Historical Collections of Private Passages of State: Volume 4, 1640-42. Originally published by D Browne, London, 1721.
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Ordered, That the Committee of Twenty Four that was formerly appointed for the Remonstrance of the State of the Kingdom, shall Collect the Heads of the great Grievances of the Kingdom, as they shall think fit, and dispose them into the Form of a Petition, and present them to the House; and that the Lords be desired to join in representing the same to his Majesty for Redress.
Resolved, That it is the Opinion of this House, That during the Session of this Parliament, neither the King's Army, nor any of the Train'd-Bands of Yorkshire, shall March or Advance without special Order of his Majesty, with the Advice and Consent of both Houses of Parliament, except in Case the Scotish Army should Pass the Limits appointed by the Treaty; or except it be to resist any actual or sudden Invasion which shall be made by Foreign Enemies; or to oppose such as shall presume to attempt any Thing contrary to this Declaration; and in Case any shall dare to assemble in Warlike Manner, contrary to this Declaration, the Opinion of this Houses, That all Persons so offending, shall be accounted and taken for Enemies to the King and State; saving in Case the Scots do draw their Forces together, then the drawing of the King's Army into one or more Bodies, shall be accounted no Breach of this Declaration.
The House fell into a Debate of Heads for a Conference with the Lords, that the King's Answer be humbly desired to be speedily had to the disbanding of the Irish Army, difarming of Papists, and removing of Recusants from Court; that the Treaty with the Scots be brought to a speedy Issue, and that Care be taken that some Chief Officers of the Army, be sent down to the Army, with all convenient Speed; and that the Lords be desired to join herein.
Resolved, That this House doth approve of the Continuance of a Cessation of Arms between the two Kingdoms for a Month longer, from the Sixteenth of this Instant April, upon the same Terms it was formerly agreed upon, in Case the Treaty shall so long continue.
Ordered, That the Aldermen and Citizens, Members in this House, shall intimate unto the Lord-Mayor, That the Statutes for the due observing of the Lord's Day be put in Execution: And that the like Intimation from this House be made to the Justices of Peace for Middlesex and Westminster.
That the Committee for the Roman Hierarchy, do meet and proceed in the Examination of that Matter; and Sir Robert Pye, Sir H. Anderson Sir George Gerrard, and Mr. Laurence Whitaker are added to that Committee; who are to take the Examination of one Brown, a Priest, in Newgate, who pretends he has something to Discover, and to give no Copies of his Examination till further Order.
This Day the Lords declared, That the Commons may proceed as they have propounded; the Earl of Strafford first recollecting his Evidence; and that being done, the Commons to state their Evidence, and this to be done To-morrow Morning.
Mr. Maynard Reports the Heads of the Conference to be had with the Lords, to shew how their Proceedings, by way of Bill of Attainder, stands in no way of Opposition to those Proceedings that have already been in this Business.
The House reassumed the Debate concerning the Earl of Strafford and Resolved, That it is sufficiently proved, that the Earl of Strafford hath endeavoured to subvert the Antient and Fundamental Laws of the Realms of England and Ireland, and to introduce an Arbitrary and Tyrannical Government against Law.
The House took two or three Days Time to consider of this Business, and ordered the House to be called on Tuesday come Sevennight; and that none of the Members go out of Town, without special Licence from the House.
Resolved upon the Question, That the Endeavour of Thomas Earl of Strafford to subvert the Ancient and Fundamental Laws of the Realms of England and Ireland, and to introduce an Arbitrary and Tyrannical Government, against Law, in both these Kingdoms, is High Treason.
The Doors locked, and the Keys brought up to the Table, Mr.Peard reports the Bill against the Earl of Strafford, with Amendments; and upon the Question for the passing thereof, the House was divided, 59 for the Noes, 204 for the Teas, (the Lord Digby being appointed one of the Teilers for the Noes,) whereupon the Bill was ordered to be immediately ingrossed and sent up to the Lords.
The Lord Digby's Speech in the House of Commons, on the Bill of Attainder of the Earl of Strafford, April. 21. 1641.
We are now upon the Point of giving (as much as in us lies) the final Sentence unto Death or Life, on a Great Minister of State, and Present this Kingdom, Thomas Earl of Strafford; a Name of Hatred in the present /??ge by his Practices, and sit to be made a Terror to future Ages by in Punishment.
I have had the Honour to be employed by the House in this great Business, from the first Hour that it was taken into Consideration. It was a Matter of great Trust, and I will say (with Confidence) that I have served the House in with industry, according to my Ability, but with most exact Faithfulness and service.
I do with the Peace of that unto my self, and the Blessings of Almighty God to me and my Posterity, according as my Judgment on the Life of this Man shall be consonant with my Heart, and the best of my understanding in all Intergrity.
I know well, Mr,Speaker, that by some Things I have said of late, whilst this Bill was in Agitation, I have raised some Prejudices upon me in the Cause. Yea, some (I thank them for their Plain-dealing) have been so free as to tell me, that I suffered much by the Backwardness I have shewn in this Bill of Attainder of the Earl of Strafford, against whom I had been so Keen, so Active.
