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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 ■
isTPSripeak 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 pwcByMiBWfc 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 iaqaishionea 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 0
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-
Ultptcut sake the w>q nl' mi tJi«i heir 16 hii
&tlier, nor ca taj otber, Ibr be ca¬ 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 imprJeoac^ 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 'Beiaittitttr |>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. 0 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
regis 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 dkwBim (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 '
0 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
* Mawsi 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
lieawgea, (I deal plaiulji^ for so I aui com-
Kiaaded by the House «f Commons) we did
consider, 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 powwtion 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
bweecb 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 clMae, 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 Mgumenl
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 aaaMbori 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 0 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
ikepeaple 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 jwtWM,
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—
* famoiiMawiiirwptiapiaiithiaBtiiMaii^
. — 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 preseiiatieit, 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, iutai'm-Uusi, 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, 0 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
iwprite 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 theaca 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 uffenoes 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 apud West. ven. pred. J. E. mil. B. V.
& D. H, in propr. persou. siiis et pred. J. E.
tiabit. audit, lofonnation. pred. idem J. qooid
9up|iosit. tranagr. offens. et contempt, pred. in
iaiorviatione pred. mentionat. in dicend. ec
propaland. pred. Anglicana verba in infbnna-
tiune pred, superius recitat. Ac eidem J. pet
informntionem pred. in forma pred. imposit.
die. quod ipse nun intend, quod dom. m
nunc de out pro supposit. transgr. iiSens. et
contempt, ill. eidem'J. tic imposit. in cur. dicli
dom. rtfisnuoc hie responderi vclit ant debeii
quia die. quod pred, supposit. oSeni. Cranigr.
et contempt, in dicend. et propaland. pred.
Anglicana verba in informatiooe pred. oieif
tiaiiac. ec eidem J. in forma pred. imposit in
Eorliameat. et non in cur. dom. re^is nope
ic audiii et terminari debent, &c Etulleiioi
idem Johannes die. quod ipse preJ. IS *'''
Martii anno 3 suprad. in infucmatione pred.
mentionat. debilo modn elect, ct retoro. fuit
nn. mil. pro pred. cum. Comub, iii parliament,
pred. desemtur. pront in infonnatione prcd.
superius mentionat. Quodque idem, J. tempore
Auodetn J, finch nialetnciaver, et eundem J. ' supposit. ofieiu. tmasgr. et contciopt^ F<^ *"
325) STATE TRIALS, SCbarlbsI. i(m—M*^itioia :^>eKhainParticmifnt..{S^
tficend. et prapaland. Anglicana verba pred. i
(idem J. in fjnn> pred. tmposic nc duron. loto
tempore pariiunenc pred, spud Westrn. pred.-
(mc et reminut un. mil. pro Com. Comub.
pre*!, pro eodem parlinment. Et boc pnrat. eit
Ttnfioire unde ex quo in infurmatlone prej.
crideiiter appsrct et pl«ne lii|uei quod supposii.
obns. transgr. et contempt, pred. in dicetid. 1 1
propaland. Anglicana verba pred. eidem- J.
ID forma pred.impoait. e( per mlbrmatjon. pred.
■nppoiit. comraiss. fore comiHiss. fuit in pred.
Aomo coiDmHJi. parliametit, pred. in parlia-
Bieot- pred. idpinJ. pel, judic. ei pred. dom.
rei nunc liic de oSens, trun^r. et contcinpt.
pred, quoad Anglicana verbal pred. per ipium
J. in parliamenl. pred. in forma pred. dici et
pn^alari iiupposir. in cur. dicti dom. legit none
bk retpondcri vrlit ant debeai. F.t quoad tut.
mid. wppmit. ofleos. tran'gr. et contempt, in
infonnaiioDe pred. meotionnt. eidein J. in for-
ma pred. impoMt. eidem J. die. quod ipse non
idit quod dicius dom.
perina in funna pred. impusit. in cur. dicti dom.
ngi* nnoc hie reaponderi velit aut debeat quia
die quod resid. pred. supposit. offens. tran^.
et contempt, in infonnntione pred. luperitu
uec. eidem Jolianni per inrormatiou. pred. in
tama pred. impo^it, in parliament, et non in
cur. doro. regis none bic audiri et tenninari de-
''bent. Et idein J. ulterius jdic. quod ipse pred.
16 die Martii anno 3 suprsd. ui inrormaiinne
pred. mentionat.debitomodo elect, etretomat..
bit un. mil. pro pred. com. Comub. in pred.
paHiainent. deservitar, proui per inroimntion,
pred. superius lUeDtionnt. Quodque idem J.
tempore mid. iuj)posit. offirns. Iran^r. rt con-
tempt, pred. ei in furmn preii. irnposit. Ac
dnran. tuto tempore parliament, pred. apud
Wenm. pred. foil et reniHniitun.mil. pro pred.
ctKn. Comub. in parliament, pred. Bt boc
parat. e«t vertficare. Uade et ex quo in infbr-
matione pred. evident, apparel et plcne liquet
quod pred. rbsid. pred. supposit. traDBgr. ofieui.
et coDlempl. pred. in informatione pred. men-
lioBiL eidem J. in forma preit, imposlt. per ean-
dcm bfbnnatioD. siipposil. fore commiu. Tuit
coniniin. in pred. dcuno common.' paj-liamenc.
pred, in parliament, pred. idem J, pet. judic. si
dicing dom. rei nunc de reud. pred. suppogit.
offeoi. Iran<gr. et contempt, iniinformutiane
pred. mentionat. eidem J. in r<irma pr^. Im^
posit, in patliBmenl. pred. in forma pred. fieri
■unpntit. in cur. dom. regii nunc Idc rcsponderi
Telil aut debeat, &c.
& pr«d. Benjamin. Valeniitie hithit, audit,
iofbnnation. prod, idem B. die. q nod ipse nonin-
lendit quod d ictus dom. rex nunc de nut pro sup-
potii. offeiu. et contempt, pred. in infbrmalinne
pred. metilionat. eidem B. per eandem informa-
tion, impnsit. in cur, dicti dom. ref^ii nunc hicre-
iponden relit autdcbeit. Quia die. quod pred.
tojipoiil. (^ens.transgr. et contempt, in inform-
atraae pred. mentionat. eidem B. per eandem
infbrmauonem in fbrnia pred. impostt. in pnr-
buncQt. et Don in cor, domini regi» uunc bic
;
ri et terminiui defient. Et idem B. ulte-
dicit quod ipse pred. 16 die iUurtii nnno
3 sapnid. in infonnaiione pred. mentionat.
debito modo elect, ei retorn. fuit un. burgeni.
pro predict!) burgo de St. Germans in pred.
com. Comub. in pred. paiiinment. dctcrritur,
prout per Inrbrmaijon. pred. supciius men-
(ionic. Quodq; idem B. tempore uipposit. of-
fens, transgr. et conicmpt.'pred.ei in forma pred.
imposit. Ac duran. torn tempore parliament.
Ered. apud Wetlm. pred. fuit et remanslt. un.
urgent, pro pred. tiurgo. de St. Germans in
eodem parliament. Et hoc pnrat. eit yerig-
care. Unde et ei quo in i ii form atione 'pred.
evident, apparet et bene liquet qui>d stipposit.
nffenj. irnnfgr. et contempt, pred. in informn-
tionc pred. mentionat, eidem B. in farma pred.
imposit, per informntion. pred. suppueit. fore
commisi. fuit commits, in pred. domo common.
parlinmenli pred. Idem B. pet. judic. si dictos
dominus rex nunc d« offens. traiisgr. et con-
tempt, pred. sic sibi imposit per ipsum B. in
parliament, predict, lien lupposil. in cur. dicti
dom. re|;is nunc hie retponderi relit aut de-
beat, &c.
Etpred. Deniil Hollts habit, audit, mforma*
tioo. idem O. quoad suppoiit. transgr. offens.
et contempL pred. in informatione pred, men-
tionat. in diccnd. elpropaland. pred. Anglicana
Terba in infuimntione pred. superius recital.
Ac eidem D. per information, pred. in forroa
pred.'impo^t die. quod ipse non intendit quod
dominits rex nunc de aut pro supposit. transgr.
ofTcns. et Contempt, ill, eidem. D. aic imposit.
in ciir. dicti domini regis n^nc hie respunderi
velit anf debeat. Quia die. quod preil. sup-
posit. oBens. trans, et contempt, in dicend. et
propnlaiid. pred. Anglicana verba in informa-
tione pred. meiiiiunnt. eidem D. in foima pred,
imposit. in parliament, et dod in cur. dom.
regis nunc bic audiri et lerminnri debeant, SfC.
At ulterius idem D. die. quod ipse pred. 16 di<
Manii anno 3 suprad.'in infomiatione pred.
mentionat. debito modo elect, et retomat. fuit
un, burpent. pro pred. burgo de DorcUesier ia
pred, com. Dors, in parliament, pred. deservitur,
prout in informatione pred. superius metitiunat.
Quodque idem D. tempore supposit. olTeni.
tran^r. et contempt, pred, in dicend. el pro-
paland. Anglicana verba pred. eidem D. in
forma pred. impoMt. ac duran. toto tempore
parliameflt. pred. apud Westm. pred. fuit et
remansit. un. biirjjens. pro pred. bur^ de Dor-
chester in eodem parliament. Et hrc parat.
est verificare. Unde et ex quo in inrormatioDC ,
'nd. et ptopaland. Anglicana verba pred.,
eidem D. in lormn pred, im^oftit. per informa*
lioncm pred. supposit. tore commist. fiiit com-
miis, in domo pred. common, parliament, pred.
parlinment. pred. idem D. pet. judic. si dictua
dom. rex nunc de ofTcns. trnnsgr. et contempt,
pred. qnniid Anglicsna verba pred, per ipsum
D. in parliament pred. in forma pred, dici et
propaiari supposit. in cur. dom, regis Dane hie
responderi velit aat debeat. Et quoad tot.
3j7] state THIALS, SCb.I. \6i9^iyotxtdingiagmut8ifJ.mwl<adothen, [S»8
. &c. £c Bimitfr quo ad plncitum Dtnail
IloUis.
Tb* Dcfendanu >e*er*l]7 join io DemsTrer,
Etprcd. J. Elliot mil. lU priut die. quod |iti
citjm pred. per ipsuiu J. superius m f"'-
pred. placitat. maUriBque inpfacilo prcd.
resid. suppoiiit. oflens. transgr. el contempt,
infunuatione prcd. meiitioiiiic. eidcu D. wpe-
rius in funtia pred. impoait. idem D. dirit quod
ip!>e no!i intcndit quod did us dom. rtx ouucde
abt pro pred. mid. olTena. transgr. et contempi.
pi-ed. ia eadeio infonnatione meotionnt. eidein
D. Guperius in furnia predi
<lf heat. QuiiL die. qund preil. tcsid. snppoiit.
uiTcna. Iransgr. et cuiitenipt. in inrormnUone
prcd. iupi^tu ipecilicat. eideni D. per informa-
tion, prcd. in lunna pred, imponit. in parlia-
ment. et non iu cur. dom. regis nunc tuc aLdiri
et lerniionri debcnt. Et idem D. ulletius die.
quod ipse prciL 16 die Martii nuno 3 suprad.
in iiifunnntioTiG pred. ncBUOiiat. debito modo
elecl. et returnat. tuit un. burgens. pro prcd.
buisn de Uorcliciter in prcd. com. Onra. in
(ire?, parliament. deMrvitur, prout per iiiiurm*
aiiiin. pred. tuperius mentionatur. Quodque
idem D. tempore re»d.»uppo9it.o[rt'iu. trani^.
et contempt, pred. ei in rormo pred. impuiit.
HC duran. luto tcinpure parliament, pred. apod
Westui. pred. fuit ei rcinauait un. Liii^eni. pro
pred. burgo de BorcLieiiter in pred. com. Dors.
)n pailianieDt. pred. £t hoc parat. est verifi-
care.' Uiiiie et ei quo in iulbrniatione pred.
evident, npparct ct plene liquet quod pred. re-
•id. cuppi>sl'.. olTeU]. tnuisgr. et coutcmpi. pred.
in inluimatioae pred. mentionat. eideui D. in
forma pred. imponit. per eandem infarmationem
luppon. fore coinmist. in pred. domo cnmmun.
pariiamant. pred. in parliament, pred. idem D.
pet. judic. si dictuB dom. rei nnuc dc reud. pre-
dicL supposit. oflens. tnmsgr. et rootempi.
iiiliinnatione prcd. mentiouat. eidem D.
ii)rina pred. iiuposJt. in parliament, preit.
frinua pred, fieri supposit. lu cur. doui. regis liic
Tosponderi relit aut dcbeat, &i
The Attorney-General demurs in the Pleas
El prefat. Robcctus [leath mil, qui scquitur,
lie. quoad prcd. pUici(um prcd. J, Elliot. pro
eudtm dom. nsf: die. quod placitum ill. prefat,
3. iu forma pred. auperius placitat. male
ill placito pred. content, minus sQiTici
Icfy emtuut ad yrecludcnd. cur. hie ajurisdic-
1)01). siu audieod. et teroiinand. ulFcnB. iranagi
et contempt- in iiiformatioue pred. mentionai
eidcm J. per eaudeiu inlurmationctu in forma
pred, imposit. Unde pro defeclu EnIficieD.
spon. in Fihc parte pet, judic. Et quod prefiit.
J. dicto dojn. rc^i in cur. hie rispondoat de
' EC prefat. R. H. mil. qui sequitur, lie. quoad
pred, ^Iicitum prclnt. S. V. pro eodcmdonii
rege die, quod placitum ill. prefat. B. in fon
pred. Mipvriut plaeitat. materiaque in eodi
content, minus sufficicn. in lege cxisL ad pre-
cludead. cur, liic a jurisdiction, sua.audiend.
ct tenniiiand. ofiens. tronigr. et coatempt.
Sed. in iiifurmutione prcd. mentionat. eidem
. per eaiidcm iufunoatioa, in forma prad, i
C'lt. Unde pro de&-ctu uiEcien. reipoiu.
parte pet. judic, et quod prefat. 11. dictd
rivin. JKfi iu cur.' bic Fc^ndeat du et io pre-
lege exiatunt ad pre-
cludend. cur. hir n jurisdiction, sua audlend.
et termtiiand. oti'cni. tran^gr. et coatfmpt,
pred. in infurmatiune pred. mentionat. eidem
Jolianni per eundem niformatioiiem in fonuk
prcd. imposit. Quod quidem placitum mj-.
ti^rimnque in eodein placito content, idem J.
E. mil. ]iarat. est vciiGcare. Unde ex quo
idem attorn, dicti dom. regis pro codem duin.
rege ad plncilum ill. non retfMjnO. nte ill. nli-
dedic. scd rciilicat)Dn. ill. admiltete
I reeutat pet, juriic. et quod ipse idem
J.'de offens. trinsgr. el contempt pred. in iiv-
foi'maiione pred. mentionat. eidem J. per can-
dem iufurmationem i» forma prcd. imposit. per
-. hie diniiituiur, &c. Et sic de vetlo ia
bum pro Valentine et llollis separatim.
The Attorney-General pra7» that the Defend-
ant) may ansner.
Et quia cur. dom. regis hie de judic. ino
inde reddend. nondum adiisstur dies inde dat.
est tnm prefat. Kuherio Ilentb roil, qui m-
^uitur, &c, quam pred. J. E. B. V. & D. H.
in iiatu quo nunc, &c. u»que octab. Saocit
Miliar, coram dom. rege ubicunque. Sic dejn,-
dicio 9UO inde audiend. eo quod cur. Dondum^
&c. Ad quas quidem oetab. Snnctl Uillar.
coram diim. rege apud Weslm. ven, tarn pre-
fut. R. 11. qui sequilor, (tc. quam pred. J. E.
B. y. & D. II. in propr, person, suis, Et pre-
fat. R. U. qui iiequitur, &c. pro eodcm Aim.
regc pet, judic,
Jadgment that the Pleas to the JurisdjctioD of
the KiogVBench are iasuKcienl.
, Et qotd ured. J. E. B. V. D. II. dicta dom-
regi il) cur. hie rcspoiideant et For, quiltbet n-
ipoDilent de et in premiss. &c. Super quo n4i
leclis et audit, omnibus et sinculis preraisi. ^lo
eo quod vidctur cur. hie quod sepaml. placitN
pred. per prefat. J. K. B. V. & D. H. id forms
prcd. superius placitat. nrnleriaqae iu srpBr«).
placitis pred. content, minus sofficten. iu le^
existuiit ad precludend.
The Defendants ordered to ensner over.
Cur. hie a jurisdictions sua audieiMf. et tar-
minaud. oB'eus, trani^r. et cnnrempt. pred. in
informatiane'pred. mentionat. risdem J. E. B.
V. & D. U. par eoudem information, in forau
Ered. hnposit. dictum est eisdem J. E. B, V. &
>. U. qaod ipsi iidem J. E, B. V. & D. H.
dicto dom. r>^ in cur. hie resposdeaat & Mir.
quilibet respondeat de et in premiss. >■ inCat-
maiione preu. euperius cootent, &e. Et lupw
hoc diet dat, eu per^cur. ei«deaJ, E. fi. V. He
D. 11. '■omin dom. rrf^e ubicunque, £te. uaqu«
diem \'cueris prux. post octab, Pitr. bcate Mpia*
Vir^^in. ad inteimatian, pretti^. inweloqiwiid.
et tunc ad rcipond, periculn auis.
399] STATE TRIAI^ 3 Chaklbs 1. 1029.
Ad qaen diem coram dam. rege apuit Wotm.
nn. (am prefat. R. H, qui sequitur, &c. quani
prcrat. J. E. B. V. & D. II. in pmpr. personii
nijl. Et prcfat. J. E. B. V. tk U. II. tiCct ijisi
tepins premoiilT. et tolempnit. exact, ad re-
(pond, iiiliil dicuni in barr. aire eiiintraiiou. in-
famialioD. prtd. jjer quod idem duihlnuj rex
Rtnanet rerjus eos iudf fense, Ideo cons, est
quod pred. J. E. B, V. & D. II. capinntur ad
sitisfdciead. dutn. regi de liiiib. luls occoEioae
Iraasgr. e( contempt, pred. Ac qaod habeant
imprison ament. corpor. iiior. ad voluntal. ipsiui
doai. rrgn, el qaod antpqiioin delibercntur qui-
libet eoc. iiiTeniat, iiilfic. si^cur. de se bene
gerend. erea dictum dominuin regcm et cunc-
lom pnpuluin suum. Et qaod pted. J. E. cum-
mittatur locumtenen. Titrris durnini regis Loo-
doD. sairo cuslodiend. quotuque, &c. Quod,
que pred. B. V. & B. H. commiitanlur Mar.
maresc. domin'r regis oram ipso rege »alvo cu»-
todiend. quomque, &c.
Et finis ejusdem J. E. nfferotur per cur. oi-
cauone predict. ad'S,000(.
Et Gmi ejusdcm B. V. alTeratur per cur. oc-
ca^one pred. ad 500'.
Et 6nis ejusdem D. H. afferaiur per cur. ad.
1000 merciu.
paid his Fine.
Pmica scilicet die Lune prox. po«t octab.
Pur. beate Marie Virgia. nnno Itgai doin. Ca-
roli nunc r«gi* ADgl. jrc. 12. cixnm dom. rc^c
apud West. na. Joliannu Bnaks mil. ■tium.
ditM. regis ounc general, qui pro eodem don.
rrge aiod* in hsc parte leqaitur et pro eodera
doDi. rega die. et cognuvii quod pied. D, H.
■olfit et Mtiafecit prad. 1,000 mercu recept. ad
Scaccarii dic'j dom. regit ltd usnm dicti dom.
rtgii in plen. latisfactjoo. pred. finii mper ip-
*mii D. pru alTeus. pred. iu informatione pred.
foperius nominat. per cur. bic in iptam impn-
sit. prout p«r constat, tab muu Edirardi Wat-
rfnor mil. clerici pvUium recept. Scaccarii dicti
dom. rmia bic in cur. Mtena. plene liquet. Ei
pro eodetn dom. r^e idon attorn, dicli dam.
ngii general, cogoovit di'ctam ifom. r^«in tnde
fiire (Btiitactum, Ideo idem D. II. de eisdem
1,000 mttda eat omIc quicL
M anotber time after, tlie Attomej brini;* into
Court the king's Letters Patents under bis
iirivy-seal, whereby the kii^ lemjts to V»-
entmc his Tiiie, and all the mt of the Judg-
ment ; and ptsys tbe sane may be enrolled
and allowed.
Poslea acilictt die Mcrcar. prnx. post quio-
dciv Pascbe •ww r^ni diati dam. re
Ab^ &C. Iff coram dom. rege apud
wta. tnhnanfi Bank* miL ationi. doBi. regis
MHC general, io profFr. persona sua. Etpro-
laKt is c«. dieti dan. rqps coram dom. rece
Mac ibidem muditan brci
da pnrat. «gilB> tiki et al.
-for tedilioui ^leaha in Parliamaa. [SSO
lud irrotului at allocari, cujus quidem breris
IsDor sequitur in hac verba : ' Charles, by tbe
' gtace of God, king of England, Scotland,
' I'raiice, and Ireland, Defender of tbe Futb,
' f(c. To tbe lord bigb-treasurer of England,
' chancellor, uiidet-tiexiurer, aiid baroDi of
' out Excbequer, nnd all otiier ofiicm and mi'
' nisten of ibe eaoie court for the tiiqe being,
' mid to tbe chief-juttice, and the reat of our
' juuiccs of our court of King's- Bencb, and lo
' our otlorDcy-gfneral, and all oiber olhcers
■ and miniiten of tbe snme court for the time
' being, greeting. Whereas in Michaelmas
' term, in the tenth year at nur rt'i^, upon on
'Information in our name exhibited in nur
' court of Kiog't-Bencli, egninut BenjaniiD Va-
' leutine, e>q. ; and otlien, for divers oBenccs,
' trespiMsM, and cnnteinpis ibercin mentioned,
' the said Benjamin V'Blciitinf , by Judgment of
' the same courl, was lined to us in tlie lum of
' 500/. and to be commitred to our pnsoa of
'our Dflurshahea during our pleasure; and
' that he sIibII find sulhcient security fur hi*
' good bebaTioor to us and our people, as by
' ihe laid Informatiuu and Judgment there-
' upon remaining upon recerd in oar >«id court
' of KingVBench, more at targe may appear,
' And wberaas the said B. V, haib been re-
' strained of his liberty biucc th* last pariia-
' ment for not satisfying ihe said tine to nnpos*
' ed on bim, ns aforesaid. Nor know ye, That
' tie of our special grace hare remised, rtleas-
quit-claimcd, and by these presents.
fori
.ROd
lease, and quitclaim unto the said B. V. the
' s»ld Hne or sum of iOOl. by the Judgment of
' nur snid cnurl on him the said B. V. imposed
' as afuresuid. And all coinntitment, imprison'
ment, and other raaUers whatsoever adjudged
' nr inflicted upon him by our said court, ftir or
by reason of tbe tresi>iiue», otfencei or con-
tempt! aforesaid. Wherefore we do by these
' preseuti will and require, a> welt the lord-
' treatunir, cbanccllor, under-treaanrsr, bd4
' bonwsof oar Exchequer, as the justices of
' our cuurl of Kii^'s-Bencb, and tha ulbcer*
' and ministers of the said several couns re-
' spectitely, to wlioni il shall or may appertain,
' cease to make or grant forth any cxtiDn,
' seiiores, execuuoas, or otber ptoceat nhai-
' Kmer, agaiast lh« said B. V. bn heirs, eia*
' cutor* or adminiatrators, or his or their Innda,
' tanamettl*, bereditaroents, goods or chatleb,
* far or concerning the lavjing of tbosaid Baa
' or som of SOOf. or any part ihrmf, And
' tbat they take order m well tor Us fiill and
' deal discharge thereof, as of and from hii
' oommitnient and imptuooiBeut as a&resaid.
' And these preieuts, or tbe ctvolment tkei»
' of, shall be unto ibem, and every of tlicm l»
' Aboa it sball at may appertain, a Mfficacat
' rrorrBBt and discharge m tbat behalf. And
< liutly, we wit], and by these presents authO'
' n«c and require our nttomey-general for tbe
' tine Uiiiig, tor us, and i* sue bebol^ ta ac-
S31] STATE TRULS, 5 Ch. L K^d^Proceeda^egahuiSirJ.EiliolandoiheTi, (332
< kaof kdge )aii;ractlon apon record af BTid for
• the snid fine of 5001. on the said B. V. b;
' Judgmpnc of our said cnuri so imposed as
f Htbresniil, Wiiereby be may be fully and ab-
' solutely ncquitled and dischai^ed thereof
' against us, our heirs and aucressors ;
. * these presents, or tbe ecrolnlent thereof, shall
' ' be unto our saiit attoruey-generai for the
' time being, a good and suScieiit narrant '
' that behalf. Given under our priij-fcal
' our palace of Wrstminiter, llie 7Eb d.iy of
' March, in the fifteemh year of our reipn.'
Judgraentof the Court at iheAllorne.y'B pro ji
that Valeutine be discharged.
F,t,super hoc idem J. B. miles attorn, dirti
dom. regis general, fro eodem dom. recc
tute farevis de privac. sigiUo predict, ilic
coeuovit ipsum domi^utn regem fore pit
CHtisfacC. de pred. fin. 500^. super ipsum £
pro affeui, predict, in infDrmalioiic predict,
mentioaal. per cur. bic ut preferlur imposit. ec
pet. quod pred. B. V. viraute brevis pred. de
imprisooameni. suo ads. ipwua dam. rM;is et de
judic. pred. exoneretur et dimittatur super qu<
vis. el per car. hie intellect, omnibus et singu-
lis premiss, cons, est per cur. quod pred. B. V
pro oiTcns. pred. in iafbrmatiane pred. supcrius
menlionat. per cur. hie ut prefcrtiir iinpoeit. ait
inde quiet, et cut inde une die, et quod ipse
idem B. V. de im prison amen t. suo ad sect.
dum. regis et de Judic. pred. versus ipsum B.
in forma pred. reddit exoneretur et dimittatur,
D. Holtis, non- Lord Hollis, brings a Writ of
l^rror upon tbe said Judgment, returnable
in E'arliamenl.
Postea bcilicrt 13 die Febr* ntino r^ni dni
nostri Caroli secunJi nunc regis Aiigl. &c. SO
. dominus rex maaitavit dilccto ^t lidel, suo Jo-
hnnui Kelynge mil. iMpital, jusCic. dicti dam.
regis ad placita coram ipso rege tenend, assign.
brere suum clausum in htcc verba, Corolus se-
cundus, &c. dilei'to et fidel. Qoitro Jnhanni Ke-
lynge mil. cnpital.justic nosiro ad placita co-
rmm nobis tenend, aasign. salutem. Quia ia
record, process, ac etiam in redditione judicii
tuper qunuilaiu infbrmationem iit cur. dom. Co-
roil priini nupcr regis Angl. patris nnstti pre-
chuusimi coram ipso nuper dom. rege exhibit.
per Robertum Heath mil. tunc attorn, general.'
ipsiuB nuper dom, regis, qui pro eodem domiuo
rege in ra parte srqutbatnr versus Johanoem
. Elliot nuper de London mil. B. Valentine nu-
per de London pred. «r,' et D. Uollis nuper de
Lond, pred. ar, de divers, malegeiitur. ut dicilur
error mtervenil mnnifestui de grave dampn.
ipsius D. H. modo dom, Hullis baron, de
Ifeild sicut ei querela sua nccepimhs, Nos
ferrorem siquis luetint modu dcbiio corrigi et
eidem D. H. modo d'lmiuo Hallisbiiron.de
Ifeilid plenam et celerem jusiic, fieri volen. in
bac parte vubis mundamus quod si judic. inde
reddit. sit tunc record, et fitocess. f red. cum
omnibni ea langen, nobis m present, parlia-
meat, uostrum distincte et apeiie auttatis et
hue breve ut inspect, ret^brd. et process, pred.
ulierius inde a.csensu dominor. spiritual, et
temporal, in eodem pwliameiit. exitten. pro
error, ill. corrigend. quod de jure et secunduni
legem etcous. regiii noHriAi^l. fuerlt feciend.
T __:.__ _ J WesUn, 13 die Febr. anno
regnii
riao.
verbor..in domo
The I^rd Chief Justice delivers the Recon),
Virtufe cujus quidem breiis dicCus capitaL
inslic. record, pred, dom. r^i in present, par-
iameiit propr. mnnibus pratulit secundum exi-
geiic. ejusdem bretis et postea &cilt. 8 die Slar-
tii anno regni dom. regis nunc Caroli secundi
30 comm ipso rege in presenti parliament, ven.
pred' D. H. modo dom. Hollis baro de Ifeild
per Samuel. Astry atlotn. suuniet dicit quud in
record, et process, pred. bc etiam in redditione
judicii pred. manifest, est errat. videlicet in lice
verba m infbmiatione pred, mentionnt. fore
dicti et prounbt. in d<>ma cummun. parliament. '
per pred, D. U. modo duminum Hollis tunc ei-
isten. hurgens. pro buigo de Dorchester in tunc
presen, parlianieiit. deservien' audiri et tcraii-
iinri in domo commun, parliament, debeanl pec
lege'n lerre et non in cur. domiiii regis et in
hnc quod per information, in dicto record, inen-
tionai. idem D. H. miido dominus Hollis one-
in diccione et prnpolntione quonindam
mniuD. p:iriiament, ac etiam
insgrs. ei insult, fact, vi et armis sapn'
em Finch Hrolocutor. ejusdcni tunc di>-
m. parliament. Ad que idem U. H.
modo [iominus H. quo sepanii. pindta placilft-
bal tamea unicum tanlam judic. reddit. est d«
utroijue per cur. et u^irjs hnis ubi duojudicin
redili et duo lines imponi dcbuissent quia si
forte transgr. et insult, audiri et tcnninan forte
possit aut debCat in cor. dom. regis comin ipso
rege tamen dictio et propolatia vrrbur. qnorum-
cunque in domo commun. parliament. |ier bur-
gens, in eodem parliament, diservien.alibiquani
in parliament, audiri sen tenninari non debent,
&C.
Et Galfridus Palmer mU. et bar, nctom. d»-
njini regis nunc general, qui per end^m dom.
rege in hac parte sequitur presen, in prupr. 'p«^
sona sua pro eodem dom. rege dicti quod nee
in record, et process, pred. nee in redditione
judicii pred. in ullo est errat.et pet.&c.
A MessR^e vas sent to tha House of Com-
ons by sir William Child and sir Justinian
;"in, to acquaint them, that the Lords ri»
jree to those Voles which were delii ered at the
Conference yesterday.
Die Mercurii, 15 April, lefiS.
" Whereu counsel have been this day heard
the bar, as kcII to argue tbe Errors assmned
b^- the lord Hollis, haron of Ifeild, upon a Writ
of Error depending in this house, broi^it ajniost
- Judgment given in the court of King's-Bcnch
1 S Car. 1, against tbe said lord Mollis, by the
ame of fienzil Hollis, esq. and otbeis ; as alsn
> maititain and defisnd the said Judgment on
hit oit^esty's behalf: Upon due contideratiuB
333] St\TE TRIALS, SCsarlesI. \629.^M tediliout ^xecha ia ParUainail. [384
M of whit bath been offered on botb' parts
thci«iip(>D, ihc Lords ipirinui) Euid temporal in
parimDiciil do order and odj udgp, ThRt the said
J«l|Bieflt given id (be court ol King's- Beiich in
jCar. I, i^iiBC the »id Deoiil Hollis, and
sdien, thalj be rerersecl."
Tlu Form wberenf (to be affixed to the Tran-
•cripc of ilie Uecord) followecli :
' Ix qoia curia paHiammti de juHicio atio de
< A super przmissis reddend'nonduin adviutur,
I pnedict' Gultrido Pahiier
' diet' Denzil domino HoUn coram eadam
'iBqua ad diem Mercurii decimum quintum
' iliua Aprilit time proiimnm seqaentem apud
'Wntaionasc. in comitat' Midd'dejodiciosuo
'indo aodiend' eo quod curia predict' nqndum,
'&c, Ad qitem diem coram cuiia predict'
■Gairndus PaJmer qui sequitur.&c.quani pre-
' dictni Denzil dnminus Hollis in propriis per-
'imii mis. Super qau, viiis, et ppr eaodem
' ic pleoiui intrlleeti
' Bopilis prKmlai
delibura
' iode babita, consideraturii eat pi
'diciam, quod judicium prcdii:
'picdictoi et alios in recordo el proc^ssu pi
' didis compertos, revocetur, adouiletur et i
' ailui pni Dullo habcDtur. Et qund pradict'
'Deiuil domiaui Hollis tut omoia quz idem
'Ueniil dominua Hollis occasione Ju|Jirii pne-
ItM«a9 to b« but just towards the charac-
Un of the Judges of tliii time to add ihe fol-
kiiria| passages from Kennet ;
"'Hie urgent neceuit; ofSapplies, to be in
IMW measure suiufale to the king's honour,
ud the very nation's support, must exercise the
kia^s council in finding out all possible nnjs
tad neaas to bring in money. In order tc
thii argent end, the kiiui sent lua letters, datec
Mij 13, 1630, to the Judges and Atlonjey-
Gtoeral, to frame and publiab certain orders
Ibr etecuiion of tbc olEce of Receiver and Col-
lecur of Fmea and Forfeiture!, erected by his
IiU father of blessed memory, and hy his present
majestj coafirioed to John Chnmberlayi
B^<Uy's physician, and Edward Brown, __,.
Tujndgn met and concluded, that the said
letters patent* ffere buih against law and bis
nujfsty's profit, and sent au account of the
castas aiMf irregularities in'the said patent, i
letter from all tlie Justices aad Baroiu, direc
Kmatly to the Lord Keeper and Lord Trea-
surer. And thoueb this did well demoos'
die integrity of the Judges, that tbey v
neier prostitute an opinion to tiie mere ioi
of the kiog; and dtd as nmch Tindicat
insjesty's honour, that he would inaiat ape
■uthod, though be^n by his father, which the
Judges of his realm should not proiiounc
1» Mrictly lawful ; yet, lioweTer, this t«o
^lied to the prejudice of the court, as if they
weie puraoiiig methods which the very Judges
MndoBiKd foe arbitrary ud illegal.
" Westminster- hall was exercised with manj
singular cases, that serre much to express the
disposition of the times. In Easter Term sir
Henry Mnrtyn, LL.D. and Judge of the Ad-
miralty, made a great complaint to the king
against the Judges of the King's-Bench, fur
granting prohibitions against his court : and
upon ibis occasion the Judges nere called be-
fore the king, where ihej stoutly justified their "
proceedings in those cases to be according to
' iw, and from whence they could not depart
y virtue of their oatlis. About iheiiextTerm,
ne feoffees in trust for the buying in of impro-
priations to be bestowed upon preachiag mi-
nisters,' were brought into the Etchequer for
breach of tbeir trust in not augmenting poorer
vicarages, but gi(ing arbitrary pensions to leo.
turers and disiSecled preachers ; their corpo-
ration was dissolved, and their fund and slock
adjudged to the king; of which we must take
some briber notice in our view of church af-
fairs. Nigh ihe same time, Huntley, a minister
in Kent before mentioned, having been cen-
sured and imprisoned, by the High ComminioD
Court, brought now his action of false impri-
sonment against the keeper Mr. Barker, and
torney General m^ived, that the action might
lay against the gaoler only, and by no means
against any of the persons in the High Com-
Tnission: but afier loog debate, tlie Court or-
dered that two of the commissioners shnuld an-
swer. The bishop of I.aud()n made the king sen-
sible, that the authority of his High Commission
Cuurtnould fall to nothing, if the Judges of it
must be now exposed to personal Bctiooa. Upon
wliich the king sent bis advocate. Dr. Ryvcs, la
die Ii3rd Chief Justice, requiring him to prO<
ceed no fartlier in that cause till tie had spolen
with his majesty. The Chief Justice answered,
' We receive the Message;' and then consulted
nith the Judges, and thi-y came lu this resolu-
tion, that ' they con ceivea such a message not to
' stand with their oaths, which commanded an
' indefiuile stay of a cause between party and
' party, that might stop the course of justice so
' long as ilie Ling would.' And they farther de-
clared the doctor to he no fit messenger, M
messages from the king to them being usually
by the lard keeper, or the attorney general,.ia
causes relating to the ad n lini strati uo of justice.
By the court's desire, the cliief justice acquaint-
ed the lord keeper and the bishop of I,ondan,
who both agreed that the message was mis*
taken, and that the king's mind was not to
command a stop, but to desire as nuch slow-
nesi as might stand with justice. After this,
up*n-the miportunity of the commissioners,
who would no longer act if thus exposed to
-' - ' ; the king assumed the
charged them with ' express Command, :
' they should uot put the commissioners to an-
' swer.' The Judges atoutiy replied, that they
could not, without broach of their oaths, per-
form that coumiand. Afterwards the matter
was handled at the council-table in presence
3S5] STATE TRIAI£, 4CHABLEtI. iC^t
«f the Judges ; where, after Isng henring, it
wu determined, ihac the Judgei luul done tbair
dulj, mad that the commiuioiierB ought to nn-
iwer. Towird the end of Trinin tern the
sickueti encrraiiiw in Sooth wark. Ho hart,
Stroud, and ValeatiDe, three of the !«te mem-
ben, uapriioDed in the Manhahea, lued to the
Judget of the Klng's-beocb to be removed to
the Gate-houiie, and were bj writ from the
court lo removed. But Mr. Seldes, being nt
the Nune time in theMarshalwa, had focgot or
omitted to make, the like a)>plicatioit lo the
King's-bcDch till the term was over, and tl>e
JudgM in the circuit : Aflcr which be sued to
the Lord-Treasurer for the like favour of re-
moval, and by warrant from his lordshifj was
Hccoidinglj iO removed. But in MicJiaelmas
term tfae Judges called on the marslial for iiis
prisoner Selden ; and he producing the treo-
•urer's warrant bj ibe kill's direction, theyde-
Clared such warrant to be illesal, and sent their
vrrit to reiuand the prisoner bnck again lo the
MarshalMa. lu the IClnry term foUowioK, the
attorney. itenemt exhibited [wo seteral iiitiirina-
tioDsa^inst sir Miles Hobart, kt. and William
. — Proetediigs agaiiat JDr. MoBuarmg, [SM
Stroud, esq. ; (who by writ from the Kitig's-
bench had been removed inmi the JUarthaisea
to the Gate-house) for escapes out ai prisoD, -
proving that Stroud Imd resided with a krei-tr
in hit own chambers at GrayVIuu ; and Ho-
bart had continued with a ke^>er at his lodg-
ings in Fleet-street. The jury returned their
verdict) severally Not Guihy : And the Judges
resolved, that tlic prison of the King's-bencfa is
not any local priiou confined to one place; but
that every plitce where any oersun is by autho-
rity of that court tcstraiiiea of his liberty, ii a
prison. These several caws, and tlie dcciuan
of ihetB) do abundantly prove, that the preseuC
set of Judges were no icrvile creatures of the
court; and that the king did not insist upon
their obsequious compluoca with him; Init
they gave their juilgmeiit* with treedom and
courage, and the king actfuieseed in their opi<
nion, though contrary to his own."
That the court of King's-bench can qontDit
to any prison, see Hex v. Hart and White,
in doni. proc. M.iy 180S, and the cases and
authorities cited in. that cue.
131. Proceedings against RogerManwasino, D.D. for preaching
and publishing two Sermons, maintaining Doctrines tending
to the Subversion of the Laws and Liberties of the Kingdom :
4 Charles L a.d. 1628. fl Rushw. Coll. 2 Cobb. Pari.
Hist. 388. Sir John Napier's MS.].
Dr. Roger Manwaring promoted the
3 Senni
It the king is not
< bound to,obscrve the taws of the reulm con-
' ceriiing the Subjects' Rights and liberties, but
• that his roynl will and command in imposing
' Loans and Taxes, without common
< in pariiament, dott oblige the anhji
' icience upon pain ot eternal damn^ion. Tbnt
' those who refused to pay this Loan, offended
' against the law of God, and the king's su-
*premeButboritv,and became guilty of impiety,
• disloyalty, and rebellion. And thut the au-
' tbority of parliameot is not necfssnry for the
■ roisingof Aids and Subsidies; and that the
' slow proceedings of inch great assemblies,
• were not fitted for the supply of the state's
• urgent uecessities, hut would rather produce
' sundry impediiueots to the jutt designs of
* Snndersou, in his Lire of Charles 1, says,
" That this Dr. Manwaring preached two bold
Sermons, one before the king, and Che other
■this parish church. In the fint he nsseitcd,
< That the king's royal command, imposing
'Taxes and Loans, without consent of pttrlin-
' Kient, did to far bind ilie conscience of the
' subjects of this kingdom that they could not
* refuse the payment without peril of damna-
■ tion.' The other was on this topic, ' That
* the autlwiity of parliiineat was not necessary
On the 33rd of June 1G39, Mr. Rouse, a
Member of the House of Commons, brooghl in
a Charge against Dr. Roger Manwariiig, wHch
some days after was seconded with a Deda-
" Mr. Speaker; I am to deliver from the
commillee a Charge ni^ninit Mr. Manwaring,
n preacher in divinity; but n man so crimtnoas,
chnt he bath tnrned his titles into accnsatiaiis ;
for the better tbey are, the worse is ha that
diahounun them. Here is a great Charge that
lies upon him, it is great in itself, and gresti
because, it hath many great Charges lu it;
' Serpens qui serpentem ilevorat fit oraco,' tui
Charge having digested many Cliorges into it,
becomes a Monster of Chains.
" The main and great one is this, a Pint »^
Practice to alter and subvert the frame sad
' for the raising Aids and Subsidies. ' This au-
thor adds, he well remembers whst tlie king
said when he was afterwards censured font;
' Ho that will preach more than he can pro»^
' let him suffer for it ; I give him no ihantsfor
' givini me my due." So that this being en-
tirely 3iB business of psiliamenC, be was left,
botli by the king and church, to their SeoWti^-
Kennet!.v».bothSennOiiiwere first preached
Davi'ds leSsVanddied atCMiBWthenjiop^
verty, 1C53.
. ,Goo;;lc •
m] STATE TRIALS, iCsAiLSsI. 162B.—M preaclang f-eo Senmmt. tfc. [SSS
bbric of ibii cKaCe and common we kith. Thn
a the greiK one, and it haCb othen in
gma ic aiore light. To this end,
"1, He labour to ipfiise into iJw conscienca
ef hii najesty, the penuaiion of a Power not
bodadia; itself with lawj, which Lioi; James of,
funomoieaiorjiCBll), in liis Speecli lo |he par-
Inaeni, Tjrannj, jea rjrann}' accompanied
with perjiuy.
" i. He endeavoora to'persuade the consci-
uce of the Subjects, that the; are bound to
•bej coonnaods illegal ; yen, he d»mns them
for not obeying tiMiD.
" 3, He rolw the Suhjecta of the Propriety of
i*«-ir Goods.
" 4. He brandi ihem diat will notloK this
piopnety with moit scnndalouii apeech, and
adioiu titles, to make them both hateful to
prince and people ; so to wt a division betneen
IW bead and (lie memben, aud between the
neaben tbeni selves.
" 5. To the same end, not much unlike to
Sua end his fellows, be teeks to blow ug Far-
ku>eDti,snd Par! iamentiir; powers,
" The fifth being duly tiewed, will appear to
be u maoy Charges, and tliey make up alF the
pcit and main CinirEe, a mischievous Plot to
>ltit sod subvert the mioie and government of
Ilia Male and commonwealth.
"And now, though jou may besure, ChaiMr.
Uanwaring leaves us no propriety in our goods,
fct he hath BD ' absc4ute propriety iu this
Charge; hear himself making up his oi
Clwrge. [Here be read several paisa^ out _.
be Bout, and theo proceeded and said ;] You
tare heard his Chaise made up by his own
"Ordi, and withnl I doubt not but you seem to
hnr Che voice of that wicked one, 'quid da-
'biti*?' What will you give me, and I will be-
tny this state, kingdom, and commonwealth ?
■'Bui ^lere are two ob»wvations { [ might
idd a third, which ii like unto ' a three-fold
'oinl, which canliot easily be broken)'
dnw theChajvemore violently open him.
"llw first IS of the lime when this Doctrine
^ datruciiou was set forth ; it was preached
ID the heart of the Loan, and it wo* printed in
■bebtgioQing of that Terra which ended in a
liniiuitar : so that you might guess [here might
be i double plot, by the law nnd conscience, to
>n on Ere the frame and estate uf this com-
BOn-wealth ; and one of these enteijed fbies
*u Mr. Manwaring. — Another note may be
nkta of ihe time, that is, the unsensonabteiwu
'>riti.fi>rtlii9 Doctrine of the Loan (incase of
leceiuty) tvas the year after an assent in par-
iisnieni to four Subsidies and three Fifteens,
■bich'might wrVG for a auflicient Stoppje fnr
<^ doctor's moulh, to keep in his doctrine of
MCCJsilj.
" A seconil observation may be of the means
^ which be seeks to drsiroy this common-
'I'alib; bis means are Divimty, yea, by his
Divinity be would destroy both king and king-
" The bingf fir there cap be fio grater
BiNlHef ID a prince, tbui to put the opioion of
deity into his ears ; for if from his ears itshould
have pasted to his heuic, it had been mortal :
you know huiv Herod perished. Now this
man gives a participation of divine omnipo-
tence to kings ; and though a part mny seem
to qualify, yet all doth seem ngain to fill up
that qualiScstion, nnd very dangerously, it' we
renieinlier that God sjLih uf himself, ' lam^a ,
' jealous God.'
" He goes about to destroy the-kingdtrai and
commonweslih by his divinity ; but do we 6nd
in Scripture such a destrnyinc divinitvf Surely
I find there, that 'God is a Godaf o'rder, and
' not uf contusion:' and that ' the Son of God
* came to save, end not lo destniy.' By which
it seems he hath not his divinity n-om God, nor
from the Son of God : and that we mny be
sure he weat to hell for divioiiy, be names
sundry Jesuits and friers, with whom he con-
sulted and traded for hii ditinity. But not to
bely hell itself, the Jesuits are honeECer than
he ; for if he had not broufibt more hell unto
them than he found with tliem, he bad not
found this divinity in them which he hath
brought forth ; yea, in his quotations he hath
used those shifts and felshoods, for which boy*.
be whipt in schools, aud yet by ibetn be
thinks tocEu'ry the cause of akingdom.
But, for a conclusion, to eive the true
character of this man, whom f never saw, I
will shew it yoD by one wham I know to be
contrary to him : Samuel we know all to be a
true prophet; now we rend of Samuel, that
' he tv^it the lew of the kingdom in a Book, and
' laid it up before the Lord.' And ihii he did,
as one of Mr. Manwaring's own sutbots
affirms, that the kink may kuow what to com-
mand, and the peopFe wluit to obey ; but Mr.
Manwaring fiodiog the kw of this kingdoot
written in Boobs, tears it iu pieces, nnd that in
(he presence of the Lord, in a pulpit, that llie
king may not knnw what to command, nor the
people what to obey. ^
" Thus Mr. Manwaring being cK>ntrary to ti
true prophet, must needs be a false one, anil
the judgment of a false prophet belongs to him.
I have shewed you an evil tree, that bringetli
forth evil fruit; and now it rests with you to
determine, whether Ihe fbUowing Sentence
shall follow, ■ Cut it down, and cast it into
'thefiro.'"
Jnne 4. The commons proceeded with a
Declaration against Dr. Manwaring; wliicb
was the same day presented to the lords.at a
Cnnference between the committees of both
houses ; ond Mr. Pym was appointed by the
Commons to manage that Conference. — The
J>cclaration wis as follows :
The DECi-iiiiTioN of the Commons gainst
Ri^er Manwaring, Clerk, D. D.
For the more eSectuai prevention of the
apparent luin and destruction of this kingdoni|^
which must necessarily ensue, if the good ana
fundamental laws and customs, therein esta-
blished, should be brought into contempt and
vblnied; and tbatTorm ofgovemineiitueiieb]'
K>;lc
109] STATE TRIALS, 4 Chablu L ICZS.--
titered, by which it bath been «o long main-
' tuiiied in peace and happineu ; and to the ho-
nuur of our soTerrign lord the king, and for the
preservaiinn of bis crown and dignitj,'lbe u»n-
iBons in tliii gitesent (Mrliainent attenibled, do,
bjr tliii their liill, s'lew and riecUre agalnat Ro-
ger Manwaring, dtrk, D. D. thai wliereas, by
Uit la»» and iinlutci of thU realm, the tree
liibjccts of Engliind do unduulitedlv inlierit thii
ri^ht and liben;, not tu be csmpelled to cun-
tfibuce an; tai, tallage, or aid, or to make any
loans, not let or imposed, by common comen',
by act of parliament : and wliereai dii-ers of liia
mnjetiy'i loving subjects, reJ viii^ upon the said _
laue and Customs, did, in all faumllity, refuse'
to lend such sums of money, without auiho-
lity of parliament, a* were lately required of
" Nevertheless he the laid Roger Menwariu);.
in cDiitempC, and contrary to ibe InWs of tliis
Malm, hath lately preacbed in bii majesty'i
presence, two sereral Sermous, that it to say,
lho4lh day of Jnly lactone of tbe saidStrmons,
Mid upon the 99ib day of tbe seme month the
ether of the said Sermons; bothwhichSermom
bo hath since published in print in a Boi^ in-
liluled, Rell|lbn and Allegiance ; and with a
viclied and malicious intention, ta sedoca and
niisgaide the cuascience of the king's most ci-
celliMit majesty, toudiin^ tbe observation of the
laws and eustomt of ihii kin(Ham, and of tbe
t4;htl and liberties of tbe lubiecb, to incense
his royal displeasure aaiBinst the good snbjecis
ss refusing, to scandalise, suhTert, and im-
peach tbe good laws and goTernment of this
realm, and the authority of the high court of
parliament, to alienate liif royal heart from hia
people, and to cause jenlousy, sedition, and din-
uon in the kingdom. He tbe said (toger Man-
waring doth in rbc anid Sermons and Book per~
luade the king's most etccllent majeity,
1. " That bis uiHJesty is not bound to keep
and observe the good laws and customs of thu
■valdi, ronceminn tbe r^ht* and lihertie* of
tbe subjects aforementinned : And tliat' his
toyal mil and command in imposing loans,
taxes, iind other aids upon liia people, without
common cODMat in parliament, doth so far
bind the consciences of tlie subjects of tUis
kinsdnm, that they pannut refuse tbe saoM
without peri) of eternal dommttlon.
a. " That those of his majesty'i loring nb-
jecta which refine the Iniin afore nw a tinned, in
aucb manner as ie belbre cited, did ibereia of-
fend against the Ian of God, against bis ma-
jesty's sujireme authority, nnd by lo doing be-
came guilty of in)pieiy, disloyally, rebellion,
and disobedience, and liable to many other
taxes and censures, ithicb lie in the several
parts of Us hook doth must fklielj andmalicv-
ously lay upon tliem.
3. " That autbority of pniiiament
necessary for the raising of aids and hI ,
that ihe slow proceedmgg of snch Msemblie*
are not fit for tbe supply of the vrgent necesai-
tirs of the slate, but raiber apt to prodoce
HtndEy iuipedaneuts, t» thb just deii
■Pnatdingi agamtt Dr: lUamearvLg, [S40
of displc**
princes, and to ^ve tbem oi
sure and discontent.
" Allurhich-tlie commons are ready lo proic,
not only by tbe general scope of tbe same Ser-
mons Hod Buak, hut likewite by several clautee,
assertions, and seiitei|ces ttierein contaiued;
and that he tlie said Koger MsDwariug, by
preaching and publisliing the Sermons Bud
-B<.ok iif.ireinentioiied,did most unlawfuUy abut*
his holy function, mitituted by God in hia '
church tor the guiding of the caniciences of ail
bis sercanta, aud clnefly of suverei^ prince*
and magistrates, and for the maioienance ot
lilt peace and concord, betwixt all meo, cspe-
cislly betwixt the king niiii his people, aad haih
tliereby most grievou^y oSeiioed against tbe
crown and dignity of bis majesty, and ncaiott
the prosperity and good government of this
stale and commQiiRealth. And'ihe said com-
mons, by protestation saving to tliemselves tb«
liberty of exhibiting at any time hereafter, oia
nny other occasion uf impeachment against th*
■Hid Roger Mnnwaring, and also ofreplyii^ to
the Aniivfrs which be the said Roger shall maka.
unto any of ibe matters contained in ihil pre-
s«it Bill iif Complaint, aod uf oSering further
proof uf tbe premises, or any of them, as tbe
cause, according lo the course of parliament,
shall require, do pray, that the laidKoger Man-
waring may be put to answer to ail and every
the premises; and tliat such proceeding, ex-
amijiaiion, trial, judgnMnt, and exemplary po-
nisbnieat, may be thereupon bad and eieeuted^
Bl is agreeabla to law and justice.
Mr. P^'i Speech at the delirery of i he Charge
agnioll Dr. Man waring.
Tbia Declaration, ingroascd in pan^iioeiit,
being read, Mr. Pym addressed himself to tb«
" That lie slioald speak to this cause with
more confidence, because he law nothing ant
of himself that might discourage him- If be
consider the matter, the offences were of ait-
high nature, of easy proof; if he considered
their lordships, who n ere the judges of their
own interest, their own honour, the eaampLe
of their ancesion, tbe care of theii posterity,
would all be adrocaten with him in thia canse
on the behalf of the comtaoo. wealth ; if he
considered tbe king our sovercigii (the pretence
of nbiise, lernce and prerogative might per-
chance be' sought unto aa a defence nnd shelter
for this ddin^oentj he coiiM not but remember
that part of hismajeiiy'* Answer to ihePctition
of Right of both bouses, that he held bimseU'
bound in conscience to preaerre those libertiei,
which this man would persondehim to impeach:
he said further, That he could not hut re-
member hit majesty's love to piety and justice,
manifested upon all occiuioas; and he knew
love to be the root and spring of all other pnSiN^
sians and affections. . A man therefiire hates,
because iie sees somewhat in that which be
bates contrary tq thni wlijch he loves; a raaa
therefore is angry because be scqi tomewliat in
that w herewith he i* angry, that (^vti impede-.
„Gocm;Ic
c:
Ml] STATE TIUALS, iCnARLuI. ia2B.~M pnaefoMg coo Scmom, fye. [S49
■tnt Biiil intemplion to the nccornplisliment " The m
«r (Iwt which be Iotm.— II t>iu be mi, by ttie
HiDe«ctiaf his apprefaeDiian, by vtliich lie be-
Ittet hit maj««C]i'> lure to piety andjuitice, lie
■Mt neacb beliaie bis hate >iid ddesttition of
lla man, irbo weot about to withdraw bim
froa the exercite of barb.
" Ibea be proceeded to that which, he mid,
<na die xaak eujoiiied liim,- to make i^ood every
dioM of that nhich had been nod unto them:
AA Chat be might the mure clearly prrforra,
baprDpoDiMled to observe tJinl order of parti,
nio which tfae laid declaraiion wni nalurally
Awlied. 1. Of rhe Preamble, a. The budy
aftbcLhu^e. 3. Ihe Cooclusioii, or prayer
•f the cvnifDOii*. Tlie Preamble consisted al-
■qrather of recitid; firat, of the iiiducemeDtl
■poo which the conimoos undertwiic this com-
piiiat. The Mcond of ihose Uws 'and iiber-
lii^a^init which the oSenoe was coniDitCed.
1W thiid, of thi nolalion of tUose lawt wLich
bt( nlsiion 10 that uftenoe.
" From tfanconnexioaofali those recitals, he
(■id, tiiera did rewilt three positions, which he
*ss to maintain as the ground-work aiid foutid-
■tiDo of the whole cause.
" The 6rat, That ibe form of Kovernment in
■y lUte could not be altered withaut apparent
danger of ruin to ihat lUle. The cecoud, ihe
law uf Eoghuid, wlienhy the rahject 4>us ei-
Biptect fruiu Taxes, and Loans, not grnnCed by
<nmmon conaeni of pariiiment, was not intro-
^■eed by any statute, at by any charter or
awoion of jpiinces, bat was the ancient and
Antdameotal law, isiuing from the first frame
■ad ninuitutioo of the kingdum. The third,
tku this Liberty of the Snbject is not only moM
annoient and prafit^le for the people, but
WMt hononrsbie, most neceiiury for tl»o king ;
yMia that point of supply for which it was
eodeaionred to be broken. _ .
" The fonB of go*emmEnt is that which doth
•ctuate aud dispose every pan and member of
• itate to the common gixxl; end as thoiu:
f^Fttlire ttreugtb and cimamenC-lo the wbule,
*> Ih^ receive from it'iigain strength and pro-
tection in thair seieral itatioas and decree:. If
■Us laatntl rriation and iiiUrcoune be broken,
tba whole" frame will quickly be tlissolied, and
|>U in pieces, and instead of this conc^ird and
UcrchaDge of support, whilst one part seeks
tonphqid the old form of goremment, and the
4ther part to introdnce a new, they will misera-
Uy couMiiM and devour one another. Hiiio-
hts ue full of the calamiliai of whole Rates
lodMtioDs in such case*. It is true, that time
*•■•( needs bring sueoa aluratioas, nod tvery
■Iteration i* a step and degree towsrdi u diff-
■olutioD; Osott ihiiiKS only are eternal «hich
■■a canscaBt and uniform : therefDre it it oh-
Hrredbythe best writers upon this subject, that
^■DaecoauDoit'wealthsknve.been most durable
ud perpetual, which have oikea re&riBed aad
WWpused ibcBuelTes according to tlieir first
■"■tihxiea mti ordinance ) for by tbi* saewu
'*^ repair the breaches, and cowitcrwork the
*«Hrj.a>d oataral ■&£» ^f tin*.
ind question is as manifeU, thero
plain Ibntsleps of thote laws in tbe gOTern-
ment of the Saxoni, cliey weie of tint vigor aud
force, n loover-live the Conquest, nay, to give
bounds nod limns to I lie Conqueror, nhose vic-
tory gave liim lirst hope; but the assurance tind
pottesslon of the crown he oblnined by coinpo-
Bition, in wliich he. bound himself to obseive
these, and the olbtr ancient lawi and libertie*
of the kingdom, nhich afierwardi lie likeKJiM
confirmed by uiiili at his curonalioii : fnim. him
the said ubiigatioD descended tu his succrssork.
It is true, they have besn often broken, tliey
hove l>een often iMiifirined by charters of kings,
by acts of parliaments; but ilie petiuons of the
kubjecis, upon which t huge ^charters nnd acts
were tbuuded, were ever pelilioDS of right) de>
isnndini; ifaeir aniieiit aud due liberties, not
suing fur any Dew.
" To clear the third Position (he snid) may
seem to some nien more a paradox, That thas«
Liberties of the Subject nbuuld he so iionnura.
blr, so profitable for the king, aud most necei>
sary fbr ihe aupply of his majesty. Ithath beets
' ' i>ccabion declared, that if tlios*
tnken away, ttiert: should remain
no more iiiduttry, no more justice, no more
courage : who wiJl contend, wbu will endanger
himself for that which ii not hii oiiii i
". But, lie said, he would not insist upon any
of those points, nor yet upon ntlieis vary imr
ponaut; heuiid, thut if iliose jibertiei were ta-
ken away, tliere would reintiin no means for the
subjects, by any act nf Buiiiity nr Beiieroleiice^
to ingratiate thimselves to tlieir loveteign, —
And he desired tlieir lordshiul to remember
what profitable prerogatives tTie laws liad ap-
pointed for the support of aoyerei^uty ; as
n'nrdsbips, treasures- trove, felons gondi, Gne^
amercements, and other issuesof courts; IV recks,
escheats, and many more, too long to be enu-
merated ; which fur the most part are now by
charten and grants of several princes dispersed
into the hands of private persons; aud that
besides tlie undent demesnes of the crown d
England, William ilie Conquerordid annex, for
the better maintenance of his estate, great pro-
portioiu of those lands, which were cua6$c*le
from those Euiliih which persisted to withstand
him ; and of these, very few remain at this day
in the king's possession : And that since that
time, thererenue of the crown had been lup-
plied and au^ented by attiindera, and other
casualties, in the age of our fathers, by tlie di»<
solution of monasteries and ciiantries neaf a
third part of the whole land being come iota
the kind's possession, Ue remembered further,
thst constant and profitable grant of the sub-
jects in the act of tannage and poundage. And
all these, he said, were so alienated, anticipated,
ovN-chfiri^ed with eiinuitiea *nd asiigmnentt,
tbut no means were left for the pressing and
important occuiou of this time, but the volua-
Ea^ and tree gift .uf the aulyects iu pariinment,
" The hearts pf the people, and their bountf
in parUeBient, it the only constant treasure bdo
mwDc »f th« crown, which caiuwt bs H*^ ""
A43i
STATE TRIALS, 4 Cbables I. 1028.
Ipated, or otherwiie charged
cd, nlleaftUH, ant
and inciimbn-ed.'
In his eiiirance into the second pure, he pro-
pounded Lhese steps, bj vrhicb he meant to
proceed.
I. " To shew the state of the cnase, » it
id both in the Ctiarge and in the Proof,
their lordihipi ' - ■ ' ■
tben both toEeih<
doctor had provided for his own defence.
3. " To observe those circumstances of »g-
K.THlion, which miglit properl]! be annexed to
Charge.
4, " TopropoundsomePrecedentsoffiirroer
limea, wherein, though be could not match the
offence now in question (tor ho thought the like
before had never been committed) JM be should
Croduce such as iliould eufficieniJj deduce,
ow forward oar ancestors would have been in
the prosecution and condemning of such of-
fances, if tliey had been then committed.
" The Offence was preicribed iu ■ double
junnnar ; Fitsf, b; the general scope and inten-
tion, Bod bj the matter and particulars of the
fact, whereby that inieniion wu eipressed.
1. His itleimit ta miij^ide iind seduce the
conscience ol the Ling. S. To inccusc iiia
rojal displeasure against hii subjtcts. 3, To
scandalize, impeacli, and subvert the good laws
and gorenunent of the Llngdom, and autboritf
ofparhamentt. 4. To avert his majesty's mind
from calling of pariiaoienis. 5. To alienate
his rojol heart from his people. 6. To cause
jealousies, sedition, and division in the king-
dom. Of these particulars (he said) be would
forbear to speak further, till he should come to
tboae partti of the fact, to which thej were
most properlj to be applied.
" The macerialsoflhe Charge were contrived
into three distinct Articles ; the hnl of these
comprehended two clauses.
1. " That his majesty is not bound to keep
and observe the good Inns and customs of the
realm, concernyig the R«ht and Liberfj of the
Subject to be exempted l?om all Loans, Taxes,
and other Aids hiid upon them, without com-
mon consent' in parliament.
" That bit msjesij's will and command in
impasiag any Charges upon his subjects with-
out *uch consent, doth so far hind them in their
coitsciences, that xhtj canoot refuse the same
without peril ofetemal damnation,
" Two kinds of Proof were produced upon
this Article. The first was from some asser-
tions of the doctor's, concerning the power of
The next kind o/ proof
•nd determinations upon die partieulur
tbe late Loan, which bj necessity and parity of
reason, were likewise applicable to all cases of
ike like aature.- And leit by (ntilty of memory
—Proceedaigi agahut Dr. Mamrarmg, [5M
he might mistiJte the worda, or invert tlie sense, '
he desired leave to resort to his paper, wherein
the places were carefully extracted out of the
book itself Aud then be read each particular
clause by itself, pointing to the page for proof,
which we here forbear to mention, tetenring
tbe reader In the boot itself
" Then he proceeded and said, That from
this evidence of the fact doth issue a dear evi-
dence of his wicked intention to mi^itle and
seduce the king's conscience, touching the ob-
servation of the laws and liberties nf the king-
dom, to scandalize and impeat^ tbe good laws
and government of the realm, and tbe authority
□f parliaments, which are two of those chanie-
tera of malice which he formerly notfd, and now
inforced tHui: If to give the king ill counsel,
in some uue particular action, hath heretofore
been heavily punished in this high court ; bow
much more beinoi|s must it iiced& be thonght
by ill counsel to pervert and seduce his ma-
jesty's conscience, which is the sovereign prin-
ciple, of all moral actioni, frooi which Utey are
to receive warrant ibr their direction befon
they be acted, and judgment for their reforma-
tion afterwards ! If tcaiidaliiia mngiKtita,
slander and inbmy cist upon great lords and
officers of the kingdom, haie been always moat
severely censured; how. much mure tender
□ugbt we to be of tfaat slander and infamy which
is here cast upon the laws and government,
from whence is derived all the honourand reve-
rence due to those great lords and magistrates?
" AH men (and so the greatest and highest
magistrates) are sabject to passions and parti-
alities, wliereby they may be transported into
over-hard injurious crosses; which coniidcta-
tions may sometimes excuse, though oever jus-
tify, tbe railing and evil speeches of men, nho
have been so provoked; it being a true mie,
that whatsoever gives strength and inlbrcement
ti> the temptation in any sin, dqth neceisarily
imply an abatement and diminution of Kuilc io
thm sin. But to slander and disgrace the laws
and government, is withont ponihility of any
such excuse, it being a simple act of a_ malig-
nant will, not induced nor excuted by any obi-
ward provocation : tbe laws carrfing an equal
and constant respect to all, oiuht to be reve-
renced equally by all. — And thus be deriied
the proofs and infoKements, upon the first Ar-
ticle of the Chaise.
" The second Article he said contained three
clauses. 1. That these refusers had offendtd
against the law of God, S. Against the su-
preme authority. 3. By so doing, nere becmne
guilty of impiety, didoyalty, rebellion, disobe-
dience, and liable to many other taxrs.
" For proof of all these (he aaid) be needed
no other evidence Ihan what might be easily
drawn frtim liiose places which be bad read al-
ready; for what impiety can be greater, than
to contemn the law of God, and to prefer hu-
man laws before it? What greater disloyal^,
rebellion, and disobedience, than to deprot su-
preme authority, to tie the bands and cUp ^
wings of sovere^ D princei i yet be dtsittd ibev
MS} STATE TRIAI^, 4 Cbablei I. laSi.— for prtatkmg tiva Sermoru, l{c. [S46
Jotdsbip* pabence in hearing tome few other
plaon, wbereia the stahil and taint, which the
doctor cadeBTOunul to la; upon the refuser),
might Bppmir h; the odiouanew of their coiU'
pahsong, in ithich be dolh labour to rank than.
" Tbe firal comparisoD ii with Popish Recu-
lants; yet he mak^a ^m the wont of the two,
and for the better reseoihlance, givei them a
Dew name of Temporal lUcuaauU. For tbi» be-
olled^th the lit Sermon, p. 31, S2,aDd part of
the fifth (xinsideration, b? which he. would per-
totde them to yield to this loan. i
" ' Fifthly, If they would coDuder what ad-
' vantage this their recutaacy in tempurals,
* i;rvr« to the common adversary, who for diK-
' hediCDce in spirituals, have bitberlo alone ia-
' berited that name, for that which we oureehes
'oMideinii in ihem for m doing, and profess to
* hate thfit religion which leacheth Ihem bo to
* do; that is, to refuse sahjeclion unto princes
* ie apiritniil) ; the same, if not worM, some of
' oor aide now (if ours they be) dare to practise.
" * We must needi be argued of less coiisci-
' CDce, and more ingrnlitude, both to God and
' tbe king, if in terapornt thinp we obey not ;
' ibajin spirituals dniy subjection, wherein they
' maj periiaps frame unto (liemsetves some rea-
■ son* of probability, that llie offence is Dot »a
' heinous, if we in temporal shall be ab refrac-
' loTT, what colour of reason can we posiibly
■ £ad to make our defeoce withal, without tbe
' utter shaming of ourselves, and lajiing a slain
' which canoot easily be waslied oiiC, upon that
■ rel^on which bis majesty doth so graciouily
' maiDtain, and ourselves profess ?'
" The Kcond comparison is with Turks and
Jews, in ibe id Sermon, p. 47. What a Paradox
», &c. What a Turk will do for a Cliristian,
and a ChristiBn for a Turk, ami a Jew for boili,
tee, the same and much less Chriitian men
(bould deny to a Christian king.
" The. thud comparison is with Corah, Do-
than ami Abiram, Thcudas and Judaa, which is
bdiCDOut of the Sd Sermon, p. i9, where he
Uboura to deprive those refusers of all merit
in tbe suffenop fur ibis reuse. — Corah, Da-
than and Abiram,- whom for their murmuringe
God soddenlji sunk into hell-fire, might as wdl
alltdge their anfferinp bad some resemhlaDce
with that of tbe three children in the Babylo-
nian fiimace; and Thcudas and Jadai, the two
bceoiliaries of the people, in the days of Ce-
nt's tribut*, might as well pretend their cause
lo he like tbe Maccabee*.
"Tboi be ended the second Article of iha
Chaise, upon which, he said, were imprinted
other two of these sii character* of malice, foi^
merljr vented : that is, a wicked intention to
increase hit mBJesty's diapjeasure against bis
good subjects so refusing, and to alienate his
beart from the rest of his people: both which
wete poiats so odious, that he needed not to
add any further inforcement or illustralion.
"The third Article con ained three Clauses.
" 1. lliat Butborily of parliament is not ne-
'cessary far the raising of Aids and Subsidies.
— 3, Thai ^c jilew procwediugs of lucb as-
semblies, are not lit to supply the urgent neces-
sity of tlie state. — 3. That parliaments are apt
to produce sundry impediments to the just de-
signs of princes, and give them occMiau of dis-
pleasure and discouteiit.
" For proof of all which he alledged two
places, containing tlie two first of those lii con-
siderations, wliicb are propounded by the doc-
tor, to induce the refusers to yield to the Loan,
ui the first Sermon, p. 36, 21.
"' First, iftliey would please to consider, that
' though sucli assemblies as are the highest and
' greatest rcpresenlatiiHisofa kingdom, he most
' sacred and honourable, and aecessary also to
' those ands tu which tliey were at first iustU
ted; yet know we muH, tliaC ordained they
lothis
any right t(
' kings, whereby to cballeuge tributary al
' subsidiary helps; but fur the more equal iio-
' pusltiE, and mure easy exacting of that which
' unto kings doth appertain by iiaturat aud uri-
' giiial Ipw and justice, as tlicir pioper inheri-
' tance annexed to iheir imperial crowns from
'.their birth. And therefore if by a magistrate
' that is supreme, if upon necessityp extreme and
' urgent, gucb subsiaiary helps be required, a
' proportion being held respectively lo the abi-
' tity uf the persons charged, and tlie sum and
' quantity so required lunnountnottoo rematk-
* ably the use andcharjie for which it was levied,
' very hard would it he for any man in the
' world, that should not accordingly satisfy such
' demands, to defend liis conscience from that
' heavy prejudice of resisting tbe ordinance of
'God, and receiving to himself dam d alio n ;
' though erery of thuse circumBtances be not
'observed, which bj tlie municipal law is re-
" ' Secondly, if ihey would consider the ita-
' portunlties that often uiay be urgent, and
' pressing necastaries of sL-kte, tliat cnunot stay
* without certain and apparent danger, fur the
' motion and revalulion of so grept and vast a
■ body as such assemblies are, nor yetablde their
' long and pausing deliberation when tliey are
' usscmbled, nor slaud upon the answering of
' those jealous aud over-wary csuliDns and ob-
' jectious made hy some, who, wedded oier-
' much to the lure of epideiaicul and popular
' errors, and bent lo Lross the most juat and
f lawful designs of their wise and gracious sore-
■ reign ; and that under the plausible shews of
' singular liberty and freedum, which, if tlicir
' cuiiscience might speak, would appear nothing
' more ifaau the satisfying either of private hu-
' mours, pasaioDB, or purposes.'
" He said, he needed not draw any ari^o-
ineut^ or conclusions from these places; the
substance of the Charge appeared sufficiently
in the words themselves ; and U> this 3d Article
he fixed two other of these six characters of
malice, that it is his wicked intention to avert
hb majesty's mind from causing of porliumentg,
and to cause jealousies, seditious, and divisions
in the kingdom'; which he shortly enforced
thus ; if partiamCuC) be taken away, mischie&
and duordetsjnutt nted* abound, wicbout any
847] STATE TRIALS, 4 Charlm L IOCS lyoaidii^ tgaimt Dr. ]^tmmrag, [S»
poaiibilitT'Of pyod l>wa to reform them ; grie*-
•nc«s itill dajjj increase, without opportunities
or meHiis lo redress then; and what readier
waj GKii tK«« be to diuractioni Letwixt the
king and people, lo Uimulis and diiiemperv in
the stale, theo this >
" And BO he concluded tbi* third Article of
tbe Chaise.
" The limiTations wKerpbir ihe doctor had
provided to justiTj (or at Ua''t to excuse) him-
' lelt^ were propounded lo be thre«. 1. 'IbRt he
did not attribute to the king an; such absolute
power ai foiglit be exercised at all times, or
npoD h1! occa&ions, according to his own plea-
sure, but anij upon iircetiit;^ ; extreme and
tirgerit. S. 'Ihat the turn required muit be
proportionable to the ability of the party and
to the use and occasion. 3. That he did not
saj, that ihe subsisnce of the municipal or n»-
lional laws might ha omitted or neglected, but
the circuinsiBiices only.
" Til these were ottered three Answen, the
first general, the other two particular. The
ELeml Ansvtr was ihit. That it is nil one (o
ve the power absolute, and to leare thejodg-
~~ it arbitrary, when to execute tliatp*wer;
13 left ta the king alone to determine,
what is an urgent and pressing necessity, what
is a just pouortion, biith in respect nf the
ability, and ol the use and occasioo : and what
•hall be said to be a circuinstnnce, and what of
the substance of the law; and ilie subject is
left without remedy: the legal bounds being
taken away, no pnvaie person shall be allowed
to oppose his own pnriicular opinion in an;
of these poinU to the king's resolution ; so that
all these limitations, thonich specious in ^ew,
are in offect fruitless and vain.
" The lirst particular Answer applied to that
* limitation of urgent necessity, was taken from
the case of Nunoandy, as it appears in the
Commentariei of Guifme Jereraie, opon the
customary laws of that dachy : they having
been oppressed wilhsotne'grievances, contrary
.tn this frnnchise, made their coraplninc to Lei«is
tlie (enth, which by his charter, in the year
1914, acknawledging the rieht and custom of
die country, and that they had been anjustly
grieved, ditj grant and provide, that from
thcRM-forwara thej should t>e free from all
sobsidiei and exactions to be imposed by him
and bis inecessnrs; yet with this cWse, ' si ne-
' cessitie grand ne le requiret :' which small ei-
ception bath devoured all tliese immunitiesi
for though these states meet eiery year, yet
they have little or no power left, but to agree to
such levies, as the king will please to make
upon them.
" The second particular answer ajtpUed to the
limitation and diminution of this power, which
may be pretended to be made by this word,
circumstances,, as if be diil acknowledge the
king to' be bound to the substance of the law,
antT free only in regard of the manner j whereas
tiaments, aod ossent uf the people, such con-
tribution, which it die very si^stance of the
right and liberty now in qnestion.
" The Circumstances of A^raratioa ob-
served to be annexed to this cause, were thesv.
The first from the place where these sennons
were preached ; the court, the kioi^s own b-
mily, where such doctrine was befbre so wril
believed, ihui no mim needed to be conveited.
Of this there cauld be no end, but either umo-
niacal, by flattery and soothing to make war
fsr bis own pret^ment, or else extreme mali-
cious, to add new afflictions to ihoaa wbo by
under his majesty's wrath, disgraced and im-
prisoned, and to enlarge the wound which bad
been given to the laws and liberties of the
" The second was from the oonlideraliaB of
tiis holy function: be is a preacher of God^
word; and yet he had endenvouredto make that
which was [he only ruleofjustica and goodaess, ■
to be the warrant for violence and oppreasitio.
He is a messenger of peace, but be lad endea-
voured to sow strife and dissension, not only
amongst private penons, but even betwixt the
king and bis people, to the distuibance and
danger of the whole state : he is a spiritosl
fntber, but like tliat evil bther ia the go^l,
he hath given his children stones instead of
bread ; instead of flesh he hath given then
scorpions. Laitly, be is a minister of the
church of England, but he bath acted the pan
of a Roniiih Jesuit ; they labour our destruaioil,
hy dissolving the oath of allegiance taken by
the people; be dotli the same work, by diwil*'-
ing the oath of protection and justice taken by
the king.
" Athird point ofaggravationwasdrawnfnMi
the quality or these authors, upon wboie au-
thority he doih principally rely, being for the
most part Irian aiid Jesuits, and from fail fraad
and shifting in citing those authors to purpmcs
quite different from thnrowH meaningi.
" Touchini; wtiich it was performed, that laeit
of hii places are such as were intended by the
autbnrs ciRceniing absotiita mnnnrchjes, not re-
gulated by lau i or con tracts bet« txt the king sni
ms people ; and ia answer tA all auihoritie) of
this kind, were alledg;d eertain paaM^es of a
Speech from our lare govereign king Janea, ra
the lords and commons in parliament, 1009.
" la these nur times we are to diatiDguith he-
twixt the slate of kiags in their first original,
and between die stnta of settled kings and ne-
nirchi that d>> at this time govern lo dvil king-
doms, &c.
" Every jast king in a satded kiii«|om, is
bound lo obsene the paciioii made to bis peo-
ple by his laws, in naming his gnvcisniMt
agreeable tliereunto, &c.
" All tings that are not tyrants or peijuied,
will be gUd to bimnd thenisel«ei withm ib«
limits at their laws; and they that P*no^
thera to the contrary are vipers and pwtS) both
againstlhem and tbecommoakealdi.
» It was secondly observed, that in the «
page of his iist 8ennw, he cites tb«M viwm,
U9] STATETRIALS. ♦ Charim 1. l«28.-/of pwodn^' ftw Semoni, ^c.. £3W
Swirei de IqUiat, lib. 5, cap. IT. Acctptati- I neccnitj, aid; vid if the subjects did not
•aoeai popuU noa cms coaditionem ' ' ' ' - ' - - '
' nun ex vt juris nacuralis nut ^Dtii
* The Jesuit addi,
'a antiquo Jure HispaniK;' which wonU are
left out by tlie doctor, lest the reader might be
iniitedto iimuire what was' antiquum jus His-
'purE;'anditiiughihsvebeeii learned from the
upe author in noothcr place of Uiat nork, that
■bmit t"D hundred years since, this lihertj was
pulled to' the people h; one of the kin^, that
Mt tribute shuulS be imposed without (heir cod-
MDL And the author adds further, thut after
lis lu introduced and conGnned bji cutlom,
tbe king is bound to observe iL From this
pUce be took occasion to make this short di-
gnsiiuii, That the kbgs of Spain being pow-
ofiil aud vri»e princes, would never have phrted
■itii wch a mark of absolute royalty, if they
hid not bund in this courw more tidvaniage
thin in the otfaer, and the success and prospe-
rii* of'tlmt kiogdoiD, through the valour and
iodustry of the Spanish nation, lo much advati-
ttd uiice that iftne, do manifeit the wisdom of
" The third observation of fraud, in perrerl-
in; his authors, wm ihisj In the twentieth page
of [he first Sermon, be cites these words out of
tlie same Suarsi, de legibos, lib. 5. c. ]5. &1.
900. ' Tribuca eau maxime naluraJia, et prs
'k ferre juMitiam, quie eiiguntnr de reW
'pnpiiis*;' this ha prodiicetfa in proof of the
jnt right of kincB to lay tribtites. And no man
ihKieads it doubts, buttbakin Sun rez's opinion,
ie kinc's intenit and propriety in the goods of
hiisnl^Kts, is the ground of (hat justice; but
the truth is, that Suarci in that chapter had
disributed tribuiea into diters kinds, of which
kcidl«oae«art,'Tributumrta]e,' nod describes
ittfads, ' Solent ita Tocari pensiones qucdam
'<piB pendontDF regibus at pnndpibus eiierii
'*t agris, qnse k principid ad sostcntalionem
'ilbs spplicmta fueiunt, ipsi vero in feodum in
' iliii ea donarunt sob (^erta pensione annua,
'qnsjurecivili CBnoaapprilan soiet, quia cer-
' U regnia et le^* prsschpta eret ;'' so that the
Btoeiii, this, which Suarci aSmiarorJustifica-
bua of DUc kind of tribute, which is Co more
than a fee-fann of rent due by reservatioD ia
tbe^nuit uf rhe king's own lands, the Dr. here-
in, "otse than a Jesuit, doth wrest to the justi-
Wion of all kinds of tribute exacted by
oapMitioa upon ihe goods of the suljects,
"berein the king had no interest or propriety
4. "The last aggravation was drwrn from
lus behaviour sisce these Sermons preached,
"iHreby be did continna still to mnltiply and
mcrcase hii t^oce, yea, even since the aittinf
of the parliament, and his beine questioned in
FwliBment; upon tba 4th of Hay lest be was
u bold, BE to pobjisb the same doctrine in his
evn parisb.^urch «f St. Giles; (be points of
■bicb Scrmnns are these:
" That the king bad right to order aU,
bin ibould warn goo^^rithout arty inan'i
>*t- Tliat tbaiangAi|lit rsquire, Ja ti
.... - . ■"■?•
I ply, the king might justly avenge it. That the
I, neque I propriety of estates and gotids was ordinarily
the subjfci; but eitraordinarily, thHt is, ii
case of (be king's oead, the king hath right t«
dispose tbera. '
" These assertion) in that Sermon, he said,
'Ould be proved by verr good testimony, aDil
therelbn: desired'the lords Uiat it might be care-
fully ezuained, because the cummons held it to
ba a great contempt to the pariiameut for hitn
to mamtein that so publicly, which was here
qocstioaed.
" They held it a great presumption (or a pri-
vate divine to debate the right and power of th*
king, which is a matter of such a nature, M
to be handled only in this high conrr, and ^at
with mtoderation and tenderness. — And so li«
concluded t)iat point of aggravatiun.
" III the lait place, lie prodused some sncb '
precedents as m^ht lestifr what the opinion of
our ancestors woold have been, if this case bad
fallen out in their lime ; and l>crein, he said
would confine himself to the reigns of the
first three Edwards, tivo of then princes of
great glory : He besan with the Meit, Westm.
- - 33.
By this statute, 3 Gd. 1, provision was
e against those wlio should tell any false
s or device, by which any discord or scandal
arise bttirizt the king, his people, and great
of the kingilinn.
97 £dw. 3, KoL Pari. n. 90. It was de-
clared by the king's proclamation, sent into all
the counties of England, Thut thev that reported
that- he would nut ot>serva the Great Charter,
were maticioiis peoplej who ilesired to put
trouble and debate betwiitthekiiig and his sub-
jects, and to disturb the peace and good estate
of the king, the people, and the realm.
" 5 Edw. 9. Inter novas ordinationrs, Henry
de Beamond, for givii^ the king ill couosel
against his oatli, was put from the council, and
restrained from cooling into .the 'presence of tbe
king, under pain of coafiscfttlon and banishment.
" 1? Edw. e. Clause Minidors.- Commission*
were gmnted lo inquiie upon the statute of W,
1. touching ibe spreading of news, whereby dis*
card and scandal might grow betwiit the king
and his people.
" 10 Edw. Ckuie M. SG. rroclamatlon
.went out to arrest nil them who had presumed
to report, that the kin^ sroald tny upon the
wtnb certain sums, besides the ancient uid doe
cusiosni, where tiia king calls the«e reports,
' Eiqtlisita mcndacia, Stc. quK non tantum ia .
' publicnn Itssioitem, sed in nostruoi ccdunt'
* damnum, et dedecus manifestum.'
" 13£d».?.Rot.AlmaniE. Thekrngwrite*
to the archbishop of Canterburyreictising biu-
self fi>r some impositions whicli be bad laid, pro-
fessing his great sorrow for it, deairpi the arch-
bidiop by iwlulf;ences and other ways to stir up
hoping that God
itisfnctor^ benefit
iufort bis tulject* for
851] STATE TRIALS, 4 Charlbi I. lezS^Proeeedingi agaiiui Dr. Mmtnamg. [352,
" To tli«H (empDral precedents of ancient
tKuca which were (Ulet^cd, he ndded an eccle-
siastical precedent out uf a book called Papilli
Otuli.beinB published for the ' ' "---
Manila Cliarl* are ia««rteH with this direclion,
* Um arliculos ignorare non debent j]uibu) iti-
' cumbit caniessJones audire infru proTiuciaai
' CHJituarienseiti.'
" lie likewise remembered the proclaroatioD
8 Jac. for the callirie in sod burning of doctor
Cowel's book, for winch thcw reasons are given,
F^r mistaking the true ttate of the pnrlinment of
the kingdom, niid fundamental constitution and
privileges thereof; for speakitig irreverently of
Che common h(w, it being a thing utterly unlaw-
ful tor any subject to speak or write a^lnit that
law under whicli he liveth, and which we are
sworn and resolve to maintain.
" From these precedenig h« collected, that if
former parliaments were so careful of false ru-
■nour; and news, tbey would have been much
more tender of such doctrines as these, which
■night produce true occasions of discord betwixt
(he king and big people.
" If those who reported the king would lay
impositions, and break his laws, wera thought
such heinous offenders, haw much more should
the man he condemned, who persuaded the king
he is not bound lo keep those laws } If that
gr^at king vtii so far from challenging any right
ill this kind, that he professed his own garrow
and repentance for grieving his subjecls with
unlawful charges: If confessors were enjomed
, to frame the consdiences of the people to the
observances of these Inws, certainly such doc-
trine, and such a preacher as this, would have
been held most itmnge, and abomiaahle in all
•' The third general part was the conclusion
or -prayer of the commons, which consisted of
three clauses. 1. They reserved to themielTes
liberty of any otiier accusation, and for this, be
said, there was creat reason, that as the doctor
muliiplisd his offences, so they may renew tlieir
accQsations. 2. Thvy save to thenuelve* liberty
of replyio)! to his Answer, for they had great
cauee to think that he who would shift so much
in otTendine, would shift much tnore in answer-
ing, S. They deiire he might be brought to
examination and judgment ; this they thought
would be very important for the com^rt of the
ptesentage, mr the security of the future againgt
such wicked and malicious practices^ and so lie
concluded, chit seeitij; the cause had streneth
enough to maintain itsielf, his humble suit to
theirlordshipa was, Tl>ai they would not observe
his infirmiliet and defects, to the diminution or
pr^udice of that strength."
June 0. The Lord Keeper having reported
the Declaratio'i before mentioned, and tiie wib-
startce of Mr. Pym's Sptech on the delivery of
it, the lords ordered, llint the said Mnnwarin^
should be takeu into custody, and bruURliI to
answer the Charje exhibited against him.
June -10. The lords examined sererKl wit-
nesses in Dr. Manwaring's cause.
June 11th. Roger Manwaring, doctor in
divinity, being this day brought tu the bar, the
Declaration uf ttic commons against him was
read. Then'Mr. Serjeant Crew and Mr. At*
toniey-Geuerul did charge him with the ofiences
concnined in the snid Declaration : and opened
the Proofs of the g^id Olfences out of ihe seve-
ral places ofhislwoSfrmons, which lie preached
before the king in July last. And tliey did fur-
ther charge the Eaid.Ko[er for preaching a third
Sermon the 4th of May bst, sitting the parlia-
ment, in his own parish church of St. Giles in the
Fields ; wherein he delivered three Articles to
this effect, viz. 1, " That In matters of Sup-
plies, in cases of necessity, tlia king had right to
order al), as seemed good to him, without con-
sent of tus people. 3. That the king might re-
quire Loans of his people, and avenge on sucU
at should deny. 3. That the subject halb pro-
perty of Ids goods in ordiiinry ; but, in eitraor-
dinaries, liie propertjr wns in the king." — And
they chafed the said Manwnrlng with great
presumption, to dispute (he right of the king
and hberty of the subject, and the right of tha
parliaments, in bis ordinary Sermons.
The Charae being ended, the I»nl>Kceper
demanded of Dr. Uanwaring, Whether he did
acknowledge the 3 tenets to be preached bj
him in his Sermons 4tli of May : this lie abso-
lutely denied. Whereupon the Clerk read
the Examinalion of H. Clayton, esq, and sir D.
Norton, knt. who had affirmed some pnrti there- .
of upon their oalhs. Then Dr. Manwaring be-
ing admitted lo speak for himself, protested be-
fore God, upon his- salvation, " That be never
had soy meaning to persuade the king to alter
the fundamental laws of the kingdom i his onl^
ends were to do his majesty service; and to
persuade a. supply in cases of extreme neces-
sity; he dssired favour and justice to eiplaia
himself; and, hecnuie his book consists of raaity-
conclusions, that tbe spiritual lords m^it be
judges of the injierences and logical deductions
therein." He further humbly besought their
lordships to allow iiim counsel lo speak for liim,
in pointofla^r; time to answer the particulars ;
a copy of the Charga in writing ; and recoorsa
to hie books at home, upon caution to attend
again, when their lordships shall appoint.
The
after
his requests, brought to the bar
again, 'the Lord-Keeper, by direction of tlie
houM, blamed him for that ha divided hi*
judges i by requiring a part of bis Char«e
against bim lo be referred to tbe lords tbo
hisbnpg ; whereas (be vibole matter belongs to
all tbe lords jointly. — Then his lordship told
him. That tbe house hod considered of his other
requests, and granted him these, viz. 1. To
have a copy of hi* Charge. S. To have time
till Friday morning to make his Answer. S.
To have teaie to go lo hit own house, and to
abide there with a keeper. And his lordship
further told bim, That if, upon recollecting him-
US] CTATB TKlAt£, 4 Gkarlu I. 1
JoDC It. A Meisa);e from the
•irEdw.Coks iiul others.
TheSnd pert of which MesMge wB«concorn-
ii^ Dr. Mnnwnrmg's Book ; They said the;
lixincl his oiBJesiys cummand SEt upon the £rK
[Bi, to wBrrant the printing of that booli ; but
tbat this they fasd caus^ to inapect, becuuse,
lk>ii|h they foDiid those wordi nnick out in the
w^asl, they still stood in the priated book.
Aid, u ibey conceive the printer dunt not do
itvilhout warrant, they iherefuie desired their
lonUiips to examiae by what mesni this special
coDunind ira* derired, frDm Ilis majesty lo the
priuHr? And when their lordihipg hare fnund
the psrty, or parties, who gave tbe warrant,
Ik cooinioDs danand Co bave bim or tbem
Cishei), with as much seierily or more, ai
iwiriag himself. — Aiuw. " The lords do,
mtuimously, agree. That his majesty's said
Hett^ for tbe entcrtog, enrolling, and print-
ii|of tbe said I'atitioD and Answer, shall be
catered here, aiii desired: and, ascoocerniug
ik eiamioatioD nbo f/ae the warrant fur
pnDiiogofDr. Manwaring's Boult, their Inrd-
ibipi will take it into consideration; and do
tbu therein, nhich shall be fit."
Hie lame day, upon another Messnge of the
anunwi* to tlie apptr house, it was ordered by
< tlieir Imdsbips, That Rd. Badger, n lio printed
Dr. MiDwaring's Book, be presently brought
btfore tbeir lordships ; who, being brought to
tbt bar, uvorn and examined, answered. That
Dr. Maawaring, himself, delirared bin his two
Snnwastobe printed, nith tbe bishop ofLon-
don'i signifitmioti 10 (bat eArct, under liia
knbhip'* baud ; and tluu wheu the houk was
fxlljr printed. Dr. Maowaring brought ihe title
eflus said book, written witli his onn band, as
it is uDw printed. Hereupon the said piiiiler
nidiimisied at this time; and the eurl of Et-
idtnd tlie bishop of Lincntn were sent, frmn
tbe house, lo tbe bithop of London, to uiider-
•tuid,frain bis lordibip, nhnt unihority be had
filttignirying his majestt's specinl cominand fur
[k piiBting of Dr. Manwanng's Book.
lane 13. Dr. Manwarlng being (his dny
brooghl to tbe bar before tbe turds, and iid-
Diittni to spenk for himiclf unto [he Charge of
■lie commons against him, nnswered in effect
aiAiUonetli; "First, he shewed that be was
tKder a great hnrthen of sorrow and weakness
kre to present liimself unto ibeir lordships :
and then rendered them bumble thanks, fur
(iting htm leave and time to recollect himself
befoie he made hit Answer : end craved a
'■TOuntfale interpretation of what ha wat now
to speak. As touching hit two Senrmiucora-
pluned of by the comtnnns, he satil, ' Tliat he
*n induced lo preach tlieni by a public renion-
ttranee of the nijcessities of the stale at that
, 1 those two Sermous, ; . .
Mty Ecriptarea, and in ttw isWi^rtten of the
vol. Ill, '
ia.—Jbrprtadihgiwq Strmom,li«. {SM
■criptDTCs, and are not coiopluned of by the
commons, but the iiifereDces on1y,idrawn from
thoae grounds, are questioned by them. He
cnvcd leaie to explain himself in t«o of ihoM
positions : The first where he says, ' That kinu
partake of omnipotence with God,' he taid,
that he meant no more by this than is meant
by tbe holy scriptures, and by the laws of the
taod; for iLe Psalms wy, 'Diiestis'; and Mr. '
Calfin tailh, ' B^es a Deo imperiuni habere,
' et divinam potestaiem in regibus residere/ '
wherefore to oSend against kings he thought it
sacrilege; and, by the laws of the kingdom,*
great imuge of God is ia the king. The other
position, which h? desired to explain, i</»
touching the king's justice ; where heia^s, io
his second Sermon, p. 8j. ' That justice mter-
cedes not between God and man, nor betweeik .
the prince, being a jslber, and the people, a*
children;' he sail), 'That be meant thereby, ihat
as mao cannot requite God, nor the child tha
father; so the king, being dispenser of God's
power, cannot be requited ; but his meanintr
was not, that the king ihould not have luws.' —
And touching those inferences, made by the
com'ninni ont of his tiro Sermons complained
oF, which they impute either to scdillen or
malice, or to the itettrojing nf the municipal
laws of the lend, or slighting of parliaments, be
proiesled, before God and his Iwly angels, that
thej were never in hU thoughts. He only
thought to persuade ihoM honounible g«ntl^
men, who refused to conform themselvea, ID
yield a supply unto the present and imminent
necessities of the ilate, And, in the condusion
of hi) speech, he expressed tiis great sorrow to
be thus accused : and begged paidon antl
mercy of tbeir lordships, and of th^ eommoni,
even fur God'ssake; Air the king's sake, nhoqt
they BO much lionutired; tor religion's sake;
and for bis calling's sake ; humbly beseeching
ihcm lo accept of this satrtoiaaion."
This being spoken by Dr. Mnnwaring, and
lie willed to withdraw ; the lord archbishop of
Canterbury, (Dr. George Abbot) called to him
to stay ; and having desired leave of the house
chat he might say somewhat unto him, which
was granted ; his grace then told him, * Tlitt
be miehc have made some better use of the
great iavour which they did bim, in gjving hiiH
time to recollect himself before 'his Answer :
but he saw in bin) (as St, Bernard sitith) ' That
i ird t
taiurendi .'' and that be was sorrv to hear bi
an Answer to the accusation of the commons :'
bat, God be thanked, tbe kinjc had now wiped
away what was intended by his two Sermon^ i
which Sermons, hit grace said, he both misllk-
cd and nbfaorred, and wns sorry that be cnma
only lo eitenuate his fhult. Toudlinglhc paK
liripation, which Dr, Manwaring gave the king
with God, his grace told him, 'llait it was very
blasphemy ; and ibat those worils in [be PBalml,
Dii aiiif do warrant no such matters' and
Cnucbing bis otlier assertion, that there is no
justice but between equals, and not betnem
God md man; tbe parrni Bod ba cbQdrea;
■J *.
85j>] STATE TRIALS, IChabu^I. \<yJS.-^PntetdiKgt tgaau Dr. Maiiuarii^,[Kt
nor b«Cwpeii th« king Rod his peeple ; fait inca
told Ilia, ' It nas iiapioui and blae ; nnd tliat
be tind tliereti; drawn an inOiiiiy apon ut and
our religion ; and bad niven mi occaaion to tlie
Jeeuiu to (rnduce u* :' and ibewed him, ' Ttiat
the iciiptiires do plainly declare and prove a
justice fmrn Gnd to man, from a ptu«nt to bis
children, and from a king to l)i< people :' and
funher, * Tbatf hy the Una Df God and mna,
there tyai ever ■ co in nun itive Justice betwemi
the king and his p«nple, for matter of coin;,
and aduiributiTc jubtice for Kovecnineiit.' Then
patting him in mind of Annxnrchus the philo-
•opher, whom the king of Cyprus caused li> be
brayed in a brazen mortar for' hi* bast flattery
(as a just reward for all flatterers of pHncei) he
blamed him much fur citing of Suim, and
other Jesuila in bi< sermons : and niLled him ts
read the Fathers, tlie sniienC tnterpreten of the
(Cripturcs."
The Archbishop haTiag ended his grare ad-
monirtop, Dr. Manwarint^ made a ihort reply
tuuehing bis said two n>stiti<ms : «nd said,
' That ha druied Dot justice and law to be be-
tween king and iieople ; but afliimed that the
king's justice ixtuld not be requited : nnd ex-
ctued himself for citing ofSoarM, for in those
places hespake for tb»king.'
The pmooer being withdrawn, the lords con-
sidered of their censure against bim; and. their'
lordihips thought him worthy of severe punish-
nent^^lor attributing unto the king n participa-
tion of God'i omnipotence, and an absolute
|>owcr of goTcrnmeut; tbrbisscandalousasser-
tioas against pnrUaments ; and fur branding
those gentlemen, who refused the late Loans,
with damnntion ; but, for tfrat be so deeply
Crotestedthat he had-noialeutioa to seduce the
ing'g conscience ; nor loaowscditioa between
his mnjeity and hit people ; nor to incense bis
.HHyesiy against parljBineDli; nor to obrogale
the municipal. laws,, as was objected b^ the
<ommong ; nud in re^^ard that the king luinself
had protejted (as was aSinned by some iords of
the priiy-conncil) that be understood him not
ui thtit sense ; and for that hit mnjesty's gra-
cious Answer anto the PetitioD of Rif^ht exhi-
bited this parliament, hath removed those jea-
lousies, w'hich otherwise the subjects miglit
justly hnve feared, by the assertions in those
Sermons : and also for ihat lie, tlie said Dr.
Mannaring, hod shewed himself very penitent
and sorry fur the same : their lordihips agreed
of a milder Sentfncc against him than otlicr-
wise they would. — This Sentence, being first
argued by parts, was afterwards read and ai-
sented unto by the general and uuanimuut vote.
of the whole hon<e.
June 14. A MeessE* waa sent to the com-
mons, ' TEiat the lords were ready to proceed
to Judgment against Dr Mannanng ; if tlici,
with their Speaker, will come to demuHd tfie
tame." Jnni. 'They will coma, presently."
The lords being in their rubes, X}t. Manvraring
wns brought to the bur by the Serjeant at arms;
andtherommoDSwith their Speaker being come,
Ur. Speaker sa'd : — " My loidt ; the kni|[hts,
'cilizeDS, and burgesses, of the tomatoet bouw
of pnrliameDt, have impeached beftwc yooi
InrdVhips Koger Manwaring, tlerk, doctor in
divinity, of divers enormous crimes ; for which
your lordships have convened him before jou,
iiih) examined the said offet]^^ : and now,
ilie commons have commanded me, their
Speaker, to demand Judgment against hloi for
The JvimHEaT a^init Dr. MttDwarin|.
Tncn the Lord Keeper pronounced Ihl
Judgment against him in these words, ni.
" Whereas Roger Manwaring, doctor in di-
vinity, hath been impeached by the house of
■ ' misdemeanon of a high natnrc,
print, in a Book intitnlcd, ' Religion and Alle-
*■ giance ;' and in a third Scmipn preached in
the pnrish church of St. GHcs in the Fields, the
4ih of May last ; and tbcir lordships bi»e con-
sidered of the said E>r. Msnwuring'i Aifmer
thereunto, exprrssed with .tears and ^rieflbr
bis offrnce, most humbly craving pardon there-
fore of the lords and commons : yet neverlhe-
liss, for that this can be no satisfaction fijr the
preat offences wherewith he is charged bj llie
said declaration, which do evidently appexr in
the very words of the sard two Sermons, their
lordships have proceeded to judgment ■(pnnst
him; and tlierefore this high court dochsd-
jndge,— 1. That Roger Manwaring, doctor in
diviniry, shall be imprisoned during the plm-
Bure of the bouse. 3. That be shall be Goed ni
l.OOOi. to the king, 3. Thai he shalt make
buch submission and acknowledgmeal of hisot
fences, as shall be set down by a committee in
writing, both here at the bar, and in the hoaa*
of commons. 4. That he shall be suspended
for the term of tlure years, from the «erci»n|
of the ministry ; and in the mean time a saS-
cient preaching minister riiall be provided mt
of the profits of liis living to serve the cure:
this luspenaion, and this ptt)viatoo ofBpttaco-
ing minisicr, shall be done by the ecclesiasicil
jurisdiction. 5. That be shall be ditrfiledftr
ever to prencb at the court hereafter. 6. Thsl
he shall be fur ever disabled to have any eccl^
siaadcai dignity or secular nfice. 7. That Ui«
Bind Dook is worthy to he buret! and that ^
the bptter effecting of this, bis majesty aay M
moved to graut a prDclamaliOn to call ■" tnl
said Books, tliat they mav be all burnt accocd-
ingly, in London, and in l>ntli the rniiversiOK:
and fi>r tha inhibiting the printing iherfol,
hereafter, upon a great penalty. A""! ""* "
the Judgment of the lords."
Then the commotis departed, and Dr. Mod-
wnriog was seut prisoner to the Fleet.-AfHf
this the biihop of Lincoln (Dr. jJohn Wiil«n»J
reported tho Answer of the bishop of London,
uiuo the Message sent him by the bou« "»
lathof June, to this effeiX vii- Thai tb« bishop
j of London (Dr. Geoige MountaJgne) aDSWM-
I ed, ' That he received « letter fromtbe biiMP
! of 6ath and WetU (Dr. W. Laud)*«*^ '
1S7) ETTATe TKULS, 4 CHAaui I.
mtt, for ihe printing anti publishing of Dr.
ii*awatai%'a two Semioii!i, bj liii muJeK^'s
comiDand : and thereupon bis lordihip did give
vaj fur tfaa printing tbereaf, wltbout farther
nuninationi aod caused theie words, ' I'ulj-
liibeJ by his Majescv's Special Coinmiind,' (o
be put (IB the front of the said boob ; that it
n^t appearto be printed bj bis uia^estj's du-
tharilj, and not hj bin lardaiiip'B approbntion.'
Heret^MD the said bisbnp of Batb and Wells,
beii^ present, taid, ' He could give no sudiieii
Amwcr aato tbis report ; but acknowledged
tbat he wrote the said letter onto the bisbop of
LoadOD, bj his msjesty's expre» command-
meat, that the said two Sermons iliould be
pnnted : which letter, he ^d, he wrote lust
toininer from Wooditock, wben his majesty
was tliere.' And t<ie earl of Montgomery
affirmed, upon bii honour, ' Tbnt he was clien
present at Woodstock, and heard his majesty
coBmisnd tba bisbop of Bath and Wellt lo
caue the *aid Book to be printed ; - and tliat
tbe said bishop deaired his majesty to, think.
belter of it, for there were many things therein
wlucii would be very distasteful to ilte people.'
—The duke of Bucks, also, and the earb of
SaSblk and Donet, protested, on tlidrhonaurs,
■ That they have since heard hi* nuyesty alfiriu
at nncb.'
Jane 16. The Hoom of Lords ordered to
be delivered to ibe kin^ by the Lord-Keeper
two Ueasagn, one agamst Dr. Muiwaring's
Books; desiring his majesty to put out hii Pro-
damatioD to call in the said Books, that they
Might ba all burnt in London and We^ iminster,
•od at both tbe univenities. Also to inhibit
the repiiotiiig »f them uilder sctere penal-
lies, JScc.
Jane 18. Tbe Lord Keeper repotted tbe bing'i
Answer to tbe two Uessages, concerning tnt
canccUing the commission of Excise, and about
Dr. Manwarin^s Books. AstoDr. Manwaring,
Ins majesty said, " That he was well pleated
ailli their request, and wotdd order the attor-
■eyfeiieral to prepare a proclamation accord-
ingly.''
Dr. Manwaring's Sjbmissioh.
Jane SI. Dr. Mpnwariag wnsbrougbt to the
W, in onler to read and subscribe the ToUow-
iog SubmJMkin, which a committee of lords bad
nwD np for that purpose : vii.
\6S».—^prtadttng tuc Sermon*, lie. [358 .
acknowledge the man^ errors and indiscretiona
culled ' Religion Mid Allegiance,' and my great
faiiltiu fidhngupciii this theme agiun, BJid hand-
ling the same raildj nnd uDndvbedly, in my
own parish church uf St. Giles'iii the Fields,
the 4th of May last past. I du fully acknow-
ledge thn>« 3 Sermons of mine. To have been
full of many daujieroas passages, inferences, and
scandalous aspersions in most pans of ihe siime:
and I du humbly acknowledia the justice of
this lioQourable house, in that Judgment and
Sentence passed npon me for my great olTence ;
and I do, I'rom the boitnm of my heart, crave
pardon ol' God, the king, and tiiis bunourabla
nouse, tlie chutcli. aud this cominonwe.-iltb in
general, and those norlby peisona adjudged tu
be reflected .upon by-me m porLicuiar, fur [hese
great errara and oR'eiices.
" UOOER Manwabikc."
After tliit, the Doctor was led into the bouse
of commons by the warden of the Fleet prison,
where he made the same Subuiiislon, on hii
knees, at their bar.*
* Doctor Manwaring's Sermons, intituled,
" Rdigion and Allegiance," were suppressed by
pn>clamation,thekiugdeclaring,thBiiboughthe
grounds thereof were rightly Uid to persuade
obedience from sulyects to their sovereign, and
ihatforconsdencesake; yetindivenpossnges,
inferences, aod applicatii/ns thereof, trenching
upon the laws of this land, and proceedings of
SarliBinentt, whereof he was iguoranl, ha so
IT erred, that he had drawn npon himself the
just censure aod sentence of the high court of
parliament, by whose judgment also that Book
standi condemned ; Wheretbte hcine desirou*
to remote occasions of scandal, he thought St
that those.Sermons, in regard of ilieir influence*
and applications, betotnlly suppressed.
Moreover bishop . Montague, and doctor '
Manwaring, prucured a royal Pardon of all
errors heretofore committed by them, either iu
speaking, writing, or printing, (or which they
might be lierealter questioned : And doctor
Manwaring, censured bj tbe lord) in parlin-
raent, and perpetually disabled fromfnture ec-
clesiastical ptetienncntB in tbe church of Eiig-
landj was immediately presented to the reotorj
of Stamfiird Rivers in Essex, and had adispen-
loflcther irilb tbe rectory of
„ Google
U9] STATE TRIALS, 4Ch«blbsI. j^^^'Oe Cax <f O^ Fine, fir WcrA [860
132. The Case of Hugh Pine, esq. upon an Accusation of Treason,
for Words spoken in-Contempt of the King: 4Charl£sI.
1628. [Croke, Car. J 17.]
In SerjenDts-Inu Hall, at ■ Meeliog of the other of the Jndgei being thea id town, met al
Twelve Judf[e>, viz. Scrjeauls-Inn, id FleeMtnet, where thej de*
Tie King'i'Btnck, — SiiKicholaiHTrie, knt.' bated the case >mon|iit tbemwiTa, in the pre-
Chief Justice i sir John Doderidge, knt. ; sir wnce of lir Robert Henth, the aiiorocjp-gene-
Wm. Jonei, knt.; lir James Whitlock, knt. rol; and diven precedentawere thenproduced.
The Case of Juliaaa Quick, (Ksnc). AiiDS
ficesima primo IIcnHci Sviti.
Juliana lilia Willie! mi Quick, ct till i febi-pro-
ditotei incogniti in ooculto machiiiantn mortem
regis, &c, pnedicta Julians ei assensu Williei-
nu, et alioruTH proditomm ^otorum, eidem
domino regi, at fuic iequitans in via adbesit, tt
dixit eidim domtno regi : ' (larrj oFWindsor,
' ride sohcrlj, thy hoise ma; stumble and break
' thj neck.' And when .ilic noble John Beau-
champ then tnid to her, ' To wliora sBcakett
' ihou?'' she answered, ' To that prouaboj in
' red, riding on bonetnck,' poiniing with her
band lo the said king. And iurthLY calKug out
to the said king, said, ' It .becometh thee bet*
' [cr to ride to thy imde, then that thy unde
■ should ride to thee; thou wilt kill liitn, at thoR
' hast killed thy mother: send to tbj aocle's
' wife, wliom thou keepest from him. Thoa
■ art a fuol, a known fool throughout the w-tiole
' kiocdoin of England.' She lind pain fort tt
rfurr because slie would not plead,*
ThuiDM KeTTer** Case, (Berkihire). Id- iba
twenty-first yenr of Hen. 6.
Thomai Kerver indiOUtDT, pro m <|iio<f ipee
proditone diiit verba sequentia, ' Wo« to iIm
< kingdom where a child is kiag.' Ec ilerum
dixit, ' It had been better fur the kingdom of
' England by an hundred thuusand pounds, if
' ihc said king had been dead twenty years be-
' fore.' Et iterum, ■ h had becD bmier fur the
' sai4 kingdom by an hundred thousand pounds,
' if the said king never had been horn. And,
< Ttiat the Dauphin of France was in Aquitaia
' and Gascoyn, with a great pewer.
7^ Coomeit Pffof.— Sir Tho. Richstdson,
km. Chief Jnstick; sir Richard Holton, knt.;
air Francis Harvey, knt. ; ur George Crake,
knt.; sir Heury Yclreiton, knt. Justices.
The Exchnuer.—Sif 3a. Walter, knt. Chief
Baron; sir EdwBrd Bromley, knt.; sir John
Denhaiu, knt. ; sir Geui^e VernoD, knt.; sir
Thomas Trevor, knt. B:irons.
William Collier, aitcutling Mr. Fine at bis
house in the country, wui demnnded of him,
Whetlier he had seen (he king at Iliaton, or no?
Collier answered, That lie had seen the king
tliere. Sit. Pine replied, "Then hnst thou
(een as nuwise n king as ever was, and so gO'
vemed ns never king was ; for he is carried as a
man would larry a child with an apple; there-
fore I aod dirers more did refuse tu do our
duties to him."
After which words spoken, William Collier,
meeting with Richurd Collier his brother, asked
bioi, " Whetberlbekiii^ werenot a wisekiiigi"
nho aniwrred, " Yes, be was a wise and teui-
pnaie king."
After which, at another time, Moniiear Se-
liia being u Mr. Pawlett's house, at Uinton,
Mr. Fine aiked .Collier ; whether the king was
there, or do I wbo answered, that he heard
bs was. Mr. Pine replied. That lie could have
had him at bis house, if be would, as wdl as
Mr. Pawlett.
At another time one Geor^ Moiiey, a lock-
tmitb, being at Mr. Pine's house, he asked hitn,
" What news i" wbereunto he answered, That
he heard the king was at Mr. Pawlett's nt Hin'
ton, Then Mr. I^nesaid, ■■ That is nothing;
for I mi^Lt have had him at my house, ns well
H Mr. Pawlett, for he is to be carried any whi-
ther." And then Mr. Pine said ajood, " Before
Ood, he is no more 6c to be king Chan Hick>
Wright.'' This Hickwrigbc was an old simple
fellow who wai tlien Mr. Pine's sliephcrd.
The^e words beine ihus proved by William
poUier and George Morley, all the judges were
commanded to Bssemlile [ bemseltet, to coD-
nder and resolve what offence the spelling of
those words were.
Whereupon sir Nicholas Hyde, chief justice
of the king's bench ; sir Thomas RichardsoD,
chief justice of the common pleas; sir John
Walter, chief baron of the exchequer ; sir Wil-
liam Jones, one of the justices of the king's
bench ; sir Henry Yelverton, one of the justices
of ibe cummon pleas; sir Thomas Trevor and
Gtof^c VcmoD, barons of the eicbe^uer, none
' coyn. And if tte said king were but of a
' much homanity as the Daophin, wbo it nf Ma
' age, the said king might qnlelly and ji«ac«ably
' hold and enjoy his said lands.' To this he
pleaded Not Guilty, luid was commilted to the
constable of the lower of London ; and after-
ward recommitted to Walliugford castle.—
Ideo nil ultra apparel.
John Clipsham't Case, (Suasei). In the twenty-
ninth year of Hen. 6.
Johannes CItpshnm mdictatur, pro eo quoit
348. And ill ficloiiy and piracy such obstinacy
amounts lo a conviction, by IS Geo. 3, c. SO.
See 3 Hawk. P. C. ch. 30, 8va. edit.
KIJ STATE TUIAJL^ 4Ciuhlei I. 103».— ^uim »-0»M^ tfthe Kf^. [3C3
r«t alii diienuC, quod domiiuu rex noD ' noa Ucct «piMopit dicCi re^ allun poiula-
(te potMUte, nac «cj«ntia, ad letnani An- ' tern, oac aCquun congregtitwiein populi tr^
f}lm gube maud urn, et quod iiolutruat idceriiu
ubedir« te^, nee gubernationi %iim, iafn idem
regDam; xnuaauteaqHe inler %t vena popuJos
dommj re^ de cooiJiaLu Ka/lciv, pro co quod
ipu noluerunt teiitt^e ipsum regem de jut-
titi* ton infra euDdem coniLtatum, ac limilitcr
Tlie Itfirfields* Case, (Stobki). In the tw^atj-
ninih Tear of Hen. 6.
JotMimes Miitiefd et Williehnui Mirfipid in-
ficMnnir, pro eo qtrad dhterunt,' ■ That the
' king was a natural fool, and irould often-
' dmes heii a staff in his Imod, with a bird oTer
' die etnl, plajing therewith as a fboi; and tbat
■■notber king must be ordained to rule the
*.l«>d ; HJ>ii& "I^t f^ kioi was not a perwD
* able to rule the land.' £c. uttenus dixerunt,
'That ibe cbarter tltat the king umde at the
' firtt iumrKctioD wai {iite ; and tliat he and
' bis rcltonsbip nould arise agaiu ; and when
' tlwy were up, tbej would not leave any gen-
■i Case, (Norfolk). In the thirtj-
first year of Htni. 6.
Willielmiis Bretenbain geoerosus indictatur,
pro proditoriLS verbis, vil. quod ' Ricliardus
'An Bmrum e«ra teiram Hibcmis infra
' qnindeceiD diet tunc proiime sequetites ve-
' oiret et cordnam dicti doniini regis de eodem
* rege aafenet, et illud miper caput ejufdecn
' dfcis infra fareri poni fiicerit.' — NntaLur in
naipile inActamenta sic, ttespas enormia, con-
tMipL et alia oCFence. Tamen in iudictamento
at ' prodltorie loquehatur, &c.'
WiJiMB A«b|oa's Case, (Suffolk). In the
thirt^-fiist year oif Hen. 6.
Willidnuis Ashton milea indictatur, pro eo
quod ipee et alii proditorie dirersas billas et
icripturaa in rjthinii et boUsdis facta* et tk-
bricMat, snpa ostia K fenestras divenorum
bontaam potucfuot, fedtaniei in eisdem,
quod domisM rex, per ceosiliun duels Sufinl-
ci«, nMCopi Sanim, episcop' CicestriK domi-
ni da Say, et aliOTuni de «oncilio domini regis
eiinent. veodidit TegDa Angliat et Ftancix ; et
qaod rei Francic, avunculus regis, reguarvt
soper dictaiii regetn, dicentes et scribientes hsc
oania et singula. Et similiter raiserunilitenu
gem, ad adjuiandnni ducem Ebonun, &u
gneiram levanduoi. Per indict uaentutn Suff.
laao 31 H. 6.
loha Ga^B Case, (Bsiei). In tba xbitty-
tomttb jt*r «f Bea. texti.
JofauDCsGaylc irabotaCar, pre eo qvofl ipse
;, <pMd ' dictui rex, et mmiM
ntD- dicti regis, apiul
im, per ipsoseftotam
. _. . n Kanci* peutiaiiat. &c invitis
'd«^ibMdicUrq;«*'h^>w*Toluct«^t;BHpiod
igregatwiiei . .
ad pcrturbandum de bonis propositis
' suis peiiiBpleHdis, osKmblarc, nee retlnere.
■ Qaodque preibjteri (otius Ao^m nulk bonk
' nee catalla, prater caibedrain et candela'
■ bnim, ad inspicieadum super libros luos ba-
' berent et pasaidefeot. Ac quod Johannes
' Jd ortimer, alias Cade, eitTiveos; et qiiod
' ipse esMt eoi^m capitalis capitaueus in om-
' uibus propotitit suis perimpjend. credentes,
'el dicentes, ([uod ipsi essent infra tres dies
' qinoque miJlia bominum annatoruin : et si-
Oliver Gerrnaine's Case, (Wiltshire), In the
second jfcar of Ed w, 4.
Oli»eros Germaine, tsjlor, et alii falsi pnv,
ditores, machinnDtcs et proponences quomodv
regem Edvardum, &c. destruere potuerunt - *
Henr
r.de f.
dfl
regem Anglii', ii
aulhoritale parliamenti reputaE. et approbat.
infra regnom Anglia;, extra regnnm ScoliiE re-
ducere, et regem EdTardnm deponere, &c.
mortem r^ compasser, tec. credentes et di-
centes inter se, in prophesiis, qt falsi hereticr,
quod dcnnicus Henricns, nuper rei, intra brere
esset corum rex in regno Anglic sicut prius, et.
coronam suam in eodetn regno'haberet et reti-
neret, diceotes ba:c omnia ea intentiune, quod
veri populi domim regis cor^ialem amorrm ex-
tmherent. ^Judgment, to be banged, drawn,
and qoarteteil.
William, Belmjn's Case, ' (Norfolk). Auno
nono Edvardi quarti.
WiUIelmus Belmyn, de Norwrico, mercer, in-
dictatur, quod cum Robcrtus de Rjdde^Jale, it
diuturno tempore proponens statum et diguita-
lem regis Edvardi quarti, i&c. adnihillare. Sec.
et ipsiiiD regem per guemun, &'c. de regali,
&;c. privare, &c. inter alias fabas prodiiiones,
&c. diverscis oiticulos prodjiorum, &c. fabri-
cavit, publicavit, et proclainatit. Et quod
prxdictus Willielmus quandain sceduinm tc-
norem pnedictorum articulorum
apud N. &LC, monstmvit et publici
dem aiticulos pro bonis aiticulis,
utilitate regni espcdientes affituiavit, et quam-
plures persunas ad ipso* attlculosntanuleueD-
dum et approbanduin excitavit. — Nuta, I^oo
dicitur proulcocic In eodem indie Csmento.
TbaCiae of rhomas Bnnht,<Wnrwick). AnnB
denimo septimo Edvardi quarti.
Juauores pnsMntant, quod Thomas Burdet,
mpBT de AlTOw, incnmitaluWarwici,aniiiger,
DeuiD pre oculis non tiabens, et Jebitom l^i-
anciM s«K mininie pondcraui, ex maiitia pra-
Gogitata, diabdica insti^tione seductns, viceti-
mo die Aprihs, anno regni regis Edrnrdi quar-
ti, pott cooqnestam decimo quarto, et per di-
versas vines postea, npud villain Wesnnonn*.
terii, im comitatu Middlesexiv, iaho et prodi-
tarie, ctuttia legiancite 3u» debiiura, mortea
,ei desDuctionein ipsius r^is iinaginavil cnm-
ptmu Adt et circaint, ac iptiun tegem falM
S6S] STATE TRIAi^/ 4 Chahles I. leiS^—'j'/itCaieqflS^kPmt.MWorit [964
falBum nshndam propoaitum suum finnliter
ct proditorie adtunc et ibidem iatarficere pro-
poiuit, et ad illud fabua nafaDdam propoiitDm
•aum perimplendum, falao et prodiCone labo-
rBTit et proctiravtt qaoidam Johaiinein Slacj,
nuper de Oionio, in comitatu Oiaii, genero-
■um, et Tfaomam Blake, ouper de OxOD, in
comkicu OioQ, dericum, apud TiUatn WesC-
mooaiterii pnedictam doadecimo die Norem-
brii [line proxime seqaeat. ad calculiuiduili nt
luboraadam de ct circa natiTitatem dicti da-
mini n^ii «t Edmrdi Ghi «ui primosenici, prin-
cipis Waltife, et de morte corundem domini re-
gis ac principii ad icieadiim qoando iidem rex
et Edv&rdus filius ejus monentur. Dictique
Johannes Sucj' et Thomas Blake, scienter illud
lakum et nelacidum prapoiitum pradicli Tho-
mf Burdet, ipsi Johannes Stacy et Thomas
BlaLe, dicto duodecimo die Noveoihris, apud
villam Westmonasterii prxdictam, falso et pro-
dicoiie mortem ipsorum regis et priiicipit imagi-
naveniDt et compani fiierunt, ac ipwt regem
Bc principem adtunc et ibidem inierlicerc pro-
poflierunL fit postea, sexto die Februaiii,
dirto anno decima quarto, apud villam >Wes[-
moOBSterii pnedictam, pisdicti Johannes Stacjr
«c Thomas Blake enrnn Talium et proditorium
Erapositum perimplendum, falso et proditorie
ibomTemnt et catcuUierunt per art«m magl-
cam, nietomanciam, et astrooonuam, in Ofor-
tem u niLalem destmctionem ipaonim r^ps ac
principis. Et postea, icilicet, viceeimo die
Mali, anno regni d'cti re^ decimo quioto,
Bpud villam Westmooaslerii pnedictani, pr«-
dicti Johannes Stacy et Thomas Blake, falso ct
proditorie artibu*pr»dictiilaboraverunt; licet
jiikta detenDinationem sacram sanctK ceclesia
ac doctrinam diveraorum doccorum, cnilibet li-
geo doniiiH r^is, de iniromittendo de repli
et priocipifaus, in fbrmft pTKdict&, absque
eorum Toloninte, et pniceptii inliibilam fiiik
£t postea, iidem Johannes Stacy et Thomas
Blue, ac pritdictus Thomas Bnrdet,^ apud
pradictaiD (illam WestmnnDSterii, vicMmio
«etto die Mnii, eodeto aono decimo qninto,
caidam Alexandro RusMton, et alii* depopulo
domini r^3, falao ei proditorie manife«taTe-
lunt et dixerunt, 'quod per calculationem el
' artcs pitedictu, per ipsos Jobannem Stacy at
' Thomam filak^^ in formft pnediclfL factas,
' iidem m et prmcepi non din virerent, led
' intra breve obterent i' ad Intentionem quod
per detectionpm et hujusmodi materia mani-
teatationem, popnli ipsiiu regis magis fttt ipso
iCgc«ordiaiem aBOnm letraherent; etiden
dominus rei per BotitJam illamin detectioaia
ct ■BnifcsiBiioDis, triitbiaii) tDde caperetct ab-
breviationnn vita earn. Ac quod ptadktDa
Tbonwi Burdet, - . .
•iut Ttjpt mpicm
domhu prindjui, ai
run per ^enais at
cem et ligeos sooa in npui pmlicio moTen-
anin, aisuo die Martii, anno regni dicti regis
decimo ttytiaa, apnd Hdbom, '~ —
Middlneuc, laiaa et proditoiie imaginavit,
cotnpatiMa fuit, et circuirir, ac ipaoiregem oe
^diKipem ioterficere propoMut. £i ad iUnd
pcrimplendoni, pnediaus Thomas Bordet di
vtnaa billas et scriptures in rythraii et balladia
de murmurationibus seditionibus et proditorii*
excitatiouibus, facta* et fabricatas apud.Hol-
born, et villam Westmonasterii prsdict. falu)
et proditorie dispersit, projccil, et seminavit
dicto sexto de Martii, ac quloto et aeito diebua
dicto anno decimo srptimo, od inteo-
m quod populi dooiiai regis cordialem
amorem ab ipso >ega retraberent ac ipsum re-
linqueient, ac erga ipsum reeem iusui^rent,
et guerram erga ipsum regem lerareul, id fina-
lem destructLoncm ipsorum regis ac domini
priocipis, et cantra ugeanciaiD ' suan, necnoD
contra cotuaam et digoitatenl ipsius regis. —
Judgment, to he hanged, drawb, and quartered,
TheCnae-of Jijjin Alkerter,(Kanc). AnBodft-
cimo octavo Edvardi quarti.
Johannes' Alkerter, yeonian, nupcr serviena
Richanli coinilis Warwici et Sarum, ik diutumo
tempore proponens statum regis pejorare et de
regimine, &c. quantam in se fuii proditorie ;
per diversa verba nefiitida, et alia djcta saa ve-
nenosa, de divwsi* murmurationibus seditioni-
bus proditorum excitationihus tactis et fabri-
catis, ft gabematione privare, &c. ad iotctw
tionem quod populi ejusdem regis cordialem
amorem rctEalierent, perdiscordiam inter regent
et populum suum moveodum, proditorie dixit
Wdlielmo Pend, Willielmo Fowle, et Sampsoni
Halk, ^b hoc fonna, *ii. quod Willielmua
Pend et Johannes Alkctter olim servientea
dicti Richaidi comitis Waivici fuerunt, et none
quod idem comes dion suum claniit ettre-
mum; et hoc non obstante infra bieve babe-
rent comitem Oxania (qui superttet est) inln
boo regnum Anglis, qui in futuro parcellau
hojuspatnn ^bernet; aSnnaodeqne olterius
Terba sua cmdam GoUHdo Peke, quod £d-
vardus quern voa vocatis I'^em Anglis lalso
fuit, &c. ; dicendo, quod idem Edvwdut per
subijtem artem suam tDodem comitem War-
wici interfedt et murdrmvit, ac fratrem suum,
nuper docem ClarenOK, ad mortam simili mo-
do traxit, non habeni causat ntc aliquani veri-
tatam; et dicendo, quod quictuque inbeiita-
bills sit directs post mortem 'oaturBlem Henrici
sexti (nnne de mcto, et non de jure, regis An-
gbai), ad connaiu An^i» ille taDtommodo *i-
neret et tnua bono esMt. Et multa alia hajn»-
modi verba proditoria tfiiit. — Utlagatui fiiit,
pKrat patet per rotul. witioa. Kane, anno 18
Thomas Herer iadictatur, pro eo quod pro-
ditorie diiit, * quod uttimnm parliameatoni d»-
' mini T^*-s, apud Wesnaonaaterhna tentum,
' magis simiplex et iotuGciens fuit quam un-
' quam antea.' Et ulterios, ' Quod doKintn
' rei proposuit tnoiam suam infra cofuitattmi
' Eaodssarahcre et amoiem ligeorum luonitat
' ibidem habere, quiaamorwa cordialem inln'
' eandem dvitatem non habuit,nec in Aituro
' bababit: ct qbodsi cpiicopai Bathoaianait'
tSi] STATE TEIAI^, 4 Cbaklis t. 1626.—«poken m CMimpt tf lite King. [3G6
tionibas, fylA et prodicari^ rrceniiit, scripse-
runt, ec fabiicaioruat, et iilss per ipsos tic
facta*, Bcriptai, et fabricabu, die,&c, super dt-
veisa oicia eccletia cathedralia Saticb Paali|
London, pioditorife poineniiit, ec public^ ibi<.
deiD £ierunt, ad movendiUQ et eiLcitanduD) ti-'
^s regis billax et scriptural itlu legentn et
intelligence 9, xornmoiionem et gntrrua ern
ipsum regem facere et ievare, contra ligekncus
'nwrieiur, quori tunc immediHte Ttiomis ap-
■dii^iscopus Canmarieuiii tt cnrdinalis Aii-
' (lis caput luum amitteret.' £t multa diier-
■inaxU Terba proditoria de rege quam alia
Ttrba malitiosa de dominis &uis, tain spirltuali-
1x19 ijuam temporatibua. — Utlngatus, prout pa-
tct per rotal. sessaois.
Hilar, an.
WiUieliniu Collingboum, nuper de Lydyard,
m comitatu Wiltt, anniaer, ec alii fulu prodi-
uret, mortem tffji^ et subjectianeiii regal pio-
diiorie ina^inaverunt et compasji fueranc : et
id illud periinpleiiduoi, eicitaverunt, BiC.
qoriidam Tbo. Yate ei ofTerendo ocCo libras ad
putes irantcnai'inBS eiire, ad loquendum ibi-
dtm cam Henrico nuncupftnte se comit. Itiah-
nsndic, et aliis, Ate. prodiiorie attinct. per
pvliuaentuni, &c. ad dicenduin, quod ipsi
cam omDi putestate, &c. reveairent in Angtinlu
tin fcMum Sancli Lncs CTangeliita, et totum
iatejnim redditnm totias regni Anglis, de ter-
MiaoSancU Michnelii, &c. in eorunt relers-
DCQ haberent. Et ulteriui, ad demonstran-
diin eis, quod per concilium ipiius VViltieltoi
CollinEbauni, »i dictui comes Riclimundiie, et
alii. &C. ad temun Angliie, npud Pooie, in co-
mitilu Durceatrtz, arrivarc voluerunt, ipse
Willielroui CoUingbouni et alii proditoret, eii
an'Kiaiido commotioneoi poputi ipiius regis,
Qumectionem et guerram eiga ipaum re^em
iitciJm terare cauiarent ; et parieni ipsonitn
Umrhd proditnrum contra regem in omniboi
Kcipeient; et omnia infra reguum Angliz ad
onun dispoaitiouem essent. Et ulcerins, ad
diceadaui et demiinitraudnm dictis proditorl-
bm, itii ad descinandum Johannem Chcynej
Mjue ad regetn FrancIiF, ad demoustrandnm
nbi, quud ambatsintoren euI in Angliani &
<&lo rege Frsncin Tcnientes defraudnri debe-
■nl; et qu6d rex Arglim nullum promisaum eis
flutodirec sed solumoiodo ad deponendum aeu
>d rapcctonndam pierram inter dominum re-
pm tempore hjemali. e(> quod in principio
t^inparit cativaliB AtigUca poteitn; in otnnibui
pvpareri poas^t ad 4icl!i)in dicco domino regi
Fruiciz pnebendum, eC eundein re^em et cer-
(in mam adtunc linaliter deitruendo. Et u!-
(niili ad advisendum ipsum regem Franciie et
■milium dictorum praditorum pecuniis,&c. ut
■PK iter T«gi« Angli« uique terram Francis
impedire proponct. Et sic pnedictus WillieC-
mat CDllin^bduro et alii fiierunt proditoria ad-
^wrectei, &c. Et t^atid prsdictus Wiltielniu)
Collingboum, et alii faUi prodliures, Deum
pnc oculii, &C. ik diutumo tempore inteadens
prr covinam aisenaum et ToluntaCcm diverso-
rani atioruin proditonim eitdem prodiloribns
"^ per guemuD, connmutionem, et discor-
diam mter rencm et llgeoa luos infra regnum
Ar^ix IcTandum, compatsi fuerunt, &c Et
ad illod periiDpUoiIum, pnedictiii Wdlielmns
CoUingbaurn, et alii, diversai billas et scripEu-
ntin rftlimii et balladis de murmurationibns,
Nditionibu^ et loquelis, et prodiurii* eiciu-
. t fin^lein dt
et »ub»er»ionem rt^ni, '&c. — Judgment, U
hanged, drawn, and quariercd.
Bagnairs C«sr, (London). Anno nooo Hen-
l^omas Bagnallet alii mortem regis imx)^'
naverant, &c. et ad intentionem 'prtedicCnm,
qubd populi i^a cordialem amorem retralic re,
&c. diversas billas et tcripiuras in rythmic et
ballad is de murmu ration ibus, scdilionibus, et
proditoriis eicitationibus, tnm versus regem
quilm alio* magnates de consilio soo tangent.
proditorife fecenint, &c. super ostium ecclesiic
sancti fienedicti in Gracious^treet, et super Ic
Scandaid in Cheap, ac super ostiom ecclcsia
Pauli posuerunt, &c. et quod ipsi foemnt nd-
bf rentes cuidam Petro Wnrbedt, inimicn rr^,
in partibus transmaniits existent, ad leraiidunt
goerram ad depanendum regem. — Judgment,
to be banged, drawn, atid qtuutered.
Stanley and ClifTonl'i Case, (Middl.}, Decim*
Ilenrici leptimi.
Willielmui Stanley, miles, et Kobertus Clif-
ford, miles, ad invicem inter se comraunicave.
nint et interlocnti fuerunt de quudam Petro
Warbcck de Tbomaco sab obedientift archi- .
duci* Austrio et Bnrgundin, iniroico donrini
regis, &C, Mit) nuncupante se fore Rlchardutn
secuudum filium domini Edranli noper r^is
Aiiglis quarti, in partibus eitenDnbos ultr*
mare existent, ac mortem, &c. regis, ac sabver-
MOnem regni Anglia?, proditorie conspiroie-
runt, &c. et eundem regem per gnerram, tec.
in regno Anjtte, ieiundum da coronit, &e. de-
ponendmi, &c. Et ad illud pehmplendum,
&c. pncdicti WilUelmus Stanley et Bobcctuf
CliEFord prodicorife, &c. inter se aggreati fue-
runt, quOd ipse KobErtoa ad porta eiteraa
pranlictas nd pricfatum Fetrnni Warbeck, &c
transfretsret, et in ipsius Petri adTentum ad
j-uerram levanduni eipeclnret ; et ipsum P^
Irum in regnum Anelia cum toto posie suo io~
troduceret, ipsum in regem erigeiet, &c. Et
ulceriils dictus Willieimos Stanley prafato Ro-
becto-CliObrd proditorii pramisit, £cc. ad quod-
cunque et quofieacunfjue ipse Rohcrtua Clifford
aliquos ad domum Wiljielmi Stanley i. partibus
eitsrioribus, per priTntum s^um inii
habitam. destmeret, pro ipsius ac diet
Warbecb, inlmicorum regis, &c. adjuramme ;
ipse Willielmua Staidej eo toto posse adjurar*
vellet, tie. quorum, Sec. prsteitn dictui Ro-
bcrlus Clifford iter suum ad partes eitera^
g'slato Petro Warbeclc arripnit, &c. J£t sic
eraut adhzreates, &c. — Judgn)^^ » Im
banged, drawn, and quartared.
i Petri
oogic
867] STATETRIALS, ^ Cn. 1. \62t.'~~Proutdiitgt ageinu Jofm Fekm./or tie [SGfi
March aDd Caren'a Cftse, (Sarre;r). Anna
tricetiinu Heiirici nctavi.
Hcnricm Marcliio, Eion, prodiCorit dicebatj
' I like well of the pnic«*(liog» of Cardin«l
' Pool :' et ulterius, ■ But I like not the pre
* cfeitings of tliig nuUm ;' and ' I truit to tee
' change in the world :' et ulterids ' I tru!
* once to hare a Mr day upon those knnves
■ which rule aboat the king ;' et ulterids, ' I
' trujt to give ihem a bafiet one da;.' Et Qu!>d
Nicholaui Canw, miles, malitititt et prodito-
. rife munnuracit, et indif>natU9 foit, et dlcebat
biEC Terba Aoglicana, ' I marrrl greatly that
* (he indictment agaiDSt the lord marquii was
< ao secredj hkndJed, nod ca what purpose 1 tar
' the like wa* mver seen.' — Per hagam ses-
(ionts tent, corani Thoin. Audlej, caocetlar. et
alias, 30 lien. S.
The Cas« of John Ron, (Berkshire), In the
thirty-first year of Henry 8.
Jolin Ri^, chifoler, for Uiete words, ' Tb«
' king's highness csuuot be suprema bekd of the
' church of England b}/ (^'s law.' Hugo,
abbot of Reading, superinde dixit, ' What did
' you for saving your conscience when you were
' twom to take the king for supreme bead?'
£t superinde prsdictus Joh. Rugg dixit, ' I
' added this condition in my mind, to take him
' for supreme bead in temporal (bingi, but not
' iu cpirirual things.' — Per indiccam. Mich. 31
Hen. 8.
The Case ofRobertRuQiwick, (Kent). Indv
tbirqr..fint vear of Henry 8.
Robertus aammicSt indictaiar, quitd etun di-
Yersi fuenlnt comedentci et compotantes, &c.
Thotnas Brook, tencos qoendain ciphum cerri-
•ia im^letum, &c. dixit, ' God MTe the king I
' here is good air.' Ad quod przdictus Ro-
bertus dixit proditorit. Sic. desidenins morteni
fcgis, &c. ' God save the cup of good ok I for
* king Henry iball be banged when twenty
' others shall be saved.' Cui prsdictus Thi>-
■DM dixit, ' Knnwest thon what thou sayeit i'
Pnedictus Robettnt iterom ditit ut supra,
' God, &c.'
The Case of Lionel Hauahton, (Leicester).
Anno tricesimo tertio Henrici octavi.
Lionellns Hanghton, nupn de Ormeskirk, ia
comitat Laucailrlz, taylor, pro verixs, vb. bo*
ing shootine at the batis, taid, ■ I would the
' king's body had been there as the airoo did
'liglit;' and, 'By the mass I would it haif
' bern in his bodv.' — Per iudictament. Mich.
39 H.-8.
The CaM of Edward Peujham.
Edward Peachom was indicted or treasnn
for divers treasonable passages in a sarmou
which was never preached, or intended to be
preached, but only set dawn in wiiliugs, and
found iu hii study: He was tried and found
guilty, but not eiecuted.-^nole. That many
of the Judges were of opinion, that it was not
treason. [See vol. 8. p. 870.J
Cballercomb's Case,
Henry Challercomh wu alto indicted of
treason for rfords, and was found ^ilty, and
The ^ase of John WiUiaais.
John Williams was also indicted, foutid guil-
ty, and executed, for writing a treBsonahle
book, called Balaam's Ass. [See v. S. p. 1086.]
Upon coniideralion of all which precedenit,
and of tha statutes of treason, it was resolved
by all the Judges Wbre-named, and so certiG*
ea to bis majesty^ that the speaking of the
words before-mentioned, though they were at
wicked as might be, were not treason.
For they resolved, that unlets it were bf
tome particular ttatute, no wards will be trea-
son ; for there is no (reason at this day but b^
the statute 15 Edw. 3 c. 3, for iningining th«
death of the king, Aic. and the indictnienc
must beframed upon one of the points in that
itntute : and the words spoken here cnn hebut
!videace to discover the corrupt heart of him
that spake them ; but of themsehrs they are
nut treason, neither can any indictuieot be
framed upon ihem.
To rliai^e the king with a pertoiial vice, ■■
say of luuj, ' That he ii the greatest vihorc-
nonger or drunkard in the kingdom,* b no
treason ; as Yelverton said it wis held bjr the
Judges, upon debate of Peachara's Case..
133. Proceedings against John FeltOn,* for the Murder of the
Duke of BucKinghaui : 4 Charles X. a. d. I€28. fRushw.
Coll. 635. Whitel. Mem. 11. May's Hist, of the Pari. 10.
1 Clar. Hist, of the Reb^lion, (Oxford ed. of 1707) 28, 42.
S Kennel, 45. 4 Carte's Hist 195.]
' The town of Rochet was at this time strqiily Endand had prepared a fleet to relieve it,
beleaguered by the French king, and the king of uodertheconuiiBndortbedufceolBiietingbwn,
rof wholeconrMofhistireandconvenndoo; which
10 promtung aspect ; ofdispo- 1 last I do not mention out of purpose to connte-
Hti^atGnoaSiBudmelxacholyibutreligiDusiiitbc nance hu unlawful act, u itippoaiDg hna to
•" This Felton,"sBya May, *■ w
a lowiiature, and no promtung asp
469] STATE TRIALS, iCn.l. lOZS.
who bring adTanced bi far as PorUrnokith, ou
Saturday Aiwat 33, 109t), being Banholamew
Etc, waa ■uddcnl]' alain * iii his own todgingi
Uwrc, by one lieutFoant Felton, about nine in
the morniug, oho with one blow, having got a
kuife lur ibr purpiiie, itruck ihe duke under
tfap left rib, and up into the heart, learing tbe
kdife in his biKly, and got aivay uudiscovered.
In the fall to the ground, the dute was heard
In aay, • The riilain bath killed me.' Companj
coming presenttr in, found him weltningin hia
blood ; and ecLch penoii looking itpon another,
■narreiled ivbo dnuld do so hemd an act ; a
jealuiuy wni prrMntlyhad of Moniieur Sobiei,
vfao nas then there Inbouriog lor Hpeedy relief'
to he sent to Rocbe! ; bat be prointing his
nocencTi Felton immediately' slept uot, b
nid, ' j sm tba man that have done the deed,
' let no man suffer ihnt is innucent.' Where-
upon he nas immediaidy apprehended, sent to
liondon, and there imprisoned. Tlie king was
witliia fijur milts of Portsmouth, xhen iht
news wai hraiu;hthim of the death of the duke
lie bid «ecure the murderer : and bishop Laud
have had (as some did then talk) any inspiratii
or calling of God to iV: His confenions to hia
friends, both public and private, ware. That be
iMd often lecrat motiuns to that purpute, which
be had resitted and prnyed agninsi, and had
■hnoit ovorome, until he was at last conlirm-
td in it, by reading the lare dinulved parlia-
nenfa Rnuonsttnnce againit the duke : Tlint
then his Eonscienoe told him it was Just and
budable, to be the oiecutisoer of that nao,
whom Ihcbigbestcoart iifjudicature, the repre-
ttDtative body of the kingdom, bad condemned
B> a traitor. But, let posterity censure it as
tbej please; eertnin it is, that Fekondid much
repent him of the unlawfulness uf the hict,
of DO fear of death, or punishment here,
lie wished his b:ind cut ofibefore the eiecut:
wliich bis judges coutd not doom by the latvs
•f England."
* James Howell, in a letter to tlie countess
of Sunderland, dutcd Au^. 5th 16^8, gives the
fallowiog Account of this transaction :
" Upon Senuday last, which whs but next
before yesterday, bring Bartluilomew eve, the
duke did rise up in a well-disposed humour uut
of his bed, and cut a caper or two, and being
ready, and having been under tlie barber's
band, (where the murderer had thought to
have done the deed, for he was leiuiing upon
the window all the while) he went to breakfast,
attended by a great company of commanders,
wbere Mens. Soubixe came to hioi, and whis-
peied bim in the ear that Itochel was relieved :
tbednke seemed to sligbl the news, which made
■Otoe think that Soubize . went away discon-
tented. After breakfast, the duke going out,
<al. Fryer Kept before him, and stopping bioi
upon some businrss, and lieut. Fe'ton oeing
behind, mtde a thrust with a oimmait ten-
penny kuife o*er Fryer's arm at the duke,
wbicb Uchted so btall^, that he slit hit beart
in two, barioi the knite sticking in the body.
—Murder of the Dule <^ Buckin^iam. [370
I tind idvenisementofhisdeiahtheSlthof Aog.
being then at Croydon, with bishop Neal mmI
oilier bishops, cuiiiecrating bishop Montagu*
fur Cliici tester.
Whilst Felton remained A prisoner at Lon*
don, great <«ts the resort of people to see tba
man «ho had committed so hold a murder,
others came to understand what nere the mt^
tivesand inducements ihercuoto; lo which the
man fur the most part answered, that he did
acknowledge the fact, and condeniued himself
for the doing thereof. Yet iiithul, confessed
he had Ioiik looked upon the duke ai au evit
imtrumeut in the cummon-weoiih, and that be
was convinced thereof hy the remonstrance of
psrliniuent. Which can siderat ions, together
with tl;e iustlgaliou of the evil one (who i* al-
ways ready to put sitiful motions into speedy
actions) induced him to do tliat wbicb lie did ;
He was a person of ■ little ttature, of a stout
and revengeful tpirit, who having once received
nn ipjuiy trom u genllcman, be cut off a piece
of his little linger, and. sent it with a challenge
to the gentlemau to fight Hith hint, thereby iv
The duketookouitbe knife, and threw it away;
and laying his baud on liii3Uord,aud drawing it
half out, said, 'The villaiD hath killed, me,'
(menniug, as some think, col. Fryer) for ther*
reeling ai-ainst a chiuiney he fell down dead.
The dutcheu beiii^ with child, bearing the
noise below, come in ber Dight-£eers from her
bcd-chamhcr, which wot in nn upper roam, to
a kind of mil, nnd thence Ithild tum weltering
in his own blood. FcltDii bod lost iiis lint iq
.the crowd, wlierein there was a pHper sowed,
wherein he declared, that the reason which
moved him to this act, was no grudae of his
own, though be bad been far behind for hi)
pii}', and hnd beeu uni by bis captain's placa
twice, but in rcgnrd he thought tlie duke au
enemy to the State, because be wa> branded \a,
parliament ; ihenfore «bat he did was fur the
public good of his country. Yet be lot clear}}
dovi-n, and %a might haie gone to his horse,
wliich was tyed to a hedge hard by;'butb«
was sn aniaied that he missed his way, and ra
struck into the pastry, ttltt-re, although ibe cry
went chat some Frenchman had done it, ha
thkiking the word nus Felton, boldly cunfaued,
it was he tliat had doue the deed, and so he
was in their bands. J ack Stamford would have
run at bits, but he nnskeptolf by Mr. Nicholas;
so beini- cairied up to a tuner, captain Miuca
tore off Ills tpura, and asking how l.e durst at-
tempt such nn act, making bim believe the
duke was uot dead, he answered buldly, that
he kncwbe was diapotchcd, fur it was not be,
but ttie hand of Hearrn that gave the stroke;
and though his whole body hud been covered
over with armour of proof^ be could not haT#
avoidtd it. Captain Charles Price "cnt posi
presently to the kinu four miles off, who being
■t prayer* on bia knees vcben it was told bim,
yet never stirred, nor was he disturbed ^ Mbit
(ill all divine service iru doiw."
Si
^>;;lo
S71] STATE TRIALS, •€«*■«* I. IMS. —Proceedinit t^tmit John Mum. [»»
i. for the ttiiJ of Telouj,
let him know ibat he valued not (h» exposing
hii whole bod; to h.tzarrl, su he miglit tiur have
mil Mipomuiiiy to lie reveiiReil.
After^tnrds Feitiin wui called befure ihe
couDcil, where he confeaaeil much of ivhat u
befiire mentioned coKceroiKg his inducetnt'iit
to the DiurdFr: the council much (ircBied him
to canTess «ho set him un work to do such n
bLoi>dy act, and if tho Puriiniis had no hand
therein r he denied thej had, mid so be did to
the !■«, that no'penon whatsoever knew but
(hing of his intentions or purpose to kill the
duke, thmt be revealed it to none living. Dr.
liHud, bishop of London, being tlietial (hecouu-
eiMable, told him if be would not confesj, he
must |0 lo the rack, Felton replied, if it most
be K> he could not tell whom he might nonti-
naie in the extremilj of tortlire, and if what be
■bnuld nr then most fft fur truth, he coulrl not
cell whether his lord^ip (me>iiing the bishop
af London) or which of iheir lordshipi he mifint
name, tbr torture mi^E draw unexpected things
from bim : after tbis be was asked no more
qoettions, bnt sent back tn prison. The coun-
cil then fbll into debate, whether b; the Uw of
•iw land thei could juatjfjr the putting him to
tte rack : The king l>eing at council mid, before
■nj such thing should be done, let (he advice of
the joilgw be bad therein, whether it be legal
nr no, and aftenvards his mmesty tlie 13tli of
November, 4 Car. propounded the question to
ur Tho. Ricliardsun, iotd chief juiiice of tlie
coinmaa pleas, lo be propouudcd to all the
justices, (viz.) Felton now a priutner in the
Tower having confiiiLed ttiat he had killed the
duke of Buckingham, and ^nid'he was induced
10 tbit, partlj for ptivnte displcBSiire, and
pard; bj reason of remonstrancein parlianif"'
haviii|; blto read some books, ivbich, lie sa
deflcnded that it waslawfiil to kill an enemj
thcf there were anj law against it, (for said
■he king) if it m%'bt be done bj law, he would
not use his prerof^civr in this point, and
ing put this questiiio to the loj-d chief jai
(M king commanded him to demnud the re-
solutions of nit ihejadees.
First the Justices of SerjodnCs Inn in Chan-
eery-lane did meet ood aoree, that ihe Ling
may not in ihii case put the party to the racV.
An'd the 14th a( November all tbe justices
being assembled at Setjeants Innin Fleet-street,
■greed in one, that heoaglit not by the law K
be tnrtnred by the rack, for no such panisbmeni
is known or allowed b; our law *.
And this in case of treason was brought into
tbis kingdom in tbe time of Henry tbe 6t1i;
note Fortescue far this point, in bis book ' de
laudibus legum An^lix,' see the preamble of
■ '" - ■■ rthet
treusous are done upon the
Ed. 3, ca. of jailors or keepers, who by duress
make lite prisoners to be approvers.
On Thursdaj the STih of November, Feltoa
removed from the Tower lo the Gale-house,
... jrder to bis trial, and was tbn some day
brought by ihesheri&of London to the King's-
bencb bar, and the indictment bcio^ read, he
demanded whether he were guilty of the
iiiuider therein mentioned: He ansvrerad, ' '
the same, though he did not do it out of malice
ohiiD.' So the court passed sentence of death
ipon him ; whereupon he offered that hnod to
lecut olTthatdidtbe&ctj buttbecourccould
not, upon his own offer, inflict that further
' nenl upon him : NcrettlieleM the king
the judges to intimate his desire, that,
hi* hand might be cut off before eiecution.
But the court answered, that it could not be;
aU mnrden,tbe judcment was the same,
uuleai viben tbe stavnte of S5 E. 3, did alter
of the oSenc«, and upon a several
iodictmrnt, as it was in uueen Elizabeth's time,
when a felon at the bar ttungaitone at ajudi;.*
upon tbe bench, for which he woi indicDM,
and hit tratence wa* to have his hand cut off;
which WW accardinijl; done. And they also
proceeded against bim uppn tbe other indicl-
inenl for tUooir, for which he was fou»d guilty,
and aftenvardi huBod. And Felton was after-
wards bung np in'cMins, in maoiiM bj i» usual
npan notorioiu murdcia *.
* See the Note to the countess of Shrews-
bury's Case, vol. S, p. 774. and the Anicli
there died.
• " Afl the historians abound with tcMi-
monies of the king's fondues* tor Buckingfaan.
It appears that to shew his affection to the
duke's memory, he gaVe command for n mag-
nificenl funeral, tail the thrifty treaturer diverted
theproiect by telllu( his majesty, '. Such pomp
' would bat prove but au nour's show : and tt
' would be more for his glory to erect bim k
■ stalely moiiiiment that might be done for, batf
' tho cnst.' Upon which bis body was pnvately
interred, on September iS. And when the
king afterwards talked of a costly monnment,
the treasurer is said to have used this other eva-
sion: 'Sir,! am loth lo tell your majesty what
' the world will say both bera and abt'oad, if
' you should raise a monument for the duke
' before you erect ana fur your father.'" See 3
Sennet, 45.
Lord ClarHidoo relates the strange story of
Buckingham's fiither appealing three times ta
an OEBcerofthe King's Wardrobe, and direct-
int bim to tell the Duke, that if he did not con-
ciliate the people, be would be suffered to lire
but a short time. 1 Clar. Hist, of tbe Refael-
:i>y Google
9731 6TAT£ TBIALS, 3 CiiABtEt^i IGW^—Fncudrnp a^aatt Skhard CiaaAen. [371
bnvinr a can; of silk grtgerani) brought from
BriaM bj > carrier tu LondoD, of tbc ralue of
400I. ilic same itere, by Boma infsrior officers,
■ttMidii«on tbeLnatom'tlauWiKiicrl withoui
thu de^ndant'i coBMnt, nmwitbitaading ba
oScrad to live tecuritj to pay luch cuitomi u
ghoald be die by law; ood tlmt he hath bwn
dtbrrwise grieved and damnilied, bj the iojit-
riom (ieating of the wuler-officen of tbe Cui-
Umd-Uouic ; and mentioned the partJcuUrs
wberun : and that bein)t called berore the lordii
of 'the Council, he confeweth, ihat oat of tbe
great *eose which be had of tbe injuiiei dntie
dim by ihe (aid inferior ofticen, he did ntCer
theM woHa, ■ that the marduuiis in England
* were more wrung and screwed than in foreign
■ I^nd wni accused of haTiog aggravated the
isetter agHiiibt Cliainbcrs, and of bnaioit said
to the kii<s, " If yoar mnjeity had maaj such
Cbamben, yiju Hould mmji have do Chamber
lefi to reu in." Uist. ^ tbe Trial and Troubles
•fAb|i.LHd.
'parts.' Whichwords were only i-DoIicii in ihe ,
pntence of doe prif y-council, and^ not spoken
abroad, (o stir up any discord amooc the people ;
and not spoken with any disloyal thought at
that time of bi* majuty's goveniment, bat only
inteoding by these nords to introdnce his jast,
canplainC iniiMt tfa* wrongs aMd injuries h«
httd sustainea ^ the inferior oScera ; aod that
as soon aa fa* had beard a bard constructiou
was pien of his words, be Mideavoured by peti-
tion to the lord* of cbe council, humbly to ex-
pkin bit meaniug, that he bad not tbe least
evil thought as tu his lUHJoly's guvenuuetit;
Tet was not pcnniOed to be beard, bat preteai-
134. Proceedings against Mr. Richard Chaubeds, in th'e Star-
Cliamber, for seditious Speeches before tbe Privy-CJouiicil :
5 Chables I. 1629 * [! Rushw. CollectioDS, 67O.]
In tbe year 1639, (ii ttoberl Heath, tbe kind's
Atioraey-Genefal, praftfred aa Information in
the Stw^hambflT^iuM Richard Chambers of
the city of London, mttt^nt. Wherein, fint,
be did (et forth tbe padotu government of the
king, and tbe great privil^e* whicti t]ie mei^
cbauls have in tbeir tmding, by paying mo-
dcrste Duties for the goodi and mercbaniiixet
nported and imported ; and setting forth, that
tbs laiaiDg and publi^ing of unduliful and
false speeches, which may lend to the diabo-
noor of the king or the slate, or to tbe di»-
coaragement or discoiileotment of tlje (ubject,
«r to set discord or variance between bis inajeitj
and bis good people, are offences of dangerous
consequence, and by tbe law prohibited, and
condeoincd under several penalties and puniib-
menta. That nevertbeleu the said Richard
Chamben, the aiith dny of September last, b^
ing^ amongst otlin- merchants, called tu tbe
Council-brard at Hampton-Court, about some
things which were complained of in reference
to tbe Customs, dill then ood there, in an into-
lent manner, in the prewnce or bAring of tbe
lonls and other of bis majesty's priiy-council,
then sittbg in council, utter these uodutiful,
•I'diiioiU, and false wonlt, ■ Ihat tbe merchants
' are in no jtart of tlie world so screwed and
' wrong as ia England ; that in Turkey they
' liave more encouragement.* By which words,
fare tbe said lliobanl Chambers, as the Informa-
tiun sctteih forth, did endeavour 10 nlienate the
good aHeciioD ol hij uuijesty's subjects from his
Buyesty, and to bring a slnudcr upon hia jtisl
foverament: and therefore tbe king^s Attorney
pl^iaed to accept of his foitblul eiplami
n hich be now make* unto this boaoamide court
upon his oath ; and doth profess from ibe bol'
torn of his besrt, ' that his meecbes only aimed
' at tbe abates of tbe infenur oScen, wbo iu
' many things dealt most cruelly with him add
' othermercliaiiti.'
There were two of the deik* of tbe Prifv-
Council eiBinined at witneMes 10 prove the
words, Qotwilhstauding tbe defendnni confrased
the words in his Answer a« aforesaid, wlio pmi-
ed the niorda as laid in the iafonnation. And
on tbe Gih of May, 10!!), tbe canse came to be
benid in the Stitr -Chamber, and ibe coart were
of opinion, tliat the words spukeu were a com-
paring of hit majeaty't government with tbe go-
vernment of the 1'urks ; intending tliereby to
make tbe people believe, that his majesty'*
happy goremment may be termed' Turkish t^-
' ranuv ;' and therefore ttie Court lined t^
said Mr. Chambers in the sum of S.OOOl. to bis
majnty's use, nnd to stand committed in the
pnion of tbe Fleet, and to make sabuiiesion
for his great oAince, both at the en uncil- board,
in court of Star-Chamber, end at the Rnyal
Exchange.
There wa« a gr«at difference of opinioA in
tbc Court about tlie Fine : and because it is a
remarkable case, here felloweih the names uf
each scleral person ubo gave sentence, and
tbe fiae they concluded upon, \it. a
Sir i-Va'tr»Colfin^((»i,ch>ocellaTof tbe Ex-
clieqitcr, his opinion wus fur SOOl- fine t»
the king, mid to acknon ledge his otfence at
the couiicil-Lnard, tlie Star-Clumber Ba^
and the Exchange.
Sr ThBmai AirAor^'', lord chief justice of
the Common Pleas, AOO/. fine to lliE kinp,
and to desire thekingf] favour.
$17 KUIiolei Uydr, t'lM chief jusiicc of ilw
King's-Bench,jOOf-aiidludi.iiir« tbe king'ii
375] bTATE TRIALS, SChabLesI. -Hm.—Fncttdingl agamst Richard Chamben, [31G
Sir Jahs Cook, secretary of stale, ] ,000f.
Sir Humptrru Mai/, cbnncellor, l^OOl.
Sir Thoinat Edmond,, B.OOOt
Sir Edvard Barret, ifXQl.
Dr. Heal, bishop of WincheMar, 3,000/.
Dr. Laud, bishop of London, S,000f.
L.CaWton, principal secretiir; of Mata,3,000J.
I.Aril , chnacellor of ScotlRod, 3,000f.
EnriofHo/Ai'irf, l,500i.
Earl of Dnnrii)r«r, 1,!K»(.
Enrl of Srt(u*ury, i;S00i.
EarlofDorw(, 3,000/.
T-*t\ a\ Shffidk, 3,000/.
F.. of Mounlgoimiy, lord cliimberlain, 1,500/.
£iirl of Arundel, lord hi);h mnrahal, 3,W0l.
' Lorti Manlngue, lard privy %tai, 3,(K)0/.
Lonl Coaaiay, 9,000/.
Lord Wetlau, li>rd trconirer, 3,000l.
L. Coiunt'^, lord k. of the great wal, ],500/.
So ihe fine nrn settled to 9,000/. — And all
(eiccpc llie t«o chief jiwticea) concarred
for a SubmiMion nbo t-i he made. And
accordingly thr copr of the SuhinbMon
was sent to the Warden of ibe Fleet, fr.»m
Mr, Attorney- Gene ml, to ihew tlie said
Uieliard Cliiunbers, to perfi>rm and ao-
kjiowledpe it ; nnd was »a followeth ;
"I.RicliMd CUainbf rs, of London, raerchnnt,
do liiiinbly aiJ^ii<)»UU|$t', tint whereas upon an
infoj'matian ci.bibited against me by the Icing's
(I ttornpy general, [ was in Easter term last sen-
tenced by the boonuruble court of Stnr-Cham-
lier, for ihut in S< preniber Ust, IG^Q, being
convcnted before the lurits and otJiera of his
majesly's most hon'mrable privy -council, board,
upon some speecliis then used coiicemine tlie
tnerchanis al tbis Lmgdoin, and his ninjeaty's
will and. grnciuus usBEe of them; did then,
nnd (here, in insolent, contemptuous, und sedi-
tious innnner, fiilaly and maliciously tay and
aStnn, ' that ilicy,' meaninf; ibe mercbaots,
' are in un paris of the world so screwed and
'iviuiis «» '0 Knglsiid; and tlial in Turkey
* they huve more encouragement.* And where-
as liy ihe sentence of that honotimUe court, I
was adjudged, Hinong olbtr punislnncnlsjutlly
imposed upnn mp, to make my humble ackiiour-
ledemeiit and submission of this great nlTence
at iliis honourable board, before I should be
delivered out of the prison of the Fleet, whtre-
to I was then cnmmittcd, ns by the ^nid decree
and sf nience of that cnuit, among otiier tiling,
it liolh and may nppear; now I the said R.
Chamber., in obcnience to the semeuce of the
Mid honounil'le court, do humbly confess and
unLnoivled)^ ilie situuking of these nords afotO'
said, for tlie nbich I v«t so chnreed, and am
heanily tocry for the same ; and do humbly
he-eccli your tordthiis all to be honourable in-
tercessor, fur me to his mi>je>ty, that he would
. be graciiiusly pl<a>ed to pardon this great
eipir and fault so ooiomitieci bj me."
When Mr. Chambers read tlii* drangltt of
B..i._; -■;, he thus subscribed the some:
Submits
'All theabo*Maid contents and Submission,
* I Richard Cbuibtn do utterly abfcor
'and detMi, n moM unjust and false;
' and ncvi^r till death will acknowledge
' any part thereof. Ktcn. CHiIIibem.'
Alie he U!ider-"rit these te»i» of Scripture
o the said Submission, before he rctumHi it.
' Tliat make n man an olTender for a word,
and lay a snare Cir bim ibal reprovelh in the
gate, and turn aside the just for a thing of
nouHlit.
' Blame not before thou hast examined lli«
truth ; underhand first, and tlien rebuke s
answer not before ihou hast heard the cause,
neitlter interrupt men in the midst of their
talk.
■ Doth our law judge any man before it hear
bim, and know what be doeth /
' King ^rippasaid unto Paul, Thou art per-
mitted to speak fur (byielf.
* Thou thall not urett the judgment of tba
pr>or in his cause, thou shalt nut respect pei^
sons, neither take a gift : for a gift doih bund
(ho tyes of "fte wise, nnd pertert the eyea of
ther^huous.
' Woe to tliem that devise iniquity, bccauM
it is in ibu pontruf their hand, and (hejr covet
fields, nnd uVe them by viutence; and
houses, and take thcin iiivay : so they oppre>»
a maa and liia house, even a man and bis he-
"■■S
sqjih the Lord God, let it suffice you,
■ \j prmcES of Israel : rciuove violence unil
* spoil, nnd execute judi;ii>ent and justice, take
' away your exactions from my people, saitb
' the Lord God.
' If thou setst the oppression of the poor,
' and violent perverting of judgment and justice
' in a province, marvel not at the matter i fur
■ he ihut is higher than the highest refaidetli,
' and there be higher thai) they. Per a\p,
IllCHAVD ClIlUBERt.'
Afterwards in the term of Trinity, the 5th
year of king Charles, it is found iii the great
Roll of this yenr, that there is demauded there,
of liicliard Chnnibtrs of [jjndon, merchant,
3,000/. for a certain Fine, impos<>d on liim, lii-
tber tent by virtue of h writ of our said lord
the king, under the foot of Ibe f^at seal of
Enilaod, directed to tlie treasurer and b<uobi
of this Ei chequer, formakini; etecntion there-
of to the use of the taidlordthe kiojt, as w
there contained ; and now, that is to say, ia
the oclab of the blessed Trinity, this temi,
comes the said Richard Chambin in his own
proper person, and demands ojier of the dr-'
maud aforesaid, and it is read unto him ; and
he demaads o^er also of the writ afore^id,
under the foot of tlie great seal of England,
liitlwr sent, and is read unto him in ihese
" Charles by the grace of God, of England,
Scotland, France auil Ireland, king, defender
nf the faith, &c. to his treasurer and baroui of
bis Exchequer, health. Tiie eitrete of celtnin
6nn taxed and adjudged by ns and ourcnmicil,
in our said cnaocil, in our court of Siar-Cliam-
ber,in th« term of St. Michael, the tcm of &
S77]
STATT TRIAl^, 5 Cbam.i» I. ]629^-J6r tdbioia Speecha.
[87i
HiUry, nnd tbe term of EaMrr Imi pMt, opon
Tbomu Bung, of Ilie puisb of St. ClemcDt
Dane* in the connt; of Mkldlesei, caTpcnter,
%aA others, icverallj and dividolly, ai uiej be
there seoeiHllj asieMed, we send unto yaa in-
cluded in tbeu presenis, comniandinei that
looting into them, yon do that nbkh oj law
you ai^t to do Bfaiiist them, for the lerjiag
of Uu»e fines. Witnen ouraelf at WeKmin-
Mer, the aiu of May, in the jear of our reign
tbeJtth."
And the tenor of the Schednle to the laid
Wntanneied, a* to tbe laid Richanl Cham-
ben, fcdloweth in tbeie words :
" Id the term of Eaater, the Sfth jear of
ktngCharbes, of BicfaardClnunbenorliDndon,
merchant, j,OOQf. which being read, heard,
and fay him undentood, he complaina, that he
B gnevous)<r vexed and inquieieJ hv colour of
the premiics ; and that not juMly, tor that pro-
teitiii^, tbat the great roll, and the matter
ibereia contained, a not in law lufficienr, to
which he hath no need, nor a bound by law lo
answer. Yet for plea the said Richard Cham-
ben saith, that he, of the demand afiireaaid, in
the great roll aforesaid mentiaiied, and every
parcel thereof, ought to he dijchorged Ngainat
Uie snid lord the king, for that he said, i^ he
from the time of the taxation of the aforesaid
fine, and long before, was a freeman and a
mercbant of this kingdom ; that is to sav, in
the parish of the blesled Mary of the Archei,
in the word of Cheap, Londiin : and that by a
certain act in the parliament of the Imri Henry,
late king of England, the (bird, lield in the
ninth year of liis reign, it was provided bj au-
(burity of the said puriiament, that a freeman
■hnll not be amerced for a little ofIence,but ai:-
cording to tlie manner of the said offence ; and
for a ^nt offence, according to the greatness
af the offence, saving to him nij contenement
-orfi«ehold; and a merchant in tliesameman-
iier, saving unto him his merclmndize ; and a
-villain of any other tlinn the kingnfier the same'
manner to be amerced, saving bis wainage;
and none of the said' amerciaments to be im-
posed but by the oaths of good and lawful
tDcn of lb* nerghbourhood : and by a certain
other Oct in the parliameDt af the lord Ed-
ward, late king of England, the first, held in
the thinl year of his reign, it was and is
provided, that no <nty, borough, or town,
DOT any man, aha]! be amerced, without rea-
sonable cause, nnd aocottliag lo bis trespass ;
tbat is to say, a freeman, saving to him his
contenenient ; a merchant, Mving to him his
tnerchaodiie ; aad a villain, taiing In -him
his wainage i and this by their [leen : and by
the Mme act in the psriiament of the snid
lord Henry, Inie king of England, the third,
bejd in the 9tll year of his reign afortsaid, it
taken nrimpri«oued,ordMB«ied of bis freehold,
•r liberties, or free-customs, or out-lnwed, or
IT aay nay destroyed i and ibat tha
lord the king should not go upon him, doi
deal with him, but by a lawM judgment of hi*
peer;, or by the law of the land : and by a
certain act iu parliament of the luid Edward,
lata kin; of EogUiid, the third, held in the
fiftbyearof his reign, it wasandi* provided by
tbe authority of the said parliament, that no
man henceforward should be attached by rt«-
SOD of any accusation, nor preiodged of lifo
or member, nor that his lanu, tenenients,
goods or chattels stionld be seized into tbe
hands of the lord tbe king against the form
of the Great Charier, and the law of tba land;
and by a certain act in the parliameot of tb«
loi4 Henry, late king of EngUod, the seventh,
bdd in the third year of bia re^n, redtii^ that
by unlawful maiuienances given of hveries,
signs, and tokens, and retaindert by indenture*,
promises, oaths, wntings, and other imbraccries
of the subjects uf ihe jaid lord tba king, fahte
demeanors of sheriffs, in making of paunds
and other false returns, by taking of money by
juroi^, by great riots and unlanlul atsembiiea,
the policy and good gorernment of this kinc-
dum was almiisi subdued ; and by nut puoisb-
xnz oflhesuidintxiDitniencies, and by occasion
oi^the premisiei, hl.le or nothing was found liy
inquisition ; by reason thrreoF, the laws of the
land had little effer.t in their execution, to the
increase of murders, robberies, perjuries, and
insecurities of all men living, to tlie loss of their
lands, and vpoAi, to the great displeasure of
Almighty God ; it mis ordained forrtformatiiit^
(if tlie prcmlsscf, by nutbority of the said par-
liament, (hat the clianceiior and treasurer of
England fur the time being, and the keeper of
the privy-teat nf the lord the king, or tmo of
them, idling to them one bishop, one lord
temporal of the most honourable council nf tlie
lord tbe king, and the two chief Juitices of ilia
KingVbench and Common Pleas for tbe lime
being, or two other justices in their absence, hy
bill or information exhibited to the chancellor
for the kmg, or any other, against any peison,
for any other ill behaviours aforesaid, have aa-
tiioriiy of calline before them, tiy writ of pcivy-
seal, such muleiactors, and bf examining iheoi
and others by their diicretiun, and of punisb-
ing such OS ibey find defective therein, accord-
ing to their demerits, according tu the Ibrm and
effect of iba statutes thereof made, in the <ame
manner and form at they inigbt and ought to
be punished, if they were thereof convinced ac-
cording to the due course of law ; and by a
certain other act in the parliament of the liird
Henry, iote king of England, the eighth, Iirld
in the SIst year of bis reign, reciting the
otfcnces in the foresaid statute uf the said iate
kins Henry the seventh, before-mentioned, by
anibDiily of the said parliament, it was and is
ordained and enacied, that henceforward the
cbancdlor, Ireakurer ofEngland, and the pre-
sident of the most honourable privy. ccmncil of
the king, attending his most honouiable person
for (he time being, and the lord keeper nf tbe
privy-seal of the hird the king, or two of them,
caUing to them one bishop, and one lempural
979] STATE TRIALS, S Cbaslu L 1 0i9.—PTwxcJiiigi i«atMi Kdmrd Ckmbm, [SO
lonl, of the moM boaaunblc council or the
lord the king, and iHD chief jntticn of tba
KiHgVbench, »nd ComtnoK PIbu Ibr the tiina
being, or two jiisiices in tlieir a'jsence, bjanj
bill or iDfannaiioii then alter tu be exhibited
(o ibe chancflloi nf EuKtmiil, the trcBSLirer, the
eciidctit of the Ditst bonoiirabie cuuncil of tlie
rd the liiiiK, or ihe keeper of the pH«y-teal
«f the lord the kin» for lh« time bciag, fur inj
misdemeanut m [he afureMid Uatute of kii>(
Heaif the aeveiitli aforetaid befure recited,
Irooi henceforth have fiill power and authoriti
«f calliDg betbre them, hj writ or b^ privj-seal,
•Mch milefacton, stad of c^iuiunui^ of them
.Knd othen by their discretion, and ol puniihinf
those that are found detective according to
,their deineiits, aococding to the Ibrm and
effect of tlie ivid *iatute of the afomaid lord
king Henry (he sereath, and of all other sin-
tules thereupon made not revoked and expired,
ia the uime maiuter and furni M tliejr might
aod uuebt to be puni»lied, if the; were convicted
accordiDt to the due order of the la«t of the
aaid brd the king. And by the aforesaid writ,
under the foot uf the $reat seal, it maniicetljr
appean, that the *aid fine wu impoied bjr the
Juid the king and big cnaiicil, and not bj the
legnl peer! oT the Mid Rioliard Cboinbera, itor
by the low of the land, nor nccording to the
iBunaer of the preEendcd oHence of the Mid
Richard Lhiunbera, nor saving nnto hiin hli
tnercbandiie, nor for any olfcnce mentioned in
the laid statutei. All and lingular ibe which,
the laid Richard Chambers a ready to verify
tn ihecourt, &c and dcinnndijud^ineiit ; and
(hat he be discharged of the laid f,000/. agnioM
the said lord, the now kine ; and that aiio (be
preuiiiies he may be dimiuued froBi this court.
Willi tU) Plee, he anneicd » Petition *tD
the lord chief baron, and alio to tv6j one
the barons, humbly desiring the filing of
plea, with other reaiona in the aiwiaer of ■
motion at the bar, becaaae he said, counsel
would not move, jjead. Bar set band to it, U
futthei appearetlk
Hi* eipy of llie Order npon Mr. Attorney
1099,
r the lord chief baron.
" ToQcbinf ihe Plea put into this eoDrt by
Richard Cbarobers, to d'tcbur^e faimielfofa
fine of ifiOOl. set qu bini in the Star-Cbaniber,
forasmuch as sir Robert lli-aih, knieht, hi
mi^eaty's atloropy-generaj, informed this court
Ihat the said Chambers in hi< sn><t plea recites
divers statutes, and Magna Cliart:i, and what
oflencei arc punishable iu the SiarChamber,
anil how the praceediiigi ought to be ; and
upnn the whole .oiattai' concludes, that the
enld fine was imposed by the king and his
eouDcil, and mit by a legal judgment of his
eccr*, nor by the luws of ihe land, aor accord-
ing to the manner of hii offence, nor ssvinv
bis merchandiie, nor for aoyoQBitce mentioned
is the lud Kitaici ; wluch ptee,Mr,A(tuniey
conocivini it to be very frivokras and ieeuffi-
cicQt, and derogatory to the honour and jaiii-
diclion of the court of Star.Chamber, hiunbly
prayeth might not be allowed of, nor filed : U
IS therefore this day ordered, that the tiid
plea shall be read on Saturday next ; and ihea
upon faeniing tihe king's counsel, add the cooii-
sel of the uid RicMid Chambers, ihia couK
will declare their further order thereia j and in
the mean tiate the Mtid plea b nut to be filed
nor delivered out."
In Michaelmas term fuOowing, Mr. Cbam-
bcn was brotubt by a Habeas Corpns oat of
the I^eet; aniTthe warden did recnm,
" That he v-as committed to the Fleet by vii"
tue of a decree in the Siai<<;haKiber, by nasoo
of certain words he tiscd at the couacil-taU^
vii. chat the inerchauti of England *••
screwed up here in England owire than ii
Turkey. And for these and other words of d^
famntjon of the government, be was oensoitd
to be committed to the Fleet, aed to be tbei*
imprisoned until he had made hia submi^a at
the couiicil-table, ud to pay a fine of iflOOL
And now at the bar he pr«ycth to be delivered
because this sentence is nut warranted by aiy
law or sUtutM fur the sutute of 3 II. 7, whick
a tlie foundation of the court of Slai-Clunber,
dotb not f^\e them any authority to puulih for
words only. But all tlie coutt iiUiinned bio,
that the coun of Star-Cham ber was not cretw4
by thestalateofSH. 7, batwasacourtmany
ucominilted by the decree of one nfthi
I of Justice, was Dot the usage of lh<l
; and therefore be w
concerning Mr. Chamben, we shall iuert beta
a Petition of bis (though out of time} to the
Long Porlianieut.
To lite Parliament of the Commonwesltli uf
Englaitd, Scotland, ud Ireland.
The brief Retnonstrance and bumble Petriioi
of Kidiard Chainben, mercliant, lale aldcr-
. -. -r — — J- dermananri slteriff ofthe ciiy of Londou:
nintl^-Excbequer, tbclT^ofJujv, « Slewing; That ia the paHiameot held i« ,
ftfieribePleaput^Ln^andordertofile iheyaaiaiesr and 16*8, it was voted and de-
(Jaied by the honoutsble house of coinmons,
that whoeoever shall counsel or advise the uk-
ing or leeying of tite subsidy of Tunoagr aud
Puundage, not granted by pariiatnenl, or shall
be any actor or iuMnunent therein, shall be
reputed an innovator in t)ie eovemmeot, and a
capital eneoiT to the kingdom and cnrnnion- -
wealth ; and if any luercbaut or peraon whnt'
soever shall voluntarily yield or pay the slid
subsidy nf Tonnage and PDundwe, not being
granied by parliament, tbey shJi likewise be
reputed betrayers of Ihe liberties of Ecglsi^i
and enemies to tlie saa>e, as may appew by the
Mid Order upott reoord.
" In submitsinn and obedience wbereonla,
the petitioQer first opposed and withstood tb«
payment of Xunmge and Poundii|e, ualil ihQ
SBl] STATE TBlUa, 9 Cwuii h tes9.~-fi>r udkiou .^mkAa. {SBl
in theCiulDm Hoom of London, tli«D worth ■!
IcMt 600^ per Bonum ; but llie petitbiMr bai*
iiif e^ojm tWt placa odIj dght mootfai, warn
CMlveMMljr Mstea bf siniitcr informBuoBofin-
trvdere, who have enjojed that odSce and di-
videil tliepro&t [hereof between [bem eversuicc
the jaus. 1608 and leU, the petuiooer bad
T/WM of hii good» wroDffcUj tnktn and d*-
taioed from him hj the lata king'* officen and
tannets of the Cuitom-hoiue of Ixindon, for
C ended duties, and a heavy lentence and
in the 6tar><^haa)ber, which ww imposed
upon biin in tha jear 10S9. BetidiR wbtch
lones,t>ie petitioner further mficred in bii peraon
bjr ns ^M* yean impriwBment in the Ffect,
iur aot aabBuniiig to that lentenee and ine ;
and in the jear 1S37, nine mooth* inpriKm-
■mt in Newgate for withBtanding ShifrnMucj ;
1^ which lowc* ami impriaotuBcnis, the pett-
Dooer was put hi the ezenMe of bis calin|,
■ad waa womdM in bit credit and repatatioo. .
" Which tufienogs the baBOnntble Moie of
I* (upon the petiiioner'i couplaint in
vderaciona, «^ plened to lefer
tioa theMof to a committee of fifty meoiben,
wherein were indaded tbe coannitie^ for the
m*y and cuModb ; who hcing well satisfied of
die tinth tbscof, b; oath, and olher good ■•61'
ci«M pitMifs Dpon reeard, drew up their report,
dm the petitioner ought then to have lifiSOl.
ia pan of reparation, leaving the restoftboM
nparatioB* to tbe fonber jndgmeDt of theho-
Doonble house, at by tbe annexed copy of that
lepoR may further appear.
" In purtnicof which report, ilie periiament
U>n levied and received from the old farmen
sad officen of the ciutoins 50,000'. for wrongs
and abuses done Co the petitioner, chiefly, and
other merchttits, intending firit to give to the
Ctiuoucr saiisfaction out of the saine, hecaiue
was the 6r4t men that opposed the pre-
Eeaded duties, and the greatest Hifferer.
" Whereupon in the year 1648, tbe peti-
liaoer was chosen alderman, and in the year
nM4 sheriff of the city of Londoo: whkh
places tbe petiiioner enmcstly endeavoured to
sbao ; but lucb were the earnest importtiniticl,
and pennative enconmgemenla of divers mem-
bers (if ihe honouiahlelionse,(ttho thendesir-
ed t(t hnve tlie petitioner in place of trust,
(or hi« ibnner service to the coUimim wealth)
that the petitioner was constniiaed to accept
not only of tlie place of alderman, but fiirther
nnderweot the office snd charge of sheriff of
London, which stood the petitioner in 4,000/.
** Bat notwithstanding the aforesaid promises
and intents of the paritament to ^ve the peti-
tioner saiisfHCtion, such were tlie great compnl-
tive exigents, and urgent necessities of those
times, cansed bj the public distmction*, that
the said monies were converted to the pabhc
ise. .Therefore tlie paiiiBmenl desired the pe-'
tjtioner to have a little patience, promising him
qieedy satjs&ction as well for the forbeannce
•a for ^e principal debt. But the distractions
continuing, the peritioner had neither interest
nor any part of his principtd. Thepartiament
in tbe year 104B, in part of satisfaction, settled
the petmoner in the office of surveyor and check
done for obeying tl
Moreover, the laie king, by privy seal, owes
IB petitioner'a wifo (who is the relict of Mr.
Thomas Ferrer) for hueu cloth 5,0001. and for
money lent 1,900/. for which she was assigned
satisfKtioo etit ofthe custonft of tobacco. 6e-
sideK*he was (hrther assigned out of sir Tho-
mas Dawes' office 100 marks per annum. All
which debts likewise lie wholly unsatisfied, to
tbe petitioner's great prejudice.
"Beside* tbe aforesaid losses, hindeninces,
eapeDces, tafltrinn, and forbeanncea of the
profit of tbe •aidalfiee, the petitioner from time
to time bath hid oM himself for ihe'commoa
good, in aoling, lending, spendinE, (and serving)
when others refosed ; ei posed hims^ to that
imminent danger at Brentford, b; leading mt a
troop of hone for tha privilefies, hbettiei, and'
rights ofthe city of London and con moa wealth,
insomuch, thntlheicbj, and for want of his sa-
tisfaebon aforesaid, the pedtiooer, haraig con-
sumed his estate, hath been constrained lo sell
and mortgage soma part of his lands to pay
creditors, and to maiiiuin his fnnil;, having »
wifo and nine cblldm; and is likely to be un-
tbe pariiamenf t commands,
•tion of thia
hunouralile auembly he be speedily relieved and
righted ; for that ever since the said reported
sum, the petitioner front ttine to time bath
made hit hamble addresses to the inpreme
pawns for the time being, fot setisraction there-
of, and to be restored to the said office,' buC
conld not prevail.
" TfaepetitioneTtherefotehtiinbly prays, that
he may not perish for acting for tbe public good
Bccordingto Che declaration of parliameot; hat
thai now after H years soCenng, whereof IS
vans in fraitlesB and weamome waiting tfai*
nommreble atteinbly would now be pleMed to
lake the iinpat^eM loSbringt of (h^ petitioner
into tb«r giave coMiderations, for some epeedy
course for the petitioner's sadsfaction, to p«j
bis debts, and redeem hit lands, by ordering him
his lint losses and sufferings sprang) and the
other moiety to be discomptwl upon such goods
as ttie petitioner diell make entries of b; eitpoft-
aCioD or imponatjon In die Castotn House, Loo-
don, until his debt with the interest be folly sa-
tisfied and paid ; or any other speedy way, as hi
your grave wisdoms ^all seem meet : and in
like manner lor his wife's debt, which is to pay
debts and legacies: and that die petitioner may
forthwith be restored lo, and settled in tbe said
office, and have reparations from the intrwieri.
And the petitioner, with his, shall in all duty
everpiay, &c. Ricb&bd CHaMBEBS."
Sept. 6, 16M.
Tbe petitioner bnng weetied oat wlUt If
,, Google
363] STATE TRIAL^ 0 Coau.ei I. lOSO.—l'roceediiigt i^awt Dr. Leightm, [3M
;reir'BrttendanceuiN>BDnepu'tiaaient,ii)iiope* I wbject, grew iafina; sad being not rdicicd,
of reparucian for bis im prison mcnr, troubln, nu reduMd to m ion ciute and conditioa.
■ ' " ■■ ....... - 858, being about the ^
135. Proceedings in the Star-iChamber against Dr. Alexander
Leighton, for a Libel : 6 Charles I. a. p. 1630.
[" The foUowiog report of this Case is sxtrncte*!
frum i RusliwortJi, 55. Mrs. Miiraulu;, iri
her history, cummeitts on the proceedings
agaiiii.1 Dr. Leighluu with great wveritj.
a Macaul. Hist. 91. Indeed, the craeTty uf
ibc Sentence is beyond cicuse." Uai^mve.]
An Iiifonnation fonacrly exfaibiied in
Star-chamber agaicist Altinnder Leighti
Scvtsman born, and a doctor of divinity, •
10 be heard the 4(h of June in the court of
Star-Chmnber, for traming a book entitled, ' An
' Appeal to the Parlinmeot, or a Plea aeaiitst
' Prelacy,' wliicb he priTiicd and published,
during the littinp of the lest parliament : and
delivered it to diverse persons in a way of pre-
•enting just complaints (ai be gave out; to the
then commons honie of parlinmeiit, 4 Cor. 1.
The defeodaQt was charged by ibe said In-
fbrmaiinn witli framiog, publishing, and dis-
persing a scaiululaus book against King, Peers,
and Prelates, wherein amongst other things he
•els forth these false and seditions assertions
and posiuons Mlowing:
1. " That we do nut reiul of grenter pene
* cution and higher indignity dune upon God'
' people in any nMion professing tfie gospel,
' than in this our island, especially sinct
' death of queen Elizabeth.
9. '■ He terms the Prelates of this realm
* ' men of blood,' nnd enemies to God and the
' Mate, and saich, ih&t the maintaining and
' eNsblishing of bishops if ithin this realm is a
' main and mastersin eMablisbed by law, and
' that ministers should have no vaicea in coud-
' cil deliberatite and decisive.
3. " He avewed the prelacy of our Church
' ta ba ' antichristian and satanicali' and terms
' the bishops, ' ravens and magpies,' that prey
4. " He terma the canons of our (;burch.
5. " He disallowed and contemned the cere-
' mony of Itiieeling in the receiving of the s>-
■ crament, alleiiing that the suggestion of false
* tears to the king by the prelacy, and the seek-
' ing of their own unlawful stiinding, brangbt
* forth that received spawn of the bMst, kneel-
' ing at the receiving of the sacraiuenl.
6. " He affirms that the prelates did corrupt
' wickedly cnileth his majesty's royal
' our Kracious queen, ' the daughter of Helh.'
7. " He most impiously seems to cnrameud
' him that committed the barbarous Bn<l bloody
< act of murdering the late duke of Bucking-
Hiraee others to second hi
1 tuid desperobe utttuupt,
' in the like wicked aiid desperobe utttuupt, la
> tbe destruction of others.
3. " He layeth n most sedilious icaDdsl
' upon tbe king, state, and kingdom, wickedly
■ affirming, 'tbatall that pnas by us spoil os, and
' ' we spoil all tliat rely upon as ;' and amol^
' other pardculan, instsnceih the black pinmf
' death nf the Aunisbed Budtelers, to the num-
' ber of 15,000 in four months : by wiiich pis-
' sages and nicked positions and ■assertions, be
' did, as mucb as in him lay, scandalize his ins-
'Jesty's sacred person, liis rel^ious, wise and
' just government, the person of bis rnyal coor
'• sort the queen, ilie persons of the lords and
Eeers of this realm, especially the reverend
ishops.
0. " That in another place of the said Book,
' endcaTouring to shuider not only bis majesty|s
' sacred person and eovernment, but also to
' detract from his royal power, in making U"s
' and canons fbr government ecclesiastical, and
in matters concerning tlie church, he saith,
that the church hath t^ laws from tbe scrip-
tuie, and that no kioj; may make laws in the
house of God; for if they mi^bt, then tbe
scripture mii^t be imperfect.
10. " And further cliarged, that in another
place of the said book, chinking to >elve all
with an expression of liis sacred majt«(y, lie
halli these words following ; < what pity it is
' and iiidehble diabonour it will be to you ihe
' states representative, that so ingenuous and
' ' tractable a king should be so monslroudy
" abused, to the undoing of liinuelf and bu
subjects?'"
The defendant in his Answer confessed the
writing of the Book, but nith no such ill intea-
tioa, as by the said iufbrmxtion is suggested;
his end tliereiu being only to remonstrate cer>
"tin Grievances iu church and state, under
'hich the people luSered, to the end the par-
liament might take them into cansideratran,
and so give such redress, as might be for the
honour of the king, the quiet of Uie people, end
tbe peace of the church.
At the hearing of the cause (June 4), the de-
fendant's Answer was read at large, and tha
aforesaid particulars charged in the In forma tioi
as seditious and scandalous, were alio read out
of tbe Book. After which the court proceedot
Sive Sentence, and did tliere declare, thst it
ently appeared upon proof. That ibe de-
fendant had printed 5 or 600 of the said bonk),
and that in their opinbas be bad committed ■
most odious and heiaous offence, deserving ib^
severest punishnieat tbe court eouU inflict, n(
, CiOO^^Ic
KTAXE TRIALS, .6 Chawxs I- 1650.— for a LUkI
jfullof
865]
iimmjn^ and publiilting a book
pmileiit, dEvilisliaTid dangemiiTi ;LsaeiiuJU9, ui
the scandal o> ibe kint^ queen aud pteis, cspe-
ciaily the Itlthups,
The two Lord Chief Justices hc'wf, present,
delivered tlu^ir opLniuns, that tlicy vvuuld with-
out aii; M^njple iinvt' proceeded nguiuft the de-
feodniu at lor trcnson committed by Iiira, if it
liad come befuce tiktin; and oilier lords ei-
ptesslj sffiriued, tlmt it was liis muipscv's ex-
ceeding grpHt mercy and Koodnesi, tn ii he was
Iirouglic to receite the ceii«ure of tills court,
arad not quesU(ined at aooiber tribuiml as a
traitor.
And (heir brd^iiins by an unnnimous consent
adjiKl^ed and dccrerd. That Dr. Lei)-hton
sbauld he ciiaimitieil to the prison of ihe Fleet,
Uirre to rrmaiii during life, unless his majesty
-shall be gracious! J^ pleaaed to enlarge him ; and
hesfanll pay a liue of 1U,000'. to liis mHJetij's
And in re*pect the defendant hnth hereto-
fare entered into the miiiistrj, and this court
for the rercrctice of that cnlLng, d'ltli not use
to inflkt an V corporal or ignominious punisb-
ment upon aiij person, so long as they continue
in orders, the court d nth refer him to the Hi;;h-
comaiission, there to he degruded of his minia-
liy; and that being done, he sbnll then also
for funlier punishmwit and example to olben,
lie braueht into the pilforj at WeatminsCer, (die
cxNirt sittini;) and ih^re nhippcd, and after his
whifiping be set upon the pillorv fat loiDe con-
TCDient spare, nnd have one of lus cars cut od',
and hit nuse slit, and be braniled in the litcc
wtb a double S S, for a Sower of Sedition ; and
shall then be carried to ilie prison of the Fleet,
and at some other convenient time afterwnrds
bhall he carried into the pillorj at Chenpside,
upon amarket-dny, nnd be there likewise whipt,
and then be set upon the pillory, and have liis
nti.er tar cut off, and from ihence be carried
hack 10 the prison of the Fleet, there tn remiin
during life, unless his majesty shall be graci-
ously pleased to inkrge him.
This Sentence being given toward the end of
Trinity-term, and the court not usually sitting
after the term, unlessupon emergent occnsions,
aud it re<juiiing inme time in the Ecclcsitifltical
rouit, in order to the rieeriida.Tian of the dc-
tendnnt, it irns Michaebnas-tcrm folio wiug
before Qny part of the Sentence could be put In
exccation; but Nov. 4th be was accoidin|;Iy
degraded, and on Wednesday Nov. 10th (being
B Star-Cbamher day) he was to have under-
gone the eiecution of tills sentence; hut the
crenini; before he escaped out of the Fleet,
where he had been krpt a cluse prisoner, 'ind
iaformatlon hereof being given to the lords of
tiie privy-cnuncil, they onlcred this hue and
cry to bi; printed to retake hitn.
A Hue and Cry against Ur. Lei|;htou, by order
of llic Privy- Council.
' Whereas Alciander Leightoii, a. Scoitish
' man born, who waslaiely sentenced by the
' honoorsble Gontt of &at-^haniber, to pay a
iSaii
■ great fine to his majesiy, and to undergo cor^
' piiriU punislunent, fi>r Htiting, printing, and
' publisiiiug B very libellous and scniidalou^
' book against the kin°, and bis government,
■ liath this lltli day nf November escaped out
' of the prison of the Fleet, «liere he was *
' prisoner: these are in his majesty's ranie to
' require and coroniand nil justices of peace,
' mavors, shtrilfj, baildfs, customers, searchers
' anti nlficers of ilie punN, and all other bis ma-
' jesty's loving subjei:is, lu use oil diligence for
' tlie apprehending of thesaid Alexander Leigh-
' ton ; and being apprehended, safely to keep
' bim In cii't'ody, until his mnjcsty shall recriva
' notice therpof, and shall give further direction
' concerning liim. Uv is a man of low stature,
' fair rompk'xinn : he hath a yellowish heard, a
' high forehead, betneenforty and filly years of
i'hia hue and ciy followed bim to Bcdfortl-
shire, nhere he was apprehended, and hronglit
□t;ain a prisoner to the Fleet. Concerning
whose escape, anil eiecuiini- of Ihe Sentence
upnn him aferwards, the bishop of London in
his Diary, on the 4lh of November, makei this
' Lelghton wns d^aded at ibe High-Com-
' mission, Tuesday the 9th of November ;
' that night Leighton broke out of tbe Fleet,
' the warden says he got or was helped over
' the wall, and moreuier professed he knew
' not this till Wednesday noon, he told it not
* me till lliursday ni^ht. lie was taken aj^ain
' in Bedfurdiliire, and brought hack to ih*
' Fleet, within a forlniiiht. Friday Notciik
' her ihe lOth, part of his sentence was eic-
' cuted upon him in this maimer, in the new
'palace at Wcstioinster, in lenn lime; 1. He
' was severely nhipt before he was put in the
' pillory, a. Being set in the pillory, he had
■ one of his tars cut off. S. One si-le of bit
' nose slit. A., Branded on one cheek with a
' red but iron, with ihc letters S S, signifying a
' Stirrer up of Sedition, and afterwards earned
■ buck again prisoner to the Fleet, to be kept
' in close custody.
' And on that day seven-night, his sores upon
' his back, ear, nose, and face being nut cured,
' he was whipt again at tbe pillory in Cheap-
' side, nnd there bad the remninder of his scii-
' tcnce executed upon him, by cutting off the
* other ear, sllttini; the other side of the noiC,
' and bmnding tlie ntber cheek,'
Tlie severe |iuLiishnient uf this unfbrtDnate
gentleman many people pitied, he being a per-
siin well knnan hnth for learning, and uihcr
^bilitie* ; onlv his mitempered leal (as hi*
countrymen then gave out) prompted him lo
that mistake, fi.r which t!,e nc.eMlty of ofTaifs
at Ihal time required this severity from tlie linnd
of tbe mrigittrntc, more than perhaps tite criine
would do in a f,>Iln wing juncture.
Afterwards ihose wlio procure'I his escape
were taken and lirouglil into theStnr-Chamber,
and proceeded against, viz. The defendants
practising with one Leighton, a notable of-
fender, to procure his escape out of ihe Flea^
357] STATETRIALS, BCh. 1. \630—l'roeadi,ig*agaiiut the Earl qf Bedford, Ifc. [36f»
Levingston put off liis cloat, tint and lireeches, niid corainitted Co ihe Fleet during the king'*
Iieiiig nil ot n grej Colour, and Andc.-son his -' ■
dimblet, ntid Ifighton put theirs on, and in thuc
disL;uise tliey all went out of llie Fleet unsus-
piloted; liut were iiltertvards token ag;iii>, and
tor ihesc olT^nce?, and respect had of tlieir
pcnitency, they were oiilj fined 500/. a-piece.
Feedings aj^niiist Dr. Leighcon. Particulnriy,
they resolred, ihnt the line and rorponil pu-
nishment and iulpriaonment bj the sentence
of the Star-Cliaitibcr Here ill^l, «iid that he
ouglit to have mtisfocuon for hii mSerings and
dnniiigcs. Journ. Conim. 31 April IGil."
136. Pioceediiigs in the Star-Chamber against the Earl of Bedford,
the Earl of Clare, the Earl of Somerset, Sir Robert Cut-
ton, John Selden, esq. Oitver St. John, esq. and others,
for pubUshing a seditious and scandalous Writing : 26th May,
6ChaiilesI. a.d. Ifiao. [Uushw. Hist. Coll. Tanner's MSS.
in the Eodleian Library.]
[" The written piece, which gave occasioD (n
these I'roceediii^, v/m a most unconslilu-
tiuiial Projeci* tor advancing the king's Pre-
rogative nnd Ilevenue. It appears to have
been wnc over from Ituly b; ihe bmous sir
Itnbert Diidle)', son of queen Elizubeih's fa-
vourite (he enrl of Leicester; and sir Hobert
is supposed to have been the author ; though
if that was nallj so, it highly reflects on one,
who on olher accounts is imnsmitled to us
tvltli high encomiuini fur Iiis mental endon'
ments and occ3ni^ili<hincnts, as the reader
will see by consulting sir William Dugdule.
i>ee 2 Diigd. Bnrou. S32. It is protiable,
that the proseculion wat commenced, in
order to eiculpntf both James :iiid Charles
" On this matter Kcnnet Chui expresses him-
scllj " Un the same day [May 29, 1030 ; on
which he just before nienlions that the prince,
nf^erwarilk king Charles 3. hid been bornj
u fjQM cnuse was brnu^lil to iientiii^ in the
Suir-Chamber concerning aDI»c<iurse,mtiiuled,
* APtopinliionforliisMBJeBCy's^^ervicetoiiridle
' the Impertineiicy of Parliaments,' uhich had
given so much niFence and jealouiy about tlie
tiiue of the lust dis^oUitinn, ihnt ilie king or-
dered his Altorney-Gencrat to prefer, nn in-
foimntion ngaiust the rcrls of Beilf <rd, Clare,
nnd Somerset, sir Robert Cnltun, Jir, Selden,
Wr. St. John, nnil oiber?, fur siiic-.i<iiiia; (liu
said lihel. 'I lie eurl of Somei'Set by his counicl
pleiided ihnt ihis discmirsc wait L-i(l,er the mme
ihnt wn> shewed him in the tODC oi his attend-
ance upon his late majesty king iames, or had
ilie same things in it, imd llnding no cuiise ol
conccaliii" such a foriner projccr, utiil ima|;iii-
in<( it to be of im scandal to tlxi present k<i-
verinnent, lie Imd msually imparled it to the
earls of Dcilford nnd Clare, who after perusal
thereof, delivered this opinion of it at thcii
next Dieecin^, ' that it wus a fiiut:>»iic project
' ofs'jme brHin-sick traveller, who had made col-
' lertiijns of Some princes in Italy, and other fo-
ivnys
t:.blc in
' of ihis Liiiijdom.' A:id ii|iiin the dcpotitions
<(f sir David Fowlis, it nppcared tlmt the »ery
the Ursr, nitli their respective ministers, troia
ihe imputation of approviivg of the Project,
■ ■ - - ■ ,h«
other
defendants named, except the earl of So-
merset, should lie under a suspicion of couo-
teoincing Propositions so irreconcileable
with iheu- poliacal professions and conduct
at the lime. But,ns there can he no reascio
fur supposiuj that they gave ihejr approba-
tion to such arbitrary proposals, perhapt
they ueie included in the prosecution from a
suspicion of having encouraged ■ belief, that
the king secretly favoured the scheme aud
meditated to execute it. On consulting the
Book intitlcd the " Annals of James and
original manuscript wu penned by sir Robert
Dudley, ut Klirence, and sent over hither in
of king James, by one Mr. Tales, who
I Ui letter to the deponent, and he de-
livered it to the earl of Somerset, and Ihe eari
communlcatcil it to the king. — While this cause
was hearing in a great presence of the noht*
lily and gentry, ilie king sent word to the Lord
Keeper, "that in respecloflhe great joy upoa
the birth of his sou, be should immediately
order the proceedini:s to be stopped and tha
defbodams to be discharged." Accordinglj,
the keeper acquainted the court vritli bis ma-
jesty's special cotninunii, and upon which tiM
«aid writing was ordered to be burned, as sedi-
tious, and scuntlnloua, and the proceedings itera
taken olf the file. And here, thou)jh the pro-
ject was proved to have been a private essay
in a former reign, nnd in n foreign country,
and though the stepping of process bereupou
' of fiivour, upon a proper
thing as a disgrace and a disadvantage upon
die court, knew hour to inunuate as if the Ling
and the miitistry had really formed that scheme
against t)ie use of future pai^iaments, and there-
fore would not luBer it to be eiiiaiined m ttte
bottom."
Google
fS] STATE "raiALS, SChablesI. lOSO.^M ptiblUliins a tedilioiaWriibig. [390
OiKte iho Firelj" we ebtene thai the ao-
dnr ulopU a like coBuructioa, atldiiig ihnC
tlie piece in question waa wiitlen b}i w Kn-
bert Dudlsjr M Florence, in 1613. See p.
SSI.— We shall now lay before [lie reader,
iat the writiiiK vrhicti vraa the ciiusc of itie
PnMecuiion; and seconriljr ihc account uf
dia Pcocoediogs in the. Star-Chambtr; fur
liMb of which we are obliged to Mr. Rugh-
■rartti." Ilarjrave,]
Etinrt frsm. Rviliiorth'i Appeadi* to kU
Hktariati Collectiom, voi. 1. p. 1«.
A PiOPOSITIOK
: Im^
P»B-
ThE Proposition fur jour mnjestji'i aorricc,
cantainetb two porta: tlie oae to Mcute ;our
Stale, and to biidJe the ItDperltnenc;^ of Par-
liaaeMi : the other, lo Increase vour inkjeaij's
Savenue, much mure than it i^.
1. Tottchiug ihe iirw, having considered divers
onus, I find ooac so important to strciii;then
jQur majeity't regal auiboritjt, ai(ain*t all op-
poaiiioai and pracliset of troublesurae spirits,
md lo lirKlle tbeai, than li> foni'y joikr king'
dom, bj having a fortress in evtrj ci'ief luwn,
aad impottaut ^lace thereof, furnished with
DrdaaDce, muiutian, aod faithful men, as the;
tog]u to be, with all other circunistn rices fit for
la he di^Mted iu a buiicess uf tliis nature;
ordering vilhal, tlie trained soldiers of the
cMutrjf to be united in one dependency* nith
ilie laid Ton, a» well to secure tlieJr hcgmiiing
u to succour theru iii any occasion of HDSpecl;
and alto to retain nnd Leep their arms for mure
Kcurilj, whereby ttie countries are no less to
be brought in subjection, than Ihe cities I liem-
ielie>, and conseqiientlj tlie whole kingdom;
joar uiHJest; bmriiig by this course the power
thereof iu your owo bands. The reasons of the
iujgnts are these. l.That in policy, there is
a |mier tie or the people ti; force and neces-
sin, titan merelj by luve nnd affectiun ; for by
the one, tlie tiovernuieiit reiteth always secure ;
hot by the other, no longer ilinn the people
arc contented. 3. It forceih obstinate sub-
jects to be DO more presumptuous, than it
pleaieih jour majesty to pcrmii tliem. 3. That
to leave a aintc unfurnisbed, is, to give the
bridle thereof to the subjects; when, by Uie
cootrary, it rcsteth only in tlie prince's bands.
4. That modern ii^rtrewes Cake long time in
wioaioK, with such charge and difficulty, lu no
ubjecu in ibei>e tipies have means probal)Je
to attempt tbem. 5. That it is a sure remedy
«Caiust rebellion, mid popular' mutinies, or
against foreign power* ; because they ciinnot
well succeed, when by this c^nrtc Ihe apparent
aeang is taken awny to force ihe kin^ nnd snb-
jcct upon a doubtful fortune of n set bntile, ns
■at tbe caiye that mo»ed the ptetendud invo-
son n^unal the laud, altempied by the kii^ of
Spain p the year 1588, 6. Hiat yr>ur ma-
jttty's governmriit is the niorc secure, by the
|>ai>plc'« tuore subjection ; nnd bj ibeir suhjec-
iMo, jour pa'-liomeiu must be forced roiuc-
.ill and pleasure ; for llieir wordi
■nd opp'osiii'iu unporl notliing, where tlie power
is in your msjesiy » own bands, to do with ihcm
what you please ; being indeed the chief pur-
pose of tbis discourse, and the secret iuteut
tbereiif, fit t^ be c-incealed from uiij English
at nil, either counsellors of Slate or olhei-.
For these, unit divers other iicijitj rt-aaon?,
it way he considered in this place, to oiako
your mnjeily more powerful lunl' strong, sonie
orders tie observed, that arc used in lurlified
mitries, tlie government wliarcof iniportt at
ich ns the suites tlkemselves, I meun.in tiiM*
of doubt oc suspect, which are these. Iinprir
mis, Ihat none wear »rms or weapons at all,
eiihcr in city or couiitrj, but sudi as your mn-
jesiy mny th'iuk fit lo privilege, and tfiey to be
enrolled. 2. That us- many highivaya as con-
veniently raoj bedone.te made passable ihroogh
those cities and towns ibrlified, to constniin llie
passeiigeistu travel tiirougliilieai. 3. That the
Eoldiors of fortresses be souieliines cbo^eii of
another nadon, if subject to the same prince ;
but liowsoL'ver, not to be bom in the siine pro-
vince, or witliin 40 orSO.nilts of tlie Ibrtress,
nnd niit to li:i>'e friends or correspond cn(|r iKUt
it. 4. 'ihalatnll thegnlesoCench wnlted tOl'n■
beoppointedol^icers,nuttosu^i'e^ullJ UfCllOWlttJI
tnsers to pass, without a ticket, tlie«'ini(
ubence he c«ine, and whither lit go. And
(hut the gates of each city besiiutalt ni|-ht,a
keys kept by the mayor or governor. 5. Also
innkeepers to deliver the names of all unknown^
passengers that lodge in ilieir Itousesj nnd if
ibey Stay suspicbusly at any time, to present
them to Ihe governor: whereby danftfrous per-
sons seeing iheic strict courses, will be more
wary of their nctioiis, and thereby iiiiHcbievoui
attempts will be prevented. All wirch btini;
referred to your majesty's wise consideration, it
is meet fur me witlial lo civa you some sntis-
fiiction of the <liarge and linie to perlorra »hat
is pur|iosed, thm you may not be discnuraged
in the difficulty ol tlie one, or pralongiition of
iha other ; both ivhich doulits are resolved in
one and die same reiison, in respect that, iu
England, each ciuef tnwu commonly hath a
ruiiiateil castle, «el[ sealed for strenglb. whose
fouodfltioii and stones remaining, may he both
quickly repaired for this use, and «iili little
ciiarge and industri) made strong enough, I hope,
for this purpose, wilbin the space of one yenr;
by adding withal bulwarks and rampiers fur the
ordnance, Recording to the rule^ uf lortificalion.
The ordnance tor tJiese forts may be of iron, not
to diifumish your majesty's navy, or be at &
greater char^ Chan is needful.
To maintain je-irly tbe fort, I make account .
an onlinary pay, S,000 meo will be sutbcicni,
and will riquiie 40,000/. diarge per uniium, or
thereabouts, beine an expence thnt inlcriiit
piinces undcreo, for tbrir necci'sary safety. All
wbirh prcTcntiun, added to tbe invincible sea-
force vour majesty hath airendy, and may have,
will m'ake you liie ni'ist ponetCul nnd obtjtd
liiHg of the Horld : which I could likewise con^.
391] STATE TRIALS, 0 Ch. I. \630.~-Pn>ctedmit agauui the EmtI qf Be4fi»d, Ift. [993
firm by manj eiample;, but I omit tliem for
breriiy, and not to confute joor mtijmy with
too mucli matter. Yoar majetitjr ma<r Had hj
Hie scope ol' tbu dJsuuurte, the means adewed
in eenera) to bridle yoar subjects, thnt in;iy be
ei:ner discontent nr obttinate. So lilieivise nm
I to conclude (he snme inttnt pnrticulnrly,
sguinsc ihe perrericiuiis of yoiir parliament, iis
well to suppress tlint pernicious humour, rs tn
ntoid their opposiiioii>i a^nlntt yuur proht, be-
ing ih« leciind part to be discourecd on : and
tiicrerute huve lir^t ihnu^ht 6t, for belter pre-
vention thereof, io make known tn your inn-
jffiiy the purpose of ■ general Oath your sub-
jects may take, fur sure avrnding of all' rubs,
that may hinder tiw conclusion of these busi-
nesses. It is furtlur meant, that no subject,
Upon pnin of high treason, may refuse the sume
Oiith, containing only matter of niiceinnrp, and
nut scruples in points of conscienre, that mny
give i>retencc not to ho denied. The cfl*ect of
the oath is this, tlmt ail viiur m.-ijesty'!, sulijtcu
do Doknonlrdy;« you Io lie as absomte a king
nlid monarch iritbin tour dominion^, ai is
among the Chri^tiall princes ; and your prcro-
ipliTe as great; uherehyyou may and shall of
yotAel^ by your mtijeity's proclamation, ns
well as other sovereign princes doing the bkp,
ddier make lawSiOrrcTcrse any made, witli any
other act so great n uiouarch as yourstlf muv
do, and that wiihout fiti ther consent of a pailia-
■nent, or need tn call tlieni at all in vuch cases;
considcrin)!, that ihc (Kirliament in all mnlters,
excejitiiig cunses, to he Fcntenced at the highest
court, ought to be subject unto yonr mnjesty's
wiil, to give the ni'girivc or nffirmatire conclu-
sion, and not be cmistrained by tiieir hnpertl-
-._ ._ Bny inconvenience, appertaining "
your mnjesty^ tegnl aothority; aad thia,
withstnudiug any bad pretence or custom to the
eonirary in practise, which indeed were fitter to
be offered a pHnre elected, nithont other right,
^haa to your majesty, Iwirn luiccessively king oi"
ticotlnnd, and Irchiod, and your hei;
cpjved, r.
Ivofvt
Englaij
for eve
jects, but also of the .vliMc world. Hr-n- ne-
cessary the dangerous supremacy of parlia-
rnent's usurpatiori is to be preTeiite(<,the cxani-
ple ofL*wi5lho 1 llh, king of France, dntll ma-
nifest, vtho found the like appnsi:ioii as your
majesty doth, and by his wisdom suppressed it.
And to the purpose liere imeurtcd, ivhirh is not
to put down nlti^f-ther Par^iatacnts and their
authority, being in many cases very neces^ry
Mid fit; but to abridge them so fHr,,ns they seek
to derogate from your [nnjesiy's regal auTliority,
andadvaacKmentofyoiiri^atncss; i he caution
in offering the afurcsaitl Oath, mat rei^uire S'-me
policy, for the easier passage at Cmt, either by
•ingalar or particular tractacion ; and ihit to
near about one time over the laitd,' as one go-
vemrotiil may not know what the other intend.
eth; wi it may pass the easier, hj baring no
thne of combination or opposition. There is
another means also more certain (ban ihis, to
brill); to pass the oath more easily, ns als^ your
praGt and what el«e prUendcd ; which here I
rolling ymir nnijesiy's pnyftt, after your EtNtc
IS secured: wherein' I shonld ulMrve both
some reasonnble content to the people, as also
consider the great expences thai princes bate
novT-a-days, Oiore than in lifDei p:ist, to ilutin-
taii) their greatness, and safety of their subjects,
who, if tbcy Imve fltit wit or *'ill lo considef
their own interest so inucli iiidiflerently, joar
majcHty'i wisdom must repair iheir defects,
and force ihero to it by compulsion ; but I
hope there shall be no sucli cause, in points so
reasonable, to increiisc your majesty's revenue,
wherein I set doiHi divers means fur yoar gm-
cioiis self to make choice of, either all or part
at ynur pleasure, afid to put it in execution by
such decrees and cuatioDS, ai your great Wis-
dom slmll ihink fit in a business of thi« natnre.
Imprimis, the first means orcoune intended
to increase your majesty's revenues or profits
withni, is of greatest canscquenee, and I call it
a decimalion, being so termed in Italy, where
in some part it is in use, importing the tenth of
all subjects estates, to be paid as n yearly rent
to their prince, and as well monied-men in
towns, ns laiided-tnen in (be coimirics, ihcir
value and estates esteemed justly as it is tu the
true value, though with reason ; and this paid
Stnrly tn money : nlnch conrae applied in
nglaud fiir your majesty's service, may b(tv»
instead of sulsidtes, lil'teens, and such lil^e,
which in this case ate lit to be released, fiir tlie
subjects benefit and content, in rccompence of
the said (^rri'ina, nhieh will yield your majesty
more in certainly, than ihey do cainnUy, by
500,000(. per annum at (he least.
Item, that when your majesty hath gotten
money into your hands by some conrsts to be
set do'tn, it would be a profitable course to
eiicrt-aseyour eMlrarfo, to buy oilt all estatei
and leases upon your own lands, in such sort,
ns Ihey be made iio losers ; whereby having yuut
Inmls free, end renting it out to Ihe true valuv,
lis it is most in use, and not employed as here-
lofurc, at an old rent, and small fines, you may
then rent it ont for at least four or five time*
more moiity (ban (he old tent comes unio. So
as if your majesty's land* be already but
QOflOOl. per annum, by this course it will be
ait^mcDted at the least 900,000'. per annum :
and to buy out the tenants estates will come (o
a Small matter by tliv caurar, to make them no
losers, considering the gain (hey have already
made upon the land : and this is the rather to
be done, and the pmeiit course rlnnged, be-
cause it hnthbeeii a custom used meivly t*
coieii Ihc kin».
Inm, nhfiens most princes do receive the
bfnefii of salt in tbeir own hands, «s a matter
of (treat pmfit, because ibey receive it at tl)«
lowest price possible, anil vent it at 4k>uble
gain yeaily ; the siune iwurae used by your
m-ijesty, nc™ worth at least 150,00(M. per
aununi. It it likewba ia other parts, tlmt *1l
3^ i^ATETRlAU* OCttxUMl. i(i3tf.~fi>r pMuking m tedkiamt Wiitittg. [»4
B of lli0 \md, eiiher in
pntMc boDSM, stops, or pdblic markeia, thoald
be viewed Co be juM, and sealed ouce n ^ear,
fuiyiiig lo (be prince for it; which in EnghiBd,
applied to ^our niBJ«stj, with order (o pnj Hd.
for tlie 9«itling afeneh snid weight ir measure,
wonld jieM ucur 60,000/. per Minum.
Item, though at) countries pnj ■ ptibtlla for
transpoirtttion of cloth, nnd w IJkewfse in Eng-
laod; jet, in !4pKin, there is impost upon the
wwrfs, which ill Eag^od is to great ■ wealth
and benefit to tbeiheep-mastcrs, aa ihe^majr
well paj joa bt. per cent, of the tnie i alue nt
-ih« stiMni^, which I cnnceire may be Koitli
140,000/.
in England b« eieessive, in yam subji
judice : it were betltr far your mnjeiity to niake
use thereof, itnd imiiose on fdi causes sentenced
with (he p»r(y, lo pay 5(. per cent, of »he tnie
viilue that the caose hotli gflined hirti ; and for
recomp«nce thereof, to limit all lawTers fees
and lettiD!^ whereby the subject shall save
more in fees and dinrges, than he •ivelli to
yoor majesty in the gnbtUa, which 1 believe
may be worth, one jeiir with anoiber, 50,000/.
Item, whereas the inns and victual linR-hou-es
ia EoglEUid are more chargeable to the trai-el-
im than in other countries, it were gond fi>r
youtnmjesty to limit them to certain onlinaries,
aod raise besides a large imposition, ns is used
in Ttiscany, and other purls ; that is, a prohi-
bitiiw alt ions and lictuRlling- houses, hnt such
at s&ill pay it ; and to impose apon the chief
inns and taverns, to pay 10/. i-year to your
majesty, aud the worst SI. per annam, and all
ale-houses 30i. per annum, mot« or less, as they
are in custom. Of all sorts there are so mtiny
iti England, that tliis impost may well yield
100,000/. per annum lo your majesty.
Item, in Tuscany, and othtn- parts, there is «
gahdla of alt cattle, or flesh, and horses sold in
markets, paving three or lour per cent, of wluit
tfaey are sold for, wliich by coiijecturo may tie
worth in Ei^end, 900,000/. per annum ; usinf;
d»e like cattom npon fish, and other victuals,
(bread lacepted^ and for this cause, flesh, and
flsh, and victnais in the markets, to be prrsed
and sold by weight, whei«by ilie sul;iect sareth
more in not iMnng cozened, than the imposi-
tion impaireth them.
Itan, in Tosctuiy is used a tmniion of T per
cent, apon all Blienation of lands to the true
Tlilue. As also 7 per cent, upon all dowries,
or nurriage-moftiei. The hke, if it be justly
DMd ia England, were worth at least 100,000/.
per ammni ; with mniiy other taxations upon
meal, and upon all merchandises in all tovros,
B» srell as port-Cowng, which here I aait, with
divers others, a> not so iii. for England. And
'n satitfacuou of the lulrject for tlieie tan
yoar majesty ma? be pleased to release them
ofward^nipt, ami to enjoy all their estates at
IS yean old ; and in the mean time, their pro-
o be ptTservetl for their own beneEi, ___
■Imi in forfeitures of estate by condamnaiior
yovT majes^ tarn] tdtMC Dm nbjecr, as not t<
alh>w the conuci oi
tak* the forfcsiare of thew lands, but ibeir
goods, high (reason only eicrptrd; an4 to
' '■ laxytrsin caw of lite and
not to he condemned withoai
with such hkc benefit, which
jmpurteih nmch more ttici; good than alt the
taiatioiis named can prejudice them.
Item, BOioe of the tonuer tasations, 'used io
Ireland and in Scotlaiiil, as may easily ha
brought about by the first example ilieienf
used in England, may very well be made to
increase your rtivciiue there, m«re than it ia, by
200,000/. per ann.
Item, all oltices in tlie land, great and small,,
in your majesty's grant, may he granted, ttiih
condition, to pay yua a p^rt yearly, accordiae
to tlie vatne : tlii), in time, may be worth, at I
conceive, 100,000/. per annum : adding also
notaries, attnrnies, and such like, to pay soin*
Eroporlion yearly towards it, for being allowed
V your majesty to practise, and prohibiting
ef>e any to practise in such places.
Item, to redijce your majesty's bonsettold to
board-wages, ns most other priuces dd, reserv-
ing some few tables ; this will save yoer majcaty
00.000/. per annum, and ease greatly tlie sali-
ject besides, both in carriages and provision,
which is a good reason, that your majesty in
honour might do it,
Item, I know an assoreil course in yoer ma-
jesty's navy, which may save at least 40,000/.
Eer actiom, which teouiriiig u whole discourse
y it»elf, 1 omit ; only promise you to do it,
whensoever you command. ■*
Item, whereas your- majesty's taws do com-
mand die strict keeping of fn^ ting-days, jon
may also prohibit on ttiose days to eat efgs,
cheese, and white-meats, but only such as are
cnnleiited lo pay eighteeu pence n year for ibe
liberty to eel tbem, aud the belter stirt ten
shillings. The employment of this may be for
the dellenca of the land, in mviniainmg' the
navy, garrisons, nnd such like, mnch ofler the
fashion nf a Ctusedo in Sp;iiii, as yoor majesty
knoweth, being lin.t begun thi^c undxr tlie pre-
tence (o defend the Innd agaiiKt the Moon.
And the tame used in Lnglantl, at afotesiOd,
may very well yield, one year with another,
106,000/. without any di^ust 10 any, because
it is at every one's clioice to give it or nn.
Lastly, I have a cunrse upon the Calhoiict,
and very safe for your majesty, being with
tlitir good-liking, as it may tie wrougtit, 10
yield yon presently at knsc «00,000/. per an-
num, by raising a certain vaJue upon their
lands, and some other impositions ; which re-
quiring a long discoarst by itself, I oill omit it
tiere, setting it down in my instructions. It
will save your tnajeaty at Icait 100^000/. per
annum, to make it pain of death and coaftsca-
tion ofgoods and lands, for any of ibe olBcen
to cnzen you, which now is much to be foaicd
they do, or Mse tbey could not I>e so rich ; end
tliat shall fittd out the cozenage. Here i* pot
meant oRicen of state, as tlie lotd tiauuraTf
&c. bfidsoffic* of the oowa.
3W] ^AT£ TRIALS, 6 Ch. I, 1 fHO.—Proctedw^ againu the Earl if hnffiird. tfc. [390
farouKhc to bcarinf; ia the StaivChamber, cod-
cerning a Discourae, intituled, ' A PropouUou
' for Ins Majeaty's Service to bridle the Iiupcr-
' lineDc; of Porliantents.' Wberein the king's
Attarnej-General was pluiiitilT, llie enri ol'
BMltbrd, ihe earl of Clare, the earl of Souienel,
fir Kobert Coitoii, Jolin Selden, Oiivcr St.
John, and athe^rt, defendants. Here now fol-
luweth the Ansneis of the Defendants, nod the
Judgmeacof the court thereupon, viz-
After the kiug'a Attorne^-Geaeral opened
the aforemeniioijed luformation, the Aadwer
of Robert earl of Someriet to the said Infoi^
luBtion, was also opened by his council, to ihi*
effect 1
That ihc Discourse, as he believed, was ei>
ther the eainc that was shewed him in the lime
of his attendance near his late majesty king
James, or had many aC Lbe lanie tliinu in it :
and finding no cau$a of concealing a riapmi-
[ton made iu a roniier king's time, and hating
no appfcliension, that tcandal to his majeM.y,
or the present govcrument, might tliereby hap-
pen, he casuicUy imparted it to the earts of
Bedford and Clare, tvlio, after perusal tberoof,
delivered their opinion conceruing it, at their
neu meeting ; ' that it was is pbantattic pro-
'ject of some brain-sick trsveller, who hod
' mnde collections of some princes in Italy, and
' otlier foreign (tBte», no »ay suitable to the
' governroent of Ibis kingdom.'
And further said, that, beside* ihntone time,
there wa* neier auy conference, nor any pas-
aage by letter or otherwise, betniit them con-
cerning it, or with any other person, and de-
nted that lie either contrived the Piopotitiiin,
nr knew of the contriving thereof, or ever ima-
gined that his majesty would innovate the au-
tient form of goverument, dispose oftlieeitatea
of Ills subjects wttliout their cuuseuts, make or
Tbe MUD of all this account amounteih onto .
two millions, or IfiOOjOOOl. per nan. : suppose
it lo be but ana luillion and a half, as anoredly
jMir majesty mny make by theie counes ael
(town, ]ret it is much more than I promiaed in
my letter for your majesty's serTicc. Besides,
Bome suois of money in present, by the courses
fjUowingi imprimii, by the prince's marriage,
to make all the earls in England grandees of
Spain, and principi, with such like privileges,
oad to pay iO,OOoL a-piece fur it. S. As ^»o,
if jau make tbein fccditaries of the tonus be-
longing to their earldoms, if they will pay for it
besides, as they do to the king of Spain in the
kingdom of Naples. And so likewise barons,
to be made eails and peers, to pay l9,CXX)f. a-
piece, I think might yield 500,000^. and ublwe
them mora sure to his majesty. 3. To make
choice of !00 of the richest men of England
in estate, that be not nuhlemen, and make
them titillate, as is used in Naples, and paying
for it ; that is, a dnke 30,0001. n marquis
15,000^. an earl 10,000^. and a haruo or vis-
count d,000^. It is to be understood, that the
ancient nobility of barons, made earls, are to
precede iheie as peen, though these be made
marquises nr dukes; this may raisr a million of
pounds and more unto your mnjesly. To make
genllemEn of low quahty, and franckliiis, nod
rich farmers, rsquires, to precede them, would
yield your majesty alio a great sum of money
m preseiir. 1 know another course to yield
yoor mapesry at least 300,000/. in inoney, which
OB jet the ti'ne serreth not to discover, until
jaur m^esty be resolved to proceed in s{ime of
the former course:, which till then I omit.
Other courses, also, tijat may make present
monej, I shall study fur your iiinjetty's service,
and, as I find them onl, acquaint yoa withal.
Lastly, io conclude nil tliese discourses by
the application of this course used for your
profit, that it is not only the means to make
KD the richest king that ever England h.-id,
t also the safety auguieuied thereby to
be most secure, besides what was shewed in
the first |iart of this discourse ; I mean, by
the occasion of this taialion, and raising of
monies, jour majesty shall have cause and
means to imploy in ul places of the land so
many officers and ministers, to be obliged to
you tiir their own giH>d and interest, m nothing
can be attempted against your person, or royal
state, over land, but some of ihcm shall, in all
probability, have means to find it out, and hin-
der it. Besides, tliis course will detect many
disorders and abuses in tbe public government,
which were hard to ba discovered by men iu-
diffcrent. To piobihic gorgeous aud costly
apparel to be worn, but bj persons of good
quality, shall save the gentry of the kingdom
much more monejr, than they shall be taxed to
Ciy unto your majesij. Thuswithall lake my
ave, and kiss your gracious hands, desiring
pardon for my error 1 may commit herein.
Ettractfrom Ruthworth, -eol. 2,p. 51.
OtyttrACh of May;^le30,agieiit cause wu
garrisons iu liis principal dties
ann luwiis, or put iu eiecuiiun any partof tba
said discourse : and tiic reason nhy lie did nut
present the discourse to his mujesij, or some of
the lords of the council, or some magistrate,
was, because he did not cunceive the same did
in nny son concern llieiinieoriiisiuajist^'sgu-
vo-iiraenl, but was contrived iu some former
lime, us appeared raaiiifutlj, by the particulars
therein contaiotsd; and that about IC or 17
years ago, sir David Funics shevied him the
priiject, lo wlaim he replied, ' Tiiai lie was sa-
tishud no use could be mutle thereof, and so be
redelii-ered it, nnd concluded (hat llie divulging
thereof was iii his opiiiiun pardoned by the ge-
neral pardon granted upon bis now majesty's
The rest af the Defendants denied any ilieir
contrivance thertuf, alledging the author, a*
they were infoniied, was living beyond sen,
and that they otiglit not ta bu qnestioued (bt
it, being writ in the lime of king James, and
not in refereuce to his now majesty's gnvein-
ment, denying iliot they had tbe least tliought
or intentioD to scandalize cbe government; for
that tbcy tejecictl the discourse at soon as ihe^
i„.. „Gooslc
397] ETATE TfilALS, 6 Chailbs I. lesO^Jbr pabiukmg a teditwut Writing. [SOS
rrad it, ■» ■ fooliih and impertinent issue or
■ome pngecting brain ; and thej averred their
deteUBtion of inch ■ pnijecc, and that they
bore lojnl benrtt to hu niRJrttv, and blessed
God for the happj and peaceable govcrniuent
ander him.
After the publication of the Caiue in order to
m bearins, it appeared by the Depoiitiom ofiir
D«*id Ponies, that he received tlie said Writ-
ing from one Mr. Yates, in the lime of king
James, whu brought it Irom sir Robert Dudley
at Florence, togedwr wilh a Letter, desiring
him to delirer it to ibe earl of Somerset, that
be might communicate it to kinf James, which
was done acconlingly, anJ that in his hearing
die enrl gignified a dislikb thereof; and tliat he
received Tt back from the earl, being the oriei-
Dal, and kept it by him till the lards of the
eotindl sent for it, aud that he made no copy
(hereof.
It appetuWl also hj the Depositions of oiber
witnesses, that this Discourse, nine yean ago,
(ra* bought b}r them in Little-Britain amongst
other manuscripts.
So this Cause coming to hearing, a great
presence of nohility being in court, the ntior-
ney-general opened the Charge. But before
much procetding, his mnjesty sent ttord unto
the lonl keeper Coventry, then in court, that
ibe queen Has brought lo bed of a son, and a
private messai^ also was delivered to him from
the king; whereupon the Lord-Kee^r declared
in court, that his most sacred majesty had ta-
ken thii matter inlo his most senoui conside-
ration, end nihough the same was of so hi{h a
nature, as it wm necessary to he brought in
question, (being contrary to many laws and
•taiutei, and the common law itself) j'et his
majestj balancing the same in the scales of
justice .ind mercy, the Author of the Discourse
being discovered ID lire beyond the seas, fuiind
these Defendants rather fitting to be objects of
his mcnrv, than justice, they being some of
them noblemen, and tuch ns his majeatj did
and doth irell esteem and like of, in his royal
opinion : and that his majesty was the rather
iucrlined to eicend his goodness, in regard of
the time; it baring now pleased the great jus-
tice of heaven to Una his majesty and his k mg-
dom with n royal i»ue of bis body, a liopeful
prinoe, the great joy and long expectation both
of the king and kingdom.
Upon this declaration of the king's pleasure
the Lord-Keeper made known, that the coort
by his majesty's special command ivas to pro-
ceed no further in tlie hearing of this cause ;
but ordered the Project, ur Book, to be burnt,
as seditious and standulous, botii to his ma'
jestj, the state, and goverunieot of this king-
dom. And ordared the Proceedings Lo be
Uken off the file.
An Account of this Propusition is contained
in n volume in the hand-wriiiug of archbishop '
Sancrofi among Tanuer's MSS. in the Bodleian
Lfbrarj al Oxford. It begins with the Attor- '
ocy-Geaeral's lufonnation a* foUowa:
" To the King's most excellent Ma'ty.
" HiunblycoaiplayningeDformelh your most
excellent mu'ty, sir Rob. Ueath kt. ' yoar
ma'tjts Attorney- Gen'all, that iihereas yoar
sacred ma'tie ever since your linppy accesse to
the imperiall crownc of this realm hath gov'ned
your people with soe much justice, and mode-
ration, that all your good subjects do beare
tfaat rcv'ence and tove tu your sacred penion,
as is justly due to so gracious a sovcraigne;
and your ma'ty, next to the service of Almighty
God, and the mainteuBDcc of hit true religion,
hath preserved and maintained tlie ancient and
fiindamcntall laws of tbit kingdom without in-
novation : Yet so it ii, may it pletue your most
excellent majesty, Tbut some malicious per-
sons wlio areas yet uuknovkne to your said At-
torney being ill affected to yotir ma'ly, and to
your happy gov'nement, and intendiug to raise
false scnudaOs, and seditious rumours agaii»t
your ma'ty, and your gracious governem't, have
of late wickedly and seditiously framed, con-
trived, and written, a fulse,seditiuus,itnd pesti-
lent ditcuurse in these nords tbllowing."
Then follows the Proposition as printed
above, ending with a formal request to the king,
to call on the defeadancs fur trial, signed by iIm
Attorney-General. Then follows :
The Answer of Francis, Earle of Bedford,
one of the Def ts, to the Information exhi-
bited against him, and others, by Sir U.
Heath, kt. his Ma'tJes Attorney-Gen 'all.
Thesaid Deft, saving, &c. with all.dutyand
thanltfiilinesse, dgth acknowledge v't his ma'ty
hath with greatjustice and moderaiion governed
his people, for which ansong the rest of liit lov-
ing Bubjects, this deft hath aiwaies had and
ever shall have a speciall love and revnencc
□f his sacred person, as due to so gracious a
sov'aigne. He doth also acknowledge bis
ma'ties gracious care to preserve and mointaine
t)>e ancient, and fandamentoU lawes of this
kingdome, without innovation ; insomuch that
the said deft nev'r had thought, that hts lUott
excellent mqesty did entend to innovate his
Innea in any thine : for liis gov'aient hath been
so moderate as this deft hath olwaies conceiv-
to his people,
at all against his mu'ty, or his gov'ment. And
ing the discourse in the information
led, the said deft siiith that he did not
name, write, or contrive the same, nor doth
know who did name, write, or contrive the
same, but tor declaration of the def t's l:now-
ledge and thau^bts concerning the same, saith
that ho never did see or lienre tlie said discourse
until the month of July or August, in the 5tli
year of his ma'ty's happy reigne, about which
time, a writing conteymng the said discourse
was sent to this deft, he then being at his
house in Wbobome in Bedfordshire ; which
was sent, as the deft was informed, from one
Hr. Oliter St. John, of Uncob's lone, who
999} STATE IWALS, SCa.l. l6iO.—I*ivM!ditg$i^aiuiaeEarti^Si!^<)r4,l(e. [4(V
then and forraerl;^ '^*> '>'' 'his dert'a.counceU
ill tits Inn liusuiei«e, and vritliio two or thne
w^ek* after, ibe a'd Mr. St. joha repiireil lo
tliB def't's liciu'«, *n(t tlierc tins deft and tlie
»'d Mr. hi. John, had >i>ine speech and con-
termce concerning Ae siiid aiacauriic, upon
which contcrence ihe t'd Mr. St. John did dc-
chne lu tJiit def't^ \\iM lie had the raid discouise
lr<nn i'r itiib. Cotton, ki. uad baroneti, and
ihni he was enfurmed luid tuld, tliat it wai
HrilCen nliouttlielSihyt-arof the lute k.. Jnniea,
of titfussd meiDurv, which this def't emily be-
lieved, Ibr that l« observed it could not he sp-
phed to hii> ma'ties tioM, j't tnv it, u * ell for
that there is in tho lame diKourie meation
made of the kiat^'s son the piioce, tu be married
fur raising uf preseat tnouiei, at for some other
1iii»3^» tlierein, n'ch thia def't doth itll be-
eeie ; neither did this deft think, or Sleeve,
ur cuii be perswaded, that it was presenied, or
meant or intended tu be preseaiod to bii gm-
ciouB ma'ty, j't now is, ror that he hath ob-
aerved his ina'ties nvenneu lium such courses.
And he this def't further s'lh that he this deft
hept the same ditouno by him, till die end nf
Sept'r or beginning of Oct'b'r in the said year,
at w'ch time this def't repaired to his house in
the pariiih ofChiswick in tbecouni; of Middle-
Mi, in w'ch parisli thi: earle of Som'seU, and
other of tlie def ts named in the same ioforma-
ijaa both then and befure dwelt, and after tome
time of this def I's being at Cliiswich afiiresnid,
iiiceun^ with the 6:iid earle of Som'sett, and
conferring of divers matters happening in such
time, as tlie evte of Som'sett had been in grace
and favour with bis s'd late nia'iie, among
other ipeechei, ibe; had camnnmication of
sGv'nIl wnys then propounded both fur preserv-
ntinit, ns also for increase of hi: s'd lute fQn'ties
revenues. W'ch caid earle of Som'sett then re-
luted, thai div'se ivaiei had been nft^d uuto
I him nboDt those tinies, and amaug niben he
tnmiiioned come tike these waiei f'c ore ex-
pressed in the said discnurae, in the mlormation
•specified. Wliereupon this deft did aske of
hisl'ds'p, whether be had seen a discourse Eeocl-
irig lo such purpose, mentioning an army and
(taBelki, end he nniwered, v'C be had then a no-
tion of some such matter, &ut did ant then per-
'fectl^ call the particulari thereof to mind, but
if he might Ke it, he should then better rentem-
bcc it, Jiod thereupon tbas deft diil imd, or
dolir'd uD<o Mm the taid copy, w'cfa was sent
unto ihtsdaft, n'cb vtbcD.the s'd eaile had
read, he returned lu this def't, nnd told him,
tbut he icmeuihTed that in the time of the s'd
late king, Ueadii, or Propositions of like efi'ect,
had been tendred unto his I'd'p. Ai>d ttiis
dtf 'l s'th ha nei'r did write, or cause any tuple
tliereof lo be qrrmen, i>or did I.e co'municate,
ilbew, or publlth ibe same oiherniM tliiin u
aforesaid, snvinK to wmr of tlie I'ds of his ma-
jesties must ho'ble privy-counceil by ilieir co'-
mand in this AJ'ch'nias ivme. And the laid
def't aaitb, t-hat the said discourse doth nai
coooerne the pceseut lime of bia ma'ly, nr his
fOv'Dcm'C; neillier did lie ev'r say, nJbime, or
believe, that there ev"!- wm ani pnrpnie to in-
t'taine it : neither did this def t disprme, or di-
vulge the same, to the intent that the same, or
any thing conteyned therein should be divulg-
ed, or dispersed, as if the same had been iulir-
tamed by bis most cuceilent ma'ty, or by any
other. Of with purpose to put in eii^culio', or
to raise fean, or jealousies in nny w'lsoeier, or
that his sacred mn'iy had any purpose lo alter,
or iunavate any Inws of this kiugdmn, or the
ancieat mAiioer of the gov'nein't thereof, or to
draw tbinva Co be disposed of at bis will, or dis-
pose of tlie states, revenues, or goods of his
ma'ties suhjccie ; or to make or repeals sta-
tutes by his ma'ties proclamation, or that lie
purposed to place, or nuintaine gnrrisoastH'
ibrtiGed places for any (uch end, as in the s'd
iururmation ia declared, and be is faliy assured,
y't his ma'ty ner'r did, nor will gire the least
iniertainment to any such design, and the said
def't confesaetb, y't he fjid uiit shew orddivr
the said wrigbting to Jiny of hii ma'ties dk»1
ho'hJepnvy-councell, or other mngutrateuthet-
wiie than as n(i)r«b'd, for what Jqu. that] be
did not, nor yet dnih conceiTe, f wt it had an;
relation to bis ma'ties cov'nem't, or that be
e^er had purpose, or dispMtion to gite care l»
such profects, or devices, or that any wuujd so
behave. And as lo all and every the miede-
jneauo's and offences in the iiiforouitioQ laid to
the charge of this deft, be isiheieof not guiily
in manner and forme, as by the said infcinnn-
tiun issupposed. WchiaiBLtera the said def't
doth, and ivill .arer and prove, as tins lia'hle
court shell award, and prsieth to be dtsmisted
without fuitber UUnding, >ecvHe.af tlwjaJd
itizecoy Google
Ml] ETTATE TKIAI^, 7 Chaklbs I. 1631.— 7^e Tiiai qfMavin Lord Aadliy. [«S
137. The Trial of Mervin Lord Audlet, Earl of Castlehaven,
for a Rape and Sodomy : 7ChaelesI. a. d. 1631. [Sllushw.
Coll. 93. Hurt. Rep. 115.]
TbEEE were three Tndictm«nU founH at
biliiburj in Wiltshire ajpiinit the rari, the
Weilue^B^ preceding Eaiier, before tlie Lord
Cliief Justice Hjide, the L. C, J. RicbardKon,
and baroD DenbaiD, Jofticei of Auize for tliut
rinaiii, and special commiuioDett in tlist mat'
ler. One Indiciment wiu for a Rnpe upcm his
uvra wife; for holding her \ij force, while one
of hi* mioinng furcioty, >gai[ist her will, had
catnal Lnnwiedge of Iier: ao.diHthe wns in-
liicied u Pr^ient, Aa.riliatu nnd Con/brlou*;
1 tbcTcfoie a principal. The other two In-
dictneott were tor Buffer; wiih a miui.
* Brition, c. 9- Mjt, that MXlomite*, lorct-
icn, Bnil suioe other offeDdera, were to he
bamed. The Mirrour m^s thej were to be
buried klLre ; in conformit; with nhirh Ld. Co.'
3Idn. c. 10, quotes Fletn b. 1. c. 3S, where I
cmoot find «n; such maitfr: however, it
■eema lilcet; that afterwards the; had ceased
10 be punished capilallv ; which occasioned the
Uatute of ti Iku. 8. c. 6, paued iu the year
1534, which was about six yeais after H. 8,
bad began upnn the suppression of MoDasteriei,
(See 14 Rjmer'a Feed. 95B] and about the lime
when Che general suppiestiun of them seems to
hire been rebuked on. About a year after-
■ardi (1536) the lesser monailcrieg were snp-
pressed. Aod in four jears more (1S40) the
wor^ #as completed hy the final dissolulioii
of all m^ner of abhiea, (iriories, monasteries,
Itc. and (lie tratiifer of their revenues and
estates to liie crown, by st. S 1 H. 8, c. IS. See
1 Cobbtct^ Purl. Hist. 596, SS7, 1 Ropin T83,
1107— 8S1. fol. ed. and Burnet's Hist, of the
Retbrmatiuii. The st. 35 H. 8, c. 6, wse re-
pemled by iliegenernl st. I E. S, c. 13, nod by
S R. S. c. 89, the crime was made felany with-
out benefit of clerfiy, but itithout forfeiture of
lutds or goods, or corruption uf blood, which
St. of 9 E. 6, c. 89, was repealed hj st. t Mar.
~ '., so hnUi acts Stood repi^ted until the ata-
i 5 Eliz. c. IT, by which tire whole act S5
li. 8, c. 6, is revirni and re.«nBCted. Mr.
Biirrin|ion in the first edition of his " Obserni-
l t<on> ou the Statutes," p. 91, " Astisa paiiis et
1 cereviiits," made a reinarknble mistake lu quot-
\ '"E ^7 memory a passnge trom Tacitus. He
eems to have thought it liVely thnt ilie custom
'' pelting crimiuali in the pillory wa» derired
m l>ie H
" Infair
uto ac coDo Bspereunt." The p --■,-
ich lie bad in his mind Ts doubtless the follow-
; iu Tacitus de Mor. Germ. s. IS. " Dis-
ctiopcenBrumexdelicio. Proditores et trens-
ns aiboribu) suspenduni ; itjimyot et ini belles
cvrpore infames cceno ac pntude, iiijectS in
ter crate, inergunt. Divertitat supplicii illuc
piciti tanquiini sceleraojtendioporteit dum
liuniur, fiagitia abscond!." The passage in,
VOL. Ill,
The Judges, on Friday morning befure tl>c
trial, being tent for, all but Ueiiham Leitig niPt
(U Seij'eaiits-lun in Fleet-street, thFse Ques-
tions were proposed tliein by sir Robert Heath,'
the king's Atiurncy General; a Memorial of
which a learned judge, sir jamts WhitlocL,
one uf tlie eight hereafter mentioned, set down
in writing; to the effect following.
1. Whether a peer of the realm mi^lit rdts
his Trial hy pren, niid plead he will be tried
by God and the couiitijf Anne. lie might
nut ; fur bis Trial by peers was no privilege, but
tbe law declared by Magna Chnrta : which 11*
be would not pleati to by a trial of his peers, it
1. Wbeihera peermi^ht challenge hispeers,
ns in tlu! case of common Jurats? A«iw. He
might not, (which I think is so, said thatjudiie)
because they were not upon their untli, but
upon their homiur, and a challenge is tried
whether he siands lodiDerent, us unawum. ,
3. VVherhrr n peer might not have, couiistl
any more thttn a coniinoner? Antai. if matter
of Inw appeared, he might; not for inn tier of
fact. — Certnin Examinations liaving been tiiken
bj the lords without an oath: It was resolved.
Those could not he used until they were re-
peatAl upon oaih, unless of the party to be
tried ; which might be read without nii oath.
4. Whether Ae Wife in this cuee might be
B witnets Kgainst her husband for the rape i
AiaK. She mi);ht : for she was the party nmng-
ed ; otlierwise she might be abused *. In like
manner a villain (vas-sai) might he a wiEitpss
against his lord in luch cnses.
5. Whether, if he stood mule, he could de-
mand his dergyP Atiia: If be stood t mute in
tbe case of lUpe or Buggery, he wight hai e his
clergy] in etrlier,
>. 14. p. i5V, is " Le mortal
" '8 le roy celestre de sodomy
ver tes peclieurj touts vits
the Mirr ,
pechS dc majesty v(
soy fomist per <
pnifond en lerre ; issint que memoire soit re-
stminf pour ia erande at>omination del tiiit."
The words in Brittun are, " Soit enquis de
ceirx que felonitement en temps de pees eieiic
autre htees oa autre mesons ars. £t ceux que
serrount de ceo atteynts snient iirs, issiut que
eux soierit punyt par mesme cele chose duuut
ilspechercnt; et mesme eel jugement event sor-
l The statute of 85 H. 8, c. 0, in case of
Buggery, and of 13 Eliz, c. 7, in case of >
R^pe, tuke away Clergy only frrim tucli ai are
convicted by verdict, pmlnwry, or contasion s
403] STATETRIALS, TCharlesI. IfiSI.— 7^1Vul4^Jlf«t>ML«r4(j4i>^. [4M
tn hU clergy would be & saperaede u to all in-
dictmeiils ufoQ'encrs within clcrgj, out of ihiNe
nltlioul, by that statute: For by (he cniDinoi)
law, lie thnt was admitted to hi: clerj^i wudis-
rharzed from aniwaring any otlier olicnct ; for
by indictment ofthat Uw be was taken oetof
6. Then ifhe might not be put to s trial on
the other IndictiDHit, might not be be for ■
Intrr Uti^ery, and he driiieJ the clergy t Antbi.
On that he might by Ifl Eliz. 7.
7. Whether, in cn^e one &iond mute, Eoi-
dence ini^ht be opened by ihe court'i com-
maud- concerning the fact, tbougii the delin-
quent H'us Co be pressed to death for liis con-
tempt? Attsw, 'Uutt was a matter which Uy ill
the discretion of ihe court.
8. Whether in caws wlierein cleijy was al-
lowable, the pitriy might pr:iy it before be an-
swered, and deny to ansner olhetwiie? Ambi.
Tliis wa<i a confession.
9,. Whetlier in a Rape lltere must be pene-
tration ? The Answer ivas in the affirmative.
to. Tlie r>risoner having petitioned to be
bailed, wlielher it might not be granted ? Aitsvi.
'I'lie liini;, as kinj;, was to advis** about it ; The
Judges actjuainted the Lofd Keeper he could
not injustice require iti yet he might be bailed
ei gratia, ahicb was not fit in that adiovs case.
At a second, meeting of the Judges in Ser-
jeanCj Inn, there were other things coiisiderod
of couceriLiiig this miKter. They made a dif-
ference between But:^ery and a ICape, in point
oYhnvmi; the clcrjy it' lie stood niutf; fiirit wns
nigiieil lie might have his clrr^y if he stood
mute in a Rape, but not in Bugitery; becau^e
by the statute U3 H. 6, Bu;^ery iins made fe-
lony, which by the common law was nfit. And
in Oie vrry creation of (he offence, deri/y was
taken aiMv ; whereas clergj' lay Ibr u rape until
it was (should be) taken away by statute.
It WHS concluded the l.urds might eat and
drink be tor
>«y wf
s aereeil, but tliat iliey
their Verdict: Thnt iliis appeared out of the
lord Dacrei of Greystock's Case*, who was
tried fur Treason, and acquitted by his peers in
36 lien. B. It was agreed by the JiiMice* in
that case of ihc lord Dacres, 1 luit lerdict could
Out be given by a lesser number of lords. iban
12 ; and (hat if 1'i were for the kin:;, and 13
ibr the prisoner, . (he prisoner should he ac-
quitted : 1'bat in an Appeal, if the Defendant
•hould be mute, he should be hiiii|{ed ; and it
was an Attainder, it being not within the st«'
tute of Wet t minster, eap. 12. Ue Peine fort
et Dure.t No more wns Ireason.
llwjii also agreed. That a lord of parliament
Tins within the statute of Westminster 1, in ca&e
ct' Felony, and should bt pressed to death.
Farther, That if the lord Audtey should have
his clergy upon his beine mute, yet be might be
tried upon the other Indictments of Rnpe and
Bugsery, and sliould not have his clei^, by tlie
statute of 13 lUii, because the admiltini; him
which do not extend to those who stand mute,
1 1 Co. Rep. 30. 6, Poulter's case ; hut bv the
3 et 4 of Wil. et .Mar. c. 9, all who would be
eicluiled in case of coiivicliun by verdict or
confession, are excluded in case of standing
• Kelj, 56.
t S. P. C. Lib. 3, .
eo.
tha urdinarj, whose prisonci he wu
aU his Ufa after.
It was resolved, from the lord Dacres's Case,
I'liat the Lord Steward, after Verdict ^ten,
might take time to advise Upon it, for any point
of law ; that his office coniinued to him till fan
Judgment and Resolu(ioii ; and it was but a
commission pro hoe viee notwithstandiag.
The ArIiAIOmmekt.
The lord Coventty, IjJrd Keeper of the Great
Seal of England, was appointed Lord Hi^
Stcwnril for that day ; who, baring ordeisfor
tlie said Trial from hu majesty, gave directiuns
for tJie same.
The lords tbe peers took (heir places abaut B
of the dock in the morning, and were seated
on iienchea on each side of ^ large-table, co-
lereU with green cloth ; and below tiiem ■«1
(he Judi^es plnoed, and (he king's learned couiv-
sel, and the Afficen of the couit. And baTing
disposed of tlientelres in tlieir several pUcrs,
the I.Ard Steward aboiu Q of the clock eutered
the hall nncotered, with seven muces cairied '
before him by seven Serjeants at Anns.aodwRS
attended upoii by sir Jubn llutvgughs, i*iter
principal kins at arms, and Mr. James Mn-
oell, u>her of the Uack rod.
Atler the Lord Steward had laluied all dw
lords tbe peers, (who saluted liim again) he pre-
sently usceiided tlie &tate ; and bting^seatod ia
the cliair, he was presented with his majesty's
Commission by one of the raasiers of the Chan-
cery, which bore date the 13th of April, IGSl.
After he had received the s^id Conuniision,
he commanded an O Yes to he made, by one
of the Sorjeautj at Arms, for a general siknce ;
and then delivered (be said Commission to sir
Tliomaa Fenshnw, Clerk of tlic Crown, (o he
openly read. Which being done, Mr. Maineli
kneeled down and presented his lordship w:tli
a white staif vei^ of stute, which he gave to
one of (hePeijeants (it Anns, wlio held the
same up by (lie cloth of Mate on the right liand
thaieof. And alter the Commission was tead,
nnd the staA' receiveil as aforesaid, his grioe
commanded a solemn O Yea to be made; sod
then Eove leave tn all the lords, the peers, sJili
the judges, and lo all privy counidters ther«
present, lo be covered; and command wgs
fliveii, that none under ihat degree should keep
on (heir hats upon pain of iinprisoumeut. Ann
then the peers were severally called by ther
names, and each of tlicm answered particuhtrly,
vii. 1. 1.ordWefton,LotdHighTreBSurerofFja-
land; 3. EBriofMaucliester,Lofd Privy Seal; ^•
Barl of Arundel and Surrey, Earl Marshal ; 4.
Earl of Pembrokeaiid Montgomery ,LordCbBin-
berlalo;5. E>rlofKeot;6. EaH of Worcester;
7. Earl of Bedford; a Earlaf Essex; 9. EtA
tU] STATE TRIAl^, ? CiiAR£E5 I. l63l.~Tie Trial <^]tIaT>in Lord AuiSey. [dOG
flfDi>i9et;10. EulofS^bury; 11. Earl of , fore, irjoa be innocent, speak boldly and corw
Uktuti; 1%. Earl ofWiu'vick; IS. Earl of < fidentl;, and Ivar doc Co jattifv yourself; and
Cariiiie; 14. E»rl of IloHand; 15. Eari of r ....... . - - .:^
~ ' 16. Earl of Denbigh; IT. Vucuunt I
WimbleiOD; 18. Vise. Conrnty; IS. Viic.Dai
ckrter; 90. Viae. Wentoorth; Si. Lord Per-
cy; n. Lonl Siiange; S9. Lord Clifiord; E4.
LofdPetra; 25. Loid North; Sfi. I^ird Go-
«■; ST. Lord Honanl.
Tbe Judge* 'presebt : »ir Nidultu Hyde,
L C. J. of ike KineVBeocb ; (ir Tbonat ili-
diardson, L. C. J. of the Conunon-Pleiis; nr
Hniopbrcy Davenport, L. C. B, of ibe Exclic-
qnn; BaroD Deobatn ; Judge Jonei; Judjje
Uiuton; JuiJK* Wliiilocke; Judge Cruke.
The KiDg** Ceunsch sir llobert Hruch, At-
lonuy-Geiiera] ; sir HichntdSbelton,Solicitor-
Gcoeral; »ir John Finch, queen's AiCurney.
Geneni ; hi 'DmmM Crew, king's ScrjeHut at
OSten of tbe Court: iir Th'Tmas Fenthaw,
Clerk of the Crown; Mr. John Keeling, hii
Dtpoiy or Aiiiitant.
Thii doue, the Lord Steirard, after n solemn
pitctignizaaGe, commanded tbe Indicunenn to
be certified and brouebt in; and then, by a
Krjmit at armi, tbe jieutenonl uf (he Towrr
*il cdJed lo bring forth tbe Prisoner, (who nn-
til that time naa kept iu a litile room by the
Coaii«on~PUes)andibe lientenant brought tiim
to die bar, with divcn of the ^uard atleniling
N hinir where he bad aplace in maiioer'of a
pew, lined with fften, in which he stood ; and
it heutenant had another of the same form
WUm to rest in, adjoining to it. And when
ke had done bit obeisaDce lo the Lurd-Ui^
Stemrd and the peon, (who all re-«diited him
tgain) the Lord-Ui^vJtcwaTd apaka to him in
titt taaanee following :
The Lord-Iligh-Scewaid'i Speech.
Hy lord Audiey ; tbe king hnth undertlood,
both by report and tbe verdict of dlven geo-
deaeo of quality in your own coontry, that you
■tand impeached of sundry crimes of a, moM
liigh and heinoui nature ; and to try whether
iticy be (me or not, and (bit juMicc may be
done Mxordingly, hti majesi^ brings you ihii
day to your Trial, doing herein like tlie ini|hty
King of Kings, in the ISCli of Genesis, ver. 80,
II, wbo went down to see whether tlicir sins
were w grietout as the cry of tbem : * Because
' the cry of Sodom and Gomrarah ii gMnt, and
* tbeir sins be grievous, I i^ill go do»ii (saitli
' (be Lord) and see whether they have done mI-
' together according to ihe cry of it,' And
ki(^ on fartb ran have no belter pattern to
follow than ihe King of Heaven ; and therefore
•or aovereign lord the king, God's vice{>erent
kctc on earth, both commiuided that you sliall
heboe tried this d:ty, and to that end, balh caus-
ed these peen to be assembled : nnd the desire of
biimaj.iijthat your trial shall be as e(|»Hl as equi-
ty and justice Itself; and therefore thf^e Doble
iBm y'>urpeen(iihrtse hearts are as full of in-
tegrity, }nstice, end troth, ai their VL-ins full of
Mble blood) ar« Ibis day to try you.
assured tfaat those ihnl accuse yoti (if y
younelf^ shall not escufie free. But if
yoil be guilty of those crimes, I advise ynu to
gire honour to God and the kini:, and coufesa
your iault; for it is not vnio conhdeneo, nor
tubtilty, nor sbudini; out in denial, that cnu
hide tbe irulh ; and nil shifts and sulitiliies
againit It are but ' t'onciha arlverSus Ilonii-
• num.' Therefore, if iniib touch yiu at the
heart, and yourcoiitcieoce,Kbichisa thousand
"itnetses, and God's prace, wMrh is greurer
than both, stand not out againjjt it: Anil if
ynu do, God will put it into thi; hearts nf theia
noble persons to find it out, and to do that
Tbe Lord Aodley's Answer.
Mbt it please your fjvce : I have been ■
c!o«t pris.'ioer the*e six monliu, tviltiont frirniis,
withiiut counsel nr advice; I mii iunortinl of
the ndvantnges and disudvant^iget of il>e Ihw,
Hnd am bnt weak of speech at the he^t, nnd
therefore I desire lo h»ve ilie libeity of having
Counsel to speak for me.
The Lord-lilgb-Steward's Reply. '
For your so long imprisonment, it ha<h been
to you a special fnvour; for you liait .hud
lime 'enough to bethinl: yourself, and more
than ever any man had that liath been com-
mitted tor such an olTenre, and more fnvotir
than ever any had ihaC came to this bar ; and
you shall demand nothing, which the law can
allow, but you shall luwe ii. But for your de-
mand, I mntl more it to tha lords the Judges,
and they shall satisfy you in it, or aiiy oilier
thing you desire.
. Then bis grace desired to be resolved of tlie
Judges, Whether this demand of my Lord Aud-
iey, to have Counsel to plead for him, might
be granted or not I
Ihe Judges answer? I, That, in criminnl
cases, counsel is noi to be udmitted for matter
of tact; hut for mailer of law they may.
Then the Lord Steward proceedetl to th«
Cba^e, commamied the three Indictment* to
be read by sir I'homas Fenslmw, Clerk of (lie
Crown ; two ftjt Sodomy wiih L,i*rence Fits-
PBtrick.bis footman; the third for n Rape Am-
uiitted iin his own wife, die coum«ss of Caitle-
Tiie Three IsDtCTiiiNrs.
Tbe folio wing ai
s of tbe said Iodict>
1. Rej vtrtui Doinimiia Atfci.ET, for a Rape.
7 Cur. I.
' Wilts, S9. Jurniures pro dnmino reite super
' sBcramentum suum przscnt', quud MriTtinus
' dominus Aurilrv, nuper de Founiell GiOiird
• in comitatu Wil'ts. et .^Fgidius Bro^dwnr dc
' FounlellGiflbrdprieHict'iii couiitniuprarlicio
' generosus, timorem Dei pne oculis tuis non
407] CTATE TRIALS, 7 CuKLO I. lS3i.—T%i!'IHalqrMtnia LordAudley. [109
le 'diabolica mod
■ habeiites, sed inatigati
' ieducti, vicesimu die Ji , „ _ ..._
' III niMtri Carol), Dei grnun Antliie, ScotJK,
' Fnncis, et IlibemitE regit, fidej defeiuorii,
' sexto, apud Foanlell GiSird pnedict' et in et
' Super AiiiiHm domtntuii Audley, uiorein pre-
< fnli dointni Mjrtini Audlej, in pace Dei et
' dicti doiiiiiii regis ibidem esisteni' intuli' fe-
' ceruni. £t prxHlictua ^idius Broadwajr
■ prsdiclam AniiRm dominam Auditor, vi et
' armia, contra voluntaTem ipsiot Annie ail
' tuuc et ibidem violenur et feloiiicc npuit, ac
'^ ifisam Amism ad tunc et ibidem contra vo-
' luiitateiii sumn violeater et felonice carnaliter
' cogiiovir, contra pacein domini regis nunc,
' coroit', et digiiical' 'sua*, ct contra fornmui
' scatiiti in hujusmodi casu edit' et tirovis'.
' F.t ultra, jurntorm prsdicti dicunt super
' sMCratntmcuin tuum prndictV qvod pradictu*
I * Marrinus duminus Audle_r pradicio TJceumo
< die Juiiiis aim' sexto aupradicto ; apud Fuuii-
< tell Giffiird pnedictam, in comiCHtu prtadicEo,
' feluiiice fuit prteacni, auxiliana, et confortana,
' nlieltona, procurans, adjuvaiia, et manuteneiia
' prsdictijni /Egiiliuin Br. ad feioniam pr^dic-
' Mm, in forma prxdicta felonice facieiid' el
< perpetrand', contra pacem dicli doinini regis
* nunc, ciironam et dignitatem anas, ac contra
' Ibrmani itatuli prtedicti.'
9. JtfJTi
, far Stdoiai/.
' Will*, as. Jutatorea pro domino r^e sn-
' per ncramentum auuin przaent', quod iUar-
' tinus dominna Audley, nuper de Fouotell Cir-
■ ford in comitatD Wilts', Ueum pra oculia non
' habena, nee naiune ordinem reapiciena, aed
' inaUK>iione diabolica motut et aeductus, pri-
' mo die Junii, an' regni ilomini noatri Caroti,
■ &c. sexto, apud Fountell GifTord prKdIet' in
' dicto comitata Wilta, in domo manaionali
* gusdroi Martini domini Audlej, ibidem vi et
' armis in quendain Flnrence Fitx-patrick, yeo-
* man, inault" fecit, et cum eodem Florence F
' ad tunc et ibidem ne<|uit', diaboltce, felonice,
* et contra natnram rem veneream lubuit, ip-
* aumque F. ad tunc ,et ibidem carnaliter cog-
' novit, peccatbmqua illud aodomiticum deies-
* labile et aboininandum, An);lici vocat' bug-
' 6^ (inter Cbriatianoa non nominandum) ad
' tunc el ibidem cum eedem Fl«rence F. nequit
' diabolice, felonice, et contra naturaiD com-
* miait et perpetnaTii id magnam Dei omnipc>-
' lentil dlspticeiitiam, ac toiiui faunani generis
* dedecua, ac conini pacem dicti dom' re^
' Ikonc, coronam etd'gnitat' auaa, et contra fbr-
* ntani itatuti ia hi^u^oiDdi ciiau edit' etpruvis'.
9, Rm Mnui .Dontntii* AvtiLtii for Sodomy.
7 Car. I.
' Wilta, as. JuraUrea pro domino rega so-
* per uctnaieiituin auuni present', qund Mut-
' tinos doaiiuus Audley, nuuer de FoUDtell
■ Giftbrd in comitatu Wilts', Deum prs oculis
' nun habena, d«c nalune ordinem reapiciena,
' sed instigntione diabolica luotut et aedactus,
-^'frniQo dte Juoii, «ii' re^ domini aoKn Ca-
roti, &c. aexto, npfd Fountall Uifford prsdict'
in dicto comitatu Wilta, in domo manaionali
ejasdeni Martini domini Audley, ibidem vi et
armia in quendam Florence Fiti-pntrtck, veo-
man, insult' tecit, et cum eodem FInrciice F.
ad tunc et ibidem iiequit', diabolice, felonii:«,
« contra nnturnin icm Tenaream habnit, ip-
aumque F. ad tuDC et ibidem carnaliter cog-
novit, pcccBtamqoe illud lodomiticum deiet-
tabile et abominandum, Anglic^ vocat' bug-
ger; (inter Chriatianos non nominandani) ■<!
tunc et ibidem cum eodem Florence F. ne-
ijuit' diabdice, fi'lonice, et contra natDTaot <
cnmtniait et perpetravitinmagnam Dei omni-
putentia diaplicentiam, lu: tatius humoni ge-
neria dedecua, nc contra pnccm dicti dom'
' reg' nunc, ct)ronam et dignitat' suaa, et contna
' forma m statnti in hujusmodi cssD edit' et pro-
Then being- asked, whether he wu Guilty
of them, or Not Guilty Mle answered. Not
Guiliy. Tlien he was aaked how he wanld be
tried ? The earl said, By God and my Peers.
Whereupon ihe peers put off their hats; and
thereupon the iaaue iiaa joined.
The Lord iligh Stenard't Speech to the Lorda.
My Lords; The priaoner atanda indicjed fnr
a Ra^ by line Indictment, and of Sodomy*
by two ; and he hath pleaded Not Guilty to
thorn all: it ia my dotj to cbar);e yon wiih the
Trial of it, and you are to judge of it. The of-
fences Hherewiih hcataada dwrged, are to be
proved by Evidence | and ihe crimes that come
tbia day before ua, may ia aone breed detecta'
tion, and the person of his lordahip in others
may breed compassion; I desire your lordahipi '
tuaet theae t«o aside, and tet your reason sway
your judgment, and let that rule your affec-
tions, and your hearts your heada; for ndtlier
of these ouglit to be put into tlie balance, for
a grain on cither side may away the Kale. Yoa
are b> give attentive hearing, and then to weigh
eqnatly, that the scale ma; lean the right way.
The Jndges will assist you in the pointa of law,
which if you doubt of you are to expound it .
to me, and I to them. And this yoa are to do
without corpnral oath; fnr the law conceiveth
you of auch integrity, that you will do that
tbrjoMice, wluch othera do upon ibeir oatlis;
ant) therefiire admits of no challetige : and God
direct you to do aa you ought.
Then SirTlio. Crew gare t^.e first Charge;
and utter hint Mr. Altaniey auid Mb fblloweth :
My Lord Steward ; May it planae yt>ur grace,
there are three Indictineuta aRainat Mervin
lonl Audley; the Unt for a Rape, tlie othn'
two for Sodomy. Ihe person is lionoiimble ;
the crimes of which lie is indicted dialionour-
nble ; » I'ich if it fall out to be true, ivhicli is
to be left til trial, I dare be bold to say, nerer
* See in Coke's £iit. 3 jS, a precedent- of
this kind in Stnlford's Coae, wliicb in Co. 3 (nst.
50, i» laid to have been drawa by great adrice.
409] ^ATETRIALS, 7 CbarlesI. 1631.— 7%; Thai t^ Menm Lord Au^ey. [410
poet iDTCD ted, nM hiuorian writ of an; deed m>
loul. And tUthough Sucionius haih canously
■et out the vicea ol' «oii>e uf the emperon who
had absolute power, nliidl ini|>Jit toRke them
femrless of all manner of putiibliment, aud be-
sides were heatlierit, and Lnen not Godi jtt
mme of these came Dcat thii lord's crimet.
Tltc one n a crime, that, I may ifwak it la the
honour of our nation, is of such rBril]r,lhat ne
seldom or never knew of ihe like j but they are
allof*ucb s pestilential nature, that, if tliej'
be not puuislwd, they will draw from Heaven
a heavy judgioeiit up«i this kiiigdom.
WhereupuD (Mr. Attnrnej digressing from
the malterj the Innl Aiidley would linve inler-
tupied iuMi, and required to licdd him to the
poiolt in the Indictm«ni». But the Lord High
Steward desired his lordship to be paiienc, nod
asHired Lim be stjould be heard ia lit (iine at
full. WhereuponMr.Attomeyproceeded again
iu hij C'barge as fotloHeth :
May it please your Gr«ce; I can speak it
with joy and comfort, during al) my time uf ler-
Tice, both in his rnxjuty's father's time, and
(ince he came to the cronn, I bad never the
like occasion to spenk in this place agninlt h
r^erof the realm before now; and Gnd knows
do it now wiih sorrow, and 1 hope I sbalJ
never have the like occasion to do so much
i^ain. But liis majesty, who is the pattern of
virtue, nut only as king, bat in big person also ;
in vchom it is hard to judge whether he most
eicelsin justice or mercy, but I rather think
in mercy, would have my lord Audley the pri-
■oner at'tbe bar, heard with as much favour
as snch a irime can admit : and when he first
beard of it, he gave strict command, tliat the
imth should be searcbed out, tliat his throne
and people n^ht he cleared from so heavv and
heinous tins; and tbereupon he was indicted
in bis own country, according to t1»e law, and
by gentlemen of worth and qooiity. The Bill
wa^Iunnd; and now be js personally hruuEht
to the bar to he tried by these his boneurHble
peers, such of nliose wisdom and sincerity ihere
con be no (juestioa, but that he shall have juat
and honourable trial. And lir<t, I shall begin
with the Irulictment of Rape. Bmctou tells us
ofking Aibelstnn^'sLnw before the Conquest:
' If the party were of no cRasie life, but a
' witore, yei inere may be n rnvishmeat; but it
' is a good plea to say kbe wus his concubine.'
In an Indictment of Rape, there ii no time
of prosecution necesnry; for ' nullum lempus
' occurrit regi :' but in case of an Appeal of
Hane, if the woman did not prosecute in con-
went time, it wUI bar her. If a man take
airayamaid by force, and ravish lier, and after-
wards she give her coniicnt and marry bim, yet
For tbe crimen todamit'icum, our law bad no
knowledge of it till the S5th ol' Hcnn 8, bj
which statute it whs made Felony ; aim in this
there is no more question, bat only, whether it
be crinin $fidnmiticum titte ptnetratimu ; and
thiUiT of idEUz. setsitdoivnin|eTi«aliford>:
and where tbe law dotfa notdistingoiib, neither
must we. And I know you nill be cauiioos
bow you will give the lea*t mitigation to so
abomiiiable a giu, nhich brought juch plagues
alter it, us we may see in Gen. ivii. Levit. xvili.
Juilg. lix. Rom. i. But, my lord, it seeiued
to me strange at the lirsi, how a iioblemau of
his quality should fitU to such abominable sins;
hut when 1 founii be bath given himseiroverto
luit, and that ' Nemo r«pentt fit pessimus,*
and if once meii habit theintelves in ill, it i*
nn marvel if th(y full into any sins, and that be
was constant to no religion, but in the morning
he would be a Papitt and go to mass, and iu
the afternoon a Protestant and go to a sermon.
When I hud congidered tliese things, I easily
conceived, and shall be bold to give your grace
a reason why he became so ill. He believed
not God, he had not the fenr of God before
his eyes i be left God, and God left him to his
own wickedness: and wkit may iiota man run
into* What sin so foul, what thing so oJious,
which he dares not adveuiure? But I find in
him things' beyond all iiniigiuatiou : fur 1 find
his ill imagination aud intentions bent to liai'e
ever his wife naught with th? wickedest man thnt
I heard of liefbre : for who wout<l not have his
wife virtuous and good, how bad soever him-
self be } And I find him bawd to his own wife.
If she loved him, she must love Sklpwiih, whom
he honoured above all, and not any honest love,
liut in a dishonest love; and he gives bis reason
by Scripture, ' She was now made tubject to
•him;' and therefore if she did ill at bis com-
mand, it was not her fauLt but his, and he would
purse 5001. per onntun; and if his wife or
dnugliter would have any lhin|, though never
so necessary, they must lie with Skipwitb, and
have ii from him, and not otherwise; also tell-
ing SlHpwjth and his dimghtet-in-law, he bad
mihcr have a child hy him than any other.
But Tor these tliiiic$, I had rather they should
come of ihu Wiluesscs mnutbs th;in from me;
niiH thereupon desired lliat the Proofs might
The Deposition of Walter Bico.
WulttT Bigii deposed. That Amptil was a
page to sir II, Smith, and had no mure means
nhen he came to my lord Audley, hut tbc mara
he rode on. He entertained bim as his page 8
years, and afterwards let bim keep hoises iu
mv lord's groiind*, by which I think he cnrich-
'etTliimselt !j,OOOA but lie never sut at table with
my turd lill he bid innrried his daughter, and
then be gave liim to tbe value of 7,000/. — That
Skipwith nas sent from Ireland to be my tndy's
page; and that bis father and mother were
very poor folks there. He spent of my lord's
purse per annum SOOJ. and be gave bim at ouc
time 1,000/. and bath made divers di«ds of
land unto him. — My lord was first a Protes-
tant ; bnt alter, by buying of Founthill, he
turned his religi'jii.
411] STAJETmALS.lCHAHLEillQSU—nc'n^ilfMefTinlordAudley. [41S ;
Lord AnDLEv's Ewtninstioa. »»B'« •» Witne»«, uoleu Owj .ere convicud
That lleiir; Skipwith bad no raeani when he
o hiin,'ari(i'tba( he hud pvea him l.OOOf.
and tlial SLipwith laj wiih ■■ '■— '
t and [)iHt he gave a farm of
I to Amptil that marrird his
i other tunes to [be value of
there waa oae Blandina in his
id bestowed an illdiwu* [here.
ttmi[eiied
700^ per annuir
daughter, *ud al
T,000i. and that
huuae l-tdajs, ai
and therefore he ^
The lord Audley's Exalnination taken before
ihe Lord -Keeper, Lord-Treasurer, Lord- Mar-
shal, and others; nhich being shewed to him,
subscribed »ith liis own bnnd, he would not
acknowledge, but cicjscd it, sajiiic his eyes
were liad ; but being perfectly read, he ac-
knowledged it.
My Lord- Steward's Advice to my lord Audley.
Mv lorj; I would uHvise you not to deny
tlie things which are clearly proved ; for iben
the lords will give leaj credit to the rest you 9ay_
TbeCountest of CASTtBHtvEN's Examination,
Thai ibortly after the earl married her, vii.
the Jirst or ser.oiid night, Amptil cnme to the
bed's side, while slie and her huiband were in
bed, and the lord Audley spake lasciviously to
her, and told her, ' That tow her body wbs
' bis; and that if blie loved him >he must love
' Amptil ; and that if she lay with any other
' man wi^ bis consent, it was not ber fault but
' hi] ; and that if it wat his will to have it so,
' she must obey, and do it.' — That be attempted
to draw her lo lie with his servant Skipwith ;
and that Skipivilh mnde him believe he did it,
but did it not.— 'niathe_wij!!ld,m*VeSliiji»ith
come naked into his chamber, and delighted in
"Callmg upTiS servant»"to~5liew"Elrt!r7l"'"i'ie>i
HJid would mnke.hcr lonk on, and commet>de<l
for Jiis man Brodwaj, and commanded hirn
to lie at his bed's feet ; and ahnut midnight
(she being asleep) called him to light a pine of
tobacco. Brodnav ro^^in h:g gbirt, and. my
lord pulled him into bpd to him and her, and
niad<: him lie next to ber; end Brodnay lay
with her, and knew her ctirnHliy, whibt she
rnadrr^siftunce, and the lord held both her
■ biinds and one of bej Icgy the while: and
fi.at
have killed Tierielf with a knife, but iliai
. Brodway forcibly took the knife from ber and
broke it ; and before tlmt act of Brodway,
she had never done )'. — I'bitt he delighted to
sec the act done ; and made Amptil to come
into 'bed with them, and lie with her whilst he
might see ii : and she cried out to have saved
herself,
Then Lawrence Fiti-Patriek was produced :
but before liis Examination waa read, the earl
desired that neither be, nor any otlier, might be
allowad Witnesses agaiittt him, until he had
taken the oath of aJlagiaDce, This wu re-
ferred to the lords the Juc^.
The Judges resolve againit kirn, that tbey
The Examination of Fiti-P*tbick was ihra
read, the truth of which he then again con-
firlned upon Oath.
That the earl had committed Sodomy twice
upon bis person ; that Henry Skipwith was the
special liLvourite of my lord Audley, and that
he usually lay with him : and that Skipwith
said, that the lard Audley made him lie with
his own lady ; and ibat he saw Skipwith in his
eight do it, uiy lord being present -. and that be
lay with her in their sights
Than Skifwitr was produced and iwoni, and
his Examination i«ed, which he again cott-
firmed upon oath, and deposeili, vii.
That the earl often solicited him to lie with I
(he young lady, and persuaded her to love/
him; and to draw hei thereunto, he ur|cd^
that his ton loved her not ; and that in the.
end be usually lay with -tlie young lady, and]
tiiat there was love between ihem both betortL
and after ; and tbu my lord said, he would/
rather liave a boy of bis begetting than anyl.
other; and tbati!he was but twelve years of'
age when he first lay with her, and that hel^
could Dot enter her liody nitbout art ; and ;
that the lord Audley fetched oil toopeoher i
body, but she cri'eil out, and "WcSuIa not I
enter ; and tlu^ the earl appointed oil the
second lime; and (hen Skipwith entered her
body, and he knew ber carnally ; and thib
my lord made him lie with liis own lady, but
he knew her not, but tald his lord he did.—
That he spent SQOl. per ana. of the lord's
purse, and, for tlw most part, be lay with the
said earl. That the earl gave him his bouse
at Salisbury, and a manor of tiOO/.— That
BJandina lay in the earl's boose haJf a year,
and was a common whore.
FtTZ-pArmcK'ssecond Examination.
That the lord Audley luade bim lie with him
at Pounlhill find at Snlisbury, and once in tlw
bed, and emitted betwuig^^ UiJEbs, but did
not peuctrateEis~body ; and that he lieard he
djd so with otliert.^'l Jiut Skipwith lay with the
youug Udy oAcn, and grJiiurilj; aod th^t the
earl knew it, and encouiaged him io it, and
wished to have a buy by liini and thi: young
lady.— That Blandina lived half a year lo my
lord's house, and was a cuinmon wbure.
Edvuno Scot's Examination,
lie deposethfThat Skipwith fre<)ueutly knew
the youug lady, and iJtat the earl knew •■) *>>^
encouraged hiiu therein.
Fm's Examination.
"IW Henry Skipwitli and the yoooghulylaT
ofieo together, and the eail iu cooipaay ; and
tl»t then the earl protested, that kc wuuU am
bave a boy of hii begcttiiq^
413] STATETRIALti. 7Cb»m.mI. 1631.— neTrwiqfitferfmLorrfj^urfiS'. t^U
' Lord dclb visit this laDrl for the iniquiij
' thereof/ And Lbeii CDncludo ; That God *
mRj remove'and tskeawuy from os hia plaguts,
let ihi) nicked mao (laith lie) bo taken an-aj
from UDDtipt uk
Then the E&ri (afier the Lord Steward bad
told bim he should be heard in bis own De-
fence, with as much patience as was admiited
in bis Charge) entered iuto his own DefElice.
But the Lord Steward advised bim to speab per-
tinenily ■ wliereupon he tdieilged, that he was a
weak man, and of ill memory, mid (berefbrc
daired tbal lie might not be iiilermpted.
1. Then be began his deJeuce wiih excep-
tions against hia wife, urging, ibat she was
naught and dishonest with Brodwafjb^ iKrowu
Then was read the young ladjr Aidlet's Eia-
mination.
That abe was married to her fansband b; ■
Romiih priest iu the nomine, and at night bj
* prebend at Kilkenny ; tJiat she iita first
tenpied in lie with Skipwith by the earl's al'
lurcmt^nu ; and that she hnd no mciuiB bot
what she bad from ^ipwith ; but she would
not lie with Pawlet ; be suliciied ber also to lie
niib one Green. — ^1 bat the Karl himself saw
ber and Skipwitb lie t<^etber diiers times;
and nine servnnts of Che bouge bnd alio seen it.
Wbeo ibe £ail tolicited her first, be said,
ibat upon hts knowledge ber husband loved ber
not ; and threatened, that be would turn her
out of doors, if she did not lie with Skipwitb ;
ftod that iF she did nut, be would tell her hu»-
bu>d she did. — That she being vtry young, be
used oil to enter her body first : anil afterwards
he Dsoallj lay with ber, Htid it was wiili the
earl's privity aod consent.
Bkodwav's Examination, ivho tunffsitlh,
, That he lay at tbe Earl's bed's feet, and one
r nigbt the earl called to bim lor tobuccu ; and
' M he brought it in bis shirl, he caught bold of
bim, aitd bid bim coine to bed, whidi In re-
futed ; but to satisfy my lord, at but be cuii'
•eateil, and came into the bed ou my brd's
Bije: then my lord turned biiu upon his wile,
and bid him lie with ber, which he did; and
diceul held one of Jier leg* and butb lier
hnds, and at tbe Ust^ (notwithstanding her
tf»taace) lay with her. — TbcD tbe earl used
bit body as the body of a woman, but nnei'
) pieiccd it, only emitted between his tlii^h>.~—
I He bath seen Skipwtib lie with the young
lady ID bed toother; and when be hsid got
. np«D her, tbe earl stood by and encouraged
I him to get her wiih cliild : and that be bath
I made bun the said Brodway kiss his own lady,
- and often solicited bim tn live with ber, telling
him, that be liimieH sbuuld pot live long, and
■ that it mif^bt be his making ; and that he batli
said the like to Skipwitb.
Tlie E»%l's second Examination.
The Earl desired to be pardoned of those
things whereof he must accuse himself, and
sud, ' That coodtmnation should Dot come out
.ouih.'
These Testimonies being read, Mr. Attorney
pressed things very earnestly, and in excelleut
method against tbe Earl, and said,
My lords ; you have seen tbe clearness of
■be Proofs, anil I know your wisdoms to be such,
a* jou well know in so daik a boiitiess clearer
proofs cannot possibly be bad ; for let a ni
be never so wicked, or nerer so impudent,
will not call Witnesses to tee his wickednet
yet you see here this point fully proved,
Tlien be sbawed bow both the laws of God
and HUB were against Sodomy, and cited Levit.
18, towards die end, ■ That by these Abomi-
' iLaiJnns the land is defilsd ; and tbMefora tbe
confess
Whereupoti my Lord Steward aniwered,
Thut this mude against his lordship ; thcref'tre '
be ought nil t6 alledge for his Defeuce that
fact, ail an imputation to his wile, which be
forced her uuio by compulsion mid violence. .
3. 'J'heii be objeoted against ttie Incnmpe-
leiicy of tiie Witnesses, as tbe one his Hite, the
other bis servants; and they drauii to this by
his son's practice, who sougtit liis life : and de-
sired >n know, if there were not a stutute iiguintt
the Incompetency of Witnesses?
Tltc Judges I'L-Miived bim, that there was
none touching Witnesses ; hut in cnscs of High-
Treason, ilicre was a stiituie concerning Ac-
3. Then !.e desired to be resolved, whether,
because Brodway doib nut depose nny Peno-
tration, but onlv that he emitted upon her
Icily while the eiirl held ber, chnl should be
judged Felony us Tir a Kape ?
Tlie Jiidees resolved i; to be a Rape, and stt
consequently to be I'elony.
4. Then lie desired to be resolved, whether
bis wife is lo be aliuwed a couipeteni Wiintis
against bim, or not ?
The Judges resolve, Tbaf in civil cases the
Wife may not ; but iil a criininnl LTiuse of this
uiiture, where the wife is the patty eiieved,
and on whnm the crime is coiiimiued, bhe is la
. be admitted a witness aeiiiuit her bnsbiind.
Then the Lord Iligli-Stewnrd deiiired tba
lords the Judges to rescklve ibe iguestions which
Mr. Attorney in bis Chaise subiuicted and re-
ferred to tbeirjudynenis.
1. WbetWer it were to be accounted Buggery
within the statute, without penetration! The
Judges resolve, that it win ; and that the use
of the body, to far as to emit thereupon, niakei
it eo.
S; Wiietltcr, it being proved that the pany
ravished were of evil fune, and of an uuchast*
life, it will amount to a Rape? The Judges
resolve it to be a Rape, tbough committed on
the body of a ooinmnn strui^pyt ; for it is the
enforcing against tbe wiH which makes tha
Rape ; and a common whore may be nviabed
against her will, and it is Felony to do it.
3. Whether It is adjudged a Rape, when tbe
woman complaineth not presently ? And, whe-
ther time be a necewty of aocuMtion witbin a
415] STATETRIAIS. 7 CHAtiixsL leHL—VK Trial of Mmia Lord Audlty. H\b
until joav iordsbips nre agreed upon the V'er-
'I'licn the pren withdrew themMivf: ; and
• 1^ two haan dehnl», and wveraladvicnnnd
conferencei with the Xiord Chief Justice, ntiom
they lent for, and consulted with four tei-erat
timei ; having in that time also teut the earl of
Warwick, *iid viiCount of Dorcliister, to^eiher
with t)ie Lurd C'liiff Justice, to consult with
the Lord Steward, at the lust they returned l»
their places : and then the Lord ^ward aske4
llieni one by one, bf^nnin^ at ihe lowest, and
to Hiccnding;
1, Whether ilie (aid earl ofCastlehareiiwas
Guilty of the Rape whereof be stood indicted,
'or not ! And they all gare him Guilty.
3. Whether the said earl of Castleharen wm
Guilty of the Sodomy with which he was charged,
or not? And Atieen of the lords coademneri
him, and the other twelve freed him.
The Skhtence.
When the Verdict was thus given, the liiu-
lenftnl of the Tower was again cominaiided to
bring (he prisoner to the bar, to hear his Sen-
tence; and aAer ha was brou^it in, the Lord
Stewud said unto him :
i''orasDiuch as thou Msnin jonl Audley, earl
of Caatlehaven, haU been indicted for dirers
Feloniea, by three several Indiatmeiits ; on«
for a Itape, the other two for Sodomy ; and
bast pleaded Not Guilty to tliem all, tind li>r
thy Trial ihou hast put thyself upon God and
tEy peers; which trial thou bHst bad, and tliey
found thee Guilty of them all ; What canst thon
tay for tliyself, why the Sentence of Death
sliould not be pronounced againu thee }
Whereupon he answered, He~ could say no
nore, but referred binuelf to God and tin
kiikg's mercy.
I'ben the Lord Steidkrd said. My heart
E'erath for that which my longue niust otler ;
ijusticeii the way tocut offwicliedneis, and
therefore hear th^ Sentence.
Tlion moat go trom hence to die prison from
whence thou earnest, and from thence to tlie
place of executioD, there to be haniicd by tlie
neck till thou be dead, and the Lord liare mercy
Tb« Lard SrEWaRu's Eibortaiion.
Oh tbitik upon your offences ! which are w
heinoDi and so horrible, that a Chrulian man
ought Karca to name them, and such as the
depraved nature of man (which of itself carries
all sin) nbborretb 1 And ynn have not
of a
. , >t for
that, that you have ahuied your own daughter !
And having both honour and fortimc to leave
behind you, you would have had the impiuas
and spurioua o%prin)( of a harlot to inherit ■
Bbth those are horrid ciimes. But tny lord, it
grievei ma to see you stand out against the
truth (o apparent ; and thereforeil will coi>-
clada with this admonition. That God nwdtt
have taken you awa; wbeii you won Uii^ed
* Judges resolve,
' laeaiui '
dislike, she was not limiicd to any time for ber
c^)mpl:iint ; aiid that in an . Indictment, there
I* DO limittttioD of tiiDc, but in an Appeal
4. Whether men nf no worth shall be al-
lowed sufficient Proo& against a baron, or not?
The Judges resolve, that any mau is a sufficient
witness in case of Felony.
Tlien the Lord Steward spake, and said;
tSy lord, you have been graciously dealt witli
in this proceeding, for ii is not an usual thing
in so capital and heinous causes as this, to
.bring the peO'ty oiid witnesies face to fiice be-
fore tiinl: but, my lord, yoo have long before
this time heard tlieir Examinations, and ques~
tioned and opposed tbem face to face ; and are
thereby the better enabled to make your De~
fence; and his majesty is still grdciuusfy pleased
to continue his goodness towards you, and halh
commanded that you should be henrd at full:
if therefore you have any thing el*e to say for
yourself, speak it.
Whereupon.the Earl answered, (hating fi^t
made a solemn Protestatiop of his Inuocency,
but nevertheless implored the mercy of God
and the king) That he had notbiug more to
say, but left liimtelf to God and his peers, and
prcseiited to iheir consideration three Woes ;
1. Woe to that man, whose Wife thould be
a Witness against him !
9. Woe to that man, who^e Son should per-
secute him, and r^on5pire his death !
3. Woe to thiit mun, whose Servants should
be allowed Witnesses to take away hit life .'
And lie willed the lords to take this into their
caiisideration ; tor it might be some of their
cases, or the case of any gentleman of worth,
that kt.eps a footman or other, whose wife is
weary of lier husband, or his son arrii rd to full
age, that would draw bis servant* to conipira
his father's death.
He said further, bis wife bad been naught in
his absence, and bad had a child, which be
concealed to save her honour.
That his ion was now become 21 yean old,
and he himself old and decayed ; and the one
would have hit lands, and the other a young
husband; and therefore, by the testimony of
tbein.and their servants added to their on-n,
1 ' ttiev liad plotted and eonipired bit destruction
And then f being thereunto required by the
Lord Steward) he withdrew bimaelf ftgm the
Then the Lord Steward (after M)«Biit proclo'
Bintioa .of silence) addressed himself to the
lords, and said : My lonb the peer*, your lord-
■hips have heard the Proo&, the Prisoner's
Detencc, all bis Doubt* and Questions re>
solved by the lords the Judges ; wd therefore
your lordsliips, if you please, may withdraw
f ourselves, if you are sausficd; bcCHuse the
'rjijaer i* aet to b« called to tba bar again.
417] STATETRIAI^. TCii;
si. lOii.— Tie Trial tfMcrrin Lord Audtey. [41s
in Toar sioi, and tlierefore hope lie liath re-
Mired jruu o^ & 8Ulij«ci of his mercy : nnd bb
tic aendi you to Ke this dny or slinriie, lliat ycni
may reluro unio him, so therebj in a manner
be lovingly draifB^OK to liiin: [lierefore ipcnd
ibe remiiiiider at your time iu teitr!i and repent-
ance; and this day's work, I hope, will be a
correction from many crimes and corruptions.
Whereupon, at InM, tlie Earl descend^ to a
low Petition to the lords, and very humhiy be-
■ought ttiera to intercede with his majesty, thai
he alight nut toddeuly cu£ him off, but give him
tiiDe ofrepentaoce. Aod then lie debited their
lordshipi pnrdoiis, in that he bad been so great
» stain to honour noil nobility.
Then a Pn>claitiation being made by s ler-
jeant, declariag, TJiat the lord Higl)-Stewnrii'5
pleasure was, UiaC all such as htd atteiiiled this
day's nerrice might deport; (ha litutenaiit of
the Tower carried the oarl away, and the court
broke up.
Tns EiECUTiOK.
la pursuance of the Sentence, a warrant was
Uaaed Tor his Eiecutioii upon Saturday tlie 14tli
of May ToUowing; notice thereof wna given
biro, aud his coffin carried juto the Toner nbout
> week before, that he might the better pre-
pare himself fur death : The dean of Pnut's,
doclur Wioerfe, failed not daily to viiit him,
and to K« bow be stood, and to settle him in
bis religion.
- Being brongliC to the scaSbld, attonded by
the dean of Paul's and Dr. Wickhnm, together
with bii servants, he sainted ths noble perion-
sga, and whole assembly, shewing to them all
a very noble, manly and cli^nrful countenance,
■och as seemed no ways daunted with the Tear
of death. After a short ivlule shewing himself
to ihe peofile, he addressed himself 10 pinyer,
the deans accompany inn him iu that i-xercisa,
but somewhiit apart ; which being nui long, he
stood upon his legs, aiid leaned upon the two
deans, conferring ni ill them, I'hen hb luiiied
to the Lords, and spake to this effect:
** I acknowledge with thnoblulncss the great
|oodoess of Almighty God, tliat it hnth plexsed
his dirine mi^esiy Iu hesloiv on me many en-
dowments, as honour, liches, and the like,
which I have mis-spent ; having been a vicious
liver, and justly deserved death, for ni much,
and iti that (he lesht siii at God's hands justly
deserreth death, and no less; bttt fur the two
heinous crimes with ivhich I nm br.iiulrdi cm-
I, and here to sulTer for, I do here deny
f my death, eieu as freely as I myself do de-
ire forgiveness at Uod's hands, nhich I hope
) obtain through his infinite i;oodne>u — '
beg nf your lordships and this whole assembly.
Now for as much as there hath been speech
and rumour of my unset tied n ess in my Religion,
I have, for explanatiou thereof, not only made
Confession ol my Faith to these two worthy
doctors, but for beiicr sHiistaclion to ibe itorld
in th»t |>oiiil, express the s:itne in writing under
my hnnd signed ; which us it h here set down,
I deaire may be publicly read."
1'he Confession of his l-'nith then was rend
by a youn^ gentleman, with u lnud voice, where-
in he prolcssei he dies in the faith of the church
of England.
ASier wliichlie proceeded : " I acknnnledg*
the great juitcice ami mercy of the king's ma-
jtsty ; Ills justice it) bringmg me io the h^ir ;
and his mercy in BfTordjiig nic stjch n noble
and gracious Trial tliere ; and T give his ma-
jesty humble and hearty thanks tor aisigning
luy death to ba in this ninnner, contrary tu the
Sentence pronounced against nie at my unaign-
rnenl. Buttliereis a greater favour tluin thi',
for which 1 am to reoder thanks unto his sn>
cred mnjesty, and that is. Che long time 1 hnio
had to repent in; whereof (prnised be Almighty
God) I can speak with conifurt, I hare made
good use, and am now ftilly prepared fur dtaih,
and much tlie bcttery by the good help and in-
struction of these two wnrt)iy men, to whom I
nckniiwledge myself hounden, ami do here, be-
fore you nil, give them henrty tliuiiks fur iht ir
great pnius taken in coming to ine, praying for
me, and preaching and reading lo me. — An<l I
desire your lordships to present my humble
Hcknonledgmcnt to his inHjesty, for his good-
ness in sending tliem lo nie, and uiy thanks fur
the same. — I do also frotn my heart desire and
beseech Almighty Giid lo bless the king's ma-
jesty, the queen, and the young prince, toge-
ther with all siirh other ii,.-ue as nu shall heie-
after in mercy bestow on them, and the tvliuia
state; and mv trust and desire is, there may
be ever one of their line to swny the sci-pter of
tliCM kingdoms to the world's end. — And 1 be-
seech, nod do beiirtily pray for the wetfiire and
ha^ipy prosperity of the king and queen of 6>>-
hcinia, uiih ull their princely issue. 1 do again
desire your lordships to uiuke tendtr of my
humble acknowledgement of his mercy and
Eiiodness.— And'now laiitly. That you will nut
bend your eyes so inncli lipon me, as your
bauds and hearts to heavrn in prayers (or me ;
and so I take my lust Kirewcll of your lordships
and the world.''
Tbeii ho wctit again to his private prayers ;
which being doiit, lie prepared himsi-lf for
denili, striving lo shew the like courage and
ninnnanimity whickheJud formerly done, unto
the l^ist: but sight of the hendsman (whom yet
lie freely forgave, and took him by the hand,
bidding him do his ollico manfully} together
with the nppreben^on of his nsar appruaching
end, made him somcvihut to change colour,
nnd shew some signs. of tremblinj! pnssion; fur
his hands shook a little in unduiug bis bniid-
strini[s; whitA his man perceiTing, biept to him
and helpt him, as alsn olF with his doublet.
Then taking leave again of the lords, the doc-
tors, nnd his man, saying a very ^hort prayer
by himself, lie pulled down his handkerchief
over his face, and laid his head upon tbe block;
which was taken off at one blow.
3 s
419] STATETRULS, 7Cii. L lH^U—The -rrial if ^Patrick md Brodaaj. (t»
138. TheTi'ial of Lawrence Fitz-Patrick and Giles Broadvat,
two Servants of the before-mentioned. Lord Audley, Eart of
Castlehaven, at the KingVBench, for a Rape and Sodomy :
7 Charles L a. d. I63t. f 2 Rush w. Coll. 102.]
Om Monday the «th of June 1631. rl.e
' ^ImI 'ir Die Kinc's-Bencli brout^lit Fitz-PiiCrIck
and Urodwnjr to the bar, where was a jury of
sulficicDt aii>< able Wilbl.irv men, impuiieUed
tu sii upon and Cry them.
Tbo counter* ol Cosilelmvcn hersfif wa» in
rourt, to iilve Evidence ni;aiiist biud<*Hy ; and
slie came in upon tlie instant, wlien tlie Lord
Cliief Justice (ur Nicbolns Ujde) demanded of
licr, Whether ihe Evidence she had funiierly
giren at her lord's Arraignment was true, niid
ilie full matter of Charge vbe hud then to de-
liver ag^iinst the I'risuoer? WhereupoD «be
nniwcied, Itnaa Mylordsnid: Madam, yuu
have sworn that Brodway, prisoner at the bar,
lull) lain with yuu by force, wliich may be, mud
yet iionacoinniitled: Did l»e enter your body?
Slie s;iirt. That m her former oath taken, when
xhe Icslified he luy with lier by force, tier menn-
ini; nag, thnt he had known ber carnally, and
that liedid enter her body*.
■Jhen WHS she wished lo look on the Pri-
(nner : unto which motion and comrnuidnient
khe made a abort reply: That althouifb she
could not look oD him, but with a kind ofin-
diiinuion, and with thoine, in regard of that
wdich had been offered ud^> lier, and tbe soA
fered by , liini, yet )bc had so much charity in
her, and sncli respect to God and his truth, that
fhe hud delivered nothing fur malice: and IJiere-
f ire 1 1 oped tliat.her onin and evidence there-
upon should lie credited : and so desired to be
believed nnd riismissed. Wliicli being granted,
she departed with a« much privacy as iniglic be
into lier coach.
Fitz-Pacnct: iMJog asked concerning his guil-
tiness or innocency, demanded, who were his
accusers? The Lord Chief Justice answered.
" Emi(sioT) is necessarj to constitute a rape.
So ruled by ei^lit judges, though Indeed it dues
not ie«m perfectly clear wbat was lord Mans-
field's opiniun, conL lord Laushhorough C. J. of
C. B. Builer J. ofB. R. and Keith J. of C: B.
(Ferryn B. absent) in the cnse of Hill tried at
Lincoln assizei in 1781. See East's Crown Law
tit. Rape, where au accoant is given ofpreiious
opinions on this point. In practice, direct
proof of emission is not required. It may hi
itiferred from cirrumslanccs. Note, It seem:
that Mr. East was not aware that the earl of
Castlehaven and lord Audley was the tai
feraoQ. The earldom nf Castlehaven was
rish peerage, which in 1777 became entinct
the dsath of ibe last Earl, for want ot mi
desccndanls, claiming through malaa only /i-om
the tir^t earl. The English honour of Audley,
btins a bar^nv in fee, is inheritalle by females,
and itill subtisti.
You have acctised yourself sufficiently. Fll^
PatriEk reptii^,ThatfaB thought neither the laws
of the kingdom /equired, nor was he bound-io
be tlie destruction of himself: what Evidence
he had fbntierly jtiven, was for the king agaiast
' earl, and no further.
.'lie Lord Chief Justice replied, It was true,
the law did not oblige any man to be bii own
ler; yet where his testimony served lo
away any one's life, and mode liinself
guilty of the same ciime, tliereiit it should serve
cut him off alio.
Then the Jury demanded of the Court satis-
fection concerning the words of the Statute,
i-hich run, ' To charge him alone to be, and ac-
counted a felon in law, that committed a Bi^-
' gcry will) man or beast.' (Of which fact the
lale earl was found goilty, and hnd suffered.)
The Lord Chief Justice replied, Th.it foras-
much as every accessary to a felon is a felon in
law ; so be being a viiliintiry prostitute, wbra
he was not only of undcntanding and years to
know the heinousness of the sin, but also of
■irength to hnve withstood his lord, he thetefon
was so far forth guilty.
Whereupon the Jury found the bill, and the
Sentence of Deuth was passed on them bulb;
id they were delivered nnd committed lo the
sheriff of Middlesex, who, after he had suffered
them to haie some njiast at Mr. Hill's In tfie
Palace Yard, and confrrcnce with their friends,
carried them to Newgate, where tliey behaved
themselves civilly and religiously.
As soon as they were found guilty,theJudge9
of the Court wrote this Letter to the Lord
Keeper to prepare him tor the king.
" Ri^t Honourable; May it please your
lordsbip to be infunned, That ilua day Giles
Srodway and Lawrence Fitz-Patrick were tried
before us in the King's-Bench, for the several
offences of Rape and Qujigery, of wlucb they
wete indicted, and they Imve received Judg-
ment of Death : but we forbear awarding Eie-
cution, upon a messaae sent from your lord^ip
by sir Thomas Fenstiaw, of his majesty's plea*
sure for the stay of Execution, until further di-
rection from bis majesty: but conceiving there
is great cause to put the malefactors to eiecu-
tion, we thought it our duty lo acquaint your
lordship with the passsftes of the Trial, that his
majesty by your lurdship'ii means being made
acquainted therewith, may signify hit Autfacr
pleasure. — Brodway, who was arm^ed for the
Rape, >eiy impudently dmied his own Confes-
sion, taken before the lords the peers in tb«
Trial of my lord Audley: he pretended he was
amsicd, and knew not what he subacribed ; and
professed himself guiltless, with srent execra-
lioni. He would not be ntisfico, tinleai tbt
«1] STATETRIAIS, •! Ca. 1. 16Si. —iTieTVielqf Fitt-Patrick and BrodKOj/. [i29
Udy i*M prodaced fiioe tn ftce, nhich the "as ;
v*tto b; ber oaCli, ^iixi roce, aadsEed Ibe audi-
(on, liotli concerning the troth of the fact nod
)ii9 an>ii impudence. — Fitz-Fntrick, uh» was
anaigned loi the BujEgcry, confessed bis Eiu-
ininaiioii la be (rue^ but like oae ver; igno-
rant, or rather seDstlcss, would have tl'^eiii true
against the lord Audlej|, and nut ttgaintt him-
seif^ which irn> impo^eible ; he (iretcaded be
was pnunlMil security from danger, if he would
UUJtj against the lord Dudley; atid mi sought
CO raise a suspicion, -as iF he bad been wroDght
upon, to be a witursa to bring tlie lord Audley
to his and. The; ivere both iuuud guilty, to
[he full satiiiattiDn of sll ihnt were pieieot ;
and ne'fur our parts thaughi it to stand with
the honour of coaifaon justice, thst seeing their
testimony had been tnken to bring a peer <>r
the realm to his death, for an oHeuce b3 much
tbein as his, that ihe^ siiould as well sulFer for
it •» he did, lest any jealousy should nrise about
the truth ol' the fiici, and ilie juitness of the pro-
ceediDgs. But upon receipt of your lorribhip'j
Message, we have stopped the Execution till
hit mnjesty's further pleasure be known ; to
winch we shall humbly Bobmit ourgelves, and
rest at vour lordship's command, N. Uj-de, W.
Jones, J. ■\Vhitlock, G. Croke."
Tile king by ibis means being truly inrormed
how thiols stood, signified liis pleasure, that
iliej should he executed, but to have a week's
time fur repentance.
On Wednesday, the 6ih of July 1G31, they
were brought to 'riburn ; where, wTicn tlie exe-
cutioner had lied ibe halter about Fitz-Pairick's
neck, be said ;
" Fornsmoch as I am here, and, ns it were,
opon the instant to tuSer death, I desire all
laving tubjecis and members nf the church of
Rome to pray for me." Then he proceeded to
praT toourSaviour, his Mother, and the Saiois;
ia wfaiib be was interrupted by some genile-
men, who told him, thai the beginaiog of his
5w«er was good, I'nr thnt he nflered it to Christ
Mill, in whom onl^ uilvalion is to be found ;
a* for the Viigio Mary, and the Saints, iliej'
could do him no good. But not withslan dine
he peisibted. saying, ■' O yei, the blessed
Virgin never fursoolt or fiiiled any that irusO
«ii in, or called upon her ; and therefore
kt would depend upon her and ilie rest of
. the Saints; and so proceeded lo an exhort-
ation to Mr. Brodwny, to cleave lo.tlie same
opinion, and die in the Komish taitli ; for which
to bav« him do, be said, if he had it, he would
give the whole world." Unto which motion
Brodwaji gave no answer, or seemed not lo re-
Krd it. " Then he proceeded to shew how he
d been examined by niy Lord Chief Justice
bnicbins the corruptness of my lord of Castle-
haven'i life, wherein he said he confrsKtcd no-
thing to prejudice the said earl.
" That being wiUiin three daysafier sent for
b«fi>re the hirds of the countnl, mj lord Dorset
lad entrapped and ensnared him to bis destruo
tioii ; far >ayin| apon his honour, and speaking
it i« tit* plum number (u the tamtli of the
whole board) that ivbatsnever he delivered
tbonid no ways prejudice himself, lie iherf-by
got liim to declare the earl guilty of the siu of
Bujigery; therein himself being a mrty, was
the only cause lie cume now to eullf-r deatli :
for which )ii« lordship's ; kill and policy in .sifting
him, togctlier with a dispensation of Ins piu-
mise and oath, he fiecly fnr]^rc him; siiying
further, the said lonl had done him no Htmig,
lieciiuEe be therein uas but nn inslrumunt lo
tend hinn out of this tvorld inm a better. 'I hen
tie demanded of the coinpaiiy, if llie Ctrl I'ciiied
the sin at bis drntb ; and wished my lord had
not (if he did) for it was loo (rue; liis l(ird'>hip
hnd both buggered liim, and he his lordalii|).
'i'bnt it nas true (for some private di scon teut-
nicm) he bore a htlle malice to the enri and
Skipwith, fur which be a^kcd God furgiicness.
Thai, for Brodway, if he had ilone any thing to
tlie countess, lie did it not out of his own ill
corrupt nature, but was provoked and persiud-
ed tnit by ihe earh
" He cleared the young lord, as never being
any occasion or means of his lather's death, la,
hiring, or persuading him to give evidence, us
lie had done. He confessed he bad livL-d an ill
he had deligliled in driuting, whor-
ing, t
1 nllm
of uDclee
he was heartily sorry, so be doubted not of
mercy nf Almighty God, to pardon and forgive
him all bis tins, inrongb antl for the merits Hnd
mediation-sake of Christ Jesue,ihe Llcssed Vir-
gin, and tlie Saints in Hearen.
" That lie had tkllen nr tun ioio ibrse sins,
(and espeuially tlint which he came to ilie liir)
by reason be had neglected, and not so duly,
as he should have done, repaiitil to his ghostly
fiither, to mnke confcisioii, nnd take .instruc-
tions from him. Hint nficr he did make con-
fession and bis sins known to the priest, he was
not only sorry for tliem, but also resolved licver
ro cunie inm my lord's house ajtnin ; hut it was
throujih frailly, and hrcause he was hut fur-
nished of another place.''
Su turiiiiig again to Brodn-av, and persuad-
ing him lo embmce the ttomish faith, wherein,
as he perceived, his labour «as in vain, so tha
theriirnnd other persons of quldity willed him
to forbear, and shut up his discourse, unless he
hnd any thing more to say to tlie (itirpoae.
Whereupon praying fur tlie king, queeu and
^taie, be beiuuk himself to private pmyer, nnd
therein for the most paitconilnuid to hisdenlh.
Brodway came, (and a» it was thought by
the company, a true penitent) aod'ofler fetch-
ing a deep sigh at the eight of tlie tree, he lilted
up his eyes and ha.nds tonards Heaven, making
and saying to himself ti«u short pravers ; so at-
teiiiliiig Fitx-Pnl rick's l^^ClUlrse, lie sat in pit-
late meditntii>n, often making it manifest tw
was in pmyer must of the lime, and also re-
joicing at the asEenihly's well wishing of hiui,
fiir which he returned smiles and ihanks. IJii
time being come lo stund up anil liave ihe lial-
ter put about his nrck, and so decbre hiinaclf,
he willingly suffered the one, and firoceeded to
tbeottter. First asking Fitz-Piitrick if he 1|h4
423] STATE TRIALS, 7 Cii.
done, he pulled a %hett of pnpcr
)>ucket; wtiicli being writ braaifnavs, hi^ could
not spreud it 10 reail, iberefore dcnred to have
liU hands untied; utiicli wii!» done, and he
nad k dulbcLlv, to tho aucmbly; the effect
nherrofwHg, lu declare hiiiiAeir guilty, in iLe
•ight of Atiiiu;htj Cud, uf death and dnmna-
tiuu ; liir tlint he liail broke nil the cominniid-
meriis, in thoiiitiit, irord, aiid dted, nud sinned
in pride of life. Inn of the eye, cuiiceit of bis
own beauty, matchlesE slreii^th, and other
natural |ifts, in desire uf teveoge, not pitying
the poor, unlawrut riches, i)i>t repairing to ser-
maiis, nut obiervini; the Sabbath, &c. For all
which, and other his sins whalsuever, he both
desired iif, and trusted in God fur pardon, and
that ihriiiigh and lor the only meiils of our
Saviour Christ Jesus, his bitter death nnd uat-
sicm. He expressed a stroni; assurance, which
his very soul had. orf6r|;iTeuesf, in that, through
tile assistance of the Holy Ohust, he had laid
such hold on Chrittushe had done. This paper-
writing cnntnined the cantcssion and pmyer ;
uiso (as I remember) somcthiug of hi* >leiider
Euiltinest and desert nf deotli, hut nut so much.
