Historical Collections of Private Passages of State: Volume 1, 1618-29. Originally published by D Browne, London, 1721.
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Questions propounded to the Judges concerning the imprisoned Members
Whereupon all the Judges met at Serjeants-Inn by command from his Majesty, where Mr. Attorney proposed certain Questions concerning the offences of some of the Parliament-men committed to the Tower, and other Prisons: At which time, one Question was proposed and resolved, viz. That the Statute of 4 H. 8. intituled, An Act concerning Richard Stroud, was a particular Act of a Parliament, and extended only to Richard Stroud, and to those persons that had joined with him to prefer a Bill to the House of Commons concerning Tinners; and although the Act be private, and extendeth to them alone, yet it was no more than all other Parliament men, by privilege of House, ought to have, viz. Freedom of Speech concerning those matters debated in Parliament by a Parliamentary course.
1. Whether if any Subject hath received probable information of any Treason or treacherous attempt or intention against the King or State that Subject ought not to make known to the King, or his Majesty's Commissioners, when thereunto he shall be required, what information he hath received, and the grounds thereof; to the end, the King being truly informed, may prevent the danger? And if the said Subject in such case shall refuse to be examined, or to answer the Questions which shall be demanded of him for further inquiry and discovery of the truth, whether it be not a high contempt in him, punishable in the Star-chamber, as an offence against the general Justice and Government of the Kingdom?
Sol. The Resolution and Answer of all the Justices, That it is an offence punishable as aforesaid, so that this do not concern himself, but another nor draw him to danger of Treason or Contempt by his Answer.
2. Whether it be a good answer or excuse, being thus interrogated, and refusing to answer, to say, That he was a Parliament man when he received this Information, and that he spake thereof in the Parliament House; and therefore the Parliament being now ended, he refused to answer to any such Questions but in the Parliament House, and not in any other place?
Sol. To this the Judges, by advice privately to Mr. Attorney, gave this Answer, "That this excuse being in nature of a Plea, and an errour in Judgment, was not punishable, until he were over-ruled in an orderly manner to make another Answer; and whether the Party were brought in Ore tenus, or by Information, for this Plea he was not to be punished.
Sol. All the Judges, una voce, answered, He might, if he be not punished for it in Parliament; for the Parliament shall not give privilege to any contra morem Parliamentarium, to exceed the bounds and limits of his place and duty. And all agreed, That regularly he cannot be compelled out of Parliament to answer things done in Parliament in a Parliamentary course; but it is otherwise where things are done exorbitantly, for those are not the acts of a Court.
4. Whether if one Parliament man alone shall resolve, or two or three shall covertly conspire to raise false slanders and rumours against the Lords of the Council and Judges, not with intent to question them in a Legal course, or in a Parliamentary way, but to blast them, and to bring them to hatred of the people, and the Government in contempt, be punishable in the Star-chamber after the Parliament is ended?
Whether if a man in Parliament, by way of digression, and not upon any occasion arising concerning the same in Parliament, shall say, The Lords of the Council and the Judges had agreed to trample upon the Liberty of the Subject, and the Privileges of Parliament, he were punishable or not?
It is demanded of a Parliament man, being called Ore tenus before the Court of Star-chamber, being charged, that he did not submit himself to examination for such things as did concern the King and the Government of the State, and were affirmed to be done by a third person, and not by himself, if he confesses his hand to that refusal, and make his excuse, and plead because he had privilege of Parliament;
It is the justest way for the King and the Party not to proceed Ore tenus, because it being a point in Law, it is fit to here Council before it be over-ruled; and upon an Ore tenus, by the Rules of Star-chamber, Counsel ought not to be admitted; and that it would not be for the Honour of the King, nor the safety of the Subject, to proceed in that manner.
Pascha 5 Car. upon a Habeas Corpus of this Court to bring the body of William Stroud Esq; with the cause of his Imprisonment, to the Marshal of the King's Bench; it was returned in this manner, That Mr. William Stroud was committed under my custody by virtue of a certain Warrant under the hands of twelve of the Lords of the Privy-Council of the King. The tenour of which Warrant followeth in these Words:
You are to take knowledge, That it is his Majesty's pleasure and commandment, that you take into your custody the body of William Stroud Esq, and keep him close prisoner till you shall receive other order, either from his Majesty, or this Board; for so doing, this shall be your Warrant. Dated this 2d of April 1629. And the direction of the Warrant was, To the Marshal of the King's Bench, or his Deputy.
Whereas you have in your custody the body of William Stroud Esq, by Warrant of our Lords of our Privy-Council, by our special command, you are to take notice, that this Commitment was for notable Contempts by him committed against our Self and our Government, and for stirring up Sedition against us; for which you are to detain him in your custody, and to keep him close prisoner, until our pleasure be further known concerning his deliverance.
Mr. Ask of the Inner-Temple, of Counsel for Mr. Stroud; and Mr. Mason of Lincolns-Inn, of Counsel for Mr. Long, argued against the insufficiency of the Return; which, with the Arguments of the King's Counsel, we here forbear to mention, lest it be too great a diversion to the Reader from the Historical part; yet those and other Arguments we have nevertheless postponed at the end of this first Volume, for the benefit of the Studients of the Law: which course, as to Arguments in Law, wherein the Prerogative of the one hand, and Liberty and Property of the other hand, are concerned, we purpose to observe in our next and other Volumes, as matter of that nature falls out in series of Time.
Jovis Septimo die Maii, Anno Quinto Ca. R.
Humbly sheweth and informeth unto your most excellent Majesty, Sir Robert Heath Knight, your Majesty's Attorney-General, for and on your Majesty's behalf, That whereas by the antient and fundamental Laws of this Kingdom, the High Court of Parliament consisteth of the Lords Spiritual and Temporal in the Lords House, and of the Knights, Citizens and Burgesses in the Commons House of Parliament, and those two Houses thus composed, do together make up that great and honourable Body, whereof your most Excellent Majesty, as the Supreme Sovereign, is the Head: And whereas the Power of Summoning and Assembling of Parliaments, and of Continuing, Proroguing, Adjourning, and Dissolving thereof within this Realm at your good pleasure, is the undoubted Right of your Majesty; and the Liberty and Freedom of Speech, which the Members of the said Houses of Parliament have, according to the Privileges of those several Houses, to debate, consult, and determine of those things which are propounded amongst them, is, and ever hath been, and ought to be, limited and regulated within the bounds of Moderation and Modesty, and of that Duty which Subjects owe to their Sovereign: And whereas your Majesty, for many weighty causes, and for the general good and defence of the Church and State of this your Kingdom, lately summoned a Parliament to be holden at your City of Westminster, the seventeeth day of March, in the third Year of your Majesty's Reign, which continued from thence by Prorogation until the twentieth day of January last; from which day, until the twenty-fifth day of February following, the said Houses continued sitting. And although the great part of the House of Commons, being zealous of the common Good, did endeavour to have effected those good things for which they were called thither; yet between the said twentieth day of January, and the said twenty-fifth day of February, by the mallevolent disposition of some ill-affected Members of the said House, sundry Diversions and Interruptions were there made, and many Jealousies there unjustly raised and nourished, to the disturbance of those orderly and parliamental Proceedings, which ought to have been in so grave a Council. During which time of the said last Meeting in Parlirment, as aforesaid, so it is, may it please your most Excellent Majesty, that Sir John Elliot Knight, then and all the time of the said Parliament, being one of the Members of the said Commons House, wickedly and maliciously intending, under a feigned colour and pretence of debating the necessary affairs of the present estate, to lay a scandal and unjust aspersion upon the right Honourable the Lords, and others of your Majesty's most Honourable Privy-Council, and upon the Reverend Judges, and your Counsel learned, and as much as in him lay to bring them into the hatred and ill opinion of the people; after the said twentieth day of January, and before the said twenty-fifth day of February last, did openly and publickly in the said House of Commons, falsely and maliciously affirm That your Majesty's Privy-Council, all your Judges, and your Counsel learned, had conspired together to trample under their feet the Liberties of the said Subjects of this Realm, and the privileges of that House. And further, so it is, may it please your most Excellent Majesty, that when your Majesty, upon the twenty-fifth day of February, had, by Sir John Finch, Knight, then Speaker of the said House of Commons, signified your Royal Pleasure to the said House, that the said House of Commons should be instantly adjourned until the second day of March then following, he the said Sir John Elliot, and Denzil Holles Esq; Benjamin Valentine Gent. Walter Long Esq; William Coriton Esq; William Stroud Esq; John Selden Esq; Sir Miles Hobert, and Sir Peter Hayman, Knights, all Members at that time of the said Commons House, conceiving with themselves, that your Majesty, being justly provoked thereto, would speedily dissolve that Parliament; they the said Sir John Elliot, Denzil Holles, Benjamin Valentine, Walter Long, William Coriton, William Stroud, John Selden, Sir Miles Hobert, and