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^ 



COMPLETE*COL LECTION 



State Trials 

AND 

PROCEEDINGS FOR HIGH TREASON AND OTHER 
CRIMES AND MISDEMEANORS 

noM THS 

EARLIEST PERIOD TO THE YEAR 1783, . 

I 

WITH JfOTES AXD OTHER ILLVSTRATlOtTS : 

COUPILSD BT 

T. B. HOWELL, Esq. RR.S. F.S.A. 

INCLUDIMO, 
nr ADDITIOH TO THZ WHOLK OF THE If ATTBB COKTAIRED IS THE 

roiIO EDITION OF BARORAVE, 

rPWAKDB Of TWO HDKDBBD CASES NEVBB BltFOBB COLLECTED; 
TO WHICH IS SUBJOIKIS 

A Table of Parallel Rsfsrescb, 

KIltSKRIirG THIS EDITIOK APPLICABLE TO TBOSE BOOKS OT AUTHOBITY IK 
WHICH BSPBHENCES ARB MADE TO THE POLIO 1 



IN TWENTY-ONE VOLUMES. 

VOL. m, 

3—16 CHARLES 1 1627—1640. 



LONDON: 

JVMuI hy T. C. Award, Ptteticmtgh-Caitrt, Fttel-Stna : 
JOE LONGMAN, HURST, REES, ORME, *»d BROWN ; J. M. RICHARDSON 
BLACK, PABBURY, add ALLEN; BALDWIN, CRADOCK, akd JOY 
E. JEFFERY; J. HATCHARD; R. H. EVANS j J. BOOKER; E. LLOYD 
J. ^pCrni^.BUDD AXo CALKIN; AND T. C. HANSARD. 
' ' 1816. 

,ji,..c:,yGoogle 



UBRARY OF THE 
LELAND STANFORD JR. UNIVERSITY. 

'" ■ 27 ;900 



,1,1.1, Google 



TABLE OF CONTENTS 



VOLUME III. . 



STATE TRIALS IN THE HEIGN OF 

KING CHALES THE FIRST, 

A. D. I6ia7— 1640. 

*,* 75e Wiu MaiUr it nmked [N.] 



137. Proceedings on the Habus Cobpus, bronght by sir Thomas Damel, 

Sir John C(ffb«t, Sir Walter Earl, Sir John HereniDgbam. and Sir Ed- 
mund Hampden, a. d. 1627: Togetherwith the Proceeding! in Parlia- 
ment, relating to the Libott or the Svbjbct, a. d. 1628 and 1629 - 1 

138. Caae of Walter Lova, esq. Sheriff o^iWilti, and one of the Borgeues for 

Bath, for absenting himielf from hta Bailiwick to attend hii Duty in 
Parliament, 1629 [N.] 234 

139. Proceeding! sgaiott Wiu-tah Stkoud, esq. Walter Long, esq. John 

S£LDBN, esq. and Others, on an Habeas Corpus, in Banco Regis, 1630 233 

ISO. Proceedings against Sit Johh Elliot, Deneil Hollii, esq. and Benjamin 

Valentine, esq. for seditious Speeches in Parliament, 1629 - - SO* 

in. Proceedings against Soobr Manivakinc, D. D. for preaching and pub> 
liahing two Sermons, maintaining Doctrines tending to the Subver- 
■i<»i of the Laws and Liberties of the Kingdom, I62t [N.] - • SSt 

193. The Case of Hugh Pine, esq. upon an Accusation of Treason, for Words 

8p<riMn in Contempt of the King, 1623 [N.] - - - ■ - 359 

ISi. Proceedings against Jobm Feltom, tor th« Murder of the Duke of Bvck- 

in^am, 1628 [N.] - - 307 



D;j,i,:«,.,yGoogli: 



TABLE OF CONTENTS. 

Pagt 

134. Froceedingt agaiiut Mr. Richabo Ciumbsss, in the Sttr-ChBinber, for 

■cditioua ^ecbei before the Privy-Cooncil, 1629 - - - - 37* 

135. Proceeding! in the StaT*Cfaaraber sgaiott Dr. ALEUMin Leigbton, for 

a Libel, 1630 - - ^ - - SS3 

. 136. Proceedings in the Stu-Chamber agaioit tbeSari of BsDroRD, the Eari 
of Clare, the Earl of Sombuet, Sir &oi«bt Cotton, John Sbldeh, 
esq. Oliver St. John, esq. and Othen, for publishing a seditious and 
scandalous Writing, 1S30 ---,-.-- 5S7 

137. The Trial of Mbetdi Lord Ausltt, Earl rf CaitlbSavsii, for a Rape ttitd 

Sodomy, 1631 402 

13d. The Trial of Lawrence Fitz-fatbick aod Giles Bkoadwat, two Serranta 
of the before- Kientioned Lord Audlby, Earl of CastlehaTCn. at the 
King's-Bench, for a Rape and Sodomy, 1631 - - - - ' - 419 

139. The Trial of Jambs Lord Uchiltrie, for Calumnies and dandemui 

Speeches against James Marqqis of Haraihon, aniL the Earls of Had- 
dington, Roxburgh, and Buccteugh ; tending to the sowing of Sedition 
' betwixt his Mijesty and the said Noblemen ; at Edinburgh, 163 1 - 43<t 

140. Proceedings in the Court of Chiralry, on an Appeal of High Treason : 

by Donald Lord Rea, against Mr. David Ramsey, 1631 - - - 483 

141. Proceedings in the Star- Chamber agunst Henky Shebfikld, esq. Re- 

corder of Salisbury, for breaking a painted Glass-Window in the 
ChuTchof St. Edmonds in the said City, 1632 - • • - 510 

Hi. Proceedings against Wm. Prynn, esq. in the Star-Chamberi for writing 
and publishing a Book intitled, " Histrio-mastix, or a Scourge for 
" Stage-Players," &c. and also against Michael Sfarkes, for print- 
ing, and against William Buckneb, for licensing the said Book, 1632-3 562 

143. Proceedings in the Star-Cbamber against Sir Davis Fowlis, Sir Thomas^ 

LaYTon, and Henry Fowlis, esq. on a Charge of opposing the King's 
Serricc, and traducing his Officers of State, 1633 .... J8G 

144. The Trial of JoUn Lord Balherino, in Scotland, for a Libel, 1634 - 591 

-.145. Proceedings in the Star-Chamber against Dr. John BASTtncK* Mr. 

Hbnby Burton, and William Prvhn, esq. for several libels, 16S7 - *1 1 

146. Proceedings in th<! Star-Chamber against Dr. John Williams, Bishop of 
Lincoln, for publishing false News and Tales to the Scandal of' his 
Majesty's Government; for revealing Counsels of State contrary to 
fais Oath of a Mvy ConoMOor ; and Sk tamperiflg with the King's 
Witoesses, 1637 [Ni] - - ■ . . -'. - - - 770 



;.,yGoOglc 



TABLE OF CONTENTS. 

Page 
147. ProceeAi^ in Uk Case vS Sbip-Homby, between tke Kixo sud John 

Hamfdsn, eiq. in the Ezcheqaer, 1637 --•-.. 820 

The First Writ for Ship Money - 830 

The King'sJ^tter to the Jodges ...... g42 

The Answer of ^e Judges ....... g^ 

The King, vermu John Hampden, in the Caae of Ship Money . 846 

The Fim Day's Argument of Mr. St. John, on behalf of Mr. 

Hampden, before all the Judges in the Exchequer Chamber - 850 
The Second Day's Argument of Mr. St. John .... gog 
The First Day's Argument of Sir Edward Littleton, knt. his 

Majesty's Solicitor General, on behalf of his Majesty . . Q23 

HieSecondDay's Argument of Sir Edward Uttleton ... g30 
The Hitfd pay's Argument of Sir Edward Uttleton - - - 952 
The First Day's Argument of Mr. Holbome on behalf Mr. Hampden 063 
The Second Day's Argument of Mr. Holbome - - - - 1)76 
The Third Day's Argument of Mr. Holborne - . ' . . . 989 
The Fourth Day's Argument of Mr. Holb<Hiie .... loOO 
The First Day's Argument of Sir John Banks, knt. his Majesty's 

Attorney General, on behalf of his Majesty .... joii 
The Second Day's Argument of Sir John Builu .... ioS2 
Tlie Third Day's Argument of Sir John Banks .... io51 
. The Argument of Sir Francis Weston, one of the Barons of the 

Exchequer . ^ ------. . io6i 

Tlie Argument of Sir Edward Crawley, knt. one of the Justices of 

ihe Court of Common Pleas - - -. - - - . . I07t> 
The Argament of Sir Robert Berkley, one of the Justice's of the 

Court of King's Bench 1037 

The Opinion of Sir George Vemon, one of the Justices of the Court 

of Common Pleas ........ ]I25 

A few Notes of the Argument of Sir Thomas Trevor, one of the 

Barons of the Court of Exchequer - - - - - - 1125 

The Argument of Sir George Crooke, one of the Justices of the 

Court of King's Bench - - - - - - --1127 

The Argument of Sir George Crooke, as it was presented to the 

King U40 

The Argument of Sir William JoaeSf one of the Justices of the 

Court of King's Bench - - • - - - - -1181 
The Argument of Sir Richard Hutton, one of the Justices of the 

Court of Common Pleas ' . 1191 

Ihe Opinion of Sr John Denham, one of the Barons of the 

Exchequer .......... 1201 

Google 



TABLE Ot CONTENTS. 

'He Argument of Sir Humphry DxTenport, Lord Chief Baron 
of the Exchequer - - -- ... . . 1202 

Tlie Argument of Sir John Finch, Lord Chief Juitice of the Court 
of Common Pleas - .._-... ijit 

The Argument of Sir John Brampston, Lord Chief Justice of the 
Court of King's Bench 124S 

Copy of the Order as it was drawn upon the Motion of Mr. Attor- 
ney General - - - - - - • - -1251 

Copy of the Judgment, as it is entered upon record - - - 1252 

Proceedings in Parliament thereon ------ 1254 

Impeachment of Sir Robert Berkley, and the other Judges who 
gare their Opinions in the Case of Ship Money ... 1293 

148. The Trial of John Lilburn and John Whakton, for Printing and Pub- 
lishing Seditious Books. IntheStar-Cbamber, 1637 - - - - UlS 

U9. The Trial of Thomas Habrison, Clerk, at the King's-Bencb, for a Misde- 
meanor in speaking reflecting Words of Judge Hutton, 1 6S8 - - 1370 

Another Account of the above Trial from Tanner's mss. in the 
Bodleian Library [N.] 1378 

150. The Trial of Thomas Earl of Stbaffoed, Lord Lieutenant of Ireland, for 

High Treason, 10*0 .- -1382 



COBBETTS 



COBBETT'S 
COMPLETE COLLECTION 

OP 

State Trials. 



127. Proceedings on the Habeas Corpus, brought by Sir Thomas 
Darnel, Sir John Corbet, Sir Walter Earl, Sir John Hesening- 
ham, and Sir Edmund Hampden, at the Kings-bench, in West- 
minster-hall ; 3 Charles I. A. D. l627 ; 'I'ogether with the 
Proceedings in Parliament^ relating to the Libertt of thk 
Subject; a. d. 1638 and 1629- 



7hE king bifiog deprived himteir of the proi- 
pect of kIT pariiameatar^ Aids, by disaoWing 
Ibe parlbmenc, and yei resolving to prosecute 
the war; il was necossaiy to project all pos- 
tiUe w*}9 and means of raising money ; Co 
vhich end JeUers were sent lo c)ie Lords Lieu- 
teoanttof the coumiei, Co retuni ibe names of 
the peraons of ability, and what sums tbey could 
ipare; and the CocnpCroIler of the king's 
Hooaebold issued furta letters \a che king's 
name, uader tbe privy leal, to lerenil peisona 
tdunied for the Loan-money; some were rs- 
w»ed 90t tome 15, and others lOl. and Com- 
miaionecs were appointed with private iiuCruc- 
tiDqs bow to bebave chemselves in this affair. 
Mid divers lords of Che council were nppoinccd 
10 repair into iheir counties to advance the 
Loan *. CollecCorg were also appointed CD pay 
mto the exchequer tlie sums receiveil, anil to 

" " Sir Randolf Crew ibevting no zeal for 
tbe advancement ofthe Loan was then removed 
from fail place of Lord C bier- Justice, snd sir 
Nicholas Hyde tuccreded in hii room: a per* 
son who, for his parts and abiiitjea, was (bought 
woithy of chat preferroent; yet neverchejeii 
came to the same wtih a prejudice, coming in 
tbe pUce af one so well-beloved and to sud- 
denly removed." 1 Ruahwortb, 420.— CrnLc 
(Cbariei) p. 5«. " Mem. upon Fridny the 10th 
of Nov. sir Raniioir Crew, Chief Justice of the 
Kii^a Bench, was diicliarged of that place, hy 
writ under the greaf seal, rar some cause of dis- 
pleasure conceited against faim; but for what, 
w«i not generally Lnowa," 

TdL. III. 



return the names of such as refused, or dis- 
covered a disposition to delny che payment of 
che aums impotcd. This assessiueiic of the 
general Lonn did not pass currently with the 
people, for divers persons refused to subscribe 
or lend at the rate proposed; the non-sub- 
icrHhen of high rank in all counties were bound 
over by recognitaiices to tender their appear- 
ance at tbe Council-board, and performed [ha 
same accordingly, and direra of themconunitted 
to prison: which caused great murmuring. 
But amongst chose many gentlemen who were 
imprisoned chrougbout England, for refusing 
to lend upon the Commission uf Loans, onlj 
five of them brought their IJabeas Corpus, viz. 
sir Thomas Darnel, sir John Corbet, sir Walter 
Earl, air John Heveninehain, and sir Edmund 
Htimpden. 

ARGUMENTS 
tn>ON THE HABEAS CORPUS. 
Sir TuoUAS Di.hnel his caie, Midi. 3 CaroU. 
Banco Regis. 
Sir Thomas Darnel, baronet, being imprison- 
ed in the Fleet, by virtue of a warrant signed 
by the Lintt's Aitorney General, upon il?e 3rd 
af November, bj Serjeant Brarmiion, (lis as- 
signed council, milTed ihejusticrsof the King's 
Bench lo graut him a Writ of Habeas Corpus 
cumcaaia ; directed to the Warden of the Fleet, 
CO shew that court the cau-e uf liis imprison- 
ment, that theteupoti they nilghc determine 
whether his restraint were legal or illegal; and 
il was granted hv the court returnable Xbundaj 
fbUowmg Che 8tb of November. 



3] STATE TRIA15, 3 Charles I. i627.~PrMeedh^onihe HabeaiCorpuir 



On Thursday, tir Thomai Daniel ei^ectcd 
Chnt t)i9 Writ should be returned, hut it was 
deliived ; and it was moved thut ihe relum 
should lie on Sntiii'day,jihe iOtb uf N«v%mb«r, 
1rhil^h made atr Tbi>ma9'ihe fnore wniM in 
saiiii; out an Alios u|>on liis Habeas Corpai. 

On Saturdnj the Writ whs not returned, and 



sir Tbomu DHrutl, relurnable upon Thursdaj 
mornioit the 15tli of Nov. ; by virtue of whicti 
Writ, ihe warden of the Fleet brings birTliomoi 
Darnel to the King's Bencli, and relurneth as 

follovreCli : 

Executio iitiat Brevifpactt tn^ua^iup K:keditla 
eiaf' huic brfof. 



Ttiei 






'EjioIIenricosLiloer 
< douiini regis de le Fh 
' regi certifico quod die'. ThopUB Darnel ba- 
' runet' detenlus est in prisuua prxdict' aub 
' custodia paep yirlufe cmusdarn . wHrrniiti duo- 
f zaia die pnvttto cousiliu' raibi direct), ciyiu 
' Ucor sequilgr in liis verbis, «il. 

' Wljcrea* he'etofore tlie bod;r of sir Thomas 
' Darnel luilli been committed (o jaur custody, 
' (Jipse axp to fMoire you siiU to cmttinue him ; 
' nnd to let you Elqoit tlj.it lie was and is com- 
' milted by the sjiecial command of bis ma- 
'jeslj, &c.' 
El htc- at cauia deUntionis pradiel' Thema 

Sen. Braattoa. M»y it please your lord- 
•hip, 1 did out expect this cauie at this time, 
neither did I hear of it until I came.iiow into 
the llaJI ; Bfid tlieretbre I ihall nav humbly 
•hew you whnt my disnt hath informed mc 
Itiice my cwninf hither. I uiidertund by bioi 
that he expected not hia couiingjo liiii place 
(O day; tlie Writ by t>hidi he was brought 
Igitlier was not moved for by him, but was pro- 
cured witliout his privity: and teeing his case 
f« so, and that he pcreeivet the cause of his. 
(KHning, which before he Loew oot, his motion 
to your lordship is, thut you would he pleased 
to let him have tb« cppy of the return, aitd 
uve him time to speuk unto it, and that this 
Writ being not sent out by his procurement, 
may not be hied. 

Attorney General Heath. My lords, it is 
true that this gentleman, sir Thomas Ehu-nel, 
being impoioned in tlie Fleet, did h^retafare 
move your lordships for a Habeas Corpus, &c. 
pnd it was granted bim : and his mBJ«a[y being 
piiadc aiujuaiuted thrreuith, wai very "^illuE 
that he and all his people niiflit have fQ^ 
justice ; , ^d when ihey clfsira that which 
•eeuu to accord with tlie rules of the Uw, the; 
should have it. But it fell out to, thqt un'thp 
inf wbeu the Writ should have been returued, 
tlie Warden of the Fleet did not return it, as 
it vias his duly (o have done ; he did fofhear 
to do it upoti a comqiaadaieiit, because it was 
. fonceived, Chen being live at tliat linre to' 
appear, the Court would hare been straitened 
fiir want of time : but I iinagiued that these 



gentlemen who did dceire the Writ before, 
should bare again been earnest to renew them, 
which it seems they did lyit. Thia Habeas 
£^rpits nat swt out by. Special command, be- 
cttuse (tese gentl«aien gave out in speeches, 
and in pSJ'ticular this gentleman. That tiie<f did 
wonder why they should be hindered fram 
Triari, aa^ what sbouf4 be die ceacofi their ' 
Writs were not retantedi nay, his majesty did 
tell me, that they reported that the kioi^did 
deny them the course of justice, and therefore 
he commanded me to renew thcWrii, which I 
did, and think I may do it ex officio. 

Sir Tbo. Darnel. My lords, I knew not 
until now, but that I was committed by Mr. 
Aiiarruy'i Wsivanc onljr, and thereupon I did 
desiiKH UabHS Corpu at the bar, which yuu 
were pleased to grant me ; but nuw I under- 
stand that my reotniint is by another meani, 
nnd therefore I shnll crave leave to have some 
lime to apeai to it. And as for the words 
nlled);ed against me, as if 1 had spoken them, 
J liumbly pray they may be no djsparaKemeDC 
to my cause, for 1 do patientiy refer myself to 
your grave censures, as being acciwcd of a bet 
whereof I^m no ways guilty. 

Ui/de (L. C. Justice.) Yiiu give a terrperata 
and lair answer ; and now you may perceive 
the uprij^t and sincere proceedings that have 
been in this business. You did no sooner 

[letitiun to have counsel assigaed you, but yon ■ 
lad it granted to yoa, for indeed we ceitnot 
dcnv itj and I tnow not but that any counsel 
might have moved for you, without having 
beeii assigned for you, and yet have had no 
blame; for it is the kmg's pleasure his laws 
shiiuld tnke place and be executed, and ibere- 
fure do we sit here. When you m(ide a, motion 
for a IlabeoiiCorpuii, that was likewise granted; 
Bliethcr tlie commitment be bv the king or 
otiiers, this Court is a place where the king 
doth sit in person, and we have power to eia- 
mine it; and if it appears, that any man halh 
iiljury or wrong by nil imprisonment, »b have 
pciwcr to deliver end dlsctiaiTe him ; if other- 
wise, he is to be remandetf by us to prison 
Bfiain. Wow it seems jou are not ready to 
speak to this return; irjou desire a further 
day, we ouuht to gnint it. 

&r T. liernel. Mylor^", Ibumhly desire it. 
L. C- J- 1 know no cause why it should b« 

Sen. BramloB. My lords, we shall deui« 
the Wi'it may not be Sled, and tliat we ma^ 
bare a copy of the return. 

All. Cea. ¥ou cnnnot deny t)ie filing of the 
Writ, if ypu deiire io havt a Bopy of the returq. 

Ji. C. j. Although you be remgnded at this 
time [o prison, because you are not ready 10 
spe^k to tlie return, »e c^n B4Jour|i ypu to a 
new d»y upon the Writ, and so you inajr pt*. 
Mn? yourself; but if you will not have tlifs 
Died, iheiti must go out a new Ilubeas Corpus, 
and tliereupoo niusi be another return. 

Scij. Bramtioa. My lord, we denre some 
time, that we may be advised nhetbei we niBl 
proceed or AOt, 



i] STATE TBIA13. 3 Chablbs I. ISai.-^ougla Ig Sr T. Dm-itel, mdoihert; [9 
L C. J. Wib joa MilMKk ^unatf to ihe 

^r r. Banul. My lord, [ desiro some time 
In adiise of mj procemliiip : [ ha'e moved 
Moj awa, ud ofered to retain lliein of my 
cmukI ; but they refute me, nDd I can get 
use to be of cowiaeL with me without yoiir 



■ what couutel os- 
lire ; fur do offence 

an that shall advi^ 



LC.J. You shall hai 
iptijoa will hitce or dt 
mil Im nken against any b 
fMiByour proceedings in law. 

All, Gen. I will pass my word, they that 
dfi idvise you, sboU beve no offence taken 
■piiM tbeta for it ; and I shall give coasont 
U id; way that you shall desire, eittwr tliut it 
n>jbe£lrd, ortliat it may not befiledi fur if 
TN liesire justice, you shaU hava it, and ibe 
tii; nilJ not deny it; but if it shall be con- 
ixmd, as it is rumoured, that there was a de- 
Dial si justice on the king's part, yiiu must 
bum that his majesty is very tender of that. 
Aid lot the gentleman, now be is brought 
hiber, i conceive, but yet I leave it to your 
lurdtliip'i judgment, that the writ tnust be filed, 
isd joa must cither deliver him, or pcinand 
iim, or else it will be an escape ia llie waixjea 
of tile Fleet. 

Sir T. DarMl. I would not have it tfaouf^ht 
dmlsboiild speak any thing BgaioM my prince, 
■wl Ibr llioie trords I do deny them ; fur upon 
Bj cwuctence tliey never came into my 
lliiiuglit: perhaps you shall liud that they have 
tecD spoken by some other, but not by imy 

LC.J. Sir, you have made a fair answer, 
■ad I doubt not but Mr. Aiteraey will make 
tbelita relation of it.; you mova for the not 
fliijof the Writ; if yuu refuse to have it 
ft^wbarebyit should not be of record, you 
naa hare do copy of it ;. Iiut if you will have 
il filed jou shall have b copy of it, and furtiier 
lime to speak to it; chuse whether of them 



Strj, Branutoa. We desira to have tbe 
ntnni read once more. 

And it was read as before. 

Strj. Bramtton. So at the writ may no 
fltd, we will desire no «^y of the return. 

L. C. J. Than the gentlemsa must return 
Ucka^iu into the casto<^ of the Warden of 
ibe Fleet j and therefore I aak you, whether 
yM desire to come hither ^gaio uptm tliis Writ,. 
N will jou have a new oi^e I 

Sir T. Darnel. I desire your lordship that 
Inay have time to coosiderof it. 

il C. J. Then in God's name take. your, 
tea tine to (bink of it. 

Mich. 3 Car. Regis, No*. 3S„163r. 

Sit John CoHHt, bert. sir Wattet Earl, 
*ta Heveninghani, sir EAnnott Hampden, 
Wghtl, were brought to the bar. 

&7. BraBmtan. tHaj it pletteyour lorddiip 
■tbear the return rntd, or slialll ofKDitr 

LCJ. Utitbvread, 



Keelitig. reeds the return, being tlic same 
as that ol' sir 'P. Darnel. 

Strj. Sraiatbrn. May it please your lord- 
ship, I shall bumhW move upiMk this ratunt in 
the behalf of tir John HeveniNglinin,withwbi}m 
I am of counsel ; it is his petitiun, that he may 
be bailed from bis impritoniiient : it was but in 
n kir me to move that to a court at' law, 
icbby law cannot be granted : and there- 
: in lh» regard, that upon this return it will 
be questioned, whether us tl lis return is made, 
the gentleomit may be bailed or not? 1 shall 
hutobly offer up to your lordship the case, and- 
e reasons out of mine understand me. arisiiig 
of the return itself, to satisfy yoor lordship 
that these prisanera may',, and, as tlieir case it, 
lusbt to be bailed by your lordship. 

The exi:eption that I take Oi this return, is a* 
veil to the matter and substance of tlia 
etuni,asto the lutmnErodd Segal form [bercDf: . 
he exception that 1 take [o the motter, is iit 
several reelects. 

That the return is too general, there is no 
eufficient cause shewn in special or in gm^ral 
of the commitment of this geatletnan-; and as 
it is iiisutticient for the cause, so also in the 
time of the first imprisonment : for howsoever 
here doib appear a time upon the second war- 
" from the lords of the council to detnio hinj 
in prison,! yet by the return no time can 
appear when he was first imprisoned^ tboogh it 
be neceUBiy it should be shewn; and if that' 
time appear not, there is no cause your lordship- 
Ebould remand' him ; and comequenily he is to 
bedelivered^ 

Touching the matter of the letunit whioli is . 
the cause of bisilnprisonnieoi, it isexpreMed 
to be' per fpeciale mnndDlUnf domini' regis:' 
this ia too geDeml and uncertain, for that it it 
not manifest what kind of command this was. 

Touching the lepel fbrm of the return, it is. 
not,' as it ought ti> lie, fully and'posiiiveiy thv 
return of tiie keeper himse'lf only, but; it comes- 
with a lignificamt, or praat, tlint he was com- 
mitted ■ per speciale niandaium domini leilit,' 
as appenreth by warrant from the lords of tba 
council, not of the king' himself ; and that lit 
not gnod in legal form. 

FoT.therantierandaulistance of- the return, 
good, because there ought to be • 



llhat the sulject haih in this and such-like case 
to obtain his liberty ; tliere are other Writs by' 
which teen are delivered from lestraint, as 
that De Homine Re^iUgiando, but extends not' 
to thia cause, for it is porticolarlv excepted in' ■ 
ibebody of ibe Writ De Manucnptione, et ds- 
.Caulione Adniittenda, but they- lie ia other 
cases: but the Writ uf Habeas Corpus is the- 
only means the subject hntb to obtain liil. 
liberty, and the end uf this Writ is to return 
the cause- of the inrprisonment, that it msy ba- 
eiamined in this court, whether the pertiM' 
oajht 10 bedischatged ornot ! but tbetoannoti 
ibedmie upon this return: for the cause of the' 
limpriMQment of this gentleaaa at bst.is to lar' 



STATE TRIAIS, 3 Ciiakl» L imT .—Proceedagi on the Habea* Corput, [§ 



from appcariDB jiarticularlT bj it, that there is 
no cBiue at afi eipress*U in K. — Thi* Writ re- 
qalres that the cnuM of the imprisonment 
■boulil be returned,' and if the cnoie be not tpc- 
cially ceriified by it, jet should it at the least 
be shewn in general, that it may nppear to the 
judges oi' the court; audit must be expressed 
so tar, ai (hat it ma^ appear tu be none ot 
those causea furnhich bf Isw of the Linzdam 
the subject mght not lo tie imprisoned ; and ii 
ought to be expressed that it was by prtient' 
taent or indictmeut, and nut upon petition or 
BUgeestion made to the king and lords, vhich is 
agamst the statute made in the 85 S.. S, c. 4. 
43 E. 3, c. 3. 

By the statute 35 E. S, c. 4. it is Ordained 
and established, ' That no man from hencelarib 
shall be taken b; petition or suggestion made 
to the kill); or hi» council, bat by indictment or 
course ot law;' and acconjinglyit nas enacted, 
4S E. a, c. S. the title of which statute is, 
' None ahull be pui to answer an accBsaiion 
made to the king wjibiut present meat.' Then, 
tny lord, it being so, althouEh (he caiue should 
. not need to be eipresied in such manner as 
that it mai spMar to be non« of these causes 
mentioueti Iti tne statute, or else the subject by 
this return toseth the benefit and aclvaniaEe of 
these laws, which be their birih-right and inhe- 
ritance; but in this return there is nn cause nt 
all appearing of the first commitment, and 
tfaerefore it ii plain, that there is no cause for 
yoar loriiship to remand him ; but there is cause 

JM should deliver him, since the writ ii to 
ring ifae body and the cause ofthi 
ineut before your lordship. 

-But it maybe objected, that this _._ _. 
H^.be IS Corpui dotfa not demand the cause of 
the dm coaimitment, but of the detaining onlj; 
and so tlic »rit is latiafied by the return ; ior 
thiiogh it shew no ciiuse of tiM first fMmniic- 
meiii, hut of delaining only, vet it declareth 
a cause why the gentleman is detained in pri- 
son 1 this is no answer, nor can give any salis- 
Actiun ; for the reason why the cause is to be 
returned, is for (he subject's liberty, that if it 
shall a)ipeara good and sufficient cause to yattr 



lord- 



lordship, then to be reraanded ; if your la 
■hip think and find it iasufficient, be is .to 

This ii the end of this writ, and this . 
^ipear to yuur lordship, unless the time of the 
finl cooiDiitment be expressed in the return. ' 
know thai in some cases the time is nut mat 
rial, as when the cause of the co^nmitmcnt 
(and that so especially) relumed, as that the 
tine is not material, it it enough to shew the 
cause wilhnut the time, as after a conviction or 
trial had by law ; but when it is in this manner, 
tliHt tbe time is the matii'r itself: for intend 
what cauw you will of tbe commitment, yea 
tbouich for tbe bigliest cause uf treason, there 
it no doubt but that upon tbe return thereof 
tbe tine of it must appear ; for it being before 
trial anil conviction had by law, it is but ao 
■ccusatioit, and be that u only accuKd might 
I7 law to be iM la baiL 



Hot I beseech jonr lordship to abs^rve the 
consequence of this cause.~ If tbe law be, that 
upon this return this gentleman should be re- 
manded, I will not ditpute whetheror no, a 
man may be imprisoned before he be convicted 
according to tlie law ; but if this return shall 
be good, then his imprisonroent shall not con- 
tinue on fbra time, but for ever; and the sub- 
jects of this kingdom may be restrained of (heir 
liberties perpetually, and by law there can be 
no remedy lor ibe subject : and therefore this 
retnrn cannot stand with tbe lawsof (he realm, 
or that of Magna Charta ; nor with the statute 
of 88 E. 3, c. 3. for if a man be not bailable 
upon this return, tber cannot have tbe benefit 
of these two laws, nhich arc the inheritance of 
the subject. — If your lordship shall think this 
to be a sufficient cause, thea it gueth to a pei^ 
peiual imprisonment of the subject: Ibr in all 
those CBuies " hich mWy concern the king's sub- 
jects, and are applicable to all times and cases, 
oe are not to reflect ujinn tbe present time and 

Eiremment, where justice and mercy flonett), 
lit we are to look what may betide us in the 
time to come, hereafter. 

It must be agreed 00 all sides, that the time 
of the first frommitment doth not appear in 
this return ; but by a latter warrant from the 
lords of the council, there is a time Indeed ex* 
pressed Ibr the continuing of him in prison, 
and that appears; but if this shall be a good 
cause to rentand these gentlemen to prison, they 
may lis there tliese seven yean longer, and se- 
ven years after theoi,/iay, all the days of their 
livas. And if they sue out a writ of Habeas 
Corpus, it is but making a new warrsiit, and 
they shall be remanded, and shall never have 
the advantage of tbe laws which are the best . 
inhtritance of everv subject. — And in E. 6, fol. 
S6, the laws are called die great ioberitance of 
Fiery Bul^ect, ahil tbe inheritance of inherily 
ances, without which inheritance we have no 
inheritance. These are the eiceptionj 1 desire 
to offer up to your lurdsiiip touching the He- 
turn, for the insufhcicncy of^llie cause returned, 
and the defect of the time af the first commit- 
ment, wliich should have been expressed. 

I will not labour in objections till they be 
made against me, in regard the Statute of 
Westminster primo is so frequent in every 
man's mouth, that at the common law those 
men that were commitled in four cases were 
not replevisable ; viz. thiise that were taken for 
the death of a man, or the commandment of 
the king, or his justices Ibr the forest. I 
shall speak something to it, thongh J intend 
not to spend much lime about it, fur it toucb- 
etb not this case we have in qurttion. 

For that is concerning a case of the common 
law, when m«i are taken by the king's writs, 
and not by word of mouth, and it shall be so 
expounded, as Mr. Stamford, fill. 73, yet it is 
nothing to [his case, for if fou will take ihe trna 
meaning of that statute, it, extendi not at all 
to this writ of Habeas Corpus ; for the words 
are plain ■ they shall be replsviiable by the 
wht/ thai is, by tlM writ ■ De bo- 



9} STATE TRIALS, S Chajile* I. 1627.— ftrongAl ty Srr T. Darnel, and others. [lO 
' niiw teple^Undo,' directed to the sheriff to 
dtlncr liwrn, if they were bniUble : but tbit 
CMC i> mtiove the ibertff, and he it not to b* 
judgt is it, whetlier lb* cidsu of ibe cummit- 
BWDt be Midicirat or not, m it appears in Fili- 
Berben, • De bomine rrple^iando,' and msiiT 
other {dare*, and not of tbe Terr words of llie 
Matcte tbis is clear, for there be many otbpr 
caoMs nmilioned, as the death of a niao, the 
eommudmentoftbejusuce.&c. in whicb tbe 
statute: smith, men are not replevisable. But 
will a man conceive that the meaning is, that 
ibey shall nut be bailed at all, hnt liie in per- 
jwllml im^riionmeut t I think I (hall not netd 
to aptiul time, in thai it is so plain ; let me but 
make one inatancc. 
' A man is taken de aorU hominu ; he is not 
bailable bj writ, sailh this Stotnle ; that ij, by 
die conmon writ :' there was a cotnmon wnt 
ttv this caw, aral that was called de odh tl atia, 
aia{ipearetb, Bracton, Coron, 34, This is the 
writ intended by tbe staiote, which is a com- 
mon writ, and not a special writ ; bnt, my 
lewd, at this writ de odio el acta was before this 
Kaloce, so it was aAerwards taken away by the 
sunite of 38 E. 3, c. 9. Bat before that tta- 
tott, this writ did lie in tbe ipecial case, as is 
•hewn in Coke's 9th Repott, the podterer*! 
Case ; and tbe end of ibis writ was, that tbe 
lalgtct might not be too long detained in pri- 
■m, as till tbe JDMices of Eyre discharged them. 
So that the law intended not that a maa ahould 
■iSer perpMnid imprisonment, for they were 
Hry cuefi)! that men should not be kept too long 
in prison, which is also a liberty of the subject ; 
and, my lord, that this contt huh bailed upon 
a mspidon of High-Treaioo, I wiU offer it to 
jom lordship, when I shall shew jiau precedents 
10 these cases of a commitment by llie privy- 
etwoeil, or bj the king himself: but before I 
nfe these precedents unto your lordship, of 
which there be many, I shall by your lordship's ■ 
isTPSr ipea k a little to tbe next eicepCion, and 
that is to the natter of the return which I find 
* be ' per qieiuale mandauim domini r^s.' 
Aad what ia that? It appears by this writ, 
there may be suadry commands by tbe king; 
we £nd a apecial command often in our books, 
■ ia tbe BtatDta of Marl. cap. 8. ibey who were 
aapriioned Kedbs,' shall not be delivered wilh- 
on the qjecial eomntand of oar loid the king, 
Aad sa in Br«cton, deAttiomlmi, the last chap- 
ter, where it appears that the ki^s commaod- 
Bent fior imprisonineDta is by special wni ; so 
by writ again men are to be iMirered, for in 
lb« case of Kedia' or Piit Rediti, ir it shall be 
I by a Certiorari, that is by a special 



?r parties. So that by ^^ , 

that by the Mng's commandment to imprison, 
sad to ddirer in those cases, is understood this 
writ, and so it may be in this case which we 
hare beard. 

And this return here is a special Mandatum; 
it any be noderstood to be nnder some of tbe 
kill's seala, 49 Ass. and ought to be ddirered ; 
«a<r will joo make a diSeience betureen tbe 
kini's command imder-liii fnO, and bia com- 



mand by word of mouth? What diSetvoce 
tlwie is, I leave it to your I ordabip'n judgment i 
bnt if there be any, it is the mure mairnal that 
it bhould be expressed what manner of com- 
mand it was, whit^h duth not hf re appear ; and 
tberefure it may be the kiug's cummand by 
writ, or his command under bis seal, or his 
commnnd by word uf mouih alone. 

And if there is any of-tbeic commands of an 
higher nature than tbe other, doubtless, it is 
itet by writ, or under seal, Tor they are of re- 
cord, aud in these the perwin may be bailed, 
and why not in thisP As to tlie legal form, 
admiiiing there were substances in tbe re- 
turn, yet there wants legal fonn ; for the 
writ of Habeas Corpus is the commnndmeiit of 
the king to the keeper of the prisons, and 
thereupon they are to make return biitb ul' tbe 
body, and of the cause of the cummiinient, and 
tbut cause is to appear of them wl|0 are tbe 
immediate i^cers. And if he doth it hy signi- 
fication Irom another, that return is defective 
in law, and therefore this return cannot be 
good, for it must be from the officer himself; 
and if tbe cause returned by him be good, it 
binds the prisoners, 

The warrant of the lords was but a direction 
for him ; 'he might have made his. return to 
have been expressly hy the king's command- 
nMnt, there was warrant for it, 1 shnll not need 
to put you cases of it ; for it is not enough that 
he returns that lie was certified that the com- 
mitment was'by tbe king's command, but be 
must of himself return this fact as it was done. 
And naw,mylord, I shall offer to your lord- 
ship precedents of divers kinds, upon cummit- 
ments by the special command of the king, and 
upon commitmeots fakitb by tbe king and the 
lords together. And howsoever I conceive, 
which I submit to your lordship, that our caae 
wilt tiDt stand upon precedemi, but upon the 
fund a mental taws and statutes of this realm; 
and though the precedents look the one way or 
the other, they are to be brought back uuto 
the laws by which the kingdum is governed. 
In tbe 1st of Hen, B, Rot. Pari. 9, one Har- 
rison was commiired to the Marslialsea by the 
command of the king; and b^iig reolnved by 
H. Corpus into the court, the cause returned 
was, that he was committed ' per mandatum 
' domioi refis,' and be was bailed. 

In the 40 Eliz. Thomas Wenden was com- 
mitted to the gatehouse by the commandment 
of tbe queen, and the lords of tbe catmcit : and 
being removed by an H. Corpus, upon the ge- 
nptol return he was baited.— In 8 Jac., one 
Csiar was committed by the king's command- 
ment^ and ihis being returned upoo bis H, Cor- 
pus, upon the eiammation of this case it doth 
riear thnt it was over-ruled, that the return 
uld he amended, or el*« the prisoner should 
be delivered. 

The precedents concemiiu the commitomit 
by the Lords of the Council, are in effiect the 
same with these where the commitment is, by 
the reason why the causa of the coouaitment 
should.not be shewn, holds in both caaes, and 



11} CTATETRIALS, SCkaklesI. 1927.— Pr«aediigi<mtke HabeiuCorpn, [IS 

tbU i»tlM ntceuily of Miit; aai ib«reibre Mr. 
Staiofotd makes iht cataxtmad of th« king, himI 
thu orth«k>r<l*oribefrit;r^c«4HiEil, to babocL 
Bi on< ; aa4 tolhis purpoaa, if Ihejr speak, ha 
Bpeaki; and if he apeikf, tbey ipaalk 

The precedents tbut we can sLew jou, bow 
tbe subject haib lieen delivertd upoD commit- 
ment by tbe lords of [hecoaDcil.ao i»tbe tkMi 
of Hen. 8y and in the tinei of i^eii Eiix,, aid 
queen Mnry^are infitute ; a» in ibe Bth 'EKi. 
Thomas LawreBce WIS coBuniUe4 to the Tewcr 
bT the lords of ihe council, and baibd upon aa 
H. Corpus. 

In the 43 Eliz., Calvia's cMe. In the 9d 
Eln., Vemon'f cue. These wera committad 
for Hig> TreasoD, and yet bailed ; for in kU 
these cases there must tie a coovictioa in due 
tjose, er « dellverauce hy Un, 

There be divers other preeed«nts that inkbt 
be shewn la your lordship. In 13 Jac., bfilei 
Benards. In 13 Jac., liot. 155, Rd. Beckwitb's 
nose. In 4 Jac, air Thocnae Moason waa oaia- 
skied for treason to the Tower of Loodoa.and 
afterwards was broi^ht hither, and bailed ; and 
tine* aur case staoda upon ibis return, and yet 
there is no sufficient cause in law Mfiteeeed in 
the return oftfaeiietsitiing tliisgemleiBani and 
since titesa precedents do tnurant our pro- 
js ; iity hiunble suk to this court is, tliat 

> gentleniiui, sir Johti Heveniagbam, who 
hath petitioned his inajesly, tliat lie loayhave 
the benefit of the Inw, and his majesty hath 
signilicd it: it is bis pleasure thtit justice ac- 
cordiag l« th« law shoitld be administered at 
all times in general to nil his subjects: and 
partieulariy tu these eeutlemen, which is tbeir 
Wth-right : ny huinhle<saiL to your lordship is 
that these gentlemeii may have the benelit of 
that law, and bo delitered from their impriaon- 



Mr, Noye's Argutnent of Counsel with sir 
WiOur Eiirl at that time. 

May it please your lordship, I am of coun- 
sel with sir Walter Eurt, one of the prisoners 
at the bar : the return of this writ is as those 
(liat have been before, they arc much of one 
tenour, and a% you have henri tbe tenour of 
that, so this gentleman coming hither by an 
II. Curpus^I will by your lordship's &Tour read 
the writ: 

■ Carotaa, Dei gratia, &c. Johanni IJloe 
'miiit' Guiirdian' prison' nostra de le Fleet 
' salut*, Frzcipimui tibi ijuod corpus Wslteri 
' &irl miLt' in prison' nostra anb custodia tua 
' deCoiC' ut dicit' una cum i-ansa detentionii sua 
* < qaocunqiie nomiaa pradict' Walter* censeai 
' in eadtm HabeaV Corpus, ad Hibjiciendum let 

• recipiendum ea quEs curia nostra de eo adunc 
' etibideB ordiu' conting' in bac parte et hoic 
' DuUatenns omit' periculo incumbend* et ha- 

* b«BS ibi hoc brere. Test' Hyde', apod West- 

< minsMr, qiiartodie Nor., anns 8.' ' Eiecu- 
' tio istius Brevia patet in ^hm 

< bac bran luutciM.! 



'E^o JohBoaesLiloe Mir Guardian' Prison' 
' domini Kegisde le Fleet, serenissiioo dotaino 
' ragi, Bpud Westminster 8. Fust receptioneni 
' bnltn brevis cfiod in hac scliedula est weif- 
' tiooat', Cartifico quod Walter £uil railes, in 
' eoden breviuin nominat' deteutus est in pri- 
' loaa de le Fleet sub custodia mca pradicli* 
' per spceiale mandaiuiu ilomini regii luiLi s^ 
' uificaiun per WarrniitutD dnorum etaliunim 
' de Privato Coiicilio perbonorabili«Biiai dicti 
' domiii reps) cujus quideai tenor seyntur in 
' bac verba,' 

Whereas sir Walter Earl, knight, was here- 
tofore committed to yi>ur cottody, iheae are to 
will and require you still to deiaiu hia, letting 
you know, that l>utb his first couuniUixnt, ana 
this direction for the continuance of him in jtri' 
son, were and are by bis majesty'i special cum- 
mandznent. From Whitelnll, 7 Noveuibrii, 
ie9T.ThoniasCoveniTy,C.S.,nenry Mancbec 
ter, Thomas SuSolk, Br]d^» ater, Krily, R. Du- 
nelin', I'homas Edinunria, John Coo)i, Marlbo- 
rough, Pembroke, Salisbury, Totness, Gmndi- 
son, Guliel' Bath and Wells, Uoheri Nanlon, 
Richard Weston, Humphry Mayes. 

To the Guardian of tbe Fleet or bis Depoly. 
' Et hssc est causa deteutioais predict' WbI~ 
' lari Earl sub custodia mea in priseu pnedtct'. 
' Attamen corpus ejusdem Wiilteri ciirata do- 
' mino rage ad dieai ct iooum pvodiclum, post 
' Feceptionem brevis pnwticlT parat' luibeo 
' prouC iHud breve in be en^et et vequitet.'' 



My LoTi^ the first Habeas Corpus bears dM« 
the 4ih of Nov., tlien there is an Alias HabeM- 
bears Testa after (hat, and the wsour th««of 
is a cvniinBBd ta the warden of the Fleet, 
' quod HabeasCorpus Waiteri Eed,coram nubi^ 
' od subjicieodura et recipiendtun en qua! curia, 
' nostra de eo, &c, ordin' floatinj^.' Aiid iha 
Wanlen of the Fleet, be oertt6es as your lord- 
^ip haa heard. May it please your lopdship, 
I desire as belbrevws detuvd fopthe other geu- 
tlewen,thatstrWBlterEarLmayheaiK) batled, 
if ihera be no other cause of bi» itnptisonnlent : 
for if there tvera acause certified, aud that g>«m 
irere not tufficieui to detain him Mill in pnsoa, 
yuur lordship would buil him ; and if a mai» 
should be in a worse case, when there is no 
cause certified at all, tliat wotild be very liard. 

Tbe writ is, that he sliould bring the prisoocp 
coram nobk, belbre liie kin^, the end ol' thait ia 
' ad subjicieadum et recipieailuni ;' now 1 con^ 
cetve, that thou^l [here lie aiignifieation oTtlw 
king's pleasure to have this g^ntjeiuan impri- 
soned, yet Hheo the king grantj this »rit to 
brioB me prisoner hither, ' ad sutjiaieadum et 
■ redpieaduai,' his pleaaune lihewisa is, to hav« 
the prisoner let go, if bj law he be not cliaif*- 
able ; or otherwise t« ileiaiB him Hill in piiiM^ 
if iIh IMS w> le^Htre it, 

Goo;;lc 



13] STATB TWMUS, 8 Cukkm J. l«<7v-r^n)i«b IgiSirT. Hantt, ad eOen. [14 

ttMK h« ii 



I win pot jour luntiliip in miiMl oT « me, 
watd it ou P«ich. 9 Ed«. 3, M. 3. I will eke 
li)' d« Plucita, bcciuM mj book w net paced 
K ottwr boots are ; it ii in the mm «f ■ Cm- 
Mzi(. In that r>ke there were two thins coa- 
lidrrdile : tli« one that tliere was a 5i|;iiiicMioD 
of the kiii)c'i pleasure past, and that detennintd 
with h'm : ilie other, that though (here win n 
significiiuon of the king'* pleasure before, yet 
there ruinr* after that a writ ; and tlial was 
another ujcDificaMnn of the kmg'« pleBsiuv, <hat 
■he prisoner shaU be brought liitber nil tuHifi- 
mdtm, to lubtnit himself to puiiv<hni«nt, i< be 
h>ic deserred it ; m md recipiendttm, to rer 
reive fait enlac^rlDant, find be dditered, if there 
be DO came iil bis iiii prison tntnt. 

Aad if upoD ail Habeas Corpus, a cause of 
CnmmitiRent be cenified, that cuate is to be 
Bied bere befare jonr lurdihip. But if no 
caute be iliewn, tben the proceedinfs musl be 
' ut mria nostra ad raat' concieerit,* the court 
do that nhichsianils with law and justice, 






a dt1.v< 



tij lord, I shall be bold to nove one wotd 
more (ourhing ibtt Herimi: I conceive that 
every officer to a court of juslice nuM make 
his rFtnm of hii own act, or <if (he act of ano- 
ther, nnd not wtei he is certified i>f br another. 
But ill this t»se (tie warden of t(K Fleet doth 
Dot certify himself, of himjelf, th*t this gentle- 
ta»a was commanded to him by the king, but 
chat be was cenitied by the lords of the coud- 
dl, that it wfts the king's pleasure that be should 
detain bidi- But in our rase the warden of the 
Fleet mmt cettiFf the immedinte- cause, aod 
Dot the cause of tb* cause, as he doth by this 
Rlom ; ■ DetendiB est sub custodla mea per 
' ipeciale maiidatnm Domini Vi.efJ9 mifai signi- 
' tcalom per Wamntum duonim de Prttato 
' Concilio ;' that ii not the use in law, but be 
UD^l lo return the primary catis*, and not the 
nbH^usnt csDse: as in 33 £dw. S. return, 
Bex iicecom' ST. ie • writ De Hotnine Keple- 
pando, against an abbot, dip sberiff return*, 
rtm be hnih sent to the bailitF of ihe abbot, 
and be itiiswered him, that the party ytp tlie 
abbot's villain, and so be cinnot driver him ; 
that it ii held an insufficient return, and a new 
Aliatnas grwied. But if the sl^iiff had r*- 
tnnied, that the abbot did cerlii} him to, it hod 
been pMMj ; but he must not return whqt is 
certified tiiin by another. 

In one of (be precedent! that hath been 
noted, as that of Parker, 33 H. B, there the 
gaanfiaji i>f the prison certifies, that Parlcer 
' dtteotos est tab cuatoriia mea ptr mandatum 
' Domini Regis mihi iiunciatum per Hnbertum 
' Pecke ■' now our case is by the nunciation of 
many, but in faiw ' Majui et minus non Tariant 
' m epecicin,' the certification of one and of 
many is of the same eSeri, alihnugh in moral 
soderstanding there may be a diRerence. 

Trin. 9 E. 3, Hot. 40. in this court in 31 E. 
'3, in the printed Book tliere is a piece of it : 
ibe abbot of Bury beings a prohibiiioa out of 
das court, the bishop nf Norwich pleaded in 
■tvoftliM,* QiMKl'iqjbitatificatumquod con. 



CBiad ; there were two i 



id they ai 



why he wa* eicomoioiiicaled ; there nay be 
c««58i why he should be eicimmunicatcd, and 
then be riionld be barred, and there may be 
caiue* why tlie eicummuiiicBtion sbotild not 
bar fatal : for it may be the excumoiunication 
was for bringing tlie action, which wis lbs 
king's writ; and ther«f(»« because then was 
no cause of the eicommuuication returned, it 
was ruled that it was not good. I'ha other 
reason is that upon the Roll, which is mHu tu- 
tifi^aiutn. 

Now every man, when he will make a cer(i< 
ficate to tbc court, ' Proprium factum toum 
' non alterius significare debet,' ha mast infom 
the court of tka immediate act done, and not 
that such tbiags are told him, or that Micb 
thikp arf signihtd unto hiat ; bnl that was not 
done in this ca*e, and therefore it was held 
inenCcieat, tuid so ia this case of our* I cod* 
ceire the retom ii ioMifficient in the forai. 
There is another cenie, my lord, for which I 
conoeive ibis return is not cood. 

But first I'will be bold to infbnri'yoar lord- 
thin, touching At statute of AfagnaCharta Sff. 
' Nullus liber bomoeapiatur vel iiapritonetur, 
' &c. nee super eum mittimus ni^i per legate 
' judicium pariam suorum, vel per legem teme.' 
That in Ihii statute theie words in esrcerera 
ai<e omitted out of ibe printed books : for it 
sboald he 'nee eura in carcerem mittimus.' 
Foe these words ' per leeem terre ;' what ' I)et 
' teme' should be, 1 will not lake upon me to 
expaund, otherwise than 1 find them to be ex* 
pounded by acts of parliaroeut; and this is, 
that they are utMlerstoud .lo be the proceu of 
the taw, sometimes by writ, sotnetimes bj 
attachmant nf the person : but whether, 
' speeiale mandatam Domini Regis' be intend- 
ed by that or no, I leave it to your lordship^a 
expcsiiion upon two Pctitiona ot the commons, 
and AiHwer el the king, in 34 £. 3, No. 0, aod 
No. SO. 

In the first of them the coromovs complain 
that the Great Charter, theChartar of the Forest, 
and other italutes were brokeu, and ibey de- 
sire tbat far the lood af faimeelfand of bis peo- 
ple, they might be kept and put in execution, 
and tbat tbey niightnoCbeinrringed by tuaking 
im arrest by special eomisand, or otherwise : 
and the answer was, that the assent of the 
lords established and ordained, that the said 
charter apd ether statute* sfiauld be put in aie- 
ct)tTO(i atxordlng to the pcriiion, and that is 
without any 'disturbance by arrest by special 
comraand or Mbern ise ; for it was granled, as 
it was petkiened. 

In the same year, for they were very careM 
of,tbis matter and it wa* necenary it shoold be 
so, for it was then an usual thing to take men 
by writs ' quibusdom de causis,' aad many af 
these words . . .- . 

ibewD ; and I My ia the it 



15] STATE TRIAI£, S Charlbs I. 1637. 

jifaified that men wm impnsoaed bj special 
Goiamaiid, and wiltiout indictmeDt er otber 
lef!,iil course uf luw, nnd tbnr desired that ibiop; 
tauyant be doue uprin men by S|jecial conummd 
■gBiiiM tbe Great Charter. 

The kinji mnkci uiswet, that he is well 
pleiued [herewih : ttiat wan [he 6nt Bii^wer ; 
and for the Tuture be liach adiled farther, if anj 
inaiibeK>')e>ed,let him coinpIaii>,and right shall 
be doaeuuui liim. Tiiis, <iiv lord, isanexplana- 
tiaii oTtiie Great Chnrrer, ss also the statuir of 
ST Ed. 3, c. 18 ia a comrueniaij upon it, that 
mcD would 001 be committed upon suggestion 
made to the king, without due pro 'fs of biw 
agHin them, and »u it is enacted twice in one 



-fTMeediagim the Babeat Corpm, [18 



year. 

We 6iid more printed 'book*, at in Hen. 6, 
Hnu de fiacts, titz. 18S. ubirh i« a strong 
Ciise, under favour, in an action of tr-^ass for 
cuitiDK dnwii ' tree*. Tbe defi.ndaii[ tait^, 



tee, and that the king did cuniinaiid him ti> cut 
them-: and rlie opiuiim of the court whs, that 
this was no c<iod plea, without shewing tlie 
spc^^ltjr of the command; aud tbey said, if 
tiie kio^ commnnd me to aiTest a nun, wtd I 
arrest him, hi: ajiHll have an action of fatie im- 
priaonnieni against me, altliuugb it were doite 
in the king's presence. 

In 1 Jul), cap. 7, fut. 46, it is in prbt, and 
there »e leave it. 

Hinscj, Chief Justice saitb, that air John 
Harkliam told king Edw. 4, that he could not 
arrest a man upon EUipicion of frlony or tfca- 
•on, ag any of his subjeciB might; btcause if 
he should wrong a mau by such arrest, the 
parlies could have no remedy acainst bim, if 
any man shall stand upon it. Here is a signi- 
fication uf the king's pleasure, not to have <he 
cauM of tbe cuauaitment examined; he hath 
here another signification of his pleasure hj 
writ, whereby the party is brought hither ' ad 
* subjiciendum et recipiendum,' that iie haifa 
made ^our lordship ju<^e of that,' which should 
be objected aguinst this gemleman, and either 
to punish him, or U> deliver bim ; and if there 
be oo cause shewn, it is to be intended that 
the party is to be delivered, and that it is the 
king^a pleasure it: should be so i and the writ a 
a sufficient warrant lor tbe <doinz cif it, there 
being no cause shewn of the imprisonment. 
And now, my lord, 1 will speak a word to the 
writ of de komme repUgundo, and no other 
writ, for that was the common writ; and the 
four causes expressed in that statute, to wit, 
the death of a man, the command of the king, 
or his jusiice, or forest, were excepted in that 
writ before that statute mode, at appears 
Bracton 133, so that tbe writ wai at tbe com- 
mon-law before that statute. 

And it tppears by our Books, that if a man 
be hrouEht hither by an Uabeaa Corpus, though 
he were imprisoned de mortt ionUnit, as io the 
31 £dw. 4, r. WiackGeld was bailed hare, this 
court bailed faim, for be was brought hither 
' ad subjici«iiduiii et recipieiiduiD/ uid not to 



lie in prison God knows how lung; and if the 
statute should be eipouniled otl.eritise, there 
were no bailing men outlawed, or bitakets of 
prison, fur they are nut within this iiiaiute, and 
yei this court doth it at pltasnrc. 

But plainly by tbe statute iiaelf, it appears, 
that it meant only tfau comuion writ; lur tbe 
preamble recites, tlint the thirifft uud otheta 
had taiien and kt'pt in prison peisoos detected 
of ti'lony, and Irt uut to plevin such as nece 
not repruable, to gr>eve Uie one pavty, and to 
the gain of tlie other ; and tnrasmuch as before 
this liiiie it was oot determined ithat prisoners 
were reprisable, nnd what not, but only in oer- 
tain cases were expressed, tfaetetore it is o^ 
doined, S:c. 

Now this is DO more than for direction to the 
keepers of the prisou»,'tbr it leaves the msLter 
tu tbe discretion of tlie juditet, whether bail- 
able or not ; tor viliea the statute hath declared 
«lio are rCplei'iuUe, who are nor, as iiieo out- 
lawed, thuse who have abjured the realm, 
breakers of prison, burners <if hnuses, makers 
01 false money, couDterleiting 'if tlie king's seal, 
Biidtbehke; it is tbeo ordained, that if the 
ibeiilf, or any oiber, let any pi at. large by 
suritj, that is not teprisable, wht'ther he be 
tlieritt, constable, or any other that hutb the 
keeping of prisooi, and iliere»rbe attainted, he 
shall lone his olbo; aiid fee for ecer ; ao iliat it 
extends to the common gaulers end keepers of 

Erisons, to direct them in ftbal cases they shall 
It men to bail, and in what ca&ea nut; and 
that they shall not be Judges whom to let to 
replevin, and wiiom to keep in prison ; but it 
extends not to the judges, lor if the makers of 
the statute had meant tliem in it, liiey should 
have put a pain or penalty upon tliem also. 

So then I conclude, under jour lordJiip's fa- 
vour, that as thiN case is, there shouhl have 
been a cause of the commitment eijiressed, for 
these gentlemen are lirooithl liilber by writ erf 
JKyicienduM, if ihey be charged; and adreci- 
funium, if they be not charged ; and tlierefore 
in regard there is no chin^e against then), 
whereupon they should be deiained in prison 
any lunger, we desire that they may be bailed 
or di charged by your lordship. 
Mr. Seldem'i Aigument at the King's-bencb 
bar the same day. 
My Lords ; I am of counsel with sir Edm. 
Hampden ; his case is the same with the ottier 
two gentlemen ; I cannot hope tu say much, 
after that tliat hatli been said ; yet if it shall 
please your lordship, 1 shall remember yuu of 
so much as is b«fallen my lot. Sir Edmund 
Hampden ii t rought hither by a writ of Dabeaa 
Corpus, and the keeper'of the Gntfhou^c hath 
returned upon the writ, that sir Edm. Ilanip- 
den is detained in prison ■pertpeci^ie num- 
' datum domini regis, mibi significatum per 
' warniDium duorum privnii concilii dictl do- 
* mini regis.' And then he recites the war- 
rant of the lords of the council, which is, that 
they do will and require him to detain this gen- 
tt«iuii »uU io pitoR, letling ioa koow Utu 



17] STATE TRIALS, 3 CuiiW L lS(a.—inughi bsSirT. Damel, and othat. [IS 

mentioned and fullt «xpmsed : je\ I will idd 
btUe to thmt whidi hath heta taid. 
llie statute of Mogna Charta, cap. 89, that 



Ui Ent impriaoDinent, Ace. May it platie 
jMT lonhb^, I ilwll haioblj tnoie jou that 
(hn gcnlhniBn ma; also be bailed ; for undrr 
hmat, mj lord, tban ia no cauw id the return, 
^j he tbould be an; (hnh«r iniptiMii«d and 
-rMtniaed oF bi* libcrttf. 

Mj Imd, I thall taj lomething to the form 
■af Ihi nit ; and of ine return ; but lerj little 
tDifaon both, became there is a Tcrj little left 
Atm to ttf. 

Uj laid, to ibe fium, I laj it eipreweth no- 
AJBI of the fiist capnoo, and therefore it is io- 
iJiciml ; I will add one reason, as hath been 
wU: tbe Habeas Corpna hath onl; these 
«enfa, 'qnod habeas corpus cji» nna cum 
'cnm detentioois, -et nea capiionis.' Buc, 
aij loni, bccaoie in all itnprigonments, (here ia 
■ cnn of cBpUoD aod detentiod, the caption 
ii to be azawend aa-well u the detention. I 
hne Nen mar^ writs of thii nature, aod on 
tbnn the caption ig retorned, that tbejr might 
Mt ihe ttne of the captioD, end ihereb* know 
vbetber the partj ihoald be deliverM or no, 
nd that ID rrgard of tbe length of . bit impri- 

TU next exeeptian I Uke to tbe form ii, 
4kt there i* macD nnceitainty in it, to (bat no 
«an can icU when the writ came to the keeper 
«f the fmoa, whether bqfon the retsm or 

tr ; for it appears not when the king's com' 



a for the 



the signifi' 



1^ or the «i) 
I him. It is 



blfj'"eiewi'i 
be, everj man would i 
ibao he doth. The law taith expreMl 



would enjo^ his libert* I 

The law taith expressly, 

freeman shalLbe imprisoned without dui 



tMAappeare 

Ttliof NaTember; bat nliKi it came to the 

keeper of tbe prison, that amsean 

Md tbereibre, ai for want ot mentkining the 

Mas tine of the caption, so fer-not exprnsing 

^faeome time when this warrant came, I think 

dierrtam is bult; ia (brm, and void. 

Aad for apparent contradiction alio, loe re. 
nn ii ioaufficiait ; for in that paA of the re- 
tara which is before the warmnt, it is mid, 
' Qood deteotiia est per ipeciele mnndatum do- 
' aiai regii.' The warrani of the lords of the 
CMndl, the ver* srllabtei of that wamnt are, 
■hat the lords nf ttie council do will and re- 
^niektm Kid to detain him, which is contrary 
B the first part of the r«nrn. — Besides, my 
lord, the lord) themsriTes say, in annihrr place 
aadfBBase of the n&rniat, that the king eom- 
sMded ihem to commit him, and so it is their 
. <otDaitment; so that upon the whole matter, 
tksR appear* to be a clwcontnuliction ia the 
istnn ; and diere being a pontradictiou in the 
retam, it is void. 

N«w, my lord, I will speak a word or two to 
tW EMttcr of the return ; and that is tooehiiig 



: aiai admitting 
of any, ot eitb«r, or both of thete to be the re- 
tea; I think that Iff ihe constant and Bfttled 
In* of tbit kingdom, withotit which we have 
•otkiBg, ao man can be Justly imprisoned by 
nbtr at ibeil], without a cause of the commit- 
MK npreenid in tlie return. My lord, in 
huh tbe last argtuoenta tlM ttatirtas W* bevn 



of the law;' outoftherer; hodj of thi» 
act of parliament, besides the explanation of 
other statute^ it appears, ' Nullus liber homo 
' capiaturvelimpruonaturniiiper te$;em terr«.' 
My lord, I know these words ' le^m tprrE,* 
do leave the question where it was, if tbe inter- 
pretation of the statute were not. But I think 
under your lordship's lavonr, there it must be 
intended by due course of law, to be either bj 
presentment or by iodiciment. 

My lords, if tlie meaning of these worja, 
' per letem terrc,' were but, as we use to say, 
according to the laws, which leares the matter 
TCry uncertain ; and ' per spedale mandatum,' 
&c. be within riiemeaiiingof these words, 'ac- 
cording to the law ;' then this act had done no- 
thing, Tbe act is, ' Ko freeman shall be im- 
' prhoned but by the law of the land.' If joa 
will nndentand these words,' per legem terra,* 
in the first sense, thii statate shall extend to , 
riltains as well as to freeinen ; for if I imprison 
another man's rillaJn, the rillain may have an 
action «f false imprisonment. But the Idtdl 
and the king, foi then they both had villalna, 
might imprison them ; and ihe villain could 
have no remedy. But these words in the sta- 
tute, ' par legem tern,' were to the freeman, 
which ought not to be imprisoned, but by du* 
process of law : atid unless the intrrprelation 
shall he this, tbe freeman ahnll hnre no privi-, 
'lege above the villain. 

So that I conceive, my lords, these words, 
per .legem terra:,' must be here so interpreted, 
s in 48 F.lii. The bill is worth observing. It 
reciteth that divers persons without any writ 
or pnwtntment were cast into prison, &c. that 
ight be enacted, that it should not be so 
> liereafler. The answer there ii, that as 
is an article of the Great Chatter, this 
should be granted. So that It seems the tie- 
tnte is not taken to be an explanation of that 
of Magnn Charta, but the i-ery words of the 
atstute of NTagna Charta. 

I will conclude with a little observation upon 
these words, ' nee loper eum mittimus ;' which 
words of themselres iignify not so much, a man 
cannot find any fit sen?e tor them. But, my 
lord, in the Ttli king John, there was a Great 
Charter, by which this statute in the 9th H. S, 
whereby we are now regulnted, was framed, 
and there the words are, ' nee earn in carcerem 
' niittimas.' We n-ill not commit him to pri- 
son 1 that b, tbe kiug himself will not ; and to 
justify this, there is a story of that time ia 
Matthew Paris, and in that Book tl^s Charter 
of king John is set down at large, which book 
is very authentic, and tliere it it entered : and 
in the 9th of Hen. 3, be saith, that the itatute 
Wat renewed in tlie tame words with the Char- 
ter of kii^ JobB. And, mj hnf, be mi^ 



19] STATE TRIALS, 3 Chables I. 1697.— Proandiiigt on the Habeat Corfia, [M 
be doth 



know it beiti?r than otiiers, for he was rhe Ii 

Chronologej in thoje times : ami therefore, raj 
lord, lince there be io mniiy reasona, and sc 
inaijj precedent*, and so man; 5tDtutG«, ithtcl 
declare, that qo freernaii whatsoever ought ic 
be imprisoned but according (» the laws of tht 
land ; and that the Lihertj of the Suhject is 
the liighest iuhcciiiuice Chat he faaih ; my hum- 
>ilc re<|ue£t i<, thai KCcordint; to ihe ancient 
luMS and privileges of this realni, this geiitle- 
niiin, tny client, m«y be bailed. 

The AiiciTMENT of Mr. Caltueop, at the 
KiDgVBentb bar, 33 Nov. Midi, 3 Ci 
regis. 
Sift John Ciirbet being brought to the 
King's-Bench bar, with tir Edmund Hampden, 
■ir Waher Earl, and sir John Heveninghatn, 
nho were tilsu brought thitlier by serenil wiiis 
of H.iheai Corpus, witli the saine return ; I 
being astigneA by the court of King's-Bench, 
upon a petition dehvercd, tobeuf cnnnsel uith 
tir John Corbet, did move that sir John Corbet 
might be discharpi'd of his Imprisonment, aad 
put in bail; fur 1 did concejie that tho return 
of this 11. Corpus wat iusitlhcienc, botii in the 
mailer of Ihe return, nnd in (he manner of the 
return, and su thvrenngbc Dot to he a longer 
detaining of sir John Corttct in prisun. For as 
to tliu manner of the return, it is not laid down 
precisely, iliiit sir John Corbet is detained in 

Eriiion by ttic speciid comnmnduieiic uf the 
iug, signified by ihe warrant of tlie lords of 
the council ; tlie which is not a direct aSirma- 
tioD that lie is detained by the special rommand 
of the king, but that the lords of the council, 
by their warrant, have signified unto him that 
he was commiilcd and still detained by the 
special oommand of tb* king. 

And liomsoever ihc lords of the council had 
signified that he was detained by the commatidi- 
ment of the king, yet it may be be was not de- 
tained by the coniuiandment of the king ; for 
iheir si|{nilicati'un of the same by warrant may 
be untrue, and ilie warrant of tlie lords of the 
council that is returned in Am: iiirhi, impnrteth 
that the keeper of the Gatehouse rather tonk 
upon him to return, tliat it was tignilled unto 
hiiu b^ the warrant of the lords of the council, 
that sir John Corbet was commilted and de- 
tained by the tpecial commandment of tlie 
king; because il the keeper had taken upon 
bin) to affirm it upon his return, then needed 
lie not Co have returned the warrant of the 
lord* nf the council : and the warmnt itself 
sheweth that he had only his information from 
the lords uf tlie council. For ihvir warrant is 
to let the keeper know, that both the first com- 
mitmeiit, nnathis direction tor the cnutlnuiag 
of him in priwo, were and are by his majesty's 
soecial commandment ; and 1 do not see, as 
this return is made, that an accord upon the 
case can lie upon (he ketper of the Gntehouse, 
if sir John tiirbei was iir)t commilted nor de- 
tained by the special commandment of the 
king, so lonK as the warrant ol* tli« lords of the 
coiuicil be letorned as it was made, because 



as the lignilicavic of 
the Idrda by their warrant. Register 65, the 
writ of Excommunicai' Capiend' gnetli, ' Rex 
' vicecom' Linculn' S. signihcavit nob' vener«- 
' bihs pater Henticus Liiicoliiiensis epiB(»po$ 
' per titfra* suas pnienies quod R. bdus par(T- 
' chial' propter luam manifestam contuuuic' 
' autboricaie ip-iius episc' ordin'excom' eit, nee 
' se vult per censuram ecclenaiticsm justiiHar' 
' &c. tibi pracipimus quod pnedict' R.percor- 
* pus suum secundum consoetud' AngliK jus- 
' tic' &c.' And yec no'.man will sav that there- 
is an inforniaiioQ nf the king,'thaC R. iseicom- 



nicnted. And iu Fill. Nat. Br. 663, and Re- 
gister 65, it appears that the ibrm of the writ 
of Eicolnmunicaliim deiiberand' is, ' ReiTice- 
' com' Lonthtn saiut'. Cum Tbom' Jay allu- 
' tar' London' qui nuper nd denuniiat. vener*- 
' bil' patris archiep' Eborum pro contumaciii 
' sois ratione contractus in civitaCe nostra Ebo- 
' rum liabic' ut dicitbjit. tanqnam eiccim' ec 
' claves ecclesiK con teamen I' per corp' sunin 
' secundum cunstictud' Angliai per te justic' 
' pnecepimus, donee &c. esset satishct' eid' 
' archiepitcap. ad sniiifaciendum Deo eltanctK 
' eccleane, audi cien tern expuault cantionem, 
' per quod eidem arc liiepi scop ui offic. archi- 
' disc, London, luutuie vicissitudin' obtantu 
' tcripsit ut ipsum nhsolvat ab eicom' senten' 
' nieniorata sicuC idem arrliicfiiscopus per lite- 
' ms suHS pHtemes nob' significavit, libi pneci- 
■ pimus quod prsd' Thorn, cura tibi constars 
' poierit ipsum abeicoin' prsdicC' per predict' 
' official' absolvi a prison' qua detinetur ai es 
' occasione ct non alia detineet' in eadem sine 
' dilalione ddiberari fac'.' And yet it caimot 
be said, that ollhouEb <!ie king recited in his 
writ ihat the archbishop hud signified unto him 
that lie had written unto the official of the 
archdeacon, cliat the king said, that the arch- 
bishop had wrilten ; for he doth not affirm so 
much precisely, but only referreth himself unto 
the certificate uf the archbishop. 

Ploirden 192. Buck I ^ and River's cnse, it 
is put. That if a man will bring an action of 
dtbc upon an obliifation, and declare that it 
appears by the obligation that the defendant 
stood bound to tbe plaintiff in SO', the which 
he hatb nut paid, tliis declaration i< not good ; 
insomuch as it is not nlledged by matter in 
fact, that he was bound unto him in SO/, but 
the deed is alledgcd'hy recital only, 91 Ed. 4, 
43. 

Plowden Com. 136 ic 143. Browning and 
BeesCon's Case, 

The Abbot of Wallham being appointed 
collector of a Disme granted unto tbe king, in 
discharge of liiiuself, in the Eichequer, plead- 
eCh, ' Quo inter reconiat' Ter. Pasc. anno ]5. 
' riomini Regis Edwardi 1 inter aha continetur 
' quod K. 3.' had granted unto the piedecesson 
of the said Ahhot, that he nor any of his suc- 
cessors should he any collectors of any disme* 
to he ttranted afterwards, and it waa adjudgtd 
that this pies was iU, 



«] STATE TRIALS, aCHAw-Eal. 1627 — brought by Sir T. Damd, and oihcn. [« 

de ClifTordVlnn ;' tind upon hi? return, John 
'nrker was bHilctl : fur the relum ' Cnmmiss. 
fuit per ipeciflle lu mid alum domiai regit, 
nuiH:intuni per Koberitiiii Peck,' wai' not 
luch that ■ - :■ - 



For the saying < Tt wbi contained amung 
the lUconis,' it is no precise HJiinDHtioii thnt 
the king had granted lo hb predeceeson, that 
ibejr ihoDJd be discharged nf the coUecling anj 
dismej, but it is onl; an atlegatioH b; waj ol 
Rciiil, and not b; precise attirinMion, Che plen 
nitjDot be good. 

3 & 3 Mar. D;er 117. & 118. the plaiatiff'!! 
mhr in bar of all plendeth, thac Jolm Abbot 
Df W. was seized of his lands in right of his 
duirch, and so seiied by tlie assent uf the le- 
mot hj indentare, 14 H. 4, ' lestat' quod prc- 
'dict' Abbat' et cunvent' demiseniac et trnt'' 
'daunt' unto ibe plaintiff; and ruled, th 
ihii linm of pleading was ill, Injomucb as 
wn not allfdged b;^ precise affimatiati, ' quod 
' dcmiserunl, aed indentura Eeilatur, quod de- 
'miteniat;' which it not auHicieiit, insoiunch 
aitl ii onlv BD allegation bj wajr of re 

tbu tlie indenture dath wiineis, and the l 

indeDtnte roaj witness so much, and yet not 
lieadetnise. 

And if in pleading there must be direct 
tSnnitian of tli« matter dledged, iLien i for- 
liori in a return, which must be more precise 
tW in pleading; and so faj all the cniei I 
hare fbnaeHy touched, it, appeareth that this 
nlnrn is no eapress affirmation of the keeper 
«f tbeGatahouse, that sir John Corbet is de~ 
uiaed in prison bj the tpecial commandment 
of the king, bat only an affinnation of the 
kcdi of tbe council, who had signified unto 
km that hii detainment in prison, was by spe- 
ciil comnuuid of the king. 

Tbe retom, which ought to be certain, and 
faactnal, uad affirmative, and not by the way 
of inStmiBtioii out ofunother man's mouth, 



i. 3, Rex vi^'iei. upon a Homine re- 
. ^ J(>, against (he Abbot of C. the ■hcriff 
retamrth thnt be had sent lo the teiliff of the 
abbot, that answ^ed him, that be was the vil- 
lan of tbe abbot, by which he' might not moke 
deliTenuice, and a Sunt alia* was swanled, Ibr 
hb retum was inaufficieot; iilsomuch that he 
kid returned tbe answer of the bailiffof the 
shhot, nhere be ought to have returned the 
answer of the abbot himself out of his own 

Triu. 33 E. 3, Rot, 46. parent' vilJ' et Burg. 
ETO((iie de Norwich, repf" 08. Nat. Br. Case 
31. Fdi. Nat. Br. C5. & S4 E. 3, Excom' 39. 
the case appearcth to be >uch in a trespass; 
^defenilaDt pleadeth the plaintiff is excom- 
iDsnicate, and sheneth forth the letter of the 
hisbop of Liucols, witnessing that fur divei-s 
DMtnmacicB, Ike. and because lie had certified 
DorjnBNMuaic'daoe by himself, but by another, 
ibe Ituer of eicommiviication was annulled, 
Ibr Uie bishop ought to hare certified his own 
■et, and not tbe act of another. 

UiUani 81 H. 8, Rot. 37, it appeareth by the 
wluro of an H. Corpus, that John Parker was 
craunitted to prison for security of the peace, 
<sd for suspicion of felony, as ' per mandatum 
I J : J per Robertum Peck, 



that be was committed ■ per manduium domini 

And for the first pa'riit, I conclude, that this 
return ia iusulhcient iu lurni, iiisonmch, that i\ 
doth not make n preciiie and direct return, that 
he was committed and detained by the special 
command of the king, but anlv as it wis signi' 
Sed by the warrant of the lords of the council, 
which will mil serve tbe turn. And upon ibe 
book of 9 H. 6, 44. the return of the fuuse of 
a man's imprisoninenc ought to be precise aiiil 
direct upon the H. Corpus, insomuch as There- 
by to be able to judge of the cause, whether it 
he sufficient or not i for there may not any 
doubt he taken lo the reium, be it true or 
false, but the court is to accept the same as 
true; and if it be false, the party must take 
bis remedy by action upon the casp . 

And ai concerning tbe matter of the relum, 
it will reM upon these parts: 1. Whether the 
return, that he is detained in prison by special 
commandment of our lord the king, be good or 
not, without shewing tbe nature of tlie coni- 
maudmenC, or the cause whereupon the com- 
mitment is grounded in the return } 3. Whe- 
ther the time Qf tlie first commitment by ibe 
commandment of the king, not appearing to 
the court, is sufficient to detain him in prison } 
3. Whether the imprisonment of tbe subjects 

without cause shewed, but only by the rora- 
mandment of the king, be warrantable by tha 
laws and statutes of thij realm f 

As to the first part, I find by the books nf 
our law, thnt commandments of tbe king ore of 
several uatures, by soma of which the imprison- 
ment nf a man's body is utterly unlawful : and 
by Dlliers of them, although tiie tmprisoninenc 
may be lawful, yet the continuance of him with- 
out bail or mainprise, will be utterly unlawful. 
— There is a verbal command of tiie king, 
which is by word of mouth of the king's only; 
and such commandment by the king, by llie 
books of our law, will not bo sufficient either 
to imprison a man, or to continue him in pri- 
son, 16. 6. ' Monstrans de fnict si,' upen an 
action of trespass brought for cutting of trees, 
the defendant pleadetb that tbe place where tie 
cut them is parcel of the manor nf D. whereof 
tbe king is seized in ler, and the king com- 
manded him to cut the trees: and the op in i en 
of the court there is, that tlie plea in bar nus 
ill, because he did not shew any special com- 
mandment of the king ; and there it is t^reed 
by the wboie court, tiiatif theking commandelh 
arrest another, and the party ccnmand- 
airett the other, an action of trespass or 
false imprisonment i^ mainiainable against the 

irty that arrested him, altbouiib it were d<me 
theprat^enceofthekintt, 39 H. 6, 17. whera 

le justificth the seizure of the goods of a 
person that is outlawed by (be commandment 
of tjie kiog, such a party being uo olliccr, luajl 



S3] ^ATS,T&lAi^,iCBjMMh l6'J!l,~PncMdKvi(mihtH<J>eiaCDi]m, £«« 



not in BD actioi) brougkl ftgaiut Iijeq hava an; 
aid of ib« kid);,; for such a comiiMDdaient fliven 
to one that it n-A an officer, will noE any wayi 
avail faini, tliat u to justily bimMlf ^y tb« K- 
lurn of that commaadiuetit. 

SrB. 6, 10. If the king give vWathingiand 
I lake iheBame bj bis comniandmcnt tiy vord 
. of tnoudi, it is not justified b; Uwj nuUiing 
may pnu without matter of record. 

10 H. 7, 7. end 17, 18, it ia agreed. that jii»- 
li<^l ma^ commalld ooe to irreit anotber that 
i» iu tbcir view ur (jreaence, but not ddc that ii 
out of their view or pretence. (1 Croke. Hoi- 
lida; V. UieDbridec) 

And Keble 10 U. 7, 13, laid, that where one 
ii arreited bv a parol command ia iheir view 
or preKuca, it ii fitting that a record ma; be 
■Sado of it, insomuch, iliat without auch a re- 
cord there can hardlj be a jottificatioD in ano- 
ther temk. 

3. There is 



titej wi «*«rj of tboD 6nd wtetwc h) puniie 
tlietr augg«stioiM, and endure the aane pain a* 
the other thould have had ia caae that hit wfr 
gestion he found unmie: and that U>»i procew 
of the law heoiada acainat them, without bsiog 
takea or impiitons^ against the form of tlw 
MOW chaiter, and other statutes. — So that it 
appear* by the»e seveW atatuiaa, that aacb 



of the king hj 
hich, according to Calvin't 
case in Coke's 7ih Report, it ia caQed by him, 
' brere maodatum nan Tcmediabile;' and by 
Tirtoe of inch a coomnndment, the king may 
□either seize the goods of lus tubject, nor im- 
prison his bodjr, aa it is readied m 49 Am. pi. 
5r where it i> agreed by nil ihc justice!, that a 
commluion to take a man's good*, or imprison 
bis body, without indictment orsuit of the party, 
or other due proceaa, ia against the law. 

3. There a a commandment of the king, 
which is grounded upon a suggestion made to 
the king or to his council; and if a maa he 
coininitted to prison bv luch a tuneation, t^ 
commandment of the king, it is an&wfii^ and 
not wmronted by lh« law of the reabn. 

The 35 of E. 3, cap. 4, Da Proviaionibui, 
where ,it is caotaiDed in tfae Great Charter of 
the francliises of England,' ihat none shall be 
inprisooed or arrested of his freehold or of his 
A^uichisea, nor of his free cuatoma, but by the 
law of the land. — It ia awarded, consented and 
catahlisbed, that from bencsfotih none ahall be 
taken by petition or kuggeation made to oar so- 
vereign lord the Itinf, or to hie council, until it 
be b^ indictment or presentment of his good and 
Iswuil neishboura, where such deeds are done 
due maimer, or by procesamade by writ ori- 



itthe 



ir that 1^ 



be arrested of bis fmnchiae^ tior of bis freehold, 
unless be be duly briiuitht io, and anawar, and 
forejudged of the same by way of law : and if 
any thing be done agninst tbe same, it sbaH be 
redressed and holden for aouKht. 

37 £. 3, c. 10, although it be contained 
tbe Great Charter, that no nan b« taken or iiD- 
[visoned at put out of his fteatold, withoiM doe 
proceeaof tbekw; nererthelesi, diveta persona 
make false auggutwni to tha king hmudf, •* 
well for malice as otharwiae, whereby the kmg 
iioften grieved, and divers of dM lenhn put in 
great dunBg«s,o>nD:ary tstliefoimDrthesanM 

Wherefore it is ordamed, that all tbty that 
make such suggestions, be sent with their sug- 
geitiona to the CfaanGdior or Trcewrer, and 



upoD suggestion, either made to bim»elt or to- 
his cou»ctl, for the imprisonmant of a man, ar* 
against tbe law. 

f ouKhly, 1 find that there is a commandment 
of tlie king which is made under his hand) wiik 
lis signet ; for io 1 and S of Philip and Hkj^ 
Dyer 183, where the statnte of 1 Bic. 3, c, 11, 
restraineth the Warden of the Fleet for letting 
any man at large that ia in npoo judgment at 
tlie suit of any man, eic^t it be by writ or other 
commandment of tbe king; it was doubted, 
whether the queen by letter under her bud and 
privy-signet doth give eommandment to tb* 
Warden of tbe Fleet to suffer a man that is tber* 
in execution to go about hi) busioess, or the afc 
&ira of the queen; whether this be a wananU 
able command or not within the BtaUta: and 
ibe law bath always been conceived upoA thai 
book, that such acooimandmentia not warrwh 
aWe by law. And if such a. command wiU not 
serve the turn, to give unto a man hii libntyt 
which the law favo»reth, and had thecoonle. 
nance of an act of padiamau fot the doiag of 
it ; then I conceive it libould be a more stroi>g 
case, the king .should not have power by hu 
commandment to impriaan a map without due 
process of the law, and restrain him of Ilia libeitj, 
when there hod been so many acts of pa(li«- 
ment made tor the liberty of tbe aulgccu. 

Firtbly, I do find that there ia tlie command* 
ment of tbe kiug.whidiisby his virit under th« 
great seal, or the aeal of tbe QDurt out of which 
It issueth, R^iati f. 09, and 70. In the wiii, 

< De CBUtione admiuenda,' I find the words, 
' iiiandatum re^' expounded to be ' fareve 
' regis,' (ot the writ goeth : 1 Rei vie" aalatcm. 
' Cum ouper ad requisiiionem S. de Isle caii»< 
' nici Lincolne venen^iilie patria H. lincola. 
' Epiacopi ipso in icmatis agente vicarii gene- 
' laL per litem suas patentes nohis stgnibcan- 
' tea NiclM. B. diet. Lincoln, dioc propter 

■ manifintam contumaciam authcritata ipnn* 
' epiicopi ordinar. excommunicat, ease nee si 

■ velte, 6tc. vobis prsceperimoa quod prcfat. 
' &c. aatisftctum ex parte ipiiu* N. qui virtuto 

■ mandati nostri pnadict. per vos cafjt. «: Ift 

< prison, nostra de HeWBate detent, eiistit, &c. 
' nog nolentea quod pna&t. N. per breve nos- 

■ Irmn pnadict. via prsdudator. Sec. prosequt 
' posait in forma jniis masim. &c. integer csaa 

■ debeat, vobia ptsacipimus quod scire, &c. quod 
' ait, Slc quare pradwt. N. a prisooa pradict. 

■ deliberan Don oebeat, Rexjuattciar* suisd* 

< Banco saint. Cum n»a nuper ad significa- 
. ' tinnem 3. de Isle, &c. usque ibi excoinmant- 

' cat. exrilisse, nee ae valle, &c. easet aatisl«c> 
I* N. virtute mandati nottri 



9() ^ATE TKbUA lC«uui L iain.-n4ra«hti)r Sir T. Dmui, and oOen. [9ft 



<mc 4«tau^ Bu, ct aolentw «o pneleuii 
■pnbtoN. pcrbi**enMtru>'pmd.«uipn»- 

< cl»d». <]«o mnuit umUu. win u^Dtitun, &c. 

< pomMnU Mappalunt. itttut. 2w; per W«vc 

< Mtnun pwcBy M iBWfc pic&t. nc ^od icirc 
'ficecU, &c. tobn ligDifio. M ooMuk. ct oii> 
■monpocL in pUcitii per b«e«e predict comm 



' dm legem et connMadioun iqni ■oiui.' 

SaC 79, A E. S, G. a. 1 E. 3, c. 9^ witk, tbu 
(ittj Cq|HM b a pwaookl mctioa U • eom- 
wOMAmui. of the tuB^ fbr jt is < PMcipkMu 
' nbi qKid ca^uW)' &b and jct tha difeukiit, 
« thm it if Hid, ■ mienMbki by the eomnoo 
In. TK. 8tV>. Cabin'i CaM, nitbtTliat 
lk^tiMt<n>kuidoCwiiti,Tk. ' br«mm«Bd»- 
' una ct imn'riiriia, e( tftem in— dttnm m 
' iwniwritHJii.' finuaiMiidatofiaMreoM- 
4b^ we miti of ndrt, faiMd Ml, &c. dibti, 
kf^NMi^and ihortly «ll wiiteiealaBdi pw 
VhI, vberet^.tbe painjt wTonged is to kootct 
HMwbUi and lobe-rovediedfiir that wroi^ 
•hich iidpae HiCo htsh. 

faxtbh, I do find.^ om books of Ian, and 
\f the HmiMrr, tlwt tint special ' DtandaUiai 
I ^skIbI lep^' is eipoanded to b* tbis lait, and 
llM (he la« tahetboo BOlka of anif otfaer ■ a»- 
< dsli «anilMnni,' than bj. this writ. Tb« 
whitfa being so, whaa d)a rebsn is atada, ibm 
ts is,ieifri)oiMd and dataiDed in prison bj th 
tpHjsl.cemmwidaentof tbaltin^bowcan thi 
(ovt a^udga upon diis reMrn, that «r Johi 
Csthet oogbt to he kept in prieoa, and not to 
hbailed; «A«ndMBatnMof lteipeciii< 
■siHMWit ifciMt set fiwth in the reowp, »l 
\j it mm sw*" ""''> *^ ^"^^ ^l ^ ' 
bsiUikf la Bifcion. e. 19, llSt jvu shall 
' Pnscipimue tibi qood 
i pennittBs 



capitaUa j uiticiir' 
I is Rirew, < Qaia 



tri Aoglia replefiabilesexiafaut,Src. tunc iat- 
pos' C. &. n £. a ndsene predict. li ta occa- 
sioae. M dod alia detiiMimtur in eadem, iot*- 
rim deliberan (ados per maoucapt. supnditt, 
St hsbeai tibi tone coran pi^ht. justiciaF. 
Dwniaa BMUWCBpt. illocuDi «t fc«c breve.' 
Asd ibe ezppnuaii of tbii * tpeciale manda- 
tum domiai reoii,' meatioaed in thp Writ, i» 
eiponnded to Be ' breire domiai r^is,' and 
diereapoa is this writ directed natotlie ihcriff 
for ibe dtliTer^ of tbtm. — And so miicb for tbe 
first bfancb of the Snc pan : I cooclude, that 
tbe spenal comnand of the bng, wiibout shew* 
iag toe nalnre of the mmnandnieot of tliB kii^ 
is loo nneral, and therefera inMiOcient; for 
be oopw to have ratunwd the nature of die 
comnuHMiiBaM of ibe king, whereh; tbe coart 
BSgbt ban adjodged iukid it, whether it were 
nch acamniewdineBt that tJie impnaonmeot ttf 
nr John Codiet be lavrjul or not i and nhether 
it were such a conunandment of the king^ that 
although tbe iuptisoBineitt were lawfnl at fint, 
jet be night be bailed b; Ian. 

Aj«t as for tbe general ictain of < speciale 
' tnandaiMw domim tegif,' witboat ihewing the 
cause of the impriwsmant either apeGial or ge- 
i)«al, I bold, that for that canse also tbe return 



oeptioa of special 
i_ . ^ 

Begist. 

VI, the Writ of Hitnncsptioa goelh in this 
■uaer. : ' Kex vie. saluc cum nupar asiignn- 
• nrimns dilectna (£ fideles- nostros A. B. et C. 
' D. sd iaqais h ionea de fontaUariii, et tiaaa. 
lakibH coBira fbnnam siatali dadom 
WiuoD. editi in com. tno fodand. et ad 
qiwsinde calpabilet insenirent. capieod. 
1 pnsona ncctra salT« cnetod. faciMid. do- 
a&adind- ~ ~ 



<.iWq 



IB et ttanogres- 
- BoouHa aDoe conm pmrnf. A. B. ta C. D. 
' udict. fnerint, capt. et ia prisona de L. detent. 
* eiitt. i qua deliberari ikhi posiont, sine mao. 
'daio nustro speciali, nos lolentes eisdem C. 
'p.et£.^tiam in bac parte taoreipecialem, 
' tibi pracipiinus quod li pradict, C, D. ct B. 
' occatione pradict. et noo alia in prison* prs- 
li.. J..- 1,^ ^ pj^ tnuapeiiMonibos iltis 



Eitst, ia regard of the HabcatCorpiu, which 
ia tba eommandiaeat of tbo king only, nnda 
tbe latb of Novmiber. 

Accmding to tbe teste of the Writ, command- 
iog tlie keeper of tbe pate-bouae u have tba 
bodir ofur John Corbet, ' una ciua causa de- 
' tCDtioiu*, et ad subjicieiidimi e»redpiendiun 
' ea qnai coria aoitra dc eo ad tunc ibid, ordi- 
' nar. contingal' ;' so ns tbe conuDandnent of 
tbe writ being to abet* tbo cause of hie detain' 
ii]giapiisoo,th*k«efwrafthc Gate-hoete doth 
not give- a fall answer- uato' the writ, udIcm the 
cauieof thBdetnameat io prison be returned; 
and the ooort doth not know how to gire ibcir 
Judgment upoa biip, either for bis unj>rison- 
ment, or for hia disclmrge, accoTiting to the putt, 
pott of the lirit, wbea iberc is not a cnuie re- 
tamed. And forasmuch as opon an Eicont- 
meDgCMmt certified, it hath been ai^ndgcd 
(AentimM that certificates were insuificient, 
wbare the cause of tbe commiBiieot bath not 
been cettiSed ; that the court might adjudge 
wbetbir the ecdoMStical judees, who pro- 
aomwed tba eocomauiniaalioa, bad power over 
the ot^oal cajiie, aeeoniing to ihe book of 14 
H«a. 4, U, S. Rep. 68. IWIap's case, and 90 
Edw. 3, EioommcDgemcat 9. 

So upon an Habeas Corpus in this coart, 
where a man hatb been commiited b/ tbe 
Chancellor of BngUnd, bj the Council of Ei^- 
land, Marches of Wales, Warden oF tbe Stan- 
naries, liich-Comaiisnoit, Admiralty, Dntchj, 
Court of Retjoest, Coeunissinn of^Senera or 
Bankiopts; il hath several ikoes been ad- 
judged that the return «^ insufhcieot, where 
the particular, cause of iraprisonment hath not 
been Aewn, to tbe intent rhat it mi^ht appear, 
th«t those that committed him bed juriaclicCiDD 
over the cause, otberwise he ought » be dis- 



ST] , STATE TRIALS, a Chahles I. 1927 — Proaedmgi m lie Hahtoi Corpus, [ft 



cbBrge<l>b;r the Im* ; and I jpare lo recite p»r- 
tjcuttir CHUsei in every kind of these, becuiie 
there arew tu any precede nts of them in several 
ages of every kjng of tliis realm : and it ii an 
iotidlibie maxim of the law, That as the court 
of the KingVBench, aud Judge*, ou|;ht not to 
dcnv an Ilnbeas Curpus onto aoy pritoiier that 
•haU dciDRnd the same, by wliumsoerer be be 
couiitiitted; so ought tbe cause of his imprison- 
ment to be shewn upon the return, so that the 
court mny adjudge of (be cause, wheilier the 
GuuiL' >if the imprisonment be lantul or 
Aud because I will not trouble ibe court with 
ao iiuiny precedents, but such as shall suit 
the ciiuse m queiition, I will only produce and 
voudi such precedents, where the party wis 
coinuiitted either by the commandment of the 
king, or otherwise by the commnndment of the 
phvy-couiicil, which Stamford, fol. Ti. tcrmeth 
the mouth of the kinfi ; such acts as are done 
by the privy-council, beine as acts done by thi 
kinehimself. — And in all Uiese causes you Ghall 
find that ther« is a cause reuirned'ai w> " 

* a speciote mandatum domiui regis, &c 

* mandatum privnticonciliidomini regis,' where- 
by the court may adjudce of the cause, and hail 
them il ihey shuH see cause. 

In the 8lh Hen. 7, upnti return of an Habeas 
Corpus awarded fur 'the body of one Kogei 
Sherry, it appeareth that he was catnmiited by 
the ronyor of Windsor for suspicinn of fclony, 
and ' ad «ectam iptus regit pro quibusdam feli>- 

* nils et trBDser^onibus ac per mandatum 

* domini regis; SI H. 7. upon the return of an 
Habeag Corpus «tnt for the body of Hugh 
Pain, it appeared that lie was committed to 
priwn, ' per maodatum dominonim priraci 
' consilii aoioini regis pro suspiciam feloniEe.' 

1 Hen; 8, Rot. 9, upon the return of an 
Habeaa Corpus tent for the body of one Tho. 
Harrison and others, it appears that they were 
committed to tlte earl of Shrewsbary, being 
marshal of the houshold, 'per mandatum do- 
'. mini regis, et pro suipicione felonia*, et pro 
' houiicidio (acta super mare.' — 3 et 4 Philip. 
et Mariie, upon a return of an Habeas Corpus, 
sent for (he body of one Peter Man', it appear- 
eth that be was committed ' pro suipiciojie 
' felonia, ac per mandatum domini regis et 
' r^ina.' — 4 et 5 Philip et Marias,' upon the 
retitrn of an Habeas Corpus seat for the body 
of one Thomas Newport, it appeared that he 
wal committed t« ihe Tower, ' pro luspit^ione 
' contrafact' moneUe per privatum concilium 
' dumiiii regis et reginc' — 33 £lii. upon the 
return of an Habeas Corpus for the body of one 
Laurence Brunn, it appeared that he was com- 
mitted, ' per mandatumprivBticondlii domioE 
' regins pro diveisii caiuis ipsam reginam tan- 
' gent' ac etiam pro suspicione proditionis.' 

So as by all tliese precedents it appenreth 
where the return in eiiner, * per mandatum dn- 
'. mini regis,' or 'per mandatum domihotum 
. ' prtvnti coocilii domini regis,' there is also a 
cause over and besides the mnuialum return- 
ed. As to that which may be objected, that 
' per mandatuiQ dotnioi regis/ or ' priroii con- 



' cilii domini regit,' is a good rctnm of his im- 
pnionincnt, I answer, 

1. That there is a cause: tor it ii not lo bt 
presumed thai the king or couucil would com- 
mit one to pnsoa without some oSence; and 
therefore this ntaniiatiim being occasioord by 
the oSence or fautt, must be the cause, and 
not the command of the king or council, which 
is occasioned by fix cause. 

3. It appears that the jurisdiction of the 
privy-council is a limited jurisdiction, for they 
have no power in all cauiei, their power briag 
restrained in certain causes by several acts at 
parliament, as it appet^eth by the Stat, of SO 
E.3,c. 11.85 E. 3, c. I.Stat. 4. (vide 4 Instit 
p. »i.) the private petition in parliament pei^ 
roitted in the 1 R, a, where the comiaons peti- 
tion that the privy-council might not make any 
ordinance against the common law, cuslouu or 
statutes of the realm; the 4 H. 4. cap. 3. 13 
H. 4,7.31 H.6.' And theirjurisdicUMi being 
a bmited jurisdiction, the cause and grounds oV 
their commitment ought to appear, whereby 
it may appear if tbe lords of the council did 
commit mm for such a cause as was within 
ibeir jurisdiction; for if th« did command me 
lo be commilted to prison lor a cause whereof 
they bad not juntdictioo, tbe court ought to 
discharge me of this imprismiment. Anil bow- 
soever the king is ' Vicarius Dei in terra,' yet 
Bntcion, cap. S, fbL 107, saith. ' (jood nihil 
' aliuil potest rei in terris cum ait minister Dei 
' et vtcariuE, quam solum quod de jure potest, 
■ nee obsiat, quod dicitur quod principi placar, 
' I^Ih liabet vigorem, quia sequitur in fine iegi* 
' com lege r^a (juie de ejus imperio lata at ; 
' id est, lion quicquid de voiuntate regis temere 
' prabumptum est, aed animo condendi jura, 
' sed quod conulio ma^tratuam luoram rege 
' author, prKStant, el habita super hoc delibei»- 
< tione et tract. recL flier, detinit. potestat. 

which being so, then also it oo^ht to ^p*" 
upon what cause the king commilteth oiie w 

Srison ; whereby the judges which are indif- 
ircnt between the king and liis subjects, may 
judge whether his commitment be against the 
laws and siaiutea of this realm, or not. 

3, it is to be observed, that the king's com- 
mand by his writ of Habeas Corpus, is since 
the commandment of the king for bis commit- 
ment; and this being the latiercommandmeaC, 
ought to be obeyed : wherefore thai command- 
ing a return of the body ' cum causa detetl- 
tionis,' diere must be a return of some other 
cause than ' per maodatum domini regis,' the 
same comotandment being before the return of 
the writ. 

Pasch. 9 E. 3, pi. 30, fol. 56, upon a wnt 
of Cessavit brtiuebt in the cooniy ol Northum- 
berknd, the DeSndants plead. That by reason ■ 
of the county being destroyed by wnis with tlie 
Scots, king Ed. 2 gave command that no wnt 
of C'essnvit should be brouglit during the wara 
with Scotland, and that the tiiog had sent his 
writ to suroease the plea, and be avetretli ibU 
the wan wtth Scotland dill continue. 



W\ STATS TRIAI3, 3 Cimrlbs I. 1 ft27 — brought by Sir T. Darnel, and oihtrs. [SO 



UeaHc tiMt gimh the nil« niih, That we 
h«ve commBod t>7 ibe king that now i«, to '-'-* 
Ifais plei, wber«fore we will not snrceaa 
BOT writ of Ihe kingtliat is dead. And so upoa 
an these rewons &nd precedenia tbrmerly lA- 
Icdged, I amclade, that the ntum that sir John 
Corbet whs committed and detained in prisuD, 
'per ipecinle mandalum domini re^is,' without 
sbewii^ ibe nature of Che (ommsndinent, by 
which the coon maj judge whether the com- 
mandmentbeofiuch a nature as he ought to be 
delaiDediapriiod, and that witlioutsbewin; ' 
cause upon which the commandment ofcbe 
iigroaiided,is not good. As to the eeeond part, 
wiuck ■», Whether tbe time of the commilinent 
bj tbe return of the writ, not appearing UDto 
the court, the court ouglit to detain hiui 
priMD, or DoM conceive tliHt be ought not 
be continued id prison, admitting thnt the lii 
commitmeot b; tbe command of the king we 
lawlitl; jet when be bath coatinued in prison 
bj Bocb reaaooable thne, as ina]> be thought lit 
m that offimcc for whicb he is commiit^, he 
(w^ to be brongbl to answer, and not la c 
tiane still in prison without being brought 
answer. — For it appears bj the books of 
laws, that Ubertjp ia n thing so ftvoured bj die 
la*, that tbe law will not suffer the continn- 
taet of > man in prison for any longer time 
tfaaaof i>«cnsitj it must; and chererore the 
law will neither suffer the pnrt^, sheriSj or 
jadges to cantinue a man in prison bj their 
poaa- and their pleasure, but dolh speed the 
delirttj of a nan out of prison, with as ret 
able eipeditiaD a* may b«. 

Aad upon this reason it is resolved, in 1 & 
9 El. Djcr 175. & S Ed. 4, 13, ThU faowso- 
«ter the taw alloiteth that there dibt be a term 
between tbe testeofon onginal writ and the 
letBitiof the Mm*, where there is only asum- 
moas, and no imprisonment of the body ; yet 
itwm not allow tliat there shall he a term be- 
tween the teste of a writ of Capias, nnd the 
leram of tbe same, where the body of a mnn 
is to be imprisoned : insomuch that it will gire 
■o way, that the party shall have any power 
toomtintie the body of a man imprisoned any 
laager time than needs must, 39 E. S, 7. 10 H. 
7, 11. 6 E. 4, 09. 11 E. A, 0. 48 E. S, 1. 17 E. 
3,1.& 8 Hen. 7. 

KeUaWBy** Reports do all agree, that if a Ca- 
pias iball be awarded against a man for the 
appiriietiding of his body, and the sheriff will 
retnni tbe Capias that is awarded against the 
party, a ' oon est inventus,' or ibat ' laiigui- 
dns est in prisona,' yet the law will nlliiw the 
partj againM whom it is awarded, for (heavoid- 
mg of his corporal penance and duress of impri- 
KotmMat, to appear gratis, and for lo answer. — 
For the law will not allow the sheriff by his 
Use reinm to keep one in prison longer (hen 
aeols most, 38 Asa. pi. 39. Brooks imprison- 
oMDt 100 saitfa. That it was determined Id par- 
liament that a man is not lo be detained in 
praoB, after be bath made lender of his fine for 
aa impnsonraent ; therefore I dctire yoar 
Indibip that tir Jobo Corbet may not be 



longer kept in durance, but be discharged ac- 
cording to the Ian. 

X. C Juilke, Mr. Attorney, you hava 
beard muny learned Arguments; il'you be pro- 
vided to siisaerpnaeiitly, we will hear you ; 
hut if you will have a longer duy, for ihat you 
are not, provided to niigue, you miiy, we will 
give It you. 

JJiideridge, If yon will, you may tee tbe 
precedents ; it may be you have not seen some 
(if them, and we aiu»i see them too. 

Alt. Gen. (Heath.) Mnj it pleuseyour lord- 
ibip,tbe Kciitlemen that be of ciiunsel niih the 
knights at the bar, they have said much, and 
apokan very long for tbeir cliints, and to good 
purpose and pertinently. Tt is a caase that 
carrieth with it a great deal of weight, both 
towards lbs king aud his suNeclz nlso, and I 
am not so hasly lo put myBcltupon tbe main 
point' of this count, when it is almost time for 
your lordship to rise. 

My lord, ttie gentlemen have severally spoken, 
nnd given and insisted upon several rensons, 
and lliey have cited many preredents. I conld 
say Mimelhing of them at this present, and that 
some of them have been niistuken ; and tliere- 
fore I heteech jour lordsbip, that I may have 
time to answer, that I may not wrong itw cause 
of the king's part, or slight ih^ cause on the 
subject's part. 

But that which I desire to say now u, that 
these gentlemen have all uf tliero gone in one 
form, to divide tbe cause into (wo parts ; The 
lirst, the Form of the return. The second, the 
Matter of the return. For the furra, methinks 
we miiy put an end to that now, if your lordship 
please, (hat we may have no return (o that 
another day, bur I may apply myself unto the 
matter or the return. 

To (he Form of tbe return they have taken 
divers exceptions, but they especially insisted 
upon two main beads : Fir^it, 'That the Return 
IS not good, because it is not an absolute 
return. I coniesstbe ground is well Inid, nnd 
the innj or is good, thnt if this r«tum be not po- 
sitive) y the return of the Warden of tbe Fleet 
himself, but tlie relation of another, it is no 
good return, therefore I Deed spend no time in 
that, cbe giwind being well laid. But under 
your lordship's favour, (he minor proposition I 
deny, we difftr only in tliat ; for I say that this 
return is certain, and that it is not the words of 
any man dse, but tbe express words o( the 
wu-den himself, and that this is added tr ahin- 
danti to give satisficlinn to the court, that he 
had order lo make the return: therefore I de- 
sire your lordship to cast your eye* upon the 
lubstonce of the return, and diitinguish it into 
parts. The words are, ' Delentus est in pri- 
* sona sub custodin men per specialemnndatinn 
' doniini regis, mihi ugmficatum per Warran- 
' tuin duorum privuti concilii dicli domini 
' regis, Ac.' If he had turned these words, end 
said, ' Detent' est prout mibi significai' per 
' Warraiituni duornm privati concilii per spe- 
' ciale mandatum domini regis,' then it might 



m botb of hn 



SI] ETAl^ TRIALS, 3 Cuxues I 1027.— AMoniiqg* m S» 

be taken to be tbe wonliof llie lordi of the 
council : but tbe fint nordi bejng poiitire, 
* Detentua esc per ipeciale mBodatam domini 
' regis,' tint i» sufficient, and the rest ii lurplu- 
tue, and he.dotli uot lav, ' praut mlbi siKni- 
' £:at',' but ■ oiihi signmcat' onl; ;' nhich is 
absiilute, and the reiolulioii thereof cestath 
more in your lordthip'i eipoundinj; of tbe 
words, tlian in putliiif^ an; case upon tbeiu. 

Tbe second eicepnon ii taken to tbe Fonn 
ef the return, for that there is not the cause of 
tbe imprlsonmeat r«tur<ked, but of tbe detain- 
ing alone. Mj lord, I la; bo more at present 
to that, but this: no man is bonnd to sniwer 
more than that which is the content* of the 
vrit. But tbe writ it tna; be to knitir speciallj 
tbe raoM of the detaining, or what the cause 
«f tbe caption ii onlv, and if tbe officer make 
■nsnier to that which is required of him in tbe 
writ, it is sufficient. ' It maj be, there be pre- 
cedents both wBjs, I am sure tbere me for de- 
tentions, and [here is no cause whj the 
ihall shew tbe lime of bis commitment : but if 
the prisoner shall dutre it, your lordship ma^ 
grant him a writ, to Ehew the cause hot)' *'' ' — 
ciptiaii nnil deienlisn also. 

Tbirdlv, Tbej m? that this return ia 
tain, and tbkt it is the Warrant of the lorda of 
the council, and not of ihe king, by which he 
n committed. For that, m; lords, I say, thai 
if it had all been left out, and be had onljt 
■wd, < Detentus fuit per tpecisle mandotufti 
' domini regis,'tt had been auiicicnc : but when 
he doth more, it is superBuous, and not neces- 
sary, for it appeared before bj nhom he was 
committed \ and when he reluma the warrant 
of the lords of the council, it is not their words 
that commit him : but they being the represeo- 
Utive bodj of the king, they do express what 
the king's command is, but they signifj ttottnng 
of thair own ; and tbararoi^ I dewre your lord- 
rilip to deliver your opTnion in that point oftliC 
return, whether it be positna or no. 

Tbis cause, as it greatly coQC«nu the Sub- 
jects, so it much concerns (lie kin^teo. I nm 
sorry there should be any t>ecasion to bring 
these 'tbiup in question ; but since it ii now 
here, I hops I shall gire sausfaclioa to your 
lordship, and to the uarliea too, and I desire 
that I mav'baTe till Monday Ibr it, 

X. C Juttkt. I tliiak it is not best for us 
to dcckra our epinions by piece-meals, but 
«pon all the case together, and n you are a 
Stranger to the ratura,soare w«; and there be 
(oany precedents and acts of parliaracut not 
primed, which «« must nee. 

Dodtridgt, This is the greatest cause that 
•var I knew in tikis court ; our jndiinientH that 
we pie between party aud party, between the 
king and tho meanest subject, ought to be 
nuiturely advised on,, far so are the entries 
of ourjndunents, ' ^od ntatura deliberatione 
' habica,' It was judged, &c. And we must see 
tbe precedents mA acts of parliament tliat we 



tutet be now in fi»rce, and tbe geatloncn be 
not delivered by this conrt> how shall they be 
delivered i Applv yourself to shew et any other 
way to deliver t£em. 

boileridge. Yea, or eJie the; shall bat* a 
penietual imprisonmeit. 

jrn- Curiam. Monday was appointed fbr 
tbe Attorney's argument, and in the interim 
the Counsel fbr the genllenMn were by order 
appointed to attend the Judges iritb nU the 
pteetdent* and unprinled stMotet wlwch they 
itioned, and that they shoold tetddie Attoiw 



le again, answered 
they did, and a Hole was entered tor it. 

Monday, 30 IVorember, 169^. Tertio lit- 
chaelis, 38 Caroli Aegis, in Banco kegis. 

Sir John Corbet, sir Walter Earl, w JtAti 
Ueveniogham, sir Edmund Hampden, kni^ts, 
were bronght to the bar. 

Altomtv-Otnerai (Heath). May it please 
your iordsnipj these gentlemen, sir Jobe Ce^■ 
bet, ^ Walter £ail, sir John Hevetlngfaam, 
and sir Edmund Hampden, upon their motion 
to this Ceort to hive their Uabteas Corpus, 
and that themselves, and thecanse of their ds> 
taiiting tlicm in their several prisons, might be 
brought before your lord>hlp, had it gr&nled 10 
tbem. — Hy lori, at the Grst motion of it, the 
kDowledoe thereof coming, and tint Itaty liad 
such a desire, his majesty was very wiHmg l» 
grant unto tbem, at to nil hit snliiecti, thit 
case of justice ; and thonah it be a 



t he hath been so gracious aiMl so jtw^ as 

It to reliise to leave die essminatiaB and dt- 

rmination thereof (o tbekMrsof tUskii^dein. 

My lord, it is very tnse that rhh h ■ very 

great caase, and halb raised * feat eipceta- 

>•— and for tbe manner of it, more than wm 

ssnryj but, my lord, I am afraid thcae 

gentlemen whi>m it-concerns, have rather a(l> 

vised tlieir counsel, than thar counsel tbem : 

but I shall take the case as now I find it, and 

ns the gentlestien's counsel, on the other side, 

have led me the way to it. — The exceptions 

that have been taken by the counsel on tbe 

other side, to the retm-n made by the warden 

of the Fleet, and tbe rest of the guardians of 



Qns, have been tv 
bin's memory, w 
the Keiurns, ineyare all alike. 



uf your lordship's memory, we wiU read 



Then the Return was read ftiT sir John rfc- 
veningham, by Mr. Keeling. 

Altom^Gentrtt. Uayit ^eftse your lord- 
ship, against this return the counsel of the gen- 
tiemen have taken some exceptions, and bsve 
divided their ot^ections Into two main pointt, 
Ihe one tbe Form, tbe other the Matter. To 
the Form tbay have objected (bur several 
tilings: 1. That the return is not pasitivo, buC 
referred to tbe ligDilication made by aitotheri 
Bi the lords of the council. 9. That lb« 
keeper* of tbe pristm* bave DM tetnmed the 
cause oftfaeconmutmftit^ but tliecanie<tftb«' 



Hall one ; but \[ tbe return was io, tlial vat 
Mt much iDBterial, fur (liea it were bm tetnpo- 
nrj, aad it might be amenileil: but, my turd, 
they ha*e miuakea the loinar propDaition, for 
thcj hare tuken it as gnnted ttinC there is 
imperfect return from the lords of the coi 
□1. Uy lord, 1 shall intreat jou to CRSt your 
eyes apoD ihe return, and you shall find the 
fint words positive and affinaalive : the wnrds 
aie, ' Quod dMentut est sub cuatodia 
' speciate mandBtoni domini regis :' t 
wwds, * mihi amaificacum,' tbljow after, hut 
are lut part of the aifinnation made before it. 
But if ibe; will ha*e it as they seem to under' 
Kand it, then they most turn (he words thus : 
' Qood tetificalum,' or ' sigiiilicatum est mihi 



tbeu indeed it bad ual been tbeir own proper 
leturn, but the aignification of another, the 
lords of tbe coanut : tbe turning of the sen- 
WDcc will K*dK thii ptHUt; tbt thing itself 



speak for itself. 1 conceive by your lord- 
ship's tavoui, that it i) plain and clear, here il 
a positive return, that the deiaining is by tbe 
comninndnipnt of tbe king: and tlie rest oftbc 
return is mtlter for fiatislaction to myself and 
tiie Court, than otherwise any part of the re- 

Tiie second Objection hath dcpeodaiice upon 
this, as that he halh returned the cause of tbe 
cause, and not' ilie cause ilself, wliereio, under 
jour lordship's favour, they are ullerly mista- 
ken ; Ibr the return is affirmative, * Ego Jo- 
' hauaes Liloe testi&cu, &c/ 1 know that 
amon<( the logicinn) there are two causes, there 






then 






S3] STATETSIAIS, SCoAALBt I. liil^ ^-brought by Sir T.DaTnfl.mdothm. [34 

due, which i« not good. 3. That the return 
ii inperfect, for that it sliews only the cause of 
ibe detaining in prison, and not Uie cause of 
the firtt commitnient.~-Aad lastly. That the 
rttam is contradictory ip itself, lor [hat in the 
int^aitthereurthereiEacertifiealion thol the 
detaining of these gentieioen in prison, is ' per 
' ipeciate maodatum domini regii ;' and when 
the Warrant of the lords of the council ii 
shewed, it appetrs that the commilment ia 1^ 
Ibe command of tbe king, li^sDified by the lords 
«f Ibe' council : and by your lordsliips facour, I 
will give a several answer to every of these se- 
leral olijectioiis. Aud for the firat, that the 
lemm is not positive and al&naatiie, but de- 
. pendsupon and hath relation to some otlit^r, 
aad therelbre it is not good ; I do agi'ee Ihut 
iht ^tmnd is true, that if (he return be not 
pouore, it is not good : we differ only in the 
minar, that the return is not positive and af- 
inoatirc ; for I agree that these Book-cnsea, 
that have been put, are good law : as 37 Ass. 
fl. es, that if tbe abeHtt return that be had 
sent to tbe bailiff of the hundred, end be gives 
bin that answer, that is no good return ; for 
the sberiS' ought to make the return as of his 
owD act, wiiJiout naming of the baililT of the 
handled iu his return : tor if he return, ■ Quod 
' aaodavi balli>o itinenmti qui babet letorn' 
■ omnium brevium ei eiecutionem eorund' per 
'caitam domini regis qui mihi dedit nullum 
' Rsponium ;' thia is not good, if he were not 
htiliffof a franchise or ligniory, for so is 21 
B.T,fol.4. 

There hath been cited to maintain these ob- 
jections, SO Ed. 3. The record I have perused, 
and there I find that tbe Bishop said, that it is 
iiMod ■« nrcAivu, in the record, &c, that be 
was eioommunicaled ; hut it was fouitd to be 
taorcAtvu, &c and that is no positive retnrn 
thai it is ao. I will oppugn wiiat hath been 
said by the Counacl on the other side ; it must 
be granted that if the return here be not posi- 
tite,it is imperfect,andin5H. 7,38,iti>Eaid, 



rauisrithere in 
the hirdi of the council, for that is cauta cauia-' 
le : but the primary and original cause, which 
is couta causoni, is ' speciale mandatutn dorai- 
* ni rei;is ;' the other i9 but the council's signi- 
fication or testiiication, or warrnnt fbt him that 
made iherelum. 

To the ihird Objection, that the return is 
imperfect, because it shews only the cause of 
the drtainiDg in prisnn, and nnt the cause of 
the fim commitment : My lord~, for that I 
shall not insist much upon it, fur ihal I did sa^ 
tbe last day, which 1 must say again, it is sum- 
cient for an oSicer of the law to answer that 
point of ihe Writ which is in command. — Will 
yuur lordship please to hear the Writ read.and 
then to see, whether the wardens of the prtsoo* 
hate not made answer to to much as was in 



Th 



tail 

a the Writ not read by Mr. Keeling. 



Attorney-General.. My lord, the Writ itself 

clears the ol jection ; for it it to have the party 
mentioned in it, and the cause of his detention, 
returned into this court ; and thererora rhe an- 
swer to that is sufficient. Only, my brd, tbe 
warden oF the Fleet, and tbe rest of the keepers 
of the prisons, had dealt prudently in , their 
proceedings, if they had only !,Bid, that thrj 
were detained ' per speciale mandatum domioi 
' regis,' and it had been good, and they might 
have omitted the rest: but because, if they 
sliould make a false return, they were hable to 
the actions of Ihe party, they did discreetly to 
have the certification of tbe lords of tbe coun- 
cil, in suspicion that if this return was nut irue, 
tliey were liable to the actions of thew gentle- 
men. — In 9 H. a, 40, 44, it is aaid. That wliat- 
soever the cause be that i> returned, it must 
be accepted by the court ; they iitust not 
doubt uf the truth of th* Return, an'l the of- 
ficer that shall return it is liable to an action 
if the return i« false ; and therefore the guar- 
dians tif the prisimsdid wisely, brcnuse tliey 
knew this was a cuse of great ei|>ectHti<)n, to 
shew from whom they had their Marram, and 
so to see whether the caiiae he true or not. 

The last Objection to the Return is, th^jt it 
is contntdictury in iuelf, ns that the firtt part 
of it is, that tht^ are detained in prison ' per 
' speciale mandatum domini regis ;' bnl in thia 
relation of il, it thews that tbey are detained 



85] STATE TRIALS, 3 Crarui \ 1 (iQ7.—i'roixedngt on the Haheat Corpta, £80 



by tlie comnuind of the lords oF the rouacil ; 

fur the words of their WarrHiit ace, to require 

S3U stiil to detain him, &c.^Hur, my lord, if 
»y will b^ ptcused to see tlie whule Warrant 



in ihai wumant, but they say ihiit you are lo 
take notice of it, as ilie woids and commuid 

of tliB kii.g ; for, iiij' lord, tlie lurda of tl>e coun- 
cil are tlie Krvuili to the kin;, they signify hli 
majesty's pleasure to your iurdship, and ihey 
Bay it is Iiis iiinjeity's pleasure <fou tliould 
know [hilt the firat comniitincnt, and this pre- 
sent detaining hini in prison, are byiiii mi>jc»- 
ty'9 epecml conimanrinient. — And tliit, my 
lord, is all lliat I mil say for the sutSciency ai 
the Form of the return, to prove that it is sidfi- 



Toucbiiig the matter of the return, the main 

taint thereof, it is but a single question, and 1 
ape, my lord, of no greiit difficulty ; and that 
b, whether tliey be replevissble, or not reple- 
visahle ? ll appean thnt the commitment is 
not i'l a \es.a\ and ordinary way, but llint it is 
'_ per sptciale manilatum domini regis ;' which 
implies, not only the fact done, but so extra- 
ordinarily done, that it is notorious to be his 
majeslf's iiniacdiate act and will it should be 
w> ; wfjelber in this case they should be baila- 
ble or nut in this court, nliieli I acknowledge 
to be the highejt court of judicature for such a 
case as is in question. 

The counsel on the other side desire, that 
they may be bailed, HTid have concluded thnt 
they may not l>e remanded ; their grounds of 
argument, though they were many timt <lid 
ipeak, f have m my Collectiuii divided into 

The firat was. Reasons that ibey must be so. 
arising fnm the inconveniences that would Ikll 
ti> the auhjecis, if it should noi be so in the 
mam pointsofilieir liberty. The second was 
they ;lie<red divers uuihorities out of their 
law-bnnks, which they endeavoured to apply. 
Tiiethlrd «ai, Ti.e Petition of the Commons 
ansueied by several tings in parliament. The 
fourtb was. Acts of PDrUament in print. The 
la-st wiis. Precedents of divers limes, which 
they alle<t):cd t« prove, that men cummiited by 
the kind's commandment, and by the com- 
in''ndment of ilie lords of the privy-council, 
(which I conceive tu he all one, for the body 
of the privy-cniincil represent- the king himself) 
that upon such commitiueut in such csubes 
men bad been bailed. 

In (be CLiurse of my aipimenls I will follow 
their mttiiod, lirit, to answer their Reawnt, 
and rheo those Books wliirh they have cited, 
which 1 conceive to be pertinent to this ques- 
tion, niid t)icti the Petition and Ansver made 
is parliament, and ihen tbeir Acts of Parlia- 
ment, ncvt llii'i. Precedents ; and tastlf, I will 
give lour lord&liip »'<me reasons of my own, 
which I hnne shall suflicieatly satisfy ynur iord- 
Bhip I'l.l all otlii'ra, but the parties tlirmsrUes, 
fori tT;rept them. 

My lord, the threat aiid mighty BeasoD tiiu 



they inniated upon, was the iiicunvenietKM that 
might come lo the subjects in their liberties, if 
tiiis returo-should be godd; and this reason 
they inferred out of records and books of the 
coDimoB law, which gives the liberty of the 



subject, but yet it is their inberi- , 
Utnee wcundum legem terra. 

My lords, they put many Cases likewise to 
enforce it, 1 aud 3 Eliz. Dyer, To. IT^, (bat the 
continuance of a Capias shall he from term to 
lerm, wi^ut a term betwiit, because olli«r< 
wise tbc party defendant may be kept too long 
in prison ; and 38 Asa. pi. 93, Broke tit. Jn- 
prisonment 100, that imprisonment is but to 
detain the party till he have made fine to tbe 
kini, and therefore . the king cannot justly de- 
tain hiiu in prison after the fine tendered ; and 
IG H. 6, monsirana da faict 183, if the king 
command roe to arrest a man, and therrapoa 
I do arrest him, he may have an at^on of &ls« 
iniprisonmeat, or of trespass against me, thongli 
it be done in the king's presence : and 1 U. 7. 
4, tbe discourse afUussey, where he saith, that 
sir John Markbatn delivered unto king Edward 
the 4tb, that b« ahould not arrest upon treaaon 
or felony any of his subjects, becaose he could 
not Krong hit subjects by aucb arrest, for tbey 
could not have remedy against hiM. 

These, ray lord, are tlie Causes tliat they in* 
sisted upon for this purpose. To the two £nt, 
I shall give but one answer; which is. That t)l« 
nsinuntin these two cases, and mosi of the 
other cases before cited, appears to be is the 
ordinary coutse of judicaCure fit for Westtnia. 
Gter-hall, and not for tbe king's cooDcil-tatfle. 
A writ of Capias was tt>e firM orixinal of it, 
and therefurc not to be applied to the c«as« of 

And for the other two cases, the law pre- 
tumeth that the active part ul- ihew is not to 
proper for tjie mB)esty of a king, whoever doth 
these tilings by his subordinate officers; but 
that the subject should not ha commicwd ,by 
the king, was never heard uf, for Che kioE mttj 
couimit any man at bis pleasure; bat that is 
net our case ; hut whether when the king hath 
committed one, he must render ■ cause oflhU 
commitment, that it may appear wbetber the 
pally be bailablcor not, or else the party niwt 
hc'delii-ered. 

The book 9 E. 3, fol. 16, pi. 30, ct(«d of* 
Cessaiil, I lie king having by proclainatjon com- 
manded, that in the county of NortkumberUnd 
no Cessavit should be brought, Ac. during tbe 
war ; the tenant pleaded tins command, and it 
was denii d him, and lie, notwithstsndtog thet, 
was comiminded to plead ; hut ibe reason 
t! eteuf was, because 'be commandment thereof 
was given by E. a, who being dead, the com- 
mnndmeiit was determined. 

The Book of Edw'. 3, 4 ful. 16, is indeed, 
where the commandment wasfirenbji tbe same 
king, and that was likewise denied him ; fw 
the king cannot command youi lordship, or any 
other court of jtiuice, to pftKwd <' 



ST] STATB TRIALS, 3 Cbablbs I. J6S7.^irtiiglubySirT.Z>anitt,mdo(hat. [35 

My lord, the main fundamental grounds of 
nrgumrnt upon thia case begins wit)i Ma^^na 
Charta, Trom thence have grown st<i(utei Tor 
exptaniicmn tbereot', eeveml I'etiiioiis of'par' 
liainem, and Precedcriis for eipeditHi" ; I itiait 
giTE BOswers to them all. 

For Mngna Cbarta, in the 39tb cliapter, hntn 
these norils ; ' No freeman ^fantl be tnkeii or 
' imprisoned, or disseised, of his freehold libera 
' tie!, nor free customs, Bor be outlawed, or 
' exiled, nor any other way destroyed, nor wa 
' irill not pass upon him nor condemn biin, but 
' bj lawful judgment of hia 'peers, ur by the 
' law of the realm.' — Mj lord, tins statute batb 
been many times conhnned; the lord Coke 
Dnmhered up the number to he'aboui iwentj; 
and we are to conclude on this, it is the foumui- 
tion of our Liberties. 

No freeman can be imprisoned but bj 
' leK^te judicium parium sugrum,But per legem 
' terrz,' But will they have it understood that 
no man should be conimitted, but flrst be shall 
be indicted or presenwd? I ihink thnt no 
learned man will ofFer that; fur certiunly there 
is no justice of peace in a county, lior consta- 
ble within a (own, but he doth (Otherwise, and 
might commit before an Indictment can be 
drawn or a presentment can be made: what 
then is mennt by these words, ' Per Irgeia 
' teme?' If any mm ibatl say, thia doth not 
warrant that the king rnay for reasons moving 
him commit a man, and not be answerable for 
it, neither te the party, nor (under yojr lord- 
ship's favour) unto any court of justice, but to 
tlie High Court of Heaven ; I du deny it, and 
will prove it by ourStatulea. 

My lord, it wa» Urged by the counsel on the 
other side, that our printed Magna Churta, 
which saitb ' nee super eum mittimus,' is mis- 
lakcn ; and tbat in divets Manuscripts it is ex- 
pressly set down to be, ' nee euin in carcereis 
' mittimus.' 1 cannot judge of the Manu- 
scripts that i have not' seen ; hut, my lord, I 
have one here bj me, which mas written nianj 
yenrs ai;o, and the words m print are word for 
word a« that which is here written. 

Then they say, that Mjlihew Paris sets it 
du»n so in his Historv : Aly ionJ, we do uoC 
govern our^eives by Chronicle, but to answer. 
that of Matthew Paris, he reports a thing done 
in king John's lime, but it was then but thought 
on, and it wus enacted in the time of Henry 3 ; 
■lid ibere be many things said to be' done in 
Matthew Paris which were not, and tiuiny 
things omitted hy him which were done. Thi* 
Charter was bat in election in the time of king. 
John, and then it might be, ' nee eum in car- 
' cf-rem mittnnns;' but It was not enacted till 
the time of Henry 3, and then that was omitted, 
and ihe Charter granted as now we have it. — 
But if thev do sea no more than 1 in tkii 
Clause, I know not why we shnuld coniand. 
about the>« wnrHs, seeing the tirsi p;irt of thia 
Statute saith, ■ Nemo impnMne'ur.' why ihea 
may not I suy as »ell, ' nee eum in carcereui 
' mittiniuif I iCf nu differ;>nce in ilit wntili, 
mj lord, I (ball not iutin auj 



;o the taws of this kingdom ; 
for it is put of your lordship's oath, lo judge 
tcctNding to the law of tbe kingdom. But, my 
k>rd, there is a great difference between those 
legal csmmands, aed that iJnoluta potetlt that 
■ sovpTv^n hath, by which a king commands i 
bat when I call it siioltita poteilai, I do not 
■nn tbat it is such a power as that a king may 
do >hBt he pleaaeth, for he bath rules to govern 
hiaiselfby, as well a) your lordships, whi> are 
mbonliDBte judges nnoer him. The difference 
B, ibe king is the bend of tiK mme fountain of 
JtEUce, wLich your lordship administers to all 
hii Mhjects; all justice is derived from him, 
and what he doth, he doth nut as a private per- 
son, but as the liead of the common wealth, as 
jutitiarmt rtgni, yea, the very essence of 
Janice nndcr God upon earth is in him; and 
ihiil] Dof we generally, not as subjects only, but 
as Iswjers, who govern ihem-ielvei by tbe roles 
«f the taw, submit tO his commands, bat make 
inquiries whether they be lawfiil, and say tbat 
tbe king doth not this or that in cmvrse ofjus- 
tioe? 

If your lordship sitting here shall proceed ao- 
nnding to justice, wtm calleth your actions in 
(pestion, except there are some errors in the 
proceeding ; nnd then yon are subject to a wrjt 
of error. — Bat who slutl call in question the 
actions or the juttice of the kinf;, who is not to 
five say account for them f as in this our case, 
that be commits a nil^ecl', and shews no cause 

Tbe king comniito and often shews no cause, 
for it is sometimes generally, ' Per speciale 
' mandatum dumini regis,' sometinies ' Pro 
' cenis causis ipiuin dominiim regem moventi- 
' bci;' but if the king do this, shall it not be 
tvidi It is all one when the commitmeiii is 
' Per speciale mandatum domini regis,' and 
when it is ■ Pro cenis causis ipsum domiuum 
're^piD mavcrttihuB ;' and it is tbe same if the 
CDminiin^eiit be ' Certii de causis ipsum domi- 
■ Bum regem tangentihus.' 

And, my lord, unless the Return to you d<)th 
open tbe secreU of the commnmeflt, yuur lord- 
diip cannot judge whether the party ought by 
liw to be remanded, or delivered ; and there- 
tire irihe king allow and give warrant to those 
ttoi make the remm, tbat they shall ei press the 
cause of the commitment, as many times he 
'otb, eitber for suspicion of folony, or making 
naMT,or the like; we shall shew your lord- 
dip oiat m these causes this court in itsjaris- 
didion were praper to try thttse criminnt causes, 
ud your lordship doth proceed in them al- 
thua|b the commitment be ' per specinle man- 
I datan domini regis,' which hkth not a secret 
la il in these causes, for with the warrant he 
Nndtth yonr lordship the CBa«e of the commit- 
tisg; and when these warrants are made and 
maght into this comrt, your lordship may pro- 
Mcd: bol if there be no cause ripresseil, this 
<Mit hath nTwtiys used to ramand them ; for 
it bath been used, and it is lo be intended a 
miter of state, and that it is not ripe nor 
■bdy for it to f/fvat. 



STATETRIALS, 3 ChablmL l&^.—I'nxMUiigtmtrxjrabeatCorpa. {*» 



loneer upob tlie lileral expotilion of the words 
of Miv{Q!i Clinrta, bui I oill resort to ihe rpsi 
ofil, which b etprestiii the subsequeot statute 

The Cunsel on ibe otlirr side snid, that die 
ItOlUte of 38 E. 3, C. 3. exprenelh and giveth 
life to this (Jharter ; I sliall desire to biive that 
Statute reail. 

Krelinx, Clerk. Item. ' Wbrre«* it ii con- 

• tujneii in the Grent Clmrier,' &c. (Vide all 
these Staiules in LitUetou's Argumeut in Par- 

Allurneg Gentral. Mj lord, ihe reulin); of 
this iiatute will i>i*e aO'-'iir to it ; for it ia ap- 
parent li^ the nurds thereiff, nQ.iesliallbetnlieu 
by Feiiii.'ii, &«. and that the court be eitend- 
M 10 the fir^t iirre»i, but tl^jr are ta be uuder- 
»too(l that noii« shiiU be condemned, but he 
ihull he brougiit lo s'l^wer, und be tcied. And 
if it be eipiunded ntlierHisc, it «i!l b^ contrarj 
to that practice which was tiiea in use. — But it 
is uiietly forbiildeii hj thi' Siatuie, that any 
man should be cundeiuned upon iupiirstiniis or 
pctitiOK^ wade to ths king nr cnuiicil, without 
due trial by law. — The ncii Sialutc-tliuy cited 
trns S5 E. 9. cap. 4. My lord, 1 desire ibat 
that m.ij be read. 

AVrfiop, Clerk. luni, 'That no man, of 
' what estate or cundiliun soever he lie, shall 
' be put out of lauii iir teneiuent, nor taken, 
' nor imprisoned, nor disinherited, nor pot to 

* death, without being titoiiglit to aiisner by 
' due process of law.' 
' Altomry General. Mj lord, this Stati 
intended to he r linal proieculion : for if a 
■ball be iinprisoued without due proceM, and 
never be brought to onsiter, tliat is unju>l, and 
forhiJdeii by Uiis st^itute; but when a man is 
taken in causes ihut are unkiiuwn to us, (who 
walk below stairs^ we are not privy to ilie c' 
cunistancet wbicn may cause the trial to 
delayed ; and perndteniure it is not time 
brin;; tlie matter to tiiid, because it is nut i 
come lo maturity, end tberifore tlii« is i 
within the meaning of the statute. — Another 
Statute thut they mention is in tli« same 
sud it is page 9. ch. 9. 1 desire it may be 

Kreling, Clerk, Item, ' Because the Peo- 
' pie 9f tie realm, &c.' (Vide Littleton's Ar- 
gument poifca.^ 

Atioraev General. My lord, it is »eiy clear 
itBtute had no Dutiin.r of thought M 
n question ; but whereas >hcriSs did 
.procure commissions to he awarded to theni- 
sclves tor their privBte gaiu, to the prgudice of 
tlie subject, tlie siatate condrraneth ilu'sr com- 
mission!', but it maketh notliiug to this question 
which we have now in hand. The neil Sta- 
tute nhlcli they tiled, wns 37 Ed. 3, cap. 18. 
I beseech it miiy be read. 