Then dclitcriao his to tlie slierifT, lie opened
n little book, intitled, * Lenrn totlie,' and de-
ki'cd theconipiiiij Co jninirithhim; so reading
mer three short prayers, ilielniit whereof was
composed only of cunfession, nnd fur pnrdon,
which prayer lie prunouiiced with great com-
foit, at every Amen clapping himself (in the
breast ; he closed it up, and piivc it to his
ghnsrly fiither, a minister and kiiibiunn (if l-is,
nho came olon^ with him on horsebntk close
by the can, 'J hen he pulled nnc a little paper,
n'hich contained a prayer of his own making;
nnd Khen he had read it, and even one jnined
wi'h him in the Amen, he coniniended ii also to
the sherilf ; and then throwing anny his pos^
of flowers, he roused himself end said to this
ctfect:
" (Jeniiemeo, though true it it, what I for-
merly luve delivered loiiehing my guiltiness ^nd
descit uf deaili, my meaning was, und is, only
in respect of iny tins towards God, and no fni^
tber fur hreach ofthelaivs of the kingdom, tlu-in
only lying once with the lady Castleliaveii,
ihrongti pcreuttkicin of the earl, who was then in
bed wiih her : unil using some small fnice for
the purpose,! did emit, but not prnelmie her
hody. I'canie not to my Inrd with n desire or
inienl any nays to serve him, but was rither
inclined for the sen: only Mr. Skipwiihhad
drawn me ihitlicrfor society-sake: and ttoe hear-
ing from my frieuds cui'cerning my intended
Toyirge, and beint; more kindly respected by tlie
eail tlian I looked fii^ I Maid from week to
week, nnd from month to month, contrary to
my inteoiion Then my lord, mnking me his
bed-fetlow, did one day, when Skipwith was
with him in the garden, (hut walking some-
what Bjiart) bretik out in speeches to me to this
pDrpiKc: Ilrodwny, thou art young, litiity, and
weH favoured, and ll)erelbie canst not but pre-
vail with any woman ihuu attempiest.- where-
fare fur that I am old, and canuot live long.
1 631.— Tilt Trial qf Fiiz-Fstrick and BroiKoy. 1*4*
of his my wife wholly delighting in lust, which I am
neither able nor willing to satisfy, thou mayut
do well to lie with her : and so plea-ing ber,
after my death marry her, aod lliereby nii>e thy
fortune. FitZ'Catrick knows niy lord had soli-
cited me agaiu and again, beaniig bin use this
language when we have been in bed logeiher,
and lie lyiiigat (be bed's feet." Which to clear,
lie chained Fiiz-Patrick to spenk his knowledge;
who rejilieil, " Twat true.'' Thenbe was asked
hy one of the lords, " Whether when my lord
solicited him, wj lady desired to hare Itiui kiww
her carnally V To whom he said, " No, be
would not wrong her, though she hated him in-
finitely. But," said he, " I know well, if 1 were
minded, and able to profier, she would nut say
nay i for Mr. Skipwith and Amptil lay uith her
common! y."
lie added, " That Shipwitfa confessed to him
hehad often known h^r, and gotten a chiHupon
ber, nliich she, like a wicked woman, hnd madi
away: which was the only and sole occesion
he the said Skipwith now hated her, and there-
fore had turned to the young lady Audley; all
which he presumed bfeipwitti would confess
upon his oath. That the coonie*s was the
wickedest Homao in the world, and had
mor« to answer for thaa any woman that lived,
as hetbonght." * .\t which words, thatLotd
which asked him the fomier question, said.
Grow not into a passion, Mr. Brodway, tad
speak notliine for tnidice. lie answered,
" God forbid 1 should, I am in charity with ail
living people, and do ns freely forgive mj lady
Castlehaven, as I d'l desire Otjd to ybr^veme:
but what I speak, is tru^ as I shall presently
answer bofure him that redeemed me, and
the Holy^iho-I whn sanctified me: To whom
he nit honour and glory, now and for erirmorc.
Then heproceederf farilier, and said, " That
my lord would hiive hod himflone it longbefi»rB;
fill- one night coming to him to his bedside, be
cnnght him, and bid him come to bed to him
nnd his wife : that thertMipon be made to him
as if he would; hut heing gnt froui hiai, de-
pnried the chataber, never intending to do so
liiul a deed ; and that for the reasons afttreiaid
he hnted her of all women Hving. Uiiwbeit,
that one time, sntiifying my lord a desire, be
came to bed to them, where (being grati'jsd)
nnlure provoked biro to a kind of desire, and
he emitted, hut did nut enter her body, as ha
hoped for salvation; that he never knew any
woman carnally whibt he lived in my lord's
" That it was not his inttntions to bring to
light either my lord's or taj lady's sbame ; bat
that when he was upon his oath be cnulif not
hot speak the truth, his nature being never
prone to lying ; or if it were in his youth, the
KOt>d correction of his parents had weaned him
from it, saying, thnt bis mother hod often told
him the ol.i Proverb, ' A lyar is worse than a
thief;' and he tliought he had mare stripes for
that than all faults el-e whatsoever : that he
had, 0* be- hoped, spote uuthiag of tiioount
483] STATE TRIAI£, 7 Chauu I. IfiSI.— IVTHoJof /omoXonf CUUftrv. [426
■funat mj lord at his ami^tuDeDt ; he could
not now remember cverj ttijng; if be had, he
desired pnrdoD." Ana lo concluding his
Speecli, prepared bimielf for death; pulliiiE;out
a Uced handkerchief, he deiired the cxecii'
tuQer to tie il aboal his head. Then pulling
offhis gartrn, and unliultoning hii iloubiel,
Mr. Goodcoale, tbe mioister, nsked him, if he
Kould nol hnve a Psalm. He said. Yea, with
alhmj lienrL Then he read the 143rd psalin;
whirn Mr, Broadway, pulling up tlie handker-
chief, sung very cliearfully, never changing
colaar at all. Tlie minister desired him to
make conTeisionof his faiihi so he pronounced
aloud the belief.
Mr. Guudcoale said, These are tbe Articles
of the Chriitian Faith according to ihe Ciinrch
of England, inu which faiih ^-ou was bap-
inteod ID die .' lie snid, Yd; for ihere is
otlKr &itb, (as 1 soppose) In end bj which a
man cao bciarcd. Then ' be roade request ta
the sherifis and those of his kindred [here, that
he might be buried in his own count/y. It
was then Cold him, that it was graDted, and
order taken to have it BO, wherefore he should
now mind his prayer. When bis kinsmao
asked him, if he had never another prayer in
his pocket? he said. No. Then asked Mr.
Goodcoale, if he would say after him i And he
sflid, Yes, wKh nil my hearty but first he de-
sired the eiecutinner to tie his hands again.
Which being done, Mr. Gaodco^e said a short
prayer to recommend his soul and body to
Almighty God, in and for the merits of Christ's
death and passion : to which Brodway and the
people said Amen. Tlicn lifting up his handi
to Heaven, he said, ' Lord Jesus receiva my
., , .nd the
Fill-Patrick lifting up l
mending himself to God, w
IWftJ,'
139. The Trial of James Lord Uchiltbif., for Calumnies and
slanderous Speeches against James Marquis of Hamilton; and
the Earls of Haddington, Roxburgh, and Buccleugh, tending
" to the sowing of Sedition betwixt his Majesty and the said
Noblemen, at Edinburgh: 7 Charles I. a. d. 1631. [From
an authentic MS.]
simo, trigesimo prinio.' ' Fonismekill as the
king's ninjesty, by his letter directed to the
lords of his priry-ciiaiicil, having signified bis
royal pleasure and direction, that James lord
■ Uchiltrie, whom his majesty hiis sent home
to be kept in close ward, shnll be (ryed and
censured according to the Inwa of this king-
dom, for some Inf<)rioaliui]s given by him, re-
' fleeting upon some noblciucn and counsellors
of the same, before what judicatory and judges
' the said lords should think Ijt end competeDt
' fnr ihnt purpose: and his majesty having, lo
that end, sent down to the snid lords snme
■ Depositions under ihe lord Uchillrie's own
' hand ; and the authentic conies of others,
■ whereoftho priiicipnls are retained by his ma-
'jesty, because they likewise concern other
' persons. And the said lords having read and
' considered the same Depositions, and having
' taken into (heir consideration, which is the
' most proper Judgn)ent for trying nnd centur-
' ing of mattera of tliis kind ; they luive all
' with one voice found, and fiy *e tenor of
■ this net, finds and declares, 'That the Trial
' and Censoring of the said lord upon the
' particular aforesaid, is most proper and com-
' peient to be fdlloned out before his majesty's
' justice : and therefore ardsins sir Thomas
' Hope of Craighnll, knt. his majesty's AHvo-
' cate, to form and draw up the said lord Uchil-
' trie's Dittay ; and to pursue him criminally
' thereupon, befcire his majesty's justice, upon
' the last day of NovemW instant; and or-
' daios his majesty's said Advocate to give a
. D. N. R^gis tenta in '
preturto burgi de Edinburgh, ultimo die
laensis Noieinhris, A. D. millesimo, sexcen-
tesimo, trigesiuio primo, per hunorabiles et
discretos viros, Alagistrns Aleiandnim Col-
ville de Blair, et Jacobnm Robertoun Ad-
vucatuin, Justiciarios deputatos nohilis et
potentis domitii WiQieimi comitis de Stra-
therne et Monteith, dom. Graliame, Kil-
bryde, et Kynpont, prssidis secret! Cnncilii
et JuHticiarii generali* Dom. S. D. N. Ke.
|is (otius tegui «ui Scoiic, uhilibet con-
stitut. lectis vocatis et curia legitime affir-
JaMES Lord Uchiltrie delaitit o( the making
of Lensings, Cnluniniei andslaudenmi Speeches
against Jumes mnrauis of Hamilton; the eerit
of Haddington, Itoxburgh, and Buccieuiih;
tending to the soxiinE of Sedition betwixt his
nnjrsty and the saitTnablemen, Jiis majesty's
loyal subiecti ; in form end manner specifyed
and set down iq his Dittay.
Pursuer, air Tbonms Hope of Craighell,
knight and baronet. Advocate t« our sovereign
lord Air his higbness'a entries.
My Lord Advocite produced an Act of
KCTft council, commanding him to pursue
Jimes lord Uctiiltrie, now entered upon pannel
for the crimes contnined in his Dittay, of the.
which Act ofCouncil the tenor fullows -.
427] STATE'VKlALS,7CBiMat.l63l.~T%eTriai^JaMaLordViA^ttv, [428
'iuat cofj of the DiMay to the soid lord
■ Ijcbittne, betwixt aod tbe 34th (ifNoTCniber
< at night ; to the ifltent he laaj have time to
' be advised therewith, and to consult his Adro-
' cales, aiient his lawlul defGncei corauctent to
* him against tbe same, Anent tJie doing
< whereof, the eiitiact of tliis Act, shnll be unto
' bis m^eftj'i said advocate a warrant, ' £i-
" trsctum de lihris actarum secreii concilii
" S. D. N. R«t(>s, per me Jacnbum Prymroil
" Clericum cjusdem sub meiisignn et sub»crip-
inniialibus, sic subscribitMr James
<• Prvo
After prod uci ion and reading of tbe which
Act of Council, wy Lord Advocate also pro-
duced his niajeaij's letter, direcled to ibe
lords of his majesty's privji-couDcJI of this king-
dom, dated tlie 24th of Sept. 1631, togetlier
with two Depositious of the lord Uchiltrie s, the
one dated the 30th of June 1631, the other
upon the 94th of June 1631. Then three
leveral Depositions made bj Donald lord Kea,
trhereof two tliereof dated upoo the SUt of
June 16S1, and the third upon the 31th of
June 1631, all true copies thereof under the
bands end subscripUDD of the Committee of
the Council of England. Of tlie which Depo-
•itions and Letter above-written, directed by
bil mBJeit; to the council, the tenor follows.
In the tint, the deposition made bjjames lord
Uchiltrie upon tbe SOtb of Juae 1631.
Tbe «aid Enamiiiant saith. That on or about
the 6th or 7th of May last, nt the sign of tiie
Bear neiu- lUe Bridge-foat, the lord Rea told
this ezaminaiit, that soldiers end travellers did
often hear those things, whereof thoK that
■laid nt home had no notice ; and snid, he did
' believe there was a plot ngaitiit this land. This
Bxaininntki wished him, if he had any good
grounds so to tUink, th»t he should not fail to
discover it. The lord Rea said, he had no cer-
tain ground, but if he had stayed but five
weeks longer in the Low Countries, he would
have kuuvn the certainty ; and that he would
have hazarded bis life but he would have had
the certainty. The iSth of May tbe lord Rea
came to ibut Examinant's chamber, and there
putting this examinaat in mind of the former
tpeecli between them, he told this ^xaminant,
that be had lenmed more certainly than cvei
he liad before since the time of their last speech ,
wheieupoQ divers paiaagei were betweea bii
lordship ajid this eiaminant, about the disco
*eryorit, and the manner. In the end lii<
lordship told this eiiminaut, that the purpOM
of tbe tDorquis of Hamilton's Levies (as diven
of bis commanderH and followers had informed
him tbe said lord Rea) was, that either they
should not go out of England and ScotJaod, or
if they did, they ihould return to England or
Scotland, and sarpriic the kiojft bousts in
Scotland, vii, the castlei of Edinbiu;gb, Strive-
ling, and Dunbuton; ajid fattify themselves
in Leith, under prctrac* of traiainii sad
sliould take Berwick, and m march forward
into England. And this Eiamiiiant askbg
what couhj be their intention so to d'l; tbe
lord Rea said, that lie was infurmed they
meaned to take the king's person, and to im-
murate him, to send the queen iuto a cloister,
end to capiivate ihe young prince with bis
fauer, and to strike uff the heads of all the
principal men about the king, botb English aod
Scots : and in particular the Lord-Treasurer of
England, the earl of Monteiib, air Williaa
Alexander, and sir Thomas Hope. And this
examinant lotth, That before the lord Kea dli-
covered the particularities aforesaid to tbii
eismiaant, this examinnnt using persuaaiotis to
him to reveal il, asked tbe lord Rea what it
might be, snying, it wna either a French or i
Spanish taction. To which the lord Rea said.
It wes neither; but tohi this ^eiamiaaDi wW
it was, and 30 revealed the particulars above*
mentitjned. Wliereupon the lord Res being
fully resolved to proceed to a further discovery,
ami thinking it filter to be done by this exs<
minant than by himself, lest those whom it
concerned might tooner buspect it, desired this
exnmiriBUt to ocquainthis majesty orthe Lurd-
Treasurcr therewith.
Ou tlie morrow, being Saturday the 14tli of
Mar at night, this Examinant caiite to have
spoken wiS the Lord-Treasurer; but his lonl-
ahtp htant gone to bed, by his appointment,
this examinant came the next morning, and
told him, he had somevibnt to reveal (hat con-
cerned his majesty, and all Iuk kingdoms aad
posterity. The Lord-Treasurer thereupon went
instantly up lo the king, and after, the saoia
day, told this ex ami nam, that his majesty bid
given him commission lo hear this eianiinant'i
reblinn. This eioininaiit further sai'b, Thit
the lord Rea tuld this eiaminant, tliat be had
much of this beyond sea from Robert Meldnna
and David Hamsay. But since his coming
into England (ns he said) he had spoken with
air James Ramsay, sir James Uamilion, cok
Alex. Hamilton and captain Douglas, and had
gotten soioewbat out of every one of theoi :
he also sail!, be had spoken with the lord Se*-
forth, and understood saraewhat from bim.
On Monday the lOtb of Way, this Em-
minant attended the Lord -Treasurer et While-
bail ; and entering into a relation, in the very
beginning discovered, that the matter which he
was lo relate concerned the lord mamuis of
Hamilton end his actions ; which »o toon al
be bad named, the Lord-Treasurer comlOandM
him to say no more, until he bed acquainted
the kitig Bgnin ; but wished this examinnnt ihit
he end tlie lord Rea sliould eg presently lo
Greenwich, where the I^rd-Tressurer wodd
meet them. But the king lieing come towatdt
Whitphnll, this cxaminant and tbe lord B^
came back again, and vrere thpii appointed by
the Lord-Treasurer In attend liis majeit^ on
Thursday at ten o'clock, which ihc* did. The
eteminent further sail h. That on Monday lb*
16th of May, this cxaminant delivered lo the
Lord-Treasurer a List of Nonies, to represMt
429] STATE TRIAIS, 7 CBAM.M I. IMI
(B bb (DBJestj tbe rtrei^b uf ike lord UuBt)-
ton's pariT and wlberniU in Scotland. At
ibis ezBiBiBuit's coning to liis mRJest]', ibia
cinmimDC told rhe king, iliat ibe bunnees was
> Treason intended against his majestj, and
the pan; «» tbe marqais of Hacnilton, as tliis
eiaminant waa informed ; and thai it wn> the
filtUrsC treason that ever was intended, and
was aorrj that any Scottish man ihovld hare a
band in it, for it was a shame to the whole na-
tioo. And then the lord Ren bicnself coming
IB, naada reintion to his mqesty, who remitted
biin to tbe Loid-Trei surer ; whereupon this
eiaminant coming lo the Lord-Treasurer, and
telliag bint the king hid remitted the lord Ilea
onto him ; the Lord-Tjeosurer wtsbed, that
ibeltml Re* would {>iit his relation in irriting.
Whereupon tbe lord Rea and ihit examinBot
Heat togelber, and aat up ell night; and the
lord Rett fint putting it into writing;, this ein-
jniaont wrote it out of the lord Rea's papers,
wba rm ibe morrow brought the same lo the
Ziud-Treasurer : bat this exnminant was not
tbeD present ; but tbe next time that he cane
to tae Lord-Trea sorer 's, being asked hj him
wboae the hand-writing wai, this eiaminant
Mud, it was )ua own band ; and tiie Lord -Trea-
surer telling him that the lord Rea had not
■ubsdibM it, this eiaminant snid, he would
witboat- doobt subscribe it. And kbnul two
dajs after be brou^t the lord Rea to the Lord-
Treasorer, who read over the whole writing,
and subscribed bis name to it, sailing, he would
Mai it with his blood,
Th'n EiBOiinsnt further confestetb. That be
tM the Lord-Treasurer, that the lord Rea
■old him he had yei more, and would say so
Wanda, that ibe marquis abauld not hare the
btx to denj it : which the lord Rea then pre-
aent B&med ; insomocbastbcLord-Treaiurer
■aid, Then is tbe buiinet* at an end, there
needs bo writing.
This Eiaminant further soith. That on the
Sonday inorninj[, when the marquis of Hamil-
ton earae out of Seotlsntl, the lord ^a told
this eierainant, that he liad spoken witb the
lord Seafortb, who assured him their purpose
WM to take the king, the queen, and tbeprinc^;
and this eiaminant asking how thej should ef-
fect it, the lord Rea replied. The lord Seafortb
had UJd him, they were great with the earl of
Dorset, who hai! the custody 'of the prince.
And tius eiaminant further saith, ^bat ibe
lord Rea told him, that he was assured by m^
lord of Roxburgh, that tbe marqnit and his
company would hasten their puipnse ; anil the
IokI Rea aaid, that sorely the Hnihiltons had
taLtai some rent of the business, and that sir
James Ramsay had told him, he had 1500 men
in nadinesi upon an hour's warning, but ther
thonld not come about London till their busi-
ness was ready withal ; which ibis exantini
tbe same moming acquainted the Lord-Trea-
anrei, to tbe intent that his raajeity might
fcoow thereof.
And (artber laith. That shortly after (he
ford Rea told hiai be bail (poben with the loid
.—/or Cs&EmnuT and slatder^ia ^xeeka. [4,30
Seofiwtfa, who told hin, that the mattei' whieh
he had formerly told him conceroing tha earl of
Doraet, was but a di^uiied thing.
This Exammant further saitb, Thnt en diaC'
Sunday morning be wished tbe Lord-Treasurer
*~ advise the king, that he efaould eo to London
r more safety ; and understandiag the king
d sent for the lord Rei, this eiaminant
wished the lord Rea were not sent for, because
the lord Rea was gone to the lord Seaibnh's to
leam more : And ftirther taith. That the same
being in the end of the king's dinner, this
eituninant told the king in these words : * Sir,
' we know the bosines), bnt know not the
; and therefore, sir, either do or die.'
In the Einmination of Donald lord Rea, tak-
en the 91st of June, lS31,tbe said exsminnne
saitli. That bating heard in Sweden from Da-
rid Ramsay, such things as are contained in
the written Reintion which hath been delivered
to his miyesTy; and before hiving heard in
Pomerland tliose passages from Robert Mel-
drom whiofi are in tbe same relation, this ei-
aminant baring a resolution tu come fgr Eng-
land about December last, was stayed in Den-
mark by reason of tbe ice, so as he came not
to Halland till about March last, where he had
conference with Darid Ramsny, and hearti
from him such other passages as are contained
in tbe sane relation. And itkr coming into
England, because Darid Rnmsay had told this
emminant, that be would write to ihe marqnis
of Hamilton, bow far forth the said David
Ramsay had trented with this eiaminant, thif
examinant expected that tbe marquis would
hare spoken thereof unto him ; he did (here-
fore forbear to say any thing thereof; yet
about two or three days before tbe \ot6 mar-
quis went into Scotlund, this eiaminant did
speak lo the lord Uchiltrie to this parpose :
That bis lordship was better acquainted than
this eiaminant wiih the fashions and laws of
this land ; and desired to know what danger it
was, if any man hearing beyond sea of things
that might be dingrruus to tlie king or state,
should not speak of it. To whiefa ihe lord
Uchiltrie answered, No teas thnn year head
and ettare. And this was all that pasted be-
tween them at that lime, being the first tima
theyspake thereof; and the place was, as he
thinketh, at ihe lord Ucbiltrie's own lodgings.
He further saith, TIrat about eight or ten
days after, this eiaminant coming to the lord
Uchiltrie's lodgings to talk of some other busi-
ness, after speech thereof, spake to this effect :
My lord, you remember I asked jou a quFstion
awhile since, what tbe danger might be, not to
speak of matters dingerous to the king or state,
which be bad heard beyond the seas, end I
would now again hare 'your adiice therein :
Aud the lotd Ucfaitlrie promiiing his readiness
431} STATE TKIAt^, 7 L'hau.es I. li33l.-,-l\tTrialqfJami LordUcliHtrie, [493
to adviM him, m u he i^ight be acquitinted
ifilb the puticular, (his emminant tuld him,
lie would ac(|iMiDt tiiiu witli the pHiticalar, if
be would iweai not ta discover it but as lie
shuuld direct ; adding, 'i'lint if he did utlier-
wjie, tliis eiamiiiBDt would pay liiiu. The
lord Ucbiltrie then s«iJ, and protested, That
be would not discover any thing but as thii
ezaminantsliould appoint; wbereupoii thiiexa-
iniiuDC declared the paiticular to him, who
bearing it, toid this eiaoiiiiant it was necessary
to be revealed, and doubted test this eiami-
naDt had kept it too long already : But then
cLis eiaiainont said, Lon>idering it concerned
one so near the king us the lonrauis of Hajuil-
ton, he thought it not fit llial tliit ciaminanc
dwuld himself break it to the kinj^ leit the
king ihoald at first reject it; but it would be
■ fitter fur some other to do it, aod therefore de-
sired hit opinion how to discover it. The lord
Ucbiltrie, advising awliile, said, He thought it
best it were discovered to some of the Privy-
Council ; whereupon tirii eiaminant said.
That be would oot discover it to any Scotsman,
but Mlraught It best to reveal it to (be Lord-
Treasurer, beoause lie thought the Lord-Trea-
surer was no way in the Plot.
According to which resolution ilie lorit
Uchiltrie, a* he aflcr told this eiaminout, did,
according as whs agreed between liim atid this
exatainant, repair to the Lord-Treasurer ihe
sune oiglit; but failing then to ipeaL with
him, he went the aext morning, before this eva-
minftDC law him, and returning, told this exa-
minant he hud been with the Lord-Treasurer,
•nd iu general imparted to him, that be had a
matter lo discov«r which nearly concerned Ills
majesty : Atid sairl further, it was no English
buiinesa, but it was, to his own shame he
•{lake i^ a Scotlisb business, u«ither was it
anj Popisli Plot i And ihe Lord-Treaiurer
then refused to hear it, till he had wamuit
from the king.
Alter the lard Uchiltrie and this Examioant
were appointed to wait on the king at Green-
wich, whither (his Eiaminant coming, found
the lord Uiibiitri^ within with hii miyesty;
and then this eiaminant coming in, made a
fiill relation to his majesty; wlto asking this
Eiaminant wherefore he had not himself tuld
his majesty sooner of it, this eianiinaat att-
swered, Tluit coneideriug the nearness of the
marquis of Hamilton to bit majesty, this eia-
minant was afraid lest hli majesty would have
been impatient towards this examinant; and
if he had IJiought hehnd done amiss therein.
Uia majesty thereupon refetred this eiaminant
to the Lord-Treasurer, and bid this eiaminant
put the Rektinn in writing. Whereupon that
ui^ht this eiaminant and tlie lord U. sat up all
night, and this eiaminant iriiting it first down,
the lord U. wrote it tlieet aller sheet, out of
this eiaminsnt't paper. Aod this eiaminani
brought the lainc written relation to tlie ,Ii(ird-
Tteasurer, and read it unto him, nod left it
witb fain. And a day or two alter, ihit eia-
minant and the lord U. came agnin together to
the Lord-Treuurer ; the lord U. having told
him, that this eiaminant bad forgotten 'U sign
it ; and then ibis examinant signed it, sayiiig,
he would make it good with his blood.
At which time this Eiaminant remembeti
the lord U. told the Lord-Treasurer, that thii
eiaminant had more to say yet, wliich this ei-
aminant did then also affirm; and the coute
wherefore he did affirm it, was, because ibii
eiaminant bad ipnken with the lord Seafonb,
and had some particulars from him, which he
did not particularly tell lo the lord U- but ti-
finned to him in the general, that he could siy
DO more; but a day or two aAer, this eiami-
nant went again to the lord Seaforth, and )psk*
with him, and then he told.lhe same, first to
the lord U.
He further saitli. That the lord Uchiltne, m
Sunday morning, told ihis Eiaminant, that be
had been with the Lord-Treasurer, and had
told him of the passages with the lord Seaibrlb,
aud of the marquis's return, and that be coa-
ceived it might he dunj^erous at that time far
his iiinjesty. But tijis txaminant told him, be
had di>Qe evil therein, for tliere was no sudi
suddenness to be feared : and on the sunt
Sunday in the afternoon, this eiaminant coin-
ing to his majesty, and hearing from Inm, that
he had been advertised of somewhat hnponine
matter of present danger; ttiis eiaminant saiiC
he hod been with the lord &eafunb, bat bad
not ibe ceitainty of things, but prayed his ma-
jesty to give him leave tugo again to lbs lord
Seaforth a, iuid then he woulil learn all. And
nt tlie same time his majesty teltiug whatdin-
ger had been suggested (o him, now upoa iJi<
niHRjuis's return i this eiomiiiBUt protested be
knew nothing against the person of the oiarquii;
hut (hat he was, for aught (his eaaminant knew,
OS good a subject as any the k ing had.
d Rea's second ]
It of June 1631.
The said lord Ren, having deliberately heird
rend the Einminatiou of James lord UchilHie,
tak^n the 20th of (his instant, duth acknow-
led|ce the same to be true in all points, to fir
as toe same concemeth the kuowledge, words
or acts of this eieminnnt, saving the eiplana-
lions hereafter faUowing : He snitfa, that s<
touching the conference between the lord V.
and ihii eiamiunnt the 13tfa of May last, ivhere
it is therein mentioned that this eiainiiuuit told
Mm, (hat since the tune of their last speech,
he had learned mure certainty tlian eter be had
before; this eiaminant did not tay, that he
had learned more certainty since their last
speech, for in truth he hud not learned auj
thing within that time. But thinks he might
■ay, that he had learned more certainty since
he come to England than lie bad before; and
therefore takes it, that the loid U. did mistai^a
m that point.
And whei-eas in the same coDference it is tet
down, that tliis Examinaot ihould sa; that he
was infurmcd, that (he; nwant to strike oftbi
433] STATE TRIALS, 7Chaw.es 1. lO'Sl—MCulunmuteuidiUmderous^^ieKhe*. [434
hmilc of bU the pri Dcipal ineu aboot the kioe,
ihii exiiminaiit liiiil, iniit he wm informed iliey
would strike off ibe beiuU of the Spanish Ihc-
tioo ; sod thit be naoied the Lord-TreMurer,
the two biihnp>, the carl-ma nhal, the earl of
Cailisle, mi Fraaci* Cotttugtoa, the lord Miin-
teith, lii Wni. Aleiander, and sir Tliuiuas
Uape, and likewiBe air Keoelm Digbj, auii
«]MK« of none other, nciitier in geotral iinr
jmrticoliU' ; and sailh, that he was k> infurmed
(Ouchiog the Spanish taction bj Mr. Meldrum,
and David Itumsair ; and touchius ibe Scots hy
the earl of Seat'ardi. And saiih, 5wt Mrldrum
and David Hamisaj did name the- aforesaid
£(i^ishmea tn be of the Spanish faction. And
whereas it is said, that this eiafninaot desired
the lord Uchiltrie to acquaint his majesty or
the Lord-Treasurer nitb ihe uiatter; liiii eia-
mioant did desire him (o acquniiii tlie Lord-
Treasurer, but did not nientiim hit niajesty, but
that it shouU cuoie by Ihe Loid-Treanurer to
his maiestr.
He cooibsaed, he said, that since his coming
into England, he had spokeu with sir James
Bantsaj, sir James HamUton, and capt. Duu-
glaa, and gotten somewhat out of every one of
them ; hut did nut say be had spoken <• itti
Alet. Hamilton, or gotten any thing out of
him since this eiamiiuuit's coining into Eug-
This Examinant denietb, that he either said
himself, or affirmed its being said by the lord
U. that he could say so miicb aa the marquis
•faould not have the face to deny it ; hut said
be could bring as honest a man ns this eiami-
uant, that vrouid tell tu tbe marquis's tace more
than this eiamiiiant wouid do : and thus be
meant by the lord Srafoith. — He conressed
that he said, sir James Ramsaf t«ld him he
had l,tOO men in readiuess, but would nor
bring tliem toeetber, till the parties in Scotland
were fiist readv ; and saiih, lir James tuldhim
as much, and that there were good offireri, And
the earl of Essex, and the ab{>. nf Canterbury
were sureties for some of iliem ; and otlier than
this, he spake not touching tlie 1,500 meu. —
He saith, he was not acquainted with the list
of Ibe name* delivered by ihe lurd U. to the
Lonl-TreBSurer, noT had any thing to do therein.
(Copia m
June 1031.
The said Eiaminaoc coufesteth, that tlie un-
detstandiog which he had of ilic business, con-
cerning the uiaiqiiis of Hamilton, whereof be
hath beeu so often examined, t^ima to bim
frma the lord Rca. He ennfesseth further, that
the paper of Names nhich he did deliver to
tba Lord-Treasurer, was made by this enami-
Dant himself, and the lord Rea wrs not privy
to tbe making of it, or to tlie delivery thereof
to the Lord-Treasurer, till after it was done.
—He saith that the cause wherefore he did in
that po4>er mention the lord marquis to be
piinw agent, was, for thai the lord Bea had
told bim, Ibe lor^marquii't foUowart had said,
VOU 111.
the intent of the marquis's levies was to invade
Scotland. Being tutd, that the lord Rea' hath
been to far from t hai^mg the marquis, tliat he
hatb utHrmed bcf»re bis majesty, that for aught
be knows, the marquis is as good a solgect aa
any the king lialh ; he ansHcreth, if in lendeir-
neM and care of tlie king's safety, and upon
ground of tlie lord Ilea's relation, for the lord
marquis's followers, he have iioneany thing loo
far, be trusteth his mnjesty will impute it to his
Being asked, why, in tbe nforesaid Paper, he
makes ibeeariof Rleltos, thei-irlofRosliurgh^
and the earl ofBuccleUKli to le plotters, snithj
tliat ihe lord ttea told lilm, the lord Seaforth
had afbnned it to him, thni the e:>rls of Melros
and Roxburgh wei« acquainted with thepartt-
culars aud secrets of the business. And far-
ther saith, the lurd Ren bed told him, he could
not guess who else ^h>liJ!d.hc in Ibe plot, unless
ii were tlie lord Biicukugh; of whom the lord
Rea said, he heard Inm spetiV. terrible and pre^
sumpiuoua words agaiiiat the king, at bis owU
table in Holland.
lie inid, die lord Ren did alT.rtu to this Eia-
minant, that be had the aforesaid report of the
earls of Aielros and Roxburgh fi-oni the lord
Seafiirtb, before lie, this examinant, made ot
delivered tlie said Paper tn the Lord-Treasurer;
The iaid examinant doib avow, tliat on iba
I'Jch of May, tlie lord Rea bul affirmed to him,
that »ince llieir former speech, (which wai the
fitli or Tth of May) lie had learned mure cer-
tainly ihau ever be had before. — He cunlesscth,
that whereas in his former Examination, he
said, tlie lord Rc.t told biin, he was inf.irmed
thnt they meant to strike o'S the heads of all
the principal men abnut the king ;' he was misr
taken in meiirianlng ull, and did iini tvcit mark
himself when he so expressed it; his purpose
being to have said, they nould strike off the
heuds of many; for so, be takes it, was tits
scope of the lord Ilea's speech.
Being told that the lord Rea denietb, that he
spake with col. Alexander Hamilton since bis
coining into Eii^ond, he saith, it is possibla
that this examinant might mistake in adding
that nnme to the rest, and therefore will not
contest about that. He doth avow, tliat in
the presence of the lord Rea, before the Lord-
Treasurer, (bis exomiunnt said, the lord Rea
could sny so much at tiie marquis should not
have the face to deny it; and what this ciami-
nnnt snid, the lord Rti being then present, and
bearing; it, did not gainsay. — He saith, the lord
Rea told bim, lir James Rsmsay said to him,
that he had 1,500 men in readiness, and ibe hrtt
time said, upon an hour's warning. But at m
second time, the lord liea spoke nf eight days
wamint! ; aud further, ihat ne would nut bring
them to London, till their business was ready. —
Being acquainted with what John Macky, son
to the lord Rea, had coofies^ed to have been
told him by this exsmiuant. he dotli acknow-
ledge it, and that he said it to John Macky,
after the lord Rea and this examinant bad at-
tended hi) EDajeity aboul ibe same buaiaes^
435] STATETftlALS, TCiAiwsI. l&M.—TT^tyuUifJmiatordVchUiTk. [480
bat did DOt tUnk bis spMch IherMf lo Jofan
Muck]' shnuLd l»ie dune mvj huit hi the
business.
(Copia wro.J The tbirtf Examination of Do-
tiRrd Lord [te.1, token tliE 34th of June 1931.
He aaith, thnt the &r%t time that the lord
Seiiforth hnd anj ipeecli with this F.xnminEuit,
touching the earls nf Melros and Roxburgh,
being Pfivv. to the particular^ and secrets of ilie
lord Hsmdion's business, was on Mnndaj nfier
tbe marquis's coming uut of Scotland, and out
beTore. — He further sailh, ihat the lord Uchil-
trie having some speech with tliis eimminaut,
irbo might be like in Scotland to lake arms, if
the inaniuia of Hamilton should take up amis ;
tlie laid lord U. and not this ciBminnnt, named
the lord Biiccleugfa: whtreupon this examinant
told him, thntHtlfae siege of the Busse, thisexa-
minant heard the lord Uuccleugh use some
tvords, nberebjr this einniinant toot him to
Ctune uiale-conteut out uf Kngtand.
TbeTenofafbisMajeUj'sLettetdirectedtotbc
Lords of Jiis Majesty's Council of Scotland.
• C. B. Right trusty, &c. The lordUchiltrie
*- having been exnmiued before our council here,
• touching some Informations eiien by him, re-
' fiecting upon some of the nobility of that our
' kingdom ; we have been pleased to remit liim
* thither, to be trjed according to the laws
' 'thereat; having to thnt purpose sent you
' herewith ioclosed some Depositions under his
' own hand, and the aulheiiuceopirs of other*,
' whereof the principals we cause lo be reserved
• here, becsase they likewise concern other
' persons. Our tdeasnre i<, that having given
' order for receiving and commiithig him to safe
'custody, you catise try and censure him ac-
' corJing to our s:ijd laws, before whni judica-
' ture and judges you shall thint (it and con-
' petent for ihnt porpote; and for yoor so doing
' these shall be sufficient warrant. Given at
' our honour of Hamp ton-Court, tlie S4th of
* September, 1631."
After this, my Lord Advocate produced the
list of Names, or Representation written and
eiren in by him to the Lord-Treasilrer of Eng-
land, UDon the lOth of May 16S1, to^tJier with
the lord Ucliiltrie's Dittny, of the which List or
Representatioa and Dittaj albreiaid, tbe tenor
fblloweth :
The tenor of the List
RepreKTiution for my Lord-Tteasarer.
The marquis of Uamiltoa is prime agent.
Plotters.
The earl of Melros.
Tlie earl of Ro.hui^h.
. Tlie earl of Buccleugb.
Adherents lo Hamilton, by new llaod and
•Sniiy, and dependance.
' TbeearlofKinihome.
The earl of Abercome.
Theaatl'of Glencaime.
The viscuunc Lauderdale,
- The marquis of Uunilej.
. TheeatiofW^ton.
Thee.
The viscoDDt Drun>l«ni^a.
The eail of Melros batb Jbance and affiuky.
The earl o^ Cassils his sott-iitlair.
The lord Carnegie his sav-iD^aw.
The lord Lyndesaj hn ^andchild by htl
daughter.
The lord Boyd hb erandchilJ by his dgiighter.
The lord Ogilvie hts son-iolaw.
His eldest sun married to the earl of Marr's
daughter; And so brother' in- 1 nw to the lord
ErsSjne, now Keeper of his mniesty's two
principal Castles of Striveling and Edinburgh;
and so commander of all almost of bis majesty's
Ordnance in Scotland.
The earl of Melrok's son ; likewise brbther-
in-lnw 10 the earl-marshaJ, and to Ae eari* of
Rothes and Kinghorne.
Tlie enrl of nielros's second son, married to
the lord Wanchton's daughter.
The earl of Melros himself hrothcr-in-law to
the eiarl of Somerset, and to the lonl Bal-
ms rinoch.
The earl of RoibnrEh. "
Brother- in-law to ihe earl of Perth.
Faiher-io-law to the constable of Dundee.
Father-in-law to tbe lord Phcnirn.
And the said lord Rotbnrgh able to raise of
his own friends and followers above 1,000 gen-
ii em eo in two days.
The earl of Boccltugh.
The earl of Buccleu;;h, nephew lo Roiburph.
Ill* earl of Buccleugh, brother-tfi-Jaw to the
lord Etskyne.
The lord Hayes.
TheearlofWimon.
The lord Sempill.
The lord Ross.
Apud Edinhnrgh ngesim
0 Novewkrii
lord Justice Clerli,
and Justice Depute. The whitk day James
lord Uchiltiie heing present before the lerds
exasiinators above-named ; and the list of
Names before mentiuned being shewed unto
hiiD, and be reqnired lo declare if he would
recoKniie and acknowledge the same to he hia
own band- writing; the said lord Uchittcie, after
inspection and consideration thereof, declared
that List of Names wai written with his own
band, and delivered by him to the Lord-Trea-
surer of England ; fif niitrriUlnr J. Uchiltrie,
ad B. ofDuabUne, Carnegie, Geo. Elphimton,
A. Ci^ville.
Tbe Tenor of the krd Uchiltrie's DiUa; or In-
dictmi
> indicted and
Jnme* lord Uchiltiie; Y
accused forasmekill as by d.
and coriititutians of parl^iltent, made and pub-
lished in tbe day« of our sovereign -lord's most
royal pi-ogeniiors, specially by the 43d act ot
the Itid parliament of Jonei 1, of worthy me-
mory it is enacted, statute and ordained> That
all leuing-OMkecs and tellers of ifaon, wbilfc
4S7] STATE mULS, 7Chau.eiI: IGSl.—MCtluuaiamtdilaiidiroiaapeKhes. [496
m^ CDgMHier diacord bet*riit the king and hi)
p*attt, wherever they ma; b« Kilten, "hali be
chBltenged bj them diiit fovttr has, and t;De
life and gonds lo the kin;. And likewise hy
tbeSSd act or the lixtb parlinnent of kin^
Jams* 1, of eternal memory, benrinK iauch'iag
tbesrticleorLeasin^makenioiheking'sgmce,
of hia barons, Ereat men mm! Iwgef, and for
punishment to be put (o them; IbeMfore it is
tkerebj decUred, that the king's grace, with
ad*ica of hit three eitatei, ratifies and approvej
(he acts and statutes made thereupon ot before,
and ordains the same to be put to due
IMU in all points; nhilki acts of parli
•a dM 90dtb act of the 14tb parliament
•averekn lord's deareit folher king James the
«, of nappy and never-dying memory, and
with •dvice of hia highntsl'i eatstei in that par-
liament yatified, approven, and coniii
or4*ii>ed to be put in execution in
tbcMafter foHowing, m in the said laws and acts
ef parLameat, at lenph is contained. Not-
withstanding wliereof, it is of verity, that hi
the said James lord Uchiltrie, having in iIk
momh of May, *e year of God 1631, last psst
bsaid by relatlMi of Donald lord llea,'tlial
twnain nieech^, snnnisei and information!
were mode to him by David Ramsay, with tlie
baad of Mr. Bobert Meldrum, and certain
otber prreons beyond aea, in Sweden, Pomer-
bod and Holland respectively ; and by the snid
David Ramsay and certain olher persons within
the kingdam of En|(land, aneni some plot and
4a«gerauB purpose intended Hgainsc the sacred
peraiMi of our gracious lord and sovereign, the
tang's most excellent majesty, liii grsctnus
queen, and their dearest son the prince, and
against the land by surprixing the king's ma-
Cy's houses and castles of Edinhtirgli, Sirive-
', and Dunbarton, and forscizingof the Inwn
of Leith. Ye nut being content to retain ynui^
self within the bounds of a faithful subject, by
revealing of that, whereof ye had received in-
fbmuiion from the said tnid Rce. out of a
naKdous policy and .drsiRn, tending to the
•owing of discom and sedition betnixt bis ma-
jesty and his most loyal sul^ects, the lord mar-
qais of HamilioD, the earl of Haddington, the
earf of Rosbur^, and the earl of Bueclcu^h;
did at your Sric meeting with his majesty, which
was upon the 17th of May last past, signify to
bn highness that the buiiiiess nns a Treason
intended Hgninst hii majesty: andlhatlhcparty
was the marqaia of Hilnlilton, as ye was in-
furmed. And lo the eilect his mqesty might
be put in better assurance of (he truth of yoi
■aid speeches, ye upon the ISth of May pre-
■■"■jidelirered, to theloid-trsaanrer of Eng-
a IJst of Ni
jestv, the strength nfthe suid marquis of Hamil-
(on's party aed adherents. in Scotland. Whilk
is ell written dith ynur own hand, and inlitled.
" Represen latin n for my Lord -Treasurer."
Wherein ye name the mnrqais nf Hamilton to
be the prinou agent, and namea the earl of
Meiros, now earl of Haddington, the enrl of
RosbtHi^, mA ibe tvl of Succletighj to be
plotters. Likewise upon Sunday, being the
ead of May last past, at which day tlie marquis
uf Hamiltun (having come putt Irom Scotland
in three days) wasici prraent biouelf lo hisma-
i'escy. And ye tliinking thnt ye had possessed
iM majesty suthcicnLiynith your malicious Leos-
ings and Caluinnies against the said lord mar-
quis; ami thnt his mnjesty being so msligace
and irritnto aj^inst 'hmi, would follow your
mtijesty abrjut the end of liis dinner, and ntost
boldly and mutc-pertly spake to his mnjes^
tbe^ words, * Sir, now ye know the buiiiieM^
' but knows not the time, and thrrvibre. Sir,
' citlier do or die.' By the whilk mnlidont
counsel (if God by his gnce hud not rated ami
directed the heart of our t^acious sovereign to
proceed in ihe business with ercater wisdom,
calmness and nioderalion,) ye by your fortner
wicked cotmsel intended ye thereby did what
in you lay, to wove and cause his majesty, to
put in practice some sudden and xiolent course,
for subveisioD of the life and honour of the said
lord marqnis, his majesty's most loyal subject.
Like as all tiie present articles and passages in
your proceedings, in liae premises, were malici-
ously fotged, invented and practised by your-
self; without any warrant arising lo you from
ttK R«lali(tD of the said lord Bea's ; whilk it
manifest by your owu Deposition, made in the
presence of a number of the council of Englandf
deputed fay his majesty for your eiaminatian,
upon ibe 20th and S4in of June last past. By
the which ye have granted and contiessed tlw
premises laid to your cbarge to be of verity;
" "^ nho doe^ grant that the paper nf Names
ch ye did deliver to my Lord-Treasurer,
said is, was made by yourself. And^liat
lord Rea woii not ptivy to the making ibere-
nor 10 ihe delivery of tha same, to ihe said
Lord -Treasurer. And sic-like in your eiamiu-
ye being inquired for ttliat cause, ye
me the said lord marquia to he prim*
ye could assign no true renson, nor
by any warrant of the lord Rea against
the maniuis. Out b^v the contrary tlic suid lord
Hea being examined upon the SIst of June,
in pretence of his majesty's council, dectar^
that he knew nothing agunist the person of ttja
lord marquis ; bnt that the said lord marquis
was Osgood a subject as any the king's majesty
Jiad. And likewise yc being asked by what
ye did call the eurls of Meltot, llox-
hucgh, ajid Bucclcngh to be Plotters; ye an- '
sivered thereto, thnt the lord Ren had told you,
that the lord Seaforth hnd aOinited lo him, that
iris uf iSlelros and Roxhurgh were ac-
quainted with the particulaiB and tecreis of that
busiucss, declaring tlicreby that ibe lord Kea
had affirmed thnt lo you, before you gave in,
id delivered your paper of representation to
the lord inmsorer. And further, ye declared,
tliat the lord Ilea had (old ymi, that he could
not guess who eke tliould have been upon the
plot, unlesait were the lord Buccleimh. Albeit
the locd Rea being exainioed in presence of his
majetty's couacil npon ibe Mth of Juim Iak
430] STATE TRIAI^ 7 Chaucs I. ISSL—The Trial qf Jama Lord Udaltru, [440
put, declared, thnt the first time the lord Sei-
tbrth liod any speech wi-.h him, aoeiit the earls
of ftlelroa ni'id Itoiibun^i. Mnd iheir being prirjr
to thein>rquiii>rHamiiir>n'Ebu>iiiess,nB9Upoa .
the Mondaj nfter the mnrquis of I Until ton's,
coming out of Sculbiail, und not hefure : and
the marqiiii having come tocuurtfromSrotlBiid
ttpon Sa(urd«y (he Slst of Mny, ondthe repre-
sentaHiin given bj jciu to [lie Lord 'I'redsurer,
caiitaininE the liai of the I'lotrpn and Actnn,
being given in by ym to the w id Lord Treasu-
rer, upon the IQth of May b'efre; ye could
never truly affirm, that ye had named the said
earls to be ploitera, upon pretence of any in-
formacioit received tram my Inni Ren,w]io did
not speak to yon aneni them, at ihe time of tlie
S'ving 0*^ the bnid lUpresenrntioii ; but eight
ays thereiiApr, and surh like. 'Ihe said lord
R«a deponed upon the said '^lUi of June, that
ye, and not he, did nunc the earl of Buccleugh,
as one who would take arms in Scotland to as-
sist the marquis; by the wliilk Lensings, Ca-
lumnies, and slnnd^vQS Speeches, untruly
alotied, deviled nnd vented by ynu, against tlie
said marquis oniamilton, the earls of Hadding-
ton, Rosbnr(;h,and Buccl. ush.in manner fore-
said ; rU of them being his uinjesty's faitliful
councilliirs iind hynl suhi'-cts; ye have man i<
r«itly cnntroverled the leniir of the said lairs.
xni iticurred the pains
inldbetxc
nvd the)
. tlie
to the l<
Tlie Ju8ne<
of death, nhich ought
! upon ifou "ith all rigour.
rid of a
a wa^rnnt and
direction of the lords of the secret council,
tthereof the tenor follows; ' Apnd Halymd-
.' hou-*', vieeiinio qiiinto die n-MisisNov. 1031.
' The Lords ot' tije secrrt council, for some spe-
■ cial cause, nnd considerutinns moving ihcm,
* orilnins and ciminiands hi) mnjeity's juitice,
'Justice-cleik and tlieir deputes, to primi[»e
^ and continue the Dyet appointed lor the Trial
' of Jnmes lord Urhillrie, until Thursday next,
* the 1st of Dec. next to come : whrreaneni
* this extract of the net <lial1 be unto the said
'justice, justice-clerk nitd their deputes,' a War
• ' rant extraoiuin de libris artoruin secreti cnO'
"ciliiS. D. N. rejs, per mcJacobum Piym.
''rose, clericum ejusdeui, sub mils sinno el
" subscript lone mununlibus, sic sultscrlbiiui
' ' Jacibui Prymrose ;' ' Prort^ites nnd conti-
nues the Trial of JinnH lord Uchilirie, iioh
impnnnelled, to the mum the 1st of Decein-
ber uei,t to come, nnd ordained him to be
turncil hack to ward, to be kept in sure fit
Biice, in the mean time : the jury or person'
nssir.e summnned lo this day, ore warned, H/zUif
ttcia to compear the said 1st duy nf Deccml>er
next to come : Ilk person under the pain of six
mniks. — Whereupon the Advocate asked In-
struments.
Curia Justiciarin S. D, N, Recis trnt' in pre-
t»rii> hurei de Edinbureli, prliiio die mensi)
Decambris, wino Dom. millesimo, sevceo-
tetimD, tricesuno primo, perhonorsbilesel
disct«tos viros, rot^istnn, Akiaodcr Cpl-
vijle de Blair, et J acobum fiobertann, id-
vocetum, juiticiarios d^uiatus nobilit et
poieniis comitis Willielmi comitis de dira-
therne et Monteith, dom. Grabame, Kill-
bryde, et Kynpont, prasidii trcreti coucilii
Gt Jusiiciani generali* diet. S. D. N. B^gi<,
totius sui regni Scoiik, ubilibet conttitut.
seclis vocatis et curia legitime affirmata.
James lord Uchiltrie, delated of the criraei
reauids, contained in his Indictment preceding
Tursuer.— Sir Thomas Hope of Craigtudl,
knight and bivnnet ; his majesty's advocate for
his highness's entries.
Prolocutor* in defence. — Mr. Robert Naime,
Mr. Alexander Pierson, Gilbert NeUton, Ad-
Tha Prolocutors for the impnnnelled, pro-
duced an Act of the Lords o( secret council ;
ordaining and i:omnianding tbem to compear
and asiist him, by proponini; of all lawful de-
fence, competent to him on his Trial, and de-
sired the same niisht be insert and remain on
process, whereof tne tenor f>Uaws : ' A pud lis-
' lynidbouse vigesimoquintodie meniisNavera-
' bris, 1031. Whereas James lord Uchiltrie
' has made choice of Mr. Robert Nairoe, Mr.
' Alexander Pierjon, and Gilbert Neitwu, »d-
' yocates, to concur and join with him, for fn-
' punhig of his lawful defences, coDipctent to
' him agaiiHt the Dittay, whereupon he is lo be
' accused before his majesty's justice, upon the
■ Isi of Uecember next ; therefore ibe Lords of
' secret council ordaini and commands the said
' three advncaies lo confer and meet with the
' said lord Uchilirie, tn receive bis informaiions;
' to HCCAmpany and assist hint at tl>« l>ur; and
' ID do their duty anil ofiice in all and evrry
' ihing l)ing to tlieir charge, concerning die
' pruponingflf alilnHful defences, competent lo
'the said lord in his trial. Wiiereaneni the
• extract of this act shnll be to them a wamiit
' ' «xtmctiim de librij actorum secreti contslu
* ' S. D. N. regis per me, n!ia«istnim GilbtrtoD
' ' Pr*mrosp, dericum ejusdem, sub nieini("o
' ' ei subscriptione manualibiu. sic fHl'Tril'iwr
" M. Prymrose." After readiiig of the "hili
Actof Council, the said P r>< I ocHtors protested,
because the present matter of disputation at
m iirdim, anent Treason and Relation; therruf,
from purty to party ; thai whatever the (ii-
genre of the cause rBtjuiresfiom them," pf""''
to speak herein, for clearing of ibe noblemaa
impnnnelled, his innocence, and of the nar-
rniti of his information; that It is not wiibaay
thought of wronging, or taskiiii; of any parlie,
noblemen or others ; but to dii that w'hilk iheir
duty us Prolocutors craves of iliem to lie done,
being commanded hereto by ibe Lords nf his
majesty's secret Council : and ihat ihe purpose
and speeches that shall by God's assisuncf b«
uttered and delivered by I hem in this matter,
may be 50 accepted of my Lord Justice.
Thereafter the Indictment of tlie lord Udii^
trie, bciu£ read judicially, and he accnied of >M
441J STATE TRIAt£, 7 CmaRlu I. IGSl^—MCaiumniaandtl^nderoia^iteclia. [443
critBci thei^n coouinMl ; my Lord Advocate I
uked InUmiieDCa of the reading therenf, uid
of the Bcn of parliainent !>et down in the pii>-
positionorihe t>id ladictinmt. And brcnuM
llie lubsumption of the said Indictment is
lunndad upon certain Deposition* mnde in
Euglaod, in presence of Ave of hi) maiestj'a
ccKincdlori, deputed b^ his niniesl^ to liiat ef-
fect : be Uterefore repeitts the KxuBinations of
tbe lord Ucbiltiic produced yesterday in pro-
ceu,dittedtbe30thaad94ihorjuiielast; itith
the third upon tbeStth of June: and declared,
tliat he used ihe«e Depositions under the hands
and nibscrijitions uf the five councillors of Eng-
land, as auineaiic cupie^whiiL should make aa
good faith. ai if tbe principal were produced,
it ii alleged b^ Mr. Alexander Pierum, as
. Frolocutof nir tbe panoel, that it cnnnot, nor
should not be proceetled against the impannel-
led here in Scotland, but confinn to the laws
and statutes of EoKland ; the place of tbe pan-
nel his offence, (if any be) and not coaform to
tbe inuuicipal laws of Scotland. ' Quia de jure
'judex origiuii vel domicilii non potest puiiire
' ssbdilam delinqucntem extra lemtorium, nisi
' aecundum piznniii imposilam a jure conimuni,
. ' vel secundum Kioluta loci in <|uo deliquit non ;
* autem lecunduni siatuta ipsius loci originis,
' vel domicilii.' Juliun Clarus, quest. 85, numb.
It is answered by my Lord Adtocate, thai
the BJledgente is no wap relevant, eiccpt the
einnd will condescend to the nOevance of the
iitav ; and of his own consent be content,
that the same past tn the knowledge of
ike. Next, it is answered by hia majr*
'vocates that he oppones his mnje^iiy's Letter
direct to the council, bearing, that the impai
nelted shall be irieil according to the laws >
ihii kiii^om. And in the one place it shall be
JDiltlied, that bis majesty's lettei
grounded upon ibe rivil and cnmmoi
It is anstrered thereto by the lord Uchillrit
and iui Prolocntors ; that (he king's Tiinje«y*s
Letter i>, and must be underttood, without pre-
judice, of the pannel'g lawful dereuces.
Item, TIhu the alledgeri crimes contained i
tbe Dittay are, or perchance may be, lawful i
England, and yet criminal in Srutland ; and I
carries no reason tliat the pHiinel should ti
punished here in Scotland, for nny fact roir
milled in England, not punishable hy the la«
of Eii^nd, where the pannel is lutui rafione
loci.
Scmndii, It is ailedged hj the Pannet, th-
tbe subsumption of tha indictment has no di
pendance upon the proposition thereof; bi
cause tlie particutan contained in the subsum^
tJon are no ways the leasiDip lueiiiioned in th
■aid aclB of parliament, whereupon the propo-
lion is founded, especially seeing the Irasintcs
mentioned in the s^iil acts, are leasioes tend-
ing to discord hetwixt the king and his peo-
ple: and the tellioe wbereor is unlawful ar-*
proltibiL But the paniculanof tbe Dittay
Indictment are no ways such. But by the con-
trary, the matter thereof being an heinous trea-
son against the king's majesty and estate; ia
favour uf both, ' propter publicam utilitatem,'
ibcut to every subject ihal shall hear
speeches of such matter, thouKh the matter it^
self be a lie anil uiiiruch, whilk is alike to tbe
liearer, neither does it hilongto him, tn judge
discern therein ; it is incauibeni, I say, to
every subject iiicontineuUy to tell the same ;
the telling whereof tends not to discard be-
tween tha king and his people ; but to sup-
press and prevent the samp, and the cluef
ius« thereof, which is Treason; and the not
Hint! and revealing whereof is punishable by
(he law of all nations, by our municipal law*
and acta of parliament; yea, by the same acts,
whereupon Uie Dittay is founded, viz. James 6,
parliament 14, cap. 305. And therefore the
telling thereof is no ways prohibited and pn-
nithable by llie said acta, neither are these par-
ticulars in tlie Indictment the leasinjp men-
tioned in (he said acts, nliilk is medium roB-
cludrndi in the Dittay. And whilk last act be-
ing the last iu (ime, as it raiiGes, so it explains
the true sense ofthe former.
And furibcr, it is alledged by Giibtrl Neil-
loa, prolocutor for the Pannel, that uot only bj
tbe fotcsuid act, of the 14th parliament of kiiig
James 0, whereupon the Uitlay is founded, is
there a necessity laid upon the impannelled, and
all his majesty's lieges, to reveal what they hear,
~ icerqing his mnjeaiy's prejudice; but likc-
p by the 134th act of Jame* 6's 8th purlia-
iit, it is specially htatiite. That whosoever
irs any speeches to the harm or prtjudice of
' the kiugs majesty's etl.ite, shiUl vvith all dlli-
(■ence lei-enl tbe same to his majesiy, or to
some other, the king's m.ijesly's ollicir,, that
ike the same nianilcit to liis miijesty.
K this n
U additi
[i.thut
le thcK
__ _. done, tbe person concenler, n
tflleror revpaler, shall incur the like puniab-
ment, conlnlned ui the said acts, set down
against tbe principiil le^sinis-inakers. And m
the impannelled whs necessitate, upon no lus
pain than his life and estate, to reveal the same.
It isanswered by his majesty*. Advocate, Tliat
this preceding defence can elude nu pan of the
Dittay; b<-cause the first part thereof anent
tlie lawfulness or (K-CBSfi'y of revealiiia of trea-
son is crantC'l in the Dittay or Indinment.
And ifihep»nneIh«dcoi>tninedhiiiiselrwiibii(
tlie duty of revealing, nlheii ti.e Plot and Trea-
S'.n revenled hadlieen false, yet he would hate
diserved coiiimeutiutinn and re'tard fmm his
master. But the Indictment is founded upon
three parliculan, ti> tlie whilk no aiisiver is
inude ; and wbilks three particulars agrees and
qutidratrs with the natural quality <if the Iea»-
iii.is, contained in the act of parliament, where-
upon the Diitny is founded. Because (hey are
surli, m migli' have engendered discord be-
twixt Ills majesty and his lotal subjects ; in so
lar as it is qualiBed in the liittay, that the ira-
Sianiielled havinc only had his relations from tbe
ord Hen, and whilk relations liad no warrant
443] STATETIUAI^, 7CHA(tLE3l, 1631.— 7X>7VwJ^Jb)Mj:ordO'dU&fw, [4M
nid fire ooiincillon ; end klso are d«dK«(i by
his uiajecty'i letter, directed to tut cooiicil tbe
S 1th or September, to be trae copies of the said
Depoiitions ! wbereof the principal) aw retaiQ-
ed by hia cnajestjr, for the caaaei menlkmed in
tlie said Letter. And therefore oujbl to have
fidl &ith, BB if tbe principnli were prmtaced ;
like Qi the Psnnel by his scti de ealvmnia iritl
itDt t«fiite, but that the EtepresenTnlinn onntain-
ing tbe list of tbe uamei wai gircn'in bj him,
without tbe privity ofthe lord Hea, and nUa tbac
is, Irom David Ramsay, end Mr. Robert Mel-
drum, of whom neither of them did relate atiy
thine; that could prove againgc the marquis;
but limply upnn the speeches and report of
tonie, wlioiD they call his foUowet*, or upon
their imagination, or poitihly foolish and per-
verse nishes, that the nobleman who wm im-
ployed for the levying; of an array for aiding
the king ofSiveden, should employ hia Ibrcet
tire impannelled, nhen s: he might have sufH-
cienily eipresC bis loyal duty to hii master, hy
bnnging thelurd Res to his majesty, to make lus
own irlation, did nt the first appearance beblv
bii majesty turn the unt;trtaiu report and rela-
tion CO B poiilii-e speech ; shewing that the bu-
■ineis Tits a treason ; and the party the mar-
Siis of Hamilton. Next, the Pannel, by hii
epresenCation all written with his own hand,
and deliverei) lomy Lord-Treasurer of England,
to be shewn to his majesty, hs has expressed
the lord marc^uij to be prime agent; and tbe
corU of Haddington, Roxburgh, and Buccleugh
to be plotters; and hath added to the ntimlwr
' of 30 or SO Qoblemen, as adherents to them.
And liisc, when bis majesly had received thi
positn-e iofonnalion, and was possessed with
appearance of the truth thereof; to add a
spark to the fod, tbe Motto nas given, ' Sir,
' now either do or die;' *hilk words could
nrit contain any other intentbn or event (if
bis m^esiy bad not been graciously and wisely
disposed), but either to have used some vio-
lent course against the marquis's pnson and
We, or to commit him to prison, and to
cause him to Toalie answer as to Treason, ei-
vinculit : whilk is the condition of traytors,
both by the common law and fay the act of
pnriiament, made by king James 3, parbamcnt
19, cap. 49, whereby it is ordained. That per-
sons )lande~ed of Treason, shall be taken and
remain in firmance, while they thole an assize.
And ail their proceedings are directly con-
trary to the act of parlinmeDt, whereupon the
Ditlny is tburided, especially seeing the Pannel,
' "by his Deposition made the 30th of June, Ar-
ciculo. primn, in relatiiit; the lord Rea's first
Ipeeclies declared chat the lord Rea granted
that be had no certain ground for the Treason
ulledged by him; and it is an heinous and
odious fiict, pnnislmble by all laws, Co turn rela-
tion into delation, and to he an author or ad-
viser to a iovereign prince, to begin at execu-
tion before trial. And all the particular points
of tbe Diltaj are dear, and evident by die De-
position of the iu^annelled, made upon the
SOthand 211 h days of Jane; wbilk are the true
copies of tbe oHgmal and authentic Deposi-
tions, made in ibe presence of fire ofhii ma-
jesty's couQcil in England ; like as the copies
produced and read in the presence of the Pan-
■el, and bli pralocnton, arc lubactibed by the
day that the mat^nis
came from Scotland to England, and was k>
present himselfto his majesty, vii.' The purpose
■ is known, the lime not known ; Sir, eitbM-
■ do or die ;' in respect whereof the alkd-
gente ought to be repelled.
It is duplyed for Che Fanoel by bis Prolv-
cntors, as to the particulars ooataaed in mj
Lord AdrocBie's Answer, they cease to answer
him no# in the general, seeing tbey are upon
tbe relevancy of the Dittay and [adictnient,
and ^11 answer every one, lingvfatiai as tbej
lie in the Indictment, no hc»:
Terth, Itis alkdeed for ibe Pannel, that tbe
paiticulai's contained in the Indidment are not
Leasings, * quoad rerereotem neque id geoot
' referens mentitur, quoniam quantum in ipM
' est noil Faljit, sed tallitar, ec quicqnid falsitads
' vel mendncii in relalis ioesi, id ad snos as-
' chores reterendum, cap. Is aatem !< qtiest.
' S. et cap. S5. Beatns Paolus ibidem, ubi di-
' citur, non mentiri eum qui animitm faHettdi
' non hahet quod est essentialeet formate meiH-
' dacii, imposlnra scilicet et inteniio Ulen^'
And die telling and icvealine of the whilki
matters aforesaid, ' nullum habet in se delio-
' lum, sed est de natura boni;' being com-
manded, and therefore in the bearer and relater,
' presumitur omnia dolus abesse, quia parere
' necesse babet.' And specially in such a bn-
sinest as this.wbilksohidily concerns the king's
luajesiy and estate. Whereof there was m
great appearance, hy the relation made by the
lord Rea, whilk the pannel craves may be read
It is an'ivered by my Lard AdsetaU, that if
the defence means of tbe Treason related by
tlie lord Ilea, the pannel <;annot he quarrelled
for it, nor Ibr telling thereof, albeit it were a
lye. But the Leasings and Calumnies assumed
upon ill the Dittay, arises upon the contra-
diction, betwixt that which was related by the
lord Rea, and that whilk was spoken and
aiErmed posttire to his majesty. And where
it is alledged, that ' mendacium est semper cum
' animo fallendi,' ihatis, ' in discrepiinlia inter
' intellcctum et vocem ejusdem pcrstms';* ,
where he thinks one thing, and speaks another,
whilk is not our case. Bnt ' ineudactum vcl
' Ailsilas,' whereupon we dispute, is the dis-
crepance and tlie conCrariEty betwixt the re-
lation made-br the lord Sea, and that nhich
is related by Hie pannel: wlierein tbe paand
«■* obliged, as ■ futfaM labject, U mnk* a
4ii] STATE imAIS, 7 Charlbs L 1931.
kimplc or Rne r«lanon, ' tiiie paraphraai, vet
* dMioM, M ut iu Apographs vel exempiari
* comnittitar falsiua, si tninKriptio differt ab
' eiemplari, ita committitor falsiuu ubi relalio
< piMi tire refer tur;' wMlk u tba leaimgi, where-
upon the DiUnj' subHimts. And ivhere itii
desired tkat Ibe lard Rea's rd&lion nay be
producfd tuid read (o tbe Judg^, if it be meant
of that rdatioii whilt ii lubtoibett by ibe lyve
councillors of Ei^land ; and if ihe panncl will
(ukiumledi^ it, lo nmke faith as tb« principal,
togFther with tbe remmwut depiisitiot)»»f tbc
panod, and Ibe lord Bea, wLiIL arE all lub-
■aibed bj the gaid fivt cniutcillor?, and altead;
pniduccd and read (o ibe judge ; tbe pnniiel
•hull receiro fatiifactioD of bis desirci, otbcr-
ii b dopljied for the Panacl, thnt rhe fbre-
wid aUedgeance Is 10 answer ihat part of tbe
Di]tay, bearing the beads diereof to be forged
■nd vatued by ihc panoel.
Qtarlo, it is alledged by tbe Pannel, that ns
to ibe submmption of the Oittay, bearing, that
■U tbe articles and passages of proceediDi
tfaoein mentioned, were malicioasty invented
mhI practised by tlie piinnel, whiU is qoalifyed
by tbe Panacl's ohh DepositioD and ailedged
Confeisioa a^jainst himself, and by tlie Pannel'i
Dsposition freeing tbe Lwd Rea, ntid iLe lord
Rea's Deposition freeing binuclf thereof ; the
qualificDtion inforccs not tlie pannel in tbe
Einiculars to be a leatiiv-maker, and to bait
rged lyes.— Fim, For the Pannel's own De-
poMtion, it inforces ihejust contrary, to wit,
chat the lord Rea was ihe Pajind'a informer in
all. As for tbe lord Rea's Deposition against
the ponnel, proported in the DIttay; thnt lii-
foree* not forging of l^es ngainst the pannej,
nuiber can tix lord Ren's depoution have any
fiMcc against bim; first, becauM the lord Rea
ii party, and tbe pannel is a witness against
him m the king, and whose deposition cannot
ba reapeeted a(|ainit ibe testimony, made
against himself, tor the king's majniy : and in
effect is but a denial, whilk can neither tibcmte
himnclf, nor weaken the paonel's depesliion.
* Fit atnaibas in re propria dicendl testlmonii
' &culCaCem jura submovErunt, lege 10. Cod.
< de tettibui.^ Hem, Tie lord Ran's depoiitiun
made by bim, not bfing sworn, and ta is mril
of tbe law; * Qnia testis injuraini examlnatm
' son pnhat nea fidem facia^ l^e jiirivju-
* randi;' nonaCod. de testibnset 1^ tcstlmn
xriii. Cod. eodent.
Item, The lord Rea's Deposition niit made
in the pretence of tbe pannel, and so ' nna
* valeat aulhentica, sed etsi," Cod. de testibos.
IltM, Althon^ the lord Rea were not party,
be itbot ' tratu suiinlarii et nihil probat.' Zten,
The lord Kea's Depo^tione produced cannot
be respected, becausctfaey aienotibeprinclpal
labscnbcd by nl« lord Rea, bat relations, and
doubtless trom the council. ' Et in Ofimiaal>-
* buaBlionunjadicumrtlatlmibus credere non
' opottet,' Lege ungnl. xit. Cod. di acCBsa*
tionibni et iDscripiaoaibw,
.—^ CaUmtuti and standaciu Speeciet. [446
It is declared by tbe lord Ucliiltrie himscir,
now upon P*nnel, that the Depositioos nbilk
be made in Eni-laad, and snb»cribed nilb hia
band, are true in themselves, as he ihete de-,
poned, according to the relations and grounds
of Information, nhicli he receiced from the
lord Ken. The reconciliations which ace in-
grossed in tbe several DepositioDi, being al-
lowed and admitted fur rtconcillng ofaiiy ap<
parent contcariety, wlibnui prejiHliGe of nlinl
eipbination of the same depositious he ma<f
justly make fartlier; lie declares, tiiat ' ibe
alledged copies of the Pnnnel's own depositions,
ooder the hand of tbe fnt councillsis, so far ai
bis memory can aeiie bim, are not different In
the suliKance of tbeoi, from ibe original. But
that there m no more in his Repositions, noK
that whilk the aubscribed copies coataia, ibal
he cannot say. And this hia lordship does ac-
cording to hii memory, and in reverence of ,h'a
majtstr's Utter, and noblemen's handi thereat.
My Lord Advocate takes initcuinenCs of tlie
impannetled't declarnlion in that part, whereby
be grant) (hat tbe copies oi hii depo^tiona
made by him, tiBder the hand of the five cnno-
cillors, is not different in gubstaoca, according
to the Paniiel's mamor*.
I'bereofter, my lord Uchiltrie and his Prolo-
cutors cfaved that ibc lord Rea's Relation
nude span the 18th of May, whilk under the
hand of the fire councillors, miglit be rend to
ium, because he minds to found exceptions
thereapon. — To the whilk, it is answered by
his majesty's Advocate, that he cannot be con>-
pcllcd to produce the said Relation, in respect
no part of the qaaiiScatioii of the Dittay ia
fiiunded thereupon. Add yet according to hi*
tbrmer ansver,«aya, ifthePaaBel will acknow-
\tdf,e tlic aame, as it is under the hands of ills'
five councillors, to make as great faith as tfau
principal, he is content, that the said Relation
ba read ; of the wbUk Reiation the tenor ful-
lOKS.
The true Relation of lucb pessaaes, as I Do-
BALo liaid Rea have beard or learned,
which inay concern my most dceud sote-
reign, or his estate, beyond kqs and else-
where, as I will be ready to take my oath
upon, and seal nitli my blood against all
oppunents. VVritleo this IBtli of May,
1631.
In the laoMb of April, leSO, or thereby, at
my coining from Stockholm, I found i:ol. Atex.
Hamilton, brother to tbe earl of Haddington,
si. JiiiDrt Hamilton, ton to the *aid euri, sir
James Hamilton of Reldhall, nephew to th*'
said cart, and one Hamilton tbe lord of ;
who were all oAicers under the king of Sweden
than. But before my coming there, they had
all cashiered themselves, not hanag serred on*
year.
At this tine tbe laird of Bensho, Lyndesaj,
my lieut. culoael, bdng bed-fellow and comrade.'
to air James Hanilton son to tbe earl of
Haddington, keepbig a chamber in Jame*
UacUaiu'i a Sc»U«u'i faoase in Stockbolm,
447] STATE TRIALS, 7 Charles L l6il.—7Tte 7)itd,^ Junta Lord U<^iltTie, [448
e told me, that the niarquii Imd *eac ]tuii i* ith
cballeiige to the Treasurer, and that Popery
id ^rniitiiantsm bad ever coiae the nuM. pare
from tl)e Biihojii; and that [here nm nuthiiig
Jookeijfor butdesoluilon andcliange of religion,
that tlie poor soul (lie Ling was blinded to
'uin ; HD(f ihAt fae had betn plain with the
;, tilt he did gne him no ear ; tberc&re ha
, he had retired himself from thence, since
lotiest man could tite lliere, and with mnn^
such diicouries he luhoured to pns<G«» ina. My
*aa, The Lrird amend thoGC evils, and
Ljadeaiy did iaform me, ibat the reason why
the Hamiltons had cashiered themselTei, ires
bacauic llieir chief, the marquis of HaaiilCon,
Wag to be a g'lldicr, and ihey would follow his
fortuaei. L asLed Lyndeiny who had tuld him
*o much ; he told me sir James tlBmillun of
Priestfield, Haddington's sun ; and Ljndesaj
told me oithnl, iliuc ail the^e Hamiltons, and
air John Haojiltoo, another son of Hadiling-
lon's, had denuded themselves of their tbrtuiiES
and estaies, aome of them to their friends, but
tlieesjlof tlnddingtaii's children to tiieir father.
Moreover, Lyndesay told me, (hat sir James
Ilamikoii, HaddiiigCun's stcood son, had told
hint tliat sir James Spence, now lord Spence,
had directed Mr. Hobert Meldrum with letters
into England ; and that thereafter they did
expect David Ramsny with the bend cousin lo
the lurd Spence, as ambassador From the mar-
quis of Hamilton ; and all the Hamiltons did
etpect David lUmsay's coming. — Also Lynde-
say did inform me, that sir jitmrs Hniiiiltoii
did desire him tojoin nith them, and tliat they
would give him s regiment ; which he did
accept, and did desire- my cousent, which I
did yield unto.
Also ten or twelve days after we did hear
from Denmark, that there was an niiibassador
coming from England, who proves to be David
RanuHiy ; who did give himself out, all the wny
as he came, to be an ainbnssitdor : wliich to
prove, he did stand in comjietition with liis- ma-
jesty, nur dread sgvereign's extraordinary am-
liasudnt sir Thomas Boe ; bolb the said sir
Thomas and David Ramsay encountering in
the town of- - - - - in Detmiatl ! yet David
Ramsay would never do so much as visit the
other ambassHdor. Upon which oversight I
did ijuestion David Riuns-iy, whose answer was,
fae did not deure tn be seen of any man that
would discover him ; atfirming to his cousin sir
Robert Ansiruiher (as David Ramsay told me)
that no honest man could live at home. David
Uamsay, col. Alex. Hamiltun, and sir James
Hamilton, .attending their dispatch Jrom the
king of Sweden at Etsmeby, were forced to re-
side with me in my ship, for at this time
were all on ship-board.
And one eight drinking some healths, amongst
the rest, the marquis's health coming by course
I Rsked col. Alei. Hamilton, the marquis'
christian nnme ; he answered me, ' Jamet, by
' the grace nf God ;' sir James added, ' King of
* Scotland :' iherelhre his health passed under
that name, till I did take exceptions, and did
desire theni to alter their title; sir Jim
Uaniilton answered noUm, volent, it should
■o, and did laogh. I did desire them to drink
it more covertly, thus, ' To the happy event of
' all Good Intentions ;' so David Riuiisay said
it should be io. .
That night, after the two colonels Hamiilons
went to bed, David Ramsay and I being alone
OD the hatches above, David Ranuay and I
drinking and smonking a pipe of tobacco, tnid
me many abuses in the court of England ; lay-
ing the whole bUme upiNi the Lorf Tmauier.
help Gu'd to ameiiJ it. He told me, ho hod
brou|(ht as much gold with him, as would
maintain him at the rate of six pound a-day for
three years, and did assure nie tlint before that
time would eiiiiie, that God would mise up
sqnie men to (ji-fend his Church, and liberate
honest men from slavery. Withal fae told me,
that his mnjestj nt his patting with hiai, told
him, rhat he would do with him as king Henry
4. said to CoItD, I »ill thiok on thee in absence
Therenfter I- did desire one bvour of him,
that he nould lell me if the mniquis ofHnmiU
ton would come over ; he said, he would lell
me to-morrow. Ttie next night after, I did
renew tny former question of the marquis's
coming over, imd he said he would. 1 asked
him what content my lord marquis had at home?
He said none; Ibr the king had forced him to
marry a wife, and to acknowledge her, who he
said was a very beast, I asked him of what
religion my lord marquis wasP He tinid, a good
ETOtestant, anil before it were long, he would
:( the world see his aim was the defence of bit
religion. 1 told him, it did avail ut little to
make ihe Gospel a fair passage in Germany, if
we lost it at home. He said, there were man^
lionest men iu our land, and that tke marquit
would use his army to protect ihem, which was
hin onlv aim. I desired hiiu to go no further
on with roe; for I would not desire more irust
uf it, but that I would ipenil my bloud in mv
lord marquis's qnarrel. Well, my lurd, I wilt
go no further, for my master's secret no man
shall get.
The third ni(;hr, on land in an isle, be told
me, thnt Alex. Hamilton and nir James were W
gn fur England, and he to Holland ; yet if I
had any thing to do in England, that he would
be wilUng to do me service. I told him I hid
a mind to Seek the reversion of Orkney fraa
the king my master, if the maiquii wouM me-
diate with iny master ; for it were good for my
lord to have a friend in that pUce tor his ends.
He said. By God it was to be thought upoDi
and he did desire me to pve him leave to ibiak
upon it thatni^ht. On the morrow, he and
Alexander Hamilton did desire me to write a
!;eneral letter to the matquis, »iih the two c«-
onel Hamiltons, with great auurances of tme
friendship from their master, if I would cod-
linoe constant in rcMlulion ; I did give th*i>
in; tetter, and m we .parted.
Google
449] STATE TRIAI^ 7 CbablbiI. lO^l.—for Culunmiet and slandefom S^.c/ia. [iM
. In ibe ooonlh of Jalf, a dty or iwo after Hie
tidiiug ut'StetiiT, I did «ncouuierMr. Meldruiu
tclio coine fnim Eii<;lnniJ: afler salutations, I
did a^k liiia whnt aev3> He ans»ered mr,
mntCL-rs are woise mid worse ; tlie king givetli
[greater *ia<f lo PHplstsand Arniiiiiam tliaii be-
lure ; {li:it Cotlingliniii wa> guiie ti> fafr^ pence
with Spain; that Pembroke was Head; lliLit
the marquis gDvemed all, aud nns made Keeper
of Windsor, and was miuie knight of die gaxer,
and wa» to lie Adiuiml of Bngliiiid. tie did
usk me where his cousin David Kuimay wu:
I told hiiD he was gone for Holland ; he did ask
ine, »bat tie hjd dooe : 1 did answer, ihiit all
van ended to bis mind, and ih'.it AtcK. IIiuDiil-
tou was to get powder, arnis, and munition
with him troin Sweden, to the luatquis. At
these news, he did throw bis cap to ibe ground,
and cnc a caper, catling aloud. Good news!
f>ood oews ! I am a happy man ! 1 am liapp^v
>nd made for ever ! 1 tliank G'ld my live yea-
punt is not tiir nothing ; good my lord Rea,
this tfuti Yes, said I, for 1 have ooe double of
the contract, I am engaged in ibe bn$iuei» to
David Rnni^y, and Alex. HoBiilton and sir
James Iliiniilton, and by writ to my lord Hn-
tnilton. U my lord, (saith be) ibnt was the
work of God and not man, to inspire your lord-
*b:p lo go with us I
At that lime I cost Lyndesay loose, to find
more of Meldrum ; who told Lyodesay tbit
6,000 trained soldiers would do tlie turn wiib
tlieir own faction in ibe country.
The next day at cul, Leslie's tent, I encoun-
tered Meldrum, whom I did call out, nnrl be
lotd me tbat kittg Charies wag good and created
for iiotliing, but for desoUtiuns and undoing of
kingdoms, religion, and people. There was no
way but to immuraie him within a wall or dun>-
geoD for ever. I asked wlkat way we niigtit do
that } He said the way was eusy i fiist, after
Uie men were listed in Scotland, that they uiight
take one month's time to learn lo handle their
>niu at Lciih, witliout any suspicion : then
tbey might seiie on the cabtles of Edinburgh,
Sterliog, Olid Dumbarton in one night, and
upon Berwick ; and haviii' the castle of Edin-
burgh, [be town dant one stir ; then to rortify
Leiih ; therenfler iuto England per force, i
miMwered, the plot was gooil if it Held.
He told me further, tliat he was writing a De-
cliraiion of the justness of the marquis's qunr-
-lel, with tJte tyrannical usii^ and suOering of
the Church under king James in liis last du^,
And DOW w.orae groaning under bis son ; with
the iiamiltons clear title lo Ihe crowu. 1 al-
Jowed-of all. But I did demand who I thought
>rould take our parts ;'hf snid, he did know
jiine of tlie best enrls in Scotland tliat would
live and die wiifa us, • As also tjint the body of
EiicJoDd wni with us, and some of the nobility
for evil will of the Treasurer. The ne^Lt day
there came neov of the birth of t)ic prince; I
did ask Meldrum if that would cool the' mar-
r* "s intcrntious : be sighed and said, not if
king and que«n of ^bemia will give tticir
daughter lo ibe marquitj as they hod promiaed.
ViiU III.
Is Ibat true, inid 1 1 He ansucred, I ibr.uld see
ere it were long. Thai uiEht I did desire J jn-
desny, to drink witli Meldrum, Hhicb lie did,
and Harry Alusckmipe an Iiii{;lisb gelitleinuu
wits with them. Lymle-ay told me on tlie
morrow, be did ihiiik Meiibum to hv the wnr-t
secretary in the wurld, for be did ievchI tbis
la-it niiihi oU lie dicl think. 1 lUt iioi reiuwiibcr
the iiitiii's discourse; but do niiiit to Mus-
A week after, I did speak with Melitrum
again in Leslie's lent; so he did desire me to
walk forth, and tnld uie lie bnd been »ith se-
cretary Sadeler, to wiiiim Mtliiriini did deliver
a private packet of letters, and did require hiI'
a->er. Bill the Sfcrciary luld him, tlmt the
king lif Sweden would write none, till lie heard
from the maiquis of his lust lelter«, sent wiih
David Uainsay. Meldrum weni fnnber wtrh
theSecretury of Sweden, telling liiiii. ihal it
w;is greatly lor llie advantage uf the king of
Sweden, wliose nnbition was uittiimt limits,
that the marquis did ruise war in Briiiiin i for
if the king ofSneden had a mind to take Den-
mark, the king of Britain sliould not be ulile
to lielp bis eiicle. Tlie secrelnry of Swedeu
did answer, that «e caie not lor, neiiher do we
feur your king : fur he that would not lielp hii
own sisier, will never lielp bii uncle. — I did aslj
MeldruDi nliat tbey did intend to do wiih the
prince and queen of Britain? He answered,
the cliild sliould be cabt in wiih his fntlier, and
the queen tent lioine to her mother to be i>ut
in a monnsUi'y, I did a^k him, n-bui charge
he would have in those employments ? He said,
he sboulil lie Secret.iry of St.iie, and have a
horse- troop. —Meldrum did shew me ah", that -
all who would not take our part, of Scotsmen
in Scotland should he put in the Bass, or soma
oilier prison, till all were ours; and 'that the
marquis would lake pledges of all nho in
Scotland did lie by as neutrali at tlie first.
At my coming to Holland in March hst,
David R'.imiay did leave word at Amsterdam,
when I did come, to send him word; which I
did : he came from (he Hague lo Amsterdam,
and stayed with me eiaht days, where he did
deliver me a letter from ihe marquis only of
compliment and thanks. lie told me all went
right with ihe marquis ; that be bad goiien
from bis mnjetty 10,000'. in £iii;lnnd, and the
Wine-Custnms of Scotland for 16 years ;
whicji the marquis would sell, and that a!l
ttiings went on wiihout any obstacle ; and that
the only stiiy was for want of arms and niuai-
ijon, and especially powder; nod desired me
10 put on bard for ihis, Miih Ihe Swedish urn-
batsador, wliich t did. Thereafter he told me,
he hod evil news to lell me, ih;il tlie mnrquii'i
wife was brought to bed oi a child.
I did ask him, wliere our forces should meet ;
he said upon the sea, and ibereafier land in
Sci>tland or England, he would tt U me no
morei but that Ibrmy businessof Oi'tiiey, I
niiiiht have it belter cheap than to pny the du-
lirsofit; and he tnld me, that wlieo I should
meet wiih the marquis, he would infute in me
i5l] STATE TRIALS, 7 Chables I. 163-1 7^ TVtal *f Jmwt Lord VeUJtrU. [4M
thut which he cfunt uoi ; since he wnuld hare
the marquU to take the cJianka to himself.
And Hithnl he did dnire mc, thai I »huuld not
teil the luiirqiiis nliat hnd past betneeu him
1 dirt Bsk him, whiit pnrt of England we
ihoulil best land ut } He said at Yarmuuth or
liaj-uich, or titerrb;. Ite t'>ld me tlmt Eng-
tiiid imd made u peace with iSpiiih lery preju-
dicinl 1(1 llollnnil ; and i!i»t the ttensuier, and
kuch of ihe Spktiish fiictiim, tu CiiTliile, nod
Cuttiogtiiii, niid Kenelm D'gbv, 'hnd mufUed
(he king to bar the Ildllnnder from the tiaMng;
whicli lie s.iid miglit fall t,at Imppily for them,
and he did desire me lo a-sist ihpra ut the prince
of Grange's hand, as a special service lo the
iuiirqiiis,io make (he ^tiites ci'iiirihute witli the
marquis : and t did speut to tlie prince of
Umii^c, and his eicelleuc; told me, that he
would do his l>esC therein.
Ite tohl lue, that S|>Biii and France were
■triving nho aiiuuld 6m driuk up England in
their amhittun ; but hv h<>ped the marquis
should prevent them both, lie did ask mjr
advice, whctther it were best ti> cross tlie seas
once, or to gu on biaielj i 1 intvicrcd, delnjs
were not fpoii, wjiicli he did suhscribe to ;- and
M ne concluded, and ! enmc li>r En^aud.
■ At my coming lo England, my lord Hamil-
Ton did ffie me munj thanks, assuring mc, that
. he wonljniit wantuie; and iluiti should have
what conditions I nuuld desire, fur he said,
that sliould not separate us. I did desire his
lordship to go on with roe rcollv, if he meant to
hriie mj lerricF, be should naie it without
conditions; lie did auswer. My lord, I will not
want jrun, for I have Hntten to tlie king o(
Sweden, with Elphin^st.m and Meldmm, tliai
I "ill detain ;oa with me, nod assu'e jour
lord-vbip, tliat he that will hazard with
iu this liusiiies!<, it sliall be n tie to me
Cosleritv, to hazard mv fortune liud est
ira aii<i hit. The same word the next day he
sent to lue, with sir James Hamilton, the cur'
orHn'Idi'igtan'ssoQ.
Thi- said sir James Ilnmiltoti and T being tn-
gecher, I did much commend a suit of appat[.-l
which sir James had; bis answer wn*, lliave
them on, paj tliem who will, 1 have tnken them
np, it may be a merchant of London will pay
for tliem, ere it be long; my lord, take oi
•is-t on luck's liead.
'lliefirst day, my lord marquis went down
Oreenwich in a bai^e, accompanied with •
James tlainsay.slr James Hamilton, sir Roberi
Ballendeti, Capt. Douglas, and, I do think, Lu-
dowick ]..eslie, the king our master having
gone bef ire ; tlie discourse was moved, if they
were to make aii insurrect'oii, where wnuld
Ary b^in i The marquis answered, he would
marcl) lo I/tlldoii directly ; and one of them, 1
tliiiik Capt. Du'ughis. said, that he knew a
bouse in X^ndon khouid make them up for
tliat they would Imve from the king 100 barret*
' >wder, and that they nnutd make shift fi«
Sir James Ramsay bild me, on Sunday
It Grefnwii:b, that he hud l.BOO ineo ia
readiness uu a week or less ndi'crlisemeut ; and
that his stay only was here, till he heard the
n Scutiaiid were ready, and thnt hn rta-
us '^auld tie Ht Nornich, and meet the
Sir James llnmilion lold me, that the
Engheh rendezvous sUuuld ship at Harwich, for
he said, the dei-il have hit part of (he riTer of
Thames, he did not like it,
~' e earl of Ko;ihurgh told me, that lie and
others ihe marquis's friends, were at fint
■ isl the marquis's courses ; but now since
■aw hii I'irdship so far entiaged, and that
ily aimeil at the glory of God, that be anil
all others his friends would put to their belpini
hand.
On Thursdny iasi, tl>e earl of Itoibnrgh lidd
me, tint the marquis would hnsten his reMln-
li'in, and said, thnt he would qssure me, ny
lord marquis thinks himself for ever bonnd ID
me, and so do all his friends, fur lii* lorddiip'i
CRUtei and I will assure yonr lordship he trusts
you, end that you never took a mure fast and
real friend by the hand.
My lord lUwhorgh, s!r James Ramsay, and
captain Douglas questioned me, what was
Ihe reason, (bat I had taken oa sir Pierce
Cnnbv, since the marquis had cast him oSl
Tliis cay severally, I told them, I was forced,
in honour anri conscience, to keep my ptvnuM
to ibe king of Sweden ; so that I did take on
sir Pierce Crosby, to send liim thither with
Irish and English, and that myself was minded
with all the Scots that 1 could get, to fbllnw
the marquiii's fiirtunes ; the which answer
severally giren, gave ihem all content.
In witness of the truth of these, I have signed
it with my hand, day and jrenr aforesaid.
Sic tubiciibitur, D. Rei.
Aflerreariingof ihe wbilk relntionjudidiiJIy,
the said lord Uchittrie declared, that so far as
his memory sen'es him, there is no dilTeretice
bttwixlthe foresaid copy of relaiion, suhscrih-
ed by the Ave connsellors, and ibe prineiptl, or
original, set down ind subscribed by the said
Donald turd Ren : apon the making of tb(
whilk declarntiun, hu majesty's Advocate asked
Instruments.
Thereafter his majesty's Advocate answering
to (he former nlledfieances proponed by tht
pnnnel, and to the Arsl part thereof, heoppen-
9 proponed b
t thereof, heo, ,
mn Depositions, made upon
,..h of June, subscribed ty tha
five cnuncillors ; and whilk are granted by tbe
pannel to be true cupies, l-igether wiih tJie re-
presrntalion subscritied and written with tht
Ennuel's own hand, whilk verifies the Srst and
isl points of the pnrticolara eonctmiiig the
pannel'a positive aRlrmatian of the treason.
And that the marquis was prime agent thereof,
trigether with tlie speeches spoken » his fii»-
jesly, upon tbe Sunday after dinner ; alld a> to
tbe third particulur poiM of Un JliiUiy, aMM
*SS] STATE TEIALS. 7 CUABLES I. IdSL—JbrCabamiaatdilaiuleroiu^iixchn. [4M
tha Mrt* of Uaddii^iUD, Roxburgh, aod Buc-
cleuch, wlio arc culled Plotters ; ihut is icrifi«d
by uie relations made by ;he lord Hen th« IStti
ol'JUav, ackiioiiledfted hIio bjp tlie piuind, mid
by the lord lues's De|ia!iiiioiii, wliilks are ii>ed
conjuaciiy, fur vecifjnu)' tlie lecuiid parlicuUr
poiiu of tim Ju Jtinieut, auent the three iiiible-
■nen who are colled Plotceri, tlie oue thereof,
v'a. the relation to prove the negative ptrt of
llie Diitay, and. that the puiiael hud iii> wac-
nuit from [be lord Rea : aiid for verifying the
affirmative, that the lord Hea riisrlnimetT the
sane utes, tbe said lord Reu'a Depouciuns.
And where it ia nlledged, tliat the Dittny, u far
«• it is foanded upon the lord Ren's Deposi-
tion, is not rdetant agninst the piunel, because
he is the paunel's patt^, and because lie vfu*
not sworn, and not in prejente of parties,
* quod est teaaii singuUrts, and not subscribed
by him ; it is answered, first. That tbe nei(aiive
point per le is sathcient lo infer tlie rdevancj
of theDictny in ihis point; that he gave them
up as Plottfn, iTitliout n[iy warrant of the r«-
iqUOQ fr.ita the lord Rea, wliilk is clear, by
«onterring the IJsl of Represchlation, given in
bj the paniiel (wherein tliey ore called Plot-
im), with the said lord lien's relation. Where-
by n is evidenl ihitt ibe ItcprcseiiTntion, gireo
in »pon the IGth of Mair, could have no war-
isDt of the rrlotion, whilk in the pannel's De-
patiliont i* afiiniied to hate heeuu upon the
ISthof May, and cioted the leth of Maf, and
. delivered to tbe Lord-Trensurer to be given in
ta bis mnjesty. Within the whilk relation
ihere ia not a ward of the laid three enrls i
neither can the pannel pretend ignorance here-
of, in respect ba in his own Deposition grants
bihI coafeMeth, that tlie Loid-TreMurer, to
vhorn ihey were remitted by big majesty, de*
Aired 10 ^ve in (he relition in writing, conform
to the .whilk the pannel and the lord Uea went
eogetber and cunsinqed the whole night in
drawing tlie said relation ; whilk night was ibe
BJgbt or evening of tbe said ]7ih of May,
whcrcnpon first tiiey appeared before his ina-
jtkty. Aad the panuel liavilig given in the re-
presentaiion of the primf agent and the plot-
^ter• upon tbe I6ih day prtceihne, he cuuld not
have oniitied nu-h a suhatuntial point of the re-
jAtion, which to nearly loucht-d tbe marquis
. sod the tlireenobleincnnfi>re»iiid,and the^ian-
nel's own exonerutioii. Like as the pannel
bimtelf with his own hand wrute ap and drew
Afftha said lord Rea's Papers the said reluriuii
■of ibe IBlb of Uay : so that the pannel can
never affinu, that Jie had any wamuii from the
-•aid lelatioo for braading tbe marquis as prime
• agent. Bad the said three noblemen ai plotters.
And as to the Arguments made aeaitut the
•Jard Rea'a Oepoaitian ; First, the came is tiut
lued per tr, but joindy with tbe other, * Et
'Juncta plena fuciunt Adem.' Next tbe lord
H«B iatiQt tlie pannel his party,' lied etrl iiutbiir
'. etinandalor quern tenebatur edert,' ottiera eya
be would liBve betn himself culpa hie of treiisou,
or, a delator of treason against the said nuble-
«wiif ' pceaa tiUisiui vel uutof aiheioa ' by act
of parliament, made by kiag James 6, par. 11,
Clip. 43. Next, ' Nulla necessitas jurisjurandi
' quia noD teslit aed author a reo uuncupatus.'
And Ox lingahrity cannot lie objected, because
he used him ' taiiqiiain singularem el s<ilani,' to
warrant his declaration ; and fi>r presriii lie
ciiiild not be,if tlte loni Rea had been eiamincd
' tajiquaiu testis,' as ihe pannel alledgts ; and
ai to theantheDiickness n( the copy of iha re-
lation, It is approvvD by the pannel, and be
cannot be lieenl to object agninst tbe autlien-
tickness thereof, nor ot' the utber copies; be-
I cause they are suhicribeil by llie saiil tite coun-
sellors, and have the warrant of bis mijtsty's
missive letter directed tb the council : wbicit
the pannel for reverence of his mnjestv'* leller,
and of tbe counsullorn lubscriben ol ibe said
copies, has acknowledged as tiue. And tberc-
fure cannot be liearil to object against the >£•
innneiit, whilk has the like snleiniiily of bis nia-
{' esiy's letter, and consequently tbe fourth al-
cdceance ought lo be repelled.
Qiiinlo, It is alledged for ibe pannel by hit
Eroloculors, That as to the piirtifuUrs of his
littny, the pannel put^i every one of ihem i>
manner fulluwiug ; viz. The &rat particular
point is nut rolevunt, because that tbe pannel
at his tir^t meeting with bis majesty upon tha
17ih of May did sjenil'y to his nmjesty, that tha
business was a Treason against bia majesty,
and tli:it the party wag the man^uis of Hamilton,
as he was informed. This Article entbrce* not
against the pannel, that he is a leasing maker
aiifl forger, b^t clairly free* him ih«re<ir, l>eur-
in;; ' as he was in formed.' Whilk Article bfing
the sum and tubttance of the nhole Dittay
having the aforesaid duusule (as, hi was iiilbrm-
ed) annexed ilieret^, inforcea of nrcebsiiy tbe
same clau!>ule to all ilie paiticulart of ibe Dit-
tay comprehended under the said general, ■ quia
' semper apecialia generalibus iusunt.' And
that the {Hmnel spake it by infomuiion, it it
chriir by the pannel's Depositions upon ibe 90tli
and 34th days of June, and by Ibe lord Rea'a
Deposition the Slit of June, acknowledging the
pqunel's K\aD)inaliou tii be true in all poioia,
in so far at f\ie same concerns the knonlcdge,
viord* and Mcis or tl.« lord Ilea, and bj the re-
lations uiaile by ilie bird Rea and subacrihed by
him, and otlier rrlations made by the said lord
Ilea to the paauelhy word.os thepabnel'suwn
dep»siliiin bears. Neither was it ever beuid or ^
Eraciised, that any subject beii^ oeceMitated
y ibe law to reveut what may concern the kiiin'i
mnjeiiy or tlie slate, and revealing ibe same
niii>liisinli?nnertherein,andconsi.iiitly abiding
thereat, and willing tii maintain the suine upon
any to Lt lire Or trial whatsoever; thai the re-
vealer, upon tlie party's denial, should b>' called
in qiiestiein uf bis life, as < lie deviser and lurgi-r,
or the same to work any whjs agninst the r^
venlcr ; and which if it ^oiijd now laki: place,
and hrjiin to be a preparHtive agaiutt tbe pan-
nel; it were to give way Biidoccasion l[iull trea-
sonable exploit.*, and that strurely, hecaute
none would or durst reveal the smue.
Next, ai fbitlwIJNaf Nboici «f tbe prioci-
,, Google
455] STATE TRIAIS, 7CbarleiI. l^H.—lieTyialtifJiuiia Lord Uchiltrie, [456
pal a^eai dntt pluitera repmcnied to ihe Lord
TreaiurerilipiethofMaVjidBrnieiUohcrorKd
nnd invented b;r ihe pnnnci hiniM-lf wilh'iut nnj
wiirraiK I'rom niv lord Krk, coiininu ti) (lie pun-
nel's dppo^iiuiii upon ihe 20th nnd S4th d:iy3
of June l.ist, none nl' ihe iinnncl's d.'poMliitii^
fores lid, to ll:c nhllk tiie Ditla? reniils, Liuar
any ? ucli cimtes^iun or forging hy the |i:iiinel ;
bill brui-s eijireisij the ■lord Uta'h rckaiihi lu
liiiu ill ho;h the gjunncl'a depoiitions, which is
ft is'Biked l>y the p;iniip!. That whereas it is
alledced hv u>y I^>rd Advociite, chut the jiiimiel
ciiuiii never nscrihe nuy true cause or kiiow-
Icdtto in tlie Lilt or H' preirntnlion whrre ihe
liird marqtiis is naiiieil priiiie B|;int, u'ld tlic
snid enrla uf Huddiii|tOTi, Kuxburgli, and Buc- j
cleu|[l., pl..ttir?; Ltcause the Liird AiUocaie
nrtiriiiH, ihii< the relmiuii was gi*en in upun the
18'hdnj, Hnd the Li M presented to tlie Treasu-
rer the Itiih dB_y; imd bo the i^aiioel coiild hnve
no jiist rCBion why these otitniiicd in the List,
were I101 coQtnined in the Rrlntion, oliich w»g
po«i(>ri<ir. I he pnnnel HlKrnn, tliat liimwerer
th« LiKt was given in helure, ih'- nasun tliereof
i-< thus: The Liitd Advornie inukiiiK mentinn
ot'hii reliti-in, distinenishes not hetwixt iireln-
li'in by word, anil omxher by writ; buts-)!! is,
that my lord Iten tnnde relitmn t) tlie puiinel
up.in tlie inth of May of the »N(.le things con-
taii;edui thpltelntinnupoii the18th(if Mh,v, as
nppenis evidently hy the paiinpl's 1st nnd'and
depusitJ' ti-, Hnd upon the 14th and ISth dnys
niy lord 11<b r«-ne»ed the discuuioe concerning
my lord Senlbrth, and expluim himi^eir in these
particular* concmiirg tlie estl- of Haddingioii
and ItinhiirBh, aoent their being upon cht se-
cret »ud counsel of ttiemurquisScourseh; That
itnairrpr^Lentedupou the Uthand lo'hdajs,
the lord Kea niid the pnnnel heini- both at
Greenwich, returned uptni Monday oiominc,
being ihe lOih day, to London ; at which lime
tlie pnnnel wi^m onto the I/>rd Treasurer, and
there fed in discourse with Ilie Treasurer on the
the marquis't power
very great; and sn cmie'jrwaH to the pannrl's
own hou'^e, and orote the Kcprustnintion, ami
. delivered tiie same to the L -nlTreainrCT, which
was done upon the 16th day, beins Muniky.
And where my L'>rd Advooiie atl^ilgej, thai
there could be no ground Hir this reprtscntatioo
betbre the giving iti thereof from my lord Rea's
written relation, been use the representation pre-
ceded il in tiiii", nnd the Plotters were nut
named in Hie retxtion, wbilt iherefbrc fullnwcd
upon (he 18.h of May. answers the verbal reht-
tjons concerning the Platters made by ihe IohI
Hea to the pnniiet preceded the scriplurai n-la-
tiim niven in t« the Treasurer; yea and the
■ representation botli, becnu,f done tipon the Itih
anil 15thdny4 0>' Mav, the represent a tin n hcing
upon tiie leth, nniltlie wriitrn relntinn npoo
the IRili, Neither wa- it needful to tlie lord
Ren 111 make that religion in this paper, ivliich
h« hiul mndc to the pannet before by word, like
M ibere are aundry oihtr thloi;8 in llie panneFs
depositions, vkliilk lire nol setdownin tliuinrii-
relation, u<i mention is made of my lord Hea-
Ibrth, or nny thing proceeding trom him; if of
notliini; from hiiu, why then of llie grounds of
ihcpaiintr»re^r<scntatiaD, whilk was had from
my lord i<f Seutiirtb i
I'hc Justice continues all farther disputation
bad rensoning in this maiter.(by rea»>n of the
lalciicss of the nigiii) to ihe ino^n ibeSd ot'lhii
month of December, and ordains the Pmmrlio
be retnrneil to Ward, lo remain ihemin in the
menn lime ; the per«>us also warned a^ad atla
to the mocn, all peisons under tlie pain of a
thousand' marks.
Curia Justicinria S, D. N. iWgis lent' in pr»-
torlo burgi de Ediuhurgh, secundo die menMi
Ileccnibris, onuo Vota. milUsimo, sexcen-
tCTiino, iricesimo priino, per ItouoralHles ec
disci'Etos viros, magistros, AleiaiidrUin Cbi-
ville de Itlair, et Jacotjum Huheitonn, Advo-
catum, .lustioiarios deputatOH nobilis e[ po-
tMiliiconiitisWillielmlcoinilisdeSlradierne,
et Moiileith, doni. Grahnme, Kilbry;dc, et
Kynpont, prtcsidis »eci»li concilii etjiutici-
arli Kenirnlis diet. S. D. N. Itegis, lotuit Bui
regni Scniia:, ubilibet con-ititut. teclisrocatiit
et curia tcgiiinie afllnnnta.
Jamrs Lord Ucbiltri?, delated of the crimes
foresaids, contained in his Uiilaj.
Pursuer. — ^ir Thomas Hope of CraiEball,
knii-lit nnd barooet; hii miyiSty's Advocate
for liis highness's entries.
Prolocutors in IJefeuce.— Mr. Robert Naime,
Mr. Alexaudir Pietaoo, Gilbert Neilson, Ad-
The said James lord Uthilirie by himself re-
peals the former first Alledeeaiice, word bj
word, as it stands, and citis thereto, that he
'can no wa^s be Jn malofi'le : That the gruuads
of Lii Rep^e^ellt■tion preceded not liis written
lepieseniution Aw ergumralii, as it is alledgrd,
lieCausa tlic lord Kea had omitted in his reU-
lian to make ineoiion theieof; whrreiis mj
lord Rea's foots cannot make the paooel gaiitj
simply ; neither can bis omissions lake away
the strength of the pannel's irguments of b^
iuiincency : For it 'was (he pHiioel'* part to
follow' hiiu, and nut tu lead him ; in reveal as-
sertions, and not 10 imtite asaenioDs to bin.
Neither was ihe Pannel under any just cause
of tear that his omission could enduneer him in
I the paint; because he was conscious lo Urn*
' self, tfmi toy lord Rea had told him tbe grounds
of his Etepie.seniaiian of before, viz. tipon the
14lh and 16Ch days of May, by verbal relaiioas
tliereornpon the said days. The panncMike-
wise knew ihni there wa<> b ^ecclDd relation
wrote iif sundry other pntticaUrs tu be inada
by my lord Rra subtequeut ; among the whilk
he knew the grounds of his preening verbal
relations of his representation was to be justi-
fied nnd cleared. So by these reasons tbe hnd
Rea's omUsion of the grounds of tb* panncl's
Bepresenlatian out of hit scriptural rettitlon,
eo tempore, cHO g>ye nojuat ground lo iavalid
or intnnge the truth oC llie pnimel's aiseriion.
That my lord ilen bj verbut n>!ntiun preceding
botli tlie repreMutntioii nnd that written reU-
tion, had t'lld liiin thalthe eaili OfUnddingtan
and Roiburgh were upon tlie council nnd secret
of tbe busine^a intbrmed ngain^t the lord tniir-
qois. The same Inst argument holds Kood hke-
wise for mj lord Bucclcugh ; and as co the re-
preicntation in general, the paniiet declares.
That it was wriiieii and eiren in upon a dis-
connc of tq» lurd treasurer's in([uiry for ihe
frieDiiship ot the marquis in Scotland by binod
or interest ; whereby conjecture ■oi'iht be made
of his powpr suppositive, if his friends l>nd
joined to liim. And this is clear by the very
writ itself, in naming it a representation, aod
not aa information, accusation, nor relation.
The general strAinof ihe writ liken'ise evidences,
that there wns n» intent by that nrit to reflect
in any thing concerning tlte lord marquis or
tliose three ■ iblemen. BecLiuse die represen-
tation containing one side and a linlf of paper,
that wliilk concerns these nuhlemen originilly
'" " ' 0 long lines. Whereby
457] STATO TRIALS, T CaAJuL'ti I. U5l.— for Cahamut and tlandcraa^mcha. [45B
where my Lord Advocate in )ii» Diitay affirms,
that it is manifest by the ponnel's own di-posi-
lion, the truth of the Dittay ; and in the dis-
pute yesterday, produces a parlicular, thai the
paimel tbould have deponed, that the lord Res
said, thut he hud no ceriAioty of iIk business ;
this can no ways fortify the assumption of the
Dittay- Because the pnund'a deposition saya
not that the lu;d Ken had certainty, but wh'^
ther he had '^rtainiy or do, the words whilb
the p:innel alledges wns tc^d lb liim by thelortl
Ren ; for the panQel't deposition depends not
upon a Kientia ceHa, but reiatio ceria, that ho
spake it to tbe pannel as he has deponed. At .
to the third Article ol' the Dituy, anent the
pannel's proceeding and speeches to bis majesty
■ be 33d of May, lo-wit, ' Sir, ye know the bust-
' ness. but know not the time; t-ir, either do,
' or die;' Ihis Article enforces not upon the pan-
ne) lyijig to hismnjesty. For tbe lord Kea, and
the pu)nel upon his information, both liad ac-
quainted bis majesty witli the business, so that the
pannel mi<>bt truly sBy, '.Sir,ye kpow the bu»i-
iiess;' and it is as true, tliat the pannel tnett not
the time. As to tbe words 'doordieg'that iia
usual phrase of speech, arid imports, ' Sir, sea
' toyoursafeiy,'t]II these io formations had beeii
cleared, and is of itself a faithful advice to his
maji'sty, and not a malicious counsel; ntid ad-
vice for to prevent tbe king's majesty his lisnn,
and not to draw hann upon nny oilier: like as
tbe words themselves intbrces nut against the
pannel. as the Dittay iiears; but does very
well admit a hanulcss sense, nnd should be in-
terpret to (he best menning the words may ad-
roit. ' Quia de jure etiain in dubiis ct obscuri
' quod minimum et benlgnius sequiuiur. Lege
■ nona. et 56 dc regulis Juris ; ei in ambiguis
' oratiunibu^ maxima sententia spectanda est
■ ejus qui eas protulet. Lege 96. ibidem : et
' qiiolies id«n sermo dua« sementius cxprimit,
■ en potistimum accipieoda e5t,quarei gi.>rendB
' aptior est, dabit autem operam exprimi reus
' dir.in verba at cui liciio;' to-wit, tbe revealing
of purposes he heard agaiiiit the king and'stnte. ,
' Deniquein pmnalibus causis semper benign iuf
' inTerpretandum est.' And ibereliire the pan-
nel's speaking and insisting with tlie king'^ ma-
jesty to see to his own safety, sliould be referred
to its own cause ; (o-wit, tbe pnnnel's most
bciuiiden duty nnd tender love to the king's ina-,
Jesty, his welfare, and to the state of the king-
dom, fenrin;; their faitli, upon that reltition that
hi(d been made to liim. And also fearing his
own fhilh, if llint lie should have been found
any ways remiss or sUck in not inusliii); with
his majesty to prevent those evils and treason-
able plots, so often related and repeated to
him ; and wliilk the pannel then Feared to bnva
been treason, and to have come beyond sea.
And should not be attributed, as llie Dittay
bears; to any malirioua counsel, or purpose of
the pannel, for initigatinE, or slirring up of his
majesty, to any uiddon anil violent course
nv.iin-,1 tlie marquis's life and honour; as the
pBiinel attested belore God, to have been his
true meaning. Like h he in hit daminaiion
L in bloud of the noM^nien to these
6[Si four, than any intent of either delating or
■nsertiiig any crime or fuel against these first
Chit; but to distinguish by way of narration
betwiit the one aod the other. And although
this be said, the pannel attests, that the men-
liouing of these noblemen succeeding the first
four, be taken in n>i evil part, for be attests no
meaning to tiiat effect, whilk the pannel thinks
Christian chnrity will not presume; bis wife's
■on, his children's brother, the prop of his pro-
vidence nnrler God, nnd of his wtfe and chil-
dren, ihe'cnri of Cnsails beiuj- one; and tlie
marquis of Huniley his chief by his mother, his
good danie, brother's son, ivbo saved ihe pan-
nel's life, and for whom the pannel has ventured
his life, or anv of his ; can it be presumed tlint
tbe impannelled would have intended malice
to that mass, nherein these two helped to miike
up tliedRstructionp Neither doth it appear by
any inirnf, jthat any thing was meant by t'le re-
presentation, but ail explnnation of nolilemen'a
powo'in Scodaud. Neither let this bethought
■ny new invention, iir new explanation; be-
cause it is mentioned before that alledged by
my Lord Advocate in the Dittay, and ncknnw-
ledeed thereby; neither cnn it be presumed,
that these words, prime Aeent and Plotters,
can import an information of any thing, because
all direct afiirmati'ins taaO. be enunriatinii, and
must have inuir rincutum to Join the subject
and the BtTrihate rniietbeF. Which mntuhiai
and coonecti'in of it want no enunciation ; if
no eiiuociHiion, no affirmation, nor lye. But
BO it IS, the words (prime agent) have no vinai-
bai, nor Ilie word ' plotters' simply hns no vin-
tulum betwixt them as attributes, and ihc per-
tODi nacned as tbe subject, and therefore no
nor affiroMtion, nor lye. And
459] STATETRIAI^S, 7 CrarleiL IBSl.— Tit l^M^^Jmn Lord VdtHtrit. [40D
in June, upon the Sist thereof, deponcj, that
upon Sundaj momiaK wliillc wtu Uut dn; he
•dvised tlie king't ntajestjr with these former
word*, nas, ihat he iliould goto Lundon for
more saFety, and that the paoael had do other
end of ipeakini of ttie Hurdi foresaid.
Item, The words ' da or die,' can be do
Leaaiag, because Uie; nre not wocds of nffinna-
lioD, but nf counsel or iidvice.
As CO the Pnpcr of Names, whilk ths Ditta;
nffinoi ; the pannel hat confessed to be made
by himself, and that tlie lord Rea was not privj
U [he miLing ihercQf nor delivery ol the same
to the Lord-Treuurer ; it is answered, these
vrards made bj yourself, in written with yuur
owa hand, so purported to be by the Dittay it-
(eif, in that article Hnentthe litt of uamet deli-
vered tn ilic treasurer. To ibe writing of the
whillc paper wiili peniuid iuk.nnd to the iostunl
delivery tbcrctif, by the panrte] to the said
Iiord-Treaaurer, I lie lord Rea was not privy,
he not being present with the pauQel at that
time ; but does no way* enfon^, that the Dames
aod matter nf that written paper was forged
and devised by tlie paoiie!. But by the con-
trary, (be paonel by his deposition, made the
SOth of Jtioe, whilk beam, thnt after the lord
Rea had revealed to him the particulnis, he
desired the panuel to acquuint hit miycaty; ur
tb« Lord-Treasurer, therewith; leaviiip; In the
pontiel his own free-wilJ, wltetber be sliould
acquaint him iherewitli by word or writ. ' Et
' bic moiitne spectoiHts est seiiteiitia pniferm-
' lis,' who it DO ways contrary to himtelf in his
-flepositions; but wbilks both subaist* in their
own true sense.
As to the Article bearing the pannel in hia
Eiamiiiation, being inquired for whnt cauie be
did itame tlie lord marquis to he prime Agent ;
■od that the pannel afbiiued, that he conld as-
sign no true reason nor warrant from the lord
Rea : it is answered, that the pnnoel is not
obliged to give any true cause. But that the
lord Kea'i relation to him qualu qualii it a suf-
ficient warram.
Secuado, The Panncl's deposition opun the
94thofJuue bears (he contrary of the said
Article, and ussigns the cause to be, that the
lord Rea had told him, that the lord marquis's
fuUowera had snid, the intent of the marquis's
levies was to invade Scotland ur England, As
•ksa the Pannel's Examination upun the 90th
of June purports, that upon the 19th of May,
the lord Rea came to tlie Pauoel's cb«mhi-r,
and [here puUiog (he Pnuael in mind of (heir
ibrmer speechet, told the Pannel that the pur-
{MMe of the marquis of Hamilton's kvieii, as
divert of liis cunmaiders and rr>liow»rs had in-
fimned him, was, that citlier they should not p>
out or England or Scotlatid, or if they did,
ibeythauld return to BngUnilor Sco,[land,nfid
' surprise tlie kinc's houses in Scotland, vis. the
castles of Ediiiburgh, Striveling and Dum-
barton, and fortil'y themselves in Leith, under
the pretence ol training, and should take Ber-
wick, and to march forward into England : and
tJMU the in teotkia io to do, wBt^ as the lord Rem
■aid, that he was so infonned, and as the depo-
sition in itself bears.
Tertio, The lord Rea't written relatiimi of
divers persons disoonrses to the same puruose,
of the whilk he was infonued by themtdvcs;
wbilks written rein tiotis, although they bewHi-
ten on the 18tli of May laK, yet lire of mat-
ters and purposes tint passed loiiK before, and
related of beUm to the paniKl by word, by tha
said lord Rea.
Quarto, The lord Rea at bis first coming to
bit majesty in this business, in the panoel's
hearing, beinj; asked of the king's msjtKy, why
be had not told his majesty sooner of it ; the
said lord Rea answered, because it concemed
so near the marquis of Hamilton^ who was ta
tiear to his majesty ; be was Bfroid to commu-
nicate the same to his majesty immediately, at
the said lord Rea's deposition taken upon (he
Slit of June pnrporti.
Iltia, The lord Rea't depuition made upon
tlie Slstof June, wherein he depones, that he
said lie should bring as buaest . man as Irim-
lelf, (hat would tell to (he lord marquis's boe
more nor (lie lord Kea wouhJ do ; so all that
the pannel spake herein, wns by intbrouuios,
and to therein is no forger, nor maker at
Leasing). ,
Jloa, Tbe pannel'a depoution, taken i^on
(be fiOth of June, bearing tliat the paiwtl told
the Lord-Treasurer, That tbe lord iiMtoU
liim, he had yet more, and would fay io mack,
as the lord marqtiis would not have a boa lo
den; it; whilk tbe lord Kea then pretenc
affirmed, in to much as the l^rd Treasuer
said, then ia the business ntaia end, tbereoesdi
no more wriiing. And this Mnide beJoES »■
peaced, th^ pannel affinns, that the Lotd-Ttef
surer of England heard tiiete words, and did
affirm the same before the king's miuestj and
council of England, itpon ilie peril of thepto-
nel's head. ,
Hem, AstotheArtide bearing (be loidBcat
Declaration upon the S 1st of June, that be
knows nothing against the person of the kud
marquis, but that (he marquM iraa as goud a
subject at any tbe king had: it ia aoiiserBi
(hereto by tlie pannel, thnt his deposition and
represeniHtiun depends n'>t ufon tlie lord Iteas
knowledge, but upon his relntinn made (o lbs
pannel. Aod that Declaration of the kwd
Rea's takes not away ihereUtkm made by bin
tu the pannel, and doth nut infer wakiag and
tbrxing of IicasioKS in tbe pannel wiihotjt w*i^
rant ftom him : (his ipecially being contidcrrd,
for weabeniiig and iiitringing of the lord iUa'*
oppusitions to the pannel's depoiitNDS, (hat
my loid Rea having suid these words in fn-
a«nce of ihe Treasurer uf Engtand, and juitiW
by the Loid-TreBsureror£i«land, in prescoee
of his mnjesty and council of England, that the
lord Rea wguld say so much, as the mar^atf
should not have tlte face lo deny it; and nn*
lie says that he knows nothing a nen I ihc «W-
quis's person ; whilk are omitradictory to bin*
seir.and renders himself not s " '
pPOv« ibe pwL
461] STATE TftlALS, tCbauuI. tan'-^fir Cabamia and iJobMoiu Spacha. [46S
Ileal, Rett the piDnel, in thii ptace, repeata
the objections of the Dulllties, mule agHJiiH
ibo bird Rch'i OepoMtJuiis, m fur u the
(WBcmajbe pr^Ddicial to tbe pannel.
Item, As to tbe Artkic, besriiig that the
paooel being atked, by ubat ttamnt, he colled
tlie three earla riotten ; pud that he aniwered
ihmt the lord Kca bad told liim, that the lord
Seafbrib bad afflimed to him, tbtt the earli of
Mdrus and RoxliuTgh were acquainted with llie
partieotan and lecreta of that busineu; de-
darin; there witli, that the lord Rea hnd
aOnued the same to bim, before he E)i*e in the
paper of representation to mj Lord-Ti^asurer.
Albeit the lord ilea, b; hi* deposition the S4th
or Jane, declared, that the Gnt time the Inn)
Seafortb had ^kccIi with liim, anetit tlie laid
two earli, asd tbeir beins priry to the marquis'e
hMtne-a, «u upon the Mondaj alter the mar-
qnii'B coming out of Si^Dtland, and not before;
Mid «o aflcr tlic nprewQtition given in to (he
Treaturer mioa the 10ih «r Maj, cotitnininc
the name* of tbe Plotter* and Acton ; at uhilk
time the pannel could noi Oviy affirm anj in-
fiarmaiton from idj lord See : la tbe whilk it ia
•n»*ered hj tbep:ttiael, that he, b; hii depo-
kilioD loado tbe 34th .,{ June, Itu dcclareil,
that all the rnldentanding the punnel had in
lbebu*uiesi, cune to him from l)ie lord Kea,
■koby bis deposition the 30th of June.
Ilea, The lord Rea's gninting of ihe^ipeech
luaiself, aoent the two earls, makes presump-
liaa against the said lord Re«, likewise for the
time, * Quia dicta facta pr^aupponuut et tnt-
* tuiat le cum suis circumSiautiis :' neither it
k probable nur ordinarj, that there sliould \ie
that u^cily oF spirit in the p*nnel, nt to press
irfaat the Inrd Rea •hould make to bim so long
tacfiire, ' Qood non prKsumitur, sed prtcsump-
* tiOf pro CO rat, qnod maiinie tst, secundum
* aaiaruD toto ; titalo de presumptinnibus.'
And so this Article enforces not «)^inst tbe
pamd, that he it maker and fonter, becau!>e
ifae lord Ren rienii's not simply, but ibe tine of
tbe panoei's deposition tbcreaneiit, whjlk is
/(ear, Tlie pnnnel in hii Exntninatton op
the 90tb of June, in tbe coiiise and order of
the depositions thereof, ohilk is the order of
time, before the article anent the repreienla-
tion ofihe lift of names to the Lord-Tren surer;
be depones, that the lord Hea had lold him,
that ha had spoken with tit; lord $e»furtli, and
had anderstood thai from bim ; whilk |>entral
has no other meanine hut that whilk i) pani-
colariMd, by the said lord Rea'i E^iaoiii-ntinn
opOD the 34tli of June ; in that article ihereuF,
beuint; ibM the lord Rea did uffirtn to the
panacf, that he beard the aforcMid report of
tbe two earis, before the panncl mnde or deli-
vered the paper of representntion.
Item, The lord Riea's deposiiion upon the
t4tb of June, beats not tlie lord Ren to deny,
Chat he did affirm to the pnnnel, that be heard
the report of tbe said two MHs from the lord
Seafianb, before tbe pannei mnde or delivered
the paper of rapresCDtaiion to tbe Treasurer.
But purports, that the first time that tbe
lord ticatbnh hnd any speech wiih tbe lord
Hea, touching tlie two earls, tlieir bring prirj
to the particulars and secrets of tite lord
Hatniltoii's business, was upon Monday after
the marquis's coming I'rom Scotlnnd. And so
iLHt the lord Seaforth had notspuben with the <
lord Hjia thereanenl at timl time; whilk ia uo-
thlug to tbe pannel, nhether the lord Senfurth
'lad spoken with tlie lord Ren or nut. But
leiiies nut the foresaid report of the (no earla
mnde by the lord Rta to the paimel, whilk tba
lord Rea did then aftirm, tlut he had the samo
liy inlormslion of the lorri Seaforth ; neither is
tbe paiinel ubliged to makd good the lord Rea's
warrant herein, that tlie lord Rea had the same
by inFormBtioii of the laid Seaforth; hut the
Xiestioji is, if the pnnnel henrd the same from
e brd Rea, before the Riiing in of the repre-
seiitatioti to the Treasurer, wbilk the panne)
B&irms and abides at, conform to his deposi-
tions, made upon the SOifa and 94C]i of Jun^
Ilem, The pannel here also repeats all the
nbjtctioos agaiuki die lord Rea's DcpositiouSf
ul tupra.
Iltm, Anent the Article, hearing, ihe lord
Ren to have told the pannel, that lie ciiuld not
guess who dse should have been in tlie plot,
unless it were the lord Buccleugh ; and that ,
tlie lord Rea, wlui by his drpositiuo upon the
!4ih of June deponet, tb:ii ibe poiinet, and
not lie, did name tbe earl of Buccleoi^h. ai one
would take arms in Scotland to aasiat tha niat<-
i|uisi It is ansnced thereto, u< luiira, that the
pannel by hii dsposition hna declared, that alt
the understanding lie had in the business, came
10 him from the lord Rea ; us ihepannel'a ex^
miii.'ition beaiSj and wliilL he ubidea nt as most
Ilcia, Thepannel's deposition upon the ^ith
of Jone, besring the lord lien told iiim, anent
the earl ufBuccIeugh, is nut simply, hut rum
rauio, beariug the lord Iteu's re.ison, whereforv
he named him : and whilk rea>on in suUtanc*
is granted by the lord Ren, although with soma
diversity of words, at the least nut denied in
his Examination upon the 3-lth of June. And
therefore, the snid lord Hes's deposition affirm-
ing the reason, but denying the. naming the
uid lord Bucclen^h, ought not to be credited
in his denial ; but tha lord Kea'a elSnning of
the reason, inforces upon liim the naming of
the said earl. < Quia ratio confessa dicti pra-
■ ponderat et pncsumit contra proferentem.'
lUm, The lonl Rea's speeches to the paooel
nnpnt the lord BncdeuEth, though conjectural,
necessitate the pnnnel to the representation,
und revealintt of the same to hii majesty ; es-
pecially seeing the lord Rea strengtheneth tbe
same with reason wberefure he so spade, to wit,
ihst he heard the lord BiiccleH|ih speak tembia
and pmumptuou* words against the kini^'s
majesty, at his own table in Holland;' as tba
pannel s deposition upon the a4th of June pur-
ports, and whilt is granted by the lord llsa
bimt'elF m aubstance, at the least not denied.
1G3] STATETHIALS, 7 Chauxi L 1631 .—Vie Trial t^ Jama LtfrdVi^atrk, [464
Item, llw punnet repeat! here again all hit
objeciiun* atiaiaat the lord Ilea's deposid
and altcttges tbnt it wis uever beard nor [
tned, tliut a solijecl bring necessitate b; the
taw, tu leveal wbat ina^ coocem liie king u>
Mate, anil revealing the sunie with his inrbrioer
therein, and constanily abiding thereat, and
willing tn mniiiuiu t!ie s.'ine bv an; trial ni
tonure, that tl>e tevealer, upon the part/s dc-
ninl, skoutd be called in quociou of liis life, oi
tbe lame an; nays wnik ugaiiiit the reirealer.
And wlnlk if it should nu* take place, gml
be;;in a preparative against the pnnncl, the
mine were to i^ive wa; and or^raiiioo u> all trea-
lonihle eicpluits ; and thnt securelj:, because
none would or duni reveal the same.
And furtlier, where it is aft)<nied by the
dittsy, ibAt in the liil presented by tlie paniiel
to the Lord Treasurer, there it desii.ned the
^arl> of Hacliliiigtou, itix' ui^h and BuccleuKh
to be Ploitera ; tite pitniiel had (irouDd to make
the relntii'ii, nn ways alJiiinin; any lliing pO'j'
live ; becauee in the pannel's depoiiti-m made
the 3Uh uf June, bein:£ o^aniined nuil a^led
why in ilie aforesaid puper, be makes the said
earls plotters;
It ia answered in tlie Deposliion, that the
lord Rea had told tlie piinncl, be could not
(uess who else should be in the plot, unlets it
were the earl of Buccleugh ; wliiJt word Plot,
having bad relation to tbe earl's business, must
also have relation to the other two earls, seeing
they weretpokenofall ntone lime.
It is answered by his majesty's Advocate, first
to the first article of tbe fifth exception, anent
the pmging of the Pdimcl's speech co liis ma-
Jeity, upon the ITth of May ; Ht iIus word that
i« subjuiued, as the Pannel is infunned, wbilk
the propoiier for the Pannel will hare to be re-
pe.iti'd in oil liie subsequent passages concent-
mi; liie business; first, that this wonl, ' as he
* is informed,' cannot purge him, because be
received no positive iuformatitin frotD the lord
Rea against the marquis, nor no warrant to call
hint party, prime agent, nud to alStm to his uia-
jestjr the business wsi known ; to wliilk Inst he
sub|oins his countel, very dangerous for the life
■nj estate of tlie marquis; wliilbi three &ie
conjoined to infer against the paunel, an ex-
ceeding of the relatinn made to him by the lord
Rea. and the eiceediog of it, with the peril of
the nn''leaian, his life and estate; there being
neither word nor passage in the litnl Sea's
written relation, whilk may either warrant tbeir
speeches, orinfer tbam by consequence. And In
matters of this high strain, ai »f treason, nn illa-
tion by consequence is permissable, but upon
the peril of him that inrcrs. For in all the
wnlten relation (here is not a direct word
spoken aiiain-it the marquis, neitlier by David
Ramsay. Qor by Mr. Robert MeWrum ; but
allanerly some mad and Trantick speeches ntler-
•d by Ueldrum upon bit '>wn imai[ir>Htiiin, or
wish to h.ivr it no, fur disturbnnce of ibe esiate,
by eipreismg the manner li>iw such an enier-
prize, nccnrdrng Co his fonlish upiiiiun, might
l>tp«rfurmtd; bM nut ons word or ijllable,
that Meldram heard it frtmi ifae lord mirqnii,
or from any who dedarM they iieard ihe maiw
quia speak it. And as lo David Ramsay, the
worst word that is in his relation, is aneni tIte
marquis's imEounl«ntment, and all the marquis's
aim was tu use bis levy ^>r the protection of
religion ; wbilk aim ninl intention the lord Rea,
after his coming t* ivntiland, clearly sndeninod
by tbe lord marquis liimself; wiio employed
iiini to be u colniiel in his con)pany, and gate
him ibis assoranc?, tltnt he tliat wquIiI hazard
with him in lliat gloiious business fur aMistsnce
uf the kiot; ot .Sweden, khauld make use oF liim,
u'itli the hazard uf his furtuno and estate : and
none of ihese passages wilt quadrate witli ibote
apteches »|Hjkeu by the Funnel to bis miycsly ;
1 bat it was a treason, au odious treason, and
tbe lord miirqui'. party, as ibe Pannel was io-
fonued; and tiiat it was the filthiest ireasoo
thut ever w;is intended, and that ilie Panoel
VIM sorry that any Scuisman should have lall^
into it, it lieing a shame to the wiiolc nation:
whilk is a positive atbrmaiion, not as the Pan-
nel was inli>rmed, but as Ite himself ftid inSer,
up'>n the reluliun made lo bini by my lord Rea,
hIio would gifc the Panoel no assurance he
had any certain around, whilk is maiiilesi by the
Paimcl's depnsitiuti upon the 30th of June last.
And as to the relation albeit it avowed with
these words, as he is informed, coulH give the
Pannel no warrant to express these positire
speeclies lo his majesty, upon the 17th of Mny;
En Ut less to the otiier of prime agrni, and
known business, with the subsequent connML
First, Because they are positively spoken vriib-
uut adjeclion, (as lie is iiiformeii), and where
the proponer for the Paimel urges that tliese
words * as he is informed,' most be repeated in
all subierjuent pns^a)•el; that bns some (iroba-
bility, ' in unico cooiinuo actu, vel unica scrip-
tara.' But here the acts nre diverse, the davs
diverse, ibe expression nf writing dtrerse, the
list being upon the 16th of May; the s;]eGcfa
with the king, as he is inlurmed, upon ibe ITtli
of May ; and th« speech of tlie known business
the council being upon the ESd nf May:
and ihese three taken conjanclim evidently
cliarees the Pannel with Ihe excess ofliii daty.
For he did all his duty that was required of bim,
Bi a faithful sDb)eci, when upon the 15th of
May, whilk preceded all tlio eipressions, be
came lo the Lord -Treasurer and told him, that
he had a business to reveal concerning hii nia-
, and whilk, as he said, concerned tbe
uia nf Hamilton's actions, and that he had
araeof the lord Rea: attrrihe whilk, be
bod nn necessity as a loyal iubjeci, to go far-
ther. And yet he goes on tu the expression of
all cbe^e Mtieeches. and adds Iheretuliis dai^
coiniiel lo his ma|esly ; wbilk can have no
respect to the lord Hea's relation, nw ta the
Pannel'" duly in revealing of it. And where
the Pimnel would purge bis giving in of the
ists hrsc, because it is not an eouncietive
'peerh, ' quia caret vinculo :' ihii is conirai^
to ihe representation, bearing the 13in«i(u<a ■'
tbe marquis of Uatuiltonas prime ^mti and
465] STATE TRIALS, 7ChahlesI. lOSl.— /or Cabimia and ilmderousSpfechet. [4Ca
cause he brouRht tlie lord Rea m his innjeslj,
Isnf [o innke tlie reintion. And the lord Rra. in
his retulion lu liis mnJHt}, spake ner^r a iiorrt
of the three earb ; nor jet the pnnnel in hi*
relntion ii> the king'a Riaicsty; ond the Lord-
Trensurer, spnke not n s^linble thereof: wfailk
is clear bjr tlie paiinel's JepoH'tions apon the
20th of June, which beurs his relation, made in
presence of the couticillurs his eiamitintors ;
wherein is an word of the three enrls. And
likewise bj the Examination of the lord Hea
upon the 31st of June, which is such like; and
when his niajest; had remitted the pamiel end
the lord Rea to the Treasurer, irlio directed
them to draw up the lord Rea's relation in
writ ; the pannel coufesaeih, that he and th«
lord Reu Trent home, nnd snt up all night; and
that the pannel, after the lord flea had put the
relaiioQ m writ, did write the snme over with
his own liand, out 'of the lord Rea's Papeis.
And jet not a nord of tliG relntion of the uire*
earfc; which would not haie been omitted,
if it had bren truly done. And where tha
pnonel pretends, thai the omission tliereof wM
in respect thnt the relatiott contains allanerty
that which was related bj the lord Rea upon
the 13th of Maj'; hut not that uliich was upon
14ih and Mth of May ; which nns learned of ■
the lord Seafbrth; iliat alled<;eance liath no
warrant of the relaiion, nor yet any appear-
ance nt «dl ; because in ihe psnucl's examiiia-
tton upon tlie 90ih of June, ihe pannel doih
condescfnd of ihat which was done upon Om
14th and 15ih of May ; but not one word of
the earls, albeit in that same examination Im
makes mention, ibat tlie lord Rea had spoken
with the lord Seofonh. And bic-lite, in the
e:iaminatii>n of Doaaid lord Hen, upon the 9IK
Metros, Kiiiiburi^h, and BuctHeaiili plotter
Wbilk is ■ sentence thnt lias « clear sigiiifien-
tkm, nffirmint; the nttribute plotters upon tliem
three, in as evidei>t and cluar signiRcatioo, ns
tbe douse subsequent, nhilk names the whole
Boblemen adherent bj blood.
And where it is alledged, that albeit the pnn-
Del named the lord marquis prime a);ent, he
did allanerlv upon intention to discinguiali tbe
Biarquis, and the Other three earls from these
of tiieir adlwrenls in blood; and urges that
tliis intention should be charitably expounded ;
It is answered, that ' crimen Tel delictum
' noa potest purgari bona intentione.' Anil if
lite peints oontaiued in the Dittaj, whereapi'ii
die pannel is accused, be in their own nacurs
criminnl, they cannot be purged by a good in.
tentitm, nor yet by a proiestation adjected, the
time uf the doing iL But the intention, with
the fact and deed, are both alike judged odious,
and punishable. ' Et nunquani pnesumitur
* bona intentio nisi pmbetur, ad eluendiim cri-
• taeaf as it is instanced, by Jul, Clarus ;de
injuiiis, ' tn mentiris salra rererentin.' This
iiMtaace beio); udduced, wbilk by tlie opinions
of alt cbe doctors cannot excuse the committers
of tte injury, and much less In this Dittay ;
wlntk coDtHins ' injariam capitaleni,' striking
«nn the life and fame of tbe noblemen.
' Naia qui defamat, ju^ulat plusqunm maledic-
' to qoaoi in manu injuria est qui sic incidiatur,
■ nt nota et iamad (losteros traoseat, q^uod e^t
' srpe eundent ocddere:' and chanty can
tm-ve no place here, oithout the oSence of jus-
tice, whitk craves the due punishment from (he
offimder. And where it is nlledgeif, that the
pannel had no warrmntjlmtb to name the mar-
qai) prime agent, and the* enrls plotters, by a
>arbal relation Troni the loM Rea, tliere can be
ao respect had to a verbal relation, except it
were proven to the judge, especially in a mat-
ter * ttube Btrocitaiis.' Neither can the piin-
fieJ aliedg* to a verbal relation, to colour his
belMTioiir therewith; because the pannel af-
firms, thitt ^leir verbal relations were made
■pon tbe 14th and t5ib of May; whitk pre-
cedes Ihe relaiion exhibited in writ, upon the
18th of May. In the whilk relation t^ere is
■Mt a sjUablB of the three earls ns plotters ;
Dlbeil m Ihe relation there is mention made of
tha speeches spoken by the earl of Roiburgh to
t)K Inni Rea. And the pannel having given id
Iiis list upon the I6th of May, add knowing the
peril of mhliag or paring to that, wldik was re-
Micdtobimin a matter of this importance;
whilk should have been as tenderly handled, as
tb* lift, honourand safety uf our gracious sove-
reign upon the Doe side ( and the care to es-
cfaow toe branding of noblpinen with the odious
■spersioa of his treason, did require of him, on
the other part : And cannot pretend a colour
at eteuoe by the omission of the names of the
•aid three earts ia tbe relntiin given in upon
tbe IBth of May thereafter ; specially seeing
die cdaiion b efect wa* hit own deed ; b«-
TOL. Ill-
the relation, which' behoved to he upon the
90th of May (relntinn being upon the IStli),
the pannel brbiighl the lord Rea to the 'L'rea-
surer, and caused him to subscribe his rela-
tion ; at which time the pannel told the Lord-
Treasurer, tliat the lord Itca had more to say :
whereupon the lord Rea beins asked what it
was, and wherefore detained, ihe lord Ilea an-
sivered, ihat he had spoken with ihc lord Sea-
forth, and had sundry pniticulnrs from him,
which he did not tell to the lord tichiltrie in
particular, but generally adinned ti him he
would sav "lore. But one or two days after,
the lord Rea went to the earl of Seafoith, and
then told the same, first to the pannel. And
that the pannel, upon the Sunday of the moil-
ing (which vras the day of the marquis's retunv-
ing from ScotiandJ he hnd ti>}d tb« Lord-Trea-
surer these particulars, riptken by the Inrd Sea-
forlh, and Aerewith also of ilie iimrquis's re-
turn : whereby it is clear, Ibat as nothine it
contnined in rl>e relation tOuchiui^ the lhre«
earls, neither in the verbal relation to his ma-
jesty ai>d Lord-Treasnrer, nor in tbe tnbscrihed
relation ; so the speeches ihereanent spoken
by the lord Rea lo the pannel, was init till ci^l
<nys afterjtvioginof tbeliit.
2H
<67J STATETltlALS, TCuABLEsI. IfiSl — ne Triul <f Jama Lord Vdattne, [V»
u Ii>rd lUit Til
lees Lis oinissioii ; it U aDswcreil, Qrst, i< must
biod bJai, because be hits named huu to be his
-HUth'ir: and whereui he is not his ai)lhur, tlie
pnniiel hioabelf must needs be the Ibrger. And
neit, because the rduioD in effect is ibc pun-
ycl's ouii deed, as sniil is ; and ns to llie pur-
Ktion of the s|ieethe», that tJie business is
own, ' Sir, nihcr do or die ;.' tliat tlie same
inuit be interpret ' sccuuduni comniuitetn ueum
' tuquendi;' and lo in«Bu as micLel re, tea to
joux own safety: it is wuuered, tbst tliey
muiat be taken properly, and uot improperly,
Mid must be ruled by the prGcedioE speeches
of (he party and prime aj;cct ; as if tlie pannel
had s^id to any persun, this man ^lew yoar fa-
ther, ' do or die.' In the which cds«, the
words would not be cxponed safety, but re-
vrni^e : and where it is all^dged * quod in du-
' bill beiiignior fieri debet iuterpretMio ;' this
rule of Inn has nnly jilace ' in contradJctJbu?,
< ted non in crimiuibus, prieciprie attocioribus,'
u lhi« is. But it i« ni^ed, < liic sumu) in tHc-
■ Ui licito i' but it is answered, ' hie in mexime
< illicib'.' Beciiuie there was norhin| required
of the pnnnel, but to reveal, whilk was dune of
before ; and whatever was done after the re-
venliiig, that might tend to the hurt of the re-
putatiun of llie nnblemen, or touch them id
(heir life nnd estate, was altogether uulanfut
nnd CRpital ; and the unlawAdntss is manifest,
by the iub|oining of that pernicious counsel,
' to do or die :* wliilk is not of the nature of a
relation, but of tbc nature of tlie inUigaiion,of
a sovereign prince to a dangerous act, tending
to tfae ileatructioii of the life nnd honour of
ibem, against whom tlie countd is given ; and
by their answers, tbc whole objeciions made
a^nst the particulars of the libel are solved.
lo the which is added," the lord Ilea's dfclaro-
tiiin by oath, freeing the marquis, liis m^esly's
ktler of the SOih o( June, ^ut dowu to the
council, dcdarine the lord marquis, and tlie
inid three earls of Haddington, Roibut^h nnd
Buccleogh (to be as his niagesly knows tnem to
be) OS good and failliful subjects as ouy within
his majeaty's kingdoms ; and declariiijt bis ma-
jesty's resolution, to have those who have giveu
fnlse infurmntion agninst them, to be punished.
After the which, dtd follow his majesty's letter
of the date of the a4TbofSeptciuber, lor trying
■nd censunogthe pannel, npon the' particulars
given forth by him againsc ttje noblemen :
wbcreitf'tho paanel, notwitlistonding of all his
[lurgationB, wui have no justwarriint against
(he marquis, specially in the two lost points of
prime agent, aud known business; dot pretext
against the eaiit of Iladdingloq aud Boitburgb ;
but, by th* pannd's confesaioo, letut of all
■liainst the carl of Buccleugh, against whom he
had nathing but • guesa by hit aHa coofettioii,
■lid yet be makes liint pkilter.
It is duplyed liy Mr. Roberl Nairae for the
paimel, (bat this PiLtaycontiststtpanthiee deeds
(o the pamiel't inteDtioa, that tt waa B«t of
purpose uf making any Ua^np, a|uni,i tite act
of parbomeiit, but to the revealijig nf an alMg-
ed treason against his majesfy; the revealing
whereof was necessitate by that addition ad-
joint to the hit( act of pvliaoieat libelled; for
obedience of the whilkact, (be pannel did what-
ever was done in this businrss by lum,aiid that
the lirtt part of the dittay is oot Eelerant against
the pannel to infer the puniBhmeiit libelled
against hini, is clear, by returiing of the argu-
meut after tliis aianutri A deed commanded
by the act of parliament, cannot inilera puaisb-
ment by thsaame act of parliament; trueitii,
that the lirat deed contained in the assuaptioD
of this ditta^ waa commanded by the act of
parliament, unponing a necessity to all boarais
of treasonable tpeeche* against the kiag or stale
to reveal (ba sane: Er/fo, be dkl tbe same
lawfiiliy. Wbcieas it is ulledged in iha diitay,
ihtt by and after tbc information which tlia
paniicl hnd by relation, he has exceeded in tha
particulars expressed in the diitay. And first,
in the first particular, at ifie doiiijt and speak-
ing wfiereof by and a^er tlie anterior ioloima-
tion, which the pannel bad received, the iori
Rea his author was present : wim. being inqnie-
ed or by hi* maiesl?, wby lie wiu so long in re-
veiling of tbe alledged ireasons; be answered,
That he was afr^iid to do the same, in leqiect
of tlie nearness betwixt bis iKiRJesty and the
marquis. So tbat that which tbe (Miuel did
for obedience (o tbc law, and bis author bong
present beside him, is no ways relevunt td mfa
tlie punishment of Leasing' maimers against him
contained in tbe act of parliament. Like w
also the said lord Ilea, after tlie said rdation
to his majtsty being remitted to tbc lord-trea-
surer, declared that ibe marquii «m plirty;
and further said, That lie would cause a* bonHt
men as tbe lord Rea himself to nffinn tbf same.
Ubereos my Lord Advocate, in his reply,
quarrels the fonoer words positively set doan,
and not byrellilion: it is diiplyed. That the
fonn of tbe speech is not in questnn here, but
the matter ; for albeit, that tlie panoel had re-
ported in other words, or by a dcscriptioo, or
parsphratP, that which my lord Hea related
unto him, without changing or altering of the
sdbstancc, commits no &ult, nor ctnDot be
accounted tlieref(n« a leasitqc-makcr. And
liere ihe proponer rqicals tbe words conloind
in the rehuion and depositions, which be remit*
to the Judge* cootidcratioii. And to tbe te>
cond part of llic subsunpuoD, aneiit ihe deli-
very of the Liu of Name* to ibe treasarer, il
is answered. That tbat part of (he Ditiay ■>
most irrrievanCf And cannot be sabiumed upon
tbepropositionoftheindictineDt; fortoretsoa
thus, oil leaaing makeis should "be jtuniibed.
True it is, tbat the pannel bu written, and
delivered a liit of name* to tbe treasunn
Ergo, be aught to be panitfaed, is an evil aiga-
ment, which i* rnaitted to tbe judee, escepi
it bad libelled, lliattbaMidKBtcontaiiMd leas-
ings, wbich is not libelled. And albeit il bail
been libelled/ it ii alledfcd, that iha i^ kbt of
4GB] CTATETRlALS,7Ca*mLtsI.IS3'l.
tlMDCSMit nMt down.coDCainsno pur]»iMr,rOT
it it not written therein, piime i^nt and plot-
ten iniuGb a trensoni oot odIj indefinite prime
^ent and plotters. And if the punner irill t^pce
thoe noiit, lo this altedged treaioii contaiDed
bi dw nlXKio, dw pnnnel then will repeal the
word osed at b«lbre (ai he is infarmed;. And
bet* ■tladge*,th>t:iLisule>ome,nrrathermore
IcsooM to the pannel, to erk me words fur the
panael'l tpo^, nor tojJre pimaer of tlie Uitn;,
to eifc othcn far bis accuMitoc. . And albot
the aaid ooi^a bad bean adjected, whereb; tbe
MDtence nucht have been tilled against the
pannel ; yotne dote* himtelf wiih the relation
mmie h; tie said lord Res verballT, befeie
Making of l>c wriltsn relation. And where it
is diipoted, that there cannot be a verbal rela-
tion here nspeetod ; it is answered for the pan-
nel that k is clear, ibe written relation we
leatved ofiie uanjuis's servants and rollowers
And Wier Hlled^ That the disputation
of the tii>* of the erini in of the List upon
the luMo;, and the time of the Bpesking of
the lonHea vitli the lord Seofarth, upon the
Slst dr> " ^° "■;= relerftnt nor Eaatetial ; it
)^nt«n&t»ed, at tlie least not denied by mj
ioriJ ^^ '^"t be bud related of the three earls
to |£ pannel ; For tite deed being constant,
th^ircumitance of time it not to nialsrial,
ui cannot be presumed that the pannal should
he anj knowledge thereof; win had of be-
fc been very lone absent, and no ways in-
.fested in their advice, and altt^ther ignorant
if them ; could of himself withant any informa-
tioD, named the saute persons whom the re-
veakr was lo nnme, aati none other.
It is anixered by his mnjesty's Advocate,
Hmc be oppoiK* the Dittay, with the reply
■unde to the finmer defences.
Lastly, It is alledged for the pannel. Thai
•s it caunot be proceeded ai^aiust the panuel
here in Scotland, but conform to the Irfws and
stalntes of England, the place of the ponnet's
•Itedged offence, and according as ilie ftict is
pooishaUe, or not punisbable, and more and
less poDiahable in the kiiii^m of England ; so
Jicre can be no le|^l accusation institute or
laid Bgainst th^i paaiiel here in ScotUnH for the
■aid Acts mid deed, but upon the laws of Eng-
land, or at least upon, the cemraon Ian. And
true ii is, that the Dittay is not founded apcm
the laws of Knglnnd, nor <iia upon the comnian
law; but upon ttismonicipal laws of Scotland,
and acts of parliament thereof: And therefore
the Dittay is no ways relevant, sabsuminf; and
condiKltng upon the acts of pHt4ianwnt, men-
tioned ia the proposition of the Ditt«j.
- Item, If ihe relevBitcy of the Dittjiy fi\ be
MStained, it is alledged, that tlierd can be no
paip inflicted, bnt lint whereby the said facts
and deals are ponithable by the liws and «ta-
tmes of England, or by the oummon law, apnl
no wajt by the pains mentiaBed in the said
^ts of parliwuent. 'Quiajadev originis vel
< duniolii nun potest ponini subditum delifi-
* quentem. e»tra territurion^ i ' '
—for Cal6nmici imd thHierota S^Mtchn. [470
' pcenam imposhama juiccomniuni vetstntutis
■ loci in rjuo deliquii, non anteni secumluiR
' statuta ipsiris loci originis veV domicilii,' Jul.
Claro", Qoiesiio 85.
To ihe wliilk it is answered by his inn)CBiy's .
AdtoCKie, Tlnit the first pan of ihr allcd|;i;ance
is altogetber unreasonoble and absurd ; mid ns
to ttie second part of the alledgcnnce, it it nn.
■werett, Thiit tlie pannel, being n Scoinn:iti by
birth, and also ftoarf Amtriliuin being i^ident,
by his lady and children in Scotland ; ^nd liav-
ing commttted the crime libelled ngnfmt tour
noblemen in Scatlnnd t lie mnst be sul^iict not
onU to the laws of the kingdom, but to the j^ilh
and ptinislunent contained in the Inni : like iii
his roojesty by his missive letter has ordained
him to be tried and censured by the laws of the
kingdixn. And where it is nllci|ee«), that Ire is
only ponishable by the pain infncted in Eng-
land, where the crime is committed ; and for
this alledges 3ei. CI. in his Ssili aupslitn ; &nt
Julius Claras in that place calls ibe rmittrr rii»-
Kiable, ' et egere decisione CesarCa.* Next,
adduce* the number of dortors, cnn8irtiiig
in div en opinio nil pro it nmlta. And in the
end he seems himself tu incline (o tlie punish-
ment ftici delicti. And flfter it, cites Mariiiniia
in cap. * Postulnsti eitra de fbm cotnpctentl :
' qui didt genemliier esse comuiunein conclil-
' sioDcm, qund delliiquens debeat panire puiaB
' imposiiii a statutis Inct in quo delinquent
* punitur.' And this last speech afler liis oi^n
given, ad cauli)mtm,Vi^ee the judges ftom iri-
quisilion of law. From vhilk ibe Joitic^r
General is well walrai^ted, Gy liii majesty's let-
ttr coramanding the pannrl to be jmJged, con-
form to the lairs of the kirgdom.
And further, it is granted by Jnl. Ciitr. to the
which the proponer assents in bis Bcceptation,
' quod posset delinquent punire pcpriB iuritcom-
' munis vel p<ena loci ubi delinquitiir. But so
it is, that by ttie common law, ' CnlumniatorM
' pnniuntur (icenRtalioni?, Irgc ijmsrts Cod. d«
' Calumnintnribus, novella Leonis 77: I'ge
' finnii Cod. de aecusatlonibus Leg. 3d. digest.
' de peenis.' And Cicero in his fnvjraentt cites
the Lnw in bis Tivclve Tables, in these words :
' Nostrie inquit, ditmjcdm fabul* cuiiiperpftu-
' cas res capite aaniisMnt ia bis banc sanxien-
' dam putfrv^'rinl ; ft) tfuift actitiivisiFt qiiod iu-
' ituuinin fmeret flBgiiiumve alteri, et prteterca
'atrox injuria, de jure comrnuni ponibilttett
' pcena moriis.' Jul. Ctar. Questione 83 nu-
merot.
Tlie Justice eontrmiM this Wet with idl fur-
ther diKpacntinn and rensonine in this matter,
lo tlie mom the third day of December instant ;
and ordaiim ili^ pnnnri to be r;etimied back to
his ward, therein lo remain in the mean tune.
The ptrsoni of assise warned thereto, opminrfo,
■9 or befdre, tR person nnder the pain of 1,000
Curiii Josticiaria 8. D. N. Re|^s fent* rn priBtii-
rio burci de Eritnborgli, tPilitf die meHsls
I>ccembrii, nimo Dom. niillesiilio, selceA-
471] STATE TRIALS, 7 Cbable* I. 1631.— We Trioi^Auw Lord UcMtrie, [471
1, iri^imo primn, p«r lioiiorabilet et | Meldnun, m tlw lord IUa'i aullxir of tly
IS vinis, masisircH Alexandruia Coi-
villo de BUir, et Jucibum HoberciHiu, Ad-
x'Ocariim, Justiciar Ins dcpulucos nohilia k
potentis comMJs WiUIelmi L-ainitii de ijtia-
tlienie tt Mootfitb, dom. Grabame, Kil-
hr3>de, ei KyIlpun^ pretidia secreti coDciJii
ac juiiiziiirii geiienilii diet. S. D. N. Qegis,
totKu sui regni Sciiiae, ubilihet '- ■
James lord Ucliiltrle, delated in the cnmcs
ibrwmid, specibed ia bis Dittuy.
Pursuer. — Sir 'Ihomni Hope of Craigholl,
knight and baronet; Aduncate to our tuvereigii
lord for Ills lH)>liiieB!i's eiitiics.
ProJucuCoisj.idL-r«iice.— Mr. RobfrtNairiie,
Mr. Aleiuider Pienon, Gilbtri Neilson, Advu-
II is duplyed bj the said Jaiues lord Ucliil-
trie himMrlf, bung eiilf red upon pannel anent
the fuM part of \ay Lord Advocale's reply,
bearing, that ibeClauwle, as he wat iofoniied,
cun no wajs be FCpeated in the particuian.
And althougli the pannel au iiaid,^et he lias po
positive in fiinoation from the lord lU'a; it h
aniweied, the tame ought to b« repell^, be-
cause of the clause ' as the pannel was inform-
ed ' purported in tbe Dittuy itiell': Fur ttie pau-
ae\ iiioLai wliilli is the!>aiue,undsireugtborclie
(thole Dittay, is necessnrilj uiidentood, and
ahould be repealed in all the subsequent paa-
Hges 111 ihe Dittuy ; because it U anient aclui
(ouliaaalui. And wliilks nbolt; three parts of
tbe »ub>unipboii, As tbe^ are u^ed conjunctly by
my Lord Advocate agamu tbe paiinel ; lo the
pauiitl al1eil|;e!i that these woids, as be is iii-
fonned, contained in the geiieralL uiutt be un-
deniood and repeiiteJ in all the ihrte several
parts of the subsuuipiioii ; as bciuK the sum ol
all, whilk is after alledged, or wiis ofier imparted
by I lie pnniicl, and ooglit so to be undeistooil.
And wheie it isaliedged, l hat >v here ihe pannel,
olthuugh lie s^iid, ' as he was infuimed,' yet it ia
no positive ioforniution from my lurd ilea, to
grouod a posiiiTe assertion of ilie whole, o>n-
taineil in tlie Diltay.
answered iliireto, He had
speeches ; £rst. tlte pannel protett*, he urges
noihiug agaiust those uoblemeu from himself,
aborigine. Bui ha adlieres to I he Jtelalioot U'
tbe lord Hea, lethalaud by writ; neither dis-
uuiei he BKainBt Meldrum's suQicieacy, or for
It; but that Meldcuni's wurds, rebled to
him by tlie lord Ilea, gave him juu ground of
revcalii^. And as to the words alleriged, re-
lated by the pannel to. the king, anent tlia
odiousnesE of the matter, and thelord wanjoii
party; ihiii ciinno ways be laid uj ibepauoal's
choice as a fault, much less as a :riine capital,
because the infonncr, \a. the Itrd Rea, was
present at the discourse ; and nlated huaselT
to the king, eodtm fiin^rf, the jarticuUis <rf'
what the paDnel had spoken; neiiler did he at
that time oppost: liiui, nr coutradid biin in one
circumstance, wheri by tlir piuiiel vas inujUe
eionered, and therelure uuKht not now to be
laid to his charge. And fuithciiij ihetimeof
llw pnnnel's lelaiing his onn word, thr pannel
atlinns, thai he did it with teats tming over
his cliecks, no sign of mahce, or suwig sedition,
in expt^saiog these Hoids to the kh.^ like m
bis majesty bare record thereof, bfore the
council of England, tlic lOipauDeUed bug pit.
And to tW part of my Lord Advoca/, ]{«.
ply, anent tlia lord mitrquis to be prime icgt;
tbe pannel repeals ihe brst member of h j^.
ply, together with the iinpauuelicd's foruic^x-
ceptiuni Ihereaoeiit.
And where my Lord Advocate aHinns, l^
the pannel did his Uuty sutticicnih in tlie hf
discourse, and might have bc<[U je&ced tlietp wi.
duty ; the panoei nihnns, tliut lie rould not, b(
cause all the time, from tlie 13lh of Mny to tde
30th, it was aclui raniiiaiiUus, b^ cnuslanl in-
tions lud in fun
Kd
.whilk
ftioad vtritvttm he was not bouad to tiai
*io-like many paria of hi* affirmations would be
bMt cleared by the confronting of tlie panoei
and bis iaforiDer, nbilk was uever yet done.
Neither are tlie chief of the pannd's aSirma-
lions, alledged by luy Lord Advocate, simply
taken, potiiive atHtinations, but with inierpre'
taiiiinii, consiructtons and ylotae', dipping in
menUia of the pannel ; Tu which God is his only
jud^e, and it A an hard matter by prcsum^
cnustrui'ti'ius, to draw the pjuntl lo tlic ques-
tion lit Ills life; ■ N.imuonpre-iuniitiiturdelicta,
' sed pioliuntur.' The pamiCl refers liiniwlf to
his depu'iiiiou, ia tMfii(irNfiu^tui,.undeDied by
the lord (lea, as is cle;ir by the pannrl's former
excepiiuns. Whereas iiiv Lurd Advocate men-
tiuiis the inadni;as «ud foolish imagination of
Knnel ; and so required a oinslant dut
durst not uiiiil, neictier wii h sarely uor duty.
And this is clearly by my lord Ilea's own De-
position ; wiio iidinns the it-lutirg of several
things, in several days and limes, and is msnt-
festly proven by ihe panncl's own depositioDS.
And where my Lord Advocate refuies m d*
pnnnel the exception of clinrily, aiuwering.
That ■ crimen nvn potest purgari bona iaieii-
' lione, ttanseM,' where there is ' crimen siai-
' plei.' But wliere there is ' tantum rrimeu,'
by coDStruclions, periphrases, and gloites,ti>^ra
mentnn, yea, ccalTu menftm of the panoei;
there charity justly may be admitted: for a
good intention, as it will not purge a iiiauit'rK
crime, neither sliould ihe wresting of tlie pan-
nel's4nlenliou inibrce a crime, and so not dcbiir
charity.
Aiid where my Lord Advocate doth orit
against tbe pnnnel's defaming of the noblenie*,
i< is aDswered by llie paond, that the fint au-
thor must be tlie defiimer, and not the reveaier;
the whole matter of tlie pretended dcfauiaiioii,
luring uriginal acts of ilie lord Kea's jnorf ''*■
Jinmrum, upon paiinei, and not acls of ihe
pannel; as It is evident, by ih« paniiel'siwo
deposiiious, the lord Rea'* fint depouliou tb«
473] STATE TRIALS, 7 CkaH.es I. I6$l.— fir CdamiamdtimderMt^Mccha. [474
31u of M>;, wfacre tfaa said lord Rea doih ac-
kBUHlcdKe tbe examiiiatiOD of the paonrl, taken
(lie 30tb of June, to be true in all (loiiiti, lo
fur Us tJte Mine cuiicenit tbe kaaoledee, wordi
aDd acta of (lie laid lord Bea; upon the expka-
naaoni then Ibllowiii);. Bj wliicb csplmiBtions,
and notwiihalanding ihereof, there n labstance
enough ill tbe imDnel'i depouiion, to prore
. ibal the lord Hea, and not Ibe panoel, wai ku-
thur to (be whole matter of the preteaded de-
famation. Aad whereu m; Lord Advocate
vouid in hit rrplj seem to qusatiun the Teibal
relation!, fiowin^ Irom the lord Rea to tbe
panud i to ihis the pannpl oppoacs his own de-
pa«i(ioD, and (he fiist article of my lord Rea'i
fTiagiinni'm ibrmarly cited, wherein tbe lord
Hea ratifies the pannel'i verbal assertions t if
be rati&es tbem, thej must be in reram aalura ;
iflhejbe, (dj Lord Advocnie's assertion is not
lelevaot. And where my Lord .Advocate al-
leeea ihe leavioE furdi of the liird R^a's verbal
rdaliun, out of his represenlBtion in writ, given
into tlie Lord Treasurer; the pinnel repeat*
bii exceptiiMi mode (bereaneiit u belbre. And
to all niy Lord Adfocate'g discourse to that
effect, cuuiuining one side of unper, tbe pannel
oppooei his fini saswar, and his deputitioiii,
tuid the lord Uen's reUtioiu, and biseiamtna-
lioBt agreeing thereto. And whereu my Lord
Advocate wuuld bind the piumel to an>wer for
tbe lord Rea's omissions, becaute the lord He*
is his author; the pannel lieiog sitting behind
Uthe time of die rxpreision, ca<i biuifly find
means to be persuaded that it came from his
loajeaiy's advocate; and opponis and repeacs
ihe poonel's exception herein. And w'lere oij '
Lord Advocate, upnn these words, ye know the
busiiios, und not the time (do or die), says,
that these words aliould have ■ proper iiiicrpre-
lution; which is. says he, l[i be a counsel given
by tbe panoel, for subfenioo of the mnrquis's
huiiour wid estate : the pannel answers thereto,
■ImC he ndherea 10 his exception alieady al-
ready nllrged; and further adde, ihat the lord
Rea snid to the panuel that Sutiduy morning,
(liat ibe lord Scalbrth bad said to the lord Rea,
.tbeir purpose was Co take the king, tbe queen,
aud tbe prioce: and su the infurinatioii bran);
' i^iven lo the pannel, furnished (n tbe panoel
i;reat cause of fear, and his fear the reason of
the eipretsioit ol these words, of advising the
king to prevent bis danger; a) tbe pannel bad
fonDerlyadnsedmyLordTreHsuier of England,
lu advise his majesty toretiit: to Whitehall ftoin
Grecnwicfa, as tu a place of mure safety. And
ibis is clear, by (he pniuMri deposition the SOih
of June, ratified by the lord Hta in ihe first
article of bis eiuuiiiaiion the "iUt of Jdbc.
And wliere my Lord AdTOCB(e alle|;es, tha(
tbe lord Iteu and his majesty's letter frees tlie
iaan]ui« of [InmittQn, and (he other noblemen,
by tlie lord Re.i'if oath : It is amwertd tlierelu
by Ibe pntini-1, tliat tbe pannel d<iCh not cliarie
them ; lie rmly charges the lord Rea as big in-
tmner and anibor, humbly attesting, that in
whit esiesiinl points tbe kud Rea is contmry
to the panoel, be duo the pannel wrung i auil
thereibra the pannel declares, that whensoever
it shall please his majesty to permit (he pannel
and the lord Rea to be confroiited, or if (hen
upon difference, the matter be not cleared of the
pan oel's in nooency I tbe pannel is ready to hazard
his life in a duel, ts the glory of God, and to the
deariiigof tlie truth of this business, lib majesty
commanding the same, with a protestation, (hat
hecarriesnomalice to the said lord Rea. Jfthe
busiuess be not decided bj this, or that if bir
majesty is pleased to admit torture before a
duel-trial, the panoel is ready with him to bear
out tbe torture, and to be (Hed thereby, with
the said lord Uea, and let (he truth then ap-
pear : which if it be not then, wbeoever it shall
please God to call the panoel to bear testi-
mony thereof 'with his blood, if God be not
graciously pleased (o bear him up in it, let
men so conceive : and if God hear him out in
it, then will he be ibuiid meet alter his death,
to liave been an honest man, and his blood
tliall bereauired uf tbe takers ihereof.
My Lord Advocate, before any answer to be
made bjr him (o the pannel's former duply, pro-
duced his msjatty's Letter seni down to
" To our right (rusty, &c. the viscount of
Duplin, oar Cbancellnr; (bcearlof Menteitb,
fmideiit of our privy-council ; and to the
remanent earls, lords, and other of our jirivy-
r^.,.>^;i nf mil. kingdom of Sculland. — 6ic
fribiiur
" C.R, Right lrnsty,&c. we greet you well,
* Whereas we are infurmed of a practice in ap-
' pearance so peniicipus, and nearly concerning
' us, HS n e wuuld not but take gome trial there- '
' ot, both by ourself, nod some of our council,
' appointed by in litir lliiK purpose. Bu(in the
' mean time, .because of some siniilrous ru-
' moars maliciously dispersed thereupon, lo llw
■ pr^udice of our right (rusty and right well-
' beloved cousins and cuunsellur^, ihe marquis
' of Hamilton, and the earls of Haddingion,
' Itoxbuigh, and Buccleugli, aud sonic nihers;
' lest the like reports be brought unto your
' ears, we have thought good hereby to declare,
■ that not only we lAive (buad by the trial we
' ourselves have taken, that they are altogether
' innocent and clear thereof; but likewise that
' the prime informer thereof h:itn now cleared
' ihejii upon oaih, te»(ifying lliein, as we know.
' ibem to be, ils good and Initlifut kubjects, a*
' ue have in any of our kingdoms. And (or
< tbe business ittelf, wlieusoever it sliall be fully
' iried, we will ibereafier express our further
' pleasure cancerning Ollicrs iniereited therein,
' according at we shall find ju»t cause, either
' in puniahieg any person tbnt shall be found
' guilty, ur in punishing any person thai
* shall he i'>und (u bave given false informa-
' (iou. And wimeas we btve Ibrmerly by
' our letters recommended unto you, our righ^
■ trusty and right ivell-bcknred coDiin tbc m^
475] STATETMAl£,-lCHAiiLul. 1631.— The Truitf Jama Lord Vcmrit, [470
■ qttjsof IIniiukoi),ri>rrurtlieriiij{tiiespecdy lev^
' anil traaiporutioD uf hia men vitb all posst
' ble diliKeiice ; theM are Bgain to require yuu
< to contribute tlie best helfi tljat jour nutho-
' riij or eadeai-uurs can affunl fur tlwt eSecL
' Wliercoi^ both out of [he rt^ard we Iihtb U)
< bim, ttnd ti> that emplojmBnt, being vei? con-
< fident of ;i>ur belt care ; wc Ltd joii &i«wclj.
• From our Court, at GrecnvicL, tb« 39tfa of
•June, X631.'
After reading of the which If tier of hit dup
jeBtj, i[ i* •ntnered bj m; Lord Advocate, that
the ur^E of the paiuiel to have the wurdt ' as
' be la iiitomed,' to be repeated in all the rett
of the Dittav, wants all reaaon ; ihe points of
the Dittay. bearing relation of scTcral deedt
done in tevend time*. And whrrs it is aUt^ed
by the panael, ihat these nords, ' as be ttos
' infi>nned,' were true, ' quoad reUtiometn et
< quoad reritatem,' there waa no necesiitj: If
thii were true, tlie Diltav were eluded, fur the
panntl is not accused of a Letuing iu respect
of the veHtj of the matter related, bat in re-
apect of his discrepance from his author, and
that be affirms more than his author, and
with greater certainty than his author: and
that, not content with both these two excesses,
befullowsit out to the verj point of eiecution,
which is evident in the point of certainty, bv
these words spoken to his raojestj, ' the buti-
' ness is known,' nhilk is more certain by the
opposition of the uocertaiaty of time only,
vchich redoubles the certainty of the busiufss.
And in the point ot execution, by that perni-
cious nnd cruel counsel, ' do or die :' the eiTect
of which pernicious counsel, if God in mercy
had not disposed tlie royal heart of our wise and
gracious sorereign, woaldjiove produced more
table effects, nor could be oaencbed ' '
innel. And the
ing of the lord Ilea (whom the panriet
calls the prime author) with himself, in the pro-
gress of hii behaviour, will manifest the paa-
nd's guiltineu of the poiiiti of the I^ttay,
wherein he is accused : for tite lord Bea, fiho
bp^ioved to hnve grater certainty than the
pnuuel, ne%~er proceeded to the points of posi-
tive parly, prioie agent, platters; and to sbt
to the supreme sovereljpi prince, that the busi-
ness was known, in idl which points the pannel
baa involved himself; bat (he lord Rea was
content to reve.il the reports made to him by
David llnmsay, and. Mr. Robert Meldruin, to
the pannel, Hithnut adding or paring. And
when the pannel, upon ilie S'Jd of May, n birh
was the day of the marquis's returning from
Scnthind Iu Englnnd, came to the lord Rea, and
told him, that he bad been with the Lord
I'rcMarer, and acquainted liiia with the pas-
sages, which he had from the lord ^^calorth,
and of llie lord marquis's return, and that he
had concnved, tliot it ni^ht he dan|eToiis at
thiit lime for his inajesly; for tlw which ciuse
the patuiel in his deposition saith, ifaat be did
advitr the kin^ to Temnv« from Oreenwicb In
WhitdiaUorLondou; m^ lurd Ecaan(w«Td,
that the pannel had done «vil therein, Ibr
there was ao such auddenoess to be fearedi
yet notwithatanding hereof, and that hii authnt
had reproved bis roshneas, the pannel weat
thereafter and attended his majetiy at dhmer,
and at the end of dinner spake thne nnrdt of
the certainty of the plot, uncertainty of dw
time, and added ibr countel. Like as the pan-
nel being asked, hereupon granted that be met
wiUi ihe lord Rea upon that Sunday the mat-
rcaine to court, and alto (bat be met with
Lord Treasurer; and counselled hit lat-
jesty's removing from Greenwich to London.
But denies that the lord Rea said, that ht
thought it was evil done. Notwitltsnndkv
hereof, the ^nncl went thereafter and attended
bis majesty at dinner, spaka the iiords and gare
tbe counsel; like as his mnjetly being, lome-
thinp wakened by tbat fearfi4 conntel, leat'fiir
tbe bird Rea, and did acquaint faim, that >«se
present danger aaa soggesied to hii majesty,
upon the marquis's returning. To ibe which
the lord Bea answered by auh, that be knew
nothing against the marquis, fiir anv thing he
knew, hat tliai be was as good a subject as any
his mq est J had.
And where the pannel would labour (o free
hioiself, by denying the connsel given to bun
by the lord Uea; it cannot he a warraDCabla
excate, except he would prove tliat his aatlior
adrised him to do it : which is improleble,.
seeing the lord Rea, his author, neither did it,
nor miowed of its being done by the panutL
And wlier<> it is alltdged bj the pannel, that
he had suKcieiit warrant from his infoitncr, lie
canniit affirm it, as being contrary to the rela-
tion made by his author : which is not a itI-
labia of the marquis as prime ogent, nor of toe
three noblemen as Phittetf. And whateief the
panned did after tlie discovery of the busuiess
to tbe Lord-Treasurrr, which was upon \ie
15th of May; it was tlie pannel's own word,
work and deed, as the giving in of the list, ei-
pressing tbe certainty nf t^e plot, and urging
tbe putting in execution. And where tbe pan-
nel alledges, that all was done upon a good
intention, and that God is only jdd^e of the
mind ; it is (rue where the mind is not re-
venled by speedi or act punishable of the la";
butif either speech or deed be done again*
the law, the pretext of the mind will Devero-
And albeit it be tme, as the pannel nllrdgn,
' QuoddelictsQenprnsBinuntursedprobanlur,
jet it is as true, ' Quod in delictis prteHnninir
' dolus nisi prohatur contrarium.' .And in '''*
case of this Dittay, we h^C'a law prohibitirw
Lensings and Calunules under ihe psin <»
death; and seeing by tlie Dittay, ih*re are
three parricolars Tibelird, which hia mnjoty n
hi> Letler of the data of (he S9th of June, ii»
called lalie informatifiss, and which dire«hf
hii within the cnmpmi of the lame, as nBeenaf
upon tha life, honour and esiaie of ibe noMe-
men; the pannHl's' excuse bj intentinn i» tj"
slender, to fire him from the punishment of "»
law, AndwhereitisaUedgi-dhjihapw"*'
477} STATE TRIALS, 7 Chaclm I. IflSI.— ^
ttnt he bas niuneil hts antbor, and that be nal
; the t\
i relati
knd did Dot
contndict him tliereiii, wliich ihe ponnel nl-
Mges fur awfi^ieDt ground of ii is exoneration ;
the doDtrarj ii true: br tlie lord Re«, in bii
EiamioatioD upon the 9 1st of June, dotb ac-
knoirled^ the panncl't EiBmioacioii-to b« tme
in all pouiit, wvingtba eiplaaations tbereaftn*
(ubjoined. But tnis npprobntion cannot ei-
ceed the sabjcct ; and also the tobject must
be reitrictcd according to the conditions of the
eiptanation ; but so it is, that id the panncC*
examination, which ia approveo by (he lord
Baa; there ii not one rrtlobteof the lord mar-
quit a* paRjr or prime Agent, or of the tbree
Dobtemro m Plotter*.
And therefore that Mia dm witbis the conv
peM of the approbation, and where it may ap-
pear that in ifae jtannd'* exBroinntion npon the
90tK of June, it i» gnmtcd, that on Monday
ibe 16lh of Hay, he delivered to the Lord
*" r the lilt of namei; that i> not a
Hea: but
«f ii« pDnnel'l rriatiun «>prDired by the lord
■ hur. il 14 thn nailQe] 3 nnHWFv (n An inen^
- - ' V
could have oo cespect to tl>e lord Rea's relation.
aked of him
by the coansel, ahi
byhimieir: and ibnt the lord ties
pnTj to the making tliereof, n' ' ' '
Cnscd by the lord Kea himself
tioo the SUt of June, 1631, and last article
ibereoF. Wherein he depones, not only that
be was not acqeaintrd with tlie ll*t of names
delivci^d to the Lord-TreuBum, but ' that he
had nothing to do therein; irhich both eiclodet
the coDGoutse of tbe making of the list, and his
knowledge of the pnrpoie of it. And where it
U altcdged by the pannel that after llie reveal-
ing to the Lord-Treaturer, he could not ab-
Kain from the remanent pawaget of hii beha-
vioor, becaute it wei octut eentinmattu by the
lotd Re« to the paooel, from tbe 10th of Hay
totlieSDtfa of May; it is Boswered, that after
the firtt teienKng, the pannel bad no
do in the necftiiiy of duty, becune hit anthor
ou revealed: and whatever followed after
ifetcovcry made by tbe pannel, wonld have bed
the antborand not the paimd; there being oo
law that might have punished ihe pannerfbr
■biftiiig his dCoiM after tbe reveling. But
there being manijei I haiard and danger ia law,
■a follow further afier the revealing of the bo-
UDesa, whid> the author thought neither clenr
uorcMtain; and the pantiel natbeini consd-
ounpoD wh»tmiad tbe lord Reaiaade his first
ufbniialMMi to him, which might very readily
have baen apoa malecontentmetn, grudging
and BBlice, |ua credolity to him was cmehy
MEMUtthe ttoblnaen. And hiagoii^ ftirwards
wer the levealing, was a tnaairnt eOKOgement
of bwtd^ in tbe nwlice of the author, tiiid
dmra|inMM hinwelf the efinjop' of greater.
And where it is alMged by the pannel, that
bbebaviout caunothe cmuiteA in. the nature
0f lieaaii^ punished by act of pariianeat,
feat aUucHj by waj of iHuien. ud misMr
■/or Calmmit* and ihnderous Spetihet. [47S
construction ; tlie conlrarj is clear, by tlit*
three points of llie Dittn^. And tlie pursuer,
in liis reply, bus most justly challenged the
pannel us a defumer of nobleincit ; because
their tame, honour mid credit was unbliuiieabie
before it was taxeil by the pnnuel ; and the
lord manjuia brought nnder danger of tbe lots
of life, honour and estate.
And where il is pretended by the parrael,
that the cnuse of hia speaking of tliese words to
his majesty, upon the Sunday of the marqois's
coming to court, was because the lord K^a told
the pannel that the l^ird Seaforth hnd assured
him, that the Plot was for taking otF the king
and the queen ; first, that excuse has no wnp>
rant from the lord Rea's depotition ; next, iti
that some conference betwixt tbe pannel aoj
the lard Itea upon the said Sunday, the lord
Rea told him it wtu an idle fear ; and thirdly,
it cannot be n pretext, because that passage of
the taking the king and queen, is contained in
the relation made by the lord Rea upon the
IStfa of May; and so cannot be pretended as
a new information lately come to bis know-
ledge, to waken (be pannel to such a per-
nicious counsel. And tliis shall sudice for an-
swer to the duply, which ia closed wjtli that
wbich is coatain«l in the reply; that the pannel
bad no warrant ofhia speeches aitd proceeding*
positive against tlie marquis ; nor colour of
warrant against the three earls, and neither
warnmt nor colour at all ngainit the earl of .
Boccleugb, agatniit whom tbe pannel, by his
own confession, hod nothing but the guess of
the lord Rea ; which the lonl Rea not the less
refuses, and ^rmi to be d>e nomination of the
EaoQ^. But howsoever it is only a guess, by
is own confessioD, from his author, and yet in
bis list he mnkes him b plotter. And ^b«it the
like evidence of the pannel's calumnies agaiiut
the other two earts being undoubted, as having
uo warrant at all from the lord Rea's reldtiun,
whernn (here is no syllable of these noblemen ;
and that the excuse made by the pannel of*
verbal relation by the lord Rea, has no proba-
bility, and also is contradicted by the lord Ren,
being poised tliereupon : yet in these two no-
blemen the pannel covers himself under the
shadow of a verbal relation, againstthat which
hiinsplfdrew up in writing; but- in the Ion)
Bnccleugli's he is excluded from all verbal re-
lation, in respect of his own deposition, ■
whereby be is mauilestly convinced of iucurriug
the punishment of the acts of parliament where-
upon tbe dittav is formed, as having named him
plotter, when by his own deposition he grantf
It to be a guess of the lord Rea.
It is qutdruplyed by dm pannel, that for
answer to the triply, made by tbe Lord Advo-
cMe his piitmer, lie repeats and oppones bis
deteoces contained in tbe furmer exception and
duply. And further the parMicI adds, that
where it is oMectedbymylorii advocate against
the pantiel, thot he had no ground nor causa
fiom tbe lord Hee's relation, from ibe pannel
by word, to call the two earls of Haddington
andSoihurgh plotters; bu^ hy the contrary,
479] StATETBJAlS.lCHA^Kil. 1631.— The IVvdqfJamei Lord VchHtrie. [4^
Iliac the lord Itei tefu'et and denies the inme ;
ugain tlia tvliich objecnun, ilie pannrl duea
m)KRt und Bdliere tn cliat anicle of his second
depusltion, dated Uie !4tli <if Juix.' In tliese
words foJloiwiiig : he siiith. (he toril ttta did
afBcm t» the exBuninaDi, 'hnc he hiid the tbre-
uJd report, nuent the enrls of Metros and Itux-
hurgh, from the lurd Kenfonh, helore the ijarinel
theu exDinined, made or drlivered this said
paper ot list to ths trensurer. And in t)ie ar-
licle preceding, in the same de|iositiaii, the
pannei albims the lord Ken told him tliis ;
wliereb; it evidently appesra bj (he two articles
joined ci^etlicr, tlixt the pannei had ground
iWthft part of his reprwciitntion.
And whereas it is nSinned bj ipy Lord Ad-
vocate, that tlie lord Rea dciiiea tlie some, tbii>
comparing of (he pamipl's nssenian, and the
wolds of tus lord Ilea's denial toother, tlie lord
Sea's words will be found lo impart no direct
iior cleur denial ; the punuel affirm; that the
lord Reatold liim, tliat the earl of Seafbrch
told hiin, that tbe said two earls were upon the
secrets ufihe business of tbe marquit; m; lord
Bca's words in his denial bearing, that the first
time the lord Senfortb bad any sjirech with him,
toucbinc the said earls of llnddington and Rox-
burgh, Aieir being privy tn, (he particulars aod
lecrels of tbe lom Hnniiliou's business, was on
the Monday after tbe niaiquis's coming out of
Scotland. The pannei atfintis, thnt the lord
Kea told bim tuch a ihin^ ; tbe hird Itea says,
the lord Scafottb spake not to him any such
Matter before such ■ day: Iww do these two
auree or contnidict one another? The pannei
anrms the lurd Reatold him; mylordReaaf-
firms my lord Sesfbnh told him notsuchatbins
before such a day : what ii tbat to the pniinel,
if the lord Seaforth bad neter told that to the
lord lUa, the lord Res might hare told it to the
pannei for all thatP And where it is allsdgedfar
tbe forlilyingof the triply by my lord advocate,
that the lord Rea in hisdepositJon,danieth that
he was acquainted with the list of names, deii-
vcred by the pannei, or had any thing to do
therein; the pannei affirms, that this eludes not
tlla particular words concerning the two earb;
because of the denial of the general list, wliere-
in they were inirosscd ; for tiie manner of tbe
discovery was left to the pannei, nlien the
direction of the discovery wasgiven him. And
so it was nnt needful that tbe lord Rea sliould
be acquainted with the papers, witli tbe pen, tbe
ink, tbe hour and the manner of the writing;
because that was left lo the pannei. Neither
can the g«ieml denial of one piece of paper
taikeBway tbe pannel's teitiinony of the certain,
deieitnined, condescended upon by wyrd. And
fur bis word that he bad no hand tbereJD, ia not
nwant dc vuueria, affirmed by the pannei, re-
ported to him againu the said two auHi; be-
cause he granit the lubctance in tbe preceding
deposition made by liim thereaneiit. And as
to tbal relation by tliat list, concernine tbe e«ri
of Buccleugb at plotter, for defeooe of the pan-
jid'* deposition it is produced in cbe«e words,
Iwarioj, ' Andfurtheriaitb(to.wittb*paiinel),
' that the lord Rea had told him, he could not
' gueiiS who niiO should be in ihi: plot unlfss it
< 'veretht lord Bucclenjtli; of whom thelordKtB
' said, iie titHrd him speali terrible words ngainit
<,tIieliiQg, Htlii'iown tableinH'dtand.' There
it is nlhriDed, that he suspected tlie lord Biic-
tdeugh to be upon the plot: if suspected tn lie
OD tbe plot by Uie lord R«a, and told by bin
10 tlie punnd; the pnnnel was necessitated to
reveal the same, yea in iiuUm termina. to re-
veal biui to be a plotter ; whom he said, be
lected to be upon tlie plot. To thii my
e objected, mi lord Ilea's dmisi,
these words; That tbe pannei and
lord Ilea having same spei ch together, who
might be looked for in Scotland to take arms;
the pannei, and not the lord Rea, named the
lord Ruccleugh. Whereupon tbe lord Rea
told, that at the siege of tbe Busse, the lord
Rea heard the lord Boccleugh use some words,
whereby the lord Hea took ihe bird nuccleufh
to have come maJecontout out of England. In
this presumed denial, there is coniiiincd a tlis-
course betwixt (he pannei and the Inrd Rei, >l
the lord Rea ailedges. And in this diicaune,
thnt the pannei shonld have named (he Intd
Buccleugh, and not the lord Rra; this namiUK.
is a naming in tlif retpect of time firat or \vA ;
for the lord Ilea grants tlrnt be did name the
lord Buccleugh, because of (he last words of
that clause ; so tbat his denial respects oaly
priority aflimc, hut no xeyslUe pnnrnfl's asser-
tion : for not a word of hii assertion i) denied.
But by tbe contrary, for carroborstinn of tbe
pmioers just ground, concerning the earl of
Buccleugh; the k'rd Uea mokea addition of
more nor the pannei bad n^menibrance of;
and so fortifies his affirmation, and proves no
denial .thereof.
The pannei adds further, for eluding of the
mittakingof theschiswerdi, ■ Sir, neknawtbe
' business, but not (be time, (herefore do or
' die.' It ia a£nned by tbe lord Hta, that lie
did bear of his majestv that there was a danger
■nggested tn him ; which dani^er my lord ad-
vocate alledges to have come from tlie pantip)')
words. If a danger but by the king's self ap-
prehended, then not a perMcution, for a danger
imports defensive reroedics, aiid not violent
and malicious atiempit ; yen, it imports ind
implies a prerentiBg, and not ■ praseculing.
And laaity, it clearly canlirms the mentioned
ioteniion of the pannel's ciprenjng of tboM
words, which was to prevent his mejesty'i dan-
ger. This the pannel's alletlgeance, is cleared
111 the lord Rea's deposition, made the Silt of
Juni ; yea, this is my lord Ren'a tvfaaion, to
whom the pannei never spake, since tbe pan-
nei end he entered to their trial. As for the
worda, ' Sir, we know the basineM hilirlliblf,
' this is no lie ;' because (he- pannei and IH
lord Rea was at bis majesty's ten days before,
and affirmed the same: the pannei by niaiiea
fimn (be Jord Ren, and the lord Kea froia
others, ' and ao^ tbat is no lie.' And that the
pannei did not know the time, it is aliedged in
(he contrary, ergo, am, n* lie. At foi' tb*
4S1] STATE TRIALS, 7CbailesI. \6SU-^»Calmmiaanddanderous^echa.l4S'i
wnnb ' di) or die,' by my lord adTOcile'i dc-
cltmtiiin, i[ is but ' cuacilifim perniciotum,'
And that it u not ' meiMlacimo, neitlier can
it be made nor interpreled ' meaitaciuiD,* by
■nj probability or sense, mid no maticioiit
council, as Is uitedged i^aiDSt tbe pannel ; con-
udeniii; ilie pnanel's declared intent, and llie
lord Kcb's before- m etui n a ed eiamiiialioD,
wherciu it ii called a danger, < so Qfjt a lie,'
and tliercfore nut rigbily subsumed.
Mj Lord. Advocate repeats his firnner re-
plies and triples, and desires my I^rd Justice
to close this pmce^ lo tbat there be no tur-
thcr dispensation or reasoning herein, till aocnt
tbe ri'tevance or irrelerance ol' the indicUiient.
The Justice by Iiiterlni|iiitur declare* the pro-
cess Co be closed; nod continues Intei^iiquitor
ypgn the alledgenuces proponed by ibe pannel
against the ditlay. nnd answers made thereto
by bis raajesty's advocate, to Wednesday next,
the aereatb of December instant ; the persons
of awiie warned npud acfa, to compear the
Mid day in Che hour of cauie, ilk person under
the pain of 1,000 marks. And ordnined the
panuel to be retamed to ward, therein to re'
main in the mean time: wbereupoQ ntj Lord
Advocate asked insirumenii.
Curia Justiciaria S. D. N. Regis tent' in prstn-
rio bun;i de Edinburgh, sepiimo die mensis
Dccembris, anno Dora, millesiioo, sexceii-
tesimo, tDEesimo priino, per honorabiles et
discretos viras, magistroi Aleiandrum Col-
Tifle d« Blair, t-t Jncnbimi Roberlouu Atlvo-
catura, JusCiciariDS dcputitiis nubilis et po-
tencis coinitis Williclmi comitis de Scra-
thmw et Menteitli, doin. Graham, Kilbryde,
et Kynpont, et Pr^esidis secret! Conciliu et
JnsticUrii geoeralis diet. S, D. N. Kegif to-
tius regni sui Scoti«, uhililtet conscitut.
Mccisvocalis et Curia legicimeaffinuata.
Intran-
Janes lord Ucliiicrie, delated of the crimes
foresaid, mi'ntionefl in his indictment,
I'ursuer.— Sir Thomas Hope of Craighall,
tnight and baronet ; his mnjesty's advocate fur
bis highness'a enlries.
I'mtocoiors in Defence. — M r. Robert N«i me,
Ur. Aleiaudei Pierson, Gilbert Neilson, Ad-
Tbe lord Uchiltrie being entered upon panne!,
tiroduced to my Lord Justice, an Act of the
ords of his mnjeiiy's secret Council, for con-
linuaiion of this Diet, and of nil furlber tfial
or proceediig i^inst him, for the crimes con-
tnined in his Ditlay, tn tlie first day of Febru-
ary next to come; of the whilk act of council
the tenor follows i ' Apud Halyrudhouse ickio
' die mensis Decembris, anno Oom. millesimo,
' seiceoiesiuio, tricesimo primo. The Lords
* »t the secret Connci!, fur some special causes
' Mid cnnsideraCiong, ordains nnd commnoils his
'mnjesiy's justice, justice-clerk and their de-
* pucies, to continue all farther Trial and pro-
< ceedtOE aeairm James lord Uchiltrie, upon the
' crimes whereof he has been accused before
'tbeni, till ch* IK day of February Beit.
VftL. If[.
' W'herenncnt ibe extract of diis net shall he
' unCp them a warrant, extractum de lihris ae-
' torum secreci cunsilii S. D. N. Begs, per me
' Jacobum Pryrorose clericum eju«ileni, suh
' meis signo et subitcriptione inaoualihuii, >ic
' subscriliittir Jacobus Prymrose.' According
Co the which Act of Council, warrant nnd com-
mand aforesiiid, therein contained, the Justice
coniiuuesall further trial nnd proceeding eguinst
the sail) James lord Uchiltrie, upon Che iriinet
ufureinid, unto the said 1st day uf February
ncit to come ; and ordained him to be taken
back attain 10 his ward, therein to remain in
siiTe firmance, till the suid day. The whole
persons of assiie, called upon by tlieir names,
are of new warned, tpad ucfn, lo compear be-
fore his majesty's justice, the said IsC day of
February next to come, in the hour of cause;
ilk person uoder the pain of 1,000 mnr'i^s.
Whereupon my Lard Advocate asked insCni- .
EitracCiim de libris nclortim niijoumalis S. D.
N. Regis, per me Jnbannem Bnnoatyne,
Clericum (irputatum h^norahilis liri, dom.
Georgii Elphingsiun de BIychiiiwood, miiicis,
Clerici Jusiiciarii princlpulis dicti S. D. N.
Regis, et dictorum Cunarum, Testan. bis
meo signo et snbscripcione inanualibus. Sic
snbscribitur, Jouanhis Bankattne CI^
ricus deputatus Clerici Justiciaria: Gcnerali*
S. D. N. Regis, Teitao. bis meis signo et sub-
scription e.
The lord Uchilirie, appearing on the said 1st
of February, was sentenced to perpetual Lnprl-
• " The lord Uchiltrie, a man of a subtil
spirit and gnod parts, had not those end uwmrnts
of hi« mind been stained with some ill quali-
ties : bis malice against the marquis of Hamil-
ton was' hereditary, he being the son of capt.
James Stennrt, who in king James's minority,
when tlie liiiniiltuns were grnundlessly and la
a mock parliament aCCainted, carrird the title
of earl of Arrau, and possessed iheir forCuoes."
Burnet's Memoirs of tite dukes of Hamilton,
p. 11, and 19. where lie rdates the whole bu>.
siness; and p. 19, say?, " This was a calnmiiy,
than which hell coulil not ha>c fciip:d a f luler,
for lord Uchilirie judged th^C this would infal-
libly liave produced one of two effects, eitlier
raised such a jealousy in the king's thoughts,
as to have quite ruined the marqoi', since few
ministers are proof against such whispers, or at
letiit it would have stopped his voyage for ■
while, till he was tried, and the smnlle-t delay
in that would ha>'escatierrd his soldiers, (whicli
the king was to send under the marquis's com*
mand, to assist the king of S*edeo to recover
the Palatinate) so that this design failing, tii
which his honour, was now so far engaged, a
stain should lie on him ibrougli ull Europe.
Lord Weston carried ihis stoiy Co the king,
whetlicr provoked to it out of haired lo tlia
marquis, or moved from bis zeal and doty to
the king, shall not be deteraiintd ; tbough the
4S3] STATE TRIALS, 7 Chablei I. lGSl.—Pnceedmffvtll»Com<^amialis,i1H
Ust WM pr«teDded hj liim, in many of hb lel-
twns aaj tlie pn^ms of tlii* affair, loo eitctly
loRive nn; credit to (his rrirgerr" And p. 13.
** But thi; iDarquis was not able to li« under
such terrible imputation*, wherefore he pressed
thai Uchilirie miubt he put lo it, to pmvc nhst
he had ulledjreir : but all Ke offered n|!iii(iBt
Rfinuaj wa» only a presumpiion, ivliich Rnm-
S3]r denied, and ^en affirmed ; so tliat Chej
were hoTh put under bail, niid nothing appeared
that did t'luch the marqiiii; for though Aam-
■ay hnil been as guilty ns the loril Rcb called
biui, thai left no iuiputntion on liitn, tince none
can be made answerable for those they era-
ptoy, unlesa it aiipear that tliey followed tbe
inatrucrions given them. So the marquis wai
dispntcbed to Gerninny. Lord Uchiltrie hnd
charged the mnrijuis with Treuson, and fiuling
lo tocnilr in his probation, »as sent down to
Scotland to be tried, where he bad a legal and
Iree trial for his falie charge befure the JoKice-
General, and such aneslorf u were tppoiated
to sit with bnD, by the priTy-council ; and had
the marquis repaid him in his own coin, ba
could nut have escaped capital pantahmtnt
But he was satislied with hii own jnitificstian,
aad such ■ censure put on the calumnialor,
as might deter other* from the like attempt).
Wherefore he was coinlemned to perpetual im-
priioiiiuent in Blacknc» Cattle, and be conti-
nued iliere for '"en^ yean." — He was rdoas-
ed by Cromwell. Tbe sereiity of the Sentence
ngainjt lord Uchi'trie seems to have drterred
tiie earlof Rotbej Front maintaining tbe cht>|e
which he advanced agaiiiit the Lord Register of
faljely repotting the votes of the Scots p*riia>
ment in 1G3S, respecting the confinnatiin of
the ttntutrs concerning religion, as then pi«-
fesaed, and the grant to king Charles the lit of
the power to regulate ecclesinsiical habits. Set
3 Laiii^'s Hist, of Scotland, 105, KM, and thi
aathorities there referred to.
140. Pioceedines in the Court of Chivalry,* oa an Appeal of High-
Treason : %y Donald Lord Rea, against Mr. David Ram-
sey, 7 Charles I. a. d. 163!. [Sanderson's Charles the Firs^
164. 2 Rushw. Coll. 62, 106, 112, 142.]
Dakesi>fHBn>iltai),p.ll.taU. Tkahislwp,
[" The fullowiag Case is en instance of award-
iD<; a Trial hy Duel in the Court of Cliivakj,
thiiugli afterwards the c|iie] whs prevented.
I'here are two accounts of it, which we shall
snhtnit to our readers. One is from " San-
. derson's History of the Life and Reign of
Chnrles the First;" the other from " Kiuh-
woitb's Historical Coliectious.'^ Biihnp Bui
net rtrlatet tbe bi^tuty of the accusatioo i
his " Lives cf the Dukes of liumilton," prir
cipally with a view tojdttify ile fint duWe
or Hamilton, nliose name was inrolvLd in
the aSair. See Burnet's Memoirs of the
tried befureibeUonitahle or Marshal hycoiubsi
nsbymviy recoids appearetb." lard Coke'
3d Inst. c. !, p. 3S. See mote conceruiog this
e. IT.
Coi.r
n 4th Ii
" The Cijuri of Cbivniry, of which we' also
forineriy spoke as a inilitiiry cnurt, or coo
bonour, when held befiire the e.irl nmr^hul '
is alsu a criminal court, when held befure the
lord high constable of Engl and Jointly >tith the
eari marshal. Aiul then it luu jurisdiction ovei
pleas of life an<I member, arisiug in matters uf
armsanddeeds'ofwar, us well out of the realm
as within it. But tlie criminal, as well as civil
part of its aothotity, is fallen into eulire diitise ;
there having been no permanent liigh constable
of Eugland (but only pro hac vice at coronations
and the like) since the attainder and execution
of Slalfurd duke of Buckingham in the IStliyear
of Henry 8 ; the autlmrity and charge, both in i
. war and peace, being deemed too ompk fut A '
it is observable, chafes Sanderson with giv-
ing ayoumal of the (irocedarc on lord Hn'i
appe^, in order u impeach tha dakeof Hi-
milloii'* loyattv. I>> Rusfaworth there ii a
Letter from Charles the 6rst to the duke of
Hamition, which explains vhat was done in
tbe Court of Chivalry, and smnlj iKOTe«,tk«l
tbe king was quite satisfied oi the duke's Id-
nocepce. This Latter forms a part of Bash-
worth's relation. As to the account in Ac
Aanals of James and Cbiirles the fint, it ii
merely a copy of Sandenoo, with the Kddi-
mple, that wlien the chief jqstici
&r tliey eiiended, he declined answering; i
said, the deciaion of that question belooKed to
thclr.wofaruu,aiid not to the law of EuiuDd."
Bl. Comm. b. iv. c. 19.^4.
" The fiirai and mannerofwaginghattei upon
appeals are much the lame at upoaaHritof
nght; only tbe oalbs of the two combntanu
are vastly mure Striking and solemn. The sp~
E elite, when appealed of felony,, pleads Not
iuilty, and throws down Ids glove, and declares
he willdetend ibesame by hishody> the ^.
peikiit takes up the glove, and replies that M
IS ready ti> male good ihe appeal, body for bod^.
AniS thereupon the Rppellpe, taking the book m
his right band, and in bis left the riglit hand ot
iiis nntagunisi, swears to this effect. ' Hoc aadi.
' homo, quern per manum teneo,* &c. ' Heit.
this, O man, whom I hold by the hand, win
"■ ■ ' by the name of biptiim,
self Thoiuas by the aum
<- fdooioosly luuKJet tby.
1 taj •«;.
WS] STATE TRIALS, 7 CHtnLEs L
tiou c^ tbe icing's Letter from Rushyrorth."
Harpmre.] -
When fHenda fall out their faults nre found,
m> appears by (he qauriel between Daniiold
lord Rea, b Scutitli higlilimder, or ruther iB'>re
northward of the isles Orkney, and on« Daiid
Ilaiasej, ■ true Scot ciioriier, roncerniu|; words
and designs of irenson agninit the kitii- mid
kingdom, which btcauw Hnm^y deiiiecl, thej
■re admitted the Trial by Combale, the manner
being as fullovTEih.
Thedayprefiitfortrislwnslhe 88lliofNov.
M31, before Rohert cArl of Liiidiey, lord high-
ITio,
, tl<e
' gniltj of the said felony. S<i lielp me Gud,
' oiiii tbe sainiB ; and this I viil defend agiiingt
• thee by mj body, as this court shall award.'
To which tbe appellnnt replies, holding tlie
bibla and his antagonist's hand in the snine
Manner as the other; ' Hear Ibis, 0 man whom
< 1 bold bj the hand, who callest rhyself Tho-
' mu by' Uie name of baptism, that thuu nrt
' liam bj oame. So help me God niid tbe
' lainti; and this I i4kU prove aganuc thee by
* aj body, as this court sbail aivanj.' The bat-
tel M then to be fought willi the same nenpont,
TB. batons, tha same solemnity, and the same
(Mth against amulets und borcery, that are useij
in tbe ciiil combat: and if the appellee be so
Ar vanquished, that he cnnoot or will not 6)>ht
*ny longer, be shall be adjudged to be hauE«(l
inuoedintely; and then, as well as if he be killed
in battel, proridence is deemed to have deter-
mined in lavour of tbe truth, and his blood shall
be atuinced. But if he kilU tlie appellant, or
c»n tnaintatD the figlit fram sunri>iiig till tbe
■tars appear in the evening, he shall be acquit-
ted. So also if the uppellont becomes recreant,
and pruniiuitccs the horrible word rif cravtn, he
shall lose liis liieram Irgrm, and become infa-
tnaiis ; and the appellee shall recover hl< da-
mages, and also be ibreverqiiir, nntonlyof the
appeul, but of all indictiuents likewise for the
lame oGTence." Bl. Comm. b. iv. c. i7. § 3.
In Co. Lilt. lib. !, c. 3. sect. 103, a case is
raeiiti'ined which went off by reasnn of wlint
seems to have been a denial of justice. Lord
Coke's words are, ' Regioa ooluit constituere
* Const nliuhiHum Anglis, &c. ei ideil donnivit
' Appellum.* See too sect. 153. 743.
Concerning the Constnble aud Marshal, see
alio Mfdox's Hisi. of the Exchequer, ST. Dr.
Oldis V. Doninitle, Shower's Pari. Ca*. .^.
Some nirious mailer concerning Duets, and
the CourU of ibe Constable, Marshal and Hlnh
Stewonl, are to he found iu tlic Bodleian Li-
brary in Oifurd, Tunner** MSS. Nos. 14, 84,
85, 8S, 103, 176, ^78. and a tre.-ilise in MS.
by Sir John Burgh in the Ubrory of ibe Inner
1031 agaitai Mr. i>avii Ramtey. [4Sjj
earl of Pembruke, lord chamberlain ofthe kings
botubold, the earl of Dorset, chamberlain to
the queen's boushold, the carl of Carlisle, earl
of Mulgmvr, earl of Morton, viscount Wimble-
ton, viscount Weutwurtb, viscount Falkland,
sir Henry Vnoe.
The place »as the Painted Chamber at
WrstmiusieT; at ibe upper end thereof a bench
WHS erected four fret high fiir tlie moslable,
andmarsbiil, and lords asbistaiits. Under them
ienis abnut a squnre tuble, filled with the
litralds ofarms, and serieants »turms, and other
olficers ofthe court. Directly under ihe upper
bench sale the re^iyer doctor Deihick, aud
over agHiDst him diictor Duck the king's adro-
cate for the niaishals court. Behind him at
the bar were the two pens for tbe appellant and
defeadaoi.
At eight a clock comes the earl maislial
(u»hered in wiih nine heralds, and ihree sef-
Jeaiits uc nrms) tearing bis marshal truncheon
of gold, tipped with bhick, and commending
room, und giving orders, retired into ihe U|)per
bouse of parliament, and then returned into
tbe court, as lo make way for the high consta-
ble, who followed, and all took place in their
Ihe eni4 marshal rises', makes obedience to
the coiistaUle, and passing fosward meets air
William Seager king of heralds, and both of
them present to the constable his commission,
which he received with his hat off: and deliver-
ed it to the register (o rende, in effect,
* Thnt his majesty being informed by Donnnid
' lordUeyghnw David Ramsey esq. had pliitied,
' aud was priv^ unto diveis Treasons and Con-
* spiracies against his royal person, governineiit,
' and kin|d<inu. In iIh! search whereof tha
' king had used oil Wdys and means for the di*-
' covery ofthe tri:th : theoneofibemaccu^ung,
' the other denying, mid so 'OO certain security i
< to bis iiwn person mid bit subjects : therefore
' he doth authorize the said Hobert Barlie earl
' of Liiiilsey lord high constable, fur to call unto
' him Thonins earl of Arundel earl marshal,
< and with him such other peers, sheriffsj and
' olBcers, as he thinks fit, to hold a mBrshal'*
' court, for siftiog tlie truth between tbe said
' parties, &c.'
Then the king of heralds delivers to the con-
stable, his silver verge or slatT, half a yard in
length, beaded wiih a crown o^ gold. Then
the earl marshal delivered a hey to a herald, to
fetch in the Apprllont ushered 1,-1 by the herald,
and BccompaLiied Hith bis sureties, sir Fierco
Crosby, sir Walter Crosby, sir William Forbiez,
sir Rolen Gordon, and sir WiUlam Evers. He
was apparelled tn black velvet trimmed with
silver liutions, his sword in a silver imhroidered
belt, in his order of a Scntish baronet, about
his neck, and so with reverence entered into
his pew. liis council doctor Reeves standing
by. His behaviour (lilie bimsell', tall, swarthy,
mnck.'but comely) very pori-hke and of staid
487] STATE TRIALS, 7 CH4»tM 1. IflSl— /•ro«eJ«p m the Court <f CkwOry,
borough and lord Abercom: and hit deport
lite himself, item nnd brave, a fair, ruddy,
yellow-headed bush of bair, (»o lafRe, and 111
thoid dftys uniisuBl, that he wa9 cidlfd Rani-
sej Kedliead). His ajipare! scarlel, over-laced
with silver, the ground batdly discenitd, and
lintd with sky-coloured plush, but onarmert,
without H sword. Afcerhis reverence to the
court, he laced the Appellant, who alike ttcmed
""" -TIB nee at him.
After O yet '. the earl Marthal told ihero the
effect of the commisiinn, and tlic power of ' *
which T
t of a
biit l^al and justifiable asaiiy uther trial ...
WestmiDiter-halli and that there had been no
more nor other trials of this kind of late, we
'tere to aitribute it to Giida enodiies^, the jus-
tice of the king, and loyalty of the ful.ject, with
the providence of slate, and wished there mij;lit
be no more in time to come ; and thnt to ex-
pect any combuie, this court he hoped would
preteiit it by the discovery of the light, and so
' magna est veritas, et prievalebii.'
He referred the further proceedings niito Dr.
Duck, the kioii'i Advocate, who spake thus in
tffccti
That the biogs majesty had committed tlie
trial of tile business lu your grace my lord high
constable, the earl inBralml, auU this court,
which course was warrantable by the laws of
otiier nations, aod also by our own, who have
used the sainc manuer of trial.— That our Ian-
admitted sundry proofs for Treason, which in
other matters it did not : that nil Ru^ecls were
bound to discover treasons : and cited two an-
cient ciriliany, Hierouyrous and Tiberius, who
eve their reasons for ihis kinde of trial. And
mentioned sunt) ry reoords of our own chro-
nicles Bod eiam|jles herein, as the diike of
Norfolk combating against the duke of Hart-
ford in Henry 4, his time ; Jo. Ely and William
Scroop Bitaiust Ballamon at Burdeaux, the king
being there; tlie lord ftlorley impeached
Mount^ue earl of Salisbury ; and (hat Thomas
nf Wiilsinglinm and Thomas of Woodstock iu
their leamtKl writings, eipreued sundry prece-
dents foribij manner of proceeding; wishini;
■ he court ii) Gods name to go on to the trial,
and the Appellant to gite in his evidence.
'Ui»D the Appellant cn&ieu|) upon tin; table,
to whom the tarl indrshal delivtied tlie peti-
tion, which he had titeday befofe.^xhibited ro
tho Li.14;. Aiid this Defendant being also
■:.,!led u;i, the petitii>n was read, which was in
effect, 'Ihiit he Imving aicused Kamsey of trea-
Min, and also Meldrani liis kinsman, nud of
cuutedtracv, against whnm captain Nothwiuk
was iriiness, tliererore bkd desired, that the
court uauld proceed against Meldram first
But he wast dd by the rourt,ihat their cases
differiii!:, the Appellant v:i-, ordered to deliver
in lib Charge ai.'« in '•t the DetenJaiit, which he
iiid, ill Bfiting iy bill, containing suiulry par-
'lliat in May last in the Low-Cnuntric?,
Knouey coiupl-vined tu liini tigainst tlic ciiitc of
£>ftl;iud. Ibiit the matleis of church and
state was so out of frame as must tend to a
change, if not dpsulaiion. 'ITiiit therefore be
had abaniloiied the kingdom, to livf where now
be was, and cu expect a mutuliou tonhHith, to
which end be had brouj^t present monies ta
mniiit.tin him at S/. a day for three years. That
mnrquci^ Hamilton bad a great army promised
to liitD, for pay whereof the king had pveii in
hand lO.OOOJ., and all the wine cuuomet in
Scotland for 10 years, presently to be suld far
the srtnies subsistence. And that he staid for
animuniiiun and po»'der to come over, foe
which his lordship was to niediaie with hii
iDojesty of Sweden and the slates, and then
link themselves together, of whose minde Key
shniilil know hereafter.
Thnt their friends in Scotland Lad cotten
therefore arms and powder out of England, and
that what he should procure in Holland nas to
be brought over by the marquest ; and thai all
Scotland were sure to I hem except three. Tlot
France and Spain thirsted for England, but
Hamilton nould defeat them for hitn&elf. lib
anely tear was uf Denmark, where he meant to
land, and either to take liini olT, or make a
party. TliaC aftf rwards at Anisterdnm, Ksia-
sey with Alexander Hamilton solicited lum the
Inrd lUy tu be true to ihem, and to beof their
council, though as yet they durst not revcHl too
much of Hamilton s secreis, but if he lefuired
to England, he would inTusi hiui with telun;
auil that hit brother in law Sea-port knew all.
Thia being the effea of tlie chaite. He
added.
That if Ramsey t*ould«leny it, he nes a Til-
tain and atraitour, nhich he would make good,
And therewith cast him his glove.
Ramsey denied all, and said, Rey wasalisr,
a biirbarous villain, and threw down hit gluva,
Eroiesting, to gar him dy for it, if be had laid
ioi in place for that purpose.
Rey was temperate, without any pnsuon, but
smiling, replied, Mr. Ramsey, we' will not con-
tend here. Answer to my bill.
Tlien Ramsey offered aoiii« reasons of the im-
possibility of the Charjic, the slender numhm
of men from England, but 6,000 raw souldieis,
against tliree kingdoms, whom tlie first prucla-
maiion might diisipute. That the mBrqi.esi
• as neither so wicked, nor weak injudKOieni:
and if he should conceit to surprire the kinri
what hope bad he against hit children and
kindred ? And therefore, said lir, my lout Itef
is a barbarous villain, and a liar, and he will
gar him dy for it, or lose his dearest bloud.
He ivai interrupted by the Earl M.ir^ha)>
telling him, he muit not siaiid upon conjec-
tures, but answer the hill of form acconting to
law, and was advised to take counsel thftein.
Then Itumsey in general ncknowledeed all
the particular circum!4ances of tune aiid place
illeged bv Rey, and the discou ' "' " -""■■
d tiv Itey, a
inofuded, th
d, and craved counsel t<
Ai.ii so (he court adjoumrd to the 5lh of De-
em be r^ but upon a fntli aitcst by the Earl
,Goo;;lc
tS9] bTATE TRIAIS, 7 Chables I,
Hanhal the; nere to put in bail Tor appear-
ance, which were tbe old security; and Raoi-
•ej ordered tn answer upon oath. At which
da/ appearing, tbe Taoie of the cause broiighi
thither such a crund of peopJe us was not ioia-
Rev entered as before in manner and hatjic ;
but Kamicy was new suited in black satten,
and presented his Answer ia nriting to tliis
effect;
TliBt baviiiK well considered the time, place,
and cuinniiinicBtion with tbe lard Hey beyond
the seas, (as before urged) l)e confesses;
Hiat Rey demanded of him, whetber the mar-
quess Haniilion intended to come overntid ful-
low tlie wars ? lie said, ye? ; and told him of
his forces 8,000 men, and of tbe 10,000/. in
money, and Winc-Custoiors in Scodaiid, which
he would sell to niaintaiu the army, and lliat he
would come so provided with nmninni.' ion, that
being joined wiili his friends he valued no ene-
my. Upon which Rey replied, that bis own
iwo re^jinients sboidd wnit upon him : l>ui the
place uf theie forces to iqeet was nt sea, and
there to receive directions from the king of
Swede, where to it-ndexvouz. Upon nhicb
lley SHid, that his life and fortunes should wuii
on the uuirqoeu ; who heiug told of his friend-
•hip, wrote a letter to iley, which Ramsay da-
livered, in efTect, Lliat R-y wr)uld get some ain-
niuaitioll from the king uf Swede, which was
wanting. .And that, speaking in general of
tnatien amiss in F.nglanil, lley answered, God
nmend all. Tu wbom Ramsey replied, by God,
Donunld, wc ihusl help him to ameml all. And
to all the other mottKrsand things he utterly de-
nies, and craves revenge upon Key's penou by
dint of sword.
Then doctor Eden of council Ibr Ramsey
spake to tbe court, that bein; assigned bis
council, his opinion was, that the defendnut
might decline the combate, and reply to tbe
ap)icllaiit's bill in brief, wi[h these reasons :
First, thHt by the words in tbe hill, no miin can
be charged a traiior by one that is guilty in his
own particular, and su is not tied lo he defend-
ant, nor to answer such a bill. Secondly, the
incertainty and doubtfulness of the words m the
cliarge ; so thattill the courtdoth censure them
to be ireasonaMe, the defendant is not tied tu
answer. Thirdly, the Appellant refers tbe
combate till ttie last, if he cannot in the mean
time prove the charge by any other ways ; then
he offers to make it good by bit body. So
then, tiie defendant mny forbear hit answer,
•ud dechnethe coinbuie.
And nuw my lords (said he) I humbly shall
acquaint you with tlie Defendants answer to
me in priruie, which was. That though in l:tw
be mi^bt, yet hi honour and innocency he would
not, dtrdiiie the comhate. but beine his own
consent, liis adiocale hatb the less to say fur
him. And so time was given for Rey's reuli-
caiion till Friday after.
R^y's cqqnpcl imjved, whereas Dr. Edrn had
«Ci pied nt s-ime words in the Chnr^e. lie an-
ewered, ttiaf irhoerer was accused of triason.
1631. — agaijut Mr. David Amugr- [490
«as opt to insist, how polluted the answer waf,
but bow to approve and clear himself: then to
refer the uoiubate to tbe last, was well dnne,
altimum reftigiuin, to eipose bis life, for God,
the king and bis country.
Ibis tpeech being somewhat peremptory,
and dirEclory lo the court, he was told, Tbut
the court needed not his direction, as to iba
Tryall of Combate, their wisdiims would consi*
dei' uf that when it ivas time; and so the couit
adjourned, both parties being admitted to have .
common lawyers; but to plead onely by civi-
Tliis day come, Rey appears as before; but
Ramsey in a new suit, of ash-cplour cloth,
opened with scarlet colour, the cloke scarlet
cliith, lined with iish-colnurei) relret, end the
whole suit and cloke okerlaid with silver and
ifcy-colonrcd lace.
The formtr proceedings were read by th«
register; and iliereiipon the Ap|>ellnntii Repli-
cation presented to the high constable: in ef-
fect, That Ramsey in his Answer had cunning-
ly slipt oier a part of the (. hai^e, wliicli was,
that llie lord Rey pruie»ted, lie was not inga^ed
in wars, for want of $ubsjsieui-e, and iheiefore
would not iinzard in any deaigne, without Mire
knowledge, upon wliirh words, depends much
of the muiier iind main of that part of tbe hill.
And so ripping up the leteral cliarges of the
bill, tlie slrengib, reasons, and likehhood, and
the defendant's delects iu not cleuriiig th«
chief iipinti, they went on wiih the CAuncel.
It was his [Win to inforce \be Charge against
Ramsey tn this effect :
He observed, that the first day, Ramsey de-
nied nil tlic charge, wliilcst he stood upon po-
sitive resolutinn, hut nltentnrds bis cuuucel
brought him lo particulun, and taught him to
answer superficially ; fii'it he knew nothing,
and yet now so much. No doubt theie wus
some stranger enterpriieby (he inarqucsie Ha-
milton, ibco to serve the king uf bwede, by
Ramsey's professing th»l lI:iuiillon was a pro-
lestant, and bore arms for religion, not caring
with whom to grapple ; from lenLC ubierviiig,
(baC tbey intended somewlint lo aitempt of
themselves. Ramsey stiled tlie marquesie hii
master in discourse, and in many of his lettera
produced, much of the discovery by Key was
to fish out of Ramsey tlie truth of his doubtful
words; how unlikely it was that Rey having
two regiments of old souidiers, captain of the
kint! of Swedes dragoons in tood pay for all,
shunid offer to serie U^iutlton who was to b«
commanded by the king.
And that Ramsey might decline the com-
bate, or forbear answering till the last, was a
strange opinion of council; because, cumbalc
was to be reserved till all oilier means of dis-
coTtry fayled, and therefore Rey his reason*
were supptimenlal proolii ; atid reqiii-stiag
Meldram's teslitnony ; Imt htnveverhe wa! now
ready, if the court thinks hi, tu give tlie coin-
bni« presently.
And concluded whb an example in case of
inurtber. Two men fij^ht in »ecret, the one is
491] CTAlCTlUAtS.TCHAtictsI. }9il.—Proeeeiiii^t>itt>fCdiAqft!iiBaby.im
together, af the wonb, which
dain, tlra other Din, and though without any
WitrmK ofihe fact, his teeLing to acape cod-
dtmna him guilty. So Rnmsiej haTJng been
accused of treason above three moueths bj the
loril Rej, and bolb contlned, Ramsay dispair-
ing of hii cause, seeks his fliglit from justice
bj seiKling to Rej a prirote chanenger, being
It Silfficicut convicCiun in law, as liy ancient
presidents in this court : viz. Kiteies, afler nn
appeal, sends a challenger Cu Scroop, and was
tberefore adjudged guiliy-
Doctur iJack ansnered to all. That first, it
was prudence for Ramsey lo answer in geiwral
tiegativel;, having been newly landed from seaj
and might be ticused till time and coiiiidera-
don, to refresh his memory, being not upon
oath ; and as yet, the Defendant need not an-
swer perfectly, (ill farther time and favour, lo
Tiew the exhibits in court by copies, nhich be
And directly urged against the lord Rey's re-
jtlication, not to De allowed ; because, Rey,
referring himself now to proo^, might have
taved the trouhle of this court of bunour and
Chitalrie and hnziard of iheir persnns by corn-
bate, n hicb intends the trial without proofa ;
and that the Defundant having ingaged bis
nireties, but to this day, he humbly desires the
time and place to be ordered for the Sudden
ciunbate, according to the law of arms, anil
£uitom of this court; saying, thnt the duel
ihreseen, must ensue upon the appeal and de-
nial ; and therefore oaghi now to be granted.
Doctur Rccva mayed for continuance of the
replication, and consented to ihe com hate ; the
court admitted the repliciuion, and ordered
time till Wedncsilay for eicrptions thereto.
Doctor Duck oftcred some reasons to satisfy
Key, and extremely to rensiire Hnmsey, where
he was interrupted and told by the earl mar-
Shall, that the court ttill snve hiui the labour
and cniincel, till the rcjoynilcrs be put in, aod
then to be "rdired.
Doctor EJen shewed, tli.-it the copies of the
letters exhibited were not tiiven out ; nor shall,
(ayes the earl mni$h»l, till the court have con-
■i-lered of the contents, nnd so ihey were read.
The one was from Hamsey to Rey, certi(yin!>
him of passages in the Low Countreys since Uicir
jtartii^ (o put the mnrqui'Sse inminde of direct-
ing him liow to dispoic of the ammunition and
arms in his custody; substtihed,"yoaraervBnt,
ft^mtey."
The other from the lord marquesse, to the lord
Rey, congratulating his love and ailection, ei-
pressing a great desire to meal him in Gennnnj,
Dpun any termes be would propnse ; and that
Ramsey the hearer was instructed for him to
treat with the kin^ of Swede, whnm he desires
t] foTour and assist, " wliich will oblige him
bis friend and servant, HamiltuD."
Doctor Duck opened the nliole matter, and
eich particular, insisting, thnt my lord Rey's
evidence being far the km^, and he a person of
hinour,nndpetTofScotliuid, his testimony whs
■u£cient. And moves thnt Mr. Meldram might
be admitted for supply, for ihongh they were
not joy nt
einj II
tnade up a fUll proof: that nu testuoiniy may
be neglected in matters of treason. Iliat if
any part of the charge was denied ^y tlie De-
fendant, and p roved tjy the Appellant, it might
ur^ed the offence of Ramsey's chaQengiog Rey.
But more of that hereafter.
But doctor Reeves prosecuted the matter, for
that Ramsey's councel endeavoured to prove
that he might decline the combate, or forbev
answering, because of some words which re-
flected upon my lord Key as matter of reproach,
that Rey had uttered words of treason to catch
Ramsey, nod then to turn infomieT. But (said
he) tio ofEcc can be accounted base, when the
king and kingdom's safety is concerned ; citing
a story out of Livie, that the Romans confede-
rate with the Sanubies, were to undergo ■ bate
otBce that stood not with honour, and resolved,
S'l long as it wns advantugious to the ttomaua
state, it might with bouour be undertaken.
Doctor Eden was earnest to eicuse himself
fur putting in these words against the lotdlley,
saying, that his client enforced to have them in-
But being a point of honour, the earl mar-
shal-interposed, that true it was, the best man
may not reniaethe basest o£ce to preserve a
king and nation ; but again, it was most unwor-
thy the dei^ree of honour, for any man to angle
■ml intmp another, and then to present him to
that king's jus tjce.
Then the pleaders argued concerning Md-
dram's lestimonv, that no proof ought to be
omitted for the ting ; but it was o^red lor
.Iluinscy 10 joyri issue upon tluit point in law;
for the bill was laid against him rvot general, but
particular to place, time and mstter, viz, that
in May last in a niiip, and afterwards at Amster-
dam, then again at Delph, Ramsev should s^
suc-h and such words, which if MeMram would
justilie, besides himself, they ought to be admit-
ted, otherwise it was no good matter, but must
refer to a new bill.
That the Defeudant had answered fully, for
EliHt the lord Rey .profcred his service to tb«
marqticssc without pressing to know any desigikf.
That nothing in the letters cuiild convict Bant-
sey. Tliiit the lord Rey standing upou hisgreat
olhces under the king of Swede, and so not ne-
cessiinteit to serve (he marquesse, he hsd net
th.ise places of command tlien, but since; and
that since his coming into England, he said titat
be would have served under the marquess, and
concluded ihnt Ramsey and the marquess might
use such words, and yet not intend treason t[>
his majesty.
But liiiving in this tryalmcdlcdio much with
the marquess, the court wus faui to enter an
order or protection, to clear the marquess bit
words or actions from dishonour.
Ilien the court proceeded to examine Wit-
nesses zha loce.
ArchlUU Rtiukn was to piore the challenge
493] STATE TELIAt^ 7 CmASLiiI. l6Sh—agimut Mr. Hand £
im
•s tlie bringer : npoii thet« queitions he
fetaed, that bs was in Rninsej's cbaiuber at
Richmond the last or October. That.Ranuej
M not imploj him to carry any challenge to
the lord Bey ; but nt that time RamMy told
him, that it «as hii grief to be restrayned not
to meet Rey, who irai a trajteroua villain, and
wished to meet him in the opta fieldi at Bam
£Iau, he iTuuld make him dye for it, and tear
his lienrt, witli Other such itords of reproacb,
and viibed this deponent to tell Rey lo tnucb,
which he did, hut it was three weeks after,
and then, not until the lord Rey told him, that
Ramsey had sent him a challenge; so that, snid
Ramsey, my ineuage was but a relation, not a
GhaUenae.
But Rauken was obserred lo falter from what
be affirtiied before Dr. Reeves, and iitlicrs, viz.
to have carriad the challenge, and that Rnmsey
conid not deny it; so that Uaulieii was thrcac-
ned Dot lo accuse Ramsey.
Gilbert Seaton deposed, that Ramtcy said,
he hud mode it come tu Rey'a eats, to have
ended this bcuinesse without troubling tbe king
or lords.
Then doctor Duck lummoned up all the pro-
Gwdiiigs,ab»eryit)gthatrarinerly in the presence
of tbe king. Ramsev had with deep protestations
and oath deaied the time, place, and matter
•bich be now confeseetb, and tbuugh then not
namined upon oath, yet in France and otfacr
countreys, the very holding up of the hatid i|
aooath.aadsoTertulliansayes of the Romanes^
and Raiasey confessing pan, he might be guilty
of the whole charge.
Z>octor Edea suid, that Rey was not a com-
EenC witnesse against Ramsey, though for tbe
g, for lie was ' particeps criminit ; capitalis
* inimicuE :' for the first his bill made him so ;
lot if Ramsey spake treason, so did Hey ; for
Ibe second, it appeireth by Key's violent pro-
•rcntioD, and if all failed, bii swont must make
h good ; and so the Defendant was not bound
to answer, nor to accept the challenge unleue
lie will, to which he is so willing.
But iloctor Duck taid these reasons did not
• currere quatuot pedibus.' Some of the con-
■piratun with Catahne were revealen of tbe
trrasou, and allowed ns wilnetset.
Doctor Reeves concluded, that although some
•Tthe lord Rey'i witnesses did not aSrm what
they might, it would encourage him to set a
diaiper edge upon his sword when he entered
the mts; and lliat the God of tight would so
weaken the heart of Ramsey, that it should fail
hun when he took his sword in hand.
Tbe faoly-daies of Cliristianss drawing nigh,
the cgurt OTdered, that either party might repair
to sir Henry Martin, and possets* liim with fur-
ther pro«&, out of these witnesses already eia-
miaeil, but of no other. And so adjourned the
court till Monday the 9th of January, when
after some small debates, but no fiirther maU;r
or prooEi, the businesse was briefly determined
to lie referred to the kin^s pleasure.
Which came to thle account. That Hamil-
tan's palter with iha kin^ got i^U fix'Oiir fer
Ramsey ; and well rewarded in due time ; and
Rey having done the duty of a loyal subject
left the court and kingdom, and retorned to liii
RiTsnnoftTH's Aetoxm.
Towards the end of tliis year (1630), the mar*
qnis of Hamilton arrived at the court of Eng-
land, where was at that time MnckaVi lorq
Ochitiry, a lord in Scotland, by name Stusr^
and who once bore the name of tbe earl af
Arran, when by a parliament which cantracte4
a by-nnnie in that kingdom, the Hamilton^ wer;
attainted ofTreuson, but afterwards both blood,
honour, and estate were reatnred to them.
This lord had no kindness for the marquisof
Hamilton, but nourished a discourse, whici}
Ramsay let fall to tbe lord Rea when they wcrQ
beyond seas ; and prevailed so far with lor j
Weston, tlien lord high treasurer of England,
as to itopait the biisineM to the king, being f
Treason of an high nature (if true) to this eScct ;
' That he raised this new army, with desi^,
' when he was at the bead of them, to let him*
' self up US kin^ of Scotland.' Much credit
was given to this design by the lord Weston
lord high treasurer, who endeavoured to pei';
suade the king not to permit the mart^uia bf
come near his sacred person, and in no kind tq
hare the pii*ilege to lie in his majesty's bed^
chamber, lest bis majesty's life were hazardiHi
thereby.
The lord Weston pressed this home unto thq
king, but his mniesty kept his thoughts private
to himsetr; and havmg a great alTeciion to Ha^
believe it ; and that the world may ko.oi«
I have a. confidence in your loyally, you ihal)
lie in mv bqd-chaaiber ibii night. But th^
qiarquii beseeched his majesiv to eicuse him,
till he had received a Trial, and was cleared of
tbe Treiison he was accused of ; but tbe kins
would receive no denial, yet told him he.woulit
Eut tbe business into a way oF exominuioo;
ut afterwards when the examination wasiakeOi
it was found-that tbe one affirmed the accusa-
tion to be true, and tlie other as positirely de-
nied it, and that there appeared not then aoj
concurrent proof of thesame. ,
A report of these Examination* wb( tfier-
wnrds mude to the king's majesty, who was gra-
ciously pleated to refer [he whole, matter tf> ^
Trial before tbe lord high constable, and earl
marshal, in the Court of Honour, of which tb^
reader will have a fiill account towards the en4
of the next year in its proper time and place.
In ibe mean time, the kmg caused Rea anil
Ramsey to be secured in order to that trial : M
the marquis proceeded in makini proriaions for
the embarquioa of his army, and ordering tbosQ
forces iu Scotland to b^ in randines^ to b*
^ipjied, t» ^roe to the place of rfttdeiFWA
«hep tbej rtc«ivett orders,
495] STATE TRIALS, TCharlesI. 1631,
■A Mevohiiil made b; 'Mr. Justice Wtiitlock
in liis lire-time cunceroing tlie lord Re«'s
Discover; of the oiurquij ul HBiuihou's Ctm-
' Presently after mj return from tlits circuit,
* tnyaelfand cite Ttstufthc Judges of tlieKingV
' Bencli were sent for by I)ie Liin1-Kee|jer lo
' London, lu ndii-'e nith him aliout tlie alTiiirs
' ofhii majeriy. We cametliither oii Alond.iy,
* as Augun, eicept tlie Cbief-Juilirp, >vhu was
* lick. Tlie matter consulted of, wa-< to five
* our opinion, roucerniog jlie coiiferente had
■ in Gcniuiny Iwtween ctr'tRlii Scolisli eentle-
' men ab<iut ilie mailing ihe murquis of liamil-
* too (he liead of h party againsi ilie king tud
* hi> kiiij>damj of England and Scotlaod.
' The liitd Rfa, a Scocish baron, did impeach
' Ramsey and Meldnim Tot moving him to (his
* Conspiracy ; ihey denied it punctually, and
* no witorss could be produced. Ilaiii<>ey. n
' soldier, 'offered to clear fainuelf by couiW,
' tbat he nas ionucent; and ibe appellant ac-
* cepted of hit offer. The king <*bs dnirous it
* should be put upon a Duel; and we were
* consulted with, 1st. What the offence waa?
' opinion, Isl, That it was an liii<h and hotri'
* ble Trenson, if (hat in the Examinations were
' found tnie. 9dly, That the I'rial mi^lit he
' by an .'\ppfal ol' Treason, upon wliic:li tlie
' Combat might be joined : bat the kins must
* make a constable durante bene placilo, for the
* manhal could not take the appeal without
' him : thai it must be- after iha manner of the
' uvil law, and we nere not to meiidle in it.
' Likeiiite we were of opinisti that this pro-
* ceeding before the cnustable aud marshnl wai,
'as it was before the statute of the 35 U. 8,
* cap. 3. and thnt statute deviaed n way how
' to try iheae foreign treasons in England, but
' did not take away the other. We were also
' of opinion that the statute of t Mar. cap. 10.
' did not take it away nor intend it; and that
' a canvictiuD in this appeal was no comiptiun
' of bhiod nr forfeiture ol the common Jnw."
See Doughtie's Ca^e in Coke's Coinmeutaries,
fol. 75, sect. Escuage.
By orderofBcammi(sii>n under the great&eni,
dated [lie 31th of Nurrinber, (1631) theie bo-
(•D a notable Trial, before Robert e-arl of Lind-
iey, conilable of England ; and I'hoinas earl of
Arundel and Sorrey, earl inanlial of En^laiid,
In the Court of C'hivnlrj, judicially litiine in
the Painted-Chamber at.Wcstmiiiticr ; toge-
ther witli oilter houourable persons, namely
Philip earl of Pembronk and Montgomery, lord
chamberiaiil of the king'i lioushold ; Edward
eart of Dorset, lord chamberlain of the queen's
boushotd; James earl of Carlisle; Edmund
earl of Mulgrave ; William earl of Morton ;
Willinra earl of Sirathcrne ; Edward vicount
WiiobletDn i Thomas vicount Wei'itwnrth;
Ilenry vicouiit Fautklaiid ; and sir Elenry Mnr-
UD, Judge of the high court of Admiralty; aU
—Proctatinp to the Cowl Bf Chivahy, [494
of counsel with the cnUrt ; Gilbert Delhick
being Register. And first VViiliam Seager, king
of arms, picsenied to the lord constable of Eng-
land letters pntcntt of the tenor following.
' Carolus Dei gratia A ngliz, Scotiie, Francic,
et llibernic, rex, Sdei dcfen&or, tcci predilecto
el p<.'r-qiin<n fideli coosanguiiieo et onsiliaria
liostro Roberto coiiiit. Ijndsey sumiiiu came-
rario AngliK aalutem. Cum odicium coDSta-
bular. Anglta; vacans eijsiat, ac Donaldus
Mackay doininus Ilea imncupatua, in regno
nistrn Scotis oriundo^, queodam Daiidem
Rurntey amiger. iu poiImr regno nosiro
ortuin, de quibusdam contemptis'et proditi-
onibna contra nos in pariibus transmarinia
actis et pecpetmtis, in curia nnlitari appellara
iniendi^ et nobis supplicavit sibi justitiam
super appellatione predicta exhiberi : Nus in
hue parte fieri volentes, quod juslum est, ac
de fidelitateet providn circnmspectioiie vettr>
pi en iu< confid elites, vobisconces^musofiicinm
constabuliir. Anglis (hnc vice) ad appella-
tionem prediitiuu Doiinldi in liac parte, una
cum predilecto et pcr-quanifideliconsaDguilieo
ac consiliario uostro Thoma comite Arundel
et Surr. maresctial. noitro Angliz, audiend. et
sine debiio termiiiGnd. et omnia que ad o£-
cium constabular. pertinent in causa et ne-
eotiii predictis faciend. et eiercend. sectmdani
legem et consuetudinem armorum et curiz mi-
litnris Anglite, Tobis, u^ predictum est, auiho-
riiatem damns et committimua, tenore presec-
tium : ct ideo vobis cnandumus, quod circa
premissa, una cum prefato mnrescallo inten-
dentrs sitig, in forma predicta: damus autem
ducibus, marcliionibus, comitihus, vicecomith-
bus, baroDlbos, justiciariis, ballivis, prepotiti*
ct ministris, et aliis fidelibus no^tri* ooiveraii
et bingulis, tam infra libertatet, quam extra,
lenore presentium in roandntii, quod voliii in
prt-missis faciend, et explcnd. iniendente* siot,
et cnnE.u1enteB, respondcntes, et autilionles,
quolii s ct prout per vos fuirint super hoc pre-
inunili ex parto nostra. In cujus rei testinio-
niurn lins liteni<> nostras fieri fecimus palpates. .
Teste me ipso npud Westm . vicesi mo quarto
die Novemb. anno r^ni noitti ^eplimo. Pec
Wliich letters patents being rend by the Re<ti»-
ter of the court, Donold lord ttea, the rtainitff;
aud Diivid Rumiiay, gentleman of the king'a
privy- chamber. Defendant, made their personal
appearance. Then tlie lord marshal spake in
defence of the Cnurt of Chivalry, and llie man-
ner of proceeiiiiig (herein, accordini; to the law
end custom of arms, shewing ;
" TiiHt it was legal and agreeable to tight
and ju'itice, ai any judicial proress in anj
otlier court of this icaliii : especiany when the
nature of tbe cnuse required it. And tbat in
these latter ages iliis kind of ErJilt hath not bin
frequnilly used, but that wat to be oiiributcd
to tlic pious and peaceable government of ibe
state. Under our most liai>py and pnideni king,
and hit most iltu'trious predecessors, the kings
and queens of ICiigland, and the obedience Biiq
fidelity of the pe»^ of England; faoihwhid
49;] STATE TRIALSi 7 Cha«L£» L 1031— agdinit Mr. David Ramiy. [483
court of Chivalrj sball so award ; nod sliull bo
bdiind in nil Aaiy ever to pray for jcur m«-
jeslj's long life and haffiy reign."
Lord Rfa's Appeal.
Tlie Petition being read, tlie Lord Constable,
with tliP counul of the udiernublts, declared
hii niitjeatjr's ptcusuri!, tliu this cause ahould
be. tried in Cliis court, and gave the Appeal to
be read us fullawech :
" In the name of Gud, Amen, Before jou,
most illustrious and riglit honourable lords, Ko-
bert earl uf Liudsey, cousiable of EoEland, and
Thoiuas earl of Arundel and Surrey, loarsbai of
England, or your lieutenant in this courl-inar-
tiiJ ; I Donald lord Ilea do accuse uiiil cliaU
leuge thee David Rams^ in the month of Maj
or uf June in the year ot^our Lord 1030i and ia
tlie Cth year of the reign of our lord Charles, ty
die grace of God Ling of England, Scotland,
France, and Ireland, being then alone in mj
■hip within or near the port of Elsinore, in tlia
liiuedom of Swedeland, in the upper part or
deck of tlie said ship, uhen tbou hadst uils dis-
course' or the liLe, and ipakest [beic or the like
words to roe in English, viz. Vou told me
many abuMa in the court of England, and that
there was nothing to he looked for but desol»-
liou and change of religion, and I here fore you
bad retired yourself tliencc, since no boneil
man could live there, and nith many such-dis-
course* you laboured to pogsesa mej to which
my answer was. The Lord mend those evils,
and no remedy but patience. ' By God, Do-
' na!d,' lait^ycm, (I kill use your own phrase)
' we must help God to amendit. Vou tuld me
yoti had brought »& much gold wiiii you as
would mainiaiii you at the rate of 6/. a oay for
three years, and^ou assured n:ie before that time
would expire, God would raise up some luea to
defend bis church, and liberate honest meu
fruni slavery. I, desired if you could tell if the
marquess of Hamilton would come over. You
said he woald the morrow or next day. Alter
I asked you what content myt lord mariiuess
had at home. Yi>u said, nooe. I a^keil you
what religion my lord marquess wai. You said,
a good proiestiint, and before it be long ho
would let the world see his design was for iha
defence of his religion, and the glory of God,
and that he should liavc an armv so well pro*
vided witli hrave men, and all warlike provision,
that he should not need lo be afraid with nhum
he encountered. J asked you whnt udvanta^
was it to \a to make a free passage for the Gos-
pel in Germany, if we lost it at home. YiMl
suid there weremanj honest men m our land,
ipeaking of Scotlendj adding, if we had ones
an army over, what would you think if we should
take a start to settle lliem also, for ere it be
loiig yau will Iiear our country will go together
bj the cars. So closing that night's discourse;
he says at last, some such thing perhnpi is in-
tended, but I will not tell you more, for my
master's secrets are dear to me. The third niebt
after, in an island, you told me, that Alex. Ha-
milun oud sir James Hamilton wcru to go Icr
or* ta be eMribed tothe favour of Almighty
God, coolerriflf; this blessing upon our nation
above all tlie nations round about as,"
3'l;e Lord Marshai further shewed ; " Tlint it
was au error in many, to apprehend, that as
soon ns an Appeal is brought into this court,
it was presently to be decided by Duel ; when
as duelling was the ultimate trial in defect ofall
others. And even then it was in the arbiiri-
_inenc of the cuurt, whether a duel shall be
panted or denied."
Tbe Earl Marshal's speech bring ended,
Arthur Duck, doctor of the civil law, made a
speech cuncerning the antiiiuity, jurisdiction,
and necessity of the Court ofCbivnlnr, held by
iJie, Lord fliih Constable, with the Karl Mar-
abaJ, espcciidly in cases of Treason, where tlie
(lutli can no otherwise be discovered.
Then Rea and Eamsey were called into the
ioDer court, and the one stood on the right
hand, and the other oa the left, of tlieiord COD-
Mable, and earl marshal.
the lord Rea presented bii Appeal in wri-
ting; and his Petition formerly exhibited to
the king, was read in tbesa woriis i
"Most humbly sheweth; That whereas he
having heard sundry speeches fall from Mr.
David Hamsey, importing plots and practices
against your royal crown and realms, did, ac-
cording to his doty and allegiance, reveal the
aanie to your majesty ; tlie truth whereofhe is
ready to muntain with the hazard of his life, and
dearest btood,if he bethereunto required. Now
*o it is (may it please your sacred miijesty} that
jaur petitioner being mformed, by bis counsel,
that thew trials, by duel, or single combat, are
tdliimioi rmedium ; and that a man may not
appeal tn this kind of divine judgment, but
where all possibility of discovery by ordinary
trials fail, and cannot be had. And whereas
jour suppliant, at such time as be disclosed all
the practices which he heard from the said
Ramsev, and did witlial discover what he heard
likewise from Robert Meldrum ; against whom
also one captain James Borihwick hath been
examined, and the examination of Meldrum
taken thereupon. And your suppliant con-
ceiving that if Meldrum be goillj, the said Mr.
Ramsey cannot be innocent, your suppliant
therefore, not out of any inclination to decline
iho combat (us God who knoweth his heart can
witness with him) but only out of his sincere
desire to have the truth discovered, in a case so
highly concerning yourmaJMty's safety, honour
BOd government, most huinhly prayeth, that
JOU would be graciously pleased, that Meldrum
nur beSnt proceeded aiaiast according to law;
and if Dpon his tryal, the Conspiracy aflirmeil
by your petitioner do not fully appear, he shall
th£n with all alacrity (as in a cuse which other-
wise cannot be cleared) justi fie bis assertions tn
be moit true ; either as a defendant against the
said Ramsey, who demanded the combat of him
before' your majesty, or as a challenger, if the
499] STATETRIALS, TChablwI. 1031,
EiiBlBnd,mn1 you for IIoUbik), and in tlie mcM"
while tir«ic>ided younetf willini; (o do me ser-
vice in England. I tiiJd you t hud n promise
of the teversioii of Orkney from the ting mv
muter ; if tJte marquess would mediate vvitli
big mnjesi V for it, lie would ilo me r jjrent kind-
nesj, and I gaid, it were good for my lord to
have a friend in that place for his ends. You
moreoier asked me, if thtre were good har-
bnurs in Orkney, or in my Innd, at in iinj part
that might be fortified. I said, yes. You said,
' by Cod, it wBi to be thought upon ;' and you
desired leave to think upon it that ni^ht, and on
the morrow you atid Alexander I Iamiltt>n did de-
sire me to write a pcneral Ictlpr to the mar-
qneiS, wilh trust to the bearer Ales. Hamilton,
concerning Orkney, icst letters should mistatry,
with great assuranee iif true friend^ip from
your master, if 1 would coutinne constant in
to me from the Hague in the I^w-Cmin tries to
AmBterdam, where you stayed with me eight
days, ami drhvered me a letter from the mar-
quess, only of compliment and thanks; and
you told me all went right with the roarfjuess,
that he' bnd gotten from his majesty 10,000'.
in England, and the Wine Customs of Scotland
for lOyears, IV hich the marquess would sell, and
nil ihiiigR went on without any demur or ob-
Blacle, and the only stay was for want of amis,
ammunition, and especially powder,anH desired
me to put in hard with tlie Swedish arnhnssador,
which I did ; and ynn lold me, ttmt the mar-
quess had nrit to you, that if the arms and
other provisions were obtained, they should ht
sent to England and not to Scotland; at which
you did mnrrel, because his lordihip had chang-
ed his resolution, being all the other provisions
were Bent to Scotland. Also you told me, ibat
tnj lord had sHit over :i man to receive ibem,
■s I desired. I told yon the letter which iMr.
Lin^sey broaghc me, desired the arms to be
■ent to Etigland. You laid, though the prms
were had, yet you would not send them till
you had tiirtlier order from the marquess, and
you desired me to haste tt you the answer
thereof. In the enii you told lue you had c*il
" ■ " , that the marquess's lady was
—Prcceediagt m tbt Court <f C3uMlty, [500
I asked if my lord was to raise any men ia
EnghuHJ. You said, one regiment. I uked
you if they would be true to va! You said that
there were English that my lord was as mudi
assured of as of any Scots. I asked, where w«
slioutd make these meei. You said at Har-
wich or Yarmouth. I asked if they were forti-
lied. You said, that no pans of all ihww
cooats in En^nd or Scntluad cooM hold m
fi-om landing. I told you that 1 feared Mr.
Meldrum was an evil secretary. You asked me
wherein. I said, that Meldrum had told me
many things, aod llrat I ihou^t he hkd told it
to others. You said Mr, Meldrum knew no-
thing thereof when you came from England,
though he might Well suspect, and that he spakt
once lo you at that time, as if all were oois,
and that yoU had great patience lo hold your
hands off him, although he was yout Cousin. I
lold you that I was not ■ sohfier of fortuae;
but had bread at home, and might live wilJiont
' irdingray life i ' ■" '
ught to bed o\
child.
le few days after, in Mnfcli or April
past, at Dclf in the Low-Countries, I told you
that I hod a letter from the king of Sweden to
the king of Britain, detirtng some ships lor tlie
marquess. Yoo said the marquess and I must
beware of that, for then they will think that
we mean to take their land from them with
their own ships, I asked yon, where our forces
■bould meet Yon answered me, on llie sen.
I asked you, where we should land. You said
in some part of your old matter the kinic i
I>eniuarb's country. You asked fiirther, whi
think you if we should plunder some nnok of
bis land,' and [hereafter go where we plense
foi we uihik be will be (he onty
'be most aeaiast us. I answered,!
tent; £m! be rests io bhu more than you all.
iian that
would know the business. You answered,
you would tetl me no more of your router's
secrets; but (hat you would write a letter with
me to ihc marquess, and when I came there,
the marquees would infuse in me that whicli
you would not; withal you desired me nut
to tell the mai-quess what had passed bttwiit
you and me, whereby the marquess shoold have
all tho thDiiks to himself: adding thst he was
very close, and that he would discover himsdf
to theib that he knew would hazard with him.
That niy brother-in-law Sealbnh knew all, and
that tl^ marquess misted him much, I asked
you what wus done in tny business of Orkney.
You told me, nothing till my coming, and ssid,
it iniglit be 1 sliould have it better cheap ibsn
Co pay tlie duty of it; and yoo told me Eng-
laiid had made a peace with Sp^n, very pre-
judicial to Hollnnd ; and that Spmn and France
were lioth striving who should first drink ap
Fngland, but you hoped we should prevent
them both, fl'eaides, you told me the lack of
powder was ihe greatest let. As for arms, we
miglit get help llieieof in every house, and ibnl
we had reasonable provision thereof already ;
and that luy lord had written to yon that he had
DO pieties of cannon great and small already pro-
vided. I desired you lo go in person and (peak
to the Swedish ambassador for the powder, and
to advertise mc in the Brill of Lis answer, tbar
so 1 might assure ibe marquis what be mi^t
expect: and you did send a letter by one of
yriurowo men to the Brill: to shew me that
you were wiih the ambassador, and hoped to
bave that which we spake of. Ytiu asked my
advice whether it was best to cross the seas
once, or lo go on bravely. I answered, ' delap
' were not good,' wliicb you did condescend
unTo, or you used word* and speeches to that
eSect.
" Bm if Ihou the said David TUtnsey shall
deny the premises, orsaytbou hadstnotthe
same discourse, tn- to the swnf effect aitb me,
To the Kb
ble
" Hunibl; betieecliing your royal mnjtsty ia
tills cause of appeu) agKitui Dmid Raouey ia
.the C-ourt cjT Chivalry, tagruiit uoto the laid
petitioner, tliat he may bare the pai-iie>, whow
namef are in the Sclwdule bereuoto aaeeied,
to he uf his counsel in lUe laJri court. And he
Bhall doily pray for your majetly's long Lie and
hi^jpy reign a< - " "'
9 f-lslv, K
rove this
»1] STATE TRIALS, 7 CHAHLEa I. 1C3I agatnH Mr. JDowd 5a»i*y, (jtt)
"•: tlwiiwesftid times and places ; I the afore-
said Donald loid Reti say and aSira, tliat Ihou
David aamwy art a false traitor and licii
laisly. And lu caaa the pramiaes cannot other-
wise be found out by the Seutenceoftlks court,
proffer myself ready by tlie help of God, to
prove and juitifj this my Accusation and Ap-
peal, by my body upon thy body, according to
the law* and cusiorat of weapons in a Duel, to
be petfeimed iu tfae preKDce of our lord the
king, ate"
Wbich challenge being publickly recited, the
Mid Donald lord Hea, the party challeneini;
threw his glove in the Court, of a red or brown
colour, for a pawn or pledgp. in nH>u>n<'s nf >l._
aforesaid lord coniiable, am
»bal, in eonfinqation of alj contained in the Bill
and Cballeuge,
Then tb* aaid David Ramsey antwerAl,
his.own person, and said, " That the said i
«, and that the
pellanl or chulteiigi
c was ready to Justify
s in Dutrl, according 10 the laws
•ad coitonu of arms, and of this court, by his
body upon the body of the said Donald kwd
Kea, ai it should leem good to the court."
And thereupon in cnnSrmation and jiutifioB-
tioo of tbo premises, be threw his glo»e in the
court, of a while colour, for liig pBwu,or pledge,
in presence of the lord constable, and earl
manbal aforesaid ; which gloves respectively
Richard St. George, otherwifc Clarenceui, king
of arms, look up and delivered into the bunds
of the said loitl constable, with due reverence,
and the said lord constable, together with tbe
carl marshal, coinmitted them id tbe cuKody of
ihe albreiaid Reeister of the court. ITien the
•aid Lord Marslinl arrested, as well the laid
lord Rea, the Challenger, as the aforesaid
David Ramsey, esq. the Defendont. And the
said Donald lord R*a produced sir Robert Gor-
don, sir Pierce Crosby, sir Walter Crosby, and
sir William Forbes,-ktiklit» and baro^et^ and
William Innis, esq. for bis lareties, who obliged
tbewiidve* all, and every of them, el divUm et
ca^mattim, to our lord the king, for the said
loid Rea, body for body, that tfae said lord Red
sboald duty proiecute this nforesaid Chnllenge
to tbe final and last detenniaatiiHi of the same;
and that in the mean time (be said lonl Rea
iboald keep the peace of our lord the king,
gainst all and every of Ins liei^es, and especially
•gaiMt tbe aforesaid David Raniser, eu^
And the said David llnsiacv produced for bis
furetie*, tbe right bonourable James carl of
Abercorne, and Robert carl of Roiborongh.
Then tbe Earl Msrsbal aforesaid released Do-
nald lord Rea the Challenger, and the aforesaid
David Ramsey Defendant, from the afbreiaid
arrest, and at their rei)ue«t respectively deli-
vered their bonds of suretiships to becanceiled.
Aftertljis,(he[e was read in the court, the lord
B«a't Petiuan to (he king, for divers nobleBien
and othet« to be of bis oouaael in this cwise;
•rhese nanes be presented in a adiedale aanei-
•it ■• tbey •» hare recorded,
" Geoige esri of Lyney, lord Gordtin ; Milei
vise. Mavo; TJie<)|i«ld baron uf Brillis; Maur
rice Aiich, saa and heir of the vicounc Fennoy;
Donuougli Mac Chatty, son and heir of tbe vn
count Muikery; sir Hubert Gordon i sirPieiea
Crosby ; sir WiJter Croibv ; su: VVilliam
Forbes; Donnough O Couno Sligo; Jama*
Ilay, esq. of liismnjeHv's body; Willinm Iiinis,
esq. ; Dr. Rives; Dr. Duck ; Mr. Sekleii, and
Mr. Littleton, of tbe luncr 'i'eniple."
Upon which his majeaiy issued out the fol-
iog Order :
*' It is bis majesty's pleasure, that only theaa
shnuld serve, Iwth for his friends to advise him,
and his Counsel to ple^id for him."
R*mset's Defence.
" In tlie name of God, Amen. lo the pre-
setice of you most illustrious and right bonouT<
able Robert oaii of Liadsey, constable of Ei^-
laAd, and Thomas earl of Aruodet and Surrey,
martial of England, .or your deputies in your
court marshal; I David Ramsey, esq. Defend-
ent,Eay nud aifirm, thatalLaiid every tbe things
contained in the laid pretended Appeal and
Accusation, were and aie falte, and suggested
and proposed against me maliciously, eifd
against truth, eicepting what follows at tbe tioM
and place uiider-written, I had xbt uodep-writ-
ten discourse with thee, or to tbe saibe ebct,
and no other, vii.
" I David Ramsey being with thee Donald
lord Hea, in the month of May or June, as it is
in tbe said hill menUohcd, and in the ship thera
also meniioneil, being in or near tbe port cbeie
mentioned, thou desiredst that I would tell
thee, if the marquess of Hanultoa wonld coma
over; a|id I auswer«d he would. And yoti
asking me of wliat religion tbe lord marqueM
las, 1 said, a good Protestant, and before it
e long,1ie would lee the world see his desiea
'as for the defence of hb religion, and l£a
plory of God. And ttien asking me wbeliwr
he would come over with an army ; I said,
vith an army of brave men, and all war-
irovislon, that he cared not wiib whom he
encoiinired. Which pa«sages, upon often and
belter recullecling of my nlemory and thMipdlta
than heretofore, I do now reineinbw. And
you the said IJooald lord Ken, huviog thenaa*
deryutir command two regiments ot soukiien
in service of the king of Swedland, and tbwi
and tliere of thine own accord saying lo m,
thou wouldst get leave of (be said king to joia
your said two legjitieula with the said lord mn-
quws his fbtceih and serve ibe said ting ia tba
803] STATE TRIALS, TCharlmI. lG3\.—Procadingi m ihe CoioI qf Ckioalry. [504
nan uuder iha lord mirquns, I kindly accept-
ed that moliou iifyoura, and desired to confirm
il in you ; and I cold you, that Alex. Hamilton
. and sir J amej Hamiltnn i^erc to go for Eng-
land ; and ynu to)d me you hnd a promise of
ihe reversion of Orkney from tlie king your
master, if the marqueis would luediace with
yoar master fiir it ; and I and Alex. Unmilcon
did desire you to write a i^Deral letter to the
mnrquen, vrith Crust to ihe bearer Alex. Ha-
milton concerning Orkney ; and nfsured you of
the said miirquess his friendship, if you would
xroncinue constant In your reiolutioo, in joining
your rtgiinents wicl( the lord ^mrquess, when
Tie should come over, and jon^gnye a letter »c-
cordiiiijty. Aftenvaids in March last, I being
then ut the Hagoe in iuiploiruenl for proiiding
furniture for the said muxiuess his companies,
which were to go over into the ting of Swed-
Innd's scrrice, came co you from the Hague to
Amsterdam, being earnestly invited thereunto
by letters from you ; where I siaied mth you
eight days, and delivered to you a letter from
the marquess onl^ of complement and thanks
for your offer, to join your resiment under the
lDa[c)uess his command. And I told you all
went right with (he marquess, ond that I beard
he bad golten from his mnjesty ]0,000i. in
England, and the Wine-Customs in Scotland
for 16 years, which he would sell; and -all
thinsb for his coming over nirh his forces went
on without any demur or obstacle ; and the
only st.iy " ' " "
which yon did after the premises. And in
March or Auril Inst, in Dtlf in the Low^'oun-
tries, you told ine, you had n letter from the
king of Swoden to the liing of Britain, to de-
sire some slrips for the inarqnesi. And you
■aid further, that the king of Sweden snid, h^
had no ^ips to spare of his onu, but he would
writ* to our king for some for him ; and that
he the said king of Sweden would allow
40,000 rix -dollar? for the entertaiinnent of the
•aid ships to be always in readiness upon die
motions of his army. You also asked me, if
my loid marquees wns to raise any men in
England. I nnswereil, I heard he
where they should land. I answered, I was
doubtful where, because the rende^TOuz was to
be appointed by the king of Sweden. You
•aid further, that you wns not a soukjier of for-
tune, chat you h)id bread at home, and might
live without liDiarding youriclf in the fortunes
of war; yet that jou would hazard your life
and fbriane with the manjucai, I answered, I
knew no more of the marquess his designs,
than I bad then told ;nu, but that I would
write to the marqness to' commend to him your
Ibrward afTection to his service, or to that par-
CI tnid you, (hat since my being in Uol-
, I did perceive the Hidlanders did con.
ccive, that En^nd had made a pesc« with
Spain very prejudicial to Hollgud ; and Ilitt
divers ot tliem liad said so in my hearing:
which passages concerning the said peace, upon
often and better recoltecliun of my memory
and thoughts than bereCofbre, I do now le-
memSer. Aud I also told you, that the lack
of powder was lite greatest stay of the mnrqueM
his coming over; and you desired me to speak
myself to the Swedish ambassador for the
powder, and to advertise you of hit answer,
that you might assure the said lord marquess
what he mi^t expect ; and I did send one of
my men to the Brill, called John Thompson,
to shew you I was with the ambassador, and
hope to have what we spoke of.
" But whereas thou the said Donald lord
Rea in tliy said preteuded Accusntion or Ap-
peal dost affirm, that I said other words tt
thee, than such as are here set down in this my
Defence: 1 the aforesaid David Ramsey say
and attirm, that ibou liest tklsly, and ait a hise
calumniator, and oughrest to be puniahed with
the punishment of a false traitor; and I offer
myself ready to prove and justify, by the help
of God, this my Defence anii Exception, by
my body upon ihy body, according to the law
and custom of arms in a Duel,lo be periiiroierl
in the presence of our lord the king. And I
humbly and instant!? desire, ihal a dav and
place may be assigned for the tsid Duel,&c.''
Then was read in court the Petition ot Da-
vid liamsey to the king, bescec liing his majesty
to assign him the person, wliose name was
written in the Schedule annexed, to he (ff
counsel with him in this cause. Tlie name
written in the Schedule was Mr. Dr. Eden,
The Witnesses in tliis cause weire commanded
to make iheir personal appeararicetn the court,
and were there examined ; and divers leliera
written, as well from martjueas Hamilton ts
firom Ramsey to the lord Ren, were llicu pro-
Mr. Ramsey had bin released from impri-
sonment in the Tower upon bail, and his pro-
mise to ^pear before the Earl Marshu of
England, or such cither persons as his majesty
should appoint, at such time and place as
should be nsei(^ed nntn him, upon three days
warning ; in the mean time lo keep the peace,
and to confine himself to Richmond, having ilie
hberty of three miles walk, with this acknow-
ledgment, that in case of absenting himself
from sucli appearance, or breaking the peace,
he will be accounted- tuilty of the crime, for
which he stood committed. And for the per-
formance of this engagement, the carls of
Abercomeand Roiborougheuteredintuabood
of4,000f. to theking.
A wbilaoAer Ramsey entered ii) tbe coait a
Protestation of the tenor iollowing :
Ramsey's Piotestatioii.
" Whereas in obedience to his majesty's
commands, and in conformity to this honoura-
ble court, 1 have heretofore, contrary to sucb
seamed to ma mM reatonabla.
STATE TRIAI£, 7 CuARtEi I. I63I — agaimt Mr. David Ramty. [50fl
lord Res b; duel, if it sMmed good unto hii
majeaiy ; and tluit the king, observing the con-
fidence of tbe piirlies, ana llie defect of Qther
proois, and the parties free choice of duel, con-
lulted at>out the wa; of a public duel b; the
lutliorit}' of this court, and look care to be in-
fbmied of the proceedings and customs tliereufl
That it waa certain, that this cuun iros llie
ily publick judicature, to wKich the eogni-
ace of treasoni comiititted beyond sea apper-
tained before the time of Henry the 8th ; and
that the statute of 36ihahd 35thjeara ofihnt
king, concerning another manner of proceeding
' ereio, wns uot derogatory to the authority of
ii court, but ooly superadded another way of
ial. That all private dueb were accounted
id are unlawfuT; but publick duel*, decreed
by tha autlmrity of this court, were always
gnmied to be lawful in casea of treawui, when
the safety of the king and staxe the truth
lid Dot otherwise appear. That his majesty
therefore consented to the requests of these par-
, that they should fight a duel ibr the disco-
very of the truth in this behalf; and therelbre
he constituted and canfirmed this conil undec
the great seal of England. I'hat the Lord
Constable, aiid be the Ear) Marshal, according
to the king'B letters patents, together with those
nuble petsooi tliat were of counsel with the
court, had heard with patience whatsoever
was alledged on either side ; and that there wer4
three ways of detertninbg things of this aaturs
this court used by our ancestors.
1. To absolve the accosed ; which in this
case, the nature, quality, and circumstances
of the fact and crime objected being consider-
3. To condemn the accused, when the truth
of the crime objected evidently appeareth by
ritnesses, or any other way ; which in this case
hath notbecn,narseemeth possible to be, when
of the accusation it self, it nppeareth, tbu
the words were s)ioken seoclly, and not before
S05]
procared some perwiuagcs to stand engaged for
my personal appearance in this court, concern-
ing this pretended cause ; aiul have, in obedi-
ence and ciHilbrmity as aforesaid, uspd tbe
coaosd of Dr. Eden, assigned unto me for that
purpose by bis majesty, as defendeut in the
•aid cause : and whereas at my first appear-
ance, upon sight of my lord K^'s bill, X ac-
cepted of the Trial by Combat, and ever since
avoided and waved all courses umallj proposed
by dependents to avoid tbe combat, which at
this present I am reedy to entertaia ; and
whereas since from the premises, and the lord
Bea's pretences of proving new -matters, the fi-
nal decree in this cause, to my great prgudice
in mj other occasiDOs, hath bin from time to
. time put off, and notliing as I conceive, under
fitvonr of (his honanrable courr, proved against
■no, either to convince me of any matter ob-
jeoted against me, or to urge me by the law of
arms to submit myself to trial by combat, if I
had a desire to dechna it : I do here again once
more, and that most instantly, desire a certain
day and otace to be assigned . and decreed for
tbe combat between the said lord Hea and me,
for tbe trial of the matter in issue between us
ID this honourable court ; and I dg with all
humbleness desire of this honourable court,
(hat alter all tliese delays used on the lord Rea.'s
behalf, [ may now betake myself to my said
&rst intentions ; and therefore I do protest,
that so much as b me lietb, 1 do now disia-
gage, aod do deiire this honourable
ever after this time, lo bold for '
those honourable personages that
for my personal appeiiniDce [ and I do humbly
desire to know what his majesty's further flea-
sure is concerning, me, since 1 came lulbcr
npoo his majesty's comnmnd by letters, and
am here ready to satis^ my loyalty as his
faithful servant, with the hazard of my life."
And so mstanily desiriag and urging to be
released of his obligation, and that his sureties
might be likewise released, be was remanded
to the Tower of I/>ndon, nniJ his sureties were
released, and the bonds were rendered to them.
At another ntting, when Dr. Duck'moved
divers tilings in behalfof the lord Rea, declar-
ing, that with due reverence he submitted to
the court in all thinp ;
Tha £iirj Marthel made answer, That tbe
lord Rea had governed himself in th
process of the cause with much prudei
moderation, and wished that Ramsey had used
the like moderation in his Defence. And hi
fiirtber said. That now it seems necessary tt
lay open the series of tbe whole business ; anr
so continuing his speech, he shewed tlut ooi
Boveredgo lord the king, so soon as he bad
knowl^ge of tbe crime ebjecced,
diligence to find out the trutli, and called the
rrties beforeliiai; and the lord Kbr constaot-
aSrmed tbe truth of these things, and offered
10 justify the same with the haiard of his blood
and life ; and Mr, Ratmsey on the other part
with tbe like constancy denied the accusation,
and nidi be wouid prore it false egainat tbe
3, By way of publick dud, to the decreeing
whereof the lord constable and himself, with
the assent ot those hdnourahle persons of coun-
sel with the court, did intend to^pioceed.
Then the Lord CiMistable together with the
Earl Marshal demanded of the parties, whe-
ther they hiul any thing more to speak or pro-
pound in this cause. 1 ncy severally answered
they had nothing more. The forenamed lords
asked tbe lord lUa, whether be would finally
acquiesce in his furementioned Bill of AppeBl.
Whereuntu hs nnswered he would therein a&-
qutesce. Then they asked Ramsey, whether he
would acquiesce in his Answer to tbe Bill of
Appeal. WhereuntD he-also snsweied that he
wouhj therein acquiesce. After this, the Re-
gister read in court the lord Rea's Bill of Ap-
peal, and Ramsey's Defence in tbe presence of
the parties. Presently the lord Rea sealed hii
Bill with his seal at arras, and subscribed bis'
ner Mr, Kamsey sealed and subscribed hit An-
ft07] STATE TRIALS. 5 Chauxi I. i63l.^Pniecediiigi in the Court qfCSm^. [SHXt
Thrn the Lord Constable taking the Appeal
in his hands, and folding it up, put it intr '""
■ glove, which the lord Rei had cut forth ii
ciiurt far a pawn in thii liehalf ; and held the
Bill and glove in his right hand, and ii
lelt hand ill" Answer and i[lo»e or pa«
Davtil Ram.'ey ; and then jnining-the Bill and
AOiwer^and the gloves, and folding them toge-
llier, h€, ivilh the Earl Marshal, adjudged a
Duel betneen [he pnriies under this form of
' In the name of God the Father the Son and
' Ihc HoI^-GIidU, the Holy and most Blessed
' 1'rinit;, who is aae, and the onlj Cod and
' Judge of battels ; we, as hi ? vicegerents under
* the most excellent prince in Chriii onr lord
' and king, by whom we are deputed to this, do
' admit joa ilie aFbresaid IDonald lord Heb, the
* party challeoging, and yon the aforesaid Da-
■ viri Ramsey, the defendent, to a Duel, upon
' e'tij accusation contained in ihil bill '
' the answer to the same; and we assign
' you the tSth day of the manih of Apcil
' following, between sun and sun, in the fields
' called Tutlle-fielda, in or near Wettminster,
' in the presence of oor lutd tKe king, to do and
< perform your parts to' your utmost power re-
'spectivdT. — And we will and enjoyn you the
' tifbresaid lord Rea the Challenger, to bo in
' the aforesaid 6elds, sod within 5ib list there,
' between 7 and 9 of the clock in tbe forenoon
'of the aloresnid day. And we enjoyn yon
* the aforeiaid Daviii Ramsey the Defendetu,
' (o be in the fields in the aforesaid list between
' 9 and 11 of the clock in the forenoon of the
' Mid day, upon peril attending yon respectiiely
■ in that behalf
Which Decree and final Seoieuce
apanced.
The lord Rea cravine pardon of tbe court,
•pake to this rfiect. fmt, he gave thanks to
the lord cuostable, the earl marshal, and the
rant of the lords, that they had with so much
patience and justice heard and examined this
«ause, and for the justice tberein exercised, es-
pecielly for tlie Sentence already given. I'ben
he protested before Ahnighly God and that
court, that he had ceVeatcd nothing against
David Eamsey, or any other, for malice, or ha-
tred, at hope of reward, either gain, or honour,
bnt only out of his Ikilhfulnets id our lord the
king, Bnd for the safely of his flourishing king-
doms, knowing tlmt noting is more pernicious
to kingdoms and commonwealtla than intestine
wars. He professed that if ha himself had not
revealed the premisses, but some other ac-
ijUainted with tbe treason had first discovered
it, he without all doubt had deserved the death
of, a traitor. And whereta it might he said,
that be b^ revealing it had hazarded hii own
tiSt : to ihu he answered, that he was unworthy
of all honour, yea of life itself, that wa« not
ready to lay down, much more to hniard hi«
•wn life for the uSetj of king and kingdoa.
Apd whereas be might seen in tlie process of
this cause to have declined a duel ; ho deaned
to b« undertlood that wbatioever wa* dona m
that behalf, he did in hope and cipedaiion,
that the treason, which was conunutiicatcd to
many, might he some way brought to light ; bt
he did neitber distriut bis own cause, oor fear
the person of bis adversary, nor any other iu so
Just a cause, only in this he grieved, that an
adversary, equal to him ia binh, d^ree, and
nobility, was not oinlred. And whereas many
wondered that he would hazard bii life for re-
vealing words, whereof be vras doubtful, whe-
ther tbry would amount to treaaon or not j he
said, be knew much more concerning tbe trea^
son, than irhatwas contained in tbia mil, which,
by tbe interposing of amborily, was forjwt
causes yet to be suppreisfid.
As for the duel now decreed, he profeascf^
that heembraced tbe sentence with all (beBtiul-
ness, and desired no farther delay of the com-
bat, than that in the taean time be mij^t pro-
vide himself with such necesaaries for tins duel
as became bis slock and kindred, and the con-
batant and champion of so great a king. Tbat
be had no private hatred to the perton of Da-
vid Ramsey, but was now tt> encounter bio,
being by the court declared his public eoetay.
And so having prayed to God for bis majesty^
safety, and happy government, and implonog
the fovoor of the court, he luade an cod of
speaking.
After this the court assigned to both partia
a day, wbereon to make web ptopositioni as
they would thii^ fit.
Then tbe lord Rea desired, that the ctimei
and wanls, by him objected in hii bill against
David Ramsey, might he declared treasoaaUe,
and that Ratusey weregoillv of treason, if ha
uttered tboee Words i which tha ctkurC villf
nn unaointou* coMent did declare so, and ad-
Ramsey moved, ithat a shorter time, and
some day within tbe ISth of April, might be
assigned for the duel, sajuig tbat he would soan
compel the lotd Hea to coafcas tbe folshaod of
tbe crime objected, if be would meet bin in
place convenient.
The Lord Marshal answered, that tbt day
was ilAemiined ; and fnriber intiiuated te both
parties tbat they were to be attached and kept
in safe custody, if they gave not aofficient cau-
tion for their spearing at the day and placs
appointed, and in tbe mean sibile for kaqtuig
tbe peace. For the performance whereof on
his part the lord Hen produceil saretief, nameff
air Pierce Crosby, air WHliam Forbo, NT
Walter Crosby, knights and baxoMla, and W^
Jones, esq, who boniMl tlianselns to (i*
would bring forth sureties, answered, that be
was ready in the word and honour of a penile-
man, to oblige himself te whatsoever in tbat
regsrd should be by ihecourtenjoyned; bt*ai
for sureties (bat he had none, or at ItsM dmiti
gage noble persons, who had in odier reip*^
interposed hi tliH bchdf. Wheieapon the kKd
a09] STATE TRIALS. 7 Charles 1. in31.-r-ogawu( Mr. Vovid Ramiy.
t510
nitted ta tb« Tower dll the (la? appointed for
• the combat.
Tbeo Robert earl of Soiborough publickly
«Bered, and said chat liimselF bdo Jamea earl
ofAbercorne were reader to put in caution fur
RaDne?, if the court would ndmit them ; and
Walter earl of Balclaugh made the same offer;
and the court admitted them, (although tiic lord
fiea's ^Tocate alleged ma^y thiup to the coii-
Umij) aod they becatnG bound bad; for body.
Whereupon Railuej waa reieaMd from hii iiii-.
prisonmeut in (he Tower.
The lord coDstable and earl m'arglial admo-
nished both parties to keep witbia the bounds
assigned thetn, to wit, that the lard Rca should
not go westward heyond Charing-croM, nor
Alr.Ramteyhc^oDdWhilehalleastward. These
bounds ihej might not pass without the special
licence of the court, or gome just aud reosuD'
able cause.
The weapons, which the court assigned to the
combatanti, were a spear, a longsword, a short
iword, and a dagger; each of them with a point.
Then the lordilea presented these Protesta-
tions to the court.
Fmt, he did humbly desire of the right ho naui'
able judges the lord contcdtile and earl ninisbiil,
that his arms and weHpons might be assigned
bim jbr to aid himself therewith agninst bis ad'
versarj in the day and place to bim assigned,
and also in any other day and pUcrp, if auy
•bould he assigned him ; and that he might
have no weapon of advantage, and that he
iiii|;ht be received in the lisia or field with those
anns as shall be assigned him, and armed in
what sort he should pleaie ; and that be might
have with him all other things needful and ac-
customed byriglil to&id hiniseiratneed against
his adversary, nlthougli ihey be not expressly
written ; and desired that his adversary should
have lio other weapon, nur of other size tlmn
tfiMe, that he the snid lurd Kea should hare;
■nd if [he said adversary should bring into the
list any other weapons, or of other size than
the court shonld assign bim, that such weapon
•bould be taken from him, and that he be al-
lowed no other.
It seened reAsonoble to the court, that he
ahonld be received into the lists armed as is
fit: and as for the weapons, was to have a
•pear, a lone sword, a short sword and a dsfr-
ger, each with a point, as above said, und for
the rest (be court would do resstm, according
to the cDstom and law of arms-
Item, the said challeofier did pmy, that his
counsel might be received into the lists or field'
with him, for to counsel him what should be
needful, and that he muht have a chirurgeon
with his ointments and instruments to serve
and aid bim when need required ; and he did
pray, that his connsel might remain with him,
tintit the words Irutr k$ armet were cried.
The court willeth, diat he shnll have snflicient
counsel, a chirorgeon with his ointmeots and
instruments witbiu the said lists, as appertain-
eth, until the words kutr U» armti be pto-
. nounced.
Item, hedid pray, that he mig't have, within
die bnid lists or fields, a ic»t or pavihpo, or
other coverture to rest biinsell'i thai be might
have bread, wine, or other driiik, irun-nuls,
hammer, file, scissars, bodt:iiT, needle and
thread, armorer and tailor with their instru-
ments, and other necessaries to aid and seri>a
him in ivnil about his armour, weaj^on*, appurel
and fiirniture, as need required.
The court willed, that lie have a scat end
such coverture as he shall please, xs ilhoi:tii:<iug
any thing in the ground, bread, wine, and other
necessaries, in such cases requisite, till the
words ICMier la armtt were pronounced.
Item, he did pray, that he might liave li-
berty to make (rial of hit arms and weapons
within the field, to put thero off, and to put
them on, ttnd change them at his pleasure ; to
nail, fasten, or loose his arms and apparel, and
other things needful ; to eat and drink, and to
do alt otiicr his necessities.
The couit granted, until the word? bsstr lu
annei were pronounced.
Ilem, he did pray, that after be did once
come into the field and lists, that his adversary
stiould not le permitted to make him stay and
attend too long, under pain of being convict.
To this the court returned answer, The court
Item, lie did pray, thnt if it should happen,
cither liy the dday of his adversary, or any
oll)er impediment:, ilint he sliould not be able
to prove nis intent upon his adversary in the
day assigned him, between sun and sun, that
then he might hare furilier time and day al-
lowed and assigned him fur the proof thereof
on his said adversary.
To this the court answered. The court in
this case will do as anciently hnth been used
according to the custom and Ihw at arms.
Item, hedid pray, that the field and lisFi .
might be well and safely gunrded fnr him until
the end of the battel, and as well ii; the night
as in the day, until that with the aid of God he
should make good, and prove his intent upon
Tt was answered, The court will do herein
Item, he did humbly pray, that if God should'
so dispose, as that he died in the prosecution
of this his rightful appeal in this behalf^ that
then his heirs, without any. impeachment or
hindrance, might take hfs body and give it
Christian burial, in such place'as he shall ap-
point by his last will and testament.
It was answered, Tliis mast bo at the king's
pleasure.
Item, he did pray, that notwiihstanding that
the custom of arms will, that he should bear
into the (\M certain things necessary for him,
that these, or some of these things, may be
brought by others in ease of him, and that they
might be saved and carried hack for him, if in
case God should pleaiij to give liim the victory, .
as he may of his special goodness and mercy.
Hereupon this order was made by the court :
The Eouit nillctb, that you do herein ac-
ill] STATETRIAI^,.? ChaiulesI. IQH.—PToaxdmgiintieCoiirttfOaaiiry. [iH
cordiog to t)ie custom of aroK uted in like cues
before this time.
Item, lie did desire, thuC the sam« day when
fcilh God'« h«lp he did iutend to prove hia in-
tent upon his ndverutrj, he luiglii have utl other
tbinga necosnr; for biiu, and accustoincil by
right and law of arms, allhough [bey were not
ciprcMed in these hig protesUtlnus,
To thii it was ttnswered, The court trtrein
will do that vtliich iihaU leem rtMonabla unto
Item, be did pray, that tbeie bi« protesta-
tions, nor the copy of them, might be dehfercd
nor shewed to his adversarv, nor. to >n/ of liis
couiimI, or niher person, whereby his said ad-
versary migbt bave knowledge thereof: further
praying, and desiring, that ihe»e lus protesta-
tions Biid deniiuida might be graciously granted
unto him, by those honouiabte lords, as the
rjgbt and Ian of arms did require.
It was iiDSwered, The court would herein du
th>t which should be reason.
Item, he did pniy, that it mi^ht be lawful
Ibr him to go or ride into Tuttle-Gelds, in or
near Westminster, at his pleasure, and su often
as he should tliiak fit, to view the ground which
should be assigned him for the proving of iiij
intebt, and for such other ends as shuuld be
'most fur his advantage for the proiing of his
iutent upon his adversary.
Til thib the court answered, It seemeth rca-
tonable unto the court, that at convenient
times, which should be tignilied and eipressed
under the bonds of the lord constable and earl
marshal, what should be lawful for, bjm to do
Item, he did bumhlj pray, that since by the
Uwaitd custom of arms, and of the honmirablL'
court, the defendant is never to be ailuwtd
counsel, nor to liave any assistitoti, nor to bate
any petitions of fnvour pranted, eiceut in due
lime lie »ball hav« desired, or sliuU have pro-
tected that he would desire tbem ; and that in
tills case his adversary pubhckly hatli protested
■gninst till; having of couDsel, and all other
aids and aasislnntt in this court, ns by the acts
of the court appeareth; he humbly prayetb,
thnt he might not have any coiuijtl, uer uiiii, or
sssislAnts assigned unto him in this behalf; ond
that no petitions or protestatioos, if lie shall
make any, migiit be granted unto him ; and in
. this he buinbly desired the justice of that lio-
Answer was made, Tlie court would do
herein upon consideration, as to the cuiton
and law of arms appertained.
s fol-
A long sword, four foot and a half in length,
hilt and all ; in breadth two inches.
Short sword, a yard and four inches in length,
bitt and all ; in breadth two inches.
Pike, 6tieen foot in length, bead and all.
Dagger, nineteen incliek in length, hill and
all ; in breadth an inch.
Tha weeponi were not to exceed this propor-
tion ; but the paniei migbt abate of this lcii|<d>
and breudtbiftliey thougbtCt.
These proteitotions and petktons we[e ac-
cepted and regiiterecl,
AfUrwardsMr Kanisay presented a petitioB
to llie lord high constable, and to the earl mat-
sbal;
Ramsit's Pctitioh.
To the right hunourabte the lord high conttible
and the lord marshal of Kngland ; Ilie liuin-
ble Petition of Mr. David Itoniiay, gent, of
his majesty's privy-ehamber in ordinary.
Shewing ; That in regnrd (here can be no
president shewed Ibrth faj authentical record,
whereby the choice of arras was ever hereto-
fore permitted or granted to ibe cbolteiiger, oi
refused to the defender, suitable to the custom
and law of all Chrisliun natiuns ; as likenisr ia
regard the challenger Ijiinself, as I suppose,
being ashamed of liij) p rotes tationi and demaml
fur defensive armour, ha^ in good company de-
nied the same, ami ascribed it to your lord-
ships imposing ; he therefore according to the
said law of nations, and custom of the king-
dom, doth humbly inireat, ibat there be no'
other arms allowed Ibr ibe iH^, than such as
lordships were pleoscd to nominate, wbieli are
ibe most common in all eentlemen's opiniani,
and that are carried by all and every man that
is acquainted with the mniiageinent of llieni.
Lastly, intreating, that if there chanced ta
be found nn^' wnat or mistnke in the formnlity
of this, thnt your lordships will be pleased lo
pass over the same, and attribute it tu the ab-
sence of the Inwyer allowed by your lordsbips,
having irow no other counsel than the joriKa
and equity of his demand. And as in duly
bound, he shall never be wanting, either in ac-
tion or speech, to shew his grautude for these
your lordsbi^is so just and noble fsvoiin.
To the foregoing Petition, this (bllowiiig Au-
lordi having called sir William Balfour, (the
witness vouched by Mr. Rauisay) and hrvd
biin, but cuuld not prove what was nlledged.
The second port concerning llie electiun <u
arms, tbe lords thought it was not lit to be
granted, the custom of this court being nihrr-
wise, and other arms being already assigned
by the court.
On the 10th of April, Rea and Raniay ap-
-peared again before the court, sitting ia tti*
council chamber at Whitehall ; at which aiot
tlie lord high constable and the earl manbal
signified to the parties, that it was the king**
plensurG, for certain just and urgent causes, la
prorogue the day of combat, from the 13th ol
April to the 17th of stay ; and tfaey pronged
the same accordingly ; and required Res and
Rsmsay to appear in Tutile- Field >, iipon to*
day last assigned, at the liouis appointed ia die
tiirmetday; for the performance whereof, both
the challenger and the defender produced tku
aiS] STATE TBUL5, 7 Chailes L
•even] lurelics, aod tbe caaduu aad garetlea
for the former day were by the court remitted.
Tbe lurd R«a desrert to know the pleasure
of the court, whether he miglit uiiH derensive
arm* ; aud in caw he might, whether accord-
ing to his own discrciion, ur as ibe court iliall
regulate'.
The judges pf the court answered, that the
oSeokire weapons and their diinensions were
assigned h; tbe court ulre&dy; bnt buth par-
ties mii^ht Ube defensive weapons at tbeir awn
May the I9tb, the court reassembled, and tbe
imtieK •ers called, and amncred to ibeir
Then the conttable, to^etlier with tbe mar-
ahal, declared, that upon bearing and eiami-
tutlion of thfs cause, they had not found David
Ramsay guilty pf treason, nor nas tbe treason
intimated maae nppe.u- by the lord Sea, Chough
be bad so long time attempted it ; yet they
ibiiDd ibai he bad seditinusly committed many
t:ODtemfCE agniait bis m&jeity, the reforcDatioii
wbereol bis majesty reserved (o himself; aod
therefore the coart decreed, that tbey (the said,
lotd Rea and Duiid Hamsay) should both be
committed to tbe Tower of London, till by
sureties to be ap|>roied by his majesty, tbey
gkv« in sufficient caution, ihnt neither in their
.own peraon nor bj any in their fiiniiiies, nnr
bj their procurement of assenl, they would at-
tempt any thioK one agaiou the other, and that
•D ioog, till it seemed good Ui his majesty to
Mt ibaii at liberty; and so tbey were both ar-
rested by order of tbe lord consial'le and luar-
«hal, and by Serjeant* at arins delivered over to
tir William Balfour, lieutenant of the Tower.
Then a letter was brought from his majesty
by Ricbard St. George, king of arms, to the lord
constable and maralial, by which hii majesty
ivwked bis letters unients, given to the said
lords for tile tiial of this cause, not willing to
bare it decided by duel. And so there was
Dotbing more done in it.
On the 8tJi uf May this year, [J63S] a pe-
Tiod wns pnt to the great trial in the court of
honour before tbe lord high constable, and lord
manhal, between Rea and KantsHy.coDceming
tii« foremenlioned accusation of high treason
gainst marquess Hamilton, which begim lo
hwe a hearing in Nor«mbtT tbe last year, and
«M now decreed by that court in this year Co
be determined fay combat : which in regard it
m » trial remarkable oiler die proceeding of the
aiil law, we hire given tbe reader an accouut
tbereof at large. However, take bis majesty's
tbongbts of it, as it is expresied in this letter Co
the imtrqueis.
" Jontet ; Since you *ent I hare not written
to yoa of Mackay's business, because I neither
deaite to prophecy iKir write half news ; but
now seeing (by the grace oi God) what shall be
the end et it, I have thought tit to be the lirGt
■dvertiser of it to you. I doubt not but you
have beard, that (after long scdcing of proo&
for clearing the butineis as mui^.as could be,
and formdities which could not be eschewed)
I CSI — agaiui Mr. David Ranaty. [514
the coinbat was awarded, day set, weapcois ap-
pointed: but having seen and considered all
ibaC can be said on eiclicr aide, bb likewise tbe
carriage of bodi the mien, upon mature delibe-
ration I bate resolxd not (o suder them to
G^ht. Becauie, lirsi. for Mackay, he liath foil-
ed ill much in bis circumsCdntjal probioions, ««•
Eecially concerning Muschamp, uponivhom ha
uilt as a chief witness, thnt nobody now is any
way satisfied with hit accusations. Tiien fur
David llamsey, though we cannot coodenia him
for that that js not, j-et be hath so much, and
so often offended by bis vii^<iic tongue, that we
can no ways think him innocent, tliougb not
tliat w:iy guilty nhereof he is uccuBe<l; where-
fore I have commanded the ci>urt shall be dis-
missed, and combat discharged, vith n declara-
tion to ibis purpose, that though upon waut of
goodproof the combat was necessarily swarded,
yet upon tbe whole matter 1 em fully satisfied
that there was no such treason as Muckay had
fancied. And for David Ramsey, though wa
muit clear him of that treason in particular, yet
not so liicin chegenenil, but ibnthem'ghtgive
occasion enough by his tongue uf great accuga-
lion, if it bad been rightly placed, as by his
foolish presumptuous carriage did appear. —
This is the subtance, and so short, that it is
rather a direction bow, to Ulieie others, than a
narration itself; one of my chief ends being
that you may so know Dn>id liatasey, that
yiiu may not have to do with siicli a pest as be
is, suspecting he may seek to insinuate himself
to you upon this occasion. Wherefore I must
desire you, as you love me, to luire nothing to
do with him. — To oonclnde now; 1 dare say
that you shall have no.dishononr in this busi-
ness; and fnr myself, I am not ashamed that
herein 1 have shewed myself to be, Yoiir faith-
ful friend, and loving cousin, Cuables S. -Lon-
don, May 3, laaa."
Chief Justice Dyer reports two cases of
Wi^erof Biitcel; the. first is Reade v. Boch-
furih, and others, 3 and 3 Thil. and Mar^, Ap-
peal of death. One of Uie Appellees pleaded
Nut Guilty, and ready to detend it with bit
body, and waged his battel. On this plea [Jain-
tiif demurred lu law, and the demurrer in law
was adjudged against Che plaintiff, wherefore he
was liiirreil of his Appe.tl against him who
waged battel, and that be should go without day.
Dyer's Reports ISO, a. The oilur is Lowe and
Kyme v. Paramour, Trin. 13 Elit. In a writ
o^ r])iht Che tenant chose trial by battle, but
when every thing tvos prepared and performed,
at the diiy and pincc appointed far tiie battle,
the demandants being solemnly .called mads
case ii given some account of the apparatus
prepared for thecombai; and Air. Vaillanc the
learned editor of the last edition, refers for more
particulars tu Minahen's Dictionary, from which
the following eitract is made :
" Combat in our common law is taken for a
fonnall triall of a iloubtfuU cause or tjoarrell by'
IIS] STATE TR£AI£, 7 CUABLEi I. l6H^t'naedingiiHAiOMr1qfaanlrs, [616
ippti^K, tuDCrwcdu appotlitasiqi
llie (word or bMtiM*, of two champvitM. Of
this you iiiQj reade ■(. lai^e, Paiis de Puteo de
re niililu-i et dueUo. A'kiut de duello. Ho-
Mman. disput. leudilium, cup. 49. As nl»o in
our Goniniiii iHwyera of £ni(lBad,naDH It Ulan-
vile li. 14. c. 1. Bnicton lid. 3. [racliiL 3. cap.
8. BriUuacapj 33. Horns Mirruurnf lusticrs,
lib. a. cup. des exceptions in tine proxinife aiiie
C. iiinmientuin duelli npud Dter. lul. SUl. nu.
41, 44. H StauKf. Pitxa of [be Crowtie, lib. 3,
fo. ITO. b. and 177 h. laiiliUiai it iinii nucirnt
Ihall ill our la*, iind much used in tinm pnsi,
■a appeiinth by divrr* praaideiits in the tiiue*
M'£dward tiie drd, and lii-arv ili«4tli: wliich
ia not yet out of use, but may be Uy the U* in
sfteattliisday.if tliedefeuduut will, and ntilkiiu
can be draweii in cooier-plee thereto. And it
it lakl iU. &l. II. 6, f. 3. tlut to uafte batUe,
or to cambat, is by Ibe civil law : but Moile
Miib it is by our common law, and at Sta(nroi\l
Pteei of [be Crowns, lb. 177. a. lait1),Tbal lliey
. abfil) cfiine anned ialo the court, and ioiue
iMue: the plaiotiefe bcgiotiea bis nppeale, &c.
■nd tfaed^ikdant pleads not hu'I'i^i aad (as
Brittoa setteth it down«j fu. 41.) utidertakes to
4^ei>d it wiib his bodie, h.c. And after, one
tabelh anutber by tbo hand, and tni the de-
fendant saitb in thismanuer: Ueare vou this,
yon liian wham I bold by the hand, »luch are
called luhn by your ctiriMiun name, (liat 1
Pieice, tttcb a j«*re, «uch a day, in tucfa a
place, lbs atbrextid munler of N. neither did
doe, uor ^oe about, neither purpoie, nor a\-
Motcd to tuch n felrxiic, as you hnve nlltfgpd.
So God me heipe, and hrn Sainls. And alictr
«lw accuser saitb ; Ileare you ihie, you mnn
whom I hold by ilie hand, nhich are called P.
by yourchriBliaD name, ynu arc penurcd : For
«o sticli a dny, such a ytwre, in suib a place,
Cdid Bucb treasun or &ucb a inurdvc, which 1
B alleged nf^iisl you, or irhcreof I clxtllei^
you. So God toee Iwipe, and hi« Saints, 'i ben
tfaeyabsjl be both lead inlu a ceruiiK pbce,
ithere bfub ftirther say, tlcare joa this, iu>-
lices, thai we I. and P. have iienht-r cat nor
llrunke, nor duue any otlter deed whereby the
law of GmI should be abased, or the law «r
the direll advanced. And fuortlraitli tllcra
•ball be an ovei or proclninaiinii made, that
■uite sbnll bee so bold but tiie coaibaients, tv
apeakeor due uiiy thing that sljull disturbe the
combat or buttle : and whosoever tliall doc
•gainst thia proclomHtion, ^all tatftr iinprisoii-
went for a yecre and a dny. Tkon they Uuilt
fiebt wiib wenpa[)s, but nut with aay imti, but
With two siHve5 or bultuHs tipt with liorop, of
pn eli hing, both of equtill leiuth, and each ot'
llient a tiUKet, and with no other weuprm may
ihe^ enter tbe lists. And ii' tlie defendant can
defend hiinselfe till after stiiiiie act, and m my
author saitb, till you may see the tlsires in ih*
firnminent, and demiiDd iad^mmt if he ought
to fitfht any ioneer, theo inu^t tliere be iudge-
mciK ^veii on the defendants side. And Brae-
toil agrecth hearenith in these wortls : ■ Quod
* si appellatui se defrDderit contra appetlantem,
' Cota die, uique ad bocua qua KoUk iucipinnt
' Kppello, ex quo appdtans «e oblignvit ad
' coDvinoendum cam. una bora diei^ caod qui- -
' dem nun liscit.' When tbe defendant doth
pleud lo the ippeale nnl gndty, and Diidertaket
to defend it with bip bodie, he mabt throw
donne bis gauntlet ur glove into the cuurt; snd
iftlie plaiiitiefe doih enter reioinder, to the
batil", tlien muht bee take up ifae glove or
gauntlpi ; but if the plainticle doih conter*
plead unto it, llicn must hecaulFer llie glove or
l^uiiilet tu lie, mid the other shnll demain in
taw or Koid him uf his appeal«, because he re-
fused liit glore or {puntlei. When they ai*
su'ome, tbey must produce mainpnMn or
pledKCi to performe th« combat or battle, (ad
then the court shall appoint ihem a day a>l
place to fight, and as ¥\a. p. 3a5. Airthcr Milh,
that the challenger shall be at libertie, bat tbi
rieleudant in the custudie of tbe inaitball, lad
(he niarsball shall nrruy theoi both at their ownt
charge, and that mutt be the night before tht
battle, for that they may be ready in lhe<^
or liifts by suntte rising. Tbe fonno of bsltk
dctcribed 17 Edw. S. et g H. 4, difitr frun
that deictibed by Bractoo and BrittaB, sad
that described by E>ier, Tennino Trinitati%
anno 13 tllii. as bee sets it dontne tttweeaa
,one Cheuiti and anolh^ Caraiu<iur a Keatiih
gentleman, abnal the triall of land, and le\-ving
a hue tliereof; and on tbe iupe Patanour
chose tbe triall by cnmbat or battle, and bad a
diampioii one George Thorne a g«ntieDiin of
Kent Slid no rionbt his detu«st 6i«id, that
would enter i be lists tu such n bazaid of hft^
&c. And the otiicr bad one Henrie Nailer a
matter of fence, and ihe couit amrded riw
battle, and the cliampiona were muiiiprisMl
B (QUKT
iuramtnii) to pw-
farmc tlie cumbat or balde, apid TouJuli >a
Wcsim. 18. luiiij. pros, post crast. Trinitat.
which was the first day of i he Ttes of the lenac,
(LDd on the duy appointed wos there a list tand*
foure-squirc on even nound, every squat* W
liMi, ami East, West, North, andSouth: tnd
the place and seat of tbe iudges was made witt
out, yal close upon ihe lisis, and a banc made
frir tlie ■urgesnis at law, ' et circa honiin dfcr
' amm eiusdem diei,' three tusttcet or iadues i^
tbe Common Pleas, vit. Dier, Wetioit, Harper,
(tlic limnh, namely Wdab, « as away by rcMM
he was sicke) did repaire to the place in tfanr
roabas of scarlet, with tbdr other habit* and
coiles, and tbe seigeanis at law also : and ihrte
a {AwJamatloo being made witli three Oyel^
the dcnvindanis were firat called Ibr, and ihaf
came not. After that, thcmaiDpanann of the
cbuinpions were railed to bring forth £ist the
cbBoipianofthede[naihlDntorchal<e<<icr,wbicb
came iato the place in rugged sanmlt, bn*
legged &«in the knee downwani, and b«M
headed, «nd bare atmea to the elbow, bsing
briingbt inby the handoraknlght, sir lenxM
Bowes by name, who earned a red faastoa,of
an ell loug, tcpped with borne, and a yeoiaaii
cwryinglhe talyet, made of double lentlier, and
tbey wet* brought in at tha north side cf the
M7] STATE TRIALS, 7 Charles I. i6Sl.~ogaiut Mr. Dapid Rainay. [518
lian, ind wemt about tbe M4 of the liit^ untill
<fae DUtMnt of ttie luls, and llien cams lonurdt
tbe Lure befcir« llw iuclge<, with Ihrre mifmne
(wngiee, biwI lber» wm liee made to Mand ai
tbe toutii lida of ilui place, Iwing tlie riglit side
of tb* conn. Anil afier Ihni, ihe otirefchtiia-
pan vos brougliiin, in lik« mnnDor, at the
BSutli or coutniry lide of ihe lists, with like
caapa &c. by Hit hand) of sir Heriry Chsne;
]c*%li(, Ate. and wa* set on ibe ni>rtli tide of
tWbHna(qiaile0ppi>>ite 10 ibeolber champion)
fiait nru sergeants bni^ of couniell of each
panie, in the luiddest t«tii>eene iheni ; This
door, ttie deiuaDdani «m solnnnly called
•pine, and ap)i«at«<l not, buL mnde defiiult ;
upon which default, BaFhara seiseani for the
UiutiH, pfBieth ibe court to record tbe nansnil;
wbich was done: Then Dier chiefe iusiice re-
ciun^ tbe bilefe, tlie matter, and iuue nf iha
fau^ or ooBibat, and ihe uMh' of the chou-
pioaa tu petGunie ii, and Iha prefixed dnv and
plaoe, givci .iiiiall iud^emeut af;ainM the de-
naodaoi, and ibat ilie tenant !>hBll bold ibe
land, lo him and to his lieires fur ever quiettv,
fnun the laid demandant or challenger, au'd
tbeir heires for ever, and tlia demandants and
their pledgci, ' de prmequmdo,' to tie nt the
ncn^afihaqueene, &c. And then was there
adcame procIimiuioB made, ttwt the Cham-
[lioaa arid all oihers there present (which b; es-
Umation were about 4000 persons) should depart
in Gods peace and tbe qocenea. And to the;
depMited with a shout, God sure tbe queene.
likewise, according to tbe lawes and sncient
cDstoiDt of the reabue of Engliind, 9 lacobi
Teimino Uilarij. » gentleuisn, byname Air.
Egetton, liaving cbalicneed another gentlemnn,
tHie Mr. Kubinion.for t^e killing of tbe brother
of M. Egerton, slaine in tbe Held upon a quar-
nli betwiLt (he said JU. Bfterton tiaine, and
<■» H. Mnr^n, with whom (ns it is ssid) the
■aid M. Robinson at tbe same time went as a
friesd iulo tbe field, Sec. Ttie proofcs bein^ no
■More apparent, and the defendant challenged,
&B. as by the formes of our anricnl laweEi flrst
•bore recited, it was granted bv'the judges of
the land, ibat it should be tried by conibsi :
Tbr fh>Te or gnuntlet whs cast dnwne in tbe
open onurt, cr parte protmantU, nnd received
in due fonne, er parte drjeniienlit. Tbe ontb
was adminitired soleninly, >nd pledges put in
by each parlie, foitrc sulbcient men to aiistver
for either, boity fur body. But an erroar or
Kape being made in the plea, the bill was trus-
tiated, so Uat they came not nt all to the lists.
An antsquarie, VtTstegan by name.in his booke
iatitaled, a Rewitution of iJecnied intelli^iice,
in ■Htiqaities concernitig the rnost notile uikI
refMWDed Eni;Iish nation, sets it itowne in
tkefc words, and saith thus-. " In the triall by
•iofile oombai or camp-fight,, the accuser was
with the periN of hii owne bodie to prove the
atXQsed guiltie, and by n'fliering him hts glove,
ts cballen^ bim to this triall : the which the
otberttiusl'eitber accept of, or else acknowledge
himselfe culpable at tlie crime wberenf he was
KCUMd. If it wct« a crime deserving dcaib.
then wan the camp-fight for life and dekth, and
eitlicroti liOr9«bHCl.eor on fiMii. If ibe offence
deserved imprison n< em, and nut denlk, then
•IBS the cnmp-figbt iiccompiitlieil wlten the one
Inul sabdued tbeotlier, by makiitghLin to yield,
or unable in defend himselfe, anil so bee taken
prisoner. Tlie Dcciised had ilie libeitie to
choose another in his stead, but tbe dccumt
inuM perforine it in hi^ owite peraon, and with
cqunhlie of weapun*. No women were ad-
mitted to heboid it, nor no men children under
tbe age of lliirticne yearai. Tbe priest« and
peojile that were speclaiors, did ulentlj pray
tluit the victory mif^ht^ fnti -unto the guihteise.
And if tke fight were for life or death, ■ beere
stood ready to carry away tli« (iaod bodie of
him that should b«e eJ nine. None of tbe people
ini|;hr crie, ^rike nut, make any iioi«e, or give
any dgne whatsoever. Tllia wiis so strictly and
sarrrely punisbcil at 11^ in Swevia, (n place
nppoioied for oamp-figbt) that tbe etecmiODce
stood heiide the indices, ready wiih an ase to
cut off the riglit Itaiid and ich foot, of the
pnrtie so offending. Hee that (being wounded)
did yield himselfe, wni nt the inercie of the
otlter, tu be killed, or to be let live. If -be were
riaioe, then was he carried aivay, and honour-
ably buried ; and he that aiue him reouted
more bonournble than before. Buf if being
Overcame lie were left alive, then was be by
sentence of the iudges diEclarcd utterly tuid of
all honest reputation, and never to ride on ■
horseback Qor carrie armea." Verstegnii. p. 64.
The last case ofTriiU by Battel nas 14 Care
1, li. D. tSSB. 3 Rush*. Coll. 788, CInxiot) T, .
Lilbum, (father of Jnbn Ijibum tbe Atmous re.
publican). Upon one ^iut in this cas«>. Rush-
worth records tbe opinion of tbe Judges as fol-
lows: -
" The tenant wa«ed Battel, which was ac*
cepieil ; and at the day to be performed, Berk-
ley, Justice ttiere einmined the Champions of
b<ith parties, whet tier they were not hired fur
money? And ihey confessed they were; vhich
confession he caused to he reconied, and gave
(iirther day to be advised. And bj tlie king's
directions, all the Justices were required to de-
liver iheir Opinions, whether titis was cause to
de-arrai^n theBHitelby IheseChampions? AimI
t'y Bnunsione, Chief Justice, Duvenmirt. Chief
Baron, Denhom, Huicon, J<inei<, Cook, and
other Justices, it was subscril'e.1. That tliis ex-
ception cming eller tlie Battel gaged, and
Chainpiiirs atlowrd, end Sureties given 10 pBr-
fbrto ii, oufht not to be received."
Of the Tiial hy Battel Mr. Bnrri»|ton (Obs.
on Stat. De Ma^iiis Assi^is et Diiellis et St. 8
Ric. 2) bos rollecied some particulars, and has
referred to some mrioiii passages on tbesuhject,
in the writings of English and French anlhors..
Heobstn'cson tbeludirrousne^sofsomeof the
cirGunistancci coatniued in Rushworth's ac-
count (printed in the text) of the proceedings in
this case of lord Hea and Mr. Rojiiui^. He
also relntes a stnry from GraftoD ofa citizen uf
Loudon of strong make but faint heart, wbo.
enteriog tbe liaia agaiut so sntagooist both
5)9} ^ATETKIAIS, 6 CiiARLza I. lO'i2.~PrtKadiHgt'i^aiitttUaaySI>afdd. [520
iathe BTraiguineDt of ptisonert, tfa« queatkra
' Culprit, liow niltthou be tried?' is improperly
aDswercd,BjGudunJiuycouiitrjr. Uori^nallf
inubt li.-we been, By Uod or ray.coultlrj." Uddd
lliJB BlHcListoUL- oWrves, '' A learned siltbor,
wtiu is very seldom-inisialteu in his conjeciurei,
ban observed tliat ibe proper oBswer is, ' by God
' or the country,' thai is, cither by ordeal or by
jury ; btcause the question supposes an option
iu th« prisoner. And certainly it gha some
this obserratiuD, tlut tbe trial
wealt and puny, was made drank by his friends
with the design of raiain;; his courage ; and so
fell an easy prey lo bis ndveisary. Mr Bornng-
ton could Hnd no i«ierence in the indexes tA
any bill for abolishing tbe duel by champions
on a writ of rijjht, but cilea nu entrj in the
lords' Journals, Mar. 19th, l<i29,ofsuchabill
having been twice read and reported : and ob-
lerves that it it> very retuarkable that tbe time
wbeo the Trial by Ordeal was diauied, dues not
appeitr. Cqnceming ibe Trial hy Urdeal see
^Bclist. Comcn. b. 4. c. S7, and the jil'teeiiih
I volume of the Arcljaologia, in wliii^b are pub-
lished " Same HemBrks un the dill'erent Linds
of Triiil by Urdeal whicli, formerly prevailed
in En;jlnnd, by Uobert Siudley V'idal, esq. ;"
•therein be' nunounces his inlentioo of puh-
listung " An Inquiry coDccruing the forms
and cBremoiiiea used in some nf the ontient
modes of trial in England, particularly in the
fire and water ordeals, .tha corsned, the judicial
combat, and other Judicia Dei." Mr. Barring-
ton (Obs. on Westm. the Firsi) says, " Tltat
when tbe ques>
tion gives the prisoner an optiou, his aasner
must be positive: and not in the di^uactiTe,
which returns the option bach to the prosecutor."
Doubtless the superintending providence of
God was appealed to and was suppaacd to di-
rect tbe judgment, to whatever mode of trial
recourse was had. By God and my amntry
therefore would be in con trad islinctiou fron,
hy God and ihe Battel, By God and tU Or'
deal, &c.
41. Proceedings in the Star-Chamber against Henry SHfiRFiELD,*
esq. Recorder of Salisbury, for breaking a painted Glass-
I Window in the Church of St.- Edmonds in the said City :
8 Chables I. A. D. 1632. [2 Rushw. Coll. 153.]
Tbe Information was thus opened :
Mo. Atloniev-General (sir Rob. Heath) bath
e'tbihited an fnfurmation, in the behalf of bis
iiiajesty, against Ilenr; Sheifiald, eeq. an an-
tieat bencher ofliiicoln's-Iun; fbrtaliiDii upon
him, of his own authority, tu deface a Parish-
Church in the city of Neiv-Sarum, in ihecounty
of Witts, and that iu opposition to the church
government, cstablistjed by the laws amongst
. us.— His majesty's Altoraey, iif the said Infor-
tnotiou, setluth furth. That bis majesty is in his
kiugdom, next under Christ, the supreme Head :
thai all Chucclies are sacreiJ, and both founded
and maintajncd by regal and sovereign power;
that no subject can meddle with thetn, in doiug
. apj thing fur their ornament or structure, with-
out licence of tbe bishops in their several dio-
ceses, or the ordinary for tbe time being, who
derive their authority from tbe sovereign power.
— That the party delinquent was an inhabitant
of tbe parish of St. Edmonds, in the city of
N'ew.Sarum.—Thnt in the same Church was an
antientand fair Window, cnulaining a descrip-
tion of tfie Creation ; That ih January, quinto
Caroli^ the Defendant, and some factious per-
, •uns, intending to deiace it, there met and
■greed so to do. — John Duvennnt bishop of
&ram commanded tbe contrary, and accord-
inelj made a public act thereof — But in Oct.
foDowin^, lie ^ic said Defendant got the kejs
of the Church, upon pretence lo walk there,
and then locked the door, and contrary to the
bishop's appointment, he beat dowo the said
Wiiidoiv, and uilerly defaced il ; and when he
had thus dune, he did boast and glory in Uut be
had so done, aud reported that himself was a
Defacet of Idolatry. — And fo r punishing of.
this (irest crime is this Iiiforma.tion eihihited,
by his majesty's Attorney in tliis honourable
Mr. Heme. The Defendant humbly oSat
to the cnnsidEntion of this honourable court,
that he is aged, and bas grey hairs upon him.
That among ftll the crosses of his life hitlierlo,
he doih not account this the least. That he is
this day not only suspected, but accused as an
enemy to his majesty and his religious jovero-
ment; and the thing that he is especiwly ac-
cused and charged with, is, that of brealtiv
the GU»s Window, whereunto himself giieih
tins Answer 1
That in tbe Time of king Hen. 3. this church
of St. Edmonds in Sarum whs built, and that
there was a College of prieKs there ; for there
was an house adjoining, called The Collide to
ibis day. That by the net in the time of Hen.
