Historical Collections of Private Passages of State: Volume 4, 1640-42. Originally published by D Browne, London, 1721.
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The Lords and Commons had a Conference about two Bills remaining in the Lords House: The one for taking away the Court of High Commission; and the other, to take away the Court of Star-Chamber, and to regulate the Council-Table.
The Lords upon the Reasons offered by the Commons, were satisfied to consent to pass the Bill to take away the High-Commission Court, both here and at York; but argued to have the Star-Chamber Court not quite taken away, but bounded, limitted, and reduced to what Power it had in Henry VII's Time.
The Commons entred upon the Debate concerning the Judges, as to the Way of Trying them; some were for having them tried upon Impeachment before the Lords; others would have them proceeded against by Bill, and the House ordered a Bill to be drawn accordingly; but it was declared in the House, That what Way soever they were proceeded against, the Commons might be present at the passing of Sentence against them.
A Conference being this Day held by a Committee of both Houses in the Painted-Chamber, touching the Poll Bill, and whether the Commons had a Right to set the Proportions or Rates therein upon the Peers, Sir Simon d'Ewes spoke as followeth upon that Subject.
Sir Simon d'Ewes his Speech concerning the Assessing of the Peers in the Poll Bill.
I shall humbly crave Liberty to shew you, That the House of Commons hath done no more in rating and proportioning of these particular Sums upon your Lordships, than by the ancient Rights and Privileges of Parliament they might; and to speak the Truth, they could in Possibility do no less.
It hath been several Times spoken in this Place, no less Justly than Nobly, by some of your Lordships, That all Matters of Supply should originally proceed from the House of Commons; for so hath been the Practice of formes Times in the Ages past.
In the Parliament Roll, de Anno 9. H. 4. Numero 21. when the Peers began but in a small Circumstance to intrench upon this Privilege of the Commons, there arose a long and an earnest Debate upon it; the Issue of which, produced a full Declaration, agreed upon by both Houses, That matter of Supply must first proceed from the Grant of the Commons, and then be assented unto by the Lords, so as if we had sent up the present Bill, either with Blanks for your Lordships to have filled them up, or have left you out wholly, to have inserted your own Degrees and Proportions; (one of which we must have done, if we had not proceeded as we did) it must of necessity have follow'd, That your Lordships, contrary to the undoubted Privilege of the same House, had orinally granted Aid and Subsidy, and the Commons had but assented.
Before that time, though not upon so great an occasion, it was declared in Parliament,as appears in Rotulo Parliament de Anno 5. R. 2. n. 16. that the House of Commons are first to treat of Matter of Supply, to resolve upon it, and then to communicate their Resolutions to the Peers. Now, my Lords, our Resolutions are most properly couched in a Bill, so as we did transmit the present grant of Aid and Supply to your Lordships; in the ancient and due form.
But perhaps your Lordships will say, you question not that general Right we have of granting Subsidies, that it is to receive its Birth and Being from the House of Commons; but that in this particular case of Poll-Money, you expect a particular Satisfaction, and much more to see it proved, That the Peerage of England were ever before rated in such a Bill.
For the first, my Lords, this way is an ancient and a known way; it began in the time of the Wife and Victorious Prince, King Edward III. as appears upon Record in Rotulo Parliament, de Anno 51. Ed. 3. numero 19. And I assure my self, near upon three hundred Years continuance, is able to challenge both Allowance and Imitation from this present Age. During the Reign of R. 2. his Grandchild, this course of raising Money by the Poll, was again put in practice as an advantageous and a speedy way, your Lordships shall find one Example of it in the Parliament Roll, de Anno 4. Rich. 2. n. 15. being almost the same with that Rate and Proportion granted in the time of Edward III.
But that Record which comes home to this Case, and is an identical Precedent in the very particular before your Lordships, to give you full Satisfaction, is found in Rotulo Parliamenti in Parliamento 2. (the Miseries at Home, and the Calamities Abroad, causing in one Year sometimes two, sometimes three Parliaments in those elder Times) de An. 2. Rich. 2. n. 14. where the Dukes, Earls, and Barons are all particularly rated; and the Duke of Bretagm is there assessed as a Duke, though he were a free Prince, and had only the Title of Earl of Richmond in England. Nay, my Lords, the House of Commons at this time hath come far short of the same Precedent, in favour of the noble Ladies; for whereas the Countesses-Dowagers were there rated at the same Proportions with Earls, and the Windows of Barons, at as high a rate as the Barons themselves, we have now eased them of two parts of that, and only charged them with the third.
I hope now your Lordships have seen both Reason and Precedent for our Proceedings at this time; you will be pleased to believe, That the House of Commons will be as careful and tender of your Lordships Rights and Privileges, as of their own.
We know, my Lords, that this is the way to preserve Peace and Unity between us; which as it is always expedient, so it is at this time most necessary; for the two Houses are as the two Arms of the Kingdom; if we hold fast together, we shall be able to do great things, worthy to be transmitted to after-Ages; but if we dissever and disunite, we may end in Ruine and Calamity.
An Ancient Record read in Parliament, touching Sessing the Peers by the Commons, July 2.
Rot. Parliam in Parliamento 2. de Ann. 2 Rich. 2. N. 14.
Le Duc de Lancastre, & le Duc de Bretaigne, chescun a X Marks Chescun Conte D' Engleterre iiij l. Chescun Countesse Veoves en Engle. terre atant come les Countes iiij l. Chescun Baron & Baneret ou Chevalier qui puet atant dispendre xls. Chescun Baronesse Veove Paiera come Baron, & Banresse come le Baneret xl s. Chescun Bachiler & chescun Esquier quiper le Statute deveroit estre Chevalier xxs. Chescun veove Dame feme de Bachiler ou Esquier al afferent xxs. Chescun Esquier de meindre Estate vis. viij d. Chescun feme veove de tiel Esquier, on Merchant suffisant vis. viij d. Chescun Esquier nient Possession de Terres ne Chetaux quest en service ou ad este Armes iij s. iiij d.
The King being moved by both Houses to give his Royal Assent to the Poll-Bill, and the other forementioned Bills concerning the Star-Chamber, High-Commission Court, and Council-Table, his Majesty came this Day to the House of Lords, and the Commons came up with the Poll-Bills, the other two Bills lying ready in the House of Peers to pass also. The Speaker at the same time presented the Poll-Bill to his Majesty, and made this ensuing Speech.
Mr. Speaker's Speech at the passing of the Poll-Bill, July 3.
The Government of this Commonwealth rests in the Rules of Order, and hath so much Affinity and Consent with the Rules of Nature in the Government of the World, that the first Copy and Imitation of the one may seem to be taken from the Original and first Model of the other.
This Contemplation (most Excellent and Gracious Sovereign) casts our Eyes upon your sacred Majesty, as that Celestial Orb, which never resting without the Office of perpetual Motion to cherish the lower Bodies, not enriching it self with any Treasures drawn from below, exhales in Vapours from the inferiour Elements, what in due Season it returns in Showers.
The Application makes us consider our selves those Sublunary Creatures, which having their Essence and Being from the Influence of those Beams (as the Flowers of the Field) open to receive the Glory of the Sun.
In this Relation both contribute to the common Good: Your Sacred Majesty, as a nursing Father, designed to bestow on your People, the Blessings of Peace and Unity; and we, as the Children of Obedience, return our Duties and Affections in Aids and Tributes, and this Kingdom compacted in one Body, by the Ligaments of Religion and Laws, hath been the Object of Admiration to the whole World.
But your crafty Adversaries, perceiving that the stedfast Profession of our own Religion, and the firm Observation of our Laws, have been the Pillars of our Prosperity, by subtle Insinuation, pretending a politick Necessity to admit of a Moderation in our Religion to comply with Foreign Princes, and suggesting it a Principle in the Rules of Sovereignty, to require and take, not ask and have, that it must postulare by Power, not Petere by Laws, have brought these Miseries of War and Calamity between Nation and Nation, and put us in the Posture of Gaze to the whole World.
But when we behold your Sacred Majesty, descended from the Royal Loins of that Glorious King, which by his Wisdom and Policy, first ingrafted the White Rose and the Red upon the same Stock, and sheathed the Sword that pierced the Bowels of so many of the Nobility, and was glutted with the Blood of the People; and then laid the first Hopes of the happy Union between the Nations.
When our Thoughts refresh themselves with the happy Memory of that Religious King, your Gracious Father, on whose Sacred Temples both Diadems were placed, wreathed about with this Motto, Faciam eos in gentem Unam: We cannot but believe that God and Nature (by a Lineal Succession from those Fathers of Peace) hath ordained you that Lapis Angularis, upon which the whole Frame settles, and hath put into the Hands of your Sacred Majesty the Possibility and Power to firm and stablish this happy Union between your Kingdoms, and so to raise to your Memory a Statue of Glory and Wisdom, from Generation to Generation.
In all this length of Time, the Assurance of this Union and Peace hath been the chief Object of our Desires; and our Purses have been as open as our Hearts; both contributing to this great Work, manifested by so many Subsidies already presented, sufficient in our first Hopes for the full Perfection.
But finding that fail, we have again adventured upon your Peoples Property, and in an old and absolete way, new burnisht by the Hand of instant Necessity, expressed to the World, the Hearts of a Loyal People; and howsoever gilded with a new Name of Tranquility and Peace to your Kingdoms, that with more Ease the People may digest the Bitterness of this Pill, yet our Hearts had the same Aim and Object.
And by which, if your Sacred Majesty vouchsafe your Royal Assent, which we humbly pray, we shall not doubt you may soon accomplish those happy Effects, that may present your Wisdom the Object of Wonder, and your Poicy to be admired amongst the Nations.
The House of Commons, after their return to the House, were much dissatisfied that his Majesty did not pass the said Two Bills to take away he Star-Chamber, and High-Commission Courts; and upon the Fifth of July entred into Debate of the same, but were interrupted therein by the Usher of the Black-Rod, who came and told the House, that the King expected them, being come to give his Royal Assent to the said Two Bills. At which Time his Majesty made this following Speech.
His Majesty's Speech at the passing the Two said Bills, July 5.
I am come to do the Office which I did defer on Saturday last, to give Determination to these two Bills; but before I do it, I must tell you, that I cannot but be very sensible of those Reports of Discontent, that I hear some have taken for my not giving my Consent on Saturday. Methinks it seems Strange that any one should think I could pass two Bills of that Importance as these were, without taking some fit Time to consider of them; for it is noess than to alter, in a great Measure, those Fundamental Laws, Ecclesiastical and Civil, which many of my Predecessors have estabilished, &c.
If you consider what I have done this Parliament, Discontent will not sit in your Hearts; for I hope you remember that I have granted, That the Judges thereafter shall hold their Places Quam Diu bene gesserint. I have bounded the Forests, not according to my Right, but according to late Customs.
I have established, by Act of Parliament, the Property of the Subject in Tonnage and Poundage, which never was done in any of my Predecessors Times; I have granted a Law for a Triennial Parliament, and given way to an Act for the securing of Monies advanced for the disbanding of the Armies: I have given free Course of Justice against Delinquents: I have put the Laws in Execution against Papists.