Sir Peter Hayman, and every of them, by unlawful confederacy and combination between them in that behalf before had, did maliciously resolve, agree, and conspire, how and by what means, before that Parliament should be dissolved, they might raise such false and scandalous rumours against your Majesty's Government, and your Counsellors of Estate attending your Person, that thereby as much as in them lieth, they might disturb the happy Government of this Kingdom, by and under your Majesty; interrupt the course of Traffick and Trade; discourage your Merchants, and raise Jealousies and Suspicions in the hearts of your people, that the sincerity of the true Religion professed and established in this Kingdom, was neglected: And in pursuance of this their resolution and confidence aforesaid, the said Sir John Elliot, with the privity and consent of the said Denzil Holles, and all other the said Confederates, did prepare a Paper or Writing, wherein he had written, or caused to be written, divers false and scandalous Assertions touching your Majesty's Government, and touching the persons of divers of your Privy-Council, which he and they resolved, and conspired, and agreed, should be delivered into the said House of Commons, and there publickly read, to the wicked and seditious intents and purposes aforesaid, and not with any purpose or opinion that those things that were therein contained, if they, or any of them had been true, as indeed they were not, should or could be at that time entertained, or pursued in any Legal or Parliamentary way, but merely and only to express and vent his and their own malice and disaffection of your Majesty, and your happy Government: And your Majesty, upon the said second day of March now last past, having signified your Royal Pleasure unto the said Sir John Finch, then the Speaker of that House, That the said House should then be presently adjourned until the tenth day of the said month of March, without any further Speech or Proceedings at that time; and the said Speaker then delivered your Majesty's pleasure and commandment to the said House accordingly, and declared unto them your Majesty's express charge and command unto him, That if any should notwithstanding disobey your Majesty's command, that he must forthwith leave the charge, and wait upon your Majesty: Unto which commandment of your Majesty, and signification of Your Royal pleasure in that behalf, for a present Adjournment of the House, the greatest number of the Members of that House, in their Duty and Allegiance unto your Majesty, were willing to have given a ready obedience, as the Lords Spiritual and Temporal of the Lords House, upon the very same, upon the like signification made unto them of your Majesties pleasure, by your Lord Keeper of your Great Seal of England, the Speaker of that House had done: Yet so it is, may it please your most Excellent Majesty, that the said Sir John Elliot, for the satisfying of his own malice and disloyal affections to your Majesty, and by the confederacy and agreement aforesaid, and in a high contempt and disobedience unto your Majesties command, aforesaid, and with set purpose to oppose your Majesties said command, did stand up, and several times offered to speak. Whereupon the said Speaker, in obedience to your Majesties said command, endeavouring to have gone out of the Chair, the said Denzil Holles and Benjamin Valentine, being then next the Speakers Chair, and the one of them on the one hand, and the other of them on the other hand of the Speaker (where they so placed themselves of purpose on that day) out of their disobedience to your Majesty, and by the confederacy and agreement aforesaid, violently, forcibly, and unlawfully, and with purpose to raise a tumult in the said House, kept and held the said Speaker in the said Chair, against his Will; and the said Speaker again endeavouring to leave the Chair, and having then gotten out of the Chair, they, the said Denzil Holles and Benjamin Valentine, laid violent hands upon the said Speaker, forcibly and unlawfully, and by strong hand thrust him into his Chair again; and then the said Sir John Elliot again stood up, and used these speeches; (viz.) "We have prepared a short Declaration of our intentions, which I hope shall agree with the Honour of the House, and the Justice of the King. And with that he threw down a Paper into the floor of the said House, desiring it might be read: And the said Denzil Holles, Benjamin Valentine, and all other the Confederates aforesaid, in disobedience and high contempt of your Majesties said command, called and cried out to have the same Paper read. But some others of the House spake to the contrary, that it might not be read; and the House thereupon, by reason of the disorderly behaviour of the said Confederates, was much troubled, many pressing violently and tumultuously to have the said Paper read, and others dutifully and diligently urging the contrary, to the great disquiet and discomfort of many well-affected Members of that House. And the said William Coriton, in this distemper, demeaned himself so passionately and violently, that he then and there violently, forcibly, and unlawfully assaulted and struck Winterton, Gent. then being a Member of the said House: And divers of the Members of the said House being then desirous, and endeavouring to have gone out of the said House, the said Sir Miles Hobart did, of his own head, lock the door of the said House, and kept the key thereof, and imprisoned the Members of the said House, being then in the said House, against their wills, so that none of them could go out. And the said William Stroud, for the further expressing of his malignity and undutifulness towards your Majesty, and in pursuance of the agreement and confederacy aforesaid, openly moved, and with much earnestness urged, that the said Paper or Declaration might be first read, to the end (as he then, in great contempt of your Royal Majesty, said) that we, meaning the Members of the House may not be turned off like scattered Sheep, and sent home as we were last Sessions, with a scorn put upon us in Print; meaning thereby the words which your Majesty, in your own Person, spake at the ending of the last Session, and caused the same to be printed: and the said Stroud, in a very disorderly manner, further moved, That all those who would have the said Paper read, should stand up; which divers of them thereupon did do accordingly, and he the said Stroud amongst others did stand up; and in this heat of contention, and heighth of disobedience, by the confederacy aforesaid, to have the said Paper read, the said Sir Peter Hayman, with rough and reproachful words, reproved the said Speaker, for being constant and resolute in his obedience to your Majesty, in not putting the reading of the said Paper to the Question, as by all the said Confederates, with many Reasons and Arguments he was urged to do: and the said Sir Peter Hayman then further said, That the said Speaker was made an Instrument to cut up the Liberty of the Subjects by the roots. But when by no means the said Speaker would be drawn to transgress your Majesties Royal command aforesaid, and lest the said Paper should not be read, the said John Selden moved, that the Clerk of the said House might read the same: and when the said Sir John Elliot found, that he and his Confederates aforesaid, could not procure the said Paper to be read, he, the said Sir John Elliot, to the end he might not lose that opportunity to vent and publish those malicious and seditious Resolutions, which he and his Confederates had collected, and prepared as aforesaid, took back the said Paper again, and then immediately in the said House said, I shall now express that by Tongue, which this Paper should have done; and then spake these words: "The miserable condition we are in, both in matters of Religion and Policy, makes me look with a tender eye both to the Person of the King, and to the Subjects. And then speaking of them whom he intended to be ill Instruments, in this State, at whom he principally aimed, he said, "There are amongst them some Prelates of the Church, the great Bishop of Winchester and his fellows; it is apparent what they have done, to cast an aspersion upon the honour, and piety, and goodness of the King. These are not all, but is extended to some others, who, I fear, in guilt of conscience of their own desert, do join their power with that Bishop and the rest, to draw His Majesty into a jealousie of the Parliament; amongst whom, I shall not fear to name the great Lord Treasurer, in whose person I fear is contracted all that which we suffer. If we look into Religion or Policy, I find him building upon the ground laid by the Duke of Buckingham his great Master; from him, I fear, came those ill Counsels which contracted that unhappy conclusion of the last Session of Parliament; I find, that not only in the affections of his heart, but also in relation to him, and I doubt not to fix it indubitably upon him: and so from the power and greatness of him, comes the danger of our Religion. For Policy, in that great Question of Tunnage and Poundage, the interest which is pretended to be the Kings, is but the interest of that Person, to undermine the Policy of this Government, and thereby to weaken the Kingdom, while he invites Strangers to come in to drive our Trade, or at least our Merchants to Trade in Strangers Bottoms, which is as dangerous. Therefore it is fit to be declared by us, that all that we suffer, is the effect of new Counsels, to the ruin of the Government of the State; and to make a Protestation against all those Men, whether greater or subordinate, that they shall all be declared as capital Enemies to the King and Kingdom, that will perswade the King to take Tunnage and Poundage without grant of Parliament, and that if any Merchants shall willingly pay those duties without consent of Parliament, they shall be declared as accessaries to the rest. Which words of the said Sir John Elliot, were by him uttered as aforesaid, falsely, and maliciously, and seditiously, out of the wickedness of his own affections towards your Majesty, and your gracious and religious Government, and by the confederacy, agreement, and privity of the said other Confederates, and to lay a slander and scandal thereupon; and not with a purpose or in a way to rectify any thing which he conceived to be amiss but to traduce and blast those persons against whom he had conceived malice; for so himself the same day in that House said, and laid down as a ground for that he intended to say, "That no man was ever blasted in that House, but a curse fell upon him.