Ketlin^, Clerk. ' Item, Thoueh it be cou- 
■ laiued iii the Great Chaner/ Sic. (Vide as 
■foresaid.) 

Auorniy.Gentral. My lord, this Statute 
seems to lie a c»mmentiiry and lij^ht to the 
utherStatut«s, the scope nbcceof is against pi' 



that this 



e committed 



stiggeitions mode to the kiog or bi* CMin- 
cil, and itot in a legal way, nod thetetore >t 

idemns theu; and tliia is more liilly ex- 
pressed in the Statute of 38 Edw. S, tap. g. 
whicli they like wise, mentioned ; By which sta- 
tute direction is given nhat security, tliose per- 
sons which make such suggestions are to |ei>e, 
that they should prosecute tlieir suggeslionk, 
and what punisliment they shall undergo, if 
their suggestions be found false. 

Ketliug, Clerk. ■ Item, As to the artidt 
' made at the last parliament,' &c. (VJdeasbe- 
fore said . ) 

Allomry Gfticnl. My lord, this and the 
last Statute srem to conduce botli to one pui^ 
pose, that ibev that in tlieir accusations wcat 
not in a le^l way to biioft the party to his an- 
swer, it <riui directed by this st^itute, that they 
sl^ould go a legal wny.— The last act of parlia- 
meoc in prim, the caunse! on the other side 
produced, was tlie Statute of 1 U. 2, cap. tS. 
which I desire niay be read. 

Kaling, Clerk. ' Item, Whereas di.i 
' people at the suit of parties ■ 
' the Fleet,' &c. (Vide as before,) 

Altonry General. My bid, it appeareth 
that the scope of this Statttte is against the 
Warrieus of the Fleet, for some iniscBrnTiges to 
them; but tliere ii one thini in this Swtuie 
which I shall desire your lordship to observe; 
and that is, for iliose nuHleimcanoii he nhall 
forfeit his olfice, ckcetit it he by writ from the 

new doctrine in tliose limes, that the kiii; 
miKht then give such commandment lor cuiii- 
mitiing, Ilie scope of (his Statute had two 
hands: 1. Thatilie warden should forfeithis 
office ; and, 2. That he sluuld recompen** ^^ 

In the 4tli and 5tb of Phil, et Mar. Dyer 
16a. it was resolved. That if the Warden shJl 
deliver ii (nan out of prison without command, 
he forftiteth bis office, and damage unto the 
party ; but if he have the command of the 
king, thai shall eicuaethe forfeiture of his ol- 
fice : but he must bring the party hiilier,and 
here Ihtse gentlemen are now, for that com- 
mandment of the king is no exception for him 
not to observe.— If he receives a writ from ihii 
court, to shew the court from whence he re- 
ceives his warrant, it may excose the fotleiture 
of his ulh'ce, hut notwithstanding he is subject 
to the acti"n of the party. 

But ! desire yeur luidship to observe that 
part of the Statute, which the other party would 
nnt make use of, whicj is, that tlie kiuR may 
command Ly writ or utheiwise ; these were all 
the printed stalales cited by the counsel on the 
other nde. But because I would not misinter- 
pret these statutes, 1 thought it equiil to. desire 
your lordstiip that they might be read. Be- 
sides the primed Statutes, they meniiuned Pe- 
titions by tlie commons, and the Answer* lo 
them of several kiiigsin parliament. The first 
is. Kot. pi. 6 VJ. 3, narnero 1 et 90 i besides 
these two, there is one other of S8 Ed. 3, n. IS- 

My lord, of tbese three Petitions and tlieir 



41] STATE TRIALS, SChauvsL lG27.-*r(K^ kf Sir T. Dmd. aid dim. [« 



Ammo*, tbc two fintwece meniKHkcd bj the 
omibkI od ib« otber side ; Bod tlmt in 38 Ed. 
3, SS, 1 haTS piDdaced, «11 of tiiaa CTcn to one 
pvrpuse. The commons tim pnilioned th« 
LiibilMall the'StatDlei ii»de in eipotiiioa 
dT Migna Charta, aSd ot the forest, ub; b« 
kept mud otnerved: the kio^ makes Amviei, 
ibu it iball be dooe. And lo one of the An- 
•wen it ivsaid. If anj mnn be grieved he miy 
nmplufl. But wLm it all this to the pobt in 
qomioiip Could there be anj other Auiwertu 
(ire lite to tbese request^ i The king he ii p«- 
[HiuDcd that some are injured ; he answcn, 
ntL if ibej compiaiii, the; aliidt be relieved. 

And Don, my lord, we are where we woe, 
' to £ud out the true meaning of Magna Charta, 
for there is [he foundatioa of our case ; all tliij 
Ehic Lath beeo said concerneth other things, 
and ii nothing lo the thing in quettioo. There 
iiDsta nnfd either of the cammioneot of the 
king, ur ciKmnandaienC of the council, in all 
the Statutes and Ilecords. 

And now, aiy lord, I am at an end of those 
Stituies, and come to thnt thai iviis aUedced 
ud mentioned to be in 3 D, 6, 40. and if I 
cwild have fuund it, I would have brought it, 
but 1 could not fiiid it; there(i>re if they have 
it, Id«sire that the; will sbtw it, but I tliiiik 
tljc; hate it not, and therefore I will Jet thnt go. 

iij lord, I come to that which I insisted 
nppn, the. question aa it was at lirsl, not whe- 
tkn iheting or the lords of the council can 
cDBwut a nan, and shew no chum wherefiire 
ihej do commit him ; hut whether the ordinary 
coDcbof jintice hnve power to bdil him or no; 
far that I will inwit upon ibe Statute of Westm. 
Luhicb i desire yoiu lordibip may le rend, 
ssd then I will apply, (vide We:,tni. priino.) — 
Uy lord, this Statute, if I misunderstand it nnt, 
iltfuU expression to the purpose of AInipia 
Ghana; the scope whereof ii to direct u» in 
what cases men imprisoned were tn be bailed. 
It was especially for direction to tbe sheriffi 
ud others ; hut lo sny couKi of justice are 
ndoded from this statute, 1 conceive it cannot 
U. It recites. That whereas heretofore it wai 
not reiolted in what cates men were replevis- 
abk, and in what case* not, but Only in thene 
four cues; fur the death ofaman, or by the 
cuounandutent of the king, or of liis justices, 
aroTihe lljrest.— My lord, I say ihat this sta- 
tateKprasseth not th« law was made by thii 
Itilute, thai ill these cases mim were not re- 
plniMhle; bul it cxpmMih that the law was 
dear in tliese cases ; in these four cases it was 
deady resolved before. 

Ifi«y you, my lord, obterve iIk time of the 
onkiBgof this:i'latute; tiat of Magna Chnrta 
wu made in tl.e time of Henry 3, and thii uf 
Weiiminster in the time of Edw. 1, so ibat it 
wasniade in the time of the same. — And, my 
k>rd, if ibey had unilersiond the atntute of 
Magna Chwta in another lenw, would they 
Bot haie expressed it so in this statute 1 Wu 
it not fitter for tbeni than f^>r us, they being 
aurcr th$ fint making of Mas"* Charta than 
m arc i But certjuiilj lU bMtitte of Magna 



Charts was expomded at (be time, as I Jm*« 
shewed bel'or*; if not, without all doubt at tlw 
time of making of Westm. prima. 

The pariiament would not iiave been so 
careful to provide for things of lesser monent 
and omit this of so great consequence, il thera 
bad been any queauon of it. lo all times and 
agts. Magna (Jhaiia hath been coofinned, bul 
tliey shew not any one law tliat doth except 
against thi) positive Uw of Westmtntter the 
tirst, or uny acts of parliament ; nay ^ore, ia 
any pHntod Books, that in Uiis case men should 
be replerisable. 

My lord, if you know nothing printed or no- 
printed, if any will deure lo alter a course that' 
always bsih been held, you will se«k for Pre- 
cedents, for the constant use and course it tha 
best exposition of the law; it is not enon^ 
for me to say. This it is, uolesa I make it good. 

First then, I say, they on the other tide 
cannot cite One Bouk, Statute, Or ottier thing, 
to prove, that they that haie been committed 
' per specinle mandunim domini regis,' are 
bailuLle. But, my lord, I fiud same lo tha 
contrary, that they ore Dot bailable, and 1 will 
cite some uf tliem, and read uf ollieis; for I 
would not in a case of that expeciaiiou, that it 
should he thought that any thii% siiould be 
misinterpreted. 

In the 33 Hen. 6, f 33, Robert Poyoing'* 
Case, he was committed ' pro ditertis cnu»i* 
regedl tangent" ;' this altera 






:, for i 






ae, f'lr 



the Warrant ' dt 
is no question upon this : but, my lord, 1 know 
lliis is not the point in onestiuo. 

'Ihe next thing 1 shall shew unto youT lord* 
ship, b Piuch. 31 Edw. 1, Hot. cla. 3, and this, 
tnylont, was near tlie lime of making of th« sta- 
tute of Westm, 1, and this precedent is lo this 



both those shireii)did receive commanduiem by 
letter:) train tbe king. That whereas die earl of 
Warwick had comniauded ilivers persons in the 
custody of the said sheriff, the king sent a letter 
to the saiit sli«ri<T, commanding, that to those 
who were committed to bis custody by tlie earl 
of WafwiL-k, he abould shew no grace to ihem; 
that is, they should not be bailed.— The sheriff, 
notwitlistnndmg this cummniid, lets some of 
tbo'C prisoners lobiiil; whereupon he was com* 
plaint of in pmrliamcnt, that he bad dona 
iigainst the king's comroaudmeut, and be war 
condemned for Ji. 

This was in parliament; I wonder this should 
be done in parliament, and that it wjs not said 
there, that this commiUutnt, beiuj; done by the 
king's commandment, was not good ; no, be 
was condeiniied in parliament, f>ir it was on* 
that did break the statute of Westm. prim. 

My loid, the use tli:it I make of ibis Ht.'cord 
is this: It reciies, thnt the earl of Warwick 
commhud dive's, it might be ihai be did cota^ 
mit tliein by direction from (he kin.: ; but tbe . 
record menliinetli not so much, but it shews, 
that the tang by letter* coumuKled the shBriff, 



43] STATE TIUALS. 3 Chaius I. 1037.— iVooecla^ on lit HiAtm Corfu/, [44 



Mut he ■bonU sbew thme pmons no grace, 
Wi4 ;el he did ; be wn cxanined apon lh», 
and by pirliameni committed. 

IWiKit mailer I will rfffer to yom- lordship's 
judgment for the true ei)>o)ition of the law in 
thb case, is the Book we call The Register, od 
WJthsrity respecceit, it is the roDndatian of all 
auf writs at the commoD la* ; I bring not the 
book. Ib this book [here l« oiie writ enith [bus, 

* Rex, &c. Quad repiar' fiic' A. nisi tuenl per 

* Specude nandalum dommi lept.' 

JuaCice Doieridgr.. In what writ is that 

* De homine replegiando f 

Attorn. Gftt. Yes, in the writ < De botnint 
*rep)«fituMlo;' and there is anoiherwritdirect- 
cd to UK comtAble of Dover, in the very gnmi 
words ; by which it appears that they that are 
■npri»oiied by the king'd comioand, ' non SDiit 

* replejiabiles.' Mr. Fitzberbett, agravejud^, 
wid IS in ajitboricy with us, penisinc these wnis, 
«iprea9ed ti in tbtse words plainly : " There 
«ue MWie cases wherein n man cannot have this 
writ, alihougb be be taken and detained in pri- 
•on; US if he he taken by the death of a man, 
•r if he be taken by the Commandment of the 
king's justices;" and mentions not CMefJaft- 
lice ; wkich I brliere is to be intended not of 
(he chief of the court of judicMore, but of the 
chief justice of England, far there was such a 
-oae in tho^ days. Thus, my lord, jou eee the 
opinion of Mr. Fitxiierbert in this cme. 

Tlie n«t thing, that 1 will she* your lord- 
Chip, is tne opinion of Mr. Stamford, in hisPleas 
of the Crown, fol. 78, where he sets down ihe 
Slatuteof Westminster primo, and Chen ha adds. 
That by thiiit appears, that in four cases at 
the common law a man is not replevisahle ; in 
tbnse that were taken for the death of n man, 
or by Che comraandnicnt of ihe king, or of his 
justices, or of the forest : and there he saith, 
That the comnuindment of the king is to be in- 
tended, either the commandment uf his mouth 
or of bis council, which is incorporated to hko, 
and speak with the mouih of the king. — My 
lord, I shiU de>ire no better commeniarics upon 
a law, than these reverend grave Judgps, who 
have put Boi>kj of Law in prinr, .iiid such 
Books fis none, I beliere, *ili my llieir jud^ 
ment) are weak . 

The noxt thjng I shall offer unto your lord- 
diip, is this. That 1 cannot shew with so great 
Biithnrity as 1 have done the reet, becaase I 
have not fhe thinn itself by me ; but I will put 
it to your lo^d^hlp'» nxoiory, I precume yon 
nay wellremeinbGiit; it is the resolution of all 
tlieJudses,«hich*HsfpTenin tlie34tbofqueen 
Xlimbeth, it fell out upon an unhappy occasion, 
which was thus: (he Jni^et they complain that 
Sherift anil othi'r officen could not execute the 
process of the l.iw as they ou^ht, for thai the 
parties on whom «ucb proceis stiali heexecnted 



hereupon petitioned the Lord Chancellor, that 
be would be a luitor to her majesty that notiiing 
ba done hereafter. Aod thcreapoo the Judges 
w«r* deiiMil to ■taew io what wweMew tbai 



were contmitted itere not bailable, whether 
upon the commitmeiitoftho queen or any other, 
—The Judges make answer, Thnt if a man shall 
be committed bylhe queen, by her comroand, 
or by the privy coancil, he i> not boilabie: if 
jour lordihip nsik me what authority I have for 
this, I can only say, I hare it out of the Boole 
of the lord Anderson, written withhis own band. 

My lord, 1 pray yoa give me leave lo obserre 
the time when this was done; it was in a time, 
and we inay truly call it a gnod ttme, in the 
time of good queen Rliiabelh, and yet we see 
there was then cause oi complaint ; and there- 
fore i >^ould DOC have men think that we nr« 
DOW gronn so bsd (us the opinion h we ore), 
for we see that tlien in those tiroes there wat 
cause of compbiini, and it may be more than it 
now. — This, my lord, was the rrsolation of all 
the Judges and Barons of the Eichequer, and 
not by some great one. 

Now I will npply myself tn that, which has 
been enforced by the counsel on I he other side, 
which Was the reason lint the subject hath io- 

My lord, I do acknowledge it, but I must 
say that the sovereign hath great interest in il 
ton. And sure t am, chat the lirst slona of so- 
vereignty was no sooner laid, but this power 
VBSgiven to thesovereign: if you ask me whe- 
ther It be unlimited ; my lord, 1 s^ it is not the 
queninn now in hood : hut the common law, 
which hath long flourished under the govern- 
ment of our king and hii progenitors kings of 
this realm, hulh erer had thnc reverend respect 
of their sovereign, as chttt it hath concluded the 
king cat! do no wrong: and as it is in the lord 
Berkley's Case in Plowden's Com. 316, b. it » 
part oi the king's prerogative that he can do no 
'rong.— In die 4c)i of £dw. 4, fol. 35, the king 









is also 



1 tiie 



lord Berkley's Cnse in St Hen. 8, Dyer, fol. 8. 

The king cannot usurp upon a patron, Ibr the 
common law Itath that reverend respect to him, 
as that it cannot conceive he will do any in- 
jury. — But the king commits a subject, and ei- 
presuth no cause of the commitment : What 
then } Shall it be thought that there is no cause 
why he should be committed f Nny, my lord, 
the course uf all times hath been, to say there 
is no cauts expressed, and iberefore the matter 
is Dot ripe, and thereupon the courts of judica- 
ture hare e*er rented satialied therewith, they 
would not senrch into it. 

My lords, there be ■ Arcana Dei, et Arcana 
' Imperii ;' and they that search too fhr into 
■iheni, and make chemselves busier with them 
than their places do require, they will make 
themselves, &c. 1 will say no more; but I 
shall be able to shew that there' shall as much 
prejudice come to the kingdom, if God direct 
not tiie heart of the king, which is in the hand 
of God, as the nvers of waters ; I say, there 
TBayasmnch hazard cometotheeonmonnealth 
in many other things, with which the king is 
tnuted, u in ibis parttcdar there can accrue to 
the subtect. 

If ktNUHl 



, Ciooglc 



4S} STAIKTRULS, 3 Chakus I. IGVJ.-'-broiiisii by Sir T.Dantd.ajid alien. [4* 



loi^ ago, Dot fir roDOTed from our mennriM ; 

•iiure tbcre ws$ a treaAon,and Ui« uHors tliercof 
fled, some (a ihe cuurt ot' lUuDe, tonie to 
Brussels, when it was te be pui ia execution ; 
[be trtHOB beui diEcavered, one is iippretiend- 
ed ufwii MupiuDD «f it, ftad ^s put iaio (lie 
Tower, and tLere he lietb, and thinketh the 
tJEie Tcij lAiigi and t cuinot blamtiliiai. 

I( maj be be i* iaaooejit, and thereupon he 
btiep a Habeas COTpus, and b; virtue of Uiut 
writ be is brsuaht hither ; and will your lord- 
lUp ibink it Gt or coaTeDieBt to bail liim, 
■MQ the accusMioii agaia^t luoi inuat coiae 
fiam bejoud the lea? I think you •vill n- 
tber sa respect the prooeedingi of the ttue, 
u thit you will believe< tlwte tbinKS are 
iane with a cause, than ioquirc further of 
tbe«. — Perwireoture «o<ue great misdemeaDar 
BUT be comiaitEed, and some of the pariias 
Bi^e aw«j, to U ProclHination caonot Over- 
take tbem, and some are taken, is it Jit that 
Ibey that are in priaon ihould be tried before 
tbe priadpat be taked f 

I "ill ifve you an instance, [tut lately' was 
pat iMo my iniHd ; there be loine prisoners in 
the Tower at this present, which were put in 
tbitber when they were very jounf; : if they 
AouM bring aD Habeas Corpus, they were im- 
)inMiBed for State-natters, will ysur lordship 
itlittr tliem P No, in that the stiite doth not 
Ibint k fit lo lead them back into tJteir owa 
countriej, you will cfiteem so reverenrflf of tbp 
itate for commicdng children, that you, vill 
believe tltat there is great reason of state so to 
do, sr eke cbey would not do ic : maaj incon- 
teniences may toUow, if it should be otherwise. 
It may be, divefs men do sufier wrongfully id 
pRwn, hot therefore shnll all prisoners be de- 
mrt4 f Tbat were a great misCluef. 

No doabt but the king's power is absolutely 
•wr liis coins; if^en lie sliall conUDajid ha 
ODiasball be turned ti> bniss or lentlitr, 1 crn- 
fatii vere inconTenient ; but if the king would 
itt it, tbe answer that I cuii make ii, ihat he 
weoM not undo tlie kiiiKdnm : Uii cnn your 
krdshlp kinder it, as beinE an inconvenience, 
ifbew'julddu it? The Cnique Ports are fr^ 
fbitradick for all his kuhjects; but ihe kini in 
lus cabinet uuderat.inds there is danger of wnr 
la come apuli this JiiiiKdam, thertupiin he 
^is tlie ports, that no man can go out ; slinit 
tke iBerchHDt say this is injustice in the kin° } 
Aad as in this, s^ in many other particulars 
thii may appear, but I will not go toe high; 
sad therefsre wc are too wise, Bay vre are ion 
inliih, in Uiidertaking to evniaiiie raa tiers of 
itate.to which we are not born Now, ray lord, 
I come to onr book-cases, by which it appears 
■hat oar kia^ m.iy do, and uatfaiu can be said 
sgBDSt it, but iie will nnt do it; (he king may 
ftiina all rraitars and tetnns, and ifhc ^nuld 
4(1 it, ninj not the sahjecta say, IF tlie kini do 
lUt, the faui »ill n>er«nme the good} Rut 
•haQ any ray. The king cannot do Ibis } No, 
■emay only asy. He mil not do this. 

Hie kin|[ may exempt men from the office of 
lUri^u not ^ii iBCDm*»i>iMtf Aad may it 



not be said, be may ciesnpt ten in • shire, and 
(hen tbe bunleu ol ihe country shall rest ■pan 
the meant^r sort of ptnule i can aoy man iwy 
more to [his, llian that he will not do it f — Id- 
heriiances are to be decided npon trial, the 
king ma; exempt private men ftura being oi ■ 
Jur7 ; but if be exempt all mcDr who shall tr« 
our causes? for it is to be preauiaed, that hm 
will not doit. 

But to our case : By the statute of Mngn* 
Churtu, no man shnll be pot out o[ bis Free- 
hold, &c. But if tlw king will do it, uiosi nut 
(he party that is sa pui out go lo the king bjr 
peiitiou I But you will say, It is a peiiiiun of 
right; and It oiay be [hese'gentkiiieti's is so; 
admit it be, yet when such a petition comes to 
ihe king, must it not be answered wiihiheic 
wuidi. Soil dnjil /ail ai parte 1 And whan 
the king will give thai wuriaat tor it, iktn chej 
must hnve it done, and not hcrore. 

And [his miiy answer a peipctual inprisMK 
ment, aikd God forbid that this should he ao% 
and QOw, my lord, I will trtiuble yon no longer, 
but I will |a to precedents. Pncedeuti I 
knuiv prevail much, and rule in many cases; 
and if the precedeiili. tliey cit« were noPiuiaiD. 
terpreted, I ahuuld tbink they had said a gteat 

But, my lord, I will answer then- piecedents 
with precedents ; nny, I will shew yoar Inrdsb^ 
that the (jiecedcntfi which they havi. cited ue 
no ptecedcDts for tbem. — iliid, my lord, it is a 
dangerous thing fur men in maiEtrs of weiKhC 
to avouch precedents witli coolideiice, when 
they m;ike nntliiug £br them : for, uiy lord, pre- 
cedcDtiare now bt- come almost proclamatioBs^ 
fur tbpy aJread} run up and donn the town ; 
and yet they know hut part i>f ihera, and not 
all, and I think if they kuew aU, men woukl b* 

But, my lord, I will now crime to these Pre- 
cedents, where I m»y say ihcv li»ve not denli 
frtely with me, for tiiey Jiave vhewed me many 
precedents more ihan tliey mentioned liere, 
and it may i e ihey have done ihe like uoM 
your lordship. They ollet^ed but 8 prece- 
deiiis betbri- your lord-ihip, hut they baie 
brought 16 uuto me: for thtse eight oseatiiined - 
here, 1 mil take then'io order us they were 
cited, and >ms»er. 



mitted for -uspicK 
pressed in the warran' ; and then, my lord, 
tliis IS clear, if the kin^, or the l^rds of the 
council, will elpress any tliii^ within your 
liirdsliip's jurisdiction, there is tuad eround foe 
your pniceediiiBS ; but wlicn there is nothing 
expreased, wheti.er you will fudj^ what tlM 
cause of ihenarran' is, I will Ifave to yoor 
lordship's judpnent ; but it appears this was tlia 
cense, and fiat lie was delivered. 

The next )irecedent was 33 H. S, Itot. 57, 
and it was Parker's case: and it i^ true d)4t 
his comrnttment appeared to be ■ per'speciats 
' niflHil— d— ini regis' ^Mtt it wm «Im pto- 



47] STATE TRIALS, 3 Cham-bs 1. lVi7^ProcadiBp mlbe a,baa Cmpa, [49 



poaed to be ' pro pace et lospicione felnnJc ;* 
and die slgnifi cation of ihe coimnand wni given 
hj Mr. Peck of ClitTord's^Iiin : but there [be 
wamnt shem the csiue of the cnmmitment 
was for the peace and suspicimi of felony, and 
therefore lie wm bailed. 

The next Has in 40 Eliz. Wendon's.case; 
but, mv lord, tbat commitment iras out of the 
Star-C hamber bj an ordinary courae ; then 
they cited 8 Jdc. Thomas Cisar'a case ; he iu- 
de^ was committed by ' speciale mandatum 
' domini reffis,' and brought hiiMabeasCurpns, 
but the Koll sailh ' remititar :' and is that a 
•nurant for them to say that he wBs delivered } 

Then sir Tho. Vernon's case was dted ; and, 
taj lord, when we l6oked into the Records, vro 
fbuiid that he was committeii for suspicion of 
treaton ; and he was tried for it nnd discharged, 

Tlie neat precedent was »ir Tho. Momon's 
case I I wonder that they did cite that, for he 
was committed by the lords of the council in- 
deed ; but tlie ground of it was suspicion bf the 
death of sir Tho. Overbury, and lie was dis- 
charged again br the lonis of the council. 
Certainly if they had known this, they would 
not hate named thig as a precedent. 

The neiE was Reynor'i case ; he, my lord, 
was one of the Gun-Ponder-Treaion, and yM 
libere was a warrant to discharge liim too. And 
tberefiire what tliese precedents are, I shall 
submit to your lordship: I mu»t confess, when 
they are cited together, they make a peat 
uoiie; but when they are examined teterally, 
they proce nothing. 

My lord, there ii one more precedent that 
was cited here before your lordship, and I hope 
that one shall be ai none. It was mentioned 
to be Laurence Brown's Case, 30 Eliz. I know 
not wbst it is, but it is like to be of the same 
value as the rest; ' Pro certis causis eos moven- 
• tibus, &c,' 

Aod thus, my lord, t have gone (hrougli those 

trecedents that were alledged here before your 
ird^ip ; and now I will come to those prece- 
dents that were brought to me, and not men- 
tioned here. 

- The first was John Browning's case, in 91 
H. 8. , My lord, these precedents came not to 
me before Saturday last, about candle-lighting ; 
and yesterday was no time&tting to sesrch out 
precedents, and bow'could I liien search for 
Ihisf 

The next was William Koger's case, of the 
same time. Bnt the cause is expressed to be 
for suspicion of felony, which is a cause within 
the jurisdiction of this court. 

Newport's case was the like, in 4 et 5 Phil. 
rt Mnr, and so wai Thotnas Laurence'* case, 
9 Eliz. and Edw. Hercourt's case, 5 Eliz. which 
was for suspicion of felony. R. Beckwilh and 
nut Bartwiih, a* was cited, for tliey have mis- 
taken both names and matters, was committed 
' per specinle mandatum doDiini regis;' and 
the Record saith he was bailed. But it was 
by reason uE a letter from the lordi of the 
council. ' « 

Tlie cauw of Peter Man's commitnent in the 



4 and 5 of Philip and Mary, i4^>ean totbe fbt 
suspicion of felony and robbery. 

for Reynor'i case, it is the aaxae with Bcck- 
wiih, and were both for one thing. 

In the 8 Hen. 7 one Roger Cherry win com- 
mitted ' per mandatum domini, rc^is,' and it 
was for acriminnl case; and he wis afterwards 
indicted nnd acquitted and deliiered. And 
there is another precedent thereof, that siith, 
lie was ailerwards arraiEoed, condemned, and 
banged i we have the Record of it. 

And now, my lord, I will iihew some prece- 
dents on the other side, vrbeiY men haie been 
commitied by. the couiiDaDdment of the iing, 
and by the commandinent of the council, aiM 
bate baen delivered again byth«r directions: 
andoftliiskind there be two in the Tower, that 
as ihey were committed by warrant, so by wai>- 
rants agaia for their bailing they were deliier- 
ed ; ibe offences were againkt the forest, ami 
for murder. 

In 4 E. 3, Kf. 4, Edmund de Newport 4ti 
Essex was indicted (br an offence committed 
by him in the Forest. And M. 7. John Fox 
was hkewise indicted for an offence by him don* 
In the Forest: end there be two warrant* to 
bail them. 

M. 90. John Cobb was the like, and there 
was a letter from the king, ' Quod ponatur in 
' baUium usque ad proximam attisam.* Tbe>e 
were offences within Westminster primo, Uld 
there be several warrant* to bail them. 

The clerk of this coart hath many records, by 
which it appeareth, that many have been com- 
mitted by the com^ird af the king and of th« 
queen, and of the council, and brought their Hb.^ 
beas Corpus; and theguccess was,thatmaiiyof 
them were committed lo the same prisons, and 
dirers were committed to the niarihal of thia 
court ; the reason was, for that many of them 
were to appear here, their cnoies being triabi* 
liera ; and it would have be«n a great trouble to 
send ihem back au far to prison as into the coHn~ 
tries, and therefore ihey were delivered to th* 
marrthel of ibe king's housiiold: again, manr 
had their trials in this court, and srime suffered, 
and some were delivereil by special command, 
ai they were committed by special commaad. 
— The number of these of thii nature are in- 
finite that hnve been ii* our times; we have 
found some forty precedents of men committed 
out of the Chancery, and by the high'Commi»- 
sion, for contempts, and some by the barons 

05 the exchequer, and sifiDe in London, that 
have been brought hither by Habeas Corpus. 

Of this I shall observe, that in the 11 Jac. 
there was a private constitution in London, 
made between the white bakers, that they 
might live one by another, and the one not to 
invade the otbe/s liberties ; and for contempt 
against (his ordinance, some were committed 
topriion; asThomssHeaning, aodLittlepage: 
they had a Habeas Corpus, and the cause waft 
shewn to be by reason of ^e said constitution, 
and thereupon the prisoner* were NDt back to 
I.jindon, to abide the order of the mayor. For, 
my lord, this cootl hiih bees ever nreful not 



«9] STATC TRIALS, 9 Chaum I. 1027 .—inmght fy Sk T. Sana, and othri. [50 
these geDtitnwn miy be reiaiuM, and left to 
go th^rigfat way fi^ their delivery, nluchii \\ytt 
petition to the king. Whether it be b PatitKui 
of righc or of grace, I knaw attt; it mmt be, I 
am sure, to the king^ bota whom I do person- 
rally undentandthHUhesc gentlemen did never 
Cet prcseot any petition Ut bim that cnme to 
ii kDowledge. 
L-CJiatia.' Mr. Attorney, thus much we 
unit say to you, you have taken a pvat deal 
of paiui, you havmg had so *liort a tin>e to con- 
lider of tlii» caie ; it ia a case of very great 
weight and eipeclatlon, -nod we do not intend 
that you diull expect long for oar reioliitioD, 
for liiHt these gentlemen are in priaon, und de- 
tire no doubt to know nbere they nuet trust; 
I bope we ^11 resolve according to the rea- 



,ti> euiuBB the Dewaea vf tbC'ChaDoery, or 
CovnorRequuo, but have oaty looked wlicEher 
the cause rMurned be wttbin the jurisdiolion of 
thiscourt; nor have ibey called ill (fuestion the 
by-lain and rtHiatitutians of Lnnduo, but they 
wad them bauk to ibe court of JDstice that 
oomoiiiieth them. — Aadhaib (bts conn been 
Ml (atetnl of dieae inferiour couttl [o this which 
is the chiefs and when the Iking, who ii the 
head of jiMtioe, shall commit a man, shall not 
Uwy be ■• carerul to do the like justice to bim 1 
. Ak ithen the king aaiih to them. The commit- 
iHot wat by my warrant and coainiaiidment, 
■till yuu qneMioii this, and whether this com- 
BlbMBt Ml good or no? i hope you will not. 
And iiow,aiy lord, tuucfcing some Precedents 
■hich IsTe been taken out of their r>wn shen- 
ia^ I shell make it appear, that as they have 
toCD ctoKDicted by the king or council, so the^ 
kad mfraoti alio to diidiaige them : and they, 

?lord, are two ancient records ; the 4rsc is T 
7, 8oL e. the other, Itoi. 73. The lirtt wai 
Tbnaia BratMi, be wot committed to tht 
UaBhaliea, ' per mandntum dommi re^is^ et 
' aliii certia de oausis i' aiuf afterwards th« re- 
conls say, ' DomiBus lA quoad chase relax> 
a,' And be wis bailed and 



HyJonI, I wiQ conclude; I couM be infinite 
at th»caae in preocdeots, but enough is enough, 
yoOrlonUhipknoncth the wnght of precedents; 
ais not enni^ to shew this wu done, hut thif 
losfaew tbe reason ^by it was don«. I will 
MubleytKir lonlihip^no longer, bat ifuiy man 
•hiH doubt whether that or any part thereof 
be iruly recited which hath been said louc^iing 
. dK'Kecoid* or Statuies, I cud say no more, 
fel that the StatBl«9 have b^n read, and tbe 
Records are ready sotted out to be jeen by 
yMT.lordship. 

IdsU conclude (whnt I shall say) in 
ease, toannrer t lie feat rather than' the just 
ponnil of them thai say, this may be a cause 
«f great danger, *-ith the wotds of Braeton; 
*ko ^ke not to flattei* the present age; lib. 
1- cap. 3, in tbe eUd, speaking of a writ foi 
wrong done by the king to the Subject louch- 
ia; bnd, Ete hadi these wordk; ' Si jodicium 
'«r(ge ce^stalnr (cum brera non currat contra 
■ipum) locos erat supplicationi qnod Ikctum 
'MafB' eortipit et 'emeiidet, quod qnidem si 
' noo tecerit, satis sufBcit ei ad poenam quod 
'douinom eipecret ultDrein, nemo quideni de 
'fietis toil prsstimat dispolnre, mJlto fortius 
' (Mitia fikctum suum venire. '—My lord, I Eng- 
hAitDoC, for I apply it not, any man may 
make use of it as he plenseth; and so I con- 
dode both for the point df exception, nnd 
natrer of the return, which! refer to your lord- 
Ayijodumeiit, whether alt iii the return but 
>«e wurds, ' per speciltU mondatum doraioi 
' Ktis,' be not superfluous. And forthematter, 
•beiher these genttemen be bailahle or not 
ktilaUe, I ha»e ihewAt your lonWiip, that hy 
*ke practiceof aB ages they are not bailable, but 
■»e been rtimanded bftcb. 

And therefore I' pray y»ur lordship, that 



of former tinjes, and accnrding tx 
sciences ; bat this I must tell you, as I did 
those that ai^ed, you must bring in your Fre- 
cedeoiE ; for though we have seen some of 
them, yet some of^them we hare not seen, 
(herefure we desbfl that your servants or your- 
selves do attend, and bring unto us after dinner 
those precedents you have laealioned on the 
king's part, fw we intend to meet this after< 
noon, and yotl ahall have our Opinions to-mm^ 
row : and i must tell you on the other side, 
thnt this cause being of such weight, counsel 
sbonld be Wary bow they speak any ibiiig to in- 
veigle the court. — Touching such precedents as 
you uT^d in some of them, we know there i« 
umetbing urged which makes not tbr you, to you 
have omitted ^ome muceriat things to be shewn ; 
I speak it t6 this purpose, not to prejudice the 
' cause, or lo deliver my opinion, which become* 
me not, but to shew, that counsellors sliould be 
carefidi and this I dare wy, there is matter 
in someofthc precedents themselves thai leada 
to another ca»e, if tliey were entirely cited . — 
The TeRn grows away, you shall not be lone 
In eipectatioB, we wil! meet this afternoon, sno 
give you our Opinions to-morrow morning. 

Mr. Naye. We desire that Mr. Attorney 
niay bring the precedents of 91 F.liz. with faiih. 

Mr. Attorney. I will ihevt you any ihiog; 
but, my lord, 1 shall be bold to claim the pVi< 
vilege of my pluce, as the king's counsel ; when 
■tbeling's Attorney hss spoken, there ought to 
hit no arguments after that; but if you atk to ' 
see nny ibing, you shall have it. 

X. C. JuXice. It is that we aim at, that 
truth and right may appear, nnd not to satisfy 
the ohe or the otfaer part ; but it is not desired 
to make use of it by way of reply, but for sa- 
tisfaction only. 

Serj. Branulen. My lord, for the precedents 
[ dted, I did tliink they should hafe been . 
hrvugbt and rrad in tlie_ court, that your lonl- 



ihc Reconlsand Precedents shall be brourht t 
therour^ andreadopenly.for the court will ihii 
wrong you, and you shall see the dillerence be- 
n them, and your relation of them; nor 
unit not wrong ns with ywir writlea i*- 



'51] ilTATE TUIAUS, SCharlhI. \6Tl.—ProaxdmgiolnlitJIabeatCorpM, [M 
Wg Qumot jadee npon tumnan nor reporO, 
but opoa that vhich is before ufl on record; 
end uierefore ttie Ratnni l> eiaminabla bj m, 
nlwtberit bs lufficient, ur nni. 

'1 be £<cepUon* which litic been uken U 
this Ketuni vere two: Uieone for tbe^Dim, 
the other Tor the Subnance. 



On "Hiundaj the 38th of November, Mi- 
chaelifl, 3 Canili Regis, Cliief-Justice Hyde, 
JosCice Dodeiidge, Justice Jortei, and Jwiice 
Wbitloclt on the beach: Sir John Corbel, tir 

' Waller Earl, tir joha HeveDingbuni, aad sir 

' Edmuod Hampden at ibe bar. 



L. C. Jailice. I am sure you here eipect 

the resolution oftbewhnte Court, as accordingly 
Teiterda; we told jou you shciuld have. Tbii 
IS a case uf very great weight and zmt eipect- 
ntion, lod it bad been £t we sbuuld have used 
' more loleniii ai^woeots of it than now liir the 
abortiMH of the time we can du'; for you iiave 
been bag in prison, and It is £t yoa ihould 
know wliereuQtci you should trust : I am sure 
you expeet justice from hence, and God forbid 
we should Bit bere but to do justice to ali men 
according to uur best sliill and knowledge, for 
it Is our oaths and duties so to do, and I am 
•ure there is nothing else eipected of us. We 
are sworn lo luainlala all Prerogntivei of the 
king, that is one branch of our oalh; and we 
' are likewise ^woro to odtniniiter justice equally 
to all people. 

We cannot, I tell voo, deliver in soIcoid Ar- 
. gumeats, and give the Judgments of eiery 
of us louchbg this CRSe, as the weiglit thereof 
requiieth; but we have met together, hiuJ we 
have duly and seriouslj considered of it, and of 
nil that which bns been spoken of on either side, 
nnd we are growii to a Resolution, and my bro- 
thers have enjoined me to deliver to you the re- 
tolution of the whole coutt; and therefore, 
though it be delivered by my mouth, it it the rc- 
solulKiu of US all: [hope I siiail not mistake 
■ any thins of thdr intention in my delivery ; 
but if I do, they git bere by me,' and I shall ool 
take it ilUf they right me. Therefore I must 
tell you, there nsib been many points learnedly 
argued at |he bar, which we shall nut touch, or 
give our resolution upon, but bend ourselves to 
the point in judgment here. 

These thrte Statutes, as for example, tlie 
Statoie of Magna Charts, SS E. 3, aadse £. 
S, and ibe Statuic of Wesmimter primo, and 
divers other statutes thai have been alleilj^ed, 
and particularly disputed of, we all nckiiow- 
' ledge nod tesohc, that they are good laws, and 
. that they be in force : but the iiiierpretatioa of 
them at this lime belongs not to us, for wc ore 
driven to another point ; and though llie raean^ 
ing of them belongs to the one way or the 
other, yet pur judgment must be the same ; tor 
that which is now to be judged by us is this, 
Whcllicr one that is committed by the kiog'a 
autlnrity, and no cause declared of his com- 
mitmeni, according as hen it is upon this re- 
. turn,. whether we ought to deliver hini by bail, 
or, to remand him back ajisin? Wherein you 
must know tliis which your ooun^l will tell 
you, we can lake notice only uf ib 
. and wlien the case appears to coni 
otherwise than by the return, w 
buimd to trxaiaiue (he trulli uf the i , ._. 

t)ie sufficiency of it, for there is a trreat dilTer- 
eiice between the sufficiency and tlie truth. 



the Form, whether it be foniMlly re- 
tnmed or no, for it is not retained, as it is said, 
positively and abaotutely, that they were cou- 
mitted by the king, but as it appears by a war- ' 
rant from the lords of ibe council, and then 
there seems to be a coaimdiction in the re- 
turn. — For first it saith, thry were committed 
by the king's command, and afterwards it >l- 
ledgeth it (o be by a warrant of the lords of the 
councd. Bud so it is repugnant. 

Now we conceive that this is a positive ud 
an absolute Relum, and so the reason is, that 
he lir^t returns that tbey are detained by the 
specif command of the king, and if be had 
ceased there it had been positive; now there 
folloHs, that this was sigoified to them by the 
lords of the council. This is retnmed, to ascer- 
tain the coutt that be returned the cause tmly, 
and to sbenr us that we should not doubt tM 
verily of this return; and not to shew to OS 
that he Imth no knowledge of the canSe but by 
the signification of the lords of tbe courtcil : 
according to that Case of tbe bishop of Nor- 
wich, touching the Excommunication, h^ mint 
testify his own knowledge, and not ' contiuetur 
' iu archiris :' so a Sheriff must not return 
quod mandari ball', &c. and be gives tbis »b- 
>i'er, unless it he a baililf of a liberty that bath 

And BO here if Ibe Warden of the Fleet hsd 
returned, (bat the lords of the couDcil had sig- 
nified unto him tbnt bis prisoner was detained 
by the king's commRndmeoi, that hod ben 
sufficient: hut when lie returns positively at 
the first, [hat it is done by the king's direction, 
heslwns afterwards tliat which shoold make 
It Hppcnr Ihnt he deals not Falsely ; which 
migliL hitve been omitted, but being meBtioned 
that that is the scope of it, tmd not otherwise, 
the return is good and positive. 

Nuw then to the other Objections, becanse 
be speaks nothing of the c-.ipiioa why they were 
taken, yoa know ii is the usual return of all 
officers to answer the p«iiiE in question; then 
is not one word in ttie Writ that demands the 
cause why they were taken, but why they ore 
detained : so that the point in the writ is suffi- 
ciently answered; for though someliines it is 
nccessRry that the cause of the caption should 
be certified, yet sometimes it is soperduous : 
but in pur CDse the cause of the detention <* 
sufficiently answered, which is tbe demand of 
the H rit, and therefore we resolve tJiat llie fom 
of Uiis return is good. Tbe next thing is the 
raiiin point' in Uw, whether the substance or 
matter of the return be good or no, wli««o 
the ^ubstallce is thin, he doth certify that they 
■rt detained in prison by the special comsaand 
of the king; and whether this be good in iM 
or no, that it the question. 



U] STATE ntlALS, 3 Chauu L ]«».— drwjfti by Sir T. Darnel, and oiken. [H 



To ilMparpoK, ir jou muanber (hit point, I 
sij JOD did not eke mny Book or Case in pnni, 
bai manj precedents, wtiich, I cnuless, Hre su 
■UfMiMany Book-cueiiforBook-caies. Icoii- 
fcH, uc tkkea and lalected oat of the Kecordt 
Md Uetoliitioiu(ifJiHl|ef,Biui tliBt is itwiiicb is 
ID our books, tboDjEli the; be not w obiious for 
**eT7 «jc, but ■!« Iband oBt b; p«ins nnd dili- 
gtM tMicb, and bang prodaced, nre of the 
»■• and equal Bnthorit; with our Boak-oa*es; 
hot t)M iniut be nben Bccords are bniuglil 
bthloUy mad eotiral^, so that tlie court msy 



Now 



• the Freccdentf , lou urged thrm lo be 
sj, and so fuiJjr to the point, that we may 
(faerettj tee that it i* good to bear n-bst can 
beaaid on Uilh sidei, and for to hear all, and 
licw tbe Records themselrea; and ihererore 
ire rcqidrtd joa to bring tbe Records to us, 
and 70a did to, and yoa broo^ht us more than 
joa meaboaed here; and ne haTC pertued 
than all, that thereby we mi^ ht see wliether 
the cuun be fiuchfully dealt withal or 00 ; for 
thoppb ciHUUwllais tnay urge a book for tlieir 
own adraotage, yet it is the duty of tbe court 
toseaaoddiitini;ui«hof tbeiranegationsHs tjie 
ttath may appear. 



« laneh as you 
oiged tbea for; for if you remember, you urged 
MMie preoedeuts 10 be, that where men were 
oBBUMtted by tliB king, or by the lords of the 

comniued, tliey were deliTered. — This is in 
ifiea our case, if the precedents aSinD tbal 
wbiD a man* is committed by the king's com- 
nand, and no just cause is shewn, that upon 
sach a general return tbe party shall ipio/acto 
be delivered ; for if tbe return be nut amended. 
Aen be shall be (liscbugeij.-^lf'i>r |iithoug)i 
nea come with prepared minds, ytt the pie- 
paradoD of every man's heart ounht to submit 
10 die truth, nod by tbe precedents, you tbnii 
•ec if it be *o ns you have allied ; but tikis I 
dare affiim, thnt no one of the llccurds that 
yaw have cited, doih inforce wbM you have 
OKKladed Out of tlinn, no not one ; and tliere- 
fare as you liare cited Recordl and Precedents, 
Precedent* sbatt judge tbis case. 

I wiU shew you bow they differ from the Re- 
conb: jou have cuncluded, when the king 
iMlb cnmmitted one, and eapresseth not tbe 
gansr, ttie court tialli delirered the party ; but 
yoB timli see the contrary concluded in every 
case that yoa btite put: where the cvuie ul 
the fUHnmitineDt bath been expressed, there the 
party hath been delivered by ibe court, if the 
caae so required; but where <liere hath heen 
BO cause expressed, they have ever been r^- 
Banded ; or if they faaie been delivered, they 
hare be^ delivered by the king's direction, ar 
by ibe lords of the council 1 if this fail aow iti 
proof, yiNi see yoa havo gathered Ikir conclu- 
>i»n oat of the Kecnrdi ; Sod that yiu may 
«* that this is BO, I have broucht the Records 
with DM of your own propounding, and 1 will 
p> tiuoajh theiD from point to point, and then 
jadge jounelves of the cue. 



. It is not mBteHsl whether I call for ibem in 
that order as you produceil. llicm or ni^ oud 
therclbre 1 will take them as they arr, first or 
last in tbe kin^s reign. They are in number 
many, in tbe time of H. 7, li. 8, Mary, Elii. 

J will shew you ur Thomas Monson's Cuso 
in 11 Jac. which wss iu all onr meniotic*. 

I will be^n with Hill. 6 II. 7, K. Clierry't 
Cnse ; you vouched it to this purpote, That 
Cbcn7 being cooinitted by the mayorof Wind- 
sor, was brought hither by a llnbeus Corpus, 
and tbe mayor returns that be was oonimLtted • 
' per mandatum domini r^is,' and that there- 
upon he was delivered; but yoa shatl find by . 
tlie Record, tbat he was committed by th« 
ma^ or at the suit of the Ling f.>r felony, for 
which he was afterwards indicted, bruugbt to 
trial, and Chen ditobarged. (Vide this Record 
in Mr. Selden's A^ument in ilie parli^iujbnt, 
S & 4 Car. Itegis, and so all tbe rest pottea.) 

The next was 19 II. 7, Urswiek's Caw ; and 
you say he was brought hither by tlie Warden 
of ilie Fleet, who; as you said, returned that he 
was com mil led < per innndaiun dotnioi regie,' 
and you said he wbi ditcliai^, but be was 
bailed upon the Lord's Letter, and brought hi- 
ther to record bis return, for be was bound to 
appear here, and then he was discharged ; hut 
that WHS tbe cause of bis bringing hither. (Vide 
tlie Records as albretaid.) 

Tbe next was Hugh Puin's Ciise, in 31 H. 7, 
and that you urged thus : You say tliat he ivas 
hrooght hither by a H. Corput by the Warden 
of the Fleet, wlu) returned that lie was com- 
mitted by the king's council, and he whs 
bailed : now, we fiud that lie nns commiiteJ 
bjp them fur suspicion of feloiiy ; and that 
cause was declared, and be was bailed ; so ihat 
TOO see there was a cause eipresiied. (Vide the 
Record) aforesaid.) 

The nr^t is 3 H, 8, Thomas Beckley, and 
Robert Harrison's Case ; these you saiil wer» 
brought in hither by Gennte, earl of Shrews- 
bury, and I'hnmni earl of Surry ; and the re- 
turn HUB, thai ihey were committed by the 
command of H. 7, and that they were bailed ; 
but you shall find that th^ were committed 
fur suspicion of felony; and tbni Harrisoa 
was couimiited by H. 7, but it wns for Hami- 
cide upon the sea, and so the cause is express- 
ed, and ailerwards he was bailed. TheiiGxt 
HiisiuSi H. 8,J<ilin Parker's Cdse : you urged 
it to this purpose, Tliat he was brought hither 
by H U. Cnrpug by the slierifis of Luudon, and 
thiiy you eaid returned, that he was cnmniiited 
' per spctUaie TTiandaium domtoi regis nuncia- 
' turn,' &c. by Robert Peck, &c. The cause 
why yr.u urgeil this was iwo-fuld ; 1. That JM 
Was committed by the king's command, and 
ret be was bailed: idly, 'Ibat he was com- 
mitted ' per mandatum dumint re^is nunciat',' 
per such a une : but yoa shsll find by the He- 
cord lliat he was committed fur the srcurity of 
tlie peace, and fur susuicinn of felony, and 
thnt wit) the cause for "liichliewas bailed, for 
he is bailable by law when such a cause ap- 
pearl. (Vid« the R«cord as tfoiewiil). 



55] STATE TRIALS, S Chasles I. iS'Il—hroeeedin^oniiellabetuCoiftt, [30 



Go on to the mex\, uxA that ia Peter Mali's 
CiBe, in tbe 3 and 4 Phil, and Mary ; you 
urged tliBt to this puqKise, jnit s&y, tiikt he 
ma brought by tlie Keeper of the Gate-luule, 
and you say, that be icturued, that he wai 
comniitled by the connnand of the Iniig and 
qneeu't council, and thereupon he wnt bailed ; 
but ^0U ihall lind that he was cammlit«d for 
mspicion of felony arid robbery, and thereupon 
he was bailed. 

The next ta in the 4 and 6 Phil, et Mar. Ed- 
ward Nevrport'i Caae ; you tdd that the Con- 
etable of the Tower brought him hither, and 
returned that he was committed by tb* council 
of the king and qaeen, nod that be wntr bailed : 
but you see by the Records, thw he was com- 
mitted fbr luspicion of coiiiiog, which is baila- 
ble only in this court, and tlierefore it wa« re- 
moved nither. Yet this I must tell yon, that ic 
■■ true, in one Record it appears not hot as 
you have cited it ; but you may see how it is 
supplied by another record, and the cauw, nnd 
he was delivered by a pmclamaiion. (Vide 
both Records in Mr. Sctden's Argument). 

Doderidge, He could not be delivered by 
prodamulion, unless it was ibra criminal cause. 

L. C. J. (Hyde). Observe anotlier thing in 
tbe Book, he a bfougiit hither by the special 
command of the cunncil : so that although it 
nppenra noi in the recnrd, yet if the king or 
jords mean tu have hioi tried for his life, be is 
brought hiflier. Then you cited Robert Con- 
Unble'i cas«, 9 Eliz. and you said he wni 
brought hither by the Lieutenant of the Tower, 
who returned that be was committed by the 
lants of the council, and thereupon be was 
bailed ; but you shall find that tie came hiiher 
' to plead h]« pardon, and he wu pardoned. 
(Vide the 2tecord as afbresaid). 

Thomas Lawrence's Case tn 9 Eliz. is the 
same wiih Canslnble's, for it appears that be 
was brought hither to plead his pardon, and he 
was pardoned, and that was the caose he was 
brought hither. 

The next was in the 31 £lii. JoXn Brown- 
itii's Case ; it is true he was committed by the 
lords of the council, and be was brought by a 
H. Corpus to ihe chamber of ur Christ. Wray, 
diief-juitico, and he was there bailed. 

llie next w^ 33 ?:iiz. \Vm. Rngecs; and 
lie, you said, was brought hither by the Keeper 
of the Gate-house, who returned, that he wua 
cominicted to hira by tlic lords oT the cnnncil, 
yet there was n cause expressed, and that was 
for suspicioh -of Cuiningof money. 

The next was in 39 Elii. Laurence Broome ; 
you say ihnt he was brought hither by the 
keeper of the Gate-house, who returned, that 
he was committed for divers causes, moving ibe 
lords of rtie council, and thereupon he was de- 
livered ; but the Record is, that the return 
also waiforsuspicion of (reason ; and although 
tbe sutpicioi] of treason appears not in one Re^ 
cord, yet there is another (or it. Herevmi see 
tbe cause of his cominitmrnt, and that be was 
bailed, bat it was by the kin^s command, 
Sffw Oct. ISchaelit. (Vide tfe Becord],-~ 



I blame bm yoa tfaat are of connael with 
Eendeinen for ur);ing this Record, foi 
IS not expressed in yoi 
was comioitted by tite 



Record). 

The nert is in 40 Elic Edwaid Hareoan'i 
case, and lliotnas Wendea'tt case ; I bri^ 
them together, because tbey are b«di is oac 
year. In the 40 of Eliz. Uarcourt, yqn say, was 
committed tu the .Gate- house by dM lords at 
ihe council ; and tbe rcium was, that he was 
ciOnmitted by tfaenl, ' Certia de caolil iptos 
' moventihus ignotis,' and- he was bailed. — 
Here is another in the same time oommiKed to 
the same prisaa by tlie hirdi in the Star-Cham- 
ber, it was 'I'homas Wenden's case; and he, 
you say, was cummiUed b^theui, 'certii de 
' causis',' (as the other wa«) and that ba waa 
bailed; but yoa sliail find in.riienMt^ii«f tbe 
Roll, ' Traditnr in hall'-ei aasensn ooneilii dt»>' 
' mina r^DK;' and tbat was the relation oF 
tbe queen's Attorney, so that yoaMehowllw' 
precedent fits yuu. 

The next are two laore eotaroitmenta to ttm 
Gate-house, Beckwith and Heyner; tbey, you 
said, itiere committed to tbe Gate- lio use, 
broueht their II. Coi^as, and lite Keeper of 
the Gate-hoiHe returned, [hot they, were eom- 
initted by virtue of a warrant from' the abp. of 
Canterbury, Henry earl of Northampton, lord' 
n-anten of the Oiuqae Poru, and others of the- 
privy-couucil ; requiring die suid Keeper to re-' 
ceive tlie satd Beckwirh and Reyner into his 
charge, until they should have furtlier order 
troDi them in that behalf; and you say tliey 
•fere bailed. (Vide the Reeord in Mr, Selden 
aforesaid), — Nou- you shall see the direction Co 
hail him ; he was bailed by the direction from 
the lords of the council, fis appears by tbeir 
letter. (Vide as aforesaid). 

Now we corae to Coisar's Case, in 8 Jocobi ; 
you uigtd that to this purpose ; you say he was 
committed to ihe ManhHisea, who- upon n H. 
Corpus retvmied, that be was committed ' per 
' speciale mandatom domini regis,' and yoD' 
say, because the return was so ;>enenil, (he 
rule of the court was, that it should be amend- 
ed, or ebe he should be discharged. I will 
open to yoa what the reason of that rule was,' 
.for tliat notice was taken, that the Keeper of 
the prison had used n false return, and hod 
usurped the name of tire king ; I know not 
how, but tbe cenunitoieat was not by the kiirg's 
command ; and that was the cause that be had 
a day given him tn nniend bis return, but hU 
body WHS rauaniled to prison, as you shall see 
by the Record, f Vide the Record, tee.). 

The last precedent that you nsed, was that 
of sir Tho. Monson ; and that was so notori- 
ous, and BO laic, that I marvel thai was oftred- 
at alii it mnde me jenlnas of all the rest, lltat 
was >o notorious; and now I have omitted 
none ^ou brought me. (Vide the Record.) — 
B^ this Recant you may see iliat he was com- 
mitted by divcA brds of the coancil; uMtit 



57] 3r4lT£ TltiALS, »CaAti.»I. itsSfl .^-bnngit by Sir T. DtmUl. mi others. [H' 



■Mfartke «n]Ncion«f IliBdMtfaof «r I1)n. 
OMffaurj ; Bod it i* notoriotitl; kaown, ^lat be 
ms bfMgfat Mwr t» plaarf b'a paidon. 

1 «iU DM uU joa tlwt 7«a rend nil Ui«m 
aecedwiti, br jsu read /loiw, but nrgnl them 
Wt bafint of ; bat wa required jou to bring 
Umi 10 iM, and thej were brogght to uh, Mr. 
CwbA brouglit tbcm lii bat ddc, nnd that Mi 



&M I nerer mw before, nor ii he dow in mine 
at, did ^aterds; brinf lu ose precedeiw to 
OkfotfOhBi and it was sir John Brocket's 
Cut ID 1 Jac. be fraa committed to ibe Oate~ 
hoow, Md upoa a Habeet Corpos, the Keeper 
moraed that ' CenmiM' fiiit per wnrraDCuni 
■ daninomm de privat' concilio, cujus (anor 
'MfoitBTiahMt verba,' viz. 'To the Keeper 
•«r the OatcbiHMr/ &a. (Vide Mr.' Sel- 
dn*! pfccedeoti ; bat lee upon whM irouiid 
b> »M bailed, it wa« a spedel commandof the 
lordiof ibc couodl. Vide the Record). 

Ttee are all the Records and Precedents 
thu yoa aiiaiHered onto us in jrour Argnnwat, 
Md thit wer* driirered unto us, Ibr I have 
dwll UibM]; (rich you ; and now jm have 
Mta ibeoi in the Etua, I (•oiiM have ani man 

eg oTlhe conclawoD which you made the 
d^, tbatwhen a man is committed, and 
the case ool known, but it is certified to be bjr 
Ike kii^s qiecial coaimandnent, and the Ha- 
Imt Corpus is procuied bj jourselvet and 
tfeal»i hj the king, that we can dischai^ or 



pxprcssed, it is to be presumed 
to be fbr matter of Mate, wbicb we cannot take 
aolicear; you see we (tod note, no not one, 
thii hitb been delivered by hail in the like 
cues, bet by the 'hand of the kipg or his 
direction. 

If we shonlH ceoM here, jou see you have 
aheini nothing to antiufy m, and we know that 
foe that be of their conniel, will satisfy your 
cSenti therein. But you sball see that we 
biie taken a litile pains in this case, and we 
■in riiew j'oa some Precedents on the other 
ade; and I betiere there be 900 of this nature, 
Ikatraay b« died to tliit pnrpese. I shall go 
mrogade, and go bachwtirda id citing the years 
of the precedents ^at I ahall mention. 

I will begin with 1 H. B, Edward Page, he 
WM broi^t hither by the Steward rif tlie Mar- 
ihtlses, wbo returned that he vm cntnmitted 
'per mandatum domini regis,' and he was 
imicted, ao that he wm not delivered upon 
■bs poend return, but be was remanded. 

fit neit was IS H. 7, therv yon shnll see a 
pecedeot wliere one wait committed, his name 
*ii Thomas Yew, he wag committed for felony, 
and ahu < per mandatum domini regis,' and 
tks king's Attomey came hither and released 
ik kii^ command, ami tberenpon he 



Mr. Jfojn*. It is all one with Patirr's cas«, 

L. C. J. No; for bere were two cnuaei nf 

(lie commit nent^ Hubert was ihen tlie king's 

Attorney, and lie signified in open court tlial 

' e was ditcbai^ed by the king's command, luft 

Poilea trnditur in bull' pro suspicione fetoniz.' 

The nem was Humphrey ftoch,9 H. 7, Rot, 

4. >ou shall.find it much to ihat' purpose as 

the other was before ; he was imprJMined for 

lullanry, nod by the coinmandment of the 

king also, aad afler that tlie release of the 

king's coinmandmeuc was rertlfied to the chiefs 

Justice, he waa thereupon diacbarged. (Vide 

the Oecoiti). 

The neit is 7 H. 7, Thomas Brown, John 
Rawliiigs, Hubert Slieruiuii and others, were 
committed ' per miuidatum domini regis,' aail 
fur felony, outlawry, and other causes, as ap- ' 
pears by the Records, and after the king re- 
leaseth bis commnndmellt, and that the oat' 
lawrv should be reversed, and for the felony he 
was bailed. (Vide tlie Kecord). 

9<i that you may see ihe offences mentioned 
the Warreut for the commitment «ere tria- 
ble here, and fihen the king releases his com- 
mandment they were bailed for the rest, htit 
they that were cocamitted by the command- 
ent of the king nere released hy the king. - 
In 7 H. 7, ih* cases of Wm. Bartholomew, 
Henry Carte, William Chw*, aiid others, is to 
the same clTect, by all which you may see, ihM 
when the king rdeaseth liis commandment, 
they were baited for the rest, and as they were 
committed by tlie king's cummandrnftot, so 
they wercrelcaied by tbe king's command. 

Now here I shall trouble you with no more 
Precedents, and you see your own *hat conclu- 
sion they produce. ' And as to those Itroog 
precedent!) alledged on the other side, we are 
not wiser than they thar went hcfbre u; ; and 
the common custom of the law is, the CununoD 
Law of the land, and rhat hnth been the con- 
tinual common cubtora of the law, to which we 
ata to submit, fur ne come not to change tbe 
law, but to submit to it. 



lution of all the Judges of England, in 34 I^lir.. 
We have considered of the time, and I think 
there were not before, nor have heen since,, 
more upri^t Judges than they were, Wray uaa 
one, nnd Anderson another; in Easter term 
all 

Excbe- 

quer, in a duplicate, whereof the one vas ileli- 
Ttred to the Lord-Chaiicelior, and the other to 
tbe Lord-Treasurer, to be delivered to tbe 
queen. We have compared our copies, not 
taking them the one from tbe other, but hrine- 
ii^ tltaro ; we have long had them by us toge- 
ther, and they all agree word for word; and 
that which Mr. Attomey snid, he had out .of 
Judiic Anderson's Book, and it is to this pur- 
pose, to omit other thing;, that if a man be 
committed by the cumniandmeiit nf the king^ 
he is not tn be delivered by a Habeas Corpus 
in this coDirt, for we know not tbe CuiM of the 



M] STATE TRIALS. 3 Ca«LM I. 1627-8.— J 



(Vida the latter end of tbe fint 
pan of Mr. S«ldeii'* a^ument, ai afomaid). 

But the questiaii now is, Whutlier we may 
deliver this gemleiiiiui ur nut? Yoti s«e vrhat 
hatli been tlie practice in nil the kiagi time& 
berelotbrr, and jour unn Records; and (IiIb 
resolution uf ail Che Judges lenclicth us, and 
vhuC cun «e do but walk in ttie ^tejis of our 
furcfnihers i If vou nsk me irhicb way yuu 
shuuld be deliiereil, weaiiall idl you, we must 
not counsel you. — 

Air. Attorney h.ith told you that tbe king 
luili done it, and neiruit hunin greut raattera, 
and he n bound by law, and be bids us pro- 
ceed by law, >s we are sworn to do, and so is 
the king; and we make no doubt, but tlie king, 
if you seek to bim, he knowing tbe cnuse why 
70U nre imjjrisoned, be will have mercy ; but 
we leave cliat. If injustice we ought 10 deliver 
jDu, we would do it; but lyion iLe>e grounds, 
and these lUconis, and the Precedents and 
Ilesoluiions, He caauot deliver you, but you 
ilLiist be remanded. Now if i hktre mistaken 
ahy thiuc, I deaire to be righted bj my bre- 
thren, 1 have endeavoured to give tbe Kesolu- 
tionsof us all.* 

■ PROCEEDINGS IN PARLIAMENT 



LIBERTY OF THE SUBJECT. 
The Gentlemen continued in custody till the 
!9th ot' January following, when iiis majesty in 
CiiuDcilorderad nil oftliem to be released; and 
nrits being isbued about this time for electing 
mcmbfn of paj-liBnient, to meet March tbe 
ITlb, 1G97-8, those gentlemen who suifered for 
the Loan, uere alecied in iniiny plticrs. On the 
ITih of March tbe houteniet, ana air John Finch 
wns chosen Speaker. On tbe 30ih, the liouse 



' Mr. Wbitlock in bis Memorials of the 
Enjish AtEiirs, p. 8, (eilit. 1739), snya, " Five 
of the icnpiJsonfd genilemen, by Hiibeas Cor- 
pus were brought to the Kin^'s-bencli; aod 
(by their counsel assigned) tiiok ciceptiont 10 
the Heiurn, " For th.ii it had not the cuuse of 
tbeii Ciiuaiitiiient, but of their detainer in 
priso 1, ' per speciale inandatum regis,' which is 
no particular cause; and the Inw being most 
tendet' of ihe subjects liberty," Noye, Selden, 
Brnmston, Callhorpe, and others, who were of 
count* 1 for ibe prisuuera, prayed they might be 
release I and dischnrgnl. — llouth, the King's 
Atlorni y, at another day nrgued in mainte- 
nance nflhc Rflurn. . Hyde, L'bief-Justice, de- 
clared the opinion of ibc court, " That the Re- 
' turn wJMpoailive and absolute, by the king's 
' special command, and the siguificatiou nf it 
' by the lirdi of the*council is only to ioforin 
' the court ; and that the Ilubeas Coipus is not 

■ to return the oause of the iinprisonment, but 
' of tlie Ueientiun in prison ; that the matter of 
' this Return is tulHcient, and the. court is 

■ II) ciuinini' the tiutb of tlie Return, but ir 
' take it lis it is. Su llic Piijoiirr* were 
' manded,"' 



settled their CommitteM ; and theild wm 
spent in opening tbe Grievance*, as Billeting 
cil' Soldiers, Loans b^ Benevulende Mid Privy- . 
Seal, and tlie iiapriaoaing ceruiii) GcnttcmcQ 
who refused to lend upon that Account, who 
■fierwurdi bringing their Habeas Corpus, woe 
notwithstanding remnnded tn piison; uor did> 
the biiuBc incline to supply his msjenty till ' 
these Grietauces were redressed. To wbicb. 

Sir fieinfiiSi^fliotir spoke thus 1 
'I hia is tbs great council nf ibe kiagtUuB, 
mid here (if not here alons) bii majesty may- 
see as in a Crve gUss lite state of tbe kingdom ; 
we are called hither by his majesty's nrits to 
give bim faithful counsel, such as may slancl 
with his bonuur ; but this we Diiiit do witlioot 
flattery : we are sent hither by the ctunmoiu to 
iliscbikrge that trust reposed in us, by delireriog 
up their just Grievances, and iJiis we must do 
witiioiit iL-ar : let us not therefore be like Cain- 
bvses's judges, who being demanded of their. 
kini; wlielher it were not lawful for hiu to do 
what in itself was unlawful f They, rMber to 
please the kin^, than to dl«cliaive iheir owa 
conscieuce:, answered. That the Persian king* 
mi^ht do what tbey listed. This base flattery 
tends to mischief, being litter for repiouf ihait 
imitation ; and as flattery, so fear taWth away 
the judgment ; let us not then be possessed, 
with fear or Battery, ofcorrupbons the bawat, 
Fifr my own pan, I sh^U shun both tliese, aod 
speak my conscience with as much dut^ to hii 
majesty as any man, but not neglectmg tha 
public, in which his majesty and cne common- 
wealth have an. interest : but how can we shew 
our aflections, H-liilst we retain our fears? nr 
how can we ibink of givuig of subsidies, till 
*e know, whether we nave anj thing to give 
or no ? For if bis majesty be pen^aded by any 
to take from bis su^ects wliat he will, and 
where itpleaseth liim; I would ^dly know 
Hhai we bave to give J It ii true, it is ill with 
those subjects tliat shall give laws to their 
princes, and as ill with those princes which shatl 
use force witli those Uw!i ; tJial this both been ' 
done, appeareth by the billeting of Soldiers, a 
tiling no tvai udvBDtB)(eou« to his majesty's sei> 
vice, but a burden tu the commonwealtJi; this 
also appenretli by the last Levy nf JHosey 
againtt un Act of VarUamrM. Agtuu, Ur. 
Speaker, nhat greater proof can there be of 
(his, than tht ieipr'aotaarnt ofdweri Gtntlcacn 
_for the Lmtn, who if they hud done the con- 
trary for fiear, their fiiult bad been as great ili 
theirs tlint were the prnjoctori in it ; and to- 
countenance thpse protwediiys, hath it not been 
preached (or rather prated) in our pulpiu, that 
all we have is the king's Jure Divina, say these 
limo-servcrs ; they fDcsake their oivn fu net lun, 
and turn ignorant sUieim en-: we see liuw wil- 
ling tliey will be to cliause a good ci 
for a hisliopric ; and M r. Speaker 

with other 



61] ffTATB "IBIALS, S Cbaiim I. Hi29-8.— <fe LOxris tfihe SOgtet. [69 

Council, ravHliing at once rbo spheres of lU 
ancient EOTeniment, impriloning ui aii/iout 
either btnl or bond ; they Imre taken From ui, 
what? What «hall I hj indeed, what linve 
tbev left (U? All mean* ur supplying Ibe kin;^ 
■nd ; ■ ' '■ 



; hi* aia}eM;r 
tboui, andlugpeopl^m their ettotei at home-, 
bat will ^u knon the reason of all this t Let 
ulmk back to-the aciion) of former princa, 
and ve dull find that tboie prince* have be«ii 
.iB|reiteat want and eitremitj that macted 
moat of tbeirttibieccs, and niotC unrominBte in 
ibecboice of their minitten, and to have foiled 
moa in [heir andenakings ; happy i» ihtt 
pnwTtbat haib those that are foitlifiil ofhii 
CModL That nhich hii majesty wanted in 
die manifcmeiit of his afiairs concerning 
Fmieeand &»in, I am clear, was his want of 
hitUal cosncil to adiue : the reMOD is plain, 
a uioce ii ttrongeit by faithtiil and iviBc coun- 
cii J I would I could tnil]^ »y, such have been 
tmplo^ abrtMid. I will canfeu, aod Kill 
Aali Ironi mjr heart, he is no |ood sul^ect, nor 
well aSected to his tnajest; and the state', that 
wiU not wiliio^j and frcdj laj don-n his life, 
wken Che end may he the service of his majesty, 
and (he good of the common-weal. But on 
the contrary, when agajnit a parliament-law, 
■be Subject ahall have .taken from him his 
mdi against his will, and his Liberty gainst 
Ue hwB of tbo land ; shall it be accounted 
*ut of dn^ in 0* to stand upon our privileges, 
bcicditary to ns, and conficnied by so many 
act) of parliament P — In doing this we shall but 
(read, ttw steps of our foi«fatheis, vho ever 
yefened the public incernt before their own 
B^ nay, before their own Uvea ; uur can it 
be any wrodg to his majesty to stand upon 
ikem, so a* ibocby we may be the better ena- 
U«d to du his mqesty service. But it will be 
« wrang lo ua and our potlerity, and our con- 
•cwBoet, if we willinjily for^o that which he- 
kojp unu HI by the taw of Ood, and of the 
' iud, and this wa shall do well to ptesent to 
iaiMJNty; We have no cause tO doubt of bis 
Mfotr'a grodon^ acceptatic»). 

Sir Tliomat Wentwortk. 
TMs debate carries a double aspect towards 
tbesotercign aod tlie subject; though both be 
in«Keol,luth are injured and both to be cured. 
Boelj, intbegieatesChiHoiliCylspeak it, these 
■Uegal ways are pDui&lunent and marks of indig' 
Hbon, -l^t rauing of Loam strengthened by 
crnininion, with unheard-of instruction* and 
eatbs; the billeting of soldiers by the tieule- 
msu, aad deputy-lieu teoants, have been as i1 
ibry could have pcDoaded christian princrs, 
je» worlds, that the ri^tht of empires had been 
to take away by strong hands, and ^y have 
adMionred, as hr as possible for them, to do 
it. Tfaisbathnot becndoneby theking(under 
tlv nl easing sbnde of whose crown I hope we 
riwlt ewr gather the fruits oFjutticeJr h"' by 
pn^Ktors, who harecitcnded the prerogative 
of the kinE beyond the just symmetry, whicli 
Dakctk theiweet banuony of the whole: they 
lave brou^t the crown into greater want tlian 
~'er, by anticipating the 



ingratiating ourselves with liim, taking up 
itie root of all properly, nhicb if it be not sea- 
sonably set a^aiu into the ground by his ma- 
jesty's own hands, we shuU have, instead of 
beauty, baldness. To the making of those 
whole, I shall apply myself, and propound a 
remedy to all these diseases. By one and the 
same thing have king and people been hurt, 
and by the same musX t)iey be cured ; to vindi- 
cate, what, new thin^ ? No, our ancient vital 
liberties, by re-inforcmg the ancirnC laws made 
by our ancestors, by setting forth such a cha- 
racter of them, as no licentious spirit shnll dare 
to enter upon ihem. And shall we chink this 
is a way to break a parliament? No, our de- 
sires are modest and just, I tpfak truly, hath 
for the interest of the king and people ; if we 
enjoy not these, it will he impossible for us to 
relieve him. — TTiererore let us never fear they 
shall not be accepted by his goodness; where- 
fore I shall shortly descend to my motions, . 
consisting of four parts ; two of which have re- 
lation to our persons, two to the propriety of 
goods. For our Persons : first, the freedom of 
them from impHsonmuit: secondly, from em- 
ployment abroad, contrary lo the ancient cus- 
toms. For our goods, that no Levies be made^ 
but by pBrtiameut; secondly, no billetting of 
Soldiers. It is most necessary that these be 
resolved, that the subject may be secured in. 
both. 

Sir Benjamin Rudyard. 
This is the crisis of parliuments ; we shall 
know by this if parlinnionts liee or die, the 
king will be valud by the success of ui, the 
counsels of this house will have operations in 
_ii :.:_ I. __■._.■__. 1 -. ir,jp5(y begins to ■ 
tWhe willrelj 
rvntion is natu- 
ral, we are not now on the bent ette, bttt on tbo 
me ; be sure Ensland is ours, and then pruna 
it. Is it tio smiill matter that ne hnve pro- 
voked two most potent kings? We have united 
them, and have betrayed ourselves more tlian 
our enemies could. Men and brethren, what 
shdl we do ? I* there no balm in Gilead ? If 
the king draw one way, and the parliament 
another, we must all sIdL. I respect no par- 
ticular, I am not to wise to contemn what it 
determined by the. major part; one day tells 
■nnther, and one patliaiaent initruccs vtother. 
I desire this house to avoid all contestanons, 
the hearty of kings are great, it is comely that 
kings have the better ol their subjects. G^e 
the krrg leave to come off; I believe his ma- 
jesty enpecLs but the occasion. It is InwAil, 
and nur duty to advise hit migesty, hut tbe 
way is Co take a right course to aCtain the right 
end ; which I think may he tlius : by trusting 

, , ,. — „ — . , — — I the king, and to breed a trust in him; by giving 

•ba shepherd be thus sniitten, sad the sheep ■. him a large supply according to his wants, by 
Mt teutered 1 They hare introduced a Privy- | prostrating om ^nevances humbly at hi* fe«t, 



■m] ffTATB'raiALS, iCoAWul: 19XJ -i^—'Proeeediagt 61 IWbmmrO^ to fH 
AxiJc of iMflding wlut M mute ? iriU ^m Mt 



fern dtence they viH bave the ben w^ to faji 
Wwt, thM n done in dui; to hia m^eaj. And 
I* *ay nil at snre, l«t m all laboiir to set the 
kin*! oil oiv uda, nnd t'lis maj be no hard 
tnaiter, cotiiideHn^ ilie near subiuleDca be- 
tween the lung and people. 

Sir Edward Cokt. 
' DuRi lempus liabemiis, bniium opere 
I am nbantately for e'^''"8 " ^"PP'y *' 
mnjesty ; yet with some cnuljoii. To tell 
you of Itireign dnngprs and Inbred evHs, I 
will not do it; the Slnte is inclining to a 
' sUTDplion, yet nnt incurable : 1 fear not Tureign 
enemies, Go<( seutt 119 peace Rt Imme : for this 
dii'eaie 1 will prupoond rcmcdieB, J will 
(eek nothing out of mine own head, but frum 
mj heart, and out of aeis of parhtuneoC. I an 
not able to 6y at all Grievances, but only a 
Zoant. IiFt U) hut Butter ounelves; who will 
give Subsidies, if the kine may impose nhat he 
will? and if, after parliament, the king' n: 
iohance what he pleascth^ I knoA ihe ki ^ 
nUK not do it, I know lie is a religious kin);, 
free from perwnaJ vices; but he deals "ith 
other men's hands, uid sees ntth other men's 
Cj'es. Will any give a Subsidy tliat will be 
taxed aRer piirfiHmeni at pteasore ? The king 
cannot ta« oiiy bj way of Loans ; 1 differ from 
them, who would have this of Loans go amongst 
- Grievances, but I wOkitJ ha»e it go alone, — I 
vitl begin n-ith a nobl« Record, it chears me to 
(hink'Of it, 3S E. 3 ; it' is worthy to be written 
in letters of gold ; Loantagatnit tkewilli^'the 
Suljtct, art agaiiut Rcaton, aad tie Fraiichiiti 
i^the land, and they desire rettituliiin : what 
a wont is that Frmc/iut ^ Tlie lord may tax 
hi* villein hiyh or low, but it is against the 
ftanehise* of the land, for freemen to be taxed 
tlut bv their consent in parlinmenl, Fratichiie 
a a French word, and m Lntiii it is Liierfni. 
In Maj-na Charta il is provided that, ' Nullus 
* liber humo capialur vel imprisoiieiur aut dii- 
< seisictur de libero tenelnento, sua, Sic. nisi 
' per legale judicium pariuio suorum vel per 
' U^em terra ;' wliich Charter hath been con- 
firmed by good kings above thirtj times. 

Wtwn tbc*e genthinea had spoken, sir John 
C«k,S«ci«E«ry of St»te, took up the matter 
tbr the king, I and concluded for redreu of Griev 
anoot, so that Supplies take the precedency ; 
aadaidi 

Mr. SemlatxC^ok. 

I had nitJwr ytNi woold Iimr any thao me ; 
I -nil! ilot mnfwer what hath been alr^y 
qrabea; my intent ifOM to Kif, bat to quiet; 
Hot 10 provoke, bnt to Ap.peaae : ngy dnire is, 
tliit evci^ one resort to his own heart to re- 
■anite t)t« king and his state, snd to «ake away 
tlte scandal ^m us;-eT«iy one speaks Jromihe 
abundance of Mf heart; I do'cani^ude out of 
««ery one's ct>ndiuion, to give to the king, in 
Kdren-grieMuiccs; dt' the dli^rence i^ about 
the manner. We alt are iahnbiMlits-in one 
house, the Commoti'waaltli, let every one in ^ 
'Winewhnt amend hi<tiouse>;kami;irhat is. -imlss: 
>ntif oiidM bMiselw on £ib,«11I we then 



rather qoench tl>e tiref the ikngerall Mfn 
bend. The way Uiat iipropouadtd, IiaekiK 
to deohne. Ilk^Icourws hiMe baen tskea, it 
must be confessed, tlie redress mMt be by ban 
and punishment : but withal, aitd the law ef 
neoewity ; neoesaity hath no hew, you amat 
abditate the state t* ris, what yoa do by fiea- 
tioB require. Itis wished ne begin withGiier- 
ancte; I deny not that we^ropare then, bat 
shall we offi>r them 6nt I Wdl not tUt aaen a 
cottdilion with Us majesty i Do we not dail 
with a wise king, jealoua of hi* httnoar f AH 
subiidics cannot ndTaatage his majosty lo 
much, as that hii sittMects do «pmt to sop^y 
him; this will amaie the eneiBT botc than ten 
Subsiilies : begin therefare with the king, and 
not wilt ourselves. 

Sir Roba-t PkUlipt. 

This day's debate makes me call to mind the 
nustoni of the Rnmans who had a Mlealii feast 
onoe a year for their slaves, at vAiioh time ttey 
had liberty, without eiceptidn, pi sjMafc what 
Ihsy would, wheKby to ease thnr efflioNd 
minds ; which being Miished, tk^ aereraUy re- 
turaed to their former servitutle. Thi* mafi, 
with some reseaiUaDCe aad diniaetian, wtlt 
set forth our pMsent state; whcm now, after 
the revolution of some time, afid grievtins lof- 
ferings of maay violent oppreasiaBi,'We haw, 
as'tfaose daves had, a day of liberty of tpMeh ; 
but shall not, I trust, be hnvin slaves, fhr we 
nre' free, «e are not bondmen, but sebjects : 
these, after their feasts, wera alaves again ; but 
it is our hope tu return li*emeo. I am glad to 
see this morning's work, to see sutJi a sense 
of the Griatfances under which we groan. I 
seeaconcorrenoeof grief from all parts, to see 
the Sul^ect vrrongad, and a fit Way to sea the 
Sukject righted'; I eipected to see ft division, 
but I sea an honourable conjunotion, and I 
take it a good omen. It was wished by one, 
ihat there were a fareetfulnes» of all ; let him 
not profper that wishetb it not. No, there is 
no such ways to perfect remedy, aa Vb forget 
injuries ; but not 90 to for^, as not to recover 
them. It was usual in Ban>e to bniy all inja- 
rieson purjKxe to recover diem. It was said 
by a gentleman, that ever speaks frteiy, ' We 
' must so govern ourselves, aS if this partiameiu 
■ nrast be the crisis of allpartiatnents, and this 
' is the last,' I hope well, and there will be 
no cause for the kin^, oar head, to e«ce|>t 
asnimt ns, or we against him. The dni^crs 
abroadan>preaentedU)us;heisnoBiigiiihmkn 
that is not apprehensive of them. 

We have pfovolccd two potent kings (the one 
too near, wtio are too Hroogly joined toeethar ; 
t'cfaimeriral, butretJ, I nc- 
mun be done in proportien 
lt( our dangers at home : I more fear tb^ vio- 
latioo'of public Rights at home, than a tnreigii 
enemy. A&st ir he our duties and direction to 
defend fsreign itnngers, and establish security 
against tbem, and shall we not' leok at-tlmt 
which aMI ttMke M abkasd wiiUag U 



the dangers n 



651 



STATE TftlALS. S Craklu I. IGT^-i.—Oe UberiytflheSidifKi. [6G 

that Nflcesihjr is on aroied mui, and ihai Ne- 
caaitj a an ctiI Counwdkir, I would wa ImiiI 



tai WethaU nnt omit to coofide and trust 
iu au^mlj, otbcrwiie our c>nii>ieli vrill ba with 
fean, and [iiai becomes not Englitlmtca. The 
auacctutoned vinteiKei. I bare QotLiiig but a 
ggod meaoiDK, trencb into ail nt hate. To 
(he four Faniculars already mcDtioned, i{>here- 
ia «( suSirr, ooe more may be added, last Cod 
fcctieat 10 Itear me in the day of mj iruubla ; 
sur Keligion ia made vendible by Cumnlissioii* : 
»)ttl DOW a toleration is iranted (litile iau), 
■nd men lot oecDniary annual rates di4]>eiiscd 
■itiiid, wbereliy Papiiu, without fear of law, 
practiK idoJaCi-j, and scoff at parliamtnu, at 
IiM, Slid all. It is nell knuwD, the people of 
diii itatE are under no oLber sabjeotion, than 
■hit they did voluntarily consent unto, by the 
oii|i[ial contract between kiai; and people ; 
aad ai ibere are many prerogaLivei and priii- 
kges cooferred on liw kiog, eo Ibera are left to 
lot Sobject many necessary liberties and Pri- 
Tiirgai, M appears by tbe comnon laws and 
act! of parliaiiieDI, nolwithstAnding what tjiese 
twi) Sycophants, Sibthorp and Man waring, 
bare praUd in the pulpit to tbe contrary. Was 
there ever yet king of England that directly 
Tiolued the Subjects Liberty and Property, but 
ihnr actiosa were ever complained of in par- 
liunent, and do sooner complained of than re-. 
ikeisedP VI £, 3, there went out a Commis- 
4 raise nancy in a strange manner; the 



fitroe of that was, kwk into the atatut* of K. 0, 
•ikich daianed that p&iticillar way, and all other 
iadirea ways. 

Since the Kj^bt of the Subject is thus bul- 
warked by the law of^e kingdom, and princes 
upon complaint bfie redresKd them, I uni 
cnnlideBt ire shall have the li^ cause of joy 
faim bit majeaty. 

I will here make a little digression : tbe 
oanlf , ^meiieishire, I Hne for, were jileastd 
to coinniand me lo seek the removal from 
Ihem ol the greatest burthen ihat ever people 
laSered. It won excellently siiid, C^immTs- 
maaiy Lieutenants do deprive us of nil liber- 
ty ; if ever tlte like was wen 'of tbe tieuteniulcy 
iWl DOW is, I will neverbe beheved mure: 
they tell the people ~tlicy must pay so much 
BpoD wanvQt from a Deputy- Li en tenant. Or be 
bound to tne pMd behaviour, and sent up tn 
iheLordi of. the Council; it is the stranee^t 
«a|ine to rend the libcriv of the lut^ect thAl 
eierwas: there is now a Decemviri in every 
manqp, and omongii that Decemviri, there is 
SMae Clnudius Appiui tluil se«k their own re- 
veuies. We mifiplxiti of Loans and Impoii- 
tioM, bat when Oepuiv -Lieutenants may hcnil 
Warrants to imprison oar |)er«ons at pleasure; 
Jtwe pay not nh.il they ^ent tor, it concerns ut 
to p;eierve tbe country in freedom, and to con- 
nkr of (tua kind of people.^ There is now Ne- 
CMity brought in for an argUDMUtj all know 
TOU III. 



never known that counsel; we ere almost 
grown like the Turks, who send their Janiza- 
ries, who place the hstbert at the door, and 
there he is master of the house. We I'pve S^ 
diers billetted, and Warrants to collect money, 
which if they do not, the soldiers muvt cuma 
and rifle. The Romans sending one into Spain, 
found DO greater complaint, than the di^icoD- 
(ent that diJ arise, from soldiers placed aDiongtt 
them. I would you would look into Tortescoe, 
where be puts tbe prince in mind, what misenr 
be saw, wDere soldier* were put upon the peo' 
pie : Imt, siuth he, no man is forced to take 
Soldiers but lun^, and they are to be paid by 
(hem. 1 desire we resort to bis'mnjesty for 
redress, and to rtduce all into bound). 

The oilier way of Grievance is a Judgmmt 
in a legal course of proceeding; we have had 
three Judgraents of late tinies, all eiceedirfg 
one another in prejudice of the subject: tha 
first wat, that which was judged in all tbrtnalitj, 
the Postnati, Scots, caae, " which people I 
honour; for we find many of them lore us more 
than we do ourselves ; 1 do not com[^)n of it. 

Tire other Judgment was for Impositions, t 
which was given in the Exchequer, and this 
house twice afterwards datnned tliU Judgment: 
how remiss our eyes ate upon that 1 grievo 

There is a Judgment, if I may so call it, a 
fatal Judgment aguinst the Liberty of the Sub- 
ject, Mich. 3 Cur. in sir Jnbn Heveoinehauf'i 
Case, Bi^ued at the bar, and pronounced but by 
otie alone. I can live«ltbough another witbbut 
title be pat to live »il1i lae ; nay, I can live, 
altbouah I pny I'.ncises and Impi'sition^ for 
more than I dr ; but to hat'e my Liberty, which 
is the jiou] of my lire, tukeu from me by pi» ~ ~ 



gnoi; O improvident nnce.»iorsT Oui 
fathers I to be so curious ia providing tb^ the 
quiet possession of our Innds snd liberties of 
pnrliament, and to neglect our penons and 
bodies, and to let them die in pnsi>n, and that 
dttrUTii* bene ptaeita, remediless. If this b« 
law, what da we tnik of our Liberties? Why 
do we troulile ourselves with tbe dispute of 
Law, Fraiicliisea, Propriety of Gnods? It la the 
tamma iotal'a of all miaenrs ; i will not say it 
was erroneous, but I hope «o shall speak our 
minds, when that Judgment comes here to be 
debated. What may a man call thii ? if not 
liberty. Having paiUed in some confusion in 
the tiishion of my delivery, I conclude : we will 
cun'ider two purticulars, his Majesty, end bis 
People. His Mujeaiy culls to us, mid crsnes onr 
assistance to revive again his honour, and the 
hunnuroflhe naliun: the People send us, as 
tie tope, with that directii'o, tlut we shall re- 
turn to them with that olive bninch, tli.it nssu- 
rauce of being freefitnn tliose palumitlrs, niider 



' See ■vol. Ji, p. 559. t I*'''*- P- *' I- 



C7] ^ATE TBIALS, SCajM^ I. iQ28.^Proeeediags in Pariiaiaeianlatiiig la [66 



wtuch ihey ciq hardly breathe. Qui sins ba*e 
brought on lu those aiiseriei, ki U9 all bring 
bur portion to muLe up ilie wall: we come 
with loyal beaitt; liii inajtsty al>->ll &nd, thai 
it is we tliat are his liiiihlul cnuiiscllors ; Jet nil 
(yofhauis he fur renioied from liia majesty, 
since wp cannoi helgihis majesty Hithoui open- 
ii^t our Grieviinct'S: IpI dh diii'hariie onr duties 
■Ili^reiD : yt while we seek Uberiy, we will not 
forget subjection. Al\ tilings a *ta!e can be 
capable of, either blessings or punishments, 
depend OD this nieeting: if any ibink ibe kinK 
may be supplied, and ttie camnionneiiltli pre- 
served without redrea of (>rieTant»a, he is de- 
ceived, 'liie kinKS of Edflaiid were nerer 
mure glorioas tliaii when ibey trusted their 
Bubjecls : let us nhke ill haste to do ijie errand 
for which weAime; let the bouse cousi'ler to 
prepare our Grievances lit fur bis mujesty's 
view, not to make a law to give us new hbet- 
ties, but declaratory, witli respective penalties ; 
so that those which violate them, if (bey nould 
be vile, they should fear Infamy wiib mpn; and 
iJien we shall ihiuk of s.uch a Supply hs never 
priace received, and with our money we shall 
give him our lieorir, and give him a new people 
raUed froio the deud : then I hope this parlia- 
ment will be entitled, ' The Purliiuuenl uf 
* Wondera,' and God'a Judgments diverted, and 
these hpanis of Koodness shall give at life, and 
we bbol^ g" luHne to our o»u couLitries, and 
leave our posterities as free us 
left us. 



Monday, 34 March. Secretary Conk re- 
newed the motion of Supplies fi>r bis oiBJesly, 
yet 50, that Grievanoe!, be likewise taken into 
consideratioo. Then lie mude a meiiuu, 
" That the same Committee taaj bear Pro|>i»i- 
tions of general headi of Supply, and after- 
wards e*) lo otlicr busiiiesie^ of the day for 
Grievances." Others preferred the considera- 
tipn of Grievances, ns a particular mot that 
invaded ttie main Liberty of ihe Sulyect. It is 
the law (said they), that glorious lundnmental 
llighC, whereby we have power tnt;ivei we 
desire but that his majesty may see us hnve that 
right therein, which, next to God, we iiU desirej 
Biid then we doubt nut, but we shut! ^ive bis 
majeily nil supply we can. The time was, 
when it WHS usual to desire favours fur sowing 
of discords, aii Gonilomar did for Raleigh's 
head. But the debates of (his day came to jio 
Bi' solution. 

The day rnl!owina,heing the 25th, Mr. Secre- 
tary Cook tendered the Iwuse certain Pmpo^i- 
tious from the king, touching Supply ; and told 
tliani, That his majesty, finding time precious, 
expects that (hey should bcuii speedily, leit 
they spend that time in dehberaiiou, which 
■huuld be spent in action : that he esieenis the 

not on pri cedents in point of honour. There- 
fore, ta satisfy his luajeMv, let the same Lum- 
nittee take.bis majesty's f roposiciuneinio cod- 



liderolion, and let both concur, whether to sit ' 
on one in ibe foreoocin, or ihe other iti tbe 
alteruoon, it b all one to his majesty. — Here- 
upon the liouse turned themselves into aComr 
ittee, and coounanded £klward Liuletun, esq. 
itu tike chair, and ordered the Committee to 
take into consideration the Liberty of the Sub- 
ject, in hisPenon, B>.d inhisGoodti and also to 
take into conwderation his majesty's .Supply. 
In this Debate the Grievances were reduced to 
pii beads, as to our Penolts. 

1. Attendance at the Cuuncil-boM^. S. 
Imprisonment. 3. Confinement. 4. Desig- 
nation for foreign Employment. 5- Martial 
Law. 6. Undue Proceetlings in matter M' J a- 
dicatnre. 

The first matter debated, was the Subject's 
Liberty in his Person: the particular instance 
was in the case of sit JobaJleveningham, and 
those other gentlemen who were imprisoned 
about Loon-money, and thereupon had brounht 
their Habeas Corpus, had their Case argued, 
and were nevertlieles remanded to prison, and 
a Judgment, as it was then said, wai entered. 
Then .Sir Edmard Coke spoke as follows, 

Itistme, that the king's Prerogative is apart 
or the law oftliii kingdom, and a supreme part, 
for the prerogative is highly tendered andres- 
pected of the law ; yet it hath bounds set unto 
it by tlie laws of England. Out some worth^T 
metnbers of this house have spoken of foreigu 
states, which I -conceive to be a fbreien speech, 
and not able to weaken the side I shall maia- 

That Mr. Attorney (sir Robert Healh) ai»j 
hare soniething to answer uuto, I will speak, 
»itbout taking another day, to tbc body of 
the cause, yet keeping something in store for 
another time. I have nut my Vade eiectim here, 
yet I will endeavour to recite my aucliuritiea 
truly 1 I shall begin with an old authority, far 
' Errorem ad sua principia refarre, e^t ref(J- 

The ground of iMa error was the Sutute of 
West. 1, cap. 15, which saitli, ' That those are 

' not repleviuble, who are couimiitud tin' tlie 
' death of a man, ur by the commandment 
' of the king, or his justices, or fnr the forest', 
(for so it wns cited:} and Stamford 72, ei- 
pouoded hereof, the ' cuniraaudment oj' tbc 
' kin^' to he the commandmcut of the king's 
mouth, or of his council : but it is clear that by 
prtrepiam is understood the commandment of 
the Justices of the Kiivg's bench, and. Coiumiut- 
Fleos: and lliis is ' cmitempotanea expoiiitio, 
' qus est lortissim.i in lege.' 

To tliis purpose vide Wcstm. 1. cap. 9, the 
Book of sh. Q. item, cap. !Si,dtmale/actoribu» 
in pair, the Book oft) H. 4, 5, item, 35, 36, S9, 
c. ijuidem ttaltili, whereby it may appear 
(hat the commandment here spoken ot lo 
be the conimaiidmeut uf the king, is his com- 
mamfment by the Judges, ' PrKceptum Do- 
' mini Hegis in Curia, non-in Camera.' So 
it is likewise token 1 R. S, ct^. IS, in a Statute 
made ia tha ueit king's rei^, and exptesdji ia 



«91 



STATE TRIAI^, 3 Chables I. 16S8.~'~iie Libaiy qftHe Subject. 



Dm, hi 1G2. i 50. M fbl. 194. ^. S4. Shdl 
I nither proTC it b; QMtter of Record ? ' Fac 
• hoc et ines :' it is 18 E. 3, Rot, 33 cotBin 
Kegt, John BilMoD'i Cass : who being cammit- 
Eed sad detained in prisoa by the coniTniuid- 
~ ' of tlie king, wni discharged bj Habeas 
■ eu quod breve doDtici regis uon Tuit 



.'wilhf.ieina 



AUtbe 

liooaredirecttollie point, Bnd oJsothe 16H.6, 
Brooke and Uttletiiii, 9, 6, laoDstniis de I'ait 
18S, per Cur. The king canuut command « 
man lo be Hrrested in his presence : tbe king 
aa arrest no man, because there it no remedy 
ipiiuihiiD, I H. 7,4, like\fiBe^r«rficl. ilat. 
c IS, the kin^'* pleasure is not binding without 
tkaaNeotol' the realm, 

I never read an; opinion against what. I have 
aid, but that of Stamford, mistaken (ns you 
KC) in tbe ground : yet I Say not ihat a man 
aij not be committed witliout precise shewing 
(because in partienlar; for it is suiHcieot if tbe 
OHM in eeneral be shewed, as Tor Treason, &c. 
1 E. i, list. dijTMn genJ. pruon. nutlut habtat 
jtJuiitM, &c. there tbe cause of imprisoDment 
nut be known, else [be statute will be of little 
foite; tbe words thenofdu plainly dentoDstrale 
ilieiot«ntofthestatutelobeacoordiBf;ly. Iwill 
toadude with.tbe hiebest authority, tbnt is, 35- 
tbtp. of the Act* of the Apostles, the last verse, 
when Sl Paul saitb, ' It is against reason to send 
' a man to prison witliout shewing » cause.' — 
Tiat, Jdr. Atiomej, according to the rules of 
phfuc, 1 bare given jou a preparatiTe, which 
■loth precode a purge. 1 have, much mom in 

Mr. Creumtll. 
I Etand up to speak somewhat coDcerniog the 
fmn of tbe lohject* grievances by impnsoo- 
tmt of their persons without an;r declaration 
«f the caose, contrary unto, and in derogation 
o(>be fandamental laws and Lberties lif this 

* " I rise not to make an oignment in this 
IKiist, the greateat thai aver was in this place, 
Kcliewhere. This liberty, which all men, us 
•rll lawyers as others, believe, as I hope, hath 
been ciolated, though not without complaiiit : 
bit eiccpt ill this late course, I am confident, 
VIS never adjudged before. The Habeas Corpus 
■M brought, the cause irat returned by com- 
lund of uie king, intimated by the lords of the 
eoaocii; Argomeot was mode; seven acts of 
pwhsment wero menriaDed,and all were passed 
oier, and only commended ; and upon that a 
peclaration of Judgment was giveu,*nd to ad- 
judged; * That upon any commitment by the 
' king or the council, no enlargement can be.' 
I ever observed, in any great cause, solemn or- 
•nments used ta be made. We see his majesty 
ud his conocil are hath interested in ibis. I 
'a desire that some of the king's counsel may 
■peak what theycan to satisfy us of this great 
powsr." MSS. Pymmii apud viruni honoratum 
Tbomatn Hales baroneltum. See Seldco's Life 
in bij Works, vol. I, p. 13. 



[TO 

kingdom. I think I am one oC tbe Puisnes of 
our profession, which are of the members uf 
this house ; but howsoever sure T am in tliat 
respect of my owtl iiiabilities, 1 am the Puisn» 
of all the whale house ; thoelbre, according to 
(be usual cuurse of iiudi^nts in oui profession, I 
(as tbe Puisne) speak first in time, because I 
can speak lea^t in matter. 

In pursuance of which course I shall rather 

tut the case than argue it: and therefore I shall 
umbl^ desire hrst of all, of this biiiiourabla 
huu4« in general, tliat tbe goodness of the causa 
may receive no prejudice by the wealneu of 
my argument; and next of all, of my master! 
bet« of the same profe^iiun in particular, that 
they bv their learned judi^ments will supply tlie 
great defects I shall discover by dacloring of mj 
unlearned opinion.. 

Btfore,! speak ofthe question, pve me leave, 
as an eoirance thereunto, to speak brst of the 
occasiuu. You ■bHll know, Jostice is the life 
and the heart's blo'KJ of tlie commonwealth; 
and if the commonweaUh bleeil in the master- 
vein, all thcbalm in Uilead is but in vain to pra- 
scrve this our body of pubty from ruin and de- 
structiiin. Justice is botli ' coluimiaet corona 
' reipublicB,' she is both th« column and tite 
pillar, the crown and the glory of the common- 
wealth. This ii made guud in Scripture by the 
judgment of Solomon, ihe wisest king that eter 
reigued on earth. Fur 1, she It tbe pillar ; for 
he ssith, that bv Justice the throne shall be es- 
tablished ; S, she is tbe crown ; for he saitb, 
that by Justice a nation ii exalted .-~^Utir lawa, 
which are the rules of this Justit^e, they Hre the 
ne plia uUra to hoiti the king and tiie subject ; 
and as ibcy are the Hercules' pillar, sii are thej 
ttie pillar to every-Hercules, to every prinee, 
which be must not pass. Give lift leave to re- 
semble ber to Nebuchadnezzar's tree : fur she 
is so great, that she doth shade nut only the 
pniace of the king, and the house of (be nobles, 
but doih also ihelter the cottage of tbe poorest 

Wl>erefore, if either now tlie blasts of indig- 
nation, or tha unresistable violator of laws, ne- 
cessity, hath su bruised any of the branches of 
thia tree, that either our persons, or goods, or 
posiessiuns have not the same slielter as before; 
yet let us nut therefore neglect the mot of (hi* 
great tree, but rather with all our possible en- 
deavonr niid unfeigned duty, both apply fresh 
and fertile mould unto it, and also water it even' 
with our own tearf, (bat so these bruised 
branches may he recovered, and tbe whole tree 
again prosper and fluurisli. For this I have 
learned from an ancient Father of the Church, 
that ihouph ' preces reguni sunt annats ,' yet 
' urma sobdituruin ' are but only ■ preces et la- 

Iknow well that ' corregisinscnitabile;' and 
that kings. althtiutLb thej are but men befiire 
God, yet are they Gods before men. And there- 
fore to my gracious and dread sovereign, (whoie 
virtues ore true qujlitiet ingcneratc both in his 
judgment and nature) let my arm be cut off, 
nay, let my soul not Ure that day, that I shall 



71] STATE TRIALS, 3 ChaklmI. lfieB.—J^«c(witB«i » P«rl««««i rearing to [19 

iterwKHf accept aTcmed;; for tbc law ht^a 

B dumngen »unici«Dt recompeuc 



dare to lift up mj ann to touch that forbidden 
tniic, (bose Mowen uf his princel; crown mid 

But /et in our Eden, in thia j^rden of (be 
cvminomvEnlth, as there are the Jimeert aj thr 
lUK, nhich are so glurious Ctiat they are t'> be 
bandied only by tojmI majcaiy ; so b«; tliere 
b1»> siinie daisies and Kbulesoiiie herbs, wliicii 
ttcrj ciuiuDon b&nd tliat lii-es and labours in 
this Kt")eD may pick and gather up, and take 
comfort and repose in ihsm. AmoiiEit all 
which tbis ocuJu diet, this bona Ubertai it one, 
tttd the chief one. 

Tiius moch in all humbleneM I prcranw to 

rik for the occasion. I will now descend lo 
qnestion ; wherein 1 hold, (wilh all dutiful 
aubmtsaiou la better judgments) ihnt iheee acts 
of puvteriti impritKitiiiig and coiltining of his ma- 
jetty's subjects ill such mfinner, withtnit any de- 
chiruti')n of the cause, are against the funda- 
mental laws and liberties of this kingdom. 

And tbr these ceawns thus briefly drawn, I 
C«ndud«, 

1. 1 bt first, from the great farour which tlie- 
law doth gii« <.n[(i, ni>d the great care which it 
halh ever taken of the libtrt* and sat'etv of ihig 
kiugdom. I should not nicd to take Che qnrs- 
I (ion in pieces, nor handle il in paits dividedlv, 
hut irone entire ; because I Uild nu other dif- 
ference between Imprijonment and Coiilinr- 
meiit than ontj'tliis, that one hath a less and 
■traiter, the other a greater and larger prison. 
And this word Cuufiiienieiit not being to be 
ftonrt in anv_ ooe case of our law, if therefore it 
Is becunie the language ufstiile, it i* too difficult 






o define 



To proceed therefore in maintenance of ray 
fir« reason ; i find our law dotli so much favour 
the Subject'!' LJberiy of hia pervin, that the 
body of ainan was not lifthle to be arrested or 
Imprisoned for any other cause at the common- 
law, but for force, and things.done against the 



r of the land) so abborreth 
those that commit it she accounts her capital 
memies, and i here Fore il id subject their bodies 
to imprisonment. But by the statute of Marie- 
bridge, Cap. 94, which was made 35 H. 3, who 
was the eighth king from the Conquest, because 
bailiffs would not render accomits to their lords, 
It w»s enacTed, that their bodies should be nt- 
. tachcd : And afterwards by the Statute 33 Ed. 
8, IT. who was the eleventh king arier the Con- 

Esi, because men made no conscience to pay 
tr debts; it was eoacteil, that their bodies 
ihould likeniie be aitachcd : But befoK those 
•Utntes no man'5 body was subject to be taken 
nr imprisoned otherwise than as aforesaid. 
Whereby it is e.ident, how much the comrann- 
luw fuvoi'red the Liberty of the Subject, anil 
protected his body from imprisonment. 

1 win in o re tiie reason further by a rule in 
hw, and t<inie cases in law upon that rule. 
lliernlpistliisThat ' Corporal is in lurin non re* 
' ci[jite9limaiionem fefuturo;' Soasiftheijucfr- 
tion be not for a wrong done to t^ie person, the 
taw will not compel Um lo sustain it, and 



..'hich is corporal. 

The CBSM in law to prove this, shall be these. 
If one menace roe in my goods, or that he will 
burn the erideoce of my l-md which be hath m 
his custody, ualew 1 make unto him' a bond : 
there I cannot avoid the bond, by pleading at 
thiainenace. But if he restraiiii my pcrvm, or 
threatens me with batlety, or with burning mf 
house, which is a protectioa for my pciaon, oc 
with burning an initrum«it of manumibMon, 
which is an evidence of my cnfranchiseiiieDl ; 
upon these menacM or dares, I shall avaid tba 
bond by plea. 

So if a trespasBM drives my beast ov«r an- 
other man's ground, and I punue to reacue it} 
there I am a trespasser to him od w hose growd 
I am. But if a man assault my person, and I 
for mj safely fly over into another man's 
ground, there I am no trespasser to him, fiir, 
> QauA quis in tuitione sui corporis feccrit, 
' jtire id fecisse exist imatar.*- 

Nay, wbich is more, the Common-law did 
ftivoDr the Liberty not only of Freemen, bnt 
even of the persons of bondmen, and villeint, 
.who hftv no ppnpriety either in lands or goods, 
HS fn>emen have ; and therefore by the law, the 
lonl could not ra»im his villein; nay, if the 
lord coranwnded anotlier to beat his villdn, 
ahd he did it, the vitleio should have his action 
of battery agMnst hiui for it. — If the lord matle 
a lease for years to his villein, if he did plead 
with Ns villein, if he tendered his villein to be 
champion for him in a writ of ritht; anyof 
those acts, and manv other, which I omit, were 
in law enfrauchiseiuents, aad made ihesa »il- 
leiM freemen. Nay, in a suit brought against 
one, if he by attorney will plead that he ia » 
villein, the law is so cafvflil of tteedom, that it 
disallows this plea by attorney, but be must do 
itpmflriopeFTiMW, because it binds his posteritr 
and blood lo the viUein's also. And thus much 
in the general for my first retaon. 

a. My next reason is drawn by an omiment 
i mafan ad minui ! I frame it thus : Iftbekii^ 
have no absolute power over our lands or 
poods, then H J'M-tityri not orer our persons, to 
imprison them withutit declaring the cause, fijr 
our persons are much 'more worth than either 
lands, or goods ; -which is proved by what I. 
have said already, and Christ himself makes it 
clear, irtiere he saith, ' An non est corpus supra 
■ vestimentnm f Is not the body of more noith 
than the rahnent? Where the Canonists say, 
that vatimtntiim coroprehendeth all outward 
ihingt which are not in the same degree with 
that which is corporal. And our law maketb 
it nISD plain; for if a villein purchaseth frank- 
land, this makes it villein-land according to tba 
nature of his person ; but it holds not i cin»> 
vena, frank-land shall not free the person. 
Now that the king hath no absolute pow«r 
either over our lands or goods, I "ill only at 
this time but put a case or two : for without 
pmoF of the premises, my ebnchision wmttd 



nj 



ffTATE TMALS, S Chaklu L 1038 — Ike IMgrlg qfite BJgttt. 



[" 



Fint forXand : The km; c«Rnot by fait let- 
Ul tp tcu t sake the w>q nl' mi tJi«i heir 16 hii 
&tlier, nor ca taj otber, Ibr be ca&not diiin- 
heiuttie ri{hi heir, saiLh the book, nor ilo do 
pr^iiJ>ce lo the lord of liii eseleai. 1 he king 
bj liis prerugutve shall (jay no toll for Cliiujjs 
loi^bt in Riirs and mHrk«i»; Ijut acuttomfor 
pajiog toll to ce over tlie wil aAd freeholds of 
imaOitt (hall bM (he kto^, for thn toudietli 
lt« iahnitancc of the Mbj«ct; and therefare 
th* king ihall not h«Te to moch a< a oay over 
lu laadi wiibout psviw; and if not a w«;, 
tkeneertMnty not the land ittelf. 

Neil fin goods ; If a man baih a jewel in 
pgefbr tCD pouad, &c. and is allainled for trea- 
H«, d»e king rimll not have this jewel, if he peji 
bM dw ten pound. So if cattle be distreined, 
adtheowner ofthm dfierwardt be itisinted, 
}«t the kinf shall not hare ibein until he luve 
■tided th&t for which the; were distr«ine<l. 
ind if in these cases, where the ownen of the 
|mkIs kre mch capital offenders, the king can- 
sot bare them ; much less shall be hare them 
wkeo the owner is inDoeeni, and no offender. 

Nay, I maj well nj that alinoit every lenf 
Md page of hU the valnmes of our Common- 
I*w prove this ri»bt of propriety, this distific- 
lioaorinaiM and tuunr, as well between kine 
sod (ubject, «s one subject and anotliei;: ind 
Iberdure my conclusion follows. That if the 
peregatJTe extend not neither to lands nor to 
fDods, then i fortiori not 10 the penoo, which 
11 more worth than either lands or goods, as I 
nid. And jret I agree, that hj the very law of 
aiTure, service of the petson of the subject is 
ihe to his soTereign ; but this must be in such 
Ihingt which art not a^nst the law of nntutv : 
but to have the body imprisoned without any 
ttDse declared, and so to become in bondagp, I 
■m lare is contraiy unto, and against A* law 
rf BMare, and therefore not to be infbrced by 
the soTETci^n npon his snhjects. 

3. My Dest reasua is drawn eb inutili et in- 
CMOMtto. Forihe Statute dejranstntibnt pri- 
Mtam, made J E. 3. i*, ' quod nuUus rjui pri- 
' Mnam fregenc, subeac judicium viisc vel mem- 
' broniiB pro fraclione pmonn tantum, nisi 
' causa pro qua capiu« iinpriranetur tale judi- 
'ciom i^nirnt.* Whence this conclusion is 
dtarjy gathered, Thnt if a man be cominitted 
■0 prison wiUioat declaring what cause, and 
then if either malefactor tfo break tiie prison, 
•r the gaoler solfer him to escape, iJbert the 
Kisoner so escaping had Ciimmilted cranta 
!*»« majntatii, yet neither the gnnlcr nor nny 
Mber ilnit procured his escape, hy the law suf- 
fer any corpciral pnnishinent for ketting bim Bt 
ts<^,' which, if admilted, might proi'e in con> 
Kqueoce u matter of great danger to the cool- 
Bumwealtb. 

4. My neit reason is drawn 06 rrgii honore, 
from that ereat honour the law doifa utirihute 
«ato sovereign majesty ; and therefore tJie rule 
•f law is, that ' solum rex hoc non potest ft.- 
'eere, quod non potest injusie agere.' Ai>d 
l^nefbre if a subject bath the donation, and 
■^ kiif tbe pmentMioD to a duoch, wberv- 



BDto the king prennia widuot Am wbjoctV 
noniiiiauoD, hera liie juart inipedil lie* aeaiott 
the incumbent, and the kii^ is in law no <lt*7 

And Hotsey, Chief- Justice, in 1 H. T, fbl. 4. 
sauh, That sir John Markham told king Bdw. 
4. he could not arrest a mim either fur tmason 
or fdony, as a subject migbt, becaase that if 
the king didwrong, the party could nut have hia 
aciiiHi sgHiost him. 

What is the rei«m that aa action of false 
imprisonment ties agoiost the Sheriff, if he deck 
not reium the king's writ, hy wliioh he katb 
taken the body of the subject, but this, beeatis» 
tbe writdodimDiter nmrrarecatuaw eMplionit, 
(which if it doth dm, h thai! abate, and is void 
in law) and being fctumed, lite party wbea W 
appoan may know what to answer, Mid ttw 
court upon what to judged And if the king'* 
writ under his gr«at seal caiusot imprison the 
subject, unless it contains the cauie, shall then 
the king's warrant otherwise do it vntboM cuu- 
tainini; thtf cause ; that bis judges upon Tetajo 
thereof may likewise judge of the sam^ either 
to remain, or judge tbe party impriaoaed } 

I should nrgue this point mora dosaly iumm 
the statute of Mogoa Charta SO. ' Quod ntdlas 
' liber homo imprisaneiuT;' llie Statute of West. 
1. cap. 15. for letting peraoni to bail; aod the 
Judgmenu liuely ^iven in tiM King's-Beoch ; 
but tbe latter of these Statutca liaviug been hj 
that bononrable gemtcmaa sir £dwaiid Coke 
(ta wlmm tlie prDlessors of the law bsth ia thia 
Had ail succerding aces, are, iind will be much 
bound) already eipouaded unto us, and that 
also fortified by thinie uaay cotempoiary expo- 
sitions and jadgments by bin leariwdly cit«} ; 
and there being many learned lawyci* here, 
whine time I will not waste, wfan were prvsent; 
and some of them perhapsuf counsel in tlie late 
cause adjudged in the Kiiig's-Bench, wlicre ycNi 
(to whose person I now meak) do well kttuw I 
was absnit, being then ot counsel IB a ciDSe in 
another court, and my practice being hi the 
country, far reiDolefrOTi the Treasure of Anti- 
quity, and Keciwds conducing to the clearing 
of this point; thei*tore the nurrownMi of my 
un deists tiding commends unto me sober igao- 
ranee, ritther than presnmpiuoiiH knnwle^, 
sod also commands me no further to troaUe 
your patience. 

But I will conclude with ttint which \ find 
reported by sir John Dntis, wbu was tbe king's 
.Serjeimt, and so, by the doty of his place, wouM 
no dou'it maintain to his utienDoit the prerogtt- 
tivej »f [he king his royal master; and yet it 
was by liiiii thuf <snid in those Repnrta of Ihs 
upon the case ofTanistry Customs, p. ^9, That 
the bii]:;s of Rnghind ilways hive hwl a monnr- 
cby-Toyal, and n'rt a uionart'liy-fteignoral: wlierc, 
under the fifrt (>aiih lie.J •' ilie subj. cts are 
fre'meu, an'1 lidie pr<ipnety 'i<: thilr goi'ds, 
and free-hold, «nd inheritance in tlii if l.n'ls; 
but under the latter th> y are u u.leiiis and 
slaves, and bsve propriety in nothitig. And 
therefore (saith he) when a tovhI mn '^rch 
nMkes a new conquest, yet if )>e receive* any 



75] STATE TRIALS, 3 Cu auk I. l62a.~Proceedmg» in Parliament r^iag to [7ff 

■ee how thin Jui^meDt lies against m, and 
what the Judges do say coacerBiog tb« taae." 



of hii natton'i ancient iohabiuinis into his pro- 
tection, tfaej and tbcir heirs after (hem Minll 
enjo; tbeir lands and libcrtiei according to the 
law." And there he voucheih thli Precedent 
and Judgment Tollowing, giveu before WUliam 
the Cooqueror himself, viz. " That one Shei^ 
bom a Saxon, at ibe [ime of the Conquest be- 
ing ooDf r ol a castle and lands in Norfolk, the 
conqueror gnve the same to one Warren a Nor- 
man; and Sherbom djting, the litir claiming 
tba some bj deKcnt accoiding to the law, it 
was belbte the conqoeror himself adjudged Ibr 
the heir, and tliat the gift thereof hy the Con- 
i|iteTor WBSvoid." 

If (hen it were tbus in the Conqueror's lime, 
«iid by his own sentence and judgment, and 
hath so con[inDed in all the succesaions ol' our 
king! ever since, what dnutt need we have, hut 
that his most eicelleut majestj', upon our hum- 
. ble Petition pnwtraieJ at his feet, (which, as 
was well said, is.the best passage to his heart) 
vill voocbskte unto ns our ancient liberties and 
birtb-rights, with a thorough reformation of this 
and otber just grievances? Andsn I huiublv 
crave pardon of this honourable house, that I 
kave tnade a short lesson long. 

Upon this and other arguments made in this 
Cbsb of tbe Habeas Corpus, the house referred 
tbe wbole bunncss to a Coninittee, to examine 
all the proceedings ; concerning which, Mr. 
Selden uierwards made report to the house, 
that Mr. Waterhouse, a Clerk in the Crown- 
Office, being examined before tbe Committee, 
did confess, that b^ direction from sir Robert 
Ueath, the king's AttomejT-Ceaeral, he did 
writ« the draught of a Judgment in the Case 
before-mentioned, which was delivered to Mr. 
Attorney. And Mr. Keeling being examined 
before tbe Committee did confess, that after 
Mich, term last, the Auomej-Gcnerat wished 
him to make a special entry of the Habeas 
Carpus: to which he answered, he knew no 
Special entrj in those cases, but only a RaaU- 
IHur : but «aid to Mr. Attorney, that if he 
jJeased to draw one, and the court after assent- 
ed to it, be would then enter it. The Attorney 
did accordin^y make a draught, and the copy 
thereof Mr. Keeling produced to tbe commit- 
tee. And farther said, thut he carried this 
draught to the Judget, but they would nut as- 
•eot to a special entry : nevertheless, the At- 
toroey-Ocneral divers time* sent lo him, and 
told him there nas no remedy, but he must ru- 
ler it. Yet a week before tlie parliament met, 
the Ailomn-Genernl c«lled for the draught 
again, which accordingly be gave unto hini, 
and aever beard of it more. 

Sir Robtrt Fhilipi, upon this report, gave 
his opinion, " That this intended Judgment in 
the llnbeas Corpus, was a draught made by 
some man that desired to strike us from all our 
Liberties: hut the Judges justly refused it. 
But if the Judges did intend it, we sit not here 
(said he) to answer tbe trust we are sent for, if 
we present not ibts matter to his lusjest^. 
Let tbis businen be further searched into, and 



March ST. The house proceeded in further 
Debate of the liberty of tbe Subject. When 

Mr'. HackntU resumed the debate of tbe 
matter concemiog the Habeas Corpus. 
JIfr. UtchetU. 

The lute Judgment, said be, which lies in 
bar, is only aB«ward, and no Judgment ; and 
in the L. C. Justice's aisumeiit, chere was diV 
word ^>oken. That tbe kimg might cummit or 
detain without cause. For the kiug to commit 
a man, is indigauBt rege : mercy and honour 
flow immediately from ttie king, judgment and 
justice ate his too, but they flow fiom liis mi- 
nisters; the sword is carried before him, but 
the sceptre is in his hands. These Siie true 
emblems of a good king. The law admits not 
the kinu's power of detaining in prison at plea- 
sure. In ancient times prisons were but ' pro 
' custodia, carceres non ad pcenam, sed ad 
* custodiam.' Admit tbe king may commit a 
man, yet to detain him as long as I.e pleasetb 
is dangerous, and then a man shall be punished 
before bis offence : Imprisunment is a macera- 
tion of the body, and horror to the mind ; it i* 
vita p^ori»orle. 

Then tbe honse commanded that Case In the 
Lord Chief Justice Anderson's Book, all of bis 
own hand-writing, to be openly tetA, The 
word) of the Report were these : . 

" Divers penons fueront committee a seve- 
ral temps a several prisons, sur pleasure sau* 
bon cause pane de queux esiiant ameines en 
Ronck le Uoy. £t pa^te e% se Commune . 
Banck tueront accordant a la ley de la terre 
mise a targe et discharge de ]• imprisonment,' 
pur que aucuns giants fueront ostendus ct pro- 
cure un commandment a les Judges que ils ne 
feni iuent apres. Ceo nient meens les Judges 
ne surcease mes per advise enter eux ib fesoi- 
ent certain Articles le tenonr de qneux ensue, 
et deliver eui al seigneurs Cbaoncelor et 
Treasurer et eux suWribe avec toute lour 
maines, lea Articles snnt come enauiint." 

" We ber majesty's j us tices of both benches, 
and barons of the Exchequer, desire your lord- 
ships, that by some good means some order 
may be taken, that her highness's subjects may 
not be committed or deiaided in prison by com- 
mandment of any nobleman or counsellor 
against the laws ot the realm ; either else help 
us to have access to her majesiy, to tlie end to 
become suitors to her for tlie same ; for divers 
have been imprisoned for tuinJt ordinary actions 
and suits at the Common Law, until they hav« 
been constrained to leave the same against 
tbeir wills, and put the same to order, albeit 
judgment and execution have been had therein, 
to tlieir great lotses and griefs ; for tbe aid (^ 
which persons, her majesty's wtils have sundry 
times tiecn directed tu sundry persons, having 
the custody of such peiMns unlawfully impri- 
soned, upon which Writs, no good or lawful 
cause of imprisonment bach been returned or 



nj 



^AT£TIUA1£, sCnARLisl. less tht LOeriy qf Ihe Su^al. 



[78 



cntified. Wbsnupon, seconding to Ae laws, 
the; imra been dischttrged of ibeir impriton- 
nrat; wme ot frhicli persons no deltiertd, 
L»c bees agalu comaiitti^ct to pnvin ia lecret 
plaCM, Hid not [o an; CDmoioii or ordinarj 
pmoD, or lawful officer or sheriff, or otber Isw- 
ilillj autlioriud, to bave or keep a gaol; so 
thit upon complaint mads for tberr deliverr, 
the queen's courts cannot lelt tn whom to di- 
rect her iDBJesCj'a writs; and bj thir means 
jastke cannot be done. And moreover, dirers 
nScen and seiieaats of London have been 
miaj timei committed to prison for lawful ex- 
enilmg of her majesty'* writa, lued forth nf 
bcr majeMys courts at WesCminsCer ; and 
IbcrebT her majesty's lubjacts and officers are 
w tem6ed, that tKey dara not sue or execute 
ber majesty's laws, her nrits and command- 
menti: dirers others tuiTe been sent for fay 
ponifsnts, and broiigbt to London from iheir 
dwrlliniui, and by unlawful impriionment have 
beea comtrained, not'only to withdraw their 
IsaJiil wits, bat bMe also been compelled (n 
piy the puraivanls, lo brini^ing such persons, 
gnat sums of money. Ail which upon com- 
plaint tbe judges are bound by office and oath 
10 relieve and help, by and according to her 
■ujcsly's 1b«i. And when it pleaselli jouc 
lofdBhips to will diven of us to set down in 
what cases a prisoner, sent to custody, by her 
majesty or. her council, are to be detained iu 
luisiMi, and not lo be delivered by her mnjrsty'a 
Court or Judges; we think, that if any person 
be commilted by her toujetty'E command, fnim 
tier person, or by order from the Council-board; 
Bad if Boy ooe or two of her council commit 
one for High-Treusiui, uicb persons (o iu tbe 
cases before committed, may not be delivered 
by any of ber coucts, witbuut due trial by the 
law, and juds;meut of acc)uittBl had: never- 
(belcM the Judges may award the queen's writ 
to bring the bodies of sucb prisoners before 
them 1 and if upon return thereof, tbe causes 
ofibeir couimiiment be certi&ed to tbe judges 
B> it ought ID be : iben tbe judge; in the cuses 
before, ought not to deliver him ; but to re- 
nuuid him to the place from whence be came, 
which cnunDt be conieniently done, unless 
notice of the cause in general, or else in spe- 
ctil, be i^iven to ihe keeper or gaoler that shall 
haie the custody of sucb prisoner." All the 
Jad^ and Barons did subscribe their names 
to these Articles, Ttr. PaKUM Elix. and de- 
livered one to the Lonl-ChaDcellor,and another 
10 tbe Lord Treasurer: after which time there 
(&I follow inoto quietness than before, iu the 
came betbre-mentioned. 
After the reiding of this Report, 
Sa Edaord Coke said, That of my own 
knawledge this Book was written with my lord 
AodenoD's own hand, it is no Hying report of 
a young student. I was solicitor then, and 
treuurar Burieigh was as much against com- 
aiitnieiit as any of this kingdom ; it was the 
Wbiie SiBFes, that made chisstir. Let us draw 
(Dwardi a concluaion : the'quesdon iSj Wlwlher 
a freeman can be impriMaed by ttia kiiig. 



without settinjE down tbe cause P I leave it a* 
bare as £sop's crow, they that argue agailM 
it, ' Humorei moci at non remoti corpusdA^ 
' struuoi.' It is ft mnxim, tbe common lair 
lias admeasilred the king's prerogative, that in 
no case it can prejudice the inberitunce of the 
subjects; hud C)ie law given the prerogative to 
that which is taken, it would bave set some 
time to it, else mark nbat would 'follow. I 
shall bave an estate of inheritance for life, or 
for years in my land, or propriety ia my goods, 
aod 1 shall be a tenant at will lor my liberty ; 
I shall have propriety in my own house, and 
not liberty in my person, ' Fertpicue vera ooa 
' sunt probanda.' The king huth distributed 
Ilia judicial ^wer lo courts of justice, and to 
ministers ot justice ; it ia too low for so great a 
monarcb as the kin^ ia, to commit toeu to 
prison ; and it is ngainit taw, that men sliould 
be committed, and no cause shewed, I would 
not speak this, but that I hope my gracions 
kinij wilt hear of itt yet it is not I, Edward 
Coke, that speaks it, but the Reoords tbat 
speaiis it ; we have a national appropriate Law 
to this naitoii, ' diiisi? ab orbe BHiwnia.' 
■Mr.Seldea. 
I was sent bither, and Crusted with the lives 
and liberties of them that sent me. Since I 
came, 1 took here an oath to defend the king's 
prerogatives and rights. I profess, though 
once 1 was of council, and then I tpoke tor my 
fee, for the gentlemen in their Habeas Corpus; 
yet now I speak according to my knowledge 
and conscienix. 

The question is. Whether any suiject or 
freeman, that is committed to prison, and the 
cause lint shewn in the Warrant, he ought to 
he bailed or delivered ? I think, conhdentlv, it 
belongs to every suliject that is not a viUcin 
that he ouuhc lo be bailed, or delivered. 

I shall speak in tiiis course. 1. I will shew 
the ReisoDS. S. Acts of Parliament. 3. Pre- 
cedents. 4. Answer Ubjectiiiiis. 

I. Reasons ilrawn from three heads : 
1. From Remedies provided by ihe common 
law aeain^t imprisomnent. For that precious 
thing of Liberty there are divers renedies, by 
which it appi-ars, if no kno*n cause be of tiir- 
ther detainment, be is to he delivered. I will 
not mention tbe action of false imprisonment; 
but tbe writ A «dip el atia which i* not lakcu 
awny, fiir that it ii in Magna Cbnrta. That 
writ was seat to know, if the parly imprisoned 
were committed for any cause of malice and 
hatred, and this was to be enquired of in-Jury. 
For tbe writ de homine repUgiaado, if one be 
iiaprisoned under the shentf, he must bed*li> 
vered, if he be not detained for a cause tor 
which he is not replevisable. For the Uabeet 
Corpns, the Keeper is to bring the body ' ad 
' subjiciendum ec recipiendum.' If there ba 
no cause, how can tbe Coart consider of th« 
cause i For appeal, by Che old law in tlie time 
of H. 1, one impristmed might bave his appeal^ 
as appears by Bractun, c 35. lii. dt conma. 
Fleta, r. 48. 
3. The second reawa is firou the oontidwa- 



79} ?rATETRlAI^,'3CBAM.8g I. ]62S. 

lioB ef Frrempn aod ViUeini. All admit 
are tibtri hominet ; but dn but consider 
diffnciice of ViUeins >nd FreeoisD, and I ki 
aa dilTerence in their persons, bat only ibe 
cannot be impriionedi m the uther n 
Whoerer cui tiij[ 1 cao iinpri»in him, I 
•&J he is cu<r villein. It is Uie sole di 
«f Fiermen, liiaC tbejr cannot be imprisoued at 

Eleanure, In iiiri time none hot Jews and Vil- 
irns could be imprisoned, and confined. Tbe 
3rws wtre as demesne villeini of iIk binf; ; be 
could tend to them lo lend mouey, and if they 
did not, lie imprisoned Ibern. 

3. From matter of PuDishmenC. When any 
thing is decbted by any net* atatuie to b« nn 
oUence, it goes', Thiit he shall be fined and im- 
priwned. To what end nere this in any act 
of pariiameiit, if imprisooueiit wai at the 
kine'i will } 

II. For Acts of Parliarasnt, Magna Charia, 
c. 19. In that net nhen it wm first made, it 
waa ' nee eum in curcere mittimus,' IT Jub. 
that statute waa made, and then it had those 
words. The courae tlieu was to scod down all 
acts of parliament and charters ti> tbe abbeys 
ro be enrolled. .Matthew I'aris, 3-lS. & M'3. 
recites thHtcharttT of 17 John, 

Tbey object in Ma^a Charta, there 
' terTiC,' and - ' ' 

imprisons do man at all, but it is meant the 
process of law, 5 E. 3.. Upon some occauon it 
was eiiarted, Vhiit none be attached contrary 
lo the Urent Chaitt'rnnd tbe luw of the Innd. 
125 E. 3, diven were committed to [h<i Toh er, 
«nid no man knew wliereiore, whcreupnn whs 
35 E. 3, made, 98 F.. 3, c, 3, 36 E. 8, n. 9. is 
aiguTnrtiniprj^onnitTitj'perBpeciBleniBndatum.' 

Hi. For PrecetleiJls, 18 K. 3, rot. 33 H. 1, 
H. 8, rot. 9, iS Jac. rot. 1S3. 

IV. Objectintii n^pinst it. Firft, Against 
(be re-jaon ; a man may be cammitlcd tor a 
point of atale that may not ht known : I un- 
deritaiid nut muUen of state; I expected not 
the objactiun in a CnurC uf Justice; and it 
may hi? a word for any king tn try the courage 
of nisjuclge<i, and to iiinpnte tlirre isn cause of 
atate, wlien perhaps mere is iin cause nppears 
to them. Itiaasif they sent him back to pii- 
aon. ihey knew Dot whcrcihre ; which cannnt 
be in a court of Justice, irtwre they are s\rorn 
M do justice. 

SecomiJy, As lo the Actsnf Farlianieai, tlie 
Judges gave no answer, but only commended 
tbrin; but the Attorney answered them vri'h 
one blow t.i strike them all ; that they are la 
be eoiisidered tir comnnn and ordinary cauaes, 
. thirt hapi>en in WeKmiosior-hall nnly But do 
but cousrdeT Mtfoa Cheita, which refleria 
u^n the king; ' Dec saper eum ibitous.' By 
til* law, if I brine "o Appeal of Murder against 
a noUeman, wb«li i* my suit, heshill not be 
tried by hi* peers; bilt if kr he indirted for 
that murder, whirh is the hing'i s«t, he shall; 
which shcwf, that that which is in Ua^na 
Cbarta is meant of tbe king, thoufh it In aut 
in Uw thiid psraw. 



— Ptwxedingi at Parliament Tttatatg to [90 

Third Olgectionnagaiasi the StaiDleofWeat- 
mioster I.e. 15. But the king's command is 
ihe conmaud of tile king by his justices; and 
also tlie word, ■ Repleiisabie,' navu signifies 
bailable ; bailable. La in a Coart of BeciiVd, by 
the king'sjusticei : but repleiisahle, is by tba 
(berjfT. Ilie sututa is to ibe sheriff, and it 
shews the particular causes, and concludes that 
rhe iheriff shall luw bii bailiwick.- Ihe sheriff' 
coald never tvplevy onef irmurder, or matters 
of the forest : but in the King'a-beuch far 
murder, or matter^ of tlie f'lresi, they niuy, 3. 
asais. 19, SI E. 4, 35. 9« H. 6, 4». Newhiii. If 
any man be taken by our command, or by tbe 
command of the king, if tbe theiiif take the 
party, be must come lo us, we will grant ft 
Supersedeas. 

FoiirtUy, They object BEainst the pncedcnla 
cited ; tbey are all oi' this kind, tbey were im- 
prisoned * per mandatum dmnini refis,' er 
' concilii,' without cause, or tbe cause is ei- 
prrs^d. When the cause ii expreseed, and is 
within the ciignizajice of the court, tbete they 
bailed them ; but when it is for felony or trea- 
son, it may be done beyond the seas, and then 
tlie court iias no connizance of tbem. Wheti 
no cause is set, yet bailment is alledged ; tben . 
ihey answer divers were so bailcfl, but tke 
cause appe.trs by Paper-Books ; hot 1 never 
■aw these Books to be Records, and Judges of 
Record made their Judgment in Records, and 
the cause only appears by Record. 

For the Resolution cited 34 Eliz. all iirec«- 
- dents wereread, acta of pailiHmentindeea were 
passed orcr, and yet that was not read. As 
ive have tlisc liberty here, so I dare say, no 
prinre in Chrislendoin doth assume tliis power 
to imprison any without any cause. I lind no 
sleps or mfi^ium of any sucli power.* 

ttalurduy, March 99, ies8. Mr. Soiiaivr 
spnke as fnUoweth : 

My care wben I tpakt last was lo gire satis- 

* " Die Veneris, Mar. S8. I rise to make 
a motion. Yesterday a learned Argument was 
made by Mr. Suiicilor, and II Edw. 1, was 
cited by hiro, which makes clearly fur llie Sub- 
ject, also for that talui popuii. 1 am sure that 
' hhertas populi est snlus populi.' And Festus 
himself ihatsent Paul to Agrippa was alawyer 
of tlie empire ; and to send a prisoner without 
si^ifying the crimes laid apunst bim, seined 
unreasonable to Feslus to do. By the law of 
tbe empire none were to hp committed abote 
thirty da^n, and tbegnoler is under a penalty lu 
certi]^ the cause of the prisoner's commitinent i 
andifthegaolerhealnck.heistohelined. When 
they speak here ul (lie Judgment given in the 
King's Bench, tl>ey say the Prpcrdeiita were 
mis-reciteil. Let a Sub-commiitee search into 
those Judgments and Preredents. 1 heard 
here a gumugar, nnd there is nothing but, B 
rmillitur. Tlie course of the offiocr is to 
enter fflouiipc, &c. aiid that i*iill ibey be da., 
lirered by kw, imd is all the Judgimeot tiuit 
can be " £i US3. Pyraaii. 8m SaUea's 
LiieinhisVVoflu. 

Goo;;lc 



61) 



STATE TRIALS. 5 Chajubs I. lS2B.—ihe SMierty qfiU Sutject. 



[81 



in that tbe judges diiJ not err JD (heir late 
uQon* ; but iftfaej did, it was cum patri- 
tu: tbejudgo knew notliiiig of the cause oi 
the (ectleoien'a impruantneot ; if the^ had 
known ihe caose of their impHsuDneiit m pri- 
TMc, tlxf would have appealed to bia majegtj 
fer bit grace. For to reiterate all Lhe autho- 
titin I iriil not, I hare lometiiiai; tg mv in the 
ooint, tu put iuto the scale, nhtSa miffA have 
laea thtn uid, had it not been fur the unhappy 
difl«ieace that might have been between t^ 
\ma count in WetcmiMter-liall, the KiugV 
bench and the Chaticery Court. 