Nay, I have given way to every thing that you have asked of me; and therefore, methinks, you should not wonder if in some Things I begin to refuse; but I hope it shall not hinder your Progress in your great Affairs, and I will not stick upon trivial Matters to give you Content. I hope you are sensible of these beneficial Favours bestowed on you at this Time.
To conclude, You know by your Consent there is a prefixed Time set for my going into Scotland, and there is an absolute Necessity for it. I do not know but that Things may so fall out that it may be shortned; therefore I hope you will hasten the dispatching of those great Businesses that now are necessary to be done, and leave trivial and superficial Matters to another Meeting.
For my Part, I shall omit nothing that may give you just Contentment, and study nothing more than your Happiness; and therefore I hope you shall see a very good Testimony of it, by passing these two Bills.
LE ROYLE VEULT.
I have one Word more to speak unto you, and take now an Occasion to present that unto both Houses, whereby, I hope, all the World shall see, that there is a good Understanding between Me and my People.
It is concerning my Nephew, the Prince Elector Palatine; who having desired me and the King of Denmark to give Consent to a Writing concerning the Dyet at Ratisbone, with the Emperor, I could not but send my Ambassador to assist him; though I am afraid I shall not have so good an Answer as I expect: which my Nephew foreseeing, hath desired me, for the better countenancing of the same, to make a Manisest in my Name; which is a thing of great Consequence: And if I should do it alone, without the Advice of my Parliament, it would rather be a Scorn than otherwise. Therefore I do propose it unto you, that if you will advise me to it, I do think it were sit to be published in my Name.
His Majesty's Manifest.
To the end that the Endeavours of our late dear Father, King James, of blessed Memory, and our own Proceedings since his Death, in the Cause of our dear and only Sister, Brother-in-Law, and Nephews, Electors, and Princes palatine of the Rhine may not be forgotten, or pretendedly unknown, wherein we have studied and laboured nothing more than the Peace of Christendom, and the avoiding the Effusion of Innocent Blood, by seeking the Restitution and Re-establishment of the Electoral House Palatine, in their ancient Rights, Dignities, and Possessions within the Empire, out of which they have been by Violence and Force of Arms, and other undue Proceedings, expelled and banished, contrary to the ancient Laws and Constitutions of the sacred Empire: We have thought fit, for the Vindication of our own Honour, to call to mind, and to publish to all the World, both a summary Relation of our Actions and Endeavours past, and our present Resolution in the same Cause.
It cannot be unknown to all the Princes and Estates of Europe, and more particularly to those who have had any Interest or Relation to the Publick Affairs of Germany, how both our Self, and our Father, have, during these 20 years past, by many and several Ambassages, Treaties, and other Negotiations, to our great Expence and Charges, both with the late Emperor Ferdinand, the King of Spain, and other Princes and Estates of the Empire, endeavoured by all friendly and treatable ble Means, to procure the Restitution and Re-establishment of our said dear Sister, Brother-in-Law, and Nephews, in their ancient Rights and Possessions, as the only and possible way to settle a good and firm Peace in the Empire, and consequently with all Princes interested therein; without which it is impossible to expect or hope for a good, durable, and honest Pacification of those Troubles which have already, almost rent, consumed, and involved all the Princes of Christendom in a most bloody and destructive War.
And for a clear Demonstration of our sincere Intentions, not only our own pious Inclination, and Care of the publick Peace, hath induced us to omit divers Occasions, whereby we might by such Power as God hath put into our Hands, have prevented the Violences and Oppressions used to our said Sister and Nephews; but we have been led on and invited thereunto by divers Promises, Assurances, and several Letters, both from the late Emperor and King of Spain, and other Usurpers of the Inheritances of the Electoral House Palatine, that they would at last, in Contemplation of our Mediation, hearken and incline to a just and honest Peace, by the Restitution of the Estates and Dignities of our dear Sister and Nephews, whereby we have been drawn, not only to pass by our own, and the publick Interest, and to forbear to engage our Arms in so just a Cause, but also have procured by our Father's, and our Authority, the withdrawing and disbanding of the Forces of Count Mansfelt out of the Palatinate, and advanced divers Truces and Cessations of Hoshlity or Defence, only to prepare the way of amicable Composition, according to the Hopes and Promises to that End given us, and particularly have caused the Surrender and Deposition of some Places of Strength into the Hands of the late Infanta of Spain, upon reciprocal Assurances of a final Pacification or Restitution.
But what Effects all these our Peaceable and Christian Endeavours have produced, and how all our pious Negotiations have been either delayed or deluded thereby; and by process of Time to root and establish the Usurpations of the House Palatine, and our Patience and Piety thereby abused, is so manifest by the continued Oppression of our said dear Sister and Nephews, that we are forced to protest that there hath nothing succeeded, either to our Desires or Hopes, but a Resolution of Despair of ever obtaining by the ways of Justice, Treaty, or Amity, that which hath been so often promised to, and expected of the Lovers of Christian Peace.
Notwithstanding we have lately received Advice from our dear Uncle the King of Denmark, that at last, by his Mediation and Procurement, the present Emperor and Duke of Bavaria, have condescended to a Treaty to be held at the Dyet at Ratisbone, upon the sixth Day of May last past, for the reviewing and the resettling of the Controversies of the House Palatine, as a Preparation and Inducement to a general Peace and Amnesty through the whole Empire: And that he, with some of the Electors of the Empire, is accepted as Mediator of the said Cause, and hath received strong and pregnant Assurances of a better Inclination and Disposition toward the Re-establishment of the Electoral Family in their Rights and Dignities: And to that end hath procured convenient, safe Conduct from the Emperor to our Nephew and his Brethren, freely to come in Person, or to send their Deputies to that Dyet at the Time and Place appointed; with all other Clauses requisite for their Safeties, going, abiding, or coming from thence; and there to plead the Justice of their own Cause: And that in Prosecution thereof, he hath instructed and dispatched his Ambassadors to assist either in Person, or by the Deputies of our Nephews, at the said Treaty of Pacification; and hath desired us herein to comply with him, by sending our Ambassadors qualified and instructed to the same Purpose of procuring a good and settled Peace within the Empire, according to the Intimation of the Princes Electors, signified to him by their Letters, thereby desiring us to assist in the present Assembly at Ratisbone.
To which end, our Nephew, the Prince Elector Palatine, having resolved, by our Counsel and Advice, to send his Deputies according to the Invitation and Hopes, intimated of a good Issue to be expected by the amicable way of Treaty and Composure.
We have also thought fit not to be wanting to so good a Design, so concurrent to our own, and the Desires of so many Princes, and in some Hope of better Fruits than hitherto all our Endeavours have produced, have resolved to make this our last Trial by the way of Treaties, and to send our Ambassador to
the Emperor, and other Princes in the said Dyet assembled: And to that Purpose have given him full power and Instructions to contribute all our Authority to the Procurement and Settlement of a good and blessed peace, by the Re-establishment and Restitution of the Possessions and Dignities of our said dear Sister, Nephews, and Electoral Family; without which no Peace can be either honest or secure: Hereby exhorting and desiring all other Kings, Princes, and States, our Friends, Allies and Consederates, who shall either be present at the said Dyet, or shall have their Ambassadors or Deputies there, that they will be assisting to the Justice of so good a Cause, and to so great a Blessing, as the restoring of Peace to the almost desolate Estate of Germany.
But because we may have just Cause to doubt, by many Experiences of our former Endeavours, that the Issue and Fruit of this Meeting may not be answerable to our just Expectation; but rather that it may produce contrary Effects, to the Prejudice of the Justice and Rights of our said Nephews and their Family (which God forbid) we are hereby forced to protest against all Acts, Sentences, Conclusions or Determinations whatsoever, which shall or may be had, made, or declared, either in Confirmation of the Oppressions and Usurpations past, or any Additions thereunto for the future, as invalid, and of no Power or Effect.
In which Case (being contrary to our Desire and Expectation) we also further protest and declare, That we will not abandon, neither our own, nor the publick Interest, nor the Cause, Rights, and just Pretences of our dear Sister and Nephews, and other Princes and States involved within their Oppressions: But that we will use and employ all such Force and Power wherewith God hath enabled us, both by our own Arms, and the Help and Assistance of all our Allies and Friends, to vindicate our own Honour, the publick Peace, and redress of the Injuries, Usurpations, and Oppressions of our said dearest Sister and Nephews, and their Illustrious Family.
And hereby as we do profess to use all our Endeavour and Power to promore a happy and desired Peace, for the Consolation of the distressed Empire; so we do appeal to Almighty God, the Inspector of the Hearts of all Princes; and to the World, the Spectator of all our just Action, that we will be innocent before God and the World, of all the Evils that may ensue, if these our last Hopes shall be delayed or abused.
The said Manifest concerning the Restitution of the Elector Palatine Family, having been seriously considered by both Houses; they, together, came to his Majesty in the Banquetting-House, on the Twelfth of July; where the Lord-Keeper delivered the said Houses Opinion and Resolution in this manner:
'Both the Houses have seriously considered of it, and have commanded me to present these their humble Advices unto your Sacred Majesty, which are expressed in this Declaration, which hath passed the Votes of both the Houses, and which I am commanded to read unto your Majesty.
Die Mecurij, 7 Julij, 1641.
Resolved upon the Question, That this House doth approve of his Majesty's Pious Intentions in the behalf of his Royal Sister, and his Nephew, the Prince Elector Palatine, and the rest of the Princes of that Family, and of the publishing this Manifest to that Purpose; and that this House will be ready to give his Majesty such Advice and Assistance therein by Parliament, as shall stand with the Honour of his Majesty, and the Interest and Affections of this Kingdom, if the present Treaty shall not succeed.
Die Sabbathi 10. Julij, 1641.
Thus much was delivered by the Speaker of the House of Peers, both Houses then attending his Majesty in the Banquetting-House at White-Hall. To which his Majesty was graciously pleased to make them this
A Speech delivered by Sir Simon D'Ewes, July 7. 1641. in the Palatine Cause, &c.
We have, during this Parliament, fallen upon the Debate of the greatest, and most important Affairs concerning your own Good and Welfare at home, that ever were agitated and discussed at one Meeting in the House of Commons. And we are at this present, by the gracious Invitation of his Royal Majesty, expressed in his most just Manifest read unto us, resolved to take into Consideration the most sublime, and most difficult Business of the Christian World abroad; which hath for the Space of above Twenty Years last past, drawn all the Kingdoms and States of Europe, into an immediate or mediate Engagement: In which there hath been Twenty pitch'd Battels sought, a Million of Men, Women, and Children destroyed by the Sword, by the Flames, by Famine, and by Pestilence; and that sometimes populous and fertile Empire of Germany, reduced to a most extream and calamitous Desolation. I have, in those few spare Hours I could borrow Yesterday, from the publick Service of the House, recollected some Particulars, which may conduce to the clearing of this great Cause, being drawn out of the Antographs themselves, or out of our Records at home, or out of the Writings of our very Adversaries, and others abroad. I shall therefore begin at the Original it self, of the never enough to be lamented Loss of the Prince Palatine's Dominions, and Electoral Dignity; that so we may take along with us, in our intended Disputes; not only our Affections, but our Consciences. It is therefore very manifest, to all that are but meanly vers'd in the Cabinet Affairs of Christendom; that the Jesuites have consulted for many Years last past, as well before as since the furious Wars of Germany, by what Means to ruin the Evangelical Princes and Party there. Their chief Aim hath been so to divide the Protestant Princes amongst themselves, as they might be made use of each against other, for the ruin each of the other. The first Occasion that offered it self within our Memories, was the Pretences of several Competitors to the Dukedoms of Cleve and Juliers, and they failed but a very little to have executed their intended Design upon that Occasion. But their Hopes failing in it, they apply themselves integrally to Ferdinand of Austria, Duke of Gratz, a Prince, not long since, so poor, and of so mean a Consideration to add the Weight of but one Grain to the down-balancing of the Affairs of Christendom, as his Name was scarce heard of.
