the State, and to takeaway the scandal from us; every one speaks from the abundance of his heart: I do conclude out of every ones Conclusion, to give to the King, to redress Grievances; all the difference is about the manner; we are all Inhabitants in one House, the Commonwealth, let every one in somewhat amend his House, somewhat is amiss: But if all the house be on fire, will we then think of mending what is amiss? will you not rather quench the fire? The danger all apprehend. The way that is propounded, I seek not to decline, illegal courses have been taken, it must be confessed, the redress must be by Laws and Punishment; but withall, add the Law of Necessity; Necessity hath no Law, you must abilitate the State to do, what you do by Petition require. It is wished we begin with Grievances, I deny not that we prepare them, but shall we offer them first? Will not this seem a Condition with his Majesty? Do we not deal with a wife King, jealous of his Honour? All Subsidies cannot advantage his Majesty so much, as that his Subjects do agree to supply him; this will amaze the enemy more than ten Subsidies: Begin therefore with the King, and not with ourselves.
'This days debate (said Sir Robert Philips) makes me call to mind the custom of the Romans, who had a solemn Feast once a year for their Slaves, at which time they had liberty (without exception) to speak what they would, whereby to ease their afflicted minds, which being finished, they severally returned to their former servitude. This may, with some resemblance and distinction, well set forth our present state; where now, after the revolution of some time, and grievous sufferings of many violent oppressions, we have (as those Slaves had) a day of liberty of speech; but shall not, I trust be herein Slaves, for we are free, we are not Bond-men, but Subjects; these after their Feasts were Slaves again; but it is our hope to return Free-men. I am glad to see this mornings work, to see such a sense of the Grievances under which we groan. I see a concurrence of grief from all parts, to see the Subject wronged, and a fit way to see the Subject righted: I expected to see a division, but I see honourable conjunction, and I take it a good Omen. It was wished by one, that there were a forgetfulness of all; let him not prosper that wisheth it not. No, there is no such ways to perfect remedy, as to forget injuries, but not so to forget, as not to recover them. It was usual in Rome to bury all injuries, on purpose to recover them. It was said by a Gentleman, that ever speaks freely, We must so govern ourselves, as if this Parliament must be the Crysis of all Parliaments, and this is the last. I hope well, and there will be no cause for the King, our Head, to except against us, or we against him. The dangers abroad are presented to us, he is no English-man that is not apprehensive of them.
'We have provoked two potent Kings, (the one too near) who are too strongly joined together; the dangers are not Chimerical, but real, I acknowledge it, but it must be done in proportion of our dangers at home; I more fear the violation of Publick Rights at home, than a Foreign Enemy. Must it be our duties and direction to defend Foreign dangers, and establish security against them, and shall we not look at that which shall make us able and willing thereunto? We shall not omit to confide and trust his Majesty, otherwise our Counsels will be with fears, and that becomes not English-men. The unaccustomed violences (I have nothing but a good meaning) trench into all we have. To the four particulars already mentioned, wherein we suffer, one more may be added, left God forbear to hear me in the day of my trouble; our religion is made vendible by Commissions: Alas! now a toleration is granted (little less) and men for pecuniary annual rates dispensed withal, whereby Papists without fear of Law, practise Idolatry, and scoff at Parliaments, at Laws, and all. It is well known, the people of this State are under no other Subjection, than what they did voluntarily consent unto, by the original contract between King and people; and as there are many Prerogatives and Priviledges conferred on the King, so there are left to the Subject many necessary Liberties and Priviledges, as appears by the common Laws and Acts of Parliaments, notwithstanding what these two (fn. 1) Sycophants have prated in the Pulpit to the contrary. Was there ever yet King of England that directly violated the Subject's Liberty and Property, but their actions were ever complained of in Parliament, and no sooner complained of, than redressed? 21 E. 3. there went out a Commission to raise money in a strange manner; the succeeding Parliament prayed redress, and, till H. 8. we never heard of the said Commissions again.
'Another way was by Loan, a Worm that canker'd the Law, the Parliament did redress it, and that money was paid again. The next little Engine was Benevolence; what the force of that was, look into the Statute of R.3. which damned that particular way, and all other indirect ways.