Mr.Speaker, I beg of you and the rest but a Suspension of Judgment concerning me, till I have opened my Heart unto you freely and clearly in this Business. Truly, Sir, I am still the same in my Opinions and Affections, as unto the Earl of Strafford; I confidently believe him to be the most dangerous Minister, the most insupportable to free Subjects, that can be charactered. I believe his Practices in themselves as high, as tyrannical, as any Subject ever ventured on, and the Malignity of them hugely aggravated by those rare Abilities, of his, whereof God has given him the Use, but the Devil the Application. In a word, I believe him still that grand Apostate to the Commonwealth, who must not expect to be pardoned in this World till he be dispatch'd to the other: And yet, let me tell you, Mr.Speaker, my Hand must not be to that Dispatch: I protest, as my Conscience stands informed, I had rather it were off.
Let me unsold to you the Mystery: Mr. Speaker, I will not dwell much upon justifying unto you my seeming variance at this time from what I was formerly, by putting you in mind of the Difference between Prosecutors and Judges. How misbecoming that Fervour would be in a Judge, which perhaps was commendable in a Prosecutors: Judges we are now, and must put on another Personage. It is honest and noble to be earnest in order to the Discovery of Truth; but when that hath been brought so far as it can to Light, our Judgment thereupon ought to be calm and cautions. In prosecution upon probable Grounds, we are accountable only for our Industry or Remissness; but in Judgment we are deeply responsible to God Almighty for its Rectitude or Obliquity. In Cases of Life, the Judge is God's Steward of the Parties Blood, and must give a strict Account for every Drop.
The Truth on't is, Sir, the same Ground whereupon I (with the rest of the Few, to whom you first committed the Consideration of my Lord Strafford brought down our Opinion, That it was fit he should be accused of Treason upon the same ground I was engaged with earnestness in his Prosecution; and had the same ground remained in that force of Belief with me, which till very lately it did, I should not have been render in his Condemnation. But truly Sir, to deal plainly with you, that Ground of our Accusation, that Spur to our Prosecution, and that which should be the Basis of my Judgment of the Earl of Strafford as unto Treason is, to my Understanding quite vanished away.
This it was, Mr. Speaker: His advising the King to employ the Army in Ireland to reduce England. This I was assured would be proved, before I gave my consent to his Accusation. I was confirmed in the same Belief, during the Prosecution, and fortified in it most of all since Sir Henry Vane's preparatory Examinations, by the Assurances which that worthy Member, Mr. Pym, gave me, that his Testimony would be made convincing, by some Notes of what pass'd at the Juncto, concurrent with it; which I ever understanding to be some other Counsellor, you see now prove but a Copy of the same Secretaries Notes, discover'd and produced in the manner you have heard; and those such disjoined Fragments of the veno mous part of Discourses; no Results, no Conclusions of Counsels, which are the only Things that Secretaries should Register, there being no use of the other, but to accuse and bring Men into danger.
But Sir, this is not that which overthrows the Evidence with me, concerning the Army in Ireland; nor yet that all the rest of the Juncto upon their oath remember nothing of it. But this, Sir, which I shall tell you, is that which works with me, under favour, to an utter Overthrow of his Evidence, as unto that of the Army of Ireland. Before, whilst I was a Prosecutor, and under tye of Secresy, I might not discover any weakness of the Cause, which now, a Judge, I must. Mr. Secretary was examined thrice upon Oath, at the preparatory Committee. The first time he was questioned to all the Interrogatories; and to that part of the Seventh, which concerns the Army in Ireland, he said positively these Words: I cannot charge him with that; but for the rest he desires time to recollect himself, which was granted him.
Some Days after, he was examined a second Time, and then deposes the Words, concerning the King's being absolved from Rules of Government, and so forth, very clearly. But being press'd to that Part, concerning the Irish Army again, can say nothing to that.
Here we thought we had done with him till divers Weeks after, my Lord of Northumberland, and all others of the Juncto, denying to have heard any Thing concerning those Words, of reducing England by the Irish Army, it was thought fit to examine the Secretary once more; and then he deposes the Words to have been said by the Earl of Strafford to his Majesty: You have an Army in Ireland, which you may employ here to reduce (or some Word to that Sense) this Kingdom.
Mr.Speaker, These are the Circumstances, which I confess with my Conscience, thrust quite out of Doors that grand Article of our Charge, concerning his desperate Advice to the King, of employing the Irish Army here.
Let not this, I beseech you, be driven to an Aspersion upon Mr. Secretary as if he should have sworn otherwise than he knew or believed; he is too worthy to do that; only let thus much be inferr'd from it, That he who twice up on Oath with Time of Recollection, could not remember any Thing of such Business, might well a third time misremember somewhat: And in this Business the difference of one Letter, here for there, or that for this, quite alters the Case the latter also being the more probable, since it is confess'd on all Hands, that the Debate then was concerning a War with Scotland; and you may remember, that the Bar he once said to employ there. And thus, Mr.Speaker, I have faithfully given you an Account, what it is that hath blunted the Edge of the Hatchet or Bill with me towards my Lord Strafford.