In 13 Jac divera were committed /or di 
dwdicDce to the Decree of the Court of Clian- 
oaj, M namelj Rovwell and others, and iti 
nnived. That the Judge* cotild not deliver 
*ach, and at the lame time some were i 
■litled bj warraat from the king and the lords 
«([he council, and this came in queslioii, Midi. 
13 Jac andso oontitiUGd divera Ternu. There 
ns theo r«c«nrse bad to tho«e arfpimeots, and 
1 have ■ report here of that time ivhat the 
judges did Uiea, part whereof I will read. 

It wM reiolved bj Coke,* Crook, Duderidge 
ud Houston, that the retuTD was good, and 
that the cause need not to be ditclo^, being 
' per maadntam coacilii,' as ' arcana recni'. 
(iDd lhe report further saith, That in 34 Elii. 
it «u resolved accordinglj), and bj Coke it 
■Bi said, That if the privj-council commit one, 
he i* not baitable bj an^ court ofjuttice, and 
Stamford'* opinion is to, fbl. 79. &e what 
Dpjnios the Jui^e had of the resolution in 34 
£liz. and of Stamford, 

To this sir Eiuntrd Coke replied ■■ This r^ 
pott moves not me at all ; that report is not 

St 11 years old, but under ige, being in 13 
c In truth, when I read Stamford, I wai of 
Idi opinion at die first, but aitice, lookine into 
thaw Records (■eforC'mentlooed, I waa of ano- 
ibtf mrnd.f He brings in an ill lime 13 Jac. 
irinn there was daahiiig between the Court of 
Kuig^t~bench and Chancery, as nlio there were 
tben man; of the tnitors that were of the 
Piiitde[>Treason, committed ' per raandatam 
' concilii.' 

Upon idomitj, April 1, the Debate bsiog 

J -, Bjjbe,, Philips mavad. That 

) house was now read; for the 



* Coke was then a Jad(e, aud ia faroor at 

t " Coke of one mind, when a Judge, and 
ia &ToaT; of another, when out of court, and 
diacantented." (iJote to old Edition.) 

Of Coke's conduct in pariiimeot, Mr. Bar- 
nagton, in a Note to his Observaliona on Sta- 
tata Wettmioater th« Secood, sa;^ " The 
WepnblicatioD of ti» Journals of the House 
of Comnioas sbewa, that he did not, aa a Meai- 
hnofPariiament, prostitutf hia amaiing know- 
la^ of muiiicipal law, to political 



beieMnll; 
niMaHiie 



W ItMtitaio." 



Mithoritic*, which he ciW in 



question, thej tnight Jiear the resolution read 
of nil the Judges in 84 £liz. about this matter. 
Then 

Sir Edward Coke stood up and aaid, The 
glass of Time runs out, and something cast upon 
us hath returded us ; when 1 spake iigainst the 
Loans uud this matter, I expected blows, iind 
somewhat nni ipoten, tboiigh not to the mnilcr. 
ConcerniuE UiHt (tliat hath b«en objectedv I 
did nhen I wns a Judge, I will say sumewhal. 
Indeed, a motion mas made, but no argument 
or debate, or resolution upon advice ; I will 
never palliate with this house, there ii no Judge 
that hath an upright heart to Cod, and a clear 
heart to the world, but he hath 40me warrant 
for every thing that he doih. I confess when 
I read Stamford then, and had it ia my hands, 
I was of that opinion at the Coundl-TaUe; 
hut when i perceived that soime members of 
this lionse were taken away, even in the face 
of this houae, and sent lo prison, and when I 
was not fdr off Irom that place myself, I weiit 
to my book, and would not be quiet till I hful 
satisfied myself. Stamford at the first was my 

C' ^e, hut my guide had deceived me, tliere- 
I swerved from it: I have now better 
guide*, Acts of Parliament and oilier prece- 
dents, these are now my guides. I desire to 
be free from the impuiatiou that hath bceo 

Aa for the Copy of the intended Judgment, 
I fear, had it not been fot this parliament, it 
had been entered ere this time; n parliament 
brings Judges end all other men into grx>d or- 
der : if any clerk had drawn this draughi, hs 
would have done it by a prccedrni, and there 
can be no precedent found that warrants it, 
and therefore I believe that some other did it, 
— This draught of the. Judgment, should it be 
entered, «ilT sting ua to death, ' quia nulla 
'causa fuit osienta, ideo ne fuit boileabile;' 
and that it nppears (o be so by the Records. X 
persuade myaelf Mr, Attorney drew it ; I had 
a copy of my lord Anderson'* Report ofthA 
Judges Resolution, 34 Eliz. long ago ; but I 
durst not vouch it (and it was so in that copy) 
for that it waa Apocrypha, and did not answer 
bis gravity that made it, and yet it was citad 
in the Erne's Bench, • That aU the Judges of 
England ruled it so.' 

Then tbe House of Commons came to tltt 
fullowiag Hesalutions : 

Rejolved upon the question, nem. con. 
' I. That no Freeman ought to be detained 
or kept in prison, or olhenvise restrained br 
the command of the king or privy-council, or 
any other, unless some cause of tbe commit- 
ment, detainer or restraint be expressed, for 
which by law be ought to be committed, de- 
tained or restrained. 

' II. Tliat the Writ of Habeas Corpus may 
not be denied, knit ought to be g^nted to 
every man that is committed or detHined in 
prison, or otherwise restrained, tliougll it ba 
by tbe command of the king, the privy-cow^ 
c J, or any other, he praying tbe same. 



83] STATE TRIAI5, S Charles I. ie26--ProMduigt m Parltaniatl rtlaltag la [64 
gcnrral, thui the Laws of Ena;lHnd are ground- 
ed uD rcMon, more ancient than books, ccin- 
sifting much in unwriiicn custom;, jet w full 
of juitica mnd tma equity, that your most ho- 
nourable prcdecesMrs and inceitora manj 
times prapugned thtm with a nolvmu* tmtlari ; 
and so niicient, that fmm the Saxon days, not- 
withswiiding ihe injuriei qnd niins of lime, 
they liBve continued in most parts ttie same, as 
may appear in old rem uning monuments of the 
laws or EtKelbert, the fint Chuitisn kin^of 
Kent, Ina the king uf the West-Saxons, Ofia of 
the Mercians, and of Alfred tiie great monarch, 
who united the Saion Heptarchy, whose laws 
are yet to be seen, published, as some think, 
by parliament, as he says to that end, ' Ut ijui 
' sub uno riKe, sub una l<^e regerenlitr.' And 
though the Book of Litchfield, speakine of tbe 
troublesome times of the Danes, says thnt then 
' Jus sopitum erat in regno, leges et consueta- 
' dines Fopitx sunt,' and > prava voluntas, vis, 
' et violcotin magia regnabant qunm judicia vel 
' iuslitia ;' yet, by (he blessioe of God, a good 
kuig, Edward, commonly culled St. Edward, 
did awaken ihnse law* , and as the old words are, 
< Eicitntis reparavit, reparatas decnravii, de- 
' coraias confirmavit.' Which ' coutirmevit,* 
shews, that ^ood king Eduard did not give 
those laws, which William tbe Conqueror, and 
since that time, hafe swoni 



' III. That if a' Freeman be 

' detained in prison, or otherwise tesimined by 

* the command of the kinj;, the privy-cnuucil, 
' or any other, no cause of sucb commitment, 

* detainer, or reslriiipt being rxpressrd, for 
' which by law he oufiht to be commmed, de- 
■ lained, or teitrnineil, and the same be rctum- 
' ed upon an Huben^ Corpus, granted fur the 
' said party ; then hs ought to be delivered or 

And then taking intn enniid era linn the" Pro- 
perty of the Subject in his Goods, tbey came to 
this Aeiolution, to nliich ibete was not a aega- 

• That it is the aniient and indubitable Right 
' of every Fieemau, ihat he hnih a full ni^d ab- 
' solute property in his goods and estate ; that 

* noTax,Taillage, Loan, Benevolencc,oroilKr 
' like charge ought to be commanded, or levied 
' by the kine, or any of his minister!, without 

rat by act of partiament.' 



The Commotis having ahencd their care of 
the Subjects in the Liberty of their Persons, 
and Propriety in their Goods, did now prepare 
to transmit their Resolutions to the Lords for 
their concurrence ; and seveml members were 
appointed to manage a Conference with'lhc 
l!ord<i coiicernin); the same; and Monday, 
.April?, tlie Conrtrtnrc was held, and upeued 
by sir Dudley Di^s. 

A Confehence desired by the Lords, and had 

by a Committee uf both douses, concern- 
ing the Hi^hts and Privilegef of [be Svb- 

Sir Dudla/ Diggt, 

Mt Lords ; I sbiUI, Thnpe, Huspiciouily be- 
gin this Conference this day, with an observa- 
tion out of nn Holy Story, in the days of good 
king Josiah, 2 Chron. 3*, nben the Innd was 
purged of Idolatry, and the grerit men went 
about to repair the House of God ; while mo- 
ney was sought for, there was found a Bonk of 
the Law which bad been neglected, and after- 
wanls being presented to the good king, pro- 
cured the blessing, which your lordship may 
read in the Scriptur«. S Kings 83. 

My good lotds, I am confident your lord- 
ships will as cheerfully join with tbe commons, 
io acknowledgment of God's great blessing in 
our good king Josiah, Ut the knights, citizens, 
and burgesses of the house of commons, by me 
tbeir unworthiest servant, do thankfully re- 
member your most religious and truly hocioui^ 
ahie invitaiion of them to the late Petition, for 
deaosing this land from Popbh Abominations ; 
which 1 may truly call a necessary and a hnppy 
repairing of tlie Ilouse of God. And, to go on 
with tbe parallel, whilst we Che commons, out 
of our good affectioiis, were seeking for nioney, 
we found, I cannot say a Book of the Law, but 
many, and those fundamental points thereof 
neglected and broken, which hath occasioned 
Mir desire of this Conference : wherein J am 
int conunuided to *bew to your lordibips in 



And here, my lords, by many coses frequent 
in our modern laws, strongly concurring wiih 
iliosii of the andeut Saxon kings, I might, if 
time were not precious, demonstrate that our 
Laws and Customs were tlie sAmc. 

I will only intreac your lordships leave to tell 
you, that as we have now, even m those Saioa 
times they had their Courts-Baron nnd Conrts- 
Leet, ami SheritF-Courts, by which, a* Tncitu* 
Siiys of the Germans their ancestors, 'Jur& 
' reddehant per pagos et vices;' and, I do be- 
lieve, as we have now, they bad tbeir porlitt- 
ments, where new laws were made * cum con- 
' sensu pnelacoium, magnatum et totius coiu- 
' mnnitalis ;' or, as another writes, ' cum coD- 
' silio prelatorum, nobilium, et sapiemium lai- 
' corum.' 1 will add nothing out of Glanvile 
thai wrote in the time of H. 9, or Bracton that 
wrote in tbe days of H. 3, only give me leave 
to cite that of (^orte^cue, the learned Chancel- 
lor to H. 0, who writing of this kingdom, aayi, 
' RegDum illud in omnibus natioiium, et reeum 
' temporibus, eiidem quibus nunc r^itur le^ 
' bus et consuetudinibus, regebatur.' But, my 
good lords, as the poet said of Faroe, I may mj 
of our Common-Law ; 

' Ingreditnrque solo caput inter nubjla condit.' 
Wherefore tlie cloudy part being mine, I will 
make baste to open nay for your lordships to 
bear more certain Arguments, and SQcb as go 
on more sure grounds. 

Be pleased then to know, that it is an no- 
doubted and fundamental point of this so an- 
cient Common-Law of England, that the Sub- 
ject bath • Inw pnrperty in hit Goodtaml 



6S] 



STATE TRIALS. 3 Chjirlu I. iG-IB—lfie Liberty ^iheStitJtcl. 



(86 



Fosseanona, nhich doth preserve, as sacred, 
ilut ai€tim ft tutuK, itiHt a tlie imr^of iudus- 
irjr, and mother i)l'ci>urBge,and without which, 
there can be no justice, uf which raeum et tuum 
a the proper ubject. But the undnubted 
birthnght of Tree Subjects, huth lately not a 
little baea iorailedaDd prejudiced by pressures, 
the more guevooa, UNmuse they biive been 
punucd by impriMnmeat, contrary to the fran- 
chises of this laud ; uud when, according to 
ihe lans and slHluirs of this reiilu,redress huth 
beeii saughi for in a I^;b1 way, by dernxoding 
Uabeu Curput frum the Judges, and a dis- 
charge or trial according to the Inw nf the land, 
success bath fuiled ; thai now enfarceth the 
Ckioimous, in this present parliament asiemhied, 
to eiuiuioe Ly acts of parliament, precedents 
•nd reasons, the truth of the En^isli Subjects 
liberty, which I shall leave to learned gentie- 
tuen, whose weighty Arguiueuu, I hope, will 
leave no place ia your lords hjps memories. Tor 
the errors and iiiGrmities oi your humblest 
seivaot, thai doth thankfully nckuowledge the 
great furour of your honourable and patient 
atleotioD. 

Me. LlTTLtTON's Akguheht. 

Made by (he command of the House of Com- 

Mous out of Acts of Parliament, snd nutho- 

rilies of taw, expounding the same, at the 

fir^ Cunl'crence with the Lords, concerning 

theLibertyofthePeisonofeverj Freeman.* 

My lords; .Upon the occa&ions delivered by 

the gentlenun that la>t spoke, your lordships 

hare heard the Commons have taken into their 

serious con tide rati on the matler of Personal 

Liberty, and after long debate thereof i 



nnsaiistied, tliey have opon.a full search, nod 
clear undersbinding of^ all things pertinent 
to the qnestion, ananiiuously declared : Tlint 
no Freeman ought to be comiuitted or detained 
iu prison by the command of the King or Privy- 
Council, or any other, unless some cause of 
■be commitment, detainer, or reslnuut be ex- 
prcKed, for which by law he ought to be com- 
mitted, detaiDed,or restrained. And they have 
tent lue, tvilh other of their members, to repre- 
seNC unto your lordsliips the true gniunds of 
such ih^ llesulutiun, and have charged me 
patticul*rly, leaving the reasons of law and pre- 
cedents for others, to give your lordships iui»- 
foclion, that (his Liberty is established and con- 
finned by the whole state, (be king, the lords 
ipiriiual and temporal, and cummons, by se- 
tenil acts of p.'irliiioictit; the authority whereof 
is so great, th»t it can receiie no ansnei', ~ 



• This Arcuinerit of Mr. Littleton is prinCcH 
in ' Cotton i Posthiiraa;' ns if made by sir Ro- 
bert Cotton, hart. But whosoever consults the 
Historians of those times, will find, that Diggs, 
Littleton, Selden and Coke, nere the four 
lawyers appointed by the House of Cc 
tg manage Uiat memorable Conference. 



by interpretation or repcnl by future s( 
And tliote tliat I shall mind .vour lordships of, 
are bo diretl in poi>it, (hiit iliey can bear no 
other exposition ul ull, and mre I am they are 
stUHn force. 

The lirst of them is tliu Grand Charter of tlie 
Lib(:ities of £ngl)iiul, fir-t nrnnied in the ITtli 
of king John, and renewi'd in the 9 Hen. S, and 
since cunRnned in parliiuuenl ah:<ve 30 titnes. 
The words are these, ch. HO. < Nulliis hber 
' homo capiatur, vel iiuprisunctur, aut disseise* 
' tor de libero tenerneiito suo, lel lihertatibus, 
' vel liheris consueludinihus suis, uut utlagcre- 
' tur, aut exuletur, nut aliquo modo de:>iruutar, 
' tiec super eum ihiinus. ncc super eum mi:tE- 
' mua, nisi per legale judicium pnriuia suoruin 
' vel pcrlcrifm teriEe. 

These words, ' iiollus liber homo,' ic, nre 
express euough, yet it is remarkable that Mnt- 
tl«w Paris, an uuthnr of special credit, doth 
observe, fol, 432, that the Charter of 9 H. R, 
«iis the very samens thntof IT John, ' in nulla 



milis- I 



• his w 



■rds; I 



id that of kin, 






■ily 'Nee 

' cnrceruni mittemus;' and such a corruptiou 
as ii now in print, might easily happen betwixt 
9 Ii. 3, nnd sa E. 1, when this Charter was 
first exemplified, hut certainly (here is suffici- 
ent left in that which ia extant to decide this 
question. For the words are, ' That no Free- 
' man shall be taken or imprisoned, but by tlie 
' lawful Judgment of his peers;' which is bv a 
jury of perrs, ordinary jurors, or others, who 
nre their peefs,,or by the law of the land ! 
which words, * Law of the lauil,' must of 
necessity be understood in (bis nation, to h» 
by due process of the lair, and n'lt the law 
of llie liuiil generally, or otherwise it would 
comprehend bond-men (Hhom we call Vil- 
leins) who are e\cludcd by llie word ' Liber;' 
for the general lavr of the land doth allow (heir 
lords to imprison them at their pleasure without 
cause, wherein they only diAar from Uie free- 
men in respect of their persons, who cannot lia 
iuiprisoned Mithout a cause. And that this is 
the true understanding of these worils, 'Per 
legem cerne,' will more plainly appear by di- 
vers other statutes that V shall u>e, which do 
expound the law accordingly. And (hough the 
words of this Grand Chorter be spoken in the 
third pcisoti, yet they are not to be understood 
of suits bctnixt party and party, nt least not of 
them alone, but even of the king's suits against 
his subject), as will appear by the occasion nf 
gt-dingof tlint Chartef', whidi was by reason of 
the diOiTe-.ees betwixt those kings and their 
people, and tlierefore properly to be applied 
unto their power over them, and not to ordi- 
nary questions betwixt sulject and subject. 

.^coiidly. The word ' yer legale judicium 
'pariuDi suorum,' immediately prectding ibc 
other of ' per legem zvnic,' are meant of Triab 
at the king's suit, and not at the prosecuiiou nf 
Bsul>jFC^ And tlierefore, if a pettofthc realm 
be airuigi^ed, at the suit of the king, upon an 
Indictment' of murder, he shall be trietlby lib 



W] SFATE TRIALS, 3 CBiLthtsl. iOSS.'-Procttdmgi in ParlkmaUrdMtmg to (M 

pern, that is nolilet; but if he be appc^aled of 
murder bj s nibject, his triol shnll bi bj in 
onJinnry Jurj of ik fieeliolder», uapjicBreth 
in 10 E. 4, 6, 33 H. 8, Bmoke Title Trials 143. 
Stan. Cor. li. 3, ca. 1, !o\. 159. nnd in 10 E. 4, 
6, it ig aaid, such is tbe meaning ofMaj^iia 
CharIB, for tlie same reason: tbereforeas' per 
'judicium pnrium SDonim' extends to tbe king's 
wiit, BO shall these words ' per leeem lerrs.' 

And in 8 E. S, rot. pari. n. 7, there is a Peti- 
tion that a Writ under the privy-seal vent to 
Uie cuariiions of the i^reat seals, to cau^e lauds 
ID be seized' into the king's binds, b; force of 
which there «ent a writ out of the Chancery to 
the Escheator, to sciie, agsinat the furm of the 
Granil Charter, that the king nor his tntuisters 
shall out no man ofbis freehold without reason- 
able judgment, and the party vna restored to 
bishuid; wliich shewed tbe statute did c>;tend 
to the king. 

I'iiere was no inTosion upon this personal 
liberty, tOl tbe time uf Edw. S, which vras soon 
(esented by the snbject; fur in 5 E. 3, c. 9, it 
, is ordained in these words : ' It is enacted tliat 
'no iQao frum hencelbrth shall he attached by 

* any accusation, nor fore-judged of life or limb, 
' nor liis lands, tenements, aoods, nor chattels, 
' seized into the king's hnnds, against the form 

* of the Great Charter, and the law of the lonrt,' 
9S C 3, c. 4, it is more full, and doth expound 
the words of the Grand Charter, and is thus : 
' Whereas it is contained in the Grand Charter 
' of the franchises of England, that no freeman 
' shall beiDipnsDned,nor()utout of his freeboid, 

* nor free custom, unless it be by the law of the 
''laud; it is awarded, assented, and established, 
' that from hence none shall be taken by pe- 
' tiiion or suggestion, made loour lord (be king, 
' or to his cnuncil, unless it be by Indictment, 
' or preseuttuent uf his good and lawful people 
' of the same neighbourhood ; which such deeds 
' shall he done in due raaaner, or by process 

■ madb by writ original at the common law, nor 
< that nonebeouted of his franchises, nor of his 

* freehold, unless he be duly brought in to an- 
' swer, and fore-judited ofihe same by the course 
' of the law; and if any thing be done against 

■ the same, it shall be redressnl and hulden for 

* nought ' 

Out of this Statute I obserre, that what in 
Magna Cbnrta, and the preamble of the Statute 
ii termed' by thelawof^thelimd,'isin the body 
of the Act expounded lo be by process made 
by the writ original at the common law, which 
is R plain interpretation of the words ' law of 

* th« land ' in the Grand Chnrier. And I note 
that iliis law was made upon the ctimniltmcnt 
ofdiversco tbe Tower, no kuan yet kuoweth fur 

38 E. 3, c. 3, it is more direct, this liberty 
being followed with fresh gult hy the subject, 
where the words are not many, but very full and 
significant; ' That no man, of what stale or con- 
' ditinn soever he be, shall be put out of hit 
' lundt or lenemenls, itor taken, nor impiisoned, 

* nor disinherited, nor put to death, without he 
'bebt-oughtiiitoaiuwerl)} due process of law.' 



rendered by due process 
of the law. 

se £. 3, Rot. Pari. n. 9. Amonpt tbe pe- 

XJtions of tbe commons, one of them being tran- 
slated into English outof French, is ibus; firat, 
that the Great Charter, and the Charter of the 
Forest, and other Statutes made in liistime, and 
the time ot' his progenitors, for tlw profit of bim, 
and his commonalty, be well and Grmly kept; 
and put in due execution, without putting di^ 
turbance, or making arrest contrary to them bj 
special command, or in other manner. 

I'be ansn er to the Petition, w hich makes it an 
act of parliament, is, ' Our lord the king, by the - 
' assent of the prelates, dukes, earls, barons, and 
' tbe comrooualty, hatli ordained and establish* 

■ ed, that the said Charters and Sracaies be helrf, 
._.!_ J, according to the said 
observable, that the Statute* 

were to be put in execution according to tb« 
said Pttiiioii, which is, that no arrest sliould be 
made contrary to tbe Statutes, by special com- 
mand. This concludes the question, and is of 
01 great furce as if it were printed, for tbe Par- 
liament iloll is tbe true warrant of an act, and 
many are omitted out of tbe Books, that are 
extant in the Itoll. 

36 E. 3, Hot. Purl. n. 23, eiplaineth it fu^ 
iher; for there the Petition is, ' Whereas it is 
< contained in the Grand Charter and olber 
*■ Statutes, that no man be taken ur imprisoned 
' by special command without Indictment, or 
' other due process to be made by the law, and 
'oftentimes it hath been, and yet is, many are 
' hindered, taken and imprisoned without In- 
' dictnient, ur other process made by the law 
' upon them, as well of things done out of the 
' Fomc of the king, as for other ibings ; that it 
' Mould iheretbre please our said lord to com- 
* mand those to he delivered, wtiich are so taken 

■ by special command against the form of tb« 
' Charter and Statntes as aforesaid.' 

TIlc Answer is, ' The king is pleased, that if 
' any man find himsetf gricTed, that he come 
' and mnke his complaint, and right shall be 
' done unto hitn.' 3T E. 3, c. 18, agreeth in 
substance with them : it said), * 'Though it b* 
' contained in the Great Charter, that nO man 
' be taken nor imprisoned, nor put out of his 
' freehuld without proi^ess of the law; aere^e- 
' less divers people mnke false suggestio.is to the 
' king Itimwif, as n eti ibr malice as otbcrwiae, 
' whereat the king is often grieved, and divers 
' of tbe rfalm put in damage, against the fbn« 
' ofihessmeCharter; wherefore it is ordained, 
' tliatoll they which makesuchsuggestians,shaU 
' be sent with the same suggestions, to tbe 
' Chancellor, Treasurer, nnd his grand council, 
' and tliat they there find surety to pursue their 
' suggestions, and incur the same pain that the 
' other should have bad, if he were attainted, in 
' case that the suggestion be found evil ; and 
' that then process of law be marie against 
' tliemtvitboutbeing taken or imprisoned,a| ' ' 



69] STATE TRIAI£, S CuASLif I. 1038.— <k LAerty t^tftt Subject. 

duter n cxplaiaed lo be withou {iroceia of 



[90 



11 E. 3, c 13. At the r«quMt of the Com- 
Bou bj their felition pat forth in xhw paMia- 
mcnt, to «cbe« miichief and damage done to 
direraof his comrDOns by fntie nccusers, njiicb 
sHratimes have made tlieir accusations, more 
for rcrenjie and singiitnr benelir, than for the 
profit of the king, or of his peuple; of which se- 
cnstd ppnons some have been tnlLcn and caused 
to come before ihe king's council b; writ, and 
«be™ije upon (-rievous pains ngainst the law ; 
it is ascnicd nad accorded for the good goTem- 
tDce of the commons, That no man be put to 
iBswer witbout presentment befiire juaticei or 
matter of record, or by due process and writ 
i>r^ii, according to the old law of the land : 
Bad if any thing from hence be done to (he con- 
tMrj, it shall t^ void in the law, and bolden for 

But this is better in ihc Parliament Roll, 
«ieie the Petition and' Answer, which m* Lei 
ilie Acr, are set donm at large, 43 E. 3, Rot. 
Pdri. n. 13. 

TAt Fetitioa. 
'Item. Because that many of your com- 
'imnsare hurt and destroyed l>y false accu- 
'Kn, who Dikke their accusatiims more for 
' their revenge and particular gain, than for the 
'profit of iho king, or of his people : aod those 
' dm are accused by theio, some aro tateo, 
' and others are made to come before the 
' ling's coancil by writ, or other commaad- 

* ment of ttie king, upon grievous pains, con- 
' Inry to tlie Inw : That it would please oar 
' lord the king, and bis good council, tbr the 
'juK gnYenunenl of his people, to ordaJn, that 

■'if hereoiier any accuser propose any matter 
' for the profit olthe king, that the same matter 
' be tent to the justices of tbe one bench or of 
' the other, or tbe Assizes, to be enquired and 
'detenninad accordiog to the laiv; and if it 
' caaceni the accuser or party, that be lake his 
' salt at the Common Law; and tliaC no man 
' be put to answer without presentnient before 
' the justices or matter of leoord, and by dke 
' prosen and on^oal writ, according to the 
'ajicient law of the land. And if any (bing 
' henceforward be done to tbe contrary, that it 

* be mid in law, and beM for error.' 

Here by due prooesa and original writ, aC' 
tording to tbe ancient law of tbe land, is meant 
tin same thing, as ' per legeia term,' in Magna 
CbsTta; and the abuse waa, they were put to 
■acver by the commandment uf the klag. 
Tilt King't Atuaer a thm : 

' Because that this Article is on Article of 

* ibe Grand Charter, the king willeth that this 
' be done, as the Petition dolh demaud.' By 
•Ws appeareth that ' per Itgpm terr*,' in 
Magna Cbarta, ii meant by due process of the 
kw. 

Tbos your- lordships hHTehtnrd Acts of Pm-' 
^•ment in the point. But the Statute of We*t- 
nitistei, 1. c. lb, is utjred to dlspniTe this opi- 
nion, where it it eipresdy said, TlMt a man ii 



not repleriable, who is i^immitted by the com- 
mand of the king ; therefore tbe eommand of 
the king, without any cause sbeived, is suflicieiK 
to commit a man to prison. And because the 
streogth of the-Arguiaetit may appear, and the 
Answer be better UHderstood, 1 will read the 
words of the Statute, which are thus: 
V ' And forasmuch as sheriSsnud others, wbicli 
' have tnken and kept in prison persons detect- 
' ed forlelouy, and otientimcs have let out by 
' replevin such as were not replevinble, and 
' have kept in prison such as were repleviable, 
' becanse ihey would gain 'of the one party, 
' and grieve the other ;< and 'forasmuch as be- 
' fore this time it was not certainly determined 
' what persons were repleviable, and what not, 
' but only those that were taken for tbe death of 
' a mitn, or by tbe cammindment of the king, 
' or cf his justices, or for the forebt ; it is pro- 

■ vided, and by ^e king commanded, that such 
' prisoners ai were bafore outlawed, end they 

■ which have abjured the realm, provera, ana 
' such as he taken vvi^ the maimer, and thoBc 
' which have broken ihe king's prison, thieves 

■ openly defamed and known, end such as be 
'appealed by approvers; bo long as the np- 
' provers are living, and if they be not of good 
' name, and such as bs taken for burning of 
' houses frkmioosly done, or ftlse money, ot 
' for connterfdting the king's seal, or persons 
' exeommnnictile taken at the request of the 
' bishop, or formauifestofiences, orfor treason 
' touchiDg the kine himself, shall be in no wise 
' repleriable by the common writ, or wtthout 

But sui^h OS be indicted of larceny by i^ 
quests taken before sheriffs or beiliSii by ibejr 
ofKce, or of light suspicion, or of petty larceny, 
that anoanteth not ahoTe the value of nrelve- 

Gnce, if they were not guilty of some otiier 
neDy aforetrme, or guilty of receipt of fe- 
lons, or of commandment, or of force, or of 
aid of felony done, or guilty of some other 
trespass, for which one ought not to lose either 
life or member ; and a man appealed by an an- 

t rover, after the death of the approver ; if he 
e no common thief or defemed, shall from 
henceforth be let out by sufficient surety, wher- 
of die sheriff will be answerable, and that witl»- 
out giving aitglit of their goods. And if the 
sheriff, or any other, let any go at large, by 
surety, ihatare not repleriable, if he be sheriff 
or constable, nr any other bailiff, or audi as 
hath a fee, which hath keepine of prisons, and 
thereof be attainted, he shall lose his office and 
fee for erer. And if tbe undei^sheri^ con- 
stable or bailiff, or such as hath, fee for kceptiw 
of prisons, do it contrary to the will of his ford, 
or any other bailiff being not of fee, tbey ati^i 
have three years impriaomcnt, and make m fine 
at the kings pleasare; and if any man widt- 
hold prisoner! repleviable, ^er that they have 
ofieted sufficient snre^, he shall pay a grievoas 
amercement to the king; and if be take wny 
reward fortbe deliverance of such, he shall pay 
double to the prisoner, and also ifaall pay a 
gnevoui Rnsrcemnt to the- king. 



gij STATE TRIALS, SChakluI. tan-i.—Jh-oatdinp in ParliamaU rdaiittg 
The AniMr. Sheriff 



[« 



It miiat he ack now lodged, that n man taken 
b^ itie com^iHQdinent of the king ii not repl< 
viable, for lo are the exyieo words of this Sii 
tutei but this niakcth aotliing sgniiwC [he De- 
daration of the Uoute of ComnioDs ; fur thev 
Mj not, iIk ■beritr may replevy such a one by 
■uretics, tcilUtt mtmuaiplora, but that he is 
. bailable by the kiufi's court ol justice t for tlie 
better apprehend in v \vhereiif, it is to be known, 
that there is a dillcrcnce between repleviable, 
wliich 15 always by the ibei-iff upon pledges or 
sureties. given, aud bailable, which is by a court 
of record, where the prisoner is delivered to 
his bail, and ibey are his jnolers, and may im- 
prison him, aod shall suffer fur him body for 
■ body, as appcareth 33 & 36 Edw. 3, tilob 
Malnprize 12 & 13, where the difference lie- 
twixt B;iil and Mainprise is expressly taken. 
And if the words of ihtj Statute themselves be 
obserred, it will appear (ihiinly, that it eitends 
to the Sheriff aud other inferior officera, aud 
doth not bind tlie linnds of the ju(%is. 

He Preamble, which is tbe key that openeth 
the entrance tutu the ineaning of ibe malierti 
of ifie Lavr, is, ' Ikirasmuch ns Sberifis and 
' others have taken and kept la prison persons 
' delected of felony,' Out of these words I ob- 
serve, that it nomitwteih Sheriffs, and than if 
the Judges should be included, they must be 
cumprefieudod under that general word, 'others;' 
ithich doth nol-rintend to tbuseofan higher 
iBok, buitoinferiors.forihe best by ail courses 
isliiBt to be named. And therefore if a man 
biiti; a Writ of Customs and SerFiccs, and 
name Rents and other things, the general «h:ill 
not include HomaMC, which is a personal scr- 
tice, and of an liiglier nature, but it sball 
extend to ordinary annual service, 31 K. 1, 
droll 6r. So the Statute of 13 Elra. c. 10, 
which bceinneth with Colleges, De.ins and 
Cliapters, Parsons, Vicars, and concltides with 
these words, ■ and others having spiritual Pro- 
* motions,' shall not comprehend Bishops that 
are of an higher de(rree, as appeareth in the 
■rchhishop of Canterbury's Cnse, reported bj 
sir Edw. Coke, hb. S, foi. 4fl, B. 

And thus much is ejiplaiiied in tba very 
Statute towartls tlie end, when it dofh enu- 
merate tho^ who «ero meant by the word, 
' others,' namely, Under-SUeriffs, Constables, 
fiailiSs, &c. 

'A^n, tlie words are, 'SherilK and others 
' which have taken and kepi in prison.' Now 
evetY man knuwcth. Judges do ncitlier arrtst, 
nor keep men in prison ; that is the office of 
Slierift and other iTifcrior ministers. There- 
fore this Statute meant such only, and not 
Judges. 

The words are further, That they let out by 
replevin such ns ure not replevlable, that is the 
proper language fnr n SherilT; nay, mure ex- 
press afterward in the body of ihe Statute, that 
kuch ns are there mentioned, shiiU-in nonise 
be repleiiable ^J the common Writ, wliich is 
.' De homine rvple"iniido,' and is directed tn 
tbe Sheriff, nor witbout writ, which is by the 



X Meio. But that which receives no - 
s this, that the command of the Jus- 
tices, who derive ilieir auihoritj from the 
crown, is there equal as to this purpose with 
ihe command of the king. And tlierefore by 
all reasonable construction, it must needs re- 
late to odicers ttiat are subordinate to both, as 
sberitfe, under-sheriffs, bailiffs, constables, and 
thelike. And it iverea h a r&h exposition to say, 
that the Justices miilit not dischari^e their owd 
command, and yet ihat reason would concludi! 
as much; and that this was meantoftlieslieriff 
and other ministers of Justice, appears hy tlie 
Recital, 37 Edw. 1, c. 3, anri likewise by Fleta, 
a Manuscript, so i;illed, because the autliur 
lay in the Fleet when he made the BooL ; for 
he, I. 9, c. 59, in his Chapter of Toms, and 
the Views of the tluudred Courts in tbe Coun- 
try, setteth down tlie Articles of the Chaises 
that are there to be inquired of; amongst 
nhich, one of them is ' De reptegiabilibus m- 
' juste detentis et irreplegiabilibus diinissle;' 
which cannot be meant of not bailuig by the 
Justices; for what have the iufeiior courts in 
the coiiutry to do with the acts ofihe Juslicesf 
And to make that more plain, he settelb 
down in thatChapCer, that concerneih Sheriffs 
only, the very statute of Westminster 1, which 
he translates verbatim oat of tbe French Into 
the Latin ; save that he renders taken by (be 
command of the Justices, thus, * per judicium 
' Justicinrioruio;' and his Preface to the Sta> 
tu;e pla'uily sheweth, that he understood It of 
Replevin hy Sheriffs ; for lie saith, < Qui deheut 
' per plcf;ios dimitti, qui nan declamt hoc Sta- 
' tutum ;' and ' per plt-nios' is befure the Sheriff. 
But fi>r direct Authority, It is tbe opinioo of 
Newton, chief justice, 33 Hen. 6, 46, where 
his words are these : ' It cannot be intended 
' that the Sheriff did suffer him to go at large 
' by MalnDriie ; fur wlicre one is taken by tho 
' writ of the kine, or the commandment of the 
' king, he is irrepleviable ; but in such case his 
' Iriends may coma to the Justices from hun if 
' be he arrested, and purchase a Supersedeas.' 
This Judge concludes, thiit the sberilf cannot 
deliver him that is taken by the command of 
the king, for that he is irrepleviable, which is 
the very word of the statute : but, soJth he, his 
friends may come to tlie Justices, and purchase 
D Supentdtat. So he declares the very ques- 
tion, that the Sheriff had no power, but riie 
Justices had power to deliver him that is corn- ~ 
mitted by the king's command, and both ibe 
antinnt and modern practice manifest as much : 
for he that is taken for the death of a man, or 
or the Forest, is uut repleviable by the sherllT, 
r'ei they aie ordinarily haded by the Jusiicei, 
tiid were hy the king's writs directed tj tbe 
>heril& in the times of Edw. 1 nnd i, as appears 
n the close RuUs, which could not be dune if 
they were not bailable. And it is every day'a 
experience, that the Jusliccs of tlie Xiil<;s- 
beoch do hall tor murder, nnd for olfencts duns 
in the Forest which they could not do, it' the 
nord * irrc[ilc viable,' in Wesiminster 1, wer« 
meant of the Justices, as nell usuf the ShtciOii. 



93] 



STATE TRIALS, SCiiAtusI. ]62S^iieLiber^<iftheSuh;ai 



[94. 



For Aatboritid that tiave been offered to 
pniTe the coDtrHiy, thpv are in number chrea. 
The 6ratu 21 fidw. 3, Rot. 9, ntiich also is iu 
the Book of Picas in Pnrliament at the Tower, 
npon an action tliere liruught, (bl. 44. It ia 
Dot on act of parliitment, but a resolution in 
pariiameot upon sn acnoii there brought, which 
wai usual in those limes : and the case is, that 
Strphen Ribez, the sheriff of the couDlies of 
Leiccuer and \Va™ick, was questioned, for 
that he had let at large by suretj, nmansst 
others, one William, tlie sun of Wnller le Pe- 
soDs, ^laintt the will and command of the 
ling, wnereas the king had commanded him bj 
letten under the privy-seal, that he should do 
DO favour to any man that van committed by 
tbeearlof Warwick, as that man was; where- 
nnto the aherifF answered, that he did it at the 
request of some of the king's household opon 
their letters; and because the sheriff did ac- 
bncnrledge the receipt of the kind's leltcn, 
tbereupou he was committed to prison accord- 
incto the form of the statute. 

To thia I answer, the sheriff was jnstlj 
punished, for that he is expressly bounil hj the 
ktatote of Westminster 1,' which was agreed 
from the beginning ; but this is nf>prtiof, that 
ibe Judges tiad no power to bail thii mnn. 

The next Autbonty is 33 Hen. 6, in the Court 
nf Common Pleas, tbi. 98, b. S9, where Robert 
Pojuings, esq. was brought to. tl>e bar upon a 
Capias, and was retnnicd, that he was cotn- 
mitted ' per duos de concilio,' (I believe it is 
- nispriated for' dnos de cinciliOt'i. e. 'dnminoa 
* de c^ncilio,' which is strongest against what I 
TDainiHin) ' pro diver«is cnuais regem tangentib.' 
Ami be made an attorney there in an action, 
whence it is inferred, that the return was good, 
and the party could not be delivered. 

To this ihe answer is plain : 1. No opinion 
ii delivered in that book, one way or other. 



S. It appears eiprcasly, that be was brought 
thither to be charged in an action of debt, at 
another mBn'a.juit, no deiire of hia own to be 
deKvered, or bailed ; and then if be were re- 
manded, it is no way material to the question 
in band. But that which is most relied upon, 
is the (pinion of Stamf. in his Book of Pleal 
of the Crown, lib. i, c. 18, f. 73, 73, in his 
Chapter of Mainpriie, where he reciieth the 
Statute -of Westm. 1, c 15, and then saith 
thus: ' By this Stalate it appears, that in four 

* cases at the Common Law a man wm not re- 
'pleviable; to-wit, those that were taken for 

' ' the death of a man, by the comniaml of the 
' king, or bis justices, or for the forest ;' thus 
far he is mou right. Then he goeth un, and 
tahb, ' As to the command of the king, that is 
' andentoodby the command of his own mniith, 
■or his council, which it incorporated unto 

* luin, and spake with his month, or otherwise 
' eve™ Writ or Capias to take a man, which is 
' tbeking'scommand, woatd be as much; and 
' as to the command of the Justices, that is 
' tnaant Umi mUolal* cOHHBamlnent, br if it 



' be b^ rfieirordinary commandment, be is re- 
' [ileviable by the siieritf, if it be not in some 
' of the cases prohibiltd by the statute.' 

The answer that I gave unto this ia, that 
Stamford had said nothing whether n man may 
he committed witliout cause hy the king's com- 
mand, or whether the Judges ought not to bail 
him in such case, only that such a one is not 
repleviable; which is agreed, for that belong* 
tu the SheriS. And because no man shouhi 
think he meant any such tliine, be concludes 
the whole sentence touching the command of 
the King and the Justices, ihnt one committed 
by the orditiary command nf the justice, is re- 
pleffiable by the sheriff; or at least it nppean 
not that he meant that a man committed bj 
the king, or by the ^rivy-council without cause, 
should not bo bailable by the justices, and he 
liath given no opinion m thia cise; what be 
would have said, if he had been asked the ques- 
tion, cannot be knann, Neither doth it appear, 
that, by any ihin^ tbat he hath said, he meant 
any auch thing as would be inferred out of him. 
And now, my lords, I have performed the com- 
mands nf the Commons, and as I conceive shall 
cle^u' tJie declaration of persona] Liberty, an 
ancient and undoubted truth, fortified with 
•even acts of parliament, nnd not opposed by 
any statute or authority of law whatsoever. — 
See Littleton's Precedents after Mr. Selden's. 

Ur. Seldek's AacuMCNT. 
My lords; Your lordships have lieard from 
the geutleman tbat last spake, a great part of 
the grounds upon which tiie House of Com- 
mons, upon ntature deliberation, proceeded to 
that clear Hesolution touchiug the llight of the 
liberty of their Persons. The many acts of 

Iiarlinments, which arc the written laws of the 
and, and are expressly in tlie point, have been 
read and opened, and such objections as have 
been by fomc made to them, and some objec- 
tions also made out of another act of parlia- 
ment, have been cleared nnd answered. It 
may seem now perhaps, my lords, that little 
remains needful to he further added, for the ia> 
farcement and maintenance of so fundamental 
and established a Kiglit and Liberty belonging 
to every freeman of the kin):dom. But in the 
examination of questions of Law of Risbt, 
besides the laws or acts of piirlianient, Uiat 
ouelit chiefly to direct and reguiute every man's 
judiiment, whatsoever hath been put in practica 
to the contrary, there are comiuoaiy used also 
former Judgments, or Precedents, and indeed 
have been BO used sometimes, that (he viieight 
:ason, of law, and of acts of parliament, 
hath been laid bv, and resolutions have been 
made, and that in this very point, only ujion 
the interpretation and apprehension of prece- 
dents. I?recedents, my lords, are good media, 
or proofs of illustration orcaiiSrmatian, where 
they agree with the express law: but they can 
T be proof enough to overthrow any one 
, much less seven several actsof parliament, 
as the number of them is for the point. The - 
House of Commoos tbetefore taking into co»- 



•Mention, tlMit in thi* quntioa, bctnf of to 
liigh a nature, that never anj exceeded it in 
mn J court of juwiea wluttoerer, all the leveiml 
wKjs tt( jutt caamiaatioii of the truth sboQld 
be Died, have klM most carefully udbnned 
themselTei of all former JudgoHmts and Prece- 
doots coocenaing thi^ great point either waj, 
and bftia been no less careful of the due pri- 



95] STATETRIAUS. 3Crau»I. 1028 Pr»xi£i^mParliMmUretaii«gii> [H 

thiif in tke laws of tbii land, a* a petiiion of 
r^t to be uied in such cbmi fbr libertj of.thc 
uenon, nur is ibere aiij legal caonie for ^n- 
largonent to be token m luch casei i howw- 
•*er the cantrarj' liath upon no ground or 
colour of lav heea pretended. Now, my'lonli, 
if an; man be so imprisoned bjr nnj wen com' 
maud, or oiberwise, in nnj prison wbatuevec 
throngb England, and desire by iiimself, or anjr - 
other in hit behalf, this writ of UntieasUocpul 
for ibe purpose in ibe court uf king's-bench, 
the writ i» to be granted to him, and ought aot 
10 be denied him, rvo otherwise than anotJiei 
ordinnrj original writ iu the cliaocerf, or other 
common process of law, maj be denied ; which 
amongst other ihiivgt'the bouu resolved tbo, 
upon mature deliberation, and I was com- 
manded to let jour lordships know so much. 
This writ is directed to the keeper of the pri- 
snn, in whose custody the prisoner remaus, 
commanding liini chat after a certain day, ke 
bring in the body of tbe prisonei^ ' ad sub- 
'jiciend. et recipiend. julta quod curia caa> 
' siileniveiit, &c una cum causa captioDis et 
' detentionis ;' and ofienliines ■ una cum causa 
' detentionis' only, ' captionis* being oroiited. 
The beeper of the prison thereupon retunu 
by what warrant be demins tlie prisoner, and 
with hia return filed to hli writ, brings the pri- 
•onet lo the bar at the lime appointed; wbea 
the return is thus made, tbe court judgcth of. 
the suiiraency orintuScieacy of it, only out of 
the body of it, without having respect unto any 
other thing whatsoever : that is, they suppose 
(he return lo ba true whatsoever it be: if it be 
false, tbe prisoner may have his actioa on the 
case against the gaoler that broi^ht bim. Now, 
my lords, when [lie prisoner comes thus to tht 
bar, if he desire to be bailed, and that the coutt 
upon the view of tbe return think him in law 
to be bailable, then he is always first taiiea 
from tbe keeper of the prison that brings Ua, 
and committed to the marshal of the KingV 
Bench, and afterward* bailed, and tbe entry 
perprtuailv is, ' Committitur Uariscello et 
' postea iraditur in Sail' ;' for tbe court never 
bails any man, until he lirat becomes their own 
priaoBer, and be ' incustodiaUariecall' of that 
court Bat if upon tbe returo of the Uabess 
Coq>us, it appear to tbe court, that ihe pn- 
ight not to be boiled, nor discharged 



ttf two kindly either merely matter of Record, 
or else the fomer rcMliuioos of the Judges, 
after solenin debate in the point. 

This point that concerns Precedents, tbe 
house of commons have commanded m« toure- 
wnt to your lordships, which I shall is briefly 
as I maVi so I do it lailhrully and perspicu- 
oyaly. To that end, my lords, before I caim 
to the particulars of any of tfaate Precedents, 
I ihall £r*t remember lo your lordships, that 
which will Mem •• ageneral key for the open- 
ioB and true appreheniioa of sll ihem of record, 
without which key, no man, nnleta he be versed 
io the enDries aiid coune of the king's-bcnch, 
can poinbly aaderstand them. 

In all cases, my lords, where any Right or 
liberty betoi^ to tbe subjects by any positive 
)bw written or anwritien, if there were not also 
■ remedy by Inw, for the eajoying orr^aioing 
(bis Kicnt or liberty, wb«i it is viohued or 
taken Kcnx him, tbe positive law were most 
vain, and to no purpose; and it were to no 
Mrpose f<>r any man to have any ri^t in any 
land or other mberiOnee, if there were not n 
known remedy, that is, an action or writ, by 
which, in some court of onHnary justice, be 
night recover it. Andin ihiscasa of R^htis 
Zjbertv of Person, if there were not a rnoedv 
in Ihe law for regaining it, when it is reitmined, 
it were of no purpose to ipnk of laws, that 
•rdmi] it should not be restrained. Therefore 
in this case also, 1 ibalt first shew you' the 
Kmedy that every freeman is to tne for the 
Tegaining of bis liberty, when he is against law 
ivprisoiuKJ, thnt so upon the legal coarse and 
ftrm to be held in using that remedy, the pre- 
oedetlCa or judgments upon it, fbr ailjudgmenls 
af record rise ont of this remedy, may be easily 
nnderstoodn There are in law diven remetjies 
lor inlarging of a freeman impriirnned, as [he 
writs of MM el ati*, and of A«iu«« replcgiaa^, 
besides the common or most known writs of 
Habeais Corpus, or ' Corpus cum causa,' as it 
» also called. 

The first two writs are to be directed to the 
■heriEFof the county, and lie iu some partieolar 
ctMea, with which it would be nntitiiety fbr me 
lo iroable your lotdsh^is, because they concern 
not that which is coonnittcd f> my chaige. 
But that Writ of Habeu Corpus orCorpus cm 
tmua, k tlK highest remedy in law, for any 
Mian that ii imprJeoa c ^ and th6 only remedy 
Ibr him that is iupnaooeil by the special aH»- 
■Mild of the king, or the Iwds of tbe Privy- 
Cmdm^ witboat shewing ouiae of tbe comnnt- 
wmU: Deither is there in tbe law any mch 
ihii^aQr watthfM •vcrneatiaBofanyiMk 



from itae prison whence he is broueht, ilwit be 
is remanoed or sent back again, there to con- 
tinue, until by cowse of law be may be deli- 
vered; and ihe entry in this case i*. ' Remilr 
' titur qnoiuquc secundum legem delibaratu* 
* fuaril,' or ' Remittitur, quousque,' &c which 
is all one, and- the highest award or judgmtnc 
that eter was or can be given upon an Habeas 
Corpus. But if the Judges doubt only whe- 
ther in .law they ought to take bim from the 
prison whence he oame, or give a day to the 
sheriff Id amend his writ, as otteo they do, tlseK 
they moand him only during the ttma of their . 
doabt, or until Che sheriff liath aineuded hie 
tetun, and the entry upon that i* ' Rca 
only, or 'B e iai tt it tt r |>rii«n« pnad.* i 



97] 



STATE TRIADS, 3 Charles I. rMB.—lie LiterlytftlieSa!^. 



Hfij more. Anil so ' remittitur' gencmtljr' it 
nf tar Icii luoment in tlie awnrd apon xte Ha- 
beas Corjms, than ' remittitur quousque, &c. 
iKmever ihe vulgar opinions raised out of the 
lHt»> Jutlgiii^nt. he to the c.iiitraiy. All ihcie 
ihin^ are of most known nnd constmit use iii 
the Court ot KingVBeDch, as it cannot he 
double't but Tour lordsliips tvill ensily know 
from [hegmvcHnd lenrned my1ard$ thejudges. 
These twu coiirsM, the one of the entry of 
' Ctnnniittitur Mariicall. et |io9iea iraditnr in 

* Balliuiu,' and the nther ' remittitur quoujqne 
' &c. el femitiitur' generall?, or ' remiitiiiir 

* prisons pr!ed.' lugither witJi the nature of 
the llabe«t Corpus, thus stated ; it will be eap 
sier for me to open, and your Irtrdships to ob- 
Krve, whatsoever shnll occur to die purpose in 
tlie Piecedcnts of Itecord, to which I sIibII 
coDie now in llie. particular. But before I 
come to the Precedents, I am to Ik you know 
tbe Resolution of the house of coromons touch- 
ing the CDlargement of a maa .committed by 
the comramd of tde king, or the privv-couricit, 

. M any other, witliout cause shewed of such 
commitment : it is thus ; That if a freenian be 
commitCed or detained in prison, or otherwise 
restrained by the command of the king, the 
privj-council, or any olher, and ou cause of 
*ach CQiQTnitineTit, detainer, or restraint be ex- 
pressed, for wifich by law he ought to be eoni- 
mitted, detained or restrained ; and the same 
be rttnmed upon an Habeas Corpus granted 
fijr the psrty, then he ought to be delivered 
and bniled. 

This Ri^solution, as it is grounded upon the 
•ct* of parliiment already she^n, and the 
muon or the law of the land, which is com- 
mitted to the charge of another, and anon also 

penei to you, is streaglheued also t)y 

recedents of Ilccord. 

he Precedents nf Record tliat concern 
this point are of two kinds, for the house of 
commans haih infarmed itself of such ns con- 
cern it cither way. The first, such ns shew ex- 
pressly, tint persons cnmniittKl by the .cnm- 
mand if the king, or of the privy- coniicil, wiih- 
ont other cnnse shewed, h.ive been enlarped 
Dpon hail when they prated it; whence it ap- 

Gars clearly, that' by llie law, they are ha ila- 
!y and so by Habeas Corpus to be set at li- 
betty : for though they ought not to have heen 
committed without a cause shewed of the com- 
milmenl, yet it istrue thai the reverend judges 
of this land did pay such respect to snch com- 
ritmenu, by ihe command of the king, or of 
tbe lords of the council, (a4 also to the com- 
mitment sometimes of inferior persons) that 
npon the Habeas Corpo.s, tbey rarely used ab- 
solutely to discharge the persons instantly, hut 
only to enlarge theni.upon bail; which siiffici- 
eatij securer and preserves the Liberty of ihe 
Scbject, Bcordinp! in the la«s tliat yonr iord- 
ihips have alrcaily lieard, nor in any of the 
eases is there any difference mede between 
■odi comniitments hy the lords of the council, 
that are incorporated with hiih. The second 
Ijnd of precedeati of Recotd aie, sitcU u have 

Yttf, Ut. . 



many Precedeo 



l*en pfetendej to profe the law to he rontrnry, 
and thai pcrsoni so committed oughi not to be 
set at liberty upo|i bail, and are in the nature 
of obiertions out of reccird. , 

I sTiulI deliver ilicut sinnmarily to your lord- 
ships with all faith, mid iilso true copiu^of 
them; out of which it sIihU appear clearly lo 
your lordi^lirp!, tlmt of tliot>c ol the hYst kind, 
there are iiu less than twelve, most full and 
directly in llie pnint, to prove that persons sa 
com mi I ted are to bedeliiereri upon bail; anrt 
amongst those of ihe other kind, (here is not 
so much as one, not one, that proves at all any 
tiling to the contrary. I shall first, my lords, 
go through them of the first kind, and so oU- 
serve them to your lordships, ihnt such scruples 
ns have been made upon them l>y some that 
hove excepted agninsi them, shall be cleared 
also according as I shall open them Bevemlly. 

The lirst of llie first kind i^ of E. Sd's time, 
it is in Pnsche 18 E. 3, Ilot. 33. The case na* 
thus : king E. 3, had commilied by Writ, and 
that under his preat seal (as nyDSt of the kiiig'» 
commands in lh'>se tlhles were) one John de ■ 
Bildestoii, a clergyman, to the prison cf the 
Tower, without any cause shewed of the conw- 
mitmenl, The lieutenant of the Tower i» 
commanded to bring him to the KingViutncli, 
where he is committed to the marshal ; hut tin 
couit aski of the Lieutenant, if there were any 
cause to keep tins Bildestnn in prison,, besides 
that commitment of the king; he answered 
no ; whereupon tlie ItoU says, ' quia videtur . 
' cur. hre. pned. sufficient, nnn esse causom 
' prxd. Johan. de Bildeston in |irison^ dom. 
* reuis llie dciinend. idem Johannes admitlitur 
' per manucaptionerii Willielmi Je Wakefield,' 
and some others, where the Judgment of the 
point is fuHy declared in the very point. 

The »ecoiid, in the first kind of precedents of 
RecoH, is in the time of 11. 8, one John Par- 
ker's Case, v.in> was committed to the sheriff 
of London, ' pro sccuritate pacis,' at the suit of 
one Brinton, ■ ac pro siispicinnefelouis' com- 
mitted by liim in Gloucestershire, * ac per man- 
' daium doUi. n.' he i* comoiilMd to th* 
marshal of llie Kin|>'s- Bench, ' et poslea ista 
' eodem termino traditur in BbU",' Here were 
otlier causes of the commitment, hut plainly 
one was by the command of the king, si^niiied 
to the aherifis of l^oadon, of which they took 
nntice: but some htive Inlerpreted this, as if 
lad been for suspicion of 



is bailable; but no man can think so of this 
precedeni, that observes the contest, and under- 
stnnds the grammar of it, wherein most plaittly. 
' ac per niaiidaium dom. regis' hath no rafe- 
rence to any other cause whHlsoBver,but is * 
single cause enumeroied in the return by itself, 
as the record clearly sbcwcth ; it is in SS H. 8, 
Sot. 37. 

The third is of the same king's time, it is 3& 
H.& Rot. 33. John Block's Case; hewascom- 
mitted hy the lords of the council ' pro siapi- 
' cionfl fiMoniEE ac pro aliii causis ilk» inoventi- 



STATE TRIALS, 3 Charles I. ie2i>—pTpceeiuig» in Parliament relating to [lOO 

ThefifU) ofthii kind isof queeo Mnry's lima 
alMj, it is P«sch. 4. & 5 P. & Mar. Rut. 45. 
the Chsc orEtUard No'pott i He wub lirnught 
iiitD the Kiiig's-Bench \>y Habeas Cnrpui out 
of tjie Tower of Londun, ' Cum cauM, vit. quod 
' commissiis fiiic|)«r mandncurai Cuncilii DnmioB 
' lte|[iii», qui coniuiitiitur Marr. et iiuuiediure 
' Craditnr ill Balliuiu.' To tliis ilie like iinswer 
has been made, as to that otber case of Over- 
toil's next before cited ; they saj that in ano- 
ther roll of Bnolher term of the mme year, it 
■ppeari lie was in question for suspicion of 
coming, ftud it is irue he naiso; but the re- 
turn, nndhia coaunitmentmentionedin it, have 
no reference to any inch offence, nor holh tha 
bailment of him relation to any ihinj;, but ta 
the absolute coiDinitinent by the Privyn^iuncil : 
So ihnt the ansvrer to the like objectioii mnde 
^^iist Overton's Case, satisfies this also. 

I'hc sixth of these is of nueen Elizabeth'! 
lime, Mich. 9 El. Rot. 35. the Case of Ibo. 
Lnurence ; tbi) Laurence come in by Habcu 
Corpus, returned by the (hcriDli of London, tu 
be detained in prison ' per niNiidat. Cuncilii 
' DominB R^iii*, qui coinmittitur Marr, tt 
' super hoc trndilur in Balliuin.' - Ail objectiDii 
liuth been invented a^ainK this also ; it hath 
been laid, ibit tbii mni) was pardoned, and 
indeed it appears lo in (be margin of tlie toll, 
wliere tlie vrord ' pardonatiir' i> entered -. but 
clearly his enl;iT);emen( by bail vru upon tha 
b'ldy of the return only, uncu which that aot« 
of pardon In tlte margin of tbe R<ill liath no 
relation at nil ; and can any man think, lltal a 
man pardoned (lor what oHence soever it be) 
might nut as well be commitied for soma Arca- 
num, or ma^[ of stale, as one that is nut par- 
doiinl, or out of his injiocency tvanh no pardon? 

The serenth <,f these is in ibe same year, and 
of Eoster-tcnn fallowing: it in P. 9,.Kot. 68, 
Riihert Coiutable's Case : H« was broU|tht by 
Habeas Corpus out of tbe Tower i and in tba 
return it appeornh he was cimmitced there, 
' per luaudatuD privati Concilii DnininR Re- 
■ gina), qui cominiititur Mar. ct posiea isto 
' eodcm ter* traditur in ball.' Tbe tike objec- 
tion bath been mnde.tu thii, as that liefore of 
Lnureuce, but tlie seir-saine aosner deaily ;»- 



' bus, qui commiititur Mariscallo et immediate 
' ex gmtin curix speciale traditur in Bell'.' 
They conuniited him for suipicion of felony, 
ami other causestbemdicreuiiloiuovin)^ Where- 
in there might he matter of state, or whalsnever 
else can be anpposed, and plainly the caute of 
their eimimilment is not expressed ; yet tlie 
court bqikrt liim without hnTing regard to these 
unknonn causes that moved the lords of ll>e 
council. Rnt it has indeed gome dilterence 
front eiiher of those other mo that precede, 
«nd fr-iin the oihcr nine also that bltow ; for 
it ii agreed, that if a cause be expressed in the 
rNurn, insomuch that ihe court cnn kuow why 
he is coiuinitted, that then he may be bailed, 
liutnnt if they kuow not the cause. Now ifn 
man is committed for a cause expressetl, ' ct pro 
' aliit ciiuBJs dAminos de coiicilio moveiitilHii;' 
certainly the court can no more know in (uch a 
due wh-it the cau^c Is than any other. 

The fuunli of these is in llie time of queen 
Mary, it is Pasch. 3 & 3. P. & Mar. Rnt. S8. 
Overton's Case : Ricliard Overton was teiuM- 
ed upon an H^ibeas Cprpui, directed to tbe 
sberinsof Londou, tu hate been committed and 
detained ' per niandatum prenobilium domi- 
' norum bonornbilis concilii dominomm resis 
' et rifiax,qui citmmittitur Marr. et immediate 
' traditur in Ball'.' In aasiter to this prece- 
dent, lir bjf way nf objection to the force of it, 
it hath been sajd, that this Orerton at this lime 
ttood indi' l£d of High-'Treaiun. It is true, he 
ivas so indicted, but tliat appears in another 
Ridl, that hath no relereuce to the Return, as 
d>e Ketuin hatli no reference to that Roll; yet 
they that object this against the fiirce of this 
precedent, sny, that becun^ be was indicted of 
■reason, tlierettire ihiugh he was committed by 
the coniniHnd of the lordi of the council, witli- 
out cause theweil, yet he was bailable for the 
treason, Bn<l upon that ivos here bailed : than 
which objcctiQii noiliingis miire contrary, either 
to law or common reason. It is most contrary 
til law, for that clearly eceiy Iteturu is (n be 
BT^udged by the court tint of the body of itsetti 
and not by any other collateral or foreign re- 
conl «h;iiEiiev«r. Therefore the matteruf the 
indictment here, cnnnot in law he cause of 
bailing of the prisoner ; and so it is adverse to 
alt common reason, that if the objection be ad- 
mitted, it must of ueceisity tbllow. that whoso- 
ever tball be cimmitted by the kine, or privy- 
council, without OHuse .'shewed, aniTbe not io- 
dicled of treason, or tome otlier offence, may 
not be enlarged, by reaaaii nf supposiiion of 
(natter of state. But ihat whosoever is«o com- 
mitted, and withal stands so indicted, though 
in another record, may be enlarged, whatsoever 
the matter of iiate be for whii^ he was com- 
mitted. The ahiurdiljof which assertion needs. 
not a word fur further confutation, ns if any of 
the gentipmen in the last judgnienr, oucht tn 
have been the sooner delivered, if he had been 
also indicted of tre»!ion; if so, TmliDn tmd 
Felons tiiive the hi^licst priiilege in personal 
lifaeitv, and that above all Qtliersubjecif of tbe 



tisfiesfur ihem Iwth. 

The eighth is of the rame .queen's time, in 
Pasch. 20 Et. Rot. Ti, Jolm Browning's Case. 
This Broanin; came by H. Corpus out of tha 
Tower, whither he bad been committed, and 
was returned to Imre been coininitted, 'per 
' privnt. Concil. Domins Regine qu: t^unniitti- 
' tur Mar. et posica isto eodtm termino trnditnr. 
■ in ball.' Tu this It hath leeu said, tlintit was 
done at the C. Justice Wraj's chamber, and 
lint in the Court: and Urns tbe nuihority of tbe 

Ereccdeiit hath been lessened or slif-htcJ. If it 
ad been done at liis chamber, it would ba*e 
prived at leti^t this much, that sir Christ. 
Wray, then C. i. of the Khig'i^Bencli, being « 
grave, Jeamed, and upruht judge, knowing th« 
law til be so, did bail this Browning, anif en- 
large him, and yven so far the precedent were 
of vulueeuough;butitis plain that though ibo 



STATE TRIALS, 3 Chai 



101 J 

H. Curput were returnable, tis indeed it »p- 
pean in the Kecunl itxlf, at hit cliauiber iii 
Serjeanti-Inn, vet be unN commiUed kijQ cu 
(h« KiDg's-Beiicb {jroteutly, Knd left'ri'eil tl>c 
coD^deratiun Of ciil.-irging tiira lo l!ie cuurt, 
wlio afterwHrd did it: for tlie Record ms, 
* Ex posien ulo eodeiQ tennino trndilur id bull.' 
"licliciiinol Leof au 



nnino trndilur 
enlargement nt ilie C. 

Ju^tilV*s chamber. 

The ninih of this first kind is Hill. 40 B. 
Hot. 62, Edward HurecDurt'sCuse; lie was iio- 
prisoned in the Gntelioiise, and tliai ' per do- 
' niinas de privaio condtio dominie regina pro 
' cestis causis coi movent ibus et ei ignotis:' and 
upon liis II. Corpus was returned to be tbere- 
'"eonlT detained, ' Qui cnoimittitur Murr. 



Tothis 









1 ball; 



■ti; colour of HtiisiTer liath liet 
JM oSereil. 

Tl>e lentil is Cateibie's Case in the Vacntion 
after Hill. Term, 43 El. Rot. Itobert Cnte>bie 
wa* <:amiuitted to the Fleet ' per warrHotuui 
' divenor. pmnubiliuni viror. de privato con- 
' cilio doming re^inx ;' be was brought before 
JDsticeFeiiner, oneof tbe then justices of the 



' per prvfat. Ednardam Feniier, et statitn tra- 
' ditnr in bait.' 

The ele»enth k Rich. Beckvitli's Case, wbirh 
was in Hil. 12th of king Janies, Rot. 153. He 
»*s retarned uuon his H. Corpus to havs been 
committed to the Gatehouse bj dirers lord* of 
the priry-council; 'Qui cointnittitur Mnrr. et 
' postea isto todem terminn traditur in bnll.' 

To this ithaih been said by some, that Qeck- 
wiih' was bailed upon a letter, written by tlie 
honh of tbe Council to that pu^-pose to the 
Jui^ei; but it appears not tliat there was ever 
auj ieller written lo tbein lo that purpose : 
which though it Imd been, nould bare proved 
Dolhing airiimst the authority of the Record ; for 
it was never hrard nf^ that judges were tu be 
directed in point of law by letters from the 
Ipnb of tbe council, although it cannot be 
doubted, but that by such letters sometimes 
they have been tnoved to bail men, that ivoiild 
or did not ask tlieir enlargensent wilhouc such 
tetter^ as in some eiamples I shall shew jour 
lordships ainong tbe Precedents of the Second 

The twelfth and last of these is that Of sir 
Tbo. Monson'i Case ; ii is Midi. 14 Jac. Rot. 
117. He was committed to the Tnwer ' per 
' warrantnm i diversis domittis de privaio con- 
' dlin domini regis locum teoenti directum ;' 
■od be was returned bv the limiennnt to be 
Aeref ire detttined in prison, ' qui committitur 
* Alarr* et super iradiiur hoc in mIL' To this 
It bath been answered, that every body knows 
by common fame, that this gentleman was 
coRusiited for suspicion of tbe death of urTho. 
Overbury, and that he was therefnro bailable : 
a most atrsnge interpretation, as if tlie body of 
the Return and the Wnrrant of the privy-coun- 
dl itmntd be uoderetood, and adjudged out of 
bmtt oolj. Waa there voc aa much a fame. 



I S2H.— M« Li&erly <^the Sv^nl. [ lot 

why the genilemen, that were remanded in tb« 
Intt judgment, were committed, and uiiglit not 
tlie sell-lame reasi ■ have served to eiilurt« 
them, their olTeiice, if any were, being 1 think 
iquch less thin that for whicli lliis gentleman 
wBa suspeged? 

And thus I bare faithfully openert the nuiH' 
I ber of tnelve Precedeuts, most express in the 
' rery point in qiiesii^in, aii'd clHarml the objec- 
I tiuns that liave been made against theiD. Aiid 
of such Precedents oCRecord'as are of the first 
kind, which prove plainly the practice of funner 
Mgei, and Judgmeiit of ihe court of kind's bench, 
ill the very point, on the behalf of the subject, 
my lords, hitherto. 

I come next to those of the second kind, or 
such as are pretended, that persons so com- 
mitted are nut tu be enUi)^ by the Judge* 
upoii the Habeas Corp»s hroi^lu, but tu rt- 
main in prison ttill at the conmiaud of the 
King or the Privy-Counciit. These are of two 
natures; the first of theae are, where some os- 
sein of (lie Kmg or the Privy-Couocil api>eut* 
upuo the enlaigemeiit of a prisoner so commit- 
ted ; as if, tlial because such atient appear., tlie 
enlari;ement could nut have been witiiout such 
assent. — The seconil of tliis kind, are those 
which have been urged as express testialonie« 
of tlie Judges denying bail ; and in tush cases, [ 
shall ojien these alto to your lordships : which 
being done, it will most clearly appear, tliac 
there ii uoihing at all in any of these, tliat 
makes any tiling at all against tlie Resulution 
of the house of commons, touching tliis point; 
nay it is so Gir IVOm their making any thing 
aeainst it, that M)me of tlieni add good weight 
also to tbe proof of ihat Resolution. 

For those of the first natur^ of this second 
kind of Precedents, tbey be^n in tbe time of 
H. 7. Tbo. Bruiixe, and diiers other:^, netc im- 
prisoned in the King's-Dench ' ad mandaium 
' doniiui regi>,* tliey npver sought remedy by 
Habeas Corpus, or otberwite, for aught ap- 
pears : But the Roll says, that * dominui rex 
' relanHvit mandiitum,' and so they «'ei-e bail- 
ed. But can any man thiuk, that this is an ar- 
gument either in law or common reason, that 
therefore tliey could not have been bailed with- 
out lucb aiseni } It is coromoo in cases of 
copimuu persons, that one being in prison for 
surety of the peace or the like, at the suit uf 
another, is bailed upon the release of the party 
plainiilT; can it follow, that therelbre be coulit 
not have been bailed without such release ? 
Nothing is more plain than tlic contrary. It 
were the same thing to say, tliat if it appear, 
tbnt if a pluiiitilT be noii-iuit, therefore unless 
be had been n^m-sult, be could nut jnive beeit 
barred in the siiit. Tbe case last cited is Mich'. 
7 H. 7, rot. a. 

The very hLe is in the siunc y'ar. Hill. 7 H. 
7, Rut. 13. The cose of Will. Bartholomew, 
Wifl. Chase, and divers others, and ihe self- . 
same answer, that is given to the other, clear* 
this. 

So ill the same ycnr, Pasch. 7 H. 7, Rot. 18. 
Jobii Bcumoud's case, ij tbe tame in tuUianca 



t03] STATE TUIALS, SCuaslksI. 16'2S.'-Proucdings mfartianaMTtluitiglo [10* 
emiwer tKkt 'latisfies for tlie r^t berore cite4, 



vitli clioK oih«r too, and the Mtf-ume aositer 
Uto satisfies, that cleats them. 

The next cRse a, Micb. 33 U. 7, Rot. 8. 
Tlio. Yew's case ; he was conmuUed • sd sec. 
* pacis,' fiir tlie security of tba peace, at the 
suit afoiie Freeman, aiid besides, ' ail iiiondn- 
■ ' tuiu dum. rtgis.' And first, ' Freeman re- 
' iai;nicsec,pacis,' anil tben lir Juints lIol>- 
bard, llie then l(bg'» A uomey -General, ' re- 
< lixuric maiidatuiD dum. regis ;' nnil hereupon 
hi! is bailed, Tlie release uf the Jung's Ati«r- 
riej ni) more proves that he could not have 
been eiilarijed wiiliouC tucli release or ass.eiu, 
ihmi tjiat he could not h;ive been bailed n-ith- 
«ut reluaic ufsurery ol tlie peace by Freeman. 
Thu very hke is in Uill. g U. 7. Itot. 14. 
Tlie crt^e of Humphry Broclic, which proves no 
iiiorc IiiTo than the rest of this kind already 
cited. 

llien for tliis point also, Broome's cose of 
^ueen Elizabeih'a time, is Tiiii. S'J F.J. Rot. 
138. Laurence Brooue nas. cmninitled ii> 
the Gate-iiouie ' per nianilatum diuu. concilii 
' dominie rfgiuie,' and being reiurn«ri so upon 
tha n. Corpus, is firkt cuiumiltcd to the Miir- 
shfllsea a^ the course is, and then biiiled by the 
Murt; which indeed is an express precedent, 
that might perhaps well have been added tu 
the DuiQber of the firjt twelve: which so phiu- 
JT'sheivs the practice of enlarging pti'oners Li 
this case, by jtidginent of the court upmt the 
II. Carpus. But it is true, that in the Scroll: 
of that year, wheie tlie bails are entered, but 
not in the Kecurd of tlie H. Corpus, there was 
II note, that this Broome wits bailed ' 
' datum priTati cuncilii;' but plainly i 
any kind of argument, tli;it ther^te in Uw he 
might ni>t liave beeu otherwise bailed. 

Tlic silf-iaine is to he said of another of tliis 
kind, ill Mich. 40 £1. Rot. 37, Wmden's Ca 
.Tho. Wcnden nas committed to the Gatehoi 
bj the quran and llie lords of tlie council ' pro 
■ ccrtis cauiis ' generally ; he is brought by H. 
Corpos into the King's-Bencb, and bailed by 
(he court. But it is s^iid, that in the Scrolls of 
that year, it appears that liis eiilai^eoient was 
' per coiisensuin iluin. privati concilii ;' and it 
is true that tlie ciueeu's Attorney did tell the 
court, that the lords of the council did aueni 
to It. Follows it IliereJbte, that it could not 
bare been without such assent 1 

Next is Hill. 43 £1. Hot. 89, »- hen divers 
tenlleiueu of fecial, quality were iiapri^oned 
bj the cominaiid of tlie privy- couucil ; the 
queen beiiig graciously pleased to enlatge 
Ulein, sends a commandment to the judges of 
the King'»- Bench, that they sliould take such a 
course, for delivering tliem npon boil, as they 
should tliink lit : antTthey did so, and enlBrgeil 
tbem upon writs of H. Corpus. Follows it 
therefore, that this misht not hive been done 
by law, if the parties themselves had desired it? 
So ill Ttin. 1 Jhc. RoL 30. Sir John 
Brocket being Committed t« the Gatehouse, is 
returned to stand cummitl«d ' per mandatuin 
• privati coticihi,' aiid be is enlarged ' virl 
' wurnuitj u coDcilid piediclo.' But the ei 






for this also. 
The last of these, 
la Jac. Rot, 119, 
Gatehouse bj the lords of ilie counrii, and be- 
ing brou^t iiiL» llie KiugVBeUth' by Unheal 
Curpu^ IS enlu^cd upon bail ; but this iliey 
say was upi(n a letter written fiom one of tbs 
lords of tlie council to the judges. It is trap, 
that such a letter was nritteu, but ihe auswct 
to the former precedents of this nature, uieMf- 
Gcieut t't clear ttiis also. 

And in all tliese observe, 1. That it appears 
iiot, lliat the party ever desred to be enlarged 
by ttie court, cr was denied it. 3. Letters 
either from ilie kini; or cuuncil cannot alter the 
law in any case : »•> ttiut hitherto nutliing liatli 
been brnuglit on the cunttary part, tliat hath 
any t'rice or colour u£ reason in it. 

Wo conie now, ray lords, to those Prece- 
dents of ihe oiher naiure cited against the Li- 
berty of the Subject: that is, such as biive 
bL'eii used tu mislibe llie persons eo committed 
may nut bu enlnt|;«d by the court. They ore 
in number eight, but there Is not one of them 
thitpioves any such thing, as your lurdsliipf 
will phiinly itM upon opening them. The liist 
four of them are exactly in the same words, 
saving that the iiumes of the persons, and the 
prisons dilfer ; I shall Uierefure recite them all, 
one after uiiuther, <tuil tlicii clear them lo- 
gethcr. 

The first is Richard Everard'* case, Hill. 
T H. 7, Rot.- 18. Ho and others were cm- 
mitt.d tu the Alilishalsca of tlie liousliold, ' per 
' mandntiim domini regis,' and so riiiurued 
upon n H. Corpus into the King's-Bcnch ; 
tvhercupuii the entry is only ' Qui cuuiiniuilur 
'.Matr.'&c. 

The second is Hill. S Hco. 7, RichardCber- 
rr'i case ; he was ciiiiiinittcd lo the mayor of 
Windsor, ' per mandatum domini r^is,' Bnd 
so returned upon u H. Corpus ; and tlie eairy 
is only, • tloi committitur Marr.' &c. 

The third is HiU. 9 Hen. 7, Hot. .14, Christ. 
Burion's case, wlio wud committed to the Mat- 
shulsea of tlia houshold, ' per mandalum do- 
' mini regis,' and so returitcd upon his Ilaleu 
Corpus ; and the entry is likewise, ' Qui com- 
' niittitur Marr.' &c. ' 

The fourth is Geurge Ursnick's c^e, Pasch. 
19 Hen. 7, Rot. 10. He was commuted to tbi 
iheriils of London, ' per maiidatum domtni 
' regis,' and returned so upon his Habeas Cor- 
pus, ' Qui conimittiti^ Marr.'&c. 

These four have been used principally, at 
express Precedents, to prove tliat a prisoner so 
commilled caiinot be enlarged; and perhaps 
at the fitat sight, to men that know not, and ob- 
serve not tlie course and eutrie» of the court of 
King's-B'encli, they may be apprehended to 
prove as miicli : bulin truth they rather prove 
ihe contrary, at least there is no colunr in 
them of any such matter as they have bean 
used for. To whicli purpose I beseech yoi^ 
lordships to call to your m "'""' ~ 

I first obserred to )'uii ' 



(he course of 



101] 



STATE TRIAI^, 3 Chable* L 1«S6.— tAe LiUny qftKt Sulijcct. 



.[»» 



thit coort. Where a priwoei U brought in 
h; U. CuTpus, lie ii (tf lie be not lo be ic- 
nuuiiJed) first ctnuuiilled tu Uie martlial of tiiB 
oMirt, and then Laijerf as hi» Case [«|uire*. 
This ii sif ceitaiD, na it on n^ver be otbtirwbe. 
Noir tb«*e incD beiog thus cummitied bjr Lhe 
npins coDiniiud of the king, big fine, ifou see, 
ttkcu from the prtiont vihidwT tliey were first 
comiuilted ; nhEreiu you ufaj ubsirTc, my 
lordf, ihatif* general siupiciuD of matter of 
Mjle vere of force in such a cn$e, it might be 
u De«dfiil in puiiit of state, to have the prisoner 
reoiaiji in thepriiuD, vrhera the king by luch an 
absolute coinniand comniiited hire, u to bare 
llim at all commitud. When they have takea 
them from tb« priaoos where before they were, 
the; commit ibem to the marshal of Uieir o«ra 
cnuit, which is hut the first step to btiliaK 
them. Now it appears not inileed that they 
mre bailed, tor then ' TraJiiur in Ball' had 
fiiUowed, bot nothing at all appears that ihey 
irere denied it; perhaps they never asked it, 
peilops tbey couid aot find such as »ere auffi' 
oeat to bail them. And in truth, whenso«Ter 
■nj man is but removed from any prison in 
Ei^land (though it be for debt or traspess only) 
■Bto that court, the entry is butiDthaself-saui* 
•yitables as in these four cutes. 

And in truth if these Proceediags did prove, 
that, aor of the prisoners named in them were 
Dot bailable, or had been thought by the couft 
not to have been bailable; it miU neoetsarily 
follow, that DO man living that is ordinarily re- 
tBored fram any prison into the King's-Bench; 
Of that is (hue upon any ordinary action of 
debt, or actioB of trespass, could be bailed; 
far avary man that is brought thither, and not 
reoHUided, and every maa that is arrested but 
fcr a debt or trespass, and was returned into 
that court, is hkewise committed to the matahal 
of that court, and by the self-same entry, and 
not otherwise; ret these four have been much 
sbKid on, and nave strangely misled the judg- 
ment of tome that did not, or would not, seem 
(o understand the course of that court. 

The Gtth of this natare is Edward Page's 
Casej it is Tr. 7 Ben. 8. This tfiight have been 
wcUteckoaed with tbefonner four, had not the 
miimiiy of the derk only made it vary from 
them. Bdward Page was committed to the 
Maiabalse* of the Itousliold, and tfiat 
' mandatum domini regis,' and returned 
thenfore detaiived, and tlte entn is ' Qui 
' mittitnr Mar* bospitii dont. rctiii.' This wotd 
' UaiT.' is written in the margin of the Boll; 
tbia hath been used ta prove, that the judges 
remanded tliis prisoDfr ; if they had. done m), 
the ranaoding bod been only while they ad- 
' vised. Mid not any such award wliich is given 
when tb^ adjudge him not baiJable. But in 
truth the word * committitur' shews, that there 
was not any remanding of lum, nor doth that 
ODurt ever commit any man to the MarsbaUea 
of the hnuihold: and besides, the word ■ Marr.' 
fur Marescallo in the marein, sliews plainly 
d«t he was committed to the marshal of Um 
Kat^t-beacii, and not mnandod, to tha Mar- 



ahalsea of the houbb<4<l ', for sudi entry oftluC 
word in the m&J^n, is piu-petuaUy in cases of 
that uatore, when ttiej comoiit a mivi to their 
own prisuH, and so give him llie first step ta 
bailmeot,' which he may have if he aik it, and 
can find bail. And ikubtlesB these words of 
' llospitii-prsd.' were added by the error of ttie 
cleVk, for waut.of disiiiictloo in his undentand- 
ing, from the ' Mair.' of the Kiiig's-'beucb, to 
theBiarsbat ofthebouiholdl 

The siilb of th^se ia Thomas Ctnar'»Case ; 
' : is 8 Jac. rot. 99. This Cesar was committed 
D the Marsbslsea of the honsbold, ' per man- 
datum domini regis/ and returned to Iwtlicre- 
fbre detained, and indeed a ' remittitur' is in- 
ihe roll, but not a ■ remittitur quonsque,' but 
only that kind of ' remiuitur' which is oal^ 
used while the Court advises. And in truth this 
far from proving any thing aguDst tha re- 
solutioo of the house of^commons, tliat it ap- 
pear* that the opinion of the reverend Judges 
of that time was, that the return was intufficient, 
and that if It were not amended, the prisoner 
shall be discharged. For in the Book of Roles 
in the court of iUich. Term (wlien Cesitr'a 
Cm* was in question), they Expressly ordered, 
that if the steward's marshal did not amend 
their return, the prisoner should he absolutely 
diachtuged : the words of the rule are, 'nisi 
' senesodlus et marescal. hospilii domini Te|^ 
' Buficienter retumaverint breve de Habeas 
' Corpus Thorns Ceesar dier. Mercur. proi. 
' post quinrienam scilicet Martin, dcf. exnne- 
' rabitur.' And this is also the- force of that 
precedent, but yet there bath been an interpre- 
tation upon this rule. It bath been said that 
(lie judges gave this ru|e, because ihe truth was, 
that the return was false, and that it was well 
knowD, that tlteprisonerwasuotcnmmitiedby 
tliE immediate cumniaud of the king, but by 
the command of the lord-chamberlain, aart' 
tbence(nsii was said) theymadetliiii rule; but 
this kind of interpretation ii the fir^l that ever 
was supposed, ihatjudies should take notice 
of the truth nr felshaod of tlie ratum, other- 
wiie than the body of the return could inform 
them. And the lule. itself speaks plainly of 
the Bufficieocy only, and not ol the truth or falv, 

lite seventh of tbeae, is the Case of James 
DeiinaMtres, Edward Emerson , and some others 
that were Brewers, and were committed to the 
Marshaliea of the boushold, ' per .mandatum ' 
' dotnini regis,' and so returned upon H, Cor- 
pus : an^ it is true, diat the roll shews that 
they were remauded, but the remonding was 
only upon advisement. And indeed the grave 
and "upright judliea of that time were bo careful, 
lest upon the entry of the remanding, any such. 
mistnke might be, as ml<;ht perhaps mislead 
posterity in so great a pomt, thnt they wo«ld^ 
eapressly have this word < immediate' added 
to the ' remittitur,' that so all men that should' 
meet with the roll might see, that it wts done 
for the present only, and not upon any debate 
of the questioii. And bendcs, thnt there is no 
' quouique' to it, which it usually added, ujien 



107] STATE TRIAIS, SCflARUirl. lOQS.—Proceedmgi in Parliatnail nlating to [lOS 
die highest award opoa liebite or resolnCion of 



iiHill. It Jbc. Sir SnniiiGl Salton- 
■tali was commiunl to the Fleet, ' per manda- 
. ' tum domini regis ;' and benides, bf the Coart 
' of Cluincerr, for disobeying an onler of that 
oourtf and is returned apon his Habeas Corpus, 
to be tbereHire detained. And il i» true tJiat a. 
■ remittitur' is entered Id the roll, but it is onlj 
» ' recaittitur priMtoe predict.' withnut ' qtious- 
' que McuDilum legem deliberatus fiierit :' and 
id truth it appenrs on the record, that the conit 
|:aTe tbe Warden of the Fleet tbree sereral 
dajs at *eT«a^ times tn ameud hii return, and 
in the interim ' remit til ur prison ae prted'.' Cer- 
taiuijr if the cuuit had thought that tlie return 
bud been good, the; would not have given so 
many several days to have amended it ; for if 
that ' mandntum domini te^s' had been suffi- 
cient in the- case, why need it to have been 
UDendedf 

Tbe ninth Bud last of these is, Tr. 13 Jac. 
rot. 71, the Case of the said sirSai^uel Saltan- 
■tall: he is returned by the Wtrden of the 
Fleet, as in the i;ase before, and generally, 
' reautkitur' is in the roll, nhich proves nothing 
at nit, that therefore the court thought he might 
not by law be uilarged ; and besides, in both 
CBsei be stood committed also fur disobeying 
' an order in the (Chancery. 

Theiie are all that have been pretended to 
the contrary in this great point, and upon the 
view of tb^ thus opened to your lordships, it 
is plain that there is not one, not so much ns 
one at all, that pToveth any such thing, as that 
persons committed by the command of the 
(inf, or the lords of tbe council without cause 
ihewtd, might not be enlarged ; but indeed 
iha most of .them expressly prove rather the 
contrary. 

' Now, my lords, having thus g<me through the 
Precedents of Record, that cnncem the pninC 
of eitlier side, bclbre I come to the oilier kind 
of Precedents, which are t*ie solemn llesolu- 
tioos of Judges in former timet, I shall (at I am 
eoramanded also by the -house of commons) 
represent unto your lordships somewhat else 
the; have thought very considerable ; with 
which they met, whilst they were in a most 
careful enquiry of whatsoever concerned them 
in this great question. 

It is, uijr lords, aDraueht of an Eni^ of a 
Judgment in that great Caae lately adjudged 
io the court of King's- bench, when divers gen* 
tlemen iraprisoaed 'peaspeciale mandatnm 
' domini rrgis,* were by tbe award and order 
of tbe court, after solemn debate, sent back to 
prison, because it wat expresily said, they could 
not in justice deliver them, though tbey prayed 
to be bsiled. The Case is famous, mid well 
known to your lordships, therefore 1 need not 
fiirtber (o mention it : as yet indeed there is 
no Judgment entered upon the Roll, but there 
is room enuu^ for any kind of Judgment to be 
cnttired. But, my lonls, there is a form of a 
Judgmentj a uott luutnal one j itich a on* as 



never was in any such case before (for indeed 
there was never before any case so adjudged), 
and thus drawn on by a chief cleil of that 
court (by direction of Ur. AiCurney-Genenil), 
as the house was informed by the clerk, in 
which the reason of the Judgment, and remand- 
ing of those gentlemen, is expressed in inch lort, 
as if it should be declai^ upon Iteconi Ibr 
ever, ihatthe lams were, that no man could ever 
he iniarged from imprisoninent that stood com- 
mitted by such an nbsslute command. 

The draught is only in sir John Hevening- 
ham*s Case, being one of the gentlemen' thnt 
was remanded, and it was made for a form for 
all the rest. The words of it are after the tisual 
entry of a Curia ntfcuarevu^C for n time; that 
' Visis retur. predict, nee non diversis antlAuia 
' reeordis in curia hie remanent, cnnsimilei 
■ casus cnntinentibus, niataraq. deliberatione, 
' inde prius babita, eo quod nulla spefialis 
' causa captionis sive detentionis prsid. Johan- 
' nis exprimiiur, sed generalitar auud detentui 
' est in prison a pned'. per speciole mandatum 
' domini regis, idea prxd'. Johannes remittitur 
' pmbt. custodi mnrr. hospitii prxd. salvo CUS- 
' todiend. ouausq. tee,' that is, ' qunusque s&- 
' cundum legem dcliberatui faerit.' And if 
that court, that is the liighest for ordinary 
justice, cannot deliver him tttundttm Ifgem; 
what law it there, I beseech you, my lords, 
that can he sought for in any other mferior 
court to deliver hiin.' Now, my lords, because 
this draught, if it were entered in the floU, (aa 
it was prepared for no other purpose) would he 
as great n declaration, contrary to the manj 
acts of parliament already cited, contrary to 
all precedents of Fbruier times, and tn alt rea- 
son of taw ; to the utter subversion of the high- 
eat liberty and right belonging to every free- 
man of this kingdom, and for that bspecialljr 
also it supposes, that divers uncient records had 
been loolied into by the court in like cases, by 
which records their jutlgments were diri'cted ; 

at all extant that with any colnur (not so much 
indeed as with any colour) warrants thejudg- 
■nent: therefore the house ofcommons tliought 
ht also, thnt 1 should, with the rest (hat hath 
been laid, shew tliis draught also to your 
lordships. 

I come now to the other kind of Precedents, 
thnt is, solemn Resolutioiit of Juriges, which 
helng nut of Record, mnaiii only in authentic 
copies: but of this kind there is but one in this 
case, that is the Resolution of alt tbe Judge* 
iu the time of q^iieen Elizabeth. It wm in Uio 
34th of her reign, when divers persons had 
been committed by absolute commnnil, and 
delivered by the Justices of the one Bench or 
the other; whereupon it was desired, that the 
Judges would declare in what cases prrton* 
oommitted by such command were to be in- 
iarged, which hath been variously cited, and 
variously apprehended. The Rouse of Com. 
Dons, therefore, desiring with all care to inform 
themselves as fully of the truth of it as possiblj 
the/ might, gut iaw thsir fatuids from a ineiubcr 



109] STATE TR1A15, 1 CaARtEs I. lM8.~iAe Libertg nftia Suhjea 



[110 



alibat lotat, ■ Book at sdMtetl «*««*, coi- 
ItcMl by a revciend aiiil learoed Chief- J UMice 
ol'tiie ComnoD-Pletu, tiiAt was one of tbem 
ilatpveibe Ktsolnfion, wUich i» eotered nt 
lute in that Book ; 1 mean [he L. C- Justice 
Aulcnoa, it ii written in the Book with liis 
mn huid, ii <l« ten, of ibe Book ib, aiid hr>w- 
wrer it hnth been cit«], and wns cited tii that 
pint Judgm^HC uion l)ie Uub^s Corpus in the 
Kiif VBeud- ' if it tmd been, that upon aucli 
commitmeati'. je Judjies might not bnil the 
FratHien; jel it is most pJain,thatiLithe Iteso- 
totioa itself uo sucb tiling is cDntuiiied, bat 
niher eipreswd the couinir;. 1 sball better 
trpmeni it to' ^our lordships b; reading it, 
ihiD bj o)>ening it. 
Then it inu cead here. (See anit, p. 76). 
If this Hesolution dothmolve nn^ thing, it 
dotb iadeed upon ibe enquiry resalve full; the 
aattv; to ibat vhich haib been pretended, 
■nd eoou|h for the maintenance of the ancient 
tad fiindamental point of J i ben j of thi.^ peiaon, 
to be regained hy Ilubeas Corpus nhcn any is 
impcisoned. And I the ralhef thought it fit 
Mir to Kad it lo jour lordships, that it mi^lit 
be at Urge heard ; because in die grent Jud^- 
Bfflt in tlK KingVBenCh, though it was ciied 
ittht Bar, ns against this pobt of persona] 
tbenj, Rs nbo at the Bench, yet tliou);b everr 
Ilnag elte of record lliat was U'cd, were at 
hi^e read openlir, this was not fend either at 
Ur or bench: for indeed if it hnd, ever^ 
kuer would easily have known the force of il 
utuRe been indeed contrary to the Judiment. 
Uy lordl, hating thus gone throuEh ihe 
Auffi committed to me liy tlie house of com- 
um>, ind havinc thus mentioned to your tord- 
*ip», and opened the many Precedents of Re- 
conii, aad that Ehaoght of the Juilgment in 
thii like case, as also this Resolution; 1 bhall 
to* (te I had leave and direction given me, 
bkyoor lonlkhip* ihoiild be put to much trou- 
ble aud expence of time in finding or setting 
copiet at iw^e of thme things which I hare 
cAtd) offer also to your lordships authentic 
o^^ of thera all, and so leave tliem, and 
wlijtioeTer else I have toid, lo your lordihips 
(nitber canaideruion. 

tltlnu Copy <>f the PraedaUt 1^ Record. 
Inter Record. Dom. R^ia Ciroli in Tbesauro 
Bccept. Scocmrii (ui sub custodin Dom.l'he- 
Huimr. et Camerar. ibidem remanen. 'iz. 
Plmta coram Domino Rege Bpitd Westi 
nasL da Ter' Paache anno Ki " ~ ' 
)Kat cooqueM. Anglic 18. 
li/ietar ot sequitur. 

Rdi. 33. Adhuc de termino Pasch. 
Domiiius Rex mnndavit dilecto et fideli^uo 
Koberto de Dalton consubular* Turns (uk 
IwHan velejiul'icum tenent' bre. suum in hiec 
*irba: Edwnntus D^ gratia rex Anglis, Fran- 
a«,et domiuus Hil>erni» dilecW et tideli suo 
Kobenodc Dalton coustabulHr'Tuiriisua! Loa- 
te let ejus locum tenenc salutem. Mandn- 
■n quod Jobaanem Bildeuon capeHan' qoera 
^ BMtr. Lo^Joo ad OMMlalum nostrum apod 



Kegi Edwardi 3. 



preit. Turrim vobis libera vit ab eisdem rcdpiatis 
et io prisoua nostra Turria London pred. salvo 
custodir* fee" qnouMfue aliud super hoc daxeri- 
nnu demandand. teste meipso apud Turrim no»' 
tmm London 30 die Marlii anno regni nouii 
AiigliEE 16. regni vero nostri Fvdc>« 30. £t 
modo scilt. in Craat. Ascen. Dom. anno regl* 
nunc 8. coram domino rege apud Westminit, 
venit Johannes de Wjnwick locum teneiis pred. 
coiistab^'^- et adduxit cnmm Justiciar' hie Id 
cur. pred. Johannem de Bitdestim qnem ille a 
pref«t. vicpcomil. virtute brevis pred. recepit. 
&c. £t dicit quod ipie a dom'muTrge babuil 
mandat. ducend. et Iibrrand. corpus ipsius Jo- 
hunnis de BildeMou prefiit. justiciar, hie, &c. 
X.I qaesitnm est de pred. Johaiine de Wynwick 
si quam nliam detentiunis prefat. Johatinis de 
Bildesion habeat enotam. Qui dicit quod noa 
nisi bre. pred. tantum. El quia videtur cur> 
bre. pred. suScien. non esse predict. Johunnis 
de.Bildesion prisun. Marr' regis hie retincn. && 
Idem Johannes dimiititur per innnus Willielm, 
de Wnkefield recloris erde. de W illiiiEham, Jo- 
hannia de Wynwick in com. Kauc. Johntinis de 
Norton in com. Norftl Nicnlnl de Bl:iiideflbrd , 
in cnm. Middt, et Ko^eri de Brnmley in com. 
StiitTord, qui euin inanucrperunt habend. euni' 
coram domino rege in nctabis Stuicii Trin. ubi- 
cuiique, &c. viz. Corpus pro corpoce, &c. Ad 
i^uas ociabis Sanct. Tnn. coram domino rege 
npud Weatm. ven. pred. pet maaut pred' El 
super hoc mandnvitjustidiir. suis hie quo<ldaia 
bre. suum claus. in luec verba, Ednardus Dei 
Ijralia rex Anittis, et Francic, et dominus Hi- 
beniiie,dilectitetfidel.sui9WillielmDS<-ot,etso- 
ciissuis justiciar' ad plncita coram nobis tfneiid. 
HSsignnt. saltern cum nuper maMdaverimiu di- 
lecio et iideli uojiro Hobtrto de Dalton consia- 
buliir' Turria anstne Loudon vel ejus locum le- 
nen. quod Johaiiueni de Uildesion capcllnnunt 
capt. et detent, in priaona Tutris pred, per pre- 
ccptom nostrum pro suspifioiie contrnmciionii 
magni aigilli nostri cum attacbiat. et aliia causi* 
c.-iption. et detentiunem pred. tanjtent. salvo et 
secur" dud fiic' coram nobis in Cnwt. Aacen. 
Dom. ubicunqne tunc fuisiemna in AiiglLapri- 
■onz Marescuil. nostr. coram nobis liberantf, id 
eadem auousque per quendam iufbrmatorem ea- 
semUs plenius informal, cuitod. et tuta iude in- 
fin^natione pred. ulterius pred. super hoc fieri 
fecerimusquod fore viderimus faciei id. secundum 
legem, et cnnsneludinem regni nostri Alalia, 
nos in casu quod dictus infonnator iMn Ten. co- 
ram nobis ad inforraand. nus plenius super pre- 
miss. Tolentes eadem Jobannem ea de causa 
justiciar' deferra in hac pane vobis mandomiu 
quod si pred. informetorin quinden. Sanct. Tiia. 
proi. futur. tel circa non venit super hoc ple- 
nius ioformat. tunc adveut. nusdem infonnator 
it luiuime expectat. eidem Johanni super hoo 
fieri (ac. justie. complement, prout f'lre videriti* 
taciend. secundum legem et consiietudinera 
refini nostri Anglrge, teste nieipso apud Weat- 
mintt. 13 Mail anan regni nostri Anglic 18. 
Recni vero nostri Frutc' quinto. Quo qilidein 
bre, respect, fact, est proclamuio qund siquii 
dictum regem adper preniisi. infonaare rd crga 



Hi] STATETEIAIS, 3 Cbablbi I. HKli.-fPnctediitgiiHVarUaiiatiTat^gi6 [113 

■niDm Jobannnti prosaqui volaerlt, qaod veniaL 
£c saperhocrenitpred. W.ds Wakefidd,NU 
chnla) de Wandsworth, Jo, Bryowjii, Jo, -de 
Longiurai, Jo. de Norton, ec Rdgerus lie Bromley 
oibbcb' de com' Midd' et man' pred. Jobanneni 
de BiMeaton hnbcnd. com coram domiiio rege 
de die in diem tisqae ad prefat' qninden. Saact. 
Trin. ubicvniiae, be. Adquein diem anno IB. 
toTMn dmiiinu leg^ apud Wtttminst, venit pred. 
Johannes dc Bildeston per nmnlia pred. et ite- 
rata facts eat proclam. in faroiR qua superiiu, 
&c. et nuUas veoit nd dictum regetn informand' 
&c. per qood concess. e« quod pred. Johannes 
de Bildestop eat inde liiie die lolva Kinper itc- 
lione dom.Tc^i li qua, &c. 
De Ter' Sanct. Hillar' anno 32 B. S, et per 
. cont. Rot. ejuidem Rolul. 31. 

Johannet PHrker per Ricarduin Cboppia, et 
■ W. Douosey vie' London Tirlute bievis doni. 
regis de Intitat, pro pace versus ipsumjohannem 
Parker ad sect. Johannis Bruton ds inde direct, 
et coram rege duct, cum causa, \'u. quod idem 
Johannes Piirker Cspt. fuil in civitaCe pred. pro 
tiecu' pBcis pred. et pi;p susprcione feliinis per 
ipsum apudCroiveall in com. Glocest. perpetraC. 
per noinen Johannig Porker de Thdrubuij in 
com. Glocest. corser, alias diet. Johaii. CImrbs 
de eHdem com' su^enn, ac per niandaium dom. 
r^ nunciat' per Kubertum Peck gen' de Clif- 
fbrdi'Inn, qui committitur Mnrr" &c. et postea 
■9te enrlem termino trnditur in Ballluu Thomz 
Atkins de Thornburj pred. weaver, et Willi. 
Note de eadem villa et dum, usque a die Pasche 
■D unum men. neavcr ubiciioque, ftc. Et quod 
idem Johauiiis Parker citra eundeui' diem per- 
'•nnaliter compnruit coram justiciar' dom. regis 
ad prox. general. GhoI Delilieratiou' in com. 
Glocefr. prm. leoend. ad suhjiriend, et recipi- 
end. en u inn ia, ei: singula qiix prefaL justiciar' 
de eo tunc ordinare coiitigerint, &c. viz. Corpus 
pro corpiirc, &c. Ad quein diem pred. Johnn- 
ois fnrker licet ipsi 4. plant, solemniter exact. 
ad coinp:irend. non veil, ideo caperet eum pier' 
Trill, ad nuein diem ex octnb. IViit. postea 
Trin. 31 H. 8, ex Crant. quindcn. I'lische. Ad 
quem diepa hre ' et vie' return' quod ad IIusi. 
t^nt. apud Lundon. die Lone proK* pout fest. 
Sancle Suholnitice nftno regis H. 8, 25. Joiiaii- 
nw Parker, et W. Nole ut!" Tuer. prnut palet 
per bre. regis de Ter' Pasche anno '25. Ks.' pred. 
De Ter. SancL Mirh. anno 33 H. 8,et per coat, 
ejusdem Rot. 33. 

Johaniietn Biii'cks per Eto. Baker nr. seneseall, 
cur. Uarr, et Radum Haptou Mar'ejuidem cur. 
virtute brevis d<im. regis de HiUieas Corpus nd 
sabjiciend. et recipiend. Sec. eia inde direct. 
coram dumino rege duct' ciun causa, viz. quod 
ante adventum brevis pred. JohBOnes Bjiicks 
cifHus fuit per mandatuin privati conialii dom. 
regis pro sutplcinnc telonls, e[ pro aliis cansis 
ilius. movent, a due' ad giiol. Murr. et ibidem 
detent, virtute gaol' pred. qui conitnittitar Marr. 
&c. Et immediate ex gra' cur. special' pred. 
Johannes Blocks ds Mat^na Mnrlow in com. 
Buck, weaver traditur in Ball. Tboma Signam 
lUiioiidoneent. « Jobai>i)iWoOd<raTd deMar' 



pnd. ta*lor, tuque in cratt. Sanct. Martin. - 
ubicanqnF,&C. nine pleg. corpiu pro corpore, 
Sec. Ad qoein diem comperuit et Robectos 
Dmrj nr* et JohannesBorae gen. domino jua- 
' dom regis ad patxm iu com' Buck, virtute 
s dom. regis eis direct, domino re^ certi- 
ficaverunt quod nullum indictameiitum de ali- 
quibos feloniis et transg. versus ipsum Joliannem 
Byncks coram eis ad preieiiB resident. El ul- 
terins de lama et gestu ipsiuS JohaDnh Byncki 
er Sdcram. proborum et l^allum boniin. com. 
lack, ditigenter inqniri fecerunt, et nihil aliiid 
reter bonom de eo coram eis est compertum. 
jeo cooc^s. est quod pred. Jo. Bjncks de pre- 
lissif eat inde line die ddibcratur per proda- 
lationem et jur. prouc moris eit. 
De Ter. Pas. anno 3 et 3 Ph. et Mar. Rot, 56. 
Ricardut Overton nuper de London gen. per 
Tlio. Leigh, et Joljanuem Maciiell tic' London 
virtute brevis dom. regis et regine da Uabeas 
Corpus ad slnad. ,rect, &c. eia inde direct, co- 
ram Willielmo Portinan mil' capital. Uuticiar. 
&c. duct, cum causa, viz. quod pred. Uicardus 
Overton 9. die Octobr. ult. preter comniist. fnit 
prison.de Newgate, et ibidem in eadem priton« 
sub custod. diet. vie. deieot. ad nundatum per- 
nobiliuto duorum boDorabilis coQcil. pred. rr- 
gis et regine qui committit. Mair. &c. et im- 
mediate traditur in Ball. Willielmo Overton d« 
London f;en. et Johanni Tayler de porocliia 
Sanct. Martini apiid Ludgnte London mere, 
uii^e octab. Trin. viz. uierque maoucaptor. 
pred. corpus pro carpure et pottea Tr. S. £1. 
reiiin*, corpus OvercoD et pleg. suos ocialus 
Michael, ad quem diem ci mens. Pasch. aij 

Stem diem vie. reti quod ad Hust. sutim tent. 
uildhnll civicatis London die Lunn post f^ 
turn Sanct. Gregor.epi.pred. W. Overtoo uil' 
est el per bre. Pas. anno suprad. 
Da Ter. Sanct. Mich, anno 9 et 3 P. et Mar. 
Bot. 16. habet Chart. altocuL Trio. 9«t 9 
Phil, et M. 
Ricardus Overton noperdeLood.'gen, cnpt. 
octab. Hill, pro quihusdam aids prudic. and« 
indictat. est, ad quem diem Pasc. ad queid 
diem ex Or. Animaram, 

De Termino Pasch. 4 et 5 P. et Mar. et per 
cont. ejusdem Rot. 45. 
Edwardus Newport gen. per Robenuro Ox- 
enbrid^e ndl' consiabular* Turris pred. virtute 
bre. dominor. reftis et regino de Habeas Cor- 
pus ad subjiciend. &c. ei inde direct, ad Barr. 
coram domioo rege et regina ditct. cutn causa, 
viz. quod ipse aibi commiss. fuit per mnndat. 
conciiil domine reginis, qui committitur Marr. 
et immediate traditur in Ball, prout, &i;. Kfc 
postea sine die pv proclamation, virlulc brevis 
de gestu ct fuma prout, Sic, Ilot. 17. ^usdeu 

De Ter. Mich, anno 4 et 5 P. et Mnr, per 
Cont. ejusdem RotuI, II. 
Memorajid. quod 141 die Uctobr. anno 4 et 
5 PhiL et Mar. Edwan^uB Newport de Hanley 
in coin. VVigorn. nc capt. fait per Uxhridge in' 
com. pred, pro stupiciuBecmntia fMtionis i]ua-' 



113] STATE TRIALS, 3 Chablis L l628.-.-rie Liberty qfihe &V«i 



[114 



nuKlem p«c. tati vocac French crowDs, per 
ipum it ilibi ia coin. Wigor. fier. luppoEit. et 
n de causa per mandatum coucil' dominor. 
itffl et rfgins commiu, ad barr. tunc ducC 
fiW, noi coinmirtilur Marr. &c. et super hoc 
idem Edwardiu Newport tradilur in ball. IIid- 
ax Charge de Lattoo in can. Essex jjener' Ed- 
nanlo H^ei de porncbia Saacti Oluvi, London, 

S. JolnnDi Baker, clerico ordinar. London, 
unl Gillde pmnchia Sand. Tho. Aposioli 
LondoD, clotb-worker, et Richardo Parks de 
BmsTUfiraTe in can. Wieurn. yeOiOBii, uique 
Mtihis mil. ubicunque, &tc. v'a, ((uililil. pl^. 
]iracEd. sub pcena 100/. et pred. Edwnrdui sub 
pan* 2D0f. quas, &c Ad queiii diem compe- 
nit et cominittitur conslnbular. Turris Lon- 
■tonper mandutum coDcil. dam. regis et reej- 
ix ibid, lalvo custodieod. quouuue, &c. Et 
postea Pas. 4 et 5 P. «t M. imditur in ball, 
prant paiet per tcrivect. finijm ittius ter. et 
pom M. 5 et 6 P. et M, etonciat. per cur. 
nqood tam per sac ram. 12 prober, et l^a- 
Siua bominuin dc pred. com. Midd. coram 
ioiB. rege et domina regina hie in cur. mea 
partejurat, el oneral. quam per sacrament. 12 
prabor. legal homiD, depred. com. Wigor, co- 
ram Edwardo Sannden, et Johanne Whiddon 
Bill, et alii» justiciar' dictor' 'dom. regis et i^i- 
Dx ad pacem ac de diversis felooiis transgress, 
ctkliismalefact.in eodetn com* perpeCrat. audi- 
tai. et termiaand. ossignat. virtutc breris dic- 
tor. dominor, re^s et reginz eis inde direct. 
n ea parte jurat, et onerat. ad inquirend. de 
|cstn et fama ipsius Edwordi compert. eiistit 
quod idein Edwardus est de booii gestu et fuma, 
)dra procUmatio est inde facta prout morii est 
KCDDd. legem et conjuetudinem reg, Angliie, 
&c coDcess. est. qnod pred. Edwardus eat inde 
CM die. 

De Ter. Pas. 9. El. Rat. 33. 
Tbo. Lawrence per Christopher' Drap. roajo- 
rem cmtatis London' Ambrosiuot Nicnolas et 
Bica' Lambert tic ejusdem dvitatis virtute 
brerisdom. regins* de Habeas Corpus, Sec. eii 
iude direct, et coram donuna regii\a diet, cum 
csDia, viz. quod 7 die Novembr. onno r^ni 
. dom. EL nunc r^ins Anglix 8, pred, Thomas 
iUiiTeiice indicto brevi nominat. captus fuit in 
ciritate pred. et in (irisona dotn. regime tub 
cmtod. pred. coram ric. detent, per mandatum 
rancit' dom. region qui committrtur Marr. &c. 
et soper lioc crndit. in ball* prout patet per 
tcfiftct. finiom istius ler. 

De Ter. Pasch. 9 El. Roc. 68. 
Sobertus Constable Ar* per Franciscum Job- 
un mil' locum tenend. Turris London virtute 
breris dom: regini* de Habeas Corpus ei inde 
<fiRct.et coram domina rei^nadlct, cum caiua, 
yk. quod idem Robertas Constable prefal. 
Franctsco Johson commissus fuit per mands- 
tani priTSL concil' dom. regins s.-ilvo cuslodi- 
nd. qui commiltitur Marr. Stc. et postea isto 
•Ddeia ter. traditur in bnlL prout paiet inter 
•nirect. Rnium istius ter. 
Tr. Fas. anno SO EL et per conC. ^usdem 

Hot. ea. 

Jobaooei 8toitDiD( per Onei^.Uopion mil' 

YOU 111. ■■ 



locum teneo' Turris domina re^nx London vii^ 
luie brcvis Hubeus Cor^ius ud subjiciend. ^ 
inde direct, et conun diltcto et Adeli Ch. Wraj 
mil. capit. Justiciar, doui. regiuie ad placita 
coram nobis tenend. assignat. apud ho^pitlum 
suum in Serjeams-Inn Eleet-street London' die 
Lunx, viz. 13 die Mnii duct, cum caasa'vii. 
quod^pred, Johamies Browning commissus fuit 
eidem locum tenend. per mandatum prlvuti 
concir reginx salvo cuatodiend. &c. qui corn, 
MaiT. &c. et postea isio eodeni ter. Imditur in 
ball' prout par. per scrivect. fiuium istius ter, 
De Ter.. Sanct. Hilkr. anno 40 El Regintt et 
per cunt, ejusilem Rot. 69. 
^ Ednardus Hareconit par Hugonem Parlour 
cusCod. prisons domiim: reginie de Gaiehoute 
infra civitatem Westminst. in com. Middl. lir- 
lute breris dominn regine de Habeas Corp"* 
ad subjiciend. &c. ei inde direct, el cornm do- 
mina regina apud Weslminst. dicta cum causa, 
til. quod ante adrent. hrevis pred. sell, 7. die 
Octobr. an. regiii dom. regin. nunc 39, corpu* 
Edw. Hareeourt, per duos pri«at. concii. dicta 
duminie reginc ei commi&s. fuit salro ct secure 
cQStodiend. certis de causii ipsos movent, et ei 
ignotis, qui commitlitur Marr. £tc. et postea 
isto eodem ter. traditur in ball, prout patet pet 
scrivect. linium istius (ennini. 

De VacnlioQC Hillar. anno 43 Et. 
Robertus Cntesbie per Jobannem Pbilipi 
guardian' de le Fleet virtule breris dominie re- 
ginz de Habeas Car|ju9, ad subjiciend. Sec. a 
inde direct, et coram Edwardo Fenner uno jus- 
ticiar. duminE reginx ad placita coram ipsa 
region teneud, auigiiai. apod Wincbesier-house 
in b»r^ dc Souibwark in com, Surr. diet, cum 
causa, viz, quod pred. Robertus commissus fiiit 
prisona pred. pnmo die Martii anno 4S £1. 
War. diverw>rum prvnubilium virorum de pri- 
vato coDcitio domina regina in bac verba: 

■ To tbe WartUn of (he I'leet, or his deputj : 

■ The*e shall be to will and require you, to re- 
' cave at tbe bands of the Keeper of tbe 
' Compter of Wood-street, tie person of Itobert 
.' Catesble, esq, and him to detain, and .lieep 
' safely in that prison under your cbar^e, untJ 
' you sbolt bave other direction to the contrary, 
' wliereof this iball be your warrant.' — Et pro- 
fat. Robertus commissus fuit Marr. per prefat. 
Edivardum Fenner, et «iatun traditur in ball' 
proat patet, &c. 

43 Elii. Regina 19 Jac. Recis. 



cnstod. prisona de Gatshouse in com. Jaidd. 
virtuie brevis dom. regis de Habeas Corpus ad 
subjiciend: ei inde direct, et ooram domino leg^ 
duct, cum causa, viz, qu.id ante advent, brevis 
predict, scilicet 10 die JuLii anno regnidum, 
Jac. regisDfigratiaAiiglia, Franc, et lli1i«mi« 
fidei defenMir, ftc. 11 et Scot. 47 predict, Ri- 
cardus Beckwith aibi commisaus fuit prisonv 
predict, sub cubtod. sua linute'cjjusdrro war- 
rant, sibi fact, et direct, per Georgium diviua 
proviilemiii Cant, .archiepiscopum lotius An- 
glic primal, tc meiropuliiun. Uenric. com, 
Norlltemptoa domiuum guardiaa. 5 portuum 



De Ter. Micb. 
Thomiu Mou 



115] STATE TKIAI5, S Chables I. i02S.—Prwxeding» m Porhanan relating to [llfi 

et iin. de privato coticil. ro|l), Tho. com. Sof- 
fulk dnm. camentr' re^ix familia ac sacr' cun- 
cil. dom. reKii tjiwnrdum dumini Wooton gu- 
bcrnnior regis familiie, Jobanncm dom. Stan- 
hfipe tice-camerar' regi* famitiiB ; rujus war- 
rant sequjlur in li«c»erhn! ' To AquilaWytes, 

• Kec|iL-r of the Gatehouse in Weslrainfcter, or 
■ his deputy: Wherca* it is Ihought meet that 
' ftlilfs Rayner and Rjchard Beckwirh he re- 
' sirnined of their liberty, and coiamittM] to (he 

• prison nf ihc Gatehouse ; These ihail be to 
' will and require you to receive the persous of 

• tiie snid Rayner and Beckwitb into your 

• charge and, sals keepioK <■> 'l^at prison, there 
' to Kmain tititil you bholl have fiircher order 

• [raoi OS in that behalf, for wluch this shall bo 
' your warrant. Dated at Wliiiehtdl the 10th 

• of July, leiS.'— lit poueaistocoden) temiino. 

. 14 Jac. per cont, ejusd. 

Rat. l-ir. 

1 miles per Georgtuia More 
locum t«ueut' lurris dom. rc^is Loodon' rir- 
(ute breiis dom. regis de Habeas Corpui ad 
•ubjicieud. &c. ei inde diract. coram tlomiiio 
reg« apud West. duct, cum cauHn, viz. quod 
«nte adventuDi brevis predict. Tbonua ribi 
comoiiitus filit per warrant, adveis. dominis de 
privslo concilio regis sibi direct. &c. Qui com- 
iniiiitur Marr. &c. et super hoc tmdiiur in ball' 
prout pater per scritect. Ha. isiiui termini. 

De Ter. Hich. 7 II. 7- et per c«Bt. ejiudcm 
Hot. 6. 

Tho. Bragg junior, nuper de Ynningiton in 
com' Hertford gen', Johannes Rswleus Duper 
tie Lenister in com' prLiI* yeoman, Uob, tiheP' 
man nuper de Lemster in com. predict. VVaher 
Thomas nnper de eadem in cots' predict, bcp- 
•Itr, Tho. Bullard nuper dc e«u)em in eoduni 
coai. smith, Cadwallader up John DuV nuper 
de Kerry in Harchia Wnlliie in com, Salop ad- 
jacen. ffia. Hej-iViald ap Breingham, alias Slter- 
fnnn, nuper de Lemper in com, Hereford Slier- 
man, et 'Ihomas Turner nuper de Kingsland in 
com. Ilerflbrd cmirMr, sant in custod, Marr. 
ad malidatum dom. regi«, &c. ac pro aliit certfs 
de eauiis prout patet alibi de record. Sic. per 
record, istius ter. postca isto lermin, doininus 
relaxavit inandatum suum « proiecut. predict, 
Comparuerint per attorn. &o. Et quod utlag. 
versus prefHC. Thoiiiam Bnjgg r«vocatur iiio 
termiiio et predict. Johannes LUnleu* pro felon. 
et murdro predict, traditur iu ball' prout patet 
•lihi, &c. ideo hie Marr. de ejus curpore per 
cur. esoneratur, &c. 

Ter. Hitlar. 7 II. T. et per cant, ejutdem 
Rot, 18. 

W. Bartholomeiv, Johannes Bartholomew, 
Wyiielmua Chnce, Henr, Carr, Tlio. Roteilev, 
Tho, -Street, Robertas Feldoue, et Hen. Bancts 
lunt in cuMod. Marr. ad cust. mandat. dom, 
regis, &c. per record, isllus termin. ac predict. 
AVilliclmos Chace pro pace Randnlplio Jowelen 
inreniciid. &c. Pasche senuen. per poscea ter- 
min. seqnen. dictus dommus rex maodaturn 
suujn predict, quoad Willietmai Cbace rcla.^- 



De Ter, Pas. 7 U. 7. et per cont. Sot. ejti*- 

Johaunes Beomond de Wedoesbury in com* 
Statr. ar* est' in cuslod. Mar" ad mandatuin 
dom. regia, Stc. per record, ialiui ter' postca 
scilicet Trin' 7 Her. 7. sequen' predict, Joban- 
nes Beumoiid de maudato pieoict. exonerUua 
exislit ideo Mar" de so per eandem cur' exotic- 

De Ter. Mich, anno 13 11. 7, Rot. 8. 
Tliomas Yewe de villa de Staff, m com' 
Stafford yeoman, per Johnnnem Shawe cl Bi- 
cariluui Haddon vie' Lon(bm virtutc bre^b 
dom, regis de Habeas Corpus, ad sect, ipsiua 
regis eis indc direct, coram rege duct, cum 
causa quod idem Thomas Yewe attachiatui 
I'uit per Bicardum Whittington seqeant apud 
BuyuarU's Castle civitatis predict, et prisouft 
dicti dom. r^ia infra eandem civitatem salvo 
cuitodiend, causa pro suspicione felcn, apud 
Coventrie in com,' War' perpetrat, ad sugges- 
tioncm WiUiebni King innholder, ac inbuper 
idem Tbo, Yewe detinelur in prisona predict, 
virtuie cujusdem alterius quercl. venua ipsum 
od sectam Johannes Frceniaa acrjcunt de eo 
quod inveniat. ei iuauflicleiid. secur. pacis ia- 

Ac ulterius idem Tho. Yene detent, est in dicta 
prisona pro 33/. debit, et ^i. 6d. dampnis ec 
custag. quoa Robertus Corbet mercer, ex co^- 
nitione ip^tis defend, versus cum recuperavit in 
eadcm cur, coram uodcm Jiihaonc Waiger 
nuper vie, Ac etikni idem llio, detinetur io 
di<la prisons ad mandatum domini regis, per 
Johannem Shawe, aldrrinan, clvitatia Loodon, 
qui committitur MaiT. &c. pn^tva scilicet ter. 
Sanct, Trill, anno 19 regis U. 7, predict. Jo- 
hannes Freeman relaxavit sccur. pacis versus 
euadeni llio. Yewe dictus';; Robertus Corbet 
cognovit ^e (am baiisfact. de debito ct dampnia 
predict. Ac Jacobus Ilubberd atiomat. gene- 
ral, dum. r^is relaiavic nanditum doai. reps, 
ac pro luspicione felonix predict, traditar in 
ball. Sjmon Little de Loudon taylor, et Jo- 
hanni A)he de Lcndon ikinner, uwjue octabis 
Mich, ubicunq; £fc. Ad qui diem coiBperuit 
et Robertus TbrugmortOD miles unui oustod. 
pacis predict, com' Warr' rtluni' ^uod DulL 
mdictament, de alimiibui felon' sivc irwiyresa. 
versus prefat. Tho. Yewe comm.eo et sociis ad 
presena reaidet, et ulter, virtute brcris dom. 
regia sibl et sociis tuis direct, per sacrament. 
IS probor, et legal, huminum ae villa de Co- 
veutry predict, de gestu et fama predict. Thome 
diligeuter inquisiiionem feceruQt, et nihil de eo 
preter bonum coram eo et sociis suis eA coin- 
pertuni led de bono gestu et (kma, ideo con- 
cess, est quod predict. Tho, eat inde tins die. 

Ter. Hillar. anno 9 H. 7, et per cont, ejnsdeni 
Rot. li. 
' Homfriddi Brocbe nuper de Canterbi^. in 
Cantabr. scholar, per Rnbertuin Willoughbi* 
tiom' Brook mil. tcntKbalLliOBpitiidoin.Trgifk 



liT] STATE TRIAI3> 3 Cuahlv I- iOas.—llie Liberty qft/ie 9ul^. 



iWi 



1 Di^bie mil. Man^ cat' Mar/* 
bo^iii predict' virtute cujusdem brevis doiu. 
n^ de HabcM Corpos ad lectaia ipriiu ragia 
■d HaaiJ. reel', &c, kd sect, partis utlog. eis 
mde dirtcL coram rej|e ditct. cum caiua viz. 
ifttoi Idem Humfridiu cooiiniisui fuit Cooi. 
Mair' botpilii doin. regis Gt bac da ojaam tf^ 
DOB alia idem Humfridu* in priiona pred. de- 
linenu', qui CQuiaiitUtur Man' &c poitea Pw. 
>qiwu' m relinijidt -mandatum suun) capital. 
jiHUciar' per Tho. Lovett mil, Mten' et pro 
•tlii|.prea. traditur in boll, proutpatet alibi. 

Pe To" Sec. Triait' anno 39 £1. et per cant. 
Rot. ejuwleiD lis. 
Lawrence Brooine prr Hu^oQCm Parlour 
cuaod. prbone domine regine de la Gatehouse, 
muu brevii domine reeiue de Habeas Corpus 
ad ubjiciend. &c. ci inde direct, et coram do- 
aiiu regina apud Westniiist' duct, ciim cauw 
Tiz. ifiod prdfict. Lawrence Uroome in arcta 
OMlad. sua remanset per mandatum duomiD 
de concilia dicte domine r^tne pro certidcautis 
«H morent' qui committitur Mist' et pnstea 
but oodeoi tcnuiao traditiu in ball, prout pa- 
tit,&c. 
PsScriTect. Fin. Ter" Scf Tnn. anno 39 El; 

Laurence Broome de Parva Baddow In com. 
pred. huabuid. tiadltnr in tmll' nd lubjiciend. 
hz. ad mnndat. prirat. concil. dornine rrgine 
igper Habeas Corpus,--- Verau 9 Rando. Mayall 
lie Hatfield Bevcrell in com' pred' gencr. ; 
Tetsus Henrico Odolt de endein gen. ; versus 
Will Eckaiden de WeMminsc' bricklayer ; ver- 
ms Elc Mor^n de Weslminsl' litbourer;— 
I'terq; sub pens 40/. rt princeps sub peim 
100 marcsrum. — Pro soipicione proditiuuis 
cniu Johaane Smith mil. 



Oe Ter' Set' Micfiaelis anno 4GI. et per cont, 
Rot.'ejusdemSr. 
Tba, Wradea per Hii^nam Parbur gea' 
otAod. prisoae domioe regme de le Gatebouie, 
virtate brevii doniina regiiie de Habeas Corpus 
ad tabjiciend. &c, ei inde direct' et coram do- 
Mina reeiaa apsd Westm* ducc cam cauia, 
•B. quod 18 die Juirii, annn regni domiTie El. 
ouc reiine Anglic 5S. corpus, &c. infra nomi- 
iMC Tlo' Wendeo extra cur' eju»lem domine 
Kpoe coram ipsa domina rcjtjna privMi con- 
cioi dom. regis cuius ceoor stquitur in hiac 
verba, scilicet; ' These are lo will aiid require 
' jou to receive into jour ciiartie and custody, 
'Ibe person of John Brocket, kiii^ijt, and liim 
' u> retain in ufe keeping under your cIibi^ 
' uatU joD shall bave furtber order for bis in- 
Msrgemenl; nbose commitoieotbein^ for some 
' special matter coDceming tike service of our 
' sovereign lord the king, you may not fail to 
'regaid this warrant occordiiiglj. From the 
' lm)!'i paUce at Whitehall, the last of Mirch, 
' Uoy Esq; fuit causa ditentionis pred. , 
JoliBDois in prirJioa pred. qui committitur | 
Msrr. &c et posEca tnditui iu ball' piout paaj 



Ter. Micb. anno 13 Jac. Hegis, Kot. 119. 

Mila Reyner per Aquilam Wykea cuitod- 
piiaone de le Gotehouie, virtute brevis dom. 
regis de Habeas Corpus ad aubjiciend, Die. co- 
ram domino rege duet, cum causa vii, quod 
ante advent, brevii pred. icilt. 10 Julti anno 
dom. 1013. pred. Milo Reyner commissus fuit 
prisons pred' et hue usq; detent, virtute ivarr' 
cujusdem fact, et direct, per Georgium archi- 

?nicopuin Capt. Henr. com, Northnmpton. 
ho. com. Sufrolk, Willielm, dom. Knollei, 
Ed ward iim dom. Wool on, et Ed>vardum dom. 
Slanhope, cujus warrniiti tenor sequitur in 
hac verba ; ' To Aqiiila Wjkes, keeper 
' of ihe Gatehouse in Westminstrr, or 111* 
' deputy : Whereus it is thought meet tbat 
' aiilt'b Rejaer and Richard Beckwith be te- 
' SI r:iintHl of tbeir liberty, and committed to the 
' prison of the Gatehouse; These shall be to 
'will and require you, lo receive the persons 
' of Reyner and Beckwith into joor charge and 
' keeping, until you simll huve further order 
' from us in that behalf, for which this shall ba 
' your sufficient narrant, dated at- WhiteliaQ, 
< tbe 10th of Jul;, 1613.' Et lisc esc causa 
dctentionis sue io prisoiKv pred. qui conimittitui 
Marr* £cc, et postea isto codeoi ter' tradiiur in 
bftir prout pMet, &o. 

Ter. Hill, 5 H. 7, et per cont. ejusdem Hot. 18. 
Hic'us Kverard nuper de Colchester in com. 
Rnei clcricus, et Itobertus Wight nuper de 
Nonvlco smith, per Ilobenum Wi|luu|;hbi« 
tail. dom. de Brooke, senescltell' hijspitii diim. 
regis, et Jnbaniien TurberviUe mil' iHarr' boa- 
pitii pred. virtute Me. de Habeas Corpus ad 
sectam ipsim regis pro qaibuidani prodiiioni- 
buB, et felon' unde indicto com. Esses indiciat 
sfflN as inde direct, coram domino r^e duct, 
cum causa, viy. quod iidem Kicnrdns Kverar't 
M Rohertns Wight comrplsg. fiier' custud. Marr. 
pred. per mandal. dom.'regis, qui ( 



Ter, Hill. 8 II. T,et per cont. qusdem Rot.l4. 

Roger Cherrie nuper dc NovaWinds'ir la 
com' pred. yeoinun, alias diet. Rn^erm Sceat- 
ries nuper de endem in eoilem oem' yeoin. per 
.Tiiban. Baker, inHJorem villEi doui. regis do 
Nova Wiiidiior in com. pred. virtute brevis 
dom. regis de llnbcn^ Corpus ad sect, ipsiut 
regis pro quibusdnm feloniis et trsn^gr. unde ia 
com. Midd. iiidictatua est sibi inde direct, co- 
ram doniioo regc duct, cum causa, vii. quod 
idem Rnger' coii<mlisus fuit guol. duifi. re^l 
infra villa pred. per mnndat. dom. regis qui 



r Mar 



&.C. 



Ter. Hill. H. 7, et per cone, ejusdem Rot. 14, 
Cbtistoph.iruK Fturtun nuper de Rochetier ia 
com' Cuutii hackneyman, per Kohertum Wil- 
loui^hbie dom- Brooke, mil* ernesdiair hnspitii 
dom. regis, et Johanneni Digbia mil' Marr. 
cur. Uarr. hospitii pred. per loandaiaiii don. 
regis. Et live est cau» et udd aln, q«L con- 
nuttitur Uarr. &c,' 



119] STATE TMAI^, 3 Cham.es I. ]fHS.—ProceedmgiinParlua)eniTdatiagto [liO 



Ter. Pas. «nno 19 H. T, el per cont. rjusdem 
Roc. 83. 
Georfius Ureewicke de Loadnn, merwr, per 
Oiiverum Wood locutn tenen. ^risone dam. re- 
gis de le Fleet, viicuie brevis dom. regis de 
consen'and. diem, &c. ei inde direct, coram 
rege duct, cum causa, viz. quad tdim Gcorgius, 
' 13 Mail, annu 19, regis commissus fuit prisone 
de le fleet, per mandntum ipsius dim. regis 
salvo cuatodieud. sub pena 40/. qui committilur 
Mart. tic. 
Ter. Trin. aono 8 H, 8, per cont. ejusdem 

Hot. 33. 

Edwardut Page noper de -London, gent, ^er 
Georgium com. Snlopix senescball. hospitii 
dom. regis et Henricum Shnmbumc Marr. cur. 
Mar. luMpitJi pred. virtute brevis dom. regis de 
Habeas Corpus, ad sect, ipsius re°is Bit con- 
aervand. dleoi, &c. eis indo direct, et coram 
rege duct, cum cajsa, viz. quad idem Edivardus 
captus et detentiis in prisana regis Marr. pred. 
per maodatum dom, regis ibidem salvo custo- 
diend. &c. qui committitur Marr. bospitii docn. 
regiv 

Ter. Micb. anna 8 Jac. et per coni. guidem 
Hot. 99. 

Tho. Cesar per Ttio. Vavasour mil' Mar. 
boipitii dom. regis et Mnn*. ejusdem liospilii 
dom. regis, virtule breris domini regis de Ha- 
beai Corpus ad subjicieud. &c. ei inde direct, 
et coram rege spud Westiuiiist. ituci. cum 
causD, viz. quod ante adventum brevis pred. 
sell. 18 Julii anno regni dicti doni. reKis nunc 
Anglii, &c. 7. Tho Ctesar, io brevi fuit pred. 
DoaiioBt, captusapud Wiiilehnll in com' Middl. 
per speciale maiidatum dom. regis ac per eun- 
dem regem ndtuiic et ibidem commiss. fuit 
prison. Marr. ibidem salvo custodiend, quous^; 
&c. Et ea fuit causn cnptionis et deteiitionis 
^usdem Tho. Cziar, qui commitlitur prisana 
Marr. predi 

Ter. Sancti Micb. 8 Jac. Regis. 

Nisi pred. seneschal!, et Marr, bospitii dom. 
regis iuiiicieiiter reiurn' bre. de Habeis Corpus, 
Tho. Cesar die Mercur. per quinden. Saiict, 
Marliui defeodens eiunerabitur. 

Ter. liill. IS Jac. Rot. 153. 

Jacoba* Denaislres, Edwardns Emerson, 
Geoigius Brookcshall et W. ^ephens, per 
Tho, Vavasour mil' Marr. Marr. hospitii regis 
viilute bre. dom, regis de Habeas Corpus ad 
Mibjiciend. inc. ci inde direct, coram domino 
r^e Bpud Westminst. duct, cum causn, viz, 
quod ante Hdvemuni brevis pred. scilt, 99 Ja- 
nuar. auuo regis Jacobi Anglis, Sic. IS, et 
Scot. 4, pred. Jacobna Deinaistres, Edwardus 
Emerson, Georeius Braokesball, et W, Ste- 
phen* in brevi huic schedul' annex, nominal, 
commiss. fber' gaol' Marr. hospitii dom. regit, 
pro causis ipsum regem et servic' sniim langen. 
<t concemen. Et hac est cnusa caplionis 
pred. Jacobi, Edwardi, Georgii et Willielii 
poMM ituncilHUi remitUCur pr*rtt. Mlrr. ho»- 



Ter. Hill. 19 Jac. Rf^ 
Samuel Saltonstall miles per Johannem Wil- 
kiason arm' guard, de le Fleet, virtute hrecis 
dom. regis de Habeas Corpus ad subjiciend, 
&c. ei inde direct, et coram domino rege ipnd 
Westminst. dnct. cum cause, vii, quod pred. 
Samuel commiss. liiil prisoiw pred, 11 Manii. 
1608, per warrant, a duminis de privaio conci- 
lia dom. regis et quod detentut tiiil etiam idem 
Samuel in prisona )ired. virtute cuJDsdem ordi- 
I cur. Can' dom, regit fact, cujus ordini* 
r pBtet per rot, record, istius termini ad 
quem diem pred. Samuel remittitur prison* 
pred, Et secundus dies pros, ler' datus est 
guardian, prieoue pred. aa emendand. remm. 
sutim sufficien, Bup«' pred. bre. de Hibeu 
Carpus, el quod (nncinlulerit hicin cor* corpus 
pred. Samuel Saltonstalt mil'. Ad quem qui- 
dem diem prefat. guardian, prisons pred. saper 
pred. bre, de Habeas Corpus retom. quod 
pred. Samuel commissus fuit prisonz pred, 11 
die Mariii, 1608, per warrant, a dom. de pi- 
vac' concil. dicti dom. regis apod Wbitdiall 
tunc seden. et quod poslea 11 die Febr. 16II^ 
commiss. fijit eitra cur. Cane, dom. regis apod 
WestminsL prt> contemptu suo eidem cnr. 
illat. Et quod detent, fiut eiiom idem Samusl 
io prisona pred, per mandat. dom. cancellar' 
Augiise super quo pred. Samuel iterum remitli- 
tur prisons pred. et ulterius die^ dat, est pre- 
tat, guardian, nd emendand. retom, suum inper 
Habeas Corpus ver, defend, prout stare voluit 
uaq; diem Jovis prux' Mens. Pasch. Et tunc 
nd habend, corpus, &c. Ad quaov diem pre- 
Ut, guardian, intuht corpus bic in cur' et re- 
turn* super Habeas Corpus quod pied. Samuel 
commiM. fiiit prisone pred. 11 die Martii, 
1608, rirtiite cujusdem wHmrnti a dominis de 
privato f^ncir dom. regis tunc seden. apud 
Wliitehall, el quod ciiam idem Sam. commiss. 
fuit prisontB 11 Febr. anno r^it Jac. 8, pa 
cur. Cane. dam. regis apud WtstminsL tunc 
eiisten, pro quadain contempt, per eMidem 
Samuel eidem cur. ill^. et perpeirat. proiiide 
salvo custodiend. qui remittitur priionc pred- 



Samuel Saltenstall miles per JohaDnem Wil- 
kinson guardian, prisons de le Fleet, virtute 
brevis dom. regis de Habeas Corpus ad subji- 
ciend. et recipiend, &c. ei inde direct, et corain 
domino rege apud Westrabst, duct, cum ciiusa, 
viz, quod pred, Samuel Salconstail commissus 
fjiit nrisonii pred. 19 die Martii anno regis 
JaxKD, Anglie, &c, seito, virtute cujusdsm 
warrant, a domiois de privat. concilia dom. 
regis tnnc seden. apud Whiiehnll cnmrniuus 
tiiit etiam idem Samuel Salutnitall niles P"- 
sonn pred. IS die Febr, anno ]G10, et anno 
r^. Jac. Angliie, &c. 8, per cnnsiderat. cur. 
Caneell' dicti dom. regis apud Wealminst. pro 
contmipt, eidem cur. sdtunc per pred. Samuel 
itiat. ibidem proi lid. salvo custodiend, Et lieC 
sunt cauas captionis et delentionis pred. Ssm. 
Saltonstall mil. in prisona; pred, ciyus taowi 



121] STAra TRIALS, 3 Chailej I. 162S.— the Liberty qf the Su^ect. (IM 

nqdoiil diem et tocnni infra conleDt. paral. 

bMO prouc mihi precipicur. 