6, tliis college came to the crown, and tliere re-
Diained untd king James granted ii to Gouge
aud Lloyd, who altenvards granted the same lo
Bartholomew Tookey, and olhers.to the use nl
the parish of St. Eihnonds, (ogetlicr with the
advowson and free disposition of tlia vicarid||:e
there, which they have by grant from his so""
late majesty king James. ,
Aud though be did conceive tbe »id Church
S31] STATE TRIALS. SChakluI. l632.~~:fi>r brtaJdagapainUdQlutWind&a). [523
to be a laj-fee, ifet he oBerath Uili, Uiat what
-htt hull done, was not to umrp authoriC}! oter
tJw biafaop ol' Sannn, dot in oppoEitiDn lo hit
majesty't goiemmant: Bat'the paiisli Loners,
snd >uch BS ore vettry-men of the raid pnrish,
hiTft tune out of miad assembled, end miE upon
occBiNODs, in B little room railed the Vestry, in
or near to fh« charch of St. Edinouds; oiid
there they have Died, time out of mind, to
make orden, vtlietehf new nindows have been
made, diten KSts in the charch altered and
new made, and manj od»er tbinp done for
omament, and otherwise, in the same; and
thb witbcMt aiij order from the biabop of
Saruin, or anj other ordinary, for the lime
being.
For thi« Window thnt is charged to contain
the History of the Creation, he Hlisweretli,
That it is no true relation or scan at the
Craatioii, in that trH6 manner as it is set
down in tbe book of Moses ; but there are
Made and committed b^ tbe workmen dirers
&bitie» and HbturdideB in the painting of the
same Window, as that be hath put ibe form of
a little old man in a blue aad red coat, for
God tbe Father, and hath made Kven such pic-
tures; wliereai God is but one in Deity : and
in hi) ordef of placing the several' days works
of God in tbs Creation, he hath placed them
preposteroosty, the fourth before the third ;
•atl that' to be done on the fiflh, which
was done on the liith day ; and in one place
be iiath FeprescDted God the Father creating
tbe Sun and Moon with a pair of compasses in
hit band, a* if he had done it according to
some gaometrical rale).
That this wis not one of the greatest and
&ireat windows in the said church, itcontained
only four light) ; for tbe cost at first in setting
it op could not be more tlian 40 shillings : and
that which is broken i) very little damage to
the Window, and may be repaired for a very
Uttle cost.
- He cooceireth, for bit defiicing of ilit* pro-
laoe Representation of God the Father, it is
not to beinous a crime as desertea tbe sentence
i^tbis bonoBrable Court; and for hii Defence
he taitb. That be hnch for many years past
(be >eti«h down for thirty veais past) been
settled and (etobed in hisjudgment^ and thnt
«pon good and sound Butboriiiet (at he con-
cdvetji) thatitis utterly unlawful to make any
soch iliepresentations of God the Father; and
by tuch authorities as were tetout and declared
in the time of queen Elizabeth, and otherwise,
tot the taking down and abolishing supersti-
tjous Image) and Picture), especially in the
Cbutches.
ile was therenpon the rather emboldened to
dcure and endeavour the caking away of the
said Window ; and because it had been a cause
about January 1039, (wherein it was ordered
that Mr. Sherfield might. If he thought (it, take
down the said Window, and set up new gist*
far the same) he thereupon did with his staff
pick out some of the glass in that part of the
Window only which represented the Deity ;
butfor tbe doing the same through combination
with others, and by force, he denietfa tbe same:
and that he should do it contrary, and against
thecommuul of the said bishop ofSaium, and
his taid act, and letter supposed to be sent, tbit
he alto denieth, and saiui, that he had no no-
tice thereof in any part. — And to nil the rest nf
the Misdemeanours and Offences charged in
the inrormation, he pleadeih Not Guilty,' and
submitteth himself to the Judgment of this
hoti curable court.
For the King.
Selitilor General (Sir Richard SkcltonJ. For
that ilireia tUngs seem to be set forth in 'the
Defendant's Answer, which hnvt not been
opened; we that are of counsel fur the king,
desire tlnU the Answer oiay he read ; atid the
rather, because he Lnch thereby confessed more
than we bate proved, or indeed could prove
against bim.
Whereupon the Answer was read in effect
as firiloweth :
The Aksweb of Henry Sher€eld of Uncoln's-
Inn, in tbe county of Middlesex, esq. tu tbe
Information of sir Robert Heath, kt. bis
majesty's A ttotne J General.
All BitvantBges of exception to the uncer-
tainties and insufficiencies ofthe said Informar
tion totbeDefendnnt,nDWandatalltim(S9Bved:
Tliis Defendant saith, Thatk. H. 3, founded
in New-Sarnm tbe cullege of St. Eilmonds,
and the church thereunto belonging. That
there belonged unto the said College and
Church, a provost and 13 priests, which had
maintenance there allowed them. That in ths
time of k. H. 8, by the set of dissolution, the
said college and church, with tho revenue
thereof, came to the crown, and so remnined
till septimo Jacubi, who granted the same to
Gouge and Lloyd, who alienated it to Bajlie,
who conveyed the whole premises to Bnitho-
lomew Tookey, one of the defendants named,
who, in 13 Jacobi, for many good uses, con-
veyed the same to the use of the parishioner*
ofthe same church.
That tliis Defendant is one of them, so that
the right of the said church is in the said pa-
rish bneit, who areieiied thereof, as of .their
lay-fee; and the said church it exempt from
tbe jurisdiction of the bishop of Saruui; and
that they, as lawful owner*, bad lanful power -
without the bishop to take down ^r set up any
window, and tu do any other thing in r^uirin^
or adorning tbe said churcb, nnd for reformation
of Budi things as are amiss in the same,
And that he, this Defendaut, and the reit of
the parishioners being Vestry-men, have met,
and have used to meet for a long while, and
their predecessors, lime out of mind, in tbe
I STATE TEIAI^, SCbauuL leis.-.'J'toMdii^apamtllaaySlierfietd, [5U
Vtttzj-iunue, and ilwre have made orders for | JDSddiiy and inpietjr ra Akniibt; God, *nd t*
tbe taking dawn, and Mitiag up a^n, parti be dksailected ta tbo ktag, tkeK&relhitUdcn-
o( the charch. The; have takeo dooa cli
window*, the? have reuiovtd altara, nxxlkifta
bare been pulled donn, geats pulled duifa and
tiered, the pulpit taken dawn and set in. aao-
titer place ; and these aud muix other tliiuga
without qnj special licence of the king's ma-
jesty that noir is, or of hit hther king Jacoes,
or of Johu lurd bishop of Sarwm, or of hia
That at a taieeting of the said Veslif-wca of
the Mid parish, this Defendant being aae of
them, in or abuilt Januarj, 162^ it was or-
ckred, that ihii Uefendant might, if he pleased,
take rtowD the said GIbes Window, being in
the south-side oF the saiil cliucch, sa as at bis
own cast irad cliarges he would repair tlie same
with new plain gbsi. And this Defendant
being ID come to London, deaired it should be
done before his return ; and that- the glazier
might not mistake the window, be pulled down
wiUl his staff two or three of the small qunrreti
of glass, and so left it to liie church- wardens to
llut he is accused to he an opposer of hia
majesij's goverunient, Rnd of the rercrend
Insnops; and this hj the procuicwcnt of those
that are ignorant of the ining, which this De-
fendant accuunleth a very Erent BfHictiou.
He saith, That this Window, and the paint-
in|r therein, was not a tnie Hepresentuion of
the Creation ; for that it contained divets
form^ of little old men in blue and red coats,
•Dd naked in the heads, feet and hands, for the
uicture of God the Fatlier ; aad in oae place
be is set forth with a pair of compasses m hia
bands, laying them upon the Sun and Sdoon ;
aad tha painter hath set him forth creating of
the birds on the third day, and hath placed the
picture of beasta, and man and woman, the
nian a aaked man, and the woman naked in
STNtiepari, as imichaa tVom the kneeiupMards,
riaiag aut of the oiaa ; and (he UTenib day he
therein halh represented the like Ima^e of
God, sitting down, taking his rest i whateas
this Defoadant coni:eiveih Ibis to be inlse, fnr
there is but one God, and this represeuteth
seven Gods; and the Sua aad MiMa nera aot
roade on the third day, but on the feurth day ;
nor the trees and herbs on the Iburlh day, uil
on the third day ; sor the fowls on she third
day, but on the fifth: and man was not created
on the fijih, but on ttie sixth day ; not did the
Lord God so create woman na nsiog out of
man, but he took a rib of the maa, '
taken : in regard of which falsificaooas, this
Defendant deemeth, that this was tut a tine
Representation of the Creation, ihougb >t ba
so prelended, hut rather au abiMC of uui true
and lively Word of God, whidi to pull down,
ai aforesaid, cannot be any oSenoa in him,
this Defeftd^nt, as he eoncci*eth, at least in
that mnnuer as in the inlbimatioB it is pre-
tended. But ia as much a* ha ia aceofed of
humbly crHveth lewe to declare bis opia
on in the tiling itaelf.
Aud he ssitb, thai h« belJe^eih it altogether
uokwful to make the Heprisentation of the
true God in any church, or nail, or window ; .
and this he hi^Klh to aiaka appear by the
Scripture, by orthodux^ Writer^ Councils, and
Decrees of Eoipetors, and by a certain Book
of Ibe now bishufi of Sarum (Ur. John Dave-
lant) wriilea on one of St. Paul's !^pisil«s, ia
he 97th Biul98th.pagesi king Jaeaes's Deok,
utiiled bis ' Premonition to nil Chcisiiaii kii^
and princes;' (be Book of Uoiadies,«et fiutb
by authority, and therein the lltjmily agaioui
Idnlatry in. particular : That this being so fake
a Repreieutaiion, and «> proAine a settiog
down ofthe louige of God the Father lewen
times, he, this Defendant, being a pariikionar,
ibled Ihereaiitli io conscience by the
rch, hut he e
ig ri^t opposite (o it, lie was.mucb grieved
tbercal, and wislied a iong while that the saae
were removed, and yet in [e*|)«ct of himsdf
lohniiied still tu diwfiect his thouf^ts; bat
seeing t|ie diahoniMr doue \a Ciodiherehy by
some ignorant persons, (a* this Defenilanl was
iufcrmed by tlie pastor of tlie t^aid pari^) and
feahog that others night oSeiut in )dulatrv,bc
(by order of the Vestry aforeaaiA) did lakeduwit
soma hitle qaarrels of the Wind aw ; and it was
done by bimooly, without any disturbaace, and
1^ did it only m such places of tke dais as
the Representation of the Daity so falsified
was: be did it not to, arrogntetu himself autha-
rily, but asbonndtodo whache did to preserve
a good conscience ; it was not doae riotously,
nor by combination with aoy achars. And he
saiih, Thai he never deserred, laor will doMrea
sucb a bitter charge, as, tlvougb the nalice of
his enemies, is laid upon him by the said Infor-
mation. And he saith, that be, ■odoshrr of
the Defendants, were justioee of tlie peace, aad
not ahegether private persons, aad ^aj were
parishioners, and entrusted, as afeewniJ; aad
the taking down of die .Window seemed M ha
warranted by the statute of £dw. 6, and by
the ki» queea's iiiMactioas, act forih in pnat
in the firas year of her reign, wlMeehr it wa^
commaadad that all idolacroua and supeisU-
tious pictures, rsodktfts, altan, eiad oAm .
ralicka of idoh^, rapecially iu churches, sboald
be de&ced and abolishad, but the wall pre-
swved, and this to be done by the church-
wMdeas, and these injonctisns being by act of
pnrliament, tliey are still in firce, as be con--
ceivctb. And in the l»th of ^ii. in liie con-
vocation held by tlie Arcbbishope, amongst
Qiher Caaons, tbit for taking down anddcfoctag
idnlatious Pioturas and Imngea was om^ and
made an Bnick,ihBltheChurcb-Waid«ns shall
iiM)uire whether it be done accordiiigly: and
the same oid*(^ bv i4r CoDWMWtiDa, ia tb^
IstofkingJonies. lie saith. That he doth w*
coBwefianca any tmateniDen of iba ChoKBi
59S] STATE IIUAU, SCiTailuL \63±—fi»-bradaHg a pabaedGlK Window. [5SG'
iwr erer did : that ibe fwnmi Window afore-
mM whs one of the meaaest Winduwi in ibe
faid chorcli, contninin); but four ikhts, wlwreof
■II ibE glass at dm wu worth but 40t. and
all that wa» taken d»WD bjtfait Defendant, wai
oot ivortbtiiore than IBd.
■ And this DcfendaM denieth that tha Uefaop
of Saratn Mat to hiia to forbid the taking of it
down ; and dentcih that he had anj ootic* b;
mj of act, letter or moaition to the contimj,
or that any lach came lo his bandt. But this
Defrudant saith, That be oFten attended the
lord bishop, as well upon this defeadaat's oma
in the bishop'* BCcasions; aod vet
m Chfli^e, that it
■adoD* bf ibis Dcfendaot 4gaiii(t ttie biHhop'a
diTcctioM, n not true, as will appear b; Proof.
Bat Ibii D<^end«nt doth btct, what he hath
done is lawfullvdoBe; and to bH other lb«
Offences, &c. he pleadeth Not Ouill?.
Sol. Gen. Here is a ccnfeuvon of the fact,
and a justification ; and thci^A>re we mwls no
examinattons or iuterro^oriei; for ai I said
leliMc, 90 I make bold ta eb; again, that be
hath cnofessed mare thna we coald prore
a^aiasthini. The Quenion la, Whether a pa-
rahioiiw any nf bimself andertnke to pntl
down and Mt up what he conceiveth to bei(U>-
laumn, and so take upon hini tn be a reformer?
Id this Gentleman's Answer, you see how curi-
oas4ie hatfa been in confuting the paiater'lhat
u dead 100jear»ap>. (Nny, 'it bntb \x^b
Octttbcr following, he could find no oppor-
tanaty to execute the Veatrj's ntdn ; and yet
Iw saiih, thnctiy after the order, he did with
his atafi' take dowti sooie of the ^uarrrb of
ihe Window, &c. Firalj for the tnnma- uf
comioK into the dburch, we shall read n Witoen
or two for that.*
DBPOSiiioat of n^iTKUSV on the King's part
read.
fbaMx tbe 8«itOD'« Wife aaitb, That Mr.
Siierteld one out* her (her husband not be-
ing at boDie) and «H>d, WotoDn, bring tbe keji
of tbe charch-door, and let smc into tha church;
whereupon she presently brought the kev, and
<^»Bed one of the little doors of t^ church,
Mid Mr. Shcrfi^ w«nt in, and made tbe dnor
fan BBto him, aad stayed there akine by him-
adf. That when he went into th« church, he
aavt. Now, weman, gu about your bMJiWM,
while I w«lk in tbe church. That iberenBon
•be w«*t into her house, and after sfae Dad
tarried a Utile in lier hauae, her child, that wai
abroad fathering of stidts, came in, and
brought her two or three pieces of tbe Glan
Window, and stud it wa» done by a man aH in
Uacfc. Thereupon she went to a pritate door
•nd looked into the cbufch, and she saw Mr.
Sba-fidd ctanding upon a seat some four foot
■bore the gronnd, and so he slOod breaking
the window with a black staff with a pike in
^mt»io( A. That tbe Wiadow wa* broken
in eteren serial places. And after she want
by tbe some window, and saw it broken ; but
being on tbe outside, she did not then see it,
yet she heard one groan, which «he conceifcd
was Hr. Sheriiald falleii Iroia the seat wbereon
he stood, to tbe ground. And she the rather
beUeveth it was Mr. SherMd, because be af-
terwards sent 6jr a burse, and rode ,banie.
'Ihat al'terwHtdi (he window ttas bmkert by
another, and a pltol>-fijik left in it ; and direra
other windows were also broken, hut by nboa
this deponaat kitoweth not. That therefore ■
watch was set, and coniinued fora fortnigbt,
to sec tvbo shiiuki attempt lo break any of tba
windows of (he said church.
Etixabeth Baren, the Sexton's Daughter,
saith, That Mr, Sheifield cams to this depo-
nent's motbo*, about three or Tour of the dock.
in (he oAcmoou, a htde afW Michaekaaa,
and commanded her mother lo open iha churcb
door for him, and she did open it : when be wna
in the cliurch he said. Get you about your bu*
sinets; and when hei Hide brother brought in
paitof tha Ghi^i.of (he Window, saying, Sone- .
bddy WHS Hitlun breaLJng swne of tbe win-
dows of the church, she then ran out o( her
Other's hrtuse and went unta the church, aad
saw him beating of tbe ladder, nnd henrd hiai
talk to bimsdf, and therein on said to herm<><
ther, Tbatsiie thought Mr, Sherfield whs mad.
That thereupoD Mr. Sherfield came out of the
chutch, and went into the clerk's house ; and
after he bad been there a little space, be went
■gain into the said church, and balled the
door nfier him on the in*ide, but sfie peeped in
At tlie door, and saw him break the window
with his black stnf^ which had a pike in the
end of it. That the staff broke, and he fell
down into tbe seat, and lay there a quarter of
■a hour groaning; hut what hurt he had, tbe
knoweth not. That he afterwards kept his
house for a month. That tbe Window wa*-
broke afterwards, and ooe John Palmer seen
there about four of the dock in the morning.
Dr. H'eUof.Steeple-A^itonsaiih, Tlutf Mr.
Sherfield coming ibilher to keep a court-lect,
be afterwards weut with this deponent into the
church of Steeple-Ashton to- view it, and he
asked this deponent why they should bestaw
so much cost ia their winduws; and he de-
clared his dislike thereof, giving these nasons,'
to wit, That it mode ihe windows darker; anil
it was tlie occasion of idolatry: and be coo-
fetred with this deponent about tbe winilvw
now in question, which lie said he would have
taken down; but the bishop's chanodlor op-
posed him, and said. He knew no cauK why
he should, foe that it was a lay-fee.
John £yMmw> nf the city of New Sorum-
saiili, lliat be nath been thirty years n pan-
ehioiier, and two years uo be was cbureb-war-
deu of tbe parish of St. Edmund's in ihe city of '
New Sarwn ; that then tlie order was nfade,
when be was charch-wBrdeo, That he was
present in the vestry ut the making thereof,
jhat Mr. HhcrGeld moved the diatlar to the
im] STATE TRIAl^, SCham-EsT. ^65i.—ProatdiBgt agaiiut Hairy Shafield, [5»
rest that were present, and ihey all caniented
tliereutito, saving Iwo, who sakf. They desired
to have the lord bishop's leave for doing ic. To
whom Mr. Sherfieid snid. Do not trouble your-
■elvea, I will give my lord bishop satisfaction.
That the bishop 'aflerwards sent for ibis depo-
nent, being then chorch-warden, as aforesaid ;
and he »ent(o his lor.dihip, who told tliis depo-
nent. He had heard of such an order or agree-
ment to have been made at the vestry, and
asked this deponent if it were so i This depo-
nent answered, That it was so ; thatthereupon
tbe lord hiUiop said, Let it not be done, and
gave directions aad coDunandment to this de-
ponent, not to give notice of [his inhibition
therein to the rest of the vestrymen.
Prancu Vxibtrti, servant to the bishop's Re-
gister, laith. That an'Agreement was broogtit
to tbe bishop under Mr. Sherfield's hand, and
tlie hands of divers others, by Mr, Sheifield ;
and t)ie effect of the order was, as he taketh it,
for the taking duwn of the Window, in the
south porch of the church of St. P-dmond's in
the city of New Ssrum. That tha lord bishop
caused this deponent to take a copy thereof,
which, he did; and thereupon the church-
wardens were sent for, and were forbidden by
tha bishop to put the same in execution, and
made a public act thereof, whidi this deponent
It-was urged by those of tlie King's Counsel,
that tbe Answer was uot in this rightly opened,
- and was therefore one of the reasons why tliey
desired the Answer itsell' to be read. In the
Answer he justi6eth the act as well done; but
the counsel, that opened tlie same, did now
shew it so to be.
Mr. Herae. In opening the Answer, we
declined, as but an opinion of the Dcfendaut,
und from thii a man may recede: ^It was oot
(lie point in issue, iheretore we were advised
not to stand upon it ; and we do ackaowfed^e
the church to be a parocliial church, and sub-
ject to the bishop oi^Sarum.
Whereupon sif JaAn Finch desired that John
Lymminge s Deposition might be reed again,
tand it was reacl to this purpose, ' Thai Mr.
■ Sherfield said he would satis^ the bishop,
' "'Tl'ns that this was nfier the bishop's inhibi-
' tion : but this did not appear to the court. —
Sir John Finch concluded the Evidence on the
' kio^s part : the question is not what is fit to
be in a church ; the matter is, that he hath ta-
ken upon him to determine what is fit. He is
an antient reader, and well read in the law ;
but our law sailh, (and this every one know-
, cth, that hath sucked the least sweetness Ihim
the Docks of the Uw), That the church must
be governed b^ the reverend hishnps of the
churirh. That it was s parochial church be
knew well, for that himself was-a parishioner:
and though his counsel decline this, yet hia De-
fence is, that it is a lay-fee, and that be might
well do as be did, to pull down the Window.
He is well acquabted with the bishop, and yet
would never aeiire his leave in taking it down;
but he goeth to tbe vestry for power to do it,
and yet there it is his owo^ motion ; and wbea
s6me questioned their own power to do it, he
heareth ihetn in band lie will satisfy the bi-
shop. When he conieth to Steeple- Ashton to
Dr. Webb, there he saith it h a lay-fee ; for be
being a justice of ibe peace, that seemetti to
add anotber wing to bear htm up : But the
matter's not in question, it apperlainelh 10 the
ecclesiastical jurisdiction. For the bishop's in-
hibition, that Mr. SherSeld, being a veiny-
man, should not have notice of tiiis, tbi* is
utry improbable. If it had been done in eite-
cution of tbe vestry's agre^nent, wliy^then was
it done so privately, and not some of the vestry
called to be with hio) ? But to bnve the doors
shut, to do it. with such privacy and so many
colours, as reading in a book in the church,
walking and viewing of the clerk's house ; this
could pot be but tliat he feared something, and
that this WBi the inhibition.
Nate, This was a great defect in the Proof
of the king's part,- that the relator conki not
prove that Mr. Sherfield bad notice of tlie bi-
shop's inhibition : nay, he had not the act of
the bishop, which was so essy- to be had, to
shew in court,' for which the bishop, of Londoa
was much displeased, and so was tbe I.ord<
To remedy this, if it m^t be, the bishop of
I^ndon (Dr. William Laud] desired that Dr.
Lynn, the bishop of Sarum's chancellor, who
was the relator in this cause, might be heard
what he could say to this point. And he was
permitted to speak, yet could not directly say
thnt Mr. Sherfield had any notice of the bi-
shop's inhibition ; yet he mentioned a letter
that was sent to him to give him notice of the
bishop's commands to the contrary, bM it
could not be proved that ever any such letter
came to his hands.
For tic Defendant.
Mr. Herbert. Thnt the Information con-
tained seven several Charges against the De-
fendant ; for five of which,- that is to Say, 1.
That he being factiously disposed, and disatibct-
ed to his majesty's government, on his own au-
thority took upon him to .deface the parish
churchofSt.Edmond'sinNewSanini. 2. Tbat
he is an opposer of tbe authority of the reve-
rend bishops and their goremment. 3. That
he is an encom-nger and innintiiiDer of all IDch
as are ill-affected persons to their government,
and cooleuiners of their aulliority. 4. Hu
the defacing of the Window in question was
done hy combination and confederacy between '
im and ten others, Defendants. 5- That this
'as done riotously and routously with force and
' For all tliese I appeal to this honountUe
court, what colour of Proof hath heen made ;
only it hath been pfoved that the Deiendant
himself took down a little of the glass of that
Window. And there hath been some oBer of
Pruof made, that it was done ^in<t the LonI
Bishop of Sah)n'i'Iuliibiti«o. And wberet*
At9) OTATETRIAI^, S CHAitLta I. 1632.-^ bnaimg a pamledGltui Window. [690
the Mift Dr. LjDD, tha said Bishop'* Cliuicel-
lor, hull eiideavourad lo anmt Mine things nut
of coune for this lost Charge, ire shilt desire
and beseech, your lordsliipi to consider thnc tie
is the prowcutiir of tlie cause egajhst the Dc-
Jvnilaiit. For ihemnunerorthe prosecution, it
lutb been Tsri violent, iiijurioui, and iiavouring
<if malice. H? wu the man thnt went to time
Witneues and Curly other penniis, lo raise up
nnd frame a Chai^o upon llie Defendant. He
eihiliiii ■ fi>nl bill, or cauieth the some 10 be
exhibited a^insl the Derendanl, and ten others.
And then fiUleth off from all thoie ten, and de-
sireth that inoofilie defendnnis might be uit-
Dea^es Ibr him; and when he had thus dun c,
nerer used tbcm. And this, niy lord, bach been
the inanuer of prosecution.
For the taking away of the Glass Window, it
is true, we tionfess we did tnle down part of the
glass; hut for the second thing, it doth not ap-
pear that he had notice of the Bishop's Inhibi-
tiuo. And whprew sir John I'inch h&th insii>ted
upon some probabillcie* for Proof liereof ; we
hope this cause sliall oot be sentenced accurdiiig
to probabilities. Now thnugh the Charge of
those Qvc befnro mentioned be nol proved, niSr
any interroEatory administered tu proi e them,
jet we shalldcure leare to offer our Proofs to
ibo contrary to jour lonlthips considemtinns.
And first, aa to the Charge that we nre ill nf-
fected to the Churcli Government, and <in en<
couruerofthiise that be like minded, and this
tor private ends.and out of a privnte spirit ; We
uitwer,TliatMr. SherliddtheDefend:i<iLh'ath
on the contrary, in all his actions, been con-
formic to the caoong and constitutions cccle-
siaatical, the ititeiand Ceremonies of ibeCliurch
of El^huid. That l>e hath been so fiir from en-
couraging such factious persons, that he haih
beea very active in his place to punish Srpara-
IJBts. And that he did not this (in removing
ibi* little quantity of ^iaas) of lii) own head or
private spirit ; hut it is true, he conceived it to
be idolatrous, and so was it ttiou^ht by life jjaa-
tor of the church, and by all the men of the ves-
try thought fit to be removed. What we did
therefore, was no way out of a singular or pri-
vate spirit, nor our own authority, but by order
frum (he vestry; not in opposition to the church
govemmeot, or governors ; but at io respect to
the nature of the thing. Besides, all the* Ca-
nons, Constitutions, and Comtnnndb for taking
away such superB^cious and idolatrous relicki,
we shall prove, in fuel, there has been much
idolatry committed (herewith. We suy, that of
a long time there have been meetings in the
vestry by some anticnt men of the pBri^h, and
this by power from, and under ilie ecclesiastical
eovemora; and ihi^ they hnveuted to do, they
have ordered manv such thinin,and tliey ae'eed
this Window ihould betaken down by Mr Sher-
Seld, if he thoughi fit, and to set up new ulass.
We go n'A about to entitle the Te>t[; to any ju-
risdiction; we say ihey are respondent to the
bishop, and he may punish tlwm if they abuse
their power: but thoui(h thev have ni.t legally
* -■ ' ' 'etMvdom<
• jurisdiccioD, jet dtjattoli
o meet, and
tber those of his uiiQesty't learned c<
make it a crime. Yea, or No } The curate and
church wardens assented, as is required by lh«
The (jueen'fl T[ijunc(ioni, 1 F.liz. give power
to the ciinuiiissiontri and others to take away
things ot'this nature, especially in churches, pre*
sening the walls, tec. So iu the Articles set
out in 13 Elii. lo enquire whetlier tbey-were re-
iQi>ved, Yea or No. Afterwards there was the
like in ^e first ot king James ; and the Canons
contain one particular of the like power given
to the church wardens to enquire of such mat-
lers, &c.
Depositions of Witnesses on the Defendant's
part read.
Join Joi/e of tlie city of New Sarum, gent,
■aiti]. That he hath known theDefendiHit al.oTa
ffO years, and hath ever since observed him lo
he conformable to the chinch of En^and ; and
that the 'Defendant, wlien he is inlicalth nnd
M. home, is present at divine service and ser-
iaan», and thut during all the lime of tiiis depo-
nent knowing of him, giring good example by
his religious and pinus carnage untootliers; and
that this deponent hath known this .Defendant
divers times lo have received the tncrament of
the Lord's supper kneeling. — That this depo-
nent is a parishioner within the parish of St. £d-
mond's in Sarum, and a vestryman. — Ihat tiie
Vestrymen nf the >>(>id parish have mrr, and
used to tncet as often U tlie;r I'lought ht, aDd
■lied to ninke orders for reiiHiring and ndomiog
the said parish church, and bnve hitherto mnuj
times ordered the taking down of teats in tha
church, and thesctitni; up of new, taking down
of windnwB, walls, nnd pieces of (he mine
church. And this deponent rcmcniberelli, thnt
about ao years since, a new pew was erected in
the middle of the church fur the minister la
reed prayers in ; and 14 yenn since a new pul-
pit was set up, nnd patt of the minister's seat
was again altered ; there was also a new loFt
nade for rini^ing of the bdls, and thirty setits
were takrn down and new made, and a glass
window in the Towers was quite taken away;
and all this was done nitlmutanT special order
frum the bishop of Sarum, for the lime be)n|{,
or any other ordinary, and neier any doubt or
question was made thereof, — That tipon the
Ititii Jan. leS9, nt a meeting in 1 he said vestfy,
by the vesirymin, it was ordered, that (he Win-
liiQuld be taken down, and the
IS this d
ipone
for the darkness caused hy it, and for that it
was superstitious; and that five nf thestiid ve^
irymen were Justices of the Peace within the
said city of New Sarum.
Mr. Berne noted, ibni the PefMidimi's Wit-
nesses nre Justices of tl'C Peare, and such as
hnvr been mayors nf the riiy.'anil are aldermcti
there; hut the other's Witiie<«^ are pour peo-
pli;, and silly women led by Mr. Cfanikcellov.'
£81] STATE TRIALS, SChaubiI. ISM—Procadap agamt Htnry SUiaiuid, [iSt
Tbii Witneu and many othen, testified the
Dereiidaui to huTe been conrominble during kU
the time or llieir knowing him, Hnd ob>ervGut
of ihe rites and cereniunies of tbe church of
EoElaad.
Prter ThaUhtr, cl*rk, vicnr of rhe p>ri>li
church of St, Edinuud'a in New Saturn, snith,
That lie hnih known the jcfendutiE, Vy tlicipucc
nfSyeiirs lastu^i&ti ihat when he iii well, and
in good Iiealth, lie cujnctli to church, hihI liitrie |
ftayeih all (lie time of divine lerrice and !
Krman, and lioth received the Sncnuneut ul'
the Loid'i Supper kneeling. That there hui '
an order made in tlie Veitrj, where tliii depo- '
iicutwas present, for takhiu down of tlie Win-
dow in (jiiestion liy Mr. Slieificld. Tliat he
.huthfeeii the said Wiiiilowiincc it was broken;
that ibe Stnry iDCeiided ilierehy to be iet forth,
. iniiy well enough be discerned, and this, upon
his certain knon leitge, for he tuok special no-
tice thereof, upini ^Mlurday last, befuic his Eil-
niuiiinilon ; tJiat there ate no Iciteis in t<ie
WiHdiiw.afores3id,.deiCribing the K. presenta-
tion of the Creation. That it may l>c,-jinended
, for a vc^ry tiuall luaiter. That it is not lO |Ood
work OS some citlier windowi of the church.
That he hath lieretofore seen an accOnipt, made
in the time <if lleiiry 7, of Charges iu wltinK
upi certain Windows in the suid chureh, which
ave all painted }^»%i; and there wjs set ibwn
, k particular of 04 foot of glass, set up at S.1, a
foot, nn'd this Window in quettion contaioeth
73 foot of glata or thereabouts.
Nolt, I'Imt in the time while ibis Depo$itii>n
was reading, Mr. Slierlield caused a oinp of the
t.iid Window to be presented lo the lords, re-
presenting the suld Window, and all tlie seve-
ral breakin;!! of the snme, ret forth in colours
like the window itMlf, which was inspected tiy
the lords.
The Blsliopofl^n^oti at this lime took some
eicoption to the tettimony of the last Depo-
nent. Peter Tliatcher, fur tlut be suith lie kuow-
eth h« Cometh to -church, and stuyeth thpre all
the time of divine service ; wlitreashe knoweth
ihi>t tliii Thatcher hinuelf h»lh not read ull ttie
divine sorvjce in a whole year together ; he
hath iu>l done it heretofore, whatsoever of
late lie hnth doue for by respect.
Tlmt the Picture ofthe old man in blue and
reJ, is taken to be the picture of God tlie Fa-
ther, the Oeaior of Ileuveu and Earth; and
that he is taken to be thete represented crentiiip
the birds nnd lieaits, the )un and moon, and
•peakmg to Adam and Eve, &c. That, as tliis
depouent takelb it, there Rre many iiii'viBkes,
falsities and abMli-ditles contained io ihe said
Window. That he saw Emma Browne bow-
ing 10 the Window afore^nid, on whtcii occa-
sion (ihjs Deponent cum ioit in the mean ntiile)
be a^ed wliat was the cause alie sn bowed. To
uh'ch she answo'ed, I do it to my Lord God.
. Why, said tliis Deponent, wliere is he? Said
ttMMtid EtatnaBronae, In the Window, ' '
not i This d^wnent thinketli be told this De-
fendant of the Mi3ie, but tbih not rcfoenrtKr
[Iu: time when.
Michnet Macktrdl, of the city of New Sa-
ruin, gent, saith, That be hath known the De-
fi-ndaut, hy the space of !0 yean ajid mure,
during all which time be Imtb been conforiaiible
to the church of England, and duly repairelh to
tlie CliuTch and KncraiiienI, &c. That this '
Dc'pjnent knowelU he baih called divers iu
question for their Inconfaruiitj, and divers have
been accused for Anabaptists and Separatiilt
bcliire bill), and other justices of the peace in
the same city, and some of tliem were impri-
soned, Eotne bound to their good behiiTiuur,
and snme otlierwise puniEhed by bit means;
iiuH the deponent set down tbe names of tbuse
win) were called in question for lacoiirurmiiy
in particular.
Jama Pubner, of tbe city ofNew Saruit,
senior, aged about 60 years, sairh. That in tbe
said parish of St. Edmond's, for 50 yeats pax,
he hath kuovvn divers of tbe pnrisliionert lo'
have aiet from time to time in the vestry of the
said church, which is part of the same church,
Vr adjtiineth thereunto; and tliey hnre ordered
many things for reparation of the said churdi,
without the bishop of Sarum, or rmy of his pre-
decessors i and divers of the said parish sre,
and have been called, and hare been and are
restry-men of lli« siiiil cliurch, and ihey tiave
done divert tilings in the church nilhout the
bishop's leave, as UHinely, the place of reidiag
tlie Service wasalteied from out of the ctiotr,
and ap|ioinied nnd ordered by them lo be read
in the iHidy of iheclTurch, without licfeiise ftoia
the bishop : And therefore t]>e parishianeisdid
not ask laivf in ihis.cnie, of the hlsliop, to re-
move the said window.
The Biihap ^'LonJoa. Oftsn Vestries lake
upon theui tlint authority which pcrtaineih net
unto lliem, and usually transgress tlieir buuiidi ;
they were made by the bisliopi herelofore,
where they are granted and sulfered, aad io
many cases, by the common law, we.cunnot do
without them. The truth is, that tbe Arclidia- -
I tke
bishop at il
The Lord KetptT. So (or mending of a *sll,
or repairing things not well done in Oie cliarcb,
vestry-men may do it ; but when .tbty do ill,
they are to be punished.
February 8.
This day the Defendant's counsel proceeded
in reading ibeir Witnesses for their Defeace.
William Jnlopp of the city of New Sanm, '
gent., saitb. That heretofore, about 9 or 10
years since, be took iiotice of one William
I rumpeiter, wba came at a stranger inio tbe
(own; and tbi* deponent afler undentood ki'
533] STATE TRIALS, SCharlmI. lO$2,^orbreaimiga;'ai'iudGkM maAno. [53*
9 of landon. 1 do not think tli^l
MT. That this Dcfioneat hatli
d WilJUm putting off J><s hki
oburred ibe said
the Mid Wiiidow; and that Ibe Miil Willi
muter, called Beech, did knerl dovra and pra;
befbre th« Crucifix in one ofthe windowi. Tliis
Deponent harf ronterence wiih ihe mid Wil-
liam, and wrth his mid maater, the said Beech ;
and in tlieir talk they tnuch commended Pic-
tare* in Church- Windows, and praised Cellar'
mine's Writingt; wheretiire this Deponent did
coDceive them boih lo be Romish Uecustinls :
j\nd this Deponent saw the said Truinpettei
kneeling and prajiu^ towards the said window ;
and the said Beech kneeling before the Cruclfin,
beating bis bremi, which tliis dejioneDi did con-
ceive was irfolairy.
Here the Defetidanc's Counsel offered to
Kok something f> dtscliurge the Dcreiidunt oF
t point, as to ttie doing ofthe snid act con-
tniiT to the lord bishop 01 Saturn's lohibition.
WhereuDtn Mr. ^(torncy eaid, 'I'hatthis was
not worthy to beiniisted on, because they had
CDrae short in Proor af^ainst him ; But at for
Mr. Chancellor's en<|(iiring into the said oi-
fcnca done, we coueeiie it was righdydone, and
proper for him to do it; for ihnt this fact is of
■ mixt counizancc, eccleuastieil *ad temporal ;
anil tber^re, be being an ecclesiastical officer,
h wu not a fantt, but a commendable thing in
bin strictly to ea(]uire ofUie thing as he did,
■nd it ifBB ills duty so to do. And for the pre-
paring and pte-examintng of the witneases, we
.Mj, ID this case by him it was lawfully dooe,
and they were justly prepared.
The Defendant's Counsel proceeded, and
read divers Statutes and Proclnmnliuas, and
other Records and authoritieti in justiBcatiou
^ ofthe l!)ereudant'9 fact, as concerning the iiu-
ture iif the tbii^. And lirst wns read the par-
ticular lajanctiOD in the poiot, set out 1 Eliz.
Ihe 9^ Article or Iniunctton ; Chuccb-VVxr-
dens are to see tlie Cnurches kept clean, and
all loathsomeness by dust or otherwise remov-
ed ; That they Itave in the Churches ;.he Holy
Bibleandllnnitlies, late set out ih print agsiost
RebdlioiT, and other out rxgeous crimes. That
tbers be in every Church a fair Joining Tuble,
acid a conveoieut Palpil, &c. Also they shall
see that all Shrines, Cm-erings, and Cnndle-
■licks, Pii:turet, PilgriniaKes, Relicks of fiimed
Miracles, Rolls of Wni,niidsuperstitious things,
be taken away and deijiced, preserving nevei^
thelests the walln of the stone buildings of the
Windows.
Arrhbidiop <f York (Neale). The Church-
Wacdens executed this by direction, of the
queen's Viaitort, not upon their own authority.
Then was read the Article touching this
muter, let forth in tlie Book of Artidts, in the
13th year of tie Ute queen. The title of
arluch book is, ' Articles agreed upon by Mat-
* ihew Archbishop of Canterbury, and the rest
'of the Reverend Bishops, a Aprilis, IS?).
The Article itself runneth thus: Item. Whe-
iber all Shrines, Covrriugs, Rolls of Wai, &c. '
and pictores of false and feigned miracles, be
Kored and abolished.
f^ilsa
Miracles.— The cation ot J3 Eiii!. was. That
the Clmrcli- Wardens thnuld enijuire and make
prisentment of such things lo the bishop or
ordinary ; but it gave no power to tl>eni, being
but hiy ihen, lo do what they would in rerunii-
ArMuhop of York. The Iiijunctlons were,
in 1 Etiz. when the Church wnsiery much out
olUrder; and this was done liy special com-
raiasionera, and not by the Church-Wardens
po«er.
Then was read the Canon madp 13 Eliz. Ihe
IStb Cnnoii, Thai theChurcli-WHnlens shoiild
see the Church kepi clean, the Holy Bible lU
be in the Churches, and the Iluly llomilies
lately set forih agsinst Rebellion, a luir joining
'table for the Celebration of the Cotnniunion ;
and i:!l roodlofiT, woiideu crosses, pictures of
false and feigned miracles, and all other relics
of supersiiiion destroyed and demolished ; <f>e
walls of the Churches to he new nhtieJ, atid
fentences of Holy Scripture tn he written upon
them in great letters, and a bason lo be in the
Church "herein baptism is to be administered.
There was the like nmde iu 1 of king Jumes,
and S Jacolti, 1603, Cannu BSi^'iiat the Wiu-
donE of llieChnrch be well glazed, thepnve-
nieikis eieu and decently kept ; the like care
to be had fur the Chur<;h-wulls and Church-
yardd, thut tiiey ba simt in with pales, walls,
and rails, as 1)11111 been accusiomed. And the
otbcers are to see llist tlie peace he well kept,
aud that the Book of Homilies be in the church,
wliir.h spcalieth ngainst idulairy nnd supcisti-
Mr. Herltrt. The matttr before your lord-
ships in iudumeut, is the remoral of sume few
parcels ofgUss out of a C hurt li- Window. Now,
upon things thus opened, whether this be n
crime punishable in this eourt, ne humbly leave
\.a joar lord-hips to judge. But if it snail be
cooceived in bean oroninent to. the Church,
and so B fault in any lo remove it without the
bishop's leave; n-e »ay it is true, we did it, hut
not upon our own privalc head, the Vestry
agrcen upon it.
And whereas it hnth been objected, and
charged, tliat the Defendant did this to en-
croach upon the Churcli-Govemmeut, we hope
it doth not so novr appear to your lordiliijM; '
but that he is a good constunt observer of tlie
Church of E^lnnd. And for the taking duvrn
of this glass, we have shelved what ne did sim-
ply, anri not so much what Our own opinion
WHS, but as it was conceived idolatroot by
others.— If this be a fanlt, it is then because
it seemefh to derogate from the honour and
nulhority of the Chnrch and dune in opposi-
tion lo ihe bishops jurisdiction ; or else it aris-
eih out of our Aniwer, in that we justify the
doing thereof, as in our lay-fee. But we have
shewed he did not this to make a power in the
■estry aftninsl tlie power of the bishop ; n
his was an act of duty to llie bishoj- --■" -
nishable by him if it we
bishop, and pu-
C weUdouei lo
535] STATE TRIALS, SChailmI. i a32^Pr»e«edi^i agqmtt J^My Sha^. [Sao
vie do noL diTide th« power from the biihop,
bu[ ilie (]ue»tiuD is upon ttie cxerciie of thit
pooer, whether the vcstry-tnen, when tbry liave
done well, are to he reprehended ; or wlienso-
e*er they do any tiling abnul lb* church, wlie-
tbtr tliey niuM still ffi to the bishiiu for Icmef
But tliougli' this be ant aa ouL'ticc in the
nnture of it, yet it U said, that to us it i* an
ofieiice, beceuM of our Jusiificatiori ; «birb i>
nnt only dt facto that it is done, but that it is
ru^iEly dona by the mtry ta their *rt in their
liiy-fee, trliich U exempt from the bidiop's ju-
riadiction.
Tu this we ananer, That litis wa* onl^ ibe
opinion of the Defendant, it was not the iwue ;
but hi* d<S)j(>sitiun a riotto slund out in a thing,
which aflerwatds appeareth unta bim to be
oiherwiEe; he did souceive it was a Iny-fee,
iind waa their imptapiiation : and though he
said it was Exempt frum the poner of luf^reme
■uihority, the archhiihop or the king's ninjcsty,
jttlic di4 it ai ibeact ut' the Church ■\VardeD9,
which it subject to dw bishop.
For tbe net itself, the taking awdj of some
little quantity of ghiss, we haVe shewed
you the usage of the vesfrjf, what the;? have
done in ulher cases ; and if every alteration
in a church should be prosecuted as a crime id
this court, 1 suppose the court would be over-
much filled with prosccutious of this Doture.
Thus much for the Matter nf the fact; then
for the Manner of doing it, it is pretended,
that it u'na done against the bithop's Inhibition.
The Derendnnt hath denied this point upon
Itis oath, and sheweth probnbility to the con-
trary : my lord bishop had long and often con-
ference* with bim, but never spake to bim of
this ihing.
Next, for that circumstance, that by this ei-
umple of bii-breakiog the Window, some others
hare done the like; but in the Books we End
only that somebody did break tbe windows
ngain after thi), but who it was, i* not set
down. Two or three times a year lor glass
windows to be broken by accident is a common
tUni^ We find also that after thi* a pitch-
fork was found banging in the Window ; we
*ay that this was discovered only upon Proof,
and wo* not in the Pleading : >iut t)ie men that
examined tfaii, *niil that it was • madman in-
deed that came thnt wny, and threw his pitch-
fork there, and tliis might have been proved.
And shortly a'ter many m<ire glni* windDws
■weru broken, but ivhere or in what Church it
doth not appear as I conceive. And whereas
it hath been said by a siltj maid that she
thought Mr. Shertieid was mad; and it bath
been said, he went about like a madman : Wc
■Ij, tliat if hi* faitlifiil carp and mdutCry in that
city for the good thereof, if his advice in all
ibe kingdom so well known be respected, he is
not to be nccnunted a mnilman: he did not
come in a mnd and braving manner, but se-
' cretly, and this is proved by the mother and
daughter; we say the more priTately it wa*
done, the tei* offensive it was : which we *ub-
Tftit to your lotddiips, and the whole CasM to-
gether with it. Tbe Charge againtt the Da-.
tandanl is, that he did dislionour to theChtnb:
tay that the act nai to do honMr te
God.
bithop ^ Latubm. Wa* not this dooe con-
trary to lb* biahup's Iiibibiiioa? Let ne uk
tbiiqurslioii of the Defendant's cogniel. Why
did Wr. Sherficld promioe to satisfy iheBishopf
Did lie give tbi* intislactian before be did iba
fjctf Tliii I must needs declare to jour lonl-
=bips, that tfiy lord bishop of Sarum hath writ-
leii to me, and by bis letien it appeartrth lui-
ficiently haw this' mailer was carried and whit
passed about it : If it please my I«rd Keeper,.
It may be read. (But tbi* being aiit of course,
and a thing to which the Defendant oould make
no Answer, wag not approved of.} There hath
been no fault in the hiahop of Sarum; but tbe
business on the prosecutor's part hath been a*
ill fDllo«ed as ever I saw : And on tbe odw
side, by [he Defendant's counsel, as well de-
fended ; so much I mu*t taj fiir tbein.
Sir Richard SkelloH. This offence it fleaily
against the bishop'* authority ; and tbe greater
by bis Defence set forth in hia Ao*<rei; and In
what tbe Defendant bath shewed, it appeartia
he did this by his own authority. The Order
or Aitreement of the Vestif is no mura but
this ; You may, if you please, do such a tbint;
Mr. Sherfcld mayjifhe please, take down tM
G\im Window ; that is to be tindemood at
his peril, they would not siaiui to it. Thii,
especially in a man of hia example, is not to be
pasved over in these times, 1 undertake there
spirits now, that if they bad been alive
■ time, would have gone nigh to
tisve done violence to the Cberubiais; G«d
knoueth what would bare become of them!
Mr. BfTJie. As to my lord of London's ob-
jection, that it aeemeih it was done after the lo-
hibition, Mr. Sheriieldi, upon hit oath, deoicth
that he had notice of it. Mr. Chancellor hno-
self aaitb, be had not notice till after tbe lact:
He WHS oflen with the bi*liop, and he ne\'ei
used any words about It to him.
Bithop of London. He undertook to latitfr
the bishop (and the bijbop, you are to know, it
not bound to give notice to everv man of hi*
public net ;) but your Proofs are, thai the witry
have done these and these tbinn, without the
bishop; they prove matter of fact, but what
~ '- beretofiire, makcth not much (bran
vil c
nevGtneraX OVilliam Nov). WewiU
of the authority of the Vestn against
the Bishop's aulhiirity, they were at first inade
and tulTeted through n^igaice of tiK prelstei
themselves. The veitrv consists of the minister
and curate, and some lay-men, I do not say
laj-elders ; they here agree for the taking of
ttii* V'^indow down, but ilie question helh not
upon their power, it lieth opon the fact itself,
confessed by tbe Defendaot himself: and, 1'
»ay, if he had not confisssed and ptovcd mora
bgaimt himaelf than tbe relator liimielfhith
done, he might (1 think) have gone withoot IM
censure of ihit court. It i* prond by lU
597] STATE TRIALS, SChauksI. i6i2.— Jot braking a pamledGlauWindou. [536
tbere buh betn & veatry eren from the Rnt
foundation : and they have done, and used to
dodiven luch Uiings; tbev htte made seati,
pulled down ssatj, removed the place for re&d-
: ,1 : - „f ,1 *k„:- :.>p» ^u^ u.^j^
Defcndant'i WitncNCs; ud that be did it, is
oDDtcMed; but be aUsdiieth in his excute, tbai
for SO ;e*n be obierved this window, and he
took otfeDce Ht it ; he sat in a sent in the
cborch, and he could not cbooae but Eoze on
it; be could not rest with a nood conscience,
but the Window must be taken down : But in
all theM SO jaan he nercr, complained to the
OrdinBr)r; but after 90 jears he propoieth it
to the vestry ; there wei« present the cburcb-
wardois, tJte lestrj-men, and Hr. Tbntcher
the miniiter ; some were so wise as to question
vbetfaer the bishop's consent were not to be
bad unto it: To this the Defenduit saith, be
will •atblj' the bishop, but never offered to
do it : Atterwanis it is agreed Mr. Sher-
field ma^ lake It dowo, proTided he make it up
■gain with new plain glass. The bishop, hear-
ing of (bis, tendeih for one of the churcfa-
wardeos, and makes a pablick act to prohibit
the takiag of the Window down, and suspends
tb« power of the mtry, if tbe; had anj; of
this the bishop is not bound to ^ve notice :
The Deftndant mutt do it aftnwardi at hii
peril, and he toid others. that the chancellor op-
Fortbe Manner of it, when be coaeth from
I^ondoD, he went in secret manner, it was be-
tween fcHu and five of the clock, when at that
time of the year it was between daj nnd night,
growing to darkt»ea : And be went bj himself,
he took no glazier with hiai, nor anj other to
witnen liis act, no not so much as anji one of
the Testrj-men, upon whose authoriiy he said
be did it ; and thus in prirate and secret man-
ner he committed this eiploiL It n said b;
the WitDMses on his part, that some did, bj
occasion of it, commit Idolatry, hot Mr. Shrr-
field knew out of it, (for anv thing thai appear-
elh ; besides, be did not foUow the Vestrv's
order in doing it, for he broke it down, he did
DOttskeit down : he taketh offence at the painted
enors, but he hath broken it, and never mend-
ed it again: Bathe breakeib that part only
which ofeoded bim, the head and the feet : If
this bad been done iu the execation of s pub-
lick act, be would surely have hud some wit-
DMaes of it; bat be had none, he bolted htm-
•elf into the cburdi, that none ni^ht see him,
he waa not wiUing to be leen ; so it wai cUn-
dettindy done : If it bad bepit done by him
«poD the onler, he would have consulted with
the gtsziet; wherefore certainly he executed
tix own bunuHlr, and not the vestry's order.
It both been fiuther said, tn eicuse the De-
fcndant, that he may aod must do it ; but of
bow ilangeTaBs consetpience this ' may arid
' maat ba,' ii, I shall endeavodr briefly to shew
aato your lordships. He takes nntice, first,
ibat the cbuidi is a lav-fre, and being in the
pnishioncrs, and himself a parishioner, that he
may therefore do it : but frou this they have
■liMdy autrted, and they may and must do it ;
far diey well know it is a parochial church, and
t is oovt t« piera k,— But yet Uwy say.
and the like, without the btsbop'i leave or li-
inse, and ^erefbre may Lake dawn this Win-
My lords, there is a great deal of di&eiCnce
between repairing andreforming: Refarmation
ought to be mad* always by the supreme
power, not bf private men : but when private
persons, or a vestry, will take upon them refor-
mation, I make bold to say, it is the highway
to pull all out of order with their rafarmation.
Something was said, aa if the reason why the
Window should be token down, was, becaiise
painting da'rkened the church: But if ihia
been ail, I should not have spoken much
" It it was done for reformattoo,
coald not bear it. ir it should
be lawful fur private men to do thus much,
what will they do next?
Nay, some hold our church is' idolation*
them; and tlierelnre these reformen
would at the next bout take away our churchei
also; this must be next. As to the kneeling
down to the windows by some; it may be
some will do so to a Saint, or qae of the Pro-
phets of theOld Testament, when tliey sec their
ticliires in a iJiurch or chapel, (as in lincoln's-
in Chapel) which if they do, then Mr. Sbet^
field must pull such windons down, or some-
body dse to whose couactence it is a trouble.
Again, because it is a Cause of Idu^atiY in
otbere, therefore must Mr. SberGeld pull it
down ; but it is such idojatry as must be cod-
cealed from the ordinary. Suppose another
man come, and say it is no cau«e of idolati]',
and tberefore it shidi stand still : That ^e;
differ first, and then they G^ for it; next '
they bare partakers on both sides, and lo an
insurrection may come of it, which has many
times taken its beginnings from less occasions
tbsntbs: And though, God be thanked, in
this caje it was not so, yet it might have been,
and may be >o,if such things should be allow-
ed, ill other instances of like nature liereafter.
Bat he may and must do it, because of tbe late
queen's Injnnctions and Articles, &c.
Tbe Injunctions and Articles ate hut to an-
thorise tbe Ordinary to enquire of sucb tbin^
lit to be reformed in churches by tbe churcb-
wardens, and other officers : and tbey are to
E resent it to thsm, and so they are to be re-
jrmed by the power of tbe Ordinary in every
diocese and jurisdiction : Aod the meaning
was, that all relics of idolatry \ni supcrttition
should be taken away ; but every memorial, or
story of a tnint aud prophet, is not a relic of.
idolstiy or superstition. Any monument of
superstition, or of ftigned or false miracle;:,
may betaken down ; hat monumcDta, or pic-
tnrca for memohals of saints or prnpbets, urn
ships, is of grafic weiglilf, «nd wfU deBcrm the
conaidcratinn of ifais Cnuit : it n broiieht hf
'5S9] STATT TRIALS, SCharlbsI. l6s2.—Proctidmgi agaiaa Henry Sheffield, [540
(rot idalaCrous or siipersticious. If they should
be 90, because some men conceire ihem so,
and then they'niay .pull them down of.their
oiTit heads, nby ihen, mnny might, and 1 doubt
not but some fierj spirits wodld, take upon
them the boldness, lo pull .dnwn all caLhedral
diurchei, because ■' - ' - ■" ""-
which some of the prtcise sort c;
nbide ; And so, became churclies stand fur Che
most part east and west, they would
them dawn, tiecause, forEOorli. tliej hol<
superstition. Bnt relormntion is, «nd bIh
hath been a work of public authority, .
some men have been punished in this co
lieretufbre, tbr oSending in this kind.
In the queen's time, many went itbroad, oF
their own heads, to break down crosses, image!,
nnd piciures of nil tons, in the 44th Eliz. At
Banbur; tbey pulled down ibe cross there.
And in the lath of king Jomes some were
brou^hnliere in tLi» court, are lenui, and sen-
t^c»l for ilie like. And by the Sentence yau
shall see what nnme is given to those men, who
pulled down crones ; I shnll read but these
two records, and say no more.
The Records were read by Mr. Robert Page;
the Recorder's Attoiney.
' By tbe Queen, a Prnclamation against pull-
' ing down r)f Imaaes and Pictures : Wherens
' many violent persons have of late of their
' own authority gone about to deface the Walls
< and Glass Windows ofChurehes, and in tbtir
' violence hare pulled down Tombs and Monu-
■ ments of noblemen, and gentlemen deceased,
' to their dishonour, and to the breach of our
• peace : Therefore « strict couimandment is
■ given that all men forbear to break the Pic-
• tures set upon combs or graves, and not to
' break the pictures or portraitures of tbe no-
' blecoen, or others in churches, chun^walls,
' windows, &c. nor any images whatsoever,
' wiihont the advice of the onlinnry, or the
• advice uf the qbern's majesty, Or her council,
• &c. Givi^ 44th Elii.'
The other Record is this :
' In Camera Stcllata anno regtii Jac. duode-
< cimo. Whereas William Dale. John Eden,
■ Hngh Jones and Richard Jackson, and other
' refractory Puritans and Browuisls, did deface
< divers Crosses in high-ways, in tbe nighl-
' time ; For this the Judgment of this Court is
' upon their confession in open court, that ttie
< said William Dale, John Eden, Hugh Jones
' and Richard Jackson, shall be bound to the
• good behaviour, and acknowledge their of-
' fence at the assizes, and every one of thesi
' pay 100 marks fine to the king's use.'
Your lordships see now that the defendant
might not do it ab be did, nor was he bound to
do it' at all ; we therefore leave it now lo your
lordships to censure.
The Sentence.
CHaaeellor if the Exchequer (Lord Cotcing'
tan). This Caoso, may it please your Idrd-
Dut tns rest are not proceeded against. His
offence, as ic hath been proved by witnesses,
and cunG-ised hy himself, is Che wilful breaking
of a Glass Window in a. church in Salisbury,
«hich window anciently stood there; and this
he endeavours to justify. That tliese, and such
like, are the acts of Puritans and Brownists, it a
nppearclh upon record. His Answer, I coa<
ceiFe, Co be against him. Chough he now quits
Chat part of bis j ustiEcatJon, and it sbeweth his
spirit. It is said be is a wise man,,Bn(I an old
man, Immed in tbe laws, and thai grey bairs
are upon him ; but it had been a better argu-
ment of extenuation lo have said he was a weak
moD, a poor man, or a mad man. He took
scandal, and it was an offence Co bis con-
science; but Ihiswus a tender and scandal-re-
ceiving conscience; he must have the window
This, and such like matters may go very h,t,
and great mischiefs may ariaa by it, as tLeie
have of laie years both here in this kingdom
and in France. He did not only do this, but
he boasted of it when he had done, as if he had
refiffmed Superstition : one Day's Work, in the
representing the Creatii^n, is set before another;
and ttie Picture of tbe little old man in blue,
must be the picture of God the' Falhar. But
this is as lit he as toafGrm, that Idolatry may be
committed to any thing, which tor ornament '
the (lalnter bath made. But for the making of '
pews in the church, pulpits, &c. this is hat re-
Sarncion, from this they come to refarmation. -
ii of the vestry, at lea»t, conceive they have
power to pull down this'Window, they agree
it shall be tDken down^ and Mr. Sherfield maj
do ic if he plense, &c. This was in Jan. laao,
5 Car. ; but ic was not done till Oct. following,
and cben it is nuC taken down, but broken
down. I veriiv believe, though it appears not
In proof, and therefore as a aon liqatt I pan it
by, that he knew of the bishop's InhibiLon.
But, say Ihay, why then should not the bidtop
speak to liim of it P He sailh ic is a lay-fee ; and
said, that before tbe fact Mr. Chancdlor op-
posed him. The violent manner of his doing
IC, is both proved and confessed. It is said h«
is a justice of peace, 1 hope your lordships will
Cake order he be justice no longer. It ia
proved he received the Communion kneeling ;
why did ihev not prove likewise that Mr. Sher>
field was baptizedf Who doubts that Mr. Sbei^
field was baptized P There was a strict inquisi-
tion to prove the fact; it was well done so to
enquire, you see the ill example of it, others
followed It. They say it was a madman who
did It; this was not proved: but it was more
like be was mad himself; it was indeed the
act of a madman, and Gl for none butmadiaen
For his Answer, I uke it to be full of singu-
larity and pride; and notwithstanding any thing
coucained therein, or in the Piuof, i hold tUi
S41]STATE TKIAI^, SChakluI. Kni.—forbrcakagapaiiiUdGUuWindow.l&a
hi* action a gKM ofleAce, an oSesce of grent
Bundal and presumptioa as to him that knawi
the Ian. If he or oilrn^ had been minded,
upun Kood advice, or iu good naj ui tia%e pre-
seuted Ibis or the hke ihin){ fit to be relumied,
to ilie proper ordinBry, or to ilie kind's nia-
jeity, being ibe supreiue head, he aiidthej
kLould have done Hell, aud have had a great
iDiny tUanbs for to dniiig: but though it »cre
fit to be removed, it wm not in his or the vt s-
trj's puner to do it. I take it, it diitbrs not
fropi ihkt case adjudged here in (Iiis court the
last day, when a great man; poor men, who
hod a Right to Common, but in claiming it
made a not, were justly punished. So here,
though this Window were scandalous, yet a
pKvate man, nor mauy private men cannot
take it down : for »ha[, as Mr, Attorney said,
ifunehaJf the tQwn would have it stand, and
tlie other half nuuld have it down, what must
follow but insurrection > So that here ii in this
a great deal of disobedience, and that done in
tlie iioguhriiy of his spirit in contempt of the
Church; Le baib thereby touched upon the
r^al power, and encroached upon tiie hierar-
chy of the bishops, who have their authority
from ibe king, f cume now to my Sentence ;
' I niil hate him to be no more Recorder of
' this dty, Tim; he be hound to the good bc-
' haviour. TImt lie make n public ackuowledg-
' ment of his bult in that Church where his
' fact was done, and in the Calhedral Church,
■ and that he may pay 1,000^. Ikie lu the Ling's
' majesty.'
Lord Chiff Jaitiee of the Ci>mmon Pleas
(kir KoberC k'teath). In this cause, brought by
iDfonaation by myself, wlien Iwas hismajeity's
Attomey-Gaueral, against Mr. Sberheld and
others, the relutor hath unly proceeded HKBiiut
this one Defendant. Upon nil (hot hath been
said on bolh sides,. these thin^'.s come to my
cCD^deratioo, the fact, and the circum^lsncea
of Bg]^rBvtuion : for the first of lliese, I shall
agree it to be an oSence ; but I shall not agree.
. in the manner of iiunishiiient, set hyuiylord
that spake last. I dare nut give encourage-
ment for any private man to da any public
thing in church or conunonwexilh of bis own
authority, it is a verv pernicious and dangerous
thing; but yet I shall not seiktence him fbr
■ome ihiugs, which in the lirst place I shall
make mention of.
1. That he should do it by Confederacy. and
Conapiracy with others, and tliat riatously : it
is true, it is thus charged iu the Bill ; but this
is not proved, nor any other, than Mr. Sberiieid
bimielf ptotecmed. I mutt confess, I w»b in-
. formed that t)>e Cause was much fouler than it
ia, and many others nere suspected lo have an
hand in it; and this wa* the reason of the
. Chatse iu the Information.
9. It may be he bwkjuit scandal nt this
peiMitiiius Window ; and had he only moved it
■t the vestij, this alone had not been so great
a.faalt,if he bad done accarding as tlie Vestry
S. That he did it caBtrary to the couu
and direction of the bisliop; but this I dare not
sny is so fiilly proved, as on it to ground mj
Sentence, tbou^rh I verily think, as to my own
private satisfaction, he could not but know nf
the bishop's Inhibition. However, seeing it ■•
not proved, (though if it had been carefully fol-
toned, I dpubi not but it might have been made
appear sufficiently; for the bishop of Stdisbuiy
himself, and mnuy oihers, might have been
examined in it) I pass it over a* a thing not
maikifesl.
4. That this whs done out of the spirit of
COD trad ictiau, and in upposiiion oftheChurcb-
GovernmeDt : I condemn bis rashness and bent
of spirit in doing it without the bishop; but I ,'
cannot perceive that it whs dune to oppose the
bishop, or ecclesiastical government, if this
had been' proved, or did appear in his actions,
1 should liave occuunied it the greatest matter
ngaiost liim ; OS for his iuward thoughts, I dare
A. That he did this iu a prof^ue manner, and
that it was a breach of piety towards Uori. I
must confess I think not so, hut rather thai iIm
ofience was fit tu be removed ; he was nieved,
and liis coliscience [ifFeiideii.at it; and I vnily
thiok, if the bishop had be^n told of it in a de-
cent manner, ha wotdd have reformed it.
0. That it was done riotously ; but it is clear
there nas no riot in the manner of doiog this
thing : and so I hold this no aggravating cir-
cumstance, he did hut satisfy his ill-grounded
7. That when he had thus done, be boasted
of it; this appeareth not.no man seeth this
proved t nay, in his answer, opened by his
counsel on his oath, he snilb be accountetb it
a great cross lo him, and is very sot>^ for it.
As lo bis place and authority, his wisdom
and fruvity, and his profession, these etiruae
tiiip not, but rather increase his fault. As to
the colourable pretences by him used iu acting
this business, I do not lake these, or his secret
going about it, to aggravate his fault; I think
Vestries have too great power, and often take
iiponUiem'to do things b^ond their power;
and yet I know notliing to the contrary but the
reverend bishops may abridge that power when
ibej will. As to this action of his, I find that
he did it not ' contra voluntatem episcopi. Bed
■ praitcr ;* that he was the first mover of the
matter to tlie Vestry : this is not a fault in him,
I thiok, but weU done of him; and yet wlicn
the vestry bad done this, and the Defeudant
executed their order or agreement, 1 do not
see, but the biiliop, if ihey hud done ill, might
have punished them. Give me leave, 1 be-
seech your lordships, ts speak thus much: a
joJiia must not speak his own imaginations,
but according to Proof; he is bound ever id
give Sentence lecuRifatnjvrofwfd, aat probabiCia.
That he undertook to sstisfv the bishop, this I
think is proved by one single Witness ; but yet
this action of the Defendant, I conceive to be
an error in the Defendant. The Vestry (he
should have known) are but private men, and
'Itafe no jurisdiction to refitim, whatsoever thej
548] STATE TRIAI^, S Chabi^ L 1032.— ProemlH^ ^gonM Kenty SkijSeU, {Hi
liSTC don* in mntcen of repair beretofote. But
if tbii, or lucb like thinp ibould be permitted
in the Church-gaveriimenc, to be done upon
priiaie nuiboricjr, why ihuuid not th« liLie men
do the like in the commonwealth? nnd than
ne should be at nn evil pais. We rend
leviLpt
Booli of the Judge* of Isrne), when there wr
no king in Israel, prirate men did what wns
(ood in their own eyes, and many erruaeous
ihiugt and elaughiers fell nut thereupon.
Tliere was caute, I nm satisfied, that this
Window ihould be removed. It wa* made for
the Picture of Gud the Father, and so it whs
generally conceived to be : but [hough it was
idolatrou*, and iheir bowing to tlie aooie was
conceived lo be idolatry, they sbould therefore
have told the bishop of it ; which Kein|r neither
Mr. ShetEeld nor the Vestry did do, he is not
in Ibis to be excuied. 1 shall therefore agree
to aentence him for ihi* fault; but I shall tor-
bear to put him from liis place of Recorder in
the aaid City : it is not an oHence m him as
Recorder, nor as Joiiice nf Peace. 1 hold
every man that is sentenced should, as near as
may be, be sentenced to meJo ^uo offendit, and
therefore I ttiiuk tiot lit that be be put from
either of his placet, for else we should for ihis
one offence censure him as worthy to be Cut off
' from his places, and to Rood Ibr nothing. And
I shall fbrliear to bind him to the good beha-
viour, for he is a gentlcinan of reputation in the
country where he dwelleth; and I have oh-
Hrted, that a gentleman is not bound to ihe
good bebavkHir, but fur very fnul and enormous
odfences. But 1 would have him to make ac-
knowledge ni of bis Fault unto my lord bishop
of Salisbury, and before such a^ he shall call
unto him : and 1 wiuld have him givt some
wUiifflCtiun, and this in the very kind that he
hath oH'ended, at the discreiinn of the Bishop.
For tlie Fine of 1,000;. set by my lonl, that
ipake last before iiie, I holil it to be Ino much
for an error, beinE there appeareth no ci>n-
tamiit : I shall iberefore think, and so set AOO
marks to be enough,
LardCktef Juiticc of (he KingVBeiwh (Sit
Thomas Richardson). My lords, Mr. Ailumey
General is phtintitf against Hrnrj Sherfit-hl. e-q.
W« are oot to take notice of any more Drfeii-
dants, because they are not proceeded agninrt;
ior thia cause, my lords, I bold it cones Ihly
and properly before your lordships here. Tins
ii rigbtlT trimatttfUanttttuKi, Ihere be many
carer* m It; for it is of mixed cognizance, and
therefore fit fijr this court, which I ever held to
be the fireateit court, except ihe partiaotent.
lo delivering of my mind, I shall crave psf
don; if I speak any thing which shall be mis-
taken. For the Inct, (as it appeareth unto me
npos the Proofs) it ivas the breiking of a cer-
tain Window of painted glass, not one of the
greatestin the church; it wasHprnatR Window,
and it was privately done by liim wit'i his black
KiA His mtitii'e to do it wa* this, There wus
oOence in ibis W>iid<>w, iind he conceived that
it WM idolatry, or tlie cause of idohitry. The
Aboee *M, that Oed tb* Fatber ihould be
pictured therein the form of an old Duuiinbloe
and red. I hate no reainn to think Mr. SheT'
field look this to be made for God the Fsihei;
for he never was nor never cun be pictured.
Wbnkaawethhimso well? Moses himKirtaxr
but bis buck parts. But give me leate, my
lords, as for Idolatry. This worsliipping of
idols i> the grcntest sin of all others; it it a
spiritual idolntry; it is to gire God's honour
unto creatures : For the Homilies of the
Church, I think they are very escellent ihii^
(and so they are without doubt ;) and ih'.re is
an excellent Homily a^niust Idolatry: so that
Mr. Sherfield, nnd olhers, taking offence at th«
pictures in this Window, (although 1 sec not
why it should be taken lor God the Father]
they might, to avoid occasions of eiil desire,
endeavour to remove the Mme. Bat then I
hold he bhoul-.i have gone to the proper judge
that hath power. And here ! find Ruilt with
him, thit in tbe 30 years of bis continued
offence cliereat, he would never resort to the
bishop t» complain thereof: This was certainly
■ scandalum acceptum, et nAn datum.' He
should have gone to the bishop ; but for hi*
colour to do the same, by the order of the
vcicry, I think it a mere colour. Two with-
stood' tliis motion, eight or six consented lo the
Inking of it down. I marrti any question at
■II wnsmade of it; for 1 know Mr. Sherficld^i
Rs well beloved of the citizens as any man can
be; and, I presome, he might command tn
order in tbc vestry : but, [ say, the vestry hath
nothing to do to reform, it wholly belongeth to
tbe bistiop. And the pouer of the church-war-
dens, by tbi Canons and Constitutions, Is but
to inquire nnd present ; but the bishop, the su-
preme ordinary in his diocese, and llie arch-
deacon, who is ' magnuB oculus episcopi,' are
the proper a^ienls in a work of reformatioii ;
what mischiefs would else ensue? There was a
special commisaiun in Henry 6'i
who a
n tbe
; They did strange things ; but I
have seen a<:aiii as strange stories of tilings be-
titllen tbiisc bouses.
In 3i-klw. G,cBp. 10. it was enacted.TbaiRe-
fitrriiHtion in tlie churches should be made by
Archbikhiips and their Commissaries. This
was repealed by queen Mnrv, but set on foot
again I Jac. and these times' must follow the
wisdom uf an act of parliament. A^iu. of
what rianger.'us Consequence is this act of Mt-
Sheibeld'sf li these men slioDld be permitied
to be refiiiiners, tliey would reform soma things
th»c need no rcfuridaiion. 1 have seen, in soioe
churches in my circuit, some Stories of the New
eerile-
. God forbid these
should be taken away.
Themannerof hisdoiog of it I like not. Ha
did not take it down,, hut t>reHk ii down ia the
heed and feet, which offeuded him : Tliis should
have been the act of public authorily ; be piv-
vumeib to do it in tbe church, a Mtored phiiw,
auj ever privileged : Therefore it wn* an •?■
fence to use auy violenoe ia it, thoiigk bat lo
«i] STATE TRIALS, 8CB»ttt«L 163^.— M'>r«>i'ng a pmnitdOlatsWadm. [5^
little; I sliall ibcrt-fort go between boLli, and
det SOOl. and iinpriKmiiieiit uccarcting to itia
iIm wiodom
Uiiak cburcl
WT ill tliat be did it bo in prirate. He might
ntber ]iav« lakeo b glaxler with him. Yet I
bold dead;, be doth not diuiect the garern-
■MDC To ay knowledge, he hub done good
in tbat Sxj tince [ waat that dncait; w that
tbtn it netlbar beg^ nor drunkard to be seta
there. For ecdeuutkaj goeenuneat, he ii
Mitwudjj coo&nnaUa I I have been long ac-
^oainted with himj be sittedi hj me «ome-
tunei at churcl) ; be brjngeth it Bible to Church
whb him (I have te«i it) with ttie Apocryiiha
tai Commoii-PrDjer Book ia it, nut ol the
tbink io. Then is but one that proTGs hia un-
dan«king to tatitf; the btthop, And Tor the
lahibitiDa, lie had no notice of it, Tor aught is
piuvedi uajr, he eipresJj deniech it upnn hia
oath, wbetWore I do not belieie lie httd Dotice.
I'd »pe«k lonietvhat of ihe OSence that
tdcketh uponhiin,ibebreiikiDgof the Window;
I uaore myaeif, if Mr. Sfaerlield had goae ami
acqnaintul the bishop vritb this order, wbenit
wai made, this cause had been prerented ; but
done ai it was, it was disofderiy done, and
without watTBot. Thij therefore is as oSeuce
done by the Defendant; and it ia an offence,
in arroKatiiig to himself power and autboriiy
DM belpogiitt to liim, and his leal and good io-
icntion shairnot excuse him : Zeal must not
transport a man out of hi) catling, nor beyond
bis bounds; if it dotli, it ceaseth to be leol, it
is raabrww and botdoeia, it is (my lords) pre-
Mimption. I proceed to my Sentence, wbertin
1 iBiMt crave Lb^ty (and in all things whenever
I apeak in this place) lo use my OH-n coo'
•qence; arid I shall ever hold this rule, to
, ' aecuudum i^unn-
Judge and inflict pun ishmi
* titatem drlicti ^
For ibis Defei'dint, I think him traDSportcd
with a liKle indiscnei ztSi ; nod be wunld not
•cek remettj for his grievance of Lis ordinary,
that he might have bad leave to do tliij deed,
but TUher do it of bia nnn bend, and this fay
ealottr of the vesiry'g order, nothuig to tlie pur-
pose. Aad this, my lordi, u r«ther an error,
■a not doing what he oiiglit Cn have done, than
aDT great offence in doing what he onglit not.
My lords, this I remember bIwqts, that every
pnniditaenl here must he ' ad rciarmaiionem,
' non ad niinami' iberefbre I shall not a^ree ro
diicbarae him of bis Recordeisliip, nnr of liii
placeof JiMticeof Peacein that city. For bind-
mg bim to tbe good beliavioiir, I humbly crave
pardon to dissent from that; be i) a grate
bencher, and a learned man, and a gentleman
»ell governed hitherto, how&iever his iorfiscreei
leal transported him into thia'error. Tbia is the
first offence that eVer jou bearil of him. I«halt
apwe for bis Suhmiuion and CnnlrssiDn of his
fault to my lord bisliop oF Snli^bu^y, to be made
Iwrorc kis lurdsbip, and wicb as he shall oil
utito bim : 8u^ tay lords, for his Fine to tbe
k'ra^ l,000t. Is tvi) much, and 500 laarks i
vuu III,
Sec»etar<r WmdEbaMk^ I agree in S«iitcnce
with Mr. ChaocallorofUie Eacbequer, l,0OaA
Fine, Ackoowtcdgment in both Clmrijiea ; to
be put out of bis place, aad imprisuoed.
Secretary Cooke. His mnjestj's Atiortwy
General PlainciHT, and Mr. SlierheiJ, on snUetU.
geatleman, is Defendant. In my Senleiice I
shall endearour to keep a grtod tule, nhicli is
9, not to make faults where they are nut, nor
maLe them greater than in themseli es they
The Information hath chargiid seven se-
veral Climes upon tlie Defendant ; hut of aH
those, nothing bnt one, touching tbe defacing of
—\ch ornaaents, uJckeih upon him: But iiihit'
imuefap Tfaispictare was made for tlie picture
ofGodtbeFatl>er. Su ( thou^alno,! ainfeM,
wboMCi'er vriB mistaken : for Images i»
Cbnrcbu, there liaih- been Iteretdfore nraeh
tioBhIe about them. The fitai trouble tliut I'
have reed of, was in or abuut the second Nioenr
cenncil; and »e read, that imDcery, or imu;!,a
worsliip, grew up afier it had smy Gn[,t in, in
tbit laaoner.
Pint they were made far Sloiiet, to t«acb
that td tbe ey which the vrord dolh lo the ear.
Then they began to gain soate shew of re^'cteBcfl'
at their approadi anio ihem ; but B»t to tbe,
images, th« terarince naadojieto Godi Afier-
waidi they came, as we read, (out of the win-.
dowt and waJls) into liic diurch, and .at hiflt
upon die altari, and then tj> be woraliipped arid'
offered uoto. Howfaeit, this was but ■ relative,
worship, as they i*o«ld excoae it ; nav, asSr.
Ongoty de Valenua saith, they did in his lime
give co-worship to tbe lowge* with God : But-
oar Cbatcb dotii not aUsw aay adoralioii to be
girea to any image or picture wbatsoever, mir
theimsgeof Gud tlieFMbertobeinihcchuioh.
Thiststbem
picture is nn offence
.n§it,istl.c™t>,f,
of his Accusation :
tlic tnkins away uf such a
; hutin the mnnncr of do-
la of ihe ofleiice. Befurm-
in, is detbnnnlion, it ia not
lo be permitted : I sliiill ever be as ready to
Eunisli such as any. But tliat he did tlii* of
is own head, niihout leave of the church-
nantena, and agtiinst the bishop's Inhibition, it
doth riot appear to me as it stuiideih before us.
I conceive he had snine opinion that t4ie Vcstiy,
or bis own autbointy, mi^jht allow him in that
nhich be did. nnd warrant him in it ; hut be
sliauld then have dune it according to (l>e au-
tborii-r. I think lie ri.d this «ut of aliule more
leul than he ilioaeht to be in others; and I find
that be did it without acquninting the bisliqi
Iherenitri: hutil is fully |iroied that he is coQ-
formablc, and iberefiirc it doth not appear to
be in opposili
I incline t'>
s^oke hist, tht
if the reverend biabOps.
n that"'
t »ns done out of tcodcr-
ccinscirncc : yet I tny, that private nien
to male battLrict against ^bu n'iudow*
5*7] STATE TIUALS, 8 Chablm t \6S2.~Proectdiiis$ agahM Henry Sierfield, [54S
in Cliurclies at tlieir pleasure, upon pretence of |
roforinalioa, NotwitlKtandiiig, I conceive tte
danger ur viample tu encouraee attieri to break
(lowii such windoivs, will not be so {[reat, as the
occasion of iriumpbtoiU-aHected persoos would
be, if this court should too severely panish an
NTUT in pulling that down whicli the church dis^
allooeili. Therefnre an Ackoowiedginenl lo
the bishop of Salisbury, in the presence of such
other* as he sliall appoint, that lie linth not done
well in not asking liis leave, would do urcll ;
and I hold it fit it should *o he : And that he
be admoriiibed to conform himself Cu the go-
vcniuient ; hut I ncquit him (fat my pwt) of
his Fine, and all other punishment.
Sir Tkema* Jamin. Tlie cnuse before your
lordships, U upon Mr. Attorney General's Jiv
fbrrnntion against this fcntlcmnn, Mr. Sherfidd;
and it is for doini; of u thing, nliich, if ii had
been done with auswerable circumstances, bad
b«en no fault in him, ' sed bonum est ex iolegns
' causis.' So thai the not doing of this thiuf
in a riftht ninnner, niakctb it an evil ; but not
ao great an evil, in mv opinion, a* by our sen-
tence tn ruiu him. lljt it is a great error for
men to be le.ilous in their private sniriis, and
to pat iheniseires forward upon public attions
beloiiRing to the supreme goveminent. I hold
that the practical solecism, by overt actions, is
the great Ml oppoiii ion against authority. These
are to be vigdsntlj met withal ; but for this
Heotlcman, some things here spobeu mnke me
pity bis case : betides his doing the fact in such
manner as he confeaseth, there is not an^
thing die brought home upon him by tno
nessei. To speak my Sentence shortly; As I
■hall not say any thing; to encourage those hot-
spirited men, so I shall still bear and remember
thateicelleril and jutt saying, mentioned by one
of my lords the Judges, that we are tu Judge m-
Tvtutam pnAala, not probaUlia ; and tlierelbre
I agree with the same lord in all the Sentence.
Sir Henry rant. As 10 the cause, before
' this court, Ht this time, it is (my lords) a crime
ill the Defendant ; none dilTerelh from this, that
be hath done that which befitteih not his
dom and experience. I luve learned long
since, thai iunoraiicG dothnuteirilseanniTeLice,
either in church pr cnmrn'mnealth: and 1 Imld
thst thisolTence of conscience is not to eo
him; for he went not to the hiiiltop to complain
of it, all these 30 years that he was trouhled at
ii. I heard some commend his manner of do-
iiil{ it. I am uftl ()f I bat mind, be could un
know, that if he bad an order he niusi pursue
it. I must cui>li»S, 1 do admire, tliHt he
t) should be ignorant of the
&,;
t he V
o trie contrary
lEHrntu loan, a Reconler, a brncne
Parliament nioii ; I Imvc kni)»n I
^rave and wise counsel in th^it pi;
the%e niigravate his aWenc.e, -.ind aiaVr it wilful-
tiess in him. But for his coiifunniry, ai'd yei
doinii a thioE contrary to hi^ pnilessioi '
(bnnity, I trrouinl my Sentence tlie heavier upon
bim. He shall pay (I think lit) 1,000'. ' ' "
make asVnowledgraent of lusOffiracein the e»- ^
thedral Church of Sarum beftro the Biibop,
Prebendaries, and Canons, but not be put ant
of hii Recordetship.
Sir Tlnmat Eimamdt. I agree with my laid
Heath for 500 maikii ian, acknowledgment be-
fure tin bishop of Sarum only, and sach at hi
shall please to caU imto him.
Bishop of London. If there be ' dcfenio
actl,' or ' confessio ftcli,' or else two Wit-
rsses, I think any one of these three will be
_ (ufficitnt proof to conuict a man of an
offence; and 1 have ohiorved there are all
these logither, in this cause against Mr,
ShetlieLd. He confeiseth that he broke the
Wbdaws, and setteth fiirth bis justification in
hit Answer to Mr. Attorney's Information ;
and this wbj done by him with his pike-staff,
as is testified by two witnesses, such as tb«^
were ; yet they were ej'e-wi to esses, which is ■
the strongest testimony. I aui petsusded, as
I am a private mnn, that at least he heard of
the bishop's Inhibition; I do not ssy, but
i/fliaraiiliafiicti may excuse a man in such a,
case, at least a tanla, though nut a tolc per-
chance ; hut ignoraatia jurU never doth ex-
cuse : vet, because it is not directly pmved
that be had notice of the act of Inhibition,
made by rny lard bishop, I shall forbear to give
my Sentence touching this particular, the ra-
ther because he hath cleared himself efii by
his onth ; and yet I hue met with as strange
an eguirocntion in some o'latc as almost hath
been heard of, I hava not read the like; hut
seeing there is not plain proof, I must not
judge him other ihnn nn honest man.
Mr. Herbert hath defended this as well u
ever any did a cause to my knowledge. As for
Vestries, which were made and suffered 6rsc
by negligence doubtless, vet being of cuntin'n-
Boce, we cannot so easily restrain the power
which they use. I have had eiperifnce of
what I speak herein, in a parish church niihin
my diocese, St. Lawrence by nnme, there is a
Vestry : it fell Out once that ihey Could not
agree upon some election, I interposed ma
Oiiliiuirj ; I hod no sooner done this but I
was inhibited by the archbishop of Canterbury;
afterwards, by his grace's i
<>ch I <
but tJien a Prohibit ii
sent me ; so that it is nut .id easy matter to
restrain a custom.
But it is not in the power of a Vestry to
remove or displace anything in the Church
that ii .ilnubtful ; and tbnngh tliey mode an
Order, in ibis ctise , for the taking down of the
Window, yet it ivas Mr. Slierlield'i fault to go
so riisordi'riy t^ work ; his vioh nt and riotoua
breaking iniu ilic church, and upr:n a cods«<-
Whereas divers thinu-. tnuchioK his cnnfbr-
miiy hnie leen pro>ed, 1 aiu conGdent 'ipon
g'lod 'uformiiiiun. Iind the ca>i% been foilciw- d
as well as liel'ciided, fbut it was ill followed hy
them that prosecuted, and unworthy tbeir
M9] ^ATB TRIALS, SChaklmI. l6S2.~/orbmiimg a painted GlatiiFmilim). [5S0
plkceaj many more thing* migbt have been
proved againK him ; and that it would have ap-
peat«d, h« had done more harm underhnnd in
hilt pMca, than good olherwite. But fur his
trouble of coDscicnce, nhich ihould impel to
tliit action ; ii troubled not nacb, fur he tept
it ID, and nourished it until it grew, as you see,
bi a KTcat head, so that at lait it hath brought
tuin hither, even to tbe aentence of this court.
My coDEcieoce being laid at stakp, I am not
of opinion, ihnt Imngcs and Pictures w«re not
in the Church until the time of Gregory the
Oieat: nor ami of opIoioQ that the first trou-
Lie about ttwin was at the second council of
JNice^ St. Gregory, nbo was 600 ^reHis after
Christ, in his 9th book aod 9lb epistle, writ-
ten to , saith of Images, ' veitustas ad~
* uiuil, &C-' fiut iOO years before tliie, we
£«d that Gregory, aurnamed (be ' Divine,'
vtbentse called ' Gregory Nazlanzen,' when
tht Emperor laid siege to tbe city of. which be
wu bi*hop, ill his Oration to the said Empe-
nr, to move him to piiy, saiih. That the citi-
■eos, abore all their fosses, ipoillnu of the
city waJIs, ruining of their houses andtemples,
toiA to heart the puUini down titeir sliiriiei;
* El hoc acerbum,' saith be. Nat we find
ihem in the church 300 yean after Chriw,
they were upon the chalice, and that is eier
upon the aliar.
Ill Tertuliiaji's time (who was one of the an-
cientest Fathers) there waf pninied upon ihe
Chalice tbe picture of tbe ShepberH bringing
home.ths lost sheep upon his shoulders; and
this was objected against Tenullian himself,
who in his latter time fell inU> the Dpinion and
error of the Hontanists, »ho are against second
Jlairiags and Repentance after Baptism, af-
finning that no Repeiilonce is left to iiim that
sinoeth after Baptism ; agaiusi which errur, the
cbnrch used this symbol of the shepherd hring-
iag home the lost sheep.
, Again, Id the time of that ancient Father
Ireaieu*, who .is held to he the Scholar uf St.
John, they had the Picture of Jesue Christ ;
and they had it from tlie Qnoitic^s, who had
adorations niih It, and
tbi) Picture which the Ueatbens did to their
IdolGiKk. Butit bath been a distnsiefLiI tiling
U> .remove Pictures and Images. We read,
liiat the hishnp,of Gyrene bro^e ihe Victiirea
in the Churches, wluch hi* people took to ill,
that they rose ngwnst him, and nrre hnrdly ap-
Andof late times we have h«d experience of
likemilcbietsin France and die I.uw-CounCTles
about this matter. And »c kuuw what rebel-
lion* were raised in the be^QuIng of t)ie Re-
fonnstion here in this kingdom and in Ger-
many : when Carulostadius and bia company
ncni about to puU down, and dejocstbe Imatet
ID the cfaurrhes, what a stir was tiiere I If Lu-
ther himself had not come back and appeased
tbe Maltitnda by hii timdy advice, that the
wbrk of RefonMHon vra* to be left to tbe su-
preme m^isCrace*,(which was welldone of fain),
and a thing whereio he ^lieivcd his wisd'im)
much more mischief would have ensued. I do
not say these thinis to any such purposes, al
that Images should have any part of Divine
adoration.
Wheu these were brought into the Churt bn,
as sue sl3e fell to worshipping ibem, m> the
other side fell to breaLIng and defaclDg tliem,
which bred many broils j niid amooptihe rest,
one very sharp contention' by reason of ibe
prevailing of Worshippers of Images, wai
stirred in the time of Constnndne iIk Great;
for I read [he Empress gave her voice against
ber son Constantine to put him off from the
empire, brcBUse of his defacing uf the Images,
which they bod in their Churches. But for
that gross Council of Nice, (pardon me this
gross term, but tliey deserve It in my opiniua)
they decree the same lionnur was to be done
to tlie Image as to the Life, whether it were
the picture ofman, orof Gud, or of Christ.
And theu another Decree in tliat Council wai,
that a man must rather endure penury tlma do
violence is a Picture : and their absurd dit-
tinction of Lotria and Doulio, &c. Yet ihisl
sny, tliereis n great deal of diffecence between |
an linage and an Idol. But then, if men give
worship to thrmas to the onier, it Is unhiwful.
Asforttie Injuiictians In tlie qoeen's time;
this was done by public autliority, and done in
every place by their proper Judge,
And, touching the niu^r in question, I ia
not think it Inwtul to inuke tbe Picture of God
ilie Father : but it is lawful to muke the lec-
ture of Christ, and Christ Is called tlie eipres*
Image of bis Fatliej. I do not mean to ssy
that tbe Plctnre. of Christ, as God the Son, may
be made; for the Deity cannot be pourtiayeil
or pictured, though the Humanity may. I do
not think hut the Representation of God ihe
Father, (as in tlie Prophet Daniel be Is called
the Antlent of Days) bath been allowed (thoueh
Ifroneously) to be mnde, like an antient old
man -. and this tlie Lutheran pany liold too ;
but whether it be lilelairous or superitilious or
no, this I hold not to be tbe question. And I
shall crnre liberty not to declare mine opinion*
at this time, whether It ought to be removed :
but tbe Defendant, Mr. Sherfield, did this in
contempt, at least in neglect of tbe Churcb'a
authority, and the authority of the king's ma-
jesty i fnr the diurch derive their authority
Irom the king, as well as the Civility. I ihaQ
tlierefore sentence bim for breaking tliis_ Win-
dow, whether it were fit or no lo be in the
church; if it had been white glass, it would
have been the same thing lo me ; It wlis a vio-
lent and raging act, nnd Jt Is now a bubiness of
Great weight and ill cou^equenca, and iberefore
fit for Ibe timely censure of this Court. And I
say farther, if it had been tbe Idol of Jupiter,
* " But he slien-eJ his opinion, when upon his
promotion to the See of Canterbury, he caused
the same kind of Pictures to be set up in hii
Chapeli ni Lambeth apd Croydon." i Rush,
951] STATE TTUAIS. tiCiiARLuI. I6J2 — Pnxwittis* i^anuf flaiiy Sfcr/teU, tW
wortliv Lrctnrts* fit C«iobriiJE», npon tfai
4lh cfinpt' r of the Epistle to (be CtdoinBiis,
upoa ttiese word", ' Walk wisely tt^vimji ttiem
that nre witlmut,* what sAith brt Wliv iht
f er^ nine that 9t. Austin did before, that's
private man htitb neither vocetiman Our pe-
lalatm to do it ; thus if he had read s littla
farther he should have hand direction to tuve
waited wiseN, Andindeed, Ihosethatareoiit
of the Ctiur'ch ihust be dealt wisdj withal.
When jou see the^ <Iui>g>i Jo" cannot, as th*
Itraelites did nnl, deface them, fbr tliey belonK
onlj to the tupreme power. And tob ahaB
see St. Paul's practice in the ITib Cbapier «f
the Act! of the Apostlet ; be uw tlie; had Kt
up an Altar to the unknowQ God, jet be went
not to poll it down, but to teadi'tliem that
God which they knew not, even u St. Auctiu
(ir any priviite man, to deface it; and this I
'sljall proi'e and maintain bj Scripture.
Tiie Idol of Jupiter was hut as itie golden
catf which Aaron madi;, before which the Peo-
Sle of Israi-I coraTnilleil Idolatry; yet we see
udgment wns eiecutcd bv the supreme Aiii>i»-
trate, bjr coniiiaod from- God, and the tribe of
Levi was ciimtunDded to kill the Idolaters.
Then again, there was a Braien Serpent ap-
'pointed to beset Dp by the Lord himself; and
afierwards it became an Idol, and the people
committed idolatry with it ; yet none of all
Israel pretumed to break it down, but Heie-
kiah loe king did it. Also the Calves of Jero-
boam, act up at Dan and Bethel, were plain
Id'ih, yet thay continued a long time, and
were not pulled down until Josiah thb king did
it, nnd ihu he doth by his supreme power; and
the king did this by the prie&ts of the first and
second order. Both those tippear in their
Stories in the 4th book of Kings, the ISth and
93d chapters.
As for the Second Comraatidment, ' Thou
. sbalt not make anj graven Imixee,' or Picture,
WJthpelf: no, lake lieed, worship it not liow-
goeveritbe; iflboudoH make iin Imagc,'yet
thou shalt tiot worship It. But there is no
COinmaad or example fer breakinn of Images
^hen they are made) vtiihout public amhority.
You shall see thi; plainlj in that Altar set up
by the Reubenites and Gadites at Jordan, this
^as conceived by i^ine of the people to be an
idolatrous thing, at least an intention in them
to set up another manner of worship, and Jem-
salein was the place of worship only : there was
an embassage sent unto thetn.aad Phineasand
other prinres were employediQ it ; theydid not
presently fall upon them and break down the
Al<sr,lhou^ they had special and strict com-
mimd to overthrow and break down all idoliw
tmuB Hnd heathen Altars, Groves, places of
Tdulatry and Images ; but this they were Hot
to do presently, they were to tijry nntil the
Innd was theirs, in ihtir own powe~n3 yon may
tee in the Tth and lath chapters of Deut.
Biit To« will say these were for the Jews, but
out for us in the times of the Gospel. In Sl
Aocustin's rime the people committed Idolatry
with their Imajei, and many there were that
would have pulled down the linages (the causes
ofthisldohtry.) St, Au Justin ndviseth. No,
first preach them out of men's hearts, and he
cnllea upon the ministers so to do ; but yon
shall not pidl them down (saiih he) until the
Supreme Power doth it, or power were given
them. Thus, if it were Jupiter's Picture, Mr.
ShLTfitH or any others are not to pull it down
until power be given them, and Gerardus the
LuibpTan is of the sniae opinion.
The Homily aeainR Idulatrv (so much mag-
ni^ed) plainly ihewi it to belung to tbe i!i>-
prcme inagiiBvle, and has reference to such
E'ciures *• arc upon Walls ; bat Stories upon
toss W'iDdOHg were not beremeant. And as
r^r my lord bi^op of Salisbury, book of hii
afterwards advi&ed.
So I come to this which is tbe Work of tin
Day; tiiis is a violent, riotoils and prophanc
entering into the Church by luni, to breu: this
^Vindow down with his pike-staff; and as die
matter st^ndelh proved to me, it seenuth tbera
are these circumstances of Aggraratioii ^ hit
fatilt.
1. The first circumstance of ap^raratian is.
That when he went about the taking down «f
this wintlow, he went not nnto the bishop, but
chose another way. 3. He was SO years rf-
fended a^it; aail in all this lime, we think
some good spirit might kav^ nggested untt>
him heiter advice, if he would hive followed it.
3. By his Office and autbonty, hit ftqit h tba-
greater and more scandalous. 4. By his ace,
being grown grey, he should have learned »u-
dom. 5. That when he went to do tbia, be
went in private, which some have said to ba
well done, but I am not of that opinion : true,
if it had been a work of necessity is him ts
tnke it down, he might have doi^ it, bat dwn
he must follow his order, and he should iben
bare takeo a glazier with him to have taken it
down, and not brake it down with bis staflu
6. His Offence is the greater by- his office
of justice of peooe; certainly herein be "wu
not conlcivolor pacit, fiir besides the force and
violence, there might have been moch discord
and blood-sbcd nbout it, as was well observad
by Mr. Attorney. 7. By the doing of this at*
contrary to his Conformity, there haVe been
the like insolences done in the same Choidi,
for which I think there is a cause egaintt soma
of them depending in the High Commijnan
Court; there was iKe Tomb of e dead bbhop
there, his bones taken up, his skull made a
mazer in an Apothecary's shop, (as I am ip-
fiirmed) his dust thrown about, and all to bur^
a t(nncT*s wife. 8. In regard of his tenderness
of ConiciRice, which he allet^ed Ibrhlniseir:
my reason is, for that, if he were of a tender
icnce indeed ; yet in this thing I shall.sa>-
him, fbr not going to the bishop to reveal
I'm; if it were but ■ shew 6r leiiderDcn,
* Caienaat e
p.S89.
I the Cdouuiii, cap. *, 5.
iU] STATE TRIAtS, 8Ceubl»L l6Si^or brtakingfi painted Glan Window. [5H
An snclj tliere wns the Bru>r« wiHuIneafr in hi*
oSttioe, ■nd this can L« no excyw. 0. His
bait i> aggmmuil from hi ■ Profession. Jt Li
M hoaourabk profnsioti ; amt u it u a great
cieooe in > dirioe to bfnngc the law oF the
kin^doni wberCiD be' is burn nnd brad up-, lo ii
ii«boa great oSmoe, if Uhmc of the protinsion
of the law vilil^ the poor lam of the Chardh
TbM miKh t«t me 1117 10 Hr. SherMd, and
■och of his ]H«fnnon H slight the •cdenattiod
Itira and p«rMi», that there wai a time when
cfanrchiHea were as great id this kiBidon ai
joa are now ; and let me he bold to prophetj,
there will be ■ time when joo will be a* low as
6t» Church w now, if jou go «n thus to con-
tean ibe Church.
To proceed, be wen into the Chnrch. It
plcMed God to pre him ■ fall upon the place,
■nd if ii Ind not been God's mere/ he had
hroketi hi* back upon the edge of the pew.;
YK all this while these tblnes haie not wronsbt
n to anj Coafessioti that hehaib done ai
wcuted the pMr Seiioa of the Church, tlw;
-pat him in prison, and there kept him, and
wwld hare kept him, if mj Lord Bishop had
aot sent bail; and if it hM not been mr the
Uthop, tbej woaM have tamed bitn eat of his
place. And then, jnst upon the fact cont-
— :._j ■■-' ■■»• - *— -T town, and
r Lecturer
« ciecnttd Jndgment nnd Juitioe ; leaTC
*' me not to miite Opprnian.' I faara been tbe
willingcr to render this account at this time,
because fODie are read/ to slander ns, as maiiv-
tainera QfPopkb Supentition, and I know not
what. As for mj Sentence, I (gree fVh my
livd Cottington.
Lord Wenltaorlh. This is an offence, 117
lords, committed bj a men, of learning and
jndgndt ; the perstms of men and times maj
•ggTBTete offimces- Men now in these da^
nake tbcmsehes wiwr than iheir leachen;
wbereas it is said, lie did this out of conscience
I and xeal, and with an iment to honour- God,
he is out of his element. Uiiah touched the
Ark with a good intention; bat becaose he did
ihii wiihoot warrant be was tecretl; pimnhed ;
it is dot for • Dirine to meddle with' ' Uirle-
' xoift TeimnSt'Dor a Lawjer trilh dirlDit^, to
(oeero tnatten in the Church. The Vestrj
bad no power to reform, nor anthorite Mr.
Sberftdd to do this thing : and I hold it a very
L gnat beMnem in him, to jusftty his fact uMer
(hcae pretences: fer things whiirh Vesttia an-
dcftake todoof Uiemsehes, if it b^ welt done,
it is weOpf iibenot, let them lookto it. But
Ibr their frequent BDil oTdinar; trenscetiding
tlwir power, it is hi^ tuie that tbe bishops be
directed b; tbe king's majesty, to rOKilate all
toeh things, aud to redace all ihese Tcstr^-taea
btto order and obedience. I shall not forbear
to poniih an offence pf this dangerous' consb-
qtinwe upon that gronad f ' ^ - -
•CMUoa of triun^ to'so
pnnity will be mther an encouragement, tv
menuf Diher Diiods, to set their hands to iIm
like, of which there is great diuiger. I shall
therelore in my Sentence go an; thi[^ less
than anr of mjF lords here. before me haTs
done; ' That he be not any longer Recorder of
' that ciiy; that he be bound to the good be-
haviour;' 1 see no reason but a gfrnlewsA
may be hound to tbe good behaviour ; for his
public ackocmledgineot, J tliink it necossary to
be made in both Churches; and that he -pey
1,0001. fine to hb majesty's use.
Sir Boierl Naunion, master of the Cimrt of
Wards and Liveries, gave not bis Sentence b«-
eanse-be was not io courttiie last day, at the
bqpnniof! of the bearing.
lord Uta'burgh, chaneeUor of tbe ducfa/ of
Lancaster, fbrban to give hb Sentence for tbe
Viscooni Falkland agreed in bjs SenCenoe
with my lord Cottiugtoo, ' far I,000f. fine anu
•tbe king, &c.'
Viscount WiiabUton agreed in his S
with my lord Heath, ' for acknowledge... ..
' hif fault to tbe bishop, and such as he shonM
' think fit tu call to him; and to pay -a fine of
' 900 marks to the king's msjcity,^
• ^mtI of Holland. lie *tu not pietent at the
beginning of thi facadng of the cauie, mhI
tberefbre did forbear to give his Sentence.
Earl of D^nmrtire. He agroed with my
lord Cottiugton fur 1,0001. &c.
Earl of Doritt, I conceive, tny lords,-tfaat
the prosecutor of- diie came i* much to ha
blamed, and did the court Istally take notice
of a prosft:ntor, where the ksog is A party, 1
should give my vote to fine si^a roan: he
hath here made a great noise of tenible tliinp,
(seven in number) but hath not endeavoured
to prove many of^ them. I thall speak same-
wbat or the matter in qaeition that stiokMh '
upon him, and not medAe With what hath not
been proved. And fint is to be conudered
.what war done; a Windvw in n Choroh wa*
broken, 'faecnose of the laagc of God tlie Fa-
ther which was in it, in those phwasef the Jiead
and feet of the EUpi«entatioi\ of the Deity;
this, if it bad been done bytlie properja^,
bad been well done. If *Jt unUMtfUl pictores
ar.d images were utterly taken oat of the
chuTcltes, I think it v^ere a good work ; fiv at
tbe bfVt they are but vanitin and laachen of
lyes. For the Aotient of XHys in Daniel (I
take it) (his doth not give'trarrant lo fraioB a
picItueofOodlike an old man; bat it sheweth
the eternity of Cod, that be was before all times
end days, aud it cannot be taken to be the per-
tntitufe<^anyatlier: for this being made lo >e-
HciFot the Creation, it must needs be intended
tor the picture^ -of Ood the Father ; for wfakt
ntaa dio help God about the Creation? This
therefore -is u&Usrfiil, no luan ever saw Oad,
■or did he everappear in any Hkeneas to nsait.
BHt we pirturv Chiist, becMMe be took upon
him MMt's isatare, and was' man as well U
Cod ; «Bd the Holy Oboat appeansd in the-^-
niilinide of a dova ; but I wisq there wera an
S5S2 STATE TRIAI^, 8 Chauii I. leii.—Pnceedi^ i^aiiM IBmy ^Mfidi, [SU
■RMfe of tbe FiUber, neither in the Chnrch,
outofrheCburcb.
Secondlj, 1 note the mind wberewiih it i
(lone, and it was ont of a liitle too nitich a
hit coDwieiice ma lender. Thii, ir it I
beea guided neU, woalil bate been wonhjr of
pniM. I do iiot «peak ihii to iniLe as if nien
nuij lake upon them to meddle in nhat be-
loi^etli Dntuato tliern; jei there i« difference
hccwewi ■ hult done of seal, and the smbc
tbini dune out of malice.
Neit let ui coDtider the auihority ntierehj
ha did it ; and herein especiallj Mi. Sbertield
had no power. Tbe Veltrj had no poWer, nei-
ther cguld they give an; to another; tt was
tberelbre an error in him to conceire, that be-
cause thej used to meet and do things for re-
pair and omnment in the -chnrch, ihatther^re
the; might do ibis, being a piece of refarau-
tion; 1 ia.j, it was hii error lo do it without
the bishop of the place. I would not be inis-
taken, HS if I speak or did ao« thing against the
•udiurit; of the reverend prelates: fori take it,
whensoever that authority goeth down or de-
c^etb, the moonrch]' dieth with ii, 1 think thcj
«re iaMparablv joined tugether. But this was
an opinion of tils, that it was their laj-fee ; and
if be repent him uf his opinion, recnnt it, and
depart frtmi his justiGcntion, (though his An-
■ivei be otherwise) 1 shall not take upon me to
destroy a onin for such an offence. I'heo
what manner did he it ? Privately and withoat
.noiie ; and tbia 1 bold to be a diminutioo of
his lault, for lecret evils are not so bad as whi
' they are openly donl i the same evils done
chudbera, nra not so had as if they were done
.in tbe market-place. — And it cBoaot aggravate
bia ^It, that M is conformable : I say,
Opinion it was veiy necessary for him to prore
hnnKlf a conlprmitant; and being charged in
the infarmatiofl to be otherwise minded, he
did well and wisely to dear himself by proof.
[ come to my Sentcace. I shall not lenteot .
liim for three or four Papists, lior afaall I fot^
bear Co sentence him for tbree or four Schitma-
t'icks ; the reason wbf I sbull not senti
. it 10 avoid the tumults of the rude ignorant
, people in the countries wheni this gentleman
. dwelleth, where ha haih been a good governor,
ai liath been testified, and is well known, aod
BO doubt liatb punished drunkeoness and other
disorders; and tlien sach peisons shall rejoice
and trimnph againat him, and say. This you
bave for your terete Kovemment. liiit I thiilk
would be no good reward for tiis care. The
' reasua wb}' J shall senieitce him, ishecauaehe
^th erred in his manner of doini; this thii^ in
going on his own head wiibout the Ordinary, lo
a KM of this nature; and this 1 ibalt bold to
be an otfence in this D< fendant^ or a iii'taiiv-
meanour, hut not a crime. J would not hate
bim to lose hit place cherefure, nor to be bound
to tlie goixl belTHviuur: I would nalwitll^tanri-
iOK bave him luake such AcknawledipaeDt tn
tbe bishiip of Sarum, and in such manner as
b«shall think St: butldoootget an; Fiat np-
Earl of Pembroke and ^^tgemery, Lord
Chamberlain, he gsve no Sentence at all.
. Earl of Anaidtl, Lord Marshal. I £nd
fault with this gentleman for keeping ckacbii
Offence of Conscieooe, which he saitb he had
at tbii Window, by the space of 30 yeaii to-
gether; Be should in all this tine have revealed
his mind to ihe bishop, who had been able to
direct him ; but npon the matter, he go^ on
his own authority to breuk down this wiod'iw.
This bang long kept in his heart, breakethout
to deface the Image of God in, a man. Be-
sides, he leareth the ordinary, wbo bath power,
and goelh to the Vestry, who hath none ; aad
in his fanatical humoar ha pniceedath, and
brcaketh the order nf the Vestry. God gate
him a warning ; he fell upoh (he seat, and hath
bad time enough to think of it since, and in all
this time he never came to acknowledge bit of-
fence. I agree .tlierefure with my lord Coc-
tineioa.
£arl of ManehtOir, Lord Privy Seal. Is
this cause, my lords, i shall propound l*o
things to be considered, the fact itsplF, snd
tile circumstance ofit: For the lact, ibe break-
ing of the Window because nf idolatry. Ifibb
had been in a man's lav-foe, then he had been
bound (o have puUed it down ; but being in a
parochial cboicb, it it lo be done t^ tbe Ordi-
nary, or by his appointment. This therefore
being done by Mr.anerlield, upon tome opinion
that he had in the power of the Vestrv, u was
on error to him, but pardonable. U doth nat
appear that t\ia was done contrary to the In-
hibition of the bishop, ■ Non notum eat judici,
' quod non notum est judicial iter,' he had not
therefore notice of it : Formv lord of London's
■^'■''■^■V cifcumstancea, it it true, if the
thing were done, asit is charged in the Informa-
tion, then those would bealln«aiusi him; bat we
see there were causes it should be take« dawn ;
it is proved soma did adore iL How loi^ so-
ever pidurea and images hav« been in the
churches, I hold it a very otTeosire thing lo
make such a picture, or representatioo of God.
I will mention but one author, which was before
all them who were named, tlie propliet Isaiib,
' What likeness or similitude wJI jou make of
■ me, laith the Lnrdf Yet; but idiilatry liet in
the worshipping of the image. Take a wiie
man's counsel, Tlta painted picture inticetb
the ignorant to idulalry. I profess it would
bSiend my conscience tg see it, I atn of such a
pore conscience.
But iliere are three other iliingt for which I
shall censure hia. 1. His pretending tlir Or-
der of the Vestry. %. Thai ho would n^ect
authority, which it near-unio Contempt. 3.
liit pattion in doing it bnoself, and not by
otiicn. — This Cause aod Sentence hatb mimy
judges, even so man;r >* ^'^ i^ are jix^M (u
it. Ail may take notice, that our TOtea.a[l lo
mHintain order and ^Temmcnt, jet not to
U|>holil supenlition. i will be alioK, I will
■ei'ttnce the Detcndant, but not £se liim ; ' to
' make Acknowlethieinent to tlta bishop,' not
Eo tliwecordar him : Tbe fact dcaerret not a fint.
U7] STATE TRIALS, 6 Ckau-ei 1. 1032.— fir bra>iingMpaintedGiaiiWind<m>. [55S
Archbsbap of T<rk (Dr. Neale). H*7
|)1eM« jour lonlil>i|it,tlii(piit]euuui, Mr.Sher-
tieU, k iafbnned Rg>iD*t b; bi* laajeufi At-
Comej-OcDera], for entering with ftirca in
tlM church of Sc Edmund's in tbt city of Sali*-'
btH^iUid there uodertaking, withuut the Oidi-
loM Antwer opon the mmuer, he letleth forth a
Fine, be with it wu tite Ujr-fee of the
parisluonet* : but this will am Mp him, for it
M A punchi*! duiTch. Next, h« had Warrant
far wbafbe did, u he pleadctb, Tbal he did it
bv ortler of ibe Veitrj : 1 wonder what ia the
Veain, and what power and authority th* j
haref It ia a place where aiicieutlj the oma-
nentt a( the church were kept ; lince tliote
duiigi were gone, there were meetings b; ibe
jMriihKHien tu agree on matlera of repair and
■wetirDehtB, and roies for the church, und the
poor; and the; did meat lometiinei in the
church, and tnmeiimes in the Vestry, no mm
of the parith wtu excluded. AAcrwardi, to
■Toid tniBBlii and imiliiplicitj of voice*, some
bnbop* had appoibted, bj special ip-itruments
vndcr their epiKopal seals, tbut such and such,
' to a act Dumber, shoidd be Vettrj-men, and he
•o cnited, and shall order matters for the re-
pair of tbe rburch, or bread and wine for the
Cotninuoinn, and such like things, as ihecliBr)[es
•boot belli, file. And here I khitll make bold
to remember a stni^ to jrour iordahips of whnt
noMcd tietween in^ turd fiurieiih, nijielf, atid
i>r.,Bancroft, rhe Iheo binhap of l.ondoo, when
I was I'icnr of ChL«liunL ] wis then a young
ouui, and I bad an opinion that there was
•omewliat in a Veslrj; and hnd a porpose
which r Hcqnaioted inj lord and honuurable
puron witJial, to faavetume Buitii>ritj deputed
OS in our Vestrj, bj the bi»bop ol' Londun our
onliiiarj ; I had aty lord Burleif:h's letter of
commendeliani, and tperiol request Iti the
bishop fur the same. His luitlship's Answer
which he gare me was tbus: ' If wu have oc-
' ouioD to repair the church or a\e bells, to
< make raiei for the poor, and iucIj like thin^,
■ihia ynn may do; batifjou think otherwise,
' or aim at auy other power, it shall not be
■ flowed you, and yooinwllof ilie presliytery;
* therefore, I pray jou, cnmmend rac to my
< lord Ouileitih, and tell hin lordship I will net
* incur a pricmuHtre, for I linve somewhat to
•lose,"
I cond|>de: The Vestry bath bo power to
make teibnoition. nor cnn the Delendant
derive any power from tbpm ; '['berefuie, us fir
the tnatier of utfentx, the picture of Cod the
Fhther, no man e*er took upon him to paint
thceHenceof the Oeitj. But ttiequcMion i^
whetber it be hiwlul to mpreas God the Father
l>y anyrepreiientMinn i I ibiuk it not unlawful
in itself. The eternity of Alpha tuid Omega
doth appear in Christ, and Christ is the Imn^e
of bis Father. As fur those dirine HoiBilies
M the church, Ht forth in king Edfrard't days.
and that in special against Idolatry, we know
tbe times did not bear tbem : nor are they to
be taken or understood, ut not t(» alUow any
manner of pictures or images (thou^ it may
seetu so) ot Christ upon oie Cross ; hut it is
like the fbrbearine ot food for a time, as St.
Paul saith he wonU, for fear of giving oflence
or scandal unto others, who ate weak ; I i^
that' fur tbe cracifii, there may be a i-eiy good
use made of it. Aa lor the purpose, he that
shall look upon ■ crucifix not to adore ' it, or
give utj diviae woi^bip thereunto, be mOst
needs think with hinuril, how can 1 but grieve
and mourn for these sins of mine, which could
not be expiated but by rny Saviour's Uood
upon the cross? And iben Icannot but think
01 the great lare of our Lord Jesus Christ to
mankind, that vouchsafed to die for my sins.
And then, it servesto increase my conlidencein
him, by considering that he ba* i^iven hmutdf
for me, and promised that 1 shnll not want any
thing that is good for mc ; and that he will
not deny me aiy prajlers in any thing which I
Bik agreeable lo >iit will ; >o that this most
needs work a, deep impression on my hekrt.
1 thus think ; but when it cometh to be iiq>er-
iiitiout, or that some make it ■ cause of idofat-
try, I must confess, I wouU then rather want
tbe thinft, and sU tbe good uses of it, than in-
cur the dant>er of prapiigntin| id'ikiry.j That
reverend Jewel, bishop of Salisbury, in his rime
hud a commistion, and he loi.Lilovrn'all idoln-
tnius Window* in the churches, and set in
place thereof clear glass ; but he left alnne this
Windiiw; and surely,if he hnd tbout(bt it to b« <
idolatrous, he woiTlil have rcfnnned it. And
we baie tlie Creed of Athanasiut *ihich batk
these words, * I'hat Christ is of one substance
• wiib tbe Father;' therefore the Imnpe of tbc
Son in the Image of the Fni1>er, and therefom
it cannot te iiulntry simply tu make it. But
grant ihnt it was n cause of idolatry, might Mr.
tiheriield or the Ve»iry bike it down t He saith
in liis Ansuer, That nimsclf and fijur oibers of
the Vei>try are justice* of the peace, and not-
«ltoxetber pritittc men. 1 nould a»k him this
question, Wketlitr a* justices of the peace,
they are to meddle with lUfomiHtioii in the
Clwrcb } It is plain they are not ; yet, as a pri- '
vHte man, he hsth undertaken to break this
Window ; whereas the agreenieat of the Vestry
was to take it down ^ Neither was it meant
thiit he should do it himsdf, but by the glazier,
and set up tiew glass in the room of it ; but be
hath not followed this neither. My brother,
that sittetb by me, hath vi^ry well and learned-
ly spoken ol tbe authority by which these
thin|(s ought to he done. 1 cannot add to wbat
hath been said by h'm ; t shall tberefore, be-
cause much lime h;itb been DlreaHy spent, only
insist on one thin^ in tlie Defendant's Answer,
and so conclude iny Seiitrnre. He saith, tlie
suthnrity which tlie late queen bad to retbrm
and set tbrtb those hir Injunctions, nere^ven
to her by the parliament. >This is not well
spoken, The statute of 1 Elii. is but an Act
Declaratory, not to be taken u if without it the
US] STATETBJAi£, SCuAKUsJ. 1«32.— iVocxmfw^ a^tunri JTmijf ShQbU- (.566
nun upon k contempt id k criminil coait, u
here jQu mutt, ttieo piuve he hath notice of
Che InliibitiDn : for else it is but uwmuiju. ja- .
rif, whicbin tho ordiaarj way will not cicum;
anil yat if it were ignoratitiajuru, I do not MS
but III BO high acoun£of pK>aectitJoa m in thit
court, it might in soma cases diminish a &uk :
but this i» ignarantia facli in tbi« cue. 3.
That he did profanely demoluh thit Windaw.
conCauiiDg a retireMDUtiun of tlie* CraMion.
Tbii giveth occasion to look a, little into th*
natur* of tbe«« picture*; t conceive them ta
bs unlawful and imjligiiMs pictarea- of God t^
Father. Two of the WitDeue* *ay that wei*
idoUttrous, aad made to repieketit Gixl ike IV
tber ; that it it Cod the Soo'i pictui*, (ben ■»
prooC I think that t^nion of naking ibe
mieen bad no power tn nieddle with tboM
iiiiD0 of the church ; for ihii authoriq' wa» iii-
rmtcd ia the crowo, and ii still without tlie
puiMiBcuk tie that said ' per ine r^es'rcz-
* a«kt,' givetii thi* auiboriij. to the king. It
it good to meet iritfa gr^iwing. ««ilB, we know
not bow ir<*t a fire ma; be kindled with a
Mwll Bpafk. I cannot tfaerqlbre do otherwise^
twt MM* to &Be sad centuw faim hishlj, har-
iap oflended wh ap vany circuoUancM of
KgrMUKM), u hwe be«i well opoied b^ di-
nofjonrloKkhipt befbrama; ttaersfonin;
-_ .!._. ,[ ^ ■., .. ■ ^ .
with tnj lord Cot-
' tingtoo in all the parts of hi» Sentence.'
Lmd Qrtaitry, Lord Keeper, of ihe greet
Net sf Bngland. This Cause, mj, hirda, I
douhil not will prodtK* a good effect i for this
peat audience coaiistiiig oi genCleaien from all
pert* of .the kii^dom, cannot but be satisfied
ifcat we tUnk it not fit nor lawfitl to repreteat
(he Dei^ hj piccare, and coaM^oentlj we
condamii Quiuuh iupertlitJiio ; and oa the
other side, that w^ are resolatrly bent to
BiMDtaJn the government by the rcTeiend Fa^
tberk of the Church, the bishops. And nU this
. I think &t to he carefull; aipreued in drawing
"" ■ ' emiie, that
>t mistiken,
its ; nor on
f that peevish lurbuleot
liuroour with others. For the Cbanes in the
Bill, if tliey had been proved, 1 iJkkimI for my
part' bave trebled the Fine set bj an^ of ^ur
lordshifrs. There was aevei cause worse pr<y.
•ecuied, yet we are Id consider bow much
tt^ndelh proved a^inst thfe Defendant. The
Proserulor cauaith the lofianuMioa to be exhi-
bited aijainsc thia Defendant and ten other* ;
bn those ten ore not so much aa pressed to
First, to speak to thote things that an not
proved, hu: oolychar|;ed upon him. 1. He it
cbmged with Incanfbnnitj, therefore it waa ne-
Mssarj for him to diicharge himgelf of it Uy hit
Proof, which he hath done, aed no doubt rc-
mainethin me to the contrary; far the proiS'
euior, though apt enout^h lo charge liiu with
tliis, jet be eahibiMtb not a witness or interro'
itatory to prove it. 2. I'bat ha did this in
Contempt of tbe Ecclesiastical Power, and
contrary to the lord hisljop'i Act of Inhibition ;
but it is not proved be imid any notice of it be-
tiire the act was done, anri titerefore tbe oath
of tbe party is lobe believed : nay, there wen
no endeavour to proie it, so fdr as i see. And
I like not BO well Mr. Clmi^cjllr.r't moviug ibe
bishop to inake iin act lo coutiiiue this Win-
dow, if it were for any other iiause ibun tu pre>
serve the ecclesiastical juri«lictiun. Mr. Cbdu-
cellor should Aave done well to linve declnted
thi* dislike and scandal lo Oie Window to ,inj
lurd bishnp of Saruin, and hit, no daubt, would
have removed it. I do um say tbe bishop oi
. ecclesiastical jud^e is bonnd to ^v* notice ol
bisjudicial nets in their ordinary, prgcr.edinKS
it) course of tbe ecclesiastical Uwt, and their
*i*n jurisdistwu i Out if jou will charge a
the Antieat of Days, in the fom of
an anlietlt man, it, ai my lord of Loodoo bath
Bald, erroneoiuLy grouaded ; and also to biing
God as he ap^ared unto Daniel to be ww
seoted in (be Creation, which wu kiag belor*,
is soiDcwhat iinprosar. 4. Than ibat. Ur.
Sberfield boasted of it, it is oot proved that
he d>d,aiidit isevidetu that b* dotbiMttboMt
Nuw £oT what is chaifpd upon bin, v>4
iticketh, that under colour of the Vestry's Or- .
dec, he did the same, and without the bishop of
Sarum. And lor an anawer what Vestries ar^
I read not of a Veitry in. onr Book of Com-
mon-Law ; I read mudi of church-wardens,
and their doings. If it be a meeting of the
miniitcc, church-wardene and pariahlunEia, it
is n good meeting, and they may well deal in
nuiten of r^araiion, uot raformatioa ; . and
this is net derogatory fram tlie authority of the
tithop, but subordinate to it. But it may be
through the neglect of tb* prelates, the veMriea
do elu^roach upon iheir government ; and wiU
be raora disorderly, if they be not regulated^
My lord of London did, in the beginning of thia
CMl^e, well declare, that the arclideacoo la.
' ma^ut oculus episcopi ;' it were fit for ihes«
to do their. duties, and as such tliinga sbouJd
not be lefi^to be done unto these men of the
dow may be tiiken down by Mr. Sber£eld. I
do not say nor believe they nave power to re-
foTtn ; yet he pniveth \ig way of prsbcripiion
for 69 years ihey have made reparation* and
" howsoever ha duth not pursue
his order ; and this indeed was not discretiois
in him. But if hs bad taken down white
glnsi, I do not sac any reason why I should
sentence bim ; this heing not proaecnted in an
eci iesisBtical ordinary course. The ODundl on
both sides have carried theipMlves in the Cftuae
eiirenieiy well ; aud fur their yielding it to be
a parochial clinrcb, it is well done, and no fjuilt
is to be put on the party for his protettMiion ;
for 1 cannot think but crbea he made bis An-
swer, he was of opinion it w«a a lay-fae, b«
twearetb it ; and being ha Dow coiifeucth it
to be lubject to the bi&p, hU fauU it a greM
161] STATE TRUI^, 1) Chakles L 1(392-3.— rVccWn^Ki^antf Wm. Pryrm. [569
1 five did gire their voices to s«t » Fine;
U-' uf ibeiu tet 500 uiarkt, and one of iheqi,
vii. my L. C. J. Richardson, set 500/. wlu(;k
line ol boot, was caVen f<ir the king, becanae
according to the rulci ancVordera of ilie cuuit
a( Star-Cliantber, »beu- there ia difierence of
ill an udd, the iiing is to h«Ae ilie middl*
Tiierefore theSeuuinceof thecoutt'waa,
deal the lest, in m much as it now appearetfa,
ke dolli not oppose the eccle^uCical auiJiorliy.
I am glad io liear what I bnve heard ibii
ixj fma fay lards who hare ipokeii, and from
mt.y lords tbc rerereud bishops. 1 tij, it ap-
pearcth that notbiug hatii fuIleuJrom tiieni or
anji here preseoc, to allow the piciuring of the
Deity, or the worshipping of imngeS' I am
moch inclined to that opinion of Mr. Secretary
Cooke, ' That )« be unltnced by way ol' Re-
' prcheusioci and AdisODitioo ; I hold fit that
' be make his acknowledgment before my lord
' bishop, and repair this briiken Window ia de
' ceat niaoaer.' I aiu loUi lie sliould be pat li
■aj heavy Fine, the hither because he bath
not been prosecuted in ati ecclesiastical c
tberelbre J.gire no Fine at all.
TIm Votes of the said lords and otiiers of liis
Majesty's privy-council, were thus disposed.
Nine aereed to let I.OOOf. Fine upon Mr.
Sbertield the Defendant, and he should be put
out of his place of Recorder, be bound to the
good bdiaviour, and make open ncknowied^
ment of his fault in the church of St. EdmDDils,
where tbe olieiice was done, and likciriie in
the cathedral church of Sarum, before tlie bi-
ibop there, and the deans and prebends of
that church. — And nine others, (nj Lord-
Keeper's *oice being one, ngraed that be should
not be disrecorded, that be should inske Ac-
knowledBmcnt in private to ihe bishop of Ss-
ram of ibe said ofi'ence, and in such manner,
and bcfora such persons as the said bishop of
Sarum shouM think fie. And for the kind's
Tine, these were ag:iin divided; four, nlierenf
my Ijird Keeper was one, gave no Fine i
thu) entered :
■ The Defendant being trouMed in consci-
' ence, -nd grieved with tlie sight of the pic-
' tures whirli were in a Glass-Window In tha
' church iif St. Ediuond in New Sarum, one of
' the said pictures, tu bis uoderataadiog, being
' made to represent God tlie Father; did pr»-
' cure an order to be made by the Vestrj,
' whereof himself was a member, that the Wio-
' dow should be taken downj so as the De-
' fendant did, at his own charge, glaie it again
■ with white glass ; and by colour of ihii order,
' the Defenoiuil, without act|uaiiiting tbe hi-
' shop, or his chancellor therewith, g^it himself
' into the cliursh, made the doors Ijsst to him,
' uod then, with Ills staff, brake divers bolrs iu
'The said painted Window, nbereia was dfr-
> Scribed the Creation of the World ; and tor
' this oSenca cummiKcd, with neglect of epia<
' copal authority, from whom the vestry derire
' their nulliorily, and by colour of an order of
' veslij, who Imva no power to alter or ref irm
' any uf die ornaments of the church, the De-
ifeudant was committed to the Fleet, fined
' 500/. and ordered to repair to the lord bi^ihop
' of bis diocese, and there make an acknow-
' lediinieiit of his ollence and contempt, before
' Bucb persons as tlic bishop would call unto
142. ProceeiSngs agMnst Wm. Phynn,* esq. in the Star-Chamber,
for Writing and publishing a Book intitled, " Histrio-tnastix,
" or a Scourge for Stage-Players," &c. ; and also against
Michael Sparkes, for printing, and against WilliaU
BucKNER, for licensing the said Book: 9Chabi.es I. a.d.
1632-3. [1 Clarendon's Hist. 73, 158. 2 Rushw. Coll. 220.]
The Tth of February IflSB-S, Mr. William
Prjnn, utter-barrister of Lincoln's-Inn, was
brought to the'Stai^Chamber; together with
MtfJiBel Sparkes, William Buckoer, and four
• " Mr. WiHiam Prjoii now publiihed his
* Histrio-MaHil' or Book against Stage Plays,
licensed by the chaplain of archbishop Abbot;
wherein, with very profuse collections, ha ex-
posed the liberties of tlie stage, and condemnnl
llie very lawfulness of acting. In bis way of
writing he coulil not tcfrain from over-doing
any subject and from miny appenraaces of
miling. And because the Court becime no*
more addicted to these ludicrous entertain
menu, and tbe queen herself was so fond of
^ atnusement that she had bore the part of
-)nstoral in ber own royal person; thcftfor
VOL. III.
other Defend ar
snn of Grav's-Inn, did set forth. That about &
Car. Reg. Mr; Prynn compiled nad put in print
tbis Treaii'e agsinst Plays wis suspected to be
Ici'elled Hgainsit the praciice of (he court, and
the mnniple of i he queen: and it was supposed
an lunnendo, that in the Table of the Diiok
this reference was )iiit, ' Women actors noto-
' ricius wlinres.' The Attorn ry General prose-
cuted t'rynn fat this Libelin tlie Star-Chnmbcr,
wliere he a as seatenced to impnsonment and
other penalties. Tlie minroriune was, tl.nt
bishop Laud was tlie instrument and abettor of
this proccsi against the Book acd the Author,
by shewinz the hook to the king, and pNntiqg
at tiie ofiensive parts of it; and then by eib-
563] STATETRIAI^. g Chau-uI. l63'J-3.— JVwmiMgi<%atwi ir«. Pt^, [564
B libelleu) volonie, entiilei) bj tli
" HUlrio-matiix," ii^tiinu plajrs,
dnncliigs, &c. And altbougli he knew well,
that Ills mejestjr's loytl queen,* lords i>f the
counsel, &c. were iff their public festivals, and
other times, present spectatnrs of some matqnes
Diid dHDces, and mnnj recreations that were
tolerable, mid in themseives sinless, and to
publiiibed lo be, by a Book primed in the time
of hit ma]est]''s rojat lather ; yet Mr. Prjiin,
in his Book, hath railed, not oiilj n^inst siagc-
plajs, comedies, dancing), aad all oilier exer-
cised of the people, and against all aucb as he-
bold them, but farther and pniticular ngainst
honting, public festivnla, CliristniBS- keeping,
bonfires and majrpoles ; nay, agninst the
dressing up of a house with green-ivj'. And lo
mHiiifest bis evil and mischievous design in
pubtishini of this Libel, be hath therein written
divert incitenaeut^, la stir up the People to dis-
content, as if there were Just cause lo lay vio-
lent hands on tlieir prince ; and hath expressed
in miuy speeches againM his majest}', and his
housliold, infooioiis Tenns unlit for so sacred a
person. He hath cast an Rspersion upon her
majesty llie i^ueen, and railing and uncbaricoble
censures against oil christian people. He hath
eommeuded all those ihat arc factious persons,
that have vented anything in any booL against
the state, as the factious B<iuk of Dr. Leigbton,
Jo.Mariapa a Jesuit, to draw the people from
Lis raajestj^'s Kav-crnment, which is of most dHD'
(lerous ciiiiiiequence to the realm and state.
. His Buok is of above 1000 pages: and he dealt
with one Michbel Spnrkes fur the publishing,
licensing, and priniing tliereuf, who is a person
that is a common pudlisbec of unlawful and uD'
licensed books; and dealt also with Mr. Buck-
ncr, anothrr Defendaol, for the allowbg of it
fur the press; and with the other four Defen-
dants to print part of it, and publish the same ;
' and by ibis means this Volume was allowed
Mtidpubliahed, to the gfrat scandal of the whole
re»lin. And lo h^ve this punished according
to ihe demerit of the cause, is the end of JUr.
Ationcj's Inlbrniatioii.
ploying Df, Hey\ya to pick out all the viruleot
possages, and give the severpit turn to them ;
tliid lustty, by canning those Notes to the At-
^rnej-General for matter of InfonoatioD, and
suppress libelling, and t
OEstirt a mspert ip crowned heads ; yet it wi
looked upon, by tome serious men, as a fiving
counieiinnce lo the licentiousness and profune-
nes* of the Stage, which ought rather to have
l«M-n reproved and resiraiiiHl by a cliristian
l)i-l)up." Kennet.
• " The Queen liad acted a part herself, in a
pastoral at Somerset- H» use : mid this Book of
PFjnn's was shewed her as levelled at lier, there
bemg 3 reltrencf in it, WiKoen Actois nciorious
Wliorts; though in truth the liook was puli-
lis^hed six weeL» before tbp queen's acline."
Wbitlock's Ueiii. f, t8. ■
Mr. Atkiat of LincolnVInn (aiterwanli a
Jndge in the court of Comnioo-Pleiis) opened
Mr. Piynn's Aokwer; 'I hat he the said Mr.
Prynn taking into his serious considpration the
frequent resort of sundry sorts of people to
common Stage-Plays about tlie ciiy UJ Ijindon ;
and having read divers councils, laws jnd sta*
lutes of this and other realms, against the fre-
quenting of conunon slage-plays, and the judg-
ment and ppinion of seriral divine;, sod otiier
uniient authors, and divers English writers al-
lowed by public authority, and his own judg-
ment rmining with those ; not imending to re-
flect, or to have relation to the kine, queen,
state, or government, or your lordsliips, did
about seven jeari ago, compile this buuk enlt-
tied Hutrio-maitii ; which is no mote bnl a
collection of divers arguments and authorities
against common Singe-Plays. ' That aboni iiiur
years since, he did commit the same to Michael
Sparkes, one of tlie Defeodanis, to be tom-
mended tu such peraons as then had aulhoriiy
to license books for the press. Sparkes did
canr. it to Mr. King, belonging tu the late
Archbishop of Canierlnjiy ; and before be had
peiused this hook, Mr. Buckiier bad anlhorily
to alkiw of the books, to the press : Spaikes
bniught this book to Mr. Buckuer, who kept
It by him three months, in vhicb time he did
fully peruse it. In the interim, b« gave part of
the book to Sparifes to print, and ke|>l the rest
till he bad perused il, and sud, that he should
have thu also to the press. lu October fol-
lowing, he carried this cop^ with the liccBce,
and cauied ihem to be eniemd into Stntiooen-
Hall, and did compound with those that hid
authority for the pnstiog of ibis book. , It wu
printed publicly, and not aecr-etly ; and becuute
tliere was some of the copies close wrilten, lie
cmised these to be brought again lo peruse, to
the intent that he might «Dt he deceived in
them ; nnd as he saw cause, corrected ibrm
accordingly. That in Eii»ler-Term was twelve-
idotith, the Epistle, and tbe whole First Part
of the Book was printed ; and he had time to
examine it between Ratter-Term and Trinity,
mid then he did make auch alterations as ha
saw cause, viz. in p.71l,&c. And nftera'ailb
the Second Fart, and two sheets of ihe index
of the book was likeitise priuied, end these
were likau ise brouKhi to Mr. Buckner ; so Uut
the whoh: Book witli ihe Iiidi'k, was bound up
about Christmas following, which was Chrisl-
mas was a twelve- month. Mr, fiuckner sent
for Mr. Prynn, and 'the staUoiicr wa* desirous
thul tlie Book might be published, and thai lie
might send some volumes to him: but Mt.
BucknercaiJ, lie could wish the word 'Pity,'
in iuch a page Qii|[bt be left out; end I wish
with Mr. Buckner, that ' Pity' miglit be add»d
to every pa^ of the Book. So when Mr.
Pryiin »tiw all this from him, lliat bad licenre
to allow printed Bonks, lie conceived it a suffi-
cient warrant for his proceediDCS. And fcr
that which iS| alledged )n the InlomiBtinn, of
Wr. Pryun's commending Dr. LwRhton, for
Hhicb flu doctor receiv^ a Cenisre in tba
HGS] STATE TRIALS, 9 Charles I. 1632-S.-^ tBriling hit '■ Hutrw-mattk." [568
court, in the quot«tioto whereof, fix. bw Book,
and of others, he adhereili lu tiwif meiuiing so
Cm aa, and wherein tliey are Bgrfeable to the
Itiw : and this book whs printed loni; before
I>r. Leigbton was questiuneil in ihia couri.
And ns fur en£ourni;ing of oibers to be factioui
or seditious, lie saltti upon his oath. That he
was so far fiom tii»\6j^ly, Bcbism, or sedition.
Or n^ecl of the king, state, or govern itienl,
tliat be hath with much jay, clieac fulness, hihI
lhaiikl<iln«s to 'God, ever actnowledged hi»,
' tuid tlie rest of the king's subjects hnppiness,
liy the pefioe ne have under his inijem^'s happy
govemiuenl : and lUs Answer rdij inlcntiun is
sincere, tbuujth other construction be mode
(hereupon. lie sailh, he hath taken bis oath
of Suprerancy and Allegiance in the University
and Inns of Court where ha hath taken his
degrees. That it never came into his thoughts
to appnive of Scl)isin or Sedition: and if any
thing in his Book, coptrary to bis meaning,
hatha misconstrue I ion towards, his majesty's
f^vetnmenl, stale, ur your lordships, he duth
pnntrate himself at his majesty's rojal feet,
•nd crave pardon and grace. And he doth ap-
peal to jour lordships interpretations of those
Eiarts ot liis book : and doth wlihal desire your
ardships favour, and to take it into yoor con-
sideration, that he hnth been a year prisoner in
the Tower : and this is the subitaace of his
Mr. Jenkini of Grays-Inn opened the An-
•t.«r for four of the Defendants. First, for
the poor Widow he saiib, fur any manner of
combination, or knowledge of ibis liook, or of
the content) of it, &c. she knowtth nothing!
For the lest, ihey all say, They being illiterate,
were not able to judge wbctlier it iiech &i to
pass the Press, or not; that the Book was li-
censed to he printed, allowed niter it was print-
ed, and before it was puhllshed, and It whs en-
tered in (he Stationers-IJall, and the warden
there allowed and sutjBcHbed it to be a book
pastable. The book hath been three years
in the press. All this time was spent befi>re it
wa* printed; there were senrche* made duriog
this time, and th«y came iinto the preis. They
saw the Book there in a public way, and not
in corners, or privatdy printed, as la alledged
iri the Infjnnulion; and it was printed ajid
published, and some of the books sold by
Sperkes: and Sparbes lalth, the printing of
this book cost hlin almost 300t. aod saith upon
his oath, he sold not iViany books. And for ihe
charge upon him, of l>eiiig n common printer of
tintiiwfiil books, he Siiiili, lie hath prosptred in
hik calling; nod some other stationers having an'
eye upon hlui liir bis thrift, have envif^ him in
publishing of bopks, and teaverh it to my lords
the bishops, CD know what luccess he hath had
ill the High-Commission.
' Mr. LigAtftnl of OrayVInn openi^ Mr.
Buckner*! Answer. He sniih, Tlint he was
chapUin to the lata arvhbishnp of Cnnierbury,
and doth approve of the church without
tcruple, WW of "" ■'" '"" ' ^—'
if all tho coffinoiiiw of Eoglan
3
Chnrch-munc he doth allow of; boviin| at the
name of Jesus : plays, music, and dancing, he
doth esteem them just and Uwful. AikI for
thD>« censures against eccleiiaslical persons in
this book, he dLith, and ever did abhor, and de-
test iliem. He coulesseth he licensed pan of
the bonk, but iiwer gave urder to disperse the
book ; but when he heard it was published, lie
did endeavour to suppress it : and to the rest ' .
of the Lituriuation pleadeth Not Guilty.
Then, Mr. Noy, Attorney General, spake as
followeth : This volume of Mr. Prynn's is writ-
ten by himself, without the help of any man.
There aro passages in it that reil*i:t upon, the
liiiii!, state, ^d gavernment, Sec. other thing*
reflect npon the church and cleryy ; hut for lhi}t
there is no charge in the infunnalioii, which I
did conceive fitter to be left out, and withal ,1
received a comniHiid for the saine : therefore
finding the Church so deeply wounded by Mr.
Prjnn, I do leave her lo avenge herself of him,
and to indict such uunishment on him as be
deserves. 1 shall he an humble suitor to the
court, that they would he pleaacd lo comHoend
the prosecution- of those things thatcuiicern the
Church to the High Commission. There ara
divers particulars whereirith he is mil chained
within the Informatinn by way of criuie, anil
io it is not proper now to bring bin) into ques-
tion for ihem. As for meniioning of Cereuio*
nies, &c. ofdedicatinK Paul's to Diana; of tha
Discipline of theChurcb; thecompluhitofuew
erected Ahars: I wonder what Altars he means,
I hope the churcb niUeiamine in doe time; a*
also Hhn he means by bij ' modern innovator* '
in the cluirch, nnd by ■ cringing and ducking to.
' Altars,' a fit term to bestow upnn [he church ;
he learned it of the cnniern, being used among
ihera. The Music in the church, the chnrita-
) be a
bleating of brute beasti ;
' Choristers bellow the tenor, salt wereoxca ;
' bark acauiuprpoint,as akennelofdugS) roar
■ out a trelile, like a surt of bulls ; grunt out a
< bass, as it yvere a number of hogs.:' his com-
ploinl for suppressing leprtirions by way of Con-
venticles ; all bis general censure of all llio
bishops, and of all the del gy ; they scorn lo
feed the poor ; the ' silk aud intiiu divines :'
very charitable terms upon (hem of the church !
Christmas, as it is kepi,ii a' devil's CWittiuns;'
nay, he doth bestow n great number of pagea
to make ipen affect the name of Puritun, ai
though Christ wrre a Puritan, and so he suiih
m his Index. ' Then conceriiing the Iniagrs in
theChnrch,heBpeakelh agninst them, and put--
teth that now In print, which was cimiaiiied In
an Answer iu ibis court. Also for the Sabbath-
day, whether to beiiu on Saturday night, and
end on Sunday Bt six of t)ie clock. The»e are
tilings proper to the eiaminalJon of llie Church )
aad whatsoever becamrtli of the rest of ibe
cante in tlus Court, yet I comwiend these things
to the consideration 'of the Church. I wonder
whnt ihemnn mean* lo htisu ihtse things under
tlietitleofSW8«.^l»3*i PUiraliligi
J
567] STATE TRli\LS, 9 Charles 1. 1032-3— Pf«ee«fff«J agami Wm. TrjKit, [» .
tiiU of Stoge nayen. He had in end in ii ; be
had an end in h.
Now concerning the Book itj^r: This Boot,
•aid Mr. Vay, it it llie witnen, ic dirh lestil^
wlmt KB] liij inteotion, and by ilie Book he u
to be judged. If ic had been Tound in thesireet,
and of Mr. Prynii's compili^ii;, and TiMught to
thit court, ood considers tiati lakcn of it, tlie
cnuR nould proceed uithoDt a [larl^ aj^aiiisi
Mr. Pr^fiiii. And here Mr. Attornej' rccittd a
trecedent of one that irrnteatook, nod it was
rought lo the couacil. It was demanded, who
was the ttcrUierP answer was loaile, the Book
WM the accuser: sh-ill the beretic'go unpunish-
ed f This Book ii is Mr. Prynu's doing, he dnth
put hi] name to ii, he swears that be did write
kail.
llienfiir iba limso) compiling it ; seven or
eight tears ago it was compiled, and it is grown
aeipu times bigger than at the fit«. Mr, Prjun
•bout eigtit years since, Bhewed it to Dr. Goade,
who told him so goiid caiiies of di&like, that
might make any reasonnble men give it over.
About seven jears ago he Came to Dr. Ifsrris,
to desire bis opinion of the Book ; and he Cold
faiin it was unnc and unworthy to come to Che
pre<s. In ttie PBrlinmenc lime, befor« the year
1630, he gave some part of it to be printed ;
but ic came nnt to Mr. Buckner till loii^ aller.
Sparkvs said, he would print any thing m Par-
Now we are Co consider two thingi, from the
first compiling and printing of lliii Book, to the
last : First, how it grew in tolitme ; for after it
wasdelirered to the prets,it hath grown Dp with
dtTCfB things, which then were impossible to be
known at thtit time, it^ien it was delivered to
the pre« ; which appeareth by this. In I6S8
was' the parliament, and in 1631 St. George be-
(•an to look abrond into the world. This man
bestows eight whole pages upon Si. GeorK^i fur
being so botd to look oat. He satth, that St.
' George the Arian was a Ciippadocian, though
born in Cilicia, a part or province of Cappado-
cis, &c. and that St. George's advocate was an
Englishman, bom in Gloucester; and that St.
Baail the Great was bishop of Csesurea in (^ap-
padocja, the native country of St. George ilie
Arian, Certainly lie conld not tell that St.
George would then remove himself Rhnind, or
in tlie country of Gloucester, &c. at that time ;
but this man did go on according to the occa-
lion in 1898. A woman, in 1638, acted a part
of a Stng^ Play at Black Fryers ; he spends
many paies about this.
We all know w^aC time the dearth was, three
years agn : he taketh occasion not to pass it
over. Ha maketb a long discount of Plays,
Masques, &c. in the late penurious times, how
they were as eipenceful as the wan were. This
is to shew how by pieces it did grow bigger
from time to time. -
All Stage Players he terms them Rognes : In
this he doth falsify the very act of pariiomcnt,
for unless they go abroad, they are not rognes.
The same tcnn he givclh unto Schfilan acting.
Jdr. P17QD had a purpose, not only io this to
Jail upon Stage Flays, but Up«a tiia body af dx
Commonwealib; and to infuse it into mea's
minds, ihnt we arc now running iotu Pnganism
nud Genciitsm. He I'liUeth upon tboae thing)
that have not relation to StBRC Flays, Miuic,
Muuc in the Church, Dancing, New-year's
Gifts, whether Witchery, or uoU Witchery,
Church Ceremonies, &c. indistinctly be failed -
upon them ; then upon Altnrs, Inaagei, Hair of
ili^n and Women, Bishops and Bond res. Cards
and Tables do offend him, and Perukes do fall
wiibiu the compass of his theme. St. Geoige
never ofl'ended nim ; hut all this is to the end
CO bring a belief among the pf opie, that we are
returning back again to Pagainsiu. His end
is therefure to persuade men to go and serve
God in another eouutry, as many are gone at-
ready, and sec np new laws and fancies amooa
thonaeltes. Consider what m
oay be fit enough and ranful to ■
-■<■'- -Tiihathase - -^-----
ihey must dojheir errand in mannerly tenns,
nnd io the same terms as other men expect to
bear with them. Mr. Frynn iiad no mission to
meddle with these things, to see whether men
should not return to Gentllism ; the terms wbich
he useth are sucb as he finds among the oyster
women at Billingsgate, or ac the oOmnMm con-
duit. He bach raked up all the vile tenos tbtl
could be found.
Now to prove that this is Mr. ^rynn's Book,
read Mr. Prynn's Examinntion, Inter. 5th,
(which being read, was 10 this effect,) That Mr.
Prynn, without the help of any other, did write,
pen and compile the whole Dook, called fiii-
trio-0uulix, and the Epistle before the Book,
and the Indei and Table foHowing.
Now for the publishing of this Book, it dotb
appear by the Deposition of Dr. Goade, that
iibout 8 years since, Mr. Pryaa did bring ■
Book to him in writing, of about a qoire of pa-
per, concerning Stage-Plays, to have the same
licensed, but he hdd It unfit to be allowed ;
and doth well remember, that aslobisaigU'
ment of the unlawfulness for a man to put on
woninn's nppaiel, he put Mr. Prynn this qoeii
tion ; Suppose, Mr. f^rynn, yourself, as «
r-i. .;...;._ -itrsccuted by Pagans, think
JQU 1.
»lf ii
apparel, you did" well? who answered,
That he thought himself rather bound to yield
to death than Co do sn.
Dr. HorrU also rfeposcrf, ThSt about TT"",
n^o, Mr. Prynn came to Itim to licetne a Trea-"'
tiee concerning Stage-Plays, but be w odd not
allow of the snme. So this man did deliver this
Book when it was yooiig and tender, and
would have had ic Chen primed ; hut ic is unce
grown" seVbn times bigger, and seven .IUMS
1 it went te
o rnter-
aailLt, was given to this deponent, in or about
the last parliament, at which time seven sheets
tbenoT wtM priateil M tbit dtponwl't lwu*c ;
ieS] STATC TRIALS, g CujuAt I. I9i2-S.— fin; miiMgUt •• Hutrio-mtuiix." [570
winch tbii deftonmt M prioted, U Che rcqunt
«>' Mr. Pnrna "xl Mr. Sparlies, upon Mr.
Prjnn'« infonoBtion, tbaC >l w»t licemed, and
llut be would Wmg the liiiid of (he licenter
anto iL But thij deponent did refute to print
anf iDure of tbe same.
Acad Jowph H. to prnve, that Sparket
wonld set U|xm it unliceiiied in parliarrtent-
bine, >o later. SG. wlio *aith, That the Dercii-
daBt Sparke* did, in the time of ibe )att parlia-
ment, priiii, or cause tu ba printed, diven
book* witbout licence ; whereof some irere
Mr. Prjnn's, aonie wcra Mr. BurtonS works;
and this depaoent hath heard Sparbei uj, lie
idont^rint an; thinj; in Dailiament-time.
Anirtber port of tSe Charge was mnniiged hy
Ut. Mafon of Lincoln VInn, reckoning up the
Dnmber of Epithets wherewith Mr. Prjnn had
Wpened all si>rts of people : ami be taid, thai
■( ipas a Libel, Dot only ngaiiist tbe btare, but
•gainst every particular person ; and proved
(he ClHUge by diven pauagei cantniiied in tbe
Bonk, fol. 901, &c
AftenvartI Mr, N07 proceeded io ifae farther
making ^ood of bis Charge niiBinst Mr. Prynn.
May It please your lordshipi; A* he Iiatb
Mien foul upon aU thln)^, all pereont, all
'leies; upon the mag^ntrates, upon tbe houa-
hold of the kinf ; lO be hith not (pared the
kioK liimseir. I am (orry 1 shall hare occasian
to Bpeai any thing of il ; but there is a freat
deal too much in ha Book. My lords, after
he hath matle aUthewcomplaintiMiotoleraUe,
he falleth upon all indistinctly, and never laketh
upon him to discern, to make a distinction,
that there may be atoleration; but falleth foul
upon every thing, thitwearefalliDgin^ Pagan-
ism ; men and women ere naoghti be ipareth
not the king htnuell-j but takrs upon him to
(each a remedy ; the remedy is worse iban the
(Kscaae. What bat^tiil comparisons he bring-
eih with other princes P as Nero; andipeakeui
of iJie consummg of the treasure of the realm
with MasqoFH, and of the late perrarioas lime* :
a base word ! A declaration of infamy upon
pnnces, with such-like conclutions as these are.
When all this is done, he tmcbeih the re-
medy not by way "t precept, but by wtty of
example; invites meu to read John Blanaaa,
•od two grate Bulbon more, be taith men not
censored. I am vei^' sorry I am to Spenk any
thing wherein the king should be niuned, but
' be would not forbear it when the pen was in his
band ; some of the words are au nasty that I
will not speak (hem.
After Mr. Attorney General had spoken, he
C»ll«d far these Passages, amongst odieis, in
Bittrh-mattix, to be read, viz.
To his muchJionoured Friends, the ri|bt wor-
shipful Masters of (be Benchof the hoDonr-
abla Sourishing Law-Society of Lincolo's-
' Havmg, npon my Gnt arrival here m Lon-
' don, bewd »bA seen in ibur several Plap (to
' wbiob the prMsigf itgpartanity^f sone ill ac-
' quaiotance drew me-, while I was yet a novice)
' such wickedness, such lewdness ai then mad*
' my petiiteui heart to loath, niy conscience to
' itbhor all Singe-Players ever sjnce; and har-
' iiig then likenine obictved kom« wofiil eiperU
■ ments of the lewd, mi^ciiie vans, fruits of PJayi,
* of Play- houses, in some young gentlemen of my
' acquaintance, who though civil and chaste at
' lirst, became so licioug, prodigal, incontinent
' debauched, yea so i:\i past ail Copes oramend*
' ment, in half a year's space or less, by their
* resort 10 Plays, obere chores nnd lewdcum-
' panions bad inveigled them ; that after many
' essays of their much desired Aformatioii, two
' of (hem were catt off nnd utterly disinherited
' t>T their loving parents; whom I heard oftcom-
' plainine, even uitb tears, that Plays and Play-
' houses hod undone their cliildren to their ns
* small veiatiun, (a good Caveat fur all young
' students to keep iliemseives from Play-houses,
' by these two youngsters harms ;) Hereupon I
' resolved, outof adesireof tbe public good, to
' oppugn these common vice- fomenting evils:
' for tthich purpose about 7 years since, recol-
' lectin^ those pliy-condenining passages, which
' I had met with in the Fathers and other ao-
' thors, I digested them into one entire written
' Discourse : which. bating since tb;it liipe in-
' larged beyond iti intended bulk, becauce I
' naw the uumber of pliiyers, play-books, play-
'haunters, and play-bou-'es still increasing;
' there being nbove 40,000 Play-Books printed
' within these 3 years («i Stationers infoim mc)
'they being now more venrtiUe than' the
' dio'iceat Sermons ; two old Ptay-houses beiif
' also Utely ro-edificd, etdaiged, and one new
' theatre erected: the multitude of our Lnn-
■ dun play-haunten being sn nugmeoted now,
' thst all the ancient Devil's Chapels (for so (be
' Fathers style all I'lay-bnuses) being five in
' number, ore not euSicient to cnniaio their
' troops; whence we see a siitb now added to
' them 1 whereas even in vicious Nero's reign,
' there were lut three standing tbealres in
' Pagan Ronie, thoiii;h far more spaciutu thaii
■ our Christian LondaQ, and ibose three too
■ many. Hereupon I first comioeuded it, beiag
'' thus suKmenced, to the Licenser, and from
' him unto tlip press, where it hath lingered
'longer than I did expect; nhich being now
' at last brought forth into the world, in sucli«
' ptay-adorinK age, that is like to bid d66anoe
'to It ; I here bequeath it to your worthy
' p«trooBge, to whim it was first devoted, not
' carii^ huw it Inres abroad, so it may do good
' and plesse al home.'
In the next place, Itfr. Attorney Noy causal
to be read out of (be book of aittrio^mattLr,
such passages, as were scandaloau to th* king
and gorrmnient, as ful. SIS, &c.
Mr. Alkint, in defence of Mr. Prynn, Mid,
That (lie doqoiMice of (hose gentlemen who
•rguitd a^-ainst Mr. Prynn, made an eipontion
which was no part of bis intention, in whicli
pMnt he wodld eDdcavour to clear him ; aad
tbe way was by letting their lordships koow,
tbaLmany Pamagta in that Book lua ontf i*-
S7l] STATE TRIALS, 9 Chakles I. l63i-S:—I\octedii^ asaintt Wm. Prymi, [5T1
IsUvetj spoken, and not pojitivf, wd mo»t of
tb«ln are but the allinnationi iiF otlier autbors
of teienil kiml) and firofcninns : v wliere it is
inid, that ' such iticurnnte deviis as freigueiit
' piMys,'&c. heipe>ikelbb;rthewB!r of common
frt((u(^tiiig ufPluf^, list tliry prove incarnate
tlevilii aiidsuofJadtcslbat ea^tofTtlieir nxture
niid niodesiy, ilmt t relnticely apoken by fre-
<iuen[i[i£ pl»y^ lasciviijiis dnoring, Ikv. and
vflien he tpeaketb of tliuie in a contiliunl pro-
positinn, his ai^uiuent i) ihua:
* Thnl which dotb ordinarily (if nnt nlwnye)
' delile tl>e eyesj the ears, and snula both of tlie
* actoiE iind spectators, by iiigendrin^, bv enci-
' liDg iu£retricioiis, luslliil, lewd, adulterous de-
' sires and a([ections i)i their liearts, or by in-
* ttigaling, by prepnrine, by inducting them Id
' oatual unclennucM, mu-it need!) be nboniiiiulile
< andunlawruluiitoCliristinns; but these Stn^e-
' E*lays, f(C. therefore ihev must necdt lie aliu-
' minnble.' And iheie i« none but Wbereg,
Panders, or foul incarnate DeviU, who dure
controui that minor truth.
My Innls; HedothnutcondpmnN'ew-year's
(Jifti, but acknonicdgei ihem to he as tokens
nnd testimonies or lavour and re>'pect froiD
superiors Eo their Inferiors; aud fur Dancirt);
(under fovour) he doth not condemn it at all ;
tie hiuh coniiuendeit the same as single, and
dancing the measiires. And for dancirtg in
^reat men and priuceii, he doth protest it wns
Inr from his ihoiighi to compare tlirse (iine^ to
Kero'fi, under so pious nnd religious a prince ns
we iiBve, and by whom we receive so much
iinppinest. That had been so impious and un-
worthy, that be could by no m^nns make any
apology ; but at well his pers»n ns his pen
vbould hnve been detestable, if he had made
any suchcompati^nn.
And nhere hednih speak, that Dfuicing and
Masquinic have been near ai oxpencefiil as the
wars, in that he in«uns in Henry ihe Bdi's time,
ftnd not in these days ; ns I take it, he speaks
tliere of a History that dolh express the great
charge in that time.
I shall desire, ns I did besin in the opening
ofhii Anniver, that he ma^ Iny fast hold upon
(he rock of the kini-'s taraur and mercy, and
compassion of this court ; nnd what his iliten-
tlocs are, they are best known to his own lieart,
his expressinns known lo your lordihip^i. I
cannot condemn his heart, I will 'not excuse
This if your lord-hips wilt pi»e me leave, I
•hnll say; I have Inii^ known him in a Society
vflnns of Court, tttierc Iw has lived ; and for
bis ordinary discourses (prcepi the mattfre in
this Book) they have not liren 'aclious or Eedi-
tious. But now he Is before your lordsliips,
truly fnr my part, I compare him lo the condi-
tion of an Antmmmier, «ho Ried his eyes so'
much upon tbe Mars, that ho did not look 10
his feet, and so fell mio a ditch ; for his eyes
w«re so lixed upon this subjea, upon the com-
mon resort la Stn^e-Ptays, nnd the great abuse-
that comes Ijy thfm, that lie forgiH to look
4ain> M hit baad that guided his pen, which
now bringpth btra under your lordships censnre.
'Ihat I may not offend the patience of ihit
court, (the court is full, and the expectttioa is
grcnl,) I «ill conclude with all humility, ind
wi»h and crave, tliat he »ho Is the Suprem*
Judge, may be with your lordships la this lait-
tpr, aTid niLiy be over all your good lliotigbu^ .
iud|:tnenis and bentencet this day, ia this cause
of lilts poor gentleman. Aad this is all J huin-
biy oflrr in l>ofcDCe.
The next day of hearing,
Air. Uotkrum, of counsel with Mr. Prynn,
spake thus: '
My lords; I am aaaiirtied counsellor wak
Mr. i'rjnn. The Information is for publiihiii;
in print a libel or Volume of Libeli a^nn
kill)!, queen, slate, {*cc. My lords, for Mr.
Piyun, he duih humbly cast himself at ymr
lordships fret. For the B.»>k, I must say, be
doth humbly submit himself to tour lordshipi;
ytt, my lords, his heart will not |;ive him leote
III say, Uint be is guilty "of those gross ofeicn
that are laid to his charge. lie confnseih him-
sell to be justly brought before your lordihips
fiir his ill expressions, uhlch may prove an oc-
casion of scandal by misconstruction, and so
Slime dangerous principle may be Infused inte
the sulijtKts: And t^ be^geth your tordsbipsto
consider of them, accordmg to the iuleoiions of
his iieart, which were fair and honest, ibou^
harsli ill expression, that he may tecdie «
nit'ournble cunstruciion, for that he citetb bit
Authors, and their words, -and yot his owa.
And fur iliat he nieddlctb «itb mnlters not
ppuper to Stage-Plays, as In mentioning die
Sabbalh, his nleanillg was, Stagp-Plajs upon
the Sabbath-day: bis meutionijig Habits snd
Recreations, was in relation to men pultinjoa
womens liabits, and unlanlil rccreatiuu at
plnys, and so be conceives them not altogether
impertinent.
For the Manner of his nritinp he is heartily
soriy, ihat his style is so bitter, and his imputa-
tions so unlimited nnd general; yet in iliit lie
washd tlier«u>ilo by Authors in I lie like cue,
wliich he uders for his excuse : he hopes bis
parsion against these abuses hy Plays may a
iitlU plend biseicuse.
Now for the Manner nnd Matter alledged
against him out of his own Book, in that be
.hopes your lnrd>lups favour : He saiih, tbst
those ihat are judges oF tbe Books fur licensjii*,
they are guihy ot the matter, and be hopeth
ilnit this Uouk doth dilTer from all the books
brought into ihis court; for here are none
broui;lit but such as are unlicensed, and this
is licensed : nnd he suhmitteth thus to that
My lords, as to the general end and inten-
tion of his Bunk, lie iweirelli, that the general
reforl iitilo plays was the first occnsion ; anil
his end w'as for the Riformntion of the ahust
of it, and no otherwise-: and then, my lorHs, be
hopelh he sliolt not Incur your loMt-hip* seVwe
censure, lie did not send tlie Book beyond
(be seal tu be friuted, but piiDied iv bwel
»73] STATE TRIA15, gCfiAiiLEiI. \63i-3.~-M viritiag kit •' Hiurio-mattfx." [^74
and it «>» three jears in the presj, and licen»-
■d aiuj published.
. And, nij lords, the Declaration to the In^
(bnDatinn of tbis court, s(iealicth somelliin); lo
hh iDteiiCiona, viz. to whoiq he dedicated iliis
Book, and be dispersed it himself to men cif
taowa integrity ; and certaiol]! if his heart had
beeo gaUty of chote foul Crimea, h« would tiot
have presumed one of these BouW to Mr. At-
tornej tioy himieir. He dirl niit absent hini-
■eir, as one guilljf of such offeiicn nould ha>e
done; beirasso far from hating rlislojfBic;, thni
he dutb (»mmend the kini; uid state, and
that cunid not be •ritb an iiitcntian ndainit
king end itate. And all ihe Ch.-tr^ iluit lie
Dpon him for his fbul inteniiona are but infer-
ences upiin liis Book, and coiiiequences, qnd
•ucU nl them only that be strained, aud nut of
necessi^.
The next thing charged upon him is Perjarj,
far that he (aid, he shewed nn (wrt of this
Book to anir before it wai slicwn u Spariie* ;
yet it wBSfirored bjDr. Harris and Dr.Uonde,
that the* Mw it ninnf yean ago. As to this
he saitfa^ the; speak only nf bis Book, cnnceni-
■■•g Plays, containing n quire bf paper.: and
that it is true, he did xheir them such a bonk ^
bat that book was not this Look ; though thpy
be of one subject aud matter, yet they ditfer
much in fiirm and frame.
Then Mr. Hem spake on his behalf M fof-
law* : ■
My h)rds ; We that are asii(;ned counsel lor
Mr. Prynn, do come with great disadiantn^,
both in nuinher and judgmeiita, considering
the great ability of the king's counsel, oho
have spoken against us. If the conUruciinn
they have made be theirs, then clearly ne are
(as they would have ui) to fall deep by your
loid ships Sentence.
The weight of this Cause, and the nggrava-
tions upon it by the king's Counsel, niaile mc
th« last day (without desire of my ilieiil) tu
crave farther tine, for ne dunt not then give
any Answer. All lliet I can now say, it, That
your lordships would h>ok upon the inttniions
of his heart, iu thnt he hath eiphined himself
■s hur as any man can do by bjt oallt ; bow is
it possible to make other proof of ti>e clear in-
tentions of bis heart, than by his oath? Hit
oath is admitted as nroof Bgaiast him, in ilie
■cknonledgnierit of his Bnok ; and sbalt it not
beadmitt^to him, to dear the inligriiy nf
his heart I We beseech your lordOiipg to loi>k
upon him, as ndt writing these ihinus out of
perversvness >if spirit, but out of tlie nhundance
of bis heart transtiorled with zeal ngnin^t the
growing evils, which have befiUlea many nf this
DatioD, and some of liit o.wn acquaintance, by
their frei^uentiiig of Sioge-Plays. We that
know him must say, as far at our knowledge
will give u* leave, that in all pmsiiges that
hare fallen from him to us, he hnth eipressed
himself full nf devotion and dnty lo bis ma-
jftty aud the queen; aud shall humbly take
leave (o ottft tume passage out of hij hook,
wliich Ho bear evidence, that he dotli tpeak
well of bulh their majesties, and of the stare;
md thut by inferences and distinctions tber*
made : and »hut is it but mfereqces made out
of (iiher passages nf his Book, which doth re-
flect upon bim .' — Which Passages were opened
by the Cuuiitel, hut not read.
The Sentence.
TlireeStar-Chaoiber days having been spent
in llie hearing of ihis Caase, the lords lal ibt
fourth day to proceed in Sciitcnre, which held
tilir[)urof the cluck in the nfleroooii; undiliey
piiss«d such Sentence, on Mr. Prynn, m is
eiprtsaed in ihe ensuing speeches, which in
effect C'lmpri'bend uil that was suid by others.
The fint was of Francii Lord Collmglon,
Chancellor of the Sxrhequer, whiKe turn was
be|;m fiist to spv ik, ns being in the louest
d^reeuf quality ovhid place. And commonly
be that brginnei h. as he openetb the matter- at
laige, sii he inclineth thereby many lurd> to
forbeur making of speeches, und nniy.to de-
clare themselves lo concur in Sentence wiih
liim that began fint, or with siime oiber lord
that spake before, a» their judgniems lead
My Inrds (snid my lord CWtiH^fint), hit ma-
jesty 9 Aitnmey.GeiieMl hatli brouglit Mr.
Pryim before yi>ur lordebips, with other Pet«n>
dants, Thomas Hacklier, Michael Spurkc, &c.
It is for pubtighing a libi-llunt Book, or Volume
of Libel-, to Ilie tcuodul of his majesty and the
state. To my undersinnding it may he more
propeily said, tire i:rent and high malice of Mr,
Pry II II, published and declared inihat LibtUous
Book; a malice enpresied m a inaunerHgainsc
alt mankind, and the best sort of mnnkiudf
Bjininst king, pHnce, peers, pcelates, magis-
trates and goiemurs, and trulyiu a mnnner
agaiuit oil things. But ihnt whirb bath been
more remarkable, is, hi« sptctn at>ainst tba
Churr-h and Government i>fil: therefore for
iliat 1 ivill not senieiite him, (t'rcnu>e Mr.
Attorney doih forbear tn pr'>!«ci>te against bim,
fiirtbatwhich belon);eih lo ihi^ ChurchJ yet it is
an argument of bi-grext and high lunlice : and
when I cDD'-ider of that, which hath he«n so
often repeated, that lie writ this Book alune,
surely be was atuttpd inimediaiely by rbc
Devil himself, or rather lie hath assisted ihe
Detil. He bath written a hook aguiint the due
reverence and honour, which allLhrisliausowa
lo our Saviour Jesus, ihis doih cnniince my
.ludginent against him ; but the Bonk (as Mr.
Attorney soitb) declares ihe man, itis the
witness i and if your birdtliips observe llie par-
licularv and style nfit, you nill say it n »
strange thing ; ilie very style doth declare the
intent oflheman, and thut it (asMr. Attnmey
said) to uork a discuntent and . dislike in iha
king's people agninst ibe Church and Govern-
ment and disiil.eilienci- Ut our ||Tacif>us soie-
reign the kii^g. If Mr. Prynn tbould lie d»>
ronnded uhni be nould have, heliketb nutbiiu,
no state or sex ; music, dnnciqg, &c. unlawml
even in kings; no kind of rMceatioD, uo kind
473] STATE TRUI^, S Cbmlei L 16S2-3.— j
of cmcrlainKCnt, do, not to ntucb u btirking,
all KT* dkinned. The very irutli, Mr. Prjun
would have a Dew goTerEusent, he would have
• new church, be would hive new laws, dpw
en attainment, God knows what ha would
hare; anew king he would have, and have all
the people of his miod, to he discouteated with
their king and goTernmeRt,
Mr. Prvnn confcsieth he did write the Book,
and ic is true he did endeavour the priming of
it, iiud the puhlishing of it, this ig proved very
wcH ; yea, out Mr, Prjnn had no other inten-
tion but a lcnderne&B of conscience, he meant
bo hurt to the king or state (as hil Counsel
Mid): bat Mr. Attomej answered iheni, that
he is not the decbrer of his inlenliuns, he
must be Judged by thi Book,bj hii wonis, more
certainlj bj the effect ; for nil good men da
receive scandal by this B^k, and all of Mr.
FryDD'sbumoor were glad of tlib Book. Wben
I consider what kind of Liftct it is, it \i not like
other libels : other lihds hsrc been by penon*
diKonteuted, some poor rogues scattered up
and down ; bat here is ■ libel in fbho, and in
print, and jostifieth itself by authors with an
tiigb hand, ' That is thrre,' and ' that is there.'
And (my lord) when I consider those higli
pQSSt^sin his Book, I protest unto you, they
are tlnogs to he abhorred ; tbry are not spoken
relatively (ns his counsel would have it] but po-
ftilively, ' That our English ladies, shorn and
' friuled i^adams, hure lost ibeir modesty ;
' that the Dcril is only hnnnnred in daaciiti; ;
• thnt I'lnysarethe chief delight of the Devil;
' ihni they thnt fiequeni pkya are damned, and
' so are all Chat do not cuacuf vHtii him in his
' opinion. Whores, Panders, Tuul incarnate
.' Devils, Judus's to ibeir Lord and Master, Sic.
' princes dancing in iheir own uenons,' his
censure of tbtni is infiia)out,&c. But tlie foul-
est of bU is, ' That this was the cause of aa-
' timely ends hi princes.'
My lurdi, shall notatl ihst hear these things
ffk Ptym, [no
tfllely condemned to be hnnited and quartered
fur far less matters? One Peacbam, I wnsmy-
.»elf employed with uthen in the examining of
him ; lie cuufesled, that the Writing tor wliich
he was questioned, was a Sermon tliat he did
intend tu preach: the Word* were against the
person of the kitif;, yet he never preached it;
yet because he had written it with aii intention
to preach it, |>e was bruu^ht up on this point
and condemned to die. But this Book u in
print; it is against alt magitcrBles, and' parti-
cularly ngniiist ihi: king our soTereJgn, and liii
blessed consort. And yet, my lords, it pleasetb
hismojeityto let Mr. I'rynu have his trial
here. I will not troahlc your lordships »itb
•ny more pens uf the Book : Mr. Attorney
noted unio your lordships that yon shnuld see
how necessary it was, thiit Mr. Pryun sbonld
be cle.-in cut off, at one that li.iih a long time
endeavoured lo move tiie people to disobedi-
•nce agjiust th? kjnf , &c. Su I say with Mr.
Attuiuey, it j^igh liuie thai iUr. Pryas nay
iar •■ may p> with the CeMtm
of this Court. My lords, Mr. Ptynn ii bcctcc
dealt withal, than he sroald have priaMi dealt
with; he hath badrery fair trials.
For his Defence, I look notice of it like xiie :
ia remember that all tliose geutlauen, that
were employed and assigned as counsel br kis
Defence, every one of ihem began to erase
mercy of the Court ; yet they cone «itb a
DeFeoce and J lutili cation, so far as ibeir cause
wouU bear. Mr. Holboure taid, llMt 6»
Flayers, they were rogues hy tbc si
■etMr. ■ ■...-.
' by the f .
lords, he said, bis intention was agniDit public
and common Playa; yet («ek all hii book
thorow, and you tbuli find it is a^ast playtin
princes palacsL His intention new mutt bi
understood by his Book, and by his watdi; «d4
that which be doth apply of any author is hit
own. And I think hit Defence did a^rarata
bis offenea. As lo his Defence agaiiut tbt
ladies, lie saitb, he tpeadccth it Telaiivdy and
nut puutirely ; yet be aaith, ■ Uur 2a^
' Indies are to and to wboiith, Stc' And Kit
that part of his Book, wherein he coudemni
Murder, Mr. Ptynn wiU bare mnrdtr ualasfalj
bat execution of priaeei is tuK nu[der,aiid
theref(H« thnt is a lawful act. Mr, Atloraer
said well, the end of this man and John Man-
anna, (a Jesuit) &c. ihey are all one, ibey ^
cry malice against princes.
I shall humbly crave pardon, and diicliiitt
ray cnnacience, and ritalllct you/ lotdtliijN tee,
boff I understand the sense, and that so I H
tojudge ; and I conceive kio ba as your led-
ships »r, (bat the malice oftbit Book ia aiaaut
king and state ; and, my lards, witii this laoi*
I do in the first place begin Ceotuie widi
his Book ; I condemn it to be bamt, in Ika
mnit polilic maimer that can be, TIte manner
in cither countries is, (where such Books aic)
to be humi by the hanunaa, though nut tued ia
EtigUad (yet I t>isb it may, in respect of iks
stmngeae» and heinoaaaeas of the natw
contained in i^J to have a atreuta maiuera
buruiu^; theret'ore I shall desire it may b* M
burnt by the hand of the banpnim. IliiBaj
agrve nith the court, 1 do adjudge Mr. Fryv
to be pnt from the bar, aud lo be for ever dB'
capable of hit professinn. . I do adjudge tiiis
roy lords. That tlie Society of Liucoln's-Ina
do put him out of tiie society ; and hecaint
he liad his oS'spring fniui Oxfuitl (now, Kith a
low voice, snid lb* biiliop oP Cauterhnry, "I
* am sorry that ever Oxford bred such an erH
■ member') there to be degraded. And I do
conilemn Ur. Prynn to stand in tbr piUary »
two places, in Westminster and Chenptne;
and I>iat he shall lose butb his cais, one in each
ptaceg and Hith a Paper oo his head, dcclariog
Iww foul an oftence it is, viz. ' Tluit - it is for
'an infamous Libel ngainailioihtbeiriiiRJesties,
' state and govemmenL' And lasllr, (nay not
lastly) I do cnnderon him in AfiOOl. Fineio tht
king. And lastly, perpetual Iwpiiioaaie&t.
Goo;;lc
Jt77] STATE TRIAIA 9 Chablm I. \632-S.—/orwriiaig Us " Hutrio-maaiix." [5MI
Tltere are other DefentlBnU, Tliomas Buck-
oer, whom I conceive lu be tlie chii|ilHin charg-
«d viih Uie licensing <>f the Bonk. I observe,
that Mr. Attoracy luth litileQr authiug prose-
cate<l •H^iiiu him. It ii (.lid, tie did cumbine
with the Writer und Staiinuer fur this infauious
libel. It daih appear that he did license it,
or at least 64 paijvs thereof j I think it be also
true, tliat Idr. Buckiierdid see the Book aAer
it was primed. U is Bsid, fur bi^ excuse. That
Mr> fiuckiier was cfizeiied and suriiriwd by
Mr. Vrjau and Spnrket; but ic b (iluin lie li-
censed II, oratleast etpitttes; therefurc- 1 sbiill
judite HccordinE to the proof, as it is the usual
custom uf ibiiCourt. I must judKB Mr. Buck-
Mr to be wurtbjr of a very sliarp SeiiUnce, for
cettaiDlji there is a Tery great iiicoiivruieiice
fdUen upon the state, fur want uf due exami-
natioB : (o i*hnt purpose is ibere aa tiauiina-
tiaa of Bonks, if there sliaJI be a coniiivnuce
and ivinkiii^ nt the party that Hoih M I shall
ihimk lUr. Buckner nut only norrhy of asevere
tcpKliensinii, but I slinll censure liini first to
have IjnprisoDinent according to tlie course of
Ihe court, and 50^. Fine to the king.
Now, my lords, the next is Michael Spaikes,
and he is the third; and lie is [he Primer of
the Book ; and binder, and publisher thereof.
]• bi» Defence he huth shewed yoar lurdrhips
a piece of the Book licensed by Mr. BucLner,
and saith, it vta all licented, but tli^t lie proves
not; but thu it was entered in the Stntinuers-
liali, tlmt b« pmvei. But 1 do find, ihnt be
persuaded men to bay this Book after it was
prohibiiedi and ticfore it was pmh^biled he
persuaded men to buy it, saying, ' It was an
< excel lent Book, and it would be cslled in,'
and then sell well. I do fine SparHes 500/. to
the king, and to stand in the pillory, witltuut
tnuchiiig of bis ears, niib a Paper on bts hesd lo
declare his offence, and it i^ most n.eccssary in
these times ; and fur the pillory to be in Paul's
Cbuich-yard. (' It is a consecrated pluce,'
Mith iJie Archbishop of Canterbury). I cry
your grace's mercy (said my lord Cnttiiigioo)
then lei it he in -Clicapside. For the obiter
thr«e, I find that Mr. Attnrney doth not pro-
•ecute them; th:;n.'fotc, my lords, I do not cen-
The nest in course that sp<ike after ilie lord
Cottington, wiis the L. C. J. lUchardtoa. — My
Lords 1 Since I have had the hnnunr tn ntiend
this Court, writing and printing of BooLh have
bceu esceediugly found l^ult wilhai, and have
received a slinrp crtisure, and it dotli ^riiw
every day worse and wnrse; every man lakclh
apon hitn tu uudcrstniid what lie conceiveih,
and ihinks he ii Dubody except ha be in print.
Wc are trouliled bore with a Book,ii monster,
' Monstrum horrenduto, infurtne, ingens !' It
liatb been a question who ii the Author of this
Sook } Surely 1 am snti^lied in my cousiueiice
be is the author of ii ; but truly give me leave,
1 do iiul think Mr. Pryon is the only actor in
this book, hut tluit iliei'e were iriooy heads
anil hands therein besides himself. I woidd
to God in heaven, the d«vil and all else thai
V41L. 111.
h;id their bends nud hands Ihereiu besides Mr.
I'rynn, were, ke. for I think they are a'A ill-
wiJters to the ttdtp, und deserve severe punish- -
merit us WL'll us Mr. Prynn doth. This Book '
is th<' suiiject of this day's work, and it U nu-
nevtd, l>y Mr. Aituraey, to the very informa-
For the Bi>uk,Ido hntd it a most scandidous,
irifumaus Libel to the kind's miijesij, n n>ost
pious nud religious king ; in the i}UL-eii's ma-
jesty, a jiiost enctUfnt and gracious que<n.:
such a one as this kingdom ncvtr enjuyid tlie
like, and I think tlie eutih never hiid a belter.
It is srundjlous to all the liunourahle \oiAt, and
the kingdom itself, and to nil sorts of people.
I say, eye never saw, ncjr ear ever beard of
such a. scnndulous and seditious ihiiig as tliit
mig-sbapen monster is. How tcandaluns a
lliiug it IS, hutb appeared already lo your lord-
ships, by the kliit; und queen's couiiiel ajpiitist
Mr. Prynn; 1 will not for my pait repent.
Vet giie me leave to read a, word or tno,
where he comeih to tell your lordships of the
ReiisoiiEwhy lie writ this bo"k : Been use ha
saw tlie umnbrr of llie ptuyE, play-books,
play-liuuiiters, and play-houses so exceedingly
increased, there leiiig'ahov(-40,U0n pt^y- books,
being now more vendible ihiin the thniceet
Sermons. What saitJi he in tW Kpisile IJedi-
calory, speiiking of pluy-honks ? ' Tbey lire sii
' b^ a puce, and are prnitid in far beiti-r pn-.
' uer (liim mo>t octavo and quuno l<iUes, wliicb
' liardly find so good vcuc ns they; and then
' come ill such aiiuiidniice, us ti.ej exceed all
' nuiubfr, und it U b. year's lime to peruse
' ihein over^ they are so mulriplleit ■' nnd then
he putte;b iii the margin, ' lien Juliiison, &c.
' pri'ite<l in better paper lluin must bililcs.
' Now if Uiis be nox a t,ix u^on the kingdom,
' to print ibete books in belter pnper than the
' Bihle itself, for my pait I leave it to your
' lordships.' This inuuster, this bagp, mis-
shapen nioiitier, [ s:iv, it is nnibing hut line,
and venom ngiitiistairsorts of people. Itiia
■truuge thing »hat this lunn cakeili upon hhn i
He is not like those Powder-Tnutoi's, ihry
would have Uuhii up all at, once; ibisihmweth
nil down nt once to helt tweihcr, nod detive;w
eth them over to Satan. I lieseech your lord-
ships tn give me leave : ' Stuge-pmys,' &c.
itli he, ' none are gainers and honoured by
tht.'n
have taken their
' go to eiemal totmciit hereafter.' And this
mukt be the eiid of tliis monster's horrible sen-
tence, lie siiih, 'So many us ate in play-
■ bousts, are so .uinny uni'lenn spirits ;' aud
that ' I' lay-haunters ate little better than b-
' carnate devils.' He doth nut only condcma
all Play-'Vriters, but nil protectnrs of then,
sud alt behold iiig of iliem; und dancing at
playa, and siiiein|^nt phiys, tbey are all dnmucd,
aud (hat no less than to hell. I beseech your
lurdsUps to give me leave hut in a word to read
unto you nlint he writes of dnncioK, &c. ', It ia
' the Devil's profession ; and be tjiat enteretb
' into a dance, enteicih into a devilish prof^^
- J791 STATE TIUALS, 9 Chabies L l03Q-i.—Proakdingi agamit Wm. Prym, [5S0
' sion ; nnd so inanv pnccs i<i ■ dunce, Mmanjr
' paces to hell ;' Tliis is that wliicli he coucci*-
ctli or Duncing, ' The woinan tliat iingeth in
* the dnnce, is ihe prioress of the Deril, ond
* tliose that answer nre clerks, nnd the be-
* holders ure tlie pnrishioners. nnd the miuic
' are hells, and the fiddlers are tlic minstrels of
' ibc Devi).' I siiid it nas a stilitious Libel ;
tliis point of sedition is ilie only thtnK ihatWu-
hl«s me, and tl is that wliich 1 shidi olTcr to
jDur lordships: For I do know ii, the good
opinion, heart, will and affections nf the kin^s
people and suhj«as are the kind's greatest
treasure. Now'jf thijhe so, then for bdj nUiu
cunniniily to undrrmine thne things, to take
nway the hearts of the subjecte frnin ihe king,
and to bring tlie king into an ill opinion among
hit people, tliis is amott dsinned oiTencc ; and
if Twere in mjr proper place, and Mr. Pijnn
brought belore me, I should go another wav to
worker I protest unio your lordships, it maketh
ni; heart lo swell, and my blood in my veins
to hoil, so cold as lorn, to' see this^rany thing
attempted which may endan^r my t(racioas
■oierergn ; it is to tne the greatest comfort in
this world to behold his prosperiiy.
Much hnth been spoken concemiug these
rhiiigB, and Boroething by my lord Coltington
before ofe ; hut good my lordo, give me leave
to reiaeinber you one or two Passaiies, not jet
spoken of. He writcrh thus : ■ That Nem'i
' acting and frequeming I'lays nns Che chiefest
' cnuEe that stirred up otLrn to conspire his
' death.' Would any man think, that his act-
ing and rrequenliiig of plajs wos the chiefesc
He nriteth in another place n-orse than this,
Fol. 464. 'Ttebellins Pollio relates, Tbnt
' Martian, Heraclius, and Claudius, three ivor-
' Ihy Romans, conspired together to murder
' Gailieniis the emperor (a man much besotted,
' and taken up witli Plays, tn which he likewise
' drew the tna^iitrates and people by bit lewd
' eitamples) as FUvius and oiliers cnrspired
' Neros murder for the self-same cause, &«','
Now, my lord!, that they should he called
three worthy peraous that do rotispire an em-
peror's dealt), (though a itigked emperor) it is
no Christian exprcsiinn.
If subjects have an ill prince, marry what is
the remedy i They must pray to God to forgive
him, and not soj they are worthy subjects that
do kill him : If they were wonby acts, Mr.
Prytin, I can teU what you are (Mr. Prynn
standing during the Ceiiiare behind ibe L. C.
J. Richardson, aud archbishop Neal). No
man wilt conspire to murder a king thai can be
■ worthy actor ; fiir the very tliought of it is
high-lrcason, Uespenketh nf the«e three, that
ihey were three worthy Romans that did cen-
spire to murder Nero. This is most horrible,
and liere can be no manner of exposition, but
in the wont tense : for his excuse, he hath
made none at nil, only it ivs« not his intention,
Good Mr. Pryhn, you are a Uivyer. In-
tWttOD ! I know where the word atandeth
•qm), M that yoD may take ibe iotentioii tbii
xiaji or tliat way, with the right-hand or left-
hand, there to ihvt case. you niny speak the in-
tention ; but where tlia words are plain and
positive, as in jniur ho6k%, here i« no help of
intention In the world : your Words are plain
and clear, therefore you can never make any
defence at all out of that. Not to hold your
lordships any longer, my lords, it is a most
wicked, inRimout, scandalous, and sedition
Libel. Mr, Pyd", I ntnst now come to my
Sentence, though I am very sorry, for I haie
known you long, yet now I most utterly fomke
you ; for I find that you have forsaken God,
and bis religion, and vour allegiance, obedi-
ence, and honour, whicn you owe to both then'
excellent m^estin, the rule of charity to all
noble ladies, and petwns in the kini^dom, and
forsaken all goodness. Therefore Mr. Frynn,
I sliall proceeed to my Censure, wherein I agree
with my lord Coltington, as he began very
well: First, fur the bumin;; of the Book in as.
disgraceful a manner as may be, whether in
Chenpside or Paul's Church-yard ; for tboajh
Paul's Church-yard be a consecrated place, yet
Hereticid Books hate been burnt in ihiC place.
And because Mr. Prynn is of lincoln s-Inn,
and that his profession may not sustain dis-
grace by his punishment, I do think it Gt, «itb
my lord Coltington, that be be put &om Ihe
bar, and degraded in the University ; and I
lenve to my birds, the lord bishops, to see that
done; and for the pillory, I hold it juat and
equni, though there were no statute for it. In
the case of a high crime it may be dane by the
discretion of the court, so I do agree to that
[OD. I fine htm 5,000f, and I know he is ai
well able to pay 5,000/. as one half of 1,000'.
and perpetual Imprisonment I do think £t lot
him, and to be restrained from writing, neither
to have pen, ink, nor paper ; yet lei liim hart
some pretty Pray er-Book, to pray to God to
forgive him his sins ; but to write, in good fnilh .
I would never have him : For, Mr. Prynn, I do
judge you by your Book lo be an insolent spi-
rit, and one that did think by this Book U> hsre
got the name of a Reformer, to set up the Pa-
ritan or Scparatiji faction. I wonld not hare
Mr. Prynn go without a recognition of his rf-
fence to the king and queen's majesty. I iff*'
to the Sentence on Buckner and Sparkes.
Secretary Cook. By this vast Book of Mr.
Prynn's, it appeareth he haih read more than
he hath studied, and studied more than he bath
considered; whereas if he hod read bat one
sentence of Solomon, it had saved him frnm
the danger he is now like to fall into. The
Preacher saith, ' Be not overjust, nor make
' thyself nveivwiie, for why wife thou destnw
' ihyselfr My lords, it is a Sentence requireti,
much siudyand consideration. It is most ee^
tain, that righteousness and wisdotp are wen
virtues, as they help forward juatice ; hut "»*»
wisdom is miied with a man'a own humouH,
as for the most part it is with flesh and blood,
there is danger ofstnuuing it l«o far, and "*'
iKill tend to the dntroHioD of him and oinn*.
^>;;lo
ASl] SrATETBl!LLS,SCaiLTiLii.l. 1G32-S.— for icriiitg hit "HisirKi-mufu." [S89
mankind. But I love not much lo n^graTsl*
ofTences, wliicli of themselves Dre heavy eifou)(h.
Examples are too pregnant of ihii, and be roa;
take it Irom n good Auibor, even from Christ
himwlf. VVhea bis Apostles, nut of zeal to
their (naster, would have called for fire from
Heaven luainst the Saitinritans that refused to
enierfBin nim, the HOsiver wns, ' You koow not
' of what spirit ji'u are,' I would Mr. Prj-nn
would have coDbidered tliis.
There is a gooil Spirit that ismc^k, tempered
(rith niodesty and Immiliiy, >vitli loildness and
nith equity; and such a spirit ia always tender,
not lo destroy, root up, overthrow, but to bind,
repair and preserve. But there is nnoiher fiery
ifurit, wliicn is alwnya casting of lire, nothing
but damnatioTi and destructiun ; certninly tuch
B^Hinrit ever tends to Ills oivn confusion. And
if iDis be well olisarerl, every man shnil find
it true, that such n spirit ever cometh before
destruction. I wish Mr. Prrnn were not an ill
example of thii. Oenainly, mv lords, rice and
corruption ouj>lit not only to be reprehended,
bat to be puDislied severely, and that sharply
too where it is; but Mr. Prynn khnuld have
considered, every man is not a fit reprehender.
He had no mvitation, nor office, nnr interest lo
a talent which doth not belong unin
If magistrates and princes should inveigh
^inst all things, and tolerate nothjnf^, we must
live DO longer among men; and certainly, if ive
wiilbe thougbtio live with them that are wholly
viituoQs, we must go outof the world ; we have
a good author for this. But, my lords, a lole-
mtioD must be used, and that Mr. Prynu would
have found, if be bid considered hisonn body:
•ball a man upon every slight distemper and
disorder In his body take physic f Or shall ill-
P"
■ritb it. And as
employ a
be purged tilt he purge all out i Cet^
will purge spirit hfe and all away
tatnly be
"hit,
n the politic, tber
ibe natural body,
DDst be a toleration and
be governed without it,
and we have a warrant fur it. Did not Christ
himself forbid the cutting out of the lares, lest
th« should nluck corn, and destroy that too f
I ibiuk, if Mr. Prynn should have been asked
the question that Naamtn did to ibe prophet,
he would not at all have bid ' go away in pMce,'
be would have I hrealened HelTaBd Destruction.
There is a Christian wisdooi, and there must
be a toleration in all states. And certainly the
fadlla that liave been tolerated in oil times were
««iter than modest Flays, or modest Dancing.
It is not my intention, nnther do I think it is
the intention of any of your lordships, to apo-
loipze for Stage-Phiys, much less for ^le abuse
of tbem;I wish, and so I think dot h every
good man, that the abuse of tbem were re-
drained ; hut, my lords, not by railing, carsing,
damning, inceigbin):, &c. not only agaioil the
faults and players themselves, but against all
spectators, and those that come to them, end
that of all degrees, and with such bitterness
and acrimony, thrit in nil the authors alleged,
which are infinite, there is not to be found an
ciample. My lords, I nm very sorry he bath
so carried himself, that a man tnay justly fear
he is the Timon that bkth a quarrel against
He caltetlt his Book Hist
therein he slienelh himself like unto Ajax,
' Authrojioiiiiisiix,' .is the Grecians called him,
the Scourge of till mankind, that is, lLewl)ip|ier
nod the «l)ip. I cnnnot but concur nilh the
Censure oheaHy begun by my lord Cnitingtoii,
given against M r. Prynn, Buckner and Sparkes.
Such swanus of tnutmurers as tliis day dis-
cloK themselves, are they not fenri'ul symptoms
ofihissick and diseased time? Ought we not
mtlier with more justice and fear apprehend
those beavy judgments nbich this minor Pro-
pliet, prophet Prynn, hatJi denouncrd against
this laud, for tolerating indifferent tilings, to
fall upon usforsutfering ttiem, like tliose Mu-
tineers gainst Moses and Aaron, as not fit to
breathe f My lords, it is high time to make »
lustmiion to purge the air. And when will
Justice ever bring a more fit oblation than tliit
Achan? Adam, iti the b^inning, put names
on creatures correspondent to their natures :
the Title he hath given this Book is Hulrio-
amiix, or rather, as Mr. secretary Cook olv -
served, Anthropoaiaitit ; but th^t comes not
home, itdeserres a far higher title; Damnation,
in plain English, if prince, prelacy, peers and
people. Never did Pope in Cathldra, assisted
with the spirit of infallibility, more positivelj
and more peremptorily condemn llcreticks and
HercsT, than this daih mankind. Lest an*
partial Auditor may think me transported with
passion, to judge of the base liveries he be-
stowelh upon court and courtiers, I,shalFdo
that which a Judge ought to do, viz. aisiit tba
Ptisnnec at the bar. Give me leave to, re-
member what Mr. Attorney let (all the other
day. I will lake bold of it for the gentleman'a
advantage. That ihia gentleman lud no miv
sion ; if he had had a mission, it woald hitva
quailed the offence. Our hiewed Saviour,
when he conversed in this world, chose Apos-
tles, whom he sent eftiT into tha world, ■ lie,
' pra:dicate,' &c. to shew the way of Salvation
to mankind. Faith, hope, and chuity, were
the steps of this Jacob's ladder lo ascend Hea-
ven by. The devil, who hates evervman upoii
earth, played lite divine, cited books, wroogbt
mitacln ; and he will have his disciples too,
as be'had his confessors and martyrs. My
brds, litis comempt, disloyalty, and despair,
are ihe ropes which thii emissary lets down (o
his great master's kingdom for a general ser-
vice. My lorils, ns the teiior of their commis-
sion nas different, so are the ways : these holy
men advanced their cause in former times bj
meekness, humility, patience to bear with thft
weaknesi nnd infirmities of their brethren ; ihay
tnui>ht obedience to masistracy, even for con-
scieiice>sake ) iliey divided not their eslatrs
into factions; they (ietmctcrf from none, ihry
siiught the sulvarion nf men's saul>, and guided
tlieir bodies and affections answerably; they
, STATE TRIAU, tt C»*Bi« I. \a5'2-3.-^Pnxxedingt agaiMl Ifm. Piyim. [3St
fnne to Cicsiir the ihinp that were Ciesnr's ; if
princes »eie hiiil, tliey praifcil fbnhciu, tt*)t(Ki<l|
they praisBd Oi.d Eir lliciii ; however, iliey bore
wiihiheiD: this "lu the rluciriiie of tlie Pri-
mitive Cliiircli, nnd this ihcy did. I Hppeul tu
my liirdilhai h^iL- reml ihis Borik, ifi'Qr. Prynn
li^s lint nirh brciich of fuith, dNchnrced hit
grenC Master'* end. My lordg, when Gud liud
HCide nil his WorLs, lie lonked upon them and
!»« that ihey were gnoil. Ti)istteiitleiii;in, the
Devil lmriii<; put spectacles on his nose, says,
ihjt all is bud : no recreation, vointinn, no
•audition gud ; neitlier mx, magistrate, ordi-
nance, cu-iom, divine and humuo, ilii'ii!! uni-
mntc, Inauimitte. all,my lord», wnipt up in iiiauu
^luniffn, all in the Diichof Deitructiun. Here,
my lurds, we may observe the grenC pniilcnce
of ihls Prince of Darkne>s, n aoui so frauiihl of
mflhce, so void of humanity, that it gnr^elh nut
■11 the lihh, impiety and iuiqoity tliat the (lis-
•onlcnt of ttiis age dolh co'itract a^ioit the
church and state, Bot it may be some rolliiwer
of his irdl'say. It was tltei)rideand uickedness
•f t!ie thne« that pronipied bin) m this work,
and SEC iiis leal, tliroiTf(h tenderness of con-
iciencc, to write litis Boot. My lord*, you
may know an unclean bird by his ttftthers; let
hiv be uiipluined, unmasked, putlolf the de-
•eitrul vizai'd, and see how he appeareih : ihis
brittle C'liiBcience Brollier, ilmt peihnpa starts
at ihc sight of the C.irner-Cap, sweat! at the
Surplice, « noons at the sign of the Cross, and
will rB:h«r die than put on Woman's n[>parel to
tave his life; yet he i> so zeolons tor the ad-
vancement of his Babel, that he invents leciom,
coins new stMutes, corrupts, misapplies teit«
Hiih fiibc inierpreiatioiis, dishonouis all men,
defiunei all women, equivocates, lyes ; and yet
(his man is a holv man, a pillar of the chuit-h!
. Do you, Mr. Pryhn, find fault with the ' court
' and cnurCiers habji,' ' silk aod sattin divines?
I may any of you, you an all purple within, all
pride, malice, «od oil disloyalty p ysn are like
m tumbler, who it commonly squiut-eyed, yon
look one way, and run another way: thouEb
ma seemed fay the title uf your Book to scourge
stafTE-Plays, yet it' was to mtike pciiple be-
lieve, that there was an apostacy m the Ma-
giscmtei. But, my lordi, admit all this to be
venial asd pardimablB. thit pigmy groncth a
Ijiiuit, and iuvadai the Godit themselves;
where we enjoy this felicity under a gracious
pritice with si> rr^uch advaatnge, as to have
the light of die Gospel, whilst iili
' kept in darkneta, the happiue^s uf
- creatians to the Itealth of the body, the blessed
f;a*emment we ouw hnve: When did ever
■Church su 6<>urish, and State better prosper?
And since the Plafjues happened, none In
been aent amont; iis such as this caterpillar
What vein hath opened his anger? Or v
bath let out hi* fury ? Wheii did ever man
Mrh a ijuietut tit ns in these dnysl Yet in I
■f»ld«i aee is there not a Shiinei amoniist
that curseth the Anointed of the Lnrd ?
poffed with pride, nnrcan theheam<>of the
ftitw bis froaeu heart, and this man appeareth
And now, my lords, pardon me, aa b*
iiath wounded his iiiaJR-ty in his liead, power
and gorernment, and her majesly, his majesty's
dear consnrt, tnir royal queen, niid my gracroul
iiiiitreM ; I .ci>n apare liini no loujicr,! aiu at
hii'beart. Ohl ijvmataal &c. If any can
iniii)noui napersioBs and censures on our qaeni'
anil her ionocenc^, silence ireuld prove impiuy
rather thafi ingratitude in me, that ilu daily con-
template her virtues i I will prnise her fur that
which is her own, she ilriuks at the spring-liead, .
whtlst others take up at the stream. I shall
not alter the great truth that haUi been said,
with a heart as full of devotion, as a tongue of
cliKjuence, (he oihrr day, as it came to bi> part,
(meaning urjohu I'iiich.) My^ lords, betowit
ennmple to all virtue*, the candor of iter tifa, ia
a more powerfiil motive than all precepts, thau
the severest of laws : no hand of fm tune nor of
ii'>wer can hurt her ; l>er heart is full of bnouuri
her soul of chastity; majestr, mildnass and
meekness are so married together, and so im-
paled it) her, that h here the one liegelleth ad-
miration, the other love; her soul of that ei-
cellent temper, so harmnniou^ly composed, b«r
zeal in the ways of Ijod unparatlfled ; her af-
fecttons to her lord >ii great, if ilie nlfond hiin,
inset In lier nnger ; ia all tier actioni
and ailections so elcctii e and judidons, and ■
woman so cnnstKnt fur the redauiption o1' aU
her iCK from all imputation, which men (I know
not how justly) sometimes lay on them ; a prin-
cess, for the sweetness of lier disposition, and
fur compassion, always relieving some oppreMrd
soul, or rewarding some deserving subject;
were all such Saints aa sl>e, I think the Riimaa
church mtxt not to be condemned : on my coo-
scietice she troubleth the gho;Lly fhthcr with
nothioK, but that prbe haih nothing to trotible
him wjthal. And so when I have said all ia
Iter praise, I can never say enough of (!er ei>
cellency ; in the relation whereof an oratw
cannot flatter, nor poet lye: yet is there not
Dcieg among OS, noiwiihftwidrng all the lerEini^
■ations his coonset hath used at the bar \ I csa
bettCT (jrove, tliat he meant the king and ijueea
by that infamotis Nero, &c. than he protas
I'layns go to Hell : but Mr. Prynn, yuor
iniquity is All), it rnna over, and Jodgoient is
come; It ia not Mr. Attorney that calls for
judgment a^inii you, but it is all mankind,
thay are the parties grieved, and they call filr
jui^ment.
1. Mr. Prynn, I do declare you to bs «
Schism-Mnkeriu thtChurch, «9ediiioB-80"et
in the Common-wen Itb, a wulf in sheep't
chiaihing; in ft word, ' omnium lualnnnK o»-
• <tuisaiinus.' I shnll line him 10,000/. "hidi
is more than he is worth, yet less than be <*•■
seneth ; I will not set him at liberty no dum"
than u i^uiEued iinui Or « mnd dog, who though
he cannot bite, he will for.m ; l« is so far from
being a sociable iobI, that lie is not a rotitwsl
soul ; he is 6t to live in dens with such brasa
of prey, as n-olves and lygers, lili* t»tm^'-
Therefore I do cot»Jenm htm U> ptrpetual 1»-
M5] STATE TKU\LS, 0 C^HAiaxs L miS.-^
iiritnBment, at tlioie monsCeTi, [bat Are no
htOget St to live «mongmen, nor to seejighi.
No* for Corpiml PunUhmeni, my lords, whe-
ther I iboiild bum bim in tbe furehcHd, nr ilit
hiiD in ttte noM ; foT I fiml (hat it is coiit'gwed
ofall, 'bat Dr. Leiglitan'* offence noa )«» than
Mr. i^rjim'*, tlien why thoulrl Mr. Prjiin bnve
• Ins pnaiiliiiient F He tb>t «at guilty of mur>
der was marked in n place » here tie iiiiglit be
•eeii, Ks Cain was. 1 should be loih he should
MCBpc with hi* ears, for be may get a (lerriwig,
which he nnw so much inveighs against, and so
hide the-ii, or force bii consnience to make use
of hUuiila*ei]> love-locks iin both sides ! There-
for* 1 would have bim branded in tlm forehead,
alit in tbe note, ood hit ears cropt too. Mj
lordi, 1 now cnme ro this Onlurc, I can give no
better term tu it, to burn it, as it is commoa in
other cuuntrirs, or olhervise we iliall lury Mr.
Prynn, and luScr bin ghost to walk; 1 shall
therefore concur to the burnin); of the B»uk;
but let there be a Proclamation made, Tiuit
whosoever ih nil keep any of the Books in hi)
hands, and not brin^ thein to some public ma-
gistrate to be burnt in rhe fire, let them foil
under ihe sentence of this Court : for if they
lell into wise nen's hands, or good men's bands,
that were no fear; bat if nniong tbe coinmnn
•ort, mid into weak men's hniids, (hen tender-
nesa of conscience will work something;. l«t
thiiStntrnce he recorded, nnd let it be sent to
the library of Sion, (meaning a college in Ij>n-
■Proeeedingi l^init Sir D. PtAtUt, Ire. [iSH
don) wbith«r a woman, by her iriil, will alloi*
Mr, Prjnn's Work to be se.it.
8. For Mr. Buckoer, I beline thnt he had
no intention at all ibid Work shuuld come
■broad ; be is sold to be a coiifurmable man to
the church of England ; I shall liardly ceusure
him, he.delervelh admoniiiun.
3. For Sparkes, 1 concur in all things : The
leodiiry bxa his olHce taken away from liim by
thif Ciiuri ; I see therefore n'o reason but that
he may be barred from printing nnd selling of
Boiika nnd kept nhotly lo binding of books.
The Senteuee • againit Mr. Prjnii was «t«
i:iited [he tevenih aud tenth days of May fol-
lowingt
9 Bi»hw. Coll. p. «48.
soiier answer" tays Kenneth,
D'Mr. Pryiin's Uook againstPlaysaiid Actinj
it ub'iut the b^inning of November, ' —
a concratnlale rhu kin°*3 return, and di
kctlngfc
[16S3J
hi*
*oyal consort, (he four Inns of Court, by some
of llieir principal members, offered s spleadij
Masque to be performed by their Societies
juintly, as an expression of their iove and dut*
to their raHJesties. The offer was very graci-
ously accepted ; and upon consult art) order of
lh« Benchers, was very nobly perforrped a(
Whitehall on Slirove-Tueaday Feb. iStli, and
again at Merchant-Tayler's-Hall, where the
king, queen, end court, ««re magpiQcentlT
entertained by the «ty."
143. Proceedings in the Star-Chamber against Sir David Fowne,
Sir Thomas Layton, and Henry Fowlis, escj. on a Charge
of oppdsing the King's Service, and traducing his Officers of
State; Hilary: 9 Charles I. a. d. 1633. [2 Rushw. Coll.
p. 215.]
^f The prosecution wst apparently promoted
by lord Wentworth, afterwards the fiunoiis
nrl of Straffurd. It produced disa^eable
oofitequeDOes to the earl ; for on ttw Trial
of his Impeachment lor Treason, sir Da-
¥td Fowlis, aud tir Thomas L.aytoa, two of
tbe Oalendnuts in this case, were material
«>itDeiBe*a»inM bis lordtliip on tbe Mcond
Articlf (^thelapeaobmcni; both s" eating
(o btvtii^ heard him oaa those emphatically
threaieuuig word* to some justices of tlie
peare, ' tbat the kii|(>'l little finger shoukl
* ba heavier than [tie loini of tbe law.' See
SRushtvoflh,149, 151." Haigrave.]
In the monih of February in Hilary Term,
1033, upon an InformRtion in the Star Chani-
ber agmnst sir David Fowlii, sir Thomas Lny-
lon, and Henry Fowlis, esq. defendants, the
cause came to a hearing.
J the court
That whereat tererat Commissions had iuued
imij eat aC hi* iB)ije*t|'scoun of Eacbequcr in
the flih,Tth, and 8th years of his m^estj's n^
directed to the lord viscount Weniworih, antj
to diven o|her lords, kpights, and gentiemei) of
the best aud principal rank and quality in ihof^
nortbeni parts, who were tbereby authoriifit
fur the more ease of tbe couHtry, ^ treat, oom^
mune, aod compound uith all and singular hi|
bigliaess's subjects of the j:iiy and county of
York, and other northern counties tberciu parr
ticularly expressed, aiS wuuld make fine with bit
niajesty for their contempts in not attending
hismiuesty's coronation, tu have taken theordaf
of knighinood, as they ought to have done;
and the said lord viscouut Wentworth was bj
eipms letters from his majesty in that behalf
specially a^ipointed to be collector : and albeit
tne said sir David Fowlis had received maoj
graciuut favours both in honour and profit, m
Weil from king James, as bis now mnjcsty,
which might justly hare incited and stirred bl((
np to all dutiful and grateful thankfulpeis for
tliesame; nercithelessthesaid sirDaiidFowlii
niast undutifuUy, and iogratefully, did not re-
gard tlie same, but harbiiured sonie secret dik-
_ aod ill affection in his heart; fot
5S7] STATE TRIALS, gCiABLuL 1953— Pnttalingiagaifiit Sir D:Poaia,l[C.[t/»
' inan in the country : and that he wu a brnc
* spirit, and a true Yorkshiremaa : aud tlui
' nime durst shen himself stoutly fur the goad
' of llie comitFy, but tlie slid Mr. Malev»er,
' and na* to be honoured tliercfurei' and did
very much commetid him, both tliere, sod U
other places and times, for not tompouuding.
And ihe laid sir David Fowlis being then laid,
it might perhaps prore innre chargeable to the
laid Mr. Malererer, for his wilful standing unl
in that manner ; the said sir David replied,
' That the said Mr. Malererer had put in liii
' plea thereunto, and would easily procure bis
■ discharge, both of (he fines and issues.' And
in truth he had pleaded in his rnnjesi]''! Excl)e>
qner an iniufficieilt plea, and after such liine ai
he h^d paid liGI. for issues, at last he coni-
pouiided for his contemjjt. And feitlier to dis-
courage and hiuder men from compounding, tbt
taid air David Fovlis then also Pledged, ihit
in other counties and shires they hid not ad-
vanced their fines of tnighthood so high, it wii
done bj the commiMioners in Yorkshire, sejing,
tlut there were manj in Backinj^hDmshire nod
Oirordshire, who did utterlj refnse to com-
pound : and thereupon shewed forth n het or
paper of the names of sundry persons of ihiM
tvrocauntie3,thatM)refu«ed to compound. And
the said sir David Fowlis taking notice of Mr.
Ewre'a,And Mr. Pennymau's compounding ivilb
the commissioners, blamed and teproied tbeai
for so doing, saying, ' That they bad by com*
' pounding done theniselves some wrong, and
' that the cnunlrj hereafter would be macb
' irunbled with such impositions.' And theiai|l
sir David Fowlis farther, to b^et and draw a
geoenil disobedience in the hearts of his high-
□ass's people, and to cause them to deny abd
refiue to compound for their knighthood Boa
with the Baia commissioners, and to draw a
scsndal upon the said lonl vi&cuunt Went north,
and to bnng him into discsteem in the hearts
and minds of the gentlemen of that couiiliT,
publicly said and pretended, ' That the peofde
' of Yorkshire did adore him the said lord vii-
' count Wentwnrth, aud were so timorous and
' feariiil to offend his lordship, that they woald
' undergo any charge, rather than dieplenie hiin;
' and that his lordship was much mpected iu
' Yoi^lhire.buiat couKheffnstlomaterespect-
' ed than an ordinary man; tmdchalassoonasliit
' backvra* turned for Ireland, his place ofprest-
* dentship of the council would he bestowed ou
' another msn."" And llie E>iid sir David Fo*!ij,
and tlie defendant Henry Fowlis, did, about the
beeinnin^ of July, 163S, and at other tiinw
publicly, in the hearing uf sundry knighU uuf
gentlemen, lo tlie end to hinder hl> msjeitys
service, _and t- render ihu said lord viscount
Weniwo'rtb i>dious to the inhabitants of York-
shire, and the places and countries where he
was employed as a commissioner, must ftl™j
and untruly sr-nndnlize and wrung ibe<aid loid
vis'Oont Wtntworth. to have received mnoB
money nf the country for knighthood fines by
virtue of the aforesaid commission ; and thW
his brdship had not paid the «in«, eitl>«' '" '*
whereas the said lord viscount Wentworth, and
other his mnjeity's commissioners, carefnlly and
dutifully intended the due eiecntioo of his high-'
■ ..'J eQ[n,],^Q[,s^ Qj,[| hud by virtue
imnned, and giien notice lo Ralph
!S Penniman, esquires, and sundry
others dwelling imd inhabiting near unto the
said sit David Fowlis, to attend the said com-
missioners nt the saiil city of York, fur tlielr
coropounduig for their said fines of knight-
hood ; the said sir David Fowlis most un-
dutifully endeavoured and practised what be
possibly could to oppose his majesty's service
therein, and to dissuade and divert persons
from compounding with the said commissioa-
Crs, and many times pubhcly declared his dis-
like and disnlfection of, and to the said ser-
vice, vhich was generally observed and noted
throughout the couotry where he dwelt ; which
was by him so spoken of intent and purpose to
cause men to forbear and refrain compoandinf,
or resorting to the said commissiooers, to make
any composition fur their aforesaid contempts ;
and thereby animated and encouraged sundry
person-, to stand out, and refiise to make any
(imposition at all, who otherwise would have
compounded with the said commissioners for
their said fiori of Contempt, in not attending at
bis majesty's coronation to take the order of
knighthood, as aforesaid. And in farther pro-
■ecution of his ill afiectionj and to shew his dis>
like of the saiil service, and the niore fully to
expres} and manifest himself, and bis desire for
the hindrance thereof, he the said sir David
Fowlis, at a public meeting, ni the bouse of the
iaki sir'Thomas Layton, in the beginnin|j of tlic
month of July, 1638, did, in divers of bis con-
fciencei with gentlemen concerning the com-
pouudiog with the said lord viscount, aud the
other commissioners for their fines and con-
tempts of kilighthood, publicly afhrm and say,
'That Yorkshiregentlemen had been in time
' past accounted and held stout spirited men,
' and would have stood for their rights and li-
' berties, and were want to be the worthiest of
' all other shires iu the kingdom. And that in
■ former times alt other shires did depend, and
' would direct ell their great actions by that
'county. And that other counties, (or the
' most part, followed and imitated Yorkshire :
' but how in these days Yorksbiremen were be-
' come degenerate, more dastardly and mbra
* cowardly than the men of other counties,
' wanting their wonted courage and spirit, which
' they fonnerly used to have.' \Vhich said
words and speeches thi: said sir David Fowlis
llica used and uttered purposely to dissuade
and discourage persons from comjioundiog for
tbe said contempts and fines for knighthuud, as
aforesaid. And the more to encoumge those
that stood out, and refused to compound, the
piid sir David Fowlis, ai the smne time and
place, eitoUed aod highlv commended ime
James Maleverer, esi). for denying and refu'.inic
to compound with the said commissioneri for
his fines of knighthond, and said, ' that the said
' James Malcceret wu the wisest aud worthiest
5S9]
STATi TRIAl^ g CtiAitLGS I. 1633.^^ tippotitig the King's Service. [590
ighu anil liberliea thereof lo his utterinosl)
■unjcstT, or (he Excheqaer. The contrarj
wliereoi did pUinly, clenrlj, anit evidently Bp-
pcBT by the several tallies nnd constats, which
were produeed and tbewed in open court, lesii-
fjiin^ ih.iC the lord liscounc Wcnttvorth bnd, a
^car before the speukiug o{ those words by tlie
s«id sir David, and his son, pnid unto his mn-
jesty'i receipts for bnightlmod fines the sum of
j!4,500/. b«idei other Hssignments by hi« lord-
diip disbursed aboul die said service amounting
to aboat 700^ of his oivn money, and more
tbau he hod at ttaat time receiceil for his ina-
jesry. And the said sir David Fowtia and
Henry Fowlis most ftdsely and maliciausiy,
not odIt to 'the scandal of his mmesty and
his josiice, but chiefly to wrong and slan-
der the said lord viscount Wentworth, re-
potted, |ave outand nffirmed in the pretence
of diteta knights, gentlemen and others, that
irbeo the said lord viscoiuit WentAorth was
gone into Ireland, all such as had paid their
-tines lo bis lordship, although ihey had his
lordibip's acquittance for the lame, jei they
would and should be forced to pay the same
over again to his majesty's use. And the de-
fendant, Thomas Layton, caused his officer and
bwliff to levy about 39^ issues upon the go'ids
of oftt Mr. Wivel, who formerly compounded
and paid bis fine for kninhthovd, and had his
lordsoip's acquittance for the same ; and that
conplkint had been made to the council at
York, in the absence of ihe laid lord president,
that ibe said sir Thomas Layton's officers or
hailifi bad hy bis privity eia^ed and taken
tOi. worth of the said Wivel's leiiajits goods,
by colour of the said levy, for so levying uf the
' taid issues, wliereh; ihe said council conceiv-
ed, that the same wuuld tnuch cross and oppose
bis majesty's said service, and the cxaclion was
meet lo be puniahed : and therefore did award
and send tbe kind's letter to the loid sir Thomas
Lajion (bcinf then higfa-sheriS' fir the county
of York) for to appear, and answer an inform-
ation exhibited against him, and his servants,
lor such their supposed eiaciions in tkat he-
bair, as was lawful fur the said council to do ;
and caused the said sir Thomni Layion to be
■erred lliercwitb, who immediately shewed it
to the said sir David Fowlis: itien the ^id sir
David Fowlis thereon took upon him in a great
pmeaee and assembly of divers knights and
gentlemen of tbe county (himself being then
one of hii majesty's swoni council in tne snid
BOTthem parti, one of the deputy lieutenants
there, and a Justice of peace i^i the North
R^ing where he then dwelt) to advise and dis-
•wade sir Thomas I^yton, to yield obedience to
hii majesty'* letter, which ihis couri held lo be
• great contempt, and olTence; for that he said
that be held it not fit, that the said sir Thomas
Ijiyion being high-sheriff, should appear, and
answer the said letter, before he bad acquaint-
ed his majesly first therewith, and known tbe
' kioi^s pleasure. The said sir David saying fur-
ther, ^m scorn and contempt of the said court
ami council, whereof' himsdf wai a member,
«ad by fait oath bound to roMBtain and uphold
' That ihe said court was a paper-court, i
' tbe said lord president, and council, had dona
' more ihan ihey could Justify, by ^endiag for
' Ihe said higb-iherifT; and tlint, if he were in
' the sheriif's case, he would not care a dog's
' turd for then).' And the more to draw ifaa
council into disesteem and disrespect in those
pans, he the said sir David ihen al&o said, that
the said council had nothing to dowithajus*
tice of peace ; speaking withal comparatively,
that the office of a justice was aboye the coun>
cil at Ybrk ; the one (meaning a justice of
peace) was hy act of onrliament, the odier
(meaning the court at York) was rande' bat by ■
comniission. And also the said sir David being
reproved by some genllemen there present, who
much disliked his discourse, yet he answered,
* he cared not who heard it, nor if it were pru~
' claimed at the cross.'
To lilts Infbmiation sir Dajpid Fuwlu made ,
this Answer ; " Tlist be hath been so far from
opposing ilie Commissioh coucerning knight-
hood, ns that he hath, according to Iiis power,
advanced the said service; and that he did
pcrswade Jnnies Maleverer, and others, to sub-
mit to the coDimisslooer^, and compound for
their fines, Tliat he did perswade sir 'I homa*
Layton to appear before the lord Wcntivorth,
and the council, upon the king's letter, and de-
nieih ihe words charged upon Irtm. Ilecun-
fesseth he did say, TliDt he knCw not how his
majesty would take it to have a Uigh-dietiff
committed, and disgrared for exticuliflg hi* *
majestJi's writ ; and confesteih, ihnt ii appear*
by the information, that Mr. WiveJ had made
his composition fur knighthood, and thai be re-
ceived his acquittance ; nevertbcss process wa*
irded out uf tile Exchetfuer fi)r levying !»-
n 301. or ther<
.bout
upon tliis defendant did say, that if the lord
Wentxonh h:<d paid in all the monies lie had
received, he might have done well lo hare
taken order, ihiit those who had paid their
money to him, shimld be iree from any trouble,
and not be compelled ti> mokeduuble payment."
Henry Foalii ple.ided noi guilty.
Sir I»omai Laylon for himself tailh; "That
a letter was rened upon him from llie lord pre-
sident and council, he bfing then high-sheriff
of the county, doing matters in the execution
of his office ; and th:it before he was in any
contempt, he was within three days arrested
by the pursivant attending the cimrt, and by
him carried prisoner from his own bouse to
the said council, abiiut thiny miles, and there
remained in the custody uf the said messenger,
till he hsd answered nn iDrormntipn there pre-
ferred against hiui, and interrogatories cnncem-
ing the self- snme matter now charged upon
him ; and before he was discharged, paid the
said Wivel the money levyed bj viriueof tbe
process, and also paid 40i. more, which (a*
was pretended) Appleby, the hniliff, exacted
from the said Wivel. — During all which time
of this defendant's restninl, be was high-sheriff
of tb« county of York, of «U nhich be desii^
•91] fiTATETRIALS, IOCharlesL l63i.^TlK Trial ^ Lord Babinim, [iSS
< wna nt the 0|.cn aMJifs !& the ume couDlv,
' where iliis decree *I>k11 be publicly read.
' And Tartlier ; that tlie uid sir Datid Fo>lii
' ii a penori altngertirr unworthy of the pUcM
' Ite boldi, a) one of the council <•( York, de-
' {luty-lLeuteiiBDt, and judice of pence, obi
' liith breathed out 9n inucli factkin and duo-
' bediriiee. And for (bat be aouglit and ni-
■ deaiuiired tc iltvir dimieem sail icaiidi]
' upon thnt court, uhereol' be biinKlf wn* a
' rtiaraber, and upon tlie principal uScer and
' meinber of the aaid coun, ihr lord Weal-
* worth, a noble perton of siuKular wnr\h and
' merit, and worthily eitiptoired in- a iLaiter of
'grentett truKand importaucB: thecotutUlh
' therefore ordtied and wljuil^, that the uid
' sir David Fowlii' khall, from henceibrtli, b«
' held, ai>d made incapable to have, or eiecate
' any of tlic laid placet, uiid tlial be sball paj
' xood damage to the snid lord Wp.itwurtfa, ti-
■ lator in tfis court, whom tliii court higUj
' coinmeuded fur vindicitcing bit m^eatyibv-
' nour, in tuch a»r*iceof lo undoulited riehCi
' junty appertainine lo the crown, and whidi
' hatb beci> heretofore taken bj maair kiiigi,
raiftht be had; nlbait be might
iuaii; jiISHd the dupendnncc of the suit at
York, yet be dotb naTe the same : and dotli
d«ny, that if the said 40i, wrre exacted by the
eaitf bailiff, over and above the S9t. krvjed upiin
Mr'Wivel, that (he Mm*, or tinj part-thereer
mmie to this defendunt,"
' And it plainly onpeated to this hnnoumlile
court, by- good and sDlficient leMitnony then
flpealyread; that all ih« paniculars beforr
iqentioBcd, whriewith lir David Fowlis stand
chsrued by ihe iiifnnnalian, were fully proved
■gainst bim : wbeceapBn the courr, upnc grave
And deliberate consideration of all (be albre-
laill premiues, dtxlnred ; 'Tliat the Mid sir
< Davidhidiaauywajicnrieavouredand lought
' to oppose liis innjetty't tervice, and hod with-
* al RTcatly and lii)[hlj thereby scandalized bis
* rosjetty, who had done him ao many gracinus
■ favours, and affronted liis service, and had
' unjimly traduced hit majesty's commis-
' •ionere, and great ot&ccri of itate, nnd sitew.
' ed eiceediog malice to the lord deputy : and
' the said sir David speaking thtse wurdi
' charged upon bim, to deter his tnajeity'i sub-
'Jeclafrura making payment of their fines to
' bii mnjcsty's receiver, for knighthood money :
' and that tlie court duly weighing ami coosi-
' dering the tieiaouiocss nf the said defi'mlnni's
* offence therein, add declnriiig ibe same wor-
' ibykof severe und extraordinary punisiinient,
' Ordered :
' That the *atd sir David Fowlii, being n
' f riifcipal offender, ehnll stand, and be cdid-
' niitied 10 the Kleei, there to remain during
* his majesty's pieaiure ; and that be tliall pay
' a fine i>f S.OOO'. to ilia lunjcitj's use ; and
' shall fllso puhlidr aclmuwledKe his great and
* several nAences, both to his ninjaaiy, and the
' villi lord viscount VVentworth ; not ooly in
' this court, bnt in the court of York, and like-
' hi] maieaty's predccasson, couitaDtlr s
' aucccasiveiy. I'liair lordsliiM generally cc
' deiiined the said sir David tlierrfore, and hii
' the hate and scandalous report, that be m
' puhliiJicd against the said lunl Weatwoith,
' ordered nod decreed, that the said sir David
' sboDld pay S.OOOJ. to the said lord WeU-
• I'orlh.'
And touching the Defendant Henry Fowlii,
the cuuri liitewiie ihouEht him worthy of cea-
sure, and ordertd and decreed, That be ihouid
stand committed to lbs Fleet, and pay WOJ.
iioe to his majesty's use.
And rorafmuch at the council urged tio ertof
against sir Thomas Laytoa, they disuiiMed fain
front any fiirlher attendance.
144. Tlie Trial of John LordBALMEBiNO, in Scotland, for a Libel:
10 Charles I .• a. d. 1634. [I Burnet's History of his o*n
Times, p. 32, &c. S Riishw. Coll. p. 283.]
Curia Justiciana 8. D. N. lUgis, tenia in prc-
torio de Edinburgh tertio die inrnils Decent-
bris, 1634, per nobiiem et pra^trntnn co-
mitem, Willielmum comiteni ErroiitB, domi-
inim Hay, magnnm constobularium Scotis,
ac Jutticiarium Oeneralem ejusdem, hoc iu
pane ac in' criminaK proceasD subsequent.
contra Jolintiein dominum de. Balmeiino,
JDElBDe. In conaeqaenoe of Ilia lather's disgrace
and death, he bad lived in retirement, and,
liH the arrival of Charles in Scoiland, wNs
MiIbowd to the conrl. But . his deport-
mmm in the lata pvltaoMiit wat effensire;
viriute commission is S. D. N. R^gis,ii]b Id-
liiunnio sui magni sigilli vpecialiter coustiiat.
Curia legitime affirulat.
ASSKSSOHS lo my Lord Justioa General, sir
Robert Siiot^wiod of Diuinvpace knwht, prew-
dent of the Collei;e of Justice ; sit Jobn Haj
of Burru, knight, clerk rreistrr; sir Jint*
Learmouth of Balcomy, knight baronet
and hi] nams was marked in the list of
the dissenting nobility, from whom tbe rays
of royal favour were tiow iiill)dniwn. A teia-
pcrate atid submissive petition had lieen pre-
pared by these, pears, in order t^ieicolpate
tbemselvet from the imputiiioii of on opposi-
tion to prerogative, nail lo deprecate the (ip>-
ration of tliose articlat from whkh tti^ diswnt-
«d; but whea the d^ifft "»»» imimated W
STA.tr TS.IAIS, IOChablesI. IGS'i.—for a UM.
[594
tcaciiulous Libe), and divulging aiid diipereing
ti aioun^t his nnycsty's IJe^es ; nt the leii»[ «!'
'cOQcenlmg mid uot reiealin; of Mr. VVilliaiu
IIhijj. and not apprehending of him the laid
principn) nuthnr of the s^id inliimujs Lihd, as
IS HI length cuniflined in his Diuay (t. «. ladict-
mrni) rullowing.
Pursuer, sir Thomas Hope of Craighall,
fcn^ht. Advocate to our laid lord, for bii high-
ProcunOois-in Defence, Mr. Roger Mowat,
Ur. Alexander Pearson, Mr. Robert MacfiU,
Mr. John Nitbet, Adiocntes.
Mylord Kildryaine, master of Elphingstoune.
The master of Fraier.
SirThoniMKer of Cavers.
Michael Xlphingstoune of Quarrel.
-Geoi^ Dundiiu,'fiBr of that ilk, (i. e, of
Diindass).
Charles, b<
II before the
signilied in sucli severe
LS instantly abandoned. A copjr
LS surreptitiously transcribed
to Hay of Npughton, his
.ptivate enemy. Th* latter betrayed the secret
to the arcbhisbop of St. Andren's, who repaired
to c<iurt, and, under the specious pretext of al-
Jefiiance, revealed it ts the king. He affirmed
,that the petition was circulated through Scot-
load tu obtain subscriptions; declared that no-
. thing but tl|e opposition of the nobility hod ren-
dered the clergy hithnto so averse From the sur-
.plice; and assured the Ling that their terniC'
.tory qiirit )vuuld be suon subdued, if their pa-
trons were selected for a severs example. A
commiisiun wns issued to eiamine the supposed
offence, and Bilmerioo wh9 imurisoned on a
.warrant obtained by Spottiswood; but the real
author of the petilion, Hnig, an advocate, es-
. caped to the eontinent.^t would be difficult
to coDJectuie, ntiat wns criminal in a petition
ueiiher presented to Charles, nor divul(;ed ex-
cept 10 a confidential friend. Tliere were laws
in Scotland against the utterance of leusings, or
. false rep'irts tending to excite sedition, or to
sow disseDbioos between the king sjid the peo-
.pla; and a9cording to tlie usual extension of
, liiite oSencea, wiioso*vpr listened with an air of
.approbation, and oeitlier revealed tlie report
.IKM securer) its author, was- obnoxious to the
unK capital punishment, as if.equally guilty of
the same crime. As the author and abettor of
, & (ediiinus petition, Balmerino was accordingly
arrqfgu^ fur leusing making ; as the author,
.i^qaute the copy, found in his custody, was
jUgbtly inierlined with bis own hand: as the
.abettor, because he concealed the petition, and
.fV^ered tbe author to escape undiscovered. A
;Petition,cnuchedin'lheinost inoffensive terms,
wai inverted in the. indictment into. a dange-
roo». Libel, ' that deptaycd tlie levrs, and mis-
voil ur. ■ '
llobert Dmmmond of Meidhope.
i\j Lord Advocate pmdueed his majeity'i
Letter, commiuiding him to pursue the pnnnel,
(i. e. the person indicteJ) for the Crimea con-
tained iu big Dittay following 1 together with
an Act of Session, nominating the assessors
foresaids to be assessors to my Lord Justice
General : And therewith produced the said
Ditiay or Indictment, with the exfcuiioui
tlierenf, of tbe whilk the tciiour follows. An^
first the (enuurof his mi\jcsty's Letter, directed
to his majesty's Advocate.
To our right trosty and well-beluved coon-
Bclior, sir Thninas Hone of Craigliali, Lnight
and baronet, our A(!vdcaie for our king-
dom of Scotland.
" C. R. Trusiyand will -beloved counsellor,
na greet you well. After due consideration
having resolved to cause tlie h>i'd Balmcrino he
put to the trial of anc aisyse, (i. e. Jury) nnd
to this purpose it being necessary that you iu-
' construed tite proceeding of the king in the
' late Jfartiameiit, so seditious that its tliouehia
' infected the very air, a cockatrice which jb
' good subject shguld have crusW iu the egg.'
Bulmeriiio, who forbore to crush tills unhnlched
sedition, was oppressed by tbe intrigues of tlie
prelates, and the criminal connivance of the
judges and officers of state. Tbe conrtof ses-
sion appoiriied three assessors to the justice
gcoerul ; Learmouib one of their Dumber, Hay
lord register, and Spoltiswood their, president,
second son of the archbisbup. whose influciice
had incited, and still continued to fumtnt lb*
prosecution. It was represented in tain tliat
the inter! in eetiona, as they softened tlie terma
of ihe petition, could never consulate that libel
which they served tn abate; that the peiitiun
was neither promulgated, nor discloied, except
to a confidential lawyer for his private opinion;
th.-il there was no precedent for ibe trial qf
those whu had neglected to reveal a seditious .
peiformance, or to secure its author, and tlii|t
a sEvere taw never executed must be r^ardetl
:<s havini; passed iuto oblivion ; that it might be
illegal perhaps lo conceal ihe petition wbtn ad-
judged seditious; but as its purport was appa-
TEntly respectful, and intended to concilinle
the king's affection, that no prudenca could dis-
cover a differenicunelniction ivhich was neces-
sarily latent till determined by the court. The
Sjestion WHS already prejadged by the court :
le assessors sustained and referred tlic indict-
ment to a jury, which the earl of TraqunJr had
undertaken to corrupt or intimidate. — As pe-
remptory challenges ore unknown in Scotlnnd,
the jurors are invariably selected by the judge
frum ih? reiurn made hy the clerk of court.
Nine of thejury, with a single exception, wero
ineffectually chulk'Uged ; but when Traipinir, a
niinliterof state, was admi'ted, it was no longer
floubtrut that [be rest were industriously selected
for their hostility to Balmcrino, or their devo-
tion to the crown. The experiment did not en-
tirely suc['«ed. [n the former century, Ggrdoit
2a '
595J STATE THIAlJi, IOCharlesI. last.— Xie iVia/^Iori flai/wnntr, [S96
- funn jrourtelfuf snch pnrlicukrs, aa concein
jaar ch»r|;e in thu legnl proseciilioTl c)f that bu-
sincns ; it ii our (deaiurc, tlmt wiili all conve-
uient diligence yoJ iii«i»t tliereiii, i.j prepnune
<if ane liidlclineiit fit fur ihat purpose, aud that
Toil carefully so on in everr utlier thing, toach^
iti)( the prosetiitiijii cliereor, as j"U .wilT answer
lo us upon }our trust : Aud ihiit by the adiic*
of thC'Chier Justice you prefix a day for the
satae, for which these preteiiti sbull he jour
warrant. Give" ai our inaiiiiTir nf Uaiupton-
Cour', the 14ih of October, 1631."
Follows the Act of Sesiiaii, aomlnalin' the
tnids A»iessor9, at Edinburgh, thv 3d of Dec.
the year of God 1634, ibe nhich day the lords
of Council ai><l sesiiuii nominate, appoint and
elect sir Hol>ert Spiitsivocii of Duiinypace,
hnight. pre-idpnt ut ihe CnlleLie of Justice ; iit
John Uny of Barro. liiiighr, clerk of our sotb-
reign loril's rrgister conucil »n'^ rolls ; and sir
, Jlioie»Lenrinouth nf Balcuniy, knight bnronct,
senator of the said College ol' Justice; tu be
Assessors to William earl of Errol, Great Con-
ginble of Seollani), nnd linviuK commisiioii
ihiio his majesty to be Just ice- General ia"the
criminal pursuit inieniil and depetiding before
th« said Juitice agaiiiit John lird Balmciiiio.
EitrACtuiude liiliroActorumpermemngisiruoi
AU'Miudrumliuy.scriliuin e-miUii ac depo-
latuui hunorabilis donmii Johaosis Uaj de
Barru niilltis, clerici n-gistri ac Consilii
. S. D. N. litt'if, bub meis signo i-t kultKrip-
tioiie mauualibi.*, «ic subscribitur A. Ha;.
Follows the tenour nf the Ditray :
" Chariis bj thefp-aceof God Viae, nfGtmt
Britain, France, eud Ireland, defender i)f the
faith ; to our Idvit (i. e. beloved) James Cur*
rie,-Ormond pursevant, messinger, our sheniT
in ihst pan cunjiinctly ntid tevrrally, speciallj
onetitule, ^reiling. Fursuameikle at it n
cumphiined and humbly meant to us by our
trosiy tmd neH-bel'iveil counsellor sir Thomai
lIu)>B of Craighall knight tuuouel, our idro-
of Buckie bid beinenitngnfiiiiliemnrderofthe
carl of Murmy, and whs appninted therefore as
a aure man. When tlie jury hud withdrawn,
be addressed them unp^pecledly in the nio^t
pBiheiic terms; and conjured ihem to reflect
that il)e life of an innoci'tit nobleman was at
■lake; wbuse blood would lie heavy on their
.tduls tn-the last hour uf tlieir lites. "While ifae
tears streamed dnwn his ageJ cheeks, he pro-
tested that bii hands had otice been, imbrued
in blooil, for which he had procured a pardon
from hit sovereign ; but thnt it had cost bim
tnan^ sorrowful days and nights, to obtain a
remmioa to his conscience from heaven. The
jury was moved with tliis imprcisite addrew
but Trnquair, their foreman, resnihed the nrgu-
menl, that it belnuEed to the court to deter-
mine whether the Taw was severe, or iha peli'
tion seditious ; whether the prisnnrr had con'
cealed it was all that remained for them to de
cide. After a long altercation, the jury wert
■quallj divided ; and in con^e^juence of ihe li
sal suffrage of Traquair their foretnaii, Tlalme
rino was conticted of hniiii^ heard and con-
cealed a sedi'ioun pctilioii, and of linving for-
borna to revenl clie autlio/. Sentence of death
' wasimmed^ntely pronounced; but his execu-
tion, to the ureal umbrace of the prelaten, wat
wsperided during the pleasure of the kioft. —
During the whole trial the people discovered
extreme agiuition. Tliey nssembled daily, in
opposition to the efforts of their magittrates, in
tumultuous crowds ; they prayed nloiid, and in
the streets, for the preMrvntion of Bnlmerino ;
uplnuded the eienions of his friends, and
. inowered imprecaiions an the Iieads of his ad-
icrtaties. Their rage procetded to the most
desperate designs. Many consult aii ins were
secretly held ; and it was determined to burst
open tile prison for his relense; or, If that jjc-
tempt should miscarry, to reveuge his denih on
his judges and tlie eight jurors by whom he had
been convicted. Some hHd undertaken to
bum tlieir bouses ; others to perpetrate the
hen I'raquair, apprised of hisovn
duniier, repaired to. court, and represented ibat
the execulinn uf llie sentitice was impuUtic
and unudvisahle, however justly the pnwner
bad forfeited his life. After a long and severe
imprisonment, a warrant was procured Tor his
cnlni^ement ; but a pardon vias dispensed with
a slow and reluctant band. The merit of the
pnrdon was variously ascribed to the interces-
sion of Laud, or to the Imtnane and mercifal
disposition of Charles, who was averje I'lom
bloodshed raibcr llian ftom revenge; and whn
hesitated to execute an innocent nobleuina
Bf^ninst whom he was incensed, 4hou^ pre-
venteil by no scruple from accjuiring on onjua
and absolute dommion over his life. — This ini-
quitous prosacution vras ruinous m its conse-
quences to the king's interest in Scotfand. The
people had Ion; felt that the administmlioa of
justice WHS pnrtial and corrupt ; but the nobi-
lity now discovered that ttiere was no protec-
tion fnr theniselves, ftpiB the resentment nftbe
prelates and the power of the crown. Wh«t-
ei'er secret cau'e of offence enioled i n speech
or a petition, an atpression of discontent or
grievance casually heard, and concealed from
motives of compassiiin or honour, might tiiinish
a pretext t'lr their own destruction. The leni-
ty of their sover«gn was no protection ; and
Bahnerino, whose real crime was his coudoet
in parliament, justly considered the remi^ion
of hii senicuce as no redrws i>f the injury
which be had sustained. His danger mnda a
deep impression on ilie minds of his peeis-
Under an inhluated, or despotical monarch,
whenever the laws were perverted for tbor
ruin, their order had found no resource but in
a confederacy agamst the crown ; and to tto
measure their thoughts were alr^y directed
by the frequent e:iample of their ancestors; by
the sense of their danger iodividualiy, and of
their strenRth when united; and above all, by
the inordinate and daily usurpations of the as-
piriiif prelates." 3 LuB^sScQtlaiKt, 107.
STATE TRIALS, IOCdakles I. I63k-/oro Z.iW.
597]
cue for our iot«r«it upnit Jolm lord of B^lme-
rlno, tbnt where .albeit bir the coinioon li
tiiso by Che laws and icu of parliumeiit '
kiogdam, and (pecialljr bj tbat act nod !
ef purliaineiil made b}' our uinqLile (i. c, lale}
deamt fattier kin^ James 6, uf luppy Bud
bleawd meraory^Hr. 10, chap. 10, it ii tmtiiie
and ordaiiied, Tiiatiall our subj eel e continue
ibetntelres in quietness, and duiifuh obedience
to us and our royal autboriiy, and tbnt nor
of them presume or lake upon band publicly I
disclaim, or privately to apeak or wriie an
purpose of repronch or ulttncler of our persoi
estnte, or government j or to deprave our lav
and acts of parliament, or nniconjtruct oi
proceedings, whereby aiiy roisliking nui; be
moved betwiit us and our nobility and loving
tutgecti in lime coming, under ihe pain o(,
death; certirving tbem tliatdoes iu tlie cou-
trair, tbey shall be repute as sediiious and
tiicked instruments, enemies to u) and the
commonweal of ibis our renlm; anil the said
pain of death sb^ b^ execute upon tbem with
all rigour, in example of others. Like as by
theSO^thnct ofihe 14ih parlincneut of our
said uoiqbile dearest futber, in the month of
June, 1694, ibe fu/mer act of parliament, vitli
divers others, Rgniiist leasing- makers, and au-
ihois oftlamiers and calumuiei, is ratified aud
•pproven, and ordained to be published of new
again, and to be pi)t to oecuti^m in all time
coming; with this addition, Tbat wliosoei'cr
bears ibe said leasing calumnies, or scandalous
speeches, <>r writs lo be made, and ajiprebends
Dot the Butiiort theriof. If it be in his power,
or rcveali not the same to us, or to any of our
CFy-conncil, or li> our iherilT, steward, or
llie of our ilierilfdom,sle*artry nr b:iilliary,
Uewardi in reEnlity or riiyalty, or lo the pro-
vost, or Boe ofthe bHlUies within our burrows,
by whom the samen may come to our know-
ledge, or to the knoivlcd^e ol our privy-council ;
thereby the saids leasing- makers nad aatbora
of scaDdilous speeches, m*y be called, tiyed,
and punished, according lo the said ncti; (he
bearer and not rrvealer, and nut npprrhender,
(if it be iu bis power) and cuncenler and Dot
retealer of the *aids leasiog-makers, and au-
iborsofthesaidsBcandalousspeecbrsand wriis,
shall incur the bke pain and punishment as
the principal offender, as in our saids acts of
parliament at length is conteinrd. Notwitli-
staodiue qhereof, it having come lately lo our
koowledge,in the month of March last by-past,
that there was a most scandalous, reproachful,
odious and seditious Libel, found in the hands
of Due Mr. John Dunmure, notary in Dundee,
and divuljted and dispersed in the hands of
■ererai of our sulijects : wbiik tcandak>us,
oilioDs, infamous, and seditious Libel, did nut
only s^ilion^r, reproachfully, and outrageously
lax our Mcred person in our beliavjnnr at par-
liament ; but also contains many points and
puniotes of false calmunies, public icandDls
and lepruacliea n^inst us, our estate and go-
Temmeut, depraving our laws and acts of par-
lianteni, sod HUKOiMtruiajg our juit and glo-
[501
I'ions proceedings iu our first pari lament, hold en
by US in persun.m tlie month ofJuiie of before,
as dolh inHQifettly appear in Ibe kail lenour
of the saids mfumous Libel; and piirticularly
lnih*paTticnlar|>»ss«Ke5 hereof after foihmiug;
insiiolur ns albeil by tlie law of G.hI and laws
of all nations, the person of the aupieme and
soverei^'n prince i* and ought Co be sacred aud
inrioUblc, aud lie ought to be reverenced, ho*
noured, and feared, us Gud's lieutenant on
earth; and that all suhjecis are hoiwd and
tyed in conscience to content thcnudves in
humble submission to obey and reverence the
person, laws, and r.uthoray of their supreme
sovereign ; jet tlie said unhappy and infttoous.
libel, in the first entry llxreof, brsins with an
ouimgeons uphmidiug and t.ixing of our sove-
reign lurd's in ijesty of a point of injustice or
iniliscretiiin in our l.ehatiour at parliament,
for putting of Notes (as the saids infamous
libel nile'ilges) upon the names of a nun^ier of
our subjects, who did vote contrair to the acts
of our church giivEriiment, past in parliament.
Whi k is am; fearful thing in nuesuhiecc to piy
inio the gesture of his sovereign in Ins supreme
court: end upon a gesture, without speech, lo
infer a grnunil of exprobation and reproach to
ibe sovet('ii>n prince-. Next, tbp SHid iufamoui
Lihel reproaches us for refusing to rec^ve
ftoui some of our subjects their reasons for
djs-a»seuiitig fr<iii) tlie said acts, before their
public bearing in parliament : nliilk b a point
no ways compatible with the humble obedience
of agood. quiet, and peaceable aubject; but
carries with it the signal and taken ofdiscon-
teiitmeni, and rubs upon our sacred person and
|iroccediii"s matter of reproach and scandnl,
tending, if it were pOiMlile, to diminish the
glorious opinion and estimaiion of our royal
person, equity, and ju^-tice, in the beans of
our sulijects. Thirdly, tlie malicious hfari of
the peooer, not coiiient with the Srsi aspenion
laid upnn us Ibr putUng notes ujioii these who
dis-assenled, does itigeniinat the satnen in an«
most bitter invecliie and viperous style, in
aflimiiuu ihat such a thing was never of befbra
censured by a prince of si much justice as our
sacred majesty : whilk in eiFect is lo reproach
us of manifest injnstir^, for doing ofihat, llw
like rtheroi'f was never done by a just prince.
And llie libeller, not content with these re-
t roaches, most villanously and de spitefully
elcht and vuniiled fourth a^ainsi our sncred
peisiin, prucceds to a most fearful and dan-
gerous undermining of bur lionuur, credit, and
grpntest happiness, in atlirining ihat there is
nnw a grnenU fear of some innovalian intended
in e'seniiol |JoiAts of religion : allieit (blessed
be God) it be certainty known to all our giiod
subjects, that we are,, and in all our actings
bate showeti nuisclvesio be a most devote and
religinus prince, bating and ablioning iu heart
and nfiection all papistical superstition and
idalstry. And the libeller, (out ofn iteveii>h
humour) not roDtent lO restrain bis pen within
thelimiuof this our kingdom of Scotland, at
if it were too little for tlw tnnipasi of tui cu-
399] STATE TRIALS, IOChaiii.es I. 163 t.—ne Trial <f Lord
liout and fiirioiis brain, he enter* to pry iata
ir tslnte of England, and nsiures tliat there
m
it reports of alluiirani:e of rejiriniing of books
(if Popery and Annininnistn in Eiiglnnd, and of
tJie re^toiiit of noBwera made to iliem; and
then returningtoScotlanil, most fhlsvafiinna,) hat
Amiiiii:inl9>i> is preached tlici'eHitfiout censure.
Ai'ter ih.at, he goes to the astnici of the pariia-
nieiil, unit at!irms moat fatsl^ atid calumniriusly,
that dtKiTs pnpist* were nduiiited to putliaroeit,
and upuii tiie articUs, who by ihelai* of the
reii[iu cnii be no ineiiiher of an; judicatni^.
Albeit it. he constuut and iiollour, ihat noii«
6f these who were admitled to pnrliameiit aird
upon tlie articles, was professed paplsis, as
will appear by the roll of (he names of these
- fthowere upon tlie ucticlei. And frfriler, the
unhappy ptnner of tllat cursed libel proceeding
to ane higher poini of taxing md misconstruct'
ing of our proceedings, he attinus that the griev-
ances alloneil to be proponed in Cnnventton in
anno 16^5, were alti^ther shgbted in this our
first parliament: which is a mnnifestlyeand un-
truth, there being notbine concernini; the public
moved at parliament, which was not either de-
ternOinedbyourestfltesjOrrffliiitted to our coun-
cil. And thereafter it is na fulsly aflirmed,
that the meetings of the gentry, which were
Kppointed for representing the gnerances of ibe
country in the matter of Coin and increase of
theft, were inierrupied in our uaine ; which is
B manifest Ije and calumny. Like as tbcre-
aftcf it is most scandatousl j seditiously nAinDed,
that we denied liberty to our nobility to meet
and conveen with the lords of tlie articles,
against the constitution of a free parliament
under such a just and lawful prince -. albeit it
be u'lttourly knowti, that our nobihly did enjoy
■It the privileges of a free estate, which pei^
taincd )o them and their predecessors. And
•icklike thereafter it is amrmed ienorontly,
foolishly, and falsely, That against tbe custom
of this our kingdom, tbe bjslraps did chuse the
articles of (he nobility; albeit before (he par-
liament in anno 1000, the nobility did ever
chuse the articles themselves; Khich is notori-
ously fol-e, and conttair to the fundamental
laws mid practices of all preceding parlia-
ments, whereby it is roiistitute, that ever the
clergy did chuse (he articles of the Bobility.
And thereafter he affirms. That the bishops
did chose such of the nobility on (he articles,
as either were popishly affected, or had small
' knowledge of the estate and laws-of this our
country: which is an impudent malicious CB-
Inmnyand falsl.ood ; these who were chosen
on the articles (as will appear by their nnmei)
being of tbe most nntient of the nobirity, and
most eipert in the laws and customs of (his oar
kinf-dom. Thereafter il>e cursed and unhappy
lihelli-r returns to his nippi'ig and checking
style ; and most presumptu. usiy challenges our
■ tncred self upon our speeches in parliament,
und opon our proclamations rftnde upon our re-
vocatioits ; which was iniendcd for ao^rnta-
tiun i)f our patrimony, and fir disburdening of
nar snbjecis of taxation ; and that yet ne*er-
thelesi huge ahd great taxations <*en iaiiotiS,
against ttie coDnsel given by our unii|htle
deare&t lather of btested meiiiory, in hik Basili-
con Doron, and against the practice of oat
dearest predecessor ting James I. who r«Bitied
to his tuljecta B great part of tlie taiiti»il
granted for his ransont : wbich'is b ptitrt and
mis(^ievou9 exprobation to our sacred person,
who out of tbe love and tcttder B&clion which
we hear to thtsoor antient native ktagdom and
country, voucbsaled that grace and favour to
visit it in our royal persun, withoiit sparing of
cost and charges' for onr juuraey, and otbef
necis-nries belon'.'in^ to our coronation ; whic8
is well known far to exceed the taxations volun-
tarily olfered to US by our estates, in-teslimony
of their bumble and thankful grititudc for so
great u blessing as the personal presence of nl
(heir sacred lonl and sorerMgn, widiin tins oat
native soil alid antient kingdiiin. And ai ve
did never enjoin nor urgfe any taxation, ro tbt
sanle being voluiitarily and humbly oAered i«
us by our loving and feithful subjects, as (lie
mite of their humble a Station, far fiiihinand
beneath the respect of so glorious abeoeli', yet
we vrere pleased out of our love t" accept it
grnciously. And yet this so gracinut iccept-
ance cannot pas; the pen of this unhappy li-
beller, but most he castpii up (i, t. rtihcxti
upon) with a fulse and despiteful exprobalioa>
as done against promise, proclamation, and
the practice of king James 1. which is Widj
and villainoasly atbrmed. And when (be in-
tan(ou! libeller has spent his n ti happy lireatt
and pen in reviling and ntaledicting tW glorioul
name of us, liis gracious sovereign, in our per-
son and proceedings, he thereafter challenge U>
for applying our former taxations to a nront
"" " " - -'- - -imen upiin parlies and
wants, OUT subjects are not obliged to supply.
And with this besides, by the way, he apbrnid)
our servants and cvunsnlors for inalversatinn,
in the guiding and impluying thereof: A ad is
so peart and frnpiident in his devilish style, diat
be spares not the nntne of our ever-gtorions
deiirest father king James of blessed metMHj ;
but most falsly casts up (i, e. mentions) a pro-
mise nllcdged to be made by his majesty or nS
commissioner, in the parliament holden in anna
1681, for discontinumg of the eitraordinSrt
taxation in all time (o come. And then in iM
end, as a vcnomOus wasp, be cloats ♦'i(h **
impudent reproach towards ns, in (bat whici
is most commendable in a sovereign prmce, bj
taxing uB in onr beneficence and lilJeralily to
the lords of our session, in providing bonour*-
ble maintenance to (hem, and in bestowing
pensions upon our dfficers ; and leartfs ftothini
within this our lingdom, which is
within the scourge of his
pen and (ongue : So that it is _
dercd and admired, that any person, li'ii^
under Such a gracions, piou-., and jdst frince,
-" :ld degenrrate into so monstnAisa — —— >
if his lievilMi and maltciooi
of our eovemment, as to dare and presiime npofi
■ ■ (^ e. mneh m^ » speak and
to think, IM be (
661]
SiA'tE.'tS.lA'lS, roCBA*LEsI. I6!it.~jbr a tiM.
[coi
wriie Mdh (fBvilub, repraacbtii), wandalcms,
and srditiaui tlioughu, which infest tlie very
sii', and can have liu other end but the breeding
in ibc heHrts oF our gond mid loving subject!;, a
reariul jealuuaj and dislike, and in the end con-
fniipt afouV iuit gavemmeni. And albeit all
our gbocf subjects be bound in ci>n<cicTice, as
also d; the law) 6( thii uur kingdom, to crush
this Cockatrice in the egg, Hiid to abhor il as a
pestileniioua clont; jet tlie snid devilish It&el
was found in ihe hands of the snid Mr. .lohii
Dunmure, niitarj in Dundee, and wa* divulged
and dispersed amoni^jt our subjects about the
Ibreiaid month of Aliirch Imi past ; nhich com-
ing to our noticG and knowltdge. we then gnve
power forocamining of the said Mr. John Di
I the SE
s hands : who
deponed. That he bad the sameii friiin the
said John loitl of Balnierino. fVhicli John
lord Baliherino ^•tiag, also exnmined, be granted
tlie *amen to be of verity, and tlierenith af-
firme<l, that he had the said libel from one Mr.
William llaig, wboml he thought also to be the
penner and author thereof. Of the which
scandalous libel, l)te said John lord Bnlmeriuo
hinis«lf wias, and i). author, deviser, consulter,
adviser, airt and part (i. e. contriver and part-
ner) in the penning, writing, and drawing up
ihereofi at the Irast is %a\.\ly of the hearing
thereof, find of the concealing and not revealing
of the said Mr. William Haig, whom he affirms
to have been author of the same ; and also is
most guilt^ of the not upprehendin^otLhesaid
Mr, William Haig, it beiiis in the snid John
lord Batnuerino hispoi^ertohaveukeiisnd ap-
prehended the said Mr. William ; and, lastly,
IS guilty and cnlpable of (he divulging and dis-
oersing of the said scandalous and seditious
libel Binon^t our subject), in so far as the said
John lord Balmerinu knevr of the penuiite of
the snid scandnloUs Ifhel tiy the said Mr. Wil-
liam llnig, and advised and gnre his opinion
nnent (i. e, about) the ninking of the somen ;
and in token thereof, interlined A part of the
laid infainoas Libel in divers parts thereof
With his own hand, which is yet eitant to
lie seen b)' ocular inspection : and which inter-
liniAe the said John lord Balmerino has con-
fctseid to be his own band-*riling. Likeas im-
tnediaiely after rhe forming of the said most infa-
mous libel, the laid John lord Balmerino receiv-
W the same from the said Mr. WiHiam Haig,
and delivered it (o the earl ofRothe), nf pui^
JMwe to hktt the sainen presented to us, and
fcaosed Mr. Itohert Dalgleish his servant copy
the said infamous libel ; iibich copy lie deliver-
ed to the laid Mr. John Duhmure, m whose
hands the somen was found, by occasiim fthere-
bftho said infiiifious libel was divulged aiid dit-
MMed ainbngst olit Subjects, and openly rend
Bbftnpbsedtblhdtvlet*; I<i the prejudice and
tferogaitoti of (Ai)' tacred Md glorious iiaine, hy
Ihfe ihlWnods, tIcafatlatbUs, and seditious pas-
inges and artitlts contained thereiti. Likeas
tfte i&'A tdfd of BiliAfe'rlhO inpc and detained
the Kafd infflmotis llh^ in his hand cutitinually,
frmt thb time of IMs ttostng of the paifiamcnt
about the end of JuRe, 1033, UTltll tb« Oth of
June 16S4, iast past, at which Lhne lie was
ebntlenned for the saitte, and did e»lriliit the
said infamous libel, in preseitce of ttle lords ap*
pointed by us'fbr his examination. LikcM thp
wid John lord Bnlmcrbo having Conferred »i(4i
the said Mr. John Dunmiire, after his first e:i(ami>
nntion, which was in March 1694, and avoMing
that which lie had done concerning the drfivier-
ins of the said iufHimius libel t'l ihe said Mt,
John Dnnimire, and tfispersing thereof, desireil
the said Mr. John D'anmure to go and tell tha
earl of Traquair, one of the esHRimatora, that
belter men than ihe said John Inrd Balmfr
rino- himself would set their fhcA to (i. e.
justify) the said libel, at the leirst knew df
the samen. And alteit the said Jobn lord
Balmerino he a nublenlan of good leirrninj
Md uiidersiiluding, aAd so presuitiett to hart
the knowIed|;e ofihe In-ws nnd BCtsofparlia-
nieui of this our kingdom, was boilixf in M
duty, after receiving of the said inlkmous libel
from the said Mr. William Haig, and reading
thereof (which in tlie hail strain and tenour <rt
the sanien was of (he naiur« of a scandabut
and seditious libel, proNibitrd by Uur acts 6f
parliament) b» he would have eschewed tlU
danger of our \a.'tr» and punishmeAt therein cart-
tarned, as ituthor thereof, to have ^e»ea^ed th*
SBmt to us, or to sottie of our privy conned ;
And alsu Co bnve apprehended the said Mr.
William Haig, whom he affirms himself to haV«
been the author and penner thrreof : yet tlW
said lord Balmerlni did no ways apprehend thtf
said Mr. William Haig, nor yet reveal the said
scandnloiis libel, it beiu? in his power to have
appreheuded the said far. Willi^im Haig, wh<}
was but a single person, and the sail) lord BaU
mcriiio being a nobleman of power and credit :
Bnt the snid lord, notwithstanding thereof, did
still hauntnnd converse with the saidMr.Wiltinm
Haig, and did keep, detain and retain the said in-
famous libel in hit hands. Likeas the said lord
Balmerino, after he was cited to Cuinpearbe-
fttre the lords appointed fnr his eiamination,
which was upon ihe Tth of .lunc last ; he eorti-
pearing before the saids lordi etaminotors upon
the said Tth of June, being Sntiifdaj, he craved
enily ufche said; lords to have his examination
anent (i. t. about) his knowledge of the authon
of the said infamoos Libel, tl> be cnntiiiued (i. e.
delayed) till Monday next chereaf^r, which «ral
the 9th of .hine J which being granted to him
by the saids lords, ami he ther^opon being de»
raitted from them upon the srfidftn of June, be>
ing Satutii»y about IS o'clock, he immediatdy
thereafter met ivith the said Mr. William Haig,
and shewed (o him the warrant of the cilatitm.
At which time the said lord of Balmfirino bar*
ing riie said Mr. William Haig in his own
house, and so in his -power, did not apprehend
him, whoin he knew anS affirmtd to be the ao-
tbomfthesaid scandalous libel: butbyhisshew^
ing to him ol his said warrant df dtattoTi, whrclk
bore the said lord BcJmeritlo to have been con-
vened before tlie saids lords e»iiiinatars, to
make answer aneni the Hiid ledMon libH, foiind
COS] STATETOIAI^, IOChahlesL \GSi.— The 7\-ial<fLifrdBtdmeruo, [GM
ID the hMub of the aaid Mr. John Dunaiure, he
thereby (are occuion to tlte said Mr. VViltiun
Haig loescnpeout of the country, nnit become
fugitive. Likeas ihe laid Mr. William Uaig,
immediately after Lhe tight of thi aoid warrant
sheffD to lum upon the laid 7lh of June, being
Snturdsy, eacaped aod fled out of the country,
Bud became fugitive, and remains out of tlie
comitrjf contiiuiaily aiiice syjie, (i. f. iince that
ume.) Xikeis tbe laid John lord Bahnerino
being inrarcerat (i. e. tmpriioiiGd) witbin the
cd&tle of Ediuburgli, After his firsi and tocond
exataiDUion, as author, airt, )ian, or accessory
of tbe saiil infamoui libel, received several let-
ters from the suid Mr. William Kaig forth (i. e.
out) of tlieLon Comitries, and other placet to
nhich be escaped ; which letten the MJd Jobn
lord Balmenno kept by him, without acquaint'
iug (lie saids lords examimtora, until the time
be nas chalieiigod. In the which lettert and in
other letters seit by the said Mr. William, and
■titercepled by the lords, it is affirmed and
nvowed by (he said Mr. Williun, that he hud
the approbntioa and allowance of llie said John
lord fiolincriuo to tlie making and penning
thereof. By the wliich particulitr deeds, cir-
cumstances, and othvr vehement presumptiDna
pavticularly above eipreued, it is clearly
evinced, tliat tbasaid Juliu lord Balmenno wai
author, deviier, ouiMiter (i. r. publisher) ad-
viser, airt and part of tlie peniiine and forming
of the utid iufamous libel, at ibe lenst con-
cealer and not revealer thereof; and is also
culpable of.the not apprehending of ilie said
Idr. Wilham llnig, wham he affirmed to be
the author of the said Itifamaus hhel. As alto
of the dispersing and divulging of the said infa-
mous libel, in manner particularly above-declar-
ed i incurring thereby the pain nnd punishment
of death, ipecilied aod contained in our saids
acii of parimment, nhich ought and ihould be
inflictEU upon him with all ngour, in examine
to others to ntlempi the like. Our wilt is bere-
forC) and w^ charge you straitly and command,
that iacontineat thir (these) our letters seen,
}(e pass, and in our name and authority, law-
fully suuimon, warn, and charge Ihe said Jolu
lord Balnierino presently in ward, within the
cattle of Edinburgh, lo compear before our jus-
tice and bis depuU wiihii) tlte Tolboatb of
£dinbu[gli, tbe 3rd day of Decembsr next to
coiiie, in tbebour of cause (i.e. when tlie court
is met) aifd there to underly our laws for the
crimes above-written: To ihe effect that upon
hit trial and conTictiui, as culpable thereof,
jusiice may lie ministered upon him cooform to
the laws of ihe realm ; and that ye summon an
Bssiie, (jury) not exceeding the number of 45
persons, whose name* ye shall receive in n roll
subscribed b^ our advocate, ilk (each) person
under (he pain of 300 marks, according co jus-
lice. Given under our siguet at Edinburgh
the 11th day of November, aitd of our reign
tbe lOthyear, 1634.*'
Fallows the Execution of the said Summons.
- Upon the 14th day of November IQ3), t
Jumes Currie, Ormimd purwiant and one of
, the sheriSs of thai part within conMitute, past
at command of thir (iliese) our sovereign lord's
letters tvidiin written, and by virtue thereof
charged (he within written John lord Balmerino
personally apprelwnded in tlie caatlc of Edin-
burgh, and delivered to him a just and authentic
copy of these his majcstv's said le((ers, to com-
pear before his majestys justice and his depula
In the Tolboatb ol Edinbuigh tbe Srd day of-
Dec. next to comr, in <he hour of cause, nod
there to underlie bis inajesiy's kws for the
crimes williin wiiilcn; to the ellect, that upon
his trial and conviction ai culpable thereof,
justice may be administered upon him, coo-
rorm to the laws of this realm : And iliis I diil
atler the forni and tenor of our sovereign lord's
letters in all points, before Ihese witnesses. Air.
Arcbibuld Geddcs, constable of tbe said otstle
of Ediuliurgh, nnd John Malcome, lieraltl.
And for the further verification of this my exe-
cution subso'ibed with my band, mv sUmp is Af-
fixed. Sic. tub. Ja, Currie, Orinona punevani."
Thereafter my Lord Advocate produced vrith.
the Sutnowns above- "riKen, the copy of tlie
iDfainous Ubel wliicli was found in tlie'handa
of Mr. John Dunmure, notary in Dundee;
liearing in the end thereof, that the Sliid Mr-
John being examined tlirreupon, be by bU De>
pnsition has granted it to be the simcn Ijbel
ivhichwns in bis hands: Of tlie which copy th«
tenor follows:
To theKing's most excellent majesty; tttebimt-
ble Supplicadon of a great nuinbernf the
Nobility andotberCommissioneri ill cite lute
Parliament,
" Humbly sliexetb; That the Notes which '
your majesty put upon the numes of a number
of your Supplicants in voting about these act^
which 'bd imply a secret powerlo inuovate the
order and govemment long continued in (be
Relbnned Church of Scotland; nnd your ma-
jesty's refusing vi receive from some uf your
supphcants their reaAonsfordisieiiting from the
vua acts, before your ni^esty, and in your beai^
ing in parliament, to breed u fear of our be-
coming obnoxious unto your m^ijetty's didike,
if your hiobnets should still remain unacquaint-
ed witli the reasons of our Opinions delivered
concerning the said acts: Seeing yout suppli-
cants are confident, that your majesty vouch-
safing to tike notice of tbe saids reasoiis, would
be pleased (o acliDOwledge, thul nu h ant of
affection to your inajeisty's service, but a care-
ful endeavour to conserve unta your miyeslj
the hearty affections of a great many of your
good subjects that are tender in tlieae poiuu of
novation, covertly thrust upon this church, did
induce our wishes and voices to appear in op-
position (o the said acts; and that a predomi-
nant desire in us to have all your royal designs
here to prosper without interruption, 'did abso-
lutely coounaud IK to forbear any reasons that
eiu]
^ATETIUALS, 10 Cham.es I. I0it,—for a LOtl
idoe
could hire lieen pmpounded agiiinit nuny of
tbe conclusions In Ihe late parliament.
" We dotiieiefore humbljr beseech jour ma-
jestj grsclou^y to poncler tbe coDsiderationi
after-iTrittcii, io shnll xe be encouraged (na in
Hoty bound) to contftiue our liumble prnyen
tiic' jour majtsty's Iniif; and Imppy reign.
" Firtt, Me humbly beieech your majesly to
coQiider, Tliat though these acts lu they are
conceived, and mny concern yoor majesty's pre-
rogaiivei, and the libenies uf the chiirch, had
□ever been moved or concluded (as they ar^),
four majesiy nould liave iulTered no prt-judire
in your benefil, huiiottr, nor power : That your
sapplu-atits are much more Iree Trnm all sus-
picion of private eiidi in dit-Dsaeniing, than Ihe
coDtrivets of the said acts, in offerinK them to
the hazard of contradict ion, or eoticiimg an as-
lent thereto: That in deliberation about mat-
ters of importance, either in councib or parlia-
ments, opinions do oiten difler; and diey that
bare been of contmry mind to a resolution
corned by ilie plurality of votes, hnve iieter
hitherto been censured by a prince of so much
jmiicc and goodness as your majesty.
" We du also most humhly beseech yournia-
jesty to brlieve, that nil jpur Supplicnnls do,
in most submissive manner, ackuooledge your
-royal uretwaiive in ni ample manner as is con-
taineil in the Article 1506, made thercnnetit
(ihereabSm); and withat do consider, that tbe
long eipciieiice and incomparable knonrledge
jiHir roY^t father had in matiers of government,
as well in church as in cummon»eaUh, is the
-»*ry cause erprKsed in the act 1609, for giving
power 10 his majeaty to prescribe appnrel <o
kirk-meo, with their own consent. And since
ia all the time of his life and goternment fur
(he space of 16 years tbereafier, he did fcirbonr
lo aiake any change upon their former habits;
■e are bold to presume, that in his great »iS'
dotn heihoi-ghtlil, that the apparel used in time
of dirine service ever since the reformation of
rcligiou till his death, and tO' this day, should
be conlinued, a^ decent in the church, and
moil agreeable to the minds of his good sub-
jects in this nation. We do also beseech yoer
majeily to consider. That under tbe act in-
litied, < A RatiScstion of the Liberty of the
■ Churdi,' the acts ratifying tbe assembly of
Perth in psriiament 1631, «ere declared to be
comprehended : That most part uf us beine
tben ia parliament, did oppose the sam
experience hath shewed hon much thi
cies of Perth have troubled the peace of this
church, and occasioned innumerable evils and
distractions in it : That there is now a general
fear of some novations intended in essential
' poicts of religion ; and that this apprehension
M much incivased by the reports of allowance
> ^Ten in England for printing books of Popery
■nd Arminianism, and tlie restraint of ansHeri
made U> them ; and by preaching Arminianism
io thfs country without censure: by the admit
■ion made pf divers papists to tbe parliament
and upon the articles, whn by the laws of this
lealmcao be no members of any judicatory '~
it : That the minds of most of yonr good people
bKngSn tliis perplexity, your supplicants have
^reot reason to suspect a snare in the lubde
junction of the act 1609, concerning apparel,
'ith that of 1606, anent your Hoyal Prerogslive;
hicli by a Sophistical artifice should oblige u*
eitlier to vote uiidutifully in tbe sacred point of
Prerogatite,or micontcionably in cbutch nova-
" , [A".] which blessed knig Jnmes would
r h:tTe confounded, as ii|ipeured evidently i»
the parliament 1017, buuoured with his graci*
9us presence; where his majesty, by the bishop*
instigation, tried, urged, and jmst m Articles a
ratificntian of his royal prerogative enacted in
the parliament 16Q6, nilb A&ition of an A^
(icU authorising nil things that thereafter sboold
be determined in ecclesiastic affiiirs by hia sn-^
cred majesty, with the consent of a competent
— iberof the clei^, to have the strength and
er of taw. When this Act came to ba
heard in open parliament, his majesty gave
order to read only tbe Kubrick of the Act;
which being done, he was then pleased in his
fatherly compassion over the lender aifection*
of his loyal subjects (well known to his majesty,
Ds Huctuatintf betwiit love and ^r) publicly
from his own mouth to declare his princely love
and pleasure, for reasons known to himself, to
have tlint Act suppressed, though passed in the
Articles : because Lis Royal- Prerogative being
ol'ilseir inviolable, was already established sulb-
ciently ; and in the depth of his wisdom, he
would abaolulely prefertiie peace of the Church
to the appetite ot churcb-men. And since we
are fully persuaded of your majesty's unfeigned
aSecliun to ihe true religion, and so do presume
that none of these things lawfully rejected at
the RelbrmBiioii [fB — C — 1 thereof in this
kingdom should be introduced again without
consent of our clergy InwI^iDy assembled; and
tearin|£ that a foicible aud culsnrable intruding
thereof, would dimiiiish in the kearit of many
of your loyal subjects, that affection which ia
founded on their opinion, of your majesty's
goodness and wisdom.
" Wcdo thtrelbre dis-aisent from the foresaid
Acts, 3S importing a «enviti<de upon this church
unpractised before, and giving ground for in*
iroriiiction of other new indefinite devices.
" We do further otfer unto your nmjesty's con-
sideration, that albeit oarjust and heavy Griev-
ances allowed of .in the late Convention of
Estates J695, and 1S30, to haie been repre-
seiited to your majesty, in hope* of refreshment
to tbe country's luBenngt, have been ahi^tber
slighted in this your fint parliament; albeit
your m^esty denying your nobility their fre«'
dom by authority to meet will] the Lords of
the Article^ may seen agaiaat the coiutitatioa
of ■ free parliamcDt (under such a just and
your ancestors), which before the perUamaat
* Tbe Pannel's incerlioiigs you will find in .
the other copy hereof.
t Interlined [B of Reltpon C] in tbe otlter
^py by the PanOBl. .
C07] STATE TftlALS, 10 Cuahles I. t^S-k— TV Trud qf Lord ^alinmno, [GUS
h; atca's ambitian nfter Utc public placvi of
judiciiMrje*,"!! ch none htv* iicrelolMe refused
by mMin of ibe iinall ten due Ui ibetii ; with-
out coiitr&dictjnjt llie eirrptluni of ynur nOicer*
pensions, or aliedgia^ llicir Fets 'O be m t<i^
cieDttbrmaincjimrig Uia dignii; of tlieir places
now, at iliey *ere bt-foie yuur majeiij's luiUer
Micceeded tp the cnmu of EuKlaud. And all
ttu3 bive we 'lone implicitly, uiity to icstity our
ipgcDuous affecrion [o >our lUiijesty. and our
obsfi^ious resolutions lu give you lull content
iQ every ibin^, iliiK inaLcB not a breach in our
Religiuii and L»ws, ot occfisi..ni-tli not offeuce
(0 the wealier son in the way of Cod's Wor^
ship iicre estalditbed; and albeit we were not
BcqUHinted nitli any of the stuttiles before the
public voting of ibcin in paibanienL Tli««-
fcire we are conGdeiit thai your innjesiy findinf
socli a liarinony in our aSeclions li) your set-
vice in pre^n'iiig our Keliginn nnd Lbettiesi
wilt be unwilling, upon any suggestion' of such
aa are (or hope to be) sharers of our voluntar/-
c»ntribuiians. to ininiduce upon the doctrine
or discipline of ihi* your MiitJier<;hiircIi, any
tiling n:it cuuipatible^ivith your majety's lio-
iiour, your cood people's cunsciencea. or tbaC
hath been rejected by acts and public practice
of (bis Htformed Ch jrch.
FolJowi ihe Mid Mr. John Dunmure's DeposU
tion, written upon the end of ^e said Cop*.
Apud Ediuhurgh liv Martii IC34. coiiveeDcd
St. Aufliewj, Traquair, Bishops of Edin-
burgh, itoss, Clerk of Kegiiter.
" I Mr. John Dunmure, notary in Duitdee,
being examined in pretence of the lords of tiis
maJeGtj's secret council abiive- written, depotie
and confest, tbat this fupplicalian within writ-
ten, is all written witii iny nwn hand, and is
that which I deliverMl to Mr. Peter Hay of
Naughtoun^ about Lanibns last. And faidcr
I depone and confess, tliat thi^ is the just and
trite CLipv of the paper dcliiered to mc by
John liinf Biitmf rino, siiortty iifrcr the end of
the late parliaoient, within Ediuljurgh i aud
[hat then uiy lord of Balmtrin'i (I being with
him) Eiiid to me. Because ye. have gicea iRe
niHuy papera, I will let you see this nnd have
your judgment of it; but let it be IM uli, as
ye respect my credit. And that I keeped it
four gr Gte days, nnd copied it, and then deU-
vcred the lanie back ngiuii. I further depone,
Thatthe paper contaiued the lupplicai ion with-
in written, in the same words and sense: aod
it is not by luy lord Baltiieniio's hand, but i^
soiae uther iinnd.
Sic Subset ibitur, Joak. Dumui.ke."
Written ou the b^ck of tho said Copy, " F«r
the Kirk and CouDtry.in tlia Parliaaent,
bold to anno M09, M ali>^s elect and chose
- the XiOrds of the Articles fruui ajnunj; theui of
iheir own rank and ouotuj ; tbere haiin^ beei
tiu pttrHknteatwy bkfthL>ps from the rafonnatioi
of r^ligioii till tbeu, nor were tbiysuch as not
docaUand single out judi nolili^iiien either
[Ktpiably afibcted L|i religion, or of liitle eitpe-
rieacein our laws, as having h^l iheir hreedin){
abroad, and so nune ot Uie ablest lo be .upon
our Aiticles, but fittest only Ibr the clergy'
mjtaticat ende. Wiiercas tlie fortner practio
mm* such, B9 aeejneth most ngreeable to reasuD
aixl what every estate should do, tbat so they
' may cooiinanicate their minds with the rest
4<ur.body; since none but men very preMim
tUMU of their own knowledge, or scns^lets
iheiBMlvea, will adventure to truM their Gi
COfloeptioRsionatteiSDrM great importance as
Me.the'wmclqsioos of parliamenL Albeit tbe
bumble Hipplkations of the ministry to your
majesty and estates of parliament, delivered to
'ibe.Clerk Hesister, (and that your majesty was
in all due humility petitioned by tbetDiniitersof
tiiis kiiigdom, boib Conlonnists, and Non-con-
formists,.to give ihein a hearing) have been
luppreued : albeit the iqeeting uf the geotty,
and bBp)iiiy of ibe burrons trio, in a joint pur-
pose to have represented to your majesty oiir
iMspenknble auiierings by the Abuses of the
poiu (the Mastery uf the Aliot being a thing
merely regal) and iacrease of Theft .-md Op-
pcesuon of diveis parties, and other things
ivortby your majesty's consideration, were in
your uiajesty's name interrupted: And finally,
albeit your majesty was graciously 'plea(>ed by
your fvriner and later Speerbes in the Parlia-
ment House CO declare (answerable to your se-
veral Proclamations, bearing that tlie course
taken by your (evocation for settling the pa-
trimony uf your imperial cruwn, was, that ye
•bouM not be burdensome to yoar people), that
your majesty bad no purpose at tins time to lay
«ny burden upon tliis itatioD, according to tie
wise. counsel oi kiug Jiunrs in his Batilkoa Do-
rm, treating of tlie right Use of Subsidies: albeit
that the present condition of yuur sutyects is
■corse, and the patrimony of tlie crown greater,
than wlien king Jaoi^ 1. remitted to his people
a great port of Jlis .Taxations, granted even tor
that good kiag's ramoin ; yet have we nil as
«NejBan oonseoted ro all your majesty's de-
naads, and inoi«,.<vcn to luive tasatious mut-
«ipl)wd, witlxiut raprvHuting how tlie former
MtB'been,' M (bwe may fall to be, bestowed
wpon dsrars urtie*, whoK .icastea «nd wants
.jiour go(»d,*Bi:^«cts are. not obhged to supply;
<»iihout objeottng tbat some af tbem have been-
Esiuadieuraordioatily for Supplies of the. Pii-
ia*te,.wbiEli being ntw.by tUe mercy of God
- in a .better aondilwn, they.uiiobt have pleaded
to rcNOn to be (hencefurtn ditcontiiiued ;
Milioat leretelliiig that some. of the subsidies
are like 4o-be nwaas af juore processes, (ur
«uils)'bMaviKt ymir.majeaiy's subjects .nnd the
Treasurer, th&n matter of jirolii tu.yoarTr«a-
lary ; jaithiHit,patti^yaui> iskjeity id reiaeai-
brance of cbe imperii nenctMifiHttlMn 411 ^itnd
Mj luid Balmerioo produpe* two Warr^nds
or.lhe Lords ofties^ion, by their lordships ,d«b-
veranceof ihe.several dates undcr-wriiteD, ot"
dainin)[ llie procurators therein '(wnLained, fo
compear and defend my lord in the criminat
process above ; and ttic said lurds by their (le-
liTennce, of ^le.due (be 19th of Nov., 469:1.
«W]
ETTATE TRIAI£, IOCBahluL lOt*.-^ a UheL
[C19
TW famk iming conudered tbc deur« of the
Soppliouion, fitc %ai appuiDied ibe person*
tktMia ciMideKMDdDd oo by my lord to be )»>
mtraeuM for hia Defeocc, tii. Sir Le«i« Siaw-
Mt, Mr. Thomai Nicbolian, Walter Hay, and
Ur. J<dui IJitbW. And by llie delireniRC* on
ite end o( anolher Supplication |it«u in by
B* lord to tbe taii lorda, craving (upon loaie
•I'tbc r«rineT MdTociiti relusul) nor? adTixati,
ihey bj lliair deliverBDCB thereon, of the d«ie
th« «5tli Nov. 1Q34, appoint and ordaia Mr.
Koger Hovat, Mr. AleMndcr Pearsnoi and
Hr. Bebrn HaciiU, Advocao j asd ordaias,
itc UitaQ tfaa pTMuclioD Mtd reading of the
whiiii WamuMb, the laidlotd BalmcriiMi took
era.'
tr it WB( objected by mj Lord*! Ad-
niy Lord RtfJMtT could not «it a*
to my Ijori jDrtlcc-Gcneral m Uiit
isuae not ooly mj Lord K«f^ter
a* or the Judge* of th* paniuular
coBmwiee appointed lor Trial and EiamiiM-
OM af Ibe Pannel, liefore whom hf hu often-
tme* oonpeared aud been examined ; bnt ako
■ty Lord kegi*ttr hot ginn partial eouniel,
a*d has been upon tbe counsrl of Ibe ndriiin|<
Btid hbeltinc at the Dittfey now produced aad
laad, and Mi aMitled >a the **me at •everal
ooeaaian* ; and so by girinit Infiirmation and
Ndvice in tbu kind, hni behaiTd himielf a*
{arty to eSect, and ihetefure cannot lie Judge
■or AMcaMH- lo (be Jostke-Genernj. And
«ftar Aoawan And Repliei, the lords by their
InterlaqaitnT repel lad the lint pan of theal-
laMkaace, beanng that oty Lord ll<gi»ter can-
MM u AatHBr, becaaie he wa* a ttcmtjer Upon
the Gomnktee; aad a* to the lecond member
HMEaof, dectani (hat tbey will have my Lord
KagiMcrM auke)iiiJDdK>al Dedoration, aad
tfca* jadieialtj tharaupon, in pre*enc« of- tlie
Faand, bejbie any Aniwer be ^«en thereto;
whkk ■ooonhn^ my Lord Register doe*.
Tbe Pmmii,1B r* ipert of my Lord Register'^
OeslamiBD Jndicia], U content thai my Lord
Btpiwr reaain Anennrto the jvetice-geaeral :
.wfacimpMi ny Lord Adracat uked inatni-
IVwfcer tbe Pannal produced a Suppli-
Miian (o the Lords of privy conncilrwiih De-
ItranDoe thereapon, «t«wini( tbe Depontiont
tMde fay the «ail of Rothei, Mr. Jofm Dua~
mint, and Mr. Bobert Datglei^, from the
«i«di, to be teen by hi* procurators ; nnri their
iMdtfatpi, fay lh«T Deliverance tbereoa, dated
M. Edinbwgh, 38 Nor. 1084, the lordi retnit
m ih« joMioe tbe wwwering of d)e desire of dm
anp^icaWM. tie tab$criiiSor St. Andrcm.
A«cordingly la^ Lord Adfoeat, at tbe Ju*-
foe Ontioanoe, (t. e. by order nf conn) fjave up
W BIr. Soger Mowal, one of tlie Pannd'spra-
««ra(on, two DepoMtion* i^ Mr. John Dun-
M«T, one of Mr. Robert Dali^leish, one of the
nri of RtRhn, one of Mr. Peter Kay ; toge-
littr urUb feur aii«)te Leuars, seat by Hr.
WiHiBM H*^ to tbe PUnd, to he reprodooed
Prirfay oBil, at wbiA tki* Aej were acetyrd-
-in^ nprodiMMl..
Theivafler upon ihe loid Dccenb. 9, tbo
Dittay and infamoaa libel was read, as tpeci-
fied in tbe Dittiy.
It i* tint nlledged by Mr. Robert MacjpU,
«« the PaDnel'i proGurator, under pratewalJoa
tirhimulf andthe rest ofbia brethren, with on
apoliigy that be nor ihey al(<iivs' not (he least
Mit III' iiKwtiiiate ipeecb ogninst hit nejetly,
bot only to free the innocent, us they who are
comiaiiBded by the Lords of Sefl'ion, and take
imtruaienti apon the first Article of the Act*
latpriRted in our tovareign's first parliametlt,
aaent the surveying of the laws; does atledge
the Dituy cannot be inferred agninM the Pan-
ncl, upon the Ant act ipecielly and at Imgtb
set ilowB (therein :) because it has not bqen
tbe niind of riie legiidBtor there to inflict th«
pail) af death apon «uch repmadies as are
contained in the Dittay, and aUedged to be
cantMoed in the Supptioatibn or Petition atyied
by ibe Oitta>r ' C*l»iiuiious.' For the main
CMrse of Making that 90th aci^ pari. 10,fao1den
in Deceniber 1685, (our dread sovereign, and
hi* honoBr, being ever proposed) wm nitt only
10 ratify the grace eiten and eitrarled to th«e
noblemen, who a little betbre ^ecanM in nt
Stirling, a* may be seen by the pnriicDlar act*
of pirhanient imprinted nnent riie restering tk
those DoUlevten, with llieir followers ; bnt
much mmv to strenphen the nobility (as reason
wai, sod the lime required) ngainrt eatitain
James Stewart, wbo then hnd Aed, and wtu
the cause of their former banishment ; and
frMed by them, diat be might wrong them
again, if be had rained hia najeatv'a ear, be-
cause that they same in such a manner. And
to ttrengthea aUo tbe nobility ngHimt any
other, who shoald take in hartd the lifer, a* to
come in betwiit tbe tree and die rind ; I mean,
betwixt his most sacred maje'^ty nnd bis favonr
et moi cmnnitalei, for hia nobles are ao CHlled,
and has tbeir name* as they whn should be
ever accompanying hit most sacred person.
For th« Deeds done ' contra aliquem et comi-
' tatit vind ioamiu' lA crimen IssC majenatit,
' Lnf. quisqais, Cod. M legem Juliam maJM-
tatisj'by thetitne.
The BCnin of the Act entries also tbi«, to
wit, Repitiacbes of his mejeitT's Estnte or Go-
vCTOmeot, or depraving his laws and acts of par-
iiameat, ormisconitruing hisproceedinp : but
aasnering to the queatinn. In qtiemfinan ibonld
these Reproaches have been written, wberebjy
tiny mielitinjg may be moved betwht his ma-
jesty and his Bobility and kiving tubicM* F
Wh»re the word ' bii nobility' i* very ewpha-
tick, and tbe two Inst words eipouads tha
senen, being ewtietick' of the farmer by a
fTiKions pniiee,'teatiiying by the word ' luring'
the fcpfpiiing of tbe Kirmer slip, which bad
been more by misreportihin in veritj. Com-
pare also this Act with that <n\odii was made
during the said captaiii Janes bis grvrideirr,
alitdemore than a venr pfeeeding, pari. 8,
134, Jac. '6, in the which, as it were con-
"" I, tbe noblesnen are tonitted tS» ;
" *•> la^Mij't •onacil'Mid
2K
..GooqIc
611] iH'ATETRUU, IOCharlesL lOXl^T^k rnslit/'lortf BoJaurMO, [61f
procesdin^t, to their ptm prejudirc oho vtere I
then pui amj bj bis (f. t. CMjitnin Jnna't,
COL.n*el. and boldpu nv.ay L')r Jua detncliuiiK,
uMil litey pesriij enough ():tt eiicuungeil tt<r
tbeii own uinuLpocj) ciiiie io Bl8lirlin|c : Bml
iucoounent did procure tliM tciitli parUnineat
(n ti* b'llden. ib which » ns mule ibe raid lentil
■Gt, no moie drnji iiiierieiiing b«l«iit ibeir
reUirn and ua utting tiutibr i<a}'i of citation.
And H Jet rnoic clear by Ihc nudi, ' depran
' bii laws and Ads of FarliamcDi : '""i^g
act £i Jac. S, pari. C, *|Bimt the Apprc-
heiidera of hk nujesiy'i peraoD, ■> the act
bean ; tba literal tenM whereof might jofer a
Dittay a^aintt the drnmitten, if it were not to
deprave the laxi, if ibe mind of the legisialor
wtre MX looked niitn. So that tbii tenth act
cannot well be nnderMood as conrenienc in
infer the Ditbij, c^ecially teeinK be wai not
the HUtbot or peoner of that alledged iniainons
libel ; bot Mr. Williani Hsi(, wbo hai deaH;
taken it npon him bj bit own letter, as waa
eonstant (i. e. crideni) to the Lords nf ibe
Comniitee, and is acknowledged b ibe Dittnj
bt ibese wnidt, ' At the least gtiilt; of the
'-beariof:' wlietein the Panuer* part was
MNch wortc than Olfacn who beard it, i
ytx not nrealed thr same. A* also allbongh
that RcnKuittrance bj waj of supplication be
BOW sllcdj^ed to be tcand^ous, Mit ibea to be
prorerred lu bi) sacred mijetty, and watoQered
to be ^ven , trga the Ditta; cannot be infeircd
in this act^
And as U> the second Art libelled eipreiilj,
lac. G, pari. 14, 'Cap. 909, containing divert
Act* aoeut LeniiDl-makers; we repeat
fitrSiiid Protestation, and ta]r, If tdl sort
ioordinit Speeches (whilk let it be spoken with
all Immililj and dutiful icTerence, at
lotting injr but to she* the Pannel'!
cencjr) asaintt his mnjtsijr our dread sove-
rtign and liis coTcniineBt, even tltose which
hy ioterprttation or miscnnMruction may be
iufctred upon ■ man's ipaech (i. c contrary
(o) hi* tnind ; and not only the avtlior of
Um Mnia, but alto the hcaren, not mealers,
and not appiebeiiders, are aDderaiand
be puiiithca with death in nur law, in the
addition of that act, and w are all to be
comprehended tlierein : then we sboald make
our law to tontmit an absurdlij, « bich do mu-
Iticipa] law ought to do ; but ralLer an inlei-
Cetition ihoUd be taken out of the coromon
w and MMok, Gailui ad Longun, lib. I.
' Obwrvmtioae tncettma MrtiB,quo modsstatu-
* Conim iuterpretatio bnenda nt.' The ab-
mrditj; is, that there should be atinalitj ef
* o equality of crimes, committed in
AntLoris de Lictc Klajcal«tii Crii
11 num. 5. bt pessiiH in Jure, nl
Hhlilua ill Capnulo prima, priiim Nola ad Tt-
lun 38 lib. 9. t'eudorum de Vatsallo qtu
itra constilDtionrm Lotharii. And the opi-
nioD of the civilians it exploded I'ing lince,
tontics dignum IwrribiU flai^Uu.' For
: are sundry sorts 01 inordinal Speecbw
and Contnmdics against the prince and (he o-
tnte ; at ibttje that are spoken againtt hit m^
jesty's perion and blood ontrageonsly, or in a
conspiracy ugaintt the counrry, understood in
same manner by Clami, paragrapbo Lcsz Ma-
jniatit, num. 1, in fine. And here it it only
that the lawyers 6nd the bcnrers and n« re-
vealert, and not apprehenden, to be pnniibcd
by death : Cfatmt, patagr^bo uldmo, qnnt.
87 nom. 8, Pnnctos in fine. And yet he re-
juiiet ' Dt adkit Tracmtua.* Snch were Uw
Ipeccbcs otEtred betwixt CatiliiM and fait
omplices ; ' Ec non nnda yerbn sb aothom
ammo detoila.' In which case it it well
t«id, * Quod oimen mnjeitaiia ajiulicibvtooa
* in oocononem, ab prindpalis maJMtalis veec*
' ntionem haliendum ut,' Leg- 7, S fi, F. ad
L^em. Juliam MnjetUtia. The second tort
•It mhere ' directa veHiis aoimo injoriiodi
' Ticiis imptoperat,' to a prince for lack of rii^
tue. Where the lawyers remit (be author,
' Lege unica cod. si quii imperaioii tnaUdue-
'rit; (it not being yet condescended hSit
amongst tlvn, what ii caeaned by lite won
Reailtenium). But anoil the hearen, nor re-
vealers, and not an>rebendcis not a nam, hnt
on the cnntraiT, * qnod nulla poena teneanur-'
As ' in onmi Jdicto iu» casibut dictit,! Cltnu
sBjt, num. 3. ' Verticido quod tameo, dicta
■ quasstione 87.' Far less can the hearen, net
reretlen, and not apprehetiden of the authon
of the third sort of speeches be concloded nnder
death with Ibe £nt ; and that third tort^ in *ll
bumility I tty, where vice and lack of virtue it
- - - ■■ ■- vetbis. (taniota abe*
Mint, and ■■
■ 8t>e«cbevit
fubm
*aid„ against his most sacred miyesty, not mdy
bj the Buthort, but also by ibe concaalera and
. not apurchoiden, wbaterei the tcandaloii*
ipaecli ne. But be that hears and not rereais
a higher speech, thiU be punished as be who
hears ticaaon. The connection it cleared by
' Quod dalicuui uiyus )>lp*"o dif^notci-
. _ __ — ■'-],.■ TnctatuHkcnni
injoiiandi).' Bot at a iower oc
flonrishing weed may afford both boae* and
venom, to Speeches written to aite good end, ,
\q ane tnisconstmcdng illation in»y be inte>
»«t in arte evil tense ; at llie inlbrraer of titt
Diltay makes the alledged Supplication to b*
a contumelioui and inlamoua libeti wdcb
otnnot he done, in all huoulity and tuhoiiwoa
I say it, to inSer the Ditwy aninst this Fen-
nel, upon the nid addiboo m the a« 905, s*
hearer, not rarealer, not apprcbeodet, withMt
est absiin% wtinst Ae law wd rMWo.
is. For even m tpeecti, ' qumvn dii»
num esse doasinva bomiiiuei e(
< bwieriM, quod mm debet author ptmin ;
concluded re^ittivB. ' Ga»ar Orcelto m ad-
' vocatione ad dadaMnen Maibei de •»«»
' aes, num. 68, 6S, et idem admcationa in de-
' cisionera SOT, nom. -15. Qaoi '**»__^
' dviliter capieoda et
■ itideni in dicto tract
' tw dittinguendiun ii
uincertiaulhoriidiri-
.„Googlc
«18]
STATE TBIALS, 10 Cbarlm I. IbSi—for a Libd..
[C14
1, at M iliii oon iiceit ■qfumantDm MneN,
. hU *«n> Ikeat.' QimL 6, num. 13, ibi
icvi4eudmn. But of tlte Pucicular*, uid
n of (hk General, more hlU to be taid
Oolj afuiut Detaton of Speechea, callsil,
'Fnunenuiri) nOtacuiiai,' let it be r«inetn-
b««l to tbe jntke, that tome gnod emperor
< qaoB iofiuitu ilhutrusunua et sqccBUwiaiiia
* npnator untlerprccurrit panuangu,' used
thcM folki to kooir whit the people thought
of tbata, tad boit to amend auy slips, if an;
wwc. CapitoliDui in Autoniiio PliiUnopha
wji, ' Enit f&in» ana curiotiuimm, refjuirem
'ut'ieniDi quiuue de k diceret, emeudans
' ^qa beos repreneoia viderentur, «t passw* ae
' ioipane cariilando p«ntriugi, dicilur civiliier
' ae egigN.' Xiphilin reports tbe aaine of Tt-
tM ; ' loM Tibanai deprecMUi est spud wn*-
' tumnioua prsdpitea.verbonim ptenal.' Yea,
to this taodit kiog Jaa>e» 5, of worthy msniorj,
hit diagniung liiiuelf for tucb anoth^ inquirj ;
M Klao Goran, one of oar dread lovctcign'i
moat worth; progeuiton, ii comniEnded for t!ie
aaOM bj Hector Bo;ei. .lu retpect qheneof,
the Pitiay ia not relevantly inferred upon the
twu ectaof parliaiweiit Lbelled.
It is farder alledged
for the Pannd, That
pailianeot mentioDed in the DitU^, and
^hereupon the sameo is founded, cnn be no
pMwd in U» for this crinuiuU pursuit ; in re-
riA the saidi two acts, and miuiT others of
t kind, but especially the last ot tbe saJds
two acts, and tbe additions subjoined thereto,
have never been in observance, custom, or
practice heretofore, SBainst anv alledeed con-
iTBTeeners tbeieof : nnd therefore canaot now
rective a beKioning a^iinst this pannd, being
a noblemaDkiiowQ by the hail course of bis
bygme life lo have been ane strict obsequious
ke^ier and observer of his sacred majesty nnd
bis most noble pro>;enitors their ocU and sta-
tutes; iu such sort, that it cau never be verified
that ever the pannel fans been so mucli as once
denounced rebel, and put to bis m^esi^'s horn,
(outlawry) fur any action or cauie, dvkl or cri-
nunai, nbatsome'er^ nnd so is not prtsuoied
to have contravened any of tbe said two acts,
albeit tbe same bad beax in cnatom and prac-
tice, as ibey bare not. And that the laid two
acts, specially the said addition of the last act,
are blleo in desuetude, nnd never heretofore
practited, is clear and evident, because the
contrary cannot he showeu ; And it baa been
received as a most laudable and warrantable
cmtoia anionEEt wiw and judicious politiqites,
ibat lavs in desuetude and out of oustom are
nut to ba introduced at an instant, without
aome new intiinntion thereof, wlien necesiiiy is
found for re-esiablishinf of the said laws ; but
neeiallyauch laws and acts, as carry with them
«w pain of deatJi, forfaaluire, or such-Jike :
Ijkea* aome strict acts of parliament of. this
kind, containing tbe Ijke or more siievous
{>tuas, being ratified by subsequent aud poste-
rior acU, iIk said posterior acts have ordained
iabmatien to be made ro the letdMs of ihe
■aid funner mcis, paina, and levpriiy thereof,
bef<»« tbe said pains iliould be inflined upon
IJie cunlnwener. And it is clear, that aot
only the Mid tKo acts luentioned le the Ditlay
are tiot of custom, and hnvenot beto practik-
ed, hut many more, coiitoiiiiug miuio less and
some greater paini, in the most iiart of all pra-
ceding parljaments I For whidi 1 uill only ad-
duce some few, to verify and initaace this part
of my aUeitdMnce, (at legation). And Gr-t I
alledge the lOSCh Act of tbe Tth parliament of
king Jameii S, oF worthy memory, intitoled,
* Pains ol' them coramittina Fraud in Aliena- '
' tiou;' which bears,'ahuui the end of the laiit
act, Tbat tbe person, seller or giver shall be
declared infamnui, and shall be puniibed in liit
person and (oods nt the Ling's will. And it
cannot be denied, but that ^is act hatJi been
many timti contravened, by many of good
sott, in points of double Alieuntions, and yet
was never lieretotbre practiiied ngainst tho
■aids contravcenen.
Tliera i« another act of qneen Mary's, i>f
happy raenory, par. 5, c. 16, made axaintt
tJiem that swears Bbonuoable Oaths ; nhilkact
is ratified by king James 6, of ever blessed me-
mory, par. 7, c. 103, both the said ncti bearing
in eipreu words, ' That far the roortli fouk,
' prelsts, earli, or brda contraveeoiug, aholt ha
' banished or put in word year and day, nt tbe
' will of the prince.' I liese ncti have been coo-
traveeoed, yet no pursuit for tlie aaida Pain*
has followed thereupon.
The 9nd net of the 16U) pariiament of most
blessed king James, bears, ' Tbiit the slnyii^i^ of
■ salmoud, amolls, kippw, or black fish, ahall
' be a crime of theft in time buniiig, and lo b«
' punished at theft in every quality.' VVhicti
act, if it shall receive force, and be put in ptM-
tice upon a landed man, (as questionleaa it mayy
it shall import him, or any landed man contra-
veener thereof, no lets ttian tinsel (loss) nnd (at-
faultry of life and goods ; because by ttie AOdi
act of the aaid llih parliament, landed men
couvictofthe/torreceipt thereof, commits trea-
son ; «rsa, lauded men, slayeit of (ntniand,
sinoltB, £c. in forbiddeu. time, commits tlieft,
. and consequently treason; which (ai'tlia act
bears) i« declared to be tinsel and fbrfUultoiie of
life, lauds, and goods.
These and many othar of this kind, ev«ry
where to be found amongst the said iifti, doe*
evince, that with reason tbe said acts librlled in
the Oitiay, and others oFihatkind, which never
have been practised of before, canuot be i«-
ceived against the leidges (subjects) without .a
preoedinj; intimatioit ; whereby good and loyal
subjects may be ta mala fide, iu case they he '
found after the said intimation is have contra*
veeued. And so tlie said two acia, ipeciaMy
tlie said addition laeniioned in the last act,caa-
not be found nnr sustained as warrantable
E rounds in law against this Pannd ; being a no-
leman, not only known to he ane observer and
not breaker ofhia sacred majesty his noble p)
geulwis their Uivs, acts, and tr '
taimf
615] STTATE TRIALS, IOChabm* I. Ifi34.— TV Tiui tfLord Babiteryu>, fCU
o him fur attedged bearing, cnacaKiif, and
not reTealii)); and Di>t uipr«h«ndiim of ctia aa-
'ieallrdf(«il iatBiuoiUeupplicMion, the
tlutrt of tlie
. ta and in the laid
DitCaj, which it llie tlnici and loMof liii lift.
It it alledged father by Mr. Aleiaader Ptar-
«M for the ponQcl, mlariilicatiniinf tbeEteep-
tion propouadid, ' (Juod lefjes per desueturti-
' nem turito conieiiRi cenMBior ahiagnxtc. mt-
' preiti Uge ftS. § 1. F. da. lta:«t lecanduu
' ipMt Don lirtaAtRi judicBrEDoii Itccat, fnnan-
' (ur, auism legH cun moribiu utcntiugi ap-
' piobaDtur, cuaonc iitiiiis lerciii diaiiaciioDc
' 4ta. Et M boc obtinet ia ciTillbot, quanto
' luagi* In crimioalibui, ubi tauto eaudus ngcn-
< dnn tat, quaiito raagls ptriculam vertHur?
* Unde illud pnpn qui drcceiit ut gcnenditfr
< cterici in qaiBquaj^m, ■ camibiit ft deliciis
' j«juiieni, quia moHliua uieodura approbttum
' nun eBt,alileragent«> crani^muonie reas, non
* arguit canoae supra citaln.' Aad therefore
ibe acta af parliament ohereupun Che propoii-
tium of tbcDitlny are fcuiiid«<l, n.Hie of tlicfa,
at the least Ibe last rh^rcof, m^pt having been
in observance ai no time siuce the making
thereof, now hy the space 'if forty ycnn, even
lince the Inst ucc ; tiia nets Faresaiii) sppcinlly
the last, cannot Biistaiii tlis Dil(ay, nor inAr (be
pains therein tnentitined.
It'* Hnswered bj my Lord Adwoeal, ThnC fill
the Alleitgancei ought to lie repellcil.in re<p«cc
of the acts of parliament, «her«upon the DiiCny
is founded ; and that there runs no prescriptinn
ngfiiast laws, and surcially Bgaintt laws probibi-
tire uf crimes, whicL are also pn>hibit and piinlili-
«d by the cohudod law; of the nature whereof
•re ihcM iwo acts whereupon the Diltay is
founded. And the Atled^ancp, ' Quod legfs
< tacito cunicDSD abrognntur,' is only ' per coil'
' urariam consuetudiiiain idque in concradicto
' jwhchi,' which i) tbM which the law calls ' tci-
■ citoconsenBD;' nndalltheBrgumentsaddnced
in the rontrHty, are ■ nii incommnrlo quod mn
* solf it.* Ami the indulgence of the prince in
the oversreia^ the punibhment of crimes in by-
(Bneiime^caiinotbe adduced to wntrant a crime
•ihrn it It punned; and sneriiilly when the
crime is of the nature of rebellion aeainst the
prince, in hit person, estate and p>Ternment.
And albeit this be a clear and tound answer,
and nottoa'ly knnwn, lltatcbeie laws bni been
f'lulin elcculion i hi4 34 years hygune; asname-
y, a^ainsi Francis Tennnnt, io the year nf God
1600, and againit Mr. Thomas Hotte I'a amin
1616, and lately against Mr. George Nicol his
infamotn Li I id.
It is duplyed (aaid again) for the Panne) by
Mr. Ahraiukr Prartm. That where i( is ■(-
Udged by my Lord Artvocat, ihnt Desuetude
' caoiiot b« otitnided t^io't nets of parliament.
wlncfa lias ttammt iTiim the common Ih>v ; it is
fttttwered, that ihe acts anent crimes by Desnr-
(ude rather lotvs their TJgonr than acts nf ciyil
bnsinesi.beccaaeiQacuenniinal there is RreM«r
lnuM,a*lM»orinen'( honour and lile. As to
Mj (XsmAim in civil la* giving wMMot to the
•dditino of thvlaat act of par liiiU'ut, it caaaot
be alledftdv ' Quia bod est la atacnao) pzaaa
■ mortis,' contra bearers, GOBCealeT*,aDd not n-
vaaler*, wbicb is the additioD of die act. AM
where it is alledged by my Lord AdvocM, dtf
Dcksetode of hiws is only ' per cootranaa cm-
' tMtudinem la judido coDtndicto;' it aan-
Bwered, That Deauatude of laws is iM^ H-
poBodad otherwise ^ tb* oilalioaa abore rr-
heMsed : so Chat ' lege* qa« DoaqiiM* ia gwa
' itjrcnsian producU sMntatqaamMibMBMa-
' tium appruhanUir,' are bee "" " '
■ licet Don sit coHuetudtt in
h is furlberduplyvd b^ Mt. Maiert Mtrgill:
Not tn ilive any further inta tb« actt of pana-
ment, but roipecting tbe distinMiMt dnadj
■aid, I HJledge, that the additioa of tb* >«•»,
CMinoi be thought to ba ' in viridi »b*trwatia'
in this our case; hecaiue if M amht U bt,lt
should much more liave been ptactiMd acniMt
the haveti, beancn, readart and aeen nf *i^
using Mr. Geoige BucknnMi'* Books: But Om
hath never been ated yet, act 114, paHi^NK
8ch, albeit tfcere has been many. Bat so it il,
dni ihie ha* not been used in its aw« case;
ergo it ought not to be betm to b* p«t in iw
■gainst ihi* pnnnal, wha let he hi» etber virtats,
has been ever u patron of dutiftil ohcdimce (o
his and our most graciou* and sBffetl snvere^l.
The connection is clear, beeause that Bonk, »>
sundry reports it who has ivad it Mt of ctie
coaniry,'ipsumregiminiieaKiin«nniiitiirca«-
■ vejlere, at impingit in regiata preio^nib-'
Further, if uU *»rt of spew^ (let tne say it iU
all due reverence) «etiiii*tlM tnajeaiT Bixt p^
vemmeni, cotoe under the acta Mtibed here,
with the addiiinn against havets, bMuen, re-
venlers, and not a|>|»r«liead«ri, tod wrre ' in
' viridi obserTantia,' vrlia straold not be broafiht
before this judicklory, and under the ciiMl|Mi
□fche said net; for as we live alliuMKliinily,
every man in his u«n, and talk thereof, M lix
we also in n comiuo a wealth, whereof to t*k
stHnetimes bineiiv (which is not to be atkraeil)
though fbdish: And an the mo-t partlhiaks
that they bare their own interest, and will fi«w
as il were the wiser, oill they will they, to heat
them. And anent that wkiich my iowl adv*-
cat says, ' qond iion v^eat arg«n«Dtn*i abni-
' coutffl'id'),' it ought to be repelled m re^ieet
t>f the place allediieit out ot Gailus. Libro •*-
cundo, UbaervntioDe 39. when be coodudc*,
that the ai^ument is good a|nin*t the laanMl-
pal law to make it to be ruled acenrdiDg to
the civil law, and to I^atn(nea reatoa. And
rnribrr, that onr own mutfidpal hws ot^tto
receive limitation according w reason. 1 re-
pent the fomaid fl5 Art Jac. i. I«m by the
said Act 134. Par. S. Jac. 6. il ia maile oipilal
to ntddle in hit highiwos'i aftiiirs^nd i-taw,
either present, byvHTe, or to come ; sayitg '"»-
ther, Thatnoiie of bis lukjects !■* wh^Ooevw
function, def^ree, or qnaliiy, presume in laat
coming to meddle a» said i-, without any ex-
ception : then shall a noUemaa, who ■» J"*
Bs it were by our lawite meddle in ik^wim
«7]
STATS TRULSi, IOCiukus I. I634.-^a liit/.
