Historical Collections of Private Passages of State: Volume 3, 1639-40. Originally published by D Browne, London, 1721.
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Mr. Hollis his Speech in the Case of Sir Randal Crew.
Sir Randal Crew Chief Justice, displaced for his Integrity.
These Gentlemen have presented unto your Lordships the sad Object of Justice perverted, Liberty oppressed, of Judgment turned into Wormwood; the Laws, which should be the Bars of our Gates to protect us, keep us, and all that is ours in Safety, made weak and impotent, to betray us unto the Hands of Violence; instead of Props to support us, become broken Reeds to deceive us, and run into our sides when we lean upon them; even so many Snares to entrap and entangle us.
And all this by the Persidiousness of those who are intrusted with our Laws, who call themselves the Guardians, and the Interpreters of the Law; but by their accursed Glosses have confounded the Text, and made it speak another Language, and another Sense, than ever our Ancestors, the Law-makers, intended.
Our Ancestors made Laws to keep themselves, their Posterity after them, in the Posession of their Estates: these Judges could make the Law it self rob us, and dispoil us of our Estates. Were we invaded or persecuted at any Time for pretended Crimes, or rather because they were free from Crimes? And did we put our selves upon a Legal Defence, and shelter ourselves under the Buckler of the Law, use those lawful Weapons, which Justice, and Truth, and the common Right of the Subject did put into our Hands, would this avail us? No: These Judges would make the Law wrest our Weapons from us, disarm us, take away all our Defence, expunge our Answers, even bind us Hand and Foot, and so expose us naked and bound to the mercilessness of Our Opressors. Were our Persons forced, and imprisoned by an Act of Power, would the Law relieve us when we appealed unto it? No: It would join Hands with Violence, and Bitterness to our Sorrow. These Judges would not hear us when we did cry; no Importunity could get a Habeas Corpus: Nay our Cries would displease them, and they would beat us for crying; and overdo the unjust Judge in the Gospel, with whom yet Importunity could prevail.
My Lords, The Commons of England finding themselves in this lamentable Condition, by the wickedness of these Judges, it is no wonder that we complain of them. It is no wonder if the Knights, Citizens, and Burgesses, assembled in Parliament, have sent up some of their Members to stand upon Mount Ebal to curse these Judges; to denounce a Curse upon them who have removed our Land-marks, have taken away the Bound-Stones of the Propriety of the Subject, have left us no meum & tuum; but he that had most Might, had most Right, and the Law was sure to be of his side.
It hath been the Part of these Gentlemen who have spoken before me, to pray for Justice upon those Men, who would not do Justice to others. My Lords, I come upon another Errand, and yet for Justice too; for there is Justice upon Mount Gerizim, as well as upon Mount Ebal. It is as great a Point of Justice to give a Blessing, a Reward where it is due, as Punishment where Punishment is due: for Reward and punishment, Prœmium & Pœna be the two Legs that Justice walks on, and Reward is her Right Leg, the more noble and the more glorious Supporture of that Sacred and Divine Body, that which God himself, the Foundation of Justice, doth more delight in.
Taridor ad Pœnas Deus est, ad Prœmia velox.
Punishment is good as Physick in the Consequence, Reward as wholesom and nourishing Food in the Essence; the one we do, because we must do it as Necessary; the other, because we love to do it, as being Pleasing and Delightful.
Your Lordships then, I doubt not, will as willingly join with the Commons in doing good to a Judge, as in punishing of the bad.
My Lords, We honour them, and reckon them Martyrs for the Commonwealth, who suffer any Thing by defending the Common Right of the Subject, when they will not part with their own Goods contrary to Law; when indeed, their private Interest goes along with it, or rather before it, and the publick Concernment seems to come but in a second Place. Such were those many whom these Judges have oppressed; yet these Men we magnify, and judge worthy of Praise and Reward.
But what Honour then is he worthy of, who merely for the Publick, hath suffered himself to be divested and deprived of his Particular; such a Judge as would lose his Place, rather than to do that which his Conscience told him was prejudicial to the Commonwealth? Is not he worthy of double Honour?
And this did that Worthy Reverend Judge, the Chief Judge of England at that Time, Sir Randal Crew; because he would not by subscribing, countenance the Loan in the First Year of the King, contrary to his Oath and Conscience, he drew upon himself the Displeasure of some great Persons about his Majesty, who put on that Project, which was afterwards condemned by the Petition of Right, in the Parliament of Tertio, as unjust adn unlawful; and by that Means he lost his Place of Chief Jusstice of the King's Bench; and hath these 14 Years, by keeping his Innocency, lost the Profit of that Office, which upon a just Calculation, in so long a Revolution of Time, amounts to 26000l. or thereabout. He kept his Innocency when others let theirs go; when himself and the Commonwealth were alike deserted: which raises his Merit to a higher Pitch. For to be Honest when every body else is Honest, when Honesty is in Fashion, and is Trump, as I may say, is nothing so meritorious; but to stand alone in the Breach, to own Honesty when others dare not do it, cannot be sufficiently applauded, not sufficiently rewarded. And that did this good old Man do; in a Time of general Desertion, he preserved himself pure and untainted.
Temporibusque malis ausus is esse bonus.
My Lords, the House of Commons are therefore Suitors unto your Lordships, to join with them in the Representation of this good Man's Case unto his Majesty, and humbly to beseech his Majesty, to be so good and gracious unto him, as to give him such Honour (the Quality of this Case considered) as may be a noble Mark of Sovereign Grace and Favour, to remain to him and his Posterity; and may be in some Measure, a proportionable Compensation for the great Loss he hath, with so much Patience and Resolution, sustained.
Indict' Thomæ Harrison Cleric. 4. Junii Termine Trinitat' 14 Caroli Regis. Annoq; Dom. 1638. inter Placita Regis isto eodem Term. Coram Dom. Rege apud Westmonast. &c.