This was that, whereupon I accused him with a free Heart, prosecuted him with Earnestness, and had it to my Understanding been proved, should have condemned him with Innocence; whereas now, I cannot satisfy my Conscience to do it. I profess, I can have no Notion of any Bodies Intent to subvert the Laws, but treasonably, or by force; and this Design of Force not appearing, all his other wicked Practices cannot amount so high with me.
I can find a more easy and more natural Spring, from whence to derive all his other Crimes, than from an Intent to bring in Tyranny, and to make his own Posterity, as well as us, Slaves; as from Revenge, from Pride, from Avarice, from Passion, and Insolence of Nature.
But had this of the Irish Army been proved, it would have diffused a Complexion of Treason over all; it would have been a With indeed, to bind all those other scattered and letter Branches, as it were into a Faggot of Treason.
I do not say but the rest may represent him a Man as worthy to die, and perhaps worthier than many a Traytor. I do not say, but they may justly direct us to Enact, that they shall be Treason for the future.
I know, Mr. Speaker, there is in Parliament a double Power of Life and Death, by Bill; a Judicial Power, and a Legistative: The Measure of the one, is what's Legally Just; of the other, what is Prudentially and Politickly fit for the Good and Preservation of the whole. But these two, under favour, are not to be confounded in Judgment. We must not piece up want of Legality with Matter of Convenience; nor the Defailance of Prudential Fitness, with a Pretence of Legal Justice.
To condemn my Lord of Strafford Judicially as for Treason, my Conscience is not assured that the Matter will bear it. And to do it by the Legislative Power, my Reason consultively cannot agree to that, since I am perswaded, neither the Lords, nor the King will pass the Bill, and consequently that our passing it will be a Cause of great Divisions and Combustions in the State.
Therefore my humble Advice is, that laying aside this Bill of Attainder, we may think of another, saving only Life, such as may secure the State from my Lord of Strafford, without endangering it as much by Division concerning his Punishment, as he hath endangered it by his Practices.
If this may not be hearkened unto, let me conclude in saying that to you all which I have throughly inculcated to mine own Conscience upon this Occasion. Let every Man lay his Hand upon his own Heart, and sadly consider what we are going to do with a Breath, either Justice or Murther; Justice on the one Side, or Murther heightned and aggravated to its supremest Extent. For as the Casuits say, that he who lies with his Sister commits Incest, but he that marries his Sister sins higher, by applying God's Ordinance to his Crime; so doubtless, he that commits Murther with the Sword of Justice, heightens that Crime to the utmost.
The Danger being so great, and the Case so doubtful, that I see best Lawyers in diametrical Opposition concerning it: Let every Man wipe his Heart, as he does his Eyes, when he would judge of a nice and subtle Object: The Eye, if it he pretincted with any Colour, is vitiated in its discerning. Let us take heed of a Blood-shotten Eye of Judgment.
Let every Man purge his Heart clear of all Passions (I know this Great and Wise Body Politick can have none; but I speak to Individuals, from the Weakness which I find in my self.) Away with Personal Animosities, away with all Flatieries to the People, in being the sharper against him, because he is odious to them; away with all Fears, left by the sparing his Blood they may be incensed; away with all such Considerations, as that it is not fit for a Parliament, that one Accused by it of Treason should escape with Life. Let not former Vehemence of any against him, nor fear from thence, that he cannot be safe while that Man lives be an Ingredient in the Sentence of any one of us.
Of all these Corruptions of Judgment, Mr. Speaker, I do, before God, did charge my self, to the uttermost of my Power. And do with a clear Conscience wash my Hands of this Man's Blood, by this solemn Protestation, That my Vote goes not to the taking of the Earl of Strafford's Life.
- 1. That the Sentence given against Mr. Pryn in the Star Chamber February 17. Anno 9. Car. is Illegal, and given without just Cause, and ought to be reversed; and that Mr. Pryn ought to be discharged of the Fine of 5000l. imposed by the said Sentence, and of all Extents there upon, and of his Imprisonment, Decreed by that Sentence.
- 2. Resolved, That Mr. Pryn ought to be restored to his Degrees in the University of Oxford, and to the Society of Lincoln's-Inn, and to the Exercise of his Profession of an Utter Barrister at Law, and to his Chamber again at Lincoln's-Inn.
- 3. Resolved, That Mr. Pryn ought to have Reparation for such Damages and Prejudice as he hath sustained, by the said Sentence and Proceedings.
- 4. Resolved, &c. That the Sentence given against Mr. Pryn in the Star-Chamber 14 Junii, 1637, Anno 13. Car. is Illegal, and given with out any just Cause, and therefore ought to be revers'd; and that he ought to be discharged of the Finc and Imprisonment thereby Decreed and that he ought to have Reparation and Recompence for the Damage sustained by that Sentence, and the Execution thereof.