They find him a fit Subject for them ro work upon, having from his Cradle been bred up in an extream hatred of the Protestant Party, who professed the Truth. They resound nothing into the Ears of the old Emperor Matthias, but his Cousin Ferdinand's high Merits; so as he passing by his own natural Brothers, and the Head of his House, the Spanish King adopts Ferdinand of Grats for his Son, so to prepare a way to make him the Successor of his Scepter, Crown and Purple.
Then were the sacred Dyets of the Empire, the ancient Means to reconcile Differences, and prevent Jealousies, as often dissolved abortively, as call'd insincerely. Rumours were spread of Practices and Designs against the Prorestant Princes and Cities: And that those Rumors might not vanish in Smoak, the Liberties of the great and ancient City of Strasburgh were opprest. The Protestant Princes seeing Materials and Engines on every side, prepared for their Ruin, were necessitated to meet at Hailbrun, and there to conclude an Union amongst themselves.
This gave the Jesuits an assured hope of making Germany speedily Miserable by a calamitous War; for not only the Pontifician Princes, took the Opportunity to settle a Catholick League, as they call'd it, among themselves; but also the Elector of Saxony, like a true Pseudo-Lutheran, neither Protestant nor Papist, shews as good an Affection to the Catholick League, as the Evangelick Union. The old Emperor Matthias, begins now to act his Part, and the Jesuits spur on their ready Scholar, Ferdinand of Gratz, to ascend the bloody Theatre they had so long designed him. Through the old Emperor's Intercession, abusing the Bohemian Protestants Credulity, with sug'red Flatteries, and large Promises, he is admitted to the Crown of that rich Kingdom; which soon after made way for him un to the Crown of Hungary also. The Jesuits and the Spaniards did now only want a fair occasion to begin a War in Germany. The Emperor Matthias labours with the Protestant Princes to dissolve their Union; which not taking Effect, the Bishop of Spiers is encouraged under-hand to pick a quarrel with the Prince Elector Palatine, and to build a strong Fortress, upon his Neighbours Territories, pretending he had right to that Plot of Ground, upon which the said Fortress was raised; but an higher Providence did not suffer this Spark to set Germany on fire, though it had been kindled at the Prince Elector's own Door (to affront and provoke him;) for he, by an incredible Celerity, did cause the said Fortress to be demolished before the Enemy could fit and furnish it for his intended use; which made him sit still and study for a new Occasion; which that it might not belong wanting, the Liberties and Priviledges of the Protestants in Behemia, contrary to their new King Ferdinand's Oath, were temerated; and by that means, in the Year 1619, the greater part of the Estates of that Kingdom, were necessitated after the mature Deliberation, to abdicate him, and to elect Frederick, Prince Elector Palatine for their King.
And thus are we arrived at that sad Period of time; upon which so many fatalities have ensued, in which we may see evidently, that the Prince Elector Palatine was not casually guilty of any part of that Oceon of Blood that hath been since split in Germany, as the Pontifician side pretend he was. The Scene was long before prepared by the Enemies of the Truth; and the Kingdom of Bohemia was filled with Arms and Hostilities divers Months before his accepting of that Crown, when himself laboured, by an earnest Meditation, to have given a peaceable Issue to those bloody Beginnings. It was the Honom and Greatness of that matchless Princess, that he gained here, and the considerable Succours they expected from hence, that especially drew the Behemians to that Choice. It therefore concerns us now at length, to provide that the Prince Elector himself, and the other Princely Branches of that Family (being the second without question, if not the first, and most ancient of the Empire) extracted by their last Match, from the Royal Line of Great Britain, should not under colour of their Father's accepting that Crown, to which they now pretend no Title, be for ever despoiled of their ancient Inheritance, the Electoral Dignity: To which Calamity they had never been reduced, had not the French King at that time forgotten the old Maxim of his Predecessors, which was to keep even the balance of Germany, to which also did most fatally concur, the Duke of Bavaria's Ambition, betraying his own Blood, and the Duke of Saxony's taking of Arms against the Evangelical Party. By this means, and the advancing of Spinola with the Spanish Army out of the Netherlands, was not only the Kingdom
dom of Bohemia lost in a few Months, but the Palatinate also (excepting some few Places of Strength invested by the Enemy) and that poor People, left to Slaughter, Calamity, and Desolation. The Correspondence of some ill Ministers of this State abroad, with those of foreign States here, assisted by some fatal Instruments at home, furthered all this Mischief at the Instant, putting this State in hope of a Match; when Supplies should rather have been sent from hence, to have preserved, at least, the Electoral Territories from an invading Power. It is true, that the Spanish Match had been generally treated of, some five or six years before this fatal Fire kindled in Germany, being first set on foot by the Duke of Lerma, under Philip of Austria, the late King of Spain; but now it was effectually advanced and fortified with a conjoin'd Treaty of accommodating the Palatine Cause without Effusion of Blood. This and much more appears in the Original Journal-Books of the Two Houses of Parliament, in An. 21 Jacobi Regis, which I have so far perused, as so short a Time would give leave; and though that Matters are there set down at large, especially in the Records of the House of Peers, yet I have abstracted it into so narrow a Compass, as may well sort with the little spare Time of this House to hear it. The Relation was first made at White-Hall, during that Parliament, in the Presence of the greater part of both the said Houses, on Tuesday, Feb. 24. And it was afterwards reported upon Friday the 27th Day of the same Month next ensuing, in the Lords House, by the then Lord-Keeper, and in the House of Commons by Sir Richard Weston, at that Time Chancellor of the Exchequer. It is there at large set forth, That his Majesty's Royal Father, having had several fair Promises from the Emperor Ferdinand II. and the King of Spain, of a peaceable Restitution of the Palatinate, caused not only such considerable Forces, as were then remaining in Germany, under the Prince Elector's Ensigns, to disband; but procured also some Places of Strength in the Palatinate it self, to be surrendred and consigned over in trust to the late Infanta of Spain. But in the Year 1622, our late Royal Sovereign, King James, upon his Embassador's return from Bruxels, having discovered the Emperor's Intentions to be full of Insincerity and Deceit, wrote his Princely Letters, bearing date at Hampton-Court, Octob. 3. 1622. to the (then and still) Earl of Bristol, his Majesty's Extraordinary Embassador in Spain, to let him know that he now perceived little Sincerity in all the Spanish King's Promises, for the peaceable Restitution of the Palatinate, by whose only Means he had suffered the same to be lost to the Emperor; and that therefore he should presently press that King, either to give a full and direct Answer under his Hand and Seal for the Restitution thereof; or else to join his Arms with his Majesty, against the Emperor, for the Recovery of the same. But this Matter, as it further appears by the original Journal-Books of ths Lords House, being either not throughly pressed, or notably dissembled, so many Delays ensued one upon the Neck of another, as in the Issue it drew his Royal Majesty, then Prince of Wales, to undertake that dangerous and remote Journey unto that Nation, which hath been the long and hereditary Enemy of England. This Journey was chiefly undertaken by so great a Prince, to put an end, one Way or other, to that unfortunate Treaty; and his Stay in Spain so long, did casually proceed from his earnest Desire to have effected a peaceable Restitution of the Palatinate; and therefore I doubt not, but he shall now live to verifie that excellent and heroick Expression which he made to the Conde de Olivarez, a little before his coming out of that Kingdom
Look for neither Marriage nor Friendship, without the Restitution of the Palatinate.
And I assure my self, that the Force and Power of Great-Britain, which was lately, by subtile and wicked Instruments divided against it self, being now united in one again, will be able to effect such great and considerable Actions, as shall render his Majesty's Name and Reign glorious to all Posterity. The Two Houses of Parliament, at that Time received the before-mentioned Declaration, with so much Resentment, as having first rendred Glory to God, that had so seasonably discovered the Spanish Frauds, and next their humble Acknowledgments to their then Gracious Sovereign, for requiring their Counsels in a Business of so great Importance, they did unanimously advise him to break off the said Two Treaties, touching the Marriage, and the Restitution of the Palatinate; engaging no less than their Persons and Purses, for the Recovery of the
A Speech upon the first Day's Debate, concerning the Palatinate, by Sir Benjamin Rudyard.
If we consider Religion according to Reason of State, we shall find that Christendom divides it self into two Sides; with the Pope against the Pope His Majesty is the greatest King of the Religion, and therefore fittest to be the Head of that Party; which will add a greater Greatness to him than can be gotten any other Way
The Means of it are, first, To preserve Religion found and entire within his own Kingdoms at Home: Next to unite the homogenial Parts of it, Pieces of the same, together by Alliances, by Consederations abroad.
The restoring of the Prince Elector to his Territory and Dignity, will restore Religion there, will strengthen it, nay encrease it further in Germany; which Consideration is of a great and vast Consequence, proportionable to the Greatness and Vastness of that Country. It will likewise refresh and comfort the needful Heart of that most Noble, Vertuous, and Magnimously suffering Queen of Bohemia, his Majesty's Sister, his Highness Mother, who is ever to be highly and tenderly regarded by this House, by this Kingdom.
This is a sit Conjuncture of Time to begin it in, whilst the King of Spain hath so much to do of his own, as he is not able to afford his usual Aids to the Emperor, which probably may induce the Emperor to abate of former Resolutions.
That which is now propounded, is only a Manifest, to express and declare our Zeal and Heartiness to the Cause, thereby to give it Countenance and Reputation in the present Dyet at Ratisbone. Reputation, in Matters of State, doth many Times prevail as much as Substance.
His Majesty's Father of blessed Memory, and himself, have for many Years mediated and treated with the successive Emperors, by all fair and amicable Ways. They have been deluded, they have been neglected: It behoves us, Mr. Speaker, to be Englishly sensible of the Injustice, of the Indignity.
Another Speech upon the Second Day, concerning the Palatinate, by Sir Benjamin Rudyard, at a Committee of the whole House.
His Majesty's Ambassador is now at the Dyet at Ratisbone, where the Emperor and other Princes, are by friendly Treaties endeavouring to make up the Breaches of Germany. If this Opportunity be omitted, his Highness Affairs will be exceedingly cast behind hand.
It is true, that our Treaties heretofore have not been prosperous; the Reason hath been, because of the unhappy Distance between the King and his People, which brought a disvalue upon this Kingdom abroad. But now, when the World shall take notice of the good Understanding between his Majesty and his Subjects, by an earnest and solemn joining of the whole Parliament with his Majesty's Declaration, the Propositions coming from hence, will carry with them more Weight, more Authority; which is the Way to redeem our Engagement at an easie Rate, to save those great Charges which some do so much fear.