Before this Time (that is to say) upon Thursday next after the Holy Trinity, before our Sovereign Lord the King in this Court, by the Oaths of Twelve Men of this County, it is presented, That whereas our Court of Common Pleas hath been an ancient Court of Record for the Administration of Justice between his Majesty's Subjects in Common Pleas, arising throughout the Realm of England: Whereas it is against the Crown and Dignity of his Majesty, and against the Laws and Customs of this Kingdom, for any Person to disturb any Justice of the said Court, the Court of Justice, the Court being open, and the Judges judicially sitting; Whereas Justice Hutton for divers Years is, and hath been one of the Justices of the said Court of Common Pleas: Notwithstanding, Thomas Harrison of Creek in the County of Northhampton, Clerk, not having the Fear of God before his Eyes, but by the instigation of the Devil being moved, maliciously imagining with himself, and compassing in his Mind by what means he may greatly and maliciously scandalize and defame the said Richard Hutton, one of his Majesty's Justices of the said Court of Common Pleas; and maliciously imagining and intending, as much as in him is, to scandalize, and vilifie, and bring into Contempt the said Richard Hutton, of his Life, Goods, Lands and Tenements, and to incite and provoke the Displeasure of our King against the said Richard Hutton, and him the said Richard Hutton to be esteemed a Traitor to the King's Majesty, and to the Peers of this Realm, and withal, the Loyal Subjects of the King; and also for to disturb the said Court of our King, and the Justices of the said Court, being present in the said Court, and there judicially sitting, and to hinder the Administration of Justice, 4. Maii, 14 of his Majesty's Reign, at the City of Westminster in the County of Middlesex, that is to say, in the Great Hall of Pleas there, that is to say, the Court before himself, the Court of Chancery and the Court of King's Bench in the Great Hall of Pleas, being open, and the Justices of the said Courts there being present, and there judicially sitting, and there diligently hearing the Matters and Causes of his Majesty's People of this Realm of England, and in ministring the Laws of this Kingdom to his Subjects; the said Thomas Harrison, then and there, of his own Malice, evil Mind, and evil Intention, in the Presence and Hearing of the Justices of the said Court of Common Pleas, and divers of the Serjeants at Law, and many Honourable, and others of his Majesty's Faithful Subjects, falsly and maliciously, did accuse the said Richard Hutton of High Treason, and then and there maliciously, openly, and with a high Voice, did speak and pronounce those scandalous, venemous, and malicious Words with a loud Voice; I (the said Thomas Harrison meaning) do accuse Mr. Jusstice Hutton, (the said Richard Hutton) one of the Justices of his Majesty, (of the said Common Pleas meaning) of High Treason; to the great Hurt adn Derogation of our Sovereign, his Crown and Dignity, and the great Contempt of the said Court of Common Pleas, and to the Disturbance of the Justice and Laws of the King, and this his Realm, and of the Justices of the King, and the Administration of Justice in the said Court of Common Pleas, to the evil Example of other Offenders, and to the infamy, disgrace, and destruction of Richard Hutton, and against the Peace of His Majesty.
To this the said Thomas Harrision hath pleaded Not Guilty, and hath put himself upon the Country and the King's Attorney of this Court. Likewise you are now to enquire, whether the said Thomas Harrison be Guilty of this Crime, yea or not.
Mr. Serjeant Heath.
May it please your Lordship, and you Gentlemen of the Jury, you do hear, by the Reading of the Record, that here is an Indictment preferred in the Behalf of the King against Thomas Harrison, who is now at the Bar, and it is for a notable and insolent Contempt done in this Hall against Justice Hutton, and the Laws of this Kingdom: The Indictment sets it forth thus; That the Court of Common Pleas is an Ancient Court, and that it is against the Crown and Dignity of the King, and the Courts of Justice, that when the said Courts were sitting, they, nor any of the Ministers of the said Courts, should not be disturbed. It is further said, that Mr. Justice Hutton is, and, for many Years past, hath been one of the Judges of the Court of Common Pleas and the Defendant, who is now at the Bar, Mr. Harrison, a Clerk, being moved with Malice against the Person of Mr. Justice Hutton, and intending to bring Mr. Justice Hutton into the King's High Displeasure, and to hazard the losing of his Life and his Estate, and the forfeiture of his Goods, and to disturb the Peace of the King and the Courts of Justice sitting, did falsely and maliciously, the Fourth of May last, in Westminster Hall, in the City of Westminster (the Courts sitting) this Court, and the Court of Chancery, and the Court of Common Pleas, this Defendant boldly, and audaciously, and maliciously, did rush to the Bar of the Court of the Common Pleas, Mr. Justice Hutton, and Mr. Justice Crawley then and there sitting, they attending to the Service of the said Court; There, with a loud voice, spake to Mr. Justice Hutton, sitting as a Judge; I do accuse Mr. Justice Hutton of High Treason. This Offence being committed in this Manner, and in this Place, and with such as Boldness, is said to be of a high Nature, and to the contempt of the Crown and Dignity of all the Courts of Justice, where the King is wholly interessed: Whether this Offence may be punished, that is the force and intent of this Indictment.
My Lords, To this the Defendant hath pleaded Not Guilty; we that be of the King's Council shall make it apparent, that this Defendent did do this, and in this manner as is set forth.
I desire that this Examination may be read; but let him see whether it be his Hand, yea, or no.
It is my Hand.
The Examination of Thomas Harrison, of Creek, in the County of Northampton, Clerk, being examined before my Lord Chief-Justice Brampston. That it is true, that whereas Mr. Justice Hutton, and Mr. Justice Crawley, sitting in the Court of Common Pleas, he came to the Bar, and there publickly did charge the said Justice Hutton with High Treason; and being demanded, what was the point of High Treason? he charged him:
He charged him with High Treason as aforesaid. Further, he was asked, Why he charged him with the first; and how he doth deny the King's Supremacy?
He answers, That by common Fame, upon Saturday last, in the Exchequer Chamber, he did deliver his Opinion, that the King had no lawful Power to levy the Ship-money. Being asked, Whether he heard the Argument? he answered, He heard it not, but received it from the common Report of others.
Being further asked, Why he charged him with the stirring up the People to Sedition? He answered, That was because, by the report of divers near to the Place where this Examinant dwells, the People go on more and more in their stubbornnes, refusing the Paying of Ship-money, the which is contrary to the Opinion of all the Orthodox Divines of this Kingdom; and in that Mr. Justice Hutton, riding that Circuit, hath given the People such an Encouragement to their disobedience. Being further asked, Whether any other Person did know of this his intent? He answered, That there were Two others with him, but they did not knwo any thing of his intention till they heard it spoken at Bar-Being asked, Why he made choice of this publick way? The Reason, faith he, was, Because that he did deliver his Opinion Publickly, therefore he thought that to be the best way; and if it had been done in a Private Treason, he thought it sit to acquaint it in a Private way.
