Historical Collections of Private Passages of State: Volume 1, 1618-29. Originally published by D Browne, London, 1721.
This free content was digitised by double rekeying. All rights reserved.
Monday, 28 April. The Lord Keeper spake to both Houses of Parliament by the King's command, who was then present.
The Lord Keeper's Speech to both Houses, concerning Supply, by the King's command.
'My Lords, and ye the Knights, Citizens, and Burgesses of the House of Commons, ye cannot but remember the great and important Affairs, concerning the safety both of State and Religion, declared first from his Majesty's own mouth, to be the causes of the assembling of this Parliament; the sense whereof, as it doth daily increase with his Majesty, so it ought to do, and his Majesty doubts not but it doth so with you, since the danger increaseth every day, both by effluxion of time, and preparations of the Enemy.
'Yet his Majesty doth well weigh, that this expence of time hath been occasioned by the Debate which hath arisen in both Houses touching the Liberty of the Subject; in which, as his Majesty takes in good part the purpose and intent of the Houses, so clearly and frequently professed, that they would not diminish or blemish his just Prerogative, so he presumes, that ye will all confess it a point of extraordinary Grace and Justice in him, to suffer it to rest so long in dispute without interruption: But now his Majesty, considering the length of time which it hath taken, and fearing nothing so much as any future loss of that, whereof every hour and minute is so precious; and forseeing, that the ordinary way of Debate, though never so carefully husbanded, in regard of the Form of both Houses, necessarily takes more time than the Affairs of Christendom can permit; his Majesty, out of great Princely care, hath thought of this Expedient to shorten the business, by declaring the clearness of his own heart and intention: And therefore hath commanded me to let you know, That he holdeth the Statute of Magna Charta, and the other Six Statutes insisted upon for the Subjects Liberty, to be all in force, and assures you, that he will maintain all his Subjects in the just Freedom of their Persons, and safety of their Estates; and that he will govern according to the Laws and Statutes of this Realm; and that ye shall find as much security in his Majesty's Royal Word and Promise, as in the strength of any Law ye can make; so that hereafter ye shall never have cause to complain. The conclusion is, That his Majesty prayeth God, who hath hitherto blessed this Kingdom, and put into his heart to come to you this day, to make the success thereof happy, both to King and People: And therefore he desires, that no doubt or distrust may possess any man, but that ye will all proceed unanimously to the business.
The Commons being returned from the Lord's House, Mr. Secretary Cook persuaded them to comply with the King.
His Majesty, said he, puts us in mind of the great important Affairs of the State, and of his sense thereof, that by effluxion of time increaseth in him, and he doubts not but that it doth increase in us. Ye see his Majesty's moderation in the interpretation of all our actions; he saith, that he hopes we have the same sense he hath, he is pleased to consider of the occasion of expence of time that grew from the Debates in both Houses. We see how indulgent he is, that however the Affairs of Christendom are great, yet he omits not this, nay, he takes in good part our Proceedings and our declarations, that will not impeach the Prerogative: Also his Majesty presumes that he will confess, that he hath used extraordinary Grace, in that he hath endured dispute so long, he acknowledgeth it Justice to stand as we have done.
Further, out of a Princely care of the Publick, he is careful no more time be lost; and because he sees some extraordinary course to be taken to satisfie us, he observes, that in the form of Debate, such length is required, as the nature of the business will not endure. It is to be presumed, that his Government will be according to the Law: We cannot but remember what his Father said, He is no King, but a Tyrant, that governs not by Law; but this Kingdom is to be governed by the Common Law, and his Majesty assures us so much; the Interpretation is left to the Judges, and to his great Council, and all is to be regulated by the Common Law, I mean not Magna Charta only, for that Magna Charta was part of the Common Law, and the antient Law of this Kingdom; all our difference is in the Application of this Law, and how this Law, with difference, is derived into every Court. I conceive there are two Rules, the one of Brass, that is rigid, and will not bend, and that is the Law of the King's Bench, this Law will not bend: and when it lights on Subjects fitting, if it do not bend, it is unjust: And there comes in the Law of Chancery and Equity; this is application of Law in private mens Causes, when it comes to Meum & Tuum. And thus the general Government of Cases, with relation to the common State of the Kingdom, is from the Council-Board, and there they are to vary from the Law of the Kingdom: Suppose it be in time of Dearth, Propriety of Goods may in that time be forced, and be brought to the Market: We saw the experience of it in Coals in London, and the Council-board caused them to be brought forth and sold. In a time of Pestilence men may be restrained: If a Schism be like to grow in a Church, the State will inquire after the Favourers of it: If there be fear of Invasion, and it be encouraged by hope of a Party amongst us, it is in the power of Government to restrain men to their houses.
In the composure of these things, there is great difference: What differences have been between the Courts of Chancery and King's Bench? It is hard to put true difference between the King's Prerogative and our Liberties. His Majesty saw expence of time would be prejudicial; it pleased God to move his Majesty by a Divine hand to shew us a way to clear all our difficulties, let us attend to all the parts of it; there be five Degrees, and there is more assurance than we could have by any Law whatsoever. His Majesty declares, That Magna Chvrta and the other Statutes are in force: This is not the first time that the Liberty of the Subject was infringed, or was in debate and confirmed; all times thought it safe, that when they came to a Negative of Power, it was hard to keep Government and Liberty together, but his Majesty stopped not there, but according to the sense of these Laws, That he will govern his Subjects in their just Liberties, he assures us our Liberties are just, they are not of Grace, but of Right; nay he assures us, he will govern us according to the Laws of the Realm, and that we shall find as much security in his Majesty's Promise, as in any Law we can make; and whatsoever Law we shall make, it must come to his Majesty's Allowance; and if his Majesty find cause in his Government, he may not put life to it: We daily see all Laws are broken, and all Laws will be broke for the Publick Good, and the King may pardon all Offenders; his Majesty did see, that the best way to settle all at unity, is to express his own heart: The King's heart is the best guider of his own promise, his promise is bound with his own heart. What Prince can express more care and wisdom?
Lastly, he saith, That hereafter ye shall never have the like cause to complain: May we not think the breach is made up? is not his Majesty engaged in his Royal Word?
The conclusion is full of weight: and he prays God, that as God hath blessed this Kingdom, and put it into his heart to come amongst us, so to make this day successful. The wrath of a King is like the roaring of a Lion, and all Laws with his wrath are to no effect; but the King's favour is like the dew upon the grass, there all will prosper; and God made the Instruments to unite all hearts.
His Majesty having thus discharged himself, he prays us to proceed to the business that so much concerns him. As his Majesty hath now shewed himself the best of Kings, let us acknowledge his Majesty's goodness, and return to that union which we all desire.
But this motion was not received with general acceptation; and Sir Benjamin Rudyard replied to it in these words.
Sir Ben. Rudyard's Speech concerning that motion.
'We are now upon a great business, and the manner of handling it may be as great as the business it self. Liberty is a precious thing, for every man may set his own price upon it, and he that doth not value it, deserves to be valued accordingly: For my own part, I am clear without scruple, that what we have resolved, is according to the Law; and if any Judge in England were of a contrary opinion, I am sure we should have heard of him e're now; out of all question, the very scope and drift of Magna Charta was, to reduce the Regal to a Legal Power, in matter of Imprisonment, or else it had not been worthy so much contending for.
'It is true, That the King ought to have a trust reposed in him, God forbid but he should, and I hope it is impossible to take it from him; for it lies not in the wit of man to devise such a Law, as shall comprehend all particulars, all accidents, but that extraordinary Causes may happen, which when they come, if they be disposed of for the common good, there will be no Law against them; yet must the Law be general, for otherwise, Admissions and Exceptions will fret and eat out the Law to nothing. God himself hath constituted a general Law of Nature, to govern the ordinary course of things, he hath made no Law for Miracles; yet there is this observation of them, that they are rather prœter naturam, than contra naturam, and always propter bonos fines: So the King's Prerogatives are rather besides the Law, than against it; and when they are directly to their ends for the publick good, they are not only concurring Laws, but even Laws in singularity and excellency.
'But to come nearer, let us consider where we are now, what steps we have gone and gained; the King's Learned Council have acknowledged all the Laws to be still in force, the Judges have not allowed any Judgment against these Laws; the Lords also have confessed, that the Laws are in full strength; they have further retained our resolutions entire, and without prejudice.
'All this hitherto is for our advantage; but above all, his Majesty hath this day (himself being publickly present) declared by the mouth of the Lord Keeper, before both the Houses, That Magna Charta, and the other six Statutes, are still in force; That he will maintain his Subjects in the Liberties of their Persons, and Proprieties of their Goods; That he will govern them according to the Laws of the Kingdom; this is a solemn and binding satisfaction, expressing his gracious readiness to comply with his People in their reasonable and just desires. The King is a good Man, and it is no diminution to a King, to be called so; for whosoever is a good Man, shall be greater than a King, that is not so. The King certainly is very tender of his present Honour, and of his Fame hereafter: he will think it hard to have a worse mark set upon him, than upon any of his Ancestors, by extraordinary restraints: His Majesty hath already intimated unto us by a Message, That he doth willingly give way to have the abuse of Power reformed; by which I do verily believe he doth very well understand, what a miserable Power it is, which hath produced so much weakness to himself, and to the Kingdom; and it is one happiness, that he is so ready to redress it.
'For mine own part, I shall be very glad to see that old decrepit Law Magna Charta, which hath been kept so long, and lien bed-rid, as it were, I shall be glad to see it walk abroad again with new vigour and lustre, attended and followed with the other six Statutes: questionless it will be a great heartning to all the People. I doubt not, but upon a debating Conference with the Lords, we may happily fall upon a fair, fit accommodation, concerning the Liberty of our Persons, and Propriety of our Goods. I hope we may have a Bill, to agree in the point, against Imprisonment for Loans or Privy Seals: As for intrinsical power and reason of State, they are matters in the Clouds, where I desire we may leave them, and not meddle with them at all, lest by the way of admittance, we may lose somewhat of that which is our own already: Yet this by the way I will say of Reason of State, That in the latitude by which tis used, it hath eaten out almost, not only the Laws, but all the Religion of Christendom.
'Now I will only remember you of one Precept, and that of the wisest man, Be not over wise, be not over just: and he gives his reason, for why wilt thou be desolate?
'If Justice and Wisdom may be stretched to desolation, let us thereby learn, that Moderation is the Virtue of Virtues, and Wisdom of Wisdoms. Let it be our Master-piece so to carry the business, that we may keep Parliaments on Foot: For as long as they be frequent, there will be no irregular Power, which though it cannot be broken at once, yet in short time it will be made and mouldred away; there can be no total or final loss of Liberties, as long as they last; what we cannot get at one time, we shall have at another.
A Committee ordered to draw up a Bill in order to the Petition of Right.
Upon this debate it was ordered, That a Committee of Lawyers do draw a Bill, containing the substance of Magna Charta, and the other Statutes, that do concern the Liberty of the Subject: which business took up two whole days.
Thursday, the first of May.
Mr Secretary Cook brings a Message to rely on the King's word.
'Mr. Secretary Cook delivers a Message from his Majesty, viz. to know whether the House will rest on his Royal Word, or no, declared to them by the Lord Keeper; which if they do, he assures them it shall be Royally performed.
Upon this there was a silence for a good space: Then Mr. Secretary Cook proceeded. 'This silence invites me to a further Speech, and further to address my self: Now we see we must grow towards an issue; for my part, how confident I have been of the good issue of this Parliament, I have certified in this place, and elsewhere, and I am still confident therein; I know his Majesty is resolved to do as much as ever King did for his Subjects: all this Debate hath grown out of a sense of our sufferings, and a desire to make up again those Breaches that have been made.
'Since this Parliament begun, hath there been any dispence made of that which hath formerly been done? when means were denied his Majesty, being a young King, and newly come to his Crown, which he found ingaged in a War, what could we expect in such Necessities? His Majesty called this Parliament to make up the breach: His Majesty assures us we shall not have the like cause to complain: He assures the Laws shall be established, what can we desire more? all is that we provide for Posterity, and that we do prevent the like sufferings for the future; were not the same means provided by them before us? can we do more? we are come to the Liberty of the Subjects, and the Prerogative of the King, I hope we shall not add any thing to our selves, to depress him. I will not divine, I think we shall find difficulty with the King, or with the Lords, I shall not deliver my opinion as Counsellor to his Majesty, which I will not justify and say here, or at the Council-Board. Will we in this necessity strive to bring our selves into a better condition, and greater Liberty, than our Fathers had, and the Crown into a worse than ever? I dare not advise his Majesty to admit of that: If this that we now desire be no Innovation, it is all contained in those Acts and Statutes, and whatsoever else we would add more, is a dimunition to the King's Power, and an addition to our own. We deal with a wise and prudent Prince, that hath a Sword in his hand for our good, and this good is supported by power. Do not think, that by Cases of Law and Debate we can make that not to be Law, which in experience we every day find necessary: make what Law you will, if I do not discharge the place I bear, I must commit men, and must not discover the cause to any Jaylor or Judge; if I by this Power commit one without just cause, the burden falls heavy on me, by his Majesty's displeasure, and he will remove me from my place. Government is a solid thing, and must be supported for our good.
Sir Robert Phillips hereupon spake thus:
'That if the words of Kings strike impressions in the hearts of Subjects, then do these words upon this occasion strike an impression into the hearts of us all: to speak in a plain language, we are now come to the end of our journey, and the well disposing of an Answer to this Message, will give happiness or misery to this Kingdom. Let us set the Common-wealth of England before the eyes of his Majesty, that we may justify our selves, that we have demeaned our selves dutifully to his Majesty.
And so the day following they had further Debate upon that matter, the House being turned into a Grand Committee, and Mr. Herbert in the Chair.