- 5. That the Warrant, Dated 27. Aug. 13. Car. for the Transportation of Mr. Pryn, from Carnarvan Castle to the Isle of Jersey, and his Imprisonment there, and other Restraints therein mentioned, are against the Law and Liberty of the Subject; and that he ought to be discharged that Imprisonment, and to have Reparations for the Damages sustained thereby.
- 6. Resolved, &c. That the Imprisonment of Mr. Pryn, by a Warrant Dated 1st. Feb. 1632. under the Hands of Thomas Lord Coventry Lord Keeper of the Great Seal of England, Richard Lord Archbishop of york, Henry Earl of Manchester, Edward Earl of Dorset, Henry Lord Viscount Falkland, William Lord Bishop of London, Edward Lord Newburgh, and Sir Thomas Jermin, is Unjust and Illegal, and that they ought to give Mr. Pryn Satisfaction for the Damages sustained by his Imprisonment.
- 1. That the Attaching, Imprisoning, and Detaining Doctor Leighton in Prison, by Warrant from the High Commissioners, is Illegal.
- 2. Resolved, &c. That the breaking up of Doctor Leighton's House and the taking away his Papers, by Edward Wright, then Sheriff London, and now Lord-Mayor, is Illegal.
- 3. Resolved, &c. That the said Edward Wright, then Sheriff, and now Lord Mayor of London, ought to give Reparations to Doctor Leighton for his Damages sustained by the breaking open his House, and taking away his Papers and other Goods, as aforesaid.
- 4. Resolved, &c, That the Archbishop of Canterbury, then Bishop of London, ought to give Satisfaction to Dr. Leighton, for his Damages sustained by Fifteen Weeks Imprisonment in Newgate, upon the said Bishop's Warrant.
- 5. Resolved, &c. That the Great Fine of 10000l. laid upon Doctor Leighton, by Sentence in the Star-Chamber, is Illegal.
- 6. Resolved, &c. That the Sentence of Corporal Punishment imposed upon Doctor Leighton, the Whipping, Branding, Slitting the Nose, Cutting off his Ears, Setting in the Pillory, and the Execution thereof, and Imprisonment thereupon, are Illegal.
- 7. Resolved, &c. That Doctor Leighton ought to be freed from the Great Fine of 10000l. and from the Sentence of Perpetual Imprisonment, and to have his Bonds delivered to him, which he entred into for his true Imprisonment.
- 8. Resolved, &c. That Doctor Leighton ought to have good Satisfaction and Reparation, for his great Sufferings and Damages, sustained by the Illegal Sentences in the Star-Chamber.
The Lords agree to hear the Commons in Westminster Hall, at Eight of the Clock on Saturday next, touching the Matter of Law, in the Business of the Earl of Strafford, and the Lawyers of the House are required to be there.
Mr. Sollicitor is enjoyned by the House, to maintain the Legal Part of the Bill of Attainder, against Thomas Earl of Strafford, on Saturday next, and Mr. Maynard, and Mr. Glyn are joyned to him as Assistants.
The House being informed, that a Paper of Consequence (being the Minutes of the Council discovered by Sir Henry Vane aforesaid) was taken out of the Chamber where the Secret Committee do usually meet, which did relate to the Earl of Strafford's Business: It was referred to Committee, to examine the Matter, who agreed upon a Protestation, to the made by every one of the Secret Committee; which being reported by Mr. Martin, was as followeth.
"I do solemnly Affirm and Protest, in the Presence of God and this Assembly, That I did not, directly or indirectly, take, carry, or convey away the Paper in Question, supposed to be lost or taken away from the House where Mr. Pym Lodges; nor know who did take carry, or convey away the same. Nor have seen the same since it was lost or taken away. And this Protestation I make sincerely and truly, without any mental Reservation or Equivocation.
Likewise the Exceptions taken by divers at the Lord Digby, for many affages in the before-recited Speech of his, delivered at the passing of she Bill of Attainder of the Earl of Strafford, being now again objected against him, the said Lord Digby, in his Place, explained himself, touching those several Passage, and there was no more done at this time hereupon.
Mr. Edward Hide Reports the Case of the Court of York; whereupon it was Resolved, That the Commission, and Instructions, whereby the President and Council in the North exercised a Jurisdiction, is illegal both in Creation and Execution, and that it is unprofitable to his Majesty, and inconvenient and grievous to his Majesty's Subjects in those Parts.
Mr. Edward Hide his Speech at a Conference of both Houses of Parliament concerning the President and Council of the North, and the Court held at York, April 22, 1641.