May it please your Lordship, and you of the Jury, the Prisoner at the Bar, Mr. Harrison, stands indicted of a very soul and horrible Offence, ofa forged and false Accusation, framed and contrived out of his own Brain, it should seem it was out of some rooted and inveterte Malice; a Thing for which there is no colour nor evidence for Truth; and himself consesseth, that it was upon the Ground of Common Fame, he charged this Reverend Judge with High Treason, and that he denied the King's Supremacy; and the reason was, because that he heard of Common Fame, that the Judge had delivered his Opinion, that the King had no Power to levy Ship-money.
2. Because that he stirred up the King's Subjects to Sedition; and he giveth that for a reason, in that the People of Northampton do go on in a stubborn Refusal of the Payment of the Ship-money in regard of the Judges Opinion.
My Lord, This is a Heavy Thing for to accuse any Man of Treason, whereby he shall forseit his Lands and Goods, and lose his life; and surely by the old Law this false Accuser should undergo the same Punishment as he should that was accused, if he had been found Guilty.
My Lords, The Office of a Judge is a Place of great Honour and Trust.
2 K. 2. 1, 5, &c.
Of Honour; For the Judges of the King's Bench and Common Pleas are reckoned inter magnates Regni, and the Devisors and Publishers of false Lies and Tales against them are branded for Authors of debates and discords between the King and his People, and Subvertors of the Realm.
Of Trust; For he is trusted with the Administration of equal Justice between the King and his Subjects, and the Lives, Fortunes, and Estates of Men; Therefore being a Place of so great Honour and Trust, the Scandal is the greater; and Offences and Crimes against them have been punished not with ordinary punishment.
25 Edw. III. 1. pr. It is declared to be Treason to kill a Judge in execution of his Office.
Our Books say, That is one draw a Weapon upon a Judge sitting in Judicature, though he strike him not, he shall be imprisoned during Life, and forseit his Goods and Lands, and lose his Right Hand.
Tho' the Offence be not done to the Judge, yet being in the Judges presence (the Courts sitting) as if one strike a Juror, or any other Person in Westminster Hall, sitting in the Courts, it hath been punished with the loss of Hand, Goods and Lands during Life; this appeareth, 19 E. 3. Judgment, 174. 22 E. 3. 13. Mich. 6 Ed. 3. Coram Rege, Rot 55. Stamford's Pleas of Crown, 38.
The Offence of Mr. Harrison is not for accusing Judge Hutton, or any other of Treason, for God forbid but that should be lawful where there is just cause; But to do it without any colour of Ground, and to forge a false Accusation out of his own Brain, and to act in such an insolent and mad way against a Reverend Judge, sitting in the Seat of Judgment, this is the Offence.
37 Hen. 6. 3. If one call another Traitor, an Appeal lieth before the Constable and Marshall, and if the Appellant be killed in Battel, it is Justifiable.
30 lib. Aß. one called Justice Seaton Traitor; and answered well in Damages, as appeareth more at large in the Record than in the Printed Book.
Mich. 5 Car. in Banco Regis, Nich. Jeoffes was indicted and sined in the King's Bench, for Writing a Petition, wherein he said the Lord Chief-Justice Crook was a Traitor.
Treasons are declared by the Statute 25 E. 3. and this Gentleman may expound a Text, he cannot expound Statutes, for this is proper for the Judges of the Realm.
He is not to judge what is Treason, and what not, Tractent fabrilia fabri, let him keep himself within the Compass of his own profession.
This Offence is Contra coronam & dignitatem, and the Scandals against the King's Judges and Ministers, trench upon the King himself; and therefore his Royal Majesty detesting this Odious and Foul Fact in the Prisoner at the Bar, hath commanded us his Council to give Evidence.
The Person of the Party accused is best known to your Lordships to be a most grave, honest, learned, and reverend Judge, and, I presume, free from any thought of Treason.
Mich. 33. 34. Ed. 1. coram Rege in this Court, Rot. 75. Roger de Hignam, Justice of Oyer and Terminer, gave Judgment for Mary, late the Wife of William Bruce Plaintiff, against William Bruce in the Chequer-Chamber.
This William de Brue was of a Noble Family; he asked this Roger, Whether he would avow the Judgment? and he told him, Yes; Now says de Bruce, Roger, Roger, thou hast thy will, which of long Time thous hast sought. The Judge asked him, What was that? He said, My shame and loss, and this I will think on. For this Offence, in a kind of implicite way, taxing the Judge of Injustice, he was indicted, and confessed the Indictment, as Mr. Harrison: The Record faith, Et quia sicut honor & reverentia qui Ministris Domini Regis ratione officii sui faciuntur, ipsi Regi attribuntur, sic dedecus & contemptus Ministris suis fact. eidem Domino Regi inferuntur, consideratum est quod prædictus Willielmus de Bruce districtus in corpore, capite nudo, tena deposita eat è Banco Domini Regis ubi placita tenentur in Aula Westmonastrii per medium Autæ prædictæ, cum curia plena suerit, usque ad Scac. ubi deliquit & ibidem veniam petat à præsato Rogero, &c. Et postea committitur Turri London. ibidem moratur. ad voluntatem Regis.
My Lords, I doubt not but you will maintain the Honour of a Judge and punish this Delinquent according to his Demerits, his Offence contained in the Indictment, is confessed in his Examination, and by him self ore tenus.
Therefore you of the Jury shall not need to depart from the Bar, but find him Guilty.
The Protestation of the Noblemen, Barons, Gentlemen, Burroughs, Ministers, and Commons, &c. in Answer to the King's Declaration of the Ninth of September.