Wherefore, Mr. Whitlock, my humble Motion is, That we may draw up a short and round Manifest, to wait upon and affirm the King's Declaration to be still managed by Advice of Parliament, which will be safe for our selves, and more powerful and effectual for the Prince Elector.
Mr. Denzil Hollis's Speech to the Lords, concerning the settling of the Queen of Bohemia, and her Electoral Family, in their Right and Inheritance, with Restitution for their Sufferings, July 9. 1641.
The Knights, Citizens, and Burgesses of the House of Commons, have commanded me to let your Lordships know, that they have taken into their serious Consideration his Majesty's Proposal to them of the Manifest; in which he is graciously pleased to declare his pious Intentions concerning his Royal Sister, the Prince Palatine her Son, and the rest of the Electoral Family.
They do with all Humbleness acknowledge his Majesty's Favour, in communicating unto them any part of his Royal Thoughts, and asking their Advice and Counsel in a Business that doth so nearly concern him, as needs must the Happiness, nay, the Subsistence of these distressed Princes, of so glorious an Extraction, their Veins being enriched with the same Blood, that is, from so Royal Ancestors, derived with Glory into his Sacred Person.
And in that Relation, the House of Commons looks upon them with an Eye of Tenderness, wishing that every Drop of that Princely Blood may ever be illustrated with Honour and Happiness: That his Majesty may be crowned with this Blessing, to see nothing but Glory in himself and all that belong unto him.
To hear then, that these Princes, so nearly allied unto the King, should suffer that which is so unworthy of them; instead of Honour, of Greatness, to find Oppression; instead of a Fortune answerable to their Birth and Relation, to have their ancient Patrimony torn from them, and detained by a Hand of Violence, is a Thing which makes our Ears to tingle, and our Hearts to rise within us.
My Lords, The Loyal Subject of England is so well tuned in a sweet agreeing Harmony to the Person of his Prince, that he is affected with the least Touch upon any part of the Princely Offspring, and answers it instantly with a Sound proportionable; if it be good and pleasant, with Joy and Exultation; if harsh and despleasant, with Sorrow and Lamentation; but a Sorrow not womanish and fatuant, but accompained with Indignation, and vigorous, magnanimous Resolution, to be avenged upon whosoever dare give Offence to our Royal Sovereign.
This then is enough to make us zealous for the Redress of the Prince Elector's Wrongs, to desire (with Impatience) to see him re-invested in his rightful Possessions, were there nothing else to move us to it, but our Love and Affection, and our Duty to the King.
But, My Lords, there is yet another Motive, which hath a strong irresistable Operation with us; and it is the Consideration, how much this is of Importance to the good of Religion, the advancement of the Protestant Party, and redeeming many Souls from their Antichristian Bondage; which hath a double Aspect, and relates to us, not only as we are Fellow-Members with them of the true Church, which obliges us to a Care and Defence of them, and gives us an Assurance of a Reward in Heaven; but doth more particularly concern us in Point of Policy and Reason of State, by supporting our Allies, to advance this Kingdom to the highest Pitch of Greatness and Reputation, to make us formidable abroad to the Enemies of our Church and State, and so enjoy Peace and Safety, and Tranquility at home.
It is Madness to think this State can subsist, if Religion be subverted; and as great a Madness to think our Religion can continue here, if we suffer it to be destroyed and eradicated out of the neighbour Countries; which can no more be (that is, our Religion and this Kingdom be preserved) when our Neighbours of the same Religion and Belief with us, be consumed, than a Fort can hold out, when all the Out-works be taken; or the Heart preserved, when a Gangrene hath seiz'd on the outward Parts of the Body.
My Lords, As the true Religion is in Truth the Heart of England, which gives it Life, and makes it flourish with Strength and Power; so is England (in a Politick respect) the Heart of the Protestant Religion in all the other Parts of Christendom; and upon Occasion, must send out Supply into all the neighbouring Countries, professing the same Religion with it; which (to be themselves in Safety) must be under the Protection of this Fort, under Contribution to this Garrison.
And on the other side, if these Countries be one after another Invaded and Possessed by the Enemies of our Religion, that great Tye of Religion between us, and those Bonds will be dissolved, which only can unite and strengthen our mutual Affections and Relation; as if they get one Part, their Appetite will encrease soon to swallow up another.
First, The Palatinate; then the other Ports of Germany; afterwards the Low-Countries; and then let us think in what Condition England will stand; It will be lest as a Cottage in a Vine Yard; as a Lodge in a Garden of Cucumbers; as a Besieged City, when all the Defences are gone; it will soon fall to be a Prey of the Enemy.
My Lords, This Consideration likewise works with the Commons of England; and as the Wise Man is to have his Eyes in his Head, and look before him; so they do look before them, and had rather see this Evil met half way, than stay till it come to them; rather see the eating Gangrene of the Austrian Ambition in Germany, than tarry till it seize upon the Vital Parts of this Island, and the Death of Religion inevitably follow.
This Business took up a serious Debate, and after much time, and many Arguments spent upon the Subject, the Knights, Citizens, and Burgesses assembled in Parliament, came to this Resolution, which was here read. This they have commanded me to represent unto your Lordships, and desire your Lordships will join with them in a Tender of the like Advice unto his Majesty, in Approbation of his Royal Intendments.
And likewise, That his Majesty may be moved in the Name of both Houses, to recommend this Business unto his Parliament of Scotland, to have the Consent and Furtherance of that Kingdom; that as we be Brethren in mutual Affection, in an equal Tye of Duty and Allegiance unto the King our Sovereign; so we may be Brethren also in the same tender Care, and loving Zeal, for the Good and Support of his Majesty's Kindred, and their Restitution, with their ancient Inheritance, and the Safety of the Reformed Churches.
This Day also Sir Benjamin Rudyard delivered a Message from his Majesty to the Commons, concerning the Queen-Mother, viz. That his Majesty desired her Departure, if Monies could be obtained for sending her away; and that less than Ten Thousand Pounds would not suffice for that purpose: Whereupon it was concluded by the Commons, that there should be so much Money presently paid out of the Poll-Money, for the speedy sending her away.
'Mary de Medicis, Queen Dowager of France, having been here a chargeable Guest, till the Entrance into our much Misery (a Fate that followed her where-e'er she came, as if this unfortunate Princess had always carried ill Luck in her Company) took her leave, with the good-liking of King and People; who was conveyed over to Holland by the Earl of Arundel, appointed by his Majesty to wait upon her, and to remain beyond the Seas during Pleasure, which lasted to her Death, at Cologne in Germany, whither that Queen, after some short Stay in Holland, retired; and there also this great Princess, overwhelm'd with Miseries and old Age, and in a Condition of Melancholy, fell sick, and deid in the Nature of an Exile, whilst Cardinal Richelieu, whom she had raised so high, stood fast in the Favour of the King her Son, having the intire Administration of Affairs, and slighted her Misfortunes.
The Committee for the Judges making their Report, the Charges against the Judges were read in the House of Commons; and by them Ordered to be sent up to the Lords; upon the delivery of which, the following respective Speeches were made to their Lordships.
The Speech of William Pierpoint, Second Son to the Right Honourable the Earl of Kingston, against Sir Robert Berkley, Kt. one of the Justices of the King's-Bench; at a Conference of both Houses in the Painted-Chamber, July 6. 1641.
I am Commanded to present to your Lordships these Articles, with which the Knights, Citizens, and Burgesses of the Commmons House of Parliament, in their own Name, and in the Name of all the Commons of England; Impeach Sir Robert Berkley, one of the Justices of his Majesty's Court of King's Bench, in Maintenance of their Accusation of High-Treason, and other Great Misdemeanors. They desire that the Articles may be Read: Which was done by Mr. Newport.
Articles of Impeachment of Sir Robert Berkley, Kt. one of the Justices of the Court of King's Bench, by the Commons in this present Parliament Assembled, in their own Name, and in the Name of all the Commons of England, in Maintenance of their Accusation; whereby be standeth Charged with High-Treason, and other great Misdemeanours.
Imprimis, That the said Sir Robert Berkley, then being one of the Justices of the said Court of King's-Bench, hath Traiterously and Wickedly endeavoured to Subvert the Fundamental Laws and Established Government of the Realm of England; and instead thereof to introduce an Arbitrary and Tyrannical Government against Law, which he hath declared by Traiterous and Wicked Words, Opinions, Judgments, Practices and Actions, appearing in the said Articles ensuing.
- II. Whereas by the Statute made in the Five and twentieth Year of the Reign of the late King Henry the Eighth, Prices of Victuals are appointed to be Rated, in such manner, as in the Statute is Declared: But it is manifest, by the said Statute, Corn is none of the Victuals thereby intended. Nevertheless, some ill affected Persons, endeavouring to bring a Charge upon the Subjects, contrary to Law, did surmise, that the Prices of Corn might be Rated in such manner, and set according to the Direction of that Statute, and thereupon great Gain might be raised to his Majesty, being procured to the Judges, and sent to them by William Noy, Esq; his Majesty's then Attorney-General, to deliver their Opinions touching the Question, whether Corn was such Victuals as was intended, to have the Price rated within the said Statute: In Answer to such Demand, the said Sir Robert Berkley, then being one of His Majesty's Justices of the Court of King's-Bench, in furtherance of the said Unlawful Charge endeavoured to be imposed, as aforesaid, the Thirtieth Day of November, in the Eighth Year of his now Majesty's Reign, did deliver his Opinion, That Corn was such Victual, as was intended to have the Price rated within the said Statute; which said Opinion was contrary to Law, and to the plain Sense and Meaning of the said Statute; and contrary to his own Knowledge, and was given and delivered by him, with a Purpose and Intention, that the said unlawful Charge might be imposed upon the Subject.