I Am commanded by the Knights, Citizens, and Burgesses of the House Commons, to present to your Lordships a great and crying Grievance; which though it be complained of in the present Pressures but by the Northern Pars, yet by the Logick and Consequence of it, it is the Grievance of the whole Kingdom. The Court of the President and Council of the North; or, as it is more usually called, the Court of York; which by the Spirit and Ambition of the Ministers, trusted there, or by the natural Inclination of Courts to enlarge their own Power and Jurisdiction, hath so prodigiously broken down the Banks of the first Channels in which it ran, hath almost overwhelmed that Country under the Sea of Arbitrary Power, and involved the People in a Labyrinth of Distemper, Oppression and Poverty.
Your Lordships will give me leave, not with Presumption to inform you great Understandings, but that you may know what moved the House of commons to their Resolutions to remember your Lordships of the Foundation and erecting this Court, and of the Progress and Growth of it.
Your Lordships well know, that upon the Suppression of all Religious House to such a Value, in the Seven and Twentieth Year of H. 8. from that time the Thirtieth Year of that King's Reign, many (not sewer than Six) Insurrection and Rebellions were made in the Northern Parts, under Pretence of that Quarrel most of them under the Command of some Eminent Person of that Counts the which being quieted before the end of the Thirtieth Year, that great King well knowing his own Mind, and what he meant to do with the great Houses Religion, in the Year following, for prevention of any Inconvenience that might ensue to him upon such Distemper, in the One and Thirtieth Year of his Reign, granted a Commission to the Bishop of Landaff, the first President, and other for the quiet Government of the County of York, Northumberland, Cumberland and Westmorland, the Bishoprick of Durham, the Counties of the Cities of York, Kingston upon Hull, and Newcastle upon Tyne. But, my Lords, this Commission was no other than a Commission of Oyer and Terminer, only it had a Clause the end of it, for the hearing of all Causes Real, and Personal, Quando ambae partes, vel altera pars sic gravata paupertate fuerit, quod commodè jus summ secundum legem Regni nostri aliter persequi non posfit, which Clause, how illegal soever (for that it is illegal and void in Law, little doubt can be made;) yet whether they exercised that part of the Commission at all, or so sparingly exercise it, that poor People found Ease and Benefit by it, I know not; but at that time find no Complaint against it. Till the coming in of King James the Commission continued still the same; and that in the first Year of his Reign to the Lord Sheffield varied no otherwise from the former; save only it had reference to Instructed which should be sent, though whether any were sent or no, is uncertain, for can find none.
In June, in the Seventh Year of the Reign of King James, a new Commission was granted to the same Man (the Lord Sheffield) very differing from that went before; it being left out, That they should enquire, per Sacramentum bonorum & legalium bominum, and to hear and determine Secundum leges Angliae relation being had only to the Instructions; which were the first Instructions we can find were sent thither; though I told your Lordships there were some mentions of some in I Jac. I shall not trouble your Lordships with these Instructions, nor with the other that followed in 14 Jacobi to the same Man, nor in 16Jacobi, when a new Commission was granted to my Lord Sanderland; nor indeed with any, till we come to these present Instructions and Commissions, under which that part of the Kingdom groans and languisheth.
My Lord of Strafford came to that Government in December, 4 Caroli; and since, the Commission hath been three several times renewed; in the Fifth Year in March, in the Eighth in November, and in the Thirteenth Year of his Majesty's Reign; into that Commission of 8 and 13, a new Clause screwed in, for the granting, sequestring and establishing Possessions; according to Instructions, crowded, in a Mass of new, exorbitant and intolerable Power. Though our Complaint be against this Commission it self, and against the whole Body of those Instructions, I shall not mispend your Lordships precious time, in desiring to have the whole read, but shall presume to trouble your Lordships only with Five or Six of these Instructions, that by the vast Irregularity of those, your Lordships may judge how insupportable the whole Burthen is. I shall not trouble your Lordships with the Ninth Instruction, though it be but short, which introduceth that Miseram servitutem ubi jus est vagum & incognitum, by requiring an Obedience to such Ordinances and Determinations, as be or shall be made by the Council Table or High Commission Court: A Grievance, my Lords, howsoever consuetudo & peccantum claritas nobilitaverit banc culpam, of so transcendent a Nature, that your Lordships noble Justice will provide a Remedy for it, with no less care than you would rescue the Life and Blood of the Commonwealth.
Whether his Majesty may Canton out a Part of his Kingdom to be tryed by Commission, though according to the Rules of Law, since the whole Kingdom is under the Laws and Government of the Courts established at Westminster; and by this Reason the Several Parts of the Kingdom may be deprived of that Privilege, will not be now the Question. That his Majesty cannot by Commission erect a new Court of Chancery, or a proceeding according to the Rules of the Star Chamber, is most clear to all who have read Magna Charta; which is allowed no Proceedings, nisi per legale judicium parium & per legem terrae. For our Court of Chancery here by long Usage and Prescription is grown to be, as it were, lex terrae. But, my Lords, the Thirtieth Instruction goes further, and erects such an Empire, such a Dominion as shall be liable to no contrary.