We Noblemen, Barons, Gentlemen, Burgesses, Ministers, and Commons, his Majesty's True and Loyal Subjects; That where as our continual Supplications, Complaints, Articles, and Informations, presented, first, to the Lords of his Majesty's Privy Council, next to his Sacred Majesty; and last from Time to Time to his Majesty's Commissioners; our long attendance, and great patience this Twelve-Month by-gone, in waiting for satisfaction of our most just Desires; our Zeal to remove all Rubs out of the way, which were either mentioned unto us, or could be conceived by us, as hindrances of our pious intentions, aiming at nothing but the Good of the Kingdom, and Preservation of the Kirk, which by Consumption or Combustion is likely to expire; delighting to use no other means but such as are legal, and have been ordinary in this Kirk since the Reformation, and labouring, according to our Power and Interest, that all Things might be carried in a peaceable manner, worthy of our Profession and Covenant, our Protestation containing a hearty Thanksgiving for what his Majesty, in his Proclamation, from his Justice, had granted of our just Desires, and our Protests and Hopes for so much as was not as yet granted: All these made us confidently to expect, from his Majesty's Royal and compassioned Disposition towards this his Native Kingdom, that a free general Assembly and Parliament should have been indicted, as the ordinary and most proper Remedies of our Grievances, and did constrain us to renew our Petition, earnestly entreating, that his Majesty's Commissioner would be pleased to represent unto his Majesty, the Condition of this Kirk and Kingdom, crying in an extreme Exigence for present help, with the Lawfulness of the Remedies prescribed by his Majesty's Laws, required by us, and presented to him in some particular Articles, which his Grace promised to recommend to his Majesty, and to do his best endeavours for obtaining the same; especially the first Article, that there might be indicted a full and free general Assembly, with out prelimitation either in the Constitution and Members thereof, in the order and manner of proceeding, or in the matters to be treated: And if there should be any Question or Doubt about one of these, or such like particulars, that the Determination thereof might be remitted to the Assembly it self, as the only proper and competent Judge.
And now, after so many Supplications, Complaints, Articles, and Informations; after our necessary Protestation, expressing the humble Thankfulness and continued Desires of our Hearts, after so long Expectation, and so much Dealing, having with open Ears, and attentive Minds, heard his Majesty's Proclamation, it is our Desire, Purpose, and Endeavour so to proceed, that we may upon the one Part still be thankful to God and the King, for the least Blink of his Majesty's Countenance, and the smallest Crums of Comfort that fall unto us from his Majesty's Royal Hands; Beseeching the Lord yet further to enlarge his Majesty's Heart, for our full satisfaction and rejoycing, to the Honour of Good, the Good of this Kirk and Kingdom, and his Majesty's never dying Fame and Glory; that his wise Government and Zeal to the Service of God, may be a Measure and Pattern of Desires to all Generations hereafter, when they shall be wishing for a Religious and Righteous King: And on the other part, that Christ our Lord, the King of Kings, thro' our Neglect or Lukewarmness may want no part of his Sovereignty and Dominion; and that in our Religion, which is more dear unto us than our Lives, we deceive not not our selves with that which cannot satisfy and make up the Breach of this Kirk and Kingdom, or remove our fears, doubts, and suspicions of the Innovations of Religion.
This hath made us to observe and perceive, that his Majesty's Proclamation doth ascribe all the late Distractions of this Kirk and Common wealth, to our conceived Fears of the Innovation of Religion and Law, as the Cause and Occasion thereof, and not to the Innovations themselves, with which we have been for a long Time, and especially of late, heavily pressed and grieved, as if the Cause were rather in Apprehension and Fancy, than in Reality and Substance, That the Service Book and Book of Cannons are not so far discharged by his Proclammation, as they have been urged by preceding Proclamations; for this Proclamation only dischargeth the Practice of them, and rescinds the Acts made for establishing their practice, but doth not rescind the former Proclamations; namely, that of the 19 of February at Sterling, and that of the Fourth of July at Edinburgh, which gives an high Approbation to these Books, as fit Means to maintain Religion, and to beat down all Superstition, and withal, declares his Majesty's Purpose, to bring them into this Kirk in a fair and legal Way: And thus both our Fears that they may be introduced hereafter, must still remain, and the Liberty of the general Assembly, by such a Declaration of his Majesty's Judgment, is not a little prejudged in the Minds of so many as wisely consider, and compare the preceding Proclamations with this which we now hear; although others, who looking upon one Step, and not upon the whole Progress, run on rashly, and neither considering what they are doing, nor with whom they are dealing, may be easily deceived. Qui pauca videt, cito judicat, a short Sight maketh a sudden Judgment.
That it is declared in this Proclamation, that his Majesty neither intendeth to innovate any thing in Religion or Laws, or to admit of any change or alteration in the true Religion already established and prosessed in this Kingdom: And withal, this is interposed, that the Articles of Perth are established by the Acts of Parliament, and general Assembly, and Dispensation of the Practice only granted, and Discharge given, that no Person be urged with the Pratice thereof; and consequently, his Majesty's Intention for the standing of the Acts of the Assembly and Parliament, appointing the Articles of Perth, is manifest, which is no small Prejudice to the Freedom of the general Assembly, That while the Proclamation ordaineth all his Majesty's Subjects to be liable to the Tryal and Censure of the Judicatories competent, and that none of them shall use any unlimitted and unwarranted Power; likewise that no other Oath be administred to Ministers at their Entry, than that which is contained in the Act of Parliament, In both these Articles the Bishops are meaned, who are only thereby for the present curbed, against their exorbitancy and enormities in exercising their Office; but the Office of Bishops is thereby not only pre-supposed as unquestionable, but also so strongly established, that his Majesty declareth for the present, his Intention to admit no Innovation therein: Which is more evident by the Indiction of the Parliament; warning all Prelates to be present, as having Voice and Place in Parliament; and by the Indiction of the Assembly, warning all Archbishops and Bishops (for so are their divers Degrees and Offices Ecclesiastical here designed and supposed) to be present, as having Place and Voice in the Assembly, contrary to the Caveats, Acts of the Kirk, and our Declinator: And thus a third and great Limitation is put upon the general Assembly. The Proclamation, by Reason of these many Limitations and Prejudices of the Liberty of the Assembly in the very Points which have wrought so much Woe and Disturbance in this Kirk and Kingdom, and wherein the Liberty of the Assembly is most useful and necessary at this Time, can neither satisfie our Grievances and Complaints, nor remove our Fears and Doubts, not cannot (without Protestation) be admitted by us his Majesty's Subjects, who earnestly desire that Truth and Peace may be established; and that for the Reasons following:
- 1. To keep Silence in any thing that may serve for the good of the Kirk, whether it be in Preaching, Prayer, or in proposing and voicing in a lawful Assembly of the Kirk, is against the Word of God, Isa. 62. 6. Ye that are the Lord's Remembrancers, keep not Silence, and give him no Rest 'till he establish, and' till he make Jerusalem a Praise in the Earth: 1 Kings 18. 21. like the halting of the People between two Opininons, and their not answering a Word when the Lord called them to give a Testimony: Acts 20. 20. I have kept back nothing that was profitable unto you: And again, 1 Cor. 12. 7 . Mat. 15. 18. Rom. 1. 18. Rev. 2. 14, 20 . and 3. 15 . and therefore to keep Silence, or not to meddle with Corruptions, whether in Doctrine, Sacraments, Worship, or Discipline, in a general Assembly of the Kirk, convened for that End, were the ready way to move the Lord to deny his Spirit unto us, and to provoke him to Wrath against out Proceedings, and might be imputed to us for Prejudice, for Collusion, and for betraying ourselves and the Posterity.