'I will here make a little digression: The (fn. 2) County I serve for were pleased to command me to seek the removal from them of the greatest burthen that ever people suffered. It was excellently said, Commissionary Lieutenants deprive us of all Liberty; if ever the like was seen of the Lieutenancy that now is, I will never be believed more: They tell the people, they must pay so much upon Warrant from a Deputy-Lieutenant or be bound to the good behaviour and send up to the Lords of the Council; it is the strangest Engine to rend the Liberty of the Subject that ever was; there was now a Decemviri in every County, and amongst that Decemviri, there is some Claudius Appius that seek their own revenges; We complain of Loans and Impositions, but when Deputy Lieutenants may send Warrants to imprison ourpersons at pleasure, if we pay not what they sent for, it concerns us to preserve the Countrey in freedom and to consider of this kind of people. There is now Necessity brought in for an argument, all know that Necessity is an armed man, and that Necessity is an evil Counseller, I would we had never known that Council; we are almost grown like the Turks, who send their Janizaries, who place the Halberd at the door, and there he is Master of the house. We have Soldiers billeted, and Warrants to collect money, which if they do not, the Soldiers must come and rifle. The Romans sending one into Spain, found no greater complaint, than the discontent that did arise from Soldiers placed amongst them. I would you would look into Fortescue, where he puts the Prince in mind, what misery he saw, where Soldiers were put upon the people: But, faith he, no man is forced to take Soldiers but Inns, and they to be paid by them; I desire we resort to his Majesty for redress, and to reduce all into bounds.
'The other way of Grievance is a Judgment in a legal course of proceeding; we have had three Judgments of late times, all exceeding one another in prejudice of the Subject: The first was, That that was judged in all formality, the ☆ Postnati Case, which People I honour; for we find many of them love us more than we do ourselves; I do not complain of it, but only mention it.
'There is a Judgment, if I may so call it, a fatal Judgment against the Liberty of the Subject, Mic. 3 Car. in Sir John Heveninghame's Case, argued at the Bar, and pronounced but by one alone; I can live, although another without Title be put to live with me; nay, I can live, though I pay Excises and Impositions for more than I do; but to have my liberty, which is the soul of my life, taken from me by power, and to be pent up in a Goal without remedy by Law, and this to be so adjudg'd to perish in Goal; O improvident Ancestors! Oh unwise Forefathers! to be so curious in providing for the quiet possession of our Lands and Liberties of Parliament, and to neglect our Persons and Bodies, and to let them die in prison, and that durante beneplacito, remediless; If this be Law, what do we talk of our Liberties? why do we trouble our selves with the dispute of Law, Franchises, Propriety of Goods? It is the Summa totalis of all miseries; I will not say it was erroneous, but I hope we shall speak our minds, when that Judgment comes here to be debated. What may a man call this? if not Liberty; having passed in some confusion in the fashion of my delivery. I conclude: We will consider two particulars, his Majesty, and his People: His Majesty calls to us, and craves our assistance to revive again his Honour, and the Honour of the Nation: The People sends us, as we hope, with that direction, that we shall return to them with that Olive-branch, that assurance of being free from those calamities, under which they can hardly breath. Our sins have brought on us those miseries, let us all bring our Portion to make up the wall: we come with Loyal hearts; his Majesty shall find, that it is we that are his faithful Counsellors; let all Sycophants be far removed from his Majesty, since we cannot help his Majesty without opening our Grievances; let us discharge our duties therein; yet while we seek Liberty, we will not forget Subjection; all things a State can be capable of, either blessings or punishments, depend on this meeting; if any think the King may be supplied, and the Common-wealth preserved without redress of Grievances, he is deceived. The Kings of England were never more glorious than when they trusted their Subjects; let us make all haste to do the Errand for which we came; let the House consider to prepare our Grievances fit for his Majesty's view, not to make a Law to give us new Liberties, but Declaratory, with respective Penalties; so that those which violate them, if they would be vile, they should fear infamy with men; and then we shall think of such a Supply as never Prince received, and with our moneys we shall give him our hearts, and give him a new people rais'd from the dead: Then I hope this Parliament will be entituled, The Parliament of wonders, and God's judgments diverted, and these beams of goodness shall give us life, and we shall go home to our own Countreys, and leave our Posterities as free as our Ancestors left us.
'We all think fit (said he) that both these go hand in hand together; but let me put you in mind of thatwhich concerns the King, let him have the precedency of honour, if not of time; let the heads of the King's Supply first be propounded, this will be an honour to the King, and will do service to the House; the end of this Parliament is the subsistence of the King, as he himself hath declared, and such a Command is not to be slighted; the King himself propounded it, and then he will agree with us in other requests that are fit for a King to give; we that have the happiness to attend his Majesty, can tell you, that no King is more ready to hear the complaints of his Subjects, and withall you know no King is more sensible of all reproaches which touch his Honour.