The Courts of Westminster, my Lord, have Superintendencies over all Inferior Courts to regulate their Jurisdictions, it they exceed their Limits. As to hold Plea of greater Value; or the like in his Exercise of Jurisdiction, the Judges are sworn to grant and send Prohibitions; and to stop the granting of these Prohibitions, or to neglect them when they are granted, is the greatest and boldest scorn of the Law and the Law makes. that can be imagined.
The King's Courts at Westminster, having been always of that awful and reverent Esteem, with inferior Judges, that the Instances of such Contempts against them, are very rare and exemplary in the Punishment.
The Bishop of Norwich in Trinity Term, in the Twentieth Year of Edward the Third, in Rot. 289. in the Common Pleas; in Hillary Term 21. in the King's Bench, was attached for disobeying a Prohibition at the Suit of Stracil. Upon full and solemn discussion of the whole Matter, the Court resolved, That the Proceedings of the Bishop were, inobedientiam & diminutionem Domini, & Potestatis Regiae, authoritatis suae rejectionem, & Coronae suae exhaereditationem manifestam, &c. as the Words of the Records are; and therefore adjudged the Temporalties of the Bishop to be seized into the King's Hand, and great, very great Damages to be paid to Plantiffs. And whosoever gave Directions for these stout Instructions, might have remembred, that no longer since than Michaelmas, in the Seventh Year of Elizabeth, Rot. 31. an Attachment was granted against the Archbishop of york, then President of that Council, for forbidding the Goaler of York, to deliver one Lambert his Prisoner, who was sent for by a Habeus Corpus form the King's Bench; and if they would have believed the Resolution of all the Judges in England in Trinity Term, in the Sixth Year of King James they would have known how unfit it had been to enlarge that Jurisdiction, since most of their Proceedings, being of an inferior Nature to what they are now grown, were then declared to be illegal, and inconsistent with the Liberty of the Subject.
And can such a Court as this, my Lords, deserve to live? What a compendious Abridgment hath York gotten of all the Courts in Westminster-Hall ? Whatsoever falls within the Cognizance or Jurisdiction of either Courts here, is compleatly, determinable within that one Court at York, besides the Power it hath with the Ecclesiastical and High-Commission Courts.
What have the good Northern People done, that they only must be disfranchised of all their Privileges by Magna Charta, and the Petition of Right? For to what purpose serve these Statutes, if they may be fined and imprisoned without Law, according to the discretion of the Commissioners? What have they done that they, and they alone of all the People of this happy Island, must be disinherited of their Birth-right, of their Inheritance? For Prohibition, Writs of Habeas Corpus, Writs of Error, are the Birth-right, the Inheritance of the Subjects.
And 'tis here worth your Lordships Observation, that to those many Prohibitions which have been granted from above (for till of late the Court of York had not the Courage to oppose Prohibitions; nor indeed till our Courts here had not the Courage to grant them) 'twas never known that Court pleaded the Jurisdiction of their Council; which without doubt they would have done upon the Advantage of many great Persons, in whose Protection they have always been, had they not known the Law could not be misinterpreted enough to allow it.
Your Lordships remember the Directions I mentioned of Magna Charta, That all Proceedings shall be per legale judicium parium, & per legem terrae; now these Jurisdictions tell you, you shall proceed according to your Discretion, that it you shall do what you please; only that we may not suspect this Discretion will be gentler and kinder to us than the Law, special Provision is made, no Fine, no Punishment shall be less than by the Law is appointed by no means, but as much greater as your Discretion shall think fit: And indeed in this Improvement we find Arbittary Courts are very pregnant. If the Law sets me upon the Pillory, this Discretion appoints me to leave my Ears there.
But this Proceeding according to Discretion is no new Expression, 'twas in the First Commission I told your Lordships of in the 31 of H. 8. that they should proceed secundum legem & consuetudinem Regni Angliae, vel aliter secundum sanas discretiones vestras; which in the Interpretation of the Law (and that is the best Interpretation) signifies the same Thing. To proceed according to Discretion, is to proceed according to Law, which is summa discretio; but not according to their private Conceit or Affection; for talis discretio (faith the Law) discretionem confundit; and such a Confusion hath this Discretion in these Instructions produced, as if Discretion were only removed from Rage and Fury. No Inconvenience, no Mischief, no Disgrace, that the Malice, or Insolence, or Curiosity of these Commissioners had a mind to bring upon that People, but through the Latitude and Power of this Discretion hath been the Quicksand which hath swallowed up their Property, their Liberty. I beseech your Lordships rescue them from this Discretion.
Besides, The Charge that this Court is to His Majesty, which is near 1300l. per Annum, your Lordships will easily guess, what an unsupportable burthen, the many Officers (whose Places are of great Value) that Attorneys. Clerks, and Registers, and above 1000 Sollicitors, that attend the Courts, must be to that People (insomuch) that in truth, the Country seems to be divided these Officers and Dependants upon that Court; and the People upon whom these Officers of that Court prey and commit Rapines, as he said in Petronius Omnes hic aut captantur, aut captant; aut cadavera que lacerentur, aut crow qui lacerent. Truly, my Lords, these vexed, worn People of the North, are not Suitors to your Lordships, to regulate this Court, or to reform the Judges of it, but for extirpating these Judges, and the utter abolishing this Court; They are of Cato's Mind, who would not submit to Casar for his Life, saying, He would not be beholden to a Tyrant for Injustice, for it was Injustice in him to save a Man's Life, over whom he had no Power.