- III. That an Information being preferred in the Court of Star-Chamber by the said William Noy, His Majesty's then Attorney-General, against John Overman, and Fifteen other Soapmakers, Defendants, charging them with several pretended Offences, contrary to divers Letters Patents and Proclamations, touching the making and uttering Soap, and using the Trade of Soapmakers, and other Offences in the said Information mentioned; whereunto the Defendants did Plead and Demurr as to part, and answer to other part of the said Information: And the said Plea and Demurrer being over-ruled; for that the Particulars therein insisted upon, would appear more fully after Answer and Proof; therefore the Defendants were ordered to Answer without Prejudice, and were to be admitted to such Exceptions to the said Information and Advantages of the Matter of the Plea and Demurrer, upon the Hearing, as should be material; and accordingly the Defendants did put in their Answers, and set forth several Acts of Parliament, Letters Patents, Charters, Customs, and Act of Common-Council of the City of London, and other Matters materially conducing to their Defence; and in Conclusion Pleaded not Guilty. The said Sir Robert Berkley, then being one of the Justices of the Court of King's-Bench, upon the Thirtieth of March, in the Eighth Year of his Majesty's now Reign, upon an Order of Reference to him and others, by the said Court of Star-Chamber, to consider of the Impertinency of the said Answers, did Certifie the said Court of Star-Chamber, that the whole Answers, excepting Four Words, and the Ten last Lines, should be expunged, leaving thereby no more Substance of the said Answers, than the Plea of not Guilty. And after, upon a Reference to him and others, by Order of the said Court, of the Impertinency of the Interrogatories, and Depositions of the Witnesses taken on the Defendant's Part, in the same Case; the said Sir Robert Berkley, upon the Second Day of May, in the Eighth Year of his now Majesty's Reign, Certified, That Nine and Thirty of the said Interrogatories, and the Deposition's upon them taken, should be suppressed, with the Answers (except as aforesaid) although the same did contain the said Defendant's most material Defence; yet were the same expunged and suppressed, according to the said Certificates; both which said Certificates were contrary to Law and Justice, and contrary to his the said Sir Robert Berkley's own Knowledge, and contrary to the said former Order; whereby the Advantages were saved to the Defendants, as aforesaid: And by Reason thereof, the said John Overman, and the said other Fifteen Defendants, were sentenced in the said Court of Star-Chamber, to be committed Prisoners to the Fleet, and disabled from using their Trade of Soapmakers, and one of them Fined in a Thousand five hundred Pounds; two of them in a thousand Pound a-piece; four of them in a thousand Mark a-piece; which Fines were
- Estreated into the Exchequer without any Mitigation: And the said Defendants, according to the said Sentence, were imprisoned and deprived of their Trade and Livelihood, tending to the utter Ruin of the said Defendants, and to the overthrow of free Trade, and contrary to the Liberty of Subjects.
- IV. That he the said Sir Robert Berkley, then being one of the Justices of the King's-Bench, and having taken an Oath for the due Administration of Justice, according to the Laws and Statutes of this Realm, to his Majesty's Liege People, on or about the last of December subscribed an Opinion in hœc verba. [I am of Opinion, that as where the Benefit doth more particularly redound to the Good of the Ports or Maritime Parts (as in Case of Pyracy or Depredations upon the Seas) there the Charge hath been, and may be lawfully imposed upon them, according to the Precedents of former Times: So where the Safety and Good of the Kingdom in general is concerned and the whole Kingdom in danger (of which his Majesty is the only Judge) there the Charge of the Defence ought to be born by all the Realm in General: This I hold agreeable both to Law and Reason,
- V. That he the said Sir Robert Berkley, then being one of the Justices of the Court of King's-Bench, and duly sworn as aforesaid; in February 1639. subscribed an Extrajudicial Opinion in answer to Questions, in a Letter from his Majesty, in hœc verba.
'When the Good and Safety of this Kingdom in general is concerned, and the whole Kingdom is in Danger, Whether may not the Kings, by Writs under the Great Seal of England, command all the Subjects of this Kingdom, at their Charge, to provide and furnish such Number of Ships, with Men, Victuals and Munition, and for such time as he shall think fit, for the Defence and Safeguard of the Kingdom from such Peril and Danger; and by Law compel the doing thereof in case of Refusal or Refractoriness? And whether in such Case, is not the King the sole Judge, both of the Danger, and when and how the same is to be prevented and avoided?
May it please your Most Excellent Majesty,
'We have, according to your Majesty's Command, severally every Man by himself and all of us together, taken into serious Consideration the Case and Question, signed by your Majesty, and inclosed in your Royal Letter: And we are of Opinion, That when the Good and Safety of the Kingdom in general is concerned, and the whole Kingdom in Danger, your Majesty may by Writ, under the Great Seal of England, command all the Subjects of this your Kingdom, at their Charge, to provide and furnish such Number of Ships, with Men, Victual and Munition; and for such time as your Majesty shall think fit, for the Defence and Safeguard of the Kingdom from such Danger and Peril; and that by Law your Majesty may compel the doing thereof in case of Refusal or Refractoriness: And we also are of Opinion, That in such Case your Majesty is the sole Judge, both of the Danger, and when and how the same is to be prevented and avoided.
VI. That he the said Sir Robert Berkley, then being one of the Justices of the Court of King's-Bench, and duly sworn as aforesaid, did on the deliver his Opinion in the Exchequer-Chamber, against John Hampden, Esq; in the Case of Ship-Money, that he the said John Hampden, upon the Matter and Substance of the Case, was chargeable with the Money then in Question: A Copy of which Proceeding and Judgment, the Commons of this present Parliament have delivered to your Lordships.
VII. That he the said Sir Robert Berkley, then being one of the Justices of the Court of King's-Bench, and one of the Justices of Assize for the County of York, in Lent 1636. did deliver in his Charge to the Grand-Jury, That it was a lawful and inseparable Flower of the Crown, for the King to command, not only the Maricime Counties, but also those that were Inland to find Ships for the Defence of the Kingdom. And then likewise falsly and maliciously assirmed, That it was not his single Judgment, but the Judgment of all his Brethren, witnessed by their Subscriptions: And then also said, That there was a Rumour, that some of his Brethren that had subscribed, were of a contrary Judgment: But it was a base and unworthy thing for any to give his Hand contrary to his Heart; and then wished for his own part, that his Hand might rot from his Arm that was guilty of any such Crime, when as he knew that Mr. Justice Hutton, and Mr. Justice Crook, who had subscribed, were of a contrary Opinion, and was present when they were persuaded to subscribe; and did subscribe for Conformity, only because the major Number of the Judges had subscribed. And he the said Sir Robert Berkley, then also said, That in some Cases, the Judges were above an Act of Parliament; which said malicious Words were uttered, as aforesaid, with Intent and Purpose to countenance and maintain the said unjust Opinion, and to terrifie his Majesty's Subjects that should refuse to pay Ship-Money, or seek any Remedy by Law, against the said unjust and illegal Taxation.
VIII. That whereas Richard Chambers, Merchant, having commenc'd a Suit for Trespass and false Imprisonment against Sir Edward Bromfield, Knight, for imprisoning him the said Chambers for refusing to pay Ship-Money, in the time that the said Sir Edward Bromfield was Lord-Mayor of the City of London; in which Suit the said Sir Edward Bromfield did make a special Justification: The said Sir Robert Berkley then being one of the Justices of the Court of King's-Bench, in Trinity -Term last, then sitting on the Bench in the said Court, upon debate of the said Case, between the said Chambers and Sir Edward Bromfield, said openly in the Court, That there was a Rule of Law, and a Rule of Government: And that many Things which might not be done by the Rule of Law, might be done by the Rule of Government; and would not suffer the Point of the Legality of Ship-Money to be argued by the said Chamber's Council; all which Opinions, Declarations, Words and Speeches, contained in the Third, Fourth, Fifth, Sixth, Seventh, and Eighth Articles, are destructive to the Fundamental Laws of this Realm, the Subjects Right of Property, and contrary to former Resolutions in Parliament, and to the Petition of Right; which Resolutions of Parliament and Petition of Right were well known to him, and resolved and enacted when he was the King's Serjeant at Law, and Attendant in the Lords House of Parliament.
IX. That he the said Sir Robert Berkley, then being one of the Judges of the Court of King's-Bench, and being in Commission of the Peace, and duly sworn to execute the Office of a Justice of the Peace in the County of Hertford, on or about the seventh of January 1638. at which time the General Sessions of the Peace for the said County were there holden, the said Sir Robert Berkley, then and there sitting on the Bench, did revile, and threaten the Grand-Jury, return'd to serve at the said Sessions, for presenting the Removal of the Communion-Table in All-Saints Church in Hertford aforesaid, out of the Place where it anciently and usually stood, and setting it Altar-wise, against the Laws of this Realm, in that Case made and provided, as an Innovation in Matters concerning the Church; the said Grand-Jury having delivered to them in Charge at the said Sessions, by Mr. Serjeant Atkins, a Justice of Peace of the said County of Hertford, that by the Oath they had taken, they were bound to present all Innovations concerning Church Matters. And he the said Robert Berkley, compelled the Foreman of the Jury to tell him who gave him any such Information; and thereby knowing it to be one Henry Brown, one of the said Grand-Jury, he asked the said Brown, how he durst meddle with Church Matters; who affirming that in the said Charge from Mr. Serjeant Atkins, the said Jury was charged to do; he the said Sir Robert Berkley, told the said Brown, he should therefore find Sureties for his Good Behaviour; and that he the said Sir Robert Berkley would set a great Fine on his Head, to make him an Example to others; and thereupon the said Brown offered sufficient Bail, but he the said Sir Robert Berkley being incens'd against him, resused the said Bail, and committed the said Brown to Prison. where he lay in Irons till the next Morning, and used to the said Brown, and the rest of the Jurors, many other reviling and terrifying Specches; and said, He knew no Law for the said Presentment, and told the said Brown, That he had Sinned in the said Presentment; and he compelled the said Grand-Jurors to say, that they were sorry for what they had done in that Presentment, and bid them to trample the said Presentment under their Feet, and caused Brown to tear the said Presentment in his Sight: And he the said Sir Robert Berkley, when as John Houland, and Ralph Pemberton, late Mayor of St. Albans, came to desire his Opinion on several Indictments against John Brown, Parson of St. Albans, and Anthony Smith, Vicar of St. Peters in St. Albans, at the Quarter-Sessions held at the said Town of St. Albans, on the 24th of June, 1639, for the removal of the Communion-Table out of the usual Place, and not administring the Sacrament according to Law in that Case provided. He the said Sir Robert Berkley then told them, That such an Indictment was before him at Hartford, and that he quashed the same, and imprisoned the Promoters; by which threatning and reviling Speeches, unjust Actions and Declarations, he so terrified the Jurors in those Parts, that they durst not present any Innovations in the Church Matters, to their great Grief, and trouble of their Consciences.
And whereas several Indictments were preferred against John Brook, Parson of Yarmouth, by John Ingram, and John Carter, for refusing several Times to administer the Sacrament of the Lord's-Supper to them without any lawful Cause, at the Assizes held at Norwich in 1633. he the said Sir Robert Berkley then being one of the Judges of the Assize, proceeded then to the Tryal on the said Indictment, where the Matter in lssue being, That the said Brook refused to administer the said Sacrament, because the said Ingram and Carter would not receive Tickets with their Sir-Names before their Christian-Names; which was a Course never used amongst them, but by the said Brook. He the said Sir Robert Berkley did then much discourage the said Ingram's Council, and over-rule the Cause for Matter of Law, so as the Jury never went from the Bar, bat there found for the said Brook. And the said Sir Robert Berkley bound the said Ingram to the Good-Behaviour for prosecuting the said Indictments; and ordered him to pay Costs to the said Brook for wrongfully indicting him. And whereas the said Carter, not expecting the Tryal at the same Assizes he preferred his Indictment, was then absent; whereupon the said Sir Robert Berkley did cause to be entred upon the said Indictment, a Vacat quia non sufficiens in Lege; and ordered an Attachment against the said Carter; which said Proceedings against the said Ingram and Carter, by the said Sir Robert Berkley, were contrary to Law and Justice, and to his own Knowledge.