TntConts^tkeRu:atiOs not frialtfl, which 
were mid by nV K^ard littUloa. 

bierRcconl. Domini RMiaCaroli in Thesaur. 

Rccept. Scacorii toi sub cuitodia Tbesaurar. 

ct Cunerar. iludeiu remanent, viz. Pi. coram 

ipso Domi^io Hrge, et Concilia suo, ad Pai^ 
.liameotam suum ^st Pasch. apud Londoa 

in Maner' Arch-F.piscopi Ebor*, anao Regni 

Domini Regis Ed. S. SI. Inter alia sic cod- 

dnelur at lequitur. Rot. 3. indono. 

Stephanui Rabaz Ticecom^ Leic. et Wan*. 
tsnun ipso rtomina rege et ejus concilio arena- 
M M u ntioacni poutus ite hoc quod cum J. 
B. E. H. & W. H. nuper baUiT- iptiui rice- 
ccmitii |)er dom. regein fuisunt assign' ad 
jidIm damiai regis deliberand, eidem ric' 
qooidam W. P. per quendam appdlaiorem 
UK adieDtam eorum jnaticiarioram ibidem ap- 
fdtat et capt. vivente ipso appellitore usque 
diem driiberalionij coram eis tact, demiss, per 
pleiium coiTtra tbrmam itaiati, 8tc. Et etiam 
^ndam R. de C. qui de morte hominis judi- 
cata) fuit, et per eundem vicecomit' capiat, 
itan R. line ferris coram ciwieni julliciaV' ad 
Mi be ratio nem prad'produxit contra consuetu- 
liiiMm regni, et similiter quendam Walterum 
ilimD Walccri le Persone qui per pneceptum 
NtDttii Warwici captas fait, dimisit per pletiatn 
coDlra Tocem et preceptum domini regis ; cum 
idem dnmiaui rex per literas sun? sub privato 
Hfillo ma cidem vicecomit. precipice quod nulli 
pa preceptum pred. cam. Warwici cept. ali- 
ijoiDt graUam vel favorem &c. 8:c. Et super 
Wprefat. J. B. qui p'resens est, et qui fuit pri- 
BiBs justiciar, pred premisi. recordatur et pred. 
ncecunci dicit quoad pred. W. P. ipse nun- 
qoun a tempore captionis ipsios W. per pr*d. 
•ppelLuurem demiss. luit per plciiom aliquam 
ulaailvent, pred. justiciar. Imodicitquodper 
dimid. anni ante edventnm eorum justiciar, 
taptot fuiL Et quoad pred. R. bene cogorra- 
titquod ipse dimiait cum per plenam, et boc 
bene fic«re potuit mCione ac authoritale officii 
*a, eo quod captas fuit pro qundaqn aimplici 
lnns|[reasione, ct non vn aliqoa fetnnia, pro 
qsa rrptqtiari non potoit. £t quoad S. viz. W. 
nliam PeraoDe bene cognoscit quod ipse captus 
fliil|iei preceptum preo. com. Wanvici et quod 
dnusit com per pleiiam. Sed dicit quod buc 
fcot ad ro^atuffi quorundam de btniDitio el 
nria dian. regis, qoi eum specialiterinde rD|[>- 
•mat pta- literas auBs. Et super boc idem vice- 
Ma. quMivit per dooi. regem qois eum ronavit, 
tt literas niaa ei direiit, et ubi literK ilia sunt, 
tta. qoqd Walterni de Languin earn per literas 
>ai9 inde ragavit, ted dicit quod litere ills sunt 
ii partihus luia Leic. Et super hoc idem vice- 
emiM profert bre. djm. itps de privato sigillo 
idem nc. direct, ifuod testatur qaod dommus 
m cidem vie. precipit, qaod omnes illos iraas, 
contn pacem et de quibus comes Warrtici ei 
•ore ftcit, caperet, et salvo custodir. absque 
■iitpairMiaeiihcictnla. Et qniaprcd.jujti- 



ciat' eipresse recordat. quod ipii et tocii itii per 
bonam ettcg^em tnquisiilianem de militibus et 
aliis coiumunibua carain eis fact, inveaernnt 
quod pred. W. de Petling dimiuus fuit per ple- 
viam per magnum icinpus note odvenium eo- 
rundein jo&tic. usq; adventum eorundem et per 
vir. pred. Et etiam quia pred. vie. cognoscit 
quod pred. R. ilimiMus fliit per pleviom per ip< 
sum vie. el hoc die. quod bene facere potuit, eo 
quod captus fuit ^ro levi tran stress ion. et per 
record, ejusdein justiciar, compert. e^t qaod 
captus fait pro morte hominis quod est contrar. 
diet. pred. vicecoiit. et umiliter quod idem vice- 
corn. cogDorit, quod recepit literaui doin. Tfpa 
per qaam Xfx ei precepit, quod uullam gratiam 
fecerit illis qui capt. fucr. per precepL pred- 
com. et idsm vicecomea contra preceptum illad - 
diuiisit pred. Williclmurn filiura Walteri per 
pleviam <fu captus Hiit per preceptum pred. 
comitjs prout ioem vicecomes fatetur. Et sic 
tam ratione ipsius lran«gr. quain alianim predi 
incidit in penam ttat. coos, est quod pred. 
vicecomes cnmqiitiatDr prisome juxia formam 
statu ti, kc. . 

Ei Rot. farliamenti de anno 35 Regis Ed. 3, 
Numero 9. 

Primerement que le Grand Cbartre, et le 
Chartre de Forest, et lea autres statuts fait ei» 
son tempi et de ses pn^eiiitnrs per profiu de 
jui, et de la commenaliy soient bien et ferment 
gardes, et mise en due execution sauns diittu*- 
bance mftttre on arrest fiiire le centre per spe- 
cial mandement, ou en autre manere. Nustre 
senior le rov pw assent prelates, duket, 
comites, barons, et la commenaltie ad ordeine 
et estabili que les dils chartrrs et atatuts soient 
tenui et miae en eiecutian seloa le dit Petitioo, 
Stat. 36 Ed. 3. Numb. 99. 

Tten, conuuc il soit contenui en le Grnad 
Chartre et aulres statuu que duI home sera 
prise ne imprison per special mandenient sauni 
mdiclment, ou autre proccs a feire per le lej 
et soient foits ad estre, et U'icore est que ple- 
BUres gents sont efnpescliea prise, et impnion 
samis indictemcnt ol autre proces fait per Ic 
ley sur eui, cibien del cliose fait hors de le 
furciC le roj, come per autre cause que piese • 
uostre dit sr. command, et deliv. ceux que sont 
ami prise per tiel special mandement contre 
le forme de chsrtres et statuta arant dits. 

Item, pieat on roy et si nul de sent greine 
vingne, tt fait te plamt et droit serra fait a luy. 

Pariiament. anno 43 Ed. 3. Numero 12. 
Item, pur ceo que plusoura de vosire come 
■out amerce et di^lurhes per faulx accuior* 
qucux loot lour accusemcnts plus pur loor 
veonesDces et siugulers profits que pur le profit 
de roj ou deson ueuple. 



U&ire 



;n.d« 



le conceil roy per brief cu . 
roy mh grmide pain encouutre la ley, Plese a 
nostre sr, le roy et son conceil pur ilroit gou- 
vernmcnt de son peuple orrieigu que 'sj deiire 
ascuQ accusors purpose fucun mniire pur profit 
dn roy qut cde matire Boit maoder a set juftieM 



13S] STATE TRUI& SCuaussI. ia2S.—Pr<xeediii^mParliameMrekiptgio [lU 

del' im banke ou del' autrs, ou d'awites dent 
«nquere «c tennioere selonqua la le;, et >i le 
touclielaonsour uu putieeic sasont a U tome 
ley, et qiie null home soit la'n a rcaponilere sana 
preaeDlmEOt deut justicet, ou choiede record, 
ou per due praces et bciete original, mIod Toii- 
cieut ley de la lerre, et si rieo desire euovuot 
■oil raital' eocaatrc,H>ic voideen le;, et teiui 
pur error. I'ur ceo que cetU Article eu Ar- 
ticle de le Craude Chnrtre le roy Toet que ceo 
•oil fail cotoe la Petition demands. 
Ex Kot, ciaus. de anao Hegni Regis, Edw. 1. 
primo, Membrano 1. 
'nkCMiiRs de Clere de Beckwith captus et 
detent, tn prisoaa de Northainptan pro trana- 
gressiane fureK. habet liter*) flagera de Clif- 
ford, justiciar' lbr«9t. citra Trent, quod pbnatur 
■ ball. Dat. apud Stinct. Martk. Hngn. 



Xiondun 30 die Octobr. 

MecnbraoD T. * 

Sicpbanos de Lindley capt, et detent, in pri- 

sona.pro irantgrei. per i[euni fact, in forest 

regis de Lindley habet liieras regis GaUrido de 
Ncvill, jusdcinr. ultra Treut. quod p<MiBtur per 

Membrano B. 

Tlio. -Spademrin capt. et detent, in pHsona 
de 0x011. pro morte Willielmi Winne unde 
rectal, est, habet litenu regis vicec. Oiod, quod 
ponalur per ball. 

M^mbrBno 9. 

Williclmus de Deane, Matheus Crust, Roger 
de Bedell, W. Halfrench, RobeniK Wyai, 
Aleiaader Ilareing, Harry de Shome, Nicolas 
de .Suodilande.Turgesiu) de Hertfield, Uobertiu 
de Pule, ct Hicardus Galiot, capti et detent, in 
prisona de Cant, pro morte Qall'ridi de Cottilfer 
UDdu appellati sunt, liabenc literas rcfjii vie' 
Kbd. quod ponanlur per ball'. Det, 33 Mailii. 
Glaus, aono 3 Ed. I. Membr. 13. 

Rex Rugero de CliSord, juiticiar. forest, cilrn 
Treut. mandamui vobis quod si Robeitus Un- 
win, capt. et detent, in prisona nostra de Ayles- 
bury pro trauiEres. forest, nosir. invenerit vobis 
VI probos et Tegales homioes de ball, vestra 
qui manuciapiant eum habere coram jusLidar. 
itosU'. ad placita forest, cum in partes, &c. nil 
stand. ind« reccaC. tunc apud Sabertum ei se- 
cundum nssisum forest. Fuer. repleg. perdictos 
duodecim, interim traditur in ball, sicui pred. 
est et babeUit nomina illorum 19 honuBum. 
£l hoc bre. f(c. Dat. 97 Fcbruar. 

Clans, anno 3 Ed. 1. Num. 14. 
Unwynusde Boycot, GalfridusdeWickeram, 
ei Hugo de Stone, detent, in priaona re^s de 
Aylesbury pro transgr. venationii habuiC bre. 
direct. Rogero de Clifford justiciar, forest, quod 
M secundimi assis, forests eruat repleg. usque 



Nuojero IS. 

Gullbert Conrny de Keddinjcton, et Hugo )e 

Taylor tie Reddunion capL tt dcteU. in pii- 



sona sancti Edmuudi pro morte Eiimundi Bunt- 
ing unde rectati sunt hibuerint lilenii r^is. 
vie' Suff. quod ponantur per ball. 

Ctaus. anno 3 Ed. 1. Num. 11. 

Galfrirlns de Hairton caplut et detentus in 

prisona regis Ebor' pro morte AdeP Ckrke, 

unde rectatus est babet literas regis vie' Ebor. 

quod ponalur pec ball. Dat. apud Wettmiut. 

Numero SO. 

Eobertus Belbarbe captus et detentus in pri. 
soiia de Newgate pro morte Tbomti Pollard, 
unde rectalus est halieC literas i^gis vie. Midd. 
quod ponalur per ball. Dat. 38 Februar. 
Claus. num. 4 Ed. L Uembi. S. 

Mandatum est Rado da Sandwioo quod siW. 
da Patiare, & Jo. Iiliu4 ^ui^ Walterus Ifooiev 
Walterus Conven, lien. Path, et W. Cadecan^ 
capt. at detent, in prisuoa t^s de S. firionoU 
pro transgi. for. unde reiHali sunt, inyemrioC 
sibi 13 probos et legates hamiilf s do ball, sua, 
viz. quilibet eorum 13 qui eos manucep' habere 
coram justiciar, regis ad placita IbrasL cum iit 
partes illas venerint ad Hand, inde rcctat. tunc 
ipsas Willielm. Jobaniiem, Waltnrum, Walt»- 
'rum, Heurieum, et Willielm. pred. 13 si secun- 
dum assisa. fuer. repleg. tradantur in ball' nl: 
pred, est, et habeaiit ibi oomina illorun 18 li»-. 
minum et hoc bre. Test. Rege apud ball' loouin, 
r^is 30 die Augusti. 

Clous, anno 4 Ed. 1. Memb. 10. 

HenricuB Blius Rogeri de Kenn de Cotters- 
brooke capt. et detent, in prisona nostra Nor- 
tbamptao pro morte Simonis de Charrettell, 
uoile appeilatus est, habet literas regis vie* 
Northampton qund ponatur per ballium. 

Claus. anno 5 Ed. 1, Memb. 1. 

Mandatum est Galfrid. de Neril justiciar. 
forest, ultr, Trent, quod S. Walterus de la 
Greene captui et detenius in prisona de Noli- 
Etngham pro transgr. for' invenerit sibi 19 pro- 
bos et legales homines qni turn luanueapiant, 
&c. od Etand' inde rectar. secundum nssi's. for' 
regis tunc ibidem Walter, pred. 19 traditor in 
ballium sicut pred. est. Dal. 16 Not. 
Membrano 3. 
' Tbomnsde Upwdl et Juliana uiorejus Capt.. 
et deCeot. in prisona de Wynbateibam pr<» 
morte Stepbani Soulbel, unde rscCaL suut, nn- 
beiH Ulei^ vie' Nnrff. quod potkontur per baU 
Uam. Dat. npud Rothclm 2il ilie Septwnbi- 
Claus. anno 6 Ed. L num. 9. 

Bitlierua Pestlecaptui et rietentai fiiit in pri- 
sona r«gis de Norwio, pro morte Julinnn quon- 
dam uior* sue, unde rcotaiui est et habet lite- 
ral vie' NoriT. quod ponatur per ball' Teste- 
Rege apud WesDniiist leNovcmb. 
Membraoo 4. 

Mandatum eKvic'NotuniEbamqnodsiTIio, 
de Cudart rectaC. de tranwr. forest, quod fe- 
ciMe dicebatur iu forest, de Sberwntxl, iiivene- 
ril sibi sex probas et Icgales hoounei de ballivK 
sua qui eu<D ^anucap^ haber* Gacaa)' wgiB mI 



laaiMhriim regis nd stand, rect coram tege cum 
rex tndc cum eo loqui Tohicric, tunc pred. 
Tbo. prrd. Sdx homioib. inidac in ballimn 
jnta manucapt. tupntdict. Dat. 15. die Dc- 



STATB TRIALS, 3 Cukklm L 1638.— fV Lfficrty qftke StAjtct. [ISU 

ric' Norff. quod ponaior per bull'. Teste regn 
ipud Sbeene 39 Jar. 

NoRiero 18. 
Johnnofi Frere optus et detciit. in giole 
regis Oxon. pro moite Adn de Eficlotgh uuHc 
rectat, est hibet lit«n» regia vie' Devua. qaud 
MUar per bait'. TeaCc apud Westminst. 6 
lecembr. 



Membrauo 4. 

Tbo. BiirraU capuu at detent, in prisona 

tt^ Eion. pro inocle Galfrid. Geffiird aade 

rectan. MI twbet literas don. r^it vie' Devon. 

*|uu<I poDBtur per ball'. 

CIhus. anno 1 Ed. 3. Membi. 1. 

Jobannn Brjiin de Rolliuwriih ciipt. el de- 
(mt. in piiMxia revis Oxod. pro morte Johan- 
na de Suttou, uode rectat. est habet literal 
recis vie. Oian. quod ponalur per ball, usque 
jiTlnl. asiis. si en occaaione, &c. Teste Rege 
apnd Bristol, IB Junii. 

MembraooS. 

W. Spore Capdl. capt. et detent, in prisonA 
wtga Oion. pro moite JahanniB Spore unde in- 
dictoius est, ec habet literas regis vie' Devon, 
qoMl poDatur per ballioio usque ad proi. OHts. 
■I eft oocBsioite, &c. Teate liege apud Windsor 
S8 die Mail. 

Nuraero 10. 

Gilberius Faitchlld cnpt. et detent, in gaole 
regis DoTctiESter pro morie Henrici de L«ngtoii, 
undo iodictat. est babet literal quod ponatur 
per ballium usqne ad prioi' ai«iss. Tesw Itege 
apnd Westminst. 38. Febniai'. 

aaos. mnno 2 Ed. S, Hemlir. 1. 
WiDielmus Sandie He Cobtmin capt. et de- 
tent, in prisona regis Cant, pro morte Johonnts 
deSpriak, JobaiinisErniDnade DuiibeHie, unde 
rtctatui est habet litem regis vie' Kane' quod 
ponalnr per ball' usque ad primnm nssi*. si ea 
oecasiane, &c. Teste Rtge apud Ceitre. 39 

Radolph. Corjna capt, et detentus in ^le 
r e gi s de Lincotne pro morte Willielnll filn Sj- 
monis Porter uode rectat. est et habet litem re- 
gis vie" Lineoine quod ponatur per ball' usque 
•d primam assb. si ea occaaione, &c. Teste 
Bege apud Sbeene 3 diei Junii. 

Membraoo T. 
Jobanne* de Oitlierd'capt' et detent, in pri- 
noB i«gis Ebor' pro morte Mathei Sunpaon de 
Ebor* DBde Daetatoa «st habet bterai Kfpt vie' 
Eboi' quod ponatur per ball* usque ad priio' 
assis. Datapufl LaogeleSOdieAfriUa. 

Clans, 3 Ed. 3. Membr. 13. 

Adam de fepper captus et detent in gaole 
s^is Ebor' pro morte. Henrici le S;mer' de 
Eastrick tttuie roctatus est habet literal regis 
vie' Ebor' quod p«Miat' per ball' usque ad pri- 
nain aMii. Teste Hw« apod WeaimiDSC. T die 
Febr. 

N'omero 14. 

Maijareta uiior WiHielmi Calbet capta et 
Ittcoca in gaole reeisNorwici firo morte Agoetis 
Glus Willielmi Calbot, et Matilda sororis ^u> 
dea Agnetis, onda tectata est babet litam regis 



Clous, anno 4. Ed. 3, Meinbr. 7. 

RobertU! Sherere cape, et detent, in gaole 
regis de Colcestr. pro roorte Roberii le Moigne, 
,unde rectat. est habet litcras regis vie' Easet 
quod pooalur per ball* usque ad priai' assis. 
Dat. 33 die Mail. 

NumcHi 8. 

W. filius Roberti le Fihbere de Shirborne 
capt. et detent, in gnole regis Ebor' pro iBorie 
Roberti le Modus de Norton, unde i ' 



Ckus. anno 4 Ed. 9, Numero 33, 
Ttiomas Ellis de Stanford capt, et detent, in 
priscinn regis Liucilue pro motte Miehaelis 6\a 
willielmi Oe Fodering, unde rectal, est habet li- 
teras regis vie. Lincolne quod ponatur per ball' 
usque fd prim, assis. Teste i^e apud noram 
Westmonast. 8 die Septembr. 

^ EdwuidCokb took up the Argainent, as Ry 
theretioiuil partoftbeI«w,Bwl began with 

this IimODUCTIOK.* 

Your lordships have heard seven acts of par- 
liament in point, and tbirty-one Precedents sum- 
marily collected, and with great nndersianding 
delivcrad ; which I have perused, ond ondei^ 
, stand them nU ihoro-jghlj^, and that there was 
not one of ihem againn the Resolution of the 
house of commons. Twelve of ibe Precedeuti 
are in ttrminit lermiaantihii, a whole Jury of 
Precedents, and all iti point ; and to my under- 
standing, they admit of no ansvier : but I am 
persuaded io my conscience, |hat a number of 
ihem was never shewed nt tlie King's-bencb, be- 

■ '• "Hie Lord Piesitjent, who reported the 
Conference to the house, b^un thus: TheCon- 
ferenee upon Monday last with the lower liouie, 
was about the Liberty of the Sutgect; to set 
this forth, they employed four Speakers : the 
fim was sir Dudley Diggs, a man of a voluble 
and eloqneat speecti, his part whs ibe introduc- 
lioD ; the second was Mr, Littleton, r grave and 
learned Inwver ; whose part was. to represent 
the Resolution of the house, and their grounds 
whereupon they went; tte third was Mr.Sei- 
den, a great nntiquaTy, and a pregnant man, his 
part was4o sbcw the law,'and the precedents in 
point; the fourth was th? lord Coke, ihnt fa- 
mous reporter of the law, whose part was to 
shew the reason of all ihnt the others had said, 
and all that which was said was but an aiGrm- 
-ance of the common law." From a MS. be> 
longing to the late Peter le Neve, esq. ; aitd 
writren at that time, wherein iheConfErencc ■ 
reined, 



197] STATE TEIIALS, 3 Charles I. Ifi28. 

cajMC I know out of wlMwe quiver two of than 
came, and that thn; were not known befure, t 
am much traniporteri with joy, because of ibe 
hopes to proceed with goud succesq in this 
weiahtj bnsinm,yoi>r iurdships t>eing so full of 
juttice, and Cba very theme and subject doth 
Jiromise success, which wni, ' Corpus cuin causs,' 
tiie freedom of tin EDjjliahman, not lo t>t im- 
prisoned n-itbout cause tbewn; which is my part 
to shew, and the rettsan and the cause whif it 
Aould be so. And Iduubt not but we Malign 
oo happily ; and, my lurds, it would be uimea- 
Buiable to he pruhx and copiuus, because, 'quod 
' intempestiun injiicuiiduui.' I wou'til 8) eak 
here aiittle <o some points which are not so 
clear and obvious, for otherwise ' peispicua veni 
' ucin sunt prjhandn,' and to [ildgold were idle 
and lUperfluout; therefore shall briefly clenr Id 
your lordships tome doubts madeof tlie Statute 
«f WeatminUer, which says. Sheriffs and otl>eni 
. maj Dot replevy men in prison Ibr four causes; 
1. For death of a man. 
S. Commandment of the king. 

3. Absolute command from ilie Juslicei. 

4, For matters of the forest. 
I was oncea Judge of the KiiigVbench, and 

did wander how the Judges of these limes thus 
interpret ibe Statute. Tlie Statute only shews 
what Sheriffs can only do, by woy of repltvip; 
the SheriIBi Court is a petty and base court, and 
not Qf record, where theSheriff is not the Judie, 
but the Jurors, thai is, John a Noke, and John 
a Stiles, William Koe, and John Doe, and such 
worthiei ot these. Aeain, the Statute saith 
there, he cannot be replevied if he be taken for 
the death ofu man; and do marvel, whoever 
thought it; for the Scripture snith, ' Sianeuis 
' nulTo modo expinri potest nisi sanguine.' But 
if he cannot be tliere replevied, at the KingV 
liench he mny, it is there done every day. Mr. 
SberilT, you should replevy a man in such a case, 
trgo, not hail him, mv lords the Judges, (nan 
tequUur): What not' Judges biiil? Whatnot 
the King'S'bench, the highest Court of Record 
of ordinary jurisdiclioc f For the King's-bench 



that addition proves the 
the Teste of the King's-bench is ' coram dom. 
' rege,' without any addition, but that of the 
Chancery, ' coram dom. rege in CBQcellnria,' 



want of time, for I am much drlighled with 
ihete things. What, may not tlie Judges med- 
dle with any thing in the Forest? If that were 
*o, I would never dwell in a forest, to be wholly 
nnder the iiirisdiction of the wardens aod re- 
garderi. These glosses and interpretations 
are very strange to me, and others vfho have 
been Judges. My lords, all those Arguments 
offeied unto your lordships in this last confi^- 
tence, areof^adoublenature. 1. Actsof Par- 
liament. 3. Judicial Precedents. For the 
first, 1 hold it a proper argimient fur your lord- 
(bips, because you, rny lords temporal, and vou, 
ip; .lords spiritual, gavt your assent unto iQosc 



■ProcetdagsmPartiaiHaUfdatingto [13S 
acta of parliament; and therefore if these can- 

not persuade i|du, notliiiig can. For the stc md, 
which are judjciut precedents, it is ' Argumen- 
' tum ah authorituce,' EUid ' Aiguoteutunt ab 
' BUlhoritate ralet affirmaiiife:' that is,,tcoD' 
ceive, though it be no good argument to say ne- 
gatively, tlie Judges have given no upinii^ti in 
the point, er|v, that is not taw; yet affirma- 
tively iCconctudes well; the Judged have deariy 
delivered their opinions in the point, erge, it ii 
good law ; which I fortily witli a strong niiom, 
' Nenunem oportet sapientorunt esse Icgibus,' 
as long a9 these laws stand unrepenUd. Now, 
theiie two arguments being so well pressed to 

J 'our lordships by my colleagues, I tliink your 
urdshlps may wonder wliat my part may be; it 
isshort, hut sweet; it is Ibe reason of il those 
laws and precedents, and reason must needs be 
welcome to all men ; for all nlen are not capa- 
ble of tile uuderscandiiig of the law, but every 
man ig capable of reason. And those reasons 
I offer to your lordships, iu alhrmaiice of the 
aocient laws and precedraits made liir the h> 
berty of the subject, against iuipiisonment nilb- 
out cause eipreased, and shall ibaw theni in 
order and method, to confirm the same, 

. 2. A minori ad miijiu. 

3. From the Remedies provided. 

4. From the eitent and univcrsalitj of th« 

i. From the infinitenesi of the time. 

6. AJine. 

The tirst general reason is, i re ipu, even 
&om tho nature of imprisonment, ' ex viscrri- 
bus CBuszj' for. I will speak notliing tmt uif 
idtm, be it close or other imprisonment: and 
this Bigument is threefold, beca)ise an impri- 
soned man upon will and pleasure is, 

1. A Bondman. 

3. Worse than a Bondman. 

3. Not BO much M a man.; for ' moituDa 
' homo nan est homo,' a prisoner b a dead 

1. No man can be imprisoned upon will and 
pleasure of any, but he (hat is a Bondman aod 
Villein, for that imprisonment and bondage arc 
' propria quarto modo' to villeins.* Now 
' propria quarto modo,' and the species, are 
convertible ; whosoever is a Bondman, mav - 
be imprisoned upon will and pleasure, antl 
whosoever m^ be imprisoned upon will and 
pleasure is a Bondman. 

3. If a Freeoiat) of England might be impri- 
soned at the will and pleasure of the kii^ or 
hii commandment, tlien were they in worse 
case ihaii Bondmen or Villeins; &r Ihe lord of 
a villein cannot command another to imprison 
his villein without cause, as of disobedience, or 
refiising to serve, as it is agreed in the Year- 
books. And here he said, that no mati should 
reprehend any thing that he snid out of tha 
Books or Records: ho said, he woidd prove a 
freeman imprisonable upon command or plea- 
sure, without cause eipressed, (o be ebsolntelj 

• See tlie Writ DeNalivohabendo. 



,Goo;;lc 



129) 



SPATE TRIALS, 3 Charles I. im6.—th Libcriy qfthe Subjtct. 



[ISO 



in irarae cnse than a frllein ; and if he did not 
make Ihii pLiin, he desired ifaeir lordships not 
(o bdierc hi™ in niiy thing else : and then 
pTodnceii two Book-CBses, 7 E. 3, fol. SO, in 
the new print, 348 old print. ' A Prior had 
' commanded nne to imprison liis Villein, the 
' JudjEei we™ readj to bail him till tlie Prior 
' e*Te \,'a reason, that he refused to he bailiff 
' of bis mnnor ; and that sntisficil the Judges. 
■ »d Ca^e, 33 Ed. 3, tiile Tresp. 953. in Fonj 



IS of n 



-ho c 



■ mnnded one to take and detain hii rillein, 
' but demanded his cause ; he gives i[, becBuse 
' be refused, being thereunto required, to drive 
' hu cat[le.' ■ Ergo, Freemen imprisoned, with- 

■ leins, that minthave a cause slieivii iheni why 
' clieir are imprisoned.' 

' 3. A Freeman imprisoned nithout cause, 
' is 9o te from being; a Bondtnan, ihnt he is 
< ant so much B9 a mnn, boi is indeed a dead 

* fDBD, and so no man : imprisonment is ac- 
' couDtrd in law n civil denth, ' perdit domum, 

■ foniiliam, vicinos, pntrinm,' and is to live 

* amtnigst wretched aod wicked men, malefac- 
' ton, and the like.' And that death and im- 
prisonment was the same, he proved by an ar- 
Honirnt at rffetlit, because they both pitjdoce 
the like imtnediate effects ; he quoted a Book 
(or Uii*: if a man be ihrenlenid to be killed, 
be may avoid a Feoflinent of Lands, Gifts of 
Goods, &c. 3g H. 1, 65, &c. so it i« if he be 
threatened to be imprisoned; the one is an 
cctaal, the other Is a civil deaths And this is 
the first genera) argument, drawn d re ipia, 
ftom the Netai^ of Imprisonment, Co which 

* res ipsa consilium dedit.' 

Tbe second general Season be took also 
froiQ his Books ; for he said he bad no law, but 
nhat by great pairvs nod industry he ieamt at 
his book ; for at ten years of see, he had no 
mon: law than oiher men of FikG age : and 
this second Reason is, 5 minori ad majut: ; he 
takes it trom Bractoii, fol. 105, ' Minima pcena 
■ corporalis, est major qualib£t pecuniaria.' 

Bnt the kihg himflelf cannot impose a Fine 
opon any man, but it must be done judicially by 
his Jud^, ' per justiciaries in curia, non per 
' rcisetn in camera ;' and so it hath been re- 
. *^ved by nil 'the Judges of England: Ije 
quoted 3 R. 9, fol. 11. 

Tbe third general Reason is taken Irom the 
ntnuberaud ditetsiiy of Remedies, which the 
lair* give against tmprisnnnftnt, vix. 
- Brest de hoiaine replegiando. 
De odio et alia. 
De HaUai Corjitis. 
An Appeal of Impniomacnt. 
Srevede Jaaavr.aptioni. 

Two of these are antiquated, but the Writ 
' de odio et atia' is revived, for that was given 
hy the Statute of Magna Cfiarta, e.^ 36, end 
Iherefnre though it were repealed by the Sta- 
tute of 98 £. 3, c. 9, yet it is revived again by 
the Statute 4^ E. 8, c. 1, by which it is pro- 
tided, that all Statutes made against Ua^* 

VOL. III. 



Charta are void. Now the law would never 
have given so many Remedies, if the Freeman 
uf Englanii might hace been imprisoned at free 
will and pleasure. 

The fourth general Reason is from the Ex- 
tent and Universality of the pretended Power 
to imprison : fur it stionld extend nut only to 
thecommimsof this realm, and their posterities, 
bot to the nobles of the land, and their pro- 
genies, to the bishops and clergy of the realm, , 
nud their successors. And he gave a causa 
why the commons came to their lordships, 
' Commune pericutum commune requirit hui- 
ilium,' Nay, it reachelh to all persons, of whiit 
condition, or sei, c:r age soever ; to all judges 
and officers, whose atiepdance is necessary, 
^c. without exception ; and therefore an im- 
prisonment of Buch an extent, without reason. 

The fifth general Reason is drawn from the 
Indeliniteiiess of Time; the pretended power 
being limited to no time, it may be perpetual 
' ' ig li& ; and this is very hard : ' ' ~ 



old t 






allotie'd for his coming fortfi, is a fiard 
case, aa any man would think that had been so 
u^ied. And here he held it an unreasonable 
thing, that a mim had a remedv Tor his horse or 
cattie, if detained, and none for his body thus 
iudelinilely impriioned; for a prison without 
a prefixed time, is a kind of hell. 

The sixth and last Argument is ifine ; anrt 
' sapiens incipit k fine,' and he wished he had 
he^u there alio 1 and this argument lie made 
threefdid. 

Ahkonetto. This being less honoorable. 

Abvlili. ■ Tbis-bein^ less profitable. 

A tuto. This impnsonnient by will and 
pleasure, being very dan- 

{erous for t)ie king and 
iogdom. 

1, Ab honesto. It would be no honour to a 
king or kingdom, to be a king of bondmen or 
slaves ; the end of this would he both iedecu* 
et demtium, both to king and kingdoni, that ia 
former times hath been so renowned. 

S. Ab ulili. It would be against (he prolit 
of ibe king and kingdom, for the execution of 
those laws before remembered, Magna Charta, 
5 E. 3, 95 E. 3, 38 E. 3, whereby the king wa« 
inhibited to imprison upon pleasure : you see 
(quoth he) that this was velui gttrrtta, an old 
question, anc^now brought in again, after seven 
iicts of parliament: I say, the execution of all 
these laws are adjudged in pariiament to be 
for the common profit of (he king and people ; 
(and he quoted the Roll) this pretended power 
being against the profit of the king, can be no 
part of his prerogative. — lie was pleased to 
call this a binding reason, and to say, that the 
wit of man could not answer it ; indeed the 
great men kept this Roll from being printed, 
but that it was equivalent in force to the 
printed Rolls. 

3. A IteasoD i iaio. It is dangerous to tha 
king for two respects ; 1. of loai ; 8. of dec 



131] STTATE TKIALS, S Chables I. -[eas.—ProceeduigiiaParliaiiKnlrdatttisto [1S3 

fuur Bouk-cwel aad Authorities, ill in ihe 
puint; Baying, tlitt if tlie lenmed couawt o 
the oUier siile could produce but one again: 



trojing ihe endeavoun of men. First, If h« . 
be committed withnuc the expressicm of the 
cBu&e, ttiouj^ lie escape, albeit in trutb it were 
for Irea'soD or felonj, yet tbia eacnjie is neither 
felrjnji nor (reason ; but if the cauie be ex- 
pn.'ssed fur suspicion of treason or felony, then 
lilt: escape, though it be ianuceot, i» treason 
i/r ^laoy. [The Act, which is in Laliii, is, 
' nisi causa pro qua captus, et impiisunat. fult 
' tulejudicium requirnt, si de ilia pro legem et 
' consuetudinem terrse tuisset convictut.^ lie 
quoted u cniise in print like a reaM>n .of the 
law, not like ' reniitiitur' at the rising of tlie 
court ; for there the prisoner ' iroditur in 
' balliuQi auod brere ri^is nan fuit sulficiens 
' cuusa;* Ihe- king's command. lie quoted 
iiiiother fiimfius cause; the comnoos in par- 
liament, incensed aguiust the duke of Suffolk, 
desire he should be committed : the lords end 
all the Jud-^, whereof those great worthies, 
Prescot and Fortescue, were two, delivered s 
flat opinion, that he ought not to be comuiilted 
without an especial cunse. He que-itioneri also 
the name and etjmolocy of the writ in question, 
' Corpus cum causa C ego, the cause must !« 
brought beiiire the judge, else how cnn he take 
notice hereof f 

Lastly, he pressed a place in ihe Gospel, 
Acts 93. last ver>e, ivhere Festus conceives it 
an absurd and unreasonable thin^, to send a 
prisoner to a Itoman emperor, and not lo wiite 
along with him theCauseolledged against him ; 
send therefore no man a pritoner without bis 
Causes along with him, hacfac ct vices. And 
that was tiie first reason, A tuto, that it was 
not sate forthe king, in regard of loss, to cnai- 
mit nteo without a caotc. 

Tlie second Season is, that such -commit- 
Dients will destroy the endeavours of all men. 
Who will endeavour to employ himself in any 
profession, either oF war, merchaiidixe, or of 
any liberal knowledge, if he be but a lenniit 
at will of his liberty ? For no tenant at will 
will support or impiore any tbiug, because he 
bath no certain estate ; Ergo, lo make men 
tenants M will of flieir librnies destroys all 
industry and endouvours whatsoever. And so 
Kuchfer these six principal Ueaions : lakeu, 

S. A miitori ad maju$. 
. 3, A rcmedUt. 

4. From the Eilent and Universality. 

5. From the Infioitenessof the Time. 
0. AM- 

i Honour. * 
Profit. 
Security. 
Industry. 
These were his Beasons. 
Here he made another Protestation, That if 
• Remedy had been eiven in ih); Case, tliey 
would not Save meddled therewitli by no 
means; but now that remedy being not ob- 
tained In ibe King's-bench, without looking 
back upon any thing that hath been done or 
omitted, tliey desire some provision fur the fu- 
luie only. And here be tosk oceauon to add 



the Liberties, so patund pertiuenl, oh! how 
they C(iuld hiig and cull it ! 16 lien. 6. tit. 
UdoHtlrance defait 83, 6y the n hole Court, tb» 
king in bis presence uannot conimaod a nuD 
to he arrested, biit nn action of false imprison- 
meut lieth against bim that arresteth : If not 
Uie kiug in hii royal presence, then, none other* 
can do it. ■ Non sic itur ad ostfn.' 1 Hen. 7, 
4. llus»ey reports the Opinion of Mai-khamy 
C. Justice 10 Ed. 4, that he crjuld not imprison 
by word uf mouth; and the reason, because 
ihe party hath no Remedy ; for tlie law leaves 
every man a remedy of causeless imprisoimien^ 
lie added, tliut Markhain was a woitliy Judge, 
ihou):h he fell into adversities at last by Uie 
lord Kivers's means. Fortescue, chap. 6. ' Prtk- 
' prio ore iiuUus regum usus est,' to imprisoD 
any limn, Uc. 4 Lhi. Times bleated aud re- 
nowned for justice and religion, in Plowdcn, 
^35, the Common Law tiath so udoieasuted , 
tlie kin(;'s prerogative, .as he cannot prejudice 
any man in his inheriuoce; and the greatest 
iiiberitnnce a man hath, is the Liberty of hii 
Persou, for all others nre accessary to iL For 
thus he quoted (he oniior Cicero, ' AJujor ba- 

' quaui a pajeotibus.' 

And these nre the Autlioritica he cited ia 

Now he propounded and answered two 01^ 
jections: first, in point oF Stoic; secondly^ in 
ttie course held by the tlousc of Commouf. 

May not the Privy Council commit, without 
cause ehcwcd, in no matter of state- where se- 
crecy is required? Would not tliis be au hin- 
drance to his majesty's service * 

It cttn be no prejudice to the king by reason 
of matter of State, for the cause must be of 
liiglier or lower nature. If it be for suspicion 
of treason, misprision of treason, or felony, it 
may he by general words coAiched ; if it be 
for any other thing af smaller uBiur«, M Con- 
tempt, nnd the like, tlie particular cause must 
be shewed, and no ' individuum veguni,' or 
uiicert-nui ciiuse to be udinitted. 

Agaiu, if the law- he so clear as you make it, 
why ueeds the Declai utioo aud Remonstrance 
in parliainent \ 

tlie Subject hath in this case sued For Ue- 
meiJy in Kiiig's-bench by Habeas Corpus, and 
FoHnd none; theruFore it is necessary to he 
cleared in parliament. 

And here ended -bis Discourse. And then 
he made a Recapitulation of all that bad becji 
offered unto tlieir lordships, tliat generally tlieir 
lordshiijs had been advised by the most taithfol 
counsellors tbal can be; dead men, these can- 
not be daunted by fear, oor mblnl by affec- 
tion, reward, or hope of preferment, and ibere- 
forc your lordships might safely believe them : 
particularly their lordships had three several 
kinds of Proofs. 

1. Acts oF Parliament, judicial Precedents, 
good Beasoni. First, Tou have hod many an- 



!33] STATE TRIALS, 3 Charles I. 

cwni Beta of-pnTlintneiitjn the point, bearded 
]d^> Cliana; ihat ii, seven acti of jwrlia- 
nent, wliicli indeed nre thirtj'-seren, AlagiiH 
Ctnnn bein* coiitinne't thirty times, for su 
tCwD fasTe ihr kings of Englaud given tlieir 
mfd usent theretu. 

8. Judicial l^cedeniiof pravc and reverend 
Judges, In Irrmijii) ierminanliliai, tliaC luiig 
•ince departed the world, and cliey. were mnny 
ig numiler. Precedents being twelve, find the 
Jadges fuur of :l Bench, made four times twelve, 
lod that i) forty- eight Judges. 

9. You have, oi be termed then), vividar 



ihipt, that ibej of the House of CoTnmons hare, 
Dpon great Kady nnd serious cnnsideration, 
made ■ great manifeataticm unnniinouiily, nulla 
QMfradieeiiK, concerning tfaii gieat Liberty of 
the Sabject, and hare vindicated and recQvared 
the boiij of this fDQdamciilnl Liberty, both of 
Uxir lord^ips and tbcmselves, from shadows, 

• vhidi sofhetnnes of the day are long, sometimes 
■liott,and sometimes loni; Bgain; and therefore 

. *i must not be gaided by sbfidows : and they 
bare transmitted to their lordships, not capita 
rrrMi, Heads or Briefs, tor these compendia 
ttt dupendia ; but the Records at large, in 
UndnU ttnai»ai\libuf. And so he concluded,' 
lliu their lordships tve involved in the same 
duger, and therefore 'excongruoetcondigno,' 
diCT desired * Conference, to thp end tlietr 
Wthjps might make I he like Declaration as 
ihej had done ; ' Commune pericolum requint 
' coonnuneauiilium;' nAd thereupon take such 
fiuther course at loaj secure th«r lordships 
and them, and all ibar posteritv, in enjoyiog 
>f ttieir ancient, undoubted, ana fiindamental 
Liberties. 

IlMSubMaiiceof theOiUECTJOHSiDadeby Mr. 
Attomey'Ceneral (Sir Robert Heaib] be- 
San » Conuuittee of both Houses, to the 
AiGDUEHi that was made by the liouse of 
CoaiaiODi, at the first Conference ' with the 

Arrift the firat Conference, which wm de- 
nred by the L^rds, and had by a Committee of 
bMh HoDws in the Fainted Chnmber, touching 
the Heasoni, Laws, Acu of Parliament, and 
Precedei|t« concerning the Liberty of tlie Per- 
)0D of (Very Freeman; Mr. Atlorney-Genernl 
Uiag beard before ibe Committee of both 
Uonies, *g it wai anented to by th^ -house of 
oiiiunoas, that he aigbt be, belbre they went 
■p la the Conference ; after some preamble 
■>Mle, wherein he declined the answering all 
Reaiom of Lnw, and Acts of Parlbment, 
CUM ont^ to ^e Prei^dents used in the Argu- 
Beoc before delivered ; and so endeavoured to 
*caken the strength of them, that had been 
brought in behalf of the subjects, and to shew 
il>t same other were directly cnnirnry to the 
l>*i comprehended in the resolutions of the 
kme of commons, toaclunK the bailins of uri- 



iclunKthe bailing of pri- 
MMn, returned upon the Writ of Habeas Cor- 
|v tg be cooiDUtted by tha ipacial coDuuuid 



1028.— f&! Liberlfi <^lhe Saiject. [134 

of the king, or the council, without any cause 
shewed, fur which by law they ought tii be 
coromitted. Aud the course which nas tnten 
(it plensed the Committee of bolb ~liouseb lo 
allow of j was, that Mr. Attorney should jnake 
bis Objections to every particumr Precedent, 
nnd that the Gentlemen appointed, ami trusted 
herein by the house of ci>mmons, by scveralre- 
plies thould satis^ the lords touching the Ob- 
jections mode by him, Hiiaiost, or vjxm etery 
[inrticular,a3the order of tlie Precede Dti iliculd 
ead ihem. He b^an with the first twelve 
Precedents ihnt we?e used by the House of 
Commons at [ho Conference desired by them, 
10 prove that prisoner* returned to stand so 
committed, were delivered itpon hail by the 
Court of King's-Bench. 

The fint was that of Bildeaton's Case, in the 
18 lEdw. 3, Rot. 33. 

To this he ob'iected ; first, thnt in the reiom 
of him into the Court, it did not i^ipeur, tliat 
this Bildeston was coiiiraiited by tlie kiug's 
command; and secondly, thui in ihe Record 
it did appear also that he had been comoiitteil 
for suspicion of counlei/eiting the great seal, 
and so by consequence was bailable by tjielaw, 
in regard there appeared a cause wliy he was 
committed : in which case it wag granted by 
him (as indeed it was plain and agreed of all 
hands) that the prisoner is bailable, thouth 
committed by command of the king. Aud he 
said that this part of the Record, by which it 
appeared he had been cnnmiitted for stispicioD 
of Treason, was not ob»erved to the lords in 
the Argument before used ; and be shewed 
also to the lords, fliat there were three several 
kinds of Records, by which the full truth lof 
every award, or bailing upon nn Habeas Cor- 
pus IS known. Firat, the Rem einbra ace-Roll, 
wherein the award is p^ven ; secondly, the File 
of the Writ and the Return ; and thirdly, ihs 
Scrtiet-Rnll or Scruetjinium, wherein the bail 
is entered, and that only t^e Ilemembrmnce- 
RdII of this case was to be found : and that if 
the other two of it were eitant, he doubted 
iiot but that it would appear also, that upon 
the return iuelf the cause nf the commitment 
had been expressed. And so he concluded, 
that this proved not for the Rosotntion'of the 
house of^ commons, touching the mnller of 
bail, where n prisoner wna committed by tho 
king's speciol coininnnd without cause shewed. 

To these Objections the r»ply was. First, 
that it was plain that Bildeston was committed 
by the ting's express command. For so tho 
very words of the Writ are to the Constable of 
the Tower, ' quod eum teneri et custodiri fa- 
' ciss," fltc. than which noiliiiiR can more fully 
eipress ■ commitment by the king'i cimmand. 
Secondly, however it be 'true, that in the laiter" 
part of tlie Record il doth appear, that Bil- 
deston had been committed for suspicion of 
Treason, yet if the times of the proceeding, ex- 
pressed ill the Record, were nbserved, it would 
he plain that tlie objection was of nu force ; 
for this one ground, both in this case and in all 
the rett, ii in&llible, ind never to be doubted 



135] STATE TRIALS, 3 Chablks L \e2S.—ProceedmgtinPaTluaneHtnlaiinsie [18^ 



of in the Taw, That Justices of ever; coart ad- 
ju((|(e of ihe force and slieiigth of a return out 
of ihe body of itself only, and ai tlierein it np- 
iieon. Now in Easter term in tlie IQ Ed. 3, 
lie waa retumed and brought before ibeiu, as 
committed only by the Writ ; wlierein no cuue 
h eipreMed, and the IJeutiDiuit nnd the Con- 
Kiable of tlie lower, ilint brougbt biin into tin 
court. Bays, Tliat be bud no other warrant to 
detain huu ' nisi breve predictum,' > wherein 
tlieie was no mantidn of way Cause ; and the 
Court tbereupuii adjudged, that ' breve pre- 
* diciuni,' or that special command, was not 
sulHcient cause to detain hiia in prison, and 
thereupon be is by judgment of toe court in 
Easter Term let to Mainprise. But that part 
of the Record wherein it nppcars, that be bad 
iudeed betn cotumitted for suspicion of Trea- 
Bon, is of Triniiy Term tiillou'iog, when the 
kiii^ after the lettii^ of bim to Mainprise, tent 
to ibe Judges that they should discharge his 
.Mainprise, because no man prosecuted bim. 
And at that time it apptars (but not before) 
tliut lie liiid been in for suspicion of Treason ; 
so that he was returned to stand committed by 
the liing's suecint command only, without 
cause sbenen, in Easter Term, aud then by 
jutlgment of the court let to Mainprise, (which 
to this purpose is but tbu same with Bail, 
tho'ugh otherwise it diller). And in the Term 
following upon another occasion the court 
knew, tiiat he had been cnmoiilteil for suspicion 
of Treason, w'hich has no relaiion at all to the 
ietiini of hint to Mainprise, nor to the judg- 
ment of (be court tbeu given ; when they did 
llul, nor could possibly know any cause for 
nhicb the king bad commitied him. And it 
Was said, iu behalf of the house of commons, 
thnt they had not indeed in their Argument 
e^ipressly used this latter part of the Record of 
Bildestun's Case, because it being only of Tri- 
nity Terra fallowing, could not concern tbe 
reason of an award given by the court in Easter 
Term next before; vet notwiltutanding that 
they had most faitlifnily, at the time of their 
Argument, delivered in to the lords, as indeed 
they had, a perfect copy at large of the whole 
Record of this cote ; as they had done also of 
all other precedents whatsoever cited by them ; 
insomuch as in irutli there was not one prece- 
dent of Uecont on either side, the copy where- 
of ihej had not delivered io likewise, nor did 
Mr. Attorney mention any one betides those 
that were so delivered in by them. And as 
toucliiug those three kinds of Records, (he Re- 
metnbrance-Uoll, the Return and File of (be 
'Wrii,an'dScruetsi it was answered by the Geu- 
tlemen employed by tbehouseof commons, tbu 
it WHS true, timt the Scruet and the Return of 
this cnsf of Bildeston was not to be found ; 
but that did nut lessen the weight of tbe pre- 
cedent, because alwayt in the award or judg- 
ment drawn up In the Remembrance-RoU, the 
'caote (wiiatsoever it he) when any is shewed, 
upon the return is always expressed, as it ap- 

E^ars dearly by the constant entries of the 
io^VBencn cuuit. S« that if any cause had' 



appeared unto the coart, it most have appeared 
plainly in that part of the Roll which belangi 
to Easter Term, wherein the judginent was 
given : but tbe tetum of the coniniitment by 
(he king's eomuiand wiltuiut cause shewed, 
and the Judgment of the court, that tbe pri- 
sons liaa to be. Jet to mainprise, appears there- 
in only. And so, untwitlislaudiog tiny ol^eo 
tion made by Mr. Attorney, the cause wis 
mninlained to be a clear proof, among many 
others, touching thnt Resolution of the boiMC 



To tbe second of these tweUe, which is 
Parker's Case, iu the 32 H. 8. Rot 37, his ob- 
jections were two; 1, that it is true, i bat he 
rettiroed to be committed ' per maiHtatuu 



by one itiibert Peck gentleman; and that in 
rcgarct tb,it tbe command came no othcfnise, 
tbe return was held insuBcieoi, and that there- 
fore he was bailed. 3. That it appears also in 
the Record that he was committed ' pro sul- 
' picione felonin ac per mandatum domini 
' regis :' SO that in regard that (he eipressisn 
of the cause of his copHnitment, lu&piciau rf 
felouy, precetie* tbe command of the king, 
therefore it must be intended that 'the court 
took the cause why tbe Ving committtd him to 
be of less ifiotnent than felony, and ibercfore 
bailed him. For be objected, iliat even the 
bouse of commons itbeinselves, in somean^ 
men(s used by them, touching the interpreta- 
tion of tbe Statute of Westminster ibe &rst, 
cap. 15, about this point, had aSirmed, tbst in 
enumeration of particulars, those of grcaieM 
nature were fint mentioned, and that it wis 
supposed, that floch as followed were usually o( 

But the reply was to tbe first Objection, 
That the addiuon of tbe certifying of the king's 
command by Robert Peck, altered not the esse: 
1, because the sheriffs in their return, took 
notice of the command as wlwt they were as- 
sured of: nnd howsoever it came to them, it 
was of equal force, as if it bad been mention- 
ed without reference to Peck. 3, As divets 
Patents pau tbe great seal by writ of priry- 
sesl, and' are subscribed ' per breve de private 
' sigillo ;' BO divers ' per ipsum r^eoi,' are so 
sutecribed ; and oftentimes in the Roll of 
formertimes, to the words ' per ipsnm regem,' 
B.' So that the 



maud related or certified by su 
this purpose of like nature. 3, In the late 
great csSe of Habeas Corpus, whien; ib« rettun 
of tbe commitment was ' per speciale mando- 
' turn domini regis uiihi siguincatum per do- 
' minntdeprivatoconcilio;' tbe tt>urt of King's- 
Beach did a^pree, that it was the same, and of 
like force as if ■ mibi sigoificatam, &c., had not 
followed, and that ibose words were vdtd. Ao- 
carding wbereunto, here also ■ per roaMUtom 
' dom. rqis nundatum per Robert Peck,' had 
been wholly omitted and void likewise. And 
in truth in that iaie case, this Caw of PHket 



187] ^ATE TRTAl^, 3 Chabus L 162.S.-wA« Uberty (fikt Su^i. 

wu cited bath it the bar and bench j aedtt 
tin bench it wu intcrprelcd by the Judges nu 
atliernise, ihau if it had been ouiy ' per inaii- 
■ datum domini ic^is' in place of it : but the 
objectJoD there iras made at another liind, u 
n«s delivered in ttie Rnl Argument, made out 
of Precedeut) in behalf uf ihe linuse of com- 
mons. Therefore to the tecand objectiou, 
toutJiingthe contM ofenumerntiouuf (be cause* 
in the Betuni, it waa laid, that howsoever hi 
tome acts of ]iariiameut, sad ebenhere in the 
Mtieipi) eipresiiuni used in Che law, cblagi uf 
greater nature preceded, and tlm leu follow ; 
Tet in this case, the cooirarj was moit plaia, 
fur in the Hetum it appcart, ihat there were 
three caoieifordetainiiig tbeprisoners i Surety 
of ihe peace, dupidoo of felony, and ihe king^ 
command: and auitty of the peace ia £nt 
meniioned, which ii plainly leu than felouj. 
And therefore it ii plain, if any tbrce of ail- 
ment be taken fiom itus enumeraiioa, that the 
cotUTBry to that which Mr. AttonlBy interred it 
to be coochided : that is, ibaC at felony is a 
(icaur cause than surety of the peace, so the 
Mattel (thereupon tbe king's command was 
fnMmded, ma uraatrr than felony. Bat in 
truth this kind of argument holds neither way 
here, awl whatioeTer the cause were, why the 
king comiiHitcd bim, it waa impossible for the 
court lo konw it : and it also might b« of very 
high moment in matter of state, and yet of &r 
less nature than felony. All which shews, that 
this precedent bath its fall force alwi according 
M it was first used in argumeot by the house (^ 



To the third of these, which is Binck'* case 
ID the 35 U. 8.ilo(. 33, tbe objection was, that 
tbe« was a cause eipreiied ' pro luipicioue 
' feloni« :' and though ' pm ajiis oauiis illus 
' mowaoiibus* were added in the return, yet be- 
cause in the course of enumeration, tbe general 
name otaiiit coraiog after particulars, iodudes 
tbiup of less nature than tbe pnrticuUr doth, 
therefore in this case suspicioii of felony being 
tjw fint, the other cause* afterwards geserally 
mentioned mi|st be intended of lets nature, for 
which the pnsoner wat bailable, becoiMe be 
aas bailable (nr the grsnter, which was lut- 
picii)n of felauy. Hereunto it *as replied, that 
ibe arguraeot of enumantion in ihese cote* is 
of no ntomait, as it next before shewed :- and 
that although it were of auy moment, yet aiia 
Kaw«y though test than fpbjity, rni|{lit be of 
veiygrcatcoDsequeDce in matter uf state, which 
it pieuaded usually upon genn^ returat of 
couaaand, without cerise shewed; and it is 
most plain, thal^ tbe court oould not possibly 
know the TCMona, why tbe prisoner here was 
ocxmiiittad, and yet they bailed him, without 
loohing fivthtr after any unknown thing under 
that title of matter of state, which might as mii 
knjt, bqrn in tfiis case at in any other whaCeo- 

To tiie fourth of these, which is Orerton's 
Cat^ in Pateh. 9. et S. Phil, et Mar. Rot. 5B. 
And lo the fifUi, wbicfa is Newport^* C«ie, 
PMck. Phil. «t IIAiw. 4 et £ Rot. 46, on^ theae 



[ISS 

objections were said over again by Ht. Attor- 
ney, which are mentioned in the Argument 
made oui of tbe PreceJents in behalf of the 
house of commons at the first conference : and 
iu the same arguoitnt are fully and clearly 
saUffied, as they were in like manner now again, 

Tu the tilth of these, which was Lawrence's 
Case, S Elli. liol. 35, and the seventh, which 
is Constable's, Pasch. 9 Eliz. Rot. 08, the sane 
objeciions were likewise said over again by Mr. 
Attorney, that are mentioned, and are dearly 
and fully aaswered in th^ argomenl made at 
ihe conference out of precedenu in behalf of 
tbe Itouse of commons ; tlie force of the objec- 
tion being oiJy, chat it appeared in the margin 
of the Roll, chat ihe\«onI Pardon was written : 
but it i) plain that (he word there hath no re< 
ference at all to (be reason wiiy they were 
bailed, nor could it have reference lo the cause 
why they were comroitled, in regard the cause 
why they were c<HDmilted is ullerl; unknown, 
and .»n« not shewed. 

1'p the elghtli of these Precedents, which wka 
Browning's Case, Pasch. SO Eliz. Rot, 73. it 
was said by Mr. Attorney, that he was bailed 
by a letter from the Lords of the Council, di- 
rected CO the Judges of tbe Court ; but bong 
asked for (hat le(ter, or any testimony of it, he 
cotthl produce none ac sU ; but said, be thowf bl 
the testiiDouy of it wat burnt, among many 
other tiling of the Council- table, b1 the burn- 
ingof the Baouu eting-Uonsc, 

To the 0lh, beiug Harecoort's Case, Pasch. 
40 Elu. RuL 69, tbe telf same objection wat 
made by him, but no warrant was sbtwed tu 
maintain bis Direction. 

To the 10th, n-bich is Catetbv't Cate, in so- 
cetimc UUl. 43 Eliz. he said, That it was by 
' direction of a privy-seal from the queen : and 
to that purpoie be shewed the privy-seal of 4S 
EJiz. which is at large among the transcripts of 
tlie Recordt concerning boils taken is cases, 
where the king or the lords awented. But it 
was replied, I'hat die piivy-eeal wat made only 
for some particular gentlemen mentioned la it, 
and ibr none other, as indeed appears in it: 
nnd then he said, thai it whs likely that Catrt- 
by here bad a privy-teal in this behalf, because- 
those other had so : which was all the force of 

To the Itth of these, which is Beckwith'* 
Case in Hill. 19 Jac. Rot. 153, be said, that . 
the lords of the council sent a l^ler to ihe 
court of King's-BeQch to bail him. And indeeA 
be produced a letter, whicfi could not by any 
toeao* be toand what tbe arguments were 
made at the Rnt conferencei and lliis letter, 
and a copy, of an obscure report made by « 
young student (which was brought to onotho- 
purpoae, at is hereafter shewed), were (he- 
only diings written of any kind that Mr. Attor- 
ney produced, beside* the particulars shewed 
by tbe bouse of commons at the first conler- 
enco. To this it was replied. That tbe latter 
wiaa of DO momeni, being only a direction to 
the Chief-Justice, and no matter of Record, 
nor tay WSJ cooceming tbe rett of tbe Judge* : 



139] STATE TRIAU, 3 Chaxle* I. l03S.~Prvaedmp m IWioMnt rtlaAig to [140 



■nd besidca, either the prisoner nns bBJlitble 
hy the law, or not bailable.; if bailable 
bj the law, then ha wa< to be hailed nitb', 
out nay such letter ; if not bailable by the Ian, 
then puiiily the Judgeii conld not have bailed 
• hiiD upon t^e letter, without breach of tbeir 
oath, which is, ' That they are Co do juKice ac- 
* coi(lin)> to the law, tviihont having respect lo 
. ' a"5<^<iDl0lind wbataocTer.' So tliat the letter 
in this case, or the like in any other case, it for 
point of Uw u> no purpose, nor hath any weight 
at all by way of ob)ection agninst what the 
Itecord and the Judetnent ofthe court shew us. 

Tu the ISth and last of these, which is sir 
Thomai Monson's Case in the 14 Jac. Hot. 
14T, the same objection ofily was said over hy 
him, which was mentioned and clearly answer- 
ed in the argument ; and that one ground which 
is infaUihle, ' That the judgment upon a return 
' is to be made oniy out ofwhat appears in the 
' body of the return itself,' was ^ain insisted 
upon in this case, as it was alio in most of the 
rest. And indeed that alone which is must 
dear law. Fully satisfies almost all tind of ob- 
jections [hat have been made to nny of these 
precedents; which thus rightly understood, are 
many ample testiinonie* of the Judgment of 
tbe Court of KingVBcnch, touching this i^eat 
point, in tbe several ages, and rei<;ns of the se- 
veral princes under wMch they fall. 

Afler his Objections to the twelve, and tbe 
replies and satisfactions given to these objec- 
tions, he came next to those wherein tlie as- 
sent of ibe king and privy-council appears to 
have been upon the eolaigeriient : but he made 
not to an}! of these any other kind of ohjeciians 
whatsoever, than suco as are mentioned and 
clearly answered, as they ware now aoain, in 
tbe Argument made at the first Conference. 
And for so much as concerns letters of assent 
or direction, the snme was here said again by 
way of reply to liim, as ia hefhre said touching 
the latter in Beckwith's Case. 

After theje were dispatched, he came to 
ui^e the eight Precedents, which seemed to 
make fVir the other side gainst tbe Resolutioa 
of tlie house of cnmmons : which eight were 
nsed, and copiMoftbem aho were^ven intothe 
lords at the arit Conference. 

Of these eight, the first four were ur^ed by 
him, as being of one kind ; the difierence of 
. thtm only being such, that, save only in the 
names of prisons and of persons, tbey ar« but 
the self- same. 

To the fbrce of these fbor be objected thus ; 
that Richard Everard, for the pnrpoie, in the 
first of them, which is S U. 7, Rot. 18. Roger 
Cherry In the second of them, which is 8 H. 7. 
Rot. 13, Christ. Burton, in the third of them, 
which is 9 H. 7, Rot. 14, and George Unewirl^ 
in the fourth of them, which is 19 H. 7, Rot. 
13, yitte returned into the Kiilg's-Bench upon 
several nrits of Habeas Corpus, to have been 
committed and detained in the several prisons 
whence they tame ' per mandatum domini 
' r^ls,' and that upon that Houra they were 
•ommitted to ilw manhal of th* King's-Beocb ; 



and that however it had been objected against 
those precedents, tbat this kiud of commitment 
was by the course of that cotirt always done 
betbra the baiting of the prisoner, yet, that it 
did not appear that they were bailed. 

The Reply to this objection was. That by 
constant course, of King^s-Bench, whosoever 
came in upon Habeas Corpus, or otherwise 
upon any writ in that court, cannot be bailed 
until he be first cotnmitted to tbe marshal of 
that court; and that tbence Itwas, tbat all those 
four were committed to the marshal, as appeir« 
by the entry, ' Qui committitar Marescallo, 
' &c.' which is the usual entry in such a case, 
and that the clerks of that court acknowledge 
this course and entry to be most constant. So 
that ail the inference, that can be made oat of 
these four, is, thst fonr prisoners being brought 
from four several prisons by Habeas Corpus 
into the King's-Bencb, and returned to stand 
committed ' pur mandatum domini r^is,' were 
to far from being remanded by the law, that in 
nil these four cases, tbey were first token fnta 
tbe sereraj prisnns, wherein they had been de- 
tained, by such a general command (whkh 
could nut have been if they had not been «d- 
judf>ed in every one of tbe casei to have beoi 
bailable by the conrt), and that this commit- 
ment of tbtra to the marshal of the KingV 
Beach, was tbe first step towards the bailing oT 
them, as in all other cases. But that it ap- 
pears not, that either tbey ever demanded to 
be bailed, or that they were able to find suffi- 
cient bail ; and if they did not the one, or could 
not do tbe other, it mav follow indeed that 
they were not bailed. But this commitment 
to the king's-Bencb being the fir«i step to tbr 
bailing of Uicm, as by the constant course it ia, 
shews most pls^y that they *tte bailable by 
the law, winch is tbe only thing in question. 
So tbat although these fonr precedents vrere' 
ranked among them, that may seem to make 
against the Resolution of the house of coimuons, 
which was done, both because thejr have tliis 
smalt colour in them for the other side, to any 
man that is not acquainted with the nature nnil' 
reasons of the Entries, and coutsesoftbe court 
of Klng's-Bench, and also because all or some 
of diem had been used in the late great case 
in the KiogVBench, as precedents that made 
against the liberty claimed by the subject ; vet, 
in truth, all four of them do fully prove iheir 
Resolution ; tbat is, the^ plainly shew tliat the 
ci>uit of King's-Beoch m every one of ihem 
resolved, that the prisonets so committed wer* 
bailable, otherwise ihey had been semanded, 
and not committed to the marshal of tbtt 
KingVBendi. And this was the Answer tn 
tbe Objection made by Mr. Attorney upon 
those four precedents, being all dF the time of 
king Henry the seventh. 

To the '6hh of these eight, being Edwonl 
Po^'i Case, in T H. 8, RoL 93. Mr. Attorney 
objected ihua : He said, that Edward Page was 
committed to the Marshalsea of the Housbold, 
' per mandatum domini regis ibidem salvo cns- 
< todteod, &c' 'Qwaommittitor Alarescall*, 



STATE TILIAI2, 3 Charles 1. \0'2i.—tke LAerty tif ike Street. 



'&C. Ho^tii domioi regis.' Bj which it np- 
peutth, u be said, ihat the oourt renmndcd 
bim bwik ta tbe prisoD of the Manbalsea of 
tk Houtbold : and he «ud, that wberenu it hnd 
bceo objected at the first coDfereact, that lliere 
wn lome mistaLing in the entri«; be can- 
cured, indeed, that there nas ■ miUBkiiig, but 
it WIS that the clerk Lad eiiteied ■ comnuttitur' 
Ibr ' rcmittitDr,' and that it ahuuld iiave been 
' Qui temitulur MarMctJlo Hospitii domini re- 
'pi:' lot wbeoerer tbey remanded the pri- 
•oeer, ■ nmittilur' and not ' commiuitilr' thould 
be entered. And that miitaking being so rec- 
tified and uadentood, he coDceived it iva* a 
direct prccedeDt againU the Ketolation of tbe 



[US 



To ibii it nu umrered b; the Gentlemen 
of tbe house of commoiu, That there wu no 
doubt, indeed, bnt that a mittake was in [he 
tatij bj the clerk, but that the miitaking naa 
quite of another Datore. The addition of thoie 
■mnli, ' boapitii dom. rt^is,' was tbe mittak- 
lag, and tbe entrj bIiouTcI have been, ' ^ui 
* commitliLur Mareuollo, &c.' onlv ; that u, 
be was comolitud to tbe Marshal of the King's 
Bench; and so iodcett the force of this prece- 
dent should be but just the Eunc nitb the first 
ibur; but tbe icnorance uf the clerk that en- 
teted it, knowing oot huw lo distii^uiab be- 
tweeo the Uarslial of the Houihuld and tbe 
Marshal of the King's Dench, was the cnuse of 
iheedditionof tboevrordi, ' hoipitiidoa. regis.' 
And to confimi fully this kind of interpreta- 
tiao of that precedent, and of tbe mistaking of 
it, it was observed h; the Gentlemen of the 
UonseofCommoas, that there is in the margin 
of the BoUoQ infdhble character that justiiies 
■o iDuch. For by tbe ciiune of that court, 
wbcnaoever a prisoner is committed to tlie 
Marshal of the King's Bench and not remand- 
ed, the word Mnracalio is written in the margin 
short bj Marr turned up : and tliat is never 
wriiten there, hut when tbe meauiog and lenie 
oflhe cnir; is, that the prisoner is committed 
to tbe ptisan of the same court. Now in this 
ease ' Marr' ' in the margin is likewise written : 
which moM dearly shews that ibe truth of this 
case was, that ihis PaRC ^'■i cotnmitted to the 
Manbai of the King's Bench, and nut remand- 
ed; whtcb if k had beenf neitiier could the 
entiy have been ' commiltitur,' nor should the 
margin of the Uoll have had ■ Mart' nriitni 

And thus they have answered Mr. Attorney's 
nlgeutiona touching ibis precedent, and cod- 
duded that now, besides the first ibur of the 
eight, tliey had another, and so five to prove 
that B prisQDer committed ' per mindutum do- 
* mini regis,' generally was bailable by ihe 
jndeiiientof the court. Uowcver, it appear! 
not in these particulani that they were bailed ; 
which perhaps they were not, either because 
they prayed it not, ur because they could not ! 
fiuJ tuOicicnt boil. 

The sixth of tliese Precedents, beuig the 
caseof ThomiiiCsesai', in tbe 8 Jac. Ke^s Rot. ' 
M. iil. Attiiruej objected tu it thus : TImI I 



CKsar being committed ' per mandatnm do- 
' mini i;egi9' to the Marshalsea of the Hous- 
bold, was returned upon Habeas Corpus to be 
so comniiited, and tberefure detained in prison, 
and that the entry is, ' Qui cominittitur pri- 
' sons Marescal, prasdict.' by which it appear* 
clearly, . iliat ha was remanded lo tbe sam* 
prison from whence be came. 

To this tbe Gentlemen of the House of Com-- 
mons gave this answer : 'J'hev said, (hat tbe 
ubual entry of a 'remittitur, when it is to. 
shew that tlie court by way of judgment, or 
award upon a resolution, or debate, remands 
tbe prisoner, is, ' remit litur quousque secan- 
' dum I^em rieliberatus fuerit :' but when 
they advise, or eite way U> tbe keepec of tli« 
prison lo unena his return, or the like^ tliera 
the entry is only ' remittitur' generally, or 
' remittitur prisons predict.' But it was in- 
deed affirm^ by Mr. Keeling, a clerk of great 
experieDce in that court, thnt the entry of a 
' remiitiiui' generally, or ' remittitur pri^ioniB 
' pnedictz,' was indifferently used for the same, 
as ' remitiiior quousque,' &c. Yet it was ex- 
pressly shewed byllic geutlenieuoftbe Uaui>cor 
Commons, tliut there vros sometimes n dilfer- 
ence, and ihat io h might well be in this case. 
Fur in the lait of these eight precedents, which 
is Saltonstall's Case, they observed that ' rc- 
' mittitur prisonm nrKdicim' is often used ; and 
that it is twiceusertonly for a remanding, during 
the time that the cnurl gave leave Id tlie War- 
den of tlie fleet to amvnd his return ; whicli 
shews plainly, that though sometimes ' reinit- 
' titur' generally, and ' remittiiur quousque,' 
&c. may mean the same, yet sumetimes it doth 
nut. And that, in ibis case of Cssar it doih 
not menu any oiher, but ordy so much as it 
dutb twice in that of Saltonstall's case, was 
proved also by a Rule of the court, which was 
cited out of the Itule-baok of the court of 
King's Bench, by which rule the court expreisty 
ordered, that unless the stewinl and mar^al 
of the Iloushold did lufficiently return the writ 
of Habeas Corpus lor Cnsar, Inat he should lie 
discharged, llie words of tbe rule are, 'Nisi 
' ptcdicti Senescallus et Marescallus hospitii 
'domini regis sufflcientur rctumaverint brere 
' de Habeas Corpus, Tho. Cs»«r die Mercurii 
' proxirOK post q~uindenam Sancti Martini de 
' prisona exonerabitur.' And this was the opi- 
nion of the court : which shews that tbe court 
was so far ftom remanding him upon tbe return, 
that they resolved, that unlets sotne better re- 
turn were made, Ibe prisoner should be dis- 
chni^d of bis 6rs( imprisonment, though it ap- 
peared to them out of the bady of the return . 
(upon which they were onlv lo judge), that be 
was committed ' per mandatum domini regit' 
only. And the rule not only sliews tbe opinion 
of the court then to have been agreeable with 
the Resolution of the house of commoos, but 
also proves that ' Hemittitur;' generally, or 
' Remittitur prisonte pnedictie,' doth nut b1< 
ways imply a remanding upon judgment or de- 
bate. And this answer was given to this of 
CiESar't Case, that is tbe titth of [bis number. , 



143] STAl^ TRIAI^, 3 Csahles I. 102S.r—FH>eudi»ig,vtPaTlianiatirtltahigio [144 

icieir, tbni donbtleM th«y wouJd hsTc Temanded 
liim upon that mlnne; Ibr tlieo t hejr needed not 
nt all tn have stood upon the other part of Ibe 
return in this case. So ihat out of Lhe Record 
itself It Bppeara fully, tliHt tlie ooart conceited 
Che return to be insufficient. 

So the Gentlemen of Ilie Hoeae of Cnmmons 
included, that their had a great number of ' 
Precedeuti beaiden diyerr acts of parliament, 
and Reasons of Common Law, agreeable to 
their Reaolution ; and that there was not ona 
precedent at all that made against tliem, -but 
indeed, thnt almost all ihnt were brought, as 
well agaiuM them as for them, if rightlj ander- 
ttood, made fully for the mainienaoce of their 
Reiolution : and ttiat there wa« not one tnant- 
ple or precedent of a RimittitDr in any bind 
opon the point hirfonj that of desar's case, 
which is before deared with the re«(, and ia 
bnl of late time, nnd of no tnomerit againft the 
Remluiion of tlie Huuse of Commons. 

And thut, Inr m much n» coni-emed the Pre- 
cedent* of Record, tbe fiist dny of the Conter- 
ence desired by the lords ended. 



Tbe KvcHlh is the Ceisc of Jmnea Demetrius. 
It iras 19 Jae. Rot. 153. Mr. Attorney ohject- 
ed timt this Demetrius and divera others being 
, hrewen, were comntitted < perconcilium domini 
* regis' to tbe Mnrshnisea of the Ilousliold, and 
that Hpoii the commjunent so generally return- 
ed, tliey were remanded, and iliat tha entry 
was ' immediate remittitur pnefacto mareMxllo 
'pnedicti botpitii;' where he observed, that 'im- 
iBediatfe'ibews that tbe Judges of that time were 
■0 reMlvcd of this question, thn they rcmandqd 
them presently, asmen that vtdl knew what tbe 
law wa* herein. 

Hereunto the Gentlemen of the Hoose of 
Commons euve these Answers. 1. Thnt the 
Remittitur in tbi) case is but ai the Other in 
Ccaar's, and lo proiea nothing against them. 
3. Ybat ' immediatfc' being added ' 



» the anlhority of tbe precedents to be of 
DO force in point ^of law; for judgments and 
Bwarda given upon delitwmtion only nnd de- 
batn are proofs and arguments of weight, and 
not any sadden act of the court without 
debate or deliberation. And the entry of ' im- 
mediate' being propoaed hy Mr. Keeling, it was 
confirmed by him, that by lh.it entry it appears 
by this course, that the remanding of him was 
the lelf-aame day be waa brought, which, as it 
vras said by the Gentlemen oT the House of 
Communs, might be at the rising of the court, 
or upon advisement, and tbe like. And i)iis an- 
swer waa given to thi) precedent of the brewers. 

The last "of the eight, to which Mr. Attor- 
ney objected, is ShI ton stall's Case, in the 13 
Jac. rvgis. He vras csmmicted ' per manda- 
* tmnduminorum regis de prtralo concilio:' and 
being returned by the Warden of the F!-'et to 
be so, ' Remittitur prisons pradicti ;' and iu 
the 13 Jnc. in the same case there is ' remit- 
titur' generally in tbe roll. And these two 
make but one case, and are ns one precedent. 

To this the Gentlemen ofihe House of Cnm- 
roons answered, I'hnt it is true, the Rolls have 
such entries of ' remittitur' in them generally, 
but thnt proves nSthino, upon tbe reason before 
used by them in Cenars case. But also Salton- 
atall was committed fui another cause besides 
' per maudalum dom. re^s,' a contempt against 
an order in the chnncerj, nnd thnt was in the 
return alsn. And besides the court, as it np- 

Cnrs in the record, gave sei-eral days lo the 
•rden of the Fleet !□ amend his return, 
which they would not hare done, if they had 
conceived it sufficient, for that which is auffici- 



To this Mr. Attofoet replied. That they gave 
bin) a day to amend his return, in respect^of 
that part of it which concerns the order in 
Chancery, and nrtt in reiipectof that which was 
' per mnndntum dom. re^s.' But the Gentle- 
, men of the Hou^e of Commims answereit. That 
that appeared not any where, nor inde«d i% it 
likely. at all, uor can be reasonably so under- 
stood ; because if the other return ' pet 
' maodatuut dom, regis' bad beeo aiifficient by 



The next day, they desired another Confer- 
ence with the House of Comraofti, at which it 
pleased tlie Committee of both hnnses to hear 
Mr. Aitomry again make wliat Ol^ecUons be 
could against other parts of tbe Ai^^ument 
formerly dehvered from the House of Com- 
mons. He Ilien objected against tbe Acta 
of Parliament, and, against the Reasons of 
Law, and his objcciions to those pans H'ere 
answered, as it appears hy the Ansivers by or- 
der given into the House of Commons by the 
gentlemen that made' them. (Vide postea.) 
He objected also upon the second day neaiost 
thesecund kind of Precedents, nhicbareReso- 
iutions of Judges in former tunes, and ant of 
record, niul brought also some other teadno- 
nieaofibe opinionsof Judges in fanner times, 
touching this point. 

First, for that Resolution of all the Judges of 
England in 34 Eliz. mentioned and rend in ths 
Arguments at the first Conference, he said. 
That it was directly against tlie Keaolution of 
tbe Hnuse ofCummons, and observed the wortt* 
of it in one place to be, that peraoni ao com- 
mitted by the king, or by the council, may not 
be delivered by any of the courts, &c. And in 
another, that if the cause were expressed, ei- 
ther in general or in specially, it was sufficient ; 
and he laid that the expressing of a cause in 
generality wai to shew the king or the conncil's 
command : and to this purpose, he read the 
whole words of that Resolution of the Judges. 
Then he objected also, thnt in the Rei'Ort of 
one Roawell's Caie in [he KiiiK's-bench, in 13 
Jac. he found that the opinion of ifae Jud^et 
of that oourt (sir Edward Coke bein;; ibm Chief 
Judge and one of iheiu) was, that a prisoner 
being comtnitted ' per mBudalum dom. re^ia,* 
or' privati cuncilii,' without caose shewed, mad 
so returned, could not be bailed lircause it 
might be matter of state, or ' Arcana imperii,* 
for wbicb he stood cominiiud. .And to tbi> 



W] STATE 'miALSj SCbavlesI. H}2i.—aeLiia1y0tiu!SulyKt. 



[146 



(bo he added, ui opinioo be fbnnd in a Journal 
ID tbe House of CammDm of 13 Jac. nhecvin 
sr Sdimd Coke ipeaking to a Bili prefinTed 
forihe eiphmatiao of Uagaa Charca lunching 
mprBomticiii, Mid in the aame houM, That 
one M tOmmitted could not be inlarecrl b; the 
hw, becinse it m^ht be matter ol state for 
■hich he mi comnuued. And unongst these 
djectioBt of tbe other nature aho, he spake of 
lie eoufidencc chat was ibewed in beholt'oF the 
Home of Commons : aa'd he $aid) it nas not 
canfidencB on eidter part could add anj thing 
Is the detenoiaaiion of the question : but if it 
codd, tliat ha hadumachreaMiD of conRdence 
be wt othtr tide agaicit the Resolalion of the 
House of CommODi, groandiog himaelf upou 
the fnce of hit olyectioiia, ubicb, ai he coa- 
cnTed,had ta veakensd [be aifuiiienM of ihe 
House of Conunons. 

To thia a replj wu made ; and 6rU it wBi 
nd to the lords an the behalf of the Houic of 
Comniona, Ttiat noCwithttanding uaj thing ;fet 
b^ected, the; were upon dear reason still coa- 
fidcnt of tbe truth of their first Reeolutinn, 
troanded upon to iOst examination, and deU- 
berUion taken b; them. And it was observed 
10 tba lords also, that their confidence herein 
miof another nature, and or ureaier weight, 
than anj confidence that could be eipreued 
hj Mr. Attornej, or whomsoeTer else betnij of 
In nujestj's counsel leanied. 

To vbidi purpose the lords nere desire'd to 
tAt into tbmr memories th« difference between 
Ac prMent qualities of the Gentlemen that 
ifAks in behalf of ihe House of CommoiiE, and 
aCtbe King's learned Cnuosel ib their speaking 
tfaetc, tiowiocver accidentallji they were boili 
BKQ or the same profession ; Ibr the King's 
Connsd spake as counsel perpetually retained 
bjfre, and if tbe J made glosses or tthnt adrin- 
ti{eoiis interpretation soever for their emi 
pin, ibej did but what belonged to ttieir place 
and qnaticj, as Mr. Attorney had done. But 
the Gentlemen that spake in behalf of the 
House of Commons, came there, bound on tlie 
BBC side by the trast reposed in ibem b; their 
eoiDCr; that sent them, and on the other tide 



Kighls and Prert^tives of tbe Crown ; so that 
*K0 in tbe point of confidence alone, those of 
(btm<that speak as maitjed counsel b; perpe- 
toal fee, and those that by their place being 
Mmitted to Speak, are bound t« utt«r nothing 
hut truth, bdih by such a tnist and such an 
ouii, were no way to be so compared or coun- 
terpoised, as if the one were of no more 
weubi dian the other. 

Aai then the Objectiont bviiOTe meotioaed 
*Re alto answered. 

Vta that uf tha Resolution of all ibe Judges 
Of England in 34 £lii. it was shewed, that 
Vinnly it sgreed nith the Retotulion of the 
DMie of Commons : for althnugb inderd it 
^ht have been expressed "iih more parspi- 
«ntr,y«thewordsoftt,as theyare,solBciently 
<bew the meaning of it te b« ao otherwise. 

TDL, IK, 



To thnt purpose, Tiesides ihe words of tlie whule 
frame ol tins Resolution of llie Judt^es, as it i» 
in the cupy transcribed out of the L. C. Jiiv 
tice Anderson's Book, nrltlen in iiis own hand, 
which book Vas here offered to be shewt^d i^ 
the behalf of the bouse of cotnmnns; iiims ob- 
served, that tlie words of the fitsC pRrt of it 
shew plainly, that all the Judges of Eugiond 
then resolved, that the prisoners spoken of in 
the first part of tbeir Resolution were oa\]f 
piisonera committed with cauie shewed ; for 
they only say they might not be delivered tij 
any court without due trial by law, and judg- 
ment of acquittal had; ahidi shews plainly 
they meant that by trisl and acquittoi they 
might be delivered. But it is clear (hat no trial 
or acquittal can be had, where there is not 
some causa laid to their charge, for which tlu..- 
onght to stand committed. Therefore in that 
part of tbe Besolution »ucb prisonera are only 
meant as are committed with cause shewed, 
which also tlie Judges in that Reiotution ex* 
pressly thought neceisnry, as appears in tlu: 
second part oF their I^esolutiou, wbc-reiu they 
have these words : ' If upon tbe return of iheir 
' Hnbeap Corpus, the cause of their cuimuit- 
' ment be certified to the Jud;;es, as it oujlit to 
' be, &c.' By which words they shew plainly, 
that every return of a commitment is iii3u&-' 
cient that bath not a cause &liewed of it. And 
to that which Mr. Altornev said, as if the cause 
ncre tnfGciently expresscti in generality, if the 
kino's command or the council's were e:(pressed 
in it, as ifthat were meant in the resolution for 
a sufticient general cause j it whs answered. 
That it WHS never heard or in Ian-, that the 
power or person that, committed the prisoner 
was understood for the ' cauia captiouis' or , 
' cama detentionis,' but only the reason why 
that power or person committed the prisoner. . 
As also in common speeili, if any man ask m liy 
or for what cause a man stunds csmmitted, tiie 
nnswer is not, that such a one committed him, 
but his oflence br some other cause is under- 
stood in the queuioo, and is to he shewed in 
the nniwer. But to say that such a one com- 
mitted tlw prisoner, is an answer ooly to tbe 
question, who committed btin f and not wliy, 
or fnr what cause he stands so conimitleil? 

Then for that of tlie cnuy of the Report, in 
13 Jac. shewed foi th by Air. Attorney, it wai 
answered by tbe Gentlemen of tlie House of 
Commons, That the report itself which had 
been before seen, and perused among many 
other things at a committee made by the liouije, 
was of sli);ht or no authority, for that it was 
taken by one, wbo was at tiiat lime a young 
student, and as a reporter in the King's Bench, 
and there was not any other report to be found 
that Hgreed with it. Secondly, Ahhough tbe 
repnrls of younp students, when tiiey take the 
words of Judges as tbey f^l from tlicir moutlls 
at the Bench, ai^l in the tauie person and form 
ley have spoken, may be of good credit ; 









ported: but in truth there being three cases at 
a time in the EingVSench, one EoswcU'scase, 



Hi] STATE TRIALS, SCuAmiMl. i62t.—Pr<KeediiigiiaPaTlumntrdotvigto [!« 
ihey 



,Aileii'», "lid SftltontlaU's c«ie, every of which 
hnil aomclliiiig of Ube nnlure in it, the ttudcnt 
^having been presFnc ia the court, mnde Up llie 
frame of one report or ote out uf all three in 
liU own wortls, and so put ii iniu bis Buolt : to 
tiM there is not n worti in the report, but it is 
frained accixlinf; to the student's fancy, as it is 
written; and nothing it expressed in it, as it 
Iciime from tl* mouth of the Judges, otherwise 
,'thiiii hi* ftncy directed iiim. 

Thirdly, There are in iho report plain fals- 
hoodj of matier of fact, which are'io be Bltri- 
butcd either to the Judges or lo ihe reporter. 
It is most likely by all reason, that they pro- 
ceeded I'ruin the Reporter's fault; howsoever, 
the^e mHlleni of fnlshund shru sufficiently that 
the ciedit of the rest it of li^Jit vulue. Ii is 
a:ud in the report, that Ilarecuurt beini: com- 
biittrd by the council, was bniled, iii 40 Eliz. 
upon a privy-seal or a Utieri'wherena in truth 
there is iio bucIi thing. And it is said there, 
thitt kiuri of IrlteiB me 6led in the cronn-oftice, 
whereas hi tniih therf was not any such kind 
of letters filtd there in any case whatsoever. 
That Hesoliiiiou ol the Judges in SI £liz. is 
mis-cited there, and made in 36 Rliz. And it 
j; hail! tbert, that by that Resolution, a prisoner 
retiinicd to be cmninitti d by the command of 
the kin; , might uot at all be delivered by the 
court ; u hereas no sudi thing is couipre bended 
in tiiat Resolution. 

But ihiit which i* of most moment is, that 
howsoever the truth of the report were, yet 
the opinion of the Judges be! iii; sudden, and 
without any debate had of tbe case, is of linht 
■noriieiit: lor, in dithcidt points especially, tl]e 
mrst prate and learned men living may on the 
suddtn lei i'nII (and lliat nithout any disparage- 
ment to them) such opinions as iky may " 
mid niighi to change upon fiirtiier inrjuiry, 
minntiiin, and full debate had before tbein, 
mature deliberntion tal.n by ihem. 
plainly in that ol 13 Jac. there is not so much 
ns a pretence of any debate at the bar 
bench. All that is reiijrted lo bnve been, 
' Imported us spoken ol the sudden. And < 
»nv men lake such a sudden opinion lo be of 
value B|{ain't solemn debates and mntui'e 
' berntions since had of tin point? And indeed 
this tire.it point, and all circumstances belong, 
ina to it, have within this half year, been so 
fullv exuiiiined nnd searched into, tliat ii 
wefl be affiriiied, that the most learneil 
whi't-otitT that hath now considered of it, hath 
wiihin that time, or might have, learned i 
reason of sutisfactbn in it, than ever before lie 
met »iih. Therefore the sudden opinion of 
the Judges lo the contrary is of no value here, 
which alsri is to be said of thai opinion obvi- 
Audy (teliveied in the commons bouse in 18 
.Tac. ns Mr. Attorney objected out of the Jour- 
nal of the house. But besides, neither was the 
Iruih of that report of that Opinion in the 
, Joiirnirl any way acknowledged; for it was said 
in'lietmlf of tbe house of commons, that theii 
Journals were for mHtters of Orders and Reso- 
lutiljns of the hoose of such authority, as tliat 



their records. But for any parti- 
cular man s opinion, noted in any «f them, it 
was so far from being of any sutburity with 
them, that in truth no particular opinion is at 
ah to be entered iu tliem, and that their clerk 
offends, whenever he doth to the contrary. 
And, to conclude, no such opinion whataoevpf 
can be sufficient to weaken the clear law com* 
prehended in tliese resolutions of the house of 



10 many precedents of record, and the re- 
ion of an the judges of England ; and 
agjinsC which not vne law, written or unwritten, 
not one precedent, not one reason hath beea 
brought, [hat makes any thing lo the contrary. 
And thus ended the next day of the Confer- 
ee desired by the lords, and had by a Com- 
mittee of both houses. 

Se^eant AsDLET'sAncDMEHT, seconding Mr. 
Attorney, in the behalf of his Majesty. 
I hope it will be neither offensive nor lediou* 
to your lordships, if I said somewhat to second 
Mr. Attorney ! nliich I the rather desire, be- 
cause yesterday it was taken by the Gentlemen, 
aiid argued <>n the bibalf of the Commons, 
that tbe cause was as good as gained by iht^m, . 
mid yielded by us, iu tbat we acknowledged 
the statute uf Alagna Charla, and the oilier 
subsequent Stntutts, to be yet in force : for od 
tliat they enforced tiiis (general conclusion ; 
' That (lierefore DO man could be commilted, 
' or imprisoned, but by due process, presenc- 
' inent or indictment.' Which we say is » 
Mm icfuitur upon such our acknowledgment; 
for then it wuuld follow by necessoiT conse* 
quence, that no imprisonment could be Justi- 
fied but by process uf biw, wiiicll we utterly 
deny. For in the cause of tlic Constable cited 
by Mr. Attorney, it is most tleiir, that by tbe 
ancient law of the land a constable might ii 
t^io, without any watraut, arrest, and rcstrtuD 
a man lo prevent an affray, or to suppress ii. 
And so is ilie authority 38 lien. 8, Brook's Ab- 
stract. So may he, after the nlTray, apprehend 
and commit to prison the peisnn that liaih 
wounded a man thnt is in peril of death, and 
that without tvarrant or process ; as it is in 38 
E. 3, fol. 6. 

Also any man that is no OScer may appre- 
hend a felon 'A-ilbout writ, or warrant, or puisue 
him as a wolf, and as a commun eneinv lo th« 
Commonwealth, ai the Book is 14 Hen. 3, 
fol. 16. So miglit any one arrest a night- 
walker, because it is for the common profit, as 
the reason is given 4 Hen, 7, fol. 7. 

In bke manner the Judges in these several 
Conrts may commil a man, eitbci for contempt 
*or misdemeanor, wiihoul either process or war- 
radt, other than ' Take him Sheriff,' or ■ Take 
him Marshal, or Warden of tlie Fleet.' And 
the adversaries will not deny, but if the king 
will aliedge cause, he may commit a man ' per 
' mandntum' as the Judges do, wilhout process 
OT warmnt. — And various are the ctues tliaC 
may be instanced, wherein tbeie may b« a 



149J ffTATE TRIALS, 3 Charlei 1. 

Iiwfid comniitmeiit without proceii. Wbere- 



bbited bj the Ian, 

Whicb being jjranled, then the questinn will 
tptl^ be made. Whether the King or Council 
nsj coniinit to prison ' per lejiem lerra-,' were 
onlf that a part of the municipal Ian of this 
reilDt, whicb we call the Coouuon-Law ? p'or 
ibeiT m also diven Juriadicliotu in this king- 
dom, ohicb are also reckoaed the law of ihe 
hnd. 

As in Cawdr^'s Case in Coke's 5th report, 
faL 1. the lirsc ecclesiastical luw is held ihe 
tiwofthe land, to punish blasphemies, schisms, 
Imciies, simony, incest, and tt>e like, for a gaoil 
mson there rendered, nz. That otherwise ihe 
kins should not have power to da justice to liis 
nhjKts in all cose^, nor to punbli all crimes 
wiitiin"hts kingdom. 

TIk Admiral's Jurisdiction is also Itx terra, 
ordiiD^ done upon the ICB; but if the; ei- 
cnd [Iwir jurisdiction, Bprohibitino is awarded 
npoD the Statute of RuUui JiierAofflii; bjr which 
upears thai the statute is in force, ai we hace 
ickDowledged. 

The Martial Law likewise, tboDgb not to be 
eiercised in times of peace, nhen recourse 
. ma; be bad to the binp s courts, yet in times 
Df iiirasion, or other tmies of hostility, when 
in mnj-royal is in the field, and oHoDces are 
eooiiBitted, which require speedy refiinuaCion, 
•sdcannotei peel the solemnity of legal Trials j 
Cbea sDch imprisonment, execution, ur other 
jsstics done by the Uir-martia) is wariantable, 
Jbritia then the law of the land, and is jut 
putjun; which erer serves for a supply in the 
defrct oF the common law, when oniiuary pro- 
ceeding cannot be had. 

And so it is also in the case of the Law of 
dieHerchant, which is mentioned 13 Edw. 4, 
bl. 9, lO, where a Merchant-stranger «m 
■nongetMn his goods, which he had committed 
lo I currier to coovey to Southampton, and 
the carrier imbeiited some of the goods: fur 
remedy whereof the Hercbant sued before the 
crancQ in the Star-Chamber for redress. It is 
ifaeie nid thus : Mercbant-stran^r^ have b^ 
■ke king safe-conduct for coming into this 
rahn; therafore ihey shall not be compelled 
tn stteud the ordinary trial of the common 
la*, bur, for expedition, shall sue before the 
kinifs council, or in Chancery, ' de die in diem 
' eiilc horft in honm ;' where the cose shall be 
dHnmiiied by the Inw of merchants. 

lo the like manner it is in the T.an of State ; 
"heo tbe necessity of state requires it, tliey do 
*nd may proceed to natural equity ; as in those 
Mher eases where the law of the land provides 
not, there the pmceediiig may be by the law of 
natural eqoi^: andlnfinltearetheoccurrrnce: 
af Hate, unto which tbe common law eitend: 
sot. And if these proceeding of state should 
Dotdio be accounted the law of the land, then 
■« do fall lata Ihe. same incooveniency men- 
^Htdia Cawdry'f oase, that tbe king should 



1028.— (/« Liberlyqfthe Sni^rt. [ISO 

not be able to dojustice in all cases within hi* 

If iheo the kiiignorhiscouDcilmay not com- 
mit, it must needs follow, that either llie king 
must have no cuuncil of stale, or having such k^ 
council, tliey must have no power lo nmke or- 
ders, or nets of state; or if they may, tljey must 
be wiibout means to compel obediunce lo tbo;e 
acts ; Biid so we shall bIIhw ibcm jurisdiclion, 
but not compel obedience lo those acis : but 
not correction, which will be then us fruitless a* 
the command. ' Fiustra potentiu qus nuu- 
' quam redi^tui in slatutum.' Whereas ihe 
very act of Westminster the first, shews 
plainly thai the king may commit, and that 
his commitment is koful, «r else that act 
would never have declared a man W be irre- 
pleviable when he is cammiiled by the com- 
mnnd of the king, if the law-makcri had con- 
ceived that lu's commitment had been unlawful. 
And Divine Truth mfbnns us, thut the kiiiga 
have their power from pod, the Psaitnist call- 
ing ibcm ' the children of ihe Most High;' 
which is in a more special manner understood 
than of other men ; for all ilie sons of Adam 
are by election tliesonsofGoil, and all the toni 
of Abraham by recreation, or regeneratinn, lb* 
children of the Most High, in respect of the 
powerwhichii committed unto them; viholiaili 
also furnished them nith uruamenls and armi 
tit for ilie exercising of that power, and hatb 
given iliem Bcepires,!»ord>, aiid crowns; scep- 
tres to institute, and swords to eiecme ians ; 
and crnwns as ensigns of that power and di^ 
nity, with which they are iavtsled. Shall w* , 
then conceive that our king halh so far troni- 
mitted the power of hb sword to inferior ma- 
gistrates, cliat he hath not reserved so much 
supreme power as to commit an offender to 
prison? 10 Hen. 6, fol. T, it appeais that ■ 
steward of a court leet may commit a miin la 
prbon, and tlinll not the king, from vhom all 
mferior power is deduced, have power to com- 
mit > We call him the Fountain of Justice, vet 
when these streamy and rivulets, which flow 
from that fountnin, cume fresh and full, we 
would so far exhaust that fooutain, as ;u leave 
ii dry. But they that will admit him so much 
power, do require the expression of the Cause ; 
I demand whether they will have a general 
cause olledBcd, oraspecinlP if general, us they , 
have instances for treason, felony, or for con- 
tempt, (for to leave fcncing.and to speak plainly 
as they intend it) viz. If loan of money should 
be required and refused, tihd thereupon a cono- 
miiment ensue, and the cause signified to be Ibr 
contempt, ihis being unequal inconvenience 
from yielding, die remedy is sought; in [lie next 
parliament would he required tiie expression of 
the particular cause of the comiuitinent. Then 
fit would it be forkingorciiunol iii cases 



whether it be monarchical, or of 
any other frame, which hate not some secrets ijf 
state, not communicable to vulgar undcrscand- 



15iJ STATE TRIAXS, 3CaAit(.RsI. l&23.-~PnKeedmgiiaParJiamaaTeiatingio [16% 

I will instance hut one ; if a king emplojr an 
•mba^sadoi to a Torcign country or stale, with 
iD^trunions fyc his nejiociattoD, and he pursue 
not Ills inslruciions, whereby ditlionour aiid 
damage tnay ensue to the king(lon>, is not this 
committjblef And yet the particular of his in- 
stfdctiun, and Ihe mnnuer afhij miscairyinK, is 
not fit to be declared to his keeper, or by nini 
tO'be certified to the Judges, where it is lo be 
opened nnd debated in the presence of a j^reat 
audience. 

I therefore conclude, for offences ngninst the 
State, in case of Stnta GsTemnient, the Ling 
and his council have Jiiwful power to punish by 
imprisonment, without shewing particularcause, 
where itmay tend to tbe disclosing of State Go- 
vernment. It isnellkDOwnto many thatkuovF 
me, ho* much I have laboured in this*law of 
the Ruhjects liberty very many years before I 
was in the king's service, and had no cause then 
to speak, hut to speak tTaninw; yet did I then 
maintnin and'publish tlie same opinion which 
now I [luve declared cohcerning ibe king's 9|i- 
preme power in matters of stale, and therefore 
cannot justly be censured to speak at this pre- 
sent only to merit of my master. But if I may 
freely speak my own understanding, I conceive 
it to be a question loo high to be determined by 
nny legal direction ; for it must needs be an 
hard case of contention, wlien the conijueriir 
muit nit down with irreparable losses, ns m this 
casr. If the subject prevails, he gains liberty, 
but loseth the benefit of that State Govern- 
mfnt, by which a nvonnrchy amy soon become 
an anarchy [ or if the State prevails, it gains 
absolute sovereignty, but loseth subjects : not 
their sutQection, for obedience we must yield, 
though nothiiig he lefl us but prayers and tenrs, 
but yet loseth the best put of them, which is 
their affections, whereby sovereignty is estab- 
lished, anil the crown firmly fiit on his royal 
bead. Between two such eitreroes there is no 
way to nwderate, but to find a medium for the 
nccon>niod.itinn of tlie difference ; which is uot 
fer me to prescribe, but only to move your lord- 
abips, to whom I submit. 

After Mr. Segeiini's speech ended, my Lord 
PrestdenI said thus lo tlie GentlemeQ of the 
House of Cominons; ■ That though at this free 
* conference, liberlv was given by the Lords to 
' the king's counsel to speak what they thought 
' fit for bis mojesiy, yd Mr. Seijcant Ashley 
' had nu authorily, or dircctioa from than to 
' tpcak in lluil manner he had done.' And he 
was committed into custody, and afterwards, 
being sorry for any hasty expression be m^ht 
hare used, wns discharged. 

The Objections of the King's Counsel, with 

the ANBwins mad« thereunto, at (be two 

Confereiices tonebiog the same mailer. 

It was agreed by the Aitomey-Qenenl, sir 

Robert Uenth, that the seven Sutatas urged 

by tlie Ci'inmuiis were in force, and that Miij^na 

Chiiitn did extend most properly to the king. 

But he said, 1, Thnt some of them arc in ge- 

iicrul wurds, and thereiure couolude nothing. 



but are to be expounded by the precedents; 
nnd olliers that be more particular, are applied 
to the sujigesiidiis of subjects, and not to the 
king's command 'simply of itself. Hereunto it 
was answered. That the Statutes w^re as di- 
rect ns could be, which appeareth by the read- 
ing of tbein ; and that ihougb some of tbem. 
speak of suggestioas of the subjects, yet oihet* 
do not : and they tliat do, are at effectual, for 
that tltcy are in eijual reason, a, commitment 
by the command ot the king, being of as great 
force, when itmovetb by a su^estion from a, 
subject, as when the king taketh notice of it 
bimsalf ; the rnthn: for that kings seldom inter- 
meddle wiih matters of this nature, but by in- 
formation from some of their people. 

2. Mr. Attorney objected, that ■ per legem 
' terrx' in Magna Charta, (which is the foun- 
dation of ibis question) cannot be understood 
for process of the la.w and orl^nal writs ; for 
that in all criminal proceedings no original 
writ is used at all ; but every constable either 
for felony ar breach of the peace, or to prevent 
the breach of the peace, may commit without, 
process or original writ, and it were hard the 
king should not have the power of a constable. 
And the statute cited hy the commons, make* 
procBEB of the Isiw and wricongiDul, to ba aU 

The answer of the Commons to this objco- 
tinn was, tbit they do not inicnd original writ* 
only by Uw of the land, but all oTber l^al pro- 
cess, which comprehends tlie whole proceed- 
ings of law upon caute, other than trial by 
jury, Judicium parium, unto which it is oppos- 
ed.. Thus much ii imported ex vi ttnaiia out 
of the word process; tuul hy the true accepta- 
tion thereof^ in the statutes that have been 
uied by the commons to nm in tain the (tedara- 
tion, nod most especially the statutes of 95 Ed. 
3, cap. 4, where it appeareth that a man ought 
10 be brought in to answer by the course of Uis 
law, having former mention of prooeu mad* 
by original writ. 

AndiQ3BEd. 3,cap. 3,<bythecauneofthe 
law' is rendered ' 1^ due process of the law.* 
And 36 Ed. S, Hot. Pari, n, SO, the petition of 
the commoiis soith, < thht no man ought t» be 
imprisoned by ^>ecial command without in- 
dictment or other due process lo be made bj 
the law,' 37 Ed. 3, cap. 18, calletb the samo 
thing ' process of the law ;' and 49 £d. 3, cap. 
3, stilelh it ' by di^e process and writ original ;* 
where the conjunctive must be taken' for a dis- 
junctive, wliicb change is ordinary in an expo- 
sition of statutes and deeds, to avoid incoi^re- 
□ienceii, to make it stand with the rest ; and 
with reason, as it may be collected, ' by the latr 
of the land' in Magna Chartn, 'bythecoarte of 
the law' in 3S Ed. 3, <bytbe daeprocetsnflaw' 
in 98 Ed. 3, ' other due procpss to be made by 
Ihe law' in 3G Ed, 3, ' process of the law' io 37 
£d. 3, and > by due process and writ original' in 
49 Ed. '3, are meaui one and the same thing; 
the lutiet of these statutes referring always to 
the furmrr, and that all of tfaem injport any.due 
and regular froccediog? of law upOQ a caiiw . 



US} ^ATB TIOALS-. 3 Crabub L mes.—the Uhrrij cf ^ 5h^. 



[IH 



«tCT tbui the Trial b^ Jury. And thi» ap- 
poKtb 10 Hep. 71, in the caw of the Mir- 
iteliea, and 11 Bep. 99, James Ba#g's case, 
vIieR JL ii ubdeistood of giving jansdiciion b^. 
charter or pre*cription, whicli it tlie erxiund of 
■ pnKeedion bj couise of lam. And in Scl- 
' dm'iNote* on For[acue> f<>l- 39) tvbeK ic i» 
ctpoonded for law-vriuer, which is likewite a. 
liial at law by the oath of the panie* di&ring 
fiooi tbat bj jurj. And it doth trulj conipr*- 
kod Uieie and all other regular proceedin|p 
ii U« upoa cauM, nhich give* authority to 
Jw dustable to arreit upon coute. Aiid if 
thit be not the tme exposiuon of these words 
'^ Urbh tCTTs,' the kiug'i cbhbmI were de- 
fied to declare their meaniog, which tbej never 
g&rcd to do ; and jet certuol; these wolds 






o th« 11 



iDlf ibi 



tnikio of 1 . , 

And thereupon Mr. SerjeBnt Aibln offered- 
■aiaterpretaticiD of ifaem. thus : auaely, Tbat 
then were diver* laws of tbis reabn, a* the 
CoatmOD Lanr, tb« Law of the Chancerr, the 
Ecdraiutica] Law, Cbe Law of the Admiralty 
or Hiriua Law, the Law of ihe Merchants, the 
Uutial Law, and tbe Law of State ; and tbU 
tbcK words ' per legem teres,' du etteod to 
til these laws. 

To this it was answered, That we read of no 
Lt" of Slate, and tbat noneof these laws can 
be nkeaat there, save the ComBwio Law, which 
ii ibe'principsL and general law, and is atwaj* 
Bodentood by way of exceUency, when men- 
boii is made of tlie law of the land gener^y : 
ud that though each of the other Itfws, which- 
WC admitted into this kiDgdoin by cuitoin or 
•a of parliaiitent, may JMily be called a law 
<lf the land, jet none of them can have the 
pre-emtof ikce to be stiled lAe taw of the land. 
And no Statute, Law-Book, or other Auiho- 
isj, printed or unprinted, could be shewn, to 
proTB that tbe law of tbe land, being generally 
mentioDed, woe ever intended of any other 
tbto tbe Commou Law ; and yet even by ihesa 
adicr la>r), a man may not be commitliea witli- 
Mt % cause espretsed. 

But it ttandeth with th9 rule of other legal 
ttpositinns, that ' per legem terra;,' must be 
mesne the Conunoo Law, which ii the general 
nd noivenal law by which men hohl tbeir in- 
l«ritMces; nod tfaerefore if a nunipeakofes* 
cn^e fenerally, it is uudentood, as Littleton 
vbterv^ tect. 99, of the inceruin escuaie, 
wUch b a knight'e servioe leouie, for the ae- 
Ince of tbe reum, by the body a^ the tenant 
iiiiineofwar,aBdpotorccttaioetCusge, which 
(irtth only a contribucipn Id nwoey, aod no/ 

Aodifa Statateapeak.of the Kinc'eCoiutt 
nfKecordfit i«mew)toolyof tbe four at West- 
ninnei by way of excellency, Cob^s 6 Rep. 
SO, Grc|p>iy's case. So the Canonisti by Ihe 
^unmrnDnication umply spoken, do intend 
die greaiei EicomnniDicaiinn. And the E«i- 

Cin hii Institntions laiih, Thnl iLe Civil 
bang spoken generally, .is meant of tbe 
Civil Law of Eom^ though the Irw of erery 



city u a civil law ; as when a man names Tb« 
Poet, the Greeiaos underaund lloioer, the \j^ 
liniits, VirgU. 

9. Admit ' per- lef^eni terrs ' extend to all 
tbe laws of tbe land, yet a mnQ mast iiot ba 
committed by any of them, but by the due pro-' 
c^edings that are evcuted by those laws, aud 
iqioa a cause declared. 

Again, it was uiged. That the king was not 
bound to express a cause of impriioument, be- 
caose ibere luay be in it matter of state, not fie 
to be revealed for a tioie, lest the confederate* 
thereupon make means to escape tbe hxiidB of 
justice. And therefore ilie Statutes cannot be 
intended to restrain all can^mitments, unless % 
cause be etpressed ; tor that it would be very 
inconvement aud dangeroul tn the state, tq 
pubiiib tb« cause at tbe vcrv first. 

Uereaiito it was readied by the Commonii 
lliat all ' danger and inconveiiience may b# 
avoided by declaring a general cause, a) fiir 
treason, lu^icion of treason, misprision of 
treason, or feloi^r, without specifying the par- 
ticularj which can ^ive no greater light to a 
coniedcfate, than wdl be conjectured by the - 
very apprehension upon the Jinpiisoilnicne, if 
nocliing at all were expressed. 

It wa» furilter alledg^ed. That there was n 
kind of contradiction in the position of the 
CtimoiDiis, when (hey say, a party committed 
without a cause shewed, oqght to ba delivered 
or bailed; bailing being a kind of iraprisoo- 
ment; dtiivfery a total freeing. 

To tbis it hath been antwered, that it hath 
4ways been the discretion of the Judges, to 
give so much Teq>«ct to a commitmefit by tb« 
command of the King or the privy-council, 
(which are ever intended to be dune in juM 
and weighty caotes) that they wiil not presently 
set them iree, but bail then) to answer wliat 
shall be objected against tbero oti bis mnjesty'a 
behalf J but if any other inferior o£c^ do com- 
mit a muQ withoDt shewing cause, tbey do in- 
stantly deliver him, as bavine n? cause to ex- 
pect their leisure. So the ildivery is applied 
to an iitmrisonment by the coromaad of soniA 
iqean minister of justice ; bailing, when it is 
done by the camnund of tbe king or hit 
couaqil. 

It was aigoed bv Mr. Attwney, tl»t bailing 
was a grace and fsvaur uf a court of justice, 
and that they may refuse to da it. 

This was agreed to be true in diveia ca.4e«; 
as where the causa appears to be For Felony, or 
other crhne* eiprewed, for that there is an- 
other way to discharge them in lonie convent- 
mt time by their trial; and yet in these cnse^ 
tlw constant practice baih been anciently and 
modemly to bail men : bat wbere no cause of 
the imprisonment is returned, but the oommand 
of the king, there is no nay to deliver such 
person by trial or otherwise, but that of the 
Habeas Corpus. And if they sliould be ihea 
remanded, lliey might be perpetually impriwQ- 
ed, without any reiudy at all; and consequently 
a man that had conimitled no olfence, might 
beiuaworte case ihano^gteai ogesder; foe 



I5S] STTATE TRIALS, 3Chaw,mL I«2a.— i 



nltaingio [160 



th« titter should have «n ordinarr trial lo 
dischnrge him, tha olber ihould otvtt be de- 
It was farther Mid, that though the ttituR 
orWe^tmiDster 1. c. 15, be a tiatute which hr 
waj' of proiitioD did extend odI; to the sheriff, 
jret ttie recital of lliat statute ttiuching the four 
cases, nharein a inaa was noc replevisble nt 
the comoiDn law, nnmelj, tliote that were com- 
mitted for ihe death oF a man, by the cotamand 
of the king, or of bii juiiicei, or for the forest; 
did declare that the justices could not bail sutUi 
B one, and that repleviable and bailable were 
•jmonimous or all one: and that Stamford, a 
judge of great aothoritj, dodi expound it ac- 
cordingly (Slaro. pi. Cor. 7i.) and that neither 
the statuia nor he say * repleviable by the iheriff,' 
but geoerallj ' withuut restraint;' and that if 
the chief justice commits a man, he is'not 
be iDlarged by an; other court, as appeareth 
the Register. 

To this it was answered, 1. That the recil 
of tlie body of the statute, relateth to the sheriff 
unlv, as appeareth by the very wards. S, That 
repleviable it to the sherilT, for that the word 
imports no more ; but a man committed bv tiie 
Chief Justice, is bnilable by the couit of King's- 
Bench. 3. That Stamford meaneth all 6F the 
sheriff, or at least he hath not sufficiently ex- 
pressed that he intended the justices. 4.'ltwas 
denied that Tepleriable and bailable were the 
■atne, for they differ in respect of the place 
wltere tliey are used, bail being in the Kiii^s 
Court iifKecortl, repletisMe before the sheriWi 
and they are of sereral natures, repleviable be- 
ing a letting at larfte upon sureties, bailing be- 
ing when one ' traditur in balltom,' the bail are 
his ganlen, and may imprison him, and thall 
suffer body for b<>dy ; whicb is not true of re- 
plerying by sureties: and bail difFereth from 
matopriie in this, thnt mainprice is an under- 
taking in a sum certAiD, bailing is to answer the 
condEmnatioii in civil causes, and in criminni, 
body for body. 

Im reasons and authorities in the Erst Con- 
ference were then renewed, and no eiceptions 
taken to any, snve that in !3 Hen. 6, it dnth 
not appear mat the coimnaod of the king was 
by bk mouth, which must be intended, or by 
his council, whit^ is all one, as is observed by 
Stamford ; for the two words are, that a man is 
not repleviable by the sheriff, who is committed 
by the writ or the cammandment of the kiog. 

SI Ed. 1, Rut. 9, dors, wss cited bj the 
King's Counsel ; hut it was answered, that it 
concerned the sheriff of Leicestershire only, 
and not the power of the judges. 33 Hen. 6, 
the king's Attorney confessed, was nothing to 
the purpose i and yet that beak hath been usu- 
ally cited by those tJiat maintain the contrary 
to die declaration of the commons. And 
therefore such sudden opinions as have been 
»ven thereupon, are not to be regarded, the 
found ntion facing. 

And where it was mid that the French of 36 
Ed. 3, lloi. Pari. n. 9,wbiciic»nroceive noan* 
■wer, did not warrani what was inferred tbence ; 



hut that these words, < sans disturbance met- 
' tre, ou arrest Faire, et le centre per special 
' mandement Ou en autre maoiere,' must be 
understood, that the Statntei sltould be put in 
execution, without putting disturbance, or 
mfeking artest lo tlie contrary by special coca- , 
mand of iti Other manner; the commons did 
utterly deny the iiiterpretalion given by tha 
Ling's cooosel : and to jostift their own did 
appeal to all men that uuJentood French, 
And upon the seven statutes did conclude, that 
their declaration remained an undoubted trutb, 
nut cautroUed by anything swd lo the contrary.' 

[The Psoceeoihcs acjiihst toe Eul ob 
fiuFFota, April 14, l(i2fl.* 
Mr. Kerion acquainted i be house, thatth* 
earl of Sufelk had said to some gentlemen, 
' That Mr. Selden had razed a Record, and 
deserved to be banged, for going about to set 






I betwi 



And being demanded U 

spoken, he was unwilling to name a..., 

u^ti the question it was resolved he should no- 
minate him. He then named sir John Strang- 
ways ; who was unwilling to speak what he had 
heard from the earl : hot being commanded by 
the bouse, and resolved upon the question, be 
confessed, 

That upon Saturday last, he being in the 
Committre-Chember of the lords, the earl of 
Suffolk called to him, and sfaid, < ftir Jobn, will 
' you not hang Selden ?" To whom he said. For 
wW? The eari replied,' ByGodhe hathraied 
' a Record, and deserves to be hanged f .' 

This the House of Commons took as a great 
injury done to the whole house, Mr. Seldea 
beinzemployed by them in the Conference with 
the lonls in the great cause conceroiog the 
Liberty of the Persons of the Subjects. 

The House presently sent sir Robert Phillips 
with a Message to the Lords to this e^a; he 
expressed the great care the Commons had 
upon all occasions to maintain all mutual re- 
spect and correspondency brlwiit hoth houses : 
theo he informed them of a great injury done 
by the eari of Suffulk to the whole huu;e, and 
lo Mr. Selden, a particular, member thereof. 



t Mr. Selden. " I am called up to justify 
myself. 1 see the words charge me to bav« 
razed Records. I hope no man believes 1 ever 
did it. I cannot guess what this lard means. 
I did deliver in whole copies of diven Record* 
examined fay myself, and divert other gentle- 
men of this house, lliese I delivered in to th« 
lords house; and tbe Cleri of ^e Ctdwd 
brought in the Records of tbe office before the 
lords : I desire that there may be a Message 
from this house to the lords, to make at iho 
bar there a Charge against tbe lord tbu ^k« 
thus ; and I hope we shall have justice." Ex 
MSS. Pymmii in Selden's Lif^ in hisWoAs, 
vol. , p. 10, 



lit] , ST4^TE TlttALS, S Crabuu L IK*.— the h^er^ tf ih: Sdjeet. 



[I5S 



who by ilwir coiBiiMDd bmd been emplojcd iti 
lb< late CtiQf«Tsncc oith tbeir lordibipa : that 
du bouse wu vnj aenmble ibereof, ud ac- 
conJing to fumm- precerfenu, made tlieiii tmlj 
to|(iauit«d witfaii, and demanded justice agaiiul 
(be earl of Suftilk. lie read die words, Mying 
tkj were Kodken to tir Joha Straogmji, a 
iMmber ofuteir bouie. 

After a short u»j, ihe lordt called for the 
■cntngeT, to whom tbe Lord-Keeper gave this 
as>ter; be U|iu6ed ihe peat deiira and care 
of their loidshipi to maintaiD and increaM (he 
anaipoadeaciu betwitt both houses, and as 
1 taliiaoay thereof thej bad partly taken into 
ansklenlioD the chaise : that the earl of Suf- 
bSk, being a man of great place and bODour, 
lad vohuitarilj proteKled npon his honour and 
ml, ihat there passed no lucb words as those 
ftooi him to air John Slrangwajsi and the 
Loid-Ke^ieT wished that Lheir lordships speedv 
onKcedings in this business. might testily their 
Ikc and good-will to the commoas house. 

The next day being tbe 15[h of April, tir 
Jolia Strangvrays made a Protestation openly io 
the bouse, wherein he avowed that (notH'ith- 
Aanding the Earl'i denial) be did speak ihnw 
KHili positively unto him, and would maintaiB 
il sDj way filling a member of that bouse, or a 
{nitteman of honour. 

They ordered Chat this Protestation should 
lie entered into the , Journal- bnak, and that 
t canunittee should take inio consideration 
*bt was fit tbr the bouse to pmceed to, for 
tke justification of sir John Stmngway), and 
•hat was fitting Io be done in ihis case, and to 
tiuoiQe witoeasei of the proof of the words. 

Upon the ITtb.day sir Jolm Elliot reported 
■kt tlie (ommitlee bad done ; That they had 
teat for and examined git Christ. Nevil ; who 
irltled, that upon Saturday being in the Lords 
Csaunittce-Ctiainber, the earl of Sufiblk said 
tbu) to him : Mr. Attorney hath cleared the 
buuDcu, and hnih made the cause plain on tbe 
king's side ; and liirther said, Mr. Selden halh 
Tued a Record, and hath deserved to be faaoe- 
cd, and tbe Imter bouse should do well to Join 
vith ilie higher in a petition to the king to hanj| 
Iud; snd added as a reason, for Mr. Selden 
mit about, and took a course to divide the 
i'lrn Erom his people, or words to that effect. 
And being asked, whether be oonceived that 
ihuuwDrds of dividing tbe bing from his people, 
U relation to the wl.ole and general action of 
Ur. Selden before the lards, or to the particular 
i>f raiitig a record ? lie conceived ihey were 
rderred to Ehe general action. 

Tbej had examined one Mr. Littleton, wbo 
raafbud be heard the earl of Suffolk si»ak to 

XtJeman, whom he knew not, words to this 
, viz. That he would not be in Mr. Sel- 
den's coat for 10,0001. and that Mr. Selden 
■loerved lo be hanged. 

The second part of tbis report concerned the 
jniticukr of sir John Strangways, wherein 
■Ixngh tiie committee found no witncs; to prove 
^ words spoken to sir John Strangways, yet 
■we atte aunj circuiiutaocea whi^ peisand- 



ed tbeiD of tbe truth thereof. 1. That tlw 
same words in the same syllable! were spoken 
to sir Chrikt. Nevil, and that the earl as b« 
called to hioi sir John Strangways, so he called 
to him sir Christ. Nevil. 8. That the carl of 
Suffolk called sirJohn Strangways to him, end 
spake to him, was proved by sir Geoige Fane^ 
and sir Alei. Si. John, at which time tbe earl 
seemed fiill of that which he delivered, 3. 
That sir John Strangways instantly after hie 
discourse with the earl of Suffolk went to tbe 
esu'l of Hertford and deliveied him the paawges 
betwixt them, being ibe same related in the 
house. 4. From tbe nnwilliiigness of sir John 
Stranfjwnys, thouah called upon by iba house, 
to testily against (Tie carl, till it was resolved by 
question be should do it : firom a probability, 
that had not these words beeo spoken to biin- 
iieLF, it is like be would have produced tir Christ. 
Nevil, from whom be also beard the same. 5, 
From the worth of the gendemnn, and bis in- , 
genoous Protestation in the bonse, I'hat be 
was ready to jusiify (he truth of »hat be said 
in any course the bouse should think meet, or 
was fit for a gentleman of honour. 

Hereupon the bouse resolved upon tbe ques- 



dalous imputation upon Mr. Sekleu, a member 
of tbe house, being employed in the service of 
the house, and therein upon the whole boua* 
of commo[is. 3. That tliis house, upon due 
examination, is fully satisfied that tir John 
Strangwavs (notwithstanding the earl of Suf- 
folk's den^ial) liaib affirmed nothing but what ia 
most true and certain. 3. T'lat tliese. particu- 
lars and additions be Bgain presented to tbe 
lords, and tlie earl of Suffolk be newly charged 
at tbe bar, and the lords desired to proceed in 



, being against the hiiuse of commons, 
doth deserve." 

Sir John Elliot was sent with a Message to 
the lords; who after a while returned thia 
Answer, That they had t^en the Meisnge into 
consi deration, and wouM further take it into 
due consultation, and in convenient time 
would return an answer fay metsen^rs of tb«r 
own. But what woi done in this affair doea 
not appear.] 

Mr. Noye, ad the 16th of April, offered an 
Answer to tbe inconveniencies presented by 
Mr. Attorney, which were four in number. 

First, where it was objected, that it was in* 
convenient to express the cause, for fear of di- 
vulging the ' Atcana imperii,' for hereby all 
may be discovered, and ahundance of tmiton 
never brought to justice. To this (hat learned 
man aosw^ed, That tbe Judges by the inten- 
tion of tbe law are the king's counsel, and 
the secsets may safely be committed to all or 
some of them, who might advise whether they 
will bail him : and here is no danger to kin^, 
or Eubjecta ; fi>r tbeir oath will not pennit 



159] STAlTliUALS, ^'C«asus{. iM6,'-^Pr«»taiigii»l'artiailmt»lk»glo 1%^ 



thoin to rereol th* •ocretBoftbakiig, nary^ 
M detain tha tul^tct long, if by law he beto 
be Iwiled. 

SecondlT, Pur that Bbjection of the cliildren 
of Odandl, Ac laid tbis for a ground, that the 
king can do nn wranc; but in cam of eitreiae 
i»c«wity, we mint yield urnieumei for the prO' 
wmiCioa of die uaie, ' obi unins daimwiD 
'SiilllaEe pabliOH (ependitur :' he laid tbara 
WM no truM in tic diildrcn of traitor), no 
moDg dme if liwy did ' tabefocere,' or ' mar- 

* ceac«re in ewcere.' It it tJie nme caM of 
Beoenity, M wbca tu svi»d the barniogofa 
MwQ, lie ar* forced to pull down an bonett 
■nan'* haute, or tn compel a man to dnell by 
the seK-«id« far dclience nr fimitnde. Yet (M 
king can do no tmiiig, fur ' potentia jaris est 
< noD injuria :' trgo the act of the king, tbougli 
to tfac Hrang of another, i« by the law miule no 
wrong 1 at if be (Mnmauded a petH> to be 
kept in priton, yet he ii recponiible for bit 
wroRR ■. he quoted a book 43. 6. Ah. Port. 

Thirdly, The iAuaace made of WeHKiinst. 
fir»C he said (here wm a great diOkrence be- 
t»een ihota three. Mainprise, Bail, and He- 
Verin. The StatuU tavs, a man cannot be 
replevied : ergo, not bailed non ugmtttr. 
Hainpriie w under pain ; bail it body for 
body : btit no pain ia ever in court to be do- 
dared, Qnlest the party appears. Replevin is 
neither by aurety nor bail; and Replevin it 

Fourthly, Where it is said that bail it M gr»' 
(M, h* nntwera, That if the prisoner comet to 
Habeas Corpus, then it is not tx gralUi, yet the 
court may advise, but mark the vofda ' ad 
' tabjiciendum et recipiendum pront curia con- 
' Bideraverit.' Now it is imponible the Jodga 
Ihould do to, if no caute be ex|iFened ; fbr if 
Ihej know nO canse, be may bring ihe first, 
tecond, third, and fiiurth Hnbeat Corpus, and 
•D infinite till he find himself a prrpeldal pri- 
toner-. so that no eaiBe expreiscd, it worse fbr 
a man than the greatest cause or vlllkiny that 
can beimagiued. And tbot far proceeded that 
learned gentlfnrao. 

Mr. Qhmite soid, That by l«Toar of the 
boose of commons he had liberty to i^Wnk, if 
Oppormoity were offered. He-applied his an- 
swer 10 one paiticular of Mr. Attorney, who 
ftssiened to the king four great tnutt: 1. War, 
S. Coini, 3. Denizens, 4. Pardons; it is as- 
■•nied to, cJmt the king it inuted with all tlicM 
fo«r legal prerogativH, but the a^ment (bl- 
lowaih not, the king is tmsted with many 
premgaclvcs ; erga, in thit ' non aeqaitur non 

* est sufficieni enumsmtio pnrtiuni.' He M'ld 
he could nmwer these particulars with iwo 
rulea, whereof tbe lirsl should wipe off the 
irst and tbe Mcond; and the other, the third 
and fourth. 

The first rutris this : there is no fear of trust- 
■Dg the king with any thing, but the fear nf ill 
eonnsel ; the king nay easily there be trusted, 
where ill counsel doth not engage both tbe 
king tod Mbjeett, as it doth in matter of war 



and coin. If he mitcairy in tbe wars, it u nof 
always ' plectuptor archivi,' but he (intrtt 
eqnJly with the p««ple; if be abate bis coiti, 
he Itiseth moic than any of liii people ; trm 
he may tafkly be trosted with the flowers of m 

The teooad nde ht begkn was this, WbeB 
the king ii trusted to confer grace, it is olife 
thing; but when be it tnHI^ to infer an in- 
jury, it it anodier matter. The fonnto powet 
cannot, by miBconnMifitig, be brought to pi«- 
jodtce another, the latter 'may ; if the king par^ 
doneth a eiilty taan,)iepunjtl)eth not a {{ood 
satqect; if hfe^CncEen itci'ersomanyatMinzVrS', 
it it bat dkwBi m (tne injuria : we eUnw fain i 
liberty to confer grace, hot not without cmxb 
to iDRr pnniahmcnt ; and iRdeed he cMtnotdo 
injoiy; fbrif he cnnnnnnd lodoaman nrotifL 
tbie command Is void, ' vt actor fit aiAhur,' aM 
tbe actor becMBes tlip wrong doer. Tlierelbi^ 
the biiig may safely be trosted with war, coii^ 
denizens, and pardon i, but not with a power to 
impritOD withunt exuretnion of cause, or limi- 
Mtionof time; as the pott telb in, bect»iS« 
' libeitae polius auro.' 

After time debates, the bonsfc of pimt 
called upon the Jui^«s to answer the Cnai^ 
•f tbe house of commoin, for their Jodgment 
on ih« Habeas Coipus, brought in Mich, tfrm 
by the Gendemen imprisoned fbf refusing to 
taibfcrib« to tbt Loan. 

The AvswEK of ilie Judge* for matter of Act 
upon the Habeas Corpus, 9 1 April. 

Tbe Chief-Jytlire taith, They are piepar«d 
to obev our command, but they deurfa to hk 
adviied by as, whether tbey being iworn upon 
penalty of forfeiting body, lands,, and goods, 
mto the king's hands, to give an account ta fdm, 
mat wfllioHt Warrant do ihis. 

the Dtikt said, lie had acquainted the king 
.with the business, and for aught he knew he 
is well contwit Iberewith ; but for better assup. 
ance, he t(ath seDt his brother of Anglesey tb 
know his pleasure. 

DetomUre. tfa camphint be made by* 
meat! Inan Bgainst the greatest officer in ttib 
place, he it to gite tn account of his doings tt> 
this boast. 

Bishop of Uneoln. Tliii motrun proceeded 
from him, atid su took it for clear, that there 
wat an appeal from the Chancery to a higfan 
court thm the King's-bertch, and that court 
bath evn given an account oftbeir doings. 

The kinl Say. He wondered tbere shotM 
be any qneatioo made of this bustness, becaoie 
in his opinion, tbn being tbe higbest court, did 
admit of no appeal. 

The Prtiident. Tbe Judges did not do ibh 
by way of appeal, hot as themost Comolon wny 
n, this bein 



ftw litem. 



a being a. matter c 



mJng tb* 



Lord Sty. If they 
■elves, we most take 
point of our privilege. 

The Duke. This was not done by ihe J( 
as feariag to aoiWer, but lespect to Q/t 



ffi? 



161) STATE TSIAIS, SChablesI. IGn.— the Liberty of the Suhjtci. 



[I6t 



And BOW hh brother WB3 cnrne xith ans' 
fimD the kin^ thnt thejr might proceed. 

Older WAS tai-ea diat tbis pauage should 
hccnteicd into the Jnuniiil-Baok. 

And 3o Judge Wbipioce spnke. 
My lonh, we arc b_T your Bppointriieiit h 
ittdj lo dear itaj aspersion of (he liouse 
rammons in iheir lale presentment upon the 
Kin^Vbcnch, that t)ie .Subject nat wounded in 
tb( judgment there lately p^iven. IT such a 
tbing vtrc, my ivrds, your lordships, not they, 
iart the power to qaestion and judge the same. 
Bin, my tordii, I say there was no Jodgment 
ptta, wbereby either ibe prerogative might be 
oilargeil, or tbe Higiit of the Subject trenched 
upon. It ii tme, niy lonls, in MicbnelnsBi 
tenD last, fonr gentlemen pelitioned for an 
Habeas Corpus, which they obtained, and 
cannjel waa assiened unto them ; the return 
was ' per speciale mandatutn domini regis,' 
which likewise was made unto us under the 
budt of 18 privy counsellors. Now, niy lord;, 
if we bad delivered them presently upon this, it 
Bust have been, because the king did nat shew 
cfae came, wherein we should hnve judged the 
tiDf had dohe wrnn^; and this is beyond our 
bmledgr. Tor be might hure committed them 
fer other matter^ than we could have imagined. 
But tbey ntigjlit say, thu»they laight have beeo 
Irpi in prison all their days ; I tunwer no, but 
wedid remit them, that we might better advise 
of the inatter : and ihey the ne« day might 
hne had a new writ, if they had pleased. But 
tbtj say, we ought not to have denied bail. I 
iBiwer, if we liad done so, it must needs have 
TcAerted upon the king, that he had unjustly 
inpritoned them. And it appears in Dyer, 
i tih. that divers gentlemen being committed, 
■nd requiring Habeas Corpos, some were 
btilnl, others remitted -. whereby it appeon, 
tniich bleft to the discretion of the judges. 

For that which troubled so mach, < remrt- 
' tilur qunusque,' this, my lords, was only (as I 
nid before) to take time what to do ; and 
whereas they will h»ve a differcice betwixt 
' temittitur' and ' remittitur quousque,' ray 
lordi, I confess I can find none ; but these are 
M» inventions to trouble old Records. And 
Win, my lonl*, we have dealt with know- 
ngfand understanding; for had we given a 
Jingment, the parly must thereopoo haie 
ntai. Every judgment must come lo an 
*« iTi matter of ftict, or demur in point of 
Itw; here is neither, therefore do judgment. 

Ai to endeavouring to have a Judgment en- 
••"d; it is true, Mr, Attorney pressed the 
**uie for his master's service; but we being 
Worn to db right betwirt ihe king and his lub- 
JMts, commanded the clerk to make no entry, 
but according to the oJd form; and the rule 
*M pven by the Chief-Justice alooc. I have 

Sit my time In this coun, and I spqak confi- 
'ly. I did never see nor know by any 
"eord, that opon snch a return as this, a man 
*» hailed, the king not fir« consohed irith in 
"uacMeaitbis. 
»0I~ III. 



The Commons House do not know what 
letters and commands we received, for these 
remain in our court, and were not viewed by 
them : for the rest of the matters presented by 
the boose of commons, they were not in ajpin- 
tion before us, whether ibe k^rig may commit, 
and how long he may detain a man committed. 
Therefore having answered so much ns con- 
cernelh us, 1 desire yunr lorilships good con- 
of what hath been saiil. 



Judge Jotia said. He was here to deliver 
before us, what Judgment weis given before 
them concerning the Habeas Corpus: he lin- 
swered. No Judgment was given, and tbe mat- 
ter of fact was such as my brother dehvered 
onto you yesterday. These four gentlemen 
were committed lo the Flyer, Gate-house, and 
marshal of the honshold. Foar returns were 
made upon the writs, and every one of them 
bad a connsetlor appninied, wLo bad copies of 
the returns. A rule was grunted, their council 
heard, and exception taken to the return, be- 
cause it did not sben cause of their caption. 

These were ef no force, in tlic opinion of the 
Judges. The next exception was, because no 
cause oftbeir commitment was shewed, which 
tbe judges held to be all one in point of law. 
Tbtn, my lords, they alledged many Precedents 
and Statutes of themselves, which tbe king's 
attoniev ansnered, That persons commit,ted 
by the king, or council, were never bailed, hut 
his pleBBure was first knonn. 

