Historical Collections of Private Passages of State: Volume 1, 1618-29. Originally published by D Browne, London, 1721.
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This being agreed unto, on Monday the 31 of March, the aforesaid Petition was presented to his Majesty by both Houses; at the delivery whereof, the Lord Keeper spake as followeth.
The Lord Keeper's Speech at the presenting a Petition from both Houses against Recusants.
Most Gracious Sovereign,
'The Lords Spiritual and Temporal, and Commons in this present Parliament assembled, out of the due care of the Glory of Almighty God, and of the Honour and Safety of your Majesty, do, with all humbleness, and with one unanimous consent, present to your Royal Hands, the most Loyal desires of all their hearts; which is set down in a dutiful Petition, which is, to quicken the Laws against the Perturbers of the Peace of all States: We cannot, nor do not forget your Majesty's most gracious Acts and Answers on the like Petition; they are visible to the World, to your Majesty's honour and comfort: We bend our knees and hearts, blessing God and your Majesty therefore; yet let it not seem needless, that we repair again to your Majesty: The Husbandman knows, that Weeds are not destroyed at one weeding: These are growing Evils, they are Weeds of a spreading nature: And we that come from all parts, do think it our duty to tell your Majesty, that God's Vineyard is not yet cleansed. And God himself requires, that we pray to him often, even for what he means and promiseth to bestow on us. But my message comes from the Pen of both Houses; and therefore I humbly beseech your Majesty, to lend a gracious ear to hear me read the Petition.
After the reading thereof, his Majesty made this short speech.
The King's Answer to the Petition.
My Lords and Gentlemen,
'I Do very well approve the method of your proceedings in this Parliament, A Jove principium; hoping that the rest of your Consultations will succeed the happier. And I like the Preamble of my Lord Keeper, otherwise I should have a little suspected, that you had thought me not so careful of Religion as I have, and ever shall be, wherein I am as forward as you can desire. And for the Petition, I answer first in general, That I like it well, and will use these as well as other means for the maintenance and propagation of that Religion wherein I have lived, and do resolve to die. But for the particulars, you shall receive a more full Answer hereafter. And now will I only add this, That as we pray to God to help us, so we must help ourselves: For we can have no assurance of his assistance, if we do lie in bed, and only pray, without using other means. And therefore I must remember you, that if we do not make provision speedily, we shall not be able to put one Ship to Sea this year. Verbum sapienti sat est.
Afterwards the Lord Keeper fignified unto the House, That his Majesty had now given his answer unto the Petition exhibited by both Houses against Recusants, and had commanded his Lordship to read the fame answer in this House; and Mr. Secretary to read it in the House of Commons. Whereupon the Clerk read the first Article of the said Petition, and the Lord Keeper read his Majesty's Answer unto the same, and to each Article thereof.
The which Petition, with the Answers, follow, in hœc verba.
Most Gracious Sovereign,
We pout most loyal and obedient Subjects, the Lords Spiritual and Temporal, and Commons in Parliament assembled, having, to our singular comfort, obtained pour majesty's pious and gracious assent for a publick fast, to appeale the wrath of almighty God kindled against us, and to present those grievous Judgments, which do apparentiy press upon us, do, in all humidity, present unto pour Sacred Majesty all possible thanks for the same. And because the publick and visible fins of the Kingdom, are the undoubted causes of those visible Evils that are fain upon us; amongst which fins, (as is apparent by the word of God) Idolatry and Superfition are the most heinous and crying fins; to the end that we may constantly hope for the blessing of God to descend upon this our publick humilitation, by abandoning those fins which do make a wall of separation betwirt God and us.
We most humbly and ardently beg at the hands of your most Sacred Daiesty, That pour Dajesty will be pleased to give continual life and motion to all those Laws, that stand in force against Jesuites, Seminary Dijests, and all that have taken Divers, by Authority of the See of Rome, by creating a more due and serious erecution of the same: Amongst which number, those that have highly abused your Majesty's clemency, by returning into the kingdom after their banishment, contrary to your highness ermeis Proclamation, we humbly desire may be left to the severity of your Laws, without admititng of any mediation on intercession for them. And that such of pour Majesty's unsound and ill-affeared Subjects, as do receive, harbour, or conceal any of their viperous Generation, may without delay, suffer such Penalties and Punishments, as the Laws justly impose upon them.
His Majesty's Answer unto the first Article of this Petition.
To the first Point his Majesty answereth, That he will, according to your desire, give both life and motion to the Laws that stand in force against Jesuites, Seminary Priests, and all that have taken Orders, by Authority of the See of Rome: and to that end his Majesty will give strict order to all his Ministers, for the discovering and apprehending of them, and so leave them, being apprehended, to the trial of the Law. And in case, after trial, there shall be cause to respit execution of any of them, yet they shall be committed (according to the example of the best times) to the Castle of Wisbitch, and there be safely kept from exercising their Functions, or spreading their Superstitious and dangerous Doctrine; and the Receivers and Abettors, they shall be left to the Law.
That pour Majesty would be pleased to command a surer and strait watch to be kept in and over pour Majesty's Ports and havens, and to commit the care and charge of searching of Ships for the discovery and apprehension, as well of jesuites and Seminary Priests brought in, as of Children and young Students, sent over ground the Ses, to suck in the prysin of Rebellion and Superstttost, unto men of approved ability and Religion: And such as shall be convided to have contrived or combined in the bringing in the one, or conveying of the other, that the Laws may pass upon them with speedy execution.
His Majesty's Answer to the second Article.
To the second Article; His Majesty granteth all that is in this Article; and to this end will give Order to the Lord Treasurer, Lord Admiral and Lord Warden of the Cinque Ports, that in their several places they be careful to see this Article fully executed, giving strict charge to all such as have Place and Authority under them, to use all diligence therein. And his Majesty requireth them, and all other his Officers and Ministers, to have a vigilant eye upon such as dwell in dangerous places of advantage or opportunity, for receiving or transporting of any such as are here mentioned. And his Majesty will take it for good Service, if any will give knowledge of any such as have connived or combined, or shall connive or combine, as is mentioned in this Article, that Justice may be strictly done upon them.
That considering those dreadful dangers (never to be forgotten) which did involve pour Majesty's sacred Person, and the whose representative body of your Majesty's kingdom, plotted and framed by the free and common access of Poptsh Recusants to the City of London, and to pour Majesty's Court, pour Majesty would be graciously pleased to give speedy command for the present putting in practice those Laws that prohibit all Popish Recusants to come to the Court, oir within ten Diles oif the City of London; as also those Laws, that confine them to the distance of five miles from their dwelling houses; and that such by past Licenses not warranted by Law, as have been granted unto them for their repair to the City of London may be discharged and annusied.
His Majesty's Answer to the third Article.
To the third; His Majesty will take Order to restrain the recourse of Recusants to the Court; and also for the other points in this Article his Majesty is well pleased that the Laws be duly executed, and that all unlawful Licenses be annulled and discharged.
That whereas it is more than probably conceived, that infinite sums of moneys have within these two or three pears last past been ertraded out of the Recusants within the kingdom by colour of composition, and a small proportion of the same returned untoi pour Majesty's coffers, not only to the sudden enriching of private persons, but to the emboloning of Romish Recusants to entertain Dassing Priests into their private boules, and to exercise all their Dimique Rites of their groiss superfition, without fear of control, amounting (as by their daily practice and attentuation we may conceive) to the nature of a concealed Coleration; your majesty would be graciously pleased to entertain this particular more nearly into your Princely wisdom and consideration; and to dissolve this mystery of Iniquity patched up of colourable Leases, Contracts, and Preconveyances, being but Dasks on the one part of fraud to deceive your Majesty and States, on the other part for private men to accomplish their corrupt ends.
His Majesty's Answer to the fourth Article.
To the fourth Article; his Majesty is most willing to punish for the time past, and prevent for the future any of the deceits and abuses mentioned in this Article; and will account it a good service in any, that will inform Himself, his Privy Council, Officers of his Revenues, Judges, or learned Council, of any thing that may reveal this mystery of Iniquity. And his Majesty doth strictly command every of them, to whom such information shall be brought, that they suffer not the same to die, but do their utmost endeavour to effect a clear discovery, and bring the offenders to punishment. And to the intent no concealed toleration may be effected, his Majesty leaves the Laws to their course.