1619
a to peuuna Iiu najCKj
rt of lorernnKDi, fur the
a to bim, wKile tui rpa-
. Dot in parliament ; ywi,
a*cd artra porJiMWiUBM, his (acred majtsty
WM pMfiioned after b» mtyeuft nvocation,
h^na«*«r k wm coMcircd, and in whnUoerer
tMatSo tliat puniahnent of Speecbet anent
OavvmnMM, BMl the Ijmt, moat wceirt their
t^t Myaa. WbKebrt 'liU Ae^ h« wrvejed
(*hicb bm beea mo« i«j»llj be^n long aince
bf tua lamt aacrad iniire«tj>, Ki>d now ebacted in
hM irtl (larijaniatit) the hfflar of the taid od-
^iMl M^bt nut to b^ practilcd upon thi* pan-
oal ; ' Pan •niiit prwcipaa le^ nt volnntas, et
' TdboraM dicitur pran^Ufit, leg* non du-
' bikni.' Codicerf«L(fil>ua. AndMenocfaim
^Maim it arbitraritt Judiciw, giwi etception
trom imnicipal Itnt, according to equity and
It i« futkar doplifetl by Mr. Soger Mimat,
to tliat pan of mj Lord Adfocat's Answer
MWnl the toituicci and practices alledgrd Ibr
proving of tbe Cagtoni and CoosoMnde of the
aaM two act* nf paifiameni, to wit, Francii
Teaaant, Mr. TbotDa* Hon, and Mr. George
NiOiria ; That tba (oid practices or instances
canaot be rvsfierted, became ibe; arc not pro-
daoed : and il thej were prodoMKl (■» they are
not) it sboutd be eleariy it^ncn, that they met
wot in (did DM writ) thii eaie, rither brcause
1^ an B»t rounded UpOn the wirl Bct» nf paf-
tiancDl, atid specially opon the »iiid additinn
coDtxinad in Uie aaid laai act, or eiie liecnnip
the crknes are nntalike : for the fint rritnp of
Tramai-'a waa ane Cokiland (Libel) beBF)t>c niid
proporting npreaa pofitive icandaii anri re-
praachm, whereof he wna condemned to have
been the actor and anibor. And so whether
he wu pursued and convict upon the acts or
■|Wn tbe ONmaon law, hia Diitay "m mm\
rc)ev«at. At lur Mr. Tlinmat Rom, his crime
wai alao a most abominable speech •ritten lij
hunself agnintt the hail natiun Jirecta vet-bii,
qbereof be conreised hiiDself (beine opnn pnn-
n«l) to b« the penner, firmer, denser, anri di-
Taljter; attd cOpiea of Ilis most infnmoiis libel
■Used Dpon public places with his own Innd :
and to cMiiot be olnruded as a practick or
pteccdant in this case. As for Mr, Geort-t
Nicol bis crime, it needs not to be nnswered,
becaase he woj am p:inDeII«l nor convict ; and
ao his procMa inteiiteri a^inst him cannot be
■ddacetf Ha ane practiric to rnle the lite otses
thereafter : and tbe pain inllirted npnn him was
hy wanand of council, and so none of the soids
practicktcanberrmecced. In respect qhcreof,
the aifianient fcimited upon tbe rlesuetode of
tbe said two acts, and the risncPr that may
fcUow hereafter upon other auM of ihnt kind,
&c. whic*i hare not lieretofore been practised,
Mands rejevant. And it is craved, that tiie
daagers wlirchmaf ensue to po'id sulgects trpon
tbe pfvotice of tfce acta before ailed(ed, may
be advened tino, and the dsngtmas aeqneis
fnrcated.
9rrando, It is nitedgcd for die Puinel by
Mr. AlManirr Pttrtta, under ProteitBlitm fcr-
said. That riw Writing »hereu|»on the sob»
sumption of the Diitjiy is fbundit, is not an
inlamous libel ^osJacctMatunt ; neither in Uia
panDel'i pnrt in the particular* libelled against
him seditious and auuioDious ; neither ca> he
be presumed to have had any soeli iattntton.
First, not ane in&moui Libel i^uos^ accMialnm,
bn an hunible supplication of some lords and
comiDissioners of the late paHiaiuent, otfered
to hi* majesty hinuclf; whereunto the Sappli-
cants were induced in lore and tendering of his
maiestjr's bonour, and in fear of their nflance
to nil miijesty li; their votioganent some acts
of the late parliiment. For remonng whereof,
and tur satistnclion to his oinjesty, they did
homblj beseech his nrnjeety to be gi^cionslj
pleaaed to ponder tbeir reasontfor dis~«9seDttng
froui tbe saids acts; and to consider the Sup-
plicants hearty obteqiiiousness to his majesty
111 otter ntntters of the snidparliiunent, wherein
they did furbeHT to represeot any thing tn tlta
contrary thereof, for testihcation i>f their in-
l^eDDom afeciion to bk majesty, Tliis doing of
the (■upphcanis is no crime, isd de Mlara
huit ; atid fsr trotn any culpable comiatsaioo,
in meddlmg <*>tb things not beloa;ing to them.
And it is hard ttiat any supplicants deprecating
humbly his msjefty't offence, shoald by so du-
iog incur his mnjf siy's olTciwe, nnd the crime
ot'cnpi.el (luntshment: specially ibe snpplicnnt*
ha*inE no priTurc nspects, but fur [he pablick,
whetdn lliey hnd interest and apecinl chnrge ;
and for Conaerration of ibemselvcs in his ma-
jesty's gnod fiivour, the loss wbeieot^ or the
leer of loss, should be mu-t grieiousto any
bynt 9ii){iect*; ■ Cujiu reipubhcx tanlus ubi-
' c|Up Inrur ut proclainant legr« (|nad reipnblicse
' venerandx causa srciinduni bonos mores sit,
* etiamsi art contumeliiini alicujus privati pertj-
' not, quia tamcn iton ei inente mngistrat as licit
' ut injurinm faciat, sed ad ritidictnm tnajestatia
' pubhca; respicint, nctiiine injiiriamm non te-
' nttur. Leg. 13, F. de iiijuriis et fHmo«is iilidlis.
' — Est ergo qaoRd accmntnm Liiieilos bupptex
' et ii libelliis Huppleii postulsl jnn conir.tria,
' hufusnintli postulaCii ab omnilmt jndicibut re-
' fuinri pnecipiunt leges et snpplicaniem iterian
' super eadero causa mm sadiendum, L. 3, 3, el
* 7, Codice de pr«sbus impefwtori offerendia.
* Scd non ideo supplicant rens est iccleris, qnia
libcllos continet refutnnda; nee libHIus sap-
ideo fnmotus, cam h«c fait tn^ryioa. —
I Lihellus fkinoiiis quoad accusxtum, quia
ad iufnmiam, scd iaroris Concilintiaiieiu,
ut supra: Item non clnaculum rt sccreto,
sed [iTofcsso et reapse d^uimi regi obtatus.
Atque ideo nullo inodn quoad accosntum dc-
trnot.itorius adt calnmniosus, ctlin detraclio
sit ^lemtnatiu msii occalie, et caluinnia lit ad-
verse abseniem ; neuiram autem coramitti-
tar cum is cujus interest propoitnt querelani
coram eo cnjus parte sunt de ee cc^ nOscFre ;
dp eo cnjiu interest reipnbticr ^usqne snlnlsf
ciunnduutaxst. — Nam libel lusndnosus quoad
ac«DMWa>, qnia wm ontRst dir«ctb oucc
;k"
Bit] STATE TRIAl^ 10 Charles L 1634.— IfcTViali/IoniBahKrsio, [630
S bat M it
( tioDJtiut in quibui venit Tcrum aut folium,
' quod omnino rcquint hbellui fiunmiu.' Leg.
nuca, Codice de lunotii libelliu. ■ Sed |iok-
' tulitii in quibm coJiiidenniluui venit boMuui,
' jiutum^et qui verum cl fnlsiim nan agoiMCUiit
Farder, tlie Paanel cnnnoC be presumed to
liBTG had uiT other intentioa than the stmin
and tenor of il, u ft tupplicaClon doM impl^,
and wliich is nioit btseeniing tlieret/i ; lo wit,
tdtbe ToiceoranehumbIe9U|,pUcaut. ' Eawn-
' tentia BccipieDdu est aemper, nun r«i gemidK
< aptioi e«, et in atubiguij orationibiu inaiime
* woienlut (pectanda est (jus, qui eat protulic'
De H«gulii Juris. And it is alwaj» disagree-
ing to a humble Supplio'nt to tax or atluniniaU,
and therefore il cniiniit be si> expounded, but
ihould be intcrpieied the best »a; ihe wordi
niKy admit; ' Quia de jure iil dubiisetobicurit,
qviKl ainimum et ben<gnius eu lequinur.' Leg.
V. F. ibidem.
Ilcm. The Writinn aroreiiid, ai in fbrni or
SujjplicBtion, (rai used also as a SupplicatioD,
. and so deliicred bj the Pannel to the earl of
Roihea, lo be presented to his mtyM'T. a* af-
firmed bjtbe Dictay itself, and iodted offered
to bit uiBJesij: whicli, howsoever his in^eat;
did not accept of tlien, and lake the samen to
bit coniideratioa ; jtt the tuppliranti did think
that the very pretentatiiiii thereiif did seem to
mMure the nature of the writing to be a Sup-
plication: and sea reel J even could ibe wiaett
conceiie so of ibe pannel's hsTiiig tJie writing,
a.s it it now interpret against his m^esty; but
think that hts majesty bad past ^1 oSence
thereof, as the law speaks of action of iiyury,
whereof the present accusatiun is a kind. Leg.
S. ^. 1. F. de injuria, ' Verba legis injuria-
• nun, actio ex bono et eqao est et disaimulsi-
' lione abolilur, si quit enim injuriam dcreli-
Uius ad animum Buum
a ponitentla rttmii-
„ .1 DOD potait recolere.' By the
which it BpptATs, that the Pannel hnd no such
mind or intention at tbe DitUj would rub (fix)
upon him in all ibe progrm of the matter li-
belled BEainst him, And I suppose that noot
will think, that lyr the preaenlBtiua of the Sup-
jrilcation at the 6nt u bis inajeit; bj the Sup-
plicants, thai they then by so doing were cul-
pfthleofacapital crime, if tbe same hud been
inimediatd; therealier detlroyed, and i
more seen nor beard. And if they then were
not culpable, shall any lupervtnient act make
them oilpable, or more ciilpubli; i ' mi
' nnnquam enim credit ex post facto prxteriii
' delicti estimatio,' Ltg. 130, j 1. de Rrguli
' Jur. ' Multo mioiu ex piiit Ibclo oritur ni
' viim delictnm, quod ab initio non tiiit quoad
' accusatom, aut uhi offenn si qua full dissi-
' mulatione abolita git.'
It is eikcd (added) by Mr._Itobert Margdl.
If it bad beenleisome (lawful) to this Pnnnel,
at a bom cooniellor, in that great council and
parliament, and other noblemen, to propound
M Ins most sacred majesty the [biap contained
ill tlwt supplication alledged to be tcandaloat;
which ere not affirmati
grievanos, remonttmaces, . and eipadieiiB:
then it wus also leitome to ib; Paiinel, atd
0<hers, t>i represent even out of parhinaat w
liis must tacred majesty, our dread SDrerein,
what they coulil have propauoded tb«i, bat
did abitain (therefrom) for tbe reverenoe ib^
carried to bis majesly: specially when tbey did
thereof bt«n, and out of a mott loyal aflktioii.
■ £t prius est verum eigo «t poiterius.' Hi
erity of tbe minor i> plainly embraced b|
Bodin, 'qui est accriimnt Bcgia n^ettil*
' propugnator,' cap. 1( lib. 3, ■ ubi de KMti
' et quiMl senatori de rcpablidl loquendam M,
pnesertim da omeibut fere capitibns in «p-
plicatione bac conleotis.' As to tbe cooneo-
ion, it depends Erst on tbe duty uf a gooH
couueellorliere, to whom, at God batgiKaM
be endowed with reawu, to our most Ncnd
io*ereiga and bis progenitors have giren to be
a. wise man aad couiMwIlar even from hit biidL
That he may learn to eiercife hit reason frMS
hi< birth, fiir the henefit of tbe commanwedi
_ ._** stem to him good, and even couiBiun-
oite diemwith othen, for trying of theMwel
spednlly at ihit time of surveying of the Itwi,
that ncoordtoK lo tbe time, and other cuma-
stances, be may fiiniitb U> hit nuyesty bis be«
lunsel in every thing that he thinks may coo-
rn the weal of ihe rouniry wbercii) beliie,
asbyduCyeienfromhisbirtfabeisboDDd: hke
to the labnurer, lo whom in a rainy day, ' qua
uox cmlo Qruperanda sereno maturara dalnr.
Next, it depends upon tbe good mind U 0*
Commonweal, qliereof hit most sacred nisjestj[
I the bead, < ut non leneatur iujuHarunqu
quicquam reipub. ciiusa faciat.' Neither »
that thou^l to be an iuinry. Lege Ii^niitnun,
13. S- 1. Lq(« quo*! feil*' *■'■ de InjunisjupcO
Le«, nerainem 0 Cod. ex quibua causis iirngetuf
inlhmit, at Lege ei varia quarta de Delatoribiu,
lib. t. Cod.
Thirdly, It does depend upon tbe concepnoa
of the words, which Is fay way of most humhle
Supplication. ' Et verba propter aijiuiirtaii
' mutant naturamsuam.Carvettaaddaeisioiies:
' afflicti oeqoe tnm refen qiialia lont qua in
It quan
lodo effettp'
AcQoiatilianosilib. 1. <Etutiu»Ili>
' rebut ita in scnnoiie, forma det etsealiaiBter-
' moni ;' for even good words may be used i»
an evd sense, ulAeiifioM sir.' Bucihisis'sc
thy or all praise: ' fc si non dedans C^p
' perinitie rogari, offeudunt nomiuam van
' precGsque Deum,' kings are gods on eartji
and albeit by Bodin titraiia prwwrofw M
counted inter jura majtitalU, that from a (ini
hinuelfthere is no appcUation (appeal); I<tbe
cnnunands the tort of appelbiuoo ' F*HVf"^
Pii/ipimpi, and alledges it to be tbt <^nMn M
Baldni, ad Legem prtmain et ultimam Cod. •
Relatiouibut, et Leg. 1. J. 1. F. de Ap|>ei*'
tionibus, vii. to hit majesty.
eel] STATE TRIAI^, IOChauuL l05*.-fir a Ubtl.
For teaag ibc aliMlited icaiMlaloui I^thjon
wii oSered to hii ukMt Mcred majcatjr to be
read, but not receir«d not read, nor kiter du«
eiiMHiAmltoa candcmned bj b'a maJMtj; it
wu not tboaght wi dmugeroui (lei me ipcu it
wtib revnence) as to coate uiujer the compan
of ibe act* of pftriiament, <uid to ai it ougiLt
not to hare been dinjlied : I mean, ia tbat
quiet manner, as it might nM be imparted lo
Hr. John Dunmure, ' lubugillo taciturnitati),'
BDil not ID lm*e been copied. And birder, the
FbdbcI pu|;bt to be etcuied and a»oilzied (ab-
«alTed)fiiMB tbe Ditlaj, ' ai deJictuot dici d(^-
' beat, qiHNl cum loquimur in delictk in quibui
' doltti eiit de aubUnnlia delicti, tuni credulitai
' et tif ejoua ntc injiiitasit cauta, eicuset, nata
■ iMtelOTtestara animus delioaaendi.' Clariti,^
fiaal. Qnnt. fiO, num. 99. ' bt in delictii to-
* lautat noa Gnii aueoditor.' ' Gailos lib. 9:
ObMr. 99. nom. 6. ' At bic nullui eiitu* nisi
' bonus, idem obserraiione oiKleainB, qundJn
' delictis principiiun nun finis aitenditur,' nunr.
IS. '-Ubi de bomiddio perpetratur ec oonsi-
' liam ccnvilia tsoditur. Lege linon, qninta
Cod. de Injuriis, ' et causalur hicc actio ex af-
■ facta iofereniis,' Pbarm. QiUMt. 106. lospect.
3. nam 3. ex Lege itlud tenia, ^. S. Leg. non
adofli 3, in princip. ki quia lenum S6, de In;u-
I ubi Pbsrtnadiu, ' Quod lata culpn his dolo
' KatJDAis subdit,' Num. 118, '
* gwDdnn delictum ct malum
* tim cam in publico dicusunt.' Wlucb wi
Mtf , Him it <rai not concealed, bnt o8ei«d ti
be given to his most lacred majesty ; neilber is
it pretDBMd that anj man has a mind ta de>
hate ha neighbour. Phem). ditta lospecC. 3.
BOSS. 418, et sequent. And were In not loiie
tboo^t more than mad, nho would draw up,
nnteadof aSoppHcation, a Libel full ofdettao-
boiu aninst his SMred sovereign lord ; or who
•toJd keep the lanw heiide bun, let be to offer
to give it to his dread soTercign? And
tsiia* of Lcte Majesiy, ' Dolui mains est de
' lubriauiia crimims ;' it being crer sud in th
* Digestif, Ciyui opera dolo mala quid (bctni
* sit id icmpublicam.' What ahsli it not be
dt aiiUMttia delicti, in this alledged crime of
dctractiog, not so e«il as is nlledaed in tbe Dit-
tay t But as the same agrees wiln a retnonitra-
tivesupplicatiaD (let meia^itwith reverence)
wrong poised, ai ic may coucent, the Pannel,
(where be had to man; probable causes induc-
ing ban thereto) ' Quse -qaalitaies et circutn-
■ siantia conjectarB, cum nulla ddinqsendi
* oonsnetiidioe probata, rcleiMt contra dolam
' prvsiuspcom aiiam propter pinhibitioneii).'
Caieriva, feA. IM, 105. in. That these things
M^ght bare been proponnded in parliament;
Tbtfa* wMaoounscUarof estate; That otb«r
■obtoien (bongbt then alse (as) well of it
be; That.itwaaibr tbe weal(at least ID appre-
hended by tbcia) of tbe country, in this time of
Mrreyinit die laws ; Tbat it was offered to be
gii«a to bii Biu««T,-«Bd tbatimder tbe fona
of a most humble supplication ;That otbet bare)
supplicRtiuni i^incaniin^ the estate had been'
received grticiooslj bj hu roajeit; ; That it was
not then taken notice of, uor upon considera-
tion cDsdenined. And it might have beeo,
that if an; here bad perrhjnce lighted on it,
the; would have done worse witii it than th«
Pannel. For, ai Quintiliitn aaji, ' Consilium
et Itatio quvdam acti, pe tita et plura perpen-
deni, ac compamu lattnCibna rcboB et dnbeia
■dhibeoda.' Now no right nor rirtue in itself .
«n be seen hat piari facia ; as Plato savst
jea, rerity, equitv, and otiliiy, are lain hid in
the diBw-weli of Democidtus : ' Et ut qnlsquo
aliissioin luente est, iia ei altissimo Decnocri-'
' ti puteo quBN sobmersas verilatcm, >qniia-
' t«m, et utibtatem, niiitur haorirc.' Yei so is
the reason ofmanobfuscai (darkened) aince bis
Fall, that be cannot penetrate to that deep, for
the dnrkneas; which by discepcation of con-
trary reasons, like two fijnt-atoaea stricken upon
other, some tparkles of light flee out, for letnng
see to draw forth iheie virtoes. Wbereiti
consider alao the Pannel's carriage and his life
by-paat; and if any thing tending to sedition
wag etei heard of him, or even what eflcct baa
followed. ■ Qualitas enim facti ei persona &.
' cientis preaumitur,' Glosia finali Canone nou
omni*.' 5. quest, i, ct dicia Lege septima, ^ l:
F. Ad Le^em Julii Mijestatit. ■ Ubi ait mo-
' deaiinus, nam et persona spectanda est, an
' facere potuerit, an ante quid feceait, et an co-
< gitavent justa, et jam caasa excosat a tedjj
' tione ^ua jam enipit.' BoeriusTractatude
plo Moisis et IsraeUtarnm ad Aqoot Biariba.
And shall tbe Pannel, who had so many reasou
for him, be thought punisbable ns one aaditious
in that mean matter of divulg^g as said is, of ■
remonitrative supphcatinn i whereof btu by
ilktitlb and misconstmcting (tahapatt dice-
rim) it is gathered, far from the Pannel's miodi
that aedition might have been moved. No,
no, that man is opiy styled seditions, wbo, by
direct speeches, drans the people in fiuitians,
aod going madly before one of them, cries out
the word (wtal) ' scilicet bee aut ilia fectio.'
Borrius dicto Tractatu Piamisso 9. num. 3. El
Careriusfol. 10, 31. m. 9. num. 3,in fin. nfai
etiant dicuDt, ' Quod in iis quoque qni jam se-
ditionem eidtarunt punieudii requintur, et
studio se rumoron et lumuUsm coaciliareut
vociieratione.' Which thioas, seeing tbeiy ar«
o far from tbe nature of tbePunel, and fKaa
his doings, bik inteotJoiLand mind micbt itt b*
December 6, 1034.
It it alladged by Hr. Aifas ffoiet for tba
Paond, That tbe aitUT >* "o "ay* lelevant,
because nothii^ is libelled to infer a seditious
and sinistroos intention of the pannel, in con-
trivinj^ coDcealine^ or imparting of tbe piece
cl^lenged ; ndmer ia it libelled, that the
pumrl koawing tbe-alledged Libel to be seds-
tiBOS aW infamous, concealed ar diTal|[ed tbe
SilJ STATE TBIALS, 10 C«au.u L lS»i.»TV Tnalrfhwl
atatt; bM 111 (hecontnir, it ii libMIud, Tbi
UtePanael, uDiBediaicljf kftcrtt>e receipt iliere-
•f, delirtred ii tu ay lurd Kaiitei to t« pr«~
■eotnl CO his miiJntT, wliich cltflct tint cnndau
of fail LBleatiun, aad tbe opinion iMtiMlorth
nUure of tbe piece, and of the ttac be i bought-
Might b* Made oF it to prapiMt tin iDBJeN^.
and not to traduoe bis i>MrM.pcr«>ii or jEnrcm-
meni to bs rabjeei*. And tltrrdbfc, a^it lie
bail ainceaied tt, and divulfjcd ii, be cannoi be
r vlaoiiani in the inim tif riw acii of parlia-
KiCDt, wbidi nre enlf ajtaimt teditiuiii Coit-
trivMl of slaaderoua WntiDp, and malicioui
Coacralen of Writii^^ nottourij and la dieir
-knowtedfje Mditiou, tiptmij compiled b; in-
centivei and firrbrwirft of icdrtian, - and ei-
EaeHM tltcTiewof tb* adtitcufor tli at effect,
r the Kordi af tbe acts of pariauoent (To the
* TcpioBcb of bis ma^o'E peiiMB, estatf , and
' gtnennienl, neering up S«ditiun, rendin;; tn
* rtecr u|i the bearta wf tbe Mbjeot* to hatred)'
iniptietti inieutim). Aaii tbe civil tmd can
law rtqaircth ' dokra generals in omiii actio
' injarlnnun tamjuMa subMantiale requititBi
Ga^a lib. S. ObMrraiione 90. And eipresilj
both in lh« cniapiling and diinWiog of uditioui
and in&Mou* libela. Leg. Lex CoTntlin, § 1. F.
4» !■}«■>•, ■ Cbo) dolui noil adett, ni»i dolo
' tnoiaqauJeceril (viz.) Libniin ad intaiBiam
< aUcajua pertineiiram >crip»erit, conposaerir,
' lel Midaiu.' Leg. illud ^ lane eodeai liialo,
* bapiAfn et Ibridau* aoa pwitrot facers inju-
' nam, fda scuter etc ilali cnpai; oaiu hi ao-
* hmt pwi iajuriaiti, unn facere : ciun enim in
t JMcia ^ atTectu facMthit aoa cocuiKit, consC'
' ^uani nit dicat*, biw sive palsaot, nre con
* riboB dioiBt tiTJuriam feci**e nou videri.
I«g.34. F. deUbligHtionibuf at Actianibua, te>
juna «■. aiectu ait, inacitauoiHbat de Injoriis,
i. 1. Leg. t. y ultima, F. ad Legem Af)uHi(iiJ ;
Cbi dica JbIbihhi, ' ActJaneiD inJHriMuiii non
f entapetMe, ff via iion fecienih* i*fvia caaiain
<ftccrit,wd mancnda.tc rpjuria n*D fiictam
* ^ucnUi, ead conaa farieada eaprewa.' Leg.
. 30, Ae Fanii dacrtci aecnnda parte, Caaia ,1.
ftaeat. ], CaaMe 4, > V«rb« wut (li vim
' «lnit>«iini ^iia iiMoMe lanC) tdlicel dolove
' ' le quasi astboram hajm-
Mntentin lutjogaaduin.'
■ et aMitoctann in «*rbo Do-
I CtmiL ff30. i* fin. lib. 3. Cdd-
Ml-ia4in.l»b. 6. ' Datum in injuria rc-
Kit, aiaa quo itjata dial aon pWeet.' Tdem
mI.^TT. Natt.'l. *i>lliniine4. ' RMpaadet
-"ioni AjIo wqw jiaramr
CnwrHta, conwi. 41V.
II oancib^ autn. M. ' Ah a^eM
■ actiune injuriaiiiiii dtlwt aliagari dolum ei
■ omnia jura clamilant, injuriam' non fieri line
'aDiino io)Bhandi.' 1^. ti mm CuBviiii, C'--
i&OBile (tyuriik, *MbaauM. '«i nati ccBvitM
■ conoilio probai-e putaa, te jiliqaid injanoiam
* temp. Mm vcri a cakHMtm defeaderit.'
leg S.^l.f.df Fanii; • M»Mci«vdaotM«t
•pnHMMiiam dfiiuqaeiitii tbirfnguit:' Lag. 14.
VC ad Lege». t'DtiMniR deSiewia:' in laate-
*Aim wiwDtaa ifaaiaiaf om «ii<w.* bf.
malidiierit.
< digna censetur, an ex iiutiria et lic reiaineada
' dectflretnr. Sic itiJutiB eoatinditur et rtci-
' prucatijr cum animu inJBfifinte.' OmoctDoe-
cnrea, Alenocliiui eonnl. 197. (tb. 19. pn xa-
mm. The cB0«e debated bj ihe doetot ia »■
incident wnb ibe pieaeM, but not so pit^unt
in foTuar. ' Argoebatur senator scripsiiM in*
' Juriosede principe in baiicsenMMB, qood cm
■ senacoram numeriM ucili ganctieM cOBttUISt
■ hHuel, poetea e«et amplMtns inportuaiwlt
' et aiiibiiione puatulsnciui ------
■ conuiltuni fuisset, et it
' ninuluF, deni^ue, auC deitiu
' ia immenmm crevtt iniigna
' diaisJBOtaraetiiiutili.inteBRi, lofiaaqaeiwtiH
' inoDtmodo addiderat, bogpiMtinii>liiM iota
' (Ut palriam inaiime gravari ec fwemes iMUi
' reaianere gravaloe.'
Henochius coAiDkaa num iajonnM toip-
•erit, rrtpoodct, *Qui injuriaram el
nileJi-
inilitolt; Aio debM pro-
' bari, nitenini verba esse injurioH, altenna
' praltUe e»>e ammo injorinndi. El hac ne-
' thodo oateadit verba nun eiae injanoSH, quia
' laudain duci> oonCinaDt cum (jo* ci>sriitBlio
J dicatur optima, et potiHs boao lete ft pro
' ccUitudinis atititateprotnta videatur. Dmde
< arguic seMatotem peenstn noa iscidiile,^
■ verba injurviM etiam de aua Batur« pmuiaar,
■ c^inm cu<n animo injuriandi piuftrnatw,**
' piieiuiDpiio jnria Mat. pro «o qui yrotnltnt
< aliqoa verba qa« videntur injnnoie, at An-
< tareadixisMBbsqae auimainjnriaBdi. Et^
' Mtit nperqM fiiMlaM «t iateniio smUm*
' quod aiT^erit pradiota,flDO humIo non uiow
' oficicBdi ii^uria xrenitmmni princitcni, ted
■ pMioshnidsadtet similiaverbaaMbditobtnt
' merito de pnncipe pnesninitur prolMa potiM
' bono sAn. Secmtdu, qttia quands verba h<>(
' dubia, ttanduiD eti dcclarationi ejos qui ea
' diiit : et ^ando tunc dubio, similiter d«d«-
< ratio ab ahis verbis pr»c«dentibiM vel vAmt-
■ queBiibuB, vol ab uirinue. Et in ««m diot
' senatorent principem laadane, coa dinnt
■ fiiiHoni arbitrin hk celtitudinia, num ieail»
' turn mntieTuia aug^. Addi^ ^ood iajen*
' reqaicit dolom, wne quo Mala dia naqaili *
• iir casu coaHat oamem dolom ebbiue, if»
' dolaa oon prcRtnaitut comituMai OMim f-
• MnaiB beiiaMeritm ; non ^nnnailar ip bo-
' miae probo, non prBMtnntar la eo on f^
' beaetieia paCrta Mi^a verba prolalit, qoi
• priacipi* per«onaan videntiir aSccre; aW
• prttMsitar in MMito, quia nih^ nnaqaa*
' cantn priacipenj nolitwa ett. Qua )***
tamper mam. mag.
v««bB VDoe vel tcnplil
diractaiunt
.J>
apem
et ti bKC in hi
kmephvuo
«M,
uwimu TimEia iii uuiiauirv avwri wt il»J«l, •%—
•lioqai
STATE TRIALS, IOChabluI. lilS*.~for a Ubtt.
695]
* grwrp detrimmtum f dmvcttn in jimili owu
' didt Ju<t««s Cbri«i iniiBictn, in dobio nan
* pnnumitur, aHqaid diiisie id iiijariani Chris-
* ti, qaanw miDo* iebet pmuini crimen inju-
* til ia tubdito, contra ^aumdoIniIl^n1?' Idem
ibid, nun. 96. ' Coiijuuccui nan preiuinitur in-
* JHrtR, cotijuneium nnimo injuriniidi intra sep-
■tiniDui graduin.' Glossa in Ltg. veMM, F. ile
lajurlii. ' Alulto mmut prsiumendum Mt
' Mibditnm velte injnriire dmninum suam :' et
Can»il. 6. ■ Non ts[ shoile quod vir facultBii-
' btt> pieniu adeo aruhui fuerit, ut prodigus
* asM personx ct ttrh, et (tuod liolus nan lolet
' comttiiliicontrauuitumpnacipeiiiisinecBnsa.'
Ideciua, Comll. 356. * Abfiolvit quendam Pa-
* ridon Kdinonis insimDl>itiin>, quum nidio
* aniroo iujuriondi dhcerit alio loce cjnod prio-
* cep* q«idam male fnciebnt, et ikcere uon po-
' tmt, quia adita dicenduin poterit buna zelo
' iBOveii, et in dubio prcsutneiiduiii nc ut de-
' licEuQi excludatur, et quia pnesumptio d>-
* iidi removetur propter bonam famara et opi-
' nionem Paridis.' By nil which preturoptions,
more prtgnantlf CDncurrins than in any case
euant iu Ian, the pnnnet'i innocencj ii cleared
sbnndaiitlj. And nothing fnrder can he ei-
acted but hu dcclnration bji oalh, wbich he of-
fen moat wil)ingl,v ; and b; llie anivenal and
VDCoatrovcrted practic of all niticma, Kconded
witfa like preBumptinni, imporleth absolution :
* Quia probatur anima* non injanaodi, jura-
* mcuto ejiu qui iDJnrism ininlit.' Guido. Con-
ail. M3. num. S. in fine. Nenoch. de presump-
tioDibus, Ub. y Preiamp, 40. num. 32. Idtciua,
Coniil. 856. < Qna liitentioiie rem Trrta dii-
' erit ab qua aoimo pendet, et ideo gtu deda-
* ratiooe ctnn juminenta stnndum est, quia de-
* pendent) but ab animo status juramento ejus
* de cnjusauinio dubitntur.' Leg. 1. CoHic. da
fiicariis et aliis Legibus ab ea citati). Oodo-
phredui ad Le^ein li non conntii, Cndice de
Injunit, ' Reo purgationii jununentmn cauta
* oognita defertur hnbitl raliooe persone, qui
* injurioau) naiura sua terbit u$a est,' Gallui,
lib. V. Obwiv. 106. ' Notuin est iiijuriam abs-
raju^icatum reiert.' And there-
fare in respect of the preiuiises, the Ditlay is
no waj^ rele>ant, both because Dnlus is not
libedled, and because t^ Dlttny bears that the
Kinel gate the piece dialleoged to niy Icird of
tbea of intsntiaa to be presented to bis nia-
jcity ! whereby die innocency of his intention
a evidenced, ^ad of his acceuioa in bavitig or
ihTulgiiig tbe piece aforesaid, sinca he was so
far from thinking the piece iojurious to his
majesty, in that he bad ventured by my k)id
Ratfaes's means, not only to scqnunt his ma-
JEbiy therewith, but to present it as a lit ap(>-
logy to bis m'sjestj; as is acknowledged by tbe
dittaj, wbicb *e accept io ihut part.
It is fardef alled|:ed fur tlie I'annd^ That the
hearing, having, and not reporting, is not re-
levant til infer a concealing after the panne)*s
knowledge thn the king wai »ci;uainterf there-
vitb, becaoN ' Gvlamul taim qui igoont,' lej. 1,
VOL. III.
F. (te Aciionibua e
« act of parlia
And the
why
tbe rcporttsgis irijoinfd, is, that seditious uieee*
of that nature may ccnne to his majesty's kiion'-
Ifd^e. After whicti time, ttie paiinel iv:>s DOC
obliged la iniportui]e his mnjcsty witti super-
flaoui reports, seeing it is acknowledged by the
Dictny, that immediately it was deGvered bjr
him to my lord Rothes ; and so acquitted hi'
self of all that was incumbeat tf '
aapnt the point of revealing.
It ii likewise alledged lor iht Pannel, Tbat
the points of the alUdged Libel quarreUed as .
onlrageons to clinrchmen, or to noblemen, it
not relevant to infer the crime and pain of in-
famous Ubelling, because they are not chal-
lenged by tbe parties interested, and of tbe
law : ' Volenti non fit ip^nria, et injntin dissi-
■ mulaiione iboletur li quis deliquerit, et ad
' aiiimum non revocaverit.' Secondly, There ii
no act of parliament irrogating capita] puaiskr
meni upon the aothors of infamous Writii^,
reflecting against subjects, hut only a^osl
his miijesty's sacred penoo, estate and goyem-
It was thereafter alledged, under Protestation
ui tupra, by Mr. Jioger MotMl tbr the Panndj
That the Diltay is not relevant to infrr the pain
hbelled upon, because ane bumble sun plication
in name of a number of bis ntMesty's loyal sub-
jects, for removing of the prejudices which hjt
majesty had or mi^ht cnnceiTe i^inst them m
■upplicanli, and tor roncilintinc his majesty's
gracious liivour towards them, is not such ane
infarnoDS libel u falls under tho compass of tbe
acts of parliament upon which the snid Dittaj
is founded: but the supplicatiun quarreRed,
■ hereupon the pnnnel ts nccused quoad tcni^
and the rest of the said noblemen, ii an bum-
ble supplication in their names, us a number of
bis uisjrsty's most loyal subjects, to remove bis
majesty's prejudices, and to coneiltai: bit bi^h-
neis's ftvour; ergo no ^hmoas libel hllin*
within the compasa of these acts, quoad eat, an^
the pannel. Tha major is clear by the defini-
tion, nature, and qualities of ane in&mous and
scandalous libel, (where there muit be malign-
ing, detraction, and calumny), and by the de-
finition of an humble and submissive petition
and supplication, which diSe rs l^r from an in-
ftmous libel, and altogether lieterogeneous.
The assumption, viz. that tbe quarreired suj^
plication, whereupon the pannel is accused, ik.
an bumble petition to rrmore prejudice, and
to conciliat his majesty's gracious fiivour, ia
evinced in the said quarreltd aupplicarion it-
self, in the inscription, iu ^ Intention of the
supplicant ; and lastly, in the humble desire of
the lupplicntioo, nbich is the substance, life,
and quintessence of nil petitions: the intention
and end of the iupphcaats being the essence of
the petition, and the barsli nr bard expresiions
of the said quarrelled suppllcatinn (Iwing sub'
missile and modest in the inscription and de-
sire thereof, as said ig) cannot infer guiltinei^
against tha Pumel, who il not Author nor
8»
nGoo^^lc
637] STATE TRlAUiJ, IOChablejI. it,H.—'fhe l^-wiqf LordBalmerma, [6SS
Wriler ihtreof. And also any Peliuon, funnni
by a secrtiory, a lawyer, or a wrili-r, lo bu
given aiitl prisentcil to Ilia sncred mnji sty, (ereii
ibuugb tlie ilnure thereuf luight seeiii jusi) being
hard and Jitlicile, or coniaiiiing hisL (hnrsli)
eiprcsslojis imt easy lo tic undeibloud by etery
reader, shall itiler Kullthietis nut! fiunblinieiit ol*
deotli upon ilie bupplicanis muntioii Iberein,
who perchnncc muy be ibseiicout of that part
of the kingJuiu where the petllion waafuuiiiled.
'And iftbe haratiuess olsoroe eipretuioui, con-
tained in ihe i t'A quarrelled sup plica lion, can
infer the guiltiness litielled, and 'punishment of
death, upon [lu^ pannel, the supplication and
remouMrttnce umde nnd presented lo bis mnst
•acred majeiLy by > ^rcat many of the nobility,
vki then were atrnid nl the Urge extent uf his
majesty's laie rerocatiuii and reduction, would
likewi»e fall under ihe compass of <hesa acts of
parliament. But that supplicitiun and retnon-
Itrance was accepted by his rnynl majesty, nnd
his majesty was pleased with ic And since
the same has tended to his majesty's honour
and heiiefil, i)i the matters of surrender an-
nnily, and pUotation of the Kirks, with com-
petent stipends, the connexion is proven, be-
cause the humble- supjJication and remon-
ttrancewas no U^i expDstulatiw nor this, which
may be easily cleared by perusbg the said re-
monsiraiicc itself; ergu, kc.
It is answered by my I^rd Advocate, Ttiat
ihe lecnud ntlead^ance, and all the raembera
thereiif, and Additions made to it by the Pnn-
ought to be reprlled, *
ipect of the Uittay, which subsumes relevantly
-' - — ■" nrliameiit, word by wiinf,
■eived. And <rli
upon ibe twi-i acts of parliament, word b;
: beciiuse ii is conceived under the
fur:ii of a supplication, and cnncains not lu-
• fasiitiio or inJHrinjn, but tends lo pacify his ma-
jesty, whom the supplicants supposed to b'e
olTiiiilcil ; niufthal it cnutains nothing ■ posi-
' liib vel euunclntiii circa vcium vel fulstim,
* tnl-vii pi'Stuliiti circa bonum vel mHluni.'
And -liktwise where it i« alledged that ihe
D-ttav is n*]t rt-ltvant, iliere beiug oolhiit<; li-
belled t'l infer the libel iprirrelled to be ^i-
lii>iis, and thut the pamiel knew the SMme to
be Fcriitioiii; and that there is no Dolus li-
belled : it is answered, That all iliese iillend-
EKces ouehi to be repellr<l in rrspect i.l the
tt.iv, wliirh is .qunlilied accordin); to ihe (]ua-
lificntiou of the acts of partinment. And the
(lebi:: nation of a .-.upplicatirin altws not tlie nit-
turv of the libel in .tlie points where it it chul-
Icngedn- repionrhful and scandalous; but these
pnmtsbeinjcof iheirown nature scnudaloiis and
seditious, ciiniiit be excused under the
'pretence »fa sujiplie^ti'in, especintly where the
rcproai hes ari? emitted against his majesty's
Mcrcd peison : ' Quia in miiiimn puUntione
' sacre < t supremis majestniis nulla admitcitur
' cKi'usuliri, ut ait Iloroudus,' lib. 8, de I.ii)elli9
' defamatoriis; taata eit airocitas libellotum
' IHmosorinn ; et imperatnr Auaauus Lhelln*
' famoios ill principtm ttactaverit sub specie
' Ixsc najestalis.', EC cital. Cicerouem. Lb. 4,
de Republica, ' ubi ait nowr« duoilecioi tabuls
' run) per paucas res capite sancivissent in his,
' hniic prxcipue lanciendam putuverunt, si quis
' hoc lentaviiset site caimeii cuinlidiMiet quud
' iufaniiaui facere tl:igitiumvc>altrri ; et mulio
' magis ubi quis modt-stiK iiesciiis, et pudoris
' igiiarus, improiio pvtulauiique stylo sacns
' majestatis numen crediderit lacessendum.'
And this crime is so odiuus and beiuous that
there needs no dolus to be libelled, juin dolut
praiuinUur. And for the culourioe; of tb»
supplication, ii is altoKeiber impertinent ; be-
cause that wnuld einde tlie law, seeing vvcry
man who resolve:) to abuse the sactfd' person
of the s-ivereign prince, hiis it in his power to
give wh:it name be pleases to his .scandalous
and oduius conceptioui, whether to design tbeia
by ane episile, by anc history, by a petition, by
'nonition, and lastly, if he p>e»fies, by a
;o cover his crime under the inask of
And fur supplications, ibe Iut is clear,
ilbeit they be offered to the tupreqio
prince, yet if titey contain a reproach and
scandal to a tpbject, ihey arc pnnished. Lege
npud I^ibinneiu, F. de Injuriij d famui-is 1j-
bellis, ^. sg, cujus hxc sunt verba ; ' Si quis
' libelln dicto principi tamain nliennm fuerit
inst'ctatu', leiictiir injuriarnni.' And there-
fore much mote, ivheie a subject dares presume
tn make oIFtr to hia sovereign lr<rd ofa >uppli-'
calion ; and in it presume to tax ur reproach
his majesty's person, his gestures, bis Speeches,
his promises in hit supreme pa/liament, nnd tn
lay aspersions upon his donous honour, ma-
jesty, and diEuitv; nhich, wiih Ibe rtstofiha
points of the Tibet, tliere repealed, ate as naanv
ofvravant qualiues to infer ihe atrocity of ihi*
infamous and acditioui libel. And fharma, in
bis SO Concil. num. 34, 35, 37, ard 62, dis-
putes at length lliis question, 'An sub specie
' vou libellus famosiis excusetur^' And con-
cludes, ' Quod quxsitus colnr ii^famis sub
' velaininc petiiioms mugis ugiiavat et injuriam
et nuimuni injuriandi.' And no man can be
iible to deny but ihe delinition of ane fiimiim
libel is niiist competent lo this particuUr case,
uhich is ' u!>i vel delictum, vel vitium, vd de-
' fertus iniptuprratur alien! persons.' And
not only one, but all these concur.ui the paiti-
culnr quoliScations contained in the diilay;
and of the law, ' Actus summit den ominationc id
' a potcntiori, pracipufe in actu niixio.' And
reail this infamous libel, it shall be found in the
strain of it, and tlic must powerful piiiitiont,
to aim still at bis majesty's person, estate, and
government; which are so much more inex-
cusable, ihst thry «er« needless ; and not
nnly needless, but contrary aii<l destructive of
the narration and cimclusion, which seems [«
tend for paci^ing his sacred majesty. For if
the purpose of thesupplicanlshad been to uro-
pitiut his majesty, ihrir sorrow and grief for
his majesty's supposed offence, and an humble
deprecation of lus majesty's wrath, had been fil
029]
STATB TEIAl^, IOCiuk-mI. IQ3*.— for a Libel,
t630
tiod oMful menns to procure ttwir wiriierf de-
»ire: bulin place of rhesp,tocHterirrever«Qtl;
■■uloQtngrauglj upon thegesturpofilie prince,
upon his nets nnd Keitnres in pBrliunenl. uimn
the censuring nnd inisconstniiuG i>f his procfed-
ingi, and dniwing tiie Imil hody or tfic esiau
under ihe nsperii; and atrocil}' of i)i?ir sedi-
tious speeches ; it is n (hiagwithout example.
And where it is.tilled)(ed, That tlii* ppttiiun
was presented to his majeriy bv ilie carl of
" "' s therein, i( was
it is anmered.
Rothes ; and il
removed by dis^tmuhitibn
That dissimulntiiin never n>moi'e» injurv, but
upon preceding knnurlrdge. But there is no
notice ttiereof to liis inmesiy, because refiispd ;
and, -aa I ■in credibly informed by these wlio
have heard it nut ofhi* sacred ii»J city's most
in-Bcious nionth, his majesty has declnrcH ihat
liii muesly remembers nell the lime that llie
eariufRorhps mnde offer of thwt supplication
lo bis mnjesiy ; and tbst his majestv's Answer
to liim nag, ' My lord, ye know wbiic it fit lo
' yon 10 represent, nnd I know what it filto me
' to bear and consider j and therefore dii, or
' du not upon your peril.' And the circum-
stance of preseni ing to his majesty can hare nu
place to cifnuBt, but rather to n^ravat ilie
crime; because the pannel in liis own depo-
sitions has declared, that nfter rending thereof
by the earl of Roilies and him, Jt was thought
of such ■ strain as was not to be represenird
to his majestv ; and ilierefore the reprefeniioE,
alter it WHS disailoweil, increnses the udVnce.
And where it is alledged, if his luaieBty had re-
ceived it, tliat no crime nor punSsfinient might
Jiave been inferred against the presenter; it is
formally contniir, in rt^pect of ihe odions and
■ediiious conception Ihrrcol^ which would linve
deserved the pimithmeol of law in greater mea-
anre : in respect wlKrrnr, the snid hail nllejdg-
nnces ought to be rej)vUt-d.
It is duplycd by Mr. Alexander Pearina for
tbe Pannel, That where it is replyed hv uiy
Lttrd AdcocAte, that the alledged anil infninous
Libel, though under the title and firm of Sup-
plication, yet the some lieinj; indeed scnndnlous
nnd reproachful, that it cannnt escape under
tbst cover: it is answered, Thni the alledged
libel cannot be thought scandalous, guanHtup-
plieanie*, neither doth it aflinn the particulars
iiheltea by the Diitny etna hoe in t «oa habent-,
beiiH a supplication which of its own nalun
speaks not bat ns it seeks, and no more llian t'
seeks : and whatever reasons of nintlvis i'
proports to persuade, it ends in a humble re
<|Uest fnr a gracious ansiver from hii majesty
that it cannot be said to BtSnu directly, wblcti
ane infamous Uljel of its own nature requires
dicttt lege unica codire de fnmoiU libellii. Tli
words Dl' the law is, ' si ejusmodi nssertionibiiB
'sides veri npitolnta nnn.sit:' Therefore re-
quires BSFcrttons direct, which is not in tlie al-
ledi;ed tibel : but proports rensui^s and motive*,
laying out the iHine to the view and consider-
ation of his majcsly,if thereby graciously and
fevoambly it may obtain its desire. Where it
B replied by my Lord Advocai, That dolta
eeds not be lilirlled, ' Quia delictum et tnju^
lia- prasomitur factn animo injiinandi rt sic
dolose;' it is answerpd, ThBt giving nnd not
granting the sntue, ' Injuria prlcsumiiur uniino
' injuriandi in dubio tuniitni, tt nisi ptohetur
contrnrium.' Clar. ^ Injurin, num. IT. But
to tlic prisfnt rnse it ■:> by Ihe ninst evident
presumptii>ns, above reheirsed in the defences
made for ihe pnnnd clearly niaiii tested, that
9 no mind in the ^supplicants and
ennel of injurv or urong j tberrlbrp rannot
presumed loliuve oirtred any injurious and
scandnloiis Libel to bis mnjestv, or done aitj
tiling thereani-nt with thit mind.
And where it is replied l>y my Lord Advocat,
That if ilie siipplicantt hvid a purpoM ofdepre-
liii)! his majesty's offence, and iiiiieaiing liis
uj isly's grucious favour, they had made choice
id use III lit means to come to Ihat end, and
>t by tcandidoua tpeakin^ or reproiirhiiig :
It IS au-iwerftt, VV hat titter mfans can u snp-
Elicnnt use for iiilrenting of I'uvuur, tlitin by
uinbte supplication f And that «hichmy Lord
Advncst c<ills scnndMlotis reproaches m tlie
nlledged Libel, is grievances and rfxnonstruDces
Iheftof, humbly presented to his iitQie>ty, and
not as<^ertive reproaches, lit tapra. And wher«
it is alledged, That d>s»imulBtion removes not
injury, but upon preceding kntiwledgc ; and that
his oiajesty did not redd nor luke to conud«-a-
tjoii ihe supolicniion fbresiiid preseiiiirf : it is
answered, Tliat [lie 'Uppliciition oHf red to hii
majesty, althouiih his majesty took not the
same to consideration, seems to nssever the
nature of the writing to be a Supplication, and
was n great inducement to the supplicants to
tirink that his majef^ had passed nil offence
thereof conceived. And where it is alleilped
by mj Lord Advocat upon tlie pannel't depo-
sition, whermi it is nlledseil (hat llie Paiiiiel
and the earl iif Itothes togcOier, n'ter the rend-
ing the supplication ; thanghi it nol lit llidt it
sh.>uld be presenteil lo liis niajcly ; it is nii-
sneted, That the Pannerso'lcigi-d de(WMitioa
proports not the earl of Hiitbts and his toge-
ther reading of llie supplication ; lite us it is
of truth, tluit the suid supplicution wns offered
to his majesty by the carl of Itothes, hpfore tho
Honncraiid lie enri of Itothes hud nny thoughts
or purpose. of suppressing ol it: nnd howso-
evw the pannel had liud once a mind of sup-
pre»ring the same, yet lie thereafter knouiiig
tliat it was indeed offVrottM his majesty, "as a
greit iodacemtnt to the Paniicl to esteem and
think of it ai anesupplicuiion.
It is further duplyid byMr. JhAb Kiiftrl, for
thePnuDel: Where it is replved by my I.otd
Advocdt, That it is ^ubsuineil rcltiantly, and
the Diltay is qunliBed HCCordmK lo the qimlifi-
cetions in the ncis of pailiument; That dole
being esieittiilly requiiod in uU actiims of injuiyi
albeit acts of parlinment, by >eftsoti of their
shortness, are not >pecifick in the expression
thereof; they must l<e interpret conlurm to the
common sU-H in i>f Inu, ' Quia in statulis picna-
' libos nliquid delictum capiialiter, eiiani^i quod
' de dolo noD fial oieatio, dolus re<juiritur, at
iSlJ STATE imALS, 10 CaAKLtsL lUi.—IlKTtuitif LardBalmerma, {6B|
'non toffidt latm cdpa.' Pbar. Quost. && oftbt pcnoaii)j«red, bciii| Mcwandiwvcttj,
Num. U, tj. ' pru 4iut ojuuione citat et quaia the Iiki adducctl cooviiicci Uie odiogiBCH gf
* plurci docbtre*, qoi wunt »e liberane alujiMM
' a paaa moitii, et mh nente leiMiulum td
* caafutioncDi judicum impcTacoium, ijui cre>
' dont ■«[■ case recedeaduni a Teriiii stHtuti : et
' «il^(ingii,' num. 37. Ibid. ' Mtilio nuigiicuiii
* lULtutHiB inponit }iiBnam pro to quod de jure
' oammuni nun punuui'.' As ihe prewot caoe,
tlie poioU of not reporting and not apprcbend-
iog, mc punisbable by no otber law in the world ;
and that tlia unistrousiwt* of the iaientioD it
aeceatMj to be libelled, it it coniiitent «ith
TeisoiijbeousetbecriinrcDiiutu tbcreof; ' Et
' ideo<4>[>rtet poDwein Jibeilo,faiaDonpn>bat
' boc es£e quod aliquando coutingit abraic'
CodisedeProbat'onibuiLry.Neqi aitbepro
cent case. A teditioiu oaoceaJ>B( or lianiig, ii
not releva&ily Libelled bj ibe haTiiw of a piece
alled^ed seditious beciuie a mnii majr ba«e a
fcditious piece, aud jet not be a leditioiu <
cetder, becaiue he maj be of opiniua that
not kediiiinM. And it were hatd in law or
Mao, upon ibe error* of opioioB, to iafer tbe
guik «f so.atrockuw a crime, which, a« all
cnina^ reqiiirea aae eifrew coomm. And bj
the lav, • Nihil eat tam contraiiuin conieaiut
' tguan error,' F. 4e Jwiialictione o«
diciua leg. < u per eirorem et erraa
' eat voJuDlas,' Cedke de Jurti, et Fadi Ig(w-
xhe ailed^ Ijbel, it it duplved, thttt the desig-
nation of the ierewid lib^, joiBcd with the
MrainaBd fashion of it, viudicatoa the Pasnel'i
iBaoc«tic; in the ceaceiviufi aud usiag of it,
because it would appear to may maa to be a
Wpplicaiion, and not an infamous libel, seeing
it IS addressed to his msjestv, whoM royal and
eaoessiTe ijeudnes* escJudes all prssuinptiiH) of
injury, and nf the law. ' Subditl contra (trinci-
' pem suum fiaudem comiaitti voluisse non ptx-
' suiuitur.' Menoch.concil,404.nuiB.97. Cta-
vetlB concil. 30B- num. 6. It beginnetb at ane
tumble supplication of Jjii m^eitj, and corr-
cludeth with a hopeful assurance, that his ma-
jesty will lisieti therein : And therefore, ' cum
'ciordinepnucipii interpretemuriidairt.' Bal-
dusin I^g.quintaCodicedeCammitsis. 'AJul-
• to magis ex pHncipio et fine reliqua inter.pM-
' tanda suet ; et ea extieaiis media pmMmun-
' tur.' Menach. de Prswumptionibus, lib, 6,
•St contains ample elogie* of hit muesty's royal
gouduesa, and justice of liig Uessef father and
•beir predecessor!. ' £t ideo verba debent in-
* telligi de actu unifbtmi, nan difformi ; id est,
' onirormiiur in laudent, et decus, et non pnr-
' tim in iaudem,pBriimin vituperiuTD.' Craiot-
ta concil, 9. num. S7. ' etvatbn debent poti us
' unpropriari et intetli^fi tacunduin Actionem
' Juris, deliotum fugiator.' Ibid, et Pbam.
.Quest. 105. So tbat it is clear, that tbe sup-
.fJicatioo pnnies.Dot a naked and transparent
veil of designation, but probable grounds result-'
ing upon tlie strain of the picoe Uaelf. WliereM
«>y l«td AdvMM .^ggmratei the icifcunutuoe
DOttour; bat euenasu tbi
presurnption, tbat ibaPaiiBcl tbouU have beta
tainted tberawitti, because so sacrik^ous a
rriuie is not prestiroed : ' et maiiiac pctulau
■ ct itDpFobnm meiuiBciDin,' coBviacei aot ant
iojuiiuus ioteution luaiiiM a ptioce. And ths
emperon hare left place to prove tbe caBdaroT
intention, riotwiibstanding dte noet express awl
lamal injuries of words. Le^. unica CmIkc,
' Si quis iroperatori malediicnt.' . And where
it is repljed by my Lord Adviicat, that d»lt k '
presumed; it it duplyed, ' Quod aniouMigja-
' risodi non pnetuuiitur ; et inciunbit iajuriate
' eum prebare,' Jacubm de Belie Visu, lib. L
cap. 3. ' Actor bahet oecMMiioiD poaefc it
■ liiello ouod aniDuii itysriandi toIercessenL'
And aJ the Pretotian edicts requite tbrmaliy
dolum Kiaiuat, F. de servo corrupte, lib. S. et
edicts ai coatra cornHnpS|B ten albuui,F. tbie-
risdictione onuiun Judicum. Lei. 7. | Doli
Mali. Edictum de vi publicfi, qui I>ob> Mulo^ t,
ad Lefein Xulisn d< vi pubJica, Leg. 10. E^ia
Crimiue Uajsstatis ad L^. Juliam M^ettalis.
' £t cessat Dolus .quia ouu pr«siuiuliir,' X4
Doluui, Codies de OoJo Pbarm. Quett. 106,
luspectiane 3. et 191. Jb libellodeheteipnB^
■ Quod Xujnnsot aainM iajufiandi &cerJi.qwsD>
■doai . . ..
' andi anissus non pnesumitiir.' iiabcrliis ia
L^. si nen cooi-itii Codioe de Injarii^ sujd. t.
■distinguit utmuiisquiiajnriamMciMedicatHri
' talis tit persoiia ((ui praanmptiooea injaiiic
' fBciatcestHE^anvceo talis qui nonfacit.' A«d
far moK >»hen clw person that is iojwed cw-
cut* to eicludc IM presun^tioo of injwy.
' Priilc^>saui tianscMtdil omnem i<ij«iitss»-
' tun) et aOeclum.' Cravet. oonciL 0. ' EOM
Judnus oon pnesuiniiur alt^uid diaiise ad iii>
'juf
Ti Cbrii
s r^yed by Mf L^rd Adfocat,
igaatina of* supplicatioo 4><hM
Wher«*t it
Tbat if (he Aet
beadinitted ti , . ^
theJowwi^uld t>e .eluded,' Qti«Estio colore iab-
■ mix sub vrluoiae petitioois;' itisduplyd,
Thtit the iooooieoijeuc* cannot be obuvaed n
lliisi im.lwiiniii ilii Mil jiiseiinniTina»nf-r*-
cenic* will not be concurreat.
Where it is teplyed by my Land Mnoot,
That the iapudaoi firasimiption io psostupngt
piece of that strain to bis sncrfd tn^MMy, sggi»
vatea tbe Clime; it isdufi^e.). That ihecit*-
tioo adduced by my i^td Adv<¥;ai; Hff^''^
only tlie iaSeiilien,' etaninuuo i^junaolii'^bes
it is constant ; but infeebles the ftt»vm^i^
That noblemen of tlveir quality «pd »«|ado»
sluiuld bane adreBtorcd to present » <>MCe IW
th^ thuughtofihatnauiK; seeiqgitosAiWt W
ftEesiuned, that ihey >twuld bu« tJiMthtJ^
' oDme of H sufipliicati<ia weald ,b»r« saU**^
ibid«d Hie kinK'«insje«ty's«wacity,Md««K
them to eschew due puni^bnienf. .
Tbe load Jtistkc-Geaertri aafitiMM W
lurt till TMsday acM the fltii. M •«*'
itme, when it wac jwplyiad by my J^"* **^?2
tie ia* tlay of tjie jwx»ii fpw the Iw. ' **•
8TATE TOIAI^/ 10 Cbarl*) I. 1634.— /or a Libel.
quod fiicTit pMitnf
r«M
■ K^wd LabioiMm,' ihu tbt nmnre of atediti-
oa* or iniiMnous libel u not conpatibtc witb
the prtseouog lo hit majattf , * Quia libellu*
■ poUot dvc pridcipi, ct nituloiBiiiiu Id eo fun*
■ alieuft UiceMU:'
It ia ai yet dupljred thereto by tbe Mtd Mr.
jMka HiiUI for the PaoD^l, That the Ca«e
A'sd it hu Qsver been beard tbal aa; bai beta
ta mcoiwderate w to preacnc hit own Ditt*y
Wdcicw it i* rcplyed by my Lord Adrocat,
TbU the iBOCt of (ha alledged tibrl adduced by
1 enforcs their iatention in
<it*ty, it inipertineot and c'
aucJtttion iuelf; iod Uie
fur«, ' DenomiDatio tumanda tit a potantiore,
' prsoqua in actu mixiu :'
it ia aup\f«d, Tbat is law vordi desimcttTa
of a ProUKwiop, ' Kelevantur p«r Drotasta-
* linnem (tcAI gratia.') Tbe wwd ' Mentiha,
' lalvo hanore, ti wbietiant conjetturc per
' qua«taliiprot>MatioadJiivarctar,quod>cilieet
' HOIeataDB aoa habeiYt anlmiini iiiiuriaudi.'
Clarua, ^. bynria, num. 13, And albeit in nut-
ter of notioi) and funn, ■ Condmio Mquitor
* (teccrioraa partem tyUufiami,' yet in praelico
^flUgunte, lb* cODcluuDn being * the T« mfiu-
* •«*, tr«»Hnittit ab iDtallectu practiw,' to b«
MpoMsd and embraced bv ihe will, ia idikc
VoMiderabJe ; and tbe impetUneiKS of MidK*
nic4 to eafurce tbe (fup*, i« aclinowladged b;
■U noraliat* to be an wcape of imprudeocy jo
tW pr»«UGti»n, and not of gailc in tbr iat«n>
tipB- Ai>d wh^ms my Iprd adTocat conccnda,
« Quod d«soBuiM<ii>iu<neDda fata potantiori;'
it ia asiwered, piod txprtua tlogia arc more
pDwwAil (ban itiairied cpiueqiieDce*. And aa
CKprtai Mipplicatian cotuained in the hail strain
4>f itie piacc) ilMild prtponderaic aome itici,
ilmt glaocc : ■ Ed quando verba iujariow noq
* faincipaliunr. «ed in cvnccquentiam prajata
' MM, cttBitt quando ivot de |ua natura in)(ir
' tioia' <aa ia not in tbw p<Ment cate) • praHI^
'■•nWwrifiCta vet acriptK line ^ino iinunuidi.'
Mar. CoDc. laj. nun. 10.
Whitacaa it ia rrplyrd by my Lord Advoca^
IWt iW detiDitioa of the iofsmnos Iib«l, i*
itpadnot acainit the piece qutirelled :
)t il ^apTyed, Thai albeit a peace, ■ ubj d«-
< bolpi* *« Titium rcl dcfeclus impFoptfrstur
' tiiw,' ba mMeriatly inbranui ; yet (brpially
Mid in relattoD lo a guilt end a crime, 4i>li"PVr
U$n peccMarily reqairpd, ta an eawotial ingre-
4i«H IB tha dafiMtknt if a» is&nuw* libfl.
Hamhawdititti in practKil, c»p. ISg. Rum. ].
' 3enpUB fit Iqivns «■"> i^vtvai at maljcin^
« (antiluuulH, niuhai
ntii t' fw*; et libellu
. . _..• &ift# i.n «cripM ijj ii»-
'fifiuM* ultniiai, i^w m°i ifi* pn>b«r« ttop
' mk, m in wmiwjaicMt- rri in J«pp ubi iwo-
'■iatw.' PW.ftdiw. jpi-Ia»p«n.mEw.i.
' « ad Mwwim liWU fuHw lidttw /«wiiH,
pgblicOfTtf loco uhi io.
■ veniacur. mia. num..*K>, et Caaonc, Caua.
6. QaaM. 1. • Qui in alierius famam public*
' scripCummaut verba coiitiinietiaMCOQanser>li
' Qagelletur.' And albeit in luw ■caluiQiiiah'
materially ' est blsa wimina intendBre,' ad
Senatna Coainhum, Turpiliantm, Leg 1. J. 1.
navathelcM. ' doq niique qui hod prubtu quo4
< intendit protin«t videiar caliuoniaii, nam t^of
' reiinqatiitio atbilriocugniMctDtiaBOmmiltitur,
■ qui rco abaoluto de acciustoria coociliit iocipit
' qiu!t«re IJua meiite ductiu ad accuaitiionen)
' proc«aMrit,' F. ad Senain* Coaaulttun, Tuir
pilianum, lig. 1.
Wlwte it i* replyed. That the prewnting af
sucb a piece aggravate* the crime, and ili«
odioui coDC^ticn thereof i* fJuniiliaUe not>
witbacandiag thapreKntation; it iidujilytdfor
tbe Panoal, Thnc tbe preienting of it by vt
worthy a nobleman put the paQQel, in hauafidt,
to think it not a piece of tuat nature whereof
piece
it ia alledged to be, and
to roiataka the odiouineaa gf the pooception of
it,if thare be any.
It ia eiked (added) by Mr. A«kr( ^(aegiil
for iha Funnel, witb ProieMaiion, as Mt down
&om the beginning, not repeating ib»t wbicb I
have aairl ■ but timitting tbe moat hoaoursbla
and wise Judgea (quia m«itm at pramtmita)
to theae thinoa act down belure by me, touching
every particoiar, ai ibey have beeo wurtivlj ra>
plyed by my Lord AdiQCftt.
A ad Brst, auent the Qualification conlaiocd
in the acta of paHiamant,
]t ia anawared fint, That the firtt act libellc4
is only ag8Jnatdela(ora,ai said it, and (apoundf
tbe act SS Jac. S. Pari. B- aa might ba cleared
by tbe time wherein 'lial art was alao madai
Out he rnpifa it to the conaidoation of tiif
Judgaa. Secondly, It ii aotwered. That 'het*
bnne no Qoalificaiion act duwn in thia firat act
f parliament, but a genf ral law, (bat gmcra)
ought 10 receire the qualificatiun accond
ing lo the distincioo pnipounded by n .
all humility, of iiionliiiaf Ipeecbfa against %
prinw. in the laat part of hit first »xception, u|
reipeci of the ub^urdiiy '•( lEk par>iy of Crimea,
uid paiai •hi'ih wnuld follnw, if it were not M
limited ■■ And ramiia, ri befure, to Gatiua, anent
M'e intmiretBiiofi of municipal lawa. An<)
wbat aball the geoBral rulaa of tbf law (mifr
palled by aonie E«giil» I.cahic> rscflivt ibfit
own eiceptii.na «rE«rdmg(o rwaoq; and tbf
municioal lawi, wbicb atan in tba mott aqlir
ti»aa»l pijiofa of (he aQnimoa»eal, Bill alter
^ree or (bur timra in an iig«, according to th«
cirrvmttanc*! (amn V vviit" '■gMj! •bsXt
(hev, s»j I, atand good in a genftnl tfnsB cort
trai V t" KBMn ' which I conntio ha thajudft*
ntcM nf the lawyera. Sec in l^a li^at foxi pf
mi Puply, airaoilbc"!'* my first ciceptii^a j
where (t m ahewu tbKt the «qr(} * gpvan){peni,'
in ike )a*ah act, aqd to in thi? i9t, ought not
to be ^ndentood hip<(b«( MMtacUoif and for(j»
of parliament : Whicli ia followed fiVl Iaw't
i» my aepoftd nvplion, and w tivght not to
bf PwEiritMd w Mif Mbv vi, WJmlit *ima
<SS] STATE TRIAI^, 10 Chablzs I. \GU.—7%t'D-ialtirLordBalmemo,
e«DtrBveeaen, «b«re tliejhad oplimitm an'imum,
nnd according ro their opiniun only might be
thought to lime erred, jned h'ltnanuni esl, ns
nui a'tfd^d by Mr. John Niibet ; ' Nef^ue id
* prins quam rationis ad leritatem eliciendaio
* inter se conftigant.'
"The Second is nnent the colour or miuk of
Supplintton ; remits that to the pnictic9 al-
kc^ed by Mr, Joha Nisbrt out of tbe Con>'Ul-
lai of Menochiut touching gmernoiGnt. set
down 50 rudely, u( ti( addita lupplitatio, t\Dii
■9 it nere, dropped out of thegall of bitterness.
And yet notwiihsiandirvg the lawyers verdict
was to absolve tbe nobiemao. Remits also to
tbe iBbt part of my first eicoption in the end,
anent the exposition of words aod sentences,
taught likewise in the second exception, and
Btient the form of speaking and prayer, espe-
cially wbere ' contra prxsumptioneni doti.' It
is cleurly evinced that [be pannel hail n>>t
' animom dolosom,' but rather a very good '
win and iatenlinn, which he, as we sny in a
rrorerb, wislies most humbly might he taken
in part of payment. And remits ihnt onent
presumption of llole, which tay Lord Advocnt
said in the fourth place to my spcoiid eicpp-
linn, pm-tn seeuniia, That whe'thifr it be neces-
lar to libel, or not, yet seeing it is, ' He sub-
' staniia delicti, ct credulitas a cautn sive in-
< iusta eicuset a delicto, qiiia abest animus de-
* linqneiidi,' as Claras has there alledged, erga,
to he nfsoiliied as author, &c.
And to the Third, adduced by my Lord Ad-
vocac, sQeot the definition of an inramiiiis Li-
bel, and the punishment of injurieii ni^^inst
prifnte persons, and far more against princes;
we disallow alloBcdier such inordinniet.pei;ches,
and sny. That they ought to he punisheil ns the
lawyers liatfl defined accordiiie to the mind of
the speaker or penner. Bui that the definition
of an infamous liliel cannot agree herein, k> ^r
OS coiKerrt* the pannel, ii is not to be thought ;
' quia direct!* et conceptis rerbi*, maliciose et
' perdititsimo animi^' most injuries be impro-
|)nat; Which, in all humility, the pannel,
thinks npt to be here ; and remits to my se-
cond eiception. And that a i?apital pain
ought to be inflicted upon all sort of inordinnte
speeches or writings, and all sorts of speakers
and writers, and upon the havers, hearere. antl
not reveulers, indistinctly, even agaiast princes ;
lei me say it, with all reverence, as ray Lord
Advocnt would insinoate by tlie places adduc-
ed, it is not the hiwyers mind.
Tlia Fifth, alledged by niv Lord Advoeat,
goes back again upon an alledged disguising.
But we deny that any thing adduced eiiher
anent supplicatina or tow agrees with onr
case, where nothing can be sard to be impro-
perat dirtctti verbii (else the pannel bad Wn
«~mad mnn) : But b^ a wresting way, ialv6-
pace dixerim, niny be thought by some to infer
injury. And here again remits to these parrs
ot my exceptions, ut lupra, anent tbe expoii-
lion of woras.
The Siiib is anent our most sacred tova-
Ki|n tui refusal ; wherein renit* to that part
of my exception anent tbe appealing front ■
prince to himself, especially by a counsellor;
' Dunec intelligutur quid velit supplicnlii>, et
' rationes hinc inde addocta, quasi ei idiersa
■ acies raanum inter se conremnt.' As lo h\i
mnjesty's osvn (feclaration, the pnnnel scftl» his
mouth with the linger of HiTrpocrntes, tuid re-
verences his niBJesty's saying? as oraclts, and
m nil humility, accepts them ns an ackuoirleilg-
ment nf the ofier made.
The last, 1 think, are the Pannrl's own De-
positions ; nherein distinguish the disallotring
and the times and all tholl agree. Ue disjil-
Inired nf it first, as that of the general ; it nu
rejected by his most sacred majesty : Buliba
pi)nnel thought that it miiiht have been ketped
till a more couvenient time, according |n tbe
appellation also mentioned, and till raota aadi-
la it h^ been condemned. And the pannel
depones, That belbi^ ever the principal caioa
back, the copy was s'lirreptitioosly purcfaiised
by Mi, John Dunmure, in fidsifying his pro-
It is ttiplyed (r^plyed the third time) by mj
Lord Advoca', ih;it tlie duplies in the wlmte
Earts and members thereof are impertiaeitl;'
ccause the exception wa* founded upon tha
fbm and designation of the inlamous libel.
That being desi^neil a supplication, it cooH
not contain matter' of (uie inbniuus libri;
which exception wot answered with this replyj
That the Dittny is directly subsumed upon tli«
acts of parliaiiieiit, lii. That this, which they
call a supplication, is a writitig containing re^
pruaches and scundals aeoinat the persi>ti,
state, and goveminent of our gracious stue-
reien, as the Dittay bear^ ; and nu more wm
necetvirily to he replyed but upiin the acls of
parliament. And yet, for informing the mind
of the judge, it was cleared both Ipy theeipresi
text of ite civil law, and by the juil((menl of
the best jurists, and versed in criminals, Tlist
tbe designation purges not the in famous
speeches conceived in a supplication to the
prince, being to the infamy of ane subject,
much less lo thediibonour of the supreme and
sovereign prince. And this is not perlinendf
aniwtrcd liy no part of the duply ; but buli
tbe ncti of parliament and civil hi>T concurring,
stand in full force to elide the exception. And
the po in 1 8 urged by the duply, has nothing iri
do with the exception, hut are points eitrine-
ous, founded upon intenrion, libelling of Dole,
presumption in fevouis of the pannel, nnfl
others, in whose naiiie it was nlUdtted the s>id
SDpplication was drawn ujj ; which I may
justly term presumption : For whatsoever dil-
tinciion they have in their quality from olhtMi
it is from the bounty and favour of tlieir sih
preme prince and sovereign, who la the fijoit-
tain and source of all honour and dignity.
And good reason that they braik (enjny) all
their privileges, in aU causes with til persom,
except where they com* in eoniestatioii witn
their supreme sovereign : and there, as Godo-
phred writes, ' ad l^em Juliam majesttW,
' ubi migettu puliata, defenditar nnlU dipn-
STATE TRIAI^, ioCh^hlisL 1S31.
137} t
' tas; oallum ciili
' uis.' AtiU in ihis caie, wtierc /eptiuclies,
icauduls, unci aspenloDS atf luid upon o«r
Kraciuus Mvireign, (he Cfruae uf nobility, ttiat
K mny be pn^uined tlint they did it iii>[ muJo
onuHu, is r:itlier an accusaiiuii tbHii an excuse ;
becauic DO subject is so bound to know tiie
tnie lespect* of humiiity, and reverence,' ttnd
obedience due to the wveieigu prince, ns ihu&e
U> whom bis mBJestji hatli couiniunicaled u
shadon ofhisglonuu* homiur. And as to the
ionlance adduced out of Meitochius, we have
QOCIiing to do » ith it ; (or it is Idicly, be tbat
aiuitered io, had nut such a law as ne have.
And ns lu the iustunce adduced uut of Lex
Uuica> ' ai quis iinpeiulori iniiledixerit,' that
by thnt law there ix no place Icit to the nccuft-
- ed to purine hiaiself of bis evi[ intention, that is
true in ibe case uf the law, but lias iiolliing ado
iviih us, * ubi non est Iubric»in Irngus quod
• fucile ad pccuain iion est truhenduni j' btit a
malicious and se<Utioui wriiiiig, compiled of
purpose to the repronch ol' tbeir gracious sove-
reign. Aud iu writing of this kind, as Ha-
roiidus eipressrs in his 16th title, fol. 908,
there are no worse reproaches and cotnit'm
(says ht) than tlinse wliich are done b; writ-
ing, thau those which are'dotie upon manifest
deliberation; hccuuse the same proceeds upoii
ane evil and seditious purpoae, und piercei
deipty, and abides longer tlian the injury by
woidi. And Tur idl the rest. of ibe instances
and authorities iif the civil law, I oppoue the
tvi'u arts of purliaoientf wbicb are the only
grounds iif tins libel ; m so far as it concerns
the autboit of the inlauious libel, the nut ap-
prebendine the aulhora thereof, the concealing
■□(t not tevealirif; nfthc same. And as to the
mention mnde in ihe entry of ibeDiiiayof the
' cuiiuiiun and citil law, tlie same is wholly m
rc-pei't uf ibe dlvulf^ug and dispersing of tlie
saiU iufLUDous lilid, wlii-reof our said acis of
where we iiave our own luws, and arts of par-
liiiQient, as ue h^v? in this cose, the^e mu^t be
the only rule "fjud^ug. Anil the eireption
and duply, albeit thiy liare many quotaliiins of
the conimi<n biw, yet all needless and iiD|<eiti-
Dent : iincc they are nut adduced tu purge tlml
part of the Uitiay nhich is founded up"n the
conunon la$. But in the poi^itsdispuied, hi
have good warrund to adhere to our own act
of parliament, (except in s<i far ns we are fore
•d by the ohjectiuns miidc hy the pannel'a pro
curators tu clear the doubtful iind ambi^uou
tet^is of their exception and duply) liecausi
by act uf patllamtnt, made hy Idng James 1,
par, 3. cap. 48, and by ktnf; James 4, pai-. G,
cap. 79, It is statute aud nrdnined, That all
ibp leidges lie ^o> erned by the king's lanes, and
nootlieis. And bis majesty's A dVocat nffcr-,
wbenerer it shall please my Lord Justice Ge-
ueral la cnnimaixl h)^ to clear any speech
that is fouodeit up a the common law, tliat lie
aliall do the snmc by word.
Jt is quadruplieil (pleaded the fourth time)
by Mr. Aleiaudei Peanon, for tlie Pannel,
-for a Libel.
[C35
That -where my Lord Adiocat triplycs Bipart
of his lordships reply to haie received no an-
swer by tlie duplies made for the pannel ; to
wit, that part ibercnf, whiuli beats, that the
WTiting quarielled, alCliMigh in form and iitl»
u iuj:plicBlii)ii, ^et does contain repronchlul
speeclLes, &c. it is answered, Tliat the alledged
infamous libil, in to far us it concerns the pao-
^1, cannot be esieeineit hut as a supplicit-
>n, in respect of the duply and the reason*
ntained therein, nbich 1 need nut repeat
Where it is triplyed by my Lord Advi.cat,
That our Duply ;s iinpeiLinentj it is quadra-
plyed, Tfaat it there be any impertiuency, his
lordsliip is to be blamed iberevith, for having
occasioned it by ane uunecedsiry teply. And
for the poiols urged by us for tl>e pannet, to
clear his intention, and to vindicate him from
the presumption of injury, in compiUng or be*
■esBory to the piece quarrelled, ni. tex-
ts, both because tlie acts of pariiaintnt
intention, by ibe intentional words ' to
proarli, steering of sedition, Ac' Aud
albeit uiey thould contain nothing thereof, a
" rous intention being required in tlie es-
: of t!ie crime, it must necessarily have
libelled conform to the passages already
cited in our duply.
Whereas my Lord Advocat triplyed. That
the character of nobility accused nm eiciaat
in this case; it is quadruplyed. That that is
only where the crime is constant, (i. c. evi-
dent :) And that eminent quality ever wanta
the presumplinn, than any invested tiiereio
slioufd injure their sacred prince; whereof tiiey
are not only a sbadoiv, but noble and niyetical
members, us is cited alrendy.
Where it is triplyed by my Lord Advo(»(,
that tbe case adduced out orMen')chiu!i,is not -
pertinently adduced In re, because there was n»
law ; it is quadraplyed. That tbe quesiioif re- ■
suited upon tlie common law, wbicb ordains
due punishment upon the nuthurs of infamous
libels, and chiefly against princes. And the
case was not so pregnant in fiivuur of the parly
whom he absolves, because he was the author,
and had e:tposed lo the view of all the world
the piece there challenged. And we adhere to
tbe author's opinion ; and instances, how it
has never been found to be an unduiiful part
in juri^on&ults and adTncatc, to vindicate pieces
quarrelled to be injurious.
And where it istriplyeil bymjLord Advocat,
that the instance Lex t'nica quadrats not ; if ia
quadruplyed, Tliat tbe instance of the present
case i-- more pregnant, because tbe ca^e of the
law adduced, ' improbaet petulantinmandacia,'
arc challenged : And in the present case tlie
piece challenged 1 is not expressly injurious;
and uU that can be inferred upon tbe pannel,
is an indirect and imprudent accession tliertto.
And where it is tiiplycd bv my Lord Ad-
TocHt, that tbe allegations of ilie dupiv are im-
pertinent, because not allcdgcd for the points
of the coinrann Ian not expressed in the acts of
parlLiment; 'lis qu!idruplycd, That ih«re wg
ttf die Mid tapflioatioa 0r libel ;
the crime upon faim in tulidting hii fiitnis hj
his other lettera arid uiiuina, likewiEc pro-
duced [O tfae sard tordi of coiuiqitUe, to dcti
for porchtsioE and nblaining to bitn a remttuoa
for tlie (aid alledged crime. And so the wid
Mr. Wtliisia having noc only eonfetwd hinseir
to be tbe iiuchor, but hinng dealt itilb uid
BOlicited his snid friends for ■ reinissian, u
said is, the said dittair can aerer be latuuned
against the pannel as autbor and daristr
thereof; whicli missiTe letters are in the pvr-
suer'i own hand. Item, tbc said pantiel ooElit
likewise to be obsoUed from that part of ihi
utd dittaj, bearing to be consnlter, adtiw,
and ain and part of the penning, writing, and
drawing Dp of ibe said QuarreHBd liuT; be-
eaose the said two acts ot parliament, nbcn-
upon the said ditla; is tbunded, make no nen-
pariiament, ■pecially in
to be tskcu, and suffer
M9] STATETRIALS, toCiiASLssI. 16S4.— TV 7Wa/<^£W£a/>wrMo, [OW
■lU(^«d in our duplies for all, and refers onr-
iclf to our duplies.
To the whilk it b quintuplf ed (answered cbe
£IUi time) bj my Lord Adv»eat, That the
words of the act of parliament has no reipect
to the intention of the person, but oqIt express'
tbe effect of tbe reproaclies ivbicb teod to more
dislike betwiit hb majesif and his good sub-
jects, And It is granted in ibe qnadnipl^r bj
Mr. Jobn Nishet, That they are nmterially re-
proachful, and not tbrmall}'.
It is sexiuplyed by Mr. John Nisbat for tbe
. Paanel, that the words ' to the reproach,' im-
BJ dole and intentiun ; hecni^se the crime pn>-
bited bj cbe act dT parhement consists es-
KDtiallj thereof, and is cleared b; all the
aUeg'iCions adduced, nnd more expresslj by
ether acis of parliament M' that nature, as the
OUih act of igueen Mary, 6 Pari, whereof the
wunls are, * Tending to stir ibe hearts of the
subjects to hatred, which aW emphatically
word* of iotention. And whereas my Lord
AdrocBC would inforce an acknonledgment of
material injury in oar qDadrujjIy, we disclaim it,
and maintain that it cannot be evinced there-
with ; Bud albeit it were, there rests a relevant
defence in law upon the ianocency and can-
dour of intentioa.
Thirdly, It is alledged by Roger Mowat for
. tlie pannel, for a third principal Defence to
that part of tlie subsumption of the Ditiay,
ifualification)!, and condeicen dings thereof,
bearing that Cbe pannel himself was and is
author, de\'iser, consulter, adviser of tbe iti-
fttnous Libel, and airt and part of tbe penning,
vrriting, and updrawing chereof; at leust is
Kuilty of tbe henriaj;, and of the concealing,
and nut revenliiig the author thereof; and
most guilty of tbe not apprehending nf Mr.
William Hnig, vrhnm the pannel affirmed to he
the author of [be snid libel, it being'in his power
to hnvc Bppivbeuded liiin; and al«o is jcuilty
of the dirulging and dispersing thereof, in so
far as the aaid panni-l knew of the penniog uf
the snid libel, gave ^m opinion to the making
thereof, nod in token thereof interlined a part
of the same in diven parts with his own band,
which by ocular inspection is lo be seen, and
which the pannel has also confessed by hit de-
position under hii band, ai' the said Dittay in
that part bears, tec,
Thatthe Poiinel ought and should hetimpli-
citer Bssoilzed (absolved) therefrom ; And lit,
Hiat tbe said Papnfj cannot be criminally
Eursued as author and deviser of the said
libel ; because by the pannel's own deposition,
taken bjr the lords of the committee on the 9th
of June 1634, the pannel has deponed, that
the snid Mr. William Uaig was the author sf
the said libd. likeas tlie snid Mr. William
lijs missive letter, all written and snbscribed
•ith bis own hand, dnied at Campbire the 2Tth
day of tbe mid month of June, which letter
was directed to the pannel, and exhibiieil by
him before the s<iid commttcee, bears the sard
~ >. Willian his grant that he was thepenner
' ; and tidies
which is expressly set down therein. Idl;,
Giving, (granting) the said acts might be ei-
tended to consulters and advisen, (u Cbey
cannot) ^et abtolvilur ought likewise to be
granted trom tbe alledgad consulting and id-
visin]^ by tbe pannel, and his b^ng airt sod
part of the penning, writing, and drawing up «f
the said supplication now quarrelled ; becaoM
the said pannel being examined by tbe nid
eosunitcee upon tbe said 9lb of June last, and
being then interrocuC who was autbor snd
penner of the said libel, not only has deponed,
uf tupra, that it was (he stid Mr. William Msi|,
who gave the said libel to him, and nbo (es b*
thought) was the author thereof: but briif
■hereafter intetrogaC upon another interrogator
tbe same day, if tlic said Mr. William had any
command to draw op the said quarrelled n||-
ElicniioR or libei, or if thepennelor anyofbis
no<*let^, was at the furmini; thereof, tbe
panael has also deponed upon his snid great
oath to the said interrogators, that the siud
Mr. William Ha^ had no warrant from hiai,
nor knew he of any warrant given to the said
Mr. William, or that any was present at the
forming thereof. Which clearly evinces and
manifnts that the pannel was neither author,
devise-, consulter, adviser, nor airt and part of
tfae. penning and writine of tbi^aid tibsl;
seeing the said p«nnel being brfiaght helbit
the said committee, and urged by them to givs
his oath upon the said points, be baa givru tJ«
same, he has depotied, «t nipra, denyiog ^
the said several points. After the living t"
the which oath of verity, and subwribinr the
same, as the same produced by my Lord Ad-
vocBC bears, no dittay or pnrsail^ criminal or
civil, can now or herenfter be sustained »v^
the panne] upon these points, whereopon al'
ready he haa given bis said oath; because M
other manner of probation can be received
against him, (o prove contrair to bis said uaib,
given before the said conunitlee io aisnnff
afores«id. And where it is Ubelled in tbe laal
dittay, nnd qoalificadons thereof, that tte
pannel is author, cMisulEer, adviser, aiit ■■■
«*1I
SfTATE TBIALSi 10 CsMLti I. 1034.-/«-(i'i4M
part of (Ke ffart'uif^ ■nd wriling, hc the Imtt
goil^ of ibe heRrinj!, cuoccaluig, &c.
vuljng, not apprehending, &c, iu - '-
f««
It ii aUedged, That the pannel ought to be
^mplidter ibwlvetl froia the said quuliAcatiou
bbelled in these words, in 90 Tiir u Uio paonel
knew of Ike peanlog of ii, advised iind gave hii
opinion anciit the making of tbt: lame ; because
tbat is like*isa directl;^ contrair 10 the paonel'i
depoaitioo foRwid, proeeedisg upon the said
iateirogator, moved by tlie said committee
whenwith be was ioterrogat, if Mr. WillikiD
Uaig bndaBy warraDt or command from bimto
draw lip the said libel, and if the pennel, or
wtj ot hit knowledge, was at tlie forming
tlieno£ Whcreunto the pannel bos made
answer, and upon hit said great oath deponed.
That Mr. W. Haig had do warrant from him,
Docknew he of aiij given to hiiM, or that any
WW present at the rormiii^ thereof. And so
(be paoael bj bis depvsition, upon his said
•atl^ having deponed, tbat Mr. Wm. Uiig
Jtad no warrant Irom him, nor knew be of an)'
wvtmnt given to him, or that (iDj was present
U tiie forming thereof; the said criminal put-
soit (an never be suilaioed to infer thereby
tbu the paanel isUithor, consulier, deviser,
■rfviMT, eirt and part of tlie penning, wilting
•nd drawing up; because ibM is aluigelbet
denied by IM aaid pannel, as bis said depe-
(itiiiD .clearly bean. And being denied upon
bU great ootb, as said is, tbiit part cannot be
luatained upon the said qualification and infei^
eoce libelled 1 it beiu^ inpouible, par remm
Mmliiram, t]iat the said dittay in these points
can iMy way be proven by any other probation
■fb»iaoerer, after giving his said oath,
Conrt adjourned till to-rporrow the lOtb
Jnstant.
Inlrant. the said 10th da.T.
The pannel and procuialon (ai before) com-
peared the said dny.
^mrt«, It was alledged by Mr. Ropr Mmoal
for the Panitel, As (or b» fourih principal
Defence against tbat part of tin Dittuy, beor-
iof, tbat the paanel knew of the said alledged
iolamoos UbeJakdvised and gave his opinion to
tbe making of the same, and in bikeo thereof
intesliaed a pan thereof in divers parts with
his own band, as may be seen by ocular in-
•jpection, and as his Coofession in tbe depo-
aition beiars ; that aiuiailur should be granted
from that ymn, bearing that ibe pannel knew
«f tbe penning thereof, because tJial is directly
cotilrau' lo tbe pannel's deposition, before re-
peMad, wbididoeiconuin an eiptest denial
of bis knowledge of tbe Winning nf tbe said
libel, or that any was present at the forminK
thereof. And, to that pitrt of [be qualilicatiou
iihelted, bearing, that in toktn that the paanel
knew of the peuniug tberfaf, hc iatwMKda
««!.. Ilk
part nith bis own band ; it is alledfed, naJ/e'
woi/u releral, noless it had been nlevootlr
libelled iu tliedittay, iluttthe paunel interlined
the said lines the time of |he funning ofthegfiid
libel, or ihurtiy tliereafter, wliich is not said 1
for meniiing and iuterlining to be a tukei^
against tbe mender or intetbner uf a Kriling,
tbat be Liiew of the penning thereof, and gave
opinioii CO the making of the same, must Ofrr
cessariTy be libelled to have bceti at or imme-
diately after the writing of tbe same. Which
cannot be urged u^n the paanel in .tliis parti-
cular, because by his deposition, given (ipoit
the leih of June 1634, upon an inccrrogaior
ffherewilb fag was mieir^at, whether he had
interlined some lines in tbe said quarrelled sup-
plication,'which'was enhibiied by Kim befort
the lords of the committee, and whether he did
the same before he shewed it to Mr. John
Duninure, or to the earl of Rotbe*, has da-
poned, that the said ^r. Joha Dunmure never
saw the said interlined libel, but only the copy,
tvhich was cast iu the fire after tbe redelivefy
thereof; and deponed, that tbe said interlined
copy lying then before the s^d birds, and now
in ffly Lord Advocat his pursuer's haftds, was
that popy which was delivered by the pannd
to the earl of Rolhes,'hut was not interlined
until long after the earl of Rothes redelivered
the same ; and deponed, t'bat never one saw it
since tbe said ibierlinii^. And so it beingthat
copy which should have been presented to hil
majesty, and which was olTtred to be pre-
sented, it is nut likely mir prubnble, and wiifa
reason cannot be affirmed to have been imer-
lincd before the time of the said nffer of pre-
senting. And so the said interlined libel
cannot be counted a token (as the diitny bears)
of tbe pRnnel's knowlcilsc olthepenning of th«
said libel, and of his advifing and giving his
opinibu to the mnkinc thereff. Likeas, iii rti
•eerilale, the siiid*inie3ining wns after the said
Mr. John Dunmure was first questioned in
March last, by tbe space of nine months, or
thereby, after that tb£ said supplication' wM
offered to have been presented to his majesty.
And so a private interlining of tbe.aaid copy
by the panpel, by adding or mending some fevt '
words, which acilher in matter' nor fbni can
be quarrelled, being so long after the intended
offer thereof made tu his h^bnesa, cannot be a
token against tbe pannel, as is libelled, to
make him to have been upon the knowlei^ of
the penning, and to hare gtrcn his advice and
oo'iuion to tbe making tlnrcof ; jfoc atlento.
That tbe -said interlined copy was never seen
by BDf, but by himself, after the said interlin-
ing, which simply he produced the same to the
•aid committee, nhich in law he could never
have been compelled to do, if be bad expected
that any such advantage had been taken there-
upon to liis heavy prejudice. For (he paand
did never iear nor suspect tbat the said coso-
mittec would have desired or imluccd him to
hare eibibit and produced before tlicraa.:
paper, the production whereof mii^ have iat-.
ported no less to him llian tbe pn^Btiw of.tlia
U T
•tS] STATETRIAI^/IOChablmI. l6Si.~Tk: Trial )^ Lord Sahmim, . [m
couiGteatvm noti affidi:' Eadcn
jin. 4S. Iliptitus in f poMijiua
■]|fdg<^ cHnip, comniitted in (be ditlaj,
IDBke liin llierFb<r guilty xnd punisliible by
ticiith. And it a noirour that the paniiel i" '
U the laicjs lurds desire, produce ibe »mi
thnn, upon their promise that it should
msiiare the psnntl, sreiog in law he was i
t'ler obliged to produce my writing, nor lo
clare, nor to ffve hia obiIi upon any interrc^
ton demnnded of liim; iieilher wnuldhehave
done it, if he had known (as now in eipeiienci
Ite findb) that it might and would have brougli<
apnn him the said ulJed|ed crime and puni»h-
■leatofdcnlb.
It it added by Mr. Alrxntiirr Peiinon fur the
Panne), in Ibtiilicntioii nrthesuid fourth eiLcrp-
'linu pro)iauiided forthe Pannel: Fim, for that
pari iliereof, heurin:, That tlie pannel the 9ib
of June last drjiontd, upon his great oalli, that
Mr. Williuui Hnig 'had nu wairxnt of 'liiin for
drawing u)> of ihe said supplication, EUid tliat lie
knew.Dotbing uf the lunnuig tfaertuf ; that 1 be
pursuer cannot br hpard now upon that part of
■lie Dittay, to pursue the pannel, because of tlie
pnniiel's oath end deduction forcsnid, which
canhoc in law and rcnsun be called again
question; ' IV)pierjurisjurnrdireli)[ionem,<jiiod
■ specicm transuctiiinii coiiliiirt oiajoreEnque
' hibet luilbotiinu^i qnam nsjudicnta, et dato
'jurejurando, nou aliudqueriiurquninjutatum
' Bit.' Leg. 1, 3, et S. J 3. P. de Jurejurando,
Wliere it is alleilged by the Dittay, That b;; the
letters «ent hy Mr. Ilaig to the pnnnel, it is af-
firmed bj Mr. lln^ that he hiiil the allowance
of tlie paiinel to the inakin* and pentiing there-
of, nun rtlfCal, because Mr. Huig being author
and penner of the nllcdueU iiifHUioua libd, by
hit uwu grant in his niissice letter, dated 97
June, nnd also acknowledged so by the Dittay,
Mr. William Haig's dcclaratioii tbre^d (no
wayi gran ling the Kinie),CBn no » ays Ke re-
■pectcdjor haveforce against the pannel,' Quia
* dp jure snciui aut poriieeps critninia advcrsus
' iDCium lideni nou facit.' Leg. Quotiiam, Cod.
de I'estibui. Leg. Si Firiuoi, Cad. de Libetuti
Catisa.
It it alUdged by Mr. John Niibel. th^ lite
Ditta; ii bot relevant, in no far as it qudiliea the
pannel O be author of the piece chnileii^ by
the interlining thereof; becnuw the interlining
ill one point imlr, cuiiviuceth that he hath nut
been af.tbor of the rest. Secundo^ The inter-
lliiing bns no contingency with tlie point ehal-
Irneed, hut it a smoothing uf gome apparent
•brewdn(r.s in conception. ■ ^nil in a word, the
Dittay it no wavs lelevant in so [»t as it r|iinli-
fies any ai^restioii by the pannet's depi, jitions ;
became it it alfimied by the pannel, tliat he was
indue<d tn depmie, upon sMurance that he
fhoiild nothe eninnred. And of tlie law, < Coil-
' fetsio emanatatubtpeimpunliacisncjoiinpor-
• tat coiidemnnlionem ;' CIhtus, $ fli]>a. Quo^st.
»3. num.*. et 9. ' Uhi affert r,pinio»em Imo-
' Iz id usserentn e«se njuiorcm ;' Phann.
Quani. fll. num. 980. ■ Cimfesiio cmaneta tub
' pmmivsione tmpuniiatis non sntlicit ad con-
' tJMnnuiduBii, fiec in furo codKicntia nee coa-
num. 15.
It is answered by my I^ord Adverat, Thai tli*
exertions proponed agiiintt that pan o( ibt
Qiltay, bearing tlie pannel to be author, td-
fiser, consuller, devitet, and airt and pan of
the penning, »riiiu|[, and drawing ap of lite io-
ftmous libel, oui>bt to be repelled in the 1^3
(ueinben >bereo^
And first, nhere it is ulledged, that my brf
is not author, btcaiise tliat he has depontd tkt
Hnig is author, and Hatg by his letter btsgrant-
ed himself lo be author ; becsote that is aol a
defence, but a denial: for both Haig and the
pannel might be authon and contriteis of »
m&moos libel. And ibereftn* the Drttay in
this point ii relevant, and consequently niui
be put to the knowledge of ane assise, (juj)
befortf whom the probation and verification of
iheDittnyis tobeused; and before whwn it ii
ens^ lo shew nsd clear, that nfilher tlie pan-
nel 9 depoi-iiion can tiberat him, noryetHaiE'i
letter, who in the defence is eranted by tlie pro-
curators to be lociui rrim'iiii, And giriiiE
(graniine) the justice *ould take the dispat* af
this ti
hims«lti which i:
_ moment sljud in Haig's letfer, it nnti
be taken compltx ; for by the same ieiter he
aSirnis, that the pannel was advisfer of the slid
seditious libel.
And where it it alledged, that Deiriser, Coft-
suller, und Adviser, are not contained in tbi
acts of pnriiament whereupon lbs Dittay is
(bunded, nu^ht to be repelled in resptrt of iha
act of parliament of king Jajnes 6, bis mnJMtj'l
gracious faiher of eternal memory, pari. 19. c
151. wherein it is declared. That all ciimillal
libels shall contain the parties complaiaed npoa
to be airt nnd part of ti>e crimes libelled : nhicli
IS in ibis cnse p«r txpreaum libelted ; and ibr
words of adviser, coDiulter, deviser, KRf (ym^
nima et Sfuny^.
And where it it atledged, ibat the pannel m
his dtTrosition lias denied that be was eiiher »••
thor or adviser, that is a denial ut tupra, aid
pot a defence aiainst the relevancy. And nliere
it is alledgtid, iTiat the pannel havicig deponed
by oath, that no other probation can b« used
contra jutjurandmii ; it is answered. That it is
against nil law, reason, and cascom, tn op-
pone juguraitdum in erimiaaliiiu. For then
after examination by the judga, which is eiw
taken upon onth, no criminal -Jiould |iai* ibf
knowledge of ane aulze ; and it were n procln-
matton of oniversal impunity, if oath ihoald de-
termine tlie trinl.
But that which is ulledged by the pnnnel and
his procurators super jurrjarando, has only
place • in civilibut et in JarejuToiido delate per
' actorem,' wliirh cannot have anv respect ia
ibis ca»e. And it is nnttourN known, that An-
chindrine and Garrarie not onlv deiiy'd upon
oath, buf abode by the denial in I lie t'lrtareaixl
question ; nnd yel notwithstanding [heir nnih,
nnd demal by oaih, were put to the inowlrdf*
ofineiuwK', and GOQviOed. And (there it ■(
CU]
STATE TRULS, IOCbarluI. IGH—MaLOA
[«*
£■
•lledgcd, H^uiut the specification in the lihel of
(liisdnt piiiui of nuthor, ihui •knowledge, Hd-
*iuug, and iiitcrliitii)^ arc unt n-leiaat ; I de-
clare iliBi I odliere in tlie first place to [he ge-
neral EubsuiDpcioQ of the DiiCaj upon the act
of pnrlimaeot, wherehj it is Buhsumrtt that the
pauoel ii a utlMn-, adviser, consuUer, deviser,- and
nin and partof the seditious lii>el; and protest,
that notnithttaadiiig ofwhntsaever defence is
«r shall be propounded against tlie qualifica-
tioos, (albeit the same might he fouad relevant,
nrhjch cannot he in reason aodjustice) That the
•aid generai bliall past to the tnowledge of ane
assize, as relevant per w. Under whicli pro-
teaUUien, I proceed lo mnke noswar to the de-
fences uainu the quaUficatioDt.
And Dnt, where it is alledged that this clau'
•ule, beatiD^ the pannel knew pf tiie panning
of the uid scandalous iibel by Ua'm, and ad-
Tised and gave his opinion aoeot tJie making
tiiertofi (bat tJie samcii is coutrair to the pan-
., - — , ioipngnt not the
ntevauc; of tl« DitUy concerning (be qualifi-
cation, and therefore mu&t past to the know-
ledge of an nssiie. And as to the pannel's de-
-i», whether thej he confomi ot discon-
the tihel, nan est Aujui loci ; became
HEiuKi is (be Dittay founded" upoti them, nor
•re tlicy ustid by me a* putsuer, neitliM ■« a
part of the libel or proof of the liber.
And where it is alledjted, ibat that part of
thequabficntioQ aneut the pBunel's interhning is
not relevant, except it be oofidetcended quo
tempore interlinei^ if > va ipso actu vel statim
* pott actum;' it is answered, That this pan of
lbs qBalification ii Died joinily with the rbH.
And there is no netewity of condescending, he-
cnnte queamque tempore interlined, it. is a suf-
ficient evidence of the concourse, cooaent, and
advising to Haig, maker *t hereof ; especially in
respect it was druHu up' hy him, viz. Ilaig, in
name of the pannel, and others having interest
ill tliat writing, which is truly an infamous libel,
Mid termed in a alnislrouj notion by name of a
•opplication : Likeai the pannel his procurator
has in their second defence maititainsd ibis ac-
tiaa of law, Thui ' principium ct finis tanquam
' daoeitrema indudanl medium.* And there-
fore the pannel's knowledge, at the first imita-
tion of that infamous libel, and bis receiving the
aame from Haig immedintely after (he penning
thereof, and receiving lo he preteuted to be his
m^esty to their use who were alledged suppli-
canta, and the interlining thereof cipMf facto,
(albeit not inteilined before the delivery there-
of to the panueljisrelevant inlaw with the rest
of the iDembcn uf (he qkialiflcatioti per te, by
«nd attfiur (nver and above) the general, to sus-
tain th» Dittay,to make the pannel aulbor, ad-
viser, deviser, coiisulier, and airt and part of the
Eenning atid drawing up of the said inAunous
he] : specially seeing it will he constant (i. e.
evident) by (be depotitions, when tiie same shall
b« used before the assize, that the same was not
interlined longo infcrtiaUuaflerdrllfeiy thereof
hj Haig le the pannel, but TCiy ibortly aficr '
tempore gaaii continuo. And nhert it is at-
ledged, That this interlining was ant till after
nine mnnihs after the receipt I hereof from Haig,
iliat is not, or. cannot be verified, nor has no
used against the pannel, because it was never
delivered to Dunniure, nnr never shewn to any,
till ilic jKinnel prodnced it before (he coDimit>
tee, and it was pfuduced under promises that
it should not he u?ed to the pannel's prejudice;
and tliat the panuel was not obliged to nnswiir,
ncittier to have produced the same before tlie
cnminiltee i it U certain tlie committee urgod
nothing irom tlie pnnuel but by good warninc
and to ivliich the pannel was obl^ed (o answer
upon his altqiiancei and tlie denial to give ana .
•ns»er to his mujejty's coniiniMioners, who had
waniiut under his sacred band and seal, nhicb
nas e^biiiited to the panorl, would have infer-
red ngairiit the pimnel a more danjierous ctini*
than that he is now accused upon, by declining
of Ills niyesly'sjudgoieui, nnd of his mHJetty'*
commissionera. And fur tlie commiitee, tbey
urged nothing fr«iD (lief anuel but a plain, true,
sincere, and speedy declaration of hia knon-.
ledge of (lie author nnd coniricet of the said
icanduhius libel, nhich, as it was incumbent
for (he committee in obedience to his majtsiy't
warrant lo them, so it could breed no snareiior
Prejudice fnrder, nor he did burden himself hy
is own confession ; in re:>pect nbereuf, (be ex-
ceptions onglit to be repelled.
It is duplyed hy Mr. Roger Moanal to my
Lord Advocat his Keply, made to the defence^
proponed against that part of the dittay where*
by it is alledged, Tlnit the pannel cannot b«
contened as author, consulter, adviser, Etc. hut
that (he said Defence ought to be repelled, nnd
the hail menihers thereof. Auil first, 'lliat th*
said first part of the, defence is not a defence,
but a denial of that part of tlie dittay ; and tliat
the denial must be referred to an auhe, and
disputed there, end not faers i and thnt the
same fs not relevant, because albeit the pannet
has alledged another author, yet they might b«
both authori of the aaid bbel. It ii answered,
Thnt the said alleadgance stands rclei-aot, not*
wiclistandiiig the reply, because the siiid de-
fence in that part is not simply « denial, hut t*
a denial very pregnant, instantly verilymg thai
the pannel cannot be said tn be tlie nuihor, and '
so criininally to be punuedj because by hi»
depositbu before the said committee, be tiaa
.not only denied upon oath thiit be is the said
authnr, but has likewise instanlly verified the
same, condescefided upon tbij true author; and
nor only has simply condescended upnn the said
author, but lias like<«i>e instantly verified the
same: which verification being propoiieil with
the said defence, is both relevant and com-
petent now only to be ({eoided before my Lord
Justice, and not bcfurc the Attize, seeing it ii
a pfiremptor exception instnnily verified. And
whereas (he said Reply bearr, That ibc said
Author Mr. William Haig's Iriter, bearing that
the pannel was adviser, is lo h« tak«i conkpU^j
•*7] STATE TRIALS,- 10 CKAmLEs I. 163*.— TV THoi tfLord Hahmwt, t«*
tb«re 19 no «uch gpeeclies nor wonts mentioned
or contRinerf in the said letter, iThich inusciimir
b« produced, because it has bpen »e™ by the
patinel, thnt il m» j sny for iiSKlf. 'And wbereas
ibj Lord Advocat alledees. That ttie aisii* J»
bniv .iuilgcs to the probation, and ihnC he prove
bcltire them that the pannel was nurhar, ad-
viser, &c. of lh« said a)led),'ed infamous libel ;
that nught to be repelled in respect of ihe al-
leadgnnce 'prnpouitderl for lhr> pnnnel, founded
dpou hi» depwitions anj Hai|;« letler: which
depoiitions and letter beinz already produced,
and dehv«red lo the pgn'iieT, and used, and li-
bertj granted to propound his defences there-
■pon^ the defence ' b so proponed, that it may
be either (bund relevant or repelled. And it
cannot hut be fnund rderant, becaute a pannel
bein^ punned fbr a' trime, as euihor thereeff,
diia is B most usual and reterant defence, that
ke cannot ba convened as anthor. But ha
must he nbsolred from that point, because he
offers him initanti; to prove aiie other author :
Vpon wham be iikeivise tnstantlj condescends ;
and not onlj condescends, but insundj verities
and prove*. And so life exception being re-
levantly propounded, and' instantly verified, as
•aid is, il must be ijere found relevant, and
lilcetiise proven, and cannot be riFerrcd to the
inqu*«,' And where it is replied bj my Lord
Athocat, That that pnit of the defence founded
upon the pannel'i depositions, bearing that he
liBs confetaedane other author, and Riving his
oath thereupon cannot be respected, being hot
d declRT
not iiork in bis own favours; it is dupljred,
Thi)t that part of the ioid Answer and Reply
ongbt to be repellftfj in respect ofthe said de-
fence founded thereupon ; especially seeing ilie
said depositions were given before the said
eomimttee, who were appointed by hi* in^esty
for trial of the said author. And the said de-
poMtioosbeiDeapart of the Mid trial, thepur-
■tier cannot be heard to quarrel them, espe-
cially seeing tbev are used by the pnnuer
Bj^nsc tbe pannel, and are noiv us his evidence,
- Aadiflhe pursuer use them ngainsc thepannti,
it is lawful for the pannel to tnaks his nse
thoreof, so fiir as makes for him, in respect
whereof the alteadgance stands relevant in that
part founded opoD the said deposittons. Which,
ksgetber with tbe said missive Fetter written by
Ki. Haig, and which the pannel propounds
KiRpMwtM, to prove his alfeadeance, verifies
dearljlhat partthereof; and so beine both re-
levant and proven, is spfticient to dich (cjuash)
(bat part oftbedittay, Thattbe pannel should
■ot be found coilvenable as author. And
whereas mj Lord Advocat in his reply nnsners.
That tbe said first rfrfence, or first part there-
of, is not relevant, bearing that it is alled^ed
' Ibr the pannel, That he cannot be convened ns
•ntbor, seeing there is another author conde-
•cended upon, and prnvan; because it is r&-
phed that they might both be authors of the
■aid nlledged fibel : it is duplyed, That that
|iarl of the said Hepty ou^t to be repelled, in
(MpcM of the diuay itseH; whernn it is not li-
belled that Ihey are both aathors, bat only that
the pannol is nuthur ; and when it shall be so
librlled, it shall have an answer. And wbera
it is replied by mv Lord Advocat, That that port
of the dcbac'i', banring that onnanhers and ad'
viMTS arc not contained in the acts of parlia-
nienr, upon which the dittay is founded, ought
to be rcpeUeil in respect of the 151* act of tbe
leth pnrl. of king James 1, of happy monory,
wherein it is declarad, that all criminal libels
contnins airi and part. To tb.it it is duplyed,
Thui the defence stands relevant notwiibstand-
ing oF the said answer; and that tbe paanet
cnn no ways be drawn within the compass of
tlie said two acta, except npoa that which ii
Bspecially contained therein; and caniulten
and advisera are not contained therein. And
as to that contained in the other act of parlia-
ment, cited anent aii-l and part, it is answered.
That they ive diabrent : and if they be abkc,
nirt and part sboald only be mentioned in tbe
dittayj and not in the other with consulting and
advising, which arc clearly several poimsj and
roust be sovaraily elided ; in respect whereof,
that part af the said allead^nce stands relf
vant. And where il is rephed. That tbe pin-
nel's depositions, alledged in tbe eicepUoa, to
verify itiat he was not consulter, adviser, &c.
because that the said depositions bean lint he
knew not of the penning, and. rave no ndtica
thereto, tha't that part of tbe aaid allcadgance is
likewise denied nf ntfra, and not a defence.
It is replied. That as (ny Lord Advocat repeats
his reply against the deniitl, so for the pannel
the said defence and daply, made in fortifica-
tion thereof, are liere repeated-; espedaU^ that
part of the duply founded upon die (aid de-
positions, bearing that the said dtpositioDS
are used by roy Lord Advocat a^inH tht
pannel, nail therefore mnst work in his b-
vour also. Where it is reolied to that ^it of
tbe alteadgance, bearing tbnt the pannal ean-
aot be convened as aullKir and deviser, because
be has given ad<ice, and in token thereof bii
mended and reformed a pnrt of tbe said libel ;
that that cannot be rcspecred, because of tin
reason ctmtained in the snid exceplion, hearirg
that it is contrary to the depositions, and that
it impugns not tbe relevancy. It is aiiiwe«d
and duplyi-d to the said Hepty, That iM wae
ought to be repelled, in respect of that part of
the allaadgance which is founded upon tbe
pnnnel'fi deposition, and needs not impngo the
relevancy, because it is pereniplor lor that
part , Olid as it is relevant, so it is instaotlj
proven by the said deposition!, and elides thai
member of the Diltay, Being petemptorily pro-
poned,and instantly verified and proven bythe
said depasiiiunt. And albeit it ne tepKed by
my Loifl Advocat, That thcsaid depusitions are
not used by him neither as pan nor proof of iht
libel, yet it it contnur, becau^ie they are men-
tioned in some part of Ibe libel, and so Bsed-
Atid'as for proof, tl(ey cannot be yet used as
such, till the relevancy he discussed. Bat al-
beit my Lord Advocat shoold not u>e them, yet
tbe pnnuel use* the mat; and tli« ■■"i <'^^
•»)
STATE TRIALS, lOCitAatMl. 1831— >■ a Irfiel.
[<M
BiioD* maj be found a lawful probatioi) lo him
•r aoj thifig tkat he ihail foiuid theraupoi'
And wbere ll n alledged by mj Lord /
m rn hii rejilj, That [list part of the Defence
Died by the Pannel a^nst the loteriining li-
belled, that the same ii not relevant, because
not libelled wbcn interlined, u ihax pan ofthe
■aid •llea4g>iice he»» ; and it is onsirered by
mf Lord AdTocet, Tiiat ihatfeart of hil lord-
tbip's qualification is used joinUj with the rest;
■ ana that quoeui^ue temyort iateiiiiied \% an e*t-
dence of tbe Pannel's concune <riih Haig, in
respect it wai done by Haig in uame •! the
PaaBcl and iherestoftbesupplJcaDts; 7a that
il is dupllcd, Ttiat that pert of the alleadg
pnnooed far the Panael tland* relevant,
winMaiidiog of that pait of the reply made
thereto ; and that it is yet contended for tlie
Fannel, that it i* no ways relerant to alledge
Smnn* temport interlined tbertDpon, to in-
a^Dst the Panne) that be yita nutbor, lia-
viser, and airt and ptirt of the penning; for
eomiDOD tenae eriace^ that to b^ airt '
part of the penniD| or dovisine of a writing,
■unt be done eitlter the bnie of tbe fbmiii^ of
tbe mM writ, oi very sbortl; after, otherwise
uiterliaingvc never infer anthor, deviser, ~
airt and part of tha peniiiu(. And it
dearly Ht down in tbe laid a])ead|ance, tl
ireat dm* intrrvened betniit tbe nnthor'i p<
ning and devising of tbe said libd, and tbe
hnnd^ interbning of it ; for it is dear and
Dottour to my Lard Advocat and the lords of
tbe CcMnmiltee, by clear depoeilion) before
■benti that the Mid interiined libel was that
•Bine which was intended lo bave been pre-
aentcd to bis majeaty by the enrl of Rothes, and
ttiM it «■! not interlined durins the hall time
■he said ear) had the same, and K>r along line
after. And so that part of the said Diltay is
DO waysTcletant to infer thrsnid Pannel to' be
•utboT for tbe said interlining, because the time
of tbe said interlining is not libelled gvando,
and that it was at tbe time of the penning, or
mmediately afi^.
And where it is aniwered, That tbe said libel
was done by Haig in name of the Pannel and
dw.rett, that pnrt of tbe answer ongliC to be
repeUeri, nt altogether irrelevant, net bearing
tluttitwNi done at theincommand ; for to do
any deed in name of another perton, cannot
be counted that prrson's deed in whose name
it wni done. And where it is replied, that tbe
poeml is relevant, withont that bart of tbe
KaliGcation anent tbe interlinmg aR«r that the
Liuiel rec^ved it from Haig, especially seeing
it will be constant bv the depositions, when
Aej will be produced before the aisiie, that
Acre was no iuteriining longo iitttrvaliit, but
■bortty ! Tn that it i) dupFyed, It ou^t to
be repelled in respect of^ tbe ■ alleadgance,
andthsqualiScations therein coDtainedL, bear-
ing clear and undeniable drcumstances of
Ae time of tbe interlining; and likewise in
respect of the said depositions, wtiereapon
tlu part of the said alleadgance is fbnnded,
and whidi now tbe pursuer uses by pro-
pounding h's-replythereupnn. Aodienngboch
the pursuer and the Pannel condescends upon
the said depositiuns ai a probation of that pan,
that part of [be Dittay caanot he referred to
the assize, to be proven before them, nnent the
time of tbe said iuterlihiiig ; but as the defence
is relevant, as it. is proponed, and ought and
■bouid be so fc>uiid, so the depositions may ba
presently received as the prubation thereof be-
ing instantly re^itied and proven, ns said is.
And where it n -aniiverild, That tbe niiw
months, contained in the alleadganci?, alledged
to have intervened beCwJM tbe penning and in*
terliaing, is not verified; it is duplyed, That,
first, relevancy must precede probation : Serun-
de. That (he said space and time may be ga-
thered out of the ctrcnmsuuices contained ii|
tbe said alleadgance and depositions : and
lastly. The Pacnel's own declaration must be
taken thereupon, seeing the punusr shens no-
tbii^ in tbe contrary. And ibis judicatory ad-
mits no dyet lo prove any thing that is tooud rp-
levaat, whivh is not proven inifaaJer. And
where it is tdledged against that part of tbe
INiniiel'B alleadgance, beariag, tbst the said
interlined copy was never seen before it mas
Erodoced before the Committee; and tbnt the
annel had promise not to he snared, and
needed not to have priKluced it, except he had
pleased ; and that it is re)il>ed by my Lord-Ad-
vocat, That all that was urged from the Pannet
by the Committee was by good warrant, where-
auto he was obliged to answer upon his all^i-
ance ; and that the denial to answer before
ibem would have inferred agninit tbe Pannel a
more dangerous crime, if be Iiad refused ; anj '
the Committee onlv urged a true declaratiou
anent the author ; It is duptyed. That the Pan-
ibe said Committee, and upon the crime that
might have followed if he bad denyed to an-
swer, and whether he might bare declined theni
or not. But this he duplies in fortification uf .
that part of the alleadgance. That albeit be had ■
neither declined tbe said Comiaittee (as he did
not) nor had opposed in any case their powcra
or warrants; yet he might have lawfiilly pro-
poned before them this defence, which to hit
It and heavy prejudice be did omit. That of
and reason he was Dot obliged, nor could
not been uri;ed to have made any depositions,
given answers to interroiators aneut,any de-
id concerning tbe said libel quarrelled; be-
■e bis ansirera and dcpMitions ini^lit have
been the ground of a cnmiual pursuit against
him (m'now it ij.) And so with reason he
might have been silent, and the saids lords of
Committee could have taken no eiceptioti
against him for his -said silence. Aod there-
fore that part of the laid Pannel's nlleodgaoca
stands relevant, notwithstanding of tbe nnswer
bearing that be could not hnte biren com-
pelled to have made any depogitien either upon
bis oath or declarntlon, if he Imd remL-nihi?red,
and hod alledged tbe danger that waj to folloiv
and ensue thereupon. In respect wheTPof, the
saidreplies,aiid<eireTy one of them, ought to be
Sfil] STATE TblALS, lOCHAsm L l»*.— Tie Trial <f Lord BiAttrrmo. {W
Tape1l«d,in rMpectoftheuiiiolleid^EiiiGetBiul
duplies made in IbrtiGcatiuti ibfrruf.
it ii lurdcr duplycd for tlie Pannel b; Mr.
AlcxaAicr I'eurtvn, Tliai where it is replied
b; my Lord Advocat to thit part of the liit
defence, beariiif; that Mr. William UBV.'llie
muthor andpennfr uf tiie nlledxetl libel, by lui
awn grant m liii niilAve Iclier, and also ac-
knowledged by the Diitay, ibiit Ilia dcclkra-
lion lliat the piiniirl gave liis nllowHiice to tlie
pemiliii; and t'lnuiogof tbe.auid alUdgcd libel,
cannot be re«pecled, nor liaie any f«i<li, ' quia
' particeps criiuiais adversui socium, fidem non
* tacit,' irbrreupon lay Lord Advocat iiifeis a
graol Bguinit the pannel, of liii K'^ing all<>w-
&nce to Air. llui^ in tlie forming oTtlie alledg-
ed libel ; '1 o wliich it is aiiiwered, That the in-
ference iind the conaequence ia not good, and
has nit force; because the foreaaid defence
doe* uo ways inlbcce a gnuiE of nlluwaiice by
tlie pannel to ihe farming of tlie nlled^ed iibel,
but di>ei only import (but Mr. William Hiiig,
the autliiir and fwnner tliereuf, that bis declara-
tion (not grunting any) bearing the pannel lo
bavc given allowance to him in forminf; ibe
alled^ed libel, cannot be respected, nor have
an^ taiih at ull against the pannel, himiielf
beiDjr clearly the author and penocr tliereof;
* quia piriiceps aut socius criminit idtersni
' aliuu), fid^n Jon facit.l
It is also fardec duplyed for tbe pannel by
the said Mr. Aleiandtr PcBrsoii, That Hber
it is repljed by my Lord jLdvocat, iliHt it i
against law and reason to oppone juijvraiidui
in criuiiaulibai, and that the opposition of ■
oath given has only place in ciBiiihia ; it :
ansnerei), that the conlrnii is true in law, t
wit. That causes criminal are sometimes eve
decided by oalli of party by clear law. First
Le(. iS,is, F. de Jurejurandoi Verba Legis,
■ Si quis juraverit se non capuiase, non debet
" ad^uvari hoc jurejurando inactinne fucti, ol
' nlmd esc furtum fecisse, quod vel clam m
' potest.' Et Leg. 6, § S, F. de hii cfui notantur
in&min : verba legis, ' Sed et si jurejurando-
' del ato juraverit quis non deiic
'jurejoraodo approbant, quibi
* esL Et in causis criminidibus jur
' deferri, erso eiiHoi csusis criminalis per Jura-
< rnentum delatum decidi.' Aud ic is. alike,
' ulrum ju'jurandam a judice an a parte del «-
( turn lit, utrumque enim decisorium esc litis :
'e»pr«s»8 L^, 1. F.de jur^urundo: verba,
' ina&imum remedium eipedicodarutn litium '
' usum venic jurisjurandi reiigio, quin vel i
' pactione ipsorum litignntium, vel ei authorh
' Cate judicis deciduntur coDtraverwie : et r '
' quia Judei son defert, juriioentum nis
' suppleiaentum, etubi res aliler probari
< potest.* Aai therefore that part of ibe defence
foresaid stands good and relevant, notwithsta od-
ine of the reply.
It is likewise duplyed by t&r.Jahn Nitbel
for the I'annel ; Wliere it is replied by my Lord
Advucat, ihnt the opponing ol the pannel's de-
pusiiion*, whareio ha disavows that be '
thor, deviser, conscious or ncccmiy U tbt
framing of the olledged libel; >■ iioi a deleoce,
bat a deiiyal ; U is liuplyeJ, T^iat buudry points
of llie ditisy bfing qualifitnl, by tlie paowl's
deposition, tbcre rsMjlts to lum a teUvuut de-
'iiuce ill law, upou ihe iudiviaibility and com-
plex taking of hil depusiti ins, * quia coafetw
uon potest pro parte accepturi, et pro parU
*6pemi/ SartoLiuLeg. Auteliut,^ IdetaquB-
S. F. de Libcmtioiie Ltgala. Pham.
est. I
;t aliis nuEoer. * Quand«
cidcMsit vir proUus, oullamque occjdrndi et
■ uUeudeiidi causam babebat, cl qm:i occitui
'erathoioo I'iirisus; talis qualificuu conleisio
' mm potest dividi, ncc pxan eitraonlinaiia io-
'. poiii, et tic conQtens'umniuoabsoItenduiest.'
Whrreai it ia replyed by my Lord Advocal,
that tlic relevancy nf the oualiliciitian, and di>-
coiifonnity of the pannel s depositions, it not
proper to oe debated here, but must I. i;reniit(ed
to the otMit ; it is duplyed, That all ditpaiE
and debate of law must be decided by the
judge, and is not pertinent to be agitated
before tbe assiie, who are ouly judges J'actitt
gutnituTct to make iuquiiy into tUe veriiy »f
the deed,
Wlieiea* tt it replyed by my Lord Advocat,
that iiiletliniug ' vel in actu ipso, icl post
' actum []'jocunque tempore,' of a pii^ce drawn
up flit the uie of the pannel and olbers ia-
■tertsied, eiidencea tbe pannel's accesia:} eou-
curse in tlic forming and detising the piecei
it is duplyed. That it is most unreasucalile,
because it should follow, thiit interlining of any
piece or book should import concurs in IM
hrat framiug of it, which "is contniir lo rtrooo.
Whereas it is replycd by luy Lord Advucat,
That ' principium Miinii taaqunmduoeiireoM
'medium includuHt;* as is acknowledged by
us in the me of tliat niSLiim; and cttiuequcncly
that the drst intimation of the pannel's knon-
ledee, and the immediate receitingof tbe piec*
challenged, and interlining er-poit /teto,tn
relevant to make the pootiet author, or sitt
and part; it is duplyed, Tbst tliat maiim it
used by us in the iuterp relation of sunrtiy pa»-
ssgGi of a piece done unico roiitaU, wl>i(^
therefore must be presumed to be doae km
onino tl uno ityto, by the analogy uf the tnt
extremes bteipretin^ the midst; andcannevtr
be used to make disparat acts, to join pre-
posterously, lo prove accession in forming sad
detising, seeing the £rst imitacioii aliedged bj
my Lord Advocat is of knowledge, nhidipt*"
supposeth a thing lo be done.
Where it is replied by my Lord Adrocat,
that thi^ Libel produced before the lords of tht
committee with the pauuel's depositions, naC-
withslandine promise and asaumnce that tbcy
should not be used, may be used by my Ion
Advocal, and that ihe procedure of the lords
of committee is most warrantable, that ibe
panned was obliged (o ansiter by his slltadf
ance -. it is duplyed. That tbe warmntable pr»-
ccdue of tbe committee is not cantetted, »»
US]
STATE TRIALS, IOCba«.e»I. 163*^.— for a libel.
[Gii
ctnnAt be; Mid thnt the pannd, nlbeit he
could nit decline hii majesty'a counmitMonera,
might rery wel! in reawn «iid Inw hnve refused
to depone liii own diltay. And \rt adhere tn
the fbrtntr cilalions, RTerring thatlhe Hssurance
gtven-by jodgeB should lecore pnnneli agtinat
Mtj <ne Wat could have been made of llieir
dnondona.
It it added to the dapltet bj Mr. Robert
Macgill, ThM where mj Loid Adtoctit has re-
[dici), ihat the oatk or a part; to be indkted
may be urjced in criminals, ' qnod hoc vix sit
* aDditom in jare,* Clkrus § ult. Qumt. 69, et
Quant. 45, num. 9. And if it hatli been prac-
ticed in some parts, aa likmiie in this counlrir
in the Eiaminatioii of these'Ubo areto he in-
fHcted, ' Conauetndo illn est Tetustat erroris
' qine non adeo suo momentu Talilnra, eut nt
' legem vincat aut ratiotiem.' Apud Gre[;Qri-
nm, et Coriice Joitiniano, qan sit lont^a Con-
inetudo. The renaon of tlie ]:iw ii, that the
maintaining of nur life is so natuml, that whnt
will w* not ixy far the defence of it ? ' El su-
• ptti omnia evitandum fsl p»rjurinm.* And
the reasons' of the practicians is nothing, which
» lest crimes should be unpnnished : for upon
piubation hy writing, witnesses or other con-
fenion, ^a noii nt jurata, or iipnn presump-
tions Itief meridiana rlariarea, an Mlled<;cd cri-
rtinal may he put to the knowledge of nny os-
lyie ; or olherwisc the (jueitinn may be oied,
•ad eliciendam jeritatem.' And wheiecfle-
»ily of pohishmeot may be objected mtlier or a
man pe^nre himself, ' rindicm tnriJiCas sup-
' plicR graritate compenselur.' But accepting
the prnclique lo he^so, I say, that ' in confes-
' siom? jnraw nullo jicEn* metu propter impu-
' nitateni proinisanm.' Tiie nia^im of the Ian
mvM be here received, jum/ upproia, non re-
prebo ; efipecially seeing tbe pannel was so
simple and carHeiis in respect of' his innnrencj,
that be reinitied ihe forming of his depiKutions
toihe liiMi i)f cnnmitiees themfelTes, he br-
ine then removed the time of the dytini nnd
"Tiling of ihcm, and did subscribe them fide
mplieHa.
Where it is replyed, that aHvisinp nnd"devis-
ing may he attributed or r|iin1ified hy any suK
•eqoent deeil lii the alledged crime ; it is sr
M*ered hy that of Sallust, ' Et anieijunm iuc
* piss coiisuho,' &c. nnd so it is in mandaii
And as ro the nililiRbilinn,«'^f/i»^Brii; nn
it is to b« understood ' In criminibus ma>iitt'(
* lii, el lion ubi qiiRritar de numiNe crimiiii^ ,
as in oar case. AAd remits to the distinciinn
alledged in the hinder part of the fine excep-
It is dliplyed hy Mr. Rngrr ilomal to the
t*o .pnieiiques of Aucliindnme and Carriirie
•lledit<'d by my Lord Advocat, ThnC they suit
not this cjisc, ssyiiij ihat dep"si'ions ^uld
not priire in liviur of the pMimel, because if
nny depii«iti> ns ivere iiivrn by tiie«c iwo per-
•oiis, not cranting the same, tliey vtere given
alter their iitdlclment for the crinifs of murder ;
bat here tl>e dej'n'itinns are cfven before gny
«»iaie known. S«cand]y, If any depositions
given, they were the voluntary depoii'
of the party, not demanded hy Che judj^.
Thirdly, it is not replyed, that these' delinqiienl*
proponed any defence upon their depositions,
---' -iTed their said depositions to verify the
ipute. Lnscly, it was not thrae alledged
lered to be proven, That there was ane
other author of ilie said murder, which wat
a-; whereupon if tbey bad conde- "'
soended and offered to prove the same; their
depositions would have been further respected.
In respect of wbicli clear differences of thesa
delinquents from this case, no respect can be
had to the practiques alledged.
The Dyet conunued till to-morrow the 11th
Curia legitime affiimatn, the said 11th of De-
cember, 1634. Parties and Prococators a*
The, king's majesty's Adrocal having heard
the Dup.lies made to his lordship's Heply, de-
clares tliat he linds Dothinj; wortliy therein to
be answered, except one point of taw moved
rerjr impertinently Hnent tbe division of cod-
frsiion lu criiniiials, aud another made mjacto
anent tlie cbillenge made ti> the committee in
an (Hedged promise made to the pannel at the
time of liis txaminalion. And fur the first,
wliichisdiinutalleiJijurr, if it had been pcp-
linenl to tlie purpose, his mojeEty's Advocot ,
declares he would huve triplyed thereto in
writing, and js reiidy,'Upon my Lord Ju^ice'«
desire, to clear it to bjs lordship. And ns to
the other part iii/ticto. it is more pertinent to
be clcareo hefuie the Kssyze. And therefore
lie supercedes bis iinsxcr, e:tcepted he he co-
juineil iher^to by my Lord Justice Geueral.
Qiiinlo, It is alledged hy Mr. Jtoger Momit
fur the pannel' H£niast lli« secund allernntivc
of the Uittny,,Thui the pnnnei ought Co hens-
soiUed, and cimiiot he put to ilie knowledge
of an assy/e, for alledged hearing, concealing,
and not levealing, and not apprehending of the
author of the alledced infamous libel, tuid al-
ledged divulging mm dispersing thereof, as the
Dittay bcnrs ; because giving, and not grant-
inc, that the fiiresnid supplication quarrelled
might be found sca.iirtalous sgiiast Mr. Willium
Haig, the kuown author thereofi yet vuoad
this pannel, who is not, nor cannot be found
the author, it ' cannot be so declared, becahsc
tlie addition of the act 1594, niilitats only
ngainit such wrllinE^ ns are nianifestlv, dearly,
and without douht or difficulty evident and
seen, and known «i be infamous lihels, and at
th^ very first sight may appear such unto every
ordinary underrCnndiiig. But the qunrrelled
supplication beinE of a daCtfuI strain, and snch
as might be mislaJien even by very niidrntand-
ing readers and henrers, the addition of the
s*id act can no wnyi he extended to the
Ik rrer., canceaiers, mil revealers, and not ai>-
prehinders. But io ic i>, that the said quar-
relled supplication was delivered by the s.iid
author to tlis pauBe! as an humble tupplicaiion.
656] STATE 'f^lIAt^ lOCxiM.at 1034.— Tile 7Vwf^£MvIfi<ibicrMo,
humble tupfilicatiou, and returned to hi
ttti the tame uain« i likens tlie pannrl ii con-
tent to make fiiilh anent hit knowledge and
coHceptiiiD tliireof, thnt b« . received and n-
taiaed the wrae fo nomine i and Uierernre can-
not be put la an assyie upon tlieM points, see-
ing tbey are points tliat cannot ia reason be
foaod capital hj tbe cocnmon and civil law,
Imii by toe said addition, which wat mad* in
ltltbuleKtt>iii«», aqd Dcver look eOect, but in
coBliDHal desuetude, ei hai been anid before.
And it were vary haid, upon such ane act,
never pmctised Mretofore, to make Doblemeo
and others bis rnajesly't gnod subjects nbnoii-
411S to a capttnl criine. And albeit the siiid
Snarrdled supplicntion niiEht now be fonnd to
a infomoui, jet the linditi; it now to be such,
ought not, oor caunot ba drawn back to infer
die pain of death upan ihnie who bonajide did
not tliink it such, as now it is said to be by the
•aid Dittay; they haring ' justatn et probabi-
* lent )"norantiam,' by dojn; that which truly
they did, thereby not to have incurred the hard
iind ri|oroas censure of the said aci of parlin-
Boent, Secondly, It is nlledged, that abtolvi-
fur ought to be gianted trf lupra to the pnnnet,
becBuie ihe supjilicHtion quarrelled wai never
declared hErelolnre inftmious: and before it
had been declared infmnout and scandalous,
and by the snid declarator the pannel hod been
certified of the danger, the alintgedliavingaud
ticarinj; thereof cannot be now sustained as a
relevant ground to infer this criilmal pursuit
and pain) of death agninst him. And with
reasan it should have been first to declared
•gainst liiiu, that he, and others his niiyetty*B
loyal and good subjecis, being lawfiilly ivar^
rauted fay [he said Declanitor, might have
thereaftar eschewed to bavb ofitnded in tkat
bifld. Tliirdly, mbmtritur ought to be sruted,
because, the said qoarrelled supplication vat
intended and offered to be presented to his sa-
cred niBJesly ; which intended offer of tbe said
Mipplication by the earl of Ralhet, put the
pannct iu luto, that be conld never have sut-
Bected any crime or punishment for hearing,
leepiue, Stc. to hare fotlowed after tlw said
intended ofler : aud so was thereby in optima
ji4e to bear, Itftcp, and not to reteal any thing
tbereanent. Tm sinking of the which offer to
hit royal majesty, ia the panud's jiid|nient,
did tlien vindicat him that he thouglit nor ccni-
ceiyed not the said supplication scandalous or
•edilious; seeing it is presumed tliat no man
of Judgment, or ordinary-. sense and reason,
would be so foolish at to offer liii own Dittay
(n his prince.
And that tbe Pannel't innoceney may fat-
iher appeor, tud that hit Opinina and Judg-
ineul of ihe said i^uarreUed supplicatiiin, as be
«0«rs to declare tlie sune then to have been,
M3J bt? trusted above nil other presumptioni
that can be adduced in tbe contrair ; it is tq he
remarked, and gravely and wisely considered
\ij the Judges, that the pnrsusr in'ef(ect has no
•ther evi(hiio* aor probation «f tbe iaid par-
ticulnrs libelled in the tsid dittay agiiatt ik«
pannel, hut tuch at proceed from hit owa d(-
po^itiont made before tbe said commitleci
which point it so considerable, that in reatoa
uo advantage iliould arise thereapoa agaioM
hini, seeing he was OBt obliged thereto, but of
his own accord. And as in law a penmi ac-
cused criminally caunot be compelled either W
depone or declare at the cownand of theia^ge,
so tbe deposjtioni giv«) by this pannel beSn
the said coomiittec, should not be (especled, in
so far as the sania may be made ane giouod of
the aaid diuay, which concludes and inlen bo
less against the pannel nor the pain of death.
And for the poiot of, concealing and DAre-
realing th^ said writ, ie facto the same was re-
vealed by the pvunel to the evl of Rothes, ia
so far as the same was appointed to be pie-
sruted to his sacred niBJe«t>y, Ud thvtby ia
have bean revealed to his highncsi : likns ac-
cordingly tbe carl of Roibet did ofe to petieat
the same, aa Mid is. Ia reapect wbcm^at-
tolvitvr itoa\ the said conc^ing and mk re-
vealing; aim^itur likewise for not apprehcod-
ing, because, as it said heioi^ the paand ia
ready to declare, that in biajadgioent aodcon.
ceptioo be did not think ih< said quanellal
supplication to be such as it it libelled by tbe
dittay, for the reasons befi>re .adduced. Asd
iir that respect ii was hard iar him at a priviU
man [« take upon him to appiehcud the aoikar
of a writin|(, nbicb before he bad not oancaivtd
to bll within the compass of the said act of
parliament. For aU>eit in tsstters of trcasan
all giMd tuhjectt are ohligad in duty under all
highest pain to discovs and delate auihon mhI
practisert tbcrocf; yet in other mattan, in
writing, and such like, wlwrein are doobijbl
and aabiguou; eiprtssions, wjiich may soIh
divers interpreiatiDns and consBuction* accord-
iiig to the humoun, capacities, and couceptioiii
of tbe readers i thm it no tu)^ neceasity posed
by tbe taid actt of parliuuent libelled, nor by
tbe makMS of the tame, that a writing coning
In a man's hands, wbere«f he niakea not the
right sense and meauing as others do oak*
tbereufoo, that the said writing aot rightly
undeniood by him, shall tbereupon be a ground
of n criminal parsuit to ma^e nim lose his lit*
parativetaansdangerouiandsinguiw; itw
therefore be carefully adverted \iaVi, tpeciaily
at tliis time, and in (hi* CHSe{ wbeu as the put-
ting of (be tsid act iu practice, seema to hav*
tbe first hennaing upon this pannel- And thf
taking and apprehending of li^dges has bercto-
fore been dangemnt to tundrr apprehentlen ;
and it iustBDCed by the aarl of "Queeutbury »bA
the laird of Geichtit practioea, for taking of
leidgea at their onn hands.
It is answered to that part of the said Diltay
aneak Mr. Hais's apprehending of his own dan-
ger upon the simple skht of ike coaaraiuee^
letter by tlie pannd. That that cannot auk*
the pannel accfsaary to hit escape, ao mora ixit
coMeu ane^t the p«nau)g,ef (be Mid
657J
STATE TRIALS, IOCitarusI. 163*.-^ a Libei.
[653
^uwrelled uipiJicaUou can nuke ibe pBund
ftiix Bud part uf ib« funuini; Hiid peiiuing tbcre-
of; beciag the uid pnntiel'i wcund deposition
bears llint lie wm ueitliei uiion the couutel nor
kiinwledga of \ua esc»pe, uid koew aoC of it
'till three or fiiui dnji &Jter he was gone. Tliat
pnrt of the dictay anenFtbe pannerb receiving
of Mr. Uaig'a tetter, is no iny releiant to infer
tlis poiD and crime libelled agaiDst tlie paupel.
First, becaiue this is not a matter of treason,
wbereia receivJDg and writingof letters are pro-
hibit. SecoDdlj, I'lie pannel was not prubibit
bj the lurds of tbe coauniUee to receive aoj
Miient. Tliirdl}', The uid lelien are produced
bud delivered to t!)e said^ lords, which in rigour
of Iftw be needed Dot to hare dotw. Fourttil]',
fieing produced, tbe; prove authiog agaioiKbe
nonoel, bui are clearly in his favour j became
Mr. Haig profes&es biuuelf therein to be ontlior
•nd prauer of tbe said sup)JicatiDii. Aad
when it foJlovi in the laiif tUttav, that it i«
affinnsd and avowed ic some of the said mii-
«>«tt^ That Mr. Uaij{ bad the peuuel's ap pro-
batiiw and allowance to the making aud p«ii-
niaf of the laid tupplicotion, thiit is aJlogetber
inrelnaot, as-hatiitg uit warrand ftoai tbe said
wtiiTe letter, which contains no sucb affinna-
tioB as is libelled. And the pannel craves the
Jetter bearing that fMSsageprowntljr to be read,
weing It is IB m; ]Jord Adrooat'i hands ; which
desire thould be graDted, because the pannel
baa seen it, with the rest of bit said misAives, bj
warraad irouiin; lord juitice and his assessors.
It is added fay Mr. Altrander Ptarmn to
^ Eiceptioa, That the pannel is out guiitj' of
coDveaiini, not revealing aDd ilirulging of the
alledfted infnuious libel, because the writini
quarreilcd being in form of a supplication, and
BMd as a Hipplicatioii by offer made thereof to
his aajestj, who then gave no gignificatioo of
taj offence therewith, the pannel is not, nor
caoaot be counted tbrmally a concealer, not
levealer, ordivulner ofan iafaiDOUi libel, lliere
being jio such knowledge nor opinion aneni
-tbe writiiiij foresaid of ihe pannel : ' Quia iii-
'JBriam poteiC facero nemo, nisi qui stnt se
' mjuriaas fiicere.' Leg. 3, ^ 3, F. de Injuriii.
' '^~' ncni buMbat banc scienEiam,
uam credcndi,' to think of it
npplicatian, for the reasons
«bi>T« lebtancd. Aed as Kben any is accused
'•fth^ iiis a§ood defence to aay, > Quoddo-
* isiai volantale et consensu rem cnntrectant.
* Mbein patarrit donunum coasenHuun, tive
' id lalso, sire id vcro pntet ;' eipresan Leg.
4fi, ^ 7, de Furtis, * inaxime diun auberat intra
* causa ita crtdeodum.' So by the like reason
io tbe matter of meddling with the inbmous
Ubd, it must defend the pnnnel, that ha had
BO knowled^ or conscience of aiie infamous
libel, and that he bad just aixl probable causes
U ituok af it M a aupphcation, * sive id falso
* live id vero putavii, et generaliter Hbi de
' ebligando qaeritor, propeniiores esse debere
' noe (si habeaimis nccasionem) ad Deganduai,
' iifaiMibtma4owllibenlioDeiii,'aitAtiuw,
roL. in.
Leg^ 47, de Otiligationibas et Actioiiibus i
' ergo in te pnrseiiti rauieiulB est occasio ad
' liberationem accusali.' Specially ant^iit tlie
dirulgiug, because this point of tlitlaj anent
divulging, is hoc Ibunded upon any acts of par-
liament, but only upon tlie coiomon and'civil
law, and clierefgte should be decided liy the
said law: by ivhit^ the defence uow alledsed
tor the pannel is very relevant. Farder, ilmt
part of the ditcay, bearing (but tlie pannel by
sheuiug to Mr. ilaig of tlie warrant of hit
citatiion, did theteby gire bim uccaiion to escape
forth of the conutiy, is not relevant ; becaute
that whidi of itself is good, may nive nccusiou
lo evil : and the punnel's shewing the warrant
of ills citation, is uo wnre nor if b«ing verbally
cited, he had tnid Mr. Haig of bis citatiiin.
It is ndded by Mr. Juhn f/itbit, that the
diUHy subsuming concealing of the niece quai^
' relied, is contrary to itself, bearing the impart-
ing ot it to my loid It'itbcs, of purpose to pre-
sent to the kind's miksty.
fi it added, that the not apprehending tlie
author of an infamous libel, ii not rtlevanily
qualified, by the not taking of Haie ; seeing
it is not libelled, Cbnl the alledged Iihel wat
declared to be of that nature, or coii^'picuoosly
or nutlourly, at least to the paniiel's knawUdgr,
an inlamoiu piere ; and that it was in the ,
pannel's power to ilpprehend the autlior with*
out incuiring any haiard of law, for the inJQ-
rious interpejlaiion or apprehending of any
erson, nhorn he was nut nble Co convince Co
author: specially teeing (he not nppreliend-
ing of ilie author of u treasouaUe piece cannot
in>part any KU lit against the not appreliender,
who is notable to convince the author of the
Crime by Iswfut probation, and tlierefire not
obliged to apprehend, since he cnnuoC do ic
nilhout the danger uf retaliation, in case he
succumb ; James 6, par. 8, cap. 45. And in
laiv, ' Qui injuriose interpelliC io judicio civili
' leneiur injuriam,' F. de Liiuriis, Lege 19.
' Et si liber pro fugitivo appreliensus sit, -ap-
' prehendens punitur.' And by the like rea-
son, tlic appretender of a pnrty,whum he cannot
caiivince by lawful probation, is punishable ;
and in the civil taw, lie ia obnoiiuua in the pnins
of Lex Julia de Vipublica, and of Lex Cornelia
Secondly, The appreliendinE injoined by act
of parliaracut is nnly subsidiary, when a par^
it (leclared author, and cannot be well appre^
bended by tbejudge: and a party tliat in ready
In di late the author of nn infamous piece, to
ihe-rnd iliat lie maybe apprehended by tbe
Juitee, he is not obliged lo apprehend bim sum*
1 hirtJly, The not apprehending uf the (br»-
gaid author is excn-^eahle ; because [he pannel
was enjoined bv the lords of the oimmitcee
not to divulge tbe business wliereupon he was
convened, and to keep tH things secret until
briber ^*i bjr Ut. JMo-r JOwyif^
2u
.Google
653] STATE TRL\LS, IOChablesI. ]tU.— The Trial <^ Lord Babnemo, [600
in ibe ditUy piwciiely, accordiag to the word*
of ihe act, rbat the pannel, who knew Hme
to bt- HDthur, did not apprkheud, bul concealed
him and it, and not revealetl Uion ; and a}to
gave occasion to Haig of his ewspe ; and siace
his escapf.received divert letter! rn>n]liiiii,wbicb
were concealed (ill iho panuel whs iiiterrogiU
thereupon by (be committee. Aud wberc it i*
Hlledged in the eiception, that llie dittay it
not relevant in thii point, nut coDdescfnding
that the injtunous iibel was declared to be aa
libel; anil in particular that the ditutj
irt ii contrsir to itself, which bean
the punuel to be guilty of concealing ; and jn
bears nlso that lie delivered it to the earl of
Uothes, to be prcKnted to hii majesty : it ia
answered, tlint the dittdj is relevau, becao**
it flubaumei directly according to Ibe act of
pirliiunent, which speaks not of an inftunoiu
libel declared to be eo, but o( an infamoua
libel of BpFcches, wliich are «o really in the
Mlt^ And there is no contniriety in the dittay,
becADse giving to the earl of Itotbes ia con^
cealing, except it Here qualified that the carl
of Rothes were «uch a person to whom tht
act of parliament ties the lietver to reveai,
which he is not, not being of liis majcsn's ae-
cret couDcii. And where it is alledgeo that
the true meanini and sense of the act is onlj
to be understood of reproaches and infamom
libels, wiiich are certainly, couspicubmly, ami
nottourlj BO, and not of such speeches ami
libels which are of a doubtful and atiibiguons,
or indilferent nature, which at tlie first view
and hearing cmild Dot appear to allrmeti lo be
iiifaiuous and scandalous : it ii ausn-ered, Tbiit
' Ulii lex non distinguii, nee ans di&tinguere
' debemus,' And seeing the act comprehends
reproaches and scandalous libels, wliicb are so
reaily, ' et non opinione,' the Judge and atiiae
are obliged to judge ind proceed tccurdin; to
the nature of the thing prbiiibited, as it is ao
really, and not to leave place to frustrate iha
execution of the In w under the v«il of npioion.
And of the law, ' ignorantia juris ncmiuem e»-
■ cusat ne quidem in dulictis, licet sic igooran-
' lin prohabilis prscipue in atracioribuc,' of
•rliicii nature this is. Neither can the pannel
pretend excuse upon the incer^aiiity, obsctirity,
or ambiguity of the infamous lihel ; because
ihis bfomoui li^el, by the lirst view, reading,
and inspection thereof, might and tbould have
appeared to him to have been of thai nature.
And no nobleman, or nhatsomever subject of
whaisonterer quality, being of the paonel's
knowledge, Icaraii^, and uoderManding, can
or could iastl)[ pretend any doubt 'or scmpte;
but thot die laid infiunous libel wa», in the first
view and reading thereof, of the nature of a
scandalous libel, punithed b^ death. And al-
beit in infamous libels against subjects tbera
might be some shadow of excuse, by reading
and looking upon the saate, and receiving
tlieiwjf either for cuciosity, or to leam the
quickness of a wit evil set in ihe pcnninf; of
tuch in£unoDs libels : bat inch excDfei arc
damnahle in iufkmmi* libtb which tooch wilb
aiient the nut a|>prebending, Thnt tire pannel
ought to be Bsuiilzed iheretrom, because free-
dom is so nntural and laruunibte, that eren
- amonpt the ILomans many of ibeir maeistrates
had nut Prehensionem ; and that Hbich the
tribunes of the peuple lind, it was aliiu for the
ueopte's freedom. Gellius, lib. 13, cap. la.
Wbei^in it is certain of the law, ' quod nee
' magistmlibus licet aliquid injuriose lacerr,
' quin injuriariim teneantur.' Leg. nee Msgist.
39, P. de Injuriit. ' Unde etiam cnptura
* debet esse ex decreto jadicis ei judicia <|uk
' resultant ex processu generalis inquisitionis
* debent esse sulEcientia ad capturaiu, decer-
'Aiturqiie capturi ex facti quslitale et debet
' processus esse infurmatus licet reus qui cspi-
' endus.est, uon ciiatus >-it:' Clar. ^ ultima,
QuKst. 28, et Qiifstioae 'iO, num. 2. ' C]uod in
' dehcti^cnonoihus id ita hodie servatur.' If
tllen it be so, ia magiilratibntcaplKianijubenti-
£ui,can it be thought that any municipal law can
command apprehension, ■ nisi in casibus dc
* jure, et ralione compeientibua !' And so ' in
.' crimini bus decorum enormitatcjam satis con-
' Stat' (where the pannel professes before God)
* etjunsjuraiidumpurtcativumdejurerecipilur.'
L^. Lex Cnrnelia 5. ^ 8, de Injuriis. That be
never rememhered of such an act, he. could
never have imagined at timt time the piece
quarrelled to have been ofiuch a sort, much
Jess to be treasoiinble ; and remits here to the
distinctibtt of crimes propounded in the last
pert of my 6nt exception, where crimes and
pains ought to be ruled in reason even in niu-
nicipal laws ; and except in such seditious
■peedies, which is the first iort of inordiiiat
speeches against a prince, ' Ubi el iraclntus
* adesse debet,, ut in conjiirstione Catilina;'
no lawyer did ever think the haver, hearer,
and nor revculer, not apprchf mier, to be pun-
ishable by death; ' et ut videtur absurdum.'
Alt municipal laws ought to receive iheir own
limititions according to reason: and remits
here to the second part of my duply, in Ibrti-
licalion of my first exception, grounded upon
Gailus, lib. 9, Observarione 33, anent the in-
terpretation of municipal laws ; and to the
limitation exponing the act 134, which forbids
any man, of whatsoever quality, tii speak in
time coming ancnt the government : which
vrould be absurd, if it received hot its own li-
luitaiion to speak (about it) in council and par-
liament. And repeats here again the gracioui
nets of our dread sovereign oneat the surveying
of the laws.
It is Biiswered by ray Lord Advnral
fourth Exception propounded against that part
of the ditlay, whereby the pannel is indicted
and is punishable by death ; and tliat by the
act of pari. 94. for not apprehending of Ilaig
the author of tlie infamous libel, and for n
revealing of the same, ought to 1j« r.ejielled
the hail members thereof, And notwiilisi^iu
ing ihe same, the diltay in that part is severally
ami MT «t relevant, ouf^ht to bo put ' '
knowledge of uawiiei because
,Goo;;lc
«61]
STATE TRIALS, 10 Chau.es I. lS34u— /or a L&/.
[G6S
the ieait vpersioo or blame the honour, credit
and i;lon'>iu estimallon of our gracioni sove-
nu^n. LikeM the pannd cbduM pretend ie-
nursJice, in so fir la he granted in hi) depnai-
tiom, that after bis receiving thereof fiom
Hiig, nbeii he did conmiiiiicB.tE thewme with
the emri of Hothes, ihat the; found the same
of such a strain as ougtit not to be presented
to our graciou] sovereign. And where it is
oUedged that this net of paHiament 94, in tite
poiiita of the addition anent not apprehending
and not revenling, are not of crimes punish-
able la death by the commaii law ; uud ihat
the mme lias heen in lung desuetude, and out
of use; that ou^itnotto be respected, hecauj*
we are ruled fiy the laws of the kingdom, hy
the acts node by James 1, and James 4, be-
fore alkei^ed; and then is no pre^ription in
taw. And where it seems to be adduced to
infer ' piobnbilem ignorant ism,' it is ansnered
' Qnod omnii ignnrantia juris est iinprubabilis
' et puDibilis.' And where it is alledged ibe
panitel ■ habebat ignonuitiam facti eamquc pro-
* babilem qan cxcusat in dehctis;' in so far
as «lb«it this inf:4nious libel was punishable to
death in the person of the author, yet it cannot
be punishable to death in the pannel, not
beii^ author as lie alledges, because it was de-
livered to him as a (application, to be presented
to his majetty ; anil that be presented it tn the
earl of Rothes, who made tiffer thereof lo his
najestj ; and after retnmed it to the pannel,
which (as. the pannel alledgea) put him ' in tuto
* et ill buna tide' not to apprehend Haig, not to
Tcreal it to aay of his majesty's council ai a
•candalous and inbtaoul libri, because he did
not concetre it to be so; and is content to de-
pone upon his great oath, that he did not luiow,
nor appteliend the same to be lui infamous
libel ; it is answered, that the nature and strain
of the infamous libel must be the rule of po-
nishmenc or impunity, and not theoinnion of
tlie pannel; the reproaches, eiprobations, and
scandalous asper«iiins thereby put upon his
m^esty's sacred person, estate, and governmeni,
bun); so nottonr, eviilent, end conspicuous, that
tieither the pannel, nor none of his knotrledge
and Judgment, could pretend excuse or igno-
rance in the reading thereof; ' Va est ignunm-
' tia maximc inescusabiiis aescire hoc quod
* omncs sciunt :' bac especially in tin panoel,
who adterted to it narrowly, and heard it not
Hmply spoken, but bad it delivered to him in
writing, which lie kceped, copied, and advised
with. Olid found tlie straia thereof of that nn-
ture, as was not fit tn be presented to his ma-
jesty. And where it is alledged. That the pan-
nel cannot be punishable to deuth for not ap-
prehending of llaig, and not revealing of him
■nd his inlamous lil^el, except it had been de-
clared to 1 .'\ve been iiil^inoBS, and Haig to
have been the author thereof) mid that the
apprehend in-- of Hait> in a matter so obscure
and ckwlhtsonie, wnuld have been dnngcmus to
the pannel per TMiaAwmKsi or retaliation, or-
riaioed.frr the act of ptirliiunent uf king Jamv<,
kit majesty's blessed fiitfaer, of happy memory,
pari. 9. cap. 49. Tt is answered, tfanc act of
pnrliainent requires na other declarator bat th«
real nBluri> and quiility at the speeches un<t in-
famous libel ; neither could there have been
dani^' in apprehending, being warrnntcd by
the liw. And wbera it is alkged, Ihat nil de-
pends upon llie pannel's depusition which he
made viilunlarily fur satisfaction of the lords of
comniiKee ; and thiit therefore he must have
yet place to clear his own depositions ; and
that lor clearing thereof, he is ready la depona
by his great oatb, thnt nt the receipt of the said
infamiius libel, he received the same as a sup-
plication, and so keeped it, and retained it :
It is answered, that tbe most substantial part
of thedittay is founded upon the nature ot the
in&mous libel, and n^it upon the pannel's de-
positions ; wlicrein his denial ot kiiofvleitee
upon oafh cannot liberal him from the punish-
ment of death contained in the act of parlia-
And where it is alledged, that albeit the jus-
tice ihould find this libel to be infamous ilDw,
yet it cannot be drawn back to tlie lime of his
receipt fmm llaig; it is answered, that it needs
no declariilion of judge, and consequently i*
not to be drawn' back, Tiut was so frocu (he be-
ginning.
And where it is alledged, Tiiat albeit in laal- '
tets of treasiin all subjects are obliged to de-
late, yet not in mittem which are doubtsotne,
bat certain ; it is answered, J hat iliis is cer-
}ain, ' et de jure et do facto :' lii- jurr, because
eommanded to apprehend under tbe pain of '
death ; de faclo, because of llie said inhmoa*
libi'l, which is really and of the own nature so.
And wbere it is alledged, that • Crednliias
' in funis pnebet causam prubabilem,' for th«
which tbe teat uf tbe laws are adduced; it it
answered, ■ Quod ilia credulitas probanda est
' aliter quam per juramentum rei.'
And where it is alledged, that ' proaioret
■ esse debemus ad liberaiiduiu ;' it is answered.
That tills lias no place in atrodoriiui, and
which areso dear and manifest as this.
And where it u alledged, that the Pannel
ou^ht to be Bssoilzed for not apprehending and
not reveaUng, because he did reveal it to the
earl of liothts, who did make otTer of it to bis
majeMy ; it is answered, * Quod nulla motto
'rekvat,* in respect of the act of parliament
whicii ordabs the revealing to be to a cnunsel-
lur, which Kothes wns ni^t. And (lie offer
to his ninje^iy by the earl of Rothes non
rtUzat, exrept it be nlledgad, that tbe earl
of Rothes otTered it to hie mojescy as a scan-
dalous libt'l, to bs punished cunfurm lo th«
act of parliament; which is not nor cannot
be alledged. And supposing thnt this re-
vealing by the earl of Hiithes to his majesty
mi^lit be sugtuiiied as lawful for procuring im-
punitv from the act, which is not granted : yet
tbe Pnnnel is punishuble to tieiitli u|joii tbe
other member, for nut apprehending uftlai^
i*h'>m he iu his drposiiiuns dtclaied lo baTO
been ihe author thereof, and wh'ini he miubt
have apprehended, both at the time of receipt
66S] STATE TRIALS, 10 Cbauu 1. 1634.— ne I'nol qf Xerd Bobimmi, [m
tbercof, and alw at tlic time when the Pannel
ahened to tUig ihe wtminil of hii ciuitiuD
before Uie Cummittee, he hntiiig hint tbea in
bitpiiwer. And wh^re it iialicdged, ihnt be
couli) not ipprehead liim tlieu, in respect of tlie
command given (» the Puniiel by the Commit-
tee, (O acquaint no peraoiu witli tlie causes of
'faia warning: iliat cannot be Adduced fur an
•icuse, but rather makes the Paunel inexcusa-
ble, because he trnn^rfsied the command tif
the Uoinlnittee in ahuwing of the wamtnd to
Halg, nnd jet did not apprehend him ; but,
•bowing of ibe warmud, gnve him occRsion to
elcape. And where it is nlledgrd, that giving
I lelevB
iiid also that r
ceiving letters from him (not being
ler treasiinnbU] is not pniiiBhable; it u ao-
■wered. That tliese circumatHni;** nre not ea-
Mnlial parts uf tlie Dittay per te, but uaod as
■dmiiiicln ta n^sraiaie the Panuel's crime in
not apprehcnduif; of linig, and entertaining
vith hini correspondence otier his Bif^Rt.
And where it is ulledged the letten, if tfie;
were produced, would prove nothing agaiiift
■be Paand, but in bis favaors, non at Aujm
ioci, becnuie now we are only upiln the rele-
Taacv of the Dittaj. But when they sliall lie
Bwd in the proper place berore ihc auize, it
will be slear, that the same make rather against
than for tlie PanneJ, in respect whereof the
tiid fourth eicrptioii, and bail menberB there-
of, ou^ht to be repelled.
It is dnplyad by Mr. Roger Mawial, in forti-
ficMion ot the Defence proponed for the Pan-
nel, l>enrine, that giving and not grsnune that
ihefiiresHJd lupplicacion qunrrelled miant be
fimnd tcnndaliius agaiiiEt llaiit ''>* author; yet
fitMd (be Pannel cannot be found, becauie the
•ddUion of the act 94 miliiats only against
pleu writinei, clearly known to be ioAunous;
•pd U the fine this appears not so, being at' •
doabtfnl strain, as the excepiion bean.
Wliereonto it is replied, that tlie boil mem-
ben of the Dilta,y, anent heariug, not revealing,
»ot apprehending the author, arc severally re-
levant, in respect of the act of parlinnient ;
whereuDon it is subaumed, thnt the Pannel
knew Hoi^ to be the author, mid did not ap-
prebend him, but concealed and revealed nei-
ther liiitt nor the said alledged libel, and sick-
lik* occasioned his escape, und received letten
from him since. It is duplyed, that the aoid
fourth olleadgance proponed tor the Pannel,
ftands relevnnb in the hail members thereoli
not withstanding of the snid reply fbuuded upon
Ibe said act of parliament ; and the Pannel re-
fers himself to ibe said excppiiiin and hail mem-
bers thereoF, to be judicially pondered and con-
sidered. And iarther alled);es, thnt the said
reply is not relevant, bearing that part of
tba subaumption of the Dittay is fuunded upon
the (aid act, bearing, that the Pannel knew
Hnig to be ibe author, and did not apprehend
Um I Because albeit the Pannel knew him to
be the autbw, aa hit deposition bean In these
«ufd%.thu be took him to be the author; yet
it fblloweth, not by good coosMiDeiice in law 01
reason, thai be took him to be the author of
this a* a seditious aod scaodukitts hbcl, as my
Lord Advouat in his rephes bean hardly upon
us, which were to take eoalrootrium pro can-
Jtuo : And lo the Pannel still abidiag-hy ius
fomer defence, acknowledges, tbftt il he bid
known the librl to bate been iali|mous, be was
tied to the strict observance of the aa of par-
I inmcnt made against libels of that nature and
kmd. But seeing tba Pannel was stiU iteaied
all such knowledge as is iofarced upon him by
the Dittay and reply, and that it ia againrt rea-
son that any furder knowledge of i writing
should be inturced upon a pnrty, oiherwtie
than he declares hinuelf, and has detlsredat
inirio : fur he has atdl affirmed, and yet doM
affirm, that he never conceived that quarrelled
writ to hate been inRimoue, or to have carried
or rubbed any BSpeisiont upon his sacred so-
vereign ; which if he had perceived, he would
rather have lost his hfe b^rc lie hadcooceal'
ed one jot thereof, as he was bound in daty,
And so seeing tlie gloss and comueotar of
bis knowledge of the said libri, must alvays
be referred to himself, and not by ilie gin*
made in the Dittay, importing no less than tba
lost of his life ; the said reply ougbt to bs re*
pelled, unless it were alledged that tbePanndi
by bis knowledge and by his undcrttanding,
had perceived the said hbel to be as the Diltay
bears, which he professes he never did. For if
nronnd hold, that all men readiiig writinp
1 have a like knowledge thereof; and that
any reading a writing should understand all tbe
sense or commentaries that could be nude
thereupon, or else to incur such painsasmigbl
follaw; ibis inconvenience might ensue, thai
bairns, or mere ignorvnts, or fods, reading •"*■
tingaofthii kind and nature, might incur the s^
same dangers; which is a great iticouvenieiiec,fw
certainty they know no belter; and bv ibeit
kniiivlcdge they apprehended not the danger,
which wiser and mora teamed me* prying mn^
narrowly thereinto, did perceive and find out.
For it has pleased God to give every man his
own particular knowledge, and not all kliowx
ledgo to one. And iscept it were repbed, that
the Pannel either by word or writing bad sigi»*
tied or eiprcised any other knowledge or oMt'
ceptton of the said quaiielled writing, •'"'^
nay verify against him that he ackn>>*ledgFd
the same to he scandalous, M the Dittay baarii
tbe said reply should be repelled as irrelevant.
And tbe conception and knonUd)teof (hesaia
■iiio^ must necessarily he referred to tbe Paa-
wn declaration, whose life and IbrtuD*
be taken away upon another man'* «»"
position of a writing, which the Pannel is con-
tent to make faitli thnt it never entered in bis
judgment nr sense to know that tn hs^e he«
the meaning ; which if he had knbwn, he coald
not but at the fint view have fulfilled and obeyed
the law set down in tlia soida acts, as his di^o-
sition,and his carriage, and bish.gonead.oni
clearly evince.andnrada nnfii rtherquesliomng-
In respect trhercof, tba anid rejdy aught V M
nel's
i»]
STATE TEIAIA lOCBMtBsI. lMi,'^or a lAtl
[6da
lepdled, u altOKcUier &T«le*ai)C, fur die m-
•uDii before aiUdf^ed.
Axl where it is rrpbed lij m; Loti Advocat,
Tbu tbe giviii^ of the said intamoua lib«l b;
■be pamiel to the ntri of ttodtet, U de facta con-
cealinf , escepi ih* laiiJ mrl were sacb a penan
to whom ilie net lyes cbe bearer to reieal ;
which he is not, because he"
Juplved, Tlia
pi; is nu waj^s rdevant, iKcai
theg]
act of pBrHemeni
i albeit the said
exprcsm a number of kinds
whom the crimes pro-
UbK b; the said act are to be revealed i jet it
esclndes not other peraoni.bat tint lucb (Tiices
IIU17 be revealed to them at well as (o (he pen-
■ooi eootaincd in the act: and ihe revialiog
tberaof to other penoiia would be counted good
aetvice, and not taken fora&ullinthe rtrealen
SMondlj, The Mid earl, to wbon the saul writ
was revealed, albeit he he Dot pric^oDnsellorj
jet hj the laws of this coentr; he is born a
(nonscltor, and was so at the mnLing the said
act, as all the earts in Scotlaod were then : and
tbervbre ifae rerealing to the said earl may be
ttiiuai to bave faeeo done cnnform to the said
•ct. I'lnrdliTi The laid oarl is ane shMilT, and
hj the act of parliBinent the saids crimes are
ordained to be revealt^ to sberiSs, ai one of
the pcnou* raeDtioned in ihe Mud act: and
tbercAire ihe dehiery of Ihe said quarrelled writ
to tbe «url of Rulbes by the pannel, is clear re-
vealing and not crmcealiDg ; ai the least is such
mealtn^, ih.'it in law and justice should liberat
aad free the pannrl iioia the eriftae libelled in
ibe dklay, and from the heavy pain thnt follows
dtertapoD, being no lets than ihie loss and tin-
Mi of Kit life.
And where it is replied hj my Lord Advocat
to that part of the mid delence, bearing that
the act of parliatneiil ia of uotoriouk and known
•rdkion* libels, and nOt of daubtsome and am-
biKiKNls writs, which in reading may suSpr di-
ven senses and roiistmctionB, uf tbe which Inst
kind it is alledced that the writ qnarrelled is:
to th* wbicb it IS replietl) ' Vbi lex nan diitin-
* guit. Deque noa distiiiEuere dehemus.' And
•c^S the act coKprchends leproachea and
•CHOdaloufl libels, wluch are rcBllvs'i, (t non in
OfiMioKe ; Ihe judge and a'syze should proceed
according to the thing prohibited, end not leave
place to the reil of i>)jinion : To thnt pari of
tbesaidrtply it isduplycrl ut lupra, That albeit
tbe said art c«ruprehendi refiroachrul and scan-
daloua libela, winch are really so ; yet it follows
not, for the reasons adduced in the Sr«t duply
made to my Lord Advocac'e firit reply imme-
diately preceding, which I here repent 6rm7a(ii
rstrSB ; for here is all the controversy, Whe-
ther my Lord Advocat's npinion in the dittay,
«r the paiiael's opinion in the defiance agninst
tbe dit^v, ihaU carry tbe createst farce, M«ing
ibey are both different apinions. And it seems
pMst favourable and most reasonable, that a
s bfe being quarrelled nnd drawn in
I and hazard upon the interpretntinn
and comnientary, that the pannel should haie
thsfnivenoeuiejntlw intrrprctaiioD, for pre-
servation of his life, honour, and estate ; c^ie-
cially in respect that it is not only simply of.'
tiered, thst be would declare tbe true meaniiig,
which be alwayi knew and undeistood, of the
said writing, but tikewiie ofTers to makt taith
thereupon. And as this is most reasonuble, so
it ou^bt to be favoured upun the pannel's pari
in this cnse, so heavy and so dangerous to biini
for it is not denyed, but the act prohibits the
hearing, having, conoealing,^ &c of infamoul
and scandalous writings ; but this writing qunad
nun cannot lie called so : nather prohibits ihe
act, that taadets of such writings should uther-
wise read, know and oiiderHaad the same, nor
accordb^ to the knowledge that it has pleand
Ood to give I hem.
And to that part of the Reply, bearing that .
the Pannel cannot pretend ei.cui:e upon the un>
certaiaty and ambiguity of the said quarrelled
writing, because by tita first view it itughi and
■hould liave appeared to him to have been of
that nature ; albeit io libels against subjects
there might be some excuse by reading, retaia- .
ing, and looking upon them; yet the pannel
cannot pretend ignorance after the receiving
(hereof ~from Haw, aud commnniciuing the
some to the earl of Rothes, that they found it
of such a slcain, lis should not be presented i
It is dnplyed. That ihis part of my Lord Ad-
vocal's reply doth unwillingly force Che pannel
to foil upon the exposition of tlie words ai tbe
said hhel; which cannot be eschewed, in
respect of that part of the reply, bearing that
by tbe fint view it might and should have ap-
peared to him to have been of tbe nature of^a
seditious libel : which (he pannel t)atly re^tiaes,
and is formally contrair, becau«i> be never tods
it to be 10 ; for the lint words of the said
quarrelled writ ara thir, (these) ' To ihe Itingf*
' most excellent majesty, l|ie bumble Supptica-
' tion of the lord* and other commissiOBcr* of
' the late parliament, humbly sbeveth,' &e.
And these being the lint words of the sud
writinr, if in reason (t may be affirsted that tbe
pannel cannot pretend excuse, because by (he
Srst view that writing containing these words t
if, I say, it ini^ and should bave appeared to
him to have been a seditwug writing, the pan<
nel remi(s himself about it to (he wise and 1
judicinue ddibaraunn of tlie judges and noble
auditors. For as It hat been oft said before,
end now not to be repeated, (he pannel dedaeea
tlia( he never took (he said writing in his opi-
nion and judgment for any other kind of writing
or libel, bat for ane humble lupplicatton anil
remonstrance, in all humiljty to have been pre-
sented 10 his sacred majesty ; and which accord-
ingly was delivered to the earl of Rothes, to
have been presented and by him offered to hi*
majesty, and refused in manner contained jn
my Lord Advocat'i own declaration of bia sa-
cred majesty's own speech and wordf uttered
to (be said earl of itoihcs, (he time of the of-
fering thereof: wheroopon the pannel takes in-
struments. And BO the said quarrriled writing
not beine at the lirst view sedii lous, as is hbelled
in the dittay, and coniabed in the reply, but
667] STATE TIttAIS, IOCbau-esI. IKt^.—Tie Triai <if Lord Batmerao, [666
in the said first words being 'h most humbly
•applicntiuD; the paunel mosc jnstly pretends
eicute, iliat teeing dejacfo the said first ward«
■e not sedttioui at the first view, that therefore
liuus writing ; but ought to be suffered and per-
mitted to maiie his own intcrpretatioD, that he
nerer thought it so ; and therefore caimot be
punued cnminoll; upon his life therufbre, as
the diita; bean..
And at that part of the Ilepij', beating that
albeit in libels against subjects there might be
le by reding, receiving, and looking
receiving from Uiiig, by communicating tlie
same to the earl □!' Rothes, that thej found it
oftuch a strain as sliouldnot be presented: to
tliat it is doplytd. That the saidi depositions
make nothing against ttae ponnel ; for the pan-
nel did nerer deny the receipt of ihe said qaar*
railed nritiiig fmm Haic, our that he did com-
municate the same lo the earl of Kotbes, and
(hal tbej found it of such a strain as should
not be presenled. But the times being dis-
tinguished, the doubt is soon solved^ for
the depositions apparently express not the
times. For the paunel did not depone, That
before ddircry of the snid quarrelled vribna
to the earl of Rutbes, and before the earl
of Rutlics his intended offer thereof- to the
Ling's inaJeBty, that (hey found it of such a
ftraia as should not be presented : but that
cuiit'erence betvvixt the earl of Kotiies and the
pannel, was long after the ioteoded oScr and
refusing. At which lime, upon the ocouion
pf tlie liarshneii and miiwoD si ruction of some
words, that speech was uttered betwiit them ;
niid from ihit time furlh, nothine further fol-
lowed. And therefore tlie pauoeV's deposition
niakes nothing for the said argument. That
the penntfl could nut pretend ignorance ; in
reepect whereof, the snid reply, and hail mem-
bers thereof, ought lo be repelled.
It is farther ituplyed by Mr. Aleiandtr Ptar-
fOM, That where ii is rephed by my Lonl Ad-
vocDt, that tlie panner* opinion of the writ-
ing, and the alledged probuble cause of bis
iguorwice to be n' scandalous libel, adduced,
cannot defend the pctoilel from concealing,
&c. because tlie wrilinn in itsell is renlly scan-
daliiu*, and at the first view miiiht and should
have appeared in that nature id any man of
die paiiiiers underHatidirig ; and who can prc-
teud opiuiou * nesciendo l>"C quod onines
'sciuntr It is answered, I'bat tlie paunel's
opinion of the writing, and the probable causes
of bis ignorance of Oie same to be scanduh.us,
does defend the punnel from the Crimea li-
belled, not only f.ir ilie rea^ius and luws al-
ready adduced, in tbemutcer <>f injury and
o.ther crimts, wliiiJi are nioit preguait; hut
also because no capital crime ohutsoevijr i-
or can be committed tine dolo, whereof the
pannel is altogether fice in all sorts thereof;
■ £t a ilolo vero at m dolo prsnimpto ex ijiAli-
• tate fncii.' ' A dolo vero,' which the nannel'a
bnocent intention eviiiceth in the aefences
prop<>oed for him in the second exemption ;
and there he is patted abundantly, for the rea-
son* contained therein, which are here repeat-
ed brnUuHt caaia.
Tliejustice and Assessors conliaues this Dyet
till lo-morrow, the 13th instant.
Curia legitimte alHrmsta, the said ISth of Dec.
1634, &.C.
It is alledged by the said Mr. Alexander
Pterin, and duplyed by ibe pannel. SeeuutLt,
That the said Pannel is free ■ a dolo prae;umpto,
' quia tunc prasumkur dolis ex qaahtate fiicii,
' ubt quis fncii quod scit *ri scire debet se uon
' debere facere : At in propoiito nostra nolln
' ncc ignoranba ^os quod oniaes ioteU^unt.'
Rut most just and probable cause of ignorance
of the writing lo be scandalous, which woald
have afiiKtrd even the wisest and most sagaci-
ous then; although aawe< pmtfattt, by preg-
nancy and viracity of spirit, the writing quar-
relled being searched unto exactly, ibe satne
being interpret by the dittay, and ur^ed
upon the paonel as seditious ; which iutee-
pretation now of it, cannot make damDahl*
the estimalioQ and opinion of the mating
quarndled, which it had of before aniOD^t
men of comoMn understanding, lo make culpa-
ble of capital crime : ' quia injurianioi ssti-
< mntio nnn Addit tempus quo judiratur, sed ad
' id quo (acta est refarre debet ;' Bipiessu Leg.
31. c', de Injnriis, '£t nunqnam creseit es
' post facto prEteriti delicti leitimalio.' And -
it is hard that the panuel, upon error of judg-
ment, should incur capital puoishment.
Where it is replyed by my Loid AdTocat,
That the pannel cannot pretend ignorance of
tile writing quarrelled, becaoia by his deposi-
tion the Tth of June, he has declared tbat he
thought it not fit to be presented to hii ma-
jesty; It i I answered, That the replj is not
relevant, and that the pannel then thinking it
not lit to be presenled, hinders not but the
said writing being thought fit by otben lo be
presented to his mnjestr, and indeed ofi'ercd to
his majesty, the pannel thereby was confirmed
the more to thiol of it as a supplication, end
may make the defences thereupon, bis credu-
lity foresaid.
Where it is replyed by mj Lord Aiivocat,
' Quod omnis ignorantia juris est improkaliiHt
' et punibilis,' and ihnt the pannel can -pre-
tend no pmbttlile i|[nornnce thereof; It is ui-
snered, That tlie addition of the net of pariia-
nient 94, aneiit concealers, whereupon this
part of the dillay is only founded, had never
•trength nor vignur of law, (nerer being yet
priicttsed against any tince tbe finf inakin);
thereof) hut being us it were by desoetude
nhohshed, tit lupra in our firsi exception, shewi
that the ignorance tliereof ii ndther impntba-
ble, nor ponisliabte against itie pannel.
Where it is replyed by my Lord Adrocvt Ca
STATE TElAlS, IoCuablssI. ]es*.—ifor a Libel.
tbupDTtof tlie fonrtheiceptioD, bearing '-quod
' credulitas id fiirtii [inEbat cauaam probBbU
< ]«m,' and that b^ parity of kskhi it shoold
have place also in themaiterof inramouslibeb;
lo the which it it replied, ' Qaod illn creduliisi
' aliter probaadn eit qoam per juratnentum
■ rd:' It ia answered. That ibe Panuel urset
not his credulity of the writ qiurrelled upon his
own Declaration, only, bot also upon bther
circnrosMiices, evidences, and pretumpttnns,
alreadj adduced in the said foiirtl^ e:fceplion
and formerdefeDces; which dearly evincoa the
pannel's credulity, and the jennns thereof.
Where it is repiycd by my Lord Advocnt to
that part of tb* eiception, proporting Ibe words
of the law where it is said, ' Ubi de obligando
' et libetando quaritur, propensium eue debe-
' mas ad liberandum ;' ' to tha wbicb it is reply-
ed, That the law cited has no place in clear
ond manifest crimM, as this is : It is answered,
that the reply takes amtrvveniim pro coiifato.
That the cnma whereupon the pannek is ac-
cused is clear and minifpst, which it is not;
bucio the nolioQ of a crime (if any there be,
wbicb we do not grant) the same is mnst ah-
•trute and obscure : and if any cleamess be,
it i* for the panncl'* innocency; in reipect
whereof, the exception stands releTant, notwiib-
itandine of the reply.
I further duplyed by Mr, Roger Afoaut,
lotben
O that
9 said fourth defence, betuioE that
tl>e pannel is not panishable for not appre-
hending and not reTealini;, upon an act become
in desaetade, became iheleidgis are ruled by
the Uws of the kingdom, as the acts of k*.
Jameal, and L Jamea 4, bears; andlhattliere
is no prescriptioa in lawa, and thru ' omnia
' ignorant iajuH a est improbabilis et puiiibilis.'
It is duplyed. That albeit the Irid^i are and
■boald be ruled by hia majesty's laws, yet
where lawa are become in deaueiude, and have
never been practised, tho leidges ought to be
certified thereof, and new intiinetion ouglit to
b« made, as in ibe. first defence at length ia
contained. And neitbct of these can be ol-
ledged in thia present case; and therefore the
dangeroos conaeqaence of tbia and tlie like
laws ought to be prevented before the same be
practisfd, which is the mind of the law-giver.
Aod to that, bearing that there is no prtscrip-
tion in laws; a ia duplyed, that desuetude
must be estimat equipollent to the prescrip-
tioDoftaw* obscure, or that are not in daily
custom. And nhera it is replyed against pro-
baUe ignorance, ' Qaod omnis ignoran tin juris
,' est imprubabilis et punifailis;* it is duplyed,
That ' igooEantia juris in damnis vitandis nan
' DDcel :' and ibis is our case. And where it is
tcplyed to tttaipart of the said fourth defence,
baiinB Ihattlie pannel had probable ignorfince,
the defence oi^lit to be reptlledj because the
nature and strain of the quarrelled wriiiDgmuit
be ilie Vule of (be punishment or impunity,
.»ai Dot the opinbu of the pannel; ' Ecquod
' eat ignoraniiu raaxitne iueicusabilii nescire
' koc quod omncs tciunt :' it is duplyed to Uk
[6711
said reply, That the paiine! still 'contends chat
the nuijr« and strain of the supplication quar-
relled may be the rule- of his punihhment and
impunity, according to hij npinion of the ri;bt
meaning aod scuse that he made thereof, for
the reasons already adduced in the fonaer
duplies immediately preceding; wherein the
paunel coiiteoda, that, with reason be liiinself
roust be ttie ortly trucheiuan and interpreter of
the said writing, in case any other commenlar
or interpretation be made thereof, contoiuioe
sucb a aeoae and meaniug, as being received
him the punisb-
a here repoaled'
replyed. That the Rpiiraachet
le of his judg>
refuses his having knowledge
proaches, and professej his ignorance thereof;
albeit he read the same, and others likewise of
better judgment than bimaelf, who did never
observe nor find out the tike, according lo their
judgment and untlentanding. Wbich re-
proaches and scanduls, if they bad perceivel
and remarked, (as they did not) would Lavs
touched them as near as any nttier of his ma>
jetty's suljects whatsoever of ibeir quality or
degree : bui seeing ihe pnnnel, and the rest of
ihe hearers and harers of tlie said quarrelled
supplication, pretend their ignorance fore^.i id
of any such knowledge, as is now eipresstd in
the said dittny ; the pnrsuer can never be
beard lo force any other knowledge upon tjiem,
to that end that tbey may be found guilty of
the crime libelled, and punishment of death
therefore.
And where it ia replyed. That it is ' igno-
' rsntja maiime iueitcusahilis uescire hoc quoil
' onines sciunt;' it ia duplyed, that my Lord
Advocat will dn well to apply that rule to the
present, case, and thow ' quod lit hoc qiKid
' ooines Eciimt.' Fur if hrs lordship means by
hia dittay, then that rule can hate no place
here,, because no man knew any tuch glosses or
interpretation of the said supplication, but th«
pursuer himself, before the coining forth of the
said dittay. And if before that time nutny
were of another opinion, concerning the mean-
ing of the said supplication ; then my Lord
Advocat cannot be beard to say, that it wu
' ignoran tia maiime IneirosBbilis' in the pannel
' aescire hoc quod omnes sciant,' seeing no
man knew that which was set down in the laid
dittay, but my Lord Advucot himself: ao(l
many knew, and yet know, that tlie said quar-
relled Supplication in their judgments and con-
oeptioos carried with it no sucb meaning or
And where it is replyed, That the Fannel'i
Defence, founded upon, bii depositions which
he made voluntarily for satisfaction of the com-'
mittee, cannot be respected, because the moat
substantial parts of tiw diitayare tbunded upoi
the said quaiielled supplication, and not upmt
«n] CTATE TRIALS, 10 CliAkLU i. \63i.-~Tlu Trial <f Lard BabKriaOf [m
ths paiintl'i dapoutraitB; and that bis denial
of knonrledBa by outi, ninnot liboai bita fri>m
Iha pain of daib : It a dupWed, 1'faat nlbeit
(nanj labltancial points of Loe Mud ditliij b«
fbuuded upon ib« >ald tupplicatuin, jet (brjr
VB fuunded upon tba pannd's depositiuni
tbo. And albril ihc toid ditta^r quarreli and
inpngna liie s:iid supplication in sundry pas-
tago, whicb ibe paDii«l dach not maintain as
they are cipreiBcd in the diltay, becauw when
he aiid the oilier supplicants read and heard
the said sujipticHtian, tbej found DO aucb mean-
iog in it; and they leave ibe deAace of that
commentary lo the author himself, and declare
ut lupm by their judgment tliey found it not
•f iuch a strain as the ditiay benn : the decla-
ration tnifhl nuw lo be received, fbr cleanii|
of the pannel and reinani^nt supplictints from
all suspicion of Buch knowlFd);e as the ditlaj
bean up'>n theoi, for ilie reoaous breiaids, con-
tained m the former defences and duplies, in
recpect wh^ceof, Che taid reply ought to be r»
pelled,iii reipecCof the saididt^iniitioDt already
^fen, and of \he pnniicl's declaration upon
oath, which lie now oFTera lo |;ivB.
Where it is replved Co that part of the said
Defence, bearing that albeit the aaid nlledgcd
libel should be now found to he infamoui, yet
cannot be drawn hack, that there needs no
declarator of the judge; consequently mny bo
drawn back, because it wns iiifnmous from the
b^inning : it i* duplyed, that the defence
itauds rclCTant nolwithitnnding the reply.
Whicb defence bears expressly that the pannel
Mid othef supplicants received the said libel
(ouw quan^led) ai an humble supplication ;
and in ^Jken of their«aid knowledge addressed
the same to be presented to hjsaacred majesty,
as tlie said defence beats. And so whi i has
baen found out since to be therein by the pur-
■uen, and those of deeper wit and bnuitledge
titan the pannel and other supplicants, cannat
be laid to their charge ; for whom all prc-
■anptions are moet clear and evident, that
the pannel had never so much as one thou^t
tfr opinion, as is contained in die dittay.
Where it i« replyed to that part of the ei-
ccptiou ibunded upon the instance of treason,
M the same bear* ; it is duplyed, that my Lord
Advocat in that answer takes eoatnnwnuin pro
eanftaio, ever taking this for a ground that the
tupplicatioo is seditious and scandalous, and so
|o be reputed and holdeu against the pannel
Hd others in like case, which is stitl denyed,
jhr the reaioDi before adduced. Where it is
saswered by my Lord Advocat, that that part
of the said defence anent the revealing to the
earl of Hollies ia not relevant, in respect of the
act of parliament ; it is duplyed, and ought to
fae repelled in respect uf the tonuer duplies aa-
•waring this poioc, that earls, the time of m^-
. ing the laiti .art, were bora counsellori; and
that the cari of Rothes was a sheriff, which tbe
And nbere it ii replyed. That tha offer ID
1m majesty (inn relvoat, eseepc it vroreaUedged
ibM 9t oSmd it ■■ ft scaGdaloni libel; it is
duplyed, that t ba said reply i| ilo w^yi rstevaet,
btcause it was latticieui by preseutiug it to
his rayaj majesty ti> reveal the saow id thst
mauaer: and iicHimot be uuw known whethsric
would have been so thounlit hy tiia sacred wnf
jcbty, altieit be relMcd tb« taaien ; but it it
certain liiat the panod and the piesenlei would
never have presented the same, if ibey hud
(bnught it scaodalnu!. And that part uftl*
defence, heeriog that it was revealed by the
presennog, needs sot to bear that it waso^nd
to be preientixlaatcandaloaiifcr that was not
their end, naiitier had they any sach aieaani
by ibe said presenting ; ibeir iolentioa bnn^,
ai IS contained in the said defencr, to haie it
presented as an Immhle lupplicatioa, (o recntt
a gracious answer, as aChrr remonstnuKei kid
gotieii before. And so there ia no necetiiiyt*
alledge it was to be presented as a scsadakiys
libel.
And whtre it is replyed. That (graatiif)^
aaid revealing Co hia mqesty might have kta
sustRincd as lawful, yet the panad i> (uiky of
death for not opprcbeading ; it is duplyeil, itit
the said reply is not rdevanl, bocause ii tkt
■aid reiealing was Istwfnl, ergo there was a*
neceseily of apprehending ; for tbe words if
the act of parliament anent tbe prohihitiD*
are alternatiie. And albeit, » it is antwircd
before, ifaat the pahnd timugbt Mr. lUig to be
Buthor.yetin respect of this cnneeetiunoftlit
said libel, he thought him not to be Mch a*
author as merited apprelieoaioa, liecaaie iht
said libel in his opinion fdl not within the tut
act of parliameoL Altd rqieati his former »■
Bwer, and the two practicks about the ap]it»'
bending of free leid^i adding iherEeaKi tbs
late lord Maxwell's practick, who having appre-
hended by virtue of a CDOimisiion, was do*'
nithttandiAg forefaulled therefore.
To the reply, bearing that my I»rd Advoot
granted that the drcuoutaat^* of tbe receirt
of Haig's (ettet are not essential parts uf tM
dittay per *t, bat used at adntiniciCs m aigia-
" the pannel's tziine of not appiehcadiift
it is duplyed, ibiic tbe panoal and bis proi»-
rator* act^ptof the aaid answer, and fvaut
that no respect be bad thereto, m ane wsrMid
part of tb« diltay. And th^ alletlged enr-
respondence is uo wayi relevant, not heuioc
that the paonel did write Icttvi to Hai^ i 1^
correspondence muM be mutual, c'^ ^
Where it is repM, '
'ci' to produce H.iig;s '
That it is ' maxime hujus
cd, if that pan of the Ditxay ftmnded upon
it belbund reletant, bccanae they werealrndy
produced by warrand of my Iiord Justice; and
being DOW produced, nothma sbalJ be frand ia'
them to CUT7 any watrand Kt tlmi part of ^
said Dittay. Attd being produced to Uie paa-
nel. and his prscmratora br ibeir iofotmitiM
antl defence, must vtt be prodiioed to be cstt-
pared with tbe Mid Dittay. f <K if 0»] tb"
«73]
STATE TRIALS, IOCiukUsI. ](13<I.— >r d L&f.
' Cad titU the Diitay and tbe Letter cl« not
•grae.tbea tbal part of tbe mid Ditinj fouiid-
■d upoD tbe said miuive will not be su&uined,
and M cnnnnl be put to (be knowledEe of an
iuqueit. lu mpect wherenr, tlin liiyl replies
■aad all Um meuiben lliereof anght to b« re-
pdUd.
It a dupljwd bjf Mr. John NuttI: Whore
it i» T«|>lf(!il hf iDj Lord Advocut/That tbe
dilute agoiiiK [be rcler.-uicj uf ihe qualifca-
itnii it supertiuoa^ became ilie grDenil rab-
aumpttoa coBfiiJnn tu tlie ^cc of paiiiamcot ii
ptr tt relevimi : ii ia dupijed, Tliat tbe gmc-
lal ii not icEeTimt, ' c)uis iion opunet in chmi-
< nibtu Tigari,' Leg. Libeliorum, P. de ^ccu-
•KionibuB; ' £t locug, et (empuijCt mwiuin
* delicti expiimeDila luiit ; eliiiqai accusatio
-' ip«o jore «*t duIIo.' Clurui, i final. Qiueit.
.H,<Mni.«.
Wbcrew it i« replyed by my Lord Adtocat,
Ibtt tbe Dittaj is not contrair to itself, be-
catne of the acqunlutin); hia majeity by my
Jonl Kotbei'a means does not eipiat and purge
tbe Ggnceilin);, liiy lurd Hotbet iiot being one
.of lime penoDS lo wbom ilie delaun of aucb
piece*, and aulbors tbereof, ii appointed by tlie
act of parliament: it ii duplyed, Tbat iheae
panani are «tily apecibed for receiving of tuch
detatiuRS in tubsuiitim, where tlie rertaler
knowa not any other nmunar and tecret way
to acquaint iiis ainjnty ; and not to tje them
la aa unneceHarj circuit, where by a more
oompeudious way hfi majesty may be acquaint-
ed, and the authors iiippreit. And we repre-
■eBt the incoDTesieot to ensue, if parties by
wbow means his luajuty ha&.been acquunted
tnth pieces of that kind, shall be obnoxious to
the pains of the act for not seeking it bniliy or
«bertff, tu tell unto them lljat nbich by other
knd inoie direct means is >tiown to bil majekty.
Wberaaa it is replyed by my Loid Advocst,
That the bci$ of parliament require not a judi-
cial declaiMor or tbe nature of suob pieces, nor
the firmer knonledae of tbe pnrty challenged,
-but without diitinctuin punish tbe not rereuers
■od not Bppn-beuders of the authors of pieces
materially seditious; ' £t ubi lex Don diuin-
' cult, neo no9 distinguere dehemus :* it is du-
p^ed, Tbat statutes being pariiiratar coDcln-
■ioiu of law, presuppone prineipia aiUvenalia
<( prima, uid imply intrinsecally the commoD
notumt of law anti reason. And therefore lee-
,iag in reason there cannot be a crime of con-
.ccaJing, unlet* the piece or author alledged to
be coocesled were either declared to be, or to
the panuel's knowledzf were, luch as be oogbt
-to reveal, because ce/are'is relative to know-
ledge ; it is not relevantly subsumed that Haig
was author of ane piece materially scandalous,
■and titat the panoel revealed bim not, unless a
former knowledge were assumed ' likewise.
And the law iisdf funuBbeth a ground for this
diitinciion, hMaute tbe word ' concealing' iin-
poitetb knowledge : ' £t itntuta punientia de-
• licta ispitaliter mm habeot locum nisi dolo
' iaterveoieDie, etiam qnod de dnio non fiat
' insDiio.' Pnilaa At uoitro in Lage Nemo,
VOL. III.
{£74
nam. 5. Codice de Ejpacapis ct Cleticit,
< Ubi perstringit imperitiani juclicum aui verbis
' (talutonKn mordicus inherent, et hiauo.niRgii
* cuui dolis requirilnr, tel exprease vel tacite,
' tunc eniui nee lata culpa sufficjt, tacile ao-
' teal requiritur .dubis, cum stntdtum utitiir
' verbb, nullus audeat rel prtesumai.' Which
are eipresslj in the act nf tlie 10th parlwmont ;
and must ol' necessity tie considered to undcT'
stand the addition cnniained in tbe act trf tbt
l*lh parhament ; ■ Idque muUu magis in de-
' iiciis qux de Mia naiura requirunt dohina
' prout est falsum injuria el limilin.* . Phar.
Quaac. 87, per lotom. Whereat it is replied,
' Quod judex debet procedere secundum Dail»-
' ran rci prohibits, and ihould not lenTa
place to rliftlc the lair tub reia opinianii ; it it
duplyed, lliat by all statocet ^f tliai nature
crime* are only oKiuCed and prohibited •. And
tbe judge thoold proceed lo try whether rrimes
he committed, or not, and not lo conilpma
escape* or errors of judgment, whidi are not
arbitrary to the will lo slwn, but depend upoti
the dijpositioa nf organs and rrpmtntation of
fsniaams, whirh are exhiljited ■ ab intelle^u
' ngenle,' and < nece«iitare intellrCtUBi patien-
'tem,' to fine assent, where it it fantitbed
with no prabnble grounds to elid^ the tame ;
at is known even to the noricet in philosophy
by that tnvial m:i<iai, ' InteJlcctus per atsek-
' sum pra>mbtarum convincitnr ad assentien'
' dam conclusioui, taltem quoad ipecifica-
' tionem.' And wliere my Lord Advocac '
would eipoie the weakliest of the pannef*
judgment m not ditcorering the nature of sedi-
tiooB pieces, to anlbrce tbe panishment of a'
crime, it it duplyed, Tbat llie law it not eladad
by the slender* pretence of opinion ; but th«
^annet'i conception nf the piece, verified by bit
oath, and by all pMtJble premmptioni, whirb
we have at length deduced, must liberal him
from tbe guilt and pnin of the crime, leebg ia
law '
conaittit,' verified by tlie onth of the party ;
and an<r attisting presumption imporlt abtalvi-
tur, as ii already tliewn by the foredted laws,
and the harmony of doctors. And whereas It
is replieif, ' Quod ignoranliajutig non eicutnt
' io delictis Btrociiiribua ;' it is duplyed, That
' ignoroniia juris ' being at the most ' Inta cul- '
* pa squiparatnr dolo, et n'>n cxcnsat in ac-
' tionibui descetidenubus ex cont^u^cu, vet
' quasi, ted excusHt in crinitiihus vel delictit,
' quia *olnnta<, qum malelicin distinguit, 'pee-
' tatur, non Veritas vel eiitos.' Leg.' Diviit
Hadrianus, F. ad Legem Cnmeiiam do Sica-
riis, Phar. Quieat. 87. ' Ubi regulariter do-
' lum requirit, et ubi abest dolus, ptenam at-
' serit ccasare, idque etiam in crimine Icte; ma-
'jettatis,' num. 10, er per tntam. And the
atrocity of tb« crime excludes not a probaUe
'Quia causa qu^libct, e'
credulit)
•Etw
Phar
s«d colorHtH rt irratinrinbilia Iran etiam tcrna-
' rariaet beitialis,' Idem ibid. nam. S. UU
refert doctoitt woMMlaatti Clsigdiw BttPMl*
It Tol^ notwitfanaadinj; of
675] STATE TltlAUS, 10 Chahles L l6U.— nie Trial <f Lord Balmimo, [6W
tliti-pannd'k conc^ion ihrrenr, becaoM k i*
only reqiiirtd (li:it llie pirce thould be rcallf m-
the iiitFoiion uiid cnnception ia mtnt contidtr-
ftble, ni ii alrcudy iiiculcat ; and wben lh«rc ii
■.qucMion ■BeiH.'lhe ctedolity of die pxiir, liii
ciedulity is prubnlilc l>y oatli, Barad. ^ Krcte
l^ge mieromncs,-?. derurlu ; es|iecinllf nbert
ibere concur tame prcsDinpUoiK. Whcieai it
is replyed. That ' i^oniniui aJi iiicicuwbilit
' oeKire quod omnes sciuut ;* and Uat [h«
paniiel'* narron ailvrriencj aod canvaubg of
the piece challenged, in leading, copying, ad-
rising, interlining, juined ivith hia opinwa enent
ihe prrstutaliaii tlKreoF, eidude* nil prcsBmp-
(joDsqf ignorance: it i> dupljred.tbatic wonot
be laid ' quod omnes iciuni,' leeinf; in; twd
Ilathe3,BDublenuui (rfemiuentqi)Bliti|ani)>u^
Griency, made offer, at least menlibn iheregf,
ai a Bupplicntion to>iiitnejeity,fortliepaDii(^'i
opiniiin. It ii already nuswered fur bif per-
pending of liie piece ; it t* >o lor from ififf*-
voting or conviucioi; lit* knowledge of the piece
to be or that Daiure, ibat he is confident that
indifferent nnd impartial judgmenis, ibe mart
they advert to (he strain.oi' it, ihey viili be the
mure edilied nf the nature of ii, tbat it ii not u
notLourty injurions. And tlietefore the panntl
protests tbal his procurators may rindiciie hii
cnncepiions of it, and remomtraie tlie Mnoga
infeienccs that the Diltay niaiieiorit. Wbeif
it is repljed by my Lord Advocai, That appte-
hendiug itwarranied and enjoined by the adi of
parliiunent, and tlierernre not dangerous; it ii
duplyed, That appretiendiiig is wairantedj vbeo
partie* are able^ by lanful prohaiian, la bind
opon lite persons apprehended the guilt of lb*
crime fur nbich they delate and apprehend then.
And that even in' the crime of lese inajesl}
tberc la no warrant to apprehend partie*, ubut
knowti to the apprelienders guilty of the crinr,
unlesi they be able to qualify and praie llie
guilt, under (lie pain ot lau^wniia and reta-
lintion in case ihcy succumb. Where it is re-
plynl, That tlie most material pirU uftbe Dit-
tay are f'lunded upon the nature of the pieei
iiielf, and nnt upon tbe pannrl's deposition); it
is dupl,ved, 'Ihat howsoever tbcre mulls a rele-
yant defence in law upon the patinel's nbra'M
artimi, which is probable by his oath, assiite^
wiihpresumpiinDs; and is admitted iu the BiO)t
strict inquisitiuns, as is Conuiint hj Ihe nnifona
and constant harmony uf bII crituinallilt.
'H'bereHS it is replyed by my Lord AJvdcat,
That there needs nm a declarator of tliejui^
to be drawn back; it is duplyed. That in all
counlriei where the concealing oi heretic boati
is punished, a judicial declarator is neccsiarilf
required; and the private opiuioo and mittft-
ing of pnriies before declarator was uevtr ceo*
surnd, much leas punished.
Whcreai it is leplyed by luy Lord AJvocat,
That the raaxiiri, ' I'roniores debemuj e«« "1
' liberanilum non babet locum in attDciuribut
' el deliclis contra pnncipcm ;' it is duplyed,
TliQt we retort (his aoiner, ■ ubi lex nan ili''
' tinguit Dec diittDgueK dei»ca>D*> fit non de>
diK, Reg. ' Si fatua orcdniiia* a d<>!a exciisnt
' cum tehementibus priclunipliouibus pniba-
< lur,' nuia. 1^9. ' Et cnu.a leyis exeiL^it
' in crinune injunarnni, et ad excusunduin sul~
' licit error verus vel pra-suiu|)tu<.' I'bor. dicta
Qu««i. num. 39, ' Ei ley i9 ciiu-a excusat ctiam
' in crimine Iibis mnjebtalis.' Ibid. num. Sd.
* £t niulto magis in iis qui de sua nntura iiec
'dejureciyili reprobatiiiunt:' As is the points
of nut apprehending ii\d concenling. ' Ibi
' enim Jtiius non pretuuiitor, et si quis tic ege-
' rit sine dulo ct aniino delinquendi creditor
' agentis nsscrtiooi ex quo babet pro se juris
' pratumptitilleni.' Num. 14, et num. 00.
' El Ignoraniia juris cicusat a dolu.' Num. 91.
* Et crassa supiun et affcctata excusnt ex opi-
* nione. Bnldi et Tiraquelli,' quo citaf. num.
09. ' Nisi sint circa ea qua: sint de jure natu-
' rail geodum et divina prohibita.' Whereas
it IS replyed. That the pannel cannoc. pretend
ignorance in respect of the piece conspicuou^y
infamDus, nnU 01 the pannel's luiticiency nod
qiialilicHtions, and in respect of the person in-
jureJ, being bis lacred luajesly ; and tberetbre
excludes all excuse upon curiosity, or any other
respects, excusable by tlie law, and, ni List, in
respect of the pnnnt-l's rlisappruviug of ihe
piece in his own depositions: It is dujilyed,
That the piece ia not notlourly infiiniaus for
the rensont adduced. And here we proteei.
That my Lord Advoeat's odious decypbcriug of
the piece, iieceasilaies us to vindicate not it-
«elf, but the conception that the {lannel had,
. and that any man may have, tliat is not pre-
occupied with the unnnturnl glosses uf the
DitMy. Aod fiir the pannct's qualiticatioru,
it ayinceth that he would not liare delivered
n niece nottourl;*' iiifiiiuous to be presenicd
to his majesty, as it acknowledged by tlic Uit-
Iny^imd so to haye endansercii his lionour and
lite, if he had had any such conception ol it.
And for the panuel's disproving of ibe piece, it
convinceth not his sinisrrout intention in using
or having a piece disprovable, because it ia not
deponed that he disproved it as sedlitous or iu-
fuiaous,- bat ' quando lerba confessionis sunt
' dubia, possum etdebent^eclnreri etintcrpre-
' tari per canfitentem, et in nieliorcm partem.'
i'liur. Qu«st. 81. num. 38. ' Et cunfcsso du-
■ bia et iocerta iuterpretatur in bonam partem
* ill favoreoi confiteniis, et secundum iliius in-
' tentioneo).' Bald, in Lck. (Jnica num. 33.
Codicedfi Confessis. And the pannel declares
(hnt he disproved it not ns sodiiious, but lit to
be su|)pres3ed. in respect of his majesty's will
cxprosed to my lord Rothes aneiit pieces of
(hatttmin. Whereas it is replyed by my Lord
Advocat, That the defect of the common law,
in the points of concealing and not appreliend-
inc cannot be obtruded, and that there can be
DO pretcriplion of laws ; yet there is antiqut-
' ^uii and desuetude, as we have before shewn :
And [be defect of the coTiiuton law is adduced
H a pnibable candour of I he desuetude in points
debordine from the common law. Whereas it
if leplyea bj my Lord Adtocal, Tbat the n
MsraafthofUMH"" — ' —■■'— — j;--
«7T]
STATE TItUUi, loCliARLBsI. 163+.
rMponder,
-foraUhel.
LC76
' \iarfiit qal in rtubio contrn fiscai
F. (Je Jure Fisci ; ' et tarpe est c
' jurkMiDm credere iniencuin .^ui priiicipem oin-
* Dibui heneTacleiiKni, neniin*>in lederitcm,
' joria velil etlicerej ct qaa'is excusatio tl
' lerisiimaet maxime fatun in criminibus •
* cisbimU aHmlCticur.'
It IB added by Mr. Roterl MaegiU to rlic pre-
ceduig dupljes. That wber« mj Lord '
raplietb, tb*t ' juris ignorantin nan i
that the said rul« ma; be undemood
' quod ll«u invatoit :' for eren if in these pelt;
stMata anent the inflicting of pecuninl pains
contained in the 9ih net, p^. 81, lfll2, a new
iatimatioii of them is thought fitting lo put the
l^ga in nala fide bd«re they h« practi*ed,
nlEi (hen in ihis act, and some others, under
the conpas Wbeieof sundry here may fall, thulj
there not nn intimatioii'be required *here life,
hotioiir, antt lands, arc in dancer, nnd a capital
pain to he inflicted for to put Uie leidges in malt
fidef Item, Where it is replyed, ' Quod nee ig-
' noraDtia fiicti excusat propter prssuinptuin
' dolum ;' it is answered, that the pannel'i * ig-
' noraotin lacti ' ii ' ah omni doli prtEsuniptione
*aliena;' irbo could neier think that uniier the
gcnnal Ian, coaiained in tlie addition, could
come in all sort of inordinate speeches, and all
son of bearers, concealers, nnd not apprehend-
erii. And for the excusing of nny dole thni can
be pmumad, he ndduce* the knowledge of law
and reason, which ou{;lil to expone nil munici-
pal laws, Kf trsitetvr oAnirdani ; 'which is, that
■II sorts of inordinate ip(«ches or writs, evin
agaiutt a prince, and all concealers and not ap-
prefacndera, should be punished alike : For Cue
PtMor »ayi, ' Si quis adrerwit ea fec«nt, prout
' quaqne re* erit, animadvertam.* Leg. item
*{iud l.abioneui 15. G. ESI, 98. ' Ubide pce-
'narum distinctione ex circumstantiis juttn Le-
' |em aut facta 16. in principio,' F. de ptsnis,
' quam considerBtinne aflectus et animus faci-
' entis matimum habet moineDtum,' Leg. ilia
3. t 1. dicta Ler.. 15. ^ 38. Lf^e >i quis ccrtum
86. in fine, F. de Injuiiis. So that my Lord
Advocat's reply anent credulity, that it exrcscs
not, and that it is not a sufficient warrant ad ju-
rnwalKDi ptirgaiivum, and that it ouklbt not to
be here received ; the same oujtht to be repel-
led, because ' credulitas sive juscn sir causa live
' inJHsta cxcufat ubi <loliis requlriitir,' n> in our
case. Ularux, f iinnJi, (JuBst. (iO. num. 28.
' Et quod recipiatur jarameiitum purgativuin
' concurrcntib.us aliis nd aaiini bani probMb-
' neio indiciis conslatV per Phar. Quiest. 105.
lutpect. 3. post num. 111. ' Leca >ero judicia
' sufficere,' nil Alexander, Cone. 115. Columiia
penultinui, Vulumiue quarto. ' tit ft delicto
' etiiiui conventicula, et mals congrefatioois,
' caiisam vd leveni excusarr,' ait Cravetta,
Cone, 4. uum. SS. But so it is, lliera ntaj be
ibaiiy good reasons allcdged, nherefure the
panoel had a effid mind ; as, that all u bich is
in -this quarrelled petiiion, laiKhl hate been
proponed in patlianienl. And the rest of the
reasons adduced in my secood exception, ' adeo
*«t dolus non sit pnatumendM' against the
pnnnel; neitlier is llic arKutacnt good that (ha
paniiel diialtuwed it, or ihnu^lil it not lit for •
time, irgo he tliouelit itsediiious ntgnlnr lequi.
And because my I»rJ Advocal, in all the
mem beiv almost ufliis reply, returns upon tliis,
That the piece of tl^'is really seditious; and
tliat ohscuriij and ambiguity uf words may re-
ceive evasiun and excuse among sobjecis, but
not in tlio case <if the panncl t I answer, that
the eiceplion stands sond, nat<iitl»tuuding uf
the reply, in respect of the examples and cases
following. And, first, I confess that such iusr-
dinate speeches and writiii|s as were utiered
betwixt Catiline and his complices .against a
government, and against a priuce's prc^enitorSa
or liis person, in that sort are punii^haUe both
in the person of the spexb^r and peuner, os
also of the bearer, nut re\'enler, and nut ap-
pretiendcr; wherein the case of this addition is
verified; and no others are henrers, not ^e»ea^
en; and not appri^ benders. Clarus, ^ultima.
Quest. Sr. num. 9, et 3. But mark in a se-
cond case, ' Quoil nobilis qui dirccns verbis tt
' asaertioDibtis dixit, ail, teripni, principem
' suum noD habere animumremuaerendii by
Uatlieus, De Afflictis, decisione SOT. num. 97.
is not ihought punishnble by the o'dinary
judne; but ' r« mitten dus,' utin Leg. Unica, ' si
' quis principi mnlcdixerit ubi tamen imprope-
'■ ratur defecius liberal itatis, quis est priecipua
' virtus in principibus;' as our Saviour himself <
affirms, Luke cbiip. 33. 'Bi^i» Bountiful.
The third case is of him who spake or writ
that which by interpreiition niiitht ha tniecon-
Etrurtcd to nne evil sente, as was said is the
second part of my first exception ; aurl renjils
aUn lo tliat comment of Menochius, adduced
by Mr. Jolin Ncsbit. And where my Lord
Advoeat would eschew, by saying thai Meno-
chius bad not such a law as we, uiid that vie
ought to be gorerned by our own hiws; remir*
to the end of my first exception anent the ex-
position, of all uiunicipal laws, Bccordin|; to
reason. Vii Guylus expones ibe maiim, ■ Ubi
' lex nun di^inguii nee nos disiinguere debe-
' anis, et ut viietor absuidun paritaiis;' our
laws may lie so expounded. Erga if (he au-
iliors of these last speeches and writings be
scarcely punished, far less ought Che bearers,
not revenlers, nud liolnpprehenders; foi't^'eoiD
apprehension, ' quia m captura opOrietutcbn-
' stpt de criininis enormitate,' which is not here.
It' is triplved by my Lord AdTocai, That be
finds no necessity to triply. But if tbejastice,
and hit lordships asiessois, require any thing
tu be explained in that which is duplyed, upon
signification of thrir pleature, he shall be ready
to ciEpend nil dDubts ztrba, which he did.
The Justice General coDtiuues this Dyel till
lo-morruw the I3th.
The I
Ju,ticc (
ember, 1034.
^urialegiticae tiffinoata, &c. and ^otmratori in
Detence, as before.
Mr. Soger Mitmt, *a piocuraur far llw
WB] STATE TRtALiS, IOChauuL i63*.~ne Trial qf Lord Btdmavio, [660
rice. Foutthl;, ibere ta bo |Ti>uDd of reproach'
iiil«ried upon hi« geriure, ai the dittajr bc*iv
It ii dupUed to lli&t poiat aneot bia ■lajcMj'l ■
refusal 10 hear iht r^aaoaa of soi»edi»-BiseBi«rm,
That ihe first part ol ibe Auner lo tU Stttmtf
point ijuiwlrau here. Secondly, Tiie nlledgcd
rcfuaal of lii« majesty to lie»r the maao* rf
th« dia-aaKoters, runut bo m retrdily CMl-
ceiiej t<i rub natter uf c«|jirQMb apo* kit-
(najesij'i sacred peraoo or -peoMedBB* ^ bncm
iliv CNiitiait argues hi* nnge«j'*n>yJgo<nk»"
iu iini accepting die tenipuloui, prepoweraBt
onticipatioBSofreasoiis before roting IB pwli»-
QiBui. n: being dirrogwor; fron Uie aaMa* ^ad
tieretiilRrji libfiiy of nobtenCD'a rotaa, »uA
fiom his BiMJtstj'i rgyJ bounty, r»«iy U> •<>-
Juiescc in lUe frca opwion of bis eflafn; and
ir from a pr««Joas and partial eiiBOOStDg of
either part ol' aay debatable point, before tba
final decision in parltameu. And ai for th*
iiifereoce o< fear to becoi»e obuoiioas to hia
n<aje>ty'i diipleatilre, it is not ane infemce of
ane reproach, bucratberofadutiful We, which
dtboTtJs (ruus out)ottli[aesiiuo a aeedlrta fear.
It is aoBwered to that point of tiie Utttaj
(hnlli'iiging tliat (iMSSfe, lii. ' That ibe op-
■ po«iug oi Ti^utiaiii carried by pliuality <rf
' vole), wns aiver cei:sured iiy a prince of so
' muclijartice,' oiiuiiisnauifajeciorrefcoad);
but ea tUe coiitrair, aoe ample and due Bcknoiir-
ledgmeiit of his naj«3iy'« undoubted icaudnc^
and justice, used as an HTKuineot lo deprceat
liis majeiil^'i criHiirr, as incvoipatible with liM
maJeKy's gi^udiieM, aod the example of other
princck like to his uioiesty.
It a nnsitered co liuit point n( the Dilta;
beating Uiat bis mnjeaiy's UaoauriiuademiiliBd
by the alhrniiug aiieneni lenr ol' tonnvMioo in .
FStenlial points of raijgiiin,' that bis niajeaty's
. linnuuT is iiaC sliined ; because there ii notfauig
aOirraed tohavebeend»noby hism^tsty.wbkcli
niijfht occasion any tucli fear; undtbcpeoickaad
grouiidli'l^ fnuLTof suljccta, reflects no rcpmarb
upoua bUmeltss prince. Secondly, It is aibnoed
that thare is te.ir of noration intended, bu« not
by his majeity, as is clear by the motiies of that
fear addoceci by tbo sopplicBiitt, vii. * TtmC'
', there is allowance of printing Anninien
' book* ;' ™hich is not ussititdy attrmed, buc
upon report, and the mpoDity oF Anniaias
pccaching, which ceAects bpna cburcbmeii (mly,
lo whtmi ic is iacumlimt tu advert to tbit print- '
ing and ptaac^iu^ of oitbodoK irnmis. And
therefore albeit it Trerc 6>lsc, cannot lalivMler
the compass of the acta or.paritancnr, ss tedi-
tiuus, and reproadifiiJ to hia m^sty^ bis Mtatc^
person, and proceedin|;a.
It is nnataered to tbo' poiM af admiasioo of
Papists upon ^ pwlisiueni and nriicles, That
ill the Pnnnel's conaaptioDitrtflecUnDtBgiinw '
his majesty, and therefore is not rejeeajic to in-
fer the crirag of Mdi«ioB( libelliur, nr-accesDioa -
tlierato. Item, ft it aosnered to (hat potat of
the Dittay, bearing the ting's majnty't p(»< .
ceadin^ to be misconUnKted in ite alMgfd
pwliibiiionof (hegancry to amet,Tbat httn*.
jeKy's Myal procedRw i* nqt toKed a» ni^iiit ; '
panoel, repeats only the former defences, and
dupliei of them, aoetit tba revealing by the
pamiel lo the e.orl uf Uotbesorihe supplication
or pciiiioa contained in the dittny, and fix earl
of Aoibes Ills olferiiig iliereof to the king's ma-
jesty ; and ibat the uct of parliament is satis-
lied tlieieby, which doe* not exclurie the re-
v*alin{{ to utlier penons, nor are laeutioiied in
the 3atd Hct : liut allirin} positive all manwr uf
revealing, ithereby knoAl^dge may cume to
his ma)esiy, which is the end of tl.e sold re-
vetUingi sufficient, as said is, iu ane act of ibis
kind, wiiich has ruver been in custuiivi And
so revealing lieiog clear, as said a, there needed
no apprehend iug.
My LirJ AJvocal repents his former an-
■wers, lliiit the revealing is nnl clear nor rtle-
vjni ; and albeit it wert, tisnt the not appre-
hending laskeS till! p:in>iel guilty, luid vi to fnii
undi'r the pu'iijhtneiit cuntaioed in the act of
parliiincnt Itbelted. .
U ia alledgcJ by Mr. John NiiAet aader Pro-
ttstaiinn, Tbrit tlie vindicaiiug of the libel
cliaUeitged from the gl^'stes of the dittny, shall
not < impivi any approbation thereof either by
the pannel or his procutatiirs ; but iu so far
ai (hey ure neces^itut,' by my Lord AdrocM's
replies, to liiidicat the paiinel's innocency in
the hearing, or any other acceision to the i>aid
lihel chailenged. It is first replyed by iny
J/>rd Advocal in bis leplics. bearine that tbe
nature of the piece is &u notorioiibly infiunnus,.
ttiBt at tlie first view it is apparent to ihe mou
■hallow and ordinary tinderatuniling, tn he in-
jurious to bis niujesiy iu all tbe puinu libelled ;
It is dvplyed tliiretu, ihtit the points of tbe ak
ledgad litwl import nb reproach to his majesty'
person, ealate, or gov^ nnicut, in (he piuiuti
coiicepEiou, for iheseresMnt: lst,TbuC point
tment gesture is nut re proadifut, because ■ sub-'
' jects sunt tatia qnalia prrodicata deteonstraiu,'
Bartolin, Primariu Leg. 3. f. de Instructa vel
Inttrumento Ltgatu. And there is iu> ii^ari-
ou« ntirihute enuineiat, le defame Us mnjes-
ly's gesture; but ii is only aUtvmed, thai his
iw>js3ty's notes bred a fear, vthicb is ana atir
buta «f CBSualit.v. and aot ef <|0Blity. y<
cundly, the inieution of his majesty'!, iioiin
could iHit be conceived by the paoorl lo be an
taxing of hii mejealy of nny puiut of indiscn
tion or injiiMice, unless the ocl Of noting had
been (juahfieil iu the oUeilged lihel to be nnjust,
or indiscreet; which Hr:ie sacrileftteus to ihiok
o£ a prince eslnloged from his country, imd
from tLhe occHsiuns of knai>led<^ nnd knowJoe
of hi* til%ecl> : for lie may injustice and wis-
dom remark the opinions of the lords of par-
liahit-nt, and tliercby probably to fi>unil i con
joclure of their iucJiuaiions to his majeUy'
aer'ice. Thirdly, the alledgicg the nniing of
tl^e a:im«s of the dis-asseniers could not at the
fim be c^'iiceived to imply »n nScioua prying
into the gesture of the priice. but ratV" -
loyal (ear of incurriikg ihe kief's displeas
takiujL hold of a Hmple gesture,' ahereby his
ip^esly might have seemed to bnre taken do-
tiM of ifacir uMovaplatH to kis majesty'* iw-
6«].
STATE TRIALS, IoCkauesI. \6U—JiT a tUd. ,
[ess
bat mhonCit;^^ BpontkAword* oEjmtmor
iiyDilke of the intamipMii ot tho«4 raMtingt,
it 13 oalj infant, ihmt klbsit in pkrliamrat tlwy
iTUgfat bara olqaotad agaion tk» iDMiraptioB tA
tboie nuating*, bdi) bwi occmmo m oppnae hii
— "-"^ '" " they tbanfhc, that thase lONt-
iBttrroptrft, tba]> conteatMl
immaisB^ aaa were DM lalnoMrf. And
li««a, Md ia tba bail ilraM af tba fetlotring
paoui, (ia tbePanaer* coacaption) it is entj
aa mtcavav to (haw Dmc the rfiMNniiiag
fmm «HB« Mti, wai aot from aaj faetioB aad
» oppo» h)B B^^'
tbiaf fcarari be m^ht haia bean
■wing » other aoiats, vhetain thej bad occa-
Hoa, lod probable |;n>iuKlB in their opinion ta
oppoie it, ihey were Hint. MoTCorer, it it
aaiweied for tbie ||MiDt, tmd all otWri Mlaw-
ing, '(load in caiua fri»iwli (^smfo verba
' poMint iniarfirelari ad bonum vet malum, ea
' dubb dehant iM«lli)!i ad bonvno, et esdudelar
• pnMumfKin delitti.' Cmveita, Coaci). 9,
Dan. 31. ' Ei Kcandnm lu^ectam materian,'
L^ Pnicnllu, F. da UsuA'actu ; ' Kt quando
' verba liabia sun, non debani intctlTgi cap-
* tMse iodtManum praferenti*, jad arcundum
' ^n aieate qaid dieatur, at iimIio magia qnid
* oaw4iu.iUw.' Leg. panulr. F. ad eihibeodum.
* Kt qaaada rerbfi luat dubia, ut videntar injir-
* liMa, Td ma, tiaadwn cM dedaTationi ejtn
' qw ea dixit Tal seripait." ■ Memcb. Concit.
Ilr. -lib. IV. ' Muho mofia pjus qui imprn-
■ dem •« boo* Ma m nw* ett. Ei quando
' verba «int dubia, dvdnniM lumilor a ver-
' bil prxcedenlihua vel lubsaqaeatibBS, Te(
■ otrkqne.' Menoeh, Coneil. cicaE. num. T.
Aad thenfere if tbe strain of rbe trardi, ihe
nsuore of tbe subject being a wpf^ieation, the
daclaratioa of iht Pannel's cnnceiitioB of them,
aMd Mher eosoiag norda wbicb decUred them,
b* athertaii Diita ; it will be t'nunil the Pannel
iseiGUBahle, if in iliia conception (hpTimpnrt no
rnroaeh to his majetrr ^ for tlie hiiil last port
olt^iupplication resoltes in iin innnncialion
df pcatUUpnrHrilo, Wemighthayerepresent-
edfao'wtrilkalar^rmhiiepratntiM; and there-
fbreifaCihe tiaae of the pnHJBinsnt they had
[NMter tOkVeprncnt Ihean ihinjp, the enuncia-
iiHB of ihoT pnwer'eannM iinpen aalmnnj or
rejiroachw hia mojett^. And teeiug th? ac-
tual EcpMacMatinn of thew ihin^s Eiiuld kive
imported no injnr]> inhw mi^estj, * ijmn abi
' Ni'entiii Impieodi msi in danda egtnihb et sa-
' aiUAp Manocb. Co»cil. lOT. num. 9, for less
coakd the alKimiag oflhair forbearance from
aae act not injarioiiain icvli^ hove been con-
caiT*d or iattfrprered ta be reproachful to his
majett^. And wberea»ilis libelled, that the
ppihifenina of tba nobilrtir and gentry to meet
BmBi^sttlMaMelve!^ OTwilb ihe lordtoflhenrti-
clea, a false ; lua rtlevat, becsase it is not po-
•itianelT attnaed that they were prohibit, bot
onl^ tbat tbey might have repmented tlrn pro-
hibMJaa of tbeaa' maBtin|t. For the veritj of
the which <oanciMi«D, and the defeace of it
from being i«pMMcUlil,th« power «frepr«sent-
that theie meeticgi were prohibit, wka~
tber u|ioniunniseB,or upon an j other occa«)<m.
And liaiilir, it is declared aftertriud, that thej
furbewto malceoaeof theiereoHWSiWbicbliia^
mi^ht bare probably represented, to gits b^
majaMj full enaWt b every thing that inthair
Opinion maketb not a breach in our rehgion or
laws: wberebj the justness andUwfulnewof '
atl Ibejr cooaented to or lurhore ta oppose, ia
cJearlj ackaoiitle>%od ; And that it appeared
to the Paanet, and may appear to any, that
tbey might have op^jed ihie king's procedure.
It iSDMtn traduce ii as unjust in points nhich
they both by their tilenea acqtiietced unto, asd-
exprosil^ acknowled)^ that lliey import no
breach in our religion and l^ws, bat to abow
bow pntbabty tbey might have opposed divers
pointa. thereof, if they bad been p«3sassed with
a seditions spirit of oppoartinn, and Iberabnr
carried to dia-aneot from ather acit, aa ihey
feared bii nisjestj might have been mixed to
It 11 anaweivd to tbe point of slighting tbe
grievance of tbe cooatrj. That hii majeati^'a
proceeding is not taxed, becau»e'it is not isid
that tbey wete proponed in partiaiiicHt, and re*
jacttd or el^ihted ; but only «t)enns in (fit*
coarentioii nf the estates ilie peraoa chiefly iit-
trwsied by his mujesiy undertook to acquaint
his majesty therewiih, and to pracure redHM,
nererthelesa no nntice va» taken thereof, suit
ihey were sliichled not by his majesty, but by
those wim undrrtook to acqanint hii majesty,'
and [heretbre rtflects only upon ihem.
It is ansivered to that point of the dittny
bearing the ignorant and false altiraiationa, that
before the 1609 year nf Ood, tbe uobleiaen
made choice of sotne of their rank to be on ibe
articles, the inpplicants ignorance, in the pan-
iiel'i coneeption, Inys no MpctsioD upon hi*
majesty or his procecdiB)!*.
tt is anmered to ihnt point of the dtttay,
bearing the tnxina of the undutiful choice made
by tba bislicf 9, of noblemen lusuflieient, or mi*
eTperimeiited', to be Hpon the nrticl«a, Th:it it
is not injurious in the panitel's cunetpiion to
his mnjesty, in his person, cstnte, or gorrm-
ment. Secondly, Ilepenci the gentrnt answer,
that it is not positively affirmed of die biiliot'S,
that they Hid undutifully, or tlmtthe noblenpir
elected upon tlie articlts wera popish or iy-
norant; hnt that they barf probaMe grounds in
their opinion to think so, lud to reprt^beat.
It isansuered to ibe point nf reproaching of
his majesty for the acceptance of the taxation*,'
Tliat in the panml's conctption tiis m.'^eslyia
not challensed upon lii»»peeche« in imi-lismeiu,
nor upon the narrative of his piodnnuitianf,
nor by tlie nntithms of king James 1, his
practise: hut his majesty's speeches in pnrlin-
meat, his proclamations, kins J«nies I, bis
practice, and the parallel at' tTia e<IMe of the
country, and the end nf tanittioiis under eiiUer-
king, and his [najesiy's fniliur nf worthy w.e'
moty, is adduced in the pannel's esneeptHHi na
tpeciOH* rraton* wberawith they m^ltf have
eSS] STATETBIAI^, IOChailesI. l63i—7^ TUal <f Lord BaMMeriM, [6Si
tbepwiiwl, TiMt tb«t part oFtiierfimj Max
tl)e paiinei'i Rlledged divu^iog and di^ieniag
III (lie sairl BlIedlMl libd, » not rriCTBDl to in-
fer the crime and pimisluneiit coodudrd in tha
said diita; ; because divulging and dbpenipg
are aox coiiUUDcd in tbc hcu of pwtiamcnt
wbereupontbedittt^is libelled, and to cunoc'
be the ground and wamuid tbereof. Secondlj,
111 M far Bi ijie dirta;^ bears, thai the taid libel
WAS divulfed bj giiing die said otpj to Dun-
mure ; KiviiWi )uia not granung, that dirulpff
iswarranted by the laid acta, or can benutuned
as a WBirand against the pannel to infa' ihf
laid crime and pain, (bat cannot be called di-
vulging, because DuiuDure's own deptsinoni
bear not, that he received the taid liLcl from
tlie pannel Co copv or divulge, but that he\o(^
it up only to read upon very strict conrtitioia;
wliich being the true lauiner of hit receipt
thereof Irom the pannel, -cRDtiol be called pro-
perly divulging: becauK to divulge, praperlj,
IS to aHii in loro publico, as Mr. Tiionms Roit
did, fijiom my Lord Advocac cited; vrbo attud
liis geditinm posquils, and invectirei against ba
nation, whereof be was tbe confeised author,
upon the public parts and plorea of the taim
Bud univetsitj' of Uifnrd, Or to divulge ia to
tyne (drop), and cast doun papers in k^rki,
tolbooLbi,ir hit;h-nreets, at did FrancitTcnaot,
likenise cited by my Lord Ailvncat,' who Irit
and of piiqMNe tynt (dropl)' lii> infamoss mH-
sives in the kirks. Aiid it in lanivereally main-
tained, tb.it the detivehiig of a libel or wriiin;
to one only, cnnuot infer divulging ; nlbeii il ii
not granted that ths paiind delivered tlie said
jetty's weyi and benefit*.
It is answered to ihe point of challenging of
his mHJesty fur employnieut uf his tuatiam,
and for bis lilierality m rewarding hia othcers,
That in the paimel's conception it is not spoken
poEitively and by way uf reproach, u the former
points, shewing how far ibe dis-anenters v.ere
i'raia averseness or (cpidness in bis mnjeity'a
service ; seeing without cKpaiiating on tbe
common bead uaual on suali occaiiona, against
tbe granting taxations; without inquiring of
the reasoub and caiiiea of granting ihe taxa-
tions; without 'repreten ting the incDnrenience
to ensue, they all unanimously favoured his
ntaieity's beoe&t.
It is added by Mr. Itohrrt Macgill, That tbe
leieedies applied to a disease, must be thought
both by the phyucain, and tlie patient or sick
man, meeteat'iind most iittiog for the curing of
tbe ditease. But to it is, that the panntl and
Bopplicants were sick ofu. disease; and therefor*
tbey in curing by the remedies as were tlioughl
fittest and moit helpful by them, contained in
tbe supplication, must be thought therein to
have bad a good mind, and chut they thought
anU u*ed the remedies nccording to the nature
of tlie diaeate, as being most Gt. Their disease
was fear of displeasure from his majesty ; for
wa must not think accnrdiiig to die .Stnicks.
That only ' vires animi quat pliaacaaias pliilo-
< lopbi appellant, quibua mens hominis prima
* statim specie rei ad aniinum accedeniis pel-
< Utur, nun voluntatis i>int, neque nrbitrii :' but
that also ' assentiri et ctt-opioari incidunt in
' virum sapicntcni.' But lo it is, that this dis-
ease was lilial, eriia patrrm palrit. And like
baimes who are dung (i. e, children that are
beat) go bBck agaiq to ibetr father, so the pan-
nel and other supplicants liaving by chance
linked upun the piece quairetlfd, diil think it
ft very goiid remedy lo appFuse his most eacred
majesty, tbeir lather. As it is reported of tlie
speir of AchitliB, tliat be ubo wuupdeil them
with fear, might cure tlie same wound, in shew-
inc that they might have represented Etievance^,
which are diseases, ta iheunlv physician. And
in our actfof pnrliament, dedamations arc for-
bidden ad pltUm: so it must be thought of
writings also, in the conception of ihe pniinel,
■ quRperplebcmdistribuuniuratque ica diral-
'gnnCur,' which is not in our case; ergo,&c.
It is ansHered by bis nntjetity's Adivcat,
That all ought to he repelled, in respect of the
dittoy, and of the particulxr pninls of r*-
pmaclu;, which not m meiklu (much) as by
the conception or menning of the pnnnei can
be justified. And all which is optioned, is f-i-
ther n^nst tbe relevancy of the diitay, which
is remitted to the justice; or against the verifi-
cation thereof, which is proper to the assyte.
Aod if the justice and assessors desire a more
special answer to b? made to ihe particulars,
tbe king's .^dvocat offered to clear liie samen
by word in bearing of parties.
It is last •ItedgMl by Mr. Rcger Mottot for
oDun
Ta tliac part of tbe siid ditKay bearing that
tbe s<-iid libel was divulged by delivering thereof
tci the earl of Rothes; it is answeKd, That
that was not divulging, because it is conf«s>ed
in the said dittay, that it was delivered to ihe
earl of Rothes to hare been presented to his
sacred majesty : and it ia contended, as bclore,
That that which is afbrmed in the said dittay
to be divulging!, is more properly to be called
revealing, ' us indeol it wa!. So that it is re-
lorted, tu free ibe pannel not only of divulginjc
but of all crime lor hearing or not npprthenil-
ing; because if llie pnnnei delivered it, as (be
diliay brars, Co have been pre^ent«d to his sa-
cred miyesty, tr^o, not as infamous, nproach-
ful, ur scandalous i which must be prewmeil
by all mannrr of (iresumptionE in favour of the
pannel, ihnt he did not consent to ihepresrai-
ing thereof to his highness, bb being iu nis least
ihnu^^t or imaginatiiiu scnndnkius, or olberuisa
Hs the d'ttay bean ; but only t<i have been re-
vealed to bis sacred mRJesty as n piece which
lie and the ottier lupplicanta dtd think and con-
ceive might have been graciously accepted, ai
iitiiets o( that kind haii Ibnneily been received
by his gracious majesty.
To that part of (he dittay braring the i«py-
iiti: iherexl by Mr. Hnberi Dalgleish, tbemn- '
iiel's servant; it is answered, ^vod nam rrwM'
1(1 infer divulging, because ibifiaid Mr. Robert
his deposition bears, tbtt be did only deliver
fi85j
CTATETRIAIS, IOChaklesL lS34.^Jbr a IAM.
[«*
the copy b) m; lord his muCar, and did no
larder. Neither depone 9 he, [tat mj lord did
Btij fuder but cunk the copy fiam biin; which
in no sense oa be properly cBUed divulging,
for the reason! befura adduced.
?'o tliat part of the said ilitlay beBring Mr.
J. Dunmure'* keeping tbe soid copy in bi>
baitds, by tha tpice and in muiner libelled ; it
it antwered,' turn rtUvat, becitiue ii is not,
■( lufira, Lhat the pacnel gave him tbe copy,
but lliBt he took it, Bs the deposition bear*.
And lyhat he did thereafter witliout any wgr-
rand, crimmend or allowance of the panne),
cannot be JaJd to the panoel's chnrge, but Co
his ono ; seeiojt the mf Aner of his receiTing
nnd divulging thereof, is nottourly known to
hale been against bii promise, or wilbout (he
koowlcdgeor content ot the puunel, by ubuaing
bis trust given to him by the pniiDel. though
innocently, who was free of ali his' subsequent
proceedings. And there being no fraud or ma-
jice in that point upon the paimel's pari, who
wM wronged by Dunmure, though innocently;
that cannot be called Uie pnnnit's divul^iog :
for who lives, »nd may not be deceived and
abused in thnt manner as be was, ibongh in-
tracently. on Dunmure's part P '
To lhat part of the oitny anent Mr. John
Dunraore his answer to tlie-eart of Trnquairi
it is answeied, That the same cannot he te-
q^ected as relevant to infer dirul^ng, because
tbe panoel's depositiun bears that he gave no
•rarrand nor direction to Dunmure' to return
answer to the said earl: but lhat in discourse
with Dunmure, Uie panne) ansnercd not those
words, ' That as honest men would put theiV
' face* thereto' (i. e. juslily it) ' a* ihe pannel
' himlelf;' but tbe pannel's answer only "wos in
tliese words, ' That as honest men as the pan-
' nel bimself knew of it ■" meaning of the earl
of Rothes and other supplicants, who had in-
ttuded lo cause make oSerof the same to his
royal mijesty, and accordingly clid make offer
thereof by ibe said earl of RothM.
And 10 that pdrt of the said dittay, con-
cluding that tbe said pannel bring a nobleman
of good icurning and underEtanding, Ebould have
rn'ealed, should have not concealed, sbiiuld
h^ve apprehended the nuihor; it is alledged,
nan reitial ut tupra, and abtoltilar ought to
begraoteH from that concluiioo, for the reasons
mentioned before in the defences and lioplies
made for the pannel, who stilt contf nds that as
beoeverdid conceive' or understand the said
snpplicaUQii, as the ditUtj inforces aod benis
Ibe same upon him; so his own commentary
Mid (ledoi«tion onent hii meaning and sense
ibercrafi ought only to ho received, (o free and
TtodicaE him from the crime and paios libelled.
In respect whereof, tlie said ditlay anent the
poinl of divuifing can no wnyt be respected as
relevant, hut abiotvitar ought to be granted lo
Ute fnnnel iberefrom.
It is added by Mr. Aiexatultr Pairiaa to this
last and fifth exception. That tbe point of Dii-
tay nneBt divulging is not relevant, and cannot
tiMt the pains cunclwled h;r the JliUiJ, because
the said point of Dittay isnot founded npon any
net of parliament mentioned in (lie propotibDn.
thereofj but only upon the civil law, which the
Icidges cannot nor are obliged to know in all
the sanctions thereof; specieiily seeing by diven
acts of parhament, to wit, king James 1, pail,
S, cup. 48. king Janies 4, purl. 6, cap, 79. by
thenbichit is stiitute, That all tbe king's leidgcs
liva and be governed under llie king's laws and
statutes of the realm only, and not by any law*
,of other countries: And therefore cannot infer
the pains concluded by tbe Dittaj.
Farder, Tbe pannel ought to (le assoilzed
from thai point of the Dittay of divulging, be-
cause the pannel is not nor cannot be counted
formally divul^erof the alledged infoiuolu libel;
he not haviog knowledge or opinion of the writ
(|uerrelled, tbat it was infamous: but havii^
just and probable cause to think of it otherwise,
vtiupra. And ns credulity by the civil law
defends in iheii, so by tlie like reasoa it ought
to defend the paanel heie, anent divu^ing, a>
is confirmed in the fourth exception proponed
for the pannd, which I liere repeat, nod which
defence is mostrdevantby tbe civil law, ivlier»-
upon only this poinl of Dittny is urged, and
I berefore should elide tbe sane.
Item. Farder, The civil law does not mak*
any to be diviilver of an iniamous libel, but
after knovtledge of the same to be inramout :
whicli is clear by tbe ordinancftof the law set
down in Lege Unica, Codicc de famosis Libel-
lis, ivhich com^iands the finder of aneinfainout
hbel presently to destroy it; which the finder
caDnot do, but after koowlcHfge of tiie writ to
be such. Aud 'tis also clear by the prohibi-
tion of the said latv, hearing, 'si vim earum
' mnnifestaverit ;' wtiicb requires divulging of
BU infamous libel, in the form and strenglh
thereof. In respect whereof, tlie pannel ought
to be assoilzed from that poinl of divul^ng.
It is added by Mr. John NUbtt, That divulg-
ing is not relevantly qualified in law, by the in>,
parting of tbe alledged libel to my lord Rothes
and 10 Mr. John Dunmure; because it was im-
parted to neither nf them in quality of an infa-
mous libel; but to my lord Ruihes in the con-
trsir quality of ane supplicaiiou, to be present*
ed by him to hi* mojesiy, as is acliuonledged in
the DitUiy ; and to Mr. John Dunniure as A
confident of the pannel's, under promises of •«•
rrecy; which pmcedureandqoalitiesofimpart,
ing are far from the nature of divulging; tor the
word iiself implielh a public dispersion, and the
express- law rcquireth ' manifestation em publt
' cam et dolosam publimiioneni ;' Canone yii
in allerios, CausH S, (juKSt. 1. Dulnsum. Ca>
none 4. eadem Causa et eadem Qof si. * £t Ii-
< bellus famosui dicitur Pasquijlus, quod in urba
' Koma ad truncant Pasquim c^jusdem statoan
' aSigi sulet.' IlArprechtui in Trtctnia Crimi-
nali, f Injuria. Sectione de famoio Libelta, ' Et
' qui libelliuii boioBum ab alio acceplmii vicis-
' Sim alii, ei uni tantum sectetu tradidii, llbelli
' famosi pcena non est plecteadus, quia ex tra-
' ditione secreto ^tn non obscuro colligitur '
' uiinvs sou di&naniji ; n ijuja libelluw tit^
. «S7J STATETKIALS, 10 Cbimm I. iflS*.— TV OKri ttfLotd holmeroio, [«»
' moiunt noM dicitiir ftablioBBse, oisi qui
* pluribuiimprrciruBeBt.' Unrprecblui, ibidem.
. It ia arideir bj Mr. liotcrl IfarjiJ^ Tiixt ibc
ilivulging quali[i«d in ihe Dittay ik not nlevmir
■ccordiag to ihe riiil Un, where snuUicntioii
andout-aettiogisrequirrd: Phnrm. Queit. 1(U.
Inspeci. 11. uu[D. 4SJ.4ST'. And tlie reason is,
' quod coiivicium dicaiur quasi coiivolium,' Leg.
Item, apud I.abionein IS. J 4. F. rie iDJuriis,
ubi ^ ' tequenli ait dici Tociftrratioiieni ui utum
* coUatuui :' addicii $ 8. et 1 1 «t 13. ' Qund
■ opoitet in cetn did, et cum voriremtJone vul-
' gare, etiaai NaRia MRrcello eat in vulpii dare,
' et quui uiultLi Budivatibus ac non tBEitamua
* dicere.' Then ' et dispenionem ccdirieiDneoi
* Mjpenddunt, ut ut in plurium nanus iparsio
' ab unn eadefoque iacca, el maiima si in pte-
' fann diatribrutio Gat, nnde acvitqne ■nimw ig-
■ uobile TulgD*. QuippeutCioetopra Plancio,
* noD est canailium in vulgo, ijon rutio, non dii-
' criraen, non djjjgentia.' And ev«i in thnt title
. of the ninth boot or the Cod. de Sediiiosia, it ia
added, ' £c bis qui plebem dbntni reinpublicam
' aadent colligera.' And ao have 1 taid not long
aiuce, that tlieH private writitiga, and the di>-
fictsinji of lliein,aiii8C be understood in oar acta
or parliament, aa the declaaiations therein men-
f ioned, that is,' to the meanest and commnaeBt
■ort; and [hat to ten at least,' quia non dicimr
* notorium nisi per decem aalcem transeat ;'
Boerius Trnctatu de Sediliosii, Pmmiu. T.
' qaippe quod populni dici non ptwio, niii tint
' deceiD:' Ibidem I>ri(miu.S. And rami ra here
whnc I bare said de Seditioti*, in the end of id;
•eoond ex(»ption. Bat to it is, that the cam-
<nuiuc«ting of lli« piece quaiTelled to Mr John
Dunmure, in that mean aort as ia contained in
(he deposition, and conteqientlj in (be Dittaj,
cannot be thought ndivutgit^ in nann«r above
cxprnaed; ergt> the prantl onght to be aswiil-
Ked iTom that part of the Diltaj.
it isantirered bymj IenJ.JAMcaJ,Thattlie
•lleadpnceoa^ht to M repelled, in respect of
tbe Oittay, winch in this part BnentdiTUlaing is
ibundeJ upon the common law, Lee.'Unica de
ftnuiia Ubetlis. And which common law, ia
the case nhere we ha*s no patticalar law nor
Mitutc of our own, ia obligator; agaitist the
Itidgia. A&d the nca of parliameat cited b;
(he liefenien. That the leidices shaU be ruled
faj the lawi of the kio^nm allenarlj', (only) and
aot bjthc hiiTs kf other bii^donia, excludes only
(be particular lantof particular kim-doms; but
uclaitei not neither the lavs of God, neither
dn lawa oF nature, neither tbe laws of nations,
(>qr tbe coKimoa law : otherwise, odious crioMS
anioBt Hhtch there are no monidpal laws, aa
mia, I'lagmm, frnati Carctrti, &c. should
- -unable. AndM to tbe•!|oeptiaQpro-
d aaaioit the rtlefaacy, and the fJleedg-
of uie civil Uw anent divulginf utti ; op-
fioaes the Ditta;, bearing the divul^ng thanof
to three particular pertoos in manner therein li-
belled.
. it is'duplyed b; the pannet and bii procam-
tors, I'luit the point of divnliiag being founded
only upon the siril latv, if it
oiil^ Mlenoit to infer ibe pain of tbe drit laa,
•Inch ii not capital, ' Nisi non Ubeilua tainMai
' CDDtinctdelictacnpitaiiBiniiliumtinpnpenta.
' liecus iu no impro^retur delidun bod sapi-
' tale, aut mIIm quevis culpa.' Gloei m Le|.
UnicB. Codice de faniosoljbcllo, in verb, ai quia
fumoium. Pluu. Qoieiit. lOS. nam. 11. And
uf tbe canon law, which ha* ever had mora
force H ith US : ' I 'cena etiam
Qtlt*-
fiuaCiiuaa».Quaw.l.
It isfaider duplyed by Ur. Rogtr iUqual,!!)
that part of my Lord Advocat's reply, beinii|,
That the alleadgance made against divnlgiif
ou|ht tu be repelled, io respect of the Uiltaj,
bearing the divulging by ihepannel to tbrre se-
veral persona : it it duplved thereto, 1 liii the
said reply ought to be repelled, in reaped of the
said slleodgance pTopoaed aeainst the said
member of divulEmg, and had qunUGcatiiua
thereof, to the saids three persona; nheieuuto
there is oo answer ^ven by my Lord AdTocaL
And therefore remits tbe laid alleadgaace, ud
hail ni«roberg of it, as jet unananered, la be
considered by tbe jndge as most rrievam ia it-
self. Jn reipect whereof, tbe said slle«dpnce,
and hail men-bera thereof, ataiids rdevant, ooC-
withstonding of tbo reply.
It is triplyed by my Lard Adrocat, 1'hit the
pain by tbe common laW is cnpiial; and tic
quoiation by Mr. John Niabetu. a glow, Kith-
out warrant. And albeit some reqiect migbt
be had to' an infamona libel againx a Ml^cei,
yet niine in that which concerns our saveicip^
tending to the diatnrbance of tbe cstata ud
public peace.
It is qsadruplyed by Mr. Join Hittet, Hat
we oppone tbe glosses afomai^s acliiiowteilnd
and followed by all the doctors, and 'fonaiM
upon the equity of retaliation; and oppaM
likewiie the foresaid Citations out of tbe caarm
law itsrif,and the hail litl* of the canon Ian Da
Haledictia, where detractoiaof tbe pope bus-
aelf are ortlyobnoxioua to tbe pain of Mgail*^
The Ji
iw tbe 17lli
Curia legitime affirmata, the said ITtli of
December, 1634, &c.
My htrd Aiheeat, after Mwa speech deU-
vered by the pnnnet's procoraton; turiii de-
dared Co my Lord .lustice-GenciBl, That what
was spoken was oal^v a anmntnry recapiralaoM
of that which ii at length set down by ''"PJ^
nd'a procuritora in their de&ncea ; and aie*"
10 his fordthip, if it were hia lordaliip'i pttsMi*
that be, as pursuer, should clear by hia aas'O'
serfci; and otherwise, that my LuntJoMice,
witli consent of \m aaNasors, would dose hat
an end lo) all fai^r wniine and decl»e tM
HO noi« ahotild he added, but that ij>((riir>>-
tor may be pronounced of that which ii p*^
Cned and written altwdy. To tbt which m;
rd Justice made aonrar, Thai there •>■»■«
neoeasity to annrar livdn (Imb it and M<
writtM tiiwij.
.Google
6S9]
STTATE TRIALS, IOChablesI. leS+^^oLiW. - [690
JohnLordBnlmerinodelaicdoftlieCrlmMCuu-
lained in lii) DiiEnj, caiicained in his [> re-
It KM tlxreafter hamlily craved by ihe pai .
net ondhij pmcumtorfc, iktt ifnny thing slmuld
occur la be deioundttd nliereupon be dtsired to
be heard belbre iHlerloquitor, thnt my Lord
' Justice would be pleawd lo liear liim, he |iro-
puiimt the game, verba in lib lontsliip's bu-
K]y Lord Just ice- Gen era), with advice of his
Ifltilship's ais«iwin, declares that all furder
nritiug in ibis iiiiitter shall cente herore the
dittay l>e found reJevanC, and referred by inler-
ttqit'Uor (□ HO assize ; nud cuiitinues inlerlaqui-
lor upon tllc exceptions propuned in this pro-
ce«i, and ansiweri uii(de uiereto, till Friday
Dcit, the I9tl> ofDecemher iiismnt.
The said 19lli of December It was continued
till the next day, the SOtli.
The said 9(Hh of December, 1634, Curia leni-
tive afiirnuita, &c. I'aiinel and Procurators
My Lord Jusricc-Genetal and his lordship's
'>ssesior?h»viiii;rtnd andcuniideredifaeOittay,
tail except ions, replies, duplies, with nil that
is proponed fur ihe panncl by liii procurators
in thia prpcess, and my Lord Ad*ocai's answers
made thereto ; 1>y intcrloguilor repel the first
eic^Mion proponed by the p«iinet and bit pro-
curators against the relevaiicy of tlie diltay, in
respect of the acts of parliament sinndlng tin-
tepealed. Repet the second exccptioii in res-
pect of the ditlay, and nets of parliameiit
whereupon the same Js founded. Repel the
third exception in respect of the diltay, and
that there may be irore autliors thiui one ; and
likewise soslain these wonls of lite dltliy,
* Wat lHa Pannel' is ' Aivittr, Den'uer, and
* Contulttr,' in reapeet^they all signilj ODe tliiug
with airt and part. And as to the qualification
of the interlining, set down therein, remit the
same bi tlie assize, as proper to be coenosced
by theio, with the hail remnnent qualifications
and presumptions comiuKed io the said diltay,
to be proten lo the said assize. Repel the
foonh eiception in rmpect of the diiiuT, and
scandalous and reprirachful libel inenlinned
ihereiii; which my Lord Justice, with adrice
of bia lordsbi(i's assesiurs, find to be of that na-
ture, nolwilluCflnding of any thing propounded
in the contrnir iniM pnnnel's favour. As to
the last exception, repel the somen, and sustuin
ibe point of the dittay anenl the divulging of
the indmous libel, to be tryed an<l proTfn ron-
jututim with any one of the re^t of the nrliulrs
of the said ditlay found relevant, as said, is, to
infer the [mnishment prescribed by the act of
paHiament; anddecIare,Tfaat if it shoilbeonly
proven per u, to he punished p^r panam orii-
Irariaia.. And in respect of the former in-
trrloquilor, ordain the dittay to pass to the
tryai of an assize. And for thnt effect, coaii-
Oues this matter in thq lltli day of Febru:iry
next to cume ; nnd ordain the pannel to he re-
turned tio his ward within the castle of Edin-
fcurgh.
Curii j^idme afirmatn, the Hud llUi of
February, 1632.
VUL. 111.
foresaids, with adt ice of the Assessors, be-
fore ineniioned, continues thi> Dyet, anent
theTriol of the suid Jolm Lord Baloietinu,
fur the crime specified in his Diltuy, to itw
llih of March next tn come. The petsuna
of Assize arc n-uriied,&c.
The^id lltb of March, it is continued till the
18ih of March, 1635. And the said ISib
dny, in respect of the absence lif Mr. lloger
Mowat, the Ponnel's prindpiil Procurator,
by reason of sickness mid the gout, the Jus-
tice continued the Uyet lill the £OCh of
March ihereailer, 1035.
The said SOth of Murch, 10S5. Pannel and
Procurators as befijre.
Tlie names of the i*rsons of Assize (Jury)
WlUiam carl Maresclml, James eurl nfMuiray,
Wiiiiaui earl of Duml'reis, Muii)!0 viscount of .
Sionnond, Jolin earf of Lnudcitlate, John eat]
of Traquuir, George lord Forrester uf Coritoi^
phine, Janies lord Johnslonn, sir .^let. Stra-
chan of Tliorntoun, linL sir Uobert Grier of
Logg, sir John Chnrters of Amislietd, sir Alex,
Ni^betof Westnisbet, km. sir Patrick Agiicw
of Locbnair, km. sir James BuilleofLodiend,
John Gordon of Buskie.
milted upon the asiize, because he has received
ifbtmation and particular instruction — of iha
_ Hniiri's t;uUiiness of the crimes |iv<nupin the
dittay, and particular direction what to do in
case he pass upon the asiize ; which they refer
to the nobleman's own onlh and declaration :
who being sworn, declared that he received no
iach instruction or inl'omation of any person.
Whereupon, being purged of partial counsel,
the justice admits him upon the nsaize.
It is alleged against ihe earl of Onmfreis,
that be cannot be received upon (lie assize, be-
I he has giien out his prejudicad opininn
agaimt the pnniie), nfiiroiitiu, before any prr>-
iKttion led, that the pannel is guilty of the dit-
tay ; which tbe pannel referred lo his lordship'*
oath, alleging that in Inw a declinator is only
'.u be proven ngainst ane assizor by his onlh :
md fiirder aSrnis, that the said Willinm cart
of Dumfreis bas been solicited and dealt with
by pra>er to find Ihe pannel guilty of ilieditlnv,
which beini; referred to the said earl iiis oath,
he denied any such matter, ihat be either gave
speeches of the pannel's guiliinesB, or that
WHS solicited or dealt with by prayer, ot
otherwise ;' the justice adniics him, in respect
of bis declHmtion.
It is alleged against my lord Blantyre, that
■ cnnnot be upon liis assize, because be baa
ttiblickly reported 10 sundry, tliatthepunnel to ,
is judgment is guillv of the diltay, and cnn-
he cleared thereof; which tbey refer to hit
6911 STATETRLVia, IOCharlesI. l6-Si— The Trial t^ Lord Halmcrina, - [69S
lorddIii|i's oalL; who beini; sirorn, declared
tli:tt he could not deny that lie hnd spuk'eii such
spceciiL>s. Whcreupuii iie vi-as rcpeUed, and
ord;une(l to BtuuJ aside.
It h alleilued hj tlie pauliel nud hia pniciirn-
tora against my lord Joho^^tDun, ttie luird of
Lig, tlie laird i>r j^ruiislicld, the bird of
Tliurntouil, die luird of WestuisbLt, that they
cannot be received u|)oii tl:e asaize, becau^
iliey linve all been solicited by prayer niid re-
quest to tiiid Uic pauiicl i^uilty ; and iluiC the
lord Johnstoun has declared tu sundry, that if
he were on his a5diie, be ciuhl iii>t buL tiiid him
to be guilty ; liLewise, allinned by Tlntrntoun,
th:it as the dittay ia founded upnn the nets of
'partinmeat, the pnimel must be guilty, and uone
Clin acquit Uiia lliereuf; and uiat Weslii'tsbet
liad uttirm^d in public confcrenci!, by bis be-
wrayed opinion, Ihut he Hould hie (cuni'ict) ibe
tannel, nnd du hi^ endeavour cause others file
im of the-dittiiy. Whereitpoii ciie fijrenamed
person) having by their oaths denied (he pre-
.Diisaes, the justice thereupon liHTii^ (jurg^
them uf partial couusel, admits them upon the
nauze. Sviicreupun my* Lord Adcocat asked
iastruments. LiVenis« admits my lord of Tra-
^uaire, iiotwithstandinn of tiie declinator pro-
pooed againat him verio, by the paiuiel'a pro-
the dittay i
it wliereupoji
e lOtb act (rf the
10th parliament of bia majesty's, dearest father,
ling James the sixth, lioldcn at Linlithgon-
Hie lOih day of December, 1585 ; the other
act being toe Q05tli H<'t of his mnjesiy'a 14th
parliament, holdcn at'Edinbur^h ujion the 8 '
day of June, 1594.
2(tlv, Produces his m»je9iy's varrant or It
"tcr, cfirectfore.uniniBtionof Mr. Juhn Do
mnre, whereof tlie teuour IbUows :
" To the ri^ht reverend father in God. our right
trusty and ucll-b«loved couiHellor ; To out
right trusty and ri^iit well-belored cousin;
and counsellors ; To the reverend fathers in
Uod, our trusty and well-beloved connscUurt;
and to our trusty and well-heloved cnunsel-
lor, the Archbishop of St Andrews, Primate
■nd Metropolitan of all Scotland; the £arl
of Mortoun our Thesaurer, the Karl of Trn-
qunir our Deputy-Thesaurer, iho Risbopi
Edinbuff;h and Koss ; and to sir John Hay
ot Bnro, our Clerk-Regiiter of
iingdom."
" C. R. : Ri-htrevcrfnd and r.rerend fathers
in God, i:nr trusly and ivtll-bcloved counsel-
lors, right iruAty uad right uult-heluved cousins
and ciiunsdloTs, nnd trusty und well-beluted
counsellors; tve greet you well. Having seen
the copy of a Petition, which hath been in the
bands of Mr. Peter Hay of Nau^litnun; And
lie being rcqjiired by us to dfcliito from wboiu
he li:id the said Peiiiion, li.Hh done the same
by naming oue Duniimre, dwelling in Dundee,
a notary there : It is rjur pleasure, that you call
tlieui before you; and liaiing received the laid
Mr. Peter Hay Ida information, and examined
tlie said Duninur^ concerning the aiitlior of
thiit petition, and who may he any nise acces-
Xo it, you infurm yourself so far as you
nil itiings cnncerning it, and certify hi
what ye find thereaiieni, -that vre may cause
take such further oidi-r nith these that shiJl he
fuutid to have hnd hand therein, as ve shall
fiitiii);. And for yonrso doing, th«e pre-
shall be your siidicjcnt warrant. Frnnour
court at New- Mircit, the 3d of March 1634,"
Sdly, Repents the infamous Libel proitaceil
by Mr. John Dunniure before the loids of thi
committee upon the 14th day of Match 1634,
with Ilia deposition made in presence of the
sameday; which iofamooslihel,
said deposition, is prodoced by bit
majesty's Advocnluponthe3d day of December
1634, before my lord Justice, and ii regisirat
in this process that day.
4thh, Produced iho Double (copy) of the in-
thmous Libel, interlined by the panuct, where-
of the leaonr follons. [This is eiactly the
dnutitc of the former, only wiih the Addition of
the pannel's intt rlinings, ivhich are these; First,
at letter A, on the illh page (or iSf this tol.)
tliere is interlined by his lordship these nonls,
inned in the lormer double,
e as tills, it hath not beeu
I represented to your mi-
, that.' And attbisiuBik
re wanting ia, ibis double,
has, viz. ' VVbicb bkisal
I would never have confounded.'
letter B and C, on the same piff
thus, B of religion C,isiaterlined in this double.
And the last mterlined iicords in this doidjieare
to come in as maiked on the page, betwixt
C and D, these words, viz. To suQer to be in-
troduced.]
Item, Produces Mr, John Dunmure's two
Depositions, made the llitbof March ]«34,siii<
the Tth June after, wliereof the teuour follows:
" I Mr. John Dunmure confess and declare,
That the copy of the petition, renionattat to
the king's most sacred majesty, to have been
delivers by me to Mr. Peter Hny of Nangh-
.Inun, was intrusted by me to him upon bisfuith
and promise never to huve been imparted or
divulged to any other, nnd that he should rede-
liver to inc the same, after the readiog and con-
sideration ihereofi And that I extracted ibe
said copy nitb my own hand aguiost tlie diret-
tion, and by (hUIiouI) the knowledge of him
from whom I had tlie first copy anil wonaat
thereof. So help me God. And this for aiD-
plification of juy confession of the said matter,
mndo in presence of tlie lords commissi uneis,
receiver* ibereol, the Mtli of March iiistsni,
by Ihir presents written and suhscrif ed>nitb my
band at Edinburgh the t5ih of March iM*.
Sic iubicrib. Joan. DuNKtJBE."
which ni
vii. ' In such a cm
' unworthv to havi
ulso these «'or(is e
which the fun
And hetni
At Edinburgh, T June, ieS4. Sedenmt, Sl
Andrews, tlic earl of Roiburgh, Tn^asir,
Brechin, Clerk -Register, Advocat.
The which day Mr. John Dunrntur, beii«
893}
STATE TRIALS, 10 Chakles I. 1 03-t.— for a Libel.
my lord Biilmi
conference with lilm, my lord UAit
iSth af March, 1634 ; and declares, That at sired tiirii to go to tite earl of Traqiiair. tmd tell
cbeliiiielte received Lis Hudsupplication of mj I liim that betier t > - i » i
lord Balmerino, the said lord Balmenuo desired I himself ivnuld set
him that hfi wAiitd Lake iL and irive liira hisODi- ' irrifi. .Toaw . T>i:x
bini that he would take it, and give liini his
nioa thereof; and us he loved iiis credit, lie
would keep it, iind shew it ro no man living,
^ut onlj give liis own opinion there-aneiit :
And dtchir^ tluit ihere was nothing spoken
ahout the copying thereof; but is perEunded,
if that my hird liiilmerino bad known that he"
would have copied it, he would nerer hnve
^ven ihe saine out of his hand. And depones,
afler the receipt thereof he abode three days
ID Edinburgh, and dui'ing Chat time copied the
saiue, niid did return the same to my lord DA-
merino i hut ho wnyi told him that he copied
the same. And depones, he shewed the sajne to
no person, n'ur had no purpose to divulge ii, but
did take it home with him to Dundee, and did
keep it close oiid secret by himself by the space
of SIX weeks, till tbclairduf Naughlouncameto
him in his own chamber in Dundee of purpose
to aisk bis advice in some affairs, in respect he
was his ordinary writer, as bis custom was: And
depones, that after some conference with tlie
laird of Naughtoun, he took the same out of his
pouch (pocket), end said tn the laird, lie knew
that be was a mnn of jndgment, and well-ac-
quainted with the affairs of the kingdom; and
said. Here is a puper whereof lie would be glad
to have his judgment, pfoviding he woyld k>ep
it Mcret, and return the same back again :
Which the laird faithfully promised. Where-
upon the deponer gave Ihe said paper to the
laird. Whereupon he he^n to read : And be-
fore he bad ended it, he said tn the dcponer,
Mr. John, I intreac you heartily that I may
have this paper to Naughtoun, thai I may read
It, and consider it at leisure. To (he which
ibt; deponer answered he would, providing he
would keep it secret, and »hew it to nr. man,
as he had prnmiMHt : which the laird uf Nati^h-
touit fuithfully promised to do. And declares
upon his threat oath, That Ifhe had knoun the
luird would not have ket-ped it secret, he wiiuld
not have given it fur ail iheworld. As also de-
pooes, That within a month or Rve weeks after
the deponent went to the laird of Naughtouii's
house, as he was going throu(;h Fi(<>, and craved
tin; paper back with great earnestness ; who an-
swered Iritle, Eratle, ye need not be so curious ;
that there was .a genileiiian ut his oivii table
told him that there was three copies thereof
going through Fifi', and my lord Bahnerino bad
pveu one thereof lo Mr. William Scott, ano-
ther to Mr. Alexander Henderson, and ibe
third that the gentlttnan would not name. And
- the deponer detdares, afler iliat time he met
Naughtoun difers time in Dundee, and asked
the paper back, which he ei'er shunned. And
declares, about October last Naughtoun came
to the deiioaer'g cliambers in Dundee, and tiild
him that be had ^ven the paper to riiy 1-ird St.
Andrew ; at which the deponer was mightily
laoved. Item, depones, Atler lib fit^t decbra-
St. Andrews, .1. Morton, Roxburgh, Traquair,
D»- Episc. Brechin, J. Uay,Tl.o. Hope.
5thl,T, Produces three DeposiiiOns lubseriv-
ed by tlie pannct and the lords of committee,
one dated the 9th of June 1634 ; the second
the leth of June 1631; and the third the tat
of August 1684. Of the «hich three Deposi-
tionb the Icnour futlons, viz.
Apud Edinb. the 9th of June 163^. Sederunt
St. Anilrcns, Thesaurer, lloihurgh, Tra-
quair, B^chin, Clerk-ilrgiiter, Adtocat.
The ivhich dajr John lord Baliaeiino being
exHioiiied upon bit grcut oath, deponrs as after
follows : Liiprimii, depones, That ibc libel pro-
duced ii (lie jost copy of the libel ejven by hira
tn Mr. John Dnnmure, so farashe remembers.
Ifcm. Being Interrogal to what use he gave him
the s:init', and upon what occasion, depones,
TliatMrJrihn Dunmure having given to him the
copy of my Ir^rd Brechin his sermon preached
at hi) majetty's coronation, and Mr. .lohii hav-
ing seen the paper, he gave it to him to look
upun, hue to keep it to himself alone, and to
show it tn 1IO other, as he respected hi« lord-
ship's credit : And depones, Tli^;t hen^verknew
that Mr. John Dunmure bad copied the same.
Item, Being interrngnt from whom he had the
paper he gave to Mr. John Dimmure, depones.
As he rcmembrrs be received ilie principal of
Ihe same from Mr. William Haig, Itfrn, Be-
ing iiitwoDiit who was author and penner of
the said hbei, depones, That it was Mr. William
H:ii° who gave it him, and as he thinks, was
thr- iinthiir tbtrcof. Item, Being interrognt tn
what use Mr. William Haig gave his lordship
that p:iper, dep<iiies, That Mr. William Ilaig
said lie thought ita fit supplication to be pre-
Ecnud to hismajeity wliith he bad made out
of Slime collections wliich he had eathered upon
some conference! which he had with sundry
peraons the time of the parliament. Itein,
Bdng interrognt what he did with the paper
which he received from Mr. William Ilaig, de-
pones, he received two of them from Mr. W.
llaig, whereof one was to be presented tu the
king, if it bad been thought expedient, which
be delivered to my lord of Rothes; and llie
other be caused his man Mr. Robert Dali^leisFi
copy; and gave Mr. llaig his o«ii back
again, which he thinks be destroyed. And tlie
paper which he shewed Mr. John Dunmure,
wasitwhich his man HinCe, us be rcmeiDben,
Item, Being interrogat if Mr. William Haig
had any warrand or command to drriw np^the
said supplication, or if nny lord or nnv of his
knowledge was at the penning thereof, drpnnes.
That he hail no warrnnd from him, u'lr koew
of any warrand givfo to him, nor that any
was prewnt at the feruiiiig thereof. Ittm, ^
te^j] STATE TRIAI5, 10 Charles I. \6U.~'ne Trial <if Lord Salmerim), [««
DeclarM tliaC the «arl of Kothes and the de-
poaet liaving retid tlie suppUcaliiiii, thougbc it
no HBjj 111 to be presented in liij mBJeity, but
to be absolutrly lupprral. Ilfin, Beiogiiiter-
rogpt if he h'ici anynt' the saids copies, de-
clarci. After the receipt of Mr. Jolin Duiimurc
his copy, hecast che Huiien in tlie fire; jtiid for
die oiher, he did dtligpriQe to seek trie mnen
out uud 6a<i it, and evhibit the mmen to the_
lords : aod declared. Chat lie hnd no more con-
cerning that pufpoie. i'fHi, [<t!i<ig> intemignt
iJ,'Le|;uve anjr cojiies oftite said tupplicn lion,
c- aliewrd it to any person, depones, I'hat he
neither gave co|iic3 therco'', nor «bewed it to
nny except to the etirl of RotR-i and Mr. John
Dnnniure. Sicmlac. Balueriku.
St. Andrew), Morion, Roxbiji^h, Traquair,
Da. Ep. Drtchinj J. l]ny, l-hotHai Hope.
Follows ihe Tenour of ilic second Deposition.
a' ud Edinb. dacinio Kxto Junii, I63t.
ilk day Jiihn lord of Bnlmerinu being
examined upon his iinth if he knew any thini;
of Mc. William Il^iig his going out 'of the
country, depiinei. That lie knew nntliing of his
away gofn^ until Weduesday last ; that a man
of the lady Yenster'i tiild him, when lie was
fioing to Uaklrugh's burial, lliat Mr. William
llaig was gone out of the country. Ilem,
Bcbg inquired ancnt ihm part of Nir. John
Duniiiures depoiiiinn, That afier his first de-
claration he went to the deponer, wlio after
conl>ri>nce with him de-ired bim tliat he would
go to ihe ear! of Traquair, and say, 'That
' better men th.in the lieponrr himself will tet
' their thccs iheroTO;' tlie seid lord B.iiinerino
depones, Tb»t he never |;are Mr. John Dun-
mure such a coniinission, but only tuM him in
conference, Tliat there were better ineu ihun
the deponer himself wlio knew of that matter.
And being inquired nhnt iheba were that he
meaned of, du pones, That It was the earl ol
Rothes, to whom he delivered the supplication,
conroniito (he (bnnerdeiiosition, Ilem, Being
inquired whether he h.id inierlined tome lines
in the Enid libel which was Pthibiied by him
to the lords, and whether he did ihe snme
before he shewed it to -Mr. John Dunmurc, or
to ilie earl ot Rotlies, depones ihat it was
tlie earl of Hothes to whom be delivered thi?
sufiphcutiun, conform to his former deposition.
llfui, Being inquired whether he had inierliucd
some lines m the said libel which was eibibilcd
by him lo the lords, and whether he did the
same befjre he shetved it to Mr. John Dun-
mure or lo lheanid earl of Rothes, depones,
I'h'.it Kir. John Dunmure never saw this inter-
lined libel, but only .the copy which was cast
in the fire after the redelivery thereof! And
depones, That the copy interlined lying before
the lords was the copy delivered "by him tn
the earl of Roihes, hut was not interlined,
wliilc ihe earl of itothis redelivery thereof to
him: Anddepones, That never any sswit since
ilie interlining thereof. — Sic lubi. Oalhehiko.
Sr. Andrews, Morton, Roxburgh, Traquair, .
I>B. Ep. Brechin, J. Hay, Tlioiuos Hope.
by whi
Apud Edinb. the iirsi day of August 1GS4.
Sederunt, St. Andrews, Tbesaurer, Uoi-
burgh, Siirlinit, Traquair, Binbops of Edin-
burgh, Koss, Llerk-ltigister, tlie King**-
Tbe which day John lord Balmefino being
asked upou his great oatb, if he shewed to Mr.
[laig the Warraiid of his appearance before ibe
hiids upon Sutunlny the 7lt) of Juue, depaues,
ihut after dinner Mr. \la\^ came to his iiousr,
uud asked by what warrtiid he whs conveucd
id tl.u dtponer took the
pocket, and shened the
same: and adheres to liii lormcr deposiiiuo,
aiient Mr. Hatg hb parting, or lo tbc pur|:0:e
thereof. Item, heinx in:errogat if he received
any titters from Mr. Haij; since his parting, de-.
poued. that he received at his buck cotnihg
from B:dcltugh*s burial a lelter from his lady,
direct from Mr. Hnig, but without eithtr date
or place, which he produced : as also received
from Thomas Haliburtoii a letter direct from
Mr. Haie, wiih some note concerning my lord
Jedburgh's busuiess. And sick-tike depones,
he received aletter from Adam Wotl) which
cuncemed some business betwiil my lord Yeas-
tcr and Mr. Hnig ; and in the end desired the
deponer to assist air Lewis Stewart, and oiliet
fiiendsthnt he bod nritien unto liir procuring
of bim a remissiun : which letter, alier the de-
poner liHd'deiilt witli ihe loid Veasier, he tun-
celled and burnt. And last grants he received
a letter from Caraphire the srth of June, nhich
he received from M:-. noberi Bruce; which Le
exhibits, »nd wbiirh letter bevs Mr. Haig hai
granted lliat he was the penner of the saiilsup-
plicatioii, and iherelore pi'otesis that the same
may be deliiered u[j and j^iviii to him. And
being asked anent that part of the said letter,
which iKnri that ihe eM of R'lthcs niid ruch
other honest men that did once approve the
said supplication, if the deponer did evt-r allow
and npprove the sauien ; answers, that he did
never allini Dor ajiprove the samen to be pre-
sented Co bis majesty, but thought ' '' '
supprest. And m ilie
Tlie same dav, in presence fuiesaid, it being
naked whether lie did allow and approve the
s.tme himself, in Che matter and substance; lie
declnred, liiat he neither allowed nor allows
the samen, and declares he ctmdemns the samo
both iu matter aud form, .S'ic luti. Balme-
Si, Andrews, Morton, RoxtmrEh,
Stirling, Traquair, Da. Ep,
Ediub. Jo. llosse, J. Hay,
Thomas Hope,
ethly. Produces Mr. Robert Dalgleish, scn
vitor to the pannel, his DepoiitioDs, dated Jalj
3, 1634, whereof the tenor follows,
Apud Edinb. 3 Joly 1634.
The nhich day Mr. Robert Dal^Jth beiif
t rest adheies to his fur-
697]
STATE TItIAI5, IOChableU. l(J3+.-/ora IiM
[699
aworn upon his kneei.nnd the libel being shewn
U> liim, denies ihaC be knows ihe hind-writinf;
or the writer: gnuitt that m; lord Balinerioo
being in Ilia place of Bumetawn sliortly after
die p«rliameijt, and b«inn lo gu to Ediiibuixh,
about tbur after noon delivered to the dejionir
B paper to be cnpicJ, wtiich he diJ copy tliat
snme uij^ht, and eeni it with ths cop; therruf
to bis master inclosed in a paper, ilie iieit duy
in the morning. And being mked i( that lie
bad copied Hiiocher tu himself, grains itihC be
had made Hitotlier copy which tie keeped tn
himself, which he diil vrithout the command or
knowledge or his master; which cnpv lie ei-
hibiied presently in prir»ence~ of iJie lords.
Item, being demanded if be did cotmnunicut
ih-it copy whicli he keeped to himself bi any
oilier, depones upon his gc«at oath, that he did
aeitlier show nur give the copy lliereof tu any
other: bjt grants, while he «as copying the
same in Bametown, Mr. WUJiam CuUUI mi-
nis er of ihe purisli came in and read the snme,
but got no copy thereof. And alvi depnnes,
That since liie beginning of the trial about
Pnsch (Easter last, ihe Indy Balmerino asked
of ihe depiiner if he had keeped n copy of the
foresaid ribtl to himself, and desired a eight
thereof; nnd when she heard the same read,
slie Slid that lie «aa a fnol in keepini:, and
bad him cast it in the fire.— Si'e ttibic. Air. Ito-
■ EBT DaLCLEISB.
St. Andrews. Morioun, Roxburgh,
Stirling, Truquuir, Jo. RoiseD.
J. Ilay, Thomas Hope.
Tlhly, Produces Mark Cais his Depdsition,
dated apud Edinb. the 31st of July, W3i.
Sederunt, St. Andrews, Roxburgh, Stirling,
Traqaair, Hosse, Clerii of Register, Advo-
it eight or ten days before Mr.
- li of iheci
, Thrit
'. Haig his
y funh of ifie country, lie beiog in
'. Haig's Cham bet, Mr, Haig asked liim what
news; to whom lie answered, he had no
ntws, but that he hejird that my lord Bnlmeri-
no nas troubled for a pptition that had been
written. Likeas Mr. Haig asked hiui if he
knew who was writer thereof, wliilh he deponet
that he answered him he knew ni^t, neither did
be know. Thereafter Mr. Williani Iltiig told
him ihflt he was the penncr thereof, and took
ntit iliepnperand read it oier toliiin, and said
tliat Rjithea and Balnwnno knew the paper,
hecatiM it »hciuld have been presented to the
king. leein, Being asked if he knew uf Mr.
Haig's awny going, depones. That upon San-
day the Sih of Jiiue the deponer being in New-
bottle kirk i-.t tlie>»iiiiniunion, Mr. Haig senta
boy to him before ilie ending of the '«rmuii in
the afternoon, and desired liiin tu hmhc out t.>
him; who came out andnictivith him in ilie
hall uf Nenbottle, but spake notiiing with him
there. And thm ther went out togetlier to
Hie green of Newboltle, wliere he told the de-
poDcr that lie was to go to the South Country,
Maiwellheiigh, disponed by him to the eafl of
Itoiburgh, Ihe sam of S(J,000 marks, which he
had paid to Mr. Jnlin-Sharj^ and others ; and
that there rested yet 8,400 and same od«l
marks : And that he had cnLtn the deponer hi«
name to tjie bond thereof to his own use, and
ihat he would irnst him iviih it till bis return ;
anil tlien delivered to him the bond thereof,
and said to him tlint lie would return shortly.
Ileal, Depones, thnt he received a tetter from
Mr. WJIliaiD Haig from Ynmiouib, in which
there was inelo.-ed, a letter direct from Mr.
William Haig to Thomas Haliburton, which he
sent to the said Thomas : And the contents of
the letter tu himself was. tliai he desired the
deponer to assist his neiihew, the said Thiimas
Haliburton. to gel a trunk carried ID Holland -
by the address of Air. Robert Biuce ; and that
he should make the said Thomas Ibrhear to 6o
it, if 1 should find by sir I«wis Stewart the ap-
pearance of the quilting of this service. And
depones, That he ahewed ihi; letter lo Thnmu
Hnlibuiton, who was then prewnt in Edin-
burgh, and declared to tl,e said Thomas, thaC
he would not tpeak the said sir Lewis Stewart
in such a business ; and rare (tore) nut so
much of the letter as concenied sir Lewis
Stewart, and desired the said Thomas that bs
>Tould lake it to him, because sir Lewis knew
Mr. Haig bis hand-writing: which the said
Thomas refused, and said that sir Lewis would
heKeve him bat (i. e. without) the letter : Anrl
iimnediatcly after he read the hail letter in
presence ot the said Thomai. Item, Remem-
bers that tlie letter did bear that he nai pre-
sently going ahrt>ad. Iltm, Remembers that
he received th>m Mr. William Haig since his
Caning in all three letters, whereof the said
■tter was one, and the other two which lie ex-
hibited to the lords. — Sic labt. Mars Casi
with my hand.
At Edinb. the 31st of July, 1634. Sederunt,
St. Andrews, Thctaiirer, Roxhnigh, Tra-
quair, Edinburgh, Rosse, Clerk-Register,
Advocat.
The foresaid deponent defjonei. That the
90,000 marks paid to Mr. Willinii! Ha^ upon
the Saturday, was employed as afier nillows,
viz. 8,400 marks to Mr. Juhn Sharp; then
rested 11,600 marks, whereof ihere was lent to
the earl of Lothian 7,600 marks, and 4,000
marks to the lord Balmerino ; qiiereforc (for
which) the deponer received honris wliich are
hliink ill the name, in the depoiier's hands.
llfm. The depooer producerf two iettert frmn
Mr. Haig, one of the date ninio Junii from Bi-
merside, with a command to bim to receive o
packet to be delivered to my lord Balmerino (
which packet lo his knowledKe and memory
Adam Wait delivered to my l..rd Balmerino.
Hem, The other letter of the asd of Jane,
daied from no place, which the deponer reeciv-
ed from AdHfn ^Tatl, who had in hand a letter
tu n)y \ani of Lothian, which be received : end
delivered a letter to mj lord Balmerino, an^
699] STATETRL\I^, IOChaslisL iti^.—Vie IVial t/ Lord Balmtrmo, [700
another to iheearlof Traquair; wliicb letCrrs
nere c^eiverl b^ AJaiu Watt Iroia sir LCwis
Stewart. Ittm, Depones uprin hit grent untb.
That he never opened tbe litlle colFer, nor
trunk ; but once thai be opeaed die little cof-
fer, and took out the keys of tlie trunks, but
never Btirred the papers, nor none others to his
kiioulcdge; but timt he henid tbnt Thomas
Hahburtoii had looked in tbe coffer before, but
knpwa not nbetber he took any papers out or
oot. Item, Declares that tioce Mr. VVilliau
Halg bis away |oing, there coDie a trunk of bis
Ijome, which is iu Wiiliam Dick bis hands,
whereof he has the key; and that he never
' opened the same, but alleuarly (only) once at
the desire of Mr. Alex. Johostoun advocal,
who alled^ed he had some clothes and oihiir
gtar therein, which he bad put in Mr. Hnig's
trunk when Mr. Haig and he was at {y>ndun
the last Tacaiice. And the dpponer grants he
receiied ihe key of the trunk from WiUiam
Frier, incliised in a letter Sraai London written
3' the said WiUiBm Frier, and dated before
r. Ilaig's goiJig away out <tf the coutitry.
Item, The d^oner remembGrs, that Mr. Uaig
tuld liim that the pamphlet was written by a
Diau employed by the lady Litnplutn fur (hat
effect. — Sic ciibi. Mabil C*ts, " ith my band.
St. Andrews, Muriuun, Roiburgh,
Traquair, D.i. Ep. Ediub. Jo.
Russeu. J. Hay.
Sthly, Produces four letters from Mr. Haig
to tlie pan tie I, dated 97 June, I Jaly, 10 July,
and 1 Auguii, 1634. Of tbe which four let-
ters, the tenuur followit :
To tbe right honourable tn^ Mngtilar good lord
niy lord Balmerinn, These at B^rneiown ;
to be sent to hiin by Mr, George Lawson,
or Ad;iui Wntt, writer in Edinburgh.
My lord ; now that it has pleabcd God tcr
bring nie sately through the seiis, thou;;li slowly
(in three days and three nights from Yamiouthj
to this place, I begin with these to pray your
lordship either to use ygur talent to get ine
home otbeiwise, gr to give vigour la tliat way
I wrote to your lordship from YariDOUlb. I
tliought it tit to bf taken, to get a compendi-
ous way to an end of my trouble* by their
means, who fur private respects liave given the
name of a crime tu thai Supplication, which
though I cuQQOt deny tbe pennuig of, yet would
not have brought to uu any inconvenience, if
it liad either been used as once intended, or,
after changed of purpose, kept from those base
~ bodies that put it into the bauds of Micb, as
have been able to uiuke hard construe lions of
it. Aud see.ng for wiialsoever I now sufltr in
my private fortune, in my weak body, or in my
Dame, by die ccnuivance or knavery of Mr,
John Dwimure, I may justly blame your lord*
ship ; 1 do here abjure your lordship, by ihe
persuasion I have of your own integrity, of
your honourable uiiad and good-Rill to rae-
Nards, mid by yuur bnowiedgr of tbe pains I
We Wen ever wiilin^ to take fi>r an ingeuuiius
&irtherance af all lliat concerns my lord of So-
merset amongst us ; even to take pains to ob-
tain to mea remission, for doiug that which ii
termed a crime, and tliat by ineaQs of ibcse
that have termed it so; and make tbom sensi-
ble that it shall be more for tlieir credit so to
make an end of the business, than to dtive me
to such defences and apologies as the publiih-
ing of will gull them, more than the hhizing of
tlie Supplication. Witlml it may please your
lordship to represent to my lord of Rolbes,
and such other honest men, as I kuowdidonce
approve that Supplication, that since a haid
cnaracter ii made of it by thcic that have
wrested in the king's ire the sense of it, tkj
should do right both to themselves, their priuce,
and country, by ellother Petition to represent
tliat ujiereas they intended to have delivered to
his majesty the foresaid Supplication by such
(bat church- article, and
»t Imnihk
apects, very C'impatibia with tliei
duties to his m^esty ; yet since the fu^
Supplication has come tu his majesty's banils
by such as bave made wrong coostruclions of
it^ therefore to conclude craving humhly that
his miyesty would give them leave to be inlci^
preterm of tbeir own language, and the deaira
of (beir Petition (for tlie reasons It contataetli),
which is, that no private respect, but mere af-
fection to bis mujesty, did rule tbtir wboki
carriage in tbe bte parliament. But in tbii I
submit my deiiire to yuur lordship end iheil
judgment and pleasure. Howsoever, since I
suffer for that which truly had their allovance,
I think they are in honour bound to use dis-
creet means to reliere me otf this cross, at less
to helji my poor estate in some racasure la
bear out the Durdeii of it. I kUlfer enouth in
the toil of my body, and wouuds given lo fj
aarae, though your lordships amungst you fiie
me of all the charjics that will he n.evitnble tu
me in tiiis course '. a little help from eacli ho-
nest man, that will possibly pity me, woukl do
this business. Thus your lordship may lee
there lietli a heavy burden, on my sloniic^
when it is brought so low tis to beg ; yet I thaS
rather starve than discover so much to soy
other [hall your lordship, to whom only 1 cm
lay open the silly and low thougbls that misieiy,
aud the fear of it, may bring to, my lord, JOM
lordship's most respecting servant,
Campbirc, June S7, 1634. Wm. llnii-
Foilscript. Whatsomever bonds aie m ni»- ,
neys to my behoof, J do not think one giost
thereof mine, till my lord Yeast^r he sa-
tisfied; which will be easily done (uj>0" tlie
grounds I have seiit a note of to Mark (.'ass), it
your lordship move ban to a suhmissiuu (where-
in Mark Cass aud Tboma? Ualiburton shaH
take bufdeu forme); but we will never eiiil
olher«ise. Pray my lord of Rotbes W Wp
your lordship to iuiiuce him to a suhmissic'u to
any tbM your lordship and he cau condescend
upon ; and tell him of bis old letter to my loci
of Ancbram, That he should settle with ai*«
any mail's sigU I liked. But get bim to a tub-
1oi-\
^ATE TRIALS. IOCkablbsI. 163+.— /or a M«/.
[701
miMHin in writing far hi< good u veil at mine :
forirCod please to oil me, he wilt liiiil that
he shall not make «> good a condition, as lie
mnj do now.*
The Second Letter.
Jllvlord; Jastai I htid done closing of my
lelton written to your lordship with' Olhers nt
Camphirr, tlic consCTiator newly arrived Iiere
from London came to tiiy chamber in ane inn
keptb;liiimothcr-in-lnw: nnd hearing;! was ar-
rived there from Scollaiid, was very curious to
■5k news. And bewuse 1 eouid tell him no-
ihing, at last wandering, asked me by waj of
question, If I heard nothing of a petitioo, which
a numb«- (35) Siiid lie of lords had resolved
to give to the king, craving n relief of the act
made in the church-bfi^iness, mid a dischnrge
of anj further jiayment and taxations. 1
liifgbeil, and told liiio that I durjt awure
him llicre wii» no sach mniter. 'Ihat cannot
be, said he, for I have this frura such as has
beitiutelligence about ihe court; nnd have seen
« letter, liearing under the hand of one of the
faimself very tnodeatly, and was to be befui
thein the iieti doy, where they lioped to gel
food salisfactinn in all they neicabout. Then
I answered, I heard your lord&bip was called
for by some of the council, but hati not learned,
nor s» much as asked for what ; nnd that the
cuunc'l might have many ihingi ado with your
lordship that I -was ignorant of, and could not
in go.id manners inquire. I protest, said be,
that is !i buwness in all men's mouths about
court ; and I ivonder, said he, jou have not
b^ard uf it. I have not tndy, snid I : And so we
left that theme, nnd drunk together, and within
a quarter ane hour nfier I left that.town, and to
fine Alexander Speir, a factor in it, a packet to
Air. Robert Bruce; under whose cover there
Lt a letter of the '3Tth of June to yourlonlsiiip,
the contents whereof I will not repeat hei^,
but beseech your lordship to have respect unto
it, as well in a'> far as it beseecheih your lottl-
diip to use your talent for ^ortening my trou-
bles, a) in the care I humbly beseech your
lordship to tnke to induce my lord Yeasler to a
■ufainission, witbout which there is no hope of
any conclusion with him. I will long to hear
from your lordship what poetnre this business
works itielf unto, and what success I may ex-
pect in the I'lij I Hill contented betaken to
end my trouble s, by tlieir means that has occa-
uaned them. Thus bann* nothing to say but
what i h;ive formerly writt.ci., and beseeching
your lordfhipnotm lies wear (slow) in writing to
me, (under cover to my lord of Aaton, James
Uowatonn or James Wrijbt, merchants in Am-
■terdsni, or lo Aleiander Speif iu Camphire,
Or to William Murehead by the way of London)
I crave leave, nnd- r«t, my lord, your lordship'"
(nmt respecting servant, Wu. Htic
Amsterdam, July 1, 1634.
Directed to the right hi>nourable my singnla
good lord, oiy lord Bnlinerino, These, a
TheThii>II.etter.
My lord ; 1 know that repetition of my de-
sires enprest in my letters lo ynur lordship iVum
Ynrmouih, Camph.re, and Amsiertbiui, wen
enough to accuse me oi distrust of yuur lord-
iihip's either memory or goud-M ill to me-nards.
Wherefore llicse are only tn besetchyour lord-
ship to let me know what pnstute th'.it biisiiieai
is iq, which occasiontd my v'oyiige hither ; und
what issue I mny expect by yuur lordship'*
means, and such otlieia as 1 Inue wriiten unto
there, aa'well of the troubles I am now under,
as of that buisiaess I prayed your li>rdsl>ip to
manage with my lord Yeaster. I intend to fin
about Delft before the Srih i^^tBut, and stick
there till I hear trom Scotland or Kngland what
I may expect. So voilr lordship niny pat all
) Mr.
(though now silenced by or-
der from Canterliury) of tba English that nre
about their staple in that place, Mr. Hubert
Bruce, or Mr. Atexnnder Culvi^l, by David
Junkeu'i means; uiid oihernisc also will set
them sent to Mr. Forbe;, and he will make
themhiid me: so will William Murehead, ifyuur
lordsliip please write that way too. My lord,
your lorrtshifi's most respecting servant,
Croniug, 10 July 1634. Ww. Hitc.
Directed, on the back thereof. To the right ho-
nournble my singular good lord, luy lord
Beliucrina, These, at Bametown.
Tlie Fourth Letter.
My lord ; I send here lu your lordship mj
lord Jedburgli's discharge for the crop 1633,
and his daughter Mary's receipt for iOOi. witb
a protection Ibr my loril Jedburgh, to be made
me of, as your lordship has occasion. Uii-
lady was speaking in nie to procure her b ■
house near New-boillr, called Bryan kirk ;
whicli canaoi be, because my lord of Lothiui
has iL'nt It to his uncle sir .rolin Murray. But-I
intend lo speak to Mark Cass, and try if he can
spare Cnckpen ; which being near Coal, and
out of Tiviotdale way, I think were very con-
venient tor my lord Jedburgh, since lie suita
sotne house in Lothian, to be free of the im-
portunity of his Tivinldate creditors, and uther
inconveniences his dwelhng at Jedburgh makai
him obnoxious unto. There is also within this
packet Mr. Lewis his discliajrge of 600 marks
to my lord JedhurgI,, and a note of Mr. Lewis
bis writings, with an assignation to be tub-
scribed by my lord Jedburgh, for recovery of
some moneys Ivepsid for Mr. John Home: I
intcndeil it for Mrs. Anne's help, before your
lordship and I went to Tiviotdale ; and when
his brother captain Home was assisting his
chiefs proces!,'und was liketv to lia vie. ad ven-
tured lo pay that sum for Mr. John, if be
had found him pressed (being then in EdiQ- '
burgh) by some good caption. It shall be well
done to make the best use of it vet that can be.
I have also inclosed in this packet Mr. Coma-
liuB Aneslie's discharge for 3C>0 marks for the
intereat of hia money preceding Wbitaunda^
71I9J STATETRIALS, IOChasiesI. l(m.— Tie THat'i^ Lord Salmenno, [IQi
Inst: I WM not uble tn pay ihe principiil till
the Tth of June, anil Llien he ie{.,sed: 1 liop«
to do it honestij at Merlima*, Iieftire whicli
lime I hope tii renin armed ngiinst all incon-
veniences ilini cobt'nr pn»«r slinJl be able to
put upon nie, b; eril ititrrpreiiiig nhnt xas
Hell iTiennr'l. 1 have Icfi lo my neptiew Tlio-
. mas Hiliburton Che key of my cliamber and
I trunks, iviih direction to be girel to your
lordship to be made Hse ot during iny absence;
(thereof I Uwll write to your lordship the
reisim at more length by the first ocoision. I
rest, Mj lord, jour lordsfiip'i mo'-t nfieaiouale,
and respecting servant, WillIjih Haic.
Direction on the back. To the right bnnourable
my singular good lord, my iord BtUnieiino,
These, 1 Ai^. I(j34.
Produced to ttie lords eiamitiRtors bv my
lord Balinrrino.
9ihly, t*roduce* three ewracts of parliament,
wbereollwu containing tlie names of the enrts
and lords proient at purlianfent 1C33, Cngether
with ihe names of (lie articles at that some
parliaiiienc ; of the which three oitnicis (he
tenour iollowg :
Ibe Names of llie Lords of the Parliament.
Archbishops; St. Andrews, Olascow. Bi-
ibnps ; Dunkell, Murray, Rosse, Brechin, Gal-
lonuj, Dilinblaine, Caitlin«$3 by Dunkell his
Koiy, Islet, Argyle, Orkney. Duke of T.ennox.
aiT^ui) of Hftddingtoun, marquis ol' Huntley
by the duke of Lennox his proxy, marquis of
Duiv^hiss. Earts; Ar^ylo by Mortoua his
proxy, Erroll, Mareschidl, SutJicrLind by the
duke of Lennnx his pro\y. Mar by lladdiiig-
loun his proxy, Buchau liy the marriuisa of
Haddinntoun his pruxy, Itutlies, £gliiigtoun,
Cassiles, Glencairne by Kothes his proxy, Mur-
ray by I.Tiuderdale liis proxy, Nitli-dalc, Win-
toua, LinlithgDw, Penh, numfermling, Wi|-
toun, Kineliomc, Abercorne, Tillebarne, Keihe
by Kino»Tl his prosy, Galloway by Traquair
his proxv, Scaforth, Annaudale, Lauderdale,
Carnclt by Trnquair his pruxy, Loihian. Vis-
counts', Falkland by Stirling hisptoxy, Dunbar
by Traqiiair his pruxy, Stormounth, Drumla-
Derk. I^rds; Lindsiiy, Gray by Mortoun his
proxy, Yeutter, Seinplr, Sinclair, lie rries, El-
phinstiiun bv E^lroerinu his proxy, Ggilvy, Tor-
phichen, Spynie, Liodorcs, L<iudoii, Kinlois hy
Mortoun his pmxy, Balimerinoch, Bur lie,
II a ly rood-house, Conper, Lranstoun, Desk-
foord by Craiistounbisproxy.Melvill, Carnegie,
Rnmsay, Naper, Camerun, by Traqusir liii
proxjjNi'wbuixh by Stirling bis proxy. Weenies,
Coniorphin, FortUr, Hae by viscuuot of Air
bis proxy, Dabell.
Cominiisioners for llie buiroughi ; Sir George
Forrester of t'orstorpbiD, aad Mr, PAtnuk
' Hamilton of Little Prestoii'ne, for Eilinbargh,
principal; sir Patrick Murray of Elvhaoli, and
til John Hamiltiinn of I'reaiouDe, fur Iladdiug-
loune : sir Alexander Nisbet of that ilk, and
John Ilomu of Rentoun, for Berwick ; Wil-
tiim Dowglasi ufCalvers,and sir Walter Rid-
del! of that ilk, fur Uuibutf h ; James Murrey
finr of PUIIipaugh, and James Priuglt of
"" ' -bank, for Selkirk; Jauies Haynfbouib-
field, and Jan
sNat
llamittuun ofRaplocli, I
bert Griersim of Lngg, and nr John Chatters
of Amislield, for Duinlries ; sir Patrick Agoetr,
of LfKliuair, knight baronet, lor Wigtoan;ur
Willivn Cuiiiiinghaiue of CuDniughaiDdmd,
itiid James Chalmen of Gaitgirtli, tor Air; lir
Lodovick Uowstoun of that ilk, and Jsmci
JUurihead younger of Lech'ipe, (or Dunibai-
ton ; Hector Banniit^ne of Keymes, and JoLu
Stewart of Escoke, for Bute; fir Aicliibsld
Stewart of Blackball, aod Patrick I-lemmin;
of Barrcichine, lor Renfrew; Aichibald Ed-
minustoun of Dunlreath, for Stirling; sir Wal-
ler Uuiidass of that ilk, and William Dnn-
mond of Kichartoun, Ibr Linlithgow; sirAi-
chibald O^lvie oflnchmni'teii, for Perth; sir
Robert Gmhauie of Uorphie, fur Kincanlia ;
sir Alexander Irvine of Drum, and Thonu
Crombie i>f Kemno, for Aberdeen; sir Joht
Unckentie, of 'i'arbit, for luverncn; Job"
Cumphell Gar of Calder, and Jolm Dunbar of
Mi>yne, Ibr Naime; sir Thomas Uiqimtt of
Cro'inartie, for Croinartie ; sir John Scruugtr
of Duddiipe, and Duncan Cambel fisr of
Attchiiibrer.k, for Arityle ; sir J^uEhlaiw U»-
elane ol' Murvcre, for Tnrbet; sir JjKb lam
of Mewtoune, and Thonaas Miretoune of
Camb», for Fyfe; sir Harry Wood of Bunni-
tnun, nndsir VVilHam Graliameof ClarerboiM,
for Forfar; John Gordon of Innenoartlc, ibr
BanifT; fir Patrick Mnci;ie of Large, Ibl ibe
steunrtry uf Kirkndbright. 6'ic tubi. J. tin,
CI. negisl.
The Lords of the Articles.
Pro Clero; archb. St. AndretJ, artkfc-
Gln>i;ow, bishops ItJurray, Roxae, DuaibiBJac,
Brechin, Isles, Ar^le. Pro Nobihbus; duke ol'
Lenox, marquis of Hamilton, marquis ufDow-
s.\:\:-i, enri of Mareechal, earl of Wintouu, earl
[>f Roxburgh, earl of l^uderdnle, viscount 'if
Air. Pro Batonibus; lir George Forrester of
Corstorphin, sir Paltick Murray ofljlebink,
air Patrick Ugiivic of lucbinarten, sir JohnLd-
lie of Newtouuc, William Dowfilass of Carers,
sir James l.ockhart younger of Ley, sir Robert
Griersoa ofLagg; sir John Scrimger ol' Dud-
dope. Pro Burgis ; John SUclair and Gilbert
Kirkwood, Andrew Gray, Mr. Alexander Wed-
i<er!iunie, Paul Menzies, Gabriel Coaninr
hame, Mr. James Cockburne, Mr. Juhn Hsy,
Andrew Bell.— £ic mbi. J. Hjiv, CI. Ri^
And la^t produced nne Note of Artkltl '"
Parliaoieut in annis 1600, IGOG, lecr, Wh
and 1651, nbereof (be tenour follows.
" In tlie parliament held at Edinbuigb tbl
year of God 1600 years, the noblemen aftef
named were chosen to be of the lords of the
ariitles, vis. The duke of Lennox, ths eari of
M:ireschal,the lord Seaton, the lord Newbottte.
the end .if Errul, Ibe earl of Mar, tb« h*"
Leviogsloun, tord Fyvie.— ,$ic lutt. J. nir,
CI. Begisi."
TOSJ
STATE TRIA15, loCHAtLcsI. IflSi.— /wo life/.
[7im;
" In the pariiamcnt boUlen at EdiDbur^li-ia
the tDuntli vf Vnae t(i06, the noblenieti sfiir
luuneJ were cJioien to be of the lonli of the
■iticln,Tiz. )iiHit)uis of HaiQiltoun, mnrqdsof
Uuntle;, e;xrl of A rgyle, enri of Erroti, eurl of
Mar, earl of Gleticairne, earl ol Linlitligow,
lord Gliuna. — SiciuU. J. Hat, CI. Regitt."
" Id tlw pariinintnt hulrlen at Ediritiurgh ia
di« tnoDth ofMnrch 1007, the noUemcn after
named were cboien to be of the lords of the
aitidea, viz. eurl of At]iy\e, earl of An^us,
•arl Harescbal, eatl of Mar, earl of Kinghorne,
cariof Loiliiai), lord Klphinstotu, Roxhlir^h,
BlaD^Te.— Sic tuU. J. Uiy, CL Resist."
" In itie ptirliameiit holden at EdmLunih in
the month of May 161T, the noblemen Rfier
named were chosen to be of the lorH^ of the
aitidet, rt;. duke of Lennox, mnrquis offI:t-
ntiltoan, marquiii of Iluotley, earl of Argylc,
«bH oTModtrOiis, lord Oglky, lord Saiiiiunir,
lordScoone.— Sicwi*. J. 11 a v, CI. Reuist."
" la the paHiament hnldeii at Ediobur^li in
tb* month of June 1631, tlie noblemen uftcr
named were chosen to be tonli of tlie nriirles,
•th. the earl of Angus, the earl of Mortoun,
tlfe earl of NUhsdute, ibe enil of Wigtoun, the
*nij of Itoxburgh, tlie e:tr! of Bnlcteiigb, Joiil
Scoone, lord Cornegj.~-Sic aiU. J. Hay, Clcr.
Hegnt."
Alter I he production whereof, his majestj's
AdvAcat affirms, timt Che writs now produced
fiT verification uf tlie ditiay, the siiid dittaj a
ihcrebjr verified in ilie hail points thereof, je-
ferred tn the awiie ; and in respect thereof
protests, if the; clexnge (clear) upon so clear
proliation, fur wilful error.
Tliereaiier it was atledg«d lij the oannel,
(hat the eari of Itotbes's dejrosLtiini ougnt lo be
produced and read.
To the which it is answered bj my I/ird Ad-
TOcatf That he uses not tlie came as a point of
bisprobation.
To ihe whilk it is doptyed. That it will sen-e
(being read and produced) for clearing of the
pannel's innocenoy ; and that by inlerhguitor
of jticfore, the said deposition was by the jus-
tice's inUrloquiler produced and given up to
tfae pannel ; and therefore it is most necfuary
lo be produced to the assize, and cog;DOSCed by
Thereafter my Lord Advocat, for etchewin;
of delays, did produce the earl of Hothes his
deposition^ with this protestation, ThM be cjes
not the sRmen as a verificBtioa of the ditcay,
but only for satisfying of the intrrlogvilor eiTen
•ut by the jnstiee before, and to cut off all oc-
casion of -clamoar that any part of the process
were ititbdt«irii ; and wlien (be ])annei shall
Amnd any alleadgance or ol^tion (hereupon,
he shall have a sufficient answer, of the which
depMitioa the teuo^lr follows.
At Edinburgh, ibe 3d of July, 1034.
The which day John earl of Rotliei, beiuf
•worn npon lus great oath, and the librl being
shewn to him, grants cimt this is tlie libel that
was shewn lo him by or from my lord Baliae-
lino; whiehbctaekMid read Mil abauttncnty
seuce of tlkd eHrl of Cassiles and the 1
Yeasier, being niih him in coach, folng to
Dalkeilh; nhn fiudin)[ it of such a «tra,in, nnd
haviii); ti>ld (beni that iiis oiajcityliad gtrcii litm
an eipress command to suppress all ihut wai
of that imture, lli« depoiier and tliey, all in oiie
voice, thought it should be luripressed ; and the
deponer did put it in his pocket. And hatiu"
occasion tfaAt Muae day to meet his majesty nt
Dalkeith, and his mqeatjf felling in coiilerence
with liim nnent infurmation made to his ma-
ji'Sty HgniDithim, be purged liiuiscif clearly to '
his mnjeaty; and having received from hit ma-
jeMy of ijefijre strait commandment for sup-
pressing all petitions of the nature of tlut
wbiL'h ivng mined in the time of the purliamcnt,
he »lietved to hi^ majesty that liu had fiiilhfully
done tliu same eter sbce, and tidded tbir
word*; ' Sir, iliere is a Pi-tition given me
* presently to be looked upon and considered,
' whith 1 have in my i>ocket, wl>ich I bnie
' according to jour innjisly's coinuinnd sup-
' pre^s'd ; if your mujeity lie pleaaeil to luuk
' upun it.' Which bis iiv'jesiy nnswcred, ' It
■ is 114 matter : I have no leisure : I am -
' goi"g to the park.' And declares, thut it re-.
mniiKd in his pocket unlooked upun by liim,
' ■ ■ ^iy», or
snme back again, incltised in a paper which was
sealed, to my hiril Baliiicrino, to wh'ioi before
be had (old l:ii judgment of it, that it was shu-
geclier to ho !>uppreased. And deponts upon
ills great oulli, Ctiat lie ncilhershetied it to any, >
nor gtive,any. copy thereof to nny ; hut rcmeni-
hers before ho sent it to my Xird Balmeiitjn,
be caused copy it by liis o»u setvaut, which is
yet exiaiil, uncommunicated to any, and
whereof he had no memory at all, till hi- heard
that Mr. Pettr Hay of Naughlon had shewn it
to others ; and ihei) he searched tlic same, and
found it out. Item, Being interroeat if he
huew the hand-writ of the libel, or wlio was
the aullior or peoner thereof; depones, ha
knows not Ihe writer thereof, and knew nnt
certainly who was the authuraud pen ner (hereof,
till he heard that Mr. Witliani Hug was bruited
(i. e. named) for the penning tliereof, of whom
he had ever suspicion, because lie bos erer been
busy upon tucli idle and fnoliJi toyi. ^nd
being asked if he gave his advice unent the
penning thereof to Hr. William Haig, or Miy
other; depones upon his great oath, that m
neither gave liis advice Co him, or any other,
anent the penning tlieieof, but ever thought it
jit to be Bupprest ; and declarea, that he never
knew any conwltation either before or ftfter
anent the same. And (he said «Bri of Itothe»
promised with all diligence to send the copy
which he has incloaed to the loidi; and pra-
laised upon his oath and hotraor not Co copy the
same. Sictiit. Kotuu.
My Isrd Ai^pcat dedarei that be uses not
the Inst part of MarV Ca«* his deposition.
It ii objected and alledfted bv Mr. Alex.
fewsoU agviint the prebaiiori uf -uc diuny tdr
707] STATE TRIALS, lOCii.vaLBsI. \C>3V.— The Trial qfLirdBalmcrmo, [705
djced. First, T»tli«probHii<Mi of ihc first part
tut reof against ihe pnanel, Hsnuthiir, conEuUor,
He. tliHt the pnnuel'a nlleil)^cl intciliniii;; diits
iiat prove him tu be conE4iIt(ir nitli Mr. Dhiij,
M (lie pcDiiiiig und Rnt dmwinc up th(^tfoti
l<ecaiiic ibe |ille<lgecj inierliiiing A toag afier,
^ca, alter tlic olif r made Uiereot' to liis iiixjesty,
til nliom no Bubjecl can be pjetumed tu reprc-
■ent 0 supplicntiun inicriinen. And depoiition
10 tlint point ot' ditiRv, [lie pnunel's ilie IGih
ofjnac, whicb bears iticinteiliiiiiignot to have
he<Mi made nliile afier ilie en/1 ot'Rathes'^ rc-
(Jt-livery of I lie writing to the pniincl, nhich
was more rhan tix or suvf ii months alVr. Op-
pones aUothe other copy of llie wriiing quai^
relied, pniduceil liy iiij Lord Advocat, v. hicli
munis the iiiierKniiig; and tvbidi evinces [lie
■iiterliiiiiig not tu hare bctn at the penniug and
iliriniog thereof, and consefjuendy tlic alledgtd
JllttrlmlJ}^ proves not the pannel's advice in
llic penning und first drnvriog np tliereof.
It«[n, The alJedged intei'liuii'^ proves uot ilie
p.ianel to be consultor nneiit tlic scnnduloui
libel, because the said allcdged interlining is
not of any nistrcr of reproach or scandal,
n hereupon the «aid libel is non challenged, or
cna be challenged, anil sn has no ooftissioli
thereto as scandnlous; and therefore proves
not the pamicl's advice ancul tlie scaudalous
libel.
IlGin, The alledged intetlinini; proves not
«hat point of llic Hitiay, lieceusc by the pannel's
deposition, 16 June, tiei'Or man sbh it since the
ill tcriii ling thereo:'; und ihereroro nothing can
be enforced or concluded tbcrenpon, and is
dike as if the same bad never been interlined :
For eveii an iiiramoos libel found with a parly
ill secret, who did tnppress the same, and never
manifest it to another, does not make or prove
liiin guilty of the infamous libel.
That part of the dictay, bearing. That by
letters sent by Mr. Uaig to tlie panncl, it is
aliiriiied by Mr. Uaig, that lie had tneallutvauce
of tlie pannel to the penning of tho writ quar-
relled, is no ways proven by the missive Utter,
nor by any of them. And where the saidmissives,
or any ot them, may seem to concern any pur-
pose of allowance of the wriliilg ijuarrcllcd,
t'lat is no ways of the pauneL's altowauce, nor
can he so expounded ; for the letter from Cam-
uhire, dated 4r June, directed to the paiuicl
liiiu^elf, tind which speaks of their alloivaiice
in the tidrd person, extends not to the pannel,
and makes not the allowance tliercin mfntioiied
(if ativ be) lo lie the panuel'a allowance.
■ Flinler, Alllioush the stiid missive ofBrmcd
M the dittny bear^,'yet the same caii no ways
l»e respected, iior make faith ngninst (lie pnii-
ncl forbisconvictinn; because Mr. Baijjbting
guilty Hs author, his atledged declaration '''
any be_, (no ways gmntiiie the same) cau be
prikbKtion at all against ilic paimel ; bccaui
IS an nniloubted maxim in law, ' Quod aoi
' aut particepf ciiminis adversof aUum fidem
'Won fiicit: Acromplice in n crime's declnrn-
lien cannot make probation agaitut any othei
wlicm he olledges (o be ^uil'v,
To ilie iin>t part of tli^ dittay, niid proliation
lereof, opponcs ihc ditiay iiviif, which bears
Ir. Ilaij' to be uuthnr, and wliicb make*
jiiiC uf dittay agaiubt the pannel for not ap-
prehending ot Mr. Hnig, author thereof. Op-
poots ylso Mr. Uaiii's grant that he vat author
and penner thereof, contained in his ipiuivg
Utter, sr June. OpponcK al») Mr. Ilaig his
fleeing furtb of the country for the aame cnuse;
and since his fli|iht, liis intreatiuK of his friends
for procuring tu liiui a remission for it, as a pio-
purted in the ptonel's depositions Uie l»t uf
Auttust. Oppones.also tlic pHnnd's ouih aud
declaration tJie 9th of June, wherein he lus
depouL'd, That Mr. Haig hnri no wmrant from
'' and tliDt be knew nothing of the forming
Oppones aho Matk Cass- bis dcputi-
n hie h bears Mr. Uaig to linve conftued
n llmt lie.wus the penner thereof.
is alk-dged bj Mr. John HUlrl againit
the veriCcutinn of the dittav. That tlie pannel't
depotitiuns cnhnot be dsciI to verify lli£ dittay,
inferring capital ^uilt and puni^unent upon the
pannel, bccauM ihe pnnnel was induced io de-
ponennder promise and nbsuraiice of iuipanity:
And in law, a confession dieit upon pTOmisenf
impunity, cannot iuforcc capital guilt, ai is
abundantly aslructed in the dispute. It i»
likewise elledged by him that Uunmure's di>-
noiiition, Dalgleihh's deposiitinns, and Ilaig's
letters cannot be tued against the pannel, be-
cause they being all iuvulved in tlie same »els
whereupon the pannel is indicted, they cannot
prove against the pnnnel to dl->bunteu 'thei»>
relies; seeing in law these nith «hoii) scin-
dniuus pieces nre found arc presumed to be
authors, unle^ttheyco idesceod upon the author
or deliiereruf these pieces to thdui.