And further, so it is, may it please your most excellent Majesty, That when the said Sir John Elliot had thus vented that malice and wickedness which lay in his heart, and as appeareth by his own words, were expressed in the said Paper, which was prepared as aforesaid, the said Walter Long, out of his inveterate malice to your Majesty, and to your Affairs, and by the confederacy aforesaid, then and there said, That man who shall give away my Liberty and Inheritance (I speak of the Merchants) I note them for capital Enemies to the Kingdom. And lest the hearers should forget these wicked desperate positions laid down as aforesaid, and to the end the same might have the deeper impression, and be the more divulged abroad to the prejudice of your Majesty, and of your great Affairs, and to the scandal of your Government, the said Denzil Holles collected into several Heads what the said Sir John Elliot had before delivered out of that Paper, and then said, Whosoever shall counsel the taking up of Tunnage and Poundage, without an Act of Parliament, let him be accounted a capital Enemy to the King and Kingdom. And further, What Merchants soever shall pay Tunnage and Poundage without an Act of Parliament, let him be counted a Betrayer of the Liberty of the Subjects, and a capital Enemy to the King and Kingdom.
Which Positions thus laid, the said Denzil Holles, neither being Speaker, nor sitting in the Chair as in a Committee by direction of the House, but in an irregular way, and contrary to all course of orderly proceedings in Parliament, offered to put these things so delivered by him as aforesaid, to the Question, and drew from his Confederates aforesaid an applause and assent, as if these things had been voted by the House.
And further; so it is, may it please your most Excellent Majesty, That the Disobedience of the said Confederates was then grown to that height, that when Edward Grimston, the Serjeant at Arms then attending the Speaker of that House, was sent for by your Majesty, personally to attend your Highness, and the same was made known in the said House, the said Confederates notwithstanding at that time, forcibly and unlawfully kept the said Edward Grimston locked up in the said House, and would not suffer him to go out of the House to attend your Majesty: And when also on the same day, James Maxwel Esquire, the Gentleman-Usher of the Black-Rod, was sent from your Majesty to the said Commons House, with a Message immediately from your Majesties own person, they the said Confederates utterly refused to open the door of the House, and to admit the said James Maxwel to go to deliver his Message. After all which, the said House was then adjourned until the said tenth day of March then following; and on the said tenth day of March the said Parliament was dissolved and ended. In consideration of all which premisses, and forasmuch as the contempt and disobedience of the said Sir John Elliot, and other the Confederates aforesaid, were so great, and so many, and unwarranted by the privilege and due proceeding of Parliament, and were committed with so high a hand, and are of so ill example, and so dangerous consequence, and remain all unpardoned. Therefore they prayed a process against them, to answer their contempts in the high Court of Star-Chamber.
Memorandum, That the 29th of May, Anno quinto Car. Reg. these words, viz. After all which, the said House was then Adjourned until the said tenth day of March; and on the said tenth day of March the said Parliament was dissolved and ended; were added and inserted by order of the Court, immediately before, In tender consideration, &c.
At the same time Sir Robert Heath, the Kings Attorney-General, preferr'd an Information in Star-Chamber against Richard Chambers of the City of London, Merchant; wherein, first, he did set forth the gracious Government of the King, and the great Privileges which the Merchants have in their Trading, by paying moderate duties for the Goods and Merchandizes exported and imported; and setting forth, that the raising and publishing of undutiful and false speeches, which may tend to the dishonour of the King or the State, or to the discouragement or discontentment of the Subject, or to set discord or variance between his Majesty and his good People, are offences of dangerous consequence, and by the Law prohibited, and condemned under several penalties and punishments.
That nevertheless the said Richard Chambers, the 28 day of September last, being, amongst some other Merchants, called to the Council-board at Hampton-Court, about some things which were complained of in reference to the Customs, did then and there, in an insolent manner, in the presence or hearing of the Lords and other of his Majesties Privy-Council, then sitting in Counsel, utter these undutiful, seditious, and false words, That the Merchants are in no part of the world so screwed and wrung as in England; That in Turkey they have more encouragement. By which words, he the said Richard Chambers, as the Information setteth forth, did endeavour to alienate the good affection of his Majesties Subjects from his Majesty, and to bring a slander upon his just Government: And therefore the Kings Attorney prayed Process against him.
To this Mr. Chambers made answer, That having a Case of Silk Grogerams brought from Bristol by a Carrier to London, of the value of 400l. the same were, by some inferiour Officers, attending on the Custom-house, seized without this Defendants consent; notwithstanding he offered to give security to pay such Customs as should be due by Law, and that he hath been otherwise grieved and damnified, by the injurious dealing of the Under-Officers of the Custom-house; and mentioned the particulars wherein: And that being called before the Lords of the Council, he confesseth, that out of the great sense which he had of the injuries done him by the said inferiour Officers, he did utter these words, That the Merchants in England were more wrung and screwed than in Foreign Parts. Which words were only spoken in the presence of the Privy-Council, and not spoken abroad, to stir up any discord among the People; and not spoken with any disloyal thought at that time of his Majesty's Government, but only intending by these words to introduce his just complaint against the wrongs and injuries he had sustained by the inferiour Officers; and that as soon as he had heard a hard construction was given of his words, he endeavoured by Petition to the Lords of the Council, humbly to explain his meaning, that he had not the least evil thought as to his Majesties Government; yet was not permitted to be heard, but presently sent away prisoner to the Marshalsea: And when he was there a prisoner, he did again endeavour by Petition to give satisfaction to the Lords of the Council; but they would not be pleased to accept of his faithful explanation, which he now makes unto this Honourable Court upon his Oath; and doth profess from the bottom of his Heart, That his Speeches only aimed at the abuses of the inferiour Officers, who in many things dealt most cruelly with him and other Merchants.
There were two of the Clerks of the Privy-Council examined as Witnesses to prove the words, notwithstanding the Defendant confessed the words in his Answer as aforesaid, who proved the words as laid in the Information. And on the sixth of May, 1629. the Cause came to be heard in the Star-Chamber, and the Court were of Opinion that the words spoken were a comparing of his Majesty's Government, with the Government of the Turks; intending thereby to make the People believe, that his Majesty's happy Government may be termed Turkish Tyranny; and therefore the Court fined the said Mr. Chambers in the Sum of 2000l. to his Majesty's use, and to stand committed to the Prison of the Fleet, and to make submission for his great offence, both at the Council-Board, in Court of Star-Chamber, and at the Royal-Exchange.
There was a great difference of opinion in the Court about the Fine: And because it is a remarkable Case, here followeth the names of each several person who gave sentence, and the Fine they concluded upon, viz.
And all (except the two Chief Justices) concurred for a Submission also to be made. And accordingly the Copy of the Submission was sent to the Warden of the Fleet, from Mr. Attorney-General, to shew the said Richard Chambers, to perform and acknowlege it; and was as followeth:
I Richard Chambers of London, Merchant, do humbly acknowlege, that whereas upon an Information exhibited against me by the King's Attorney-General, I was in Easter-Term last sentenced by the Honourable Court of Star-Chamber, for that in September last, 1628. being convented before the Lords and others of his Majesty's most Honourable Privy-Council-board, upon some Speeches then used concerning the Merchants of this Kingdom, and his Majesty's well and gracious usage of them; did then, and there, in insolent, contemptuous, and seditious manner, falsely and maliciously say and affirm, That they, meaning the Merchants, are in no parts of the World so screwed and wrung as in England; and that in Turkey they have more encouragement. And whereas by the Sentence of that Honourable Court, I was adjudged, among other punishments justly imposed upon me, to make my humble acknowledgment and submission of this great offence at this Honourable Board, before I should be delivered out of the Prison of the Fleet, whereto I was then committed, as by the said Decree and Sentence of that Court, among other things it doth and may appear: Now I the said R. Chambers, in obedience to the Sentence of the said Honourable Court, do humbly confess and acknowlege the speaking of these words aforesaid, for the which I was so charge, and am heartily sorry for the same; and do humbly beseech your Lordships all to be honourable intercessors for me to his Majesty, that he would be graciously pleased to pardon this great error and fault so committed by me.
All the abovesaid Contents and Submission, I Richard Chambers do utterly abhor and detest, as most unjust and false; and never till death will acknowlege any part thereof.
Wo to them that devise iniquity, because it is in the power of their hand, and they covet fields, and take them by violence; and houses, and take them away: so they oppress a man and his house, even a man and his heritage.
If thou seest the oppression of the poor, and violent perverting of judgment and justice in a Province, marvel not at the matter: for he that is higher than the highest regardeth, and there be higher than they.