X. That the said Sir Robert Berkley, being one of the Justices of the Court of King's-Bench, and duly sworn as aforesaid, in Trinity -Term, 1637, deferred to discharge or bail Alexander Jennings, Prisoner in the Fleet, brought by Habeas Corpus to the Bar of the said Court, the Return of his Commitment being, that he was committed by two several Warrants, from the Lords of the Council, dated the 5th of November 1636, the first being only read in Court, expressing no Cause; the other for not paying Messengers Fees; and until he should bring a Certificate, that he had paid his Assessment for Ship-Money in the County of Bucks; but remitted him. And in Michaelmas -Term after, the said Jennings, being brought by another Habeas Corpus before him as aforesaid, and the same returned; yet he the said Sir Robert Berkley, refused to discharge or bail him, but remitted him. And in Easter -Term, after several Rules were given for his Majesty's Council to shew Cause why the said Jennings should not be bailed; a fourth Rule was made for the said Jennings, to let his Majesty's Attorney-General have notice thereof; and notice was given accordingly; and the said Jennings, by another Habeas Corpus, brought to the Bar in Trinity -Term after, and the same Return, with this Addition of a new Commitment of the 4th of May, suggesting that he the said Jennings, had used divers scandalous Words in Derogation and Disparagement of his Majesty's Government: He the said Jennings, after several Rules in the End of the said Trinity -Term, was again remitted to Prison: And he the said Sir Robert Berkley did, on the 5th of June last, defer to grant his Majesty's Writs of Habeas Corpus for William Pargiter and Samuel Danvers, Esquires, Prisoners in the Gate-House and in the Fleet: And afterwards, having granted the said Writ of Habeas Corpus, the said Pargiter and Danvers were, on the 8th of June last, brought to the Bar of the said Court, where the Returns of their Commitments were several Warrants from the Lords of the Council, not expressing any Cause; yet he the said Sir Robert Berkley, then sitting in the said Court, deferred to bail the said Pargiter and Danvers, and the 18th of June last, made a Rule for a new Return to be received; which was returned the 25th of June last, in hœc verba.
'Whereas his Majesty finding that his Subjects of Scotland, have, in a rebellious and hostile Manner, assembled themselves together, and intend, not only to shake off their Obedience unto his Majesty, but also as Enemies to invade and infest this his Kingdom, to the Danger of his Royal Person, &c.
'For Prevention whereof his Majesty hath, by Advice of his Council-Board, given special Commandment to all the Lord-Lieutenants of all the Counties of this Realm, appointed for their Rendezvouz in their several and respective Counties, there to be conducted and drawn together into a Body for this Service. And whereas his Majesty, according to the Laws and Statutes of this Realm, and the constant Custom of his Predecessors, Kings and Queens of this Realm, hath Power for the Defence of this Kingdom, and resisting the Force of the Enemies thereof, to grant forth Commissions under his Great Seal, to such fit Persons as he shall make choice of to array and arm the Subjects of this Kingdom, and to compel those who are of able Body, and of able Estates, to arm themselves; and such as should not be able of Bodies, but of Ability of Estate, to assess them according to their Estates, to contribute towards the Charge of arraying and arming others, being able of Body, and not able in Estate to arm themselves. And such Persons as should be contrariant, to commit to Prison, there to remain until the King should take further Order therein.
'And whereas the Earl of Exeter, by Virtue of his Majesty's Commission to him directed, for the arraying and arming of a certain Number of Persons in the County of Northampton, hath assess'd William Pargiter, being a Man unsit in Body for that Service, but being of Estate and Ability, sit to contribute, amongst others, to pay the Sum of five Shillings toward the arraying and arming of others of able Bodies, and wanting Ability to array and arm themselves.
'And whereas we have received Information from the said Earl, that the said William Pargiter, hath not only in a wilful and disobedient Mannner refused to pay the said Money assessed upon him towards so important a Service, to the Disturbance and Hindrance of the necessary Defence of this Kingdom, but also by his ill Example hath misled many others, and, as we have just Cause to believe, hath practised to seduce others from that ready Obedience which they owe, and would otherwise have yielded to his Majesty's just Command, for the publick Defence of his Person and Kingdom, which we purpose with all convenient Speed to enquire further of and examine.
'These are therefore to will and require you to take into your Custody the Persons of the said William Pargiter, and Samuel Danvers, and them safely to keep Prisoners till further Order from this Board, or until by due Course of Law they shall be delivered.
Yet he the said Sir Rorbert Berkley, being desired to bail the said Pargiter and Danvers, remitted them, where they remained Prisoners till the 9th of November last, or thereabouts; although the said Jennings, Pargiter, and Danvers, on all and every the said Returns, were clearly bailable by Law, and the Council of the said Jennings, Pargiter, and Danvers, offered in Court very sufficient Bail: And he the said Sir Robert Berkley, being one of the Justices of the Court of King's-Bench, denied to grant his Majesty's Writs of Habeas Corpus to very many others his Majesty's Subjects; and when he had granted the said Writs of Habeas Corpus to very many others his Majesty's Subjects, and on the Return no Cause appeared, or such only as was clearly bailable by Law; yet he remanded them, where they remained Prisoners very long: Which said deferring to grant the said Writs of Habeas Corpus, and Refusals and Delays to discharge Prisoners, or suffer them to be bailed, contained in this Article, are destructive to the Fundamental Laws of this Realm, and contrary to former Resolutions in Parliament, and to the Petition of Right, which said Resolutions and Petition of Right were well known to him the said Sir Robert Berkley, and were resolved on and enacted, when he was the King's Serjeant-at-Law, and Attendant in the Lords House in Parliament.
That whereas there was a Cause depending in the Court-Christian at Norwich, between Samuel Booty, Clerk, and Collard, for Two Shillings in the Pound, for Tythes, for Rents and Houses in Norwich; and the said Collard moved by his Council in the Court of King's-Bench, for a Prohibition to stay Proceedings in the Court-Christian at Norwich, and delivered into the said Court of King's-Bench, his Suggestions, that the said Cause in the said Court-Christian, was only for Tythes, for Rents of Houses in Norwich; which was determinable by the Common Law only; yet he the said Sir Robert Berkley, being one of the Justices of the said Court of King's-Bench, and sitting in the said Court, deferred to grant a Prohibition to the said Court-Christian in the said Cause, although the Council did move in the said Court many several Times, and several Terms, for a Prohibition: And he the said Sir Robert Berkley deferred to grant his Majesty's Writ of Prohibition to several other Courts, on the Motions of divers others of his Majesty's Subjects, where the same by the Laws of this Realm ought to have been granted, contrary to the Laws of this Realm and his own Knowledge.
All which Words, Opinions and Actious, were so spoken and done by him the said Sir Robert Berkley, traiterously and wickedly, to alienate the Hearts of his Majesty's Liege People from his Majesty, to set a Division betwixt them, and to subvert the Fundamental Laws and Established Government of his Majesty's Realm of England; for which they do impeach him the said Sir Robert Berkley, one of the Justices of the Court of King's-Bench, of High-Treason against our Sovereign Lord the King, his Crown and Dignity, and of the Misdemeanors above mentioned.
And the said Commons, by Protestation, saving to themselves only the Liberties of exhibiting at any Time hereafter, any other Accusation or Impeachment against the said Sir Robert Berkley, and also of replying to the Answer, that he the said Sir Robert Berkley shall make to the said Articles, or any of them, or of offering Proof of the Premises, or any other Impeachments or Accusations that shall be exhibited by them, as the Case shall, according to the Course of Parliaments, require, do pray that the said Sir Robert Berkley, one of the Justices of the Court of King's-Bench, may be put to answer to all and every the Premises; and that such Proceedings, Examinations, Tryals, Judgments, and Executions, may be upon every of them had and used, as is agreeable to Law and Justice.
The High-Treason is in the first Article, in his Endeavours to subvert the Fundamental Laws of this Realm, and to introduce an Arbitrary and Tyrannical Government, which have been lately adjudged Treason, in the Cause of the Earl of Strafford.
The other Articles prove the first, by his Opinions, Certificates, Judgments, by his Denials of the Benefits of our Laws, which have been read to your Lordships. No Fundamental Law to the Subject is left, our Goods, our Lands, our Bodies, the Peace of a good Conscience, are by him given up to Arbitrary, Tyrannical Government.
Nothing hath been omitted to make a Judge know the Laws, to make him Just, or scare him from being Evil: We have Inns-of-Court for that peculiar Study; Judges from thence only chosen; seldom any but what have been twenty Years there; Honours and Revenues are given to Judges, Encouragements to do well; this Judge hath these: Judges are Sworn according to Law to serve the King and his People; according to Law to counsel the King; and for not doing so, to be at his Will for Body, Lands, and Goods: This Judge took that Oath. The Law which the Judges study, imposes the greatest Punishments on unjust Judges, and shews that these Punishments have been inflicted. More could not be done to perswade or awe a Judge.
His Offences shew in him great Ambition; yet he was most timorous of displeasing the Great in Power: He did not forbear doing what he was sworn to do, but was most active against our Laws, and in opposing and punishing any that did maintain them.
To have only received Bribes (though they blind the Eyes, and though the Desire to get Money encreaseth with Age) that heinous Crime in a Judge had been, in Comparison with his Offences, as a tolerable Vice; for from such a Judge, Justice is also to be had for Money. Ambition is violent, and ruins, whilst Covetousness is making a Bargain.
The Words of his Opinions and Judgments, are for the King's Power. It is pleasing to the Nature of Man, that others should obey his Will; and well framed Dispositions of Princes, may easily be perswaded their Power is unlimited, when they are also put in mind, that therefore they have more Cause to do well, and for doing well are more renowned; for the most oppressive Designs, (which we have suffered under) the Pretences to his Majesty have ever been the Good of his Subjects: His is the Sin, that is to judge by the Laws, and knows the Laws are to the contrary, yet puts and confirms such Thoughts in his Prince.
The Writs, those Monsters of Necessity to provide Ships to prevent imminent Dangers, that could not stay Forty Days for the calling of a Parliament, were therefore to go out in September, to have Ships ready in March. This hath been adjudged by your Lordships to be destructive to the Fundamental Laws of this Realm, and to the Subjects Right of Property and Liberty, &c. That I shall say but this concerning them, that this Judge published them to be inseparable Flowers of the Crown: And that we have lived to see, for Five Years together, Imminent Danger, and thus to be prevented.
This Judge did advise to such a Government, as future Kings here might exercise the highest Tyrannies, and the Subjects want the Benefit of Restraints, known to the most slavish Eastern Nations; where, if their Prince does unjustly, he hath Hatred for it, and the Dangers that follow that. This Judge will have that Hatred to go to our good Laws. No such Bondage, as when Laws of Freedom are misinterpreted by Judges to make Men Slaves.
What can be considered of in a Judge of Law to give his Opinion and Advice to his Prince, how the Laws, the mutual Covenants of Kings and Subjects are to be broken; but that his Intentions are to have his Prince do ill, by making his Evil Servants to study, and to be pleased with their wicked Designs: because they see no Means to put them in Execution, by making them to perswade their Prince, because in imminent Danger his Subjects Goods are at his Will, that there is such Danger, when there is not; and they only have some By-end of their own.
A Judge to deliver his Opinion. That if the King should intend to give up his People to be destroyed by Foreign Forces, for the Safety of the People in that Imminent Danger, one, by the Law, might take away the King; there could be no greater Offence.