We agreed at the Chamber of tbe Chiefl- 
Justice, that all tiie Statutes alled^ed are ia 
force ; but whether we should bail them of M, 
was the question, therefore we remitted them 
giimi$^Bt. After which Mr. Attorney required 
~ Judgment might be entered: I commanded 
le clerk, he should uol 
I be done, because w 
ised. 

But some wilt say, our act is otherwise : I 
nswer, No ; for we have done no mora tbaa 
re do upon an ordinary writ, when itc purpose ' 
be better advised, and that was only an in- 
terlocutory order. But, my lords, put the case 
~ Habeas' Corpus should he granted for one 
at is comtnilted by ijie house oFcommons, 
would they (think you] take it well be should 
be bailed at his first coming to the court P I 
tliink they would not, and I think the king 
would have done su in this case. Now, my 
lords, (here is apcliiion of right, andopelitioD 
of grace: to be bailed, is a Inatter uf^ grace ; 
therefore if A man be brought upon an Habeas 
Corpus, and not bailed, he cannot say the 
court hath done him any wiong. I have now 
served seven years a Judge in tlris court, and 
my conscience beareth me witness, that I hava 
not wronged the same ; t b:ive been thought 
sotnctinic) loo forward for the Liberty of tbe 
Subject. 1 am myself Liber Harno, my ances- 
tors gave their voice for Magns Chatta. I 
enjiiy that hou'ie still, which they did ; I do not 
now mean to draw God's wrath upoli my pni- 
terityj and therefore I Aitl neither atfvdDcs 



IflS] STA'^TRIAl^, SCaAMJSsI, IGa^.—I'roceedingt in Paflimnau relating to [16* 

lIiB king's prerogatiTe, nor lesen the Li>irrty of 
the Subject, U> ibe duuer of ei\her kiiiu or 
peuidt. Tliu is mj prote^oa befure (iudoad 
ifour lordahip*. 

Judge iMMtridge inid, It is no more (il for 
« judg* ^ decltoe to give an account of his 
doings, limit for a Christian o( hia bitli. God 
Liioweth. 1 have endenvourcd alwnji tu keep it 
good cno(ci«nce; for a troubled one, who cnn 
Gear? The kingduoi liulds of none but God, 
and Judgments do not puss privntely in<JlBlli- 
ben, but public); in court, where ev«ry one 
mny liear, which causeth judgnem to be given 
wirli maturity. Your liirdsliips have licanl the 
particulars delivered b; my brethren. Low tbat 
counsel being assigned to those four Gentle- 
men, in the latterend of Michaelmas Tmnllieir 
cause received bearing; and upon cpnside ration 
of tiie Slatuces and necords, we found some of 

tbcm tn be according to {Le good old Uw.of 

Blugns Cbnrta : but we ilioutht, that the; di ' 
' tiuc come so close lo this case, as tliat ba 

should be thereupon presently granled. Mj 

lords, tie Ilabena Corpus consists of three parts, 

the VVtff, tlie lUlum upon the Writ or »che- 

dute, and tile Entry or wile reciting the Habeas 

Corpus; and the Heturn, together wiih the 

opinion of the cuuit, dther a ' remittitur,' or 

< iraditur iii bnlltuni.' In this case a remittitur 

mak i^rrnteil, wliich we did, that we might take 

bf^ltor iulvisc'inent upon the case, nnd upon the 

remiiiit :r (riiy lords) they mti;bt haie had a 

new writ (he next day; and ! wish they had, 

1iccii|t^e il umy be they bad seen i^orc, and we 

hnd been ctised of a great liibour. And, my 



. _ _ . coiDimit. Tberefora jastly we think, 
we delivered the interpretation tberrof to that 
purpose : for, niy lords, Itt terra is iiut to be 
found in this stattite, they gave me no etample, 
neitlier was there any caase shewed in the re- 
turn. A precedent (my lords) thnt halhrun in 
u storm, doth uot much direct us in point of 
law, and recirds are the best testimonies. Thosa 
precedents iliey brouglit beiug rend, np shewed 
iheui Wiherciii they were mistaken ; if we have 
erred, ' errimius cum patribus,' and they can 
shew no precedent, but that our predecessors 
have done as we have done, somelimea bailing, 
suinetimes remitting, sometimes discharging. 
Vet we dn uever uuil any committed by the 
kiug, or his council, till bis pleasure be first 
known. Thus did ihoLC. J.Coke in lUy- 
ner's cue. They say, ihis nould lihvc been 
done if the king bad not writren ; but »liy then 
Hits the letter read and published, "and kept; 
and why wag the tunit-cierk &ent carefully to 
enquire (because the letter so directed) whether 
these men oQered for b^iil were Sabsidy men i 
The letter sheweth also, that Beckwlth was 
imitted for suspicion of being acquninted 
1 Ibe Gunpnwder-Trenson ; but no proof 
being produced, tbe king kft him to be bailed. 
The Earl of Wil 



pri.'!sed an entry, we all straitly charged the 
der)(, thtt he ibnuld m»ke no other entry thao 
' mcll ns uur predecessors \imI usuall* made in 
like C-neii {nt\hk dilfi-reiice (my hirJa) betwiit 
• rraii'titur' and ' reiiiiititur iiuosque,' I could 
nev-r ;;3t Gnd any. I hnve now sat in this 
cou'ithttren years, nnd 1 shuuld know soipe- 
iliing ; surely, if 1 hud gone in a mill so long, 
some dust would cleave to my clonths. I am 
old, and have one foot in the grave, iberefore 
r M\ look to the better part, as near as 1 can 
But ' oinnia habere iu memoria, et iu duU 
'' errare, divinum putius est quam humanum.' 

L. C.J. sir Nkhoki H^dr, said. He ;hould 
not speak with confidence, unlets he might 
itanil neht in the opinion of the bouse ; " " ' 
protested what he ipake the day before, 
not said by him with aiiy purpose to treoch 
upon the privihties of thit liouse, but oi 
that respect which by his place he thought he 
owed to tbe king. He said, cnncenung the 
point he was to s|^ak of, that he would not 
trouble the lords ivith tbinra fnrnierly repeated, 
wherein be concurred with bis brethren. He : 
•aid, if it were true ibe king might not commit, 
they hud done wrong in not partly delitering; 
for, my lord^raaith lie), tlieseStatules-nnd good 
bws beinii; ajl in force, we meant not to trench 
upon itny of ibem; most of tliem lieing com- 
m^'ntnries upon Alat-na ChaHa : but I know 
not any statute that goeth su likr, tbat the king 



■ Speech, 2\ April 

My lords, I will observe something out of 
e law wherein this Liberty of the Subject's 
person is fountlcd, and some things out of pre- 
cedents which have becu alledged. For tbe 
law of Magna Cbarta, and the rest concerning 
these points, they are ackuowledged by all lo 
be of force} and tbat they were to secure ibe 
subjects from wrongful imprisoument, as well, 
or i'a>hcr more concerning tbe king, than tlo 
suinecL Why tlien, besides tbe Grand Charter, 
and those six other acts of parlinmt^nt, Jn the 
very point, we know thnt iuagna Charta bath 
beeu at least tliirty times confirmed ; so thnt 
upon the matter we have six or seven-and-thirtj 
act) of purlioin^it to confirm this Liberty, aL- 
tliaugh itwfs made maticg^ of derision the other 
day in this houw. 

One is that of SG E. 3, n. 9. and nnolher in 
the same year, n. IQ. nut printed, tjut yet ac 
good as those that are; and that of 49 £. 3. 
cap. S. so express in tjie point, eq>ecinlly the 
Petition of tlie Commons, that vear^ whicb 
wns read by Mr. Utdeton with tbe kmg'* ai^ ' 
swer so full, and &ee from all exception, ta 
which I refer your lordships, that I knov not 
bow any thing in the norld can be more plain. 
And therefore, if iu parliament ye should make 
nny doubt of thnt which it so fully confinned 
in patlioluent, and in a esse so dnr go abuiu 
by new glo&ses to alter tlie old and good law, 
we ehHll not only forsake the steps of our an* 
cestors, who in cases of small importance would 
answer, ' nolumus mutare leges Angl'^ •' but 
we shall yield up and betray our nght id tbe 



, Cioo^^lc 



STATE TRI.\LS, 3 CuAstis I. IBUB.—OetSieTts'qffheSi^. 



[lOft 



;ie*(at inheritBDce tbe subjects of Engbnti 
Juir, and thai is ihe lavrg ot Ertglnnd, And 
tnil; I bonder hnw anj msn can admit of such 
a gloss upon tiie plain toil, ns tlJnuM mot- 
throw tbe force of the law ; for whereas tlie 
bn of Magna Charts is, iliat no ficcm:in shtitl 
be impriuiDed but bj luwful JudgmciU of his 
peers, or the law of the land ; llierffiire that 
the kiD| hath power to commit without came, 
a X sense not onlj eipretsly contTdrf to other 
Kts of pirlinment, and tfiose especiellj for- 
!iteH;r cited, tmt uni 



liaii not CAQunit, but bj ihe l>i* of tin 
Ae oieiDing most be, u Mr. Attorne; would 
Ure it, that the king mott not commit but al 
bit own pleastire. And shall *e tliink that^sur 
incision were so fnulisb, to hazard their prr- 
aini und «Eiates, and labour so much to ^it n 
liw, sad to linve it thirlj times confirmrd, ihnt 
the king might not comnil his subjecis but>i 
liiiaHn pleaiiire? And if fae did comii^it any of 
Ui •uhjects without a cause shenn, tlirn he 
mnti lie during pleasure, llian which iiuthing 
cu be imaiiued more ridiculous, and cont[ar}> 
to tme reason. 

Fur the Precedents, I observe, tb«t there 
tath been manyshenn, ]>j irtuch it appeals to 
me etidentlj, tliat such as hare bveu ronn- 
tniited bj the king's council, thej liaVe been 
drlirertd upon Habeas Corpus, and that cun- 
stiitlf. It is true, that some precedents were 
brought on the king's part, that wlien nomn of 
llaae peisoni desired lo be delivered by Habeas 
Corpus, the king, or lii* council, ti^ui6«d bis 
■mjestj's pleasure that tli^ should be dcliver- 
ti, or tbe king's nttomej hath come into tbe 
mit, and related the king's command ; hut 
tte teems to nske for the subject ; for it be- 
itiK m his majesty's pnver to deliver them, who 
tj bis special comutand were imprisoned, mny 
KM He nell think, tliat bis majesty would ni- 
iWatthat time have stayed tlicir deliverance 
b; law, than rurtlicred itwitli hialetten; and 
made the prisonen rather beholden to him for 
b grace and mercy, than to the judgea for 
JBstice, had not his nuijeaty known that at that 
(imt ibey ought to linTO been delivered by 
km ! 1 thinic no man would imagine a wise 
king won 1(1 'have eul?i!red his grace and prero- 
gitiva, if any such prerogative were, to be no 
caniinually questioned; and his majesty and 
ha cnuncil io far from commanding the judpei 
DM to proceed to deliver the prisoner by iliein 
mntoitted, nitfaiuit cause sliewn, as that bo 
die other (i<)e, which is all the force of tlie^e 
precedents, the king and the council signified 
lo die Judgea, that ^ey ihinld proceed tn de- 
liier the parties. Certainly if the king had 
cballenged any such prerogative, that a person 
onnnitted, withoot any cause shewn, oi^^t not 
to be dtbTered by »l>e Judges witlmut l«s coo- 
Mnl, it would ha^ aimeared, by one precedent 
or other amoogst nil tbnt have been produced, 
tte bis majesty woold have made lonie claim 
IB Dk^ a pKK^ire. But it appears to the 



contrary, that, in many of these cases, Ae k in; 
or bi> coiincil did (never interpose; and wbere 
they did, it was always in alhrmanon and en- 

couragomeiit in that court to proceed. And 
bcsidi-s, the ivriting of ktteis from his majesty 
to ihe judges to dojusittco to his mtijesty's sub- 
jects, may with as good reason be interpreted, 
that without ibosc Utters tliey might not do 
Jtreticc : also llie king signifieit his willingness, 
tliat such and such persons, nllich were com- 
mitted bv him, thonld be delivered; therefore 
they codld not Lc delirciod without it, which 
is a strange renion. So that finding the lana 
BO full, so m«hy,-nnd so plain in tbe p'liiM, and 
finding, thnt nheucver any were coniqiited, 
without cause shewn,' and brougbl their Ihtbeas ^ 
Curjras, they were delivered, and no commnnd ' 
ever given to the contr:iry, or cUim iiiu'le 'in 
the king's pnrt to any such pterngiitivc ; I mny 
safely concIiiHf, ns the house of commons h:ive 
done; and if any one precedent or mo of Inle 
cnn be ^wn, thnt llie Judges bate-Dol deli- 
vered the prisoners so eomitiittf d, I think ii is 
their fault, nnd to be inquired of. Eut con- 
trary, it seems lo me tn be on undoubted li- 
berty of the Subject, that if he be cuminittcd 
without cause, or without cause slreiit, yet he 
may have some speedv course id bring dunsclF 
to trial, either to justify his own iunnceucv, or 
to receive punishment according to his hiulti 
for God forbid, that an innocent man, by the 
laws of Eugland, should be put in worte casa 
than the most grievous mnlelftctors are; which 
must needs be, if ihis shoulil be, that if a causa 
be shewed, he ihay have his trial ; but if none, , 
he must lie and pine in prison during pleasicre. 
Mr. Serjeant Ashley, the other day, told your 
I'lrdivhips of the emblem of a kii?, but hy his 
leave made wroug use of it. Fur a king bean 
in one hand tbe gloire, und in tlie other the 
golden scepter, the types of sovereignty aud 
mercy, but the sword nf justice is e\et curried 
belore him by a minisii-r of justice; vihicli 
shews, subjects may have their remedies fir 
injustice done, and appeals to liiglier powers: 
for the laws of I'ji}(lBud nr« sn favoiimfale to 
their princes, tu tliey can do ui> injustice. 

1'lierefore I will concinde, lu all dis|>uies I 
hold do, ' Mnpna est veritiu et pravalebit ; so 
1 make no dmibt, we living under so good a 
prince as we do, when this ii represeu'ed unto 
liiin, he Will anawer us, ' Magna est Chariit et 
' pra-vnlebit.' 

From this time to the 9Sth of the same 
month, the House of Commons in a Grand 
Committee spent most of tlieir time in debnte 
about Martial Ijw, and part thereof in giving 
llie lords a meeting at two conferences, .con* 
cemiiig their resolves, in order to a Petition of 
Kigiit, tranfmitted by tlio comnioai to ihor 
lordships. 

Friday, 95tb of April, 1«98. 
Tbe liOrds had a Conference with -the Com- - 
mons, where tbe I/Td Archbishop of Can- 
terbury, (Dr. George Abbot) spake as Al- 
lows: 



163] STATE TJtiMS, 3 Charles I. 162^i 
tbe kiue's prcnigaiive, nor Iwen the Lilierty of 
llie Sutjcct, to ibe danger ol' eiiljer klii)( or 
pijujile. I'Uii is mj^ prolession bel'uie OuU imil 
yuiir lnrd.^lii|j«. 

Juil^e Uo<Wmd^< said. It is no more fit for 
a JiHl^e to decline to give an ■tcoiint of \n> 
doiii;;^, lliaii^ fit a Christian of lii» fuiili. God 
kiioweth, 1 liuve endeavoureil alwaj^i U) Lcep u 
good conscience; for a troubled one, wlm cr.n 
btai' i Tb« kingdom holds of uune but God, 
and Judgments do not iiuss privawly in cliani- 
bcra, but publicly in court, where ev«ry uiii: 
luiiy hear, wliich causttli judi:;uieut to be ^ivcn 
wi'ti inuturiry. Your liinlaliipH biive bourd ihc 
pnrticiiliirs delivered by mj brtthren, liciw tliat 
counsel being assi^ucd la tlio^e four tleiiLle- 
: men, in tl.t: Ultereiid of Micliaelmns Tt- rin tLt-ii' 
cniise receiicd bearing; and upon cuiiEiili-mlioii 
of liie Statutes and Records, we found some n; 
tliiiu f] be according to (he good olii law " 
Ma°iia Cliurca : liu we ibou^lit, tliat they ili'^ 
rot come so close to tfils cose, as tlint h-.y 
tbould be thereupon presently gnuiiei). Jt^ 
lords, tlie Hubens Corpus consists of three puti 
the Wiit, the lUtum upon the Writ ov »i 
dule, and tltc Entry or Kule reciting the H.il-. 
Corpus; Biid tlie Itelurn, Uigetlier kIUi l 
ojiioioo of liie couil, ekber a ' remitlitui-. 
In th 



1)mI, V 



e did, that 



re<ni:iit :r (my lords) they nii£ lit hnic 
new v»ril the ne»t day; and 1 wish tbfi 
hcc-.iu'e it luny be they h»d setn nioit, :i 
had bct-n ensnl of ■ grtat tiibciur. Ai. 
hirdj, ivhen tlie AttorJiey, upon the ren. 
pr.:r!.ed nn entry, we all straitly clmi^ 
ctfrjj, th'it be sb.inld make no ' 



11ke< 



prcJoc 



<:«l u 



(u.yhml.V 
iTiiiLii und ' leniitlitur quosf|ue. I 

■T-t find Hny. i bnve now sjl 
<i><-e!. yenn, and 1 should kiiot^ 
; surely, if 1 had gone in a uiili -. 
dust Hoidd cleave to my don 

' ' e foot in the gr«Vi 



, lb. 



I» 
Bot ■' 

•ernire, divlnum potius est qiiani huniii;. 

L. C.J. sir Nlc/iok, Hj/dr, said, Ho 
not speak with conlidence, unle>s he 
staud right in the opinion of the hon^i ■ 
protested nkat lie spnke l1;e dny btfoi. 
nnt said by h.in »iih any purprjje to i 
npou tlie privil,'L;cE( of this honse. but ■! 
liiat respect whic b by his place he tlin.. 
owed to the king, lie wid, cnncfriii 
pnhit he WHS to speak of, that be v.oii . 
trouble (be lords with things fiiriuerly rci 
wbereio he concurred wiih his bretiin:. 
said, if it weie true ihe king miglit iiol <:■ 
they hod done ivroni( in not partly deli 
for, niy liirdsTsoith be), these Statutes m 
luns bein: njl in foriu;, we meant not to ' 
upon liny of iliem; most of them beiuj' 
in..|it.,ri.-s ujiou ^Ja^nB Chn^ti, : Sut I 
not any ititute that goeth so fiir, tliai : 



itizecy Google 



HM4& 'I'HIAIS, H Cbakles I. 

■•WW anmer, (Ccoriling to the 

— tiinr hnuse. But it is mimifctl 

m-t tM> lliniiked for it, there is a 

.•« in sirectioD to the sanie end 

-<«Mi MiL'li goad liarmuny, tliat I 

ttt^ftjit l«ite to borruvr ■ coiu- 

-••■■•■r, ur iiBtUTuI philosapli^ : 

— ^•■>uiii; aud luned brought to- 

,_- Y...,Kd oil, litile Binivri and 

.:.<. utlicr, tliough it lie still; 

i.u LHju«r to reply, jet theac 

_. , . , juiidcd ctinaDt but work in 

^ .. isi.l uilbfullj report these 

., from whence in due time 

..Jsliipt shall rective acoo- 

■ ^-"^li, about the five Propo»- 
'■•n the Lords to the Hou»e of 

■ ■'■■ril V6, 1698. 
.iv, how we liLe of the Pro- 

Mt resoluiionf of Ibw, nnd 

>iuostioii of them. And at 

> I hope ihej of other plocea 

';heiD, ireof the same luind 

'' llieir lurdihipt lajiog ihcm 

■ .It thoy nould have to be Ihw, 

. ik to ohat comei from ui, so 

: comes from them, and they did 

' '. 1 tbiok there is out gae oF 

' ■' desired aod asked. The first 

fit, fur ibere i* no use of theni in 

lestions. The fourth oe have 

li'liltli iinot 6t tnba had at all. 

I declure that Magna Cbuta and 

'.«, conceived to be declacalioni 

inns of that law, do still itand jn 

intents and purposes. Consider 

. ask : Who douhts whether they 

ceor no? Indeed some have puli- 

lUspia Ghana is hut a charter and 

llut It is an act of parliaoieot; and 

apeak what they wUi, that was tlie 

r statutn till printing came in. The 

were sent down in the king's name to 

tuned, and he prefixed his name, and 

.- ull nboul UcD. 6, ALso the body of 

C i.nrta is, that it is confuted to by 

i»rls £cc and for tbe assent there 

irfu-enth granted, and clearly that 

l-t; without an act of parlinnieiit : and 

--lint it is, that all else in it is to this 

' .11 executioD. Id fonner parliaments, 

■V at least, it was cooifirmed, but it 

I* rii necessity, and yet tbey are surer 

.- ilt-cl»ratian you will now add. For 

<:<!. ihHt his majesty will declare that 

';l<.-(-t hath a Propriety in bis gf»oiit, 

■ • n y of his pettOD ; tbey that drew ibis 

•ii"iinsoraewhaC mora than I understand: 

* ii'it «hat we gain, -Who doubts of uur 

< iv ! [ aever heard it denied, but in tlie 

. uliich i« of ua weii{ht. For the third, 

' iiia|«ty will confirm all just liberties; 

'II (ell what this will produce. It is not 

■.-.juble Ilia majesh with it. Tbe fourth 

.1 to be asUd; iW in all cases witbio 



(170 



t62S — the Liberty qftlu StAjat. 

tbe cognitance of the Common La 
iug tiie Liberties of hit subjects, his m^eMj 
would proceed according to the Common Law. 
1 conceive his msjeiiy never froceeded hut ac- 
cording to law. it may iie lliere were cnmroit- 
ments, yet tlie couftt of justice were open fur 
the parties t j seek justice. And if any thing 
be done against thelnw, there, it is thetuult of 
them tliitiit there. So we shall take it. Butyet 
his majes^ hnth done nothing against the law. 
For the finh, it is not fit to be had, and tliere- 
fore not fit (o be asked. If we ask it parlia- 
mentorily, we shall have n law lo tliat sense, 
and so we shall destroy nur rundnmeutal liber- 
ties, which we have already resolved. Now a 
* coDvenient lime' must be set down. la 
former times thtre was no need of such inno- 
Tutions ; for such law of siale, in a < conve- 
nient time' every man was to be delitered bv 
law. If they were » wise then to told I't 
needless, why is it now necessary? Aad far 
' convenient lime ;' uhat is convenient time? 
Who shall judge of it hut the Judges? Aod 
so ihey now shall have the poiver ot the lord), 
and ot the council. Also ni>w we desire in 
some CBSES th6 prerogative, &c. I would fain ' 
see if anv person may not becommilled at plea- 
sure by this clause, and no man is eiempted. 
At tliis litrle gap' every man's liberty Inay in 

Ihe Cumroons were not sntisGcd with th«« 
Propositions, which were conceived lo choak 
the Pctiiiun </( Riglit, tlien under considetutioii, 
but demurred upon ^ra. 
Monday, 28 April. The Loan Kr.Epen spake 
. to both Houses of Parhnment by the King's 
Command, who was then present. 

My Lord% and ye tbe knights, citizens, and 
burgesses of the House of Commons, ye canool 
but remember the great and important atfain, _ 
concemine tlie safely both of State and Reli. 
gion, declared first from his mnjesly's own 
mouth, to ha the causes of tlie assembling of 
this parliament ; tlie sense wherenf, as it dolb 
daily increase with his majesty, so it ought to 
do, and his majestv dnubts not but il doth so 
with you, since ilie dsngrr increaselli every 
dny, both hy effluxion of time, and preparations 

Yet his majesty doth well weit^li, ihnC this 
expeoce of time hath been occa^oued -ly the 
Debate which hath arisen in both houses touch- 
ing the Liberty of the Subject; in which, as 
bis majesty lakes in guod part the purpose and 
intent iiflhehouses.so clearly Olid frequently pro- 
fessed, that they would not diminish or blemish 
his roval and just pren^live, so he presumes', 
that ye willairconlessita point of extraordinary 
Kfoce and justice in him, lo suder it to rest so 
long In dispute witliout interruption. But now 
his majesty consideringth* length of time whicb 



hour and minute is so precious : and foreseeing 
that tbe ordinary way of debate, tboo^ never 
so GwefuUy hu»t>anded, must, ic reganl ^{ the 



167] £TATETRIAI£, sChakluI. ims. 
Gentlemen of the Hoiue □rCammoDS; The 

tervice of tlie king and safety of the kingdom 
do coll on us, my lords, to give all convenieul 
exwdition, to digpalch some i>f these greiit and 
weishtj busiaesses before us. For the betier 
ellecting wbereaf, mjr lord) have ihoifght fit lo 
lei yuu know, that they do In general agree 
with you, and 4oubt not, but you will o^e 
niih us, to the best of your power, to maintaifl 
and support the rundaineatal lawt of the kiii<;- 
dum, and the fundameutil Uberties of ilie 
Subject: for ihe parricular* which may here- 
after fall in debate, they have given me in 
cliarge ti.Iet you know. That what hath been 

£ resented by you uuto their lordships, they 
JVC laid Qothine ofit by, they are uot out of 
love with any ihiug tliot you have tendered 
unto them ; they haie voted nothing, neither 
are they in love with any thing proceeding from 
themselresi for that which we shall siyaiid 
protHKe unto you, is out of an intendment to 
iDvite you to a mutual and free cunfereuce, 
that you with contiilence may come to ui, and 
vre with confidence may speak with you ; aa 
that we may couie to a conclusion of those 
things, which we bolli ununimously desire. We 
hikve resolved of noihioi;, designed or deter- 
loined nolliing, but desire to take you witii us, 
praying help from you as you have done from 
us. — My lords have thought of some Propoii- 
tiont, which ttiey have ordered to be read here, 
Uid then left with you in writiuK, thatif itseem 
good to you, we may unifbrroly concur for the 
substance ; and if you difier, tliat you would 
be pleased to put out, aild, alter, or diminish, 
as you shalL thiuk fit, th^ so we may cutoe ibe 
belter to the end tlmt we do both so desirously 
emhtace. 

Then the fire Profositidns followint; were 
read by the Clerk of the Upper House. 
1. " That bis maieity would be pleased gra- 
ciously lo dectaie. That the good old law called 
Mwna Charta, and the lix statutes couceived 
to be decUrations and explanations of that 
U«, do still stand in force to all intents and 
purposes. 

3. " That his majpsty would be pleased gra- 
ciously to declare, Th^ acdording to Magna 
Charta, aod tiie statutes afore-named, as 
also according t<i the most antieni customs and 
laws of tbis land, every free subject of this 
realm hathaAindamentalPropnetyin bis Goods, 
and a fundamental Liberty of his ['eraun, 

3. " That his mnjesty would be graciously 
pleased ID declare. That it ii hit royal pleasure 
to ratify and confirtn unto all and every his 
loyal and ftithful subjects, all their ancient, 
several, juM Liberties, Priiilegcs, and nights, in 
as ample and beneficial manner, to all mtents 
Mid purposes, as their ancestors did enjoy the 
tame, under the government of the best of his 
most noble projgeoitors. 

4. " Ttqit liis majesty would be pleased gra- 
(nously to declare, lor the good content of his 



. — Proceedifg» m ParUmmau nlatmg to [1G6 
zance of the common law concerning ilic Li- 
berties of the Subject, his majesty would pro- 
ceed according to tlie common-law of this land, 
nad according to the laws esiubli^hed in ilio 
kingdom, and in no other manner or wise. 

5. " Aa touching his majesty'i royal Prero- 
gative, iiitriniicul to his sovereignity, and iu- 
trusied him withal from God,. ' ad cummuuFm 
' totiu3p<ipu1isalutem,etnoaaddcstructionein;' 
his majesty would risoive nut to use or diteit 
thesamr, to the prejudice of any of his loyal 
people, io the propriety of their goods, or 
Tiberty of their peisons ; and in case, for 
the security of tiii majesty's royal person, 
the common safety of liis peufile, or iba 
peaceable governmunt of tiiis kingdom, bit 
majesty shaU find just cause for reasuu of state 
to imprison or restrain any raan's person, bia 
majesty 1^'ould gracioukly declare, 1 tint wiihin 
a convenient time lie thall, and will express ibe 
cause of the commitment or restraint, either 
general or special; and upon a cnuse lo e>- 
pressed will leave him immediately lo be triad 
according to the common justice of ibe kiag> 

After the rtading of tlie Propositions, the Arcb- 

This ii hut a model lo be added unto, altei«d, 
or diminished, as in your reasons and wisdoin* 
ye shall think fit, ^fteryc have commonicaled 
the same to tlie rest of the members of tb« 

To thn Speech, Sir Dcdlev Diocs, it being xt 
a Free Conference in behalf of theCum- 
mons, made this Keply; 

My lords; it hath pleased Almighty God 
many ways to bless the knights, citizens asd 
buigesscs, now assembled in parliament, with 
great comfort, and strong hopes, that this will 
prove as happy a parliament as eter was in 
England. And in their consultations for the 
service of bis majesty, and the safely of this 
kingdom, our special comfort and strong hopes 
have risen from ths continued good respect, 
which your lordsh^s so nobly liave been pleased 
to sheiv unto them ; particularly at this present, 
in yoar ■» honourable profession to agree with 
them io general, in,ilesiring to maintain and 
support the fiindamental laws and libertief 
ofGngland. 

The commons hate commanded me in like 
sort, to assure your lordships tliey have been, 
•re, and will be, ai ready to propu^n the just 
Prerogative of his majesty, of nhich in all ibeir 
Arguments, Searches of Records, and Besolu- 
tions, Ihey have been most carefiil, according 
to that which formerly was, and bow again H, 
protested by them. 

Another noUe argument of your honounble 
disposition towards tbein is expressed in this, 
Hiat you are pleaaed tu expect no present an- 
swer from tbeui, wbo are (as your lordshipa in 
your great wisdoms, they doubt not, have coa> 
sidered) a l^eat body, tint must advise upon all 
Mw Piopnuiioiu, and resolte upon tbeu be- 



169] 



STATE TBIAIS. 3 Charles I. 1628.— ifte LUxrtf qfilu Sufy'^ct. 



[ITO 



bit ihej can dre uuwer, according to the 
ucient onler nf their house. But it a mnnileit 
m geoeial, God be tlmnked for it, there is a 
|mt concurrence of ■ITi'ctioii to the same end 
a bolii bou>e«, aod sucli gnoi) harmoiiy , that I 
ncreat yom lurdsliips leuie to borrow a coin- 
jamoo Irom nature, or natural jiliilowph^ : 
di two lutei HeJl simag uid tuned bruughi lo- 
jtlho', if one be pLijed on, litile ilrnvii nnd 
BicbwilJ 9iir upon [lie other, though it lie Mill; 
SI [hough we hrive no power to reply, jeX the>e 
things laid and propounded cnnnot but work in 
lor hearU, and we will fuithfuUy report these 
puugts to our house, from wheuce in due time 
(■e hope) jour lurdabipi shall receive a cou- 
tcQlful Buswer. 

Hr. Seldeh's Speech, about the live Proposi- 
tianiseni from Ihc Lords to the House of 
Communs, April iO, 1693. 
Out debate 1) now, hon we like of the Pro- 
pwtion^. Ours were resolutions of law, nnij 
MDtn can make question of them. And as 
■e are coiistuiit, so I hope thej of other phtcet 
ibat have neigbed them, are of the lame luind 
■ilh us. But DOW (heii lurdsliips lajine them 
bj, propound wliat ihcj would have to be law. 
Ailbej maj speak to vthat cotuei frnin us, so 
a»j we to what cornea from them, and the; did 
iDnie OS thereto. I think there is nut one of 
iIk firs fit to be desired and asked. The first 
Ikree are not fit, for there is no use of them in 
lime great queatioiu. The fourth we have 
lirtadj, and the llt'cli is not lit ti> be had at all. 
Tbefnt 'a, to declare that Magna Chula and 
li»iii (laCutea, conceived to be declarations 
mil eiplaoatiuuE of that law, do iiill stand in 
firce to all intents and purposes. Consider 
*bt it is we Bsk : Who doubts whether the; 
naaduilbrceor no? Indeed some have puli- 
bhrd that Magna Charta is but a charter and 
Mlaw. But it ii an act of parliament ; and 
kt ncD apeak vrhat die; wdi, that vras tde 
MioD of itBtates till printing came in. The 
Mnuet were sent duno in IM king's name to 
WiirocUimed, and he prefixed his name, and 
ihii was till about Hen. 6. Alho the bod; of 
Htpn Charta is, that it ii contented to b; 
•U (he earls, &c and for the assent there 
■u a fifteenth graaied, and clear!; thut 
nuwt be without an act of parlinment: and 
10 coDiunt it is, that all ebe in it is to this 
^;p«t in execution. Id former parliaments, 
ij Aiity at Icatl, it was comfirmed, hut it 
ni not of-oecessitj, and jet the; are surer 
iW this declaration jau will now add. For 
i^HCond, that his majest; will declnre that 
t<er;iub|ect hath a Propriet; in his gooils, 
*h1 lihen; ,of his person ; the; that drew tbis 
Mi^ mean somewhat more than I understand : 
1 know DO! what we gain. Who doubiit of our 
tnfiktj I I never heard it denied, but in the 
palpit, which ii of uo weiitht. For the third, 
Ihu bis m^ew; will confirm aU Just liberties ; 
■We caa lell what this will produce. It ia not 
h we tronble Lis majesR with it. The fourth 
••KtfittobeBtkcd; Tbu in all cases within 



the cognizance of the Common Law concern- 
lug the Liberties of his subjects, bis majcstj 
would proceed Hccording to [lie Common Law. 
I conceive hiB niajest; never proceeded hul ac- 
cording to law. itmu; be there werecnmini&- 
ments, yet tlie cDufts uf justice were opeo for 
the parties tJ seek juuice. And if an^r thinj 
be done against the uw, there, it is the tault of 
them thatiit there. So we shall take it. But;et 
his majes^r hnth done nothing ngniust the law. 
For [he fifth, it is nut fit to be hud, and tliere- 
fore Dot fit to be sskcd. If we ask it parlia- 
mentarily, we shall have a law [o that sense, 
and so we shall destro; our fundametital liber- 
ties, which we have alreiuJ; resolved. Now a 
■ convenient lime' must be set down. In 
former times tiiere was uo need of such inno- 
vations; for such law of BLa[e, in a ' conve- 
nient time' e\'er; man was to be delivered by 
law. If they were so wise then to fcold it 
needless, wb; is it now necessary ? Aod for 
' convenient time ;' » hat Is convenient time t 
Who shall judge of it but the Judges? Aad 
BO ihey now shall have the power ol the lords, 
and ol Che oiuncil. Also now we desire in 
some cases ihd prerogative, &c. I would fain 
see if an; person ma; not becommitted nc plca- 
isure by this clause, and no man is exempted. 
At this litile gap' ever; man's liberty tnaj in 

7'he Cuinmons were nut saciificd with thesa 
Proposi lions, which were conceived to citoalc 
tbe PctiiKiu 9r night, then under consideration, 
but demurred upon tl>eiu. 

Monday, 38 April. The Lord Kccfer spake 
. to both Houses of Parliament b; the King's 
Command, who was then pretent. 

M; Lord*, and ;e (be kn^hts, citizens, and 
burgesses of the House of Commons, ye cannot 
but remember the great and important alTair*, 
concerning [he safety both of State and Reli- ' 
gion, declared first from his mnjetl;'* own 
mouth, to ba the causes of the assemhlins of 
this parliament ; ilie sense whereof, as it doth 
dailj increase with his majesty, so it ought to 
do, and his majeatv doubts not but it doth so 
with you, since the dsngfr increasetb every 
day, lioth by effluiinn of time, and preparations 
of the enemy. 

Yet bia majesty doth well weinh, that thi* 
expence of lime haih been occuluued jy the 
Debate which hath arisen in both houses Coucli- 
ing the Liberty of the Subject; in which, as 
his majesty takes in good pari the purpose ami 
intent iifthe ho uses.so clearly and frequently pro- 
fessed, that they would not diminish or blemish 
his royal nnd just prerogative, so he presumes', 
that )e will bII cunlessic a point of extraordinary 
Krace andjusiice ih him, to suSer it to rest to 
long in dispute witliout intemipliun. But now 
his majesty conuderingthelengih of time which 
it hatli already taken, and fearing nolhing SO 
much as any future loss of tliat, « hereof every 
hour and minute i^ so precious : and foreseeing 
that tbe ordinarv way of debate, thoagh never 
H carefully husbanded, must, in regard yf ihs 



171] STATE TRIALS, SCuaklesL 16^8. 

form of both Iiouses, neceuariW take more 
lime than the affairs of Chriitendom can pei^ 
■Dit ; his mnjest?, out of liis great princely care, 
h»t1i thought of ttiia expedient to Ehott«n tlie 
business, bj dectoring tbe clearness of his own 
heart iind intention i and therefore liaCb com- 
iDAnded me to let your know, 'That he holdelh 
' the Statute of Magna Charta, and tlie other 
' six Statutes insiaud upon for the Subject's 
'Liberty, to be nil in force, and assuva you, 
' thai he will mni^tain all bis Subjects in the 
'just Freedom of.th«r PersoDi, and Safety of 
' their Estates : and that he will goTern accoid- 

* itij[ 10 -die laws and statutes of this realm; 
' and that ye shall find as much Security in his 
' nmjesty's royal word and promise, as in the 
' strength of any law ye can make ; so that 

• hereafter yc shall never have cause to com- 
'plain.' The conclusion is. That bis majesty 
pniyeth God, who hath hitherto blessed this 
kiiigtfam, aad put into his heart to come to you 
this day, 10 make the success thereof happy, 
both to king and penple; and cherefuro ho de- 
sires, diat no doubt or distrust may possess any 
man, but that ye will all proceed speedily and 
unanimously to the business. 

The Commons beina returned from the lords 
house, Mr. Secretnry Cook pe.-suaded them to 
cbmply nitb the king. . 

His majesty, said he, puts us in mind of the 
great important affain of the state, and of lit* 
sense thereof, that by effluxion of lime in- 
crNUjeth in him, and he doubts not hut that 
it doth increase in us. Ye see his majesty's 
moderation ip ihs interpretation of all our ac- 
tions; besajth, that he tiopes wo have the same 
sense h« hath, lie is pleased to cniisider of the 
occasion of eipenfe of lime that grew from the 
Debates in both houses. We see how indul- 
fent he is, that however the affairs ofChritiea- 
dom are great, yet he otnita not this, nay, he 
cakes in good part our Proceeding and ouj 
Declarations, that we will not impeach the 
FrertKutive: also his miijfesty presumes, that 
we will confess, that he hath uted eitroordi- 
nary grace, in that he hath endured dispute 
■o long, be ackoowledgeth it justice to stand 
as we have dune. ' 

Further out of a princely care of the public, 
he is careful no more lima be lost ; and be- 
cause he sees same -eiCraordi nary cntirae to be 
taken to satisfy us, he observes, tliat in the 
form of the debatr, such length is re<]uired as 
the nature of the business will not endure. It 
is to be presumed, that his goremment will be 
according'to the law : ne cannot hut remember 
what his father said, ■ He is no king,butaty- 
' nuit, that governs not by law :' but this king- 
<lom is to be governed by the Common Law, 
and his mtytstf assures us so much ; the intei^ 
nretution is left to the Judges, and to bia great 
Council, and all is to be regulated by the com- 
mon law. I mean not Magna Charta only, for 
that Magna Charts wai pait of the common 
law, and (be ancient law of this kingdom ; all 
our differCDce is in the applicUion of this law, 
•ltd how ibis Uw, with uifferenc*) it derived 



, — Praxedmgt in I'arliamau relating to [17% 

into ever; court. I conceive there are two 
rules, the one of brais, that is rigid, and will * 
not bend, and that is the law of the KingV 
Bench, this law will not bend ; and when it 
lights on subjects fitting, if it do not bend, it is 
unjust ; and there comrs in the Law of Chan- 
cery and equity ; this is applicutioD of law in 
private men's causes, when it comes to maim 
et luum. And tbui the general governmentnf 
rases, with relation lo the common stat^ of the 
kingdom, is from the Council-board, and there 
tlvy are to very from the law of the kingtloni ; 
suppose it be in time of dearth, propriety of 
goods may in ihnt time be forced, and be 
brought to the roatket : we saw the eijierience 
of it in coals in London, and the Council- Botird 
' caused them to be brought forth and sold. In 
a time of Pestilence men may be restrained : 
if a schism be like to grow in a Church, the 
State will enijuire after the fevoure™ of it : 
if tliere be fear of an Invasion, and it be en- 
couruged by hope of a party among us, it is in 
the pnwer of the government to restrain men 
to their houses. 

In the composure of these things, there i* 

great diffi^rence: wltat differences have been 
etwceu the caurtt of Chancery and King's- 
Bench f It is hard to put true rlifference be- 
tween the king's PrerogRlive and our Liberties, 
His mnjesty saw eipeiice of timi; would be 
prpjudicial ; it pleased God to move bis jnaa 
jesty by a divine hand lo shew us a way to 
clear all our difficulties, let us attend to nil 
the para of it ; there be five degrees, and there 
is more assurance than we could have by any 
law whatsoever. His majesty declares, that 
Magna Ghana and the other Statutes ate in 
force ; this is not the first lime that the Liberty 
of tlie Subject was inlringed, or was in debate 
imd confirmed ; all limes ihtiught it safe, that 
when they casie lo a negnti»e of pnwer, it wbi 
hard to keep government and liberty togetber: 
hut his majesty stooped not there ; but accord^ 
ingtolbesenseortheseUw<i, that he will gorem 
his subjects in their just Liberties, he assure* 
us oiir liberties are just, tliey are not of grace, 
but of right ; nay, he assurer us, be will govern 
us according to ibelavis of the realm, and that . 
we shall lii^ as much security in his majesty*! 
promise, as in any law we cop make, and whn^■ 
8oe\'er law we shall make, it must come to his 
m^GSt^'s nlkiwnnce; and if his majesty find 
cause in hts government, he may not put life to 
It: we daily see all laws arc broken, nod all 
laws will be broke for the public gond, and the 
king may pardon all offenders ; his majesty did 
see, that tne best way to settle all at unity, i* 
to express his own heart : the king's heart )• 
the best gulder of hit own promise, his promise 
is bound with his own heart. What prince can 
express more care and wisdom f 

Lastly, be saith, ThatKereafteryeshallneTer 
have the like causa to complain : may we not 
think the Breach is made uuF Is not his ma- 
Jestv engaged in his royal word ? The conctosion 
IS lllll of weight 1 and he prays God, that as 
God hath blessed thii kiogdiun, and put it intn 



ITS] ETTATE TRIALS, 3 Cmablm I. ieHB.—tbe Liberty qf the Si^at. 



[174 



bit beut to rone •mong^t us, m to make this 
da; Kiccesslul. ' Tbewretliofa biogia likelho 
' nnring of a lioo,' and ill Uws with bis wrath 
■re to no eSecC ; but ' the kini-'i fmVour n like 
'tluilewupan the grass,' tbece nil will prosper; 
uil God lo&de the iiutruineiits to unite all 
ttam. Hia nrnjesi; having thus dischnrged 
tiiniMlf, heprajrs ui to proceed 10 llie business 
liiatia modi coocems him. /r. his mnjestjr 
liili now shewed biinsclf the hn( of kin|s, let 
gj leknooledce his msjesty'ii goodness, and rc- 
Utd tu tLai UuioD which we all desire. 

Bat this mo^njvBs not received with gene- 
nt Bcceptaiion ; and 

Sir Benjamin Sudyard replied to it i . 

We m now upon a great Business, and ihe 
nanntr o{ bendliiig it uikj be as great hs the 
Wsinna itself. I need not lell jou, that Li- 
batj is a precious thiog, frir every inun may 
Kt i'u mtn price upon it,' stid he that dotli not 
(aJtie it deserves to be valued accoTdiugly. 
For my own part, I am clear without scruple, 
thai wbat.ne Dave resolved, is according lo the 
lav; and if any Judge in England were of a 
caDlniy ouinioD, I am sure we should hare 
beard of bun ere now. Wiihouc all question, 
tbe rerypoiut, scope, and drift of M^gua Charts 
>u, (0 reduce the regal toa.l(gnl power, in 
natwr of ImprboDiDCDt, or else it had not 
beta worthy so much contending for. 

Bat there have been Precedents brought to 
ptere the practice and interpretation of the 
in. I confers I have heard many Precedents 
if utility and respect, but none at all of truth, 
AT of law ; certainly there is no contt of justice 
b En^and, tbnt wiU discharge a prisoner coin- 
nilted by the king, regt inamnllo, without 
tcqiwiting the king; yei this good manners 
was nerer maile, or mentioned D3 a legal part 
of tlie delivery, , 

It b objected, That the king ought to have 
ttiBi left and deposited in him : God forbid hi 
ke should : anif I sny, that it is impossible t 
lake it irocn him, far it Ues not in the wit of 
msn to devise such a law as should be abli 
cam[irehend all particulars, all accidents, 
tliat exmordinary cases mii^t happen, whi 
■ben they cotne, if they he disposed of for the 
cnsmoii good, there will be no law againdt 
tkna, yet must the law be general, for othei- 
>ise admisnoils and exception* will frei, and 
est oat the law to nothing. God himself has 
mutituted a general law of nalore, to gnvei 
the ordinary course of things, he hath made r 
hnfor mirudes; yet there i» this observation 
cf them, that they ore rather ' pneter naturam',* 
than' coutra naruram,' aud always' propter bo- 
'dos fines:' fur king's Prerogatives, arc ratliei 
IwDcles the law, thaa against it ; and when thei 
are directed to right ends for the public good, 
(Ik^ are not only concurrlnt; laws, but even 
lai in angularity and excrllency. 

But (o come nearer, Mr. Speaker, let a: 
OMHler where we are now, what steps we iiavi 
■He and puned ; the kii^^i learned Counsel 



have acknowledged all ih^ laws to be still in 
force: the Judges have not allowed any judg- 
ment againtt these laws : the Lords also have 
confessed, that ihe laws are in full strengtli; 
they have further retained our Resolutioiu en- 
tire, and without prejudice. 

All thia hitherti) is for our ailvantage; but 
above alt,hls majesty has this day, himself being 

Eublicly present, declared by the niuuth of the 
ord-Keeuer, before both the houses, That 
Magna Cbarta, and the other six Statutes, are 
still in force ; that he will maintain his subject* 
the Liberties of their Persons, and Proper- 
ties of their Goods : that he will govern them 
according to the Laws of ihc kingdoni; this Js 
a solemn and binding satis&ction, expressing 
his gracious readiness to comiily with his people 
in ^1 their 'reasonable and just desires. 'The 
king is a eood joon, and it is no diminution to 
- king to lie called so; for whosoever is a good 
an, shall be greater than a king that ia not 
I. The king certainiv is very tender of hia, 
present honour, and of his fnrae hereafter : he 
will think it hard to linvo a worse mark set 
upon his government than upon aity of his an- 
cestors, by exlraordioary restraints; his ma- 
jesty hath already iniimaled unto us by a mes* 
sage, That he doth willingly give way to have 
the abuse of power reformed. By which I do 
verily believe, that he doth very well under- 
stand what a miserable power it is, which hatli 
produced ao much weakness to himself, and to 
the kingdom; and-it is our happiness, that be is 
BO ready to redress it. 

For my own part, I shdl be very glad to see 
thnt good old decrepid law of Magna Chnrta, 
which hath been kept so long, and lain bed-rij 
as it were; 1 shall be glad to see it walk abroad 
again with new vi$(Our and lustre, attended and 
followed with the other six Statutes : question- 
less it will be a great heartening tu all (he peo- 
ple. I doubt not, but upon a deCatiog Con- 
ference with tlie Lord), we shall happily fait 
upon n (iiir and lit a 



in the point, against imprisonment for Loan* 
or Privy-Senls. As for inlriruical power and 
reason of state, they are matters in tfie clouda, 
where I desire we m*y leave ihem, and not 
meddle with them at all: lest by the way of 
admittance, we may lose somewhat of that 
which is our own already. Yet this by the 
waj I will say of Renson of State, That, lu tho 
latitude by which it is used, it bnlh eaten out 
almostj UDt only the laws, but all the religion 
of Christendom. ^ 

Now, Mr. Speaker, I will only remember you 
of one precept, and that of llie wisest man ; 
' Be-nat over wise, be not over just i' wid he 
gives this reason, ' for why wilt thou be deso- 
late V — Sir, if justice and wisdom may be 
stretched, to desolation, let us thereby learn^ 
that moderation is the virtue j>f virtues, and the 
wisdom of wisdoms. Let it beourmasier-piece 
so to carry our business,- that we may keep par- 
liafnents on foot : furasioogas they metre- 



175] STATE TRIALS, SChablesI. J 62 

«]uent, iliere Will be no irregular power; which 
thMugh it cannot be bmkeii at onc«, yet iii sliort 
time it nil) ttide mid moulder ^wn; : there ciin 
be li» totnl or final loss or Liberties, but by 
loss of Porliiimeiits, As long u tliey last, 
what we cannot get at one time, we nmj have 
Bt another. — Le» n^i man tliink, that what I 
have snid is the lahf^uBKe of a (jrivate end, my 
aim is upmi the giwd sudleiis at the whole; for, 
I Ihaiik Uod,my mind standsabove any fortune 
that is to he got by base nnd nnworthj means : 
no man is beund to be rich or great, no, nor tn 
be wisL' ; but evL-ry man b bound to be honest, 
cut of which heart I hate spoken. 



April, 1020. 
Gen lie men ; For God's take be wbe in your 
will-Hwant leal : why du yoy ai^ue away pre- 
cious time that caa never be revoked, or re- 
£ aired f Woe is me! while we dispute, our 
icudsperiiliiaudwemust Tollow them. \Vhere 
■re we, if we bieok ; aad (I tremble to think) 
we cannot but break, if we hold so stiff. Oar 
liberties and Prapriedct are sudicieatly declared 
to be sure and legal, our Remedies are clear 
and irrefragable ; what do we fear, every sub- 
ject sees the way now chalked out for future 
luMice, and who dares benceforlh tread besides 
It? Certnitily whilst Parliaments live, we need 
not mis-doubt tho violations uf our Freedoms 
Mid Rights ; miy we be but where the inw 
found U5, we shall sufficiently enjoy ourselves 
and oorsi it is no season to search for more ! 
O let us not, whilst w* over-rigidly plead (or an 
fii'her strain of safety, put ourselves into a ne- 
CL'^ity of ruinand uiter despair of redress: let 
us not, in the suspicion of evils that may be, 
' cast ourselves into a present confusion. If you 
love yourselves and your country, remit some- 
ihingofyourown terms; and »nce the substance 
is yielded by your noble patriots, stand not too 
rigorously upon points of circumstance ; fear 
not to trust a good kin;, whn, ailer Che strict 
laws made, must be trusted with the execution. 
Think that your country, nay Christendom, lies 
on the mercy of your present resolutions. Re- 
lent, or farewel welfare. From him whose faith- 
ful heart bleeds in « vowed sacrifice for his king 
' and country, Exeteb. 

Upon this Debate it was ordered. That • 
Committee of Lawyers do ilraw a Bill, coiitBin- 
ittg the substance of Mngna Charta, and ihe 
other Statutes, that do concern the Liberty of 
the Subject; which buiiness took up two whole 
days. 

Mr. Seldbn's Splecb at ihe Comniiuee about 
the Bill fur Mi^iia Charta, and the Liber- 
ties of the Subject. April 38, 1698. 
I would have the violation tenderly mention- 
ed. Let us set down the Statute of Magna 
Charta. 13 Hen. 4, it is adjudged in the Pfti^ 
liament Roll, that the Statute of Tnllaae is an 
Act of Parliament. It is not entered in the 
Statute Roll, ud it wu 34 Ed. 1. 19 Ed. », 



.—Procetding) m Pariiamaa nUning to [\16 

rot, cUus. mem. 15. ' Les coraens priont Jou 
' divers fuer' prise et imnrison per Bccttscment 
' depersons malevolent Ion ne filer' indict ace' 
' al ley del terre, ils priotit que lis qne sont 
' prise sans indictment veignont en Chancery, 
' et que droit serra fait, Et roy vtilt que nuj 
■ serra prise.' But this is not in the Parliament 
Rolls Ed. S, c. 9. l*Ed. 3,c. 1,'thatlliere 
' shall be no kid nor charge but hy Parliament.' 
Q5Ed. 3, c. 4. 'None shall be attached by pe- 
' titioii without presentment, or an original writ.' 
25 Ed. S, no, 16. < Item, priont les comeiit 
* que les loans soient release, et null serrn com- 
' pell de Rtire arrere encontre les franchises del 
' terre. Le roy le pie st." 28 Ed. 3, e. 3. ' Nul . 
' serra unsie de lerre ou tenements sans due 
' proe'es del ley." 3Ci£.3,no.9. 'QQelegrund 
' Charter serra duly observe, et null serra im- 
' prison sur special command,' 36 Ed. 3, no. 
30. ' Que nul serra imprison per spectnt com- 
' mniid.' 30 E. 3, no. 34. <Si BM^un hoinesoit 
' Brieve contre lis articles, avanl dit veigne en 
' Chancery et droit serra fait.' 87 Ed. 3, no. 10. 
' lis la desire que le grand Charter et especlal- 

37 Ed. 3, c. IB. ' II est cnnteine en le grand 
' Charter que nul setra imprison, ttc. ils que 
' font tiel. Sec' 38 Ed. 3, no. 10. ' Les comens 
' priont que le grand Charter et les autres Bta- > 
' tuts toient execute at que breves serront 
' grauntez al cesluy que sue pur ceo, et li ascun 
' Judgment soit fait, il serra void.' 

I'hiLTsda; the Islof May,Mr.SecretaryCook 
delivered a Message &om his majesty, vii. to 
know whether the house will rest ou his Royal 
Word, or no, declared to then by the Lord 
Keeper; which if they do, be assures them It 
shalJ be royally performed. 

Upon tliis there was a silence for a ftood 
space I then<Mr. Secretary Cook proceeded: 
This silence invites me to a further speech, and 
further to address myself; now we see we must 
grow towards an issue. For my part, how con- 
fident I have been of the good issue af tliitpar- 
Unment, I have certified in this place, and ebe- 
vrhere, and I am still confident therein ; I knnir 
his majesty is resolved to do as much as evtr 
king did nir bis sabjects : all thit debate halh 

Srown out of a sense of our sufferings, and « 
esire to make up again those breaches that 
have been made. 

Since this parliament begun, hath there been 
any dispense made of that which hath tbrmerly 
been done P When means were denied bis n)n<. 
jestj, being a yonng king, and newly come to 
his crown, which he found engaged in a war, 
what could we expect in such necessities? His 
m^estj called this parliament to make up the 
breach : his majesty assures us we shall, not 
have the lily cause to complain ; he assures, 
the laws sbnll be established, what can we 
desire mare; all is, that we provide for pns- 
teriiv, and tliBt we do prevent the like snBering 
for the future. ' Were not the »«me means pro- 
vided bv them betbru us? Can we do morc^ 
We are' come to the Liberty of the Subject*, 



in] 



STATE TRIALS, S Charles I. 



■ad tbc ProtigMlte oT the King; I hope we 
■hiU not add any thing u> ourselves, to depreu . 
iHm. 1 vill not dinae, I think ne iliall find 
didia]lt}> with the king or triih the lords; I 
■bill not deliver my opinion u a couniellor to 
hi) nujestj, wbicb I will not juMifjr and say 
here, or it the Council-hoHrd. Will we in this 
DKciitif girive to bring ourselves into & better 
condition and greater liberty thnn our fhlhi'M 
W, and the crown into 'a worae than ever? I 
dare Bot adviie his majeaty to admit of that : 
If thb that we now desire be no innovation, it 
isallconlained in tboie actaand statutes; and 
vbatwever else we would add more, isadiiniiiu- 
tiea to the kind's power, and nn additlun to 
our own. We detU with a wise and prudent 
priiie^ that hath a iword in hia hand for our 
|Dod, and chia t;ood is supported bj power. 
Do not think, diat by cases of law and debate 
tn can make ihat not to be law, which in ex- 
jmience we every day find ncccisarj,— Give 
me leave fnely to tell yon, that 1 know by et- 
peneace, ihat by tht place I hold under his 
majesiy, if I will diachnree the dutyofrny place 
and the oath I have taken [o his mnjesty, I 
most commit,. and neiiher express the cnuse to 
tlie poler, nor to the judgm, nor to any cuiin- 
•ellor in England, but to the king himself; yet 
do not think I go without ground of reason, or 
laka this power coEmnitted to me to be un- 
tiniiedj yea, rather it ia to me n chaj^e, bur- 
Ibec, and danger : for if I by this pofi er shall 
conunit the poorest porter, it [ do it nnt upon 
ijostcnow, if it may appear, the burthen will 
fall upon me heavier than the law can Inflict,' 
fori shall lose mj credit with his majesty, and 
■>y place. And I beseech you consider whe- 
ther diaae thai have been in llie aame place have 
not committed freely, and not any doubt made 
of it, nnrany complaiDt made by the subject. 

Sir Ratert Fhiilipt hereupon &pake thu): 
That if the acords of kings strike impressions in 
the hearts of subjects, then do these words upon 
this aceasion strike an impression in the hearts 
afusall: to ^eak in ■ plain langaage, we are 
mm come to the end ot our journey, and the 
*etl disposing of an Answer to this Mfa&age, will 
pre happiness or misery to this kingdom. Let 
' M Mtthe commonwealth of England before the 
tjt% iif hii mnjesty, that ve may justify onr- 
wlies, ibat wehave demeaoed ourseli ' 



*lh to his majesty. 
Br. Hat; '■ '' 



HacluctU of Lincoln's-Inn, 1 May, 1628, 



Sir; I cboae ntlier to diicorer my weakness 
ki ifieaklng, than to betray my conscience b^ 
uienee: my opinion is, that we shall dowel 
totally to omit nur Resolution nut of this Bill 
tad rely only span a conlirmatinn of the laws 

The Objections mude a^inst this opinioi 
■re two. The first is, that we sliatl thertby 
Rcede fram our own Reiolution. 

'fbe second, that by a biire confirmation oi 
ibeold laws, without inserting nfonr Resolution, 
by way of eiplanatino, we shall be but in tlie 

For tbe fitit, thM though we detire only a 



1(323.— **e Liberii/ qftke SubjKt. [ITS 

confirmation without addini; of our Resolution, 
do not thereby recede from our Resolution, 
:asoD thu) : Our [tj»olution was drawn out 
LhescnseoftliosebwSjWhich are now desired 
be confirmed, S'> that no questinn can be 
made by any of us thai have tlms ileclared our- 
selves, but that our Ecsn lotion is virtually con- 
tained in the^c laws. If ihat be so, how can 

acceptance of a confirmation of these laws ■ 
be a departure from our Eesolntion f — Nay, ra- 
ther we think the contmry is true; he tiuit 
doubt!!, that by coufinnntiori of these laws our 
Resolution is lint hervhy confirmed, d<iuhls wbe- 
ther we have justly deiluced nor Hesolutioiis oirt 
of those laws, nrtd so calls our Resolution) into 
(jueitiun, — This argument alimc is. in my opi- 
on, ft full answer to that first Uhjcction, that 
desiring a bnte ronlirmntinn of those laws, 
r depart from our Rr solutions. 
The second OUJeciiiin is, that if we have 
nothing but a cnnNnn-.tiun we are In no better 
case than wc were I (lore th'<¥e late tirdatiuns 
of the law. This I deny, and do confidently 
1, that although vcc hnve no mure than a 
rtnation of tliose Inns wbi< h arc recited in 
the bill that is now before us, vve shall depart 
hence in far hetlir cnte than we CMme, and 
in divers respects. 

Some of the laws recited in this Bill, aqd 
desired to be confirmed, are not printed laves, 
nd are known to few professors of the law, 
nd much lets to others, and, yet thev ars 
iws of as great ennsfqucnee for the , J.ibtrty 
of the Sutjecf, if not of greater, tbaa any 
that are printed: as namely 35 I'^iv. 3, no. 
1. ' That Loans agiiin^t t^e w ill of the lender 
are agniu^t reason and the freedom of the 
realm.' 36 F.d. 3, no. 9, by which Imprisoti- 
ments by spcrial commandment without due 
process are forbidden. - These two are not 
printed.— That excellent law De Tallegio aoa 
corKtdcndo in prim, hath in a public court been 
by a ([rest counsdldr said lo be bui a Clinner, 
and no law.— :The statute 1 Rich. 3, apinst 
Benevolenctvis ^'S some opinions in prmt an 
absolute law. If we can get all these good 
laws, besides those six other, which are ex- 
positions of Mai?na Charta, in the point of the 
freedom of our persons, to be confirmed and 
put in one law, to the easy view of all men, ia 
not our case far better than wbcn we caine 
hither? 

3. Will not the occasion of the maliug of 
this law of confirmation, so uiitorioualy known, 
be transmitted to all posterity? Cettaitily it 
will never be forgotten, that the occasion there- 
of was the imprisonment of those loriliy Gen- 
tlemen for not lending, and the Resolution in 
the Ki»t'i-Beneh in denying to bail them ; and 
is not tfie occasion of the making of a law a 
good rule f) expound it? If so, then by giving 
a contirmHtion upon this occasion, wc have 
beitereri our case very much. 

3. Have not the Jutlges in the King's- Bench, 
in open parlinment, upon out complaint, dis- 
claime.l io linve given any Jud!;ment in tin 
poiat ? Which generally belprc by the pnrlia- 



ITJ] VTATE TRIALS, sC^UlesI. l6(iB,—Proctedmgi in PurliaaKiiH^Mtiag Io [IcO 
And 10 ttie d>j fbUowinfi tiiey had &nh9f 



ineot waa otlienvise coateived^ for now the* 
saj.iiwMbuinD'Award and no Judgment, will 
luch B DoiorioLU net upon so impuitant an oc- 
casion in so public a place be quickly forgot- 
ten ? Nay, vJill nol ihe memory of it for ever 
remain upon record f Is not our ca&e then 
much better then ivhf n we came hither ? 

4. Will not ihe UemluCion of tliis home, and 
nil our srsuments and reasons against impri- 
ionment without a cnuse expressed (wliicli no 
doubt by tbe course ite bate cuben uill be 
transferred to postprity) be n great means to 
nay any Judge hereafter from decUrlng or^ 
judgment lo the miiCiary, especially if there 
De likelihoud of a pnrliaiuent i Is not our case 
in this very much uneuded ? 

Lastly, Have we noc received Propositioai 
from the lunU, therein, amongst other tUngj, 
they declared, that they are not out of love 
with our proceedings? Is not lliis a ueat 
strengthening to it? But after so lung, d^te 
snioogst them about it, they cauiiot take any 
just exception lo it; and dolh not this also 
^uch amend our case ? 

From all these reasons, I conclude that the 
lecnnd Objection, that by a confirmation we 
■re in no better case than when ne came toge- 
ther, is also a weak ohjeclion. 

Now for Reasons to move us to proceed in 
this course of accepting o confirmation; ]. We 
' have his majesty's gracious promise lo yield to 
a, conlirniation of the old laws, fram which we 
ID ny rest mo^t assured he will not depart; if 
Ve tender him, withal, our Pniposicinn to be 
eaacted, we have cause to doubt that we shall 
lose both the one and the other. 3. We are 
no less assured of the lords joining with us, for 
in their propositious sent to us tJiey have deli- 
Tered clieinselves to that purpose : this is then 
B secure way of getting somewhat of great ad- 
vantage to us ; as we have gi;eat hopes, and in 
B manner ataurauce on this side ; so on the 
other side we have great doubts and fears, that 
by offering our Resolution to be enacted, we 
shall lose all. — For first we have bad already 
experience of the lords, tliat (hey are not very 
forward to join with us in a declaration o( our 
Proposition to be law ; if they stumble at a 
declaration, much more will they, in yielding 
to make a law in tbe tame point. And have 
ue not much more cause to doubt that his ma- 
jesty will not yield unto it, seeing It toucheth 
him so near^ Is it nol tlit notice of his plea- 
sure that hath wrnught ihuc with the lords 1 

If we shoi^d clog out Rill with our Proposi- 
tion, and it should be rnectcd by the lords, er 
by the king, is not oar Resolution much weak- 
ened by it; aiul are we not then in far worse 
case than before we made it? OurResohition 
for the rejecting of our Prupositioo, will tend 
to a justification of alt tliat hath- been done 
'against ui in this great point of our liberty.^— 
Let us then, like wise men, confoim our desire 
to our hope*, and guiilc our hopes by probabi- 
lities; othet [lesircs and other liopes arc but 
This ii my poor opinion iu thia weighty 



debate upon that matter, the house being 
turned into a Grand Commitiee, and Mr. Ucv- 
beri in the chair. Some said that tbe Sulgect 
has suQered more in the violation of ancient 
Liberties within these &w jeal^ (ban in 300 
yenis before, and therefi>re care ought to be 
taken for the time to come. 

Sir Xdaard Coke said, lliat that ' Royal 
Word, had retcreuco to some Message (9r- 
merly sent ; his majesty's word was, that tbey 
may secure themselves any way, by bill or 
otherwiEe, he promised to give way to it. An^ 
to (he end that this might not touch his oi^es- 
ty's honour, it w'as proposed, (bat the Bill come 
not from, the house, hut from the king: We 
will awd grant fiir in and qui soccesson, and 
that v-e and our successois will do thus and 
thus ; and it is the king's honour, ha cannot 
speak hut by record. 

Others desiied the houM to consider, when 
and where ttie late promise nas made ; ' was it 
not in tlie face of both houses p Cruel Lia^ 
have been careful la perform their promise^ 
yen, though they have been unlawful, at 
Herod. 'I^ierefore if we reat upiin his msjet- 
ty's promise, we may assure ourselves of tbe 
performance of it; besides, we bind his m*- 
jesty, by relying on his word : we have laoa 
enough, it is the eiecuiioo of them Iha^ is our 
life, and it is the king that gives IjCe and exe> 

Sir Thomat Wentaorth concluded the debate, 
snyini;. That never house of parliament trusted 
mnre in the goodness of their kio^ for their 
own private aocouut, than tbe present; bat 
we are ambitious that his msjasiy's goodBcw 
may remain to posterity, and we an accounta- 
ble to a pubUc trust i oad therefore seeing 
there hath been a public violation of tbe law* 
by his ministers, nothing will aetitfy bim but & 
public amends ; and aur detirit ia vindicate 
the Subjects Right liy Bill, are no more tbaa 
ore laid down in former laws, with some modest. 
provision for instructiau, pertbnoauce aud exe- 

Which so well agreed with the sense of th« 
house, that they made it the lul^iect of a Mes- 
sage to ba delivered by tbe Speaker to bis ma- 
jesty. 

Amidst those deliberatioas, aootber Me»- 
sage was dalivered May 9, Irom his uugcs^, hy 
Mr. Secretary CnoL ; " That hnwsoev^ w« 
proceed in this business we have in hand, 
which his majesty will not doubt, but to be lu- 
cording to our constant profin^ion, and so as bs 
may have causa to give us tliai>ks ; yet his re- 
solution is, that ^tb his royal core, and 
hearty and lender affectioD towards all his lov- 
ing Euhjccrs, shall appear to the whole king- 
dom, and alt ihe world, that he will govero ua 
according lo the laws aad castoms of thia 
'm ; that he will maintain us in the ijb«r- 
of out Persons, and Proprieties of gur 
Goods, so as we may enjoy as much happineu 
lie fotr&tlKn m tMU hast tima^i jmM 



mj 



STATU TRIALS, 3 Cmakleb I. l«U3.~t&e Libet^ ^tlt Sdyeel, 



n» 






&*l ha will naitj nbat Imlh Ixrn, or maT be 
fand ainiu lunoagK ui, u tli»t bermficr thet« 
Mf bano jtuteaow h> contpUin. Wbercin 
n ba M^eur oil! rank himieir ainoni^st ih« 
bnt of aur kinp, and ikew lie bath no iiiten. 
Don to invada or impeach our Uwrul liberties, 
orrigbt; •• b* will have ua motch aurvcliel 
with ihe bmt nibjecta, not hj ancmacliinfc 

rEbat savcre^tj idcI prortigative, whicli 
. haih put ioto his bandi for o»r tpai\, but 
fcj canuiiitng oiir<elTe« within the bound* »nri 
(twi of o4ir ropa-faihen, oithont reatraining 
Aem, or enlarginf the<n bj new eipknation^ 
interpretation!, expotitioni, ur addiiiont in uaj 
■art ; whiefa, br tctlMh at, he will not give wn^ 
«ato.— Hwt the vngbc of the affiin of the 
kttgdvn, and Cfanitcndom, do pvete him 
and raore, 4nd that the tioio i> now sroa 
ihu point of matartty, that 
Ing debate or ie\wy ; so as this cesaion of par- 
fiuaeat niuM oontinue no longer thnn Tuesdny 
CMM seveH-n>ebt at farthest: in which time 
tisMJeUy, (or his part, will be rendy to per- 
Arai what he promised ; nod if tli« house be 
w« ra«d]F to ilo that i* fit far thaaulve', it 
iWI be tlicir Q*n ranlts. — And upon aitur- 
' ~ ir eood dispsAoh and oorroipondence, 
w oKlaretli, that bii tojbI intention 
ue •nother teasion of parliament at 
HichaelnMs neat, ki the perfecting of luch 
Ifcogi ae oaiinot now be done." 

This MeasaM was debated the am daj, b»- 
BfSatuidaj, Msj 3, wheraopoii 

Sir JoIm Eiliol spake to itis effect : The 
kia^ taith be, will rank hisDelf wlih the besl 
ef bn^, aad therefore he would have u9 rtnk 
mimImj with the beat subjects ; we will. not 
iaaoailfa upon that MTereignty that God hatb 
fW into hi* hands ; this makee me fear his mu- 
}«tj is rais-in formed in what we go abooi ; 
let OS make some enlargement, and put it be- 
fcic him, thftt we will not make an^ thing new. 
ta for Hie time of this sessioB, it is but short ; 
Hd \«tA how many messages we have, so mnny 
fatemiptiohs, and rota repnrlB, and mis-repre- 
Metalfone to hie Dafjesty produce tbos« mea- 






X. 



r MiUt FfttttBOod ontinued the debate, 
, and said. That this bnainesi is of great impor- 
tincr, we are to accommodate ibis : tbe breach 
«f tliit paHiatnent wiU be tbe greatest raiierj 
that ever beftdt us: the eyes of Chrbtendofn 
■reopon this pnttiitnient, the stftte of all our 
Pre(MtM>t fhenda are ready to be swallowed 
op \fj the emperor's forces, and oar own king- 
dom is in a miserable wratt, for (he defence of 
aartebfion that is invaded by the Romaa Ca- 
Aalics, by tbe cek>uT of a comoiisajon, wh)«h 
b intolembte ; the defence of our re*lin by 
«hippin;l;s W decayed, the kin^s revenue is aok) 
•ndgene; where shall the relief be obtained 
tntin'pafliwvent? Now we are in the way, let 
W proceed by way of bill, in panuanoe of tbe 
linifa iiie»«4;e, to establisb tbe Amdamcntal 
••■s in propriety r(oar|;ood«, and liberty of 
nor persona ; It wna deckred to aa, * that 
* M a wsi by Laaa 



' lawiHil ;' let ui touch ibem in our Bill, and 
that all precedents and judaments weioing to 
the contrary, be vuid ; and ihat all commit- 
ments ngaiiist tlie law be remedied, and that 
we be piatecied ngaiiul ihe lear of commit- 

Mr. Mtanii'i Sptic\. 

I nm of ojiinion wiili the gentleman (bat 
spake lint, ibat, in nur proi:eedin|[S in tbe mat- 
ter now IB dchnie, ue should have u»e of the 
title of the ataiuie, calleil cirnunipgcle agatii; 
for it concerns tbe Liberty uf onr persons, witlih- 
out ivliici) we do n»t enjoy our Jivea. 

The Question is : \Vhether in this Bill for 
the explanation of Majjna Cbana. and tlieves 
iil'lliestalutrs, we ^aH provide that the oanie 
of the commitment mu^t be expressed upon the 
coinmitriient, or upon return of the Habeas 
Corpni t 

Before I ^eak to (he quMiion itaelf, 1 shall 
propose some obscrvatinns, in mj conceit, ne- 
ceasarily conducing to tlie debate uf tlie mutter. 

]. That we ought to ukerare, and to pro- 
vide for posterity, ns our predecessors hare 
done for us, nnil that this provident care can- 
not be eipoun4e(l tu he luiy distrust of tbe 
performance of his innjesly's gracious derlnra- 
lian, this act providing liir perpetuity, to which 
his highness's promise, unlets ii'were hj act of 
parliament, cnnnot extend. 

e. That wa having long debnted and so- 
lemnly resolved our rights and privilwea by 
virtue of these statutes, and if no* »e thall re- 
duce those declarations and those rtsoliitiont 
into an net, we mutt ever hereafter expect to 
he confined within the bound* of that act, be- 
ing raadc at onr suit, and to be tbe limits of tli* 
prerogative in that respect, and it being an act 
of explanation, nbich shall receive do further 
explanation tban iis^f contains. 

3. Hutt by this act we must provide a re- 
medy Bgaiost the pcrxoas whicn detain us in 
prison, ^r as to tbe commander, there can be 
no certainty. 

Concerning ilie Question itse].f : 

It hath .been aiilemiily and clearly resolved 
by tbe house, that tbe commitment of a IJ'ree- 
man, ivithout expressing the cnuse at tbe time 
of tbe commitment, is against the law: If by 
this act of explanation we sbull provide only 
that the cnuse ought to be expresstd upon the 
return of llie H. Corpus, then out of the words 
of the stiuate, it will seeessaiily lie iuferrei<, 
that before the. return of Ihe H. Corpus the 
cause need not to be expressed, because tba 
statute batb appointed tbe time of the cx|>rps- 
sion of the cause ; and it will be construed, 
that iftbemakenofthestntuiesbad intended 
(hat the cnose should have been sooner shewn, 
thty would have provided for it by the act, and 
then tbe act, wliicb we Una an act of explana- 
tion, will be an act of the abridging of ftlagin 
Chartn, end the rest of ihe statutes : or if ibis 
act do not make the commilirieDt without ex- 
pressing ihe cause to be lawful, yet it wiU 
clearly amooat to a toleration of the commit- 
dent, trithout exprewng the c«iit^ uacil the 



1S3] STATE TRIALS, SChiulbiI. ms^Procadins* in PadUment rOatiiv to [IM 

H. Corjius, nr to a gcoeralor perpetual dit' 

EeouitiuD, begiuaing wiih and cuntinuing as 
>iie M ihclaw ilsulf. And id my undemanding 
the wonls in this inieiided !iiw, ilmt no tVeeinaii 
con lie commitied nitliout cause, can no ways 
adjantnge us, or satbfy this objection ; for iill 
the retutn of the H. Carpus, he thiit conimlis 
isJudgel1^tJleca^si^, orat least htilh a licence 
by tfiis law lUl tbat time to conceer ihe come, 
and the RBRler U nut subject lo any aaion for 
the detaining of the (jritoner upon such com- 
mand. For if the prisoner demanded the cause 
ofhisimprisoDiiii-nt of the gaoler, it nill lie a 
safe answer lor liim tn say tbat lie ditaii.s a 
prisoner bj warrant, and that it belong* not 
unto bim lu desire those whicli comiiiit tlie pri- 
soner iosbe» ibc cause until he rclurns tbe H. 
Corpus. And if tlie ptiinn«' be a suitor to 
know the cause frini those thiit comniilled him, 
It nill be a suUicieut answer for tliem to s.iy, 
■ hcywill eipn:sE> the cause at the return of the 
TI. Corpus. In this case there will be a wrong, 
bec;iuEa the comtnitment it without cause c%- 
prsssed, and one that suffers ihat wroug, vii. 
the party imprisoned ; and yet no surh wring- 
doer but limy excuse, if uotjuitify himsdf by 

In mailing of laws, »c must consider the 
incunfcnieuces »hich tony ensue, and provirle 
for iht: prevention of them',' ' lex caveat de 
' futurii.' I have taken into my thoughts some 
incitfiTrnieuces which I shall cjpa«e lo your 
considerations, not imagining that they can 
happen in the time of our gracious sovereign ; 
but in an act of parliament, we must provide 
for tbe prerentiun gf all inconveniences in 

1. If aman be iudangerto beimpri^oned in 

the bcginniug of a lung viication for refusing lo 

pay some siukII sum of money, and knows That 

by this act he can liave'iio inla^ement till tbe 

rettjra of the II. Corpus in tlie term, Hu.^ that 

(be charge of his being in prison, and of bis in- 

Inrgeuient by H. Corpus, will nmount to more 

than ibe sum, he will patt wilh moue; to pre- 
,venl hiu impri^onrntnt, or to redeem himself 

thence, because lie cannot say any man doth 

hira wrong, uuiil tlie return of the 11. Corpus, 
■ and the Inw resoliea. A man will pay a fine 

rather than be imprisoned', Ibr the judgment 

which is givcu when one is lined, is idiocapia- 

tor, and ihe execution for debt is a cupiai ad 

tatufacitndKm ; the bw presunling any man 

will pan with his money to gniii his liberty. 

And if the prisoner pr«cui« an H. Corpus, and 

lie brought into the King'i-bench by virtue of 

tl, yet the catisc need not to he then expressed ; 

the provision of this law heine, tlial if no cause 

be then expressed, be sliall be bailed, and no 
rcauaebeiiigbhenn upon (be return of the H. Cor- 
pus, yei it uny be pretended, that nt the time 

of his commitiiiint ther.i weresirong presump- 
tions of ^me great ottence, but upon exami' 

nation tliey are cleared: or it may be said, 

tbat tlie ri'lTence was of ibat naiiire, that tbe 

time of liis imptisnoment bel'ute the return was 

a suiiiciciit puiii'bnieiiL And we may be fre- 



quently imprisoned in tliia nisnn«r, and never 
underitaiui tbe cause, and have often tuck 
poniibmeiit, and have no means to joitify our- 
selves; and' for all tliete proceedings this law 
will be tliejustilicatiat), or colour. 

S. If by this act there be a toieratioa of im- 
prisonment wiibuut shewing caase, until the 
return al the U. Corpus; yet it it potstble to 

npany that inipris'ininent with sucb cir^ 

tances of close restraint, and other hanl- 
shipi, which I forbear to express, M m«y oiakc 
an imprisunment for that short lime, as great a 
punitlunent, as a perpetual imprisonment iu au 
ordinary manner. 

3. The party may be impriioaed a long, time 
before he shall coine to be delirered by thii 
law ; the place of his imprisonment may be in 
the furthest part of this kingdom; the judges 
always make the return of the U. Corpus a»- 
sw«~jble to the distance of the prisou from 
Wesiminsier ; the gaoler may neglect tbe re- 
luni of the first procest, «iid then the ptrty 
must procure an Alias, and the gaoler may be 
then in some other employment for the liin^ 
and excuse tbe nut returning tlie body upo> 
ihnt process ; and this may malte the imprison- 
ment for a year. And in tlie end no cause 
being returned, the party may be discharged; 
' -" in the mean lima bo shall have impnsoD- 

., he sliail never know ibe cause, be >hatl 
no reniedy for it, nor be able to questioa 
any for injustice, which have not ajiutibcaiioD, 

:cuse by tbis taw. 

Tbe party may be imprisoned during hit 
hfe, and yet there shall be no cause ever shewn, 
I wiil instance in this luaiAier: a man may bt 
committed to the furthest part of the kiDgdgn 
Westward; be obtains an 11. Corpus; before 
the )iaoler receives the U. Corpus, or before 
be returns it, the prisoner by warrant is re- 
moved from that prison to another, it may be 
tbe furthest Northern pan of tbe realm. The 
lirst gaoler returns tbe special matter, which 
will he EuUcieni to free himself, and in hke 



be a peregrin iition, or wayfaring from one gBaJ 
lo another, and be shall never know the cause, 
nor be able to complain of any, who cannot 
defend their actions by this bill. 

,5. If the prisoner be brought into the conrt 
by II. Corpus, and no cause eipreste«l, sad 
tjiereapon ne be inlarged, he may be parity 
committed again, and then his enlargeoietit 
shall only make way for hit commitnuui : . and 
this may continue auiing his life, and be shall 
ueverlmow the cauie ; and this not remedied, 
but rather permittedby this act. 

And there are also tome things rematkably 
considemble inthis matter; the eiptcceof tlie 
parly in prison 1 his fees to ibe gaoler, his costs 
in obtaiiiingand prosecuting an Habees Corpus, 
and Ills charaes in removing himself, attended . 
with such as have the charge of his conduct : 
and that the prisoner must sustain all tbis 
without satisfaction, or knowing the cause. 

The only leatoo pren by those of the vt^e* 



181] ffTATE TRIALS, 3 Cbabl£s I. I (i'2S.—the Libels <f ihe SutiftA. 



(1S« 



spioiDa is, Thnt it is rcqDiake, the king and 
ouncil should have ptnrer to cimiiiiBDd the 
itaunaol a maa in piisoa for some time, 
■itkiuteipinsing the cause ; because it is sup- 
naot, ibai the manirestatioa of the cause at 
tat maj prevent the discovery of a treason. 
Hm reMon is answered bj the remedy pro- 
ptod; bj this act it beiuE proposed, that it 
■lalt he praiided b; this Sill, that upon our 

Bibe Chancery for an U. Corpus, relQisable 
k AmX coatt, which is alaaji open ; and that 
ipoB the receipt thereof, the writ must be re- 
' tBoed, and Uie cwiae thenupoD eiprelsed. 
If then tbb remedj be reallj the cause of com- 
MmeDt, itmuKpartljappeau-; which com ra- 
dios liie fbnner reason of state. 

And in mj own opinion, we ought not qdI^ 
n tike care, that the subject should be deh- 
TOfdoGtof prison, bat to prevent his impriaon- 
ncM; the atalute uf Mi^tia Charta, and the 
[T« of ibe ac<B, providing that no man ihculd 
kntpriuned, butb; thelaw ofthe iand. And 
•Unu|htbe king, or council, as it hath been 
•tjtcted, hy fbroc may commit us without 
ODx, notwithstanding, any Tans we caumake; 
jetlaai sure without such an act of psrlia- 
WBt, such conunitmaat can have no legal 
«)lntr, and I would be loch we should nuke a 
1m to endanger ourselves. For which reasons 
Iranceive, thai there being so many ways to 
trade this act, we shall be io a worse ciue hy 
i^thu without it ; as it provides no remedy to 
pRtent our imprisonment without expreasing 
At cause to be lawful^ and administers ext^set 
flit continuing us in prison, as I have before 
Mared. And thus for proridine for one par- 
tic»lar out of reawn of state, which possibly 
on 6lQ out in an see or two, we shall sprlug a 
Wik, which may sink all oar liberties, uid 

ra gap, through which Magna Charts, and 
eu of the Statulcj, may issue out and 
•Mi«b. I therefore conclude, that in my poor 
■Bd«itandinf> (which I snbmit to better judg- 
■Hits), I had rather depend upon our former 
RMlaiioDs, anil the. king's grncioos declarn- 
hoDi, than to pass an act in snch manner as 
kiihbeen proposed. 

In roncloMon, the Commons agreed t 
Answer to all the preceding Messages, 
prCKDied it to the king by tt^ mouth of their 

The Speaker's (sir John Finch) Spekcbio the 

Kin^ in antwer CO several MesHgea, ii ' 

Banqueiin^Housr, May 5. 

Most Gntcions and Dread Sovereign ; Your 

1b]«I and obedient subjects, Che commons no 

NKBibled in pariiament, by several Messagi 

inn your majesty, and especially by that your 

declaration ddivered by the Lord-Keeper be- 

jbre both boaies, have, to their exceediog great 

' jo; and comtort, received many ample expres- 

■ons of your princely care and tender affec- 

ciofia towards them, with a gracious promise 

*Bd tMorance, that yoar n^jetcy will Bovem 



according to the lawi of this realm, and so 
maintain ail yoar subjects, in cite juH freedom 
of their persons, and safety of their aitatesiihat 
all their rights and liberties may be by them 
enjoyed, with as much freedom and security ia 
their lime, as in any age heretofore by their 
ancestors, under the best of vour pn^nitors ! 
for this so great a favour, enlarged by a com- 
fortable intimation of your majesty's confidenc* 
in the proceedings ot this hous^, they do, by 
me, their Speaker, make B full reiurn of most 
hnmble thanks to your majeaiy, »ith all dutifid 
Bcknowledgmeuc of your grace and goodocit 
herein extended unCo them. — Al^d. whereas in 
one of those meuages delivered from your ma- 
jesty, ihere was an expression of vour drair« 
know, whether this hnuse would rest upoD 



really performed ; a* they again present theii 
humble tlianks for the iieconding and itrengtlH 
ening of your former royal expressions, so in 
all humbleness they assure your majeity, that 
their greatest confidence is, and ever must be, 
in your grace and ^odnefs, without which, 
cbey well know, nothing they can frame or de> 
sire, will be of Mfecy or value to them ; there- 
fore are all humble suitor* to your majesty, ihat 
your royal heart will giacioualy accept and be- 
lieie the troth of theirs, which ihey humbly 
present, as full of truth and cuufidence in your 
royal word and promise, as ever house of com- 
mons reposed in any of their best kings.— Trhe 
it is, they cannot but remember the pnblic 
trust, for which ihey are accountable to present 
and future limes ; and their desires aie, Thu 
your majesty's goodness mi^hc, in fruit and 
memory, be the blessing ind joy of posterity. — 
Theysay also. That of late, there bath been ' 
public violation of tlie Laws, and ihe Subjects 
Liberlies, by some of your majesty's ministers; 
and thence conceive, that no less than a public 
remedy will raise the d^ected hearts uf your 
loving subjects to a cheerful supply of your 
majesty, or make then) receive content in the 
proceedings of this hnutc. — From these cousi- 
derations, they most humbly beg your majea- 
ty'i leave to lay bold uf ihac gracious offer of 
yours, which gave ihem assurance, ihatifibey 
thought lit to secure themselves in their Righis 
and liberties, by way of Bill or otherwise, f 



it might be provided with due re»pecc to Gud' 
honour, ana the pablic good, - ' i ■ 

gracioosly plensetf to give way 
from their "■■ 



ltd be 
Far 



is, any way to encroacb 
'jpon your sovereignty or prerngniitei nor 
hnre tbey the least llioughi of strtti-hing or en- 
lairing the laws in any sort, or ly any new iu- 
leiprctations or ndditioiu ; the bounds uf their 
desires eilenfl no further, tliau to some neces- 
sary eiplanalioo of that, which is truly com- 
prehended witliin the just sease and nieMuing 
of those laws, with some inudcrate provision 
for execution and performance, as in times past^ 
upon like occaMon, hath hetn used. The way 
how to accomplish these their bumble desires^ 
is now in Htioui couidetatioa nitb thenis 



K1] STAl^TRIAl^. SChablmI. \62a.—Pniatdiiig» it, Parliaiimt nlatins m [IM 



wtierem (key humbly ■nure jmir MJEKy, they 
will BcitlMr loce IJtue, nor teak any thing of 
jDur DM^Mty, kit th*t tlicy hepe may he &t 
for dutiful and loynj lul^ects tu aak, and for a 
p'aciuni and Just king to grnnt. 
Hit Majeitya Airsw-cit wm dclitered by tb« 
Lofd-KeapcT, Thuaai Lord Caventiy : 
Mr. Spenter, and you Gentlcraef) of tbe 
Hntse of Commont, his majesty ha» cota- 
■naiided me to tell you, that lie eif«ct«d an 
■luwer by yaar actiont, and not daby by dn- , 
cbune : ye acknowled^ his trmt and confi- 
dence in yow proceediagi, but hi* maieKy aeea 
not how you rei)iitte him byyoarconadence of 
tni word aad aoliont ; far what need expli 
tioni, if ye doubted itot ibe ^rtbimanceof the 
trae meaning? Inr ezplniiatiam will hazard an 
iacroadiaieiit upon his prerogntice. And it 
nay w«tl be iriiJ, What need d new law tD> 
etwGriD Ml old, if yoD rvposeoonfidence in the 
decliiration his majesty made by me u both 
bousea? And younelves acknowledge, that 
yoar greatest trust and confidence must br in 
bi* majetly's grace and goodnen, without which 
BothinK that you can ^sme will be of safety, 
i>r araitaMe to yon. Yel, to shew cienrfj tt>e 
Mteeritf of hit majeftr's intentions, he is oon- 
lent that a Bill be dnwa for a confiiraation 
of Magna Charts and tht sii other statutes in- 
listed upon for the Subjects Liberties, if ye 
thall chit»e that to be ibe best way ; bat i 
it may be without additions, nnmphnisc 
dplanations. — TTius, if yon please, jou may 
b« secured from your needless fenrs, and this 
parliament may have a happy wished-for end ; 
whereas by the contrary, if yon seek to tie 
. yoar king by new, and indeed impossible bonds, 
jroo must be aocntintable to God and your 
country for ihe ill success of this meeting : his 
majesty having giveti his royal word, thiit you 
l^all have no cause to conplaiD hereafter; less 
Hian which hath been enough to reconcile great 
princes, and therefore onght much more to pre- 
rail between a king and his subjects. — Ijisily, 
I am commanded to tell ynu, that his inajesty's 
pleasure i>, That without fortber replies or 
tneasages, or otlier unnecessary (telayl, you do 
wbat yoa mean to ^o speedily, remembering 
diE last Messnge, which his msjesty sent you 
fcy secretary Cook, in point oftimA: his tnn- 
j&Cy nlways intending to perform his pro- 
mise to his people, 

NotwiclistaDding tbe intimation of his ma- 
jesty's good pleasure for a Bill, Mr. Secretary 
Cook.luesilay.May 6,Bgain pressed ih; hone 
to rely upon the king's word, sayiiig, I'hat be 
had rather foHow others, than begin to enter 
into this business : loss of time bath been the 
greatest complnint; the matter fallen now into 
consideration, is, wlist way to take, whether 
to rel^f on his msjesty's word, or on a filH ? If 
we will comider the advantage we bdve in 
taking his majesty's word, it will he of tbe 
Inraest extent, and we shall cfatise that that 
kath most assurance ; «n act of parliament is 
by the consent of the king sod pariiatnent; hot 
tbii aisBnikcc by word is^lbat be will guten 



us by the Inivs; the king promises thftf, aqd 
also thai they shall be so executed, that we 
^hII enjoy as mneb freedom as ewer. This 
contains many laws, and a grant of all good 
lans; nay, it coatsins a cvnlirmatiDii of moa« 
Tery hiws, asiviniDce, which binds farther tbea 
tiie law can : ftrst, it liiods his alfection, which 
>■ the greatest bond between king and subject, 
and tw binds his judgment also, n*y^ his ho- 
nonr, and that nrit at hoTB*, bet abroad ; tbe 
royal word of a king is tbe ffoitn4 of all treaty ( 
nay, it binds his conscience. This confirtnatioN 
between both houses is in nature of a tow ; for 
my part, I think it is tbe greatest advantage te 
rely on bis majesty's word.~'He fartbcr aMed, 
this dcUite was fitter ta be dene befers the 
house, and not before the » 
it was a new course to gi 
whole house. 

Sir JeAn EUiol replied, That tbe prooeedtng 
.in a committee is more booourable and advan- 
tageoos to tbe kiag and tbe bonee, fat (bat 
way leads most to truth, and it is a more «pen 
way, and where every man may add his reasoK, 
and make ansacr upon the hearing of otber 
men's rsasons aiid arguments. 

Thiii being the genernl Dense, tbe bouse <vn> 
turned into a Committee, to take into connde- 
ration what was delivered to tbe King by the 
Speaker, and what was delivered to thsm bj 
the Lord-Keeper, and all oiber Hassages, nod 
the Committee was not to be bOnoded by any 
order : tbe key was brought up, and none were 
to go Out wilhout leave fit^t asked. 

In the debate of tbis business at the conk- 
mittee, some were for letting the bill rest : but 
sir Edward Coke's reasons prevailed to tbe con' 
trary. Was it ever known, said he, that gene- 
ral words were n sufficient salisfiictiun to par^ 
ticnlar grievancea? Was ever a verbal de- 
clarallon of tbe king tcrtum r^ni f Wben 
Grievances be, tbe parlinment is to redm* 
them. Did ever parliament rely on Kiev 
sages ) They put up Petiuona of their Griev- 
ances, and the kioj ever answered tbem : tbe 
king's answer is very gracious, but vtliat is ibc 
law of the realm, that is the question ? J pot 
no diffidence in bis majesty, the king, mast 
speak by a Becord, and in particuUn, and not 
in general : did you ever know the king's met. 
sage come into a Bill of Subsidies? Ait suc- 
ceeding kings will say. Ye must trust ne a* 
you did my predecessors, and trust my Me»- 
Mgcs; but messages of love nerer nme intDjt 
parbamant. La ds p«t up • Peiman of 
Kight: not that I distrast tbe kina, but that 
I cannot take bis trust, but ia a paruunea 

On Thnrsd^, 8th May, the Petition nfRiglst 
was finished^ and the clause of Martial Last 
Was added onto it, and it was delivered to A« 
lords at R CoirferencE in the Paitited Chamber 
fortheir concurrettce; which Conference warn 
managed by sir Edward Coke, wha thus tm- 
pressed himsetf : I pray yovr lordships to »• 
cnae tu, for «« b»*« been till one o'clock >b««t 






I»] 



STATE TBIALS, 3 Chablu L )628_iA« Uiertf efiht Sufytrt. 
concur witb 



[190 



the gnat buiioets, and, bleised be God, "« 
LaTc di^accbed it in tome measure, aad ba- 
fore thii licoe we weie ant able lo attend jour 



lauded Irom the House of CauTinoi 
Hcas tbeir singular care and aflcction they 
haie of concurreDce with j^our loidthips, io 
tkw iu^Q{ affairs and pnjceediogs of ttiK par- 
liament; bolh fur the j;oo<l of tbe common- 
«ulth, and principallj for bii oiHictly's. And 
thb I maj HJ in ibis particular, if we bad hun- 
diada of tonj^ues, ne were not able to expren 
lias desiie »lufh we hsie of ibat concurrence 
vidi jour lordiblpi : but I will leave it without 
anj further expreaion. My lords, it ii evident 
•kac Beceseitj there ii, both in respect of your- 
•drci, «Bd jrour posteritin, to havr good buc- 
ceis in thi? business. We have ac^ainted 
jour lonfahipt with the Reasons and Arguments, 
and after we have bad some Conference, ne 
have mcitnl from jour lorrfsliip five Propo- 
mioas; and k behores me to give joar loid- 
sbips some reosoas why jon luve not beard 
ftaio *s before nuw j for iu the mean time, as 
•* were causutiing of this weighty basintss, 
•e k«ve reenved diicrs Messages from our 
^r«at sovereign the king, and tbej consiRtd of 

I. That his majttty would maintain all bis 
Sabjeclt in tbeir juu lieBdom, bMh of their 

3. That he will govern accordii^ to his Laws 
and Statuic*. 

3. Tliat we thouid fiaJ mucfa canfidenoa in 
Lil Kojal Ward ; I pray observe iJmt. 

4. That we sbaU csjay all our lUgliu and 
Libeitin, with as much freedom and libertf 
»» ever any subjects have ione i/\ foraier times. 

5. That wlietlter we shall thUik it fit, either 
by way of Bill or-otbenvis^ to ga on in tlii) 
(real husit>eBs,bi( inajegty would be pleMed to 
^ive way to ii. 

These gracious Messues did so werk upon 
out aflectkuis, that we ha*e taken thetD into 
ctnuitleraUoa. A}y lords, when we had these 
li ea wgea, (I deal plaiulji^ for so I aui com- 
Kiaaded by the House «f Commons) we did 
con sid er , what way we might go for wtr nwre 
«ecnre way, nat/, yonia ; wa did think it tho sa- 
ieat w^ to go in a (^lianientary ooats^ ibr 
we Lave k maiim in tbe boase orcofiinHU), 
and writiau on tlie na& of our houses That 
aUmj*aretb«*!il(BtaiHlsKTcitw^i: and «t 
last WB fell upon tlwt whioh w« did think, if 
that your lordships did ritniiat with us, it is 
tbe nmat aocieot «ay of nil, and tl>at is, my 
Junfa^ viajmtuia, both 10 Us mueii^, to yuir 
lon^iipa, said to oofielies. Fur, nv Uidi, 
■his '» the greatest boad, that aa^ subject can 
lave ai patliameBt, verUim rtgit, this is aa 
UghiKtiatof Ikmkwc, but tiiis shall be done by 
the loidc and comimans, and aaseoted to by tbe 
luagiii parliament; >this is the greatest obligft' 
tioa-of aU; and thiajefei the king's fat»iaur and 
ewMleiy. Xherefere,inylerdi,weJiave'di»<>n 
abmof afevitioD, dc»iringyourJwdabi^.tD 



ein; for we come with an 
of all tlie house of con* 
mons, and there is great reason your lordship* 
should do so, for your lurdibips are involved ib 
tbe same cunditiun, camnrnttt ptrUvlMim. So I 
, have done with the first patt : and Mw I shall 
be bold tn read that which we have so. agreed 
oil, and I sball desire your iurdsbips leave that 
I mny read ic 

Here the Petition of Ri^ k»s reed ; ' bat 
we forbear to inseK it, as yet, because there 
wne propositioiis Ibr citemtion ; and it is not 
perfect, till the royal assent be ^ven to it. 

From tbe 8lh to tbe 13th of May, all puUie 
business was laid aside. On Moauy the Igth, 
the I^ida had aConfarence with the Commons, 
where tbe Lord Keeper nude tiits Speech: 

Gentlemen of tlie Hou^e of Commons ; JSf 
Xxirds, haviug a most affectionate desire to 
maintain that good concurrence,, that in thia 
parliamsntand others have baen of late between 
both houses, desired t)iis CoDfcrertce, to ao 
qiiaiiityou, how, and in whatntanner, they have 
^Aiceeded in the Petition of Richt that coma 
trom this beuse, aod to let you know, ibat a) 
soon as they had received it, ihey, with all care 
and esiieditWD they possibly could, addressed 
themselves to consid^ thereof; and after goed 
time spent in deinte in tbe whole house, they 
made a committee to consider, wbeAer relaiit* 
ing tbe substance of the Petition, thine might 
not be sotne words altered, erpot iu lemahe it 
more sweet, to procure it a pi^sahle wu 10 hi* 
majrscy : we know this must be crowned bytha 
kiog, and good mast come lo all the kiogdani 
by thiscaarsenow taken. The connittee bath 
net, aad hath propauiuled some small maUats 
to be altered m some few words, to rnakc it 
passable, aad not iu substance. And tlie lorda 
having ebis reported ftom their cnmmittee, aad 
beard it read la their house, resolHsdofaothiag 
till they hare your consent ) yet they think it 
fitter to have it propounded 10 yov, to coaskhr, 
whether there should be any ■laemtion or no, 
and how tJie propounded ^teretiuns BMiy ttand 
witli yourhluog, — Conoerniog the twrnnilBMnt 
by the king and tlie council, wilboat npresaiog 
lite cause, i^waaresd*cdby theJoEds todsbate 
it this monuDg, aad as^seon as they shmildhave 
debated it, they pui«ilMd to have your concur' 
reoce with ihesu btfott they feeeUed it ; bn.ai 
the instwC whan they thought tw bare debatied 
it, they rootived a XeUer fram bis nujesty, 
■liicb, they conoeivr, will givea satlslactjnn to 
btitb bouses in the maim poiuL My lords de- 
xiring (o keep that gaod ooBctBTeaM hngwa.dfr- 
sired to cOmntwaicate that LMtee anto yea, that 
jqu Blight take tlie sane iota y«M coBsidera- 
iieiu,a> theymmtotk>ii«msel«M: ThsLet* 
tcr is to be read aiMo J*" ' 
To our right trusty and welt- beloved, \1te I.ord* 
Spiritual and Temporal of tbe higher houw 
ol parlinment. 

< C. R. W-e -being deMoaas of DOtbiagwoM 
1 1^„ ^, adTABOHMMt e^ thejMMfl aaifim- 



191] STATE TRIALS, S Ca-isLBs I. 1626.— ProUedingt iii Parli^aent relating lo [19S 
• ptritj of our people, hare given leave to frea 



< debate upoti tlie highest poinis of our preroga- 

* tive rojal, which iri the cirae of oar predeces- 
' sors, kjDgs aod queeiia of this realm, were ever 

* mirain^ u matten that ihey would not liave 
' dbcossed; and in oLher ihrngs it bare been 

* willing BO far to descend to the deairea of our 
f l^ood subjects, as might fully satiify nil mode- 
' rate minds, and free from idl just fear* and 
■JMdoiuies, which those messages, which we 

* have hitherto scot into the Common* house, 

* will well demoDstrate unto ibe worid. Yet 
' WB find it Mill insisted upon, that in no case 
' whatsoever, should it never so nearly conceni 

* mattera of state or goTemrnent, we, or our 
' privy oonncit, bare no power to commit any 
' man without the cause shewed; whereas it 
' ofif n happens, that should the cause be shewed, 

* the wrvice itself would thereby be destroyed 
' •nd defeated; and the cause alledged must be 
' auch, as mny be detennmed by our judges of 

* oar courts of Westminster, in a legal and or- 
' dinary way of justice j whereas the causes may 

* he )uch, whereof the judges have no capacity 
' of judicatDTc, nor rules of law to direct and 
' guide their judgment in cases of that iran- 

* aceadent nature; which hsppeningso oflen, 

* tbc very intermitting the constant m!e cf go- 

* vernuent, for to many ages, within ihis king- 

* dom pisctiieil, would soon dissoUe the very 
' foanilatioD and frame of onr monarchy. 
' Wherefore, as to out commons we have made 
' fair propoMtiona, which might equally preserve 
' the just liberty of the subject ; so, ray lords, 

* we have thought good to let you know that 
' without the overtbiaw of sovereignty, we can- 
' oot sufler this power to be impeached; not- 
' witbttaiiding, to clear onr conscience and just 
■ inteutiona, this we publish. That it is not tu 
' onr heart, nor will we eier extend our roynl 

* power, lent unto us from God, beyond the just 
' rule of moderation, iu any tiling which ihalt 

* be contrary to-our laws and custom, wherein 
! the safety ofour people shall be our only aim. 

* And we do hereby declare our ra>al pleasure 
' and retolation to be, which, God willing, we 
' ibdl ever coniiantly coniinue and maintain, 
' That Deitber we, nor our piivy council, shall 
' Of will, at any time hereafter, conaniit or tom- 

< mand to prisoa, or otherwise restrain the per- 

* mm of any for Dot lending money to tis, nor 

* for any cause, which in our conscience doth 

* mot concern the public gfiod and safely of us 
' and our people; we will not be drawn to pre- 
' teud any cauae, wherein our judgment nnd 
' conscience is Dot tttisfied with; which base 
' thoughts, we hope, no man can imagine will 

< fall into our royal breast; and that in all ca'es 

* of this nature, whicb ahall hereafter happen, 
' wa shall, upon thr humble petition of the party, 
' or addresi) ofour Judges uiito ui, readily nnd 
' really express the true cause of their cummit- 
' ment or restraint, so soon as with convenicncy 
' and safety (he same is fit to be disclu^ and 

* expresied. And that in all cnuses criminal of 
' oMinaryjnriidiction, our judges shall proceed 
' t* tlw Ai,\*9ntKt or bailment of the prisoner, 



' according to the known and ordinary rales of 
' tlie laws of ihisl.-uid,aDd according tu tbeSia* 

■ lutes of MagnaCliarta, and thoie"tber«ixSta- 

■ tutes inhistcd iipon.n hicli we (to take knuuledf^e 
' stand in full force, and which wl' intend not to 

* abrogate and weaken, ai^ainvi iheirueiuleiUion 
' thereof. ThiBwehaieChoughtfitioBJEnifyunto 

* you, t he rather tnbborieuunyt'ingDtbnteupov 
' thisgreot quest ion, the seosnn of the year be- 
' ing so fur advanced, and our great occasiODl 
' of stale not tetiding us mnny more day* for 
' longer continuance of this fe^Bioii i>f parlia- 
' ment.' Given under our Signet at our Palace 
at Westmiiisler, 13 Maii, the 4th year of our 
reign. 



Th( 



day the King's Letter was c 
Lted to the house of commoni, they laid 



« King's 

aside, and sir Thomas Wentworlh said. It 
was a Letter of Grace ; hut the people will 
only like of that which is done in a parliamen- 
tary wny: besides, the debate of it would ipeiid 
much lime, neiilier was it directed to the Luu^e 
of commens; and tlie Petition uf Right would 
clear all mistakes : For, said he, some ^ve it 
out, as if the liouse went abont to pinch the 
king's prerogaiive. But the further debate of 
this matter tDok up several days. 

May 17. The Lords propoutuied, at a Coa- 
terence, nn Addition in be made to the Peti- 
tion of Kight, which vma delivered by the Lord- , 
Keeper, tO tl.is purpuse : 

" You the kni^hls, citizens, and burgefsei of 
the bouse of cummons, my lords have com- 
mnaded me to present uuto yon the singular 
care and affection they have to preserve that 
correspondency and order, nhkh tha two 
houses (hoili in this and former parliaments, to 
the happiness of this kingdom) fia.it heretofore- 
etijoyed. 

" They command me also to let you know, 
tliat they have no less care andl affection lo 
bring that great husinesj, (Ae LUierly oflAe Stifc- 
jrcl, to nn bnppy issue. And whereas nt tha 
Inst Conference r,f both houses, ibere were ^ome 
things propounded, that cume from their lord- 
ships, out of a desire the Petition (night havti 
the easier passage with his majesty, not intend- 
ing lo alter in any manner the substance of the 
Petition ; but it was then tliouglit fit, tliat there 
waff anolher pnrt of the Petition, of as great 
impottsnce and ueisht: my lorrfs, since the 
time of that Conference, hare employed ihem— 
selves wholly to reduce llie Petition to stirfi a 
frame and order, that n)ay give both to you mud 
tittm hiipe of acceptance. 

" And after mHny deliberationt, and mnch 
adrice taken, my lords have resolved to repre* 
sent to you somethinj; vhich they have tliou|^ 
upon, yet not as a thing conclusive to them or 
you ; and accordiiu; lo their deisires (bavins 
mentioned it in the beginning) have held it 6c 
to conclude of nothing, till that yon be made 
acquainted with it, and tliat th^ msy be k 
mature advisement between you and them, so 
that there may be the happier cotidiuion in all 
their bosinei*. 



193] 



STATE TRIAIS, SChakiesI. 1628 the Uiert^ <^ the Suhject. 



[194 



" Ttui being ihe determiiutlion of cbe lords, 

(Lit nodiiog, thut is now oQered unto jou, 
ilKHild be ciiiidutiTe, yet ibcj thought it con- 
veaie^t [o present it unto ynu. 

" Tiui alieratiun (a.nd not tilLeralioD,butaJ- 
dilioo) wLiclt lliey bhaii propound uiito yuo, to 
be idvised and conferred upon, wliicli is no 
hreich of tbe same, they think it meet, if it 
•hall itand wilh your libing, (o be put in tlie 
cuaduiioQ of tlie PeiiltOJi which I sliall 









' IVe present this oui humble Petition 
' your iiiHJcsty, with the care not cinly of pre- 
' Mcving uur own liberties, but with due i~ 
'gard to leave mtir« that Sovereigo Po»i 
' wherewith your ronjesty is trusted for the 
' piolrclii>n,sate(y,BndhnppiDe(Sof lbep«o|il< 

" This is ibt! thing ihe lorda do pri^cnt un 
joa, tbe subject of this Conference, concerning 
ihe adding a( this in tbe conclusion of the Peil- 
tuoj mit^ ttiey know, ihat this is uo sidhII 
Ibing, and tliut you cuDiiot presently give an 
mtsHcr to iti ibeiefure they desire yon, that 
yog do witli some speed consider of it,!ind Lheii 
tonyups will be reiidy this afternoon." 

This Addition produced sererai Speeches. 

Hr. Atford. Let lis look, snid he, into tbe 
Records, und tee nbat diey are, wbaris" Sove- 
reign Power ?^ Bodin saitfa. That it is. tree 
finui any condition, by this ire' shall ncknow- 
Icdje a regal, as veil as a legal uoiver : Let us 
gire that to tbe king, that tbe law gives him, 
and no more. 

Mr. Pymm. I am not able to speak to this 
<|iMstion, I know not what it is: All our Peti- 
(Km is for tlie Laws of England, and tbiajMwer 
ieems lo be another diglinct power fron tbe 
powtT of tbe law. I know bow to add sove- 
nipi to his person, but not to his power i And 
*e cannot leave to him a sovereign power, 
■ben we uever were'uosaessed of it. 

Ur. l^loBtll., We cannot admit of those 
■ordii with safety, tbey are applicable lo alt 
die paru of our Petition : It is in the nature of 
aSavinf^ and by it we sbalJ imply, as if we had. 
lactoaclud on lus prert^ative ; all tile laws we 
die are wiiliout a savinf : oJid yet now after 
iIm riolatiun of them we must add a saving -. I 
bare seen divfrs Petitions, and where the sub- 
ject clniioed a Right, there I never saw a sav- 
ing of this luture. 

Sir Edamrd dike. This is iiiagnnDt inpamo, 
ibiait propounded to be a conclusion of our' 
'FebtioD : U is a matter of great w«i{ht ; and, 
to speak plainly, it will nverthrow ^1 our Peti- 
tua; it LreDcheg to all pans of it : It ftici at 
I<(iai4, and at tbe Oallij itiid at Imprisoument, 
and Billetine oi Soldiers ; this turns all about 
i^B. Look ioto all ihe Peiitiuus of fonner 
tiior^ they never petitioned, wherein there was 
* tatiag of tbe king's soveieiitnty ; I know ihac 
prerogative is pnrt of the l.iw, but ' auvereifcn 
power is no parliaiiitutury word. In my npi- 
BKU, it weakens Magna Charta, and all our 
ttslates; for tticy are iibsoLute, tviiliout any 
miag oi lovereign po.wer. And shall we now 
kU it, we bhall ireaMs the fouudaiuo of htft 

TOU III. 



and then the buildiag muit needs fall ; let o» 
take heed what we yield unto; Magna Charta 
is such a fellow, that he will have oo sovereign. 
I Hoi^der this sovereign nas not in Magna 
Charta, or in the confirmalions of it ; If we 
grant this, by implicatloi) we Ki^e a suvrreign 
power above all these laws i power, in law, is 
taken for a power with force : Tlie Sheriff bbnil 
take tlie power of tlie county, what, it means 
here, Ood only knows. It is repngnaiit to our 
petition, that is a Petition of Uight, grounded 
on acts of parliament, Uur ptedeotsstirs couid 
nerer endure a leho jure mo, no more than 
the kings of old could endure for tlie churdi, 
sutzo huHorc Dei et JiccUtia. We luusi not 
adniit of ir, and to qualify it, is impossible. 
Let us hold our privileges according lo the Ian; 
ibat power, that is above this, is not (it far the 
king anil people lo haveit disputed further. I 
haiT rather, tor my part, have iha prerogntive 
ncuxl, und I myself 10 lie uuderii, tlum tohave 
it disputed. 

Sir 'I'domat Wentwortli. If we do admit of 



e slinll 1 



B little 



than we found him, i 
thanks for our labour, 
L< t us leave all power to his majesty to punish 
mnlefactora ; but our laws are not Bcquainted 
with sovereign power ; we desire no new thing, 
nor do we irffer (o trebch on his majesty's pre- 
rogative ; we must not recede htim tliis PetK 
tion, either in part or whole. 

Mr. Noye. To add a Saving, is nut Mfe; 
doubtful words may beget ill construction : 
and the words are not only doubtful worde, but 
words unknown to as, and never used iu.anj 
act or petition before. 

"^r. Seldm. Let us not go loo hastily to the 
question. If there be any objections, let any 
propound them, aod let others answer them as ' 
they think good. I will not touch tbe reason! 
already given. Tbe gdm of this addition is, 
that our right is not to be subject lo Loans or 
Iinprisonnient without cause, or Martial Law, - 
but by sovereign power'. If it bath no refe- 
ence to our PeutioD, what doth it here f I am 
ure all oihtrswill say it liath referent, and so 
QDst we. How fiir it doth exceed all examples 
if former times, no man can shew me the like. 
I have made that search that fuUy satisfies me, 
and I tiiid not annther besides S8 Ed. 1. Wo 
have a great many petitions and bills of pulia- 
ment in all ages, iu all which we are sure na 
such thing is added. That clause of ihe S8 
Edw. 1, it was not in tite petitioa, hut in the ' 
king's answer. 

In Magna Charta there.were no such clauses; 
the articles themselves Are to be seen in a 
library at Lambeth, in a book of that time, upon 
which the law was made. There was none 
the Statutes in king John's lime, for tlieee I 
have seen, there is no 8>iviap. In ibc aitirles of - 
o'lfinnatto diartana, is a savinjc, ' les niicii nts 
:d^' tliat is, for ' file maryer, et pur f.iir liu 
chivalier,' and far, ransom. And in tiie uiti- 
clesof kiag John, in the original Chuner, which 
I can sttew, thfre those three qidi viere nauied 



195] STATE TRIALS, 3 Ckablxs I. 1628.— Proeetdmg$ in Porluitntnt relating to [196 



therein, and xhej were bU knnwa. Id tbe 35 
E. S, there U » petition againit Loans, there is 
no saving, and so in otheni. As for that addi- 
tion in the 98 E. 1, do liut observe tde peii- 
tiona after Magna Charta ; as 5 E. S, ihtj put 
up a petition : * whereas in Maj;na Charta it is 
caatained that none be imprisoned but bv due 
process of law ;* those words are not in hfagna 
Charta, and yet thrre is no saving. And so in 
the 38 E. 3, and 36, 37, and 42 of E. 3, nil 
which pass bj petition, and yet there is no sav- 
ing in them. Aad theie are in tbem other 
words chat are not in Magna Charta, and vet 
DO sa.vii]g. For that tliat Mr. Speaker said to 
tl|e kiug, it WIS our heart, and ever shall be i 
but we then spoke of the king's prerogative bj 
itself, and ne are bound to say to : but speak- 
ing of our rights, shall we sej we are not Co b« 
imprisoned, savini but by the king's sovereign 
power? Say my Tnnds, without any title, be 
seised in the king's hand, and I bring a Peti- 
tion ofAight, and I go to the king, and say, I 
do by nu means seek your majes^s right and 
title ; and after that I brine a petitian or mon- 
ttranee de dmit, setting forth my ovm right and 
title, and with all set doon a saving, tbnt I 
leave intire his majesty's right, it would be im- 
proper. It «Bs objected, ibat in the 38 of E, 
1, in the end of Articuli super Cfaartas, which 
VBS a conlimintion of Magna Charta, and 
Charta de Foresca, in the end there is a clause, 
'savant le droit et signioryi' the words are 
extant, in that RoU that is now eicant, but the 
original roll is not eitant. 
' In the i5 E. 1, there was a confirmation of 
tbe Charter : in the 37 E. 1, the parliament 
was called, and much stir th^ was about tlie 
Charter, and renewing the Articles, but Chen 
little was done. In 38 E. 1, the commons by 
Petition or Bill, did obtain the liberties and 
•nicies at the end of the pariiainent; they 
were extracted out of tbe Roll, and proclaimed 
abroad. The addition was added in the Pro- 
clamation : In tbe bill there was no loMHt, but 
afterwards it was put in ; and tn prove this, it 
is true, there is no Parliament-roll of that year, 
yet, we have histories of that time. In the 
library at Oxford, there is ajouroal of a pariia- 
inent of that very year, which mentions so 
much; also in the public library at Cambridge 
there is a manuscript tfaat belonged to an 
«bbey, it was of tbe same year S8 ^. 1, and il 
mentions the parliament and the petitions, and 
' articulos quos petienjnt sic conGrmaverat rex 
* ut in fine adderet, salvo jura corons r^s ;' 
Bud they came by proclamation in London. 
When the people lieiird this clause added in the 
end, they teU into execration for that addition, 
and tbe great earls tfaat went away satisfied 
troFD the pariiament, hearing of this, went to 
the king, and afterwards it was cleared at the 
Deit parliament. Now there is noParliament- 
■ roll of this at that time, only in one roll in the 
ond of Edw. 3, there is a roll, that recites not 
the Parliament bill, but the statute thai 
(he eSect of tbe roll that was proclaimed. 
Tbe lArd* aAerwanb, at a Conferaxe, teo- 



derrd Reastms to fbrti^ their Addition ; which 
were briefly repotted by the Lord-Keeper : 
" That the lords were all agreed Co de&nd 
id maintain the just liberties of the subject, 
and of the crown ; and thai the word, ' leave,' 
was debated amongst them; and thereby thej 
meant to give no new, but what was before: 
for llie wurds ' sovereign power,' as lie is a 
king, be i* a sovereign, and must have power; 
■HI be said, the words were easier t)»n tbe 
Prerogative.' As for tlie word, ' that,' which 
I a rdadve, atul referred to ' tlutt power,' that 
is for the safety of the people; and this, said 
he, can never grieve any man. Beiug thus 

Cubliahed, it is not sovereign pow^- in geneisl ; 
ut now in confutation of out reasons. Magna 
Charta was not with a saving; but, said he, you 
pursue not tbe wotds in Mapia Charta, and 
therefore it needs an addition. As for the 38 
of Edw. S, he said, there was a saving; and 
an ill exposition cannot be made uf this, and 
both houses have agreed it in substance al- 
ready ; tbe commons did it in a speech detiver- 
ed by the Speaker, and that we say we have 
not a thouKhc to incroach on the king's sovtr- 
r^igncy ; and why may you not add it in your 
Petition f" 

Upon this report, 

Mr. Jlfeuon spake bis opinion in manner 
following : 

In our Petition of Right to the king's majesty, 
we mentbn the laws and statutes, by wtuch it 
appeared. That no tax, loan, or the like, ought 
to^e levied by tbe king, bat by common assent 
in parliament : that no freeman oaght to be 
imprisoned but by the law of the load; that 
no fneeman ought to be compelled to suffer 
soldiers in his house. In the Petition we have 
expressed tbe breach of these laws, and denre 
we may not suffer the like; all which we pray 
as our Rights and Liberties. 

The lords have proposed an Addition to this 
Petition, in these words i ' We huiobty pre- 
' sent this Petition to your majesty, not only 
' with a care of our own Liberies, but with m 
' due regard to leav« entire that Sovertign 
' Poarr wherewith your m^esty it intrusted 



. Addition, is the subject of tliis day's 
discourse : and because my Lord-Keeper, u 
the last tonference, declared their lordshipa 
had taken the words of tbe Petition apart, I 
shall do so too. The word, ' leave,' in a peti- 
tion, is of tbe same nature as ' taring' m' a 
gran(,orsu!tof parliament; when a man grania 
hut pact of a thing, he saves thereat: wl^ be 
petitions to be restored but to part, be leaveth 
tbe rest : then in the end of our Petition, tbe 
word, ■ leave,' will imply, that tometbing is to 
be left of tJiat, or at least with a reference to 
whet we desire. 

The word ' intire,' is very contiderabte ; k 
conqtieror is bound by no law, hut bath power 
dare Ugtt, his will is a law ; and aloodgh 
William tbe Conqueror, at fiiU, to make his 
way to the crown of Emland the nun eaif, 



197) 



STATE TKIAI^, 3 Charlm I 



•ltd the po wwt ion or it rai>re sure, claimed it 
by till* : but mfierwards wbea there were do 
pauerAil pntenders to the ctnmn, che litle of 
amqqcit (to iotroduce that absniute poner of 
a conqueror) was cUimect, apd that statute of 
UatjiM Cbarta, and other statutes mencianed 
in our Petition, do priDcipall; iimit Ihat power. 
I bope it is as lawful for roe to cite a Jesuit, m 
it is for Dr. Maowaring to fabifjr him ; Suares, 
in hii.firtt book, dt I^gilnu, cap. 17. delifered 
kif opiiiiaa in these words, ' Ampliludo et re- 



'Mnctia poteatati! 
' nala vei iajuHa i 



i iajuHa DOD sunt, pendet ex arbitrio 
- nomiBufD et ex ambigaa cortveotione tcI 
' pacta inter rei;es et TCgoum.' And he farther 
cxpreMCih bis <^iQn, Tbat the kiug of Spain 
was to absolute a monarch, ibat he might law- 
fuUj ii^Nwe tribute without cnnseot of his 
people, nntil about SOO Tears unce, nfaea it 
was condodeii between him and his people, 
that without consent of his people bj proxies, 
he sfaodid not impose any tribute. Arid Sunres's 
opinioD is. That bj that agTceni«nt, the Linn 
of Spkin are boaad lu impose no tiibuie wiib- 



And this agreement that author calls a re- 
straiaii^ of that suv«reigo power ; the Siatutea 
then mentioned iii our Petition, rettraining that 
absolute power of aConqneror; if we recite 
those statutes, and t«;, we leave the toverei^ 
power intira, we do take away that restraint- 
which is the rirtue and itrengtli of those sla- 
ti^ea, and iM *t liberty the c£tim of the sove- 
rei^ power of a conqueror, which is to be 
bmilcd and restrained by no laws ; this may 
be the danger of the wonl, ' intire.' 

Hie next word ilelirercd by the lords as 
obserrable, is the particle, ' that;* becattie it 
was Mid, that all sovereign power is not men- 
tioned to be left, but oul; (that) with which 
the kitig is trusted for our protection, saret^f, 
>od happiness; but I conceive this to be an 
exception of all sovereign power ; for all sove- 
(««« power in a king, is for the protection, 
safety, and happiness of his pe«fje. If all »n- 
vercign power be eiceptfcl, you nay easily, 
judge the consequence, all loans and taxes 
tKiOE imposed by colour of thnt sovereign 

The oeiC word is, ' Trusted ;' which is very 
unbiguiHu, whether it be meant, trusted by 
God onlj Bi a Conqueror, or by the people 
•bo, as King, nbicb ai« tn govern hIm occord- 
iof to laws, ej patio, la this point I will not 
presume to adventure liinber; only I like it 
not, by reason of the doubtful exposition it ad- 
mits. I have likewise considered the proposi- 
Doa kselT, and therein I iksve iklleii upon the 
dilemma, that ibiii Addition isball be construed 
ettbertorvfler onto the Petition, or not; ifii doih 
Dot refer anto ilir Petition, it it merely useless 
and mmeceaeary, and unbefitting the judgment 
of this grave and great iiiasiiiliit to add to a 
Petition of this ncieht. If it hnib refeisnce 
BBto it, then ^t destroys not only ihe virtue and 
■rtng^ of oor Petition of Right, but our riibts 
iJMuelre*; ibr the Adtfition being rcferreo to 



16Q8.—lhe Libaiy t^Oe Sk^I. 
each part of the Petiiio 



(IDS 

ought to be 

compelled to mate' any gift, loan, or such like 
charge, without common consent, or act of 
parliament, unlrss it be by the sovereign [lower, 
with which the king is trusKd for the proteo- 
tion, safety, and happiness of his people. 

That none ought to be compeUed to sojourn 
or billet soldiers, unless by the same soiereiga 
power ; and to of the rest of the Rights con- 
tained in the Petition : and then the most fa- 
TOurahla construction will he, that the king 
halh an ordinary prerogative, and by that ho 
cannot impose taxes, or imprison ; that is, he 
cannot impose taxes at bis will to eaiploy them 
as be pleaseth : but that he hath an extraordi- 
nary and transcendant sovereign power for the 
protection and happiness of his people, end for 
such purpose he may impose taxes, or billet 
soldiers as he pleaseth ; and we ma; avure 
ourselves, that herealler all loons, btiei, and 
billelting of soldiers, wiL be said to be for the 
protection, safety, and happtnest of the people, 
pertainly bereafter it will be conceived, that an 
house of perlinmenl would not have made an 
uonecessary Addition lo this Petition of Right; 
and therefore it will be resolved, that ibe Addi- 
tion hath relation to the Petition, which will 
have such operation as I h^ve formerly de- 
clared; and! Uie rather fear it, becanse the 
late loan and billetting have been declared to 
have been by sovereii^n power for the good of 
ourselves; and if it be doubtful whether this 
proposition hath reference to the Petition or 
not,! know not who shnlljudee whetlier loqns 
or imprisonmenis hereafter be by that sovereign 

A parliament, which is made a body of se- 
verol writs, and may be dissolved by one iwm- 
mi^on, cannot he certain to decide this ques- 
tion. We cannot resolve chat the Judges shall 
, determine the words of the King*s Letter read 
in this house, expressing the cause of commit- 
ment may be such, that the judges have not 
capacity ofjudicature, no rules of law to di- 
rect and juide their judgments io cases of tlixt 
traiuceniiant nature; the judges then, and the 
jucl^ents, are easily conjectutvd. It halh 
Deen confessed by the king's couniel, tlinc the 
statute of MatEna Ghana binds the kiug, and 
his sovereign power cannot be divided from 
himself. IT then the stniute of Mafoa Charta 
binds tbeking.it hinds his sovereign power. 
If to the Petition theae nords be added, thtt 
exposition must be, that the statute of Ma^a 
Charta hinds the king's sovereign power; saving 
the king's sovereiin power, I shall endeavour 
to give some answer to the Reasons given by 
the lords. 

The first ii. That it is the intention of both 
bouses, tn maintain the just Liberty of the 
Subject, and nnt lo diminish ihe just power of 
cbe king : and therefor^ the expression of that 
intention in this Petition, cuinot prejudice us. 
To which I answer. 

First, oar intention was, and is, ai we then 
professed, and no man can assi'gu any particular 



199] STATE TR1ALS> SChablesI. \0Q5.— Proeeedinss in Parliament relaiv^ to -[HXi 



in viiirch we have done [9 the contrary ; nei- 
ther have we anj waj transgrt-ssed in that kind 
in thii P«[uion : •nd if weinake this Addilion 
to the I'ettdon, it tvould give siirae intliaation, 
that we have eiven a ciiuse or colour of uflence 
therein ; which we deiij : niid which if any 
roan conceive bo, let litm assign the particular, 
tliiit ne mny give aiisiver (hereunto. 

liy our Petition, we ■ inly, desire nur particular 
Righia and Liberties to be coufinned to us; 
ana tlierelbre it is not proper fur us in it (o 
inentinn sovereij-n power in general, being al- 
ti^ethcr impertiiieul to rhe matter of ihe Peti- 
tion. — There is a great difference belwcen the 
wnrdii of the Addition, and the words proposed 
therein, vh. between just power, winch may 
tic conceivMl to be limited by laws, and Mive- 
reign puvier, which is supposed to be Irans- 
Cendant and boundless. ^ 

The second Season delivered hj their lord- 
ihips, was, Tliat the king is SDvereign ; (hat ns 
he in sovereign, he hitth power, and that that 
eovereign pontr is to be left :' for my purt, I 
ivonld leave it to, as not to mention it ; but if 
it 'iiould be expressed to be left in this Peti- 
tion, as it is proposed, it must admit something 
to be left in the king of wliat we pray, or at 
least ndmk some sovereiijn power in his m^- 
je%tr, in these privileges ivhich we claim to be 
our ri'ihl, which would frustmtB our Petition, 
niid destroy our rij^ht, as I have formerly 
(tiewed. 

The third Reason given" fir this Addition,, 
was, 'Oi-.it in the statute of ArtitniU super 
Ch.irt.is, there is a suviiig of the Right and 
Seitiniory of the crntrn. 

Towhichlgitethese Answers: ThatMapna 
Cliarta was C'iniirmed above thirty time;, and 
a general taring w:is iu none of these nets of 
confirmation, but ill, this only ; and I see no 
caute ne should follow one ill, and not thirty 
good precedents ; and the rather, because that 
KLvifig produced ill eDects, that are well known. 
—That saving was b; act of parli-iment; tlie 
conclusion of which act is, Tliat in nil ib'isr 
cpscs ihe king did will, and all tho'C that were 
at the making of Chat nrdinnnce did intend, 
thhttlie Right nndSeiijuiory of iliecrownshouU 
he saved 1 by ivhich it appears cliat the saving 
was not iu the Petition of the commons, but 
hdded by the king ; for iu the Petition, the 
ling's wilt is not expressed, 

111 that act the king did grant, and part with, 
to his people, divers rights beloDEing 10 bis 
, prerogative, ns iti the first chapter tie granted. 
That the people might chuse three luen, whicli 
uii^ht have power to hear and determine com- 
plaints, made ngniiist those that oSended in 
aiij [Miint of Magna Cliarta, though they were 
the king's oAicera, and to line and ransom them. 
And in the S, 12, and 19 Chapters of tliat Sta- 
tute, the king parted with other prerogatives, 
mill therefore there minht be some tcason of 
. the adding ofthat sovereign power, by the king's 
counsel; but in this Petition, ive deiire- no thing 
of the king's prerogative, but pray the eJijoyiiig 
'if our proper and undoubted rights aiid privi- 



The fourth Reason given by ibeir lordships, 
v^ns,ThBt bjbtlie mouth of our Speaker, i» 
have this parliament dtctired, Ihnt it va* 
far ftDUi our intention to incroach upon his toa* 
jesty's prerogative, and thnt therefore it couM 
Dot prejudice us, to menti'in the same resoli^ 
tion in an oddition to this Petition. 

To which 1 answer, That that declaration 
wn9 n general Answer to a Meiuge ftt>m his 
mnjeity to us, by which his majesty expresKd 
thnt he would not have bis pren^utive striiit- 
ened by anynew explanation of MngnaChitrta, 
orthe reat of ihesiatules: and therefore that 
cipression of our Speaker's was then proper, 
to make ithave reference to this Petition, then! 
being nothing therein contained, but paiCtcuhv 
Rights of tlieSnlijrct, nnd nothing at all con- 
cerning his mnje>ty's prerogative, — Secondly, 
That Answer was to give bis majesty sntisfaciion 
of all our proceedings in general, and no man 
can assign any particular, in which we hare 
broken it; and this Peiiiiunjttitilies itself, that 
in it we have not olTended ui:aiiist the pmtc»- 
tation : and I know no reason, but that tliii 
decl.iralion shouhl be ndded Co all our lain we 
shall agree on this parliament, as well as to this 
Petition. 

The last reason given, was, Tliat we hare 
varied iu our Petition from the words of Magna, 
Charta; and therefore it «a» very neceisa^ 
that a saving should be added to this Petition. 

1 answer, that in tlie statute 5 E. 3, S.t E, 3, 
88 E. 3, and other statutes, with which Miigaa 
Charts it coiiGmied ; the words of the statute 
of eiplannlioil differ from the words of Magna 
Ghana itself; the words of s'lme of the iis- 
tutes of uiiplanauan, bcin^, ' 1 bat no man 
' ought to he apprehended, unless by indict- 
' men!, or due proceis of law ;' and the otijer 
stHtutes differing from the words of Magna 
Charta, tn many other psrticuliirs, nnd jet thera 
is no taking in those stnliites, much less shniila 
there be anv in a Petition of Ri^ht. These are 
the Answers I have conceived to the Itcawni 
of their lonlships, and the exposition, I appre- 
liKid, must be made of the proposed wordj, 
being added to oar Petition. And theiefore, 
I conclude, ltij.t, in my opinion, we ipjy not 
consent to this Addition, which I submit to 
better judgments. 

The Cunuiions afterwards appointed Mr. 
GlanviJe and sir Henry Marlio to manage ano- 
ther tTonlereiice to be had with (he Lords„coo- 
cerning thesaid'inatter, and to clear jhe sense 
of the Commons in that poiTit: The one nrgueo 
the legal, the oiher the rational part. 

Mr. GiAXViLLi's Speech in a full ConwulW* 
of both Houses of Parliament, MoySJ. >" 
the Painted Cluiiiiber at Westiointter. 

My lords, I have in charee, fromlbe Com- 
mons House of parliament {nbeteof I s"" ' 
member) to express tliis day before your l"r^. 
ships Some part of their clear sense, IobcIbob 



tOl] STATE TRIALS, 3 Chables I. iRIS— the Hbariy qf i*e Svbjat. 



1^09 



ixr point that h»(h occurred in tha great He- 

tnte, obich hath so long ilepended in boih 
boityn. — 1 shall not need man^ words to induce 
or store the quesiion, which I am to liHndla in 
a» fne conference. The subject matter of 
ou meeting is irell tnofrn to jour lordships, I 
win tberelbrc ont; look so far back apon it, and 
to fer recollect summBrily the proceediDgs it 
bull bnd, at may he requisite to present clearl^r 
to jour lordships coasirierationii, the nature 
ud conseqoence of tlie particular nherein I 

Your lordships may be pleased to rememlier, 
BOW that the Commaas in this pnrliament have 
hmed a Petition (o be presented to liis ma- 
jotj, a Petition of Right tighily composed, 
iritimg nothing but trutb, desiring nothing but 
jiaice ; a petition jumIt occasioned, a petition 
nccnsary and lit tor these times, a petition 
faoaded upon solid and substantial grounds, 
the laws and statutes of this realm, sure rocks 
to baild upon ; a petition bounded within due 
limits and directed upon right ends, tn vindi- 
cstt some lawful nndjusc liberties of the free 
nljef^ts of this kinedom from the prejudice kf 
TJolaTOOB pnst, and toiccure them from future 



j^od hetAuse mv fullowing discourse must 
w6ret chieflyi if not wholly, upon the matter 
of this Pebuon, I slinll here crnve leave shortly 
10 open to your lordships the distinct par^ 
whereuf it doth consist, and those ara four. 

Tbefirti concerns Lei ies of Monies, by way 
of Loans orothenviie, for his majesty's Supply; 
(fcclariug, that no man ought, and praying tliat 
no min hereafter be compelled to make or yield 
uy gift, loan, benevolence, tax, or such like 
durge, nithtiut common consent by act of 

). The second is concerning thai Liberty nf 
Fereon, which rightfully belongs to the free 
ilbjectsofthisreiJul, eipressingit Id beagainst 
the tenure of the laws and statutes of tlie land, 
tkat any freeman ^ouM be imprisoned without 
nsse shemed ; and then recitinn how this 
libc-ny, amongst others, lialli lately been in- 
fiini^d, it conclude ih with a just and necessnry 
ile^ire, for the better clearing and allowance of 
tliijpiitilege foi- the foiure. 

3. The third declnreih the unlawfulness of 
Wletting or placing Soldiers or Mariners to 
wjoura in free subjects houses against their 
"illl, and prayelh remedy ngainst that griec- 

4. "ne iburlh tmd last aiinctli at redi'ess 
lOBcbing Commissions, to proceed io the trial 
■nd condemnation of offenders, and causing 
them to be executed und put to dwth by the 
lan^Iartbl, in times and places, when and 
•here, if by the laws and statutes of the land 
Ibej hod desenrd de^h, by tlie same laws and 
■tiutes also they might, and by none other 
ooeht to he, adjudged and executed. 