That as the Persons of Ambassadors from foreign Princes, and their houses, be free for the exercises of their own Religion, so their houses may not be made free Chappels and Sanduaries untoi pour Majesty's Subjects, popiship affected, to hear Dass, and to participate in all other Rittes and Ceremonies of that Superstition, to the great offence of Almighty God, and scandal of your Majesty's People loyalty and religiously afforded: that either the concourse of Recusants to such places may be restrained or at least such a vigilant watch set upon them, at their return from those places, as they may be apprehended, and severely proceeded withal, Ut quipa la m in luce peccant in luce puniantur.
His Majesty's Answer to the fifth Article.
To the fifth; his Majesty is well pleased to prohibit and restrain their coming and resort to the Houses of Ambassadors, and will command a vigilant watch to be set for their taking and punishing, as is desired.
That no place of Authority and Command, within any the Counties of this pour Majesty's Kingdom, or any Ships of your Majesty's of which shall be imployed in pour Majesty's Service, be committed to Popish Recusants, or to Dott-communicants, by the space of a pear past or to any such persons as according to direction of former ads of State are justly to be suspected, as the place and Authority of Lords of Lieutenants, Deputy Lieutenants, Justices of Peace, or Captains, or other Officers or Ministers mentioned in the Statute made in the third pear of the Reign of pour Father of blessed Memory: and that such as by Connivance have crept into such places, may by pour Majesty's Royal Command be discharged of the same.
His Majesty's Answer to the sixth Article.
To the sixth; his Majesty is perswaded that this Article is already observed with good care; nevertheless, for the avoiding (as much as may be) all errors and escapes in that kind, his Majesty will give charge to the Lord Keeper, that at the next Term he call unto him all the Judges, and take Information from them of the state of their several Circuits, if any such (as are mentioned in this Article) be in the commission of the Peace, that due reformation may be made thereof; And will likewise give order to the Lord Admiral, and such others to whom it shall appertain, to make diligent enquiry and certificate to his Majesty, if any such be in place of Authority and Command in his Ships or Service.
That all your Majesty's Judges, Justices and Ministers of Justice, unto whole care and trust, execution (which is the life of your Majesty's Laws) is committed, may, by your Majesty's Proclamation, not only be commanded to put in speedy execution those Laws which stand in force against Jesuites, Seminary Priests, and Popish Recusants, but tht pour Majesty would be further pleased to command the said Judges, and Justices of Assize, to give a true and strict account of their proceedings, at their returns out of their Circuits, unto the Lord Keeper, by the Lord Keeper to the presented unto pour Majesty.
His Majesty's Answer to the Seventh Article.
To the Seventh his Majesty doth fully grant it.
Add for a fair and clear eradication of all Popery for the future, and for the breeding and nursing up of a holy Generation, and a peculiar People, sanctified unto the true Worship of Almighty God, that until a Provisional Law may be made for the training and counseling of the Children of Popish Recusants, in the Grounds and Principles of our holy Religion, which we conceive will be of more power and force to unite pour People unto you in fasteners of Love, Religion, and loyal Obedience, than all Pecuniory Dulas and Penalties that can posibly be devilled: pour Majesty would be pleased to take it into your own Pincely care and consideration, these our humblee petitions proceeding from hearts and affections Loyalkty and Religiously devoted to God and your Majesty's Service, and to the Safety of your Majesty's Sacred Person, we most zealously present to your Princely wisdom, crabing your Majesty's chearful and gracious approbation.
His Majesty's Answer to the Eighth Article.
To the Eighth, his Majesty doth well approve it, as a matter of necessary consideration; and the Parliament now sitting, he recommendeth to both Houses the preparation of a fitting Law to that effect. And his Majesty doth further declare, that the mildness that hath been used towards those of the Popish Religion, hath been upon hope, that Forreign Princes thereby might be induced to use moderation towards their Subjects of the Reform's Religion; but not finding that good effect which was expected, His Majesty resolveth, unless he shall very speedily see better fruits, to add a further degree of severity, to that which in that Petition is desired.
Debates touching his Majesty's Propositions.
On Wednesday the 2. of April, the Propositions sent from the King, were mentioned, and several Gentlemen expressed themselves severally on that Subject.
Sir Francis Seimor.
'It is said, that the greatest grievance is want of Supply; but I hold it a greater grievance that his Majesty is brought into those necessities, especially considering the Supplies that of late have been given to the King, two Subsidies of Parliament, besides Privy-Seals, the late Loan, whereby five Subsidies were forcibly and unadvisedly taken, and we have yet purchased to our selves nothing by all these but our own dishonour, we have drawn and provok'd two powerful Enemies upon us; it is not then what the Subjects do give, unless his Majesty employ men of integrity and experience, otherwise all that we give will be cast into a bottomless Bag.
Sir. Nath. Rich.
'Some Propositions we shall not meddle with, as a Sovereign Army to be transported, we are not fit for that yet, but we will hot reject it, for great Princes, who give out Rumors of raising great Armies, do put their Enemies to great fears; then the defence of our Coasts, nothing is more necessary; but the Bill of Poundage is for that particular Supply. And how far it may prejudice us for a future Precedent, to give other Supply, let us be advised.
'Mr. Secretary Cook, observing a distinction made upon the Propositions, as if some of them were to be omitted; I know, (said he) you will do it upon deliberation; some there are not possible to be omitted, as the guarding of the Seas, defence of the Elbe, Rochel, and those draw on all the rest: Ships must have Men and Munition, and we cannot divide any of these. This House is tender of the Countrey; the King will not lay a burthen that cannot be born: We may supply his Majesty without this, give we now what we please, the King may make use of it before the People are able to pay; and we shall not only make his Majesty subsist, but advance his repuration in the World, by the unity of his People, more than by any Treasure.
Sir Jo. Elliot.
'In deed there may be some necessity for a War offensive, but looking on one late disaster, I tremble to think of sending more abroad.
'Let us consider those two great Undertakings at Cales and Rhee; at Cales, that was so gloriously pretended, where our men arrived and found a Conquest ready, namely, the Spanish Ships, a satisfaction sufficient and fit for us, and this confessed by some then employed, and never but granted by all, that it was feasible and easy; why came this to nothing? After that opportunity lost, when the whole Army was landed, with destruction of some of our Men; Why was nothing done? If nothing was intended, why were they landed, and why were they shipt again? For Rhee's Voyage, was not the whole action carried against the judgment of the best Commander? Was not the Army landed? Not to mention the leaving of the Wines, nor touch the wonder that C$aesar never knew, the enriching of the Enemy by courtesies. Consider what a case we now are in, if on the like occasion, or with the like Instruments, we shall again adventure another Expedition. It was ever the wisdom of our Ancestors here, to leave Foreign Wars wholly to the State, and not to meddle with them.
Sir Edw. Cook.
'Sir Edw. Cook. When poor England stood alone, and had not the access of another Kingdom, and yet had more and as potent Enemies as now it hath, yet the King of England prevailed.
'In the Parliament-Roll, in the 42 year of Edw. 3. the King and the Parliament gave God thanks for his Victory against the Kings of Scotland and France; he had them both in Windsor-Castle as Prisoners. What was the reason of that Conquest? four reasons were given. I. The King was assisted by good Counsel. 2. There were valiant men. 3. They were timely supplied. 4. good Imployment.
'3 R. 2. The King was invironed with Flemins, Scots, and French; and the King of England prevailed.
'13 R. 2. The King was invironed with Spaniards, Scots, and French; and the King of England prevailed.
'17 R. 2. Wars were in Ireland and Scotand, and yet the King of England prevailed, and thanks were given to God here; and I hope I shall live to give God thanks for our King's Victories.