'Will it not be fit to grant him this Honour, to have the Precedency? It was the speech of an antient Parliament man, Let us deal gently with our King; by these Laws that we make, we do bind our selves, and it is an addition of his power: None that dies, but leaves his Heir to the fa vour of the King; none that lives but needs the favour of the King: we having made our first union with God, it is next intended, that we be at one with our King: Is it not fit we be at peace with our head? His Majesty desires it, and expects. After this unity with our head, there is consideration to be had of unity with our selves; after this, we shall be all knit in one body, we shall all pronounce clearly Shiboleth, and we shall consider of the grievances & irregularities of the times, which none desires to be reform'd more than his Majesty, and those whom you think most averse: Let us take the best way for Reformation: And will not this be a happy union, if the whole body concur to reduce all into regularity? if Laws be our Birth-rights, we shall hereby recover them and their splendor; this will have good aspect abroad, and it will give courage to our men that have been despised, and will prevent practises to continue divisions amongst us, both at home and abroad. The first sower of seeds of distractions amongst us, was an Agent of Spain, Gondomar, that did his Master great service here and at home.
'Since that we have had other Ministers that have blown the fire: The Ambassador of France told his Master at home, what he had wrought here the last Parliament, namely, divisions between King and People, and he was rewarded for it. Whilst we fit here in Parliament, there was another intended Parliament of (fn. 3) Jesuites, and other well-willers, within a mile of this place; that this is true, was discovered by Letters sent to Rome: the place of their meeting is chang'd, and some of them are there where they ought to be; if you look in your Kalendar, there is a day of S. Joseph, it was called in the Letter the Oriental day, and that was the day intended for their meeting. I speak this, to see God's hand to work our union in their division; they are not more rent from us, than they are from themselves. I desire the meanest judgment to consider what may follow by giving precedency to his Majesty, and by so doing, we shall put from our selves many imputations. If we give any occasion of breach, it is a great disadvantage; if otherwise, it is an obligation to his Majesty, which his Majesty will not forget.
Then he made a motion, That the same Committee may hear Propositions of general heads of Supply, and afterwards go to other businesses of the day for Grievances. Others preferred the consideration of Grievances, as a particular root that invade the main Liberty of the Subject. It is the Law, (faid they) that glorious fundamental Right, whereby we we have power to give; we desire but that his Majesty may see us have that right therein, which, next to God, we will desire; and then we doubt not, but we shall give his Majesty all supply we can. The time was, when it was usual to desire favours for sowing discords, as Gondomar did for Rawley's head. But the debates of this day came to no Resolution.
The day following, Mr. Secretary Cook tender'd the House certain Propositions from the King touching Supply; and told them, That his Majesty finding time precious, expects that they should begin speedily, left they spend that time in deliberation, which should be spent in action; that he esteems the Grievances of the House his own, and stands not on Precedence in point of Honour. Therefore to satisfy his Majesty, let the same Committee take his Majesty's Propositions into consideration, and let both concur, whether to fit on one in the forenoon, or the other in the afternoon, it is all one to his Majesty.
Hereupon the House turned themselves into a Committee, and commanded Edward Littleton Esq; unto the Chair, and ordered the Committee to take into consideration the Liberty of the Subject, in his Person, and in his Goods; and also to take into consideration his Majesty's Supply. In this Debate, the Grievances were reduced to fix Heads, as to our Persons.
- 1. Attendance at the Council-board.
- 2. Imprisonment.
- 3. Confinement.
- 4. Designation of Foreign Imployment.
- 5. Martial Law.
- 6. Undue Proceedings in matter of Judicature.
The first matter debated, was the Subject's Liberty in his Person; the particular instance was in the case of Sir John Heveningham, and those other Gentlemen who were imprisoned about Loan-money, and thereupon had brought their Habeas Corpus, had theirCase argued, and were nevertheless remanded to Prison, and a Judgment, as it was then said, was entred. Whereupon Mr. Creswel, of Lincolns-Inn, spake to this purpose.
'Justice (said he) is the Life and the Heart-blood of the Commonwealth: and if the Common-wealth bleed in the Master-vein, all the Balm in Gilead is but in vain to preserve this our Body of Policy from ruin and destruction. Justice is both Columna & Corona Reipublicœ; she is both the Column and the Pillar, the Crown and the Glory of the Common-wealth; this is made good in Scripture by the judgment of Solomon, the wisest King that ever reigned upon Earth. For first, she is the Pillar; for he faith, By Justice the Throne shall be eft ablished. Secondly, she is the Crown; for he faith, That by Justice a Nation shall be exalted.
'Our Laws, which are the rules of this Justice, they are the neplus ultra to both the King and the Subject; and as they are the Hercules Pillar, so they are the Pillar to every Hercules, to every Prince, which he must not pass.
'Give me leave to resemble her to Nebuchadnezzar's Tree, for she is so great, that she doth shade not only the Palace of the King, and the House of Nobles, but doth also shelter the Cottage of the poorest Beggar.