- 2. This Pre-determination is against our Supplications and Protestations, wherein we have shewn ourselves so earnest for a Free General Assembly, contrary to every Limitation of this Kind; so far prejudging the Liberty thereof, is against the Confession of Faith registrated in the Parliament, 1567. declaring that one Cause of the Councils of the Kirk, is for good policy and Order to be observed in the Kirk, and for to change such Things as Men have devised, when they rather softer Supersition than edify the Kirk using the same, and is against our late Confession, wherein we have promised to forbear all Novations, till they be tried; which obligeth us to forbear now, and to try them in an Assembly, and by all lawful Means to labour to recover the former Purity, and Liberty of the Gospel, to which this limitation is directly repugnant, our liberty in a general Assembly, being the Principal of all Lawful Means serving to that end.
- 3. This were directly contrary to the Nature and Ends of a general Assembly, which having Authority from God, being covened according to the Laws of the Kingdom, and receiving Power from the whole collective Body of the Kirk, for the Good of Religion, and Safety of the Kirk, whatsoever may conduce to these good Ends, in Wisdom and Modesty, should be proponed, examined, and determined without prelimitation, either of the Matters to be treated, or of the liberty of the Members thereof, it being manifest, that as far as the Assembly is limitted in the Matters to be treated, and in the Members to be used, the necessary Ends of the Assembly, and the Supreme Law, which is the Safety of the Kirk, are as far hindred and prejudged.
- 4. This limitation is against the Discipline of the Kirk, which, Book. 2. Chap. 7. declareth this to be one of her liberties, that the Assembly hath Power to abrogate and abolish all Statutes and Ordinances concerning Ecclesiastical Matters that are found noysom and unprofitable, and agree not with the Time, or are abused by the People, and against the Acts of the General Assembly, like as the pretended Assembly 1610. declareth, for the common Affairs of the Kirk (without exception or limitation) it is necessary that there by Yearly General Assemblies: And what Order can be hoped for hereafter, if this Assembly, indicted after so long Intermission, and so many gross Corruptions, be limitted, and that more than ever any lawful Assembly of the Kirk was, when it was observed?
- 5. It is ordained in Parliament, 11 Act 40 King James 6. anent the necessary and lawful form of all Parliaments, that nothing shall be done or commanded to be done, which directly or indirectly prejudge the liberty of free voicing or reasoning of the Estates, or any of them in Time coming. It is also appointed in Parl. 6. Act 92. King James 6. that the Lords of Council and Session proceed in all Civil Causes intended or depending before them, or to be intended, to cause or execute their Decrees, notwithstanding any private Writing, Charge, or Command in the contrary, and generally by the Acts of Parliament, appointing every Matter for its own Judicatory, and to all Judicatories their own freedom. And therefore much more doth this liberty belong to the Supreme Judicatory Ecclesiastical in Matters so important as concerneth God's Honour and Worship immediately, the Salvation of the Peoples Sould, and right Constitution of the Kirk, whose Liberties and Privileges are confirmed, Parl. 12. King James. 6. Parl. 1. King Charles, for if it be carefully provided by divers Acts of Parliament, especially Parl. 12. Act. 148. King James 6. That there be no forestalling or regrating of Things pertaining to this Natural Life: What shall be thought of this Spiritual forestalling and regrating, which tendeth to the Famishing or Poysoning of the Souls of the People both now and in the Generations afterward?
- 6. It were contrary to our Protestations, Proceedings, and Complaints against the late Innovations. And it might be accounted an Innovation and Usurpation asgross and dangerous to us, and the Posterity, and as prejudicial to Religion, as any complained upon by us, to admit limitations, and secret or open determinations, which belongeth to no person or Judicatory, but to an Assembly; or to consent to, and approve by our silence the same Pre-determinations, it were to be guilty of that ourselves, which we condemn in others: We may easily judge how the Apostles before the Council of Jersusalem, the Fathers before the Nicene Council, and our Predecessors before the Assembly holden at the Reformation, and afterwards, would have taken such Dealing.
Which said Reasons are expressed before in the latter end of the year 1638. to shorten this Protestation, which, if all had been put together, would have been very tedious.
For these and the like Considerations, in our Name, and in the Name of all who will adhere to the late Covenant, subcsribed by us, and sealed from Heaven, we (from our Duty to God, our native Country, ourselves, and the Posterity, left out silence import a Satisfaction of our Desires, and a Stopping of our Mouths from necessary Supplication for Things yet to be obtained from his Majesty's Just and Gracious disposition) are constrained to declare and protest:
First, That the Cause and Occasion of the Distractions of the Kirk and Commonwealth are no ways to be imputed unto us, or our needless Fears, but to the Innovations and Corruptions of Religion, which against the Acts and Orders of this Kirk, and the Laws of this Kingdom, have been pressed upon us the People of God, and his Majesty's Loyal Subjects, who, although under great thraldom, were living in Peace and Quietness, labouring in all godliness and honesty to do our Duty to God and Man.
Secondly, We protest, that all Questions and Doubts that arise, concerning the Freedom of the Assembles, whether in the Constitution and Members thereof, or in the Matters to be treated, or in the Manner and Order of Proceeding, be remitted to the Determination of the Assembly it self, as the only proper and competent Judge.