'7 H. 4. One or two great men about the King so mewed him up, that he took no other advice but from them; whereupon the Chancellor took this Text, and Theme in his Speech at the Parliament, Multorumconsilia requiruntur in magnis, in bello qui maxime timent sunt in maximis periculis. Let us give, and not be afraid of our Enemies; let us supply bountifully, chearfully, and speedily, but enter not into particulars. Solomon's Rule is, Qui repetit separat, nay, separat f$oederatos. We are united in duty, &c. to the King, the King hath fourscore thousand pounds a year for the Navy, and to scoure the Narrow Seas; it hath been taken, and we are now to give it; and shall we now give more to guard the Seas? besides, when that is taken of our gift, it may be diverted another way.
'It shall never be said we deny all supply; I think my self bound, where there is commune periculum, there must be commune auxilium.
Sir Thomas Wentworth,
'I Cannot forget that duty I owe to my Countrey, and unless we be secured against our Liberties, we cannot give. I speak not this to make diversions, but to the end that giving I may give chearfully. As for the Propositions tobe considered of, I incline to decline them, and to look upon the state of our Countrey, whether it be fit to give or no. Are we come to an end for our Countrey's Liberties? have we trenched on the Rates of the Deputy-Lieutenants? are we secured for time future?
Sir Henry Martin.
'We all desire Remedies for our Grievances, and without them we shall neither be willing nor able to give; for my part, I heartily desire remedy, but which is the best and wisest way, that is the question: As we have made some progress in our Grievances, so let us now go on to Supply. There is a Proverb, Non bis ad idem. Dash not theCommon-wealth twice against one Rock. We have Grievances, we must be eased of them; who shall ease us? No Nation hath a People more loving to the King than we; but let the King think it, and believe it, there is a distance betwixt him and us; before we can have his heart, we must remove it. Our disease is not so great, but that it may be cured, it is the King's Evil which must be cured with Gold. Let us imitate Jacob, who wrestled with the Angel, and would not let him go; I would we could wrestle with the King in duty and love, and not to let him go in this Parliament, till he comply with us. We must take heed of too much repetition, and over-beating of Grievances, it is dangerous, and it may make a further Separation: He that talks too much of his Grievances, makes the Party that is the cause of it make an Apology, and to justify it, and that is dangerous. Let us do as Poets in a Tragedy, that sometimes have Comical passages, and so a generous mind will sink presently. Sure a due presentation of such Grievances to such a King with moderation, will take place with him. In all deliberations, go the safest way; the old way I have heard is first to remove Grievances; we must not tie and bind ourselves by all that was done before. I have gone over the Thames in former times on foot, when it was all an Ice, but that is no argument to perswade me to do the like now, because I did so once.
The House waves, &c.
The House waving the Debate for the Propositions, proceeded with Grievances by Consinement, and Designation of Foreign employment; in which points, several Gentlemen delivered their opinion.
'Consinement is different from Imprisonment, and it is against the Law that any should be confined, either to his house, or else-where: I know not what you can call a punishment, but there is some ground of it, or mention thereof in Acts of Parliament, Law-Books, or Records; but for this of Confinement, I find none: Indeed Jews have been confined informer times to certain places, as here in London, to the Old Jury: The Civilians have perpetual Prisons, and coercive Prisons, upon Judgments in Court, Career domesticus is a Confinment for madmen.
Sir. T. Hobby.
'I Was employed in 88. in that Service, it was then thought fit that Recusants should be confined in strong places, but it was not held legal, and when the Navy was dispersed, they were set at Liberty; and the Parliament petitioned the Queen for a Law, to warrant the Confinement: Hereupon it was resolved, That no Freeman ought to be consined by any command of the King or Privy-Council, or any other, unless it be by Act of Parliament, or by other due course or warrant of Law. And then the House proceeded to the Debate, concerning Designation to Foreign Imployment.
Sir Peter Hayman about Foreign imployment.
Touching Designation to Foreign Imployment, Sir Peter Hayman opened his own Case: 'I have forgot my imployment unto the Palatinate, I was called before the Lords of the Council, for what I know not, I heard it was for not lending on a Privy Seal. I told them, if they will take my Estate, let them, I will give it up, lend I will not. When I was before the Lords of the Council, they laid to my charge my unwillingness to serve the King; I said, I had my Life and my Estate to serve my Country, and my Religion; They put upon me, if I did not pay, I should be put upon an employment of Service. I was willing. After ten weeks waiting, they told me I was to go with a Lord into the Palatinate, and that I should have employment there, and means besitting. I told them, I was a Subject, and desired means. Some put on very eagerly, some dealt nobly; they said, I must go on my own purse: I told them, Nemo militat suis expensis. Some told me, I must go; I began to think, What, must I? none were ever sent out in that kind. Lawyers told me, I could not be so sent. Having that assurance, I demanded means, and was resolv'd not to stir upon those terms, and in silence and duty I denied. Upon this, they having given me a command to go, after some twelve days they told me, they would not send me as a Soldier, but to attend on an Ambassador. I knew that stone would hit me. I settled my troubled Estate, and addressed my self to that Service.
'This is a great point, that much concerns the Commonwealth, if the King cannot command a Subject to his necessary Service; and on the other side, it will be little less than an honourable banishment to the Subject, if he may. Our Books say, the King cannot compel any to go out of the Realm, and an Action brought against him, he cannot plead in Bar, that he is by command from the King in Foreign Service, but the King may give him his protection. 5 E. 3. N. 9. in the Parliament-Roll there was an Ordinance, whereby the King had power to send some to Ireland, it is ordained, that such Sages of the Law and Soldiers, where need shall be, though they refuse to go, and excuse themselves, if their excuses be not reasonable, the King may do to them according to right and reason; If the King by Law could do this of himself, and send them to Ireland his own Dominion, he would never have taken power from his Parliament; and if men do not according to that Law there is no imprisonment prescribed.
Sir E. Cook.
'No restraint, be it never so little, but is Imprisonment, and foreign imployment is a kind of honourable Banishment: l my self was designed to go to Ireland, I was willing to go, and hoped if I had gone, to have found some Mompessons there: There is difference when the Party is the King's servant, and when not. 46 E. 3. this was the time when the Law was in its height: Sir Richard Pembridge was a Baron, and the King's Servant, and Warden of the Cinque-Ports, he was not committed, but the King was highly offended, and having Offices and Fees and Lands pro servitio suo impenso, the King seized his Lands and Offices: I went to the Parliament Roll, 47 E. 3. where I found another president for foreign imployment; they that have Offices pro consilio or servitio impenso, if they refuse, those Lands and Offices so given are seized, but no commitment.
Sir Thomas Wentworth.
'If any man owes a man a displeasure, and shall procure him to be put into foreign imployment, it will be a matter of high concernment to the Subject: We know the Honour and Justice of the King, but we know not what his Ministers or the mediation of Ambassadors may do to work their own wrath upon any man.
Sir John Elliot.
'If you grant this Liberty, what are you the better by other priviledges; what difference is there between imprisonment at home, and constrained imployment abroad; it is no less than a temporal Banishment, neither is it for his Majesty's service to constrain his Sub jects to imployment abroad: Honour and Reward invites them rather to seek it, but to be compelled, stands not with our Liberty.
These Debates, as to confinement, produced this resolution, that no Freeman ought to be confined by any command from the King, or Privy Council, or any other, unless it be by Act of Parliament, or by other due course or warrant of Law.
As for the matter of supply, the Debate was put off till Friday following.
Thursday, 3 of April, Mr. Secretary Cook brought the House this Message from the King.
The King sends a Message to the House by Secretary Cook, touching some words said to be spoken by the Duke.
'His Majesty having understood that some rumors were spread abroad of a sharp Message yesterday delivered by me, and of some malicious words, that the Duke should speak yesterday at the Council-Board, he commanded me to tell you of the malice of those false reports, for that nothing fell from the Duke or that Board, but what was for the good of this Assembly: He would have you observe the malice of those spirits that thus put in these Jealousies: Had the Duke so spoken, he should have contradicted himself, for all of us of the Council can tell, he was the first mover and perswader of this Assembly of Parliament to the King: Esteem of the King according to his actions, and not these tales; His Majesty takes notice of our purpose, that on Friday we will resolve upon Supply, which his Majesty graciously accepts of, and that our free gift without any condition should restify to the world, that we will be as far from incroaching upon his prerogative, as he will be to incroach upon our Liberties: and this shall we appear, when we present our Grievances to him, and then we shall know that he hath no intention to violate our Liberties, only let us not present them with an asperity of words; he counts it his greatest glory to be a King of Freemen, not of Villains: He thought to have delivered this Message himself, but that he feared it would take us too much time.