'Wherefore, if either now the blasts of indignation, or the unresistable violator of Laws, Necessity, hath so bruised any of the Branches of this Tree, that either our Persons, or Goods, or Possessions, have not the same shelter as before; yet let us not therefore neglect the root of this great Tree, but water it with our Tears, that to these bruised Branches may be recovered, and the whole tree again pro per and flourished know well, that Cor Regis inscrutabile; and that Kings, although they are but men before God, yet they are gods before men. And therefore to my gracious and dread Sovereign (whose virtues are true qualities, ingenerate both in his judgment and nature)let my arm be cut off; nay, let my soul not live that day, that I shall dare to lift up my arm to touch that forbidden Fruit, those Flowers of his Princely Crown and Diadem.
'But yet in our Eden, in this Garden of the Common-wealth, as there are the Flowers of the Sun, which are so glorious, that they are to be handled only by Royal Majesty; so are there also some Daises, and wholsome Herbs, which every common hand, that lives and labours in this Garden, may pick and gather up, and take comfort and repose in them: Amongst all which, this Oculus Diei, this Bona libertar, is one, and the chief one. I will now descend to the Question, wherein I hold, with all dutiful submission to better judgments that these acts of Poerw, in imprisoning and consining of his Majesty's Subjects in such manner, without any declaration of the Cause, are against the Fundamental Laws and Liberties of this Kingdom.
'To proceed therefore in maintenance of my first reasons; I find our Law doth so much favour the Subjects liberty of his person, that the body of a man was not liable to be arrested or imprisoned for any other cause at the Common-Law, but for force and things done against the Peace: For the Common-Law (being the preserver of the Land) so abhorreth force, that those that commit it, she accounteth her capital Enemies, and therefore did subject their Bodies to imprisonment. But by the Statute of Malbridge, cap. 24. which was made 35 H.3. who was the eighth King from the Conquest, because Bailiffs would not render accompts to their Lords, it was enacted, that their Bodies should be attached. And after by the Stat. 23 E.3.17. who was the eleventh King after the Conquest, because men made no conscience to pay their Debts, it was enacted, That their Bodies should likewise be attached. But before those Statutes, no man's Body was subject to be taken or imprisoned, otherwise than as aforesaid; whereby it is evident, how much the Common-Law favoured the Liberty of the Subject, and protected his Body from imprisonment.
'I frame it thus (said he) If the King have no absolute power over our Lands or Goods, then a fortiori, not over our Persons, to imprison them, without declaring the Cause; for our Persons are much more worth than either Lands or Goods; which is proved by what I have said already: And Chrift himself makes it clear, where he faith, An non est corpus supra vestimentum? Is not the Body of more worth than the Raiment? Nay, I may well say, that almost every leaf and page of all the Volumes of our Common Law prove this right of Propriety, this distinction of meum and tuum, as well between King and Subject as one Subject and another: And therefore my Conclusion follows, that if the Prerogative extend not neither to Lands nor to Goods, then ´ fortiori, not to the Person, which is more worth than either Lands or Goods, as I said. And yet I agree, that by the very Law of Nature, service of the Person of the Subject is due to his Sovereign; but this must be in such things which are not against the Law of Nature; but to have the body imprisoned without any cause declared, and so to become in bondage, I am sure is contary unto, and against the Law of Nature, and therefore not to be enforced by the Sovereign upon his Subjects.
3. 'My next Reason is drawn ab inutili & incommodo; for the Stature de frangentibus prisonam, made 1E.2. is, Quod nullus qui prisonam fregerit subeat judicium vitœ vel membrorum pro fractione prisone tantum nisi causa pro qua captus imprisonetur tale judicium requirat. Whence this conlusion is clearly gathered, That if a man be committed to prison without declaring what cause; and then if either malefactor do break the prison, or the Goaler suffer him to escape, albeit the Prisoner so escaping had committed crimen lœsœ Majestatis; yet neither the Goaler, nor any other that procured his escape, by the Law suffer any corporal punishment for setting him at large; which if admitted might prove in consequence a matter of great danger to the Common-wealth.
4. 'My next Reason is drawn ab Regis honore, from that great Honour the Law doth attribute unto Sovereign Majesty; and therefore the rule of Law is, that Solum Rex hoc non potest facere, quod non potest juste agere. And Hussey Chief Justice, 1 H. 7. faith, that Sir John Markham told King E. 4. He could not arrest a man either for Treason or Felony, as a Subject might, because that if a King did wrong, the Party could not have an Action against him; and if the King's Writ, under his Great Seal, cannot imprison the Subject, unless it contains the cause; shall then the King's Warrant otherwise do it, without containing the cause? that his Judge upon the Return thereof, may likewise judge of the same.