It is alUdged by Mr. AU^nndcr Ptanoa,
That the second pert of this dtltayagainsttlif
panne], ns guilty of heating, coucealing, net
apprehending, divulging of ane infamous liliel,
&c. is not proven, twcaoiic there is iiotliiag
adduced Mainsl tlie pannel, to prove tlte puu?
nel's knuwTcdge of ine wriiing quurri lied to be
scandalous or se<litious, wjihout which tlie
pannel t* uoi, nor cannot he counted guiltif of
the crimes libelled. And oppones ilicretu ibe
just and probable cause coutniited iu tJie second
exception, oud rcroantnt defences propiined
for the pann«l, which the pannel hud moving
him to think oiherwise ot the writing .qunr-
lelUdi'towit, Tbesviitin^ilscirin title, lunn,
strain, beginning and ending and in all, aa
humble supplication; the same being first deli-
vered to the pannel as « supplication to be pre-
sented t'l his uinjesty. [The pannel's depnsiliOD
9 June.] Next was deliverid by the penMl
to the •url of Rothes of purpose tu be ptw*-
ed to hjs majesty, [The pannel's deposition
Hiresaid ; and also affirmetl bv the dittay itseif.j
Last it was offered by mi lord of RoOies to
hi.maiesty; as the carl cbF Ruthi-s's depuut»)n
heurs,'3 July : Whilh offer of my lord uf BotbM
to his majesty is Bckno«ledged by my I^^"
Advocat, coiifutni to his lordship's answer H
the defences propoued iui tho paooel. Op-
JTATE TRIALS, IOChables!. \Git.-fora IJIJ. [710.
.|;iv!iintl>t;poncrofit uUiil-lfltli Ha onii iniui,
isauUicicnc to viiilV iliBt unit of tlie diltay.
To thewliilk UailJtd ll»iz Lis coiifMsTou u>
709J
ponei. alwi the pannet's quality, lire nnil cim-
venation, which Is in audi a, fur distnnce IVoiii
tlie critiiei libeled, ttint it excludei nil pre-
■umpttoQ ODil prutjabititj thereof ugninst tlie
To that pniiit nf tlic Dinny (Egnivaliiig tlie
liaDnel's not up pixbe tiding Mr. lliiiir, bj tlic
pniiDel's shenin^j to hini the wnrnuit uF liis
citBiioD befiire tlie committee and tlicrcb^ jjiv-
inz bim ocCdsioii to eicape ; oppones the ]ian-
nei's depoMticin nf the IStli of June, wliicJi
htan that tho piinnel knew nolhiiig uf Mr.
llaig hii jcoing olf tlie country bEfbte (be third
d»y after Mr. Ilaig's eicope.
That |)nrt nf the Dittny Lrnring tlie pnnnet
to be guilty of divulging and iliipertiiiig of tlie
alledged infmnuji tibel, l» not proven, 1st,
't'he pannel his cnuning hir. Robert IJiil^eiih
bis nrraiit copy tlic same, prom nit ibc
patinel's diipersini; thereof in public; Mr.
Kobert Diilgteith bdng the panntl's hi,ii-Ii'>)(l
Mrcnnt, aim be faavtni; co|iied the eriuie iiry^a
fri-ratot poritla, which proves not dispersing
tn public. 2(Jly, Tbedelivery ofihenrit quor-
Telttd to the ear! of Rothes of puipowtobe pre-
*nted ta Iiis majesty, pove^ im uays divulgiiii;
of a icandalouB libel : But the delii'rry itiereof.
qualified as said is, nnd followeij with nne reiil
oiler tbere^ if niiidc tii hli majesty, ruti ntvay its
htiasi Dllcred as a vcnndulous libel, and divulge
ing thereof; botli becauv <>f his mnjesty'a kh-
cred |>er«c>n, which is f-ir t run scene) en t above
bU presumed inju'ies, and also, ' quin culuinnia
' tttadvrrsus abseiitem-' Fardcr, since in law
and reason, intention of Ian and reason diffrr-
ences crimes by the purpose of the party, Jet
the purjKise of ilie pHiinei differcnfe now this
hii act, which does make the silme to he pre-
Kiitatinn of a snpphcution, and out dii*ulglng
of an infamous libil. Sdly, TIte delivery of
the writ by (he pannel to Mr. Dunniure proves
not divulging; anrt oppones thereto the pann^l'i
deposition of the ?th of June, «hich bears that
the pannel gnvc the wijt to Dunniure to look
upon to .liiinself alone, aitd to then it tu no
other, and tlnit he nevor knew that Dun in ore
hadc'ipied llie same, till Dunniure was called
in quciitiim tor it. Oppones litewhe Air. Dnu-
mure's depusition, *l)ich bears in tliij same
innnner, Oppthies also the law ■ qoiid in male-
' ficiis Tulantas spectatur, nan eiitus ;' anil
(hnttbepanne'rs purpose is declared by his de-
position fbresnid.
It ii auBwered by my Lard Jdmcat, TbM
the inierliniog is tint found rclevnnt per n, but
with the remanent HrcuiVi<-tnnces ; and sn ftu-
as inteilLiin^ is libeHed, which is iudelinitelT,
withnutre9MCtoriinie,.(<>)iet!ierbcfi>reorBrier
(beiring of it to Donmure) it is ttearly^prnveii
by the pannel's own deposition, and by ocular
mspection of the scMndnlous libel produced by
Ifae panDel, which is interlinsd with hii oan
haBirin two divers places. And for proving
' tlie panne) to be author, bdriser, &c. bis re-
ceiving it immedihtely from Ilaig, dpliveriiig it
to (be earl of Bothet, interlining 6( it juo. un-
fM ttmjttft, dttpvnijic of it la Duluute, and
that it
vhich ii
IS ultowid by thu
n uhni
le the
iViimcil, ij
paiintH «',is one. Where it is alledged that
tlie not ii]iprthtnJiug is not verided, or coii-
rc.ililiguf IlHiu,&:c.. because it is not proven
that the panricl had knowledge that it was tL
scandiilous lilicl; it is unswcrrd, 1'liat the p.iit-
nel knewllai^tu be uuibur, which is proveu by
his depositions : and the jukticc by interhquitor
bns found it t'> be a scniidulous liliel, and there
is no necessity to prove his knunledgr. And
ns to Viivuigin^ it is not fuimd it^levonl n<la, but
being conjMiied with uny part of the Diltay;
and It is proven in Irrauiiia us it U libelled by
the pan ni-l's depositions. Hildas to the pan-
nel's intpntioTi, it is not a part uf ihe diittiy, tlra
punnel being lerilied to have been Auihor or dc-
vi-er, not ap)irelrender of Ilaig, or cnncealer of
him, or clivnlgef o( the scandalous libel ; nhich
is cleurly priii-en by the writs produced. Aud-
iherefoic iilledj^es that the as»ize, nulu ithstnud'
in^ of th^'ir oljections pru^ncd, ought tu find
the dittay cleurly proven : oilicrwise, protetu
for wilful error and rcmrirf of law.
It is duplycd by Mr. John NUbet for the pan-.
nd, Whereas it is reptycd by my Lord Advucfit,
tlint tbi' receipt of ibe piece tioin ibe tiutbor
inimediatily ufier compiUugof it, joined with
inlerlineatiuii, and llie autlior'g lescitnony of the
paniiel's approving of it, verifies the pattncr*
concourse with the autbui- in framing the piece
fo'uiid Sfaudalous ; iva oppone the (lanuert ro
ilerut depositions, benriog that be had no ai>
cession in llie framing, vnd gave no previous
warrant to the frainer, and disclsiuiiug know-
ledge of tlie Ihuntng uf it, which mu^t elide all
the presumptions adduced by m^ Lord Advo*
cat ; seeing it n iuconrraverted m taw, that n
qualifTed confession cHunot be disjoined, as i*
clearly proven iu my dispute, chieity since tiM
pannel Ihb deponed «a~iiigetiuou*1y, without unj
oblijpatinn in law, iBdupon afstirMice firesaid.
Whereas it is replied by my Lord Advocat,
Tliat the pminel intrustint of bit man Mr. Rn-
bert Dalgleisli v itii the piece, liis intpMttng of
it to Duumure, (iiid to my lord of Rothes, veri-
fies divulgjing, opponcs our dispute, and the au-
thorities of the Uus cited bv us, rrquiriitg a pub-
lic cxposina, and a fraudulent intintion to dc-
fiihe. Anil we opsone, the condition nf tlia
psuniel'sdcliveryof It tnDuiimure, that it should
be illi loli; Dunmiirc's copyliij; of it witliout
the iiaunel's knonledgei tbeu of the panDcl'*
deliTery of it to Dunniure, to found his opininn
in juJfinenc; all clenrly verified by UuDmureV
Wlicm it is replied by my Lord Adv9CBt,Tbai
tfaig's evasion, the punnet's bnowlcd^ ih'at bft
was natbor of the piece now faiiod scandalous,
verifies the jioiut uf not apprchendiug the uu-
ibur; and thiu it is nut necessary In prove Uie.
pannersknciwIedEt'of the pirce: Ftisdnplyed,
ThatVrt oppsnethe unciiBtrnrertedpriictickor
711!]- STATE TRIAUi, ISChaujuL l6i7.-'Proee»dmg*iigaiMtBatlwide, Barton [7U
■tl ountrics vrhere appreheDdiag of putiea is,
ciiiaiiird, aad resKiing'ii proliibit; thKt ileclii-
fmtor slioiild precede, as !□ nuthon of herecicul
buots, forbidden to be received by ttie iaw ;
becaoM everr man Is not able to diswrti those
pitcel, nliich arc dcbateil and caiitrnvert«il
' ainougst ilie lenrnedeat. And we oppyns the
paanel't wwii depoaitions, bcnring that he knew
nut ntMredlj Haig to be author thereof, but
thnligbt oiilj he wtks nutbor ; nod theiefure not
nblij;ed to apprehend luiumarlf antf abrupily.
Ill reapecc hereof the uiiie can no ways (inil
the puiind guilty of the Diilay, tad alUdged
eiiote spedlied therein.
The Assize by plumlity of Totes, elecls and
i^u'isetJohneail ofTraqudrChance1ior,(Fore-
Whilks person! of dssIk being received,
inom, and admiited, afUr Recusation of the
said John lord Bal merino by dittnjoftlie crimes
furtsnids, mmtjoiied and seCtiown thereio, and
produciion, and reading judicially of the irrits,
and probation used and produced by his ma-
ieity's Adiocat for Terifying thereof^ they re-
tnored nil together, fiirth of court to ihe
council bouse of Edinburgh, where first, by plu-
rality of votct.They elected and chused the said
John e«'rl ofTniquair Chniicetior. Thereafter
received kod voted upon tbe hail points of the
said Dittaj; and being riply and nt leogtb ad-
vised thcrewitb, and with the writs and proba-
tion vied and produced by his majesty's Adro-
cat for instrucling of the same, and with the ob-
jections made by the pannel a^d his procura-
tors thdre ogainic, and answers made by his ma-
jesty's AdvocHt to the said objections, all read
in their presence aod audience, re-entered agnin
jn court; where iher by report and jurficiaide-
clsration of the *aid John enri of I'raquair,
Chancellor of (be SMi Assize, found, prs-
ifoanced, and dedartd tlic soid John lord of
Balnierinn to bo cleared nod acquit of the first
part of the said DitCay, wbereiii he is iudiclcd
as nutlior, deviser, coiisulter, adviser, nirt lud
5Kirtiif ibet^irniing and penning of the infamous
or scnndaloiis iibtl mentioned thercinlil : As
also of nut apprehending of Mr. Williaui llaig,
vrhon he ujbrins in his depnsitinn lu linic been
author of tbe snid libel : And likewise to be
cleared, assuilird, and acquit of ihe diiuiging
and disperung of the said scandalous IiIkI
amongst our sovereign lord's subjects, in manaer
specified in the said Dittay. And Inst^ found,
B'onouiiced, and declared tbe said John lord t^
nlmerino to be allcnariy filed and convict of
theliearing of tbe said infainuu^ libel, conceal-
ing and not revealing of the said Mr. William
Ilnig, affirmed bv hiin to be ihf author thereof.
The Justice iieneral upon consideritloa of
llic said John lord Balmermo his conviciion by
the fure- named persons of assize of the IbretaM
pnint of Dittay, anent the bearing of tbe inb-
mous libel [herein contained, concealing and
rfvealing of Mr. William Uaig, author and pen-
ner tliereof, found and declared, by adiice of
his lordship's assessors, That the said John lord
of Bahneritio bus ihcre-ihrougb. incurred tbe
pain of death contained in the nuts of parlia-
ment; suspending always llieoecutioniliereo^
until the time bis majesty's gracious will and
pleasure be shown and declared thereanent: to
whose sacred majesty ibe mujiner, time, aud
p[ace of the execution of the said sentence is
remitted by thejunticc; and il le said John lurd
of Balmerino ordained iu tlie niean time lo 1m
retHRied W ward within the castle of Edinbanih,
to remain therein while his luaijcsty's jileaiurt
be signified.*
Tlie King being informed hereof, was pleued
Co grant him a Pardcui.
* 3 Rush. Col. -281.
145. Proceedings in the Star-Chamber against Ur. John Bastwics,,
Mt. Henrt Burton, and William Phtnn,* esq. for several
Libels:-!- 13 Charles I. A. D. 1637- Written by their Friends.
An InlbniiBtioit- wBt exhibited iu<the Scnr-
Chanibcr by tbe Attomey-Oeneial, against
John Battwick doctor in physic, Henry Bunon
batchelor of di*iai(y, and Wdliam Frjon barris-
*lClar.Ili*Lp.73. liS. e Rushw. p.38D.
t Kennet, ttfter nentiouii^ ttie opinioii which
the judges bad given oq the leualitf of Ship
Money, proceeds: ** It wai a iesf itividinus opi-
nion which the Mm* Judges bad delirered in
the caae of- Burton and Bastwjebe, who bad
been so fierce in their LJbrb against tbe go-
vernment, that it iTBt consid«nd by tbe kiog^
rounsel how to draw ihetn into an am^mem
of Iligh-Treason. Fur which purpoae there
Vns a meeting of like Judges m swjenntVTnn,
. t>elbre whom the king's counsA laboured to
prure, [hjt divers pattag-Ji in lb* Books uf tbf
ter at law. Defendants, for writing and publitk-
ing aedlcious, scliiimatical and libellous Bouts
against the Hietardiy. They prepared their
Answers, but tlie counsel being backnurd liu
laid authors did amount to Uigli-Trtuson.
But when the t»uncil withdrew, the Judj^ iu
debate among ibemaelves, came fb tlieae reso-
lutions. 1. * That if thcra were any thing in
' the Books tint amounted to trensoUj tio Ift-
' diclment could be found good for ireaaon,
' unless it wai giounded upon the statula of
' 95 Ed. 3. either fur compassing tbe lints'*
' death, or imapnitia the snoie, or else Ibc levy-
< iog of vrnr. H. That if any man seditiouslr,
* mftliciuuslji nud of purpose to raise rcbFlii<'Bi
' andi
3 incite rebdliim, 'did take arms lo reduce
I lit goveraaiMit of die ttata, either
713} OTATE TRIALS, 13Chaiu.biI.
fear or offeudiiig the court, tiiej petitioned tlwy
migliL sigu tlieir Answers ihemselvn, wbich was
denied ; sad ihe sath of April the court ordered
them to put iii their Anairers by Monday aeveo-
night under iheir caunsers liauds, ur elae the
tnatten <if the lutbrmacion to be l^en procoH'
fetto, Mr. Prynn, May S, Bgaiii petitioned
them, that hanng bc^u fur abore a week'de-
barred access to Iiia couDseJ, and his teri'stit
ivho thouid solicit for him being detained cloie
priiKiner iu a [nesKiiger'i bandt, and it being
difficult to get (lit counsel to repair to him dur~
iDg tlie teroi; he having been a barrister at
law, prajied lie might (accoi'ding lo.fomier pre-
aedents in that court) have liberty to put in big
Answer by the day prefixed, uuder his own
band, and nut uud«[ his counsel'), who refused
it out of fear and cowardlcei for wbich he
alledged these Reasaut :
]• Close, Dr. Laytoo, and others, had been
allowed tbis, and tliere is but one precedent
against it; where, upnn a ipecial reason, and
In case of a woman, not of a man, much leu
•f a lawyer, it was denied. 8. Upon an art
■ tnut in this court, in many cases at the Coun-
wl-Table, iu pailiauent, and in the King'i-
Bendi upon Indictments and Infunualions
(especially in cases of felony or treason) tlie
Defeiidints make their defence without counsel.
3. Countel is allowed not of necesaity but &-
Tour, At a help to the Defendants; but when
they hnd tlienl no help, but that tbey advise
tbeui to tlieir prejudice, why ihaji they not an-
sner without ihcm t 4. Every Answer, in the
•ye of the law, is tlie Defendant's, not the
counsel'!. 5. Shall an innocent m.-io luRer
without conviction, through the want, feai,neg-
iect, Ignomuce, diversity of opinions, or trea-
chery ufcounsel? 6, Thelaw ofuature leacheth
every creature, man especiitly, to defend him-
self, nod in the present case the Deftodaut'i
Answer reitcth upon Books, matters ofdivii^itv,
and otlier points, wherein counsel have hitle
■kilk; how can they defend him in a cause tbey
uaderbtaud nut? T. At the general Day of
Judgveut, evfry man shall be allowed to make
Answer tor hiiiiiielf, much more should earthly
JuiUes allow the sai|>e, where other* will not
pr (Hire .not. 6. By the judicial law ainong
the Jews, and by lbs civil law among the Pagan
RoiQHiis, every one might answer for tliem-
p^Uet: Naboth, Susannah, Christ, and others,
tliough unjustly coademoed, yet were not con-
deniBed as guilty for nut ansiveriog by counsel.
9. ^t-Taul, ivhen lie was slandered and acuused
hj Animiils tlie high'priest, and Tertullus, and
' ecclesiastical or civil, and thereby lo compus
' the king's desiruci ion, this was treason. 3.
' That such Indictment was to be framed upon
■ the luid statute of 35 Ed. 3.' This Resolu-
tion being delivered by tlie hard Chief Justice
to the king and council, had (his r^lar effect,
tint the said otTenders were not indicted of
tii^Trsiisoii, but prosecuted in a softer mnn-
ner, though aAerword thought severs and ubi-
irary." .
•everal timef before Fetii, >FeituB, and klne
Agriupa (three heatheii magistrates) was su^
fered to speuk fur himself witbuiif any counsel
assigned. — The Defendant therefore hopes, he
being accused in this court, by the English pre-
lates and high priests instigatiooi, et sedition
and other ^ucb lik» crimes; as St. Paul was,
shall enjoy the sinie privilege and freedom be-
fore Cliristian Judt;es, m St. Paul had amonj
Pagans; which his adversatiea will not b«
against, unless they will he deemed more uu-
reaaooable tlian Ananias himself i, e^iecially,
the Defendant having been a barrister and
counsellor at law fonnerly, and ndmiiled iu this
court to put in Answers under his hand in other
Upon reading this ond a Petition from Dr.
Bastwick to tlie same purpose, olledgiog his
counsel refused to' sign bis Answer, the coun
adhered to their former order, that they should
by Mondayput in their Answers under counselt
bands, or else to be taken pro coi^euo. Prynn
and Bastwick lhereu]>on left thair Answer*
under their own hands at the office, and ten-
dered another draught thereof to the court.
Before tbis petition of Mr, Prynn, he and
the two other Defendants pat in a Cross-Bill
under all their hands, agaiast the archbishop of
Canterbury and othoi of tba prelatas, wbereiD
they ctorged them. with usurping upon his ma-
jesty's prerogative royal, with Innovations,
licenung popish and Arminian Books, &c. and
let forth Ibe substance of their Answers, The
Kit being ingnissed and dgned by ihea, Mr.
Prynn tendered it to my Lmd-Keeper, praying
it miaht be accepted witboat counsel'a bunds,
wbo durst not sign ic : The Lord-Ke«per upon
reading the Crosa-Bill refused to admit it, but
deliveNd it to tho king's Attorney: The Arch-
bishop Denied thereat, demand^ tlie Opinion
of the Judjtes, wbttber tbey could not be
punished aijibdlen; who all but one answer-
ed amatively : for it was tendered in a legal
way, and tbe kingfs courts are open to all men.
The Archbishop then applyed to the court vf
Sur^hamber, and infonaed tbctA, That k '
lome Books and pamphlets lately puMiihed, his
grace and tha other bishops are said to liave
usurped upon the king's prerogative, and pro-
ceeded in their courts contrary to law. Hi
prayed the court would require the Judges to
give their Opinions therein ; and ihs court ac-
cordingly desired their Opinions in the points
1. Whether process may not Lsiue out of the
ecclesiastical courts in the name* of the bisltopsf
The Judges answered afErmatively.
It. Whether a Patent underChe Great Seal be
necessary for keeping Ecclesin^^tical Courts,
and for cilatioiis, suspensions, eicommunicM-
liuns and other ceniurcsf WheUicr cilntions
must be in tlie king's nnnle, and unrfor hit seal
of amis P The like for inslilBtiflns, inductions,
and corrections of eccle^astical offences P They
answered, tliat a Patent under the. Great^Seal
is not necessary in any of these case*; norbit
necessary that summons,, dtttion^ or othe»
Cookie
?I5] STATE TRIALS, ISCharlesI. 1«:j7.— ftwwiw*»B;
a Baaimick, Burion [716
ur corrcciiuns of ecckJasiicxI otrences slioald
beia the king's name, or wirh liis iiile, or under
liisMialjOr tlmt llJinraenlsofoHicchuvein ihem
the king!* ann«, .the slulutc of 1 £diT. 6. cb. 3.
being not now ifi furre.
, 3. Whnber BiahofM, Arch'dcaeoni.&c. mnj
teep tray Viiitatinn, nithout cnininiiisiiin under
the Grtttt Seal ? Thej ansirered ibejf inaj.
Wliich opinion of ibe Judgn being certilied
iolD ibe Star^hnmber under the liands of 1 1
•ftho 112, Hiec-iurC, Mlhepmjer ofttie Altor-
ney-Oeneral, ordered the aiid Oriilicnie lo ^e
recorded there, and in (he other courts at West-
minster, ihe high commiitioo and utherecdeiia^
ticalcouni; and aftemMils the original ccrti-
AcBte to be dElivered to the archbishop of Cnn-
terbury, to be preserved amoug the records of
big court.
Dr. BuCnick having left his Ansn-er at the
sftice aa aforesaid, the court taking notice that
it was five sl^os and a hall of parchment rb»e
wfiUeu, and ^01 yiaa alledged) contained much
■candalouB defamatorjr lantier, nrdcrrd, Th^t
all the mitttn of the InfomiatiiHi, wherewith
he was charged, should be taken pro aiuftno.
Dr. Butwick notirithscsnding pi'litioned ngaiu,
that his Answer might be accepted under his
ewnliand, but to no purpose : And Ur. Pryiin
in aiecoad Petition dniriiig of the court uot to
reiuire imposnbilities of bin, his counsel's
.hands not heing at his ciimmand (for thus the
lOoM innocent man aiaji be betrajed anit coo-
deibiied, through the unfaithfulness, wilfduess,
fear, corrupi ion, or default of countel), he
prared them to deal with him as thej would be
deJt »ith themielve*, were ihey, which Gud
Ibrbiil, in his condition, and as ther would hv^
Christ proceed with them nt the l)av of Judg-
uieot. He craved nnlTsomuchhvour nndjus-
Cee ■« Christ found befure Pilute, and Paul he-
%m Felix, Fettus, and Agrippa, or as «\etj
tiwilor or felon eojojis in tlie court of iiiatice, to
•Bsner fur liimsoir, when liia counsel will not,
OMiDot; or Affe not ; especially in ()iis weighty
' oailsa higbly concfming bis nMJeat)''s Itiiji)
Prerogative, the tnfttj of Religinn, and tlie good
of ihtf whole t«Hkn. He prated t lie Cross- Bill
Mid Ansifcn of him and the other Defi^ndaut*
a^iHC the prelates liLte dangemui encroach-
mvit*, InrMvadons, practice! and oppressions,
Bay be et:ccpted under the defendnnta own
' ifie petitioner, upon gran ling his
Holt, one of Mr. Prjrnn'i counsel, to repair to
bimrin^ttie-T'uirer, and take inttructions for his
Answer; and the lieutennniof iheTuwer \vbs
H>M Ibr Mid checked bj the Ionia fur suSeiii^
Mr. Pijiin to dictate such d Petition ; and one
Ganleirer oho writ it frool hif mouth bj' tlie
liceoae, w«a the same evening, b^
n the Archbishop and others, ap-
d hj a partoiyant, detained about 14
— t n-w«Md till ha bad giv-wi houd
Mr. Ptynti, upon Mr. Iloti's repairing to
him, gate liiin Ills fee, and Ins.rucii'ius fur
drowing^ his Auiwer; and tlie same being
agiccd hn and neitlrd lij Mr. Holt, and Toie-
lin« his other couuiet, Mr. Holt's clerk iiignnved
i< ; tint Hull then refused to si-n it, saying he had
ei:ures!< ord» to tl« coutrarv, nnd n-uuld not d>i
ir Ut VX)L ami in the mean time l^imlins went
into ths country. Mr. Prynn thui delnded,
requested the Lord Kee[)er, the Cliief Judge of
that court, to commnnd Mr. Unit, who liad
drawn it, to si:;" it ; but the Loid Keeper an-
sivered, lie had no power to commnnd cooubel
tiJ!ti<;nao Answer. And thectiurt, Mny 19,
positively crdeied that tor thnir cou'esapt in nut
putting lit tlieir Anfwert, the matters agumtt
Bastuick and Prynii shouid be taken pro ccn-
fato, and the Cnttsc nunintt them should be
beard the fiiitt sitting; ot the ant Kexm. As fiir
Mr. Burton's Answer, it wns (igned by Mr.
Hiilt ; bat after It had been near three weeks io
court, upon Mr. Attorney's sogsraiioti that it
was scnodnlooj, the coort referred it to tbe two
Chi>;f Jiistices Bratnstoa and Finch. Tbe lat-
ter reviled HoU exceedingly, and told him ha
deserted to have hii goun pulk-d orer bis eat*
fiir drawing it : Ilott replyed, it wcs only n
Ci'ofession or eiplun^inn of the charge in the
Bill, and a recltnl of acts of parliament, nnil
how thnt could be 'taindnlous or impertinent
he could not cnnc<.'ive. But the tun Jusiicr*
ctnilied it to be alt scandnlouj and im)ierti-
n en c, except the usual words iu the heginninc,
' The s-jid Defendant by Prntentaiion not coii-
' fessinp,' &c. and the words in the latter ewJ,
coLitnluing hi4 plen of Nor Guilty, the coinmnn
averment that lie wns ready to prove the mat-
ters of Answei', his Prajfr of a lavourahle in-
terpretation, nnd to he dismissed. So all it- e
body of his Answer, containing about 40 sheet*
of paper, was expunged, and noitiiu^ bit tli«
heai] and fet'l remained: And by hia Ptea ol'
Not Guilty to all, 111' was made to deny wbai
]« h:id ctmtl'ssed, and justified in his Ansner :
And thn Examiner coming to h!m aflerivard*
to the Fleet, with luleiri'gaturics grounded on
his .Answer, he refused to be ctamined uiite-d
his Answer might be ndiniltitd as it was put in,
or he permitted tn put in a new one. The
Couit ordered tlic Esiiminer to repair to bim *
second lime with the Inirrogaioriesibut beper<
sisiin!;iii hisrefusal to be examined, for t>;at ihe
Answer niw in court was none of ht^'th? court
ordired the inniter of the liifiimiation and In-
fiito; and on the 13th of June the Court or-
dered theenuseaguinstallttie three Defciidunii
10 be hcani the ncut dn.v, nnd that In ibe mean
time tlie? should have liberty with their keepert
til attend their munsel. Tliis was looked upon
as a thirt warninv by some, wh^ aflinned, thnt
liytheconrse of the court, n(ii&p*na adanriun-
tluM Jttdiciam should hnve been sened npon
thein'lS davs at least before ihe day ofbeBiin^
which was' not done. However Mr. Prvnn
mnde lae of bis liberty, and repaitvd to Air.
Touilius (fitvi iienly ratamad) with hit AskHCt
J17]
STATE TllIALS, I3Ciia»ije*1. 1637.— and Piynn, for sevcrai LOieU-
be ndversuiius)
t?l!S
ncwl^ilmnn upand iiigrosudas afornai(l,Kli6
ligiieil ic, liuc Mr. Uultsnid iie durst uot ; tUen
Ur. fry ml tendered it tliusii^i^edtuiMr.Ouftde
U clieoltice, but he utterlj refused to cake il.
Mr. Huilun in bit AuBwer, ael faith the aub-
tunceol'Iiu^Sci'jiKiH wbicb bepreiichcd llieStli
ufNovimlier iu liii puruh cliurch in Fridiiy-
ilreci, tuucbiiig the iiiuoiaiiuu) l)ruuglit iota
\be cliui'cli.
Dr. liaitaick in liit AniitcT ternied tlic Pre-
Intel luvadennf ilio Ling's I' tLrogative, Con-
temners t>r the Scripturea, ndvanecrs of Fopcry,
^[lerslitioo, idolntry, prolimencfii, iippreSiiou
uT ihe king's subjecls, in llic iiupiuu!> pei/i>rai-
»nee mliereof lliy thc»cd ntittitr «it iwr ho-
iicaiy: Knereits ot'Ouil nnij tlie Liiig, aud scr-
raiiti n{ the-Devil. .
Mr. FryuMs Answer nai much against the
Hierarchy, l.ut in mure tuoderaie and cau-
tiuus eipressiiins.
Juiiei4- 'lli<;Lord»hei|igtetin ilicirplnces
in the Stnr-Clianiber, and ilie (liree Del'i-ud:inie
hruught IU the bar, to receive their Sentcuces,
the Li>rd Chief Justice I'inch liiokiiig eurnestly
pli Mr. Pr^un, said, 1 luid thought Mr. Pryiiii
iiad no tats, but methinha lie tiatli ears ; vrliiuh
caused nuuijr of the lords to tike the ktiicicr
view of him, and tiir thvir better satiifttction,
' the u«her uf the court nai coiDinanded tii turn
u^ his bnir, and shew his ears : upna the sight
uh^-rt^r the lords were displeased (hey had
liecn foimcrlj no more cut olF, and uusc out
iiiiue disgr»ci'ful words ofhim. 1'u which Air.
Prj on repljtd, ' My lords, tliere isneter a one
of your hunoufs, but would he sorry to hare
Z. kteper. Iu govd laith ^ is »oiuc«bat
KilU
'. i'r^nit. I hope your hoaourt
be amended, pv.iy God give you eaia to he:
J,. Ktepir. 'i%a Lusiue&s of the dny is to
proceed on the Pci^jntn at ilie bar.
Mr. fryt" tii^H Iiuuibly dc^ed of the couit
to give I'lio have to niake a motion or two,
wliicL beiug t;riiiiied, lie moved, First, 'I'hat
llteir h'.nuur* would he plented to gcce^^ot' a
Ci'w«-Bill atiainat 1)19 I'^lntes, ti^ubd witji
tlicir own hands, being thiu which stuoda witti
the juuice '01' tV courf, »hicb he bumUy
craves: and so tendered it.
L. Krepfr. As for yout Cros»-PilI, it is not
(lie business of the day i herealier if tl(« ci>urt
^all see just cause, and tliat it favojira iwt.of
l^bvUiub we may accept of it: (vr my part I
twve not aecA it,|iut haveheurdsoiii.ewliaiofit.
iUr. i'ryns- 1 hope your liootifira will li/it
petum it, being ii is on his ouycsty's beliujf.
We are his nta^^et^'s suhjectc, qud tlieruJois
sp«niire Lt^ jlt.stice of ibe pouit.
L. Keeper. But this is not the business of
4v dny.
Mt. Pn/im. Why tlwn, my iorcjs, I haie a
■ecii'.d'niotiun, witicb 1 liiiipUy pr^y your liu-
qours tve^HQCi obicb is, tliaf vour lord^iip'
nj^ ba piotfed to dismis* tbp Pc'Jatfls licre
swnt siu>ii(^ fruin baring aoy voi.ce in ihie ceo-
being no way agreenble with
equity or reason, that ibey wbu ure our advcr-
ionsa, should he our jud^M. Tlieiefure we
limubly cruvu tlicj tuay'be expunged out uf
the criurt.
£. Jietper. Iu uood faith, it is b sweet oio-
lion, is.it nut^ Herein you are become libel'
luus. And if yuu should thus libel all the
turds aod reverend Judges, as you do the most
reverend Prelaci-s, by this your piea, you would
hare none to pnss Seiueitce upon you for your
libelling, because they are parties.
Mr. Prynn. Undei correction, my lord,
this doth BOt hold, the case is not aUke, for
hcrcareordy one or two menibersof the court,
whu nre said to be libelled against, and your
loiiUhip yourself in your case against Norton
absented yourself from the hearing, because a
party, which is usually done by tlie lords in tike
cases. — But this prevailed nothing.
Mr. Pri/av. Then I hnve a third motion,
which is, that ynur lordships will receive my
Answer to [he Inlbmiation signed witli-nne
cuuusel's hand, nhich as soon ns I could get
signed, I tendered at the odicr, but it was re-
L. Keeper. Your AnsnM comes now too -
late, proceed to the basiiicss of the day. Read
the lufonnaiion, wliich was rend being very
large, and having chese live Books thfireto an-
nexed. Dr. UostKiek's Latin 'Apology/ hi*
Ijtaay, Mr. Burton's book etit:tl^d, ' An Apo-
* logy for on Appeal lu liie kinx's most.eaceli
* lent inajcsiy, wiib two Sermons ti>r God atid
' the King,' preached on the £th of Noyenihcr
Jast : The News froiti Ipswich, and the Dtvine
Tragedy, recording God's ti-erful Ju^meut*
against Sab bath- Breakers. — 'I'll* king's e^vnwtl
being liv.e, took eacli of tliem a seTcriil Bou^.
Mr. Alim-Tit!/ began with Dr. QaKwick's La-
Uii Apology ; np^t unto the Auorjiey, vrjewDt
Whitfield lulls upon Mr. Burton's boot, s^ii;^
In good faitli, mv lords, tlwre is never a pag^e tn
this Book, but aeservea a hes.vj^r and dittpat
Ceusure than this court can put upon him.
Neit followed the ^rcUuAiip, who iji lika
piaoner d^iMiued on The News from I|Mwicb.
charjiiug it to be full af periucrov* lyes; ood
eipeciall^v viadicniing th? hooovr of iVattliev
Wre'i, Usliop of Norwicb, U being a leaQied,
pious, and reverend Ikther of Ilic Church.
Neil folloived the king's Solieilor, (Mr. XJb-
tleton) who descanted upon the Divine 1'ttf
^edy ; to which part of it cpncerninf; Gnd's
juilgnienl* on Sahbaih-Brea^eis,. he said, I'hw
'linef DBt j(i iJie Seat of Gud, nho Jtidg«d I bate '
accyleni^ wfaicji fell out tipoD peraous HiddMiljr .
struck, to be the judginent* of God for 3aJ»-
baib-Jureaking. He enlarged bims^lf upon tint
lid) waf most shnmefully abtaed )^r a ilftiMler
laid Upon him, w if Gud * JudgHunt.fell upon
liin), for io etteriy proKci^nx Mr. Pr<rnn for
his 'Ijlittrio-waMix,'^ iibicbjudgaiaQtitiu tfai*;.
Goo.;lc
tl9] STATE TRIALS, ISCuablesI. l637.~J>roceedinsiag'anU Btatteide.BaMcitl'l'X
yoar lont^hipt cinnot dcnj irith the jmtitc of
thai lie bushing at Mr. Prjon, while he wa*
suSt'ring upon tne |^>il1<iry, was struck with in
issue of blood in In-i privy-pnrt*, ufaich could
never be slapl till (he day of bit death, nhicfa
fulloived soon afiur : but tli« initb of lhi«, i
lord>,-yuu shall find to lie a* probable at i
rest, for we have here cliree or four gaotleni
nf good credit ■nil rnitk, to teitify upon oi
thnt he had tliat ii>ue lung befure. And tbe
Solicitor called out for room to be made for
(he gentlemen to coine in, but none such
Lasrly folloired Mr. HrHierl, who descanting
upon Dr. Bastwick's Litany, concluded jointly
wiih the rest, that it deserved ■ heavy cen
£. Keeptr, You lienr, geatlcDieu, nhere-
with you are charged, and now lest you should
»iy you cannot have liberty to speak fur your-
Mlve4, the court gives ynu li'aie to speal: wliat
jou can, with tlHsc cunditJiiiM : 1, That jou
apeak wiiliin the boundn «f niodetty. S. That
your Speeches be not libellous.
Tiiey all three aniwcred, they hoped S"
order tlieir speech, as t<t be free from any
modest or libellous spenkii^.
L. Kerprr. Then speak in God'« name,
shew caute why .the court should not proceed
in censure (as taking the cause pro confetto.)
■ Mr. Pri/mi. I expected, some particulBi
Charge to be proved agaiiiM me : Dr. Bast.
wirk lUld Mr. Burton ari^ chari^ wiih parti-
cular tiooks to ihe InfonnHiion aaneiied, but
noil t of the Books ai« luid lo me; my sole
oBencr, for i>hich the Iiilbrmntion must be
taken pre conjeuo, is my not puninic in my
Ansirer under counsel's hand by a day pie~
fixeil; whereas I entered my appearance, and
took out » copy of the Iuf»rmatiou, which
being taken our, 1 endeavoured to draw up my
Answer; but lieiiij; shut up clnae prisoner, T
was deterted of all means by which I sliould
have done it ; for I was no sooner served with
the Subpoena, but I was shortly after shut up
du.<G piiioner, prohibited of pen, ink, and
p.ipcr, and so disabled to draw up my Ansver,
or Instructions for couniel; my servnnl w^O
ibuuld solicit for me was iu prison, without
being admitted to bail, my friends denyed ac-
cekS, and my chamber twice searched ; and
after I bad drawn soma Instructions, and part
nf my Answer (having thea obtained liberty of
pen and ink) tbty were taken away by Mr.
Nicolas, Clerk of the Council ; your lordships
relutri
o let IT
own hand, though a counsellor at law, contrary
to former precedents ; your lordships did at
laii a3<iffi me counsel, but they neglected tq
come to me, and when by order of the conrt
Mr. Hult came lo me in the Tower, I gave him
my Fee and Inst ructions, and allerwanis Mr.
M'llt and ray other counsel agreed upon my
Answer, caused it to be ingroised, and pro-
mised-to ii<>n it, but Mr. Holt refused to do it
tfaea ; aftcrwardu Mr. Tunilins signed it, and it
was oarrytd to the office, but they refused it.
Here it IS, I tender it upoD my oath, wBich
theci
i. Keeper. We cm give yoo a preceden',
that tills court hnib proceeded ana taken a
cause pro conj'aio, for not pntbog in an Answef
ill SIX days'; yiiu have had a great deal nf &-
vour shewed you, in aflbrding you longer line,
and tberefott^ the court is free from all calumny
OT aspersion for rejecting your Answtr, not
signed with counsel's bnuih.
Mr. Pryun. But one word or two, b)
lords, I desiiCyonr honoanto bear «ner I pat
' :w, If an award be landc that A
shall K
hath no power to compel B and C Co enter
into such a bond : my cajc ii the Mme. Tlie
court ordered me to put in my Answer nndtt
connsel'i bands ; I enoeavonred it, they relbsed
to sign it, 1 had no power to compel them, ind
desired the court to onler them to sign it; bst
■he court replied they had no power to fem
them; how then could I, a duse priionef,
compel them, if the court could not P Byikii
menus the most innocent person in tbe ^oM
may be madecuihy of nhat crimes yoo please.
I appeal to Mr. Holt, if I bnve not ased all aiy
emleavoun to get him to sign my Answer.
Mr, tfti/t. There was so long time ipml
ere I could do any tbino after I was assigned
his counsel, ihat it wis impossible his Ansncr
conld be drawn up in so short a time as was al-
lotted ; lor after loni; expectatiun, sering lit
came not |4 me, 1 went to him, where I IbiUHJ
him shut np close prisoner,. so that 1 could not
have access to him ; whertopoo I mnlioneti lo
the Lieutenant of the Tower to have free iibcr-
TV of speech with him concerning his Aoswrr,
which b»ng granted rae, 1 found him very wil-
ling and desirous to haieit drawn up; where-
upon I did move in this court for pen and pa-
per, which was granted, the which he no sMuet
had gotten but be set lunaelf to clraw up In-
structions, and in a sboct time sent me 40
sheets, nnd soon af^ I received 40 more ; bat
I found tb« Answer to long, and of such * na-
ture, that I dunt aot set my haiid to it, forCnr
of gi^ng your honours distaate.
Mr, Prynn. My lords, I did nqtlmi b«t
according to the directions of my couniel, oaly
I spake my own words : my answerwasdra'n
np by bis consent, it was his own act, knd be
did apattrve of it ; and if be will he an bast a
cowaid, to do that in prifalQ wfaieb bedues
not acknowledge in puUic, I will wH have wk
sin He on nty consciciioe, let it rest with hi».
Here if my Anwnr, which though it be not
sigoed with tbair bands, yet here I tenifef it
upon my oath, which yon camtot in jutfiix
L. Keeper. Your case is good law, hot iU
applied ; the court 4e«ret no ladi lou ^'^
swer, but whether ynu are fSnillyor MCGoil?-
Mr. Pryan. Br tbe statotea of P^ o^
Mar. and of EUi. in the case of Ubdiiag Ae
king or queen, the party^ oonfeMioa, at t**
' t to Sue nt TtipmA, dat •*
721] STATE TRIALS, IS Chables I. 1837.— ^»i J-ijmi.^^wro/IiWi. [73*
The GoTernor bf Ibro wham St. I'lut was car-
ried, wlio was a very Ilcattjen, nould firK bear
liit cause before he nautd puid any centure
upon him ; and doth it beteem so noble mid
ID, and here is neither ; nor is there in
nil titc Infiimiiktion nne clause that doCh parti'
colnrly fellon me, but unlf in general. I'here
it no Book Inid U> mjr chnrgc, and ahnll I be
condemned for ■ particular .ict, wheii no aecu-
Hiion of any partieular act can be bruught
aeainst me ? This Were mnst unjust and wick-
ed. Here I,tender my Ansner to tbe Infonn-
nlion upon nty oaih ; nij lord, you do iinpoge
impossibilities upon me, I could do no more
than t did.
X. Ketper. Well, hold yottf peace, yoar
Answer comes too late. Wbit any you, Dr.
Bostwick I
Dr. Bailmck. My bononraUc lords, me-
thinki you look like an Assembly of Giids, and
sit in tlie place of God : Ye are called the
Sons of God ; uid since 1 have compared, you
■» gods, give me leave a little to parallel the
one with tlie other, to tee whether the cnmpa-
i-ison between God end you doih liold in .this
noble and righteous cause. This was the car-
riage of Almglity God in tlie cause of Sodom,
before be would pionoaiice Sentence, or ere-
cuie Jud)(ment, ne would lirstcome domi, and
see whether the crime was altogetlicr accord-
in(> to the cry that was come up. And with
whom doth ilie Lord conwlt, when be came
down f With his lerrant Abraham, and he
gives the reason; 'for I know,' fsaith he)
'that Abraham will ctMnmand bis children and
'•hooshold after him, that they ttiall keep the
' way of the Lord to do justice and judgment.'
My good lords, thus Hands the case between
your honours and us this.day : there is a ;rent
xry come up into your eats acatast lu from the
king's Attorney ; whr now be you pleased to
descend and see if the crime be accordiog to
Ike cry, and consult (wilh God) (not the Pre-
laies, oeing in the advenary part ; who, ai it
is apparetit to atl the world, do proudly set
ihcnKelTes against Ihc ways of God, and fiviq
whom none can expect justice or judgment)
bat with righteous men, that will be impartial
OB either side, before you proceed to censure,
which censure you cannot pn«t on ua without
BrenC iojubtioe before you hear our Antwers
read. Here is my Atiswer, whidi I here ten-
der apon my oath : My good lords, a,Ue us
leave to sjieak ia our own defence. We are
not conscious to ouraelTes, of any thing we
bare done that deserves a Censure this day in
4tis hoDoankUe court, bat that we have ever
laboured to maiatiiiii ibe hononr, dignity, and
«rert^atJve royal of our sovereign lunl tbe
■ing ; let my lord the king live (or ever. Had
I a litousandlivet, I shuuld think them all too
little to spend for the mainteBance of his ma-
jesty's r«f«l prerogative. My good lonts, onn
yoa proceed to censare before you know my
cause I I dare undertake, that scarce nny one
of yoBr lordships have read ny Books; and
on you then censore me for what you know
not, and lietbre I have mode my Defence I O
ny noble brdi I it [his righteons Judgment I
Tilts were against the law of God and man, to
soademn a nan belure yoa kuetv kit erime ;
roL 111,
Chn«
mblv
e belor
be peiuBGd, ami my enure known^
Men, brethren, and fathers, into what an nffi
are we fiillcn 1 1 desire your honours to lay
aside your Censure fur this day, to eii<]uirc into
my cause, and hearvy Answer read ; which if
you refuse to do, I here profess, I will clothe it
In Roioan buff, and send It abroad unto the
view of all the world, to clear mine innnCency^
and shew your great injustice in this cuuse.
L. Keeper. But this is nut tlie business of
tbeday; why brought you not in your Aiu^er
in Hue time }
Dr. Baittf. My lord, a li>n; lime since I
tendered it to your hoimur, 1 fiiilcd not in any
one particular : and if my counsel be to l>nfie
und cowardly, tinit they dnfe not ngn'it f\ir
fear of tlie Prelnies, as I can make it apiicar,
therefore have I no Answer? Wy lord, here is
my Answer, which tlwugh my counsel out of a
base spirit dare not set their hands unto, y<.t I
tender it upon my oath.
L. Keeptr. But, Mr. Doctor, you should
have been briefj you tendered in too Urge an
Answer, wliich, us I heard, is as libellous tit
your Books.
Dr. Boffni. No, my lord, it is not libellous
thou^ '"S"! ^ ^^'" **'>"^ '° >><i**«r for ina
but rajselt, DBd baiag left to myjell, I rau9t
plead mj conscience in anawerto every circuui-
itanceoflbeiothunation.
L. K«eper, What say you, Hr, Doctor, are
yoa Guilty, or not Guilty I aiMwer yea, or no :
you needed not to liave troubled yourself so
much about so large Rn Answer.
Dr. Baitn. I know none of your honour*
have read my Book ; and can you with the jus-
tice of the court, condemn me before you kiiour
what is written in my Bonks?
X^ Ktepir. What sny you to diat was rend
to tou even now t
Dr. Battti. My lord, be that read it did so
murder the leme of it, that had I not known
what I had written,! could not tell what to have
made of It.
L. Keeper. What say you to the other Sen-
tence read to you ?
Dr. Bulai, That was none of mine, I will
not Githerthat which was none of my onn.
L. DorKt. Did not you send that Book, at
now it'is, to a nobleman's faoue, together with
a letter directed to him ? ■
Dr. Sattm. Yea, my lord, I did so, but withal
riu may see in mv Epistle set before the Book,
did at fint disclaim what wa:i not mine. I
sant my Book over by a Dutch merchnnt, who
it was that wrote the Addition I do not know,
but my Epistle set to my Book made munlfosc
what was mine, and what was not ; and i can-
not justly sudier f'lr what was none of mine,
£, ArunJel, My lord, you hear hy his own
Speech the cause is taken pro eonj'etio.
L, Kreptr, Yea, jou say tnie, my lonL
723] STATE TRIALS, i3ChableiL lasi.—Practedittgii^aintiBcttwii.Bmml'I'U
Or. Stutai. Wy noble lord of AninHel, I
know you are a noble prince in iNrael, and a
great peer of this reulm ; theie are wmie bij-
nuurablc lurd$ in ibis courts that bave been
iiirceil out as combalnnls in a Eiiiglc duel ; it it
between tlie Prdatei aud us, at chii tinie. as
between two that have appointed ihe iiifld.
The one being a coward gups to tl.e magisw ate,
and bj virtue of his authority disarms tbe other
of bis iteapona, and ^ires bim a bullnisb, and
then clialleoges him-io figlit. If lbi« be not
ban dawardice, 1 know nut what belongs to a
soldier. Tbis is the case between the Prelates
and us, tbey take away nur weapons (our An-
swers) by virtue of your audiorily, by which
we should defend ourselrei, and yet tbey bid
us fight. .My lord, doth not this lavour of a
base cowardly (pirii ( 1 know, my lord, tliere is
a decree gOTie forth (for m^ Sentence nns parsed
long since) to cut otf uur ears.
L. Keeper. Who shall know oor Censure,
before the court pass it I Do jou prophesy of
yourselves f
Dr. Boftm. My lord, I am able lo proTe it,
and that from the raouih of tlie Prelates own
Mrvants, [hat in August last it was decreed,
that Dr. Baitwick should lose bis ears. U my
noblelords! is this righteous judgment^ I may
say, as tbe Apostle once said. What, whip a Re-
man ! I have been a soldier able to lead an
artny into the field, lo fight valiantly for the ho-
nour of iheir prince : Now I am a physician,
able to cure- mihles, kings, princes, and empe-
rors; and to curtaJizB a Homan's ears like a
cur, O my honourable lords ! is it not too base
an act tor so nobis an assembly, and for «o
righteous and lionourable a cause i The cause,
my lord), is great, it concerns the gloiy of God,
tbe honour of our kiag, wboie prerogatiie we
laJiour to maintain and to set up in a h^b
nannet, in which your honours liberties are
engaged: And dotli not such a cause deservi
your lordships consideration, before you pro-
ceed to censure? Your booours ma; be
pleased to consider, that in the last cause
Aeord and censured in this court, beiwet
Jumes Baggand the lord Mobun, wherein your
lordships look a great deal of pains, wicli a
great deal of patience, to liear the Bills on bolb
aides, with all tiie Answers and Depositions
largely laid open before you ; which cause when
you bad fully heard, some of jnur honours now
fitting in court, said, jou could not in consci-
ence proceed to censure, till you had taken
some time lo recollect yourselves. If in a cause
of that nature, yo4 could spend so much time,
and afterwards recollect yourselves before you
would puss censure; how much more sliould it
move your honours lo take some lime in a cause
wherem ihe glory of God, the pierosativeuf bis
mijesty, your honours dignity, and tlie Subjects
Liberty is sit largely ingaged ? My good lords,
it may full out to Ue any of your lordships casei>
[o stand as deliuquents at this bar, as we now
do: Ilia not unknown lo your lioouura, the next
cause tliat is to succeed ours, is touching a per-
son tluu sometimes bath been in greatest power
in this court: And if the mutations and revolu-
liuns of persons and times be such, then I do
most humbly beseech your honours lo look oa
us, as it may befnt yourselves. But if all this
will not prevail with jour honours to peruse my
Books, and hear my Answer read, which here I
tender upon the word and oatli of a soldier, a
gentleman, a scholar, and a physician, I will
clothe ibem (as I said before) in Roman buff,
and disperse them througltout the Christian
world, that future generations may se^ the is-
nocciicy of tliis cause, und your honuurs unjust
proceedings in it; oil which 1 will do, though it
L. Keeper. Mr.Doctor, I thougbtyouwoulJ
be luigrv.
Dr. Satta. No, my lord, you are miltaken,
am nut angry or passionate; all that I du
press, is, that you would be pleased lo peruse
L. Keeper. Well, hold jour peace. Mr.
irlon, what say jou?
Mr, Burton. My good lords, your honours
(it should seetu)do deiermhie Ui censure us, and
take our cause pro coajesto, allhougb nc have
laboured to give your lujnoui-s sausfactioa in all
tDiDcs. My lords, what you have In say against
my Book, I confess I did write it, yet did I not
any thing out of intent of Commotion, orSdi-
tian: I delivered nathiog but what my teil led
me to, being chosen to suit with thedaj,nau>df
the 9thof November; the words were tbtse,tiic.
L. Keeptr. Mr, Kurton, I pray stand not
naming texts of Scripture now; wedoootseod
for you to preach, but to auswer to those things
that are objected against you.
Mr. Burton. My lord, I have drawn up my
Answer to my great pains nnd chaises, ■hich
Answer was signed with my counsel's hsods,
and received into the court, according to the
rule and order thereof. And I did not think to
have been called this day lo aCensure, but have
bad B legal' proceeding by way of Bill and Ao-
L. Keeptr. Your Answer was impetiinrnt.
Mr, Burton, My Answer (after it was en-
tered into (he court) was referred to the Judges,
but by what means I do nol know. Whetbtr
it be impertinent, and what cause your lordship
had toCHSt it out, I know not; bat after it au
approved of, and received, it was castoulasan
iu I pertinent Answer.
X. Fmch. The Judges did you a good wrn
to make it impertinent, for il was as libelloiu
as your Book, so that your Answer deservtd s
L. Ke*fer. ' What say you, Mr. Burton, are
you Guilty or uotf
Mr. Burton. My loni, I desire you aol only
to peruse my Book here and there, but every .
passage of it,
/,. Xre;irr. Mr, Burton, time is short, are
you Guittv or not Guilty ! What say jou »
tlint which" was read? Doth it become a iw-
uister to deliver himtelf in such a raihng awl
sc'niidulous way^ ,
Mr. Burton. In my judpnentf m •■ ^
iogle
735] STATE TRIAI^, J 3 Charles t. 1637.— muf Prym.for feoeral LOxls. [736
can prove it, it vas neither railing nor Kinda-
loDi; I conceive thnt a minister liatli a Jarger
libertj than always [a ga in a miid straiD : I
being tlie pastor of mj people, whom I liad in
cliar^, and wns Id iostrucl, I mppiised it wu$
m; .dutj to infurra them of these Innovations
that are crept iuto ths Church, q> likewise a(
the danger and ill ci)nsH|uence of them: as'lbr
my Answer, ye blotted out what ye would, and
then the rest which made be>kt for your own
endi, you would have to stand ; and now fur
tne (o tender only what will serve for your own
turns, nnd renounce the rest, were to desert
my cause, which before I will do, or desvrt my
conscience, I will rather detert my body, and
deliver it up to yaur lordships to do with it
■diac you will.
L. Kttper. This is a pUce where you should
crave mercy and favour, Mr. Burton, and not
«Mid upon Boch terms as you do.
Mr, Burton. There wherein I have oSeutleil
through bomao frailty, 1 crave of God and man
pardon; and IprajQod, ihatin your Sentence
yo» may to censure us, that you may not sin'
against tfat Ixird.
Thus the Prisoners de^ring to speak a little
more for tbeniselves, were commanded -to si-
lence. And so the lords proceeded to Censure.
X. Cotlinglon. i condemn these three men
to lose their ears in the Pnlace-yard nt West-
nuDSter; to be lined 5,0OOL a man to .his ma-
jesty; and to perpetual imprisoninent in three
remote placej of the kiugdom ; namely, (he
CBStJes of CainarvDn, Cornwall, and Lancaster.
L. Finch. I condemn Mr. Prynn lo be
stipnatized in the cheeks with two- leiters (S
&L) for ■ Seditious Libeller. To which all
the lords agreed. And so the Lord Keeper
concluded the Censure.
Archbishop Laud's Speech.*
My lords; I shall not need ta speak of tlie
me of libelling in any kind : nor
* The original of the fbllowiag Letter from
Baitwick to Laud, is amoug tbe MSS. in the
library of Lambeth Palace, which the Archbi-
shop of Canterbury obligingly permitted to be
copied for tbii work, (*. d. 1809.)
' To Will. Canterburie, repentance end raercie
' from our Lord God,
'Sir; About three daias ago there came to me
' a messenger not unexpected, who cited me
< intotheStarChambar, toantweareto ccriaine
< crimes which there be objected agoiasf me. It
. ' is well, neither am I afraid, neither doe I seeke
* priuily to eschew the danger of tbe Triall, only
' let this bountie of yours (although you be a
■ cruel man) be granted unto us. It shall egg
< forward us miserable men, not only in word
* but ED deed ; bot one tiling there ii which
' tmuUeth me much, povertie and want of
< money, to which your most devooiins priieo
' bath brought mee. I beaeach you therefore
< thatyouwould take pittieupon mee poorsman,
' and to grant some snail parcall of meacjes
of the punishment of ?l
(Cod. I. 9. T." 36. In Jul. c. 75.)
Nor how patiently same great men, very great
indeed, have borne ' anino civili' (that's Sneto-
nius's word) ' laceratnin oxiilinuitiunem,' iha
tenrin^aod rending of (licircredit and rettutntioD,
with n gentle, nny, a generous mind. But of all
Libels, they are rfioet odious which pretend
Kelicion ; us if that of all things did desire to
be defended by a ' mouth that is like an open
sepulchre,' nr by a pen that is made of fi tick
and a loathsome quill. — There were times when
Persecutions wei« great in the Church, even
to exceed barbarity itself: did any Martyr or
Confessor, in iltose times, libel the gnvernoursf
Surely no; not one of them to my best remera-
brAnce: yet these complnin of persecution
without r1i shew of cause, and in the meaa
time libel and rail without all measure. So
little of kill are they to those which suffer for
Christ, or tbe least' part of Christian Helicon.
My lords, it is not every man's spirit to
hold up against the venom which Libellers
spit. For St. Ambrase> who was a stout and
worthy prdate, tells us, (In 1. Apol. David,
c. 6.) not that himself, but that a far greater
man than he, that is, kin^ Dand, had found
out (so it seems in his judgment it was no
matter of ordinary ability) graade in'oenlttm,
a great and mighty invention, how to swallow
and put olT those bitter contumelies of the
tongue ; and those of the pen are no whit leBt>
and spread farther. And It was a great one
iodeed, and well beseemed the greatneu of
David. But I tliink it will be far better for
nietO'looL upward, and practise it, thau to
look downward, and discourse upon it.
In the mean time I shall remember whnt an
Anticnt under tbe name of St. Jerome tells me,
' indignnm est ei prKpostemm,' it is unworthy
in itself and preposterous in demeanour, for »
nan to be ashamed for doing good, because
other men glory in speaking dl. And I can ,
say it clearly and truly, as in the pretence of
God, I have done nothing, as a Prelate, to tha
' out of your treasure, soe much as may suC-
' fice to paie tbe scriveners for coppieing out
' of briefes and articbles, for without coppies
' how shall the controversie be decided, and
' without fees the scribes hands growe faint,
' but yF you will not support tbe cxpences I
' will indeuour for this iliat I poore wretclw
I being altogeaiher fallen to decaie may be ad-
' mitted (in forma pauperis) ; it iroubleth mn
' very much that I should interrupt you with
> my petition, you being at all tjnies imployed
' with waigbtie affaires, but tlie necessitic of the
' times and of my fortunes is so uq^ent that I
' cannot comend my service unto you, without
' some molestacion unto your urgent occupa-
< How thou farest in thy pnllace demandetb
' in limbo palram,
March 10, IfiSO. JffIN BuiwlcKi.
, CiOO^^Ic
727] STATE TRIALS, 15 Chakles I. iGiT.—Piocetdksi^auutBasiKidc, Barton [T3S
N»I suppose our ctillinin u Biihop*, cnnU
not be iniiHe iiood Jure Vivitur, bj divine hghi ;
yet Jure Ecclf-imttce, by eccletustical lighi,
ir onnot be denied. And here in Englaod the
Bislinps &rc conlirnied, liotli in tbeir poner nnii
' ineaoi, by accof padiamenE. So ibat liecewn
sMnd ID as good cnte, u the preKnt lavs of
the rsalm can make u>. And so we miiic
■tand, till the lava Bltall be repealed by tb«
same power that inade them.
Now ihen, suppose we had no other siring
(0 hold by (I say suppose this, but I grant it
hot) yet no man can libel against our CBlling
(as these men do^ be it m pulpit, print, ar
otheriwise, but he liltels against tho king ard ibe
state, by whose laws we an estnblisbld. There-
fore, alt the^e Libcb, lo far forth ai they nre
■gaiust OUT c^ling, ara agniosC the kiu; and th*
law, and can have no other purpose tlian to
stir up Sedition among the people. If tliew
men had any other intention, or if tliry had
any Christian or charitable desire to refoiin any
thing amiss; why did they not modestly pen-
Eion his m^esty about it, that in his prirKtdy
wisdom iie might set all thinas righr, in a joK
and orderly manner } But this was neiUicr
their intention, nor way ; tbr niic cliunours out
of his pulpit, and all of iliem from the prcu,
and in a most virulent and unchristian mamin'
ert themseltes to make a beat among the peo-
ete; and so by mutinv, to eflecc that,whicbby
tw they cannot ; and hv most fnlsc and unjust ,
catumnies to defame both our callings and peC'
sons. But for my part, as I pily tbeii rage, so
I hvaitily pray God tu fbtgive their malice.
Nn nation hath ever appeared more jcaloui
of Religion, than the people of Kn^laiid hari
ever been. And then- leid to God's glory bath
been, nnd a( this day is a great hononr lo thcio.
"Box, this zeal of cfaeiis, hath not been it all
times and in all perwns alike guided by kooir-
ledgc. Now teal, as it is of eiceUent ose
where it teei iu way, it is so very dangotm
company where it goes on in the dark :* and
these meu, koowii^ the dispoution of the peo-
ple, have laboured n«thii^ more than to mis-
inFurm their knowledae, and misguide their
zeal, and so lo fire that into tt ^itioa, ia
hope that they, whom tbey caaselevly luile>
might miscarry m it.
For the mnin scope of these Ubels is, k
kindle a jealousy in men's minds, that thne
are some ereat plots in hnnd, dangerous ploii
(so inys Mr. Burton expressly p. S.) to cliii«e
the Orthodox Helicion established in England;
alid to bring in I know not what, Romilh Su-
uttermnsi of what I nm conscious, hue »icb i
. single hearr, oad with a sincere intention fn
the good government and honour of the Chnrcli.
and the maintenam^e of the Ortbodoi-Troili
■ml Retigino of Christ proressed, established,
■ltd maintained in this Church of England.
For my care «f tliia Church, the reducing of
it into order, the upholding of tiie external
worsliip of God in it, and the settling of it to
the rules of its flmt R«tbrmatian, are the causes
(and the sole causes, nhatsTer are pretended)
of all this malicious storm, which hath Inured
V) blsck upon me, and some of my brethren.
And in the mean time, they which are the only,
or the chief InnoTUtors of the Christian world,
having nothing to say, accusa us of Innovation ;
they themselves and their complices, in the
mean time, being the greatest Innovaton that
the Chriscinn world hath almost ever known.
I deny not but Olhera have spread more dao-
gerous Erron in the Church uf Christ; but no
men, in any age of it, have been more guilty of
Innovation than they, while themselves cry out
i againstit: ' Quis culerit Gracchos!'
And I said weU, 'Quia tulerit Gracrhosf
Snt it is most apparent to any man that will not
wink, that the iiileniion of these men, and
Iheir abettors, was, and is, to r.iiie a Sedition ;
being as great incendiaries in the state (where
they i:et power) as ibey have ever been in the
Chnrcb; Novatian himieir hardly greater.
Our Dlain crime is (would ihey all speak out
•s some of them do) iliac we are Siihops;
(ijnrton ipol. p. 110.) were we not so, some
of us might be as pusabis as other men. And
■ great trouble it is to ihem, that we
io this phice, in Leightoo's C
repeat. Only tlus I nill say, and abide by it,
tbut the Callm^ of Bisbtps is Jure iiivina, by
divino riglit, lhau|h not all adjuncU to their
calling And this I say in as direct oppositioi)
fo the Church of Uoma, as to ihe puritan hu-
mour. And 1 say further : That from the
apostles times, io all ages, in all places, the
Church of Christ was governed by Bishops ;
and Lay Elders never heard of till Calviu's new-
fitngled device at Geneva.
Now this is made by these men, as if it were
. nmtra reeem, aeainst .the king, in rt^hc or in
poncr. But that's a mere ignomnt shift; for
our being Bbhops Jurt Dimno.^by divine right,
takes Quilling from the king's riijht or power
over US. For thniigh our office Da from God
■nd Christ immediately, vet may we not eier-
eise that power, either of order or jurisdiction,
but as G»d huth ap^iointed ua, that is, not in
his mnjrsly'i, or any Christian king's kingdoms,
but by and nnder the power of the king given
as so to do: — And were tliis a good argumeat
Vgainst ua, as Bishops, it must nacda \ye good
agninst Priests and Mmisters too; for tbaoi-
srlveSfiranE that th«r cnllmg is Jure Divino,
by diime right; and yet I hope they uill oot
say, that to be priests and ministers is against
iht king, «r any bit royal prarosativeat
* You maysee it in the example of St. Paul
himself, whose very zeal in (be darkness of his
understanding, which be then had, made bim
perseciite Christ and his Church, Acts iii. S, 4.
Aad he was vary dangeroas company thea ; lor
be 'broalbeil out tfareateuinga against the disci-
ple*, AcU ix. 1. So true is that of S«. GrM.
Naa. Orat. SI. Zebit irttMudiam aeml : all
zeal puis an edge to ancer itself Aad ikat
tnqst DMds b« duigerout u the dark.
739] STATE TRIAl^, 13 Charles L
pcntiiian in rbe room nf it. A* if the external
decent Worship of Gotl could doi b« uptielil
id this kingdom, without bhn);iiig in ot Po-
pery.
Sow bv ihi* art orthein, give me leave to
tell jou that the. Kh>g is moat desperately
abuMii and waiinded in tlie minds of liis peo-
ple; and the Prelates shamefullj.
Tbe King most deaperstely: f>>r there it not
• more cunning trick in the world to withdraw
the people's hearts from their Sovereign, than
to persuade tliem that be is chniiEiing true Reli-
poD and about tu bring in (Toss Superstition
upon them.
And the Prelates shamefiillf i for thej are
charged to «educe, and lay (he plot, and be tbe
instrumeQtii.
For his Hejesiy first. This I know, and
opon this occasion take itjuy duty to speak:
tbere is no prince in Christendom more smcere
in his religion, oor more constart to it, than
the kiof. And he gave such a testimony of
■his at his bma% in Spain, as I much doubt
whether the best of that bction dorst have
done hair so much as his majesty did, in the
face of that kingdom. And this, you, my lord,
tbe earl of Uollaad, and other persons of ho-
nour, were eye and ear witnesses of, liaving the
happiness to attend hiito there. And at this
day, ^s his maieity (by God's great blessing
both on him aiicl us) knows more, so is he more
settled and marc coiilirpied, both in tbe tmth
nf ttie religion here established, and in retulu-
dPtifmifonaeralUhck. [11
And for the Prelates : I assure nyielf, tliey
cannot be. so base ns to liTe Prelates in the
Church of Eoglaiid, and Inbour to bring in the
SuperstiiiouB of the Clmrcb of Rome upon
tbemselies and It. And if any should be so
finil, I do not only leave him to God's judg-
ment, but (if these Libellers, or any other, caii
discover that his base and irrclixiaus &lshood)
to diame also, and severe punishment from the
atate: and in any just wa^, no man's hand
shall be more, or sooner against him, than mine
•ball be.
And for Myself : To pass hy all the scanda-
lous reproaches which they have most iDJuri-
oosly cast upon me, I shall say this only ; 1. I
kno* of no Plot, nor purpose of altering tlie
Religion estubli^d. 3. I have ever been Jiir
from attempting any thing that may truly be
•aid to tena that nay ia the least degree ; and
lo diese two I here offer my oath. S. If the
Itiiu; had a miad to change Relieiou, which I
know he hath not (and God foAiid be should
ever have), he mustveak for other initmmenli.
For basely a* these men conceive of mr, yet I
thank God, I know my duty well both lo God
and the king: and 1 know that all the duty I
owe to the king, is under God. And my great
heppmes) it is (thonch not mine alone, but
yoor lordsbips and all his subjects wiih me)
-that we live under a grncioua and religious
king, that will ever give us leave to len'e God
£nt, and him next. Bat were the days oibcr-
ariie, I thask Christ for i|, I yet kaon' not bow
1037.-
toterteanv man against the truth of God, and
hope 1 sbull iieter learti it.
But to return to the buainesi ; What is ihiir
art to make the world believe a Clioiige of He-
ligion is endeavoured? What! why larsooih,
I bey Bay, there are great Innovations brought,
in by tlie Prelates ; aud such as tend to the ad-
raocing of Popery. Now that the vanity and
fnisiiood of this may appear, I tliall humbly de-
sire your lonlsliips to give me leave to recits
briefly all the Innavaliona cliarged upon tl3^
be they of less or greater moment; and as
briefly to answer them. And then you shall
dearly see, wlwther any cause hath been given
of these nnsavoury Libels; and witlml, whether
there be any shew nf cause to fc^r a Clianga
of Religion. And I will take these great ]fre-
tended Inuovations in order as I meet with
Where the first Innovation is, (p. 3), ' Iliat
' tbe last year's' Fast was enjoyoed to be with-
< out Sermons in London, the auburbs, and
' otiier infected places, contrary to ibc orders
' for other Fusts in roriner times i whereas Ser-
' muns are the only means to bumble men,' &C
To Uiis I say, 1. That an after-nye may,
without offence, learn to avoid any visible in>
convenience observed in tbe former. j\nd there
was visible iaconvenience observed in men's
former fljjckingto Sermons in infected places.
— S. This wits no particotaract of the Prelates;
but the business was debated at the Council--
Table, being a malter of state, as well as of
religion. And it was concluded for no Ser-
mons in those infected places, upon tliis rea-
son ; that infected persona or ftmilies, known
in their own paris)ies, might not take occnsion
upon those by-duys to run to other churches,
where they were not knnwn, as many use to
do, to hear some humorous men preach .- for
6n tbe Sundays, when the^ better ktpt tkcii
own churches, the danger la not so great alto-
gether.— Nor, 3, ia that true, that Sermons arc
the only means to humble men. For though
the preaching of God's Word, where it ia per-
formed according to his nrdinan
means of mnny good effects ir
men ; yet' no Sermons are the only menns to
humble men. And some of their Sermons are
fltteragreatdeal fur other operations: namely,
to stir up Sedition, as you may see by Mr.
Burton's ; for this liis printed Libel was a Ser-
mon lirat, and a libel too. And it is ihe best
part of a Fast to abstain from such Sermons.
^. The second Innovation is, (p. 3.) ' That
,' Wednesday was appointed for the Fa«t-day,
' and that this was done with this intention, by
■ theetample ofthis Fast without preaching, to
' suppress all the Wednesday-Lectures in Lon-
To this I answer, I, That the appointing of
Wednesday for the Fast-day, was no Innova-
tion ; for it was tbs day ill tli« laH f Ml before
x:'f
731] STATE TRIALS, 13 Charles I. Wi^.^ProceedingtagamtBaaHmcKBiirUmi',
this : and I myBelf remember it lo, Hbove*ri>rt]'
Cars since, more than once. 3. If there hnd
en any Innovation in it, the prelatra named
not the duy: my Lord-Keeper, I must (ippeal
to your lordship ; the day wns first named by
your lordship, as the usual and httett day : nod
yet I dare iuy, and awear too, that your lord-
■liip had no aim tu bring in I'opery ; nor to
•uppress all, or any the WedncBttay-Lectures
in London. Besides, these men live to see the
Fast ended, and uo one Wednesday-I-ecture
nippreased.
3. The third Innovation is, (p. 3.) ■ Tbat
' the Prayer for seasonable weather was pureed
' out of this last Fast-book, whicJi was (siy they)
' one cause of Shipwrecks and tempestuous
' weather.'
To this I say, II in the general ; this Fast'
book, and all tliat have formerly been made,
hitve been both made and piifalistied by the
command of the king, in whose sole power k
is to call a Fast. And the Archbishnp and
Bishops to whom the ordering of the Book is
CMumitted, have power under the king to put
in, or leave out, whatsoever ihey thint fit for
IM. present occasion ; as their predecessors
ha»e ever done rbefore them. Protided that
nothing be in cooirary to the doctrine or dis~
cipline of the Church of England. And tliis
■Day serve in the eeneral for all alterations, in
tbat or any other Fast^bouk, or bo.oks of devo-
tion upon any particular occasions, which may
and ought to vary with several times ; and we
may, and do, and will Justify, under hii ma-
jesty's power, all such Alteniliotls made therein.
— 3. For the particular, When this last Book
1VBS set out the weather was very seasonnBle ;
and it is not the custom of the Church, nor tit
in it!«lf, to pray for seasonable weather when
tre have it, but when wa want it. When the
former Book was set out the weather was ex-
treme ill, and the harvest in danger ; now the
harvest was in, -and the neatlier good. — S. It it
molt inconsequent Co say, that the leaving that
Prayer out of the Book of Devotions, caused
the Shipwrecks and the Tempests wliich fol-
lowed. And as bold as they are with God Al-
mighty, in sayine it was tlie cnuse, sure I am,
God never told them that was the cause. And
' if God never revealed it, they cannot come to
know it : yet had the Bithops been' Prophets,
and foreseen these accidents, they would cer-
tainly have prated against them. — i. Had any
, minister found it necessary to use this Prayer
at any one time duriog the Fast, he miiht with
ease, and without danger, have supplied that
nam, by usinit that prayer to the same purpose
which is in the ordinary Liturgy. — 5. I humbly
desire your lordships to wrigli well the conse-
quence of this great and dangerous Innovation.
The Prayer for fair weather was left Out of the
Book fur the Fast ; therefore the prelates in-
tend to bring in popery. An exeellcnt conse-
quence, were there any shew of reason in it.
4. The fourth Innovation is, (p. 3.) ' That
'•there is one very useful Collect Uft out, and
■ clause omitted in another.'
To this I answer, 1. as before : Itwiihtwfal
for us to alter what we thought lit. And I.
Since that Collect made mention oF preaching,
and the Act of Stute forbad Sermous an tlie
Past-days in infected places ; we thought it fit,
in pursuance of that order, to leave oat that
collect. And 3. For the branch in tlie other,
which is (lie first 'collecl, though God did de-
liver our furefatliers out of Roml^li Supersti-
tion, yet (God be blessed for it) we were never
in. And tboefore tbat Clause being unfittingly
expressed, we thought fit to pass it over.
5. I'be fifth Innovation is, (p. 3.) ' That in
■ the siith Order for the Fast, there is a Pif
' sage left out concerning the Abube of Fas(iD|
' in relation to merit.'
To this I answer. That he to whom the or-
dering of that Bisuk to the press was com-
mitl^, did therefore leave it out, because in
this age and kingdom there is little opinion of
meriting, by Fasting. Nay, on the conirsry,
the contempt and scorn of all Fasiing (sare
what humourous men call for of themselves) il
so rank, that it would grieve any Christian insn
to see ilie necessary ordert of the Cliurcb coo-
ceming fasting, boih in Lent, and at other set
times, so vilified as they ate.
6. The sixth Innovation ij, (p. 3.) < That the
' ladv Elizabeth and her princely diildren arc
' daslied' (tliat is then- phn^se) ' out of the
' new cotlect,*whereas they were in the Collect
' of the former Book.'
For this, 1. The author of tlie News knoni
full well that they are lel't out of the CoUect in
the Intter editions of the Common Prayei^book,
as well as in the Book for the Fast. And this
was done according to the * course of ibe
Church, wirich ordinarily names none in dM
Prayer, but tlie right Ime descending. Yec
this was not done tiil the king himself com-
manded it; as I have to shew under his ma-
jesty's hand. — 3. I beseech your lordships lo
consider what must be the consequence ben !
the i|ueen of Bohemia and her children an
left out of the Collect, therefore the PrdaUs
intend to bring in Popery; for that (you know)
they say is the end of all these Iniioniiom.
Now If this be the end and the consequeoce,
truly die Libellers have done ver^ dutil'ully V>
the king, to poison his people with this con-
ceit, that the lady Elizahelli and her childno
would keep Popery out of this kingdom, hot
the kioB and his cinldren will not. And many
as good oaicea as these have they done tb«
king ouite thorow these Libels, and quite tho-
row his kingdoms. For my part, I honour lbs
queen of Bohemia, aiMl her line, as much at
any man whatsoever, and shall he as resdy to
serve them ; but I know not how to depsit
from my allegiance, as I doubt these mea
have done.
. 7. Tlie seventh Innovation is, (p. S;) ' Thst
' these Words' (who art thefalheroftlime elect
and oftheirseeri) < are changed m the pre&te
' of that collect, which is ftir the prince and the
■ king's children.' And with a most spiteful
inference, that ' this was done by the prelaw
73S] STATE TRIAI^, 13 Chaeles I. I<i37.—(md Prj/m./arMvertd LibcU. [734
' (o excliule ihe king's childrin out of the num-
< b»r of God's Et«;(.' And thej coll it ' aa
' intolerable inipirtif, and hurrid treaioo.'
To this I answer, 1. That thii Alteraiion
wai mrule in mj predecenor's time befuie I liad
anj authoriljT lu meddle with ibese things, far-
llier than I was called upon by liim. 3. TLis
is not therefore [o la; en; aspersion upon m;
predecessor, [or lie did in tliat but his duty;
for his majesty acknoiileHgts it was doce hy
hil special direction, as liiivin|( no ctiililren to
pray for. And 3il, this Collect could not be
very old, for it had no being in the Common-
Pnijer-book all queen Elliabetb's time, she
baring no issue. — The trulli is, it wtis made at
the coming in of king Jamet; and must of
necessity be changed over and over ugBin, pro
ratioue Imporma, us times and persons vary.
And this is the ' intolerable Impiety and horrid
Treason' ihey charge upon us.
Id this method the Innovations ore set down
in the ' News' from Ipswich. But then in Mr.
Bunon's < News from Fridny-streFl' (railed his
* Apology)' they are in anoiher order, and more
are added. Therefore with your lordiihip's
leave I will not repeat any of these, but go on
to the rest, Hhicli Mr. Burton adds.
8. The eii;hth Innovation is, Thnt in tlie
Epistle (he SuiKlay before Easter, we have put
out ' In,' and made it, ' M the Name of Jesus'
every knee shall bow : which altcmtion, he
saitli, is directly against the act of partiarnent.
(Burton's Apology, p. 3.)
Here give mcTeave lo tell you, icis ' At the
' Name of Jesus,' in the lale learned Transla-
lioa made in king James's time. About which
many learned men of best note in tlie kingdom
were imployed, besides some prelates. But lo
this I answer; 1. TiS true, the Common
Prmyer-bouL was confirmed by act of purlis-
mem, and so nil things contained in it, at the
passing of that act. But I hope if Hoy thing
were Inl^e printed then, the parliament did not
intend to pass those slips for current. 2. I nm
not of opinion, thnt if one word be put in for
•aother, so they bear both the same sense,
that there is any great matter done agninst the
act of Parliament. 3. This can make no Jn-
Dovation. For ' In the Name,' and ' At (he
' Name of Jesus,' can make no essentini diil'er-
eoce here. And Mr. Prynu (whose darling
business it hath long been to cry down the ho-
nour due to the Son of God, at the mentioning
of his saving name Jesus) knows the Orammut
rule well, * In a place, or at a place,' &c. 4.
If there were any error in the change of ' In'
into ' At,' I do hero solenrmly protest to you,
I know not how it comet for authority froui
the Prelates, (he printers had none; and such
a word it eaNly changed in guch a negligent
press «x we have in Engtnnd. Or if any alter-
ed it purposely, for ou^ht [ know, they did it
to gratify the preciser sort; for therein tlicy
followed the Geneva translation, aud printed
at Geneva 155T, where tlie words are, ' At the
' Name of Jesus.' And that is eighty years
ago ; and ibetefme no lonovation made by us.
5. This I iind in (he queen's injunciions, (52.)
without eitlier word. In or At, ' Whensuevec
the Name of Jesus shall be in uiiy lesson, ser-
mon, or otherwise pronounced in the church
('tis enjoined) ihnt due reverence be luadc of
nl! persons, yuung and okl, with lowliness of
coursy, and uncovering of the heads of the
menkmd, as thereunto doth necessarily belong,
and heretofore h»th been accustomed.' So
here is necessity laid upon it, and custom for it,
and both eipressed by authority in the very
beginning of the Refljrmatioa; and is therefore
9. The ninth Innovation is, ' That two place*
are clinnged in the Prayer set fiirtli for the Gllli
of Nmember; and ordered lo be rend (tht^r
say) by act of parliament. The first place it
changed thus, from, root out that Babylonish
■nd antichristian sect which say of Jerusalem,
Stc' Into this form of words ; ' root out that
Babylaniiih and antichristian sect, (of them)
which SIT, fitc' The second place went thus
in the old: ■ Cut off those workers of iniquity,
whose Religion is Rebellion. But in the bootc
printed IC^JS, '<ii thus altered: Cut off those
workers of iniquity, who turn Religion into He-
beltion, Ice'
To diis I sey', 1. "Tis a notorious untruth,
(hat this Book was ordered to be read by act
of parliament. The act of parliameDt indeed
is printed before it: and therein is a command
for Prayers and Thanksgivings every 5lh oC
November, but not one word or syllable for the
Form of Prayer. That's left to the Church,
therefore here's no innovation against (hac
act of parliament. S. The Alteration first
mentioned, tliat is, ' That sect,' or * that
sect of Ibem ;* is of so bmall consequence,
as it is not worth the spenkitig of. Besides, if
theie Im any thing of momeut in it, it is atv-
awered in (he next. S. Both for that and (ha
second place, which seems of more moment;
and so for the rest not only in lh*l Booki but
that other also for his majesty's coronation;
his majesty expressly commanded me to maka
the Alterations, and see them printed. And
here are both the Book* with his majes(y'a
warrant to each of them. So that herein I
conceive I did not offeud, anleu it were that
I gaie not these men notice of it, or asked them
leave to obey the king.
Aeainst this there can be hut two Objections,
should malice itielf go (o work. The one is,
that I moved bis majesty to command the
change. And Ihe other, thnt now, when I saw
myself challenged for it,iprocaiedhis majesty'^
hand for my security.
To these I answer clearly: 1. That I did not
move the king, directlv. or indirectly, to maka
this change. And ^dly. That I had his ma
jesly's haud to ths Book, not now, but then,
and before ever I caused them to be printed, -
a* now ibej ere. And that both these aM
true, I here again Ireely offer myself to mjr
oaih. And yet 3dly, That you may see his
gracious majesty used not his power only in
commanding this change, but bis wisdom ^m ;
TS5] STATE TRIALS, I3Ciiari.es 1. 1037,
I ihall adrenture to gire jou my Reawini, such
ai th«y are, why ibis alteriduii wai most lit, if
not necejSBry.
My Knt Iteason w, la tlie litany of Henry
S*, and also under Eduard 6\, llifre was ihis
Clause; ' t'rixn ttie 'I'yrnniiy of the bishop of
Home, imd all his detestublc ecionnities, IroBi
all false doctrinp, &c. Uood Lord deliver ua.'
But in the Litany in queen Etiiabeth's time
this Clause about the Po^e was left out,
and it seenis of purpose, fir avoiding of scan-
dal: And yet the prelales fur that were not
accounted liiiiovuiors.or introducers of Popery.
Now H is a fdr greater scandal lo call their
religion Rebelliou, ib^n it is to call their chief
bibhop tyroDI. And this reason is di-nvrn from
scandal, which must ever be avoided as much
My second Iteason is, That the Learned
make but ihree reliRionsto huve been of old in
the world, Paganism, Judaism, and Chriltiauity.
And now they have added a foorth, which is
Turcism, and is an absurd mixture of the other
three. Now if this ground of theirs be true,
■1 it is generally received, perhaps it will be of
riao;erousconse<fuence sadly to kvow, that the
Popish religion is rebellion. That soiite opl-
niuDS of theirs teach rebellion, that's apparent-
ly true, tlie oiher would be tltouitht on, to guy
no more. And this restsm well neighed, is
take* ftom the very (bundations of religion it-
self.
My third Rrnson is, Because if you make
their Religion to be Debellion, then you make
their Religion and. Rebellion to be nil one.
And that IS ajiainst the ground both of state,
and the law. For when divers Romish priests
and Jesuits hnve deservedly suffered death for
Treason, is it not the constant and just profe»-
aion of the state, that tliey never put any man
to death for religion, but for rebellion and
treason only f Doth nut ihc state truly aflinn,
that there never was any taw made against the
life of a papist, qualenui a papist only 1 And is
not all this stark false, if their very reli^on be
tebellion? For if Ilxir religion be rebellion, it
is not only false, but impossible, tbat the same
■nan in the same act should suSer tor hit re-
bellion, and not for big religion.
And this king Janies of ever-blessed memory
understood passing yiell, when, in his Pnemo-
nition to all Christian monarchs, (p. 336.) he
saith, ' I do constantly maintain that no Pa-
' pist either Id my lime, or in the time of the
' late qaeen, ever died (or his conscience.'
Therefore he did not think their very religion
was rehrlliiiu. Though this Clause passed
through inadvertency in bis tiina: Atut this
the justice <
* It was put into the litany of Henry 8, his
time, as appears in his primer, with his Injunc-
lion before it.
f And it is in both the ^rrice-Bboks of
Edw. 6, both that which was printed, MW
•nd in that which was after, an, ISM.
— Proatdingt agabiH Battvikk, Burton {796
sons, or whether any other belter, were in bi»
iiiHJesty's tboug'its when he commanded the
Alteration of this Clause, I know nut. Bnt I
took it my dnty to lay it bolbre you, that ibe
king bad nut only puwer, but reuson to com-
10. The tenth Innovation is, (p. 3.) ' That
■ (he Prayer for the Navy is lelt out of the lata .
' Book for the Fast.'
To this 1 SRj, there is great reason it shoold.
tlieu any Navy at sea ; for almost all the tliips
were come in, befure tlie Fast-book was set
out. — But hon'soever,nn excellent conteigaence
it is, if youinark it ; the Prayer for the Navy
was left out of the Book fur the Fast, therefore
by that, and such-like Innovations, the Pre-
lates intend to bring in Popery. Indeed, if
that were a piece of the prelates plots to bring
in Popery from bryond sea, then they were
niightdy overseen that they left out the Prayer
for the Navy. But else what reason or conse*
Sience is in it, I know not, unless perhaps Mr.
urton intended to befriend Dr. Bastwick,and
in the Navy brinx hither the Whore of Baby-
lon to be ready Tor his christening, as he most
pro&iiely scoffs. — Well ; I prav God the time
come not upon this kingdom, in which it will
be found, that no one thing harii advanced or
ushered in Popery so fast, as the gross absurdi-
ties even in the Woi^hip of God, which these
men, and their like, maintain b«th in opinion
and practice.
11. The 11th Innovation is, (p. 105.) ' Tb«
' reading of the second Service at the ComtnU'
' iiion-Table, or the Altar.'
To this, 1st, I can truly say. That since my
own memory, this was in use in veiy many
places, as being most proper (for those Prayers
are then read which' both precede and follow
the Commanicn) and by little and litiLe this an-
cient custom was altered, and in those places
first where the emissaries of this ftciiuu came
to preach. And now if any in authoriu offer
to reduce it ; this aucient course of the Church
is by-and-bye called an Itluovation. S. With
this the Rubrics of the Common Prayer-Book
agree; for the first Rubric after the Comma.
^T«.. .-II.. ..* .l._. „« ir_»_ J_ .1 L
> tells I
that upon Holy-day t, though
all else that* s ap-
_ _ . shall be read.
Shall be read? That's true, bat where ? Why,
the last Rubric before the Communion tells us,
that the priest, staoding at the north side of tho
holy tsble, shall say uie Lord's Prayer with
that which follows. So diat not only iha
Communion, but the Prayers which acoompsh*
the Communion, which aro commonly called
the second Service, arc to be read at the Com-
munion-Table. Therefore if this be an iono*
vatioD, it is made by the Rubric, not by tha
Prelates; and Mr. Burton's tcoff that thia
' secondSenice must be served in for dainties,*
savours too much of helly and profimation,
1). One tiling stickimticfa in their ftomadi^
ETTATE TRIALS, ISCflAnLEsl. lC>37,—aMlPiym,M»>x.ralLiic/t.
7S7J
and tlie; c«U it
is, 'bowiug, or daiag reverence at our nrat
'coming into Uie cliurcfa, or at our nearer a,y-
' proacb«9 lo die bolf table, or tlie altnr,' (chH
it «hMfaer ;oa will) in whicli tbty »iU urarii
bftre it, that «b wortbip the liol; [able, ur God
knows That. (P. lOS].
To ibis I Muwer, Itt, That God forbid tre
ibould H'onliip any tiling but God hiuu«ir. 9.
Tbat if to wonbip God wben n« eoier into bii
iwuCi or apprsoch hit Altar, bean innoviLtiun,
it ii a very old one. For Muses (Num. xx, (>.}
did rererenec (U tbe ver; door of the Taberna-
dd ; Beieki^ and all (bat were presenl with
him, when thej bad ilwde an end of ofiigriug,
bowed and woraliipped (3 Cbron. xi'a. SO.) ;
Darid calls Iba peo^ to it with aVenite, ' U
' cone let U9 wortbip and &il dowii, and kne«l
' befbra the Lord our Maker (PsaL xcr, 6.) :
And in all these ptacw, I pnj mark it, it i»
.bodtlj ir(»t)up. — Nor c:vi they lav, that tliis
vBi Judaical wortbip, and now not to be imi-
tated. Fw long before Judaism buau. Bethel,
the Unute of God, waa a place of revcrcncr,
thererore cMtainlj, of, and ,to God. (Gen.
in-iii.l7,&c.)
Atid alier Jud^ii^U worship endtd, Vi*Ue,
A4areautt, as fur upwards aa there n any track
"aLilnrgv, was the Jaf rMJiu.of the priest "
pss
the [«tiu church o
And i:
And you, ray hoDourable Lorits d( tlie Ga:^
ter, in your great solt^n nicies, you do your ie<
verentx, aud to Aiiuidny Gud, I doubt not,
but i^tit isviTffii allure, lunardt h'n Altar,
us tlie greatest {itaoe of God's reaidence upca
enrlh. I gay the )creal(st, yea greater than ch«
pulpit; for there it is. ' Hoc ftt Corpus meuin.'
Thiaitiny body; but in the pulpit, it ii tit mott
but, ' Hoc e»t Verbum meuia,' Thi* is ay
ivord. Aud a greater reverence, flo doubt, it
due to the Bo'ly than to the Word of our XiMd.
And so, in rtlation, ansiierably lo the tfamiw
where bis body is utually present, (ban to tbc
&eBi, whence his word useth lo be proijainied.
Aod God bold it there as his word ; iur a; too
many bien use the Huiner, - it is ' Hoc est ver-
' hum diaboli,' l-lus » the W«rd of the devil,
in 100 maaj plact-s (witoess Sfdition, oiiil tb«
like to it). And ibis rcTerente ye do when y«
enter tlie Chapel, and when you approach
□tarer to-offur. And this is no innovatiao, iar
you are bound to it by your Order, and that i*
.not new.
And Idolatry it is not, to worship God to-
wardiliiiboly table; for if it hadibeen idulalij,
I presume queen tliiabcUi and king James
would HOE liave praaised ll, aa uot in those so-
lemnitiea. Aitd being not idolatry, bat true
'divine worship, you will, I hope, give
J'raysrs of tlte church of England, this was ra-
taiiied at the Rctonaalion ; and Aat Psalm, in
whicJi is VtnUe, Adortam, is commanded to
Im^ the Morning Service every day. And
for au^t i know, tba pliHC may as well leave
■at theVeatt*, as the Adoremui ; thecniling
ib« poopta to (Jieirduty,nst^ div:y itself, HJiea
Ihev are .come,
• Tharefore e^ea aocordiog t« the, Servic«-
boek of tlie Cbuich of Euf^land, (he prieU and
the people b>uh. ars cidled upou, fur external
and boaily revereitoc and wornhip of Gyd in bis
«tu)rcb. Therefore tbey wliich do it, da jiot
innovate. And yet tbe govemmeul is su tno-
derate, God grant it be not loo loose there
while, that no man ii coastrained, nu man
^utstioned, osty reliuoiuily called upon, Vcuite,
^iortaat, ' Came, let us worsiiip.'
For my own part, I take mysilf bound to
woiabip.witb body, as well a* in soul, whenerer
I come where G<«1 is worshipped. And were
tUs kiujidom such as would allow no hnly ta-
ble standing in its pniper place, nad such
{dace* wme there are, vec 1 would wnnhip
God wbeo I came into bis bouse. Aod wrre
IJbe tinsea sucb aa should beat down Cburcbei,
and bU i^ curiou* carved work tliereii^ with
axes, bmI hananers, and sudi limes have beui,
PsaL lixtv. 6, yet woiild I worship in whot
pUce soever I caiB«~tO pray, ihuueli there were
Dit so much as a stone laid for Bethel. But
this is the mitciy ; it is supentition now^a-dayi
fer any nian to coma with more reverence iiilo
• obarch, tliBD a linker sad bis bitch cum*
Mto aa ale-bousa; the c-impaiitoti is too
hwilj. bur my juit iudiguatiuii M the prtb-
laoeaeM of the timM inaL«t ne sptak '■'
VUl. Id.
the daily ' priest jfare lo wcirtliip God as yourselves dp;
for if it be Gttd's .ivot^ip, I ought lo do it a*
well US yoa ; and if it be idolatry, you ought not
to do it mote thim I.
I suy ^aiu, I hiipe a poor priratnay «orslup
God with as lowly reverence as yon do, tinea
you are bound by your ordtr, and by your oath,
according to a caiuiitiuition of Henry tlie id)
(as appears In Ubro Nixro Wiudesorieiiki, p.
CS.) to give due honour and reverence ' duouait
' Deo, et altari (jos, in modnm vironim ercic*
' liasticurum ;' ihit.is, to the 1/ird yoikr God,
imd lo bis altar (for there is a reverence due to
that too, ^u^h such as comes liar short of il»-
vine wonbip) mid tl.is in the mnnner as ecck-
uastical ptnuns both tuinlup and do rev«-
The ktorjr wbicb led in this Decree is tti'ip:
King Henry lUe iith, that noble and viciiirioua
prince, retumriig gloriously out'^f France, sat
W this solemnity; aud tindioE the Knights of
tlie Order scarce buw to God, or hut Jightly,
and then how towards him and liis Hen^
stnnled at it (being a prince then grown as re-
lif!'Diii aa he siai before victorioub), and after
asking ifae ntaoa, (tbr till then ibe kniithts of
the [»deT nevtr bowed toward the kiug or hit
seat) the duki- of Berifbnl aiMiverMJ, It wat
settled by a Cliapter Act three years befor*.
Hcieii|iuB that t^nt kiiig replied. No ; I
•ill none of Ibis, till yim the koitliis do it tetii
beni, «eU eoiiUKh. aivd with due perfoimiince ■•
AlmigUy God. Aud herenpno tlie fore-named
act prooeedod, ih.il tlie* sbnuld (t« ibi^ iloty
la Almi|;iity God, not slinl'tty, but ■ ud moriuis
■ virimUn eccjesiasticoriim,' as low, as well a*
decently as clentymen used to do it.
Now ifyou nil! turn this «ff, and sajr* it ■>•
•i B
739] STATE TRIAIS, 13 Chables I. imT.—Fraeeedinsiagantt Basm-ick, B«riOB [7«
out Poperj ail their times, and jet left tbehc^
Talile stnndiiig at it did io the queen't tbnr,
■n(l all of purpose to advRncc Or usbec in Po-
pery, which tdey kept out f .
()r »hat ii the matrer. Mb; ibe liolj TaUe
itnnd cliix wnj in tlie king's chapel ormb»-
drills, or biihnps cbapcis, nnd not ehewticTtF
Surely, if it be decent and fit fiir God'aserrite,
(he iiiperslition of tint age so to do ; Bishop
Jcwd will come in to help me ther*. Fiji'
where Harding noines di^er? ceremonies, and
particularly bovring themselves, and aduring at
rhe Sa'crarnent, T lay, ' Adoring at the Sacra-
ineni,' nut ' ndoHni; ilie Sncrameot :' there
bist)'>p Jewel (ihftt learned, pninfal,aad revp-
lend prelate) approres all, Imth the Kneeling
nnd tlie finning, and llie gieniling up at the
Gospel (which m nniient as it is in the church,
tuid cemuion cuiiom, is yet fondly oiide
■oother of their Innovntioiis :) And further
the bitbop adds, ' That they are all commend-
able gestures, and lokeni of devoiion, to long
u ihe prople understand what they menp, iDtt
ua the prople did ever understand them fiilly,
and apply theiu tii Gwl, and to none but God,
till tboe fnctious spirits, and their like, to the
great disierrice nf God nnd his church, went
about to persiiade theni that tliey are lupet^ti-
tious, if uut idolatrous gestures ; nt they make
every thing else to be, where God is uat lerved
13. ' The thirteenth Innovation is. The pldc-
ing of the holy Tahle altRr-wite, at lite upper
end of the chancel; that is, thescttingof it
North and Sou^, and pltclii|' a rail before it,
to Jieep it from profanatmn, which Mr. Btirton
(P. 4, S, 105,) says, is done to advance and
nsher in Poiiery.
To this 1 answer, thnl ll is no Popery to set
n rail to keep Prufanniion From ihKthoh Table :
nor is it any Innovation lo place it at the upper
end of the chancel ua the nitiir stood. And this
appears boifi'by the practice and by the com-
mand and canon of the church ol Englnnd.
First. By ihe Practice of the church of England.
For in the king'), niyal cliipels, and divers ca-
Ihedral;, the holy Tiibla lialh ev.T sitice the
lUlbrniatiDii tiaod it the upper end of the
choir, wiib the Itirge ur liill side tonards ihe
people. And lliiiugh it stood in most purish
churches the other way, vet whether there l.e
not more reason, the pnriih churclioa should be
'made conformable to the Cathedral and mo-
tlier Churches, llian the Catliedralj to ihem. I
leave to any renson able man lo judge. And
yet here is nothing done' either by violence or
command, to take olf the indifferency of the
standing of the holy Table either way, bnt only
by layii>g it fnirly beRire "len, how lit it is there
should be order and unilbnnity: I say, still
teicrving the indilTcreiicy of the standing.
But howsoever I woald fain know, how any
discreet, iiioilerate man darrs sav, thnf ib'e
placing of the holy Tublo nltnr-wise (since they
will needs coll it so) t* d'ifle either to advance
orushsr in Popery.' Fordid queen Bizabeth
banish Popery, nnd yet did she itll ainng her
veien, from first to la't, leave the Cnmmunion-
Tnhle so sanding in her own chapel ruyal, in
St. Paul's and Westminster, and other places ;
nnd all this of purpose to advance or usher in
that Poperv wliirfi she hnd driven our ? And
•tace her [Jeatlt bare tno (niciotts Jtiugs kept
church to disserie God in by any supertliltocn
rites. Where, give me leave to tell yoa, that
the king and his chapel are most jpe^I^ely and
with scorn abused, in the liiAt leaf of Mr.Bat-
lon's mutinous Appeal ; for such it is.
Secondly, This appe;irs by the Cbdob or
Rule of the Ehurch of England too: (or itii
plain in the Inst Tnj unction of ilie queen, TbU
the holyTnble ought to slind at the upperend
of the choir, North antt South, ot ahu>.»iM.
For the words of the ipieen's InjuBctioni art
these: 'The holy Tabit in every chnrefa'
(mark it 1 pray, not in tlie royal chapel or ti-
thedrals only, but in every church) ' shall be
' decently made end stt in die place "here the
' altar stnod.' Now the Altar atood at the
upper end'of the chuir, Nnrth and South, ts
appears before by the practice of the churck.
And there to set it otherwise, is to set it cro9
the place, not in the pUce iihere the nllsr
siooQ; nnd so ' Stulti dum vitant vitia'— wesl
men, as these Libellers are, ran into om
Supentition while they would avoid BoDlbtf;
fciT they run upon the Supentition of iha
Cross, »hile they seek to avoM the Supeisil-
lion of the Altar. So you see here's neither (\i-
Eery norrnnovMion in all (he prficiiccor<^setn
.liznbcth, or since. These words of the Injimc-
tioD n^ to plain, ax tliac thej can admit of an
shift.
Anil giie me leave tn l(^ yoa, that a viry
learned prelate of this Church, and one whom,
I think, the»e men will not nccuse, as ■ aian
likefi advance or u^er in Popery, is uflbesaaw
opinion ; It is tny lord the bishop of Salisbury.
Some diTerence was lately rising nbimt placing
Ihe Coraniunion-Tahle in a parish church of kis
Diocese. The bishop cftrefully to prevent sU
disorder, sends his Injunction (Mny IT, 163T.)
under hit hand and s«il to the rniale and
chinrch wardens, to settle ihnt btisineas: In
"hich he hath these (no passnges rFinarkible.
I have seen and read the order. The lint f*-
sage ii ■ ' ~ ■ ' ■
kingJ.inie^ tlie Communion Table should or-
■ diiiurily be set and ktniid with ihe side lo ll>s
' East-wall of the ehanret.' Tberrtnre ihitH
no Innnvntinn, tinee there is Injunction and
Cnnnn fcr it. The oiherpnssage-iaihis: 'It
' is imiorance' (salth thai Ieam«l bishop) ' M
' tlunk that the standin|r of tlie bot^Tatile there
'relisbefpfPopnpt.' Tlwnfor^ if it do not ••
T4I] STATETHIALS, i5 CiiAtLa I. lliSl.— and Prym, for $eMralLibcU. [7«
mucli u relitb of Popery, it can neiiher advance
n, iiur uiher ii in. And ibcr«rore this n a most
vdious tluuder and sc.iiidul cust U|)uii u^i.
So faere is eiiouuh buth tor the fniciise and
Rule of ihe Church of England' since the Re-
fbnnatiuii. Now before that tiine, botli in tliis
■od oiher cburchra of Ciirittendom, in tlie £U«t
and West, ordinarily, the bnly Table or Altar
■loud so : avnintt iha Mr. Burton say* httle.
But the Lincolnshire niiniitfr comes ill tn
plaj the t'uritan, for [hat, Coilcemiog nbich
Bo )lf (talliug rhus in mj way; and tbe nanieleu
Aotlior i.f it, I ihall otilj' say th««e tw« thing*.
The one it. That the Author prevaricates from
the lirst' Vord lo the lut in the Book ; for be
takes <in him both for tbe iiuoie and far the
^ciugof the holyTable, and ttielike,to prove
that generally and univetviiiy, end ordinurily
in llie while Catholic Church, both East and
West, the holy Table did not stand at the upper
end of tlie choir or chancel. And this be must
proiT, or I c doth nothing.
Now when lie comes id make hig Proofs,
diey ar* almost a|l of them pcrcicular, Tew or
none general and condudent; for he neither
brings iesiini<]iii(;s out of the general and re-
ceived Rituals of the Etistern and Western
Churdies, nor ol' Faihcrs and Histories of the ,
Church, which speak in general terms of nil,
but where they speak of pnriicular ch'irebe*
oiUy. — So that suppDse (he mast thai can be,
ituit a, suppose liin qiiotntions be oU truly
. tilledged, and true too in the sense tlmt the
minister takes them (tliough in very trnih, the
places, most of them, are neither truly altedged,
iior Mnsed) yet they are but Exceptions otj end
Eiempiions from, the general practice. And
yon know both in law and reason, ' Exceptio
' firmat regulam in non exccplig,' So that upon
the sadden I nm not able to resnlvc, whether
ihii minister hath done more wrong to himself
or his readers, for he hath abused both.
Tbe oiher is. That in iho Judgment of ver;
many learned men, which have perused thia
Book, the Author is clearly conceived to want
a great deal of that leiiming to wluch lie pre-
tends; orelse to hare written this Book wholly,
and resolvedly against both hU science and his
conscience, And for my own part, I am fully
of opinion, tliis Book was thrust now to the
preit, both to countenance these Liliellen, and,
as mnch as in him lay, to tire both cborch iind
itue- And thou^ 1 wonder not at the minis-
ter, yet 1 should. wooi^er at the bishop uf the
diocese (a man of learning and experience,) that
he thould give testimony to such a business,
•od in auch times tii these.
And once more, before I leave the holy
Table, name, and thing ; give mc le'avelo put
jpoo in mind, that there is no daneer at nil iu
the aliar, nnme, or thing. For at the beginning
of tbe ReformaiioD, though there were ■ tnw
for the taking down of the altars, and setting
Dp of holy Tables in tbe room of them ; yet in
tome pinces the altars were not suddenly re>
ktovecf. And what inys the queen in her In-
junction to this ! Vhj, she inys, ' That ibew
' seems no matter of great moment in this,
' s.iving for uiiifbmiity, and the better imitation
' uf the law iu that behalf.' Tlieref<ire for auy
danger or hurt that was in the altars, nadie, or
thing, they might even then Late beta left
ilanding, but fur uniformity, and tbe iuitation
of the law. — But bowwever, it follous in tbp
same Injunction, * tlint when the altar i> taken
' down, ilie holy table shall be set in,' (not '
cross)' iheplace where the altar stood;' which
(as is aforesaid) must ifeeds be »ltar-»ise.
14. I'be fourleenth and last IjinovBtioD
comes'witii a mi^bty charge, and it is taken oiU
of an Epistle to the temporal lords of his ma-
jesty's privy council. Of which Epistle we got
one slieel, and so (Ibr aught I yet know) that
impression slaid : In tliat sheet u tbischai^;
the words are, ' The prelates, to justify their
' proceedings, hav^ forged ■ new Article of
' Religiop brouglit from Rome, which .gives
' them full power to alter the doctrine and dis-
' cipline of our church at n blow,- (as they itt-
' terprat it) and havt foisted it (such is ilieir
' language) Into the beciuning of the tneoiietli
' article ot our church.' And this is in the last
edition of the Articles, anno 1C38. in affront
of his majesty's declaration before them, &c.
The clause (which they My is forged by us)
is this: ' The church' (uiat is, the bishops, u
they expound it) ' hath power to decree Kites
' and Ceremonies, and nuihurity in mntteis of
' faith.' (The word is ' controversies of faith,'
hy their leove.) ' This clause (say they) is m
' forgery fit to be eswnined, and deeply cen-
' suied in the Star-Chamber. For it is not U>
'be found in the Latin or English articles of
■ Kdward 6. or queen Elizabeth, ratified by
' parliament.' And "then in the margin thus,
' If 10 forge uwill or writing be censurable iu
' the Star-Chamber, wliich is but a wrong to a
■ private man; how.much more the Forgery of
' nn Article of Religion, to wrong the hIioIo
' church, and overturn religion, which concern*
' all our souls ?* This isabeaTycharge,my lords,
but 1 thank God tbe Answer is easj.
And truly.I grant, that to forge an Article of
Religion in whole, or in part, and then to thrust
it upon the church, is a mnst heinous crimek
far worse than the forging of a dped ; and ia
certofuly very deeply censurable, in ihii court.
And I would have hunihly besoi^ht yon, that s
deep Censure might havebeen laid upon it, but
thnt this slitel was found after, and so is not
annexed to the Information, nor in Judgment
at this present before you.
But (hen, mv lords, I nmst ull you, I hops
to make it as clear as the liay, that this Forgery
was not, that this cLiuse mentioned was added
by the prelates to the Article, to gain power iw
the church, and so to serve our turns. Butlhat
that clause in the beginning uf the Article "as
by these men, or at leatt by some of llifir fac-
tion, rased out, and this to weaken the just
potver of the church, to serve their turns.
TJiey say (to justify tlieir charge) that this
- - * found in the Articles, Enr
Clau
r l4Cin, of either Eilw. C. or iju«ei
In E^
743J STATE TUlALS, 15 Chau&i I. Xml .—Proeeedinp against Bativnck, Barton [744
I 1^71, and rid the church almott
their pti
pibeth. I niis«er. The Articles of'Edw. C.
•nd those made under queen Eliiabedi, differ
very much. And thoseofE^Iw. 6. nrenot now
bindin|(. So whether theclouie be in or out.
t)f tlieiD, it is not umcli msterial. ,
fiiit for the Aniclpi or the Cbtirch of Eng-
land, made in tlic queen's lime, uud nnir .in
furc-e, that ihia CI..Ube fbc the power of the
church, to decree ctreiuonien, nnd to have au- |
ihority in controvergln.tjf fuitli, should not be
found iu Enjll^di or Latin copips, till the <rear I
1638, that it was set f.tith wuh tUe king's dc- I
clarotion before iT, is to me a oiiiadc; but;
your lordships shall nee the falsbood and bold- ;
nessoftltesGiopn.
What ! Is tills oilimiativc clause in no copy,
English or Latin, rill the ycur 1636 ? Stranj^ 1
Why, mj lords, I have a copy of tl-.e Articles in
Endish,of the year 1013, liid of the year 1605,
•udorihe yrar 1693, and in Latin of the year
1363, which was one of the first printed copies,
if not tlicfi^of all. For th* Artides were
•greed oa but the '2001 day of January, anno
1569-3. Aud in alt tlioe, this atfinnativc
Clause fortliechurch's power i9 in. And is not
this stnuiga boldness ihcu to abuse the world,
and lalsly to say "tis in no copy, nhcii I mjsetf,
out of my own store, am able to shew it in so
many, nnd to arttieiuly 1
But, my lords, I shall make It plulner yet :
Tor it is nut fit concerning an Article of Itdi-
piun, irnd nn ArticU of tach consequence for
the order, truth, and pcoce of tljis church, you
•hould rely upon my copies, be they ucver sg
many, or never so ancient
Thererore J sent to the public Records in my
Of&ce ; and her« under my otficer's hand, who
is a public ^lolary, is returned me the twentieth
Article with this affirmaiive clause in it. And
rfiere is also the whole body of the articles to
be seen. ''
By this your lordihips see how free the pre-
lajei nre trom forging tJiii pan of tlie Article.
Now let these men quit tTiemselies and their
&ction as ttiey can, for tlieir InHe:t F.spurgnto-
rius and iheit foul rssurc in Jea'iing out this
[wrtofthe Article. For to leaveoutof an Ar-
ticle is as gfeat a crime as lu put in ; nnd ••
main rosare is as censurable iu iliis court as a
forjery.
why, bnl then, nir lords, what is this mystery
ofitiiquity? Truly, I cangot certainly tell ; b-ul-
Mfkrotlcnnjl'll tell you. The Articles you
an were fully and fairly ajreed lo, and sub-
scribed In the year lfi63-3. Biit .if«r thin, in
the year 1571, there were some that rofiised to
Bubscrilie; but wtiy they did so, Is not rccurderi.
Whether it « ere af.out this Art ide or any other,
Ikiiow not. Bat in fact tliis is manlftst, that
id tliai year 1571, the Articles were printed
both in Latin and Entilish, tnid this clnuse for
tbechuichkftoutofboth. Andcennii'ly thia
oould not I e done, but by the malicious cun-
niogoftbat opposite faction. And though I
•hall spar*- dead men's riuiie* where I have not
certainty ; yet if you be pleased to look back
*iul consider who they Mere that gorernedbuei-
, and how potent the aacestnn of
these Libellers begun then to i^row, you will
think it no hard mutter to have the Articles
printed, artd this datise left out.
And yet "tb pliiin, I'liat, aRer lite stir ibont
Sobscripiion in the year 15T],lh«.^rticlawen
settled and nilncrilied unio at ln>C, ns in the
year I56S, with litis clause in thtin for tbe
church: ' ftir loitking fiirtlirr into tbe Kecordi
which arc in mine own haudt, ) have fonnd ihr
book of IJ6f-3, subscribed by all the luwtt
hou'e of convocation , in this ve^ year of cus-
tradiciicm, 1571. Dr, John Efmar^whouM
after lord bitlioji of London) being then pnjo-
cutor ; AleiBiider Nowel, ifean of St. Vaul*!,
having been prolocutor in 136--3, and yet lir-
ini, and present and subscribing in 15T1.
ThereFore, I do here openly iff Star Chamber
charte upon that pure sect this foul conaptitn
of fulilfying the nrtidcs of the church of Er^
land, let tliem tnke it off as they cso.
I hare now done, and 'tis time I should, with
the Innovations charged upon the prelates, and
tit to be answered here. Some few mure there
are, but they belong to mfttier of doctrine,
which ihfll presently be ansnered, jutte Toht-
miiie, at lar£e, to satisty all well minded ptople.
But when Mr. Burton's Book, ivliich is the nuiio
one. Is answereij, (f mean his Book, not his
niilin^) neither 9rynn, nur Ftasinick, nor any
attendants upon Babshnkeh, shall by me or oiy
care be answered. If this court £nd not ana;
to stop these libellers mouths and ptns, fur nt
thev shall rail nn till the^ be weiry.
Vet one thing more, I befetch you, giremi
leave to add. Tis Master Barton s Chargelp.
ITS.) ifpon the prelates, Th&t the Censures foi^
merly laid upon malefactors, ore now put upon
God's niini<iters for their virtue and p'etj. A
heavy charge ihis too. But if he, or ai>y aian
else, csu shew that any man hath been punisb-
ed in the High Comniission, or elsewhere, Lir
the prehitei, for vinue and piety, there is.»ll
the reason in tbe world we should be sereiely
punished ourselves. But tbe truth Is, tht «it-
tue and piety fur which ibesfe mlni'Iers ore pu-
nished, IS for preaching schism and sedition,
niHny of their sermons being as bad, as their li-
behi 1 as Burton's libel was one of his »TmoD»
first. Bnt whether this stufThive any aiEnity
with virtne and piety, I stibmit to any Cbrittisu
And yet Mr. Burton is so conAthnt nf hit
innocency, even ia this cause wherein he hadi
si( (iiully carried hhnself, that he breaks forth
into tiitse -words, (p. 7); * I nerer BO much a
< once dreamed, ibai impirt^ and impudeocr
■ i'tself, in such a Cbristiaa stale as Ihis ii, anil
' under such a gracious prince, duist ever llua
' pnblickly have callrd me in question, and thit
■ upon the open stage, he' Tou see the bold-
ness of tli« nian, -and iu ai bad a cause, as, I
thiitk, in this kind ever any man bad.
I shall e>.d all with a nassage out of St. Cj-
prian, (lib. I, ^.3); wheo he, then bisbup sf
Carthage, was bitterly: railed bpcin by a pkcl »■
T«] STATE TRIALS, 13 Charles
■chismadcbs, .his answer irni^ bd!) h'a now
mine : They have railed both bitterly anil f«!i1j
u^oii me, Olid yet ' non opurlet m« paria ciun
* itlb facrrri' it becomes iint me to nDsner
tliem with till; like, either levities or reriitngs,
bnt tospeuk and nrile Ihnt ouU »hioh becomes
Sacerdotem Deij n prii-^t of God. Neither
ihall I in this )^ve tra^ (ihau^h I have been
eitt«aiely vUiGedj t* eillier giuf or passion to
■peak, remcmberiii|> that uf theps;iliiiist, ' Fret
' not thjsrlf, flsc thall tbou be moved to tlo
* evil.' Neither yet by. God's grace sliall the
reproaches of such men ns rhcse, make me
fiiiut or sttiit aside, cither fiuiu tlie riglit way
in matter of practice (they ate St. Cyprian's
Fords again) or ' i certil regull,' froni inc cer-
tain ruJe lit' Faitb. And aince in former times,
Mtoe spared Dot to call the m^ter of the house
.. Beelzeliub, hoiv niuchraote will- they beloM
with them of his household, as it b ia St. Mat-
(heiT. And so bold have tijeee men beeo; but
tljeneit words of our Saviour are, ' Fear them
' not.' I btitobly crave pardon of your lord-
ihips for this toy necessary teneth, anrl give you
^I-h^tylbaiiks for your noble patience, aud
your just ami honourable Con^iure upou theae
men, and yonr unaniuioos dislike iif [hein,tmd
defence of the Church. But hesauseilie busi-
ness luith iocac rtdection opon myself, I shnn
forbear to censure tbeiu, and leave them to
God's mercy, and the tiuj's justice.
On the SOib of June foitaoinic, the Sehtehce
was eiLecutcd, wlien Dr. BastHick', Mr. Prvnn,
and Mr. Barton, were conveyed to the piJIory
ia Iha Palace-yard, Westwinster.
Dr. Ba^tnick and Mr. Qiiitai) Cnt meeting,
they did close one in the utlier's amis three
times, with as much erpretsions of love as
might be, rejoicing that I hey met at such a
C«, upon such au occasion, and that God
so highly honoured them, as to-csll tliem
forth to suffer for his glorious Truth.
Th«D immediately tJier, ]Mr, PVynn came,
the doctor iind Itc saluting each uiber, ai Mr.
bunon and bo did before. ITie doctor tlnn
went up Gist on the ocaiTuld, and his wife ijii-
uediately folloniiig cnnie up to liim, aad sa-
luted each ear with a kiss, and llien his mouih.
Her busliaiid desired her not to be in the least
manner dismayed at his sufferings:
K wliile tliey parted, she using these words
' Fu rem el my dearest, beofguod comfort, I am
■ notbing ditmayed.' Aud then tlic ductor be'
gan to speak tliese words i
Dr. Bash--ick: There itre many that are tin?
day spectators of our itConding here, at ilelin-
2aeats, though not delinquents, we bless God
>r it. I am not coriscinus to myidf »lieieiii
I have committed the least tre^'^nas (to take'
this oatMard shame] eillier a^iist my God, or
my king. Aud I do tlie rather speak it, Uuc
Ku that are now beholders may t.i\£
vt fur ianoceiicy will preserve you in
day OS this is; for vie eoiiw here m the strength
sf our God, who huh tuiglitily lu'ppurtci) ul,:
«nd filled our hearts with greater comfort than
lt»37. — and Ptym,f(ir tewral LibcU. [746
nr shame or contempt can be. The first oc*
nsion of my trouble was by the pretare?, for
s\i\D^ a Book against the I'upe, and the jx>pe
of Canterbury suid I nn>le against him, uud
ihcrcfore questioned me : but if the pri^scs
open to us as formeily tJiey have been,
lid el&tter his kingdom ubuul his ears :
but be ye not deterred by their power, neitlier he
affrighted at our sulferiogs ; let none iletcrmine
to turn from (he ways of tlie Lord, but go on,
light courageously against Go;; aad Mngt^. I
know there he many here ulio bare set many
days apart for our behalf (let the prelates take
if it) and lliey naie sent up strong
prayera to Heaven fur us, \ie feel the strength
and benefit of them nt this time ; I would have
pu to take notice of it, we have felt ibe
■treoglh and benefit of your prayers all along
ibis cause. In a word, so fur I am from base
lear, ut caring for any thiug' ibat they can do,
or (jist upon ine, that had I us much bluod a»
would swell the Thames, I ivuuld aheil it eve;y '
drop in this cause ; therefore be not any of you
'' juraged, bo not daunted at ihcir power ;
- -. labouring to preserve innocency,'and keep
peace witbin,gooninthestreDgthoryour God,
.nd he ivillncier fail you in such a day as this:
s I said before, so I say agnii), had I as many
lives 93 1 have hairs un iny bead, ot drops of
blodd in my veins, I would jiive tbnii all up for -
tills cause. Tliis plot of sending irs to those
remote places, was first consulted and agitated
liv the Jesuits, as 1 can make it plaiuly appear.
0 see what liuies ive ere fallen into, that the
lords mpst sit tu act tlie Jesuits plots ! For ouf
own parts, we one no malice tu the persons of
any of ilie prelates, but would lay our necks
under their feet to do theu i^ood as tliey arc
men, but against tlie usurpation of their pouet,
as [hey are bishops, we do profess outselve»
eoeiTiies till dooms-day.
Mr. Prynn sbakbg the doctor by the hand,
desired liiin that he nt^^it speak a word orttio.
With all my heart, said the doctof. — The cause
(said Mr. Prynn) of my 6tnnjiiij:.!iete, is for
not bringing in mj Ansnir, f^ir which my cause
is taken pio eoi&aia nguiust me. Whnt en-
deavours I -used for the hriiiEing ri) thereof,
that God' and my oun conscience, and my
counsel knows, ivbuse cowardice stands upon
record to uUn^^es. For taiherlhan I uiUhave
my cause a lending cause, to deprive the
subjects of that liberty which I seek to main-
tain, I rattler eipose my penos to a irad-
iog example, to bear tliis punishment :. aad
1 beseech you nil to- lake notice of their
pi-nceedinu in this cause. When I was served
with a su^Kcna iiitij this court, 1 was sbul
u]) close prisoner, that I could hate wo b»-
cess to. counsel, nor udmii^ted peu, ink or
paper to draw up my Answer lif my instruc-
tion's, fur nhich I fee'd ihem twice, though to
no ptvpose, yet when all wus d'ine, my An-
swer would nut be accepted into the court.
though I te.nd^red it upon my oath. 1 appeal
to all the world, IT tins were a legal orjustproi
ceedtrig. Our 'accusatioa is in point of nW
747] STATE TRIAI^, ISCharlesI. i037 — JVowerfinji <^w« Barttriri, Burioi [74»
(but suppusedli) iKaiiist thr preblfs; to cl«ur
(hi« nuw, [ will ff\ e jo'n a little li^ll nliut the
ItinJsiD point ut' libi'l, of nliicli profi-sfiog 1
bive Bometimei bL>eii, and atill profeM nivirll'
to liuve some tnnwli'i]|>e in. Von r<bnil find in
case uf libel, two >tiktuie* : tlic tine in ilie se-
cond of queen Mhit, ihc utber in the levtnlh
of queen Elizi.beih. That in ilie tecniid of
queen Miiry, tlie exireinilf Hiid htiitht of it
Tunaihus, That if aLib<ltcrdjlh goto far and
M liigh Bk til libel ai;siiiit kiiiK or queen by de-
nomiuntiun, tbe height mid citteniiiy mi the
law it, iliat ihey b; no ^ater fine an l>ini than
an huudi«d pounds, i
meat, and uu i.-uiporn1 puiiishmi^iit, except he
dotii refuse lu psy lijj nne; and then to inSict
•ooie puuisboient in lieu of that fine at tlte
inontbi end. Neither waa tliis censure to be
paaaed on him, except it ivere fully proved hy
tKo witoessei, nho were to ]iroduce a ctniti-
cate of tlieir good dcnieiinor lor ihe credit of
their leport, or else cunfrgsed bjr tlie libeller.
Yiiu iIihU god in that slutute 7 Etii. some fui^
iher Rddrtlon to tlie former of 9 Maria;, and that
only in ooint of fine aud punishment and it
muit siill reach at high ns the person of ihe
king or queen. Here this ttitiite dotli set a
line of soot.; the otlier hut 100/. This sett
three months impii^Qnineut, the fiirmiT but
one; so that therein only they ililTcr. But in
cbii tbey boib ngrre, namely at tlie end of bis
iinpriionmeiit to pay his Fine, aud so go free
nithoat any further question ; but ifhe refuse
to pay his hne, then the court i% to inflict srnne
tninishment on him correspondent to Ids line.
Now see the disparity between those tinics of
tbain and ours. A libeller in queen Mary's
time was fined but 100/. ; in queen Eliiabetli's
900^ 1 in queen Mary'i days but a month's im-
prisonment ; io queen Eliisbeih'i three monlhs,
and not so great a fine if they libelled against
kinfi or queen. Forniei^v the greatest fine was
900'., though against king or queen: uow
5,000f., though but against the prelates, and
Chat but supposedly, which Cannot be proved :
Formerly, but three monlhs imprisoniDcnt;
now perpetual imprisonment: Then, upnnp^iy-
iog toe tiae, uo corpoml punishmept vtM to fie
ibDicted ; hut now, iufnmoos puQisbmciit with
the Umb of blood, and all ntlier circtimstances
that may aggravate it. See now what times
we are fallen into, when that libellinE, if it
were so, against prelates only, iliiiU fall jiiglier
tban if it touched kiggs and princes.
Thai which I bate to spcal: of neat, h this i
The Prelates find themselve) exceedingly •(;-
pieved and vexed against what we hnre written
coucerniof the usurpation of their Calling.
where indeed We declare their cell not to be
Jure Dnino, t make no doubt, but there are
fome Intel b^encen or ahetlon,, witiimthe bear-
ing, whom 1 would have well to know and take
notice of what I now saj. I hrre in ihit pljce
make this offer to them. That if I may be ad-
mitted a &ir dispute, on fair temi*, fur my
cause ; that I will maintaia, and du here make ,
tha challeng* against nil the prdstei '
king's doflunions, and agiunai all tlie prdila ia
Chnstindnin, (let tlieia take in the pape.ind
all, to help tliein] tliat tbeir Calling!) nut Jurt
DtTiHO, I^ill speak it again, I make the chal-
lenge nguiiist all the prdairs in lb* kiug'ido-
inininn*, and oil Chrisiendon), tomBiniaiu,that
their callin|[ is not Jarr Dninu. If I liiake it
not good, let me be banged up at the HsII
Gate. — Wbenujion tbe people gave a greai
shuui.
Theneit thing that T ant to speak of, is thii:
ThePrelutis find tbem^lves eiceedingtly sg.
iriered and vexed agniost what I hare writita
in point of law, conceroiug their Wriisand fru-
cess. That tlie seadingfoitbof Writs and Pro-
cess in their own name, is ngaiu^i nil law and
justice, and doth intreocb on his majctty's pi«-
rogatiie rojat, nad ihe subject') liberties. And
here now I make a tecoiid chnlleoge aeaiiM
•II the l^Hyen in the kiiigdoni, in wiy of &i(
dispute, thai I will mainiaiii, the pnJaies sead-
ing foith of Wrils and Process in their mm
names, to he against nil law and justice, snl
ioti-encheth on liis mnjetty's preri^aiive royal,
and subjects liberlj^ Lest it should be forgot-
ten, I speak it again, I here challenge all the
whule Society of the Law, upon a Biir dispuie,
to mnintaiii ih.-il the lending Ibrib at Writs sud
Prncets in the prelates nxn names, to be
against all law and justice, aud iiiirenchtih oa
ifie king's prerogative royal, and the subJKll
liberty. If I be not able to make it ifiod, let
me be put lo the tortnentingcst death tliey C4B
devise.
We praise the latd, we fear none bet God
and tile kiug : Had we req>ected oor Libcrtits,
we had not stood here at this lime : it was &r
thu general good and liberties of you all that «
have now thus far engaged cmr own liberties ia
this cause. For did you know how deeply ibey
have intrenched on your liberiies in point of Po-
pery ; ifyou knew but into what times jouara
cast, it woull miike yuu look about yon : and
jfyou did but see what cbuiitgea and rerolutioni
of persons, cnases and actions, have heen msdi
by one man, jou would more narrowly luak
into your privij^ei,- and see how far your li-
berly did lawfully extend, and ao maiutain it.
I his is the becond time that t have beea
brouglit to tliii place; »hu hath beea die
auihorofit, Iibiiik von all well know : Forihe
* lime, (7 Feb. l'6S8.) if 1 could have hf*
leave„
hicb was then laid to my Cbutgti
as als'i I could have doiM now, ifl might have
been permitted t" apenk ; that book (Histrnf
maslix,*; for which ] suffirred formerly, ttf^
cially for some paiticulir words therein written,
'hich I quQied out of God's Word and uilient
Faihers, for wliirh mitwitlistanding tbeypasiM
ceuhure on m>: ; ti at same Buuk waa twiceli-
i-ensed bv public au'ljority, and tde same wonb
I ilieiijuff.-rc.d for, lliey -re again made use of,
und applied in Ihe same stnse by Heylin, in his
Book hilely printed and dedicated to the kmft
•SmNo. llt,p.5<».
jogle
749] SrATE TRIALS, 13 CiiAStES 1.
tutd no exnpttoDs taken i^oinit them, but an
very well taken.
Dr. Buf virft. And there w another Book uf
his licensed, wherein be mils HSaiilM u* three at
hit ptMSUie, and against the Hartjrn that auf-
lerod in i)uero Mary'i daji, calling tliem Schit-
matical Hereticki ; aod tlieie it anotlicr book of
Pocklingtoa's licensed (Altara ChristiHnum.]
ibej be u Tutl uf lie* as doit be full of fleas ;
bat were the prclses «s open lu ns tu they arc
to them, <tQ would pay them, and tlieir great
master that upholdi tliem, and chstfe them
with DMonous blasphemy.
Mr. Prynn. Yod all at this present lee there
be no degree* of men eiempied from suffering :
Here is a tererenil Divine fur the soul, a Physi-
cian lor the body, DOd a Lawyer for the estate :
I bad ihou^t they would hare let niono their
own Sociely, and not liav* meddled with nnj
oFibem. And the iieit (fur au|lit I kniiw) mny
be a bishop. You see they spare none of what
•odetj or calling soever, none ore exempted
' (hat crow their nwn ends. Gentlemen, look to
^unelvci ; if all the Mircyn that suffered
in qneen Mary's days are accounted nnd
•xUed scbisniitlcil heretics and lactioni fel-
lows* ; what shall we luiik tor ! Yet so they nre
called in a Book lately came tbrth under auLho-
' lity. And such tactious fellows are we, for dis-
coveries H Plot ol Piiperr, Alan, poor Eng-
bmd, whatwiU become ol thee, if tlinu la[<k not
the sooner into thine own priTileges, anil mnin-
taiiiesL not thine own lawful liberty } Christinii
people, I beMe«h you all, iiHod linn, nnd be
ualotis for the chute of God, and liis true reli-
^oo, Uj the tliedding uf your dcarot blood,
othenviw yoa oill bring yatir««Wes, and all
jinir potteriiite, into perpeinal bondage and
Now (be Executinner being come to sear
hini, and cot off hii enrs, Mr. Pryiin spake
these words to him : Coiue, friend, come, imrn
me, cut me, I tear not. 1 have le.-irned to fear
the Fire of Hell, «nd not wlint man can do
my bndy the mnrks of the Lord Jesiis : Wbich
the Eucutionrr perbrmed with eitmordinary
cruelty, beating liit iron twice lo burn one
cheek : aiid cut one of hit enrs lo close, th»t lie
cut off a piece of his rbeek. lie snid, ■ The
< more I am benteu duwn, the more am 1 lift
'op.'
Upon the day for Executioii, Mr. Jitirlm
being hmdght into (lie Palnce-yntd, ui.to a
chamber ibuc -looked into the ynnl, where lie
viewed three pillories there set up : Methinki
(said he) I see M'>uiit CuiTary, wliere tlie three
crotses (one for Cbrisi, and the oiher two fur
the two Tliiei-es) were pitdied ; itid if Christ
were nmnbcreil umontt thierCfi, sbnil n Christian
* The arclihistinp of Canierhuri lieinj; id-
lartneil hy his apiet whnt Mr. I'ryiio said,
iiiored d1e]1^d^ then fciiimi; in the St»r-chiini-
bcr, that lie might be gaeged, and have soiue
farther cenanre preMntly executed upon bim ;
hni that tnotion difl ootniccecd.
l6i^.T-and Frynn,for mtral latelt. [750
(for Christ's cause) think much to be nurabeted
amnng rtiguci, such us ue are condemued tn
bef Suiely,il I bearogue, I am Christ's rogue,
and uo man's. And a little after, lookilig out
at the casement towards the pillury, be aud, I
ne^ no diiference between looking oot of this
square windos and yonder round bole. Poinu
in^ toivards the pillory, he said. It is no matter
of ditTerence lo uii hr^nest man. Aud a hitle
•tter thai, looking sumewliat wishfully upoo hk
wife, to see bow she did take it, she seeined to
bim 10 he something sad; to wdom be thus
spake: Wife, tihy art tbou so M<l ? To whom
she made answer. Sweetheart, I am not sad.
No, sail! lie f See thou be iint, fori would not
hnie tliee to dishonour the day, by ihedding one
tear, or fetching one sigh ; for behold there, for
thy comfort, my triumphant chariot, on which
1 must ride fir the hooour of myLord aud Mas-
ter : and never wrs wedding day so webomo
aod joyful a day as this day ii; and so much the
more,beciiu!e 1 have Mich anublecaptun and
lender, who hath gone before mewith such im-
daunieduess of spirit, that be snitli of himself, I
gave my hnck lo the :>miteTs, my cheekt to tli*
nippers, they plucked off the bair, I hid not my
face from shame and sfitting, for die Loid
God will h<:lp me, tliereGire shall I not be cixt<
founded ; therefore . have I set my flu» like «
flint, nnd 1 know I shall oat be ashamed. At
length being carried toward ilie pillory, be met
Dr. BiisiH'irk nl the foot of the pillory, where
they lovinifjy saluted and embiaced each utiier;
and pnrtiu^ n hute finiii liim, he returned and
most affrciiunately ptnbrnced him the second
lime, being heartily sorry he misted Mr. Prynn,
who WHS mil yet come, before be was ffiat up
to hi^ piliury, which itood alune nc» the Star
Chamber, und nbout half a iionc's cast front
the oilur double f illory,.wliereiii the other tno
stood ; so at all their fncci looked souihnird,
the bricht sun nil the wbiti;, f^r the tpace of two
Lourf, shining upon them. Beiug ready to be
put into the' pilloiy, standing u^n the scaf*
told, he spied Mr. Prynn new come to the pil*
lory, and Dr. Bnstwiclt in tlie piUoly', who tlieo
butied off hia band, und called for a baiidker*
cliief, saying, What ! tli;ill I be lost, or bliall I
be ashamed of a piilorj for Christ, who was not
ashamed of a cross for ine? Tbeu being put into
(lie pillory, lie saiil. Good people, 1 ant brought
hither toiie a spectacle to the wnriil, to aiigelt
and men; and hiiwsoever I stMnd hereto under-
ffi tjie punit.bmeni of a rogue, yet except to he
a faithful scrvnnt to Christ, and a loyai subject
to the king, lie the property rif a nvue, I am no
ro£ue. Hut yet if to be Christ's faijiful servant,
und the king's loyal suhject,de»Fn'eilie punish-
ment ofa rogu^, I glory in it, aud 1 blesa my
God, my conscience is clear, nnd U not stained
«ith the guilt of any such Crimea* I have been
charged with, tlinui:h otherwise I confetsinytelf
to be a man subiertto loany frailties'* nd liiinuii)
inbrmiues. ludred lliat Book inti^ed, " An
Apnliigy for nil Appeal, with sundry Epistle*
uod two Sermon*, for God and tiie king,'*
cliai^ BgMutt me in the lufooaation, I hAv#
Til] STATE TIUALS, ISCh^blesI. i037 .—Proceedmgt againU Battcki, BwUmint
•□d do Kbnowledge (the misprimh^ excepled)
to be intac, kod will hj God » grace never dii»-
clain k whilst I bnve breatb wittiin me, Aficr
■ vrhil^ he having > unsegay in hit hand, a bee
came and pitched on the iiogmy, and heno to
•uok the Aawen, which tie bebrSdin^ and well
t abacrTiug, laid, Do ye not ue this poor bee i
■hBhathliiaiidawtthii vcrj place lo suck iwoet-
ftwm UiCM flnwen; wid cantinl 1 uck laect-
Mau in this vei^ pine e from Chriit? -ilie bee
UckiDi; all thi* ivliile, and «o took ber flight.
Bf aiM b;e, h* ttiok occniioa from tlie ihiBing
M tba lua, to i»y. Yon lee how the tun thines
upon at, hat that thinet ■( ivell upon the eril ai
(be £*Dd, upon tJieJuN and uDJuat, but (hat the
Suu of RighteuiMiett (Jeiua Chriit, who hath
bealing uiMer, hii wiiikb} thiocs upon the souli
«u}d (OaBcieiices nf every true believer only, and
BO doud can lade him fnna tia, to make bim
aUmmcd af ut, no not of our mott shameful suf-
feriai>B for his laln : And vhy shouhl we bo
Mbamed lo sulTef lor hb anke who hath UiSered
liir ut? all our su8ierinf[9 be but fleabitincs to
(hat he endured : lie enilured the' eras* KBd de-
■jiised (he ttnime, and is set on (he right hand
arOod. lie it a most exicllcnt pattern tor tii
to look upon, that treading bis ateps, and tutfer-
init trith him, vre in^y he (;lotified with biin.
And what can ne (iilfrr, nhereio he hath not
gone before us creu in iJke uaot kind i \Va«he
not degraded, when tliey loomfhlly pnt on him
k purple ri>l«, n reed into bis hand, a Ihnmv
crown npon his bend, salutini; him nith, ' Hail
' KingoiUie Jewil' and soditrobed bim a|;atn?
Wai not he deprived when they tmotc the >bep-
. herd, and tlip sheep was seatiered I Wni not
riolence ullered [o'hissacTed person, when he
wa) bufittied and acnurged, h)s hnnda and his
feet pierced, his head pricked with thorns, bis
tide (;m«d with n «pear, ht. 1 Viae not the
orocs more sh:imernl, yea and more painful
' tlinn n pillory? Was not he'srript of all
l>e hnd, wlini he was lefi Mark imkcii upon
the crosE, die soldiers dividing liii gannenu,
and costing Int* upon hit vcsiure i And
was Ite not coulidpd to perpetaal close impri-
sonment in ronn's imaginatton, when his bodr
•rns laid in a tomh, and lite t<>nib sealed, lest
by b'roui^ht deliverance and victory to
(IS we ore mnrc ihan conqueror) through hini
that loved me I Here tbcn «e liaiT an euTelleut
pattern indeed.
One inid unto Mr. Buiton, Christ nill not be
Mhamed of jon ni the last day. He replied,
lie knew wliom he Ind believed, and dial
Christ wai able Co keep ihnt be bail committed
to him Btiain^t tlmt tiiy. One asked liiin how
bt^Ui He said. Never better, I bless God,
whn hdth aocnunlcd me wortliy llius tu suffer.
The Keeper keepiiie olTTbe people from prest-
jng near tl>e pillory; lie tud, Let iliem come
and apore^ot, that tliey may learn to auSer.
The sxine Keeper being oeary, and sittini;
down, asked Mr, Jiurton if Ite were well, mod
had liiai b* of good oomlort. To wlwio be re-
phed. Are yon. «ell> If you ba waU, 1 am
much iii.ore, ntid full of comfort, I bleat God>
Some asked him if the pilloty were not unewj
for hit neck and slmiklera? lie answereJ,
How can Christ's joke be oneaty? This it
Christ's vnke, and he bean tbe bearicr etkd of
ii, add line lighter: and if mineweretoobcavj,
he would heir tiiat too. O good people, ChnU
is a good and tweM niaster, and worth the lof-
fering for I And if the world did but know kit
gnodnest and .huf tasted of hit sweetacH, fttt
wouht come and be his terrantai and did ^le;
bul know what a blessed thing it woe tti bc*f
his juk«, O who wokU not bear it? Tbe
Keeper g<iiog about lo ease the pillur y by Bab-
ting a alooc or a brickbat beta«eD, tir. Uw^
Ion laid, TruuUe noi yuwself, 1 am at very
good ease, and leel no weariness at all : And
espying a young man at Che foot of tlie aliorj,
and p«rceiviiig him to look pale on km, ha
laid. Son, Son, whnt is che.iHtlPr you ktak ■«
!ia!e;P I have as niucb contort oi my heart CMi
nld, and if 1 had need of mot«, I sliouy bare
it. Uue asked bim a wlule after if Ite would
drink some ir^ta vUir. To wlioiu lie relied,
tlinC lio needed it not : for I hava, taid be, (b^-
iKghit hand opon his br«nM}lbe4.nie Water of
Ijle, whidi liken >vell dmh tpiing ap tocienwl
lile, pRusine a while he said wiili n inoK
clK-arAil and grave cnunlraa nee, 1 was nner
in such a pulpit before, hut little do ye know
(speaking to them ihat stood abovt hini) what
fruits God is able To produce fnm this dry .
tree. They looking stcdlaatlT upon him, he
■did, Mark my wards, and remanber ibev
well: I saj, Little do yon kua» nhiit fruitt
God i) able to proHoce from this diy tree; I
■ay, remember it wt 11, for this day will never be
forgotten ; and thn>u)[li these lioles (poinling la
(ho pillory] Gsd can bring liglK to bit Chilfch.
The Keeper ffimx nbout again to ai«id the '
pillory, be said, I)o not uouUe yourself so
much : Bat indeed oe are the tronblera of die
world. By and bye, sooic of tlieia oOering
hint A cup of wine; lie thanked ihem, telling
them he liad the ariue of conaalaOoa within
him, and thejnysaf ChriM in posaessitM, which
the world aould not tnkc anay from bim, net-
tber couU it giie them unto hiwi. Thee he
looked lowards tbe other pilloty, and oiabing
a sign with his band, cLcarfully called to Dr.
BRSLHtck, and Mr. Prynn, asking tbem how
they did? Who answered, Very^ well. A
■> Oman said obU him, Sir,CTery Cbrislian is Mt
worthy of tbii honour, which the Uird bathoBK
upon you this day. Alas, (said he) who ia
wortliy of tiie leaal mercy i But il is his fraci-
ous favour and free lift, to actunnt us worthy
in the behalf of Chntc lo setTer any thing for
his sake? Anntber woman said. There, are
many I luod reds which by God's astisttuice would
willin^y suder for the cause you suffer for this
day. To whiini he said, Clirist exalts all of
us ihnt are ready lo sailer a&ietioDs lor hia
name with meekBota and pouence ; but Christ's
military diacipline ia the me of hit s^itael
7S3} STATE TRIALS, 18 Cnablu I. IGil.—tuui Pry>m,fiir Moer^ Ubtlr, [754
and we have in a nuQncT lost the power of
ndigion, in iioi ilcnjiiig our!>elve^ mid fdllow-
iiilC- Christ as wtll in snlTering ^i ia dniii;.
Alter a while Mr. Uurtuii rallmg Ui oite of Ins
friends fur a handl^erchief, leturiieil JL iigain,
tajring, It in hnt, liut Cliritt burc tlie burden in
■he heat uf the daj; let ua alAUj'i L-iLour to
approve oursclte* to God in all cliiu)pi, aiid
Ktu Christ, fur tl^erein stiuiiU our hup(iine(a,
tnevf It wliut wiUin cliis world.
One Mid to Mr. Durtan, The Lord ttrengtlicD
jou. To nboni lie replied, I iLank jou, nn4 I
dIch his iiaiot' lie stn-iiglieus me. lor tliounli
I •tu a poor udTuI wicLch, yet I Lieu G'idjli>r
in; iiiuoceot cautcieoce in anj such crime ii*
I* laid UKnInist me; nnd were iiuc my c^um!
|aod, and my conacieuce Muod, [ cduld not
enjoy so niudi uiispeak&ble comturt in this my
sufferihg, ai 1 do, I hlesi my Und. Mn. Biir- ^
ton Mndiiig cumaiendaclon to Iiiiu by a friend:
tJe returned tlie like tii ber, uiyii)|, Coaimetid
my lore lu loy Hlfe, and tell her I um heartily
cliearful, and bid ber rciaenilier wliat I *aiil
to tier in tlie morning; DHmely, llmttheshuukl
not btemish the glory itftliii day with one tear,
at so much as (iiic i>^h. She returned answer.
That slie wHt gUd to bear him Xhchciirful, and
tbat ibe was uiotc chearful uf tlijs day thaii nf
hef wrddin^-day. This answer exceedingly re-
joiced his iii^Brt, wild thereupon blesned God
fiir her, and siid of her, site is but a youny
■oldie»of Cbriat'ii, but the hath already endured
many a sbarphrunl, but the Iiord will strengthen
tier unto the end: And lie having on a pair of
new gloves, shewed them to hii friends there-
about him, saying, JUy wife yeetenlay of her
own accord bought me tliesa wedding gloves,
for this is mj woddiug-daVr
One said to liiv, oir, by this sennon (vour
wSeriug) God may convert many niito nim.
(Ee answered, G*d IB able to do it indeed. And
tbeo be called agiiin to Dr. Bastnick and Hr.
Frjnn, asking tK«m bow they did ; who an-
. iwered as before. Some ijiealiiiig tohim con-
cmiiiig thut tuiferins of shedding his Mood :
he answered, What is my blood to Christ's
blood ? Christ's blood is a purging blood, but
nunc is corrupted and pjdluled witii sin. One
friend asked auotber standinjt near Mr. Bur-
ton, if tliere bliould tie any thing more done
nnio him ! Mr. Qurtun over-henring him an-
swered. Why should there he xo more done f
For what Gud will have done must be accont-
|)lisbed. One desired Mr. Burton to be of good
cheer : he ihus replied. If jou knew my cheer,
vou wuuld be glad to be partaker with oie ;
ibr I am ant alone, neither hath God lefl me
alone in ail my sulTerini^ and close . imprison-
ment since first I was apprehended. The
bnlberd-men .slandiog round nbout, nne a(
tl)em bad an old rusly haJberil, the iron
, whereof was tacked tn tlie staff wiih an old
crooked nail ; vbicb nne Dheerving, nnd say-
ing, What an old rusty halberd istliatJ Mr,
Button said. This seems to me to he one of
those halberds which accompanied Judas when
^ nent to betnj'sad apprebend bis master.
f UL. iir. '
Mr. Burton said again, I ani persuaded that
Christ my Aiiiocate is now ploidinginy cause
at ilie Fiith('r*s righl-liuutf, nnd « ill Judge tny
fiiiiisi;, tlioi^h none he fuund liere lo plend it,
anil will brmg forth my riifhieommiss ns the
li(^t at uoun-dny, am) clenr my itinoceury in
due lime. A friend nsked Mr. Uurtnii, if he
wudld hare been witlwut tlijs purticuliir sulTcr-
i|igi To whom lie said, fio, nut li<r a world.
Morcoveri be said lluit his conscience in ths
disctiurge ot'lils mlnisteriul duty aOd function,
in admoiibliing his people 1o benare of the
creeping in of popery and supcrsiition, exhort-
ing llieu) to titicb cluse untn Gud anil the klii{
in duties of obedience, was tbnt wliich'lirat oo
casinurd hii Bufleiiu|>s ; and lie said, As fur this
lentil I have preached, I am teady lu seut it
with my blood, for this is my crown both htve
and berenllrr. Iain jealous nfOnd's lu.nour,
■ad tlie Lord keep us that He may do nmbin^
that may ditbnnuur him, elthir in doing or mf-
fering; God cii) bring iigbt out of daikuesi^
and glorv out of shame : nud wliat shall I suy
more; f am like a bottle which Is so full iif
so full of Juy, tliai I am not able to express it.
In conclusion, scimetold liimof the aiiprnach
of the Eiecutioner, and prayed God to
strengthen him. He said, I trust he will, why
sliouid 1 I'eai to follow my master Christ, who
said, ' I gave my back to the Muiters, and my
cl^k to the nippers that plucked off my hair
I Iiid mil Diy lace from sliumeaiid spittiiie, fc
tbe Lord Gi>d will help me, iherrlore ^f^ll
a Hint, I
When the Executioner bad cut off one ear,
which he liad cut deep and close lo the head
in an extmordinary Cruel manner; yet he never
once moved and fiirred for ii, though he had
cut an artery, so as .the blood ran streaming
down upon the scntfold, which divert persons
staoding about llie pillory seeinv, dipped tlieir
bnudkercliiefs in, as n ihiuf! moit precious, tbe
people giving s mournful shout, and crying for
the surgeon, whom the croud and other impe-
diments for n lime kept off, so ihat he' could
not come to Stop tlie blood ; he all the whi!«
bdd up bis linnds, said. Be content, it is well,
blciised he God. The other ear being out no
less deep, be ihen was freed from the pillory,
and cnme down, where tiie surgeon waiting for
him, prcseully applied remedy for stopping tbe
blood ufler a lari-e effiision thereof, yet for all
this he fainled not, in the least manner, tiiouch
tlirouEb expence of much blood he waxed pale.
And on* offering liim ii little wormwaod-uBter,
he said, It needs not ; yet through importunity
he only tasted of it, and no more, saying,
Ilis master, Christ, wnn not so well used, for
they gave him gall and vinegar, but you ^ive
me good strong water lo refresh nte, blessrd he
God. His head being bound up, two (riencls
led him away to an liouse provided liim ia
King-street, where beiiig set down, and hid
to speak Uitle, yet he saKl- after a patise, 'nil
a c
755] STATE TRIALS, 1) Charles I. 1837.
» too hot to hold long : Nnw Imit the? in the
ntoiij, or Ills ivife siuiuld mistake, ind ihiai. tie
spake ul tiimselt conccnucg hU pHiD, he said,
1 speak not this of myself.; lur ibut Hhich I
have suFTcied is nothing lo tliat niy Saviuur
differed for n>e, nbo had his hands and feet
□ailed to the cross : and lying still a wtule, he
took Mr. I'ryim's sufferings much lo heart, and
asked the pf ojile Iiuit' he did, for, said he, liii
•ufferrnts have been ereal. He asked nlao how
Dr. Sastvtick did, viith mnch compassioTi and
giietj tliHt himself (hem; the first ihui iras exe-
cuted) coiiid not stay to see bow they two
fired ufier liim.
Suoii after the cKeeuCioii of tbe Sentence,
they were sererBlly sent prisoners to the res-
pective castles of Carnaivon, Launcf-stoii in
Comwal, and Lincohter, and ifterourds on
(he !Ttb of August following, it was ordered
by tbs king and council, H^at Dr. fiaitwick
should be removed lo the castle or ibrt of llie
Isles of Scilly, Mr. Burron tn theMeofGticm-
■ey, and Mr. I'ryiin tu wliicli of the two ch6-
tles of tbe Isle of Jersey the ^ovemnt. should
think fit; and that none be idiiiit^fd tu hate
conference with them, or to have access to
them, but whom tlie captains of the said cnstlcg
or tl,e:r deputies should nppojnr ; they not to
be allowed ptn, paper, oi ink, mir niiy boiiks,
but the BiLle and Comraon-Prajer bi.nk, and
Other bouksordeToii'in,icoiisoDHnt to tbe doc-
trine and discipliue of the Church ofEngliiHl
no letters or writings to be hrought them, bu
what sh.ill he opened, nor any to be sent fron
them : thnt the wives of Bastwjck and Burtij
should not land or nhide in any of the said
Islandi, and it they did, the^ should l>e detained
in prison till farther order Iroin ihe hoard; and
the C'lndociors of the said three prisoners,
nther by sea or land, (o iuffer none hui ihem-
Mlvrs tn epeak to them in their passage. Ac-
cordingly they were sent lo the said thrw
Islande, where they lemained lill the begiimini
of the Long Parliament 1641, nlien upon tbiii
respective peiitinns ihey "ere sent for up, dis-
charged and restored. Tbeir Petitions were u
To the Honourable tbe Knii^hts, Citizens, and
BurgesKsof the Cr<m>iioiisil»iue of Parlia-
ment i the humble Petition of Willou
Pryni), late Exile and clu^e Prisoner in
Xo}
any volunt.iry nr apparent nffence sgni
laws of thi' realm, (lo which lie ever siudied to
confiirm himself) through the mallcioQs prac-
tices nnil perstcutiuns of some Prelates and
Churcb-men, (especially the novr archbiahnp of
Canterbury, i.td Peter Heylin, doi
nity) wliii«< Errors and Innmatinns, contrary
to the doctrine and discipline of the Church uf
England, and oxiiHv;<gancie» in the lligli Coro-
mission, and ritlier ecclesiastical courts, your
' Petitioner liir his own relief being there un-
justly pro#«cuied, (had to bis weak po<*er op-
—Pneeedingt agahut BattKick, SurtoK, [756
panged) hath within eight yean last past, u»>
dri^one two heavy Censnns in the Star-Chnn-
ber Court.
The first upon an Information there ei1]i-
bited against your Petitioner, by Mr. N'ly de-
ceased, then Attorney Genentl, for tome mis-
construed pqsanges, rnoffensrve in tliemselvei,
aod in your petitioaer's troe imeniioii, being
lor the most part ihe words of otter apprortd
-"' — " iprisedio a book, styled IJiifrio-
ten by the petitioner, agsinttcoia-
mon interludes, and licensed for the preis by
Mr. Thomas Buckner, bousbold chaplam to Ijit
then archbishop of Canterbury, anthotized by
the state to license books, and by him txaclly
perused, and approved both in the writttn and
printed ci<py, before its publication, si>d so
confessed ihe Information ; for "which auth»-
rized Book and Passages, your petitioner, be-
fore tbe hearing of tbe canse, was not only im-
prisnncd in tbe Toner of London, wilhoui bail
or mainprise, for a whule year's space, (tenied
access to his counsel, convenient lifne to exa-
mine Witnesses, and make Breriats to initmcl
his counsel (the information being general; and
recitiog no particalar clauses of the Book ex-
cepted agalntt) the only means of his Defenta
diegally suppressed, some of his tminsel luat-
pered with to make no justification, cnoiruy
to your petitioner's instrnctions and de»te,
whereby his cause was miscarried ; but also at
tbe bearing, by feason of tho se maliciifts and
perverse glossy on the said Passages, wliich
the said Heylin had cnllect'ed and oreseoied to
hii majesty's learned counse-l, wtn repealed
hit instructions only, your petitioner was Gaed
3,0Q0f. V> his mMpsiy, expelled the Uniienily
of Oxford, and Lincoln Vlnn^ degraded fttm
bis profession of the law, w herein he ntier
offended, set in tlie pillory in the Patare- Yard
at Westminster, where he lost one of liis can,
and two days after on the pillory in Chcapside,
where he tost the other ear: and bad hn said
licensed Books thete publicly homt before his
face, 'by tbe hanctman, in a mo^t dtsgraceful
manner; and adjudged after to remain a pti-
son>r during bis life.
1'hat »ker the said Centtire, to defame aad
injure your ^etitionertha more, ha was charged
wrongmlly m the Decree, as censured for per-
jury, (though not taxed for it by the court)
and between bis sufferings in the pjllnry, tbe
books of his stndy (tw^ce turvcyeil, and re-
stored to him by order from the lords) belife
any fine estreated, by a warrant ont of the b^h
commission, signed by the said Arehbishop sad
others, were seized on hy Cross a messeiigir,
who carried tliem to his bouse ; with nmcb
warrant your petitioner charging the said areb-
bi>hop upon occasion, in the open eoDit of
Star-Chamber; he there publiclydisavoWtd lb*
same (though your peritioner can yet prodoct
it under hb own Iiand) promising witnat, that
the books should be restored forthwith ; which
notwithstanding wer« all still detained by hn
means, till they were extended and soM fcr
your patitioiier's fine i who tbonly ifler, by ••
,
T57] SrjCTETBlALS, ISChahluI. 1637.— mdPryim,Jbr$eferalLibeU. [758
«rder-out of the wt4 court teot to tbe Tower
to be executed, wasiheresliut up close pmoner.
and Dr. RmvM jentthilhcriiiMsrclihii cham-
ber fiinhe pniii(ihlet,wLicbihesaid Brchbiiiliup
would nronglulljr have fathered upnn your peti-
tioner, «ih<ise rnentjs have been uujuitlj prose-
cuted ID tbe eicbequer, aod etsewliere, luudij
ytMfS, for his fine aJbresaid.
And jour Petitiouer further stiih, that about
Easier itm tliree jeara, during hia ImpriMiii-
ineDl ill the Ti»>er, l|y uieant of the snidarcij-
biihop, a net ialbiiuutioD wai exhibited in [be
said court ogniost jour pclitinner, and otheii,
with ctrtala Booki thereto aiinsied ; deujing
tlie prclntes jurisdiction over oilier ininiaters,
to be Jurt DiTino. Chaining them with many
■errors aud laDovatioDB in religiuu, usurpulon
upon hit niujestj's prerogative, and uitjecti
liberty, abuses, and ntornani, m tlie high
comuiission, and other ecclesiastical courts,
supprewiag preaching, and painlul ininiiters
wiihout a cauve; licenung Po{Msh, Aruiiiiiiin,
_ Hod other erroneous booLi ngainstthe Sabbath;
' aelting up Altars, Images, and Crucifixes j re-
IBOving and rtiiliiu-in Commuuion TaUes, Mid
boning down to tbeui, altering ihe Book of
' CoDiiBOQ Prayer, thebooks far the Gunpow-
der-Treason, and late Fast, in some material
pasraees in ^vour of Popery and Papiiti.
Which things, (thougti very notorious, and oft
complained luaintt by this honourable house,
IB farmer and luEe purliaineiitB) were yet re-
puted scandalous. And though neither ofihe
■aid Booki was particularly chaiged on your
petitioner, in tbe said Jaiunnalion, nnr any
witness produced to proTe him either author or
disposer of any of them; yrt by denying ynur
petilJuucr liberty to draw up his own Answer,
(fhou^ once abarriiter at law) when as his
asnii>ned counsel refused to da it, by close im -
|irjsuDiiig your petitioner, and his strvanl, by
debarring him pen, ink, and paper, whereby id
answer, or instruct his counsel ; searching bis
chamber, and taking away pari of his Answer
there foand ; denyiog him access to his counsel,
and confcreDce with hisco-drfendanis, even at
counsel, though jointly charged with him ; re-
jecting tbe Crus>-bill eiliibitcd by him for his
de&Bce ; thrfatcoing master Holt, one of your
petiiionec's ascjgned counsel, sent by the then
Lord Keeiier to the Tower, to draw up your
petitioners Antwer, and conunandiug him not
to s^n it, after it was engfosscd, whereupon he
refused to subscribe it, contrary to his proinise
to your petitioner ; and by retiisina to accept
jour petitioner's answers to tlie said informa-
tion, signed wiib his own, and vaster Tomlins,
the otter of his counsel's bands, though ten-
Kthe
tmring; (he said information, for default of
AiMwer (though two Answers were thereto ten-
dered by your petilioner) was taken pro con-
^ssa against your petitioner, and he thereupuo
fined ifflOOl. lo bu Diajeily, piUoried, stigRia-
tiwd ^«n both cheeks, mutdated. and disaiem-
Wrcdf^ofc ft niMt bubanat manner, ud cba
smalJ remainder of his eari, left after his first
execution, cut nSf, to the buuud nf his hearing,
aiid life ; and adjudged to perpeiunl clo>e im-
Eri^nnicnt in ihe gaol of Caniarvun cas'le ia
rorth-Wales, a injsty dog-hole, tar rtmota
from your peiitioiier's friends. Which Sen-
tence whs unduly drawn up and executed upon
your P*tiiionfr, a* hb Attorney's Clerk in-
furmrd, before it was entered into the book, or
your petitioner could get any copy of it, to ex-
cept against tlie same, as be hnd just cause.
TliHt immediately after the Kxccution of ill*
same Sentence, vonr petitioner sent to ilie said
Archbishop to desire nim to release or bail his
servant (who was detained close prisoner for ten
weeks space in the messenger's bands, and oft
examined and solicited, by fair promises aud
threatcnings, causelessly to accuse your peti-
tioner, against whom they wonted evidence)
tlyt ko he might attend him during his sores,
which tbe said Archbishop out of his grace and
charily utterly refused ; sayine that he iutended
to proceed againit his said servant in the HiKh
Commission, where he hath ever since vexed,
censured, and banded him from prison to prison,
only tor refusing to accuse and betray your pe-
titioner.
That after the-said heavy Sentence, ynur pe-
titioner by an order in tht said court (by way
of addition to the said Censure) was inhibited
the use of pen, ink, and paper, and ait book* ;
except the Bible, and the Book of Caramon
Prayer, and siime few booki for private devo-
tion : and before his wounds were perfectly
cured, he was by order removed from the Towr
to Cainnrvou ; and some of his friends in Cbei^
ter, who visited him iberc in his passage, in tha
presence of his conductors, who bad no order to
restrain any person fnim resorting to him,wer«
for this very cause sent for by a messenur, to
appear befu're tbe lords of tbe privy council, and
'tewiseciied into tbe High Commission at York,
'here they were imprisoned and fined, "to tbe
iiin of their ettnte>, and injoincd to make m
pulilick recantation m the cathedral church, end
"• theTown-hallofChester: The said commi*-
iners fiirtlier decretiiig, that three pictures of
ur Petitioner found iot'bester,sbouldbe pub-
iickly burnt at ilie High Cross there, which wa*
'' me accordingly.
That your Petitioner, since his said Sentence,
bath been publickly reviled at, and libelled
i^aiiist, boiD by the High Commiss
lished by tlie Archbishop's privity or command;
and that sundry of his friends houses, studies,
books, and writings have been violtnlly broken
up, masacked and taken awny^ and tliemsflvet
prosecuted in the High Commission, out of lutt-
iice, for the relation they had to your Petitioner.
That nfterynur Petitioner had continued ,o;ne
ten weriiB splice close prisoner in Curnarvon, he
was, about three years since, by a warrant from
the lords of the council, made in tbe summer
TVMMU, (lo nhicb tbe nid Atdibiiliop's band
759] STATE TRIAI^, 13 Charles!. iGSI.—Procfedingt againit Btattokk. Burtm.lTiia
waifiritsubjcribed) ordered hj way. of exile, to
be mibarkeil al)d transputled with all privacy
into one ot* the ensiles in ihu isle of Jersey, aiill
'his cuiiductcira Uiereby cliurged not to ndniit
■iiy person w hnlsoever, hut tliemaelves only, to
ipcHk with y.iur Pelitinncr in his pus^uge ;
Whereupon, nfter wine injuries there i«ceiveil
by Mr. Griffith, the Itias') mturncy in those
part!, who endeacoured to seife U[jon the forni-
tiire i>l' bis clminbtr lor his oivii use, your Pe-
titioner was imhiirlied anuutg papitti, in a
bruised Ehipwrecked vessel, lull of leAs, and
■ftcr Iburteen weeks vnyuge in ilie ninter sea'
■on, through dangerous siocins and seas, which
spuiteil must of his stuff uiiii bedding, nnd threat'
cniu^ often shipwreck tfi hiiu, he arrived at the
■aid isle, and was conveyed close prisoner iiito
niuuut Orgalile caail* tliiire, wlicre the I.ieute'
nant Guvemiir, by'aiiutlierentrn-judiciBl order,
to which the snid Archbiabup's name was first,
was jirdered tn keep your Peiitianer close pri-
(oner in a chamber, sufltr none butliis keepers
(o speak Hilli him, to intercept all letters to
Mm; to permit bini neither pen, ink, noru:iper,
either to write to his friends fur necessarits'or
to petition for relief, Rrnl ti permit hini no book
but the Bible, and xhose ulore-namcd books,
without giving any order for his diet there : sn
tliiit; buiiig depriveil of his calling and estate,
'•rangers, remote from all his frlei ids, denied nil
kddreSk tu tiiin by persijn or l(tLcr«, he lad cer-
tamly perished in hii nhfio'-t iliree yrnn close
imprisonrDrut there, had nut tW eiiriiorrfinary
providei]ce and goi>di)esi of God, which Ite shnll
ever adore, and tli« noble chiirity nf those under
whose tusiody he did remain, furnished him
with such diet and nccessnrie5,«s preserved him
both in health und lite, in this his close impri-
'sonmeot and exile. •
•■ May it therefore plense this honijuralitelionse,
to take these jroiir Petitioner's ahiiuat eight
years trugical gnt'vances, of oew and dangeroi
example, into your most sad and jnst cunside
atiaiis, tJiat so they may nut became preredihts
to the prejudice of posterity; to ftruiit him li
berty to leud for and examine alt neoesMirj
witnesses; to order all clerk*, re^iisters, uniL
other olticers of tbeSlar Chamber, or elsewhere,
fpeedily and freely lo grant him llie copies of
'«ucbOrdcr?^,Decrees,andWritinKS,a9hu cause
■hall require, lo release Itim upon bail (bein^
DOW but a prisoner only upon an extra-judicial
order uf the lords, and not by virtue uf any Sen-
tence or Decree in court) to grant him liberty
tii plead and prosecute his own cause, since
counsel lutli BO often fitlled him, and to give
Urn such satisfaction and relief as the justice
and equity of bis cause shall merit. And your
Petiliuner shall ever proy for your safeties.
WiL
It PavNi
To the Honnuiable the Kaighti, Citiieus, and
Bui^FSses of the Commons House of Por-
liameut ; The humble Pt'tition uf John
Bastwicc, Doctor in Phj-sick, laielv reiaiu'
ed close Piitaaec tad £xUe, in the Island of
Scilly ;
Most humbly sheweth ; Tlini your PelinanM
having about six years since set out a Book in
Latin, called ' Elenclius Kelieionis Papiitioe,'
vith mi addition tliereunio, called ' Flagellum
Pontificis, et Episcoporum Latialium;' being
iheriiuiitu provoked by one Kichard Short, a
Papist that maintained the Pope's Swprrmatij,
mas', and papal lU-lijiinn: Inwliichbo^
irPetiiioner^lbr preventing fltlinisuiierpreta-
I of his pious and good intenti'ius tbernQ)
hii Epistle i<i the Rbader, fully dedared
himself. That your Fetitiouer meant nothing
aguiost such bishops na acknowledged their uit-
thority froui kings and emperors ; yet, because
your petitioner (ibe better to she* the papal
iiitiun over other princes) therein only
itulned by way of arKumeni (as other anbv^
doi writers ol that subject have dune) a parity of
the said bishop of Uuine, Or all other bishops
or presbyters, by the word of God, denying his .
ana tlieir Supremacy over other ministera to be
by the ditine institution ;
Thereupon u pursuivant, by authority frm
the High Comniissbn Court, came into ;oiir
Petitioiier's ho jse at Colchester in Essct, ii) Us
absence, and the said pursuivant, assisted with
ibe then bailiHs and constables of Colchester,
aforeiaiil, ransacked his said house, logetliet
with his chests aijd trunks, and with great lio*
lence broke open your petitioner's study, which
was in his apothecary's house, and took aiid
carried away divers of your petitioner's bookl,
wrilio^ letters, and what else the punuiviat
pleased, nithoiit making of restitution ofibaa
^ud thi-n your petitioner i«as prosecuted Id
the said High Commission court, prircip-.dly for
his suid Bnok ; where alter a long and cha^t-
able prosecution, he was the 12ih of Fefatnary
1634, finwl 1,0(J0/. to ilie king, eioinmutiicat-
ed, debarred to practise physick, tlie chieftw
means of his liveliliund; liis said Bjok ordered
to be burnt; that he sliould pay costs of suit,
and be impri-^oned till be should make a lU-
cant;itioii. 'Hie which henvy Censure wai
only for ihe said book.'wlierein your petitwner
maintained tlic pieri^tive uf a kinc agaioit
tlie papacy. Whereas one Thomas Chawntj,
of Essei, 'lately rfrote a Book in yaintrnanc*
of the papal rebgion, and in dewnce of the
church ot Rome, and avers it to be ■ tnie
church J the which boi>k is dedicated to ll>e
archbi;bup of Canterbury, and was and is palr<>-
nixed aod defended by the said arcbbisbop, and
the said Chawney never troubled for it. After
which censure declared as aforesaid, all the bi-
shops that were then present, dented openly
that they held, their jurisdiction from '•'•?■!
jesty ; and aSnned, that they had it from God
only. And the archbishop of Canterbury,
among other erroneous sayings uttered by hin",
maintained the said Chawiiev's book; and
maintained that Ihe cburch of Rome was a tna
church, and that it erred not in fundamentals;
And he, ani^ other the said bishops, *^'*^
famed the holy scriptures, and abuaed '***?*?■
Mastar Calvin. In regani.wberedf, wo W
7<il] STATE TRIALS, 13 Cn-AiiLt* I. IGil.—md pTym,for levered LOch. [7M
pariih chnrcb
the riodicating of your petitioner's innocency
iu tlie matten for which be wni most unjuitly
MDsureil, ma afornaid, your petitioner publislted
in (jriut another book in Ladn, intitted, ■ Apo-
' logeticu* ad PrKsules Anj^licanos,' expressing
(helmlhof hiiProceeilings, aiidspet^litsof hii
(Bid CeaniT«. For vv^icli lust intutiontd boot,
mui bit book calird the ' Licanj,' not Then in
pfint, an lubrmauon was aihibitcd against
nim ant olbers^in the Star-Chitmber, to which
joBT PetitiQHer'B Answer bein| drawn and ra-
tn»se<l, was ooly subscribed by hiniulf, be-
CBOse he could ^et no counsel to set thair hands
10 it ; soar Petlliaiier tendered ihe said An-
swer, fint at the Star-Chamlier Office, and at-
Ur iu open court at Ifae Sur-Cl lumber bar, bat
it would not be accepted for want of counsellors
baoik to it : contruy to fbtmer pi«ced>Dli.
But Ihe court of Stw^hamb«r took the
•aid Inforaation pro eoHfeue, and censured
your Patitio&er 5,0001. fine to ihe kin^;, to
■tand in the pillory, and to lose both his ears,
and X» be dose prisoner iu I^uncesion Cosrle
ia Cornwai. All which hsth'bees executed
. upoD him with great exiremiiy, to the peril uf
lus lifa. After all nhich ci:lremity, your Peti-
tioner (by what order he knowcth nut, it being
no part of his Ceinore in Star-Chtmbec) nns
irmasported from the said Cattle to tlie ijland
of Scilly, a place so barren that it affords not
Mdioary neceiaariet: where he bath been in clbse
durance for three years nr more, and not suffered
to haie any of his friends come at him, his very
wife bein^ probituied, by the lords □■' the coun-
cil's order, under psin uf iiopriBuiinient, not to
•et ber foot upon any part of the said island to
en'iuire of his welbre. Sii tliat your petitioner
hath been eniled from his wife and diieri sinntl
cbildrea three yean and mnre; besides the
great atraita and miseries wbiL-h he hath sustain-
ed during the said tinge. All which is cnntmry
to tha law of God and man, and the liberties
of a free subject ; and tu tl>e utter undoin| uf
your petitioner, bis wife, and children.
May it therefore please this honourable as-
■emUy, to take these pn^ng grievances of
joor Petitioner into ynni cons ifle rations, and to
afford tiira such relief therein, ns in your grnve
wiadomt shalj seem consonant to justice and
«]aity; and to uiiign him for counsel, Mr.
Atkins, Mr. Ludbor», Mr. Tomlins, Mr. Gor-
4lan, fuid Mr. Randal, to assijthim in tliia hit
complaint; and to order that your petitioner
nay take out gratis such cnpie* of the said
Censures, Wan-ants, and Urders, and other the
ptoreedingk in the said sevenil courts, d» sIihII
or may any way concern this his sad, yel most
'just complaint, with warrant, from this honour-
able house, 10 bring in his witness.
And your Petitioiier, as in duty bound, kball
•rer pray for your prosperities. J. Ba^iwick.
Tha humUe Petition of Hekbt Biktoh, late
Evile, nnd ckne Prisoner iu Coslte-Comet,
in the U\t of Guernsey,
In all humbleness slieweth; That whereat
jour pctiiiaoer, on Ute 9th Jim. 1C36, did
preach two Sermoni in I
in St. Matthew Friday-alien, lajiiuuh, nir lam
which he was, in December then nexx Ibilowing,
summoned to appear before Dr. Duck, one of.
the Commissioners for causes ecclesiastical, at
Chiswick in the eonnty of Middlesex : wbera
(with the register of the Hii^h Coiamiasioa
court) ihe said Dr. Duck tendered to the peti-
tioner the oath v cffick/, tn answer to certain
'articles there presented ; Wliich oath the Peti-
tioner refusing f> take, did then and there ap-
peal from the said court unto the king's ma-
jesty ; which appeal the said Or. Duck did ad*
mil, and the said register, by Dr. Duck's direc-
tion, did then und there enter i]i writing.
Notwkhstanding whicHsaid Appeal, a special
High Commission cunrt was shortly aiW called
at London, consisting offouror five iloctor!);
where the said Commissioners proceeded ille-
gally to suspend the petitioi^er in liis absence ;
fay means whereof, as of the ihreatcninea of tlie
said Comi^iissioners, he was iofurced to keep hia
house, uutil a sageailt at arms, with diren ptnt-
suii-anta, uiid other nmied ofKcers,''assi)te(l by
alderman Abell, then sheriff of Londiio, beset
the petitioner's house at eleven u'dock nl night,
and tiolenily broke open his doors with' iron,
crows. Bud the like, 'and surprised him in hit
house; be makiiij; uo. resistance at all. .Where
tiafinu Brst searched his study, and taken away '
such books as they pleased, t)i«y carried your
petitioner to prison ; whence, the nest day, be-
ing the 2nd of Fehrunry, hy a pretended order
from llie lords of the council, he was conveyed
to the Flaet, and lliere kept close prisoner.
During wliicli imprisonment, an Informatlnn
waa exhibited agHinat the petitioner and others,
ill hismnjesiy's court of Star-Cliamber; nhere-
hy lie was charged, tafcr alia, with the publisli.
iiigofa certain Book, contuiiiii^, "An Apolo-
gy for nn Appeal," with the said two aermoni,
iiiliiled, " Uod and the kii^." Wherein he
taught Bubjecta to yield all manner uf due
ob^ienceto their lawful king, and reproved all
lawless innovations in religion, &c. Which In-
formation the petitioner upon his oath under
tlie hand ofM. Holt btiiig tlieo nf hb counsel,
nssigiied by speci.ll order from the snid court,
did put in his Answer wherein he alledged such
things only as bis said counsel conceived to be
material, ond ((criinent to his just defence in
, publishing thesnid Book ; but denied alt oilier
metiers in the said inforrantion contained.
Which snid Answer being admitted and receiv-
ed iu court, the petitioner (being then -a close
ffisoner) not only atieoded the exhibiting of
nterrogatories, according to the custom of
that couit, but withal, after sc)me universal
delay, did write unto the king's Attoniey* to
hasten tbcm ; but before the Examiner came,.
the petitioner heard that his said Answer wa»
referred to sir John Bramston, ki. L. C. Justice
of the KiueVBench, sir John Fincb, then chief
Justice of theCommon Pleas, and was bytliein
wholly expunged as impertinent and scanda-
lous, save only the not Guilty. And the peti-
tioner understanding tb* Aawtc be was ta
763] STATE THIALS, 13 Charles I. Ifili?.
nake to the loiet¥n(Bliirie9WBi to be rMkansd
:r tl>e Inierro^itories :
ms B. part of liii Answer admitted in cuurt, but
nftciwMnis expunged M impertinent nud iican-
dalous, *s ufiimaid: so as if lie sliould llifn
have uuweied the Inlerrogatorin, he ihould
tbErebj linve atseDted la the said act of ilic
uid .luHurt, anil »a (lie condcmnnlion of liii
cause bcbre the lieariiig; wherebjr be sbuuld
have contradicted hii fanaer oath, tliat his said
Acswer wai a true Answer; and so should
jusdjbave brought hinisElf under the |uilt of
willul pegutj, and hi« cause under just censure.
For thai verjt reason beheld himself not bound,
(or thai liis said .. , -^ .
tbe (Not Guilty) as ibe foot so tied to the head
without tbe main body, and in the judge's own
words, as the petitioner could not in anjr sort
take or acknowledge it now for other than the
judge') oon Answer; ns maf appear upon re-
cord in the same court,
Nevertheleu the Ciiort taking tKe same In-
fercnation pro amfoMi, and refusing to permit
a copj of tl« petitioner's own true Answer, as
alM of hit reasons of not answering the In-
terroeatones, both which at his censure hi teo-
' decea to the court, desirini they might be then
■nd there publicklj read Hte lith of June, 13
Caroli lle«;u, proceeded to censure : whereby
jour petiLQDcr was censured in a Gneof S,00ol.
to his iDHJeiij, to be deprived of bis ecclesias-
ticil benefice, degraded from his ministerial
function and degrees in the uuivenity, ud or-
dered to be set on the pillory, where both his
eats were to be cut off; contined to perpetual
close impriienineMt in Lancaster-castle : de-
barred tbe accen of his wife at any other to
' couae to him but bis keeper ; and denied the
Hte of pen, ink, nnd paper. All which, except
the 5iie, was executed accordingly. And alter
Ilia close impriionment for twelve weeks in the
common jail iii the said castle, he was, by what
extrajudicial order be knuws not, transported
by the conduct of one Brian Burton, appointed
by the high slierilTuf Lancaster, who used your
peiitiuaer very basely and deceitfully, in that
bis traniportntion, which was in the winter
'' teason, through dangerous teas, to the apparent
bazard both of his health and lire, to the said
castle of Guemtey, wh^re he remained a close
nrisoner ind exile almott three whole years;
bis wife utteilj prohibited, dpon pain of im-
prisunmcnf, to set hef foot upon any part df
the island vhete she might but inquire how her
husband did ■. contrary to the laws of G'od and
the liberties of this kingdom.
May it therefore please this honourable
:l Mr.Seijeant Atkins, Mr. Tomlins.
Mr, Gordon, to assist hiui in his cause, ai
command that he may take out such copies
gratis out of the said several courts m d
Biay concern his ciute.
And your Petitioner, as' in duty boend, shall
<tttl/ piv ^^' J"^ piotperkie*. U. Bvktoh,
-I'roceedwgn^mtBatneiA.Bwtai, [%i
These Petitions being read, they *et* re-
ferred to the Committee appointed for inquiriot
into the pruceedini^s oF ibe Stur-C bam tier and
Hif>h Coimnieslon Court, and upon i heir Re-
port die bouse came to tlie fulluwing Rnohi-
As to Dr. Bastwick, Feb. 99, 1«40.
J. Resolved, '■ That tlie ["lecept made hj
the aichtyiibop of Canieebufj uod othen, hi|Fi
lissioners for causes ecckiiiaslicfl iiitli'~
the realm of England, for tbe appiebendin^ iha
body of Ur. Bastwick and searching lor tad
>eizing his books; and the messengers acting)
thereupon in searching Dr. Bastwick'i hoost,
and seaing his Books and Papers, are o^iiK
law Biid tb* liberty of tbe subject. S. TTiat
the Sentence giren against Dr. Bastwick bj
tbe Hi^ CommissioDeii, and tlie pioceediiigi
whereupon that sentence is groinded, and ike
eiecutiiin of that sentence, are ^aiait bnr;
and that the sentence is void, ai^ that Dr.
Bastwick ought to be restored to the exevisr
and practice of physick, and to have renan-
tinn and recumpence fur his damage and law
sustained by the said sentence and eiecaiii».
n. That all those several commissioDers of dii
high comraitiion court which voted against Dr.
Bastwick, in the Sentence pronounced aitiM
him, ought to give satisfactioii to Dr.Bastwkik.''
The bouse afterwards resumed the DebsR
concerning Dr. Bastwick, Whereupon it w«i
tarther,
4, Resolved, " That the proceeding* >gaii>H
Dr. Bastwick are agunst the law and liberty
of the Buhject, as also the Sentence ngaiost bin
ought to^e reversed, the fine of bflOOl. Hit-
charged, and he have reparation lor his loms
and HuSerings. 5. That the Orders and Ws^
rants from the Councit-Boaid for Dr. Bul-
wick's exile, and transferring him from tbe
castle of Launceston tu the i^e of Scilly,tnd
his impritonment there, are against the la*
and liberty of the subject, and that he ought ts
have reparation for his kisses and damagetsus-
tained by those orders, aiid that imprisonmest.
■'Present at ihetenteucein the Star-Chamb«i
these lords and privy-counsellors Ibllowisf:
The Lord Keeper, duke of Lenox, earl uf P«B-
broke, «arl of Holland, lord Cotlington, *l
Thomas Jermin, Lord Treasurer, man)uis Hi-
milton, eari of Dorset, earl Jdoreton, lord
Newhurgh, Mr. Secretary Cooke, Lord Pn»J
Seal, earl of Arundel and Surry, earl of Bridg-
water, viscount WiinWoion, sir Htnrj Vane,
Mr. Secret. Windebank."
As to Mr, BurtoD ;
1. Resolved, " That the four Comtniisioner^
Dr. Durk, Dr. Worrall, Dr. Sams, and Or.
Wood, proceeded unjustly and iIl«|aUT i"
suspending Mr. Burton ab o^io tt ba^^
for not appearing upon the lurumons in '"•J™
[iroccss. a. That the breaking open Mr. Boi^
■'-n's bouse, and arresting his perion "''^
ly (»use shewed, sod beibrw any suit flepf*
g against him in tlie Star-Cbamber, and W
clos« imptisoam«ni thareupon, aic agnintt
tiN
765) STATE TRIALS, ISCiiailuI. iC37.— wii JVyi»,>ta-*nwoiIiifc&. [706
Iitw aiid lihenj of the mbjecc. 3. Tbat John
Wrigg hath olTendcd iu senrching and leizing
lliF Uootj and Pnpets oi' Mr. Burion, by cu-
lour of R genenl warrant donnaiit from the
Htglt Commissioners, ujid that the said watrunt
it against Law and the Liberty ol'ilie Subject;
aod (hat seijeaiit Dendjr and alderman Abdl
hnre otTended in breaking open the house of
Mr. Durtnn, and ought respeciively to moke
him repnration} for the aime. 4, That Mr.
Burton ought to have reparation and recoui-
pence for damages sustained by the aforeiaid
proceedings from Dr. Duck, &c, 5. Tliat the
Warrruit from the Council-Board, dottd al
Whitehall, Feb. 3, l(i86, for tlie cnmmittin^
Mr. DurtnD dose ^risnaer, and the coiumit-
tiiefit thereupon. Is illf^l, and contrtu'y to the
liberty of the subject. 6. ITtat th* arclibiihop
uf CoDterhury, bishop of LtMdoii, and itie eurl
of Am>del, the earl of Pembruke, sir Henry
Vane, secretary Cooke, and aecretary Winde~
bank, du make reparstiDn to Mr. Burton
for his damages sustaioed b; bi* impriaoo-
neot."
As to Mr.Pryno;
1. Resolved, "That ihe Sentpnce giren
•gaiuit Mr. Prynn in the Star-Chamber, Fe-
bruary IT, 9 Car, is illegal, and ^iiea witliout
juat cause, and ouglit to be reversed; and that
Mr. Prynn ought to be discbatged of the fine
of 6,OO0J.impMedby the said Sentence, and of
all extents thereupon, and of his imprisonment
decreed by that Sentence. 3. Tluit Mr. Prynn
ot^A to be restored to hii degrees in tlie Unt-
Tcrsity of Oilbrd, and to the wiciety of Lin-
cnln's-Inn, and to the exercise of bis profetsinQ
DriuiUlurBarri>terHt law,and lo his chambar
aguinatLlncolnVInn. S.TkatMr.Prynnon^ht
lo have repara^n far such damages and preji^
dice as he hath sustained by the said Sentence
and prbceedinn. 4. That the Sen^nce given
ogsiinst Mr. Prjnn in the Star-Chamber, 14
Junii 1637, 13 Car. is illegsl, and giren with-
out any jnst CRtlse, and therefore ought to be
reversed ; and thnt be out;ht t« be drscharEed
of the line and imprisonment thereby decreed,
■ndthalheoughtto have reparation andreconi-
pcDce for the duinages siutained by that Sen-
tence, and the execution thereof — lliat the
Warraut dated 37 Auft. 13 Car. for the trans-
portsTioii of Mr. Prynn from Caernarvon-Cas-
tle Co the isle of Jersey, and bis imprimnmeDt
there, snd other restraints therein memirmed,
are against the law and liberty of the sabject,
•nd tliat be ooiht lo be di<>charged of that im-
priaonment, and to have r^srations for his da-
HUKcs sustained thereby. S. Tliat tbe Impri-
sonmentof Mr. Prynn, by a warrant dated the
li(,af Feb. 163S, under tbe hands of Thomas
lonl Cnveniry, Lont Keeper of the Great Seal
of England, Richard lord archbishop of York,
Bmry niri of Manchester, Edward earl of
Dorset, Henry lord vitcouni Falkland, William
lortl bishop of London, Edvrard lord New-
boi^h, and sir Thomas Jemiln, is umtist and
Oegkl, and that tbey ought to give Mr. PtTiii
salisfkctinn fiir the damages sustained by bis,
' iiprisonmeDt."
" The Sentence of the Court," soys Rennet,
lyas a Fine nf 5,000^ upnD each detinquent
I the king, with pillory and loss of ears, and
the very reinaiuder of ears : after which sufler-
'iog, they i>ere ciinmitled close prisoners, one
' the castle of Lauceston in Cornwal, another
the cu!tle of Lancaster, and a third to Car-
rvon cnitle in Wales; from whence thej
were afterward remcived to remote islands, and
•f friends allowed to them. And
here, though the insolence of these men was
very great, their punishment was thought ex
treinely to exceed it. Some moderate penal-
ties tni^bt have left them under tbe neglect of
brlns bold and imprudent writers. But Ihesa
terrible Mows upon them, raised them in the
eyes of the people into the reputation of su^
frrers and confessors for ihe best of causes.
Religion, Liberty, and Property. The lord
Clarendon ddivera a wise and trne opinion qf
tline men, and their 'pto^ecution. * Tber
'were three persons most notiiriiius for their
' declared malice against the governmott of
' the church by bishops, in tbair-several Books
' and Writings, which they had published to cof-
' nipt the people, with elrcomstances very
' scandalous, and in language very scurrilous
'and impudent; which all mett thought de-
' served very exemplary puaishment: they wens
' of tbe tliree several prdfessions wbich had the
' most infinence opon the people, a divine, a
'common lawyer, and ■ doctor of physic;
' none of them of interest, m- any esteem with
< the worthy pan of their several prol^ion*,
' having been formerly all looked upon nnder
' characten of reproach: yet when they were
' all sentenced, and for the execution of that
< Sentence bto^ht oat to be punished a*
' common and signal rogues, exposed epon
' scofibl^s to have their eats cut' off, and their
' foces and foreheads branded with hot irons
' (as tbe poorest and must mechanic male-
■ fiwtors used to be, when they were not abls
■ TO redeem thesnselves by any fine for their
' trespasses, or to satisfy any damages for tbe
■ scandals they had raised against the good
' name a&d reputation of othets) men begun no
' more to eoDsider their manners, but tbe men;
' and each profe«ion, with anger and indigaa*
' tioB enough, thought their education, and d^
' grees, and qnalily, would have secured them
■ from such infamous judgments, and treasured
' Dp wrath for the time to oome.'"
Lord Clarendon says, " There cannot be a
better iastonca of ifie unruly and mutinous
r' -it of the city of London, which was then
sink of all the ill-humours of the kingdom,
than the triumpfaant entry which some persons
at thM time made into London, who had been
before seen upon pillories, and stigmatized m
libelloas and iutamous offenden ; of wbich
classes of men scarce any age can aSord the
There bad been three persons of several
i 7«Mi before censured in tho
.1161] STATE TRIALS. 13 Chau-isI. lOSl—froetediii^agaiiutBatRmdc, Ire. [7fi$
Star-chMnbcr, Williim Prjno a bMTUter of
' Liacolo't-iuu, Jobo Bastwick a doctor of pb;-
■ic, and tlenrj Burton a, iDiD»ter nnd lecturer
of LundoD.— The Srjt, not unlearoed in the
profesuoo of the law, hs far ns learning ii ao-
()uired b; tbe mere reading of book ■ ; lul be-
ing a person of great i&duilrj, had ipent more
lims ID reading divinii^; and «bich marred
tbat divinity, io. the convenition of &ctk)UB
and bot-headed divinsa : aad so, bj a niiiture
of all three, wiih Llie rudeoew aod arrogaoce of
bii own nature, had injntracted a proud and
veaumaui di;>liLe to ihedi&citiUneof the Church
of England ; and ao by d^r«»i, ai tbe progreu
it very nataral, an equal irrevereDce ti> ibe go-
vernment of the state too; bulb which he vented
ia Mveral absurd, petulant, aiid tup«rcilioui
ditcau>«e* in firiut. — The lecond, a hnlf-vitted,
crack-brained fellow, unknown to either uni-
. versity, ur tbe college of physiciaan ; but one
that had tptnt hi# lima abroad, between the
tcboolii and tiie eaiiip, for lie had been in or
pasted ihroutb armiei, and had gotten a dno-
turshlp, and Litin; nitb which, in aver; flow-
ing iiyle, with some wit nnd much mabce, he
iDveigbsd against the prelate* of ttie diurch in
% book nlucb he printed in Holland, and in-
dustriously dispersed in London, and tbrougb-
out tlie kingdom ; hnving pretumed, as ttwir
iBodesty ii always equal ID their obedience, to
dedicate it ' to the sacred majtsty of the king.'
—The third had Ibrraerly a kind of r«lBii»n
fay s«'vice to the king ; having, before he took
orders, waited as closet- ke^jer, and so attended
U canonical hoan with the books of devotioa
upon hit mnjcMy when h« was prince of Wales;
Bad a little befuie tlie death of king James took
erdercBud su kis highiies* coming stmrtly to
be king, the vapours of ambition fuming iota
hti bead tbat he wai siill to keep his place, be
would out think of leis than beicig clerk of the
doget 10 ihe new king, which placr his n^esty
conRsired ypon, or rather continned in, the
bishop of Durban), Dr. Neyl, wito liad long
•erved king James there. Mr. Burton thus
diia^ pointed, and, as he called it, despoiled of
tut right, wuuld not, in the .grcntacst of his
b^ert, sit dawn by tbe aSrotkt; hut cumniitted
t.wo or three luch weak, saucy indiscretions, as
caused an inbibitinD to be tent him, ' that he
', stMuld not presume to come any mate to
'. court :' and from that time be retolved b) le-
Tenge lilinself of tbe bishop of I>urhBni, npon
the whole order; and so tumed lecturer and
i)>: beiqg endued wiUi
inttead of louning and
•ny tolarable p<uu.
" These three peisons having been fiir saveral
follies and libelling humours, first gently repre-
hended; and. alter, for their ineorfigiblenen,'
more leverelr ccnsuTed and iraprisooed; found
•ome meant id pnson of corratpondenee, whidi
vas not before known to be between them ;
*nd to combine thenwelves, iu a more pestilent
■ad seditiout Libel than tbey had ever before
vented ; in which tiie honour of the king, queen,
coauctlDi^ and biikoft, mt will) aqii^lioMM
blasted and traduced; w.hicb was faithfully dit-
pened by their proselytes in the city. Tbt
authors were quickly and easily known, and
bad indeed too much ingenuity to deny it ; and
were tliereupon brouj^ht logeiber to ibe Star-
Chamber ere ItttHt; where they btbaved tbero-
telves wiih marvellou) insoleacei with full ooo-
lidence demanding ■ tliat [be bishops who sate
' in tbe court, being only the archbitliop of
' Canterbury, and ibe bishop ufLimdon, might
' nut be present, because t»y were euemio,
' so partieii :'_which, how scandalous and ridi-
culou* soever it Mcned ilien ibere, wtsgood
logic and good law lwo years after io Scouand,
and served to banish ibe bishops of that king-
dom both from the Council- table and tbe as-
sembly. Upon a very patient and solemn bear-
ing, in as lull a court ts ever I saw in ifaat
place, without anj^ditference in opinion or dis-
tenting voice, they were nil three ceosurcd na
tcaudilons, seditious, and infamous penout,
* to lose tlieir cars in the piUiry, and to be im-
' pri&oned in several jails during tbe king's plea-
;' all .
;uteit
ith t
and severity enough. But jet iheir itch of
libelling still hnike out, nnd tbeir friends of
the city fnund « line of communicalioD wiih
[hem. Hereupon ilie wisdom of the state
,tliought Hi, tbat thow infectious teres should
breath out tbeir ciiiruption in some air iii«i«
remote from that catclung ciiy, and less liable
to the contagion : and so,' by an order of tbe
lords of tbe council, Mr. Pi^nn was sent to a
casde in the island of Jersey ; Dr. Bastwick
tn Scilly ; and Mr. Burton tu Gucrusey ; where
they remained unconsidered, ai>d truly 1 ihink
unpitied, for they were men of no virtue ur
merit, for the space of iwu years, till the bcgii>-
ning of this present pariinmeiiL
" Shortly upon ihet. Petitions were pre-
sented by their wives or frieads, to the boow
of commons, evpressii^ their heavy ceosores
aad long su He rings ; and desiring, by way of
appeal, < that the justice and rigour of tbat
' sentence might be reviewed and Cinsidercd ;
' aitd tbat their pcnoas might be brought from
■ those remote and desolate places lo London,
■ tbat so tliey might be able to facilitate or
■ attend tlieir own business.' The tending for
them oat of prison (which was tbe main) took
up much consideration : for though very many
who had no kindness, bad yet compasaton for
the men i ibinkinit tliey had safivrcil enoueb;
and that though tbey were scurvy fellotvj.^iey
had been scilrvily used : and ottiers, had not
only affection to their persons as having auScred
for a comiaon cause ; but were concerord to
revive aad improve their useful AtculUcs of
libelling and iwiting authority; and to make
those ebuUitioot of their malice ijot thsn^hl
noitom to the state : yet a Sentence of a td-
|»<erae court, tbe Sta^Cbanfaer (of which they
had not yet u>okc with irrevireiice) wiv Mt
lightly to be bkiwn off: but, when tbey weff
informed, and bed considcird, that by thai
Seateoee tlie petitioner* a
76<»] STATE IHIALa 13Cr.I. le^T.-Pncet^gtagaSaiiheiiilupf^lMailn. IffO
' aboaC two of (he clock in tha ifUrnoon,
removed tbcnce bjr an order of (be lords of the
council ; tbej looked upon iti>t order u a *io~
lacinn oflhe Sentence: and soranrle no icruple
to order ' Tliat tiie prisoners should be re-
* noted fmra those fuivign priions, to the
' places to Kliicti Uic; iraro rri;i'lnTlj tint com-
' iDiaed.' And lo tliat purpoae, Ks.rruili were
•igned b; the Speaker, to tlie giivernnn and
cMpiaiiw of the leieral cutln, * lo brilig ihein
in safe cunodv to Lourfoa :' which were sent
d-ith at} ponible eipeditioa.
"Pryni and Burton bring ueinhbou re (thoDgh
in diitinct iaiuida) landed at the same time at
South amptoQ ; where ibey weta received and
CnlcTtaiiied *rth extfuocdinar; demonstrations
of afieetion and esteem ; Bttrndad bjr a mar-
I'etloue conflux of company ; and their charges
not only borne nith (treat majcnilicence, but
liberal preaeuls giren to them. And thii me-
thod aad ceremoa; kept ihem Cimpany sU
their journey, tirent herds of people meeting
thcan at th^ eotiance into aU town «, and waii-
iaf upon ibeia out with wimderftil acclNmaii'ms
of joj. When thej came near to London,
initiEitade* of people of anend cnnditiuns,
■ome OB horMback, oth«n on fiiot, met theiu
•oiqc mile* from the town ; very manT having
faeeii a day's joomay ; and they were bivnghi,
Chsrin^rosi, and carrieil into the city by
nboTc ten thiiusand persons, triih booglis and
flowers in their hands; the common |>eople
strewing ilowen mid lierbs in the nay as they
passed, miikine great noise, und eipres^ions qf
joy tiir their doliveniiice and return; and in
tlinie acclamaiion^ mln^lins loud and virulenc
eKclHmntian) agBUist the bish»ps, ' who had so
' cruelly, prosecuted such godly men.' In tite
same manner, within five or sia days after, and
in like [tiumpb, Dr. Bittwick returned front
Scitly ; landing at Dover ) nnd fiwn thenea.
bringing ihe same teatmioniesof the affection*
Hiid zenl of Kent, as tbi: uthei^ hnd done from
Hampshire and Surrey, wui met belbre he
caiiielo Souihwnrii by ihegtiod people of Lon*
don, and so conducted tu his lodging likewiae
in tbc ciiy." 1 Clarendon, 199.
By the IlnbcM Corpus Act, 31 Car. e, $ IS,
it ii enacted, 'I hut no subject of the realm,
inliabiiaiit or resiantof Eiigtnnd, Wales, or
Berwick itpon Tweedy chMll be irot prisoner
la Scotland, Ireland, Jersey, Gruemsry, &c.
or other place beyond tbe seni, undrr.henvj .
peniltips ttpon all parsons cimcenied in con'
triving soch cammitmenl, or tranvpurtalioo.
146. Proceedings in the Star-Chamber against Dr. John Williams,
Bishop of Lincoln, fof publishing false News and Tales to the
Scandal of his Majesty s Governmeiit; for revealing Counsels
of State contrary to his Oath of a Privy Counsellor , and for
tampering with the King's Witnesses; 13 & 14 Chakles H
A. D. 1637. [2 Rushw. CoU. 416. 803.J
Sir J«bihBaDk» knigbt, his MnjeUy't Attorn ey-
G«nei«l, Plaimid', th« right reverend Father
io God, John Lord Binhop of Lincoln, Wul-
ter Walker, Tho. Lund, Cadwnkdir.Powel,
Midmrd William*, Wdliaoi C«clio clerk,
Ed. Lake, Jo- MoeCeyn, and George Wal-
' ker, Dcfeiidants,
PrIGEON'S credit coming in question, being
a otBtFrial Witness for the Biiiliop of Lincoln,
the king's Attorney- General let fall the Gist
Bin, tearing adefect of testimony, and preferred
n second Bill against the binhop for ' tamper-
■ log with the kiog'i witnesses.' and upon tbiit
•ccoant the Ctttise came on the 11th of July,
163T, which held nine days debate in belting ;
■nrt grent was the concourse of people every
day to thb cotut of Star-Cbamber to hear this
l^reet Canse, the' Bishop being at that time
mncb pitied \)y the people, who then cast out
•peeches that that Bishop was prasecuted be-
cause the state warned Money to go tn war
Sinst the Scots, and tbnt it was Hi he should
•d in his pane by the Censure of (he court
oTStar-Chamber to pay a round tine to the king
of 10 or 19.000'. .
The Information doth charge the said'Bisliop
witb a practiee mdiily to pm tbeu^atldpe-
TOf.. ni.
rusnt of certain Examinations taken by tl^
Lords of lii^ m.ijesty's Prlvy'Council, and com~
iided by them to be kept secret from th«
le end unlawfully and cor*
iided by t?
A of all m.
tradict and weaken the saiiJl Exuninations g an^
for practising nnd corruptly tampering with
Wiiiicises to retract their former t'estimonie*,
and to vary froin the sgme upon their second
Examination ; And fur timipennn witli, and
soliciting other Witae^ses, produced, and to be
ciamined for liis majesty, not to depuse agalns^
the ssid Lord Bishop, but to cunceul their
knowlcdiie, and say tliey did not remcmberj
and for Penurv io an Aliidavit mada by tbe
Defendant Catfin in Uiis Couit, and subonia-
tioD thereof: And for other Alfences, B> by the
said Coinplainan^s Information mure at large it
doth and rnay appear.
Upon foU and deliberate hcBrine whereof if
plainly and evidently a^jpeared ti tni« honour^
able Court, that there beine nnother Cauie for*
metlv depending in this court, betwecu hisipan
Jesty's Altrirney-General Plaintiff, and the sail}
Laid Bishop of Lincoln Defemrant, for pabliikf.
ing false News and Tales, to the scandul of bis
majesty's Governaienl, and for rerealiq^ of
3,B
7)1] STATt TBIAts, I3Ca. t Ml^PmixeditpagttiKMihJIiduiptfUMaibt. [ITf
CouiimU of Sura eontnry to kit oalb of n pri-
TycnuuKllor i roe John Prigeon,' ^ent. wb5 id
ihat cause etamined u n WitoeM hr ttii; De-
ftodant, and by an Order made in Hillary
Term 10 Car. re^i, liberty wai given ro the
Flaiiitiff.to eiQDiine the credit of ihe sakd Pri-
g«on upoD certain Eiceptioni, which were d^
tJTereil iota this court i And liberty |iven to
tha Dereudsnt also lo eutinijc Witnesses to
uphold and maintain liis credit; in one of
vhicb £iceptioai was, amougu otber things,
oontaiiied, 'I'tiat the md Prigeon being by une
£liiabeib HodgHin, wpoo ber nath, accused to
have begotten a biistard child un lier body :
And being by the two iiextjuaticnof tlie peucn
adjudged iIk reputi:i< Tatlicr; ood appealing
from theia to tbe next Quatter-wksioii) tield in
tbe 9th year nf bis tnajesty's leign ; to niitleid
the court of QuaVter-seuions, and in i'ree bim-
■elf frooi thpt accuMlioD, did nt KYeniL times,
•nd by aeieral perMUsaadtueans, alter bewai
M accused, labour to corrupt the said Eliiabetli
Uodgspu, atid ti>r money to procure her to lay
tbe >eid bastard cliild on M>me other father,
and to itvear thnt some oilier, and not the said
Prijjeon, had begotten tlie snid basrard ; and
that he did labour »onie Witneues ihsi could
liave testiiied against bim, tuucbing tlie said
bastard, at ll>e suidQuaiter-sessions, losupprest
their TeMioioniea, end dreir or endeavoured to
draw others to equivocate upon their oaiUs,
. when tliey did appear.
Ur. Guidinsr, Uecorder of London, mads a
long and witty derciice fur the Bishop for scle-
ral days togetner, much of which is repeated by
(ome of tbe lords in tbr]r Speeches, whicli, for
■ brevity sake, we omit; refeirine the reader to
ifaote repetitions which some of the lords do
.. loake of the Defence.
As to the first Bill dependiii^ against tbe bi-
■hop of Lincoln in the court orStar-Ch;miber,
it <VM occasioned by the Examinaiioiis lakeir
by some of the privy-couucil, of »ir John Lamb,
and Dr. Sibtliorp, who, amongu divtn other
things, testified nj^inst the bishop of Lincoln,
ihnt the <;.-iid bisliop did give then fcrcat da-
Gouragcment In their proceedings in the Eccle-
•iailical CoarlsngalBsttheJ'uritaiis; and that
the Biabop asked sir John Lamb, what kind of
people those Puritaot were of wlioni lie cotn-
Slained, and wheiber they did pay tbe Loan-
[<)ney? to which sir John rcplinl, 'J bey did
FOnform upon that account, 'and pnid their
fnoney ; but neverilieUis tbcy were Puritani,
■ot confurmibte to tbe Clturcb : (o which tbe
bishop replied. If they pay their ihonies .so
readily to tbe king, ihe Puritans arc tlie liint;'ii
best subjects, and I am sure, said tbe Bishop,
the Puritans will carry all at last. Tliesa Exa-
minations were sealed up, and Mr. Trumbel,
clerk of the council, was required to keep them
•ecret, and pErmit none to see them ; but a
. discovery thereof was made to the BiiJ^op,
which, amongit otber mattan of state, was the
occasion of the lint Bill in this court against
Ifae Biihop, as tbe Iiifuimatiun did Ht foiib.
Sir Joho Bank* knigbt, hit M^esqr'a Attorney-
General, his Heply iu tbe Case agaiost IM
Bishop of Liiiculn.
May it plea«e your lordships; Yonr kml-
ihips have heaid a Defence made by tbe De-
fendant's cotinstl, that consist* more of obser-
vaiioo ibaii urpr(H>f,Bi>d in examination of bis
Defence, I shall make it appear plainly, that
lliey very much fail in tlieir own obaerratiiuis.
In tlieir observatioot they bvc been curioD» in
distinction of times, place, and otber citcnin-
stancee, to descant upon tbe patticulan of wit'
nesses, and men that were no parties to tha
suit ; but for the (naio substandal parts of tba
Defence they bate omitted. I shall desire to
observe to your lordahips, that, with n greatt
scandal On his majesty'i Proceedinip in thia
Cuurt, they have told you itories and calea that
sliould be- ground o( this suit, vii. That it aaa
through malice and hatred between sir John
MouusDU, Mr. AmctKks,Bnd Prigaon ; wberexa
it shall appear unto your lordships, that tba
suit was opon mnst just grounds, V>t the vindi-
cuting of public junice, and that dr John
Mounson hatb daua noibing in this Causa, hu
according to tbe duty of his place, and cleariof[
his own reputatiou. It will be necessary, sines
these things hare been stirred, not far your
lordships information, who kntiws it well, but
for the satis&ction of the world, to dear and
juslily bis majesty's proceedings, that I gir*
ynu tome information of die tmegrouDdof thif
suit, and of the necessity of it.
Micliaelmas 4 Car. an Information was ex.i
bibited Bi^nst my Lbid Bishop by my prede-
cessor, and that was fur tbe caotrivin^ and pub-
lishing divers falsa Tales and News, to the
scandal of hia majesty's GoTeramenl, and br
revealing some things contrary to tbe duty of
his pta^, and oath, as a Pn*y-C«utueUor.
This Cauae cama to issue, aad in ibe f^amio&.
tion of Witneasea, another issue happened, a
coilataral inatter by itself touchini; the credit
of Prigeon : Upon examinatioo of this it fell
out, (which we could not diicorer before publi-
cation in the fint Cause) that there had been
such (ampering, seducing, and labouring of iKe
king'* Witn«seii, as never was in any cause <
There bath been such preparations,- surh io->
Etmctions, sucli limitations to hi* own Wit-
nesses, lo direct ihciu how far tbej should
swear, to what to give answer, and to what not.
My lords, cfaese proceediacs, if they oiigW be
suffered, tend totally to the lubTenioB of all .
justice: for the .jirocecdings in tliis Conn,
ss in all other coucts, it by eiaminatjos «f
Witnesses relumed in parchment, notsiiMvare;
therefore if any be instructed what totwew lo,
and it so returned iu writing, whether ttiroogh
threats> or for fear, or favour, or afiectKHi, it i»
impossible you should give » just Senlenoei
though you intend it never to clear. My loHb,
tins nppeaiiug ofler pubtiouion in the fint
Cnuse, It was time, for example take, to brii^
this Cause Bud'tbese Misdemeanors to a public
Sentence, to be a tMror to all otheis Ur Uw .
ra] STATE TKIALSt ISCiuujt)! iM^M
like. So MS, my lonli, thit Came iinot gnMitd>
ed upon the labuloui stor; beiween sir Jo.
Unamon, Mr. Amcucks, and Prigeon, but
apoD'theseJQst grounds nod proceeduiip; and
liercili we bare ^resi sauu to bku God, and
atgnify his mujesty's juuice, thw w« live not
iiDder a cobweb- law, Ibat taket)i imall fllei,
and let* gieat odm pasi. This pretence doth
teil us, [hat bonoorsblc penont who do detcrre
weil Imtc I^ maJHtT's &vour, ani! their own
■>ent« do receive a double boDour; and thia
penon, how great loeier, if he deter* e ill, he
My lords, I shall come now to the particutar
ChM^, and therein I shall bet,m mtb the first
' Chaice, which is coocerning the tampering wjib
the four Wiiaenos, wbo depoied about this
bnslanl-child ; whercia the state of ihe question
atandeth [lius. In Februsr? 10 Car. there
•n Order (or the examiuatioD of Prigeon's i
dit : ameog other (hin^ ibere Tell out a qi ._
■ion coDceruiiig a hasiard-child, whether John
frigeon was the reputed fol^r ;ea or not
Tbete was fortbe proof of tlie fact produced be-
breihe jusiicet Dr. I'opham and Dr. Fanner; ;
and betwet^justicetMpabUcsenionsaeTeral
witnesses, bwof tbem, Ijinn,'Wetbere), Aoae
Smiti), sitd Tub, depoaed directlv, that this
Frieeoa wat (be father of this chifd ; stHne b;
coolcsaioa from bioi, MHne bj couftssion faaa
hertcif being the mother ofihe chiiil, who
preaent at tbe time of her delivert.
These Eianunaiions thus taken tor tbe truth
•f it that he WHS the gtiber of tba baitard-cbild,
Uw justicei did ccrtiff it in public MtsiDnB ac-
cordingly. Bat now my lord of Lincob con-
cdreth with himidf, that he cannot suppott
■lie credit of PrifeoD (which coDcerDcd him lo
■Uicb) unlcaa he could get these fbu' witnenes
Ifi vary &om thnr fbrmer teNimonr, and bj
his B^u batb laboured at you have bearcl.
To this tbey have teeotcd lo make tome An-
swer : I. The Order made S Mail g Car. and
that was before sir Joho Bowlet, teijeaat Caf-
■is, *Bd other*; and that Order waa to acquit
PnceoDof ibe battard'Cbild,and to lay it upon
«te Booth. To that I shall pvc a clear an-
■wer: fiiat of all. Dr. Topham and Farmery
that were tbe men Uut took the Examinations
coocerning this bastard -child, were not present
at tbe making of ^s Ordtr , SeooodW, The
WitoctKS, thoaa four of them that shmild tire
the testimooy for tbe Proof, no one of tbem
were present : and it is prored [hat Wetherel
waa hired to h« absent ; and in (he last place,
this Order e Mail wascoatraried bytbeOrder
3 Oct. when all tbe other justices ta*enr John
Bowki weve prcaeni at die sessiotu. And for
the order iltat wat confirmed by (be court of
KingVBench, it waa upon the regality of tbe
•rder, bat not in reqieaof tbeiact. And, my
lords, there it another ground of it; for at that
tiine Prigeoo had tubmuted to keep the bastard-
child, and ^ven bond to discharge the pariih,
and maintain tbe child. This waa proved by
«r« witMtfti: but tlM oboa itDot coocetn-
t,4f. [77«
ing iMk htutaid-efaild ; for luppoie a man had it
bMlard-cliild, will that make bis testimony
wholly (Old ? Tlie Charge a, that alter such
and giviutt of money it
For Wetlierel's retractation, yo>ir lordstiips iinva
lietrd be was examined at tbe s^ssioni 1 Oct,
that he did confess there John Frigeon intreat-
ed bim not to appenr at (be geMions, and that
lie should answer to no more questions than
tite court asked him ; this waa ins de|ioMtioo at
the settiont. Being examined in the second
Cause, there he doth miace bia Oep<>sitioo,
160 Int. he saitb Prigeon did not draw him h^
bribes or rewards lo equirocote.. And that it
wat tor bribes and rewards it appeareth by
George Walker's Eiaminalion ; fiir be swear-
eth, that ihii money was tu be paid to a butcher
bv 6d. in a joint j so it waa not given as a bribe,
h^t by 6d. iu a joiot of meat. George Walker
swearetlj, that Owen aod Powel shewed We-
therel a Dictionary, and shewed him the. mean-
ing of the word Equivocation and Subornation,
and this ditcoune wat related to Eitzabetb
Smith. To which the Recorder replied, Mr.
AtLOrney mistakes himself; I will not (saith
the Attorney) touch upon any tbmg in my
Reply that will not plainly appear in ibe Books,
To take off this Charge concerning Wetherel,
llwy have read Weltietel's Deposition, (against
whom all this proof is) to the 9, 3, 4, snd 5 Int.
to which Jnterrogatoriea hit Deposition it a
plain negative preguent, made upon a leading
Int. thug : Wbetbtr did Powel at tlie time and
place afuresaid rrqutnt you to write ynur nam*
to any note at all f (to shew thai it is leadingi
Wetbexel anaweieih Int. 5, That tbe said Powe)
did not in Jaminrj aforesaid, ot the place afore-
tsid, request faint lo write his Answer to any
note, ot to any note to such effect ; su be twear-
•tb be did not at that time and place shew
such a note. Tl>e Deposition of Walker it,
Tbat by the direction of Owen and Powel h« .
tendered the note, as by tbe direction of the
lord bishop. Another tbing npon tbe esnmiaa-
tion of Wetberel, he was nut examined till the
letb of May 13, and at that time he had copie*
of Walker's Eianinatiant, and to pt^ared
himself.
This is the answer I give Ut tbe Depotition of
Weibeid.
They had next George Walker, a Defendant,
wbo twtb contested agaiott himself sufficient
matter, for which 1 hope your iordslups will
Sentence him. It is proved he was imployed
tamper with Alice Smith, and he must be
the man to give an account to my lord bisliop
of tbe proceedings. Tbey say it was a lawful.
and juttifiaUc thing to ask a nitoesa a qutt*
tion, and that Wetherel was but atked the
quesliOD, and nothing more; my lirds, here it '
mure than asking the question, it appeareih In
the proof that there was a Nate deiiverid by
Powel to Walker to subscribe, tWe was shew-
ing to Wetherel a Dictaonary to expound tba
word* Equivocuioa and Subornation;, n it
frS] ?rATEimAI^13Cit. I. I«37.— AMW^i^^adwfkBuJkpqfZwDh. [7TB
Wbb ii'it an asking fiir bare inrunauioii, but a
teuderiug ut'natrt to avoid equivucalion in Uie
III ihe ncKC place th?; have imisW^pon thr
P^ iiiilKiii 01 I.unn and ^licr .Smiili ; n lieiviQ
tllL-y BBj, [liat what Uity Iultb laid ivat but an
'eXr'iatiation u( wliaL t<tey liart Ibnocrlv sw.irn,
' ' t ••uiB»r«i "
ts to explidn Iiioueli': butit will appear
plttiu retractaiioH. 1. Alice Sniitli ilid
lonncriy, ihat Pri)<«on sent fr)r h«, de-
■rliiK iK-r to se« if the could get the nomaD lajr
upon any utiier. rhm uaa ber D«-
Wj i»
I llie
But in the s
Cuuii; tlie tweareth il vtaa to get hCr to lay tbi
child up.m B11V other ihai she repaied to be ibe
fettier ui'it, and iKiiupon hiro^cif. And so for
Aline I u4i her Dtpi»iliuD ai the lesiiona, that
Prigeuti bad ufTereti her 30i. tii get her lay tlw
child upon any otiier but upnu bim; but her
Dejm^'hon indie tecond Cabsc tn l.iy [he child
npoti sui)ie tfait nere tlie rnie rather: lo here
is a Dcpdsiliuii tlidt a bribe shiiuM be i;iv-eu to
hiy tlie child upaii niiv i>il>er hat upon Pii>coii,
and iKiw to dep.>sr to Uy (he cbilil iipMi ihr
true rather, i' a coasiiig ol' tlie tt>rmer depo-
ntioti, Andlarf.oTD an «pbD:ition.
Tli.yh.ive t.il,eii some Kictpl inns l» George
\%'ftllter,tp ibfw tiow inipri>bablc n ihing it
that he should be a lit ^leriuii to nLyncini
itiii hn<«ims,iiid iheydWdyoui lordbhips s
reasons; tJeiH^^' Walk" und I'rigCDn wen
kind, and dtpreluTF nnlikelj) Genr^e Walker
should be amplnyed tnr eapportiug ihe creditof
Fri|>eon. 1. In this particular Itiey linre
BBttdtli.ittI ere "IK uny difference between til
tira. a. Ocnge WaBter mifbt be very <
iDiile thmcc o( to be eoipl'iynl, fur he wi
proctor in mv Jottt bishop's Cuuri. 3. Suppote
tlicre were ditfertnces beiireen tliem tta, ibii
i«as an em|rioyin«iit for the bishop of Linoohi ;
for this oas a Berrioe for mj lord bivbop, wlio
naamscfa engOK*'' to maivitain the credit or Pri-
geon, for It oppean'oK of hit own mouth by
Oivpenitncsse'ittiatitfaRd coat him 1,S(I0^., and
SfiOOl. to maintaia hi* credit; for Prigenii at
this rianehiid takeli tlie child upon Mm, bnt the
■ervice thatwaa to be done was for the bishop,
and -ihneroK Geoq^ -WHlki-r a fit man for it.
But they lay here iiai only a question askvd of'
Alice Snitk, vhAb«r<rt(e liad said mi here was
no tamperini; with her to alter her DeposittoQ :
Look upon tlie Deposition o( Alice Smith to
Int. a9, SI, and there it wiH appear aato your
lorrishipg, it wa^Dotabart Bskin^offlqoeation;
did not be lay it wiis to lay the child upon any
other thut was tlie true fxther? but the very
<|Bestteo Hsked, ihe; eodeavauivd tobaveptot^d
in the second Cause. Tlie qveition was, wbe-
tbA* that AliceSini'h could depose that Prigeirn
Mid unto btr, G«t tlie wonan ro Uy the child
' Bfion (he true fatbtrf Georse Walker broo^t
word to the hiiliap tliey could get nothing from
E. Smith Int. %9. mtth, AKoa Smith did dien
■nd there serioH'ljr MBinD, that Prigeon oibfed
Jbcr«J, M 4)^ lb* Imnnl cUd iijMa wy «theiv
eant il iras to lay the child upon any oUkt
BE was tlie right lather ; kbe aiigweicd again,
I, slie was nut mistaken, the bl. was ID pro-
ire her to lay it upon any other, and not n|icia
■d; and taid furtliei, ihia the wonaa had w>
kuuirledged Prigeon had taice the me of ber
liody ngaiust the church wall; that Georj*
Walka, io the ptesejice of Ptnrel atid (Iwm,
and olhera,related unto them the tnlMlaace iBd
effect of the nliole diiicotirsc with Alice ^ith
at Munon; md one of ihem d«»ii«d to i>iiie
his Letter tn'tbe bishop to give bim agli*&o-
lion, and toid this Depnnent it ivas deured by
Uwen and Panel to give hi» lordtbip ao ac-
count of their juurney; in ubich Lettei was '
cxpresiicd, that l bey could gaiK nothing ost of
Alice Stnitb. — My lords, la cnn6mi this ve
read Gearge Walker Int. IT. who proTctli ike
like presiiiig of Alice Smith ; and in the tod
tiic consequence was, Ahce Smith did lary fiun
what she liad fornitrly shoth.
Neit phice they have gi*en Mine Answer
unto Ruhtrt Hicfaurrfton, to the S6 Int.(«'liiek
being rvati was to this effect) taith, Jnhn Pti-
l>eon ilie ehler did acquaint tbi* DepAiient la
cinne and speak with the bishop of Liacohi he-
fire liis Eutinination, nnd accurdinsily hikio(4-
sfaipilid in fail little pariotH »peak k iWi this De-
pouent, and did l^u Mtd there antnaint hi>i
Ihat he htd seen liK copy of the EuuninabMn
taken at the Sessions, and did ask Kk» Dtpo*
uent v4m dreK op the sanu ; this ' DtpOBtnl
ontwered his lui^bip, (hat be liid it u dnk of
the peace; the Bistnp aBid,*be ■asnhtiAM
ill (be penning of the Deposkimi, fur that he
efioold hare said, H> laj the child upon the ligh
&i^r, and not otherwise. Tbe Bishap siM
bow he wotfld inwrptet ifae Rcconl ; he isid
be cDuM think no otherwise of it than •* th*
WnnHs had svorn. And ttwt Deponent fw-
rih he v«rily Mi«*e*h hb lordship wmM
have had faiia to Inve ataered the Record, ibal
might not vencb opoa fngcon's end >i iiir ta
wonld have had him given it « right fclher.
Mt kiTdt, TourloHbl^ MMf lAserw lim «f
all, that mj Lord Bisbop-geot for Richanfean to
ixone to ban and speak with him, befcre he
should be cxaiaioed ; tbea «nj lard aiked whd
drew Ae DepositKHi of Abne Tab and Afice
Saitb; he told himtbeywvre drawn ap in opra
coart; be saMi tie tbougbt the Deponent «h
liecehed, for it ihouM be i^B dbe i^ latlMr;
so berewat a retractation, whiob'wu the poM
in iame. S. He aiketb hin how ba »«iM m-
terprct the ttecord, ud wished hin to belcDdar
of PtijEeon's credit.
My lords, (his is of great wnn-nuiwee ; Itr
if mv Lord Bishop ooaUl have guned the laskf
of this Kocord, to lay the btutard cbAd «m
MBj oOm ibst WHtbe ri^'fhih«i',the« beM
joined tb* came; Airtha nvpcmg with W*-
neiMswaa'thegroaiidof tbe«MM>> ^^
lie nest Otgeotion riiey ntda, was bw^^
the -frlchint nwery of this same Aiiae SsiA.
Unt bMC 41*1 jwv iMMJT^Mtat *• "rt
1*77] SXATE TH1A15, nCmAMia»l.l^Sl.'~fi>rmjaidaiai^tke
hiTj»^U wrHaetipgiBn,^ ■ot6«di<4tlieiioiii'
luBtiDners tiiere, they brongtit ber op to Lon-
don, and har^ khe wie eianuned, and if the
kins^ Council would tnrt exanuntd ber, ftny
vipit bw« exhibited Imctt'; and (b^ have
told jonr lordiiliipi, cbM the Cbiif e mis, that
9be wB« sbilted tram place to place, tluit tbe
Bi^taotbeaMuniaed Mawiunsfurihekini.
Ibey hkve uttterly misCakian tliis Charge of ihe
loToraMioii; fbr the Charge i*, that rhe^did
'shift ber awx; tram place ts place, ilAt she
Aa«ld not be examined as a wiuiMi M th«
coaimiwion. S. Ul' p^rpoie to -oase ker to
Tary aad mtact ber testivMHijr,^* «ror£iDgtridi
IterdiiriBg (ketine or tlie e(«out«»ii nr tbv coni-
nisBOB, ibat ihe ibnuM bare been eiomineri
fardieking: Per ChiicoiiMiiiBion was executed
at Bedford but 18 Miles frvm Hsntingtoi),
wben the^ irere wkli Alice Smith; and iF ibej'
had not aa cod in it, ibej mijEhi m weO have
iHNfliCber tn Bedlbrd, beiit|; bat 19 miles, as
R> LoBden, bei^ 90 rojlei. 9 Mnnij Itie com'
miaaioii was esecuted K Bedford: IS MaTti)
«nouled M Leicester : 81 Martij adjouriKd
add execuMd at Lincotn : T Aprilis executed
at UBritin^B ; ^id the rtrj daj that tbe was
■xaaDriDMl et Loaidon, tbi* Alne Soith ihej •cnC
•Dto her, tnd prafliEncd heriBOoefj-totdherrfie
afaouM nerer inaiit ; she wrM away In poor
>iwhil, ijlad lobaiTDw bamaid'icliwtb), return*
db agaa genrieantasna tike , and tend e< h moofj.
Tkej say, i<4ei> she MaiM LoDrioa, she con-
tnaod diere hMpittK an Al«-ko«»e m WWctioE-
tan'a Cat til Ae ikibnew in MkharimM Term,
rinn, and Waiker mn*t wme a letter accari^
iaglj: CtuioM4>,taj tbe;, who should TeceiT«
boiefit but Prigeon f fngconivu theptitKipal
wHoess in the lirst Caase, my Lord Bisbofi did
■wuntam bis credit; it •rai no advanrafie (o
Prigeon, for the bastard child was submitted
unto. And [hea jour lordshipg huebcBrd nfaat
a lanpering ha^ beea irith Kickardson, aad
ikat bj ny laid himseir, wbo ssnt tor liim to
cone and ipeak witb him twiiMa hewaseia-
mined; and if he bad previiled with !lichai4>
SDD «pen thia, then bad been an end of the
biiiinxni, for the retractation «f Anne Tub, aad
AHoa Saith. nod Wclberel, had been as h«
wfiaU hair it ; tbeo fin- tbe leading Inten' ei-
<-'>---' bjbiniuir iti this Cause; isatlMj
Xrreach upon tbe Biihai, sad upon
Powel, and Georie Walker, that
«ei« emploTed aboot Alice Shnitb ; be pro-
cored WeikerelMaabieribe a «Me,wOBldha*e
tbe nfeaniai; of tbe wotds etpMrocatian and su-
bortiniiuB to keexpounded; andtbigis tketnitn
most five sn acoonnt of the proceedings with
Alice Smith to the Bishop; and all this appcu^
cib tipon lib awa ExaminatioH.
I'bcae tre tbi thing! upon the first Charge.
I (ball |n«ee«d to the secnnd Cliarfe, mj
lord bishop of lined n't scandal of the public
JuUkes of the leisions, in Mying tbe Order f
Oct. wai n pockM-onter, t»me in an inn or
an ale htHue, «ad before aaj *itnesses wera
eaamined, Tom tordtliipt may rcBjember,
tkattipoB t^ Cliaif e we mode Proof, 1. That
the matter of the Order «aa resolved by tbe
»faole court, 9. That n hat sir Jo. Mounsna
did •ms at the open sesnoMt, at the desire of
rfM ether justices. 3. I'bal mj lord biiJv>p of
lincaht bad ootice of tbe dae making ut this
Order, -and was tslnjied tt wrs JumI; ai'.d duly
made; jM when sir John Mtmnson whs gone
into the conatry, be qaestinnsd it, that it wns
not made legnHj, but was a pooket-Order made
in an inn or an ale-home; proved by thre«
That which hath Heen said against t]its
Charge, That ike bishop bitd reatou to quevtiua
this Older 3 Oct. for J. S. toM him air John
MmiBson pulled ii out of hie pocket opnn the
lieni^; it sppesrcth by Dr. tantcry, Willipqi
Parbiussn, and Mr. Datlison, that my liird
bisbap was intbnned the Order was daly ninde,
jtt he doih publish it to be made in nu inn or
Nest place they taj Patkinson was a sin^e
witness ; he was ao single witness, neilhir lof
rite Tampenng, nor for itre Scandal: liir ii ap-
pears by Wil^m Aracocks, Iht bishiip wonld
bare hnd the Order S Oct. irapeiiched ; and
thatifhe were examined, beshtitld saynucliini^
RichantsoB said, that tlie bi-hop ttnuld have
bad bim accuse-sir John Mounson for the nn-
clur making of the order; lo as I sny for ilie
scandal, and for the tampering in this kind,
nan m their jdamey tfaey coold I Perkinnon waa not a single witness ; nor in the
tbing-with AEiceSiaitfa, then tbe J afrraing thai the bishop said it had cost him
' ' ~" ' ' ■ ■ ' the credit of f ri^eon, fiw
Pwtoe lor keoffing nf a« Ale-hokie, or petfiaps
larkarMod^Mteviaw; batkawtheprosKUCor
«f te Vane itnilld come to find her, I kn»w
•M: wfa«B sbe was witli her bMlmnd, all his
XI bava been taken in execution,
n tbem ; yet she
n Ale-hause, and
to ti>e sAerwardt gaalk iwwan-like. But, my
lords, they have pressed bs haw we bring rhese
Charges hone upon my Lord Bishop, nothing
faetfauponfaim cbey «iy; God forbid be ^ould
foe lAaiged, unless he be an ftctor or procurer.
'1. Observe these relraDtatiei>s,<H>d tfieseTB-
riattona in the Depoaitinns, they were procured
KtmBtncain tbe cVedh of Prigeon ; ft appeareth
^ tbvae WttncBses tliat4iavebeen read, ont of
ny Lard Biabap's own msuth, thm the main-
IflmH. If this Charce conw
Lord Bilkop, why shnald he conclude liimt^elf
«f expending l,t(K>'. tomainniin his credit; for
h iSd ciKwem my Lurd Rishop, for he "wns ijis
yrinoipal WitBoss in the first Oanse.
Owen Bad -Powet Were the serrants <rf the
aL-*i limtKUt-bepna umj hoti&- } i.OWf.^
T79] STAI^TRIAtS, isCn. I. Hat.~Pnete£i^^tiMmiitBi*<9<irtiMoh, [78ft
lir Tbo. Moooian mnd Saiith botfa ii*e«r the
bishop Slid it had cost him 1/30D/. and Pirkiu-
son ijwBketb of 1,00M. nod aaid fiifiher, thu
tlie Uitbnp -thrmiened to brine him iato the
StBT'Chkinher, becauM he would not comply
with the bishop; but they sajBgHiuMPBrkioton
he was prepared by tn A&i^vit. Foi tbnt,
1 muM remembar unto jotir lordtbtp* that this
AfCdavit wa9 made by ParkiDion upon occa-
viun of the abuse offered bj my tord Inihiip at
the eiecuiioii of the ContBUSiioo; at which
time the secaod suit was not thought of, for it
was doubted whether we should proceed upon
the Affidavit accordiog to many precedeuls, tor
by way of Itiibnnatlou, which wa» the cause of
this itifortDation. Thej say this report might
be raised by Fng«oa ; besides, do time appears,
when this scaadal was raised; they are mis-
takeo in tbii, for it appearClb by Parkiaaon
43 Int. that the bishop saiil 30 Martij. 10 Car.
it was a Pocket-Order, and made t>efbre wit-
oessei were examined ; and iheu Rrcherdson
Inc. 7S, to the same purpose; and £. Smilt
lot. 78, that this scandalous report wu publish'
ed in Match ID. They say here was only a
breach of apromise; ihebithop only made a
promise to sir John Mounwn, that his order
should not be examined aHxr be was jtoue into
the couDtry; and will Tour lordships puoisk a
in>u) for the breach oi a proniM : the breach
of the promiM wai not ibe tiling, M the be-
trayii^ of the truth in tbe king's cause, and it
wa* the policy of the bishop to wild away air
John MounsoD, and afterwards draw k into
qucetion in his absence.
I do oat leiuember any more they hare saki
voRcetning this charge. But now it appeareth
«pan this charn, 1. That the bishop bath
published that ibis order was made in an inn
(II an ale-house, before any witnesses were
examined, to tb» scandal of public justice.
That is the first oSenoe In this second charge.
S. It is scandalous ■gainst hi* own knowledge,
prored by three witnesses. S. His endeaTour
to suborn Parkitison, 1. To send for him befiire
be was examined, and would baie had him say
the order S Oct. was made in ao inn or an ale-
house. 9. To affirm to Parkinson, that tome
of the justices had conftsied as much, ind did
threaten him, that if be did not agree with the
jnsticcs, he should be qoAtioned in the Scar-
Chamber; and when he could not prevail with
him, then lie did direct him, if he were examin-
ed he shnnld answer ouly to the bare Inierr';
aa in these jnniculan my lord bishop is. con-
cerned in thu chuge. Luna, he is concerned
in this also, for be was imployed to speak with
Parkinson, and kept bim from the chnich, lest
lie should meet with Kilveit who was an in-
former; And Int. b, be wished Parkinson to
«nsw£r to BO more than to the bare lat. and
he should be well paid for his pains. So as I
•hull leave this second charge, which doth re-,
fleet upon my lord bisht^ find Lono. And
whereas they have pretended, that sir John
Hounson sbonld be an enemy to Prigeon,
tbcre WM w ptyof m aU of UMt ia tb* boA*}
for in truth be wu tfae beet roesn* to leleaie
Frigaon, to get iha order in tlie KJM^a-Beticb.
The third Chaise is concerning the Affidavit
of Callin 11 May. 11 Car. made « •candakm
Affidavit, which was, that Paikititen told dim,
he came to swear agaiiiN the bisfaop, and that,
sir John Moanion had promised hira lOOL for
it, and be woald twcar home, mid featbcr hia
nest by swearing against my told biahop. 1.
Your lordships bare obsarred what manner of
person be was that made the Affidavit, be ap-
peareth by the seateoce-iD the high cammission
to be a common swearw, b. common bwl, 6tc
so intsnious, ai I shall not-ne«d to repeM the
thing in the senteace ; and (vr any thing said
to support his credit, nothing will swar witb
your lotdehipe juc^iD«Dts. That that Affidavit
IS false, ^>pearttb by Parkinson's oath ; and
that It was contrived in an Inn in the preaencv
of Walker and Mosteiu is plainly (irovetL
Inihitthe Defendants Counsel 6r«C maka
objectiou •njiut the Sentence, that this sea-
tence was aHei snch time as he was examined ;
and though be he convicted of a scandal tab-
sequenti that doth no way blemish bis tesl»-
mouy : 1. I say, by the sentence it doth appear
it was for o&ences done thice or ibur yem
before bis deposition taken; so the sentence
was for matter of ofieace done before bss de-
position, and the senteace is bat declaratory
of wiiat he was then; But they have read five
ministers, that Cadin i( a man of good credit,
and one thu ptcachrth well, and makeih ^
conscience of an oath. 1. These witncMea
are but such witnesses m we praduce tqMn oar
law-waf^er, or for con^urgaiots; the^ awear
only a» in common charity ; every man ts bonod
to think another man honest, unless they did
know thecontrary, and some of these wiimmkb
live a graat way ofi^ Mmw 40 milea. The m
part of their defenoa hath bean to diMiL
Parkinson, and that they ban dwe two wajs:
1. They say be was a dialed penon, Mid
came in a miuister's. habit, end cadad bimsctf
bythename of par«oa Watson, to amrap Cal-
lin, and therefors a witness not to be btheved.
9. They do pretend that Parkinson's depotium
was taken to fortify his affidaiiL
For the firU, this great matter that he thoulil
be a diif aised person, and forsweai: his nunc,
and called himself by the namf ofPanon Wat-
sao, and Catlin not to know him, the matter
was thus.
When ParkinsoB did sec what an Affidavit
Catlin made against him, he did say that ihia
Cadin did not know him ; to that end and pui>
P<»e> going with Mr. Cuhcrwell a gentleman of
prove unto your lordships, that Parkinlon did
not come in any dis^iused habit ; trve, he was
in a black suit, but ui no minister's babit, nor
coat upon it, hut in a Uack suit prOMr for ft
justice of peace's dark: Your luidshipe wiU
rather believe ibat which is judidally awora,
than extr^udicially sp^ikeo. I shall daair* to
read two oi thiM nitncMCt to fiave, tbM Pv>
■Wl] STATE TRIALS, 1»Ch»il«iI. i6!7.— ^r,
theGovtmmeMjlft. [fS2
did Qot come in taij such di^uind ha- ' sage intended for Edward Smith. (3.) Tim
bit; wliicb being read, Mr. Altorne/ pronieded,
■•/'■«> 1- I »t"U obserre, thit the two wit-
nenea. Booth and bis "ife, swear he did ntii
comeinimyraiiiiiter'ii habit. 9. ItappearMh
for balf an huar Cugetler Catlin did not know
Fai^iaBOD, tiU Mr. Culverwetl's taugl
paraon Wauon'i proffer 10 preach
cbnrcfa next daj.
Id this third Charge I shall obaene, bow it
.ireDcheifa upon (hew Defendants, (1.) You
find Catlio Ruillj ofperjurj in making of a
folie Afiidaiit Rgaintt Farktnaon; and [hat be
kaih been formerly indicted of peijury, your
ughing at
It Ciidin'B
high
1 tbe
t the contrivbg of tlie alBdnviL It'
■wwa au one to Catlin whether to swear against
lii Jo, Mounson, or Or. Farmery.
'My Inid biabep of Lincoln (it should Kem)
did Me this as a oourtesy done unto hioi, for
be did intend to give Catlin a living of 801. per
■onum, bat that lie was adviscdbv Walker to
Stay tljis liiiag till thia cause t*as neard. My
lord bisbop writ bit letter unto Richardioa on
Catlin'g behalf, that if any indictment were at
•essiuDs against Catlin for a common ba/rator,
be should stay the tame, and l^owelbis own
aerraot carried the letter. Besides witnesses
■wear Catlin did boast of hit favour from the
bishop ; he bmii^bt gold home with bim, be-
lides iL given him to bear his diaries.
I Eball now proceed unto the founh Charge,
winch standeth tbm : 80 Martii 10 Caroli, a
CoKunissian was executed at Lincoln, and tlii?
waa to eiamine iiim touching tiie credit of Pri-
geoD ; divcii Witnesses were there produced on
tlie king's part. My lord bisbop, and other
■be DefFUctants did draw frinn tlie king's wit-
aeuea what they had -drposed, and tbreateneil
•oiDC of them after they were eiamlned on the
.kinK's part ; tliis is tbe chnrf-c.
Lancelot Harpham te the 94th Inter, saith,
■ppn this depunenl'i relation ray lard bisbop
nilledLunn to call for pen, ink and paper, and
wialied this depooent to write down the sub-
txaace of what lie had sworn, which this dnio-
Bent by bis lorddiip's persuasions did ; but when
bi* lordship had read tbe taiue he liked it not,
but wnjied the said Lunn to writ* down the
•ubstance of this deponent's Kelatioa, widch he
did accordingly, and tlien ibis depoaent sub-
tciibed hiiname thereunto; then the Attorney'
General said; here waa the o&nce of the
bisbop to drawn from Harpham tbe substance
ofwtut he had sworn, tbe charge being for taio-
pering with Harpham, and other the king's wit-
nesses. Bates saith he .was sent with a ine*-
*a{f/t from the bishop tq Edward Smith. These
tilings are laid ai crimes upon my lord bitfaoo
in ilus fourth charge. (1.) In sending for Ed-
ward Sinitli before he was examined, and con-
nyii^ him oat at the back-dcior, that ray lord
bishgp should instruct him what to depo^
feading for him after evamioation, qnestionins
liiin what be had deposed, and told hicn be bid
iworn malicionsiy. Neit place was this mea-
threatenioQ of £dwatd Smith the king's v
that be would sit upon his skirts. (4.) My lord
bithop's sending for Harpliam after he was exp
aeained, making him set down the substance of
his depoiition. (5.) Wiltius Amcock sweareth
that i'owell shewed him au iiuerrogatory ready
drawn to swear unto, and iridied him to be
carefol what he swore, when he was exsmined
for tJie king; For Luno, he said,hi-ucter played
the knave but in this business,
A« (o ihe executing of the Commission at
lincobi u March, 10 Caroli, wherein Kilvert
was employed to attend for the king; my lord
bishop of Lincoln called him hasefeUaw
fellow, base rvscal, proved by thrvi
I'ha charge is likewise against Lunn, wno calletl
him base Miow, and told him < 'if the business
' were over, he should know ha was a man.'
These impmous speeche»from the biihop-niuit
needs dishearten the witnesses that did conw
for the king.
Lastly, As to thfe Charge for undue getting
of Copies, to the intent to make a Counter-
proof of the King's Witnesses. Your lordships
may remember bow Allen gate infbnDatiuii to
the king against the bishop, for the contriving
of false news and tales scandalous to the
king's goienment. The referrees that took tbe
. they gave bin a charge
that tbe examinaiioos should he kept secret, ac~
cordingly he sealed them up, and when his
waiting month wa* done, he delivered thetn
over to Mr. Trumbell; yet by undue means
my lord bishop Rotcojiies thereof. (1.) It ap-
pcareth by sir William Beeoher, inter. 5, that be
was (Dored by several persons at court, to let
the'lnrd bisbop understand the effect of ihtia
eiaminatioirt; and that my lord bishop made
use of those examinations, itappeareth by tbe
proof that hotli been read; and that the seal
was broken off, and copies delivered (Q his
steward. Now whether these be not strong
presumptions, that my lord bishop bad the sight
of them, 1 must leave to your loitiships.
My lords, I have done with the psnicalar
Charges, and your lordships have heard in (he
prosecution of thii Cause, and in the proof ofit,
a heap of Ofiences, all lending to the subversion
o( pobiic justice.; a laboaring, -tampering,
suborniog, sedndng and sanding away of the
king's Witnesses to suppress the truth, to
swear sgainsC the tmth, and to cause Witnesses
to ipoke retractation ; a scandal raised against
the proceedinnof thejuatices at the sessions,
and m particular an aspernon cast on the per-
son of sir John Uounson, as though he had
made tbe order in an Iim or an Ale^nuie, be-
fore any witnesses were examined. I hope
your lordships will dear him in his. reputation,
that he haUi done nothing in this cause hut
what becometh a peston in his place, and what
at lotber times batb been dope by him andotbcr
justices in a public manner. My lards, these
OXaiett, if they were comnitted by a4 onlt-
ffia] STATE TOIAI^a ISCii.1. l^il.— nvceedtngn^aiul the BiJafti^LmctA,, [«»
■arj person, are great crinn in themselvn, but
beinic dnnc bj m; loril bishop of Lincoln, wba
u pK^aCiH, lo be a guide, n light, ft judge
Miitiu^tl« king'i people, und lo tnvr a superin-
tendent cure of 3Uii(s nitliin hii dince^s, these
thingii ^-ORsidered in hi> pecBOn must needs ag-
'erxvala hii ufieiicet, for him tb«t shoald be a
[igbt. In become. dark nasB, aod a guide m l^arf
fBTD into error, r jndge to oreiteia the course
of ^lutice. in suborning of WHnc»e&, jicc. I'hne
tiuogs iftbej be Dot remedied will draw upon
tliis nation, that inramj thaL was Ujion the peo-
ple or Greece, that tbey wuulil buy and sell
testiBMitir, dan mNtuvn tnCntaniun : But
what fiiUuwed upim that, but the subversioii
ftnd Tuin of the cnmmon-wealA t For bim that
hath this luperbtendint cure of louli, todoanj
thing for the destroying of mens souls, it is an
hi);h ofience. t'teta lib. 5. cap. who writ iu
thctiMeofE. 4. SiPerjurus.&c. That thcman-
aluyer killeihtfac body, but the subomer killeth
his own soul, and the soul of bim that iwearetb.
1. Against my lord bishop I pray Judgment,
tb»t be mny be deefjy fined, end receive a
dediralory ScnteiiRe of this Court, b» un-
uoriliy ol' any EcclFBiiistical Dignity or Sncred
Ordert, and to be recommended to the tligh-
ComniissitHt for tbat pnijiase ; Pas. 34, Glti.
in a suit in the Star-Chamber a^aiort the
liiibop of St. Darids Kir contrifing and pub-
liabing of a forced Will, Ite was here fined and
referred to tlic IIt"li CoEnmiasion Ibr fiirtber
proeecdingt. — 10 Jac. John bbitnp of
Down wM convenCed before the High Com-
mistion, and wii there detraded for suborning
of WitnesMs.
Third place, I desire not only a Reparatinn
of the credit nf ar Jo. MuunMn, but damages
for the scandal; and dMOgh he be neither
Enrty nor rtlatoi*, yet damages bare been given
y lliit r^urt lo a third person. — Mich. 31
£lii. Three gentleinen ibit were no parties
bod 300'. damages gireti then, as in ihe case
of tlie Icing's attorney 'against Pricr, damages
were given to asharifTthat wnsno party,
Mr, Attorney 'Genera] having ei>d(.'d Lis
Ilsply, tlie court proceeded to pass ibeir ceii-
pure : and tlie lord Cottington first beguo and
ipake to this eSect :
" My lords ; The
! are now oiec xboat, lo put a pe-
riod unto wliich haili ulcen up in muoli tine
vlready in this Court, that I jntet)d to lie very
riwrt m what I bale to aav. If we go to the
trell'bead, and look at ibe original, (from
■rhance Chesa foul xreams tune iswiadj it is
vary small, aad the incoaTeniroce* tny lord
bath fallen into, are rather of his own seeking,
tlmi any ways properly offered tmto him out of
tha formez pataacea, which touched his repu-
tation in tti» cnart : buH-ever that maxim
■tand* ttac, ' Quim]. eat liibricatw suk for-
* tuna.' I am sure in thia, timi thnaach the
nbole paiMge and tunretit of it, he hath aon^
•■dwraui^lhit owiioaarthrow; andlani'sorrv
d»t w gmt «. fmmm, fo wiM^ Md r mt^
aiperienced a man, and OM who hath sate b*ra
hioiseif, ihoold now cnme to be caavuTvd for
*ii foul crimes, mi fir aiibeseeming bis fynctioii,
and those dignities be hath been irraced withal
in this com moil wenlth. I lind (all the way)
several undue practices, many heinous at-
tempt*, find fbi|l fanliB in his agents, counte-
naiii'pd (nay maiiituiurd and set on) by his in-
stieHtion, lor which I bold both hiiD vid then
worthy the censure of this cunrt.
" i.prumise brevity, theiofitn- I omit the'iv-
lating of any thing concerning the truth of the
matter, wliich concerned Alice Smith and Eli-
inbeth llot^n. If that PHgeon had been
free from llw getting of tlie bnstkrd, andthat
be had sulfned that way iuoocently ; it had
been batter for my lord uf TJncola to lave ad-
tised hun to a patient iinderiEoing that aHio,
tion, and have nopt the pubhe drfoinalioTM,
which toight grow thoreupon, with as little
noise as he might, • Qaam qneat tnininto :' bat
these tin which follow after, aod the gr«at
eipencet which my lord bishop of LincDlo
was at to preserve frigeon's reputation, plainly
shewed there wns somewhat more in it than
ordinary, when, rather than that should be
lainied, my fonl would abMlotdy arerdiniw
" Prig«iD was to be a witness for my lord
bishop, nnd « main pet«on he was, on whom
he d^euded for (he cjearing himself of tbfrae
charges, which your lordships know he wai
taxed ttithal, bv (be first bill. In the mead
time a bastard is laid unto him by FJizabeth
Hodgson, labich In my lords estimntioR nat
much disabling lo I'ngean's tesdniony; and
therefore my lord bishop wbat dflth he i Ha
not only labours to suppress a tnitli, and- to
conceal a fault in hii nitne^, but he will baT«
him ditcbar^ed of it,. ■ Qao Jure quave irijuria,'
<• Hereupon the pr»ceedings of ihe Jasticet
of the peace must be either made none, or put
out oforder, so that tliey stand instead of none.
A new lather mutt be found, and becnust;
there was a commiasion to be sate upon, and
witnenes to be examined, some must be -ab-
sented till the commissi(|a was over : others aiv
deterred and tbraalencd, and sir John Molm-
HM and Dr. Fartnary mutt be held for to act
nothing thnt most stand in this cause, (though
in the public sessions) but their orden in tint
cause arc pocket-orders.
" Owen and Powel, two semuits to m}
lord bishop of Lincoln, they set Hieir witi to
wort: to convey Alice Smith out of the way,
ai>d that with rewards of no smalt ralne.
Lc ters are written, and much ado there is ;
the several misdoneanon of Lunn and Walker
are apparent enoni^h ; and Ca^lin he otimes not
behind the rest, nor mutt I let him pan, d-
(hnugli he hath brttcr hick in the carnage of
his knavery than a«y of the T«t ; and for ih:
procurfng, gaining, and keeping of (trpo«itioM
from ibe ciutody of the oouni^^b)e, and tb*
clerks there, it is plain cnoagh, { njl) i^^kf m
w«nl |ciod, mi gg to C«RiUTh
7&5] STATE TRIMS, ISChakl^I. t637.~fyriamd4aitiagthe'GoBmmail.lrc. [7Sa
" Cadwallader Powel I fine at 9001. Owen
1 fine at u niuch ; George Walter Biid Cattin
M SOOJ. B-piece.
" Lann, (vrlii) is an agent in all ibe business)
I bold hiin unfit fiir to be an ufficer Bay mure,
(benDw leiii| a Proctor-ttegiMer) I fine bim at
300/. And lur my lord bisliop of Lincoln, I
fine bim nt 10,000/. lu i!>e king, nnd to lie
imprisoned in the Toner during hia majeBtj'n
pleasure, and to be suspendei^ tram all liis ec-
clesiastical functionii, buili ai ^rin tt beaeficiv ;
•nd 1 refer him ovir to tlie lligli Commission-
Court u CeriHure bim as tliey think fit coiicern-
Mglits degrees, and to repair sir John Moan-
ion's repubitiou, topay hioi for the iiijurj'done
to hiin, in punicalar, 1,000 marks."
Sir JuAit Finch. " My lords ; This Cuiue
luth held us alrendjf nine days. I End in it
■iic CbBrges. 1. Ttie Gn.t and tatutt i* for Inm-
pering with Witnesses, to retract their Testi-
•Jociog them not to depose at all. 3. For un-
due practising to gain a sight of some Eiaini-
nations kept in the Council-Chamber by the
Clerks of the Council. 4. For pifpnrine and
iDstructiog Witnesses by the eaidExnmtuationi.
5. PeiJDi7 in Catlin in nn Attidavit, nnd subor-
nations tftereor. 6. Other undue proceedings,
wherebyto cause wi(iie»rs toiay, tlun they
did not remember, Or the like.
" I will only insist upon two things. 1. How
this trenched upon my lurd bishop ofLinoln.
2. How lar, and in what mancier he pursued it.
" I question not whether Che child gotten
■pon the body of Eliiabeih Hudgsnn be Prt-
cean'i, jea or no; howerer the Justices of the
Peace nt the sessions. Dr. Topliam and Dr.
Fannary giTe up, that it is laid to jiiin : yet
I^lly Pri);eon is free, for by a Statute 18
Elii. thoogh the Order he, jet an Appeal may
be mode. Now in the secotid place, «hat is
this to my lord bishop of Ijncolii, ulrun pater
" The Biiibop is taxed Ear scaodaloiis Words
PriTy'Counsellor. Nuw Prigeon being a Wit-
uess, must jnslify that no sucli fault slipt from
my )>ird Bishop, his testimony, which seeius to
be suspected, and wli^ } not for tlie having a
cbild tatbcred upon him, but for that be goes
•bout in publico to suborn witnesses, and to
nrest the truth by unlawful courses, and it in to
be tlioaght tliat he, who ivas of sucli an evil
Gonsoitrncc, as that be would cause others, by
any wny of bribes, gifts, threats, or tlie like, lo
liinwear tliemselies, and hazard their sauU,
tniglit liimself easily be uinipered wiihsl to do
unjust acts, and lo take that false oath also by
faimsel^ being led to it by bnpes and rew.nds,
wbidi he by alt means souglic to procure in
others, fur his own safety. — Now ll my Lord
Kahop had used other means, and gone the
right way Cotnaintaiajhecredit of Ills witnesses
'i a fitir roaiiuer, it had been commendable
bat whether, ht did to oi
■f(«r. .
VOL. ni.
o it is to be enquired , do much with :
' 'ord fur I ■
""J
ihvajs necessary in this
Court to havo a truth proved by two or ihreo
Witnesses: men will be wary in Briherj', aud
Eitanion, and the like, to do it in public, or
liave many acquainted with those' works of
darkness. And sin^^ru Tatit many times
shall move aud induce me verily to believe aa
act dune, when more Proofe are shunned.
" But to cume to some of the particulars. I
find here, that Wetlicrel hath been often tam-
pned withal, by t»o of the bishop's servants,
Owen and Powel, and tliere whs a note shewed
to George Walker to enquire of Wetherel,
whether Prigeon htid done uny thing with him
or no?— But to take olf this, (&lr. Recorder
saitli) tieoi^e Walker is ifinfu/arulJ'ttlu. ^'ow
it's plain Wethervl swrais punctually, that lie
■(■ei niih Prigeon, and was advised to speak
" lor 'Alice Smith, she deposeth that Pri-
geon wished her to will ICIiz. Hodgson to lay it
to somebiidy else, nnd he wuuld give, her 9Dt.
and so doth Anne Dove ; now Alice must af-
icrvards equivocate, and laj, ihe was pruiTered
money to get berto lay it on the ri^ht Aillier,
which to induce her to in no hurt. — And 1 find,
that Alice Smith is carried away on horte-back
hy Powel, and absented till the conimWion hob
set, and "BS past, at Lincoln, and then brought
back again by^ Punel. And I find she went
out pour nnd needy, she returns well clad, gen-
tlewoman-like, Dud able Co lend 8/. at a lime,
who was, before Owen and Powet tauipered
with her, so poor, tliat her goods were di^traiu-
ed upon fur reiit.
" George Wulker, he saiih he could do no
good n.ith thcni, and so writes lo the bishop.
Now fur Itichutdson, the Divhop (old htm, tliat
he knew the orders thiit were niade at the ses-
sbns, and Kichardsun is tauipered witlul to
suppress that order, and told, that if he nould,
he might do the bisiiop gEod service.
" Now for Liiiin, I liud him run through
with the bishop ia all the case, lie teaclieth to '
sinoiher and to , equivocate; lo that I find
Powel, Owen and Walker, guiUy of the first
chari;e; Luun I thall sentence, but not for tliat
■' Now my lord himself, out of his oitd
mouth, professed to t«'o wiinesies, viz. to sir
John Mounson, and -.inc Edward Smith, chat
to defend Prigeon's credit it had co»c hira
1,000/. ifnot 1,^00/.— My Lord Bishop ejicepta '
ngniusc some Witnesses, as Bates 1 tiold him
fiiulcy, and fur Mr. Kilvert's misdemeanors,
chuughhcdid provoke my lord, yet be shoalti
have fotbnrn. It »as not so niiieh to allroat
my Lord Bisho|>, as to animate his uiciiesMi*
for the kiuj;, which tlie presence of so great *
person might have daunted.
" And your lordships know, that in the cir-
cuii, if H great man have a cause at the bar, ha
is not to lit on the bench, his nod or frovin, nay
presence, (by way of observation) may
iferior peraons. I discomini
pasbion, and cemmend Kilrer
7S7] STATE TRIALS, 13Ch.I. iGi7.~I'i-occeJi»sia^tiihehukiyiijflMnlM, [76S
for tl>e walnus pmsrciuiun of liit couie. I
mutt dear sir Joliii Mliuu>^)n, mid fur PoititOD
disgiiiiii'g nf liimsrir in tlie Iiuliit of ti miiiistt-r,
(init; it iK.nbliitltliey bHdtofilid uul xliai uiibbt
be ;) Gilt llie mailer vraa apparent la all itiej
know lie wns ■ ciiunlerfeit.
** And Tur Cnllin's tesiimntiy, I nelijh it tint ;
but I find ni.v luril tiiuiptriDa with Siiiilii, with
Edward Smitli. He must bebrouj^lit in by Mr.
Mostrin, mid at the buck door toi>, and after
tliat he kid taLen liis oath, was (old he had
gnoin mnliciousl;, nnd was advised 'befure-
haud what to saj, and the bishop chid him, aiid
lukcd wliy lieivnuld be svuirn,and not acquaint
him, and let liiin kniiw beroie; and there is
mnny iironfa of uiy l/ird Bisliii|j's dehor! inland
terriiying others. — For Watlier, I $^ull not
(.'ensure biiii, being not the innniier of tliis
euurt to run«ure, when he is not charged with,
any pxrtiiular, but in geiX'rni. — I'or Lunii, I
Gild hini tlircuteoing Mr. Kdvert, and I find him
tjiiiperiiig divers wnys, and getting tlieiiriiiii^t
frrjrn the rierks. — I agree with ihv lord Col-
tingtiKi, and fine him 1,000 marks. I clear
Mubtein. Cinliii I lea\e wiih a ironUjUtt;
nnd do censure I.uiin to I e di:tabled, by wuy pf
bis pn>fe$si»ii. titlier to be rettisiet or giructur
any mure, — For Codwalladcr Ponel and Owen,
I njifce with my lord Cottington. — And for my
Lord Bishop, t censure him 10,000/. Fine to
the kinjt's luynty, to be suspended ob imni
officiu cl htnijicio, during his majesty's pleasure,
and liliewibb to be imprisoned in ihe Tower
during the king's pleasure, as my lard CoiiiiiK-
tun .said before ; also liir ii^ repair tin; credit of
sir John Muunsun, I line him 1,000 marks to
bim : and sure, my lord?, bis person doth not
dimmish, but rather n^ravoie his faults : fur
Eo be faulty in scandulmngliismasier, and then
~ suboi'iiiugly to bolster up his fault, by auch
£ross and unbeseeroing manner, is uurse iu
hini tlian it had been iti another man.
" For as Mr. Altbmej well noted, fur him
th^it is set to have a care of snals, to be corrup-
ter of them ; for him that is sft as alijiht ou a
Jiill, to hide the truth ; I cujl to mind his great-
ness, his place and his dignity : but had he
lived a private if-norant man, I should have
gone very deep with him; but lie that hath
tnonledge to rectify liimielf, and liath snt in
the place to direct consciences, tn wrest and
vironfi consciences, I must go as deep full in
every thing »■ my lord Cultiugluii, and I shall
here crave your cicuse, and cud,"
Sir John Bainilon, " I believp, my Inrds,
thut the Lui-d Bislt"!* is Eultly of three of the
Charges, and I cnriceive lie had a siglit of' tlie
Writinns, from the Council.Charabtr. — I find
him procuring: some to absent, lo deter others,
■lid all to support Prigeon's eiedit. Alice
Smith first dcpossih, tliat Prigeon oficrcd her
5'. to prevail with Elii. Hodgson to lay tlie
child to any other man. — Nuw my Lcrd Bishop
he must inienncddle to snppnrt his -redi;
disallow of his tampering wnh Wetbecel .
wish a witness to tcep away, or to wish bim
to Kiy les-i than he knows, is nntJusti&Bble; it
not so uiucli concerned him, but it teems be
thought it dill, and therefoie be must spend
l,000t. or l,ltOOi. to make thai good ; Sa sir
J<ihn 'Muunsun and Alice Smith depoteth,
Alice Smith is fetclied, and cariicd, and main-
toined, enriched by the bishop's serrant*. I
find many sbiils iumy Lord Bisnnp to c&ct tiii
de»re ; it's pUin she went away poor, return*
Hell. Weliietel must be tampered withal, ia
also plain by several coofi'ssions.
" Now to the second Charge, the alandcr it
laid on the justices: Sir John Honiuan sat
openly in court, tlie order apparenily made, yet
the bishop strives to suppress ic lie nsctli all
the ways lie can, either by fair enticements, «r
by foul men.-ices ai:d tbieais, to have tlicm in
iliC Stnr-Chainber, &c. — Now, my lords, tsoa-
ever he prtpoiiled not, yet lie attempted, be en-
deavoured Eubornatiuo of peijury : And wisely
did Mr. Ailorney to lay tlie charge in that
manner heilid, for undue and unjust undertak-
ing to subura witnesses, it's a crime equal,
though he effect it not, yet it's nmUfifiiaii con-
drmnalionii, anil is cen-iurabte. — I find my loid
bishop uf Lincoln niudi to blame in taroperiuiL,
persuading, threatening, and diretting of Wit-
ncsst'fl. A fuul I'aull in any, but in hiro most
gross, who h'llh curam animomin, throuehoat
uU his diocese. To destroy souls is most o£ub*,
and to be severely panished.
" To proceed therefore to Censure, I meddle
not with Bales his tesliuiuny, but 1 shall fine
Ponel SOOi. I clear Moateiu ; And tor Lubd I
shall fine liim 1,000 marks, and to be disabled
also frum his funclinn. And fur my lord uf
Lincuhi, I bold him not 6t to have tlie cure of
sovU, and iherefutc I do censure him to be sus-
pended 'lam ab Officio, qunm a BeucGcio,'
and agree fur llie Fine of 10,000/. and iiopri-
Bumnenl during the king's pleasure. And for
sir John Mounson, 1 find he hath done nothii^
but.n9 he "ught, and therefore 1 hold it fit hn
credit should be cqiaired, and to that end I
flial] agree with my lord CoitingLon topve bin
1,000 marb."
Mr. Secretary Wmdeltanfie. " It is needless
forme to relate the bnsi^ess, or to declare tbt
name of the crime for which this great person
is censured here in thii court. To free your
loidsbips fr'itn any further trouble, having seri-
ously conMdered the matter, I do find not only
my Lord Bishop liimself, but also his agents
faulty; and therefore for the fines, punish-
ments, and iniprimnments botli to him and
them, I agree in all with my lord Coltinglon ;
Johri Mounson abo."
and for si
Sir TluiTpa, Genam
Cutting to 11."
The Ea^ of LinAty.
lord Cottington tn mnuttu
The £ari of Anindtl. " My lords, the cast*
is i;reat, the person eminent, the proaecutnn,
person tlia
" I agree with inj lofd
" I do agree with my
TS9] STATE TIUALS, ISCharles I. lO^iT.— /or scandalising lh:Gmerntnail,l(c. [700'
of any thi'n^ lie enjoys, nor can expect to get
any tliliie tliut U unjustly detained and with-
held from him " ' ' -
odice under tvyo famous kings, and now comes
to be censured for undue proreediiifisin mniter
of justice. He »ho hnd the prolcctiun uf
ecjuity, now iiaili turned to be a subverter of
tijhr, und au iijiprtsscir of the truth, by cnnceal-
iiie lier fnitn tluit $lie dol^hla in, the li|ht : un-
duly mennctii);, deterring, and dclarnng nit-
td JO grent a persiin as the greatest we have tq
da mtlial, under God, on earth. I protest I
speak it with grief, I am sorry fur his perK>n,
much riiore for his profession, no child beiiif;
more reverend to Rnioiher,UianI am tender of
the chiirchfand of Ihntconl: But -upon such
Ueraithei to f irbear censure, were to allow of
them : [ do therefore agree with my lord Coi-
lingtoD in the Gue, im prison men t, and in all the
The Earl ot -Miinchtster. " My Lords; I
canikot but admire to see, that a muD of titat
emineijcy for parti and furtune to overshoot
himself to fur, and to be tratisportcd in so ig-
noble n way, as my lord biibop of Lincoln liatli
been, that ne nould undu his own to maintain
the credit of another man. Give me leave a
little to unfuld the occurrences, that it ma^- ap-
pear bnvr this cniae abaut, and what occiuinncd
this bis so gross an errur. About the fourth
year of his now majesty's reign, a hill was ex-
hilited Into tills court n^nJnst my lord bishop
oTLincoln, thecomplaint was about matter of
state 1 now Prigeon tvas a main witness for the
clearing my lorn from being held guilty of wliut
■ IS ivlletieed. Thf Bill was slow-paced.
8(h 1 and in February following the bastard is
born, here is a touch upon Prigeua's credit,
tim matt«i not to the bishop for oi^ht we
tee; but io May following it must be laid' on
another father, and one Kione is found out for
die same purpose, and it must be fathered on
him. The justices of assise publicly ordered,
and set it down, that it is laid upon Prigeon,
and hereupon be is thought to be disabled of
his testimony for the bishop of Lincpin, if he
hare occauon to use him, for bis clearing in
case of those accusations and informations luid
agninst him. — Whereupon this Prigeon must
he set uptight, and made an honest man, and be
rectified, though it be by indirect and unlaw-
ful means ; nay, most i)n conic ion able courses,
by wresting the consciences, bKH falsifying oaths
for the same.
" No*, ray lords, your lordships well know,
that every man's state, every man's credit, bis
postetsioos and livelihood, much depends upon
oaths; for if not upon the jurors, yet the wit-
nesses in any case of evidence, be ii ftii; matter
of title, cr matter of fact, if tbey be by sinister
courses, aiid b^ bribe* ond threats, be it for fear
or for love, if lliey be caused to swear against
their consciences, and that tye be taken away
whereby tliey stand obliged before God and
own to give right to die trnlh, no ana is sure
-And I Knd my lord bishop much
} blame, and iiidreil no more than an iibeiter
many pussuges of tliis cause teailing thii
«ay.
ix faults he is choked withal,
and I find bim faulty In three great ones. —
For his tampering with Witnesses, it is plain
enoutib, and I am sorry it breaks out so m aU
the way as itie cause goes. 1. In withdrawing
Witnesses, and absenting them oat of llie way.
S. In preparing, fiitiug, and disposing Wit-
nesses to his own ends. 3. In di lemn^ tliein
before ihey are tn lake Oath, ond threatening
them aller. 4, In aitUn^ out unlawfully, by
indirect and sinister coursvs, what Evtd<.-iiie
and Proof was given, so to be belter cn:dileil
to have cross. Oaths mid Prooi's agiiiiist the
Kvideiice that was bel.ire. 5. To cause wit-
nesses ro speak Ilss than liiey know, and to
conceal the truth, or at ietist to vary from that
which tliey had Ibnnerlj sworn, fi. Ui.'tling
the cojjies out from the L'liiiks of the Star-
Chaaibcr, and keeping them a loitg time I'niin
that pluco, where ilipy ought to be and reside.
" Now for a man of art, of a prompi and'
ingenious wit, a well experienced innn, who
iiatb bei-Q a Judge, and well knew the incou-
veiiicnces of these defaults, and ilie grossn's*
of them, to run intn iht-m so violently, and an
foul, I cannot but admire, and much pitv him.
— Nay, he duth take Upon him to detuiid, and
to patronize Catlin tio, aithough it be abso-
lutely in overthrow and undo bnnself. But al
it is suid, ' Nemo luditar nisi a seip^o,' if mjr
lordship hnd not been over-Uusy tor to do thos9
men gotid, be had never dune liiiusclf thic
" Now for Kilvert's alTrant to him, I must
neeifs say it may seem over-muth in tlie place
where it was done, being in tlie cliief place of
the diocese, and to his own person: but being
it Has in such a cause, where witnesses nera
to be heard und eiumined for the king, and my
lord being a great man in that place, I pn»s iC
by, us his zenl and earnestness in prosecution
of the cause, which miglit else have suQtred,
had be not used the better courage, and put
the better fjcc upon it,
" For tlie getting the Writings from the
Council-Chamber, it is plain enough, and tbey
were absent long enough, and whetiier he hail
used or perused them it matters not; surelj
he would not have them gotten from tlieir dne
statiim, and place of abode, only to lie by bim,
but that he would make use of them. And I
must needs commend sir William Beecher's dis-
cretion mid ingenuity fur his courage in tliat
particular.
" Your lordships have hc«rd nireadv bv the
two Lnrd Chief Justices, what Uie ui'iture <if
these crimes are, though it be imi suhurnHtiiin -
of perjury, jet it is loamfesl injury lo the wit.
nessini; of ■ truth; and I fuppose botb they
'that do prevtil, and Ihey that are uvet-tulea
791] STATE TRIALS, 13 Ch. I. 1631.— Proceeding! agaaiit the Siilicp<ifliimh, [_'i9
•nii won to such diihoneit cnursei, are much
raullji ; and [herefure I sbail agree with my
lord Cottington fur tlie Fmr upon the two ki^
vani) iif niy laid bishop, Ohcli bikI Powel.
And aim I tine Liinn in l/KM mnrks ; I dear
Alostein, And I inuit not, let Cntlin cicnpe, if I
enn legallj do it, but he lialh better Ibrtuiie
(h:in the rest, though J think not a wliit leu
culpable. — And for my Lord Biihpp, I must,
f.ir hia line, imprisaninenr, and suspension iV'im
his di^nitit s, ullices, and benefirts, agree iviih
my lord Cotiingiou, and sa in all tlie icst."
The Lord TretiiUTtr. |' My Lonls; This
C'nuse hnth lield a great time, your lorHihipa
have had much putiMice niid great ntteniioo,
and applied youri«lveG io give enr to t<ie dc-
Itnces ihut huve been made therein, nliicb have
hecn very Hiell porlbrmed bv tlie counsel on niv
hard Bishop's bclialf.— Tlie rause is iireut, a
grcut njon that is lliii day Bentenceil, and in a
tniiner of very hi^li naiuri^ tor me, niv lords, to
run Oier tlie sereml chaises, and to enplain
how und wherein I find my Lord Bisliop and
hik agents culpable, and very well du^erving the
censure of this court for their crime!!, it vier«
hootlrss, nay nltngethrr needless lo insist upon
ihe tampering witii Alice Smiih, and Weiherel,
with ihe undue practices of Luim, Ovren and
Powel, ihew tilings have been copioQSly set out
before, and for me to repeat, or to make any
relation of my abserVatiuns in the occurrences
and pastimes of [he c:iuse, it vreie but fctuia
egfre. The busineu falls out very nnhappily,
find all the way carries with it' a reliiiti. My
Lord Bishop's encouraging and setting on the
several a|>ents, tliac were used for the clearing
Itnd jostifying Prigeon's reputation ; so that in
the prosecution of the matter, probable sur-
mises coroe lo be violent and forcible instigB-
lions ; und whereas my I,ord Bishop strives to
suppress a faull, which is like to redound toPri-
Keon's disesteem ; my lord utterly overthrows
his own credit, an<l lahouriBg lo take a slain out
of another's bee, opens several scar; and ulcers
in his own. — MyLordBiihop mislit better have
let tlie trnlh have been bolted our, than so smo-
ther it, as to injure his own reputation, and
eauie himseiftu undei^o far heavier and fouler
aspersions, than the crimes In hii witnesses
could ever have hronght upi>n them or him. —
I much pity him, and I am hauitily sorry that
he was BO over led wifti desire, as so hotly —
pursue a thing that might uith a great de
uf more discretion have been let alone. —
And tiulyl conceive it is nnw apparent lo him,
and be himself ia sorry for liis own intem-
perate prosecutions; and I hnld no censure
can be so heavy lo Mm, as ihnt your lordships
•huuld liold hlni censurable, and that he should
now incur ihe dislike aud condemnation of this
court, wherein he bath sat as eminent in place
and dignity, as the rett tliat mw are lo pass
fienlence upon him, — What Censure therefore
my lord Cottiniiton belbre me lititb given, both
fir Luim, Owen, and Powel, biith m number,
noe, and weight, I agree umo; hd^I so 1 do also
for the fine upon my Lord Bishop of Lincoln,
his imprisonment during the king's pleasutr,
and the rest."
TheLordArchbishopof C»nl«-tiiry. "Sorry
am, my lords, (bat such a inan as my Loid
ishop of Linculn for prolession ; and sorry
that he, being so wise, so discreet and undet-
standint; a man every way, should come lo stnad
culpable of flich faults as should deserve the
censure of this court, and in this nature, that it
should fall not that by being over-actiie and
over-doing businesses uf other metis, to do bit
own, nay even llierehv also to undo hiraielf. —
We have adversaries loo loo many ainoagst our-
selves, but this day's work opens a way for tW
llomaiiists to take advantage by it, to see w
eminent a person as a bishop, and to emiaeata
bishop us he, to become ihus ceniursble in-i
thill)! of so high n nature in this bii;b ciiirt, it
opens way I tny lo ibein of r^oictne, whicbl
would to God had not been at all, or at l«ut
not by bitD.
" when I look upon and consider his eiceU
lent parts, both of iiuture. and nii-'bieved aato
by study and art ; when I think upon his «i»-
dum, learning, agility of memnry, and the eipt-
rience thai accompanies him wttb oil those fd-
dowmenla, il puts me lo stand ; that sfter be
had been overtaken In one error in the first
caiiie, lie slioutd not have recalled hiinwlf, lail
made a stand, but ihai he haih now run iaia a
far worse, and niore dtsperale a one in ihii
cause, by obnosiuui and criminal wnyi, even »
a very precipiiatjon and donnfjll of himself and
his credit. What thoii|b there was soinfqMs-'
lion made, and some proofs on foot, wherehy
his loyally to ibe kin^bis inabter seemed to be
in dispute, and his diicretion mi,{hi hiiTe some
ways come to trial in matrer of words, discover-
ing his affection in some ranllcr of state? must
he seek unlawful means to procure his nciions
and words to be Uwful, and leave the course of
a good conscience to bolster up a fancy ofinno-
cency in another man, and make bisisrll' pIniiHy
faulty, for tu make another man leem free fiwl
shamed I could wish hearlily from my heart
(however this caute be, let ii be as it is) that
his deportment in passion had bten like loihit
of St. Cecilia. I read it in a vei^good auihofi
and it is not impertinent, nor noivorthy wEiaiso-
ever paliencf, «hen a great slir there vat, aa''
.all the stream andcurrriit ronquiteaKaiDsther
'to bear ber down In a most furious and liolrat
manner, she mildly in the beat of ihee slonni,
and when tliise billows seemed to over-hflm
her, and hide her from all hopes of being sif-
mitted bearing ber to plead hc'rinnol'ency,muc!(
less lo gain success to ber detires. It being wM
her there were many witnesses against h^r, but
none tlint did, or would be, or seen id appear
for hfr,or in her behalf. She "wd thesayinj
of holy Job, ' Testis meos e*t in Cof lis,' My «it'
nrssisobove; and so It fell out,fi)ra> Ihestoiy
saitli) when ihe matter cume to be scanned, th«
wiiiietsea that were against her, (by what uieaiH,
or from whence, or buw, I know not) hgi tbej
were so daanced nnd struck wiih such an
■(nn7emeiit, that it was their gerprnl vote, ' No»
' nihil habenius conlrn Clcelmm.' I Iibtc it in
St. AiigiuiUae,! Fntlier o( ilicChurcli, MiOic au-
ihntity there is no doubi of, he being held learn-
ed aniuii|St thffbeitofthnt time. III). 1. ■ Con-
' trn hoerelioum donatum.' It had been better
with nty Lord Dishop if he hnd had sach a
cause; I am sure if the circuiiistunccs oC hii
beliaviour had been more tempemie and mited
with more paLience, the event could not h«»e
bean so unlucky, and his Censure so &h'arp, as
•T like I
0 «y n
iV lords, for il
ndtii
rsupn,
793] STATE TRIALS, IS CiiablesI. IGST .—for Koitdalkhg i!,e GoBtrmimt, Ifc. [794
iftty and auarance have perfunned, insomoch
i 1 lint by Ills itilTandstublrfirn l>ehaviour,-tLeta
as no way hut to have the Liu^n»s full; ript
up.heard, aud decided.
'' Yet ihere were not vrnntlne divers ill d'lt-
poFed persons, nho bruited it £ith, and very
boldly gave out, ibnt my lord bishop of Lincoln
had Dot fnaile any fault, or done or spoken
ouglit, but that which be could stand unlo, and
needed not to be aabamed nf, ouly that lie ttat
ricli and niuM be let hlooH, lie mij^it nell spars
it, and the king warned 10,000/. IT 13,000i. and
iio he ehoutil Imve little said to him, if it was
nnce condescended unto, and either given by
him, or gotten from bim. But howsoever these
reports go, the king is j nit as be is honour-
able; mid though he was inchned to merey
(fijr so the bishop of Linculn had found ii, if
he had sought il seasonahly) yet now you see,
tbere is.couie, and just ciiute of>c«nsure, and
in a very liigh nature of desert iu him lo be
senienced by tliis court.
'< Now fur the nature of the cause, the seve-
ral Charges of the proofs, and llie defence!
also that nave been by the lord bishop's council,
hath fully nnd amply been opened by the two
lords cliief justices, and if I should attempt any
iMng this way, it were hut needless labour to
myself, and would breed a ledinus irolililesome-
neu to your lordships. dtctuBt dicirc would be
all, when I had snid all,
" I leave to meddle with the manner of the
proceeding*, and must give Mr. Attoritey a
great and litrge cominendatifin, and Mr. Soli-
citor also for their wise stating of tiie cause, and
for their wisdom, wii, temper, and pmience iii
the prosecuting of the saine. — Tlte niatter is
ill, and howsoever' it perhaps be not suboi^
nation of perjury, yet to E^tnperwith wiineiiet,
lo threaten, deter, afiright, corrupt, or to silencr,
or absent those tliat arc to witness a truth,
and to ^ve evidence in a court of ju»tice, are
fjuidem tialar^f a veiy foiilaciiroe end a iniMt
odiuus and detestable limit, in any mnnof wtmt
condition >oever he be : and if these tilings be
sutfered and may go unpunishable, no «tate can
stand, and il de^itrOTS the interest of nrum et
Ilium, nnd no man is sure of whut he Itoldi, or
can say ivhellier be liath.an estate or no.
" Zl is a point that ruins all rigbt, and is tbe
utter enemy and subverter of all justice, tmd
«*eeded out aud prevented by severe auimad-
vetsion and correct ions wken it happens to be
found out. First, It destroys oiasimuta mnit-
i/etum, tb» f reat Conimnndmenl given by t,he
Creat Lawgiver, GikI himself, ' Thou shall not
bear false nibicss ;' In the 6th of Leriticus, if
a mat) know a truth lie is not to conceal it;
nay, be is to witness it. In the 3id of Exodus,
a man is not in any (»se to bear unjust wit-
ness, and so in the ninth of Deuteronomy, it it
in criiniaalibut, and he that did bear false wit-
ness was to suHer ptr legtm talwiiU that same
punishment and loss, which by his false teit>
monr the other party had undel^one.
" In all the tune tliat pastes troin cb« cr«»
my knees to the king my master in his belialf, [
delivered fur him several petitions myself into .
Ibe king's own hnnd, and I then did thut(nhirh
had 1 known wliat now I do) I should not have
done. ' I sent him under my own hand the kiug]s
answCT upon every petition. And n(ter all
those five several services, 1 must tell you, my
lords, I was liut coarsely dealt uiihal, nay lery
ill rei^uited ; yet was I overcome to move again
St Christinas Inst, nnd I have it under his own
hand, or (if his secretary writ the letter) bis
OKU hmid and name is underscribed, that he
had better end more hope* by my once moving
the king, than he had formerly bail, by the so-
licitation and means of all the firiends he had
at court. — And no longer ago than at Christ-
iDBs list I moved the king my master again
. ia his behalf; and then (had lie solicited that
which wns intended lor his good, and pro-
•ecuted the same with submission) it had in
all tikeiihood gone better with liim tlmn he
cootd have expected, nay, I think, as the
case stood, better than lie then desired. — But
a cross business cume just in tlie way at the
»erj time, (of which your lordsliips, or the
(Dost part of yon, I am sure, are pnvy lo) and
had nut I iben mierpo'ed myself, (ihu Ling be-
ing then ^ eSBspi rated agaiost him) lie had
fallen. But to let pass my desires, and the ear-
nestn^ss I used, nnd the lenderoeits I had, lest
my public aspersion should have been opened,
»ad such lis could not have been wiped away,
but needs must have lell a stain to my coat. .
•' I must needs say thus much for his ma-
jesty, be was very inclinable to have had a fait
reconcilement, M may appear by his often
asking what Liucohi did, ' doth hs seek to re.
' pair my credit f Hath he any shew ofsorrow-
< fulnets for his fault i' And, my lords, 1 may
■aKety sar, because T truly speak it, who ever
peoa'od tus petitions, howsoever ihey seemed
to be his Mends, or uliosoever advised him lo
let them pass in that form, they did him,
though questionless he is able to pen them
himself, an injury, yet if he did it by advice
(hey were not therein his fiienil:, for in them
all there is not one word lending to submission
and coofessioii, or so much a« an acknowledg-
ment of a fault, whereby any slicw of recania-
tion in that nnturf might be made to his ma-
jesty, as both in duty he ought, and in wisdom
iPfght have iftade proHer o<, and with
7>)5] STATE TRIAI5, 13 Ch. I. IKT.—P'oaediiigso^aiml the Bithcptf Lincoln, [7'M
tinn of the world until tlic Inw, I do nut find
tliat the Holy Ghost onte made nieiition of
aby, lh;it BtleioplL'd in this way. I find no
shadow nor overture of any sucli crime;, tlie
corruption of nature had nut ihen |;ronii to the
height, aud so over-Soned t*ic bnnks, as to
break out »o uulrageouily, and produce any
such ill.d.sposed person t.
" Insomuch ns I find not any iracf, no wi-
tigiuin of the lilie precedent for above 9,000
years, and the fathersnf the church upon that
[(lace, where it is laid, ' out of the mnuth of
• two or three witnesses shall every thing be
' justified i' th^ descant upon it, why two or
t^ree witnesses iu matters uf consequence P
Because, sny they, so many should not be sub-
jecT to be mmpfred withal, being ihey might
be of several tempers, several condition*, and
BO the truth mi|;ht lie had by some of thtoi, if
ttat by all. t
" And for a long time I read of none,
of Ibe devilish practice and leading piece of
impiety set onfuut hy Jezebel, tor what cause,
and hnw prosecuted, you all well know, and
what she wns, how she sped, and what end she
' tnadeis reiairded to posterity. Yet, my lords,
I pray you observe and ante with me, how
Warily tlie Holy Ghost ^oeih about in the ret-
ting out of this lact, and the paMn)[es therein
i)t the 9lBt verse, tu if tlic S|iirit nf God was
unwilliog to display and discover the heiuons-
iKss of tills monster hatched by this vile
woman ; as if he would nut liave it seen, '
■hadows it forth in a low stream, that th(
came in two toni of Belial aud said, &c. .
if tlio original of this odiims practice was not
mated ill huoinn nature, but took his birth
from hell, it came in with two sons of Belial in
the devil's nalne.
** Well, ailerwards luch a tutor could not
Want apt scbulars, and, as Saint Paul saith in
■anotlier case, ' when 1 come to speak of it
' after' the mann* of men,' I find it then
practised, and that, with a witness, ' it out-
' faced the God of trudi,' thongh truth itself
must not he trodden underfoot; but tfaii engine
Atched from hell, must be planted to defeat (he
OounietsorGod Almighty. They found oirtand
bired false witneMcs against Christ himself, who
tkey were you know, Mark 14, 55. ' The chief
- 'priests and iheelders,and all the whole council'
' sought false witness against Jeius Co put him to
' death ;' and after Lhrist Stephen had the
Mrae measure, Acts 6, 11. ' Then they su-
' homed men, wlio said, we have beard him
' speak blasphemous words against God and
' attain St Moses.'
" Thus amontit those stiff-necked and bard-
hearted Jews, the fault was in use wheh sin
■nd inir^uity grew ripe, and, at the Propbet
■aith, ' Falih and truth could scarce be found
' amongst morutl men ;' but the subversion
■nd destruction of their city f(<llows, and there
oomes in the govemmenc of a wurlike na-
tion and people, the fUohan*; amontit whom
' I find some laws made against false witnesses,
md those very serere oties.
" Besides other laws, in the law of the twelve
Tables there is a strict law conCiuied against
it ; and these twelve lahlvs hitc not made by
any mean adiice Drper!»uis''Utliy the persons
of a powerful ciiuncii and the dtC€nivirl: that
lie that was found faulty in this notorious crime,
he w;is to be thruno dawn n steep high ruck, tu
have his bones sliivercd uU lo pit'ces, e munfe
Tarp^^ or e sato Turptio ; afterwards the
law-);ivtrs pui-sucd this fault nit h banishmeDt
and confiscation of goods, ' Confiscatio bono-
' nun fiat ei puniolur oii pro criu.ine falsi.'
Within those limes was n hravir and roust'
severe punishmeut, whereby their pusterily
also was hraiided with the fault of them that
■cent before them, lu the ninety-fifih Council
I find a course set down fur the prereutiun of
diis crime, and a punishment set fur Che offeii-
ders therein. Anil in later times Bartolus often
meets with it, and goes very precisely and ex-
actly in the case, (hat if so be ic be fuuud in
any man, so much as an overtnie of lanipering
with witnesses, ic is censurable ; rem al, he i*
guilty, though he eHcct nut brs purpose. If be
menace, threaten, or deter a witness. And so,
my lords, shuU I do, though he but barely at-
tempt to smiithcr, dcccr,'ur hinder any witnes*,
wheu be ii lo give his testimony ; be it b^
words, looks or actions, promises or threats, it
comes mai::h to one in my opinion upon ibe
" Now, my lord), to come onto the laws of
the church, if we peruse the Canon and Eccle-
siastical Law, there we sliall ofleii in every age,
have somewhat or other stitl established against
it. In the Canon Law the second part of the'
Decretals, if any man shall be a suborner of
witnesses, ' Etiamsi insti&Htus aut compulsua >
' domino,' if he bring a f^se testimony (though
he be even enforced Co it by his superior lord,
governor or hij master) deliver hint over to
excommunicatioD, ' eC sic nianeat usque ad
' exitum vitc,' and so he must staud and remaid
in that state and case during term of life. A
grievous thing, and a most heavy burthen, the
sentence of excommunication is to an offender,
though now in these looser times ic be slighted
and litile set by ; yet in cases of this nature
when the offence is so high and 'transcendent,
and of condition tending to tlie ruin and con-
demnation of the soul, the party at that time,
and for that present, even dallying, mocking,
Bod abusing of God to his vety face, to be left
void of the Communion of Saints, to he be-
reaved of the benefit of b.-iiig a monber of
Christ's fiock, and cut ufffrom that holy body
tbe church, t think thnc no man is in a worse
and a more miserable estate, and more to be
pitied, if be be insensible of ic himself.
" To come to ihe first council of Macedon,
the seventeenth csnnn, ' Si sit iUe inter fslsus
' juratores, reus esio.' And wJiac is he guilij
of ? Of DO small matter. Ranked and ranged
in the degree and pkce ofa inutthercr e( cum
homkidit. — Nay, be ts worse than a nianslayer,
for he that kilts a man destroys Jiut one, and
that but tbe body neitber, far he cannot vtj
797] STATE TRIALS, ISChasleiL lG27.—;fi,rteandalkiiigt!ieGm!eniuiau,tfc.['l9l!'
najrs infriage tlie union of liis soul tbnc Jt Imd
nritti hu Muker. Bui he tbnt goea about lo
Cubarn and procure false witnessei; he nt one
time deitroya two suuls, both his own, and <he
soulnriiim ttiai he so in ihnt kind inienneddlei
withal ; and unless lie be r^oiuad agniu bj the
renewing offoith atiil iicrious and beariy repen-
' (Boce, hesetsbuth ibeir souls and God at CHld^.
" Afienvards jnu Gnd it id the western paitiof
"En^taad, luid in France, in ilie 17^ council ot
AkhiIim, j'ou hove ■ lam)ierer witli witaesMS
BdjudKed fi death (eieu in the time of Aleiicus,
who was no better tliaii a barbarous Goth) this
crime was diialluued, made horrid, and held
Mverely to be punitbed. You rauy find it in
St. Au)(U£tin, who lived about some 400 years
after Chritt: ; and indeed he niost excellently
Mil it out in his asth Sermon, ' De Nativil^te
Domini,' either he had iL out of that council,
or the council out or bim, being much wbat
both at one time and in one age. Some parts
of Greece I find did affect and paironiie Ijing,
but Tully witiilv ^uirds them fuf it, saving,
ihey were not nise to countenance foDjr; yet
I find that Arittutle in his rbeioricks concern-
ing the IncerrogBtories to vkitneeses, gives ad-
mirable rules, and such as (though short) com-
prehends the most what or the most settled
and the wittiest, and the safest ways used now
adais in that kind, lib. Q. Hbct, you may read
the ways of prevention herein by Iiim set down.
" And to couie into our own country about
the year 1994, in ihe reign of king Hen. 3, and
your lordships know, ibat it was a troifblesnme
time ; yet I read that Stephen Lai^ey, rny
predecetiSor (then archbishop of Canterbuiy)
caliedaciiuncilto be held atOiford: ihemair
biuijiess was for the reformation of two points
tbe one was concerning MarriaBe, tlia olbe
cuikctniing Exliertdilalion, &c. where I find i
foul pennnce in&icte<l and Mt out for him, that
shall either b^ar false witness by himself,
procure it in aootber.
" For he that is n lompercr this way, he is
guilty of no small crime doing, doing (at tbe
tame time) wrong to three of the greatest pci-
.^ns in- the world, »ij. 1. To God. S. To the
king. 3. To the innoeenta. — First, He matii-
fesiiy wrongs God by a notorious ix>ntempt, by
> very slighting and vilifying his omniscience,
omnipresence aod omnipoteDcy, tie robs God
of Uuit which l> his very essence, for God is
tnuh, (and who dare thus ont-iace God's truth!)
aud willingly deviseth and pracliseth Co lay *
^de nud keep it from the light ;.I find him i
very nature to be abhorred and held unlit lor
Iwinan Mciety. Aristotle biineelf in thatglim-
tie learning, decJoherSBQcli
lit by these very charades ;
he iDUSt be one ' qui pietatetu nou curat,' n
iiian that matters not at all for piety ; he
must either deny the Deity, or else think he ci
escape the reach of the celestial {towers; sa<
n one ',i)ui putat se Interc Deo,' lie i> able
akulk on the one side, knd absent himself from
tlie band of God at his plraMre. — Secondly, In
4ie DCS L place, aaother great puion^ui
ciety.
lie doth injury) is tbe king, whom he plainly
cheateth to his face, and wron^ in tlie veay
seat of justice, even forcing big ofGccrs, tlie
grave nil d learned judges, will they nill th^,
injustice: for il the wilnesiesbesuburnad
(ive in AUm evidence, the Jurors caanet
' nearthe truth, and tbejudges must needs
:, order, and sentence what otherwise thej
neither would, nor ought to have done. —
Last of all, the third person that is wrongad
eotttpcclu Vti, is a person of no stiiall
sero, the innocent (one many times Uule
ennugli esteemed, God knows, in the eye ^f
the world, but gracious and great in the sight
of Cud,) and he is aiw) most shamefully wrnog-
nd abutted ; nay, perhaps undone by IM
ect practices, of those false witnesses.
Sometimes his person is traduced, his fema
and credit either stained or else (juite taken
away, or so shtiken tliat it's a shy muter to
deal with liim; nnoiher while bis estate, hii
binb-right, is wre.<ted from him. or else with-
drawn, and for a time withheld ftnra liim :' one .
white his goods, another while his lands, a lliird
time himself, is at slake; so life, lands, goods,
and all are in danger ; well thuugli such wit- ■
nesses be against liini, bis plea is ntver a whit
the worse in Furo Call, Ins inheritance is laid
up amongst the saints, ' Testimonium ejus tat
' in cceUs,' ' doubtless there is n reward for the
' righteous, verily there ii a God that judgeth
' the earth, for tnereis nothing hid which AaH
' nbt be revealed.'
" And thus, my lords, have I said what I
thought fit, though not so mucli as the crimes
deserve, far my time being scnnled, I have laid
it out (lliouch roughly) yet so us it may easily
be seen of what a vile nature this cankered and
pestilent weed is, and from whence it had its
original, and how odious and detestable it hath
besi to all ages, how dangerous the eSecls ba
that procevd from it, and therefore hnw care-
fully It ought to be looked unto and supprest
in ■ 11 commoU' wealths.
'■ I shall make iny word gold in my brevity
concerning the Isst thing 1 am to perromi, and
shall pass over the sentence very speedily; tn
make any repetitions were but actuui agtre f«»
my lord of London said) therefore 1 will be
short, I find much tampering and striving by
my lord bishop's agents ^r to suppress and de-
cline a l-ulh. I wonder that Lake should be
sent lb the university of Cambridge priseigtly
to take the d^ree of doctor, and that thay
would let him pass. I cannot commend Mos-
tein (though otherwise a very civil and deserv-
ing man, and I think very true and trusty to
hisinastcr)yet to be present when a blank is
put up, and an Affidavit to be made to a blank
by bis privity and in his presence, this is dm
hnneat; he might have done well to have dis-
allowed tjie proceedings, or at least not been
present, and have countenanced 'the Mne.
And Walter Walker, ihounh lie be a si;]icitor„
and most and ought lo fullow the cauws be
Undertakes, with as much skill, industry, aud
advice as be may,'y(t.be niight have been
1 STATE TRIALS, 13 Cm. I. 1637. —T^vtxakngiasaintt tin Biihr^qflMcobt, [9»
ashaioed of ihit blank Affidavit, bih] be ought
indeed to have supprcit it.
" if VValLer had lieeii a good tervaat It had
S1D« bt^tter with the bibltop, Ihao DOw it it
Llc to do : and if Walker do escape Mntenc-
ing it's more by kap than skill, mure bj luck
than honesty. I find liim to be a very arrant
honest fainn in aH ihe business, aad inj loid
bishop is a very miscrehle man, llius to defend
Ptige<in's goiid name with the luts of his atvn. .
'■ Catlin, lie must have a living given liiiii,
Rnd weli he deierved it, but m yet he had not
plajed his part to the full, and therefore stay
your hand (my lord saith Walk^) till the busi-
ue>s be done. A manifest pUin proof tbst
there vias some use to bo mnde oftliis cunning
•ud crafty fellow, to cnuDU:naiice the bUBineti
in hand. Andl can say no Itss, ilian that IGud
Catlin to he a very lewd man, a very Incendiary,
•nd truly to be tianlkled nnth tliut Catlin of
Rome, Against huodi so many learned and elo-
quent orations were writ, by Cicero that famous
" For Lunn, let him go on in God's name, to
be put off from the place nnd offices llmt he
hatli; and fur Ponet, 1 could go deeper iban
■ony hclnre me haih yet done, who prosecutes
an unjust act so loug, so oti, and never repents
of it.
■' For Kelverfi affroniinjrof my lord bishop
in that manner he did, 1 must set ihut, and the
bishop's oifering to be present at the extuoina-
tion of tbe Hiinesses, both in one distance,
and they may very well the one of ilicra quit
tbe other; aJid I must commend Kclvert, or
any mim else that tlioll go on in the kiue's
businrss, aDdconcerningsogreaC a matter; for
if he had gone on piningly, Ikintly, andcowatdly
have put liis iiead in a hole : if he had, by my
lord's presence, aod by the terms he used, gone
•heepishlyon in his businesi, the matter might
have foiled. Sunie of yuur lordships have con-
demned him fur his bold cnrrioge toward a
bishop in his own diocess, hut I cannot, for
my lord and his passions were more to be Con-
demned. A temper would better hare belittcd
bim, and indeed lie ou|(ht not to have given any
such occasion, and tlierefore it may be »aia,
' Etiamtin^o dignvs sum haccoutuinclia,indig-
* nus tnmen qui Ircerit,' I pass thai by at to be
ei:cused by jeasou Of the welghtiness of the
" For tbe gaining of fnpcn from the Coun-
cil Table, I lind my Lord Bishop had tlicm
long enough in his custody, and tliey weru re-
turned unsealed ; and I dn tind that he proceeds
(o cou liter- pruofs directly, according as he was
iiifunned by these papers, »liich in iny miud
fhews aiipai-enlty that he both had thent and
" For sir Jiihn Mounson, the king is wound-
ed through Ins sidra, I have known him a long
tiuM, and I iievvl' knew nor lieard any thing of
him but guod, and tlierefure do hold 1,000
' marks hiile eimugh ti>r reparation ufhis credit,
who did uuihing but that which was bis duty,
Uid baluo^ed lu hit place.
" Now for my lord bi^p of Lmcoln, tnJy
I am benrtily tonj to da that which I mint do,
both by reason he is of my own cost, and also
by reason of the place he huh in fomitr lima
sustaioed in this court amongst vour lardikips,
and in this common" enl ill, but I must not for-
bear to da that nhich my conscience lends im
unto, and less I must not du than for lo di^
charge that us I ou^it to do,
" Whercforel shall agree withmy loidCoi-
tingtnu and the rest that liave gone beCtneDie
in the tine of 10,0001. to his majesty; atiil
likewise fur his i ni prison mcnt in the TokR
during the king's pleasure, ns also tobesos.
peuded from the cxcrciimg of his ccclesiastial
tiinclioo, ' tarn a Beneticiis, qunm OKciis,'
and to be referred over to be proceeded tp'unt
in the Hii^h Commission Court, as themtiiiof
his offence shall deserve."
The Lord Kerper. " This Cause, my tenfe,
is a cause of greiitconse<|ucncc,Bnd it is a very
foul matlet, though I must needs sny tbe de-
fence* that hath been iiiode in ii, Isacli bna
very fair by Mr. llecnitler, and the counsel oo
my lord of Lincoln's behalf.
" Most^n 1 must acquit, for Callin I ctme
resotved lo Censure him for perjury ; bol ste-
ing the court lets him pass, I sliall DM seolencc
hfldn hand in ihnt Blan£ Athdavit, and helped
Smith, and counienanred and dirked him
what to anear, and what to let alone.
" Ail ray lord's actions, for which he is mud
lo be blamed, are subsequent to tbu Affidavit;
1 must do my duty, nnd discharge my coastieace,
nnd shew my love to the common good, nhil-
ever my privnte wishes arc, that things had not
fallen oat thus with my lord as ihey do..
" I shall divide all into two parts, sonw
thing) I hold faulty, and some I shall not ccB'
lure; I shall not censure Mr. Kilvert for Ibi
unmannerliness, though tbe affront was grcti
to a man of bis place in the country, where ht
WHS bishop of tile dioct-se, and in tlie chief srU
of bis jurisdiction. Mr. Kilrett might hive
furborn him somewhat in that Tet[iect ; buttke
cause being of that high nature, niid concerning
them it did, he had som^wlmt the mor« renson
to be the more confident and bolder in thepm-
sccution thereof than ordinary, and tor thii
cunccrnine sir William Beccherl find no pn»f
of it.— I ri^iid that Lunn, Tuhb, and Wcdierd,
were tampered withal, but 1 cannot find my
Lord Bisbop laulty with them : For Oeot^
Walker, I find him cfnsurable ; and so is my
lord also himself in other inutlers, ii will ap-
|iear wlien I shall come at thfin. — I find by
the pr^iof of twfo Witnea^ts, that my lord «»■
fess«dhiui»df,thutitciKthim 1,000/. or l.SOOL
U) bolster np Prigeoii's rrputatisn, and to *>
this he falls into error conetniing the onkr
made hy sir John Mounton ; that must he sop-
prfsi, and 1 know not iiow »o much money
•liould be expanded, but upon sufh connes ••
were used with Smith and Callin.-Cnliin idd
Smitlt he should be sutdebyiti so llM 'M
8B1] STATE TIUAI^, 13 Charles I. 1637.— for tamMhiagthe G</i>emnxiU,i(e. [^m
order must be to undermiDC the wimessej, and
get them to varj frora what ihryhad formerlj
■worn before thejusiices st the public sesiioiii.
1 know thgt men in ca»es(if ihi" nnture dn not
bluntlj promise this or that; hutlfind Walker
go«s about b; questions nt £ret a-far off, snd
then comes close to inslriict Smith what to
■we*r ; and rewards are not behind, neither do
I conceive in such casei, that there are ever
tno witnesses to be etpected, hut as my Lord
Chier-Juslice of the Cominan-Pleai explained
it, lingiilarit TtitU (hall induce me to beiieve
a inith in Bime cases, and it must of necessity,
wlierf circuiogtances concur with the same.
" So that whatsoever Mr. Recorder said, the
relDm of that order mttde by the iuj '
Willi n
. Tht
witnesses knew nothing of the questionahlenrss
of the proceedings, but went on the wn; their
consciences at that lime led them ; Now for
wy lord bishop of Lincoln to seek to dishearten
ihem, to terriff them byihreats, and seek other-
wise nfter bj rewards and promises tn subvert,
or at least, to divert the current of jiijtice, I
know not how-to excuse them, but tliat he is
much to blame to give mch ill names and dis-
pnceAil titles to an order made in court, ns to
call It a Pucket Order, thereby bringing an
odium and defnmalion upon the juslices, who
proceeded as thej ought, and in open court, as
appears bif Dr. Farmary, and by Ascot, who
had bother them a, hand in it, as I tuke it, as
well as sir John Alounsnn, and therefore their
credits mutt be repnired also.
" For Alice Smith, she was tampereil withnl
bj Owen and Powel to salve up Prigeon's cre-
, <]lt ; and after that she hud tuken one natli be-
fore the jii>tices, then, for the present the com-
mission to be sat at Lincoln, she is inken and
withdrawn out of t]ie way, and hath rewards
given ber, at is apparent, either to deny, or al-
ter, and vary from what she had nvorn before.
She had bl. offered her to persuade Elii. Hodg-
■on tp lay [he child 10 another father; and
then afterwards it was giren her to persgade
ber to lay it to the.right father; and yet here
is no false oath, but may be (rue, as I can in-
itancetbatadeposition may be inadeby a party
that may swear two things that are contrary,
and jet the depositions of both uf them may
" And yet an Attainder hath been upon the
tike ; now upnn an attainder the puaishmeni is
fjeai, he loseth his freehold, and goods, all are
forfeited to the ting, his houses are lo be nijed
dcnm, meadows plowed up, and woods to be
felled, nod he himself to be imprisoned or ba-
nished, liis wife and children tn be turned out
of all.
" So in another Case, (Fitz-Herh. Natura
brevium, lib. 19.) one hnth a hold from an ah-
. bot, and a rent ii due, as Foster in fee be holds
jure rw/ori*, njid it is sworn he had common,
time oat of mind : And if the words jure rec-
terut, lie not exprest, all may be true.
" In this caseof Alice Sioithitmay be 'ques-
tioned what inooef was promised, H. to what
end ? to swear that she was moved <o get iba
child luid to souther : Well, nftertvard^ she
must Bwenr that it was to lay the child to the
right father, Mr. Valentine and Mc. Powel
shewed lier the interp>garories, she must swear
a^inst the first order, nnd Mr. Valentine said
his heart tiemhled nt the questions.—
jchci
with a
questions, by which they have insttuciions what,
and how lar to swear. — .And Prigeoii tells Ri-
chardson, that if he could get the order altered,
he mieht do the bishop special service.
." Now it may be, suid he, may not a mno"
meitdle, nor question with a witness ? yes, hut
with certain limitations, tor else, if )1ic wit-
nesses be made and corrupted, ilie jurors and
judges both of them mav be abused; and if
that witnesses may be led and instructed by
questions, or the like, it comes all to one bs sub-
ornation,— A Solicitor mny warn Witnesses to
come in, he may incite them, and enforce tliea,
and one as well as llie other; but foraEtranger
to labour a juror or n witness, is not so nllowa-
hle. — But a solicitor niust not instruct a wit-
ness, nor threaten him, nor cirry letters to him,
to induce bim this way, or that; y<t he may
discourse with him, and ask him what he can
say to this or [hni point, nnd so he may know.
whether he be fit to be u^ed in the cause or no:
hy which means this court is freed from the la-
bour of asking many idle qneaiinns of ihc wit-
nesses to no end, if they can say nothing to
Ihem, and so spend good time to no «nd nor
purpose; yet he may not persuade bim, OT
thrcaieu him to say more or less, than he of
himself was inclined unto, and was hy, his con-
iicience before-hand bouiid to' deliver as truth.
" The term in law is called einbracery of a
Jury, miipUxut, to curry litvour, when one hugi
them, and houses them in their nrms to procure
respect unduly to their own ends ; you have it
mentioned 13 H. 4, ft 16, nlien there is a lead-
ing of a Jury (3 H. 6, whereupon it halh been
oidered, that in cases which have any relation
to great persons, who usually are on the bench,
they are.upon trials to absent themselves, and
not to be in presence of the bar.
And ai my Lord Chief Justice of the Com-
u-Plea
1 this
^, the
countenance of a great man, nnd one that ii
powerful in the country to do a poor witness
harm in ansther' way upon any other occasion,
when it shall come to his turn, and nccasion be
offered for him to do it ; the veiy looks I say of
such a man is able to put the witness olf from
what he was resolved to ipeak, anil dash him
out of countenance, that he will eiiher,for fear
that 'such a man shall lake disMke at him, or
for hopes of much favour with hiin, and to gain
his eood will, speak sparingly of the matter in
hand, at least, if he do not altogether decline
another way in his words to that which he in
his conscience knows to he the very truth, — '
So that in the point it is plain, that when a maa
sinill alter the testimony of a 'nriine9s,nndcnusD
him to decline from thejtruth, whether it be ^
3f
<S03] STATE TRIAI^, )9Cii.I. IIU7 ^nvceedu^i«»i>Mtdefi»ft<!p(!^lMivAi^ [bO|>
ilireaU, promiin, or rewBrds, it Iialli ever
heeii much disnllawed, and lie that attempt)
the same ia censurable, diou^ perhaps he ef-
fects it not.
" Now, inj lord, to come lo the Censure,
for I tiBve Ix^it sumcwhnt the more bold upon
iour (latiutice, than [ would olherwiie, becau&e
would have it- appear how far one may, aud
wherein oae may uol lainper, or meddle with
wimesses, which thing ii the maiii matter in tliis
•tAi« we liuve had so Toog in liand ; for had not
tiif lord bishop moTed this way, I should not
have found matter in thl« bill to have sentenced
" But for to justify Prigeon's credit, and to
•niJic liim stand upright, and to clear the repu-
tation of him, find otiiecs, so much money is
spent, and these unjust atid unilue undertnlungs
have been made by my lord of Lincoln's ser-
Vauts, and his agents, to tnmpCT, seduce, and
withdraw :he witnegises aside againkt the lans
of God and man, and to the very overtlirow of
my lord biniself.
■' For Cadwallader Powell ft is plain all the
way what he did, and in what undue couriea he
■oughtio suppress the truth ; I slioll agree with
your liird£bi[» for him In his Hue, and do cen-
sure him at 300/. fine; and lor Owen, I shall
also agree with you in his Gnc of SOOf, Also fur
Lunn, 1 could go deeper, aad set him a greater
punishnient than your lordships huve, but do
agree with you in his fine o[ 1,000 marks, and
to be dimbli'd from being in any office or prac-
tice herc.-ifter in liis prolessiDii, or in aoy oihei
" Now for my lord bishop of Lincoln, truly
1 am heartily sorry for him ; but f-i tec
ke ia the cause of his own overthrow, ' Et
' Itonin viribus suis,' no man hurts him hut
liimselF. I think nf him as a great person,
more to be pitied fur tliat )te is a courch-niaiij
n/iri in so eminent ■ rank as a bishop, and nuoe
of the meanr-st of that dignily i and as ray lord
of Cimlerbury spoke, that it wn* the more grief
to him to pass sentence iu so deep a man
upon him, by reason he was of tlie same co
V)i my lords, I cannot hut be seiiaible of
precedency tu nie id that place I now 'undergo
by the favour, and at the pleasure of i he king's
luHJesEy, my honoured mailer. — For a man of
his wisdom, of tbut experience, aud having seen
(he viiriou^ changes of times, and of leveral
meus fortunes, lived in that eminency, and so
, veil -lite rated, to seek his own overthrow, to
suppurtund maintain the reputation n fan other,
is a tiling not to. be so ranch as dreamed on, or
couM be once thought upon, that such weak-
uiss should ever fasten and lake place iu a p«r-
loii so well-guarded and accO'npaniqd with vir^
tues and commendable qunUtjes, as my lord
bishop was, ever esieemed to have.— -And for a
Cliurch-inau, wjiose prufession is to tuppiirl
mens conscieiices in the right way, and Jor la
reduce them into it wlien they shall chance to
«tr, for him to be a seducer of the conscience,
is a fuukt and wone slain in him tl«n in
•BOdieE.