Then he added a word of his own, 'Yesterday after dinner we attended his Majesty, and he asked us what we had done: We said we had entred into the consideration of Supply, and that the final resolution was deferred till Friday; and this was done for just reasons, to join the business of his Majesty's and our Country's together, and this would further his Majesty, and it would give content to the Countrey, and that this union here might be spread abroad in the World. His Majesty answered, for God's sake, why should any hinder them in their Liberties? if they did not, I should think they dealt not faithfully with me. You may see a true Character of his Majesty's disposition: let us proceed with courage, and rest assured his Majesty will give great ear unto us, and let us all join to make a perfect union to win the King's heart; we shall find a gracious answer from the King, and a hearty co-operation from those that you think to be averse to us.
Debates on the Message.
Upon the delivery of this Message some stood up, and professed they never heard of any such sharp Message or words the day before, or that any was so bold as to interpose himself: They acknowledged his Majesty had put a threefold Obligation on them; First, in giving them satisfaction; Secondly in giving them assurance (which is a great Law) that he will protect and relieve them; Thirdly, in giving them advice as may befit the Gravity of that Assembly and his own Honour: So they concluded to carry themselves as their Progenitors before had done, who never were marked for stepping too far on the King's Prerogative, and they returned their humble thanks to his Majesty.
Friday 4. April, Secretary Cook brings another Message from the King.
The day following Mr. Secretary Cook delivered another Message from the King,viz. 'His Majesty hath again commanded me to put you in mind how the eyes and interest of the Christian world, are cast upon the good and evil success of this Assembly: He also graciously taketh notice of that which is in agitation amongst us, touching the freedom of our Persons, and propriety of our Goods; and that this particular care (which he no way misliketh) may not retard our resolution for the general good, he willeth us chearfully to proceed in both, and to express our readiness to supply his great occasions, upon assurance that we shall enjoy our Rights and Liberties, with as much freedom and security in his time as in any age heretofore under the best of our Kings: and whether you shall think fit to secure our selves herein, by way of Bill or otherwise so as it be provided for with due respect of his Honour and the publick good, whereof he doubteth not but that you will be careful, he promiseth and assureth you that he will give way unto it; and the more confidence you shall shew in his grace and goodness, the more you shall prevail to obtain your desires.
Upon this occasion Mr. Pym Spake.
Mr. Pym; Five Subsidies resolved on.
'That in business of weight, dispatch is better than discourse; We came not hither without all motives that can be towards his Majesty, had he never sent in his Message; We know the danger of our Enemies, we must give Expedition to Expedition; let us forbear particulars. A man in a journey is hindred by asking too many questions: I do believe our peril is as great as may be, every man complains of it, that doth encourage the Enemy: Our way is to take that, that took away our Estates, that is, the Enemy; to give speedily is that, that the King calls for: A word spoken in season, is like an Apple of Silver; and actions are more precious than words. Let us hasten our Resolutions to supply his Majesty. And after some debate, they came to this unanimous Resolve, That Five Subsidies be given to his Majesty; and Mr. Secretary Cook was appointed to acquaint his Majesty with the Resolution of the House.
Monday the 7. of April.
Mr. Secretary Cook reports the King's acceptance of Five Subsidies.
'Mr. Secretary Cook reported to the House the King's acceptance of the Subsidies, and how his Majesty was pleased to ask, by how many voices they were gain'd? I said, but by one. His Majesty asked, How many were against him? I said None; for they were voted by one voice, and one general consent. His Majesty was much affected therewith, and called the Lords in Council, and there I gave them an account what had passed; besides, it gave his Majesty no small content, that although Five Subsidies be inferior to his wants, yet it is the greatest gift that ever was given in Parliament; and now he fees with this he shall have the affections of his People, which will be greater to him than all value. He said, He liked Parliaments at the first, but since (he knew not how) he was grown to a distaste of them; but was now where he was before, he loves them, and shall rejoice to meet with his People often.
Upon the giving of the Five Subsidies, the Duke of Bucks made this Speech at the Council-Table, and Mr. Secretary at that time acquainted the House therewith. The Speech was this.
The Duke of Buckingham's Speech at the Council-Table thereupon.
'Sir, methinks I behold you a great King, for love is greater than Majesty; opinion that the people loved you not, had almost lost you in the opinion of the world; but this day makes you appear as you are, a glorious King, loved at home, and now to be feared abroad; this falling out so happily, give me leave, I beseech you, to be an humble suitor to your Majesty; i. for my self, that I who have had the honour to be your Favorite, may now give up that Title unto them, they to be your Favorites, and I to be your Servant. My second suit is, That they having done also well, you will account of them as one; a Body of many Members, but all of one heart: opinion might have made them differ, but affection did move them all to join with like love in this great gift; for proportion, although it be less than your occasions may ask, yet it is more than ever Subjects did give in so short a time; nor am I persuaded it will rest there, for this is but an earnest of their affections, to let you see, and the world know, what Subjects you have, that when the honour and the good of the State is engaged, and Aid asked in the ordinary way of Parliament, you cannot want: This is not the gift of five Subsidies alone, but the opening of a Mine of Subsidies that lieth in their hearts. This good beginning hath wrought already these effects, they have taken your heart, drawn from you a Declaration that you will love Parliaments. And again, this will meet (I make no question) with such respect, that their demands will be just, dutiful, and moderate; for they that know thus to give, know well what is fit to ask. Then cannot your Majesty do less than out-go their demands, or else you do less than your self or them; for your essage begot trust, their truth and your promises must then beget performances. This being done, then shall I with a glad heart, behold this work as well ended as now begun, and then shall I hope, that Parliaments shall be made hereafter so frequent, by the effects and good use of them, as they shall have this further benefit, to deter from approaching your ears those projectors and inducers of innovation, as disturbers both of Church and Common-wealth. Now, Sir, to open my heart, and to ease my grief, please you to pardon me a word more; I must confess I have long liv'd in pain, sleep hath given me no rest, Favours and Fortunes no content, such have been my secret sorrows, to be thought the man of separation, and that divided the King from his People, and them from him; but I hope it shall appear, they were some mistaken minds, that would have made me the evil Spirit that walketh between a good Master and loyal People, by illOffices; whereas, by your Majesty's favour, I shall ever endeavour to approve my self a good Spirit, breathing nothing but the best of Services to them all. Therefore this day I account more blessed to me than my birth, to see my self able to serve them, to see you brought in love with Parliaments, to see a Parliament express such love to you; and God so love me and mine, as I joy to see this day.
It is ill taken by Sir John Elliot, the Duke's name was intermingled with the King's by Secretary Cook.
Mr. Secretary Cook also at this time repeated the substance of the King's Answer to the Petition concerningRecusants. And after he had done, Sir John Elliot expressed the great satisfaction which he apprehended, the House in general, and himself in special, had received touching each particular of his Majesty's gracious Answer; but shewed his dislike, that Mr. Secretary in the close of his relation, made mention of another in addition to his Majesty, which formerly had been a matter of complaint in the House, the mixture with his Majesty, not only in the business, but in his name. 'Is it (said he) that any man conceives the mention of others (of what quality soever) can add encouragement or affection to us in our duties and loyalties towards his Majesty, or give them greater latitude or extent, than naturally they have? Or is it supposed that the power or interest of any man can add more readiness to his Majesty, in his gracious inclination to us, than his own goodness gives him? I cannot believe it. And as the sweetness and piety of his Majesty, which we have in admiration, makes me confident in this, so the expressions of our duty so perspicuous and clear, as already hath been given, is my assurance for the other.
'But, Sir, I am sorry there is this occasion, that these things should be argued, or this mixture which was formerly condemned, should appear again: I beseech you, Sir, let it not be hereafter; let no man take this boldness within these Walls to introduce it, though I confess for my particular, I shall readily commend, nay, thank that man, whose endeavours are applied in such Offices, as may be advantageable for the publick: Yet in this matter, so contrary to the Custom of our Fathers, and the honour of our Times, I cannot without scandal apprehend it, nor without some Characters or Exception pass it by, that such interposition for the future may be left.