Some say, that the Subject has suffered more in the violation of antient Liberties within these few years than in Three hundred years before, and therefore care ought to be taken for the time to come.
Sir Edw. Cook said, That that Royal Word had reference to some message formerly sent; his Majesty's word was, That they may secure themselves any way, by Bill or otherwise, he promised to give way to it; and to the end that this might not touch his Majesty's Honour, it was proposed, that the Bill come not from the House, but from the King: We will and grant for us and our Successors and that we and our Successors will do thus and thus; and it is the King's Honour, he cannot speak but by Record.
Others desired the House to consider, when and where the late promise was made; was it not in the face of both Houses? Cruel Kings have been careful to perform their promises, yea, though they have been unlawful, as Herod. Therefore if we rest upon his Majesty's promise, we may assure our selves of the performance of it: Besides, we bind his Majesty by relying on his word: We have Laws enough, it is the execution of them that is our life, and it is the King that gives life and execution.
Sir Thomas Wentworth.
Sir Thomas Wentworth concluded the Debate, saying, 'That never House of Parliament trusted more in the goodness of their King, for their own private, than the present; but we are ambitious that his Majesty's goodness may remain to Posterity, and we are accomptable to a publick trust: and therefore seeing there hath been a publick violation of the Laws by his Ministers, nothing will satisfie him but a publick amends; and our desire to vindicate the Subject's Right by Bill, are no more than are laid down in former Laws, with some modest Provision for Instruction, Performance and Execution.
Which so well agreed with the sense of the House, that they made it the Subject of a Message to be delivered by the Speaker to his Majesty.
The King gives notice to both Houses, that, he intends shortly to end this Session.
Amidst those deliberations, another Message was delivered from his Majesty by Mr. Secretary Cook; 'That howsoever we proceed in this business we have in hand, which his Majesty will not doubt, but to be according to our constant profession, and so as he may have cause to give us thanks; yet his resolution is, that both his Royal care, and hearty and tender affection towards all his loving Subjects, shall appear to the whole Kingdom, and all the World, that he will govern us according to the Laws and Customs of this Realm; that he will maintain us in the Libertier of our Persons, and Properties of our Goods, so as we may enjoy as much happiness as our Forefathers in their best times; and that he will rectifie what hath been, or may be found amiss amongst us, so that hereafter there may be no just cause to complain. Wherein as his Majesty will rank himself amongst the best of Kings, and shew he hath no intention to invade or impeach our lawful Liberties, or Right; so he will have us to match our selves with the best Subjects, not by incroaching upon that Sovereignty or Prerogative, which God hath put into his hands for our good, but by containing our selves within the Bounds and Laws of our Forefathers, without restraining them, or enlarging them by new Explanations, Interpretations, Expositions, or Additions in any sort, which, he telleth us, he will not give way unto.
'That the weight of the affairs of the Kingdom, and Christendom, do press him more and more, and that the time is now grown to that point of maturity, that it cannot endure long debate or delay; so as this Session of Parliament must continue no longer than Tuesday come Seven-night at the furthest: In which time his Majesty, for his part, will be ready to perform what he promised; and if the House be not as ready to do that is fit for themselves, it shall be their own faults.
'And upon assurance of our good dispatch and correspondence, his Majesty his Majesty declareth, that his Royal intention is to have another Session of Parliament at Michaelmas next, for the perfecting of such things as cannot now be done.
Sir John Elliot.
This Message was debated the next day, being Saturday, May 30. whereupon Sir John Elliot spake to this effect.
The King, faith he, will rank himself with the best of Kings, and therefore he would have us to rank our selves with the best Subjects; we will not incroach upon that Sovereignty that God hath put into his hands: This makes me fear his Majesty is mis-informed in what we go about, let us make some enlargement, and put it before him, that we will not make any thing new: As for the time of this Session, it is but short, and look how many Messages we have, so many interruptions, and mis-reports, and mis-representations to his Majesty produce those Messages.
Sir Miles Fleetwood continues the Debate, and said, That this business is of great importance, we are to accommodate this: The breach of this Parliament will be the greatest misery that ever befell us; the eyes of Christendom are upon this Parliament, the state of all our Protestant Friends are ready to be swallowed up by the Emperor's Forces, and our own Kingdom is in a miserable strait, for the defence of our Religion that is invaded by the Romish Catholicks, by the colour of a Commission, which is intolerable; the defence of our Realm by Shipping is decayed, the King's Revenue is sold and gone; where shall the relief be obtained but in Parliament? Now we are in the way, let us proceed by way of Bill, in pursuance of the King's Message, to establish the Fundamental Laws in Propriety of our Goods, and Liberty of our Persons: It was declared to us, that courses by Loan and Imprisonment were not lawful; let us touch them in our Bill, and that all Precedents and Judgments seeming to the contrary be void; and that all Commitments against the Law be remedied, and that we be protected against the fear of Commitments.
In conclusion, the Commons agree to an Answer to all the preceding Messages, and present it to the King by the mouth of their Speaker.
The Speaker's Speech to the King, in Answer to several Messages.
The Speaker's Speech to the King, in answer to several Messages.
Most Gracious and Dread Sovereign,
'Your Loyal and Obedient Subjects, the Commons now assembled in Parliament, by several Messages from your Majesty, and especially by that your Declaration, delivered by the Lord Keeper before both Houses, have, to their exceeding joy and comfort, received many ample expressions of your Princely care and tender affections towards them, with a gracious promise and assurance, that your Majesty will govern according to the Laws of this Realm, and so maintain all your Subjects in the just freedom of their Persons, and safety of their Estates, that all their Rights and Liberties may be by them enjoyed with as much freedom and security in their time, as in any age heretofore by their Ancestors, under the best of your Progenitors: For this so great a favour enlarged, by a comfortable intimation of your Majesty's confidence in the Proceedings of this House, they do, by me their Speaker, make a full return of most humble thanks to your Majesty, with all dutiful acknowledgment of your Grace and Goodness herein extended unto them.
'And whereas in one of those Messages delivered from your Majesty, there was an expression of your desire to know, whether this House would rest upon your Royal Word and Promise, assuring them, that if they would, it should be Royally and really performed: As they again present their humble thanks for the seconding and strengthning of your former Royal Expressions, so in all humbleness they assure your Majesty, that their greatest confidence is, and ever must be in your Grace and Goodness, without which, they well know, nothing that they can frame or desire, will be of safety or value to them: Therefore are all humble Suitors to your Majesty, that your Royal Heart will graciously accept and believe the truth of theirs, which they humbly present as full of truth and confidence in your Royal Word and Promise, as ever House of Commons reposed in any of their best Kings.
'True it is, they cannot but remember the Publick Trust, for which they are accomptable to present and future times; and their desires are, That your Majesty's Goodness might, in Fruit and Memory, be the Blessing and Joy of Posterity.
'They say also, That of late there hath been publick violation of the Laws, and the Subjects Liberties, by some of your Majesty's Ministers, and thence conceive, that no less than a publick remedy will raise the dejected hearts of your loving Subjects to a chearful supply of your Majesty, or make them receive content in the proceedings of this House.
'From those considerations, they most humbly beg your Majesty's leave to lay hold of that gracious offer of yours, which gave them assurance, that if they thought fit to secure themselves in their Rights and Liberties, by way of Bill, or otherwise, so it might be provided with due respect to God's Honour, and the publick Good, you would be graciously pleased to give way unto it. Far from their intentions, it is any way to incroach upon your Sovereignty or Prerogative; nor have they the least thought of stretching or enlarging, the former Laws in any sort, by any new Interpretations or Additions; the bounds of their desires extend no further, than to some necessary explanation of that which is truly comprehended within the just sense and meaning of those Laws, with some moderate provision for execution and performance, as in times past upon like occasion hath been used.
'The way how to accomplish these their humble desires, is now in serious consideration with them, wherein they humbly assure your Majesty, they will neither lose time, nor seek any thing of your Majesty, but that they hope may be fit for dutiful and loyal Subjects to ask, and for a gracious and just King to grant.
His Majesty's Answer was delivered by the Lord Keeper.
His Majesty's Answer to the Speaker's Speech.
Mr. Speaker, and you Gentlemen of the House of Commons, his Majesty hath commanded me to tell you, that he expected an Answer by your Actions, and not delay by Discourse: ye acknowledge this trust and confidence in your proceedings, but his Majesty sees not how you requite him by your confidence of his Word and Actions: For what need Explanations, if ye doubted not the performance of the true meaning? For Explanations will hazard an incroachment upon his Prerogative. And it may well be said, What need a new Law to confirm an old, if you repose confidence in the Declaration his Majesty made by me to both Houses; and our selves acknowledge, that your greatest trust and confidence must be in his Majesty's Grace and Goodness, without which nothing ye can frame will be of safety, or avail to you: Yet to shew clearly the sincerity of his Majesty's Intentions, he is content that a Bill be drawn for a confirmation of Magna Charta, and the other six Statutes insisted upon for the Subjects Liberties, if ye shall chuse that as the best way, but so as it may be without Additions, Paraphrases, or Explanations.
Thus if you please you may be secured from your needless fears, and this Parliament may have a happy wished for end: whereas by the contrary, if you seek to tye your King by new, and indeed impossible Bonds you must be accomptable to God and the Country for the ill Success of this Meeting. His Majesty hath given his Royal Word, that ye shall have no cause to complain hereafter: Less than which hath been enough to reconcile Great Princes, and therefore ought much more to prevail between a King and his Subjects.
Lastly, I am commanded to tell you that his Majesty's pleasure is, That without further Replies or Messages, or other unnecessary delays, ye do what ye mean to do speedily, remembring the last Message that Secretary Cook brought you in point of time: His Majesty always intending to perform his promise to his power.
Mr. Secretary Cook brings another Message to rely on the King's word.
Notwithstanding the intimation of his Majesty's good pleasure for a Bill, Mr. Secretary Cook, Tuesday May 6. again pressed the House to rely upon the King's Word, saying, "That he had rather follow others than begin to enter into this business: Loss of time hath been the greatest complaint; the matter fallen now into confideration, is what way to take, whether to rely on his Majesty's Word, or on a Bill: If we will consider the advantage we have in taking his Majesty's Word, it will be of the largest extent, and we shall chuse that that hath most Assurance; an Act of Parliament is by the consent of the King and Parliament, but this Assurance by Word, is that he will govern us by the Laws; the King promises that, and also that they shall be so executed, that we shall enjoy as much freedom as ever: This contains many Laws, and a grant of all good Laws; nay, it contains a confirmation of those very Laws, Assurance which binds the King further than the Law can; First it binds his Affection, which is the greatest Bond between King and Subject, and that binds his Judgment also, nay, his Honour, and that not at home but abroad; the Royal Word of a King is the Ground of all Treaty; nay it binds his Conscience: This confirmation between both Houses is in nature of a vow; for my part I think it is the greatest advantage to rely on his Majesty's Word. He further added, this Debate was fitter to be done before the House, and not before the Committee, and that it was a "new Course to go to a Committee of the whole House.
Sir John Elliot.
Whereunto it was replied by Sir John Elliot, That the proceeding in a Committee, is more honourable and advantageous to the King and the House, for that way leads most to Truth, and it is a more open way, and where every Man may add his Reason, and make answer upon the hearing of other Men's Reasons and Arguments.
This being the general Sense, the House was turned into a Committee to take into consideration what was delivered to the King by the Speaker, and what was delivered to them by the Lord Keeper, and all other Messages, and the Committee was not to be bounded with any former order: The Key was brought up, and none were to go out without leave first asked.
Sir Edward Cook.
In the Debate of this business at the Committee, some were for letting the Bill rest: But Sir Edward Cook's Reasons prevailed to the contrary. "Was it ever known (said he) that general words were a sufficient satisfaction to particular grievances? Was ever a verbal Declaration of the King, Verbum Regni? When grievances be, the Parliament is to redress them. Did ever Parliament rely on Messages? They put up Petitions of their Grievances, and the King ever answered them: The King's Answer is very gracious, but what is the Law of the Realm, that is the question. I put no diffidence in His Majesty, the King must speak by a Record, and in Particulars, and not in General: Did you ever know the King's Message come into a Bill of Subsidies? All succeeding Kings will say, Ye must trust me as well as ye did my Predecessors, and trust my Messages; but Messages of love never came into a Parliament. Let us put up a Petition of Right: Not that I distrust the King, but that I cannot take his Trust, but in a Parliamentary way.
On Thursday 8 Maii, the Petition of Right was finished, and the Clause of Martial Law was added unto it, and it was delivered to the Lords at a Conference for their Concurrence; the which Conference was managed by Sir Edward Cook, and the same day, as to the matter of Supply, ordered, that the two first Subsidies should be paid 10. of July, one more 12. of October, another on 20. of Decemb. and the last 1. of March.
At the Conference, Sir Edward Cook thus expressed himself: "My Lords, it is evident what necessity there is, both in respect of your selves, and your Posterities, to have good Success in this business: We have acquainted your Lordships with the Reasons and Arguments, and after we have had some Conference, we have received from your Lordships Propositions; and it behoves me to give your Lordships some Reasons why you have not heard from us before now; for in the mean time, as we were consulting of this weighty business, we have received divers Messages from our great Sovereign the King, and they consisted "of Five parts.
- "1. That His Majesty would maintain all his Subjects in their just "freedom, both of their Persons and Estates.
- "2. That he will govern according to his Laws and Statutes.
- "3. That we should find much confidence in the Royal Word; I pray "observe that.
- "4. That we shall enjoy all our Rights and Liberties, with as much "freedom as ever any Subjects have done in former times.