Thij Petition, the careful house of romraons, 

Wtwillingtoomit any thing pertiiiiiing to their 

mtite, or which might advance their modciale 

■ Mft jojt end), diJ heretofore offer up unio your 



lordships' considenitia: 



humble desire. That in _ 
tice, you would be pleased to join wiih them in 
presenting it to his mnietly, that so coming 
from the whole body ol tlie realm, the peers 
and people, to him that is the liead of both, ' 
our gracious sovereign, who must crown the 
work, or else all our labou^ is in vain ; it might. 



B easy passage, : 



1 obtain the 



find the n 
better ans' 

Your iordshipa, as your manner is in cases 
of 9U great impurtance, were pleased to debate 
bb3 weigh it well, and ihcrruuon you pro- 
pounded to MS some few Amendments (as you 
termed them) by way of Hltcration, aliedging, 
that they were oidy in matters of form, and not 
of substance ; and that ihey were intended to 
00 other end, but to sweeten the Petition, and 
mate it the more passable with his majesty. 

In this the House of CottimoDS cannot but 
observe that fair and good respect which your 
lordships have used in ynur proceedings with 
then), by your concluding or voting nothing in 
your bouse, until you had imparted it unto 
them ; whereby our meetings about tliis busi- 
ness have been justly auled free conferences, 
either party repairing hither disengaged to hear 
and weigh the other's reasons, and hoth houses 
coming with a full intention, upon due consi- 
deration of all that can be said on the other 
side, tn join at last in resolvii'g and actirg that 
which sljoll be found most just and necessary 
li>r the lionour and safety of his, nnjesty aud 
the whole kingdom. 

And lunching those propounded Alterations, 
which were not many, your lordships cannot 
but remember, that the house of commons 
h.ive yielded to u.ii accommqdntion, or cbnnoe 
of their Petition in two pariiculars; whereby 
they hope your lordships have obsened, a» 
well Bi you may, they have not been affected 
unto words and phrases, nor overmuch :ibound- 
ing in their own sense ; but rather willing tit 
comply with your lordships in all indifferent 

For the rest ofyoor proposed Amendments, 
if we do not miscuncdve your lordships, as we 
are confideiit we do not, your InrdBhips, of 
yourselves, huve been pleased to reliiKjuif^h 
them with a new ovt-rture, for one only clause 
to be added in the end or Ibot of the Petiiion, - 
whrreby tlie work of this day is reduced to .one 
simple head, whether that clause bhall be re- 
ceived or not ?— This yielding of the comiuons 
in port unto yoor lordships, of other points by 
you somewhat insisted upgn', giveth u* great 
assumnce, that our ends are one ; and putlelti 
us in liope, that, in conclnsion, ive shall con- 
cur, and proceed unanimously to seek the same 
ends, by the sume pieans. 

The Clause propounded by your lordships to 
be .added ta the Petition' is this' : 

* We hirmbly present this Tetition' to your 
' majesty, not only with a care for preservation 
■ nf Liberties, but with a due regard to leave 
' int ire that Sovereign Power, nhctenitii your 



303] STATE TRIALS. 3ChablesI. JOiS.—PriKeedwgiiitParUatiaUrtlatingto [HOi 

o be applied onlj for pratectioa, wretf, mnd 

lappincN of ibe people, '- — '-- — -—' > 

there could be no danger 



' m^fttj is inCnuted for tbe protectiun, Mfetj, 
' and happineas of jour people.' 

A ClKuia tpecious in shew, and imooih iu 
words, but in effect and consequence uio*t diui- 
gerotis, as [ hope to make mnsc evident: bow- 
ever, coming ftam jour lordships, the house of 
coiDinons took it into cbeir couuderaciunt, as 
bectnie them, and apprehending upon the Gnt 
.debate, that it threatened ruin to (he wbole 
Petition, the; did heretofore deliver tome Rea- 
«ons to your lordships, for which thej then de* 
sired Co be spared from admitting it. 

Til thew HeasuDs, jour lorashipt offered 
Mme Answers at the lose roeeiini; ; which hav- 
ing been Taiibfiilly reported to our houM, and 
there debated as was requisite for a business 
of such Height and importance, I itiuH say 
truly to your lordships, yet with due reverence 
10 your opinions, the Commons aie not tata- 
fied with your argunieiits; and therefore Ihey 
have cainmandtd me to recollect your lortj- 
ships reasons for this clause, and in a fnir reply 
to let you see the cuu&ex why they differ from 
jou in opinion. 

But before I come to handle the piniculars 
vihereia we dissent from jour lordships, I uill 
ill tbe lirbt (ilace take notice yet a little Turther, 
of thai general wherein we all concur ; whicli 
is, that we deaira not, ndtber do your lord- 
sbijM, (o augment or dilslc the Ubertics and 
Pnviiegesoftlie Subjects beyond the just aad 
due bounds, nor to encroacb upon tbe limiis of 
his mnjesty'i Prerogative Royal. And ds in 
this, your lordships at tlie list meeting rx pressed 
cleariy yuur own seniei, so wero your luid>liips 
uut misiaken in collectinft the concurrent teu at' 
aad loeauingof theliuuse of cuinmoni; ihey 
oHen have protested, they do, and ever roust 

Kiteat, That these have been, and shallbrlht^ 
iinds of tiKtr desires, to deiniuid sod seek 
nothmg but thAt which may be fit fiv dutiful 
And loyal subjects to ask, and for a itrucions 
■ud just kills til grant ; far as they daim by 
laws some libertirs for themselves, to do they 
acknonledf^ a prerogativf, a high and juit 
prerogative belonging. to tbe king, which ihey 
luteQd not to diminish. And now, my lords, 
being asMued, nut bv ttramed iufereiiccf, or 
obscure collections. Out by [he express and 
clear declaratiooi of both houses, thai our ends 
are the same; it were amiierableunlmppiness, 
if .we should fall in finding ou[ tbe means to 
accomplish our desires. 

My lord!, the heads of those particular Rea- 
Kons which lyuu insisted upon tM lost day, were 
only these : 

1. Vou told us, that the woid ' leave ' was 
of such a nature, that it could ^>e no new 
thing to his miijescy. 

i. That DO just eiception ceuld be taken to 
the Kords ' Sovereign Power;' lor that as his 
majesty is a kioc so he is a sovereign ; and u 
be is a sovereign, w he bath power. 

. 3. Thnt the sovereign power mentioned in 
this clause is not absolute, or indefinite, but li- 
mited aad regulated by the particle ' that ;' 
ud 1^ word ■ kubtec^uent ' which restraint it 



happiness of ibe people, whereby je intErred,^ 
' _ in the aUowance 



That this clause contained no more in 
substance, but tlw like eipresaiuus of our. 
meanings in this Petition, which we bad fop- 
merly signified unto Ills imyeaty by tlie mouth 
of Mr. Speaker, .that we no nay intended to 
encroach upou his majesty's sovereign power 
or prerogative. 

5. That in our Petition we have used other 
words, and of larger eitent, tonchiog our Xii- 
berties, than are contained in the statutes 
whereoi) it is grounded : lu respect of which 
enlargement, it was fit to Inre some express, or 
implied saving, or narrative decluratory for the 
king's sovereign power, of which oarnLtivs you 
alledge this ckuse to be. 

Lastly, Whereas the commons, as a main 
argument against tbe clause, had much insisted 
upon this, that it was unprecedented, and dd- 
parliameiitary in a petition from tlie Subject, 
to inhert a saving Kir [lie crown ; your lord- 
ships brought for lustance to tbe contrary, tlie 
two statutes of the 25 Ed. 1, coounoiiiy called 
coiifirmalio eharlamm, and SS Ed. 1, known 
by this name of Articuli tuper Charts ; in 
both which Suuites there are savii^ for the 
king. 

Having thus reduced t« your lordships me* 
mories, the effects of yuur own Reasons; I 
will DOW, with your lonlshipl favour, come to 
t1>c points of our reply, wherein I must hum- 
bly beseech your lordsliips to weigh tlie rea- 
sons which I shall present, not as tbe sense of 
myself, (he weakest inrnitier of our house, but 
as the genuine nnd ime sense of the wbol« 
house of conimons, conceived in a busineM 
there debated with tbe grcitiest gravity and so- 
lemnity, with the (greatest concurience of OJM- ' 
niuns, and unanimity, tliat ever was in any bu- 
siness maturely a^tnted in that house. I shiiU 
not, pemdventurc, follow tbe method of your 
lordsliips recollected Reasons in my aniweriug 
to tlicm, nor labour to urge many reasons. It 
is the desire of the commons, that llie weight 
of their arguments sliould recompense, if need 
be, the smallness of their iiumber. And, in 
conclosiOD, when you have lieoid me through, 
1 hope your lordships sbnll be enabled to cul- 
Ject clearly, out of the frame of what I ihall 
deliver, tmit in some part or other of my di«> 
course there if a titll and aatiifactory answer 
given to every putJcnlar reaaoo or objection 
of vour lordships. 

The Reasons that are now appointed to be 

Iiresenled to your lordshius, are of two kind^ 
rgal and rational, of wluch those of the former 
sort Me alloRed to my charge ; and the fint of 
them is thus ; 

Tlie clause nmv under question, if it be 
added to the Petition, then either it must refer 
or relate unto it, or else not; if it have no 
such reference, is it not clear that it it needleM 
and superfluous? And if it have such refer- 
ence, it it not dear, that tbeu it must nredt 



205] STTATE TRIAI^, 3 Chaubs I. iQ2S.—t^ Liberty ^ the Sulfftct. 



[%» 



, I would offer lu a vain thinj; ; 
■nd tbetvTore tddngit for granted, that if it be 
added, it would m^ to the Petivon ; let me 
bwe e cb jour lonbfaips to obierve niih me, 
•■d with ihe booK of coramong, what ftlreia- 
tioD Mid qualificauoD of the same it will intru^ 

Hie Fetitioo of itself, limpIy, and without 
Jin c l Ma e, dedasth absolotel} tiie right* and 
pritil^e* of the mbiect, in diiere points ; and 
nmi^ tbe rew toacIiiD|; the levies of monies, 
bjwajr of loans or otherwise, for his majut/s 
•npplT, Ttial Mch lotiu and other charges of 
^ hke mture, bj the laws and statute* of this 
land, oogfat not to be made or laid withbnt 
cfimnon consent by act of parliameat: Bat' 
adnut this clanse to be anneied with reference 
(to the Petition), and it must aecessarll; con- 
dude and have this expoution, iThat Loons 
and tbe like charge* (true it is, ordinanly] are 
ipinst tbe laws and statutes of the r^m, 
• nalcss thej be warranted by soiereign power,' 
and tlmt ^ey canoot be commanded or raised 
wkbaut aiaeiit of parliament, ' unlet* it he by 
' ao*ei«^ power : What were this hut to ad- 
nit a sovereign power in the king above tbe 
laws and statutes of the kingdom 1 

Another part of this Petition is, That the 
free solgects of tlus realm ought nut to be im- 
piaoned withoot cause shewed : But by this 
danse • sovereign power will be admitted, and 
kit entire to hia majesty, sufficient to control 
the Ibrce of law, and to brinjr in this new and 
dangenNU interpretation. That the free aab- 
jecti of ihia realm ought not by law to be im- 
pTHmed without cause sbewe«], ' ualeaa it be 
' br Mivereiga power.' 

fa a word, ttiis clause, if it (hould be ad- 
mitied, would take away the efiect of every 
part of tbe Petition, and become destructive 
to the whole: ii>r thence wiU be tbe exposi- 
tioa toocbtag the billeltiog of Soldiers and Ma- 
riner* in rreenen's houses againK their wills; 
attdtfacDce will be tbe exposition touchins the 
times and pkicet for execution of tbe Law Mar- 
tial, contrary to tbe law* and statutes of tbe 

The scope of this Petition, as I have before 
dbseived, is not to amend our case, but to re- 
state ua to tbe same state we were in before . 
whereas, if tfais clause be received, instead of 
esendiDK (be condition of the poor sal^ects, 
whose Qbrrtie* nf late have been miserably 
▼iidaud by some ministen, we shall leave them 
Wane than we fonnd them ; instead of curing 
their woandi, we shall make them deeper. 
We have set boonds to our desires in tbi* great 
Twiiiii sii, wfaereor oa« i* Dot to diminish the 
preropuive of tbe king, by mounrine it too 
Wb ; and if we bound oursdve* on the other 
tiae with tbi* limit, not to abrid);e the lawrul 
ptirilqn of tbe nbject, by descend] 
Madi (hat which i* meet, 
can Uame n*. 
My lofdi, tti tbtre is neniion made in the 



!scendine be- 
rh, we hope, 



additional Clause of Sorereign Power, so i* 
there likewise of a trust reposed in hi* majesty, 
'.oucbing the use of sovereign power. 

The word < Trust' i* of great latitude and 
large extent, and therefore ou^t to be well 
and warily applied and restrained, especially in 
tbe case of a king ; there is v trust inseparably ~ 
reposed in the persoua of the kings of England, 
but that trust is regnlated by law. Fm exam- 
ple, when statutes are mode ti> prohibit thing* 
not mala in le, but only aaia gttia prohiUta, 
under certain forfdturea, and penalties to 
accrue to the king, and to the iaformers that 
ibatl sue for the breach of them ; the commqns 
raifst and ever will acknowledge a regal and ' 
sovereign prerogative in the king, touching such 
statutes, that it is in his majesty's absolute and 
undoubted power, to erant diipensatinns to par- 
ticular persons, wiih the clauses of mm obtlaale, 
to do as they mij^ht have done before those Bta~ 
tutes, Wherein bis miyesty, conferrinf( grace and 
favour upon some, doth not do wrong to others. 
But there ii a difference between those statutes, 
and tbe laws and statutes whereupon tbe Peti' 
tion is grounded ; by those statutes tbe subject 
has no interest in the penalties, which are all 
the fruit such itaciies can produce, until by 
suit or inCormatian commenced he become en- 
titled to the particular forfeitures ; whereas the 
laws and statuiesmeotianed in our Petition are 
of another nature; there shall your lordship* 
find DS rely upon the good old statute, called 
Magna Charts, which declarelb and confirmeth 
the ancient common laws of the liberties of 
England : There sbalt your lordships aho Gnd 
us to insist upon divers other nMst material 
statotfi, made in the Lme of king Edw. 3, and 
Edw. 4, and other &muus kings, for explana- 
tion and ratification of the lawful rights and 
[Irivileges belonging to tbe subjects of this 
realm : laws not inflicting penaltie* upon of- 
fenders, in malii prohibitit, but laws declara- 
tiie or positive, conferring or confirming, ipso 
facto, an inherent rigbt and interest of liberty 
and Ireedom in tbe spbiects of this realm, as 
tlieir birthrigbiB and inheritance descendable 
to thair heirs and posterity; (Statutes incorpo- 
rate into the body of the common law, over 
which (with reverence be it spoken) there is no 
trust reposed in the king's ' Sovereign Power,' 
OT ' Prerogative Royal,' tn enable him to dis- 
pense with ihem, or to take from his gulHects 
that hinhrigbt or inheritance wliich they bare 
in their liberties, by virtue of the common law 
and of these statutes. 

But if this Clause be added to our Petition, 
we shall then make a dangerous overture to 
confound this good destination touching what 
statutes the king is trutted to controul By dis- 
pensatisns, and what not ; and shall give an 
mtimatioD to posterity, as if it were the opinion 
both of the lords and commons aBsemhled in 
this parliament, that there is a trust reppsed in 
the kinE, to lay aude by his ' sovereign power,' 
in some emergent cases, as wpU the Common* 
Law, and such statutes as declare or ratify the 
subjects liberty, oi; confer iatarest upon their 



S!07] STATE TRIALS, 3 Charles I. 16'J8.—ProceedmgsmParliaineHtrdaliiiglo [$QS 

To theie petition) ihekingmadc answer as be 
pleased, somciimn to part, sometime) to tb* 
nliole, BOmetiiiies bj denial, sometimes tij at- 
icDt, sametimei absolutely, and wiuetimf* by 
q^ualiG cation. Upon tbese rootiuas and peti- 
tions, and the kin^s aniiveis to llieiD, wai the 
law drawn up and iugrossed iii ihe slatote'roU 
to bind tbe kingdom ; but tijis inconvenieuc* 
was fciund in thii course, that ofteniiiiiea tbe 
Bialutes thus framed, nere against tlie wnse 
and nicBning of tlie conuitom, at whose desirei 
cbey were ordained; and iheietort: in tlie 2 Ilea. 
5, hading that it tended to the violation uf their 
liberty and freedom, whose li^t it was, and 
ever liad been, tliat au law should b« mad* 
without their mseot; they then exbibited ■ pe- 
tition to the king, declaring their right la thit 
pBiticular : praying, that fiom ihenceibrtb no 
law might be made or iu^oised as statutes, by 
additions or diminulions to their luoiions or pe- 
titions, that should change their sense, or intent, 
without their assent ; which was accordingly 
establi<-hed by adt of parliumeDt. Erer sinc« 
tlien, tlie rigtit hath been, at the use was be- 
fore, that the king taketb tlie whole, or leavedi 
tlie wliole of all Bilb or Petitions, exhibited for 
the obtaining of laws. 

From this ceurie, and from the time when 
first it became constaat und settled, we con- 
clude strongly, that it is no good argument, be- 
cause yc find Saving in acts of parhameiits be- 
fore llie second of Hen. 5, that those Saviogii 
were before in the petitions that b^at thow 
statutes : for if tbe petiliani for the twtt Loans 
to much insisted upon, which petitions, for anj 
ihine we know, are not now extant, were never 
so absolute, jct might tlie king, according to 
tbe usage of those times, insert the Savinf^s in 
hii answers; which passing from thence into the 
Statute-Roll, do only nve some little colour, 
but are not proof at aD that the petiiions also 
were with Savings. 

Thus much for tlic general ; to come now 
to the particular statute of 35 £dw. 1, which 
was a confirmation .of Magna Charta, with 
some provisinn for the better execution of it, 
ns Common Law, which words aje worth the 
Doting. It is true, that statute bath also a 
clause to this elTect, That the king, or his liein, 
from thenceforth should take no AkU, Taxes, 
or Prisaf^ of his subjects, but b; comman'os- 
sent of all the rsalm, saving the aatient Aid* 
and Prisage due and accustomed. 

This Saving, if It were grvnied, (which iinot, 
nor cannot be proved) that it was as w eU in the 
Petition as in the Act; yet can it no way im- 
ply, that it is either fit or sale, that the cJausc 
now in quesCion should be added to our peti- 
tion ; for the nature and office of a Saving, or 
exception, is lo eiempt particulars out of a ge> 
neral, and to ratify the rule in ihiop not ex- 
empted, but in DO sort to weaken or destroy 
the general rule itself. 
Tne body of that law was against all Aids, 
id Taxes, and Prisage in general, and was a 
confirmation of the comrton law, formerly de- 
clared t^UagDaChactiii the Saving was oply 



persons, as those other penal statutes of such 
uatuce us I have mentioned befure; whicb, as 
we can by no lucnns admit, so we believe 
suredly, that it is far from the desiiv of our n 
gracious sovereign, to aflect so vast a tr 
nhich being transmitted to h successor uf a 
fereut temper, might enable him to alter the 
whole frame and fabric uf the conunonnealth, 
and to resulve that government whereby tliit 
kingdom hath flourished for to many year 
ages, under his mnjesty's most royal - - 
and predecessors. 

Our next Reason is, that we hold it contrary 
to all course uf parliament, and absolutely re- 
pugnant te the very nature of a Petition of 
Might, con»sting «f particular), as ours doth, 
to clog it with a general Saving or Declamtion, 
to the weakening of tlie right demanded ; and 
we are bold to renew with some confidence our 
allegation, that there can be no precedent 
^ewed of any such clause in any such peliiious 

I shall insist the longer upon this particular, 
and labour the more carefully to clear it, he- 
cause your lordshins were pleased the last day 
to nrge against us Itie statutes of 35 and 38 of 
Edw. 1, as a^uments to prove the cnntrary, 
and seemed not to be satisfied with that which 
in this point we had affirmed. True it is, that 
in those atatates there are such savings as jour 
lordships haie observed; but I shall offer you 
a clear answer to them, and to all otlier savings 
of like nature that can be found in any statutes 
whatsoever. 

Tirit in the general, and then I shall apply 
particular answers to the particulars of those 
two Statutes ; whereby it will be ihoif evident, 
that those examples can no ways suit with the 
' malternowio hand. To this end it will be ne- 
cessary, that we consider duly what that (|ues- 
tiun is, which indeed concerAeth a petition, 
and not an act of parliameui. This being well 
observed, h} shewing unto your lordships the 
difference between a petition for ihe law, and 
the law ordained upon such a petition, and 
opening truly and perspicuously the course that 
was holden m fraoiing of suuutct before 3 Hen. 
5, different from tliat which ever since then 
hath been used, and i> still in use amongst us, 
and by noting the times wherein these statutes 
were made, which was about one hundred years 
before 3 Hen. 5, besides the differences be- 
tween these savings and this clause; I doubt not 
but I shall give ample sHtiatactinn lo your lord- 
ships, that the commons, as well in this as in 
all tbeir ether reasons, have been must careful to 
rety upon nothing hut that which is most tnw 
and pertinent. 

Before the second year of king Henry 5, the 
comae was thus : when the commons were 
suitors for a law, either the Speaker of iheir 
house by word of mouth from tlien, the lords 
house Joining with them, or by some Bill in 
writing, which was usually called their Petition, 
moved the king, to onjaiii laws fur the redress 
of such iDiscliie6 or inconvenieucet, as w«re 
fbnnd ffiaToiit unto the p«ople. 



309] STATETRtAI^, SCiiABtEsT. lOQ8.—ae Vber^ if He Stiijeet. 



ti Aid* anit Prts^ in paittcular, m well de- 
■cribed and rcsliaincd bv ilie nordt, ' aocieiit 
' ud ■ccnstoiDcd,' ibat there coulH be no doubt 
vhat could be tbe dear meniiiiiE nad eicent of 



tobim, waatteQkaowninitiaae da;i,aDdu not 
jet foifotten. 

Tbete Aida were three; froni ebe king'i te- 
aants b; knighu serrice, due b^ the ciiinmon 
liw, or general custom of the realm : Aid to 
nntom the king'i rojral penon, if unhappily hi; 
tboold be taken priioner in the wan: Ala to 
make the ktn^a eldest sou a knight, and Aid 
to many tbe kiDg'j eldat dnugbtrr once, but no 
mare: Mid that those were Lhe onljrAids Imend- 
(d to be lUTed to the crown b; that statute, 
•ppeareib in tome cleaniexs br'tbe Charter of 
king Johij, duted ni Runaing-Mefid the 15lh of 
Jane, in the £flh year of lus reigtt, wlicrein 
tkg; an enaneivted with an exclusion or ail 
otbfT Aids wbotaoerer. Of this Clianer I have 
hat one of tbe originois, wherEOu 1 beseech 

Eir lordlhips to cast jour ejres, and give me 
ye to read tlie Kry word* which concern 
tUt peint. nese words, oij^ lords, arc thus: 
'Nullam tcutigiuoi I'el nuxiliuro pouatur in 
'regno nostro, niai per comtaune cooaiJium 

* regni noatri, niu ad corput nosin^ta redim«>- 
' dim, et priniogeaiiuni filioin nDatrum militem 
' bcienduBi, et ail fUiam nnitram priniugcaitam 
' Kniel inaritaDdam, et ad hoc oon 5«t uisi ra- 

* Uouabile auxiliuio.' 

Touching Pritage, the other tfainj; eiceptcd 
by ihii Statute, it i* also of a partjcular right 
to tbe crowD so well koown, tbnt it needpih ao 
dcKTiplioii, the king being in pouessionof it by 
ewy day'* usage. Tt it to take one tun of 
■ine before the mast, and another behind tbe 
mut, of erery ship bringing in abore twenty 
lUDiofwine, and here discbar^og ibeoi bj way 
ofmerchandue. 

But oar i'«tition consisteth altogether in pai>- 
ticnlara, to which if any general Saving, or 
word* amoautlDg to one, ibouid be annexed, it 
cannot work to confinu things not excepted, 
wUch are Boiie,butto confound thing* in eluded, 
■kich arc kQ the ^arts of tbe Petition ; and it 
iButt needs bcf>et this datigercu* exposition, 
ihti the Rights and liberties of tbe subject, 
declared an^ demanded by tbii: Petition, are 
not theirs absolutely, but nwmodo ; not to con- 
liaue always, but only to take place, when tbe 
king Is pleased not to exercise that ' sovereign 
' power,' wherewith, this clauae admitted, be 
is tfusted for the pratectiou, safety, and hap- 
piness of lui people. AnJ tbui that birthright 
and inberitiuice,tvbicb we ha*e io our liberties, 
tball by ost own assents be turned into a isere 
tenancy at will and suiTeranoe. 
Touching the Staiote ofss Edw. 1. Articull 

XChartas, the scope of that Sinlute, among 
tbings, beioK to provide- for tbe better 
obecriii^ and maintaining ef Mi^na Charts, 
bath in it neverttaelesi two Savings for llie 
king; the one paitieutar, as I take it, to pre- 
jttTc tbe aniieiU jirisage, due ' ' 

TOt. ilL 



I of wines and other goods ; the Other geoenl, 

igniorj of the crown in all tiling*. 
To tbne two Saviiifs, besides tbe Sirmer an- 
rere, which rany he for the luoit pan upplied 
I this statute as well at to the former, I add 
these fiirther auswers : tbe first of iliese iwi> 
Savttlgs, is of the same prisage of wiiiet, wbicll 
s excepted in tlie 25 Edw. i, but iu some more 
:leaniess ; for that bete the word, wines, ii ex- 
pressly anncieU to the word, prlsa^r, which I 
take (or to much to be in eipoeitiou of the 
former law: and albeit these words, and of 
other goods, be added, yet do 1 take it to be 
but a. particular Savinp, or exception, wliidi 
being quulilied with tlw words, uniieiil, due, 
and accustomed, is not very daagerous, n ir cnn 
idersiouil of pritage or levies upon goad* 
of nil sorts at the king's will and pleasure ; bw 
only of the old and certain cnstoiiis u|iau wool, 
woilllels, nnd. leather, which were due to the 
crown. Ions before tbe making of thi* atttute. 

For the Tatter of tlie two sacing* in this act, 
which is of die more unususl nature, aud sub- 
ject to the more exceplioD ; it is indeed geoa- 
ral, and if we may believe the concurrent rela- 
tions of tbe Histories of tbow times, a* well 
those that nrc now printed, as those tliat remain 
only in manuscripts, if gave distaste rmm the 
bci-iniirng, and wrougbt no good elFtict, but pro- 
duced 5Ticlt distempers and troubles in the Hale, 
as we wish may be buricil in perpetual oblivion; 
and that the like saving In llicse anil future 
times n)ay never breed the like disturbance : 
6ir tirom hence arose a Uulonsy, that Magna 
CharU, which detUiu'ed (he ancient right of tlie 
subject, and wns an nbsolute law in itu:ll^ being 
now confirmed by a latter act, with ibis addi- 
tion of a general laving j lur tlie king's r^ht in 
all things by lhe saving was weakened, and tha( 
made doubti'ul. which was clear before. But 
not to ilepart from our main ground, which is, 
that taviugs in old nets of psrliament, before 
the S H. 5, nrc no proof ihut there were the 
like savings in tlie petitions tor those acts ; lat 
me observe unto yuur lordships, and so leave 
this point, tbut albeit this pctitiun, whereon ibis 
act of aa Ed. 1, was groundud, be perihlied; 
yet bntb it pleased God, that, tiie very frame 
and context of the act itself, a* it is draiva up, 
and entered upon the Statute-roll, and printed 
in our book, duth manifestly import, that tbia 
saving came in by the king's ansner, and was 
Bolin the originalpctitioD of the lords and com' 
raons; for it cometh in at tlie end of the acc 
after ie wonl* (ie roy It veutj which com- 
monly are the words uf ilie rny^d asecn 



kind's raunsel, and the rest who wer 
at [he making of this oidioiince, did ialfind tbe 
same saving ; yet ii not (bat cimclinive, »<• lunig 
us by the form of those tinivs, tbe king's answer 
working upon the wateiiiiU of tke petition, 
tnifiht hie conceived by siime to make the lair 
effectual, though varying frum tha I'rume of the 

The next Beasoo ahick the Coaoiuns have 



«U] STATE Trials, 3 Charles I. ICSS. 

comiutnded me to use, far which the; still de- 
«ire to be «pnred rram adding thiti clause to 
their Petition, is this s This offensive low of US 
E. 1, irhich coiilu-mcd Mognn Chartn, nith a 
Mving, rested not long \a pence, for it gave not 
.thnt snlisfaction lo the lonls or people, as wns 
T^uisite tliey should have in a case so nearlj 
concerning them : nnd therelore about 33 or 
31 of the m-nie king's reign, a. liitter act of jiar- 
hament wits made, ivhercby it nas enacted, that 
all men shoold have iheir Inwii, and iihcrtipa, 
and free cu;toiii!>, as lurgel; and wholly as they 
had used lo hnvo at any time when they had 
Ihemhcst; and if any siiiotej had been made, 
or any customs brought in to the contrary, that 
all such statutes and customs should be void. 

This wag the first law ^liich 1 call now to 
mind, that restored Mngna Cbarta to the 
original purity wherein it was first moulded, 
albeit it hath since been confirmed nboie twenty 
limes more by several acts of parliament, in the 
rwgns of diver* most just and gracious kings, 
Kho were most apprehensive of their rights, 
and Jeatoui of their honuurs, and always 
without savings; so as if between 32 nnd 
34 Edw. 1, Magna Charta stood blemished 
with many savings of the kind's rights or seig- 
niory, which might be conceived to be above 
the W ; that stain and blemish «'ns lorg since 
taken away, and cleared by those many abso- 
lute declarations and confirmations of thit ei- 
cellent law which followed in after ages, nnd so 
it standetli at tliis dH.y pureed and exem^ited 
now from any such saving whatsoever. 

I beseech your lonlibips tberefore to observe 
the circumstance of lime, wherein we offer this 
Petition to be presented to your lordships, and 
by ns unto his nniicsty ; Do we otiler it when 
MunaGbajtftstands clogged with savings? No, 
mj lords, but at this day, when Intter and bet- 
ter confirmations have vindicated and set free 
that law from all eieeplions; and shall we now 
■nnert another and worse saving to it, by en un- 
necessary clause in that Petition, which we ex- 
pect should have the fniit* and effects of a law f 
Shall we ourselves reliotjuish or adulterate that, 
which cost our ancestors soch care and trouble 
lo purchase and refine > No, my lords, but ns 
we should holdourseUesunhappy, if we should 
not amend the wretched estate of the poor sub- 
ject, so let us hold it a wickedness to impair it. 

Whereas It was further uiged by your lord- 
ships, That to insert this clause into our Pctt- 
' tion, would be no more than to do (hat again 
at your lordsliip'a motion and request, which we 
bod fi>nner1y done by the month of our Speaker ; 
and that there is no cause why we jhould re- 
cede from that which so solemnly we have pro- 
fessed 1 To this I answer nnd confess, it was 
ibea in our hearts, and it i| now, and slialt be 
ever, not to encroach on his mnjesiv's sovereign 
power. But I beseech ^our lordships to oV 
aerve the different occnnim nnd reference of 
that protestadcn, and of this cleuse. 

Thu was a general Answer ton general Mes- 
Mge, which we received from his majesty, watn- 
iiHiu not to UKroach upon hii Prerogative; to 



.^Proceedings in ParHameut relatiag to [212 
which, like dutiful and loving subjects, we an- 
swered at full, HCcordiJig to the integrity uf our 
own hearts; nor nastbere any dontierin mailing 
such an answer to such a message, nor could 
we Rostver mare truly or more properly : but 
did that Answer extend to acknowledge ' a so- 
vereign poner' in the king, above the taws and 
statutes mentioned in our Petition, or controtd 
the Liberties of the Subjects, tlifrein declared 
and demanded ? Ko, my lords, it hath no refe- 
rence to a[iy such purticutars ; and the same 
words which in some cases may be fit lo be 
used, nnd were unmannerly to be omitted, can- 
not in other cases be spoken, but with imperii* 
nency at the Icnst, if not with danger. 1 have 
formerly opened my reasons, proving the danger 
of this clause, and Am commanded to iUustral* 
the impertinency iif adding it to the Petition, bj 
a familiar case, which was put in our house hj 
a learned geiitlemoD, and of my oHn robe: tte 
case is thii, two manors or lordships lie adjoin- 
ing together, and pcrcliai«;e inlermiied, so as 
there is some dilflculty lo discern the tme 
bounds of either; as it may be touching the coit- 
fincs where the Liberty of the Subject, and the 
Pru-ogative of the Crown do border each upon 
the other ; lo the one of the riianors the king 
hath clear right, and is in actual possess ioD of it, 
but the other is (lie subject's. ' The king beine 
mis-Informed, that the subject hsili introded 
upon his majesty's manor, asksth his subject, 
ufaetherhc doth enter upon his majesty's mnnor, 
or pretendeth any title to it, or any part of it. 
The Subject being now justly occa^oned, 
maketh answer trulv to tlie king, that he hath 
not inlmdcd, nor will intrude upiio his maj^ty's 
manor, nor doth make any chum or title to ir, 
or any part of it. This answer is [iroper and 
fiiir; nny, it were unmannerly and ill done of 
the subject not to answer upon this occasion. 
Afterwards the king, npon colour of some 
double or single mailer of record, seiietb into 
his highncss's hands, upon a pretended title, the 
subjtct's manqr; the subject then exhifaileth 
his Petition of Right to his majesty, to retain 
restitution of his own manor, and therein layeth 
down title to his own manor only ; Were it uot 
improper tind absurd in this case for him to tell 
the king, that he did not intend to make nn* 
' ' majesty's manor, which la 
■'•■'--aita'ere. This case, 

r , purpose well,and no- 

Ubly eip[aii\ the nature of our Petition. 

Why should we speak of leaving entire ilia 
king's ' Sovereign Power,' wliereon we encroach 
not, while we only seek to recover ourowfi Li- 
berties and PriviltE^s, which have been seized 
upon by soma of the kine's ministers P If oar 
Petition did trench actually upon his majesty^ 
prerc^tiye, would our saying, that we intended 
It not, make the thing otherwisi; than the 
truth i 

My lords, there needeth no Prutcitalioo or 
Declaration lo the contrary of that which we 
have not done ; and to put in such a Clanae, 
cannot nrgne less than a fear in ua, as if we bad 
invaded it : which wa held Nured, and aie «^ 






S13] STATE TRIAI^, 3 Chablu I. 

■DTEd, thnC »e hnre not touched eiiber in our 
words or io our intentious. Aiid touching yiiur 
lordships obi>erv*iion upon the ivord (leave), if 
il bt iioE a prupei word to give any new thing 
n the Liog, sure vie ere, it u a word danecrous 
io auotber sense ; for it may amount, viuhnut 
allqueslion, U) ncLnowlcdije an oldrij^htof' S4>- 
' Tercign poxcr'inhji majesty, above those Inw* 
Mid statutes whereon ouly our liberties are 
(bunded; a doctriue which nc most humbly crave 
your lot^sliips leave fredy to protest against. 
And laryour lordghiij'f proSenng, tliat some 
taving should be requisite for prescrration of his 
nijjmy's' soverrign power' \a respect our Peti- 
tion runneth in larger words than our laws and 
UBtutesnliereonwegroundit; whht is ihisbutft 
dearcoufession by yaurIords1i'rp,thaI this clause 
vas Intended by you to be that saving p For 
'other ssting Uian ibis ws find noHenilercd by 
;uu: and if it be such a snving, how can il 
Hind with yuur lordships other arguments, that 
it should be of no olber effect llm.ii our former 
(ipressioii to bis majesty by the mouih of aor 
SpcaLer? But I will not insist upon collections 
of this kind ; I will onW aliew you the reason* 
oi' the commoDS, why this Peution needetli no 
nch saving, nlbeit the words of tliese statutes 
be eiceeded in the declaratory part of our Pe- 
tition : those cliiugs that are within ihe eijuitj 
ind true meaning of a statute, are as good laws 
u those which are contained in the express 
Inter, and therefore the statutes of the 42 Ed. 
3, 36 H. 3, ttot. Par. ii. IS, and other the ita- 
lutei made in this time of king Edw. 3, fpr the 
nplination of &Iagna Charts, which hath been 
» often vouched in tliis parliament, though 
ibcj differ in words from Magna Cbartn, had 
Ho saving annexed to any of them, because they 
«nncied more ihnn nas contained iu elTect in 
lint good law, under the words, ' per legale 
'jadiciuiD parium 9uorum,autper legem terrs;' 
Mich by these loiter laws are expounded to 
inporj, that none should be put to answer wlth- 
•ut presentment, or matter of recnrd, or by due 
process, or nrit original ; and if othetnisc, it 
■hould be void, and hnldeo for error. 

Il hath not been vet shewn unto us from your 
Iwdsliipt, that we nave in any of our expres- 
■ions or applicntions strained or misapplied any 
of the lans or Etnliit«s whereon ne ao insist ; 
■Bd we arc very confident and well assarod, 
ibatiia such mistaking can be assigned in any 
point of onr petition now under question: If 
ibtrefore it do not exceed the true sense and 
CDDStruction of Magna Cbartn in the subsequent 
bos of explanation, whereon it is grounded, 
■hit reason is there to add a saving lo this pe- 
tition more ihaii to those taws; ^nce we desire 
to transmit the fruits of these our labours lo 
poMeritji, not only for the justification of our- 
leKes, m right of otir present and their future 
hberties, but also for a brave p^pression and 
petpelual testimony of that grace and justice, 
ahicb we assure ourselves we shall receive in 
luj majesty's speedy and cle.ir answer ? This is 
the thag we seek for, and this is the thing we 
hoped for, and this is the thing only wilt settle 



1G23 the L&erty cf Ote Subject. 



[3U 



such an unity and co'olidence betwixt his ma- 
jesty and us, and raise aucIi a clicarfulness In 
th,e hearts of all Lis loving subjects, os will 
make us proceed unnnimousty, and wiih all 
expedition to supply him for his great occa^ona 
in such measure, and in such way, as may 
mflbe him safe at home, and feared abroad, 

Sir Uinry Martin. My lordt, the work of 
this day, wherein the bouse of cnminons harh 
employed the gentleman that spoke last, and 
myself, was to reply to the Answer, which it 
hath pleased the Lord-Keeper to make to thos* 
Reasuns, which we had offered to your bnl- 
ships consiileration, In justification of our refu- 
sal, not to admit iuta our Petition the Addition 
commended by your lordships. Which Rea- . 
sons of ours, since they have not given such 
satisfaction as we di^ired, nn<l nell hoped, as 
by the Lord-Keeper's Answer appeared ; ic 
was thought fit, for our better onicr and method 
in replying, to divide the LortJ-Kecper's An- 
swer into two parts, a legal and a rational i 
The reply to the le^al your lordships have 
heard, myself comes incrusteH lo reply to tha 
rational, which also /consisted of two branches, 
the first deduced from the whole cmitext of the 
additional clause, the second enforcdl oiit of 
some paf t 

In the first were these Reasons, That the 
same deserved our acceptance. 1. As satis- 
factory to the king ; 8. To your lordiiiips ; 5. 
Agreeable to nlin^t ourselves had oltcn protest- 
ed, and professed expressly by the mouth of 

1 must confess thrie motives were weighty 
and of great fgrce ; and tlierefore, to ai'Oid Mis- 
understanding and misconceit, wliich otherwise 
might be taken agninst the houK of commons 
upon the refusal of the propounded Additiori, 
it is aecessnry to state the question rightly, and . 
to set down the true didereuce between your 
lordships and us. Now, indeed, there is no 
difference or question hctiveeli your lordshins 
and us, couccrning this nddidonal clause in the 
nature and quality of a propssitlon. For so 
considered, we say it is most true, ond to be 
received and embraced by us, ' in toto et qua- 
* libet parte el qualibet syllaba;' yea, and went 
that the question, we should add lo the Addi- 
tion, and instead of due regard, say we have 
had, have, and ever will have, a special and 
singular regard, whereto leave entire Sovereign 
Power. But this were to intimate, as if we 
had first crojjt, and then left it ; but our regard 
was lo acknowledge and confess it sincerely, 
and to maintain it consliintly,' even to tn0 
hainrd nf our gonds and lives, if need b^ 

To which purpose your lordships may be 
pleased' to remember that strict Oath eveij 
member of the bouse hath taken this very ses- 
sion, in these words : ' 1 (A. B.) do utterly 
' testify and declare in my conscience, That 
' the king's highness is the supreme sovereign 
' gnvernor of this realm in all causes; &c. and 
' to mv uimost power will ussisi tuid defend all 
'jurisdictions, privileges, prehemioences and 

amborities, granted or belonging to the king'* 



fI5] STATE TRTAI^, SCbaklmI. Itm.'^PivCKdmgim Par&menrrtJatviglo [J» 

' highness, oruiilteilor nnnned, to iheimpctial induce u9 to accept it. But ander bit lant- 
' cronn uf this reHlm, &C.' 

So ItiuE yaar lonJaliiijs n««d not to borrow 
fcnm our pmiestatiuiu nny exbortations lo us, 
tu eutenaiii u writing in assistance of the kiiig't 
EuvtTcign power, siuce vie tlaiid ublit;ed by iTie 
uosi siicrcd build of a stilcmn oiilh, tu nssiat 
and defeiiil the smne, if cnuse or occnsinn so 
■ef[uired. So ihut Uie only question between 
^our iDtdsbips and ue, is, whether this clau^ 
tli'>uld bu addeil (o ouf petition, nnJ received 
iiilo it ns partlLereoff Wliich to do, jour lord- 
ships reusoii's have not penundcd us, becnme 
•o to udiuit it, wera tu overthrow the fubric 
and substance of oni Petition of H^t, and to 
nnnihilate the right preteoded b; us, aiid ibe 
Petition itsell'iu eOect : For these words being 
added lo our Petition, vii. ' Wc iiumbly present 
' this E'etition, &c, nith due regard to leave 
' entire juur soverei^ti power, &c.' do include 
Kuuiifestly an exception to our Petttiou; and 
wi exrepiion bciug of the nature of the tliiu; 
Kbefeuntu it is an exception, ■ excepiio est de 
' regula,' must. of necessity destroy the lule or 
petiiiou, so far as to the caac excepted; ' Ei- 
* ceplio tifinat r^ulnm in coiibus non eiceplis, 
' in casibua exceptui deslruit regulam.' Then 
ibis cunttruclion foDoweth upon our Petition 
tiius entargtu), ttiat after tie bare petitioned, 
that no freentan slmuld be compelled by iinpri- 
■oament to lead or coutribnle money to his 
MiaJBiiy without his assent in parlionieiit, nor 
leceive, agaiost his will, Suldiers iniu ius liaus«, 
or undergo b coDUoission of Martial Law for 
life or member la lime of peace; we slimild 
add. Except bis majesty be .pleased to require 
our moneys, and imprison us for nnt lending, 
and seud soldiers into our iiousei, and execute 
■s by martial law, in lime of pence, by virtue 
«f hi^ sovereign power : which coastruction, as 
it foUoweih necessarily upon tliis eulaifeotent, 
to it coocludeth against our right in ihe an- 
nibses, and utterly fru-iiralcth ejl our Petition; 
neither mtiy it seem strange, if this clause addi- 
tional (which of itself is in quality of a prano- 
wtinn we confess) being added ti> our Petition 
(which also is trne).should overthrow iha very 
Irame and &bric of it, seeing tba lo!;icians 
tabir liuowled|(e of sticb a fallacy, called by 
ihein, ' FoIIbgib i bene diiiais ad mala con- 
' juncta,' Horace the poet givetb an instance 
tu tlus purpose, in n pnmter, who uhen he had 
painted tha heud of a man according to art, 
would then join to it the iirck of a horac, and 
•o raarr the one an<l the other ; nliereas each 
by itseCf might have been a piece of right good 
workmanship. 

The second hmnch of my Lord-Keeper's 
Bitionul part was eo forced out of the last words 
of this Addition, by wbicb his lordship laid, 
that tbey did not leHve intire all sovereign 

Sower, but that wberewiih hismaje!>tyis trusted, 
>i the protection, safety, und Imppiiiod of thJe 
people i ni if, Jiis Inrdship would infer, that 
eovereignpoH'er wherewith, &c. in this place to 
be Icrmiiitiin diaiiautntem, a term of diminution 
nr quali£catioD, and in that cuuMderaiion might 



ship's correction, we cannot so iutrrpret ii 
for lirst we are assured, that there it no sove- 
reign power wherewith bis mnjesly is trustot, 
either by God, or mnn, but only that which is 
for the protection, safety, and bappinets' of his 
people; and therefore, that limitation can make 
no impression upon usi hut we conceive it 
miher in this place to have the force ternu'n* 
aduugcniii, tu be a term ofiinportaat advantaga 
ngaiust our Petition, a term of restriction, and- 
thai wJieMsoever his mnjetty'i soveMign po*N 
should be exercised upon us in all or any the 
paHiculars mentioned in the Petition, wv 
should, without further enquiry, submit there- 
unto, as assuming and taking It pro cs/Mrua, it 
conduced to our safety niM bappinets, &c 
Since tbcrelbre, . (as the PetJiion u now con- 
ceived] it carrieth the form and face of a pic- 
Itire, which representcth to tlie life the pressore* 
and grieruncM of the people, with the easy 
remedies ; and tberelbrc we hope that his ma- 
jesty, casting upon it a Kracious eya, will com- 
passionate his poor loyal subjects, aod-aflord ft 
comrortuble answer. 

I do humbly praise your lordships not To majT 
or blcmiib the grace and bee of this picture, 
wiib this unnecessary addition ; and unnecef- 
SBTT I prove it to be, according to that mle, 
* ^ipresito ejus quod tacite inest nihil ope- 
' ratur.' Andaovenrign powpr, in cases whera 
it haih place, and ought to be used, ie always 
necessarily tinderslood, and thou|th not ex- 
pressed, yet suppliad by reasonable intend ouuit, 
or by the opinion uf all learned men. 

And therefore it nether is nor eau Im by ur 
expressly included, especially in this Petition, 
where the Addition thereof would make Such » 
confusion of the whole sense and substance. 

The £in';'s Sovereign Power and Prerc^ativft 
is always nlile to save itself; andif it worenui^ 
we muti, wirhoiit this Addition, save it to our - 
utmost powers, if we will save our oath,, and 
save ourselves. The true state of the aaiatf 



upon what grounila your lordships are so at 
nest to uTj^e upon tliein this Addition to be in- 
serted into iheu- Pitilion; thev nothing dmibt,. 
but the same proceeded out oi a solicitude aDcl 
fear, which your lordiliips have, lest otherwiae^ 
tlie simple and absolute passage of tliis Peiitioa 
might be construed hereafter in prejudice of 
his majesty's sovereign power: and this vour 
lordihips sidicilude and fear proceedetb Iram 
your love, as the poet saith. < Re« est soIUcitt 
' plena timoris ainor.' But 1 humbly pray your 
lordships to exooiine with us, the eroundi of 
this your solicitude and fear; which grounds 
must Deeds be laid either upon the words of ih* 
Petition, ur the intention of the petitioners. 

Upon the words there is no possibility to lay 
them, for tbciein is no mention made of the 
So vf reign Power; and were tlie word* doubtful, 
as tlius, VYe pray the like things be not don* 
hereafter, uoder pretext uf your majosty's so. 
lereifn ^wtr ; jat ia respect of the prote»^ 



Goo;;lc 



11T] STATE tSlALS, 3Cii.mi!s!. ieflS.-^£tSer9</''^^^^- ' [A* 



Uipret^ini;, 



and subscqne 



ID the PeCiQUB, lach doobthl word* 
nublj to bt incerpreled mlj of nieh lomei;!) 
fomi (S wn^ applicable to the coms wbtnrin it 
m eieciscd ; aad of sucb wvereitn power as 
ibnnM b« juKl; practiMd. BoE there nre no 
ad doubtfol wordi, and (facrefereh follaweth, 
llat jour Inrdibius lear and solicitude must be 

Cdrd upon tneiatcntioTi of tlie p«utiaiieri. 
joar lonlibips will know, tliat the' house 
vfcouitions i> not ignorant, that in a lession 
(fniiiMDcot, ifaongh k contiane so manj 
VMS, isthn bath done days, nt there is oo- 
Iking prim ct mnfn-isf, but all Ihings are held 
md lokeit M done &t one time. ir»o, wbac a 
«nn{e collection wu this, that atthesaine 
nm: theboase of cmnmons iboaM oblige I hem- 
drrt, bv a feaffol abjuration, to aisiit and 
defend sll privileges and prerogatives belonging 
ulle kingj and at ibeaanic time by ■ PetitioD 
[nuiioialT courejed) endeavoar or intend lo 
^mt and deprne the king of some pren>- 
ptira belonging to his cronn i If therefore 
■aril far and solicitude can neitber be srounded 
ln» the wardi of the fetitron, nor inlciiiion 
MttiE pctitjimen, I hambly prayjoar lordshipt 
« Itj tfaem aside. Aa ne do belien (hat the 
fnpnition of this Addition ftont ]>our lordstn^s 
m not onl J exanaUe, but commendable, aa 
rxKceding ftotn yonr lore ; so now baTisg 
tord tiiir reasoiia, your loidshTps would real 
tUBfied, (fast oar ratiia.il to admit them into 
aor l>et^ii, proceedeth ftom the conacience of 
thint^rity attd aprithtneaa of our own hearts, 
ttat we in all tbia PetnioB have ao sixji end to 
ah«e or dinitiniah the king's Just prerogntiTe, 
Aad so much in reply to that rational part, 
oWebj taj lord-keeper laboared to peranade 
dKcntenainroent of tfara Addirion. 

Thit being done, it pteeaed the Houae of 
CtauDon* to iBstnict and finniiih me with cer- 
ain lUatoni, which 1 aball nae to yoor bnhbipa, 
tt procure yonr absolute conjoDctioit with us 
ia pRsenting this Petition ; which albeit I 
catiDot set forth according to their worth, fend 
iheiiMrnctionagiven me by the boose, yet, I 
Iti^ their own wei^t will ao press down into 
yoor iordabips c<;n3ciencn ■ndjadgrneMs, that 
•irtuwt farther aoople, jwa wifi chrerfiilly 
unDtnafE to accidnpanj this Petition with your 
tffit Dabts presance. 

A penaiuM. The fint Mgu menl 
Mtcotnrainded to move your hjnhhips, 
drmi from the coosideTatiDn of the persona, 
■bidi lie petitionan, the House of Commona ; 
ihaue, whose tevper, mtldnesa, and moderti- 
M ia ikia parliauaM haifa been such, aa we 
AmU he uuthMkftil and in^OM lo Aiaiighty 
Ood, if we abooht oM achiMwledga his gwd 
bad apoB m, o^on aw btoguea, ufon oar 
kMfUffracwreri.Dodavbt, by our lale solenM 
«d ^klic huniliuiai and uamra. 

Tbism 
■a (ke im piMCf it nwy b* 
■hat paaaion and- disleaaper rnmij aaaMb or i of 
tb hoote airived thitber, what boaama, wbat 
podieti M of cDmptiKtni ami lamenuibla 



rewithi 



griflTuieeB tbe most part bronght tfailber, aad 
those every day renewed by letter* and packets 
from all pana and quartera i you know the oM 
proverb, ' Uhi dolor ibi digitna, ubi amai ib^. 
' ocnlos :' it is hard to keep our fingers ftwa 
oAcn handhog the parts ill affected^ bnt yet 
our moderation overcame our passion, onr dis* 
creiion overcuneouraGfection, 

This moderation also will ibe better appear, 
if iu cbe second placa it be not (brgollen, how 
our ancestors and predeceasora carried them- 
geh«s ia puiliamenlt, when opon lighter pro- 
vocations, lets would not serva their tnrna, bill 
new severe commiasioua lo hear and determine 
offencea against their liberties, pithlic ecdeaiaa^ 
tical Gtffses, or eicoimnonica turns againat the 
authors or actors of such viulationa, actrtns' 
ttons, eon d em nations, eiecotious, bniushments. 
But ufaet have wo said all this pBrliament i W« 
only look forward, not bsckttard ; we desiW 
amendment hereaflar, no man's pnniihnient fat 
aogiitdone heretofore; nothing written by u> 
in blood, n»j, not one word apokeu against 
any man's person in (fispletsaie. llje Cauda- 
aion of our Petition ia, that we may be better 
intrcnied in time to com* i and doth not this 
motierate Petition deserv« yoitr lordships chfar- 
fhl conjoDctlan, ' ei coDgmo et condigno?' If 
a worm being trodden upon coald speak, ft 
worm would any. Tread upon me no more, I ' 
pray you ; Higher we rise nor,lowor»ecanaot 
descend ; and thus noch ne tfaiiik in modesty 
may vrril be apokeu in our own commendaiioil 
thence to move yom" lordships to loocltaafe m 
your noble company in ttaia Petition without 
sBrcbnpng it with this Addition. 

4 Itji^ore. OvT next argumentis drawn S 
ttmport, from the unaeasonableness of the time. 
liie Wiseman asitfa, ■ There is a time for all 
* things under ihtf sun ; Tempni iduir.' And i^ 
ill (he Wiseman's Judgmeur,.a word spoken ia 
its due time be preuous as gold and silver, 
then an unseaaoDable titne detracts as muck 
from the thing or word done or tpoken : w« 
hold (under yoar favonrs) that tbn time ia not 
seasonable now for this Addition. It is tnir. 
Chat of itself, sovereign' power is ti thing al- 
ways so sacred, tliat to handle it otherwise than 
tenderty, is a'kind of sacrilege, and to speak of 
it otherwise than reverently, is a kind of blaa- 
phemy. Bot every vulgar capacity is aot so 
afiectcd ; the most port of men, nay almost alt 
men, judge, and esteem all things, not accord-: 
ing to thejr own intrinsic virtue and quality, 
bat according lo their inmiedinte eSectv and 
operations, which tbe same things have upon ^ 
them. Hence it is, ihat Itefigion itself receiv^ 
•th more or Uas credit or approbation, as tbA 
teachers or professors are worse or belter ( 
■ yea, if Ood himself send averywet harvest or 
seed-lime, men are apt enough lo censure di- 
vine power. The sovereign power hiith not 
now, for the prneot, tbe ancient amiable as- 
pect; irt respect of some late sad inBnences: 
but by God's grace it wUl soon recover. 

To intermix with this Pctiiion any men- . 
thm of Sorereiga Power, reiut tU ttantibta. 



tlO] STATE TRIALS, SChauuI. ltm.~Itvctedii^ in ParHmait Ttbuiiig to [390 

trben angc^ men sbj, tovereiga power hath 
bean abuted, and the miHt niocierate wisti it 
bud not been so used ; ne hold it not seasona- 
ble, uuder jQUr Jordshipi correction, 

A loco. Our next argmneot is drawn i loco : 
we think the place ahere your lordships would 
have this Addition inserted, viz. in the Petition, 
no convenient or seatonuble pbce. Yimrlord- 
ahips nill easily believe, that thia Petition will 
run tlirough many hand*, every mun nilt be 
desirous to tee and to read what thrir knights 
itnd burgesses have done in parliiiment upon 
their complaints, what they have brougliChome 
for their live Subsidies : Jf, in perusing of this 
PetiliuD, they fall upon the tneotian of sovc' 
rttga power, they pre^ntly fall to ar^uini;, and 
reasoning, and descanting, what sovereign 
power is, wb«.l is tlie Utitude, whence the ori- 
ginal, and ubere the' bounds } mtb many such 
curious and captious quetlioDS ; by which 
coune,'5arereigu jioiver ii little advanced or 
' advantaged : for 1 have ever been of opinion, 
that it is then best with sovereign power, when 
it is bad in tncit veneration, not whCn it is 
proved by public hearings or examinations. 

Our last Argument is drawu from our duty 
•nd loyalty to his majesty, in consideration 
whereof, we are fearful at ibis time to take this 
Addition into our Petition, IihC we should do 
his majesty herein some disservice : with, your 
lordships, we make the L're;it council of the 
king and kingdom ; and though your lordships, 
baving the happiiie^ to be nt;ar his lusjesty, 
know other things better, yet certainly the 
state and condition of ihe scverat parts for 
wliich we serve, their dispositioiM and inclina- 
liiiii'i, their apprehensions, their (ears and jea- 
lousies, are tlt^t known unio as. And here 1 
Srny your lordsliips to give me leave to use the 
gnre culled lUlieenlia, tliat is, tp insinuate 
and intimate more than I mean l<) spcuk. Our 
chief and principal end in this parliament, is, 
to make up all rents and breaches between 
the king end tiis suljecL<, to draw tliem, and 
,knit them t(%etlicr, from that distance, whereof 
the world abroad takes too much notice, to 
work a perfect union and reconciliation. How 
improperly and unapt at this time this Addi- 
tion will be in respect of ibis end, we canuot 
but foresee, and therefore shun it ; and do re- 
aotte, that it is neither agreeable to the per- 
•ons of such counsellors, of whom we are, nor 
answerable to that loie and duly which we 
owe 10 hb majesty, to hoiatd an end of such 
DDspeokable cunsequenoe, upon the admit- 
tance of this Addition into our Petition, where- 
of, as me hnve shewed, ibe omission at thin 
time can by no means harm llie king's prero- 
Cativr, the expression may produce mani^ld 
inconveniences. And theretore, since the ad- 
mittance of yoar lordships Addition into our 
Petition is Incoherent .and incompatible with 
tlw body of ike same ; since there is no oeces- 
tary use of it for the saving of the kin^s Pre- 
native; since the moderation of our Petition 
deserreth your lordships chcarful conjunction 
x^ at; fince tbii Addition is unseasonable 



(or the time, and ioconvenitnt in respect of (ba 
place where your tordship* would have it in- 
srcted ; and lastly, may prove a disservice to 
his mi^esty ; J conclude with a roust alTec- 
Cionate prayer to your lordships, to jpin with 
the bouse ot comniona, in preseuliiie this Peti- 
tion unto biv sacred majesty, as it is, without 
this Addition. 

Monday, Q6tli of May, the Lord Keeper mado 
this Speech nt B Conference. 

Gentlemen i Ye that are knights, citizen* 
and burgesses of the house of coiumuus, I have 
many times this parliament, by command from 
my lords, declared the great zeal and affection 
which my lards have to maintain and nourisli 
the Kuud concurrance and correspondency 
whicli liath hitherto continued betweeu both 
houses, that there might be a happy issue in 
this great business,. for the cotumon good of 
ihe king and kiugdoiu. Now thM which Z 
have lo say this day from my lords, is, to let 
you know, this fair proceeding is not a profes- 
sion of words only, but really and Indenl con- 
cerning the Petition, which bath been long in 
agitation, as the weight of tlie cause required. 
Since the last conference, my lords have taken 
it into their serious and Instant consideration, 
and at Ieng;th ore fallen upon a resolution, 
Hbich I UQ to acquaint you with. 

Tl« lords have unanimously agreed with ^ou 
in omnibuM, and have^nted, tliai tliey will join 
ivith you in your Petition, with the only alter- 
ation of the word ' maaus ' to be put instead 
oftjieword 'pretext;' and for the word 'uo- 
' lawful '. to be put out, and in place thereof 
to add ■ not warrantable by the laws and sta- 
' tutes of the realm.' Which two alieratiimt 
yourselves consented unto. So that coucctn- 
mg lliis business diere reniains nuthiug dow, 
but tlist having the Petition in ^ur hands, ye 
VI ill, if ye have not Glreadv,vo(eitBs they have 
done, and so prepare it for bis majesty ; and 
my lords will take order, that the king be 
moved for a speedy access to present the sama 
to Ills majesty. 

And, after some pause, be said. There rests 
one (bins whioh my lords have commanded me 
to add. That in re^rd this Pitition touchetb 
upon certain charges raised by tlie lords tlente- 
nanls, and oilier persoiis, many times fur good 
uio, for ib« senice and safety of the kingdom ;. 
(hat ye take it into your care and considera- 
tion, 011(1 to provide a law for assessing of suf^ 
chafes, as die occasion of the time ^liall re- 

The Lords and Commons being thus happily 
accorded, the Petition, with the aAiresaid 
Amendments, was read in the bouse two seve- 
ral times togelJier : then it was voted upon tlw 
question, and that it should he ingmssed, and 
read the third time, and the house to sit in tbft 
nfti'moon till it was ioi>rossed, and read, and 
oriien.'d to be presented to the king ; to whicb 
thete was nut a negative rote. 

Wednesday, %a Uay, tlie Lord* and Cuni- 



«) 



STATE TRIAIS, 3 Charles L 

of 



mils liad a Conference about the 
delirery of ihe Petilion ; and sir Ed. Coke re- 
portid, tJiai ilicir lordahips nvrc agmd, Tliac 
M addibofl or prefnce lie used to the king, bat 
dat llie Petrlioa be preferred lo his mtijesty 
Lt CDmmsnd of the lords aod commons ; and 
hs miJMiy be de&ired, that to content his ffo- 
jU, he woold be ple.i«cd to give his gracioui 
Aiuwer in tiiil parliaaieiit. 

Mondaj, 9d June, the King came to the 
FirllameDl, and spake thus iu brief to both 

GeotktDen ; I am come hither to perform 
■jdn^; 1 think no man can think it luug, 
MKc 1 have -not taken so manj dajs in an- 
taering tlie Fetltioa, at jou spent weeks in 
AanuBg it : -and I Bin come hitherto shew jou, 
llal as well in foniul [hiogs dt in essential, 1 
lieure to give jou a» much cooteal u in me 

its. 

After this, the Lord Keeper spake as Ibl- 
Imeifa: 

Mj lords, and jou the knights, citizein, and 
kiTfeaMi of the Iwuse of cotDmans, bis majeU; 
bitb commanded me to laj onto you, tliat he 
likes il in pM>d part, that in consideiation of 
Mtliif jour onn LU^erties, jrou hare generatlj 
TMfessed in both booae)', that jon have no in- 
MliaD to le*s«n or diiDinish hii maieitj's pre- 
nptirci whereia a« yon have cleared your 
iWB mtentipna, so now hit majesty come* to 
dnr Ha, aod to subscribe a firm leaKue with 
' kit people, which it ever likety to be most con- 
uanl and perpetual, when the conditions arc 
tqoil, and known to he soi these cannot bo 
ii a more happj eUate, than when your liber- 
lics shall be an oraameot and a ttrenglh to his 
majesty's Prerogative, and hb Preroealive a de- 
feoce of your liberties ; in thii iiia majesty 
doubts not, but both he and you shall take a 
■olual comfort hereafter; and, for bis part, 
it a resolved to give an etample, in the using 
•f hii power fbi tha preservation of your Ij- 
ketties, that hereafter ve sball have no cause 
tommpLun. This is the sum of that nbich I 
w to lay to you from tiis majesty ; and that 
*1iich farther remains, is, that you here read 
JiiBt own Petition, and his majesty's gracious 

TbE PeTITIOH of RlOHT. 

Ike PniTiotf eihibitad lo his majesty by the 
lords spiritual and temporal, and commons 



To [he King's most excellent majeaty. 
I. "HomUy >bew unto our sorermgit lord 
b king, (lie lords spiritual and InnpoTal, and 

ommans in parliament assembled, that where- 
ai ii it declared and ^octed by a statate made 
isthe tiaie of the re^ of king Edward l,coin- 
BKily called, ' Etatutum de tollagio non cun- 
' UMndo *,' that no ullage or aid shall be lard 



* M Bdw, 1. 



or levied, by the king or his heirs, in this realm, 
without the good will and as&ent of the arch" 
bishops, bishops, earls, bnrnns, knights, bur- 
geues, nod other the freemen of the coninion- 
ally of this realm; and bv flotbonty of parlia- 
ment holden in the SSth year of tLe reign 
orki(]|£d(vard 3*, it is declared and enacted, 
Tbut &om thenceforth no person shall be com- 
pelled to make any Loans to tlie king ogaiDst 
Ills will, because such Loaus were against rea- 
son, and the franchise of the land; and by 
other flaws of this realm it is provided, that 
none should he charged by any charge or im- 
position, called a Benevolence, nor by such like 
charge; by which the statutes before-men- 
tioned, and other the good laws and statute* 
of this realm, your subjects have inhcrilcd this 
freedom, thut they should not Ic compelled lo 
contribute to anv tai, fallage, aid, or other lite 
charge, not set Dy common consent In parlia- 

If. " Yet retertheUss, of late, divers Com- 
miisions, directed to sundry cotnniissioiiers in 
several counties, with instructions, have issued ; 
by means whereof your people have been in 
dire'ra places assem'bled, and required to lend 
certain sums of money unto, your majesty, Bud 
many of them, upon their refusal so to do, hav* 
had an oath administered unto them, nut wor- 
rantahte by the laws or statutes of diis realm, 
and hnve been constrained to become bound to 
make appearance, anil give attendance before 
your privy-council, nod in other places; and 
others of them have been therefiire impri»oned, 
confined, and sundry other ways molested and 
disquieted. And divers other charjies have 
have been laid and levied upon your people in 
several counties, by lords lieutenants, deputy 
lieutenants, commissioners tor musters, justice* 
of peace, and others, by command and direc- 
tion from your majesty, or your privy-council, 
against the laws and free cuitoms of this realm, 

III. " And whereas also by the !>tatute call- 
ed!, 'The Great Charter ot the Liherties of 
' England,' it is declared and enacted, That 
no Freeman may be talicn or imprisoned or be 
disseised of his freehold or liberties, or hii free 
customs, or be outlawed or euled, or in any 
manner destroyed, but by the lawfiil judgment 
of hii peers, or by the law of the land. 

IV. " And in the S8ih year of the reign of 
kiag Edward S §, it was declared and enacted 
by authority of parliament, "That no mno, of 
what estate or condition he be, should be put 
out of his land or tenements, nor taken, nor uu- 
prisnned, nor disherited, nor put to death, iviih- ' 
out being brought to ansner by dne process of 

V. " Nevertheless, against the tenor of the 
said statutes II, and other the good laws and 
statutes of your realm, to that end provided. 



• SS Edw. 3, Rot. Pari. 

+ 1 Edw. 3, 6. 11 R. a, 9. 1 B. 3, (. 

t 9 Hen. 3, 29. & as Edw. 3, 3. 

II ST Edw. 3, 18. 38 £dw. S,9.ii Edvr: 3^ 



ttS] ffTATBTBlAlS, 3 Cb*UX1 I. l62i.—P,'octediii§i in Parlimnat noting le [234 



dnen of ;o*ir tutyccti IwTe of late beas iio- 
briMced, vilhout any Ckuae iliewed ; and irbea 
~ Lhcir delivemnce tliey were braiqht btfott 



rf ihould order,' and tbeir Lecpen com- 
JDanded to certify the ctuisn of their detainer ; 
bo cause was certified, but that thej were de- 
tained by your mtyesty i ipecisl counuuid, tig- 
difird by the lords of your privy-council, aad 
yet were returued back to aeveral pritoot, witli- 
<nit being charged with any thing to ivluch tbey 
might make answer according to the law. 

VI. " And Hhereaiof lau.great companisi 
of Soldiers and Muiuen have been diapeiMd 
itilo direfs countiea of the realm, and the io' 
babitants, against their wills, have beeo coni' 
pdled to rec^re them into their Itouse*, and 
there la sufier tbem to sojourn Hgaintt thelans 
and cuitomi of thtg lealm, aim to the gient 
grievance and vexalion of the people. 

VII. " And wbereas, alio, by aatboritr of 
parliament, iu the 25th year of the rdga of king 
Edw. 8, it l9 declared and enacted, That no 



laws and siatuto of this reabu : and by the laid 
Great Chuter, aud other the Uwi and statuie* 
of thil your realm, no man oegbt to be adjudg- 
ed to death, but by the laws astabliahed in this 
your realio, either by the customi of the same 
realm, or bj acU of parliament: u^, whereat 
' BO offender of what kind aoevet is exempted 
from the proceeding!! to be used, and punish- 
ment! to be inflicted by the laws and statute) 
of this your realrp : nevertheless, of late, dicers 
commission), under your m^esty's great seat, 
have issued forth, by which, cenain perwos 
have been assigned and appoioied conuius- 
simiers with power and authority to proceed, 
wiibiu the land, according to the justice of 
martial Inw, against sucb soldieii aad mariners, 
or other dissolula persona joiniog with tbem, 
H should commit any murder, robbery, talon j, 
mutiny, or other outrage or tnudeoieaoor what- 
soever; aud by such summary couruandoid«ii 
•s is HgTeenbiB to martial law, and is used in 
vmiea in dme of war, to proceed to (he trial 
and candenmation of such olender*, and them 
e to be ezecnled and put to death, oc- 



ing to the martial lai 
VIII. " By pretext whereof some ofyi 
jesty'i Bubjects have been, by tome of the said 



commissioners, put to death ; when and where, 
if by the laws and statutes of the land they bad 
deserved death, by the tame laws and statutes 
nlsQ thev might and by no other ought to have 
been adjudged and executed. 

IX. " And, «lio, nindry grievous offenders 
by colour thertof, claiming an eienption, have 
escaped the punishment due to them by the 
laws and statutes of this your realm, by reason 
that divers of your ofBi^n and miaitlen of 
iostice have unjustly refused, or'tbrbom to pro- 
ceed against snch offenders, according lu the 
lame law* and atatntes, nuon pretence that the 
tftid ofieaden wcra punistwble ooly bj nwti*! 



Uw, and by autLority of such o 
aforesaid ; which commission^ and all othen ' 
of liLe natura, are wlwlly and directly contrary 
to the said laws and statutes of this yuur realm. 

X. " They do therefore humbly pray your 
nustescellentiaajesty,* 1. That no man here- 
afttr be compeUed to make or yield any gift, loan, 
benevolence, tax, or sucb lite charge, without 
common cMueot by act of pariiament ; |. and 
that none Ue called to make answer, or take 
sucb oath, or to ^le attendance, or be ood- 
fiiied, or otherwise molested or diwprieted oo»- 
ceming the same, or for refusal thereof; 3. and 
that no freeman in any such iaanaer as is be- 
fore raenti'ined, be imprisoDed or deteined. 

XI. " All which ibey most humbly pray of 
yonr most excellent majesty, as their tight* and 
liberties, accoT^ing to the laws and Atfntct of 
this realm ; and that yonr majesty wootd atao 
vouchssfi! to declare, that the awards, doifi)^ 
and proceedings, to the prejudice of yonr 
people, in any of the premtMes, shBll bM b* 
drawn herealler into con&equeoce or exanple : 
and tbnt yourmuealy woaldbealso graoiooaly 
pleased, for the forther comfort and safety «" 
your people, to declare your royal will and 
pleasure, that i» the thinn aforesaid, all your 
oAcen and ministers shall terva yov, aoeiMil- 
iog to the laws and sututM of toit realm, a« 
tl«y tender thn honour of your mqesty, aod 
the prosperity of this kingdom." [See Sutaut 
at iMg^ 3, 4 Car. 1.] 

The EiRff't Absweb. 

Which Petition bemg read die 9d of juIM, 
the king*s Antwer was thus delivered by ibe 
lord keeper : 

" The king willclh that right be dune acoird- 
ing to the laws and customs of the realm; iDd 
that the statutes be put in due execution, that 
bis subjects may have no cause to complain of 
any wrong or oppressions, contrary to their just 
Rights and Liberties : to the preservation wherfr. 
of, he holds himself in conscieuce as well 
obliged, as of bis prerogative.* 

On Tuesilay, June 3, the king's Answer nag 
read in (he House of Commons, and seemed 
not fnll enoDgh, in regard of so much eipenca 
of time and labour, as had been employed in 
contrimg tbe Petition. 

June 3, A Message was bfooght from tlie 
King by the Speaker, 

" Tliat his majesty having, apon the Petitioii 
exhibited by both Iwuies, given an Answer fiiU 
of justice and grace, for which we and our pos- 
terity hare jnst cattse to bless his majaty, ifim 
now time to grow to a conclusion of the ses- 
sion ; ajid tharefiirc hi* ^enty thi^s fit to let 
you know, thu at be doth resolve to abide by 
that Aiuwei, without further cliaitgi or altera- 
tion, so lie nill royally and renlly perform uoto 
you what he bath thereby promised: and fur- 
ther, that he resolves to end thii session upas 
Wedaesdaythellthoftliismuath. Aodibem- 
foie wishetb, that the bouse will itriously at> 



* SftEdw;.!, 6. 



m] 



STATE TRIALS, S Ciiablbs I. ] 028 the Liberty qfl/ie Sv^ect. 



(end those buiinasea, Khicli idbj best bring tb« 
KuiDD lu II bippj coacltuioQ, without eoccr- 
[lining new matten ; and «o )iusbRi]d tbe time, 
ttiu bij niajiatj Biaj witti the mare coiufort 
biing lU tpccditj together ogftiii : mt njiich 
tiiBe, if there be aiij further grievance* not 
CDoUJned, or npressed in tbe Petition^ they 
mty be more tnaturelv conaideieii (hiD tbe 
blue Hill no ir permit." 

Atotber Message wa« brought Irom hit Ma- 
jestj by the Speaker, Tbunday 5tlt of June. 
" Uu Diajeity wished them to remember the 
Uesnje he iut teat (hem, by which lie set a 
^y Ibr the end of tbit lesaion, end he com' 
Muded tJie Speaker to let them kaow, that he 
■ill ceitaialy hohl that day prefixed without •)- 
ItntioD; and becauM Uuit cannot be, if the 
bsDse entertain more biuiness of length, he re- 
fute) them, that they fenter not into, or pro- 
cted iriib any new business, which may ipend 
pcater lime, nr which may lay any scandal or 
Mperaion upon the ttale-goTernmeat or minia- 
Urs thereof," 

Sir Jtofrcrt Pliiiipi, upon ibia occasion, ei- 
pniMd liinuclf thus: I perceive, that towards 
Gnd, and towards man, there is little hope, 
sfier our liumble aod careful endeavours, 
seeing out titis are many aad so great : I con- 
lidn my own infirmitiei, and if ever my pas- 
Kons were wrought upon, ibu now this met- 
■•geitin me up cspeciRlIy; when I rempiaber 
*ith what moderatioD we have proceeded, 1 
cuDOt but ivouder lu see the miserable straight 
Mare now in; what have we not done, to 
bue merited? Former times bare given wounds 



u of all hut misery 



cmild; and what is the re 
ud desalation ? What i 
htKierred his majesty, and to have done that 
■bith would liave made him greut and glori- 
wal If this be a fault, then we are nil crimi- 
mui. What ihall wc do, since our humble 
porposes are thus prevented, which were not to 
n>e laid any aspersinn on the government, 
■ImX it tended to uo other end, but lo give his 
iMtesly true information of liis and our dan- 
t"' And to tliis we are enforced out of a ne- 
tOiiiy of duty to iLe king, nur country, and to 
pouerity ; hut we being »top^d, anil stopped 
1 inch manner, ai we are enjoiiied, so we must 
>uw leave to be a council, I hear this with 
ibu grief, aa tlia saddest message ol' the great- 
ni liHt in tbe world. But let us still be wise, 
bcbamhle: let us make a fair declaratiou to 
tbe kin;. 

Sir JoAn Elliot. Our sins are so eiceeding 
peat, tiiat uikleas we speedily relnm lo Gud, 
Ijod will remove biinself further from us : 
ye know witli what aOeciion and integrity 
,■< bive procaedeit hitherto, to have gained hii 
tajeii^'s heut, and Out of a twcesiity ef our 
■bity, were brought to tliat course no were in i 
t (ktubi, a miircpteientaijon to im majesty 
hub drawn tlus mark of his displeasure i^d 
o^ Itdtterva ia the Messnge, umongit other 
»»i .particulars, it is conct^iv^(l, that iie were 

you III. 



■bout to lay some aspersions on tlie govern- 
ment ; give me leave to protest, that so clear 
were our intentions, that we desire only to vin- 
dicate liiosr dishoniiurs to our king and coun- 
try, &c. It is Mid ulao, as if we cost some as- 
EeiVDns ou hii mnjesly's ministers ; 1 am cou~ 
dent DO minister, bon dear soever, con — 
Here the Speaker started up from the seat 
of the chnir, apprehending sir John Elliot in- 
tended to fall upon the Dnke,Bnd some of the 
ministers of state ; and said, There is a com- 
mand laid upon me, that I must command you 
hot to proceed, — Whereupon sir John Elliot 

Sir Ihidley Diggi. I am as much grieved 
as ever. Must we not proceed ? Let us sit in 
silence, we are miserable, we know not what 
to do. 

Hereupon there was a ^tence in the house 
for a while, which was broken by sir Nathaniel 
Rich, in these words : 

air Naitanul Rieh. We mutt now speak 
or for ever hold am- peace ; for us to be silent 
wb<^ king and kingdom are in this calamity, 
is not 6t. The question is, Whether we shall 
secure ourselves by silence, yea or no? 1 know 
it is more for our own secunty, but it is not for 
the sectirity of those for whom we serve ; let 
us think oii them: some ii 



and shall we now sit still anil do nothing, 
and so be scattered P Let us go together to 
the lords, and shew our dangers, that we maj 
then go to the king logethn. 

Others said, that the Speech lately spokan 
by sir John EUiot had given offence (aa tbej 
feared) to his m^esiy. 

Whereuponthe House declared, 'That every 
' member of tlie bniwr is free from any undlk- 
' tifiil Speech, from tbe beginning uf the parlio- 

* meni to tliat day ;' and ordered, ' I'hai the 
' house be turned into a Committee to consider 
' what is St to be done tor tbe safety of the 

* kingdom ; and that uo man go out upon paia 
' of going to the Tower.' But befbre ths 
Speaker ufl tbe chair, he dedred leave to go 
forth; and the bouse ordered that he mav go 
forth, if he please. And the house was fierfr- 
opon turned into a Grand Committee : Mr. . 
Whitby in ihe chair. 

Mr. Wande^ard. I am full of grief as others, 
let us recollect our English hearts, and not sit 
still, but do our duties: two ways are pro- 
pounded, to go lo tfas lords, or to the king; I 
think it is fit we go to the king, for (bis doth 
concern our liberties, and let us not Tenr to 
make a Remonstrance of our Rights; we are 
bis couiisetlors. Tliere are seme men which 
call evil good, and good evil, and bitter sweet ; 
justice is now called popularity and (action. 

Sir Edxarii Coke: We Jiave dealt with that 
duty and moderation that never was the like, 
rtbiu lie itatilibus, after such a violatiuu of lbs 
Liberties of the Subject; let us lake this to 
heart. In 50 Ed. 3, were tbry then in doubt 



227] STATE TRIALS, SChaussI. IG2S, 

ia pacltammt to name men thtt misled the 
kiiigf Tliev Kccused John de Gnnnt, the king'* 
son, anil lord Latimer, and lord Nevil, for mis- 

fdviiringtlie king, Hnd tbej went to the Tower 
>r it ; now when there is such h downW of the 
state, slinll we hold our tonnes } How shall 
we answer our dutim lo God Mnd men? 7 H. 4, 
Fnrl. Rot. n. 31, 6c 33, 11 H. 4, a, IC, there 
the Council we compluined of, and are remoT' 
ed from the kin( ; they mewed up the king, and 
dinuadcd him from [he comnou good ; and 
wh' ' " ' " 



:iy are wc now retired from thM nay we 
in f Whj maj we not name those tliat are toe 
cause ofall our evils i In 4 H. 3, & 37 £. 3, 
& 13 R. 3, the parliament moderated the king'i 
prerogative; and nothing grows to abuse, hut 
thii house hath power to treat of it. What 
Bball we do? Let us palliste no longer; if we 
do, God will not prosper us. I think the duke 
afBuckiRghainis the cRQse ofall our miseries; 
and (ill the kio); be informed thereof, we tball 
never eo out with honour, or sit with houour 
here: t^at man is the grievance of grievances : 
let us set down the causes of nil our disasters, 
and nil will reflect upon him. As For goinj; to 
the lords, that is not via regia ; our liberties are 
now impeached, we are concerned; it is not 
viit r^^i", the lords are not participant with our 
tibcrtirs. 

Mr. Sclden advised. That a Declarotion be 
drawn uuder four heads : 1. To express the 
house'ii dutifiil carriage towards bis majtsty. 3. 
To tender their Liberties that are lioiated. S. 
To present what the purpose of the house was 
to have dealt in. 4. That that great peisnn, 
vji. the Duke, fearing himself to be questioned, 
,<tid interpose and cause (his distracdon. All 
this time, (said he) we have cast a mantle on 
what WHS done lost parliament; but now being 
driven again to h>nk on tlint man, let us pro- 
ceed, wiih (hat which was then well begun, and 
let die charge be renewed that was Init parlia- 
ment agmngt hiin, to which he made an answer, 
but the particulars were sufficient, that we 
Blight demand judgmiot on that answet only. 

In conclusion, tliQ bonte agreed upon several 
Heads for a Remonjtmoce. fiut the Spenker, 
who after be had lenve to go forth, wentpri. 
t thi* Messi^e! 
J communds for the pre- 
t tliey adjourn the house till [o-morrow 
rnornin^ and that all ccoiniittees cease in the 
JDCan tunc." — And the bouse was accordinglj' 
adjourned. 

At the same Ume the king sent for the Lord- 
Keeper to attend iiim presently; the bouse of 
lords was adjourned ud libitum. The Lord- 
Keeper being returned, and the house resumed, 
his kmlfihip si^niGed his majesty's desire, ihat 
the house and all committees b« adjouraed till 
to-morrow morning, 

i'riday, 6th of June, Mr, Speaker brought 
another Message from the King, and said : — 
la my ternce to this liouse I have had many 
undeserved favours front yoD, whidi I shall 
en!r with all humbleness acknowledge, but 



— PncKdmsi in ParliaiHaa rebuiKg to [39S 

none can be greater thai) that cetthnony of 
your ronlidence yesterday shewed nnto me, 
whereby I hope I have dane nothing, or mada 
any representation to his majesty, b.ut what i$ 
Ibr the honour and service of this house; and t 
will have my tongue cleave to my moutb, b^ 
fnre I will speak to tbe disadvantage of any 
tnemher thereof: I have now a Message to de- 

Whereiis his majesty understanding, that 
you did conceive his last Message to restrvn 
you in your jnst privileges, these are to declare 
his intentions, That he had no meaning of h»r- 
ring yon from what hath been your nght, hut 
oni^ to avoid all scandals on his council end 
actions past, and that his ministen might not 
be, nor himself, under ibeir names, tuied for 
their counsel unto his innjeity, and that no such 
particulars should be taken in band, as would 
ask a lunger time of consideration than what 
he bath already prefixed, and still resolves t* 
hold ; that lo, for (his time, Christendom might 
take notice of a sweet parting between him and 
his people.: which if it fall out, his mnjeity will 
Dot be long from another meetiog, wbcu such 
grievances, if there be any, at their leisure and 
convenience may be considered." 

Mr. Speatcr pnieeerled ; 
I will observe somewhat oot of this Message; 
ye may observe a great inclination in his ma- 
jesty to meet in (his hous*. 1 was bold yes- 
terday to take notice of that liberty ye gan 
me to go to his mnjesty ; I know there are 
none here but did imagine whither I went, 
and hut that I knew you were desirous and 
content (hat I should I'eMve you, I would not 
hm-e desired it: give me leave to say. This 
Message bars you not of your right in mat- 
ter, nay, not in mumer; but it rcacheth to 
his eounseli past, end fur giving him couiisel 
in those things whicti he commanded. 
The House of Lords likewise received this Met- 
sage hy tlie Lord-Keeper, 
" My Lords, his majesty takes nntica, tu your 
great advantage, of the proceedings of thir 
h[>use upon the hearing ot his majesty's Mes- 
sage yesterday; he accounts it a tiiir respect^ 
that yc would neitlier agree on any committee, 
or send any Message to bis maJMiv, thoi^h it 
were in your own hearts, but yield yonrseUci 
to Ills majesty's Messiige, and de^ your owu 
resolutioiis till you meet f^in at tbe lime ap- 
pointed by his majesty. Yei his majesty takes 
It in extreme good part to hear what was in 
your lieart, and especially that you were so sen- 
sible of the inconvenience (bat might eosna 
upon thehreaeb of this parliament : which if it 
had happened or shall hereafter happen, his 
majesty asiures himself, that' he shall stand 
clear ijefore God and men of the occasion. — 
But his majesty saith. Ye bad just cause to b« 
sensible of tbe danger of comiderbg how dio 
state of Christendom now stands in respect of 
■he multitude and streugih of oCir enemies, and 
weskness on our port. All which hia majesty- 
knows very exactly, and in tcspoct thereof 



S9] 



STATE TRIALS, 3 Charlu I. 1628.— the Liberty t^ike SiAject. [330 

ipoQ him, but out of a at- 



oRcd thii p«rliameqt; the particiikn his mm- 
jcttj boUi it oeedlew to recite, e»p«ciatl]r lo 
joui lonl&hipt, since chej are appareot lo all 
wan neiiW will it be DeedlUl Co rtiteratu 
tlKDi to hii DMJesij, whose cares are laoii at- 
UBtiie apon ibem, and the beit rernedj ihat 
OB bf Ibooghc on therein, i*, if bis Bubjects do 
ikir paiti. Therefore bii nMJest^ ^vea ;ou 
innj thaoki, and bid me tell viiu, ihat Dothing 
luthbeeD niare acceptable to bim aU (he time 
of tbit paHiameot, tnmn thia dutiful and dii- 
atct cairiige of ifoar lordahipi, which be pro- 
lauah haih been a cMeTinotiTe to bis mnjestj, 
'"■"'"' ) thai were not fur 



Sir Saierl Phii^ aBsumed the debate, upon 
lie Jdcaage delivered b; che Speuler, and 
aid i I rite 141 with a disposition, somewhat in 
Doic bopc of comfort tliun jresterda; ; jet, iu 
npid of tiie uncertain^ of conoseti, I iltall 
Kcbaoge much. In tbo first place, I must 
it bold mibout flatten ag, a thiug oot incident 
10 Die, to tell you Ktr. Spealicr, jou have ant 
mIj St all time* diichargad the duty of agnod 
SpEak«r, but of a guod man ; for nblch I ren- 
iajaa monj thanks. — Another Tcspcct touch' 
0% lus majeslj's Aofwer to our Petiiion ; first, 
if tlwt answer fall out to be shart, 1 Iree his 
anjeuT, and I believe hit resolution was to give 
lut wMch we all eiipccted : bat in that, as in 
■dttn, we have suflered, bj reaioa of inter- 
NKd peraoua between his majestj| and ui. 
But this daj is bj intervenient accidents di- 
nned iixnn that, but so, as in time we go to 
Usawjestj; therefore let as remove those jea- 
Iwaies in hit luajeetj of our proceeding, that 
tiume men ovei^rown have been mrerepre- 
med. We have proceeded with temper, io 
onideiKa of hismajettv'i goodness to uB,aBd 
nr fidelity lo him i and if anj havecoostrued, 
ihu what we have done hath been out of fenr, 
Ittbin toow we came hither freemea, and will 
' ever teulve to endure the worst ; and they are 
feor meo that make tuch iaterpreiations of 
ptriiainent*. In this way aod method we pn>- 
tttded, and if any thing. GUI out unhappily, it 
a Dot kioE Charles that advised lumscir, hut 
^ Charles misadviied by others, and misled 
bf misordered counsel ; it becontesus tu cod- 
uff what we were doing, and now to advise 
^t is fit to be dune. We were tnldogcon- 
HderalioD of the itate of the kingdom, and to 
Enaent to bis majesty the danger be and we 
ucii, if^ince any man batb been named iu 
FaniaiUr, ^though I lore to apeak of mv bet- 
ten Kith humility) let him thank himself and 
b counsels, but tboee necestaiy jealousies give 
■ occanon to name him; I assure mywlfwe 
■Ul proceed with temper, and give his majestv 
wkfsctioo, if ne proceed in that way. Hit 
*^nty's message is now explanatory in point 
of our libertiet, that he intends not to bar ut of 
Hr tigba, and that be would miC have any aft~ 
|(nioi) out on the counsels past; let us pre- 
mt to hit majesty tliortly and ^thfuUy, and 
mu* ourinientiODs, that we intend not ' 



turrouoded with, and to present lo him the af- 
fairs at home and abroad, and ti> desire bis ma- 
jeiity, that no interposition or misinformation 
"men in fault may prevail, hut to expect the 
luc that shall be fuA of duty and loyUty. 
The Commous sent a Mewage to the Lords, 
that tbey would join in an bumble request lo 
the king, that a clear and satisfactory Answer 
be given by his majesty in full parliament Co the . 
" 'ition of Hight; whereuuto the lords did 

Jnne T, the King came to the Lords House, 
and the house of commons nereaeot for. And 
the Lord~Keeper presented the humble Pelittoa 
of both heusee, and said, 

" May it please your most excellent majesty, 
the lords spiritual and temporal, and common* ■ 
in parliament assembled, taking inloconsident- 
tion that the good intelligence between your 
majesty and your people dolb much deiiend 
upon your majesty's Answer uoto their Petitioa 
of Right .formerly presented; nlth unanimous 
[nt do now become most humble suitora 
your moJMty, that you would be grnci- 
ouily pleasid to give a clear and satisSictory 
Answer thereunto in full parliaineni." 
Wbtreimta the King replied. 
The Aniwer I have already given you was 
made with to good deliberation, and approved 
by the judnnents of >o many wise men, that I 
could not nave imagined but it should have 
given you fiill salistactioo; but to avoid all (un- 
biguous interpretations, and to shew you that 
tbere is no doubleness in my meaning, I am 
willing to pleas* you as well in words as in sub- 
stance ; read your Petition, and you shall havtt 
an Aoiwer that I am sure will pleate you." 

The Petition was read, and this Answer wu 
returaed : 

Soil droit fait eome il at dairiperUPttitioH. 
C.H. 

"Thitlai 
notnoretbai _ , , 

for the meaniu| of that WM to confirm all yotir 
Liberties, knowmg, according to your own prft< 
testationt, that you neitber mean nor can buit 
myPrerocative. And lasture yon, my maxim 
ia, that uie people's Liberties strengthen tlw 
kiac's Prerogative, and the king's Prerogaove if 
to defend the people's Liberties. You tee how 
ready I have shewed myself to satisfy your <te- 
mandi, so that I have done my part; where- 
fore, if this pariiament have nota happy coll- 
duuou, the sin it yours, I am free from it." 

Whereupon the Commons returned to their 
own house with unspeakable joy, and resolved 
10 to proceed as tu ei press their thankfulnesa. 

t7 



The King's Message to the Lower Hoose 

sir Humfrey May, 10th of June 16^. 

His majesty is welt pleased tliat your Peti' 

tion of lUght, and bis Answer, be not only re- 



331] STATE TRIALS, 3 Cbahles I. i6W.—Prwxedmgi in Parlia»mt, Ifc. ['iSS 



carded in both houwa ofparliuneut, but also in 
■11 the courts of Wettnunuer; and rhat hii 
pleasure is, it be put in print for his honour, 
and the content aud the aatisfaction of his p«o- 

Ele, and that you proceed cbeerfulljr to settle 
usineises fiir the ^ood and reforniBiioii uf the 
comuiniiweattli. 

June 26. The Speaker being sent for to the 
king at Whitehall, came not into the house till 
about nine o'clock. And after praj'ers, the Rc- 
monstrance concerning Tuiinage and Poundage 
being iiigrossed, wa.! a reading in the house; 
and while it was a reading, ihe king sent for the 
Speaker and (lie ivhole house, and the kiog 
made a Speech as followetfa : 

" It may seem strange, that I canle so sud- 
denly to end this session ; before I give mj 
assent (o the bills. I will tell Jou the cause, 
'though I must avow, that I owe the xccount of 
mj actions tq God atone. It is known toever^ 
one, that a while ago the hoiis« of commons 
gave me a lUinotistruacej how ncceptnhk, 
every man may judge ; and for the merit 
of it, I will not call that in quesllon, for I am 
Bure no wi^e niiin Cin justify il. — Now, since I 
am truly informed that a second Remonstrance 
is preparing for me to take awnj the profit of 
my Tuniiage attd Poundage, one of the chief 
maintenances of tn; crown, by alledging I have 
given awa;r '"J "jcht thereto b^ my Answer to 
your Petition : — This is so prejudicial unto me, 
that I am forced to end this session some few 
hours before I meant, being not wiliine to re- 
ceive any more Reragnstranceg, to which I 
must give n hirsb Answer. -Anil since I see, 
that even the house of commons begins already 
to make false constructions of what I granted 
in your Petition, lest it be worse interpreted in 
tlie couutry', I will now make a Declaration 
cooceming the true intent thereof: — The pro- 
ttssion of both houses in the time of hammering 
this Pecilion, was no way to trench upon mj 
Prerogative, saying, they had neither intention 
or power to liurt it. Therefore it must needs 
be conceived, that I have granted 
only confirmed the antient Liberties of my 
Suhjecti. Yet to shew the clearness of my ' 
tentiuni, 4hat I neither repent nor neiiD 
recede fraai any ibing I have promised you, I 
do here declare myself. That those things which 
have bceo done, whereby many have hnd si 
cause to sulmect tbe Liberties of the Subji 
to be trenched upon, which indeed was the 
first and true ground of the Petition, ehall not 
hereafter be dr^wn into «XMnple lor your 
judice ; and from time to dme, in tba ' 
a king, ye shall not have the like cause to 
plain. But as for Tunnage and Pound agt 
■ thing I cannot want, and was never intended 
by you to aik, nor meatit by me, I am 
grant. — To conclude, 1 command you all that 
are bere to take notice of what I luve ^oki 
at this time, lo be the true intent and meaning 
of what I gnmlwl you in your Petitii 
especially you, my lords the Jndges, fai 
nnlyt under me, oelonp tbe iatflrpretatiou' of 



ir pre- 
ord of 



lows : for none of tbe hrfuses of pariiamCDt, 
either joint or separalb, (what new doctrine 
soever amy be raised) have any power either to 
make or declare a lawwtthout my consent." 

Then the Lord Keeper said. It is his ma- 
jesty's pleasure that this se^ision now end, and 
that the purlininent be prorogued till the SOttt 
fOctobernext. 
In the following sessions, vif. Wednesday, 
anuary Slst, it was ordered that Mr. Selden 
lid others should see if the Petitibn of Right 
nd his maiestt's Answer tltereunto were in* 
rolled in the Parliament Rolls, and the Courts 
Westminster, as his majesty sent them wont 
the last tetsion they should be ; and ulso in 
what manner they were entered ; which was 
done accordingly, and Mr. Selden maile report 
to the house, that his majesty's Speech made 
the last day of the wssion ili the upper house is 
also enter«J by bis majeitv's command .^-Here- 
upon Mr. Pym moved, tfiflt the debate hereof 
should he deferred til) Tuesday next, by reason 
of the fewness of the bouse. 

Sir John Elliot. This whicb' is now men- 
tioned, concerns the honour of the house, and 
the liberty of the kbgdom ; it is true, it de- 
serves to be deferred till there be a full house, 
but it is good to prepare things. I find it is a 
great point ; I desire a select Committee may 
enter into consideration therenf, and also how 
other Liberties of the kingdom be intaded. I 
find in tbecountry the Petition uf Right printed 
indeed, but with an Answer that never gave 
any satigraction ; I desire a committee may 
consider thereof, and present it to the bonsr, 
and that the printer be sent for to give satis- 
fiietion to the house, by what warrant it was 
printed. Which was ordered. 

m^.Seldtn. For this Petition of Right, it ia 
known how lately it hath been violated since onr 
last meeting ; the Liberties for life, person and 
freehold, how they haie been in vailed ; and 
have not some been committed, contrary to 
that F Now we, knowing these invasions, must 
takenoticeofit. For Liberties, forState, wo 
know of an order made in the Bzcheqner, that 
a sheriff was commanded not to execute a re- 
plevin, and men's goods are taken and must not 
be restored. Whereas no man ought Co lose 
life, or limb, but by law ; hath not one lately 
lost his ear* (meaning Savage) that was cen- 
sured in the Star-Chamber by an arbitrary 
sentenceand judgment.' Next, they will take 
away our arms, and then our lives. Let all see 
we are 'sensible of these customs creeping npon 
US: let us make a just presentation bereoito 
his majesty. 

Norton the King's Printer was brought totbe 
bar, and asked by what warrant the Additions 
to the Petition were printed f He antwerw), 
chat there was a warrant (as he thought) from 
the king himself. Atid being asked whether 
there were not some copies pnnted without nd- 
diticiiu, he answered, there were seme, but ibej 
were lupprewed by wsmvl. 



23S] £TATE TRIAI^, 4 Chables I. \6Q9.-~C(ue of Walter Long, aq. 



[3M 



Sir John Elliot d«ir^ lome clenrer satis- 
ficiioD might be madr, Bod that he mi^t an' 
jirer flirectlj by wtmt warrant, — ifrliereupon 
be was called in agBin : who snid, he did not 
Nmember the particular, but sure tie wat there 



Hr. SeUtn reported from the Cammittee 
cntcemiDEthepriiiiingufthe Petition of Sight, 
that there were printed 1500 withoat an; Ad- 
ditinD at all, whicli were published in the time 
of the last parliament ; but dnce the parlia- 



ment, other copies haTc been printed, and 
these lupprot and made waste paper; which 
the Printer did, as he said, bv cnmniand tram 
Mr. Attorney, which he received from bii ma- 
jesty. And the Printer fiirther said, That the 
Attorney was with the Lord Pri»j-Seal at 
Whiteliall, and there delivered unto the Printer 
sundry papers, with diven bands to them, and 
on the backside was endorsed thus, ' We will 
' and command you, that these Copies ba 
' primed.' 

Which pat an end to this Grand Afikir. 



128. Case of Walter Long, esq. Sheriff of Wilts, and one of the 
Burgesses for Bath, for abseoting. himself from his Bailiwick 
to attend his duty in Parliament: 4Chart.es I. a.d. 1639. 
[I Rushworth, 684. 2 Cobb. Pari. Hist. 518.J 

In Hilary Term, 1629, the Case of Waller 
LoD^ esq. one of the imprisoned Genileaten, 
came to hearing in the Star-Chambcr, which 
IS u follow eth 



Aa Information was exhibited into the Star- 
Cbamber, by sir Robert Heath, knight, his ma- 
jesty's Attorney- General, plaintiff, against the 
said Walter Long, defendant, for a great and 
prtsumptuous Contempt against his majesty, 
ibr breach of duly and trust of his office, and 
Cot manifest and wilful breach of his oath 
taken as Hi^ Sheriff of the county of Wilts, 
and not reiiding and d»eUing in his awn per- 
ioD in the said county, accurdinE to the said 
oath ; bat bong chosen one of the citizens for 
the city of Bath, in the county of Someiset, to 
serve lor the ssid cily in the [nst pnrliameot, by 
colour thereof he remained at London or West- 
minster, during the lime of that parliament by 
the space of three months and above, in neg- 
lect of hb duty, and in manifest contempt of 
the laws of this kingdom : which cause was 
now, by his majesty's said Attorney-Gcoeral, 
bronght to bearing upon the defendani's own 
oonfeuioa. 

And upon opening the Answer, and reading 
the Eaaminatioii of the said defendant, it ap- 
peared to this Court, ' That the latd defend- 
' ant Long warn by his now minesty made High 
' Sheriff of the county of Wilts in or about 
' November, in the third year of his majesty' 
' reign, and received his patent of sheriffwick 
' fiw the said county about ten days' afler ; and 
* that be look an ouh before one of the masters 
' of ibe Chancery, for the due execution of the 
' said office of Sheriff of the said cou 
. which oath, as appeared by the same there 
r«sd in court, he did swear. That he would 
his own person remain within his Bailiffwick 
during all the time of bis Sheriffwick, unles 
had the king's license to tbe con^ary ; 
that at an election of citizGDB for iJie said 
ofBath, tbe said defendant Long was chosen 
•neof thecitizeni to serve for the said cily of 
Bath in the parliament then summoned, to be 
lioklen ai>d Gommenc* upon tbe ITth day of 



March in the said 3d year of liis majettv'* 
reign ; and being so chosen, and retarned by 
the Sheriff of the coifnty of Somerset, notwitb- 
slanding bis said oalh taken tu remain in his 
proper person, within his bailiffwick, unless he 
were licensed by bis majesty, he the said de- 
fendant did make his personal appearance in 
the commons house of parliament, at the city 
of Westminster, in the county of Middlesex, 
and did, during the most part of the said par- 
liameni, continue in and about the city of Lon- ' 
don and Westminster, and did attend in the 
larliament aa a. citizen for the said city of 
)atb : during all which time be likewise was 



Ids miijesly to tlie contrnry. Upon considers- 
whereof, as also of the particular causes 
reasons of the defendant's demurrer and 
plea formerly exhibited unto tbe said Informa- 
I, the benefit whereof was by order of the 
rt reserved unto the defendant to be debat- 
ed and considered of at the hearing of this 
i, and of divers other matters now urged 
for ihe defendant, both to have justifir^d his the 
said defendant's attendance in parliament, and 
his not residence in person in the county 
whereof he was then Sheriff; and amongst 
other things, that it properly belonged to the 
house of parliament to judge of Che justness or 
unjustnets of the said election ; and upon 
grave and mature consideration thereof, bad 
and taken by tiie court, their lordships did not 
only conceive the said demurrer and plea, and 
other the arguments and reasons U9ed*by the 
defendant and bis counsel to be of no weight or 
sireiigth, but also to be in opposition and dero- 
galion of the juiisdiclion of the court ; llie rea- 
sons moved and urged fur the defendant's ex- 
cuse ur justification being clearly answered, 
and the charges of the Information made goud 
by Mr. Attorney -General, nnd others of his 
majesty's counserieamtd. And therefore the 
nhole (uurt were clear of opinion, and did so 
declare, ' That the said defendant, who at that 
' time, ta High Shenff, had tbe' custody and 



S35] STATE TRIALS, 5 Chablu I. 1 029-~Proaediiigt egamit Wm. Stnud. aq. [236 

' charge of tlic countyof Wilts commiited unto 
■ him bj his mojeBt]', aod hnd taken his oath 

* Bccording to the law to abide m his proper 
' pertou within his bailiHWick during nil the 

* time of hia sheriSVick as aforesaid, and whose 
' [nut and employmentdidre^fuir* his personal 

* attendance in the said couat;, had not onlj 
' committed a great offence in violating the 

* said oatb so by him taken, but also « ^mt 
< misdemeanor in breach of tlie trust committed 
' unto hitn bj his majesty, and in contempt of 
' hia mnjeHy'B pleasure signi&cd unio him by 
' and under his higbaess'a great senl, when he 
' granted unto biiB tlie said office of sheriSWick 

* aforesatd.' 

For which said serend, great oflences in 
breach of his said oath, neglect of the trust 
and duty of hit office, and the great and high 



contempt of hi* niiueiiy, their lordships did 
bold the same defendant wortby the sentence 
of the court; the rather, to the end that by 
this example the sheriffs of all other counties 
may be deterred from committing the like <jf- 
fences hereafter, end may take notice, that 
their personal residence and attendance is re- 
quired within their bailifiwicks during the tiOM 
of their sheriffwick. The court tberefore 
thought fit, ordered, adjudged, and decreed. 
That the said Defendant should stand and be 
committed to the Prison of ibe Tower, there 
to remain during liis majesty's pleasure, ^d 
alsotopa;Afineof9,000 marks to hismajeaty's 
use ; and Furtiiar, make his humble submiuion 
and acknowledgment of his oSence both in the 
court of Star-Chambcr, and to his majesty, be- 
fore his tbcnce enlargement. 



129. Procieedings agjunst William Stroud, esq. Walteb Long, 
esq John Selden, esq. and others, od an Habeas Corpus, 
in Banco Regis: 5 Charles I. a. d. i629.* 

On Febniary gSrd, the house of c 
being upon the debate of the business of the 
Cusiomen, who hsd seised Goods, belonging to 
r. Rolls, a member of the hnuse, dissolved 



themselves into a em: 
resolved, " That Mr. Rolls, a loetiiber of the 
house, ought to have privilege of person and 
goods; but the command of the king is so great, 
that tliey leave it to the house." 

AFter which, the king's Message, in justifica- 
tion of the Faitueis end Officers of the Customs, 
was^takeiL into consideration; which occasioned 
narm Rebates, and the Sptsker (Finch) being 
moved to put the question then proposed, re- 
fused to do i^ and said, ' That be was otherwise 
' commanded h* the king.' 

Then said Mr. SeUUn, Dare not you, Mr. 
Speaker, put the question when we command 
you ? If you will not put it, we must sit still ; 
tlius we shall never be able lo do any thing. 
They that come after you, may s«_v,Tl!ey have 
the king's command not to Au it. We sit here 
by the command ot the king under the Great 
Seal, and ^uu are, by his majesty, sitting in this 
Toyai chair, before both houses, appointed for 
our Speaker : and now you refuse to perrnrm 
your office. 

Hereupon the bouse, in some heat, adjourned 
till Wednesday the SSth, when butfa houses, by 
his majesty's command, were adjourned until 
Monduy the Snd of March. 

March 9. The commons met, and urged the 
Speuker li put [Pie question; who said, ' 1 have 
' a command from the king to adjourn till March 
' the *10sh; and put no question.' And endea- 
vouring to go uut of the Chair, was oolwiib- 
staiidiog held by some members (the bouse fore- 
•eeing a, dissolution) till a Protestation inas 



published in the house; 1. "Against Popery 
and Arminianism. 9. Against Tonnage aao 
Poundage not granted by parliament. 3. If 
any merchantyteld or pay Tiuuiage and Pound- 
age not granted hy parliament, be should he 
reputed a betrayer oflbe liberties of England." 
Hereupon the king sent for the Serjeant of 
the house ; but he was detained, the door be- 
ine locked ■ Then be sent the Gentleman Usher 
(Of the Lords house, with a Messue; and be 
was refused admittance, till the saidVotei were 
read. And then in much confusion the house 
wag B^oumed to the 10th of March. Nerer- 
tbeless bis mwesiy, by proclamation, dated the 
3nd of March, declares the parliament to be 
dissolved. [Though the proclaniBtian was not 
published till the lOtb) and the day following, 
(the Srdjwarrnnis were directed firom the coun* 
cil to Denzjl HoUis, esq. ; sir Miles Uofaart, 
sir John Elbot, sir Peter Hayman, John Seldeo, 
William Coriton, Walter Long, William Stroud, 
Benjamin Valentine, csqrs. ; commanding their 
personal appearance on the morrow. At whicb 
lime, Mr. Uollis, sir John Elliot, Mr. Coriton, 
,Mr. Valentine, appearing, and refusing lo an- 
swer out of parliament what was snid and dooe 
in parliament, were committed close prisoners 
to the Tower ; and Warranu were given (the 
parliament being still in being] for the sealing 
up of the studies of Mr. Hollis, Mr. Selden, 
and sir John Elliot.' But Mr. Long and Mr. 
Stroud not then, nor tor some timo after, ap- 
pearing, a Proclamation issued futtfa for the ap. 
prehendiog of than, 

pnrposi.-. 

the bona 

committed to prison by him in the Star Cham- 
ber, caused certain Questions to be proposed 
to the Judges upoD the asib of April. Wbcre- 
opon all the Judges met at Sei^enut^-Iun by 
cowmmid from hi* m^csty, rihen Mr. Attot> 



iS!] STATETfOAlS. SCbaklbsI 1029.— md oihat. m m Babeat Cmpm. [23S 
kU agreed. That regularly he cannat be com' 
pelled out of parliament to aniiter things dona 
ID parliament in a parlismentar]' conne ; but 
it is Dtbentise where thin|i are done eiorbi- 
imntljr, for tbose are not the acB of a court. 

4. Whelber if one parliament man alone shall 
resolvp, or two or three ahall- ixvtnly conspir* 
to mise false slanden and rumours Mcaiast the 
lords of the council and judges, not with intent 
to question them ia a lend course, or in n par- 
liamentarj iray, but to blast them, and to bring 
them to hatred of the people, and the govern- 
ment in contempt, be jjunishable in li.e Star 
Chamber after the porlinment is ended ^ 

Sul. The Judges resolve. That the same was 
punishable out ofparliament, as an offence ex- 
orbitant committed in pariiiuaeiit, beyond the 
office, and besides the duly ofa parliament man. 

There was 'another question put by Mr. At- 
torney, vix. 

Whether if a man in parlinment, by nay of 
digmsion, and not upon any occasion arising 
concerTiing the lame in parlinment, shall say. 
The Lord!! of tl>e Council and the Judges had 
■);reed to trample upon the liberty of ihe Sab- 
jtct, and the Privil^ea of Parliament, he were 
punjiihnble nr not ! 

The Judges desired to be spared to make any 
Ausver thereunto, because it concerned them- 
selves in particular,* 



My proposed certain Questions concerning the 
OSeaeet of some of the pnrliament men cam- 
Bitted to the Tower, and other prisons : Al 
■hid) time, one question was proposed and re- 
lied, vis. • That the statute of 4 H. a, inti- 
' led, ' An Act concerning Kichaid Strode,' was 
'a ^utictriar act of parliament, and extended 
'only to Richard Strode, and to those penons 
■tbii bai joined with lum to prefer a Bill to 
'd)c house of commons concerning Tinnen : 
' And tlthoogb the act be piiTmte, and extend- 
' eth to them alone, yet it was no more than all 
'other parliament meo, by privilege of the 
'bouse, ought to hare, tii. Freedom of speech 
'concerning those matters debated in parlia- 
'ment by a parliamentary coarse.' 

The rest of the Questions Mr. Attorney was 
vishedtiisetdown in writing a^inilanotlicrdny. 
Upon Monday fallowing, ^1 tha Judg^ met 
spin, and then Mr. Attorney proposed these 
Quslions 1 

1. Whether if any Subject hath recei»ed pro- 
bable information of any Treason or treacherous 
ittcmpt or intentioa agaiuet the king or state, 
that Object ought not to make known to the 
ling, or his majesty's commissioners, when 
tbeteunto be shall be required, nhat infonaa- 
Veo he hath received, and the grounds thereof; 
N the end the king tieing truly informed, may 
ptereot the danger ? And if the said subject in 
■Bch case shall refuse to be examined, or (o an- 
saerilie questions which shall be demanded of 
IwB lor mriber i^iquiry and discovery of the 
tniili,nfaetheritbe not n highcoutempt in him, 
pBuishable in the Star Chamber, as au offence 
■piftst the general justice and government of 
lie kingdom ? 

Sai, Tlie resolution and answer of all the 
Jaslices, That it is an offence punishable at 
albnsaid, so tlwt this do not ccncem himself, 
batanotber, nor draw him to danger of treasoB 
or contempt by his answer. 

1 Wbeiber it be a good answer or excuse, 
bang thn^ interrogated, and refusing to atuwer, 
to say, That he was a parliament man when he 
teceived the information, and that be spake 
Aereofin the parliament bouse : and thereibre 
the parliament bring now ended, he refused to 
tamer to any such questions but in the parlla- 
neat house, and not in any other place } 

Sai, I'o (hii the Judges, by advice privately 
to Ur. Atlottiey, gate this Answer, "niat thu 
eicase being in nature of a plea, and an error 
in ju(%meni, was not punishable, until he were 
Mn-ru)ed in an orderly manner to make ano- 
ther answer; and whether the party were 
l>'in^ in ort tenm, or bf iurntmation, for this 
)Aea be was not to be punished. 

3. Whether a pnrhnment roan, committing 
•a oSeace against tlie king or council not in a 
pwliaincnt way, might, nfter the parliament 
Bided, be pnnisHed or not .' 

Sol, All the Judges, una W(e, answered, he 
■>iiht,ifhe be not punished for it in parliament; 
fcrthc pBrliamentshallnotgive privilege to any 
'contnt murem parliamentarium,' to eni^eed tbe 
bwnds and bmits of his place aud duty. 



And 



" Nalson in his Collections, »ol. 2, p. 374, 
says. There were several Questions prnposed 
to the three Cbief-Jud^rs about mattera in Par- 
hanieut, to which they fjnvc these answers ; 
which bein): something different from what is 
nhore, are here inserted: Quirre 1, Whether a 
Parliament-man, offending the king criminnlly 
or contemptuously in the pnrliiiment-houwi 
(and not then punished), may not be puni^ihed 
out oF parliament f Atimer, We conceive, that 
if a parliament-man, exceeding the priviltge or 
parlinment, do criminally or conlemptuously 
offend the kin^ in the parliament- ho use (and 
not there punUfaed) may he puuished out of 
parliament. — 2. Whether the Ling, as he bath 
the power of calling and diMoIring a Parlia- 
ment, have not also an absolute power to cause 
it to be af^Durned at his pleasure f Am. We 
conceive, that the king hnth the power of com- 
manding of adjournments nf parliaments, as 
well as of catling, proroguing and dissolving of 
parliaments : But for the manner thereof, or 
the more particular answer to this, and the upxt 
subsequent question, we refer ouneUes to the - 

Erecctients of both houses. — 3. Whether, if the 
iiig do CDTnmind,an adjouminent to he made, 
he hath not also power to command all further 
proceedin|;s in paiiiament to cease atthat time? 
4. Whether it be not a h^h contempt in a 
member of tha bouse, contrary to tbe king's 
express Commandment, conteinptnously to op- 
pose the at^oumment t Am: The king's ex- 
press commindmeD I being signified fc -* 



joumment, if any afUr that shall oohtemptu-- 
oud^ oppose it, nirther, or ot' ' < 
privtlege of th« house wiU t 






c than the 






o be a great contempt. — 5. Wltetlier, 
it' a few pari lani CI it-men du conspire together, 
to iiir up ill affections in ilie people ogaiuit the 
king, and tbe government, aud to leave tlie par- 
liiimcnt with nuch a loose, and by words or 
wiitinirs put it in execution, and thi* not pu- 
nished ill parlinmirnt, it be an ofience puninlia- 
bJL- out ol' parliament f Ans. We conceive iliis 
utTence to ba punislinblp out or parliament. — 
C. Wliether, if some parliament- men shall con- 
spire ini^cther to publiah paper* cuntauii'iig tnlse 
iind sciuiiiulous nuuoun aj^aiiist tlic lunli of 
li'C I'rivy-Council, or aof one or more uf them, 
rut to the end to qucsiion tlicin in a legal or 
)i:irliatnentary way, but to bring ihem into ha- 
Iri'd ol' llie penplu, and the government into 
I ijiitcnipi, and to uuke discord betw< 






offeii 



iiisliable out of parliaineiit? Am. Wi 
■ his vUo u>be au offence punishable out of par- 
liimeiil.— r. If (WO or three or more of the par- 
iimiicnt shall conspire to defame the king'ii go- 
vi'riunent, nnj to deter his subjects from obey- 
iti|; or aiaistinK the Ling; uf wb at nature ibis 
oill'iica iaf Am. The iialure aud quality of this 
itlTmiie ndl be greater or lesser, as the ciicum- 
sliinci:s stiali full out. Upon the truth of the 
lact, — 8. Can any priviirf[e of tlie bouse war- 
laut a tumultuous proceeding t Ant. We huio- 
bly conceive, that an earnest, ihuugh a disor- 
ilerly and c<infused proceednig in such a multi- 
tude, may bo called tumultuous, and yet tlie 
privilege uf ilie bouse may vrarraut it. — We in 
all hiimbicoess ore willing to satisfy your roa- 
Jekty's comm:ind, but until the particular* of 



ibe fuct do appear, we can give no direct j^n- 
I betore. And pariJculatly u tu tlie 



■S than befoi 



■ That Mr. Wilflam Stroud was committed 
' under my custody by virtue of a certain Wai^ 
' rant under the nands of twelve the lord* of 
' the privy-council of the king. The tcnour of 
' wliicli Warrant followeth in these word* i 

take knowledf^e, that it ii his 



339] STATE TRIAt& S Ch. I. \029.—PrMeedui^ agemui Wm. Stroad, e*q. [240 

The next day Mr. Attorney put the Judges 
another case. 

It is demanded of a parliament-man, being 
called oreUimi, before the court of Star-Chani' 
ber, being charged, that he did nut submit hioi- 
aelf to examination for sucb thiogs as did con- 
cern the king and tlie government of the state, 
and were affirmed to be done by a third person, 
and not by himself; if he confesses his hand to 
that refu«iJ, and make his excuse, and plead 
because be had privilege of psrliametit; 

Whether iJie Courf will not over-rule this 
Plea as erroueous, and lliat he ought to make 
n further answer f 

Aiu. It it the justest wny for the king 
and the party not to proceed ore Itnui, because 
it being a point in law, it is fit to hear counsel 
before it be over-ruled ; and upon an ore lenui, 
by the roles of Star-Cham ber, counsel ooght noi 
to be admitted ; and that it would not be for 
tbe honour of the kii^, not the safety of the 
subject, to proceed in th:U manner. [But tbe 
kifig droppnl the Proceedings agninft them in 
the Star-Chamber.] 

Pascli. 5 Car, upon an Ilabens Corptn of this 
court to bring the body of William Stroud, 
esq. villi the cause of his imprisonment, to tbe 
marshal of ttie King's-beucb ; it was returned 



' liam Stroud, esq. ; and keep bini close prisoner 
< till you shall receive other order, either from 
' hi* majesty, or this board : fur m daiog, this 
' shall be your Warrant. Dated tliis ed of 
' April, 1629.' And the direction of the Wa*- 
rant was, 'To the marshdl of the King'»- 
' bench, or bis deputy.' 

He is also detained in prison by virtue of a 
Warrant under his majesty's bantf; the tenouc 
of which Warrant followetb in these word* : 

C. K. ; ' Whereas you have in your custody 
' the body of William Stroud, esq. by Warrant 

■ oF our lords of our privy-councd, by our spf- 
' cini command, you are to take notice, that 
' this commitment was fur no tnble contempts bj 

■ him committed against our self and our go- 
' vemment, and for stirring up sedition against 
' us; for which you are to detain him in your 
' custody, and to keep bim close prisaner, 
' uatil out pleasure be further known concera- 
' ing his deliverance, Given at Greenwich, 



second Quzre, about tbe king's potter of ad- 
jotlrniog as well a* culling and dissolving of 
I'arliatneuts, these following parlinmentaryjpre- 
cedents were given in. 4 Aprilis, 1 Jnc. Sess. 
1. Mr. Speaker pronouncelh his majesty's plea- 
sure of ai^juuruing the boute till tbe 11th of 
Aoril (and it was so done.)— 18 Dec. 1606. 
The birds by their messengers signified tbe 
king^s. plensure, that the session should be ad- 
journed till the lOtli of Feb. following. — Upon 
this iMeasBge Mr. Speaker adjourned thehouae 
according to his mqes^'s s:iid pleasure. — 31 
Martii 1607. Tbe Speaker dclii ered the king's 
pleasure, that the house sliould be ndjouuied 
till Monday tbe SOih of April follimins: — 20 
Mail 1607. Mr. Spenker signified ilie kine's 
pleasure about nine o'clock tu ailjiiuru tlie 
house till the QFth of tbe same month. — And 
tbe S7th of Mny, lie being challenged fur ad- 
journing without the privity of the bouse, he 
excuselh it, and saith, as tbe hojise had power 
to adjourn themselves, so the king bad a su- 
pfriiir power, and by his commmdlie did it. — 
SO Marlii 1610. ilis majesty's pleasure to ad- 
journ from Tuesday till Monday !>evennighr. — 
11 July. The kin^ by commission adjourneth 
(he lords bouse. Messengers sent tu the ooto- 
inons. They send by messeo^en of their own 
to the lords, that they use to adjourn themselves. 
The commission is sent dowo, Mr. Speaker ad- 
JQuraeth the house till tlie 1st of August. — SS 
rebr. 4 Car. Mr. Speaker sii^nifieth his ma- 
jesly't pleasure, that the house be presently ad- 
jouTTied till Monday next, and in tbe mean 
time all committees and other proceedings to 
cease. And thereupon Mr, Speaker in tbeDama 
of tbe bouse adjoumed the same according:!!. 



Ul) STATE nUAI^ 5 CuAKLEt I- 1629.— «id aden, m m Ifa&eat CbrjMif. [S4S 



'dwRbof Uaj, 16«9,ia the 5th jcm' of oar 

iDedircctioD being, 'To tbcioanhal of our 
'bcsch br tbe ntne being, et ha suntcaiiSK 
'captiooi* ct delCDtioni* pr«dicti Gulielmi 
•Stroml.', 

Apd spoo ■DDther IM)mi Corpus to tbe 
Ibnlml of ibe HouthoU, U im,vt the bod; of 
Wtlur Long, esq. in conit, it wu reRnned ao- 
mrdii* u the return of Mr. Stroud was. 



(fcoonMJ fir Mr. Long; ergued againat the 
iauffideiicj of tbe Relum. 

Mr. Jtk. That the Return wm inuifiiciene. 
Vie Rctoni coniisu apoD two Wairants, bearing 
Knnl dates, which are the cause* of tbe taking 
nddetainingoflhi prisoner. For tbe firat war- 
oat, vbich is of thelordiof ihecouDcJ, that is 
i«ifidtat : because do cauie ii shewn of bit 
ctaiaiaDent, which is eipreslj against the re- 
niitian of the ptirliameat, and their Peiition of 
lifht, ia tbe time of ibis kio]:, which now is, 
Mflbich be hat) hkeniae pven hisaaient; so 
ba taking bj virtue of the nid warrant is 
ans^ul. And for (be second warrant, it is 
iatiSK^ieiit also, and that Dotwithitanding il be 
ikkii^'sown; for UiekinghinilGir cannot im- 
ffiioD BD7 nuui, as our booki are, to wit, 16 H. 
li,F.Ii!oDitrancedeiHits. 1 H.T,4. Uussey re- 
futs it to be the opinion of Markhsai, in the 
tiKK of Edw. 4, and Forteacue 'in his book, 
'Delaudibiu L^in Anglic,' c. IB. And the 
KSKMi pt^ih ■>> because no action of false im- 
prinument Ties ftgnintt tbe king, if th« impri- 
anatent be wrowiid; and tlie kinj; cannot be a 
■tang doer. Tbe statute of Magna Charts 
il, Tbac DO fiweman be itnprisoned but bj the 
kw ot the Und. And it appears bj these 
baoh, that it is against the law of the land that 
the king sbonid imprison an]i one. 

i. Admit that this be oolv a sign i flea tian 
M notlficBlioD given bjr the ting himself, of 
>1k commitmeDtj of ibe prisoner; jet it seems 
ilatthats,i|>itificHCioD isof no force, 1. Because 
Ike words are genenl and uncertain — ' fur no- 
'tiUe con temp ts.'—Th ere are in (be law ms»7 
Coctcmpls of sevend natares; tliere are cou- 
Unpls spinst the Common Law, against the 
Swite Law ; contonpts in words, gestures, or 
snions. And it appears aot to the court of 
■bit oature these contempts were. — ' Notable' 
— Eretj conleinpt nbich ia made to the king is 
MtaUe. — ' Against our EOTemment' — Con- 
itmpt which is ciaimitted in the Court nf 
Keeord or Cbnacerj, a a contempt against the 
(srenunenC of the king, to wit, becanse tbry 
imobtr the king when lie commands thera bif 
bsvms, Coke 8, 60, a. Beeeher's Case. The 
lot kords of tbe Etturn are, — ' For stirring up 
'■fstdiiian against us' — which words likenise 
•^indefinite sndeenemt. I. find not the word 
'Sedition' in our boots, buujlaken ndjectiTely, 
St leditions books, seditions news, &c. lo the 
ClatMeof [he 1st and 9d I'bil. and Mary, cap. 
l.ltx words are, ' If an; person shall be coii- 
' 'icted, Stc. for spmkiag, Ste. *n<f false, -ludi. 
*i>t- lit. 



' tious, or slaiMleTOos news, sajiing of tales of 
' the qneen, Sec, be shall lose his cars, or pay 
' 1001.' There tbe penalty imUMed upon such 
sedition is but a fine. Coke 4. Lord Cromwel't 
Case, p. 13, where sedition is defined to btt 
Meonua ilio, when a man takes a course of bis 
own, and there it is said, that the words 
— * maintain sedition against tbe queen's 
' proceedings' — shall be eiponnded nccortling 
(o the. coherence of all the woids, and tbe io- 
leuC of the parties. So that it is plain, that 
there is a sedition that is only fiueabie, and 
which is no cause of imprtsenment with* 
out bftil; And what the sedition is that is here 
intended, cannot be galheied ont of the words, 
tbej are so geuersi. — ' Against us* — those nords 
ore redunduit, for every sedition is against the 
king. 

Upon tbe generaiily and incertainty of all 
the words in tbe Return, be put these Cases ; 
IS E. 3. A man was indicted, < qnia. fiiratos 
' est equuin,' and doth oat tty^ebmici, and 
therefore ill. 99 Ass. 45. A man was indicted 
that be was ' conunnnis latro,' and tbe iitdict- 
ment Iwld fidous, because too general. So 
here the oSences are returned generally. But 
there ought to be something individual, Cok« 
S, ST. Specot's case, '.<iuiB sclusnutticus inTe> 
' terotus,' is no good caose for the bishop to re> 
fuse a clerk, for it is too [jeneral, and there ara 
schisms of dirers kiads^ SB E. 3, 3. Because tbe 
clerk is criniiiHinii, it is no good causa tor the 
bishop to refuse him. 8 and 9 Ein. Dy. 954. 
The Ijisbop ofN. refo'rth one, becsose he wa* 
a haunter of taverns, &c. for wbich, and diveis 
other crimes, he wns unfit j htid that tbe last 
wards ore too general and incertain. 40 £. 3, 6. 
In the tender of a msrrioge, and refusal of the 
heir, beonght to aUedge a certain cause of re- 
fusal, whereupon issue may be taken. Cuke 8, 
68. Trollop's case, to say, That the plaintiff i* 
eicommunicatcd for dirers contumacies, shall 
not disable hin, without shewing some cauie in 
special of the eicommuuication, upon which the 
court may judge whether it were just or no : so 
here. And he concloded with a Case tliat was 
resolved, HUI. 33 EJii. Peak and Paul the de- 
fenilants said of ttie plaintiff, Tliou art a muti- 
nous and seditions man, and maintainest sedi- 
tion against tbe queen ; and tbe wordsadjudged 
not actionable. 

Mr. Mown (aficrwards recorder of London) 
moved also, that tbe Return was insuflicient. 
For tbe £ist Warrant That h« was cnmmiited 
by command of tbe king, sienified by the privy- 
council, I will aot argue that, because it^vtas 
claimed as an ancient right pertaining to tbe 
subject in Che Petition of Right, whereto the 
king himself hatfi given his conwnC. For the 

second Warrant, tlie lieium is,- ' for stirr- 

' ing up sedition a^insl .us niid our i^overn- 
' mcnt.' Sidition is oot any determined of- 
fence witliin our law ; our law gives definitions 
or description* of other offences, to wit, of 
treason, murder, frlonj, &c. but there is no 
crime in uur law called Sedition, it is defined 
by a civilian CO be ' Seditio,' or ' Scceisiu, cue* 



a4&] ?£ATE 'S&IALS, 5 Cb^mmI \&ia.^grocetdiHgi againtt Wm. Stntud, aq; {ii^ 

cbureb ; tbcj are to ba ponuhed Wl. by (be 
moDth. Out of all which natures it ms; ba 
collected, ihatthe word '«ditJoii' iitd«ii*a- 
rtouslii, acnoiding lo ibe subject in faaiKi. And' 
Coke 4, 13. Lord Cronnrer* case, * seditiDui'' 
referred to doctrino There are cdanca 
nMre high id their nature than KditbD, which 
were not treasoa, unleat ao declarcit bj act of 
parliemcac. Ever^ rebeUions act ii sedition, 
if Gucb acts be oot witbio the statute of 35 
3, ihej sre. nottreston. 17 R. 3, c. 8, in- 
■jirreciiDii of viUeins and others is made trea- 
EOD ; which proves, thet before this aCl it was- 
not treaton. Aud this act of 17 R. S, n l«- 
pealed bj the scanie of 1 H. i. Bj Che sta- 
tute of 3 and 4 £. 6, c. 5, to asstmble peopla 
■.n alt«i the laws, is made tresMn, if the; con- 
tinue together an hour afterpioclaDiatioa mad*. 
This aueiablj of people itas tedition at tbo 
ommon law; aud the very Bsaeoibl]!, if tha^ 
.tier diisolvc upon praclamatioa made, is oob 
reason bj the haid statute. B; the (tatiit« 
if 14 Elii. c. 1. it is nude fdonv, maliciously- 
and rebelliousl; to hold from the queen any 
castles, C(c. hut bccaiMC this rslatet not tv 
the statute of 3i E. 3, it is not treason. 9. It 
■eetns cleaily, thatihiscase. is within the Peti- 
tion of Hijiht, in which Magna. Charta, and the 
itatulei of as and 38 E. 3, are recited. Tb« 
grievance there was, that difers hava been iin- 
ptisoued without nnj" cause sbewad, to whtcb 
thej might make ansWar according to the law. 
And' upon this return, nothing appears t *' ~ 



fpars reipnUioQ cntitra portam iusunit;' so 
tbEt!^>i[toa iaitfttkingbutdiviaion. Ekacton 
and Olanejle hare the word Seditio geneialiy. 
Before the staiutaof 45 E. 3, cap. 3, it <ta* 
not clear enough what thing sbb Treason, what 
not ; h; wluch statute it is dadand what shall 
be called Treason, and that the Jodges shall 
not declare any itiing to ha Treason, that is 
not. cODlained witlun the Eakl sfatnte, but it 
(ball be dsclareU oal; bj pariiameat. Aikd 
that statute spesks iiot of EeJtlion, nor lb* sta- 
tute of 1 il. 4, c. 10, which makes some tbiuKi 
treason, which are not contained witb the said 
Malute of 35 E. 3. The statute of 1 E. 6, c. 
19, takei awaf all intervenient statutes, which 
declared new treasons; and the said act de- 
clares other thin^ to be tccason, but mentions 
not seditiou. S^ition is the qualSt; of an of- 
fcBce, and is oftantiinM token adverhiall;, or 
adjectirelj. Te raise luinults or IreeoBsses is 
sedition, Trb. 31 E. 3, loc. ^5, B. R. Garbart's 
case; a man was indictcil. because in the bigb- 
atreetbe took J. S. there being in hostile nait- 
ser, and usurped. over liim rubral power, which 
)• manifest sedition ; and there it wa^ but 
indictment of trespass. Mich. aO E. 1, rot. 
One that wu surreyor of tbe wood work for 
Ibe kiag, wa« indicted tor stealing of timber, 
and detaining wages (ridding cerpenteca wages) 
b; one that was but aboj^; and this i) there 
termed sedition, and jet it iras but a petty fe 
lony. Micfa. 43 E. 3, rot. 05. B. R. K. Pope 
was appealed by the wife of J. S. because he 
{donioualy and seditiously munlered J. S. and 
* aeditiousiy' was there put in, becauie it vaa 
doneprifily. By.wbichciuesii appean,thaiSe- 
ditbn is not tuken ni a subatantiTe, so that it may 
be applied to irea»on, treapass, or other oSances. 
By the sutute of 3 U. 4, c. 15, there is a pu- 
Dishment inflicted for the raising of seditious 
docbiue, and yet no punishment could have 
been inflicted (br it untd the said siatale ; nod 
yet 11 was Mditious, as well before the said sta> 
bite. as after. And this appean also by the 
ttatutc of 1st and <d of Philip and Mary, c. 3, 
wbicb bath beah cited. The statute 13 Elii. 
c. 3. recites, that divers seditious and etil-dis- 
pused petBons, &c, obtained bulls of reconcili- 
ation i'roin the pope, which oflence was made 
treason by the said statute, (fur il was nnt be- 
fore, and yet there wot sedition) and by the 
said BtatuK, the aidera and abettors ara Init in 
the case of Prenutnire. By tbe statute of 13 
Klii. c' 1, for the aroidiiig of coi.rxntious and 
•editions titles to the crown, It is exacted by 
the said statute, That he that shall declare the 



, is not treaaoii .by the 
common law, nor is it ftiade treuaon by tbe 
statute of 35 E. 3, ndr by the statute of 13 
Elii. By tbe statnta of 93 Elii. c. 3, he 
tliat tpeaks seditious nr slanderoui news of 
tlie queea shall lose his ears, or pay tOO/. 
and (he second oQance ia mads ii^lany. The 
•talute of 35 Elii. c. 1. it againu seditious 
•ecta^ies, which abtent tbeDudrcs front' iba 



peat^ not what that act, MbtelJ'is called S 
tion, was. This is the very grief intended to 
be remedied by tbis statute ; to this be cannot 
aoBwer accordmg to law. It appears notwhe- 
ther this were a seditious act, trespass, or 
slander, or what it was at all. The words ai*, 
'Sedition acainst tbe king;' this helps 'not, 
far every offence is against the king, against hi* 
crown and digni^ ; that which disturb* tha 
commonwealth it against the king; seditioaa 
dactrine is leditian ogainst the king, as is be- 
foresaid. In 38 H. 6, tiidt prettrat. fol. 19. tho - 
lords and cafmnotii desire the king, that Wil- 
lium de la Pool may be commiitMl Bk diaera 
treasons, and sundry other b«nous crinn; 
and the petition held not good, becauia toe ge- 
neml: *hereupoa they enbibitparticular Arti- 
cles against him, — Aud therefore upon tha 
whole matter, prayed, that Mr. Long might h^ 
dlschai^ed from his impritonmant. 

On another day, Berkley and Daveaport, 
the king's Seijeants, a^cd for the king, tint 
this Return was suihcieiit in taw to detain tbent 

Berkky ht^a, and said. That the case is 
new, and of grvat weight and consequmoe; 
and yet, nider favour, the pmofnuiva «f 
the Ling, apd the liben^ of tba aubject, aro 
"" "■"■■■ly touched iherem ; forthe cr— 



so general as It hath been made, but ju 



ciiIbt 



tha Subject is a tender poiBi, tbe ligbt whereof 
is greaf, jus^ and ianolabla, Tbe I'renigaiiTC 



1*5] CTATE TRIALS, 5 Chauli* I. 1629.— mi wfcw, btt an flateo. Catfut. fMl 



of ^ StOf it an 1^^ poinr, to whicb -cTcrj 
■bjecl ooglit ta lubout. I intrndiiat tuiuBke 
ur riocooiH pf the one or the olhpr, I will 
MjnatmbtT what the kioe bath determined 
ufKni diem txitti, in hb ipeecb which he niute 
4ipDD the Fecitinn of R'i|;ht; to wit, ihnt the 
ptt^'i LJbeoies Blren^tben the ting's Pwro- 
pbr^ ■nd thw the LiDg'a Preroijaiive is t« 
ieftad the people'! Liberties. Thii inny nettle 
tk heuow the people coneerniogtbeir liberty. 
na nj wtucb I inteiid to treat in m* sr^- 
Neol,i>, Eg umrerttieUt^ectionifindKeiiaona 
wkidi Imje boen n»de, and lo ;;ive Mime Rea- 
mo, whertby thh lecuni ihdl be luffident. 