'Now let us proceed, said he, to those services that concern his Majesty and the Subject, which (I doubt not) in the end will render us so real unto him, that we shall not need more help to endear us to his favor.
The Commons having expressed their dutiful affections towards his Majesty, in giving him so large a Gift as Five Subsidies, and having also shewed their care of the Subjects in the liberty of their Person, and propriety in their Goods, did now prepare to transmit their Resolves to the Lords for their concurrence; and several Members were appointed to manage a Conference with the Lords concerning the same. We shall briefly touch some passages concerning that Conference, as to the Rational and Historical part thereof, omitting to mention Precedents and Book-Cases, left they should prove tedious to the Reader.
Sir Dudley Digs begins the Conference by way of Introduction.
Sir Dudley Diggs began with this Introduction: 'I am commanded to shew unto your Lordships in general, that the Laws of England are grounded on Reason, more antient than Books, consisting much in unwritten Customs, yet so full of Justice and true Equity, that your most honourable Predecessors and Ancestors propugned them with a Nolumus mutari; and so antient, that from the Saxon days, not withstanding the injuries and ruins of time, they have continued in most part the same, as may appear in old remaining Monuments of the Laws of Ethelbert, the first Christian King of Kent, Ina the King of the West Saxons, Offa of the Mercians, and of Alfred the great Monarch,. who united the Saxon Heptarchy, whose Laws are yet to be seen published, as some think, by Parliament, as he says to that end, Ut qui sub uno Rege, sub una lege regerentur. And though the Book of Litchfield, speaking of the times of the Danes, says, then, Jus sopitum er at inregno, leges & consuetudines sopit$ae sunt; and, Parva volunt as, vis & violentia magis regnabant quam Judicia vel Justicia: Yet, by the blessing of God, a good King Edward, commonly called S. Edward, did awaken those Laws, and as the old words are, Excitatis reparavit, reparatas decoravit, decorat as confirmavit; which confirmavit shews, that good King Edward did not give those Laws, which William the Conqueror, and all his Successors, since that time, have sworn unto.
'And here, my Lords, by many Cases frequent in our modern Laws, strongly concurring with those of the antient Saxon Kings, I might, if time were not more precious, demonstrate, that our Laws and Customs were the same.
'I will only intreat your Lordships leave to tell you, That as we have now, even in those Saxon times, they had their Court Barons, and Court Leets, and Sheriffs Courts, by which, as Tacitus says of the Germans, their Ancestors, Jura reddebant per pagos & vicos; and I do believe, as we have now, they had their Parliaments, where new Laws were made, cum consensu Pralatorum, Magnatum & totius Communit at is; or as another writes, Cum consilio Pralatorum, Nobilium & Capientum Laicorum; I will add nothing out of Glanvile, that wrote in the time of Hen.2. or Bracton, that writ in the days of Hen. 3. only give me leave to cite that of Fortescue, the learned Chancellor to Hen. 6. who writing of this Kingdom, says, Regnum istud moribus nationum & regum temporibus, eisdem quibus nunc regitur legibus & consuetudinibus regebatur. But, my good Lords, as the Poet said of Fame, I may say of our Common Law,
Ingrediturque solo, caput inter nubila condit.
'Wherefore the cloudy part being mine, I will make haste to open way for your Lordships, to hear more certain Arguments, and such as go on more sure grounds.
'Be pleas'd then to know, that it is an undoubted and fundamental Point of this so antient Common Law of England, That the Subject hath a true property in his Goods and Possessions, which doth preserve as sacred, that meum & tuum, that is the Nurse of Industry, and Mother of Courage, and without which, there can be no Justice, of which, meum & tuum is the proper object. But the undoubted Birthright of true Subjects hath lately not a little been invaded and prejudiced by pressures; the more grievous, because they have been pursued by Imprisonment, contrary to the Franchises of this Land: and when according to the Laws and Statutes of this Realm, redress hath been sought for in a legal way, by demanding Habeas Corpus from the Judges, and a discharge by trial according to the Law of the Land, success hath failed: that now enforceth the Commons in this present Parliament assembled, to examine, by Acts of Parliament, Precedents and Reasons, the truth of the English Subjects liberty, which I shall leave to a learned Gentleman to argue.
Next after Sir Dudley Diggs, spake Mr. Ed. Littleton of the Inner Temple, 'That their Lordships have heard, that the Commons have taken into consideration the matter of personal Liberty, and after long debate thereof, they have, upon a full search, and clear understanding of all things pertinent to to the question, unanimously declared, That no Freeman ought to be committed or restrained in prison 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: And they have sent me, with other of their Members, to represent unto your Lordships the true grounds of their resolution, and have charged me particularly, leaving the reasons of Law and Precedents for others, to give your Lordships satisfaction, that this Liberty is established and confirmed by the whole State, the King, the Lords Spiritual and Temporal, and Commons, by several Acts of Parliament, the Authority whereof is so great, that it can receive no Answer, save by Interpretation or Repeal by future Statutes. And these I shall mind your Lordships of, are so direct in the point, that they can bear no other exposition at all; and sure I am, they are still in force: The first of them is the grand Charter of the Liberties of England, first granted in the 17th. year of King John, and renewed in the 19th. year of Hen. 3. and since confirmed in Parliament above 30 times; the words there are, chap. 29. Nullus liber homo capiatur, vel imprisonetur, aut disseisietur de libero tenemento suo vel liber is consuetudinibus suis, aut utlagatur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec eum mittemus, nisi per legale judicium Parium suorum, vel per legem terrœ.
He then proceeded to open, and argued learnedly upon the several particulars in the last recitedClause of MagnaCharta; and further shewed, 'That no invasion was made upon this personal Liberty, till the time of King Ed 3. which was soon resented by the Subject, for in the 5 Ed. 3. chap. 9. it is enacted, That no man from henceforth shall be attached on any occasion, nor fore-judged of Life or Limb, nor his Lands, Tenements, Goods, nor Chattels, seised into the King's hands, against the Form of the Great Charter, and the Law of the Land. And 25 Ed 3. chap 4. it is morefull, and doth expound the words of the GrandCharter, which is thus; Whereas it is contained in the GrandCharter of the Franchises of England, that none shall be imprisoned, nor put out of his Free-hold, nor Free-custom, unless it be by the Law of the Land, it is awarded, assented, and established, That from henceforth none shall be taken by Petition or Suggestion made to our Lord the King, or to his Council, unless it be by Indictment or Presentment of his good and lawful People of the same Neighbourhood; which such Deed shall be done in due manner, or by Process made by Writ original at the Common Law; nor that none be outed of his Franchises, Office, nor Freehold, unless it be duly brought in Answer, and fore-judged of the same, by the course of the Law, and that if any thing be done against the same, it shall be redressed and holden for none. And 28 Ed. 3. chap. 3. it is more direct, this Liberty being followed with fresh Suit by the Subject, where the words are not many, but very full and significant, That no man, of what state and condition he be, shall be put out of his Lands nor Tenements, nor taken nor imprisoned, nor disinherited, nor put to death, without it be brought in Answer by due process of the Law. Several other Statutes were cited by him, in confirmation of this point of the Liberty of the Subject.
The King's Council afterward made Objections to the said Argument, yet acknowledged, 'That the seven Statutes urged by the House of Commons, are in force; yet said, That some of them are in general words, and therefore conclude nothing, but are to be expounded by Precedents, and some of them are applied to the suggestion of Subjects, and not to the King's command simply of its self; and that per legem terrae in Magna Charta, cannot be understood for process of Law, and original Writs; for that in Criminal proceedings, no original Writ is usual at all, but every Constable, either for Felony, or breach of the Peace, or to prevent the breach of the Peace, may commit without Process or original Writ; it were very hard the King should not have the power of a Constable. They also argued, That the King was not bound to express the cause of Imprisonment, because there may be in it matter of State, not fit to be revealed for a time, left the Confederates thereupon make means to escape the hands of Justice. Besides, that which the Commons do say, That the Party ought to be delivered or bailed, is a contradiction in its self; for Bailing doth signify a kind of imprisonment still, Delivery is a total freeing: And besides, Bailing is a grace or favour of a Court of Justice, and they may refuse to do it.