'But I will conclude with that which I find reported of Sir John Davis, who was the King's Serjeant, and so, by the duty of his Place, would no doubt maintain, to his uttermost, the Prerogatives of the King his Royal Master: And yet it was by him thus said in those Reports of his, upon the Case of Tavistry-Customs, That the King of England always have had a Monarchy Royal, and not a Monarchy Seignoral: where, under the first, faith he, The Subjects are Freemen, and have Propriety in their Goods and Free-hold, and inheritance in their Lands: but under the latter, they are as Villains and Slaves, and have propriety in nothing. And therefore, said he, When a Royal Monarch makes a new Conquest, yet if he receives any of the Nations antient Inhabitants into his protection, they and their heirs after them shall enjoy their Lands and Liberties according to the Law. And there he vouched this President and Judgment following, given before William the Conqueror; viz. That one Sherborn, a Saxon, at the time of the Conquest, being owner of a Castle and Lands in Norfolk, the Conqueror gave the same to one Warren, a Norman; and Sherborn dying, the heir claiming the same by descent, according to the Law; it was before the Conqueror himself adjudged for the heir, and that the gift thereof by the Conqueror was void.
Upon this and other Arguments made in this case of the Habeas Corpus, the House referred the whole business to a Committee, to examine all the Proceedings: Concerning which, Mr. Selden afterwards made report to the House, That Mr. Waterhouse, a Clerk in the Crown Office, being examined before the Committee, did confess, That by direction from Sir Robert Heath, the King's Attorney-General, he did write the draught of a Judgment in the Case before-mention'd, which was delivered to Mr. Attorney. And Mr. Keeling being examined before the Committee, did confess, That after Mich. Term last,the Attorney-General wished him to make a special entry of the Habeas Corpus: To which he answered, He knew no special entry in those cases, but only a Remittitur: But said to Mr. Attorney, That if he pleased to draw one, and the Court afterwards assentto it, he would then enter it. The Attorney did accordingly make a draught, and the Copy thereof Mr. Keeling produced to the Committee. And further said, Thathe carried this draught to the Judges, but they would not assent to a special Entry: Nevertheless, the Attorney General divers times sent to him, and told him there was no remedy, but he must enter it. Yet a week before the Parliament, the Attorney General called for the draught again, which accordingly he gave unto him, and never heard of it more.
Sir Robert Philips, upon this report, gave his opinion, 'That this intended Judgment in the Habeas Corpus, was a draught made by some man that desired to strike us all from Liberties: But the Judges justly re fused it; but if the Judges did intend it, we sit not here (said he) to answer the trust we are sent for, if we present not this matter to his Majesty. Let this business be further searched into, and see how this Judgment lies against us, and what the Judges do say concerning the same.
Sir Edw. Cook proceeded, and said 'This draught of the Judgment will sting us, quia nulla causa suit ostenta, being committed by command of the King, therefore he must not be bailed: What is this, but to declare upon Record, that any Subject, committed by such absolute command, may be detained in Prison for ever? What doth this tend to, but the utter subversion of the choice Liberty and Right belonging to every free-born Subject of this Kingdom? I fear, were it not for this Parliament, that followed so close, after that form of Judgment was drawn up, there would have been hard putting to have had it entred: But a Parliament brings Judges, Officers, and all men in good order.
The Commons afterwards upon further debates of this matter, desired, That the Judges of the King's Bench might declare themselves concerning this business; which was done accordingly: and though it be a little out of time, yet, for coherence sake, we bring it in here.
'My Lords, We are, by your appointment, here ready to clear any Asperosin of the House of Commons in their late Presentment upon the King's Bench, that the Subject was wounded in the Judgment there lately given. If such a thing were, my Lords, your Lordships, not they, have the power to question and judge the same. But, my Lords, I say, there was no Judgment given, whereby either the Prerogative might be enlarged, or the Right of the Subject trenched upon. It is true, my Lords, in Mich. Term last, four Gentlemen petitioned for a Habeas Corpus, which they obtained, and Counsel was assigned unto them; the Report was, 'Perspeciale mandatum Domini Regis, which likewise was made known to us under the hands of Eighteen Privy-Counsellers. Now, my Lords, if we had delivered them presently upon this, it must have been, because the King did not shew cause wherein we should have judged the King had done wrong, and this is beyond our knowledge, for he might have committed them for other matters than we could have imagined; but they might say thus, They might have been kept in Prison all their days: I answer, No, but we did remit them, that we might better advise of the matter; and they the next day might have had a new Writ, if they had pleased. But they say, we ought not to have denied Bail: I answer, If we had done so, it must needs have reflected upon the King, that he had unjustly imprisoned them: And it appears in Dyer, a. Eliz. that divers Gentlemen being committed, and requiring Habeas Corpus, some were bailed, others remitted: whereby it appears, much is left to the discretion of the Judges.