Afterwards in the Term of Trinity, the 5th year of King Charles, it is found in the great Roll of this year, that there is demanded there, of Richard Chambers of London, Merchant, 2000l. for a certain Fine imposed on him, hither sent by virtue of a Writ of our said Lord the King, under the foot of the great Seal of England, directed to the Treasurer and Barons of this Exchequer, for making execution thereof to the use of the said Lord the King, as is there contained; and now, that is to say, in the Utas of the Blessed Trinity, this Term, comes the said Richard Chambers in his own proper person, and demands Oyer of the demand aforesaid, and it is read unto him; and he demands Oyer also of the Writ aforesaid, under the foot of the Great Seal of England hither sent, and is read unto him in these words:
Charles by the Grace of God, of England, Scotland, France and Ireland, King, Defender of the Faith, &c. To his Treasurer and Barons of his Exchequer, health. The Extrete of certain Fines taxed and adjudged by us and our Council, in our said Council, in our Court of Star-Chamber, in the Term of St. Michael, the Term of St. Hillary, and the Term of Easter last past, upon Thomas Barns, of the Parish of St. Clements Danes in the County of Middlesex, Carpenter, and others, severally and dividedly, as they be there severally assessed, We send unto you included in these presents, commanding, that looking into them, you do that which by Law you ought to do against them, for the levying of those Fines. Witness our self at Westminster, the 21st of May, in the year of our Reign the 5th Mutas.
"In the Term of Easter, the fifth year of King Charles, of Richard Chambers of London, Merchant, 2000l. which being read, heard, and by him understood, he complains, that he is grievously vexed and inquieted by colour of the Premises; and that not justly, for that protesting, that the said Great Roll, and the matter therein contained, is not in Law sufficient, to which he hath no need, nor is bound by Law to answer; yet for Plea the said Richard Chambers saith, That he, of the demand aforesaid, in the Great Roll aforesaid mentioned, and every parcel thereof, ought to be discharged against the said Lord the King, for that he said, That he from the time of the Taxation of the aforesaid Fine, and long before, was a Freeman and a Merchant of this Kingdom; that is to say, In the Parish of the Blessed Mary of the Arches, in the Ward of Cheap, London. And that by a certain Act in the Parliament of the Lord Henry late King of England the Third, held in the ninth year of his Reign, it was provided by Authority of the said Parliament, That a Freeman shall not be amerced for a little offence, but according to the manner of the said offence; and fora great offence, according to the greatness of the offence, saving to him his Contenement or Freehold; and a Merchant in the same manner, saving unto him his Merchandize; and a Villain of any other than the King after the same manner to be amerced, saving his Wainage; and none of the said Amerciaments to be imposed but by the Oaths of good and lawful Men of the Neighbourhood: And by a certain other Act in the Parliament of the Lord Edward, late King of England, the first, held in the Third year of his Reign, it was and is provided, That no City, Burrough, or Town, nor any Man, shall be amerced, without reasonable cause, and according to his Trespass; that is to say, A Freeman, saving to him his Contenemennt; a Merchant, saving to him his Merchandize; and a Villain, saving to him his Wainage: and this by their Peers. And by the same Act in the Parliament of the said Lord Henry, late King of England the Third, held in the ninth year of his Reign aforesaid, it was and is provided by Authority of the said Parliament, That no Freeman should be taken or imprisoned, or disseized of his Freehold, or Liberties, or Free-Customs, or outlawed, or banished, or any way destroyed. And that the Lord the King should not go upon him, nor deal with him, but by a lawful Judgment of his Peers, or by the Law of the Land. And by a certain Act in Parliament of the Lord Edward, late King of England the third, held in the fifth year of his Reign, it was and is provided by the Authority of the said Parliament, That no man henceforward should be attached by reason of any Accusation, nor pre-judged of Life or Member, nor that his Lands, Tenements, Goods or Chattels should be seized into the hands of the Lord the King against the form of the Great Charter, and the Law of the Land. And by a certain Act in the Parliament of the Lord Henry, late King of England the Seventh, held in the third year of his Reign, reciting, that by unlawful Maintenances given of Liveries, Signs, and Tokens, and retainders by Indentures, Promises, Oaths, Writings, and other Imbraceries of the Subjects of the said Lord the King, false Demeanors of Sheriffs, in making of Pannels, and other false Returns, by taking of money by Jurors, by great Riots and unlawful Assemblies the Policy and good Government of this Kingdom was almost subdued: And by not punishing of the said inconveniences, and by occasion of the premisses, little or nothing was found by Inquisition; by reason thereof, the Laws of the Land had little effect in their execution, to the increase of Murders, Robberies, Perjuries, and Insecurities of all men living, to the loss of their Lands, and Goods, to the great displeasure of Almighty God. It was ordained for reformation of the premisses, by authority of the said Parliament, that the Chancellor and Treasurer of England for the time being, and the Keeper of the Privy-Seal of the Lord the King, or two of them, calling to them one Bishop, one Lord Temporal of the most Honourable Council of the Lord the King, and two Chief Justices of the King's Bench, and Common-Pleas for the time being, or two other Justices in their absence, by Bill or Information exhibited to the Chancellor for the King, or any other, against any person, for any other ill behaviours aforesaid, have authority of calling before them, by Writ of Privy-Seal, such Malefactors, and of examining them and others by their discretion, and of punishing such as they find defective therein, according to their demerits, according to the form and effect of the Statutes thereof made, in the same manner and form as they might and ought to be punished, if they were thereof convinced according to the due course of Law. And by a certain other Act in the Parliament of the Lord Henry, late King of England, the Eighth, held in the one and twentieth year of his Reign, reciting the offences in the foresaid Statute of the said late King Henry the Seventh, before-mentioned, by authority of the said Parliament, it was and is ordained and enacted, That henceforward the Chancellor, Treasurer of England, and the President of the most Honourable Privy-Council of the King, attending his most honourable Person for the time being, and the Lord Keeper of the Privy-Seal of the Lord the King, or two of them, calling to them one Bishop, and one Temporal Lord, of the most Honourable Council of the Lord the King, and two Chief Justices of the King's Bench and Common Pleas for the time being, or two Justices in their absence, by any Bill or Information then after to be exhibited to the Chancellor of England, the Treasurer, the President of the said most Honourable Council of the Lord the King, or the Keeper of the Privy-Seal of the Lord the King for the time being, for any misdemeanor in the aforesaid Statute of King Henry the Seventh aforesaid before recited, from henceforth have full power and authority of calling before them, by Writ or by Privy-Seal, such Malefactors, and of examining of them and others by their discretion, and of punishing those that are found defective according to their demerits. According to the form and effect of the said Statute of the aforesaid Lord King Henry the Seventh, and of all other Statutes thereupon made not revoked and expired, in the same manner and form as they might and ought to be punish'd, if they were convicted according to the due order of the Laws of the said Lord the King. And by the aforesaid Writ, under the foot of the Great Seal, it manifestly appears, that the said Fine was imposed by the Lord the King and his Council, and not by the Legal Peers of the said Richard Chambers, nor by the Law of the Land, nor according to the manner of the pretended offence of the said Richard Chambers, nor saving unto him his Merchandize, nor for any offence mentioned in the said Statutes: All and singular the which, the said Richard Chambers is ready to verify to the Court, &c. and demands judgment; and that he be discharged of the said 2000l. against the said Lord, the now King; and that as to the Premisses he may be dismissed from this Court.
With this Plea, he annexed a Petition to the Lord Chief Baron, and also to every one of the Barons, humbly desiring the filing of the Plea, with other Reasons in the manner of a motion at the Bar, because he said, Counsel would not move, plead, nor set hand to it, as further appeareth.
The Copy of the Order upon Mr. Attorney's Motion in the Exchequer, the 17th of July, 1629. after the Plea put in, and order to file it. Per the Lord Chief Baron.
Touching the Plea put into this Court by Richard Chambers, to discharge himself of a Fine of 2000l. set on him in the Star-chamber, forasmuch as Sir Robert Heath Knight, his Majesties Attorney-General, informed this Court, that the said Chambers in his said Plea recites divers Statutes, and Magna Charta, and what offences are punishable in the Star-chamber, and how the proceedings ought to be; and upon the whole matter concludes, That the said Fine was imposed by the King and his Council, and not by a Legal Judgment of his Peers, nor by the Laws of the Land, nor according to the manner of his offence, nor saving his Merchandize, nor for any offence mentioned in the said Statutes. Which Plea, Mr. Attorney conceiving it to be very frivolous and insufficient, and derogatory to the honour and jurisdiction of the Court of Star-chamber, humbly prayeth might not be allowed of, nor filed: It is therefore this day ordered That the said Plea shall be read on Saturday next, and then upon hearing the King's Council, and the Council of the said Richard Chambers, this Court will declare their further Order therein; and in the mean time the said Plea is not to be filed nor delivered out.