To this it was replied, 'That the Statutes were direct in point, and though some of them speak of suggestions of the Subjects, yet they are in equal reason a commitment by command of the King, as when the King taketh notice of a thing himself. And for the words, per legemterrae, original Writs only are not intended, but all other legal Process, which comprehendeth the whole proceedings of the Law upon Cause other than trial by Jury, and the course of the Law is rendred by due process of the Law, and no man ought to be imprisoned by special command without Indictment, or other due process to be made by the Law. And whereas it is said, there might be danger in revealing the Cause, that may be avoided,by declaring a general Cause, as for Treason, suspicion of Treason, misprision of Treason, Felony, without expressing the particulars, which can give no greater light to a Confederate, than will be conceived upon the very apprehension upon the imprisonment, if nothing at all were expressed.
'And as for the bailing of the Party committed, it hath ever been the discretion of the Judges, to give so much respect to a Commitment, by the command of the King or Privy-Council, which are ever intended to be done in just and weighty Cases, that they will not suddenly set them free, but bail them to answer what shall be objected against them, on the King's behalf; but if any other inferior Officer do commit a man without shewing cause, they do instantly deliver him, as having no cause to expect their leisure; so that delivery is applied to the imprisoned, by command of some mean Minister of Justice: Bailing, when it is done by command of the King, or his Council; and though Bailing is a grace and favour of the Court, in case of Felony and other crimes, for that there is another way to discharge them in convenient time by their trial; but where no cause of imprisonment is returned, but the command of the King, there is no way to deliver such Persons by trial or otherwise, but that of the Habeas Corpus; and if they should be then remanded, they might be perpetually imprisoned without any remedy at all, and consequently a man that had committed no offence, might be in a worse case than a greater offender; for the latter should have an ordinary trial to discharge him, the other should never be delivered.
Mr. Selden of the Inner-Temple argued next, first making this Introduction. 'Your Lordships have heard from the Gentleman that last spake, a great part of the grounds upon which the House of Commons, upon mature deliberation, proceeded to that clear resolution touching the right of the liberty of their persons: The many Act of Parliament, which are the written Laws of the Land, and are expresly in the point, have been read and opened, and such Objections as have been by some made unto them, and Objections also made out of another Act of Parliament, have been cleared and answered: It may seem now perhaps (my Lords) that little remains needful to be further added, for the enforcement and maintenance of so fundamental and established a Right and Liberty, belonging to every Free-man of the Kingdom.
'The House of Commons taking into consideration, that in this question, being of so high a nature, that never any exceeded it in any Court of Justice whatsoever, all the several ways of just examination of the Truth should be used, have also most carefully informed themselves of all former Judgments or Precedents concerning this great point either way; and have been no less careful of the due preservation of his Majesty's just Prerogative, than of their own Rights. The Precedents here are of two kinds, either meerly matter of Record, or else the former resolutions of the Judges, after solemn debate in the Point.
'This Point that concerns Precedents, in the House of Commons have commanded me to present to your Lordships, which I shall as briefly as I may, so I do it faithfully and perspicuously: to that end, my Lords, before I come to the particulars of any of those Precedents, I shall first remember to your Lordships, that which will seem as a general Key for the opening and true apprehension of all them of Record; without which Key, no man, unless he be vers'd in the Entries and course of the King's Bench, can possibly understand.
'In all Cases, my Lords, where any Right or Liberty belongs to the Subjects by any positive Law, written or unwritten, if there were not also a Remedy by Law, for enjoying or regaining of this Right or Liberty when it is violated, or taken from him, the positive Law were most vain, and to no purpose; and it were to no purpose for any man to have any right in any Land or other Inheritance, if there were not a known Remedy; that is, an Action or Writ, by which, in some Court of ordinary Justice, he might recover it. And in this Case of Right of Liberty of Person, if there were not a Remedy in the Law for regaining it when it is restrain'd, it were of no purpose to speak of Laws that ordain it should not be restrained.
'The Writ of Habeas Corpus, or Corpus cum causa, is the highest Remedy in Law for any man that is imprisoned, and the only Remedy for him that is imprisoned by the special command of the King, or the Lords of the Privy Council, without shewing cause of the Commitment; and if any man be so imprisoned by any such Command, or otherwise whatsoever through England, and desire, by himself, or any other in his behalf, this Writ of Habeas Corpus for the purpose in the Court of King's Bench, that Writ is to be granted to him, and ought not to be denied, and is directed to the Keeper of the Prison, in whose custody the Prisoner remains, commanding him, That after a certain day he bring in the Body of the Prisoner, cum causa detentions, and sometimes cum causa captionis; and he, with his Return, filed to the Writ, bringeth the Prisoner to the Bar at the time appointed, and the Court judgeth of the sufficiency or insufficiency of the Return; and if they find him bailable, committitur Marescalls, the proper Prison belonging to the Court; and then afterward, traditur in ball. But if upon the return of the Hab. Corp. it appear to the Court, that the Prisoner ought not to be bailed, nor discharged from the Prison whence he is brought, then he is remanded and sent back again, to continue, till by due course of Law he may be delivered; and the entry of this is Remittitur quousque secundum legem deliberatus suerit; or, Remittitus quousque, & c. which is all one, and the highest award of Judgment that ever was or can be given upon a Habeas Corpus.
'Your Lordships have heard the resolution of the House of Commons, touching the enlargement of a man committed by the command of the King, or the Privy-Council, or any other, without cause shewed of such commitment; which resolution as it is grounded upon Acts of Parliament already shewn (the reason of the Law of the Land being committed to the charge of another to open unto you) so it is strengthened by many Precedents of Records. He then produced twelve Precedents, full and directly in the point, to prove that persons so committed, ought to be delivered upon Bail, which were distinctly opened and read to their Lordships; then he also offered to their consideration other kind of Precedents, which were solemn resolutions of Judges, things not of Record, but yet remain in Authentick Copies; which Precedents and Authorities we omit for the length thereof.
He then proceeded and said, 'The House of Commons desiring with all care to inform themselves fully of the truth of the resolution of the Judges in the 34 year of the Queen, cited in this case of Sir John Heveningham, by the King's Council, as Arguments against his not being bailed, have got into their hands a Book of Select Cases, collected by the Reverend and Learned Judge, Chief Justice Anderson, all written with his own hand; which he caused to be read, being the same which hath been already mentioned in the Collections of this Parliament; which Precedents, faith he, do fully resolve enough for the maintenance of the antient and fundamental Point of Liberty of the Person, to be regained by Habeas Corpus when any is imprisoned.
Then he concluded, That having thus gone through the Charge committed to him by the House of Commons, he should now, as he had leave and direction given him, left their Lordships should be put to much trouble and Expence of time, in finding and getting Copies at large of those things which he had cited, offer also to their Lordships Authentick Copies of them all, and so left them, and whatsoever else he had said, to their Lordships further consideration.
Sir Edward Cook.
Last of all, Sir Edward Cook took up the Argument, as to the Rational part of the Law, and began with this Introduction; 'Your Lordships have heard seven Acts of Parliament in point, [and Thirty one Precedents summarily collected, and with great understanding delivered, which I have perused, and understand them all throughly; Twelve of the Precedents are in terminis terminantibus, a whole Jury of Precedents, and all in the point: I am much transported with joy, because of the hope of good success in this weighty business, your Lordships being so full of Justice, and the very Theme and Subject doth promise success, which was Corpus cum causa, the freedom of an English man, not to be imprisoned without cause shewn, which is my part to shew, and the reason and the cause why it should be so, wherein I will not be prolix nor copious; for to gild Gold were idle and superfluous. And after he had cleared some doubts made of the Statute of 'Westminster, which faith, That the Sheriffs and others, in some cases, may not replevin men in Prison; he proceeded further, and faid, That all those Arguments offered unto your Lordships in this last Conference, are of a double nature. 1. Acts of Parliament. 2. Judicial Precedents. For the first, I hold it a proper Argument for your Lordships, because you my Lords Temporal, and you my Lords Spiritual, gave your assent unto those Acts of Parliament; and therefore if these cannot persuade you, nothing can. For the second, which are Judicial Precedents, it is Argumentum ab Authoritate, and Argumentum ab authoritate valet affirmative; that is, I conceive, though it be no good argument to say negatively, the Judges have no opinion in the point. 3. It is good Law, which I fortify with a strong Axiom, Neminem oportet sapientiorem esse legibus. Now these two Arguments being so well pressed to your Lordships by my Colleagues, I think your Lordships may wonder what my part may be; it is short, but sweet; it is the Reason of all those Laws and Precedents, and Reason must needs be welcome to all men; for all men are not capable of the understanding of the Law, but every man is capable of Reason; and those Reasons I offer to your Lordships, in affirmance of the antient Laws and Precedents made for the Liberty of the Subject, against Imprisonment without cause expressed.