But when to that sacreJ calling (the pn»-
fessori whereaf are ever to be had in res{MCt)
shall be added another Cha^e, and care bj
tbe fnvour of the king, to become ■ judgf, «nd
a judge of that gieat conrt ofChiuc«rj, wb«re
equity and conscience give ibe very dcnoniiw>
of the court ; to be advanced to this emi-
iposed and placed in that servant by hit mas--
r. Nuw I cannot, my lords, but be bcartilT
sorry, and very much pity, that a Church-msa,
and bishop, and one that hath been a prelatei
and eminently diguified for tbe space of this IS
or 17 years at least together, should so grossly
be oveneen in the countenancing aud cherkb-
ing such foul crimes ; Nbt, a man that bad
burn the great seal of England betbre two such
great kings, end been highly graced with ■«
many large tcslimnnies, and remarkable ravoors.
from ibem both, to uncase himielf of all thoit^
nnd ihnt at once, niid for so sniall a matter,
so little really in itself cunreniing him, I cannot
but uonder now ho should fnlt into such aa
error, and more pity his mistbrtunes to see him
so mucli his own enemy. — But as it faatb been
observed by vou all, he halli ove^hrown luaa-
srlf. And ihercfute I must do my duty, and
proceed to bis censure alfo, as I have in ihe
rett ; ' vincat Veritas et fiai justiiia,'
," I shall agree with my lord Cottington fbr
his Fine to theking In lO/KK)/. and »> 1 do also
with my lord Coltmgton for hi^ impnsuuaienc
in die Tower during his majesty's pleaiore.
And withal to be suipendtd trum all his Eccle-
siaatjcat Dignities, othcei, and funcliuns, and iu
all with my lord Coltin^ian, ' uh iilhciis et br-
' nehciis,' and to he refeired to ihe High Lom-
miisiou fur the rest.''*
Ffbnwiy li, 1C38-9.
The Bishop of I.Uiroln, together wit|> Lant-
beri OsbaldstoB,.')i;hoohnK>teTof the Granmar
School at Westminster, was charged by lofor-
matinn in ibis court of Slar-Clwmber, to have
Slotted together to divulge false News and
ies, to breed a disturbance in the State, and.
diAerence between two great persons, and
peers of the realm, viz. the late lord trcusnier
Weston, and the present Brchhishop of Can-
terbury. The Charge was grounded upon these
following PaBsaget written by Mr. Osbalditon
to di^ buliop III Lincoln ;
" My desir Lord ; I find tor certain, which I
"■This bishop of Lincoln, (once a great mi-
n ill Ler of stale) wrestled through thfne difficoi-
tie^ and clnse impiisonmeritt; was ai last K4
at liberty out of the lower, and called by tbe
king's nrit to sit in the house of peer>, and
afttr that was advanced by the king, and re-
stored lo nil his ecclesiaslicvl dij^iliw wi
functions."
«(»] STATOHUAI^, ISGbaubsI. \«Sl.~^tamAiUAgacGoi>tnMait,^. [Sf»
rtport tub ligiUo, that the greUl«viatbnii, and
the bttleUrchin, are a grent storm in Christmas
weather, nnd are at a rery grent distance
with inoilier, in«oniucIi thnt your lonlship hath
been inquired of more than once, if you '
come, and wlitn jou will? Aiid the grent
wai heard to justify tlie wordi which yon '
qseslioned for, iiarnely, ' That you had as );oud
* a risht ID the Drinery of Westminster,
' the king to Lis crown,' And he was heard
MJ, ' That they were no more than lie himself
* would My,' The jealousy grows great
dbtrp between the LeiialhaD, and the Jiuls
meddling HocuvPocos; and if It tncr
lhei« is hopes your lordship will enjoy the
falesiiag of the king's grace. Your lordsEiip
will hnr, that tha lord's grace of Canterbury
is come to lodge ia court, so is the lord trea-
wirer: your lordship, I hope, will pick out ray
tneauing, Westminster- College, Jan. 0, 1033."
In another Letter,
" Aly dear Lord; I cannot be quiet but I
must write to your lordsliip. The sport is
grovn tragical, any thing would be given "
•euud ano tborougo charge to push at and
found the little Urchin, The Spauiards^and
tbe Hollanders are both ^iproveiU; and finnly
joined to effect tbe lame, if your lordship lend
jour aMiKance, which 1 am bonod to implore
and require. Let ihem in the mean time
■cratch one anotlier to llie bones. I use free-
dom of heart, it is somothine of revenge that i
brareioul, osyour lurdshtp \t, hath souie hopes
of Mpport in tlie midst of a flnod of destruc-
tion. VVesuoiiitter-Sciiooi, Jnn. 3D, 1633."
likewise, there wu prmjuced tbe Bishop's
letter of the 9nd of February, to a friend, to
tbit purpoae :
mj endeavours to be useful to the Lord*
Treasurer against the little great man, and ai-
•Qred be t)ut they were mortal enemies. Bat
br mjr pan 1 retose to meddle with any sach
bis riiree last Ictiem. If the l.ard Trea&orer
would be *erted by me, he must free me from
tb« bonds of tbe &ar-Cbaaiber, otherwise lot
ibem fight it out for me.''
It was aniwcred in tbe behalf of Mr, Os-
baldsCon, lint whbt was done by him, wns done
in prirate letters, sealed to an bonourable
friend. And it was confessed to be error in
bim to ate such familiarity in some passage*
tbereiD expressed. That he doth deny. That
by tbe apprilations therein mentioned, he did
Bean the Arcbhisbnp's Grace, or tbe Lord-
Treasurer. But he meant thereby one Stiicer,
which took upon him to be a doctor ana wal
Bone; that be hail divers timet used, between
Jest and earnest, to call him ' little Urchin,'
■ Vermin,' ' little Hocus Pocnt in tbe Velvet
' Jerkin,' aod tihat there were Mine difference*
^Mwecn bim'wod tbt'biibop of Lincoln; and
by ' Leviathan,' be meant, Chief Justice Rich-
ardson, whu had formerly comtnitled Spicer, in
West minster- ha 11 ; and he confessed he did
merrily use that name, the person being apt t»
take a jest in guod part.
On the bishop of Lincoln's pan it uai of-
fered. That if any such Letters were sent by
Mr. Osbaldston, yet he denied the receipt of
them ; and far tbe interpretation of those Ap>
petlations, he conceived tbe writer was the best
interpretcT ; that be bad many times heard Mr.
Osbaldston call Spicer by the name of' Ilocus
' Pocat,' and be psed to call Ricfaardson by
tbe name of ' Leviathan,' and denietb the pul^>
lishio^ of any luch Letters, or (o much at tb«
speakiag of any tucb at his table.
Tiie Attorney General uraed, That the In^
'it the Deiendants would not
That those LeUen of Mr,
Osbaldiii
m ware found iu a box .in the bishop's
Bugdcn ; and when the bishop heard
' found, he said, ■ Osbtddston was uo-
That rbe Biihop'i secretary Walker,
and tbe clerk of his kitclien, had heard tbeir
master discourss of 'the subject matter of these
I>ettert, and that these names of appellation
were frequent, between the Bi^op and Osb«ld>
atoo, and that by them wa* nwant ilje Ardi-
bishop^ and tbe 'freaturer.
But it was further offered, in the behalf of
Hr. Osbaldston, Tbat tbe luterpretalion mad«
by others, slioald not be tbe ruin and deitroc-
tion of the defendants, Tbat the bishop'* *ai<l
secretary and clerk of his kitdien, wiinesset
agninst bim, were lately censured in this court
for tampering with Witnessef, and were per-
sons expecting the mercy of the court; and
witnesses were heard on the behalf of Osbald-
ston, that he frequently called Dr. Spicr-r the
' little Hocus Pocut,' and the ■ little Urchio ;*
■nd the reason was, because Spicer had made
many promises to give a Library worth 40/. to
the School at Westmioster, but failed in th«
Eerfonnance. And it was further proved, that
e frequently called the L. C. J. Uichanlian,
' [,eviathan,' whu had committed Dr. Spicer iu
WestmiiMter-ball.
And in tbe Defence of tbe bishop of Lincolii
was further uri[ed, Tbat liis said secretary,
Walter Walker, did frcquentfy receive, and had
commission to open his Letters in his absence^ ,
and what letters he received he could not tell ;
and if those letters were fnund at bis house,
they were laid up and concealed by liis S<s-
And further the bishop petitions the cotut,
informing tbem how unable be was to make his
defence, beinE his majesty's close prisoner in
the Tower, After wliicii, Mr. Attorney General
Sir JoRN Biiiiis's Replt about the Censure of
My Lords ; tlie Defendants' Coiiotel in
dkeir Defence, don except agaiait tbi cliar^*.
STATE TRIALS, 13Cb.L iQil.—firtKeedUptigakttiheBtiMapqflMcobi. [80S.
wards in the Letters, vrhereb; it doih ceriainly
appear, tbsl these words were not lueaat af
Qi^ lord's Rpace of Cauterburj, M^ lords, this
sticks at all onuses of Justice : for ii' ibej slull
be suffered to interpret their own words, by
iliis means idJ Libellers would escape punUlf-
of the Inf 'nnaiioii, and ihej laboured much to
tie the matters ch;ir):,ed in the liifurmiition to
ttie verjr day iiii tlie uiuiitb, seeking iliereby to
escape die Cliurge, cuDtrary to iheii- jiid|jnieata
uid (he commoD course at justice. — Atsii they
made question where those Letters should be
found : but if tlity will, they mny know that
ibey wern fouod at my lord bishop of Lincoln's
house at Bugdeo, at is mauirest by their own
witnesses Iiiteir^igatories, 1 and 71. — In the
Answer to which liiteiroKatoriet, three Wit*-
oesKS do all say, That they heard they were
fuund in a band-box in my lord of Lincoln's
wardrobe-
Mr. Recorder. " My Lords ; We inn ei-
amined four Winesses, which do all depose.
That there were no Letters found In the band-
. box, and that his lordship did nerer lean any
letter* to be kept there.''
Mr. Herbert. " It appears by their own
Witnesses, that there were such Letters found ;
but this is not to the purpose where ihey were
found, but now they are found, the heinousness
of them is the point in hand."
Lord Keeper. " It may be that some of the
lords may find some things in the Depositions
that may ^erve one way or other, therefore I
think it good (bey should be rend ; but for my
own part, I am Bati>6ed in my j uitgment."
Mr. Allarn^ General further proceeded,
saying; "My lords, the Defendants counsel
have made two Defences, one for Mr. Osb'ald'
ston and the otlier for the bishop of Lincoln.
The counsel for Mr. Oebaldstou except s gainst
the Wiioesses that prove the interpretation of
the Letters, and would have Mr. Osbaldstun to
expound Ills own meaning, and if this should
be allowed, eviry libeller would tbetebj et-
"cape the censure of the court.— First, They ex-
cept against Cadwallnder Fonel,. because he
was before sentenced in the Siar-Cbamber;
but, my lords, his Censure in the Stor-Cbam-
lier was not for auy matter of penury, or
crime lliat should take away his testimony;
and the siame thing for which he was senti-ncrd
was my lord bishop himself sentenced at tho
very same time.— .Secondljr, The second Ex-
ception was, that^Ir, Powel aud Mr. Walker
were made DHendanis in this court to take
away their testimony in this cause, and Che
reason why they were not proceeded agaiiut
(said the King's Attorney) was, my lords, be-
cause my lord bishop of Lincnln would not
perfei^t his Kxamioatjan, by which we should
have the better proceeded against the:ii, and
when my lord bishop hatb perfected his exa-
niination,. they shall be proceeded ngainst.
" Again, they except and say, that Walker
being secretary to my lord bishop of Lincoln,
be ought not to be wiiness againtt my lord of
Lincoln,— 'My lords, when a^retary is called
and euminea upon oath, he ought la discover
the truth of what he is eiamined upon, and not
to perjure bimMlf.
" A(aio, ihej ny, (bat there u« ao apm*
" The third part of the Defence is thb: that
Mr. OibnldstOD should cidl Dr. Spicer, ' Ver-
' niin, Hocus Pocus, Urcliin,' and the like:
therefore say thev, those terms in these letters
are not to be applied to the archbishop of Cao-
terbuiy, but to Dr. Spicer. This is oo exclu-
sion, for I shall shew that those words must
needs be intended and spoken against th<
archbishop of Canterbury, and not of Dr. Spicer,
" In the Letter of the 9th of Jan. the worda
cannot be applied to be spoken uf so mean a
man us Dr. Spicer : and so likewise in tbe
Letter of the 30th of Jan. wherein he desires,
lliat it should be kept secret : and if thesa
words had been spoken of Dr. Spicer, they
needed not be kept so secret. ■ For ' Hocos
Pocus' and 'Vermin' being spoken- of Dr. Spi-
cer, were published in Westminster Hall, arid
other places tliereabouts, and therefore needed
" And that by the ' great Leiiatlian,' it
should he understood to he meant of the lord
Richardson, there is no colour for it, my lords.
" As for Oibaldston, he hath long been «
torbiilent meddler, and a false inlelligencer of
the aflairs of stile; I may say he is ' IltKoa
Focus,' aitdajugelerin the nffiirs of stale; and
yell am »orry that I shall charge hrra i ' "
worse than the charge Aiid agniDsl
the information, for he is guilty of gross
which
and wilful perjury, fur be hatb denied upon
□alh that which was plainly proved agamst
" Another argument is, TKs Osbaldston i*
now run awny, which in our sense doth shew r
guiltineM of the offence. S5 H. 5. ' One being
' indicted for felony, if he runs away, he then
' forfeits his goods.'
" As fur niy lord bishop of Lincoln, he standi
upon three thinu. I, That be rereived not
the letters. S. That he did not poblisli them.
9. That he did not entertain them.— For tb«
first, it is proved by witnesses, That two day*
after Twelve-tide he giivo order that his Let-
ters should he opened that concerned his law
suits, so that thereby be might colour the nat-
ter, (hot they might not c^ime into his own
bands. Again he dntb not say, that he did not
receive the letter of the 0th of January ; beside*
his own Letter of the Sd of January, maket
mention of three Letters which be received
from Mr. 0>baldston i in one of which h*
should Gpntribute nioney to ihe use of the L.ord
Treasurer for the ruin of the ' little great man /
so (hat it is confessed by his own writings that
he did rccQve them. And the Letter of ibe
SOth Jan. was sent by a special messenger to
Lincohi, therefore it is most probable that ha
received it, and your lordships have heard Cad*
wallader Powel say, That my lord of'ljncola
609] STATETRIAtS, ISChablbsI. IQ37.— for seaadalixmg the GovemmtM, If c. [610
that thay were. Then sud lite bisbop.Osbald-
ston is unduiM : so tli&c I cundaite jour lord-
ibips will not think, bul that bit Wfdship re-
ceived the letters.
" But it if objected, Thut thb w do offeoce ;
for, sBj they, it is no afTeaca to receive libel-
lous letters, and Co keep tbcm priTBte.' And
OS Ibr my lord of LincoiQ, lie did iiCTcr pub-
luh any of them : and there is diSereiice be-
tniit Usbiild&ton's Case and my lord biibop of
lincoln's, for (liey were only sent to ray lord of
Lincoln, but he did never cuntrive nor publish
any of them. — It is evident that lie did publish
these, for they were spoken of by Powel and
Walker, and the womeo did talk of them in Jie
" But tbey say, Thnt tome of bjs aitendants
never beard him publish any such Speeches at
Jut own table. It is like he did not make it
hie table-talk : but, my lord, under favour, my
lord of Ijncoln hath been too foiward to enter-
tain M>d publish libellous letten. If any re-
ceive libellous letters, (he receiTing is Dot a
pabllihiug of [hem, as it is in 9 Report foi. 5%
la tJie 5th ReporL, there is dilference betwixt
Words and Letters, tvhich concern a private
man and ■ puhlii; officer. If the* do concern
a private man, it is iir> oSeoce in him iJint con-
ceals them: but if they concern a public offi-
cer, Ite that dnib conceal them, in guilty, and
■hall be punished for a libeller. Aad I con-
ceive roy lord of Lincoln to he guilty of [terjury
in chit cause ; and, my lords, that perjuries are
piuishable in tbit court, (though they are not
cbaned in the information) dulb appeal. Hill.
^ Elu. & Hill. 4 Elli.
" My lords, I do wish that this age that is so
mtich infected with devitiaK and divul^ting
tcaudalons Letters' and Words, ibat some exem-
clary eiample might be made,- that we might
Lear no more of iuch scandalous matters.
*' My lords, before the Cunquest they bad
ver^ strict laws against Libellers, (at tn hare
^eir tongues slit); ai)d in the time of Ed,
And Ed. 3. them were special commissioners
Appointed to enquire after libellers, at in the
dote Roll. Parliament, and to I humbly leave
them to your lordabipt.".
The Court proceeding to Sentener, declared
in general, ■■ That they had received satisfac-
tioD that Mr. Osbaldttoo was the crntriver,
writer, nnd paUisher of those odions Appella-
W)a* of those two great persiins. That his
J>efeoce was ridicirious, and that his end was
the rain of Che arcbbidiop of Canterbury. —
As for the bishop of Lincoln, they said, he
was a person of quality, parts, and abilities,
Mid ooe that once ant ns judge in this ci
that he shewed himselF very indiscreet in
ccaline those letters, and had thereby Wide
binisdf gnilty of a high crtme."
But for furlJier satisfaction, take tl^ese
Speeches foUawiog mule is Court M UkcmJ
Sir Mn Finch, Lord Chief Justice of the Com-
mon Pleas, spake first, the Lord Cottingion
being absent.
' My Lords ; There are t- o Defendants, to
thereore two Cbarjiesiii the IrifofTOatinn' against
them. 1. They are charged with giving nick-
names imto two honourable persons of' ihit
' 1. 3. They are charged lo plot, and con-
to work an utter ruin and oterthrow to
my lord archbishop of Canterbury. And in
those Charges, 1 Hhall observe several tteps and
degrees. 1. An endeavour and agrv emeu C be-
tween Osbaldstoa and my lord bishop of Lin-
coln, to reproach nod scandalize these two no-
ble penoos. S. A publishing and divulging of
the same. — In the second Charge I observe
llieee steps. 1. A fiikc rumour raised by thero.
3. A publishing of the some. 3. An endea-
vour to work the ruin of the lord archbishop of
Canterbury, by contributing charges to elfect
the same.
" And bow far Osbaldston and the biihop of
lincotn are guilty, I appeal to your lordships.
I shall now shew the extent of the liifurmatiun,
the Charge being laid to be in or about the ](Kh
Feb. M- 9 Cor. Which Charge doth compre-
hend all libellous letters, either before or sinca
9 Car.
" But it's true, if in the Letten will not ap-
pear that sense which is contained in the Charge,
then they shall liat be n'nhin die charge of the
Information, and therefore the Inforroaiion ad-
mits of as much favour to the Defendants at
may be : for this court dntli raiber desire tu
find men innocent' than guilty.
" I shall now come Co the particulirs, and
shall herein observe the course of the Defend-
ant's counsel, who hiive disciagui^bed my hird
of Lincoln's Cau from Usbaldston's, audio shall '
Sit a difference between them : for Chough
sbaldscon be guilty, yet it's possible that my .
lord of Lincoln may not be guilty.
•■ And as for Osbaldston, 1 bold him as clear-
ly guilty of (be Cliaij^s in the Infurmatioo, at
any have been sentenced in tliis court. For
first, Osbaldston was the contriver and publish?
er of those scandalous Lctiersi aod I tbink
there is no doubt at all, but that they were
meant of the late Lord Tieasurer, and tbe now
lord bisliop of Canterbury. Secondly, your
lotdtiiips may observe, what interpretrtlon the
lord bishop of Lincoln would make of them:
How (hat my lord of linqoln himself did con-
ceive that lie meant the archbishop of Canter-
bury.—The third is by Witnesses: 1. Wdkci
said, That be saw divers letters wherein Osbaldr
ston explained bis meaning, That ha meant ny
Lord Treasurer, and my lord's grace of Canter-
bury. Again he saith, he saw some letter*
wherein Osb^ldtton used by-words, which my
lord of Lincoln did not underttaa.d until Osbalil<
stqn ^ad explained them. Again be saich, lji>
Igrdiiup did eiplkin manygf tjiete dark word*
Aat Osbaldston wrote uoto him, shewing that
bemamtmy lord^KraceofCaocerbury. Again
ba taititf That Oibalitstoii ipakg baif wordi ^
Stl] ^ATE TRIALS, ISCh.I. i6S7.—Pnxetdii^iagaitttnhe^aopqfliiKolii,^\i
tite trcbbiihop. And tlieK be bis Reasons vrbf
he conceives, ihat bv the wurds in ihe letlen
he meiini the Brchbi>nop orCantrrburj; ivhich
" Tlie teconil wicnesi is Cadwallader Po»el,
who s.iitli, He used iliese words in a letler,
* The little vermin, (be fHlse mediaior, rhe Ho-
' cui Pucus.* And tlie bishop nf Lincoln being
ID tbe Tower, demanded of Powcl, Whether
mny of Mr. Osbaldgtun's Utters were fuund ?
wbo naswered, Thnt the/ were found ; TIkr,
•aid tbe bishop, Osbaldstim is undone,
" Thai I have thiiui>bt gnod to make a dif-
ference betniitmj lord of Lincoln nnd Mr. 0».
-baldston ; for it is confessed by my lord of Lin-
coln, that bj one of those is meant m; Lord
Treeiurer; but that shiill not convict Mr. Oi-
baldston, bat it it plain hy his nwn words ot)'
fae meant. And that b; those words sbouM be
meant Dr. Spicer, I hold ic lO ridiculous a de-
lence, that I think he could not hare deceived
liii school bo^ with it. And that b^ ' Levia-
• iban ' shouM be tnennt roy lord Richardson,
there is nocolourfurthat; thou);bforDf.Spicer
Vem coufourtded, whiit would ihe Ling or state
tAtkr bj his ruin or confiisinu i so that certain-
ly it is meant of tlie archbisbnp of Canterbury.
• — For Mr. Osbaldsion's going airay, it is not
judicially known untu me, and therefore leave
it to your lordships.
•* An* BS for tlie second. Chsree, Thnt he did
Slot and cuutrive for the ruin of tlie lord arcli-
isbiMi of Canterbury, I hold that hi^ is iniilt;,
and that he did stir my lord of Lincoln, to con-
uibiite money for that purpose.
mnn of place and quality ^ould not |;ive any
tray thereunto ; bnt that be should receive it,
tntettain it, and publish it, this stiens that he
Ind lontf a raticar and tracred towards my lord
archbiibop. And for ifae niok-names, 1 shall
find my Imi ofLiacoln gnilty ni far forth as Mr.
Oshnldston, for he did entertain these letters,
and did publish them, and it'was an agreement
and confedenicy so to do.
" By Hay of Defence my lord bishop of Liu-
coin's coaiisel did allege; 1. That there was an
a^ement between Osbaldston and my lord of
liincoln. Again, they Bntd,T;hat there was no
certain appellation of my lord archbishop of
Cfcnterhury. ' S. There was proof that my
lord orUncOln did not spcak'any sUch words at
Instable. 3. They endeavouretftn prove. Thnt
IBy lord of Lincoln never wrote any Letters
ccmtaining any tibeUbus matter ; when as there
«>aa a letterunder his own hand, which he would
not confess, although he wai brought like a best:
to the slake, ndd three times examined about it.
" Again they said, l^ai be did not recerv^
diem,' and yet he wrote an annver to tliem^.
.Again, adnnt he did receive i!<em,'yet he did
■rat publisb them, but 'inly deiivpfed them m
Mr. Walker bis secretary. Mr. Attorney well
remembertd the law, That if a lihriloos leltfr
*pfiTnte II«M«n, tfceo hemsy-Oon-
ceal it ; but if it concern n public officer, tbta
the concealing of it maka him gaittj thereof;
and thnt Ihe letters were published it most ce^
tain, for iliey were openly spoken of by womea
in the market.
" Another thing of Mr. Recorder's was this;
That if my lord bishop of Lincoln did ander-
stand Osbuldaton's meaning, jet he did not at-
derstand'that he meant my Lord Treasurer, and
my lord's grace of Canterbnrii, — Then, I jsjj
he haih senndalited my Lord Treisurer, aitd
my lord archbishop of Canterbury ; for hj his
owu writing be M)tb,Thai it wns mrantof ilide
" The neit is, the cbnrRe of a Plot laid fbr
the ruin of my lord archbisliop of Camerbn;,
but I will not condemn my lord bishop of Lii-
cobi for tliat.
" The neit Defence of Mr. Recorder wh
from this, Thst Mr. Osbaldston wrote to llw
bishop of Lincoln, sqying, ' I hope tou will
' pick oat ibe meaning,' &c. so that there wn
no confederacy and agrepinent between ihnii.
1. I say, he received the letten, and pubUibed
tliem. S. He was so t«r from nipptag tbCK
scandah in the buds, that he enquired IMw
after them. 3. That be whs ready and wilJkf
to contribute money towards the Tuia of aj
lord archbiibop of Centerbuiy.
" I am sorry thnt a man of his rank and een-
dition, should make himself compiiiion wiihi
Khool-master. Arid as for the aspersion whidi
the;? cast nimn Mr. Walker, to take away t»
testimony, I see no just cause thereof. FortbtJ
said, Either US' Deposition is impossible arid be-
yond his knowledge, or ebeth.it bii reesonstliat
moved him thereunto, nt«insulfident, Butlir
my parti know not how a better reason cinlM
given.
" Another objectbn ogainst Walker isthi^
That it WHS lung before these Letters wet
brought forth ; and thai these are uot all, twt
there should be a third letter, I say, It it a
wonder that so many were brought forth now.
But that they had been lost, or tbai my bird or
Lincoln had burnt thetn ; tor had I a frfewl
that I professed so mbch khidness to, as he (H
to Osbaldston, I shnuld be very lony thM he
should suffer for his fetters.
For the testimony of Cadwallader Powd, I
bold his testimony as fit to be taken as my lord
bishop of Lincoln.— And for the Chaise of the
Defendants counsel, for tbe subtil prosecutiim
by the solicitor Kilvert, I shall lay liule, I kno«
him lu be of a good carriage in otlier ^kuinism
Ibei efure if any fault be, I ahall only desire that
it may be amended for the time to come. 1
buld rbat these Witnelaes stand upright; un
:\s f'lr the other witnesses; I submit unto your
lordships, fur in sentence I must consider tbe
nature of tbe cause. And the persuis. Fir», 1
shall not acquit my lord bishop of Lincohi, Dor
condeinn him go much a* Otl-aldsioa. I uui^
consider the per-ons offending aud 'lie p*fso^
Bgninst whom they hare oiftnded. For U*
p«Mi« Oflfeflded, (be first is the lerd tiWB^
of England, one of his m^esty's priTj^twae*
^13] STAIX TRIALS, I^Cbaujs I. mat.—foneaitdalhiiigihtGomiimeat.ife. (814.
agRinsc OsbaldsU
And the Mcead is the meuopnliuui of ^igUud,
who h^Ii erer carried himself with great trust
nod fidelitj lenards hL) ro^istjr W<i the public
Eooil. Andlierily I bioki, that none »n accuse
him of^Cltc ieut corruplioa. In a court where
most cuiMi of the diogy are tned, I did oever
reeoiiB but pii«sia me«M|BirDni bis lord^ip
in ih« beliAlf of bdj cleipmBD, vhich ia a
thiog La be much oUened in him,
a.preberd, sud a schpolmaner. Sd; lords, I
niJi not sufier him, he is to turbuleac a.j>enon,
and scftodoloiu IibeUeri to teach and mitruct
otbcn. l.nould have him thereii>i« deprived
of alj hi* spiritual dignicif i and promotioui, that
be never have any place in the cbvcli ; iieiiber
h^kl I it fit (bat he shouU teach >cholnre,
(thould I do hioi Justine, I should a^udge him
■•[DC seTire corporal punithment :) I noold
have liim de priTcd ill thehigb-comiuiasion court,
and then ta be seton the Pillory io tliii Palace-
Yard. And that tie ion; Ita an example to liis
heji, I would have him aUo to iland in the
pillory in th« DeauVYard, and one ear to be
nailed in tha Palace, and the
And it shews a petuiant
rate hatred and malice,
that be did bng bear agjinst m; lord of Cao-
lerburjr, without uny leatoa or cause at all, tbc
he.doih not shew that he hadeverreceiredaa;.
nrong or iiyury from his ^mce.
" I come now to the other letter, wherein
Osbeldston writ to ibe hisbap of Lincoln to con-
tribute, charge! lo my Lord Treasurer, for ■ the
' ruin of tlie Utile great man ;' by'which must.
Deeds be meant the nrchbishop of Canterbury i
so ibat 1 ahall not btalid lunger upon. Mr. 0»-
baMston ; for if [here were no wiine^ses aj^aias^
him, yet I End mailer enough in his own letter*,
to prole liim guilty of tbc whole charge, and
thirefore I sentence bim wiih my lord I'mch..'
" For niT lord of Lincoln, I cannot sentence
him as a I.iheller, for there must be either >.
CQiicriving or a uuhlishing to make a man a
lH.ellcr,as Mr. Recorder well nbiencd. Bui
Ifindhimguillyorihischarge, That hereceiieij,
the libellous letters ; and of this cimrge, lliai
he ntscnied to contribute money for the tain of
ray lord archbishop of Canterbury.
" " ' ' objected. That lie concealed the
nailed in the Dean's- Yard. IdofinebimS.OOOJ. ! libel, aod ihercfore he is not inilty. Tbecon-
and imprisonment during the king's pleasure. — 1 cealing of it doth not cleni my lord bishop of
Apd I do fine my lord bishop of Lincoln 5,0001. ' iJnculn. For (as Mr. Attorney wellohaervfd)
Mj Lord Chief Justice Broaufsa. '^ My
lord*; Thee*, ore two Defendants, and they
have loade two defences. I find my l(Kd
bishop of Lincnln to be ipiiicy, ihoui^b not so
fiiil and in so high, a nature as Mr. Usbalddon.
Tbey are charged to plot and confederale to^e-
tlvr, to scandwiie two lionourable persoDi, and
to raise discord in the stale, and lO seek the
roin and overthrow of my lord Hrchbishnp of
Cautcchury. Oshaklston wrote a letter of the
9ib of January, and olfaer letters, which my
lord bishop of Lincoln is cbniiged with to re-
ceive and pubUsh. That Oshaldston is guilty
nf every part of the Charge, I ahnll not need to
make any question ; neither shall I much stsnd
open the validity of tlie witnessei^ for I see
DOlhitig but Cbnt he is guilty at all the rh^r|;e.
•' I will beiiin with the first letter of the 9lh
Jan. in which he would have two oiher persons
meant there, and not mv lord treu-urer, nnrl
my lord's grace of Csnterbury ; but the one to
be meant my lord Ricbordson, and the other
doctor Spicer.
*' Now what com^rison was there belwcMi
those too persons? The one was Lord Chief
Justice, and as for ibe other, every one knows
what be i« ; so that it cannot be meant of these
two 'persons, for there is no coinpartson be-
tween them. And for these wordi, the' lii'lc
* meddling Hocus Pocus works hi* own roiilu-
' sioo.' &c. How wonid this be tneunt of Dr.
^icer > For how did Or. .Spicer work hit nwu
qoDrusioi) t And who wuuld give no much to
CDofuuiid Dr. Spicer? He is a<i such eminent
person, that any should ^ve sn qtuch lo con-
hli»i. bim.. So ihiit tha Imict: ie wrj deu
there isa difference between a Letter that con-
rivate person, and a public officer.
jirivate pecson.
If a libcfcos
he that receives it may concenl it in his pocket,
or burn it; but if it coDcein a pablic penoii,
he ought to rereal it to some public olbcer or
magistrate. But it is true, if lie diiulge it to.
uny but to a magistrate, he is a libeller ; and-
why should jny lord of Lincoln keep these leU
ters by him, but lo (be end to publi^h iheai,
aod lo have them at all limes in a readiness U>
publish upon eiery occasion ?
" For his bcioj: degraded, 1 leave it to tboae
of the EccUsiasiical court, to whom it doth
belong. And for the other part of bis Sentence
of lh« Pillury, I am very sorry and unwilling to
give such a sentence upon any man ul* his ^t-
ing and degree. But when I consider the qua-
lity of ihfl parson, and how much it doth aggra-.
vale the olleuce, J cannot tell bow to spare
him ; for tlicse considerations that should miii-
gute, makes tlie oSencc (be greater, which mikei,
mejnin with toy lord Finrh in that part also.
" For my lord of Lincoln, I do fine bim
3,000/. and imprisonmerit. And seeing the
UlTence is against so honourable a person nt.
lay lord's grace.of Canterbury, and there it not
that he hath done'io my lord of Linculn, therc-
turein damage Ijoia with my lord Finch."
Secretary Windebanck, anrf Secretary Cook,
(lid both JTiin with my Inn) Bnimpstnp for tha
liiihop of LiticiJn, and witli my lordfinch for
Mr, Os'.-aldsion.
Mt. ComplrvUir. " Uy lords; For Osbald^
stiiQ, considering his place, I cannot but con-
denin bim very mucli, £ir itj what bath been
aiietlged, I TBcilj betwre that he did inenn mj
815] STATE TRIALS, 13 Ch. 1. 1637-
Lnrd Tr«aturer, mud m; lord mrclibisliDp of
Cwiterburj : And my lord biUinp of Lincoln,
sod Mi. UsbalilstoD, arc both guilty of criiiies
in a high nature ; one would have thought thm
my lord bithop of liacoln, being a pereon of
that pUce and quality, stioulif not hart run bim-
■elf into such daager as to bare mtKldled with
tuch matten ; for liad he not met vitb ^ood
counsel, I cQiiceiTe that he had plunged binitelf
in as deep ai OsbaldsLon in these practices.
And as for Osbaldslon's Sentence, I agree with
my lord Finch. And fbr my lord bishop of
Lincoln, [ hold "ith my lord Brnoisione. As
for my loni of Canierbury his carriage, it is
well known to be upiighi, and thererore I leave
Lord Neirburgh. " My lordi ; For Osbald-
iton, I find him guilty of every part of the
charge; fur the otiier I cannot sentence lo
deep; fbr I thiiib my lord of Lincoln U not
pillty o( the plotting and confederating, for ihe
acandaliung of those two boo Durable persons;
I leave it tu your lordsLipi judgment, and lay
all t)ie charge upon Osbaldsion,"
lh( Earl of Dortei't Speech at the Sentence
of Mr. Oshaldston ;
" Aristaile in Lis politicks, addiit) not in tbe
government, of any &cbool-master to the eier-
ciie of civil duties, achool-maiiers commonly
provi,ng tlie apes of tyraifny ; and being used
to imperiousneis over scholars, if you put a
aword ofjustice into his hand, you mav easily
guess how he will lay about him io the state
uud CLiy, I know not with wliat apirii of va-
nity this school-master was possessed, but ne
■ee the monbtrous birihofit ; iftha pedant had
kepi within his rules, he might have been laoght
not to have disturbed iiovernnitnt. Look upon
this pragmatical person, and behold the fact,
and nhat were the motives, what the rentoiis
to bring himself upon the stage. His ill
tJMiughts eiprtsc in iak as black ai his crime;
hiapen woaiteeped in vineKarand |;ali. What
was it that stained the bifibup of Lincoln'i
with tbe poison of ignominious liilei 1 It
Uie pedant. Wlio was it, tiiat as a thief that
had stolen another's itood name away,
bum my letters, on purpose to go in darkneta
of the night F It was a pnraon. Who was it
that endeavoured to siain the purity of my
lord arcbbisbop's bonotir with faul aiperajons
of titles, ' little grace, little urchin, vei
&c. } It was Mr. Chhaldston.
■< Well, I will sueak what I think, I fear
but God and the king, and I -speak in t rath, I
am sure I shall olTeiid neither of them, I have
enquired of them who are learned in the laws,
who say, Tliat the plainest fense is to be token.
I'lie divines will tell you, ihut ilie easy places
shall e:iplain the more obscure. And il any
man nuuld. examine those leltcta, and with ju-
dicious comparing the titia oi ' little grace' with
tkb other, he will be forced to coofesi the sense'
of ibe other, or elsr be blind at nouO'diy,
But PS truth may be cleared by strong and
solid reason, so it may be darkened and '
■Proceedaigi againit the Bitlinp rf Lmeobi, [MG
dowcd by the coloun of probability of appear-
" Bat, my lords, I think tbe tehool-inatter
alleges his services to tbe CoinmoDwe«ltli, and
his beiiiK alighted for it; that be hath been
these many years, and dedicoted bis pains and
time tur the good of the flowers of the kingdom,
gtneraia dtliemtiir. But I will consider him aa
a man subject to his passion, (which to lake
away, were to take XM nan hiniseir:) I i*iU
allow him his infirinities, but observe « little
his envy, see his metits and deserts, which he
hath til foullv abused, with tbe hen^iht of inao-
lency ai>d bold accem, tn tli« very seems of
empire andgovernmeut, todiedisi;rticeDf those
men of whiph the Common wealth consists. I
know not, (my lords) tbe fault of tbe man ma*
iratisport my Speech that I abuse your pati-
ence; but I shall i;ive my censure of hnn ; I
learned in the universiiy, biiw that a syllogism
doth ever follow the worst pert, * senuitur de-
' teriorem ad partem,' I am tnre his letter
doth : he might have found a better mediuio lo
make up a syllogism of a libel, fur be hath con-
cluded in the worst body of all (he figurts, viz.
in Bocardo: So I must concur with my loid
" As fur my lord of Lincoln, linked In thb
cause, 1 honour the man lor many causes, in
many rvlations, but for his secreiarv Walker,
and the- clerk of his kitchen, and the rest
(wbere-ever tbe leiters were found) ; they have
dealt like Acteun's bound, that turnett against
and devoarrd his matter; the falsa secretary,
ilie lliijnst slGwurd, and unlawful clerk of the
kitchen, wki were fed at my lord bishop of
Lincoln'a (able in his prosperity, and now in
himself, and agree in tbe cen>ure whicli (be
lord chief justice Bramstone hath given against
him. He did not as Peter did, when he had
denied lilt master, gone out and weep bitterly
fur hii ollcnrr ; but he justifies hmsetf, and
therefiire he isbllen mto ihe lime-twigi of hi*
adversary."
The Earl of Arundel. " My lords ; For
OibaldiCOn, I Gild him guilty of every part of
it^e charge ; and that he is not sentenced in a
higher nature is, ' cauia de bona fortuna,' for
had lie betn suSered to have peraisied in his
course, he liad surely fulleli into most daoger-
out error. And ilierelbre I join in sentence
for him with my lord Finch. 1 am sornr for
mvlord biibop of Lincoln, he hatli shewed him-
self very indiscreet, being a person of place and
quality, he nuw falls low in big estate and dig-
nity ; nod tliesethings will make his spirit fail
lower thin his bodv ; and therefore I agree m
all things with my ford Finch."
Marquis Hamiitm. '> My lords; For Os-'
baldston, I find him guilty oF the whole Charge.
For jny li^ bisbdp of Lincoln, I cannot find
him so deeply guilty as Osbaldttou. But cer-
tainly my loid's grace of Canttrbury bath beess
eic«edin<glf vrrooged. Therefore' I give dtr
617] STATE TRIALS, 13 ChakluI. 16S7.— for KtmdiUixmg the GotieTnment.tre. [SIS
magM with ray lard Finch. And for Oabald-
Moa, I umtcncchim nitb my lord Finch, And
as for mjr lord bishop ai Liucoli), I join wilh wy
lord Brampston."
The Enrt of Manchttler, Lord Privy-Se«l.
" M; loidi ; For OsbuldBioo, if jou take hi>
words, hii meaning, and the end, ibey niU ap-
fear to be very heinous. 1. His words, to
ring contempt and disgrace upon my lurd bi-
shop of CanierbDiT. 9. His menuing is ei-
vressed in the noras tbemselvea, lo be oguiast
0 honourable i>ersons. 3. And for the end,
tEuit *
* Setting aside all the witnesses,
denm mv lord Bishop of Lincoln out of his own
month, tor he denies all. 1. He denies the re-
oeiving ol the letter. 3. Tho entertaining of
them. 3. The publishing of them. Not as
Peter did when he had denied his Master, to go
out and neep bitterly for liis offence, but to
justify liimsell': Yet how cau mj lord of Lin-
coln deny the letter tliat ha wrote with his onn
haad, and yat he will not confess it to bo his
own letter.
" And after he was prisoner in die Tower, lie
called to Mr.jCadwaii&iler Powel, and demand-
ed if any of Mr. Oslinldstou's letters were
feund? Who answered. That they were found.
Then said the bishop, Osbaidstoo is undone.
3. lie deured that ibey should be kept clese
and secret. 3, Though they were kept dose,
and only pnt iota the pocVet, if they concern a
public person, he is a libeller.
" For Osbaldston, besides all the corporal
Knbbment, I hold fit that he should acknow-
lg« his oSence in writing to mj lord's grace of
Canterbury.
" And as fur the bishop of Lincoln, I hold
that he should also make on acknawledgment
Lincoln IS under cannnical obedience to the
archbishop by bis oath', and disobedience is a
breach ol his oath ; therefore he should nc-
knowledge bis offence under his own hand.
" For my lord'sgraceofCanterbury, hehath
erer carriM hi:nae!f with much gravity in his
place, and pieiy towards Uod and the kin^
and the public good ; therefore I leave him in
bonour as I fauud bim, and senience the bishop
of Lincoln witli mv lord Bmoistone : and Os-
bsldston with my lord Finch."
Tbe Earl of Uo^^niJ Joined in sentebce
trith my lord Finch for Osbaldston, and wilh
my lord Bramstooe f^r the bishop of Lincoln.
Tht Lord Kt^er. « My Itiids; If I be not
mittaken, it is misqiending of time in opening
the cause, thetefure I sbairuse as much brevity
■t may be. And, first, l shall begin wilh the
first leuer, and think it fit that this letter, and
all the copjei thereof, should besuppresMd.
Yet I mny make this use of it. That Osbaldston
and my lord bishop tiari a long time coniinued
satrrcoune of wniiug acand^ioM tetter*, and
falsenews. — Again, I make this use of it, That
my lurd of Lincoln having received such n let-
ter so scandalous against the king and imle, did
coccenl tbe game.
" My lords, for the letter of the gtli of Jnn.
my lord bisliop of Lincoln doth deny that he
receiied it; and therefore I think that be con-
ceived it to be a scandalous letter, which made
hini to deny it A^ain, h; kept the letters by
liiro, that he might have the words rendy to tell
unto erery one at his pleasure. And as for the
letter of the 30th of Jan. he denietli to make a
perfect answer to it.
" It was ihe saying of one that was late
Lord ChiiDcallor, ' That be never liked a cause, ,
' where there were divers Answer* in it ;' nci*
iber can I like ihis, when my lord bishop of
Ijncoln both been so often examined, and will
not make a, perfect answer, for he bath thrice
been exaniined upon (his letter, whicli is a
shrewd argument unto me, that he knew well
that there was scandaluus matter contained
in it.
" Neit, my lords, is the publishing of these
libellous letters, and I think it very fit that my
lordof Lincoln should be charged wilh tlie pub-
lishing of theiD. If they were in the band-boi,
then that was a pubbshing of them^ and be
delivered a letter to hi* secrataty, which was a
publishing thereof. — But it is true, if a man de-
liver a letter to his secretary, and cammand
that be should keep it secret, I concdve that is
not a publishing of it. IftberewBre no other proof
but this, I should think my lord biabopof Lin-
ctiln end Mr. Osbaldston to be guilty, not only
sbop of Canterbury, end ihe state. — As for
Witneeses, alihoogh there is no need, for it it
plain without witnesses, yet there be divers
witnesses that prove it.
•■' Now it rtmuns that I should proceed tO
Censure. It concern* the late Lord Treauirer,
one of his majesty's privy-oouncil, and my lord
archbishop of Canterbury, two honourable per*
ftithfal mediator for him t
and yet notwithstanding
all this, my lord of lineoln hath done man<r
heinous olftnces against the said archbishop of
Canterbury. Fpr Osbaldston his Censure, I
agree with my lord Finch, and do add tbcrcunto,
confession of the offiaice,andtabroissi*n. And
for my lard bishop ofliecrin, I agree wilh mf
lord Bramstone."
The ScKTiNcE of the Court was,
". That Mr, Osbaldston should be fined
5,000/. to the king, and pa^ 5,0001. dain^es to
the archbishop ; be deprived of all spiriiuaL
diguitiei and promoiions ; imprisoned during
th9 king's pleasure, and moke sabmisaion. — '
That tbe bishop of Lincoln be fined in 5,000{.
ta the king, and SfiOOl. to the archbishop; to
be imprisoned during ibe king'i pleasiue, aiql
619] STATE TRIALS, IJCh.L \6i7.—Pi-octedinsie^i7MilieIiit}u>pqfLiacoht, \&20
panions could bsTC trnntported bim into rb*
most unjiiatiliaUe actions. He had a racully
of making Tclatjoiis oftliings dune in liU owd
presence, nDd discourses matle to liimiell; or in
ius own hearing, with all ihe circumstances of
answers, aud replies, nnd upon arguments of
^reut moment; nil which, umiii exaiui nation,
«ere still found tu huve nothing in ibcoi that
itas rtHJ, Luc lu b« the pure eil'ect of hi* onn
intention. After lie wasseoteucedin tlieStnr-
C'haiiiber, same of his friends resotteil to him,
to Uraeni, and condole xiih him fur lusmL>l<iT-
tune, nnd some of tbem seemed to wonder that
in nn afiair of such n nature, lie had not found
loemis to have mode souie Submusioti, aud
Cotnposition, that might have prereuied the
publjc hearing, which proved so much to bis
prejudice in point of reputation, as veU at
profit. He answered tliem with ull llie for-
mality imaginable, ' That thej had reason io-
' deed to wonder at him upon the event ; but
' when tliej should know how he bad governed
■ himself, lie believed they would cease to think
' bim woithy of blame.' And ihen related to
them, ■ Ihflt ai ^on a* puhticatiDn had passed
■ in his cause, aud the books were taken oul, bo
' had de»ired his council, who were all able
' men, und some of them very euiiueot, in lb*
' vacation time, ami they at most leisure, to
■ meet together, and caretuUy to look over, and
' peruse i3l the Evidence that was taken on both
' sides; and ihnt then ihey would attend liim
' such a morning, which be appointed upoD
' their consent, at his own house at Westmiu-
' ster; That they come at the lime appointed;
' and heing then shut up in a room logeiber, ha
' asked (hem, whellier they had suScientlj pr-
' lused all the Book), and were throughly m-
■ formed of hii Case i To which they all ao'
' swCred, that they had not only read tbem all
' over tngether, bat had severally evrry man by
' bimseli perused them again, and tbey b&-
' lievcd they were all well informed of the
' whole. That he then told ihem be had de-
' sired this conference with them, not only ai
' his council, by whose opinion be meant lo
' govern himself, but ns bis particular firiends,
' who, he was sure, nould give him ibeir best
' advice, and persuade him to do every thing
' ni ChejT would do themselves, if they were in
■ bis condition. That he was now offered to
' make his peace at court, bj such an bumble
' Submiisiun to the king, as be was most in-
' clined, and ready to make ; and which ha
' would muke ihe next dav after liii cause was
' heard, though he should be declared to be in-
' nocent, of which lie could maki; no doubl;
' but that which troubled hmi for tbe present
' wa^ tliat tbe infamousness of the Chaif;e
' againtt him, vrbich hod been often expoied,
' and inlai^ed upon in several motions, bad
' been so much taken notice of throoeh the
' kingdom, that it could not consist with hn
■ honour to diven the bearioK, which would be
'imputed to his want of confidence in hii inno-
' cenGa,«ij>ce men did not suspect his courage,
< if he durst rely upon tbe other; but th»t tM
to make submission. — And Osbaldston was
sentenced to stand in llie pillory in the Dean's-
yard, before bis own school, and bii ears tu be
only nailed to the pillory."
It so happened, though the report was tbal
Osbulilslon was run away. Chat he was in Court
standing ,n the croud at the Censure; and
when lie heard the said censure of some of ibe
lords, he )>u(;SBed the oauie would go ngninst
bim, and knowing the rule of the court. That
if ihe warden tbiiuld espy him in courl, be'
nii};lic command Iiis tipstafl lo appreliend bim ;
as soon at the major ^art of tlie court had post
Censure upon bim, although the Lord Keeper
hall noi then given hii sense ; therefore he got
out of court, went tu bis study at the school,
bumi some papers, and writ on a paper, wbich
be lelt Oi. Ills desk, ' That if the archhisbc^ en-
' quire after me, tell him, I am gone beyond
' CHUierhury.' \%hereupon messenger* were
sent lu ibe port-towns in apprehend him ; hut
be ky hid in a private house in Drury-lane,
till the parliament mi-t in November, 1C40.*
Concerning this Bishop and this Case lord
Clarendon writes thus : " Dr. Williams, as ii
(aid, was a man of a very imperious nnd fiery
temper; he bod been Keeper of tbe Great Seal
of Eiielaud in the time of king James. After
his removal fntm iliat charge, be had lired
splendidly in bis diocess, and made himself
*ery piipular amongst those who had no rever-
ence tur ibe court i of which he would fre-
quently, and in tbe presence of mbny, speak
wiib too much freedom, .and tell many stories
of things and persons upon his own former ex-
perience ; in « hich, being a man of great pride
and vanity, he did not dways confine himself
to a precipe veracity, and did ufieu presume in
those unwary discour«es, to mention tbe person
of tbe king with ton liule reverence. He did
aftcC to be thought an enemy to the archbiahop
of Canlerbury ; « bote person Iw seemed ei-
ceedinoly lo conieinn, and to be much dis-
pleased wiih those Ceremonies nnd Tnnovationi,
as ihey were iheo called, which were counta-
nancrd t>y tbe other; and liod himself pub-
lished, by his own aotbority, a Book against
the usi:iK those Ceremonies, m which there was
ranch good learning, and too httle gravity for a
bishop. His passioa and his levity, gave every
day great advantages to thuse who did not love
biai, and tie provoked too many, not to have
those advonl ages made use of: so that, ufUr
several Informations against him in the Star-
Chamber, he was sentenced, and fined in a
great sum of motley to tbe king, and committed
pri-oner to ihe Tower, withnnt the pity, or com-
passion of niiy, but those, who, oul of hatred
to the governmeul, were sorry ihat ibey were
withiiuC so useful a champion ; fi>r he appeared
to be a man ol a very corrupt oiiture, whusc
* Some curious purticulars, respecting this
Case, are collected fay Mrs. Macaulay, in the
second volume nf her History, p. S34 et seq.
tai] STATE TRIAIf, IJOkahlssI. l6i^.-fi>r^eandaIixi^lhtGoKrmllenl,^!e■ [S29
transported liim, that he had done nil he cuuld
insinuated, * that tlie court nni
what ibey had done;
' KM RwlTCif, M ha «aid before, the next da;
' liter he should he lindioaied from those
' odious Mpenions, be would cast himself at the
' kipg's feet, with nil the hiimititj, and sub-
' mission, which die most guihj man coulil
' make prufeuion of. U nas m this point he
' deifcireil thpir advice, t» which he would, nitli-
' out ndhrnng to hi* own iDcliantioo, eimrelj
' confiinii himself; and therefore desired tbem,
* siiiKly ill order, to give him ibeir advice.' He
repeated the sereral, and distinct discourse
ererj matt had made, in which he uas m |judc-
tual, that he applied ibote phr:ises, and ex-
prewiuns, and manner of sptecli to tlie several
inen, which thej were all taken notice of fre-
quently lo u>e ; as many men have some pe-
Ckdiar HOrds iu discouise, nhich they are most
delighted with, or Ly custom most addicted to :
and in conclusion, ' That they were uiumliaolis
' in ibeir judgDient% ; that he could not, with
' tbepmervatioa of bis lionour, and the opinion
'of his integrity, decbnelbe public hearinfi;
' wbec« he ma>t , be unqocsLoDably decloTMl
' intiocent ; there being no crime, or misde-
' meanor proved agatnsi him insucb a manner,
' as could make him liable to censure : thfy
' aU CMDDiended bis resolution of submitting to
' the king as soon as he had oude bis innocence
' lo appcari and cliej oil advised bim to pur-
* Me that method. This, he said, had swayed
'bim; and mtide bim declinethe other cipedi-
' eot, that had beeu projiosed to him.'
" This rektioQ wrought upon those to whom
it was made, to raise a prejudice iu them
aetinst the justice of the cause, or the reputa-
tma <if the council, as they were hiOE.tiiiclmed;
whereas tJiere was not indeed the ieaii bliadow
ofiniih in the whole Relation; except that
there wal such a meeting, aud conlerence, as
W.1S mentioned, auil which had been consrnled
10 by tlie bishop upon tlie joint desire, and iin-
portunity of nil tlie council; «ho, at that
Conference, unanimously advised and desired
him ' to use all the means and friends he
' oould, (bat the cause might not be brought to
'hearing; but that he should purchase bis
< p«ace ut any price ; for that if it were heard,
' he would be sentenced very grievously, and
* that there were many things proved against
■ him, which would tn much reflect upon his
< liJDOUr, and reputation, and the more for
■ being a bishop, that all his friends would
' abandon him ; and be for ever after ashamed
* to appear on his behaif.' Which adrice, with
peat p3s>ion, and reproacbes upon the several
persons for their presumpiion, and i|(nurancein
matters so much above tbcm, be ulterly and
■comfiiliy rejected. Nor indeed was it pos-
sible, at that limi!, for him lo have made his
peacei tbiibnui^h upon some foimer addresses,
■nd importunity on bis behalf by some persons
of power, and place in the court, in which the
qneeo herself bad endeavoured to have done
km ooud offices, the king was inclined lo have
■avrd him, being a bishop, from the infamy lie
muit unricTKo by a public Trial; yet tlie bi-
shop's vwuty bad, in (boM conjunaurts, k far
prevailed witb some of his powerful fnend*
' to persuade bim to that cumpu»liun i' Upoa
wliich the king would never hear more any
perwiii who moved on his behalf.
'< It had been once mentioned to him, whe-
ther by authority, nr no, naa not known, ' that
' hia peace should be made, if he wotild resign
' Ills bishiipric, and deanery of Westminster, for
' hf had that in commendaai, and take a good
' bishopric in Ireland ; * hirh he positively re-
' fiiJied 1 and suid, he hud much todo to defend
' himself against the Archbishop here; but if
' he was in Ireland, there was a man, meaning
of Slraflord, who would cut oEf his
head H
[hin
Tliis Bisbop had been for some years in the
Tower, by the Sentence oF the Star-Chamber,
befure this parliament met ; when the lords,
who were the must active and powerful, pre-
sently resolved to have him at hberly. Some
bad much kindncf^s for bim ; iint only as a
known enemy lotbeorcbbithopof Canterbury;
but as a sapporter of those npioions, and ihoje
persons, which were anninst the Church itself.
And hi was no sooner ut liberty, and brnujiht
into the liouse, but be defended, and seconded
the Iiird Say, when he made an invective with
all the malice, and bitterness imaginable, agniust
the archbishop then in prison ; nnd when ha
Iwd concluded, tbnt bishop said; ' that he had
' lonK known that noble lord, and had always
' believed him to be as well aSected to the
' church as himself;' and sq he coiiunued to
make all his address to that lord, and those of
the same party. Being now in fu I liberty, and
in tome credit, and reputation, he applied
himself to the king ; and m^dc all uosiible pro-
fes-ions of duty to his majesty, and leal ro tlio
church ; protesting ' to have a perfect detes-
' tatlon of those penons, «hu appcarr d to have
,' no atfectinn or duty towards his inaiesiy, and
' of all evil intentions against tiie religion esta-
' blibbed ; and that the civility he had eipres<ed
' towards them, was Only out of |ratitudt' tbc
' the good wiK tliey bad tbewed lo him; and
■ especi'illy that he might the better proraota
' his majesty's tervice.' And it being his turn
shortly after, asdran ofWettmineter, to preach
before the king; he took occasion to speak of
the Factions in Retteloa ; and mentioning the
Presbyterian Discipline, he s^iid, ' it was a go-
' vemment only lit for taylurs aud shoemakers,
' and the like : not for noblemen, and gentlc-
' men :' which gave greaf scandal, aod offence
10 his great patrons ; to whom he easily recon-
ciled himself, by makins them as merry with
some sharp sayings of the court, and by per-
fbnning more substantial offices ibr them.
" When, upon the Trial of the carl of .^^traf-
fbrd, ic was resolved lo decline the judgment
of. the house of peen, aud to proceed hy Bill
of Attainder; and thet^upon it was very unrea-
sonably moved, ' That the bishops night have
' no vote in the pusiDg that act of pariiainent;
623] STATE TRIALS, ISCh.I. 1637.-
' because they pretended it was to hare their
* iiand in blood, wliich urn ugiiinit an old
' canon i' tbis bishop, witbout communicating'
with an^ of his brethren, very frankly deciared
hit opinion, 'that they ought not to be present ;'
and offered, not ouly in his own nnuie, but for
the rest of tbe bishops, ' to withdraw slwoys
' when that business nas entered upon :' and
•o betrajed a fandamcntal rij-ht of the whole
Order; to the grent prejudice of ilie king, and
(o the takinjF awa^ the life of that person, who
Ceuld not otherwiic have «uSered.
" And shorllj after, when tba king declared,
that be oeithei would, nor cuuld in consci-
ence, giTe bis royal aasent to ibat Act of At-
tainder; when the tumults came about tlie
court with noise and clamoar for justice ; tlie
lord Sny desired the king to conrer with bis
bi^ops for iha satisfiiction of his conscience ;
and desired him to speak with that bishop in
the point. After much discourse tOKether, end
the king insisting upon many particnlnn, which
night indue* otlters to consent ; but were
known to himself to be talsa ; and therefore
I lie could neter in conscience give his own con-
tent to them; the bishop, as nath been inen-
tioned before, amgl^st other arguments, told
him ; ' that be mwt consider, that as he had ft
prirate cnpacity, arid u public, so lie bad a
public conicicnce as wett as • private ; that
though his private conscience, ass mail, would
not permit him to do an net contrary to his
own onderitanding, judgment, and consci-
ence; yet his public cnnidence, as a king,
nhich obliged him to do all things for the
goad of liii people, and to preserve his king-
dom in peace far himself and hii posterity,
would not only permit him to do that, but
wen oblige, and reooire him. That lie saw
in what commotion tlie people were ; that bis
own life, and that of the queen's, and the royal
isiue. mJEht pruhahly be sacrificed to that
id it would be very tiraiige, if bis
should prefer tbe life of one singli
private person, how innocent soever, before ell
those othEr lives, and the preservation oftbe
kingdom.'
" This was the irgu mental ion of that un-
happy casuiit ; who tmly, it may be, did be-
lieve himself; for towards the end of the wnr,
and when the king's power declined ; he, being
then an archbishop, did in person assist the
rebels to take a castle of the king's ; in nhich
there was a garrison, and which wh t^en by •
■Froe:e4i»gi a^ikst the BiAcp qfLincotn. [624
loni; siege ; tecnttse he might thereby tha
' filer enjoy tbe profit* of his own estate, whidi
■y thereabouts. Upon all these great servicet
he had performed for tlie party, he grew every
day more nnpcriDUB; nnd afier the king thonght
it necessary to make liim archbishop, of York,
which, lis tbe time then was, could not Qoalifj
I mure harm, and ml|bt posdbly dis-
pose, and oblige him to do some good ; he car-
ried himself so rnsoleniiy, in the house and oat
of the bouse, to all persons, that he became
much more odious universally, than ever tbe
other aiclibisbop had been ; having sure more*
nemies than be, and few or no friends, of
bich the other had abundance. And tbe
great hatred of this man's person and beha-
viour, was the greatest invitation to the house
of commons so irrCfiulnrly to revive that Bill la
remove the Bishops."
Wilson, however, in his.Hlstory ofthe Life
aad Reii;n of James tlie First, speaks verj
InvouraUy of him^ and Hacket, bishop of
Litchfield (who had been bis chaplain) haa
left an ample and encomiastic account of his
Lifie. He waietinucAui ob ulero; yet Wilson
tells ua tltat his iiitimnc; with the countesa
of Buckingham gave lise to scandal : he had
been chaplain to Bacon, from whom the Great
Sen! being taken in May 1691, it was in Julj'
following (haviug been held two months E>j
commissioners) given to Williams, as Lord
Keeper. In tbe same month he was mads
bishop of Lincoln. He held the seal somewhat
more tlian four years. From Lincoln, he wa*
translated to _York in 1641, ind he died in
1650. lie seems to liave been of ■ rash and
insolent, though servile, temper, and of selfish,
temporising and trimming political conduct.
For more respectinj; him, see tlie Note ta
vol. 3, p. 1163, and tbe Case oftbe twdvn
Bithops, A. t>. 1641, poif.— He had prmched
king James's funeral sermon, and piintrd it
with the title of " Great Britaiu'i Solomon."
The text was 1 Kings, c- li. rer, 41, 4S, and
part of 43, Of the Discourse Harris in his
Life of James E^rn some ^jieciraens, which will
probably be tufticieni for most readers. The
Battery IS alleasi asgrossas might be expected ;
the siyle is pedantic, agreeably to the taste and
practice of the lime. The preacher exhibits
sufficient powers of invention in his pniises of
the modem Solomon, and ver^ considerablA
industry nnd ingenuity in the discovery of i*.
semblances between him and his prototype.
j,:„l,ze.:,, Google
SS5] STATE TRIAJA 13 Chaklzs L lBS7.—'l^ieKmg^tuiJ<AnSha^dai,aq, [930
147. - Proceedings in. tlie Case of Ship-Monet, between tlie King
and John Hampden,* esq. in the Exchequer, 13 Chaeles I.-t-
A.D. 1637.
The Speech ofTiioiiAS Lord CovsxTkr, Lord
Keepei of ibe Great Seal of Eaglaod, b;
command froin his maj«»j, to all theJudgea
of Assiie of England, in the Stat Chamber,
Jane 17, 1635.
My Lords ihe Juilges ; The Tenn being done
and ended, the Assize* are at hand : ;ou are to'
divide jourseWes fur jour several circuiia. Cir-
caits are for tbe senice of the Liing and the good
■ " Mr. Harapdeu was ■ man of much greater
conning, and it may be, of the most discerning
spiril, and of the iccatest address and insinua.
UaD to bring any thing to pass tvliich he desired,
ofanr man of tliat time, and who laid the de-
^n deepest. He wns a genllemnn of a good
ntraciion, and ti fair fortune, vho, from a life
of great pleasure and lictnce, hud on a sudden
4«tired to eitraordinary sobriety and strictness,
and yet retained bis usunl chenrfulness and af-
■fabilrty; which, tngether with the opinion of
hit wisdom and justice, and the courage he had
fbewed in opposing the Ship-money, raised his
reputation to a veiy great height, nut only in
Buckinghamshire, where he lived, bntgeneraJly
throughout ilie kingdom. He iras not a man
€if many words, and rarely begun the discoone,
ar made the first entnince npon any business
that was BSSUTDed ; but a very weighty spenker,
«iid after he had heard a full debate, and nb-
served bow the house was tike to be inclined,
took up the argument, and shurtly, and dearly,
and craftily, so stated it, that he commonly
conducted it to the conclasion he desired ; and
■f he found be could not do that, he maa never
without the detcerity to divert the debate 'to
Another time, and to prevent the determining
any tliiag in the nenative, which might pro»e
inconienieot ia ihi; fuiure. He made to ^reat
A shew of civility, and modesty, and humility,
■nd always of mistrusting his own judgment,
wad efteeming his with whom he conferred for
tbe present, inat he seamed to have no opinions
ar resoluiioni, but such as he contracted frotn
the inFormation and instruction he *reccived
tipon the discourses of others, whom he hnd a
Konderfiil art of governing and leading into
his principles and inclinations, whilst they be-
ttered that hfe nholly depended upon iheir
counsel and advice. No man had ever a greater
Kwer over himself, or was less the man that
seemed to be, which shortly after appeared
to errry body, when he cared less to keep on
the enastjue." Lord Clarendon,
To winch, when relating the circutostance of
lu& death, he adds :
" He was a gentleman of u good family in
Buckinghamshire, and bom to a fur fortune,
and of a most civil and nfltible deportment.
In his entrance into tha world, he bdUlged to
ofdie people ; they are the execution of tha
king's laws, and administration of justice. lu
the Term, the people follow and seek after Jus-
tice ; but in the Circuit, Justice foliowelh and
seeketh after the people. So gracious is tbe
frame nnd constitution of the king's govern'
ment, that twice a year, at the lea^t. Justice fai-
loweih the subjects home to ihciroWn doors;
which,Bs it is a great ease Co the trouble, charge,.
and travail of tlie country, so it givelh the pecr-
himself all the licence in sports a
and company, which were used by men of tbe
most jolly conversation. Afterwards, he retired
to a more reserved end ruelaacboly society, ye
preserving his own natural chearfulness, and
vivacity, and above all, a flowing courtesy tn
all men; tliough they who conversed nearly
with him, found hiro growing into a dislike of
the Ecclesiastinal Government of the Cbucch,
yet jnost believed it rather a dislike of some
churchmen, and of some introducements of
theirs, which he npprehendsd might disquiet
the public peace. He was rather of reputation.
in his own country, than of public discou^,
or liune in the kingdom, before the business of
Ship-money ; but theu ha grew tbe argument
of all tongues, every man enquiring wba, and
what he WHS, that dorst, at bis own charge,
support the liberty and property of the king-'
dom,. and rescue his couinry, as he thought,
from being made a prey to tlie court. His car-
riage, throughout this ai;it.ition, wjis with that
rmre temper and modesty, ihnt tliey who watch-
ed bim narrowly to find so!t>e advaiitage aKBinst
his person, to nuke hioi less resolute in his
cause, were compelled to give him a just testi-
mony. And the judgment thtit was given
against him, infinitely more advanced him,
than the service for which it was given. When
this parliament begun, being returned knight
of the shire fur the county whtre be lived, the
eyes of all men were fixed upon bim, as ihe:^
Palrie PtUr, and the pilot that must steer the
vessel, tbrougii the tempests, and rocks which
threatened it. And I am penuaJed, his power
and interest, at that time, was greater to do
good or hurt, than any man's in the kingdom,
or than any man of his rank hath had in any
timei for his reputation of honesty was uni-
versal, and his affcctjons seenied to publiclr
guided, that no corrupt, or private ends cnul^
Biassthem.-^He was of that rare al&biliiy, and
temper in debate, and of that seeming buioility
Slid submission of judgment, a^ if he brought
no opinion of his uwn n-ith him, but a desire of
information, and instruction ; ye[ he had so
subtle a way of interrogating, and, under the
notion of doubts, insinuating his objections,
that be infused his own opinions into those
from whom he pretended to learn, and receive
8S7] STATE TRIALS, ISChaursI. IGSl.—neKingagaMUJtAnllanfdat.aq.l^^
equal riglit between poor and rich ; the parti-
culara are left unto yourselves, as ihej happen
in^rnurCitcuiti. Out since you are sent by iba
kjiig to hear [be causes uf the people, it is bis
majesty's pleasure, that jnu so bear and order
It hath been tbc custain, that before your
Circuit you sbould receive such Directions as
the king, or bis counril, ihinks seasonable to
impart unto you, rorthesen'iceof tbekinijand
weal of the people : In tbe deckring obereof, I
sbtll say little of the jutC acts you are to do
between party aud party, only that you do
the same, I hat they may Jii
plain to bis majtsty eilher lor denial or delaj
of Justice.
or ihe Trial of capital oflendere, I thail loy
u little; that part of Justice moTeth in Bfraine,
them. And even with tliem wljo were able to
preserve themselves from bis infuBions, snd dis-
cerned those apinioBs to be fixed io him, with
which they could not comply, he always left
the cbanicter of nn ingenious, and conscientious
peisOD. He nas indeed a very nise man, and
of great parts, and pussrssed ivitfa the most ab-
*olute spirit of popularity, and the matt ab'
solute faculties to govern the people, of any
man I ever knew. For tlie lirst year of the
piirliament, be seemed rather to moderate, sud
■often the violent and distempered humours,
than to inflame them. But wise and ditpos-
sioned men plainly discerned, that that mode-
ration proceeded from prudence, and observa-
tion that the leaaun whji not ripe, rather than
that he approved of the moderaUon ; and that
, he begot many opinion!, and motions, tbe edu-
cation whereof be cummiited to other men ; so
to far dii^aisitig his own designs, that he seem-
ed seldom to nish more than was concluded ;
and in many gross conclusions, which would
hereafter contribute to designs not yet set on
Jbot, when be found tliem sufbciently backed
by majority of voice;, he would iritbdrnw him-
self before the question, that lie might seem
not to consent to so inucb visible unreasounb'e-
netSi which produced as great a duubt in
tome, as it did approbation in olbers, or his
integrity. ' What combination soever had been
Ariginnlly with the Scots fur the iniasion of
England, and what fiirtber was entered into
afterwords in favour of them, and to advance
any alteration of the government in parliament,
no man doubts was at least with the privity of
lbi« gentleman.
" After he was among those members ac-
cused by the king of Ui^h Treason, he was
much altered ; his nature and carrinae seeming
much fiercer than it did before." [Upon this
passage Mr. Laing bos a very shrewd obiei va-
Itoii m relation to the character of king Charles,
■nd the sentiments respecting him which his
conduct had inspired.] " And without ques-
tion, when he first drew lii* sword, lie threw
away tbe scabbard ; for he passionately op-
pmtrd tbe overture made by the king for a
treaty from Nottingham, and as emiuputlv, all
expedients that might bave produced any ac-
commodations in this tjiat was at Oxtbrd ; and
was principally relied on, to prevent any infu-
■tons which might be made into the earl of
Essex towartls peace, or to render ibem
effectual, if they were made; and vrns indeed
inucli more relied on by iliat party, than tho
gMMTtl himself. In ih* fint «DCnincm into (be
troubles, he undeitook the coQimand of a resi-
nent of fool, and performed the duty of^a
.olonel, upon all occasion*, most puuctoalJy.
ile was very temperate in diet, and a supreme
governor ovor all his pajisinus, and aSections,
and had thereby ii great power over other meu.
He was of an industry and vigilance not to h%
lired out, or wearied by the most laborions;
and of parts not to be imposed upon, by tbe
most subtle, or sharp ; and of a peisoual
courage eauni to his best pans ; so thnt be was
~ enemy not to be wishrd wherever he miglit
ve been made a friend; and as much to be
apprehended where he was so, as any man
uuld deserve to be. And therefore bis death
'ae no less pleasing to tbe one party, than it
ras conduied in the ntlier. In a word, what
rai said of Ciuna, might well be applied to
im ; • he had a bead in contrive, and ■ tongue
to persuade, and a iiaiid to execute, any mis-
chief,' His death therefore seeuieid to be >
great deliverance Co the nation," -Lord Cla-
t " Our greatest news here now is that we
bave anew Attorney General (William Noy),
which is news indeed, considering the humour
of the man, how tie hath been always ready to
entertain 'any cause whereby he might chsh
with the preragntive, but now, as Judge
Richardson told liim, his bead is full of Pn>-
clamauons and devices bow to bring Money
into tbe Eicliequer. He hnth lately found out
among tlie old Records of the Tower smne pre-
cedents for raising a 'lai called Ship MotKj
in all the port towns when the kingdom ia in
danger." Jamet Howell's Letters, iliS, B. 1,
sect. 6, letterxi, to sir Arthur Ingram, dat. Jan.
30. 1633(1634)- Uther particulars of ibisNoj
occur in other letters of Uo»ell. S"me men-
tion of him as a lawyer wb« made by Tburlowr
C. and BuUer J. in'tl^e Case of the bisbupuf
Lnnd.m V. Disnry Fylche iii Dom. Pmc. 178.
(See Cunningham's tiw uf Simony.) " Mr,
Noy," say's "Selden, (Table Talk) "brought in
Ship Money first for maritime 'omii, but that
was like putting in a liiile auger ibot after-
wards you may put in a sreaier. He that pulls
dnwn the first brick d<>e« tbe miiin work;
. afterwards it i< easy t' pull down tbe walL
Un rhi' Dlhce of Attorney General and ibe
operation of tbe offii-e up n tbe ctiaracier and
conduct nf ihe olficer, >orae obsfrvationi will
he found in tbe Case of Uex v. Home. a. d.
ITTT. poll.
" The Norro* Seas w*ie at tbii time'* (anv^
Kenneti) " infiittd wiifa Pintia of all iIm
,„ L.OIWIC
8^9] STATE TRIALS, ISCoAuial. 16S1 .—m the Caie if Sliip-Moa^. [S30
and if bU officers ander you did their parti, jwi
should walktQ soilrai^t a pntli,that jou would
find it very hard to tread awry : tberefors jou
had need lo heed tl>em narroirly, letc they per-
vert Juslice. I.ook lo the Corruptiuns ol the
SheriA nnd their Deputies : [he partiality of
jurors; the beiring and siding with men of
countenwtee and power in their country. When
you meet nith any such, your proceediogi ought
to be sevtjce and eiemplacy u^mst them, other-
neiEbbour nationi, end the Dutch hegui to
chaUeajte such a riglit of Fishery, as would
have Tobhed the kinp or that Dominion, which
had been alway claimed and exercised by his
royal ancestors. To cnrry on tliis new preten-
sion, ihey encouraged their learned Grotiiu to
assert theic Tree uieoE Shipping, in a Treatise
Ulled Mare Libertim ; ansnered, and sufficiently
retiited, by our excellent antiquary Mr. Selden,
io hii 'Var« C/auium, of which the materiali had
been formerly thrown together at the motion
of king James, and were now put in ordn',
and within a twelve month published at the
command of king Charles. But this contro-
Tcny was not hkely to be determined in
paper: Therefore to sben a just concern for
toe honour and safety of the nation, the king.
0(1 May 5, published two several Proclamations.
In the fint declaring his royal will and plea-
•ure, ' That no mariner or seafaring men,
'■hipwnf|htorship carpenter, wbatsoerer, being
' his m^eiity's subjects, should without the
' King's IJcense, or or the license of the ad-
* miral of England, enter or attempt or go
* about (o enter, into the service of any foreign
' prince or state, or be employed out of this
■ realm in any sea lervice whatsoever, unless it
* were in the king's own service, or of some of
< hit) subjects. And if any at this time be in
■ the service of any foreign prince, that they
' forthwith return under a great penalty.' IniM
other of the same dat« he declares his farther
pleamre ■ concerning the Flags to be employed
* for hb royal navy, as well as fur the ship* of
' bis subjects of South and North Britain ; and
' cuiiceiviiig it meet for the bunuur of the king's
' own Ships in his navy royal, and of such other
' Ships as are, or shall be employed, in the
* kios's immediate service, that the same be by
* iheit Flags discioELiished from Uie ships of
' auy other of hisgubjects; doth therefore pro-
' hibit and forbid, that none of the subjects of
< any of bis nations and kingdoms, (hall from
' beoeefbrth presume to carry the Union Flag
' in the main-top, or other part of any of his
■ ships, that is, St. Geoi^e s Cross and St.
' Andrew's Cross joined together; but that the
' same Union Flag be still reserved as an oma-
' menC proper to the king's owo ships, and ships
' in his immediate service and pay, and none
' otbeiB. And his majesty's faiilier will and
' pleasure is, that all ouier ships of his subjects
* of England or South Britain, bearing nag*,
' shall Tram henceforth carry the red crou,
' commonly called St. George'scrois; andako
' ihtt bU tM other sbijM of the kin|;'s sulyocts
wise Justice shall be overborne, howsoever in
your own persons vou.bear yourselves witli
never so much uprightnesa.
And because the time of Atuie is very sbort,-
and expiretb in a fevr days, it is necessary that
EDU aSiird as much time as may he noto tbosa
usiiieues that arc moat general, and most con-
cern the public ; the Trials of Niti print, and
particular causes, they are in (he number of chose
things that arenut to he Id't undone; buttbos*
" But the great diScuhy was bow to raise
money for fitting out a Navy sufficient to guard
the seat; as necessity seemed now to require
not only against tbe encroacliments of the
Dutch, but agninsi tbe growing iosolence of the
Turkish and Alf^erioe pirates. By degrees a
Project was framed out of ancient Hecords hj
Mr. Attorney General Noy, to impose upon
every sea- port end place of mErcbaudise the
finding sucb a number of ships and meu, in
proportion lo their wealth and trade, or to
compound nith cumwissioneis at such a rate.
The hrst Writ for (his Tsx called Ship-Monev
was dated the SOth of October, hegiiiniog wiifa
the city of I^mdon in this fonn:
Tvc PissT Wbit fok Ship-Monet.
' Caroba JU», ^r. To the Mayor, Commo-
' nalty boiI Ciiizeiis of our Cfiy of London, ■
' and to the Sheriffs of tbe same Cily, and
' good men in tbe said City and in ihc liber-
' ties, and members of the some, greeting ;
' ^cause wo are given to understand that
' certain thieves, pirates and robbers of the
' sea, as well Turks, eneaiies of tbe Christian
' name, as others, being gathered together
' widuidly taking by force, and spoiling the
' ships aud guuds and merchaiidiies, not only
' uf our subjects but b1m> of the subjects of our
' friends in the >ea, which hath been accus-
' tomed aiicientiy to be defended by the Gng-
' lish nation ; and tbe same at their pleasure
' have carried away, delivering the inen in the
' same to miserable captivity. And fotssmuch
' as we see them daily preparing alt mquner of
' shipping further to molest our Merchants, and
' to grieve the kingdom, unless Remedy be not
' sooner applied, and their endeavours he not
' more manly met withal ; also the dangen
' considered, whicii on every side in these
' Limes of war do hang over our beads, that it
' behoveth us and our subjecti, to hasten the
' defence of the sea and kingdom with all ez-
' pedition or speed that we can : We willing,
' oy tbe help of God, chiefly to provide for
* the defence of the kingdom, safeguard of the
' sea, security of our subjects, safe conduct of
' Ships and Metcbiuidiies to our kingdom of ,
' En^and coming, and from the same kingdun
* to foreign parts passing: Forasmuch as we
' and our pri^enitors kings of England, have
' been always heretoibre masters iiT the afnre-
' said sea, and it vrould be very irksome unin
SSI] STATE TRIAU, UChakluI. \0i7.— Tie King againiiJolMHioitpdat.aq. [833
SU1 iiace auipiecl these forfeiturca to the pol^
defence.
In tbe nntJJlace, I do require you, that jon
maLe a strict luqairj after DepopnintiDns mk)
Indogursi; a crime of a erpug nMore, that
bnrretbGod of his bcnour/and ute king of hit
tiling that concern tbe geoenil aad public good,
you are to account them as tbe weighrier mat-
ters of the law; and therefore you ore to lak«
tbem into yoor prime and chief care aud cogi-
tatioQ. Now among tliose, I shaU commend
nnlo ;oii in the tint place. The presenting and
convicting of Hecusants; for as it coocemeth
lUligion, so it hathrelatioQ to hiB majeu^sPro-
filB, which are two great motived, to which 70D
may add a third, becaute the king hath manj
m, if that princelj honour in nur tintes should
be lojt, or in anj thing dimintibad. And
altliough that charge of defence, ivhich con-
cemeth all men, ought tu be supponed by all,
as by the lows and customs uf the kingdom of
England haih been accustomed to be done :
notwitlistntiding, we considering, that yoo.
constituted in the tea coasis, to whom by see
as well great dangeis are imminent, aud who
by the same du get more plentiful gaint, for
the defence of the sea, aud coneerration of
our princely honour in that behalf, aecordiDg
to the duty of your Bllegiaoce against tuch
attempts, are cliirfly bound to set to your
ItelpinK hand : we commnnd, firmly emoining
you ihe aforesaid mayor, commomltj and
cici/ens, and sheriffs of the said cit]', and tbe
good men in the laid city and in the liherliei,
and members of the came, in the isith and
allegiance wherein ye ore bound unto u), and
as yc <ia love us and our honour, and under
the (brfeiiure of all which ye can forfeit
us, that ye cuuje to be prepnred and brought
10 the poet of Portsmouth, before the first day
of March now next ensuing, one ship of war
of the bunhen of 900 tons, with 3J0 men at
the least, as well mastfn as very able arid ei-'
pert skiliii] roorinrn ; one other ship of war
of tlie borthm of 800 tons, with 360 men at
the least, as well tkilful maslers as very able
and expert mariners ; fuuro<her ships of war,
every of tbem of tlie. burthen pf 500 tons,
and every of them with 300 men at the least,
as weII expert maitcrs as very able and skilful
msrioers ; and one other ship of war of the
burthen of 300 tnnj, with 150 men, as well
expert master? as very able and skilful mari-
ners. And also every of tbe said ibips with
Ordnance, as well creater as leaser, gun-pow-
der and spears and wi^npona, and other ne-
cessary arms sufficient for war, and with
double tackling and whh victuals, until the
said 1st of March competent for so tnaay
men, nnd trum (hat time for Q6 weeks atyour
charges, as wdl in viciaals as men's wages,
and other things necessary for war, during
that time, upoq defence of ihe sea in our ser-
vice In command of tbe admiral o( tbe sea,
to whom we iball commit the cnstody of the
sea, before the aforesaid Ist day of March,
and OS he on our behalf shall commoDd them
to cDotiniie, so that tbey may be there the
same day at tba farthest, to go fhnn thence
with our ships, and the ships of other faithful
tu^ects, for tbe safeguard of the sea, and
dewact of jroa aad jcnin^ mhI MpoUc and
sul^ects: Churches and houtes go down tc^e*
thcr. His majesty knoweth and taketh nniice,
that according to tonoer directions given yon in
Uiis place, you have given it in charge to tbe
' vanquishing of wbomsoeTer butying tbem-
' selves to molfM or trouble upon the sea ow
' meR:haDts, uid other subjects and Eiitbfid
' people coming into our dominions tor caoae
' of merchandiie, or from thence retomiug to
' their own coontrias. Also we have assigned
' you the aforesaid mayor and aldermen, m tha
' city aforesaid, or any thirteen or more of yon,
' wilhio thirty days after tbe receipt of ihic
' writ, to anen all men in the said city, and in
' the libertiM^ and members of the same, and
'the landholders in the same, not tiaviog a
' ship, or ai\y part of the aforesaid ships, nor
< serving in the same, to oontribute to the ci-
' pence, about llie necosary provision of the
' prMiisses, and to assess and lay apon the
■ aforesaid city, with the liberties and memben
' thereof, viz. upon every of them according ta
■ their esute and substances, and the portion
' assessed upon theui, and to nominate and ap-
< point collectors in this behalf. Also we hava
■ assigned you the afuresaid mayor, -aad also
< ihe iherim of the city aforesaid, to levy ibe
■ portions Ki as aforesaid, aasetsad apon the
' aforesaid meD and landholders, and every of
* them in the aforesaid city, wi[h ibe hbenies
< and mnubers of tbe same, by distress and
■ oilier due means, and to commit to prison all
■ those whom you shall find rebellious, and con-
' trary in the premises, there to remain until
' we shall give further ordsr for their delivery.
' AiiH moreover we command you, that about
' tbe premisses ye diligentlr attend, and do and
' execute those things witb effect, npon peril
■ that shall liiU thereon, but we will not ihot
' under colour of our aforesaid command, mora
■ should be levied of Ihe said men, than shall
' suffice for the necessary eipences of the pre-
• misses; or that any who have levied moaej
' for oontributioD', to raise thealbresaid charges^
' should by him detain the same, or any put
' thereof, or sliould presume by ai»y uanaer of
■ colour to appropriate the sama to other aM*.
' Willing, that if wora than nay ba snffideiit
' shall be collected, th« same may be paid out
' among the contrifcuters, for the rale of tba
' part to tbem baloDgihg. Witness, myself at
' Westminster tbe 90th day of October, in the
' tenth year of our reign,'
"This Writ vras read in a omnmon goimHI
held at Guildhall Dec. 8, where tbe mailer gava
a general disgust, nnd brought out this Heaaltf-
tioB- upua iL ' Tbis Court, after doe and seri-
< ons consideration token of the piemisseB, «ad<
< e^vn^tlMU hy tbeiraaoient libertia^ chanarA,
' and acta of pariiaBcat, tk^ <K^ to faa fiecd
srand Inqnesu to inquire of these things, bot to
little effect: atiil without dtmlic tli« freeholders
e effect: aiiil without doulic tli« freeholders
a{ Engiaaii dn Uau sod detesl them . Uepopu-
ialioD isiiii opj>re£$ioo of an fiigb nature, and
icorrmoiUj doiu; bj Ihe jiteuteU pers^.ua iliiit
leep |)ie Jurors uader ana in awe ; nDd tliat h
}he cuuse tliere aie do uore presented and
tiruui(j>t in questiotii but bowerrr your'Ch^rge
and i>u:;uirir,loucbiDg tills point, huUi not lakAi
eS^t^oniiy bis raajeay's care aiid jour pains;
' nod discharged of [ho«e things which bf the
* snid Writ are required by them xo be done,
* doib order and Bgree, Tliat the dcaugbt of n
' Petition touching the said business, tijis day
.* X^ to this Court, shall be engrossed,-, and
■' with all dulifulTe^fCt (or and on, this city's
.' twboir, humbly pL-eseiited to the king's molt
' " "il majesty.'
' To tbe kind's most excellent mnjeMy; The
' hnroble l^etition of jour bithfiil subjects,
' tlie mayor aod commonalty, and cithent of
' your city of London, most humbly shewing ;
'■Hiatnliere your majesty by Writ bearing
' teste 30 Oct. lost, couimanded your peti-
* tieners, at their chnrge to provide 7 ships of
' war furnished with men, victual, and ait trar-
■' like provisions, to be at Portsmouth by the
* first of Mnrcli ndt, end' to continue froin
' tJience by the apace of 26 weeks in your Aa-
' jtsty's service, upon the defence of the seas,
* and other causes in the snid writ contained : —
' Your petitioners do in all submissite humble-
* ness, and with acknowledgment of your sac--pd
< majesiy's many f%T0uri unto your said cily,
' inform your in^esty that they conceive, that
* by ancient priiileges, grants, and acts of par-
' liaroent^which they are ready hniublyto shew
< ronh)tbey areexeniptandnretobe freed from
' tluit charge. And do most 'humbly pray, That
' your majesty nlll he graciously pleased, That
' the petitionert, with your princely grace and
' favour, may' enjoy the snid priviteoes and
* eieiaptions, anrl be freed from providing of
' the snid ships and piovisiuns. — Arrd they sliall
"ThisPetitioDseemedio have no other effect,
j>at only to express a dissent, when there mutt
fi^low a compliance. And the example of
submission, howerer eiiocted from the city of
Loojdon, would have it* sure and certain in-
fluence upan all inferior places. The legal
right of this aid was not yet disputed in any
court of justice, but it created A|te"eral oSence
and edium. Ilic nobility trnd gentry liad rea-
fon to be jealous of any nietltnds ui'rauing Mo-
ney out of parliament ; The merchants and
.traders bad tbe Oriemnce of thinkinj; tbe whole
burden cast upon them : The Clergy could not
at first obtain an Exenptiou from their cou-
nderable shore in it; and tbeCountry Formers
tbooghl it little less than seiung their com and
cattei (o be sent an Shif baud. Xbe munnurs
yet his majeetj nilleth; that you do not cea*^,
but enquire on still i for it is Irit resolution,
against all opposition, to make all men see be
' ' a care of this overspr<ad.ng evd, and of
means of' his- peojriu J'aving churclres :ind
s deoiuliihcd, and his people eaten up like
bread, to tntisly the greedy, dtsircs of u lew,
lo do waste ns profusely, as they gatjKi^ to^e-
?r unconscionably, and hriti^ unto Ihejr pos-
terity that woe which is pronounced agninrit
were indeed so uuiiersal, and. so a'rtiticially im-
proved by tbe enemies of tiie court, thru tliey
looked upon tire death of tlie proj'ctor lo be n
Judgment sent upon hii head. SJr. Attornrir
General Noy d^)atted this lile August Q."
Lord CUreodon spciikiug of the innovations
made about this lime In tbe prucccdiugs of tha
Court of .Star-Ci>nmber, sayj, " TJicse errors
(for errors they were in view, and errors thej
are proved by tbe success) are iiot to be iui-
poIM to the court, but lo the spirit, and over-
activity of the lawyers themselves ; uho should
more carefrrlly hiive presen'td their profession,
and iisf rofesson, from beini; prot'aned by thoso
seivices, wliicli have rendered both so olmoxi-
ous to reproar;h. There were two persons of
iliEit prolession, and of that time, lij wbo^e
several, and distinct conrititutions (the one
knowing nothing of, nor curine for the court;
(be other knowing, or caring for nothing else)
those mischief were introduced, Mr. Noy, the
Attorney General, and sir John finch, lirsr,
lord chief justice of the common plras, ond-
then lord keeper of the peat seal or Enghnd.
Mr. Noy upon the great fame of his ability and
learning (and lie whs very nble and learned)
was by great industry and importunity fron>
court, persuaded bi accept tiiat place, for which
alt otirer men laboured (hein^ the best for pro-
fit, that profeuion is capable of) and m he suf-
fered himself to be made tl>e king's Attorney
General. The court arade no impression upon
his manners, upon his lulnri it-did : and thouuh
he wore about him an affected morosity, which
made him unapt to flatter other men ; yeteveit
that moronity and pride tendt^red him the most
liable to be grossly flattered himself tliat can bo
imagioed. And by this means tlie great per-
sons. wLo ilcered the public afiairs, ly admir-
ing his parts and eitolflilg his j udj^metit as be-
hind his back,wrou^t upair.bim by degrees
for the eminency of tbe service, (e be an instrb-
meat in all their design; thmktncthntbe could
not give a clearer toMimony, that bis knowledge
in the law. was greritctihan'atl oilier mens, than
by making that law which all other men be-
lieved not In be so. So he moulded,- framed
and puTsoed the odious and crying project of
Sonp; and with his own hand drew and pre-
pared the Writ for Ship-Money, bolb which
will be ilie lasting monuments ol his fame. In
a word, he wa.i an unanswerable instance how
necessary a good educatioir and knowledge of
men ii to make a wise man, at leaiit a roan fit
for business."
On thedcetbof Mr.Noj, sir Jotiii,Baiiki
i»
Gooo^k
S35] STATE TRIALS, ISChablesI. lSi7.—7h: KmgagainnJiJinHan^>ile>t,etq. [636
tb« p«i>p1e in an Alehouae ; but if six, ei|>bt,
those tliRt ' In; home to home, and field to
' lield,' to dwell alone in the niidat of the earth.
The next iliiog that I shall mention unto yoa,
is, the rectifying and rrfonning of Ale-bouses
nnd Tippling- houses, anct tliose I account one
of (he grenteal [icsis of ttie kingdoni. Fint,
therefore, lei none be enabled to act up or con-
tinue without licpiice : there are a kind of peo-
ple thaf do take upon them licences, recojini-
zances, or laws, or what you will,and who liaxe
been a great deal the worse, became they see a
great inuititude tolerated tbnt bive no hcence ;
mid theiefnre 1 pive it in charge, to take a
ciiurse that oone be permiited unless they be
licensed ; And for the licensed Ale-houses, kt
tbcm be hut a few, and in fit places; if they be
in privatp corners and ill places, they become
the dtns of thieves, they are iha public stages
of drunkenness and disorder. In market towns,
or in E;rear plncrs or roads, where travellers
come, Vticy are necessary.
^eit unto this, let those chat be licensed he
lield slnctly to it, accordinj; to law. It Jiath
lieen observed, and lery truly, thai in the Ta-
verns, Inns, and Ale-houses in England, by ihe
felshood of their measure, and their nnjusc
pricts. they have dmnn more money from tlie
guest, than out of the Excise of Ale and Beer
are drawn out in Holland. A strange thing,
that people lor a public work, for qdv thiug
that is food, should be loth to part with any
thinf;, and yec.nithoprn eyes, to see themselves
deceii'ed by such base and lewd people.
Next unto this, let cnre be taken in the
choice of Alehouse-keepers, that it be not ap-
pointed CO be the livelihiiod of a great tamily :
one or two is enough to draw drink, and serve
dated Sept. 27, lOCar. Aiidslr Robert
-beinj; without reason pven removed from ihe
honour of lunl chief justice of the cooimon
oleBs, sir John Finch was advanced to that
nonour. Great were the discourses what the
occasion should he of that sudden advancement.
fiutfour dnysafier the Writ for Shlp-Money
coming forth, it was. conceived by common drs-
■, that he nas to he instrumental ~
e that h
His c
II this it
Tendon.
Noy wanted, but nothing that the othi
Having led a free life in a restrained fortune,
»nd having ±et up upon the stock of a good wit,
and natural parts, without the superstructure
of much knowledge in the profession by which
be WHS to ftrow; he was willing to us€ those
weapons in which be had most skill, and so
(being not unseen in the aOcctinns of the court,
hut nut having reputation enough to guide or
reform thein)het<>ok upShJp-Muney whereMr.
Niij letl it ; and being a Judge carried it up to
that pinnacle, frotti nlience he almost broke his
own neck ; having in his journey thither, had
(ou much influence on his brethreu, to induce
tbcin to concur iuajudgraeotth^ had all cause
itained by Ale-
house-keeping, it cannot chuse hut be an ex-
ceeding disorder, and the family by ibis loeana
is unfit for any other good work or employment.
1 hare not skUl enough to understand all tbe
incuDveniencies that come from this one ill
fountain, and my memory will not coutaii) what
T have so tnwiy times oluferved of tliem myself;
but yiiur Inrdsliips have a knowledge and es-
perience of them, thjerefore I will leave tbem
unto you : only this, Chat because in many
places they swarm by default of the Juilit^s of
the Peace, that set up too many, and there are
none, except yourselvei at the Assizes, all tbe
year long can meet with this evil, but tbe Jus-
tices of the Peace. And if the Justices of
Peace will not obey your Charge herein, cer--
tify their ilefiiult and names, and I assure yqa
they shall be discharged. I once did dijchai^e
two Justices fur setting up one Alehouse, and
shall be glad to do_tbe like again upon the same
occasion.
In the next place, I will commend unto yon
the Piwisbmeni of Vagabonds and wanderers ;
to beguile the Alehouses of such unruly guests ;
it would make some way uf amendment to
those Alehouses: and it cannot be dcni'd, but
the law hath appointed Lands enough to do
ibis work; theConstable, Hcadboroui;h,Tyth-
ing-iaen, and tbe rest of the interior 0£cen,
and the Watchmen, who may do all with b
particular warrant from the Jiiiitices of Peaf;e ;
and the Justices of tlie t'eace nre bound to call
them 10 an account, and to punish them for
their neglect. If this wtre done, and other
officers were chosen as ihey ought to be, not
people of little wealth, and m little iind»-
stunding, hut that they were elected out of
the better sort of Yeomanry, and tbe watches
kept hy able men, 1 am sure that these loose
people tluit wander up and down will quickly
le gone: therefore you may do well to let it
he known in the country, that (he Lotdi of
Left and those that have the elections of con-
stables and officers, they are> by itie law an-
swerable for their choice. There have been
Precedents, that wliere an insufficient coroner
hath been chosen by a county, the whole
['ounty bath been answerable to the king for
the coroner's fault. Xiid if the Lords of Lcet,
and their Homagers, and those that make
choice of the' Constables and Officers, were
sometimes awakened by soon seizing of tbetr
Leets, or Fine, or Qfio nmrrajtlo, I make no
doubt, but the country would he better served
many years ufiir, fur some such service dona ;
therefore I coiild wish that iliis were made
known unto the country, that the lords, and
those that choose them, werr aninerable for
their defaults.
Now for bringing loose people in order, the
Housa of Correction hath need to be looked
unto, and he put in readiness, that those that
are idle may not want work. ' Dacere vuleates,
' trabere oulentes.' And for the Houses of
Correctioii, as il b in t
tv37] STATE TRIALS, 13 Crailes 1. I03J.— tn the Oae of Ship-Mouty. [&3S
b« exactly looked unto ; nnd thuje stibjects
who«e minds are most fixed upon tlie lionour o{
their kiRg and couotry, will with no patience
^ndun- tu think of it, tlial tliii dominion of the
were placed near t he Jail ; iMt
not idle pcrsiiits only, but tlie prisoners of the
Jui[ aUo niij|ht be ninde to work, and eat the
labour of their owu hnndi : tills, as it Lath bveu
Ibruicrty, so il i-j now cuiumendiid by Ills ma-
jesty to see it edected su «rau ns may be.
The binding; out of Apprentices is il ihiug
fit to be pressed ihroughnut all your circuit.
Opposition liuib been made against it by some,
tbuugb without any ground or law: souicctmes
tlw pare»ti are noi willing lo lenvc llieir chil-
dren, thougli ibey have not iiteot to teed them
at home ; s'tmetimfs the parisliioners are not
willing to tive ilieoi clotlies, and tbose that
bind ihetn nre n^ligeal ; and all these muse be
over-ruled, and made smart for their opposition
aod neglect.
In a word, jou are to call upon all lo wlioio
it belongetb, but e«peciBlly to tlie Justices of
the Peace, to see his majesty's printed Order
be put in execution. You are to Justify your-
selves, whatjuiticesortlie peace ore diligent in
it, and who ueglfct, and so to certify to the
I^irds of the Council.
I lure but one thing more to gii'e you in
Charge, and it is a tiling of great weiglit and
importance; it concemeth the honour uf his
maje&ty and the kingdom, and [he safety of
both. Christendam is fuil of war, and there is
nothing but nimours of war : what hath been
dune of late years abroad by lire and sword, it
were a p1ty and grief to tliink of; yet wc have
by the gouduej of God, and his majesty's pro-
vident care, all this while enjoyed a most happy
peace and plenty. As it is a good precept ill
Divinity, sn it holdetli in Policy too ; ' Nunc
' lua res ugiiur,jam proximus ardet;' wbicli if
•re observe, to defend ouraelves, it would be a
warning to all nations, and wu should be the
more asjured to enjoy our peace, if tlie w:ir
•ibroad do make us stand upon our guard at
home. Therefiire no questinn it hath ever bepn
accounted the jjreiitest wisdom for a nation to
arm, tl tat they may not be enforced to tight;
which is belter than not to arm, and to be sure
to fight. Thereliire his tnajcMy in these doubt-
ful times, hath not only cominanded, that all
the Land-Forces of the kingdom sliould be set
in order and readiness, but in set to Sea a
royal Fleet at his na'iesty's Rreat charge, but
with the assistance of the Maritime places of
this kingdom.
with the preparations and ordering of them, is
proper'lo the king; and dutilul obedience in
■uch things does best become the subject.
And yet his miijesty haih vuuchsafed, even by
Ills writ, to derlare eaough to satisfy all well-
minded men, and to express tiie clearness of
bis princely heart, in aiming at the general
good of bis kingdom.
The Dominion of the Sea, as it is an nntient
and undoubted Riiiht of ilie crown of Engtand,
so it is the best security of the land ; for it is
inipr^nublc so long as the sea is well guardfd :
tberelore, out of all question, it is a thing of
absolute nccewty, that tbe guarding of the k^
> ^reat i
I be
either lost or diminished. Desides, for safety
sake, tike dominion of the sea is tq be kept, and
the seas guarded. The Wooden Walls are the
best walls of this kin^om ; and if the riches
and wealth of the kingdom be teepecied Ibr
that cauK, .the Dominion of the Sea ought to
be respected : for else, what would become of
our wool, lead, and the like, the prices whereof
would fall to nothing if others should be ranster»
of the seas t I'hete is a Casf in the Book of
Assiic, fol. 43, nhich putteih ine in mind of
certain men that went down into ttie-couutry,
and carried a report, that no wool should pas*
over the sea that year ; upon this wool f<;ll ti)
so low prices, that tlie men ihut carried tlie re-
port were questioned and lined. And now if a
report alone, and that a fnUt one too, wrought
such an effect lipoii the wools in England, think
what would be wrought by a real lo«* of the do-
miniouof the sea in all our commudilles, if our
trade should lie at the command of other
princes anil stales. Therefore, as his majesty,
out of his great wisdom, hath found itexpedient
to set to sea ihat Fleet that is now upon the
sea ; so his maiesly beiii^ engn^^cd both in his
honour, and the honour of the kin^^dum, be
findelh it to be of absolute necessity, to
strengthen this withagrealETStrcngih and more ■
shippinii the next year. Tlierefurr, upon ad-
vice with his council, he halh resolved, that he
wit] f.>rLhwith send forth new Writs for (he pre-
parntiiin of a greater Fleet the next year, und
that n'lt only to the maritime towns, but to all
the kingdom besides : Fur since tliat all the
kinjidom isinterested both iu tbe honour, s.-ilety
and profit, it Js just and reasonable that they
should ell put to their helping hands.
Now that which bis majesty requtrelh from
vou, and doth command, is, Tbat in your
Charges at the Assizes, and in all places i-lse,
where opportunity is offered, you take no occa-
sion lo let tbe people know how careful and
zealous his majesty is to preserve his honour,
and the honour uf this kingdom, and the Domi-
nion of (lie Sen ; and lo secure both sea and
land by a powerful fleet, that foreign nnlions
may see, that En^and is both ready and able
to keep itself, and all its rights. And you' are
tu let them know how just it is, tbst hij majes-
ty should require this for tlie commun defence;
and with what alacrity and cheerfulness ihey
ought, and are bound induty,to contribute unio
it ; tliat foreign nntlons may observe the
pnwer and rendiuess of this kingdi>m, wljich
will make tbero slow to contend with us either
by sea or land, and ihat oill be (he best way to
confirm unto us a firm and sure peac-:. — This ii
tbe tubiiance of all ihnt whlih I reeeired in
cuiumandmeiit from his majesij ; there are
many things else ihat concern the public, but
your judgments are well icned in them.
Tliete are the particulars I had command lo
639] STATE TRIALS, 13 Charles I. 1637.
The Steeck of Tl)'>mas Lord Coventry, Lord
Keepcrof the Great Seal of EngUiiid, lo ali
the Judaea of Af,-,ue of'EuclBiia, bj com.
niimd froin the king, io the Stai^Cliniuber,
Feb. 14, 1(336.
Together with'tlie King's Letter and Caw.
touching Sliip-Mauey, Hnil the Judgei Opi-
nioiui Uiereupon.
My lotrii the Judges ; the Term beinn now
Bl an ciid, nnd the Aa-wes nt kind, his majesty
bath cninnr.indpd. That according to the cus-
tom in fonner times, so iinw in this place you
should receive some Direcuons for tlie execa-
tion of Juilice in allpans of the Linjudoin
whereto you rc-ort. ITiis, as it may justly be,
is m great comfort to his mnjcsty's sul<|ecis, to
iee his mnjestj's care herein ; which as it is a
testimony of iheir own hajipinesB, in receiiing
. justice from the king himself, the Fountain of
Justice, so it nay as justly add strejtgtli and
encour;^einent to you when you go your cir-
cuUi, not only to be armed wilh jour own nu-
thority by commissiou, but with your piince's
things of
.e praces
In the doing of justice, you will 6ud thi
several natures and dt^ree; " -
before yiiu, Coiiiniunicaiivi .
sway, OS in that which concerns meum et tuam
In other, Distt^butive Justice, as in prirniiuj
et panam ; some ci>ncerii one and it few ; otlieri
cuncern (he multitude; others concern the
^inS and all the king's peoplu. In some plfas
things are bruuglit before you that are ml no-
mmcntum ditliisor'thnt particular town; some
ad nocuuirutum loliui rei:wi. Some things are
drought hefiire you that are contra pacem rti^ii,
And otiiers contra roronam et dignitaiem rc^is ;
nnd in this variety of business, as there are
many of a leaser and lower degree, yet not tn
be omitted, so you ha>e ' Gniriora Let;is,'
which you .onjht to pilch your mart ; ' hi
' oporet fieri, ilia non oinitti.*
In tbut Justice which you are to do betn een
parly arid party, his majesty^ doth renuiie yoi
ns iuall hisCouits here, si> in your Circuits t
administer impartial justice, aod repress veii
tious'Bnd wrangling suits, not worthy the digni
Vj of your own persons, and t)io court vhei
you sit ; fur those actions, ns they empty ill
spleen on tlic one side, so they never fjil t
empty the purse on both sides.
■ But heetdes tlie doing of justice belwee
man and man, iliere is much more expected
from yoiir lordships ; for the public business of
tbe couuin is of niucb more imporlance than
tlie trial of a :!yiii Friui, and fitting you should
esteem them so : and therefnre it is his mnjes-
ty'a Bommnnd, That those services which con
cem himself nod the public, may be timel;
tliought of, and nut pasted off to the end ofthi
Now before all things, the Advancement o
KeiigioD and Piety towards GoA, the peace of
. — 7^ King t^atJut John Hampdai, e»g. [840
the CJiurch, and the execution of those Lawk
that tend to those ends, ought to have (be first
place. As oft as 1 have had occauon to tpeak
to you here, I have seldom spared to give .yon
a Chnrje of the Laws ogninst Itccusnnis ; and
Imust reiterate it now : lor if you coniict (brut
not in the country, (here is hkdy to be little
' Btiiin, or profit to his mnjestj- ; and wlio- ■
they be-lhut will not be fuuod in the
Chnrch, it hehovetli you that you take order
they, he found in the Exchei]ucr.
Ill the next place, that you proceed roundly
against capital and felonious oSendeta, eip»>
cially Itobbei'son the Highways,H ho now marcti
in troops after a liigli hand. As a good Juike
ought in court (o shew severity to those in the
jail, niso the ablest and activest min In the
county ought to do their utmost endeavours fur
(lie apprehending of (hose offenders as nrC
abroad ; that «hen you are there or here in tl.fe
tenn, the serviiie may proceed in a poijd way,
and you he made a terror to innlelacluTi, as
some of your pi-edece^ors haie been; firif
yonr care be not great, malLfaciors^wiH
nhouiid; therefore you mult shew a severe and
constanc ivav of justice wlicn tlw; are founil,
and it will Coon abate their pride, wherewith
they now bear up themselves; and fit i( is wilh
fiir if (here be a remissness in any one circuit,
it leaveth a way lo malefactors to ovcrrlirow all
reformation, and justice is thereby discouraged.
In the next place, care must be had of thosfe
laws'nhicli concern Luxury nnd Idleness, (he
suppression and punishing of Vagabond:, the
ordering snd employing of Houses of Correc*
(iun, the suppressing of Alc-lk>uses and Tip-
pling-Iwu-^cs, and binding out of Apprentices.
If these w( re well and constantly observed, they
wouid save many ablo bodies (hat die niiseta-
bly nt the gallons,' and cut offa maltitude 6f
cnprmities that pester the commonwealth, and
lessen the number of ih lev es and robbers; and
tlicrefore your lordships should do well to hav%
a special cnre of the execution of those laws.
And (his giveth me occasion to put ynu in niinH
iif itio»e printed Orders published by bis ma-
jesty in tnc year 1630, wherein nt lirsi tbeiit
wasadirectiong-venforan Account to be made
by ihc sheriff and justices of (be peace : (hb
same was orderlv kept in divers ptiices, in
others not so well. It was afterwards advbed
hv yourselves, that the way of Account sliould
be clinn^d, nod that you should receive it At
the Assiiei, and present it to the CoundU
Bonrd 1 yet it is my part to tell you, that H
hath not so appeared by the account that b
come to the Council-Table, and it ii expected
a belter be given by you (henextTetm.
Now in respect the public service dependeilt
much upon the Justices of the peace in the
cnonty, it will be necessary that you cast your
eye upon them, that they give due attendance
nt the Assizes ; it is their duty to do it, and
yours to inforce it npon them. And Assite
Insteth but a few days, but the Instructions (hat
tbey may remvc from you in that short time,
841] STATETRIAI5, 13 ChahiesI. WSl,—iatheCtixofSiip-3T(mty. [848
Seas, oar tnnst secure and safe defrncr, brilei '
either than ciitlcs or forts; uhicb if it be com-
manded b; oilieni, it lajrs us opeD to much
peril Middungcr.
■ Secondlj, The whole tingdom is concerned
in potnt ol' honour : for it is one of the moBC
■Dcient and himotirnble rigliCs of the cronn of
England, even the Dominiuii of the Sea. An4
may be ofgreat use for the connty for tfie whttle
year; Alto thai you examine whether they
give due attendance nt the (junner-SrHtoiis.
Although there is an express article in their
Oath tliat they should give ii ; J hear many ne-
glect it; Tliemture ii iuinjiing very lilting, and
■ ejl worthy your labour, that at tlie beginning
of every Assiie,joti trust uot tolhe clerk of
the peace his Infarmatinn, but that yonnclves
do cost an eye upon his Boob, and coniinaiid
' bim tn return the iinmes of cuch Justices at
peace as you find by hii Book ivere absent at
the Qnariec Sessini)*, Fit it nill be thnt jou
let tliem knu'n, that to prefer a riding, or bowl-
ing, or hunting-match, befure their attend-
ance at Qnartcr-Selsiiins, is little less than per-
jury 1 and if your admnniiion will not teri-e the'
turn, ft remedy shall be taken. In the third
place, it is necesMry fur you to inioire liow
(hey attend the monthly meetings, or other
times of public senice ; fur thb I ara sure of,
Uiey are all tviiliin one commission, and hnie
the snme oath, iiod llii! same alti'nriunce is im-
posed upon all ; end why the greatest iinmber
exem|)t themselTC-', and leave the public ser-
vice ilpnn a few, I knon not ; but if I iniij
kuow the paitimhr men (of whirh I hope J
ahall hencef'Tward by your lordships) I sliall
rid ihein out ofComuissiou, and put oCliers in
My Lords, I have but one particular more,
and that is of great importance ; whereof
by special direction and command from his
Inaicstj, I am to speak imto yon at this time.
All of you ore the ditncsscs of his majesty's
proceedings, though the rnndour and clearness
of lih own heart exceedeth vour tcstinioiiy, and
jour testimony is not only it to be decUired in
thi) place, but in all the places of tliis realm.
His majesty bnth now the th^d time sei^t fonli
Writs* to ra(|uirethe Aid of his subjects for the
guarding of thedominion of the Sea, and safety of
the kingdom. This his mnje°ty did upon great
deliber'atioji and advice, and upon important
»nd wei^ty reasons. In the first year when the
Writs were directed to the ports and mariciiae
E laces, they I'eceived little or no opposition ;
nt inthesecund year, when they went gene-
tally throoghout Ihe kingdom, thouzh by some
well obeyed) hove been refused by some, not
hnly in some Inbnd counties, but to some of
the Maiitime phces; and actions hsvc beon
brouiiht against some that have been imploycd
in ttx eiiecutioa or these writs. I suppose that
no "ttan will expect that Areanu Kegni, the pri-
vate reasons of n prince, should either upou tbis
orotherDccasionsbcmailc public; but so many
re fit to be opened, were formerly
idbyn ■ ■" ■ . - .
of this
Ttie First was, Thnt the whole kingdi
coiiceroed in point of safety ; admitting there
'taere no other counsel or attempt n^inst us,
'fitit only 10 interrupt us in the Dominion of the
"See the particular Taxation in Sttnib. Col.
should never perbh; and certainly the
whole bingdfim is concerned in point of trade
and pruGt ; for the traffic does not only enrich
the maritime parts, but the inland towns, and
if tradhig fail, the inland places will find it in
the fiill of the prices of wool, lead, and other
staple nomraodities. This experience sbeweth
daily, when upon eiery stop of the vent of
cloth, there come such oi.tcries by ihe wearer,
the fiiller, the spanner, and wool-growers ihcrn*
selves; and the aothorilyof the htw shfwelh
the same: 43, in the liuok of Miite, which
your lordships know be'tter than [, it apptars
'' " " ' men went into the country, and
— .._. .. fome, liiui for that vear no wool
should be trajinported beyond tlie seas'; pre-
illy npon thrsthe price of wool ttii, and those
o wi re called in question, and were adjudge
ed in a fine for it. Now if a rumour did so
abate the trade of the heart of the king-
dom, what woiiki the luss of tlic dominion of
the sea di>, vvh'ch etpnscth us, aud nil our
trade, to the nil-. ly of nnr :icighhours? There-
fore since ti.e wtiolo kingdom is coiitemcd in
pniiit of honour, salety. and proiit, ivlint reason
is there bui Ihnl all should cuntiibiitc to ihe
maintennncB of it? This, or to the iike effect,
I did formerly declare to you the juili;es by bis
majesty's conimand ; und his maji'-ly received
satisfaclton, in that you miide a full declara-
tion thereof in your circdits: and this I may '
say, for (he most pan, the subjects have shcwcct
themselves ranat dutiful and obedient in tliii
senice of his majesty : and this yenr the sum
imposed upon the county of York heitig 13,000'.
i» brottght in already by the sheriff, and lo ii
most part of Lancashire, and other shires ; hut
when his ma)estjheardof somerctusals, though
he had cause in he sensible of it, yet be w'a>
fiir from being transported wiib passion, but
thought fiood to resort to tbe Advice of you hit
Judges, who are sworn to girc him faitliiul and
ITTie counsel in that which peicaineih to the
law; and this his majesty, as well fnr thedirec-
tion of his own course, as fnr the satisfaction of
his subjects, required you to deliver your Opi-
nions herein,' to which yr>u returned an Answer
under yourhands. And because the command
which, you received from the king, is expressed
ill a pnncelv Letter under his own signature, 1
shall not cake aftin me to repeat it, you shall
bear it read.
Which being delivered by my Lord-Keeper
to one of the Oerks in Coort, was read in
"/iiW wrba:
Tax Kikc'sLetteh totue JurcES.
" C. R. Trusty Mid well-beloved, we grew
64S] STATE TRIALS, 13Chablm1. 1631.— The King aguiiutJoltnHan^»iai,esg,[m
jo\i well, Takiiigintoourprincelyconiidera-
lion, tliat ihe Iiouour aiid salMr ol' tliia uui
realiii of Kngland, tlie preEtcnaiioii wliereuf
moie iiearij concerned tli»ii in furmFr times,
03 well bi^ divers ciuiisels and atteinpti to
take from us tlie Domiuion of ttie Sea, of
which we are mjIc lotd and ri)^lilful owner;
tita loM whereof ivoLilJ be uf^isite-t daiiirer
and peril to iliii kingdom, and other our
daminioiis: We, for avoid iug lhei« aiid (he
like dangers, well neigbini; with oijrt«lvek,
that wheie tbt good and safet; of the kiuedum
in gcDerul is cuiicernid, aiid the wliole king-
dodi in danger, therethe Charge anil Defence
□ugh I to be boroe by all tlie realm in general;
did, for preveniion of so public a mischief,
resolve witli outselves to have a Rnjal Nurj
provided, tliat might be of fiirce and power,
with Almigblj God's blessinj; and Rgii»tance,
to protect and dtfcnd this our realm and our
suQecCs thereih, from all such perils and dan-
gers; and for ihitt purpose we issued f>rth
Writs under our great stpal of England, and
directed tn all our sliotilTs nf all our several
counties of Enjiland and Wales, coiumanding'
iherebj all our said aubjects, in every citj',
town and village, to provide such j> imniher of
Sbipi, nell'furnisheil, as niii;ht serve for this
our rnjal purpose; and uhicb might be done
with tlie greatest equality ihat could be.
In perfortnance whereof, ihouuh generaliy
throughout all the countlen of this our realm,
we have found in our subjects great cl>enrful-
ness at]d alacrity, which we graciously intcr-
prtt as a testimony, as well of their dutiful
nOections unio us, and 1o our service, as the
respect ihcy htive [i> the public, which vrell
becometh every good subject; nevertheless
findine; that some tew, hiipl; out of ignorance
what the laws and customs of tbiii our realm
are, or out of a desire to be ea^d and freed
iii their partitulara, {Iiow general soever the
Charge ought to be) liave not yet paid and
contributed the several Rates uiiif Assessments
that were set upnn them, and foresceiae, in
our princely wisdom, thai from hence divers
suits and actions are not unlikely to be com-
menced and prosecuted in our several courts
at Westminster : We, desirous to bvoid lucli in-
conveniences, and out of our princely love and
affection to nil our subjects, beiiigwiiling to pre-
vent such errors as any of ourhmng subject!'
may happen to run inio, have thought fit in n
case uf ihit nature to advise with our Judges,
whci we duubt not are all well studied and in-
formed in the right of our sovereignty. And
because the Trials in ourseveral courts, by the
formality in pleading, will require a h)n|; piD-
traction, we have thoiiglit it etpedieiil, by
this our Letter diiected to you all, to require
your Judgments in the case, as it i« set down
in the inclosed Paper, which will not only
gaia time, but alsn be of more authority to
over-role any ptejudicate opinions of othem in
the point. >
■ Gir«n under our Signet at our court at
This being thus read, the Lord Keeper cnm-
innnded the Case inclosed to be read, bang
as followelh s
' C. R. When the good and safely of ilie
' kingdom in general is concerned, and tlit
' whole'kingdum is in danger; Whether may
' not the king, by Writ under tlie Great Seal of
' England, ceminiand all the subjects of this
' Liiigdum, at their charge, to provide and fur-
' iiisli such niimLer ofSliips, withmen, victuals
< and muiiiiion, and t<ir sudi lime as he shaU
' think fit, for the <lefence and s Lifeguard of the
' kingdom from such danger and peril ; and by
' law compel the doing thereof, in case of re-
' fuaal or refractoriness ? And wheib», in such
' a case, is not ilic king sole judge, both uf the
' danger, and when and Iiow the same is ta be
' prevented and avoided'
The Judges' Answer.
mimd, every man by liiniiielf^ and all of t
' together, taken lulo conisideratioa the Cosa
' and Question, signed hy your majesty, and
' inclosed in your royal Letter : and we arc of
' Opinion, Tliat when ihb good and safety of
' the kingdom in general is concerned, and the
' whole kingdom in danger, your majesty may,
' by Writ, under ibe Great Seal of Engluull,
' commaiid all the subjects of this your king-
' dom, at their chnrjjc, to provide and farniui
' such numher of Sliips, with men, muniiion,
' and victuals, and fur such time as your ma-
'Jesiy shall chink (it, fur thedclence and sali^-
* guard ol the kingdom Irom such danger and
' peril : and th • by law yonr majesty may
' compel the doing tliereof, in case ol refusal or
' refractorinet-s. And we are also of opinion,
' That in such case, your majesty is tlie sole
'Judge, bath vf the danger, and wl,en and how
' the same is to be prevented and avoided.
' Jo. Brampston, Jo. Fiinh, limup. Davenport,
' Jo. Denlmjo, Kich. Huttou, W, Jones, Geo.
'Craoke, Tho. Trevor, Geo. Vernon, Fru.
' Crawley, Itob. Berkley, Fra. WeMon.'t
* For an cxplanatiuii of this transaction, see
the Cnse of sir Jolin Finch, lord Fordwtcb,
1640,16 Car. 1.
t The influence and elTeet of this stated
Opinion mny be delivered in these words of
the lord Clarendon. " It is notoiiauriy kuown,
that pressure was born with much morf: che«r-
fulntsi before the Judgment fur llie king, than
ever it was afterwatd ; men before pleaiii^
themselves witli doing somewhat l<)i the kit>g's
testimony of tlieir nlTLCtJun, which
It bound to do. But when they
bea'rd thi'. demanded in a court of law as m
Kieht, and found it by swam Judges of tlie law
adjudi^ed so, npon such grounds and reasora
ns every st^nder-by was able <u swear was not
law, and mi bad lost the pieasur* aud del^hi of
6«] STATE TRIALS, ISChaelwI. 16S1 .~in the Que t^ Ship-IUmuy.
[S'lG
TIm uid Case, with the Judges' Opifibns
thcKtinlo, (rurmerJj in private delivered to his
inajeat;) beji^ tbu> publiclv maic known b;
my l«rd Keeper, who, withal, caused tlirir se-
Yeral Names to be read, ai ihcy were in order
suliscribrd ; (all the Judges being present save
inly Judge Crooke) tlie Lord Keeper tpake is
folic
vethi
if the Judges of England,
aod set under their own bands ; I say, this
being so resolved, as they do here expreits upon
every man's particular sladyinf- (he Case, nnd
upon a general confereDCB amon^l themselves,
it ii nf very ureal authority : for ilie very livts
and lands ot ibe king's Subjects are to be de*
termined by these reverend Judees ; much
more Bchaigeofthii nature, which God knows
cannot be burdensome to any, but is nf singu-
lar use and ounsequcnce, and lur the safety of .
the wfaoje kingdom. The command from his
majesty Is, Iliat I *hould publish this your Opi-
nion in this place, and give order, That it should
be entered in this Court, in the High Court of
Chanceiy, and in the courts of KingVBcncli,
Cummon-Pleas, and Exchequer ; for this is a
(hrngnot fit to be kept in a comer: and his
farther command Is, that you the Judges do
declare and publish this general lUsolulion of
all the Judges of EnEland, through all parts
of the kingdom, that afl men may take notice
thereof, and that those his subjects which have
been in an error, may inform themselves, or be
reformed. Yuahave credit canse to declare it
with joy, and you con hardly do it with honour
enoui^h to the king, that in so high a point of his
sovereignty, he bath been pleased to descend,
and tocommunicaiewithyouhisjudges; which
-abeweth, thai justice ana sovereignty, in hfs
majesty, do kiss each other. His farther plea-
sareis,TAat you let all know it isnot his pur-
pose by this resolution to stop, or check, the
actions or suit* which any have brought, or
-shall brini;, concerning ihii I'for it is his ma-
jnty's conininnd, that all aurh as proceed in
any action about the same have equal r<od meet
bring kiud and iluiifDl to the king; and iu-
uaad of giving were required lo pay ; and by a
k«ic that left no man any thing wluch he might
ciy his own : ibey no mure looked upon it as
the Cose of one man, but Uie Case of the king-
dom; nor as an Imposition laid upon tiiem by
justice, not to submit to. The damage and
mischief cannot be expressed, that the crown
and state mstained by tlie deserved lepronch
and infamy that attended the Judges by being
made use of in this and like arts .of power,
there being; no pooibility to preserte the dig-
nity, reverence nnd estimation oftbelawsihem-
selvei, bat l^ the iiitegrity and inoocency of
tb> Jadgei."
counsel untp their proceedings, that they may
not be surprized.
Now, my. lords, I have little more to say,
but this I am sure of, thai if any contrary opi-
nion .sliiill yet remain amongst men, it must
proceed from those that are S'ins of the law,
(FieUca eistnl artei, &c.) and yon the judges
of the realm have been accounted the futher*
of the law ; then, in good faith, it will ill he-
cfHne the son to dispute ngainsl the fiitber,
nnvini! llius delivered unto you what 1 re-
ceived in command from his majesty, as hi>
mujesiy doth, so do 1, leave it to youV judg-
The King mtrii John Haufdeh Jn the Cue
of Snip- Monet.
Trin. 13 Cor. I. ia Scace.
By Writ, or die Term of the Ilofy Trinity,
in tiie IJthyear of king Charles.
" Memarandum i that the Writ* i,r our lord
' tbe kiu|^ under the seal of the Exchctiuer, by
' tbe consent of the barons here, issued out in
' these words ;
' u. Charles by tbe grace of God, of Eng-
'land, Scotland, France, and Ireland, king,
' Defender of the Faith, &c. To tlie sheriff of
* Bucks greeting. Whereas seicmr and diver*
'sunis of money, specified in the Schedule to
' this Writ annexed, by virtue of our Writ
' under our seal of England, bearing date die
' 4th day of August in the 11th year of our
' reign, wereassesicd and t:hai^ed upon seve-
' ral persons in the said Schedule nnmed, for
' nnd townrdt lite providing of a Ship of War
' together with the ri^m and other llungs
' thereunto belonging, in tlie said Writpsirticu-
* larly mrntiuned ; which SHid severul sums uf
■ money being so assessed and charged, and un-
' paid and not satisfied, the Names of the said
■ several persons, together with the sever^
' sums of money charged upon them, were eer-
■ tified into tbe Court of our Chiincery by our
' Writ of CertiotHM, bearing dnie the Oth day
' of Mareh in the 13th yexr of oar reign, issu-
' iiig under our great leal aforesaid: and by
< our Writ of Mittimus under the said sent,
' bearing date the 5tli dny of the nionlhofMay
' instant, were sent into our Exchequer for
' furtlitr process thereupon lo be had, as by the
' tenor of the said Writ, bearing date the 4th
' d.iy of August in the llth year of our reign*,
' and by the Writ nf Certiorari, nnd Cerllli-
' cates thereupon made, sent into our said Ex-
' chequer, and there Of record, remaining in
' ihe custody of our remembrancer, ni'ire rally
' doth appear : We cnounaiid you, that yon do
' nol, by reason of any liberty, omit eiiterinp
■ thereupon ; nnd bj good and lawful men of
' your bailiwick, make known to the several
' p«-[w)n» aforesaid, named anil speoifird in tlie
' s^id Schedule, that tliey appear betbre the
' Barons of th» Exclieqner at Wesiitiinstor on
* A Latin Copynfthi.t Instrument will be
(bund at the end of these Froceedinp.
»17J STATE TRULS, i 3 Ch*rlei I. 1 637.
the OcUt« of the Holy Triiiiij ensuiDg ; In
shew and propose, if they huye or keow any
thing to Mj for themselTe*, whj thr; ought
liat ID be cliBTgrd with the uforcwid tevcral
Sums of Money upoo theoi aiiKiisci! in maimer
and forui afuresaid, and not paid, in the taid
SclMdule specified, and co latisfy the taniej
and further, to do and receive in the prelni8se»,
what our Ciiurt shall then there think fit to
be ordered; and there hring then this Writ,
and the names of (how tiy nhomyuu have >o
made ,kiiown until tlicm, WiCnets Hum-
PHKEY UivEtiFOKf , knt. at Westminster, the
did day of May, in the ISch year of our reign.
% the Roll.
' Heaiorandum of the same year of the king
in the Record Roll of this E^ter, and by the
baron Feiishaw, and the tenor of the aforffinid
Schedule in the sfureaaid Writ mcntione
tain personB in the county of Bucks, and of
certain Sums of Money upon them assessed,
and charaed for and towDrds the providing of
a Ship of War, togetlier with the ri|(^ing and
other things thereunta lulonging; by the vir-
tue of a certain writ under the great teal of
Unalaiid, bearing date the 4tli day of j\<tEuu
in Se llih year of Charles our now Inrd the
kiu^ and certified into tile court of Chancery
of our SHid lord the king to he unpaid, by vir-
tue ofaWrit of Certiorari, issuing out under
ihe seal aforeBnid, benring date tlie OlIi of
March in tita ISth year nf bis reign ; and by
Writ of Mittimus under the said seiil sent into
the Eicbequer of ourWd now loid the king,
for further process thereupon to be made, aa
by the tenor of the afi>iesaid Writ, beaiing
dale the 4th day of August in the uhovcsaid
l.lth year of uur said nun lord the king, and
by the Writ of Certiorari, and (heCcrtiUcaii
thereupon msMie sent intothe.faid E^cljeque .
and there of record remaining in tiic custody
of the remambmncer of OMr lor$l ihe king.
inore fully dnth appear ; u. Stoike Mfindi-
iiile, u. J. Ilainpden esq. il. At which day
Anthony Cheater, hart, ahenff of Ihs county
afbresaid, as loucliiiig the aforeiaid John
Hnmpdan, returned, that be by Nicholas Ai
Robert Alexander, Kicliard Harrison, and
William tUyborne, good and lawliil men of
his hailinick, made kjiown to the nfaresaid
John Hiunpden amongst o)^r things, that he
Hfipeair before the barans within written, a'
the day and place within contained ; to shei
oad propose, if he (wth or knoweih of any
thing to say for hims^ir, why he ought not to
ha charged with the aforettid sum upon hita
auesteil, and not |)aid, in the said Scliadule
specified, aod Co satisfy the sane, ^ it ii
ther commwded him. ,And now, that _. __
laj, irom Uie day of the Holy Trinity, opoii
ihne weeks the aforesaid John Hampden in
tlie«rarm>id Sdiadule (uuaed, here cometh
tbe sMoe, •ttd.tte SolwAde i
-The Kmgagaiiut Join :^imp^,aq.[A^
nexed, and they are read unto him. H« like-
wise prayeth Oyer of ^he aforesaid Wrjc,
bearing date the 4th dayof August in iIk 11th
year or Charles our said now lord the ^iiig in
the Writ of Scire Facias mentiuned, and ii ii
read unto him in these itords.
' M. Chari*™ by the grace of God, of Ens-
land, Scodand, Fm nee and lreldnd,kii>|. De-
fender of tbe Faith, &c. Tu the sheriff of
our county of 3uctf, the hailiSand burguio
of the boiuuith and parisb of BuckiugbDiiD,
' the mnyor, bnililTnud burgcsfes of tlie baraui)i
of Chipping Wiccijiube alias \Vicioiol)e,wd
' the good nieii in Ihe said bnroi^hs, paritb,
' and their said members; and in tlie townKiT
' Agmondesham, Wcndover, and Gre^t Ma^
' lowe, mid in all other borquglis, villajM,
' hamlets, and oilier places in the said caaDt}
' of Bucks, greeting. . Because ive ut ptat U
' understiuid, that certaio lliitvcs, piniei,aDd
' sea-ri>bbti?, ag well Turks, eneuties of Qirit-
'tianity, as others confednatwl together, wick-
' eiljy take away and despoil tbe ships, gooiis,
' ~ id merchandiKi^g, not (Ui!y of oi '
Engliih.neiiou ; «Dd at their pltuanliite
' carrii-d away Ihe tuen therein, ensia vine tbtu
in a most wretched captivity : And "«it«
we«ce them daily pr^p^riug Shipping furtki
tonnnay (lur subjects, and to angnne tbe
kingdom, unless a more speedy tciiiedy be 41-
pljed, and their endeavours mure vigureiii?
obviated : Considering also the dangeiSKliiis
c\'«ry wliere in these times of war hai^ out
us; so tliRt it belioves UB and our subjedtlD
hasten tbe Defence of tJ)e sea wd kiugdon
with nll.poEsihle eipcdition : We beiugrill-
ing by the help of -God, in the biglKsC degM
to provide fur the JDefeoce of the kingdaOt
■ the Protection of the >e)i, the »ecui i'y of am ■
subjects, tbe.sufe convoy uf sliippingandmer-
chandiie oxniiig to our kingdam of Eiij^o^i
and guiqg from the s.-iid kingdom Iji furcigii
Ends ; j\iid since we and our prc^nliw,
iop of England, have hiilienn been h"!^
' of tLo Sea aforeswd ; nnd it would io da
highest manner concern us, if ihi* roysl io-
iiour shauld in our days be lost, or /tog "J*
' diminished ; since atsu this burden of Dt-
fence which touches all, ought tu be brunt b;
' all, as hath been acqistoiued to be doDc M
' die law sod custom of iha kinjpkim lof £"$-
' land : We firmly enioin and cmnmsnd yoa
' the aforteaid sheriff, baili&, biiifesses,iDa]ori
' good men, and all others «ba<n«oeTer,abu>
meolioaed, in the boroughs, towns, vilUg(*i
'hamlets and places jibreHiid, and ili^rnMi-
' Licrs, in the &ith and allegiance sherry yi»
' are. bound to us, and as you kite us ami oai
' honour, as also under the forrcitiire cf .sU
' ibinga you can possibly forfeit to us, ibit J""
■ t^ause to be fitted out one ship af "ar rf tbe
burden of 450 tons, vrith men, as well tUlil
o&ceisas able.aecl expedenoed mariner^*
hundradaodrouracoreat htut; as sleo mdl
a sufficient quantity ef cannoB, muttelf, ^I'S'
S49J STATE TBIAI£, lsCHAtL«I.
' p«witer, piles ami ijitsn, (di| other arms ne-
'ce«ni7 for w(.r, *irh double tackling; as
♦■nlso Kith eompsient viciuiila tbr to monj
■ men, unlil the lit dn^ of Mnrch nonnc^il en-
' saing ; and fiom Ihence for SB weelti at your
IS weU IT
isthair
nagf.
. ' knd oth«r things iiece-saiy tiT w«r by thnt
' timf; on account of ilefending the sea nt our
* cvmrnand in company witli the ariminil ; id
' wbota we shjjl befnre the aforesaid Isi day of
' March, nommit the custody of the ^ea, to be
' and remaiD where he on our behiilf shall ap-
' mint ; and that you cause the same to be
' oronght into the pnit nf Portunou^ betbre
''ihenid lit day of 'March, so that they mnj
' be there that day at farthest ; thrncc to pro-
' ceed with our ^ips, and the ihipj of other
* loyal subjects for ihe Protection of the Se*,
' the Defence of you and your?) to repel nnd
' Tnnquish all ibnie whosnever 'they are, that
* endesTonr to molest and annny on the sea
' onr merchants ttid other loynl snbjecli afbre-
' said, CDinbg into our dominions <m accqunt
* of traffic, or returning thence to iheir own
' country. We have nlsh appointed you the
' iberiffof onrcnunty of Bucki, the briiliffand
' mayor of the 'boroughs and parisb aforesaid,
' or any two or more of jov, of whono ntir will
* if, thai yuit tbe aforesaid slieriiFof onr eounty
' of Bucks bfe oiir, within 30 days aftrr the re-
' ceipt of this Writ, Eo assess as much of the
' Charges aforesaid upon the aforetnii) borouElis
* of Bu^inghatn aitd Chipping Wiccombe alias
' Wiccombe with tlieir nieiiibera, as ought seve-
' r»lly to be laid on or assessed. And if such
' Aiaejsinent within the aforesaid 90 days shall
* not happen to be made bv you, two or mote
' of_you ; then we hiTB appointed you tlie afiite-
* said sheriff of our county of Bucks, to make
' lUcb anenment upon the aforesaid borough*,
* and palish, and members, as you shall see
* reasonaUe to be done. Anil our will is, that
* of your n doing, you the afuresaid shetifF of
' Backs wbullr cerii^ wnder your sea! the
< mayor and bailiffs aforesud. - We linve also
■ appointed you the aforesaid bailiff of the bo-
' rough and pariih of Buckingham, lo assess
■ every man In the laid borough and parish;
* and in the members thereof, and the land-
' tenants in the same, not having the ship afbre-
< aaid, or any ihare thereof, or- not serving
■ tbereiu' to contribute to tbe eipences aliout
' proriiion of the necesaary premists ; and to
* asacsB and lay upon the aloresaid borough and
■ parish with tlie memben thereof, in as nfore-
' said, that is to say, every one ef them accord-
* ing to their eitnte, goods, and enDjiloyment,
■ nnd the portions om ihem ai<e«sed, by dis-
' tresses, or other dne ways and menni to levy,
' Hid colleeton in that behalf to nominate nnd
'appfiint; and all those whom you shall find
' rebellioqi and refractory in the premises to
' imprison, there to remain till for tlieir deli~
* very we shall fnrther think lit to direct. We
* have also appointed fon the aforesaid mayor
' of tbe borough of Chippinrg WIceombe alias
' Wiccombe, to aiMW vrtfty mall u tbc seine
VOL. III.
ICST.—tnthtCatfqfSiap-Moruy. [S50
borough, and in the niF-mbprs thereof, and the
land-tenants iti the sanip, not having the ship
afuresaid, or unj slmre iliertof, or not serv-
ing iherfio. to cdntribnro 10 the ei)ienciia
nboutpriirisionol'ihe nfcessnry premises; and
tn assess and Itiy upoo tin; ntbressid boroovh
with the members ihere-if, was aforesaid, (bat
is 10 sny, evtry one nf thiTn according to their
estate and gi>adi>, or emplovment, and tb«
puriions on them assessed, by distresses, "r
other due ways and means to levy, and col-
lectors in that'behalfton'miinate and appoint;
and alt thove wboin you shall find rebellious
and refractor* in the premises to 'imprison,
thereW remain till for Uicir delirery we shall
further think £t to order and direct. And
said iherilTof oi.
every man iii ilie aforesaid towns of Agmnu-
deahnm, Wenilover, and Great MarloVr, and
in the members tbtreof, and in all tiie other
towns, viUagts, boroughs, hamlets, nnd other
phiccs in the afuresaid connly of Bucks, nnd
-tbe land-tenants in the same, not having the
ship eforejaid, or. any share thereof, or not
serving in die same, to contribute to the ei-
pences about the provision of the necessary
premisses, and to nssess nnd lay upon the said
towns, vilUgps, burrou^s, hnmlets and places,
with the members flieteof, so as aforesaid,
that is tu say, every ono.of them according to
their estate and gi>o<ts, ar employment ; and
tbe portions on them ntsesstd fiy distresses or
i)tlier due ways and means to lei^, and col-
lectors in that behalf to nominate nnd ap-
point; and all those whom you shall find re-
De1ti'><n and refractoi^ in the premitsc^ to im-
prison, tltere to remain till for tbeir delivery
we shall fiirtlier Aink fit to order and direct.
And further, we cotmnand jou all, that you
diligently npply yourselves to the premisses,
and eflectunll; do nnd CKccute the same, at
ton sball nniKer tbr cuiitmry nt .vovr peril.
But our will nnd pleasure is, not that under
colour of our mandate afiiresnid, you cnu.«e to .
be levied from the said pe'snns more thaa
shall suflice for ihe neceiviry expenses of the
premisses ; or thnt any one who shall levy any
rooney of the roiiinbutors to the charges
aforesaid, detnin thesnine orany partdtereof
in his own pussesiicn, or presume to appro-
priate it to other uses under any pretence or
cokrar whatsoever. It being our nHI, that if
mureahnll be collected than is sufficient, that
ibe same he paid back again to those who
sbnil-have so paid the same, accordini; tu every
man's re»^ctive sli;tre and proportion. Wii-
nera myself at Westminster the 4th day of
August In the llih ;venr of our reign.
' He prayeth also Oyer of the aforesaid .writ
Scire furiat above mentioned, and it is in f ika
manner rend nnto him.
' ju. Chsrle^, by lite geae* of G«d, of Eng-
land, Scotland, Fnmcc and Ireland, king, de-
finder of the faith, frc. To ibnewho were ah^-
rifis of our county of Bucks between tbe 4lb
day of Aagm^ in jbc }lifa /ear of our reigg,
3]
S51] STATETRIALS. IICham-esL 1637.
* and the Ist day of March then neat caiuiug,
' to those wIm were bailiilii ol' tli« burruiigli and
' pariiih of Buctingliam, and tlie major sod
' bailid* uf thn buirough of Cliippii^ Wic-
' cuDibe alias Wiccombe, in the saia county of
* Bucks, frictiin tlie time aroresHid, greeting.
' WhercHs by our Writ made under our (!reat
' wal ofEnfilaQd, braring date tlie nrt>rMRid4th
< dayof AugukL in the nth year aboTcMud, for
' the defeuce of the bin^dom, the protection of
' the lea, the tecuricy of our tubjtcti, and the
■ • anfe cmivby of the ships ftnd msrchandiie
' coming to our liingdoin and passing theuce to
* tbri'ign parts; we cominHnded the iberitFof
' our county ol" BucU, ihi' bailiff of the bor-
' ruugh alia pariah of Buckingham, as also the
' biireessei of the said burtough, the mayor end
■ba.hSs of Chipping Wiccumbe alia* Wio
< comhe.'its also the burgesses of the said bur-
* rough, and tha good uien in the said burroughs
' and jiarith, and in the tuid borroughs and pa-
' rish Biid meuibert of the same, nnd iu the
' towns of Agniondeshain, Wendover, and
' Great Marlou', and in all other places, lowns,
* burroughs, villages, hanleta, and oUiec places
' in the snid county of Buck«, thnt you should
* cause to be fitted out cine ship of ivur of the
' burden of 450 tuns, witli nien, as well skilful
' officers as sble and eiperienced mariners,
' 180 at leait, as also with a lulhcient quantity
* of cannons, mnskrt>, pikes and spears, gun-
* powder, and ntherannti necetsaiy for war,
' with double tackling, as also with competent
* victuals for lo many men, at a ccnain day in
' the nid writ contained, and from theuce for
<3G weelis ai the' cotta of the men and land-
* tenants of the burroughs, piiriib, towns, ij|<
* lages, hamleta, and other places itbove men-
' ti»nf d in Uie said coanty of Bucks, as well iu
' rictuuls, aS the men's wage;, and other thinp
' necesBury for war, by that time, for defeiidiiig
' the sea ; and ihnt you sliould csuse the same
* lo be brought into the port of Poitsmoath
' n-itbin the time in the said irrit limited. And
* whereas by the said Writ, we nppoinled ilie
* SherifTor our county of BncLs albrrsaid, the
' baihff of the hurrough and parish of Buckiag-
' bam aforesaid, and the mayor of tlie hurrough
* of Chipping-WiccODibe alias Wiccombe aibre-
■ said, or any two or more of i hem, of w honi
•our will was that the Sheriff of oursaidoouDty
■ of Bucks should be sue, to assess as much of
etbe oojts aforesHid, upon the nforesaid bur-
' loi^h and pariah of Buckingham, and upon
' the aforewid hurrough of Chippin^Wiccomhe
' alias Wiccombe with their members as ought
< teverally ba be laid on, or assessed. And
■"whereas we appointed tlie bailiff of the bur-
' rough and pansh of Buckin^m, and the
■ uuyaroftbccuirroughofChippiitg-Wiccombe
' nlias Wiccombe, BnreraUy and respectively to
■ assess every man in the said several bitrouEhi
' and panah, and Uie members thereof, and the
' land-tcDanta in the uune. not h*vini> tlie ship
' aforesaid « any share (hereof, or not terviag
* thereia, to foatribuie to tlie txpence* about
'dwprensioBoflbcBMMMKj'^nmMeftt '
upon ibe flliirnaid borough aod p^b of
Buckiiigliam, and upuD the aforesaid banngb
of CI lipping- Wiccombe alias Wiccombe, lo
as aforesaid, then to be seventy snd db-
tiuctly laid, that is to say, every oaeofihea
acconling to iheir estate and goods, oi em-
plnyment, and the portions upon ibeoi ataets-
ed by distresses, or otfcer due ways and nuaai
to levy, and collecton in tbat behalf to ddou-
nate and appoint, in manner and fornt m in
the said writ was coDunanded. And|wheieattf
our said writ we moreoTer *p] ------' -■-- -'--
riffof out said county of Buck
man in the aforesaid town* of A ,
WendoTcr, Great Mariow, and in the m
bers thereof, and in all the other inwni, vil-
liges, boruughs, hamlets, and uther places ia
the aibreiaid county of Bucks, and the land*
tenants iu the some, to twntribute to the ei-
pences abont the pravision of the ntccMsiy
premisoet, and the other tlnngs to do and et
execute in innnncr and fbrm at by the ssid
nrit was comnuinded. And because looie
men and laud-leiiauts in the said county, bo-
rouglis, parish, towns, viUaoes, hamlets, wid
other phices, by Mveial taiatUHi^and somof
money, by you upon them respccLvel v laid sod
assessed towards thecontrituiiion of toe boidw
uforcsoid, accorduig to the exigency of the writ
aforLiaid, hare not yet paid and |ati«Ged tke
laine, fant have refused, and yet gaiaiay to pay
the same, as we are infonued. And wtaens
our late will was to be cerlihcd as well of tbe
nnnaes of the men and land tenants who hid
been assessed towards the contribution ol'tbe
eipences abuvesaiil, and had nut paid the
money so assessed, as alta of the several poi-
tiuni or sum* of money laid upon them. Voa
neveithelest iu contempt of us, liave tent ns-
thiug Upon ttia return of our virit limited. W(
iherelbre command you, ihe late sheriff of oai
coDiity of Bucks, as we heretofore have gmd-
manded you, that you certify to us, as well of
[he oames of the men, aad land tenants, in tke
aforesaid county, by vinue of nut said writ by
you reipectively aosetted, «g the sums of oMi-
iiey on thein sii assesMd, nbidi they liave not
yet paid, nor sotitfied, but refuse to pay lb*
same; asalso oftheseveral portionsand soma
of money, by you ilie aforesaid late sbeiif at
our couuty uf Bucks upon tliem assessed, re-
duced into writing,- skh all things toucbiat
the same, into our Chancery, distincity aod
openly under your seal), witbont driay, or st
&rthcBt before tlie S6th dat of Aprd aeit en-
suing, wlieresMver yua shiill then be, ti^tber
with this writ. 'And we coinmand yuu tk*
afuresaiil late bailiff of the borotwii ami parish
offiuckingbBBi,audlht luayurufthr bofos^
of Chipping Wircombe, i^m Wi|Xombr,M
we heretorora have cunwanded >ou, that you
sevenlly certify us, a« nail of the Dames of
the aCiresnid men and laurt tenants in the bo-
rough and parioli of Buckingham, aad borowk
of Chipping Wiccombe lium WiccAwb*, by
virtue of our s«id writ fint above isentinnta
iq yott xngtOtttiy wrnnti, u the iiua* "
9SS]'- OTATETWALS, i3C«Aii.tMl. IMl—irndtCaiei^Sa^Vaug. tS5*
• moaaj on thcai lo nMoMed, irhioli die; bsTC
' nut jet paid, iior satisfied, hut reliue to pay
' the s*ro( ; as aUo of ttie several poitinnj ntid
* nicii of monay by you upon tbeai lespecc-
' ively awoied, reduced in like manner iota
jn(, niU) all things toachiag the laaie,
* intu our Cboncaiy af[H««aiil, diiiioetlv and
• opraly wiibovt d«lii<r, or at fankeM befor
' tb« «tfth day of Apra
< Bocrer yoa tfcall tbea be, toaetber nith thU
' MTJi. WitDeM mytelf at Weatminater, tfae
* 9tb day of Matdi, [in tfap ISih year of our
■ reino. Eiks. At wbicb day, Peter Tmple
< aoii Il«neag« Pnihy ratumnl the afenmid
' writ, by indunemeni tfaui, u. Tbe esrcoCJon
< aftltii Writ appear* in cettMB gchedulea ti)
•tbia WriiBdHexad. The tenvref wtiidiScbe-
' dulM M to tbe aioreoaid Jaha Hampden le-
■ toraid by Ibt atorcuid Peter Tsmplis Jbllowt
■ iu theM nord*. it. Buck*, m. I Peter Temple
< kHgiu and baniiwt, wbe wai sbeiiff of die
* fiouoPr of Backi, that ia ta any, between tbe
< 4th day of August, in tbe IJth yenc of <be
' reign ofoarturdCbarletnnv king efZngltad,
■ &c. «nd tke 3Siid day of Febmary thm neit
' foUowHig ; OB wkicfa day I nenl out of oiy
* oAm of ahanff of the eouMy of Buckt afiire-
-* gaid; by rirtue of tbe idd Writ of oin- lord
' tbe kiag la tins Schedule annexed, do certify
' anta snr (aid lord tile kjn^ i^to hi* Chancery,
* that by vinne, and accurding to the exigency
' of the •nil of tnrtaidlord tlie king inued out
* of hi* Chancery, and there inrolted of reeord,
' and, anMDgst aibers, directed to the sheriff of
' the laid county of Busk), bearing dute tlie
< Mb day of Auguat, in tbe llih year afbresaid ;
* hare aaiceaed upon aeieml men and land le-
' nana of the coamy of Bucta aforcaaid, whose
' naittei are under- written, the leveral portion*
* and sunii of money at their particutars placed
'' betow, to coutribule to tlie expencei about
' the providing of tiie ship in the Miid writ men-
* tioned; whicli saiii portions and lums of mo-
' Dey, or aay parcel thereof, before my going
'out of my oibceofBheriffof ibcconnty afore-
' laid, the aiiid men and land tpnnnts, or nny of
' ibem whose names are under-written, have
' not paid, but have refined to pay the Mrae to
' my nands, or tbe hands of tbe colkcior by me
* in that behalf appninted, by virtue of the writ
' last laentioDed, vii. Stoake Mandif iile, u. Mr.
' Join' Hampden, eeq. 11. And the tennre of
* tbe o^r Sctiedule by tbe aforesaid Heneage
* Prohy in like manner rrtorned, and to the
* nidWrit annexed abo,f<iHows in these words:
' ■. * 'Riere is to be accompted apon by (be a»-
' • sesiors, high cnnstables, petty constsliles
' * within themid county in genera], which cnn-
* 'not be aceompted for by ur Ptfter Temple,
• ' being a) it is conceived short 4l.' '
' I Heaeage Probj, esq. who was jberjIT' of
' the county of Bucks between the <?9nd day' of
* Febroary, in tbe lllbyearof the reign of om
' lord Charles now king of Engtantl, &c. and
' from the said dny nod year, to the first day of
* March then next foilowing ; by virtue of the
■ W(it af our .said lerd the king to (fail Sehedole
annexed, do certify onto our said kwd ike king
into his Cbaiiceiy, that tJie men and land te-
nants of il>ei:aiuity of Bucks aforesaid, or any
oneof ibem whose names are exprened in cer-
tain ichedulea to clii» Writ annexed, who were
aaacMcd hy sirPeier Temple knighcaud baro-
net, late slieriff uf the county uf Bucks afore-
said, whilst be wa« in tbe oGce of sbetiif of the
county nibretaid, in ibe^seienl portions and
sums of money placed at their several name*
above, to contribute to the expencei about ib*
pnwidiBgof the ship; by virtue, aud according
(o ibg exigency of the Writ of uur said lord the
king, issued out of his Chancery, and tlwt«
iarolled of record, directed aaituigit others to
the siteriffof the said county of Bucks, bear-
mg date the 4th day oC Aagnst, in the 11th
year aforesaid, hare not paid, but have re-
tiued to pay ilie same to Heoeagc Froby be-
ing sberiS' of tbe said county of Biicka, next -
nicer the goiog out of sir Pet« I'emple knight
and baronet, &oiu the office of sberilf of tha
aaid couBCy,,or to the hands of tbe collector
in that behalf appninted by virtue of the Writ
Jaat nteotiooed. And Airilier, the aluresaid
John Hampden in like mamier prayeth Oyer
of the afuresaid Aril of Mittimns, of whicti
Heation is made in the Writ of Scirj Fatiaa,
afuresaid, and it is read onio him in these
words: u, Cbnries by the grace of God, of
En^aud, Scat! and,' France, and Ireiaiid, king,
deteniler of the Mth, Sic. To the tfeaturer
and barons of bii Eacbeqaer, greeting : By
the teiu>r of a certain Writ of ours made-
kinder our great seal of Enghtad, bearing data
the4thday(tf August, in tite llthyeaigf our
re^, iBMlied in tha ri^ of our Chancery ;
by which we commai;dad tbe Acfilf of our
caanty of Buckt, the bailiff and Luigesses of.
tbe boraufh and parish of BuckiitghHm, the
mayor or ^iliff and bargeMsi of the borough
of Chippin| Wiccombe nlias Wiccosilie, and
the good men in the said borouglis, parish, and
the mcoibeis thereof, and in tlie towns of Ag-
maiidesbain, Wendover, and Great Marlow ;
and in all ether boroughs, (owns, villages, ,
hamlet*, and other plfictt iu the said county of
Bucks; that fi>r the def<)ni;a of the kingdom,
the protection uf the sen,- tbe securitv of the
subject*, and tale convoy of the ships and
merchaiidiie coming to our kingdom of Eng-
land, and thence going to foragn parts, thCT
should lit out one sliipof warof the burden or
450 tuns, with men, as well skilful officers a»
Able and expeiieaced mariners, a handred and'
fonrscore at leait; as nUo with n sufficient
quanci^ of cannons, muskets, gsiipawder,
pikes ud spears, with other arms uecessary
for war, aiM with double tackhng; as als»
with competant vkcoils for so many men
at a certain day, and' fr<Ka thence for
twenty-sit waeka at the coils of iba niea and
land-ieiiants of tbe boronebs, pariih, towns,
villages, hamlets, and other place* abova-
moDCioned in ibe said couaty of Bueks,
as well in vicloab a* the aMO.'* wages, and
o\im thiaga BWMMary fot mi for that limftf
S55] STATE TRIALS, ISCbarles I. )flS7.
* on account of the deleiice of the s«a updcr
' our coiiiiDBnd, ju coiupanj' nf the ndmintl to
' be and remain ; aiid tjiat tbej abould cnuse
* ihesnme lo bebrouglitiiito the portof Ports-
* mouili aliout the liine limited in the laid
' writ ; atid dint ihe; iliould re^pt'ctiiei; asaess
' erery man in the said Ikiruugh and parisli 'of
* Buck ingbnni, and brwoiijh nf Chippiiig-Wio-
' combe alias VViccombe, and iii the rest of die
' boFnu);fa9,' loirns, vill'j>ici, hnrntets, mid other
'placesiii the 9»!d county of .Bucts, and llie
* meu)be>9 tlicrtiil', uiid llie land' tenant* in ihe
< game, to cjiitribute to tbe expencet about
* tbe pravioion ot'ibe necGtiarr premissifs, and
' othn tlnngs lo do and eiecuto in mauuer mi!
' form B3 waa caiiiunuided bj tlie said writ :
' We sand to joa beiiiK prpKnt the iDclosed
' writ ; fur that/ ihe safety of our kiogdnm of
' Englandf flud our people thereof were in dan-
' E^i which we have taken cate lo hare i»iied
' oat of onr Chancery amnngu other writ9,<lD
' make such provisiun nnd nxsestmcnt ibroHgh
' every county, city^ borooeh, town, village,
' homlels asd giinecs of uur kin^oin of Kag-
' land, and-of ^V'EllcB, Bod thi; me inberg thereof,
' out of our ChaHcery olbresaid lately isniiog,
< and therein like manner iniolled. And alga
' a certain other Writ <if euni locertlfj' ui into
' our Ciinncery, as well of the namet-of the
' men and tanii-teanati in tit* ofurenid borougli
' end parish or BuckiDKham, and' borougli of
' Cliipping-Wiccomhe aliat Wiccorrbe, and hi
' [he rcBt of the bnroualis, lowni, f lUaf es, hain-
' leti, and plucea of the said counCyof Bucb),
' who by uur coQiiniuid aforesaid were auegied
' to coiilribule towards tbe proviiion of the
' premisses, and have aot paid the tuo)* of
' money upan them bo BiKssrd; as aJ»»of ther
' severalportioos and lumaof money 10 charged
' and laid upon the said men and Und-lenMits ;
' as hkewise certain certilicaTes by virtue of the
' suid writ reduced in wniint, and sent isto
' our Chancery. Wc ako send yon being pre-
' Mat th« tudiiied, conimanding you, that hiT-
' in^ inspected the nriis and certificates afon-
' Mid, you furiber caiMe to be done ibereupou
' for tbe levying, colleclin|[, and receiving all
' and singuhtr the aforeMid sums of mnneT of
' tbe ofiiresaid oontnbntion as jet unpaid, as
' by rii(bl, and'acoordii^ lo' the law and custom
' o( our kingdom of England hath been used lo
' be done, Witnaes myself at Westoiiiister the
. ' 5th day of May in rlie ]3tli year of our reiirn.
' Evse. As in the said Writs and Schedules
' 'thereunto annexed, certified into- the Ciche-
* qucT of our Mid hird (be king, and there in the
' custody nf the remembrancer of our said lord
' the kiu^ remainu^ of record more fully is
< contained. Which I'eiug rend, heard, and by
' him ttodecMood, the Mid jolyi Hampden- com-
' plaioetli, that by colour of the several Writs,
' their Hetutna and Scbedulrs t4>thein annexed,
' he hath been irievouily vexed and disioieted,
' and thiit unjufdy; because be saith, that the
' aforesaid several Writ* above mentianed,
*• their Reiuraaand .Schedule* to them anaaied,
' and ;hp .matter in them eoDtaiued, art not
. — Tbe Kag agavulJclai Hampdai, a^. (666
' sufficient in ibe law to charge the said Jobs
' Uainpdea on or witli tlie psymeiit of the
' nioresairl lom of 30 khiUiui(s on liim iu the
' Schedule al^ircMiid, in the manner and fora
' nf >reMid taxed and a*setsed, at any pmrd
' itiereof; lo whidi be hath no necessity, or
> IS uldigerl by the Ian of tlie land to mate sn-
' svet : Whiireupon by reason of the insuA-
' cienty of the atbfes4id severs! Writs above-
' iBCnluined, their Ueturus, the Schedules In
' tlieiii Himeied, and Uie matter in the said
' Writs and Schedules contatned, he ibe mi^
' Juhit Hampden prayeth Judgment, If oor
' said now lord the king oitght or is willing fii>
■iher tn Bsseas lU chaige him with the afutesai4 .
' iOt. or sny pacctl thereof. Hub. Uolboiib.
■ And John Banks kulgbi, Attutney-Genml
' of our now lord, tbe king who sucth lor on
' said lord the king, being pre»e»t here in coot,
' the same dnj in his proper persooj MUtb, that
' tlie afnrenaid several Wnts, and their Kettuns,
' snd ihe Schedules aforesaid ta the same an-
' nexed, and ibe matter iu the same con-
' [lined, are sufficient in tbe law to chatgt
' the aforaiaid John Hampdea wiUi the alure-
' SAid ^U«, upou bim aiscMed k> the form, asd
' for the cause aforesaid ; wliidi said maiter,
' he the said Attoniey-General of onpsaidkud
' the ting, fur and in hebnlf of our said lord
■ tbe king, is ready to verify j ajid which nialto'
' tbe aforesaid John liompdeii doth not deny,
' nor auy wise make Answer tliereuntn, Lut
' wiii^ly refusetb tu admit ibe vcrifcstion
' tberHof, and tberefiire prayetb jutlgioenl ; sod
■ that tbe aforesaid Jubn Ilampdeii be chwgid
' witb the Mid 90s. and Mtisfy the sana.
" Jduh BtHU."
Tlie Fir5t Day's Abclment of Mr.ST. JOHN.*
on behalf of Mr. Hahpdes, before all ibe
Judi<e!i in the Exchequer Chamber, in lU
Great Case of Shii-Mobei.
* " Mr. Saint Jubu, who wn» in a firm snd
entire ooi^uuctloii mitli tlie utlier two, was a
lawyer of Uucolus-Inn, known to be of parts
HUd industry, butnot taken noiioe of for prat-
tice in Westminster-Hall, nil be argued at the
Eichequer-Cbamber tlte case of Sliip-BUDay
on the behalf of Mr. Hampden ; whifh gave
him much reputation, and colTed bioi iols oil
courts, and to all catues, wUeie the king's pre-
native was inoit ci>DtesCed, He was a wio
reserredr and ota dark and eloaded connu-
nanc^ very proud, and conversing with teiy
few, und ibose, men of his own humour and in-
clinations, lie had been questainedi coo-
mitced,«nd brought into the Star Clwmber,
many years belote, with other persons of great
lUKe and reputation (which nrst brought his
name upon the it^e) for comnuinicatiag wme
paper among themselves, which some men it
that tinie had a miud to have extended to r
Ataiffi of Mditlon ; but it beiii| quick]/ evideat
857j STATE TRIALS, IS C>aiui L
reciting, Tiint wfaeieoi sc*erat Bums of mODCj
mcDUuaed inaSchedule toifaRfWric uinex«(t,
by a nrit under tlie great »eal of Euglniiil,
dated 4 Au]{usti 11 Car* leaseil upoD Kvtnil
persom for providing M n. tliip ut war, were
not [laid: HnrI thut upon a LVrtbrari dated
9 ManiJ 13 Curoli, tiiese hiids aud the aeveral
penuDs upon wliom tbey were BHieMed, were
certified into ihe Chnncerj, aitd fram tlience
by Mittimus dated 5 MaiJ, nera sent into tlie
Eicbe<)uer, tliat process luigbt b« issued Bgainst
these defaulter* : thereupon the iherilf is ciHn-
maodeil, ' Quod M;iri iacetet' to ttioie several
perwiis to appear in the Eichequt^r Uctab'
TriDilot' 18 Cnroli, tn iliew cniiie why ihej
should not pay thiise suma asseised upon tliem.
. The Sheriff returns, • Quod Bciti fecit' Jalin
Hampden, enj. who wu assessed at SOj. and
he hath not paid it. Mr. llnmpdcn hath ap-
}»eared u)d demanded Oyer of Jie Scir' Fac' of
liie Schedule of (he writ dated 4 Augusti, the
Certiorari luid the Mittimus, and oF their se-
vera] iteturos, and huth tbereupon demurred
The Writ dated 4 Au-usti 11 Car' because
it n the gtound of the issuing forth the Sci ia',
BUd so by necessary conseijuence, is tliat which
first -occasioned any process against him, it will
bathe subject Tri I ID whence will be fetched all
that shall tie said either far or against my client.
1 will end[>aTour by breaking ic into pBiU,more
dearly to present it to your lordships view.
The thing commanded is, that this coimty
should provide a Ship of war of 450 toiis, with
180 tneo, guns, gunpowder, double tackling,
victuals, and all other thiiip necessary, and to
bring her t« Portsmouth ty the 1st of March
fbllowin^, and from ibnt time tn provide her of
victuals, niarinen wage*, and all other neces-
saries for S0 weeks. For effecting this, there
b power given to assess each person within the
county ' secuadum alaram et faculiatcs,' and
(0 bring in these sesses by distress, ' ct quos re-
' belles intenirent' to imprison tlieir peisoqs.
Mj lords, if the Writ had staid here, and
(one QO further, the comrDaiid though full in
word, it had beeu void in l»w, because as yet
it appeaii not fur what end this sliip wu to be
provided. 40 Ass. Plow. A' Commissioii to
■eiie mens goods notoriuusly suspected of friany,
before conviction,adjiulgedvoid, because there'
tiiat the prosecution would not he attended
with success, thty were all sliordy after dis-
charged; but he never forgave the court the
first ssBBult. und contracted an implacable
displeasure against the church purely from
tbe company he kept He wasdf an intimate
trust nitli the earl of Bedford, to whom he
was in some sort allied (being ■ natumj son
of the house o( BuUingbrook) and by him
liTougbt iDta all matters where himself was
to be concerned. It was generally believed,
that these three persons, with tlie other three
lords mentioned before, were of the most inti-
mate and eniire tnitt with each other, and
ntaile the engine wbidi morad all the rest."
1 6S7.— » til Can <f Oy-li/oiKy. [SS»
for* the command, without cause skcn, and
that sulhcieut in law too, woulri be void.
In the second place therefore tbey ire set
down to be thew : ' Pro deten^ne K^nj,
' tuitioite Marii, securicate Subditorum, ei
* salvn conductioueNuviuin,' botli outward and
inward, the Sea being inl'tsted with pirates, and
more shippiug being daily prepared ' ad tlrgnum.
' gravandum ;' ilme are the end«.
In (be third place, the lenalily of it, that
every man ■ secundum atatuin et fncultatcs'
should be hereunto a&ses^, h thus inforced.
Fir^t, from Custom and continued use, in these
words; That the Sea ' per e^ntem Aii;;licnnnm
' ah olim drfendi consucrit.' - Aod secnndlv,
ihis Use proved to be from a common ground
(if equity ; ' Onus defensiouis, quod oinnes tnn-
' ((it, per omnes debet supponari / And the
Rule of Equity backed by the Common Law in
these words,' Prout per legem etcunsuetudiutm
' regni Aiigllie fieri coosuevii.' The argu-
ment stands thus ; All have benefit by defencA
of the realm, and therefore by law the Charge
ouaht to be home by all.
Then it is further inferred, that every man,
even by his allegiance, is hound to conlriliute to
this Charge, the coirmand being ' in tide et
' It^ancia quibus nobis tcneinini.' Of thesr
parts the Writ' consists, which all being put
together, in brief declare the scope and eod of
the issuing forth thereof to be the Defence and
Safety ef ihe kingdom ; a thing so necessary,
that it must needs be legal : for it is too near
and too narrow a conceit of the wisdom and
policy of the Liw to ibink, thai whilst the car«
thereof should be confined only to the presar-
valion of the general members of the body peli'
tic from the wrongt and piesiuresikatmiglil be
olTeied from others to the fellow-members, th.tE
in tbe mean lime it will leave the whole to thp
violence and will of enemies: so that whilst
real property in his Goods, not to be impeached
by any uhaisoever within the realm ; yet con-'
sidered all together ai tbey mnLe tlie ■ Unmn
' Compositum,' they should liave in them only
' Pracariam Possessionem," or Tenancy at Wifi
in regard of Foreigners. My lords, this cannot
be; Tor the law is so careful herein, that even
afar off it foresees and prevents all dnngers in
this Vtnd ; and that is the reason that an alien,
though a friend, hath not capncity to pureliase
any land in tbe realm. And if tbe law be so
quick-ai^hted,*ithatto prevent but possibility of
danger, it keeps lach strangers from having any
land within the realm, which desire to come by
it peaceably and for valuable consideration) ;
by this we may easily see the great care it hath
to prevent apparent dangers, which usually
proceed from open force and viulence. Whicn
furtlier appears by the Ereamesii of the punisl)-
ment which tbe law inlicis upon ofiendets in
this kind, which is HiKh-Tminon, of all othft
tbe greatest. 13 Ellz. Dyer sgS, Stoi^ * con-
8M} STATE TRIALS, ISCraklesI. I6S7— TV Jth£afaM«A4HH«HfMbi,aj.[N0
Snl bcjund sea with h foreign state lo iiiTRtte
reslm; aud though nmhinti was attempted.
Sit wns nrtjud^ed H i^h-Treu«on. And !1
. 3, fo. S3, and 45 Ed. S, ti. R man killed a
captain tl<nt irus goiii); with 90 mt-n at arms tu
the Ling in hii viarK, and it wu adjuil^t^ lo he
H^l 1-1 reason. And so bj some opiniims in
Erint it is, to bum or sink any ot tlie kind's
hipa. By ihe greatness of ttie puriijhment tor
the breach nf the negBliTe pun oj the liiw, we
miitht understand ilie pert mpttiri nest and force
of the affimiBtiK part. So ibat, nij lord", iu
this case tbe quesiion is not de re, lur by ibe
law the safety of the reiilin is to be provkJed for;
* Sufos Pupoli Biiiirt-ma le> :' Ndtber is tlie
queUiuD d* prrtoait, eitlier iu tctipect of the
PcrsnoB who are to hear the Cha^ of it, or of
the persons wtv.m tlic Law bath intrusted ¥tith
the care aitd power of this comison Defence,
For the first, thai is, the Persons that nre to
be«t thi> Cliarge, that in the writ, ' Quod
" omnes taiif^ per inDne« debet supnoftari :'
TT>e reawns o/ the Writ are weichtj, and
a^reealile to the rule botli of the Civil and
Cocntuon Law, ' Qui teniit comitodam. sentire
* debet et onus i' So that I conceive (be burden
lies npoD all. In respect of our tona nalun*.
ir Live
tmeBiatiother: In respect
•o aeemUkni iletum ttjacullat
jTcntpr ibe stale and meani of iiicli;.rnd, the
greater the benefit by tlie Dtfence, The law
xa this case of Defence againbt the invasiun of
living enemies, beiiif; the«.iniG with chatoe^unst
oar soil and ground by the ioundation-i mid out-
ngt» of the sea sod fresh water; fur by the
.Uw, a* appears by the COmmi-sion cif Sewerg,
as well before tbe StMuie of 38 Hen, S, as
nace lo the repaTriog of a bank or cuusej,
lirer, or other sewer, ikU are chargeable that
hare ' Defensioiiem, Comniodum, veT, Salva-
^tionem quolitercunque,' All tiint have De-
^ce must tie assessed, the Assess must be
•quallj distritiuted, and therefore Uid upon
every man wiihin ibe level, * Pro rota portionis
' tenura: suie, seu pro quancitate communis
' pasture: veipiscariK;' tbemore land.cammoii,
or benelic of tishiiig each man hath, according
to the propnritgn tiiereof tLe Assess must be.
So that, mj lords, in tbe secondpluce, the ques-
tion will nut be. Whether my Cbent byljw be
exempted from tbe Charge nf the Deience of
. tbe realm ; for which Niher bis majesiy*! sub-
jects heought tohet;i to bear thecomn^uii lur-
den, and tanre or le.s may be laid upi'n him
firoportioBably lo his e^tHtc and means of liie-
ibood.
Neither, Thirdly, is there any ctuctinD [<■ he
made but tilt: law hatli intrusted the person oi
his rttyal maJeMy, with Ibe c;ire of tliis Defiiice.
Tbe Defence and Protection which we hHve in
our bodies, lands, and i^iinds, against nnjr within
dte realm, we kuutr it is fnini him ; for ajl
juriidiciion legal, butb ecclesinttical and livil,
which defends its m them, is nbolly in his ma-
jesty. The Miue it is in ca^o of foreign de-
fence, even by |h« Jut OtntiuM, u appean in
the text, by the peoples desiring that thty
■night be like otbrr natiuns, by hnnng a kiag
that migbi go in and nut before them, and Gibt
(heir battles. That the kriig, snd that Irg^iy,
ralletii the tingdnm ' Uegnum nnstrum,' and
evei^ rity and great town ' Civrlniem tl ViHua
' nostrum :' Quoad ■ propnetatem' it cannat
lie, because (hey are the sereral laad-owners;
it must he so tlietefbre principnlly in this re-
spect, ' Quoad protectionein et defrnsionrm,'
iSeillier hnth the law invested the erawn with
this height iiT sovereignty nnly na a hmnranvii,
for the "renter splendor of if, but likeviie us
duty oi the crown, or pan utiniilrrii, furthc
good and safe^'of the realm, which tn mtnr
of the ancient Commissions of Sewers, b*fe«
(he itnCute of 88 Hen. 8,18 thus cipreaid, The
king ' ratione regite di^nitaiiE et per jummni-
* turn est astrictus ad providendom salTstioni
' regni undiqnaque ;' so ihnt both m honoar,
and by hii oath tie is bound to pruvirie for tbe
safely of the rrnlm, and that eitatmqua^t.
My lords, by the Law tbe king is ^a-
familiat, which by the Law of fficonotnick is,
not onlv to keep pence at home, but tn pro(Kt
big wile and children, and whole family from
abroad. It is his vigilancy and watehlnhifS)
tliat discOT'crs who are our friends, and who irt
onr foes; and that after auch discaretyfint
warns us of ihem ; for he only bath powei to
make war nnd peace,
Neitlier hath ibe taw only entnnled the tare
ofDefence to his majesty. Wit badt htewlK,
secondly, put the ./trnrnt' Pofafot' and mem
of Defence whnlly into his hands ; for when (fee
enemy is by bim discovered and dedaied, itis
not in the poner of the Subject to oidertbc
wny and means of Defence, either by lesot
by land, according as they shall think lit; ht
no nian without commission or specinl Licence
from bis majesty, can set forih any ships to ie»
for that purpose; neither can any msn >itll-
out such coniinission or licence, unless njxn
suttden cnming of enemies, erect a fmC, cutle,
or bulwark, tlraugh upon his own grOuud : d«-
ther, but upon some such emergent caase Is it
lawful for any sntgect, nitbout special cammi}-
sion, to ami or draw together any troop or
companies of soldicis, or to mnke any gcnttal
collections of tnoney of any of hii msjeUj's
subjects, though with their cotiseut.
Neither, in (be third place, is hii aisj«»W
armed only with his primitive prerognure «
Ge.erulissimo and Commander io Chief, thM
none can advance towards tbe enemy, flniB
lie giiei the si^al, nor in other msouer tbu
urcording lo bis direction; but alio with kH
othe> powm requisite for the full necotion of
nil till, ga incident to so high a place, u •'" *
times lit danger as of uctual war. Tlie >Il*Hr
01 each lou.i ty, who is but his msjes^s dcpnij,
be hath Ibeui'iM coHiitatia: and therc6re _>(
must needs fullow, that the pM« rrgai is m
himself,.
My birds, not to burn dnj-lifht longer, »
mu-tni&ls lie granted t»Hl in ifiis bt»ineM ol
Defence, tbe lujutma potaiat, a iohereni B
HI} STATE TRIALS, ISCamwL
hu atfyatj, a« ptut of 1m crawn and Unt^j
dignitj. So that as tlte care and prwifion ul
tb« Law of EDgland exteodi, ia tbe fint place,
to foraign defence; and, tec<>ndly, laja tbe
burden upon all; dod. for ou((ht 1 have to %tj
agauttit.itmaketb tbei|DaDMjofaach dmh*
eitare tbe rule whereby thk harden ii ro ba
eniallj proftortionad upon each penon : So
lUcwiie hath it, in tba tliird pUcr, made his
maicB^ tote Judge of danger* trott Girvi^en,
and wheo aod botr tbe eatoe arete* bepre-
Tantcd ; and, to come nearer, hatli ^Ten him
power by Writ uader tlie great teal of England,
to cocnnMUid the iobabitaaU of each county
to proTide Sfaipping lor the Defence of ihe
kiDfdoiM, and may by law compel tbe doinf
thereof.
So, mi tordi, ai I >tiU conceive, (he quettion
will not be A ptnona, in wIkmb Ibe ' guprema
' Puteitai' of (iTiaii the aucborities or powers
to tbe Sheriff, whicb are uiantioned in tbia
writ, doth lie, for that is in tbe kiogi Buc^br
quettioD it only de mado, by what mediuia ur
inelhod tbi eapnine power, whicb ia fn hii
majesty, doth infuse and let u« itietf into 'this
particular; and whether or do in Uns cbm
Koch of ibeBi have been ued, as hare rightly
accomniodated and applied this power unto
ihii Writ in the intended way of Deftnce :
for Ibe law oF Eoglaad. fcr Uie applyng of
that Snpreme Power which it hath tattled in
fait meaty to ibc particulMr eautei and ocea-
tions,hatb set down a method and knowa ndcs,
which are necessarily to h« observed.
la bis majesty there is a twofiild power,
GobnJHt or potetlu imierna or Halaralm, aiid
exUran or Juatii, wbtcb by all tbe Judgn of
England, 8 Bic. 3, h. 11, it npreianl ' per
' Toluntaieio regis ia camera,' and ' TolOntatem
' re^s per legem.'
My lords, (be forms and miet of law aiv not
obsenad in [bis case; ibe lupreme power lut
working per meAi, it remaiat ttill id himjrifa*
■ volutilas tUgit interna,' and operates not to
the good and relief tif tbe subject that stndetb
in need. To instanre: hit majesty it the
Fountain of bouatv; but a grant orlaaris nilb-
out leuers patent traoslers no (state oat of the
kinb nor by Ucten patent, bat by sach worils
as Ae law halfa praaciibed. His majesty is the
Fountain ol Justica; aad tbouub all jnilice
which it daae wiihin tbe reakn fiowa from this
fountain, yet it mast ma in certain aad known
channel). An Anae in ihe Kine'r-Brnch, or
aa Appeal of Deaih ia the Canmon-Plent, are
• ci>raia non Judice,' ihongb tt^ Writ he l>y bis
majesty's conmui lid; bntsoof Ibeterer^ jurv-
dictions of evtry coart. The josBre whereby
all felons aod traitota era put to death, pro-
eeedi from bis majet^ ; but if a Writ of exe-
c|ition of a traitor Of a Telon be awarded by hit
mMCtty without Appeal or Imbeiinvat pir-
ceSin%,an Appealof Death will lie by the heir
against Ihe eiecaiionCT. If the proecsa be lenl
aad ifl a rixbt «oan, yet I coaceive that his
mqatty aloac, witboat aaaistanea ofthe Jad[ei
afOmeoitn, caMat|iae Jadgnmt. 1 kwow
IM7.— w Ike COtt (ifSk^.Mm^. [869
that kiag Jofaa, Henry 3, and other kinm bavai
sue in th« KingVBench and in the Eidicquerr
but, for ought ujpenit, tbey were aMisted fay
thvir juices: Thia I ground upon iba horit
Case < Rich. S, to. 10, 11, where the pai^ ia
III laake fine and ransom at tbe kiag's will aad
pleasore. This Fine by the opiiiiun of the
Judgea of Englnnd, niasl tie lei by the JndfM
before whom the partywat convicted, and caw*
not be trt by the hiag. The woidt of ihr
Book are tbui : > In Termtab ei non per lagea
' per te ia Camera sua, oec alitcr coram «f,
' iiisi per Jasticiariot tucn, et buc eat voLintaa
* regit, tc(iicei per juMieiariaa ttiOs et per lapm
' luatn,' to do It.
And as wiibaut ibc aasialaace of hia Judpat
who arc bit settled conisel at law, his majesty
applies not hit laws and justice in many case*}
neitlier it this snScitnl to do it without tba
asaistaace of his Great Council in parliankenb
If an erroneous Jodgioent wa* given before lb*
statue of *7 Eih. in tbe KingVbencb, tte
kiiig ciiuld not relieve bis pievid aubjccl any
way but hv .Writ nf Errnr m parliiuneoi : nei-
ther can aa out uf parliament alter Ibe ebl
laws, or make new, or make any NatuiaJii^
lioDs or LrgilimBtioni, aor do tnine other
things ; and yet is the parliament his majet-
ty's Court too, aa well a* other his Count af
Justice: it ia hit isqesty' that gives lift and-
being to it, for he only tuouaoiu, cooiiauesand
diMolves ii,' and he b^ his le vtvt eiriivent all
the acli'>M in it ; and after the diasolutioa of
it, by supporting his courts of justice, he keepa
tiiem itifl ajite, by poitinc them in execution.
And alibnngfa in ibe Writ of Waste, and iw
sraiie oiber writ^ it is called * Commune Cos-
< Biliura Kegfii,' in reipect that the whole king-
dom IS representatively there; and, sccondty,
that tli« wiioie liiigdii» have access thither m
nil (hing* tliat MDCcrn them, olhci court*
afioldiiig relief bat io s,ieciul case*; and,
thirdly, in respect that tbe whole kingdom it-
ioterested in, and receives b«De6t by tbe law*
and ibetts ifaere potscd: Y(t it is ' Concilium
' lUgni' nn otberwisc than tbe Common Jaw '
is ' Lrx 1'einc,' ihit it ' pvr mudnia Kcgis,'
nhnu It i<, if 1 iiwy to term it, ia a great part,
cvrn In poim of inltrctt, as he ititie brad of lb»
Coronionweallh, ami wliotr it is.wholly in imtt
for the good of ibe whole body of the raalm ;
foi lie alone is Iruited wth ihe executioa of it.
Tbe pariiflRient in the king's court, aad there-
tore m the Summons ibe kmj calisit ■ pnrlia-
' menium nutirum.' So tlie ReLurns af the
knighis and hurgetaes, ■ Quod sint ad ratlia-
■ nullum Domiei Uc)^.' Fleta. hb. 2, cap. S,
■ Habtt Kri cnriiun suam in cOocil'O auo in
' paHiaaieeris suii ;' and tliertfoie ihe plead-
inia there awciaoily were Hsnallv wnnt to be>
(in for tbe most pa I, 'Queritar Domino lUgi;*
ul Heiirions hy piivair ptTvint, ' Snpplicavit
' Donino Itagi,' tlioa|h fi»r relief against others,
Inqniriiiiiina and ymirt Jiu^ rcttiraabie there
' Coram Dainino Reiie et Consiba
hy HifiBitl Precedents in the
of Sdw. the licaMl E^. tW
appears b
tneiBof'
-W5] STATE TRIALS, ISCrauuI. IIJ37.— !
tnd's tinie, botb in the Tower, and nuaj Cases
Bdjourned into the KingVBencb.
The PsjenM passed bj BUihority of parlia-
ment, end likewise the acU of pirllBment, had
andently so miichorthe Ling's name aiid style
in Ihem, that u it appears in the Prince's Case
in tire 81I1 report, it was a bard matter, other-
wise tlinn by circuoiiunces, to linow wtietber
ibej hnd any thing of the parliament ia ihem
or not. Aad from tlioac times eien until now, '
the allernlian is nothing in substance, fbr the
tea for tlie most part are tlios ; ' It is Fiincted
* by our ioiereign lord the Vin^ with the
' assent of the lords tpiritual and temporal,
* and comoian).' The king both then and ttill
it part agent, the rest are but ronientiente*.
My Lords, to apply all to ihe Case in ques-
tion ; by the Cnies before cited it appears, that
nbet (vas done in pariianient by tlie tan phrase
Mvd dialect, is said ID be done by the Iting ; for
as tbrCirilians say of the senate, that it Is
* Par< corporis Cajsaris,' so we of the Par-
liament, that it Is ' Pars corporis Regis," The
maiia of Jnttininn, * Quod prtncipi placet
' lesis vim babel,' is agreed by Bracton and
all liie civilian). And yet both he and many
of them say, thst tliose must pass the Se-
nate, and thcmgh done in the senate, yet tbcy
be plaeita prinripii. So it i>, allliou|th when
we speak ut iiulfut, we say fines arc said to
be «et by the king's court ; wt the law, wlien ii
sailb that tbey be done and set, Mith they be
done and let by tbc kin|. By the aiune reason
therefore, though n hen we speak tit valgut,
we bay such a Ihinj; is done by the parliameni,
yet in the legal account these are cfone by the
kiog: the Medium, or way of doing of tliem, is
with tlie nssiitanceor cmueut of hit groat Coun-
cil in parliament.
The setxind ihing which I obtene is this ;
By the case before cited it nppeaia, ihat witri-
out the Htsittanoe in pitrliameiit, liis majetij
cannot in many caset cummuiiieaie either his
justice or his power uoio Itis subjecti. — Hence,
thirdly, it iiccessnnly folioiks, ai I conceive,
that the kingly dignity doth mnst appear and
manileiL iiselr there ; n hich wat the opinion of
all the Judges of En);lanil, dac:lared in a parlia-
ment ^4 Hen. 8 , •« appenn by Crompton's
Juritdicl. fo. 10, who by tha king's command-
mont mcetiOi! tot;etber about point of Priiile^e
of ParUnmeni, the king aftrrwardi in declaring
' of their'Opinioas, doth it in part of the Cote in
these words : ' Further, We hr itarnrmpd by our
' Judges, tbaft we at no time itand to biglily in
' our estate royifl, at in time of parliament,
'.wherein we at Head, and ynu at Memt>er->,
■ are conjoined and knit logetber In one body
■ poliiir.' Which Declaraiion uf it shews like-
-witc iliut It wai the kin^^'s own opinion, that be
at no time stood to h^Juy in hi»«tt(it8, as in
ihe time of parliament.
- It appears not by the R«cord, that thitWrit,
which giveth power to tell and alter the pro-
perly of tli« Defendant'^ Goods, itsned mm
bis majesty sittini^ m hit eiUte toyal in porlift-
■<3it, and therefore cannot be miended by
■The King agauMJoktItampdeti,a^[^ai
your lordships and the coart so to dok If
ilierefwc it hnth issoeil fratn his miijesiy In the
Chancery, otherwise than in partiaroeui, where
he standi lu the height of sovereignty vti per-
fection, that be bath not so' mucli as ft paste
noctrt; the quehtion is, Whether It be emr*
neously isstifd, yea or 119 }
My Lords, I navB sow put the catc, •'bich
altfaough iu this paiticBlar case it coitcems the
Defendant only ; yet in consequence, as it ap-
pean, it concerns both, hit majesty and the
whole ttale, and that In matters of tlie greatcit
and hightst nature postible. Hit majosiy it
concerned in tiic way and manner of execution
of the highest and greatest inist which the Ikir
hath rtposed in liim, the Safety and Preterva*
[ion of the' Khigdnm; theSubjecl itconcemed
in ihar, wherein he is mostteitdar, in the PrO'
perty of what he hath.
My Lords, the greatness and weight of the
Case puts me in this dilemma: nut to or^ue it,
wertf 10 deny that liiU submission to the com-
mand of tome of your lordships that are sitting
in tbe Court, neiilier sluuld I do my dieut thai
sertice nhich lie eiperts. If I proceed, tbe
Case is too weighty and too great fur me to
ar^e. Dm I know the safest way is obedience,
and thai the Court ranaot expect much from
me. Having tberclore already put the cate,
1 will go on in tbe nf xt place to stale ii, and
afierwardt to ar^e it.
Tlie Que~tton l)einR concerning the VathJity
of the conima.id 10 'he Wriis, which extends vt
far Tu 10 ih"- aUertni; of the Pmp*«y of tbe
Subjects Giiodii withi>ut ibeir consent; and
yei tliis being for a tlnng w> necessary ■• the
Defence of the kii>gdoii> both al land and tnj
for the ends ot istaing foitli of the Wtn are,
' Pro di-feiisione retni, tuition* maris, tecuri-
' tate subditoruni, talva cunduciione navium,'
both outward and inward. In ibe stating of
this great question, I wilfin the Grti place en-
deiirour to |iretent your lordsliips thoae known
and undoubted ways and means, whereby the
law hath provided tor tbe Defence of tbe realm
botb at laud and tea, without tbe way in tbe
Writ.
The Em whereof it by Tenure of Lands.
The services which hereby eruw due are of two
sorts ; Service in Kmd, which tends inmedi-
iteiytoacCKtll
MOf «
ire for land'tt
The second aretuch as supply his m^etty Ibf
that purpose.
The secnnd way it, those many Preragatiin
which the law haih settled in the Croon, and
made peculiar uuto it fiir the Defence of th*
kinedom in Keneral.
1 he third is, tiie partiealar Supplica of Mo-
ney for the Defence of the Sea alone in timei
of danger, both ordlaary and eitraonliiury,
the thing principally intended in tbe Wnt.
These, my lords, will be the materials, wben>
upon aAetwards I ihall state the QueMion.
In that of Tenure, I sbftti b^n trith'tba
service, and thme which tend mmediuely te
•ctioD ia tiiuM of War. Tlw Uafi of tUi
, Cioo^^lc
866] ' STATE TBUIS, IS CbabimI
leilot, B> they uo the he«d of the Cominon-
.wMlcd ID geiicmt, to are iLejr tlie hetwl and
TOOt firtiin whence all Tenure* spring ; lor n«
our Booki agceo, all the Uadi within the realm
■re beld inediacelj ur imiaedintel; of the
crowQ. Ai [li^refore the Uw hath appropri-
Erimted Die Derence of the kint;do<n to ihe
mffl tliereof, so hath it, as one uf the principal
ynji for eRectinr thereof, inMted tbem -witii
the rcMrvaUoa of such Tenures, nsmtght serve
for tbat porpose.
Amoopt which, intending first to speak of
Lind-Semce, I will b^n with the Tenures
of Knigbts-Service. Every jnaa tlmt hdds by
this service, from a whole Knigbt's Fee to nny
)Wt thereof; oDght lo find a nun coroplelcly
aimed far the war. Neither doth the lindinE
•f amM SRtiify this Teoure : for h« that holds
by a. whale ifnighl's Fee, ought to be 40 days
in the service i and he that holds by a moieiy
of* Knight's fee 30 days; and go in propor-
lioa. In the Books of^ibe Knights Fee, of
Hen. 3, Edw. 1, and Hen. gth'a times, in ihe
fichequer, it appean, that there were many
thouMod Knights Fee* held of the crown. And
in the Red Book it is said, that it w«s ' in
' ore ooniuin,' that in the Conqueror's time
there were thirty thousand hetdafhimi some
•ioce have computed them to thfeesoore thoa-
nnd, which perhaps ma^ be with the additinn
•f tiiose that were held of comaon persons,
.which axe net of those upon which I shall
SerriceB are reserved by the king,
fore they were net instituted oaly for the De-
fence of the realm, but maybe exacted for fo-
Teign wars, or othcr-wbere for his majesty's
peculiar service, as he shall think fit: which
may be inferred both from the name which
our old Books and Deed* atyle this Service by,
when due t« the crown, that is, ■ forinsecutn
coadly, from the use tbareof.
cayne, Tbobuie, and Irelaud, as appear* by
tbe Hed Book, and many cases put together in
the Institutes, in the Chapter of Escuage.
To the first Objection of the Name, tlie An-
•wer is dear; for aotiently, when tliose that
Iteld immediately of the crown by this service,
did infeoS' others of the land so held, desiring
to free tbeniselves of the burden of ihis ser-
vice, beMdes the service which they reserved to
themselves, ihey likewise commonly in tbe con-
Teyance, made provision for their own acquittal
•gainst the kin^, and the feoffee took the whole
burden thereof upon himself: and therefore in
the Book of Knights Fees of Hen, S'* time, in
aomany hundred certiQcates of those that held
imniediaiely of tbe king, Wdlium London of
Wilts certifies this; 'Quod noUum militem
* babco feofamm, sed dsbeo defendere feodum
' meum per servitiura corporis mei.' Of this
nature are three m: four others. All tbe rest
WUr certifies, by hoir many knights fee* he
bokls: tbem likewise he certifies that 'Dafendit,'
kc- uftfaakiii|, by sucbaadiutb'MiltteiFeo-
VdL, 111,
l«37.— M.«k Cue ^a^Jftmy. [86G
■ fntos.' And in these deeds of FeoSnent,
after the roservatinn to the feoflor, was this
clause : ' et fiiciend' inde,' sooietimes ' Forin-
■ secum servitiuin,' sumetimes ■ Regale servi-
■ tiuin.' Bract. Hb. 2. fol. 36, 37. and Fleta,
lib. 3. cap. 1*. SHith, that it is called, • Regale
' servitium, quia est servitiuni Domini Regis ;'
and by tliem ' Reijsle servitium,' and ' servi-
' lium Domini Ri^is,' are oil one and tha
same thing. To titat therefore I ^lall need to
^ive Qi) fuTiher Buswer. By the same Autboiv
It is called ' Korinsccmn, quia cnpitur fbrii sive
' extra servitium, quod fit domino capital! ;'
and that is tbe meaning of tlie word; and tluit
it is culled ' Forinsecum,' in regard the Servics
is to be done Fori^ tliat is, nut of the kingdom,
is cleared to your lordsliips by these Cases, P.
49Uen. 9. Com. 31. Ed. 1, Rut. 33. Dsrs.
Com. Hill. 33Ed. ],Rot.da. Dors. ComsH,
which we know is to wind a horn wiihio tha
retim, in all those three cues is called 'servi-
' tium Forinsecum Domini Hciis Comagij ;*
and CastJeguard in the county ol Northumbei^
land, at the caitle of Bamburt;li, called * Fu*
' rinsecuRi servitium Domini Itegis.'
To tlie second part of this Objection, that
this service hath been oflen performed bcinnd
sea; for tbe present 1 shall give Answer there-
unto but in part, by telling your lordships with-
out making proof tliereof, that Escosge, which
is all the penalty that lies upon the Tenant luT
his default caniKit he aaseased but in psrlia-
ment; which, if it be so, proves that the king
cauDot command this service, otherwise than
for the good nnd derence of the realm, in re-
gard that if it be otherwise, no Escusge can be
aaiesMd without consent in parliament ; wbiuh
by intrndment, according to the good the king-
dom is likely tn receive by tbe service, will pro-
portioitabty lessen or increase the Eicuage.
My Lords, That this Service was instituted
for the Defence of the realm, appears by lb«
care the law hath always taken for tha mcrease
and preservation uf these services; so that if
the lord purchase part of the land, yet th«
•bole service remains : which being entire,
and to be done by tbe body of « man, in that
of being a staward or bailiff', or other privat«
service, makes an extinguishment of the whole.
Tbe Authoritiet in point are many ; the Sta-
tute of Mortmaine T Ed. 1, the mischief by
conveying lands to houses of religion is there
expressed ta be, * Quod servitia que ex hujus-
' modi feodis debentur, et qua ad defensio'
' nem regni ah initio provi^a fueruni, indebite
' subtrahantur.' And beside* 't)ie dednration
that they are for the Delenceof the realm, that
Statute likewise promises for the increase of
ilietn; for if the lord enters i^ot within a year
and a dny after the Feoffment, thp king is to
enter ; and as the worda oi the Statute are
' alios inde feolFavimus per certa serritia iiobia
■ inde ad defensionem Hegni nnstri focienda,'
the words are observable, ' gier servitia nubia
' inde faciends;' for though the service be to
be done to tbe kiiw, it isiu be done ' addcfeii-
' sionem regni.' Tbi* expJain* tbe Cbartfr uf
S67] ST^TE TRIALS, ISChaiicesI. )fl37.
lien. 1, inrollrd in tlie Red Bonk >d the Ex-
clHiqupr, and cited m Mat. Paris, in the Unt
leaf of Ueii, !'■ reign ; where the ling trees
Kniglits-Service LuiidB from all Gelds and
taxes ; ih«i lieing eased of this bordeo, ' apti
' fenxiuiiera regiii mti.' In tbc Black Book in
ibe Exclitquer, fa. 3. Scutitge is tims defined,
* ot invenieiuc in regniim hiistium niachina-
' tione,' It is Ilieii due: see Brncton in hit se-
cond book fol. SQ and 3r, that ihry are *o,
* Propter exercituni et.Pati'ts tuitiooem,' and
to be performed ' certis lemporibus eum casus
' et nece:>9itas evenerit.' Bract, fol, 162. ' Les
' fees de clinire fuerunt purveansnd defence
< de noire realme.' Tlie Bonks are eipKst,
the S5 lien. 0, H. 8 R. foi. 105. Talbot's case,
6 Rrp. fill. 3. Bri^erton'i case, In^tiiut. p!. 103.
Co. Preface io tlie ninth Report.
For the tiiriher deaiiii^ of wliat is said al-
ready, and what I am to add, it is observable,
Uiat (hcM Setrices are nut created ' ex pro»i-
' visionc hoiuinum,' but ' ex proviiione leps ;'
fiir as it i* in 33 lien. 6, T. and sijLth Rep. fol. 7.
Wheeler's Case, if the tii^ grant! land with-
out roerring any service at -all, or • absque
' aliquQ jnde reddendo,' the Patentee shall hold
tlic knti by knightt-Service in eapite. The
Book of a* Ed. 3, 65. Stamford Frerojat. fol..
JO. Iiistitut. pi. 73, it is said Che hrst kings of
this rtahn had all the land of it in iheir own
hiindt ; which appears likewise by this, chnt all
the hinds witliiii the kin^jdom are held inedmtely
oi iiomiidiatcly of the cronn. lo the trans-
ferring these lands to the several inhnbitanis,
tve see, fa^ the cntes before cited, that tbe cace
and provision of the law waa, that all should
by tenure of the crown be miide liable to the
defence of tho kingdom. I shall biielly tbere-
tbrc show how the kin^s of this realm liHve
eiLCcitted ihe trust foi ilie Dt-lcnce of both
land and sea.
And tint, a little further to prosecute the
Laiul-Service, becaate (be Tenure by Knights-
Service lies the tenant only li> tbrty days sar-
lice, and that for the Defence of the realm
•uly in genital ; they therefore reserved divers
Qtlier tenures for particuhir and certain ks-
vices ; as Graud-Seiieantlei, some nhereof, oi
in tin Institutes, ful. 106. is ohserred, were
for Krticeoi huDour in time* of peace; aiid
•onie tor military service, of •rluch last sort, as
sppeiirs in the Book of Serjeanties in the Ex-
chequer, and mail; rolls of them in the "Tally-
Office, were very many; some »bereof *ere to
carry the kiog's banner, some to summoas the
tenants ■ od exerciium,' (ome to be of the
vaiii;uard, some of the rear ; some to serve in
\Vulet, Eoine in Sootfamd, lome ' infra qua-
' tiior innriV some ' iufra Cinque Partus An-
* eli^ '^ Of these are Services of all sorts ne-
i;«ssHry i)T an anny; and in rexpect of the
Inullitude of these military Seijesuties over
Mhus, as forgettiiiE: then, Biit. fol, 104. in his
ileliBition of Grand- Seijcaaty, saith, thatihey
an ' AmleleiKe del royalniB ;' and fUtslibi
— Tie King against JoJut Hm^en, aq. [90t
' mm respiciuiit et Patric defensionem.' Bc^
sides the Grand-Serjetitities, of thisDitureliie-
wis* are the Teniure of Cornage, to pve warn-
ing of the enemies coming into ibe kin|dom,
and the I'enures by Castle-Guard: these by
Littleton were 11,000, to defend the Cul)«t
nhen the enemy enters the realm, within finit
and bulwarks (if the realm. Mr, Camden, p.
515, obseriei, there vrere l,11fiin Henry ftft
time, whereof a great pan, and especialljr «>el>
as were upon the sea-cooals and fivntien of
Scotland and Wales, the places uf greatcM
danger, were tlie king's. And be^des these
Grand-Serjeanties that were M bepcriwuwd
by>tlie bodies of men, there are Petty-Se^eu-
ties for finding of Armour of all soitsfiir the
My Lords, That the former kings da) eie-
eute this power of Teiiores fcr the Defence rf
the realm, accoiding to the trust the lawrtpgs-
edin them, appears forther in this, that in [he
places of greatest danger there ever were moft
of them. All along thesexoastsof KenCwid
Sussex, nearest of all octter* to France, are tlte
Cinquc-Portt, which for their Sca-ServKe bin
all tlie jurisdjctioR within tberaKlves, that the
jnliahiiants^'fin- weakening tliese parts, mifhl
not -be cDmpellett to trarel out nf Ibem for any
matters of justice, and diven other prTnlF{e»;
botli lo invite the people to live there, aod tD
eacourage tiiem to the Defence of thnsa p»™.
And Dovn Castle, the Key of the Kingdota,
ns of greatest consequence, so hath it tW
Tenures by Castk-Ouaid, wanting very fcw,
besides divers Tesures for the repairii^ nf ibe
Cottle ; whicb appcm by the iUcord nIM
the Quire of Dover, remainiug in the Eiche-
qner ; which tliai it is a Record, and detI^
minei the service of the Cinqne-Perti, u
Doomsday-Book doth the Tenures of the sa-
tient demesne, appears in Comm' i7 Edii. 1|
Rot. 35, and by another Record added tu llM
Quireof Dover, 30 Edw. 4, it likewise appeal^
that in the time of war the king is to oisuitain
in that Castle, 1,000 fool, and 100 horM
Neat, 10 come to the borden of Scotland, thue
we find Ihe ftanchisement of tha bishopric of
Durham, instituted likewise for that p>"1<^
for the defence of thnic parts; which Williui
tbe Conqueror, as MalcnF. fb. 157, observes,
first made a CoiHity Palatine; and Wslthsr
hishap thereof, ' Oucem pariler et Episcopum,
' ut refheuarctr Kebellionem geniii glndio, d
' refbrroarec mores eloquio.' And besidt' "
this, if) all the counties of Cumberland, Nor-
tbumberleod, and Westmorehiad, are mote
such Tenure* fiir tlie Defence of the realo^
than in-BDy of the Inland Counliel, and tlmia
likewise most proper for bodies. Com. P»-
31 Edw. 1, Rot. S3. ItiilherefoundbylDiloi-
silioa retnrned into tbe Exchequer out of pai^
liament, tliat every lord of a town within the
county of Northumboifand, held by Cornil*
when the Scots entered the r^lm. Mr. Cani-
den in his Bntanoia, p. TW and 799, mentirw-
iHg the greatinUinbCTof Petty-Barooies sm
•G9] STATE TRIAIfi, 13 Ch«le» I.
S7, M»d instil, fol, 73, say w^re iDStiMted for
the lltitiice of ihe realiD ; ob^neB hne like-
wise the poticj'uf the law, aiid iik«ni>e io tb«
manj Seijcantiet there, in Rdviuicrng <i( tJie
king's army, lo be of Ihe vanguard, and in the
retreat in tlie rear, thuje peDpla bru knowing
ibe nji and postages of the country.
Whence, niy l^rds, when we cume to the
Marches of Wales, there wetind another Coun-
ty [^latinc, I iDenn thnC of Cheater, bdJ ihe
Gwe of Chester and Lis barons to oppose the
Wdsh iavasions 4ipan these Marcbei; besides
the like serrices, us upon the bortlert of Scoc-
IwkI, there were likewise nutny Lords Marchers
of several barooies, who bad admiiiiau-aiiun uf
•lljoiuce within themselves, ' secundura legem
'Marchia:' ami for their. service to be done
sgainit the Webb, tbcy hnd two speciiil Privi-
l%cs, that ii, the third peony of all ihe Spoiis
in the war, as was atljudged in parlinment, the
90 £dw. 1, Banc Regis Itot. 193, in ttatRrMt
Cote between the raria of Glocetter vori Here-
ford, and in the Parliaiaeut Beok, so £dw. 1.
And, secondly, nil ilie Prisoners that they took
ia the w^rs, ' per coniuetudinem Marchia,'
bdonged to the taken of tbem. Trin, 95 £d.
1, Aot. Qa, Co. Ri^r de Kownwell, ' in |)at-
< libM Montgomery, in guerra WiJlix,' uSEd.
1, Ittd taken three Welsh priAoners ; aud b«-
OUise, by the king's conumuid, ihey vete re-
IcMed el' their imprisonment, it it tliereadjudK*
fd, that the king should pay hiia 40^ in recom-
panae tbereofl And so it was adjudged. Com'
Hilt. 93 Bdw. 1, Itot. 11, dors.
' Mj Ijjrds, Hit mnJEsty is in the actual po9-
session of theae Military Scrrices. by takinj;
the proGta of Wards, JUarria^es, Releases, Li-
cences, Forfeitures for Alienations, and primer
•rina, as Iruits of ibem. — That tlie prulits uf
■^VanisaDdMazTiagesare tobe spent in wans,
for the Delence of ihe realm, as well as for the
biiiiging up the Ward, the Booka are, 35 Hen.
6, ■*!, Brit. lea. That the king receives (he
froGls, because be ia not able to do the service,
r the king's Ward was .within age, when the
(EBaBts were siuninoned ad tstreitiim, be paid
BO EsciMge, as is adjudKed, M. 30, £dw. 1,
Sot, d,£c 80, Comm' and M, 33 Edw. 1, Br.
iiroLi So it is fur Relielii and Licences ; and
Forfoiturci of Alienation of the king's Tenant
without big canseDI might not be altered ; and
Sir erufur Muin, the king was to rsceive the
profits till the Tenant, by his Homage, had as-
^lUBd the king of his service; the tunimons al-
jTfup eonunanding him lo be at the place of
;Teiideivous, ' in £de ct bomngio quibus nobis
* tenemiDi.' All these things being but Fruits
that fiill from these military services,
. My Lords, No.w to come to the Sea-Service ;
the care and eiecutioa of ihit trust by Tenure*,
was extended likewise to the Defence of the
Ma. The town of Lewis in Sussex holds b*
this service, ' quod si rei ad mare cuitodicoil*
' tnos mittere vuluiuei,' they paid so much
money, ' et hos babebant qui in navibus arma
< ctutodiebant.' This, my lords, is in Dooms-
day-Book; Id Colcb^t^r CY^ry.huiue Uf pay
' ad vicium ■oldior' regis, ad-ci'
«rriB vrl morn,' Warwick, ' Si
e cuntra homes ibat,' the lonu
ir buulswains. Salisbury, then In
plains the word, be ' ministeros nauticos.'
Gtoce^Ei'r, and oiber places t>uch a weigitt of
iruii, 'ad clavt-s unvium regis.' Otbcis, lo
find horses tu carry annonr nod neipuni to
the ships. My lordi, of litis nature are many
in that Book, which pariicuhirly lo intfniion, to-
gain time,.! wili omit.
That the Tenure, of i jis kind ofter the Cm--
queror's time, cnulinued in use, and were well
known, appears by the Kegiaier ft. •{, wliere
amongst utiicr services, i« this ol Shippin; also
instanced in these uords: 'Quod clumatleiier*
' de nobis per Irberum servitiuin invvniemli no-
' bis qumque nuvc» per annual' servi'tmm.' In
the Iter-Roll uf .Kiaex, 13 Ed. 1, Itot. 7> il is
presented that lU io>vi> of ihluldoo, ' tenet per.
' Serjeantiaui iiiveniendi utium navcn cpiBaitu-
' cuoque rvx nectiue hahueiit ire rel miilei*
' propter iiegntiuin rtgai.' And frouiibe time
tliey cnme to ihc place of their rendnvous, tii
liny in the service forty days, ' sunipubus prii-
* priis.' And being tikcrc presented, ihu thry
made Oeliiuli at the \VeUh war, they fdtHtd they
So, fay Lords, in tlic Boob ot SeijmntieB of
Ednard I'sliuu, in Kent, tlic lowK of KiUii^
lioroe is to find ope .Ship ; wild in the county
of Berks, Fulke Caudry holds the manor of
Fadwfirth, ■ per serjcaniioai iuveniendi ^eni-
' enteui,' to perform Sea-Setvioe, Bract. «0,
S Ed. a. Rot. 40, ^ViUilUll Uicr, in the count/
of Sussex, to find a certain proportion of CutO'
age. Iter Caniia>, SI Edw. 1, U<it,46, Solo*
mon de Campis holds ' per acijeantiwa leaen*
' di caput domini regis,' when be is at sen, ' m
' necesse iuerit i' and so Rot. .W, another in
Ihe snme Iter-Roll. The Cinque Purls and
their members are lo 6iid 90 men, and a inns-
ter, ' bene armntos et bene arialiis ;' from the
lime that they come to their r^ndeivuus, Ihejr
are to comiuue in ibe service 15 days, at iheir
own chiii^e, and altenirardsso lone ai llie king
picaicih ; but alter the 15 day., the king is to
pay the master Gi^. a day, nud the rest Sd. a
day Ibr their wages. This Service appears by
the Record of the Uuire of Dover helure-iiieii--
tioned, and tlia Patent Bolt T lien. 7, both
which RecurdiiiBply, that thisStn'tceof their*
cannot be exacted, otiierwise thaa fur ihe De-
fence of ttie Sea ; for it cannot be demanded
but once iq a year, nor tbenneithcr, ' nisi.ne-
' cesse fueril.' Pari. Pet. 1 Edw. 3, Rot, 4.
the Bnrnnsof thePotts,ini:onsiderationof thi*
Sea-Service, pray ■ confirmation of their Libera
lies, ' pro salvalioue dicli Navigii et Regni j*
and commonly when ihe Land-Service wi»
summoned, tlxse were likewise tunimoiuNl lo
ilie some service ntsea,asappenrt by ihe Close
Rolls, 98 Edw. 1, m. 15. 31 Eilw. 1, and 34
Edw. 1, m. 15, 16. Id all which yean the
l^ad-Serii'ice was nimmoiied for Scotliuid, and
%7I j STATE TRIALS, 15 Charlss I. 1637.
tbe luinmoiis both for the ona and the other
ratt ID ibe Mine wonli, commanding them to
be at the placr, ' cum toto servicii> vcstro qaod
' nobi* debcti%' whith gliews il to be a Service
by Tenure. Thai these services of theirs are
fur the Defence of the renlni, and likewise <haL
there Are innay other of thr like nature besides
these, which by ■ Miperfici.il reading of two or
three Iter-Rolls, I have cited, ap|>ear> by ihe
Patliament-Roll, 19 Ed. 3, pars 1, M. 11,
where it is doclareit in these words, Thnl the
Cinque Porta and other great tovrni anit havens
are fraochiscd, ' pur estre et mure inler noas
' et aliens,' if it shall fall out that they shall
endeavour, ■ naCre enter et asauy etsunt lenu)
• a ceo faire." My Lords, a fiiUer Dednration
than this there cannot be, that both the ports,
1 the
aud havens, and sea-tonn^ are bound
ser»icE of Shipping, for the esiraordinarj De-
fence of the realni, as well as the ordinarv.
I have now done with the Servise in kind ;
and because these which imtnediaiely tend to
action alone, were not sufficient to defend the
realm ; and this in ihe frame and first can^tilu-
tion oPcbe Commonwealth being foreseen, and
that the land, < Fundus Regni,' themoFt viable
and constant Supplies of our Wants, was be«t
able to supply this likewise ; therefore be-
side* them, thera were divers other Tenures
cre-.ited for that purpose. Those which I am
»txt to speak of, are such as supply his nm-
jesty with Money for that purpose.
In the Bliick Book in the Exchequer, lib. 1.
cnp. 7,ilis laid, that in pnrliculur 'Regni statu
' ad stipendia et donativ^ Militum et nlia ne-
< cessaria et cast^lis,' uid other lanHs ■ in qui-
' bus Bgriculturanon exercehatur pecunia nu-
' meratH successebat.' It might from hence be
coloiirahly inferred, thnt iu respect ' ex provi-
' sione I>^s,' upon the king's pauin|; of lands,
a Tenure for Knights Service for the DeTejice
of the realm was to be reserved ; that in case
upon such grants, Rents only, wiihout any
such Tenure, were reserved, jet that Money
sbuuld be impioyed for Soldiers Wages, and
Btlier necessary affairs of the Common wealth,
' ad stipendia Militum et alin necessarta,' But
not to press this further, it is plain, that ail Dien
within the kingdum were not equally inherit-
able, either to Ina body or propriety of lands
or goods, but that (here are deajeea and ranks,
and each differing frnm other m all thrse. 1.
Villains. S. Freeholders, either by Knights
Service, or Free Soca^. 3, Tenants of an-
cient demesce, and that held by Burgage within
cities and borough towns.
1. For the Villain, we know, that as to his
lord he had freedom in neither; in respect of
hit body, he could not ' ire quo voluit;' put the
lord ai his will might imprison him, ttna in re-
spect «f his land and goods he might tax lum
* lie haut et de bass.'
8. The Freriiuldets, Ihe greatest part of the
realm, «lwayi had an abioluie freedom In them
both.
The third sort, and thnse are the Tenants in
■nciiM DemMue and Burthen, tbey bad an
-TielEagagaiattJaka Banpiat, aq. \ifli
absolole freedom in their Persons, but qualified
the ether of Propaty, not laiaUe at tbs
II, a» Villains, but for the Defence and other
necessary affaii^ of the realm, they might ba
taxed without consent in parliameot. My
Lords, that these had a divided estate from
other free tenants, ii clear. And first, for Te-
nants in ancient Demesne: it is to be qaes-
tioned whether such land be ancient De-
words, Whether it be ancient Demesne or Innk
Pee. Dy this it appeareih they have not a
frank and Irse estate, as the others have;
and as all our Books agree, they have no Vikb
in pnrlisment, for they bsv* no voice in the
election of knights, nor ^ay to the eipences of
the Knights tlKit serve id parliament, nor S>^-
diers granted in parliament, Na. Brcv. T9.
and 14. Il is otieo disputed in our Boots,
whether acts of parliament extend to tbeia,
unless diey be especially named ; neither caa
they sue at common-Uw locany thing that con-
cerns the Freehold, but only by a Writ of fi^
close within themselves. And th errors Bni>-
too, fo. 809. calls than * ViUanos Ptivilepsiot.'
The same it is of Burgesses within dtiessrd
borough : and therefere the Statute af Mtrton
makes it a dispareitement for the loid to niny
his Ward, '-vilhinis «t eliis sicut Burgeniibas,'
Na. Br. 7, and other baohs. No Auise* "ill
lie for such Lands, but they ure impleadaUs
without original writ, by a Bill of fr«sh fercsi
and ss a. chattel, they may devisa tbcir land.
By the Statute 1 Ed. S, ' de laibtihus,' fe»
Mich land and ancient demesne, no niu it
compellable to take the Order of KniEhtboodi
Much more might be brought in proof of ikii,
My Lords, all our Book* agree, the TeaaaN
in aucient Demesne were to plow and naiwre
the king's lands, beiug his demesne. Id a
Manuscript that I hare seen, the AutbM
Baith, that be hath an ancient Manvtcripl
which saith, ' That the com, aitd other »io.
' tuals, arising hereby, was to store ifaekin^s
< Gsriisons and Cashes ; and coniidering Ih*
■ numbers of those Garrisons, there seinf
■ above 1,000 of them in the king's hand at tha
' Conquest, as appears by DOMOsday-Boak,
' and that those Manor* fi<r tha most part are
■ ereat, and tha greatest part of the Soosge-
' Tenures, till Henry 9'ds time, as appean by
' (he Black Book, (ib. 1. c S3, were to find
< Victtials of all sorts, in kind, for the proviuoi
< of the king's houshold, and were in his (iae
' lamed inui Rents.' Attboogh tliis may seei*
probable, yet because I have not seen the ma-
nuscript, 1 will insist no more upun it.
That for which these, and the Tenures of Bur-
gage in tlie king's cities and boroughs, weM
mentioned in the Tsitiiig of Monies fiir (he M-
cessaryaSairs of the state; that these were an-
ciently telliable without their consent in parUa-
incnt, is so plain and frequeuE in tbeEicbequn-
Rolls, as that I intend to cita nothing in proof
ibercuf; it will be admitted by (ben mat argue
on lb* iHber side. That wbicfa I shall cadM-
fe73] STATETRIAI^, HChaklesI. 1037 in the Que iff Sb^^^ima/. [S7*
Tor die Defence of thr kingdom : which tbeir-
eib, that ihepe was ■Iways a difTereiic* mada
between [tic Profiis arising of the king's Miinor*
nod Lands, ami tliat ubich ro&e b}> Uie Prero-
gative, ciuual and accidental way). My Lords,
1 hate now doDB "itii these.
I'he third naj the law hath provided ibr ihtt
Defence uf the kio|>doin, ia particular Supplies
of Money fnr the Derenee or the Sea alone hi
limes of danger, both ordiixiry mid eitraordi-
Dary; for besides Che Supplies ol Money befbre-
mcocioned, which are to be employed fur tb«
good and defence of the realm in general, oe in
the other coses where ibe la* puttetli the king
to any particular charge for the protection of
the S,ubjecl, it alKBys enables him thereunio,
and yields him particiriar eupplies of money
for the-inainteoance of the charge; so hem the
Courts of Justice, for the preservation of us in
our Highte, are (uppsrted at his charge; and
that is ihe reason wbj he hath M Flues and '
, Che goods of outlawed men in
personal actions. Bract, lib. 3. cap. IS, To. 199.
and Fines for purchasing ofOrii^mal Writs, ■ et
' pro liceatiis concordaiidi^ which, in supposi-
.ion of law, are paid for not proceed! neiirsd
:roubling the court without cnose. The king's
Jualicej who are maintained in their placts at
the king's charge, the«e are the ' vectigarjusti-
* ciar'.' The Defence of the reahn extends it-
self to many particalara of the Church, and of
Religion: and Chereforcin the summons of par-
liament, die cause of Recalling the pariiameilt
is always declAred to be ' Pto defensiotie eccle*
' six AngliB' in particular, as well as ' Totiitt
' Kegoi.' His majesty iherefme h»th tbe Tem-
poralities of Bishopiicks,Kti« wcAnft, a great
prerogative, and that winch patrons have not {
with an addition of tbe First Fruits and TentiM
of chem,and all other EcclesiHsCical Promotions
and Benefices to Henry ihe 8th's time, and
hkewiie the Tithtt of all lands which lie not
within any parish.
For Defence of tlie Land alcme, besides Ao»e
JIf ilitary Services befiire-memioned, the profila
of Wards and Marriages, which, as I have read,
no oUier Cluistian prince hath as a Fniit of
them, ire received fur that purpose. So it it
for the Sea, in Rot. Sco. IQ Ed. S, to. 19,
It is said that the king and his ancestors are
' Domini Morii Anglioani et defensore; eastra<
' bostiuin invasione% ante boc tempus eiis*
' tenCes.' For the sopporting of this Charge
therefore, they have not only had the GramI
Customs of the Mark and Demy-Mark npm
<tie Wool, Wool-Fells and Leather, and the
Prisoge; thst is, one Tun of Wiiie before ihft
mast, and another abaft the mnst of every shipf
which were even due by the Common Law, at
appears hy Che Book of my lord Dyer, 1 Elll.
1135, and sir John Dnvies Reports, fb. 8, el 9,
and implied by Mag. Char. cap. 80, that Met^
chaals may trade ■ per rectas el antiques con-
' suetudiises;' but likewise divers others things
Tour to p>ave is, that dieee were not talliable at
tbe fclHg's will and pleasure, but only fur the
Defence and other necessities of state, Na. Br.
fo. IS. 49 Ed. 3. 3^. They be not tatlubLe,
' da hant el basi,' a« villains are ; and therefore
Bracton, f. 300
' los,' lib. pari.
' Muxilium dare pro necessitate.' Na. Br. U.
• talbabte purpaiid caute.' Rot. Purl. 6E<lw.
3. Comini^oDs to tax cities and boroaEhs, and
ancient draneuie, upon Petitions of the com-
mons revoked, and Writs in due form to be
■ent; and fur the ti:iie to come, the king shall
not assess, but in such a manner, ' conie ad
' esiro tail en temps de caux Ancestori M i:ome
■ il dencM pur reason.' T hi occasion not re-
quiring it, 1 shall say nothing of ic, when these
Taxes weredisuted. My Lords, I liare nowilorie
with the Tenures, the first way. whereby tlie
law hath provided for the safety of this realm ;
wbicli of themselves not enabling the tings in-
trusted therewithal suficiantly to do it, the law
therefore, besides the honours, castles, manors,
and other constant revenue* of the crown, for
the supportation of the ordinary charges there-
of, liaiJi appointed unto it divers PrerognCives,
for tbe extraordinary, and for this of Che De-
fence of the realm, as one of tlia i^iefesC of
tfaeni ; these i'rarugacives then have an inSu-
ence into tlie states of all the subjects in the
realni, and are so many, that, to gain time, I
will omit to in^icion any of them.
That which I will insist npoa, will be to
prove, that the Uiir^ cotoing to tlM Crown by
this iVerogative way, are to be employed for
the defence, andoiherpubhcufTairs of the realm.
Ill bis (Bajescy there n a double capacity, na-
toral and politic. All his Prerogatives are jure
tonnm, and of nil siich things be is seised ^itre
opnma ; arrd iherelbre, as in other corpora tiiins,
Mich things are pnlrimimia el bona puUico, to
be employed for tbe common good, so likewise
by the siime reason here. I'te reason why tbe
kiBg hath Treasure Trove, and gold and silver
Mines ia tbe earth in the case of Mines, is de-
clared to be, because the kitig is hereby to de-
fend the kingriom; and in tlw Institute in tbe
Title of Soci^, fo. CS. 137. tlie reason of
many of the rest : ' Quia thesaurus regis eat lan-
' tlamentdm belli et HnBaraentum paeis .' This
I cnnceive to be the reason, thnt by Che Statute
14 Ed. 3. cap. 1. Escheats, Wnrdriiips, Cus-
toms, and Profits nrbing of the reahn of Eng-
land should be declarnl to be spent for the
■afcgunrd of (he realm, more than the prolitsof
tbe king's rnamrs and lands ; and of the differ-
ence made in the Comm' M. 3. Rich. 3. Loo-
don,, between ■ Rectas proinissiones Rrgni,'
wfaieh by thendiiceof theLiirdsof theCouueil
were to be spent in the liousehold, and the
other profits of the crown to be spent * Circa
' salvacionem et defensionem regni.' In the
ParliamenC RsU, « Rich. N. 41.' the
petition that the kmg will kvc of his own
nues; and that Wards, Marriages, iUIeaaes, Es-
cheats, Forfeitures, and other Profits of thr
Ctown, nay bm k^ lo fat spent upon lh« wan
toms began 31 Ed. 1, and were nade perpetual
875] STATE TillAI£, ISCHAhLisI. I037.~ne King agaiMlJotinnimpden,ag.\_&7G
b^theSutuleofar V.6.S. cap. ^6, niitt like-
wise divers Aids and Subsidies, ittii<:hare an in-
crease nf Custom upOD ibe Suiple Conunodicies
of Wool, Wool-Felli, &c. Leather and Tonna^
wid Wines, and Pounda^, and increase- up«n
allolhec tilings either imported or exported,-
either by Denizens or Aliens. Tiiatvvhii-hm tt>is
kiod was taken by his m^esty'in tbe 11th yegr
of his reign, when tiiis Writ issued forth, was
300,omL and upwards. The Aids and iiubsi-
dies, and likewise the Tonnage and Poandage
Micientiy granted upon particular occn'.ions
oa\j, and at'lerwardstotbelate kiagsaiid queens
for their lives by act cf parliaBienl, and now
taken by his majesty, and likewise the new Im-
positioD, altogether makes up tlje aforesaid sum
ef 300,000/. Of tlie legality thereof I intend
Dot to speak, for in case his majeity may im-
pose upon Merchandi^ wiiat hiinteh' pleasetli,
tliere will be less cause to tax tlie Inland coun-
ties ; and in case be cannot do it, it will be
Krongly presiuned, that he can much le» lai
them. The proving ihtse two things herein will
ferve my turti : 1. That his toaiesty liejaclo
takes them, and that this judicially appears to
7oar lordships in tbe court ; and, 3, that these
and the ancient Customt, are for the Defence
For the lirsr, it wu declared by his majesty
in the last parliament, and aiineied to the Pe-
tjtioii of Right as part of it, that his majesty
took.ibem, and could nut be without (hem;
whereof he likewiae desired ths Judges to take
notice, and that tbey mizht so dn, it is inrotled
both in this and other iLe courts of Westmin-
ster-ball.
for the second, that the jpant of Custom is
principally for protection of JSfercbants at sea
gainst tbe enemies of the realm, and pirates,
the commou enemies of all nations, sir John
pavies Keporls, fb. 9, and 13 ; and that. those,
■pd likewise the Impositions are for that pur-
pose, was held by many of the Judges in tbe
Aliment of Ball's Case 7 Jac. in the Eicbe-
quer, in tba Case of Impositions upon Cui^
rants, and likewise by the king's counsel, when
tba same casa afterwards came to be debated in
parliament, and was ooe of the main Keasims
urged by them for the maintenance of that
Judgment. That the Aids and Subsidies, and
likewise Tonnage and Poundage, before they
were granted for hfe, were not only for tl>e Pro-
tection of Merchants, aod the ordinary Defence
ef the sea, but also for tba Defence thereof in
XJmei of extraordinary danger, and Irom Inva-
Mon from enemies, appears by tha several
Grants of tbem in the parliament Roll*. Rot.
Pari. 1 Rich. S. pars 3, M- 9, and £7, the king-
dom being in point to be lost by tbe enemies of
Spain and France, and diven others there men-
tioned, who made war against us both at hind
and sea, a Subsidy upon the grand Customs was
grtinted, a* the words are, ' pur le defence et
■ rescous del kingdoiiie ;' this was for two years,
and persons asdaned to receive and eipend (be
money,, Comm Mich. 3. Itich. 9, Londoa :
Wmi^q ^yl(llg(onh w^.Jotin Philpot, atlwn*
of London, appointed the (i«asuren of it, npcni
their account, shew the particular* how thb
Money was expended, ' circa salvntionem et
' defensionem r^rii,' and were di^chai^d. Rot.
Pari. 3 Rich, q, M. 16, and 17. Tbe same
cause continuiag, Enemies intended to blot out
the name of the English from under heaven,
the Sabsidy continued for a year kuiger. Rot.
Pari. 5 Rich. 9, pars 3 M. 14, and Id. Tort-
nage end Poundage granted ' astint pre fbit
' apply sur safeguard del Mers,' and the kin|[
at the Petition of the Commons a]^iuts Re-
ceivers. 6 Rich. S, M. 13, the Cnmnuma com-
plain, that notwithstanding the Grant of Tun-
nags aiod Poundage, (he sea is not kapt, and
tberefitre person* named and assigned in parlia-
ment to receive the Inoney, and to do it.
10 Rich. 9, M. 1. Tonnage end Ponndnge
for a year. 11 Rich. S, M. 6, and 19. Ton-
nage and Poundage and Subsidy for a year.
13 Rich. 3, M. 30. both for a year, li Rich. 3,
M. le, hath for a year. 17 Itich. 2, M. 19, both
for 3 years. 30 Ridt. 2, M. 28, subsidy for i
years, and Tonnage and Poundage for 3 yean.
2 Hen. 4, M. 9, both fur two years. £
Hen. 4, M. 9, and 10, both for 3 years,
upon condition to cease if the king before St.
Hilary provided not sufficient army for tbe *e«.
a Htu. 4, M. 9, and 9 Hen 4, M. 16, both fur
3 years, for the common commodity and de-
fence of the reahn. 13 Hen. 4, M. 10, and 11.
for 1 year, so as the same be confessed to pro-
ceed out of their own good will, and not out
of duty. 5 Hen. 5, for 4 yearSjUpon many con-
ditions. 1 Hen. 6, M. 9, for 2 years. 3 Hen. 6,
M. 17, -Subsidy far3yaars,Tonn«ge and Pound-
age for 1 year. 4 Hen. G, M. 93, 6 Hen. G, U.
1 1, for S years Tonnage and Poundage ; aod
6f. 8d. upon every man within a parisb-cfaurdi
(hat hath 90 nobles, and 6*. 8d. upon every
Kntghls-Fee'hetd immediately of the king. S
Uen.e,M. IS, Toaoogeand Poandageto coi^
tinue until the next parliament, 9 Uea. 6, M.
14, both, and for 3 years. 10 Ueu. I3,M. 21,
for 9 years. 93 Uen. 6, M. IS, for 4 years,
Biul double upon strangers. 97 Uen 6, H. 30,
and 33, fur 5 years. 37 Hen. 6, M. a, and 4a,
Tonnage and Poundage first ^n ted for life;
and M. 41, assigned into the subject* hBoda
for 3 years for the good of the seas.
My Lords, either bytha Grant itself of tbem,
or by the Declaradoo o£ tbe (auae of (he call-
ing of the Parliament, it ^pean, that these
were all granted upon eitraotdinary occasional
and when they come to be granted for life, ae
appears by the Rolls and priated Scal«tes of IS
Ed. 4, c. 13, they were not only granted for tb«
ordinary defence of tbe realm, and prindjMllj
of the sea ; but likewise that the kings m^ht
always have in readiness a stock of money in
their hands to withstand an iuvation, a* i« de-
dared by the very words of those statutes.
My Lords, his majesty is in poaaession of
them, and was pleased by hia Proclamatioa
printed 1626, declaring tbe cause of tbe Disso-
lution of the hut parliament, as oppews p. 17,
to dedwe ttm thej w«e always gtwited to hi*.
$71} STATETRIA15, 13Chaw.«*I. 1837-
prageniton, for the gutirding of tha Seas, and
■Bfelj and defence of [he realm ; and p. 18, is
iraciouil; nleased in these words, to declare
th4t be dutb, and must still pursue those etida,
and uader^ that charge for which thcj were
first granted to the crown ; and p. 44, that he
receJFes them for the guarding of tha Seas, and
Defence of the realm,
M» Lords, I have now done with the Ways
whicb I firat propounded, whereby the Iw hath
provided Ibr the Defence of the Realm. I shall
add (hit onlyt That by the Statnte of Winches-
tar, which was made in 13 Edw. 1, every man
' secundum siatum et facultates,' for the words
of the StatBte are according to the quantity of
)i)s I^nds and Goods, is to find hoTM and ar-
mour fur the Defimce of the realm ; for that
the Statnte in this particular, extends not only
tn the keeiting of the Sea, biit likewise to the
Derrnee at^nst foreienera, is declared in the
Pariiament Eoll of 3 Rich. 9, M. 36. and by
Ibe Statute of S Hen. 4, in cbe Parliament Hoi)
M. S4, not printed, 'jaxts quantitatnm [er-
' r«niin et bonorum,' against InTaaions each
man i> to find Armour. ■ Atid by the Statnle 1
Ed, 3, cap. 5, these men upon sudden coming
of strange enemies into tha realm, may be ccmi-
pelled to march out of their own conncies where
ibey lire : whether they may be compelled so
to do without Wages, I shall ha*e occasion
•Eterwardi to apeak. How far the Statute of
Winchester and 5 Hen. 4, for Arms upon the
Statutes of 4 and 5 Phil. & Marj cap. 9, and I
Jac< G. 25. are in force, I shall not apeak.
My Lords, I shall now proceed to the stating
of the question. Bmcton in the beginning of
his Book salth, That ' in Rage necesaaria sunt
' htec duo, srma et leg* a quibus utrnmque tern-
' poi Bellorum et Pacis recte possit gubentsre.'
Glanvill, in the begioning of bis Itook, saiih,
' Reg* majettstem armis contra eentes sibi re^
' noque insuigentes oportet esse decorat." — His
majesty, as be is lord of sea nnd land, bo by
(hat which bath beea said, it appears that he is
armed for the Defence of both.
My Lord), the Reatoiu in the Writ, a* they
are weighty, so from these known Supplies,
whereby the law hath provided for the Safety
of the realm, they will hU of them be confessed ;
and yet thereby receive Answer, that th^ law
bath foreseen and provided ibe supplies accord-
iogly without the way in the Writ.
First, The cramnand in the Writ being ■ In
' fide et leglancia quibiis nobis teneminl,' it is
thence inferred, that each Subject's allegiance
bind:, him to contribute to the Defence of the
' realm. In the old Customs of Normandy, cap.
43. allegiaoce binds ' ad concilii et auxilii ad-
* jumentiun.' This, though it be piincipally
fierfonned by the Parliament, both m Advices
and Aids, yet besides these extraordinary, by
that which hath been said, we see both by the
Tenures in kind, and pecuniary Supplies, that,
without the asiiitance (hereof,' our persons,
lands, and goods, by his inajeity's conunand
■tone, are isade .camtribulary tbereunto, and
tbM.io ft'la/ge pfoponiwi...' SMWi^y, "Tbe
-in tite CoK r^f Ship-Money. [STS
Kule whereby tliis Contribution id
lated, as in the Writ, ' secundur
< facultates,' that likewise is satisfied, and that
both for Sea and Land.
For Land, incase either the Statute of Win-
chester, or 3 Hen. 4, be on foot, then in word*
that of finding aTms,<juxta quantiiatera ter-
' rarum et bononim.' So, secondly, in respect
of the Tenures, by Knights-Service, by the
Wards, Marriaces and Rehefs; these, Itx>nfess,
concern the leoant only; but tho^ otlier
Tenures tn capite and Grand Serjeanty, these
concern all others, in respect of the Licences of
Alienation, and of the Wardships of Lands,
held of other lords, and that all the Tenants are
become hereby wardable. And, Thirdly, in-
respect of the Prerogatives before mentioned ;
for the. greater the Subject's Estate is, 'th«
greater inflnence th^ have into it, and propor*
tionably raise more profit out of it.
In respect of the Sea, this is so by the Cu».
toms^ Aids, Subsidies, Tonnage and Poundage,
before mentioned ; for the charge of these ia
not ham by the mefchants alone, but by eack
subject within the kingdom, and that ' secuo-
' dum itotum et facultates suas.'
For, First, in respect of the Eiport: TTie
greater the estate, the mora Woo) and Wool-
ftik, and Leather, Lead, and other comm<>-
dities ; if that be done by the owner, be bear*
the immediate charge; if^hy the merchant, at>
cording to that proportion is his abatement in
price to the owner. So it is for Goods import-
ed; far the greater the estate and means of
livelihood are, the more each pewin buyi of
ihtse, and at a dearer rate. This ia cleared by
the Petidoo of the Commons in Pariiamtnt 93
Ed. 3, Rot. Si, M. 41, that the merchants bad
granted to the king 40*. opon a «*ck of waol,
' en charge del people et nemy det merchants.
And by the Statute 36 Ed. 3, c. 11. that no
Subsidy or Charge be granted to the king by
the Merchants upon Wool, witfaont assent m
Parliament.
Uenca bkewise that other gnnnd of Equity
in the Writ, ' quod omnes tuigit ob omnibni
' debet supportu-i,' receives AJiswer ; For as
■11 have benefit by the Defonco, »o il the
' conpensatiopublica/ we tee ic cornea from
■11. The fuller Answer is the Parliament Sun^
mon» of S3 Ed. 1, for Provision againil the
French, who inteiuled ' Linguam Anglicaiiaia
' omnino delere.' Rot. Clans. 93 Ed. 1, M. 14.
' Lex justissima prorida et circumspections
' sacrorum principom stabilita,' statut' ' Quod
' omnes tangil ab omnibus approbatur ;* th%
Charge must be borne by all, so it most be np-
p raved by all.
If his majesty be intrusted with the Defence
of the realm, as in the great Case between the
earls of Hereford and Glocester, it ii said, that,
• incumbit dotnino re^ soh-atio populi sibi
^ eommis.' nnd that 'perjarament'est astrictoe
< ad provideDdum salvauonesi regni circunv-
* quaone,' becavM no man goeth lo war at his
own charge. We see by that which is already'
nidftlMtllN l«w^tk-^«d«< tbe'Stipeii-
' dia Miniiterii ;' which thmt ibej do bind his
■n^esty to the defence and saCety of the ting-
dura, not oa[y iii puiot a( care and vigiluocy,
but even in point nf chares too, I shnll eadea-
voor to prove to your lordUjips and the court.
All^iance we owe 4i un Act of Hecipro-
' cation i Tor' ai it binds tlie subject to Tribute
and Subjection, to tlierelbte tlie king to Uie
cliarge o( Protpctiun by ihe eipence of theae,
' Ue» ud [uwlaiD corporum et boiiorum etectus.'
Tile supplies he hath, fai ihese purpoMt, tie
fi79] STATE TRIALS, 13CharlesI. ia3T.~-'neISt^agamttJohn:^npileu,€tg. [S60
tinned proclamBtiun, p. 18, and 44, il Rraci-
ously ^eased to prtifi-s*, thiit he holds Inmwlf
obliged to undec^o the clinrge of tbe Dafence
□rtiii! realm, and of the sea in ^rticular, I
shall tpure an<r further proof in this.
If that in the Writ, that the Sea ' per gea-
' tem Anghconim ab olim defendi consuevit,'
be not answered by the Scotiah Roll of 10
Ed. 3, before recited, Mhich savs, That the king
and l>i» aace»tors ■ Marl* An^Iicaui defeasoici
' anlehac const ilerunt,' nor by what is now said,
if it be adraitied, yet tint even the cbai^ of
this defence is home 'pergentem Anglicanam,'
is be.'bre proved.
The a«ii, and one of the main ihingi wberc-
Dpon I (halt sure my question, is ibis. Uii
majesty is in the actual poaicssioQ, not onlj
ofthe Service in kind, for I he "Defence of ibe
land, by lakias of the benefit of the WanMiifi^
Marriages, Reliefs, Pines, and licenses of Alia>-
ations, and ' primer sei tin,' and ofthe prern-
gaiivea beffKemendoned, but liltefne of tha
services of the Cinque Porta, unless they be
released unce 7 Hen. T, (Ibr then iheir Ser>
vices were summoned'', and of the Tonnage and
Poundage, and other duties for the Defence of
the Sea : It appears not by any part of th*
Writ, nor by any thing in the tvcord, that
either the services of the Cinque Porta were
summoaed, or that anv' money at all of his
majeMy's was eipeuded, either fta this service,
or at any other time for the defence ofthe sea.
AI^ lordi, I desire to be undetitood, I do not
affirm that none was eipended ; only this «)>-
pean not to your lordships aad the court ; all
that can be inferred from the Writ to this
purpose is, that this ship Ibr Bucks, is coBk-
inanded to be at Portsmouth by such a day
' ad .proficieud' extnde cum ounbus didi do-
' iniai regis et navihus alior* fidetium sabdi-
' torum saonioi.' By this it appears nat to the
Court, that though the Ships ara the king's,
that they are to be set forth at the king's
chai^; for the charge may be home by (be
■ubjecc, for aught appears.
Neitber, Secondly, doth it appear, how m»ny
these ships were, whereby the charge, incase
it werebonie by the king, might in any pn^ior-
tion appear to be answerawe to the supply
beforementtooed. Those othtr ships, ' alio-
' rum fidelium suhdilor' nostror' regis,' as ia
truth they were uot those of the Cinque Ports,
neither can they be lo intended, unless it hod
been 'SO expressed.
The Service of the Cinque Ports, and Ton.
nagc and Poundage, and other Duties, are the
ordinary settled and known ways by ihe law
appointed for the dereiiceorthe seai; the way
in the writ by sessing and altering the propcrij
of tlie inbjecta goods witliout their conaeni, as
in the writ, must needs be nantnl to he a way
more usu^al and eitmordinaiy. Against the
legality of it, I shall thus frame my a^umeut
by war of admitsion : fiiM, that in case tlie aer-
vice of the porta had been sunimuDed, aud ilia
money by the fbrenientianed nays rniscd had
hwu expcddad upou tb« dcfeMe, anA tbey had
before mentioned between the enrlsof Glocester
and Hereford, ic is siidr ihit. ' domiuus reit est
' onmiliuB ct singulis de regno suo juslitits de-
' bitor ;' which that he is so, even in point of
charge, appears in his ntejesiy's supportalion of
the Courtb of Jtistice, and the Salaries not
only to your lordships, and other the inferior
ministers of justice, aud anciently to the She-
riffs, but likewise raany other ways. 4 Hen. 7,
c. 19, the kiiigahall not let for any favour of
fibarge, but that he shall se« his laws fully exe-
cuted. Parl.23) Ed. 1. Rot. 13,£icbequer. A
clerk that attended a committee of Grievances
recovered Salary from the kin^, although the
Commission was lor the r^iet of lliat county.
This I conceive to he the reason of the deda-
ration iD the Sutuie of 14 Ed. 3, c. 1. and
Mhrr statutes. That aids, though granted in
parliament, for Defence, shall not be brought
into example ; in thai it might be conceived,
that the. commons were to Dear tliat charge
vliicb principally belonged Co the king, Pat. 48
Hen. r, U. 8, it is redted. That whereas a
late parliameDt ' in articulo necessitatis pro
< defcnsione regni contra hostilem ~ adventum
■ alienigenanuB,' the commons granted him a
largb Subsidy,. ' ultra quam retroactis tempo-
' ribus facere cnnsueverant ;' now the king
■ eorum indempnitaii prospicere Tolcns,' grann,
jthat ' imIu ccdat in pnejudicium nee in poa~
' terum trahatur ul consuetudineto.' In Wito-
m^o'a Case, in the second Report, fb. 15, it is
nsolved ^at a Covenant to stand sditd to the
use of queen Eliiabetb, that she is the Head of
the Common wealth, uid hath the care of re-
[MUinK foreign bitstility, is not good, because,
■aith the Book, the king is bound to do that
«r o^in. Com. 315. One reason why the
liing II to b*ve Royal Mines, alledged t>y all
that argued for the king, is, because he is at
Wown i^rge to provide for tlie Dereuce of
the realm, which he cannot do wilhnut money.
In the eart of Devon's Case, Co. II, gi, 6
Jnstitut. f». ia, and Ifil. ' Thesaurus Regis' i a
•aliod ' Nervus Belli.' For i he practice, the
-proof of. the particular charges the several
Jtings have been at for Defences of all sorts,
woiHd be so tedious, iliat I nill omit the citing
«r any thing in this kind. Sir John Davies
reports, fo. i% raauj authorities, and in the
ueaiise 'DeltegalihuE, p. 81. ' Elrincipestotam
' iinvigutioneni pro vectiyalibus prxctare co~
. Bui btcaas* his m^estj:, in &» Smiator
&8IJ
STATE TRIALS, IS Charles L
igh in this CMC the
not been aulficienr, that t<i
writ had been legal ; yet,
Rj^Iie's Cnse in the lOtli ItCport, ful. 130,
prescnpiion,
« but ii
) the
Che whule Level
ijringof n wnllor
]n Incit 9iiluteni,'
10 exlniordinary, when
I serve ih^ cum i tlieie
ur books, I intcud i
The CoiDmoD Law is ihe common reliever of
persons wronged; that in Chancery is eilmor-
diiiary, luid dietefnre no man can sue there,
when he m«y have remedy at ihe commnD law.
Tlie ordinary way ofTriul for Ufe n by Indict-
ment and a Jury ; vthrn therefore (his m*y be
done, and that the therilT, wiih tlie Posse Co-
tnitatus, is able to keep the peace, it cannot be
done by martial law, or by judgment of the
king and peers in parliament without indicl-
meat, as was adjudeed in the case of the eirl
of March, Trin. 28 Ed. 3, Banco Regis, Rot.
21. Mylords, Che reason of this maxim of law
is, as I conceive, thete actions extraordinary
tire done txira ordineia, and done only in times
of necessity, nheu we are not Tied (o any rules
of lav, and therefore not to he brought into
namplo, nor have any warrant but only that of
necessity; nor any rule toguide them but what,
pro Aic tl tivnc, shall serve for the bringing of
them about; the same power then that may
ooce do them, in the omitting of the ordinary
way, may, by the same rule, always do tbeni,
«iid so by consequence, how for such power is
tied nt any time, or in any thing, to any rules
of law, isiinlj hirmbly submit lo jour lordships
cansiilemtinn. My lords, t have now done
staling the ijuesli'm, tlioee ibings whereupon I
shall spend ihe reu of my lime are these.
First, Admitting that the ordinary means
nbovemeutioued had lieen all used, and that
ihey had nut been sufiicient ; whether in this
Case his mtijcsty, wiihout conKnt in parlia-
ment, may in (his case of extraordinarv De-
fence, alter (he Property of tlie Subjects Goods
for the doing thereof.
In the neit place, I shall endeavour, to an-
swer some Objections which may be made to
the contrary.
In (he third place, for qualifying of [his, I
shall admit, that in some cases the property of
the Sut^ects Goods for the Defence oF the
, realm, may be dliered without consent in par-
liament; and thall shew what they are in par-
ticular, and compare them and tlie present oc-
In the fuunhplace, becanse of some Prece-
dents of the matter of fact, and likewise of a|l
■uthorities that mnv seem to prove a le(inliiy in
this particular of Sttippmg for Defence of ihe
Sea, whatever ic be in the general, I sliall there-
fore endeavour'to answer lo such of them as I
have met withal.
For the first, that lo the altering of ihe Pro-
perty of the Subjects Goods, Chough for cbe
VoU lilt
IC37.— in the Cax qf Slip-Money. [&S2
Defence of the realm, a padiementary assist-
ance is necessary. In <his it uiast be gramed,
in the first plabe. ihat cbe law lies no man, and
much less the king, to impossibihlies : and
secondly, tliat the kingdom must be defended.
As thetetuie the law halh nut ibis great trust
upon his innjesiy, 90 nhen llie Supplies which
by the *ays befbre-menliuncd it liath put into
his handi fail therein, it hath provided olher
ways for a new Supply.
The first thing tlint I shall present unto your
lordships and this court, are the Aids uud tsub*
sidies granted in parliament. That amongst
the ' Ardua Eegni negotia' for which parlia-
ments are called, this of the Defence not only
is one of tliem, hut even the chief, is cleared by
ibis; Thai of all the rest none ore named in par-
liculnr in the summons, hut only this : for all
the summons of parliament shew the cause of
the calling ibem to be, ' pro quibusdam arduii
' negotiis nos et defensionem Regni nostri An-
' gliK et Ecdesis Angticanie conce^nentibus;*
and in the conclusion the party summoned to
be there, ' Sicut lionorem nostrum et salvatioi
' neni eC defensionem Regni et Ecclesiz rfiligit.'
And ill alt the ancient summons of parliament,,
when Aid was demanded, tlie particular cause
of defence, and against what enemy in special,
vas mentioned.
My lords, to gain time, I will instance but
ine or two of each king's reign. Ciaus, S3 Ed.
1, M. 4. dots, ibat the French ' ad expugnan-
dmn Regn' nosir' classe muKima el faellatorum
copiosa niultiliidine Krgn' nostrum invadunt
ct linguam Anglicanam omnino proponunt/
&c. Glaus. 3 Ed. e, M. 3, dors, and 7 Ed. 2,
M. 8. dors, (hat tlie Scols bad entered, burnt
and destroyed the Marches, and put them to a
tribute. Claus. 1 Ed. 3, pars 2, M. 6, and 99
Ed. S, M. 31, dors, that ihe Scots and Frencl)
had invaded the realm. Claus. T Men. 4, M.
•19, dors, (hat tlie French were with a great
■s
fleet, Quasi in ore Thaniesis, Co invade the Ii _^
dom, and the king to go in person ; after ctiu
kine's reign, che summons was as now it it.
That these * Ardun defensionem B^ni con-
:emen',' are the Aids aiul Meant of Defence,
id not the way and manner of doing it, at
iheir counsel therein is clear. lu the Parlia-
Roll, G Rich. 9. M. 9. This uf tlic man-
id way nod prosecution of (be war being
given in charge U> the commons to adt ise upon,
iliey answer ihts, ' Nee doii, nee soluil appet-
' tame al eux nies al toy.' Ilot. Pari. 13 Ed.
3, pars 1, M. II, ihe same being giitn in chaise
to the commons, ihey pray ' que ils iie sont'
I doner al rhoses del nueu). ils
nee:' And so Rot. Pari. SI
Ed. 3, M. 5, they encusc themselves, andsay,
that tliis belongs to the king and his council.
And itiac chese ' Ardua circa defensionem,'
;rc the Aids, is expressed in words in some of
the Summons. Claus. 7 Ed. 2, M. 8, dors. th«
luse of the parliriment to wichsland xhe Scots,
id that in ' tain anluis debetis eltenderc xia-
ChiuB. 31 £d. 3, M, 21, don. that ' circa neccf
^] STATE TRIALS. 13CH*iu.EtI. l6yi.-^TIic JSmgtf'muMitHof^^.ni.Vm
' iariam dcfetiiiionem Begnj qaana ad dictun
' peioiium expeiliend' uiiiiliuDi nec^iac" m>3
« habere ojiortet.' Clau*. 5 Hich. 2, M. 2, dors.
the kin;' being tu mnLe ■ voyage ' pro ilefen-
* sione lUt^ii/ which cuuld not be duac with-
out borrowing greitC suras uf money j iheretiire
the parliuiuent n'lU called to adviie nbuut the
assurance. So thar, my lords, it b clear, that
the law hath provideii this pariiamentary uay
6m supplying ut'tlie king's wnnis fur the extrar
ordinary deience, tod bath likewise put the
power of tuing of it into his majesty's own
luinds, for he may call partitmsnu ntien, oad
10 often u be pjpaselh.
> My liirtis, as tbs parliament, first, are best
qualllii'd and liiCed to ir|uke tliis supply; (lor
>unie nf each rank, ntid tlut throuiiti all tlie
f»ns of the kingdom, being there met, liia ma-
jesty having di^dared tlie danger, they best
kaiiff tiie iUim uf ull men within the realm,
•lid arc iitlfiit, by comparing the danger and
men's esiutt^togetlier.tv proportion die aid ac-
cordingly i) ai:d, aecoudly, ore Gttest for the
preservation of that fundamental propriety
which the subject hath in liis laciils and goods ;
bf cause each subject's role i:^ iiiclnded in nhat-
•oever diere is dooc: so tbnt it cannot be done
othenviic, I shall end^avnnr to provt; to your
Joidshijis both by reason mid autliority.
Aly tirat reason is this, that the purliument
by the liiw is opiioiuted as tlic ordinary tnc^os
of supply upon extraordinary occaaiuns, when
• the onlbary supplies nitl not do it. If this io
the writ therefore may without rcaorling tu tbqt
be uscit, the same ai^uuient wilt hold at before,
in reTortiug to the citiuoidiuary by ««y uf ibe
ordinary, and tlfo game incouveuieucy will tbl-
My seoond reason is taken from the actiona
of ranuerkin°s in this of the defence. The Aids
demanded by them, and granted in parliament
«ven for this purpose of the defence, and that
in tines uf inimiueiit dJUgar, are bo frequent,
thai I nill spare the citing of any of them. It is
rare in a aul^jecc, and nore in u prince, to ask
and take that of gift, which 1^ may and ougtit
to haveofrijiht.
The second way was Loniu and BeDCvolences
demanded by them, with promise of ^epayi
jecls e<iually, as of soine few. Put. 48 Hen. 3,
Al. IS, a commission to tlie earl of Leicester
And ot)iers, ' contraliendi mutnum in nomine.
* nostra de dennriia st victualibu^* and other
tbiugs ' in munitinnem navium ponendis ct nau-
< tarum stipendiis contra hosiilein edvcntuiu
* alieniganar' in Hegnum nosirum, ct ad defea-
* sioneio et tuitioDcm rjuKi' Uegni ;' and pro-
niseth repayineot, Vuis computit in the ELt-
cjiequer, CS Ed. 1, Eot. 100, the kin^ burrows
of tbc lucrcbants 38,966'- ' pro deCcusione Ileg-
* ni,' and pcomiselh repayment, Ilil. 31 Ed. 1,
2Ut. 4, and Trin. 31 Ed. 1, Rot. 41. divers sums
borrowed ' pro difensione,' and repayment pro-
mUed. Br. irroi. 34 Ed. 1, Rot. 82. 10,000/.
(v4 t)jr tbe kin^ w qit.e (iots foe iKaM*y bomir-
ed, this I confess is * Arduis Uegai negoiiis.
Br. irroi. U Ed. U, Hot. 1, the Scuts having en-
tered the kin>;dun>, ■ diveisn honiicidia, iiH:eii<
din, Gt deprxdatiooes perpeintntes,' the king
>eing in person to go againsi them, writes to
113 cuuncil to provide money ; and they, ' d^
versas vins pro denariis pro>id«idis esquiren*
tes,' resolve to borrow. P. 12 Ed. g. Com.
lun' fur the same cause a loan upon ^4
nerchaiits stmogers. Uot. Scot. 1 Ed. 3,
M. 3, tlie Scots having entered tlie realm
and taken divars castles, and thieateued a coi^
quest of England, and ' Quia crcscit sump-
' tuum multitudo in tantum quud ihesaurn*
■ nosier ad suslentationem ciercituum uoHr
' nequaq' sufficit,' he borrows. Chias. 11 Ed.
3, hi. 8, the king had borrowed 3333/. ' pra
' salvadone et Aefensiooe r^ni, ct vult pronp-
' taui soliitioQcm fieri prout decet i' and noil
u'.iiigus it to be paid out of the customs. \Val>
singbam, p. 170. ii Ed. 3, the king ' Sinistra
' usus cuncilio mannas surmnas pecuniE,' t^iU
sorts ■ mutuo petiit, assaverans ijuod in deftor
' siunem ecclesiat et regni iUns eipeuderet;'
but the people would not lend. Claus. 5 Kich.
'i, AJ. 1!, dors, the king ' pro defeDsiooe repi,'
being to make a voyage to sen, desired to bor-
row money, and a parliament colled to give as-
snmnce. 7 lien. '4, Rut. Frauc. money borr
roiveJ, ' prQ dcfcnsione, voleus prouiptam ef
■ socuram sdutiuncm fieri.' Rot. Pari. 11 U.
6, M. 13, 10,000/. bononed ' pro dsfeusinne,'
and spent, and tlie parliament order the secoi
Tity. Ii<it. Pari. 15 Uen. 6, M. 3, 10,0l)0j.
borrowed ' pro defensioue,' by tlie iting. Slat,
11 Hen. 7, cap. 10, it appears tliat a BenetM
lence bad been dusited by Xlen. 7, for tV da*
fence of the realm, and wherein be ncut m
person. The known commission to Canli^
Wolsey fiir the Benevolence in Marcb, 10 U,
8, it was to Hitliilaiid ' Inlestissinios hastes,'
of France oiid .Scotland, who intended to iikiftd*
the realm ; aud that the king's colTerg were noif
empty, and theiuforc they hare poiier ' Cosn
' inunicnudi et iitduceodi, peraUiMleudi H piap>
' tjcuudi cum subditis regis super amicahilev
■pecuniarum coucesaionem," a pars. Pat. 3?
lien. G, < cum pro sustenlaiione mgeutlsoneri^
' Dostfarum copiarum, quas in presenli Iain per
' mare quaw per tcrraoi conficerc, et in protnp*
' tu habere ccgimor ad resisteud' propedcua'
' husleui noatrum Prauconim Eegein, in delaii-
' sioncm tuielaui et securitatem dilectonua
< Slatut' et CI consemu EC scientia coDcilii not*
' tri daatvimus aliijuani opem de dictis subdi*
' lis noslris petete, et eaud' cum eorum bepc*
' rolentia rccipieu' pro eorum cujuslibet iiieul-
' late ministrand' nihil dubitaiis quia spODle K
' bberuliter quisq; pro sua portione tt 6cul«
' tate elargiturus sit, coque nagis et ciCius quod
' id tutnin consuioat' et cedat in suam ipsorum
' defensiouem ;' and the power is given to levy
it as a Benevolence only. By ihe Stitute of
S:> Hen. 8, c. 13, itappears lint fur tfae Defeiy*
lien. 8j bad borrowa^l 4>*>^ ■f*P' *^^^^'
l85j StATfi TRIALS, IjCujinfal. \637.~hihi CmtqfSH^Monfy. [S&d
The tliiM way wm by «nticipH(in[E their
tWIs. Trin. 19 Ed. t, Rot. 58, in the Enche-
<|ueT, Writ* *vent to til the sberilfs of Englnnd,
< pro salvatione regni ejusq; incnlHrum mlva-
' tione, fi inunicnmm rtephf jsione ;' tliat nil
the prafM arisine out Df tlieircoiinties, and the
fiihts of all the Ling's tenants dtie at Micli:ie]'
tbas, be paid at Midliinimer, and allowance
ptotnned in the next half ymr's rent ; and that
tfiis ' ad tain ardua negolia neccssaria, et in
* coQiuetuilinein non trsihatur.'
My lords, thatflot one or two, but so mony
ItD^, and of such power and wi^oin as mnny
ttf tbem nere, and that in a mntter of Euch con-
AKIoeOce, and in limes of necessity, should so
fcr descend from tlieir grentnoss, or so fer pre-
judice their right, ta to borrniv timt of the sub-
ject, nhich, without being beholden nnto them,
they tntgbl take of right, and bind themselves
to repaymetit, and all without any taho of their
right, your lordshipi will coneeire that it can
hardly be imngined.
JUiy third reason is taken from ibe iiicertain-
ly of the way intended by the writ ; for ihe
law delighting in certainty," to the end that the
hibject might hk sure of •oniewliat that he
taight call hii own, hath made all those thinga
Uutt the king challehgclb as peculiar to himsell'
Ihim the tilbjcct, either certnia in theniselcei,
ttr else reducible to a certainty either liy the
jlitlgcs, jury or pntliament, or some other way
than by his mnjcsty himself, as indiflTerent be-
breet) the king and his people. In thit I in-
tend tiot such things as ore comrnqn to the king
Wtb the subject, of which nature are ibe aitts
tor marrying the king's eldest daughter, or
knighting his. eldest son; fur these are dile to
Kveml common persons that are lords of a ma-
tior, as well as to the king, as appears by the
Watutfcof Westm' 1, 3-Rd. 1, cap. 35, M. S8,
Ithd are ontdue by any special prerogative, but
tiy Tenure ; end yet the common law for
ftroidhig excess therein, calls it ' Raiionilbile
* aintiliun ;* and even this by the stittiiie of
Westm" 1, 3 Ed. 1, cap. -95, is put into cer-
tainty; ahd the cause of matting the statute, as
therelit is Cipressed, is, because tlie pe^iple
were grieved by paying more than nils requi-
^te ; and thereby thnt which was reasonable,
became an unredsonable aid. This attitute was
Eneral, and named not the kilig in panicular;
itthestatdte 45 F.d. 3, cap, 11, Is only in
case i[ the king, and Na. Br. fo. 89, gives t'lc
reason of tbe itinkini of that statute, because
the king before did distrain for more than was
Et, and therefore by reason of the excess, was
hstrflihed to a certainty as well as the subject.
Neither are tbe taxes and talli^es upon cities
and boroiighs, or ancient demesne against this,
in respect of the baseness of their tenures be-
forefaentioned. And secondly, because the
subject thiit is lurd of stlch borough and manor
of antricnt demesne, huth tliem as w«11 a% the
king^ ns Appear* by the case of New Salisbury,
&S Ed. 1, in the parliament boob, and in the
new parliament roll, 8 Ed. 9, fbr the boroui^
nf Cmbtatet, and Br. Tfia. 31 £d. 1, Rot.
98, and Na. fli-. 9T. TheK things which are
pecaiiar to the king, either they be certain in
themselvei, ai are treasure-trDve, deodands,
wrecks, and the like, where the king is to have
the thing itself; and so if it be in money, «s
tbe demi-mat-k ; when iu a writ of right tli«
leiiant prayeth, that the seisin may be enquiiw
ed, fines ' pro lirentia coneordnu'li,' it » the
tenth part by the law comprized in the writ of
cortnant, and tbe post-fine one half SO much
tnorr, and fines for purchasing original writs
9>. Sd. where the thing demanded is 40'. or lOf.
where UK)/, and so in proporlioii. Or else it
is reducible to a certainty, as in all cn^e^ where
the pnrty is to 6e amerced, tlmogh he is ' tni-
' sencordia dora' rf gis,' yet the jurj must find
Ihe amerciniuent ; and when be is to mnke
fine nnd ransom ' id volliniatem Homini regis,'
yet ihis fine must be set by the judges : wbeh
tlie tenant by knight-servicb mates default in
the summons ' ad exercilum,' wtdcli is tn pay
escuage for the default ; this cannot be set hut
in parliament, as 1 shall prove hereafter.
My lords, to apply dll to the thing in ques-
tion, there is a cause fbr raising money for tlia
Defence of the realm, ' noh dcfinitur iu lege/
what *ill serve the turn. If his mnjesly, ns ili
the writ, may without parliament lay jOi. upoh
l2ie Defendant's goods, I shall huinljly submit
It to your lordships, why by the same reason of
law it might not liave b'een SOI. and so ad I'njf-
hitum ; whereby it would come to pass, that if
the subject hath any thing at all, he is not be-
holden to the law for it, but it is left entirely in
the mercy and goodticss of the king.
My ionls, I am now comi> to tbe second kind »
of Proofs, and that iS by liuiharities. The
cases which in the tlrsl place 1 Will Insist upon,
will be to proce it by induction: fnrif Ishall
prov^ that ms mnjeity without jiarliament can-
nnc tax his people tUr netting furth of Land-
Purces for delbtice, for makingand ranintniniiig
iif forts and castles for dcfi<hce, fbr victuals for
a defensive tirmy, fbr mniniennnce of prisoner*
taken in a dtfen<ive war, for pledges and hos-
thgei gtr(<ii by foreign states for the beeping of
peitce ; if it caniufi be in all or any of thesA
pHrticul firs, the fivesupportsof adefensive war ;
I shall then oKer it to ynur lUrdahips, tthether
it cad betlnne at all.
Before 1 proceed to thete particulars, I shall
nbservc thus much, mv lords, in the general ;
that if those that hold liy Hocieilt demesne anti
burgage, which are htit ease teoore, cannot b»
tnied 'nisi sur BF<"1 cause,' and ihat have
many prii'ile^es in point of Case and pr(>fit in
ciJn si deration tberpof, ai ihey have; much lei*
then can the tenants by Knighu-Seraiiie anfl
socage, that are frre tenants, and have no jiri-
tileee in support of the charge, betased. And
as tbey arc not taxable, but ' sur grand cause*
in ihe genclal, so neither in particular for this
of d^fi'uce, is is prof ed by that of escuage ; far
if his majosty without consent in parliament,
canncft lai his own tenants, nor proportion tba
fine rfrcofding 10 bis pleasure, wheu the tciiatft
holds ibe Innd ad titreituin, Ibr the defienGa of
687] STATE TRIALS. ISChaklesI. IGU. —"ne King ^aiaU John Haufden.eiq. [888
the kingdom, much leu can he do it where
there ia nu tenure fur thnt purpose. That
eM:iiuge cnnnot be set wiilioDt parliament, i&
first the statute of Running Mead,' Nullum
■ ScutiigiuLii vel auiilium pnnntur in rei>nu nos-
' Iro ni>i per eoroinune cuncihum regni iiasiri ;'
wbich ihi>ui(h it be not primed, yet it is of re-
cunl, and iiiniUtd in the tied Itook or the Ex-
ch<:c(uer, and cited in Mat. Paris, p. 343. And
that as well bet'ore the cuii6nnation of it, 9
lien. 3, B> since, it hath been b; llie judges
Teputed to be K statute and of force, appeni^
by tlie book of 5 Utu. 3, Mordnm. 53, where
it is ptetded, and called by the name of Magna
Charta,BiidBlluv>ed; and M. 10 Ed. 1,6menie
90. ioctpieute Banc. Re^is Kot. 56. in the case
'of Ralph de Tunnev, it la pleaded by the name
of Magna Chaita Juhiumis Regis de Running
Mead, and allowed.
Id the Book of Knights-Feu of Ed. I.'s
time, there is a writ citM, which went to the
Sheriff of Hereford thus; * Datum est nobi*
' taielligi quod ptures sunt qui tenent pbr ler-
' vitium milltanum de nobis, qui conlradicunt
' solvere scutagja <iun nobis sunt concessa per
'commune concilium regni nostri;' therefore
be is commanded to lery them. Conun' M. 8
Ed. C, Itot. dors, many processes issued for tbi^
levying of escuiige granted in Ed. l.'s time su-
perseded, and quite released ; the reason enter-
ed on tlie Roll is. ■ Quia dictum ! '
* fuit communiter factum/ that
ceive, that it was not dune
* ciliuni regni :' The Books are express, 13 Hen.
4. Com. Banc. Nh. I^-. 83. Inintut. § 97.
My lords, that those that held in socage or
fee-&roi, or nut by to many Knights-Fces as
they were distrained for, weie always dis-
chaiged, as appears by infinite precedents, I
shall make no use of it, as the mamier of enter-
ing these dischart(eB upon the roll ; it is observ-
able, that he is distrained ' sc si tenerit per ser-
■viliuni mili tare,' whereas he holds tliu lands
in Siicage, ' pro quibus servttiuin nliqiiod rei^i
' in exercilibus suis facete non debet,' and in
■fime rolls that ' Raltonc alicajus aullioritatis,'
he ought oot 10 be distrained ; therefore ' Quia
' Dominus Itex non vult ilium in bac parte in-
'Jnriari pniutjusruni est,' the distresses are re-
leaterl. Amongst dJTcrs precedents for this, 1
■hall cite but one or two, Br. Trin. 34 Ed. 1,
But. SO. the abhot of Abington and John
Ardrn, the iltr-roll of Sussex,? Kd. 1, Rot. 107.
of Gilbert Gifford. My lords, if the king might
huve raised money, and seized money lor find-
ing of Soldiers, or for their arms, this manner
of entry, as 1 buiubly conceive, would never
liave been sull'ei'i'd.
1 am uuvr come to the first particular that I
have instuncod ; th.-it is, the charging the Sub-
ject for finding of Soldirrs to go out of (bcir
county fjr the Hi^fenrc of the realm. My
lords, in that I bliall in iUl first phice admit
l!ie,f thrtf tbiii-s.
1. Tiiat ,-ittj.»;m nficr ilif Siitriire of Win-
lu liiid uli mauuc-r vl aim.-, <is vi.li lur the de-
fence of the realm against foreignen, as Ibr the
peace ; and that I have before proved by that
of 3 Rich. 3, M, 16. and after by the statute 5
Hen. 4.
3. That upon sudden coming of strange ene-
mies, these are compelled to travel out of theic
so for appeasing of any notalile rebellion, wben
the king for the doiue thereof goes in penon,
a« appean by tlie statute II Hen. 4, c. 1.
and 18.
3. I shall admit, that so long as they remain
at hocDe, and go not out of their countries, they
are to have no wages ; and that the maritime
shires, and those that border upon Scotland and
Wales, were not to be at the kin^s charge, so
lung OS they remained at home in (heir own
counties for the preservation of them ; but that
they were in that case themselves to bear tbs
charge agiinst foreign invasion, as of making
hue and cry, assisting the sheriff when he took
the Fi>s.ie Comitatna, and nil other thii^ cou<
cerning the keeping uf tlie peace.
• Bat that tlie Subjects are taxable either far
Wages or \'ictual8, or otherwise for finding of
soldiers out of their counties, though for De-
fence of the kingdom, or that any are compella-.
ble to do it at their.own charge, 1 shall humbly
deny. Tlie statute 1 Ed. 3, Miys, Thai in iha
case it shall be done, as usually hath been dona
in limes past, liir the defence of the realm.
My lords, f shall not deny, but that before E4-
3's lime commissions liavc is.-ued out of tbe
chancery for that purpnse; against which mat-
ters of fiict, not only to balance ibrjn, but even
to weigh them down, it is as clear that wbol*
armies, iome of tliem of 30,000 at the least,
over and above them (hat were summoned bjr
their trnure,have been maintained at the kiog'a
cbaif e, from the time that ibey have departed
out of their counties, during the whole tune of
their service, and that not only with promiiei
of payment, but ibat they were paid fx The~
leuro Regit, out of the Exchequer; atid niBD<r
times upon failure of payment, victuals, wages,
and other things, upon suit for them in the Ex-
chequer, full paymeot has been made; ofwhidi
sort in most kings reigns tliere are many casea.
My lords, this is the answer that 1 give to the
commissions to the country. That de/ielo tlie
king was at the charge usually for itefensite
war. By the statute 19 IK-n. S, cap. 1, those
that have annuities of the king must attend bim
when the king in person govs for the defence of
the reiilm, or against rebels : But there is a,
special Proviso, that tliey shall have wages of
tlie king from the time they set out till they
come to the kin^:, allowing twenty miles a day,
and aflerwanls as long as they shall remain la
the service. Upon a rebellion in the North 9tt
Hen. 8, against which (he king inieudcd to i^
in person, privy-seals were sent to mosL of the
Centry to attend the king with the best retinue
. ihnt they could make, and hkewise to hria^ the
bills of their expence and payment promised,
as appears by many of those privy-seafs remaiD-
, ing in (he palace-treasury, And besidei tbs
889] STATE TRIALS, 13 Chaw.es I. 1CS7 — m ihe Cote iif S^Moaa/.
iadentures tbemadvtt, nbereof I have seen
nuttcij, it Mppeari b]i the stalute'2 & 3 £(i. G,
cap. 2, tbot tUe retoiaer of siildiera at the kind's
chaif^e, was ns w«ll for <leleiisive as ofTeiiiive
wars; and alia by Che btutute uf 3 lien. 3,
* dIj lords, in the next plnce I shall endeavour
ibe proof hereof bj dear aulhorilics. The sta-
tute of as Edw. 3. cnp. S, il, ihat nune shaU
be compeltcfl lo find anns, but such m hold by
such service, if it beiiotbv graut in parliemenc,
TJiat thi» was not ' introductirum nuvio legis,'
■ppeais by a peiilioD whereupon tlic scaiute is
lUnde, that it is ' eucounler It druit del roylme.'
That Cbe common law was su belbre the sta-
tute, and hkeitise in case of a defensive war,
appeals by the auihoriliisi lullowing ; P. 9t) F.d.
1, Rat. 35. dors, the Scots entering the buidcrt,
a coDiiHiisiou issued Ke^inaldo de Grny, tii
prrsii EDldiera in Lancashire ; he certified Ly his
Jetter iiirohed there, ' que sans deiiieres prest,'
he could nut jirucure them to march out of
those puts; and therrr^jre. order is taken in
the Etcliei]uer to send money. That the Scots
had noiv invaded the kingdom, appears by Br.
irtot' lu. 30 Ed. 1, in Scaccar. ivhere conunis-
uon* ore iiiruUed for many ihousuiids to be le-
vied for thii war at the Linj-'s wages. Bra.
Trio. 33 Kd. 1, Hot. IB, Comrouiiia.. The
wardeiu of the marches of CuinheiLdid and
Westmorland "rite to ihe borons of ihe Eiche-
quer, tliHt whereas the Scots lay neir the
maicbes Hitii it great army, and that the people
of these uoiinties would UnC march Oul oftlieir
couuliea without wa^cs and victuals, ihat thsy
would provide for both. 9 Pars Pot. 10 Ed. S,
M. go, and 9 Ed. 2, in pari, a gi-ant lo Bnd one
soldier for 60 days at tlte charge of tlie town
against uit invaiion of [he Scutl. Now the
kii^ grants, < Quod hujusmodi conceisio uon
' reddut in pn^judicium, aec trabatur in ex-
* emplum in fuluro.' At llie lim« when this
aid was granted, the Scots had entered the
realm, and wasted the bishoprick of Durh.tm,
M appears in 14 EJ. 3, Bnnc' Reg. Rnt. OO.
Rot. Scot. 12 and 13 Ed. a, M. T, and 13. The
same indemnity u^on the like occusion of de-
fence, when they found the soldiers * ad roga-
' turn Regis,' and the king commanded the
chancellor to declare as much. Clau*. 13 Ed.
3. M. 33, dors, pais 1, llie abbot of Ramsey
discha^ed ' pro cuslodia mtritima' in the
county of Norlblk, because he remained in his
own county of liuniiugton, ' cum equis et
* umis,' for tlic defence iliereiif, with tlii), that
iberelnre it was notraltoni roatonani tocharne
him further. The same it is Rot. Fra. SI Ed.
9, M. 1, Pars 1. Oion. because they were
pnmrpH cl /larali at home to defend the
county. But the practice, it seems, not agree-
ing with the right nl the parliament, 30 Ed. 3,
.M. 19, the comm<<iis complain, tliat commis-
sions had issued out of the Chancery to charge
tbo people iu this particular and otherwise,
wiibout cuu^nt iu partianient, and pray, that
ibey may disobey such comraissioni. Tlieansner
it, that the cuiumoiis lud hcretulure proiuised
to assist the king with their bodies and goods in
the war with France, und likewise for the defence
of the realm ; and that the great lords, consider-
ing [he necessity as well tor defence at for (he
king's wart, agree (hereunto, and yet promiie
ihnt this which is done in ' cest necessiie, ne
' sdit troit en consequence n' cusam^.* My
lords, this is a full declaration of (he right, even
when for the defence, and yet some pnictise to
the contrary. Before the making of the statuts
25 Ed. 3, procured the Complaints in this par-
ticular, in the parliament 31 Ed. 3, M. S3 Ed,
3, I'at. 3 Hen, 3. ' Fulcasius de Brent inimicu*
' puhlicus et excommunicatus,' that imprisoned
the justices itinerant in Bedford-castJe, and
held tlie castle against the king ; the king,
' propter gruves et manifestos excessui quibns
' regnuin multiplicitur perturbnvit,' besieged
the castle; and whereas the clergy, de mtra
gratia, hod granted the king aid for ibe domg
thereof, ' Rex noletis gratiain sic nobis eihibi-
' tam ad dehituro tetorquei i,' declares as much
by his letieri patent. , My lords, it is here de-
clared that tlie king cannot dt drbito, or dcjarr,
lake any aid against tlie sulnects wills for be-
sieging of a caslle, held agamst the king by «
public enemy. Rut. luquision' 3 Ed. 1, Itot.
4. ' Kent' coram auditoribus quereiiirum poit
' be Hum Evesham et paccm proclamatam.'
The caslle of Tunbridge being held against
the king, ibe hundred uf Fevershnm was as-
sessed at i Si. per injuff(i(i(in;nof the castle:
Tbejury presents this as a grievanrc, which th»
justices would never have receivcil, nor suffered
to be entered into the rollfif tlirs assessment
might bare Ia><.fully been made. Myloids, this
castle and hundred they were both in ilie iaina
county, and being hemre the etdtute of Win-
chester, they are not compellable lo be^U-ge tiic
castle; and If they were compellable logo in
tie laid for the doing thereof. My lords, I skiU
(he marches of Scotland were to appomt ' El-
' ploratores et vigiles,' wliich were to espy oM
and give notice of the enemy's intendment).
By the commii^ns in Hen. 4, Hen. S, and H.
6 % times, they were ' eiplnrandum defcniioua
' regni, et pattiiun uimpilbus Incolarum:* Bnt
how f Only ' de assentu et voluntale sua, prout
> My lorda, I a
me to that of Vic
The autiite 1* Ed. 3, c. 19, is, ' That
■ fur the Wats (he Provision for them shall be
' done by merchants without commissioJl or
' other power from the king, or any other power,
' that the people may not be compelled to sell
' agiumit their will*.' That this was as well for
defensive as nfleuiiie wsr,and that this was not
' introductivum uovk legl;,' but was so at com-
mon law, is, by yuur lordship's favour, clear.
Fat. 39 Ed. 1, M. 16, 19, ' ad repriinendaia
' malitiam Scotorum,' and to repel Ihem, Com-
missions to raoit counties to prorlile Victuals ;
and because tiiey refuse to do it, the king Chen
offers them lecuriiy, Br. Trin. 8 £d. 9, Rut.
toiehtti
1^1] STATEtRiAI^lSCAlUUl. li37.-^!ntn>$^A>liUM^M^,eif.^
t9. VictQals booeht ' juxta rorum. patriK pro
* tnanitione Marchift Scotifr,' and there ps?-
tnent up6a sail adjudged. SaUietiTiiM atNe^-
-<:!utl«, pometinin at CKr)iH«, BomeliOies at
B^ririCk, BS the war teqoired, itere Store-
HdoMs, where the Victoals iters la.id, and
tIerLs of tliB siores eo issue them out. Thnt
ffae king not onLj paid Tar the Victuals, but (br
the honses whefe thej *ere iftid, nppeare. Br,
THr. Ed. 3, sbout the iad of the EoU, ddrs.
the tajTgesse* of Newcisli* comfrtain i* pat-lia-
ihetit, that thrir homes had heen Ink^n up long
time for the Leaping of thosft Vrbtuals ; tlija
irm tramtnitted into the Exchetjiler bj writ,
Mich sa^i, ' Voluraus hiis pro doUtibuA snis
* prcdictis sic occupaiis, satislikciirt, pront de-
■* bet tt prout jugtum fnefit, et proat temporibus
P'ogetTitor' aostrOr' fieri conauBTit.'
Mv lords, ill the neit place for lire Deftnte.
Wheh thn»e that served «itli hone ■ ad vadia
* regis,' lost iheir hnnrs in the service, the
Owners did not bear Che loss, but thej were al-
Itaji paid for by the king ; and therefore wlitn
ihej *ere first entered into the >erricE, the
tasrshal, or etse the wardens of the Marches,
%ho hail the command ortheni, did set down
hi a roll the hone of each man, anil the m^irk
And price of Pnch hor^e, to the intent that the
Ottoer by this cerlifirnte mi^ht bo assured of
llie full value tn be paid him, in case [he hnrae
wmlost. This appears Clans. 34 Ed. 1, M.
IB, where the ' custodes March'ie Scotix,' as-
f|£ned ' pri> defensione Marrhix,' A'ere tn do it.
m. irrot. In the 96 Ed. I, Rut. lOS, 100, ih^
fc*H having entered the realm, divers ' honii-
' Cidia, inctndia *t alia facinora perpctrantes,'
fiiere the horses ad tadia, for Defence were to
be a|tpraiscd. 9 Pars Tat. 10 Ed. 3, the «nnie;
«nd the Scotish R'.ll of the ?1 Ed. 3, M. 7,
the same, prout jut eit. That thereupon, since,
the subject h-itli recovered of the kin^, are
ttMhy casts. I will instance but in two or three.
In 24 Ed. 1, Rot. id, dors. Robert Helham re-
M^erM SO marks in the E^cliequer, ' pro erjuo
* perdito in coMflicIo Dover inter hninints re-
' gis « iniraicot Fi'ancist ;' at which time the
fWrtch had assaulted DovSr, and burnt the
rriorv Bftd a great part of the town. Br. T!il.
t Ed. 9, ' pro restaur&tinne triutn equorom
* perditor* at CurMc. <t Ed. 9, COra. P. 9
&a. 3. Richard Walde«mve recovered for
llorses lost at Carlisle. Com. ttil. i Ed. 3,
tbr wages ' pVo rcstauralionB ecjuOhim perdi-
' tor' ' and biirjing of the dead ivhen the Scots
lUd entered the realm at ^tanspt-Park, for one
litoop 58,000/. allowed, < habita \t\di delibera-
' liotiF,' and adjudged.
For Castles, the autient Forts and Rnlwarks
for Defence, the statute 14 Ed. 3, c. 13, sajs,
That merchants without any commiasioO or
hnwer iron ihe king shall victual ihem, io that
the people shall not be compelled to sell aeainst
(fjnr will. Tlinl this itaiute in this particular
b not ' lEttrbductivum novx 'cgis,' is cleared
by the Case Trin. 16 Ed. I, Rot. 05. Wilis, in
a little Roll, and in a great Roll of the same
yew. Rat ig, ithwi in Trin. by John Etes-
borfle nt^imt JOttti FlaMti ■ Qilia hMl H
' gnrbnS titias cepit,' the UeAadanl Mys, W
*iaS Cbhitttbte ef the kln^s CaStie of the De-
vises, and that he had <in>pr«!eptij Ddoidt
' Regis, quod mm' faCeFef to the CMli ' dt
' morturo scauro vel de biadiis ;' and of ttiHt
thing!, and that b} virtnfioftltis wMt,he («ak
an int;uest to knb* frheK h« inight htti bOl
tliesb provisions, ■ ad niiAns n^CunientOBi pt-
' tris :' ftad tbfe jury found it, that the OefiHil-
' t take it ' ad miittf) DoCutMUatn ps-
iF the Plaintiff; and thitt he eameis
the Plaintiff's house, and oSerfed to bur ' pni
■ denariiset sd usam regis;' And that beiaurt
Uie Plaintiff refused to siell, thty departed )hw
Ilia house ; the iatub joined, and found s|Ba9t
the Defendant ; ioo marks damtgei givch dit
Plaintiff, and adjudged. There were ati^jii
antiently -eitortt operalionum, and Iheyttpiili
oath certified, (hat they saw tht kiue'i monc)
expended, which was ilemnnded in the £idie>
quer. And for Victuals, ns they wete bought
with the king's money, so when they greWAal^
nr the darieer was passed, they were sold agaa
to the king I use.
My Lords, that even in the time of •si;
when the ProntlerTnwns Hnd Castles neiebt-
sieged, nod the Borders invaded, that tni
then the king did hear the Chttrj^, appetn br
the allowances in the Exchequer, Trio. 97 Ei
1, Rot. 47, ' pro tuitione Newcastle contia
' Scotos, qui bostiliter Regnum in pnriibusillit
' invaierunt.' M. 31 Ed. 1, Hot. !, the Stott ■
besieged Carlisle, gfi Ed. 1, and allnwanee no"
de crifiini C'otlr' which wbj tire kin^s. Andio
the 37 Ed. 1, Ti, lO.OOOf. allowed proingaC
and Trin. S« Ed. 1, Ret. 11, 19. i'iiii toMinU
S8 Ed. 1, Rot. 71. ' proOt jostum, quia wwi
' oontra regetn hoitSiter insurguirt,' thereftre
■ de thentorn Regis,' Berwick is fbrtiEed; (I
Rot. t3, dors, it appears that (he sberilTof
Yorkshire had carried 10,0001. ' de tlieodro
' Regis' to thnse parts. Rr. M. IT Ed. *,
' propter frequentes egreMlis ScotorirnI it) rtt-
'no,' the Castle of Sandali at the tiafl
charge is fbrtifted proul jiislvm, and allo«alrt»
S'ven. And Brcvia Hil. that year theeistteof
orney fur the same cause was foftiflcd, lli*
Scots having entered ' circa pridiOt' Caslrtira
' et apod Lancaster.' 3 et 4 Phil, et M<r.
Dyer. IGS. b. One in etecution for deht is
(he Fleet, who, is (he Book saith, was a ma"
very necessary fiff the war ; aiid it wlls iliotrf
by the ktne'A attorney, ' p^r mandalQih con-
' cilii," if the prisoner might be licensed witi
a keepir by the qaeeh to ^o to Berwick for th*
defence of it, or do ; and it *as held hj all
the Judect *r the KitiE'*-BencH and ('orttoM
Pleal, that th< license vftis liot good ; and 4tt
i the srtme Case Cited accofdingly ttj ha^e been
the opinion of all the .Tadges.
Myl^rds, for Prison«s taken indefcmi'e
Wars, irtd likewise for pledges and ho«tag«
for securing the peace, that the chargd anil
maintenance, and the carrying them to the se-
veral places of their abode, haie been always
borne by iht kings of tfab trntm, tUt allowAvn
(bercof io the E^ciicqvw sr« ^ fioment, dial
I jpcnid to cite none of chera, 4«vc that for the
prisoners lakeo ill tlfc coiiflict at Dover befoce
woken of, which i; Cooiia' 4 Ed. S, Hot. U-i.
fjiDrB. neith«[ do 1 firi'' 't Kt &n; time stooit
Upon, save only 8 £d, S, awaog ttm Br. Trii).
9 Ed. 3. Bot. as, don. But the rea^n i«, be-
cause that -after the deith of Ed. 1, in the (;oiii-
(nissiun i>r grentlug the Constablesbip of the
Caaile, no meution was made of the piisoner*;
(ud ^et even in that Ca$e, upon a Moiatravit
fiegi, a nrit of Friv; Seal is awarded for al-
' " xproutjuttum.
iiy Lords, if in all these particulars of Sol-
diers, Vicmali, CulUs aod Forts, Horses, Pri-
funers and Pledj;es io C4se of a defensive war,
^e niaia uipporis of them, the kitigs couldnot
tax. their subjects, but hate borue the charge
thereof the in 91; I vet ; I shall then olFer it to jour
lordships to be so tn the defence in ceneriij.
Jily lords, ihe Albnti^Ces in the Eicheiiuer
to all the patticuLurt before-^iEntianed are fre-
^ocqt. In the Cai« of Miuei, ibe protiis of
^ver coines, that tb^y upon an accompt in the
Eiclutijuer were ulviiiyg nnewered unto tlie
Ung, vtBS one of tlie principal arguments for
the king's right iliereuiito; and there fo. 3«0,
it is bdd. That in alt thiuga that concern the
Baienu* of the crowo, bn:ause titey are iheia
debaied, the Record of liie Excliequer »liew9
' fot oaly tbe caur^s of the court, hut vthat the
U<v is ^roHgii tbe kingdom.
Uj tordj, Ihaf in crms of War and Embas-
vea tte Cbfqncr laade AllowaucM, nod with
vhw ffau o^QsideratiaD, appears by tlia Ma-
lote !f ^cb. S, c. 10, that ihey were not al-
bwrd by the court, till tfa« {larty brouglit ihe
greutaaljOrtbeprivysealfor it. And ifa Writ
of Allowance came to the Kicbequer before the
court had examined the accoinpl, yec they
sever i^ade AUoitaDce until the court had eia-
tniqed it. HiU. 55 Ed. 1, Rot. 33- 'Licet
* br^is de allocatioue pradit de 1,000^ allo-
* caitdis tamen ante allocdtioDeni factam upoitct
' inquireiid' si pecuoia ilia ad opus It^jis de«e-
* nil ct qood ips! doceaat super hoc Curiam
' Regs.' And Trin. i5 Ed. 1, Rot. 47, the
Allowaoc^ ore never in gross, hut by particu-
lars.
Mj Lords, the neit proof that I shall hum-
Vy ofo uoio your lordships, is in ihnt of bor-
foxing of Manfy by the king for the Defence
«f (he realm ; whicli as they tave usual!)' done
i^ so it is as clear, that ni>t only upon Peii-
tjons, tlieir own pleasure, and upon gince, hut
likewise upon suit they have been sdjud|ed so
to do in tlte ordinary coorts of justice. Comm'
Pascb. 3t Rot, 41, 149'. borrowed of Uenry
Thompson, ' pro defensione tolius Regiu,' na^
aued fQr, and repaymcut ordered, M. 10 Ed.
a. Rot. 160. ' Grande) pecunite soinm«' bor-
rowed by the king for thtt purpose, and order
for repayment. Br. 3 Ed. 3, Comm' Princip.
Rot 664/. My lords, in this particular I siiall
Qits but this on* case niore, Comm' Pascb. 39
£d. 1, Rot. 18. tjte kini ■ pro urgentissimii
*t<gfu o^tiii et dcfwiiiDOe totiiu rcsni,' bad
of mooe; in all the 'Ab<
^ia nnd Cathadcals, and oilter rrii^ious hauses
in tbe realm, ' et quo citjus cointaode poteiit^
promised payment, la th^ parliament 39 Ed.
1, at Lincoln the king is petitioned for repay*
meat of these monies, nhe promisetb repay*
neat ' Ita quod regis consciriitia super We
' soDe{et,'and there, and RuC. 19-divarssums
e adjudged to be p>id.
Mj Lords, 1 sbaU thuj bumblyofler this unto
y[our lordships, that if the king had conceived,
that when himself wanted money for the d«-
fence, that he might have chained his subjecia,
be would never have made this answer of R».
payment, ' ad eionerandum cons(:ientiam' Air
then in equity and conscience the pnrliaaient
should have takea car* for ths satislaction of
these debts, or should nt leoMwige have distrti
buied part of ilie charge upon all Uis sulyects ;
neither should tlie parties have bad full satis*
faction for all iheir dcbis, but should hav«
horae part themselves. By tbe apUute 3S
Hea. 8, c. 13. the king for the Defence of iJsi
reaha had divers great loans made to him:
Now likewise tlieie being greut cuute of neir
defence against Fraace in Scotland io aijt
of the king, they release these Assurances
givca by the king, and hk^ise release to tha
king nil tuiia and petiiiuns concerning thoaa
moneys.
JUy Lords, I am now come to tbe Qther iw
thoritjes for proof thereof, which is hj'acts of
parliament. My Lords, before I come to the
acti of parliament themselves, I shall bumhly
oSer unto yoar lordships the Summons and
Preparatives lolhem.
First, The ' ordua regni negotia' for which
they are called, are principailj ' defen-ioiiem
■ concenentiai' that these are not the way and
manner of Defence, and their advice therein,
hut the Supplies and Aids fur this Detence,
I have presented dear Proofs to your lordship*
before. Thtt these Aids cannot be raised
without their consents, is strongly inferred in
this, that the knights of the shires are to have
' pleuBia et sufficientem auihoritateni pro *e et
' comitate comitatus prsd' ad faciend et con-
' seutiend'to the things in < negotiisantedictis.*
If this miglit be done without consent of tiie
commons, ibis in the writ would be neediest.
But chat this cannot be done without their coa-
sents, is cleared by the words following' in tli9
negative, ' Ita quod ^ro dcfecUi potestatis hu-
' ;usmOdi dicta neaolir ~' — —
» the
consents in parliament,
defeus'
L'ithOQt tllCIB
chargeable to ft
In the acis of pariiament, I will begin with
chat of William tlie Conqueror, anno 4 of hi*
reign ; which besides iliai it is cited in the pre-
face of the 8th Report, and Instit. fol. 75, and
by Inguiphua fo. 519, and Mr. Selden in his
Eadmerus, page 171, it is hkewise apon Re*
cord, and iurolled in the Red Book iu the Ei-
chequer. The words are these, ' Volamus M
895] STATE TRIALS, ISChaklesI, I6i7.— Tit King agaitui John Htmipika,etg. I'm
jiiitice, sbews the penona! csre that a1] bj
tlieir oiUi of allegiiince ought to bear to (ba
coinniuii peace anrl good of the realm.
Hia neii SuiDtc that I iliatl prcient to jaar
lordships, is thnt of Running Mead, 17 Jahin-
nts regis ; the woid) are tiMSe, ' Nullum kh-
' tajjium vel auxiliuin jiona in regno nosiro nisi
' per commune consilium rejpii nostri nisi art
* corpuii iifliLruni rediintiifl',' and tu LBight his
' eldest 9011, and tn luarnr his eldest daugliter.
As 111 wurdk tliesu evteinl to the Defence ; be-
cause all Supplies tur that parpusrfrom the sub-
ject, ther are oTil)^ innifj(7JMin,oriii tubjxnliBM
fipevtor' of the king, who as before is provided,
is priucipally bound thereunto -. so may llie in-
tent likewise he further gathered, fint from
iIiIb, that the word aurilium is joined irilh that
of Scutaee, Which is for the Defence ; and like-
wise from this, that particular SHlistkction is
mode, l)v othtr parts of thai slatnie, to those
that had been disseised bj R. 9, and king John,
nhicli were things done oniy far the increase
of their revenue, without shew of the common
defeure. That both before 0 Hen, 3, and af-
terwards SO EtI. 1, this was a Statute, and so
accounted, I have before proved. And in the
book 5 Hen. '3, it is called by the neme of
' Magna Charta sans addition.' So 37 Hen. 3,
In that solemn cnnlirmation observed l>; Maltb.
Paris, p. 115, this of Running Mead is con-
finned by the n.-une of Mag. Char, and 50
Hen. 3, p. isao, which I note onlv to this pur-
gise; tliat of speaking of Mag' Chart*, tliu of
unaing Mead is intended as well as that of 9
Hen. 3, as part thereof, nnrf bodied both toge-
tlier; jet that neither of tliero nere observed
either mkine John's, or Hcn.-3's time, our his-
tories are full of it. And bj the pope's bulls of
12 and 13 Hen. 3, the pope absolTiii;; the kin^
from his oath in their mnfirmation, doth it be-
cause, as the words of the hulls are, ' Jurttmen-
' turn pcccati vinculum es>e rion debet:* nei-
ther till afVer '^9 Kdw. 1, as [ sliall hereafter
prove, were they at ull observed in the thii^
concerning the kLiijE's prcn^tlve.
The next that 1 sKxll rile, are the statutes of
25 Edw. 1, and the statute ' I)e Tallii°>a
■ non concedeudo.' That of the 25 Edw. 1,
c. 5 Ac 6, the grievance is for aids, tasks anil
prizes taken through the realm, fiir the Vars,
shall not be brounht into any custom for »hj
thing before done, be it by ivjl or any other
precedfot ihut may be found ; and further
grants, that fur no business from hencelbrtli,
nenill take any such aids, tasks and prizes, but
by common consetit in the parliament of the
realm, and for the conmwn profit, saving the
ancient aids and prizes due uiid accustomed.
Mj lordi, (hough by the copulative it is clear
enough, that there must he a consent and com-
mon proht concurring, and a.li hough the saving
of the antient prizes and aids accustomed mi^hc
•ell enough have been $aiis6ed in the aid ex-
cepted in lluntiing Mi;ad, and the prizing of
rines and purreyiinin: g yet to out these and
ill other scruples, the statute ' De Teilagioi*
itc. made afierwwdt for that purpose, ia »!>■
■ firmiter pncctpinms et concedimiisquod oi
' libcri homines totius monarchie regnt nostri
' angliz, habeaiit et teneant terras suus et pus-
■ sesstones suas bene et in pace llbere ab omni
' exactione in justa et ab omni tullagio. Ita
' quod nihil nb eis exigatur fel capiathi
' oerviiiuin suum liberum quod de jure nobis
' faceie'dehent et facere teneiit' ec coucessui
•jure hierediiario in pei^tuum per commun
' concilium lotiui regnt nostri pried'.'
My Lord^i the words by reason of the di:
junctive ■ el ab omni tall'agio' are plain, ths
the king shall not exact, nor tuke any thine of
any frcetuan, but what his Tenure binds hi
unto. As iu words, by reason of the general] _
of them, it extends to castas of the defence of
the realm ; that it doth so in intent, I shaH
deavQur thus to present it to your lordships.
The Militaiy Services before mentioned for
' the Ueteiice of the realm, thev are by Bractoii
attributed to the Conqueror's fnstiiuiion; for in
ha second Book fo. 36, speaking of them, he
rnith, ' Secundum quod in Contiuestu fiiit ad
' invenlum.' I'luirden, in the Argument of i
Thomas I'reshain's Case, means, the Conque-
ror iiad to do it by reason of the many Attain-
ders of those lliat took part with Harold, and
•fler his death wiih Edgar Adieling. That he
did it in a great part, appears by Matth. Paris
fo. 8, tb»t he put all the clergy that before '' *''
in Franke Almogne tuli urrilttltMililari i
seriice trmpore AoitUitalin, and by the en
palatine of Durham and Chester in those places
of danger. In the Book of Knights Fees in
Hen. ad's time, it appears by the Certificate,
thev had sometimes ' de veteri Feoffiament"
anil sometimes ' de novo.' And hy some of
them it appears, that the tenures ' de novo Fe-
' olfament" were before king Stephen's time,
and therefore it is probable that the Veteri
Might be those create<l by the Conqueror. The
Provision for Soldiers pay by tenures was like-
wise of his Institution, as appears by that be-
fore cited out of the Black .^ook, lib. 1, cap.
97, that ' in primitivo regni statu post conf|ue9-
' mm ad stipendia et donat' mlljtum' out of the
castles and other lands ' in quibus agricultura
' non exnrcebatur pecunia numeraln succres-
* cehat.' The policy and provision of the Con-
queror for the Defence being by Tenures, when
in this act of parliament he says, ' qaod nihil
' ab iis exigatur vel capiatur, nisi serviiium
* suum quod de jure nobis facers tenentur,' I
humbly conceive shews plainly, that the sub-
ject was not otherwise to be charged for the
Defence, nor further than by tbeir tenure. This,
my lords, further appears by other parts of that
act of parliament, where speaking of any thing
of Oiarge that is to be done according to their
tenures, as that all ' bene se teneant in equia et
' armis ad servitium suum integrum faciend'.'
But in tlie next place speaking of the Defence
it saith, that all within the realm ' sunt tralres
< conjurati pro viribus et facultatibus' to defend
the kingdom and the peace, ' et ad judicium
' rectum, et juiiitiam faciend' ;' the coupling of
tbe Oefeiic« with that of the peace, and doing
887.} STAI^TBIALS, ISCiiAUEsI. IS37.— in the Giaei/Si^maiKg. [S$f
folate «Ti() genarnl : Tb«t no talllnge or ait
tliall be takto b^ the king, nur thnt imj <if hi!
Afficeri shall cake snj corn, Icncher, cotttc, oi
aoy other goods nitliout tlio consent of the
■ My lords, to bring these statutes to the thing
ID question, that these ihin^ cunuot be done
thoiuh for the defence, the times of the making
of teem, and the ci reams! ances concurring
thereunto, I shall presect unto ^our lunlsliips.
That ofthe asthofEiliT.l, hy the datfi ap-
pew», WM the 10th of Oct. 35 Ed«. 1, My
lords, the king, tlie 13lh of Aug. before being
Bt Odimer ready to go atet intci Flinders, the
parliament being then sumjponed by his letters
patents, RoC Pat. 35 Edw. 1, m. 7. tnking du-
See of the constables and marshnis departure
from the court In displeasura, and of tlie ru-
iTiour« ot the people, that the king refOsed to
seal articles tent him for lite coinmon profit,
for the redress ofdivers grievances done to the
"jMopit. ForibaGrieTancEshesaiih, tbatffitb-
out those things he could not ha-rc defended
tlie realm, and yet siiith, that he is sorry for it,
Olid prajeth ibat this may be lii.i excuse, ■>
thai he hath done those tilings, neither to buy
lands nor tenementa, nor cniites, but to defend
himself and the whole realm; and that if he
retumsd again, be ivbuld have all kiiovr, that
^e b<id an mtcnt to amend all those thin;;}, to
the lioniur of God, and content of bis people ;
that if he dies in this service,' his heirs shall
make a'-^N^ Hereby it appears, that ilia
grievaucei » procured this statute, nere for
the defence of tlie realm; lliereibre from bene*
it folloivs, that the aid and bixcs there men-
tioned nere for the defence. So likewise ttwt
the exception of the auticnt nids citends not
to those of the defence, that being the thing
whatty eoiiiphincd of. This declaration of the
Ling was ilie 13ib of Au^st ; the September
•fterllie king, bein^ Bt^Vluchelse<>, those arti-
cles are sent unto him, to tvliich lie deferred for
tti« present to pii'e his assent unto thein, be-
cause his council was not there, and to soils
over iuto Flnuden. This statute of the a5ih of
Edw. 1, is past, the king beyond the sen, the
' Tett« Edntrdo filio noslro;' at his return, as
appears by Wahiiigham, p. 43, the king is ile-
wred to confirm these a rue] es, which in Wal-
eiDgham, p. 40, nr? the same word for word as
,tlte statute ' De Tuljaiio,' wbicb tlie king then
deferred : 27 Edw. 1, tnev de^rc it again, nliich
tbe king doth nitli a ' Snlvo jure coruox oostrx
'.inline adjecto, quod cum audu^scut cumitea
' cum displacentia ad propri:i discesserunt,'
aaith the Author, 'sed rtvocntis ipsis ad quind'
■' Pa>cli' omnia sunt concessa.'
That die Statute ' DeTsllagio' was after that
of a Ed*. 1, is plain to this, by the king's gii-
JDg over iiitu Flniidrrs without assenting uato
any ivticles, in Sept. and 10 Oct. fulloving, as
appears by that statute H5 Edw. ], itself, it was
miidc; (ind likewiie by the statute ' De Ta.1-
' lagiu' it»elf, the lint's releasing all rancour to
tlie carl niarahol and coos table nho hud most
ofl'eiidi'd him, oftij &iH prcscnud tbece ariid^
VllL. III.
to tlie kill::. My lords, I shall add this onljf,
as I ciinfci'-e it wBl not be prmed, that lUn
kini; eitlier before or afWr the luilkiiig sf this
statute, nr any of his iiicctnors since, ever
claimed this absolute power over their snlijects,
as to luy aids nnd talliages upon them R)r the
supportatioQ af their oon priiale estates, ab;
stracled from the coinmon defence or good of
the kingdom. This king at this tmie, we Kt
by his own 'declaration, was fur from it, Thit
last Statnte fultv satisfied those that desired it;
for as Walsiagham saith, ' Ad eorura votum
' absolute omnia sunt concesia.' If therefore
it extends not to that of deleiice, I^huU huiui
biy offer it by what coiistrucrion of it our aa.-
cettoi^ judgments and discretions wi|l be freed
Irom a great deal of censure, that were so we])
contented with it.
My lords, Mag. Chart, being confirmed at
t|ie same time when the statute 35 Edw. 1, was
made, and both itiat nnd tlie statute ' De Tal-
' [agio* being only articles upoo 9Tq^. CliarU
thoy were airof them, as I conceive, lnleDde4
in the suhsequent, and so ofien confirmation
ofMa^naCharta.
Aly lords, the next is (he statute nf 14 Ed. ^
c. 1, that the people shall not be compelled t«
make niiy AitI, or to susiiun any chnrge but in
parliament. That thi'i cannot be done for iba
defence, will, as I conceive, be iafotced from
the words; for a great subsidy havini beeti
granted as well for the war on this side the se*f
that is for defence, as for the Freiich wars, it i»
declared, that this shall not be drawn into es>
ample, and thnt (Hit of parlinment they stall
not be compt'lled to .sustiiin any charge j and
then it it further euaclcd, diat.Uiis subsidy and
all lb* ))ro6is of wardships, escheats, and other
profits of the realm, shnll be spent ^r defence
and safeguard of the realm, and the wan in
Scotland and Fmnre, aiid not otberii here ; so
(but this statute, as I conceive, idl put together,
bears this sense. That the subsidies granted in
parliament, and the watdthips being a fruit of
the tenures created fur the defence nf ^e
realm, and other profits urisiiig to the king bjr
way of prerogative, are to be spent for the de>
Since of tlie realm, and the king's other wars;,
but that DO aid or chaige for any of these can.
be laid upon tbcjcommnns without consent is
parliament. My lords, tit&t the practice of tbe.
king, I mean Bdw. 3, was contrary to these.
statutes, and that they were not kept, ap peatf
by the Puitinment Roll, 15 Edw. 3, m. 9, tb«
next year uftcr, where the cummons shew iha<
their goods were «eiied, and their bodies iiu-,
priioued without aiiy suit commenced agaioat,
them.
My lords, the next wlJch I shaJl cite are the
itutes of 35 Edw. 3, and 1 Rich. 3, against
Loans and Bcncvol^cus, which I shall humbly
offer unto your lordships on thisground, 'Adea
' qui! frequentius acclderint adparaacur leges.'
Ak for my pan, I have seea general loans ai^,
bt^cvolciicr^s, but they were for the defence;.
so I roiVcciiu, ifthey were otherwise, tlieywerf
but fenlureapcctciftheotlieis. Tbe^c^iiBUiff
3S
999] i9TAT£TRIAI^ ISCflAUEsL \GiT.—ne King asiHitH John ItampdM.a^. [900
-grieTaDCN tbere&re bdng bj tonna uid bcne-
volencaof that nuture, ihejc itatutet, I can-
ceivi, were made against them; for the»e not
being within the words of any of the forcner
(tatuCes, that therefore the kings might with
the more colour put ihtm in practice, and on
iha otiier side being as eqaaljj dangerous to
the subjects, because of the displeaiure bj de-
nial, iher procurt'd ihe stntutes. That Loans
for the Defence were after 25 Edw. 3, counted
vnlAwfut, appears ^y Walsingham, p. 119, ihat
44 Edi*. 9, tKe kiog ' Sinistro cnnsilio msgnos
' summas pecuni;E' of all sons * peliir, aiserens,
' quott in defeaiuonem ecclesis et regnl iUas ex-
' penduei,' but timi the people would itoi tend.
My lords, the next »1i>ch,l shall cite is di-
rect in nords, nhich thougli it be not an act
of parliament, yet the wei^C of ih<^ autborit;
hy putting of tt nil! appear. In ibc secoad
panofthe Parliament Roll, 2 Rd, 2, m. 3, 4,
fi, ths king being bewt with the enemies of
France and Spain, and Scotlanii, who all thr»e
b_v lund and sen invaded the realm; the
privy-couDcil not ivitling, in a ttiiiij; so much
concerning the realm, to Hike the vl Wilt; charge
of it upon themselves, nor desiring so soon to
call a parliament, a parliumeiit but a little be-
fore being dissolved; they therefore resolved
to assemble a great council of tnost of Uic
biibopsy lords and other great men and snge«
ef the realm, who meeting and finding the ah-
folate necessity of a preparation for defence,
and that tbe klag wanted money to do it; what
their full and final resolution in this cose of
extremitj for defence was, I shall read tlie
words of tbe Roll; they say, ' Pur conclusion
* final quils n? poicnt cest mischiefe reniedier
^ isns charger Its comib' del roynlme, quel
' charge ue poient ile fail ne grant lans partia-
* menc :* and therefore the necessity being ui^
cent, the great men lend money for the pre-
MOt, with advice presently to i^ill a parlia-
Uent, as well to provide for the repayment of
fhis Loun, Si for further Supply. It' is true,
isy lords, it.ttt this Ling wiis at tliis time within
Dge, and it is likely that many of his council
had been Edn. 3, his grandfHtber's privy-coun-
cil, who nell knew his prerogative, and ex-
tended it as far, by reason oFhis great *ars, to
the cbarsing ofhis subjects, as any before him,
or since nia time. Ana that not only the privy-
council, but likevrije, as the record suith, al-
must all the prelates and otbers, dukes, earls,
barons, bannerets, and other sages of the realm,
which I conceive were the judges, should be so
far from putting this in execution, that the;
declare in the negative u)vin full delibcmtion,
that the commons ciyiiioc be chained herein
but in parliament, themselves likewise theteby
being to undergo a present charge, by lending
to supply that nacetstty ; the authority must
needs be weighty 1 and upon second thoughts
ademnrds, £e same was declared in full par-
liament by tbe Lord Chancellor, and so after-
wards entered upon the Holl without any qua-
lification at all, which adda brtfaer to the autho-
titf thereof.
Ult, Feb. 3 Car.
diven great lords; the cud, as appears by tba
wards, was for aiding the king's allies bevond
sea, and for the defence and saTety of the king'
dom end people. They were, by the com-
mistiou, to raise money by imposiiioD or otber>
wise, which without extreme unnger to the Lin^
kingdom, and people, can admit no lung delay,
wlierein form and circumstances are to be dia-
pensed with rather than the- snbstanca last
This, my lords, was a commisMon to tax tb«
subjects in time of necesaity for Defence. Th*
last parliament, this commissinn as against the
law was condemned by both bouses, and can-
celled in his m^ejty's presence.
Philip Contines in his 5th book, cap, 8, ob-
serving the same, nbove all other oommend* '
the policy of the English Inwi and govcrnmeal;
and both he and Bodinus Reipnblic. lib. 0,
c. 11, and Posquerus Advocate'General in tb*
king of France his Chamber of AccompU in
his second Book, c. 6 and 7, all shew thulike-
wise 10 he tlie aDcient law of France j'and how
the practice comes now to be otherwise, thn«,
PasqueruB thews nt large; and that tbe king*
oomctLmei eodenrouring to tbe contrary, fbond
so much difficulty, that they afierwardi, espe-
cially Charles tlie 5tli, procured hj the consent
of die three estates these aids fur defence to
be granted for 3 or 1 years ingetficr : And that
this consent of the people at the Gnt, was af-
terwards that which gave the occasion to the
king to take it without consent ; and tbetefore
he concludes, thnt France being < Uo Royaltue
' de Contequence,' that they mast not easily
promise any thing, though but once, which th^
will not be willing to permit for ever.
M; lords, I hni-e now done with the Proofs ;
in the next place 1 shall endeaiour an Answer
to some few Objections that are obvious, boUi
from Reason and Authorities.
For those of Authorities, 13 Hen. 4, II, 16,
Gascnigne's Opinion that the king may charge
his people without parliament, to a ihmg that
is for tlie common profit of the people; tbe
thing that he applies it to, is, that the king may
grant Pontage and Murage, dec. My lords,
that the king may grant both these, and Toll*
upon erecuon of^a new fair or market, or pave-
age, I shall not deny. The Answerthat 1 shall
give to (hem is, first. That these Grant* do
cbargs venatio only, that is, gooda carried to
those places for incrcbalidiie ; but that aay
tax may be laid ' wcundum statum et bcul-
' tsTH either upon the Hundred ot County, 1
' ly deny it.