"That he was committed to the Fleet by Virtue of a Decree in the Star-chamber, by reason of certain words he used at the Council-Table, (viz.) That the Merchants of England were screwed up here in England more than in Turkey. And for these and other Words of defamation of the Government, he was censured to be committed to the Fleet, and to be there imprison'd until he had made his submission at the Council Table, and to pay a Fine of 2000l. And now at the Bar he prayeth to be delivered, because this Sentence is not warranted by any Law or Statute: For the Statute of 3 Hen. 7. which is the foundation of the Court of Star-chamber, doth not give them any authority to punish for words only. But all the Court informed him, That the Court of Star-Chamber was not erected by the Statute of 3 H. 7. but was a Court many Years before, and one of the most high and honourable Courts of Justice: And to deliver one who was committed by the Decree of one of the Courts of Justice, was not the usage of this Court; and therefore he was remanded.
That in the Parliament held in the Years 1627 and 1528, it was voted and declared by the honourable House of Commons, That whosoever shall counsel or advise the taking or levying of the Subsidy of Tunnage and Poundage, not granted by Parliament, or shall be any Actor or Instrument therein, shall be reputed an Innovator in the Government, and a capital Enemy to the Kingdom and Common-wealth; and if any Merchant or Person whatsoever shall voluntarily yield or pay the said Subsidy of Tunnage and Poundage, not being granted by Parliament, they shall likewise be reputed Betrayers of the Liberties of England, and Enemies to the same, as may appear by the said Order upon Record.
In submission and obedience whereunto, the Petitioner first opposed and withstood the payment of Tunnage and Poundage (until they were setled by Parliament) and all other illegal Taxes; for which submission and obedience, in the Years 1628 and 1629, the Petitioner had 7060 Pounds of his Goods wrongfully taken and detained from him by the late King's Officers and Farmers of the Custom-House of London for pretended Duties, and a heavy Sentence and Fine in the Star-Chamber, which was imposed upon him in the Year 1629; besides which Losses, the Petitioner further suffered in his Person by six whole Years Imprisonment in the Fleet, for not submitting to that Sentence and Fine: And in the Year 1637, nine Months Imprisonment in Newgate for withstanding Ship-money; by which Losses and Imprisonments, the Petitioner was put by the Exercise of his Calling, and was wounded in his Credit and Reputation.
Which Sufferings the honourable House of Commons (Upon the Petitioners complaint in the Year 1640,) taking into their grave considerations, were pleased to refer the Examination thereof to a Committee of fifty Members, wherein were included the Committee for the Navy and Customs; who being well satisfied of the Truth thereof, by Oath, and other good sufficient Proofs upon Record, drew up their Report, that the Petitioner ought then to have 13680 Pounds in part of Reparation, leaving the rest of those Reparations to the further Judgment of the Honourable House, as by the annexed Copy of that Report may further appear.
In pursuit of which Report, the Parliament then levied and received from the old Farmers and Officers of the Customs 50000 Pounds for wrongs and abuses done to the Petitioner (chiefly) and other Merchants, intending first to give to the Petitioner satisfaction out of the same, because he was the first Man that opposed the pretended Duties, and the greatest Sufferer.
Whereupon in the Year 1642, the Petitioner was chosen Alderman, and in the Year 1644 Sheriff of the City of London: Which places the Petitioner earnestly endeavoured to shun; but such were the earnest Importunities, and persuasive Encouragements of divers Members of the Honourable House, (who then desired to have the Petitioner in place of Trust, for his former service to the Common-wealth) that the Petitioner was constrained to accept not only of the place of Alderman, but further underwent the Office and Charge of Sheriff of London, which stood the Petitioner in 4000 Pounds that Year.
But notwithstanding the aforesaid Promises and Intents of the Parliament to give the Petitioner satisfaction, such were the great compulsive exigents, and urgent necessities of those times, caused by the publick distractions, that the said Monies were converted to the publick use; therefore the Parliament desired the Petitioner to have a little patience, promising him speedy satisfaction as well for the forbearance as for the principal debt: But the distractions continuing, the Petitioner had neither Interest nor any part of his principal, the Parliament in the Year 1648. in part of satisfaction, settled the Petitioner in the Office of Surveyor and Check in the Custom-house of London then worth at least 600l. per Annum; but the Petitioner having enjoyed that place only eight Months, was causelesly outed by sinister information of intruders, who have enjoyed that Office, and divided the profit thereof between them ever since that intrusion.
Moreover, the late King by Privy-Seal, owes to the Petitioners Wife (who is the Relict of Mr. Thomas Ferrer) for Linnen Cloth 5000l. and for Money lent 1200l. for which she was assigned satisfaction out of the Customs of Tobacco; besides, she was further assigned out of Sir Thomas Dawes Office one Hundred Marks per Annum; all which debts likewise lie wholly unsatisfied, to the Petitioners great prejudice.
Besides the aforesaid losses, hinderances, expences sufferings, and forbearances of the profit of the said Office, the Petitioner from time to time hath laid out himself for the common good, in acting, lending, spending, (and serving) when others refused; exposed himself to that eminent danger at Branford, by leading out a Troop of Horse for the Privileges, Liberties, and Rights of the City of London and Common-wealth, insomuch, that thereby, and for want of his satisfaction aforesaid, the Petitioner having consumed his Estate, bath been constrained to sell and mortgage some part of his Lands to pay Creditors, and to maintain his Family, having a Wife and nine Children; and is likely to be undone for obeying the Parliaments Commands, unless by the justice and commiseration of this honourable Assembly he be speedily relieved and righted for that ever since the said reported sum, the Petitioner from time to time hath made his humble Addresses to the supreme Powers for the time being, for satisfaction thereof; and to be restored to the said Office, but could not prevail.
The Petitioner therefore humbly prays, That he may not perish for acting for the publick good according to the Declaration of Parliament, but that now after twenty-six Years suffering, whereof twelve Years in fruitless and wearisome Waitings, this Honourable Assembly would now be pleased to take the unparallel'd Sufferings of the Petitioner into their grave considerations, for some speedy course for the Petitioners satisfaction, to pay his Debts, and redeem his Lands by ordering him the one Moiety of his Debt in ready Money out of the daily Customs of London, (from whence his first losses and sufferings sprang) and the other Moiety to be discompted upon such Goods as the Petitioner shall make Entries of by Exportation or Importation in the Custom-house, London, until his Debt with the Interest be fully satisfied and paid; or any other speedy way, as in your grave Wisdoms shall seem meet. And in like manner for his Wives Debt, which is to pay Debts and Legacies: And that the Petitioner may forthwith be restored to, and settled in the said Office, and have Reparations from the Intruders.
The Petitioner being wearied out with twelve Years attendance upon one Parliament, in hopes of Reparation for his Imprisonment, Troubles, and Losses, during the eleven Years former interval of Parliament, in standing for the Liberty of the Subject, grew infirm; and being not relieved, was reduced to a low Estate and Condition: He died in Summer 1658. being about the Age of Seventy Years.
Trinity 5 Car. Banco Regis. The first day of this Term, upon a Habeas Corpus to Sir Allen Apsley the Lieutenant of the Tower, to bring here the body of John Selden Esq; with the cause of Deteiner: He returned the same Cause as in Mr. Stroud's Case. And Mr. Littleton of the Inner-Temple, of Counsel with Mr. Selden, moved, that the Return was insufficient in substance; therefore pray'd that he might be Bail'd: And said, That it was a matter of great consequence, both to the Crown of the King, and to the Liberty of the Subject: But as for the difficulty of Law contained in it, he said (under favour) the Case cannot be said Grand. And so proceeded to his Argument (which, for the Reasons before-mentioned, we have postponed) and concluded, that the Prisoner ought to be Bailed.
The same day Sir Miles Hubbard, Benjamin Valentine, Denzil Holles, Esq; were at the Bar upon the Habeas Corpus, directed to several Prisons. And their Counsel were ready at the Bar to have argued the Case for them also. But because the same Return was made for them as for Mr. Selden, they all declared, they would rely on this Argument made by Mr. Littleton.
Some few days after, Sir Robert Heath, the King's Attorney-General, argued, that this Return was good; and that Mr. Selden and the rest of the Parties ought not to be Bailed; and that within the Return there appears good cause of their Commitment, and of their detaining also. He said, The Case is great in Expectation and Consequence, and concerns the Liberty of the Subject on one part, whereof the Argument is plausible; and on the other part it concerns the Safety and Sovereignty of the King, which (he said) is a thing of great weight; and that the consideration of both pertains to you the Judges, without sleighting the one, or too much elevating the other: And so proceeded to his Argument (of which, more at large hereafter) and concluded, that the Prisoners ought to be remanded.
When the Court was ready to have delivered their Opinions in this great business, the Prisoners were not brought to the Bar according to the Rule of the Court. Therefore Proclamation was made, for the keepers of the several Prisons to bring in their Prisoners; but none of them appeared, but the Marshal of the King's Bench, who informed the Court that Mr. Stroud, who was in his Custody, was removed Yesterday, and put in the Tower of London by the Kings own Warrant; and so it was done with the other Prisoners, for each of them was removed out of his Prison in which he was before. But notwithstanding it was pray'd by the Counsel for the Prisoners, that the Court would deliver their Opinion as to the matter in Law; but the Court refused to do that, because it was to no purpose; for the Prisoners being absent, they could not be bailed, delivered, or remanded.