And that is shall be lawful for us being Authorized with lawful Commissions, as at other Times, when the urgent Necessity of the Kirk shall require, so in this Exigence to assemble our selves at the Diet appointed, notwithstanding any Impediment or Prorogation to the contrary; And being assembled against all Qualifications and Predeterminations, or Presupposals, to Propone, Treat, Reason, Vote, and Conclude, according to the Word of God, Confession of Faith, and Acts of lawful Assemblies, in all Ecclesiastical Matters, pertaining to the Assembly, and tending to the Advancement of the Kingdom of Christ, and Good of Religion.
Thirdly, And since Archbishops and Bishops have no Warrant for their Office in this Kirk, since it is contrary both to Reason, and to the Acts of the Kirk, that if any have Place or Voice in the Assembly, who are not Authorized with lawful Commissions, and seeing, both in common Equity and Tenour of his Proclamation, they are made liable to the Trial and Censure of the Assembly: We protest that they be not present as having Place or Voice in the Assembly, but as rei to compeer for underlying Tryal and Censure upon the general Complaints already made, and the particular Accusations to be given in against them: And that the Warning given by his Majesty's Proclamation, and this our Protestation, be a sufficient Citation to them to compeer before the Assembly, for their Trial and Censure in Life, Office, and Benesice.
Fourthly, We solemnly protest, that we do constantly adhere to our Oath, and Subscription of the Confession of Faith, and Covenant lately renewed and approved with rare and undeniable Evidences from Heaven of the wonderful workings of his Spirit in the Hearts both of Pastors and People through all the Parts of the Kingdom. And that we stand to all Parts and Clauses thereof, and particularly to the Explanation and Application, containing both our Abjuration of, and our Union against the particular Evils and Corruptions of the Time; a Duty which the Lord, at this Time especially, craveth at our Hands.
5. We also protest, That none of us who have subscribed, and do adhere to our Subcription of the late Covenant, be charged, or urged, either to procure the Subcriptions of others, or to subscribe our selves unto any other Confession or Covenant, containing any Derogation there unto, especially that mentioned in the Proclamation, withour the necessary Explanation and the Application thereof, already sworn by us, for the Reasons above expressed: And because, as we did in our former Protestation appeal from the Lords of his Majesty's Council, so do we now by these renew our solemn Appeal, with all Solemnitis requisite, unto the next free general Assembly and Parliament, as the only Supreme National Judicatories competent to judge of National Causes and Proceedins.
6. We protest, That no Subscription, whether by the Lords of the Council or others of the Confession mentioned in the Proclamation, and enjoined for the Maintenance of Religion, as it is now already, or at this present Time established, and professed within this Kingdom without any Innovation of Religion or Law, be any manner of Way prejudicial to our Covenant, wherein we have sworn to forbear the Practice of Novations already introduced, &c. 'till they be tried in a Free Assembly; and to labour by all lawful Meas to recover the Purity and Liberty of the Gospel, as it was established and professed before the aforesaid Innovation.
And in like manner, that no Subscription aforesaid, be any Derogation to the true and found meaning of our worthy Predecessors, at the time of their Subcription, in the Year 1581. and afterward. Withal, warning and exhorting all Men who lay to Heart the Cause of Religion against the Corruptions of the Time. and the present Estate of Things, both to subscrie the Covenant, as it hath been explained, and necessarily applied; and as they love the Purity and Liberty of the Gospel, to hold back their Hands from all other Covenants, till the Assembly now Indicted be Convened, and determine the present Differences and Divisions, and preserve this Country from contrary Oaths.
7. As his Majesty's Royal Clemency appeareth in forgiging and forgetting what his Majesty conceiveth to be a Disorder, or done amiss in the Proceeding of any; so are we very confident of his Majesty's Approbation, to the Integrity of our Hearts, and Peaceableness of our ways and actions all this Time past; and therefore,
We protest that we will still adhere to our former Complaints, Protestations, lawful Meetings, Proceedings, Mutual Defences, &c. All which, as they have been in themselves lawful, so were they to us pressed with so many Grievances in his Majesty's absence from this Native Kingdom, most necessary, and ought to be regarded as good Offices, and pertinent Duties of Faithful Christians, Loyal Subjects, and Sensible Members of this Kirk and Commonwealth.
As we trust at all Occasions to make manifest to all good Men, especially to his sacred Majesty, for whose long and prosperous Government, that we may live a Peaceable and Quiet Life in all Godliness and Honesty, we earnestly Pray.
Whereupon a Noble Earl, James Earl of Montross, &c. in Name of the Noblemen, Mr. Alexander Gibson Younger, of Dury, in Name of the Barons, George Porterfield Merchant, Burgess of Glascow, in Name of the Burroughs, Mr. Harry Rollock Minister at Edinburgh, in Name of the Ministers, and Mr. Archibald Johnston Reader hereof, in Name of all who adhere to the Confession of Faith and Covenant lately renewed within this Kingdom, took Instruments in the Hands of three Notars present at the said Mercate Cross at Edinburgh, being invironed with great Numbers of the aforesaid Noblemen, Barons, Gentlemen, Burroughs, Minsiters, and Commons, before many hundred Witnesses, and craved the Extract thereof; and in Token of their dutiful Respect to his Majesty's Confidence of the Equity of their Cause, and Innocency of their Carriage, and Hope of his Majesty's gracious Acceptance, they offered, in all Humility, with submiss Reverence, a Copy therof to the Herald.
His Majesty's Pleasure, declared the Eighteenth of August, 1637. concerning Ecclesiastical Courts.