The Otgections wtiich hnve been made are 
nduciUe ta faar heada: 1. Bj' vrhnt the 
praanA here iball ba add to be committed 
wd dttained- «- That this cammitnieiit is 
ipiuc the P«tiiion.of Right. 3. That the 
MB* irlach is bM« retumed i) general and in- 
nnim. 4. That the ofieocet meotioned in 
lU BctBm are bat flDeabte; and thercibre, 
■otwitliuandtng them, the parcr ia bailable. 

For tbe hm, it hath be»n objected, .That the 
coamiMuni here waa b; Che lords of the privj- 
coaadl, and the iigni6caiion of this cause is 
if the bog faimaHf. Bat 1 mj, that diere is 
* hrtbar matter in the retam ; for the Inrdn 
•flh* eooMcil da it bj the coaimand of the 
tn^tOd they only pume ihis cOniBiand. 1 
■ill Mt dispate whether the Lords of the 
Coiticil have power lo commit' an ofiender or 
*», k is cammoa in etperiehce, 8.1 U. 6,38. 
foipie^ CaM ii eipreaa in it. And in the 
ttuioa of ttwht it is admitted, that thej may 
Mi»it. And this is not alledged there for 
iffttnate, but tb« grievaorre there wai, be- 
CMse tbepartknlarcEarte of commitment was 
BNahcwed. Some books hare been objected 
n pten, that Cta« king, though in person, 
OBBotcbBmit id; pertoni 16 H. 6, F. Mon- 
Mrance da foiti 18t. Bat the anthoritT oF that 
book Tanitbesb; if the case be pat at large, 
which waa in ttcspaaa for cutting of trees. 
tht defendant said. That tbe place where, Sec. 
k ))*rcel of Itie manor of D. whereof the Icing 
■ Miicd hi ft«, and th« king commands us to 
m. And the opinion of ths court was, that 
tUi i» BO plaa, withoac ahening a specialty of 
Ikt cobmand of the king. And there the 
■boliooort HjiiThatiftbekii^Conimandme 
la arttw a man, whereby I arrest him, hi thaH 
kare treapasa or impnaonment agnintt n>e, 
dllMa(h ir%e done in (he presence of the king, 
Thi tbe following words are to bt nnderstood, 
tetlw principal case was of one command of 
Atkipg bj word, and Aea sud> command bj 
vanl to arrest a man i* >oid. And IH, t, A. 
«*■ oHecced ; Hmw; says, th«t Marlhaffi 
Madtokigg Edw. 4, that he cannot arrest a 
■BBS fat tospicioii of treason or felony, becai 
if h do wnuig, the party camot havehis actA 
To tUi I ray, Tbtt ibe book there is to 
aaierMood of a wrotttfiil arreat, for there il 
V^kmof aoEKi^ohof folseimpristnnneOt; and 
• neogfat ert«st cannot be made by the king. 
'- ' ■« Boli^itbtbafligoityoftbeking 



to an«at any tnna. Coke, 4. T3. The Uiig 
Fnakn a leate for yean, rendering rent, with 
condition of le-enlrj fur non-paymtnt ; tit 
shall take advantage of the cauilitiou without 
any demand ; and the rcasan there given, it, 
thnt B decorum and conveniencji miglit he ob- 
n-ed. So it is iTot beetling li^ the kiog id 
person to arrest any man, tiut the king cokf 
commnnd another to do it. BraclOn, lib. 8. 
De acquirendo rerum dominio,' fol. 55. says, 
That llie cninn of the king Is to do justice aiid 
jadgment, and _/(i cere ^«bi, without which tbe 
'n itself cannot aubslal. Several cimatmC^ 
) are to be made up<ici those sevend words; 
the last Hord) ' facere pacem' imply, that 
the king hath a coereive power. Britton f. 1. 
mongst the Emrta. Tlie ting said, BecRUse 
'eHi« notsafticientin person lo do erery thing, 
e divide tlie charge into mnn^ partg. We 
re the people's justice, add ajuatice implies 
ne that bath power in do justice in every kind, 
1 wit, by imprisotuoent, or otherwise, HO H. T^ 
Coke 11, as. it is said, lliai the king is tbe 
Chief- Justice. And Lambert, Hi his Justice of 
Peace, fol, 3. saya, That in ancieoc hittories, 
the Chief' Justice ofEtigland is cntled ' Capi' 
cnlii JasticiarluB et Prima Juslicta,' after tbe 
king in England. Sa tiM the king bath tbe 
same power ofjustice, as he chief-justice had. 
This impriBonnient here, which is before coU- 
ctlon for any offence, is not nsefl toward the 
ibject BS imprisonment for any fault, but k 
itner «n aiTeat or restfaiot to atold fvther iu- 
jnvenieacea, 14 H. 7,8. A jnstice of peaca 
may arrest iota riotously asscoibied, for pra- 
tention of farther miKhlef. And tbe Bobk 
sho aaya, That he may leave his terraiiu the>« 
rest men, for saiesiiard of the peace. It 
MM well knowD, that if a house lit- let on 
Sre, every man may pull down the neit- houstf, 
for prerention of a greater mischief ( *o it ' 
seems concerning the incendiaries of statt, 
they ought to be restrained and supprest, lett 
other! should be atirred up by them to the same 
combustion, 33. Aas. 96. and 29 E. 4, 43. iA 
false imp riaonraent thfe defendant justifies, be- 
cause the plaintiff was mad and out of hit wits, 
and thM he bad done some harm, end that ha 
had boDtid and beat him lb avoid furtbtr 
harm, « hich mitht hnve happened by bis mad- 
ness ; and thejustification was held good. So 
ititin matter ofgotemmenl; to avoid Commo- 
tions, the king ought to use his coercive^ power 
against those that nre etiriged. The olneclioH 
wia, that this course was against the Petition 
of Right. But I answer, That thia case Is out of 
rhewnrdaof that Petition; the words of the 
Petition were " Whereas by the statute called 
tfaeOrentCharter,Bndbythestaniteor28E. 3, 
no freeman may he taken or impriaoiled ;'-yet 
against the leooor of ibe adid atatute, Ac 
dirers of yonr subjects have of late been impri- 
aooeiJ, without anv canae shewed ; and wbeii . 
for tbeir defivenuicc, &c. they were brought 
brfol^ thejusliftes by writs ofHabeaa Corpus, 
ttiere to undergo and receive aathecourt should 
Drier, and iheir keepert comniaiidcd to cFttH^ 



,,Goo^;lc 



«7] STATE TRIALS, 5 Cbakui L lG29.-~l'roctediig* agaim ffm. Stroud, aq. [34S 

the came of their dnuner, mod no cttDse was 
ccrtiSed, but that thry were detained by joor 
nifijestj'B apecial command,, liguificd bjr ibe 
lords oFyour counciJ ; and yet were returned 
back to se%'erB) prifona, without bring charged 
with anj thing to which theif miKhi make an*wer 
■ccordirig to law." 'ITieie lost words ore ob- 
•ervable, < without being chained with an^ ihbg 
* to obicblbej might make aniwer:' tliesewardi 
Aa not refer to the return of the Habeas Cor- 
pus ; for tlie cause returned therein cannot be 
Cravened, 9 II. 6, 54. but the court took it as 
true. But the setting fortli of ihe cause, and tlie 
answer to the same cause, is to be upon oiher 
proceedings, to wit, upoo the indictment for the 
offence, or otherwise. And tliero is a great 
difierence between the return of a writ hi 
which a man moj answer, and die return of 
«n Habeai Corpus 10 E. 4, and 3 H. 7, 11. 
are, that if the aberifF return Retcout, all cer- 
taiuties of every circamstnnco ought lo be 
afaened ; because it is fitting, that a thing cer- 
tain be brought into judjinient. And upon 
shewing of the grievance, as above, the pelitiou 
is, that no freeman, in nnj such mnnner as be- 
£]re is mentioned be imprisoned or detained; 
auch, and it hiilh relation lo such imprisonment, 
wliich is mentioned in the premises. And impri- 
■oument mentioned in theprenilseiof the ptii' 
tion, is, where DO cause at all wasmeotioned; 
theo where any cause is shewed, is out of the 
petition, and tliat such h tlie word relative, 
appears bj Coke li. 152. where man; cases are 
put to the same pnrpow, wliich see. 

The third Objection vin, Ihat the Reiaro 
was general and uiicertsin. Ihe counsel on 
the other side liiid divided the words of the re- 
turn, but tliat is 10 offer violence thrreto; for 



but L. 

words, — ■ notable contempts' — it hatb been 
•aid, that the addition of the wbrd notable is 
but to makes fiourishi Bmlsaj, ThatnolaUe 
is not the emphasis of the return, hut it only 
Mprcsseih the nature of the otTence; and jei 
'notable' is a nord observable by itself in the 
law, and implies, that ibe tiling is known aad 
noted. B/ 27 E. l, iheriBs shall be punished, 
that let notorious offenders tci ball; and by the 
■tatule of 4 II. 4, cap. 3, a notorious or com- 
mon thief shiill not make his purgation : and 36 
E. 3, 71. in a trespass for false imprisanment, 
the defenduiit snld. That the plaintilT came 
into the toxvn of Huntingtou, and because he 
was teen in the company of R. de Tborby, who 
was a notorious ihief, be, ns bailiff of Hunting- 
ton, took him upon suspicion. I confess, that 
— ' for contempts' — is general, yea, it is genitt 
Mtaeraliiiimum, and within the Peiition' of 
Right; but the words are,—- — ' ugaiost our- 
' self.' It hath been said, that this might be 

hj irreverent words or gestiirei. ' And our 

' Government' it hath been snid, that this 

wight be by contempt to the kinE|s writ, or by 
Retraxit, as Beccher's case is. To this I an- 
swer, thul thost words which are spoken to one 
purpose, ousht not to be wrested to another; 



tnd this is against the conuoon meaning of the 
words. Coke i. Thou art a murderer, the de- 
fendant shall not afterwards explain it to be a 
murderer of hares, for the highest murder is iit- 
tended. So here, the highest govenunent ia 

4. It hath been objected that ' for slir- 

' riTig up of sedition against us' may per- 

h.ips be but an offence fineable; bat tboM 
wurds joined with the former words, shew tbif 
tu be an offence of the highest nature; sedition 
is a special contempt. And attbou^ sedition 
iu itself may be but a general offence, yet here 

it is, ' sedition against us and our BoveriK 

* inent' which makes it particular. It hatb 

been confessed by one, that argued on-tbe other 
side, that there is a general in a pafticular. 
Cote 4. p, 75. Holland's r — ■'■ — '- *' ■ 



e, tberen 



the state ecctesiistical. Thirdly, Tbereismore 
particular, as tlie colleges, deans, and chapters. 
This being in a case nf return up<m Habeas 
Corpus, uo precise certainly is required. In 
an indictment, a certainty ot all circamstanco* 
is requisite; inpteading,!! certainty isrequired; 
in counts, a more precise certainty ; in bars, n 

is not s\ich precise certainty required bcro as in 
iodictmeiit or count, because the patty ought 
tO'BDSwer unto them; nor so much certainly 
required iu this as in a bar. And the return ta 
not incertain ; fur, as it is said in Plowdeu SOS. 
and 193. a thing is ioceriain, where it may ba 
taken indifferently ooe nay or tiie other. Bat 
where the intendment the one way exceeds the 
intendment the other way, it is not uocertaii^ 

as it is here. The words are, < far nolaU* 

* contempts against us and nur Government, 

' and for stirring up of sedition against ita.' 

Here is a certainty of inteudment one way. 
There are many writs which aro more uncertau) 
than this return here is, and yet good. Ill* 
Writ concerning the taking of an Apostate i* 
general, < quod spretii habitn ordinis ;* and jet 
there are more sorts of apotCacies. In the writ 
concerning tbe amoving of a leper, the worda 
are general, and yet it appears by F. N. B. that 
there are two kinds of lepers, one outward, and 
the other innitrd; and for the latter, the writ 
concerning amoving a iepcr. So ihe writs coit> 
cernlng ifie burning of an heretic, and coo- 
ceming the burning of an ideot, are general ■ 
and yet there are sundry kinds of heretics and 
ideots also. But it bath been objected, thai 
Sedition is not a law-term, nor know'n in the 
law, of which tbe judges- can take no notice; 
but the words lo express oilences of this natiu^ 
are murder, treason, felony, &c, and that no in- 
dictment of sedition generally was ever. seen. 
To this 1 ansner, perhaps it is true, that no in- 
dictment was ever seen made, because the form 
of an indictment is precise ; words o£ art aia 
required therein, at appears in Oyer fit>, 361. 
Cote 4, p. 39. Vaults case; yet in 5 E. «, 
Djer 69. itis said, that /araJniimpliaJc2ewr« 
' ' gb the contrary hath been o ~ ' 
words by periphiui* are h 



„ Gooji^lc 



M91 STATE TRIAi:^, 5 Chaklu L 1020 and mim, on an Babau Corfut. [830 ' 

TbemmDt ofajaMiceof pe«c« UiB)^nben<l 
J, S. becBue of prepeme malice, inttrfecU J. 
D. B good enoDgh, although there wanti the 
vgd mardrmit. In 5 K. 2. F. Trial 54. 
Bilka^ My», That a miscreBnt ihall forfeit bji 
lud. Out of which it mo; be gathered, that a 
■HP nuT he iadicted for mucrenncj. And it 
mnu liuwiie. that an indictment of aeditioQ 
suj be good, for in >ome caset it is treasoD. 
I ifree, Peake'i case, which hath been objected, 
■kit fiir thcie wordi * ledittom iellow' do action 
lio^iiMt wit Coke A- 19- bec«u*e those words 
d* ngt inpon an aa to be done, but mAj an 
■dJBatioo to do it; but if a man saj nich 
wuds of MM>tber, whiGh import ll4at he htlb 
■ade MdhMB, ib«f are actionable, as it wra 
ifulfediD Pliilli|M'a and Badb^'a caie, 34 Elia. 
C«ke 4. 19 • Tboo bait made a tcditiooi Ser- 
'■00, and moved the people to (edition this 
■day,' Btyn^ed BCtionahl*. So in the lord 
Cramaatfa. Coke 4. 18, 13. Ac actjon woold 
ba*e lain for tho*e notAt, ' You like of those 
' tku main tain Mditiooagamit the queen's pro- 
'ceedingt,' if then bad not been ajiotbrr mat- 
Ki ie the case. I agree, the case of 81 E. 3. 
Sir John Garbvoi's case, and *e E. 3, for in 
tboM case^ sedition oaa onlj taken ndjeetive- 
Ij, and ibein an indinatioo.only to do a ledi- 
boBi act i Mid in tacl) aeose, sedition may be 
oplied to other ofiencet tban (renson. In 31 
£ 1. f, Gard. 15T. Gardein in Suc^e made 
failiaeot of land which he had in waH, this ii 
JMJeiture, says the book, for the treaaon whieb 
le did to the ward ; la lbei«, one thing it called 
mnoD, which is onljr a breaGh of trusC. In an 
apped of Mayhem, it is ftlonici, mid yet B. 
T. 1. it a not lekmy ; but felony i* there only 
fat to eipms the heinousneM of the t^Dce ; 
It is, ai it were, a felony. The uatnte of 3 H. 
4. 1 Uar. 13 Ela. 35 ^ii. IT R. !i. 3 & 4 E. 6. 
14 Eltt. which have been objected, hafe the 
aord •editkio, but oat applicable to thii case. 
Bncloa in his book de Corona, says, * si quia,' 
fcc If any by rath attempt, plotting tlje king's 
death, sboatd act, or cause any to act, to the 
Mfdon of the lord the kin^ or of bii aiiny, it 
■ tMBion. And Glanvile, m as many words, 
Myi, That to' do any tbinf in sedition of the 
knyloiil, or of the army, is b^h-tieeBon. And 
BrittoD, (bl. 16. it is tugb-traasoD to disinherit 
iU kisy of the realm, and ledition tendeth to 
the dinnhentance of the king; for, as it hath 
ben Mid, ' Seditio est quasi saotMim itio,' wfaeii 
ikepea p le are severed from the kingi or it is, 
'Ss^anos i ditione,' wben the p*Q|i)* are 
Kfcnd from the power of the kioc. And in 
teieaw sedition ia do stranger m nor law; 
ud mck sedition whicfa men the people Jrom 
dc bs^ is tr«a*on. - 

Btu It bath been objected. That by the sia- 
■Ms of 35 E. 3, the parliament ongbt only to 
tennine what is treason, what not. To this 
I uNwer, That opcm the said statute, the posi- 
Im law b^ always made ezplicstion ud espoai- 
Dob. Br. Treawtn M, the words are ' Compass 
|Driasgitiethede«thof tbekins;' and^reit 
u takaa, (b» be tlwt malidmii^ denieth bow 



tbe king may come to death, by word* or odtei^ 
wise, and does not act lo eipUio it. ni, in as- 
saying bamess, this is treason. 13 £1. Dy. 9(% 
Doctor Story's case, he being beyond sea, prac- 
tised with a/oreign prince to invade the iMln>, 
and held treason, because invasiou is to tbe 
peril of the prince, Bnd~so within the itatnte of 
fi4 £. 3, Mar. Dy. 144. The taking 6r the 
csstle of Scarborough wos treason in Stafford, 
by 30 Ass. p.- 19, whicb nns presently after th« 
makingof tbeBlBtuteoftS£. 3. A man ought 
to hare been banged and drawn, that brought 
letten of eicommensemeul from the pope, and 
published tkon in Eogland ; and it is to b« 
noted, that at Che same time there was no sta- 
tute to make it oeaion, but Dpen construction 
of tbe said statute of tS E. 3, though now i« 
bemade treason by tlie statute of 13 Elii. if it 
he with intention to advance foreign power: 
Peihaps the sedition meutioned in ihii return 
ii high treason ; and yet tbe king may make it 
an ofence finable, for he may prnsecute tlw 
offender in what coune hepleasetb; and if it 
be treasnn, then the priaoners are not bailable - 
by tbe itatute of Westminster. But, luppose 
Mat it is but a finable o9ence, yet by tiie said 
statute, thaie wbo are imprisoned for open and 
notorious naugbtiness, shall not be hailed ; the 
nme naughtiness is there intended high aad 
eigrhitant offence. 

3, It ii Rt lo restrain the piisoners of their 
liberty, that the cmuoion-weallh be not damni* 
fied. It is lawlul to pull down a bouse to pre- 
vent the spreading mischief of fire ; it ii lawfttl 
to reitrain a furious man. And by the 14 H, 
T, a justice of peace may rettrain a rout. Tbeit 
the restraint of dangerous men io the common- 
wealth ia justifiable and neceiiary. 34 E. 3, 
38. p. 95. sir Tbomns.Figet went armed in tbe 
palace, which was shewed to tbe blip's council ; 
wherefore he was taken and iliiuriiied befors 
the chief-jusdce, and cominitted to the prison, 
and be could not be bailed till the king sent 
his pleasure; and yet it was ihcwed, ibat the 
loid of T. threatened him. Out of which cbs« 
I observe two things: 1. That tbe judge of 
this court did cause a man to be sppriheoded, 
upon complaint made to the council, that is, 
10 the lords of ihe privy-council. 3. That al- 
though he did notliing, he is not main emable 
until tbe king sent his pleasure, because he was 
armed andfurioiudydisposed. So here. Where- 
fore I prey, that the prisoners mty be sent back 
again, 

DownpDrl argued to tbe same intent and 
parpo^e, and therefore I will report his orgo- 
ment briefly. 

1 , He anid. That the return hov is sufficient. 
The counsel on tlie other side have mode trao 
tions of this retarn, and diviiled it into several 
parts, whereas the genuine construction ought 
to have been made upon the entire return ; for 
no Tiolenca onriit lo he odeicd to tbe text, f 
£. 4,90. InG^ imprisonment, iheddendant 
did Justify, and alletked •everal reasons of hb 
wit, becauH a awn w M kiUeil, 



jmtjfiaidoo; to wit, bi 



CM] STAT£TRUt£, sCm^fajni. I«i30. 

and thai, tin* wm w ([-.e eoniAgi of S. Biid lint 
Ae commoo voice uid fsMe waa .ttmC the 
ptobiliff ivus culp«Ue. Aod tlus mi held n 
eiud plee, althoQgti Biynn did there object, , 
JhM the plea vai double or trable; aod the ' 
KKSoa waa, because twentj cana of sosfiidon . 
towke but sne entire catue; and indivisiMe 
luiity in tlii» ou|;ht not to be divided : lo Cuke 
S, M. Crogate'i cue. In an action ef tret- 
)nu, the defeudant jaitifiu tbr Mvend cause*, 
■nd keld goad,.becaiue iipon tlkc mailer, all of 
tiKB adce iuit one caote. Coke S. 1. IT, It 
M «nid. That it is aa aajoM thing, unlesi the 
mrhoit Iftw be looked ino, to jud^ and BDswer, 
kj pntpoundiD^ anj one panicnlsr (hereof^ 
and tf . il be anjiMt in the exposition of a law, 
it i« uncivil in a reOini to make fractions of it ; 
in the conttniction ihereof etpeciallj, it being 
a return tbr infomMioB, sod notforaccuiation, 
S. AltlHiUKh the couasei on the other side 
hare tat«n thit caie to bo nithia ibc Peiidon 
of Higbt, ;ct this ia Petitio primipii, to tak« 
tliat lor granted which ii ihe question in debate. 
^ He said. That be wouM not o&r notence (o 
' die Petitlou of Ki^ to which the king had 
asKOted, and which ahall realty be perfonbed. 



•aid statute. 

S. He Slid, That diii wai the actual commit- 
mmt of the lords of the prtr^-cduncil, and the 
habitual or virtual commitaietit of ibe king. 
£fiut b«c«|UM upon these two maltw* h« pat 
m case, not gave anv reaion, but whM had 
beeo put or giren ia tfae argutneat of the fmul 
Habeas Corpus, Midi. 3 Caroli', and aflertrards 
in the hoase of coianwins, (vide page 5(>, tec. 
■ate) which »u reported to the lords in liic 
painted cbaiobcr, I hire bere omitted theai.) 
And for the great rcvpcct which the law nrftt 
to ibe commands of the king, he pot umm 
cases : 7 H. S, attadiment,af waiu against lb* 
tenant in dower, and the waste wai uiignad 
d the 



of die k)rd the king, took all the Bsh ant of the 
■aid pond to the use of the lnlll the ting, and 
lield a good junificatitn ; wtnrh provea, that 
&t oommand of ibe kins tli«re to ber husband, 
excased her of tha said waste. And jet it is 
clear, that a tenant in dowctis Halite to an actioa 
of H'Bste, for waste done ia the time of her 
second husband : but coatisrj is it, where a 
womnn is tenant for life, and took a husband, 
It ho made wnste and died, no action lies against 
die wife for that watte. And F. N. B. IT A. 
If the tenant inpr^pi at the faaJ mip€ make* 
fchafa, the king may tend mrriito -the j w t WM , 
rehtarsing that ne wat ia hit tervica, sc. com* 
Mandkig Ibtco, that that dalMt ha not pre* 
jndidal to him ; aad tbil oomataBd of tha king 



■ 4. For Ibe paiticrian of theritan, it it— 
* famoiiMaw ii i rw ptia pi a ii thia B tii M aii^ 



. — PnxMa^agaiBSt Wm. Slroad, ag. [US 

— Ixitatto that, it bath been laid, that the 
king hath sondt^ governments, to wit, «c<leit- 
ratical, political, &c. and it is nM ibcwn agaioM 
which of thnn. This it but a ornltiag eiccp- 
tioB ; tiitj Bight at watt htva excepted to ttna 
reUMi, becHue it it not tbewn, tli>t these coa- 
t^tptaweK*fierdKkutgenei«l pardon; that 
had been « better ncf[FtiMi. The hut ^ord* 
of the rerarnaie,— ' raiang sedition apinttBt^ 
—but Bi to this, it bat bean said, lliat tJilit h 
not a wont knowa m the law, ib4 is a]*fg% 
lakaa eitlter Bdverbiallj, or adjectivelf , and ia 
not a tubitantive. Toihishiia>d,ihatalth«i:^ 
it is not aintHtantiv* for (he pr e seiia t ieit, j«t 
it it a tubstantiva Ibr the ctanruction of a king- 
dom. And he said, that Itt fcuad the word a^ 
iifw in the low, as! the^^nteqiient of it likew. 
wise, wUch is Mlacti* fvapafi. Bat it it not 
ever fotmd to be takan <iD a p>od tease, it is 
alwiiff iHnhed and caapted *itn irtnion, rebeT- 
lioo, i utai ' m-Uu s i , ar tucfa Ifte, as it appMta b* 
all tbcae tuMatM itldch h»v« bean laiaenbared 
on tbeoihar nde. ThatafoR he pnjtd that 
the PriHmtrt a^t be aent back. 

2Via. iC<ir.I.lLR. 

Tbe 6i«t da; of the Term, upon Haheai Cor- 
pus to sir Allm Aptley, the I^aiienant of tfae 
Toner, to bring here ihe bod; of Jobo Selden, 
etq. with the cauM of detetitlon ; be retsmed 
the iBia* cause at in Mr. Stroud'i case : and 
&Ir. Littleton (aftenrardt sir Edward, and Chref 
JnsticM of tfae Comau)ii Pleat, and Keeper af 
tha Great Seal) of couniel with him move4. 
Hist the Itetura wat intafitcient in tehttaace ; 
■itereloTe ha prt]|ed that ha might be bailetl. 
It It trac, that it is of great omnpiem:*, botfc 
to the crown of the kine, and to tlie Libertv of 
tfae Snlject. Bat, under favour, for tlie din- 
cully of law colRaihed to it, the cat* cannot bfc 
calltd grand. In my afgunteiit« I will alfiH- ■«- 
tUng to the cann, bat tntt which I have seek 
with these eyet, and thai which in aiy BBdei>- 
Btanding (winch is vadi sabject to mittakea) 
can receive no tafitaent aaswer. 

I will divide bit arBBment into four levend 
Iletidtt 

1. To pain 
aaneceiaary, i 
in qaetlion. 

8. I wilt coatider the Warrant of the Pnrf 
CoDncit hi this caae. 

9. The Warranieflhekinibiiatelf. 

4. Tfae Ofajaatiom wbioh have beta mad* b» 
the oomrtBT iMe, tbe strength of them, anil 
give antwet'ta them. 

For fbe Gnt of theta heads, 1. I wSI adnit, 
thu Ike kieg tawr tsatanit a maa. 3. That a 
man committed b; tbe king it not reptevitaMe 
by tbe therir, but ha i* btuIaMe by this oonrt, 
notwithitaading thattatBte of WetiM. 1, c. 15. 
Am) that h* shall not be bailable, it ^inn ibc 
Petitiatt of Right; I will not dispute it, for il i* 
eMahMted by iha Aatiiet of tbeking to lite taid 
Petitioa. AodlheargMiieatsnadetalhispatii- 
the said pariiuneBi, aad in the Ftiate^l 



MeMthe 
ehuthetiK 



fiS] STAYbTEIAIS. iCaAtLL»lAM»^-^n4»Am,oKaaIIabattCotpn. [SM 



to whieb erenr on* nwif reiorC 

Uui 1 BUI M^ n ■ grouDd of mj fbli'iowin; u- 
ffovt, ifaMm offeBces an of (iro natarei, 
[^litd, or m treqielKa ; >o th^j arc panisbc J 
ii tiro rnDDcra, lo wit, CBvAoUy, or by fine, 
wivpriwaiaenC- Bra tbc uBeuce* of the first 
aiMR, ■■ TreuoH, and tfaa tike, impn- 
HMKnl id impoMd upon ttw ofieniler, onl; 

; but for miicicnMaDors of ihe 

mpoietl upon 

L Tbtn this, m nj ground, 

1 tbat B imprisoned, onlif for 

■ bafvrit cofiviction, loajf be de- 
PBcd » priua irichont bail, if it be oSerad, 
^w it bs in mhbc paiticular caws, in whicb 
il('Caatrar7 i« ordaiiwd bj taji puticuliir bib- 

(. For ttw Wwrant of tbe Pri*; Council, 
■Aicbsgnifits tlicplauureof til* king to con-^ 
mk the prisoner ; pcrhapt ttlia oas a good 
foni of the coraButocnt, bnt it is no ground 
Jar iht detaining uf the prisonar wiltiuot IhuI ; 
MJ tba the king himself hath aoknrrwtedgad, 08 
da ucient right of the rahject, in tbe PetitiiHi 
i^Kight; wlierefareitisnMnDii' lo be dttpuled. 
3. Fur (be Wiu-rant of tbe king, as it is car- 
lifed hf Om R*tam, thare ii not an; tufficient 
, wae contained witUn it, IbrttiedctuiHii '' 
ibt priiaiMr in prisaii; ibr tba lavr being, 
hra declared above, that for a tniwltincaDor 
bMw caneicDan, no frteman nm^ be iimpn- 
xwd before conuerion, nithout biut or pibid- 
pK, tbcst^.qDestioa noW i^ if tbi* return 
MWain mitluB it anj capital offcoce ; or if onij 
tmmat or luwieHMBitor, and tlien tlfe part] 
a btilMile : and 1^ the dimaiiilion hereof, 1 
■iU coAwlCT tbe Return-, 1. Ae ic ia divided ii 
Mwial pBTU : 3. 1 wiU ccmtder all those pnrts 
of i( tegether. ], As it is tetvrcd- in puns. 
Tie first part of it, ' for notable coniempts bj 
' bin> cimnutted against oor«etf andoor gaveni- 
'aeni.' For ' cowetopta,' ell conteDipts are 
ifiiDfi tile Icing, nudiatetf, or immediately, 
■Bd agaiust his government. ' Nultble,' tbii is 
d one nilh notoriam and maHifeM, as nppesrs 
^llwMatateofWcstm. 1, c. 19, and iaE.», 
Ii, vhich batb been remembered. And ' no- 
■■Me'ittiDt an- enplutlicBt expreasion ef the 
Mweof tbe tbing, and alters it not. 'Against 
la,' iU riots, ronis, batteries, and trespRsses, 
■e against ua, and aninat our crown anif 
tpilj; contempt againat our coutt of jus- 
tica IS & contempt agninst us. But If (he 
Brtura were made hete, that he was con»- 
Wlad (or a coatempt mBrie- in Chancerv, 
t^ jwiv ihalt be bailed, aa it was resolved 
is tlus Court in Michael Apsley^ case, and 
in Rmweira caie, 13 jacobi, for (be retorn is 
IM gtBeral. In it tbe nature of iIib. oflence 
N^t to be expresaed, that ihe court may jodge 
tmof. And ' coniempts' liere itvtdimitutiiii 
■Bgta .- tberafqie fo>- (bemt hetoft coaviction, 
■W paror cannot be imprisoned withont bail or 
■aioprize. 

The aacond putt of the Return is ' and for 
'Nuriitg up of Sedition ngainat US:' tbe other 
«li Mid, TUbwdill* i* «««r Uken in ibe iM«e 



I; that is trne. But hence it fellow»DMt 

the party that coiO'nTts it is not boUablr. 
Every small offeoce is taken in tbe wont sense, 
a* (lie stealing df nn npple, and the like ; bnt 
such bind of oQenders atialt not be cammicied 
without boil. To eiamine Che natlire of Ihia 
offence, which is called ■ sedition,' it ought to 
be understood, as tliis Return is, either as ires- 
posB, or as H^ Treaaon ; for it cannot be in- 
tended to ba Petty Tr^astin, for Petty Trcft- 
son is Ml called in nspect of the oltnce 
done to any panicidBr subject ; but in respect 
of the hing^ it is but as a Pelony, therefore 
the iDdictmiats for the aaine are felanioesly 
aod traitotondy. And here the words are, 
' sedilioB against u* ;' so of necessity it 
ought to be intended of an offence, that more 
itDmcdiaCely concenis (he same litiig. For the 
diicusMHC of this matter, 

1. I will conaider in whet senK and Mgntfict^ 
tioQ lbi« word ndilio is- used. 

S. How it shall be expounded here by rela- 
tion iliereof to the king. 

3. W hat ainse these Honh 'against us,' ilwll 
have here. 

1. For Sedition ; ii t* not found in the di- 
vision of oSesceB in our law, bnt at it h min- 
glad and coupled with other offences. No in- 
dictment of aeAtian only wm- ever seen, rtor 
can be abewn; roatt. Hots, and nnlawtnl-ossf m- 
bliee, are munb of the iinne nature with it, and 
d« well eipresB the nature of sedition. The 
Enebah word is dhiws from the word' leditio 
in Laein, aud the dterivalion of it is, as hnth 
beaa observed, senjin, or uonum itio ; atld the 
seditiout, as one says, take a diversion and 
draw otbers : it is used in the Bible, in poeta, 
hiitiirieat and orators, for tumult, or hurly- 
burly, or uproar, or euofosed noiw, — ' Seditio- 
' que receoa dabioque sosurro,' in Liv. lib. 3. 
cap. 44. Aiid in Tacitus it is taken for mutiny 
in an army, when the army is always repining 
nt the captain. In the Italian Isngua^, which 
is ihe elder son of Luiin, sedition and discord 
is all one. Numb. caff. M, 3, the Latin tran»- 
ladoQ is, ' Ver«i in sediiioiie;' the En^ish i«, 
' chode,' or ' murmured.' Numb. 86, 9, the 
Latin i", ' In seditione Corah ;' the English is, 
' In the Companr of Corah.' Numb, if, S, 
the Latin is, * Ncc fait in seditione eorum;' 
tbe English is, ' in ihe company or assembly of 
ilwm.' Judg. 12. 1, the Latin translation is, 
' Facta Mt eigo seditio in Ephraim ;' the 
Englibh translation is, ' Tbe men of Ephraim 

Sithered themselves together.' In the New 
cstament, Acts 19, 40. Seditio in the La- 
tin is iranriated ' Brroar' or ' meethiB.' Atf 
15, 2. ' Facta est ergo seditio,' &c. and 
it is tranttated ' diisension' and * di'spocaf 
' tion.' Aets 84. 5, TertuHus the Omtor 
accnaeth Paul for nioving sedititni ; atid tliQ 
subseoaent word* are, ' A ringleader of the 
seot of the' Pharisees ;' so that his sedition there 
was bnt a »chisnt : and the words there are in a 
inannet the retj same with out's ben ; then it 
was, ■ for moving ;' btfre, ' tor attrring of Sedi- 
tion.' Siiilio,- a* ao apprared ainfaoT aj«', 



t5&] STATE TRIAI£, 5 Charls* L lesa^—Pnceedingt agaiiul Wm. Stnmd, aq. [Uti 

imporU diKordiam, [o-wit, when die memban 
of one bod; £glit BgainU aootber. Tlie lord of 
St. Albsrii, who was lately the Lord-ChRiicellor 
of En^nd, and wm a Uwyer and great >[Mes- 
maD likewise, uad well knew the accputioii of 
this word < >edi[lDD' in uur law, halh madean 
essBi of wdiiion, end the title of ihe essay is, 
* Of Seditions and Tumults;' ihe wbole essay 
tleaerres tbe readiag. (See 3 Bacon's Works, 
Seu.) And there is a Prayer in llie Litany,— 
' from Sedition and Heresy, &c.' bo tliut iiere 
■edition is uken as a'kiild of sect. 



t labour sliall be 
any thing In our Law cross tliis expaiitton. 
And it saems clearly, that there is not, 3 H. 4, 
B. 15. And it is b the Parkiametit-roll, d. 46, 
Bj^nst Lollards, who at tbfit thtie were taken 
as hereUt:s,nad lays. That sucli preachers which 
excite and Kir up to sedition, shall beconventad 
before the Ordinary, &;c. There, sedition is 
taken for dissension and division in docirine. 
And tills is not made Traason by the said sta- 
tute, although tbe said statute be now reiieoled 
fay the statute of 35 H. 8, c. 4, 1 and 9 Piiil. 
& Mar. c. 3, which ij in Rastal, News 4, which 
i* an act ^ainM seditious word* and news of 
tbe king and quMn, which is a great misde- 
meanor ; and yet tha punishment appointed to 
t>a indicted by th« lajd uatuie, is but the 
pillory, or a fine of 1001. And the said sUiute 
by the uatute of I Elia. c 16, was extended to 
her olao, which statute now by bar death is ex~ 
pLTed : which I pray may be obtened, 1 S Elii. 
cap. 1, aeaiDst than who seditiously publish 
who are iba true beirs of tbe crown, tlut they 
■hnll be inuKisoaed for a year, &c And 13 
^iz. c. S, theseililioas brinning in of the pope's 
btiUs i* made treason, wluch implies, that it 
was not so at tbe common law. 23 Eliz. c. 3. 
If any persoa shall devise, write, or print aqj 
book, containing any false, seditious and slnti- 
derous matter, (o the stirring np or moving of 
any rebeUion, Ike, evtrj such oSence shall bo 
judged felony. And in an ladictment upon the 
laid statute (which see Cuke's Entries, f. 35S, 
353.) there are the words—' rebellionem et se- 
ditionem morere;' and yet it is but felony, 35 
Elii. c. 1, miide against seditious sectaries. 
Also there are certain Books and Aullioriiies in 
law, which express the nature of (he word se- 
dition. Cuke's 4 Ilep, p. 13, [he.lord Cromwell's 
Case. In an action lor those words [' you like 
■ of those that luaintun seditions against the 
' queen's proceedinis'j the defendant pleaded, 
Thatiie intended the maintenance of^ a sedi- 
tious sennon; and this was adjudged a good 
plea and justlEcatloo. From which it fuUows, 
that the seditious sennon mentioned in the de- 
claration, and the maintaining of sedition against 
die queen, is all of one signilicatlon ; for if 
they might haie been tak&i in a diSerent sense, 
the justilicalion had not been good. Philips 
and Badby's case, which is in Coke's 4 Rtu. 
p. 19, a, which was olijected by se^eant Berk- 
ley, makea strongly for me ; far there an action 
Upon the cue nai brought by a person for 



those words, ' Thou hast made a sedilims Nr> 
' mon, and moced the people to ledition this 
< day,' And nlihough it were there adja>lgad, 
that the action lay, y(t the renion of the Judg- 
meut is observable, which was, because tbe 
words scondaiiie tb« plaintiff in his profesikm ; 
which iiu^v, tluit if they had not scandaltied' 
bill) in hii ptofetsioD, no action would kite 
Inin. And ordinary w<.rds, if ihcy scandalliei 
iKian in tt> piolesMua, are actionable; «t to 
say to « Judge, that he is a oirrupt mas ; or to 
'a Merchant, that be is « bankrupt; allbonghif 
tliey were spoken to another man, tiley wookl 
not liear anactini. Ami aliliiiugh tlia Book 
say, that no <ct followed there; vet If the nat- 
ter objected liad been ireason, the very nil! 
had. been punlh.ible, and, by consequence, a 
great slander. But It is ohairrved, that wonls 
which imply an iDciti>atii>n unW tn sedition, are 
not actionable, as ' seditious knnve;' but iudl- 
nntion to treason is treason, therefore words 
wluch imply it are actionable. And also foi 
divers words an action upon the cnse will lie, 
which induce not treftson or telony ; as Gic 
calling a woman wbore, by wliicli six loaeth 
her marriage, and such like. Then seditina is 
no oRence in Itself, but the aggravation of an 
oSence ; and no indictment, as I hare said 
afore, was ever seen of this singly by itself. THn. 
21 E. 3, r<^t. S3. Sir John Garbut's caM, which 
was ptit bcfirre by Air. Mason; the indicunest 
was in prejudice of bis crown, and in manitot 
sedition ; and yet the ofietice there wis bat 
a robbery. It is true, that upon hii amu^ 
ment he stood mute, thereforo tbe Roll is, that 
he was put to penance, that is, lo etrong aoit 
liardpain;uid this proves, that it was not Trts- 
son i for if a man arraigned of treason itaod 
mute, yet the usual judcinent of treason siail 
be given on him. And it is true also, tl«t he 
cannot have his cletvy, because intitUalar mt- 
mm was , in ihe indictment; wbich if it was, 
outs the party of its cler)ry, until the Statute of 
4 IL 4, c. S, US is observed in Coke's'!! Rep. 
p. 39. Aleiander Poultcr's Case.' And upon 
the same UoU of 31 £. 3, tliere are IburDtlier 
indictments of the same nature, where trdili- 
ati is contained in them. AncKi 1585. Qumd 
Elizabeth sent a Letter, which I have leen, by 
the hands of Ihe noble anliquary sir KoUit 
Cotton, to the mayor of London, for the sup- 
pressiog of divers seditious Libels uhicli were 
published against her princely government; 
and yet in the conclusion of the Letter it ip- 

Girs, that they. were only against the earl of 
iceacer, and diis was to be puUljhed oaly by 
proclnmation in London. 

5H. 4, m. ll.Bud.13, theenrlnf Northnm- 
berland preferred a Petition to tbe king in par- 
liament, in which he cootessetb, that he Md 
not kept his majesty's laws as a liege subject ; 
and alio confesseib the gathering of power, and 
tbe givinK of liberties: wlierefore he petiiiwied 
the worJiipofthe king (for so are tiie •rords) 
for his grace. The ktoe, upon this Petition, 
deinamlM tbe opinion of tbe lonb of parha- 
tdent, and of the judgef ■iiiihint, if aoj tbof 

Goo;;lc 



H7] SFATETUAXS, iCuAKMl \92»,—Mdcilkri,enmHaiea»Corpia. [3S9 



ewUiaad wnbia tbe uid Petitiin ««ni tren- 
MD, M so-; Bnil it was reiolvvd by tlitm a)), 
ihu notting, a* it is inaitir>ni;d in tiie ^hliI IV 
titiaD, mw Ti«Bs«H, but great MinlemeaDnn ; 
mJjBlinilT. Ihough not fjllj there inemioiicd, 
it wM ■ fttM reb^ioQ and inBuriectiQn. But 
tirf (djudfjed iccording to ihe inid |ietiuoii, na 
jmi an now in judRe upon ilie Kelarn as it is 
■wta lisie. Id Uich. 3S Eliz. Caivdrj's Cnsr, 
Cob'i Sftb Report, p. 1. Sfditiun and Schism 
re itKfiiitd; ai Scliism is a sepsrnlioii from 



ijof liia Church, to Sedili 



•'Ff 



ntico froB the aaitj of the Common wrBlih. 
ltd an Author says. That ■ teditiaus person 
i&n from a schismatic, becanse the one op- 
fSKtfa the ^iritnal troth, -the ether the leni- 
Mnli andasScbtiTnof iisell'i* not Heresy, sn 
Stdin«D without other lu^uncts is Lot Treason, 
facton, r. 112, IIS, 118. hath been objected, 
itat be makes sedition trvnon : I will grant to 
lifm, Hcngh^ni alan, wbo is tn the smne pur- 
foss : far ill those Dot^s it is callt-d, ■ Seditia 
'regiiet ragni,' To ibeoi I answer, 1. Thnt 
ikef ars fthuere. For what signified ■ sedttio 
'iegii,'or 'lumnltas regis f Shall it b« the 
BBe thini in sense with ' seditio contra re- 
'tm}' It seen>rlhat the said authors neither 
mtanber law nor languafce. 3. Although they 
nkon teditioa amongst the crime Iteia tuajn- 
Wit, yet that is nut to be regarded ; fur tbey 
veoinnlete Authors, and are not eHteenied as 
Ntkrt in o jr law, as ii is in It. 956, and Coke 
1. 35, hot tbey mny lie used for ornamenr, and 
thy are good marks to shew to us how the law 
•tithtn taken, but not to declare bow the law 
iisl ^ ilay ; they are no bbdiag 'authnrity ; 
mdirihey be, yet we have tbem on our side 
Htw^: for in his 14th book, GlanvLle says, 
Tjnt a man aocated of ftudi a crine shall 'be 
Ultd, and that the accoser thai! give pledget. 
MBracvtn tays, That if no accuser appears 
Aty tbaJI be set «t liberty. And Heugliaa 
■wbont anonaiil the crimes Uag rntatit/itit, ihe 
teach of the peace, and so does Glan*ile alin. 
Hctii, who WHS a fullower of 'Bracton, and 
Masctibt* much verbatim out of liim, cnlU 
Wition, ' Seductionera' of the lord the king. 
Aid It Edw. 1, tbe statute of Rutland, which 
pncribes lawt for Wales, enacts, that the 
<^f (hall inquire in hit turn, ' tie seduetori- 
*bm donini regis;' and it is. not apparent, 
*hnher be intended those which seduce the 
iia;nr his people. And in latter cimes, Sedilio 
■ odled Stdutia. In tbe time of Hen. T, tbe. 
Mri sTNoftbDmberlaDd, being a gneat and po- 
int peer, and the kino standing in awe of hun, 
natnl hiin, with 34 others of ^at qaality, to 
**(tr into as obligation of 3U,000f. (which ob- 
Iplion it in the hands of sir Boberl Cotton) 
ntd him, That if the said earl knew Treason, 
Sadntion, Jots, &e. to be intended to the ktn^ 
lh« he should reveal it. S. Also ' cHmen 
'has majeataiit,' which it the phrase of the 
Cnil Law,'it more general than Treason ; and 
^oU aathan which baye been i^ited macb, 
Mbw die GtW Law, which bath this expres- 
Ma; and ttdition by tbe Cifil Xa" i* Irettton. 
T«1- III. 



of Justices,' the principal copy where<jf is in 
llcunet-Cotlrge library in Canibridge, and ihera 
is also Bcojiy ill LiDcolii't-Inn librvy; nor 
Bri-.lon in his book, who writ in tbe name of 
the king, hare not the word Sediiio in them. 
And I Bttiriii confidently, that Ibire cannot bt 
■hewn any record, Ixiuk, or statule, after ibe 
making the otatata of 35 Kdw 3, in ubich ,!!ie- 
^tio it taken as a capital offence. And yet 
the.'Mirrour of Justices' reckoita up several 
kindi of Trenton, which he divides into Tree- 
sons against tha celettial or terrestrial majesty ; 



of A U. S, Trial S4, is to be undetslood, which 
■ays. That a miscreant diall forfeit his lands, 
because it is a kind of treason). And also hA 
■hews divers Treasons against the king, as, Tha 
(teRowering of the king s elilekt daug]it«r, &c. 
butnota word of Sedition. But admit, that Se*. 
dition imports a greater ofK^nce than tumult, 

£'t there is 00 colour to sav, that it ia treason ; 
r 25 Edw. 3, is a flat bar '(that I may use iht 
loiier-Teinple phrase) to any thing tn be irea- 
son, which is not contained in it, unlest it be 
niade treason by any tpeeial act afterwards; 
and 35 Edw, 3, does not make St treason. 
Stamford cites Glanville, and Bmctoti, and 
other ancient books, to shew « hat was treasoit 
before the said statute, and what not : and hi 
says, that it was a great doubt what thdl be 
caLed ireasoD ; ■aviiig (hat all a^ec.'tliat any 
thing that tends to the deiilH of the kins wat 
treason. 3djy, Now examine the words^ — : 
' against us' — tboie wortla make not the criint 
more beinoos, it the case is. I agree, that if 
tlic wnrds had been, — '.Sedition to take away 
' the life of the king — it would have been trea- 
son ; yea, tbe very thought of treason is trea- 
son, (though none can judgeibereof till it fae 
produced in act) 10 II. 6, 47. b. hy Newton; 
13 Jac. B. Jl.'JoIin Owen's case, the writing of 
a letter, whereby he intended the death uF the 
king, was treason ; but it is nut eipresoed, that 
the raiiiag of this sedition wii with such intent, 
whereby this differs fi^m all the cases which 
cnu be put, m which tiiere is such au iotenl of 
the death of the king. Also this raising of se- 
dition against as, shall not be intended treason ; 
Ibr if it had been to, tbe king would have so ei- 
presaed it by the word Treason : for, ns in his graci- 
ous disposition, hewill not extend a fault beyond 
the magnitude thereof, so he will give to every 
offence the true and genuine name. If the re- 
tarn had been — ' against our persoi^ — it had 
been more certain, that it concerned the king 
immediately ; this m:iy he against any point of 
his government. And the proper and natural 
signification of the wonts,—' Bgninsi us'--is at 
much OS, against our nuthoritv, our soperinteti' 
dency, agaratt our peace, crown and dignity. 



• See FortescuB, f. 115, the which was not 
cited ; there, never sedition, ttrif^ot noniuir 



ift9} STATE THlAtS, 5 Chauk L ifiM. 
Kliicb are the uaua] irord* in eT«>7 iiiclictniuit 
ot' felony. Ever; breacli of the pence ii 
against ihe king. The usual Return upon 
every ordinary writ out of Cliis conrt i>, thai 
the party be before Vt; and cont^empt lu this 
court ia, coQteinpC againit U» ; and it is in the 
nature o( tedilion to the king. Contempts to 
tlie court of Siar-Cbamlter are coniempu 
■gainst Us; and uJKiii them, commiasiont of 
lebellion issue : and if tlie parties are broniht 
in upiin soch commissions, yet they ara bailable 
until their conviction. Tlie kiiig stitea bimielf. 
Us, in writs; mid every disobedience to any 
writ may be said, ' Sedition against Us.' Routs, 
ciots, ill^al Bswdiblie*, Duy hsII be said and 
eailed, ■ Sediiion agaiiitt Us :' and for such of- 
feiicei, a man shall not be restrained of his li- 
beriy upon an ' it may be.' Such a Ufturu is 
Decessary, by nbidi llie court may be truly in- 
tbrmed of tlie oSence. Far tlie writ of Uid>e» 
Corpus it, to submit and receive wiiat the coiitt 
ihall ordain. And this t^tuin of this nature i) 
' not to he compared to writs, which are genetal, 
Aud make a brief nitmitioD of the oiatcer, and 
arv pursued and eiplained by subsequent de- 
clarations. And yet I urge not, ihnt the »> 
turn oi^lit to be as certain as an indictment; 
for aib ludictment of Murder is not ffiod, if it 
lack the word murdimtit. But (he return upon 
an Habeas Carpus, q. d. inler/ecif I, S. upon 
prepensed malice, is good ; for the nature of the 
tluug is ex pressed,, altbougti tlie FbrniaL word be 
-wanting ; but out of ihe ileturu, the eulutaace 
of tlie offence ought always to appear, whicli 
appears not hcie. But it hath been laid by 
the oth^ side, Thai let ihc cause in the return 
be ■* it will, jei- it is not irarcrsabla, H. 6, 
54. and 1 confess it. But w Coke'^ 11 Uep, 
p. 93. Jumei Bagg't CaseJs, tlie return ought 
to have certainly to much in it, that, if it be 
blse, tlie parij grieved may hare his action 
upon the case. And the gtievance complained 
of in the Petition of Kighl \f, Tliat upon luil 
ieturn no cause was ceniSed, that is, no lucl 
cause upon which any indictment might bi 
dnkwn up ; for we never understand, that the 
party shall be tried upon the U. Corpus, I 
iluit upon the matter contained wiiliin it .. 
Indictment sliall be made, and lie shall have 
tis trial upon it. And yet it Is dear, and it 
hath been agreed of all hands, in tlie argument 
of the grand H. Corpus, Mich. 3 Car. in this 
court, that if the c.\use be certified upon th 
return of the H. Corpus, that the court ma 
jiidj(c of the lc-galit;r bf that cause. 2. Con 
sider the parts of this Return, as they are coiu 
Bled togeuier, — ' for notable coot^ipu by bim 
•committed against our self and our govern' 
' nieot, and for stirring up of sedition against 
.' Us.' — Upon the entire Ileiiini, tlie kiagjuii 
Sedition vith notable Contempts; so that it 
g* much as if be liad s&id, thai Sedition is or.. 
of the notable contcinpis meuti^ined in ihe first 
port i.f the Return, lO that he makes ii but a 
sonteinpt. Fur Clx' genenhiy and iuceriuintv 
of theReturn, Ireli-r inytelf to the cases put hv 
Mr, AskjWid I will not wbv« aiiy of tbttii. 



. — Frotecdu^^iAM Wm.Slratd,aq. [900 
True it is, if the Retom bad been, that it was 
for treason, he bad uot been ba^iible but by 
the discretion.of the court, and such retaru 
would liate been good; but it is not so of Se- 
dition. • Gard. 167. treason is applied to m 
petty offence, to the breach of trust by a ptOT' 
duin in Socage ; but it is not treason. And ao 
Sedition is oifar less nature ibaa Treaion,'aiid 
is oftentimes taken of « trespass ; it ii not 
treason of itself, nor ttiUtiati was never used 
in an Indictment of Treason. It was not 
Treason be&ire tlie aS of Edv. 3, nor can it be 
treason ; for 35 £dw. 3, is a flat bar (as 1 hare 
soid before) ta oil other offeoces to be treaaon. 



nature thqn sedition is, which ore no Treason, 
OS Insurrections, &c. which see in the statute 
11 H. T, c. 7. SU. S,c. 9. ell.G.c. 14. 5R.a, 
c. 6. IT K. 8, c. 8. And by 3 and 4 E. 6, 
c. 5, the assembly of twelve pcrMOS to attempt 
the alteration of any law, and the contiouance- 
together by the space of an hour, beii^ cwn- 
manded t<i return, is made treason ; which act 
was continued by the Statute of 1 Mar. c. 13, 
and 1. Eiiz. c. 16. but now ig eipired bv her 
death, and is not now in force, (ulthoug^ the 
contrary be conceived bv some) wbidi T pray 
may be well observed. Sy the Statute of 14 
Elii. c, 1, reljcUinus taking ofUia Castles of the 
king is made Treason, if tbey be not delivered, 
&c. vrhicU sheivs clearly, that such taking of 
Castles in its uaiure was nut treason. But the 
■aid Statute is now fipired ; and also all sta-> 
tuies, ciealing new Treasons, are now tqicaled. 
But, for a conclusion of this part of my aigo- 
incnC, I will cite a case, which I think express 
in tho point, or more strong than the case in 
oueatioii :. and it was M. 9,lu. 3, roll 39, B: B. 
Peter Russel's Case ; he wns committed to pri- 
son by tbe Deputy-Justice of North- Wales, W~ 

of Sedition, 



accused by one William Sotynva 
nd other ttungs touching the king ; 
And hereupon a Commisainn issued out of tho 
Chancery, to enquire, if tbe said Peter Rusael 
behaved himself well tit seditiiiusty: against tbft 
kiog ; and by the inquisition it was {aan6, Itiat 
be behaved himtelfoelL And, upon an Ilaben 
Corpus out of this court, his body was Tetumrad, 
but uo cause. Bat tlie said iDquisiiion was- 
brought hither out oCChancery,and for that no 
cause of his caption was retimed, lie prayed 
jJelivery; battue court would nut delim' him, 
till it knew the cause of bis cOmmitoient : 
Therefore, taking no regard of the said inquiai- 
tion, tbey now send a Writ to the noo justice 
of Wales, 10 cerdfy tbe cause of bis conmiit- 
ment. And- thereupon he miide this retnm, 
Tliat the aforesaid Peter Russel was taken, 
because one Willinoi Solynian sbaiged him, 
that be had wmmitied divers Seditiont against 
the lord the king; and for thai cause he was 
detained, and for no uther. And because .tbe- 
Returu mentions nut what Sedition in special, be 
lyas bailed, but not discharged. And I dcbire 
the bailment of tbe prisoner only, and not hit 



Kl] STATE TttlALS, SCharluI. 16 

iAitnaee. 1 dfsire that ihe Caie be tieil 
obKired. la the said cue, there ura* an ac- 
m] Sedition agaiDst (ha kini;; tiers is onl^rn 
lUmniup ofseditiou. Tlie wordi of the said 
Awud *[«, ' videtur coria ;' irhicb are tbe lo- 
loan irordi of ■ Jud|i;ment, ^ven upoD gjNAt 
ddibtratioD. There it wa»— ' for other tiling* 
' CDaeeming m' — This >• oil one as if he btd 
Mid, — ' &r other things against us' — Concern- 
iig tiic king, and, agaiast the king, ar« all one, 
u aMcan bj 95 E. 3, c. 4, lie Clero, StHmf. 
114, Vtema. 1, c. 15. Bracton, f. 110, 14 Elii. 
c 1. And the words of the Judgment in the 
nidCase, were not ' dimittitm' ' ideo diautteu- 
' <ht«,' which impl; the tight of the party to be 
bulcd. The said case in Mime things was more 
jnrlicular than out casr, and mure Urosg; for 
ibeic was an accuser to boot, which wants 
in wu ca«e. There, true it is, that ii« 
«is committed bj the Justice ofWuiet, and 
fare bj the king tiimself; but this makes 
u dlSerence, as to this Court; for, be the 
tunmilmeiit by tlie kiug hinualf, or by any 
Dtb«r, if it be not ujton juni canse, the partj 
atj be baited in this court. And for the in- 
tjuiiition, which is mentioned, it was no trial in 
lti«cut; nor did the aourt giTs any regard 
ihctrCo. To detain tb« priiolier by tbe com- 
Biud of tbe king singly, is against the L'etition 
*f ttigbl; but it being coupled with tbe cause, 
lltg cime ii to be considered, and tbe truth of 
tk cause is to be intended, as well where it, is 
DOitiMied to be by an infehonr Judge, a* 
wboe b> the king himself, for it it tmver^ble 
aeiiher in the one nor other. And SS II. 8, 
roll 3T, B. H. and 1 H. B, roll 8. Harrison's 
Caw, resolved. That a man committed by ths 
(<mmaudofth«kingi*baitahle. And 33 Eliz. 
it wu resolved by all tbe Ju!>ticei of Eagland, 
■hich I have viewed in Chief-Justice Ander- 
mb'i Book, under his own hand, and it was 
Frodnced in parliameut, That all men commit- 
iH by the privy-council are bailable, if tiie com- 
nitiDeat be not for Higli-Trenson. In all cases 
of canmitment, an accuser is understood. Sup- 

Kthat the accusation mentione<1 in Russel's 
of Sedition, had been an accusatioo uf 
Treuon, then the. Judges ought not to bare 
htiled him of ligbt, and no man will sny, but 
llat the said accusation was a good cause to 
rammit him. But (he discovery of the offence 

^k to be afterward in an iadictmeDt. 
'onrthly, I com^-to the Objections whioh 
kne been made op tbe contrary. 

1. It was objected. That tills was a case of 
ptu coasequeace; T cmitMt it, but this conao- 
<|Kace is oot to tbe lung; fiir if it be truly 
treason, then they might have ratomed trsason, 
■Ddthaothepitity wasootto be bailed of right, 
tSl there ibould he a feilure of proaeouiion ; ■* 
«u lately la Idelvin'i Case, wbii was bailed for 
hick orjKDsecuiiun; ibe retuni bciag far High' 

I. It was objected that there cau be no cou- 
nRion, at ibis case is, therefore titere ought lo 
te coercive power to restrain the prisoner. 
'Hiit is itrange newt to me, tltbt there tball be 



9.— and odttrt, o 



ft Ifoieu CorpvM. l3Ct 
1 cannot be con- 



any offence fi>r which a 

victed, ^nd if there c 

bence follow;, that there ii no ofltnce; and if 

there be no offence, there ought liy consequence 

to be no imprisonmeiit. 

3. The cuse of 14 H: 7, 8, hath been objects 
ed, that a Jn»tice of Peace may cominit rint^* 
witbbut bail. 1 confess It, fur this is by forca 
of a statute uliicb ordains it. 

4. Ithatfa been objected, Thatifanliouie be 
on fire, it i* lawful to pulldown the odgbbour'* 
house, for the prevention of furtliec mischief; 
and the cases of %<l Ass. and I'l £. 4. tlml every 
man mayjustifr tbe coercion ofa mad-man. I 
ansiTer,'Tliat these cases are true, as of iierrt* 
sily, and no other evasion : but here, bail it 
profferied, which is, body for body. Fire i* 
swift, end cBDDot be punislied, and no cautiok 
can be obtained thereof But observe the true 
inference and contequeoce of iliit nrguuient ; 
If my house be oh lire, my neighbour's must I « 
pullM down ; Mr. Selden is s^itious, ergo Mr. 
Herbert, his neighbour, must be ImprisonMl 

5. It hiitb been objected i>ut of Br. Treason, 
34. 1 Mxr. That the said Stnlute of 25 £. 3; 
i* token largely, and that the detaining of a 
Castle or fortress is TreHSon. Tu ilits I answer, 
that the bare detaiiiii^ of a Cnttle is not 'I'ren- 
■on, unless it be Wib inteotion of tbe death of 
the king ; but the taking of a Cnstle is treason. 
And tliecase there meant by Brook, is Consia- 
ble'sCuae, Dy. 128. And Iconfcss, 13 Eliz. 
Dy. 898, Dr. Story's Cnst*, (hat conspiracy M 
invade I&e kingdom, is I'rcason ; for this cannot 
be aithnut great danger of the deaUi of the 
liing ; ibr, ' urma tencuti, omnia dat qoi just* 
' iiegat.' And all (hose lodictmenta were, that 
tliey intended tbe death of the king; but no 



S. It hath been objec 
out ofthe Petition of Right, because b this re- 
turn tbeie is a cause shewed. Bui tiie grievance 
wliereilpon the Petition of Right was frasncd, 
was,wbetc no cau^ was returned. It is true, 
that the grievance goes no forther, but where no 
cause was returned ; for that was the grievance 
Ht tliat time. But the words of the PeutioB 
of Right are further, ■ nitJiaut being chnrged 



eaase ought to be contained in the Return, 
nllich being put into an Indictment, (he parly 
may have his Answer thereto. 

1. It was etjected. That the Return shall 
not be constracd and eapounded by iractioDS. 
I answer, That we need dot makesuch an .-ex- 
puution; for the joint construction thereof 
i«ake» more for u^ than tlie several, as is 
shewed btfore. 

8. That a general Return is saScient, and it 
need not have terms of art in it, as an indict- 



* See Shower's Mngistracy of England vindi- 
cated ; wliich will be found at tlie end uf tbe . 
Trial of Lord Uus>el: ^.n. 16B3. 'See also sir 
John Hawles's Reply to the Magistral:; of Eng- 
ImkI vindicRted, p. 30, 



968] STATE TKIAI3. JChabluL les^^-PtoeMk^ i^mial Wm. Stroud; aq. [AH 

die wlf'tame ; iind if the^ be lli« Mun« 
offence, then die aedition ber« mtenrled ii iMt 
TmiBoi), and ao the part; ii bulible. 9. Thii 
prnoiier wai ready at ihii bar the ItM term, 
Hnd here was a griLnd-mrj at bar Hie l<uk 
tem, and here nras tbe king's couniel preMtnr, 
n-ho are mott fraichfiil fur tlie kill); ; and jet a* 
indictmcm was nnt prcrerred loihetn agakiK 
lIiis priflODer. WhicDihinp iiuhKeme to bv 
ofopinion, that ifae o3ence here mentioiwd W 
this Return is not TivsHin, or so great ti is 
precendGd oa the other aide. I wiH r«incnibier 
Due case which perhaps may be objected, (aad 
yet I think they will not object it) and so co»- 
clade. 11 It. 9, Parllameiit Holl 14. in tha 
printed stalate, c. 3, and 5. where it appear^ 



ment ou^it to have. For answer I confess it ; 
bat 1 uLiirin, as nboTe, tliat n retuin iiu|;tic to 
be so piirticulnr, that the nature ol'the oflence 
ougbi lo nppear out of it : and il is not lo be 
coinpareil to general Wnts, as ' ApostatA capi- 
endo, Idiiitfl exniuinatido, Leprmo amnTeiiiJa,' 
and the lik<.': for those writi are good enoufjli, 
because they contain llie very iitatter. And 
although it liath been said, that tlieie are two 
kinds ul' lepers, yet I never lieard hut of one: 
and the Writ, ■ de liKrctieo combareodo,' is 
geTie:^!, and good, became it is but a writ uf 
ei:ecutiun upon a Judgment gi>en by (lis spi- 
ritual power. Bitt because they might not 



neddie with tlie bkx>d of 
U by the secular poi 






I, the 



0. It hath been obiecled,out of 30 An. 
19. that the kln| houM liit\. 






Ranged for bunfjing into En^lMtd llie Dutli of 
the pope. But the Book answers itself, for be 
was not drawn and linngeil. 

10. The Stattitc of Waitinin. 1, c. 1.^. was 
objected. But as oft as ihat Statute is ob- 
jerted, I will altays cry oul, ' The Petition of 
' Right, The Petition of Ri^t Y ns the king of 
France cried out no'hing hut France, France ! 
when all (he ievemi dominion) of the king of 
^win were objected to bicn. 

11. A curious diwinciiun hatb tjeen taken 
by Serjeant Davanport, betctcen Btirring to 
Sedition, and stirring t^ Sedition ; for the tiret 
implies an ioLlinatioa only to do it, the second 
ivtplies an aet done. But this is too nicr, for 
if a mnasiir upSedltioo, or to Sedition, ifii be 
with intention of ths death of the king, the one 
mad the other is Treuon. 

13. The opinion of Fortfscue in 31 U. 6, 
10. h. bath been objected. That for an oQence 
done to tbe court, ■ msa way be committed 
before conviction. To this I answer, 1. Tliat 
tbe BiK>k does not say, that he ihall bo com- 
mitted without bail. 9. llie oHence bein^ 
donein face of the court, the very view of the 

IS. There wb« objected the H of Edw. 3, 
tS. Sir Thomas Filchet's Case, who, for gnin^ 
knoed in the palace, was coniinitleU hy this 
eoivt without bail or mlunprizei which seems 
to be thestron^^st and hardest cs so ih:it hnth 
bean obiected. But the answer to it is dear, 
and aatl.'niable ; for tbe statute of 3 E. 3, c. 3. 
il, Tliat if anv one cone armed before the Jns- 
ticCE, he sliail forleit his armour, and shall be 
imfrrisoned during the kinj^a pleasure; so 
by the eipress pnrview of the statute, auch a 
man is not bai table. So my ooncluKion rem 
firm, ootwitbatanditig any of those objecti 
That llie prisoner here, being committed be- 
fore conviction of any oBimce, (it being 
poniblo to underatnnc) this oAeuce treasoi _ 
bailiUe; and that^ie is bailable here, I will 
offer t>»o other reasona; 1. The return is here 
fbr Sedition ; and there it an inforuiation 
the Star-cbambei aiaiost the prisoner, (or (edi- 
lioiiS-; practices ageiuat ibe kinv and his govern- 
OiTOt. J willuotafiinn, that they are t^samt 
ofcnce, hot there ii soise piDhability that tbcy 



jf lb« 
king to Tstulian and Belknap, the t 
Justices, and to the other juatices: one oC 
which questions was, bow ibey are to be pu- 
nished, who resiiled the king in eierciring hi* 
royal power, ltd And the answer of th« 
Judges waa, nim ■coee, that they are lo he po' 
niibed as traitors ; and 81 R. S, c. SI. this opi- 
Dion was confirmed, But allerwardsin 1 H.4, 
c. 3. and 4, and 1 II, 4, in the Pailiainent- 
RoU, n. 06, 87, the Jadges were questioned, 
fortheiropiaion,in pulraBient. They answered. 
That ihey were threatened and enforced to 
give this opinion, and that they were in itutb 
of ibe coatrary opieion. And Belknap said. 
That he acqnointed and protested lo uie cart 
of Kent nforehand^ that hia opinion was always 
10 the contrary. But the pariiament wa»not 
content with these excuses, but they were all 
adjudged Traitora ; and Tresilian's e»d is 
known to nit, and Belknap was banished; for 
liis wife, in 9 H. 4, bronght a writ, without 
namtiu her imsband, becnuse be waa banished. 
And the said Statute of 21 R. S, was repeiiletl. 
Therefore upon the whole mnttar I codcIu^, 
that the prisoner ongbt to be bailed. 

On the same day, air Mile* Ilobart Mid 
Beojnmin Vulentine,and Denzil [lol I es, esquire* 
were at the bar, ubltu an Habeas Corpui di- 
rected til the aeveral priaoni ; and their counsel 
wns ready at the' bar to have argued the caae 
for tliem also : but because the same Return 
was made as above, ibey said, That all of 
them wnuld rely upon this Ari^uineut made bi 
Mr. Uttlttun. 

JtfF. Sflitea'i AanrHEST,* 
-- (,. ----- 

eintdnm el 

King's-bench to the Lieuleaant of tba Tower, 

he retuma, thatthe priMinerwHsfinteoilimiltcd ' 



* The Editor of Mr. ScMen's Works, in bit 
Preface to the thinl Volume, tavs, " Thtt n 
tbeS>batanceofBnAiigifm*nima^inhis(Mr. 
Sriden't) own cowt, and wbidi was prgaoancod 
by Mr. J.ittleton." But as there ia so ireaC a 
di3ei«nce between thsM, we leave the Reader 
tojnttgeofthat; and, asitcooMmt so grand* 
point ns thi Ijbcrtf of tte aottjcct, b«TO tbeie* 
Mrttitea toib. 



nGooglc 



KS] STATE T&lAl^ . 3 CexftLn I. ] 62a.— md ahtrt, m a* l^Aiai Coifia. [9GQL 

M fail cnUodj by B warrBnt of tbe Imh of the 
pnrjH:i)iu]cil, dated 4 Martii 9 Carob regit, 
Md recites the irafTanc wlierein tba kite's pica- 
aim Tor rbe c«miniUD*nk is ako ngnificd. And 
knbei, be. returm, that tke prison^ b d»- 
akted b* him, b; virtue i^ another warrant, 
ikamwri diiwed to him, undrr ihe kinufi 
«wn haml, dated the rdi of Hay foUowMg ; 
lAeitgi it i*«ignified, LhathewHtotalcEkBOfT- 
kdge, dMt the commitiDeDt wm ' for noUMe 
' EosicBpts comnined t^nst Oar SeV and 
' Oar GovenmenC, and for itirniig np of 8a&- 
' tMm egaioit U*,' with a conunand ta detain 
1^ oDDl hit nue*t]F'i pleatnra irara ianfaer 
laoan, &c. And w certifies cba coutt, *at 
tee ere tbe cansee of takii^ and deUuniog 
km, aad bring! in bk bodj according M tbe 
nit. And, whether upon this Return, the 
friMoar oi^bt to be delivered bj tbe coort, 
•^ ufficioit bul, IK renunded to the Tower, 
ktke qucAion i Thai it, gupposing the Return 
to be everj wv/ true (ae in all cotes it must be 
Mppoacd, when the qaestion arises upon a 
Rtorii), whetber there be mCcivnt cbbbc ei- 
Hetied in ii, fur which tbe prisoner ought to 
be reaapded ? Or, that the cause of th« com- 
■itment be aui^ (as it a eipressed in tbe 
ntnm) that be ooghc to be bailed t If there 
me M more in tlie cttte, but the lords, or the 
ki^i connDBod onlj, witboot farther cautc 
iknred of tha comtniiinent ; then it were dear, 
bj Ibt Declaration of both hoxtet of parlta- 
■eBt,*n(l the Antwer of bis nrnjeitf lo that 
Dtdaratioa, in tbe late Petition of Ri|;ht, that 
the prisoners ime to be remanded. And the 
abjectione tEiat totae bate made, oat of the 
fUtule of Wettminster, the firtt, c. 15. That 
penoDs committed by command of the kinc, 
•re Bot leplevianble, aitd out of Stamrortl, fuS. 
n. ks if he interpreced ' baibhte' (which in- 
deed he doth not, if he be obserred) to be un- 
4erstuodin that statute by ' rejJeTiiable,' and 
die like, nre directly against tbe very body of 
die Petidoa of Right, aod were so fully cleared 
i« tbe debates, oot of which the Petition of 
Right wui fraiDedftLat to dispate them again, 
nre but to qoettion what CDe w4x>te periia- 
■Mat had nlreadi rewilved on, as the certain 
SDd ettabiiahsd lur of th^ kingdom. Nor is 
iltisdy la diipote here again ibe general power 
tfcommilfDent, by (he lords or by the king 
kituelr. lliere i) a commitment in the case, 
ud there is a cause shewed of ihat commit- 
wnt, and of the detainer in prison ; and the 
^■■liiy of that cause only it iraly tbe vAe quea- 
lun; to the Matinn of which, th« oatire and 
come of hails upon afeaces, either returned 
(eoenlly upon Ilabeas Corpus, or appearing 
■Mre specially upon indictoienls, it SMrtly to 
W first opened. All oifeneei, by the laws of 
Ae mdm, b«irig of two kinds : tl» fine, pa- 
iMaUebylossofjife ot limb; ihe second, by 
|nc, er sivne pecuniary mulct, or damage and 
iwpr it e Hment) or by one of tbem ; and those 
•fibe fiiat kind beii^ treaion, mnrder, felo- 
ninoriess iiMure, nd some more; and of 
tbe lecosd kind, bloodsheds, afirBy*, and other 



, If any prisoner stand committed 

(though before conviction) for treason ormuiw 
der; the Judges, for aught tppears in tb« 
Books, have not oAen used to let him to bail} 
unleti it have appealed to them, that there bun 
[CB either want of protecntion, or of evidence 
proceed, or that the proceeding through dit^ 
ability of the appellaot (in case of appe&), a* 
wbeii.beiaexeommonicate, isdelavMl; or that 
tba evidence ia slight, or some sutJi like cause. 
Ba ttrat in tbe btiiliitg upcm such offences of 
die highest nature, a kiAfl ofMiscretion, ratbat 
than a constant law, hath been eiercised, whM 
it stands wholly in^ffnent in the eye of th* 
court, whether the prisoner be guilty or not,* 
And according to tlwt, they often let to bail, 
detain in prison, or remand the prisoner. Alsd 
in Felonies of less natore; which being all, at 
those of ihe greatest nature, capital, and so the 
pmiishment of the sane ibove imprisonment, 
the imprisonment of the oSenders withont bMl, 
is nfily used ad taivani eutlediam, and cannot 
be uicd adptenam. But if > prisoner beloTa 
conviction, or somewhat tbnt supplies ■ cod> 
viction, (so therafure also lit enough before 
cunviction) stand committed for trespasses only, . 
as all offences of the second kind are, and are 

Eunishable only fay line and imprisonment, or 
yone oF them (in which case imprisonment is 
to be the highest part of his punishment, after 
conviction) ttiere,hy the constatlt coarse (unleas 
some svecial act ofparliarneiu be lo the con- 
pnrtlcuiar case) upon ofter of 
he court, he is to be bailed ; 
whiohagrees also with iilljustice and exactness 
of reason, thai so both the court may, by hit 
sureties and bail (to nbose care he is a-netr 
committtd) be Msured to have liim rendy at 
the day given him upon the bliil, to onswf r all 
proccedini! against him ; and he himself, having 
turfties that so undertake for his appearance, 
inay not lie compelled, before conviction, to 
endure t^at continually, ad cutlmiiani only, 
which is rhe fiigliesi part of what he is to sdW, 
after conviction, ad ptrwrm. So that in casci 
of imprisonment for olTences of the First kind, 
diners cireumstances raiEht h\; for which suffi- 
cient bail oSired might, according to the use, 
be refused by the court. But in cases of im~ 
prisonment for alienees of the second kind, 
sufficient bail, afTered before conviction, ought 
of common ri|ht to be accepted; saving still, 
where n special act of parliament altera iho 
htw in same piirticular case : but tliere is nu 
colour or pretJ-nce of any such aot coDreroing 
the case in question ; sn that we are to eia- 
mine it (for tiie point of bailing) only at ihn 

Tbe state then of Ihe'quenion is but thbi 
Whether llmt expresiion, ' for notable con- 

,< tempts against Our-self, and our govcminent, 
' Hfid for stirring up of sedition against Us,' da 






* Vide 9 Assis. pi. 9. 3 Assis. pi. 13. 43 Assit. 
p). 40. 3ft Assis. pi. 47. 4] Assis. pt. 14. SI 
i:dw. 4, ful. 95^ and 71 Brook, tit. Mainpiii« 
00 tmd 6S. 3 EUi.'Dyer, fol. 179, «, 



907] STATE TRIMS, SCaAtLZtl.AGW.—I'roeeediigit^aaalWm.Stroud.uq. [26S 

of offences xhu occur io our books ui cipnts 
definition, descriptioa or dedBcatioD uf it,' 
though it Dccura toiDeuines ai mingled with 
sonic other oSkicm, iwd iba adjecuve of it 
oftenenhui the substantive: Nor hath (kcre 
been tM found anj indictment or procwding 
upon iliecriaie of Sedition, bjikatnamcNDgl^rr 
•9 an oBenoa in Ian, cleaily eoou^ knoao bj- 
itsslC ' Unlawful aMembHes, routs, riots,coiD- 
' niotiant,'Brethe'oe*T«at,if nottliCTCry thinp 
that bjr other ntunes do, fbr the tnoit part, n- 

S«ss vrhat scditiotk is m our kirs. Vid. -3 
ea.7,foL l,et Broak,Biots»eta. Butour 
language, raUier than our lavs, hath receirad 
th« word from Iiatin, and thence hath in 
preamltles orK>tutn,and of indictments, mkk- 
times inserted it j m (hat miiiiDg an eipreoa 
exposition of the word in onr law, «e hava 
reason to seek for it first in the lan|i«^a 
whaoce we received it, and (hen in the use of 

Iti Latin, that which is nutinj, raising of 
tumult, Hssembling of anj' amea power, or 
conventicles, or the like, is sedition. Whence 
it is, that in the civil-law, ttditio et lumuUu» 
■re frequentlj joined; and coacitatorts ttdi- 
ttonit, aild actortt McJitienu, occur in the text of 
that law*, for such u stir up Sedition. And 
thence also teditia aililarif is used for a mutiny 
of the Soldien in the Arm;, in Tacitua and 
otben, and tliat for no more than the piiifew> 
ing themitelves against nnj command whatso- 
ever given hy the general. In this sense it ia 
used alao bj n lawjer of Ephesus, in the holy 
test, where Demetrius the «i)ver«raith Biiem^ 
bled the rest of his company against St. Paul, 
for pretiching against Diana. ' For we are' 
(Miiti he, speaking to appease the asseraUy) 
' even in jeopardy to be accused of this day's 
' Sedition, forasmuch as tliere is no cvise where- 
' by we may give a reason of this coQcourte of 
' people,' Acts tix. 40. In the same sense 
TertuUus, an orator and lBwyer,ple«ding against 
St. Paul at Csiarea, before Felii the goveiaor 
there, ' Wc liate found this man a mover of 
' Sedition amongst all the Jews throughaui the 
' world, and a diief maintainer of the sect of 
' the Naiarenn,''Acts xxiv. 5. And such like 
testimonies arc vary obvioas. In the sejf-stiua 
sense the word was received into our language, 
ai ive may see in that act of parliament against 
the LdUnrds, under H, 4, 9 11. 4, c. 15. The 
words Ihereare, ' That they taught openly knd 
' privily divers new doctrines, eonirary to tbe 
' faith and determinations of tlie holy church ; 
' and of lucb sect and wicked docXiine and 
< opioioos they make onkwliil conventicle* sjid 
' confederacies, they bold end exercise school!, 
they make and write books, they do wickedW ' 
instruct and infarm people.' ' Et ad aedt- 
ttonein sen insurreciionem excitant ijuantum 
pouuut, et magaas dissentiones et dtviiionea 
■ m popolo faciunt.' Itoc. Pari, ft U. 4, n. 48, 

* ff. ad I. Julian majestatia, lib. I. Sc tit. ad 
leg. Jul. da ri publ. I. S, 6k. C. tit. dc ted^ 
tiosia, 1. 1. & S. 



' denote any offence of the first kind ; Which, if 
it do not, or so do not, ns that the court may 
by the words of it be sufficiently inforaied that 
it is some olFeiice, at least, of the fitst kind ; 
the bail, in this case, ought to be accepted. 
The oSences in tbe return being two; first, 
* notable contempts,' uid then ■ stirring of 



bJI Contempli, of what kind soever, that ar 
punishable by tbe laws of the realm, ar 
' asBinst thekingfandbisjovernmenti'immedi 
ately or mediately. And altbougb the latitude 
of them be such, as that tome may vaally ex< 
ceed others; yet they are all, as Contempts, 
only tMSpasses, &c. puiusbable'ouly by fine or 
imprisonment, or by both, but not until con- 
viction of the parties (as neither are other like 
offences), unless tbe contempt be in the face 
of some coort, agaiuit wbicD it is committed, 
wbich supplies a coavictioTi. Now in this case, 
the contempts ore only expressed in a g^ns- 
(ality, nnii no conviction appeurs or them. So 
that lor that part of the return, there can be 
no col|>ur why the bail aught not to be accept- 
ed. But nil the doubt of the case depends 
upon the second oHence; that is, < the stirring 
' up ofSeditioii against tbe kbg.' Which if it 
be an offence only of (he same bisd as Con- 
lempts are, or a mere trespass only to the king ; 
Of, if bv ih« words of the return, it nppears oot 
to the court to hp an offence of the dnt kind,. 
that is, either treason, or felony at leuit, (there 
being no conviction in the case) the prisoner 
ought to be hailed. For, unless the court be 
«!sureil, out of the words of the Return, that 
the prisoner stands committed for aume such 
. cause, for which be might not, of right, den 
his bail ; it is clear they ought to bail him. It 
rests therefore to examine tbe nature of tba 
o.Tence comprehended in those words ' stirring 
' op sedition against us.' If it be any thiog 
above what is trespass only, plainly it ma ' ' 
either treason or feloiiy. For felony, no 

Siretends that by tiiose words, any kind of 
elony is Co be undcrslooil. The question then 
roust be, whether the .' Stirling up sedition 
' against the king,' be treason or no ; that is 
high-treason, as all treason is that touchelfa tLe 
kiiig, as treason? For petit-treason, by the com- 
') felony, in regard of the king, and 



offeodar ; and ihcrefore the indictments of 
say ' felonicfe et proditorife.' 

In the consideration of the queuion tin 
slAtetl, first, tbe use. of the word Sedi 






irlnn 






that received it out ef that lunguage, is to be 
examined ; and then what those words ' imniiist 
< us,' import. Out of both which, it will be 
easily concluded, that the offence, as it is ex- 
pressed in the return, although it be a great 
one, yet It ii only n trespass, and puoiskable 
by fine only or imprisonment, or both of them. 
For Seditign, and the gentrsl notion of it, we 
hive not either iu the division or explication 



„Go.nIc 



ttS] STATE TRIALS, 3 Crau-U I. IC29.— and othanj^ on im Uabeai Corpus. [370 



'And, u mach as the; uiRj, inciM «nd stir. 
' Atm to Sedition and tnsiuTeciion.and naketli 
'ETCXMrife end diiisioa omong- tlie people, 
' Ice' And nboat the beginning of queen 
Muj, Ml act of parliament was made agninac 
Sediiioiu Words and Rumoun; in the pream- 
ble whereof, ' Mditioiu and tUnderous newt' 
it nrDtioDed,' and ' seditioas and ilanderoui 

■ writing*, and person* iotendlng and praclisiag 
' tu move and itir leditioDB' (so it ii in Eastall 
a*d the Roll of pariiainent, not ' seditious,' as 
b tha Stalutes at latxe), ' discord, diasciuioti, 
ikI rebellion within diis realm,' 1 et 3.Pb)l. A 
Uar. S. And to the same purpose, an act of 
eiplanatJoD of tbe said act of queen Mat^ wai 
made in 1 Elii. c. 6, nberain niention also is of 
' bhe, seditious, and ilandeToai news, or tales,' 
igaioM the qoeen. As alto in ber 13th year, 
c t, a provision is. mode against ' contencioas 
' sod scdicioiis spreading abroad of titles to the 
' HFcesnon of tbe crown.' And in another Act 
sTtbe tame year, c. b, also the briogiag Bulls 
(ran Rome, ' to raise and Mir sedition,' is men- 
osurd in tbe preamble. And ia the 93rd jcar. 
Mother act SS Eltz. c. 9, was made with this 
title, ' Against sediliona word* and rumoun ul- 

■ leted against the nueen's most excellent ma- 
'jest;.' And in indictmeDis apon that statute 
cfthe Istand Ind of Philip and Mari, n* it was 
continuedin theactoftheSSrHEliz.; the part; 
udicted fer slanderous words, in deftmacion of 
lkei(iieen, is said to hare been ' machiirims et 
' iutoideas seditionem et rebellionnu infra hoc 
' tegntun Angtia moverr et suscitare,' and that 
'sdrisaie, et cum malitiosa intentione, contra 
' dictain dominun regjnam, et fejonice nt Felo 
' £cte domine regine nunc, 4)evisa*it et scriptsc 
' quasdam falsas, seditioMt, et scmdalosas ma- 
' terias, tie.' 34 Eli>. Coke, lib. iatrat. uidict- 
nent. fol. SiS, col. 3 and 355, whov tfa« title 
ii mivefened to tba act of 1 Eliz. cap. 3. 

In the lord Cromwdl's Case also, 90 Eliz.- 
Ct^ 4. in ael. de KtndalU, Sedilio is men- 
tJoued ' against tbe queen's pniceedings ;' and 
* sedilio doaiini regis, vel eiercittu sui,' in fiiac- 
tia, roL ti8, and ' seditio recni, val eiercitos,' 
ia Clanville, I. 14. c. 1, and ' seditio peraons 
'dmuini i^is vel exerdtus,' in Hedghain, c. S. 

Now, fur the sense of the words ' sedition,' 
mi' snlitious,' it will be most phiin, that in ell 
these placea, (except those old Books of Brac^ 
tBa,GlanviIle,aiiit Heifhani,th«ioterpietation 
at nbam haJb fittast place after the eiamina- 
■ion of the obiections oiade to proie sedition to 
he trsason) the; denoted in our language, and 
ia the Die of our laws, that received then 
tlwKC^t^h an offence as was not punisfaable 
(vilhout some special provision b; act of pai^ 
Ument] otherwise than b; Sdo and imprison- 
Mntat theubnost; and were reputed sing!;, 
W as words or names designing ' tumults, uu- 
' liwlni assemblies, routs, tiKtions or rebellions,' 
•piQsian;part of the established laws, or pub- 
lic commanda. Theretbreintbatactof 3Hen. 
4,oa[icemi^ the Lollards, the pnntshment of ' 
t^ thu tJhnded against the acts, and ' ivere 
' nicb Hincn of sedition 



th^l they should be imprisoned onl; b; virtue 
of that net, until purgation, if the; pureed them' 
selves; and imprisoned and fined after convic- 
tion, and detained in prison till ahjuratinn : and 
upon refusal to abjure, or upon relapse, to be 
burnt for heretics : but that act is repealed b; 
the 55 Hen, 8, c. 14. So, b; the acf of the l»l 
and Snd of Philip and Mar;, the fijst affenca 
□f speaking seditions and sbinderous words,' 
or njBiaun of the king or queen, wiu after con- 
vittlion, stanttint; on the pillot^, and loss of ears, 
(unless he redeemed tbcm b; the fine of 10(W.) 
and three months imprisonmeDt.' And if an;, 
from another's report, shall speak on; seditious 
and slanderoul news ofthe king and queen, he 
should, after coBviction,lose one ear,(or redeem 
it b; 100 marks) and have one month's impri- 
sonment: And that ■ if any should msliciouci; 

■ devise, or write an; book or writing, contain- 
^ ing an; false matter, clause or sentence, of 
' slander, reproach, and dishonour of the king 
' or queen, to aiienste the minds of the subjects 
' from ibeir dutiful obedience, or to the encou- 
' raging, stirring, or moving of an; insurrectioii 
' or rebellion within this realm ; or, if may pro- 
' cure an; such thing to be done (the sud of- 
' fence beuig not punishable b; tbe siatnte of 
' 35 of Edw. 3, or irenson) he should las* his . 
' right hand. And that the second offence of 
' them that were punishable b^ k>s* of ear or 

' ears, should be imprisoned during life, and Iom 
< of nil their goods and chattels.' This act of 
queen Mar; npired at her death, and agreeable 
to it wal that provision of the act of 1 £3ji. c.6, 
which extended the same to queen Elii. during 
ber l\6t; but there is no such law.at this da; in 
being. S<^ in that of ihe 13 of Eliz. c. 1, the 
GrstoSienceof' contentions and seditious spread- 

■ ing abroad of titles to the succession of tha 
' crown,' is poniibed by the imprisonment of 
one whole year, and tbe loss of half tbe oSend- 
er's goods, and the second olfence b; tbe pains 
of tt pmhioir^. The bringing in of BulUalso 
from Rome, to alienaie the mmds of the sub- 
jects from their dutiful obedience, and to raise 
and stir sedition and reiwilion, is raede high 
treason b; that other act of the sa 
which it t^>pears, that ' Stirling ti 
alone it in that very acttJearly mpposeo oi rar 
less nature. But tnat act is also expired. In 
that abo of the 23 of Elii. c £, the reuorteis of 
'seditions news or rumours' against the queen, 
was madelossof ears^Bi before;) or, that to be- 
redeemed at too', besides imprisonment of six 
months : and the reporters from another's 
mouth, to be ^lumsheJ according to that of t 
and g of Philip and Mary; saving, that tbe im- 
prisonment, by this act, is three months, and 
tbe second oflence is made felon;, and writing 
of any seihiiout matter, to the purposes in that 
act of queen Mary, is made felony, upon which 
act the indictmntts of felony be&re men- 
tioned, are grounded ; but that act also expired 
by the death of queen Eliz. 

in Noriblk,' for sayinSi ' 1^*' JO" li^e 






S71 ] STATE TttlALS, 5 Coaalu L 1 620.— Pnxxtdmgi tgaiiat Wm. Sinmd, aq. ItTt 

, i«e, but jrou like of then thu nvuntaiii sedi- .' depart ftod retire to their nirn habilattixii, 
-' •'- - ' *■- - ' " ' within one hour after couunand mwli! b]r tlie 

iheriflf, tome juBlice oFiha peace, orotlier such 
officer, in tliat liehKir, ihe ofeiice ihuulii be 
hFgh^treiuiKi. AndifwchpcisDnsasaeniblcd, 
to the pulling down of ditchei,or iKjiogopca 
iiicloHirei, or to the commitung of lODie SLich 
more oflimcet, retira not withia that cpice, 
that it ahall be Moay ia theon. Aad if any 
should inciia ludi psrauns i-i ruji luch act, by 
Bpealciiig, ringinj; a bell, Hjundiiig a trvinpei, 
tiring of beacon«, or the like; insomuch tbM 
~^hey remained tofetfaer after anj su:h com- 
■ maod as atbresaid bj the gpnce of an hov, 
' and Goranit any Mich act, as nfbreiaiil, it 
' ihould he tekay alio. And ibe peraoai> ao 
' assembled, and teaiiiiuinf; togeiber, to the 
' number ••( forty, hy the space of two konra, 
' are by the sane made traiion. And that it' 
' the aamber be above tno, nnd nnd«' lirelve, 
'that fith force of ntmi, uulaivfiilly, and of 
' tbeir own aiithorily, aswtnbled tor the casting 
' dowa of ditches, incloaures, anil dfrers uich 
' other things, their slaying together lifter sucb 
' comnaDd by the space of an boor, should ba 
'fuaislied by a year's imptisoDment, and Sua 
* and nuMom et the king's ptensure.' And it is 
also in the «ame Au ordained, ' That if any 
' peraon shall procure, move, or stir anv Mher 
' per^n, or persons, to arise, or make any 
' traitorous or rcb^ioui HSiinfaly, to the intent 
' to do any of the thines before- me otioned, it 
'should be felony. And further, lliat If any 
' person were spoken to, niowed, or riirred la 
' make any commotioa, imurrectioD, or unlaw- 
' fill asaemhiy for loy of (he intents faefinc- 
'' BiBiitioDetl, and did not tell it within twenty- 
' four hours aiterwaid, unless be have loSkieBC 
' eicuK) to tome head officcrwhere suchipeak- 
' ing were had, should suffer impiisonraent, un- 
' til he -were dncbaEgcd by three Justices ofthe 
' peace, whereof one lobe of ika qborum.' Tliis 
Act wa« to eodnre till ifae end of tlie iieit par- 
liament only, which vraa in T Edw. S,Btid tlien, 
cap. 11. it wai continued till the end of the 
neit wbkh was in 1 Mai. sess. t. wherein, c. 
la. it is repealed, and another of iJie same na- 
ture made. Both which shew most evidently, 
.that those unlawful assemblies, insurrections, 
commotions, and the like, which are plainly 
Seditiona, provided fur by iliose acts, were L<k> 
fere but tretpastes, punishable only by fine and 
imprisotmiBitl, That of the 1 Mar. seas. V. c. 
IS. is intituled, ' An Act i^ainst unlawful ami 
' rehelhous aKsmhlies,' where the claoae of iha 
privy-conaseUora (that was in the 3 & 4 Edw. 0,) 
IS omitted ; and the rest of tlic offence toucb- 
ing the altering of laws, is expressed, as in that 
ofEd. 6, MTiog that the crinw is made Moay, 
whereas it was treaaen by that of Ed. S. Tb> 
reat of that act of 1 Mar. is, for the mvst part, 
fureeable with that of Ed. 6, saviaft, that none 
of the oSencet are treason by this. acT, but 
f^ny at the most. And for the being ■ spoke« 
' to, or Btirrad to make 



tioes against ^ queen's proceediogi. 
though, in the report of the case, sedition grae- 
rally be called an open nud heinous crli|ie, and 
described to be at in the nature o( some great 
factious nssemhly, or not ; yet the tUfetutalit 
justiiles the worils, by thi9,thut tlic plaintiff aod 
he hod di^c^utie uf one that preached Etgaiost 
tho Book of CommoQ Prayer, and that in their 
thscouree/lie plaintiff said tu ihe detcndaot, ' I 

* Like not of thee :' To which lie replied, ' It is 
' ' DO murvel, for you like of them thiit maintain 

' sedition, (prxdict' seditiosam doctrinam innu; 
' endo) against the queen's proceediiiKs ;' and 
the justi&atiou allowed good. Whence it ap- 
pears dearly, that ' maintaiiii»g sedition,' geae- 
rally may be, such preaching of seditious doc- 
trine which is punishable only by the statute of 
1 Eliz. Clip. 1, by tine and imprieonraent. Out 
of all which eiauiples, it appears, that sedition, 
and acts seditiousljr dune, are of themselves 
singly no capital cnmcs, or other* ise puniiti- 
able than by fine' or imprisouracnt, or both ; 
tinleis by some special act of parliunent it be 
ordaiaed otherwise. And tu (xuifinn this tdso, 
we may obterra divers other statutes ; where 
louts, riots, rebellions, and iniurrcctioas (all 
which, of tlicmselresjif no trnitoraus attempt ap- 
pear,by some overtBct,are pun iibable but by line 
or imprisoButeat, unleu some sci of parliament 
•specially ordain a grettrr punlshmeat) have 
(pecial punishments appointed for them ; beiag 
at the common law but in the nature of trw- 
paSSCS. ' As in the If Rich. S, c. B. itkppeart, 
that in die ith year of the same kiog (which is 
5 Rich. 9, c 6. Stat. 1.) ■ outrageous assemblies 
' of the people against the king's dvniiy, and 

< his crown, and the laws of the land (as evary 

Cat riot i*) were ooade Treason; which act is 
g since repealed. Whence it is also very 
observable to thia puipote, that in tfro Acts of 
parliament, the one or tho 9 Hen. 5,c. 0. Stati 
1. and the other of the 8 lien, 6, e. 14. the 
simple word ■ rioia' (which it most known in 
the law, to this dsy, for seditious assemblies) is 
taken plainly as an expression sufficiently coni- 
prebondii^ assemblies of people, in grsat num- 
ber, in manner of insurrection, aod also tchel- 
huiS, as will aupear plainly, by comparing the 
preambles with tlie bodies of the same act*. 
And in 11 Hen. 7, c. 7. tor the puaiehRieiu of 
' luilawfol raising and leading of people, riots, 

< routs, and other unlawful utseinblies,' a form 
of proceeding is appointed ; wherein appears 
■lost plainly and expressly, that the punishment 
was only by fine and imuriaonment, and the act 
was to continue but till the next parliament, 
wheU'it eapired. Tbereftire also by the act of 
3 & 4 Edw. a, c. 5. entitled, < An Act ibr the 
' punishaant of unlawful asaembliea, and rising 

< of the king's subjects,' it nas ordaiaed, ■ That 
' if any peraooa, to the number of twelve, oi 
*aboie, being assembled together, shall iotend^ 

* witli force of arms, nnlawfiilly, and of their 
' own authority, to kill or imprison any of the 

< king's privy-coo nci I, or to alter or change any 
■ law* eatablisbtd by parbameat, and tbaU not 



Mary, the e 



ri3] STATE TRIALS, 5 Chablbs L 1029.-^4 others, m an Habeoi Corput. [274 



oulj for thrM months, ude» he be dischai]^ 
b-] three juitices of (lie pence, ai in that of £d. 
6. I'tiis of queen Mnry, vrns LepC on by con- 
tinuance onU, tVom one parliament to another, 
duriiq; lier liiue ; nnd in 1 £liz. c. 16. it oas 
si:ide [It continue during the life of queen EIrz. 
and at Iter death expired. To this purpose also 
■be Act of 14 Elii. c. 1. H obseirable j where, 
' aoLiirful practices, secret c;onspirticies and 
' devices, to take or soruriie any of the queen'a 
< fortiBed cnstJes, and the maticioas and rebel- 
' liouj inteut of surprizing, or tokins them, be- 
' ill!> eipresied by overt-act, or word,' are made 
fcloaj; ■ and the not giving thetn up witliin 
> six days after command from her, is made 
' treason ;' which act also expired with her life. 
- Here tJie olTeacft made Treason and Felony by 
the Act, were both seditions of a high nature; 
aad yet but trespaawt before the act made, nor 
are they other now the act is expired. For the 
wrprizing or detaining of a castle, without lei-y- 
. ia^ a war, or some other act of treason (as in 
Shecley'» case in Dyer) wa» aot treason, but by 
tliat let. To these we may Jastly add that 
cue of the earl of Northumberland in 5 lien. 
4, rot. pari. n. 11, 13. &c. He acknowtedced 
ly wriiini;, in pariiament, that he was euilty 
of not ' keeping the laws as ligeaace uketh, 
' 3nd of gathering power, and |>iTiii| of liveries* 
(nlucb are the words of the Parliament- Roll), 
au:l upon special consideration had, by the 
ItiTilsKnd Judges in parliament, of the nature of 
the oScDce thns set lurtli, tbey adjadged it was 
ocithtr felony nor treason, but only trespass ; 
and so are the express words of the roll. Yet 
ihr'gatlieriiia of power, nnd giving liTeriei,iind 
' breaking of alle^jiance,' are large eipressions 
of thnt, which in itself was truly sedition, and 
that of a high oatiire. And thus, bath by the 
use of the word, and the punishment provided, 
in some cases in parliament, for remedy of the 
oiTeacc (without which speciiil provition~it is 
never found capital) it appears clearly that 
sedition, or the stirring of sedition, alone, at 
tbe rommno law, (and nn statute, now in force, 
hub ardiiiiied. otherwise) is but trespass, and 
fnitiahable only by fine and imprijoni - - 

Now for [he words 'against Us. 
apioM the king. There is no doubt at all, but 
tint all oficnces are against the king. Every 
slight trespass, by the law, is ' cont 
'dumini r^;i9;' aod whatsoever is i 
peace is against him ; as also divers Indictments 
of ntere trespasael conclude with ' in cootemp- 
' tarn domini regis,' and ' contra coronam et 
' d^nitatein suas:' As in an Indictment for 
betnng of mass, is ' contta pacem, dignitatem 
* et coronam domioi regis,' All which import 
' against ihe king.' And thnt act of 93 Etii. is 
nade ' against teititious wonis ngninst the 
' queea's moit excellent majesty ;' which, even 
■net the act, remained not capit^ being before 
butlresptsa. And in the preamble of thnt of 
14 Elii. it appears, the act was made against 
' unlawful practice, secret conspiracies and de- 
' vices, stirred and moved against our sovereiia 
< lady the queen, in ie«l>in( unla^full/ to tat* 



her castles, fortresses, and the like.' And in 
Brectno, ful.'119. b. §. 3. & ISO. b. %. 6. the 
oncealing of treasure, which is punishable by 
ne and imprisonment, is expressly said to fas 
gi«vis pnesuniptio contra re^miet dignitatem, 
et coronam suam ;' as also the nut keeping 
be assises nf bread and nle, nnd the like. 
Neitlier is therd any doubt of this, but that thtt 
'ords, ' against the king,' may be applicablo 
1 any kind, and at well to ilie least as the 
greatest kind of offences, and imply nothing 
'* at increases the offence above trespass. 

It follows then, for the last part of the con- 
sid^^tion, that Csedition being but that which 
we otherwise call uniawfiil assemblies, riot, mu- 
Inv, rebellion, or the like; and every oQencepu- 
ishable, being against the k|ng) the ' stirring op 
of sedition against the king,' which is or may 
be the ' stirring up of a rout, unlawful assem- 
faly, mutiny, rebellion,' or tba like, against 
ome ordinary, or extraordinary command, pro- 
ess, writ, or execution of some established 
iw, is no other offence, by the expression in 
be return; nor Can thereby be understood to 
be other, without sotne special act of pariia- 
ment have altered the law, than trespass, and 
punishable only by£ne and imprisonment, and 
so, by consequence, no Treason. As for a spe- 
cial act of parliameit, that maketh ' sedition 

■ against the king,' to be higher than * tropin,' 
there is none such extant. Among all the acta 
of parliament that are in fbree, there is non* 
gives any colour here, but that of 39 Ed. 3, 
wherein treason is declared : and in that act^ 
only these words; ' if any one levy war against 

■ our lonl the king, in his realm, or be adhering 
' to the enemies of our lord the king in hi> 
' realm, giving to them aid or iwmfbrt in hi* 
' realm, or elsewhere, and hereof be attninteil 

■ of overt act, it is Higb-Treason.' The othet 
words concerning othe^ and higher treasons, ift 
that act, have notbiog that can so mncb as of 
themselves suppose a ' sedition against the 
' king;' but it ts true, that in these before re< 
cited there- may be a * sediiion against tho 
< king ;' that is, the levying of war against the 
king mny he by sedition, or the adbenng to tha 



.mgs 



r the 



I, may he, by a low eiprestiion, perhaps 
stiled ' s*dJtion against the king;' as in every 
greater crime, as in theft, trespass may be in- 
cluded, or understood. Now, unlesti on the 
other side, in that which is sedition against Um 
king, treason must necessarily be umlentood, 
these words of the 95 Ed. 3, make no more to 
prove that sedition is treason, than any act 
»ainst ihefl, can prove that trespass is felony. 
Therefore bOo, in that very act of 25 Ed. 3, 
the riding openly or secretly with aimed men 
to kill or rob another man, or to take him, and 
keep him until he make fine and ransom for Iris , 
deliverance, though it be plainly ' sedition 
' against the king/ it bemg againEt his peace, 
his laws, and his crowD and dignity, is bnt fe- 
lony, if robbery be committed with it, and 
trespass only if'^imprisonment till fine and ran- 
■um. And SO it is declared eipiessly iu that 



S75] STATE TRIALS, 5 ChaU-bs I. IG^a^Proceediagt agtarM Wm. Slnud, e*q. [9?G 

■ubjcct. To all lb[«e, the repl;i* eaij. For 
the first, ic la plain, tW tlie justice of North 
Wales slieHS the reawn of the impriioninent 
tube, beC!iui« Ituisel »■$ cliarged li; A. B. M 
bav« cuwiuitted ' sedition tuucliing the kiog,' 
u every ooe thtit is relumed to Etoiid commit- 
ted fur ■iij' ofFcDce, is supposed to sl.iod u^ 
coramicied, because somebodj dinrged him, or 
HCcused him, or con tebtirj agaiost him; and 
tlmt i) here more pHrlicularly eipressed, which 
\a every retum is supposed to be undentood ia 
thp general vrordi. Aj, suppose ilia relurn 
were, tliat such a one stands cammilied for 
trenson, or murder, upon the accusation, tea- 
timoDj, or eiBmiiiatioii of A. B. luken thus, or 
thus : would the court bait him the Boooer for 
that nddition I And in retuwB, it wns never 
expected tliat there should be such certainty as 
thnt tlie prisoner ntight plead and be tried. 
Which cau. never be dooe from retains, but 
only by appeals or indictments, wherein the of- 
fence IS ill special set forih bji time, place, and 
all circumstances^ Ut, if they had, in this case 
of Russel, expected or coasidered luch a cer- 
tainty, they oui^t not to liave lei him into 
mninprize, or bailed him ; but clearly' dismissed 
him. For, if nn appeal, which it an accusation, 
tiere brought against a man, or an indictment 
put in ' de diversis niardris,' or ■ de murdro,' 
gi^nerally; or, ' de praditionei'genernlly; clearly, 
upon such nn appeal or Indictment, tlie court 
uould not put the prrty neither Id answer, nor 
30 much as to the trouble of ball or mainpriie, be- 
cause such a charge that n ay, were merely void. 
For in appeals and indictments, the partirulur 
cii'fumstBiice, and the special offence must nl- 
wnys be set forth, or else they are void; but in 
returns, the general expression Is suiGclent for 
the court to ju<lge, nheilier the offence be sucli, 
u that die prisoner ouglit to be bailed or no, as 
the common nnd most known practice is. So 
in isofno force. Forthe 
that ilie nords ' tangeutes 
fa regem,' in matter of of- 
our Jans, are tatrn as sy- 
Ed.3,Stat.deClcro,-c.4. 
we have Trensoas or Feloniss, ' touchants nu- 
* ters persons que le roj/ luesiue ou son loyal 
'majestic,' 'touching others than il« kiii|[i' 
whicli is the same with, * being against others 
' than the king,' or ' besides the king ;' that it, 

Ktit Treasons, (wliich are both Treasons and 
lonies) as it appears in Stamford, I. 9. c. 43. 
fol. 124. b. Hi^b-TreaMO being • touching the 



act. And though tliere have been divefs acts 
of parliament since that of the 95 F.d. S, iliat 
have m:ide divers other facts treason, yet there 
is none of ibein that remain uiirepeHlifd,ornot 
expired, that make any such fuel treason, as is 
of the nature of sedition against the king; »nd 
except only the treasons mude by tliose special 
acts of parliament, that remain in force (us 
those conceraitig bulls from Itonie,' Jesuits, 
clipping of coin, and some few more}, tliere is 
notliiiig at tills day treason, saving what is com- 
prised in that act of S5 £d. 3, to which some 
special taws ' have, in the agci> since Ed. 3, now 
(iiid ijien reduced all treiison, by abro);aling all 
iiitcrvcnlcnt hiws of I reason. And by thatnct, 
it there be a doubt that happens before the 
judges, by reason of any new case that comes 
before them, they ouglit not to jud^eit treason, 
^uttl It beenacted by parhamenl.tobeso. And 
it duth. 111 the siune act, appear, that before 
tliat time, there was a gcealer latitude of tien- 
tou, than at, any time since. Now,, even in 
tliat time, there is ail express judgment of the 
very point iu question ; thotiali not in the same 
terms with this cose, yet in tlie self-same sense, 
as if ibis case had then hei-n before Uie Judges, 
It was the cnse of one Russel; he was impri- 
soned by the Justice of North Wales, in 9 £d. 
3, aud returned to be so, ' eo quod A. B. iio- 
' posuit ei I'eciste debuisse divenas seditinnes, 
' &c. ilominum regtm laugenlci.' Upon this 
return, the court adjudged, that the oOences 
cpnuiincd in the rtlurii, and as ihey could 
thereby be understood, were sucli lor wliicb he 
c<^^ to be boiled; auiJ tliey give'their renson 
with the judjpieiit, ' because it did not appear 
* nhut kind of seditions against the king were 
' meant by it.' ' F^ quod non specificatur 
' quales seditioncs, &c. idea dimittendus,* by 
mainpriie or bail, which to iliis purpose are all 
' one. For if the sedition had been wiiblraiior- 
i, and so expressed, then it had betn 



thetting might be of dlvecs other naluTe!i,and 
mere trespasses, therefore they said, ' ideo di- 
< mltteudus cat ;' expressing i herein the right of 
the prisoner, that he might juitly claim to be 
bailed, and bj law ought U' be ijaitcd, and not 
only that he was bailable. But three objections 
mav, perhapa, be made to this judguiem, to 
maLe it dIG'er in substance from the case In 
(juestion. The first, that ' A. B. imposuit ci 
' fecisM debuisse divenas seditioiies,'&c which 
being as an accubntion in so general terms, was 
not certain, ennugh to moke him aqswer to it, 
and llience might he cause of rbe judgment. 
Tlie second, that it is not ' coatia dominum 
, ' rf gem,' or ' against the king,' as the case here 
i% but * tangeutes,' or * touching' the king. 
And the third, that here is ihe king's warrsnl 
witnessing the olfence, aud command for im- 
prisonment, and in that of 9 Ed. 3, only the 
charge of a sulyact and the commitment' of a 



* Vide 11 lUch, 3, 0. 3, pet. 3, 1 Hen. 4, c. 
10, 1 Edw. 0, e. IS. 1 Mar. Pari. 1, c. C, 



that the lirst objec 
Mtxiad, it is certain 
' t^em,' and ' con 
fences, occurring ii 
---^- -1. Asiu- 



' king,' or ' against the king,' or ' extending ta 
' the kmg ;' which ia the same in 35 Ed. 3, (ie 
proditjonibua. Where tiie sense of the words 
appears by a law mad£ but few years altur-tliis 
very case of BusseL So in WesCmin. 1 . cb. 15, 
' Treason que toui'ba le my mesme,' ia cx- 
pressty for * Treason against tlie king ;' tliat it, 
Hbb-Treaaon, And Bractoii.fol. 119, b. J, 8, 
calls the counterfeiting the Great Seal, which is 
High-Treason to this day, ' Crimen liste ma- 
' jestatis, qund tangit coronam regis,' ot ' Trca- 
' sou.ajaliut the king.' And, in thb latter age, 
ns KB in the statute of 14 Elii, c. S, tbit 



377] STATE TRIALS, 5 Charlu I. IG20 md olhen, on m Habeat Corpa. [378 



' Treaaon toaching the poMti of the qoeeo,* 
and ' TreasoD couceniing the person of the 
■quMD'Are botb t,% the snrae, >uid both for 
' Tteuoiu aguan the quesn'i person.' Sa that 
' t:iDgentes regem,' and ' contra r^em,' denote 
the seir-»aaie ttiiDi; io the law, and for that 
matter, Ronel's case and this return are of tlie 
tAf-taxae nature. Now for tbe third objtcdon 
coOceniing the king's warrant and command in 
thia present case, which is not in that of Ru>- 
■el'i, but onh the Bccasnlion, or cbatge, and 
OHDmaiid of a lufaject. For ihe coramahd 
HB(lj<aicwlered, it is clearly against the Pe- 
btion of Right : but if it be coniidered here 
(as it ought) joined with ihe cause of commit- 
ment, then the canw is onlj ceiisiderabie bv it' 
m1^ aa expressed bj the warrant. But there 
is no book-case, act of pariiament, or other tes- 
tiamj of law with us, that in this kind sf con- 
nderatioD mabei an; difierence between the 
nprrission of an ofTence, in a return of the 
kiua warrant, and the expression of it in a 
ralum of a subject. For eil retnnu of this 
kind, in jadgment of law, are supposed true ; 
and tlie sole point examinable, tor niatier of 
bail, is the niuure of the offence; unless the 
ooounitmeut were bj one that mi|[ht not com- 
mt, or that some ol&er circunutaace, not con- 
ceniing these matters, were in the case. And 
bcsidea,iDS9Hen. a, rot. 38. Parker's caie, et 
1 Hen. 8, ri>t.-^-the kioR's command for com- 
mitnient for murder, and other offences of bieh 
nature, hath been in the reCnm, where the pri- 
mner was bailed. Nor will there remain any 
edotir of testimony to maintain this last objec- 



And aa againut this case of Rusael (which is 
•o fully in the point) these objections may be 
made; so aeainst the main, the conclusion, it 
nay be objected out of cboM old authors, 
Bracton, Glaorille and Hengham; that Brac- 
ton, in express words, make* ' seditin domini 
' re|is' to be treason : ' si qois aliquid ege'rit' 
(nith he, ful. 118. b.) ' ad seditionem domini 
' legit, vet exerciliu sui, vel procurantibus anx- 
' ilium et consilium piKbuerit vol consensum,' 
it it ' crimen lass majestatis,* to be punished 
wiih death, and so supposes it High-Treason. 
So Glanville, ' Si quis machinatus fuerit, Tel 
' tliquid liecerit, in mortem re^s, vel Rediiionem 
'npii, Tel exercitus;' faesaith it is likewise 
Treason. And Hengham bringing examples 
of the ' Pladu lie crimine liesae majeiuris,' 
add], ' ut de nece Tel neditione personie do- 
' mioi regis, vel regni, vel exercitus.' Where 
■esee,.' seditio rms,' or 'regni,' or 'eierci- 
'tos,' is supposed Treason. But the answers 
to tha authority of these old authors is various. 
Fmt, HoweTerthay were all three (if at least 
tlut of Glancille be the work of sir Rundal 
GWiTiUe, Chief-Justice of England under U. 
!.) learned and famous Judges in their ages, 
jet they lived so long >ince, and (he rest of the 
puiicuiars of which they write, are so diiferent 
(whether we observe the plea* of the crown in 
Ihsn, or the pleas between party and party) 
frna ihe ptacdce ud eatabliabed laws of ibe 



ensuing ages, that thcii^ authority is of slight or 
no moment, for direction in judgment of tha 
law at this day, tliougb it be very considerable 
In examination what the law was in iheir limes : 
and that way it sometimes is used ss an oma- 
mant id aigument only, as it is said in the Cnn- 
inentaries of tliem. Tlis lirst of ihem died 
about 400 years since ; the second, about 350 ; 
and Hengham about SOO years past. Secondly, 
the words of ' seditio reeia,' or ' regni,' are au 
obscure expression, and hardly so intelligible 
ns that we may know what they meant. For 
whatom ' sedition of the king' mean, in Eng- 
lish or in Latin, as they express it? And if it 
be taken for ' sedition ngaiiutthe king' (as in- 
deed the like words are interpreted in Scottish, 
nut of the ' regiam majeslatem,' by Mr. Skene) 
it mutt be an taken againn all grammar, and 
usual context of words ; for tio more than ' lu- 
' multus regis, rebellio regis, insurreciio regis,' 
is < tumult against the king,' or -* rebellion 
against the kin^i' or ' iusiurrctivn against the 
'king,' is ' seJilio regis,' ia force of language, 
' tedttion agniust tbe king.' Tliirdly, Admit it 
be rightly taken iiir ' sedition against the kiug,' 
in those old Authors, yet the statute of S5 Ed: 
3, 'de proditioiWbiis, .so settles the law for 
treason, that whatsoerer was tfeaaon. he&re 
tliat act, and is not comprised within that act, 
is no treason at this day, uolest some special 
act of parliament have ordained it. Fourthly; 
The constant couise of tetiimonies, aa they ar« 
before shewed, since the Uth of Ed. 3, prove 
expressly, chat only ' sedition agaiost the kin^ 
is taken far a less offence, and mere iresptm. 
Fifthly, in particular offences, we see Bractoa 
(wllose autliority is chs chief o^ the ihree, whe- 
ther we regard the expression, or the ifuaJity of 
the writer) difiers much from the common law 
or the later ages: aiuJ so much, that lie is di- 
rectly, it) some things of great moment, con- 
trary to the clear known law, both of the pre- 
sent and of aitoent limes. As he allows no 
killing of a man to bemurder, but what is done 
so secretlr, tliat it is not known who doth it. 
Uracton, I. 3, de Corona, fol. 134. b. & 135. 
And that if the offender be taken, or, if the 
part^hurC live long enough to discover hioa 
that hurt him, though he die afterward, it i* 
(saiili he) no murder. Which is directly con- 
trary to the law, yet altered by no special act 
of parli anient; So, ' Si quia alterius virilia ab> 
' sciderit, et libidinis cauaa, vel commcrcii casr 
' traverit, sequitur' (saith he, p. 144. b. §. S.) 
' poiDa uliquiindo capiCalis, aliquando perpe- 

' tione;' whereas there is no such thing in the 
laws of England. But indeed, by ihe civil Inw, 
'qui homlnum libidinis, vel promercii caua* 
' castraveril, pcena legis Cornelise de sicariis pu- 
' uilur ;' tliat is, is punishable capitally, ff. ad 
.leg. Cornel, de sicariis, 1. 3. §. 4 & 1. 4, §. ult. 
Whence, doulitlcss, Bractun, (who cites often, 
to other puruotes, the very texts and words, 
and quotes tlie places of the Oi^tsU, and the 
Code) had that punishment tor such as gelded 
meu. And th ea ca also had, by all likeUkood, 



879] STATE TRIAI^, 5 Chaubi L 1 1 

thai touching Mdition. For, bj the Cirit Law, 
■11 MdiCioD, public raiting of tumuUi, gnthering 
armed men without public authority, uul what- 



treasou (crimen lxi« oi^eBtati*) anri capilol. 
To whicli purpoic there be direra teili in that 
law S. ad leg. J^liim mniest, 1. 1. Ik da ptBiiis, 
]. 38. ^. 9. de appellatioaibus, 1. 16. C. de ledi- 
liosii, J. 1. Bt 2. &c. nhich doubtlen he both 
read and arten foUaned : aod by ■ concitatorc* 
' ledicionis,' or ' ibrren up ortedition,' by that 
very name were condeioned ai capital traiton. 
Bui thif was never, for aught appears, law in 
Engl)uid; hut the contrary appeanplain enough 
by what is already said. Sixthly, for answer to 
the objeccisns out of Bracton and Gianville, 
if their auihariiy tball b« taken Eofficient to 
maintain sedition to he treason : then will it be 
ai reasonable to prove, that in tuch a case bail 
•lao should be taken. For Bracton saith ci- 
prmlj ofthat, and otbertrra«ons,that be joins 
with It, that the prisoner ought to be bailed, 
imleat aa accuser m present. > Si qait,' snith he, 
* de hoc Grinine dcramatai fueiit, tone riden- 



' dmn erat Dtruiii apparent 
' ai aalem n^illut appareat, nisi sola Ama quK 
' tamum apod bono* et grares oriatur, hie inlvo 
' attachiabitarper taltot et securot plegios vcl si 
,* plqioi noo habuerit, percarcerisinchisioneiii, 

* donee decrimitiesiihi impositoveritatinquiia- 

* tur.'AndGlaDvilietaithexpressl7,thataltliougb 
■nHCCU*erbepi«t«nt,yetheiitobebulcd. '£ti- 
' amii accusator fiierit' (saith he) ■ aecusatui 

* diinittitur per plegioi ; But li non fiierit, in 

* earcerem dimittitar.' So that either the autho- 
rity of these old anthon is of no moment, for 
tfat reasons befiye thevrcd ; or if it be valuable, 
and that advania^ muM be taken- frotn them, 
it ii aa reatonable that their other opinion, for 
the bnri, beat well accepted and allowed of in 
this case. But there rentaini, perhaps, one ob- 
jection, out of the opinions of Tresilian and 
Belknap, ihe two Chief-Jnttices; and of Holt, 
Fuhhorp, and Burgh, JDsticei of the Common- 
Pleas, and Locktnu, one cf the king'i se^eant* 
IB U Rich, e, (Vide SI Bteh. 3, c. 11, see the 
roll;) Who being, tunnng other things, de- 
manded BtNociingham by the kiag, nnd charg- 
ed to answer, upon their faith and legiance to 
the kitig, how th^ ought to be punished that 
tlid interrupt the king, so that he might not ex- 
erciteUtose thioK' that pennineth to his rega- 
lity and prerngativG : (in which words, perhaps, 
(nay be included all kind of sedition againct 
any proceeding, prooesi, or ordinary command 
of the king) with one assent thoy answered, 

' Hint they ought to be puniched as traitors. 
And if that were law, it were hard to find a se- 
dition against the king, but that it were treason. 
For ail hi* procevdings, procrss, and ordinary 
commands, belong to his regality and preroGn- 
lire, and every sedition against him, is akind of 
intemiption of the eiercise, at least, of those 
proceedings, process, aiyl ordioarj commands. 
It is true, that' in the 11 Rich. 9, such an 
wmrer, among divers others of like nature, 
mut gimi by tbpM judges, and that seijennt; 



I. — Froatdingt agaaut Wm. Strmtd, aq. [ZsO 

and they pnt thir seal* al«i to t^em. But it i* 
as true, that for these very answers ibey were 
accused by the commons in parliament, ihe 
lelf-same year, where tbev answered upon the 
acGusBiioa : Firat, That IM answers were writ- 
ten in the original to which tbeir aeali were put, 
otherwise than ifaeir meaning was, in sane 
part. Secondly, That they bad been threatened 
to make no other answer than what might 
agree with the king's liking. Thirdly, That tbeii 
answers proceeded not of ibeir free-will, but for 
fear of death; and that some of them had re- 
vealed aa much to the earl of Kent, dcsirins 
him to witness as much hereafter if lime served. 
Hot Pari. 11 Rich. 9, n. 14, and vide Stat. ]1 
Rich. 9. c. 3, 5, &c. Notwithstanding «U 
which, at the instance of the commons, tbey 
were judged all by declaration in pariument 
made by the king and conunons, which was ac- 
cording to the act of 35 Edw. 3, and so by act 
of parliament, to be traitors, and to suBcr as in 
caseof treason; good part of which proceeding 
is remembered in the statutes of that year, bet 
much more in the Bolb of that porliaraent. 
And although in the parlituuent of 91 Rich, a, 
that parliament, and m particular, this proceed- 
ing against the judges, were wholly annnUed, 
and Jieir anawcn adjudged good ; as appeara 
in the printed statutes of that year, 91 Kwh. 3, 
c. 19, yet in the IstofHen. 4, it wa* declared 
fay paiiianent, 1 Hen. 4, c. 3, that tnia prtt- 
ceeding of parliament of St Rich. 9, being 
caused by a certain number only of the mem- 
bers of parliament, and that the 'Statutes, 
'judgments, ordinances, and ciubliabments, 
' were made, ordained, and given erroneoasly 
' and dcceitfoliy, in great ditherison and final 
' dcitructian, and undoing of the liege people 
' of the reahn.' Where ^so it was further de- 
clared and adjudged, in the same pBrlieraeat, 
that ail the parliament of SI Rich. 9, and all 

< ctrcumitances and dependeals thereupon to 
' be of on force or value, but annolled.* And 
besides, (hat ' the parliament of the II Rich. 

< 3,' wherein thota Judges were condemned aa 
Traitors, for that answer, and all tbe rest of that 
kind, ihoukl ' be firmly holden and kept, after 
' the purport arul effect of the some, at a thin^ 
' made for the great honour and common prOM 
' of tbe realm.' So that that amwer of the 
Judges, in tbe 11 Rich. S, so highly condemned 
as false and erroneous, by two parlianw^ts, 
both which have to this day continued in finn 
strength, is of no weij(bt to prove (hat ■ seditioa 
' against the kin^ is Treason.' Nor doth an^ 
thing else prove it, but the contrary is mant- 
fested by the arguments before urged. And by 
consequence, it is only trespass against the 
king, and punithable by fine and imprisonment, 
and therefore the prisoner returned to stand 
committed ' for stirring it up against the kio^ 
ou^t to be bailed. 

Some d*v*«fUr, sir Rob. Stafh, ihe King> 
Attorney tieneral, argued. That this Return 
was good, and that the parties ought not to be 
bailed : And that withia die Retom tbete bjk 



ncnl, thai it vra* bj the comBwid of .ih* Lord 
the kioj! : and [hi* in braer timci was held k 
* lerj good n-turn, when doe rapect and iwa- 
nace wo* giren to goTCmment ; but, tempora 
miUaatur. And thii Reraro i* no waj weak- 
ened bj anj Utter opinion ; for nolwitbHand- 
tng that, tlw firat commitmeiit of ■ man maj' be 
geocraJ : for if upoQ tbe retam, the trae cauie 
tboaU be irrealed to iht untder, bj lht» means, 
lults ihoalcl be publisbed and dJiDleed before 
ttwir panisiiiBesE, and m the comptica ofthe 
ha will ndpe, and it is not fit that the eaoler, 
■ibicfa a bat a minMtehal officer, aboold oe ac- 
qiMtflted wiib the aecrect of the cause. But 
when the caaae u ntnmed in court, more cer- 
uintT ia re<piisite; forthen(ai it hath been oIh, 
jccud) aooiethius ouffat to be nprewed to 
wbich the party maj aniwer, and upon which 
(lie ooun inaycnHuid their judEment. And to 
(Us pvpose, the PecitioD of Uight haib been 
noch insifted apon ; but the law ii not altered 
bj It, hat remaina aa it waa before. And ihi* 
Wai appear opon the view of all Che parts of the 
Peticwn. 1. The occasion ofthe Petition, and 
the grievance, is shewed iathiae wards: * Di- 
' Ten of joiir sut^ecti hare h««n of li 
' soned, wttboot maj caose shewed,' i 
in tlni retam there is a caute ah^ired, to which 
ih« parties m^ answer. Thea, 'J. The prayer 
of the Petition is. That ao Treeman, In any such 
natmer ai before is nendooed, be imprisoned 
or detained ; that is, sucli manner of iieprison- 
■aent, the ground whereof doth not appear. 
Then ilie Aosurer of the king to the Petition 
was in sonriry word] ; 9 June 1038, in these 
words, ' Tbe king wdledi, tht.t ri^ht be done hc- 
' Gordiag to tiw law* and cuMnmi of the ivalm, 
' Ac' Which answer gave net satisfaction. 
And aftcrwaids his Answer was in a parliament- 
ary phrase, ■ Soit droit &ii come est de»re.' 
Bat afterwards, on the afithsf Jnne, 1038, the 
kiTW eapresaeil hb intentioa awi meaning in (be 
•aid Answer. " It must be conceived, that I 
haie grwited no new, but only confirmed the 
aiMaentUbeniet ofmy Ssbjects.&c." A Pe- 
tiua in parliament i* not a law, yet it is for the 
honoor and digtii^ ofthe king, to observe and 
kicpit JaithfiiQy; but itit the duty of thepeo- 
pk not to stretch it beyond the words and in- 
tmcioa ofthe king. And no otiier conslrtiction 
OB be made of the Petition, than to take it as 
a eooArmuioa of t he aatient libenies and rights 
«f the sabject*. So that now the case rtmaina 
JB t^ gaai quality and degree, aa it wu before 



t; 



SSI] STATE HUALS, 5 Chailu I. 1620.— «nif oiken, m m Habeat Corpu. [398 

pean good cauae of their commitment, and of the P^tiou. Tberafore 

their deiaioing aha. The case is great in ei- 

pectation and consequence : and concerns ihe 

Liheny ofthe Subject on the one part, wbereof 

the aigument ii plausible; and on ^bc other 

part, it ooneemi the safety and sovereignty of 

the king, which is a thing of great weight. The 

coosidemtion «f both pertains tu you the Judges, 

without sli^tii^ ibe one,<w too much elevatiDg 

the othw. llie Return,^ which now is before 

you, is entrn; but I will first oonsider ' 



how the law was taken before tbePelition; and 
lor the diMUsaiiv thereof, we will examine the 
second part of the lUtunt,aadioit two things: 
1. If (he Return, as it is now made, shall be 
mteoded for true. S. Admit that {t is true, if 
there he any offence contained within it, which 
is good to detain the prisoners. For the lit it 
b dear, that the cause afaall be intended true 
which is returned, though io truth it be Also ; 
and so are 9 U. 6, 44, and P. Corpus cum coum, 
and i Coke's Hep. 11. p. 03, Bagg's case. . It 
seems that there is such a criiae contained in 
this return, whidi is a good caoie for detaining 
tlie prisoner*. It is true, that it was coofidentljr 
oi^ed in parhnmenc, in 3 Cat, that general ra- 
tumt, that were committed by the command of 
the lord the king, ore not good i and that those 
nr);uinents remain as mcnunienti on record, in 
the upper house of pftrliament ; but I will not 
admit ibem for law. Bot I will remember what 
was the opinion of former times, 'S3 H. G, 59, 
by Newton ; a man committed by the commarKl 
of the king, is not replcvitable. And the op». 
nion cannot be intended of a replevin made b^ 
the sheriff, betnuse the principal case there is 
upon a return in this court. 33 Hen. C, 3S, 
Poyoing'i case, where the return was. That be 
was committed by the lords ofthe council, and 
it was admitied good. It ii troe, that tliis opi- 
nion isgroundetTuponWcBl. I.e. 15. bnC I will 
not iniiit upon ii. But the constant opinion 
hath always been, that a man committed by the 
command of the king is not bailable, lu 9 H. 
6, 44, it is said, That if ona be taken upon the 
king's suit, the court will not grants mptnedeat. 
The coDtrary opininti is eroundcd upon Magna 
CharcH, which is a geonal law, and literally hath 
no sense to that purpose : and it is contrary ro 
the nsual practice in criminal causes, in which 
the imprisonment is always lawful nntil the 
trial, aliliough it be made by a justice of peace, 
or constable. And that a man committed by 
thecommandof the king or privy council, is not 
bailable, he cited 1 Jac. sir John Brocket's 
case; S Jac. Thomai Cssar's case; 13 Jac. 
James Demaiitres's ease; 43 Elii. WilUun 
Rinch'tcase; and in the case of M. SO Eliz. and 
4and5Elii.R.Thimelby'acsse; and said, that 
there are innumerable precedents to this pur- 
pose. M. 31 and 93 Eli*, upon the return of 
an Habeas Corpus it appears, that Michael 
Page was committed by the command of the 
lord the king, but was not delivered; and after 
was arraigned in this court, and lost his hand. 
And at the same time Stubbs was committed by 
the ctomiand of the lord the king, for seditious 
words and rumoara, and he lost his hand also 

3>on the aan\fs trial. M. 17 and 18 EIri. upon 
abea* Corpu* for John Loan, it was returned, 
That he was committed for divulging sundry se- 
ditious writing*, and he was remanded. And T 
H. r, roll 6. Rug's Case ; and rolT 13. Chase's 
Case, where the return was, That they wore 
committed by the crnnmand of the lord the 
ki)^, and tk^ were not deUvered; aadtt" — 
aJte the opinion is 



B thia court, M, S Car. and 



JS3'] STATE TRIALS, 5 Chailb* I. l(S'2Q.—J'roaxdiagi againtt Wm. Sinmd, ag. [^Si 



mfter the said time the law ii not alrered; Bnd 
to, I hope, ncitlier are ;our opinions. ■ 

But tu coDsider the particular cauie men- 
tioned in (he return, I will not retjr upon the 
fint part of the wonis, although tbej be of great 
weight, but ontj upon the last worda, — ' for 
' atirring up of Sedition ngainst Us.' — Bat it 
hath been objected, that Sedition is not a word 
known in the law : But I mnrvel that the Eig- 
niAcation of the word is not^ understood, when 
U i» joined with the word) — 'a^instUs;' — 
this ought to be understood, Sedition af^nit 
the liing, in his politic capacit]'. Sedition hatli 
sundry HceeptatioiM, aceorilinf; to the subject 
handled, as it appears Colce'b 4 Rep. p. 13, 
lord CroDiweU's Cue, wljicb hath been cited. 
If it be spoken of a man, that he is seditious, 
if it be of a Company in London, it shall be 
understood sedition in the company; if it be 
spoken of a Soldier, it shall be taken for mu- 
tinous. Mr. littletoQ, who argued this case, 
very well said, Tiiat Tacitus used this word, 
and it is true ; and he lays, That there are 
two mnuueis of seditioin, ' Seditio annata el 
' togata ;' and the last ii more dangerous thim 
the fdnaet. But couple it with the subsequent 
words here, ' a^inst us,' the iulerptetatian 
and sense thereof is eaiy, and ' loquecdum ut 
' lulgus.' Mr. Littletnn shews ibe accepta- 
tion of this word in divers places of Scripture, 
and I will oot reject them, for they make fur 
me ; 30 Numb. 3, the Latin is, — ' populi vers! 
'sunt in seditianem;' — and it is Englished 
' murmuring,' but clearly it was high-treason 
against the governor, and God himself. 36 



nsediti 



eCora 



nifest. 



bW 



that that was a great insufrection. 13 Jud. 
' facta est ergo seditio in Ephi 
' Ephtaimites rose against Jephtha ;' uud he at 
the same time was theii judge and governor, 
so it was the height of insurrection. It is true, 
that in 15 Acts 1, ' tacta est seditio ;' and in 
sume translations it is, ' Orta est repugnantin 
■ Don parva,' for it may be taken m several 
senses. 19 Acts 40, liie town-clerk there 
knew not how to nuswer for ' this day's sedi- 
tion,' or insurrection, and no doubt he was in 
great peril, for it was a great insurrection ; and 
I wish the greater unes were »s circumspeot as 
he was. Si Acts S, ' Tertullus accused Paul 
. ' of sedition,' and doubtlms it was conceived a 
great offence, if you coiiaider the time and other 
circumstances, for ihey were heathens and Rj>- 
man^. And although he in very truth taught 
the gospel of God, yet he was taken for a pes- 
tilent fellow, and as a persuader to shake off 
government. Braciou, lib. 3, de Corona, c. 3, 
ranks sedition tunungst the crimes Icu ntojet- 
lalU. But it hath been objected, that if it be' 
a capital oQ[ence, it ought to be felony or trea- 
son. To this I >aj, that it cannot be felony, 
but it may be treason, for any thing that ap- 
pears. It is true, that by the statute of a E. 
3, treasons are declared, and nothing shall be 
called treason, which is not comprised within 
the suid statute, unless it be declared so by act 
of parliaiDiGiiL But upon Indictment of tna- 



such sedition as this may be gi>eii in evi- 
dence, and perhaps will prove treason. And 
the return is not, that be was seditious, wbich 
thews only an inclination; but that he stirred 
up sedition, which may be treason, if the evi- 
dence wiU tear it. In divers acts of parlia- 
ment, notice is taken of this word Sedilto, and 
it is always coupled with insurrection or rrbcl- 
lioD, as iippears by the statutes of 5 II. 9, c. 6. 
17 K. 2, c. 8. a H. 5, c. 9. 8 H. S, c. 14. 
S&4E,6,C5. iaE.S,c5. IftSPhilfc 
Mar. c. 9. 1 £liz, c. 7. 13 Elii. c. S. SS 
Eliz. c. S. 37 Eliz. c. 3, and 35 Blil. c. 1, aU 
which were cited before ; and- they pnve, that 
Sedition is a word well known in the law, and 
of dangerous cansequence, and which cannot 
be e^nunded in good keme. Whersfbre, as 
to the nature of the oSence, I leave it to <Jm 
court. But out of these statutes it appeirs, 
that there is a narraw diSerDiice between it and 
Treason, if there be any at all. 