:, my lords, by the Conqueror's laws
it appear*, that cities and walled towns wow
for the Defence of the couulry, and therefore
by those Inws no Fair or Market migbt be kept
but in ' civiute ant burgo atara valliaT.'
Therefore in Doomsday-Book in all such Case*
it is found, that there are so many ' mAnsioite*
' moiales,' which by their tenure when need
WHS, were bound ' ad niuruni rcTiciend'.' That
no nther land that holds not by that aeivice ii
liaUe, appears by the Parlitment Soil. 1 Ric.
«01] . mTETRIAI^, ISCbahlwI.
9, pan 2, m. 70, whare all the cities and bo-
roughs of Eii|1hik1 petition, that in tlus lime
of danger thej iiol being able with tbcir mrr-
^handiie to do it, tbat oihet^ that had luLidi
wittiin the tenas might lie jande eonlributuies,
who l>eibre were «t no p»rt of the charge.
The Aasner is, thai all according to (heir
Tenure, as thej have aiitiently done, so iball
tber still ; and if this lol^hc be done, there
would liai'e been no need o'f the statutes of B
& S Phil, et Mar. c, 1, 33 Elii, c. 4, fur GlTtng
power l() tiis men ' secundum st«turo et facul-
■ mm,' 10 reoair Caslles and Townt within 30
miles of Scotland.
i'lir ibe Tolls and Pontagei and Paveages,
■s there is a great deal of ' equitj that those
iihich receit'e beDcfit by bringing their ronds
lo the market, and over the bridge, should con-
tiibnte to the chaifc* that make and maintain
the uiarket-placei and the bridges ; so neitfaer
ar« they compulsory, but voluntary chat^n :
For as no man pays but be tint receives the
benefit, so none is compellable thereunto, but
is left to bis liberty, Neither is there any co-
Inarin respect of the town itself to whom llie
muruge or paveage is granted, why tbey should
not be charged, becmise (he grant cannot be
but at tlieirown suits ; for if it be not at the
•iiit of lot burseruhim, the Grant ii void, and
to be revoked.
It may be further objected, that as the law
Inth entrusted the way and manner of manag-
ing of Defence wholly and independently to bis
mqeaty, bo likewise of Aids and Means, tu the
* CauM tine qua non / and therelbre his m^es-
ty should not be dependent upon the parlia-
ment for then*.
My lords, the near relation between his ntk-
Jesn ■>"'! t^ parliament, that they ore bnt one
Dody, hath been presemed unto your tonlsliipt,
and that his majesty did exercise tbe lumiiium
imperium there, ^odin. lib. 1, cap? nit. says,
* quod ejusd' esset patestat* tributa nova impo-
* nere cajus est legem terri ;' but that ihe le-
^lative is not in lib majfsty, out' of parlio-
] 037 .— tn Oe Cm (f ^^Sfonof.
[909
filibeg:
nted.
Thie Sabjetiis interest being as nearly con-
cerned in. the Defence, as his majesty's is; as
there is no cause to fiear that they should not
be willing to proportion the aid to the o(»;nsiun ;
•o neither can the law presume otliermise,
which hath so high an opinion of the judgnient
and integrity of this court, that as it is in the
Comm' 398, it is unlawfiil for any man to con-
ceive any dishonourable tiling of it.
My lords, my last Answer thereunto i), that
bj the law the king hath as independent e
power to make a foreii^n war, as to make a de-
nn|ive. It will, as I conceive, be granted,
tbat in thii case bis majesty bath not power to
tut tbe Subject; for then it would follow, that
M well as to the conquering of tbe nextndjsc-
cnt realm, so of all !Europe, the subject should
be At tbe charge, and yet tbe land conquerrd be
only his majesty's ; end yet upon this ^ound,
{■ respect of ibe equality of the powers. It might
W 4oD«,— J4(4ker, ai f hunbly vmiMvt, doth
this only answer the objection, but retui-DS
upon the other side ; for his majesty has power
to make an otfcnsive war, which for the most
part causeth a defensive; by ibis means it
should be in bis majesty's poner to make a de-
fensive war, and to tax the subject for Um
tnaintenance of it.
My lordi, the last Objection whereto I abal^
endeavour an Answer, stands thus ; The par->
liament is a great body, and moves slowly ; and
that the case may be luch,- that the cause tnaj
be lost before the parliamentary sappLiei come,
My lords, how means of effecting to suddei)
and to great a surpriie can be so secretly car*
ried, I shall not examine it in renaon, but aball
humbly offer unto it these Answers :
That the service whereby the law hath pro-
vided for the Defence both for land and sen,
they have both the same limitation of timf
with the paHiamentary Supplies in tbe suiA^
mons of tne tenants by knightVservicc ad ei^
enitum, and of the Cinque-Ports; forty daji
warning is to he given, as is for the pariiainent.
And so it is probable, for that of Mould, 13 £,
1, it was for others that held by sea-servicA
And anciently the summons ad eiercitum to tll«
ports, and for the patliament, went out toge-
ther, or'tnuch about tbe same time, that the
parllament'miglit aiseis tbe escaage; and ia
case the tenures and other revennet were nut
able to maintain tlie war, that the parliameat
iniebt provide for further supplies, m appear!
nil. 98 Ed. 1, M. IS, 31 VA. 1, and 44 £d. 1,
M. IS, et 16, ' et nportet nGminem legibu*
' esse sapientiorem.*
The Tonnage and Poundage, when first
granted for life, was, thnt tbe kiitfis might alwayf
have money ready upon sueb siidden occasion^
In the Parliament Roll, 4 Ric. S, M. 42, tha -
commons desire pnyment oi Edward the 3d'*
Uebts, that they mi^ht be encauniged to leo^
the king in aid of the realm, if a sudden causa
of necessity shonld fall out. The Answer i^
that it shall be done srlon Ic j/elition. Mj
lords, by this it appears, that this objection waa
not then taken to be of weight, many of the
lonns are in ' Causa necessitatis in Articulo,'
The authorities tlmt furiher answer this objec-
tion are great, and full in the point.
The first is that of tbe PurHaineut Roll of S
Ric. S, before cited ; Che business of defence
cciuld not slay so long as for a parliamentary
Supply, yet agreed, tb.it the commons icithout
a parliament cauld not be cbarjjed ; and thrrc-
fore tbe snme men that gave the judgment pre-
sently lend moDcy for that purpose.
In the Stptute 31 lien, 8, for Proclamations,
ilie cause ofinaking the Statute is expressed in
these words ; Considering that sodden causey
and oc(^as>o^s fortune many times, which do re-
quire speedy remedies; and that by abiding for
a parliament, in tbe mean time might hnppeD
Orejudiceuiight ensuctotberealm; ther^
e kind's proclamation is by that act made
equivalent to nti am of parliemetit, but wiihu
fullexception of their knds,goods and chUCelt;
, which ts ittbcwi (hu iMfore that, by tb« eonx
>0j] STATE TRIALS, 13Cham.es I. IGiT.—'AetLmgafftinaMnHimpAn.aq. [b(A
iBon law, the king could not, in cases o( eii>
gcnc^ that could not ttay tor a purliiuiient, xukt
or seize ihcir goods, so they were carebl still to
My lords, after the statute of 3 1 Hen. 8, llie
Mqxiui or Justinian was Tcrified in lien. 3, ns
of the Ilontan emperors after tlie Lex Jtegia,
Whereby the people trnosreired llieir suffrage to
the eiiipergr, * Quod Priucipi placet legis vim
■ hnbct;* so all that lime wus that other as true
on the subjects part here, as there in tlie Digest,
* Lege omnia de Kegalii : quod oicuin est lion
* eat Dniversilatis, et quod nostrum est sine fec-
I to noslro ad alienos tiansferri non potcsl.'
"Hie 7 Pfwdict. of Spain, litul' 1. particular* 3.
S'lin something more to the king, for be may
ke from the subject, ' pro nocessitaie, reipub-
' lies clnto primum tali causa diets rci bona
' lambin ejued'veloiHJoris pre til bo no rum vin>-
* rum arbitria;' he may iu this oase take, eiving
« pawn to the subject fbr the aisurance of a fu-
ture full satisfaction. Lyme in his Gtb book, c.
SS,B<id;n in hiiSth book, fo.C5S, affirms, That
Irhcii IlaiinibciL had put Italy and Rome itself
into so great n hazard, and that llierc was not
money Idt in the common treasury, that yet
the senate without their consent could not
charge the people, but that ■ unuiquisque' of
the senate ' mutuo dabat aliquid in usum pub-
My Lords, the last autharity for the answer'
ti»; of ibis Objection, and the clearing of tbe
Vliole business, is the Commission of the Loan.
<S Car. pars 4, Pat. Roll, the words are these :
_ ? The gteat apd mifihty oreparalioos both by
' sea and land did (mly tlirenten the kingdom;
' '* that the safety and suDsiiteuceof the kiuj^and
' people, and the common cause of Christun-
* dom, were in apparent danger of aufieriiig ir-
* repor.-ibly; that the biug's treasure is exhaust,
_' nnd tlie coders empty ; That the business ol
* Supply cannot endure so long delay as the
* calliiig of a parhament, and euquirinc into ull
* means just m cases of buch unavoidable dan-
^ fEuri tbe king is now resolved to borrow of tlie
* Subjectjto enable bismnjestj for tbeir safeties,
* nnd promiseth repayment.'
Mv Lords, the borrowing of Money only i:
the tiling required, that is £r Defence, lliv k'in<
liad no money left ; the exigmcy such, thut it
would not stay for a poiliameoi. This C
mission afterwards in tlie parliament 3 Oar.
questioned, and u|K>a debate ndjudget! by both
the houses of pirlianient to he void in law ; by
the Petition of Right presented so to the king,
his majesty denies it not.
' My Lords, from this Objection of sudden
CanjjEr, I come to the next, which is the third
thing before offered untu your lordnhips, which
is an admittance, that the danger sometimes
tnay Le such, that the Sut^ect's goods some-
times witb{iut their sonseut may be taken
from them ; for Propeny being bocli intro-
duced nnd maintaiiieij by human laws, all
tilings by the law of nature being common,
thare arc therefore some times, hke the Phi-
listines beidg upon Sampsob, wherein these
cords are too weak to bold us, ■ Necenitas
ieniin' [as Cicero saiiii) ' ma];num humiuua
imbccitlitatis patrocinium omnem l^em fran-
git;' at such limes all property ceaseth, and
all tilings are again rcs'jlv<.d into ihe common
principles of nature. These tines, as sometimes
ihey are only iuttuaii, and concern but som«
few, as in case^ of killing one other meD''s
Lands, or with their QimSi upon sudden as-
saults ; so sometimes they are hinger in C'o-
and loiter iu extent, £\A cooceni
the whole kingdom, as it is in timet of war,
' Qiiuiido Bgrtiir pro aris et focb fUgraol*
' Beitu.' Aud as on the particulars bebr*
menlii)ned, wliicli are but lur a short time,
and that concern some iew onlv, the law. hath
no power for that time, nor majntainsany pro*
perty, so in the other case it loseth tiib power
for ■ longer lime, and orer all. A diiseot upon
Disseisin iu tiuie of war, takes not away th«
entry of the Disseisee. Uttl. Sec. 413, nople-
nary after tli« six moutlis bars the patron o(
his ' Quare impedit ' upon a presentation in
time of war. 43 Ed. 3, ' Qnare impedit ' 135,
Nn. Br. 31, And in a Writ of Rjght, wher«
tlie seisin makes the title, the ukjng of expleca
must he allcdged to be done tanpore pacii, tha
law allowing no estate in such limes, but calls
it an occupation in cimaof war. Litll. fo. 18.
And ea ' inter arma leges silent,' so that of
Uract. lib. 4, lb. S40, tt^t ' lempus guerra: est
' tempos iiijuriiE,' is likewise true; for after the
war is ended, the law, as not hating cogiiiiance
of ihiogs then done,gives.no remedy for wronjs
in that time sustained, us the CnSe is adjudged
in the roll of Kent. 7 Ed. 1. ' inter pbciia de
' jiuereliB,' one Parleton'dePetroEandat quod
' ipB« die Alercurii ante testum Sil* Tli'imx,'
40 Hen. 3, came t« the town of Cleve, and took
of the PlaintiBfs goods, three oxen, four cows,
Olid thre^'beifers, and yet detoini them ; tb*
Defendant alledgeth the pardon of Ileiiry 3, of
' Omnes traiugressionesfact'rationetutbatioiiit
' tunc in regno eiisten',' and ihat it was ' ton-
' pus gueme ' when the goods were cikea ; lU
Plaintiff replies, that the king pardons ouly of-
fences done to himself, * et nun tran^rctiiiane*
' aliis iilatas ;' the Uefenduot rejoins, Ibat
* tcmpus illud ' was ' lempus guerre, et nou
' tempus pacis,' and upon this ibe inuc was
joined ; the Jury £ndi that wlien the Defend-
ant loot the goods, ' fuit tanpus belli, et noa
■ tempus pacis,' and therefore it was adjiidged
for the DefendanL ' Tempus belli,' when Pro;
perty ceaselh, is not upon every intestine or
defensive war, but only at such i/mes when the
course of justice is stopped, and the courts of
justice shut up : and this is ' lempus belli ' in
ibe Institutes, Sec. 41S, 39 Ed. 3, Banc. Regis
Rot. 49, the Attainder of Treason of 'HiomBS
eatl of Leicester reversed, error assigned, ' Quia
' teuipora pRcis mnxime cum per'totum tempus
' pred' cancelhr' et al' curia: Dom' Regis apar-
' tiB fuerunt, et in quibus jus cuicunq; fiebat
' prout fitri consuevit, nee prsdictus dominut
' rex in tempore illoruntcumillisexplicaiisequ^
' tavit,' Tliac (ham iim greu uniies ob twU
jjjOS] ■ STATE 'miAUS, iSCiiAmUil. lfl81^(S«CH»e^SS§)-Sfongr. [906
h sides i" '^ btubeu when t^ earl wu
taken at Bairowe- bridge, our Histor«* we full';
but jet it was not that * tempiu gueme' inlend-
cd bj the law, because the couru oF juitioB
<ter« open, mid tlie Ling with baunen displ^}'^
wu Dot in person in the field.
fij Lord*, ui these times of wat I shall
admit not onlj hism^estv, but Hkcivise cverif
inan that hath poner in bit tiaads, ma; lake
tbe Coodi of anj viithiu the realm, pull down
lixit bouses, or bum their com, to cut off (ic-
mab&om tbe eeem^r, and do all otlier ihinjt*
ihat conditce to the safetj of tbe kiogdum,
Mtbnut i«^>ect bad to bd; man's property,
13 Hen. 8, 3 fir. Iram. 406, 8 £d. 4, 23, that
'ia sach times n Sutgect maj make a bnlirark
4n other men's lands, and that tbe tans olreadj
eiublisbed are ^ienc in sucb times. And aT-
lbo<^ it) that foresetn and lingering War of
Hannibal's, iibereof 1 have before spoken, the
Senate could not charge the people, ;et wfaen
multnl (inllil^iK.' t' ■ ■ '
Ibere
u a ' Tumultus Gallicus,' that is, when
but in general ; how bi in nhac manner ' peri-
' clitabalur non conttnt.' By tlie law tbe De-
{endaot maj have a protection nhea he is in
NeMviiii Ktgiii : but nhen he wiU make use
of It, it is not alluwaljle in tlint generality, but
be must shevr in particular, in what town er
castle, or other particular service he is in, that
sa ibe court mayjud^e whether [because be
sufficient, yea or no; aitd yet that is his tna-
jest/s writ too, as well ai that in question.
The BooksJbr it ore SO Hen. 6, S8, SDHen. 6, 1.
Yet in the neit place, if your Lordships shall
give any heed to tbis General, as to tbe parti-
cularotllrates iiifestiog tha cftasts, andpre-
pitatiuns furtlier ' ad regnum gmand", men-
tioned in the writ, th« Case then, as I conceited
is tins.
In a time of peace, his majest;^ vigiloncy
foresees a Danger likely toenaue; the Suppliv*
for procencion of this danger will serve, if
bniught in seven months after within fonr
days ; yet whether in this their case without
the Cisalpani their Deighboura, on the sudden, ' consents in parliament, bis majesty nuy alter
M sametnoet tbey did, assaolted tliecity;b} ~' ''' '
tbe same Autboi tbe case was otherwise.
Hy Lords, besidea this sudden and tumul-
luotis war, which shuts the Courts of Justice,
md brings his miyesty in person into the field,
and wherein Property ceasetb ; the law laket
notice likewise of other times of war, as when
hit majesty upon Just cause linonn unto him-
Ifcir ^ proclamation prodaimeth war againet
any foitiga slate, anil lilLewise the law taketb
notice of the effects thereof; tliat it, that no
•abject of sach prince or state is capable lo
proaecnte any suit in any his majesty's courts ;
Sad likewise, that'then it is lawful for any his
miycsty^ snbjccts to seize and keep ~ '
the property of tbe subjects goods 1
Tbe Second Days AnoTiiiBnT of Mr:
srr. JOHN.
My Lords, bating done with the Deience in
genenil, I shall now eDdeavour to pmre, that
mis oftlie Sea hath no sucli jjeculiaricy in it,
but that it will fall within that of tbe Defence
in general : wherein, in the first place, I » "
enoeavoor an Anmer to some Objectior" >"
Irom A ntharity and Reason, that nujr s>
prove a Kigbt ; and secondly, to lome Prece-
dents concerning the 'Use and Practice.
Ofthefirstrauk, I shall begin with Dauegelt.
It may be said, that the Danes infetciug tfae
isbotk
se, tbe goods of tbe subjects of any sucb . realm, that Ethelrcd, for the resistingof them
prince or stale, as in the hooks are adjudged ; fiisl by his own authority, laid this upon ihe
LEd. 4, 13, 13 Hen. 8, Br. Properly, 38, S3
1. 3, 16. My Lords, it appears not by any
tiling in this Writ, that any war at all was pro-
claimed against any prince or state, or tliat if
any of hi* majesty's Subjects bad taken away
' the Goods of any prince's subjects in ChHsten-
(lum, but that the party might have recovered
ihem before your lordships in any of his ma-
jejty's courtB. So that tbe case in tbe first
place i^ Whether in time of E«ace his majesty
may, without consent in parliament, alter the
property of the subjects goods fur the defence
of the realm. The tjme tlint will sene the
tiuB for. the brinEing in of ibe supplies and
inesm of tbe defence, as to your lordships
appears judicially by tlie writ, that ia seven
SDonths within four days. For tbe writ went
nut Aug. 4, aud commands the ship to be at
Portsmouth, ibe plnce of rjtndeivous> the first
of March following; and thereby it ai^>ears,
that the necessity in respect of time was not
•ucb, but ihnt a ^acliament migtit in that time
Jiave been called tur the effec;ting of the snpply,
Xet in the neu place it is averred, that
* SbIus regni periclitabalur,' and that was tbe
raiiseofissnii^ forth liie Writ; and this by the
Dcsiuner if ir should be confessed, ^ this >i
lubject, and made it an annual charge. That
after the Conquest ibey seldom inf^iind the
eoasls, (lie Conqueror took it not annually as
at first, but at such times only as it is i^ lbs
Black Book, lib. 1, cap. 11, when ' ab eiter^
' gentibus bella vElopinionesbellurum fuerunt.'
Aud that aAcr Hcniy tfaa and's time, the king-
dom beiitg altogether freed from the Danisk
■ __ Bitidugii Danpgelt Ipst the nam*
levei alter his time being taken by
hides of land as before; yet the succeedink
kings, by thcseiue authority, did lay taxes upcm
the Subjects far Defenee of the S^.
My Lords, for Answer hereunto, I shall in
tbe nrst place observe this only by the way,
that the best aud cettainest Aulhorilies agre«
not what it was, I mean the Laws of Edwdrd
the Contessor, cap. 11, and tbe Black Book.
For the Confessor's laws say, it was one shit-
liof upon every liide of land, and tha Blac^
BooE two shillings ; by which it should seem it
was little in Use io Henry the 3nd's time, nor
much known. Hut 11 cap. in tbe Confeas&t'a
Laws, where this is mentioned, was no part cf
tbeaniient lanstbemselvts, but somelluag af-
terwards added, appears by the words thcm-
fdvcf. Pint, it speaks of the Freedom which
-907J STATE TBI ALS, 13ChauuI. IffSJ-
the Church, io the lint inuilutioa of it, bad ; [ '
Freedom, we Icnow, was not lait ull alter the I '
CoDiiuett ; and likewise of the grancmg of it
bj Wimaoi Hufus in pBiiJEimeiii ; and therefore
it should seem to be inserted in those Law*
;UtErwards oot of thelawi of Henrj the Snd ;
fbnhis Heap, aod that of Daiie^elt in Henrj
the aod's laws, ire the same, dt verba in wrbum,
at appears in Hoveden fo. S44.
But admitting the tIriiiE, I shall eniJeavour
Ansven to eiicli part ol the Utqection ; as
first, that the Dimege It » as granted in parlia-
nctit. Mr. CninbUeii's Bnt. p. 14t{, observe),
ihnc tlie Danes lirw iiiftistfd the coasts jl. d.
BOO, and, as hii words are, With such hnrli-
burlies, a< the like was nei'tr heard of: havoc
Kas made of all, razing of cities, and bomlng
ofcUurcbes; and for their continual piracy,
they had got the nick-nnnie of Necfugti, that
is; Pirates. The Danegelt Srst began in Ethel-
red's lime, almost QOO years itfter the Danes
lit^t invasiou, for he bcgnti his reign a. n. 97"
That Provision was made for Sea-Defence
the interim, and before Eihelred's time, ap-
pears \iy the maoir Sea-Fighls of Alfred and
oilier kings. That this provision was usuaily
iik|iarliament, is probable from that of Ini^ur-
phus, Laodon prim. ful. 48S, where a. o.f"
which was 33 years after the Danes first Ii
lion, a Deed to the abbuc of Crowlaiid is di
thus, ' Coram Pontilicihiis Proceribiis et .
'jorihus totius Aaglift in civitute London,
*iimneacongregatisumusj>ro(»nsilin capiendo
* contra Danicos piraias littura AnglitE nssidue
* infe^tantes.' If liing EtVdred, by his om
authority, might have imposed this, it is liL
lame of his predecessors, the Case so necasi]
rily requirine it, In almost 300 yeare spac
would nave done it before this lime. Tluit tli
of Daaegelt was done in parliament, tlie words
earryasmuch; for the words of tlie law are,
' Daoegeldi redditio primicns statut' fait,' a
word most proper for the parliamentary niitho-
_:... T>.- j-yjj ^ ^jjg iij^j of that king, '
-"tie EagtgtutatJiAiHaa^dei, ttq, [Ml
mean Etbelred's laws, in Mr. Lnmbert's Saxon
Lews, lb. 5B, there ' ex sapient' suorum con-
' lilio,' peace is made with the Danes, and a
certain sum of money granted to the aimy, as
our Historians observe. The Danes, by con-
positroD, were to send away the whole Fleet,
M«ng 45 ships, which were to remain to de-
tend the kingdom against other enemies, and
the king was to maintain them at his charge.
That the Daaegelt was paid to the Danes for
tluB DeGetice, manv of our Uisinrians observe.
My lonb, that at the same parliament this was
provided for, appears by the words of the law,
* Si qois igitur posthac naralik aspirat* in Anglia
* prxdam fecerit, bic aobil auxdium ferat ei-
' erciliu oosq; ei ijoamdiu in Gde manserit auc
*ad comitat'suppetent* pBramiuomiiia.' TKat
this was B parliament, as tbe words shew it,
•0 it is held in the Preface to the Stb Report,
•nd Huntington lb. 30S. If this was not the
ZHnegelt, yet chi* is clear, that in that kii^s
time then pmvisioit ' pOMra Navates nppara-
' ttu' wu mad* by pariiamnt. ' PiiBuinKa-
' nerunt Angl' iofausto consilio quod ip« Pa-
' ' nis censum persolverent ; regibiis naoiq; Doi-'
' tris modo per serritia ex consuetodine quad
' Danis persolrebalur ex ineBtibili terrore.'
That Danegclt which after the Conqueiit wh
paid to the kinj;, we see by that ai^tbor, ' Rp-
' mumstatuerunt Aiigl'/ statutnm Angi''m[ni
needs be by parliament. If the Dnnegelt ill
such time of great danger was nut imposed,
without parlianieiii, it must strongly maks
against those (hat shall object it.
The Danes having quitted the realm, tbnt
the Dau^ett was released bj Edward tbe Con-
fessor, OS Ingulpbus lb, 530, and Hoveden !53,
and all our later histuriaus. That of Ingulpbus,
my lords, alone, is without exceptions, who
lived in those tinier ; he was brought up in
England in the Confessor's days, and thercforo
knew what he wrote ; he afterwards went over
into Normandy, and vim the Conqueror's Secre-
tary, csiTie over with him to the Conquest, and
at liis own charge maiotaiued Iwelte horses :
he wBi so great at the court, that, as'bimself
writes, fb. 614, ' quos voluit humiliavit, qaoi
' Tiriuit exaltavit ;' and png. 518, a Charter of
the Conqucnir's to the Abbey of Crowlaod was
made, ' ad petiiionem Familiaris mei Ingulphi ;*
and therefore, in all likelihood, would not re-
port this ponially agamst ihe king.
My Lords, ihnt vrearenot to put out our fire*
upon ringing of the Cur Feu Bell, we have no
other taw for it but disuse ; and the lesiimon/
of Historians, that Henry 1 released it.
For Chat of the Black Book, that William
the Conqueror retained it, ' tjuando beUa vel
' opiniones bellomiu fuerint,' as tliat Book ii
mistaken in the thing, saying it was 3t. even
hide of land, being in truth but one ; so it is
ible he might mistake in the oiber too,
: it was released in tlemum is apparent.
That insny thin|s were done de facto, t» tbe
infringing of the Liberty of the Subjects both in
his time, and the times of Hen. 1, and Hen. I,
too, it is clear by Historians ; and if it were not
released before, yet that king Stephen rdetaed
t, is, Huntingdon fo. 3^1. Hoveden fo. ?rS.
Hoc Deo voluit,' say these Historians, ' seil
nihil Iioram tenuit:' and as all our Historiana
agree, that after Hen. 9.'s time, in whose reign
tbe Black Book was compiled, it was never
□■id ; so it mny be collected out of tbe Red
Book, for all or most of the Aids and Escnagti.
Hen. 9.'« time, and king John's time, are
there mentioned. In B Hen. 9, it is said, ■ quod
■ Banegeldun) assetsum Ibit;* but after thal^
neither in bis time, nor in the time of king
John, or of any otlitr king, is any more meti-
m of it. Sir Henry Spelman, in hit Oioasary,
ith, that when it was taken in the Conque-
ror's time, and since, it was ' Consultis ma^a-
' tibus et Parliameatv' dmiBm aatbonta^
diminut' sunt.'
My Lords, in tbe kit place, if the sacceed- ,
ng kion, arvfato aommc only, have in bea
thereof laid other Taxes apon tlie Subjects,
they muat hold proportion- with that of Dane^
|«lt; that i*, tlux cbe^ bn* b^v t^oaU^ m
■JoS] STATEnUALS, 13Cha»lejL \6S7.—k the CaKtfS^Monej/. ^ (910
UponkU the Inland TonnadiroughoDt the king-
dom, M thftt was, mnd itd, upon every hide of
land ; and likewise in time, and thnt there wb»
no intennissiun, but that m Uich. ]/s time, nnd
king Jcitiii's, iThich were aclire, tbat then it was
put ID eiecuiion. Claus. 15, Joh' M. 3, don.
&7. and Mat. Pnris, p. 312, 313. The Pope
hadgranted tbe crown of Endatid to the French
lung, who was ready to invade the realm ; ertW
prOTision of Shippuu; nag made, ■ ait tl'iDCra-
' tionei Regis et ad stipeadia Hcfps:' so far
wai, this king, in this time of necesiitr, from
iRiposinE any aid npon the subjects for the de-
ftace of the KH, as that he hinuelf bore the
chuge.
MjLi
Mj Lord), the next Autlioritj that I ihall
Jnust upon, i*^ that in the temu of the law, foi
114, in the Title of Hidage, the Uiing by hides
was used much in old times, and that cbieily in
king Etbeired'a days; who in the year 10013,
when the Danes landed at Sandwit^h in Kent,
taked all the realm by Hides, and every 010
hides of Uud should find a ship.
My Lords, my lirst Answer to this is, 1. That
this was done when there was a ronnideble
enemy, and which soon after conquered the
kingdom, wa& upon the ihore, as by the Book
. appears ; and tbereloce it is likely that the
courts of justice were Sliut, and that the king
was then m person in the field. 3. This wna
but aclat uni'cut, and even by the Common
Law, that easily admits of customs, not ^d ;
it is atlui binui that hatb any colour ' iniro-
*ducendi'consuetudinem.' 3. It appears not
by any thing in (he Book, but that this might
be done by parliament ; many of the antienl
BctsorpBrliamenttirettatuit itej; and whereas
The Book taith. Taxing by Hidage wns much
used in old time, that these were by parliament,
appears both hy the uie and authority express
to the point in print, Doomsday-Book in Berks,
■ Quando geldum dcbulur,' Matth. Paris 780,
many Comeagia et liidagia, recited in parlia-
meut, that had been formerly given tu that
king in parliament. Bmct in his second book,
till. 37, IS express in lh<; point, that they cnnnot
be taken but by Grant in parlinment ; bis
wonU are these : ' Sunt qua^dam comm
' prxstationes qua; servitia non dicuntur,
* de consuetudine veniant nisi cum necei
' interMDerit, sicnt sunt Hidagia et Carneagia
' de necessitate et consensu totius regni intro-
' ducta.' Rot, Pari. 8 Hen. 3. M. i.
My Lords, the neii Autliority I shall insist
on is the Cose of theabboiof Rohertsbridgein
Kent ; which, because prima facie it seems to
be to the point, I will put it at lan:e. M. S5
Ed. 1. Gnient. 1. Banc. Rot. 77. The Ahbot
bmogbt a replevin against Adam de Bridlond
and other*, for taking liis caitej; the Def^d-
aots avow in liieM words, ' Dicunt enim occa-
a hommum ejusd' comitatus agis-
1 fueruDt ad custod' facieud',' And the
Abbot was aueised, S3 Ed. 1, at 7t. the S3 Ed.
1,at 13i. aiKi» Ed. 1, at 15i. 'ad prad*
' cuBlod, laciend' ;' and because he refused to
ind a horse and a
' iubudium custod* prted',' and that he found
bis horse and man accordingly, ' ad caud' ctuto-
' diam faciend' ;' and therefore demands judic-
ment, < li una et ead' occasione custod' prxdy
he oi^btto find the horse,' etnihilominoiprted'
' pecimiam volvere.' The Defend an Is main tain
their Avowry, and say, that tiie abbot had di-
vers other lands within ihe town, that he war
assessed for them, far the money, and that he
was not assessed for those for the man and
horse; thereou issue is joined, and day ^ven.
without any more thereupon diat I have seen.
My Lords, besides the Authority of it ia
point, these two things may be further objected
^om this Case: The county was agisted ai
Cuilodlam maru, and likewise to find forces.
My lords, for the last, I have before admitted,
and 6y the Statute of Winchester that may he
done, for the service was to be performed in
Kent, the same county where the land lay.
My Lords, because this Csm primae facit
hnth some shew of authority in point, I shall
endeavour a full and clear Answer unto it.
By tbe Case itself it appears, that these Sessed
were in time of nnr: the words are, ' occa-
' sione tnrbationts inter Regem et Regem
' Frond* ;" oeither was the war vrith Francs
only at that time, but likewise with Scqtland
and Wales, and all the effects of war accom- '
panied it, Ttie French had landed in divert
parts of the realm, and in particular, 33 Fd. 1,
m this county of Kent, and had burnt tlie
Siory, and the greatest part of Dover; th«
avens were shut up fcr a great part of that
time; the Goods both of the French and Scot-
ish nation were seized through the whole king-
dom ; the lands of all priors aliens were seized,
and those that were upon the maritime part*
removed, and natives put bto tbei)- houses,
and all strangers whatsoever, that landed within
the kingdom, to be arrested. All iliese, if an*
of them should be denied, will be made good,
not only by onr histories, but likewise by the
public records of the kingdom. So that my
first Answer is, that these sesses were iu the
time of an actual defensive war from the two
next and greatest states unto the realm.
My second Answer is, that it appears not at
>U, by any thing in this ca^e, that these Sesie*
were made by any authority from the king;
(or the word* are only in tlie general, that the
county was agisted, and that the Abbot him-
self was agisted, hut says not by whom, or
whose authority. Thatit wasnot by the kini^s
authority, appean by Leighborne's commissiott
appointed ' ad custodiam pred' fnciend',' as
the words of the case are ; tor by his commit,
sion whereby he was to do thi.s, which is Rot.
33 £d. 1, M. 8, be was so far from hiving any
power to tax the county hereuotOj tliat b« »
til] STAT&TRUI4 13Cu«)iLEsI. m7.^7lie GiigagaiiittMi»Hmg>im,ttq. [SU
the patties, in the qcdon, oati before tout loid-
for victual*, anui, or other thiBua
that lie iihall ofeil b tliii fauiioess, ihut he stiall
pa; iliose froiu whom be shall lave any sucb
thing; which likewiaa i< tDCered iu the Conf
Saatu, 23 Ed- ], Rnt. 77. My lords, that
ere were parliaiiieots in evtry one of these
years, pppeaij by t)ie suunnom, qnd those in
Borrlji not usuiU ; far the great fleet of France
lieinj menlionedj and ihm tlie French did in-
lead ' LinguAin Andjcauain oinnlno delere,'
rtiey were now called ' ad ttactqnd' ordinand'
'et rficiend'nubiscuai.'Bnd the lords,' et aliia
' Iqcolis Begni qualitcr sit hujustootii periculis
' obviend.,' a* it is in the Cloie lloll, 23 Ed. 1,
JU. 4, dors, and 34 Ed. 1, M. 7, dors.
My lords, that accordiii^j order nas taken
' cum Iqcolis ;' and that the gentry and other
inhftbitjinls, hy way of by-law sr agreement
hmongst themseli-es, did mitke prouiiion iq this
i particular, I slinll endeavour to prove to joiir
urdships: tfaatiilkath heen dooe at other liuiei,
pnd tlint such by-lans are good, qppeats, 14
Ed. 3, Banc, Ilegis, Rot. 60.. The Scots en-
tering Durham^ a by-luw nas made by ihe in-
babitantf tor tile railing of money, nod one'
that refnaed it was adjudeed Co pay it : be»i|c:
Lei^hborne, nha nas admiral of all i
lish deec, there were Custoila
11 the Ena-
iijity ; these, as appears by Com-
iDunift, 21 Ed. 1, Roti 78. does, were chosen
by the cominonaliy of each county ; and tijat
these, together n-ith the iherifT and inlmtiitaiiti,
did Diake order} for those ihingi, nppesis by
tlie Coinrouuia, sa Ed. 1, Itot. 79, where writs
are directed to the sheriiT of Kent, and to tlia
, eberiiT of other m^itiin* counties, cpmuiand-
ing iJieni tfiat ' circa maris cusiod' \isi9 prx-
' sentibus milites ct polentiores liberot homines
' de balllva tua evoces, et cum iniJs pruvida
' circumspection c deliberes,' how he sho^hl d(»
it This, I conceive, is fxpreised in point,
■od the praclice grounded upnn thai in parlia-
ment, ■ nd ordinuid' cum incolis.'
^ly Lords, my third nnswer to t!iig Case is,
that these sesscs were for bnd-servicc only,
TV, says, that Ue was segsed
and hoi;;c ' in subiidiuni cuUud' priad',' which
must be for land Mrrice; 9n4 thcrtfora de-
inantbj advent, 'siunaead'occasiuueeustod*
' pj-ed',' he plight both to find tlie horae and
to pay tlie siisi. Tbis is not denied by the de-
fendants; but they say {hat tlie atibot had
Dthi^r lands,' and tfiat this sass was for tbote
other Innils; -.o tluE it is admiued that the sess
for tiie liurbC, which must be for huul-iervice,
and tliat £jr which ihey avow, wgre both f'lr
the some use ; aU the difference is, whether the
Btss were upon the saine'lund or no.
Aly lords, if the seu, ibr nliich tlie defend-
aiitssvow, had beeo (br6hip|(ing,they might have
tdoiitted all that tlie abbot htd said, in bar gf
their avowry ; that is not withstanding lie found
ariM lor land-service, that yet he might, for tlie
SdiDc land, have been Eiu>sed attain to the 6nd-
inj(vf»luppin|. Kcitliei dg i duubt, but tbat
ships, do find arms, and jel they are sessed far
shipping ; and that it will be st<>ad upon br tbe
other side, that the finding of anna for land-
service eicuseth not for shippbg.
But it may be said tbot uie ver^ words arT,
diat tlie sesses were ' pro custod' marii.' My
lords, by diveni records it appeen eipreaslj,''
that the custody of the roanlime part of the
land is colled ' custod' marb.' Claus. 33. Ed.
1. M. 4j dora. A writ directed ' Collectonbut
' ptcuni* ad custodiani mfiris,' in this cono^
otKenlgCnniniandingthem, thatin respect tli^t
the Cinque I'arti were at the charge of thin-
ping, ■ quod (luieii sint 6e cuttod' tnaris fao-
■ endE>/ uhich must needs lie at land. Com-
■muiiiu 34 Ed. ], Rot. 73. A writ to ' Wil-
' linm BuDell^et suciis snia ad ^ustodiain K
igoatis, and yet all that
_ . office i) for defence ai lanj.
SoTrin. 3) Ed. 1, M. 80. Comiminia. This
' Custodia Uarhiipay' how it is 10 be done ap-
pears, Rot. Purl. 46 Ed. 1, M. 49, and by the
statui« 5 Ilea. 4, cup. 3, it is to be done, at
heretofore it Initb been doiie, acconliug lo tlw
stotutp of Winchester,
My fourth unsiier to this case is, that th^
plaintiff was a clergyman, tuid thecleru having
denied m parliament to aid tl^e kbg, m tfar
laity did this year, at this time they stood in
the kin^s disfavour ; and in Hil. term, ^b £d.
1, Rot. 17, the king commanded all bis caurta
of justice, that if any cler^'man wai plaintiff
in aoy uctiim, 'quad nullum ei fiat remediuni.'
And therefore Walsingham, in bis Annnalis
Consiliis of this year of 3a Ed. 1, says, that it
was ' Clero Aag^ix importabiJis, quia de pro-
' tectione regia est exclusus, el per regent ni-
' Lilotninus depredatum.'
But, my lords, if I should let all fp that bath
been said, yet, under your lordships favounr
the case is of no autborily at all : for, admic-
ing chat the sesse^ were for shippioK, aiid that
by the king's anthotiiy ; yet had the plaintiff
nil reason to put himself upon the pomt of law
when the niatttr of fact would help him: fv
the plnintlif says, that he had been lessed be-
fore for tbo^e Minis ; the ntlier parly says do,
lint that it was fur other hinds; and upon thia
tbe issue is joined.
Nay, my lords, if ibcrc be anj aotburity at
all in tlie ca«e, under favour, it 11 strong th«
other w ay ; for if tbe tesses were for thiupbg,
the abbot says, that before he bod fbond arms
for the land sirvice, and demands tbe judg-
ment of the court, if thereihrc he ought to paj
this sess toa The other party, if the law bad
been clear, might liave demurred thereupon;
so that the aathority sways this way, that nooa
for ibe sume land arc chargeable for «rma at
laud aud ahippiug too.
Mj[ lords, nul ooly for the fdeaiing of this
case, but ail other thing* that coocern it,
either in the mere right or matter of fact be-
fore tlie 39 Ed. I, that bctbre the parliament
nt Lincobi 39 Ed. l,all limg? coDceraing tfaa
king's prerogative, aod tlif sub-fct* lihj^fiA
!)13] . KTATETRIALS, laCsAXtML HSS7.—iitlu: CaM<ifS/i^Moiuy. [914
•rer« allogeiher upon ioMrUiniict. The sta-
tute of RuimiDg Meutl, MagiM Chart*, ChartB
de Fumtu, liad been coufiimed at least er^lit
tiaicB, I'roiQ IT Job. unto 99 Kd. I, and yet not
only tbe practice, but likewise the judjies, in
the court* of iu»tice, went clear coQtrRr^ ti
die ptaiu bout words and meaninf; of thein.
By ibe second cbajiter of Magnn ClmrCH, a
baroQ, ' pro Barouia intena,' was to pny but
100 marki for liis relief ; utepmcticc aod pru-
ceu uf ibe Eicheauer vM S9 FA. t, wat always
fur this relief lOot. Michaelu 36 £d. }, Kot.
34. Carnmunia, iifier the death of Jobn Gm^,
that held per baroauim, (lie quettion wag, whe-
ther he shuuld pay 100/. as the lecord says,
< prout antdiBC nnerari sulebal,' or 100 marks,
' propter coniidiiacii'Deta secuodum Mugnam
' Chaitam ;' and this tbu court would wt de-
termine before they b;>d coa»nIted niih (be
kingi uad vet ihe staUiie of Magna Charta
hod hfeu cu.ifinned by.S5 £d I, and likewise
the saiiie year, as npjiears by the statute Dc- Ar-
dculii super c bar las. Cummunia, M. IS. Ed. 1,
Rot. 36. Plubp Mermion di>d, uiid lOOJ. paid
Cor bis reliel'. It was now 99 Ed. 1, and in
<)uestion, whether 100^. or 100 marks admit-
tance,/ice/ hnctenta, tbey were alitays 100/.
becau-'e tbe king bod coiihrme'l Magna Charta
99th of his reign, and by bis writs had com-
manded his courts tu iuroll it, and would have
it ' de oetero in omnibu^i suis Articulis obser-
' Tori.' My lords, of lhi> kind (here be many
case*. Tlie Chatter of king John, and of the
Forest, cap. 10, is Nullua ' de cietero amiitat
' Ttlam vel mcmbriiin pro venatione noitra ;'
and yet aptiiist the plain letter and meaning,
Connmuuia tnn.JO £d. 1, R. 44, Adum Goner
of Scarliorough, as app«nri, bad in this king's
leini been befainujed pro vtnatune in the forest
of Danby; and now an iaquisltion went out to
find, what lauds and ^nods he bad ; and tlieu
upon the return the question was, whether bis
land was forfeited, and shjuld escheat upon
luch an attainder, and resolved that llie land
wo* not forfeited. Pn«;h. 22 Ed. 1, Rot. 48.
The king's shepherd had put the king's sheep
into a man's ground, wlio bod distnlned them ;
and for (his process weut nut of tlie Exchequer
to punish the isan, who rheie pleads, that he
Itncw uot that tliey were the king's theep. And
(here Rut. 51, dors. Lessee for life of a manor
af the king's with an adrowiion exaepted, the
court declared, that be had forfeited the matior
itself. By these cases it appears, that neither
the pmaice nor tlie pniceediugs in the courts
of justice in those times, in things between the
king, and the subject, are no much to be relied
■pon, as tbe words of (he law.
My lords, it may further be objected, that at
mmmoD law, before tlie statute of WinclieUer,
tbe king might compel the sabject to find arms
for (he defence of the kingdom ; and tberefiire,
by the same- reason, be may cliarge [hem to
£nd ships for the defence of tbe sea.
My lords, not granting the thing, yet for the
present admitting it, I ihall thereunto give
these anewets ; — Thai bis majesty by tonnage
and ponndage,and tlie oiher duties atcotnmnn
law aientioiied, balb a patti.-ular supgdy lur
that of shifipin)!, but bath uothinjt in [utrticular
for tbe ulhi r "( armt ; und therefore that may
with more reason be Inid upon ilte subject (ban
the uther. And yet lor one of (be principal
tilings iu chat statute of WincliesTer, ifintis. lor
watching and wardini:, the king before (hat
statute hnd a particular and certain farm or
sum of money of each county for tbe doing of
it, which after that statute die county was dis*
chaTf^edofj because by that statute tbe counties
took the change of doing of it uptn themselvi.i,
us the cn»es are Coinin. Ilil. 20 Ed 1, Kot. 10,
and Br. Triii. 43 VA. 1, Rot. «!, dors, I8(. ' pro
' Cora. Nonliutub' and 16l. pro Cumberlnnd.'
My second answer is, that each subject, and
ihaC tecundam ttaliau rl facaltalrt, i% n\tesdy
clurgcoble for ttint uf shipping, as liatli been
before (ironed ; and therefore if be be charge-
able both in nviney and kind tno, the ch.ir^e Is
double in (be one, and but siiiule in the >ii}>er.
Neitlier cfiuld it hold proportion with ihete
cases of watching and warduii;, where the coun-
ties were dischnrgerl of tire money, when they
took the thing in kind upon them.ielves. And
tlieielbre this objociinn t^aiuiot, a« I conceire,
be made, miless his majesty Urst quit all the
befiire-meiitionod duties laid upon inerclioD-
Hize. — My third anaiver is, that in tliat of arms
(here it only niulalio tptciei, cliannng of money
into arms ; fnr they remain the subject's still in
property, and are in his own custody ; be may
sell them, or employ them at his pleasure to
his own use : but in this nay of shipping there
is ablatia rti. In respect of the victuals and mn-
riners wages. — My fourth Bflswer is, that that
of arms is uot only for the defence against fo-
reigners, but in watching and waiding, upon
Uiie and Cry, and otiierwise lo keep the peaca'
within tbe realm, and for the «iecuii<m irT jus-
tice, by assisting the sberiff ivhen be shall have
occasion to use the Posse Comitntus, and otlier-
wise, all which do fail in the other. And at
the use uf arms it more ge'ieral, ^ are they for
the more immediate defence of that riement,
wherein we linve our usual and certain liveli-
hood. And yet the ordering of iheite for three
hundred years and tipwards, was by authority
of parliament. — Lastly, my lords, in respect of
the victuals and mariners wages ti lie found for
96 weeks, the case in question, as I conceive,
cannot hecompared to that of arms, but rather
to tiial oFtaiLiug the country fur linding of sol-
diers to go out of (lie^r counties.
My lords, the nent objection that I shall en-
deavour to give HiDwer unto, is, that it is in his
majesty's power, for (be sntety of the realm,
to shut up tbe porta and Mivens of tbe king- ,
dum. anil thereby lo nwke a general stoppage
of all manner of forei|;n trade; and therefore
as his innjekty may anticipate ^ain, by barrtug
men from tile exercising nf their callii^, so by
the same reason may be take something away.
—My lords, my first answer is. that tlie lavr
therein doth (rust the Linj only with tliat,
which being done, is most tu bis own loks, U in
8*
iJIS] STATE TRIALS, ISChaslbjI. IQ37.— The King (^ahat Mm Um^>den,aq. [916
not lo be charged, which ii theverj cue of the
defendant, I stiall cite to jour lordships eipreu
l^recrdenis. ClHiue 13 Kd. 3, M. 14, iiac. 2, the
triwn of Bodmin in Cornwall discIiBrgeil of
gliips, because iu ' dicta vilbi ijornii uon est ec
' loiige a mnri et liistat,' and hath not uted
before-tiine to find sliipping, tnd an ioqauiiion
awarded toini^uireoftheEe paiticulon; where-
by it uppears, that the inland eouaties had not
so mucli n$ de facto been usually charned with
ships. Rot. Fi-a. SI Ed. 3, M. 17, those ioitrs
' qu£ navei non habent, et quse aliis naves In-
bentibus contributoria non existunt,' that ihej
sliould be discharged; it appears tliCTcbj that
ins that are members of great aem
e contributory to shipping, and other
inland towns are not contributory, 2 Pars Rot.
a Itich. a, itl. 43, in nhich 51 BJ. 3, i» Periled,
whereby it i9 likewise recited, that the burgesses
of Beteriy had, by their petition in pariiauienl,
complained, ilrat their town is ' In loco arido ct
' a tiiari,' that ' ad unistmm procuraiioneni
' quorund' uiuchiiiantiuin ipsoi indebite pre-
' gravare ad coiitribuend' hominibus de villa dtt
' KiTtgatoii super Hull,' to the tanking ofa barge
' per iQuudntoui regis;' now they jiray ' de om-
' nibus ai singulis huiosmodi oneribus insolitis,'
to be ditcharj^ed by their charter; and it ap-
pears tlicy »rc discliargcd accordingly, and tbij'
now eiempbfied, 3 Rich. 2.
To thn9eof48 Hen. 3, both for taxes for sot-
diets and for sliippinc, I shall give a panieular
answer, that it was then ' lempus belli,' when
the courts of jnsiicE were shut; fur the eom-
uiission went nut after April, and in the lied
Book fo. <IM. G, it was ■ tcmpus belli' from 4
t>cp. 48 Hen. 3. until the 10th of Sep. 49 Hen.
3, and tlint tlic courts of justice were shut op,
appears 49 Hen. 3, Rot. 4. ' Comm' Scaccario
* non fuer' BHrones reaidentes in Scaccario,'
ad Pas. 48 Hen. 3, ad cMum' Pas. 49 Hen.
3, ' propter turbationem nii|*er habitam,' there
were no slierifls in ' aliquibus cnmitatibns,' 48
Hen. S, and ihnsc that were ' non poterint sic
' faccrc qute ud officium vie' pertinebant.'
To the commisaious SO Ed. I, M. 9, in the
Patent Kal], ■ de punieudo homines' that n~
fuscit, it it ' quia ail rogntum niiitere son con-
' ccsserint' so many shipi. And if a b^v-law
were good to bind tliem. ns is before proved, hs
well as tlitir own promise, li may be so; hot I
bitvc never seen nny legtd proceedings against
any of those tlwt refused at (hat time, saie
only against (he Cinque Ports that are inm-
inoned by their secvice. P. 33 Ed. 1, Biitc.
llcgis Rot. 83, against Seaford, ns a member of
tbeports;aud the charge is, tbnt' pent
respect of the customs and other duties this of
prol II hi ting foreign trade would he. — My setoud
iiiiswcr it, that this cannot be done but in time
of war, and imminent danger, and that there-
fore this objection will not be seasonable till
the other be put in execution. The tait objec-
tion is, that in divers old cHatteri of liberties
and exemptions, the patentees are freed de
Daiifgcldo ct tJiitiifio, hereby is implied right.
—My ansner is, from tbo same charters it
may ns wtll be inferred, the suliject is bound to
niake and repair tlie Ling's parks and houses,
and to mnkc dp new bridges, and dircrs other
things; tliese charters of enemption fi^eeing
them ' nb operationibu) omnium regalluni par-
' coram et pontium,' and from divers other
thinea which by law the subject is bound unto.
My lords, for the precedents that, from mat-
ter of fact and clnrge, may be brought for proof
of the usG and matter of fact, as 1 do not jiro-
fess to know them all, so if I did, yet time
would not permit to give a particular answer to
each of them; I shall therefore oflFer these ge-
Deral answers to tliem :
The most of them, or oil of them, are for
changing the sea-towns, and liaveii towns which
have sbi)i9, and many grbat privileges, and are
infranchised for tlint purpcise, as is declared in
the ParliumL-nt-Etoll of 13 Ed. 3, M. 11, hctora
cited. These that arc to lind ships, besides
die main prescription for n recks and benclitof
fishing, are discharged of arrays and defence at
land, us appears not only by the Poi'liament-
Roll, but by the Scotch Roll 10 Ed. 3, M. 98,
dors. The town of Shoreham, in the county
uf Sussex, time out-of mind hnd found (hips,
and thcreiorc, being by the commissioners of
army taxed to orras for the I mid-service, a Su-
persed' fiir that cause awarded. Jler Sussex,
7 Ed. 1, Rot. 03, dors. Williom de Bruce, lord
of SlioreliBni, upon his claim adjudged, that
all the custonts of merchants at i>borehain be-
longed to bim. Rot, Pat. S6 Ed. 1, M. IG,
the town of Yarmouth, ' pro servjtio na
• iiofieneo etiaipendenrt'j,' are discharged of all
•uhiiilies granted in parliament, ' pro corpo-
' ribus naviiiin, et otiito : et cfimmonia Tnn.'
31 Ed. 9, Hot. 30. The town of Baldaey, iu
the county of Sussex, fur the tame cause dis-
charged by judgment of tlie cnurt. lUr Kant.
31 I'^. 1, Rot. 44, dar4. Certain land-hnlders
witliin tlie Cinfjue-Poris have Taillage ' de
' quohbel homine applir^iiite,' upon their lands.
Petitions 1 P.iJ. 3, Itiii. 9, Oillcc de Pat. In
coiiiiderutioii of the ehariie of providing ships,
d»e town of Southampton petition, that their
privileges of having customs within ihclr ports
be coiitiriiied to ilieio; that iliey fiad these,
appears till. 13 Hen. 4, Banc Regis liot. 39,
where tiny are indit led fur e\tortion, iitr tiikiiig
more custom (inn was due. Rot, Pari" 45 Ed. 3,
the coiiiuions pray, that the franchises of tire
sea towns anil haieni may be allowed tliem as
heretii.'ore, and that by default tlicreof the
navy of Englund ic much decayed, to tliedis-
assuiance of nil the rualm, if need should be.
Hiai tlj«se tliat are nut muritime lowni ought
For those of Ed. 3.'s time, his reigo, for the
most part, was n tinte of war; and that the of-
fensive brought n defensive upon the kingdom,
is plnin. Walsinghnm salth, pace 119, 131,
lliiit 10 Ed. 3, the French burnt' Southampton.
And Stowe, page 934, suys, that Ed. 1?. 3, they
assaulted Southuinptou, and burnt part of Ky-
inouth. 13 £d. 3, ihn* anautled the isle of
Wight. Rot. Pari' 13 Ed. 3, part 1. M. 9, ihu
917] STATETRIAI^, 13 CH\KLKit. 1657.— in tlie Cox qfShp-Monty. . [itIS
^bej bad done mucli mischief in the nest-
couts, Biid conquer^ tbe isle of Guernsey.
Eot, Sco. W Ed. 3, M. 5, don. nad M. S, aiid
all the puits uf England were shut up.
Mj lords, in tliese yean irhereia most uf
these writs issued, the great danger a)ipears;
Knd yet tlint the charge laid upon tbe countji.
waa by by-l»w and tij^reemeat, 1 shall cite to
your lordship) ilieScotiah Roll, 10 Ed. 3, M. 3.
Tha French riding at anchor at tlje isle of
Wiebt, the king seutb (iTvers pri»y- counsellors
to IJorer, and cominanded all ihe ofiicers, man-
ten of ships, mnrinera and inhabitants, from
the Thamet moutb to the West, to come (hi-
ther, aii Iraclend' with those lords uf the coun*
dl for (be defence of tbe lea by thips ; and in
tl>e record it is cited, that notwitbttaoding the
kin^i fimnet' comiaand, ■ bnctenus quicquid
'. non facer* impress',' the writs for shipping is-
uied before and i«ere not executed ; and there-
fore now a commission, if so it ml|;bt be done
with content. 90 Ed. 3, other writs went nut,
Rot. Franc, pars 9, M. 34, SO £<f. 3, a. vnt to
Yarfnouth ' propter pericub ai«ris' to stop up
tbeir haven, and Rot. I'ranc. pars 1, M. 19.
that no ^hermea |!o out to sea. — I ilmll en-
deavour a particular answer to this. Ciau!. 10,
Ed. 3, M. 33, tbe writ says, that ' vniida defen-
' sioois super mare sulvi non solebant teropo-
' ribus pn^enitoruia' of the king. To this I
■hall give this answer, that these un^ were
deraanded before their ume of going to ihe ser-
vice; and the record is, AnjiuHOi^i varfiu have
not been paid.
My lord^, if this answer be tiot sufficient,
my second is by denying the tl.ing ; ibr besides'
that uf 15 Johao. in that time of necessity, the
■bips were to serre ' id liberatimies et ad sti-
pendia regis;' and 40 Hen. 3. xM. 4, boib in
Ed. 1. Ed. -i, and this kiog's time before the
tenth year of hb reign, wi^cs tor defence were
frequently paid. — My lords, because I l;now
not bow far thitwill be stood upon, 1 shall
■[»re [be citing of any of them, nnd tu this
purpose shall cite to your lordships only thi^
case. It is amongst the parliament petitions
1 Ed. 3, and transmitted into the Exchequer,
IJiL 3 £d. 3, dors. The (ishermen upon the
coasts of Yarmouth, W Ed. 3, were daily rob-
bed and killed, and fur restotis of them, those
of Yarmouth were commanded to set ontsome
abips to sen; and Adam Bridlington, the king's
clerk, sent with 300f. to set nut this fleet,
;i*hich tbe men of Ynrmouth intended ihey
■boald have ns wages Ibr the voyage; but the
clerk would not let tdem-bare aboi'e 'iSOl. and
that «f mnney borrowed of the kins, and far
this tliev gave tbeir bond of repayment llwreof.
1 Ed. 3, ihey complain in parliament, and
pray that they may be discharoi^d of the 330/.
and that the bond may be cancelled ; which is
adjudged Bccordiiisly, and transmitted into the
Excliequer for a trial, whether the service wns
done or not. — My lost answer to these prece-
dents is, tbat tbe matters of fact in these year!,
ta the violulion of the sul>iect; rights, procured
npon liesb snita, not only tbe bcfot»«MDtioned
stnmte of 14 Ed. 3, cap. 1, «!•>■■»( "*i cbnrgc
to be laid upon the subject wiihotit assent in
parliament ; but afterwards they complain in
parliament, 15 Ed. 3, M. 9, that tlieir goods
were seized, and tlicir bodies tnkeii without
ly suit commenced again-t them, contrary to
Magna Charts, ntid tlic statutes and ordinances
made thereupon with so ranch diicretioD of
tlieir ancestors; and in particular in the Parli;,-
-Roll of S2 Ed. 3, M, 4, for tbe tnardin?
ofihesea, and in 36 Ed. S, M. 9,and37 Ed.
3, SI. 2, as beforein IS Ed. 3.
My lords, I now coino to the last thing,
which is the Pruofi in the point, nhich I niinll
humbly ofl'rr to your lordships, . The first an-
tBority tbat I slinll offer unto yoar lordships is
P:iteiit-RoJI, so' Ed. 1, M. 31, whereby I
sball endeavour fo prove to your lordships these
*wo things : — The confession of that liing and
lis council, that he was so far from bfiviiit;
Miwer to tax (he people for the custody of tbe
«a, as that he is bound to make Entisfaction for
any thing taken from tlie people fi>r this pur-
pose. '1 he second, that tbe diarges laid. upon
the people for the custody of tbe sea, were the
piinclpal grievances that occasioned the making
of the statute of as. F.d. 1, and the statute of
' Tallagio non concedcndo,'
For the first that the king declares that In
had a desire to redress the Grievances made to
tbe people in bis name, and instancetb what
ihe)/ were, ' veluii de rebus captij in ecclesiis,
' et de sliis rebus captis et asportatii tain de
' clericis quum de laicls, give pro cnsiodin maris
' vel alio modo quocunque ;' whereby, my lords,
there is an acknowledgment that it is grievance,
and to ba redressed, lo lay any tux ui>on tlia
subject fiir tlie defence b( the sea. — Commi»>
sinners are ibere named tbrougliout all Eng-
land t« enquire of these grievancea ; Iteielti
they are to proceed according to certain in-
structions from the king and the council, which
ere these three : First, Whither the thing*
were taken without warrant; and if so, then
the party tbat took the goods is to make satis-
faction, and further to be punislied for tbe
trespass. Secondly, If ibere were no warrant
allowed, then tbe olticer was to make satisfac-
tion. Thirdly, If all were done according to
and in puituonce of the warrant, and no more ;
iben what upon certificate [hereof is, the words
are ' et enferra tant que il se lienera appais
' pur r^on :' The king hereby promiselb, time
whatsoever tiling were taken from tbe people
by any command of his for tbe custody of the
sea, (hat lie will make reasonable satislaction
these grievances occasioned the making of these
statutes, is clear from ibe words of the patent;
for they were made ' post guerram inter reborn
' et regem Frniirif ;'' which, as appears bv the
Case of the Abbot of Rohertsbridge, were from
the 3Qd to tlie satb of Edward the first, and
by all our hittorians, end many records. '' It ap-
pears likewise, by tliose oilier words, that tha
king, before Us goifig into FLindfrs, inteDdtt)
919] STATE TRIAI^. ISChaklesI. lOiT.— Tie King agairut John R<uipdm,etg. [929
fnDchi«», «re boond thereunto, that tbey
should do it. And liierefore ihe merdiBDli,
mastere of dhips, BDd manners, tlirooghniii Eng-
land, are sunimoued to be »t the neil parlio-
■aenl far advice about sliipping.
M;r lurds, ilie next aulhr>ritj ii rhe Piirlia-
mcui-Rdll, S3 Ed. 3, M. al. The commiiH
petition in the'e woids, ' que le guard de la
' mere so face deicrie* res soit le guard fit m«n
' ad lefait HDianc vis tenois ut aeiuDe que mel-
' liur guard ne pnit estre fail que le Roy ne lait
' ne qu'il demeritissent de U sur \» ^er ct par
' de &ir de c'est ter.* The ~ comniiMis banng
fbnuerlji granted the klu^ diTors Aid* and Sub-
tidies upim Wool, Wnol-felU, nrd LeiXlier and
otiienvise, for the euarding of the aeas, thej
now grew wearj of iL, and denitr, that tlie king
himself from thenceforth should tienr the *l>ole
hurden, and charge him with his pramiw to
that purpose.
ily lords, this Petition, ihoogh in the name
of iheconiraons, yet the lords joined in it; (or
otherwise all acts of parliament of those times
heing made upon Petition aod. Answer, should
he.wiihout the lords absent. Henceit apj)ears,
that the whole kingdnm, at this time, was so bi
from thinking that the king cnnid charge them,
without their conscnU, to ihe guardiaic of the
sea, as thai they aJledge, tbe'kiogbitnsclr ought
to bear the wnok charge. Neither doth tbe
king deuy his prooiise, nor wholtj deny the
thing ; for though he saith, it should be done at
il hath been done before, yet it it with a qnali-
hcation, because (he sea cannot he better kept
than ho hath kept it, by reason of his being so
ofteti at sea in person, in going and returning
from France, and diverting liie enemy by hboHn
in France. If tht! king had given his absolute
denial, yet here is thejudgment of both houtn
of parliament express id the point.
UoL Fmncite Vl Ed. 3, pars i M. 9 & 11.
The merchants had granted Si. Bd. upon tbeir
goods till Michaelmas, for proTidiiig 130 gr«M
abips ' pro secura conductione navlum et mar-
' chaadizaruu), et pro defensinoe ceteraruM
' maritiniarum partium regni, et ahis peticulis
' his ^uerrinis [anporibus regno imminentibus.'
This grant being made, the king allei^ing ibat
ibis was nut sufficient tor the service, and i*
reiuoie the causes 'uf the stoppiug of ih; trade
by reNMm of the iTnrs ; the king now lengtbeni
out ibe eajne from Michachiui* to Easter {tA-
lowing ; icd to satitfy the peo|jle, tbe king br
his proclamation declares, that the Si. Bd. dtsH
cense at Eniter, according to ihe grant ; which,
as i' should seem, nut sBtitfyinfl [be people, or
the king continuing the uking tfaereot, the can~
mons ill parliament, SS Ed. 3, U. 16, pray
thnt it may ceuse, »nd that by procurement of
no merdtaiit, ' pluis lorgeni toil continue.'
An imposition but for half a jear, and that
upon luerchandiie, and by content uiF the mer-
chants ibr tlte defence, jtl taken off upon com-
plaint. The Aitmer is, that it should cease.
My next euthoriiy is tlie Fartiament-Bi^
3 Aic. !, pars S M. 5, before cited, wliere tbe
great council and sagei of the kingdom ictolt^
(o have remedied those Grievances ; he went
over HI Sep. 95 Ed. 1, and tlie statute U Ed. ],
was mode the 10th of Oct. after. Hence like-
wise it Ibllows, that the exreption of the king's
antient aids and priits, mentioned in the sta-
tute of 35 Ed. 1, extends nut to this of charging
the people to the custody of the sea, that being
une of the principal grievances that occasioned
the making of it. That the same grievance
caused tha making of the statute De rallagio,
&c. 1 have before oSered to your lordships.
My lords, the next anrhuriCy nhich I slial]
orient is the Communia Hil. 93 Ed. 1,Iloi. 77.
Their the kmg commanded 3Dgalliestofae made
by several great towns, eveiy galley ivas.lo have
ISO men a-piece; tliese wL-re ' pro dffensione
' regni et securilaie maris.' My lords, the cases
are many in the Exchequer, where tliu money
for n>akiug these galiies was recovered against
the king. I cciufess my lords, that the king hail
promised payment to those that made tliem,
which I shall thus submit lo your lordships:
That in case the king might have commanded
the niakiog of them, at the charge of the towns,
that then the king's promise was bnt nudum
pa'.luiii, lor prnmismg of payment for that which
by law ihey might have been fon^ to do, and
so the payiiieut rested only the king's grace and
good pleasure. But, my lords, upon suits in
. his own time, and in the times of £d. U, and
Ed. 3, the taonies for making these gnllies were
received by several towns, M. 29 Ed. 1, Hot.
89. dors, for York, M. 31 Ed. 1. Rot. 77, Ips-
wich and Dunwich. P. 5 Ed. 3, Rot. 31, for
him ' wuni jusium fuei" nothing having been
taid liefore. Bract. M. 16 Ed. 9, Rot. 11,
oth for the galley mode at Snuthampton, and
the bringing her to Wiuthelsea, at their own
charge, Prascept, P. 1 Ed. S, all the luoney
from S<>uthu<i>|jtDn not being paid, now ordered
that it should be paid.
My lords, the next authority that I shall pre-
sent to your lordi hips is ibe Putliameuc-Rall,
13 Hd. 3, pars 1,,M. 9 & 11. The causes of
calling the parliament are declared to be these :
Firii, the keeping of the peace. Secondly, the
defenceof the marches. Thirdly, the safeguard
of the lea, that ihe enemy might not enter the
reiihu to destroy it. Tiiese were the three
points fur the coiomoos to adiise on, which are
put Into writing, and entered upon the roll.
My lotds, by the articles theniseKes propouod-
ed on the king's pari, it appears, Tliat the
commons are not chargeable to the guarding of
the sea; and ihe^ pra^,thHt this advice of tlieirs
may not be prejudiciul to them lo hind them
theieuiito, and that ihrre are ^ips enough b
Englaitd to do it, if the people were willing.
M. 11. Ihe commons nfternards in debating
of tlie^ articles, Hhentbey came (o this of the
sea, notniihslanding the caution before, tliey
are afraid, that it' ihcy should debate it, it might
imply, ibut they art- chargeable to do it; and
therefore thry protest against giving '
vicp therein, as a tliii - ' - • -■ -
CNgiiizaiice; nod do
Cinque Pons, and otb«f great tonng^ that have
931]
STATE TRIAI^, IS Ckauu L
charKeable to die de-
that the comninns i
fence of the retlm without parliament .
Ciiends to this particular of the sea, for the
ptctpntprrpambnn, whereuntotbacomniunSBTe
nut chargeable, was for del'tnce at sea ; and
therefore the morie]' lent whi b> provide >n
ann; for the sea, * en rielence et sAlvatkm del
■ dil Rujnlme et de la Navy eC dn costien del
Uy lords, the D«tt authoritj is the Pnrlia-
meot-Holl aHen. *, M. 13. CommiMions to
ohai)>« (bepeople to make ships for t lie defence
of the realin without consent of parlisment, re-
pealed b; the king aod the nhole parliament
£ir that very caote.
' Item par ceo quere carde diners Commis-
* aiam fueront foist an divers cities burroughj
' et Tillages du rnyahne pur f.iii« certaiiies
* Barges et Ballitigers sans aMent du Parliam'
* et out dil' pr' nad estre fast davant ces heats'
' nr* les Cammous pray nr' snr" ie Rriy que les
* dill Commifiiions soient repeals et que ite ne
' toi«nt forces oe fait n quore loir fnit respons'
' que la K07 vest que in le* ComnustiaDi soient
< repeals in tout pointi mea pnr ie grand neceR-
' sity que ad dea tiels vessels pur defence du
' royaline in case qua let queni sint priment le
' Koy vost CQrDoiuDer de rest matter'ouesque
' let Snrs' et puii apret le ntre' al' dits Cun-
' maas pur intisuner k>ir coBncel et advise tii^
' party.' The first commivion's repealed, be-
(aofe the conunODi were nut 'chargeable with-
ODt a parliament. And now tbe king will put
it in a parliamentary way, by doing it with tbe
aiaetit of tbe lords and commons.
Hy lonli, my next authority ii the Farli»-
ment-RiiU 9 Hen. 4. The cau&e of tbe calling
tbe pariintnent is for the safeguard of the sea,
and of the North Marcbet; and M. IT, great
mischief shewn for default of keeping tbe lea;
and M. 91, it it there enrolled by the king's
conmaad, that there was communicatinn had
between the king apd tbe lords for the defence
of the realm, and fnt resitting of the enemies,
who made preparations OD all sides; whereunto
tuflicieut resistance cannot be provided, unless
the king have in his parlisnient some notable
aid cranted unto him. My lords, the king
hereby acknowledgelh, that be cannot without
the parlianeot charge the people for the safe
keeping of the sea, that being the principal
pert for the defence there intended, the same
with the summon!, that 'without the consent of
the commons ' negotia prsd' iofecta rematie-
' rent,' and with the summons in the Close
Boll is Ed. 1, before-mentioned, * Quod oni'
' ne^ taii|E>t per omnes debet tuppurtari.'
My brfb, the nent authority is the Pailia-
meot'RoU t Hen. 4, M. SS. The lords spiri-
iHal and tenipoml, and the commons, grant the
king a Subudy upon the staple commodities,
Mtd I'onoige and Poundage, and likewise a
Tenth an4 Fifteenth, with this protetlition,
' Prtutstast que catt grant in temps avener no
' suit po'mt en eiiample de charger les dits Surs'
' ne Comuiins du royalme de nul manner del
' Subaid J le toth ne ' Itth a let guem* detco-
IS37.— «iibCu:^S&i>Jlf»i9. ' [933
' regates, 00 Mf^ard del mere sans soic per It
' (olsnta des Seifc' et les Commons de realme
' et ceo a novel grant taire in pleiiie Pnrtia'
■ ment.' Hot. Pari' 6 Hen. 4, M. 13. and Rot.
Pari' 1 Hen. 5, M. IT, ibe stuaepruteatalion as
My lords, that the charge of the defenr
id tliat in a large proporliun, by reason
Di ' ine before-tnentioned duties, is to be b
by his majesty, I conceivr
e borne
denied ; that in tubtidivm and aid uf bis ma-
jesty therein, the commons are not chargeable
without their consent in hill parliament. In
these three records there are not only these
protestations of the whole realm beingiuade by
tbe lords and commons, but likewise tbe kine^
consent by accepiiHg the things granted, and
that without any qualification of the protesta-
tions. Those protestations, that they are not
chargeable to the guarding of llie sea io a cer-
tain way, aS are lOths aud 1 jihs, do much more -
fail in a way uncertain ns here.
My lurds, my oeit proof is from thepraetici
if before the sCalutn of tonnage a
_ . as then and since ; moneys barrow-
:d hy former kings fbr ships and defence at
sea, and indwilures of retainer for that pnrpose
at the hing'scbar^; nnd notonly so.but upon
suit allowance in the Exchequer for victuals,
mariners wages, anchors, priioners taken tn
fights pro dtfemtont, and also other things ne-
cessary for shipping wlien for defence of the
realm. Whereupoti the same argument may
be made in this particular for the sea, as was
before for the defence in general.
The first thing that 1 shall press, is that of
the Cinque Ports. Their service is certain in
respect of the time, but IS days in a year ; and
in respect of tbe chai^, but 90 men and a
moiter ; and tbe number of ships certain : be-
sides that they are discharged of arms for tbe
land-service, they have likewise div«rs other
priyiteget for the doing hereof ; ibey were free .
from uJ aids and subsidies granted in parlia-
ment, and are by privy seab discharged there-
of Hil a Ed. 3, Comm' about the end of the
roll ; they ara freed from all tolls, murage and
poDt^a throughout the realm, which bringeth
a greater charge upon the rest of the sul^eclt,
— ^y lords, I shall thus offer it unto your lord-
ships : If they that have these privileges shall
serve but IS days in a year, bow the others that
have no privilege at all, should da it for SS
weeks, as in the writ f
Secondly, Their charge is certain in the
number of men and ships ; bow tbe rest of the
eommom thai are so far from having any privi-
leges or rccoinpence for it, as that they do con-
tribute to this chai^ of tbe Cinque Purts, shall,
as by the way in tbe writ, be altogether uncet-
tarn in the matter of charge, both in the nnm-
ber of men and ships, and of every nther thing.
— My lords, I iball press this furtlier, that when
tbe pons exceed their charge in the numlier of
men or ships, allowancB by the king is 10 he
»S3] ^ATE TRIALS, ISChmlbsI. I6,i7.— The King i^aiauJtAiiHiugtdm, esq. [934
taade unto tbem, as ap(>ean b;r '^^ Quire of
Dover, wid Pat. Roll' of 7 lien. 7, bsfore cit-
ed, tli at after tlie 13 days tliey wen: to be itt
the Ling's tbarje ; eo in the Pat. lioll' 19 Hen.
3, m. 14, because they found 40 meu la the
ship, the tiug (iromised pnymeiit for all over
and above t'le number of 20. Baoc. Begis
Triu. .S3 Ed. 1, Hot. S2, aUowauce to service
io Scotland ; the Scois, as apfieam by WaUing-
haui, p. 53, and otherwhere, having about that
lime burnt diver* English toivns and ships, and
a sclioiil-boiiic, niih SOO scbiriars in i^ Visus
Comp. P. 33 Ed. 1, pro ingenii Ro. Scotland
P. 34 Ed. 1, Hot. 37, Coniin' la Compoaition.
My lords, it' tlie pons Mho are bound to the
defence at sea, whcci ihey liave performed their
stn'ice, be not comptllabls to any further
charge, I shall humbly oiler it to your lordships,
whether those tint he not bound at all, from
the same reason, are chargeable at all.
My lords, I have now done, and ahall not
further press apon the pnlleuce of your lord-
ships; I know tliAt ' nullum tcmput occurrit
'regi;' the disuse tl'.ereof, I sliall press it no
otliernise than tliat it is au int^rpretalion of
the Statute made against all Aids and TnilUges
in general; and of tlie complaints of the par-
liameot nf IS Edw. I, m. 9; 3(j Edw. 3, at. 19,
and 37 Edw. 3, m. 9, that lliosc statutes had
uot iteen kept ; and further, as it is nn inter-
liratution likewise of the be fore- mentioned de-
claration, pctltiana and protertutions og^ust
this in particular; and as it is an execution of
tlieoi, and putting them iuto practice: 'Praxis
' sanctorum,' ns the divines say, ' est int^rprea
' prKceptorum.'
'Iho cl«ima which anciently the aufajccis have
made upon the cronn, that none ot the great
ofliccrs q( the kingdom cnold he chosen hut '
parliaineiit, iiur tiint the king hnd power to sell
any of the sntient crow n -lands ; the disuse
thews, that those clniina of tlieir's were not
legal. Br. in his founh book, fol. 309, saith,
lliaC ' longa palieQtia trahitur ad consenltim.'
The non-claims therelbre of sumany kiuesBud
qaeens.I shall present unto your lordsliipi, ns
ID many U voili and deciaratiotis of tlieir ge-
iierftl consents, tluit without assent in parlia-
ment they could not have laid the like tess
upon any of ibeir lubjecti, a« is now kid upon
my client.
The first Day's Argument of Sir EDWARD
LITTLETON, knt, his Majesty's Solicitor
General, iii the Ek chequer- Chamber, be-
fore all the JudgL-s, on behalf of Ills M*-
JESIY, in the Great Case of SniP-MoNEr.
May it please your Lordships ; May !I3d Inst,
isfucd a Sciri Facias out ot' the £xcbeqaer to
the sheriff of the county of Bucks, to warn Mr.
.Hampden to shew cause why Uie SOi. should
not be charged on him towards the tindii^ of a
sliipof war, witfa ineo, munitioo, and victuals,
expressed in a writ dat^ 4 Aug. II Car. And
the fum*.and the names of the detiwilten were
Wrtitiad into the Eicbequer by a Mittimus,
dated 5 lAay, 13 Car. to be there proceeded
upon for -the levying of the SOi. according to
the law and custnro of England : Mr. Ilauipdea
appeared, ami desired that all the writs m^ht
be read unto hiui ; they being read, be de-
murred, and Mr. Attorney joined with him in
d^uurrer, and adjourned out of the Cichequer
into this court, to have the advice of all the
JudL^es of England.
Befoi'e i enter into my Argument, because
the true stating of tliu question in this and all
other thing) doth exceedingly conduce to the
clearing of the tiling in question ; I thjil in the
lirst place, observe the writ, dated 4ih August,
11 Cur. the ground of ihis assess, which wa>
directed into Buck*, and others inio all the
counties of England, and this was for railing
aids fur ships, tiir (be defence of the kingdeoi,
with a notable circuinslaDce, ' quia sains regni
' pcriclitabalur ;' wiiicli being expressed in the
record, is confessed by the demurrer, and not
only so, but testified by the king himself under
tbc great seal in the Mittimus : and in all mM-
tei's, especially in matters concerning the iiub-
lic safety, the king is ' Recordum saperiativum
' et prsexcellens, as in ihe great Caae of the
earls of Gloucester and Hereford, SO Edw. ],
so that the question is only this. Whether the
kiiig, in his Judgment, lindiug ihe^fetyand
preservation of tlie kingdom and pensile, neces-
sarily aiid uoavuidably to require tlie aid com'
monded by (he Writ, may nut command socfa
aid by the Writ, lor saving and preserving tb»
kingdum and peopk?
Having stated the question, I shall now die-
curd many tilings as impertinent to tl>e ques-
tion, net that 1 that am sworn counst;! for tbe
Ling, do f^ree in those things against the king;
but that they are not now in question. It '»
not now in question, What may be impoaed bj
the king upon the subject for Defence, at (heir
charge, for conqufit or conservation of foreign
countries or territories beyond tbe sens. Nei-
ther is it in quesiiiin, what may he laid by tbe
kii^ upou hij >ubiecis, for rindicatiii^ iniDhn
done by foreign princes or states. Neitber is
it in question, whether arbitrary imposiiinns or '
taxes mny bo laid ot pleasure upon the suhjnt
for tlie mere increase of the reienuE of die
king's treasure. Keitber, whetder ia ordinary
and comiuim dui'cQce, for prcserv.ition of the
kingdom, though aecessai-y, iLmay be thus iia-
But the question is, ' Quanda salus reRni
' periclitabalur i' in truth, the question i% nhe-
tber we cin be charged ' pro sslvatinne nustr'
' et nostror'.' j\gnin, it is not in question, whe-
ther ths subject, hath a ;iroper(y in his Eoodi,
orcanlose them without convene ill parbamenb
I shall sliew (hat liis profierty ^inll remaiil unto
him notwithstanding iliis assess; bmI the ail-
ment Bii the contrary saionrs iDorebfmali^iuty
than re^isun, to my that by this ihe subject
thiill lose his prnperty in Ins goods.
It was riulitiy admitted, that tlielsw of pro-
perly must give place to the law of nature, for
(ha coBiuian defence ; the levying of m debt
9S5] STATE TRIAI^, ]3 0HAin.EtI. IGSl'—itihe CaieqfSliJp-Mojuy.
[926
or datjr (niblic or piiraM, upnn an;; lubject, is i
M&r trom 4l<strojiDg the property, that it doth '
confirm iL tie h>th as good prnpertj ihat
pajeth debt} lo the king, »s he that doth oot.
We agreed ie re, the kingdom is to be de-
leuiled; noroaa in hit five tenses will den j
th«t depertonit, according to the equitnUa rule
in tl» writ '. quod umnes tannic per oitines
' debet MipporlaH:' we arp in tbis eu in the
Conquen»'s laws, ' summ fratreg conjnrati ad
' regnum defender dum.' De ftrwona nhom
the law hath intrusted nith the defence of the
kingdon, y'u.. the king, ire arc likewise agreed.
The udIj diference is rfe niNfo, uhetlier the
rieht vicdia be obserrcd by th<( kin^? nnd
whilst irtt nre diiftuting whether he may do it,
1 BIB told he may do it in parliaineiit ; true, be
that may doit every nhere, may do it in pur-
limnent. And I thai! be sorry to hear there
shall be no salvatioD for the people but in prir-
liiuuent.
- And whilst this was the (Question, though a
great deal of care was had, nod thnugh it wns
done with advantage and policy, yet the bulk
and toata of whut was said, shall appear to fall
quite off as nothing lo tlic purpose. There
ver* mukiphcity ot patticularg, and a pretty
survey of the king's revenues, no wny»concem-
iog the case, And es much miituken in it, as he
that reckoned n ithnilt liis hnst. He hath done
like a discreet gentleman, nnd went u nenr the
question as his client would let him; he hatli
agreed cases more prejudicial than this, as
thus: It was admitted, that if there he any ac-
tual war, though there be but light skirmishes,
the king mny do it; nay, if there be but a war
denounced, thoui^h there be never a blow
Mrock, surrly then can it not be doue when
*«a!us regiii periclitnbatur?' This is the true
state of tli(.< question.
Before I go further, I mn not ignorant, and
Ibeivtbre cnimot but be with Hlintdi^advuiitnge
I coflie ta argue this cnse, eiery mnn bciiift a
party interested that hears me; bnt Ifenniot
but that I shall satisfy all parties, I have truth
to conduct mc, ' £t magna eat Veritas ct prte-
■ The method nhercby I may maintain the
right of my master, nnd the crown, is tbis ; I
bliall hr^ grouud it ujion renaon; every human
propojitton is of equal authority, only reason
makes the difference, — 1 shall ground my rea-
•ODS, First, upon the lawofnolure: Secondly,
of state; and Thirdly, of jiuhtic safety, neces-
sity, and contenien'cy, Neillier shall it be
against the statute law, commiin law, or any of
llic herediiary rights and liberties nf the subjects
of England, hut consonant tu, and wnrrunied
by all. 1 hhall not onl)r prove it ' ex ratio
' bns cogemibus,' or as lawyers say, ' ex v
* ceribuB cansz,' but ' de similibus nd simili
I sliall cooGrm it by n beadrolt of txnraplea
and precedents of former ages, .and compare
them wiih this, and see if the ease he altered.
First, I shall thew it from tlic foundation of
the kingdom, lo that which tbey call the Nor-
Mau Conquest; from the Noiraito Conquest
to the time of Mt^n Charts, made 9 Hen. 3,
from Usfna Charts lo the statute ■ De Tatla^o
non concedendo,' made Z5 Ed. 1 ; from llie sia-
tute ' De Tallagio non ooncedendo' to the firjt
granting of Tonnage and Poundage; tram Ton-
nage and Poundage to this very dcy, and thnt
the Petitinn of Right doth no ways coucera the
dispute. I shall confute al) precedeuts, objec-
'ions, reasons, incunveniencie*, authorities or
ecords, of which a great number were cited,
that there shall not be a syllable left ; aod in
that, First, I will either shew that llie record it
mistaken, or impertinent and not to the ques-
Or, Secondly, Those thai are pertinent, I
will either agree them, oT take the foicc of
awav, tfiat none ofthcm shall be able to
stand in the way of the king in this way of de-
"nie fundamental reason is the exact rule of
the law in the lOlh Report cited by that learn-
ed genttemen Mr. St. John, ' salus populi su-
lex.' All other laws positive are sub-
to this law, and are to he regulated by
are not to talk of positive laws, till
to use them. Glanvile
I non solum armis
1 ecle^ibusi' arms
; have a kingdon
' oportet esse decora
to defend us, laws to protect u
Ir In ' regibus duo sunt necessatia, arma ct
' leges ;' and gives the reason ; If no anus, the
kingdom would Le left as a prey to tlie enemies.
And truly it is a strange imposture, that the
law should so proviile, that the king by his writ
can give us a remedy for whiie-apre and black-
acre for a clod of earth, and nut be able to
give a writ to defend the kingdom when it is
in imminent dnnger. Nay, positive laws are
abrugated by reason, wheu the safely of the
kingilom and people are in danger. As in
Rome, in the nubt a man might not come over
the walls, but it on enemy did approach th*
city, then it was lawful for Iiiin to do it.
ill the next place, I take that grnuni) which
is taken in all lawi ; the common-wealth is to
be preferred before all private estates. 13 H.
3, lo. 15, the opinion of Shelley. Hathcr than
this shull suffer, the law will turn some preju- '
dice to particular pertons, who are but a part
of the common-weal til, 21 Hen. 7, fu. 28, 8
Ed. 4, fo. 23, 39 Hen. B, Dyer 36. If the
enemy doth approach, for the deft-nce nf the'
kingdom one mun may make bulwarks and
forts on another man's soil, and shall nut
the king 'keep the outworks at sen, lest the
enemy should land at our door^.' Again, by
the king's command, suburbs may be raxeil :
In 168B when three great ]and-arniie<, 30,{X)0
foot and 1,000 horse, 30,000 fuot and t,000
horse, and ao.OOO foot and 1,000 horse were
rai^d. Non lest any army should land in
otlier places, directions were given to keep
them from landing ; but if tliey could not keep
thtm from landing, then thnt they should burn
down bougies, and come nnd destroy all nhat-
soever, that they might not ii:ive food and
provision lo stay there. Where it (he law of
property in this case, which is so mucb talked
92T] STATE TIUAI^ UeitAkuuI. 1937.— The Xing agaiMtJ<AkILaipda,et(i. [«S
«f ? The puUic and prirate are so nearl;r «on-
Bext that the; md naitll; be separated ; tbe
puhjic Ion falls immedialelj, and bj t;oiiM'
quence upon particular p«r90M. ' fie a mnn
in what condition he would be, if a public, loss
comes to the state, thouglj it fulls on hU wed-
ding-da;, he shall suffer in it. It is impossible
to save prirate fortuoes if tbe pubHc be lost,
< unaquoque amac' comm' bona totius, &C.'
And anolbersajs very well, nn man repines at
that which is done Ibr ihe good of the coramon-
weullh. If ■ subject then cku be enabled
without parliatnent to make bulwarks and forte
in another man's ground, shall not the king,
that ii pater palriic, do the like for the defance
of tbe whole?
M; third reason is to confirni,or rather mind
your lordships, that' the crown hath maiiv
^*ei9 and prcrt^atives over the estates of pri-
TBte persons. May not tbe king enter into
anotlicr man's house, or at least out-houses,
mnd dijj for sall-pelrc, he<-Biise it is for ihe de-
fence ^ It Report fo. 81, Bowles case, and
enter into bis lundsand dig royal raiues?
There is proprieitu dominii belongs to the
subject, but he haili not the power over all,
wiibnut ihe property ■ Rutione pmtectionis, ju-
' risdiciionis,' dc. Private interest must give
place to n common good ; tbe private prejudice
that niiy man hath, is very well repaired by tbe
public utility thnt comes to the kingdom. Fisher-
men inay justify ihejr filing into the lands of
others t<i fish, because it is pro bono publico. 8 E.
♦, 18, 19. 99 H. 8, Djer 36. 21 Hen. 7, 28. A
man may puU down the huuse of nnuiher man,
when the next house ^^ it is on fire; ' Jnm tun
' res Bgitur paries cum proxlmus atdet,' the pri-
vate must suder for the public cause.. 32 Ed,
4, fo. a. b. S6 Ed. 1, fo. 45. If two in^n arc
figfaiiug, a man may pnrt then), and put them
into sevornl br>uscs, because it is fur tlie gooii
of the commonivealtb. If a madman be abroad,
he iDBy be taken, whipped and imprisoned, Icii
he du violence to himself and olliers. 22 Ed. 4,
fo. 45. A cbinirgeon may cut oif one member
to save Ihe rest, 33 Ass. Plowden 56. Neces-
' sity is tbe law of the time and action, and things
are lawful hy necessity, which otherwise ore
not ; ' Quicquid necessiias cogit, defendii :'
and the law of the time inust tegulnte the law
of tbe place in such public thiniis. If a storm
■rise at s«a, to can out goods into the sea is
lawful for the safely of the other goods : and
they whose goods are not lost, shall be
■harers wiih the others. If it be fur safety
of lives, nit niuil be cast out, Dufleild's and
Mowse's case; but if tbe party haih taken
more in than is liitinit, and th:it he the
cause of casting away the goods, and nut the
tempest, there the party hath his remedy. 48
Hen. 3, there was a sudden summans to be ii)
arms bolb al sea and land ; they plend, that
(here wns not a just tjme of summons; the king
(ells them, thai no man shojl excuiie himgeir fiir
want of coavenient time of summons; iiny,
they shall nut alledge the time of harvest, &c.
it being saiei to b< somewhat dimiai»beil in
estate, than (he public to tufier : ' Necewhtt
' est lex temporis,', whatsoever ia done for pub-
lic safety is hett; other laws are tributary, and
must give way to the law of necessity : What
talk we of formalities, nheu we are like (o low
tbe kingdom, when the keeping of the laws
would end the comuonweKltb.
But this needs not, fur I shall shew that \af
scepter of this kingdon
In the next place I shall shew divers eiemp-
ttons i cuitodta mariliina, not only ancient Init
late : I will put you one, that is, Kidk's College
in Cambridge, SI Hen. 6. When these gnaii
are made, it ex^ndi to the ocdihaiy deduce of
the people, and not extraordinary; no toore
thau if the king onint* an exemption to a man
that be shall not be of ajurr, yetif therebena
other, that shall not excuse him. Matth. Pari*
838, he ipeaks of privilege* granted to the etcb-
bishop ot Canterbury, Loudon, £cc. AU arc
gTantediniiieramf^enKnyixna; they are bound
[o do nothing but to pray, and yet are oot ex-
empted from public defence, ' Nee adeo liber-
' tates et propter publicam utilitatem rceni et
' per ea resisteret hostem.' I shall give Mr. bt.
John's Argument on answer by aud bye ; yet
by the way, if tenures/eiHf Mililar' did begin,
as was aliedged out of Brition, in the Cnoijite-
ror's lime, how vres the kingdom defended be-
fore? If wards and marriages, and accidanis
thereupon, did not go to tlie foundation of the
kingd
whatw
i before P
'I'he king is as much lord of the ten u land,
' xque dominus maris et lelluris.' Seldea Mara
Clausum, 6 Hic. 9, Doctor and Student, lib. 3,
to. 51. 5 Report fo 1U8. It is observed by a
great lawyer, of whnt consequence it is to haTr
power at sea. The naval dominion of England
IS of great consequeuce and use; for it is called .
dotcm reg»i. If therefore tlie kiiigdom of
Englniid consists uf land and sea, I l»pe
we Biiall not stand at half defeucc, to de-
fend the land and leave the sea. Riot. Pari.
t Rich. 2, M. es. Il is a great adtanlage to
have defence at sea, else we should huie bot
war at our Inreshulds ; while the sea is open,
men may go to plough, and have tlte courts of
justice open.
Tlie kings of England of themselves, by their
prerogative royal, in limes nf war, denounced,
intended or inspected, lor the preservation of
(he public safety, may seiie the lands of prior
tkliens, il Ed. 3, fo. 10, ga Ed. 4, 43, 44. 14 H.
4, 3S. And cim a king of England take the
possessions of aliens, and cannot be inforce his
natural botu subjects to defend the land and
sea ? God forbid ; nay, if .we would part* torn-
poHere aagtiil, we should find in cases of lesistr
consequence, if they have lelatian.to the de-
fence, he may da it. As the king may lay ts
charge upon the subject for walling n town, tba
rentciu is, because they have benefit by it in
lime ofdanger; and bath nut all the kingdom
safety by the uvry at sea ? 3 Ed. 3, Ass. 445,
Wettm. 1, cap. 3, 13 Hen. 4, fo, li, li, Su
089) STATETitlALS, J3Cm*io«I. IGW .—in the Que ^ Sh^MontS- [838
m. 19, Atn. 3 TIcn. 5, 18. don. ' A nnnbcr of
other ildngacoipnianded b; the king for lafetv;
w])ei) the law coiiiident what may ljB|ipen, it i*
not material wlmtdotli happen; imy, if ihtre ba
but a Bulgaria opinio, it is enough ; uiucb moce
nhcn ihe king, by liiiown jndgiiient, Ibreteci
it. 6 Itepfirt ia. 64, Clark's case, there the;
are cmnpdled l<i build ft hail nt St. Albans fur
ihe judges to lit in, moch more in ihii CB»e.
See Clegftle's ca<e for triumpliii; and if tor .
stale, ahiUl rint the king conminiid for SHfeiy of
the kingdom P Ilil. 13 Jac. llnwks's Cd>e,' Tor
paving of the vraj, he ninj inke corn oul of the
sack] of (boK thut come ■•;.
Aguin it ii a Droit lloyul to ined.lle irirb
war and pence, subjects have li'itlilliK lo do
*itb it. Hut. P.iri. 13 Erl. 3, M. 6, 19 Ed. 4,
fo. lao. ot 6. Brian, chief justice, saieh.Tliai iF
all thp subjects of ELu^iind do war H'icii tl)e
subjects of another kingdom, this is nu «ar ;
but ir the kiog denounce it, it is war. U9 Ed.
1, Itot. Vus. cua. M IS, or 10, the; must.hnre
a powpr from tiie king ! trup, HenrJ 7, brought
milicncy discipline tu the parlininent tu ndvunce
his ovru ends. Sumetinies dangers are fit to
be coniinunicnted f) llie people, and someiiinei
not. 'J'be king shuuld best know what ii dona
abroad, wholititli liis close council of war; he
knoHs what is done abroad.
Jolm DaYiei' Reports foi 13, littl. (b. J8. 33
Edward 1, loa. !'aVl. Bonk, Waluingham,
14 Edward J, -flO. 7 Edward 3, Pat. M.
t. And (he king did not only eominand it,
but took no account of it, if it wiis nut door,
Md took it iiito Jiis own bands, 1 rin. il £d. 1,
M. 14, ex thttuuf murage uf Carlikle taken
into tne kiag'i hands. Pat. 14 Edw. 1, pars 1,
' M. 14, and the surplusage paid into ihe Eiche-
quer. And this agrees with the reason of all
laws, flbere they have [i beneGt LUey must con-
tribute to the charge, ID Krport, fo. 141, out
«f 44 £d. S, nay farlesstr tilings, as t'lfrpaveage
add fionta^e. ibe kios may impose thut liir a
public good, and tlteliing may distrain all tiie
ttrr' ItHtatt, aod land-otnera, tu make contri-
bution ■ Ktmndu!!) statnm et fivjultales.'
Tlio king jnay disposie of the preparation for
defeoce, tie may compel meo lo b« kn^hted,
because it was fur defence. Rot. Claus. 19
Ed. 2, M. IG. Mat. Paris, lii. 19. 37 Weato).
4C3, 00 man is exempted from delcnce ; judges
•re not exempted, yttjgdges are not to fight ;
yet when it comes to necessilv, tliey are not ei-
empied. Trin. 5 Ed. 4, Moyle 13 Hen. 4, fo.
as. der^'ioen (impelled ; nay a Serjeant at
coromonlaM sworn at common picas, it com-
pellable. Sir John Ilulbertiu lien. T.'s time
was compelled lo be a knight : 9 or 39 Hen. C,
Rutfe, a stuut seijeant, pleaded that he nasn
Mrjeanc ai cOLiiiaan law, and not tiuund id he
■ kniiht, but he is forced to it. Hut why tidk
weot'tbeaa? there ought lobe ftcominon"ea]lh
before (here are laws, and private ought to
Again, iiiimiDeiit dangers and perils lo a state
do dispense with ordinary proceedings in law ;
' inter arma silent Jrges.' Niy, if there be but
rumours of wan, laws are atliaiE; wewuitlouk
then to the kingdom, upon rumours and opi-
nions of wars. Pasch. 15 Ed. 1, Banc. Regis
Hot. '70, dors, the Scotch army they besieged
Kippon, llie people they promiae a sum of mo-
ney to them to depart, aiid give them in hos-
tages, and that money should be levied among
themseUeii when the war wag over they would
Dot do it, but were oompelled lo it. In 14 £d.
3, Banc. U«|^B Rot. 60, the Seals besiege Dur-
ham, hut thiy must have ready money, they
would not lake hostages vi depart ; while this
peril was on them, ihey met tugeilicr and swore,
Hint nhat ilwuld be agreed amongst theineelves
erery'man would ttnnd to. It was ordered they
■bould go into ilic houses of nlliers, and tska
what money 1 hey could tind for that purpose;
tbey took from one man 60(. ; oh, he was not
eoUsfied, he had a property in his goads, he
brought an action, and at Durliam it was ad-
judged for him ; but when by q writ of error it
was brought to Westminaier-hall into the King's-
Bench, judgment was reversed. And in the
time of queen Elizabeth, greater tbmgs were
done upon lesser occasion!.
' The next tiling is the ships taken from time
to time, and the command of persons, watches,
lieacuns, shutting up of the poets, which are
tbe gates of the kin[[doiii, 14 ar 10 £. 4, Palch.
vul. HI. >
thut preparation be made befiwe-hi^iid.
not good tu fin^ tlie kingdom without a navy,
especially when such combustiin K abroad.
Itl Elii. cap. £3. It is OS much to prevent
danger, as lo remove it when it is in bemg. 1
Ed. 6, et 1 Mar. A desired provision to be
made before-hand, and this hath been t|ie
practice of all times. Gerrasius Tilburiens.
Black sBook Hen. Sd's lime. Danegelt before
the Conrjuett paid annually ; but afterwards,
when tlwre was bellam or upinidnei bttlonait,
' Datum est nobis intelli^ere, audito rumore,
'&c' arefrequent in tbe records; nay if there
be but ■Biilgarit opinio. Ay, but perhaps dan*
gers will not come; but if they come unawarea
nliere are we then i In the case between the
earls of Gloucester and Herefurd, there was a
great luinult between Iheni about the marches
of Wales; and this was contrary to the king's
command, and exception was then taken; that
there was lio record to warrant the Sciri Ft-
cias [Na' que fuit pur sHlvatione del Uoyalroe.]
the kipg did affirm it, ' Et J)ominua Rex in
' multus CDsibns est supra legem, &c. Doininus
' Itei est RecoT.lum superlutivnm et praex-
' cellena.' It is treasun for any subject to
raise an army, unless a town be bended.
Henry the 7tb was a wise king, and he had his
spies abroad in times of peace to see how things
went, and his army prepared ; and the prepa-
ration of a navy docs much more good than th*
spilling of blood. And so hath our navy these
two years done a great deal of g'>od to the
kuigdoni, and honiiur to the king.
Now I come to the authorities : bat first we
iball observe what an authority ahall be in this
case. First, I conceive tbna mny b«, and ar*
dir
Oil] bTATE IHIAI^, ISCu^ilhI. IGSl. ^Ih: King agaiiut Join Htmfdtn.aq.ivat
that bt irould rdeate u u hii ooronatiait, bat
' nihil borvni lenuiLi' naj, it »n paid is
Henry the SJ'i time, 4 Hen. 9, I'ipc Roll ( aorf
though the name be alierad, jtt otbei UuDgp
i(i Tull eianplei in pnint, foe compcU-
ing llie sahJFcis, at their own chikrge to guard
tli« «eii and lanrl, though they arc not raicd in
particular couris ol'juMice ; nay, under fdvour,
tliej are Etrubger ihao uiy jud|[nient : ihere
were ilieii no nted of auita iii ihe court* orjui-
(ice ; il' men tvould par, what need juHt;-
meiiis? Secondly, I ccinccirf, that though I
Gild not diiect nuihorityin printed booki, yet
records are as gi>nd tesiinionies, and greater
than report!, ihHt are but e\tract3, and second
authniities dranu out of llwin ; and those thai
concern ' Jua Pubiicum,' oime not into ordi-
nary debate, but Tciuitin ■inierai'cana Imperii,'
and (IwMC will spuak fully. Thirdly, I stiili ob-
Mtvu tli.it iiur prectnlciits are not only in open
war and hottilily, Iiut u[xin opintoiu, ruiuours,
relations, aik-l intbrinationit ui wrra,
I shidi iliL-n thi; in all o^es to queen Eliia-
brlii'i timu ; uild if it be not so full in the
)ean of Liiif: .Stcpiit'ii tiud Henry 4, wiio nere
u'lirpcrs, It IS no trondrr. If tliey liad kid
riiiht t(i ilic croivi), as liis mnjfiiy hath, they
VMitld nut lutxu u^L'd couipliiucnu, but ' Fide
0 co-<^erate with hi
' pt'r tcrmm et per mare.' King Etiielred be
did cDiuaiuiid, that he tliat hail 310 bides of
land ihould find a ^>ip, and thnsc that had
k'-sei-, sbuuiJ fi ad oilier urm3,uud at lUeirown
thin eigb: oan, ' ut ti
a Caniitu! : and it wa*
butu.ii Clas-slnlc.
My lordi, for DaneKt^'^i if those kings tbat
were called in by tlie people did Iny this on the
people, much more our nmurul-burn kinc,
*bii.h th'uHS it to be an ui.douiited right; for
il is not likely ilicy would imt that in practice
whidi was i^t nn undiiuUit'd riglit. In the
LinioI'LheCkinft-bdir Iiy2tlr. Tjmibert, ondthe
D.Mk llinik ill the E^ilii quer, it ivas sometimes
one, tuinttiiics 3j. niuiiiailj, in um Maritin' ;
and stilt tlic ch.ii^:c liei on liie subject; this
was paid f»r joieiul puipi.ses, l.ui si ill at the
»ul jtTH cluir^'e. And t.. say it slniuldnotbe
so liecftu-eut iJie word ' stMu[nm(Uc Kegibus
jllit;!i:e iiLLliiiu|a)' cannot be, fur in ibuite times
I'tttulttw, Us in. Cicrro, Has h ccinsiitutioo,
tlirre Has no psrliamcTit thi:n; and if it now
doth alter friim thut way, truly petty circuin-
Mance*, when tlie iub$t:uicc is ohservtd, alter
not (he case. There must be a dtft'iic, nnd
it was not ceruiin ; doih not the dagger ' sus-
* cipeie m»jus et minui?' und the king may
say ua £ilward the first tuid, nay, I hai^e heard
b^m say, that he hath bought neitbor tnanon,
)aoils nur ciutles nitli it,
Alter tlie Cnnquett, Oanegelt it suppoaed to
be releued by tlie (.'ooquerur, becnuse he
dreamed he snvr ilie de>il dancing upon the
Dnnegelt; but the Black Book saiib it was
pnid III the Conqueror's time. It nas tlien
^uilIcd, till there uns iiUum or opmiotui tel-
irum : nrilhcr nas it feluased by William
^ufui, or Benr^ the 1st. Kiif S^ihcn Bwure
And nevr 1 will begin Kitb Doomday-Boo^
which began in the I4th i>f Che Conqueror, aod
ended tlie inentietli jeor. 1'beie were tUi-eri
tiiwns Dud sbirei chained, and there we M*
what nssistance they did ^re both ior tea aad
land. lu the Black' Book fo.»e, he ibatw«itt4
ou tlie king's revenue, * liber nuu eri(* for pub-
lic tlii 11(1. And in, king' Jflhn'i time, itbch
was a troublesome time, i Jobannis Vu. 11.
17. and Jtibannif Claus. U. 9, they gave m
fourth part of their revenuea fi>r defence ; aad
tliete was a command lur ttaying of all tbipi,
and to repair to a certain placa appiMoted.
Aad to come to those great things ahenkme
.Tohn was deposed by tlie pupe; the kioK of
.France made prepariition, and the king of £i^
land made preparation, and all ship! were in>-
breviuted because he ivould not put all wpoM
hiud-ibrces: and so in 1538. Mat.rafis,fb.311,
it is said, tha people were ' ad liberatiiiiH^
' nostras;' but that Toya^ wn* to f oiouia ;
if it nere ■ ad liberatioiiM nostra;' yet the
command of the persons and shiin wbm the
king's; aud true, all mariners were to be paid,
antT no question iinnedintely M the king's
hand, but it wa« iriC raised and leniad of tbe
Wbareas for escuage and kDi^i'*.M[vice,
tbe sumiuont was ■ quart intenkis cum e^sii
* et iirmis, &c. eiinde proficitcend' nohiMam ;'
but this wa« only to come with their hone* and
arms, by renson of their tenures. And it ftv>
ilier appears, tliat eaili, barons, kni^la and
freemen, and all ibai Itad arm* were to coac
ad defendeudum caput suo.n etreuis, et quod
nullus
mnnejlt q
, those that had
portare [
and if ibey had npihiug t»
tlieniseUes witlial, they were to b«
' ad sulidiUos nostrot,' n'hicli shews nil the rest
were not at the king's chaige. j Johanoia
Claus. M. 1. ' Quia ad anna jurat vd qui iio-
' nurein poi*' :' if llie king could coiutnanil fur
laud, he may fur sea, fur both are nne kingdiUB.
hi Henry tlic 3d's time there are divert nrTaya.
U Hen. 3, Claus. 7. dors. When ilie kn^
went into Frauce, there went a commaud tu
all the slieritfs of England to sMnr tboae tfaat
staid behind, as they ware s^«orn in king John'*
time; all clus gbcns they were bound toarma.
In the statute of the Conqueror, which tb^
styled a statute, that there should be b« taiti
lage, tailloce must not be understood of tbtNM
kind of aids. That fnmous year of 48 lien. 3,
(and observe when) ibnt year is not only after
UagnaCharta,hut nfteri t was confirmed by Ih«,
90 H. 3. when he wm uf fuU a^. 48 Ed. 3.
Claus. M. dors, divers captains and otben not
able to maintain thBmseWei,ihe king coM^aiKit
they Ebould be paid. De Ceaun ComilaUn,
48 Ed. 3, M. a, ' rie pecunia levand' circa ti»-
' li^ueni in^il,' tlia king mmiifiipik thf— ^ f}.^
MS) STATE TRIALS, ISCauLuI. IBSn .--a lit Out df Si^Mni^.
thtj should come out sf their coonliei
lummoa* is Iwo-fukI ; First, of *»euiige, which
i* 'secuoduui dcbitum.' S«condlj, ){ener.il foi
d^ence, ' cum oec«s« fuerit.* 4B Htn. 3,
CUui. M. 3, pro mijitib' Saricu Jobanais vt M.
S, doc*, 'quod omnescjui tiubis et coroiue iiiiv
■Ins jure Bitringitut,&c.' all freemen must do
tliU lervice. 48 ilen. 3, Clans. M. 3, dors.
' NuUu* eiciudnlur teiui vel ordo.' 48 Hen.
3, CUin. H. 7, the citiieiu of London, and t|j«
nes of Greenwich, were commauded io keep
tb« Thamei thRt none thould putcr pn- ora eo-
rtmt ; tlie tneii of Urerawich pleid, llut ihey
were dlEtraiued upon comoion aummoiis for
ibeirMrvkeinKent; and the king camoMnded
they thduld be freed in Kent, and join in
de&nca of the Tbimrs. Claui. 48 Hen. 3,
M. 11 dnr*. to eicnw one who pretended lie
did attend at another place with all his
•trength ; ibit ijiews that he oogliC to (tiend
the defence : naj, 48 Hen, 3, M. 4, when the;
refuied to come, the king cominaLided lo seiie
their lands, aod lake the profits, and answer
them into the Bichequer. 48 Hen. 3, Pat M 5,
be cDnunands them to attend, lettinit alt diin^
•part. 48 Hen. 3, Pat. m. 10 or 5, like writ Co
Ipawicb, Duver, and ' per coslera inar'a ;' nav,
whan some went awa;r when their 40 dkji were
«ipircd, the king tells (hem, that ' pnipterinopi-
'lutaicBusas/theTsfaoalditB;. nu.lsHen.S,
■1. 4, one buodted marka b; the abbt't of St.
Ansiin't for stipends for those at sea, for df-
fcnce of the sea. M. 3, dor*, when tliey would
hare pine awa;, ther were commanded upon
pain offorfeitureofalltbeip had, tostay. Bract,
lib. 5, To. 33S. ' Cum fuer' in eiercitu cum
' domino rege,' he. apealiing there of law suits,
what maj be r (ood excuse for absence, saiili,
■ ei causa necessitatis reipublica causa, auc
' cnni rege in annis.' In Che time of Edward
the first, statute of Winclieiter, ^din|; of arms
began not upon thnt statute ; but how, «u)d in
wlwt manner tbr* ought to be raced, was there
appointed. 93 £dw. 1, claui. m. 4, ' de con-
* tribatione faciend" Co Yarmonth, a command
to the odleciort of n>oiiey ' ad cuitod' mans ;'
and bf ihat Ha* in Gncoi|;ne was dischaiged of
Brace, bat not of right. Put. 33 F.d. 1, m. 4.
* Ibt ^nod omnea camptllere po«siiia ad cuiCod'
' nan* cum necene fueriL' Pat. 93 Ed. 1, tu.
<. ' pro Willialmo de Sloake* fuer* custodes
' naticimx,' etm. 5 ec 7, ■ cuscodea maris de
' Jememoutb, and diien men taken, both qr-
cfaen and slingen. Pat. m. 9. ' de hominibus
* eligeodis ad anus,' m. 7, ' omnibus et tingoli*
' marinettUi'bctweenLondonaod the mouth of
Ibe Thames. M. fi. De Naiibus Capiendis,
dans. IS Ed. 1, m, 5, • Marit' faciend' in di-
' Ktnat dvilatibus.' Pat. ai Ed. 1, m. 16. ' de
* PMtilHis maritimis imeniend' ct costodiend'.'
M- 0, ec IT. ' da naTibus at galleis inter viUam
' de Lrn et Baiwicke.' Trin. 24 Edw. 1, Rot.
M, Inter B. sro rr^ ,- there a writ jesued Co
*dcl> and sucli men to Snd' ttn horsemen ; one
Wtinned, tho* he hod locne in Scotland, and
fomt at CobhMM in KetM; the king makea en-
quirf whether it were se or no, and Andin( be
hnd noc so many as he snid, cnrnmanded CliaC
he should he distr:iiiied, ni>t only f>r ihc con-
tempt <if the kill);, but tlirtliG diinger the kin^;-
<l.>ni might lie in for wunt ihereuf. ?4 Ed. 1,
Kot. T8. PoHertocumpelnivn to make defence
jtiito J'ttcttUatts ; uiid lite county of Bcrk5,
which is an inland couotv, upon refusal a cap'uit
in muHU% was awnnlud to miswer it in ilie £x-
chctiuer, and tlie ^rni of wn^i-s to be stt down.
54 Ed. 1, Lord Treasurer's llei>iti)>bruncer. A
writ from llie barons l<i assess all the pople
wiihiut the king, ueus being nf 10,000 inrn
coming. Chios. 35 £d. 1, m. SS, dors. ^Villial^
de Ripo. it was recited, that the people have
beeu ut a |;reat charge; and bec^usn winter
ooine on, (be kiii>; uilling to spRte them,
watches aitd boacoiis wei-e cominniided to le
set up and kept, anil the peopi? to dcpnrt, but
to raturu again upiin notice. Itot. Pni S5 Ed.
1, M. 9, Custody of the Ahirinttnc «hs »ith
sii ships; by mbich it appears that Custotli a
Maris, and. Cuscoilia Marintina, eta tenns coii-
verlnble. The nbbot of Bobtrtsbridgc's cose,
35 Ed, J, Rot. 70, the abbot brought a repl^
^in»t 01
- that li
anil Sussei. The ofiicers did own, by
reason of the wur betoeen Fiance and Eiig-
taad, tlie abbot was assessed three several
yeiirs, atieveral sums, nnj, (he fimcth lime, and
noluirtdone; but now, if the writ goes out
but two years logclher foi inaadilum) but
what doth he plead, dolh he deny (he nrii? no,
he pleads he was assessed for oilier kndi; he
found a )inne ad cuitojmm pradielam, so that
\\\t horse wtis for the luntl service, and (he
money for tlic sea. I conclude as Selden, ' a'ut
' ad ipsutii mare, aiit ad tarn lictus quam mare.'
After the statute ' De Tiil!agIo non conce-
• deiido,' Pat, 97 Ed. 1, M. S, -de navibn*
■ coDgregandis.' Pat. 31 Ed. t, M. 3D, 'Male-
' fadentibus in Marchiia .4nglie' a commission
went out that all sbult be in iimis against Scut-
land. In ancient (imes there wns aucli a con*
section between Franre and Scotland, that vre
had ntways a doable wiw, nnd clicrefore could
not expect all forces in oueplacp. In th^ time i
of Ed. 3, Fat. ii E<l. 9, pat* 9, M. 96, '
* nf,e de oaTi^io proridendo i
' faciend'.' I see niib what policy Mr.
John went, and what niutijilidty of recorijj he
cited, and opened them with ns much skill as
ever I knew any man ; but I desire to go in
the path of naked truth. I shall mnke it ap-
pear to all the world, that tlie king hitih done
nochini; but what Lis predecetsors hnvedonc;
and thai there in not more testimony to prove
Littleton's first case, that Che htir at law ahull -
hate his patrimonv, than tliereis to pi^ivE thiii
the king's right. Pat, 12 Ed. 9, M. 15, dors, all
between siileen and sixty to be ready. Pari'
Rot, i Ed. 3, M, 4, Ordinance that the kin^
wiihonc Che asieot of ibe bnroni coald nut
make war, but rbtit was repealed and damned.
Rot. PaH' 1ft Ed. 3, M. 31. It is said it wa*
prejuificia] to the royal power of the kinj;, and
n blemish of his rojal sorereigiiiy. RoC.CIaiis.
ir Erf. t, M. 10, when they wMe *r«n)*d Ui b*
'6, 'pro
mpCibuk
9S5] STATE TBUIS, I.'JCharlmL 1037.— 7VA:mg<is:antf<^i''''«//«";><'"i.«?- t9»
ready. 19 Ed.2, Rfit. Put. p«ri 2, M. fi. to •U |
bi^Hupi in Bnglnnd to b« ready lor [lie delcnce. I
CI.-IUS. W Ed. 3, M. 9. sntt 7, < cle hominlbui
* qui dnml reuianicruul, &c.' >Ik>uI<I cntitritnite
to thote I hut went, it un« lo (oitynrtthj CAun-
lics ; ■ Nos con(iderante«, quod justum et con-
' sr)Duiu raiioni non eit,' ihnt lIio^c cluuld ei-
piMe hxlh bndy and pune for the utility of t'lC
kingdom, tn the time of Edwnid tlie third.
Rot. CUiis. SEd. 9, ' de aavibui invenieod.' a
comiDind ihat ill *hi|)s of 40 tunaand upwards,
with meo, uiunition and riciuaU, tliould be In
readincH at their own clia^. M. 3, mariners
•re warDed to come ptr duoi mrntti, at their
own charge. J Ed. 3, Scotch R'.ll M. 19, ■ de
' portubus contra adtenliun, &c ' ' et datum
' ett nubia i<itelli|i, &c.' it appears it wat done
' taro per mare quant per terram ;* ntid ■ di-
rectlcn to all artbhiibopf to be attendinf, nud
ihe ru>.se Coiiiitutut to be arrnyed, ' secundum
' tUtum et facilitates,' CInua. 9 Ed. 3, M. 13,
dors, all from IG tu 60, to be arrayed ' armi*
And now I come to ihat famous year of 10
Ed. 3, Itot. Sco. M. 21, or 33. Men for land
and sea. Rot. Sen. 10 Ed. 3, M. 21, dots.
' omnes ex dcbilo defensioneoi aitriii^untur.'
RoL Sco. 10 Edw. 3, M. 23, ■ De proclanu-
' tinne faciend'.' to all inland and olliet muiilics.
AT. 20, to Lynne. M. 14, dors, to all ' prout
' fieri cotwuevit' to all counties, ' ikis consider.
' antes auod ratione l^aniix lux astringuo'
* tur.' M. 1, dors, ihrough ull counties the hLi
observed, espetiuHy ' nequiinus resittere cor
'rectii.De9,&c. sine auxil lis veatris.' U.9,'de
' nsTihua supervidendis,' and in (hi
very wonls nf tlie writ. M. 95, ' de portubus
< cuilodiend" inland counties as well as uthen.
Berk), Will", Lcicest. Northam. &c, M. 16,
' NaTiLui siipervidendis nos advertenies cir-
' cumquarjiie nut liec teinpora.* Itot. Alinan,
10 Ed. 3, pars I, M. 13, Rot. CInui. 19 Ed. 3,
part 1, M. 13, dors. Hot. Alman. 12 Ed. 3, M.
33, pa,(S 3, ' >er*u) boreales duplici eskippa-
' mento,' and to contribute, and those thst re-
fuse, 10 nsacss ihemjuxla itatim. Hoi. CIi
13 K.I. 3,m. U, Archers. Roi. Alman. i'i .
3, para 2, m. 0, order ibat but one bell ahonld
be rung, Kot. Aim. 19 Ed. 3. pars 2, m. 3,
' tupervidend* quod, omnes arrniat' conwder-
' antes <fuod omnea, &c. se ct sua exponere
* aitringuntur pro salvatiooe.' Alman. 19 Ed.
S, pars 9, m. 10, because ■ hosies nostri multi-
' tudine Don modica, &c.' All ibat have ' Red-
dinis, &c.' were to attend. Alman. 13 Ed. 3.
■n. 1, * de lupervidf nd' vill' Soiitliimp.' CInus.
13 Ed. 3, m. 38, dors. A writ directed ' Cus-
' todibus terrie maritiiuc' The abbotof Ram-
sey lived at Huntingdon, yet distrained for aea-
tcrvice in Norfolk. Rot. Claus. 13 Ed. 3, m.
14, the county of Oion, an inland i:oiinry, and
jpt eoiDmoodcd ' Cnatod' terrs inaritimc' m.
17 f-d. 2, Bunco Regis Rot. 15, a Supersedeas
granted one, 17 Ed. 3, m. 34. Waees recovered
of a town for forty dayt. Scot. SO Ed. 3, in. 14,
' venuaSccitos.' M. 91, Ed. 3, Rot. 4, Banco Re-
gis ■ qiiain,detf nesoldienpay,'(r(,'ocoLnplain,
01.31, payment of wagrs. ItoL Part. 23 Ed. 3,
m. 4, there the crimnions were at great charge
for guaidiii|[ liie aea, and pray remedy, bol
not lor ihe right but fnr the eicex. lti>t. Franc.
' 1 Ed. 3, m. 14, dura. 3'i Ed. 3, Hot. Pat.
are 9, m. 1, Rot. Franc. 33 F>l. 3, m. 5, dors,
pro Jrihunne Cuke. Rot. Ffaiic. iS Ed. 3, ni.
5, and 4, ' quia eu vulgaris opinio i' and this
recited, ' nos coosideraiitet, Jkc. ()Uod ODines
junmentuiD, Sec' and ihis was for the
>nd goes tt> all inland counties. And a*
they talk of kings in tbe field, kings use not (o
- to tbe field inpeiwjn. Jlot. Fnuw. 3^1 Ed.
.. 34, ' pro clero artaiando.' Rot. Claus.
33 Ed. a, m. 89, dor*. RoL Cbus. 43 Ed. 3,
, ' deNavibus errestaud'.' Rut. Claus. 43
Ed. 3, nl-14, or 13, 'de haoiinibui arraiandis.'
UoL Clam. 45 £d. 3, n. 8, ' ut intelleiimus.*
Rot. Pari. 46 Ed. 3, m. 90, the colDraons com-
plain of llieir chanc, aod sav, that the sea was
SI) noble, that alfihe world called the king,
the king of tbe lea, &c. ibey pray ni nf grace,
&c. Rat. Franc. 47 Ed. 3, m. 30, far guaidio^
uf th« sea-shore. 50 £d. 3, pan 1, m. 105, 31
Ed. 3, pars 5, m, 35, the charge i» not pot
upon the people -nithout common conMUt.
Tlie king is not.to do tt but for (he gnnd ne-
cewity and defence of the realm. In Richard
iho second's time, Rot. Claus. 1 Ric. 9, pars 1,
m. 7, Scarborough. Rot. Pat. 1 Ric. 3, pars 1,
m. 13, RoL PaL 1 Ric. 9, pars 1, m. 49. dori.
Beacons. Rr>t. Pat. 1 Ric 3, m. 13,dora. RoL
Fi:anc. 3 Ric, 3, m. 15, Rnt. Scot. 4 Ric. 9,
ni. 9, king of Castile, ' pio compelitudo ho-
' mines pro custod' ninritim'.' 7 Hie. S, H. 9,
' Totui C'lent*- aoponere raanus adJHStrices,'
arcbbiihnp of York. 3 Ric. 3, m, 5, Arcbos.
Mny it please your lord^ips ; Tlie last day 1
left off at the end nf Richard the lecnnd: I do
not lova tn repeat, yet in regard the records that
are of weichticiteiklence for ihe king to men
uf undentauding, are perhaps nnt so dear)*
understood by every on.e that h««rt them, I
»hilt sum up nhaibath beea read. It hath ap-
penred by the records that have been read, ihot
the sea and the land have been guarded by the
coiuiitons, when danger did appear to tbe king:
if tlie danger was great, all tlic ccmnioiiS, no
a^, no sei, no order tu be spared, all ecclest-
Bsticnl persona bound to defend. If the danger
were lus, those paits nearest unto it to deftnd,
nareasnu tu trouble tlie whole kingdom, when
a few will serve the turn : those tlut refuwd
were compelled by imprisonment, seitnre of
gnoda and lands. The writs have einressed
fully andsigniGcaat]y,thatno wageioughitobe
paid by the sing; tliatwben there »as apparent
dnnger^it appeareth by aome records, that one
man should not serve ibr another ; care taken
by coiiiui^on, that all eqaalhy shonld be used
in making oF contribution ; and when con-
plaint, as 35 Ed. 1, was made agatn^ it, it wu
remedied^ jetitrfaiaotratiamfontriMiaitu,
but viuUnIm uterlhK'i. '...,.
Google
937} STATE TRIALS, 13 Charle* I. 1037.— fc the Cax qf Shtp-Moiuy. [93^
ThbcMiittBfit-iisiige of lunner kings is of
much more ■atbo'rii; ,nnd weight, ihan tcat-
tercd juil)(tncliU liere ind ttkcre, or judicinl
proceedings iji any aiDri, Mid ihese nre not
wanciog. NolwitljuSDiling, I thalt now pro-
ceed and come to. ihe time, wherein so manj
grent lords did die. and to much noble blond
was spill in civil war, from Henry 4 to Henry 7 ;
' Hriirlcus Roms Regna Jiicobua.' There khs
- oot.lhen sucli f^real cnose to look to prepars-
1 fnr I
: the
> [hen i
bonets of tbe lund ; nnd the s^a and the land
m^e but ODe kingdom, and tlie reasons are the
Mme for both. And fur Henry the liiurlh, wbea
lie wa» newly come to the ctowu, it appean
Jtot. Ctaus. 1 Hen. 4, pars 1, in. 19, dors.
Writs are directed to titc arclibiiliops of Con-
lerburj and York, and otber LiahopB; and it
• recites, that ihe French had prepared a great
navy »hich wa& seen on the conits, and in-
tended tn inrade the kingdom ; nnd tli at abbots
and priors should be nrrared, ' sine delihern-
' tione. Sic.' ' et juxta statam et possession em,
&c. et triand' Mitlenis centenis.' Hot. Vingii.
begins 1 Hen. 4, to 11 Hen. 4, m. 90, ' de Pro-
* cTainatiane faciend' to go n^^itisl the rebels
vf Wales, 'dearmialioneruciend" iy the snme,
and baronj BBiif;ncd - to the cuBtody of ibe
marches called Botlelfield ; less reason for this
place of any, liir they say there were lord*
marches lo defend it. in. 14, 23, ' de proclam'
litcieDd',' to go with the king io person ngainst
Henry Percy a rebel; nnd there nni an array
of men by uie sra coasts to resist tiie enemies,
&c. Mid iii the iHiue Roll, ' De Honiinibiis
' C'ongregandis,' divers other proclamations,
■ De Hominibus DefeDsibil'.' In the same
RoU, ■ De MilitibuB iafnt Cotnit' Lancsstria
' arciiand',' upon the instruction of the earl of
Notihiimberland, to bring ^em to Pomfret,
ni. 10 et 27, agnin to go to the princo Henry
the fifth. And in 1 Hen 4, this goes to Nor-
liiumberland, Derby, Lancaster, by Robert
doke of to invade the kingdom. My
lords, nobttmeo, valeii, ftc. ' et onjnes bo-
' mines defen si biles,' between Ifl and CO, that
was juita ttatvm, upnn warning 'of two days,
wliich was in ' Defrnsione Begni noatri,' to go
with the king, m. 30, ■ De hominibus lernn-
' dia et congregtndis ;' and of this naimv 4
Hen. 4, m. 11, dors, et 10. 5 Hen. 4, pat.
ta. 48,'dors. pars S. Principal men joined lo-
xether to array and imister all OFer England.
lliii hstli appeared by the constant common
law of the kingdom.
Before Pari' 5 Hen. 4, S4, the commons
pray that the commissioni of array should be
considered, and the j-idg« advised with, and a
commission made for tbe future, ' ad ariand'
'. et triand' qni de corpore sunt fanbiles,' &c,
' jnxia statum et facultntet, il^c. et ad assidend'
' et proportijinand',' with pooer to distraiD. 7
Hen. Fill. Her. Thomey Title Protection, the
subjects of England not to go out of Eneland
with thiir king. This was upon the kin;;';
going to aid ibe duke of inlanders, Rep'irt
7 fbl, 7, Coin's Caie^aot to g^iPiUiout wage*
when they «ere to fuHow tha king. la Henry
Sth's lime there were great wars with France;
but "hen the king went, he look great care that
England should be prnrided for. Pal. 3 Hen.
5, m. 17, durt. pan 3. ' de araiation^ faciend','
fare is taken Lliat all should be arrayed, aud
beipg arrayed, sliould continue su urrayed.
Stat. I, F.d. 1, it provides tbut they shall not
go out of their cuuniies bnt u'poo the suddea
Cuming of strange eoeinies; and upon warning,
they'were not only to anay them but to lead
them (o the sea-cuasts out of their countries,
when and where it sliould be necessary, ' cum
' nliquld^wriculum eveoiat,' notwithstanding
the statute, which is ourcaie; nay, our cas«
is much stronger: And 3 Hen. 4, a verbatim
with the other. C Hen. 5, Pat. m. 8, dors, pan
101. 3 Hen. 5, 16, durs. this was upon tha
threatening of the kuig of, Castile, to all tha
counties of England. 7 Hen. 5, mie" "gu,
diters privy-sealsto all thecouotics of England,
to tnfonp thi- king what able men of ancestry
tliere werf, ' ad defensiontm uos in proprii*
' personis suis ad defensionem rcvni,' and lh«
return is ' pur defence de eon roalmG.' In th«
time of Hen. 0, Rot. Pi(t. at. 37, dors, pars S,
' de aralione faciend':' 7 Jlen. G, pars I, m. 7,
dors. Hot. Pat. there is ' quia datum est nobis
' inielligi,' for the iile of Wight. Rot. Pat. 7
Hen. 6, m. S, dors, pars 1, 13 Hen. 6, m. 3,
dors, ' de mililibus congregandis et ducendis
' verEus Scotland.' Tut. 13 Hen. 6, pars 1,
in, 13, dors, 'Contra militinip iniraicorum,' a
full command to array all, and id bring iliem
' ad costeram maris' and other places, ' et
' juita gradus «u<is,' 14 Hen, 6, pars 1, in. 90,
21 Ken. 6, m. 40, dors. Hot. Pat. SS Hen. 6, '
m, 11, dors. Rot. Pat. Sg Hen. 6, pars 1, m.
45, dors. Roc. Pat, 37 Hen. 6, m. ti, pars 1,
dor^. all arrays, a haok-cHse 38 Hen. C, 11. fa.
Er £3. Divers, of the clergf had churcbei to
e freed from the payment of tenths for the
defence of tlie kingdom, |nd the clergy did
grant Sf. in the pound without act of parliib
meni, Aid tliis sent by Mittimus iulo tlte ci.
che<juer,P. SG Hen. Q, Rot. 10,etTrin, 11, for
levymg of money upon Sciri Facias, 36 Heti.
6, m, Q, dors, regis 1, Part, array in tbe iile of
Thanet, and campell them by distress, ' pro
' defensiune regni.' 37 Hen. 6, Pat. m. 1, el G
dors. A writ lo many counties, because of th«
great hurt done la the people by tbe sea-coasts,
and the great preparation to do' more hurt;
thereupon camruand to train and array all part*
of England, ' pro dc'ftiisioue.' And the SB
Hen. 6, Put. ' de potestate* to amy ttie Isle
of Wight, being invnded ' jaita gradus et imu-
' ditioaes,' &c, 39 Hen. 6, m. 9, el II, dors,
a commission to Edward duke of York, whi>
claimed tbe crown, and it was adjudged him.
31 Hen. 6, ■ pro amialione facicnd' auxd'
per son' £1' iniquitntis disaenticntes, &c,' there*
fore is a command ' pro securltate persona
' nostrse et popult nostri ad invocandum omnei
' deleiisi biles* to destroy them. PaL m, 9,
dors, ' de villa d^ Stamford ad custoiliend'.'
m, 1, dors, a c«nuDi>eion tiod cutuntand giveii
4.H«d) 8, a pTocldniHtion Ui th« mBtitiine ccnin-
ti«) ta.be in s rendinets, console ring the French
kiDg had in readincu n Rf^ot obtj td enter
tliii kingdtnn the next minth eMaJD^, &c. and
cntun captaini itepotcd ta imi iImib; Mttf
939] STATCTRIAI^, 13 Charles I. ]mi.— 7Tk King asahul John HanipJm,aq. [MO-
to Edward duke nf York, EJ. 4, which gnte
poner 10 raite men and moneT at Bn^lol,
Hereford, aud nllier pliicei; which was cau-
crlled, and uilier C'lmmiision) gives ■■> the
room. In the time ot' Edward 4, Hot. Pat. 1
EA. 4, m. a, don. Tor rsduciiii; Henrj Sth's
power, ciKigrrgure nil the people, 1 Ed. 4, Id.
8. Soulh-WniM on ihe marches 1 Ed. 4v Scut.
Rich, duke of York, ■ Cukoi Weit-tMarchiti
* ad omnes liommes dereaitb:!)!,' in Combec^
land and Wesiniorlnnd between \G end OO,
' tint prompli in defeniionem Mirchinrum, &c.'
■f^st Percj earl uf NurLliiimberLnd, Hot.
Scot. 10 Kd. 4, ibere ftre ' custud« g^eoarates
' vers. Scot.' for airiiiingBll men as there should
be cause. Pnt. S t>\. 4, ta. S, dorr cofttinue
'parali ad delcnsiimeni personse nattrec et
< regni.' 8 Ed. 4, fol. 43, a bouk-Case, n suli-
ject hath power to muhe .i liiilnark lu anotber
man's ground ; the king haih a> macb power
orer ail the kingdn:n, um iinj particulnr mno to
J3iake defence, 9 Ed. 4, Pat. in. II, :>rr.i<> 10
Ed. 4, Pal. 111. 13. Arrnirii ■ in saWiitioiiem
* regni,' when he was like to I'lse hn kinEdnm.
A commission tii raise power Hg!iiii^t liii ^reat
adversar}! and rebel Henry C, who did Uiteij
enjoj the crown by usurpaiiuii, it Ed. 4, Hot.
Pat. ittu'S 1, m. 3, ' pro cinductnribtiT et waffa-
' toribus pisi;atonim,' and nt the Mihiecib
charge. Pat. I, Rich. 3, purs 1, dors, ngaioft
tliedukeof Buckingham ' quocuuqu' conn tat','
and this ' juKia stHtum et fecultales.' In Henry
7th's time. Henry 7 was a wise prince, his
itiajeity's progenitor as well as hia predecessor;
he staid nT>t till lie saw the lops of the ships,
or the drums heat ; he provided for the safety
of the kingdom betimes; when the war was
denounced between Charles king of France
and the king of the Romans, thouf^h he was
allied to both he prepared to defend his king-
dom. Roc, Pot. 1 Hen, 7, dors, a command
to the sheriff to make proclacnation throughout
all England, that because we are informed of
the war between Charles king of France and
the king of the Itomant, and greet hurt mar
happen to this realm, and the subjects thereof;
Guminanding nil subjects to keep watch and
ward upon the sea-coasta, and all beacons to
be made ready to be get on fire, as in okl times,
and this after tonna^ and poundage was grant-
ed CO him for safety : and 1 am sure there ape
grcatrr w^rs about us now, than there were at
that time. Rot, Pnl. 7 Hen. 7, ' Intusde po-
* testate cnrnmiisa' to the earl of Surrey to
go CO conquer Fmnce, 7 Hea. 7, cap, 1. a sta-
tute in print, a Hen, 7, Itol. Pat. pan 1, a
GOiamnnd to Richard t'itz-Hugh and other*,
to keep all in array for defence against Soot-
■ land, which intend to inrade the rearm, at in-
formatur. Stat. 1 Hen. 7, cap. 16, evwy »nb-
they were all to be in a reodiaess at an hour's
wamin; upon their all^aura. Hot, Pal. 4
Hen. 8, the tame commituon toBouchiers,&c.
in Lwin, 14Th of Hen. 8, which is not in this
roll, but a book of prodamationl ; tor hefbra
Edward 4's time all between siiteen and aiiiy
were to be ready at an hour's waininc. 1$
Hen. 8, tlie inhatiitants of .Stsmtiird, Nuliiag*
bam and Salop, Ate. lo attend the earl of Surrey
upon an hour's warning. UO tten. 8, ' Pallacs
' ireaaur' onues homines nd nnna,' lo be readv
' ad serviend' nobis in Scoilund,' as need khah
b*. Stal. 35 Hen. 8, cap. 13, rwoimioni of
loans, reciting and considering, < an daly Ct
' honor del people,' to assist their king ia horfy,
goods, lends and substance in hii wan; and
there it was only for offeiisire wsr». Rot. Pm.
94 Hen. 8, purs 3, 37 Hen. S, in Mr. Moyle's
book, 4 Jk i Pbil. jc Mar. commisiiuns of amy
to go to nil gentlemen, but now but one liaa-
Icnnnl of a ciuiily; and tliat power which tli«
lieutenant now hath in England, waa the Mb*
wiihtbe ant lent commi:isions uf array in nib-
stance, fiir it is no new iliing, Tliesa ara in
force by S Hen. 4, and common-law in qnetn
Mary and queen I'Uizabeth's time; and they
did not i!f> liv the leg:il array, but by the power
uf Ihe couu'cil-boai^. 3 & 4 PhiL & Hv.
1537. Council-hoard. Calnis was beieged oa
the sudden, die enemy making preleoca of
going into the Eow4IJiiuntrirs, there went pr«>
sently a command to the lord Warden of tb*
Cinque Pons S.Jaa. to make proclamitiian ia
Kent, thuc all from 16 lo GO sliould repair to
Dover to snTe Calais, upon pain oi' deaih, 8ib
of Feb. 1537. Letter of thanks given to sir
John Edgcnimbe for diligently muiterinfl 1,000
men. 19 Sept. 1558. NorthumberlaacTsnTed
without wages. 1 Sept, To contintie watch.
8 April 1358. Whiltypoola for not finding
Damylance, is called to the conncil-iable.
These are to ^ev what proceeding there haie
been in former times. Hot. Pal. 7~Etit. para. 3.
A. conunission tu muster all men against Scot-
land. 11 Elii. Rot. Pat, though noton record,
yet in a book in the CrowU'Office in die Chan*
eery with Mr. Willis; A commission to array
men, and to provide all things necessary, ■promt
naeimilat, &c. and to inform (bemselres wbat
armour (hey had, and this to be done fer oar
better service: bat with thoae commiaion*
there went instructions, amongst which, ob-
serreihisone, ' We require you tooonsidcr bow
■ necessary this ferrice contniitted to yon i*-ai
' this time, for the benefit and saAty pf oar
< realm, wherein we think ihe mnee eamestaess
■ is the more requisite, because of our subjects
' long coDtinaBnce in peace, and lb* nocortoo*
' being in aroM of onr nctghboan about oar
' Ttalm.' If ibtae timca be not wonc. I loatva
it to m indiOcrent man's coiwjdeiatiao. ST
Eliz. WatsoQ RuU. A warrant lo tb* kH
dwucellor to make lieutenants snd d^niy tiM^
t^Aiita, wfuth are tlw old uommiseionen of
amy tnnaed into English. Aad ia 1668, «hen
that great Armada caMie, alt ihsrv^Hw^iB
•nai,*a4*0tb*cu^fMlaiiMiiig*. taBBLMf-
941] STATE TRIALS, 13 CWAiiLn 1. 1637.— in iAc Ctte of Sb^Moiuy.
[943-
14. 16, the lubjecta granted « wbaklj, in con-
< tidermlioDoftlwqueea'tcbarge. Aai ibviub-
jects ner« Uiea at greit cbsq^, both fur land
and (ca, and she tcmk it b; tJ^ power of her
council- table. 1 be citj of London ttm desired
to find ten nliips, aiid uf tbeiUielvM the; deaired
to find twenlf ; ttiU waa tlie afieciion of those
Cimei, tbejr did not dispote but wrre readjr to
obey. 38 Ajiril 1668, a letter to lir Hubert
WiugSeld, abereac divers towns in Su£>lk wert
charged to let out a ship, and that diten wem
poor aod could not, a caminand that the riclier
, aboold do it. A letter to the earl of Huntiuji-
ton, that York shnuld contribute ta a ilup
diwiced on Hull. A Jetter to other towni to
CDDtribate to Colchester; the; refund, let
were caspelled lo do it Ibrndvaiicanem of^M
necessary • trrvice. Tlieclcr^ in 1588 joieed,
and the archbishop was captaiu. And there
weie tetters for rtemoli^tiiog of Suburbs. Sta-
tute 9 Jhc. cap-O, "here tlie charge uf the peo-
ple in queen ^liiHlxLh's time whs reinenibered,
Loiiduu WHS diargeil, and Ibrcigners and stran-
gera were charged alao lo contribute, for that
the charfie was cuminon. In 1588, 3,000/.
conduct muncy levied for the eai 1 of Bath ; thejr
did not tiay here till the tups of tlie tbipi were
Men, hut they innde prepamliona in 1S8T. In
1599, ei^at troops ireTf aaiembled at London,
for deieuce of the queen, when the tumult was
about the earl of Essex ; and in i;i98, the charge
Ikeing common, the charge ought tu be born in
CORmon: Nay, the Innsof Court were chaieed
with aruis ; upon the •pprehendini; the earlor
Eewit, a leaer nent t<i the benchers of the
Inner-Temple for that purpuse, and nil the fen-
liemen tiiuud arms. Aamu^at these letters
great leviu of horse and foot at the coniitry'i
chaise. And where ilie wuuld not hare tlieir
perMDt, she had^heir purses nnd power to ei-
lend accordingly. 159J, AihougM the jp^pers
•f the lord Nuttiflghuin. tlte pe<u>le set forlb a
itiip at tlieir cbar^; we have the letter only
to 6beiT tbey did it, and hnw much eadi man
did contribute. In king James's time there
was not micli ; the times wene not only peace-
able but pu^ificDui, his Motto was ' Beili Pa-
' dficL' lOtli of July, 3 Car. A proclamation
JHOBd, that all people ihoutd make speedy re-
pair tn several places, and sboidd continue
durini; the danger. And for a bindinf; autho-
rity, li Car. Uie resolution of all l1^ judget
under their hands, nnd inrollad in evety court
ai WestmiBtUr: a man should, have thought
th>tthat abould have givaoiatisfactioB, it would
bave duie lo in fbnnes' times. And truly, that
the kiike hath doiw naibing more, hut what the
kii^ of this realm ^rt* done bcAre, is noat
apparent to all iboM who will read our law-
baob*. liaw o&en bii«c the judgn beeo as-
sandiled bj the kiiu's corooMuid, hath in the
oatwanl and inwara Rtsr fhatahrif. aikd there
■■ked qoettioiu i 8 Kich. S, la. 10, 8 Ben. 8,
100. k 101, ttm king aM there, and aeaaoned
them. lattuianew iliBf forjaripaiodaltver
An 'Ofunion* ^ But his jm^mij lialb bean
^JaaMd likfwitt to v** may, ttu* A ni^ w
brought to a public debate in a judicial *vay;
he liope* there are »ery few that oppose it, do
it out uf any averseness from tlie public service,
but to sntisly lbemKlTe3,and eo to submit.
To answer Mr. St. John's argument ; before
I cotne to answer in particular tu what wu ob-
jected by this learned gentleman, who hath
taken a great deal of pains, and made at much
kite of it R« was potsible for a cause of this na-
ture to bear; I shall in [be first place give a
I Bay, that the testimony b; t«conlg given
on the other side', whereof many are vouched,
which 1 am f}Bii to bear of; and tliat men look
into a buainets of this nature. To make such
a search is for tlie honour of ihe king, that
tbera is, according to luor, the freest access to
tlie records, that erer whs iu England; and
that great lord (Holland) doth know that the
king commanded with his own mouth, thiu free
access should he to the records in this businew;
and I appeal to the ofiicuis that keep the re>
cords, whether I did not only debver tliat com-
mand from the king uniu tlitm, hut desired
them myself to shew to the other party what-
ever J bad, — 1 say, tiiese records, take iheni at
the best, they are not of such it eight in point
of ri^, BB the other nre which are far tb«
king; for If a king shall voUmiarilv, and In ease
of hit subjects, or special grace, do Bn;r ■)>iog>
yet I conceive that is not of such wc^ht, at
when he produces a constant use ofcompultive
power fiijm the crown, and obcyad fay tha
people : for if any uf ihe liiii?s bnve spoken
in gentle language, ai king John wbeo he was
depoted from bis crown ; 1 ciinceive that will
not be to much la gentle words used in the
I shall answer particularly tc all the records
that have been cited : it doth much concert)
itie king, that this arguisent be answered hilly.
-—The first thing that was said, was, that to
seize goods witluut «uit or.ceusE, is void in
law ; but thie was not used as an argua^K, but
an introduction. But in the neu place, he
comet to a high ob)ection, that in hia majesty
there it nojaataf inttnta and txicma ', his in-
ivard will which he doth declare in bis cham-
ber, and faia legal wit), and withal, that the
kiag cenaot jtldge himself, S Rich. S, fa. 10,
It, whioh wasf rounded upirn i bat book-case. —
The king cannot jurit^c in bis own person, but
hath left it to your iordshins, that are sworn to
do eqnal justice betnei^n him nnd .bis pet^Ie ;
hut to say, that ihe king cannot judge himself
I queation. Can iIhk be wanting in the foun-
tain, that issues in the stream i J'hu I utterly
ilany. Is itnot said, Coram Hege inthe King'9-
Beuch, nnd in the Star-Ckumlier, Coram Con-
eiliis nottris t This is a new doctrine ; and shall
not the king judge? Did not Ed. 4, tit in per-
KM in the Kiag's-Bencb, in a trial of Kapef
and that iunous justice Popham sat at the
kiu't te*t, and other judges at the king's side,
and tbertfOK calltd 'jnaticiariia latere regit!'
Bare he fiirgot king Jamei, who ndjud^ twa
IMH IB the r " ' '"•■
..GooqIc
- 913] STATE TRIALS, ir^CiiAuMl. l631.-~VuiiaigagaiiuiJolmHtaii)tlaheiq.[9U
him's and >ir Tho. Lake's c«m. Th« bix>k
rioth no way *rHrnuil hii inference; [he book
doth my, the king iIikII not judge, hut tutb,
that ir Kraen be cimv-icied berore chejuHgei,
the Ling'sliall not set the line, becouae be h<
etbni
. the CI
TUi I
That no law can be changed but by act of
parliament, a» a iiaturjllzution, and a. legilima-
tioii ; rtttj, no writ of error but in parliatDent,
tillbjthcstntuteofsr JUix. and ihat the par-
tiametit it Cotia l^ii, and cited 31 Uen. Btb,
CroiBpton's jurisdiction; t)ic king ia at no time
in aucn itate-royal ai in parliament : all ibat
vaa made out of tlii', «'ai>, tliat this
rliai^ of tbe law, lii. iha writ for shippinji.
We believs it ia.so for from beiug a chalice ol'
tbe law, H$ ihat it was tlie cutlnm of all uges in
former times. Now he savs llic parliament is
the highest court, and the king is ihere at hi);b-
nt both for mngnificenre tind power ; but yet
oat of the parliament, tbe Ling is king of Eng-
land. It doth not follow, because he may do
it in parliament, tliat therefore be can do
it no wliere slie ■ and it is to prove a compa'
rison, to say, that the king should have ihe or-
' dertng of war as a generolisMUio over liis tub-
jecis and vass'^Is; nil the generals have their
power from liiin. Uh ! hut the kint huth pro-
Tisian for wnr. This is hut a cunning insinua-
tion, to make a survey of ilie king* reicnuc,
and to insionute, with the people ; and be be-
gins with knight'fr-terTice, tenures, and these in
dangeront places, as Doi'er, Durham, Chester.
35 Hen. 0, Britt. that the king should not
only have his wards lands to breed tliciu np,
but to mainiain the wars in the mean lime ;
and that knight's- service 37 Hen. 6, were in-
stituted fbruniinary defence ns horsemen. And
because the kin^ ofEnKlnnd, out of tbeir care
to have men trained up had horsemen lo follow
ihem, that therefore they shull hare no aid
when the kingdom is ia danger, is a utrange
inference; shnll we have no footmen, no
archera, no. slingers to hi used in war, no
this ii hut for forty dayi, and was iiistituieri
•upprcsi the sudden incni^on from Scotland. 10
Rich. 3, Guard. 105. pi' Tenure; they do re-
strain pnrticularly cscuage and knights-service
to Scotland and Wales. 33 Ed. 1, for Ga^
ootgne afterwards discharged, but tiot for Ur.
St. John's fensons. Hot. Claus. H Ed. a, la.
97, these were dischai^d of eicuoge, because
the king nas riot there m person, nod because
it was extraordinary. Itot. Scot. 5 Ed. 1, m.
9T, that recoti doth shew the kiuga of England
did conceive that (hry were soinenhat leu
than enemies that refiised it ; for fore^ service
I never meant to object it.
Then he saith, thai escuage is to be assessed
in parliament, though for the defence of tbe
kingdom. — If that were the proper question, I
could shew when esDuage was not by pariia-
menC, for it was by atiocbei reason. It was «1-
Krcd b V an iict of p
17 Jobannis Sa-
lute de EanntHg Mead, Nullum Scutagims, for
it was not so before. Also it concernetlt the
subject as well as the king. 9 Uen. 3, cap. ST.
The true renson of ass^ssin^ in parliament is
ibis, otiter men were to hare escuage os well
OS the king; now it is true that rule. No maa
shall be judge in his owb case, but dterefore
not the king ; that holds no prnportiun -. aiid
kbgi are said to do no wrong. Tm true reason
why it was assessed to parliament, was because
the lords would take too much. This ia from
tbe busineti, I pau it over.
Tlien be alledged, that the king is in actoal
possession of the Wards.
Tluit ibey shoold go Ciin«rds the maintco-
an^e of the war, he cannot shew any authority
worth the valuing, neither Bracton nor&rittOB
hath any such thing ; for 35 Hen. 6, tbe words
are > pur ceo,' &c. The argument will be but
.thus ; Because the king out of tiia especial care,
out of his own land, provided some tenures Ibr
that purpAsc, iherefore he shall liave nothing
from ilie subject/ The king did never give, nor
could give other men'i lands for those tenures ;
fur It is most apparent, the Normans came not
in hy conquest. WiUiitm wns no^coEiquerar;
for after he came in, men did recover tbe lands
which were (heir niicescors. That was the
wisdom when Henry the 4th took the crown by
conquest, when he would have altered tbe
laws; Nul take our laws, and take our lives.
This, isao argument no way cooducii^ to the
purpose, because he liath some liurse by tenure,
therefore neither fool, nor proiision for sea-
hght, nor trained bunds, because prorision is
made by tenure. Tliit is contniryto all reason
and experience: What obligation bath the
soakman and the plowman's tenures, what do
they pay to deleiid them } No consideralion
font; these are rather.inslituatiOLia than argjo-
menis. — Then it was said, there were like
tenures fur sea, and he cited two or three ; one
to hold the king's bead at sea, uod soma such
like, as if (wo or three tenures were like to de-
fend (he sea. It was also said of the Cinqos
Forts, that they have many privileges allowed
them for thai purpose, 13 Ed. 3, Par' Boll. J 1.
— Is the Cinque Forts bervice a competent
provisi'in to detenda kingdom ngaiiist boaiility i
1 know no reason but the whule body shoald
defend itself. 13 Ed. 3, m. 9, it appears' ei-
presly, that the commons made delence at tbeir
own chaige. No man can he discbaiged of
keepinf; a tiiing,'tliBt he did not keep; so be*
cause the subject is said to be dischar^^ed, ia an
argumeul that be was charged. That of iba
Cinijue Ports is not fur the defence of the king-
dom, but for intercourse of inercfaants, not
Quando salus regni periclitabator.' '.
Then iliey objectj that teuures in ancient de.
nesoe were talliable without consent, and ibeir
ervice for the kiog't protisions in their bottse.
4o reason that sluiuld eicuse them fioin tha
general service ; for though it be tme, Ibat the
king's house emplojrsaucfa tenants, yet tbe kitig-
dom must be supported by tbem and ifa* re»(
of the tubjecti t^etbcr.
Goo;;lc
D45] - STATX-TitlAlS. nCsAUMl. X657. —in atGuetfS,ip.Sfo)uy. [946
Then be did ob)Kt, there wbs dnother w«j
of supplj or extruordinan' means, Hi minn in
other men's hiiirls ; and tier* he reinombered
ID. 3 Ricli. a, Prerogalive Comm', diiTerence
l«ken lietwceii aniiUBrnnd casuai rerttiue* tor
Then he objected, Rot. f*Hrr G Rich. 8, 11,
43, thatlbe kin); would Jive of h'lEO>vnrevei]iiFB,
nnd tliBt the tnioes, flee, thnuld be Ibr tbe de-
fence of the kingdom. Ontlone, who nrfued
rtie case, said, that tbe kini; was the most et-
cellent person both at Ma nnd land ; lherefbr«
the royal fnh at tea, and the gold nnd «ilrer
mines at land, were givea to lilin, because he
was able to give n stamp on mone;. And so S
Rich. 3,;ib«<r of London prayed that the Ling
would not put [Hem to charge, but live on his
onu, and so jrour autfaoiit; vanisheth into
Tbe Lingmuit live, forsoolb, of his ordinary
revenues. M. 3, Hich. S, vrliich exptesselb,
that the king nt ihit time would do so; that
ibe king, by advice fur salvalion of the king-
dom, would use these things given unto hitn ;
that indeed was a reasonable thing for ihnt
lime, but must it be now turned for aiiecessity?
€ Rich. S, m. 42, pars 43, that good govern-
ment be about tbe king; then they petition
■ that be would live upon the revenues of the
crown, and that all wardships, releases, mar-
Tiages, &c. Ebould be for the defence. I'he
king is very willing to do and ordain in this
case, as by the lords of tbe realm may be
thought best for his lionouc and profit ; 'tliis is
not a granting uf the tiling, but u fefermig it to
liis lonJs, at best it is but a temporary desire 1
— Uut oh ! he lioth the old Customs, and )'eltj-
Cuatoios, Tonnage on d Piiundagej ofthe lega-
lity of taking of it he will not speak. If the
king doth impose it on the merchanis, be
oeedetli not lo lake it of his other subjects.
Duties to the king in this year, came to
300j000i. and that Toiinage and I'oundnge
was granted fur onliunry and extraordinary de-
fence. 3 Rich. 2, 5 Rich. 3, 1 Mnr. granted
on vnnditirin, that by the statute nf Winchester,
they wiTe bound to have arms,'und no such
■tutute for tlie sea.
I shall answer all this ; but For Tonnage and
Poundage, 1 shall refer itforapHnicular place.
I'bey say, the courts of justice are maintained
by the king, the king iiath a profit tbeiehy, but
tbe
of them Cometh out of the-
lelcQce of the fiiith,that no heresy should creep
into tbe church. Therefore, because the king
in lont of tbe English sea, he must defend it at
bis own charge, and not command lh$ body
nor purse of his subjects towards it. A pretty
aif umeot ! He saith, the king bsth the old cus-
toms, which are the ancient inheritance of tlie
crown, and so for petty customs, and that these
must g« tor the defence iif the sen. Seeajndg:
meut m the Exchequer, in Edward Isi's Ume ;
search into the Fine Roll 3 Ed. 1, and see fur
what causes these old customs were. It was
uever said liU b« spake it, the old customs or
VUL. III.
lesser were for this purpose. And for this say-
ing that the statute of Winchester, 13 Ed. 1,
doth enjoin keeping of dtuis, an<l thereupon all
defence comes, that statute das repealed by
i'nilip and Mary, and set a-foot by king James,
and again by hmi repealed. I fihall shew be-
lore rbe 13 Ert. 1, many records tor land-ser-
vice long before : fur that statute doih only set
nformof arms, andisDoi the banning of aims.
So for tbe olijectioit of tlie king's reienues, be
Km* I shall come to Tennaiie and Poundage^
tbe darling argument ; which rairimi was never
given nor takeii, of itself simply, on extraordi-
nary defence ; I have i-eiD all the gtunts of it :
it may be when there linvo been wars abroad,
nnd tlien the subjects in pnrliament hniegiven
Tonnnge nnd foundnge with Teallis and Fif-
teenths, they have h»en all sjiil to have been
for the defence. Tonnage ami Poundage h»th
been given and taken merely for an intercourse
of merchants; and in that sense llie king said,
we do and must pursue tho^e ends for uhich it
was glinted lo tl^e crown. I shall make that
appear by reason, and out of the grants them-
selves and otiier authorities.
If Tonnage nnd Poundage were merely for
the defence of the sea, how was tlie kingdom
to bedefended before in the time of the Saxons f
At the first it was 6d. a year, tlirn to 3s. and
3>. far tonnage and poundjge ; then 3i. upoi)
a ton of wine, and Sd, a pack oo nier<.hindile,
tbst was all (or tonnnge and poundage, the rest
was tar old cust<xns. If this was for extraordi-
nary, how WHS the kingdom defended when ibi*
was given for half a year i Truth, it was for de-
fence of tbe kingdom, tliat is, with relation to
tlie intercourse of merchandize ; the recital
1 Jac. saith, it hath been taken liinc out of
mind. Hath tunnagennd poundage been given
timeout of mind ^ Then it was before Riclrard
Ist's lime : li. 6, be had it fiir lile, the statute ,
doth express it 05 plain as Tluiy be; timeoutof
mind is beyond ibe memory oi any man living.
course of merchants. In ail ages before tbe
granttu); of tunnnge and poundage, the kings,
upon a general detience, have bad other nid»
than tbib by their own power. Ordinary chnige
for an ordinary defence. — I could hnve given ft
legal answer, iltat it was not given unto the
king ; no net of parliaiiient for it. Yea, but it
is taken de/aclQ. Sliew your inrtroments then
by which it was taken ; tbut had been a general
Bull shall carry the king'slmnouralonj; with
his power and praclice: Rot. Franc. 2 Rich. ^.
7 Hen. 4, in. 93, Hot. 1 1. Tonnage and I-oand-
age granted to merchants to guard the sea for
intercourse of mercbandize ; which ibeweth
plainly it was lor that purpose. To put it with-
out all manner of questioji, € Rio. a, m. 8.
Fronc. Roll, pars 2. Merchants and marmera
had Custodia wiarii, and tbe king footed them
6d. a pound : dotli any man think that he would
trust tbe Siifeiy uf his kingdom with metchanti
■rnt of somiDoni hu die Ut of October, (he
da; of meeting after St. Maitin't; that to tfa*
arcfabohop was the 31st of September; tk«
ihip frriu Ads. 38, and Sept 31, tiiem the Mat,
the Sid and 6di of October; but all kng befor«
the meetipg of tba paHianeni, and m all Btmad-
ed upoa (it may ba.) And to taj that thr kinfc
becaate be did • thing voluiilani;, ibetcfoie he
iK be DBCMHtaled to it, I kmnr not what ar-
nait it 11. Haar; 7,' iadefd, did hriiif ihnp
. parliameot for tM kdvanceoent ^ bit awn
ends ; did queen Elii^wtb lend anj of her
commands oat of parliament' and jet the nt^
jecti faveber nibaidies. !4 Ed. 1. SmnDuna
tliere for the derg; to come if (he tmce did no
Ijold «Lth France. I think it not fit at all tinea,
wbea it Uandetfa upon inteUigcnce, tn oammo-
nicate it to the obde people. 96 Aiue. Saia-
9*7] STATE TRIALS, ISChaubiI. IMT— 3Vffl«<ip*<AfciH«p«i«,«j. [WS
and mariners r It was merely for tbeiaardof till after St. Aadica'adaj, btCWM* ha vaibwj
theses formerchsndiie^ exprcta eiceptios in in prqtatinf hii ihipping ; .lo tbn cMwabMK
the »erj grant, that tbej should not be bound shifigui «fien it wacpnie to Na_Man^ for the
bj this u> help agaiiiit invasion of eneaiiea, on-
less a rofal powirr come, ' regali polestate el-
'cepia;' tberefbre this was no eitraordioarj
service. 7 Hen. 4, Rot. Pari, is in the raow
manner. Aud in the Close Hell, that the C'a»-
todet rnarii should pat there a lawfiil power for
tlia safcfjuard of the sea agsiost ibe enemies of
the king, except a royal power; then notice to
the kin^ so it must be uodentood merelj for
intcrcoune of merchanu. I can shew joil a
Bouk-case for tliis, 9 Hen. 0, 13. Qtier, Case
Title Custom. Bract. 36, he saith. That Aids
and Sub&iJies are granted to the king, to the in-
tent that the king, by liis admiral, should guard
the tea, to the end that mercbandiie maj pass
and repass; not a word of tlie defence uf the
kinEjduiD. And in anno 11, the king was at
great chnrge with bii na*y; cast np the ao-
counls uf the sen duties, and then it will appear
there it not left to him a penny for the defence'
of tlie sea. Impositions and priiage of wine
was tu furnish his house, and not for defence of
the sea. Not only upon this, but there was an
ancient writer tiiat wrote the Doctor and Stu-
dent, whose name was St. Jennine, wlm wrote
in Henry the Bih's time ; he tells you, lib. !f, c.
15, fb. 153. The kii'g, out of the old customs
of the realm, as lord of the narmir seas, is bound
twice in the yeai tu scour the seas, but not
■gainst all outivnrd coemiea, but only to put
BWoy pirates and petty robbers. History of
Tonna4;e nnd Poundage. 35 Ed. 3, Pai^. Hull.
m. 1 1, the commons did pray, that ed. of the
it. asackuf wool, and of a tnn of wine granted,
that the merchnnts miaht bate *afi> conduct
over the sea, if it would please the king -. the
mercharits for thut would make their own con-
duct. All the Rolls go in that manner. S R.
2, 3 Hen. 4, and they cannot shew that Ton-
niige and Poundage was ever granted for extra-
ordinary defence, unless for some greet defence.
Next he nllcdged that sai duties were bom*
by every man in (he kingdom, and thut ttnm-
Aunitatvm; 33 Ed. 3, ra. 4," Pari. Roll, which
Bays it was incharEe of the people,' etnemy dea
' merchants.' — All men must bear proportion-
ably their share in the charge of defence; what
consequence is thisP brcause the first or second
yenr imt of (he subject's purse for tliair comoio-
ditiet, therefore their lands sball be discharged
in cases of exiraordinnry defeoce.
Oh ! say (hey, but this mat/ be done ttv par-
liament.— By ■ laay-bt a man may answer aa
argument ; but a nuiy-te will never answer
hiU. 33 Ed. 1, Rot. 5, dore. tlie writ* were i
Oaobcr, the parliament at Sl Martin's in win-
ter. In (hat 10 the Brchbishop of Canterbury,
the king 6oxh hut a little compliment with the
clergy, and telleth tbem lie Wnoweth what dan-
e abrnad ; the business of shipping was
done before the parliament, so the parliament
nifiht coniider of it afterwards. That it was
done afore, app^ura ; this parliament was not
held BH the da.j, but the king doth prarogoe it
and Apijt beibre, no moDe* granted in thcaa
parliamenB; thatefon to (ell us it rai|{bl be bj
parliament is • poor aiyument — WaJainghaM
saith, AlWiance bimleth tin king to protec-
tion, aa wril as it doth the subject to tribaie.
The subject hath a doable pmiection from
injury and wrtmg, in times of peace by his tasM,
and in times of war by his power: mnM this be.
done by the king's single person i No, it nrait
be done by the bodies or his sul^ects at their
charges. Indeed it i* fit that particutar sckhKers
should be poid.^Ofa ! but they tdl us, Amt
Fotttxue, Chief Justice of the King't-Bench,
to shew tbe law of England (o be better than
the law of France, saith, that iMitfait^ cuuld be
taken from the subjects hat by parliameBl.
That is in the ordinary way ; dolh he say, that
no man shall contribute tu defend himself in im-
minent danger f ' Ne verbuni qnidem.' 37 Bd.
l,m. 7. Pat. there the king saith hedid not bay
lands, manors, or castles with it, but did it to
defend the wbulc realm ; nu more doth our
king, but only to defend himself and tbe king-
In 33 Ed. 1, rot 10. It is olgected that «
clerk sued for his salary, and had it allowed
may not tbe king Et'easolRry whenlie pteasetfaf
14E.3,c. ], and thiswere pren to prove, that
aids, though granted in paHuunent for de&De«,
should not be brooght into eiample. These
were not to be spent fiir the safi^uard of Eng-
land, but Scotland and France ; and so it comei
not to our case. 43 Hen. 3. When the teaants
came with greater charge than their setvice re-
quired, * non trahatur in exemplum,' True, if
tenants by knights service at thai time did no
greater service than they were hound in time of
danger, it is but reason that it shonlH not be
drawn to be vcarlj, to make their (enure*
higher. Plowden fo, ?I5. Wiseman's case. A
covenant to s(aiid seized to (he use of thequeen,
ia consideratiou she is head of the c~
wealth, heU no good c
919] STATE TRIALS, 13 Cbaxlss I. 1637.— m tin Cax (f Sh^^tauy. [9A0
me, became diere wuiKth quid pro fvo ,- nnd
tlM king, er ojfEcio, b bound to do tbic — Under
-ray lord Coke's lavour, tc iras not in the cue.
Tbe ciue was upon divers ^ood comiderstions,
and he pnt this in hj naj or idiniuance. I
COD shew irlien this itrb declared to be do law.
Ncit, tliey alledge, thg king is in possession
of tbe service of the Cinque Pons, and of ton-
DBge and poundtge, and thii appeira not to be
expended ; and iif other duties for the defence
or [be sea, and ' Lex non facie »altum.' — Tem-
fHt bellt, I reserve for another place, for that is
one of the three thinn considerable in this ar-
gunwnt. That IrarDed gentleman, Mr. St. John,
did confess that (as necnsitj requires) when the
aafety of tlie kingdom is in danger, the subject
is bouiiiL If it were materia) to make it appenr
whether any tJiing irere spent or not, it should
ban been pleided at the £iche<]uer, if be
would hare taken any advimtage upon it.
Bat admitting tbey had been M expended,
jet the property of the lubjecu goods, saith be,
cannot be altered out of uatlioment. He did
B^ree the kingdom must be detbndsd, and did
yield, that for the manner of it, it did out belong
to the people. 6 Ric. 3, S Ed. 1, men and
money belong to the wars ; tbe commons did
acknowledge it belonged to the king for oidei^
ing in all times ; the caution of foraier «g«* was
to demand it in pkrlianient.
We shall shew in all ages, the king did it
without parliament. This is a pretty tiling,
that the king i> to direct the war, and yet shall
bate neither men nor money withont asking his
subjects leave. And for that of property beine
taken Away, in the opening of my irffument I
cleared it, I bhall not trouble you with repe-
tition of it. — Uh ! hut tbey tell us, the king
bath borrowed money to spend In the wars,
and promised to repay it, and that without a
Salvo iif his right ; this is an argument they
think worth conaideration. 4S Uen. 3, 10 Pat.
I'krMiw no law that barreih tbe king from bor-
rowing uf money, as be hatb occasion. Is it
not of necessity ihat the king mutt borrow,
notwithitandin^ both ordinary and extranrdi-
Bary I Must the king carry millions aboot
himi His occasions may be tuch as he must
bomw, and also fit it is that it should be paid
again. Doth any man think, that if the lung
(toch'borrow 10,0001. of any particular man,
be must not be repaid again ? 48 H, 3, m. 15
or IS, Power is given to the earl of Leicester
to resort to the city to 'borrow money. Great
rrcasoo, because it is the chamber of the king.
—Bui the king's money not coming in, he de-
nreth to borrow so much of tbe city, and it
^■hall be paid when the other monev cometh
in; theendwasforthedefence of the kingdom.
Bat ifast therefore the king cannot command
aid From his sobjecis, because he borrows of hi*
•D^ects, is no good ailment.
Then he taith, the law delights in certain-
ties, Hi in the aids ■ pur file marier,' and to
make his eldest son a knight ; these are certtie,
as Ed. 3. All defence is ancertain, till we
know tba dSiik*; Mrtainly b« nuit b« » wIm
man tliat can do it. How shall a man know
how to defend, and not know what the defence
Tvill requireP whether ten or twenty thousand?
and must it not be proportionable to the
offence ? Is not this lufci/icre ntfijut et mima f
Where is the argument, that becau^ aids,
wh^ch were unct^rtain at common law, are
made certain by act of parliament, therefore
must this be certain, for which there is no ace
of parJimnent } — Oh ! hut ihe Taiilage in an-
cient demesne and burgage, tbey are certain;
and Mr, Hnmpdeo 'he was assessed at SOi. it
might have been as well 30/. this is uncettain,
it doih rest only in the king's mercy.
The writ takech care they shall not assess un-
Suallv: if Mr. Hampden be too high assessed,
r. Hampden mi^ht call the sheriffin ques-
tion i hut the sheritf of Bucks is rather to he
fined for setting him at sb low a rate as 20l,
We know what house Mr. Hampden is of, and
his estate too ; lor any thing 1 know it might
have been toi. well enough, — But to the iegal
part, some must be trusted vith it, and who
ihnuld be but the iheriff? and the parties not
without remedy if over-rated. Then ihey coma
to authority by j urisdiction, and ihat they that
have privileges are not talhahle, ' nisi ptir
' grand cause,' and that escuage must be set byi
parliament, which is by act of parliament ;
IT Johannb, that it was called Magna Chsrta ;
and so it was in Matth. Paris, and confirmed by
Hen. 3.— He speak eih of il as a thing ofstory,
and these were for foreign wars, as so npt to
our case. Oh 1 but it was admitted erery man
was to keep arms, 13 Ed. 3, 11 IL 7, cap. 18,
and whIUt tliey ate in their own counties, to ba
drawn out of tbar own chai^ ; but not to b«
drawn out of their own counties without wages.
Henry the sevenih, afraid of his own title,
makes a law, that no man should be ques-
tioned for being with the king in arms : this
was to lake away the occauon of the people's
talking, whether they went upon just ground.
— That many armies have been paid by th«
king, 3 Ed, 6, cap. 3, 9S Hen. 8, the rebel* in
the North the king promise th satisfaction. It
Hen, 7, cap. 1, the duty of tbe subject is re-
cited in it. — What argument is ihisf Wc shew
in all ages where the king commanded his peo-
ple tfi attend him or his lieutenant, and you
tell us that he paid oihec armies. 19 Hen. 7,
doth extend to wars without the kingdom, as '
well as within. 11 Hen. 7, this last did expire
with his death, this doth appear plainly, this
was by especial gift by the king. A Eliz. D^ei
911. Expressly it did not extend to tbe service
of any other king but him.
S3 Ed. 3, cap, 8. NuntLConsirained to find
men at arras, but those that held by such ser-
vice. This must be understood with relation to
kingdom was in danger, that they should n<
came.wBs no excuse.— Oh ! 86 E(i. 1, Roygnod
de Gray durst not levy men without pay.* The
* Baronibu f legend is pro bomiDibui Scot,
051] STATE TRIALS, ISCnAiiLEsL 1637.— 7^rK»i^ «5aw»( Join JBfflBpA»,P*9. [953
marginal aote clean this, and sci d'i part of our
'jiii^iioni audit appean by Wnliiogliam, lb.
74, 75, ttiat tlie king wof actually tlieu in ^cot-
Inud, nhere lie fell I'roiu bis Imrse, and lost tno
of lib ribs.
Ill the neit place they saj, Trin. 31 Ed.l,
there ia a. refusal to gu Hiilio.it |>;it. The war-
deus of the inurciii's i>f Cutuberlaiid and Wcit-
luorla 11(1 writ tu the Liiroiia, ihul wiicieus tlie
Scots liijr ufar tlic dinrcbes with ii urt'it army,
■hat the people would nut march uut of ibeir
counties without pay. — This is easily answered;
there were ihe Ease niurchej, and the Weit
marches of Scullai id, several cu unties betunging
to each: what rcasuu liud ttin to gu out of
their uun marcbc?, unless they liad monej for
the kccpiaj; of them in their absence i Rot.
Pat. 10, or 11 Ed. 3, purs 2, ro. 26, for war of
Scotland, 0 EiL 9, tjie sune dischurged in the
countj of Norfolli. 13 Ed. 3, lo. 38, the abbot
of Ramsev, bedause he remained in liis own
county, discharged; it was no absolate dis-
charge, but fjutn f'C inltndU. 31 Ed. 3, IU>i.
Franc. Some are discharjied from the custody
of the sea, because ihey were prompti at home ;
Boroc for finding ln.hfUers and orcliers, and (his
mis by reason of a ^raui in parliament; some
v ere (lischnr^^ed, becanw of their stay at lioine
in guard the coasts. Tliis proveth the right of
(he personal senice, and of the contribution.
Anothcroliiecliouisihalof'il Ed. 3, Rot.
Frauc.. that [lioy sUonId not be kept coDlinually
ill array, but suffer them lo stay b their own
cuunti(:s ; hut tliey were to go its soon as there
was any notice uf an enemy.— This was for ifae
wars of France, and not for the defence of the
iiingduin. Oh! btit 30 Ed. S, m. 6, Ilot. Scot.
thiTc mere ' Esploratores et vigiles,' which
were ' Incniarnm ;' but how ' dc asscnsu et to-
luntate V But this wns nothing, for it was with
assent in the Nortiiern parts, and had been
ilnne in funiier times against Scotland. Tlien
tlie 100 RutI of Fetcrsliam, which I conceive
rather niaketh lor us, ilicn ngaiasl us; for ihe
castle DfTuiibriilgc id to k-vy lil. for the king,
pro lalvaliont of the ensile, and to Iwy it b»
distress. 1-1 Ed. 4, cap 19, tha king could not
compel the subject lo sell victuals fur wars, nor
to provide fur lliccustlcin the tnwii, 23 Ed. 1.
That was for Scolloml for payment of vlctoals,
and who can command n purveyance but the
Liugi aiidtlint of thejcastle, it was the v'
■IlinC of his own castle^ and subjects
imund to victu.il ihcir caalles, 8 Ed, a,
VD, ihe inatcbus provided for viccuais, and par-
ticular men paicl for victuals, but tlivy do
shew from whence that money came,
next isli'<rwt fur the kind's seriice marked,
that if llicy were \o;t..tl.ey might be satislied
for. 2*Ed. 1, Kcibert lost a horse won h
30 murks, and received satisfaction in the Ex-
chequer, somenlrat also for wuees, m. 36
£d. 1, rot. IDS, 106. Thnt is only a Cuncor
•lat how men should he pajd, uhac llie horse-
men should have, and nhat the lixilmen : for
Torkshire, KoriliumberhinJ, and Cumberland,
nen tu havft uo nagcs fruui the king, but
go against Scotbud ; yea, that is anMbrr ihin^
' *i cuntra Scolos ;' and that diitiucliim, upon
Slating of (ho Ciise.wiil go iliruughout ilEd. 3,
34, for cnstles. 24 Ed. 2, 7'^, TU, durs. John
de Sandell. Berwick was taken from ihe Scuts,
and fur furnishing of Btrwick castle, ihe people
arc cumpdled to trust hira. Uh .' but ihc pri-
soucTS taken in the war, and liosiages, werckt
the king's chnrjie. 8 Ed. 3, ullowanccH iu the
Exchequer fur it. &Ric. 2, cap. 11, exaiuiiieU in
tlic Exchequer. — The king, if he hulh a pri-
soner liikcn in the war, lie Is to have liis ran-
som; shall not the king pay for liis clii9r(|c?
4 Ed. 2, Rot. IJ. Roper dc Salvai;e, a Scoiish
prisoner, ihe king bore his char,;es ; so because
the king payelh the charges uf a pritonir for
which lie liu'ih bciielit by his rjntoui, therefoTe
he is to defend llie kingdom.
Dyer 1G2. A man in execution ~caiuii>t be
forced to go to ivar,
Uur writ doth not desire to scad meu in exe*
cucion to go to war, fi,r there are enou^ be-
sides (hem. Then they object the barrowing of
miiuey, and the king paid again for it, pro )iq>a-
Itii urgealmiinit. The kiug may have occa-
sion 10 borrow money, and reason lie should
pay it; notliing to the question.
But the cose is, wliether ail the people, fur
their wiic*, and for tlieir laauiies i>ufi;ty, ami
for the satety of the whole kingdom, may not
be compelkd to contribute lo it^ The ntrtrat of
Gloucester gave money to mnintaiu n damsel,
the kii^ took his uioney for ttie present, and
paid it beck again. This was ad exoaeraiut
conKientiam : ibnt Ibr thinss inkeii away wiib-
uut warrant, the minister should answer for ii,
nut pay and repay, but shall bold themselves Mk-
tislicd with reabou. But Ibey object, that 9fi
Ed. 1, a cQiiimisiion went out lo inquire, ' de
* rebus ca^lis, !^ve pro custodin maris, &c.*
nnd ilie kmg saiib, that ' il frra tauat que s«
' tcnderont a payse pur reason.' True, < sc
.* tenderont a payse, &c.' which is not (o be
uiidersiaod, (luii the king will pay or repay;
but that diey shouhl hold tliemsrlves satisfied
' pur reason, that is, he would giie tiiem rea-
son why they sliDuld besalisfitd.
Alay it please your lordsliip ; I slialt go on.
where 1 lelt; only inform you hf one Record,
1 Ilcn. 4. Tlie writ that went for the anvy of
ilic bishop of Canterbury, which doth recite,
that whereas tlicrc was danger upon the sea,
he and all his clci^y should ' maiios appnaer*
' adjutrices.' I speak of this, because it wa«
at S'l low a time as Hen. 4, and it was, ' p.-«
' salut' pnpuli.'
Coia' Pr 14 Jac. Between Weaver aod
Ward, command ~^^nie from the king and
<M)iincil, tliai the Train-bands iu Londun should
be mustered for the traiuing and making of
theui ready to defend the kingdom. One in
the training hurl liis compaaion, and he there-
upon braugtit Ills action against iitia: aiMl this
was pleaded iu bar. Hat lie waj mustered by
y53] STATE TRIALS, ] 3 CHAHtES I.
; pecUl coninand ; itnd tbi* was adjiiilged a
good juatificatuni, because it whs fur tbe pre-
tervaliuii uf die liuid : S8 lieu. 8, which recited
tbut the king did pay them in LiiJCotiisfaire ;
but for liie oclier, lie (aiih, itiut he shall re-
lueniber tlieir paiui.
I shall now go un. It was objected, tliQL by
the statute f>f William 1, the people should en-
joy their Innds freely, '.sine omiii injusta ei-
' actioae live tallagio.' This was jiir mimey to
be received, for a §!eneral thjii^ ; but (hat it
was not for this tiling apjicareth iii oue chapter,
that kaiglit'itervice tenures should do what be-
loneed CO it. The rest ' suat fratres conjurati
' aamouarchiain Anglimdcfendeud': 14Kd. 3,'
chap. 1 : 25 Ed. 3 : 1 Cd. 1, Walsinilium 164.
All these are act luide by the ttitute, and con-
cern uot our question. Ours ia rateable and
propori ton able, according lould jiraciice. And
It is oue tiling la compel a particular man, and
another thing to set an equal rate upon the
, whole kingdom.
UIl Feb. 3 Car. A Commitsion of Loans
for the Defence of tlie Kiiigdora. They mean
i,by r
n of I he
f the
ir Impositions, or otherwise to raise monies
not concemit^ thii question. It appiati by
that, that ihe king gave a grncioiis ansncr unto
it; Bud tliHt it wa* done for the present riuie
only, a warrant for advice orly. It was done
tn mise money in general; but no detennina-
tiua of right, and said, at your desires it shall
be cancelled. Then there was a commission
tor liians, 5 Feb. 3 Car. and this they say was
for the defence of tlie kingdom. It appears it
was for the defence nf the Fnla^natc and Den-
mark, and for that a bishop was sententjed for
his mistaking; Mr.Pym brought up the Articles
against liiui.
I shall now cnme to au objection, worthy
(he making by Mr. St. John ; and because it u
a thing not truly uuderstood, but taken at ran-
dom, I shall crave your lordship's patience;
and that is tlie statute De Tallagio nonConce-
dendo, 95 Kd. 1, made nfier (he king itent
into Flanders, and agreed upon here hy (he
prince as viceroy, and afterwards sent into
Fbnden to he sealed by the king, as it Is put
in some books. The words are general : no
Taillage (o betaken without (he consent of the
lords m parliatneng. For this I desire (he li-
berty to inform ynu of the story of the times,
to make a hetler answer. This is not all, in
tome Statutc-Bnoks it is not mentioned ; in
others, no king's reijin mentionMl. And
£d. 1, »o year of it, and noc ittey would ap-
ply it -to the 35 Ed. 1, and this they would
ground upon tlie compeilini; of Aid, 93 & 24
Ed. 1. And the commission in 94 Gd. 1, did
issue opon that, and consequently that tliis'
aid was the aid complained of, ai'id tlien re-
dressed.
Walsjngham, a monk of St. Albans, they
rely upon for thi>>, that tvrote some se*en.score
year* ufier the thing wai done. Sir Edward
l6y!.~inl^CateqfSMp-MoiKi/. [!)54
Coke saithj Chrddcle Law is nut much to be
regarded. True, he saith, Chrontcle'historiei
may sitew us the times, but if it lell us nhut the
law is,.we are nut to believe them. No histo-
tian, that I ever knew yet, ever read the He-
cords, and therefore no true history ; for the
most part tliey are taken up in Paul's, or the
street. — To take something in consideration,
by nay of Staling the case, upon the statute
Confirma. Cliar. and the other De Tcillagio non
Concedendo, tliat is, that no aid shall he levied
but by consent in pnrlininent.
liie Arst statute is, tliut no such aid shall
be levied, the nature of it, and the acts them-
pje against the case. Three things for ihe true
understanding thereof must be considered.
First, Whatliind of aids hnd been in use be-
fore 3S Ed. 1, and for what they are taken.
Secondly, How and what remedy was gi>en by
that stnlute.. And, Thirdly, How fur that
statute Oe Tallagio non Concededdu is in force
and authuriiy in thij case.
For the first, it Rppear?th in the oonimon
story, that in SI Ed. t, the king of France bad
seized all tlie duchy of Uascoignc, upon pre-
tence tliat be did not appear ut his parliament
at Paris upon a summons. Thereupnn (he first
took a course M the regaining of his duchy,
and the war continued with various success,
till 95 Ed. 1. And he had also war with Scot-'
land and Wales. Fur though Wales was taken
19 Ed. 1, yet there was one Madox who pr(>-
tended himself to he~of the blood of the prince,
till ^3 Ed. ], and till that year they »eie not
? dieted. And he having all these wars against
landers, Gascolgna, Scotland and Wales, some
at I .)E time, some at another, and most alto-
gether, divers aids and supplies were taken
upon these occasionsof several natures; some
nera.by voluntary grants of thg people, tome
weT« by impositions and levies by the names of
talllages or taxes to be paid to die king, some
by assessment of lands, as the abbot of Robertir-
bridge, 95£d. 1. All this appearetb by the
commission tu enquire of extortion. And be-
sides all these, some by prizes of {{oods and
money taken Irom tlie possessnis wiiliout any
payment, rates, or taxes. Nay, there ivns tlian
ransacking of the monasteries, and taking of
die monies f^uiid (here; Mr. St. John's case
far money taken out nf their treasury : Rnd.b<^>
sides all these, (here were some by way nf ran-
som, as Mr. St. John rightly obseneil, and
shewed his learningand industry, that the clergy
upon their denial were put out of the kini^'t
(irotectiun ■. nnil they <tid rausum tlieinsi^lvcs
by giving a fifth part of ilieir goods. Pat. 9ii
Ed. 1, m. 11, pars 3. The'people being ihua
grieved with such aid and priiies m exlraocdi-
narilv taken for the maintenance olTorei^n war,
obtKined that it might be enacted, thnt such
aid in ■ relative term-may not be granted imr
taken without llieir ciiihent, by the statute ot
35 Ed, J, andConfirda' Char.. Ob^me this
one thing,'ihe markets of England three years
.before nid granted the king iuliidiuin yira
95J] STATE TRIALS, ISChaklbsI. ISSI.— The lOlgagaiiut John Hmgtden.ag. [9SG
gurrra, npon everj lack of wool fire marks ;
three marks upon woolfells; upon every pack
of akiiifl five mnrka ; and this was granted of
theu- own free-wiil, and thb was to contjn
fur tHO or three years : 'i2 Ed. 1, m. a. Si
Holt, where iC is there relicteij. Next yenr,
before Confirma' Charca, all (h« laity, eicrpt
cities, burout;hs, and ancient demein, hr "*
grouted to ihe kiog in lubfidium pro guerr
ihe 11th port of tlieir gpodi, 94 £d. 1, m.
Pat.par>9. And tbe aummer before Conliru.
Chait' nil 8th granted by all the laity, exec
the cities and boroughs; and they granted
fiitl>, aiid thi:, wtu still for the w«r, 95 Ed. 1,
m, 11, Pat. Tlie ajiplication is ibis; Those
many aids of tliese eeverul kinds- haviu^ been
granted for the war, divers meti of tbnt tine
did doubt and fear, that however tliey mtint
it but for a certain time, yet being not so dearly
expressed, it might bind ihcm fur the future;
and that ihej so doubted, appeareth by Con-
dratu' I. har*. And Torasmuch at divert of our
realm are in fear, that the aid and taxes which
tbey have dfen ui before time towards our war
nnd other businesi, of th«ir own gifb and good-
will*, might torn to a bondage to them and
thair bein; and likeviae Ibr the priies ta^eti,
me do-grant for us and our bein, Uiat we shall
draw no such aid, Uvxes, nor prizes, into a
custom, for any thing done heretofore, be it by
' rule or any other precedent that may be found.
Tbea inylonls, fi>rno occasion such manner
of aids, taxes, or prizes shail be cnken hut by
coiOEiioii iMjnsent; but it endetb not so, saving
the antiant aids and prizes due and accnstoined.
This bemg the state of the case, be pleased Co
obserre the coiaplaint' of tliB people; this kind
of aid, it is plain, was never meant there, *hen
' salv popnll periditabatur,' and may be levied
notwithstanding' the statnte i for the act is only
against such kmd of aids as bad been volun-
tarily gnuited by the people, tome by fner-
thaiits, and tnme by others, that they should
~it be taken against theb wills liereimer, but
n parliament. Suck is a reli '
ral no aids, hut iio tuth aids.
by content in parliament. Sack a a relative,
Secondly, it refers lo tlwte that were volun-
Urily granted to the king for Scotland and
Wales, nnd bis other wars. And another
reason why these aidn that had been for tiie
custody of the sea, could not be snid to have
come of their good-nilk : for observe the abbot
of Roberubrid|e's case, it npiiears plainly it
WAS done against tlieir wills, for Che cuttody of
the sea, by virtue of ibc kiog't writ.
Augiuil before Continn' Char' those that had
given im 8th part, they did obtain eipressly
lettars pntenlf, that such ihpir fri^ gifts, here-
after, might not be in irrviUtrm, 95 Eri. 1,
thaf is the very thing doubted in Confirm.
Chat'. Now those that had granted aii 8ih
bad no rensoa to do it, for they had a charter
to Iree them, bat the other Lad not : and there-
fore the ttatucc mi|>bt '%«ell say, some did (ear.
So upon the wliole mnCter, there are uo other
aids but thCM voluntarily granted at that lime,
nviw in tb« body of the aet but those grvnted
with a good-will, Ibr those foreign wan; and
the forty shillings received by the king upon
everv sack of wool, with three marks grvited
S9 Ed. 1, was liy the metnjhantt only lor tbe
war in Gascoigue ; and thereupou it was
enacted, ibnC (be king should not take mch
ibiiiES- but by consent.
Tbere is also in the statute ConSnna' Char'
an exception, that all antient aids due and ac-
customed were excepted; and ibereti<re whal
Lihd was tnennt in the body of ibe act, the ei-
ception makes clear, antieni aids excepted ;
this was an ancient aid ; xnd therefore never
meaul there to introduce a new law, that no
aid should be taken, but no inch aid. No im-
positiou tbonld be taken ; but the practice of
all nges shews this hath been levied vter since,
from time tu time, which is an interpretation
of the words of tbe law. 'Htii I doopeo, to
make way to the imlute De Tallagio mm Con-
cedendo. Thrice in the statute » this word
(tuch) but that ihey should make ute of ibat
statute De Tallagio non Concedendo, of itsdf,
without relation to that ; whereas it will appear
it it a mere extract out of this, and no itaiate
itself: for debate of (bat; this De Tallagio is
the s.ime with tliat Confirm' Char', it is a plain
niract of it, or some other thing at some other
time. Sometime in some printed book, ' nri-
< lum Tallagium,' uo aids bhall be taken by tba
king: sometimes without notes of time when
made, and at the hesC it is no more, bat it is
said it was made in the time of Ed. 1.
If we shall compare Co^ifinna' Char*, and
tbe articles that were in this, we shall find it to
be nothing but au eitmcC out of that stalat^
and iliaC it was no act of parliament. And to
make it appear it wa.i aiv extract taken out of
it, observe the general beads, De Tall^io nan
Concedendo. First tbe charier against prizes.
Secondly, Another against wool. Thirdly, A
^neral confirmation of the laws and Lbertics.
Fourthly, A pardon ta divers lords there. —
These are Che things iu which they would make
it a statute of itself, all expressed in Confirm'
Char* they du not dilfer in lubsiaoce. A sixth
bead is the very year of Ilie 35 Ed. 1, for tbe
pardon of those lords was mnde 5 Nov. i5 Ed.
I, ihissBHie was sealed by the kioi; word by
word, proved by the statute-roll, the lery same
roll that halh Confirm' 'Chnr*. the next Ibl.
The monk did irislnkc this statute. No man
will believe a ruonk, cimt nrote aeveoscora
years after, against a ret^urd.
I shall ^hew what was sent over into Flan-
ders, and that was Confirm' Char, and did bear
date the 10th of October, the k>ng being theu
in Flanders, and was there scaled by (he kii^
himself. That it mny appenr, there is no
manner of qdesliun of it, here is the very copy
of the statute-roll ; and the whole Con^rm.
Char', is recited verbatim, in witness, 10 Oc-
tifber 95, of our reign : nherens Wolsit^hsm
siilh, that this very charier, word fur won),
was sealed in FIsndrrs, under the great spsl of
Ensiand, i Nov. 2S of oin- reign, and mxa
hadi into pjigland. For tbe ttDtuiw^oIl
«57] STATETBIASB, 13 Cbabia L 16J7 — m Ac Cait <^ Sk^Xono/. [0
council for lh«7Mffi>Un»in|[; Ibe muabarM
meu tbat were Mugned, and Ucj ■*„« niv
to give good coQtud for tiw aid t/tliahiBj
■gUDit that time, dotb expreulj tnf, that Ais
waa the charter ttut naa (eat over Inlo FlaB-
dcn, and huh the snme teste, word for word
and chii wu sect back intc England to ooBfirm
it further. The ceit ihin^ that fblloweth epoa
the aama data and roll, u the pardon of the
cmIs; this obs dated 5 Not. alter this Con-
firm' Char, was sealed.
Thej bsTC not yet Kbewed that tlits statnte
DeTattagio uon Concedendo was ever catered
upon the roll; nay, it caold not be eotaicd :
Who would think tlint an extract of an act of
parliament shoald be entered open the ruU i
If tbey can quit Mr. Walsinghnm, the; arawise
men : tb^ must carrj the practice ofali times.
Where did aoj man see that this act of parlia-
nent was ever shewed to disdiarge men of the
defence of the kinRdom mace 95 Ed. 1 ? Did
no bod;r know this mjttery to plead, not to
dcfcTid (he sea and their land? Did no man
hear of this till now? Shall this, against all the
practice of the time* ever since, take away
aucHi a flower of the crown, as lo compel people
to grant aid for the defence of thenueKesf A
barth constmction ! — If this should be true, it
wotdd destroy even acts of parligrmeat : to
what purDose is that statnte made of the 85
£d. 3, if UiaC were totally taken away before 1
and if DO aid, thoae aids ' Pur £Ile marrier, &G.'
ace taken away also. Nay, if this be an act
of parliament, when was it made, before the
35 Ed. 1, or since i It appears not when : it
ii indiwgviwi tagum, I know not what, but
in truth an exu«ci. Nay, if ihii be an act of
parliament under these words, no t^lofp >*
equivocal as well as aid ; that is proper taiHage
that is laid apon villages. 95 Ed. 3, 100
Avowi^. Entries 400. b. 8. Ed. 1, Execution
tiiis in all i^et.
Then it waa objoctcd, that S5 Ed. 1, m. 7.
pan. S, ai|n«Ned in the king's prodaoiatiBn
19 Aug. belbre ever be was goii^ into Tlfto-
den, that he was sorry for ibe a^ ~
a he did demand those aids which be
sorry for ; tbey were aids grMiled not for the
defence of the kingtlom alone, but for the de-
' fence of the kingdom miaed with foiwtn dc-
fimce hyTeawnofwartwiihGaMNugne, Wales,
Scotland, and elsewhere; for that it waa for
foreign wars. Upon this followed l4ie eommia-
HOD, 36 Ed. 1, Pat. that went to all the king-
dom, which makes for ns.
Tbete ate three parts in that coramission ;
1. To obterre if the oliic«r did any thiw wil^
ont warranf, tbey ihonM retorn it. E. ffdone
wrong, the kincwonkl answer it. And, 3. They
sboold be satisfied with reason if the king did
warrant it. The answer tbereanto giren was
Bpon another Mnstnlcl ion made of the wards
of the reciird in the parliament S Ric. 9. The
oauae was this : the chraeellor declaring the
caose nf calling the parliament, be doth sl)ew,
that the king, in the end of the lastparliameot
had aflBi{aed ton* iMda to be of bi»ooiMiniwl
These
rating tSOt peril
and ihe HWer n
liuA.
mfnt-
nue* from all parts, and ibt HWer rMriW
di^HUch, they dnru not undettsw tb* gett-
ing of so perilaiis a thing, therafr* „f4gi a
gmnit council to be aHanbled. Tbe *•»<
eouncil w«s asaeaiUed, to wftn ■aihrwii
the great peril and misckbtf c iJakioe*
dom apart, by war, by land ant ■■ ; (d tba>
nothing waa tvmaMur in tbe l»aujyfcr (l«
maintcnanceefwHr: f or a fiaal itie)„Bp^ i),^
tbey mi^t nmedy this mischiciiM«^ that
it cannot be done without psrli^jt, ^^ f,^
the Eaglisli pfit, and in tbenn time an
army nii*ht be landed : And. lihe preieat
supply of the diage of Mcb an «., t^ ^„
the king great soma, which by gMfcuijiyairf
other naoo, he did eogaga hil|f » pay;
Upon this the lords did advise b^Miubt b«
done wiib tbe least diaige to ^ aH, and
how the luDg^s ligfat of his crown, i other ia-
baricance beyond tbe teas might ^^ ^nd
tbe king, kiogdom, wd thenwclKefoided,
to the confhuoa of all their encmi fo ihia
purpose the treasurer ^as directed >« ready
to shew what was expended the » pariia-
menC, to be btntowed for iha yamt^f ^g^t-
land, Wales and Ireland; and taia that
great coDndl, they cotdd not remeri^i mi^
chief without charging of the cenmc hUcIi
eannet be 4one, wy they, without ptunent. '
—It iepfaun, by tbe story of that titntid ih«
wnrds of the dienceUar, tha« it wa^r the
maintetwooe of the war in Friince,]||BniI
and Ireland, And tben^h the def«i*f the
kin^om be meniioned with these waret tbe
mam supply was for these foreign nn
In the next place, a little brfoie io;ra:w,
hament, the like aid for the Jike occasffra*
desired hv ibe king, 9 Ric. 9, m. 34, i^Tarl-.
Roll. What did the eommonsuy new iher
oaghtnottobetrMchfowigncharges. TKn;
a Mr answer, adoionjshei) Ihelbr
eoMcenwd ibe kingdom of Eand,
IS a BriWaA to the ki(i«iom o4>g-
>Mionisan»ld7ortdeHor«; ijbe
that parliament was widU*
rehtionateansonant; both togetberctmi^d
tbe Menee of Ibe kiagdoni, tbu tber whAe
httlwa^s far tbe kingibm of Enghnd.— Me-
nut alMce, who spake tlifse words? Tbe Ha,
sai<t they, eootd not remedy riie miscbief Uw
out a parliameat. The lords asstg;aed hjaf
p^rtiament, they mmt nut <b it ; it is dedd-
ent upon tbe oiner part, the lords conld nilo
it that way. ■
But shall we come home, and ipcAk Jin
EngMi? Weknow this wBs9 Ric.t.a^g
prince. It doth appear expressly, that S
thinp were brought into the pariiaAenKir
adrice, which were fit for royal authi^,
for expenee for wars, luirf for counsd, andiir
Kireming of this realm. It appear* furtheJbv
the very chaaceltor's speech, that the cojcll
bad been berctofbre «rdaii>ed for tbe goainc
fdrlhM
1 STATE TRIALS, ISChau-uI. iSiT.—Tlie tSn^agaiiMJolMHaw^xlat.a^. [9G0
ithe kingdora, S Ridi'. 2, Rot. PxH. Thi«
plisment taking notice of the kiiig'» tender
?i tliey ttH>V.inach power uato tbemielret.
"Ire was to ae & council fur tbe gnierning
sfe kingdonin f^eral ; but the cuunttctlors
shid b« choen W govern the state for two
jea and th4c counsellors Dot to be removed
frontbe kii^ wiihout the partiunent ; and
niorthan th<i ^'^ treasurer was to be govero-
ed b the iBiiiaiiienI, and bis coansellors
cboseiiu niiiiinent.
Atteenc'the Petition of Ri^bt, neitlier
-lords iifc«"0'".' joinllj "O'' severally, can
make aiei*'"''''K'ut his consent ; and [hac
jour lorishV ■"'' "oi>« but jou, are tiie in-'
ttrpreter: tbe luw, wJM king James did
declare.
Tbe nc^'iig coiiiiderable it, lenrput belli
todelend i'- " when Aie condition of the
time is su^liat the i^urreut ofjuBtice and law
' is by sudo'euce slopped, as judges do not
nt, nor s*^ 'lare execute llieir office, nor an*
court is">, especinlly tlie Chancery, which
is Offici'ustitise. It was said tliere was a
time »l tl>e ling might command this levy,
to wbic-bey did agree : They did agree the
king n^ command this levy when he hath
priKlad a war, thougli nu >troke strucken,
no dar, nor armies, nor opinion of any force
comiii ibis dolh put it into the kiog's power
{.1 tl.own consent. And by all reason, 19
'Ed. i Brian's 0|)ini(in. Eluw many wars
hare '» proclaimed in this latter ^ef No
var .ounced in 15S3, though consulted of
in &f i and tliev did not think fit to de-
nouna war, saltn sir Wult^r UaUigh; those
days* past. Now tbey begin by [lie snord,
Dot tbe trumpet or licrald.
Iree next place, ihcy tay, ifihf king be
in tiield with his banners displayed; tliis
thc^.y was Itiiipiu btlli. Cannot the course
ofwe sit then, l]ut there nrustbe a peace?
39. 3, Rot. 10. Did not tbe court of justice
•ilieu f Our ordinary piinted books shew
wl causes of law ibeo were. And in Henry
Cme, iu all our civil wurs, and iu Henry
tb's time, ihfy sat then. But the truel'— -
taake it teiaput beUi, is to make a
apst the king.
I the North, towards Scotland, when tbe
cn^ approaches, is it necessary that it must
bi tuiie of peace, because the court ofjustice
silt Westminster-hall f There may be then a
Stag war in the North and West, as ever was
il^.ilglaiid, when the court of justice sits bere.
Tt ttmpui belli taay be in some places of tbe
ktdom, a^d in some plaras not, appeareth 33
£3, and who shall discern if tliere be any
d^er f — Tiiey agreed in general, the king may
d*, and that the power ofdisceming is in his
mi^ty: I shall leave it in tbe kii^ till Mr. St.
J<a Suds a third person to do it. 13 Hen.
. 4,ir tbe murage, they say that this dotii only
cb^ those things tbat are vnufiii, for,nien
ainot compelled to ^ to market. How shall
lh< tjien live? True,it isnatcumpulcory togr
Oiktr, but it is compulsory to pay tbe noaey.
Ric. 8, m. 176, pars 8. A petition from
the city of London, to have all owners ofliiDds
be rated with tbem in the danger of wars,
t liaring lands in tenure to do it. — Hiis doth
make lor us ; that not unly merelioiits, but every
man in the lieu of tenure lo do it. The Lord
St. Albans soitb of Heary 7th, [hat kings may
AiU from their absolute power when they see
inse, but not be compelled to do it. Tbey say
ipplies ore called iliose things, tine gua nai .
the kioedom may not be defended: And be-
lusa there is a nay by parliament, iheieferQ
I otiier way.
They say, it will not baaffinned that tbe kinf
liath ihe same power for an offensive, as de-
fensive war; I affinn, nor defend uoCliing; tite
parliament is a great body, and tiie kiai;doin
may be lust in tht: interim. Then they aliedge
there is Ibrty days for essoinage, and tbe like
for parliament. Many limes things bi« int-
possible, and inconvenient lo be done.by paHin-
Firat, imposMble; the necessity may be such
that it will not brook tlie delay oi a pai^tnment.
48 Uen. 3, summons to the Cinque Porta.
They come day and night to the Ling when any
dnngeris. It bath been boid, ihat there are
seven months between the teste of tbe writ
and tlie sliips beinn at Portunnuth; in 'i hat
time a parliumtnt might liave been summoned.
The great one, and the true answer is, thnt this
resletli still in the king's judgraeot. If ibe
king haih intelligence that foreign states will
set out the next spring « Aee^ and for cod-
veniency of his people sendeih seven montlis
before-hand to nMv this aid ; bath tbe people
any cause to comphiiu of tins 1 Mr. Hampdm
hath not paid the money yet, being two yean
If tbey should have gone by parliament, see
what robs in this case might be. Forty days
are spent before the parliament sits: Then
when they meet in parliament there is a cere-
mony in choosing of u Speaker, solemniiies in
tliese take up lime : Then the lords take things
into consideration, tlien they must have con-
ferencesaiid disputes wiih holh houses; be&re
they agree, the kingdom may he lost: In tlie
mean time, suppose this comes in some reasoit-
able tinte, to make asset^enta &r3t in the
cities, then in tbe burroughs, ibeo particular
asserabliei, then divisions ; and after aU this,
there must be collectors appointed to levy tbe
money; what a great deal of time is spent in
ajl this, every man may see.
Our county, say they, is an inland coonty,
and they cannot find a ship suddenly ; and
therefore the greater the king's mercy and
favour to lend them bis ships instead thereof.
When all this is done, and ships provided, rea-
sonable lime must be allowed to sail from the
North ta Portsmouth ; but this doth solely rest
in tbejudgment of tbeking.
31 Hen. 8, cap. 8, an act of parliament not
toJ«ke away any of their inheritance or lands.
Here is no lands or goods token away; only
let tbem coatiibute to the defence of them-
961] STATETRIA15, ISCharlesI. 1627.— in the Catm^Siip-Mbaty. [9C«
•elves, aad all is done. Mr. Himptleu l^lh
bud none of bis goods touclied. They tay. Tor
■hipping it was done in kiag John's time at the
aubjecU charge; but ihe; do not meddle with
Ikiid-service at thnt Ciinc. 15 Johan. ]3, di
Rot. Claui. Line John had business btjt
the sea. That mis nKi rather fur beyond s
ihitn the kingdom, appeareth thus : Tlie t
Milb, to ha>e such ships as would carr; eight
or six horses, and tliat mUit needs be for some
fareign service, and ntit fur iand-i
home. And it appeareth. Rot. Claua. m. 1,
dan. the king was well landed at Rochei.
For the terms of tlie lav, which cu
liidajge and other things. Bract. 3r, and sorao
sen>ii;es introduced bj common consent, I '"
not trouble yoa nitli it. To come to the
of the abbot of Robcrtsbridge, tiint arms
laid on bj tlie statute of Winchester, That
irill not serve, arms was long before that time.
They say the asses* was in liaie of war; thS
French had burnt Dover, S3 Ed. 1, and that
the osiessment was not made by ttie bing's
authority ; hut it appears it was by the king's
authority, by virtue of his writ, 35 Ed, 1, d,
Treas. Enmemb, Liy bourne was admirnl of all
the kingtiom; and wasCostoaMarisetMaritim'
for some parts: but that il was for land-ser-
TtCe, niid not far sea-service. Custos Maris ei
Maritim' are terms convertible ; be that doth
tine, defends the otiier. They have left no
Stone UDtorned to take away the force of this
c«se. They tell us now, the clergy was put
out of the king's protection this year, and so it
^pears in the Giicher|uer{ but they have not
■hewed any snch writ delivered into ihe coin-
mon-pleas, only Spencer's word of mouth, that
ihey diould have no pritilege there. Suppose
'n other courisi 35 Ed. 1, it appear?
» .k.. ..1., ^-^ n ... L- .„ .L-
plainly,
king's I
thnt the clerey c:
protection, and gave
! ell to be m the
ind this
I till MTchaelinas after. And
whereas it ia said, this abbot's case did only
concern the land'Service, it proveih both the
one and the other; money for tlie sea-service,
horse and man for the land-service. — Oh !
Ihey say, SS Ed. 1, Mag. Char, was uQt ohter<-
«d; and instanced John de Cr:iy and Philip's
case. Whatsoever was the practice of that
time, is not mnterinl. And for that of tli^
Charter of the Forest, they say, though it be
(here said, ' Nullui emittat vitam vel memhrum
' pro venaiit>ne nostra,' yet one wns btheaded.
But what is all this to the safe custody of
fte sea* Nay, they haveliot shewed your lord-
■shlpi, that mere was any thing in tbat great
charter for the custody of the sea. 51 Ilea. 3.
, tlet. e
Lord
fol. 81, Britt.
Coke on Littleton. Perhaps question micht
be about this in the exchequer at this lime, Die
case of ShOrehain diacharged of Innd-service,
because they found shipping. They IliAt were
nearest danger most tit for thnt defeuee; as
the Ling, in the tenth year of his reign, MOt
only to maritime ton-ns. 3 Hie. m. 4S. They
My Beverly was discharged, because it was an
inuind town, tlierefote no mlaod (onn otighl
VOL. fiL
to pay. A Writ' directed to W-ilHam Russel,
admiral, etimmandeth only the sea coaats,
13 Ed.-S, m. 35, Rot. Chiui. Fart. 1, after-
words discharged, because of otiier setvice.
And for that of Beverly, a cuni|ilaiut that
they were to cootribute to such a town It) 6nd
a ship ; tliey say they have privilei^ea, but thi
special reason why it was freed, was for reve-
rence the bine did bear to St. John de Becei<-
ly. Mr. St. John knows it ; ISO ships granted
to the two admirals. North and WeM, tor set-
vice beyond the sea., 31 Ed. 1, ' de iDveoieodo'
horses, because of great business in bis wan
abroad, he bound Uiem to make galleys for
foreign tervice. True, tlie king at this Umc
was in Scotland, and kept his Cnmtmas there.
Then come to 31 Ed. 1, as though he shoul4
do It bv service of the Cinque Ports : Nencastla
upon 'Tyne at their own charges ; hut when inta
Scotland at the king's pay, then they came lo
this. 10 FjI. 3, ni. 6, Rot. Cluus. sent for
ships into Nortli-Wales and Soutli- Wales; the
writ did say, that wages used not to be paid for
such service ; and did eipress in bis-ivrit, latis^
feciion should be ^ven unto them, not of right,
but dr gratia : and reciteth that clause, that
the people were bound unto it. 2 Ed. 8, IS
dors. That there should be three hundred
poujidi to relieve the fishermen, the king sboulil
not have, it of the people of tliat town. They
any all these records being mailer of fnct, did'
occasion the inaliing uf many statutes of re-
dress'. 14 Ed. S, cap. 1, great aid for Scotland,
France, and Oa«coigne ; 15 Kd. 3, m. 3, con-
trary to Mag. Char. 33 Ed. 3, m. 4, 3S Ed. 3,
in. 9, no goods tn he taken i> itlioiit consent :
these are things coinprehended within tlie Pe-
tition of Right. 37 Ed. 3, m. ?, speaketb only
of the great aids. 33 Ed. 3. Galleys mode;
they say the'lting paid for them ; thnt is, upoa
the king's own promise ; but they sny that is
•ivdiim puclum. Then they say, is the kind's
ivoni nothing? 13 Ed. 3, m, 9, cnlled a'parhct-
ment, propounded as on the king's part ; they
not liable to the defence of Oie sen. If
:ommons have nothing lo do with the
guard of saa,wliy is it propounded unto them?
30 Ed. 3. m.— Thnt the guard of the se»
benceforwafd be marie at the charge of the
_ as hath been promised, and there the peo- '
pie disrharged. Tiiey do not aflirm in their
case "there was any right. B! Ed. 1, rot.
\c. m. 0. 2s. on merchauts wools, and 6d,
:dage for a certain time, and to cease lam
juom, &c. 33 Ed. 3, 3». upou a sack of wool
maycsose.. All these things were grunted for
foreign wars; and if tlie cause should cease,
thon ihe thing should cease, a Hen. 4, com-
mission for building ofgalleys, the king would
confer with tlie lords about it : then 19 lien.
\, IT, 31. touching the guard of (he sea, not
bound unto it.
4 Hen. 4, 90 m. Tonnage ntirl Poundage not
be taken without commou cunsent. A pro-
station of the commous duth not biodthc
king, and concluded nitl) uuUwn tmpai er«ur-
,, Google
963] STATE TRIALS, 13 CSAsmL lti3T.~'nic King offmu John Htaipdn,aq.[%i
the wbole record, (he cau sc appoirnb Tor (be
tinf,iliHt4Aug. llCBr.beiiiglheilaieofllu
writ, the kini; could bj his »rit chiree ihr
county of Buds for tlie finding of > ihip ef
war? Tbii, on liis mRJett^'s pnrt, Inth bctii
staled in (hese records, «bether Ihe ting find-
ing in hisjudyneiit the refety and ptejerratioo
of ihe kingdom and people necessarjlj and ud-
Idably to require this aid commacded bj
ttrit, migtit not command such an aid by
Rril. for aaviiig and prrscrvic^ of l\»
and people ; whetein I confeis tbert
IS nut one word but hath its *ei^.
As to this questiou, [but made, 1 sbijl tale
three exceptions, which are things taken in 10.
be eranted, irhich I ihidl not argue if I can
avoid them. That at leaat, in the V\n[(i jndg-
menl, the safel; and preWTvabaa of UicViii(-
dem wns en4Hiigered 4 Aug. that is, that (he
kingdom wM in dnngf r to be lost. If it be lo
that the kingdom wos in such danger, anil thai
the danger was ao instant and uDsioidablr,
that it necruarilj required this aid bj thit
writ ; tliat it, it required a preMut chaise of
ihipping preienilv, i Aug. 11 Car, to be fortb-
wiUi commanded, and thnt occBunn couhl not
expect a parliameiilarj consideration and sup-
e'i these be things wnerein ne differ. AnB,
tly, A)r the truth uf it, (he certiGcute km
suAicient in a legal way.
Mj lords, to find ou' whether the record dotk
warrant ttjese three thing* of great iinpnrtaft«.
First, T shall seek (or them in the Hnt 4 A<^
and next in (he Mittimus; there is no coW
elsewhere to look for ihem. To open the ■tit
rightly will clear theH diflerences, as 1 liumblj
conceive, niihout any great argumeal. Aad
first, for (he writ dated 4 Aug- 11 Car. lihiU
read (be words, wherein the danger of the
kingdom is cxpret^d, ami tlien e):pUiii whit
words give that !en*e that is tikenouioribcn-
' Quia liatuni eat nobis inlellig' quod pr>-
' done* quiduni pirati et tuaris passalorrs lani
' nominis Chri'iinni hostes MariuraetBiii (jusm ,
' alij congregaii, naves ei bona ei mffcimoni;!,
' non suluKi suhditontm nost' rerum cliaiu sub-
' ditor* Biuicoi' noit' in mari quod per leateiu
' Anglicanam ab olim defendi cutiiuevit uefarie
' diripientrs, et spalianles : ac ad libiuini soun
' deportavere hotninesq; in eisd" in cnpt"italnii
' miwrrimam maocipniitei. Cumq; ipsos con-
' spicimus navi^ indies prsparailies no merca-
■ tores nost' ulterius molestaod' et ad r^'gra-
' vaod' nisi citing remedium appooalur, eonifl>q;
Tba Firtt Day's AaccnavT of llr. HOL-
BOENE, on tbe Bebalf of Mr. tU«ii>-
DBS, faefcre the Judge* in the Eicbe-
^'^ ' 'a tbe great Cue of Shif-
May it plense ynar lordships ; In obedience
to your lordships comni.-itids, 1 am ready, ibough
not as I desire, nur as ihi- cnuse deseneth, to
i^iguc it ; it being impossible t'ur one in su short
a time to be btted to make a rtply ^I the life
()f the CHUse of an argument, so lo^sg, so learn-
«d, and s>i fuit of recurds, wliercin neither la-
bour nor learning <taa wanting. I may say uf
Ilim, M one sdd once, ' etiam hac detensa
t slmll now rather shew j«ur lordships what
I should do, ihan wimt I ihalt for the present.
I shall proceed well, hiiplng the subject will
excuje, and yrjiir lordships greatn care supply,
my itefects, which hare been without any de-
fiiult.
My lords, the case upnn the records stands
ihua : In May last there issued out of ihe ^n-
cbeouer a Writ of Soi' Fac' to the sheriff of
Bucks, IB warn my client to sheiv cauie, why
he sliould not pay 30(. nueued upon him by
.the late sheriff of that county, for the finding of
»ship of war metiiioned in the writ, 4 Aug. 11
Car. sent into that Inland roontry, and the 30i.
certified into the Chancery td be unpaid, and
•eiit o»er into the Exchequer by Slittiroua, to
bf levied there. Mr, Hampdenbath appeared,
■od demanded oyer of tbe writ 4 Aug. of tl^e
Miitimus, &c. and upon the reading of them
nil, hath demurred in law . generally ; and the
kilig's cnnusel hava joined in di murrer ; and I
bumhly conceiie judgment ought to be given
ibr my client.
My lords, I shall proceed tn the siaiiue of
tfce questions, whidi are three ! the first, whidi
is a chief one, is this ; whether, opmi the A'hole
record, (he case do appenr for the king; tbot 4
Aug. 1 1 Car. being tlie day of the date of the
lerit, the kitig ciuld charge the county of Bucks
U> find a ship at their costs and charges f By
way of adniiitance,iF he could, yet whether the
king can give power to the sheriff to assess the
county Bi In t^is case i By a further admit-
ce, admit that the king have power to chargt
tUKe, admit that the kina have power to charge
an aiaet*, whether he canlevy the mnnev unpaid
by this course of Ceriinrari and Mittimus, as
he might do if it were his own proper debt?
Of these three questions, whereof (he two last
Kraain untouched, and not argued by us, I
chiefly intend to insist.
For tiie 5rst question, though atgued fulk,
jet I doubt, ts yet, whetlier it rtandeth righily
(tated; not but chat I conceive Mr. .Solicitor
hnd Et)pd colour to state it, as he made it, partly
by the record, yet somewhat out of our admit-
.tance, yet by admiuance only, and so express-
ed. Again, another reason whicii I conceive,
there was r necessity ou ttie king's part, so to
qiake it«s Mr. Solicitor stated it, or else to
wave tbe debate. .
The fint question is, whether or no, i
I appoi.
t.vii»ui >ii.iiu> uuociur. F.t coD»ideW>s
etiiun peticolisqujemidique hissuerrin'teav-
poribus imnuneni, ita quod nobis et tulidilj) -
nostris defciiHonfm maris et res' omni fe>ii-
natione quiim poteriniua accelerare copvtnit,
uos volentes dcftusiore reg' ipltione mnia
subditor" noit' salva ronductioin
" Here a;
II that c
after i«
the stating of the question.
My lor3s, in the opening nf this ""*» " A
true, thrre was mention of loss by merchanB rf
sumc particular lueuibers ofthe kingdom. Ana
SM] STATE TRIALS, 13 CMAmns I. I(H7.— & the Caie i^Si^Mm-y. [966
g:ies on, and ssicb, ' Quia talit i^' peridito-
' bniur,' BDd thnt it all tha cluuve in the record
llial gires colour to the case so 10 be made.
And iQ tlie whole record ne haVe demurred.'^-
Here ic hath been uid, we liava coiileued dL
bj tlie demurrer ; nod if that hold not, the
ttiu losi b; ' [irvdones pirati qaam Mabame-
' tuni ec at' ;* and thnugh ' alii,' ret pimte still
i[ saith ' ipsi,' btill those
cliontH, and, ' ad gravandum rcg^,' as pirates
MiH hitherto. I conceive there a not a word
of 'danger fram anj empire, but from pitates ;
not a word of danger to the kingdom, but to
merchants ; Imwever, al! this is ifuod inlellexi-
MHi. The licon) goes on thus, ' Cunsideratis
* etiara periculis, &c. inimineii'.' This part, as
I cAnceire, is not to positive, tbe dangcn are
but ■ cnnsideratis,' nnr thednngcr to the hodj
flf the kingdom. No word of that; or if to
tbe kingdom, yet nothing in point of ufelT
ool]', but hi puiut of molestation : none of au
tbe^ appears. And besides, the clause i» too
cencrHt, not expretnng anj particular danfier,
nam vlioin or ban. Huwertr, be the danger
to the one or to the other, be it to tbe kingdom
or CO the merchants, be it for troubla or for
tofeiy, hitherto I may say there ii no mention
of auj such instant danger, m necetsarlly did
require this injtnnt oommand io the writ, not
. GO much as in the; ting's judgment. For ought
that ■pj)eais, a parliament, even in the king's
Judgmeuc, might hnre been called, and conside-
ration laki-n for li defence. Here be nil the
I which tbe I
upon
anse; aitd hitherto nothing material
a dat^ to ihe safety of the kingdom, and to
instant, that a inpply nunc anl nunquaia must
Altbou|h tbe premises, I conceive, are Mly
ctmsiderahle, vet the conclusion will be hut this,
tcelerart ; hut it is Gtling to liasEen :
but o , „
* accelerare pro defeosione reg*.' If that were
ffiaUrial, itcanaot be construed, but with rela-
tioit to the premises on which it is built. And
whether in tear of trouble, or danger, or loss,
mm cotulat ; and though it be ' cum omni fes-
' tinatione,' ;et,it is 'qua poterimus;' and
that is ' posaimus quod jure pocerimug ;' that
is, with aJl iha hsite that lij law you can make :
which way this h, yoor lordsliips hare hi;iird.
Now, my lords, it appears on the record, that
there nas no tucb instant necessity, but that a
parliament tnight have been lime enough ; for
that it was observed between the (etl of the
Rrit and the rendezvous, there were 900 and
odd days, whereas a parliiunent reqniretli but
. 40 ; in tbe reraaittder of ib<M 300 days, the
parliu^ent iniiht have considered of the means
of deAmce. But I leave it to your lordships to
judge, aotwiihtlanding those eipences of time
'cuiuifllgly reckoned up to your lordsliipa by
Ht, Sohdtor; and though it be true, that
diinga are oftentimet lone m deliberation, yet
'nature tells us they can he sooner. If there be
« necctiity, we kUow that will force.
I have but opened this writ 4 Ai||E. X am
kow come to the Mittimus : The only doubt
wbtcb i coticeive m ihs Mittimus it, tliat whore
tbe cue stands but thus, in this writ is recited
'A* lean of the «tit 4 Aug. UtI then the writ
hath certified so under the great setd :
and on these depends the weight of both these
processes.
To ihia I have many answers, but I shall se~
lect a few from many others, on wliicb I thdl
rely./ My Gnt answer is this; here the words
are, that ' Snlus reg* periclicabatuT.' TheM
words ia shew seem to be positive, but in su^
stance but relative ; and are railier but a com-
ment on tbe writ, or an abttruct in point Of
tlKise dangers mentioDed in tlie writ, for tlM
clause was brought in on the return of the writ ;
and if we have the itrit itielf, Hi« conunOK
thereupon^ or further explanatioa thereof, ia
not matenal. My second answer is ; I doubt,
I say no more, if the king put particular rea-
sons into tlie writ 4 Aug. whether the law, I
speak of legal course, doth permit any after
writ to put in farther clause) of the same natufe
with the fbrlner, lo tbe same end. If the case
he thus, then our demurrer will be no confet-
sion of aoy such danger.
In ibe next t>lace, admit t}ie words in the
writ had been pasitive, and materially express-
ed ; yet, accoHing to our rules of law, it cad-
not make use uf that sense thiy are now ap-
plied unto : For the 1>est, tbe word ' Balus,' bei-
log only proper to a physical and natural body,
is applied liere to a body politic. Tt is but a
metaphor, which the law will not endure in
writs, for i[ woald bring in great miscbiel). In
writ* and in pleadings, metaplkora are danger-
ous ! We know not how in take issne upon it,
andthereforoit is not regulnrlyatlowedj but I
leave it to your lordships judgments.
Tliers are no words af the danger of the loja
of the kingdom, that is, such instant danger;
for apply the words to a nalund body, as lalut
J. 8. is in danger, it doth not presently imply,
thht he is in such instant danger of death. A
doctor will say a patieiit bath not his health, yet
no danger of death, ii it the common speech;
the inme sense it must have in a body politic.
If the words were good, and did imply a dan-
ger, yet not such a danger lu may ntuard the .
lost of the kingdom ; for the words are only
' Salas te^ periclitabaliir,' and the thing may
be never m action, which iweniy yean hence
may lose the kinedom. A pian may tay, that
the safety of Ihe kingdom it in danger. At tbe
best, the words will not mjike ibe case as it is
Mr. Solicitor, nut of his great aare, searching
into every hole where he thought we might peep
out, doubling our demurrer would not ba a
confession sufficient, be tnlies io anotbrr help,
which it this, that if this be to declared by tlie
Ling's opinion, and under tlie great seal, that
.this alone had been suflicienl. For tfiii there
bath been uiged, the legal weight pf the king's
thnt tbere h
S67] ^ATE TRIALS, IS CbahlesI. 1637.— 7^e Kins agmAuJolmHampileit,aq. [9fi&
afinnatioD, andoFa cereiflcHte under the great
teal ; mid liocb be concluded in this cute.
Mj Lords, before I answer lo this matter, I
proTes), tor my client and myself, tliat ue malie
no duubl of tlic kind's Hord, and believe there
wa* danijer, thouglinQt so apparent Co lu ; but
only lotli to allow it as sufiicieat in ■ legal pro-
' ceeding, lesCwhntliis loajesiy, in bis own north
deservts, b^ after princes mif(ht turn Co a dis-
advBUtai^e. — Tbnt ^liicb we urge ta, Low far-
ill form o( law this luajr be allowed, ne shall
■TEue, and that brieily, far the case needeth no
help. For this point I cake it for lenve, under
your lordships favour, that inleeal prticeediiigs,
and regularly, bis miijesiy's opinion, end certi-
ficate in thinei of face, is not biudinu. Yea,
buC they say, it is matters of state and govern-
meDC. For tbaC, to ask the nueslion, nbether
or no raising forces thua is lelt to his majesty,
that scandii and liills on the main cause.
My Lords, I do agree, in dii-ers cases tlie
lung's Btfirtnaiive sliallbe conclusive in matters
of fact, chat is, when ic n not so triable else-
where; BH inawritDeIUgeinconiu[lo,tostay
proceedings, when the 1>ing eeniUcs matter of
fact, the writ muse be obejied, but then, withal,
the matter u triable elsewhere. But these
cates ivill not rnalcli ourt. As for that great
c«se 20 Ed. 1, concerning ihe lords mnrclicrs,
thnt tlie king was ' Recorduiu su perl ati rum,'
to say no more, it is but on alleg;ilian uf the
king's caonsel.
My Lords, die reasons whereon I shall most
rely, to avoid the sense of the writ, > Salun rec'
' periclicabalur,' is thus. That though i( doth
now appear by die Mitiimu9,-4liat 4 Aug. the
kipgdom «as in danger of being lost, yet ic
unt safficieiic in law, nor can our demurrer hi
us ; because it must have so appeared in the
writ, 4 Aug. itself; for the writ and declaration
in law inu5t ever c.intain precisely to much of
matter as is necessarily true Co warraat t'
^aiaoiJ.. '
In thin to see the mischief, if a danger ni
declared makes the case, how shall the subji
know by the writ, 4, Aug. whether to obey
or no^ The Ian binds nnc a man to divine:
And if this subscqnenc declaration shall mend
the cnse, then die lubjecC slr.ill he a
doer, er^or/e/ocii, which is against che
of our bonkg. I tbatl remember Che cases put
\>y Mr. St. John Co another purpose. A cuui-
' mission seat fordi uidiniit e&use etpressed, that
commission is not good; and ic Is not denied
by Mr. Solicitor, chat a cauK must be
make It good In lavr. And if your lordshipsbe
pleased to lo<J1: on llte preceaeuln. as I know
you will, which the king's side shall bring unto
Jou, your lordships will find iha danger turned
■Old ilie first writ to fie lost.- Nay., ia ilie
«rrit uf thisj;eaTlamMldit isso, out oftiieir
opinion, fearing [he writ i Aag. was not so good
a* (hey would Ijc'e It. The; put it into ibi
Mittimus, which they knew could iiot do good
buC tli^ did it ufily to cavil.
But lasCly, admit the klni had said tlie king-
4aaL wu in mch iustaac dimmer of loss, and
as an instant neceasitv o
mand this way, and that thi> could not have ex-
pected considerstlaa in parliuiuent ; yet if th*
contrary appears in the record, then neither
waa die demurrer a confession, nor the certifi-
cate conclusive. — I could staod on man; other
things, as tliat ihe danger should be more pat-
dculiir, for so are all (he old precedents. To
sa;, ' saius rcgni' is In danger, i« too general;
as in n protection, che; must alledge, id what
Elace the party protected is employed. Sndlj,
n Ihe Mittimus il should not be that • Salua
' reg' periclitobatur,' but how ' Salus reg' peri-
' chtabnCur,' I believe it is meant so; but ws
must now look Co rules of law. True it might
have been in danger before, but noc tunc; as
in die case of indictment upon the scatute of ft
Hen, 6, for an entry upon Whitesker, 'eiistMM
' teoemeut.' J. S. che laws will not take nolice
of the time, without saying, ' tunc eiisteDs,' u
die time of die entry,
M; lords, in the conclusion upon this dis-
course, it appears, I bav« so spared tite case,
that in the writ, dated 4 ^ug. IJiere appears no
danger of the kingdom being then lost; and
that in the MicUniua there are jio express words
of danger to che kingdom instant or uqaroida-
ble. If it were go, it comethuoi timeenousb;
for it should have been In the writ d^ted 4 Aug.
And if there had been such expressing of socb
instant danger in the writ 4 Aug. and in ibe
Mittimus, yet not maCerial, if otherwise on r^
cord. And lusdy, this cerciticate doth not
conclude us.
TliuB then to shew what die case is, aod what
it is not, I have put out of ihe co aside ration of
the case, all considerations of such danger la
ibfi kingdom, as are anavoidable. — I have left
iiathing iu the case but consideration of pro-
tecting merchants against pirates, but for onli-
nnry defence of the sea. Jf il)e case doth fall
thus, I humbl; conceive, t)-.ac m this place, I
inighr, without further argument, with sonw
confidence, venture my clieijc'i ease upon your
lordshlp'sjudgments, notwiilisCanding any thing
objected on the king's part. '
Then, by your lordshMi's command I shall
proceed : having laid aside ihe MittiitiuB atid
' Salus reitni periclitabatur.'aod caklug tbecose
lonly on the nric 4 Aug. which, as I taks it, is
nothing of danger Cu the kingdom, but for pro-
tecting merchants, and for common drfeacc
The case stands thus : That though there be no
actual invasion, no known or declared e(ic«i; ;
yet diekinffout ofhisjudgiiieot,4 Aog. 11 Car,
appreheudeth and foreseech danger to th« kin^
dom in poiuC co be tosC : and ChaC the danger i*
so insCant and uiiavoidable, cbat it requireth
this aid. Whether the kiog out of patliameat
b; his royal power can compacd dus supply i
Iliave endeavotired not to mJstakaMr. Milt-
citor; it were an injur; to resuite Ikim so ilL
In my argument I shall desire leave to bold Us
course, because the two main questions aiv
both of one nature, though different in dc(te«.
Our question Is^ in case of comiuon good ogainat
pirate*. Upon tho nbole^'m; end i* to tbot.
K9] . STATE TKIALS, 1 3 Cbahlbi L li$7r~n ike Out t^Sh^IUhn^.
[970
th*t L J the fuQdamental policy uf Englanil, tha
king caniioe out of pariiuDCiic charge the 9ub-
jeci, uo not (iti cunuuon good, aiileis in special
CUKS, and at*a diQerent QHtuse, or upon diH'c-
reot reason ; nor for n necessary drfeDce,
though in tbe king'ijudgmeiit tlie danger be ia-
UjmC nnd unavoidable.
My lords. In the debate of these two que»-
tioui, I h:ive teamed of Mr. Solicitor not to
bay aU that I oouid, but lo much as u> oecet-
Mry, and ai be hath chathed out the iray. I
■h^l inquire of this power by arguments upon
practice constant and alloned in tiuie of good
gorerniuent, nhen the liberty of the subject
iras not trampled upon ; and shew it by acts of
parliament, reason, and autborities in both.
My Lor(Ji, I em now come close to the ugu-
menis on the main : before I begin, give ine
leava to profess that I am in a dilemma. The
ijuesiioD will be, «hat the king i^n do in thes^
cases, by his royal power! it much concerns
him. And 1 have lenrned out of a speech of
his late majef ty, what it is to debate such ques-
tions. Not to argue it were eu disobey tbe a»-
signment of tbe court, and to desert niy client
and hit cause. For my part, as your lordships
■ee I have laboured to decline the main ques-
tion, I should be glad it m^hc so sleep. — I shall
not uSer ii, if happily the case fiills off in the
ruinin^of tbe writ, nnd not of the kind's power.
doubt whetlier the way of srgumeot shall do
tbe crown a dis-*ervice. — Out of aiy duty to his
mnji:ity,and service to your lordsliips, I humbly
offer, uhether your lordships may not think it
fitting lo detenoine the question upon tbe fram-
ing of the case, befbra it be further argued ; and
bere I shall rest, or upon your command am
ready to go on.
niere tlie Lord Chief Juttice FiacA «aid,
' Wsdonottlse to judge of CaM* by fractions.']
My Lords, since it is your command I shall
obey, and go on, notwilbstandine the bicorne
argumtntum, which on each side ibreHteueih, I
hope his majesty will excnso us, for itrguiuE of
that which cannot else be deienvined. And as
he hath given way to an argument, I hope his
goodness will elcuw us, while we do our duty
for our client. And if I err in my materials, or
in the way of my arguing, it ii from tbe defect
of my wiMloa), I cHODOt be wiser than God bath
made me, and not out of any disflffectian to the
service. — My Lords, 1 hope neither his majesty
lior yoor lordships will think it a point of a
' Itigher nature ; yet thus tar I assijre ynur lord-
•hips, that if any matter or consideration of
itate come in my nay, I shall tread as liehtly
as I can ; yet I must crave liberty to pick out
•ocRe U) Veler to yoar lordship't consideralioD,
luid ihaH forbear those things that are nnfii,
IHere the L/ird Chief Justice Fmtk said,
' ^leep you within the bounds of duty, as befits
* one alyiKii profession at the Bar at Westmia-
' Mer, and yoa !>baU have no tnlerruptbn.'}
Mr Lorda, 1 shall be very wary and tender.
] ibajl now open tbe diviiioq rdo parU of njy
My nentive part is Una, That the king can-
)t out of parliament cfaai^ the subject, not
nnly for tbe guard of. the sea against pirates;
but niso nut for tbe ordinary defence of the
kingdom, though the kfiig judge tiie kingdom
unavoidably in danger to be lost. And in this
I must take in tbe defence; aa irell tbe d^ence
it land as sea.
TAj positive part is this, The king regnlar^y
s to be at tbe chot^ for guarding the sea
against pirates; and fur the defence of land and
sea against enemies, so for as he is able : and
that the king hath provision for both, especially
'* r the sea service-
In the prosecution of ifaeMi two general pari*,
I shall not only propose my own considerations,
but join (hem with Mr. St. John's as I can ftir'
ther infer them, or justify tlieni against Mr. So-
licitor's denial or evasion. Aud this course
will necessarily bring in many of bis arguments,
which I wonld be glad to spare, if tlie cause
would bear it, becaose your lordships should
not ihink that I do nolbiog but repeat. ]n this
way I shall humbly endeavour to clear each
part, bv giving a reply before I descend to other
uarticulars. And where I conceive a new ob-
jection, which will not fall witliin any former
answer, I will raise it, andcndeavour to lay it.
Into these general questions will fail many
others of great consetiucace.
First, such as not being the main, I will not
draw upon particular debates. Where thera
is any thing concerning state or revtrence, I
hope to admit such, and save my client'* cause.
Having thus unfolded my fonn of argument, I
descend to my negative, that tbe king iu none
of these casus, without parliament, can chaise
the subject. I will prove it from reason, which
ia tbe matter of all autborities, as Mr. Solicitor
said. ' And Irom reason drawn from the funda-
mental poUcy of the frame of this Engtish go-
Terumeat, in the noceawry attendance of 5ie
public advice in porliamenc upon the royal
power. And secoodly, fcam the absolute pro*
perty the subject hath in bis lands and goods.
From these two thinga I shall draw my reason..
For the political advice in parliameot, I shall
humbly decline all school-disputes. The spider
may make poison out of that which the bee
I omit tbe consideration
take my rise from the jadgment of
king James 1610, in his speech in parliameat;
wherein his majesty agrees, that the king in
concerto, can do no more than the timdaaienial
laws of the kingdom alloweth : and I asuwc
myself his majesty deiiteth not more.
Before I enter into the argument further,
Whether the law hath intrusted the king out
of parliament in either of the cases put : I
here profess for my client and myself, that
while we speak of political advice, and how ht
a governor sabject to error and will may use %
regal power, we do always with thankfulness
to God acknowledge our present bappineas tQ
be blessed with so just a prince; and we fetch
it from our hearts. Aod wef9 his maJeitT fo
I shalf U
971] STA'K TRIALS, isCfiutusI. l6S1.—neKbigagaiiutiohiHmpdtn,itq.[m
imniDrtiil ta lie druFrei, inil snre that hit buc-
eenon mny be heiri to liis virtues 119 well ii» to
hii crowDs, we ihould wish tbc royal pnoer
■nihbt be free from poliiicsl advice, and unli-
[Uere the Cluef-Jutiice Fine* laid, 'Tlih
' belongs not to Uic Bar to talk of future govern*
' ' meDt ; it i) not agreeable to dutjr; to b»e
* juu bMndj Mhat ii tlw hopes uf succeeding
■ princes, when tbe king hntli cl.ildreu ol hu
'own tliatue like tosucceed him io Ills crowiu
i and virtuea,']
Mj lords, fur that whereof I sptke ; I speak
u loiilciii); lar off maay ngcs, Eve hundred jears
hence.— -Mj Inrdi, becni;^ I might run inro
fiiribererror, if I ahnuld nni take jnur advice,
I ^iill Klip over iTiurli; and the sum of all is.
First, All argument from tlie policy of Englnnd,
in tlte nccesMry Hitrnditnce in tbe parlicnlar
idvivc in pnriiament. Stcondly, It will he
from the ahsiilate prnp»rtir ibat ihe sitbject
htth in lies goddb, tnking that fur granted,
•gninkt the houk of Concl written in the time
of king James, whi> nnder the woid Pfirliauient,
■peaking «rthe king's power out of pRrlinmeni,
Mith, tlie power in pariiBmentg is hut ■ pious
policy. But ihig was complained of, and bj
proclmnniinn the honk was dented. Yonr lont
ships hImi knnw of another book that was sen-
tenced upon the same occasion.. The use that
I make of it is ting; if the fi^mc of English
govemintnt stnnds in the rnjal power, and the
siibject linth property in his goods; tlien tlie
adeqtinte reason of both from these is, that
therefore the king can without parliament
chnrfe the subject in his estate, though in prC'
tence for common good, no mure than a prince
500 years bence,ir subject to error or will, maj
if be will, upon any occasion or no occasion, at
what rale he i*ill, charge the subject to the
height. As to the atifica political, if the king
can do this alone, whnt is become of the policy
for which ibe political advict was made attend-
ant to the reRol power f ' Ne reipublica, &c.'
Secondly, If Ebe subject tmth a property in
bis good), how is it in the power of any one
alone to charge that I This reason I must not
lettve, kr on this the cnse stands or falls;
though thei« be many bnobs and cases, yet all
are from reason, but especially when these
Kand together.' The reas.jn seems so strong,
that it ef er holds in ordinarj power. It balds
' pro bono pablico et pro de^uiionE',' lie cannot
make a cnarge in ordinaVy thiugt; and Mr.
Solicitor did not deny the force of this objec-
tion. The answer stands thus : Admit it be
agreed, that by the policv of the kingdom the
' king cannot dia^ the snbject, yet the king
Aiayy without advice in parliament, in cases
fattraordinary ; where in hit Judentent, the
lafet; of the kingdom is in instant danger, and
Aat'the business will not admit of the calling
«f a parliament. He fortified this part oF bis
4tfatinetion, with strong reason ; for ia such
eases propertj mast yield, for ' salus popali
■suprciMin; « necesutw^ lex icmporii, ct
' quod cogit de^dit,' all are tr
some home caaes werv put; as fi?r bmldini of
bulwarks upon auotliu moo's land, and bnniiii
of com in 1588. And then ft -- '
not say, that although the power b
king, be will inlarge his power, fbrtbe kis)
This prima /dcie bath a fiiir ifaew, sod my
go far ; yet I hope to gire it a full reply, aj
this dhlinction tbe whole frame of pobiiol
adtice,'}), under favour, destroyed. 1 ^liH
shew the contrary bv reason and eiptriescs.
For the distinction between danger, onilnitry
and ex trsordinary, where ibe kingdolhthinka
danger and a pnrliament caimot be cdlnti
that distinction, I sny, must needs destroy die
policy in the whole ; fur as I conceive, ttie ewt
of that policy w«s but this; for elte, vbst
could it he f As it will ever be in tbe wiU sal!
dfsire of a good prince to do all good for de
subject, to wliom this advice by parlianieiit cui
do no hnrt ; so what case soever shouU bapfO
many nges after for that posterity will Ink
upon it. It should never be in the power ofu^
eovemor to become sut^ect to wil! or enor. if
he would, so do t^ hurt tbe kingdom. Tnt
policv was not made so much for a good tisf,
Imt looking ^hat might happen many m»
ifter.
If jou allow such a prince power eitiw-
dinarjf, and make him jndge of the occasn;
then in substance, thongh provision be tude,
yet after his declomtiuo vce mutt mske funiw
pruvision. Yet inoy some aaj, here iisf"
and estCi because he may, so he will. TrM,il '
is unmannerly to say so of anv ordinaryinsiii
but under favour, it is allowable to ny he mi^,
if be will: then if we le»e faini ibat bbtfR,
in sncli cases be hath no rcstnunt,,bat kit *ilL
But it is said, tlie law will not presume aiiT
such thing. The law doth not pmume a vilL
but the law luoks on things that may be, u "u
03 on things that wUl be. True, the lawbooki
say, the king con do no wrong ; which pmi^
that it is possible for a governor in his iDcbnir
tion to indine to wrong, and therefore tin l»»
huth taken n care tliat be should do none;
Ibr be cannot make o disseisin nor discooling-
ancej There ma; be an inclination to enliy;
but the law, because be should do no n-ranf,
hath made this act void: which i» not n da-
ability in the king, but a pren^tive, to mste
him come the nurer to tbe divinity in the st-
tribute.
1 shall oHer the judgmeDts of Mveralagaui
Bnglaod ; they ever thought il
ling, when thiey thought anj restraint CltiK
J allow any exception whatsoevar, ll|0iigk
cause for it, feat the party, that' v
be rtatraJned, shonW w j udge, and then go ouj
whenhewonld. Thomas of Beckett, b6"«l«
not swear to the laws of Hen. J, unlw at
might put in this eipreision, '-Salro bonoie
D«.' The king never meant to violate Uiy of
these; but if &it hadbeen «ft)rwBd,thecfaW
bad b«en jodges of that, thwefora ite]- ■»«
B73] STATETRIAIS, IdCKABiuI. 163T .—in the Out qf Sh^Money,
1 of two cliart^n, uid
rience of the opinion of tiofp themseUn
fhis case.
I shall proceed to the prnclice of our kiogs.
In all «cu of parlioiTKU, where they had ever
a deiire to dedan iha kmc limited or re-
«tr«ined, if t)wj did Hdinit ot anj' eiception,
diej would hare it ia wordp so punctuBl, tbat
UMj would not admit of any matter of evasion,
6)7 fear hereby bis nroceeding mi^t bf at
httwe. In the Ctani Charter of bms Juhn,
' NaUum scutaglum imponatur,' there wat a
daoMof eiceptiou; true, theranasa reason
to except bow all (not a* Ed. 1, would have
done) savbg the aid due and accustomed ; bat
(be ' fhire au chevalier, fire' and to wag Mag.
Char, though not in the roll, 9o cqrefut they
^ere Co have no wards that uive any such tight.
I come to the statute of 35 £a. I| n^inst
•id, saving the antieut aid due and accus-
tomed;, no doubt but in these word* there wai
DO inore saved than law must allow the king,
and the parliament did so mean ; yet whta
tbat same act came out, the suhjeci was not
satisfied, and tlierefore llie statute De Tallajiio
Dou Concedendo was made to take away the
after the
divers additions, there
'jure coronc' Your Inrdsbips will lind in his-
tory bow nil this was satisfied. And 39 Ed. 1,
•t a parliaineot held at Lincoln, the king
made a confirmation without a tnlvo, snd yet
none will deny the right of the croivn; tbe
lordf did intend to f reserve that. Tlius your
tordtliips see the opinirin of tills kingdom, rmm
time to time, b^w careful they ever were in all
their actSj to leave any way whereby that which
they did intend for their good mighi be avoided.
Now wliether in this case there ini^lit not be an
avoidance, I humbly leave it to yuur tot^shlps'
jud^inenta. But before I gp nir(h«r, it may
be tlemitndcd, how came in those savings intp
those acts, if tlie parliament did not like them,
aofl jf they were put in here wis a trusts 1
shall ^ve a double answer in the cai
a salvo, yet it will differ from our
king was not judge there, but your lordbhip*
ate judges between tbe king and bis people;
)>ft ill this case the king ii to be jndge of tbe
necessity.
But tt) give you the true answer, the excep-
tion never came in originally from both houses,
but from the lords themselves ; this inny seem
the diOerenre (if those times
muking acts of wuiiamcnti tliose
were »ot noiei of granting ml, or denying all,
but to answer some as to some pan, and some-
^m» ao eicepticin. And tbit being read, the
act drawn, up upon tlie whole by tbt king's
coiiticil ; and this mi<>chief was Mund out 5
Qen. 4, and from th.it titne all petitions were
wholly t(rjnt£d or denieil. So your lurdibips
IM how Itu^ E.iviiigg cama i|i, pot by the sub-
lets, but by the penning 'of ihe acts by tlie
ling's council. The last exiutiple is in late
tincf in the late parliafnent, in the Pettti»s
of BJt^ht n<
ttr«nge. It
l>7*
printed, which was long in debate
; against loans and billeltiag of
soldiers, j^fier the Petition had passed the
house, that, thiise thinp were ngaiiiFt tbe
law, there was a proposition in t!ie upper bouse
concerning the addition of a <:lause of saving.
Upon the Journals it appe^u^, that ihtre were
several conferences bclHeen both houses,
here the reasons ore mentioned, and do t^
pear. And in the several ci'nrereuces tbe com-
mons did not yield, bi^t the Petition passed ab-
solutely i and tbe reason was, because to put
in that Saving was to undo tbe Petition.
To conclude this, to shew the experience of
such an exceptioti, uae aiicntu, what it hath
nrau);ht in fumier ages, ns that uf Nonnaiidy,
though foreign ; yet to shew what auch a thing
did work there. It had the same privileges we
claim, and much of their law came in here witb
William the Conqueror. Leoris the l]tli taxed
them h^)i ; they made comphiinl, he, on tbe
coinplnint acknowledgeth it, and woald tax
them no more but on great occasions : what
followed, those historic plainly dtclare.
Having, ai I hope, taken offthe hulL nf that
distinction, I shall further shew how it doth not
stand with tlie practice uf the cummoo Uw. It
is a fimdaniental rule in our Uw, laiher a misi-
cliief tbnn an inconvenieiicy : Ibr when nothing
cun he SI) absobue in goverjiment, but that
there ma^ be one case or other wherein there if
no provision made, all the care men take il to
chuse the least. Now his rule is rather a mis-
chief tlian an inconveuience. Now miichief is
tliat which perhaps may fall out never ; or if it
doth fall out, yet seldom ; for if it were a
thing that miglit coninionty fiiL out, it were
an inconvenience. Ou this tundameutal rule,
the Uw concerning lands and liberties is
thus grounded. I'rue, ibeie might be a mis-
chief for want of this power io a ra!c extra-
ordinary ; hut the mischief peilieps never, r>r
seldom fuleih out. liut to allow the other,
would be an inronvenitnce daily. I desire
yonr lordships to cast your eye upon a teamed
writer, Cumines, fol. 101, 131, 160, 191, where
in the whole, patting them all together, ^cak-
ing of the danger that might come to a sinte
for want of power to raise supplies for reiiit-
anc^, giveth a commendation of the govern-
ment of England : true, lic dulb go lo far, laiih
he, " it is hard in a dclensive war, tliat any pre-
paration which must be great and long about,
can be so acted, but that nrioces mar take a
timely notice, to call tO|[rthei:, and adtise 1^
parliament. In the Low-toiuitiics, where tlicy
nave warr, tliough thiy hiite an excise for ordi-
nary, jet they do it not for.exliaordiuarj, witij-
out consent in parliniiwnt."
ft]y lords, I ^o on: ailmit an enemy read; jt
laud, no possibility for a parliament ; see how
the case will now stimd. I shall leave it to
your lordships cnasideration, whether thgre \e
an nliVaiutG necessity, is/rBct txtra, to q>a-
mand, and then to shew there is a comtnttnf,
and by what law ; aod by that Ipw that is moiB
strong than the positive iaiv of tjie kiogdMn;
975] STATETRIAIS, 13 CbarlesI. WST—neKiHgagtAulJotmHati^Miai.aq. [976
find dotli kotIe more in point of fear. I do piit
this by way of ndiaittnncp. In chat case Lhere
gopth out a nnt, a Mandamus Roganies;
it is in ' Articulis neceHicatis et quateiiu
maiidniiTiis rogantes,' not ' sub pzna forlsfact,'
of all you enu, hut for your own preserTalian,
and sitetj of tlie kingdom. These nrils hnve
gone forth in Euch times, when there hath
T danger, and that hnth Krred tlji
turn ; for that instinct of nature, that did make
some part of the fcingdom deiire government
for preservation, the same instinct of nature,
dolh infer to contribution for defence : nay,
that is a stronger law than ours; for that law
which ariscth frQiu one's own breast, as it dolh
command, so it doth compel : there lieed no
law without, «*en there ii a judge within.
Now in times of necessity, there is a law that
doth compel ; luy, there is a stronger pennltj'
than our lans can imagine ; for our taws can
make but a penaltj of all that you have ; but
bow 1 To the king. But when there is a dan-
ger from an enemy there is not only a dwigct of
losing all tliat one hath, but of losing lives and
lands, and all that we tiave ; and tJl into tlie
hands of the enemy.
Put the case an enemy was landed, to shew
what the power* ore by our laws in that cate
tiir defence; when tiiere is particular appear-
ance of instant and apparent dauber, in that
case, particulnr property muEit "yield much to
necessity. These cases our hooks wamiiit, as
building of bulwarks on another man's ground,
and burning coin. In 1688, there was an actual
danger, and then it was just to take corn or
grass, or any ihing to raise supplies. But
where do any of our books say, that upon fear
of danger, though in the king's case, a man can,
ffithout leave, make a bulwark in another man's
laud? I do not read. As jour lordships may
obscrc^ in this case, of apparent danger, the
power of the king; observe withal the power
uf the subject, and ontofwhat principle this
dolh ^row; whether out of a form of law, or
out of necessity. In these coses of instant dan-
ger, and actual invasion, it is not only in the
pow£r of ihc king, biit n subject may do as
much in divers cases. For if there be an
BCtaal war, the subject may, without any direc-
tion, do any act upon any man's land, and in-
vade nny property towards defence ; it is the
law of necessity that doth it. Nay, in that
case, the subject may prejudice the king him-
self in point of property. If an enemy be
landed, and A subject lake away the horses of
(he king, he may ju«ifj it iu any action; as in.
case of a castle or city, if ihey cnu justilj ther«
was a necessity, tbey may pull down the walls
ar blQ(t up the city. In this case lhor« is no
nanner of mischief if sul'jccts' floods be taken
by the kinZi or Hnv man; and ID that instant
necessity lie imployed to the public giod.
J-evis limor wilt not serve ; for then a man
eannot enter for fenr of furcf, but for /ich a
fJ, ariseth from an actunl and apparent
; then there can be no lr>u to the tab-.
Secondly, on tb< ot^I r »ide
I shall shew, what goods were token for public
— «, were taken by way of loan,aad totisfactioa
as made for them.
The Second Day's Arcvmekt of
Ur. HOLBORNE.
May it plense your lordships; 1*0 remember
the question whereupon I left off my aiKoment
the other day, whether the king of En^and
can charge the subjects for finding of ships at
their own costs, only upon the king's judnneat
of an instant danger. Fint, whether for de-
fence of merchants against pirates. Secondly,
for ordinary defence rif the sea : and, thirdly,
for defence ' eitraordinary against an enemy,
only out of the king's apprehension of an in-
stant danger, which cannot, in his judgment,
eipect a supply elsewhere.
Not to repeat, yet in a word or two, I shall
open mjr pruceedrng on this question; and tbe
rather, lor that I nnd soma misapprehension,
as if I had gmnted more than I meant, which
The sum of all was but this, that the king
could not cliarge the subject in any of these
cases. The reasons I uiged were but sfiortlj
thus: that the subjects of England hating au
absolute property hi ihrir goods and estates,
and the policyof parliamentary advice bemg to
prei'ent charge only, then on no occasion om
might err by Keakness, by evasion or will :
that therefore the king could not charge in anj
of these cases, witlniut parliament ; for that
so tie might charge, if he would, as on occasion
so 0(1 no occasion, as to 7l. so to IT/. That
if this held in ordinary charges, you may not
exert extraordinary occasions, though instant
in the king's opinion ; for so a king intending
to do nothing by his policy without pariiamen-
tary assistance, be mny,irhe would sOdecWe^
charge at pleasure, on no necessrur occasion,
or beyond all proportion. This dittinrtion I
endeavoured to take off, sbei%ing it did des-
troy the end of the policy.
That there was no necessity of snch a dis-
tinction here, I shewed. There was one thing
which I forj^ot, for destroying of the diitinctioii
from necessity, and leaving the king judge of
the necessity; that in judgment so to do it, a
all one as to leave it to him arbitniHly, if be
will, which is that only which was intended tt>
be prevented ; if he will, waspart oftheChargc,
if not the principal, in the lower house of par-
liament, against the Divine for his Sermon. I
hare seen the charge for holding the king had
a power in case of necessity, and leaving die
king judge, and so at liberty and pleasure if
hewill. This I do but touch here; Jbrlmust
niske use of it in the main; and under &Taur
shall make the case somewhat like.
For the other two matters,' that whei danger
is apparent, there n'ns no need of posidre laws,
I uiged it thus; no*idmittinganythhig, where-
in I desire not to^'V mistaken. Admit no wiit
of positive com' 'l id, yet the subject will be
then under a sU\>nger law, which as it doth
t dbtb compel, that it the Uw af
V77] STATETKIALS, 13 CHAtLal. 1651.— inihe Case (^Sk^-Manty. [979
neceuitf, which u tlie stron^eiL of all laws;
Willi wtucli (he judgmeRCcarrietti an eitecutinn,
Biid tliat [his law couiuiiuidetti under h greater
peualiy: fur Uioogb not under pain of fur-
feiuire to tli« king, wbich osti) thu causrnf for-
feiture, it liutdd lerrarrui ; <ic[ uudertite true
pain of tbrfciture of hII to the tneuiy, frogi
DOC b^ tuy positive law of ttie kiiigdooi, bat of
tbe geotral Jaw of necessity, whicli ii above ill
laws, &' tbe public ^ood private good doib
yield on all fu.iu. Ot tbcse too lost I have
but liiaelied bcre, to iitevf wlutt I mean; I
shall ipeak furllipr of tbem botb towiu-dg my
conclusion, in ojy ansiten to Air. Sulicllur's
objectJons.
I »hall now proceed to make good out of our
books of law, tbut the law duth n'lt leave it iu
iLe power of tliu king (io. respect of sut^ a
. king aspoMibly amy be) to Lj^ any chji^e upon
the subject but «uiy in »uch ciu£'^ where tlie
law katli made such provision, iliat if be would
be cauBot miscarry.
In tbis pluce, because it is taken for anuixim,
tliu lh« king can do no wroug; uiiil ilicrellire
tlie liiw doib repose clus tru^t in hiiii, of charg-
ing without any dan^r at all i 1 sliull thew,
tiiat tlie same law doth take aouce haw, and
in nbat cases (tic Mug can, ■» much m iu him
lieih, do oiiiist; and wbere tbe law is spagiig
to leave the Lipg any power to lay a charge on
(he subject, eveu in Bmall ihinei, when the
yuauluiM rests iu his judgment. It is
Um doth allow the klug to command paymtnt
of monies in some cases; vet where the juiib-
iuuoroocaaionissubject tuatrial; tl
of all this is, that liie law sees the
inclioe to mistake, ttiutigh as n king he can do
DO wrong.
Tlua may scan a nicety, hut under favour it
is clear. Thie restctli hi the distiuaion of ~
double capacity of a king, ns a natural mai
and 10 say in this rrspei;! he cannot err,
Itrai^e ! human n.iiure is nut capable of that
prerogative at the best; and tiiey are subject
to natural. in&cButies of the body, uiiil must
die: bveu so of the uodeni tan ding nod will.
^od so you see the law must take notice of
piaiible mistake in govemmEnt; uod this pos-
sibility iu another is no injury lo f good prince,
iiut sets off bis merits wittf a greater lustre.
TIJs is not only true for Unallfr things, but
«vea in tbe greatest, llow many nets of par- '
liamcat have we in print (of which your laid- i
jhips are judges) docluriiig tlic king's misCukn
40 the acts theuselveB by way iif coinplaiut,
and .providing remedy fur the tuture, yea, in
Ibcir own limes. To instance io one lon^
•ince, cast yonr eyes upon the beginning of tlie
acts of jHtfliament of Edward Sd's time, whece
we find a statute for tlic Koverumeut of tbe
.nuUtic capacity. he ihnll not. And therefore,
iut powible ertuu of iha uaiural body should
reded on the body poUtic, llie law liatb pio-
a writ of ad quad duyaniim. Na. Br. saith, th:ii
if any daaiuge be to the kiDij,'s suljectj, the
paleat is in law naught: As if the king grants
a fair, and there ij an ad good Jamntim broui;hi,
to enquire what fairs Here kept by it; if fi,und
a damage, tlie pnieiit is coid: The houke ero
full of such cas«s. It ii true, tlint in some
cases, the books do allow tlia king to lay a
chaise upon the suliject, yet not in every case
(ot public good ; but only in some tew, whirh
iodciid Itave been aniicnt, iind indttd of the
very essenct of necessary tra&c and intercnuric,
between one part and nuuther of I he kingdom ;
aa murage, tu keep tlie coninioditii^s sold tlio
safer; toll, for a fnir or market, towards (ho
maiutainin^ of it : pontage and paveajic, Tt
tho bettering of pns»iges. And in all thc:C
cases the king may t;[uiit a rum of iiiniicy to
be paid ; yet as i( is in (his roiniuuii g'loil,
somebody must have llic poutr to giant, und
that can be none but the kiug. So if the, king
should grant tin no occ;isiun, cr howsoevLT,
nliirli ia eiioii;:h fur me, n sum too |:rcai, greater
(h:in the bnielit ihc wibjcfi: sliall reccivL-, it is
void in laiv. If ihe iniject haih nut u quid
pro quo, llicn no char;^; 5 Keporl: und in
this cas« tliere is a jud<;e of tlie justness of the
proportion, besides (he king : 'And this is nhcn
B pnieiit conielli <o be questioned, if the loU
be laid tun high, iht ri tbe same patent is nonght.
Thus then yon see how far it is that tlie Inw
doth ngree, iha t the king thai! laychargcii upon
the subject, only out of c^nimon and ordinary
nece^siiy, there must be somebody to have
power. But tbeu tliue is a further remedy of
a misiake.
Here, before I leave thh, I will make a
double use lliereof First Iu oheiv, tlist if llie
law doth not permit the king any ahsoluls
power in [his trifle, shall the ki"£ do it iu so
great a matter where you sluill have no judge
but himself of tbe occasion and proportion ?—
I nett observe, wliere the law permits the king
to charge in any case arbitrarily, it is but where
this power doth arise by orij^inal contract, and
erecedent considi; ration and agroea^nt for
ind ; and ilieu not ^I'aCenui as a subject, but
fHaUnat M a tenant, only as ' ratioue tennrte,'
in jespect of the particular aipnury and drpfiid-
ance, nut in respect of tbe general signory of
tlie kingdom.
Uy lord', it is true, at the common law ihe
kii\g bad a power and bberty to charge, till be
was reslraiued by statute, which was aids ' pur
' faite lilt eiievalier, )iur file raarrier, pur ran-
' some,' and taxing of anlient boroughs : aod
these wd*, too, were in respact of particular sig-
nory, ' quatenus tenentcs.'
The urit (hing that I observe is, that the
policy of the kingdnm so Utile delights in these
mcertaintiM, thtuigh it ariseth uf contract and
Gonsidemtion, that in case of tiiesc aids, tlie
law would not allow rhnt inconvenience of
Leaving .tbeai to au arbitrary cUargp, but in
tome caK Ktlled a ptopoitiuo. It is inie, in
379] 'STATE TRIALS, 13 Charles I. 1637.— JTicKiagagimM John Hampden, aq. [«jO
certHiiity of thai, \i is lell at taiw. — Hiii I fur-
tlier oliserTCj by the common Tnw, obere die
char^ is iii respect of Ide tenency ; jet if the
clmrge comes often, ns (lie king pirjselli, there
the law did not leare it to the king'ijudpneiil;
ai in cscunge, which is a profit arising to tlie
king in reipecl of the *ii>iiory. Thou°h the law
allowed the said aids, ' pur I'aire litz chevalier,'
and ' pur file nitrrler,' became ihey could hap-
pen but once ; but e^cua^e that might happen
often, the law would mit allow that to be un-
certain; it moit be assesicrf in parliament, as
ia the charter of king John, which was always
held to be no more than the common law.
My lords, upon the whole, 1 desire your
lordships to congider how unwillfng (he law is
to leave the ting a liberty to charge, evfn in
the kiii);*s case, at commun law ; and how re-
iCtained by act of parliament, where the com-
mon law l>efore did give liberlj-. Next obserrc
(hat the law, in none of ihe said cMes, nor 1
belie»e in any other, dotli permit a power to
lay an immediate charge upon the subject, but
only in lading a charge (o be paid in respect of
the benefit which he haih received, which is fit
to pay, and none are compelled to recdve it
or pay it ; for if he will not nave the benefit, he
may refuse to pay it even in cnses between
king aud subject. In the case of toll, pontage
and paveage, it is not laid so on the subject,
lliBt he shall pay it wheibor be will or no; but
as there is a benetit by the pomnge, &c. which
cannot be maintDined witlioui charge, 'tl is
therefore just that those thit have the betiefit
should bear the charge. Lastly, I shall oSer,
(hat even in cases where Ihe king dulh lay a
charge guatenus rex, it ia not so leil unto blm,
either for the occasion or proporliun, as that if
he will lay never so much, he may ; for if it he
unressonable, the law doth male it void, as in
case of loll, if unreasonable.
My inference is this : if the law be thus care-
ful in small things, as penny matters, whether
or no the law will make no provision in the
main, but leave the subject to the absolute li-
berty of the king, lo chai^ the subject when
he will say the kingdom is in danger, and where
there is nu judge nt all ? I will conclude wi(h
' book-cases, in the point, that the law doth not
leave a power in the kiuji to charge, though it
be in the king's judgment^ pro bono fiublico ; as
in the case of granting an office. The king
CBoriot at this day r^uJarly create an ol^ce in
itself with a fee, but in law it is void; though
the office in itself bath a shew, nay, it may be
pro bono publico. P. 11 lien, *, 15, 16, and iu
14, agrantofanoftice of measurage with a fee
void; and that very thing, 13 Ilan. 4, was com-
fluined of in parliament, that ii wns against the
iw, because it was in charge of the people; to
which ihe king answers, let the laws andnatutei
be perfnrmed. In tlic Kail, amongst the Ad-
judipates, the reason ia expressed, ' quia sonat
> in prsejudicium populi.' 16 Hie. S, the king
granti to one a rale upon every barge that
pifMed thp bfiigfi, in cotisideration that the pa-
tentee had taken upoo bim the scounug of the
river, in tbui case the patent vras repealed. &>
in the case of rights to be kept for the benefit
of sea fn ring-men, this whs in charge of the peo-
ple. I'his patent was complained of, and your
lordships know the order upon it. I omit many
csifes, and conclude whh tnat of Fortescae da
Lrgibus Anglis, cap. 35, speaking of and com-
mending ibe policy of the government of Eng-
land, he prefers it before that of France ; and
shews (he good fruils and eflects of it ; and lays
down this for one. That the king cannot cliorge
without consent in parliament. And be was a
man allowed for extrauidinary judgment, who
bhcweth iltstritctions for a prince for future go-
vernmen(, being trns'ed more wiifa the giivrm-
ment of the prince than any other. I conclude
these cases with this observation. — This deny-
ing of power of laying chocje on the subject, is
nut only in (he case where the king would raise
benefit to himself, which n man may call ■ tal-
' labium vel auxiliuin ;' but in cases of charge
which lie on (he subject, though not for the
king's own benefit, though also it be in cases
pro boiio publico, as in the cases put before.
I aboil now come from the books, by which
I have shewed what is the common law, that
by these grounds the king cannot charge the
subject. I Khali now offer the consideration
of some things, which are acts of parliaiiien^
or have the force of acts of parliament.
I shall "begin with that of William 1, for •
Cooqueror I shall not call tiim, for that name
came in about Ed. 3, bis lime ; fijr there beine
an Edward befi>re, because (hey coald not tell
how to give him adistinction from tbeConfesaor,
they called him Edward 3, after the Conquest,
by direction of sir Roger Owen, the grait anti-
quary. That which I shall urge is, that which
he grantCfd anno ], of bis reign, that all free-
men should hold their lands ' ab omni injusta
eiactione sou tallagio,' nothing to be demand'
ed but [hat which was by tenure, ns in Eadme-
nis by Selden. Now whether or no this be an
act of parliament, I shall not dispace; yet in
those times when a ihing was granted between
the king and the subject, though it had not all
the forms lities that now it hath, yet it was bind-
ing : however, tbis is called the Couqueror'a
laws, and I take it for a law.
Then it reatethto eiamine the words, whe-
ther Lhe words will serve the purpose, to clear
tJie subject in point of sess. It is said, tbej
should be free ' ab oroni injuita exiictione ten
* tallagio, ita quod, &c.' By this all cfa>igea,
but such as were by tenure, are called esacH
tions. The rule is, ■ ubi lex non diatit^it nee
' iios debemus.' This is a grant, if not of right,
yet of grace, and must be taken la^ly, ■ fa-
' vores amplificandi.' The sutyec^ could not
have demanded of him, eipecially that of 40t.,
if it had not been the taw of tlieland before.
I shall humbly leave it, whether this be not
the law by which Edwaixl the Coofeisor laid
down the Danegelt; for the Danegelt was not
only against pirates and sea-robbers, (tbcy wcrv
iodetd pirates and streng V*e*) but aiw agatiifi
Ml] STTATE TRIALS, ISChahlesL lUM-'-mthe CateqfShghMoat}/.
[9S3
all other eDBioiM. Tbcie cnlltd ihe kiag o{\
Man, Arcliipimta, that isj^powerrulliiugnt sea; |
■Dd Uiat these pirates wrie ODl<r Mrange ene-
mies ; and it nae tu raise nieii, not ' obviare ecup-
' tiooi,' bat ' irniptioni,' not so mucJi to Lecp
ihetu nitbin tbi-ir own klDgdoui, as ^r keep
tliein from tailing on ihe Innd. Aud by tl'C
history of ibnse times wben this was raisra, it
was bjr reason of ibe Daue* luniling in Nor-
tbuinlierlaiid and Essex ; and bo upiin that ir-
ruption of the Danes, Danegclc was raised. It
is called hy Camdea, in his Brit' ' irraptlone
* hOEtJuci i' and Lambert, in his Saian laws :
but let it be ' irrupttune,' or * truptiune,' or
be it Daaegelt, to keep them from coining out,
vr hiiidiDg liere, both of (keiii nerp for the
public service. When this bad been so much
complained of in Edward the Coiiles^or's time,
it is clear he damned it. And Ingulpbus is ao
author without exception, and Tilburieniiis not
to be compared to hiin. In^ulphus was a great
courtier and favourite of William the Conquer-
* or's ; and to thinkitbat he had not a better
knowledge of what the Confessor did than Til-
burieasis, wlio wrote many score years niter, is
much. And it is strange tbiit In>'ulpliul,
trlio was to much bound to the Lonfessor,
•hould carry a law dowo to Edward, so much
to the prejudice of tjie Confessor if he had
not been sure of it. Tilburieniii was urged, as
if he spake, that it bad been paid to the Cun-
querar; he wrote in Henry 2's lime. And,
my lords, observe that he was uii officer in the
Exchequer, and for the rules of the eichequer
he teochelh them well i but for bitlory against
IiiKulpbhs 1 leave him.
If this were laid down by EdivarrI the Con-
fessor, then I conceive, tliis-law of William 1,
was but the law of Edwnrd the Confessor ; and
X there was no ground for bim to requite a law
to lay any cbiii^e hut what was beFare. Til-
burjeiiiis makes this good, for be himself saiih,
that tite Conqueror laid it down, and took it
up again. If it were laid down, I would know
by what law or particular direction it was laid
down, if not by ibis ; for iioihiog in all the laws
of the Coulessor can cause to lay it dowo hut
ihii ; and thus far be standeth with Ingulphus.
I shall further shew these aids and tuiHages
were meant here. It is a clear ground, that,
' exceptio format r^ulam in oon exccptis,' an
exception often iloth enlarge ibe meaning of
the word bevond the ordinary sense. As if I
do grant to J. S. all my trees, here my npple-
tFces pass not; butifl grant ah mv trees ex-
cept my pear-trees, there my apple-trees do
ipass, because this sheweth that muantnllmy
Iruit-trees. In tha word trees I apply it, tliat
here is a discharge of all taxes, except by te-
nure. Now I sliall sliew that tenures were Ibr
defifn.ce and service of tlie kingdoni in the pro-
per place, wben I sWI shew what provision
and neaiuihelaw bath nlloned the king tor
Aly last obsenation is itiis. This was not a
charter between the king and his tenaiils, but
betwixt the king Midkiiigdaio; autl so teina-
ihing must be laid down that was due to the
kin^. Tliere are two kinds of aids, one from'
teoaiits, iheother frr)m the commons; one was
by command from tlie king without any more,
tlie utl«r by act of parliament.
But here Mr. Solicitor faath taken that
grounded argument, of which I have lound »
contrary sense, that ii, ■ Sumus fratres conju-
' rati ad reg' defendeud',' wherefore these aids
not possibly meant here ; but this is contradic-
tory. By inference to overthrow a thing ex-
press is against the law, • The words are ex-
press, that there shall be do taillage; then by
an inference to siiy, that the de^ce of the
kingdom is not meant, is hard. True, all b;
their allegiance are hound to defend the kii^-
dom, all are to light for it. Acts of parliament
tells us, wliere and how we do it, and when ;
but tliiit ne must give aid, is another ibing.
It is one thing to supply with tbe b6dy, ano-
ther thing to give or pay money ; and it' there
be any invasion, ■ pro posse suu,' every man is
bound In defence ; but whether for every de-
fence of the kingdom we must give an aid, is
another thing. Acts of pni;lianient will be the
bcit expositors of things lo long since; foe as
custom and use will make a common law, so
likewise it will declare an entient act of parlia-
Now I shall come to that of king John.
' quod nullum scutagium vel auidium ponalur.'
TI.e credit of this statute I shall first clear. It
is not only in Matth. Paris verbatim, who wrote
in Hen. 3's time ; hnt tbe origioal was shewed
under seal the hist parliament by Mr. Selden,
and tiiese very words were read, ' nullum scu-
' tagium, &c.' And, my lords, though this h*
nowhere on the roll, yet that no ways lessens
thetiuthority of it. It is no put of the essence
of a stntnte to be found on record ; if all should
be burned hy mischance, what would becum e
of tbe laws ! Though llie rolls are all burnt, yet
tbe judges know what are acis, and what not,
thoush they huve nothing to make it good by,
but their own manuscripts or printed books, or
traditions. A man cannot plead against an
act of parliament, nul' iitl record; and that ia
tbe Judgment in the Case, in Sih Iteport,
Prince's Cose. The duchy of Cornwall stand*
supported by an act of parliament, not upon
record. That which 1 shall shew to make this
an act of parliament, appears outof thewords;
tliece are two things, Scutagium and Auxiliuni ;
and Scutngium riseth from (lie tenants, antt
Anxilium troiu ihe suiiject. To shew that
Auuliiim is laid down by- tliis, it appears, that
he could not assess scutage witlmui parliament.
I hope to shew tliat scuiiige ivas fur the de*
fence of ihc kingdom, and is such a provision,
that no king hath a better, and such an one tm
will raise in England above 40,000 men.— Ay,
but saiih Mr. Solicitor, not assessed hut by
porliament, that is, not meant to hiud tlie king,
but the subject ; tlie king can do no wrung.
Doth any man think iliat the commons did
come to the king to bind thamiclves, and Imts
the king at liberty t
L.,,,i,.«,.,Googlc
ft?3] 3TATETUIALS, UChailesI. lQ3t.— TTit King agauirtJoi>iiHa>Mpdtn,ag. t%4
I ome now to argur from the exception*,
■ Eicrrplio .format reKulnm in nnu Mccplis.'
This exce;jir<>n fhcws tlie laCittMle of ilie nonls
to be n dtKhurge of all niris, iliat there had not
lieeii caro hid oftJie pariicuiar nid, ' quatcnua
' D teucniihus;' timj v.'ere afiaiil, etcii those
were »«bI1'i«ci1 up. True, I do not conceive
tl>»( was a thing of nect^sitj ; but as tlie king
taaj Iiare it in if he irould, an the subject had
no reagon to deny it hiiD, for it naa but jiut, nnd
waj never meaiu lo he taken from him. Nay,
the lords theiiisolies bad reason to take care
[hennelres, ihal this ivus not discharged ; (or
in all ihrse cases ihe line hath no mote ihan a
cuiiiuiuu pecioii, liir he haih his aid ' pur file
' marrier,' luid ' pur faire ransom,' and tbiit
a|>pe;iretli, 31 VA. 1. A release from a lord
unto liii reliant ; so tliat there was reason that
the Liiig Quit brdi eliuuld haie care of this ; yet
th«y wtre ntrai'l those words would be so strong
agniiisE public aids, [hat they would take nwny
private aids.
I^tat reason that this An^^ilium must be said
public ; ioiik in all the kini>'i d«»rts, when they .
did desire aids, still their introduction is for the
defence rif tlie kingdom ; which is a cause of
caliine the parliament j which appeareth by
speeches tliere on record. Nothing can be in-
tended of these private aids for himself. I
bnvedone «ilh tliet-lmrterof king .Tohn.
I next come unt.) Mag. Char, g flen. 3. For
Miigna Ghana, 1 humbly conceive that ihii
charter, at the first, when it was granted, was
ao more than Tcibaliin llie charter of king John,
and ori-iiially had in it thii very clause of Nul-
lum bcutnuiHin : my reason for it is this — First,
upon all histories, that alter king John hnd
granted a charier, the pope would Imve dis-
chaived him of it, a* far as in him hv, but that
still the lords and commons made cliiim. He
. died, Ilcn. 3, Cometh in. A diflereiice nriseih
betvteen thekin^and the French. Then it ivu
proposed, that this charter should be eonfimieil
r, that at his ci
u he ?av
oath to cciiihrm the charter of king Jnhn. Then
ja the t>^li jear ot his reign, the lords demand-
ed it ; he was iinKilling,1>ecause it nss gotten
' ; But (he king said, we ate sworn
\n6 therefore must confirm it. And
in M;ilt. Paris it is said expressly, thatthelords
did call lor the charter of king John, and there
it was rrad and coiilinned verbutim. And
Malt. Paris lived in the king's court, and was
adeo ^amiliaris, [hat it is said, be eat with bim
at his table ; and at that lime he wrote this
book, and sure he durst not have wri[ten i[,
liad it not been true ; hut we find it not now
upon record : how this might poisihiy slip, 1
■liHil teil you.
First, wchave no oiiginid enrolment of Mag'
Char', no Mag' Char* but that of king John's.
If i( be true, which histories say, that lien. 3,
did revoke his charter, it is possible these Rnlls
miglit -perish in that time ; the authority of the
kiiig at Oxford did enforce them to bring in
(heir records ; doubtless they would not leave
flu eurohnenrs. Tbs next step to lookfor it is
98 Ed. 1, confirmed there, aitd is exempliSed;
[he orit^inal tnnt be lost in so long a tmie ; whrt
became of aUParlivacrt Ib^lls, till 4 Ed. 3 f
All perished by lire or some other miMrhanre ;
[hings were atiervrnrds put ti^ether, and- upon
the rcdl. Ttiis was not th« original efirolmcnt
ol S Hi;n. 1, and written in the ruU where act)
ter time are written, and wiih the same
hand. If it were once in king Jol)n*s time, it
be left out somewhere. Observe this one
wore, that is, as this of Scnlagtam aid
Auxilinm doth cuacem the subjects in their
lands, there'is adaiue also iha[ concemeth the
sulyects in [heir persons, ' Nullus liber homo
' imprisonelur,' that might be taken for ordi-
nary imprisonioeTIt; then there cometh a pra-
n for the king that he should not do it,
li is ' non super eum mittimus,' such words
nt B man knoweth not what to make of
them ; but in tlic charter of king John, it it
' nee eum in carcerem mittimus.' la this great
thing we see the mistake, and how the other
haiApcned, I cannot tdl.
I now come tii Ed. I.'s time, nberein I bope
to make good those acts of parliament that we
have vouched ; and her« li>^[h a main endea-
vour. I'lic first was of 95 Ed. 1, which is not
denied to be an act, nor cannot. The other ii
De I'allacio non Concedendo, which is so full,
thatitCHtinotheeviided, and therefore is denied
to be ao net, FirW, for the net of 35 Ed. 1,
which b against aids and tailhigcs not to be
taken witbnut consent of the kingdom, T hum-
biy conceive, that by these words Aids and Tnil-
lages nsed in former acts, that these we[« meant
6l things for a puTilic defence of tbe kingdom,
complained of, and not denied. I shall biii^
iKime Ihe roll of the 33 Ed. 1, that th« king
dolh not promise to pay them * pur reason,' to
have words for their money ; but<hattbey innst
have a reasonable satisractton : I will sh^ thtt
was the sense given upon the record.
First, for the practice of the limes, that there
were ship-wtits went out, these writs went fiirth
in a more terrible [erm than any I ever saw,
' lub pif na forislactnra! vita et membror'.' 34
Ed. 1, was the writ. I eia fure tbK snch *
«rit, by the conimon law,- woitld not have been
mentioned, ihat if they did it not, the king
should hang them. This writ was die ^er-
atice upon the subject, and this act refers to
that. True, there were other grievaltces, 4to,
and 5to. but this was one ; and that these nkia,
which were ther> forthedel'enceof tlio kingdofn,
were included wiihin the rest, appear*. The
kiTig, in readily the articles, speideth, ib^it
what was done was for defmce; thoo^ troc
he hnd wars in Poiciou, and in otiier places be-
C^iid the sce^, yet ns true that it was a war to
e kept from hence by defence. That part
»as for defence cannot be denied ; and yet no
iliiiinction to be made bRween ■ foreig* war
and defence, and botb equally • griCraBce tv
(he commons.
- After this act of 95 Ed. 1, there cometh oat
a eommitsioo, and this wa« in punnaacc of tbe
premisa that the king did miska n Im gmBg
935] STATE TRIALS, 13 Chahiei 1. i6:t7.~iu^ Cast t^l^p- Money. [BSfi
into Flanders, knd Ihot nns Co Inquire of thoK
grie>aiic«| ill the nniclM, Rtid smflii!; ihe rrsi
'» el coriia' taken nway ' (jro
■nd to thnc tlie king sailli
- defensione
tbere, ' pay pour renson,' There liatli
t>r«r been given udio iliis, and mnch stood
upon, thai ih^ ting should mj upon tliia com-
nisHon to inquire of grievance * pro custnd'
■ ia*m,' if it were so* il Trrm taunt lis teneront
■ appsyer pnr reason.' [Vcu le Parol del Re-
cord.] That this should be nri moTp, than (liHt
the king would give a reascn why he did it, I
gaestion. As If he shnuld send forth commis-
sions, and afterwards dispute it, or If be did do
it, whether turful or not, that is not the wsj of
king almnld sbj he would
fer il, this commission did ^o forth to enquire
of tboM ip^Bvance^. And if the king hnd not
. nid be would have given anj sniiifHction, jet
his enough that it is inquired of as n'grievance.
It IB a wrong upon the subjeci, princes maj laj
taiei, jet ihe subject doth not call for saiisfiic-
tion. ' A princely word ihnt It should he done,
— Bat when the king doth sa; ' pais par rea-
• son,' to think, that thnt is no more than that
bewonid give some reason for II, is a very strange
infetence: In a bnrgnin thej use to saj, you
•hall hold yourself content with reason, you
thall not have your own demand, but be is
•atistied one way or other; so here.
To begin with a rtcord. 91 Ed. 1, Parlia-
ment Boob. A petition of the commons, and
the; did desire restoration of alt their monies.
Sd Ed. 1, there were two * 6e lanis et Tictuali-
bus' nithin that commission | so the monies
mnd (he things taken irere inquired upon by
that commission, 96 Ed. 1, were for defence,
and here ' Ordinatum est per conciliam quod
' rei satisfaelet eis qnam cilius poterit.' Upon
ifaii petition they desired satis^ction. For
goods taken upon the aforesaid commission, S6
ordered by parliament, that the king should
ta^fy ihvm so soon as be cnn, so that they
sbonld hi>Id themselves ontent, ' Ita quod
' cootentos haberent.' So that yoti*see, n .
MtisAtction by reason, Co justify Uiem, bat the
fcine should salis^ them one way or other. It
is that they shouid havt something for it, and
' not that they should have reason shewn them
why they shonld ba*e noihine.
But i rest not here, there is one parlisment-
nril remaining before 4 Ed. 3, and Ihnc was G
Ed. S, ' Pro pripre « frstribos 8ti Johftnnii
■ Jerusalem.* It is there set forth, that Ed. 1,
did command bis treasurer and barons of his
etchequer, to make satisfaction for wages
in Scnitinia to the clergy end Inity, < vriuCi pro
* lanis el corils;' and that satistaction should
be part by money and part by releasing of
debts ; so as thus the king had no meaning, S6
£d. 1, to pay back money presently, but would
give ibem satisfiu;tion one way or other, by
payment of debts, or releasing of debts, as was
oxplaitied by that of Ed. S. Another record
P. ST. Ed- a, Rot. 3S. SftCisfaction wu there
pttn for «o eighth nnd a 6fth.
Diose thingfl ichich were taken before !5 Ed.
complained of, and that confessed by Mr.
icitor; so as I conceive, though it bad been
iBgh thnt there had been an inquiry of these
things as upon a complaint, though I here had
been nn more answer. If any answer make it
belter, it is no answer to say, that they should
satisfaction by words, but either in money
leasing deiits; if none at all, confession
had been c no ugh,
I shall now come to talk of Mr. Solicitor's
.ceptiotis Co the SH Ed. ], where he endea-
voured to shew that this money for shipping
td not be intended irichin the body of the
; and If it was, yet it was excepted in the
saving of the act.
The abjection stands thus. No aids were
charged but such as were granted, and we do
not shew I hat these were granted; and there is
word beyond that, (prizes) and how far that
exiends, I leave lo your lordships judgments.
But if in the body of the act, yet excepted in
the saving all aniient aids due and accustomed ;
for Che saving such an aid due and accustoroM
lurely was meant there. — In this answer lieth
:his qnestion, whether theje were clie antient
lids due, or not, by the common.law? tbiswill
iland or fall on the body of ihe aipiment. I
shall leli jou what these aids were, and they
cannot be these ; there were other aids men-
tioned in the charter of king John, as ' pnr
' faire fite chevalier,' &c. Tbatvuhich takes off
all, is, If these aids were part of the grievance,
thou^ for the defimce, they cannot be meant
in the satinK, for that destroys (he purpose of
the act. And for that saving, ii never cameiD
by the cnnunons, nor the lords; but the form
being so, to CTBnt in part, and as the king wouitt
gmnt ft so they must take iti Histories do say
they did not like it, and so they desired an al>-
solute act. It was said, that aids and defences
were meant of foreign ones. If the king and
council were so wary as to put in inch a saving
as before vras not in the act, it shews whit
care they had to have that they could not have.
If by the laws they might have them for foreign
defence and not at home ; they that put In tEe
saving would have puC in a distjnctioii. I shall
leave the consideration of (his act to your lord-
ships, how far it shall extend tn aids for the de-
fence of the kingdom iniChat case.
I shall go on, and conclude with the statute
De TaUagio non Concedendo. That act of tht
95 Ed. 1, was indeed so well penned, that it
gave Mr, Solicitor a very probable colour to
make those plausible answers. The lords did
desire a better act, not with these words, ' No
such Aids ;' for < such' is a relative word, and
those ire dnn^erous words,
Neit, if no more be meant by the saving
than ' pur faire fitz chevalier,' &c, and yet to
have left these in the general, and nut m ths
panicnlar, had lefl a way open to question
what they had been. And in Wataingtiam it
appeals ihe lords were not cootenLed niCh it,
though it was signed and had passed the great
seaL It b tme, that n tbia'tima a pardon did
9&7] STATE TKIAUS, 13 Chaklsi I. mi'!.—'I% King againti John Htnipdm,ti^. ['JS6
and M not within diese vtonJs ' nutlum smitium
' ponamus.' And so all the practice erer lincc
will nel] staud with tliis art.
And to sa^shipiiing ii not metni, becanseor
the practice since, in notliing. Let meesiabliUi
once the laws, aud no mnicer fur the praccice.
If the laws be once settled, we mest reduce pre-
cedents to laws, and not laws to precedents. —
And for the practice yet, still tlie suhjeot make*
a continual clnini agaiiisc ibeui.
My Lords, to prove this is an act, WaUng-
hain entered il Iti liis time, who did not wnte
very lung after it. Though it hath been md
that lie was a monk, and what be wrote he took
up in ilie street nnd market place ; jet 1 will
□ot ihiak BO of WaliiiighHm, who was ever bdd
an hiitoriati of vei^ great credit. And no bii*
torian nhatsoever durst bet down aiiy ihiikg far
an net of p^liameni, if he had not a sure war-
rant fur It. It had been little lesl than forgery,
111 the next place, it hatli been said, hu-
good autlioriiiea in law. True,
thnt this was denied to be an net: and ram
■aid, and very colourable too, lo that pui^
pose. It it true, that this act is no where on
record, thnt we find ; but for that an answer
both been given before. — It is ioid, thnt is no
act, but only penned as a charter; that ex-
ception was once made by the tiuj^'s council
on another occasion. Acts of pailiament were
then penned so ; Mag. Charts, and Charta de
Foretta,are but in form of Charters. — Yea, but
we cannot tell when it was. How mnny acts
of parliaiuent are ihere which we know not
when they were? Historians best tell that. It
is bard to' find it when the records are lost.
But this will appear ii> be in the time of Ed. 1.
There is the pardon to those e»rls in as Ed. 1,
We know that tlie rolls of those lirars miscar
ried and were ioit, and sure It must be after
tbettatuteofSSEd. 1.
But then there is an exceplinn from the di-
versity of the penning ; somelimes ' nullum
' tullaghim ponetiir,' sometimes ' ponalur.' We
know, upon the entering of the roll9,khere have
heen dirers mistakes in the entering of' ponn-
' tur;' if it be with a dash, it may easily be
mistaken, and so only siftuDi if rijilorii, and uo-
thing else.
Then let us enquire what it vru if it be no
act. It is said it is no act, but an extract out
of 35 Ed. 1, and that he urged sevenil ways
npon several occasions. By the penning of it,
it dolh appear, that he that wrote it was a scho-
lar, and not mistaken, to make a thing absolute
that was relative ; for nullum to make il ta!e,
and to make that without a saving that bud a
taring, is a strange kind of saving. Yea, this
cannot be an act ; for at that lime there was a
Eardon granted lo several great lords. — Tf tliat
e irue, which history saith, when this act was
published, the lords were not satisfied with it;
and these were ^e lords ta whom the pardon
was granted that were not satisfied. And to
make their pardon the stronger, Ihey did weave
il into the very body of the act ; and for Wal-
tingham, ha is of great credit among ihe hiito-
rians. They say turtlier, that this is no act, for
this takes away those three aids, ' pur faire fitz
' chevalier, file marrier,' and ' pur corpus redt>
' raend'.' This is not so, acU of parliament
speak of it, and practice speaks of it, and there-
fore no law; and practice of ship wrtuevcnince,
and for defence of the kingdom. For the aids,
that is a good act; yet those were not intended
nor included wiLhin tliat act, and therefore that
practice is not coDlraiy, because it is not within
the words of the act, nor in the meaning of the
For the aids therein questioned, the question
was between the king and the commons, aud
not between iht king and tenants ; then that
being the question, there must be a considera-
tioa according to the occasion aud the doubt
made. But to take thus ' nullum Buxilium po-
probably, a
tlier or no there hath been such things done.
He tells us, not that this was far shipping, or
not for shipping, but tells us ihere was auch wl
thing. I have searched after this act, and I
have found in an antient manuscript in Hen. 4.'*
time where it is, and il goes there under the
nameofStatutum deTallagionon Concedeiido;
nnd I find il mentioned no where, but sbU find
it mentioned as a statute. I have an abridge-
ment of Hen. 8.'s time, aud there it is pi^ in
statute. I will not urge positively, but
hat an act in Hen. 4. 'a time. 13
ipinint of laying Utes on the
subject; the answer is, 'let the laws and statute*
'beobserved:' thiiis that positive act that dotb
reach it more than any oilier.
But the main answer that I rely upon, ia,
that if they deny the Inilh of an historian for
retgata u this. If from lime to time it batb
been conceived an act, what more strong * nbal
makes our common law, but gener.-il opinion*
nndallowancesf And should we doubt of mmiy
things done by the common law. That wiiicb
I rely upon is, the judgment of the late parlia-
ment, to which your brdsbips will give all re-
verence. This, my lords, did not pass tut li-
ienlie, but was mnde a queitton, and somelhil^
propiMed on (he king"* part, whether an act or
not f in the conclusion it came into the Petitiua
of RighL Tlie very statute mentioned in that
Petition «ns this, De Tallagio nan Coocedendo,
made iti Ed. 1.'* time. How far tliis question
passed at the committee, it is bettfr known to
Sour lordiibips, nnd is the thing whereon it is
uilL If tliis had not been an act, it had been
dangerous to have put it into tfaa upuer boipe ;
but It being there read, your lorCsbips know
what was done upon it.
The Petition being thus debated in both
bouses, I shall leave it to your lordships conii-
deracion, how far you will mak* Uiit qiMstim to
989] STATETRIALS, 13Chable»I. ]Qi7.—miheCoKqfSlnp'M<miy.
[990
T of
My Lords; Ai tlie oiIief day, so now asBin ,
witli four lordships' Tsvour, I slinll be bold to '
fum up my Inst d*y'9 argument m a very few
words ; and by tlie way clear my moiining,
wherein I was any whit obscure, as also add
wliere [ was defective, yei briefly in botb.
My lord*, the f>«Deril questinn the other day,
being cnnceming the king's power tn Iny b.
diarge of inaney upon ine subject; and ray
Jteueral eround a^ninit it btiiig but cbis, that
tbou^ UK laws did intrust the king in many
((Teat powers in government, and with [he
wbole gDvernmenc, according to the l»t<s; that
yet by doing of acts, which charge or prejudice
the subject in his estate, the law did see thai it
was possible that kings, as neu, might err,
aod Uierefore did make provision, that their
acU, if against law, should be void, as in case
ofa disseisin or discontinuance, or where they
were to pass grants, that there should go before
an ad gaud dainnun ; and alio, that if tbey
were passed, and were to the pr^udice of ano-
ther, that rej-ularlj in that case, the law did
make tbem naught, and chat they were to be
repealed.
And I shewed bow this did hold, especially
in laying charges npon (he subject. 1 shewed
lliat the taw v/aa not wining to leave the king
power to charge in any case, notwithstanding
where tlie occnsion might be common, and did
require, for the maintenaace of traffick and
commerce betweea them, so to bold them stilt
■•within one body. Tbe taw must leave in
somebody a power to chnrge, which would be
left in none nut the king as supreme governor.
Tbe cases for this were tbe monies to he paid
for murage, pontage, paveagc, ferriage, and the
like. 1'bal in those cases, though the king was
trusted with ti povier to lay a cliarge ; yet the
law did not leave the charge arbitrarily in the
king's breast, so, but that if it were unreason-
able, the grant wns naught, and the proportion
was to receive trial by another, upon irhose
jtldgment it must stand or fall, which were
either the judges or a jur^ ; like to that case
which 1 might have put, but did not, of u fine
uncertain upon a copyhold. I also shewed.
that in some cases the law did allow (odrmand
«rbilmrily upon seme subjects, sums of money,
yet that was not upon the subjerts, qtiatfniu
subjects; but upon some subiects, gnetmul
ttntHlci, which did rise upon thefui rentulart,
as to marry bis daughter, to make his son a
kniehl, or tbr ransom, or upon those who were
littte better than villains, the king's burgesses,
whom the law did not so much regard ; vet the
policy of the kingdom, in those cases, did after-
wards restrain the king to a certainty, by act
of parliament.
Afterwards I went to the cases which were
fa point, thu tiw king could not lay » duuge
upon the subject, though for a public good ;
and instanced in the cue of the ^ant of tlie
office of measurage, with a fee, adjudged void,
' quia sonac in oppressione pnpub :' 23 Ed. 3,
Pat. 31. The king granted to one Pawley, an
office of aineage of worsted; and because in
charge and burden of the people, and a new
grant, adjudged void, and was repeated.
I begin with that of 4 Will. 1, which I now
find more clearly to lie an act of parliament,
out of an ancient manuscript of the church «f
Litchfield, mentioned to this purpose in Ead-
merus. Here 1 endeavoured to answer to Mr.
Solicitor, when he said, that there was aoother -
hiw of the Conqueror's, which explained this;
and shewed, that the chni^ea for the public de-
fence were not meant, because it is said in ano-
ther place of the same law, ' quod omnes sunt
' fratres canjurali ad regnum defendendom/
To this my answer is, that they are so for ilieir
bodies, ' I'ratres conjurati,' lo setre, but not to
be charged. Yet I must confess it is ■ pro th
' ribus eC facultatibu^' to deficad the realm ;
where ' pro fscultatibus' may seem to imply.
Chat they were bound tn be aubject to charges,
' secundum bcultates.' Under favour, ' pro
■ viribua et facultaiibut,' are but words of hke
nature ; tiribui, thnt is Jacuttalei, natural
powers, not substance ; for it is not oidy Ihai
they stioiild be ' Fratres conjurati ad r^nDin
' defendend.' but tdso ' ad pacein dig'nitatem
' coronas, Stc. et ad judicium reg' etjuHititn
' faciend.'
inrolled, remaineth under seal, and it- redtcd
verbalha in Matth. Paris.
I went next to the acts of parliament, S5 Ed.
1, against aids and taillages; there 1 laboared
to shew, that the act was made against aids and
taillages, though for the public defence ; and
that was out of the Articles, whereopon ibe
statute was made, and upon the king's answer
to tbe Articles: neit out of the commons, which
was after the statute, to enquire of ihe griev-
ance mentioned in tbe articles, to the end there
might be satisfaction, which wai promised upon
the Articles; ivberr, in the commons, the whole .
inquiry was de gravaminibui. — It is enough tor
me that this cnmtnitaion was grounded upon
the former articles, and that herfi this very
^iuKi ' P"* defensione r^ ' was ' inter grava-
' mina.' It had been strange, when tbe kin^
had confessed upon the articles, that be would
not legally justify them, and upon the com-
in^sion, in pursuance of the articles, bad called
(hem Gravamina, and so to be inquired of, that
now when they were found he would justify
them in any point, and say, '■ a pais pur reason,'
give them a reason for what he did, as Mr, So-
licitor soith.
Next I did conclude with the statute De
Tallogio nan Conccdendo ; and there my labonr
wns to prove this to be a statute: and L am
torry I spent upon it so much time, if that had
not been denied by Mr. Solicitor to be a sta-
tute. But now I uodentaod, by tho kio^s
991 j STATE nUAI^ ISChaklebI. 1637. —Tie King (ieaiitttJi^HaBqNiea,ag.[9ii
side, ihat this nes oo Matute, but made and
■ealcd at the Eame time nidi that of tLe a5th,
and meant to be uo more tlian cliat or tbe
SM. — Tills se^uetli Mrange: for wliyilKKild
ibey be botli a( onetiue^ Next, how came
they to much to dilfec, if id;k1c at ihe ume
tiuiti i WLy are there ^aie diLnKS iu tJie sta-
tute De TaUagiu awi Concedvnito. which are
not in the statute of die Sjth?— But tbe Tcite
will clear all, lint far the Teste of that of
the 3oth, it was Tate Ed" prJneipe, aiid sealed
b^ no more lliau the king : Ta tlus the arcb-
bt^pi and lunJs put their haiidi and teals.
But, however, I em glad to bear it now coti-
feued lube a Ktat«tei for tlien ire'have no
more to ds, het to see whether tbe ctuirge of
tbe defence were wiiliia tbe aicaniii; of ttiete
word), (vbereiR sare the vrards are general
. enough; andwhat reasons biivebrenj!iven,wliy
by t}ie«ipasitiuns of tbeie, charges of defence
thould be escffitfid, you hare heard ; and wlut
my aaswGTs have been unto tbeni, I leare to
jo«i kirdsliipt judpnenta.
I coiiMt unw to Ed. [be 3d's time, IT Ed. 3,
Purl. Koll. Wheieas ooiiiniiiisions have been
avordtd to the fieople and diires, to prepu'e
iiieit at armi for RcotlsHd and G&sooigne, or
eleewlwe, at (bechiirKf9afilit;sl>ires, cDuirary
to law ; the kMe hath bm, before rliis time,
given wnifes, nlici'eby the people have been at
Creat cliarge, aud uauch ieipoverished. The
lAg wills, ttiat.it be done so bo more. Ay,
but it WHS said, this wun to Scotland ood to
GKouiffie i and iliat lid^ was larei|p war ;
and that wai ^leoled, though not admittnl. —
I answer, that in thote tinei, Scotland lield in
fee of the seignury of England ; aad in thosa
times the Lii^ of Engiaud ivai ' I>omiBus di-
< rectus ScotiK ; and bo Ed. 1, when he deter-
Mtued lliBt ^uwrel betveen Rriux and BaHol,
MKJ gaie judgmont by writ, settled Baliolking
of Scot laud, and did justify it i md it ig re-
Huitting ID tbe rolls of Scotland, iu Mr. Sqnire'i
sfficp. When tlier-a was a treaty of peace be-
tween Biliol and Ed. tbe lit, fae refuaed to
•ckoowladge iba lignory of F.nglaud; and there
tbe parlitnwut reaolvetbe should rather have
% war tbau lose this. So tee Selden itpsn For-
tescnc War in Sootlaod, not foreign w«r, bat
like to that iu Wales : and to was it ever bidc*
held, ainca the conquatt, to be within ibe tig-
uoi^ of Ei^laad. By tbe uitLatc of 13 Ed. t,
and by (be statute of Hen. 8, it appeareth to
be witJuD the iac of Euglaad. War egaiast
one another, oa»nat be called a foreign war ;
M in tbe war te Scotland, Wain, and eltie-
where, whicli ia not meant of foreign pnrti ; for
tben it would h&ve been AKprcssed where, w
well as Gasooigne. And by tbe hiBtories of
tbosc times, we sball find there ware armiet
carried to no other place. Nay, to altew this
^tcwbere is meant in EBgland, ate the 1 Ed.
S. Pariinaient-foll before this fMrliament.
The Scots invaded England, m appeals by a
-writ of Ed. 8, where is (Doition of on invasiaa,
«nd tliereupon petjkireB aid. If there lie wan
in GaacoigM, and if vocaiiom -to Scotlud,
and in Ei^nd too where tbe Scots ate, and
lUis a dcietisive war. Furiber for tlie wars of
Scotland, if that should Lc called a frireign
war; if the kii>g sluiutd go tliitlier and mske s
nar, yet by the rules rif the king's council, if a
war in foreign parts is but to piecent a wv it
luime, this uar is not foreign, but for ddeucr.
Another net made on this oc(»sion, tbat [be
king wills, t £d. 3, c. 5, tliat ua irirn bcno:'
fortJi bhiill be charged to arm ilieniseliei^
utlicrtvise ibaii formerly in tbe liingdam nf
England ; and nut to be cam[«llcil to go out
of their counties, unless upon tlic sudden
coiniug of an enemy, and in case of necestiiy,
and then to be done as iu times put ; this tU-
tule coming in the same year wbeu tbe com-
plaint was nude lor carrying meu out of tlirir
counties at llif ir own charges.
Here 1 observe that the sutyect sliall dm go
out of his county, not ouly at sudden couiiu
itf enamies, but likewise on occetsity, and both
together. And when it is saiti, it sl^l 1>« dune
as rormerly, it as an allowance that they bad
furiDcrly been paid. So then, if thii be a
stmnsL'r cas«, admit here an actual comiag of
enemies, liny, sudden, nay, here is a necRHiy,
and (Iw subject is to go- ou.t of Iiis couBtty,jir<i
potte tuo, yet he had bis allowance.
i'crhaps it may be asked, why sbauld not tlie
subject pay ? Ii uot the kii^om in dsBgeif
are they uot to defend it, pane lUO f Tbcy ut
so in their counties; and if tbey go out, the
law Iialh provided A supply. paibainent-ruU,
13 Ed. S, there was a titue when there wert
known enemies, actual wEtrs in France; diey
intended to divert tbe war by bringing it hanie
to our own doors : the euemies threateiied
■uich, nay, did mudi hurt ; yet didnot£il:3,
commaad liiese supplies this way, but called a
parli;inieut, and there consideration was lad u
Clinmeut for tupply, and tfast the kingdeo
ships enough, if tbey were wiliii^i u4
tliit was in way of Defenca.
From all tbu I conceive that it is Itrongly
inferred that be oould not force tfaem : ud
when the lords and conuoMis did meet, to tat*
consideration for the wars against France and
Scotland, the commons laid the whole cluiKt
on ilie Cinque Potts, they disclaimed to htva
any thing to do with it. And for the lamt*
tervioe, they said, let those of every couoij
reside there, but no charge on the subject is
pursuance af this. ClauB. IS £d.3, m- 11, ct
14. dors. The town of Bodmin dotb shew ih«
execution of this Judement; it being agi«cd,
that the seo-towus, aud bordering sLorei, should
look unto it,
I shall agrea that some inland towns art
bound by use and tenure, but no otherwise,^
Ed. 3; c. 1, that the people are not couipell"
to make any aid out of parliament ; and tUC
tbi aid granted shall not be dtawu into eitm-
ple ; and that the aid granted is for tite deleaa
of the MB. But it hath been said, that tli«/
are aids granted for foreign wars, for llic **■*
tu France. True, they vwe in part grwted,
•Mieibrttw »arsiitFiwae,ai]djnrt«UBli)r
898] STATETRIAl^, UChablesI.
dc&Dce ofk this side. And where there is no
distinction, whj not for the odp m weU m the
other F I E must, luidec fmTOUr, he conceived
tor either or both. And between this time of
14 Bd. 3, and 35 Ed. 3, jour lurdsliips have
beard from Mr. St. Jobii, some complaints in
parliament, fur chai^ng the counties with
Hotibellers, and going out of Lheir counties,
which are not really compleitt, ecly for propor-
tioD in reeanl of their succett, but also for ttte
thing itself.
9 Ed. 3, m. 31, The commons 'pr*; to be
discbarged of the gunrd of the sea; and that
the king would keep it at his own charge. Tliis
shew* the judgmetiC of both houses, and tlie
weight of it is ver; great; for when there is
"htij^ difficult poiot coDceroinfi tlie liberty' of the
salgect, it is referred by ihe jndjies.to ihe par- .
liuoent, to be there decided: of that reverence
is the pariianienL
But it hath been said, this is rather a matter
of pnjer than rijjhE. ITnder favour, the matter
•hews that tbej claink in point of right : and
h is to be supposed, th«t thej would nut make
Hicb an UDrensoiiabte request, as to laj that
whollt on the kmg, if the; of right ought to do
iL And if words were put m a fair language.
It WM but a lit and humble langunge for so
(rest a prince as Ed. the 3d was. But Ed. the
Sd gave no relief; vet that doth shew the
jndgment of the two bouses; and ai there was
DO granting, so tliere was no express deaial. A
handsome prayer, and a handsome answer.
' 14 Bd. 3, Parliaiucnt-RoU, there it appears
tliere was a charge of 2f. on nil woolfelfs, and
this fur defence of the sea ; and in the l^tb
takea away in the parliament.
I shall cimclude this »ith the 35 of Ed. 3.
No Hobhellers were to go out of their counties,
nnlest by commoa consenL This statute is ge*
neral for defence; there is no eiception : if an
•nemj do invade, the parliament believes the
kingdom is provided for. Yea, saitb Mr. So-
licitor, the sabject is not charged tu go out of
the county, thut is, upon summons, ad stra-
tum ; for summons is twofold. Fir«, a sum-
mons ad txereilum, and then a genervt sum-
mons. By the summons ad txercitvm, only
those were to go that did ho!d bv tenure ; and
they say it is encounter ^roit, to be cbari^ed out
of their counties. It is true, about this time
tfacra are some records «f 16 and 18 Ed. 3, in
the Exchequer, where charges are laid on the
luliject for hobbeliers, and such things ; but you
■boll find in the Eicheqaer that tlie monty
came tiience, which was before the statate^
these things were the grleva<ice> complained of.
So the praclice there will not expound the sta-
tute, for the omtrary practice did becet the sta-
tute. But the last of these, in 94 Ed. S, who
was an active prince, and maintained ware, and
•0 had great occasion for moneys, and so charg-
ed the people higher than they would endure ;
for which he did afierwards repent, and desired
to he prayed fiir , and therefure there were
djven impositions on merchants; all whirh I
pua over, only tfut out of the Uoll, 50 Ed. a,
YOL. lU.
IS37.— in t}te CoMc qf Sh^-Money. {S94
m. 94. It is the lord Latimer's Cnse.a privy-
counseliiir and chamberlain to the Ling; there
was n complaint in parliament iigninst liim for
diters tilings, whereof one was for In^'ing an im-
EositioD upon merchandize. In hisjusulicatioti
e pleads the command of the king; and for
that particular he whs sentenced, imprisoned,
6ned and ransomed ; so careful nere they to
revive that law. Aud that hcotence of hu,>2
Itic. 9, made the great lords so unwilling to
talk of the defence wiihoot pnriiamrnt.
And so I come to that of 3 Kic. 2, upon
which I must insist, for that it is of great weight.
It doth appear, a* welt by the consultaiiou it-
self, as by history, that the realm was in great
danfier trom several parts ; as from France,
Scotland, &c. and that the danger was so in~
staut, that it could not stay for a piirlianieutarjr
supply; therefore the council uf the Liug nera
to consider of it; they know not what toad-
vise; they meet toKeiner, tliey had no time tv
cull a parliament ; hut the lords, both temporal
and spiritual, and sages of the realm, conuder-
ed what to do; when the safety of tlie kingdom
laid so at the stake. The resolution of these
lords and sages, who were, ais I conceive, tlie
judges, propter tjeteUtntiain, conclude (bat
there was no way but by parliament, aud «U
(his was for defence, and against an instant
danger, which conld not expect summon* of
pnrlinmenL And the lords themselves rather
lead money oat of tteir own purses, thau od-
vcntura [hut which Latimer did; which indeed
was the ground which mnde them wary.
To this there were many auswers, yet si] will
foil off. It is (rue, that it is no act of parlia-
ment; yet such a resolution, tliat had it been
300 veats before, wootd hare done much. The
weight of this is thus : if this had been a parlia-
ment, there is little doubt what this resolutioa
would have done: for the matter we have the
resolution of the upper house ; and how the
commons would have resolved in a point of
liberty, we may easily conceive. Here u;e have
the judges opininni in point of the legal power
of tlie kmg, what tlic kingwoeld do, as well as
what he should do : and in things of this nature,
the judges are the king's council. And ns IB
the great council, (the parliament) they sic
there for counsel in things that belong to mat-
ters of law, so at this time in this assembly,
which was instead of a parliament, these were
uot left aut, being best able to declare the rule;
and this was about two years after Edwnrd the
third's death: he could not then have an>
oiher than the council of his grandfather; ani
of ilieir resolaiion was that the king cuuld not
charjie the subject out of psriiament: and
liioui()i it tvNS nu act of parUament, yet it had
the honour lo be so accounted, else it had
never been entered upon the parliament- roll.
Bnt it k snid, by way of otjectiqn, that Ki-
rhnrd tiia second was then an infuui. True,
he was so, but he had a brave mnn for liis pro-
tector, Joha of Gaunt; and he hnd duuhtles.4 a
select council, and they were as fearful as mi^
be, that nothing aboiild be done that mi^
995] StATETKlAI^, ISCmablesI. msl.— Tie King agnirutJ<AnH<mipdai,aq.[<m
wrone (he king \a bU prerogative. It is true,
they uad a power of doiug thiiip by parlia-
meiil, yet tliat nas no act to restrain die kiog,
bul na act of uecirssity : the kio); WRS un infaiu,
and ili^rcfiir? it was lequlsile, that during his
minurilv nothing; shoTilil be done hut in par-
liameni, especially that concerntd tlie king-
dom; nhich was n^ic a a-Mrpnig of ti^c regiil
pontr, but H priividtiit cure ui the king:)iiin
and liim: and tliey do promt in that roll ugaiiist
incroiichiiKiats U{.un the royal pin-er ; and t')
say ilint is good, n:bich n tu an ill iuleni, is a
strange consttuctton.