The Evening before, there came a Letter to the Judges of this Court from the King himself, informing the Court with the Reasons, wherefore the Prisoners were not suffered to come at the day appointed for the Resolution of the Judges. These were the Words of the Letter.
Trusty and well-beloved, We greet you well. Whereas by our special commandment we have lately removed Sir Miles Hubbard, Walter Long, and William Stroud from the several Prisons where they were formerly committed, and have now sent them to our Tower of London; understanding there are various Constructions made thereof, according to the several Apprehensions of those who discourse of it, as if we had done it to decline the course of Justice: We have therefore thought fit to let you know the true Reason and Occasion thereof; as also, why we commanded those and the other Prisoners should not come before you the last day: We (having heard how most of them awhile since did carry themselves insolently and unmannerly both towards us and your Lordships) were and are very sensible thereof; and though we bear your selves gave them some Admonition for that miscarriage, yet we could not but resent our Honour, and the Honour of so great a Court of Justice so far, as to let the World know how much we dislike the same: And having understood, that your Lordships, and the rest of our Judges and Barons of our Court of Common-Pleas and Exchequer (whose Advices and Judgments we have desired in this great Business, so much concerning our Government) have not yet resolved the main question; we did not think the presence of those Prisoners necessary; and until we should find their Temper and Discretions to be such as may deserve it, we were not willing to afford them favour. Nevertheless, the respect we bear to the Proceedings of that Court, bath caused us to give way, that Selden and Valentine should attend you to morrow, they being sufficient to appear before you, since you cannot as yet give any resolute Opinion in the main Point in Question. Given under our Signet at our Mannor at Greenwich, this 24th of Junii, in the fifth Year of our Reign.
Trusty and Well-beloved, We greet you well. Whereas by our Letters of this days date, we gave you to understand our pleasure, That of those Prisoners which, by our commandment, are kept in our Tower of London, Selden and Valentine should be brought to morrow before you; now upon more mature deliberation, we have resolved, That all of them shall receive the same treatment, and that none shall come before you, until we have cause given us to believe they will make a better demonstration of their Modesty and Civility, both towards us and your Lordships, than at their last appearance they did.
Note, That in this Term a Habeas Corpus was prayed to the Pursevant of Arms for four Constables of Hertfordshire, to whose custody they were committed by the Lords of the Privy-Council; and the Habeas Corpus was granted on their behalf: but then they were committed to the custody of other Pursevants; and so upon every Habeas Corpus they were removed from Pursevant to Pursevant, and could have no fruit of their Habeas Corpus all this Term.
There wanted not some, who, upon the Kings dissolution of this Parliament, and his ill success in two former Parliaments, did advise, that his Majesty for the future might be no more troubled with the impertinencies of Parliaments; holding out for example the like discontinuance for assembling the Three Estates in France, which was in time about four years before the Blazing-Star, by Lewis the Eleventh, King of France, who by reason the Third Estate, representing the Commons, did incroach (as he declared) too much upon the Clergy and Nobility, the King dissolved that Parliament of the Three Estates, and never had a free Election of the Third Estate afterwards, but ordained another kind of Meeting instead thereof, which is called L' Assembly des Notables, an Assembly of certain eminent Persons of his own Nomination; whereunto he added some Counsellor out of every Court of Parliament: there being Eight in all in France, and being few in number, and of his own Nomination, would more readily comply with the Kings proposals, and not dispute his will and pleasure, as the general Assembly of the Three Estates had wont to do, when the King trenched upon the Liberty and Property of the Subject: which alteration of the Government, as to the Third Estate, hath ever since exposed the Commons to much vassalage and misery, as at this day is apparent by the meanness of their livelihood, and wearing of wooden Shoes.
That which gives us occasion to mention this last particular, is a little Tract composed to the said end and purpose, and which did this Trinity long Vacation walk abroad, and went from hand to hand, sometime at Court, sometime in the Country, and sometime at the Inns of Court; which we here set down verbatim in the Appendix, that the humour of the Author thereof may be the more clearly discerned; and when we come to its proper time and place, you shall see what success this Pamphlet had, when it was questioned in the Star-Chamber.
Towards the latter end of this Vacation, all the Justices of the King's Bench, being then in the Country, received every own of them a Letter to be at Serjeants-Inn upon Michaelmas-day. These Letters were from the Council-Table; and the cause expressed in them, was, That his Majesty had present and urgent occasion to use their service. The Judges came up accordingly on Tuesday, being Michaelmas-day. The next morning about four a Clock, Letters were brought to the Chief Justice from Mr. Trumbal, Clerk of the Council then attending, that he and Judge Whitlock, one of the Judges of that Court, should attend the King that morning so soon as conveniently they could: Which the Chief Justice and that Judge did at Hampton that morning; where the King taking them apart from the Council, fell upon the business of the Gentlemen in the Tower, and was contented they should be bailed, notwithstanding their obstinacy, in that they would not give the King a Petition, expressing, That they were sorry he was offended with them. He shewed his purpose to proceed against them by the Common-Law in the King's Bench, and to leave his proceeding in the Star-Chamber. Divers other matters he proposed to the said Judges by way of advice, and seemed well contented with what they answered, though it was not to his mind; which was, That the offences were not capital, and that by the Law the Prisoners ought to be bailed, giving security to the good behaviour. Whereupon the King told them, That he would never be offended with his Judges, so they dealt plainly with him, and did not answer him by Oracles and Riddles. Both these Judges did at that time what good Office they could to bring the King on to heal this breach.
The first day of Michaelmas Term it was moved by Mr. Mason to have the Resolution of the Judges; and the Court with one voice said, That they are now content that they should be bailed, but that they ought to find Sureties also for the good behaviour. And Jones Justice said, That so it was done in the Case which had been often remembred to another purpose, to wit, Russels Case in 9 E. 3. To which Mr. Selden answered (with whom all the other Prisoners agreed in opinion) That they have their Sureties ready for the Bail, but not for the good behaviour; and desire, that the Bail might first be accepted, and that they be not urged to the other; and that for these Reasons:
First, The Case here hath long depended in Court (and they have been imprisoned for these thirty weeks) and it had been oftentimes argued on the one side and the other; and those that argued for the King, always demanded that we should be remanded; and those which argued on our side, desired that we might be bailed or discharged: but it was never the desire of the one side or the other, that we should be bound to the good behaviour. And in the last Term four several days were appointed for the resolution of the Court, and the sole point in question was, If bailable or not. Therefore be now desires, that the matter of bail and of good behaviour may be severed, and not confounded.
Secondly, Because the finding of Sureties of good behaviour is seldom urged upon Returns of Felonies or Treasons. And it is but an implication upon the Return, that We are culpable of those matters which are objected.
3. We demand to be bailed in point of Right; and if it be not grantable of Right, we do not demand it: but the finding of Sureties for the good behaviour is a point of discretion merely, and we cannot assent to it, without great offence to the Parliament, where these matters which are surmised by Return were acted; and by the Statute of 4 Hen. 8. all punishments of such nature are made void and of none effect, Therefore, &c.
The Return doth not make mention of any thing done in Parliament, and we cannot, in a judicial way, take notice that these things were done in Parliament. And by Whitlock, The surety of good behaviour, is as a preventing medicine of the damage that may fall out to the Common-wealth; and it is an Act of Government and Jurisdiction, and not of Law. And by Crook, it is no inconvenience to the Prisoners: for the same bail sufficeth, and all shall be written upon one piece of Parchment. And Heath Attorney-General said, That by the command of the King he had an Information ready in his hand to deliver in the Court against them. Hide Chief-Justice: If now you refuse to find Sureties for the good behaviour, and be for that cause remanded; perhaps we afterwards will not grant Habeas Corpus for you, inasmuch as we are made acquainted with the cause of your Imprisonment.
Ashley the King's Serjeant offered his own bail for Mr. Holles, one of the Prisoners (who had married his Daughter and Heir) but the Court refused it; for it is contrary to the course of the Court, unless the Prisoner himself will become bound also.
And Mr. Long that had found Sureties in the Chief Justices Chamber for the good behaviour, refused to continue his Sureties any longer, inasmuch as they were bound in a great sum of 2000l. and the good behaviour was a ticklish point. Therefore he was committed to the custody of the Marshal, and all the other Prisoners were remanded to the Tower, because they would not find Sureties for the good behaviour.