3dly, As to tlie Objections which have beta 
made, I will give a short answer to then. 

I. It was objected. That every imptison- 
ment is either for custody, or punishiaent ; tbt 
last is always ufter the Judgment given lor the 
oSence ; and if it be but for custody, the party 
tender of sufficient mainpemeit is baiht- 
I confess, that this difference is troe, brt 
not in all respects ; lor I deny, thata men b 
always bailable, when imprisonment i» inipiMeB 
upon iftn for custody : For imprisonment is 
fur two intents ; the one is, that the pirtj 
which had oSwded, should not avoid thejixq- 
mentofiaw; the second is, that be ib»U»^ 
do harm in the interim duiing his trial ; w 
the law is careRil in this point. But it 1»0| 
been said. That although the party be baik,* 
yet be i» imprisoned. I deny that, for so o 1 
U. 4, 6. If the party come not at the d«y, tM 
bail shall be impriK>ned ; but yet the biuliih^ 
not suffer tlie same puoithmeni which oaght la 
have been iuflicted upon the parly ; as "J' 
were fur treason, the bail shall not answer lor 
the fault, but only for the body. Ser)ewt 
Berkley did well call a seditious man, anl^ 
cendiary to the govemmant, and, as «"*"• 
inceudiuni, is to be restrained of his Itberty. 
And he put 33 E. 4, and 88 Ass. S6, t""/ 
madman way be restrained, to ^lreYent it* 
hurt be would otherwise do himselt and olhent 
A seditious tnan is as a madman, in the P\^ 
state of the Commonwealth, W"* ""T^ 
ouehtto be restrained. And it appears byn* 
writ • De Leptoso amovendo,' that a leper » 
tn be removed, and, in a manner, unp^^P?! 
for the contagion of the disease ; and ™','*/^ 
the safeguard of others, leat his lepr*"?^"^ 
others. The application is easy, and by wj 
Statuta of 1 Jac. c. 33, is restrained w f^ 
within doors ; and if he go abrmd, VL?L„ 
raayJDStify the killing of him. The wfecu™ 
of Sedition is aa dangerous as any of th»f^ 
eases, therefore it is not safe to 1^',*™^,- 
men to bail, or at hberty ; and in daogew" 
cases, tbe wisest way is to make all sate. ^^ 
all cas«i ot this natucs, tnuch is l*ft l" *" 



SS5] STATE TRIALS, 5 CRARtSs !. I6'i0.~and oiieri, c 



a Halieta Corpia. [236 



netioD of cfae court. Tbe C>se of M. 9 E. 3, 
n^. 39 UiukU, hath been objected, to be in 
tibepouit; I have viewed ibo recnrdof lliul 
cue, aud slthou^h it be verbutly, yet it is nut 
mUeriallj lo Ibis purpose : fur tlie comraic-- 
»cat «u by b Justice uf North Wales, upon 
tbe aecuutioD of an acciuer ; and it was uiib- 
in a short time after ibe slatuie of 5 E, 3, Lj 
which ii was ordained. That none should be 
B^iriMDed upon tlie accusation of one uc- 
cuser : hut here the delajumeat i» bj tlta liiiig 
tinueir, far siiirioE np of BedicioD. And there 
tin return was, Tbat he wat accused of scdi- 
linDs aod indecencies, where the latter uurd 
dgihqualifj the ronuer. And tberf issued • 
Writ of good behaviour, (as the use was) to en- 
ooiie of the truth of the offence ; and it wu 
ioaod, thai llisre nas no such offence : and 
then apon the same return again he was set at 
hbrrt; ; so that die case there was special, and 
tlw manner of firoceedings special. And I de- 
sre that one thing may be observed, that Rus- 
id! came in here upon the Habeas Corpus, SO 
Seat, but naa tint delivered until Hillary Term 
fallowing. And for ^B H. 6, ihe duke of Suf- 
tiU'i Case, which was ohjecled, chat the ge- 
neral accusation of divers treasons was not le- 
gsL That is Inic, because it was in parlia- 



It, and in the 






being io a court of justice, it had been uoji 
Id condemn a man before liis tiiui; and jcl 
tluscoutt, upon probability df n fault, does nft- 
Qmei restrain a mni) before conviction. But 
ii liaifa been objected in thii cnse. They have 
b(ca a long time imprisoned, ai^il no proceed- 
np against them. It is ivc-ll known, there 
hue been some proceedings a^inst them, and 
ibe; declined them ; and also more than three 
aiootiis ii requisite for the preparation of iucii 
[*i>ceediDga, and the kint; intends lo proceed 
*E>inst tlxin) in court'iiieut time. And 
tint Kfre offenders in llie same kind at 
■ndy delivered, to wit, Mr. Coriton and sir 
fetcr llnymaii. TliereFixe, if any iujury be 
>iooe lo the Friainers, tliey ilietuseitet si 
(Bate of it, ft>r not submitting themseli 
the Ling: And lur lbeilUtlluc«uhichMr.Li^ 
tletao used of the Judges in 11 H. 3, alihough 
the; lulTcred for tlieir ofiinions. given to the 
U% I ddire, that tlie time whctiUieir opinion 
■!> deJiteted, may be considered, to wit, in 
<k liaie of tt. 9, and the time nlien they auf- 
I (ned, to mit, in [lie time of U. 4. And it was 
theiuing of a uoble ^pntlenian, the lord Eger- 
Ua, TIat &lknap sufiered rnthtr by tlie pit- 
I teacy of his enemies, ihau the ereauiesi of*his 



'ma: and yet ic is to be confessed, that they 
■ight have given belter cuunsel ; but there 
*WBo time to dispute uf tlie justness of their 
cwniel, when ibe awoid was in tlie hands of 
tW conqueror. 
What hatli been relied upon is the Itesolu- 

■iui-af all the Justices of England in 34 PUii. 

■Wli Resolution ia now. registered in tlie upper 

We of parliament, at the request of iLe com- 
>•»«•, in far(4o CvroU regU ; but I leave it to 

TMjS) (bat Ilaolution shall sway yuur judg- 



' The said lUsoluiion is, That ibe 
ight to be ccnitied iit the generality, or 
sperftlty ; and iiere ilie geneml cause is certi- 
fied at least, if the special be nut so ; and upoa 
ihe wliole matter the bailment of these priM- 
ners is left to your discretion ; and I have 
sliemed to you the discretion of your predeces- 
sors. And if any. danger appear lo you iu 
their bailraent, I am confidfni thai ye « ill not 
bail them, if any danger inny ensue ; but first 
yc are to consult with the Line, and he will 
Ehew yuu where the dnuger rests. Therefor* 
upon the whole matter 1 pray, that they be ra- 
manded. 

When the Court was ready to ha»e delivered 
tlieir Opinions in this ereat business, the Pri- 
soners were not brought to the bar, according 
to the rule of the f.ourt. Therefore proclama- 
tion wns made for the Keepers of the several, 
prisons to'bring in ihcir Prisoners; but none of 
tlitm appeared, except tlie Marshal of the 
King's-Bencli, hIio informed the Court, lliat 
Mr. Stroud, «ho wns iu his custody, was re- 
mnved yesterday, nnd put in the lower of Loo- 
don by the king's own waTraiit; nnd so it was 
ilone KJtli Oie otlier prisoners ; for each of them 
waa removed out of his pnsuu id which lie was 
before. But notv ithsionding, it was prayed 
by the counsel for the prisoner), that the Coott 
would deliver ilieir Opinion as lo the matter in 
law : but tlie C<iurt rtfuscd to do iliat, because 
it was to no purpose; for the Prisoners being 
absent, they could not be bailed, delivered, or 
remanded. 

The evening before, there came b letter to 
the Judges of this court from the King binisel^ 
informing the court with the Rensons, wlierft- 
fiire the Prisoners were not suffered to cnnie at 
the day appoiuted for the Ilesolution of the 
Judges. 

To our trusty and well-beIiive<S onr Clilef- 
Justice, and tlie rest of our Justices of our 

" C. R. TiDsty and well-beloved, we greet 
you well. Whereas by our special comniand-' 
ment we have lateU removed sir Miles llobart, 
Walter Lonfc, and William Stroud, from ilio se- 
veral prisons where they were formerlycom- 
mitted, and have now sent than tn nur Tower 
of London ; underitanding there are various 
constructions toade thereof, acconliiig lo the 
several apprehensions of iliose who discourse of 
it, as if we hedrione it to decline the course of 
juatice ; we have therefore thought lil to let 
you know tlie true reason and occasion there- 
of; as also, why we commanded tluise and the 
other Prisoners sliould not cwne before yt>u the 
last day. We (having heard how most of them 
a while since did carry themselves insolently 
aud unmannetly both . towards us and your 
ioidships) were and are very sensible thereof; 
and though we bear younelvcs gave them some 
admonition for that miscarriage, yet we could 
not but resent our honour, and ihe honour of 
so great a court of justice, so fitr, as lo let the 
world know how much we dislike the same: 



flS7] STATE TRIALS, 5 Chables I. ie'29. 

and having undmtood that jniir lordsliips, and 
the reit of our Judges nnd Barons of oiirCburts 
of Common PleiiB nod Exchequer, whose ad- 
vice* aud jodgments tve hnvc desired in this 
great business, co mucli coticrrniiig our ^vem- 
menl, have nnc yet resolved the mnin question; 
ure dill not think the presence ofthotc Prisoners 
necessary ; nnd until we should find iheir temper 
and discretions to bt; &uch ns maj deserve it, 
we were not willing to afiUrd tbem favour. 
Nevertheless, the respect we liear to the pro- 
ceedings nf that Court, hnth caused us to give 
nray, that Selden «nd Valentioe should 'nttend 
jou tO'inorrow, tliey being lufhciciit to appear 
before you, since you cannot as yet give auy 
resolute Opinion in the main point in question. 
Given undiT our signet, at our maJior ut Green- 
wich, tliis 24th June, in the liflh year of our 
reign." 

Witliin three hours after the receipt of those 
Letters, other letters were brought unto the 
■aid Judges, at followeili ; 
To OUT tratiy and wcil-beloved, our Chief- 
Justice, and the rest of our Justices of out 
Bench. 

" C, It. Trusty and wcU-beloved, We greet 
you well. Wherens by our letters of this day's 
dale, we gave you to understand our pleasure. 
That of those prisoners which, by our com- 
mandment, are kept in our Tower of Loudon, 
Selden and Vnleiuiiie should he brought to- 
morrow before you ; now, upon more mature 
deliberation, wehaveresolvcd. That all of them 
ihall receive the same treatment, and tliai 
none shall come before you, until we have 
cause given us to believe they wiit mnke a bet- 
ter demonstration of tbeir modehty nnd civility, 
bolli towards us and your lordships, tlian at 
llicir last appearance they did. Given under* 
our signet, at Greenwich, this 34th day of June, 
IB ihe Qfth year of our reign." 

So the Coun this Term delivered no opinion, 
and the imprisoned Gentletaen continued in re- 
straint all Ihelnni; vacution. 

Towards the latter end of this vacation, all 
the Justices of the King's- Bench being then in 
.the country, received every one nf them a let- 
ter to be at SerjeantVinn u^on Alichaelmas- 
day. The»e Letters were from Ihe Council- 
Table ; and the cause expressed in them was, 
' That his majesty had present and urgent oc- 
* ctuion til use their service.' The Judges came 
up accordingly on Tuesday, being Michaelmas- 
day. The next morning about four o'clock, 
Jetters were brought to the Chicf-Juitice from 
Mr. Trninhnl, Clerk nf the Conncil then at- 
tending, that lie nnd judge Whitclocke, one of 
the Judges of that iM>urt, should attend the.kii^ 
tliitt morning to rion as conveniently they 
could; whichihe Chief-Justice and that Judfi^e 
did ut Hampton that morning; where the king 
taking them apart from the Council, fell upon 
thebusinessofthaOentlemen in the Tower, nnd 
was contented they ihould be bailed, notwilh- 
■tanding liwit obs^oy, in that tbe^ would oot 



— Pwceedingi agamtt Wm. StrouJ, etq. [3SS 

give the king a Petition, esprrising, ' That ll'iey 
' were sorry be was offended with tliem.' He 
shewed his purpose to proceed against them by 
the Comtnon Law in the KingVBench, and to 
Icnve hi) proceeding in the Siar-Cbambcr. Di- 
vers other matters he proposed to the sairf 
Judges by way of Advice,* and seemed well 
contetiied with what they answered, though it 
was not to his mind ; which nns, That the of- 
fences were not capital, nnd that by the law 
the prisoners ought to be bailed, giving security 
for their good behaviour. Whereupon the king 
lolil them, < That he would never be offended 
' with hit Judges, so they denlt pluintv with 
' him, nnd did not answer him by Oracles and 
• Riddles. '+ 

The first day of Michaelmas Term it was 
moved by Mr. jKoion, to haw the Resolution 
of the Judges; and the court nitb one ivicc 



• Mr. Whilelodie in his MemuriaK p. 13, 
says, " My father did often and highly com- 
plain againit this way of sending to the Judges 
liir their Opinions belbrehnnd ; and said. Thai 
if bishop Laud went on in his way, he would 
kindle a ftamo in the nation.'' 

t Mr. Whitelocke, in his Memorials of 
the English ASkirs, page 14, says, '* The 
Judges were somewhat perplexed about th* 
Habeas Corpus for the Parhaioent-men, and 
wrote an humble and stout Letter to the kio^, 
< That by their oaths they were to bnil the 
' Prisoners ; bat thoueht fir, before tlicy did it, 
' or'publishied their Opinioiu ther^, tointbmi 
'his majesty thereol, nnd humbly to advise 



bench, to hail the prisoners.' 
But the Lord Keeper would not acknowledge 
to my fother, who was sent to liim from tbe 
rest of his brethren about this business, that he 
had shewed the Judges Letter to the king, btu 
dissembled Ihe matter, nnd told him, that bo 
and his brethren must attend the king at 
Greenwich, at ■ day appointed by him. — Ac- 
cordingly the Judges attended the king, who 
was not pleased with their determination, but 
commanded tbem not to dehver any Opinion 
in this c!>se without consulting with the rest of 
tbe Judges; who delayed the business, and 
would hear Aieuments in (be case as well as 
the Judges of the KingVBei:ch had done; aud 
so the busiaess was put oif to tlie end of the 
Term. Then the Court of King's-Bench being 
ready to deliver their Opinions, ihe^ Prisoners 
were removed to other prisons, and B>Lett?r 
came to the Judges from the king, ** lliat this 
' was done becante of their insolent carriage 
' at the bar.' And so they did not appear. — 
The Jtidget of tbe KingVBench were sent for 
by the Lord-Keeper to be in London on Mi~ 
cFiaeltoas-ihiy ; the chief-justice Hyde, and mj 
father, were sent for to the king at Hampton- 
Coort, who advised with them about tb« tm- 
prisoned Pnrtiaraetit-men ; and both tbes« 
Judges did what good offices iliey could, (q 
bring on the king to beal tfane breacbai>" 



,«*] 



STATE 'nUALS, 5 Chaubs L lG29^-~<m am Habtai Corfna. 



[390 



* Mid, That tbcj are now ei>i)teat tbnt thejr 
■bould be bailed, but that ihe; ougbl to find 
mretin ako for the good belia*iour. And 
jauice Joca uiH, That to it was dcue in ilie 
Caie irtiich had been ofiea remeaibered to 
another pitrpcMe, lo wit, Runel'i Cii&e, in 
9e. S. To which Mr. Selden answered (wiih 
dImhh all the other Friioneri agreed m opi- 
■uon). That the; Lbts ibeir sureties ready for 
the bail, but Dot fortheguod behavinur; aad 
ileaire, that the bail might tint be accepted, 
and diat the; be not aried to the oiher; and 
that for Ibeie rcaaont : 

1. The cue here hitth lon^ depended in 
oouit, and tbej hat b been impnaaned fur these 
thitu waeks, and it bad been ofluttiinea ar- 
gued oo the one «ide and the Other ; and those 
ifaat ar|;ned for the king, always demanded 
tint wc likwld b« remanded ; and tbnie which 
u^aedoDour ijde, desired that ve might be 
bailed or diKhqrKd ; bnt it was nerer Uie de- 
atre of the ondide or the oilier, that ws^ald 
be bound to die good beliaviour. And in tli« 
lait TeHD four ieveral d':ys were appuinted &r 
the RewlDtioa of the coart, and di^ sole point 
inqneatisn was, If bailable or Dotf Therefora 
be now desim, tliW the matter of Ball and of 
fpMd Beba¥ionr may be fevered, and not cod- 
famded. 

2. Because the finding of~8aretiei of good 
bebanour is sddom ai^ed upon Relum« of 
FeJomei or IWisoDS. And it it but an im- 
plicatioi apoo the return, that we are culpable 
of those matters nluch are objected. 

3. We demand to be bailed in point of 
R%bt; and if it be nut grantable of right, we 
io not denuod it: bnt the finding of Sureties 
ibr the good bdttnour, iia point nf discretian 
merely; and we cannot assentto it without great 
obnce to the parliament, where theae matters 
which are surmised bj return were noted ; and 
by tbe statnte of 4 H. 8, all ponisliiaents of 
•ach natora are made void, and of none efiect. 
7berafore,&c. 

Court. The Return doth not make mention 
of any thing diMie in parliameot, and we can- 
DMin a judicial way rakenotice that these 
Ainp wera.do»e in parliament. And by Wbitt- 
lacw, ^ surety of t!ood bafaavionr, is a pre- 
TMttiiig medicine of the damage that may fell 
oat to the commenwealtl); and it is oo act of 
fuieiiBnent and jnrisdicuoD, and not of law. 
And by Civke, it is no inconvenience to die 
Prmooen} for tbe same bail sufficeth, and: all 
ahaJI be written upon one piece of parchinent. 
And Bettk, Attomey-Geoeial, said, Thnt by 
■ the llilmnalid of tbo king, he had on Infurma- 
n Im hand to deliver in the conrt 



had married hit dau^let and heir, but the 
court refuted it; for it is contrary to tlieoourae 
of the court, unless ihe Prisoner himself will 

rCoiiiG bound also.* 

And Mr. Long, ilmt bsd fpatiil turetits in 
the Chief- Justice's Cli.-iiober, far the good b«- 
iour, refused to' continue liis sureties any 
louder, iiinsmuch »t they ivere bound in a great 
sum of a.OOOf. and the good behnviour was a 
ticklish point. Therefore lie was commlltcd to 
tbe custody of the Murshnl, and uL the other 
PriEoners nera remanded to prison, because 
they would nut find sureiies tot the good bo- 
lutviour. 

Mieb. 6 Car. |, B. 
JolinSclden was committed to (he Iilarshal- 

a of the King's- Be II cb, for not puttiug in 
Soretiet for bis good behaviour. There were 
with him in the same prison, Iloharr, Stroud, 
lod Valentine. In tlie end of Trinity Term, 
6 Car. the lickness increasing in Suuthwsrk, 
the three last named made suit unto the Judges 
of the King'a-Bench, to be delivered oter to 
tbe Gatehouse in Westminster, to avoid the 
The Juilges thouglit it charity, and 
by writ lo tbe niirshal of the King's- Beni^, 
commanded him to deliver them to the Keeper 
of Ihe Gateboiuf, and sent him a writ to re- 



lioaraady in £ 
^gaifrt ibani. 



.%>A^ ChMf-Jnstice. If now you 'refuse to 
tmi Stsretie* for the good behaviour, and be 
far ibat caase remfibded, -perhaps we nfler- 
watdkwill not grant B If idiesiCorput for you, 
iaamoch M we are mademcqaaiated with the 
eaaie of your impriBonmetH. 

Adtlof, the Kin^ SeijcBet, offered his own 
bail fix- Mr. HoUu, one of tbe priionen, wbo 



n, but nhen they v 
the Lord-Trensurer to 

avoid tbit danger, ha 
tbe Gatehouse; which 



whilst tliey were in i 
all gone, made suit 
move tbe king, that, 
might be removed 

he did, and sent a oarrBni unoer iiis nana to 
niirslial, signifying his majESty's. pleasure 
move liim to the Galebuuse ; accordingly 
he was removed. Thereupon, when tbeJudgea 
came to town in Michnelmaa Term, they called 
tbe Marshal to account for hia -Prisoner, Mr, 
Selden; antf he presenting untu them the Lord 



* *' This motion of di«chac^ing p 
from the king hjinself; who had conlcrred with 
the Judges, and had. declared his content tbe 
Prisoners should be bailed, notwitlisi&ttding 
their obstinacy, that they would not uo nucb 
as present a Petitioi) to him to cipresa, that 
' tliey were sorry he was offended with them.' 
But tbe Prisoners he^tan now to value them- 
telvet upon tlieir suiEeriog, and bad to much 
countenance from severnl of their late fellow- 
members, that they would niit now accept ofa 
deliverance, but unanimously refused to find 
sureties for their behaviour: nay, Mr, Hollia 
was so indusitiouB lo be continued in custody, 
thnt when olfered liis own bail, he would not 
vield to. the cuutse of the Court, to be himself 
iiound with liim. And even Mr. Long, who 
had aalually found sureties in the Chief Jus- 
ticaa CliBmher, detlnred in eourt, that bis anr*- 
tiet should no longer continue. Such a merit 
did the; now place in confinement, as to Inboar 
agaioiit their own hbrrty; and by tudi glorying 
io penecutJon to raise a popularity to tbeoi- 
selves, and cast :m oilium ou the kiog." i Kas- 
tiel, p. 4i9. 



S91] SI'ATB TRIALS, 50h. t. l6S0.—Fit)eeeditigsagaiiutW»i. Stroud md other*. [IK 

priaon of the GaleboiiM, but in th« nrw build- 
ing thereto, sHjoinint; ; unleii when ih^j once 
wiibrirew themselves to a doje-Kool, which vai 
pliu'ed near (o the pariour, ind wii part of the 
old prison of the Galohouse. Ih'n ETirienrc 
was giten lo both tlie Juries, andbotli oflbem 
returned their Verdicts seveniUy, ' Tljat they. 
< were not Guilij,' according lo I tie InfomiBUon 
exhibited against them. And in this case it 
was debated ut ihe Bar and Detach, wbetlierbr 
this receipt and contiouance in the new house 
only, ii may be said, T)'at tlicy ever had heen 
imprisoned f And the Jodges held, 'That their 
' voluntary retirement to the dose-stool made 
' them to be prisonen.' They resolvAd also, 
that in tliis and alt other chms, although ■ Pr>- 
•oner depart from prison with hi* keeper'i 
licence, yet it is an offence nswell punishable 
in ilie prisoner os in ihe keeper. And Cal- 
thorpe made this difference between breach of 
prison and escnpe; the fiist is ' agaiiul the 
' Gaoler's ivill ;' the other is ' with his cmisrot, 
' but in both the Prisoner is poniihabls ;' 
whereunto the' «hole Court agreed.- It wM 
'also r^siilTed that ihe PrisoB of llie King's 
Bench is not any local prison, conliDed only to 
one place, and ihat even place where lay 
person a restrained of his libeny is n priMn: 
as, if one take lanctuary and depvrt tbence, 
he shall be said to break prison.' 

In the next parliament, *hicfa met April 13, 
IG40, it was referred to a committee, to con* 



Treasurer's Warrant by the king's direction, 
the Judges (old him il "ould nat serve, fur he 
could not be remored bat by writ; and upon- 
his majesty's pleasurs si^ilitd, it might so have 
been done. And altlioiigh the Judees (cere 
out of town, yet the Clrrk,oftl>e Crown would 
liBve made the writ upon so goi>d a warrant. 
Hnd it miRht have been subscribed by the 
Judges at itieir retnm. And to avoid the like 
error herea'ler, the court sent justice White- 
locke lo the Lord Treasurer, tu tet him know, 
that Mr. Selden never looked nfter any of the 
Court, bnt sought a new and irreguinr way lo 
be removed without them. The Lord Trea- 
surer made a very honourable answer, Tliat he 
would not move ne kiitg for Mr. Selden to be 
removed by this means, until he sent him word, 
on bis credit, that it iras a legal way; and told 
tbit Judge, that Mr. Selden vnt at the Judges 
dispose, lo Remove back when iber would, for 
it WHS not the king's meaning to do any thing 
contrary to the order of tlie court, or their 
fonnnl proceedings : so Writs were spit this 
HicliaelmBs Temi to remove the four Prison en 
bnck again to the Mnrshnlsca. 

Tbb CisE OF Sib Miles Hobakt, asv Wil- 
liam StHQUD, lisa. 
On the a3rd of January, the Attorney-Ge- 
neral eihibited two serernl Infbmintions, the 
one B^nst Wm. Siroud, eta. the other against 
sir Miles tlolyirt, knt. The charj;^ ngninst 
both of them tliereiii, was fur several escapes 
«ut of the prisob of the Gatehouse ; they both 
pleflHed, Not Guilty. And their cases appeared 
I he OS followeth : The said William Stroud, 



alleged aeninst them, iu their carriage in the 
Mouse of Commons at the Inst parjiflment. 
Afterwards in Trinity Term, anno S Caroh, 
both of them being by order of this conrt, and 
by a vrnrraot from the Attorney-General, to be 
Temoved unto the Gotehonsa ; the -warden of 
the Manhalsea, wh«re they were before im- 
prisoned, sent the said Stroud to the keeper of 
Ihe Qntebnase,.who received him into his house 
tateiy built, aoil adjoining to the prison of the 
Gatehouse, but being no port tliereof. After 
which receipt, tlie tnrne nighi, he licensed the 
laid Sfroud lo go with his keeper auto his 
cbainber in Gray's-inn, and there to reside. 
Sir Miles Hobart was also' by the said warden 
of the Manhalsea, dehvered to the keeper of 
the Gatehouse, but being sick, and abitjing at 
his chamber in Fleet-street, he could not be 
lemoved to the prison of tiit Gatehouse, but 
there (X)Htinued with his keeper also. After- 
waifls the Sickness incressing in London, they 
(with ihe licence of the keeper of the Gate- 
booic, a* it was proved) retired with their 
anderkeapers to their se^-eral bouses in the 
country for the spape of six weeks, until Mi- 
chaelmas Term then nett ibllowiii^, when by 
Arectionofthe said keeper they returned to his 
konse; but in all that t^ce it could iMt be 
prgTcd, ibat they were in any put «f Dw vld 



* Mr. Whitloeke, in his Memoiinlt, f. iS* 
says, " In the year 1631, some of the iinpcj- 
Boned Parliamrnt-men, upon tlitir Petition, 
were removed from the prisons wherein they 
then were, to other priwins, to prevent the dau- 
uer of the sickness tun increalin;:. Sir MilM 
Hobart pat in sureties for his good behavimr, 
and so was discfaareed Irom his impTisoament. ' 
—Anno 1631. Sir John Walter died, a {nve 
and learned Judge ; he fell into the king's dis- 
pleasure, char^ hy tits majesty ' for deslinf! 
' cautelously, and not plainly, with bun, in ibe 
' business concerning the parliament-men :' ss 
if he hod given his opinion ti> the king privately 
one way, and thereby brought him on the stage, 
and (hero lefl bim, and ihea wai of mother 
Judgment. His 0)iinion wni conimrj lo *II 
the rest of the Judga, ' That a I^tiaa»Bl- , 
' maq for misilemeaiior in tlie houM, criminally, 
' out of his oSice and duty, might be only in- 
* prisoned, and not jiirtber pri>ceeded againit ^ 
which seemed very st>«iige to the other Jadges, 
because it could uot a|^>ear, whetlier the party 
had committed aii offence, unless be might w 
admitted tobii answer. The king discharged 
hiraof his service by Message, yet be kept his 
place of Chief-Baron, and would not tear* it 
bat by legal proceeding ; because his polaBt ef 
it was, Quam diu k Unt getitrit,, ana it tsnsi 
be tried whether he did iatt te gftttre, or not ; 
he never sak in cowt aftur the king locba^ 
him, jci Md hii place liU Iti dietL" 



t98] STATE TRIALS, 5 Ca. I. ie29^Fnixediiipi^amuSirJ.JSBic*mdotlKn. [394 
Speaker doc t« obef llie commmnda of the 
hoiue ; and iliat it appeared iIie Speaker did 
adjourn tb« house by commnnd of the king, 
•rithuuc consent of tbe hou^, which it also a 
breach of privileEr; it was therefore ordrred, 
thRt this ibuuld Ije humlil^ represeoted to his 
majesty, fiui tbii parliatnent being sood dis* 
solved, vii. May 5, 1640, nothioK was done for 
liieM Gentlemen, but in the next parliunent, 
which met Nor. 3, 1610, reparation wal or- 
dered them ; a* njJI be «bewD in tbe following 
proceeding. 



pat tbe qoeMion lyr ooamwod of the house; 
•nd tbe CMDmittce ordered to state matter of 
fact, and so report 

UoBda*, April 20. Mr. TieasureT reported, 
That sir John Fiocb lute Speaker did not say, 
' Ue would aot put the qoestion ;' but that, 
' He dunt not put it:' tbat ' he left tJie Chur 
Mt ut disobey the bouie,' but ' to obey hi* ma- 



'Aab 



130. Proceedings against Sir John Elliot, Denzil Ho*llis, es^ 
and Benjamin Valentine, esq. for seditious Speeches ia 
■Parliament: in B. R. Mich. J Charles 1. a.d. 1629* 



Sir Robert Heath, the king's Attomey-Ge- 
Beni, eibibited informaiioui in this court 
■gkiiMt sir Johu EUiot, knight, Danzil Hollia, 
■M Benjamin Valentine, aqn. the effect of 
which wa*,t Tbat tbe king that now ia, ibr 
■reight; cauiea, nich a day and year, did sum- 
mon ■ parliament, and lo that purpose tent tiis 
writ to lite sheriff of Comwtdl to chute ' 
knights : by virtue whereof tir John Elhot 
cboeeo and returned knight for ComwaU. And 
that in tbe laiite miuuier, the other ilerendants 
were elected burgesses of other places, for tbe 
aalBe parliament. And tbewed further, that 
sir John Finch was chosen for one uf tbe 



publidjr nnd maUciuasly in the house of ct 
mom, to rdisc teditton between tlie king. 
Moblo, and people, uttered tliese words, 'T 
' tbe Conned and Judgei bad all conspired 
■ trample under fi>ot the Liberties oftheSub- 
' jecta.' Ue fiirther shexed, ihat the king had 
paver ta call, atyoum, . and dissuU* parlia- 
ments : and (hat tbe king, for divers reaiions, 
had a purpose to have the liouse of commons 
■■^umed,andgave direction to sir John Finch, 
then the Speaker, to movf an adjournment; 
BOd if it should not be obejed, that he should 
furtfawiUi come from the house to the king. 
A«d. that the Defendants, by confederacy 
afbrebsndi spake a long and continued ipeec)^ 
which was recited verl/atim, in wliich were 

* Hie king at first intended to proceed 
againM the nbovc gentleman in the Star-Cham- 
ber, t(f which end an Infbrmalinn was exhibited 
against them in that court, on the 7th of Ma;r; 
boi that being dropped, they wri-e 'proceeded 
Bgaintt in the King s-banch, and (he same mai- 
lers in eSect were set forth, as in tbe Infbr- 
nution in the Star-Chaoi'ier. 

f See tbe Infiinoalion in the Kins'a-bench, 
the Defendant's Plea, the A tiorncy -General's 
Demurrer.&c. at large, at the end of the Cue, 
upon occasion of tbe Keieraion of the Judgment 
in B. IL by the House of Lords on a Writ of 
£tior, L. s>. 1068. 



divers malicious and seditious words, of dan- 
geroui con»0<)ueiice. And to (he intent that 
they mi^t not ba prevented of uttering their 
premeditate speeches, their intention was, that 
the Speaker should not go out of tbe Chair rill 
tbev had spoken them ; the Delendanti, Uollis 
and Valentine, laid violent hands upon (be 
Speaker, to tbe great affriEhtmeot and disturb- 
ance of the house. And the SnCHker being got 
out of the Chair, thev by violence set him in 
the Chair again; so 'that tlrera was ■ gfeat 
tumult in the house. And after the Hid 
speeches pronounced by sir John Elliot, Hollis 
did racapilulafe ihein. 

And to this Infurinatinn, 

Tbe Defendants put in a Plea 10 lie Jorl*- 
diction of the coui^ because ■ these offence* 
* are supposed to be done in parliament, and 
' ought not to be punished in this court, or in 
' any olltfr, but in parliament.' 

And the Attorney- General moved the Court, 
to over-rule the plea to tlie jnritdictiBQ. And 
(hat, be said, tlie court might do, altlinugh lie 
had nut demurred upon the plea. But the 
court would not oier-rnle tlie plea, but gave 
ilay tojoin in demurrer this term. And on the 
Rrsl' da; of the next term, the record ^hnll he 
read, nnd within a daj ailer shall be argued 

Hyi/e, Chief- Justice, said to tbe counsel of 
the Defendants ; So far light we will give you : 
■*" ■• the Judges - 



sion, and have, wiih great patience, heard' 
the arguments on both siifes; and it wAs re- 
solved by them i)\l with one voice, That an 
offence committed in parliament, criminally or 
conteBiptuniisly, the parliament being ended, 
rests punisbabfe in anutlier courL 

Jonei. It is true, that we ell resolved, That 
■n offence committed in parliament against tlie 
crown, is punishable after the parliament in 
nnotlitr court; and what cnurt shall that be, 
but thecourt of theKii^s-bench, in which the 
king, by iniendmen^sittaih f, 

Whuloeke. The question it now reduced to a 



Goo;;lc 



a!)5] STATE TiEUALS, 5Ca.1. 1609. — Pnoeedingt cgaiM Sir J. Elliot andoOieTt. [9SQ 



narrow rooiD, far all the Judges arc agreed. 
That ail olTencecoiiinuitefliDpaHianicnt^aitisc 
the king' or hu government, mar bepuciisbed 
put of pai-liamenc. So tltot the lole doubt 
which DOW remama^ is, wliether tbia court can 
puniah ic. 

Croke agreed, That 90 it bad been re^olrcd 
by all the Judges, been use othenrise there' 



e of juaticc. And bv bim, if such 
lie punishable in anotRei 
coutL shall punish it but th 



an offence be punishable it 



er court, whni 



the bighett court iu the realm for cruoinal 
offences? And perhaps not only crjminnl ao- 

tioDs cummitlea in parliament are jiuniihable 
here, but words also. 

Mr. MatoH uf Jjodtlo's-Inn argued for *ir 
John£lli.it,oneoftbeDerendnnt>. The charge* 
in [lie Iiifonnation against him are tbrec: 

1. Far Speecbes. 
' 3. For Coutempts to the King, in r««uting 
the rtdjoui nmenl. 

' S. (urConipiracy with theothcrDefendnnts, 
to detain Mr. Speaker in the Chair. 

In the discii9:>ioii of tbete mattery he argued 
much [0 tbe aaiiie intent he had argued belbrf, 
thtreL'rc bis argument is reported here very 
briefly. 

t. For liis Speeches, tbej contain mattw of 
■ccusntiou ngBinst some ^at peers of the 
realiu ; and as to them, lie uiid, tJiat the kins 
cannot lake notice 6f them. The Parliameai u 
a CounciJ, and tbe Grand Council of the king ; 
and coandls are secret and close, none otlier 
hareQcceta to thoK council) of parliament, and 
thej tliemselvn ought not to impart them with- 
out the consent of ibe whole huu<e. A Jury ia 
ft leet, which is sworn to inquire of offences 
within tbe said jurisdiction, are annrn to keep 
their own counsel ; so (lie house of commons 
inquire of all grievances within the kiagdoin, 
and their counsels are not to be revealed. And 
to this purpose woa a Pditinu, 2 II. 4, n. 10. 
That the king shall not pve credit Ui any pri- 
VQic reports 'if tiieir proceedings, to « hich iha 
king assents: therefxre the king ouglitnntto 
pie credit to the information of these offences 
in this case, S. The words tbeoiselies contain 
•evemluccouitiiMiBorgrfatinen; andtbciihertj 
of accusation hath always boeii putliamentary. 
50 E. 3. Parliament Roll, n. 31, the lord Lati- 
tncr was impencbcd in parliament for sundry of- 
fences. 1 1 R. 2, thp arohbi«hoi> of York ; 18 
H. 6, n. 18, the iluLe of SuQulk ; 1 Jilar. Dy. 
S3, (be duk« of Norfolk ; 36 H. 0, n. 60, uu 
Vickar General ; 3 and 3 E. 6, c. 18. the lord 
Seymour; 18 of kinejames, tbe lord of St. Al- 
hauB, Cbaocellur of England i and 91 of kii^ 
James, CninSclil, Lord Treiisurer ; and 1 Car. 
the dn'iC of liutkiucham. 3. '1 bis is a privilege 
. of parliament, which is determinable in pailiR' 
inent, and not elsewbere ; .11 B. 3, n. 7. the. 
Parliament Rr>ll, a Petition ethibired in par-' 
liameDi, and allowed by ibe king, That the li- 
berties and privik'ges at parliament slhiU only be 
discussed iheic, and not in other courts, nor by 
the common, nor civil law; (tee this Case more 
nt large in S^cn'iNotciupcuiFartescuCif.ia.) 



1 1 B. S, Boll of the process and judpneat. An 
appeal of Treason -was e&bibit«d againat (he 
arccbbishnpofCan(erbury andotbtii,Bnd tberr 
the advice of the sagas of the one law and (be 
other being required; but because the Bpp«*l 
concerned persons which are peers of tbe nabn, 
whidi are not tried elsewbn« than in naiiia- 
ment, and not in an inferior coun. '28'H. 0, m. 
18. There being a qaesiion in parliament con- 
cerning precedency, between the cu-1 of Atm^•. 
del, and the earl of Devon, th« opinio* of tha 
Judges being demanded, tbej answered, Tlat 
this qneatioo ought to be determined by tk» 
parliEunent, and by no other. 31 U. 6, n. S9, 
96. During tbe p(or<^ation nf the pariumant, 
Tborp that was the Speaker, was ont in eHC(»- 
tionat ihe suit of iheduke ofYork; and upon 
the re-DSsembiy of ibe paiiiameni, the commona 
madasuit to the Liug and lords tn have their 
Speaker drlivereil. Upon (hit, tbe loids de- 
mand (he opinion of the Judges; *bo aniwn'. 
That they ought n:.t to determine the privi leges 
of tbe high court of parliainent 4. Thiaaccn- 
sation in parliament is in legal coone ef juMicC( 
and therefore the accuser shall never be im- 
peached, 13 11. T, nndll Elii. Dy. 986. Forg- 
111)! of foise deeds brouglit ^ain»t a peer of the 
realm, action dt teandkiiM magiuitkm, dnth not 
lie. Coke's Rep. 4. 14,Cu(lerandI>iiy'>cose, 
nhere divers Cases are likewise pjit to tliis pur-' 
pose. 35 II. 6, 15. If epon (1^ view ol the 
body the slayer cannot be finind, the Coroner 
oughttoeiiquire. Who first found tbe dead bodvr 
And if the lim finder accuse another of the 
raurde^ that is afternard acquit, he shall not 
lukve in actiim upon tbe case, lor it was dune in 
legal manner. So it is tbe duty of the com- 
Dions to enquire of the Grievances of tha Snb- 
jects, nnd the causes thereof, and doing it in k 
legal manner, ig 11. 0, 19. 8 H. 4, 6. in conspi- 
racy it it a good plea, that be was one of the tn- 
dicturs. And 30 H. 6, 5. that be was a grand 
Jury-man, and informed his eompanions. And 
?1 E. 4, 6, r. and 35 U. 6, 14. that ha was * 
Justice of Pe&cc, and informed (he Jury, 9f Asa. 
p. 1!. is to the same purpose. Atm) if a Justice 
of Pence, the first flnder, a juror, or indietor, 
shall not be punished in such cases ; ifiiHiori, 
a member or the bouse of commons iWl not, 
tvhD, as 1 H. 7, is a Judge. 37 As*, p. 44, may 
be objected, w4iere two were indicted of a cun- 
(piracy, because ibey maintained one another; 
but the reason of the said case was, becauaa 
maintenance is a matter fbrbidden by the law ; 
but parliamentary accusation, which is our mat- 
ter, IS not forbidden by any law. Coke's Rep. 
P. 56. (here was s conspiracy, in procuring others 
to be indicted. And it is true, for there it was 
nut hbduty to prefer sdcb accusation. (9) Tbe 
accusation was eitra-jndicial, and nut of court; 
but it was not so in our case. (3) Words spoken 
in pariiament, which is a superior court, cannot 
be questioned in this conrt, which ia inferior. 
3 £.3, 19. and Stamford 153, will be objected, 
where the bishop of Winchester was arraigned 
in this court, because be departed (be perlia- 
ment witbont Uccoce ; there v bat tbe opinin 



S9T] STATCTOIAU, SChuixiI. HMd—Mt^HauSpeeaait 

tiaBOop,mJa»at^vr»Btnueni,P.. 3 E. Iff. 
Aai it ia u b« obmred, that (he plem of the 
th«e, ms nerer orccmlcd. From this 



[399 



bUmtl: 

I ^itncr, tbu Scroop wu not conitant to hit 
■putm^ which *n BiiddeD, bdi^ in tte satar 
taB m vhicfa the pW waa enteicd ; ar if he 
WB^ jM the other Judgas agree Dot Hitb him ; 
■Bd alM at Uft the bsbop nu dischaif^ed b; 
Ifa kiofS writ. Frm thu I gatlter, that the 

rioa of the eontwu agaioit the king, as in 
SO. in FogifM't CBM, where the optnioii of 
tte cooit was a^ainit the king,' the mrtj 

Uar^ by pnTj teaL 1 mid 3 Phil, 

Mr. faatfa been otyected, where an iafbrmation 

* tha ooart wh pnferred uainit Mr. PIbwden, 
ad otber Dtcoibera of the booM <^ common i, 
far deputing frgm the Iwuse without iicence. 
fct in tliat oaae*! obaene theae mattera. fl) 
TIm ibis informuioQ depended during all iha 
fife of the queen, and at Ibm wai tine 4it, hj 
i« death of the queen. (3) In the »id case, 
••plea waa mad* to the jurisdiction of tbt 
Mit, at here it ii. (3) Some of them mb- 
KUd tbemselvet to the fine, beciuise it was 
n^, for it wu hut SSt. t4. Bnt this cannot be 
yp^M • precedent, because it never came in 
JMimeQt, and no i^inion of tha court was de- 
hwed therein. And it ii no argument, that 
Bnaiue at that-time they wouM not plead to 
tbeJarisdictioD, iherefore'we now cannot if we 
■Mil''. (4) Tbcae offmoea were not done in 
iJe^rliaiBeni house, but elsewhere by their 
HBMce, of wbich the catmtrjmaTtfJie notice; 
ntDDtofourmattert done in parliament. And 
Jjfanc* froiB pariiament, is ah'OJletice aiobu 
'"*™f'* wmnoDS topM-l lament. 30 R. 9, 
httanent Bolt 13. Thomas Ilacksey was in- 
sctcd of high treason in this court, for prefo^ 

' ngPetiiioa in parliament; buCl H. 4, n. 90. 
" prtferred a Petition to bare this juflgneot 
WW, and to it was, although the king had 
[jTOoed him before. And 1 H. 4. a. 104. all 
tMamtmum made petitioo to the nme poiv 
p»t, becauK this tend* tn (be deatniciion of 
"or pnril^s. And [bit was Iftewiie granted. 

♦ H. i, c. 8. Strede'B caae, That all condemB»~ 
*w imposed upon oiie, for preferring of any 

. ™; 'PwtiOE. or reasoniog in partiament, are 
™d. And this halfa alwajs been conceived to 
*«« general act, becaajcihe prajers, time, 
■^ and perwim are general, and ^le answer 
*"■ general ; fat a general act ij alwayi an- 
"W with, Lt ny Doit, >U a particular k» 
wa Sou dnitfail al parlyu. And S3 H. fl, 
>hii. a general act is always iciolJed, and so 

«■ For the second matter, the ContMnpt to 
™ cominand of the adjoannneiK, Jac. 18. it 
•» qiifiiioiied in parliament, whether the kiiw 
» adjonm the pariiament, (akhougb it be 
■moat doubt that the king can proroeue it). 
™ «ne Judges mohe, that the king may ad- 
JWn the house by commission : and 87 Elii. 
■ «i resolved accnrdiiiglj. But it is to be 
™«ttl, that none was then impeached for 
■*«* that question. (S.) It b to he ob- 
•»«, Am ihey cewriM, ihai the adji 



not resolved that' 
aand, signified bjr 



it may be by a verbal c 
uioilier; and it derogate* not from the king^ 
prerof^ve, that be canaot so do, no mor« 
than lu tbe caw of 26 B. 8, 8. tbiat be camiot 
grant one acre of laud by parol. Tbe ki^ 
oimsdf may atyonm Che bouse in penoo, or 
luder the great teal, but not by verhnl me*- 
sagf^ fir none is bound/ to give credit to sucb 
message; hut when it is under the Great S«af, 
it it tttte MMfiM. And if (here was no cam- 
maad, then there can b« no contempt in the die- 
obedieace of that command. (S^ In this, no 
contempt appeal* by tbe iuformauoD ; lot tbe 
information is, that tbe king bad pomer to ad- 
journ parliamenu. Then pot the case, the 
oommaod be^ that they should adjourn tbeia- 
selvesr this is no pursuance ot i£te power 
which be is' supposed to have. The house inajr 
be Mljaumed two ways, tft wil^ by the king, or 
by jKe bouse itself: (be laHis ibeirown toluif 
Carf act, which tbe king canaot compel, for, 
' Volnntas uon cogitur,' 

3. For the third matter, which is the Coo- 



of the house may advise of matters out of the 
honae: for tbe bouse itself is not so much for 
oonsultatioiis, as for proposition of thto). Antl 
90 H. 6, Si. a, that inquests which are swoni 
Ibr the king, may enquire of matters elsewhere. 
(3) For the Conspiracy Co lay violcut bands 
upon the Speaker, to keep him in the Chair ; 
the haute ImCIi privil^e to detam him in the 
Chair, ami it waa but li^tly and softly, and 
other Speakers have been go served. (3) 1 be 
king -cannot prefer an iufoimation for (rtsposs; 
for It u said, (he king ooght to be loliiruied by 
a jurv, to wit, bv indictment, or preseutmeot. 
(4)Ttut cannot DC any contempt, because it 
appean not (bat the bouse was adjourned ; and 
if so, tfaen the Speaker ought (o remain in the 
chair; for without him, the house cannot he 
adjourned. But it may be objected, that the - 
in&mation is. That all thete matters were 
done malicioiisly and seditiously. But tt) this 
I aatwer. That this is always to be uAdertto<d 
according to (be sulgecC matter, 15 E. 4, 4. 
and 18 H. S, 5. A wife that bath title to tuve 
dower, agrees with another to cuter, (which 
hath right) that she against him may recover 
her dower. This sbalT not he called Cotib, 
because both tbe parties have right and titles. 
(S) It will be objected. That it these matters 
shall not be puniUiable here ; they shall be un- 
punished attogetber, because tbe parliament ii 
determined. To tins I say. That tbey may be 
punished in the subtequent parliament, and so 
there shall be no failure of right. And dmut 
times inatten in one parliament have beoi 
continned to another, as 4 E. 3, n. Iti. the lord 
Berkley's Case, 50 E. 3, n. 185. SI It. 2, c.4a. 
6 H. 6, B, 45, 46. 8 H. 4, n. IS, offence in tbe 
forest ought to he punisheil in eyre, and eyres 
oftentimes were not held but every ihird year 
C. 9. Epistle, und 36 E. 3. c. 10. A pnrlia- 
oient mmy hf every ytv. £«or in thit cenrt 



999] ?rATE TRIALS, 5Ch.I. 1629— Proceeding t^tmit Sir J. moimdoilitn. [SCtt 

ipit>], tor tiMj 



canDDt be reversed but in pRrliameflt, ini 
it was iievet objected, Chnc therefore ihere iliaU 
be m hilare of righi. 35 E. 3, c. S. If a new 
cue of treasoii happen, which is doafatful, it 
■ball Dot be deteniiii'ied till the next parlia- 
ment. So ID Westm. S, c. 98. whire ■ ue* 
caie happens, in which there ii no writ, hil; 
■ball be made' till the next parliament. And 
j9t in these ca^i, there i» no failure of right. 
And 90 the judi-es have always done in all 
tlifiiculi caae^i they have rtferred [he detemu- 
nation of ttmn to (he neit parliament, as ap- 
peals by S E. 3, 6, T. 1 E. 3, 8. 33 H. 6, 18. 
5 E. 8, Dower 145, the case of dower of - 
rent-char|e. And 1 Jac, the Jud]^ refnse I 
deliver their opiniona concerning the union of 
the two kingdoms. 1'he present esse is great, 
rare, and without precedent, thereEbTe,%ot de- 
terminable but in parliament. And it 
dangefoiM consequence; for (1^ bj the same 
reason, ell the meiuber* of tbe fioufe of coni- 
■DDns ma; be questioned. (3) The partiM shall 
be disabled lo make their defence, and the 
clerk of parlinmsnt is nat bound to disclose 
those particulars. Aad bf this meaDs, the de- 
bates of a gre^t council snail be referred to a 
petty jury. Aad the parties cannot mnkeju*- 
tification, for they cannoi speak' those words 
here, which were spoken in tbe parliament 
withouE slander. Aad tbe defeadants have dui 
means ro ompel any to be witnesses fur them, 
for the members of the hoase ought not to dis- 
cover the counsel of the house : so that thej 
are debarred of juitification, evidence, and 
witness. Lnstly, By this means, noDe wUl ad- 
venture to accuse any oRenrier in parliament, 
but will ralhtr'iubmit himself to the conmon 
danger; for, fnrbis pains ba shall be imprisoned, 
and perhaps |irs>ily fined: and if both tb 
be unjast, yvt the party so vexed can have 
Kcumpence. Therelbre, &c. 

T/ie Court. Tbe question is not now, w 
ther these matter* be offences, and whether 
true or false. But admilting them to be of- 
fences, (he sole question is. Whether this < 
may punish them ; lo that a great port of your 
argument is nothing to tbe preset question. 

At another day, bebg the next, 

Mr. C^horpt (who succeeded Mr. Mason, 
as Hccorderof London) argued for Mr. Valan- 
tine, nnather of the defendants ; 

1. In ^neral, he said, for tbe nature of the 
crimes, that tbey are oftbur sorts: 1. In Matter. 
8. In Word*. 3. By Consent. 4. By Letten. 

Two of them are laid to (he charge of this 
Odendani, to wit, the crime of the Matter, 
•ad of Canunt. And of offences, Bracton 
makts some public, some private. Tbe of- 
fences here are pablic. And of them. Mine 
•re capital, some not capital ; as astault, con- 
•piracy, and such like, which have not the po- 
nishment of litb and death. Public crimes 
capital are such as are against ttie law of na- 
ture, as treason, murder; E will amie, that if 
tlKj be committed in parliameot, ttiey may be 
questioned eisewbere oat of parUaiiMitt. Bat 



in our case, the crimes are not 
are assault and conspiracy, ' 
cases may be justified, as appears hy 93 H. T, 
KeU*. 9». J. Ass. 3 H. 4, 10. 82 E. 4, 43. 
Therefore this court shall not have jorisdictian' 
of them, (or tliey are not against the law of na- 
tions, of God, or natore ; and if thcM malttn 
shall be eiaminable here, by coDsequance oil 
actions of paiiiamcnt-men may be drawD ia 
qoettion iu this court. Bat it seems by those 
reasons, that this coart shftU not ba?e jutintio- 
tion, as this case ii ; 

1. Becatue these Offsncet an justifiable, 
bein^ but tbe brii^g the Spe^et to lb* 
Chair, which dso peiliap* was done by the 
Votes of the Commons; bat if these nattm 
shall be jnuified in this conn, no trial can be, 
(or upon issue of his own wrvng, be cannot b« 
tried, because acts done In the house of coot- 
mons are of record, as it mi resolved in ihe 
pai^iament, 1 Jac. and 16 B. 7, 3. C. 9. 31. 
ore that such maners cannot be tried by tte 
country. Aifd now they cannot be tried by 
record, because, as 9S H. 8, Dy. 3S. ii, an in- 
ferior court txnnot write to a soparior. Aod 
no Certiorari lies out of ibe Chancery, to send 
this here by Mittimus, for there was never any 
precedent thereof; and the book of the boms 
of commons, which is with their clerk, oogbt 
not to be divalaed. Aod C. LittU. is, that if a 
nan be indicted in this court for piracy con- 
mitted upon the see, he mav well plead to tba 
jurisdiction of this court, because this court 
cannot try it. 

3. It appears by tbe old Treatise, ' De maia 
' tenendi Partiamentum,' that tbe Judaes arc 
but assistants in the parliament; and if any 
words or acta are made there, tJiey bate no 
power to contradict or controul them. Theo 
IE is incongruous that they, af(er the parlioinaBt 
dissolved, shall have puwer to punish socb 
words or acts, which at the tiioe of the speaking 
or doing, they had not power to contradict. 
There are superior, middle, and mare inftiior 
magitttBtes ; and the superior sball not lie nib' 
iect to the controul ot the inferior. It i) a 
position, that ' in pares est nullum imperiuai, 
' multo minus in eoa, qui ma^i imperiom h>- 
' bent.' C. liul. says, That the pailiament is 
the supreme tribunal of tbe kingdoto, and they 
are Judges of the supreme tribunal ; therefbrs 
they ou^t not to be quesiioaed by tbeir infe- 
riors. (3). The Offences objected do concern 
tlie privileges of parliament, which privilqo 
are determinnble tn parliament, and not else- 
where, as appears by tbe precedents which 
have been died before. (4.) The Common Law 
haih assigned proper courts for matters, in re- 
spect of tbe place and personsi 1. For tbs 
place, it appears by 11 Ed. 4,3, and old Eatries, 
101, that 111 an fjeclioaf.Jirniie, it is ft good plea, 
thai tbe land is ancient demesne, and this ev 
dudes all other courts. So it is for land in 
Durhimi, old Entries, 419, for it is question- 
abte there, and not out of the counlj^. 3. For 
peruMw, U. 15 U. r,roL03i old EntriE*, 4T. 
If a derk of the Cfaancet; be implended in 



,e.( 



>':;lc 



aoi] £rrATBTlUAIA> aCiuu.uI. ie*».~-/orieditbMiSpeaAamParUameU. [803 
hftTD jurixUctioD, ih* court (timjr give judgment 
Bccoitling [u law, aod yet conirarj to parlia- 
ment law. Tor the puLuBieiit iu divers cssn 
hatb n pecuJiar law. Notwithttanding the Sta^ 
tute of I U. 5, c. 1. That every burgesi ougbt 
to be resident witliin the borough of wliicb b^ 
is burgcBB, ;et die conitant usage of par- 
lianeot is cuutiarjr thereunto; and if aucb 
malter shall be in questiun before ye, yt 
ougbt to adjudge according to the statute, and 
nut according to ^Ijeir usage. So the houte 
ori«:ds huh a special lavr alio, as appear bj 
11 R. i, the KotI of the proccas and judgment 
(nhich ha(|i been cited before to another pur- 
[KMe^ where an appeal ivat not according to the 
one hw or the other, yet it was good accordinji 
to tb* course of parliauient. (9.) Becaute thii 
MjpMMDt tlie borou)^ of St. Uermaiiis, foxn matter i> brougbt in ibis cnurt by way of Infor- 
wbeuce he wm lent ; therefore be is in nature mation, where it ought lo be by way of Indict- 
ment. And it appears by 41 Ass. p. 13, that 
'' bill of Deceit be brought in this court. 



er, okl Entries, 413, then much mora 
wuen uff enoe s are dooa In parliament, which ii 
eicmpt in ordiaary juriidictionj they sbalf not 
he draira into qneHion in this court. And if 
a man be iadicicd in this court, he may plead 
MDCbiary, 89 H. 7. Kcilw. 91. & 33, and shall 
be mcored, SI E. S, CO. The^bbot of Burj's 
Caie is 10 the same purpose. (5.) For any 

thing that appears. V" "" '"' '"""' 

approTed ofth 



e matters, therefore t^y ought 
out IU uv ijuntioiied in this court. And if 
they be offences, aiid the said liouse hath not 
pmabed them, this will be a caiDniof impu- 
tation upoo them. (6.) It appears by the old 
Entrie*, 446, 447. that luch an one ougbt to 
MDt the borou)^ of St. Germaios, fiom 
m tent ; therefore be is in nature 
•dor, he ihaU not be qu^tioned 
Ibr any thing in the ezicotion of his'uffice, if lie 
tlo DDUiiiig agaiost the Law of Nature or Na- 
tions, as it is the case of an ambassador. In 
ihr time of queen Elitabetb, (CauMlen's Brit. 
449.) the bishop of Boss, in Scotland, being, 
ambanador here, attempted divers matters 
agaioK [be State ; and t>y the opiniaa of all 
the (dvthans of the said tiioe, he may be ques- 
tioned for those offences, because tbe; are 
against tbe law of nations and nature ; and in 
•ucb mattcn, be shall not enjoy the privileges 
of an atubassador. But if he commit a civil 
offence, which is against the tnunicipal 



only, be cannot he questioned for it, as Bodin 
1e Repablica, ag ' 

« of 38 U. 8, 



mblica, agrees the case. Upon the StSi- 
38 U. 8, c. 15, for Trial of Pirates, 13 
Jae. tbe case foil out to be thus: A Jew cainc 
ambaMador to tbe United Province*, and In 
his journey he took some Spanish ships, and 
after wai driven upon this coast; and agreed 
npoa . the laid statute, that he cannot be tried 
asapirate here by oommisuon, but he may be 
qaestioned taUiter in ibe admiralty ; for, ' le- 
* gati ino regi soli judicium faciunt.' So am- 
bMsadort of parliament, loti par tuiounio, to 
wit, in such thinp, wliich of tbemsdvcs are 
justifiable. (7.) There was never an^ precc* 
dew, that tills cmirt bad puniahcd ofteuces of 
this nature, committed in parliament, where 
any plea was put in, as hare it is to the juris- 
diction of the court; and wliere there is no 
precedent, non-usage i* a, gooA ex,po^tor of 
die Uw. Lord lillJ. Section 180. Co. LiltL 
f. 81, says, as usage is a good interpreter of 
tl« laws, so non-usage, where there is no exam- 
ple, is a great intendment that the law will not 
tar it. 6 Elit. Dy. 330, upoo the Sutute of 
tr H. 8, of inroUinents, that bargain and sale 
of abtKue in LondDnoiwht oolto be enrolled; 
the wsnn there' given is, because it is not used. 
tS Elii. Dy. 376, no error lies here of a Jud«- 
nlenti^veu in the five ports, because such writ 
was aerer seen ; yet in tbe diversity of Court* 
it M said, that error lies of a Judgment ^veo in 
the fire ports. 30 H. 6, 39, by Asbton, thai a 
orocection to go to Rome was never seen, there- 
gwhe.di»llotted it. (S.) IT tbii Cowt shall 



where it ought to be by wnt, tbii matter may 
be pleaded to tbe jurisdiction of the court, be- 



and c 



It 



appear* by all our BcioLs„that informations 
ougbt not to bo grounded upon sunaiset, but 
upon matter of record, 4 H.'7, 5. S £. G, Dy. 
74. Information in tlie Exclieqaer, and li U. 
8, Keilw. 101, are to this purpose. And if 
(be matter be vi el umii, then it ougbt *~ ' — 



the king ougbt to be cetlified of it by in- 
dictment. 1 H. 7, G, and Slamf. f. Q.*!, a. upon 
the statute of 85 £. 3, c. 4, that Done sliallbe 
imprisoned but upon indictment or present- 
ment i and S8 E. 3, c 3, 43 E. 3, c. 3, arc to 
tbe same purpose. So bere, this informutioo 
ought to have been grounded upon indictment, 
or other matter of record, and not upon bar* 
intelligence given to the king. (10.) Tbe pr». 
sentCBse is great and difficult, and in such cases, 
tlie Judges have always outed thenuelves of 
jurisdiction, as appear* by Bracton, Book 9, 
f. 1, ' Si aliquid novi non uiitaluui in regno ac- 
cident,' 3 E. 3, 6, 7, and Dower 343. 

Now I will renuive some Objections which 
may be made. 

Where the king is Plaintiff, it is in his eleo- 
tion to brioghi) action in what Court hepleBies, 
This is true in some sense, to wit, That th« 
King is not restrained by tlie Statute of Magna 
Charts, ■ Quod cammunia placita non aequati- 
'tur curiam nosCram;' for he may brii^ his 

B:are impoHl in B. R. And if it concerns 
urbam, or other County Palatine, yet tha 
kingmay have his action bere: for [he said' 
Courts are created by patent, and the king 
may not be restrained by parliament, or by his 
own patent, to bring his action where he 
pleaseth. But tbe king shall not have his 
action where be pleaseth against a prohibition 
of the common Uw, as 1! H. 7, Keilw, 6, the 
king shall not hare t/orncdoa in Cba'ncerr. 
And C. 6. 30 Gre^r^^ Ca*e, if tbe king nill 
bring an information in an inferior court, the 
parly may plead lo the jiirbdiction. So who* 



908] STATE-IIUAI^, 3Va.lA<i39.—FneeaiStstagtm3tSirJ.EUiota»did)ten,\^ 
WM doubted, boir the -Court aliauld pracMd 
Against him (lor be, bj law, ought 10 hare h' 



the Common Law mnkna prohibition, the king 
bath not election uf hii eoort. 

The infonnatiiin b clmlra/oTtiiam itotuti, 
which Statute, as I chnceire, ii intended the 
Statute of 5 H 4, c, 9, and 11 B. 0, c. 11, 
which gtvei power to thii court lo puniih an 
, astaiilt made npon the Mrvant of a knight of 
PBriiameat Bat our case ii not within tbote 
Katules, nor the intent of thein ; for it is not 
■ntendibt?, thai the piLriianient should disadvao* 
l3^e themselves in point of their privilege. 
And this was a Trespass done within the house, 
by parhsment-meii amongst theirtelvea. And 
Cramptaii's Jurisdiction of Cotiris, ^f. 8, saith, 
That the parliament may punish' trespasses 
done there. 

Precedents have lieen cited ofPailiamenl- 
roeo imprisoned and punished for matHrs done 
in pariianent. To this I say. That there is 
«ia jitrit, and via fatti ; and ma factt is not 
.' aXnaja via ^uri*. Ct, 93, Precedentt are no 
good directions, unless they he jndidal. 

Otherwise there will bo a failure of justice, 
wrongs shall be unpunished. To this I nnswer,' 
That a mischief is- oft-times rather snfferable 
than- on inconvetiience, to draw in question ilie 
ftrivileges of paHiatnent. By the antient Com- 
mon Law, as it appears by 21 E. 3, S3, and 
SI Ass. if no infant bring an Appeal, ihe suit 
shall be staid durinj; his infancy ; because the 
|iarty cnnnat hnve his trial by bntde againSt 
the infant i but the lair is now held otKemisc 
in the said case ^ <And in soute cases, criminal 
offences shall be disi 
Appeal of Murder 1 
several Countin. 

Thitcourtof B.R.is coram ipso rege; the 
king himself, by intendment, is here in person. 
Aod, as itii said, C. g, IIB, itis, ' Suprdmum 
' Regni Tribunal,' ofordioary jurisdiction. Bat 
to this I say, That the Parltaneat is a trans- 
cendent court, and of traascendent jurisdiction : 
it appears by 38 Asa. p. S!, that the stile of 
other courts.is coram rege, as well as this is; 
ai ' coram rege in cancellarin, coram rege in 
* camera ;' and though it be toram rtft, yet 
the Judges ^ve the judgment. And in the 
time of H. 3, in this court, some entries nere 
"* coramrc^e,' others, 'coram Ilugone de Bigod.' 

The Privileges of Parliament are not ques- 
tioned, but the conspiracies and misdemeauors 
of some of them. But to this I sny, that the 
distinction is difficult and narrow in this cose, 
where the offences objected are justifiable, and 
if they be offences, this reflects upon the house, 
which hath not puaisbed them. 

The Cases ofS E. 3, 19, and 1 and S PUl, 
el Mar. hare been objected. But for the last 
'it is observable, That no plaa was pleaded to 
tbejurisdiction, as it is inour case. And ifa 

Earliament-man, or other which hath privilm, 
e impleaded in foreign coart, and neglect bis 
pleato tbejurisdiction, the court may well pro- 
ceed, 9 H. 7, 14, 36 U. 6, 34 H. 13 Jac. la 
this Couit the lord N^onrys, that was a peer vf 
parliament, was indicted (or tbc mnrder of one 
Sigpd, and pleatled lus pardbn. And there it 



I, that 
contesteth his 
fault, thereby be gives jurisdiction to tlie couit, 
and the court may give jud^Doent igaiosl bin. 
So that these cases, where it was not pleaded 
to thejnrisdictioo, eanbe do piecedent in oat 

The privil^e here is not claimed bj Pie- 
scription orCharier, therefore it ij not sood. 
But I yy, that notwithstanding this, it ia 
gnod ; for where the Comouin Law nuts a mart 
of Jurisdiction, there needs no Chanet or Pn- 
scnpuon ; 10 H. 6, 13, 8 II. 8, keilw. IW. 
Br. n. c. 515. Where sanctuary of a Cbimh 
is pleaded, there' is no nacd to make prescrto- 
tion, because every Chtitcb is a aanctuary by 
tbe common law. Ilierefora, tto. 

Sit Raiert Heath, tbe King's Attorney, the 
same day argued on tbe otheiwle, but briefly. 
First, he answered the Objections which had 
been made. 

1. Ha said, Tlipt infonnations m'^ht well be 
for matters of this itatare, which aie notcapi- 
tal ; and that there are ' many preocdcnts ef 
■uch informations. (But Note, that be pio- 
duced none of tliem.) 

S. It hath been objected. Hint tbey ai* a 
council, therefore they ought to speak fredj. 
But such speeches whit^h are Iki« pronsuDce^, 
prove them not counsellors of state, but Bed- 
inms; thi addition of one word would havs 
made it trenson, lo wit, pro^orie. . But it b 
the pIcRsore of the king to proceed in thisnsn- 
ner, as now it is. And there i) great diSereaee 
brtween Bills and Libels, and between tbsii 
proceedings, as council and as mutjnoas. 

S. That it would be of dangerous conu- 
qaencc; for by this meant none would adven- 
ture to complain of grievances, I antwer, tli*]i 
may make their complaints in a parbuneotaiT 
manner; but they may not move things, whia 



4. These matters may be punished in ^knc 
ine parliameilts. But this is impoosible, f« 
foUowing parliament-: cannot know wiih whit 
mind these matters weie done. Abo tbe 
Honse of Commons is not a a couit of justice 
of itself. Tbe two house* are but one biidy, 
and thev cannot proceed criminally lu'puniw 
crimes, but only their members by way of in- 
pritooment; and also tbey are not a Court of 
Record. And they have forbid tlieir clerk to 
make entry of their speeches, but only of mat- 
tersj>f course; for many times they speak upon 
the sudden, aa occasion isoflered. And there 
is no necessity that tbe king shotild eipect'a 
new parliamenL Tbe Lords may gtant Coo- 
miMioni to determioe matters after the puiit- 
neotended; bnt the Honseof CoramoMcsit- 
not do so. And also a n^w Uouse of Commons 
consists oFnew m^ vrbich liave no oegninnce 
of these offences: 1H.«. The bishop of Ctriisle, 
for words spoken in the parliament, that tbe 
king had i>ot rigbc to the crown, i ''~ 



:Goo;;Ic 



a05] STATE TRIAT^, i CaAU.a L iO-29.~-for mditum Spaxha in ParlianuM. [800 



ii tlih coari of IlT^b-treaion ; and then he did 
•M |ileid hii priTilege of [uirliauieilt, but tsid, 
TtM bt WW Epiteopui mocIvi, &c. 

5. 4 U. B. Strodc's Caie htitli be«n ob- 
jected. But ihn u but u paruculor tct, al- 
xlougb it be in priiit; for Rasial eiitiitea it bj 
iIk Kvat of Strode ; so the titlr, body, and 
praviio 6{ the act are piirticulor. 

6. That tills is an lateriur coait to the par- 
Ikiucal. therefore, fic. Tu tiiu I lay, That, 
CTCO Htring tlie paHiHinent, this Cuurt of B. R, 
wd oilier oouro, maj Judge uf their pntilevei, 
uof a parlimiKfDt-iDun put in eiecution, &c. 
md other cue*, it ie true tliot the judj^en 
imn ott-times declined tu give their judgment 
^lOD the privilqgfei of parliament, titling the 
euurt. But trom tbii it fLilloni not, ihatwheii 
the alTtace \a cimoiitted there, and not punish- 
ed, and the i:uil cuuK dissolved, that tberefure 
the sud matter ataall not be questioned in tbia 

T. Bjrttiit meani the Privileges of parliament 
iball be in ^rcat danger, if this court luaj judge 
flflliem. But I answer. That there is no daii^^er 
atatl; for this court tnaj judgje of acts of pnr- 

B. Perhaps thi^ie nialten were done by the 
VMes xf the house ; or. If thej be offences it 
isaa impuLBtiun tu (he house lo nj, 'I'hut tliey 
U oeglecled to punish ihem ; but ihis luuttar 
dsth not appear. And if the truth nere so, 
iImk matters inigbt be g^ven in evidence. 

9- Tbete is no precedent in the c;i<c, Kbich 
is a ireat preMimption of Ian. But to this I 
taiwtt. That ibere was nevsr any precedent 
■4' such a fact, therefore there cnnnut he n pre- 
cedent of sitch ajud)(tiieiiL And yet iu ilie 
time of <{ueen Elizaiieth, it was resolved by 
Ihntii, tmi many other justices, that offences 
dou in parliaiBCDt may be punished out of 
pattianrnt, by impii^oameni i>r otherwise. 
Aad the rase of 3 E. 3, 19, is taken for kooH 
h« byScatnf. and Finh. And 52 K. 3, and 
I. Mar. accord directly with it. But ii hatii 
bMB olijecied, that there was no plea mude In 
(iieJBiiidicuon. But it i« to be observed, that 
P<o«iltD, that was a leiimed man, was nne of 
(be derendants, and he pleaded not to the ju- 
HsdiciiuD, but phiadifd licence to drpurt. And 
llienid iufbnnniion depended dunuK all ihc 
K'-^n of qaeen Mary, during which time there 
■ere Ibw pnrtianienti, and thdy never quis- 
tioMd this matter.-^But it hath lieen Hirtlier 
objened, That the said case dilTers from uur 
cue, because (hat there the olfence was done 
Mt of (he bouse, and this was done within 
tl>e hoBie. But in the leid cite, if licence 
t» depart be pleaded, it oiii;ht to be tried in 

K lament, at well as these offences here. 
re lore, &c. . 

The Judges also the asme day spake briefly 
*"tliecase,and agreed with one voice. 'That 
'thecoart, aa this case is, shall have jarisdic- 
' ti""!, altiioi^h rtiat tbe*e offuKe* w*re com- 
' wtted in parliuneot, and that lb« iBpriMiivd 
* members ought to aaiwer.' 

»0(,. (II, 



Jonei b^an and said, That tboueh this ques- 
tion be now newly moved, yet it is an ancient 
.question with him ; for it had been in his 
thoughts these 18 years. For this inrormatioa', 
there are three questions tn it: 1. Whetliertfae 
matters inroriiied be true or false? And this 
ought to be detemiinrd by Jury or Demorrer. 
3. Whco the matters of the intbrmation are 
found or confessed tci be true, it ibe inibrma- 
tioo be good in substnnce? 3. Ahnit tbnt the 
oSences are truly chitrged, if this CuUrt liatli 
power CO punish theai7 And that ii the sole 
question of ibis duy. — And it seems to me, that 
of the.-e offences, oltliouKh conimitied in par* 
liameiit, thi) court shall hnve jurivlictinn to 
punish them. The plea of the Defendants liere 
to the jurisdiction being concluded with a de- 
murrer, is not i^eremptory unto them, although 
it be adjudged sgninst them; but tt the plea Ee 
pleaded to the jutisdiciiun,. which is fnund 
against ibe Defendiint by vcrdjct, this is pe- 
remptory. 

In the discussion of this point, I declined 

these quesduns; 1. If the mutter be voted in 

'" .._■.!. gnisbed, 'r — "" " ~ 



iilshed and eiamincd ii 






nolher coi 
p^rlh. 



ni 9. If 

luestioned 



that ended, if afterward it 
in another conrt^ 

I question not these matters; but t hold) 
that an offence committed criminally in parlia- 
ment, may be questii>D<d eltewhere, as m this 
court; aiid.thnl fur lluse Iteasons: 

1. ' Quia inicrest rtipublicut ut maleGcitt 
' iiuQ ninneiuit nnpuiilta .'' anil there ought to 
be a fresh puni?luiient of thcrn. Parliament! 
ure called at the king's pleasure, and the. king 
is not competliibic to cnll^ his parliament; and 
if betbre llie oei^t pdrliameiit, the party offend- 
ing, or the witnessts die, ttien there will be a 
friUure ofju^ticG. 

9. The pHTliainent is no constant court; 
every parli^iment mostly coosiits of scverd 
men, and, by consequence, they cannot take 
nuticeof mnttersdone iu tlie f.iregoing parlit^ 
mcnt; and there thny <lo not evainine'by oath, 
onlesi it be in Chancery, as it is used of late 

3. The tiarllLiment cannot send process to 
innke the ofTenders lo appear at the nc»t par- 
liament; and hi-ing at large, if tlicy bear m 
uoise of a parliament, tliey wiU^jam/acere, 
and so prevcut their punishinent. 

4. Put the case, that one of the Defendiuts 
he made a harem of parliament, now he can- 
not be puni^Iied in the bouse of commous, and 
w he shall be unpunished. 

It ihtth been objected, ' Tbat the parliament 
' is tlie superior court lo this, therefore this 
' court cannot ein'iiine their pruceedmg*.' 

To tliis I say, That this Cuurt of iJiC King's- 
Bench is a higher .court thnn the Justices of 
Oyer and Terauuer, or the Justices of Aisiie : 
but if an offence be done where the fling's- , 
Bench is, afier it'u removed, thia offence may 
be examined by the Justices of Oyer and Ter- 
miner, ot by the Jutticai of Assize. W« can- 



a07] ^A^E^RlAlS, 5 Ca. I. 1620.— Procadii'giagaina Sir J, Miot and otim, [SOS 



not queslion cli« judgincnli of parliament), but 
their particular odencet. 

7 Ohjecl. It ii n privilrf£e of parliament, 
iihereul'w* are nol crniipeE»i!t;]iidEev 
. To this I 6Hy, Tliat ' privilei;iuin est privita 
' ]e\ et pri*at. legem.' And tL^s nui>lil to be 
by firnnt or prescription in pai li anient : anil 
.tnen it nuithi to be pleaded for die manner, m 
is ill S3 II. 1, Dy. na it ia not bere pleaded. 
Also we aie Jud);e« ol'all acts of pariiuiiient : 
■1 i 11. T, ordinance made by the kin^ and 
'commons is nut %ood, and wc are juices 
wliat uliall be a seasiuii nf purliamerit, as it 
is in Plonden, in Partridge's Case. Ve are 
Judi>es of tlieir lives ami lands, therefore of 
tbcir liherties. And 6 Eliz. which was ciicd 
by Mr, Aitomev, it was the npiriion of Uybr, 
OatljD, Welsh, Broivn, nod Souihcot, jusiicea, 
That ofieitces committed in parliament tniiy be 
puniiihtd out uf parliament. And 3 Kd, 5, 19, 
It is |;oi>d law. And it la usual near tlie end 
of parliaments, lo »ec down some petty piiiiish- 
tncnt upon offenders in purlianieiit, tu pre- 
vent otiier courts. And ] hate seen a Itoil in 
this Court, in 6 H. 6, where Judgmeut was 
given in a Writ of Auiiuity in Ireland, and 
afterward the said judgcnMit wu< rnerscd in 
pirliavient in Ireland ; upon which juditinent. 
Writ uf Error was brought in tliis CuurC, and 



them tba; argue fur the Deftiidnnts, I 






I suhst 



t the 



which were objected before all the justi . . . 
SnillRnd, nnd barons of the Eiclieqi^er, at Ser- 
ieants-inn in Fleet-street, upon an Information 
in the Star Chamber for the same matter. At 
which time, after great deli he rat ion, it was re- 
solved by all of them, ' That no offence com- 
' mitted in parliament, that being ended, may 
' be pnnislied out of pnrliarieni.' And no 
court more apt for that purpose than this court 
in which we ore: and it cannot be puni^hi'd 
in a future pnrlinmenc, becante it cannul take 
notice of matters dune in a foregoing parlia- 

As to what was said, Tliat an inferior court 
cannot meddle with mailers done in a supprinr ; 
true it i.% that an inferior coun cannot meddle 
with judgments of a superior court; hat if par- 
ticular mombers of n superior court oil. nd, 
they are nfl-dmes punt'-hahle in an interior 
court, a*, if n judge shall commit a capital of- 
fence in this court he mav be arraigned ihi^reof 
at Newgate, 3 F.. 3, 10. and 1 .Mar. «liich 
have been cited, over-rule thift case. There- 
fore, &c. 

Justice Whillorlif. 1. I mr in this case, 
f Nihil dictum qnud nnn dictum prius.' 3 
TItBt all the Jud|:ea of KiifiliiRil linie resolved 
(his very point. 3. That now we are but upon 
the brink and skirts of ilic <-au»e : ("r it ia not 
now in question, if tlioac be titrrnces ur no ; 
or, if true or falte ; but only if ihia court have 



Rut thuogh it be not capital, yet it it crimi- 
nal, for it in towin:; of pedition to the destruc- 
tion of tlie common wealtli. The question now 
is not between us thatare Judges of this Court, 
and the parliument. or between the king and 
the parliament, but belnecnauaieprivaiemem- 
liers of tlie house of commons nnd the kinf; 
himself: lor here the kini; himself questiona 
them lor those oETvnces, at well he may. In 
every cuiniiiuiiweHlih tlieie is one super-emi- 
nent puui'r, which is not subject to be ques- 
tioned by any otlier, and that is the king inlliia 
commonwealth, n'ho, as Ilracton sailh, ' SolniB 
' Deum htibet ultorem.' Hut no other within 
tbe renin hath this priviltge. It is true, that 
that which is done in parliament by consent of 
all the house, shall not be questioned dte- 
where; but if any private members ' eiuunC 
■ pei'sotiaa judiceuj, et induunt malefHcienuum 
' persunas, et sunt seditiosi ;' is there suck 
sanctimony in the place, that t)iey mnj. not be 
questioned fur it elsewhere F The bisbop of 
Uoss, as the case inith been put, beinc ambaa- 
sadur here, pmclised matters aeainat the stale :' 
and it was resolved. That alltratt^li ■ Ipgalus 
' s't rex in aliciio solo.' yet uhen be goes out 
of the bonndi of his office, and comptuis with 
traitors in this kingdom, lliat he shall be pii- 
nishcit as an ollendef here. A minister fanth 
a great prii ilege when he is in the palpit ;. but 
yet, if in the pulpit he uiter speeches, wkick 
■re scandalous lo tlie state, he is punishable. 
So in this case, when a burgess of parliament 
becomes mutinon*, he shall rot liave tbe privi- 
lege of parliament. In iny opinion, the realm 
cannot consist witl)Out puriiamenis, but the 
behavio'ir of pnrliantenr^inen ouehi to bepar- 
]iament;iry. Mo outrageous speeches were ever 
used against a great minister of state iu pariia- 
ment wiiich have not been punished , If h juiige 
of this court utter scandalous speeches to tha 
state, he may be questioned tir H>em before 
commii'Siniiersof Oier and Terminer, becfto** 
this is no iiidicial art of (lie court. 

Out it hath heen objected, That we cannot 
examine nets done by a higher power. 

To (his I put this case : when a pebr of tb* 
realm is niraicned of Treason, we are not hi* 
jiidurs, but the High-Steward, and he shall be 
irieil by his pi-ers ; but if error be coiWmitietJ 
in this prorei'dine, iliat shall be reversed bj 
error in thin court ; fur tliat which we do la 
coram ipta Trf-t. 

It hath been objected. ■ That the Parlia-^ 
' inent-lu* dilFen from the law by which we 
'judge in this court in sundry cases.' And fbr 
the instance whieh hath been made, ' That hy 
' the statute, none ought in be ehosen hu[)!esa 
' of a town in which he doth not inhabit, but 
.' that tlie usage of parliament is couti'ai^;' Bitt 
if information be brought upon tbe .said statnte 
agaiust such a burgrsa, 1 think that the statuie 
is ■ gtiod warrant fw us to give judgment 



ted. Buttbis 



Grand Cape, aad other procnt usual in real 
aaions: but of bU capital and criniinnl causes, 
we Krc original I J cnmpc lent judges, and hj con- 
wqnence of this mailer. But 1 am not uf the 
opmioaofMr. Attorney -General, tliattlie word 
jrndilorii Mould have mnde this ireitsoD. And 
far the other maiten, tie agreed with thejudgcs. 
Tlietelbre b; th* court, the defendunti nere 
rtfW to plead farther; and Mr. Lenthal of 
Uncoki's-liHi was sHij^ocd ol' cnunsel fur them. 
But ioaamucli as the Defendants wnuld not 

put in aaj other Plea, the Inst day of the Term 
^fDt^inent was given agoiu^ them upon a nihU 

dicil ; which Judgmeut nas pruHuunced by 
/ones to this effect; 

" The matter ofthe TnfanDntian now, hy ilie 
txmtrauoa o( tlie DefenriantB, is admitted to be 
e ijiiult tht'i pteu to theJuriBdiction 

And wi hereby vi ill not draw the true Liberties 
of ParliameDt^men into questbn; to «tt, for 
■» which they do or speak io a iiar- 






Sui 



ns a conipiracy between the Defendaiils Io 
(laodertbe slate, and to ruise sedition and i\s- 
cotd betvreen the kins. ^'^ petn, and people ; 
■>d this was nnt a piitliamentary course. All 
the Judges of England, except one, hare re- 
•oticd tb(:stfttateot'4 H.'8, Io be a private act, 
■nd to extend to Strode onlr. Dut every 
swoiber of ihi pariiament shall hav« Ncb prt- 






309] STATE TRIALS, 5 Ciublcs ]. l(i'J9.~for aediiioia Speeches in J'nrliamait. [310 

And it hath hern ohjecEed, ' Tltat there is 
' no ftrcedeiit in this inatti-r.' 

But it.cre are aunilry Precedents, by which 
it appean, that the parliament hath ti-mniniilled 
Baiters to this court; as 3 It. 3, there being ii 
^iKstioa htiweee a great peer and a bibhop, it 
was iraasniitica to tliis court, being for in;itter 
of behaTiiiur; and although llie Judges of this 
court are but inferior men, yet the court Is 
higher, for it appears by 1 i Eli». Dy. Tliat 
tlte Earl Marshal of England is an olbcer uf 
tlii» ctnrt ; and ii is iilwajra admitted in parlin- 
meni, 'lliai the Privilege* of Parliament hold 
not in three cases, to wit, 1. In case iil Trea- 
son. 3. Ill ca-e of Felony. And 3. in suit 
fi>r (be Peace. And the labt is our very case. 
Tberelbre, &c. 

Crokt ar^^ued to the snme intent : he laid, 
TliattlKseoSeiicei ought to be iiunikhedin the 
couft, or no shere ; and all inann>r of uditncpM 
whicii are against the cruwn are exuminable in 
this court. It hatii been objetleil, ' I'hut by 
' this ineans.iuinc willadveniure l-iinake com- 
' plaints in parliament.' That is not so; for he 
may complain in a parliamentary course, but 
not fdlicly and unlawfiilly, ai here is prt tiniled : 
/or that Hbich is unlawfally, cannot be in a 
paHisnientary course. 

It hath been objected, ' That ihe pnrliament 
' is a bigber court than lliis.' And it is true : 
But every member is not a Court ; and iF he 
commit offence be is punishable liere. Our 
nniit i« • court of high Jurisdiclion, it cannot 
lake cognizance of real pleas; but if a real 
plea MHnes hy error in this council shall 



:Te mentioned ; but they hnve 
no priuiejjf to ipeak at ibeir pleasure. Tl* 
vaiiiaioeni is an liigli court, iherelbre it ought 
not Io be disorderly, but uught ti) give coud 
example to oilier courts. It a Jud^e ol our 
ciiuri should rail upon the state, or clergy, he 
is punishable fur it. A member of tlie parha- 
mcnt iiiny chaise any great uliicer ol' the ttate 
with any particular i^ei>ce ; but this was a 
mnlevnliiut nccusutiun in tho geuerahty of all 
the ndicers of state, therefore the matter con- 
tumed within ilie inlbrraHtino is a great offence, 
and punishable in this court. 

a. " For (he Punishmeai, nhhriiTgh the Of- 
fence be great, yet that .shall lie with a light 
hand, and shall be in thia maancr, 

1, " That every nf tlie Defendants shall b« 
imprisoned during ihe kiiM;'* pleasure; Sir John 
Klftot to be impri i>iiul in ihe '1 oner uf Liiii> 
d5n, an>l theoibur Dtlendanis in oiluTpriMUis. 

3. " TIkBt none (it them shall be deliterrd 
out nf prison until he give security in tliis court 
f<ir his ^ood behaviour, and hnve made subutis- 
sian and ackDowledgmeui of tiis oAeiice. 

3. " Sir 'John Elhot, inasmuch as we think 
him ihe greatest olfcmter, and the ringleader, 
sbull pay to the king a Fine of 9^000/. and Mr. 
lL>llis,aFineofl,000 marks; and Mr. Valen- 
tine, bccimse he is of less abiiitf than t'e rest;. 
shall pay a Fine of 5001." Ao'd U) fJl this, all 
tlie other Justices with one voice accorded. 

Aliern-nrds tlie Parliament which mei llie Sd 
of Noieuiher, 1C40, upon report made by Mr, 
Itccurder Glyn, of the stale ofthe seieral and 
respective Cases of Mr. llollis, Mr. Selden, 
aim the rest uf the imprisuiied Mtiubers of the 
parliament, in Tertio Cnroti, touching their et- 
traordiiiaiy bufferings, for Iheir cousinnt affec- 
tions to iJieLibettietof lie kingdom, expressed 
ID that parliament ; and apoii Arguments made 
ill the house therci ,ioii, did, upon the 6th of' 
July, 16*1, pats tb.sc ensuing Votes :- whicli, 
in respect ol' the reference they have to these 
last ineuiioned proceedings, vie hane lliouglu 
fit loiiistrt: vii. 

Joly 6, 1641. 

1. " Resolved upon the question. That (hi 
issuing out of the Warronis from the hirds and 
others of the priry-couiicil, coinpelling Mr. 
Hollis, and the rest of the meniben of tliut 
parliament, 3 Car. during the parllDment, lo 
appear beldr* them, is a btench of ihe privi- 
lege of parliainent by those privy counsel hirs. 

3. "rhatthe comroiiung of Mr. Hollis and 
the rest, by the lords and others ofthe priiy- 
coancd, during the pMrliamcnt, is a breuch of 
the Privilege of parliaiufnt by thiiae lords, and 
others. 

3. " Tlint tlie searching and lealing nf tho 
chamber, study, and papers of Mr. IIolHs, Mr. 
Selden, and .sir John Fltliut, being members uf 
this house, and during ihe parlinmeni, and issu- 
ing of WHrrants to that purpose, was a breach 
ol the privilege of parliament, by those that ek- 
ecu ted the same, * 

i. " Thai the exhibiting of ^i) Infomttion in 



SIl] STATE TRIALS, 5 Ca. I. mag.— Frotxcdingi e^aimt Sir J. Ellidlmdolhen, {Sit 



tlK-Coart of$Mr-Cbainber,af:aiD>t Mr. Hollis 
aiid tjte rest, fur matten done hj tliem iaptiT- 
luunent, bein; menibers of parlifmenl, niid the 
Mme so npiirarini; in the InrornialLOD, ii ■ 
breaah of the prltilegp of pBrlismeiit. 

5. " tW sir Rntiert Ueaili, and sir Hum- 
phrcvDaTCDport.sit HeiieaE^ Fiuch,Mr. Hud- 
Mtn, eod air Robert Berkley, that siibicribed 
ibeir naitiei to rhelnfunnatioii, are guilty tbere- 
bj n( the breacli of pnTilege of pai^^mmt, 

6. " Tbiit thrre was a delaji of justice to- 
wards Mr. Hollii, and Ihe rest that appeared 
upnn llie Habeni Corpus, in that ttiey Here not 
bailed in Easter aad Trinitj-icrm, 5 Ci<r, 

7. " That sir Nich. Hyde, then Chief Justice 
of tho KingVbeuch, is guilty of this deiny. 

8. "-ThAt tic Willium Jonei, being tlirn ooe 
oftheJtiwice* of tlie court of KingVbench, is 
guilt; of this delay. 

. 9. " That sir Janies Whltlocke, knt. then 
oneoftbejustices of the court of Kiog'^-beiicb, 
is not guilty of this delay*," 



• Mr. Wbitlocka in his Memuriais of the 
English Affairs, p. 38, 39, snyi, " In the house 
there fell out & Deb«te toudiinj; the Writs of 
Habeas Corpus, upon which Solden and the 
test of liis I el low- prisoners demanded to be 
bailed^ anil the Judges of tlie King's-beflch did 
not bail tliem, a* by law tliey ought ; but re- 
quired of ihemsuietics for tbeirgnod b«li»Tiaiir. 
This wa< so far nggravnted by some, tlist they 
moved, ' The prisuuers miijht hnve repnrHiiou 
' out' of the estates of those Judges nlm then' 
' tat in the King'i-bench uhen they nere re- 

* mnndeit to prison;' which Judges ihey named 
to lie Hyde, Jones, and my lather ; as for 
judge Croke, vrho was one of that rourl, ibey 
excused him, as differing in opinion frnrh the 
rest. — I betn;; n member of ihe house, and son 
to the Judgr, knew this ta be mistaken, as to 
tlie fact, and spake in tlie behalf of my father, 
to this cITect : ' That it was not unkuown to 

* divers wortliy members of the houst>, that 
'judge Whitlocke had been a fuilhful, able, and 
' stout assertor of the Kiehts and Librrtits of 
' the frce-bom subjects of tliit kinpdam; fur 

■ wliicb lie bad been many wnys a suEferer. And 
' particularly by n strait and close impriaonmeut, 
' lor what he said and did, as a member of this 
' honourable house in a former parliiunent : and 
' lie appeals to those noble geutlcmen, who can- 
' uot hot remember those passagrai and some 
' who were (ben tuSerecs with him. And for 
' his Opinion, and carriage in the Case of the 

* Habeas Corpus, it is alhrined' to have been 
' the tame with that of Judge Croke ; and 
' he appeals fur titis, to the bonaurable gentte- 

, ' mcD who were concerned in it ; and others, 

■ who were present tbeti in court.' Ilampden, 
and divers odieis, seconded this motion ; who 
•Ifirmed rerv much of (he matter of fact, and 
expressed tnemselves with great respect and 
}iouour [o the memory of the deceased Judge, 
who was thereupon reckoned by the house in 
the same degree witli Judge Crake, as to tbair 
eentute and procccdingi," 



Urifrn!W,Thatthe.furtber debate of tldsriinll 
be taken into consideration OQ to-Btorrow 
morning. 

July 8, 1641. 

10. " Resolred unoii the question, That sir 
George Croke, kni^t, ihcunoe of the Judge* 
of the KJi^'s-htuclifisnot guilty of ihiidday. 

11. "That the cootiiiusuce of Mr. Uolits, 
and ihe retl of the Members of Parliament, 3 
Car, in unson, by the tlirn Jut^esof the Kinfi's- 
bench, for not putting in surelies for tbcir good 
behaviour, was withiiuijust orlenal cause. 

12. " That tlie exhibiting of the iufurmatiuR 
agiiinst Mr. Hullis, sir John Elliot, and Mr. 
VaUnitne, io the King't-bench, bein^ Membeis 
of Parliameut, fur matters done in parhameD^ 
was a breach of tlie privilege of parliauicaL 

13. " That the ovet^culiug of the Plea, 
pleaded by Mr. llollis, sir Jubn Elliot, and hit. 
Valentine, upon theinfurmntion, to the jurisdic- 
tion of ilie court, was against the Itw tad pri- 
tilege of parliament. 

14. " That the judgment given upou a nikil 
dicit, against Mr, lIolTis, sir John Elliot, and 
Mr. Valentine, and fine thereupon impoud, 
and their several imprisonments thereupou. 



against the law and privily of parliai 
"ThiittheseieralproceedingtBgaiuitAIr. 



Heymaii, respectively, ought Co have 
I lor tb<-ir respictive damages asd 



Hollis, and the rest, hj commitung ll 
prosecuting ihem in (be Star-Chomber, and itt 
the King'B-Bench, is a Grievance. 

16. " That Mr. Hollis, Mr. Suoad, Mr. Va- 
lentine, and Mr. Lonu, and the heir* and ese- 
ciitonof sir John Elhot, sirMiles Hob>n,and 
sir Peter Hey 
reparatioB 

sulTerings, against the lords and others of the 
council, by whose warrants they were appre- 
liended and committed, and at-«iiist the coandl 
that put their hands to the iiiformatiun in the 
Star-Chamber, and against ibe Judges of iLe 
Kinc's-Beuch. 

17. " That Mr. Lawrence Whitaker, being a 
tneinber of the purliauient S Car. entering ioto 
Chechamber of sir John Elliot, being likewise a 
member of the parliament, searching of his 
trunks and papen, and sealing of uiem, is 
Riiilty of the breach of the priviiege 6f pariia- 
Tnent, this being done before the ^ssolutiou df 
parliament. 

18. " That Mr. Lawrence Whitaker- bnug 
guilty of the breach of the priviSeses as afore- 
said, shall be sent forthwith to the Tower, there 
10 ramaiu a prisoner during the pleasure of tlw 

Mr. Whitaker wiu called dawn, snd knee- 
ing at the bar, Mr. Speaker pronounced this 
Sentence against him accordingly. 

Mr. Whitaker being at the bar, did iwt 
deny, hut that he did search and sni up the 
cbauiber, and trunk, and study of sir John El- 
liot, between the 3d and lOtb uf March, during 
which time the parliament wBsadjourned: knt 
endeavoured to eitenuate it, by the confusmn 
of the times, at that time ; the length of ike 
time since tliat crime was ooHuaiitcd, betag 



$IA] CTATE TRIAI^ 5 CflAtLU I. 1039.— /or«rrfifMw4»MhaM 



[914 



(biiteen jean; tlic command tliat lay apoD 
Imi, buiii coniiDuded bj the lung •nd S5 
jiritj-coinucUon. 

AlierwBrds Mr. Hccorder Gljn niiile a iar- 
tbtr Uepori la tb« Uoun of Commnns, to. 

Tbc kVuraat, wbicb iwued and <(as sub- 
Kribedbvlwalveptivj-couiiKilort) [o luuimun 
UM of tbe cMmben of the liauie of coffimont, 
■ tba Pariianwat of terlh CartJi, to ap|ieur 
lebrt ibem'duiint: Uie patliaiDent, Tiz. Mr. 
Wsu Stroud, Mr. BenJ. Valsotine, Mr. Hollii, 
■r Jolui EllMH, Ut. aelden, Mr Miles Uofaurt^ 
lir Peter HejQUlii, Ur. Walter Long, sod Mr. 
Wn. OintuD, hearing date tertio MartU, gaur- 
k Cmcii i aiid ibe aamea of the twplre [irin- 
couueUon lUat sigaed ihia warrant, were read : 
the patiiiunt'iit btioff adjoomed the 3d of 
Uaidt, to Ute lOtli of Mvch, and then du- 
Klred. 

Tb« Wanaati nnder the hanJi of iiiiie«n 
prtT-counsellan, for committing of Mr. Dea- 
■il UollU, ur John ElUot, Mr. Jobn Scldeii, 
Mr. B«nj. Valentine, and Mr. Wm. Ciinton, 
ckoe prisoners to ibe Tower, bearing date, 
fwrie Uartii, jtartt Caroli, dnrioic iLe par- 
tiiMM; were read; and tbe aames uf the 



pttTj-connMllors, directed to Wm. Boawel, e*q. 
10 repair to tlie lodging of Datiii] Hollit, esq. 
and to Sbnoa Digbj, esq. to repair in the lodg- 
ift of Hr. John iicUeo, anil to liawrence 
WUt^^r, esq. to repair to the lodgings of sir 
John Eiliot, requiring tbem to i^ up tbe 
tnuki, Undies, and cabioets, or aoi other thing 



wtremd, and likewise the oamefl of the privy^ 
coomeUort tbat lubicribed tbestid Warrant*. 
A Wanant wader tlie bauds of 13 pritir-couii- 
MUon, for the commitmeot of Mr. Wm. SCroad 
d«se piisuier to tbe King'a-Bencb, bearing 
dale 3d April, 1638, was read, and tho usmes 
oFdKpriTj-counsellantbatBabtcrihed it: Tbe 
tiksVairant was for tbe cominiunent of Mr. 
Wslta L«iig, close pruoner to tbe Marsbabea. 
Rtsoticd, &c. 1. "Tliat Mr. HoUia shall 
Utc tbe socn at SfiOOl. for hia damages, losses, 
uiprtionmcnts, and sufEehnga, sustained and 
Budsi^ne bf btm, for his service done to the 
' I tb« iMrbameot of tertio Cu- 



t. " Tbat Mr. John Selden shall ba*e tbe 
mm of 5,0OOJ. for bis damages, loitea^ impri- 
HHuaenlt, and lufTeriags, sustained aod nnder- 
|ooc hj him, fur bis service done to tbe con 
■Kinwealth in the parliament of tertio CoroJi. 

S. " Tbat tbe sum of SfiOOl. be assigned for 
■lie damngca, lostes, iaumsooinenu, and suffer- 
isgs, BustaiQed-aud undeigone by sir John £1- 
iiot, for his service done to tbe cnmmon wealth 
in tbe parliament of terfio Coro^, to be dis- 
PMcd ofintucb mKanerastbis house shall ap> 

pMDt 

*. "That the sum of S,0O0l. part of 4,000/. 
psid into tin kta court uf Wards and Livcfiei, 



by tbe heirs of sir John Elliot, bjr roasoti oftia 
roarrioge with lir. Daniel Norton's daughter, 
shall be repaid to Mr. Elliot, out of iLe arMara 
of DHinie* pajftUe iniu tbe late court of Ward* 
and Livenes, before the taking awa; of ilw 

(JHered, " That it be refemed to die com- 
niitiee »bo brought in lliis iiopari, to esaiuine 
ihe decreeimade in tlie laie ci>Hrt uf Ward* 
nnd Uverie«, couceruing ihe uiariiHge o( sir ■ 
Jobii. Klilot's heir with srr Daniel Norion't 
dau^bttr ; and what monies nere paid by rea- 
son ul tjie Bfiid Decrte, and by wtb.m ; and to 
report their oiiinion ihi reupon to ihe hnuse. 
Also, Tliac it be referred Ul the committee, to 
examine after what manner sir John i-Uiot 
to his death, bis utage in the Tower, and 
!* the rooms and placet A'liere be ens im- 
prisoned, and VI here he died, and tu report tha 
same to the hnuse. 

Re'olved, &c. 5. " Tbat the sum of 5,0001. 

shall be puid unto ibc of sir Peter 

Heyman, for tbe damages, losses, sufferings, 
and im prison menls, snsiained and ui)diig<m» 
by air Peter, for his service done to the com- 
DioQwealth in ihe parliament of lertui C«roli. 

i. " That Mr. Waller Long shall have tbe 
sum of j,000^. paid unto liim, lor tbe damages, 
losses, siiiTeriiigi. and imprisonment, httttaioed 
and undergone by him, for liis service done to 
the commonwealth in the g^rliament terlio Co* 

7."That the nin of 5,0001 shall be assifpied 
for tbe damsges, losses, suficfiags, and imprison- 
ment, sustained and aodergooe by Mr. Stiaud 
(late a member of this bonae) deceased, for 
lervice done by him to the Comnoawealtb in 
ibe parliament of ttrlio Cmroii. 

8. " I'hat Mr. Benj. Valentine sfaall have Uie 
sum of 5,000/. paid unto him, fur the damngCL 
lo!>s['S, sufferings, and imprlsoomeots, M)stainad 
aod undergone bjr I'im, Ibr his service to the 
Commouwealih ia the parliament of tertie 
Canili. 

•• Tbat the snm of SOOi. shall be heaioved 
and dtsposedof, for the erecting aMoutunent to 
sir Miles tiohait, a member ol Uio pnrbament - 
of ttrlio CvoU, in memory of his snllennga for 
his service lo tbe Commonwealth in tbe parli^ 
ment of tertio Voroii," 

Ordered, Tliat it be recommitted to the Com- 
■nittee, who brought in thin n pen, |o consider 
bow tbe several sums of money this day ordered 
to be paid for damages to the several members 
before named, fur their sufferings in the service 
of the Commonwealth, may.be raised. 

Id the reign of king Charles 9, this ASair 
was taken intu consideration, and the bouae of 
cnnunons came to several RtMoluiiona; vis. 
Die Mariii, 19 N<jv. 166r. 

Upon a Heport made by Mr. Vaughan Irom. 
the committee cuncernitig Freedom of Speech 
io parliament. 

Resolved, fitc That tbe hotise da agree with 
tbe committee. That tiM act of parliament in 
4 Hen. 8, cotnmoaly iutitled. An Act oi 



315] STATE TRIAI^, j Ch. I. 1929— Pracudmgt agninU Sir J. ElUot and allien, [316 

tog Richard Strode, is b general l>w, exunding 
to ind«iluiily kII and every tlie memlten of botti 
hiiu^es of parlianent, in all parJiamenu, for 
aod touching any bilb, speakiog, reaaotiiug, ori 
declaring of any matter or mattera, io and con- 
cerning the parJimuenc to be cooununed and 
treated of, and is a dcckmtor; lun of the an- 
cient and uei;es9Bry rights and privileges of 
parliameat. 

Die SabbnCi, SS Nov. 1867. 

ReaoUed, &c. That [he Judgment giTen 5 
Car. against sir John Elliut, Drnzil HnUis, and 
Senj, Valentine, in the KingVBench, is an il- 
legal judgment, and against the freedom and 
privilege of parliament. 

Die Sabbali, 7 Dec. 1667. 

Resolved, &c. That ihe concurrence of ;he 
lords be desired to the Votes of this liouse con- 
cerning Freediim of Speech in purlinnient i and 
that a Conference be on Monday neit desired 
to be bad with the lordt, at which time tbe 
Votes may be delivered, and reasons for tlieni 



Die Juvis, U Dec 1667. 

A raessage from the lords by sir VVilli.ini 
Child and sir Tliouiai Estcourt. < Mr. Speak- 
er; 'llie lords havt comnianded us to actjuaint 
VDU, ttiat tbey agree Hith tliii house in the 
Votes delivered ihem nt the last Conferenc 
conceiiiing Freedom of Speech in parliament- 
Die Mercuni, 11 Dec. 1667. 

Next the Lord Chamberinin and the lord 
Ashley reported the effect of the Cnnference 
with The hOuse of commons yesierday, which 
WIS managed fay Mr. VBUglutn,.trlio said he was 
comminded liy the house of comioons tc 
quaint their lordihips with some resolvi 
their house concerning the Freedom of Speech 
in Parliament, and to desire their lordships 

In order to wliich, he was to acquaint tli 
lordships witli the Reasons that induced the 
house of commons to pass those resolves. lie 
Skid the house of coininons was accidentally in- 
Ibnned of ceKain Books published nnder the 
name of sir George Croke's Repons, in one 
of which there was a Case published, which 
did very much concern this great Privilege of 
Parliameut : and which passing from hand to 
hand aiDongst the men of^ the long robe, aight 
come in tiiye Co be a received opinion as good 
law. 

Tbe House of Commons ton side ring tliecon- 
■equcnce, did take care that this Case might be 
enquired into, and caused tbe Boole to be pro- 
duced and read in their house, and be tltought 
it the next and clearest way to infhrtn their 
lordships, is to read the Case itself, which is 
Quinla Caroli primi Michaelmas term, which 
Ctne was read u fbllowech i 

" Tilt King ». sir John Elliot, Deniil HoUis, 

and Benjamin Valentine. 

" An Information wa* eiliibited against tbe(p 

by tbe Attorney-General, reciting, chat a par- 

tianeot^a* stuaaioned to he held at W«fC- 



electcd and returned kn^lit for the county of 
Cornwall, and the other two burgesses of par- 
liament for utiier places: and sir John Fmch 
chosen Speaker. That sir John Elliot, ' m»- 
< cliioans et intendeos omnibus viis el rnodis 
' seminsre et excitire* d scord, evil will, mur- 
murings, and seditions, as well ' versus r^en», 
' mngiiates, proJatos, procerea et jusciciiu'ius,et 
* reliquos subjeclos regis, et totauter dcprivare 
' et sulivertere regimen et gubernatiunem regni 
' Angliie, tarn in doiniuo rege quoin in coa^i- 
' eriis cc ministsis suis cujuscunque generis, et 
' introducere tumultum et coDfusinnem' in all 
estates and parts, ' et ad intentionem,' ihiit ail 
the king's subjects should withdraw their affec- 
tions from tlie king, ibe 33d of Feb. anuo 4 
Car. in the parlianieiit, and bearing of ihe 
commons, ' falso, molitjose, etseditiosc,' used 
these words, 'The king's privy council, bis' 
'judges, snd his counsel learned, have con- 
' spired logeclier (o trample under tl>eir faet tlic 
' Librriies of tlie Subjccu of this realm, and 
' the liberties of this house.' 

" And afterwanls, upon CheSnd of March, 
anno 4, aforesaid, tlie king appointed the par- 
liament to be adjourned until the lOth of March 
next following, aud so eignihed bis pleasure to 
the bouse of commons ; and tliat tbe three De- ' 
fendants tbe said Sd day of March, 4 ('ar. ma- 
lUiote agreed, and amongsC ihemselres conspir- 
ed to disturb and distract the coinmoui, that 
tbey should not adjourn themselves according 
to Uie king's pi easuie before signified ; and Chit 
the said sir John ElUot, according to ibe agree- 
ment and conspiracy aforveaid, had maliciously 
' in proposilum et intentionem priedictam' in 
the huuse of commons aforesaid, spoketi- these, 
lidsa, pernicious, and sediiious words pftee^ 
dent, &c. And that tbe said Deoiil Hollis, ac- 
cording to the Agreement and Conspiracy 
aforesaid, bctweeu him and the other defen- 
dants, then and there ' iiilso, maliciose, et srdi- 
' tiose uttered hsec fHlsa, maliiiosn etscandalosA 
' verba prxt^enba, &c.' And that the laid 
Deuzit Ilullis,3nd Benjamin Valentine,' secun- 
' dum agreameQCnm et conspirationem prssdict. 
' &e, nd intentionem el propositum prtedict.' 
uttered the said^words upon the said fid day of 
March, after the signifying the king's pleCstuv 
to idjourn; and the said sir John Finch, lb* 
Speaker, endeavouring to get out of the ChaJr^ . 
according Co the king's command, they * vi et 
' unnis manu forii et illicito' aasaulted, evil io- 
treated, and forcibly detained him in the Chair; 
and ailerwards bqing out of the Chair, tliey at- 
SBolled bim in tbe bouse, and evil entreated 
him, ' et violenter manu forii et illicito' drew 
him to theChair,and thrust himiuloit. Where- 
upon there was greet tumult and commotion in 
the bouse, to tbe great terror of the Commous 
there assembled, against their allesiance, in 
maiiimim conUmptum, *ai to tbe diweiison of 
the king, bis crown and dignity, for which, &o. 
To this Information tbe Defendanu appetuine;, 
pleaded to the jurisdiction of llu* court, that 



817] STATE TRIALS, SChabibsI. )62(f.^foriedUious ^echai/t Parlummt. [SIS 

the conn ought not to bave et^oance thereof, 

becmow it is for offences done in partianient, 

■od ought (o be tbere ciamined and puniiihnl, 

and not elsewb««. It wai tliercLtpaii derDurred-, 

Had aTter Argument Bdjudced, (hat ihey ougbc 

to uisneT; for ihe charge » for conspirary,se- 

dkiODS acts aiid practices, [a stop ihe adj( 

tnent of the psrliatneiit, vrbich maj be 

mined out of parliiiment, being seditioVs aud 

■nlafrfu] acti ; nnd this court naj take eagni- 

ance nad punish them : Afterwards divers 

niles being (citeii against ibem, v>z. Sic }aha 

Elliot, that he >he>ald be commiiied to tlie 

Toaer, and should piij 9,D0M. fine, and upon 

bis enlargement should Had sureties for hi) goad 

behaTiour; and against Holhs, that be ilioukl 

psj 1,000 marks, and should be imprisoned, 

■lid find sureties, Sic, and against .Valentine, 

that be shnuld paj SOOJ. fine, be imprisoned. 



dfind'.! 

Then Mr. Vat ^ ian laid much emphtuisupon 
ibe words ' machinons el intendens, &C.' and 
then neiic on, That the house of com^omhad 
not niil; read Ihe Case as it was in the Book, 
but did look into the Hecord, where, in the In- 
fDrmBtinn itscir, they found some cniisiderable 
-diSermcea from the -print ; as that the crime 
alled^ed consisting partly of Words spoken in 
the bouse, partlj of crimmnl actions pretended 
la be committed ; the Gentlemen aceused 
pleaded teverally, namelv, spedallf to the 
words, and a several plea apart to the criminal 
■ctions; But the court denit so cmftilj, thai 
the; over-ruled the whole plea, mingled toge- 
ther, and took it in general, so thiit perhaps 
whataoever was criminal in the nctions might 
serve for ajuitificution of their rule, and nirght 
saake it seem in time to hecoiue a- Precedent, 
and a ruled case against the Liheitj of Speech 
in Parlinment, which thej diirtt not singly and 
bare-fiK-ed have done. 

The Uoom; ofCuintnons did take care to en- 
ipiire what ancient Ibits did fortitt this the 
Vcatcti Privilege of both bouses; nnd they 
piund in the 4 lien. 8. an Act concerning one 
Richard Strode, who was a member of pariia- 
mmt, and was lined at the Stannary Courts, in 
tbe West, for comlescendmg and agreein!: with 
other members of the honsc to pass eerinin acts 
(o the prejudice of Ihe Stannaries; this act 
' ' anally for him, but did reach 



'And over tliat, it be enacted by the same au- 
' thoiity, that all &uits, ■ccnsemenbi, conrlemn- 

* at ions, eiecution.s, fines, amerceinento, pu- 
' oishments, corrections, grievances, charges 
' aad ioipositlon*, put or Imil, or hereafter to be 
' put or had unto, or upon the said Kichard, 
' and 10 every other, person or persons afiire- 
' spedGed, that now be of this present pnrliif- 
' meal, or that of any parlinment hereafter 
' shall be, for any bill, speaking, reasoning, or 
'declaring of any matter or matters concem- 
' iug tbe parliament to be commenced and 
' trntcd of, bentteHy voiti, nnd of none effect. 

* And DTer thfu, be it enacted by tli« said su- 



' tbority, that if the aaid Kichard Strode, or any 
' of the said other peisvn or persons hereafter 
' be vexed, iroobled, or otherwise charged for 
' any causes, as is aforesaid, that (hen he or 
' they, and every of them So vexed or troubled 
' of, or fur the same, to have action upon tba 
■ case against every such peiwn or persoris so ' 
' vexing or troubling any, contrary to this iirdi- 
' nance and provision ; in the which action the 
' party grieved shall recover treble damages and 
' costs, and that no protection, essoyne, nor 
' wager oflaw in the aaid action io any wise be 
' admittrd nor received.' 

He said, it is very possiblp the Plea ofthosa 
worthy persons, Deniil Hollis, sir John Elliot, 
and the rest, was not sufficient to the jurisdic- 
tion of the court, if you lake in tlieir critut- 
□al actions ultogel her ; but, as to the words 
spoken in parliamrnt, tbe court could have no 
jurisdiction while this act of 4 Hen. e. ii in 
force, which axtends to all members that then 
-were ^or ever should be,) as well as Strode; 
and was a public general litw, though made, 
updn a private and a parliuular occasion. 

He recommended to their lordibipi the con- 
sidentiun of the time when these words in tba 
of sir George Croke'o Heports were spoken, 
h was the 9nd uf March, 4 Caroli primi, 
being in that parliament which began m ihe 
irecedent March, S Car. at wfaicli lime the 
ludgnient given in ihe KingV Bench about the 
Habeas Corpus was Dewly revenied, which 
concerned the freedom of our persons, tbe 
liberty of speech invaded in [his case; 'and not 
long after the same Judges (witli some nthetsj 
Joined with iliem in the Cases of ^hip-money, 
--Taded the propriety of ourgnodsand estates; 
that their lordships lind every pBrt.pf these 
words fur which tliose wonhy persons were ac- 
cused, j uglified. 

If any man should speak against any of the 
great officers, as the Chancellor or Tieasnrer, or 
any of the rest reciM'd in those acts, as by ac- 
cusing them of cnrruption, ill counsel, or the 
like, be mi^bt possibly justify himself by proving 
. hut m this esse it was impossible to do it, 
because those judi-iDenis hart preceded and con- 
eluded him, for he Cuuld make none, but by al- 
ledging their onn judgments nhicb they tbem- 
salvrs hod resolve.!, and would not therefore al- 
low to be crimes, which they had made for tows. 

He did inform iheit lordships, that-the Bill in 
le Rolls hath another liile than that he did 

ention ; this b^ng that, that ti.e clerks knew 

by, rather ihan the proper title. 

I'he w.irds in the Case arc charged ea in/fii- 
(jotie, nhich ought not to be; for it is Hear, 
undoubted law, that whatever is in itself 
lawful, cannot hnie an unlawful intent annexed 
Things nnlawfjl may be made a higher 
; by the illness of the intent ; for instance, 
taking away my iiorse is a trespass only, but in- 
tending to steal hitn makes it felony; borrow- 
ing my hotse, though intending to steal bim, 
is not felony, because borrowing is lawful ; 
and there were no use oF freedom of speech 
otherwise, for a depraved intention may b* 



- 819] STATS TRIALS, 5 Ch. 1 

aDnexed to any iha mou jaitUiabie action. 
If a man eat no fleib, be may be accined 
fur ibe deprived intention of bnnginji ip tbe 
PythMtnretn religioa, and subvettinit the Chris- 
tian :.lf a ina<i dnuk wutpr, he lua; be acciued 
of tbe depraved inleutioii of aubverting tbe kiuR's 
goveniraent, by destroying hi« revenge botli of 

Na man c^D make n doubt, but whataoererls 
once.ciiBcted is lawful ; but nnthiog can come 
' itilo an act of parliumeat, but il route be iir»t 
oflered or (iropounded by loaiebody, to Uiat if 
Uie act CHO wruns nobody, no more can the Tint 
propouudii^ ; the memben oiust be as free ai 
the housei. An act of parbmaeat cannot dis- 
turb tlie state, tberelnretha debate that tends to 
it cannot, fur it inuit be pr<tpounded and de- 
bated before it can be enacted. 

In tbe rei|;n ijf Henry 8, when there nere ar 
many persons Ukeii by act of parliament out a 
tbe \ordi house, as the Abbots and Priore, bd( 
all the religious houses and lands taken away 
it bad been a strange iDfonaatiCtD against any 
meniber. of parlinmeiit then, for propounding 
•0 ereat bo allemcion in chui^i aiid stale. 

Besides, religion itself beifao the^i to be alter- 
ed, and was pertccted in (lie beginninf; of qu 
"^worii tbe 6lb'« reign, and relumed agaJi 
Fopery in tbe brginniri); of queen Mary's ; and 
the Protestant religion restored again in tbe be- 
ginning of queen Siiiabelb's. 

Should a iDember of piirlioinent, in any of 
these times, have been justly informed against 
m tbe Kinj^'s-Beneh for prnpoundingnr debating 
■ny of these alterations; so that their lordships 
pe[cei*etbefea»oiii and inducementa the house 
of conmions had to fiti tliese voles now pre- 
sented tf their brdships t 

Afteritarda these Vol«s were read, viz. 

Resolved, fitc. " I. Tliat the act of parlja- 
nicnt 4 IIfd. B, comnionly inlitled, An Act 
concerning KicbanI Strode, ia a general law, 
eitending to indeoinify ail and every i|ie mem- 
bers of both bouses of piirlionieat, in all parlia- 
meots, for and louching any bills, speaking, rea- 
• aoning, or decturinit of anv matter or mailers in 
tod concerning tbe parlrnmeiit, to be com- 
muned and treated nf ; and is a declaratory 
law of tiis antient and ueces&ary riglits and pri- 
vileges nf parliameut. 9. Tbat the Judsment 
S'ven 5 Car. ngainaC sir Jubn Elliot, Denzil 
oilis, and Benjarain Viflentine, esquires, in 
tbe Kiog's-btuch, was an illegal Judgment, and 
. B^iinstlhe freedom and privilegeuf parliament." 

To both which Votes the lords agree wiih 
dieJiouse of commons. 

Upon consideration lind this day of a Judg- 
ment giien in the court of KingVBeDch in Mi' 
chaelmas term, in the 5 Charles 1, uraiinsl sir 
John Elliot, lint. Deoxil Holtis, and Benjamin 
VtJentine, esquires, which Judgment is found 
to be erroneous: It is ordered by the lords spi- 
ritoal aud temporal in parbament assembled. 
That the said Deiizil Hollii, esq. (now lord Uot- 
Us, baron of Ifeild) be desired to cause the Roll 
«f,tht Court of King'i-Bench, ivherein the said 



1629. — Pncadmgta^uiatSirJ.ElBolandoihen, [320 

Judgment is recorded, to-be brought before the 
lords in parliament by a Writ of Error, lo tbe 
end that suoti further Jui^ment may he giren 
upoD the said case, as this bouse slmll End meet. 
Attorn. Gen. et al. v. HoUis ct al. — Mich, 10 

Car. aecundi regis. Rot. 73. 
An Information in the KiiigVbeach againtt 
Sir John Elliot. 
Memorandum, quod Rob. Heath mil. sttom. 
duin. i^Eis nunc general, qui pro eodem doai. 
ngeiii liBc patte se^uitur in propr, persons 
sua veil, hie m cur. dicti dom, regis coram i^ 
apud Westm. die Mereur. proi. post cnstin. 
Aniinar. iita eodem term, et pro eodem damioo 
rcge protulit hie in cur. dicti dotnin. repi 
coram ipso rege tunc ibidem quondam inrnmnt- 
tionem versus Johan. ElUot nuperde IJindoa 
mil. Benjamin Valentine nuper de London ar, 
ct Denul HoUis nuper de London ar. que 
sequitur in hec verba scilicet Miild, as. Memo- 
randum 'quod Robertus lleaUimil. attoiu. dum. 
regis nunc general, qui pro endem doin. rege 
in hac pnrte sequitur in prn.priii, persona sua 
ven. bic in cur. dicti doin. legis stwam ipu 
rege apad Westm. die Mercur. prul, post eras- 
tin, Aniinar. isto eodem rermino, Et pro eo- 
dem dom. rege d»t cur. bic intelligi et initir- 
mOri. Quod cum dictus dnm. rex pro divenis 
orduis et urgentibus negotiis Ipsum t^em at 
sLumm et pension, rego. An^l, et ecd«sie 
Anglican, concerneu. quoddam parliament, 
suum apud civit. tuam Westm. pred. teaeii 
ordinant. Cumque superinde qooddam psriia- 
mentum suuni dehilo modo inchoat. ct lent, 
fuit apud Westm. pred, deciino septimu die 
Mnrtii anno nf,ni dicti doin, regis 3 et ibideni 
per divcrsas prorogation es contiuuat. usque 10 
diem Martii anno re^ni dicti dom. regb 4. quo 

Saidem 10 die Maitiiidem parlioiueut. disaolul. 
lit. Cumque antt^a pred, 17 diem Martii anna 
3 suprad. scilicet 16 die ^usdem mentis Mar. 
anno 3 suprad. Juhanoes Elliot nuper de Lon- 
don mil. dfibito modo elect, et return, fuit oa. 
mil. pro cum. Cornuh, in eodem parliament, 
dfseruitur. Cumqae ctiam Benjamin Valen- 
tine nuper de London iir. eodem Id dieJMaitli 
anno 3 suprad. debito modo elect, ct reromai. 
fuit un hoigens,. pro buigo de St. Gcnnanin 
pied. com. Cornuh, in eodem parliaiucnt. do- 
servitur. Cumque eliam Denzil IloUit iiapw 
de London ar eodem 16. die Martii snne 
3. suprad. debito' modo elect, et relonat 
fuit un. burgers, pro hurgo de Diircliester id 
com. Dors, in eodem parliament. deservitor. 
Cumque eliam Johannes Finch mil. eoilsm 16 
die I^rtii anno 3 suprad. debito modo elect 
et reioniBt. fuit un. civium pro civirni. Caatuar. ■ 
ineodem parliament. deservilur. Cumque^rHl- 
16 die Martii anno 3 supr.id. prelau J. I'i'U^ 
Apud Westm. pred. debito raodii electus « 
constitut. fuit Prolocutor, per comraun. i" 
eodem parliament. Et sic Prolocutor jiro 
commuii. continuavit usque dissoLutioa. eju»- 
dem parliament. Quod prefat. J. E. machinam 
*t intfendens omnibus viis et modi* quiho" 
potrrit discord, makvolenc, muraiurwiMW* ** 



SI] CTATE TRIALS, SCiiallssI. IG-iS.^^ ladiiiout Sjxecha in FarOmmt. [3»S 

MlttioDei (am iot pled. dam. regen et iiiai;iiB(. 
pcaluot, procerct et justic^ sues hajus rrgni 
■{0*10 irit. pred. mognat. pneUt. ptocerea et 
judciir. dicti dam. regis et reliqum eulidii. 
not Kminare tC pxciture ei regimen el gubei^ 
HtJaii, buju* regni Angl. tarn in pred. dom. 
rffequam io coneiliar. et minitU'is auis cujjs- 
ouMiut generis lotolit. deprivere et eoervare et 
umult. et (-anAuion. in omnibus' statibus et 
pinibu* hujui regiii Angl. introducere ec >d 
inteolion. quod reti et ligei aubdit. dicti di>- 
oM repi cordialem lnuin Htnorem nb ipso 
npe Telnberent id et duran. parliament, pred. 
nliccc 93 die Febr. aniv> 4 suprad. apud 
Weatm. pred. in domo comniun. parlimunt. 
ibidtm et sedente eiuJem domo miliiib. civib. 
(tboi^ns. adtoDo et ibidtm sssemblRt. et in 
nr. precenlia et audiOj falso et mnlitinse et 
Ndicioae bee Msa ficts maJitiosR et scandatoiH 
tcrbt ABglicana alta voce diiit ci proBalarit, 
•idelicM, ' Tbs King'* Priv-j Council, all bis 
'judges mid liia counsel learned, hava con- 
'tpircd together to trample under their feet 
' the liberty of the Bgbjecbi oftlus renlm, and 
'the prinleges of this house.' (Privileg. pred. 
Amudb commun. parliament, innuendo) cuin- 
^ poteitas suminonend. pBrliameiit. ejusdein- 
^ conlinuand, itdjoraand, proroeand. et dis- 
•olteiid. dom. regi ipectnt et de jure perlinec 
ad libitaea M benaplaciium suum. cinuque 
Actm dom. rei pro divera. urgent, causia 
jnuiB ad boc ipecinlit. moven. aecunda die 
MartiianDo 4 loprad. piir]i:<nicDt. pred. adjor- 
Uri oidinavit eodem secundo die Mutii usque 
ID diem ejusdem menui Mertii adcucc prox. 
KtMT. Et diet us dom. rei pred. secundo riie 
Uartii anno 4 siij>n>d. apud Wfstm. pre^, 
oiudavit prefiu. Juhann. Finch adiuiic Frolo- 
Guttm preJ. quod ipse eodem secundo dieSiartii 
nulitibus civibus ec burgens. in domo commun. 
padnoteat. adimnc et ibidem ossemblnt. bene- 
pladtDm dicti dom. regis significaret et nolum 
octret qaiHl immediate puit signification, ijl. 
w bet. pred. domus commuu. per ipsos mil. 
<i"a et burgens. adjornaretur usque iO diem 
Htrtii adtunc proi. futur. Et saperinde prefat. 
Jobanuet Fincli eodem lecundo die Martii 
ipnd Westm. pred, militib. civib. et burgens. 
in dicta domo commun. purliamenl. adtunc et 
3>idem assemblat. seden. eadem domo pablice 
■ignificaTit et Datum fecit pred. beBeplacitom 
>Kti dam. regis quod prett. domus immediate 
ppM ngnification. ill. fjci. usque nd pred. 10 
dtao Martii pef aeipsos ndjoniaretur et quod 
pred. Johannes Elliot B. ValcDtine et Denzil 
mfii tempore signification, pred. per pred. 
I'lokicDtor. in forma pred. foct. presentes liier, 
■>> domo commun. pred. et adtunc et ibidem 
■odirmint eandem siKnilicBtion. et ill. bene 
inwllner. pred. umen J. E. B. V, ecD.II. 
eodem secundo die Mnrtii anno quarto auprad. 
•piid West. pred. malitiose Bgre*Ter. et inter 
tM CDDspimver. ad disinrband, miliCei elves et 
|"rpni, de pred. llomo comnniii. parliament, 
"> eadem domo apud Westm. pred. adlnnc et 
i^cn aasemblat. dc illi secundum beneplad~ 
■oM dicti dom. regis eii ut prelertiir significat. 
VdU 111. 



seipws adjornaientur, Et pred. J. £. secundum 
Bgreamenc. et conspiration, pred. ad maliliosa 
proposica et intention, pr^. postea scilicet 
podcm ^cundo die IV^artii anno 4 suprad. apud 
Weilm. pred. in eadem dom. cainniun. parlin- 
i.-ient. in preseniia et audiiu pred. milit. citiniri 
et burgens. Etdlunc et ibidem nssemblat, altd 
TOcefalio malitiose etseditioiedixiteiprupnlavit 
hec Falsa ficta scnndalosa tnnliiiosn et smlltiosi 
Anglicanarerbaseqiien. 'Thenii^erahlecondi- 
' tion we are in, both in matters of rtligioii and 
' policj', makes me look with a it^rier eje both 
' tu tbe person of the king and the tuljrct: 
' jou knon hon' Arniiniamsm doih uadermine 
' us, and hon poperj comes upon u* so opeu- 
' faced Be it gives a tetror to tbe law ; tlint 
' pa'rticularlj concerning the plantnCiou of 
' Jesuits amongst u», and other things incident 
' thereio, do manifest Ijr sbew.it. And not onlj 
' t)icsG.ioen irho are actors themselves, I mean 
' the Jtsoits, but those thatnre their great mnj- 
' ters and faotors, thej liave the ptnver of th6 
' law, and dare check magistrates in the exc- 

* cution of their duti^ ; from them it conies that 
' we suffer their guilt, and the fear of punishment 
'that may beUlihem,bringsu9 upon those rocks. 
' There are omong tliem -some prelates of the 
' church, tlie great bii<liopof Wiuchetterand hia 
' fellows; it is apparent what they have done to 
' cast an aspersiun upon the honour, piety nnd 
'^oodnessoftheking. These nre not all: but it 
' IS extended to some olbeTs,whu,I fear, inguilt 

* and conscience of their own ill deserts, do 
'join their power with that biiliop, and th» 
' rest, to draiv bis majesty into a jealousy df 
' the pHrlisment; amongst them I «ball not 
' fear to iirnno the great !..oril Treasurer, lit 
' whose person is, I fear, contracted all thtil 
'which we suffer. If we look into religion and 
' policy, I lind him building upon the ground 
' [aid by ibe duke of Bucks, bis great master; 
' from hiTD, I fear, cnine those ill counsels 
' which contracted that unhappy conclosian of 
' the lust session of parliament. And whoso* 
' ever shall go about to break pRrliameiits, par- 
' Itntnencs wilt break hiiu ! I 6'iii chat not only 
' in the affections of his heart, hut also in rela- 
' tioo to liim, he is the hend of the Papists, 
' They and tiieir priests and Jesuits have all re- 
< laiiun to him, aod 1 doubt not to lii it inda- 
' bitably upon him ; and an fer from the ^rent- 
' n^ss and power of him comes the danger of 
' our religion. For policy in ihni great quea- 
' (ion of Tonnage and PoundREe ; chat interest 
' that ia pretended to be the king's, is but th* 
' iutercsl of that person to undermine the po- 
' licy of this government, nnd ihereby to weaken 
' the kingdom. It was the counsel of Ues^i-- 
' tales, phancellor to Chnrles the Ninth, kmg 

* of France, that the wny lo weak^a this king- 
' dom was to impeach (he trade of it, andso to 
' lay our walls waste and open. And I doubt 
' not, but bv the disquisition of • few days 

* to prove tfiat his labours are to midermine 
' us; That lie invites arrangers to come in to 
' drive our trade, or at least our merchants to 
' trade in strange bottoms, which is as dango- 



D. U. diet, et propalat. Kcuodu die Martii 
no 4. supntd. prefai. J. F. Prolocutor, prcd. 
apud We^itm. pred. ia dnmo pred. «lra cache- 
dram pred. adtuDC exiiten. in et super prrfoL 
J. F. adiuiic et ibidem in pace Dei et diet, do- 
jeffii iMult. feccr. et prefal. J. Finchtna- 
letractaier. ct violent, manu forti et iUicite 
contm voluntat. sufud in cnthedram ptcd. 
traxer, truscr.' et impuler. per quod Dii|n. 
tumult, ct pericnlosa commotio et caufusio in 
dom. cominun. prcd. el maiimi Eerror. pred. 
luilitib. ciTib. et burdens, ndtunc et ibidem 
oMemhlat. adtunc et ibidem mot. et'eicint. 



faer. 



r. debit. 






»23] STATETRIALS, 5Ch.I. 1829.— iVoc«</u^*i>gaBittSii-J.£«io(and«il(rt, [384 

' oui ; tfnd this is that which imprinls lliis fmr 
' in hii person, and makes liim lo misinterpret 
' our proceedings to his majtsty. Now there- 
' fore it »'i!l be lit ri>r true Englishmen to per- 
' I'orro their duties, and to tlxtvr tlieir desire of 

* ihc snfet]' biith of the king and kin^oin, and 
' to resoWc to defc'nd the siocerit; of our reli- 
' gion, mid to declure our resolutions also for 

* the defeiice of ihe right of the subject, wheie- 
' by *e moy declare ourselves to be freemen, 
' and to the more wealthy and able to supply 
' his ninjesty upon all occasions. And ihat 

* we slmnld declare all Ctint we have suffered 
' to be ihe eflect of new counsel*, to the ruin 
' of the guvernioeut of thii state, and lo make 
' s proteiitnlioii against all lliosc men, whelher 
' greater or subordinate, that llipy eb:ill all be 
' deduied as cnpitul euemies to ihe king and 
' kiugdum, that will persuade tlie king to take 
' Toiiunga and Poundage without grant of par- 
' liamtnt And that if any merchanis shall 
' willini(ly pay tliose duties without eonsen " 
' parliament, they sbnll be declared as ao 
' aaries to the rest.' Qiiodque pred..D. H. 
cundiun-agrcament. et cniispiration. inde ii 
ipsum et prufat. J. K. & B. V. ut prefertur ; 
nnbit. poslea sciIic«t/oden> sccunda die M: 
ftDDO 4 soprad. apud H'e^tm. pred. in eadem 
douio commun. parliament. luilicib. cirib. 
burgens. adtunc et ibidem assemblut. et in cc 
presentia et auditu altn voce falso malitiose 
tedjtiosa dt:ii[ et propalavit hec folaa ficta m 
Ijiiosa pemiciosa et sediiiosa verba Ariglica 
Bequcn. videlicet, ' Whosoever sliall counsel 
' me taking up ofTonnage and I'ouudage with- 
' out HO act of parliament, let him be account- 
' ed B capital eii«my to the king and Kingdom ; 
' and what merchant soever shall pay Tonnage 

< and Poundage, without an act of parliament, 
' let him be account^ a betrayer of llie liber- 

< ties of the subjeci, and a capital enemy to 
' the king and kingdom.' Quodque prtfat. B. 
V. & b. 11. secundum agreament. eC conspi- 
ration, pred. inde inter eos et prefat. J. E. pre- 

' habit, ad intention, et proposii. pied, et aa in- 
tention. quoA. prerat, J. E. & D. U. pred. 
falsa malitiosB scandidosa et tcditiosa verba 
pred. in forma pred, et nd intention, et propo- 
aita pred. per eus pred. secunjo die Marlii 
■noo 4 euprad. diet, et propalnt. uc prefertur 
diccrent et propalarent eodem secundo die 
Mnrtii pott signification, pred. pred. benepla- 
cjti diet! dom. regis pro odjomameot. diet, 
domug coinmun. parliament, ut prefertur. 
fiend, par prefat. Prolosutorem fiict. et ante 
diclionera et Propaiationeni aliquor. verbor. 
pred. prefat. J. E. & D. H. eodem wcundu " 



Martii ct prefertur diet, et propolat. prefa 
Johanne Finch Prolocutor, pred. adtunc. et 
ibidem in ipjadam calhedm Anilice vocat. ' ibe 
'Speaker's Chair' in dome pred, existen. et ex- 
tra pred. secundum inaudat. dicli dom. regis 
«i in hac parte prius dot. ire conan. i« et super 
jirefat. Johanoem Finch adtunc et ibidem in 
pace Dei et diet. dom. reius ciisieu. vi et 
t illicitt insult, fecer. 



tempt, et n 

mini reiiia et derogation, persone 

pterogHtive sue r^ie et in legum et status nu- 

jus regni Angl. subversion, et in magn. scandal. 

et ignomiiiiam contiliar. de privato concilio 

dicti dom. regis et al. magnat. prelator. et 

procer. hujusregni Angl. et justiciar, ctjnstic. 

dicti dom. regis ac in disturbation. etlcrrartra 

litat. in pariiameni. pred. sic ut pi*- 

assemblal. necnon ad pessimum ec per- 

linuiQ eiemplum omn.al.'in bujusmodi 

casu driinquen. et contra paoem ^usdem dom. 

re^s coion. et dignitat. sua! necnon coatra 

foimam stalul. &c. Unde idem attorn. &c. 

Mr quod precept, fuit vie. quod non oniitt, 

&c. Quin venire fac. eoi ad respond. &c. 

The Defendants plead severally for tbemselvei, 

that they were Parliament-men, and that 

tha offence was comiflitted in parliament, 

and ought there to be heard Mid detenain- 

ed, anil not in the King's-Bench. 

Et modo scilicet die Martisproi. potloctab. 

Sancti Martini isio eodem tennino coram dom. 

rese