- "5. That whether we shall think it fit, either by Bill or otherwise to go "on in this great business, his Majesty would be pleased to give way to it.
"These gracious Messages did so work upon our Affections, that we have taken them into deep Confideration. My Lords, when we had these Messages (I deal plainly, for so I am commanded by the House of Commons) we did consider what way we might go for our more secure way, nay yours; we did think it the safest way to go in a Parliamentary course, for we have a Maxim in the House of Commons, and written on the Walls of our House, That old ways are the safest and surest ways: And at last we did fall upon that, which we did think (if that your Lordships did consent with us) it is the most antient way of all, and that is, my Lords, via fausta, both to Majesty, to your Lordships and to our selves: For, my Lords, this is the greatest Bond that any Subject can have in open Parliament, Verbum Regis, this is an high point of Honour, but this shall be done by the Lords and Commons, and assented to by the King in Parliament; this is the greatest obligation of all, and this is for the King's honour, and our safety: Therefore, my Lords, we have drawn a form of a Petition, desiring your Lordships to concur with us therein; for we do come with an unanimous consent to all the House of Commons, and there is great reason your Lordships should do so, for your Lordships be involv'd in the same danger. And so I have done with the first part: And I shall now desire your Lordships leave, that I "may read that which I have so agreed on.
Here the Petition of Right was read; but we forbear to insert it as yet, because there were Propositions for alteration; and it is not perfect, till the Royal assent be given to it.
From the Eighth to the Twelfth of May, all publick businesses were laid aside. On Monday the Twelfth, the Lords had a Conference with the Commons, where the Lord Keeper made this Speech.
Lord Keeper's Speech, communicating a Letter from the King.
Gentlemen of the House of Commons,
"My Lords, having a most affectionate desire to maintain that good concurrence, that in this Parliament and others have been of late between both Houses, desired this Conference, to acquaint you, how and in what manner, they have proceeded in the Petition of Right that came from this House; and to let you know, that as soon as they have received it, they, with all care and expedition they possibly could, addressed themselves to consider thereof; and after good time spent in Debate in the whole House, they made a Committee to consider, whether retaining of the substance of the Petition, there might not be some words altered or put in to make it more sweet, to procure it a passable way to his Majesty; we know this must be Crowned by the King, and good must come to all the Kingdom by this course now taken. The Committee hath met, and hath propounded some small matters to be altered in some few words, to make it passable, and not in substance. And the Lords having this reported from their Committee, and heard it read in their House, resolved of nothing till they have your consent, yet they think it fitter to have it propounded to you, to consider whether there should be any alteration or no, and how the propounded "alterations may stand with your liking.
"Concerning the Commitment by the King and the Council, without expressing the cause, it was resolved by the Lords to debate it this morning, and as soon as they should have debated it, they purposed to have your concurrence with them before they resolved it; but at instant when they thought to have debated it, they received a Letter from his Majesty, which, they conceive, will give a satisfaction to both Houses in the main point. My Lords, desiring to keep that good concurrence begun, desired to communicate that Letter unto you, that you might take the same into your considerations, as they mean to do themselves: This Letter is "to be read unto you.
To the Right Trusty and Right Well-beloved, the Lords Spiritual and Temporal of the Higher House of Parliament.
His Majesty's Letter.
We being desirous of nothing more than the advancement of the Peace and Prosperity of our People, have given leave to free Debate upon the highest Points of our Prerogative Royal, which, in the time of our Predecessors, Kings and Queens of this Realm, were ever restrained as matters that they would not have discussed; and in other things we have been willing so far to descend to the desires of our good Subjects, as might fully satisfie all moderate minds, and free them from all just fears and jealousies, which those Messages which we have hitherto sent into the Commons House, will well demonstrate unto the World; yet we find it still insisted upon, that in no case whatsoever, should it never so nearly concern matters of State or Government, we, or our Privy-Council, have no power to commit any Man without the cause shewed; whereas it often happens, that should the cause be shewed, the service it self would thereby be destroyed and defeated, and the cause alledged must be such as may be determined by our Judges of our Courts of Westminster, in a legal and ordinary way of Justice; whereas the causes may be such, as those Judges have not capacity of Judicature, nor Rules of Law to direct and guide their Judgment in cases of that transcendent nature; which hapning so often, the very incroaching on that constant Rule of Government, for so many Ages, within this Kingdom practised, would soon dissolve the very Foundation and Frame of our Monarchy. Wherefore as to our Commons, we made fair Propositions, which might equally preserve the just Liberty of the Subject: So, my Lords, we have thought good to let you know, that without the overthrow of Sovereignty, we cannot suffer this Power to be impeached; notwithstanding, to clear our Conscience and just intentions, this we publish, That it is not in our heart, nor will we ever extend our Royal Power, lent unto us from God, beyond the just Rule of Moderation, in any thing which shall be contrary to our Laws and Customs, wherein the safety of our People shall be our only aim. And we do hereby declare our Royal pleasure and resolution to be, which, God willing, we shall ever constantly continue and maintain, That neither we, nor our Privy-Council, shall or will, at any time hereafter, commit or command to Prison, or otherwise restrain the Person of any for not lending Money to us, nor for any just Cause, which in our Conscience doth not concern the publick good and safety of us and our People, we will not be drawn to pretend any Cause, wherein our Judgment and Conscience is not satisfied with; base Thoughts, we hope, no Man can imagine will fall into our Royal breast; and that in all cases of this nature, which shall hereafter happen, we shall, upon the humble Petition of the Party, or address of our Judges unto us, readily and really express the true Cause of their Commitment or Restraint, so soon as with conveniency and safety the same is fit to be disclosed and expressed; and that in all Causes Criminal, of ordinary Jurisdiction, our Judges shall proceed to the Deliverance or Bailment of the Prisoner, according to the known and ordinary Rules of the Laws of this Land, and according to the Statutes of Magna Charta, and those other Six Statutes insisted upon, which we do take knowledge stand in full force, and which we intend not to abrogate and weaken, against the true intention thereof. This we have thought fit to signifie, the rather to shorten any long Debate upon this great question, the season of the Year being so far advanced, and our great Occasions of State not lending many more days for longer continuance of this Session of Parliament.
Given under our Signet at our Palace at Westminster, 20. Maii, the Fourth Year of our Reign.
The same day the King's Letter was communicated to the House of Commons, they laid it aside, and Sir Thomas Wentworth said it was a Letter of Grace, but the People will only like of that which is done in a Parliamentary way; besides, the Debate of it would spend much time, neither was it directed to the House of Commons; and the Petition of Right would clear all mistakes: For (said he) some give it out, as if the House went about to pinch the King's Prerogative. But the further debate of this matter took up several days.
May 17. The Lords propounded, at a Conference, an Addition to be made to the Petition of Right, which was delivered by the Lord Keeper, to this purpose:
The Lords Proposition at a Conference, about an addition to the Petition of Right.
"That whereas at the last Conference of both Houses, there were some things propounded that came from their Lordships, out of a desire the Petition might have the easier passage with his Majesty, not intending to violate in any manner the substance of the Petition, but it was then thought fit, that there was another part of the Petition, of as great importance and weight: My Lords, since the time of that Conference, have imploy'd themselves wholly to reduce the Petition to such a frame "and order, that may give both to you and them hope of acceptance.
"And after many deliberations, and much advice taken, my Lords have resolved to represent to you something which they have thought upon, yet not as a thing conclusive to them or you; and according to their desires (having mentioned it in the beginning) have held it fit to conclude of nothing, till that you be made acquainted with it, and that there may be a mature advisement between you and them, so that there "may be the happier conclusion in all their business.
"This being the determination of the Lords, that nothing that is now offered unto you should be conclusive, yet they thought it convenient "to present it unto you.
"This alteration (and not alteration) but addition, which they shall propound unto you, to be advised and conferred upon, which is no breach of the frame, they think it meet, if it shall stand with your liking, to be "put in the conclusion of the Petition, which I shall now read unto you.
The Lords addition to the Petition of Right.
We present this our humble Petition to your Majesty, with the care not only of preserving our own Liberties, but with due regard to leave intire that Sovereign Power wherewith your Majesty is trusted for the Protection, Safety, and Happiness of the People.
"This is the thing the Lords do present unto you, this Subject of this Conference concerning the adding of this in the conclusion of the Petition, and that they know that this is the new, and that you cannot presently give an Answer to it; therefore they desire that you do with some speed consider of it, and their Lordships will be ready this afternoon.
This Addition produced several Speeches.
"Let us look (said he) into the Records, and see what they are, what is Sovereign Power? Bodin saith, That it is free from any Condition, by this we shall acknowledge a Regal as well as a Legal Power: Let us give that to the King that the Law gives him, and no more.
"I am not able to speak to this question, I know not what it is: All our Petition is for the Laws of England, and this Power seems to be another distinct Power from the Power of the Law: I know how to add Sovereign to his Person, but not to his Power: And we cannot leave "to him a Sovereign Power: Also we never were possessed of it.
"We cannot admit of those words with safety, they are applicable to all the parts of our Petition: It is in the nature of a Saving, and by it we shall imply, as if we had incroached on his Prerogative; all the Laws we cite are without a Saving: And yet now after the violation of them, we must add a Saving: Also I have seen divers Petitions, and where the Subject claimed a Right, there I never saw a Saving "of this nature.
Sir Edward Cook.
"This is magnum in parvo, this is propounded to be a conclusion of our Petition: It is a matter of great weight; and, to speak plainly, it will overthrow all our Petition; it trenches to all parts of it: It flies at Loans, and at the Oath, and at Imprisonment, and Billeting of Soldiers; this turns all about again. Look into all the Petitions of former times, they never petitioned, wherein there was a Saving of the King's Sovereignty: I know that Prerogative is part of the Law, but Sovereign Power is no Parliamentary word: In my opinion, it weakens Magna Charta, and all our Statutes; for they are absolute without any saving of Sovereign Power: And shall we now add it, we shall weaken the Foundation of Law, and then the Building must needs fall; take we heed what we yield unto, Magna Charta is such a Fellow, that he will have no Sovereign. I wonder this Sovereign was not in Magna Charta, or in the Confirmations of it: If we grant this, by implication we give a Sovereign Power above all these Laws: Power in Law, is taken for a Power with force: The Sheriff shall take the Power of the County, what it means here, God only knows: It is repugnant to our Petition, that is a Petition of Right, grounded on Acts of Parliament: Our Predecessors could never endure a Salvo jure suo, no more than the Kings of old could endure for the Church, Salvo honore Dei & Ecclesiœ: We must not admit of it, and to qualifie it is impossible: Let us hold our Privileges according to the Law; that Power that is above this, is not fit for the King and People to have it disputed further. I had rather, for my part, have the Prerogative acted, and I my self to lie under it, "than to have it disputed.
Sir Thomas Wentworth.
"If we do admit of this Addition, we shall leave the Subject worse than we found him, and we shall have little thanks for our labour when we come home: Let us leave all Power to his Majesty, to punish Malefactors, but these Laws are not acquainted with Sovereign Power, we desire no new thing, nor do we offer to trench on his Majesty's Prerogative, we "may not recede from this Petition, either in part or in whole.
"To add a Saving is not safe, doubtful words may beget ill construction; and the words are not only doubtful words, but words "unknown to us, and never used in any Act or Petition before.
"Let us not go too hastily to the Question, said Mr. Selden: If there be any Objections, let any propound them, and let others answer them as they think good: If it hath no reference to our Petition, what doth it here? I am sure all others will say it hath reference, and so must we: How far it doth exceed all examples of former Times, no Man can shew me the like: I have made that search that fully satisfies me, and I find not another besides 28 of Eliz. We have a great many Petitions, and Bills of Parliament in all Ages, in all which we are sure no such thing is added: That Clause of the 28 of Edw. 1. it was not "in the Petition, but in the King's Answer.
"In Magna Charta there were no such Clauses, the Articles themselves are to be seen in a Library at Lambeth, in a Book of that Time, upon which the Law was made. There was none in the Articles in King John's Time, for these I have seen, there is no Saving. In the Statutes of Confirmatio Chartarum, is a Saving, les Antients Aids, that is, for file maryer, & pur faire fitz Chivalier, and for ransom. And in the Articles of King John in the Original Charter, which I can shew, there those three Aids were named therein, and they were all known: In the 25 of Edw. 3. there is a Petition against Loans, there is no Saving, and so in others: As for that Addition in the 28 of Edw. 1. do but observe the Petitions after Magna Charta, as 5 Edw. 3. they put up a Petition, whereas in Magna Charta it is contained, That none be imprisoned, but by due process of Law; those words are not in Magna Charta, and yet there is no Saving; and so in in the 28 of Edw. 3. and 36 and 37 and 42 of Edw. 3. all which pass by Petition, and yet there is no Saving in them: And there "are in them other words that are not in Magna Charta, and yet no Saving.
"For that that Mr. Speaker said, The K. was our heart, and ever shall be; but we then spake of the K's. Prerogative by it self, and we are bound to say so: But speaking of our Rights, shall we say we are not to be imprisoned, saving but by the King's Sovereign Power? Say my Lands (without any Title) be seized in the King's Hand, and I bring a Petition of Right, and I go to the King and say, I do by no means seek your Majesty's Right and Title; and after that, I bring a Petition or Monstrance de droit, setting forth my own Right and Title, and withal set down a Saving, that I leave intire his Majesty's Right, it would be improper. It was objected, That in the 28 of Edw. 1. in the end of Articuli super Chartas, which was a confirmation of Magna Charta, and Charta de Foresta, in the end there is a Clause, Savant le droit & Signiory; the words are extant "in that Roll that is now extant, but the Original Roll is not extant.