- '1. .
- '2. .
- '3. From the remedies provided.
- '4. From the extent and universality of the same.
- '5. From the infiniteness of the time.
- '6. .
'The first general Reason is, á re ipsa, even from the nature of imprisonment, ex visceribus causœ, for I will speak nothing but ad idem, be it close or other imprisonmen; and this Argument is threefold, because an imprisoned man upon will and pleasure is,
- '1. A Bond-man.
- '2. Worse than a Bond-man.
- '3. Not so much as a man; for , a Prisoner is a dead man.
'1. No man can be imprisoned upon will and pleasure of any, but he that is a Bond-man and Villain, for that imprisonment and bondage are Propria quarto modo to Villains; now propria quarto modo, and the species, are convertible; whosoever is a Bond-man, may be imprisoned upon will and pleasure; and whosoever may be imprisoned upon will and pleasure, is a Bond-man.
'If Free-men of England might be imprisoned at the will and pleasure of the King or his Commandment, then were they in worse case than Bond-men or Villains; for the Lord of a Villain cannot command another to imprison his Villain without cause, as of disobedience or refusing to serve, as it is agreed in the Year-books. And here he said, that no man should reprehend any thing that he said out of the Books or Records; he said, he would prove a Free-man imprisonable upon command or pleasure, without cause expressed, to be absolutely in worse case than a Villain; and if he did not make this plain, he desired their Lordships not to believe him in any thing else; and then produced two Book-cases, 7 E. 3. fol. 50. in the new print, 348 old print. A Prior had commanded one to imprison his Villain, the Judges were ready to bail him, till the Prior gave his reason, that he refused to be Bailiff of his Mannor, and that satisfied the Judges. 2d. Case, 33 Ed. 3. title Tresp. 253; in Faux imprisonment, it was of an Abbot, who commanded one to take and detain his Villain, but demanded his cause; he gives it, because he refused, being thereunto required to drive his Cattle.
'Ergo, Free-men imprisoned without cause shewn, are in worse case than Villains, that must have a cause shewn them why they are imprisoned.
'3. A Free-man imprisoned without cause, is so far from being a Bondman, that he is not so much as a man, but is indeed a dead man, and so no man: Imprisonment is in Law a civil death, perdit domum, familiam, vicinos, patriam, and is to live amongst wretched and wicked men, malefactors, and the like. And that death and imprisonment was the same, he proved by an Argument ab effectis, because they both produce the like immediate effects; he quoted a Book for this: If a man be threatned to be killed, he may avoid Feosment of Lands, Gifts of Goods, &c. so it is if it be threatned to be imprisoned; the one is an actual, the other is a civil death. And this is the first general Argument, drawn a re ipsa, from the nature of imprisonment, to which res ipsa consilium dedit.
The second general Reason he took also from his Books, for he said he hath no Law, but what by great pains and industry he learnt at his Book, for at ten years of age he had no more Law than other men of like age; this second reason is, a minori ad majus; he takes it from Bracton, minima pæna corporalis, est major qualibet pecuniaria.
'But the King himself cannot impose a Fine upon any man, but it must be done judicially by his Judges, per Justitiarios in Curia, non per Regem in Camera; and so it hath been resolved by all the Judges of England; he quoted 3 R. 2. fol. 11.
'The third general Reason is taken from the number and diversity of remedies, which the Laws give against Imprisonment, viz.
'The latter two of these are antiquated, by the Writ, De odio & atia, is revived, for that was given by the Statute of Magna Charta, chap.26. and therefore though it were repealed by Statute of 42 E. 3. by which it is provided, that all Statutes made against Magna Charta are void; now the Law would never have given so many remedies, if the Freemen of England might have been imprisoned at free will and pleasure.
'The fourth general Reason is from the extent and universality of the pretended power to imprison; for it should extend not only to the Commons of this Realm, and their Posterities, but to the Nobles of the Land, and their Progenies, to the Bishops and Clergy of the Realm, and their Successors. And he gave a cause why the Commons came to their Lordships, Commune periculum commune requirit auxilium. Nay, it reacheth to all persons, of what condition, or sex, or age soever; to all Judges and Officers, whose attendance is necessary, & c. without exception, and therefore an imprisonment of such an extent, without reason, is against reason.
'The fifth general Reason is drawn from the indefiniteness of time, the pretended power being limited to no time, it may be perpetual during life; and this is very hard: to cast an old man into prison, nay, to close prison, and no time allotted for his coming forth, is a hard case, as any man could think that had been so used. And here he held it an unreasonable thing, that a Man had a remedy for his Horse or Cattle, if detained, and none for his Body thus indefinitely imprisoned; for a Prison without a prefixed time, is a kind of Hell.
'The fixth and last Argument is a Fine; and sapiens incipit a Fine, and he wisht he had begun there also; and this Argument he made threefold.
|Ab honesto.||This being less honourable.|
|Ab utili.||This being less profitable.|
|A tuto||This Imprisonment by will and pleasure, being very dangerous for the King and Kingdom.|
'1. Ab honesto. It would be no honour to a King or Kingdom, to be a King of Bond-men or Slaves, the end of this would be both Dedecus & damnum, both to King and Kingdom, that in former times hath been so renowned.
'2. Ab utili. It would be against the profit of the King, and Kingdom, for the execution of those Laws before remembred, MagnaCharta, 5 Ed. 3. 25 Ed. 3.28 Edw. 3. whereby the King was inhibited to imprison upon pleasure: You see (quoth he) that this was vetus querrela, an old question, and now brought in again, after seven Acts of Parliament; I say, the execution of all these Laws are adjudg'd in Parliament to be for the common profit of the King and People; and he quoted the Roll, this pretended power being against the profit of the King, can be no part of his Prerogative.
'He was pleased to call this a binding-reason, and to say, that the wit of man could not answer it; that great men kept this Roll from being printed, but that it was equivalent in force to the printed Rolls.
'3. A Reason a tuto. It is dangerous to the King for two respects; first, of loss; secondly, of destroying the endeavours of men. First, if he be committed without the expression of the cause, though he escape, albeit in truth it were for Treason or Felony, yet this escape is neither Felony nor Treason; but if the cause be expressed for suspicion of Treason or Felony, then the escape, though it be innocent, is Treason or Felony. He quoted a cause in print like a Reason of the Law, not like Remittitur at the rising of the Court, for the Prisoner, traditur in Ballium quod breve Regis non suit sufficiens causa. The King's command. He quoted another famous cause, Commons in Parliament incensed against the Duke of Suffolk, desire he should be committed: The Lords and all the Judges, whereof those great Worthies Prescot and Fortescue, were two, delivered a flat opinion, That he ought not to be committed without an especial cause. He questioned also the name and erymology of the Writ in question, Corpus cum causa; Ergo, The Cause must be brought before the Judge, else how can he take notice hereof?
'Lastly, he pressed a place in the Gospel, Acts 25. last verse, which Fe stus conceives is an absurd and unreasonable thing, to send a Prisoner to a Roman Emperor, and not to write along with him the cause alledged against him: Send therefore no man a Prisoner, without his Causes along with him, hoc fac & vives. And that was the first reason, a tuto, that it was not safe for the King in regard of Loss, to commit men without a Cause.