'For that which troubleth so much, Remittitur quousque; This, my Lords, was only (as I said before) to take time what to do: and whereas they will have a difference between Remittitur and Remittitur quousq; My Lords, I confess I can find none; but these are new inventions to trouble old Records. And herein, my Lords, we have dealtwith knowledge & understanding; for had we given a Judgment, the Party must thereupon have rested; every Judgment must come to an issue in matter, in fact, or demur in point of Law; here is neither, therefore no Judgment.
'For endeavouring to have a Judgment entred (it is true) Mr. Attorney pressed the same for his Majesty's Service; But we having sworn to do right between his Majesty and his Subjects, commanded the Clerk to make no Entry, but according to the old form; and the Rule was given by the Chief Justice alone. I have spent my time in this Court, and I speak confidently, I did never see nor know by any Record, that upon such a Return as this, a man was bailed, the King not first consulted with, in such a Case as this.
'The Commons House do not know what Letters and Commands we receive; for these remain in our Court, and are not viewed by them. For the rest of the matters presented by the House of Commons, they were not in agitation before us, whether the King may commit, and how long he may detain a man committed. Therefore having answered so much as concerneth us, I desire your Lordships good construction of what hath been said.
Judge Doderidge, concerning the same Subject, said, 'It is no more fit for a Judge to decline to give an account of his doings, than for a Christian of his Faith. God knoweth, I have endeavoured always to keep a good Conscience; for a troubled one, who can bear? The Kingdom holds of none but God; and Judgments do not pass privately in Chambers, but publickly in Courts, (where every one may hear) which causeth Judgment to be given with maturity. Your Lordships have heard the particulars given by my Brother. How that Counsel being assigned to those four Gentlemen in the latter end of Mich. Term, their Cause received hearing, and upon consideration of the Statutes and Records, we found some of them to be according to the good old Law of Magna Charta; but we thought that they did not come so close to this Case, as that Bail should be presently thereupon granted. My Lords, the Habeas Corpus consisteth of three parts; The Writ, the Return upon the Writ or Schedule, and the Entry or Rule reciting the Habeas Corpus and the Return, together with the Opinion of the Court, either a Remittitur, or a Traditur in Ballivum. In this Case a Remittitur was granted, which we did, that we might take better advisement upon the Case, and upon the Remittitur. My Lords, they might have had a new Writ the next day and I wish they had, because, it may be, they had seen more, and we had been eased of a great labour. And my Lords, when the Attorney upon the Remittitur, pressed an Entry, we all straitly charged the Clerk, that he should make no other Entry, than such as our Predecessors had usually made in like Cases. For the difference between Remittitur and Remittitur quousque, I could never yet find any; I have now fat in this Court Fifteen years, and I should know something: surely, if I had gone in a Mill so long, dust would cleave to my clothes. I am old, and have one foot in the Grave, therefore I will look to the better part as near as I can. But, Omniahahere in memoria, & in nullo errare, Divinum potius est quam humanum
'The late Judgment (said he) which lies in Bar, is only an Award, and no Judgment; and in the L.Chief Justice his Argument, there was no word spoken, that the King might commit or detain without cause.
'For the King to commit a man, is indignum Regi: Mercy and Honour flow immediately from the King, Judgment and Justice are his too, but they flow from his Ministers; the Sword is carried before him, but the Sceptre in his hands'. These are true Emblems of a good King.
'The Law admits not the King's power of detaining in Prison at pleasure. In antient times Prisons were but pro custodia, carceres non ad p$aenam, sed ad custodiam. Admit the King may commit a man, yet to detain him as long as he pleaseth, is dangerous, and then a man shall be punished before his offence: Imprisonment is a masseration of the body, and horrour to the mind; it is vita pejor morte.
Mr. Selden last of all produced the Statutes, Presidents, and Book-Cases, which were expressed in point to the Question in hand; and the House commanded that Case in the Lord Chief Justice Anderson's Book, all of his own hand writing, to be openly read.
And for the Presidents cited by the King's Council, in the 34 year of the Queen, as the Opinion of all the Judges; certainly there was a great mistake in it, and the mistake was the greater, when it passed as current by the Judges of the King's Bench, in the last Case of the Habeas Corpus. And that the truth of the Opinion may clearly appear, let us read the words out of the Lord Chief Justice Anderson's Report, out of the Book written with his own hand, which will contradict all those Apocrypha Reports that go upon the Case: The words of the Report were these.
Divers persons fueront committes a several temps a several prysons sur pleasure sans bon cause parte de quex estiant amesnes en Banckle Roy. Et parte en leCommune banck fuerunt accordant a le ley de la terre mise a large & discharge de la imprisonment, pur que aucuns grants fueront ostendus & procure un commandment a les Judges que ils ne fera ainsi apres. Ceo nient meens les Judges ne surcease mes per advise enter eux ils fe joint certain Articles le tenour de queux ensus, & deliver eux al seigneurs Chancelor & Treasurer & eux subscribe avec toutes lour mainies, les Articles sont come erisnoint.