"In the 25 E. 3. there was a confirmation of the Charter in the 27 E. 3. the Parliament was called, and much stir there was about the Charter, and renewing the Articles; but then little was done. In 28 E. 1. the Commons by Petition or Bill, did obtain the Liberties and Articles at the end of the Parliament, they were extracted out of the Roll, and proclaimed abroad; the addition was added in the Proclamation: in the Bill there was no savant but afterwards it was put in: and to prove this, it is true, there is no Parliament Roll of that Year, yet we have Histories of that Time: In the Library at Oxford there is a Journal of a Parliament of that very Year which mentions so much; also in the publick Library at Cambridge there is a Manuscript that belonged to an Abbey, it was of the same Year 28 E. 1. and it mentions the Parliament and the Petitions, and Articulos quos petierunt sic confirmaverit Rex ut in fine adderet, Salvo jure Coronœ Regis, and they came by Proclamation in London when the People heard this Clause added in the end, they fell into execration for that Addition; and the great Earls that went away satisfied from the Parliament hearing of this, went to the King, and after it was cleared at the next Parliament. Now there is no Parliament Roll of this of that time, only in one Roll "in the end of E. 3. there is a Roll that recites it.
The Lords afterwards at a Conference tendred Reasons to fortify their Addition: which were briefly reported; That the Lord Keeper said,
"That the Lords were all agreed to defend and maintain the just Liberties of the Subject, and of the Crown, and that the word (Leave) was debated amongst them; and thereby they meant to give no new, but what was before: For the words, Soveraign Power, as he is a King he is a Sovereign, and must have Power; and he said the words were easier than the Prerogative: As for the word (that) which is a relative, and referred to that Power, that is for the safety of the People; and this, said he, can never grieve any Man: Being thus published, it is not Sovereign Power in general, but now in confutation of our Reasons, he faith, Magna Charta was not with a Saving; but, said he, You "pursue not the words in Magna Charta, and therefore it needs an Addition.
"As for the 28 of E. 3. he said there was a Saving, and an ill exposition cannot be made of this, and both Houses have agreed it in substance already; the Commons did it in a Speech delivered by our Speaker, and that we say we have not a thought to incroach on the King's Sovereignty; and why may you not add it in your Petition.
Upon this Report Mr. Mason readily spake his Opinion in manner following.
"In our Petition of Right to the King's Majesty, we mention the Laws and Statutes, by which it appeared, That no Tax, Loan, or the like, ought to be levied by the King, but by common assent in Parliament: That no Freeman ought to be imprisoned but by the Law of the Land; That no Freemen ought to be compelled to suffer Soldiers in his House. In the Petition we have expressed the breach of these Laws, and desire we "may not suffer the like; all which we pray as our Rights and Liberties.
"The Lords have proposed an Addition to this Petition, in these words.
"We humbly present this Petition to your Majesty, not only with a care of our own Liberties, but with a due regard to leave intire that Soveraign Power wherewith your Majesty is intrusted for the Protection, Safety "and Happiness of your People.
"And whether we shall consent unto this addition, is the subject of this days discourse: and because my Lord Keeper at the Conference declared their Lordships had taken the words of the Petition apart, I shall do so too. The word (Leave) in a Petition, is of the same nature as (Saving) in a Grant, or Act of Parliament; when a Man grants but part of a thing he saves the rest; when he petitions to be restored but to part, he leaveth the rest: Then in the end of our Petition the word [Leave] will imply, that something is to be left of that, or at least with a reference to what "we desire.
"The word [Intire] is very considerable, a Conqueror is bound by no Law, but hath Power dare Leges, his Will is a Law; and altho' William the Conqueror, at first to make his way to the Crown of England the more easy, and the possession of it more sure, claimed it by Title; but afterward, when there were no powerful Pretenders to the Crown, the Title of Conquest (to introduce that absolute power of a Conqueror) was claimed, and that Statute of Magna Charta, and other Statutes mentioned in our Petition, do principally limit that Power. I hope it is as lawful for me to cite a Jesuit, as it is for Dr. Manwaring to falsify him; Suares, in his first Book, de Legibus, cap. 17. delivered his Opinion in these words, Amplitudo & restrictio potestatis Regum circa ea quœ per se mala vel injusta non sunt, pendet ex arbitrio hominum & ex ambigua conventione vel pacto inter reges & regnum. And he farther expresseth his opinion, That the King of Spain was so absolute a Monarch, that he might impose Tribute without consent of his People, until about two Hundred Years since, when it was concluded between him and his People, that without consent of his People by Proxies, he should not impose any Tribute. And Suares Opinion is, That by that agreement, the Kings of Spain are bound to impose no Tribute without consent.
"And this Agreement that Author calls a restraining of that Sovereign Power, the Statutes then mentioned in our Petition, restraining that ablute Power of Conqueror; if we recite those Statutes, and say, we leave the Sovereign Power entire, we do take away that restraint which is the vertue and strength of those Statutes, and set at liberty the claim of the Sovereign Power of a Conqueror, which is to be limited and restrained "by no Laws: This may be the danger of the word [Intire.]
"The next word delivered by the Lords as observable, is the Particle [That] because it was said, That all Sovereign Power is not mentioned to be left, but only (that) with which the King is trusted for our protection, safety, and happiness: But I conceive this to be an exception of all Sovereign Power; for all Sovereign Power in a King, is for the protection, safety, and happiness of his People: If all Sovereign Power be excepted, you may easily judge the consequence, all Loans and Taxes "being imposed by colour of that Sovereign Power.
"The next word is [Trusted] which is very ambiguous, whether it be meant trusted by God only as a Conqueror, or by the People also, as King, which are to govern also according to Laws, ex pacto. In this point I will not presume to adventure further, only I like it not, by reason of the doubtful Exposition it admits. I have likewise considered the Proposition it self, and therein I have fallen upon the Dilemma, that this addition shall be construed either to refer unto the Petition, or not: If it do refer unto the Petition, it is merely useless and unnecessary, and unbefitting the Judgment of this grave and great Assembly to add to a Petition of this weight. If it hath reference unto it, then it destroys not only the vertue and strength of our Petition of Right, but our Rights themselves; for the addition being referred to each part of the Petition, will necessarily receive this construction: That none ought to be compelled to make any Gift, Loan, or such like charge, without common consent or Act of Parliament, unless it be by the Sovereign Power, with which the King is trusted for the Protection, Safety, and Happiness of his People.
"That none ought to be compelled to sojourn or billet Soldiers, unless by the same Sovereign Power, and so of the rest of the Rights contained in the Petition: And then the most favourable construction will be, that the King hath an ordinary Prerogative, and by that he cannot impose Taxes, or Imprison; that is, he cannot impose Taxes at his will, to imploy them as he pleaseth; but that he hath an extraordinary and transcendent Sovereign Power for the Protection and Happiness of his People, and for such purpose he may impose Taxes, or billet Soldiers, as he pleaseth; and we may assure our selves, that hereafter all Loans, Taxes, and billeting of Soldiers, will be said to be for the protection, safety, and happiness of the People; certainly hereafter it will be conceived, that an House of Parliament would not have made an unnecessary addition to this Petition of Right, and therefore it will be resolved, That the Addition hath relation to the Petition, which will have such operation as I have formerly declared; and I the rather fear it, because the late Loan and Billeting have been declared to have been by Sovereign Power for the good of our selves; and if it be doubtful whether this Proposition hath reference to the Petition or not, I know who shall judge whether Loans or Imprisonments hereafter be by that Sovereign Power or not?
"A Parliament, which is made a Body of several Writs, and may be dissolved by one Commission, cannot be certain to decide this question. We cannot resolve that, that the Judges shall determine the words of the King's Letter read in this House, expressing the cause of Commitment may be such, that the Judges have not capacity of Judicature, no Rules of Law to direct and guide their Judgments in Cases of that transcendent Nature, the Judges then, and the Judgments, are easily conjectured it hath been confessed by the King's Council, that the Statute of Magna Charta binds the King, it binds his Sovereign Power; and here is an Addition of Saving the King's Sovereign Power: I shall endeavour to give some Answer to the Reasons given by the Lords.
"The First is, That it is the Intention of both Houses, to maintain the just Liberty of the Subject, and not to diminish the just Power of the King; and therefore the expression of that Intention in this Petition, cannot prejudice us. To which I answer,
"First, That our Intention was, and is, as we then professed, and no Man can assign any Particular in which we have done to the contrary; neither have we any way transgressed in that kind in this Petition: And if we make this Addition to the Petition, it would give some Intimation, that we have given cause or colour of offence therein; which we deny, and which if any Man conceive so, let him assign the Particular, that we may give answer thereunto.
"By our Petition, we only desire our particular Rights and Liberties to be confirmed to us; and therefore it is not proper for us in it to mention Sovereign Power in general, being altogether impertinent to the matter in the Petition.
"There is a great difference between the words of the Addition, and the words proposed therein, for reason, viz. between just Power which may be conceived to be limited by Laws, and Sovereign Power, which is supposed to be transcendent and boundless.
"The second Reason delivered by their Lordships, was, That the King is Sovereign; that as he is Sovereign, he hath Power, and that that Sovereign Power is to be left: For my part, I would leave it so, as not to mention it, but if it should be expressed to be left in this Petition, as it is proposed, it must admit something to be left in the King of what we pray, or at least admit some Sovereign Power in his Majesty, in these Privileges which we claim to be our Right, which would frustrate our Petition, and destroy our Right, as I have formerly shewed.
"The third Reason given from this Addition, was, That in the Statute of Articuli super Chartas, there is a saving of the Seigniory of the Crown.
"To which I give these Answers, That Magna Charta was confirmed above thirty Times, and a general Saving was in none of these Acts of Confirmation, but in this only; and I see no cause we should follow one ill, and not thirty good Precedents; and the rather, because that Saving produced ill effects, that are well known.
"That Saving was by Act of Parliament; the conclusion of which Act is, That in all those Cases the King did well, and all those that were at the making of that Ordnance did intend, that the Right and Seigniory of the Crown should be saved: By which it appears, that the Saving was not in the Petition of the Commons, but added by the King; for in the Petition, the King's will is not expressed.
"In that Act the King did grant, and depart with, to his People, divers Rights belonging to his Prerogative, as in the first Chapter he granted, That the People might chuse three Men, which might have power to hear and determine Complaints, made against those that offended in any point of Magna Charta, tho' they were the King's Officers, and to Fine and Ransom them: And in the 8th, 12th, and 19th Chapter of that Statute, the King departed with other Prerogatives; and therefore there might be some reason of adding of, that Sovereign, by the King's Council: But in this Petition we desire nothing of the King's Prerogative, but pray the enjoying of our proper and undoubted Rights and Privileges; therefore there is no cause to add any words, which may imply a saving of that which concerns not the matter in the Petition.
"The fourth reason given by their Lordships, was, That by the mouth of our Speaker we have this Parliament declared, That it was far from our Intention to incroach upon his Majesty's Prerogative, and that therefore it could not prejudice us, to mention the same resolution in an Addition to this Petition.
"To which I answer, That that Declaration was a general Answer to a Message from his Majesty to us, by which his Majesty expressed, that he would not have his Prerogative straitned by any new Explanation of Magna Charta, or the rest of the Statutes: And therefore that expression of our Speakers was then proper, to make it have reference to this Petition, there being nothing therein contained but particular Rights of the Subject, and nothing at all concerning his Majesty's Prerogative.
"Secondly, That Answer was to give his Majesty satisfaction of all our Proceedings in general, and no Man can assign any particular, in which we have broken it, and this Petition justifies it self, that in it we have not offended against the Protestation: And I know no reason but that this Declaration should be added to all our Laws we shall agree on this Parliament, as well as to this Petition.
"The last Reason given, was, That we have varied in our Petition from the words of Magna Charta; and therefore it was very necessary, that a Saving should be added to the Petition.
"I answer, That in the Statute 5 E. 3. 25 E. 3. 28 E. 3. and other Statutes, with which Magna Charta is confirmed: The words of the Statute of Explanation, differ from the words of Magna Charta it self, the words of some of the Statutes of Explanation being, that no Man ought to be apprehended, unless by Indictment, or due process of Law; and the other Statutes differing from the words of Magna Charta, in many other particulars, and yet there is no Saving in those Statutes, much less should there be any in a Petition of Right. These are the Answers I have conceived to the Reasons of their Lordships, and the Exposition I apprehend must be made of the proposed words, being added to our Petition. And therefore I conclude, that in my Opinion we may not consent to this Addition, which I submit to better Judgments.
The Commons afterwards appointed Mr. Glanvile and Sir Henry Martin, to manage another Conference to be had with the Lords, concerning the said matter, and to clear the Sense of the Commons in that point: The one argued the Legal, the other the Rational part; and though the matter delivered, by the length of it, may seem tedious to the Reader, and some matters, spoken of before, repeated again; yet if the Reader observe the Language and Style, as well as the subject Matter, perhaps it will be no penance unto him.
Mr. Glanvile's Speech in a full Committee of both Houses of Parliament, May 23. 1628. in the Painted Chamber at Westminster.
Mr. Glanvile's Speech at a Committee of both Houses, concerning Sovereign Power.
"My Lords, I have in charge, from the Commons House of Parliament, (whereof I am a Member) to express this day before your Lordships some part of their clear Sense, touching one point that hath occurred in the great Debate, which hath so long depended in both Houses.
"I shall not need many words to induce or state the question, which I am to handle in this free Conference. The subject matter of our meeting is well known to your Lordships, I will therefore only look so far back upon it, and so far recollect summarily the proceedings it hath had, as may be requisite to present clearly to your Lordship's considerations, the nature and consequence of that particular wherein I must insist.