Whereas in some of the libellous Books and Pamphlets lately Published, the most Reverend Fathers in God, the Lord Archbishops and Bishops of the Realm, are said to have usurped upon his Majesty's Prerogative Royal, and to have proceeded in the High Commission, and other Ecclesiastical Courts, contrary to the Laws and Statutes of the Realm, it was ordered by his Majesty's High Court of Star-Chamber, the Twelfth Day of June last, that the Opinion of the two Lord Chief Justices, the Lord Chief Baron, and the rest of the Judges and Barons, should be had and certified in these Particulars, viz. Whether Processes may not issue out of the Ecclesiastical Courts in the Names of the Bishops? Whether a Patent under the Great Seal be necessary for the keeping the Ecclesiastical Courts, and enabling Citations, Suspensions, Excommunications, and other Censures of the Church? and, Whether the Citations ought to be in the King's Name and under his Seal of Arms; and the like for Institutions, and Inductions to Benesices, and Correction of Ecclesiastical Offences? Whether Bishops, Archdeacons, and other Ecclesiastical Persons, may or ought to keep any visitation at any Time, unless they have express Commission or Patent under the Great Seal of England to do it, and that his Majesty's Visitors only, and in his Name and Right alone? Whereupon his Majesty's said Judges having taken the same into their serious Consideration, did unanimously concur and agree in Opinion, and the first Day of July last certified under their Hands as followeth, That Processes may issue out of Ecclesiastical Courts in the Name of the Bishops; and that a Patent under the Great Seal is not necessary for the keeping of the said Ecclesiastical Courts, or for the enabling of Citations, Suspensions, Excommunications, and other Censures of the Church; and that it is not necessary that Summons, Citations, or other Processes Ecclesiastical in the said Courts, or Institutions, or Inductions to Benesices, or Correction of Ecclesiastical Offences by Censure in those Courts, be in the King's Name, or with the Stile of the King, or under the King's Seal, or that their Seals of Office have in them the King's Arms: And that the statute of Primo Edwardi Sexti, cap. secundo, which enacted the contrary, is not now in Force: And that the Bishops, Archdeacons, and other Ecclesiastical Persons, may keep their Visitations as usally they have done, without Commissions under the Great Seal of England so to do.
Which Opinions and Resolutions being declared under the Hands of all his Majesty's said Judges, and so certified into his Court of Star Chamber, were there recorded. And it was by that Court further Ordered the Fourth Day of the said Month of July, that the said Cirtificate should be enrolled in all other his Majesty's Courts at Westminster, and in the High Commission, and other Ecclesiastical Courts, are agreeable to the Laws and Statutes of the Realm.
And his Royal Majesty hath thought fit, with Advice of his Council, that a publick Declaration of these the Opinions and Resolutions of his Reverend and Learned Judges, being agreeable to the Judgments and Resolutions of former Times, should be made known to all his Subjects, as well to vindicate the legal proceedings of his Ecclesiastical Courts and Ministers, from the unjust and scandalous Imputation of Invading or Intrenching on his Royal Prerogative, as to settle the Minds, and stop the Mouths of all unquiet Spirits, that for the future they presume not to censure his Ecclesiastical Courts or Ministers in these their just and warranted proceedings. And hereof his Majesty admonisheth all his Subjects to take warning, as they will answer the contrary at their Perils.
The King's Pleasure declared, to confirm to his Subjects their Defective Titles, Estates and Possessions (as well by colour of former Grants, as without any Grant from the Crown) by his Commission lately renewed and granted to that purpose.
Whereas the King's most excellent Majesty, in his gracious favour towards his loving Subjects, did not only renew his Commission of Grace, but also by his Proclamation given at Whitehall, dated the Sixth day of December, in the fourth Year of his Reign, did Declare, That in his gracious intention towards his said Subjects, he had authorized the Lords, and others of his Privy Council, and others of his Judges, and Council Learned, by his said Commission, to Sell, Grant, and Confirm to such of his Subjects whom it might concern, their Defective Titles, Estates, and Possessions in such Manors and Lands which they did enjoy, not only under colour of some defective, void, or insufficient Grants, or by Letters Patents of Concealments; but also for those Manors and Lands which they did posses meerly by Intrusion and Usurpation, withotu any colour of Right an Title, they never having had any Grants thereof at all, either from his Majesty, or any of his Predecessors; and yet their said Estates and Possessions are not settled by the Act of Parliament made in the One and twentieth Year of the Reign of his Dear and Royal Father King James, of Blessed Memory, lately deceased, intituled, An Act for the General Quiet of the Subjects, against all Pretences of Concealments; conceiving that his said Subjects would have been as forward to have embraced his said intended Grace towards them, for their own Good and Relief, as he was graciosly pleas'd to offer it them. But his Majesty finding the contrary, and the same wholly to be neglected, might now in Justice and Reason reduce to the Crown, all such other Manors and Lands whereto his Highness hath Right and Title, and which were not settled by the said Act to the Increase of his Revenue.
But his Majesty not being willing to construe this in the worst sense, and having nothing more in his Princely Desire, than the general Good of his Subjects, preserring their Peace and Quiet before his own Benefit, hath once more, not only renewed, but also, for the greater Relief of his said subjects, enlarged hsi said Commission of Grace to sundry of his said Lords, and others of his Privy Council, Judges, and Council Learned, giving them the like Authority to compound with such of his loving Subjects whom it may concern, and shall seek Composition at their Hands, for any of the Manors, Lands Tenements, and other the Hereditaments of the several Natures and Qualities contained and expressed in the Schedule, which his Majesty hath caused hereunto to be annexed; whereby each one whom it concerneth, may take knowledge, for what and how he may be relieved by the said Commission, if in Time, and by a due Course, he shall seek the same.
But his Majesty doth further declare his Royal Pleasure by this publick Declaration, to be, that if those whom it may concern, shall not by, or before the Feast of All-Saints next, attend his Majesty's Commissioners, for such moderate and reasonable Compositions as shall be found sit and equal for them, for or concerning any of the said Premisses so by them intruded upon, and unjustly detained from his Majestly, that his Majesty will not, in prejudice of his just Title and Revenue, defer his own Benefit any longer, but either take a legal Course for the reducing of such of the said Manors and Lands, and other the Premisses (of such Person and Persons as shall any longer neglect this his gracious Offer) to the Increase of his Revenue, or otherwise grant the same over unto such others as shall be Suitors to him for the same.
And his Majesty, the better to be informed who embraceth this his Royal Grace, and who neglecteth the same, hath appointed and commanded Robert Tipper of Grays-Inn his Majesty's Servant, to attend his Majesty's Commissioners, as in former Times he hath done, who is to acquaint his Majesty's said Commissioners with the State of the several Cases of those that shall seek a Composition as aforesaid, and who do accept this his Majesty's Grace, and who not, whereupon such further proceeding may be had, according to their said several Neglects, as his Majesty in his Wisdom shall think sittest.
Given at White-Hall the Seven and twentieth Day of May, in the Sixth Year of the Reign of King Charles, of Great Britain, France, and Ireland.
A Proclamation for Adjournment of Part of Trinity Term.