We her Majesty's Justices of both Benches, and Barons of the Exchequer, desire your Lordships, that by some good means some order may be taken, that her Highness Subjects may not be committed or detain'd in prison by commandment of any Nobleman or Counsellor against the Laws of the Realm; either else to help us to have access to her Majesty, to the end to become Suitors to her for the same: for divers have been imprisoned for suing ordinary Actions and Suits at the Common-Law, until they have been constrained to leave the same against their wills, and put the same to order, albeit Judgment and Execution have been had therein, to their great losses and griefs: for the aid of which persons, her Majesty's Writs have sundry times been directed to sundry persons, having the custody of such persons unlawfully imprisoned, upon which Writs, no good or lawful cause of imprisonment hath been returned or certified: Whereupon, according to the Laws, they have been discharged of their imprisonment; some of which persons so delivered, have been again committed to prison in secret places, and not to any common or ordinary Prison, or lawful Officer or Sheriff, or other lawfully authorised, to have or keep a Goal; so that upon complaint made for their delivery, the Queens Courts cannot tell to whom to direct her Majesty's Writs; and by this means Justice cannot be done. And moreover, divers Officers and Serjeans of London have been many times committed to Prison for lawful executing of her Majesty's Writs, sued forth of her Majesty's Court at Westminster, and thereby her Majesty's Subjects and Officers are so terrified, that they dare not sue or execute her Majesty's Laws, her Writs and Commandments: Divers others have been sent for by Pursevants, and brought to London from their dwellings, and by unlawful imprisonment have been constrained, not only to withdraw their lawful Suits, but have also been compelled to pay the Pursevants, so bringing such persons great sums of money. All which, upon Complaint, the Judges are bound by Office and Oath to relieve and help, by anc according to her Majesty's Laws. And where it pleaseth your Lordships to will divers of us to set down in what Cases a Prisoner sent to custody by her Majesty or her Council, are to be detained in Prison, and not to be delivered by her Majesty's Court or Judges: We think, That if any person be committed by her Majesty's command, from her Person, or by Order from the Council-board; and if any one or two of her Council commit one for high Treason, such persons so in the Cases before committed, may not be delivered by any of her Courts, without due trial by the Law, and Judgment of acquittal had. Nevertheless the Judges may awaid the Queen's Writ, to bring the bodies of such Prisoners before them; and if upon return thereof, the causes of their Commitment be certified to the Judges, as it ought to be, then the Judges in the Cases before, ought not to deliver him, but to remand the Prisoner to the place from whence he came, which cannot conveniently be done, unless notice of the cause in general, or else in special, be given to the Keeper or Goaler that shall have the custody of such a Prisoner. All the Judges and Barons did subscribe their Names to these Articles, Ter.Pasch$ae 34 Eliz. and delivered one to the L. Chancellor, and another to the L. Treasurer: After which time there did follow more quietness than before, in the Cause before-mentioned.
After the reading of this Report, Sir Edw. Cook said, 'That of my own knowledge this Book was written with my L.Anderson's own hand; it is no flying report of a young Student. I was Solicitor then, and Treasurer Burley was as much against Commitment as any of this Kingdom; It was the White Staves that made this stir. Let us draw towards a conclusion: The Question is, Whether a Freeman can be imprisoned by the King, without setting down the cause? I leave it as bareage Æsop's Crow; they that argue against it, Humores moti & non remoti corpus destruunt. It is a Maxim, The Common-law hath admeasured the King's Prerogative, that in no case it can prejudice the Inheritance of the Subjects; had the Law given the Prerogative to that which is taken, it would have set some time to it, else mark what would follow. I shall have an Estate of Inheritance for life, or for years in my Land, or propriety in my Goods, and I shall be a Tenant at will for my liberty: I shall have propriety in my own house, and not liberty in my person, Perspicuè veranon sunt probanda. The King hath distributed his Judicial Power to Courts of Justice, and to Ministers of Justice; it is too low for so great a Monarch as the King is, to commit men to Prison; and it is against Law, that men should be committed, and no cause shewed. I would not speak this, but that I hope my gracious King will hear of it; yet it is not I Edw.Cook that speaks it, but the Records that speak it; we have a National appropriate Law to this Nation, diversis ab orbe Britannis. I will conclude with the Acts of the Apostles, chap. 25. It is against reason to send a man to prison, and not to shew the cause. It is now time to go to the Question.
- I. That no Freeman ought to be detained or kept in prison, or otherwise restrained by the command of the King or Privy-Council, or any other, unless some cause of the commitment, detainer, or restraint be expressed, for which by Law he ought to be committed, detained, or restrained.