This Judge will have our Law to be what to him seems Reason; the Reason limited to him to judge of, is what the Common Law saith is so, what a Statute hath so enacted, for him to judge this or that is Law, else a Mischief shall follow; but because the Law in such a Thing is imperfect, therefore he will make a Law to supply it; or because the Law written in such Particulars is against his Reason, therefore his Reasons to be Laws; then must follow as often as a Judge's Reason changes, or Judges change, our Laws change also.
Our Liberties are in our Laws, where a Subject may read, or hear read, this is his, this he may do and be safe; and thus the Judge ought to give Judgment, he is free. The excessive Growth of the Coarts of Reason and Conscience, came from great and cunning Persons, and though not the most sudden, yet the most dangerous and sure Ways to eat out our Laws, our Liberties.
Unlimited Power must be in some to make and repeal Laws to fit the Despositions of Times and Persons. Nature placeth this in common Consent only, and where all cannot conveniently meet, instructeth them to give their Consents to some they know or believe so well of as to be bound to what they agree on. His Majesty, your Lordships, and the Commons, are thus met in Parliament, and so long as we are often reduced to this main Foundation, our King and we shall prosper.
This Judge will not allow us our Knowledge, or any Reason: He will have our Minds, our Souls Slaves: A Grand-Jary-Man gave his Fellows true Information, they present an Innovation in the Church, and are threatned and reviled for it; he that told this Truth is charged (I shall use this Judge's own Words) to sin in that, and that he made others forswear themselves; this Judge sent him to the Common Goal, where he is laid in Irons; and all this, because he and they durst meddle with Church-Matters; he is forced to tear the Presentment in Pieces in open Court. Our Lawa provide for the Peace of our Consciences, many Acts of Parliament there are for it, and the Trust by those Acts set to Juries: This Judge knew well all this; your Lordships have heard what he did to the Jury at Hertford: He would have us know no more Divinity, than to obey what the Great Men of the Clergy directed; no more Law than what he said was so.
Judges in former Times, (but only such as were Examples of Punishment, as well as of Injustice) in Cases of great and publick Concernment, used to forbear Proceedings, till the next Parliament. This necessitated the calling of Parliaments; this Judge had as many such Causes before him, as ever any had; yet he never desired the Resolution of Parliament in any one; for the Ways he went, the Necessity, was never to have a Parliament; he would pull up that Root of our Safeties and Liberties, which whilst we enjoy, the Malice or Injustice of all other Courts and Persons can never ruin us, (as most near of late) this only sure Remedy will help us, nothing can ruin a Parliament but it self.
This Judge assisted in causing the Miseries we suffered in the Star-Chamber, and at the Council-Table, he denied the known Rights which he ought to have granted us to stop our Grievances in the Ecclesiastical Courts: He was the Causer of our Sufferings in other Courts.
The best Lovers of their Laws and Liberties; the most honest suffer most by an unjust Judge; they most oppose his Vices: Dishonest Persons find such a Judge to fit their Purposes, the Judge finds them for his, the Bond of Iniquity consederates them.
He that will do no Wrong, will suffer none which he can help: The Man that knows himself to be born free, will do his utmost to live so, and to leave Freedom to his Posterity; were he in Slavery, when by outward Gesture thought to be most delighted, were his Mind then known, there would be found Vexation, and his busie Thoughts employed to redeem himself and Posterity from Thraldom. But to say, Could this Judge intend to make himself and his own Posterity Slaves ? What he did was through Error of Judgment only: No, my Lords, what his Aims and Endeavours were, is apparent. To consider Man in the General, we shall find in every Age, he will be a Slave to some few, that many may be Slaves to him, he looks to himself only; this he would do or forbear doing, to be Great, or to be Rich, had he Children, or Kindred, or had he none. This highly unjust Judge, by continuing Sins, maintained his Actions to preserve himself; he knows should he be found guilty in one of his Offences, the Penalty of the Law for it, therefore covers the Offences committed with inventing and acting others.
For a Judge to be unjust, more hurts the Publick than any other: He is not suspected. What a Jadge doth is looked on as a Thing that might, that ought to be done. The most pernicious Great Man, that by Cunning hath got to himself the Heart and Tongue of his Prince, his ill Acts have died with him, if not taken up by others, and then they walk in Darkness; no Man will justifie what he doth, by saying such a Favourite did it: But the unjust Judgments of this Judge were given in the Noon Day, were done in the Face of the whole Kingdom, in the hearing of such as might carry the News to all Parts of the Realm, and was therefore done: His unjust Judgments were our Records. We have seen wicked Grear Men most crafcily Politick, they hated our Laws, yet not meeting with active Judges, moulded to their Purposes, they and their Acts have died, the Realm flourished; but of late, others less Politick, meeting with most unjust Judges, every way as ill as they could with them to be; then did the Kingdom faint under the Load of its Misery, did long struggle; now it's rising I assure my self your Lordships will assist to take off the Burden.
If the Designs of some would not have such a Man at Liberty, a Warrant from some Lords of the Council, would soon have laid him in Prison, and given no Cause: Had he moved this Judge to be discharged or bailed, he could have obtained neither: If their Ways would not have endured that Man to live, a Judge reviling the Prisoner, and his Council that moved for his Discharge, or Bail, joined with the Hate of some Great Men, might soon have moved a Gaoler for unwholsome Rooms, and Lodging, and ill Diet for his Prisoner, and they may soon take Life away.
Offenders in Prisons are looked after to be safe; only such as are brought in by Power against Law, are abused. Had a Great Man desired the Estates of others, the Breach of a Proclamation might readily have been charged against them in the Star-Chamber: But they, it may be, could have answered and cleared themselves, and proved their Answers by Testimonies; had they been referred to this Judge, he would have expunged the one, suppressed the other: Then followed Fines to the value of their Estates, or more; then imprisonments of Course till they paid such Fines; your Lordships have heard what this Judge did to the Soap-boilers.
The Countryman followed the Plough, and his thinking he was assured of his Right of Property and Liberty, gave him Ability to do it: He believed his Neighbour, his Landlord, his King, could not take his Goods from him without his Consent. He knew the usual Payments by Law, and in extraordinary Causes thought to have that Care to choose such for his Knights of his Shire, or for his Burgesses, as might be mindful of the Cause of Payment, and of his Estate.
This Man hath heard the Opinions and Judgments of this Judge, hath seen his Goods taken from him, without his or his Knights of the Shire or Burgesses Consent or Advice. These have made him, his Wife and Children to join in Tears, to with they had never been born; they have made them think on many Ways to keep safe that Estate which was yet left them, have made them desire to sell all their Goods, and hide the Money: But then he remembers this Judge, how he shall be carried to Prison, and remain there if he pay not what it pleases others to assess him. Then they think idle Persons (the Drones and Moths of the Commonwealth) to be a wife People, whom they formerly conceited to be unworthy to Live. They expect, and can think of nothing but to be Beggars.
Where publick and enormous Offences have been committed, eminent and notorious Punishments must be, such will make your Lordships Proceedings highly esteemed, else there will be so many Offenders, as none without Danger can be punished.
This Judge, subverting our Laws, took away the Hearts of many; he subscribed for the King's Power, but so as he put him on taking his Subjects Goods; and of all other, such Ways be most dangerous; for we know his Majesty is not the last that suffers; and is not the King worth many Thousands?
The Place of this Judge was, to have given and preserved to the King the Hearts of his Subjects; the due Execution of the Laws had done this; and when such notice is taken of a Prince, none will conspire against him, who cannot seign to themselves Safety before or after any Fact committed; Foreign Enemies will not invade his Kingdoms.
I am, by Command of the House of Commons, to desire of your Lordships, that the Proceedings against Sir Robert Berkley, Knight, one of the Justices of his Majesty's Court of King's-Bench, may be put in as speedy a Way of Trial, as the Course of Parliament will allow.
Mr. Waller's Speech in Parliament at a Conference of both Houses in the Painted-Chamber, upon delivering the Impeachment against Mr. Justice Crawley.
I am commanded by the House of Commons, to present you with these Articles against Mr. Justice Crawley; which when your Lordships shall have been pleased to hear read, I shall take leave, according to Custom, to say something of what I have collected from the Sense of that House, concerning the Crimes therein contained.
Articles of the House of Commons, in the Name of themselves and of all the Commons of England, against Sir Francis Crawley, Knight, one of the Justices of his Majesty's Court of Common-Pleas, impeaching him as follweth:
- I. That he, about the Month of November, Anno Domini 1635; then being one of the Justices of the Court of Common-Pleas, and having taken an Oath for the due Administration of Justice to his Majesty's Liege People, according to the Laws and Statutes of this Realm, subscribed an Opinion, in haec verba. [I am of Opinion, &c. as above mentioned.]
- II. That he, in or about the Month of February, Anno Domini 1636; then being one of the Justices of the said Court of Common-Pleas, subscribed an extrajudicial Opinion, in Answer to Questions in a Letter from his Majesty, in haec verba. [As before in Berkley's Charge.]
- III. That he being then one of the Justices of the said Court of Common-Pleas, delivered an Opinion in the Exchequer-Chamber against John Hampden, Esq; in the Case of Ship-Money, that he the said John Hampden upon the matter and substance of the Case, was chargeable with the Money then in question, a Copy of which Proceedings and Judgment, the Commons of this present Parliament have already delivered to your Lordships.
- IV. That he being then one of the Justices of the said Court of Common-Pieas, declared and published in the Exchequer-Chamber, and the Western Circuit where he went Judge, That the King's Right to Ship-Money was so inherent a Right in the Crown, as an Act of Parliament could not take it away: And with divers malicious Speeches inveighed against, threatened and discountenanced such as refused to pay Ship-Money. All which Opinions and Judgments, contained in the first, second, and third Articles, are destructive to the Fundamental Laws of this Realm, the Subjects Right of Property, and contrary to former Resolutions in Parliament, and to the Petition of Right; which said Resolutions and Petition of Right were well known to him.
And the said Commons by Protestation, saving to themselves only the Liberties of exhibiting at any time hereafter, any other Accusation or Impeachment against the said Sir Francis Crawley, and also of replying to the Answer that he the said Sir Francis Crawley shall make unto the said Articles, or any of them, or of offering Proof of the Premises, or of any other of their Impeachments or Accusations that shall be exhibited by them, as the Case shall (according to the course of Parliaments) require, do pray that the said Sir Francis Crawley, one of the Justices of the said Court of Common-Pleas, may be put to answer to all and every the Premises; and that such Proceedings, Examinations, Tryals, and Judgments, may be upon every one of them had and used, as is agreeable to Law and Justice.
Not only my Wants, but my Affections render me less fit for this Employment: For though it has not been my Happiness to have the Law a part of my Breeding, there is no Man honours that Profession more, nor has a greater Reverence towards the grave Judges, the Oracles thereof: out of Parliament all out Courts of Justice are governed or directed by them; and when a Parliament is called, if your Lordships were not assisted by them, and the House of Commons by other Gentlemen of that Robe, Experience tells us, it might run a hazard of being stiled Parliamentum Indoctorum. But as all Professions are obnoxious to the Malice of the Professors, and by them most easily betrayed; so, My Lords, these Articles have told you how these Brothers of the Coif are become Fratres in malo; how these Sons of the Law have torn out the Bowels of their Mother: But this Judge (whose Charge you last heard) in one Expression of his, excels no less his Fellows, than they have done the worst of their Predecessors, in this Conspiracy against the Commonwealth.