"Your Lordships may be pleased to remember, how that the Commons in this Parliament have framed a Petition to be presented to his Majesty, a Petition of Right rightly composed, relating nothing but Truth, desiring nothing but Justice; a Petition justly occasioned, a Petition necessary and fit for these times, a Petition founded upon solid and substantial Grounds, the Laws and Statutes of this Realm, sure Rocks to build upon; a Petition bounded within due limits, and directed upon right ends, to vindicate some lawful and just Liberties of the free Subjects of this Kingdom, from the prejudice of violations past, and to secure them from future Innovations.
"And because my following discourse must reflect chiefly, if not wholly upon the matter of this Petition, I shall here crave leave shortly to open to your Lordships the distinct parts whereof it doth consist, and those are four.
"The first concerns Levies of Monies, by way of Loans or otherwise, for his Majesty's supply; declaring, that no Man ought, and praying that no Man hereafter be compelled to make or yield any Gift, Loan, Benevolence, Tax, or such like Charge, without common consent by Act of Parliament.
- "2. The second is concerning that Liberty of Person, which rightfully belongs to the free Subjects of this Realm, expressing it to be against the Tenure of the Laws and Statutes of the Land, that any Freeman should be imprisoned without cause shewed; and then reciting how this Liberty, amongst others, hath lately been infringed, it concludeth with a just and necessary desire, for the better clearing and allowance of this Priviledge for the future.
- "3. The third declareth the Unlawfulness of Billeting or placing Soldiers or Marriners to sojourn in free Subjects Houses against their wills and prayeth Remedy against that grievance.
- "4. The fourth and last aimeth at Redress touching Commissions, to proceed to the Trial and Condemnation of Offenders, and causing them to be executed and put to Death by the Law Marshal, in times and places, when and where, if by the Laws and Statutes of the Land they had deserved Death, by the same Laws and Statutes also they might, and by none other ought to be adjudged and executed.
"This Petition the careful House of Commons, not willing to omit any thing pertaining to their Duties, or might advance their moderate and just ends, did heretofore offer up unto your Lordships consideration, accompanied with an humble desire, That in your Nobleness and Justice you would be pleased to join with them in presenting it to his Majesty, that so coming from the whole Body of the Realm, the Peers and People, to him that is the Head of both, our gracious Sovereign, who must crown the Work, or else all our labour is in vain; it might, by your Lordships concurrence and assistance, find the more easy passage, and obtain the better Answer.
"Your Lordships, as your manner is in cases of so great importance, were pleased to debate and weigh it well, and thereupon you propounded to us some few amendments (as you termed them) by way of alteration, alledging that they were only in matters of form, and not of substance; and that they were intended to none other end, but to sweeten the Petition, and make it the more passable with his Majesty.
"In this the House of Commons cannot but observe that fair and good respect which your Lordships have used in your proceedings with them, by your concluding or voting nothing in your House, until you had imparted it unto them; whereby our meetings about this business have been justly stiled Free Conferences, either Party repairing hither disengaged to hear and weigh the others Reasons, and both Houses coming with a full Intention, upon due consideration of all that can be said on either side, to join at last in resolving and acting that which shall be found most just and necessary for the honour and safety of his Majesty and the whole Kingdom.
"And touching those propounded Alterations, which were not many, your Lordships cannot but remember, that the House of Commons have yielded to an Accommodation, or change of their Petition in two Particulars, whereby they hope your Lordships have observed, as well as ye may, they have not been affected unto words or phrases, nor overmuch abounding in their own Sense; but rather willing to comply with your Lordships in all indifferent things.
"For the rest of your proposed Amendments, if we do not misconceive your Lordships, as we are confident we do not, your Lordships, of your selves, have been pleased to relinquish them with a new overture, for one only Clause to be added in the end or foot of the Petition, whereby the work of this Day is reduced to one simple Head, whether that Clause shall be received or not?
"This yielding of the Commons in part unto your Lordships, of other points by you somewhat insisted upon, giveth us great assurance, that our ends are one; and putteth us in hope, that, in conclusion, we shall concur, and proceed unanimously to seek the same ends, by the same means.
"The Clause propounded by your Lordships to be added to the Petition, is this:
We humbly present this Petition to your Majesty, not only with a care for preservation of Liberties, but with a due regard to leave intirc that Severeign Power wherewith your Majesty is intrusted for the Protection, Safety, and Happiness of your People.
"A Clause specious in shew, and smooth in words, but in effect and consequence most dangerous, as I hope to make most evident; however, coming from your Lordships, the House of Commons took it into their considerations, as became them, and apprehending upon the first Debate, that it threatned Ruin to the whole Petition, they did heretofore deliver some Reasons to your Lordships, for which they then desired to be spared from admitting it.
"To these Reasons, your Lordships offered some Answers at the last Meeting; which having been faithfully reported to our House, and there debated, as was requisite for a business of such Weight and Importance, I must say truly to your Lordships, yet with due reverence to your Opinions, the Commons are not satisfied with your Arguments; and therefore they have commanded me to recollect your Lordships Reasons for this Clause, and in a fair Reply to let you see the Causes why they differ from you in Opinion.
"But before I come to handle the Particulars wherein we dissent from your Lordships, I will in the first place take Notice yet a little further of that general wherein we all concur; which is, That we desire not (neither do your Lordships) to augment or dilate the Liberties and Privileges of the Subjects beyond the just and due Bounds; nor to incroach upon the Limits of his Majesty's Prerogative Royal; and as in this your Lordships, at the last Meeting, expressed clearly your own Senses, so were your Lordships not mistaken in collecting the concurrent Sense and Meaning of the House of Commons; they often have protested they do, and ever must protest, That these have been, and shall be the bounds of their desires, to demand and seek nothing, but that which may be fit for dutiful and loyal Subjects to ask, and for a gracious and just King to grant; for as they claim by Laws some Liberties for themselves, so do they acknowledge a Prerogative, a high and just Prerogative belonging to the King, which they intend not to diminish. And now, my Lords, being assured, not by strained Inferences, or obscure Collections, but by the express and clear Declarations of both Houses, that our ends are the fame; it were a miserable unhappiness, if we should fail in finding out the means to accomplish our desires.
"My Lords, the Heads of those particular Reasons which you insisted upon the last Day, were only these:
"First, You told us, that the word [Leave] was of such Nature, that it could give no new thing to his Majesty.
- "2. That no just Exception could be taken to the words [Sovereign Power] for that as his Majesty is a King, so he is a Sovereign; and as he is a Sovereign, so he hath Power.
- "3. That the Sovereign Power mentioned in this Clause, is not absolute, or indefinite, but limited and regulated by the Particle [That] and the word [Subsequent] which restrains it to be applied only for Protection, Safety, and Happiness of the People, whereby he inferred, there could be no danger in the allowance of such Power.
- "4. That this Clause contained no more in substance, but the like expressions of our meanings in this Petition, which we had formerly signified unto his Majesty by the mouth of Mr. Speaker, that we no way intended to incroach upon his Majesty's Sovereign Power or Prerogative.
- "5. That in our Petition we have used other words, and of larger extent touching our Liberties, than are contained in the Statutes whereon it is grounded: In respect of which Inlargement, it was fit to have some express, or implied Saving, or Narrative, Declaratory for the King's Sovereign Power, of which Narrative alledge this Clause to be.
"Lastly, Whereas the Commons, as a main Argument against the Clause, had much insisted upon this, that it was unprecedented, and unparliamentary in a Petition from the Subject, to insert a Saving for the Crown: Your Lordships brought for Instance to the contrary the two Statutes of the 25 E. 1. commonly called, Confirmatio Chartarum, and 28 E. 1. known by this name of Articuli super Chartas; in both which Statutes there are, Saving is for the Kings.
"Having thus reduc'd to your Lordships memories, the effects of your own reasons; I will now, with your Lordships favour, come to the points of our Reply, wherein I most humbly beseech your Lordships to weigh the Reasons which I shall present, not as the sense of my self, the weakest Member of our House, but as the genuine and true sense of the whole House of Commons, conceived in a business there debated with the greatest gravity and solemnity, with the greatest concurrence of opinions and unanimity that ever was in any business maturely agitated in that House. I shall not peradventure follow the method of your Lordships recollected Reasons in my answering to them, nor labour to urge many Reasons. It is the desire of the Commons, that the weight of their Arguments should recompence (if need be) the smalness of their number. And, in conclusion, when you have heard me through, I hope your Lordships shall be enabled to collect clearly out of the frame of what I shall deliver, that in some part or other of my discourse there is a full and satisfactory Answer, given to every particular Reason or Objection of your Lordships.
"The Reasons that are now appointed to be presented to your Lordships, are of two kinds, Legal and Rational, of which these of the former sort are allotted to my charge; and the first of them is thus.
"The Clause now under question, if it be added to the Petition, then either it must refer, or relate unto it, or else not; if it have no such reference, is it not clear that it is needless and superfluous? And if it have such reference, is it not clear, that then it must needs have an operation upon the whole Petition, and upon all the parts of it?
"We cannot think that your Lordships would offer us a vain thing, and therefore taking it for granted, that if it be added, it would refer to the Petition: Let me beseech your Lordships to observe with me, and with the House of Commons, what Alteration and Qualification of the same it will introduce.
"The Petition of it self, simply, and without this Clause, declareth absolutely the Rights and Priviledges of the Subject, in divers points; and amongst the rest touching the Levies of Monies, by way of Loans or otherwise, for his Majesty's supply, That such Loans and other charges of the like Nature, by the Laws and Statutes of this Land, ought not to be made or laid without common consent by Act of Parliament: But admit this Clause to be annexed with reference (to the Petition) and it must necessary conclude and have this Exposition, That Loans and the like Charges (true it is ordinarily) are against the Laws and Statutes of the Realm, unless they be warranted by Sovereign Power, and that they cannot be commanded or raised without assent of Parliament, unless it be by Sovereign Power: What were this but to admit a Sovereign Power in the King above the Laws and Statutes of the Kingdom?
"Another part of this Petition is, That the free Subjects of this Realm ought not to be imprisoned without cause shewed: But by this Clause a Sovereign Power will be admitted, and left entire to his Majesty, sufficient to controul the force of Law, and to bring in this new and dangerous Interpretation, That the free Subjects of this Realm ought not by Law to be imprisoned without Cause shewed, unless it be by Sovereign Power.
"In a word, This Clause, if it should be admitted, would take away the effect of every part of the Petition, and become destructive to the whole: For thence will be the Exposition touching the Billeting of Soldiers and Marriners in Freemens Houses against their wills; and thence will be the Exposition touching the Times and Places for Execution of the Law Marshal, contrary to the Laws and Statutes of the Realm.
"The Scope of this Petition, as I have before observed, is not to amend our case, but to restore us to the same State we were in before; whereas, if this Clause be received, in stead of mending the condition of the poor Subjects, whose Liberties of late have been miserably violated by some Ministers, we shall leave them worse than we found them; in stead of curing their wounds, we shall make them deeper. We have set bounds to our desires in this great business, whereof one is not to diminish the Prerogative of the King, by mounting too high; and if we bound our selves on the other side with this limit, not to abridge the lawful Priviledges of the Subject, by descending beneath that which is meet, no Man, we hope, can blame us.
"My Lords, as there is mention made in the additional Clause of Sovereign Power, so is there likewise of a Trust reposed in his Majesty, touching the use of Sovereign Power.
"The word Trust is of great Latitude, and large Extent, and therefore ought to be well and warily applied and restrained, especially in the Case of a King: There is a trust inseparably reposed in the Persons of the Kings of England, but that trust is regulated by Law; for example, when Statutes are made to prohibit things not mala in se, but only mala quia prohibita, under certain Forfeitures and Penalties, to accrue to the King and to the Informers that shall sue for the breach of them: The Commons must, and ever will acknowledge, a Regal and Sovereign Prerogative in the King, touching such Statutes, that it is in his Majesty's absolute and undoubted Power, to grant Dispensations to particular persons, with the Clauses of Non obstante, to do as they might have done before those Statutes, wherein his Majesty conferring grace and favour upon some, doth not do wrong to others; but there is a difference between those Statutes, and the Laws and Statutes whereon the Petition is grounded: by those Statutes the Subject hath no interest in the penalties, which are all the Fruit such Statutes can produce, until by Suit or information commenced, he become entituled to the particular forfeitures; whereas the Laws and Statutes mentioned in our Petition, are of another nature; there shall your Lordships find us to rely upon the good old Statute, called Magna Charta, which declareth and confirmeth the antient Common Laws of the Liberties of England: There shall your Lordships also find us to insist upon divers other most material Statutes, made in the time of King Edward 4. and Edward 3. and other famous Kings, for explanation and ratification of the lawful Rights and Privileges, belonging to the Subjects of this Realm: Laws not inflicting Penalties upon Offenders, in malis prohibitis, but Laws declarative or positive, conferring or confirming ipso facto, an inherent Right and interest of Liberty and freedom in the Subjects of this Realm, as their Birthrights, and Inheritance descendable to their Heirs and Posterity; Statutes incorporate into the Body of the Common Law, over which (with reverence be it spoken) there is no trust reposed in the King's Soveraign Power, or Prerogative Royal to enable him to dispense with them, or to take from his Subjects that Birthright or Inheritance which they have in their Liberties, by virtue of the Common Law, and of these Statutes.
'But if this Clause be added to our Petition, we shall then make a dangerous overture to confound this good destination touching what Statutes the King is trusted to controul by dispensations, and what not; and shall give an intimation to posterity, as if it were the opinion both of the Lords and Commons assembled in this Parliament, that there is a Trust reposed in the King, to lay aside by his Soveraign Power in some emergent cases, as well of the Common Law, and such Statutes as declare or ratify the Subjects Liberty, or confer Interest upon their persons, as those other penal Statutes of such nature, as I have mentioned before; which as we can by no means admit, so we believe assuredly, that it is far from the desire of our most Gracious Soveraign, to affect so vast a Trust, which being transmitted to a Successor of a different temper, might enable him to alter the whole frame and fabrick of the Commonwealth, and to dissolve that Government whereby this Kingdom hath flourished for so many years and ages, under His Majesty's most Royal Ancestors and Predecessors.