First, Upon the whole Matter, the House of Commons is of Opinion, that the Commission and Instructions, whereby the President and Council of the North exercise a Jurisdiction, is Illegal, both in the Creation and Execution.
Secondly, That it is unprofitable to His Majesty; for, besides so much, near Thirteen Hundred Pounds, taken out of His Majesty's Revenues every Year; His Majesty loseth the great Benefit would accrue to him, upon Writs and upon Fines, upon Outlawries and other Profits, which redound to His Majesty out of his Courts here.
And which I had almost forgot to tell your Lordships of, That His Majesty may be sure to have Benefit from that Court, notable care is taken, by the Fifty three Instructions, that if any Money remains over and above all Disbursements, it shall be bestowed in providing Houshold Stuff and Furniture for the House where the Lord President and Council use to be.
And therefore, they are humble Suitors to your Lordships, and the House of Commons on this Behalf, that since this People do, and have, in all Matters of Duty and Affection, contended with the best of his Majesty's Subjects, that they may not be distinguished from them, in the manner of His Majesty's Justice and Protection, since this Court originally instituted and continued by His Majesty, for the Ease and Benefit of his Subjects, is apparently inverted to the Burthen and Discomfort of them, that your Lordships will joyn with the House of Commons, in beseeching His Majesty, that the present Commission may be revoked, and no more such granted for the future.
To the most Honourable Assembly of the Lords and Commons in this present Parliament.
The Humble Petition of divers Citizens of London,
That notwithstanding His Majesty's Gracious Answer to the Humble Petition of his Loyal Subjects, in Summoning this Parliament, with the great Care and endeavoured Pains taken by both Houses, for the removing the heavy Grievances in Church and Commonwealth, whereof the Petitioners have already received some Fruit, for which they desire to return their most humble and utmost Thanks: Yet nevertheless they are enforced, with all Humility, to represent to this most Honourable Assembly, some of those Obstructions which do still hinder that Freedom and Fullness of Trade in this City they have formerly had, and without which, considering the numerous Multitudes thereupon depending, they conceive this City cannot comfortably subsist.
As the unsettled Condition of the Kingdom, ever since the Troubles in Scotland, hath caused both Strangers, and also some of our own, who did furnish great Sums of Money to Use, to call it in, and remit much of it by Exchange into Foreign Parts, and stand now in Expectation of what the Issue of Things may be.
The stopping Money in the Mint, which till then was accounted the safest Place, and surest Staple in these Parts of the World, still doth hinder the Importation of Bullion; the Scots now disabled to pay such Debts as they owe to the Petitioners and others in the City; and by reason of the Oppressions exercised in Ireland, their Debts also are detained there.
Besides all which, from what strong and secret Opposition, the Petitioners know not, they have not received what so much Time and Pains might give them Cause to hope, but still Incendiaries of the Kingdom, and other notorious Offenders, remain unpunished. The Affairs of the Church notwithstanding many Petitions concerning it, and long Debate about it, remain unsettled: The Papists still armed, the Laws against them not executed; some of the most Active of them still at Court; Priests and Jesuits not yet banished; the Irish Popish Army not yet disbanded Courts of Justice not yet reformed; and the Earl of Strafford, who, as now appears, hath counselled the plundering of this City, and putting it to Fine and Ransom, and said, it would never be well till some of the Aldermen were hang'd up, because they would not yield to illegal Levies of Moneys, had so drawn out and spent this Time in his Business, to the very great charge of the whole Kingdom, and his endeavour to obtain yet more; all which makes us fear there may be Practices now in Hand to hinder the Birth of your great Endeavours; and that we lie under some more dangerous Plot than we can discover.
All which Premisses, with the Fears and Distractions growing there from, and from Things of the like Nature, the Petitioners humbly offer to the most grave Consideration of this most Honourable Assembly, as being the true Causes of Decay of Trade, Discouragement of Tradesmen, and of the great Scarcity of Moneys, with the Consequences they labour under.
And do humbly pray, That their said Grievances may be redressed, the Causes of their Fears removed, Justice executed upon the said Earl, and other Incendiaries and Offenders; the rather, in regard till then the Petitioners humbly conceive, neither Religion, nor their Lives, Liberties or Estates can be secured.
After the same was read and considered, the Lord Russel was sent by the Commons to go up to the Lords with this Message, to desire a Conference by a Committee of both Houses, concerning a Petition from divers Citizens of London, directed to both Houses of Parliament.