Of the Judgment for Ship-Money, and those extrajudicial Opinions preceding the same (wherein they are jointly concerned) you have already heard; how unjust and pernicious a Proceeding that was in so publick a Cause has been sufficiently expressed to your Lordships: But this Man, adding Despair to our Misery, tells us from the Bench, That Ship-Money was a Right so inherent in the Crown, that it would not be in the Power of an Act of Parliament to take it away. Herein, my Lords, he did not only give as deep a Wound to the Commonwealth as any of the rest, but dipped his Dart in such a Poison, that so far as in him lay, it might never receive a Cure. As by those abortive Opinions subscribing to the Subversion of our Property, before he heard what could be said for it, he prevented his own; so by this Declaration of his, he endeavours to prevent the Judgment of your Lordships too, and to confine the Power of a Parliament, the only place where this Mischief might be redress'd. Sure he is more wise and learned, than to believe himself in this Opinion, or not to know how ridiculous it would appear to a Parliament, and how dangerous to himself; and therefore no doubt, but by saying no Parliament could abolish this Judgment, his meaning was, that this Judgment had abolished Parliaments.
This Imposition of Ship-Money, springing from a pretended Necessity, was it not enough that it was now grown Annual, but he must entail it upon the State for ever, at once making Necessity inherent to the Crown, and Slavery to the Subject? Necessity, which dissolving all Law, is so much more prejudicial to His Majesty than to any of us, by how much the Law has invested his Royal State with a greater Power and ampler Fortune; for so undoubted a Truth it has ever been, that Kings as well as Subjects are involved in the Confusion which Necessity produces, that the Heathens thought their Gods also obliged by the same; Pareamus necessitati quam nec homines, nec dii superant: This Judge then having in his Charge at the Assize, declared the Dissolution of the Law, by this supposed Necessity, with what Conscience could he at the same Assize proceed to condemn and punish Men; unless perhaps he meant, the Law was still in force for our Destruction, and not for our Preservation; that it should have Power to kill, but none to protect us; a thing no less horrid, than if the Sun should burn without lighting us; or the Earth serve only to bury, and not to feed and nourish us. But, my Lords, to demonstrate that this was a suppositious and imposed Necessity, and such as they could have removed when they pleased; at the last Convention in Parliament, a Price was set upon it, For twelve Subsidies you shall reverse this Sentence: It may be said that so much Money would have removed the present Necessity; but here was a Rate set upon future Necessity, For twelve Subsidies you shall never suffer Necessity again; you shall for ever abolish that Judgment: Here this Mystery is revealed, this Vizor of Necessity is pull'd off; and now it appears, that this Parliament of Judges had very frankly and bountifully presented his Majesty with Twelve Subsidies to be levied on your Lordships and the Commons: Certainly there is no Priviledge which more properly belongs to a Parliament, than to open the Purse of the Subject: And yet these Judges, who are neither capable of sitting among us in the House of Commons, nor with your Lordships, otherwise than as your Assistants, have not only assumed to themselves this Priviledge of Parliament, but presumed at once to make a Present to the Crown of all that either your Lordships or the Commons of England do, or shall hereafter possess.
And because this Man has had the boldness to put the Power of Parliament in balance with the Opinion of the Judges, I shall entreat your Lordships to observe, by way of Comparison, the solemn and safe Proceeding of the one, with the precipitate Dispatch of the other. In Parliament (as your Lordships know well) no new Law can pass, or old be abrogated, till it has been thrice read with your Lordships, thrice in the Commons House, and then it receives the Royal Assent: So that it is like Gold seven times purified: whereas these Judges by this one Resolution of theirs, would perswade his Majesty, that by naming Necessity, he might at once dissolve (at least suspend) the Great Charter, (two and thirty times confirm'd by his Royal Progenitors) the Petition of Right, and all other Laws, provided for the Maintenance of the Right and Propriety of the Subject: A strange force, my Lords, in the sound of this Word Necessity ! that, like a Charm, it should silence the Laws, while we are despoiled of all we have; for that but a part of our Goods was taken, is owing to the Grace and Goodness of the King; for so much as concerns these Judges, we have no more left, than they perhaps may deserve to have, when your Lordships shall have passed Judgment upon them. This for the neglect of their Oaths, and betraying that publick Trust, which for the Conservation of our Laws was reposed in them.
Now for the Cruelty and Unmercifulnes of this Judgment, you may please to remember that in the old Law, they were forbid to seethe a Kid in his Mother's Milk; of which the received Interpretation is, That we should not use that to the Destruction of any Creature which was intended for its Preservation: Now, my Lords, God and Nature has given us the Sea as our best Guard against our Enemies, and our Ships are as our greatest Glory above other Nations; and how barbarously would these Men have let in the Sea upon us, at once to wash away our Liberties, and to over-whelm, if not our Land, yet, at least, all the Propriety we have therein; making the Supply of our Navy, a pretence for the Ruine of our Nation? For observe, I beseech you, the Fruit and Consequence of this Judgment, how this Money has prosper'd, how contrary an Effect it has had to the End for which they pretended to take it: On every County a Ship is annually imposed; and who would not expect, but our Seas by this time should be covered with the Number of our Ships? Alas! my Lords, the daily Complaints of the decay of our Navy, tell us how ill Ship-Money has maintain'd the Sovereignty of the Sea; and by the many Petitions which we receive from the Wives of those miserable Captives at Algier (being between Four and Five thousand of our Country-men) it does too evidently appear, That to make us Slaves at home, is not the way to keep us from being made Slaves abroad; so far has this Judgment been from relieving the present, or preventing the future Necessity; that as it changed our real Propriety into the Shadow of a Propriety; so of a feigned, it has made a real Necessity.
A little before the approach of the Gauls to Rome, while the Romans had no apprehension of that Danger, there was heard a Voice in the Air, louder than ordinary, The Gauls are come. Which Voice, after they had sack'd the City and besieged the Capitol, was held so Ominous, that Livy relates it as a Prodigy. This Anticipation of Necessity seems to have been no less Ominous to us; these Judges, like ill-boding Birds, have call'd Necessity upon the State, in a time when, I dare say, they thought themselves in greatest Security: but if it seems Superstitious to take this as an Omen, sure I am, we may look on it as a Cause of the unfeigned Necessity we now suffer: For what Regret and Discontent had this Judgment bred among us? And as when the Noise and Tumult in a private House grows so loud, as to be heard into the Streets, it calls in the next Dwellers, either Kindly to appease, or to make their own use of the Domestick Strife; so, in all likelihood, our known Discontents at home have been a concurrent Cause to invite our Neighbours to visit us, so much to the Expence and Trouble of both these Kingdoms.
And here, my Lords, I cannot but take notice of the most sad Effect of this Oppression, the ill Influence it has had upon the ancient Reputation and Valour of the English Nation. No wonder, if it be true, that Oppression makes a wise Man mad, it may well suspend the Courage of the Valiant. The same happened to the Romans, when for Renown in Arms they most excell'd the rest of the World; the Story is but short: 'Twas in the Times of the Decem-viri; (and I think the chief Troublers of our State may make up that Number.) The Decem-viri had subverted the Laws, suspended the Court of Justice; and (which was the greatest Grievance both to the Nobility and People) had for some Years omitted to assemble the Senate, which was their Parliament: This, says the Historian, did not only deject the Romans, and make them despair of their Liberty, but caused them to be less valued by their Neighbours: The Sabines take the Advantage and invade them, and now the Decem-viri are forc'd to call the long desired Senate; whereof the People were so glad, that Hostibus Belloque gratiam habuerunt. This Assembly breaks up in Discontent; nevertheless the War proceeds; Forces are raised, led by some of the Decem-viri, and with the Sabines they meet in the Field. I know your Lordships expect the Event: My Author's Words of his Country-men, are these, Ne quid ductu out auspicio Decem-virorum prospere gereretur, vinci se patiebantur. They chose rather to suffer a present Diminution of their Honour, than by Victory to confirm the Tyranny of their new Masters: At their Return from this unfortunate Expedition, after some Distempers and Expostulations of the People, another senate, that is, a Second Parliament is call'd, and there the Decem-viri are questioned, deprived of their Authority, imprisoned, banish'd, and some lose their Lives; and soon after this Vindication of their Liberties, the Romans, by their better Success, made it appear to the World, That Liberty and Courage dwell always in the same Breast, and are never to be divorced.
No doubt, my Lord, but your Justice shall have the like Effect upon this dispirited People: 'Tis not the Restitution of our ancient Laws alone, but the Restauration of our ancient Courage, which is expected from your Lordships. I need not say, to move your just Indignation, that this Man should so cheaply give away that which your noble Ancestors, with so much Courage and Industry, had so long maintained; you have often been told how careful they were, though with the Hazard of their Lives and Fortunes, to derive those Rights and Liberties as entire to Posterity, as they received them from their Fathers; what they did with Labour, you may do with Ease; what they did with Danger, you may do securely; the Foundation of our Laws is not shaken with the Engine of War, they are only blasted with the Breath of these Men, and by your Breath may be restored.
What Judgments your Predecessors have given, and what Punishments their Predecessors have suffered for Offences of this Nature, your Lordships have already been so well informed, that I shall not trouble you with a Repetition of those Precedents. Only, my Lords, something I shall take leave to observe of the Person with whose Charge I have presented you, that you may the less doubt of the wilfulness of his Offence.
His Education in the Inns of Court, his costant Practice as a Counsellor, and his Experience as a Judge (considered with the Mischief he has done) makes it appear that this Progress of his through the Law, has been like that of a diligent Spie through a Country, into which he meant to conduct an Enemy.
To let you see he did not offend for Company, there is one Crime so peculiar to himself, and of such Malignity, that it makes him at once uncapable of your Lordship's Favour, and his own Subsistence; incompatible with the Right and Propriety of the Subject: For if you leave him in a Capacity of interpreting the Laws, he has not already declared his Opinion, That your Votes and Resolutions against Ship-Money are void, and that it is not in the Power of a Parliament to abolish that Judgment.
Rode, caper, vitem, tamen hinc cum stabis ad aras
In tua quod fundi cornua possit, erit.
He had cropt and infring'd the Priviledges of a banished Parliament; but now it is returned, he may find it has Power enough to make a Sacrifice of him, to the better Establishment of our Laws; and in Truth what other Satisfaction can he make his injur'd Country, than to confirm by his Example those Rights and Liberties which he had ruin'd by his Opinion ?
For the Proofs, my Lords, they are so manifest, that they will give you little trouble in the Disquisition: His Crimes are already upon Record, the Delinquent and the Witness is the same; having from several Seats of Judicature proclaim'd himself an Enemy to our Laws and Nation: Ex ore suo judicabitur. To which Purpose, I am commanded by the Knights, Citizens, and Burgesses of the House of Commons, to desire your Lordships, that as speedy a Proceeding may be had against Mr. Justice Crawley, as the Course of Parliaments will permit.