'Our next reason is, that we hold it contrary to all course of Parliament, and absolutely repugnant to the very nature of a Petition of Right, consisting of particulars, as ours doth, to clog it with a general Saving or Declaration, to the weakening of the Right demanded; and we are bold to renew with some confidence our Allegation, that there can be no Precedent shewed of any such Clause in any such Petitions in times past.
'I shall insist the longer upon this particular, and labor the more carefully to clear it, because your Lordships were pleased the last day to urge against us the Statutes of 25 and 28 of E. 1. as arguments to prove the contrary, and seemed not to be satisfied with that which in this point we had affirmed. True it is, that in those Statutes there are such Savings as your Lordships have observed; but I shall offer, you a clear Answer to them, and to all other Savings of like nature that can be found in any Statutes whatsoever.
'First, in the general, and then I shall apply particular Answers to the particulars of those two Statutes, whereby it will be most evident, that those examples can no ways suit with the matter now in hand. To this end it will be necessary, that we consider duly what that question is, which indeed concerneth a Petition, and not an Act of Parliament: This being well observed, by shewing unto your Lordships the difference between a Petition for the Law, and the Law ordained upon such a Petition, and opening truly and perspicuously the course that was holden in framing of Statutes before 2 Hen. 5. different from that which ever since then hath been used, and is still in use amongst us, and by noting the times wherein these Statutes were made, which was about one hundred years before 2 H. 5. besides the differences between these Savings and this Clause; I doubt not but I shall give ample satisfaction to your Lordships, that the Commons, as well in this, as in all their other Reasons, have been most careful to rely upon nothing but that which is most true and pertinent.
'Before the second year of King H. 5. the course was thus: When the Commons were Suiters for a Law, either the Speaker of their House by word of mouth from them, the Lords House joyning with them, or by some Bill in writing, which was usually called their Petition, moved the King, to ordain Laws for the redress of such mischiefs, or inconveniences as were found grievous unto the people.
'To these Petitions the King made answer as he pleased, sometimes to part, sometimes to the whole, sometimes by denial, sometimes by assent, sometimes absolutely, and sometimes by qualification. Upon these Motions and Petitions, and the Kings Answers to them, was the Law drawn up and ingrossed in the Statute-Roll to bind the Kingdom; but this inconvenience was found in this course, that oftentimes the Statutes thus framed, were against the sense and meaning of the Commons, at whose desires they were ordained; and therefore in the 2 H. 5. finding that it tended to the violation of their Liberty and Freedom, whose Right it was, and ever had been, that no Law should be made without their assent; they then exhibited a Petition to the King, declaring their Right in this particular, praying, that from thenceforth no Law might be made or ingrossed as Statutes, by additions or diminutions to their Motions, or Petitions, that should change their sense, or intent, without their assent; which was accordingly established by Act of Parliament, ever since then the Right hath been as the use was before, that the King taketh the whole, or leaveth the whole of all Bills or Petitions, exhibited for the obtaining of Laws.
'From this course, and from the time when first it became constant and setled, we conclude strongly, that it is no good Argument, because ye find Savings in Acts of Parliament before the second of H. 5. that before those Savings were in the Petitions that begat those Statutes; for if the Petitions for the two Loans so much insisted upon (which Petitions, for any thing we know, are not now extant) were never so absolute, yet might the King according to the usage of those times, insert the Savings in his Answers, which passing from thence into the Statute-Roll, do only give some little colour, but are not proof at all that the Petitions also were with Savings.
'Thus much for the general; to come now to the particular Statute of 25 of Edw. 1. which was a confirmation of Magna Charta, with some provision for the better execution of it, as Common Law, which words are worth the noting.
'It is true, that Statute hath also a clause to this effect, That the King or his Heirs from thenceforth should take no Aids, Taxes, or Prices of his Subjects, but by common Assent of all the Realm, saving the antient Aids and Prices due and accustomed.
'This Saving, if it were granted (which is not, nor cannot be proved) that it was as well in the Petition as in the Act: yet can it no way imply, that it is either fit or safe, that the Clause now in question should be added to our Petition: for the nature and office of a Saving, or Exception, is to exempt particulars out of a general, and to ratify the Rule in things not exempted, but in no sort to weaken or destroy the general Rule it self.
'The Body of that Law was against all Aids, and Taxes, and Prices in general, and was a confirmation of the Common Law, formerly declared by Magna Charta; the Saving was only of Aids and Prices in particular, so well described and restrained by the words, Antient and Accustomed, that there could be no doubt what could be the clear meaning and extent of that Exception; for the King's Right to those antient Aids, intended by that Statute to be saved to him, as well known in those days, and is not yet forgotten.
'These Aids were three, from the King's Tenants by Knight's Service, due by the Common Law, or general Custom of the Realm; Aid to ransome the King's Royal Person, if unhappily he should be taken Prisoner in the Wars; Aid to make the King's eldest Son a Knight, and Aid to marry the King's eldest Daughter once, but no more; and that those were the only Aids intended to be saved to the Crown by that Statute, appeareth in some clearness by the Charter of King John, dated the Runningmede the 15 of June in the fifth year of his Reign, wherein they are enumerated with an exclusion of all other Aids whatsoever. Of this Charter I have here one of the Originals, whereon I beseech your Lordships to cast your eyes, and give me leave to read the very words which concern this point. These words (my Lords) are thus: Nullum scatigium vel auxilium ponatur in Regno nostro, nisi per commune Consilium Regni nostri, nisi ad Corpus nostrum redimendum, & primogenitum filium nostrum militem faciendum, & ad filiam nostram primogenitam semel maritandam, & ad hoc non fiat nisi rationabile auxilium.
'Touching Prices, the other thing excepted by this Statute, it is also of a particular Right to the Crown so well known, that it needeth no description, the King being in possession of it by every days usage.
'It is to take one Tun of Wine before the Mast, and another behind the Mast, of every Ship bringing in above twenty Tuns of Wine, and here discharge them by way of Merchandize.
'But our Petition consisteth altogether of particulars, to which if any general Saving, or words amounting to one, should be annexed, it cannot work to confirm things not excepted which are none, but to confound things included, which are all the parts of the Petition; and it must needs beget this dangerous Exposition, that the Rights and Liberties of the Subject, declared and demanded by this Petition, are not theirs absolutely, but sub modo, not to continue always, but only to take place when the King is pleased not to exercise that Soveraign Power, where with this Clause admitted he is trusted for the protection, safety, and happiness of his people. And thus that Birthright and Inheritance, which we have in our Liberties, shall by our own assents, be turned into a meer Tenancy at will and sufferance.
'Touching the Statute of 28 Edw. 1. Articuli super chartas, the scope of that Statute, among other things, being to provide for the better observing and maintaining of Magna Charta, hath in it nevertheless two Savings for the King; the one particular, as I take it, to preserve the antient Prices, due and accustomed, as of Wines, and other Goods; the other general, Seigniory of the Crown in all things.
'To these two Savings, besides the former answers, which may be for the most part applied to this Statute as well as to the former, I add these further Answers: The first of these two Savings, is of the same prisage of Wines which is excepted in the 25 Edw. 1. but in some more clearness; for that here the word (Wines) is expresly annexed to the word (Prices) which I take for so much to be in Exposition of the former Law: And albeit these words (and of other Goods) be added, yet do I take it to be but a particular Saving, or exception, which being qualified with the words (antient, due, and accustomed) is not very dangerous, nor can be understood of Prices or Levies upon Goods of all sorts at the King's will and pleasure, but only of the old and certain Customs upon Wool, Woolfels, and Leather, which were due to the Crown long before the making of this Statute.
'For the latter of the two Savings in this Act, which is of the more unusual nature, and subject to the more exception; it is indeed general, and if we may believe the concurrent Relations of the Histories of those times, as well as those that are now Printed, as those that remain only in Manuscripts, it gave distaste from the beginning, and wrought no good effect, but produced such distempers and troubles in the State, as we wish may be buried in perpetual oblivion; and that the like Saving in these and future times may never breed the like disturbance: For from hence arose a jealousy, that Magna Charta, which declared the antient Right of the Subject, and was an absolute Law in it self, being now confirme'd by a latter Act, with this addition of a general Saving; for the King's Right in all things by the Saving was weakned, and that made doubtful, which was clear before. But not to depart from our main ground, which is, that Savings in old Acts of Parliament, before 2 H. 5. are no proof that there were the like Savings in the Petitions; for those Acts, let me observe unto your Lordships, and so leave this point, That albeit this Petition, whereon this Act of 28 Edw. 1. was grounded, be perished; yet hath it pleased God, that the very Frame and Context of the Act it self, as it is drawn up, and entred upon the Statute-Roll, and printed in our Books, doth manifestly impart, that this Saving came in by the King's Answer, and was not in the original Petition of the Lords and Commons; for it cometh in at the end of the Act after the words (le Roy le veut) which commonly are the words of the Royal assent to an Act of Parliament. And though they be mixed and followed with other words, as though the King's Council, and the rest who were present at the making of this Ordnance, did intend the same Saving; yet is not that Conclusive, so long as by the form of those times, the King's Answer working upon the materials of the Petition, might be conceived by some to make the Law effectual, though varying from the frame of the Petition.
'The next Reason which the Commons have commanded me to use, for which they still desire to be spared from adding this Clause to their Petition, is this: this offensive Law of 28 E. 1. which confirmed Magna Charta, with a Saving, rested not long in peace, for it gave not that satisfaction to the Lords or People, as was requisite they should have in a case so nearly concerning them: And therefore about thirty three, or thirty four of the same King's Reign, a latter Act of Parliament was made, whereby it was enacted, That all men should have their Laws, and Liberties, and free Customs, as largely and wholly as they had used to have at any time, when they had them best; and if any Statutes had been made, or any Customs brought in to the contrary, that all such Statutes and Customs should be void.
'This was the first Law which I call now to mind, that restored Magna Charta to the original purity wherein it was first molded, albeit it hath since been confirmed above twenty times more by several Acts of Parliament, in the Reigns of divers most just and gracious Kings, who were most apprehensive of their Rights, and jealous of their Honours, and always without Savings; so as if between 28 and 34 Edw. 1. Magna Charta stood blemished with many Savings of the King's Rights or Seigniory, which might be conceived to be above the Law; that stain and blemish was long since taken away, and cleared by those many absolute Declarations and Confirmations of that excellent Law which followed in after Ages, and so it standeth at this day purged and exempted now from any such Saving whatsoever.
'I beseech your Lordships therefore to observe the circumstance of time wherein we offer this Petition to be presented to your Lordships, and by us unto his Majesty: Do we offer it when Magna Charta stands clogged with Saving? No, my Lords, but at this day when latter and better confirmations have vindicated and set free that Law from all exceptions; and shall we now annex another and worse Saving to it, by an unnecessary Clause in that Petition, which we expect should have the fruits and effects of a Law? Shall we our selves relinquish or adulterate that which cost our Ancestors such care and labour to purchase and refine? No, my Lords, but as we should hold our selves unhappy if we should not amend the wretched estate of the poor Subject, so let us hold it a wickedness to impair it.
'Whereas it was further urged by your Lordships, That to insert this Clause into our Petition, would be no more than to do that again at your Lordships motion and request, which he had formerly done by the mouth of our Speaker; and that there is no cause why we should recede from that which so solemnly we have professed. To this I answer and confess, it was then in our hearts, and so it is now, and shall be ever, not to incroach on his Majesty's Soveraign Power. But I beseech your Lordships to observe the different occasion and reference of that Protestation, and of this Clause.
'That was a general Answer to a general Message, which we received from his Majesty, warning us not to incroach upon his Prerogative; to which, like dutiful and loving Subjects, we answered at full, according to the integrity of our own hearts; nor was there any danger in making such an Answer to such a Message, nor could we answer more truly or more properly: But did that Answer extend to acknowledge a Soveraign Power in the King, above the Laws and Statutes mentioned in our Petition, or controul the Liberties of the Subject therein declared and demanded? No, my Lords, it hath no reference to any such particulars; and the same words which in some cases may be fit to be used, and were unmannerly to be omitted, cannot in other Cases be spoken but with impertinency at the least, if not with danger; I have formerly opened my Reasons, proving the dangers of this Clause, and am commanded to illustrate the impertinency of adding it to the Petition by a familiar Case, which was put in our House by a learned Gentleman, and of my own Robe: The Case is this, two Mannors or Lordships lie adjoyning together, and perchance intermixed, so as there is some difficulty to discern the true bounds of either; as it may be touching the Confines where the Liberty of the Subject, and the Prerogative of the Crown do border each upon the other; to the one of the Mannors the King hath clear right, and is in actual possession of it; but the other is the Subjects. The King being misinformed, that the Subject hath intruded upon his Majesty's Mannor, asketh his Subject whether he doth enter upon his Majesty's Mannor, or pretendeth any Title to it, or any part of it? The Subject being now justly occasioned, maketh answer truly to the King, That he hath not intruded, nor will intrude upon his Majesty's Mannor, nor doth make any Claim or Title to it, or any part of it? This Answer is proper and fair; nay, it were unmannerly and ill done of the Subject not to answer upon this occasion. Afterwards the King, upon colour of some double or single matter of Record, seizeth into his Highness's hands, upon a pretended Title, the Subjects Mannor: The Subject then exhibiteth his Petition of Right, or to his Majesty, to attain Restitution of his own Mannor, and therein layeth down Title to his own Mannor only: Were it not improper and absurd in this Case for him to tell the King, that he did not intend to make any Claim or Title to his Majesty's Mannors, which is not questioned? Doubtless it were. This Case rightly applied, will fit our purpose well, and notably explain the nature of our Petition.