Mr.Glyn is ordered to manage this Conference, and Mr.Hill to assist him; and to deliver the Petition from the Citizens of London at this Conference, and thence to take occasion of representing the Desires of this House; likewise for the expediting of the Bill of Attainder of the Earl of Strafford.
The Serjeant informs the House, That Sir Basil Brook (whom he was ordered to take into Custody) cannot be found; whereupon it was ordered, That the Lords be moved to join with this House, in a Request to the King, that a Proclamation may issue forth against him.
Sir Thomas Roe, nominated by his Majesty to go Ambassador to the Imperial Diet of Germany, desires the Favour of the House, That he may still (notwithstanding that Employ) be continued a Member of that House; which was granted accordingly.
A Message from the Lords by Judge Reeves and Judge Heath, That they are ready for a Conference, by a Committee of both Houses, touching the Petition presented from London, for which this House sent a Message on Saturday last.——Answer returned by the same Messengers, That this House has taken their Lordships Message into Consideration, and will give a Meeting presently as is desired.
Resolved, That one part of the Conference with the Lords, concerning the London Petition, shall be to move their Lordships, That they will take some short time for desiring Audience of his Majesty, concerning the disbanding of the Irish Army, and removing Papists from Court.
The House of Commons re-assuming the Consideration of their former Votes, concerning the Convocation, and the Canons made by them, which the House had declared to be against the Right of Parliament, and Property of the Subject, ordered a Bill to be brought in, for punishing and fining of the Members of the late Convocation of the Province of Canterbury; which was this Day read the second time, and committed. When the Committee met upon the same, they passed several Votes as to Fines to be imposed upon them; whereupon these Sums of Money following, were inserted into the Draught of the Bill for that Purpose prepared; but the Paper out of which this was taken, hath some Blanks (but not considerable) which cannot be supplied at present: That,
|Archbishop of York, &c.||—|
|Archdeacon of York,||—|
|Dean of Durham,||1000|
In the Draught of the Bill, of which this is a short Abstract, it was further specified, That the several Fines shall be paid to the Earls therein named, or any four or more of them, to the Use hereafter named.
Mr. Treasurer informs the House, That the King expects both Houses To-morrow at Two of the Clock, to attend him at the Banquetting-House at White-Hall, to receive his Answer about disbanding of the Irish Army, disarming of Recusants, and removing them from Court.
A Report was this Day made from the Committee, for a Fast, of the Motives thereunto, viz. That notwithstanding our former Humiliations, many Dangers and Fears yet remained, small Progress in Affairs either in Church or State; after many laborious Endeavours, the multitudes of Evils both in Church and Commonwealth generally complained of, which require a great and general Humiliation, for the averting God's Judgments justly due to us, and particularly threatned in a contagious Sickness now begun amongst us; the obtaining of good Success in the Reformation of the Church now generally desired and expected; an happy and settled Peace between the two Kingdoms; God's Blessing and Direction of his Majesty, and the whole Parliament, and great Affairs of the Church and Commonwealth.
Mr. Hide went up to the Lords with a Message, That the House hath received Information, which hath moved some fear in them, That the Earl of Strafford may have a Design to make an Escape: That he hath Ships at Saa at Command; and that the Guard about him is weak, and therefore desire their Lordships, That he may be close Prisoner, and his Guards strengthned; to which the Lords consent.
Both Houses this Afternoon waiting on his Majesty (according to his Appointment) at White-Hall; he was pleased to return his Royal Answer to their Desires before intimated unto him, in the Words following:
My Lords and Gentlemen
For Answer to your Desires, I say,
First, Concerning the removal of Papists from Court, I am sure you all know what legal Trust the Crown hath in this particular; and therefore I need no say any thing to give you Assurance, That I shall use it so, that there shall be no just Cause of Scandal.
Thirdly, For the Irish Army, you must understand I am already upon Consultation how to disband it; but I find many Difficulties in it: Therefore I hold it not only fit to wish it, but to shew the way how it may be conveniently done.
This is not all I desire; but since you have mentioned the disbanding of Armies it is my Duty to my Country to wish for disbanding of all Armies, and to restore the same Peace to all my Three Kingdoms, that the King my Father did leave them in: And I conjure you, as you will Answer the same to God and to the Country, to join with me heartily and speedily, for the disbanding of the two Armies in England: To which end, there are two thing; requisite; Money, any the Conclusion of the Scots Treaty. You are Masters of the one, and with me you are Judges of the other; this being a fit Time to put you in Mind of it, because you have now all the Treaty before you. I assure you none of you shall shew more Industry and Willingness for the setting all Things in a peaceable Way than my Self.
That Mr. Sollicitor be required from this House, to bring in a perfect Copy of his Argument Yesterday in Westminster-Hall, about the Earl of Strafford; and likewise, That Mr. Pym, bring in a Copy of his Speech there spoken.
Instructions for the Preservation of Timber Trees were read; and, Ordered, That Mr. Treasurer shall present the same to his Majesty; with a Desire from this House, That Commissions may Issue forth according to these Instructions.