- II. That the Writ of Habeas Corpus. may not be denied, but ought to be granted to every man that is committed or detained in prison, or otherwise restrained, though it be by the command of the King, the Privy-Council, or any other, he praying the same.
- III. That if a Freeman be committed or detained in prison, or otherwise restrained by the command of the King, the Privy-Council, or any other, no cause of such Commitment, Detainer, or Restraint being expressed, for which by Law he ought to be committed, detained, or restrained, and the same be returned upon a Habeas corpus, granted for the said Party, then he ought to be delivered or bailed.
That it is the antient and undubitable right of every Freeman, that he hath a full and absolute property in his Goods and Estate; that no Tax, Tallage, Loan, Benevolence, or other like Charge ought to be commanded, or levied by the King, or any of his Ministers, without common consent by Act of Parliament.
- 1. To furnish with Men and Victuals 30 Ships, to guard the Narrow Seas, and along the Coasts.
- 2. To set out Ten other Ships for the relief of the Town of Rochel.
- 3. To set out Ten other Ships for the preservation of the Elbe, the Sound, and Baltick-Sea.
- 4. To levy Arms, Cloth, Victual, Pay, and transport an Army of 10000 Horse and 10000 Foot, for Foreign Service.
- 5. To pay and supply 6000 more, for the service of Denmark.
- 6. To supply the Forts of the Office of Ordnance.
- 7. To supply the Stores of the Navy.
- 8. To build Twenty Ships yearly for the increase of the Navy.
- 9. To repair the Forts within the Land.
- 10. To pay the Arrears of the Office of Ordnance.
- 11. To pay the Arrears of the Victuallers Offiice.
- 12. To pay the Arrear of the Treasure of the Navy.
- 13. To pay the Arrears due for the freight of divers Merchant Ships imployed in his Majesty's Service.
- 14. To provide a Magazine for Victuals for Land and Sea-service.
'In the first place (he said) we acknowledge all due honour, both un to the Reverend Fathers of the Church, and to our Noble Lords, in that ye have shined before us as worthy Lights, in the encouragement and maintenance of true Religion, being the true support of all Dignities and Honours. And this forwardness of you is the more remarkable, when that Viperous Generation, as your Lordships justly styled them, do, at ease, with tooth and nail, essay to rend the bowels of their Mother. Give me leave to tell you what I know, That these now both vaunt at home, and write to their Friends abroad, They hope all will be well, and doubt not to prevail, and to win ground upon us.
'And a little to wake the Zeal and Care of our Learned and Grave Fathers, it is fit that they take notice of that Hierarchy, which is already established, in competition with their Lordships; for they have a Bishop consecrated by the Pope; the Bishop hath his Subalternate Officers of all kinds, as Vicars-General, Arch-Deacons, Rural-Deans, Apparators, and such like; Neither are these Nominal or Titular Officers alone but they all execute their Jurisdictions, and make their ordinary Visitations through the Kingdom, keep Courts, and determine Ecclesiastical Causes. And, which is an Argument of more consequence, they keep ordinary intelligence by their Agents in Rome, and hold correspondence with the Nuntio's and Cardinals, both at Bruxels, and in France.
'Neither are the Seculars alone grown to this heighth, but the Regulars are more active and dangerous, and have taken deep root; they have already planted their Societies and Colledges of both Sexes, they have settled Revenues, Houses, Libraries, Vestments, and all other necessary provisions to travel or stay at home: Nay, even at this time they intend to hold a concurrent Assembly with this Parliament.
'But now since his Sacred Majesty hath extended his Royal Arm, and since the Lords of his Council have, by their Authority, caused this Nest of Wasps to be digged out of the Earth, and their Convocations to be scattered; and since your Lordships join in courage and resolution, at least to reduce this people to their lawful restraint, that they may do no more hurt, we conceive great hope and comfort, that the Almighty God will, from henceforth, prosper our endeavours both at home and abroad.
'But now, my Lords, to come to the chief Errand of this our Meeting, which is to make known to you the Approbation of our House of that Petition to his Majesty, wherein you are pleased to request our concurrence. The House hath taken it into ferious consideration, and from the beginning to the end approve of every word, and much commend your happy Pen; only we are required to present unto you a few Additions, whereby, we conceive, the Petition may be made more agreeable to the Statutes which are desired to be put in execution, and to a former ☆ Petition granted by his Majesty, Recorded in both Houses confirmed under the Broad-Seal of England, and punished in all our Courts of ordinary Justice.
'But these things we propound, not as our resolutions or as matters to raise debate or dispute, but commend them only as our advice and desire, being ready notwithstanding to join with your Lordships in the Petition, as now it is, if your Lordships shall not find this Reason to be of weight.