'The second Reason is, That such Commitments will destroy the endeavours of all men; who will endeavour to employ himself in any Profession, either of War, Merchandise, or of any Liberal Knowledge, if he be but Tenant at Will of his Liberty? For no Tenant at Will will support or improve any thing, because he hath no certain Estate; Ergo, to make men Tenants at Will of their Liberties, destroys all industry and endeavours whatsoever. And so much for the fix principal Reasons:
|A re ipsa.||Loss of|
|A minore ad majus.||Honour.|
|From the extent and universality.||Security.|
|From the infiniteness of the time.||Industry.|
These were his Reasons.
Here he made another Protestation, 'That if remedy had been given in this Case, they would not have meddled therewith by no means; but now that remedy being not obtain'd in the King's Bench, without looking back upon any thing that hath been done or omitted, they desire some provision for the future only. And here he took occasion to add four Book Cases and Authorities, all in the point, saying, That if the Learned Council on the other side could produce but one against the Liberties, so pat and pertinent, Oh! how they could hug and cull it. 16 H. 6. tit. monstrance de fait 82. by the whole Court, the King in his presence cannot command a man to be arrested, but an action offalse imprisonment lieth against him that arresteth: If not the King in his Royal Presence, then none others can do it. Non sic itur ad astra 1 Hen. 7.4. Hussey reports the opinion of Markham, Chief Justice to Edw. 4. that he could not imprison by word of mouth; and the reason, because the Party hath no remedy; for the Law leaves every man a remedy of causless imprisonment: He added, that Markham was a worthy Judge, though he fell into adversities at last by the Lord Rivers his means. Fortescue, chap. 8. Proprio ore nullus Regumusus est, to imprison any man, &c. 4 Eliz. Times blessed and renowned for Justice and Religion, in Pl. 235. the Common Law hath so admeasured the King's Prerogative, as he cannot prejudice any man in his Inheritance; and the greatest Inheritance a man hath, is the liberty of his person, for all others are accessary to it; for thus he quoteth the Orator, Major hareditas venit unicuique nostrum á sure legibus quam a parentibus.
'And these are the four Authorities he cited in this point: Now he propounded and answered two Objections; First, in point of State; Secondly, in the course held by the House of Commons.
'May not the Privy-Council commit, without cause shewed, in no matter of State where Secrecy is required? Would not this be an hinderance to his Majesty's Service?
'It can be no prejudice to the King by reason of matter of State, for the cause must be of higher or lower nature. If it be for suspicion of Treason, misprision of Treason or Felony, it may be by general words couched; if it be for any other thing of smaller nature, as contempt, and the like, the particular cause must be shewed, and no individuum vagum, or uncertain cause to be admitted.
'Again, if the Law be so clear as you make it, why needs the Declaration and Remonstrance in Parliament?
'The Subject hath in this Case sued for Remedy in the Kings Bench by Habeas Corpus, and found none; therefore it is necessary to be cleared in Parliament. And here ends his Discourse: And then he made a recapitulation of all that had been offered unto their Lordships, that generally their Lordships had been advised by the most faithful Counsellors that can be; dead men, these can't be daunted by fear, nor muzl'd by affection, reward, or hope of preserment, and therefore your Lordships might safely believe them; particularly their Lordships had three several kinds of proofs.
'1. Acts of Parliament, Judicial Precedents, good Reasons. First, you have had many antient Acts of Parliament in the Point, besides Magna Charta, that is, seven Acts of Parliament, which indeed are thirty seven, Magna Charta being confirmed thirty times, for so often have the Kings of England given their Royal Assents thereunto.
'2. Judicial Precedents of grave and reverend Judges, in terminis terminantibus, that long since departed the World, and they were many in number. Precedents being twelve, and the Judges four of a Bench made four times twelve, and that is fourty eight Judges.
'3. You have, as he termed them, vividas rationes, manifest and apparent Reasons: Towards the conclusion he declareth to their Lordships, That they of the House of Commons have, upon great study and serious consideration, made a great manifestation unanimously, Nullo contradicente, concerning this great Liberty of the Subject, and have vindicated and recovered the Body of this fundamental Liberty, both of their Lordships and themselves, from shadows, which sometimes of the day are long, sometimes short, and sometimes long again; and therefore we must not be guided by shadows: and they have transmitted to their Lordships, not capita rerum, Heads or Briefs, for these compendia are dispendia: but the Records at large, in terminis terminantibus: and so he concluded, that their Lordships are involved in the same danger, and therefore ex congruo & condigno, they desired a Conference, to the end their Lordships might make the like Declaration as they had done; Commune periculum, commune requirit auxilium; and thereupon take such further course, as may secure their Lordships and them, and all their Posterity, in enjoying of their antient, undoubted, and fundamental Liberties.
The two next days were spent in the Debate about Billeting of Soldiers upon the Subject, against Law.
His Majesty's Message for non-recess.
Thursday the 10 of April, Mr. Secretary Cook delivered this Message from theKing, That his Majesty desired this House not to make any recess these Easter Holidays, that the World may take notice how earnest his Majesty and we are for the publick Affairs in Christendom, the which, by such a recess, would receive interruption.
The Message not approved.
This Message for non-recess, was not well pleasing to the House.
Sir Robert Phillips.
Sir Robert Phillips first resented it, and took notice, 'That in 12 and 18 Jac. upon the like intimation, the House resolved it was in their power to adjourn or sit; Hereafter, said he, this may be put upon us by Princes of less Piety. Let a Committee consider hereof, and of our right herein, and to make a Declaration. And accordingly this matter touching his Majesty's pleasure about the recess, was referred to a Committee, and to consider the power of the House to adjourn it self; to the end, that it being now yielded unto in obedience to his Majesty, it might not turn to prejudice in time to come.
Sir Edw. Cook.
Sir Edward Cook spoke to the same purpose, and said, 'I am as tender of the Priviledges of this House, as of my life, and they are the Heart-strings of the Common-wealth. The King makes a Prorogation, but this House adjourns it self. The Commission of Adjournment we never read, but say, This House adjourns it self. If the King write to an Abbot for a Corody, for a Vallet, if it be ex rogatu, though the Abbot yields to it, it binds not. Therefore I desire that it be entred, that this is done ex rogatu Regis.
Hereupon a Message was sent to the King, That the House would give all expedition to his Majesty's Service, notwithstanding their purpose of recess. To which Message, his Majesty returned this Answer, That the motion proceeded from himself, in regard of his engagement in the Affairs of Christendom, wished them all alacrity in their proceedings, and that there be no recess at all.
Secretary Cook to expedite Subsidies.
Friday the 11. of April, Secretary Cook moved the Expedition of Subsidies, and turning of the Votes into an Act: 'We have many Petitions to the King, faid he, and they are Petitions of Right. We have freely and bountifully given five Subsidies, but no time is appointed, and Subsidy without time is no Subsidy: Let us appoint a time.
Sir Dudley Diggs.
Sir Dudley Diggs quickned his motion, and spoke roundly: 'We have (said he) freely concluded our Liberties, we have offered five Subsidies, his Majesty hath given us gracious Answers, we have had good by our beginnings, What have we hitherto done for the King? Nothing is done that the King can take notice of. The World thinks that this Parliament hath not expressed that resolution that it did at the first, how much doth it concern the King, that the world be satisfied with his Honour? Our success and honour is the King's. Princes want not those that may ingratiate themselves with them, by doing ill offices. There is a stop, and never did a Parliament propound any thing, but it hath been perfected sooner than this is. May not the King say, What have I done? they grow cold. Have I not told them, I will proceed with as much grace as ever King did? He will settle our Proprieties and Goods. Have we not had a gracious Answer? Are we hand in hand for his supply? Shall it be said that this day it was moved, but denied? It may put our whole business back; wherein can this disadvantage us? This binds us not, I dare say confidently, we shall have as much as ever any Subjects had from their King.
Sir Thomas Wentworth.
Sir Thomas Wentworth proposed a middle way, viz. 'That when we set down the time, we be sure the Subjects Liberties go hand in hand together; then to resolve of the time, but not report it to the House, till we have a Ground, and a Bill for our Liberties: this is the way to come off fairly, and prevent jealousies.
Hereupon the Committee of the whole House resolved, That Grievances and Supply go hand in hand.