'Why should we speak of leaving entire the King's Soveraign Power, whereon we incroach not, while we only seek to recover our own Liberties and Privileges, which have been seized upon by some of the King's Ministers? If our Petition did trench actually upon his Majesty's Prerogative, would our saying that we intended it not, make the thing otherwise than the truth?
'My Lords, there needeth no Protestation or Declaration to the contrary of that which we have not done; and to put in such a Clause, cannot argue less than a fear in us, as if we had invaded it; which we hold sacred, and are assured that we have not touched either in our words, or in our intentions. And touching your Lordships observation upon the word (Leave) if it be not a proper word to give any new thing to the King, sure we are, it is a word dangerous in another sense; for it may amount, without all question, to acknowledge an old Right of Soveraign Power in his Majesty, above these Laws and Statutes whereon only our Liberties are founded; a Doctrine which we most humbly crave your Lordships leaves freely to protest against. And for your Lordships proffering, that some Saving should be requisite for preservation of his Majesty's Soveraign Power, in respect our Petition runneth in larger words than our Laws and Statutes whereon we ground it; what is this but a clear confession by your Lordships, that this Clause was intended by you to be that Saving? for other Saving than this, we find not tendred by you: And if it be such a Saving, how can it stand with your Lordships other Arguments, that it should be of no other effect than our former expression to his Majesty by the mouth of our Speaker? but I will not insist upon Collections of this kind; I will only shew you the Reasons of the Commons, why this Petition needeth no such saving, albeit the words of these Statutes be exceeded in the Declaratory part of our Petition: Those things that are within the equity, and true meaning of a Statute, are as good Laws as those which are contained in the express Letter, and therefore the Statutes of the 42 Edw. 36. H. 3. Rot. Par. N. 12. and other the Statutes made in this time of King Edw. 3. for the Explanation of Magna Charta, which hath been so often vouched in this Parliament, though they differ in words from Magna Charta, had no Saving annexed to any of them, because they enacted nothing more than was contained in effect; In that good Law under the words, per legale judicium parium suorum, aut per legem terrœ, which by these latter Laws are expounded to import, that none should be put to answer without Presentment, or matter of Record, or by due Process, or Writ Original, and if otherwise, it should be void, and holden for error.
'It hath not been yet shewn unto us from your Lordships, that we have in any of our Expressions or Applications strained or mis-applied any of the Laws or Statutes whereon we do insist, and we are very confident and well assured, that no such mistaking can be assigned in any point of our Petition now under question: if therefore it do not exceed the true sense and construction of Magna Charta in the subsequent Laws of Explanation whereon it is grounded, what reason is there to add a Saving to this Petition, more than to those Laws? since we desire to transmit the fruits of these our labors to Posterity, not only for the justification of our selves in right of our present, and their future Liberties; but also for a brave expression and perpetual testimony of that Grace and Justice, which we assure our selves we shall receive in His Majesty's speedy and clear Answer. This is the thing we seek for, and this is the thing we hoped for, and this is the thing only will settle such an unity and confidence betwixt His Majesty and us, and raise such a cheerfulness in the hearts of all His loving Subjects, as will make us proceed unanimously, and with all expedition to supply him for his great occasions in such measure, and in such way as may make him safe at home, and feared abroad.
Sir Henry Martin took up the Argument, and proceeded as to the rational part thereof
Sir Hen. Martin's Speech, as to the rational part of the matter of the Conference.
'It is necessary to state the question rightly, and to set down the true difference between your Lordships and us. Now indeed there is no difference or question between your Lordships and us, concerning this additional Clause in the nature and quality of a Proposition; For so considered, we say it is most true, and to be received and embraced by us, in toto & qualibet parte & qualibet syllaba, yea, and were that the question, we should add to the addition, and instead of due regard, say we have had, have, and ever will have a special and singular regard, where to leave entire Soveraign Power: but this were to intimate, as if we had first cropt it, and then left; but our regard was to acknowledge and confess it sincerely, and to maintain it constantly, even to the hazard of our Goods and Lives, if need be.
'To which purpose your Lordships may be pleased to remember that strict Oath every Member of our House hath taken this very Session, in these words, I (A.B.) do utterly testify and declare in my conscience, That the King's Highness is the Supreme or Soveraign Governor of this Realm in all Causes, &c. and to my ut most power will assist and defend all Jurisdictions, Privileges, Preheminences and authorities, granted or belonging to the King's Highness, or united, or annexed to the Imperial Crown of this Realm, &c.
'So that your Lordships need not to borrow from our Protestations any Exhortations to us, to entertain a Writing in assistance of the King's Soveraign Power, since we stand obliged by the most sacred Bond of a solemn Oath, to assist and defend the same, if cause and occasion so required; So that the only question between your Lordships and us, is, whether this Clause should be added to our Petition, and received into it as part thereof, which to do your Lordships reasons have not persuaded us, because so to admit it, were to overthrow the Fabrick and substance of our Petition of Right, and to annihilate the Right pretended by us and the Petition it self in effect: For these words being added to our Petition (viz.) we humbly present this Petition, &c. with due regard to leave entire your Soveraign Power, &c. do include manifestly an exception to our Petition, and an exception being of the nature of the thing whereunto it is an exception, Exceptio est de regula, must of necessity destroy the Rule or Petition, so far as to the case excepted; Exceptio firmat regulam in casibus non exceptis, in casibus exceptis destruit regulam: Then this construction followeth upon our petition thus inlarged, that after we have petitioned, that no freeman should be compelled by imprisonment to lend or contribute Money to His Majesty without his assent in Parliament, nor receive against his will, Soldiers into his House, or undergo a Commission of Marshal Law, for Life or Member in time of Peace, we should add, Except his Majesty be pleased to require our Moneys, and imprison us for not lending, and send Soldiers into our Houses, and execute us by Marshal Law in time of Peace by virtue of his Soveraign power: which construction, as it followeth necessarily upon this enlargment, so it concludeth against our right in the Premisles, and utterly frustrateth all our Petition; neither may it seem strange, if this clause additional (which of it self in quality of a proposition we confess) being added to our Petition (which also is true) should overthrow the very frame and fabrick of it, seeing the Logicians take knowledge of such a fallacy called by them, Fallacia à bene divisis ad male conjuncta. Horace the Poet giveth an instance to this purpose, in a Painter, who when he had painted the head of a man according to Art, would then joyn to it the neck of a horse, and so mar the one and the other; whereas each by it self might have been a piece of right good workmanship.
'The second branch of my Lord Keeper's rational part, was enforced out of the last words of this addition, by which his Lordship said, that they did not leave entire all Soveraign power, but that wherewith his Majesty is trusted for the protection, safety, and happiness of the People; as if his Lordship would infer that Soveraign power wherewith, &c. in this place to be Terminum diminuentem, a term of diminution or qualification, and in that consideration might induce us to accept it. But under his Lordship's correction, we cannot so interpret it: For first we are assured, that there is no Soveraign power wherewith His Majesty is trusted, either by God, or man, but only that which is for the protection, safety, and happiness of his People; and therefore that limitation can make no impression upon us: but we conceive it rather in this place to have the force Termini ad augentis, to be a term of important advantage, against our Petition, a Term of restriction, and that wheresoever His Majesty's Soveraign power should be exercised upon us; in all and every the particulars mentioned in the petition we should, without further enquiry, submit thereunto, as assuming and taking it pro concesso, it induced to our Safety and Happiness, &c. Since therefore (as the Petition is now conceived) it carrieth the form and face of a Picture, which representeth to the life the pressures and grievances of the People, with the easy remedies; and therefore we hope that his Majesty, casting upon it a gracious eye, will compassionate his poor Loyal Subjects, and afford a comfortable Answer.
'I do humbly pray your Lordships not to marr or blemish the grace and face of this Picture with this unnecessary Addition; and unnecessary I prove it to be, according to that Rule, Expressio ejus quod tacite inest nihil operatur. And Soveraign Power, in cases where it hath place, ought to be used, is always necessarily understood, and though not expressed, yet supplied by reasonable intendment, or by the opinion of all Learned men.
'And therefore, as it neither is, nor can be by us expresly included, especially in this Petition, where the Addition thereof would make such a confusion of the whole sense and substance,
'The King's Soveraign Power and Prerogative is always able to save it self, and if it were not, we must, without this Addition, save it to our utmost powers, if we will save our Oath, and save our selves. The true state of the cause thus standing between your Lordships and us, the House of Commons doth not a little marvel upon what grounds your Lordships are so earnest to urge upon them this addition to be inserted into their Petition, they nothing doubt, but the same proceeded out of a sollicitude and fear which your Lordships have, left otherwise the simple and absolute passage of this Petition might be construed hereafter in prejudice of his Majesty's Soveraign Power: And this your Lordships sollicitude and fear, proceedeth from your love, as the Poet faith, Res est solliciti plena timoris Amor. But I humbly pray your Lordships to examine with us, the grounds of this your sollicitude and fear, which grounds must needs be laid either upon the words of the Petition, or the intention of the Petitioners.
'Upon the words there is no possibility to lay them, for therein is no mention made of the Soveraign Power; and were the words doubtful, as thus, We pray the like things be not done hereafter, under pretext of your Majesty's Soveraign Power; yet in respect of the Protestations preceding, concomitant and subsequent to the Petition, such doubtful words ought reasonably to be interpreted only of such Soveraign Power as was not applicable to the Cases wherein it was exercised; and of such Soveraign Power as should be justly practised: but there are no such doubtful words, and therefore it followeth, that your Lordships fear and sollicitude must be grounded upon the intention of the Petitioners. Now your Lordships well know, that the House of Commons is not ignorant, that in a Session of Parliament, though it continue so many weeks, as this hath done days, yet there is nothing prius & posterius, but all things are held and taken as done at one time; if so, what a strange Collection was this, that at the same time the House of Commons should oblige themselves, by a fearful adjuration, to assist and defend all Privileges and Prerogatives belonging to the King, and at the same time by a Petition (cautiously conveyed) endeavour or intend to divest and deprive the King of some Prerogatives belonging to his Crown? Is therefore such fear and sollicitude can neither be grounded upon the words of the Petition, nor intention of the Petitioners, I humbly pray your Lordships to lay them aside: as we do believe that the Proposition of this Addition from your Lordships, was not only excusable, but commendable, as proceeding from your love: So now having heard our Reasons, your Lordships would rest satisfied, that our refusal to admit them into our Petition, proceedeth from the conscience of the integrity and uprightness of our own hearts, that we in all this Petition have no such end to abate or diminish the King's just Prerogative. And so much in reply to that rational part, whereby my Lord Keeper laboured to persuade the entertainment of this Addition.
'This being done, it pleased the House of Commons to instruct and furnish me with certain Reasons which I should use to your Lordships, to procure your absolute conjunction with us in presenting this Petition; which albeit I cannot set forth according to their worth, and the Instructions given me by the House, yet, I hope, their own weight will so press down into your Lordships Consciences and Judgments, that without further scruple you will chearfully vouchsafe to accompany this Petition with your right noble presence.
'A personis. The first Argument wherewith I was commanded to move your Lordships, was drawn from the consideration of the Persons which are Petitioners, the House of Commons; a House, whose temper, mildness, and moderation in this Parliament hath been such, as we should be unthankful and injurious to Almighty God, if we should not acknowledge his good hand upon us, upon our tongues, upon our hearts, procured, no doubt, by our late solemn and publick Humiliation and Prayers.
'This moderation will the better appear, if, in the first place, we may be remembred, in what passion and distemper many Members of this House arrived thither, what bosoms, what pockets full of complaints and lamentable grievances the most part brought thither, and those every day renewed by Letters and Pacquets from all parts and quarters: You know the old Proverb, Ubi dolor ibi digitus, ubi amor ibi oculus; it is hard to keep our fingers from often handling the parts ill affected; but yet our Moderation overcame our Passion, our Discretion over-came our Affection.
'This Moderation also will the better appear, if in the second place it be not forgotten, how our Ancestors and Predecessors carried themselves in Parliaments, when upon lighter provocations, less would not serve their turns, but new severe Commissions to hear and determine offences against their Liberties, publick Ecclesiastical Curses, or Excommunications against the Authors or Actors of such violations, accusations, condemnations, executions, banishments. But what have we said all this Parliament? we only look forward, not backward: we desire amendment hereafter, no man's punishment for ought done heretofore; nothing written by us in blood, nay, not one word spoken against any man's person in displeasure. The conclusion of our Petition is, that we may be better intreated in time to come: And doth not this moderate Petition deserve your Lordships chearful conjunction, ex congruo & condigno? If a Worm being trodden upon, could speak, a Worm would say, Tread upon me no more, I pray you: Higher we rise not, lower we cannot descend; and thus much we think in modesty may well be spoken in our own commendation, thence to move your Lordships to vouchsafe us your noble company in this Petition, without surcharging it with this Addition.
'A tempore. Our next Argument is drawn à tempore, from the unseasonableness of the time. The Wise man faith, There is a time for all things under the Sun. Tempus suum; and if, in the wise man's judgment, a word spoken in its due time be precious as Gold and Silver, then an unseasonable time detracts as much from the thing or word, done or spoken: We hold (under your favours) that the time is not seasonable now for this Addition; it is true, that of it self, Soveraign Power is a thing always so Sacred, that to handle it otherwise than tenderly, is a kind of Sacrilege, and to speak of it otherwise than reverently, is a kind of Blasphemy; but every vulgar capacity is not so affected, the most part of men, nay, almost all men, judge and esteem all things, not according to their own intrinsick vertue and quality, but according to their immediate effects and operations, which the same things have upon them: Hence it is, that Religion it self receiveth more or less credit or approbation, as the Teachers or Professors are worse or better; yea, if God himself send a very wet Harvest or Seed time, men are apt enough to censure Divine Power: The Soveraign Power hath not now, for the present, the antient amiable aspect, in respect of some late sad influences, but by God's Grace it will soon recover.