Accordingly the same Term an Information was exhibited by the Attorney-General against Sir John Elliot, Denzil Holles, Sir Benjamin Valentine, reciting, That a Parliament was summoned to be held at Westminster, 17 Martii tertio Caroli Regis, ibid. inchoat. and that Sir John Elliot was duly elected, and returned Knight for the County of Cornwal, and the other two Burgesses of Parliament for other places; and Sir John Finch chosen Speaker.
That Sir John Elliot machinans & intendens, omnibus viis & modis, seminare & excitare discord, evil will, murmurings and seditions, as well versus Regem, Magnates, Prelatos, Proceres, & Justiciarios suos, quam inter Magnates, Proceres, & Justiciarios, & reliquos Subditos Regis, & totaliter deprivare & avertere regimen & gubernationem Regni Angliæ tam in Domino Rege, quam in Conciliaris & Ministris suis cujuscunque generis; & introducere tumultum & confusionem, in all Estates and Parts, & ad intentionem, That all the Kings Subjects should withdraw their affections from the King. The 23d of February, An. 4 Carol. in the Parliament, and hearing of the Commons, falso, malitiose & seditiose, used these words, the Kings Privy-Council, his Judges, and his Counsel learned, have conspired together to trample under their feet the Liberties of the Subjects of this Realm, and the Liberties of this House. And afterwards upon the 2d of March, Ann. 4. aforesaid, the King appointed the Parliament to be adjourned till the 10th of March next following, and so signified his pleasure to the House of Commons: And that the three Defendants the said 2d day of March, 4 Car. malitiose, agreed, and amongst themselves conspired to disturb and distract the Commons, that they should not adjourn themselves according to the Kings pleasure before signified; and that the said Sir John Elliot, according to the agreement and conspiracy aforesaid, had maliciously in propositum & intentionem predict. in the House of Commons aforesaid, spoken these false, malicious, pernicious and seditious words precedent, &c. And that said Denzil Holles according to the agreement and conspiracy aforesaid, between him and the other Desendants, then and there, falso, malitiose & seditiose, uttered hec falsa, malitiosa, & scandalosa verba precedentia, &c. And that the said Denzil Holles and Benjamin Valentine, secundum agreamentum & conspirationem predict. & ad intentionem & propositum predict. uttered the said words upon the said 2d of March, after the signifying the Kings pleasure to adjourn: And the said Sir John Finch the Speaker, endeavoured to get out of the Chair according to the Kings Command, They vi & armis manu forti & illicito, assaulted, evil-intreated, and forcibly detained him in the Chair; and afterwards, he being out of the Chair, they assaulted him in the House, and evil-intreated him, & violenter manu forti & illicito drew him to the Chair, and thrust him into it: whereupon there was a great tumult and commotion in the House, to the great terror of the Commons there assembled, against their Allegiance, in maximum contemptum, and to the disherison of the King, his Crown and Dignity: for which, &c.
To this Information the Defendants put in a Plea to the Jurisdiction of the Court: Forasmuch as these offences supposed to have been done in Parliament, they ought not to be published in this Court, or any other except in Parliament. And the Attorney General moved to the Court to overrule the Plea as to the Jurisdiction of the Court; and this he said, the Court might do, although he did not demurr upon the Plea; but the Court would not over-rule the Plea; but gave a day to join in demurr that Term. And on the first day of the next Term, the Record to be read; and within a day after argued, at the Bar.
An Information was exhibited into the Star-Chamber, by Sir Robert Heath Knight, his Majesties Attorney-General, Plaintiff, against the said Walter Long, Defendant, for a great and presumptuous contempt against his Majesty, for breach of Duty and Trust of his Office, and for manifest and wilful breach of his Oath taken as High Sheriff of the County of Wilts, and not residing and dwelling in his own person in the said County, according to the said Oath; but being chosen one of the Citizens for the City of Bath, in the County of Somerset, to serve for the said City in the last Parliament, by colour thereof he remained at London or Westminister during the time of that Parliament by the space of three months and above, in neglect of his duty, and in manifest contempt of the Laws of this Kingdom: Which cause was now, by his Majesties said Attorney-General, brought to hearing upon the Defendants own confession. And upon opening the Answer, and reading the Examination of the said Defendant, it appeared to this Court, That the said Defendant Long was by his now Majesty made High Sheriff of the County of Wilts in or about November, in the third year of his Majesties Reign, and received his Patent of Sheriffwick for the said County about ten days after; and that he took an Oath before one of the Masters of the Chancery, for the due execution of the said Office of Sheriff of the said County. In which Oath, as appear'd by the same there read in Court, he did swear, That he would in his own person remain within his Bayliffwick during all the time of his Sheriffwick, unless he had the Kings license to the contrary; and that at an Election of Citizens for the said City of Bath, the said Defendant Long was chosen one of the Citizens to serve for the said City of Bath in the Parliament then summoned, to be holden and commence upon the 17th day of March in the said third year of his Majesties Reign; and being so chosen, and returned by the Sheriff of the County of Somerset, notwithstanding his said Oath taken to remain in his proper person, within his Bayliffwick, unless he were licensed by his Majesty, he the said Defendant did make his personal appearance in the Commons House of Parliament, at the City of Westminster, in the County of Middlesex, and did, during the most part of the said Parliament, continue in and about the City of London and Westminster, and did attend in the Parliament as a Citizen for the said City of Bath: During all which time he likewise was, and continued High Sheriff for the said County of Wilts, and had no particular license from his Majesty to the contrary. Upon consideration whereof, as also of the particular causes and reasons of the Defendants Demurrer and Plea formerly exhibited unto the said Information, the benefit whereof was by Order of the Court reserved unto the Defendant to be debated and considered of at the hearing of this cause, and of divers other matters now urged for the Defendant, both to have justified his the said Defendants attendance in Parliament, and his not residence in person in the County whereof he was then Sheriff; and amongst other things that it properly belonged to the House of Parliament to judge of the justness or unjustness of the said Election; and upon grave and mature consideration thereof had and taken by the Court, their Lordships did not only conceive the said Demurrer and Plea, and other the Arguments and Reasons used by the Defendant and his Council to be of no weight or strength, but also to be in opposition and derogation of the Jurisdiction of the Court; the reasons moved and urged for the Defendants excuse or justification being clearly answered, and the charges of the Information made good by Mr. Attorney-General, and others of his Majesties Counsel learned. And therefore the whole Court were clear of opinion, and did so declare, "That the said Defendant, who at that time, as High Sheriff, had the custody and charge of the County of Wilts committed unto him by his Majesty, and had taken his Oath according to the Law to abide in his proper person within his Bayliffwick during all the time of his Sheriffwick as aforesaid, and whose trust and imployment did require his personal attendance in the said County, had not only committed a great offence in violating the said Oath so by him taken, but also a great misdemeanor in breach of the trust committed unto him by his Majesty, and in contempt of his Majesties pleasure signified unto him by and under his Highness Great Seal, when he granted unto him the said Office of Sheriffwick aforesaid. For which said several great offences in breach of his said Oath, neglect of the trust and duty of his Office, and the great and high contempt of his Majesty, their Lordships did hold the same Defendant worthy the Sentence of the Court; the rather, to the end that by this example the Sheriffs of all other Counties may be deterr'd from committing the like offences hereafter, and may take notice, that their personal residence and attendance is required within their Bayliffwicks during the time of their Sheriffwick. The Court therefore thought fit, ordered, adjudged, and decreed, That the said Defendant should stand and be committed to the Prison of the Tower, there to remain during his Majesties pleasure, and also pay a fine of two thousand Marks to his Majesties use; and further make his humble submission and acknowledgment of his offence both in the Court of Star-chamber, and to his Majesty, before his thence enlargement.
The same Term Mr. Mason argued in the Kings Bench for Sir John Elliot against the Information preferred against him (amongst others) by Sir Robert Heath, the Kings Attorney-General; and the same day the Attorney-General argued in maintenance of the said Information: The Judges also the same day spake briefly to the Case, and agreed with one voice, That the Court, as this case is, shall have Jurisdiction, although that these offences were committed in Parliament, and that the imprisoned Members ought to answer.
Jones began and said, "That though this Question be now newly moved, yet it is an antient Question with him; for it had been in his thoughts these eighteen Years. For this Information there are three Questions in it:
- 1. Whether the matters informed be true or false: And this ought to be determined by Jury or Demurrer.
- 2. When the matters of the Information are found or confessed to be true, if the Information be good in substance.
- 3. Admit that the offences are truly charged, if this Court hath power to punish them: And that is the sole Question of this day.
"And it seems to me, that of these offences, although committed in Parliament, this Court shall have Jurisdiction to punish them. The Plea of the Defendants here to the Jurisdiction being concluded with a Demurrer, is not peremptory unto them, although it be adjudged against them; but if the Plea be pleaded to the Jurisdiction, which is found against the Defendant by Verdict, this is peremptory.
- 1. If the matter be voted in Parliament, when it is finished, it can be punished and examined in another Court.