'The King's most Excellent Majesty finding that the Infection of the Plague is at this present scattered and dispersed in the City of London, and Suburbs, and some Parishes adjoining to the same; and weighing the Danger and Inconveniences which may fall out, by the resort of his Subjects from all parts of the Kingdom to his Cities of London and Westminster, for their necessary Causes and Suits the next Term; and being providently careful to prevent all Occasions that may tend to the increasing or dispersing of the Plague, hath thought good (by the advice of his Privy Council0 to publish his Royal Pleasure, to adjourn some part of Trinity Term next; that is to say, in and from the second Return thereof, called Octabis Trinitatis, until Tres Trinitatis, being the last Return of the same. And that to be for such Causes only, and for such Intent and Purpose, as hereafter is expressed.
'And therefore his Majesty doth hereby signify and declare his Will and Pleasure is, That Writs of Adjournment shall be directed to the Justices of either Bench, and to the Judges of all other his Majesty's Courts, to whom like Writs have been usually directed, giving them Power to adjourn the next Trinity Term, in, and from Octabis Trinitatis next, until Tres Trinitatis then next following; and the said Adjournment to be made the first Day of the said Octabis Trinitatis, called the Day of the Essoigns; and his Majesty considering in his Princely Wisdom the Prejudice that may grow to many of his Subjects in their Causes and Suits if that Term should be wholly Adjourned, hath therefore by the Advice of his said Council determined, to have part thereof to be holden and continued for some few Days in the beginning and ending of the same, as is before declared; wherein nevertheless, his Majesty's Intention is, that the same days shall be used only for the better expediting and continuing Causes and Suits, and returning and suing out of Process, and for such other like Things as may be performed and done in the absence of the Parties by their Attornies; and therefore his Majesty doth hereby declare his Will and Pleasure to be, That in the said Term there shall be no Tryals by Juries, or any Judgment upon Demurs, or special Verdicts, or such like in any of his Cours of King's-Bench, Common-Pleas, or Exchequer: And also, that there shall be no Judicial hearing or determining of any Causes or Matters in any of his Courts of Star-Chamber, Chancery, Exchequer Chamber, Court of Wards, Dutchy Chamber, or Court of Requests, during the said Term; And that no Party shall need to be present in Person for any such Causes or Suits, but the same may be attended and done by their Attornies. And his Majesty doth hereby further Notify and Declare, That no Party shall be compelled or need no appear in Person in any of his Majesty's said Courts at any time during the said Term, but may make their Appearance by their Attorines, saving only in Cases of Out-Lawry, and other the Cases mentioned in the Proviso hereafter following: And also that no Juries, or any whom the same may concern, shall be compelled, or need to appear in any of his Highness Courts at Westminister, at any time during the said Term, for any Cause or matter whatsoever, unless it be fore some special and important Cause for his Majesty's Service only: Provided nevertheless, and his Majesty's Pleasure and Commandment is, that all Collectors, Receivers, Sheriffs, and other Accomptants, and all other Persons that should or ought to account, or pay any Sum or Sums of Money in any of his Majesty's Court of Exchequer, Court of Wards and Liveries, or of his Dutchy of Lancaster, or in any one of them, or enter into any Account in any of the said Courts, shall repair to the accustomed Places at Westminster, and there to pay, and do in every behalf, as though no Proclamation or Adjournment had been made.
'And his Majesty's further Pleasure and Commandment is, That all Sheriffs shall return into his Majesty's Court of Exchequer Court of Wards and Liveries, and Dutchy of Lancaster, all manner of Writs and Process issued out of the same Courts and Returnable in Trinity Term next, which in any sort concern his Majesty's Revenues, Debts or Duties, at or before the Days of Returns thereof into such Offices from whence the said Writs and Process did issue: And that all Commissioners like-wise return all manner of Commissions and Inquisitions returnable the said Trinity Term, and from the said Court sent, whereby his Majesty is to receive Profit and Commodity.
'And all Sheriffs, Collectors, and all manner of Accomptants, and every Person that is to pay any kind of Debt or Duty unto the King's Majesty, in any of the said Courts, do either by themselves, their Deputies, or Attornies, pay the same in such sort as they ought to have done, is no such Proclamation or Adjournment had been made, or else to sustain such Damage of Issues, Seisures, Fine, Amerceament, and Penalty to be imposed upon them, as hath been accustomed, without any hope to be discharged thereof. And that all Sheriffs by themselves, or their sufficient Deputies, shall give their Attendance at the Day appointed for their Opposal in the Court of Exchequer, to answer their Returns before his said Barons, as hath been heretofore accustomed; and if any Default shall be made by any of the Persons aforesaid, that then (in Respect of the King's present necessary and extraordinary Charges) Serjeants at Arms and Pursevants shall be sent to bring them up to answer their Contempt and slackness in Payment.
'And his Majesty's further Pleasure is, and he doth expresly Require and Command, That all and every Person and Persons, who by any of his Majesty's former Proclamations have been required to depart from the Cities of London and Westminster, Suburbs and Liberties thereof, and Places adjoining, and to reside in the Country, do conform themselves accordingly, and that they presume not to remain here after the end of this present Easter Term, under pretence of Law-Suits, or otherwise. And because his Majesty hopeth, that by the sending away of those Multitudes of Persons inhabiting in the Country, there may be a better Opportunity for the Magistrates in and near the City of London, to Govern the said City and the Parts adjacent, in such sort as that the Sick and Infected may be severed and kept from the whole; whereby, and by the Blessing of God, the further spreading of the Infection may be staid.
'Therefore his Majesty doth especially Charge and Require, as well the Lord Mayor and Aldermen of the City of London, as the Justices of Peace, and all other Officers and Ministers within Westminster, Middlesex, Surry, and Kent, to take special Care, that as well the Orders lately published by his Majesty's Direction, as such others as shall be found necessary for preventing the spreading of the Infection, be from time to time strictly put in Execution: And also that all other Justices of Peace in all other Counties, Mayors, Bailiffs, and Chief Officers of Cities and Towns Corporate, and other Places within their several Jurisdictions, be careful to do the like, as there shall be Occasion, as they tender his Majesty's Royal Commands, and the Common Safety of his Kingdoms and People in those times of Danger.
Given at our Honour of Hampton-Court, the Seven and Twentieth Day of May in the Twelfth Year of our Reign of England, Scotland France and Ireland.