'To intermix with this Petition any mention of Soveraign Power, rebus sic stantibus, when angry men say, Soveraign Power hath been abused and the most moderate wish it had not been so used, we hold it not seasonable, under your Lordships correction.
'A loco. Our next Argument is drawn àloco: we think the place where your Lordships would have this Addition inserted (viz.) in the Petition, no convenient or seasonable place; your Lordships will easily believe, that this Petition will run through many hands, every man will be destrous to see and to read, what their Knights and their Burgesses have done in Parliament upon their complaints, what they have brought home for their five Subsidies; If, in perusing of this Petition, they fall upon the mention of Soveraign Power, they presently fall to arguing and reasoning, and descanting, what Soveraign Power is, what is the Latitude, whence the Original, and where the Bounds? with many such curious and captious questions; by which course, Soveraign Power is little advanced or advantaged; for I have ever been of opinion, that it is then best with Soveraign Power, when it is had in tacite veneration, not when it is profaned by publick hearings or examinations.
'Our last Argument is drawn from our Duty and Loyalty to his Majesty, in consideration whereof, we are fearful at this time to take this Addition into our Petition, lest we should do his Majesty herein some disservice: with your Lordships we make the great Council of the King and Kingdom; and though your Lordships, having the happiness to be near his Majesty, know other things better, yet certainly the state and condition of the several parts for which we serve, their dispositions and inclinations, their apprehensions, their fears and jealousies, are best known unto us: And here I pray your Lordships to give me leave to use the figure called Reticentia, that is, to insinuate and intimate more than I mean to speak: Our chief and principal end in this Parliament, is, to make up all Rents and Breaches between the King and his Subjects, to draw them, and knit them together, from that distance, whereof the world abroad takes too much notice, to work a perfect union and reconciliation: how unproperly and unapt at this time this Addition will be in respect of this end, we cannot but forsee, and therefore shun it, and do resolve, that it is neither agreeable to the Persons of such Counsellors, of whom we are, not answerable to that Love and Duty which we owe to his Majesty, to hazardan end of such unspeakable consequence, upon the admittance of this Addition into our Petition, whereof (as we have shewed) the omission at this time can by no means harm the King's Prerogative, the expression may produce manifold inconveniences: and therefore since the admittance of your Lordships Addition into our Petition, is incoherent and incompatible with the body of the same; since there is no necessary use of it for the saving of the King's Prerogative; since the moderation of our Petition deserveth your Lordships chearful conjunction with us; since this Addition is unseasonable for the time, and inconvenient in respect of the place where your Lordships would have it inserted; and lastly, may prove a disservice to his Majesty. I conclude with a most affectionate Prayer to your Lordships, to conclude with the House of Commons, in presenting this Petition to his Sacred Majesty, as it is, without this Addition.
Monday 26. of May, the Lord Keeper made this Speech at a Conference.
The Lords and Commons agree touching the Petition of Right.
'Ye that are Knights, Citizens, and Burgesses of the House of Commons, I have many times this Parliament by command from my Lords, declaring the great zeal and affection which my Lords have to maintain and nourish the good concurrence and correspondency which hath hitherto continued between both Houses, that there might be a happy issue in this great business, for the common good of the King and Kingdom. Now that which I have to say this day from my Lords, is, to let you know, this fair proceeding is not a profession of words only, but really and indeed concerning the Petition, which hath been long in agitation, as the weight of the cause required: since the last Conference, my Lords have taken it into their serious and instant consideration, and at length are fallen upon a Resolution, which I am to acquaint you with.
'The Lords have unanimously agreed with you in omnibus, and have voted, that they will joyn with you in your Petition, with the only alteration of the word [means] to be put instead of the word [pretext] and for the word [unlawful] to be put out, and in place thereof to add [not warrantable by the Laws and Statutes of the Realm.] Which two alterations you your selves consented unto.
'So that concerning this business there remains nothing now, but that having the Petition in your hands, ye will (if ye have not already) vote it as they have done, and so prepare it for his Majesty; and my Lords will take order, that the King be moved for a speedy access to present the same to his Majesty.
And, after some pause, he said, 'There rests one thing which my Lords have commanded me to add, that in regard this Petition toucheth upon certain Charges raised by the Lords Lieutenants, and other Persons, many times for good use, for the service and safety of the Kingdom; That ye take it into your care and consideration, and to provide a Law for Assessing of such Charges, as the occasion of the time shall require.
The Lords and Commons being thus happily accorded, the Petition, with the aforesaid amendments, was read in the House two several times together: Then it was voted upon question, and that it should be ingrossed, and read the third time, and the House to sit in the afternoon till it was ingrossed, and read, and ordered to be presented to the King, to which there was not a negative Vote. And the Bill of Subsidy was also read the second time, and committed.
Wednesday 28 May, the Lords and Commons had a Conference about the manner of delivery of the Petition; and Sir Ed. Cook reported, That their Lordships were agreed, That no Addition or Preface be used to the King, but that the Petition be preferred to his Majesty by command of the Lords and Commons; and his Majesty be desired, that to the content of his People, he would be pleased to give his gracious Answer in full Parliament.
About this time Mr. Rouse brought in a Charge against Doctor Edward Manwaring which some days after was seconded with a Declaration.
Mr. Rouse against Dr. Ed. Manwaring.
I Am to deliver from the Committee a Charge against Mr. Manwaring, a Preacher in Divinity; but a man so criminous, that he hath turned his Titles into Accusation; for the better they are, the worse is he that dishonours them.
Here is a great Charge that lies upon him, it is great in itself, and great, because it hath many great Charges in it; Serpens qui serpentem devorat sit draco, his Charge having digested many Charges into it, becomes a Monster of Charges.
The main and great one in this Plot and Practice, to alter and subvert the Frame and Fabrick of this Estate and Common-wealth.
This is the great one, and it hath others in it that give it more light. To this end,
- 1. He labours to infuse into the Conscience of his Majesty, the persuasion of a Power not bounding it self with Laws, which King James of famous memory, calls, in his Speech to the Parliament, Tyranny, yea, Tyranny accompanied with Perjury.
- 2. He endeavours to persuade the Conscience of the Subjects, that they are bound to obey Commands illegal; yea, he damns them for not obeying them.
- 3. He robs the Subjects of the Propriety of their Goods.
- 4. He brands them that will not lose this Propriety with most scandalous Speech, and odious Titles, to make them both hateful to Prince and People; so to set a division between the Head and the Members, and between the Members themselves.
- 5. To the same end, not much unlike to Faux and his Fellows, he seeks to blow up Parliaments, and Parliamentary Powers.
'The Fifth being duly viewed, will appear to be so many Charges, and they make up all the great and main Charge, a mischievous Plot to alter and subvert the Frame and Government of this State and Common-wealth.
'And now, though you may be sure, that Mr. Manwaring leaves us no propriety in our goods, yet he hath an absolute propriety in this Charge; hear himself making up his own Charge. Here he read several passages out of his Book, and then proceeded and said; 'You have heard his Charge made up by his own words, and withal I doubt not but you seem to hear the voice of that wicked one [Quid dabitis?] what will you give me, and I will betray this State, Kingdom, and Common-wealth?
'But there are two Observations (I might add a third, which is like unto a three-fold Cord, which cannot easily be broken) will draw the Charge more violently upon him.
'The first is of the Time when this Doctrine of destruction was set forth; it was preached in the heart of the Loan, and it was printed in the beginning of that Term which ended in a Remittitur: So that you might guess there might be a double Plot, by the Law and Conscience, to set on fire the frame and estate of this Common-wealth: And one of these entailed Foxes was Mr. Manwaring.
'Another note may be taken of the time, that is, the unseasonableness of it; for this Doctrine of the Loan (in case of necessity) was the year after an Assent in Parliament to Four Subsidies and Three Fifteens, which might serve for a sufficient stopple for the Doctor's mouth, to keep in his Doctrine of Necessity.
'A second observation may be of the means by which he seeks to destroy this Common-wealth; his means are Divinity, yea, by his Divinity he would destroy both King and Kingdom.
'The King: for there can be no greater mischief to a Prince, than to put the opinion of Deity into his ears; for if from his ears it should have passed to his heart, it had been mortal: you know how Herod perished. Now this man gives a participation of Divine Omnipotence to Kings; and though a part may seem to qualify, yet all doth seem again to fill up that qualification, and very dangerously, if we remember that God saith of himself, I am a jealous God.
'He goes about to destroy the Kingdom and Common-wealth by his Divinity; but do we find in Scripture such a destroying Divinity? Surely I find there, that God is a God of order, and not of confusion: and that the Son of God came to save, and not to destroy. By which it seems he hath not his Divinity from God, nor from the Son of God: And that we may be sure he went to Hell for Divinity, he names sundry Jesuites and Fryers, with whom he consulted and traded for his Divinity. But not to belie Hell it self, the Jesuites are honester than he: for if he had not brought more Hell unto them than he found with them, he had not found this Divinity in them which he hath brought forth; yea, in his quotations he hath used those shifts and falshoods, for which Boys are to be whipt in Schools, and yet by them he thinks to carry the Cause of a Kingdom.
'But, for a conclusion, to give the true character of this man, whom I never saw, I will shew it you by one whom I know to be contrary to him: Samuel we know all to be a true Prophet; now we read of Samuel, that he writ the Law of the Kingdom in a Book, and laid it up before the Lord. And this he did, as one of Mr. Manwaring's own Authors affirms, that the King may know what to command, and the People what to obey; but Mr. Manwaring, finding the Law of this Kingdom written in Books, tears it in pieces, and that in the presence of the Lord in a Pulpit, that the King may not know what to command, nor the People what to obey.
'Thus Mr. Manwaring being contrary to a true Prophet, must needs be a false one, and the Judgment of a false Prophet belongs to him.
'I have shewed you an evil Tree, that bringeth forth evil fruit; and now it rests with you to determine, whether the following Sentence shall follow, Cut it down, and Cast it into the fire.
About this time the Mayor of Plimouth certified to the Burgesses, serving for that Town in Parliament, the Examination of Le Brun, a Frenchman, Captain of the Mary of Rochel, taken the 16 of May, 1628, viz. The Examinate saith, That on Sunday, being the 17. of April last past, he departed from Plimouth-Harbour in company with the English Fleet, whereof the Earl of Denbigh is General: and on the first day of May, then following, the said Fleet arrived and came at Anchor at Charleboy in the Rode of Rochel, about four of the clock in the afternoon; where at the said arrival, they found twenty Sail of the King of France his Ships, whereof six were Ships of about 300 Tuns, and the rest were small Ships; and forthwith the said French Ships put themselves to sail, and went in nearer to the Fortifications, where they also Anchored within two Cannon shot of the English Fleet, and said, That one of his Majesty's Ships shot off one Piece of Ordnance, and no more; and that the said French Ships as they returned from the English Fleet, shot off oftentimes to them, and that the same Fleet remained there until the eighth day of the said month of May; in which time there was a Wherry sent from the Fleet into Rochel, wherein there were two English and one Frenchman, to inquire the state of the said Town; and that if they were there safe arrived, they should make a fire upon one of the Towers of the Town to give notice thereof; which accordingly they did, and also to make so many fires more on the Walls of the said Town, as they have months Victuals there; but they made not any answer thereof: whence it was collected, that they had but a small quantity of Victuals; and said, That the said English, as he hath heard, promised to sink the said French Ships when the waters did increase; and the Wind came at West-north-west, it being then Neap-tides, and about two days after the waters did increase, and the Winds came accordingly: and being then intreated to fight with them, yet did not, but came away without fighting or relieving the Town; and saith, That on the eighth day of May, the said English Fleet weighed Anchor, and set Sail to depart; and four of the French great Ships weighed Anchor also, and came after them, and shot divers times at the said Fleet, and the said Fleet shot at them again. And the said Examinate came in company with the said Fleet as far as Bell-Isle, where he departed from them on the tenth of this instant. And lastly, saith, That during all the time the English Fleet was there, the Town of Rochel shot to the King of France his Ships and Fort, but chiefly upon the arrival of the said Fleet there.
This Examination being communicated to the Council-Table, it procured this ensuing Letter from the Privy-Council to the Duke, dated the 30. of May, 1628. viz.
Whereas it is his Majesty's pleasure, that the Earl of Denbigh shall return back to relieve the Town of Rochel, with the Fleet under his Charge: We do therefore pray your Grace, to signify this his Majesty's pleasure unto the said Earl, and to give him special charge and direction, so soon as the said Fleet, or the greatest part thereof, shall be re-assembled and joyned together; then presently, with the first opportunity of Wind, taking into his charge also the Ships stayed and prepared at Portsmouth and Plimouth, together with such Fire-ships and other Vessels, as shall be provided for this Expedition, to return to Rochel with all possible diligence, and do his best endeavours to relieve the same; letting his Lordship know, that order is taken for the Victualling of the Fleet by Petty Warrant, so long as it remaineth in Harbour, for the sparing and lengthning of the Sea-Victuals: And if it so fall out, that the Earl of Denbigh do set forward on his Voyage towards Rochel, before the whole Fleet shall be joyned with him, we pray your Grace to give him such direction, that he may leave order, that the Ships which are behind shall follow him with all speed.