- 2. If the matter be commenced in Parliament, and that ended, if afterward it may be questioned in another Court.
First, Quia interest Reipublicæ ut maleficia non maneant impunita: and there ought to be a fresh punishment of them. Parliaments are called at the Kings pleasure, and the King is not compellable to call his Parliament; and if before the next Parliament, the party offending, or the Witnesses die, then there will be a failer of Justice.
Secondly, The Parliament is no constant Court; every Parliament mostly consists of several men, and, by consequence, they cannot take notice of matters done in the foregoing Parliament; and there they do not examine by Oath, unless it be in Chancery, as it is used of late time.
Thirdly, The Parliament cannot send Process to make the offenders to appear at the next Parliament; and being at large, if they hear a noise of a Parliament, they will fugam facere, and so prevent their punishment.
To this I say, That this Court of the Kings Bench is a higher Court than the Justices of Oyer and Terminer, or the Justices of Assize: But if an offence be done where the Kings Bench is, after it is removed, this offence may be examined by the Justices of Oyer and Terminer, or by the Justices of Assize. We cannot question the Judgments of Parliaments, but their particular offences.
To this I say, That privilegium est privata Lex & privat. legem. And this ought to be by grant prescription in Parliament, and then it ought to be pleaded for the manner, as is in 33 H. 8. Dy. as it is not here pleaded. Also we are Judges of all Acts of Parliament; as 4 H. 7. Ordnance made by the King and Commons is not good, and we are Judges what shall be said a Session of Parliament, as it is Plowden in Partridges Case. We are Judges of their Lives and Lands, therefore of their Liberties. And 8 Eliz. (which was cited by Mr. Attorney) it was the opinion of Dyer, Oatlyn, Welsh, Brown, and Southcot, Justices, That offences committed in Parliament may be punished out of Parliament. And 3 Ed. 5. 19. it is good Law. And it is usual near the end of Parliaments to set down some petty punishment upon offenders in Parliament, to prevent other Courts. And I have seen a Roll in this Court, in 6 H. 6. where Judgment was given in a Writ of Annuity in Ireland, and afterward the said Judgment was reversed in Parliament in Ireland; upon which Judgment, Writ of Error was brought in this Court, and reversed.
Hide Chief Justice, to the same intent: "No new matter hath been offered to us now by them that argue for the Defendants, but the same Reasons and Authorities in substance, which were objected before all the Justices of England, and Barons of the Exchequer, at Serjeants-Inn in Fleet-street, upon an Information in the Star-Chamber for the same matter. At which time, after great deliberation, it was resolved by all of them, That no offence committed in Parliament, that being ended, may be punished out of Parliament. And no Court more apt for that purpose than this Court in which we are: And it cannot be punished in a future Parliament, because it cannot take notice of matters done in a fore-going Parliament.
"As to that that was said, That an Inferiour Court cannot meddle with matters done in a Superiour; true it is, that an Inferiour Court cannot meddle with Judgments of a Superiour Court; but if particular Members of a Superiour Court offend, they are ofttimes punishable in an Inferiour Court: As, if a Judge shall commit a capital offence in this Court, he may be arraigned thereof at Newgate, 3 E. 3. 19. and 1 Mar. which have been cited, over-rule this Case. Therefore.
- 1. I say in this Case, Nihil dictum quod non dictum prius.
- 2. That all the Judges of England have resolved this very point.
- 3. That now we are but upon the brink and skirts of the Cause: for it is not now in question if these be offences or no; or, if true or false; but only if this Court have Jurisdiction.
But though it be not capital, yet it is criminal, for it is sowing of Sedition to the destruction of the Common-wealth, The Question now is not between us that are Judges of this Court and the Parliament, or between the King and the Parliament; but between some private Members of the House of Commons and the King himself: for here the King himself questions them for those offences, as well he may. In every Common-wealth there is one Supereminent Power, which is not Subject to be questioned by any other; and that is the King in this Common-wealth, who, as Bracton saith, Solum Deum habet ultorem. But no other within the Realm hath this Priviledge. It is true, that that which is done in Parliament by consent of all the House, shall not be questioned else-where; but if any private Members, exeunt personas judicum, & induunt malefacientium personas, & sunt seditiosi, Is there such Sanctimony in the place, that they may not be questioned for it elsewhere? The Bishop of Ross, as the Case hath been put, being Ambassador here, practised matters against the State: And it was resolved, That although Legatus sit Rex in alieno solo, yet when he goes out of the bounds of his Office, and complots with Traytors in this Kingdom, that he shall be punished as an offender here. A Minister hath a great Privilege when he is in the Pulpit; but yet, if in the Pulpit he utter Speeches which are seandalous to the State, he is punishable. So in this Case, when a Burgess of Parliament becomes mutinous, he shall not have the Privilege of Parliament. In my opinion, the Realm cannot consist without Parliaments, but the behaviour of Parliament Men ought to be Parliamentary. No outragious Speeches were ever used against a great Minister of State in Parliament, which have not been punished. If a Judge of this Court utter scandalous Speeches to the State, he may be questioned for them before Commissioners of Oyer and Terminer, because this is no judicial Act of the Court.
To this I put this Case: When a Peer of the Realm is arraigned of Treason, we are not his Judges, but the High-Steward, and he shall be tried by his Peers: But if Errour be committed in this Proceeding that shall be Reversed by Errour in this Court: for that which we do is Coram ipso Rege.
That the Parliament Law differs from the Law by which we judge in this Court in sundry Cases. And for the Instance which hath been made, That by the Statute, none ought to be chosen Burgess of a Town in which he doth not inhabit, but that the usage of Parliament is contrary. But if Information be brought upon the said Statute against such a Burgess, I think that the Statute is a good Warrant for us to give Judgment against him.
But there are sundry Presidents, by which it appears, that the Parliament hath transmitted Matters to this Court; as 2 R. II there being a Question between a great Peer and a Bishop, it was transmitted to this Court, being for Matter of Behaviour: And although the Judges of this Court are but inferiour Men, yet the Court is higher: For it appears by the II Eliz. Dy. That the Earl Marshal of England is an Officer of this Court; and it is always admitted in Parliament, That the Privileges of Parliament hold not in three Cases, to wit, First, In case of Treason. Secondly, In case of Felony. And Thirdly, In suit for the Peace. And the last is our very Case. Therefore, &c.
Crook argued to the same Intent (but I did not well hear him) he said That these offences ought to be punished in the Court, or no where; and all manner of offences which are against the Crown, are examinable in this Court.
And it is true: But every Member of Parliament is not a Court; and if he commit offence, he is punishable here. Our Court is a Court of high Jurisdiction, it cannot take cognizance of real Pleas; but if a real Plea comes by Error in this Court, it shall never be transmitted. But this Court may award a Grand Cape, and other Process usual in real Actions: But of all capital and criminal Causes, we are originally competent Judges, and by consequence of this matter. But I am not of the opinion of Mr. Attorney-General, that the word proditore would have made this Treason. And for the other matters, he agreed with the Judges. Therefore by the Court, the Defendants were ruled to plead further: and Mr. Lenthal of Lincolns-Inn was assigned of Counsel for them.
"The matter of the Information now, by the confession of the Defendants, is admitted to be true, and we think their Plea to the Jurisdiction insufficient for the matter and manner of it. And we hereby will not draw the true Liberties of Parliament-men into Question; to wit, for such matters which they do or speak in Parliamentary manner. But in this case there was a conspiracy between the Defendants to slander the State, and to raise sedition and discord between the King, his Peers and People; and this was not a Parliamentary course. All the Judges of England, except one, have resolved the Statute of 4 H. 8. to be a Private Act, and to extend to Stroud only. But every Member of the Parliament shall have such Priviledges as are there mentioned, but they have no Priviledge to speak at their pleasure. The Parliament is an high Court, therefore it ought not to be disorderly, but ought to give good example to other Courts. If a Judge of our Court shall rail upon the State or Clergy, he is punishable for it. A Member of the Parliament may charge any great Officer of the State with any particular offence; but this was a malevolous accusation in the generality of all the Officers of State, therefore the matter contained within the Information is a great offence, and punishable in this Court.
- 1. That every of the Defendants shall be imprisoned during the Kings pleasure: Sir John Elliot to be imprisoned in the Tower of London, and the other Defendants in other Prisons.
- 2. That none of them shall be delivered out of Prison until he give security in this Court for his good behaviour, and have made submission and acknowledgment of his offence.
- 3. Sir John Elliot, inasmuch as we think him the greatest offender, and the Ringleader, shall pay to the King a Fine of 2000l. and Mr. Holles, a Fine of 1000 Marks: and Mr. Valentine, because he is of less ability than the rest, shall pay a Fine of 500l. And to all this, all the other Justices with one voice accorded.