' Tliey )<ny [hat thic rontullalion trns for fo-
reign wars; for that Breast and Caliiii were in
ilniif^er, and to be provided for: and for fo-
reigu 'rtit? it is agreed the kingdom could nol
be charged. To ttiis I answer, admit a mixture
of nars, yet every one loiks hoine first : ne
have a care of our<ehes lir^t: but thej ivould
have mode no such difference, if the debate had
been for hath. However, the lords conclude
llie ting miiiiot charge wiihoot parliament.
But 1 cannot leave tfais objection, bnt shaU
Rive n particular nnsnef ; ttiough Brc«t and Ca-
lais might be iu danger, vet that niis no pait
of this consultariim ; forititsaio in liiat con-
sultation, that in a former parliament, sutHcient
pruTtsion nras made lor them. True, they n ere
)n danger, but provided for in parliament be-
fore; and that vrhicb clears all, under fnvour,
there is not a word in that cotisoltation, but is
merely (iir the defence, and no relation to a
fiireieii ivar. I end tliis ting's reign with ihe
8 ana 9 Itic. 3, rot. 10, where is a consultation
with John of Gaunt for foreign wars, and
others mixed together. It appears the suhject
is not chnrgeahte out of parliament.
And to I come to Ilcnry the fourth's time.
9 Hen. 4, bath been ur^wl, and an answer
civen to several cbnmissions for Cnlais, and
for the defence: there was then a cimphiint,'
bid R d^ire that those commissions might lie
recalled. It is true, we find not this granted
expressly; but as no grant, so no denial; and as
we take it, it was granted. This time of Henry
the fourth did yield ihany instances that the
.king cannot charge, though for the publrck de-
fence. I shall remember a record which the
other dny I vouched. Par. Itol. 13 Hen. 4,
m. 43. It was upon nn action of the case
which we find in the books, 11 Hen. 4, which
w[ispleDdedinl3Hen.4. Tlierewasan ofGcf of
measunij;* erected aud granted, and a fee
granted in it; this was complained of in pnrlin-
nent t first, an actinn was heguo at law 1 1, nnd
ill 13 Hen. 4, a complaint in parliament; and
they compWn that this was against the statute,
that no taxes nortaillages should be laid upon
the subject ; anK the answer is, let the statute
lie observed. This use I make of it; this dolh
not only shew the coiifcsfioa of the thing, that
this ought not be li-.iH, hut that, this statute. De
Tallagio non Concedcndo, wns to be a statute!
Mndthisstntutewasnot for aids that come to the
liirc in pBTtJcnlar, hut against any chnrje laid
Yj ttie tins upon the suhjwt, though it be pro
bono publico i and open the record, th« jodj-
ment w^-^plivcred sn, because lonat in jircja-
dicium f.puU.
I shall remember the grants of tonn^e Uld
pnundage to Hen. 4, and the grants usually to
hun were temporary and upun occasion, and
not for life, until afterwards ; and in bis timt
they were for the defence of tl>e sea itid kiaf-
(loni ; and it wii granted upun condition, thtt
it should he coufesied it wbs granted of Iosd,
and not of fight. 9 Hen. 4, m. 16, and II Hen.
4, m. 45, and 13 Hen. 4, m. 10, which is the
fullest ; they make a protestation it ^hiill noL
he drawn into example ; yet alt that time ntie
iuiminent dangers.— But it was said, ne an-
nol shew that purely, and simply, and soldj,
it was ever granted, hut with q miiturc of
other things, as that of tenths and fifteenths.—
But the parliament was so wary, that llie; did
■ever them, and lay the tenths imd Alteenthj by
ihemselies, aud tonnage and poundage by it-
self; for though tbej are the same act), yet
tipon the matter they are several.
I Bin now Come to Henry tbe Sth's time; and
for him there Is not much, but like Henry 4,
Parliacttent Roll, 1 Hen. 5. m. 17, a grant of
tonnage aiul poundaee fur tbe defence of titc
realm, and safe-gunrd of the sea, with a ptolc^
atioo that thcj should not he rlmr»ed fur lU
time to cnme. I think after this time tre itA
no more proteaalions or grants upon condition.
But that nhicli I argue from these grants madr
iu this manner, is, sure it was the opinion of
the parliament, that they were not bonnd; and
the king by his acceptance doth acknowlMigcM
much: no landlord accepts tluit from tlie truant
OS a gift, which be may command asndulr;
and to take it nn terms so advantageous fur lU
subject, and not only give an acquittance foiii,
but put it on reconl tis in point of right, livi
here is au nfiirtnation of the commons; snd
though they cannot make n law, yet iliat nhicli
they do, and Ihe kii^ accepts, shsil be of a
strnn^ proof. Again : It is (rue, you slia'l not
charge the subject with tonnage nnd jxiuudage
without parlihment ; but shall not the lubjcct
be^Uirged another vaj ?
To what end would tlittt protestation b"T(
sened.tiiat the king should doit another "aj?
And it in all one.if the commons hear thechaip
ofdefei:r:e,whetlicr they bear itby innnateanil
poondnge, or otherwise; fir that nhich fall! on
the particular, falls on the other. To ciiarge
them ibn:;, were as if thckiagshnuldiay, though
I cannot charge you this wav by tonnage and
ponndage, yet I will cliarjre ynii another "jy.
In the lime of Henry tbe fith there ii lit'lt-
—I come next Co the time of Edw. 4, "heifin.
though thej'e is not much upon statute, «tl
there is a speech of his that shews much of this.
7 Ed. 4, Pari. Roll. 1, there was a speech made
and cited. The king first protests, which ""S
not immediately upon his coming to the crown,
that he will live of his own, and not cliarne tbe
commons bnt in cases extraordinary, and thw*
burdens too should he lecunrfum werrn mn^
rum : and that be hopes they will be as lendw
997] STATE TRIALS, 13 Chaklks L imi.—miheCoKtifSh^Mon^. [MS
of, nad kind to him ns to bis predecesiors, sn^-
ingthat he would laj no cliorge upon therflj but
iu cicraordinu'^ things.
Tliie sliews, iliac ^ihit was ^rauted hy tlie
cominoiis, lliouj^b upon (.-^traortiinac^ oc^Hsiua,
WD3 not outafdufy, butout of tenderness; and
litis was tt good white after bis victory, and
(jijuld not upon the mutter be colled a brokage.
And Chi« fa^s uoi under the answer of :Mr. So-
licitor, that money was borrowed of ibe poor
ini?ii, and rciEcu lliut Cbevihould be^paid again.
— Uut those lo^ns were by way of coinmiiiioa,
and not to same poor nen, but tber did coti-
rerii the genercJ. And though Kicli. 3, liad
reason to briug in good laws, because of the de-
fect of hit title, yet my lord of St. Albans called
it a bind of brukage to get the people's good
win ; yet, boifei*er, this must be a declaration
of both Iwuses nf parliament! •"<' '^ **" "OC
iu much offered by Rich. 3, but because Edir.
4 had loade many borrowings.
I come now tu Henry the 7ih'ii tinic. That
uhich hath been presswl, is the 19 Hen. 7, c.
11. Provision Uiat the king's aervants UiaC
were to attend upon liiui in the wars out of the
couniic.?, should be paid ; then if they were to
liavc it, then i ^fortiori, they tlint were not to
attend. This shews that the king is to be at
fhe charge, and not the subjuct. The oiisucr
is, tliis extends to foreign wses, and then no rea-
son but that tliey should he paid ; and so will
not sen-c our turn. If there be such a differ-
ence between foreign and home wars, why do
DQt the acts of pai'liatnent make a dilTerencc ?
Che words are general, and extend to wars out
of the realm and in th« realm ; aud where the
lam du niic di;>tinguisb, neither, I hope, will
vour lordships.
Now I cuaie to Hen. 8, who was as unwilling
to beg, ns powerful to command. 13 lien. 8,
cap. 30, the king desires for some necessity of
eoverfiiQentjnnd against an instant occasion, to
Mte poner tu make a proclamation forgovern-
meat, and to do it under penalties-. A law sea-
sonable for that time, thoueh it continued in
Ed. G.'s time. Aslie would Tiare liberty, which
lie could not have without parliatnent, to lay
these kind of penalties on aian ; so the pariia-
■nenc was as careful Co give him no liberty to
lay al>y charge upon their estates, lands, or
goods. So as, though fur the natural govern-
(nenc they leave him a power to lay pen.illies
upon others ; yet to lay nny tiling upon their
fjoods, that which is meum ct tuuia, he had no
iberty ; which is a declaration of the opinion
of the parliament, that by the common hiw he
could not doit.
But in the preambte of the act it is said,
that there is some intimation of the power
of the ting, if he will ; and upon that pra-
amble indeed Cowel would have built the
royal power of the king. But Cowel was mis-
taken, aud had his reward. It is true, there is
something in the act that gpeaketii of tl;e regal
power in necessity, but uot alisolute ; and that
too came in by the penning of it on the king's
lide. And 21 Ucd. S, your lordships kuow his
poner, and how be was not to be retisEed in
small thing^s. If he could pull down those ab-
beys, what could ho not do P Therefore ii wu
not fi>r them to question with the king upon tbs
penniiig of his preamble, but a ducifulness in
them 10 conform theiutelies. And when there
was provision enough made against that in the
act afterwards, it Had been a weakness of the
house so to do.
Yea, the act was that die king could nit
charge the lands nor goods ; but iliere is no
such thing in our case. It is true, there is no
immediate cbai^ laid upon the lands or goods,
but in substance and conieqiictice there is n
charge. It is all one Co me in substance, where
my life and tienelic is the same in either way.
Aiid if I am c&ied lecundum statum ct facut- ■
tula, I mu!t pay the money out of niy C1^tHte;
and in the penning ofan act ' non litigatur da
'verbis seil de iutentione.' And il I aia
charged and pay not, my goods are taken away
aud sold; so it is all one to me, as if it had
been laid upon my goods.
For the times ofE. S, queen Mary and queen
Eliiabeib, and his late majeitv king James, I
shall put my obsen'acian ot all these into one.
I lind not much upon the Parliament Rolls for
these four; few s[atutcs were made, yet in every
one of these is offered one act of parliament,
which is B stronger proof than any of those
which have been urged, and such proof ns doth
only come home to tbc defeuce of tlie kingdom,
ia case of extraordinary defence, in case of ne-
cessity, and in cage of invasion. .411 tbii arisetli
out of the consideration of the penning of the
statute of tounaee and poundage, in the brgio-
ning of every of their reignsi The act that I
mention, is 1 Jacj where it is said to this effect,
that there may be times of necessity where tree-
sure is not to be wanting ; aod it is nnlit tlie
treasury should he unprovided at any time upon
necessary occasions; and thercrorc ihey grant
unto the king, tonnage and poundage. But
how? not for quid pro qvo, not merely for
defence, but towards the defence of the king-
dom. Then by the judgment of the parliament
this being not granted formeily, but towards
this defence, and towards his great charges ;
therefore, by that, the chaise by the laws ousht
to lie upon the king. — Now, my lards, if the
k ing were not bounifto the defence of the king-
dom, whether or no would lie accept it on these
termi; and whether it aeems not more ihau
probable, that in case of necessity the charge
may Dot be laid on the suhject. 1 Ed. 6, c. 13.
Maris cap. 18, 1 Elir. cap. 19, 1 Jao. cap, 33,
are the several grants of tonnage and pouarlage.
I conclude ^is part with the- timei of his
majesty that now is, which in the point of de-
fence have been stronger aii<t greater than be<
fore, both in point of laws, and in matter of ei-
ample. I take my beginnin[> in this upon that
parliament 3 Car. upon the Perition of Right,
and his majesty's Answer and Judgilientsta that
are something home.
The Commission of Loam and Benevolence,
the necetfity of tlu time did T«<]u'.re an instaut
9?9] STATE TRIAI5, ISChahlesI. \637.— 77ie King agaiiul Join aimpda,aq.[\(IIKI
Mppl; ; and it appears by the Conunission, ;
ihat there woj h iifcesslcj nhich could nut stxy
for a supply anotlier ivay, and your lanliliipk
knon ntint wasdoue in this. This Cuminissioii
was not to borrow of a few, but it was gsnerol,
with an equdi and proportionable weight ; and
ihia, as it appears, was for the defence uf tlie
IciDedoni. It hath been laid, that mention is
mnde of supply fur the Palatinate, niid to send
aids to Denmark. True, it is so ; but that of
the Palatinate, und ibat of Denmark, do ujion
the matter concern us; for that war being upon
Our resolutions, tliere wasakind of engage ment
laid upon qs.
In that Commission, there appean moie tlian
n possible danger to the kingdom ; there was a
necessity, jet' this nas laid dann, it held not ;
and in purtuancv thereof there vcas an Order,
whereof we have a -copy ; it is in the Exchequer
moved by the king's Attoroey for blayiiig the
proceedings for money spent about Loans,
which was by his majesty's gracious command,
wherein his majesty did preii
desire
The Petition goes on, that there were soklten
billeted in several parts, and ihere was a
charge; and this was afteralate foreign war,an
enemy llien knoiii n and declared ; there was n
necessity forinstaut defence, and to staud upon
our guard ; the enemy might in a short time
have been upon our coasts : yet your lordships
know what was said to that. And as llie Pe-
tition looks back ti> those things that are taken
off their handi, so it looks forward, and pro-
vides, that no sucli things should lie tiiken
hereafter by the power of the king alnne, nl-
though u)Kjn matter of necessity. And all this
was a Petitionnot offaTourmerelj, bulinpoiiii
of right, according to our laws and statutes,
which nre the statute 35 Ed. 1, the statute Ue
Tallagio nan Concedendo, and Magna Charta,
the ground of all. And lo all these bis majesty
protoiseth such tilings should be done no more.
And they not content with this, bis majesty
^vesthis answer, ■ Sait droit fait.'
I cnnnoc leaTe tliis great strength thus, bnt
bring it home to this very case. The substance
of thi? Petition belngforchari' ' ' ''
out of parliiuiientby the royal
Petition had passed the lower Iiousc, :t came to
the lords ; and upon some motion, there was a
propositiou of a Saving to be put in the end of
the Petition, siifiug the sovereign's power,
which his majesty is entrusted with for the de-
fence of the kingdom. All this your lordsljips
know, that after several conferences, in the
Goaclusiou the Petition passed without any Sav-
My lords, upon what reason this Saving was
left out, your lordships may see by tlie record,
which your lordships and the rest of [he house
be>t know, and whether upon this reason or
not.— That the laws the Petition went on, whe-
ther the Saving wnutd siand with those laws.
My lords, it appents that the lint Answer
was, tliHi the laws I'lipuld be put in eiecution ;
. jet in the close there is pat in a wviitg of. the
prerogative: but this Answer did not satis^;
and therefore there~ was ■ general Answer,
< Soit droit lait.' But uaw nhat was panted
by the last Answer more than by the former,
only that the Ian was left more absolute t
As to that commission of advice fnr couside-
raliun of means to rnise supplies, and it wasfiir
defence, and a necessary defence, aod that did
not bear delays, that commission was laid dowD
by bis majesty ; yet in that there was no moie
than tliis consideration, bow supplies m^Lt io-
stuntlj be raited, which could riot endure de-
luyi by impositions or otherwise, that is itiU
lawful ways. If there bad been any toliya
charge on the sul^ect l^r way of ban, then tbit
commission had not been excepted igsiut;
jet his majesty was pleased lo Uy down this
upon the desire of the house. '
1 conclude with that which I conceive to be
the judgment of both houses in poiirt. Itistbe
jud^neut of both houses against the Setmoa
touched upon by Mr. St. John, which I shall
press OS far as it will be applicable to our cast.
— The Sermon was to iheiv the power of the
kiup in case of necessity to lay a charge on the
subject without a parliameut. When this came
into the tower bou^e, this was the main and
principal charge, I saj not the sole charge.
Wlien it came into tlie upper iiuusr. there it
was pressed against that divme by the king's
counsel; and it appears by \lie journsls of the
upper bouse, that the crime was, that be should
shew [he king's power to charge the subject
without ptirliainent. It appeals by the ssiiJ
joifrudls, ihnt the Doctor's excuse was, thst be
meant nothing bat to shew what king) might
do in extreme necessity of danger. And youi
lordships muy read in liis Sermon, that he
speaks of necessity. Dot attending the slaw no-
lion of patliaiuentary advice; so that it is
pinched on extreme necessity : hut neitfaaotie
eicu(e nor the other did serve bis turn. TTie
oSence is acknowledged, submission msde in
both huuscs, and the Sermon called in by piD-
clBmu[ion. Ay,but, saith Mr. Solicitor, this
SenlcTiCe was for other matters. I say 00^ bin
ihjt the Sentence was for this tiling aloae:
there were otiier thines, hut tliey were only bj
tlie bye ; only occasioned by this. Now bow
far tins case comes to our case, I leave to your
lordships judgments.
May it please your lordships; I have Juis
fnr gone on in my proof from renton, book),
cases and authorities, all being of highest na-
ture, that is, by the laws of Englnud ; that tbt
king cBiiBOt charge his subjects without their
consent in parliament, thnugh it be pro turns
publico, or for case of necessity. It now re-
mainctli that I otfer, what either the pnctJee
haih ever been in the lest times, and Vie con-
trary pr.icticB decried frrjm lime to time. — In
Ihi) I shall do a work of sup^erogntinn. St is
not material what the praciice is, if the Iswt
be once settled. Alawoncemade, oTer-ndc>l>
1001] STATETRIALS, ISCbaM-mI. I8S7 — m riie Caie <^ Ship-aToney. [lOtB
RDd 29 Ed. 1, m. 10, hoconlrBcta forhiaBMpj,
and ihej go at his chaises.' P. T6, Ed. 1, Rot.
35, RegiDftld de Grej, vrhen the Scoti eater«d
the tbpiom, he v/m commanded (o bring sea-
men oat of tbeir counties, and he durst not
iritboui fuauey ; and tbereapon be had raonef
out of die exchequer.
But the answer was, Thia was fur Scoiland.
— For that no doubt tliis war was nt home, for
in the 90 the Scots hnd entered the kingdooi.
Br. Triu. 33 Ed. 1, RoMi.'
I Eonie now to Kd. S'stitne; there is not
much wiiiut UB, but far us. Tlus I shdll ob-
serve, that the first writ: that went out was 9
Ed. t. It IB true a Mandamus went out for
thippiag.and against an enemy, and for defence
of the Lbgdom : but how i Not a ' Mandamus
' firmiCer unungentes,' nor ' lub piena forit-
' fucturs/ hut a ' Mandamus rognntea,' and
the means of compelling ' quatcnus bonorem
' nostram et salvationem vesttum diligitis.' So
— -- - hot* the coune of the law altered in
all practice afterwards. And as a law ii law
before practice, so it is law agaii»i practice ;
Eet benuie rnctice maj be an expositor of
kw, especially where the words mat seetn
geaenl, I shall shew from age to age, that the
aabjecta without their content could not be
From the practice of the kings themselves,
•ren in all ages, that on extcaordinBry occa-
nons tbey have resorted untA parliaments ; and
when th^ could Dot do good by that, they have
made many borrowings, as appears by the Par-
flament-RoUs. What other roui^ej they have
Iaken,yourlords)iipshaveheard upon the Ibrmer
argnment. And when the king.received tliese
supplies, it came voluntarily, and with protes*
tation, that those things should not be drawn
into example. , •
I shall gf! now to the practice of the subjects
put First, I shall go ai high as the Saxr'
', Tbatof Danegcltdid beKinbvi
consint; and in the veryLaws in Mr. Lambert,
it is said ilaluCtM ell. Though it always did
not signi^ a statute, yet when it was writtCD
by one that knew the laws, and writ of the
laws, it mast be so taken. Titbutiensis taith,
«s it was the act of the king, lo it was the
petition of the commons; ' Statutum est a re-
* gibus,' still the king. It is strange in that
lime of Echclred, wLen Danegelt was so great
and common as it was, the subject being easily
drawn unto it, that the king ilioutd not ask it,
when he might have it for asking. But this
Danegelt being raised by Ethelred upon emer-
gent occasitinB, as it was not like to be aln'ays,
•o the provision was not for all times. After
him came in some of the Danish kings, and
they continued the DauegelL And what be-
came of those that wete the collector of the
Danegelt between Ethelred and the Confesoor,
doth appear in Huntingdon, and how the peo-
ple did decry it in general ; then it was laid
down ut gratiittiraum, as appears in Ingulphus.
Edward the Confnsorhe laid it down. At
the Conquest, still they go on with the Dane-
gelt. It was part of toe terms made by the
Kopic with several kings, that it shonfd be
laid down: and king Stephen did promise
to by it down; though notivithstnnding. they
did now and then take it up. In Hen. S'a
time yet still more complaints, and that was
left out of the charter of king John.— The use
of all this is, That though there were a practice
under pretence for defence of the kingdom, yet
tlie people did deciy it; it was not such a
practice hs could bring in a law.
When Danegelt was thus laid dairo for the
^me of king John, Hen. S, and Ed, 1, in
which times practice for shipping will not be
material, for in all those times the very ship-
ping itself waa decried, pari' '35 Ed. 1, there
the very charges of the subjects for shipping
were the complaint, the complaint is the thing
I am upon. After the 35 Ed. 1, and the sta-
tnle De Tallagio nan Concedcndo, the course
«f these proceedings did alter ; for before in
Si Jie Km forth writs under a great penalty,
that ti
I cpmc to Ed. 3, for I will hut touch upon
every time, and offer but one thing to shew the
practice in it. As I find a statute in the !>»■
^nningofhis reign, concerning provision made
for wars, so I find an execation. Rot. Scot 1
Ed. m, 8, there went ont two writs, and they
I were concerning raising of shipping, and in
Et of the Scots entering that year. Hiis
I>put it for, to shew that upon that occa-
in 1 Ed. S, soldiers were paid, although fur
e wars in .Scotland. It doth recite that the
Scot! had entered tlie land that year, and did
make Auther preparation ; and if they coald
not have their peace on their own terms, they
would proceed. ' Considcratia ttiam peticulls,*
for it viavia arliculoncrasitati$; he irveih a
command that there should be ships, but it it
~ ' mandamus rogantes,' nothing at all by
impulsion or forfeiture'in the writ, ' sicut
' honorem nostrum.' It appears by the writ,
that he said, he sent money at that time for
the victuals for the soldien; and this very writ
was ' pro salvntione regoi,' and tbat we could
not be safe without shipping: and this was in
• pure and innocent time.
I will nut sav, that to all the actions of Ed.
3, he uever broke this rule ; your lordship know
what wars he had, and what necessities, and
what those necessities brought him to; but ho
was so far from justifying of himself as it ap-
pears by Daniels History, tliat he sent to th«
archbiAop of Canterbury, to pray for him,
and desired the people not to think ill of him
for laying those charges upon them in case of
necessity. 19 Ed. S, Rof Ahn'. Ynur lotd-
shins shall see upon that .acknowledgment, how
he negatt to alter his course. Parliament KoD,
13 Ed. 3, though he laid charges befure now,
he calls a parhament, and desires supplies for
shipping that way ; and that acknoitlcdement
13, will antiver home that fatuous year of 10
Ed. 3. — Next, m; lords, to sbctr the decrrtng
of the people in this time of shipping itself in
the rolb.of 31 and SI Bd. 1, there the p«opl*
KKS] HT ATE TBIAI£,UCn. I. lesL—TlielCmg againit John I^ipJai.etq. [1004
Mid thejr weri- not to bear the charge: fo it ing of « irea^irer ; tbe;; cnUed it anlifxiu im.
And il was 5 £d. 3, in a parluuDent, but n~
pealed 15 Ed. 3. And fur Budent land, of tike
crDH'n,. ihey Here doc devitable out for that
reason : and ihat iiuoe thonld buy the land
of die crown, for it was DOi alienable in that
0 practice, fur ttic cumtnon^ did decry it.
Tbat for Ilubbetlers, ibcy were at t)ie cluir|e
' of tlie couuty before 25.; but that iliey were
corgipliliiied of in pailiument, wherein the ita-
tute ol ?5 Ed. 3, .was laade. But all tbat I
aim iitia this is, nhntcvertbe cmicrary practice
was, to out>bulance it by the contrary opinion,
and rlaiui of the kiiigdum; and the pructice I
Iiupc: shull iioi be able to make il hiv.
1 come nuw to (lie lime of Kicbard 9, for bi»
time I shall reineinbcr but uue, Tr. 7, Rich.
a, in. Iji'deconttibueridoaj custodian! maris,'
there is a recititl ul' Oaiiegelt; and Uiat tbc
subsidies that (he king liad were not ^ufGcieDC,
and ibcrtture ctuum.iuded un aid, but to do it
grataiter. I do observe, that all ship-wri
end 111 die lime of Ed. 3, one or two perhaps
may be al'ier, and tberct'nre I do end nitb the
practice r>( thoie times j but from lbo9e times
dowuv?anii (0 Ifcn. 8, this was offered, and
uot denied ; That tliere are several records,
bow the kiii^i of England, both aC sea and
land, did buar the char^^e of defence ; and oil
tlie auswer was tliat it doth ool appear how
the kiiii> dotb raise ibe raoiuci.
For the time of Hen. 4. 2 Hen. 4, Parlia-
nicnt-Roll ; a complaint of the commons, of a
cammiiiaion for building of gnlleyslbr defence ;
And their complaint was, tliat it wis done
without consent of parliament, which ou^bt not
to be done; and this commisaloD Is r^ealed.
This shevs the decrying of the subject, and' that
tbe practice hath been, that the defence was at
the chaise of the kine.
I bare thus iiaishcd the n^alive pan of the
argument, that the subject is not compelled to
find shipping for defeuce at tl>eir own charge.
NeiLifoTthe positive part, tbat the charge
boilL in cates ordinary and eitraortlinary 1&
butbe king, anil tbat by the common-law j and
that the king bath provision ahd cousiderutioD
My lordBf for provisions regularly, whatso-
ever estate IS in the king in tbe potiticc«pacicy,
is in him as iter, and not in him in liii natural
capacity ; and what is in him so, is for tbe
benefit of tbe kingdom: and that hath ever been
the ground of tbe acts of resumption, and some
of resumption made by Hen. 7, where lands
were aliened by bim, he made a resumption ;
and those nutny privileges tbat tbe king hath ii)
him, ure ns Kex in his politic capacity. All
nliicb caies ate put together in Calvin's case in
the 4ib leyion. And not onry in England, but
. in all Christendom, all estates in princes are
Iteld for tbe benefit ofthe kingtJom, as well as
for themselves ; and that Is not denied by king
James in bis answer to Perron ; he would have
it absolutely to be to lliat purpose. All that is
to the advantage and honour of tlie king, is for
tbe benefit of the kiitgdoni.
My lords, from the consideration ofthe in-
terest of the kingd^ in the estate of the
prince, the parliaments have so often offered
their service to tlie king : And the parliomeat
In fonpcr times did require a band in the nam-
My lords, in the form of our government,
the ^ng in tlie supposition of the Taws bad ali
these. By tbe books cited by Mr. St. John,
"11 were in the crown, and being so, they wore
for the service of the kingdom ; a nd that is i be
reason that all land is held immudialidy or me-
diaiely of the king. As a lord of a manor,
when he hnth a circuit of grnund, heUtts one
part to one man to plow in knights-service,
uud part lie keeps for himself. Su the king
when all was in bim, be disposed of some for tbe
service of the kingdom. Hence ariseth ilie te-
nures originally. As they kept in their hantls
palaces and demesn, so for public service they
made distribution of certain lands lur public
defence; some by Knights- Service, some bj
Scutago, some by Cornage, and some for Cas-
tlr-guard and Grand Scrjennty, all for ibe ser-
vice ofthe kingdom ; and tenures per baraaa-
eium, which nas an eminent service, as appears
by the books of the Knights Fee; Ectiy Ser-
jeiiDty for meaner offices, and Graod Se^eanty
lor greater olHces. Divers lands were given to
find ships, as in Dootosday-book, besides the
Cinque-Ports, .which were to find li certain
nuuibcr ; and so tome inload touiis did find
ships, but ban? As by tenure, nut generally as
Subjects. And though Mr. St. John did urge
one or, two precedents bj way of example, yet
be said not there were no more.
Mr. Solicitor did give an answer, that all
those come out of the estate): what was that
charge to the public ? — It b true, if the kinj
bad that for himself orignnlly, be said well ;
but if it was in him originally pro refiiw as welt
as for himself, then it is otherwise.
But it batb been said, wliat are a few men,
or one ship ? But it appears in Doomsday-book^
the king bsth a great "av^. Tber» •tere
G0,000 Knights Fees in the Conqueror's time :
and though divers Eerjeaotias are turned tnta
rents, yet the revenue is the same. I shew it
for ihia, that there was a provision made in
the institution of o«r frame of govt^mle□^
but for (lie guarding of tbe tea mora partico-
The king for the guarding of tbe seat bath
■11 the naturul prolits thereof; as all great
fishes, whales, sturgeon, &c. and all other pro-
fits ofthe sea, if tbe king would take them;
and so letters of marque ; and though some of
them are got into the subjects hands, yet origi-
nally tbey did belong to the king. So tbe old
Customs by tbe common law, antiqita consttt-
tudo : and so holdeth sir John Davies ill the
ims of Irelani^ So Prices and imposi-
tions are for the defence of tbe sea. So
Tonnage and Poundage, which wB) originalljr
granteil for ordinarr, but oftentimes upon
emet^iit occatioos; it appeaiv it was |rkutc4
1005] !TATETRIA1£, 13 Charles I. i6S7.— in iht Case ifSh^MontTf. [1006
pro sahatioite regm, acd nut grnnteH amongit
other tiiinp, but by iUrlf. But in laUcr
time*, wben it wa* sMiled upon the piince
far life, then it nai for extraonliaarr de-
fence, and to h«re monej in nadiness for nn
instant occuion ; for it is &aid, in the verj
giant to king Jnnies, that tte king jaasf not be
mtJiotit money; and therefore, towards bis
charges upon an instaht be must have it. And
though it was granted on particular occasions,
jet that b enough that it wos granted on great
occasions ; and ibis was granted out of their
love to him. The words of the act 1 Jac.
speak of a sudden invasion ; now nbether tills
. b by sea or land, it is general.
Hy JurrU, Ishall now upon the whole obter^e
vhat I have ninde good, either upon Chose ge-
neral stBtutEs, that tbe king sball lav no chai^,
or rather by the boots, that the ibg CHi.not
cbofge for little thmgi ; or upon the practice
of times, wherein every time the king halt been
at ihe charge, bbJ when it halh bcoa on the
subject ihey have decried it. How jou, my
lords, believe it in poiot of right, t leave it to
jonr judgments.
My lords, 1 shxll go on to the answer of Mr.
Solicitor; I have made a reply to all his an-
swers to ourpoiitive part. It remains I shoold
offer an answer lo his positive part. First, I
shall ^ve a general answer to his whole argu-
nient; for il the ^ ■• ■-
r, the argument
regni is in the case notirithstandiog, I shall
arguo over, nnd examine tlie nature of his
I iun sure he had none from parliament, ei-
iheractor dec! u rut! on of bnlli bouses; what
there is, is against litm. The answer of the
king, with the judpncnt of both houses, is a
main thing in point of right. I did not receive
any legal material record, but that of the abbot
of RohPrtsbrtdge, nor any book-cases in point,
where it is said tbe king slialt charge, but tbe
books 13 Ed. 4. I »hall answer these first, prac-
To he"in with the case of the abbot of Ito-
liertsbriJge, which was opened by both sides.
It WBS35 Ed. 1, the abbot had land agisted
lid cattodiam mnrii ; and in an action brought,
the abbot pleads that he had found a hofse for
the Fame land. Here i^ an nrgliment, that the
abbot doth admit that the king anight agist
pd rtiitod' marli: now if that admittance In
llib cTisc sltould be of any authority to biter
yoar judgments, I shall leai'e it. The abbot's
counsel did nn more than n discreet counsel
niiuld have Hone. If an action be brou;;lit for
wnrdt, and it appears the action will not lie,
^That then? If the ahbot had n plea that he
was Bgi.s(ed to find a horse, what reason had be
to put hinificif on matier of law with the king i
So the authority can be nothinc; against us ;
and at the best the case did rest there, end
went no fuitber.
For the book-case, 13 Ed. 'l.where it issaid,
that the hing can lay a charge, tbat book is
with reference to loll ; aiid such things are no-
thing to our* main cise ; and that oool: will
prrive strongest against t^e king. Tlie main
case was concennog a w^n office of mcasurnge
erected with a fee: this was pro bono publico,
yet an action brought ; it btlgan in 11 Ed. 4.
Then camelb tbe parliament in 13, and this wo*
complnined of to be against die statutes, that
proviiie that no taxes should be laid. The 3n<
swcr b, let the statute be observed.
To the case of toll, which for common ne-
cessity to maintjun traffic, and becstise there
iniist be a power in suniebodj, and without a
fee not possible to maintain the charge, it i*
allow erd It may be done by tbe king; but in our
casb here is no common neceiiity, hero is «
thing that may seldom or never happen. The
ground of granting toll is this, because it ii
pro bono pvbiifa ; yet if not for common ne-
cessity, the king could not do it. — Neii, the .
toll is not so mnch a char[;e, it is giiid pro quo :
in tlie 5th Report it is said there, that it q no
charge; for the benefit in Ihe thin^ itself will
quit ibe charge. Again, toll is but infer mini-
ma™, this of weight ; and though an nrgnment
will hold a minari ad mqjvs in the neeiitrve, be-
cause a man cannot do a les.o, therefore not a
greater; but not in affirmatives, because he
can lay those, therefore gi eater, nun tn/ailur.
Next, lor toll ; noman is forced to pay toll,
because noman b compelled to come to t);e
market ; if he will come volunttiry and receive
tbe benelit, then iliere ii reason he should pay
it ; bat this is not our case. Lasily, the l»w
doth allow in this necessity, in case of toll, to
the king a, power to grnnt, jot the law doth
not leave the king absolute judge of the guon-
iuin: for if the toll be nnt prop urt ion able to
the bene6t, the patent is to be avoideil, as in
case of n fine nnccrtain. Now, my lordf, in
onr case here is no judge of the pn>portion fcnt
the king; so Ibe argument is thus : If the taw
admit not the king to charge but in common
necessiiy, then not in ca^s that may happen
bat seldom or never ; if not in small things,
tlien not in greater.
I con.e now to practice ; and for practice,
where there is no opioien, either for records
or books lo warrant it, it is something weak,
especi.-Ulj when there is no indent occasion.
For the practice, I shall give this general an-
swer : if I can satisfv your lordships by autho-
rities ofparliamentiKnwilieUw stondeth; ihc
contrary practice, eilher before or after, is not
ninipriai; and for that, I must leave it to yottr
lordsbi{is.
Your lordships have heard us read the words
of ihe acts of parlinnient, find explain our
meaning thereon, and we have brought ibem
home to our case. It will be hard to make an
exception if the act be general. — For, my lords,
the practice, it consists of two parts. First,
arrays of men. Secondly, of shipping, and for
shijiping; ' denavibus coii!>regaiidis,' or 'munt-
' endis' and ' inveniendis.'
For practice of nrrays, I shall lay tbem by,
and givetfaemageneral answer: fortherewcrc
1007] ^ATETiaAlS,liCa.L l6S7.~'IhiEiigagttiiutJolmi£tmpden,aq. £1006
very few, \T «ny, tbai went from the faeginQing
ofllich. S, bul aaly to see if tbey be armed, c(
pnmpti, Bud tliat ia made by the statute of
Wincbester. It is one thing to »ee Umi tbey be
mmied and in readiciess ; and another thing, aC
V'base charge they sbnll go : tbal appean not
out of Lhose arrays. There is do doubt but the
lubject, on the statute of Wincbesipr, ou^ht to
be ready. wit}i arms, and in his county to make
defence ; and upon o'ccauon he ought to ^o out
of his county, but at whose charge, that a the
question. And if those writs of ■tray were the
same with the commission) now to the lieute-
nant, yetl know nolhow; this ismy aiguoienc
in the cckse ; and so yonr lordships see that a
ereat Dumber of the arrays falls aS tliis way. —
But if arcnys had been, and at the subjr"-
charge> yet agaiust the statute; I leave it to
your lorosbips to judge, how far practice A»&
be an argumeat, — But for shipping, fur writs
' de iiavibus coDgcegnndi^,' those are nothing ;
for the matter is, whether they shall be pud
before they go, and manv of the ship-writs are
oftliat nature. No doubt but the king may
(ommand ' ad coDgregandas Dares,' to use
them uuoit octauon; but the matter is, at
whose charge they sliall be. And Eur all the
wriis that are to find ships, 1 hope those writs
nre not concluding.
My lords, for tlioK writs that are lumpftiui
fmpTiis ,' a writ, and no more, without eiecu-
Unn, a not a practice sufficient to make a law,
no more than a common evidence, nhen to
Eriive right by usage. Now whether or no they
ave shewed a general execution, by obeybg
and doing it at tlieir own charge, or money
levied upon them, 1 leave it (6 your lordships ;
I see no proof. It may be, such writs might
be ; hut that there was an eteciftion of them
■t their onn charge, or money levied on tbem,
we see no such thing. And if writs were to
find shippinj; in these times, it is liiie the mo-
nies were relumed by the (^lunlies, and so the
receipt might shew it, especially if inland coun-
ties, where nothing could be bad from thea
But, mj lords, to examine on those grounds,
whereby ^ practice must make a law : if this
charge be withiu the words of the law, no
)>raciicecan take this out of the way of excep-
tion. The pmctit^ roust either shew that was
nmon lun, and so ^tntraUt coMuetudo,
t declare the meaning of a statute hy
at cunsent ; which must be of those thut
could coDscni, and those which did not express
a disauent.
We a
though I _
yet whether he can do it ui tljja esse, to make
an exception of law ; it must be done by use
and practice ; □* to make a law pracuce doth
not make common luw, but as it is a proof of
'v ail laws are made two
ways.
Firsl, By express consent of parliament
teeondly, by um, from time to time, wh^cby
it duth appear this was excepted, and thf
becometh ■ common kw : «o a» still, if on lue
doth make a law, such use it most bf as doth
prove a tacit consent, — Next,> as the use must
bind the kingdom, so it must be general over
all the kingdom ; it is not enough to be at soma
times and seldoo), but it must be temper eadem.
And, lastly, it must be reasonable.
I shall examine on these rules, for these are
undoubted rules to examine a Jaw by, the writs
ofllen. S, Ed. I, and Ed. 3. In all these times
the practice, as to this, will uot make a lu ;
here will be no proof of a consent. — First, Tor
Hen 3, to 38 £d. 1, here tlie subject, as before
the cotnplaints,' ithich begot the charter of king
John, was upon tlie charges imposed on tb«
subjects; so afterwards, until [he 35 Ed. 1,
the law of the iibertv of the subject was dM
settled : fur though king John did piuyl hi»
charter, yet the pope did dispense with him,
and he broke it, and so it rested till 9 Hen. a.
So all this time the subjects of England were
under power; and whatia that lime be might
do by duress, was not by coasent. Then,
9 Uen. 3, he made a charter, yet from lime t»
time he broke it, though lie desired to be ex-
communicated if be did it; and so it rested
until 25 £d. 1, and then witli much ado was
gotten a ConGrmatio Chariarum : jet this sis-
tisfied not at all. Till SB Ed. 1, Mag. Cba».
not obseri-ed. 1 could shew divers cases point-
blank a§;Binst these.
Tiie stntuU S8 Ed. I, saith expressly, ibat
this charier was not observed ; and It w3s once
a punishment for those thut were the breakers
thereof. Now when ads of parliament declare
that the law ofthe liberty of England was not
observed, I shall not need to shew any reeotd
how it was broken ; so that all the practice in
Ilen. S's time, though much, yet that will not
serve the turn ; fur that government was more
of furce than law. But Ibr that of Hen. 3's
time, I shall give a further answer ; the vmj
courts of justice were bhuC up, thenitwasw
JlagroTilt bello.
And for Ed. I's time, all [he maiu ones con-
siderable were imntediately before the making
of ibat statute ; if rightly apprehended, tliey
did particularly occasion that statute; sg the
subject did deny it, and it is a dis-asaeut.
Afler 38 Ed. 1, little considerable ; and Ed.
1, wlif n he made fiS Ed. 1, when the charteia
were confirmed, yet lie had his Mhejarecwow^
which did "not please the subject; and after-
wards, notwlihstandiog he made some grants
in parliameut, yet sometimes he did revoke.
Your lordships kuuw what u great renanciatioa
he made; butaisoineaf ourustnriaui obserre,
when he had occasions for moneys he did grant,
but otherwise did not ; so that in all his time
the su^'j^'^U did not consent, but as much ai
they could, did dis-assent i and in [he 3^th,
you see how the practice did alter for com-
mondiiig of ships.
Next for Ed. 3, ibr hi* time, we Be« bow he
went. In the beginnini; of his reign be sends
bu[ aman^nniu rogantu. In the end of hi*
reign, whether bis gorernioeai was mure of Uv
1009] STATE TBIALS. li Cajoist I. iai7. ~iinkCa»e<fShtjhMmei,. [1010
ihan power, 1 kave t« yeur lordships; that
itlie practice thnt way, if it doth cuinc tiome,
is not sutlicieat to make a law, who wus under
will.
. Next Tor Ed. 3, for bim in his best limes,
you see how he weui, be laid noi the charge on
the suljf ct at tbe first ; altcrwards there is no
Bge nherein tLcre weie so laaiiy cumplaiols aa
in his time, from die lint lo ihie last; and not
onlj in this of shipping, nbich, hi often a* it
' wan, there waa still cumpiaini, hut in imuosi-
tiuA on merchaals, whereupon lurd Latimer
woi imprisoned : so that in point of chiir:,e, the
lubject did iiirorce bim upon it in time of
oece^itj. Su that in those timet the practice
will not be any argument against us.
That ol' 10 Ed. 3, be confessed that he had
laid too heavy charges on the subject, and did
ask forgiveness; soliere was no consent, but a
■evcral dissent by their several complaints.
Jf lid if I tiike off these ihree Icings reigns, I take
off all the force of practice conceniiuEshipping;
for from that time afterwards yoti will find rery
little, for w^iat cometh afterwards is but for
matters of armys.
The next thing is, that eveiy practice that
must bring in a law, ntibt be cousisut and con-
tinual, soiling tQi^ether as may bring it into a
custom. — Non out of n hat your lorilships have
heard, if yau conceive in the times of those
three kinss, thnt they bad one way and ihe sub-
ject another, then there is no constant practice
to lay it on the subjects: And for Arrays, I
conceive them (o be no part of the case. — Aad
fur the nent; if practice make a law, it must
be general through the whole kingdom ; far
that is our case,' we are in an inland county ;
uad obserre how few writs we have tliat went
over the whole kingdom : Nay, have you any
that proveth it indted ? That (bey went to some
inland counties it is true, hut that (hey went to
&II tbrouehoiit the kingdom, you shew not.
Now it you will have n practice to bring in a
law, joumast not bring your practice by pieces;
Another part : for that in one part of tlie inland
counties alone will not be JustiGable, for that
was to lay a charge on (he one, for the main-
tenance of the whole; and that is against rea-
son, and the reuaoD of this writ. So to cliarge
tbe whole kingdom, you must shew tliey went
over the whole kingJoin, and were obeyed by
the whole kingdom; for obedience in some
pans, will not hind all, so once or twice nill
-not do it; for the wrils that have been pro-
duced, many of thehi went lo the sea towns
Next, mj lords, admit that the practice had
1>een constant from king John's tune dovvn to
Hen, 3.'s, so to ibis day; under favour, 09 the
cMse stnndeth, your lordsliips could not find
inch a practice as could now introduce a law.
The custom, which must be uf a manor,, you
must not shew the beginning of it, that within
time of memory the tiling was not so. True,
if tlie lime had been long, and I cannot sbevt
(vhen it hath not been, that is time out of mind.
VOL, III.
I'o examine this upon tlie rule ; it bath been
said, tliat irom the time of Tien. 2, Uanegelt
WHS taken; True, it was taken, de /iir/D.bue
uot dejurr. The subject wa* not at thai time
charged boifa with Dane);elt nnd shipping too.
Then our course of charging ilie subject to find
shipping, must begin lince ibiit time.
Ijui perndventure it will be said, sa ur Henry
Spelman in his Glossary, that when Dant-geIC
went down, tbis oiber came in. And'perad-
venture it will he said, this is enough to shew
this, b^un, though but in memory; then itii
but to see upon what warrai'.t of law this be-
gun.— If Dim^elt had not been tegnl, then this
to come ill instead of that which ww not legal
h not sufficient. Now for Danegelt itwas not
legal, and so Jaltil Jundausenlum ; if it had
been legal, yet uot so pursued in tbe course us
is le^nl, so that there is no ground for it on
right or wrong. That Dunegelt, when it weui,
it went over' all Ihe kingdom, and in a propor-
tionable way to all ; yet these writs for shipping
times U) some luland towns. If Danegelt wera
nn ti>e land, and certain, this is on ihe'person, .
and uncertain; this respects boib lands and
goods, the other not. I'bere is no such assu-
rance of eijunl chnrging in this, or in the other,
if Danegelt had been leg^il; yet uhetber ^it
coming in ijeu of Danegelt, being uf a far dif<
ferent unture, he legal, 1 leave it to your lord-
ships judgments.
Next 10 examine it upon anolher reason,
upon the reason of the practice. If the prac-
tice wfent over the whole kingdom from time'lo
time, there was the more equality ; but if tlie
practice went over the kingdom but by dL^reej,
sometimes to one part, sometimes to inniher,
though over all the kingdom at times, yet this
is not suthcient to make a law. For that act
which is unreasonable in it^lf, and not agree-
able to jusiicc, will never make a law : for a
law will never arise out of an act illegal. Now,
my lords, wlicn a charge is laid upon pans of
the kingdom, ivhich the whole should bear, it
is unreasonable. I will not deny, but in
manors, where you are to have a custom, some-
times on one piece, and sometimes on another;
this may be good, though it goes not over the
whole manor; beynuse in this act there is
nothing against justice, for here one pian doth
not bear the charge for the whole; but it it
otherivise in our case. ■
My Lords, I shall go further; as for the ii»-
land towns, so for the sen-towns, we do not find
a general practice of all sea-towns together,
sometimes to one, sometimes to another; if anj
to allj^et not'lo all ullcntimeB.
My Lords, admitting armys would be mate-
rinl in tbis case, as I conceive Ihty will n^t ;
yet under favour they will be no precedent for
the defending of the sen, the cose dolh differ. — ■
For though the king be lord both of sea and
land, and hntb in them both the sole dominion;
yet in the sea he bnth the whole property, and
in a manner all the considerable profit and pri*
vilcge; the subject bath but the passage of tlw
3T.
loll] STATETftULS, I3C11. L \6n.~neSMgogeAMMmBampdo>,*»^. [IfAt
Bca, and the minina 10 take fish, not coDsider-
tible in paint of benefit : But for the land, that
in our own, and the laud of the kingdoin ib the
bouM of ihe kingdoiD. As for the chaise of
the liuid 10 find shipping, there will be a great
dcHl uf difference hetweeu sea-towp) aad inland
towni; As iboi* that lire in nea-tonns are in
mure danger from the sea, so they hnre more
profit and privileges; and that is the reason
that in the parliaineDt 13 Ed. 3, the sea-town»
(ihould do it in regard to their profit and pri-
Aad for the command to find ships, the po-
■ilire law ii to make those to fiod ships which
•rs cliarge4ble, as jonr sea-towns, and for in-
liod towns t« ^nd arms; because both are not
fitted alike, there it no reeaou that the; should
be cliarged alike. Upou this reason is the case
of Bevert]! put betbrf, 3 Ric. 3, where the com-
EUint is, that' thejr are ciiarged tor shipping,
eing a drj (own ; ihey ssj thej were charged
indtbitl. 10 Ed. S, Shoreham, thev plead the;
, never found arms but shipping, and a good dis-
chaije. And in Mat. Paris, upog wars with
France, the «ea-tonna complain and desire
help; to that the burden tie» on them, if on
any. My lords, I have gone over in a general
way, at welt as I can, and endeavoured (O ao-
•wer the practice; to have gone over all m pur.
ticular would have required longer time than
jour lordships can spure.
The reasons now only rest lo be examined;
lor if nu full Bulhorit;, nor sutficieot practice,
reason alone will not argue against a funda-
mental rule: for neare not now to examine on
reason what it Gl, and what not, but to see
, tthat is ()« truth.
The first is, ibat ' talus populi auprema lei :'
the queition is not, what we are to do by ne-
cessity, but what is the positive law of the land f
The question must now he as before ; what
power is in the king, and did our forefathers in
thai time "f peace and government leave in the
croivn, nut in case of r.ecessicy and public dau-
K*r; "hen, with them, ' silus populi' was ' su-
' prema lex,' and upon that thjey riid ground the
rule of government? In this case, whether or
jio, in their ronsiderntion, they did concei> e for
the public good, to leave ibe power in the Ling
gr not, to lay a charge on the people ; there the
rule came in, ' salus reipuhlic* supretnn lex :'
and that winch ihev looked on most, was the
benefit of the muFtituHe. So that now, my
lords, it is not to dispute, whether it he
iMiier or worse, but that it was. And to
thew there was no such great neceuitj at
can couiitervHit the possibility of prejudiee the
Other way i if there do come such a danger,
then tlie subject ia at that time under a law of
pretervation of life; and all which makes the
■ubject HI willing 10 obey, at to submit '
This
t of *
bi|ther force than any putilive law can be. But
llduit Ibat this cease in this case, and all posi-
tive Ibw- i'iI priipeny yield to the law of necet-
■ity ; yet I admit nothing, though I might adnit
BWCh, utd not prejudice the ca«e.
Utough DO positive law doth charge, yet ia
case of imminent danger, if I ehouM say my pri-
vate property is become public, it i* no Dii>-
chief, for >o it is in some caies: fur in this time
of imminent danger, the king and snl^ecit arc
under a law of absolute uecesiily, end pnblic
safely. In all human reoton, wtieu the danger
is in proxima putentia, we may prevent it ; lEoa
if another man's house be on fire, mine may be
pulled down to Kop it: so that we may tte by
what grounds we do go in case of abanlute ne-
cctsily. If tlie king doth command any ihing
coucemiog the propertj of goods, in respect at
danger, the eieeutiiin may not be by any poei-
tivelaw merely, which in luchcaiet do cease in
JvroTt belU; for those are acted hy fiimialioet,
aaA intrr arma tiknt Uga. And in (hesecaaca,
as the king may command my pr-iperty, so mkf
the subject command (he property oF another :
the books are so, 8 Ed. 4. Fur hindering tbe
landing of an enemy, bulwarkt maybe boiTt on
my land without consent. So the power is not
only in (he king in these cases of necessity, hot
in the subject: and the hooks say not that the
power is only in the liini, but I can do it, and
the law of necessity is the warrant.
Then, my lords, it resieth considerable in
tliis case, what thiill be snid lo be a time uf ne-
cessity. I speak still by way of admittance, for
I grant nothing, — It muit be in a danger aam
acting or in proiana potcntia ; as fire, thougfa
not burning, yet ready tii burn: that is, ibei*
must be a war, furor belli. Note, That whco
the king makes proclamation of war, or ttw
king is in the field ; and tliat indeed »as not
Mr. 3l John's nieaning, it was taken fiirtlier
ilian lie meant it.
It must be in such a danger, when this power
is of necessity to be used, as in ewe of fire;
there i^ust not only he tear of fiie, fur on*
house must he fiist actually o'n fire, belore the
biiute can be pulled down, but witlial mch
a dangfr, that if tbii be not polled dowQ,
the other will be lost i and a> in caie of an
enemy, a auiject, out of fearof aaeilemy, <»n-
nol build a bulwark on anotlier nian'b Imid, bat
when he is a-cumiog. So that none of ihes«
cases will match nurt. The properly yiekteib
not in fear of danger; but sucti a danger, at
help niust come in Hunt out nnnfMuw. "Tbi*
time is not when the kioit will tlnnk there i*
occntirin to exert this power, u in the case of
1SB8 TboDgh (he queen «■ '
ifiiible to be done, m> ihey did land; but
could not ciimmand tUem to burn their com
before an enemy did come.
Your lordi>hi|i» know (he king may csmmand
in case of danger the destruction ol all saburb:,
rather than an enemy should come in them.
But if there be a fear only of wars, if the kinf
should command it, hi>i> far thai iaJBttiSable,
I leave it to your lordships jndgmenit. All
thil diSerence appears nut of iba cmc of iba
Gravesead barge, DuOeild't caie, J9 Jac If
there be a ftonn, or « Ink ia a ^f, %\M Ibf
1018] STATE TRIALS, t3CHAU.BiI. 1637.— m the Com t^Sh^3ltmy. [lOU
danger be actual, it is jiiiCifiable for tbc mailer
to throw out the gooda ; but if be sees a cloud
ari^, and out of (ear of a storm he Threw out
the Kooils, I [Joubton a jury whicli way tbitwill
gp, with the bargeinnn ; but if a iionn do cuiue,
or k leak llJTiiiK ii>, in ihnt cms the htrgeniaii
may do it. So you ae« upon wbal law my pro-.
pert; yielrJeih. Tlint position generally taken,
M it u Mid, may be of a great deal of conse-
quence; for it doth tiot rest there, solely upnn
Now,
liberty and person cease in this lime of danger,
wben the danger was but conceited and not ac-
tual, that I leave to your lordships judgments.
And if that rule be general, then why not the
other f So we may see the diSerence from our
caw; far in that cue there is no manner of
loss to the subject, for he sliall bave aliowniice
for his ]ot», or make suit to tlw parliament, and
tbey can recompense iiim ; for what is taken
for the public good ii but borrowed. As in
caMC of thipping, if my goods lie cast out to
•Bve the ship, every one of the ship is to bear a
•bare; so in our case, either the kinj; must do
It, or die parliament ; so there is no pr^udice.
So upon the whole, m; Biuwer is. Admit the
rule ot ■ Salui populi suprema lex;' yet the
law of practice doth not yield, till there be an
•Ctual enemy, or jiagratu beilum. It is not
enough that tbere be but an apprehension.
Tluie were divers other rensoos urred, (but
those two of ' Stilus pupuli suprero* lex ;' and
of private property must yield to public safety)
were the tnoro'iunei cf^ciifeiy (tie other were
but a pari el • $iniili; and all those I shall
pass over which were only for convenience) as
the graatiug of toll, or a corporation to make
ordioance tpr the good of the corporation i all
tbese will Dot come borae m the manner. My
lords, JD f\l these cases ' a minore ad mnjus
' nnn valet, ttei(Btivum valet.'
But (here are only tno reasons urged, which
require an answer : The trust that the laws put
in the king in greater matters, viz. the shutting
ofthepo'ts; and the Droit Royal of ware and
peace. For the tbulting of the ports, there is
more dilTerence in point of prejudice of tbe
liiog llian the lubject. The king cannot shut
the ports but tu his own pr^udice. Again, the
putting of the poiU witliont cause.of necessity,
tbe king batli tlie loss as well as we ; fur By
that he loteth his cusioois, and by shutiiag
them he can gain nolhing at all. And besides,
tiiere is im law at all that hinders him from
that. But there is alaw saith, tliathe>bBll not
The neit U the Droit R.yal of wars aiid
peace. It is one thing to bbj, iha king can
make war ami pence ; annlher thing to say, be
<UD charge. In war and peaca the king is
•qonlly charged xiih the subject, nay more;
and for those things there are no threat reasnns,
but tliBt in the first form of government they
might bs ndl suffered. For tbat caiue toocK-
ing tbe king's power over coinage, there was ■
necessity to counterpoise die like thing in ano'
Chrrstnte; in that case the ktug loð, and
we lose. Tlie king may dispense with penal
statiitrs, and make them as none. Doth any
laws say lie shall n-.tt do it? The renson di^
fereth in thai case ; there is a common necessity
ihat there should be a poner in somebiidy, for
acts of parliament are but Uga tcinporu. It i*
one thing for the king to have power in point
of favour, and another thing in point nf Charge;
90 in case .of purdon there is no hurt if be
doth pardon ; God forbid that he should not
have power to shew mercy.
My lords, there are in tbe case tn-o poin&
.more tvhich I slinll move. Whether or n6,
admit the king could command the subjects ta
find ships, he cap give power to the sheriffs to
makelbeaisessmentasmtbewrit? Theground -
is upon this, that in all cases of politic charges
the law takes an especial care to make an
equality. In parliaments of old, they were al-
ways careful to make provision tliat way, aa
upon fifteenths anil subsidies. And in Dane-
gelt they went such a way, as there could ba
no inequality ; they went by taiing of bidtS.
Now if the law doth make this a Irgal way'&f
iharging, it allows the like way (or a;
that is allowed in other eases, tucb a way as
wherein there can be no inconveniency. NoW
how a sheriff hath tliat knowledge to lay it on
men's estates and lands, I cannot tell.
My lords, not to leave a power in tbeVing
to lay an arbitrary charge, hut in the sheriff to
lay more or less on sn^ man; (hough the taw
msy truft the king, yet it b a question, whether
it will trust the sheriff. Nay, I ask if tbe she-
riff be an of&cer of law in this case ; yet the
much by the sheriff. So I do conceive tlipt
this is 0 thin; that deth properly belong not to
the sheriff, he is not an office; sworn, aiid ,it
restetli not only in the sheriff, but the under-
sheriff. So that if the law duth trust the kii^
!et whether or no this be tlie way to charge it,
leave it to your lordships judgments. If a
hundred be charged, they have ways to lay it
on themselves proportionably.
The next tiling is this : Admit a levj may
he well-made, wbethor the money thus paid
may be brought into the Exchequer, by a Sd.
Fa. I do tliink that this is the first writ that
ever was of this kind, I do not find it regularly.
My lords, I th'mk it is bard to find where
there is a writ that commands and presciibe*
tbe manner of levy. It not only gives ypo
power tu levy, but sets the way of levying, by
imposition, by distress, b; selling; for my pan,
1 know no case can matcli it.
The First Day's Ahgumekt of Sir JOHjfl
BANKS, knt. his M^esn's Attorney-
General, on bebnlf of His Majestt, be-
fore all the Judges in the Eichequer-
Chamber, ia the Great Com of Ssii^
Moan.
.«.,, Google
1015} STATETRIAI£, JSCh.I. iOS-J.^The King i:^{aaH John lta>rg]den,aq. [1019
May it please your lordships; There was a
Sci. Fu. brougbt a^inac Mr. Ilain|>den, and
diver] otiiers, to shew cause why those sum) of
money asse^ised upon them by the sherifl" of
Bucks should not be puld and Huswered ; it
beareth tnte the 2id Muy, 13 Car. iiud u Scii i
Feci rt turned.
Mr. H. n 111 pden demand eth Oyer of the orl-
ginul writ iih Ane- II Car. and of thu Cer-
tiorari, mid the Mittimus, and of their several
return*. The wtit 4tb Aug. ivliich went out (o
provide a ship of -IdO tuos, with victunls, uien,
•mmunitioii, &c. that nrit giveth power to O.e
•herilf to make an assessment ucon the county,
and givcth ^ner of distrets and imprison inent
ill cnseof non-payineiiC. He deni and eCh Oyer
of the Certinrari, Khich consists of tivo parts;
the one to certily the sums assessed, the other
to cpTtify the uanies of the defaulters. And
tlie iiiunm'of thiise that made defaults were re-
lumed, and Mr. Hnmpdeu amongst others.
lie doth demand Oyer of the MitcimuK, which
doth recite ihe tenor of the first writ.
Upon Oyer of all these, buili of the writ 4th
Aug. of the Certiorari, Miitroius and Stil Fa.
»iid their sevend returns, Mr. Hampden hath
The ca&e that risetli upon the record h thus.
The Ling i^ lord of the sea (fur that is part of
the record) the seaa arc infested by pirates and
Turks, nhich commit depredations, and take
goods and merrhaiidiWs, hutli of the king's
•ubjects and others that trallic here, and carry
Ijieui away into captivity. There is prepara-
tion of shippinK and imminent danger, iur so
the writ r.-citeth : A daojier that the king's do-
mmion of the sea should lie lost, or at Imst di-
minished. Tliere was a fiirther danger, that
' salus reg. periclitahacur,' wliether in thii case'
the king < pro defensione reg' tuitione maris,
* securitnte suhditor" et salva conductione na-
' vium,'mHy command his subjects ' |>cr lotam
*Anglram,' by writ under the great seal, to
provide ships at iheir own charge and coit;,
•ad this do, when tlie king in his own judgment
conceiveili such a danger, as doth necessarily
require thut aid ? That under favour is the
question upon the Jlecord.
There it in this Record, nhereof yaur lord-
•hips aie judges, four writs. First, 1 hat of 4th
An![.' It Car. which goeth out of the Chancery,
for setting furlh this ship uTibO tons. Secondly,
the Certiorari 0 Mattij 13 Cirt-. Thirdly, the
Mittimus 5 MuiJ 13 Car. And fnurClily, that
of the 32 Maij. 13 Car. which is the Sci. Fa.
Tiicaecon liquid the fnuith writ, which is the
Certiorari and Sci. Fa. thi y Hre rircurnable, the
fifnt and liie ihird writ, which is tlie writ 4lh
Aui-. and the Mitthnux, they hare no returns ;
but they £ive culnmimrl, and require execution
■ball lio dune, ' prouC de jure, et secanduin
• coijsiieiudinera reg' .Aoglia fieri cOD«uevit.'
The firtt writ, which is ilie ground of this
bu'iiie>s. If sitindeth upon mo pans: a pre-
aml.le. and thp hmly uf ihewrit. The jireamhle
tliiil cohtainrlh ; firs', a dirertion; and second-
ly) the cautos au J uioCiies of the issuing of ihla
writ. The body containelh six parts. First,
the direction that is to the sheriff of the cotaoty
of Bucks, nee non unto ihc baiiiffs and burgesses
of the borough of Buckingham, and major nnd
bnrgesses of Chippiiig-Wiccomb alias Wicconib,
and ■ probis hominibus' of all the countr. Se-
condly, the motives and reasons inducma thn
writ, which are nine in number. 1. ■ Quia
* piratx et maris grastatores,' &c. That these
commit spoils ana depredations by sea, Bod
lake the guods of the king's subjects. 2. Be-
cause they carry the kiii|('s subjr'cts into miter-
able captivity. 3. Because ot the prepamtion
of shipping that is made vndi^t to inlVst tb«
coasts. 4. ' Quia pericula imminent,' &c. 5.
' Quia pro defensiune rtg. tuitione maris,' tkc.
6. ' Quia pro dcbellatione quorund' hostium
' sal agent, &c. 7. ' Quia progenitors a nostri
' reges Anglic dig' maris tcmporibus,' &c. S.
' Quia Onus deftiisionis,' &c. 9. The most
prevalent, ' Quia hoc per legem et consueto-
' dinem Anglis,' Sic. The Iwdy of the writ
contains also several mandates to the sheriA
and head olticers, ■ quod fide et leiiinDcia, Sec.
' et ticut nos et hnnorem oostrum diligilis *
The mandates are six. 1, To provide a ship
o( 450 tons well manned and furnished with
protision, and that was to be in rendiness by tha
1st of March, to cotitinue for the space of 36
weeks, ' ad proficiscendum cum nafihus nostrii,
' &c. pro tuitione maris,' Ike. 3. Tkac the shp-
liSs and bead ofliuers meet within 30 days, and
set down wh.1t sh^dl be taxed upon tlie incor-
porate toivns. S. A command to the bead
officers of those incorporate towns, th-tt widiin
their bailiwick they nmke an assestmeni npoa
particular pei'sons, and compel ihem to paj the
same. 4. A power to the shetil^ to asseas all
the rest within the county, 'juita st^tum et
' facultates.' 5. A commnnd for the levying
of tbese Jums by distress, ' et quoa rebelles la-
' veneris' to imprison their penons. 6. Tint
nopait of this auni collected shall be-conTCrted
to any priiate use ; but if any money filial) be
rcmammiti it should lie paid int<r ynendot.
My lords, the reasons expressed in this writ
might justly satisfy any man's iudgment with-
out further argument; but I shall clearly ma-
nliest tliere is no clause or practice by this writ,
but ii verified by many records, and is • secun-
' dum legem et consnetudineni Angliie.'
The question that is mads, is of a high tnui-
sceudent nuture; it coccemeth the king, both
in bis ordinary and absolute power. Whether
the king in those cases, where he in bis royal
judgment shall conceive a necessity for tlie de-
fence of the realm, may commuTid ships in this
kind ; whether by his royi"! power he iiiay do it,
or must require the aid per connniiae roariJimM
in (he parlismenl. And 1 conceive his ina)estj
may do it, not only by hii kingly prerogative,
but .jure mojeitalis. '
This power is not only ' inter preiugatjin re-
' gis. Bed inter jurv siiininB majestalis.' 1 find
by many records, that these writs bnve issued
out in alt sncce'siim of times ; in the times of
the Saxons before the Conquest : but I nevar
1017] STATETRIALS, ISChablesI. I6ir^ lie Gut ef Stiip-Mmiy. (lOW
fiorf that' thn pomcr iias judicially queitinnetl
in any courl nt Westroiniier before jiow. 1 find
QueMiuna mnde louchmg aaiewnienla, whether
tiiey have been equal; touching the kvyiug,
whether * Itliiii the warftnt of the office ; touch-
ing the ditcliBrcLiig ofsomr, hjr reason of a granl
afeiemption; but to quntion ibe main power,
whcfher the king bf his royal power might com-
mand this fur the defence ot himjelf and the
kingdom, was never dis|)Dted before now. But
hit ):raci'ius majesty, who hath declared bimsclf,
that he will ru!e his people accnrding to his laws,
tor the Mtisfoclton of the people, and lo clear
hia justice and judgment, does suffer these writs
to go forth, lu nhicli Mr. Hampden hnth de-
' marred, and to be questioned in this \egut n-nv
to be determined by jouf lordships, to nhich I
hnpe yua will give a clenr end.
M^ positinn shall be thus : that the line, as
he is kmg of P.ngland, ' pro defensione r^tui-
* tione maris,' &c. when his maje<tty in bis royal
judgment conceivech it a time of such danger,
MS doih Rrcei^nrily require tlie^'ii' commanded
in this writ, tliat he may command and compel
his sutgects ' per totam Angliam'to set forth
■hips with men nnd ammunition and double
e([uipige; and this may be done, as well by the
king s writ under the great seal, as by consent
in pariiament.
For ihe proof of this puuiion, I aball reduce
what I bave in say to tliese heads. First, ihat
this power is ' inter joraiummB m;(Jeatatis,' in-
nate in the person of an absolute king, and in
ihe persons of the kin^> of England. That this
power is so inherent in the k)n|*> person, it i<
Dot any ways derived from the people,' but re-
ferred unio the king when posiiiie laws first
bcMD. And that in this ctv<e the king is inle
judf-eofthedani^erjBnd how thisd^ingeris tohe
prevented and avoided i this is my first ground.
Thescoinit is ihii, that the regxt power is not
confined to the politic nddce, that the king
most be M eatluitTtt sitting in p.trlkiment ; but
that it liath been Always Hone, cither ' per ip-
' lum regem, lut per rrgem et concilium, aut
* per doDiirias suns, ant pei; regem,' when ho
■hall please lo call a consoltalion of.merc!^nts
and portsmen eiperienced in the service. — My
lord), 1 shall present unto your lordships, that
this power is so inherent in tM king, that daring
the time of pariinmeut, and in those years when
parliaments were sitting, these writs issued oht
by a regal power, wiiliout any aid or power
ffocQ parliament ; and thni advice was not
thoi^ht iieceswry in furmer tiroes.
3.' I shall niKi shew unto your lordships, that
this power is implied out of the sovereign'! titles
giren unto him by the common law of England.
4. Ao'l also I shnll insist upon precerieiiti ;
and herein 1 shnll desire your lordships to take
notice that these writs have not issue oat at the
first any sudden advice ; but that there was a
great search made : nV^t, by my predecessor,
Mr. Noy, ■ man of peat learning and prnfnund
jttdgment; other searches mdde by the king's
counsel and some others ; and a great numlwr
of noonU were considered of maiutel; before
these writs issned t so nothing was dona upon
thesudden; and we that are of the king's coun-
sel did think it fit that most of these records
should be cited in the first Argument, by Mr.
Solicitor, to the end ihiit the counsel at the
bar might give an answer to them in their re-
ply : maat more have beeo added by Mr. So-
licitor, and many more I shall cite which have
not been remembered.
My Lords, in the vouching of these records,
I ihrJI obsen-eeight things. (I.) That the rft-
cords wa insist uiton, are not grounded npoB
ar>y private custom, or upon any charter, or
upon any covenants, but upon the laws of the
land ; and there is not in any oF these records
any recital that these writs went out opon any of
these gniunds. (Q.^ Tlial in all ages before the
Con<|uest, and in the time nf WiJlinm 1, that
these nritg have issued ' per ipsum regem, pec
' r^em et conciliura,' and did not issue upon
any advice of parliament. (3.) That tliese r^-
cords and writs were sent out, not in case of
Il.innibal ad portal, or an enemy discovered, or
sudden invasion ; but upon case of rumour^
and in that a dimmer might happen ; so not in
approaching of on enemy, but in case of prepa-
ratiim lo provide against ao enemy. (4.) TKm
the king did command shipping to be set forth
in those years wherein there were parliammtf,
and sitting parliaments, by bis royal power,
without advice of parliament. (6.) That whm
great subsidies and aids have beei) given dqw
the Ling by parliament ' pro defetisione reg',' in
the snme year that writ went Cirth for thede-
fencenf the kingdom. (S> That these aids have
not been required only from the maritime parts,
the ports, nor from the inland counties only,
but ■ per totam Angliam.' (7.) That many
times when thasa nriis isbued, there have been
no such causes declared, as hath been in this
writ. I shall observe, tliat in many of these
writs nn ciiuse at all is set forth in them, but
(8.) I shall verify every clause of this writ by
many precedents. A Mnndamus, and not a
Mandamus Roginles, shipping at the charge of
tlie county, ilnJ assessments made by the sbe-
rilTs, as commoners, and a penalty greater, not
only distress and hnprisonmeni, but extent of
lands, seizing of goods, till the king was paid.
Theic are the things I shall oburve aut or the
precedents, when fshall come unto them.
My l«rdi, in the fifth place, when I have
laid these foundations, I shall then dispel thoae '
mists thaihave been raised, remove those forces
that have been mustered, and ansu-er the ob-
jections of those gentlemen, that will not be sa-
tisfied by the king's writ under the greet seal :
And in the sixth give a particular answer to the
acts of parliitment that they have cited, to the
records that (hey have insisted upon, and lo tin
reasons and authorities they have alledged.
In tbe seventh place, I shnll answer their ex-
ceptions that hfive been taken unto the several
writs, records, and proceedings tkereupoo, that
hate been ptodncca by us,
1019} STATE TRIAI£, laCa.I. l6$7^Tie SaiBiigwalJolttiaamfdm,ttq. [1030
Erint tbete expediuan* nere etceptad. £d)el-
i-edui, king of tlie Merciaoi, anao 749, |raiited
' Monasteriis de, Sic' ticepi ul tupra. So m
III ihose times tliese senices were common, sad
>'eic done by a ' diciu regi-.' That tha
chunbes sliould be free from ull serricei, ex-
cept tlie«e ihree, expedilions uf buitiliug casilei,
liriili^es and furls; ' a quibu« iiitlli unquaiD lai-
' ari poasunt.' Egbert, an- 840, comruandeil
B gre.il nary lo be provided; nod lIihC for Ui»
dcl'encK of the realm, and safeKuard of tbip*.
Etlielwald, tlial nai king of ibe West Saioos,
niino 854, gr:inled lo the Cliurcb, thai it •
should be free from all service teniporal, except
' rfgalibus Iributis.' Id tlie time of kiug Al-
fred, who irai the dm monarch, and king of
ail England; one who was a privy-counsfllor
in hii time, and wrote the storv of that lime,
be, in ihe niiitli page of his boob, saith, ' Quod
■ rex Alfiedus niissit gaileaa longas oBTes a
■ rytuhas tediliciri ;' and ugiecing wiili this, it
tbe bistory of Asier Meoeretisis, Flnrentius
Wigomensis, 316, and IluntiDgdoo 351, where-
in yum lordships maji see bj the record, it wa»
done ' ex precepto r^is iier totura refinum.'
Tliis king m.-ide a law, wliich is not remembrred
bj Lambert in bii Saxon lawSi to ihii e&d;
that no man, bjf aommonSjhjr the horn or word
of moutli, !>tiould sit still in matter of theft,
bloodilied, or going to war, wbenaoever his
expedition should require; nnd there be doth
mention it to be upon p.iin of forfeiture of life.
Kin^ Edgar, wlio atiled himself Anglic Basi*
licui, lie in ilie ;enr 959 provided a great Davj
oF3,GO0 ships, as siulh Wigornensis, and M^th.
of Westminster; and he gave a command, ihat
rrrry yen, at Easter, a navj of 3 or 4.000 should
be set out, and dividBd into three parts. East,
West, Biid North : tbe ibips i>i those times were
nutsogreat as nowthejr be. ThesameEc%ar,in
the }car 973, granted to the abbey, of Thon.ey
nil manner of immunities, and thjc it sbouM tie
free fiom all services, except those three «f
building bridges, castles aDtf forts. And ifae
same king, in liis charter to the cfaurcb of Wor>
cfster, grnnteth tlieis to be free * ah omnibus
■ ey.ictionibus,' except ' coDitruclitinein poo-
And m the eighth place, I shall collect some
conclusions end reasons out of the premises,
and cite unto your lordships some judrciitl re-
cords, that may satisty your lord-hips in point
of judgment. I'liese are my materials, I shall
proceed to the bailding.
My lords, my first groand was, that this
Cower is innate in the pertou of an absolute
ing. All magistracy it is of nature, and obe-
dience, nnd subjection. It is of nature. And
before any mtmicipnl law was, pe:iple were go-
verned b<r the law of nature, and practice did
lule according to natural equity : this apptarelh
in the Reports of sir Ed. Coke, written by him,
when he was chief juitice, 7 Hep. fol. 13. 1
will not lakeoccHsiiin lo discoune either of the
law of nature, wlticb doth teach us to love our
country, and to defend ii, to expose the hand
-10 danger, rather than the heud should su9er;
nor of the Jaw of God, which commandeth ol>e>
dience nod subjection to the ordiunoce of our
Mperiors ; nor of the law of nations, whidi
4oth agree, that there must be protection from
the king, and obedience from the people; nnd
without defence there can be no protection ;
aad withnut md of the pimple there <^n he
no defence: nor of the imperial law, which
taitb, thnt in cuses pro (onununi vtiliia'.e the
king may iCulaert alone.
Myiiiids, upon ihis subject I uill confine my-
•etf to tlie law of the land, and insist up-m
wch records, and such precedeDis, and such
reasons, and such authorities, ns I find buth
by records of former times, and also in our
First, In the original govcmment of this na-
tiun, t do not find that it was a monarchy ; I
find ibecdntrary, that ibere was a great number
of. petty reifinieiits. And when Julias Cxsar
ioTMiea this realm, he wrileth there were four
kings ill Kent ; and Strabo saitb the like, lib.
4, so those times will not b« material. During
th« domication of the Roinani, which conti-
Noed 500 years, the Roraaas had their prefects
here in England. No men will doubt bul tbitt
tliey might command what they pleased, Nuli-
tia nlriuif; Imperii, fol. 161, that in their
timesthere were special officers, called Comitei,
ke, OfGcen appointed by sea, mid other offi-
cers by land. Ibose thM succeeded Ihe Ro-
B<ans were the Saxons: and in their times,
bolk by antient grants, and by edicts of tbe
princes of those times, it appears that this
naval power was commanded by them for the
^fence of the realm.
First, To hry,in with king Tna, x. t>. TS5, king
of the West-S«ions. This Linp m that year
iMKle k grant to tbe abbot at Glastonbury,
' Quod, &c, sine qnieti ah omnibus regiis exac-
' tionibus et operibus quod iudici suleoi,' ex-
cept ' Expedit' arcium, et ponlinm constnic-
* tionem.aicut in antiquo, &c.' which shews
that these eipedicions were accustomed to he
done. Wuldredus, who was king of Kent in
Ike year 743,-ffnnted unto his churches ' quod
* aint liberi au omnibus secnlaribus servitii*,'
except ' expcdit*
My lords, by all theae several grams, and
what hnth been done by those kings, it doth
appear that these three fundamental services
were ever reserved unto the crown, Mving tbe
grams to two or tliree abbeys, which had some
particular exemption. In tiie year 1008,wlLich
was remembered hy Mr. Solicitor, tliere was
then a great navy provided by king Ethelred.
The »ord> arc iliut: 'Rex Etbeliedul per
< lolam Anglinin ei 310 hidea, navcm unam.
' &.C, preparare, fecerat, itc' that was fiir every
310 hides of land to build une ship; and
eirry eight hides of land to find n maa and ■
corbel, and to meet nt Sandwich for delirnce
against tlie Dunei. Thii appearelb in Hun-
1'nK.dcin 36a Mutih. iif Westminster 387.
Iloveden 496. and Malinsburf 100 — Id this
reciiid these thioiis are observaUe, ' ret parare
' facit, el rex CM miait :' then ' ptr W^fa
Ifinil
1431} 8TATEntlALS> ISCKaklbsL l6S7.~-mae Caae t^ Sh^Mauf.^ liCM
* Antl-' lUl EogUnd wh to be GharseH. Bjr
the GlmsBTj br that learned BDct judicious an-
tiquary, kir Henry Spviman, it apijcara that
' vJrgBta terrge cnatiuet S4 acrai, quatuor vir-
' Ratal coQiinent uiinm hMaiD, ec quinq; hidu
* leod, militsr.' Upon calling up of rhii, it
dotii appear, that, there be in England 363,600
bidej of land; and e*ery SIO hides being to
•et oat ODe ship, the irhole number amoanterh
to divers thouaaads, 11,07!; and ei'ery eight
hide*, 10 set forth a soldier, amounts to 45,450
men: hut it i« not the number, but the matter,
that n done by the king's command, ' per
' totam Angliatn.*
In the SOth year of kinji; Ethelred, he made
■D edict, oliich Mr. Solicitor caused to be read
in court, saying he hnd it out of aii old book in
Cambridge, ■ Quod mstaurant tie! Domber del
* naTFS per singnlos anoos.' I read it to this
purposa, to sheur that in the SOth year of hit
nign, there was ti. naval expedition to be at-
wayi ready at Eaater, and sheweth the penalty
vFtuch as did depart withont licence.
King Can utns, Lambert UA. 117, 11&, 'ex
< sapientum coQcilio, tec' ordaioed a command
amongst bis temporal laws, cap. 10, ' quod
' prcsidia fiant,' &c. commands ships t" be pro-
vided; and fol. 118, a penalty upon all those
that refused to pay 1S0(. which was a great sum
in those da^s.
That which I obserre out of these two were
these: First, That thev were made by the
king, by the advice of hii lords; that there
were to be yearly preparations for shipping ;
and those that departed out of the service wiih-
oat license, were to iacai the forfeiture of all
their est»tes. If these edicia were acts of par-
liament, t hay stand unrepealed ;'and if no act*,
then they stajid by command from the king's
My lords, I haie shewed you the practice,
as il was before the time of William the 1*1 :
He did not nbrogste the farmer laws, bqt was
iwom to perform them. Nay, it was said that
he did confirm ' antiquas Icees et consuetu-
'dines Anglia.' So then, if these were the
laws, and this the power that the antient kings
of England had before his time, he did rati^
•nd confirra it, buc Dot diminish it. This
power of commanding of shipping, for ihi
fence of the realm. It is a principal part of the
power royai. This kingdom, it Is a monarchy.
It coiiwsta of hend and members, the king is the
head of this politic body ; it consists of dergy
«nd laity s the bead, it is furnished with entire
power and jurisdiction, not oidy to administer '
jqstice in cases criininnl and tempor.il nnto his
peopk, but likewise for defence of both ; end
be may command the pfiwer both of the onr
and the other. This power I find to be men-
tioned in the register of original writt, written
before the conqnfrit, 187 b. It reciieih, that
' Nos coniiderontes quod ratione regiz dig'ii-
' tatis maiime ad providendum taJvationi n-g'
' nnslri circnmquaqi aatringimur,' It appears
hj Stamford, in his Pr^n>gBt, cap. 1, that as ibe
lung is tbe moK ezcdleat wd woTtbiest part of
'ealth, so is he also tlie p
noumbcr, and defender of his people.
neKue, that they liave cited ; that a
iwealth witliout thu head ix hut a tmnk,
ai the natural body ii a cadaver. 1 fiiid- it in
Fiti. Her. Na. Br. fo. 73, <>r 173, Uml the king
of right ought to save and deleud tlie realm, as
well against the sea as agaiiist the enemici,
that it be not suniiunded nnr nastid.
How is this df tence against !<« sta and ene-
mieaof the kingdoni t Is ilie kina boiiud tod»-
fMid the kingdom by sea walls at his nmm
charges f — No ; the power of dt fi nee is « )••
perinlendeot power iu his niajestv. tu nollxv
riie sberiffi and commisiinnem ti> see it done,
but by his power; yet at the chhrge of the
peiiple. Register 197 h. it appeareth tliere,
where the king caniinandelh the people by hii
writs ; the one directed lo the theriff, and Sib"
other to the commiasionen, and in boib wiljcifa
and cummandeth, ' quod diitringnt A. B. et til','
to distrain the lands of all those thai may re-
ceive dHTnnge to repair the sea-walK, ns «fU h
the Ter' Tenn". This writ was before any lia-
tute cpnceniiDgthal, for the Register was belbr*
tho Conquest; and the lint statute thai con-
cetnelh commissions of sewers, wns lande S H.
0. So it is by the power the king had at cim-
nion law, and' nut upon Hn\ statute : And tbia
was to the sheriff, as well as to commissioners ;
and that it was done nt ihechurge of the ci>di>-
try, and not at the king's charge, PhI. 33, Ed 1,
m, 4, dor*, agrceth with the Register; TIib
king doth tlierc recite, < Quod ratione dlgnitai-
' [is regis, &c. et per iummeuEuminmusflslricti
' ad providendum tilvaiioni reg';' and there
he givech power to commlssionerf to distrain
the people lo make defence against the sea, at
their own charges. Pal. 3 Ed. 2, purs 9, m. 5,
dors, in the cas<; of Wiseman. Rep. 3, f-il. 15,
the king, rx offiiie, ouiht to govern bis subjects
in peace and tranquillity. 7 Rep. fol. 9, pro-
tection of the king is general over all the kmg-
dom ] there is reason why it should be thni :
For the king of England, he hath an entire em-
pire, he is nn absolqte monnrcb ; nutliing can
be given unto an absolute prince, hat is mbe-
rent in his person, as may appear by bonks,
records, and acta of pailinmenl ; Bract, lib. S,
fol. 55, h. Sciendum, 6rc. ' Doniiaiis rex super
' omnes qui ad eoronam pertinent.' This ap-
pears likewise in (be ststuie 3'i Hrn. 8. There
It is declared that thrs realm of England is an
empire, and hatli been so ncceptedm the world.
Stat. 35 Hen. 8, cRp. SI, 1 Elii cnp. 1, 1 Jac.
cap. 1, the crown of Entlanil is nfbnned to ha
an imperial crown ; and acts of parlwnent are
proofs of the highest nature. 16 HiS. 3, c. 9,
thai the king hohji'th his empire immediaiely of
the God of Hem-eu : And nt his coronation,
his crown is ciesated as a signiEcation thereof.
This is likewifte acknuwj.dged in the Iri^h Re-
ports, fol 00, ' Rei Angliie est ahsuluins mo-
■ iiarcha in regno suo.' Furtescue saitb, the
liing of Enitlnnd, as well ai Bnj> oiber kii)^ or
emperor, hath all the liberties within this king-
dom ■ in imperio suu.' Tba law of England
I0S8] STATETBIAU, IS Ca.t it^S^.—ne King t^WutJoiinJfyiipdea,aq. [1024
makes tlte kinnof Eodiind, not as bit lubjecK
are, % natural bixl^, but d \iody politic, freeih
him from all imfierfeciinn and infinpitjr ; he is
imiDorul, and never dies ; the kiug eier liv«tli.
Com. 177, II lUp. Till, 7, 31 Ed. 4, and otlier
My lards, as he U an absolute moniirch, so
ail t)ie»e, ' Jura sumina maj^atis,' are giten
unto his person b; the comiqan law.
First, He hnth supreme dominion, both by
Ka and land, as is proved by the Mirror, tlie
(reatett pait wiiereoF whs writ before the Cm-
Siest. Some tilings are added to it by U.
onie in tlie reign of Ed. 4. He UoldetL, that
all lands, and all jurisdiction, and all dominion,
is derived Iroin the crown ; That wbatsoerer
was not gi'Bul^ from the cniwn, remainetlt in
the person of (he king. Thb Supreinuni Do-
■ miuium is so inherent in the king's pereoii, that
if the king grants away his lands, ' absq; aliqua
' reddendo,' yet the tenure must iiiU remain
to the kii^; ellen.T, 12,30Uen.8,45 Dver.
This dominion is not nnly upon the land, but it
is upon the sea. And ao ttic king he hath not
only B dominioa at sea, but he is ' dominus ina-
' Hs Aofflicani ;' be is both owner o( the seti.
and of tnesoil under the sen. And so it was
resolved hiiely, by my Lord Chief Baron, and
the rest of the barons in the Eicheituer, in the
case of Sutton Marsh, Mich. IS Car. That ibe
soil oC the laud, so far aa the sea floweth, is Itic
king's, and the king Is seized thcreof,|7urc furo-
n*. - Alirror % Bract, ful. 8, terups Edw. 1,
.Avowry, 46 Ed. 3, Com. 3, b. That not only
(he dominion of the »ea, but [lie .very soil be-
longeth itiito the king.
la the next place he hath, be^icloi his tu-
pteauui domiaiarn, a sovereign jtirisdiciiaii, and
thateitends bath by seaaiidUnd.
First, For creation of all his great officers
and Judges; crentiou of the Ailiniralty, time
ojtofmind. 30 Hen. 7, fol. 8, 13 Hen. 7,fol.
17, poner to make justices could not tc grant-
ed i ^nd all these poMers resumed iu the sta-
tute, ns inherent in the crown. 13 Hen. 7, fbl.
17, there it is said Ly Fineux, ibul at ilie be-
gtQoing all ndmini^itnitioif of justice wai in one
hand, that is, iu the crown. And surely this
jurisdiction did nut be^n iu tho time of Kic. 1,
when ihnse laws iverc renewed by him ut his
return from the Holy Land ; but there were
admirals in England, and the admiral law by
sea long before. 37 F.(\. 1, a famous record in
the Tower, that the commissioners for the em-
G^ror, Spain nnd France, did appear before the
ng'9 conuniseionert, and did Bckn«wledi;e ilie
sovereignty of tlie king of England upon the sea
did liellfng unto liim time out of mind. And
for further proof of ibis, it Hkewise appeareth
in that learned book of Mr. Selduns called
Mare Clausum.
My brdi, the iieit inherent power of the
crown are pardons of offences and condemned
persons, and resiitutions, which none can do
but the king himself, 1 Heo. 4, fol. 5, 30, Hen.
The next it 'Jus numiui percuuendi,'
when there v
.
ting of a royal stanip upon his coin, ihe advanc-
ing of the value of bis coin, and tlie dehasiD;;
of it. 31 Ed. 8, 6. That the king only caa
puta valfe upon it. 5 Hep, fol. 114. That
the. king, by his absolute prerogali re, may make
any foreign coin lawful money of England, bj
his proclamation, Davies Ilapons, ful. 90. '
The next, 'jus suuuniB majcstatis,' is that
of concluding war aud peace, which is abso-
lutely ioherent in the kinf;'3 person, which Ite
may do without' calling his great council, 19
£d. 3, 6, and 7 llepurt 35. That all the sub-
jects of England cannot niake a war, Mtiim n-
dkere belongs not t'l the subject. And to
make aliens and denizens, is a high prert^-
My lords, this trust that the kii^ hath for
making of war and peace, and for the defence
of llie .realm, hath by sea and land, it is a grcM,
trust, hilierent in Che person of Ihe king; do
man ought to mistrust where the Iqwdotb trust.
There is an objection made, that if it sboMld
" in the power of the. tin^, he might do it
. .1 — ground tor it, and without
cause ; anu cause turccs to be mustered, and-
tbips provided where there is no imminenc
danger, in such a manner, as that it might be
grievous unto the people. There are objec-
lions clearly against presumption of law; Ibr
where the law tiusteih, we ought not tndiitrust-
The king, as app^reih by all our b'loks, b the
fountain of justice and piety, nnd will doJii»-
lice unto all his subjects, 1 Com. 340. All
juntice is derifMl from the king, 13 Ed. 4, 8.
The king can do no wrung. Sract. bb. 3, cap.
9, e, H. 6, 30. It it ruyal power, ' De aver
' correction de luy m'.' He is. the sole judge,
and we ought not to quesiion biin, Bractoa,
' Rex non babctsupcrluremuisi Uens,' 11 Rep.
f. 73. The king is the fountain of justice and
common right : And the kii^, being Cod'a lieu-
tenant, cannot do wrong, 17 Ed. 3, 49. Tbe
king could not be made an iustruinent of covin
and IVnud, hut the patent was void, Liuleton'a
Comment. 99, Ilie 5th Report, Ibl. 14. That
religion, justice, nnd verity, are the sure SDp-
p'lrUi^ of cronns and diadems, 34 Ed. 3, 43.
Stamford's Pleas of the Crown, fol. 72. At
the common law, tiie law doth not distrust
wliere the king duth commit 'on^, but tliat i*
upon just cause, and so we are not io doubt it.
And thetefore at the common law. West. 1,
cap. 15, a man comniitieil by the king was not
replevinble: Nay, if he was commitleid by his
council that mas hie representative body, h«
was not replei'iabie. Shall we then, wheti tbe
law hath committed this power unto tlte kin^
whois tbe fountain ofjusliceand equity, wlia
is inislrusted by the law of the realm, and ibe
commonweal til intrusts him; shidl we tbiuk
tliat Bucceedii^ kings will do that which b
QOt lil to be done? Isay, if the hiw trust bim,
we ought to trust him. At the common law,
if the king commit a man per bouchc, he is not
But for a. further reason, those that are b^
delegaus or Judges, are not to be mistmHCiL
,Goo;;lc
1(H5] STATE TRIALS, 13 CnARLEsI. Jfii7.—iA ihe Cuk qf Sbip-Moruy. [U>M
, , n his oScF, ahull
uigned fur
delej^iitc poner, much inore in ihe pcir.iitire |
. and r.>iintnin. S itlur. Ujer 163, tbi? court of |
Kiiig's^cacb di<l r.ccitc u record of nisi prim, i
' the fostea returned (if the clert, and the deatli 1
of the justice of assize U'lisned for error, nnd
could not be received ; and" si), 1 Mar. Dyer
_ 39, ■ writ of error tn reverse b. tiny, proal in
Dyer, That is the reaNon of the Inok, 7 Hen,
7, fol. 40, 10 Uco. T, 2a. Fitz. Her. Na. Br.
138, laiih, be cannot asii-^tn .{.tt error, uor shall
be admitted lo nlk-dgc any iliinj; cautrary to
Che oSlceof a judge; nstosay. Ihe jud^e did
not give riEhtjurismeut, or^the clerk did nut
nakerigliteiitriM, m.T,Ed. 1,B. Ri. and tlint
is the reasOEi wlija mail of-ntin nnnjMW uenlii
in a liiie, nnd lutfiiriug of a recovery, it shall not
be assigned lor ernir n^aiiDt tue acta of a
judge, 8 Kep. Dr. Bonner's case. Records by
a judge, nor justice of peace, not lraTers:ible.
Good my lords, ihen, if by the laws of this
kiu^ia one shall not be admitted to receive
BD averment gainst any-acts done by your
lordshi[M the judges, or against acts dune
by inferior jud)(es ; turelv in ihij, where the
ling isabsolutajodge, ittlisllnntbcillun'ed to
*aj, [here was no Cause of dniit^er, or ilmi 'u
tloneby the king which ought one to be dune.
BracL lib. 1, cap. H, ' est iu corona r¥;:u Ih-
• cere jusiiiiam ;' The kins " '" absolutely
trusted *nth this defence, that « subject cnnnnt
■lake a fyn. or castle upon his unti freehold
witliout tlie kind's license ; that appears in the
old Mag' Char' 6). \6i. Inqtiiry made of those
that do build forts and casiles without (he
king's hcense, Kut' Pari' 45 &I. 3, m. 34, 6
Hen. 4, 19, and a book nFLong. 5 Ed. 4, f;l.
129, that a subject cannot make a furt or cas-
tle without the king's hcense ; not iu hij own
(round.
My lords, the king. bath so discharged ihis
triut, that though there were do account unto
the subjeot, yet ihe»e ships that hnve been
eommiuided were ' ad proticiscend' cuiu uavl-
' bus Doitris.' The king hatb been at greater
charge with these shifts goin; out, than any
kini; of England ever was,' as uill appear by
thcne vast sums of money the kin^ hath spent
io these year^, besides what hatli been contri-
buted to It by thetubjects.
My lords, I have done with my first position,
that It is an inbcrent right in ihc person ufthe
king of England; and that the kins " ''i^
■ole Judge, both of thedai^r, nndwlienund
haw it is to be avoided.
It bath been olyected. That the king of
England m.-iy do it, but how I It must be. nc-
cording to the inaiituliun of tlie hiivs of tlie
realm : there must be a roncurrent power, a
jMilitic advice in parliament, and so it-may be
done. But the king, either by his ordinary
power ur absolute, without the aui^tatii:* of
tlie great council, he cannot do it, as hath been
otnected. And thererore in the second place,
I shall coma to the second thing 1 did pr'ipnse,
that was, Tfau the king, u be u king of IDng-
tand, that lie iilooe, for tliia common defence of
the rcidin, M'ith.iut the uid of parlianienl, niny
ilaluerr, 4'C. That the kin|E, by tlie advice uf
his council uhen he pleaict, may do ii ; that
he m.iy ordain several ways by itae instiiuiiuii
of ihe coinmoa Iiiws, by his orJiuaiice, by hi*
proclamation, by his patents, by his writs, and
in legut matters by bis judges. That ihis may
be done by him.
First, ll: is agreeable to reason; for kings
were before parliamcni^, and then surely ihij
bight bare done it. Asjustice dutli flow Iruni
the crown originally, as it was io Mutes, su it
is in the king ut' England, oiily in ibt king's
person. But oflerwurds the king did deput« -
bis deputies, and gave others 'power ; this is no
ooncpit of iniiie. 12 lien. T, fol. IT, b. per
I'meaUK, there was n time u hen ilicre were no
municipul laws, nlicii positive laws were niit
establistiiid, nhcn kii^ did ttile ilieir peopla
according IU natural equity; and tlicn surtlj
Ihe king might ordain. No man will ([uislioa
it; since liiere liave been pO'itive l»wg and
inunicipnl laws-, the kings of Engluiid they haie
ordained, as by those several records citi'd ap-
pears. It appears by the pmclice tiiire tlie
time of Williain 1, ibiit thekmgs of England in
all tliDse writ* that iliey have ordained, have
prescribed the time fur issuing of tliise writs,
the numbers of the ships, the times ol meetibr,
the manner of munition, and to stay for llie
defence fuiBirfiH n(iliifi^nrer«t. I liavi- inuda '
a collection of what have gone out by ihc king
himseir, what per leptm et conri/ium, and wiiat
by advice of his (^oiii)cil, and with llie adiiie
of inercliants and purf-nicii ; but they are to
inriniic, and ko many of ihein, thai I will not
trouble your lordships wiiii the rcpetiiiun of
ihem.
These ordinances for the defence, they are
suitable and aureeablc to the ordinance that
the king make th in other cusps, where the king
□ lone doth ordain, as by hih proclnmatlou.
Claus. 34 Ed. S; pars S, m. 3, dors. Tlie king
by hit proclamation cumnivnded oil earls,
barons, knights, isquires, and otlier men at
arms. Chat none of ibem should depart into
foreign parti. Fitz. Na. Br. fo. 85, lie agreetfa
it; and saiih Ihe book. He that transgn-^eih
this prockination shall be fined for his dis-
obedience. And this command may be under
the great seal, sigiiucure, orv privy-ecnl; for
saitli the bnok. The subject is to lake notice of
any iit' ihe king'a seals ; so in all ages he hath
commanded no viciuajs shall be transported.
Chut, 84 Ed. 3, m, 7, dors. 5, Dec. 4 Hen. 8,
li Urn. T, S3. The kii^ granted a proclama-
lion for a Justin|;; and if ooe of tlie two that
bo fighting be killed, it is no felony. 5 Report
114. The king by his alrsolnte power may
make nny kind of money current by hia pco-
clnmslion. In the neit place, the king may
ord^iin by his patent alone. 40 Kd. 3, t'ol. ir,
13. The king did grant ■ privilejie to the
scholars of Oxford, iliat tlicy should have tlx)
choice of the iniw in Oxford, whicli was before
there wera anv fair cuUegca-in Uifordi taith
3u '
1027]' STATE TRIAIS, IS Ch. 1. 1637.— The iCingOgama John Hampdat.aq. [lOA
7, SO, juron b^ I»<t nre to bold together tU
rbej ^ve up tlieir verdicl, jret otherwiie, if thx
liouse be like to full upon their beads. 38
Hen. 7, 11, upon a Proecipe, the tenaot m*;
be excuse, if he could not pass the waters.
My kirdt, I find that in legal matters tiw
kinft and his judges make certain eiplnnatiolw
upon the sininte of GloceBter, as appenrs bj
Mag' Clinr.' And nhaC was done then by tM
judges advice, haihthe fore* of a law at that
day. So as you see by the laws of Eogtand , ■>
well in other cases, as in cases of defence, tfa*
law hflih given the ling of England this power
to rirduin fiir the good and safely thereof,
I find that in all ages, and io all times, the
incidents to a defence, as well as tins principal
part, hsCb farfn pveii to ihe king himsrlf, am
he ii king of England. First, For the Muraee,
ufTowns: Thiit tbe king hnth comlnnnded tfie
■liurage uF towns ta be done at the people's
charge ; the precedents are so many, I wiU
menlion none nf them; and shall he not -com-
mand for the defence of the woodeii waJJa of
the kingdom? Rot' Aim' 12 Ed. 3, pars 3, m.
10. I'he king commands by writ a place to l>«
fortified towards the war; and every man hav-
ing rent there to contribute, or to be com-
pelled thereto by distresi; that was command-
ed to be dooe by writ, Pat. la Ed. 3, para 5,
IB. 5, it appeareth it wai done. The itioB
irapnsed a certain rate upon all goods and
merchandize that came unto Kingston Hpoa
Hull, and commanded tbisshould be en^lojed
Co the walling uf the town ; tlus was ' de volga-
■ iBtc re^ii'this appeareth Rot. Pat. 19 Ed.
3, pars I, m. 19, there was the tame command
for other towns, as Dover, &c. The said roll,
m. S3, PaL IS, Bd. 3, pais S, m. 14, dors, a
writ for the repairing of the walls of Wincbestet
at the subjects chaise. Rot. ib. m. 15, tbe
'■- ing by special grant gave power to the mayor
and burgesses to assbss the inhabitants toward*
the nmkiflg of the wall, and the defence of tlie
town. Cluus. 1 Ric. 3, ni. 19, Oxfnnl waa
commanded by the kintt to be fortihed at tba
inhabitants chnt^e. Clnus. 19 Ed. 3, pan 3,
TO. 39, the king commanded particular sub-
jects to fortify their castles at their own cbarj^
in(iin';<ifdanger,Pat. 18, Ed.3, m,9, tlie kii^
taketh the casilea of the subjects into his own
hnnils in lime of danger, ' ad evilanlum danwfc
'etpcriciilafium nobis evenire possinl.' Claua.
13 Ed. 3, pars 1, m. 3Q, dors, the king by ad-
vice of his council did ordain, that ihe towD of
Soul ham ptoii, ■ pro salvacione ejusd',' sbouM
build a wall.
My lords, if the king may command the
walling of n town at tliechargs oftheinhabt-
tattt°, he may likewise command tbe defence
of the kingdom by sea ; to for other 4ncideMs
iif defence, as fur erecCine beacoiw upon (ha
sea..caasts Rot. A'as, 11, 19 Ed. 3, m. SO,
' de commanibus in singulis ;' Clans. 1, Ric. t,
m. 4, dors. ' de nrdinjtKine per rrgem et c(B-
' cihum nro vigiiiis fucirnd'.' S<i likewise the
kinv in all ages bath cuannanded ttie inbanriai
of ships for ttie defMce of (ba fMla, and fb^atl
., .:GooqIc
I, This is my freehold, the king
cannot do it: sny the judges. This is by ilie
king's patent, and is in favour of teaming, aod
therefiite a good ordinance. So the justice in
eyre may take up the principal inn in a town.
Is there any thfng more usual than lor the king
togivepoHer to a corporation to make ordi-
nance for H common goud ? 49 Eil. 3, 169.
Shall it be so?hi the crealirre, and not In him
th.1t makes the creature } A case or two upon
every one of fheni. Tbe klnc mny ordain by
his writ, and that appears 9 Ed. 3, IS, a writ
nf Cessavit ai;ain>t tlie tenants of Northumber-
land. The tfunnts had been mightily op-
pressed by the Scots ; they petitioned the king,
and said, they were not able to pay their Isnd-
iords their rei>t5, by reason of those.' incursions
ufton tlicin Iif the Scots, and desired stay of
suit: and there it appeareth, thst tbe king did
ordain by his writ, tluit (hose uiics upon those
reasons sliould not proceed against tlie tenants
for non-payment of their rents. Out of tbe
aame reuson are the writs ol' protection.
Tlien the king and his council may ordain ;
fiir that I find, m. 4, Hen. S, fiu. Her. N. Br.
Dower 1T9, a writ of Dower there brought hy
■ French woman. Tlie leoaut nf the writ
{leaded, tiiat there was an ordinance of tlie
ing and council, ' Quod nullus de potestata
'regis Frnncim respondeilur de Angba ante-
* quam Angl' respond' de jure suo in Francia ;'
that Is, We Enylishmen should not be com-
pelled 10 ansnerany Frenchman nr woman in a
legal way, till tbe English were answered in
f rince to their suits there. 39 Ed. 3, 7 per
Thorp. The king and his lords mny make en
ordinance, which sball be as binding as a sta-
tute. Rot Franc. 73 Ed. 3, m. 6. Tlie king
by the advice of hiq council did unlaiu <^aod
' omnes magnnt. et ul' qui habent ten^s ct
' tentmenta continue motat', &c.' Upon this
ordinance I can khew above 40 writs that have
EnneoQttolhanobility.clergy, archbishops, and
ishops, and to all the king's subjects too thai
had bouses in the maritime parts. Hot. Franc.
89 Ed. 3, ni, 16, and 50 Ed. 3, m. 47, dors. 94
Ed. 3; m. 6, that of 24 Is to the inlands within
16 Diiies of the sea coasts. 40 Ed. 3, m. 37,
the like writs awarded to most maritime coun-
ties, upon pain of seizure of their Innds and
goods. So likewise for provision for the army ;
the king and his council have ordained, both
fur muiicts to be kept tvithiu such a distance
. of thearmv, and wine to he sold there, and no
where els*. Roi.Sco. 10, 13 Ed, 9, m. 13,
dors. So they have set down the number of
the men of arms that every town should be
charged with, Clnii-. 13 Ed. 3, pars 1, m. 14,
dors, with n cummantl diat they ^l.nuld distrain
My Ixrds, if the king may at any time of
danger, bj hi* proclnmntimi, by his patent, hy
Ills writ, bv the advice of hit council ; snr«ty in
case of necessity it is muib more lawful, for
neceuitei ril lex temporit, where a defence by
■ea and land is vequired. 6 Ed. 4, 6. 14 Hen.
STATE TKIALS, ISChahluL I6i7.—mae Cote <f Ship-Many. [1060
lOM]
pnblic wrvice ; thii appoicth Claus. 14
3, m. IT, dors, ill ibips arrested that
cairr; 16 bones. Rot. Sea. 10 Ed. 3, i
don. ' omnet naves pr» defentione, &c.'
Alim. 11 £d. 3, m. 33. par) 1, tad 19, for tbe
imtMrnng of sbips Tor tiie dvfence of ih« r«iilm.
8o likewise Lbe king commaDileth and appoiiit-
«th «ho shnll be oScen, who sitall be ndiniral
oT (he Deer, who ihiill be Custudes Maris, ■«
•ppearsPai, EH. 9, m. 7, den. nndin lliesiinie
rail, m. 10, P&t. 15 Johanms m. 10, Pat. 48
Hen. », m. 5, CInus. 93 Ed. 3, m. S, dors, and
aa infinite number more. Then that the coun-
ty paid tbe charges of thole who had Custod'
Maritin', that appears. Rot. Fra. il Ed. 3,
m. 31, dort. Claus. 13 Ed. S, pan 1, n. 14,
dor*. The kin^ when tltere waa caui« he ido-
detaMd tbeexpence. Claus. 2S V^, 3, m. 16.
The king did order how much, and bow long
the couittj should puj for wages ; "and com-
roani^ ibe sir; nf those that could have been
KOne before tlieir timo : and tliis ajjpeareth
Pat. 48 Hen. 3, m. 4. Claus. 48 Hen. 3, id. 2,
9. don. Then it appeareth by many records,
that (his guard of tbe »e«-rj)iutt wus to be ac-
eordia^ as the king should order and direct,
■ amaeiiraet per Tcgem »ad sometimes jier not et,
eontilam: and this appenreth Claus. 33 Ed. 1,
n. 6, don. Clans. 13 Ed. S, pars S, m. 11,
A>n.Pat. 29 Ed. l,m. 1.
Sometime lbe king out of hi) roTiI power
bath been pleased to give discharges to pnrti-
enlax men, to be dlsclmr^ed from this Cuitud'
Maritim. This appeareth Claus. 23 Ed. 1,
n. A, dors. Portsmouth discharged, bacause
Aeir shipt were in the king's service, Cliius.
. 8 BJc. 3, m. A discharge for the abhot of St.
Albans, PaU 19 Ed. 3, pan 2, m. e, Pat. 12,
Ed. 3, pan 1, m. 14, discharges de Custod'
Then ibe power of puniihing those that should
n^lect tlifue commands hnth been always in
tbe king, and to be punished hy his comuiis-
■oners, or by his writs, and that in a liigb
' That there have been commands by distress,
hy imprisonTn^Dt, by seizure 'oT lands, gotids,
•nd forfeiture of all that they had, this appear-
«lh, Pat. 48 Hen. 3, don. Claus. 48 Tien. 3,
m. 3, and a great number in the tiiucs of Ed.
C, and Ed. 3. The king hath so far meddled
in tliia buiness, that tliougb it hHlh been the
money oTthe cnuntrf, yet the king l>:ith ap-
pointed tbe pay-muHer, Claus. 48 Hen. 3,
m. SO, Claut. 16 Ed. S, m. 13. So all arrays
fiiT mustering of men.betweeo 16 end 60, hnv
been in all ages, and by the king't cnmruanil,
the king ihaU please, Itot. Aim. 12 Ld. 3,
pan S, m. 6, don. So, tny lords, ii duth ap-
pear'by these preccdenl!< that haveleen cited,
by these record", and by these book-cn*eti, that
lbe kings of England hnve in all agei given
CtKnmand, and made ordinances by theinselies,
hy their council, by their judges, and by their
p«en ; and these ordinances have been obeyed,
r Uj loqb, 1 pronisa upon tfaii h«ad to make
, it good, that in these times, and iu these years,
wlierein tbtre were parliamenis, that though
the parliaments did determine mattera concern-
in; the land forces, and the giiing of the kiii^'i
array into Scotland, and yet siitmg the parlia-
ment, tlio king hntli comtnnuded the setting
i'H'lh of ships by his writ ; tliig was ever left to
the royal pnner. For the proof of lliis, thero
was, the 24 Ed. 1, a parliament, as appears in
the printed books i;{ that year ; and 4n that
year i)ie king comtniiiided ships by liis wnla
ut the chaige of tlie subjects. Pat. 24 Ed. 1,
m. IT. Cunimaiid to liike up a hundred. shipa;
and in Pat. »4 Ed. ], es parte regit rem. Ek-
chequei^RoU 22. Coinmaiid pro Cuitod' marit'.
Hil. 9 Ed. 2, a parliament holdcn at Lincoln,
and yet ill the same year writs went out-to pro-
vii1eshippiiig,Hsappcaraby Itot. Pat. 9 Ed. 9,
Crs 3, m. e6, I find there was a parliament
Id 12 Ed. 2. This appeareth in the hook of
statutes. Out. Scot. 11, and 13 Ed. 3, m. 8,
thci king recites certain inioads made upon the
men in Niirthum)>erland, 'et>]U"d de comiouni
' coiiciliii,' held at York, ' ordioavimus, &c.'
■ and nttigns the earl of Pembrvke, and bishop
of Norwich, ' nd reqiiirend' NoifT el Suff
'juita disuretiones vesiras subsidium facera
' per uaves, &c. pertempus trium vel (]uatuor
' mensium.' At ibis time there was a provision
hy parliament for the king's service by land,
and for his unnies to meet him ar Newcastle ;
and for twu reasons wby Navale Subsidium
should be necessary. < First, to binder the
biinEiDg of any victuals into Scotland. Se-
condly, for the free intercourse of trade. So
as you ife, in this year wherein a parliameut
washoli.en, ibis Navale Subsidium was com-
manded by the king's urit, wiiliout on act of
purliameit; though this writ was fur Norfulk
and Suffo k, jet the like was for Dorset, S<i|ner.
set, &c. It appearcth likewise 10 and 11 Ed. 2,
which were tliose great years of sending out of
writs, that then parliaments were bnlden. And
10 it doth appenr by the urinied book of Bta-
lutes ; yet in that year of 10 Ed. 3. Claus. 10
Ed.3,m. ST, don. a writ directed to the mayor
and bailiff of Bristol, with a coinmaiul-thnt all
ships of 40 tons tt ultra, should be seized. 10
Etl. 3, m. 21, don. command that [he ship*
should be set fortli for the preventing of dan-
ger, and that no fori-ignen ships come in to aid
ihe Scots. M. 31, dors, the same roll ; com-
mand to the city of Londnn td set out ships at
their own charge. Sco. 10 Ed. 3, m. 21, dora.
Writs to the sheriff of Bucks to si-iid honemen
and footmen to the countjr of Southampton ;
so there were men drawn out of their rounty,
and the refuser* there were called rebels. Rot.
ib. writs ' Dc Nnvibus pro Defeasioiie Itegni.'
My lords, there was sumethiiu more o^serv-
nble in this year of 10 Ed. 3, for some of tba
•crits that went out bear teste 3 Octubris 10
Ed. 3, and menticn o'parliument, but did not
go out by any ordinance of parliament ; so that
tbe awarding of these wriu 10 £d. 3, wera
sitting tlie parliament, and by the royal power i
which i* a *trong atsuoient, there Deodatb lU
1031] STATE'lltlALS, 1SC«.1. \0S1.~1^ Kins asaiml John Hampdei.eMq. [lOW
|i[eme litlrs, wlticli ttiu common Inw of Eng-
Innd givMli unto the king, irliich may cDCirce
[.bi». Bract. lib. 3, cup. 94, umh, that ibe
kilij; he is Vicarnit Dei; Ins punrr, u «n
agreed, ii jure divum. Gud is the God of
liosts, anil the. king is a model of God biioidf.
40 Lti. 3, fol. 18, the kini> is the chief guanliaa
of the c'lmmuunealih. The theriff hath Posm
Comitntus uuder the king, llie king's vicegerait
in the county: And lie hath liiis power, not
onl; for the excculion of Iq^l procett, but for
tlie defence of tlie renlm. 12 Uen. T, fol. T, ihil
<l(lrg!(ie poirer of tlie theriS' i* as well frir d>-
fence, as frir the eiecuUoii of proccM. Shall
the EherilF da it, and nut the king! 10 Hen. 3,
fol. 1, B. lien. 7, t'ul. 1, the kioic is ibe cnattr-
vator uf the Uw. SO Hen. T, I'ul. «. ■ Rel eti
' Cnpiialis Jusliciarius totius Anglia:;' be ii
Dot onlj to maintain justice in the courts oC
juiitici;, but 10 protect und defend his penpit,
StuiiilorJ's Prtrxgal. cap. 1. The king it tb*
most wnrdiy part uf tlie body of tlie common-
weulfh, the preserver, nouriilier, enddefcndtrnf
it : And by this tlwy enjfly their law), goods
niid iands, 11 llep. t.il, 70. b. Magdalen-Citl-
leEf'a case, ' Hex est .Medicus Regui et Sponsus
' Kei| uUica?.' It ii the part of a ci>od physi-
cian, as well to prevent dibcnse^, hs to cure
tlieiQ i and tlic oUice of a go'od king, a) well to
prevciil d^meer, as to remedy it. Cum. fiiL
130. He is the raul that nuiiuatcs the body nf
the CO mmo a wen I ill ; and we ought to niotc^as
lie moves. 11 Hep, fol. 12. Ihe Ling is the
fountain of conmuii right, therefore we bate
no reason In stain the fuuiiluio.
1 nm now come to my fourth proof, which is
by precedents, wlieieia I shall be- somewbet
wd of parliament fnnbe king to command hi':
forces. 11 £d. 3, tliere iva< likewise a purliu-
n^t, as appeareih. in ihe printed books of
•tHtutee, yel Hrits daied 10 Januarii 1) Ed. 3,
per ipiun ngfm, khips ace commanded pro
guerr^ lupr.r mart. Kot, Vm. 20 Ed. 3. m. 6,
dors. pradumHiiQu to tcverat counties, that nil
■liips be in reodiiiesj. In the I3ih year of Ed.
9, tliere was a parliament at Northampton,
CIttus. 13 Ed. 3, pan S, m. 1, ihe same rull
pars 9, m. 3!, and yet the same year the king
COmmiiiideds>iip^mi;Bt tlie charge i>f the couu-
Aiid'
in tbe 13th yrar of £d. 3, there was hkewise a
parliament hotden, as appenreih lijtii Ed. 3,
ID. 9, 10, but printed ^tututes make no men-
tion rif n pai tiament tlien.
My lords, in this record tliese thinp are nb-
Krvabl^, ciieil, and made ute ol by the defen-
duiit's counsel ; a stirof.g record as any can be
atwhist them 1 In ihul purliumeiit the king he
' did pray llie advice of tlie commona in puriia-
udiin
with Era
guHrding til tbe »ea-
' Gi>un<t(-1 doner at chmc^ de r|Mel ne pna^ cunu-
' zance, &c.' 'I lipy say further, and they grant
thai tlie iiinritiiiie lowns i.oglit t'l mn'ke the
euui-d upon the >ea wiiboui wages, and the in-
Tnnd t'lWns upon ilic Und.
'1 -o tilings are ohsennhle in this record.
First, WIk'u iIk? kinc doth descend so low sa
to pray tht uiliice of his onimom in parlin-
mei't, nnd Biti.tiince for ilie cuarding of the
•ea i the cini^auins dinctaiintd it, and said, ihey
b*™ no connuznnce, &c. nnd yet the drfen-
dniit's compel diil press, that now the king
ahould ask the lulvire of ihe cnmntons in pnr-
liiuiieni ; a ihing disclnimed hy thtt commons
in purlixneni 13 Ed. 3, M Iwte'nny cognisance
of. Se>-oudIy, Thai hj ibis record, the mari-
time parts niig;fat to guard tlie sea at their oivn
charge*! Tliis, thoiiHh it was granted iii iboir
petitiim, it was not craiited hv ibe king ; for it
ai.peareih in il.esnme yenr. Rot. Alii>. 13 Ed.
X, ni. 13, don. tiiat the king that year hearing
•f -oinc piepnniiima in France, comnwiuded
•liipafor three months. CUu*. 13 Kd. 3, pnrs
1. m. 14, that in several countiet men were dis-
trumed fiir not payment of wages for the archers
and otiien that cuarded ihe sea-coasis. It np.
peareih by these records, that both the gnarcl
^ of the 'eH, and the spa-coasw, was done }uita
OTdinutioBein noilram, order made by us and
our council. Hot. Ahn. 13 Ed. 3, m. 15. dora.
the kin? appointed the archbishop of York,
HuEh de Percy, ci of, for that purpose, &c,
Su, my lords, I hate done with the second
ground, that is, that the king is the sole juilee
tif this without his parliament: That the com-
mons ill pnrliHioent have disclaimed to have
any cuinirMin e of it : Tbat in the same yenr,
when parliamenf were bolden, tbe same year
tiicsi: writ* have iisued withauc advioe of par-
~'l'be third thing I did ptopoft Was tlHMe ni-
May it please yout lordships ; To remcniUr
I shewed by charters, aids, nnd a great number |
of precedent!, ihat this royal power was in tb*
kin;: of England before the Conquest: Aad .
tiiui though some were eiempted from tin |
i^ettiiig forth of ship* Ly grant uncu some pic I
lituliir men, or tome particular cburcW; Jtt
these three fuodamenlnl unices of eipediuuo,
repuiring of castle*, and making of bcidgfi,
were alway* eiempted.
I'hen 1 >hewed, by a great numler of pre-
cedents, thill nut only the principnl, Lai sU
the realm, both by sea and land, lialh been al-
ways commanded by the king's writ; fottb*
foriilyiog nf towns and castle!., and the muiage
of towns, the apiiointment of aduiinib of ibe
fleet, and tliose iliat •bnuld be Kuardiun by m*
and land ; the im)uirHngofslups,andamy^ol
men, the ereciiou of beacon*, and di5cliM|iiiC
of torae upon just cause, and by punibh»>C w
tho!ie (liat were refracto^i And nil thit ww
done by the king's coromaod, per ipnw "i''t
ot tier rtgem et concitium, without any aid ■
rtgemei
Ijkmrife) I bkKWuhitBppearW jwlu
, .-..G(.xwlc
lOSS] STATi: TRIALS. \i Chakies I. IGS7. ~m the Case qfSliip-Monei/. [103*
•hips, that ibe kioi; ii the 6ole judge of this de- '
fence: Ttiat ibe king U uut tu be niiKtiuteii in '
the execution of hi> oiiice, aa king; nor your '
lordsbjps u juices, ure not lo be mutruitvd.
1 have iheD shewu out of precedents, thuC iu
thuse j«ar), therein lliera hnve been parlla-
lueuis, upd loiuctiiiies titling the parliameocs,
writs hnre issued ^r ipium rcgan, and per re-
gem et eoacUiura.
I sliaU pnicefd to mnke good other particu-
lars, irhicli I bare opened unto your lordships.
firai, That these precedents that have been
(hewed, and »hicb 1 shall shew unto your lord-
ships, have nut been grounded upon anj par-
ticular covenant or clinrter of custom, but upon
the law nf the land, and upon such icaaong at
are irreversible, and bind bU the king's subjects,
ta well cl*r^7 as laity. For this I shull remem-
ber Onus. 48 Hen. 3, m. 3. The writs do re-
cite, ' quod tuni milites et Liberi tenentes quam
' onines alij, Sec. ad defeusioQem regni tenean-
* tur.' ClnuB. 9 Ed. 3, m. 11, ' pro defensione
• regoi omnes teneaolur." Scot. 10 Ed. 3, m.
19, '. quia cnnyinans rationi, quod oinne) tangit
' per omnes suppurtari debet i* And the same
roll, m. 30. dors. ' ei legiancia ad defensionem
' coutm hostiles ingreasus ininiicor' manus ex-
' pnnere adjutrices, &c.' Rot. Aim. IS Ed. S,
, 1, dors. ' omne;. et singuli tenentur, &c.
,' the SI
e roll, I
nes et singuli ad defensionem regni
- aatricti. Audi thmk every man nill acknow-
ledge himself to be bound out of his allegiance.
hot. Aim. 13 Ed. S, m. 13, dors. ' ex legiantia
' ad defensionem retiui et teslri et vestrorum.'
Snme roll, m, 17. And there be writs unto all
the bishops of En|;laad, ' quod inrenerint
' homines ad anna pro defensione.' Francke
Alinoigne Tenure was no plen against this ser-
vice. Itot. Franc. *6 Ed. S, m. 34. There
Tras a writ directed to the bishop of Cantei-
bory, for the anning and arraying all ecclesias-
tical persons withio his province : The like to
the bisltop of York in the same roll. So it ei-
tcnds to all the kiilg's subjects, as well to ihe
clergy'ai the laity.
. Nay, ports that were obliged to do pnrlicular
lervice, yet in case of extraordinary defence,
that there the writs went out, not only to per-
form- the ordinary Hrvices, bnt services uitra
dtbifum. The Cinque Ports, bv their charter of
£d. 1, were to set forth ^Q sfipe at their
chai^ fur 15 days; yet we find by several
■ t the
s have been of these sliips,
' Ultra Eervitium debitum.' Scot. Roll. 10 Ed.
3, m. 3, 3. dors, and 28. dors, there is a com-
mand, tbat all their ships of 40 tons should be
arrested for the kina'a «enice. And so like-
wise, m, 33, that alT the ships of the Cinque
Forts, ' tani majores quam rninores,' should be
arrested. Rot. Aim. 13 Ed. 3, m. IS. ' Oi
< naves qu« transire poterint,' arrested and
brought to the Cinque Potts.
So then, to tell of particutai rolls, tbat these
auiltbttt tuwDinaia obliged to do tbeaetervi-
; this, under favour, is no ai^nment. For al-
though they beublii^ed to du the sert ice, yet updii
other occasion, the king took all their ships,
ultra irrcifiuDi deb'itHm. Clausi 16. Ed. 3, m.
13, dors. The king «ritcili to divtrs eurls,
barons anil olliers iu this tnniiuer, ' (Jiiod aiaC
' tain citius quatotius puterint pitruti,' beyund
your service, with liur-eand arm;, aud come to
jr town of Neivcasllc u[.on Tyne: so as tbia
ril was directed to all the lords spiritual and
^u>poral, and all thb kjnt^s subjects ; nut only
iih their due service, hut beyond their ser-
ice lo be at Newcastle. 'So yoMt lordshtfis
;e the motives, and grounds, and reasons oi
these writ! are universal; ihey concern not a
particular |iart and subject, but all the king'a
liubjects; and ihey are ' Lcgiantia sua debiU.
So tliat is the first thing I would observe to
your lordships, that these writs and precedent*
are grounded upon the law of tlie land, and
^ot upon partiuular cultoin.
The second thing is this -. that all ibese write
have issued by the king's mandate, either by
the king onlv, or by [he king end his council
without advice in parliament ; of which I ha<«
made a collection ; and it is better for me to
attend your lordships witbal^ than to dla
them ; because they are above 500, wherein I ,
have ilistioguisbed what liave been per Ttatm,
and which per regent el conitUum, and whera
the advice of particular merchants and ports-
nien were required, Scot. 11 Ed. S,m. 3, dors.
19 Ed. 3, pais 1, m. 36, dors. And in these,
the advice of particular men were^allcd to a**
eist the king and his council.
Now, my lords, if before time of William 1,
and since, aud for so many hundred years to-
gethcr, this hath been done; shall not these
precedents make a rule? That precedents that
are not against the l.-iw, nor contrary to th«
rules and rrasons of the law, mnke a law, this
appeareth by 4 Ed. 4, fol. 43.- The lord-chan-
cellor sent forth a writ of error. The judges
took exceptions both to the matter, and the
manner, saitb the book, because it hath been
always so ; the precedents make a law. 33
Hen. 6, fol. 20, an absurd return made by •
sherifl'; yet because precedents to warrant it,
a good 'return. 3 Ric. 3, fol. T, where a duty '
was lo be paid to a corporation of mnyor and
commonalty, the duty to be pnid to the body,
and an 'acquittance to be had from them;
but because it had hetri used the mayor alq(ic
to give the acquillnuce, a good acquittance.
9 Reu. Haines's case; the king shall not part
with his interest williout tlie Great SenI; but
yet a lease for yeata, under the seal of the Ex-
chequer, is good by custom. 4 Rep' ful. 9,
that the precedents of the court are good
against the eipreis words of a statute. Having
so many precedents, I will not trouble yoii any
longer, though I have reserved a special place
for' answering of ohjectiaiis; yet such objec-
tions as fall macerially in the way, I shall give
an answer to, though I reserve tbe answer to
the main objection to tl.e fifth place.
It hatb beau laid, by Mr. Uolborn, tluit
1095] STATETRIAI5, ISCn. L 1637.— TVJtn^afoiMi JMnJJoMpim.w?. [I0»
ther, tbBt when petitions hare been prefrnri,
tbe king; ]tatli not denifd tbe petition npnuh.
M; lords, I »hall ihew, when 1 come to gin
a parliculur answer to Ihrne records and pen-
lions tliW the; have mentioned, chHt noiitidt-
standi ni; theje petitions, this service hitli ben
alwavs cnntinueil : and hr the answer tint be
speuketb of, that tliey have not been deokd;
these are the very words of the anlwer, 'l«
' roy se Bvjtera.' We know whether ihii be
an express dental or no^* So though tbe iitf
took time to advise of the petition of h>s mar-
mont, this is tio argument, tiut that it isanu-
oeri} kind of denial. Besides, in these ntj
jenrsof 10, 11 et 12 Ed. 3, the writs went M
for the shipping bosiness, liir the ro^ poaer.
Then it Wh been said, that wecanmakett
here iHth been a discontinuance of tima ; and
thatsi[ic« the time of 30Ed. 3,Doneof these
writs have issued. Shall discontinuance of
lime take away tbe kiuft's right? If there have
been no use within the time of the memory of
laaD ; yet if there have been an inherent right
in tbe crown of England, sliaU the crown lose
it bj discontinuance of time, contrary to the
rule of ihe law i 10 Hen. 4, fol. 6. Where
tlie king is tlie founder of a bishopric or abbey,
and IS by cominon right to have a Conidy,
thuugh not used, and the king hath not de-
ittHniied it in ttrae of memory, yet the king
shall n<it lose it. Fiti. Her. Nii. Br. f.il. 5. A
writ of right brought by ibe king, where you
must allediie aptrii et fciiin, will not bind thr
king to HlleHgr a Sei-in in bim and hil proee-
nitors : for if once tbe king had a Seisin, pro-
tracts of time shall not discontinue it. 13
Han. 7, full. 30. Tbe statute of Morfmaine
confioetb tlie lord lo enter within a year and a
day ; bnt it shall not bind tbe kins, for he nmv
do it any time. 3a Hen. 6, fol. 36. If a
viHeio doth alien hit laniiB, it barrelh nut ilie
kin;. Plenarty after six months, no plea
rast the king. 6 Rep. no discontinuance of
, if the king hath a right. 7 Ed. 4, 30. If
an uJien and another man purchase lands to|^
iker, and the alien dies, the king shall not be
prevented by survivorsliip : and in personal
good), yon shsU r^se no prescription against
the king. 35 Hen. 6, fol. 37. lliere is no
man can pretend u title to the king's goodi,
for wails, f strays, or wrecks; for no prescrip-
tion can invade the king's profit
But then they say the precedents are not in
all times; for we have not the nn, nor cannot
•bew tliat in all timet these writs have itcued.
— A strange objection in all times; My lords,
it i« a ctsual service. In all times, God be
thanked, not that occasion or necessity of this
itefence. Will yon have us shew you prece-
dents for a casaal service done at oil times ?
4 Rep. ful. 10. If a miui hold to do service to
his lord, to go with him into the war of the
king, this is out of the Matuie of liiml«tion ;
for it may happen nut once in two or three
hundred years : therefore the law doth not re-
quire we diould have n Seisin, for this very
reason, becau^ it is cnsunl. S3 Hen. Br.
fenlty 15. That for bomn^e and fealty, casual
■ervioe, they are out of tbe statute of limita-
tions : ao as now, by the tame reason that they
woold tie.uslo precedent! where theie was no
occasion, by tbe tpme reason the tenants are tu
do honiaite, or go into the wars when there was
no occasion. But besides, he Is much mis-
taken ; these precedents do not end with Ed.
8, 7 Uic. 9, m. 18. 13 Hen. 6, m. 10, 14 Hen.
S, pars 1, m. 14, a ereat number of ships com-
manded then in the^ing's service,
But it bath been said, that the people have
ftlwnys petitioned nniinst it, and there hath
bMn a decrying by the people ; and they have
petitioned in partiameol against it. Ana these
thin^, tlini must he made good by custom.
Bust gather Mnngih by ■ csnstnt. And ftii^
. _., yet it doth not appear that these wi
been put in practice, or that any execulio* of
them have been done.— But the serrice tatli
been done, at doth appear by the monaiaesti
of those times. Then it dntli appear by otlm
recoida, thai the wages of niaritiera h»ve bera
paid by the country. These very years, Rot.
CUus. 30 Ed. 3, m. 6, 7, k doth appear ttal
some parlicuUr inen had jnrticular dncbnps,
either because they were in the king's setrice,
or in Gasc'iigne, or I. red on the se»-coai>s;
that they pleitdrd their discharees, and kad
them allowed for that reasou, S3 Ed. 3, m. IL
So at, my lords, upon Ibis second groo«4
that these writs have gone forth thus co^taaily
in several ages; that there being aucb a aaaba
of precedents, tbe discontinuance hath em
been when'tbere was no occasion. That dn
precedentsof the courts of justice make»i»"i
Bod discon tin nance cannot take a^aj tw
king's title. This is the second thing I da in-
sist opon, that these precedents make a la".
Tbe third thing I shall observe npon dwi
precedents is. That these writs have gone km,
not only in cnses of an actual war, or in cun
of an mvosion, when tbe enemy's fleet bsi>
been upon tbe sea ; bnt by way of preparttiua
befbre-baod, when the enemy meant to ctnie;
.^A ; ntii.Eent cases, »hen the kingnwli'
my danger might issue : bnt in uef
i-Bses wnts hate issued out, will appear. Hot.
Claus. 48 Hen, 3, m. «. The writ, are here m
court. > Cum necesse sit ad d^ensionen rtgni
' esse prompium, &c.' Claus. S3 Ed, 1, ni- ^
there were several wriu directed to ir*"
earls, bishnps and others, de Cdstod. «««■
The words are thus, ' Quia volntnui q««i
' pants marif in com' Eases, &c. conlrt mi-
' micos diligenter cuiiodiend. ibrsan si in p"*"
' illas venire contingent.' 34 Ed. 1. f^""'
brancer in the Exchequer; upon infbmialiw
given, that there were 1,000 men in Fl"?*"
made preporation to come onto Yarmoutli ■"
bum the town, writs sent forth by the tret'""*
and banins er oOcio, to be in readiness m »«
there w«, an iN.asinn. Pat. 9 W- 3, f*"^
m. ae, ivrits directed to »U the {""""^rtJ
tween Soutbanipion and niames, to "e* '".
«hij,i, at il«ir •.m dMife, fi» the betw "•■
1037] :?rATE TRIALS, ISCbablbsI.
fence of the kiogdora ; aud against ibose that
commit deprrda[»iis upon llie sea, as well to
mm of ihu kiiiEdoni, as to others coining to
this Lin^dom. Rui. Scot. 11 & 13 Ed. 3, m.
8. Tlie kioK, by tevenil wtiti, directed to m-
verel c^'roniiuionen in BcvenU counties, redtetl
the proviaion made for his army at land at the
hat pariiamcni, and saith, ' Nos considerantet
' ad cipeditionem prad. tam od impedend.
' Scotos, quam pro custodiend. tnaris, &c.' and
BD comiDBodeth fur that purprise, that ahipg
ihovld be kent out of several counties for
these two causes; the one to hinder Ticluala
from gniag into Scotland, the other for free in-
' lercouree ol' trade. It Hppeafielh, 10 Ed, 3,
that theahips of France were not upon our len-
C0B»t«, but were in Brilnin in France; and yet
the king, upon relation that they hud nn inten-
tion lo invnde tlie realm, did send forth for
the proTJding of thip) in mnsc parts of ibe
realm ; tliis wns only upon infurmation, Rot.
Scot. 10 Ed. 3, m. 30. Ut auditimta i m. S3.
Vt inUUeimntt; m. 16, 33. Quod audit, in.
18, diiis. 12. djre. 5. don. ' in partibus trans-
• mariiiis.' So by these records, this prepara-
tion of ^ppiii); was only upon infonnalion.
Franc, m Ed. S, m. S. ' Quirulgaris opinio
• Te](num nostrum Aiiglia iuvadere,' therefore
comuniudeth sliippine by sea, nud forces by
land. Rot. Franc. 10 Ric. 2, m. fi3, S4. ' Quia
• cerii rumores quod Franc, infra breTc tenipus
• cum msgnis ainiat' koc icgnima invadcre, ic'
commands the cnslody iif the sea and ses-
coastt. So us it doth appear, by these records,
■hat upon an information, or conjecture of the
king, he nmy send forth ibesa writs, and com-
mand his sul'jec'B to he in readineu, in case
that danger Bii|fht hnppen; better bo, than to
receive a blow, and then lo make preparaljon
for defence; we should buy that wit with re-
pentance. ' Prudentissima ratio, quia timor
• bdii, he. prsparavit.' And surely nhen the
king sets thoK preparation* abroad, thcjwt
great armies in adjacent coontrtes, ' qui oocere
' possuot,' great rcafob «e should be in prepa-
ration.
This is not only
wisdom of tintes, policy of
' curere morho,' but to the ronton ol our com-
mon Ian. If a man be in fear, that another
man lieth in wait fur hira to do him a mischief,
shall he stay till be recdve ■ wound ? IT Ed.
4, 4. In this case he may have a writ to bind
him to the peace, IS Hen. 7, fuh IT. If n man
have & warranty for bis land shall he Kay till
be be impleaded } No, a Worrantia ChaitE
lieth till he be imfdeaded. If lord aitd tenont
in anltent demean, and the lord shall require
niore service of the tenant than he ought lo
perform ; thnll the tenant stay till there be a
distrots tnten? No, he shall' have bis Mon-
Etravtrant, Fits Herb. Nat. Br. AO Ed. 3, fol.
45, 46, -and this only upon verbal demand
of service. — Shall then the comntmi law of
Enf^laiid secure the cubject not to stay till a
jn^esent dancer, but he ihaU have his W«mBtia
CiiarU, and UonstnvenijiE bafm dist«M*
o precedents,
' Venienti oc-
1637.— m the Caie <f SA^Mtmy. [103S
taken ; and shall not (be common Uw provitft
for the king, that he in his expectation uf dan-
ger, may make his preparation against it? So
surely thes« precedents are according to reason
of law.
The neit thing tliat I did observe out ufthew
precedents was, that in these very years, where-
in there have been aids granted to tlie crown
' pro defensione regni,' in those very years
these writs have issued out by the ruyal power.
Claus.48HeB.3,m.3,3,dors. Therewasthen«
tenth given by the clergy ' pro defensione ntg-
' ni ;' and yet in that year he did command the
defence of the realm, both by sea and land ;
and that appeareih, Pat. 4S Hen. 3, m. 6, don.
and Claus. 48 Hen. S, m. 30. In the 39 Ed.
1, the king bad given him in parhamcni, ■ pro
* Bubfidio guarra,' a tenth of all moveabla
goods, nhich was to be collected in the 93d
tear, ns appears, Fat. 9a Ed. 1, m. 9. My
lords, thii very year, wlien this was paid, he
commanded a great number of shipping fur the
defence ol tlie coasts, and that appearctb, Pat,
93, Ed. I, m. 6. Writs were directed tA diver*
counties, as Sussex, Southampton, Dorset, &c.
commanding them to be aiding and Rlsistiug to
William Tfaomton, in the taking of all the
ships in those counties, Pat. 33 Ed. 1, m. 7.
' a Com' Radolpho de Salwico ad providcnd.
■ de navibus, ita quod prompti sint quanducunq;
' mandamus.' So to be in reulin^ts wiili all
ships iu those parts, that were of 40 tons. M.
a, some roll-wriis directed to most of the she*
rills of England (o be assisting to John de Bar-
wicke, (0 the chusii^ and lending furtb of
Archers, ' ad pro6citcendnm cum fleta nostra.'
Su as they were not only brought out of their
own counties, but all the counties of Bnglaiu],
' ad praficiscendum.' My lards, this 33d year,
when this great aid of tenths, and part of all
the moveables were granted, Pat. SS Ed. ^, m.
7, the king wriletli to all the arcbbiihopt, earls,
and others, reciting, that he hath committed
the custody of the sea to William de Sloaka,
' Ita quod idem Willielmos vo* omnes,' naming
ihe archbishops, bishops, earls, &c. ' prout ne-
' ceue fnerit.' So as yon see the greatest sub-
ject is not eiempted from these commands, but
should be ' auuliantes, respondentes et inien-
' dentcs.' Claus. 93 Ed. 1, m. 5, don. The
king commanded the bishops of London nud
Norwich, for the sa^oard of the sea-coasts.
Pat. 93 Ed. 1, m. 1. A command to all arch-
bishops, bishops, abbots, e^s, barons, ktii^lits,
and others, ■ commanding them to be aiding lo
Adam de G. ' Ita quod idem Adam compel-
' lere posset quoties neceMe, &c.' So Claus.
33 Ed. 1, m. 5, dan. the like cammands. So
as, my lords, inihose times, which waa 93 Ed.
I, when there was an" aid granted by patlia-
ment, it doth appor, those great defences,
both by SCR and land, were coaunaodcd.
Mt lords, 10 Ed. 3, in a parliament bolden
at Wattingbam, there was a Fifteenth granted
lollickiog for three years, and lO it was recited
in the Record. And it appeareth likewisr,
Pat. 19 Kd. S, m.», ftinS, Cbua. U Ed. J^
1039] STATE TRIALS, 13 Ca. I. 1037— 7\rA7i^«jaBt«JofeiHuB»pAn,M5. [10*0
. m. 38, pars 3, it appeareth, that a Tenth and
Fifleeoth were granted to tlie king in pnrli
mcnt ; and tliis was < turn pm derenaioiic quam
* arduis negotiis." 12 Ed. 8, The prelates,
lords anli commons at a parliaincnl hold*
Westminster, gave the king 10,000 sacks of
wool, snlij to lie given ' pro defensione regni,'
. 89 appears Hoc. Aim. IS Ed. 3, pars 1, m. 1.
In tlie tuine year tliere was granted likewise
< pro defensiune regni medietatem lanamm,'
the moiety of all their wool, m.3i, 33. Intlie
laiue year the clergy, ihcj gave the ting in par-
liament, ' inedtetatem lanarum usq; viginL
' mill. &accar.' as appcaretli. Rot. Claus. Is'Ed.
3, pats 3, m. 13, Rot. Claus. 19 Ed. 3, pars 9,
ni. 1, dors. And in this year the king collected
a Tenth and Filteenib, tint was granted to hiui
bytlieUiiy in parliament for two years; as
■ppeareth, Claus. 13 Ed. 3, m, 30. And be-
' aides all this, the clergy gave the king a I'enth,
Clau!. 12 Ed. 3, pars 3, m. 30. These I cite
the more parlicularly, because no memory of
them in ihe printed statutes. Were all these
■ids granted, 10, II, 13 Ed. 3, ' pro defen-
' sioue regni ;' atiH shall the king in ihase very
years send forth writs for the defence of the sen
>nd kini-dontp Andmay ntitthekingdoitnow,
when he sceth such greiit cause ?
Now, my lords, in this latli year, when all
these great aids were granted, Rot. Aim. VI
Ed. S,pars 1, ni. 13. Walterde M. was appoint-
ed admiml of the fleet towards the north, and
app»inied commissioners ' nd assidendum villas
' bonis et caullis ad cantribuendum, &e.' and
conimandeth all sheriK and officrrs to lie aid-
iag and assisting. - So in this Itecard it doth
appear, that In these 10, 1 1 and 13 years, ship's
mnd forces were commanded. Claus. IS Ed.
their goods seiwd, and persons imprisoned, if
they refused to contribute towards the charge
of shipping. Rot. Aim. 13 Ed. 3, pars 1, ni. 3.
A commission to William de B. and others,
' ad assidendum oinnes Itomines juxta stalum,'
■od to atiie (heir goods and' chaiiels, if ihey re-
flised to coDtribute for the wages of iDarmers
for the ships.
So as your lordships see by [liese records,
though there be Aiils, Tenths, Sabaidies and
Fifteenths, granled by the clergy nml laity ;
yet in that very yenr, if an eitrnordbtiry occ.i-
lion comes, though ships not upon the sea, tlie
Ling hath commuiided. the defence of the sea
and land at the charge of the counties. 1 have
done with the fourth particular.
The Al'ih particular is this. This aid, nnd
these contributions, they have not been requir-
ed only from the maritime tOKDi, but from the
inland counties, ' per lotnin Angliam.' And
this is materially to be iasisted upon, because
we are now in an inland couoly, in tlie counlT
cf Bucks.
My lords. That this wot dona before the
Conquest, your lordships have heard. For Al-
fred, lbs first monarch, anno 83r, 'jussitCim-
^ ' bu, Hk. per totant Anglioin.' Auer. Mene-
vensis fol, 9, Wigor. Flaren. 316, Huntington,
351. That king Ethelred dkl ibe like, nnoo
1008, ' per totam Angliam,' every 310 iiidet
of land to find one thip. Floren. fol.9,Matib.
of Westm. 387, lluiitinglon, fol. 360. The
decree or cauncd which was held at H. about
the 30th year of king Ethelred, was, that ships
should be prepared ij^ainst Frailer. And those
laws which are reineinhered in Lambert, were
before the Conquest, cap. 10, fol. 106, ' Quod
' pTiEsidii, &c.' So it was general and univer-
sal throughout the realm, concurring with those
antient precedents and council, since the time
of William the 1st. Claus. 48 lien. 9, m. 3.
For where a record li to be applied unto seve-
ral purposes, I must mention that record afiain.
It appeareth by that Record, that Bedford-
sllire, vfhicli is an inland county, was charged
with the guard of the sea-cnist, and paid tor
wages : Same Roll, m. 3, inius m. 3, dors. Hut-
Und, Uifordihire, Dorsetshire, inland countie*
chBr|>ed for the same service. Pat. 48 Hen. 3,
m. 7, Cambridgeshire and Huntin^tunshire
charged for the like service, %ud that ibej
should do ' prout per concilium nostrum ordi-
' natum fuerit.' 34 Ed. 1, king's reroembranccr
in the Exchequer, Rot. 77, 78, 79. Tide • de
' associando pro cusiod. maris;' and wnta
went out lor ships in divers counties ; and
amongst others to Bucks. Pat. 36 Ed. 1, m.
31. When ihere was a complaint that the
subjects did suiter upon undue service, the
commissions that are directed for enquiry there-
of, are directed, to all the counties of England,
ns weU inland as maritime. Pat 33 Ed. I, tn.
5. That men, to furnisli a fleet, were drawn
and cominandcd from (he most parts of tlie
kiniddm. Rot. Scot, M) Ed. 3, m. 14. Inlaad
counties charged witli shipping for the defeiica
of the kingdom, og Cambridgeshire, Hunting.
tonshire, Nottinghamshire, and Derbyshire.
Claus. 13 Ed. 3, para 3, ra. 14, dors, and tb^rc
Oxfordshire is charged with Custod' Maritim.
Rot. Scot. 13 Ed. 3, m. IS.dor^. Bwitbrdshirp,
Bucks, your county, and Derbyshire chained
there with the same defence. Clans. I Ric. t,
at. 18. There Cambridge and Huntington
were to provide a barge at their own ahaTie ;
and jet seafaring men there were none. Wrin
were then also directed to Notlinghoni and
Derby ; thouih tliey had no seamen, yet tliej
bud n
Hot.
Franc. 7 Hie. 3, m. 18. The king sends bit
counties of England, as well in-
reciting thai tlie kine of
th an army into Flandtis,
and that Caluis was in danger; and com-
mandech all knights, esquires, and archers, and
every of them, accoidiiig to his estate and IW-
:ulty, to be sufficiently arrajed and armed,
ind come to the port of Sandwich, ' ad proG-
ciscend'. My lords, in this Record there was
mentioned Bucks, Bedford, Huntington, Cain-
bridie, Nottingham, Derby, Leicester, Rutland,
Northampton, and Berks, all these inland
coantjes. The words of the writ are, ' Quod
defeiuiooe leg^, &c.
toil] STATE TRIALS I5Cha8lb*I. IQ51 .-~in ike Can qf S^tp-Sfmuy. [lOiS
CUui. 9 Ed, 3, m. la, ' peromnw supportari.'
Hot. Aim. IM Ed. 3, in. IS, tel 90, quod, &c.
AllandevcrjorDur kin^jdom, oocof (!ipir aJle-
siBD(», :o be renilf [i> defend tlie rejllu. 13
Ed. 3, dors. ■ great number of ^liips.
B^ nit which it dotli nppear, >im; Tb>E the
lerFice was cominandeil Irum those iniDnd
couniiM. Secnndly, That Il>e n^me reasuiii
which are giveo tii hind Ihe'inlanil counties,
kre given ti> biiid the maritime counties, Pat.
S8Ed. I.M. 6, r.ir the Inking ofshiin in Sui<
te>, Devon, Middlewi, and aiher counties. If
to be tlie mariijme ciunties be in dunger, surely
the inland couiuits cannot be in salcty. We
arc in an inland cnunty; uid the entiy ofun
•neni; upon any jjaitot'ii, eoitcerm the mSttj
of us all. And by die rule of the Inw, every
oPe that is tu reccire a benefit, is rogive a con-
tribution. As the cute of IS Hen. 7, tbl. 13,
all feutfees, wliote lands < ere liable to a stiitute,
the one thvll have cuniribuiion agninst nuo-
ther. If four nr hve cof!,nizorE In a cngnlzaiire,
all shall have contribution one a|;ain9t naothcr.
40 Ed. 3. Parreners, upon whom ■ warraniy
descendeih, they shalj be equally charged. If
a man bind hiinseifnnd his heirs in on obliga'
in, having lands partly by his taiher, and
3 Rep. fol. 13, Herbert's case. — So I go op-jn
these teasnns, that it is consonant to reiiion of
htw, beside] ihe&e precedents, that where a
danger is to all, and all receive a benefit, all
are to be equaJly charged.
My lords, to illuiinite it by further reasons,
that though the inland counties and maritime
counties l>e charged, I find thai the parti, by
thecbartetofBd. I,<vera to hnd S2shipi. 1
find that when the necetiity of the tr*ice did
reqaire it, then all their thipi were seized in the
king's service. I find likewise, ihnt when there
hatli been » disability in the port) to nerfbmi
tha service, as now th«y are, for iluu tlte mnin
part of the trade was in 'tlte part towtnt, but
now it is gone from thence, and gone to Lon-
don ; and few ports have the trade, but Lnn--
don, Newcastle, Bristol, and Hull ; and ihull
i( not now be re<|ulrrd i^f the. inlnnd couiitin,
since there isa disability iii the purts? Kot.
Franc. SI Ed. 1, m. 33. I find there, that
Plymouth, and luine of the port-IDwns, did
Ijear more than I^ndon ; for Piymoulti found
'4 ships, Dartmouth 6, Bristol 4, Newcastle 3,
Norwich and Yannouih 4, Lonilon 2, Hnille-
Foole 3, Sandwich 2, Dover 2, Rye ' 9, Shore-
ham and Arundel {|, and oilier places tbund but
one. It appenrelh. Rot. Aim. IS Ed 3, m. 3,
don. ibat Yarmouth furnished, at their own
costs, 4 ships, Kiogaton 9, Boston 2, Lynn 2,
Harwich S. and Tpswich S.-
My hirds, are these ports able to furnish the
kin| with &o maoy sliips in ihoe dnys to do
■(heir service } Tbe wealth of one pnitsman in
those days, wns worth the wealth of a whole
town now.
Admit the maritime towns were bound to it ;
^t if there be a foiling of tliair nbility, (hat
they ctinoot do it, shall it notf1stwliere,be ce-
quircd .' I'tiHt it is ngrec itble ti> the rule of iha
luw, before any coin miss ions of sewers, where
particular men are bound to defend tiie sea-
banks, yt t before any alnlole, in caiie the man
was not able, ibe service ivas required from '
Ihectiunry: for by it iliey might have either
gain or loss. This appearcth by the rules of
the ciinimon law, before any sttitute, in case
He):isicr lol. 193. ' Quod dislriiigut omnes,
fee' when one imin wns to mnintiiin the banks
BgaiDSt the sen; if not able to do it, ihe rest
that hnd benefit by it, were to be disti^ined lu .
do it, 5 Rep. fol. {10. 10 Itep. fot. 140, 141,
the caseof the Isle of Ely agreeable, that all
that have ' salvatinuem et dumnificaiiouem'
shall contribute. — To iliis purpose ave those
twn records mentioned by M>'. Solicitor, Rot.
Pari' 7 Hen. 14, m. 18, thnt where there «na a .
subsidy granted to the ting filr the defence of
the reidm, it was assigned lu mercb^nCs, yit
with a salvo, nnless roval power came. Itnr.
Franc. C Ric. a, m. 8, 'cetUin merchants had
the custody of the wa, encept ' regalem po-
So the conclusion is, if an eilraordinnrv de-
fence, tliere may be no cause to go into the in-
lnnd couniies ; but ifn royal powir, or extmor-
dinary danger, though doc imminent, the
king mny require nn eilraordinary contribu-
tion, 'per tolnm Ai^liam,' from all bis sub-
jects.— But this hath been objected nuninst,
Hnd sorne rtxordi voucbrd ; that is, sny they,
we will shew you many rirecedents, «liertii>
' navnle snbsimum' Imth been required from
inhiitd counties, and they have \>een dis-
chnrged thereof, as Pal. 3, Ilic. 3, pars 9, m.
49, dors, ihe town of Beverly petitioned, be-
cause they were to contribute, being an inland
town, townrdi the finding of a ■ihip with the
tnwu nftlull, nnd were discharged llicreof. —
This is Iriith, but not the who'e truth : for tba
town of Beverly was discharged by reawin of «
charterof exempiion grniiied unto lliem ' iri
bonorem S. Jobannis de Beverly,' the kin^s
confessor; upon thiit chatter they were dis-
Tht^' hnre objected likewise the town of
Bodiflm, an inland town in Cortlwal, wal dis-
charged ' a cusCod' maris :' For this, CInus. 13
Ed. 3, pars. S, m. H, was voached f.>r it, that
the town was discharged of this contribution. —
For answer to thar,'it wi'l apppar, thai one
Trtissel wns then admiral of the Heel, nnd wa*
by bis coniniissinT) to be furnished from the
pons at tbeit own chfli'^c f<ir ihree months.
My lotds, this apppeai^, Rol. Claus. 13 Ed. 3,
pars 1, m. S3, and so ibat town, an inland
town, was D) be disclnrsed. My lords, like-
wise there were other discharges ; upon this
reason Norwich wns disclinrgeil from finding of
men ftr manning of ships, because the ndroi-
ral's comioisiion did not wnrrant it, Hot. Scot.
10 Ed. 3, m, 15, for it only extended to the
ports; hut yet- Norwich wns charged to linil .
ships, CJans. ]3 Ed. 3, pars 9, m. 14. So Col-
chester was discharged for finding of aEhip,biV
lOJS] STATE TRIAlfi, I3Ch. L l61i^.— The fuagagaiiut John Hamp^,aq. [1014
il »n$ because ihejr yttie ooc H'ilbin the
of ihe writ, as appeoreih, llot. ITaui. 13
pars 1, m. So la tell ynur lordships h st«ry of
A great number of Land lenures discharged ' de
' cus'.od' maris,' aiid uol lo give jour lordships
the reason, it is nothiaic to the purpuse.
So, mj lords, having veriiied these £ve'poincs
by ihe precedents, and justified them by these
reasons, and aniuered ihese ubjeclions, I shall
now coiiie to the sixth matter upon this record ;
and that is, though no caute be declared iu the
writ, no (ttinger manifest, nor against what ene-
mies ; thai yet tile kin|; by hii writ) haih com-
lutuidud ^hippin^ for defence of sea and land ;
and in the king\ivisdom the danger halh been
reserved in Us breast, and
been so, that it liath been reserved to the king
liinisiK', and those that he did depute to lake
care theieot'; tliis appeateth, Rot. Claus. 11
Johnii. m. 3, the l:ing directed his writs to Her-
bert, with a Mandmnns to make ready oil ships
for our sen'ice, when ne shall command ; not
B word of the cause declared, or an enemy pro-
clainieil. Tlie same Roll, m. 0, the king by
writ, directed to seccral pari i, causeth all sliips
that could carry six horses or more lo be sent
onto PortsinnuTh ; and tlie like writs were di-
rected to other ports. Rot. Pat. IS, Johan. m.
4, the king appoints a guardian upon the sea
coa'.ts, mid coinmnndeih all men that tliey
should be intiiuUnlei ; and other writ* in the
laine Roll, directed into many counties with n
M an dniuus, Claus. 17, Juhan, m. 7,dor9. Writs
for taking of ships, and bringing them into the
Thames mouth, nithont shewing any cause: all
tliis was done in the time 'of king John. In the
time of Hen. S, Rot. Pnt. 13 Hen. 3, m. 9, a
writ commanding the sheriff of Kent find Sussex
to arrest alt ships In those " '
Porismnuth, to be ready to j,
we shall command. Aod it appearetli in the
same Roll, that ihese ships irere able to carry
but si» hurses. So Rot. Claus. 14 Ed. 1, m.
t^. To our bailiff of Portsmouth, and keeper
of our navy, to make ready one goiid ship, and
lo be ready lo go in our service, wliither and
vihcn we shall command it. Rot. Clnus. 93 Ed.
1, m. 5, dors. The king declares that he will
huvc the sea eoasta in Essen guarrted ngainst the
enemy ; and there commandqth theoi to b<
obedient to such an one, who hod the custody.
I^'t. Pat. as Ed. 1, m. 9. The king writeth
to all the atchl'ishops, bishops, sherifls, kn^hts,
and others, to be ussisling unto \Viiliam de $.
nbo had the custody of tlie sen. ' So as by all
tlicse, it appearetli the kieg did give no account
t» his snUect», either of ilte service, or tite time
when. Rot. ScoL 10 Ed. 1, id. 13. The king
commanded all sliips ^> be arrested, and men
nnd marinera to he sent to the admiral of
ilie tleet, ■ ad profici^cend.' The same Roll,
m. 5, dors, a matter lit tor the council, and not
for the people to know. Same Roll, m, SO,
that they should do ' proat nobis,' fiic. the king
oweth uu accoDBt to bit lu^ccts of ibcM ^ogt.
94 EJ. 1, m. 19. The king having commanded
E. S. to take up 100 ships fit fur his service,
commandeth the sheriff of Northumberland and
others to be asaistini<. Seme Roll, m. 17. A.
command to the same effect, that ail ships sboold
be taken between Lynn and Berwick. It was
so likewise in the time of Ed. 3, Pat. 9 Ed. «,
pars. S, m. ?6, ships taken up at the charges of
tlie inhabitants, to defend tire sea against male-
luclors and pintles. Rut. Claus. 19 Ed. S, m.
IJ.-dors. Writs directed to the mayor and
bailiff of Snndirich, to make re»<y all ships
within their port of 40 tons, ■ lla,' &c. tlwt
they be ready within three days warning to gtf,
shall more fully declare ; but the serrice
HS to be daiie, not meniioned. So it ap-
peared by other writs to other towns in the
" '1, 17 Ed, S, m. Jl, Pat. 14 Hen. 6, m.
;x quia ijuibosd' arduis causis,' Ac-
doth assign John Hoxham to take up all bar^e*
of 10 men and upwards. — So in all these times
of king John, Hen. 3, E. 1, E.9,£. 3, and Hen.
" rritj have gone out generally ; that the ser-
: hath been concealed ; and fur instruction,
ihey were referred to the council. — It standetla
m, for resolutions of war are not to be
GommuniciUed ; his majesty hath a separate
council of war from the body of his privy counciL
iw, my lords, for the objection that hath
made agaiasi the first writ of 4 Aug. 11
Car. ttuit is, that the king hath not declared suf-
ficient cause for the issuing of this wHt; The
king hath not commimicated to J. 3. aitd J. N.
what the employment must be; be must satislir
[he counsel at the bar, which be ouiht not>u>
cuminuuicate to his privy council, but is re-
sen'ed for hb council of war. — This is a writ to
command obedience from bit subjects, and
upon such reasons as may satisfy any reaionaUe
man ; and if fewer reasons, it lud been the bet-
ter agreeable to all former writs. — For the nen
metier out of the precedents, which is, that
during the times of the sitting of perUaoieots,
these writs have issued out by command from
the king, I have made it good upon my fonncr
liead. .
The last thing I oliserve upon the precedents
was this, that there was no dnnse, no particular
in the writ of 4 Au^. 11 Car. bat was warAnted
by many precedents : and that in this thing tbe
king doth hut * jnbere per legem.''
First, for the direction : It is, as in this writ,
sometimes upon one, or ' probis hominibus' of
such a county, someiimea the direction is to
limes another : nnd of ihis of the preccdetiU
ihemselvei, when your lordships come to see
them, I shall speak. Tliey would have the king
descend so Inw, as to give them a reason whf
he doth it: some reason are expressed in IM
wrii ; ns ' quia periculum immioens, quia pro
' defcnsione regiii, tuitione maris, secnritate
' suhditorum, satva conduction e nsvium,' &&.-
My lords, all rhese arc expressed in tbe record,
9 FjI. 3, ffl. 19, Scot. 10 Ed. 3, m. 30. ttM.
Aim' 1! Ed. 3, m. 1, B«. Aim' IS Ed. S,in. 13.
I find in iheM wtiis tho nnc Bktter, paira of
Goo;;lc
1045] SJATE TRIALS, 13 CHuiLEa I.
auesscDCnt, sometimes leries h; distress and
imprisanineQt ; uaj, srizuce orkLndt Bod tene-
ments, goods and ctaatdes, that are expressed
in former writs ; and, that it was nt flif chHri-es
of [be counties, botli inland and mariiime, this
ap^areihj Rot. Sent. 8 Kd. 2, m. 9. ' De Na-
' vigio providend.' Pal. 9.Ed. 9,m. 96, pan. 3.
' De Navigia proridrndo pru Custod' Maris.'
Manj more of those, Scot. 10 Ed. 3. That ihe
wages of tlie men that went in the ships, and
. guarded the coasts, were at tlte cJiar^e of the
county ; this appenreth 10 Ed. 3, m. 2, dors.
&i. Men appointed and sent to Portsmoatli,
nnd they refuse to ep wiihout nnges; but a
comniand cnme from the tinf^ and commanded
the cuuntiei to pay them wnges. 10 Ed. 3, m.
SI, dors. And his predecessors not In bear
anj charge ivhatsDerer, though ' pro defeiisioae.'
R-it. Aim' 12 Ed. 3, pars 1, in. 2. Thine of
Ljrnn, who refused io cnntrihute towards the
charge they mere nSsessed by the . conuDission-
ers, 'jailaquantitaCeni,' were compelled to ron-
tribute; so Hot. Clnui. 12 Kd. 3, ro. 8, the
like ' pro custod' maritim.' I mi^ht be infinite
io tliese psniculam, bnt I (vill not trouble yoar
lordships.
Here they have made some objeclioiis ;
though to ojiswer the main objection, I nm not
yet come. They say, this power of assessing
the people for sums unceriain, ou^ht to be no
more than escuage uncertain, and must be as-
sessed in parliament: and ihit
defence, ought not to be by c
the king's writ. First, fbrthe authority, which
is Littleton, he saith, fol. 30. ' Que communiter
* dit que escuage serea assesse pur parliam'.'
— i do not find by the Register, where liiese
writs ore; neither do I find ihem erouiided
opbn anv act of parliament. Some that nre
grounded upon acts of paiiiament, do recite
Ibem. But what ifit he by act of parliament?
Aserriceiliat it [obe doneby the tenant to his
lord ; what if this be sn, that it must he as-
sessed in parliament? Your lordships know
that the tenants inust do according Eo the origi-
nal dutie^ ofibem. And if this be, that the
lord sh^l not assess them but in parliament, is
that an argument from ■ tenant to a lord in
this case ?-7-This is a service commanded not
by teuure, but oy a king from hil sul^ecis;
ihigis suitable to the reason of law in other
fiases: for those ancient aids, which the law
doth require for the making of his eldest son a
knight, or ' pur lile marner ;' are not those
certain at the common H" ' Must there be an
act of parliameut'to assess those aidsf The
books are otherwise. — But the king at the com-
mon law might reiiuire an aid uncertain, and
might assess it as he pleased. Glaniile lib. 9,
cap. 8, Brit, fol, 57, cap. 37, Bract, lib. 4. cap. 16.
So as at the csmmon law Ihey were uncertain.
11 Rep. fol. 6fl, D. It is said there, the statute
ofWestminster 1, cap. lli, which puts reason-
- able ud io certain, doth noi bind the king ;
ajbrliari we mtist not bind hira Co a certainty
for the defence of the realm. No man can teli
wlnt the preparauon miut be, or the charge
lG37.~ia the Case 1^ Siip'Money. llOiH
thereof. If tbfv can shew an net of parliament
that limits the k'iiiglbr thedefenceuf Clie realm,
they say something.
But ihey sny the sheriff is no proper officer,
not sworn lo oecule tl.is writ This is es wide
as the other ; fnr, my lonli, the slieriffit sworn
to eiecute all writs that siiall be delivered to
him for the king's service. And sarely this
writ, if it come to him, he must at his peril
enecute it. — First, Tl>e direction of ihose writs
have been many times as well to the shetitTs at
the commishioners. Kot Scot. Ed. 3, m. 13,
Clans. 15 Ed. 3, m. 17. The king commandeih
the sheriff of many countiis to fumisli men niib
arms, victuals, nnd otiier necessary provisions,
both for seannrtlnrid. 33 Ed. 3, 'm. 5, cl"rs.
21 Ed. 1, rot. 7, 9. E»' Re.nem' Itetii 11.
The lands bf the sberilfs nnd orlier olKi;ers » ere
extended, because of their neuligence in doing
of their duties concerning those writsf 35 Ed. 1,
£x' Remem' Regis. A commission went out
to enquire of the executiun of the ulliccrs in the>
duty oftbeirplaeeB.
Besides these writs at the common low, tliis
is seconded by the authority of the common
law, Register 132, or ISf. Tlie writs that go
out lo the sheriff (for they go out to the sherilf
as to commissioners) it is left to die discretion
of the sheriff or commissioners, as occnsion
shall rrquire. Register 191. Bre Da Partiiioiie,
before any statuie was made concerning thi
same, that writ went out generally to the slie-
rilF ; so that in all limes and ages it hnih ever
been in these cases, where no certainty, left to
the discretion oftheiheiiffand commissioners.
My lords, for tlie manner of the letying
' per districliones,' and by inipriaonmcnt of
those that do refuse : is this neiv i It hath been
BO in all the precedents that tiave been.vnuclied,
bolh by distress and imprisonment. For ibe
distress : if the king makes a corpor.ilion, and
gives lliem power to ordain for the common
good of ihe drpornlion ; and if ibey make an
order for the payment of money, and that those
ihat do not pay the same, shall be distrained;
is nut this adjudged a (tood ordinance? 5 Rep.
fril. 64, Clark's Case, Trin. 7 Hen. 7, rot. 3.
There is a benevolence {^ranted lo Ed. 4, for his
voyage into France ; one T. R. did deny pay-
ment, and he was distrained for his proportion.
Tiiey eicept to the penaltv of the wril. Tlie
pennllies of farmer writs fiave gone higher.
Inter Common' in the Exchequer, there was a
Mandamus to assess those that were eniployyl
in the provision for shipping ; and the Manda-
mns was, ' sicut nos et Ironorem nostrum et
' snlvationem regni diligitis.' In that roll thi*
is so often remembered, Kot. Scot. 10 F.d. 3,
m. 11, dora. 'quod, &c.' their lands, goods,
and chattels to remain seized in our hands.
And m. 3, under pain of forfeiture of life: 11
Ed. 3, m. 3, to cast those in prison that did
refuse. Rot. Clsus. 18 Ed. 3, m. IB, dors.
Writs directed to Henry Hussey, and otliera,
to punish those that effused to contrihute ;
and to imprison them, and to seize their lands
and goods into the king's hands. Claut. 13
1047] STATE THIALS, 13Ch. I. 1037^:
Ed. S, pnrs 1, m. 3G, don. to sc>ize into tlieir
hnnda iheliiLi<Is mid tcnementi of the refusers.
R»l. Franc. VI Ed. 3, pan 1, iii. 11, tliu king
cuinmnnJn eli\]», under pain Id Inse life, nnd all
ilieir estnle. Itoc. Franc. 10 Kich. 3, m. 33, l.i
imuiiiOn lh<ise ihut are cuiitrarv, uiider forfci-
liireofull they liud. So ns vuur lordships tee
Mr. Holburiie ivns tory far miEtnten.
My lorc<R, in llie next plnce, they have laid
hild on tlie distaiica oflimi:: thoy iiay llierc
were seven u' Oil tlis l.emceu ibe -Teste of the
writ, and the time of the rendezTous ; that the
king ill thiit time iiiiuht have culled a parliu-
meiii, aii'l tlicre might have been nn aid
^rantH, and the service perlbimcd in a p ir-
linmenlury way. — But tlioy may remetnber the
' 40 dav^ between ihe Ti'stcand llie returuor
the writ lur suiiimonin^ apuihament ; then tlip
lime spent in presinnng of it 8: eiker ; the 50-
lenintiy D9cd before tliey bet^u their fjand cuin-
niittee; their reiidiiij; of a hill tlirire ; tlie de-
bate nbnut pa'^ing of ir in both hnus"<i before
it be i^nintfd ; aud after alt ihi» be dime, and
tlie parliuinent ended, a time for the krving of
the miiney must be had ; Hnd mhen it is leiii'd,
time fur [lie return of it; aod when it is re-
turned, time for tlie eit)iending of the inoncy ;
and the pripnration will i;n slowly on till the
money be returned. 48 Hen. 3, to. 4, linn.
Tliei'e viiii a cuaimnhd fur guanlioK of the aca-
cnnsts, Clius. 88 Ed. t, m, 5, dors. The port
of Vitrinouih cnmmanded tu find ships tor a
cartnin lime. Rut. Scot. II, 11, 13 Ed. 3.
TIjL-yareput dmtn in that roll, 111, 8, ihnt there
was a. cuminaud for ii Narule Subsidium for
three or four months.
So as, my lords, for the time of prepareiioD
and fur the lime of the continuance, it hath
eter been riferred to the wiv torn of the kine.
My lords, for the Spanish invasion, that hafli
been to late in our memory, I tind by the
Looks iliut arc kept in the counctl-clmmber,
that the prepBrnlions «ere in October I5PT,
BKiiinst ihe coming of the Spwish fleet in 1568,
wVh did not set forth ull June: I find no
parliament called that year. And hy letters
and orders from the council-board, ihoie i-hips,
and diTince tliat wns made, was ad tumytam
of the subject.— So, ray lords, hy this (hot
baih hciM) said, it doth appear to your lord-
ships, that there is nut any clause in this writ,
eiilirr for the din'ctii>n, mniivrs, mandates, or
ptiialtits, hut lire warranted hy former prece-
dents in B higher decree.
• My lorls, tiie>e nii,'' the" precedents that I
^llve collrrted, and reiluced to IhiCse sevrrai
^eHd,. 1 shull nu» remcmlier to your li>rd-
chips divers otlien. And in the first place
Dhaeivc, that Wilham 1, catne not to iibrpi;[ite
■ny f^nie'rtuw, but was sworn 10 observe ' An-
* tiqiina leges Anglicanas,' that appeareih in
Lambert, fid. 13^ prout. S<i every man l)y
this law, that was but a cnnfirmaiiiin of former
liiws, muH provide ' pio viribui ct facultati-
I find I7 the gnnt tlmt Willinm 1, m^de lo
)iit sbbe^of pattel of hisonn ibuiidatiun, a
Jlic King agfiintt John Hiwipdtnia^. [lOlS
charter to be free from Daiiegelt ' el onintbaa
' auxitiis,' Ifiheyliad not been freed, they
had been subject. I find Pat. 7, Johon. m. 3>
the king authorized Walter Scot and oilien,
' quod omnes naves, &c.' which ibey sboukl
find, to airtst, and command all to ussUi, ■•
they love us and our peace in our realm. 11
Johan. m. 0, as yuar lordsliips, hare heard,
all the sliips were arretted, that could cairy sis
horses, and to be at Portsmouth. M. 2, all tlic
sliips in the port w(re logo in his service, oith-
out expressing for wliM, and unlade. Clau*.
13 Ji>han. in. 7, dors, commaniled aU-ships to
be brought into tiie I'liamci inoulli. So here
it. So in lien. 3*s tuui'. Clans. U Hen. S, u.
12, don. nUsbipstHkca that could carry siaieen
horses. C'laus. 15 tlen. 3, m. IT, dors. Com-
mand for the furuishing of nrnis, men with
victuals, aiiit other provisions for furiy days.
And here was t]i« like comuiond tu therifis in
several counties. ClnUI. 36 Hvn. 3, Ll« king
commnndeih the men of Yarmoulti 10 hate
their ships ready wiili men and arms ; the same
roll, Co bad ten ships 10 go to Picnrdy. Pat. 4S
Hen. 3, in. 3, d>.is. Writs to the aevrral pon-
luwns, that no ships should go beyond seu, but
all to >tay at hauxf, M. S, dors. Those that
returned from guonllnit the sea-coasts wiUiouI
leave, were punished hy seizure rif foods and
chniula. M. 4, same tull, dors. Provisioii to be
made till lurihei orders be hud. So it wa» nut
c'lnfined to time, but occasion, as nerd sltould
require. Aod there be divers Olivers in the
time of Hen. 3, upon other occasions, which I
li.-)ve remembered. In the time of £d. 1, 91
Ed. 1, 111. U3, it appeareih there, that all tb*
piirt-tuwns were appointed by the king and
Ills council, how many ships every one of ibeta
should sec forth. Itot. Vns. 93 Ed. 1. in. 11,
dors. Tlie king of England in thnt writ itilMfa
himself Doniinus Rvgni Scotiie, &c. and sendt
his writ to the king of Scotland, to let him kiMw,
the kingof Frunre hadiaken part of Gascoigoe,
nn inberitiDce of the crown of England, that ba
should, * in fideeC brHuaaio,' beatl^ndon with
horse and arms, &c, Thi* writ isvtry obsen*
able, the king o( Englnnd is Superior Dumion*
.Scoiiie. A uari of Gascoigne uas then loM.
The, king of Scotland was required by (bii
wiii, as well as requested, (o giie him aid fer
Che recovery of thnse |>rouiids taken bom him
in Giiscvigne. My lords, this power ii not con-
fined only to England, but it rcachetli, at Great
Lnril, iuta Scochiiid. Also into lielaod. Vase
32 Bd. 1. m. 5, dors. The ting by hit writ
commandeih divers carls, Bjid Others in 'E"f-
land and Ireland, to du the like, to send men
to l^ndon uith bnrsi- and ^rnis. The same
roll, m. IS, dots. All lliat claim to lie of
the liberty uf ihe portsocoinmanded. Pat, 93
Ell. 1, m. 1, S. 7. All ships of 40 torn were
to be fiirnisbed and provided lor the king's sei^
vice. Claus. S3 Ed. 1, iq. S, even man- it
compelled to contribute. Tbe snme r»)l, m.
4, iliuse that did not inbnhit maritime towns, yai
if tbey had lands tbefe, they nuit coptribuC^
IWS] STATETRIAI^, IJCiiablesI. l6iT .—in the Cate qf Ship-Moiuy. [1050
rrsident or not miileni; within or witbout i.iie
lib«nj, ail mutt cuntribute.
M; lurds, in that writ, which ia Claus. 93
Ed. 1, ID. 5, dan. I will obicrve rhe!>e tliin|;s :
1. A comniBiitl to all bisboiit, nbbots, lorHt
•pirituiil and temporal, 'qund tint intendeatea
' eC resfuiideniea ad ciutoJiam roaris.' S. In
continuent causes; 'causa, Sic' S. The unt
•aitb, ' tjuodomoes adtu-hiil,&c. lecundumsta-
tum, &c. ad traiufretanduin cum nobi* ;' and
possessionaf goods aad lands Lobe taken for ihe
cuitody ol'tlie sea, ns in former limes they wers
ficciu'oined : so it is to be dune ia thi^ manner
as in times piist. 4. 'I he writ nia directed to
several sb^riAd, ' per curpuia, boua, et terras,'
to di'lmin.
Next, 2* Ed. 1, m. 15, The king cominnnd-
ed the arclibishiips, bishups, barons, and all the
commonaltt, t>i defeDil the iiiaritinie parts.
CI.1II9. 94 I:.d. 1, m. 19, ' pro custodia marir.'
Theie "b» aootWr urSjniniii dp fencer, which
I rcfmeinbered befnce. 21 EtI. I, rot, 70.
AiiiiitwTol'theliLr, Eit' Ueniera'Eegii',C-laus.
Si Ed. t, m. till, dors. The king iiiodemuth
the eitieacei. of the country when the dnneer
ceað. Chius. 35 Ed. 1, m. la. The king
cumiDdndetli ilie ^UttiSt of sevLtal couniiea.
Olid oliiers, to bnag all tbe ships to be rendy
for our tcrvice, when ne command. M. 36,
Tbe lilie coDuDAnd. ' Decustudia niarit.' Pal.
31 Ed. 1, in. 90, power given I; Tliainus de B.
-to taise forces iu Ciiinl>«rlaDd Id nsi-.t the
Sciit« ; and those that did rrfiise, to seixe their
goodi. Iinlie lime ot Ed. a, Claut. 8 Ed. a,
tu. 31, ilie kiiiE couunnoilL'ih divers towns to
Rot. ("at. 9. E<l. 9, pas 3,ni. &, P»t. 16 Ed. 9,
•m. 11,11 writdirectedi'i sir Thomas Weston and
olliers, [o array 'nil belwccil 16 and GO, or to
take their lands and HniHls, if ih'V did rernse.
Fufs 1, m. 7, of the same mil, ( Tnus. 30 Ed.
S, m, — , tlic king dnib tliere dechire thnt thote
that sia^ at home ought to contribute to tet
forth shifiS. and fur tbe wa|tes of the mt-nem-
ployed. Claui. 30 Ed. 9, m. 6, writs directed
to the scbolnrs at OitVird, they were not es-
empled, but commanded to keep Sonihgate
aafely. Rot. Vaac. 18 Ed. 9, m. in, Tbe kini
wriieih 10 ihearclibish'ipandothiTs, cummand-
iag them to h^ive horsi-s and rata in n readi-
Dos, as ofi< n as need shall require. For time
of Ed. 3, Claus, 9 Ed. 3, m, 13. and m. «9,
dors. Ill Soutlinniptun, and to wrern) oTher
towat fiir tliCir jhippinn, abnve 40 Cnns. Put.
3 Ed. 3. |.ars3. m. 6, ihe king rnmoiandeth
tliesberilfoF Cornwall to di-tmin kni^bw and"
otbo^t, Uuit abide not apim their Unds in mari-
time part*, and to imprison. Those tears of
10, 11, Vi and 13 of Ed. 9, hating been re-
membered, ai-Ed. 3, Tbekiog, concerning fke
ilefence oC ibe sea and sea-cuiiste, gate S|ieci^d
rulea to be nbierv'd, boib for tlie number of
thesbipsand tlie ^en, and the quality of iheir
persons, and for tbe proportion of iheir wages ;
as appeareth, Pat. Si £d. 3, pan 1, m. 36, 97,
vh^B tjaerc was special ocifier taken for tbe
guarding of the sen and sea-coaitsat the charia
of the inbtbila^its. Kol. Franc. 31 Ed. 9,
pais 1, m. 11, command to tlic shertlVof Lon-
don to arresi all sbipa in London lo be sent to
Cplnis, to resist the enemies ngaiiist us ihen
abuui to come. Itot. Franc. S3 Ed. 3, m. 0,
the kin^ reciieib, that France made a pn para-
lion to luTsde the reulm, and ijave a poner to
some to raise fnrces ; and commandeth the the-
comniiisioiian. Pal. 9G Ed, 3, pan 1, in. 7,
manded all men between 16 and GO to be in
readinese tu resist the Scoit. Kot, Franc. 95
Ed.i
of forces for shipping. So as in that roll likewise,
your lordships seeihai the inlfludcountii-awere
comnianded for shipping. Rot. Franc. 98 Etl.
3, ui. 6, the kill); appointed Ru. Co. and Ro.
A. 10 arrest all ships of SO tons and upwards,
betnpeii such a distitncF, anil 10 brin^ them lo
Soul bH in p tin. Rut. Scut. 29 Ed. 3, m. 13,
sevenl writs were dirccied to the bishops oj-'
Durham and Carlisle, and others, fur ihe nrrajr-
ine of men. Rot. Franc. 40 Ed. 9, m. 37, th«
king sent forth divers writs, con manding ■ ijuih),
&c. with all llieir Ibrcis, ibey slitjuld assist to
the side keipini; of tlie sea-roasts, to resist tha
malice of ibe enemies. Knt. Franc. SO Ed. 3,
m. 47, dois. Cnniiiiaiid to miike pioclainnliun,
that all th'il have land npon.tbe sea-coasta
should fepair ibither y'n\i their families. So in
all age*, and at all times, writs have is^utd both
fnrihe defenteof ihe seu and land by tlie king's
conimi<i>d. In the time of Riili. 9, Rot.
Pari. 6 Rich. 8, m. 43, tbai was nbiectrd as a
record aiainsi tl e king, but niukitli clear tot
Quedii que le roy persons assimbies.
1 par.!
.sdel I
'. de V
ir e>chri
f del r
rtBge* o(
pur le difrnce nostra royalmi
The king ansters, ' Lc Roy vulet de lairs in >
' ceo cjse come per de advisr des seiEoinrs, &c.'
Your lonlships see they desire uf tbe king,
thai be wnu^d live of his revenues, that the
profits of escbeats, wuriis, &c. might be kept
|i>r lire deieuce of the renlm. The kins c'veih
them this answer, Tliul be will do in ibin case
ly ihc ndiire of hislord-, as shall be most for
111 ItoiKiur sod profit : .^o do reason to make
any enfnrcemriit out of ihis record, tlut tha
irofitsof isrheiit", wnrils, iic. shouM go for
ihe defriice, because tbe king makelb no a^
S'lluie denial unto it. sayin);, tliat be will do at
he shall be advised by his loids. Ret. Franc.
7 Rich, fi, m. 18, that tlie tords beyond iha
seas be arrayi d and aimed accordinjt to tbeir
!iii.tennd fuc'ulties. Pat. 8 Rich, 3, pars 3, m.
15, a command ihat all bttween IS and 60
be in a readiness. Rot, Franc. 10 Rich. % m.
8^. arrays through all EngUud. And so in
tbetilienfHen.4, Rot. Part. S Hen. 4, m. 94,
fur tbe arraying of all men ihrougbout Eagland,
and iboie that aere impottnt, and could not .
go, to contribute uuio it. 3 Hen. 5, m. S6,
don. Pat. 13 lien. 0, la. 10, general cooiiai^
1051] STATE TttlALS, 13 Ch. L 1637.-
•ion! for the wresting of ships, vrtihout declar-
ing tb« cause. Pat. 14 Hen. 6, nssigoed Job,
de N. CO iLrrest all ships in the port of Soutli-
arapton, to do scnir^ us the king shall com-
mand, there was no c*use dcdurcd. i'at. 38
. Hen. 6, tn. S, 13, rommissious to ■rray, nod
those arrajed to keep ia array, wiiU diligent
watches iato aeveral coualies. 1 ilea. 7, pars
1, the king nritelli to sir Fiu Hugli, to Hrra^
Mcberi and honemcn.
So that it appcareth by those precedent) in
atl ages, that iliose defenses which have been
innde by sea and land, are not conSiied to part
tarrm, and maritime places, but ■ per totam
• Angliam.' r
In the neit place, I shall give a particular
answer to some objections that barq been made,
B« have not fallen In nij way ; and to the acts
of paKtatoent, reasons, records and book-cases,
urged by the otlier side.
May it please your lordships; The matter
that I did propose to insist upon this day, was
the ananermg of the objections. I shall 'use
DO preamble, no repetiiiau to introduce what I
have to say : but in the answering the objeo
lions, I sh^lfirat^ive answer to the seTeral acts
of parliament insisted upon, then to the several
records and reasons that ha*e been urged on
the other side. Attd in the hist place, I shall
answer, the exceptions that have been tiken to
the writ, 4th Aug. 11 Car. Mittimus, and form
of proceedings.
The first act the;rliave insisted upon, is that
ofWilliiun 1, coll it what you viill, an act nr a
charter. The words of it are verbatim in Mat.
Paris, ' Volumns et concedimus, quod omnes
■ liberi homioL-s slot quieli ab omni tallagio,'
&c. — It doth no nay trench upon ihe royal
power: for as in the beginning of my nrau-
ment, I opened to your lordships, that Uiis
Cower WHS inherent in (he kings of England
efore the Conquest; here isoolj a concession
that they shall be free ' ab omni injusta exao
' tiooe.' Noti this is no unjust exaction, for it
is of common ridit. And then theotber part
of that law doUi explain it; for it doth gay,
* Qudd summ fralres conjurati,' &c. so for the
defence of the realm. By the same law they
would ar^ to take away the power, by the
•ame law it is reserved.
The neit tbing ihcj insisted upon, was the
charter 17 Johan. or on Magna Charta^as thej
call it; which indeed is mentioned in Mat.
Paris, and may be under the great sral. The
words of that are, * Nullum scutagiuin vel
' auulium nisi per cottuuune concilium, nisi ad
' priianm lilium militem tkciend' et mariland'
* fir, &c.' — This charter, as it was acknow-
ledged bv themselves, was granted at Running
MMd, where the banners were displayed, when
there was war or rebellion between the barons,
commonalty, and the king, it was not assented
into, the king sitting in parliameat : for par-
e not called witli ums, And in the
-The King agaiiutJolai Hampden, aq. [lOSH
lield. It was, in tmlh, an inforced act from i
distressed king. Stiatt thii bind tlie crowns 1
shall remember tlie act of parliameat mtde
15 Ed, 3, and there onlynerc things that ana
in parliament enacted derogatory to thecron,
as this is: That no peer should be questioned
but rn piirliament; Thai no great officer ben-
removed but in parliament : That no clergymn
^luillcome before teiiiporat judges. Tbesewem
things (hut were much Heri^atory to (he [ire-
rogalive of (lie Iiing: 15 Ed. 3, That king the
same year, when be was better adiised, did
make a charter which is in print, for ibe r^
calling of this prejudicial act of parliament slill
in force. It appearetU by the parliomenl-rolb
and printed book«, where the long declaieit it
was drawn trom him with an unwilling miod,
and was prejudicial to tlie preroj^iiire of bu
crown; and therefore by that cbarter it mi
repealed.
But, my lords, if that Charter ITJobsa,
should be in force, why hatji there been no
cnnfirmation of it in so many parliaments sinet!
The statute of Magna Cbnita, 9 Hen. 3, tilli
been confirmed one and thirty trroes; wlij no
confirmation of the charter IT Jobaaiiis? Aim
why have we not heard of it since that nme'
The reason for it is, that it trencheth too moci
upon the prerogative of the king and croim.
Bat lake the words as they are, whst bo diejf
' Nullum sculagium vel auxiiium nisi p«r cob-
' mune concilium ree. nostri.' If these w««
in act, doth it extend to take any thii« ««f
It belongs of <
right ni
And that iiath been the exposition of my lords
the judges of acb»-of parliament: That sidt
due of common right, are not taken a*iy by
general words, ' Commiine, See.' And Uiere-
fore these aids due of common right, is this i^
are no way taken away. — Besides, for ibe «»•
tote of Maena Charta, it is made 5 Hes. J,
c. 29, ' Nulius liber homo capietur, ant mp^
' sonetur nisi per legem,' tec. The gene™
words of this act of parliament do no "ajsm*
peach the royal power, for this royal power n ,
' lex terrie.' Besides, in these precedents, l*
Hen. 3, IS Hen. 3, 86 Hen. 3, 48 Hen. S, »M
all tbe succeeding king* remembered in aU "< ■ j
them, that these rfrits weot out to provuW
shipping at the charge of the inhibilanti; »,
surely, if they had been taken away by M«p«
Cbarta, the writsafter MHn«Cbarta«onUao<
hare nsed it. j., rf«.
But then there hath been objected, tt**'' I
tnte De TalUgio non Coneedeodo. 1' " ^ I
35 Ed. 1, as it is printed, or 34 Ed. J, « Jj* |
the Petition of Rii-ht doth (tcite it ' temp M- |
primi,' be it when (bey will, under firnmr, tlw*
IS nothing in ibat act doth lake iwy "*
power : The words are thus, ' NoUiun uUjpiwi
' vel auxiiium sine Toliintate episcopor* ta^
' burgens', &c.' Mr. Solicitor, in Ins aigumw^
upon probable grounds, did make q"""^
whether this vras an act of pariiameot Jf»"
no : 1. In respect it was nolinr^lW *^
other acts of that time. (-Bet™!* ^X
peimiiig of it, it majr tena ntlK' ■(■ ** *^
1053] STATE TRIALS, ISCharlmI. l631.—vtlheCateitfShip.Mtm(y. [1054
itrnct. 3. Because when the other acta (rf
those times were sentovcrtoEd.'lito be sealed
and continned, no auch act on} jent over.
Vy lords, I will not laj; hn)d on (his, bat will
admit with tliem that it la recited in ihe Peti-
tion of Right to be an act of paiiiament : so I
will aiimtt, }ret to nave notliiaj; that hath been
said, bui by waj of admlLiance, I give this in-
due bj the
ira ^eral ; ' Nullum talla^ium vel
' nil) assensu parlinmenti, &c.' Here la not in
this act of parliameni go much as anjeierap-
tJon or on aid to knight the king's son, or to
marrj his daughter; jet in this the law is ob-
MTved, that tiiese aids are not taken away;
and so it ii declared, 95 Ed. I, cap. 11, which
doth reduce theK aids unto certainty. So as
your general words of ' nullum auiilium' will
not do it, if this be to aid das by tb« hws of
the land.
Then I my this is not properly an aid, but a
contribution of king and peojjle for the defence
of the realm ; it is ' ad proliciscendutn cum na-
' vibus tiostris :' then I lay this power is ■ inter
'jurasumms mnjesiatis, one of the highest
prerogatives of tlie king, and shall never be
taken away fFom the 'king; lTH*n.7, statute
■ Quia emptorcs terrar" doth nut extend to the
king ta tike away his tenure. If you will have
such a high prerogative taken away, you must
shew it in the acts of perliuncnt. Nay, my
lords, I say that in the times of Ed. 1, this royal
power is eaprrssij reserved by act of parlia-
ment to the crown ; and therefore in afler-times
never intended to be taken away. — First, I
dtalt intbrce it out of the statute of 95 Ed. 1,
G. 5, 6,* that doth recite, that aids and tuies
that have been given unto us towards our wars,
and other, business of our own grant and gooii
will, howsoever they were made, might turu to
k bondage, &c. We have granted that we shall
DOE draw these taxes into a custom, &c. and
do grant that for do business henceforth, we
shall take such manner of aids, but by a com-
mon consent of the realm, &c. saving the an-
cient aids due and accustomed. This aid is not
to taken to be an aid, ibr this was never given
the king of England, hot taken by royal power ;
the statute of 95 Ed. 1, speaketh of such aids
aa have been given, and eiceptelh such aids as
have been due and accustomed. And by the
precedents shewn, it appeareth these have been
due and accustomed. It hath been desired in
' fide legiantis,' and with a Mandamus : 3 Ed.
1, cap. 1, ibis statute doth coAlirm the Great
Charter, and the Charter of the Forests; but
in the end of it in the Parliament- roll, (hat not-
withstanding all (bete thiogs before-mentioned,
both the king and tbe council, and all they pre-
•enC at the making of this oniioance, will in-
tend (be prerogative of his crown to be saved
unto him.
A further answer to tbe stuate Be Tallagio
* Vide les parol! del SutoM.
£d. 3, Rich. S, and the practice since, dotfi
shew plainly, tliit it was never intended by
tbe statute to take away this royal power. But
then there was a tiling materially objected, i£
the records would have narntnted what bad
been said, and that was. Rot. Pari. S9 Ed. 1,
and then it was said, That though there he a
saving, i5 Ed, 1, and 23 Ed. 1, yet here is no
saving in this act; so then if not ibr tbe act 39
Ed. 1, all was lost. My lords, la this I say,
■ Nul tiel record.' And therefore I shall de-
sire, that this which they call an act, 29 £d. 1,
I may attend your lordships with. By this re-
cord it doth appear, that it is only a record of
the perambulation of tbe forest, and no repeal-
ing of any former law ; neither is «tij thing
enacted by that law derogatory to the crown.
I'he next statute objected, is 1 Ed. 3, cap. 5.
The words are these : That ■ no man shall be'
.' charged to arm himself otherwise (ban in the
' time of tbe king's progenitors ; and that nooe
' be compelled to go out of his shire, but wherff
■ necessity requires, and tbe sadden coming of
' strange enemies within the realm.' So this
statute is relative to what hath been ^rmerlj
done;; Whathalh been found done formerly, ap-
pcareth by tbe records of king John'<i and Ed.
the fint's time, that the subjects were to set
forth shipping at their own charge : then those-
writs went out in king John's and Ed. the tint's
time, as hath been slewed. And then this sta-
tute alloweth in two cues, one where necessity
requireth, the other upon coming of strange
enemies ; and this writ requireth no other, but
where there is necessity, in the king's judgment.
The next statute is 1 £d. 3, cap. 7, which
was objected, nhere men at arms were conrey-
ed into Scotland and Gascoigne without wages ;
the king saith, it shall b« done so no more. —
The statute mentioneth Scotland and Gascoigne,
foreign wan, and so foreign to this business;
for though Scotland was subject to the domi-
nion of England, yet it was a divided kingdom.
8 Rich. 3. Continual claim. Com, 376. That a
fine shall be paid by a stranger, because hews*
inScotlnndat the time of the line levied. Braot.
436. An abjuration into Scotland is good. 0
Rich. 3, Protection. 46. That Scotland is out
□ftheiealm; therefore this statute that speak-
eth of Gascoigne and Scollaitd, speaketh of .
foreign war, not of defence.
The next statote is 18 Ed. 3, can. 7, men of *
arms, hobellers an<} archers, iball he at the
king's cbarges; the statute speaketh likewise
of going out of England. But he that is upon
the defcoceat seaof tbekingdom, it isno going
out of England ; for that see 6 Rich. 9, Protec-
tion, '40. The sending of men and ships for tho
defence of ^e coasts, is no going out of Eng'
Und.
The next statute is 35 Ed. 3, cap. B, no
man shall be com^led to End men of arms,
bobetlen or arcben, otherwise than those tkat
hold of such service, without consent. — My
lonb, thb ftaiatt of 35 Ed. 3, doth not tak«
1055] STATE TRULS, I3Ch. I. idil.-
•naj any formet bns. These ihree rortnar
KatuteMl' 1 Ed. 3, 18 Ed. 3, ntui 93 Ed. 3,
■re recited in ihe siacute 4 Hen. 4, and it is
'enacied, tbey aball lie Dntilj liokleo and kept
in all points; so if these bCatutes must he kept
firtnty in all piiiut%tlitii the Mature ot'^5 Ed. 3,'
dolb nut repeal anj of these. Now tliat of 1
Ed. 3, cap, 15, reatnetli n power lu the crown
where uece«siiy requirc^th, anil where sudden
•ncmies come. 36 Ed. 3. ThtMc sliips nere
' sent forth, and coinmaodud fur tlie defence of
tha realm, at the chnrge of the suhjects, Hot.
Franc. 36 Ed. 3, m. 4, S, Rot. Franc. 38 Ed.
3, m. 6. So as clearly there is no part uf thii
power impeached by thU statute of 35 Ed, S,
Tlien tiiey have objected, Rot. Pari. 2 Rich.
9, ni. 3, Ttiat upon a council of a great many
earls, barnns, and sagnoftlie realm, asBemfaled
by the king's privy-council, it was there de-
clared what danger the kingdom was then in,
and that money was wanting; llicy declared
they could nut remedy these rpischtefs without
cbiufjinf; tlie commoni^hich could not be done
it was 3 Rich. 3, in t,
priooe, wliu did tint
half, and a (jfteentli and a half granted to the
king, upon condition cimtained in tlie schedule ;
which IS, that the kin^ thould assent that the
Ereac officers of the kingdom sluuld be named
f parliament ; and serraats appointed for dii-
pence of the money. If the king doih accept
of the lubsidies and aid upon condition, duth
this take away bis royal power? There is no
more done in this than wbi in the pnrliainent
SI Jac. for tliere the ofBcetv and tranmrer ivere
appointed b^ the liouses of parliament. But
then further it doth appear, that this was gnnt-
ed, ' pro viagin Johannis reitis de Castile, &c,'
(0 that it was nut graaled for the custody of
the sea, but fur that royage.
filtreiiih and a half, granted with a prutestatibii,
that this ^nuld not be brought into example.
-— Tbii ii nothing, no more ihan the other. A
parliament gntnts a subsidy, with condition it
fhould be thus and thus employed ; and the
protestation can no ways prejudice the crowb
m this.
And 7 Fd. 4, Rot. Pari. m. 7, hath been ob-
jected ; ther« the king's speech is entered upon
the roll, thnl he will not c^artie hii subjects but
ttpon great and weighty occasions. — My lord',,
tniaia nothing but agra«iuu)specchorthckine
* to bis subjects, that he wnulil charge theni hut
in such cusek as should coni:erD the deteuce of
the realm. ^
The statute next objected was 1 Rich. 3,
cap. SO, that t!ie Mibjecis from heoceforrh shall
in an way be charged by any such aiMtiitD or
■Tie King agtiinf John UampcUn, aq. [1056
imposition. This'i.i no benevolence, hit a le-
gal due.
Next tliey object, the statnte of TonnMf
and Piiundnge granted to the crown li>r the
ilefence of the renlm, — First, In answer to ibii,
I say, that there is no act fur Tonuage mil
Poundage that is now in force, neither are an?
dutiot taken to the crown upon any ^ct of par-
liament. Thuse acts for Tonnage and Pnuiid-
Bgethat havebien granted, make for the crown.
And therefore, if your Ifirdships Inok die its-
Cute 1 Eiiz. and 1 Jiic. it was given lonardl
the king's charges, tor the defentx ofthereiliii
and safegunrd ntthe tea: It was given lovsnlf
his chaises, it was not intended of extraordinuy
defence. So my lonls, these nets, wlKnthtT
Mere in force, did give this but liiwaril) Lb*
chDi|«s. It is so now j for tlua wUdi is dont,
and those contributions levied, are but toaanb
his charges: nnd thut wHl appear uponiccovnl,
that Itis majesty fax these three or four lein
haiL expendtd more upon the sea than any of
his progenitors. — Besides an acknowtedgDitiil
in these acts, that this defence couid out bl
done without the intolerable eipence of liii
majesty^ tliese aids arA of necessity, and ut
not to be lacking at any time.
My lurd', in the ne»t place, tl(ey iniistri
upon the Petition of Rinht, 3 Car.— It nu
never intended, that any poner of tiie king, hj
bis prerogative, should be taken awny or icsjcn-
ed by it. t dare be bold to affinn, IbrI ■»
erf ihttt parliament, and was present at the lit-
bate, that tliMe was never a wurd »p«keii »
that debate of taking away any po*" of ibc
king fiir the shipping- business. — B«Mdes,i! a
declared, assented uuto, and denied by mit,
that there was nu iiitentiim, by the PctitioD ol
It^ht, to take away the prerogative of the tmc,
'llie k^ng thereby did gr-jui no new tiling, Ifli
did only confirm the antient and old hbetlia
of the sulject.
My loi^K, these were the acts of pailii*"'
tliat have been objected itnd insisted upon °J
the other side.
In the next place, for an answer to '"™'
lous objections. It halh been soid by Mr.
Holborne, of these statutes of Bi EJ- 1. ""
38 Ed. 1, that it the times of makinf! the*
laais they were positive, no such Salvo nas n
ihem of the king's prerogatiie: thai the "W
before Hen. 4, wei« penned by tlie Imf*
council, and those clauses of a Scibo crept id itj
llie kino's council,— Thtse wwe bold ona P*
sumptuous assertions of the acts of purNoj'T
madein that time of Ed. 1, that there shml"*'
any clanses added by llie king's couneil, ''"■
should not be added to ilie record. 1 bn.eM"
thePatlismentKecordithatihcseeMCpli""/;
.fiht
Bgoin>t
) make any such a=~ . . ^
coias, ought mil to be done; lie nmy '."'Jf^.i,
saTne against M.ifina Chatta, whicT) is 1« ""
hberty of tJie suliject. , ,^
In {he next pla^e they have objected out rf
tb« Parliameai Boob, 93 £d, 1, il^; "f^
1057] STATETRIALS, J3CiuiLE!l. J(537.— in fAe Ca«qfSft$>-JHbwy. I105S
petiiion made to tfa« Ving, to hava reslitiilion
uf ■none)' tuiea, that ttie king did ordain the
treasurer should Rive iBiisfsclion. 1 Bhatl dt-
fiire il mny be read, und yoa shali Mc, tliose
inuneys lor whicli directiuu wia given I'of sa-
tuSiiition, were for nouds tnken forjhe kin;;'!
tis«. Hot. farl. 33 Ed. 1, fol. 105, (lo>«. ' per
* scruiin' pro guerra, &c. IU>pous. per regein,
. * Jiui ntdinatit per concilium quod tuiistuciio
* fact' t'jiu ciio r|uiiiii polerit.' So this remrd
was lor miiDeys tuken tor the ting's use, tliere-
.fnrereaS'iQ saiisfijctiun thould be gireo, Peram-
buial' Korest' iioi. 20 Ed. 1, de Lilwrtntitiua
Aiigl. 18 tVbr. Lincoln. So here is no taking
away ol'aiiy foriufr act of psirliameiit; it rt-fer-
rc(l] to irhiit sbuU be tucuTEly amended and n>-
The next they objected was. Rot. Pari, fl
Ed. 8, 111. 3. The lryar» of St. John's nt Jeni-
taleindid pttitioatuiiateiatiaraction of 3,354/.
taken by I tie king out of their treasury. Now,
because this record was vouched Ivro days to-
, gelber, I desire it may be read; and upon the
reading it will appear, to be upon aoather pur-
pose, ' Sur' le Roy, &c.' there was cause oud
reason why the king should make satis tactii id.
The nent reconi was, Put. 86 Ed. I, m, 91,
»nd that WIS iiighiy magniiied by them : ibnt
ibere ^^erk seveml commissions went out to
encjuire of gtoriiaiiiiibiia, of wools, and ofoiber
particulirs, ' de cunod' maris;' and in this it
was atfirmed, thai, as all the king's counsel
took tbcir notes, tlie^e clauses were omitted out
of tlie writ that concrrns the forfeiture of lands,
goods Hud chattels, or selzuies. — This commis-
sion a lakttb notliing lo ihi) purpose, lor like
Gummi^sibn* daily cnme, wheie there ere taxes
laid upon men heavier iban ought to be. Then
> commission to enquire of grievances b this
kind, wherein an aaswer of (niy ibiug unjustly
taken shall be restored, but not a word to im-
peach this ri^al poner. Anil, my lords, for
(he peiiHlties in the writ, 31 Ed. 1, m. 90,
power to seize (be lands and soods of the re-
fusers, 30 Ed. 9. in. 10, under forfeiture of all
. their goods, 10 Kd. 3, m. 5, dors. Claus. n
£d. S, ID. 18, dors, lluit the pennlties and com-
mands were 111 iiigh iu iliis commission as bct^ire.
The ne»t ohjeciion vras, ■ibat the kings of
England hnv« always consulted with tbeir par-
Jiaiiient concerning the defence of the realm,
Mid that the aids and subsidies for defence have
been grunted by p;ir1iameiit. — This is no argu-
nteiu li> impeach this rcjal power; for if in
time of war th^ kin^ will consent to Ir, shall
this take away his royal power? In (he times
of Kdw. 8, iind Ilich. 3, lUd that take away (he
king's royal power, that be may not ordain
■tandiirds «f the miniey himself? He may by
his royal power erect courts of justice; sliall
that tHke a»ay this fmm his power, because ihe
court of wards was erected by court of parlia-
Next th^ objected Bot. Aim. 13Fd. 3, pars
3, m. 38, That Ed. 3, was S'l tienitrnt for what
Le bad dune, that he sent to Uie archbishop of
Canterbury to pray fur him ; and that tlw peo-
ple wouM fbrgive him for layin|> thoie tue*
upon tliem, w hich his war compelled him unto,
and be noukl never do the like Biain, — Yoi»
shall see, it was only to pray for him for hi*
voyage into foreign |Miru, (und he caused th«
reconl to be itad, U^inuine thus; ■ De excu-
' sando regem versus poptUum,' and ending
' de gravtiiuinibus') dated at Berwick upon
Tweed. Your lordships see noihing by tbii
record, hut the desire of a prayer; first, to prajr
tur the king for his voyage beyond sens; the
other, coiiccrning llie charges and iotposiiioiM,
Surely this couiribniiou caramanded in the
shipping business, was none of ibeic ch.ti|;es,
lailluges, or impositions. This bis desire to the
archl;>shop was not only in the 13tb year of
bis reign, but the like in anno S5, S6, and 50;
so surely those prayers of the archbishop were
fur other causes, and nut for ihia, which wu
for tiie defence of tlie reulro.
Next they do objvct Hot. Franc. 7, liich. 3,
m. 13. That the king assigned Tonuage and
Poundft^e to Henry earl of Northumberland ftir
guHtd ot the sea<>. — My lords, it diAb appear by
the very record itself, ibat this was only for all
ordinary defence, and no( for an extraordinary
defence.
Tlien (hey insisted upon the Parliament-Roll
13 Hen. 4, m. 43, tlie office of measuring of
liueD-clolh, a half'peiiny upon ihe buyer, and
as much upon the seller, and other fees upon
long-clolb : ihe parliament, IS Hen, 4, de-
clares it to be a void office, and that accord-
ingly judgment was given, 13 Ueii. 4. Out of
this be would conclude, that therefore there
should be no new olBce, and that an olBce
granted with a fee is void in law. — For answer
to this : First, The reason why that was a void
grant, wns this; it Bppeareth,4 Ed. 1, that tbo
olfice of nleasurage of all woollen and linen-
cloths, was one entire office. If the king will
grant ibat (o another man which did intrench
upon the former office, a void patent ; there-
fore a str.inge conclusion, that because this of-
fice was void, therefore no new office to be
granted. 22 Hen. fi, fol, 9. The office of sur-
veyi>i|> the packing of all cloth, a good <^ce,
27 Hen, 8, fol. 88. Tlie king granted to ona
to be his siirr^nr, n g»od office. Fiti-Her.
saiih, because it had no fee, therefore it was a
void ofHce. And now at ihe bar it is said, be-
cause it bath a fee, it was a bad office; If this
reason mny hold, ail antient offices may Ml.
34 Hen, 6, oAice to be luarsbal of the King's-
b-nch; la Hen. 7, 15, to be warden of the
fleet. N»y, it takeih down all offices that
have been erected for the public good, and upon
jott occasion, as the office of Subpcenas in
Chancery, Star-Cbamber, &c. All those with-
in lime uf memory must be shaken by this.
In the next place they object, that these con-
tributions, they are in substance impoudons;
Had that the king should not imjiose upon the
subject by his charter, or by his writ; but it
roust be done by common consrat in parlia-
ment. — Your lordships have observed in alt my
diacoiuM, that I btTi net iiMiftid *py wny
3t
I059] STATE TRIALS, laCn.I. l6S7.~T?ieKitigagaimJolinHiiB^da,aq. [Vtn
upon ».aj paner of imposition, ii«itb«r is it the
guMtioD in the busincu : For no man's prop«r^
it invadeil, tin eeizure ofarty nibii's gnods, unlets
Ihej incur it for conlenipt : biii( bj a willul
contempt, the subject may iose his property.
Therefore, Dver, fol. 16, Aid 13 Ehz. fi>l. 29i>,
fftbc king* ill coDiinnnd his subject to^omeinlo
the reahn, and he' mil not, he shall forfdii for
fail conieinpt nllbrsgooils; uril'he be iittaclied
to appear in the courts of Jusiice, and nut ■]>-
pear, lie ihall fDrfeit hii goodn, ^4 lien. 6, 49,
OHen. T, e. If« man will willully cuniemi.
the king's command by his virir, he ma^ be
dianained; tliii be incurrtth nut by aji ui*a~
lion of big property, but in respect of his 'con-
tempt.
7)ieu thaj allodged Itot. Pntl. 50 F.il. 3, m.
3*, the lord Lii timer, he wM sen teiircd for per-
•UMlJne the bing to lay imposiiioos on the peo-
pie. My lords, I have looked Qpon the record,
HimI tlwre the case of ibe sentence is dcclured.
that he himself laid the impositious, nnd did
titke upon him royal power ; nnd [lierelbre lie
WM justly sentenced.
And fur the lenience of Dr. Monirarinj;, it
ii nothiiig to this purpose. Ibis writ denictli
liul the properly lo be in the subject, but saitb,
ihriuluect noth the firapcrty; >ud iherefure
coin riiBiidetb the sherilTto distrain him if he
will not pay.— And fir the commission 9 Car.
fur the bortowiug of money for the Pabtinair,
tbis WHS for the rccorery ofthe PnlutinBtG. niid
not for the defence of tlie realm ; and besides,
it was called in by speci;il order.
in the neit place, ibeyiHccted and sliewcil
divers records, ihut die kuis hath paid tlic
wages of diiers mariners and soldiers. And
I do agree it. Is ilmt nn nrgument that be may
not command the msriners en be sent at the
fhnrges of the county to famish the king's
•hipsf This is nsninst ihe records that I hHve
Tememhered. So likei^lic they liate cited Ul
Ed. 3, rot. 7r, Ex pitrie Rcuiwn' Rejiis. Tiie
Iiing commanded the cnnetable of his cas'le of
B. to build ships, and the king to piiy for tlicm.
So he dnth at tbis day ; he hath built the Sove-
feign ofthe Seas, and paid for it.
Tbey have objected Dr. Coneira book,
which was tailed m. 1 wi-li tliey had read tEie
Euclomatioti : ihtre are thrive cnu-eseKi>re$s<.-d
tit. Because bcbad wnt things d,To;aiory
to the cmitn. Secondly, For . And '1 liinllv,
(peakiiiBirreverently of tbecoiamou law. Ju'it
like Co tlie men *bi> do not spare tu wnde itito
all the deep mysteries of prtaces, hIio are gods
upon earth.
For their objection, t}iat the king hath a re-
venue belonging to his crown, for the defraying
of all ordinary and eilriiordiivary cfiar^es, and
for the guard of the sea, as Tenures Sy Knight-
Service, Escuage, Wards, Marriages, antient
, Uemeui, &c. Tnn'iaee and Pounrktge, Ser-
vice of the Port*, andProlils of the Soa. My
lords, it is not for us that are lawyen to look
iuto the secrcia ofthekinVsrevcnuei be hnili
high oBiiMrs, as treasurer, a'ld undcr-tteasurer,
(hat look to the Mena of his estate, and ibey
know well whether his ordinary or eitniii4i-
naiy revenues du ansvcw more than his imuut
cxpence. The story of Aciaron wight dels
oien from looking into tlie secrets of pnoces.
For his lenurei^, that Knight-Stnice mnit
was originally instituted for the service of ScM-
land and Wales, 19 Rrh. S, Fitz-IIer. GranL
165, and Old Tenure, f<i. 10. ThedntinoT
TonnaK^ >»■<' Poundage urc not |[iren mm to
the king by acts of pariiunient ; and when tbt^
weie giteu, it was Siit the great chaises of Ita
fjefence. And besides, those actsofTonnsEi
and Pounilnge only concern llie ordhiitydt-
fence : the sending fuilh ofthe 7S ihifnoulf^
the Cinque-Ports, it was but for lidajs,!!
tlieir own charges. And for the Profits of Ac
Sea by sturgeon-, whales, 4ic. is it a prnptrde-
fence fur a kingdom^ And for the Service «f
the Ports, you may remember hy the rtcoidi
shewed, iliey were scteial times CDama^iM
' ultra seniiiura debitum.'
But tlien tbey have granted one case, ind, 1
think, but one; that the king may urdaio t
Toll in a fair or market, or grant pontage, «
the like, bec.iuse tliere is an ■ ad t|nod dua-
' num,' and thereupon shall he an inquriy, 'a
' pntria gmntur.' — The king may gninl ifcir,
without an ■ ad quod daionum,! ii inbisjv>l{'
meat, &c.
Hot. Scot. 1 Ed. 3, m. B, A writ directed »
the treasurer to pny f.>r the shippioj M Yu-
mouth. JVJy lordii, it (loth particularly app^
in tie reGonl.tbai J. S. was admiral, and ^
into Scothind : m the defence was fur a lart^
war. — It liatti been mightily insisted upon, tliU
bete needeih no Rinimuud Vi furnish slnps,^
the king's writ; every man, by the insnna ■
nature, KiU do it, where there is a Bcccslt;;
no need of a royal power to comminii it—
Surilv tbi* nrsument is made by the peopiei *
to please the ptoplc. What will the contt-
-- --'■-■ ' iuiTi.ducingr''-''™"-
ril goicrnmeiit, nlieii tiery n
n liisll be
..... „wn defender? li.e CW ofhr.stsehw
captains nnd leaders to co before his P*^
and command thera. But to gire the p^V*
this llbcrly, that every man 'liall *du si M
pleases, and make a defence by au iastilict «
nature, is a strange position. . .
But it buth been said in these csse^il <
better to sustain a mtscliief ibiiii an iofonvrti-
ence; by this inconvenience c erj nran's (X*
periy is tiiken away frmn him, as often as i*
king pleaseth, and m what propottiuii he ptw-
eth.— This, though a maxim in Uw, yet it gottt
but to paniciilars : but the lois of a kingdi*
is boih loss of libeity and estate; lliis is not lo
be reckoned among tlie niiscliieft, for this out-
chief destroyeth botli head and weniMn-
Therefore I do marvel to hear the rule of »>'■
Holborne, .Sufler a miscliief rather ihon w ■■
The next objectioii was the Parliamenl-M
a Hen. 4, m. sa, • pur faire des baig»; ^
was the petition of the coimnons, '/"' ":
conmiibsioiis granted to humroghs, c""?-*"
towns, for buildUic of' lwrii«s> •*«*« >« '^
J06I] STATETRIALS, IJCbarlesI. 1637.— in lie Catet^Sh^Jtloniy, (lOM
fiealed. The king's imsner fur the present ia,
'Hiay shoalJ be repenled ; but for Ihe future,
for case uf Deceisit;^! he would advise with t]ie
lords. — It doth rot appear that these were
grtuitedfiv thebultdiugoraiiy iliips tor ihede-
leoce of thercnlm.
These are ilie ohjecrions ihnt Imve been
made out of the acts uf parliament, out of Ilie
reconis, and renwiis 1hi>y hnve iusisred npon. —
Now I come tu their wiceptioiis and objections
agaioat the writs and procceitings in thi» matter.
Firet, ibe; tny, tliei e was no tul:icteiu duiigrr
represented by the writ 4 Aug. 1 1 Cur. Tlicy
•nj a supply hy the Mittimus comes too late;
and that the words of the Minimus are not. a
good afiirmBtire, < quia ^alus regni periditahn-
' tur.' And il cloth not appearthere was any
danger,* Aug. 11 Car. — For this I hare given
present the danger in the n-rit. Tlic king lins
secret intelligence, he hath his spies BbtORd,
bis anbassadors b^'yond seat; he knona ihe
daneer, ive knuw uot; nay, he knows ihat
which is not lit to be discotered, and those
dangers by preparation perhaps diverted ano-
ther way : it is not fit by a puijlic wnt to revSiil
the danger. But, my lords, for the latisfac-
tion of bis people, he hath expressed sufficient
GBDse enough in the writ; 'QuiasiUus regni
' periclitabalur.' They lay there was no dan-
ger represented at this time when the writ
went out. That is mistaken, for the writ of
Alittimus doth recite the writ 4 Aiie. and that
saich, 'quod <[uidem ' przdnnes, pirat£, ftc'
nhich shews that danger was the cause of the
issuing of these writs.
Thet) (hey pxccpt at this word, salui ; it is a
physical word, and sii;nitieth health, and yon
vuit have no meiaph'jn in writs. Surely the
framinarians tell us, that lalvi is taken ' pro
* inuolumitate,' as vtell tor safety as for health.
Idetaphors are usual in writs; 1 dare be hold
to speak, tlicrc are mote luciaphors in the Rt;-
EisCer than in any book : Kfgislcc til. Turba,
Then tliey have left no slooe unrolled in this
case: now ihey say die king's testimony, by
his writ, is insudicieiit for that. Under favour,
the telle mtiptau without tuception; we are
bound to give credit to it. 1 Flii. To). 105.
' Ne eieat regno ;' the king afGrms J. S. will
go beyond the sea, saijh the book, this aver-
ment of the king in his writ is not traveraeable,
you shall not nver BEiinst il. The case re-
membered by iSj. Solicitor, wns mistaken by
Mr. Uolbome in the answer, Ilil. SO £d.. 1,
coram rege. Rot. )4. He saitb, these wonts
vouched in the rc<:ord were but the saying of
the king's counsel, and not the opinion of tjie
•ourt. Clear otherwise, for it was the saying
of the judges ; and iben agreed, ' Quod domi-
t est BuperLntiTom record' et pr^ei-
cate of the capt
be in the king's serv^e, as 11 Hen. 7, fo. 5,
1^ MnificU* of a bi«hop, M in ch« vi bas-
. tardy; to the certificate of a mayor and al-
. denniin, by the recorder, as 5 Ed. 4, 30, and
will you not admit'of the certificate of the king
by bis Mittimus?
The next exception was taken to the Scir'Fac'
tint this Scir' Fac' ought not (o go forth lor ibi*
debt; and gave two reasons tor it. First, Th»
wiii of 4 Aug. doth direct a form of levying,
which is by dihtrc&s, or imprisoning those that ur*
rebels. Secondly, It is no debt to the king, and
therefore ought uot to he levied by Scir' Foc'.--
My lords, fur this, this duty is a duty to the com-
monwealth ; it is ' pro dcfensiona regni, the-
' saunis pulilicus rtspicit regem :' whusoever
shhll detain any public duty, he may ha ques-
tioned by the king, as the head of the budy
politic; Ibrthat itiippeareth, ST Ass. PI, IT, it
was declared that J. S. and J. D: had levied
luo marks on the county for ihs array of cer-
tain archers ; which money did not come for
the profit of the king. Uut of which 1 ob-
seri'e ii»o tilings. — First, This money thst wai
for archers : the money was levied on the body
of the counlv. Secmidlv, reooiered hy an in-
dictment at (be king's suit, 97 Ass. PI. 17, 11
Hen. 4,^0. 2. The fers of the knights' of th«
shire that senc in pailiamtnt, tbi-y are reck-
oned among public duties ; therefore the
goods of a stranger may be taken within the
town to pay those fees, if the money be not
paid ; the di^treis may be sold, lor it is for *
Buhlie duty, 11 lien. '1, 3. So ire the books :
egist. 19, the king may command the ^lerifls
to levT these fees, as well within bis liberty, as
extra.' nil. 3S F.d. 3 rot. .')7, coram rege. Jurato-
rea Huutlredi de S. they make a presentment
tliat J. S. and J. D. cliief constables of £. paid
wages to archers which went not beyond sea.
So OS by 'this record it appearelh, tnat tbes*
public duties are recoverable at the suit of th«
Ling, ' quia ad opus dominis regis.' Pat. 14 Ed.
1, m. 1, 14, ihe king oommandelh an account to
he taken of the murage, and how the sums
levied have been emjiToyed. P. 15 Ed. 1,
coratn rege 70, dois. Itippon was besi^ed, tliej
gave hostages ; promise made by the town that
these hostages should be redeemed, they were
not : complaint is made to the king, and it
came to the Kiiig's-bench ; and these moroys
being 700^. that was promised by the town for
'tlie briniiing back those hostages, was ordered
to he paid, because it was for the public sei^
vice. So for other tilings that are * pro com-
' muni utilitate, inter Communia.' Hil. S. lib.'
4, rot 4, Aunim Reginse, due upto the queen,
may he levied by process out of the Eichequer
in thekinj^'s name, nothing more usual. — Thie
Scir' Fac' is grounded upon the whole matter, the
writ 4 Aug, the Certiorari, and Mittimus ; and
commandeth that the d»'endints shall shew
cause why they ;bould not pay the moneys as-
sessed upon tliem for the public service.
My lord), I have done with the Objection).
I shall cone to the judicial records, Ui F.d. If
' Ad custodiam maris.' Berks, an inland coun-
ty, refused to contribute the Dsmet uf those
that mode defirolt, were cettified into the £i.-
10G3] STATKTRIALS, ISCh.L ltii7.—TheKmgag*»istJoImHm^>^,aq. [.lOU
ch«qu«r ; it appcareth by the i«cunis, that pro- I
cc*s went out of the Lxcbequer in iIie sirictest
niaiinrr, ' A capias in iubdus,' of tlwir laudi, <
teuemeutt, goods ^il cUalttls; and that tUeir '
bodies, with horse oiid armour, be Sfut to I'ons-
tnoutb ; for besiiles the doing ol' uicit service,
the seizare of liieir iancla und guods, Q-t the
ume year, Eic. Rcmeni. Tlicsaur. On the
other side, J. de S. gives tnfomintl'in to tlic
Chancellor of tlie Exuhe<]ucr, and baron!, in
obs(?nce of (he Lnrd Treiuurcr, of Lbo prepara-
tion of men in Flanders (ihi^ being rcmcinbi red
before IQ another uiirpose). - Ii Bf^peareth tlmt
sfler consultation had, they did usolve to send
forth (WO writs, one viad lo the (onn, the other
to (lie T. II. Cujtos Maris, to cnll all for ile-
fence of the maritime, &c. Exc. Remeui' ICegis,
31 Ed. 1, Hut. 30. Ileriry Husiey was seiied
of (be lUBtior of W. in Berks, be hos assessed
tofiudahor*e 'pro cuslod' raarit.' He com-
plained in (he Eicheqiier, that he h^d not the
wbole manor, and yet lie nns Htsessed tohnd a
nliole horse ; be did not come and siiy, I ought
a';ed, but tubiuilted (o tiie power.
nieiohered on bolb sides, divers time* : under
favour, (he joining of the issue in (be record is
a very tiill proof in (lie cbij^c ; he brought a re-
plevin agninit J. S. for taking Uh goods in sn
inland town in Ken( ; he ptcudclh the contes-
tation between our kin> niid (he king of France,
VnitLcigliome assigned keeper of ihe sea, (hut
the plniiiiitT tvas asseised unto T«. Jd. anno 93,
. to 13i. anno S3, to Idi. and the dcfcndnnt be-
ing collector did distrain; (he plaiiuilTdid not
■ay in bar of thii, tliat he ought not to be tnxed,
but [hat he was aitst"4ed ■ ail inveniind', &r *
for such lands : the dtiendant with, (he plai
tiff holds other lands In the county, nnd fur (hat
land he was assessed. Now [l}ia doth admit
tlie power of taxing. Ilil. 10 Ed. 3, Ro(. li.l,
coram rege : The jury of SotTolk did present
that J. Uussel, and otiiers, 8 Ed. 3, were hob-
I>ell<srs, elected in ihc hundred of T. and staid
at liome. They plead. Not Guilty. Tlie jury
finds that J. Itustet did perform (be service, but
J. S. did not perform it, tlierefore committed
to prison, anil paid a fine unto (ha king. By
this record it appearetb, ihc money paid to the
archers and bobbellcrs was at the county's
charge. Melhinks that tlie ditclnuoer ihac is
'hy the commons, 13 Ed. 3, Sot. far. 0, Ik 11,
and ibere likewise upon their
tliat the marilitDe parts ougiit to defend at tbeir
own charges, •) the iuhtnd parts, tbe inland
counties. Tbia conccsuon, iS Ed. 3, is a strong
argument. Pari, ai Ed. 3, rot. 90, wlien tbe
couimont did petition for a guard lor the ica :
The nnswiv is, ■ Soitcuaid iait,' and diat was
at (he charge of the counties, as jout lordsliips
know. 90 Ed. 3, diven ordinances made,
which ordinances made bid the force of a Imr :
The kin^ and hir conncil did ordain, ' Quod
' uwnes ilii, &c.' which hare tacb a quantity of
land should be- asseMed to find one arclwi
one bobbeller lOl.tmo bobbellefs nl^. htr.
unvm hoiniarni ad anna S5'. This afjpcaieih
Rot. Frinc. BO Ed. 3, pars 1, m. IT, la th«
luutiet uf Oull.ird and Bucks. In theiaiae
'ar, another ordinance, (ha( ihose that did re-
le with their families, ' cum luio pD«,'
Lthin sii (iiile* of maritime paris, nen cicai-
ed from lindiag of men without.
niy lords, upon theoccnsiou of (lus lertire,
tlierc were diven refusals made, certificate If
Mitdu.us of tlieir iiatnet into uie Eichcqaer ;
as in this case, J. T. and W. G. were ceitifinj
for def:iulter* amongkt others: upon thi», (u(
court of Eiclieiiuer award process ugniua tbow
men and others, wliicb was a 'Cupinsiii maiu,'
Seizure of their lands and gooiU; tbeycaaie
in, and pleaded, tbey resided ' hifrn ser Icncii,'
with (heir fHinilie* and all tlieir poaers: iaat
joined ; upon this, the jury impiunelled, and it
appeared, those that were found nitluu hi
miles, judgment qitod line die ,- but lor itUim,
they were itnpris'intd nod fined ; for so niiKh
land OS they hud without tlie six miles, fur Uiat
they were charged. If I shouM number le
your lordships all tltcjudgnieni* in thii kiail,l
might speak here tdl to morrow mornitu. F-
•ii Ed, 3, ■ inter cuitinmnio,' in tbe Eidir-
quer ; P. 25 Ed. 3, m. 2Ti P. 37, and M Ed.
3, and tlieie is a number more m odier yatt,
as 99 and 30 Hen. 4. And, inj loids, acconl-
ingtn (howji:<^mcnts, Trio.Sl £d.3,rot.l,
ihe frit wtot Ibrth far di!chir::iug of tachu
liaie resideil upnn their Imids within sii iiiilei<
31 Ed, ], Pipc-ItoU ; some discliarged becivK
lliay were in tbe ting's service.— So u, m*
liirdi4, out uf these records thus much nay I*
collected. First, tliey affirm (be Lin|'t ponr
ill assessing und levymg. And secondly, iW
tliey arc grounded upon Ihose ordinancet i*)^
by tlic Ling and bis council, Thinlly,' theptt-
cess went out of the Exchequer, and in ibe
ting-!, name. M. 35, Ed. 3, pail.corBnBw.
Issue joincNt, nhelher 3. S. bad laadh to ihe»-
lue of .10/. to find bubbellers; if he had, ttcs
be was lo do it.
My lords, I bare now done with the Judical
Precedents ; I have cited some few, sawf*
many others. It is now time, after n lo^
premises, to draw to n conclusion; wbffO"
your loidsliips have Imatd : First, (ha( Hit kjD|
of England, lie is an absolute monarch ; m
that by the common latv of England, all i»^
'jura Bummn majestntis,' are inherent m ■"
person. This ' Suprcmum Dominium ' ft' "I"
the land tliat anv subject boUeth, it is drnlfl
from the crown ; and, as Plowden pnttet* «,
13 and 13, that there is a tacit condition id
law annexed to his grant, that his officers MJ
do justice to execute process surely Bp« ^
grant. This tacit condition may be wbjtct w
a common rtefence. SapremejurisdictioDibiM
by sea and land, was never yet impeaclied, MO
from him licth no appeal. And orignisJty,^
tlie institution of the laws of this realm, w«»
was once in his band, aikd wm "«"f p^
fran him, ik ttiU in bin; bt katli •>»"**
1005] STATE TRIALS, ISCharlzsI. 1GS7. ^inlhe Case «^ Ship-Mmuy. [lUOS
power of conchidnig ww and peace : All these
■re in him bs lie u an abiolDie monarch, and
imldeth hLi kia^ctonn under none bat God him-
self. It hatfa appeared alsn, that a principal
part of this kiogljr office cooiiau in Che defence
of the realm ; Chat as hit jurtKltction ii by tea
and laad, so is hii defence. And ihis haih
beeo nade npfiear to your lordships, butli by
precedents beroce William the Ist, nud kioce:
' pro cummuni ulililale,' and, In case of ne-
cessity, the kin|;i of England may onJain, by
their prodamation, nrlls or pntents, by the
advice <>f their council/ or jjdgc 9, in Iq^ mat-
ters. That Che king is the sole judge of tliis
danger, both for tbcprevendon of it, and ibr
tbe nvoiiling of it. Therefore for us to riistmst
that he will command too great a poiver or aid,
it in a prcaumpCion against the presumption of
law.— It hadiappenredtikewite that sJl the in-
cidents of defcnoe are likewise tnlierent in hi&
niajesiy. We cannot build a fort or castle on
oar own ground, without license from him,
Yoar lordships have heard ibe precedents, pai^
ticular and general ; preced^Dti which nave
uiufersiU reauins, ■ quod omues ex debiio as-
' trictiButtt;' Writi awarded by the king's royal
power, in times of parliament, wliea parlia-
ments wete silling, nnd in those years when
great aids nnd subsidies were granted to the
ting, many times no cause declared, nor tbe
occasion discovered. — There is no act of par-
liameDt made to take away tliis power i And
the judicial prccerfents which your lordships
bave lienrd, hare alfirmed this power.
My lords, if there were no law to compel to
this duty, yet nature and th« inviolato lair of
preservHtKin ouglii to move os. These vaponrs
that are cihuled from us, nill again descend
tipOD US in oar safety, atid in the honour of our
nation. Tharelbrelei us obey the king's rom-
nand by bio writ, and not dispute it. He is
the firatmoveramongst these orbs of Dun; and
lie is the circle of tbts ciicumference ; and he
is the center of us all, iiherein we all, as the
lines, sliould meet ; he is tie soul of this biidy,
whose proper act is to cOD>mai>d; — But I shall
need ta use no persuasions to your lordships to
do justice in this CHUse : and therefore I shall
faDinbly de^ Judig-ment for llie king.
The AactKEKTofSir FRANCIS WESTON,
Knt. ouc of the Barons of his Majesty's
Court of Exchequer, in tbe Great Cause
of SlIIF-Mo^ET.
In Easier Term last, there was a writ of Scir'
f ac' went out of ifae Eschenuer, directed to the
•henffof Bucks, reciting, 'Tbat whereasdivets
aereral sums of money, specified in a schedule
■nneaed to tbe writ, by virtae of the writ 4
Aug. 11 Car. were asiiessed upon the •cTersl
persons in the schedule named, towards the
providing of a ship of war mentioned in '
writ, wliich sums being so assessed, and
certified into the Chsncery, and by writ ofMit
limus dated 5 Mail 13 Cur. sent Into the £v
chequer, and there lo be proceeded upon ac-
cording to the course of the law. The sheriff
of Bucks is commanded tu warn the parties
antaed lo appear, and t<) shew csnie why they
should not be chatted with those several sudw
assessed upon ihem. — Hereupou Mr, Hampden
appeorctli, and dcmandeCh Uyer of the writ «
Aug, of the Ceitiornri and Mittimus, and their
several returns; ihcy being all read unto him,
he laith thit thi se several writs, and the returns
thereof, and the schedules thereunto annexed,
do not contain any sufficiejii matter Pi cfaaig^
liim to pay the SOi. and thereupon demurred.
Mr. Att»mey General saith, that ihcy do con-
tain sufficient matter to chnr^e him. And tht?re-
upon tbe demurrer is joined. The demurrer
being jinncd, the record wag read in the Eacbc-
«|uer ; and tbe cause appearing to be of great
weiehc, it was adjourned unto this place in the
Exchequer Chagiber, to liave the advice of all
the judges nf England,
Upon this record, I am to deliver my opi-
nion ; and 1 take it thera a sufficient matter to
tjiirge Mr, Hampden with this 30l, And so I
give Judgment for the king.
Here hare been twelve days spent in the ar-
guing of this case at the bar : I will confine my-
self lo two hours and less, though not lied odio
any time. The way to he short, is shortly to
Gad out the points, — But I mast first uhterve,
in wliat state this cause cometh in judgment
tielure us. There Is anile in ]aw,ihat if n mnn
shall demur generally to the writ, he doth con-
fess nil other matters in fact that nre nlledged.
The reasons of it are apparent : because mat-
tela offset are to be tried by jury, and matteiv
of law by the judges. Su in this case all the
danger alledged by tlie writ, is confetseri : and
II laK
■ that whirli '
; that a
jodgei are to delker our opinions upon.
It haih beon objected, by Mr. Holbome, thin
we are tied te the writ 4 Aug. fur that writ is
the ground of all, aiid upon that duth aH the
rest depend. It is true, tliat if he had relied
upon the writ, it had been so. But hi; demmw
rcr is this : That the writ, and the rest of the
proceedings with the schnlulcs, do not cotitniti
matier suHicient : so that now they have not
put to lis the writ 4 Ang, alone, hot all the rest,
to give judgment upon. For the writ of Mitti-
mui, it is confessed, that in that there is an ex-
pression, tliet' salus regni peri el itabatur,' which
ts not in the writ 4 Aug, — To this he hath
taken exceptioQ, that ' iaios regni periclilabit-
< tur,' the danger is at the preseilt time of rift
Mittitius, and doth not say, ' periclitatur,* 4
Aug, 11 Car. and therefore this expressioti now
in die Mittimus cannot make good the detect
thereof in the writ of 4 Aug.— To ibis 1 answer,
that the demurring to aU, haih confiMsed all,
and yet the matier in the writ is suEficient tp
express the danger.
Then he objected, that talut s^ifies health,
' safety ; and thtit riie phyncians term
and not lafetT ; and thtit riie p
iCM. — But UMtBigDifies safety M
and gre«t forces on hind. If we ihoald bng
but an ordinarj defence at tea by shipping no
■nan can tell or aappose bat that (hoie iinici,
being >o great, nuijr land wbere the; irill, lod
inas many ulacesBstbey will; ivhatipoil<r
tbey make Wfore luch time ai aoj redsli
could be made D^ainit tbem.'
The; abjecled here, ihat theie oavin ni
th^j are eiteaged in war une with analber
are safe etioueh, we ueed nut lear them. 1
strer, the; are, f think, engaged ia good ean
but who knoKeth Jiow soon these .wan nuj
end? thejioaycDd bj tbe mediatiao of fnends,
or the dentil of some one peraon. Aad aha
there ii a great oaTjp at sea, and force* at lud,
how'easj is it to reiaembec an old quantl, •>
l-heaell
1007] STATE TRIALS, ISCb. I. \6i7.—VxKi.igagamuJiMffaiifden,aj, [\W
So it Is Englished in Cooper's dictionary, and
•o it it taken hj poeis nod historians for stktj.
The next objection was to tli'c writ 4 Aug.
That if tliere Here a danger, it moit be plainly
eipfMjed in the writ, &c. The words are ' da-
■ tuin'est nobis intellivi,* (tc. How comeih the
kiogta understand it? the danger must be fully
exprcued. — For ihis I iiold it more lit for a
- atatesman than myself lu give an answer to,
Cfaat the king should discorai his intelligence ;
whether i^islittofnnke known to all the world
the danger the kingdom is in. But yet I find
that ia tbe said wnt 4 Au^. tlgere is expressed
both dntger by pirates on the sen, and ttiat the
dominjon of the tea is like^ he lost: and that
these are daneers to the whole kingdom. For
the Certioran, I find it is directed to the shire,
and the writ of Mittimui to the coort of Exche-
quer; and tltcrcfore he could not take excep-
tion to these writs; whatsoever 1 shall take ad-
vantage of it must be contained in Che writ 4
Aug.
In this writ, three thini;s, as daugeri, ore ex'
pressed. 1. The dao^er by pirates. 2. The
danger of losing the dominiou of the narrow
feos. And, 3. The great peri! in this time of
war. — For the pirates, 1 ahull not meddle with
them ; tbey are but petty robbers, and still run-
lUD^ away : the ports must defend tbemselves
against these ; the inland counties are in nu
danger of ibem.-:-! will not insist upon the do-
minion of the narrow leas, thaiiiih that is con-
•idemble; for in the defence of that consists
much the preMrration of the kingdom. But I
aball insist on the danger of the kingdom ex-
pressed in the writ i Aug. thus, ' Consideratis
' etiam periculis undi(]Uai|ue,' &c. There is
danger, there is peril round about ui ; and it is
by reason that there are now timet of war, we
■ee danger on every side.
There are two things trouble this point 1.
, Thesubjectsuipects that this is only a pretence,
and that the kingdom is not really in danger. 2.
That there beine great sums of money raised
upon lliis occHsinii, this, in the end, will be
drawn to be annuivl and perpetual : but if they
^tte satisfied that the kingdom were really in
danger, likely they would be cooteuE to pay the
money till the danger be orer.
Fur my pstrc, I answer to ibese oljections,
that it is an unworthy supposition. I must be
•atisfied, and I am, that the kingdom was in
danger for two things :- one reason it, because
if is to expressed in the writ 4 Aug. It cannot
be denied, but chat the kingdom ma; be in dtn-
|er. It hith been conquered, and so it mav be
•gain, therefore it is necessary it should be tore-
Men and preiented j and somebody mutt do it,
and who better than tlie king, that hath the
•are and charge of ihe kingdom? he taith tlie
kingdom is in danger, and hath so declared it
lij bis writ; why I sfaauld not betiete it, when
the king bath declared it so by his writ, I know
not, — My other reason [hat tlie kingdom is in
dai^r is, that it is so de facto. It cannot be
unknown to any man, that these three or four
jMn iMt put, grnt uaviii hava bna at Ma,
le?
do petsusde me that the kise-
danger, and a very great and juS
CAUie to make preparation for defence. AnJ
if every man would be so persuaded, they wootd
not deny the payment of the money. An a-
ample of this nature hath happened in Lnoft
times : in Henry 7th's time, it appeaICIl^ b; s
record on the king's part, Pat. 1 Hen. 7, ptn
S, duo.; there were wars between the kii^ «f
the Romans and the ^ing of France; tbcj^ere
both friends to Hen. 7, they owed him no ill-
will ; yet by reason of these great win, gral
forces at sea, anil great forces at land, the
king would not trust tliem, but sent tbrth hii
prociamatian, to command that watch uil
ward be kept over the sea-coasts ; and cob-
mand was to all his subjects, that upon ituut
waminz they should be read; for defaiM
of the kingdom. So this may well be tn n-
amplefbrtbe course that ia noiriakeDjlbr^
fence of the kingdom.
I shall now come to those reasoni, tniJ n
tlie records that have been objected on sirBC
side. I shall be^in w'th the king's side, becwu*
that layeih a chariteon the defendant.— I (loll
been objected, that some of ihem «is "X*
warranled by the record. First, saj the.^
there is a ship commanded to be, provided, sua
money must be levied : but in the cml, «li^
this great sum of money ia collected, itcpatt »
disbursedl no man knows how. No such dii«
in the recnrd.— To this I answer, tlie nw™
saith, a ship must be provided, and the ti*nS
is to rate the county, ' secundum fncolW'»>
towards the same ; -not a word of any inonM
to be paid unto the king. It is a ship (b^
the sheriff' is to build, and to assess mon'; '^
wards it. ■.
They bare said bevdes, here is m the w*
■n command for the imprisonment of the psi^
and that bis liberty, dearer to him """J"
life, and bis goods, wherein he hadi ■" J!™"
lute property, shall be taken »"■?■ ^*~
things, they sav, are not warranted by 1« 'py
nor by any thing in the record.— J aniwr" _
not warranted by the proceedings iu ''*,*°*f;
for the Scir- Fas' is aot to shew ca""? "^'J^
party's goods should not be sold, or "* ji^
wned, but why be should not b« «!>«<*' "'"
the money « " ' " " "
, Google
1069] ffTATE TRIAIi!, ISCmabluI. JSST^htlx C(ue<ifSiip-»fuuy. (1070
records. 1. For ths Ports; they are of Iwa
kinds, the Cinque Ports, and cbe Ports at large.
VVIiot serrices are due from ihe Cioque PorU,
ia'tipreised in Libr" Rulirico, in the Ejche-
tbac the; were to find Si g)iipt, and 34
ia every ship, for fiftceo days ; nbich
Cometh to 11(18 men. The ports at large aro
to no certuin service; it » ill appenr by
.._ t of tiiese recnrds which I «ball apply, that
the Cinque Ports h.ive beru charged ivith mora
Clien their due, and the ports at large equally
Rith(beCin<]uaPi)rU. I'at. 35 Joh. in. G, the
king sent his writ lo the Cioque Ports, and
thereby commaadeth, ' quod omiies navei
paratc, &c. et homines ;' lie doth not here tie
(hem to a number, but nil must go. Claus. IT
Joh. m. 7. Here the kin^ gent his writ Boraui-
ui suia dc Rye, ■ meniher of the Cijiqae Ports,
Quod venire taclatia nmnes oaves apad Quin-
□ue Portus;' this was jienrral, as the othert;
U the aliipi, not tied tu the number of 59.
UJnus. 14 lleo. S, m. 13. A ftrit irent out to
Poromourh, being a port at hr^f, to provide a
galley, ' et earn munire facinnt cum bomiuibus,
' el quod prompli et porati aint ad proficbcend'
* cum neri'qs^ fiiirir. r ' ' .■ . ■
(ions : a general answer I shall
particulars.
They say, the king hath personal serrice, the
Mrvice of tenants, by knignis service, escuage,
Caatle-guard, grand serjeuiity, petty seijeanty.
Is the king bound by ti>et« lo the defence of
tbe kingdom ) He that doih look on their ori-
^nalg, will not say so ; foe these are tenures
reserved upon the several grants made by the
liiogi and 'no more reason ii there thst ihe
king, by this, should be tied to defend the kini;-
doo), than there is fur the lords, that are sub-
jects, and have the like tenure, that they ihould
be bound to the defence oflheiea.
They siiy, he liath besides thcM, wards, mar-
Hages, relief, finet, issues, amerdamentB,
E rimer seisin, fines of alienation, respicei of
omage, all fruits of the tenures ; which all
mustgo towards the defence of thekiugdum.
I aiiswer lliese profit!) are casual ; besides,
if be be not bound in respect of the tenures,
as aforesaid, he ctiniioi be bound by llie fruita
of them.
It hath been objected, that tbe king liatb the
firofit (if ihe sea, as royal fishes, wtuiles, &c.
vrrecks at bea, treasure trove, royal mines,
ttc. — I answer, these he hath by bis preroga-
tive, and not for the defence ; neither are they
fit tor a subject to ijave.
Yoo say, he liaih particular service from the
.Cinque Pons and other places, as from Maiden,
Colchester, and otlier places; and besides, he
bath all uianuer of customs, and in regard of
these he is bound to provitle for the defence of
the sea. It is true, the king must, for an ordi-
nary defence, use the means the law Imth al-
lowed him ; but that is not now the qnrslion :
it is for an extraurdinary defence. The ques-
tion now ariseth, if it were asked any man,
whether, they do tiiink in their conscience that
tiie king is able of luinself, out of these, to
prrpare a royal navy, withoot help .from the
■ubject P Xone'aie so senseless' as to think it.
There be some other things, (a which I shall
live a general answer. It appeareth by many
records, that the king bath paid wages to sol-
diers, and Gumetimes hath hired ships ; and
iinless there bad been a consideration, the king
•ould not have done it — To this I answer, '
tvBS for ordinary defence, nnd he is liouud
doit; and if he engaged himself by proniise
repay unto them their charges, 1 can say
more but this, that every honest man il
makes ■ promise will perform it, and bo is t
kiog bound to perform his promise : for that
Vhicb honesty binds others to the performai
of, l>oDOUr binds the kin);.
I shidl coine to those things to which a mdre
E articular answer is to be given. The cliatge
etb general upon tbe whole kingdom, which I
■liatl divide into three parts. 1. The Ports, i.
Tbe Maritime Counties. And. 3. The Inland
' Coiuuiet: And to thoe three I will apply the
(■■large upun L'urumoutn, noi uuuuu UJ
provide a galley with allnauner of n
CUus.9aEd. ],m. 5, dors. A writ went unto
Guernsey, a port at Ini^e, lo make a ship ready
IS often as need should require, ' de coniribn-
tione Ta^iend' pro uavibos qiioties opus fuerit.'
Pat. 9 Ed. 3, pars 9, in. ac, A writ goeth
forth, and that vat ilirected, ' Ballivis et probis
' boaiiQibuscomil'Southnmplon,'iom'ahe' pro-
visiouem navieli smnptibiu propriis ;' no priv
lise from the king to pay this again. Clans.
90 EH. 2, m. 7. A writ goetb lo the sheria vf
London, nnd that reciteth a charge formerly
laid npon Ihe city, and upon Kent, for tinditig
of 13 ships; Loudon tollnd 9 thips, and Kent
3, and fortv men in every ship, * ad stimptu)
illarum.' Clans. £0 Ed. 3, m. 8. A writ di-
rected to the bailiiT of Yarraoudi, which is none
of llie Cinque Porta, and they were charged
*' two sliips nt their own costs. And tha
' command, in the sitnie roll, for all thipi
of 50 tons to be ready. Itot. Scot, 10 Ed. S,
12. That writ rcrileth the general ubliga-
1 that tbejr are bnunil in to defend the king-
dom, almost in the same words mentioned in
this writ ; il recitetli, that every man should
be assessed 'juxta statum el fncultutes,' so
there was a contribution ; then coineth in the
clause ' ultra illain pecunin summam debit' pro
' servitiis.' It is true, indeed, the king did pay
tiiwnrds this, but it is eipressed lo be of his
mere grace and favour. 10 Eil. 3, ni. 3, dort.
A writlo Wincheisen.amemberof (heCin^oe
Ports, and that was, ' Quod omnes naves sint
paratz,' both of the ports' et aliarum villanim ;'
and the reason is expressed, because without
their help the king was not able Ut defend the
kingdom ; and appointed them, by tliat writ,
that tiie ships should be ready vicluilled for
thirteen weeks; whereas the ordinnrv time was
but for fiftera day*. Vai. IS S4.' S, m. H.
1071] STATETRIALS, I3Cii.I. 1«3T.-
Tli«re n writ gocth forlh Ut ibe sherifl' uf Kent,
and to die barfiDi of theCiiiaDc I'orts, Hl>ereli]r
they were all commanded lo louli ro I he cujtodj'
ol'the £ca-cuait»; here are lite lUHritiine towoi
and pari (owns joineit U^ellier. 96 Kd. 3, iii.
IS, dors. A wril to $'>i'Ui:unptiin, ' iid congre-
• gniidom n«vea.' In Uk same r.JI, jh, 8, more
wriu to other towns. fM. li Ed. 3, pars 4,
m. 3. There mis h cuminBnd tlmt all that ditcll
oilbin the itie ofTliJaet, froiii 16 «t60, should
be ready to defend tlie lea-coaMs. and this h as
'ja\ia sttitum et Tiiculcates.' Rot. Aim. 13
i.d. 3,'ni. 1%, Yarmoulh ch-irxcd ivith 4 sliips,
and ill each tliip 84 men : wherens u<u>llir il
«u but 'H mi'U ill t, aliip, iiuw I thiuL ilicy
am come to liitcore men in a ship. There are
1 an iofiiiite number (if rolls to iha purpose, to
charge the port tnivns.
1 come nuw t'> my terond division, which ii
maritime lowu*. Pat. 48 Hrn. 3, m. 4, dors.
A writ went to tlie«herills i.f Nurliilk, reritiiif,
Thnt ships and sulilii'r> h.id slnid liii^rc long,
and thnt they were iiileiidini; lu deport, becnusc
their fnrty days were pnst : Command aas, that
tliey »hiiulil ktnv, ' donee iiIiilI indr inaiidHtuiii
• luerit.' Claus, 23 Rd. 1, m. 5. dors. Thtre
were wriisdirectfd to ihe slwriffs of Souihamjv
ton, tViraet and Wiltt, these ilirec .ire all mari-
time raumies; A I'OinrnaniJ, tliat they should
raise tlirre ihimsaiid men to defend the ci
Pnt.'ilEd. 1,111.17. A writdirected to i lie
■lierilB ot'liiiculn, York, and Norlliumbcriand,
to aislst rerlnin commisisiolieri to tnlic np iin
bundrtrd aliipt, with a competent iiumuer ul
men, tlie^ are to maritime counties : The like
wril» go to die sherilTs of Sussex and South-
aioptoii, ai>d these fur ilie prepHmtiou of sliips,
and to take thrm whertsuet'cr ttiey nre I
found. Uot. Put. Qi Ed. 1, m. 6, writ*
to .SouthamptOD, Drv.m, Cornwnl, Dorset, and
mwiy other places til it were mariliiM: lownt,
for u[Te«ling uf ship>, nnd ruisin; of iiieti. But
the rolls 1 might iiiost insiM upon, nrr onlv
these: I'll but name iheoi : Put. 31 Kd. 1, iti.
10, y.\ parte Keoii-tu. Kigi-, ct rot. 711. Ci'i' >
Sj E<i. 1, m. SO, ClniM. 13 Kd. 3, m. It. ,>:ir!<
1, dora. Scit. 10 M. 3, m, 22. By nil "ii'ch
it appeun, nut only the |>ort-s buttlic aiarilime
countii's II"* ciinirihK (•[! towiu-rii the cliiiric
»f tbc dcliinceofihe kii>si:«in. And ihec.tlier
ride do hardly deny i', iiut tliitt the nmriiimc
town* may be chaqre<l- — I '"'H open it plain,
thiit it is for llieir case K) bring in ilie inlimd
tountie*. This cnu'-e is uiit ••( to great conse-
quence, n« it conceived ; fur if the Hint-iowns
and inHritime tonn« may be cliarr;eit, tin n it
biingoiN but iu ilie inland ronniie*. In Eng-
land and Wide* there are litiy-t»'n rountie^,
thirtr-tliree of ihene are iiLiriiiine nit'iitit-- ; mi
most, and they contribute liuC ti> ii I'.urili p.trt
of the cbainc for the ri*ienrp of ilie kinsdrmi
And to mnch 10 luy second ditision uf ttiuri'
tiioe towns.
3- To the third division, which ii if Iiiluid
Counties, that they have >iren (luiiieil ; i shall
mJm tbat appear, that tha Kiaattr pan lit' them
have been charged formerly (at this naiRier of
defence. They uLjurti'd, ttiai the county of
Bucks is Bu inbind coouty, and that Mr. Uanip-
deu dwells lliere ; and theiefore no iiainii ke
sliould contribute to tbe defeoce ; no inlaod
ioiioiy ever did it, say iliey. There may be
two reosous, why, in brnier tioset, the writs for
tliemott part went to the pi<:ts and nariiime
counties. 1. Because diev have tbe bcneAl d
tlie seas by exportntion aud importaliuu tif their
l^oods. And, 3. BeiMUte they are contiuuBlly
ill danger of pirates and rol'ben ; and (ar
neurer for a tndden defeare, than the iataad
counties are. But tl»$ cannot be heU tor a
3Uilici«>>t reason, that tlte* only that' are near
the danger iliould he put to defend tlie whoia
kingdom. I am sure the inland cotiuties re-
ceive creat pdins and proiiu by tbe comoia-
dities from ibe port-towns; and Lhey are the
more in safely, the stronger the sea-coasts an
kept '. uid thctefbre no reason but that tliey
should contrihute towards tbe cha^ of the de-
fence of the r-en. For all i)^ writs, save oiw
commission, b ive ^Oin to be for the general
defence of the kingdom; then no reason tMit
inland couiilies should he charged. If they
!iay they nevtr did ii, it ii a sirange prescrip-
tion, thnt because iliey never did ii, they ecrer
wilt do it. A man cjunnt excuse hinuelf, that
because lie never paid litbe to suth a vicar, «r
siich a parson, that therefore be will never
pay it.
I shall go to the records thnt char^ tbe ia-
land countie<. Cbus. 48 Hrn. 3, >o. 3, a writ
directed to tlie mayor ond baihif of Bedford,
an inlaqd county ; it dulh recite, that divet* «f
that town were fLdlrd to pjo with the king to-
wards the s*a-coa3t:<, ' cinilra bnstilem iova-
' sioncra, et nunc nrce*^ est, ct causas twtuii'
' lit levari Fnc' ct expcnsaa;' and appoial at
what rale they slhiuldlevvii, the faonemen nere
to have eight pence {Mr diiv, and tbe fuotmen
fiiurpencc. Claus. 13 llrii. S, m. 7. Anritdi-
rected to the sljeririT of Iluntingdon, irberebv
tlie men iil' tlwt c<i"iily were commy oded to go
to IiOndonand I'roni '!,fnceto the sea-coB.<>ts, lor
iliedeleiice uf I'e kingdom. K.it, Scot. Ei.
Iteniem. Ktuis U i Kd. 1, i.i. 711, dura. A writ is
<hrfi-'.ed to ibesliciiiri ut Berks, anil ibis is to
distriiin men to make eood tiio ruiLndv of the
scu-coa'-ta. Rot. 'i*i VA. 1, m. 5. tlie like
wriis were directed lo ihc ilierifls oflltitrufd,
Es>es, Niiciingham, Derby, Hunlington, Caia-
brid^jc, fee. and almmi ti all thi' inlaml ct -
u>toilii
all t(
L-indon, and lo ito from tl
coasts. I'-r ihe delencfe thiTeof. Claus. 13 Ed.
3, pars 1, ni. 14, dors. 'A writ goetfa out to
Oxford, ' ad distriageiidum,' fi>r waies, ' pro
nsiixlia niarxima ;' one man was dislraine'',
d lie pIcadiKl-lie had been cbaigcd in Willi,
d ou?ht not to be charged in another count;,
d lor Ihis 'here went a Sopersedrna. Rnt.
agii 1 Hen. 4. m. 10. A wm was direcird to
: slictirts of Nottingham and Derby, t<>o in-
a|id Ihis was to pmcl'iim ' quod
mi. 60, pocati liatjJko.'
1073] STATE TRIAI5, 13 Charles I.
to go i>it}i the king, •tithin the kingdom, ivhefe
be plensed. Claus. 1 Rlc. 3, m. 16. Writa
were direcud tn tbema^or and bailiA^ of Hun-
tington nnd (Jambritlje. Xhis roll ts cited by
CfaecounKl brtlie defendant; and in pyrl it
nakeih for the defendant, and in pnrt ni;nin9t
him. The effect of itis tbis: tlie uric is directed
tn ibe bailiff of Huntington, und tbis recitei a
fbnner writ lo provide barges, called Ballln-
gen, with fortj and (iriy oan a-piece, iilie to a
galley, at the charge of the most rich men, and
Uiii was 'ad cuktod. marii.' And the lite
wtin went to the towni of Nottingham, Glou-
cester, and Warwick, aoil divers other places;
lliese vmel) were not devijeU then, I find theui
used before in Edward tbe third's time. In
the fariiament RoUii, S Ed. 4, m. 23, tbe com-
qioDt did complsia that a commission was gone
forth for llie making of tbese biirget. I'rue,
upon a pelitioD of [lie comtnons, the king saith,
he will advige with his lords ; there is no more
done; but upon tliis the} eeaie. I have now
done wilb the precedenta on the king's side,
I ihnll nnw come to that which hnth been
Mid on tbe defendant's side liir their discharge.
And, first. For the nets and )ietitioni in pnrlia-
Btent, which are weighiv and considerable. —
First, Cor the statute Ue 'Tallagio nan Coneeden-
dn,whichwBiiin tbetimeoTEilw. 1, itbathbeen
doubted, whether this be a statute or no. I
lee DQ cojour of doubt, but that tbis is a Bta-
uite; it is printed amongst the statutes, and
erer accounted for a statute : and in tbe Peti-
tion of Highc, it M recited for n statute. And
lo saj it is oo ■t:<tute, bectiuse the Parliament.
Boll is wanting ; if it should be disallowed, it
would draw a great inconvenience with it : for
private men miulit embezzle the records, and
(hen if the records itere wanting, tbe act of
parliatnent $bou]il be void.
tt is an act of parliaoient, no question; but
the question is, whether the provision made bj
this writ, be within tbemeftuing bf this statute.
—And I i»>nceiu it is nut; fur iliere are two
words in this itatute observable, Taiilage and
Aid. Bj ' no aid' here, will jou take away the
aid 'pur Ills marricr, or' pnrtairefinchnfalier?'
By ' no' taillage,' will you have it so, the king
sliall demand ntf sura of money P Then if you
will give it this large construction, you will
take away all fines and amerciaments that are
due to the king, all lawful impositions; and
surely tbi* was not the intent and meaning of
this statute: but it was only to take awny all
taxes and tatllages that were unlawful. If they
were lawful, this statute meddled not with tbem.
—Now that no taillaffeisto betaken, it appears
b tbe Parliament-KolU, 13 Hen. 4, m. 43,
where an office was granted by tbe king, with
% fee, tor the measuring of linneo-doth, diat
the subject should pay him a certain sum of
money for every piece measured; whereupon
U tbe parliament, tlie (wmmons complain, that
' this was an unjust impusiiion, and (hev desire
that they mielit not be chai^d with this kiikd
of taillage, which, as was apparent, was unjust,
■adM tbey bid prcsgnt lelief nEainstit.
1637— w the Case <^ Sup-Mone). [107*
The next act of puliament is 14 Edw. 3, the
kecond "parliament of ituit year, three parlia--
rneots being held that year. The commons
grant the king a certain sum of money, for the.
great business' be had as well on this side the
M'o. as beyond ; but after a cessation of the
troubles, tiien tbe king is to be at the chai^
of tlie future defence ; thereupon the kitiK
granlelh (bis shall not be bad ia netaplam, and
that they ^11 not afterwards be taxed without
failintneut: and this is the strongest thing that
have heard objected. — Jt requiielh a good
answer ; (he words are plain, no charge no
question; but this is a charge. I looked into
tlie Petition of Kigbl, nud it is not there men-
tioned, nor amongst those acts of parliament
that are in the margin ; hut tbe reason why it
was omitted, I know not, — I observe in this
act of parliament a subsequent clause, that wilt
go fer to the answer of this objection ; for nei-
ther in the acta of parliament, nor in tbe Peti-
tion of Kight, is there any rilention made of the
defence of the kingdom; if the king had been
bound to defend the kingdom, could tbe parlia-
ment have accepted this as a kindness at hi*
hands? 14 Edw. 3. This act was made, yet tbe
aids coiitiDued, none of these writs found till 94
Ed. 3, Ror. Franc. 14. Ed. 3, m. D, & 26, there
went out commissions to arrav men, to tlie
counties of Suffolk, Dorset ana Somerset, for
the defence Of the maritime parts; within eleven
years after the making of the statute, Rot.
Franc. !6 Ed. 3, m. 5, the like writs to the
eariofHimttngton, ' Considerantes quod omnee
■ incoloi tenuntur dc jure ad defendend' in pa-
' nculo ;' and that (hey shall array the men in
this county, and lo bring them ' nd custodiend'
' mare;' and by this it is recommended for tlie
erecting of beacons, which is the first directiou
of that nature; so bereisa'new charge, and
within eleven years after the making of the
statute. The same year likewise there went
writs lo the sheriffs of Nottingham, Derby,
Salop, Berks, Middlesex, Ducks, Northampton,
&c. So though these writs go almost into cverj
ciiuniy, and dzvets other writs of the like na-
ture, as Hot. Franc. 98 Edw. 3, ih. 34, yet as I
saiil in no act f if parliament estant, nor in any
forth that I can find, there
distinction mode between the port-towns, m^-
but that all of them are generally chargeable.
And for the rest of die acts of parliament, they
all mentioned in the Petition of Right, and
therefore I pass them o*er. There is in those
acts, provision against tiians and grievances;
but this clause, for the defence of tbe kingdom,
I find it mentioned in no act of parliament but
this of 14 ¥A. 3, before mentioned.
I will now come to the petitions in paiiia-
meM: Rot. Pari. 13 Edj 3, m. 9, 11; It wa«
there declared to the commons, thai the French
had invironed the island of Guernsey, and nil
this was for delUult of a navy upon the sea; and
tberefure it wo* needful to consider bow tl>i>
3a
1075] STATE'raiALS, 13Ch.L JCil-^'ne Smg "garni John HaifJat,aq. [1019
night be regained- Ic om •niwered bf the
cnmniaDi, I'hat coaceming Che right Bud guard
of the ses, tliey desire to give no advice, sajr-
JDg, tbey have no cognizance of things conceru-
ing tht: »ea; but if there be occiuion, the
cinque-ports are to be charged i and said far-
ther, tliat ia the marches of Scotland, thej
were to defend the kingdom at;ninst tlie Scats :
but that (hit kind of defence should lie upon
ihem, was never h?arJ of. — I nill give jou an
answer to jour acts of pailiament, and peti-
tions of parliament, by puttioE of a case, 1
•fill admit ;ou have an oct of parliament as
Mrong as you can make it, that the whole charge
of the defence of the kingdom should lie upon
the king, ant) not upon the subject, in cue of
any ludden invasion. Admit there was a greater
power at sen, than the king was able to make
defence against; then, I pray, whether should
Ibis not tire way to the present necessity, or
the kingoora should \ie luai ? Ia it not better to
endure a mischief, thao an inconvenience?
If you tay, the acts of parliament should rive
way to necessity, then you have answered all
jou have objected : — This is not the only case
of necessity. I shall put you anotlier case,
when acts of parliament must give way to ne-
cessity: that if a man be aitnintcd of treason,
he is disenabled to inherit by act of parliiuneat;
but if the kingdom should descend to such a
man, then the act of pnrlinment should give
way to it. And shall not the acts of parliament
f}ve way to necessity for derence of the king-
dom f What though there hnve been petitious
in partiannent to have it decreed, that this kind
yet by the law of equity they ought to. be
charged ; and in all reusou they ought to he
(JiBT^ed towards the defence of the kingdom;
and that for three rejects. 1. For the rea-
•on ^veo in tbe writ, ' Quod omnes tangit pec
' otnnes debet supportari ;' which it but equity.
S. The king is trusted with the defence of the
kingdom, and therefore it is fit be should have
means wherewith to do it.
But ^u say he may call g parliament, and
they will give him means wherewith to do it.
It ia true, this thing in ouestion, if it had been
done by parliament, it li^fl been done by tlie
happiest means ; hut because he migbl have it
by parliament, muft ha therefore have it no
other wnysp The qoeslbn now is. Whether
. what is done, may be done without a parlia-
ment or noF What is done, is done b; the
Ereat seal, whii;h is the Deit authority to a par-
Hament. What if an enemy had come before
the parliament had met, or beforf they had
jrnuited any aid, should tbe safe^ of the king-
dom depend upon Such contingencies f God
forbid. Will you have forces on botli sides,
•nd restrain tlie king to his power by parlia-
ment, which may be so ditatory, that the king-
dom may be lost in the msan tune i
3. Man; inconvouencet might luppen both
'' 'isshoulabeauSer-
o^hiiro^al
to the king and subject, if this
ml: ifiLekia^ should be
power, .it would turn to his contempt, both tt
home and abroad : and all this whde the tmt-
■i is not so great, it is but parting with a little
loney ' secundum statum et facultates.' — II ii
■ue, as Mr. Uolbonie bath said. That ia fbrntr
nm they have been careful not to leaietoo
much power to the king; but yoa would Inn
little as would bring hioi in contempt Mi
home and abraad. The wont that eaaa
tbe subject, is but to yield their help to tbr
kine, in sucb times of dat^er, widi a small [uit
of their estate ; andthm it would makefinetja
ns that know of it afraid of us,wliidi oiw
by this occasion have encouragement to it-
tempt that which otherwise they would iiM,
It hath been objected. That if the king msj
ise monies is this manner, many incoiiK<
enccs would follow, and it would be a niciDi
keep'back parliaments. — To this ohjectiM
I answer, It is no means to keep back 8p>^
liament; for there ate many other causts of
calling a parliament, besides for tbe defcnceof
the kingdom : as, for makiug good laws, re-
dressing of grievances, 6tc. The king mi; be
cng^ed in a foreign war, and the suhject mot
help him. But to call a parliament alwajs h
not necessary ; for when the kingdom (re) l*
the greatest danger that ever it na«, as Ip liK
and the rebelhen in the North, yet no padii-
ment was called in either of these dangers.
Neit they object, ITiat if thiscouree beid-
mitted, the king may pretend a danger «l>^
[here is none; or a grent danger, when it »
but small; and so may raise a gnsl. sum ol
money, and the subject shall have but link
benefit thereby. — I slull give three answenW
Ibis objection ; . 1. If this power be in ihe kior,
and thai power be just and equal, then it ii
not to be taken from him, because he msjiuif-
employ his power. If he miaujehis po«r,tnt
fault is his. B. This objectioii cannot he nwie,
unless you suppose injustice in the ting; ms''
what laws you will, if the king be unnilj, t*
will break ihrongb them. 3. If it so fWlsMt.
that Ihe writ goiug out opon this ptetence, "M
that great sums of money are levied, sinl ■>>'
monies employed to anodier use, it *c< *
great inconvenience ; but intbisca.>e tbete^
no such fear, for the writ is e»pre»ly to nsles
ship; and if ibej would have taken aarni-
vantage upon that, the counsel ought to biw
pleaded it, and Die judgmeot ought to appw
[here upon record. There appears do mwiw
in this case to be coming to his msjestj'
hands; but it is said in the writ, ' volmpM
' antem,' &c. we will that no P«««''''"'?^
be converted to another use than to tbe boiM'
bgof a ship.
Then they object. That by tbe"™*";^
the king commandeth his lulgects to I?""^
one ship now, he may command two mf^
neityear. To this I answer, If the dsnr"*
greater, the defence mnst he greater, and iiw
the supply must be gretrer ; and no n.M «^
suppose that the king will impose that oa w
subjects when there is no need. ___-—,
I sbaU now coiu ta tbe two iMt ocp"^
1077] STATE TKIALS, 13 CbaV.es I. 1637.— w ihe Gue qf Sldp-Monrg. [\Qli
Uie iBODCjrj but the oiher going to the ttars,
afterwsrdi, by a secobd direction, was quit:
And iIm first gave security fur (lie repayment
of his WHgea, bcli^ SUi. and ulso fur the annoOT.
It Imtl^ li^tJy, been objected, That tliij taxa-
tion ought to be ' aecundum le^em et consul-
' ludinem Angliier and that oupht not ta be
b^ wri^ but by parlituaent.— To this I answer,
Th&t firom king John's to Henry 4's time, ibera.
hatb been an usage and custom tu bend forth
writs of this nature, and siuca ihnt (itne till now
not ibe like command. About Henry4'a time,
began your toonage and poundace: so Inng as
be bod that, the defence was athu own cliarg*.
There i* no act for taking this charge bj writ
away; it is become a general cuslom, and the
general cosUid maket th? taw ot EngUuwl ; and
we nre to examine and try new caaiea by the
old Ian, and now compare ibis with what liatb
been done in fonuer tiiDE's.
1 ihall makean end: For my own part, 1 am
persuaded in my conscience UiaC there is im-
minent HaDger : I am jatis&ed in it, both by
the king's writ, and that which Is apparent to
every one | and there is a necetsity this danger
ibouid be prevented I do conceive (his writ
to be grounded upon tlus danger of neceuit^ ;
and that the danger appears sufficiently in tho
writ. — Ilicrefate I'conceive that the proceed-
ings »xt legal, aiul that there is good and suffi-
Finl, ITwt the power cannot be given to the
•heiiffbythe writ 4 Aog. to tax every man
■ secundum stntum et facultates;' that this is
Coo great a power to be committed to the
•herift: To that I answ«r. That I cunveive the
■heriff to be the fittestman, and most indifferent
for that purpose; for if there were conimia-
■ianera, or many men appointed fordoing there-
of, they might perchance be partial to their
friends: And the slieriff having dlt the free-
hotdera naotes, and the batlifb for his ministers,
that know the eitates of most men; therefore
out of all doubt he is the Sitest person. For
the exception to the Scir* Fnc' it hath been
objected, IJuit the king cannot by that course
ievy .moneys, because the king having no in-
terest iu ihe money, he cannot levy it by Scir*
Fac'; neither doth it appear in the writ, to
whom this tDOney is to be paid. I confess this
point, tbouub not spoken to by the defendant,
IS of most difficulty. Though no person cer-
tain is named, to whom this nwney is to be
paid, and the sheriS is only to levy it according
M the writ, and the king providmg a ship, I
■uppose that Sdr* Fac* may issue for it ; for if
a common person claim any thing, or be
wronged, or debarred from his rigtit, he hath
in the law a writ ibr his remedy : and shall not
the king hava the like remedy for' this ship,
being for the defence of the realm in general,
for which be is intrusted, to prevent a wrong to
be done to this common- weoltli ; But in this
case, the Scit' Fac* is not for Mr. Hampden to
abew cause, why he doth not pay the money to
(be sheriff, bnt why he doth not pav the money
he was assessed towards the iniiking of tlie
ship ; which for aught I kauw, when it balh
done the service, is the subjects again, at wboie
cost it was provided, for they might either have
hired a aliip or bought a ship. In Fiti-Her.
■ Na. Br. it is held^ t^e king may, for the good
of his people, send forth writs for removing
common ^nevances, and for repairing of bridges,
and the like i And why may not the king send
Ibrth writs, for so necessary a service as to de-
fend tlie kingdom P Clans. 1 Rich. 3, m.V.a
writ went out to the mayor and liailifF of Ox-
ford to repair tlie walls and ditches abont the
' town; and «hy not aswelltorepairtbe wooden
walla of the whole kingdom, as the walla and
ditches of a town? The kiag hath charge and
puwer over all, to see all done.
But it hath been said. When this money is
pothered, we know not what becomes of it. I
answer them with the common roll in Scacc*
t4. et 99 Ed. 3, where a commission went
forth to levy money for maritime defence, but
what WO) done thereupon is not expressed.
Bnt at that lime there was a cause adjudged in
the eicbequer, it is a Norfolk cause, where divers
being commanded to go to tlie wars against the
Scots, and had [hereupon armour and wages
allowed them; aAerwards comes ■ countet-
> go, oud t
Whercupoi
writ went oot i^alnM them, and the jury found
tbe ono guilty, uul lie wm ordered to pay back
The Abopment of Sir EDWARD CRAW-
LEY, Knt. one of the Justices of Com-
mon-Pleas, in the Exchequer-Chamber, in
the Great Cause of Ship Momet.
The record hath been opened, therefiire I
shall spore that labour. I conceire the Case in
(juestiun to be (his: Whether tlie kinp, by his
right of sovereignty, may charge the subject, id
case of necessity, to contribute with liiin (o lbs
necessary defence af the kingdom, without tbe ■
subject's consent in parliament^ Mr.'St. John,
whom I take to be tbe mouth of the defendant's
counsel, cunfesseih. That this queatioh is not
so much de re, gf nece^iy, but de modo, if
done without parliament.
This is one of the greatest cases that ever
came injud^eut before the judges of tbe law.
The kings right and sovereignty, in n high poml,
is concerned, and the honour and safety of the
kinjidom, on the one side; and tbe liberty of
the subject, in the property of his goods, on
the oiiierside. — Thia is the first cnose thai ever
come 10 judgment of this kind, that I know of.
kings haie not suffered iheir rigbti of sove-
reignty to be debated at tlie bar, as now it is;
for these a're Arcana Rcgni, not lit for public
debate. The use of law was to have cr.u«ei
debated ? as saith one, no man knoWi what
metal tbe bell U of, until he baarsit ring. Thii
bell hath been rang very roundly and labori-
ously on both sides.
The subjecuhave objected, that tbe^ nay
bring actions Mgoinst «Kcc(f of tbe kii^ liir
1079] STATE TRIALS, 13 Cm. I. 1637.-
mseumcnU bj virtacof thiiwrit. Butfiinhiit
I find no precedents, suve only one, which is
35 Ed. 1, [lie abliot o( Ho berts bridge's case;
and lie weu taxed double for ihia matter of de-
fence of sea and laod, in two seventl places:
Bpd therefore he broughrhis Bction to be dij-
charged in one place. But in caieE of this na-
ture, they petitiuned in parliament to tbe king
fur redreu, n Appears hj many precedents.
In Bractoii, who wrote after Hen. 3's time,
and inclined tu those limes when the tibetly of
the subject oas sirungly maiiitnined, he saith,
* ^>(unl rrgnum petalur, &c,' The/ used to
petition the king; but now you have actions
brought against the king's olhcen in the King's
Bcndi, Common-PleBS, and here in this couil ;
and it pleaseth tbe kini; to bring this Scir' Fac'
to the end thnt llie right of thii cause mav be
tried \>j tiie indues of tbe law.— In 11 'Rep.
end Coke's Comment, on Littleton, fbl. tO, it
is baid, Tliat the laws and customs of the par-
lianieni are obscure: ' Lei eM consueiudo
' porlionenli, quierendn eit ab omnibus, ignola
' B, mollis, et cuKiiita n pautis.' — As Tully said
of one that would define aiiima, and said it
nas muuca Harmon'a, that wai, ■ mi
* Homo non muUem teceuit ab arte
if I use the help of others, I hope you nill
pardon me for that.
I will briefly propound my order and mrtliod
through^iiit tije case. 1. I nill remote some
few iiEperiiiient discourses, which are not in
the record, as being out of the ring of this bell.
3. I stall propound, thnt the sole care of de*
fence, at sea and land, ' Jure Re^o,' apper-
tains to ihe kill):, and none other ; and tlint he
i« ^e sole Judge of this. 3. That the sole
.duAjje of dcleiice, in ordinary cases, regularly
and legally appertaineth to the king. 4. 1"
the extraordinary charges of defence ough
be supplied by the parliament, and upon ibis
rule, ' (juod uinnes tangit ab .omnibus debet
' sopportari.' 5. If ihc defence be of necessity
and the danger great, and so great as thekii^<
revettue is nut sufficient tn supply the occasion.
then the rule comes to be in use, < Qui sentit
' coinmoJum sentire debet et onus ;' and if it
be general, ' (Jnod omncs taneit, ab omnibus
' debet supportari.' 6. That in the defence,
where nil oucht to join, the sea aod land ou^ht
andci
c the n
7. I say, (here are some particuL. , ._
wLlch ibis chnrg* of defence cannot be imposed
by parliament. 8. Tliat the king solely is in-
. trusted, by the law, to impose tlus charge upon
t^ subject. And, 9- These being my generals,
I shall come to my minor, and conclude tliat
tbi* cliarfje is justly imposed by (he king, witlt-
out purlianienl. .
As to the Gnt imperlinency, you speak of
. tonnBi;e and poundage : is there any such grant
■on record f Shall we take notite of a thing
' dauut Gtiem :' be that taketh away tbe onli-
-The KiK^agaiaMt JciM IliU>ipdt»,ttq. [lOM
nary means of preservaiion, is the anlhor of
tuiii and deMniction. You see it it laken, bac
you cannot tell by >>h«t ri^hl. If ibis were
materiRl, yon wronged your client, you plewtetf
it not ; and if it it not ronleriali you wronged
ui, and yuur audituni, and yoanelves, to talk
You snv, this Ship-Monej hath been chafed
fur ihese three years together ; i» this discourse
•tithin the record i If not, you speak wiibou
book. You say, llie kiifg bath imposed great
Eums of money upon mA-ch and lies : but what
is tliis to the business now in question^ — Tbcsi
you Ulk of a property 'tlie subject Itneth
thereby; but this rattier to abuse tlie pea[de
without either colour or shadow. It was ' ad
' fucienduin,' or rather ' inficiendum popultmi.'
If you at the bar Imd not spoke it ' argumenb
' gratia,' it could not but hnvc proceeded tait
of the deplli of malice, or ignoranee, or both.
If one be found puilty of murder, and ibejndse
kaoweth the contrary, what shall be doDe ? He
ought to acquaint the king; ihtrewith; lor it i*
ihe king's right of sovereignty to panton, bat
ilia judge hath nn such power. I ay, tha
wliole cure appertainetli to the kinic only, and
be is the sole judge both of the defence at MS
and land. Fitz. Na. Br. fill. 113. ' Le roy de
- droit saver et deti-nder ton realme >1 Inoi
' vers la mere come «ets les enemis,' Eegiit.
fol. 137. 'Rex, &c. pro CO quod nos dignitatis
' nostne rrgiti ud proridend' salTationem regw
' uostricircumquoq; sumusnstricti.' Foitesqae
cap. 37. ' Omnes poteslat' regis deferre, &C.
* in defensione et luitione r^ni.' I tbink m
man can well oppose this.
But we will come to the third. The K^e
charge of the defiwice refolarly and legally ap-
pertains to tbe king. Bract, fbl. 1. ' In rega,
' qui recte regit, line duo sunt necessaria, amu
' et le|;es, Sic' with which wonb accords Jus-
tinian, in bis PrOKinium, from whence that ii
taken in Plowden, fol. 313, in tbe Case of
Mines. One reason why he saitb royal mines
belong to the king, is, because he is the bead,
and the people his members. And he is to
preserre the subject two ways : by aims to de-
lend tliem against all hostiliiy ; and by law, to
preserve ibem From injuries. 3 Rep. (bl. 11.
The body, lands, and goods of the king's debtor
were liable U ciecutiou ; ' qui thesaurus re^ii
'. est pBcis vinculum et hellorum nerri,' Rep.
11. The king's treasure is the ligament of
pence, the pieserter of the honour and safety
of the realni, and the Moews of war ; and is of
high estimation in law, in respect of the neces-
sity thereof; tlist iIk embezilini; of treasure
trove, thougfa not in the king's chest, istreswa.
And treasure, and otlier valuable things, are
so incident to the crown, that they cannot go
from the crown. He hath on tbe land, wara-
■hips, escheats, amerciaments, ice. for tbe
maintenance of bis honour and diftnilies tl>yaL
For the sea he hath whales, &c. These do little
towards tin army to defend tlie sea. The rea-
son why the liing hath the customs, it fcr the
protfctioD of raerchanti tipoa th« te*^ i^piHt
, j,.«.„Googk'
1081] STATE TIUA15, ISCbarlksI. IGSl.—inlheCauqfS/iip-Moiuy. [I0&3
piratei and ci
a of the re«1m. So I shtll
botli tor cire and charge, of tea and land, dolh
uppertain to the king.
'I'he next n this, which is my Tnurth head ;
That the exir^onliURcy charge of defence re^u-
larlj ought to be lappjied bj parliament, and
cannot be dune wilfmnc il. Albt^it sutnidies
be of gilt and grant, ;et ihis is of right and rea-
son; the \iing n pater palrie. If the son glee
to the father when he wanla, it is his duty. 19
Hen. 6, the rector of Clieddinginn'g case, whe-
ther the king may grant a discharge of ■
fifteenth ? It the king may grant n discharge to
one, to he may do to all. It is against law the
liiiig should nt>t Iiare subsidies of his people, in
case of necessity and danger; the sacne law
that willeth the king should defend the pcojilei
telbt us we sIsoulH gram to the king aids for the
defence. This is lo be dune in parliament re-
gularly ; and that this Fxtraotdinary chiirge
cauitot he impiised but in parliament, these are
their obJGCtioha. I come now to the atatute
De Tallagio non Concedendo, uhich without
(]uestioD i« ■ stntute, being iu nur printed
books; and in the Petition of Ki^ht, 3 Car. it
is recited as a itatule, and established : the
words of that are, ' Nullum Tallagium sine
' asunsu Parliamenti.' And U Ed. 3, cap. 1,
there the king expresses himself, he will not
impose any charge or aid on tlie subjects, but
in parliament, t'ortescue reciteth this to b?
the law, ■ Ho charge without parliaoiFDl.' And
Bodinus, lib. 1, bl. 91, sailL " That the sta-
tutes of Eogland are as a bucUer to defend the
■ubjecb against llie king, for laying any char^
upon them but by parliament." And in hii
sixth hook he magninetb this kingdom for the
due obserriug this law. Uiher kings, in this
point, have no more power than the king of
Engkind, for that it is not in the power ol' any
prince in the world, and liis pleasure, to raise
taxes on the people, no more than to take ano-
ther man's goods from him. And yet, never-
theless, if the necessity and danger of the com-
monw^th be such, as it cannot stay for the
calling of a parliaaent, the king in his wisdom
and 'tkresiglit may lay a charge without their
consent; and this is by the law of^ai gentium,
the rule .of law and reason holdeth ' qnod
' oranes tai^t ah omaibus debet lupportari.'
Amtsolcometo my fifth bead, Ifthe de-
fence be of necesiiiv, and the king's treasure
doth not suffice to defray the charge, theii, in-
stead of theTule ' guod omnes tHnt;it,A(c.' this
rule succeeds, ' itui sentit commodum, setitire
' debet et onus. If the treasure of the king
will not defray the charge, I do not com
be IS bound to sell or pawn bis crown, oi
lands, tbouKb some princes have been so t
teoua to do it, and tiaid it again.
You say at the bar, he oiuit spend all, and
more if be bad it. I will put this case in '
10th Eep. One is bound at the common
by prescription to repair a wall against the
yet in case of necessity, in BToidance of public
nitcbief, the prescription ccasecb ; yet la this
case, if repaTBtioti must be done, then Cometh
'his rule, ' quaudo impoteniia excusat, tone
qui sentit commodum sentire debet el onus.'
And if he be not able to do it, the cba^e being
itraordinary, shall he not have conlribu-
} The law cumpelletb not impnsaibilitim.
So the king is bound tn defend the kingdom by
' and by sea; but if the defence be so great,
he danger lends to the subtersion of the
kingdom, and the kin^ not able to make de-
fence, the king and his subjects ought to con-
ribute to this charge, in due proportion. ' Ubi
est eadem ratio, ibi est eudem iei.' If the
law shall moke this provision for a small level
of ground, i fortiori fur the common weoltb,
■ e time of estraordinarr danger and ne-
land ought to _..
sibletbat any island should be defended with-
out wooden walls of thpnavy at sen. Canutus
the Dane entered the Thames mouib with an
army, and afterwards went and landed in Dor-
setshire : and again shipped his men, and en-
tered the Severn: then he went into Worces-"
Icrshire, then he sailed back again to other
parts of the kiniidom : so lie that is master of
the sea, may make great spoil upon the land at
pleasure. The Netherlanders having a great
miles nff before the Spaniards could luarch with
their forces to make resistance; tlie Nether-
landers presently got a strong place, and after-
wards sailed to another place, and look that
also. These are no new examples, fjr islands
to be masters of the sea. Our eroiid army in
isas, nt Tilbury, vhai good had they done, if
the Spaniards had been masters at sea f It is
not powble fur an island to be safe, without a
navy at sea, as appearcth in sir Waller Raleigh's
History of ihe World : and if the sea most de-
fend the land, why should not the land be con-
tributory for the defence of the sea and land?
Tliere are several precedents where writs ha»e
gone to inland coontiES, to charge tliem to go
to the custody of the sea, Claus. 48 Hen. 3, 34
Ed. 1, 26 Ed. 3, &c. Writs hsve gone into
Berks, Oxon, &c. Inland couniies, to com-
mand them to contribute towards the defence
To the seventli. That in case of instant dw-
ger, the imposition cannot be by parliament, I
will here consider the nature nl the danger, as
Mr. Solicitor readily pursues it; ifit<»ncems
the essence, subversion, destruction, and ruin
of the kingdom, or the dishonour of the king-
dom, ' Quando Hannibal ad portas,' for the
senators then to sit duwo in their robes, is ra-
ther a charge to the commonwealth, than
aught else. It is no linae then to call b parlia-
ment, DO well-advised man will think ii fit;
here are ' pericula visa,' the danger is certain,
none will lay it is fit to call a pariiament. —
This kingdom of Eoglnnd hnlh been fuur lines
conquered, and therefore we hare reason to
forttce the danger; fin^ bj the Bomau, then
i...oi>;;lc
The maraiists do make three pkits of P
deuce. 1. ' MeiiioriaprEtenlorum.' S. '
WW] STATE TRIAl£,'iSCH.l. 1031. —lie King ^auM Join Haa^da,aq. [lUS*
snddeni;, and sach im^tioiu Uid apaa the
EubjecU cue JuK and neccssarj.' Tlu» b the
opinion of ^ose wnten, who wrote nolaccont-
l to the Ian of eaj odc kingdom, biu xxonl-
; to the law of reaMo. 1 could Touch ihrM
'o luithon, concerning the ri|hc of toremgn-
•khicli tliej gnve to kiaff, la impOM durgct
I the lubject^ without comentirt ptLriiamcni,
time of oeceuiCy.
But what if the king wiU levf monej, npoB
pretence of defence, io time of danger, aud div
poK of It otherwise, and the danger not ao i^
parent? 1 say, so pious and jiut a kii^ wiU
uerer preteDil a dinger, if it were not rt vira.
And If any man will think the kiog will dni|a
hinuelf and hi) lubJecCs to no pnrpose, far be it
from my thoughts to think so. Thia moocj,
thus taxed, is empbied accordingly, for tfa*
defence of tbe kingdom, togeth^ with the
king's own raoney ; which he would not do
by the Saxons, then by the Danes, and lait by
-*ie Nonnans.
f ProTi-
la prsterilori
' spicientia prstsenlium.' And, 3. ' Profiden'
* tia fuiurorum.' It much concerns the kiog,
tbe bead of the commonwealth, to be circam-
■pect in ibe preventii>n of public danger ; con-
«i;tures and probabilities are to be re^rded.
ow put tbe case upon a probable end violent
presumption ; k potent enemy is prepared and
ready to come. Is It nnt fit there should bs a
defence prepared instantly f Besides, there
nay be just reason oi state, why an enemy is
not fit to bt revealed in parliameDt; fur if
great preparations be, and tery probably
•gainst us, then to discover them to be an eue-
roy, is to give them occasion to become a chal-
lenger. No man can know the certain event
of things. One may be a friend, in shew, to
tbe kingdom, or a neuter, not vet openly dis-
covered; yet we may be mistaken io oui opi-
nion of them. I leave this to your considera-
tion, whether it be fit, or no, to discover our
thoughts, in partiameDt, of an enemy?
The eighth thing is, I'hat in these cases, of
necessity and danger, the kin;, jur« geiilium,
may cliarge llie subject, without his consent in
p^llameiit, by bis regal prerogative ; for in the
king there are two kinds of premgativL'S, regal*
et Ugale, which concern bis person, lands and
Now for the prerogatives royal of a monarch,
they may be resemblcUto a sphere i tliepn'miu
motor is tbe king. It is observed, that every
planet but one hath a little orb by itself, that
raoveth In its petty compass : So the center ig
the commouweihh, the king is the first mover.
I will repeat some of these prerogatives, for
they are by all Uws, and by our laws. — The
first regal prerogative ij this, tliftt containelh
all tbe reft. That the king may give bwa to bis
subjects ; and ibis dnth not detract from him,
when he doth it In' parliament. S. To make
peace and war, ig Ed. 4, 6. 3. To create su-
preme mug iitratcs. 4. That the last appeal be
to the king. 5. To pardon offence*. 6. To
coin money. 7, To have allegiance, fealty, and
homage. Aod, 8. Tu impose taies, without
common cooBent'in parliament. Tliese are the
principal, and there are many ranre of them,
and allowed bv Ian. Comines, fol. 179, saith,
■ That if the cloud beseen but afar off, the king,
< without the consent of the subjects, cannot
■ tax them ; but if the cloud be over-head, the
■ king may call ceniun nlsc persons to hioi, and
' tax his subjects.' You say, That if the king
doth move a war offensive, there's time enough
to call a pnrliament ; if defensire, the clund i
seen long before. But, oh, good sir I is thi
always true i Is not tbe cloud sometimei eve.
over the head, before descried f If you read
Comines, lie will tell you, That in tim
peace ie ought to fortify. ' Bnt in
''cases, nhere the danger is immlDent,'
Bodinui, Ub. 1, cap. 47, ' tbe king ought, not
' to etpecc » parliament, but i* to rnite monies
upon pretence. ,
Again, the king is paler patri^, there&ie, by
the law of nature he is entrusted with the *J«-
fence of the kingdom : and thia power to t
s people, is but a consequence of iliai.
To say, in time of extraordinary dan^r ftiid
necessity, ■ Boni viri sunt aibi leges,' I say, fbr
every mau to be hli own judge, is for every
man to do what he iijtetti. Mr. Hulbome teil*
you, That if it rests in the king's power thus u
tax the subjects, whereas Mr. liampdcn is now
taxed 30f. he may tbe next year be taxed at
sol. for, saitli be, ' If the kiiig may tax whesi
' be will, then he may what be nil!.' It is aa
ill consequence y«u make of it ; you loagnify
parliaments, great rrauin we have fur it ; let bi
do so of king! : let none thick diifaooauTaUj
of kings ; no question they niU regard tbe lawa
of God ; and to make such objections, is net
handsomely handled.
Now we cume to Precedents, and Acts of
Purliament, For precedents, my brother Wet-
ton hath taken pains to repeat tliem, tberelbr*
I shall not. — Iwo precedents the defendant'i
coQtisel bave mtuh relied on. Rot. Purl. S BJch.
3, para 1. I have here the Record ; and in
truth, it were a great ease to the judges, and to
tba cause, to avouch them truly. Iliis of Ri-
cbard 3, was iu his minority ; and no Older be-
ing taken for tbe defence of tbe kingiloa
against the next summer, nothing was found in
the king's Exchequer : a council was caLed,
and for conclusion, they say, Tb^cannoc re~
medy this mischief without s parliament :
whereupon a paHiameat was catfed; and in
tbe mean time tbe kii^ having oioniesteDt him,
he gave security to repay it. — Consider this,
tbe king was at this time but an infant; it was
.in a very troublesomie time, many of tbou
that were parliament-men made de^lt to at-
tend, excusing Ihemselves, that they had other
business. This then that was done was but a
resolution in troublesome times ; this is no cndi
binding business, that it should be mada so
much of. — And Rot. Pail. 3 Heu. 6, m. ti, a
commission went forth for the providiaf of
batjes ; and tbe conaiQai pQitiooM) to avoid
1065] CTATETRlAt^, MCnAnat.l<ii7.~-naeCaK(^Sh^Motuy. [109(1
tbis cha^, •lid pr«j«d that the cnmmission
DURbt be repeiUed. And the king upon this
calls in fbe coimnissioD. Shall tUs ha a dis-
cUinter of the hint's ri|Ei]tf He saith, he will
speak with hU lor^. This is onl; n tntisfac-
toTy answer. Bcaidea, the king was but an
Daurper. Now to snj this answer of the king's
is k reiolution in the case, is n great mistake. —
He tb:it will go throogb this load of- precedents :
that have been vouched on both tideit, he bod
need to hare more lime than Mr. Holbonle,
who spent fonr da^.
Yon have alled^edprecedenti both before the
Conquest and since : that of the Danegdt,
though it was a heavy joke, yet it was nectssa-
nr to be biirne : whether it was granted by par-
liameat ur no, tun rorufof. I say, it is a good
precedent,' and I bold it good without parlia-
meat. — Some distressed kings, as kiog John,
HeniT 9t and Kichard 3, they did indeed do
that ,by borrowing, which tbey might have took
' ofri^t.
Kuw, to give an answer to the statutes of 95
Ed. ], and 14 Ed. S, and the Petition of Right
vf S Car. Admit, I say, there were an express
act, That the king, were the realm in never so
much danger, should not have aid froni bis sul>-
jects, but in parliament, it is a void net ; will
any man say sach an act shall bind ! This
power is as inieparnble from the crown, as the
{iroQouDcing of war and peace is : such an act
IS manifeslly unreasonable, and not to be suf-
fered ; saitli Doctor and Student, To follow
the words of the law, were, in some coses, in-
justice, and ngiinst the good of the commoD-
wealth ; wherefore, in some i»ses, it is neces-
Mry to leave the words of the Uw, and to follow
that which reason and justice requireth : and to
that intent equity is ordained, which is no oth9r
but an exception of Che law of God, or law of
reason, froni the general rules of the law of
man : Which eicepdon is tacitly understood,
in every general law. This imposition without
parliament appertnins to the king originally,
and to the successor ipio facto, if he be a sove-
reign in ri^t of hie sovereignty from the crown.
You cannot have n king without these royal
rights, no, not by net of parliament.
Again, these acts bind not, for that favour-
able constructinn, in cafe of Che king, is to be
had in all caipr, Doctor and Student, fol. ST.
It is not possible to make any general rure in
law, but It shall fail in some particular cose : if
a law were made in a city, that no man, under
pain of death, shsuld open the gates of the
city before son-rising, yet if the citnens, before
that hour, flying before their enamies, cnme to
the gates of the city, and cue, for saving the
otizens, open Che gates before the hour ap-
p<Hnted, yet he offendeth not the law, fot Chat
case of necFsnCy is eKcepted from the said ge-
neral law by eqiiity. So for tlte statute in
Edward the third's time, not in give any relief
toastuidybeggar, upon pain of Imprisonme '
yet if one relieves bitn with cbches in the
trenity of cold wtncer, to save his life, he si
be ncuKd by the same itat«ifc By snob an
Impossibilities are to be excepted uat ot all
laws; 'Nemo tfenetor ad impossibilia.' Po-
vertyand impossibilities, us one answered, were
more mighty godde»e> ibao either force or
Bat now von will sny, where is this danger I
Hew doth this necessity appear? Tf yon would
find it, you need not to enquire for it either by
sea or land ; but in this very record, the writ
sheweih, and ^le most bvourable conscroction
is to be had for the king; as in Plawden'a
Comment. 336, the Case of Mines ofgold and
copper.— Now alt ibis while I have been in the
general, and in a manner in propositiona ; I
come now to applicition. Before I descend to
it, I shall shew upon what port of the record I
shall grountl mytlelf. Though in the Mittimus
it be ' salus regni pericliiabaiur,' which is add
to be metaphorical, for that it askelh no great
niisivrr ; it is good enough, as in the writ of
Oyer and Terminer, 'omnesqui habenc dam-
' Hum vel stiivationem,' are bound Co contri-
bute. Will you bbd the king to the languaga
of J. 8. } May he not e^ipress bipistlf in wlut
legal manner he pleaseth?
You say, that this phrase of*ii/ii( r^fni it
too general: if it be alledged, and you demur
upon it, you confess this I'ur the most advan-
tage for ibeking; esin theCaaeof Mines. It.
is not nUedged in the Scir* Fac*; this might
hKvebeen madea good question. — But without
all thesc,I conceive the writ! Aug. contHiueth
the causes for this great preparation, and ex-
presscth them in particular. What if it were
no more but this, lest we should lose the domi-
nion of the sens 1 What is it to be Ealled Do-
minus Maris, and not to mtiiuiain it, but to
suffer this princely honour to perish, and otiien
to become masters of it? What havoc and' cun-
tiision would follow? And this is the true in-
tention of the issuing forth of this writ.
Nci^ ' ■Consideralis etiam periculis, &c.'
that is, the danger is so evitleot, and so treat,
in these warlike times, thpt of necessity de-
fence must be made, both by sea and land. —
NfLt is griieC •ppression used at ibis time,
' Dutum esCnohis intelligi quod prsxlones, &c.'
tliat the pirates do take and spoil our meF-
chanta, carry uur men into captivHy : what will
vou say to this? Let lliem talie our men, and
let us have a parliament, and we will bring
them home again : the land was never without
thieves, nor the seas without rubbers.
Next, ' paracum periculum et preparans,
&c.' Now these ships go for the defence of tha
sea against this danger, ' et vestrum et vestro-
rum.' The writ saitb the whole kingdom is in
danger, both by sea and land ; and you have
con&SMd this by your demurrer. — But you
complain before you are hurt, because you
have seven rnonths liberty, a parliament inuht
be called in that time: now in this time of im-
mment danger, it is no thne lA call a patlio-
You say it hath cootiniiod (k thR< yeon.
C.oo.;lc
1087] STATETRIALS. ISCh.I. 1637.
Put the cue the danger contioueth fi>r thr«e
years, and tben ceaietli, and then ilie king
ceauth [o laj a charge, and the danger begins
again tbe arxtyenr; what ! Shalt not the king
require aid asihe danger increaieih? — Atiiinon
to conclade, wiihaut repebtion : it doth apjieai
bj this record, thnt the nhote kingdom is iti
duDger, both bj sea and laod, of ruin and de-
itruction, dishonour and oppression; ani:
the danger ii present, imminent and instant,
and greater than the king can, without the
aid Ol hit subjects, well resist ; whether must
the kini; resort to parliament!? No. We see
tlie daoKer is instnnt, and admits uf no dela^.
Shall we go home, and sit together in cnreless
■ecuril; ? Not to. Bui let us resort to our
pious and just king, whose prerrigatire and
tight of sovereignty is to der»nd the realm, and
10 maintain his subiects liberties. And so I
give Judgment for the king.
The Anoi'MEHT of Sir ROBERT BERKLEY,
Knt. one of (be . Justices of the Court of
King's-hench, Feb. 10, 13 Car. 1037, in the
£icheq ue i^ Cham her.
The Case.
til Aug. 1 1, of [he king's reign, there issued
out of llie couit of Chnncery his niBJeity's writ,
di[ected to the sheriff of tlie county ot" BucLs,
, and the bead officers of Tillngea and bumujjbs
iu that county, 'etprobis hominibui,' that is,
to all (he ting's good subjects, ' in onmihui
' villis, bQrgis, et aliis locis in cotn* Bucks.' —
I may call this writ, a special nric, nr tt com-
inisuun upou the case. It is not a tic mfr' - ■*
hqjinueth with divers we^htif reasons orca
'pro rafione, oC tlie issuing of it ; a<, 1. H»
jesty bad intelligence thnt certain pirates,
' et maris graesatorci,' as well Maliometans as
others, were congregat'i upon the sea, ' qnod
' ab oliui per gentem Anglicatioin delendi con-
' suerit;' and did daily rob and spoil the ships'
•nd tbe goods of the subjects of (he king, and
of hiLcon federates, and did cautiv:ue the p6r-
liias of t)iose uhom they looli. — 2. His ma-
jesty did conipicert. that thusc men did ' nari-
' gia indiei prscparare, ad mercalnres ulterius
' moledandos, et ad rt^ium^ravand' nisi citius
* remedium ponatur.' — 3. His majesty did con-
sider the perils, "^ qu« undique illis guetriiiis
' teuiporihus itnminebonf, iia quod r^i et sub-
' dilis suis dcfensioni maris et re^ii, omni fes-
' linatione, qui poierit, couveniebat accelerare.'
— 1. His majesty's royal resolution was, ' De-
' leniioni regni, tuition! maris, securitati subdi-
' torum, et salv^e condtictioni navium et mer-
■ chaudizarum providere.' ' Manime pro eo
' quod' the king and bis progenitors ' domini
' maris predict' semper hactenus extiterunt, et
< ptiirimum txderet rei^em, si honor iste regius
' suis teinporibut dispereat, aut in aliquo ininu-
' BtuT.' — 5. Lastly, his majesty called to mind
a ' Regkila juris et rationis ; Onus istud defen-
' sioni* quod omues tangic, per omnes debet
' supporinri, prout per legem et consuetudinem
' xtj^ui Anj^i« fiari cautuorit.'
~T1ieKhtgogian*lJohnIIampdai,aq. [lUBS
Upon these nKd reasons, as upon i fea
foundation, the Mandnmut of the vm ii
grounded, and followctfa in the nett place.
The Mandamus is, 1. Thnt Blithe; tanlra
the writ is directed, sliould araone theni, ' pio- I
' videre unam iiavem de ^uerni,' of lucl] i
ing, and from thnt time, for 28 ireets, 10(0
with his majesty's and other subjects dip),
and to attend the direction of those to ■bom
his majesty should tlieti commit the cuiloiljn
(he seas, tor tuition of the sea, and deicact of
the realm. — 3. That all this be peribnaed, 'xl
' cnsiagiu' of themselves ' tam in vicioilib»
' quam homirium salaiiis, at aliis ad guerrm
After the Mandaniu*, an Asj^avimiH, a
commission to the sheriff and the bead oftctn
Cometh, and then directions to tbctu.
The commission to the &berilT is Met ^
That he shall make an asseuuient ■secud^did
' faruiiales cujusque,' for contribution to tie
eipence of the pronsioDS i foresaid, shall tp-
puint oilleciors, shall levy the monej to K
assessed (if it be deniedj ' per diitriciiiwo
' aliosve modos debitos,' and ^all ' ciran
* mancipare^ iliose who sbnll be 'contranitl
' rcbelles.'— The directions to the sheriff !*p"
with a clause of ' Nolumus.' The kinj for-
bids that the sheriff shall levy more ibannnr
ces.iary for the eipences: that aoy roootr
levied 6ha.ll be appropriate to any ottier W
' quovii quiesito colore :' and theo, l^"'',''"
case that more be collected ihun slwll »«
useful, the king commands that resiilutioii w
made of tl.
After this bill, 9 Martii 13 of the king {^«l<
is above a year after the ship should latt
been ready at Portsmouth) a writ of Certwiin
issued out of the Chancery, directed to tbe le-
venil sheriffs pro (ampore of Buckingham""*
—That Certiorari recites tbe »rit of Am*
11. And for that tbe king was iufbrmcd, ttal
some had not paid the sums assesied up<«
them, but refused to do ihe same ; the '"t
commands tbe said sheriffs reapectivelj to cer-
tify into the Chancery the names of s«hrf
liners, and the sums aswasetl upon t'*'^, J^
sheriff, accordingly make returns in aschrt"*
annexed to (he Certiorari. In "ne (^ "»
schedules there is, inter alia, ' Stoke H»««-
vile, Mr. John Hanuiden, 1/.' . .
Afler this, by writ of Mittimus out W ""
Ciiancery, tested in May la«^ tlie tenure ol '«
mt of Aug. 11. with tliese -words, ' q-od^-
dem brev'pr<i eo quod regu' nostr'AngI*"
popul' Qost' ejusdem pencliiahatur tf'"*
cumvimus inter alia brevia ad buju«i.wli p^
visionem, et assasaamene facieiid' f^"'^
comitatus Aneli*,' &c. And «iw ">» 'TV
of the writ of Certiorari, with iha rftura of fj
and schedule aiineied, are sent '">la IM
of EEchequer^Bj that Miuimus tb* t'"«?r
nunds the lord treutirer and baroUi f"
u,_ .Goovic
I0S9] STATETHIALS, ISChaelesI. I«.-i7.— ib/^« C««?f5Xi>-JKbn^. [1090
tpetlii tiMHe records, thej ehould ' &cere ulto
■ riin indc pro lev&tione, culUctione et rrccp-
' Clone' of the suon uiipiiid, ' prout dejure, ct
* aecundnm- legem et contuttudiaeBi rei;ili An-
" ^c fuerit facienrt' ci ooo alilewl — By ithicli
(pratil) but capeciiilly by tlic (ntm alittr) tlie
Iiiiie'* honour luid care of justice are air^jularly
•minea^j for the leryini; the money aaevi 13
ant comnMnded,DBy,it is forbidden, Diueu,'Jua,
* Lex, et Coniuetudo ^tnglim. ' do wmnt it.
, Afcn thia, tnd in ilie wune moodi of May
htt, t)i« bftroBS awarded a vril of Scir' Fac' into
BuckiDgliomahire, agniiiHt tlioM wbote numti
•rein the tcbedule afuresaid, (liereby command-
iug ihe iheriff to warn tbeiu to appear b the
fichequer by a day, to ^cv cause, if they can,
why ibey abould not be charged witb the pay-
ment u{ the sunis of mnney nssesied upon tliem
■Dd unpaki.~The Scir' Fac' is always a judicinl
i*rit; and certainly the baron* bare prucet^ded
v«ry judicially and grardy, in awarding of it.
Li weighty etict, especially, if they be not nf
dan ia rctanted gamiabcd. — He appearing, nud
haTing heard the aefcral irrilt and records be-
ibfe-mentiaaed, without taking the cominon or
any cthsr protestation, hath dtmurred geiie-
rafly. — The wwds of his demurrer are, That
oflerui fenldita in the aame recorda, ' iniaua
* nfiicteu in lege eiiatit itd ip»uiii onerandum.'
-"He doth not say, that maleriii is miiua vefa ;
but, Bcknowte(l);ing the nihtter contained in the
writ lo be true; be putleth ilie cause dc bono et
mala, opon sufficiency or inauSiciency, in point
«f the law, for charging him. — Mr. Attorney for
the king hath joined in deoiurrer. — Upon ihi^
demurrer, one main or grand qtieslioii, and
aome other inferiorquestiouK, have been started.
Because I faaie time little enuiq;h fiir the
grand qoestion, I will not trouble you with ar-
guing, or so nincb as singlini out the otlter inre-
rior (jueslions. My brother Weuon liatli jpoktn
to some of them, I concur nitfa him.
The grand question is iihonl^ this: Whether,
as tliia caae ia, or in this special caie, (as it ia
upoa the pliadinK) the charges imposed by the
blag upon hi* subjects, for pruviiion of shipping,
witbcMit common consent in parliament, be good
in law, ^ea or no f
This IS a quastioB of eitroordinary weight,
Afiafiaile consequence, tlie greatest that ever
cuno before judges of onHnury courts 6i jns-
tica.-^' Qui ad panca reapicit, facile proniut-
' tjat ;', but he tiint will determine in this ques-
ti«D, must * respicare ad multa, eoqoe mB£;i)a et
' arduB.' — Upon the debate of thia queatioii Vt
the bar ; eliborata, kamed and strong argu-
menta tunc been aaade on eiclwr side, And
truly, for my nart, I hare laid ihe ijuestion to
ny Iwart. All the areumenis which have been
stade in.it, 1 have bceit present at, and spe-
ciiiUy lii«ded. All ibe recard^ which hate been
bruagbt ta the jadf^it, on either side, I bave
rend orer aa serinosty n* I could. I liave like-
wise Cooaidered nf the reaaons and ainboridea
in law, peninaai to thia case. And upon my
Tot. III.
pains, deliberation and study, I have concluded
wilhiuyaeir,aiKl inniineonnundtrstandinf^un
saiialied, and think I shall uitiary otlierf, that a*
tlib casie stande'b, upon the records in the
pleading, or in tins special cjse ; liic cbaqp im-
posed ii good in law, and con^uonily iliat
Judgment ought to be given ugaJnstMr. Itanip- ,
dcu, qtutd oncrelai:
For my ch.it de]iie[y and expresibn of my-
self, I divide iJI that lahalt s.iy into ihe^e lour
lieads.— 1. I will sinte tlie case, itiid will settle
the proper quesiiou o( it, as the pleudings ara.
(The true stating and settling of a caie con-
duceth mncli 10 the right answer of it.) — 11. I
will c u aside r the policy and fundameDtiil rules
of the comu.on law, applicable, onto ibat which
upon Mating the case sliall appear to be the
proper question. — ill. I will consider the acta
uf piirliiiujeut, the ausucr Co petitions iu parlia-
laent, iind the several iUaitua Chatta's of the'
liberties of Ji^ngland, which concrtn ibe kin^'*
proceedine in this cB«e.— IV. I will answer ih«
materiiil ohjeccions, which liave beeii made on
the other side.
Upon my FiaiiT General Head. — I hope that
noue doth tmagioe, ibat it either is, or can be
of tha
bifiber the tins may at
all limes, and upon all oci:ssions,impose chaises
upon bit subjects ill general, without ctmimon
coo^eirt in parliament ? If tlmt were made the
question, it is questi unless. That be may not. —
The people of the kiii^itum are subjects, nut
slaves, Irecmeu, not rillains, to be c-iied d« aif
Though the king of England hath a monar-
chial power, and liLith 'jura sumin.'e tnnjesia-
■ lis,' and hath an absolute trust settled in his
crown and person, for government of his suh-
jei^Is; yet Ids Eoveniment is to be ' secundum'
' leges regni. — Jt is one nf tlie queitions In the
' jurameoium regis,' at Iris twronation, (see th*
old Magna Cliartn, fol. 101.) ' C^oiicedis jnsia
'leges e[ cuasueludines regni esse tuendusf
And the kiiij; is to answer, Concedo.— By thoea
laws the subjects are not tenants at the king's
will, of Hhat thcjr have.— They have in their
lands ' Feodum simplex,' wbicli by Littleton'*
description is, ' biereditus legitima, vcl puro. —
They have in their gtKids a property, a peculiar
interest, a ' meura tt tuum. Ihey have a
hirthriglit in the tana of the kingdom. No
new liLU'B can be put upon them ; none of their
laws C.111 be altered or abrognted u'ilbout corn-
Thus much I speak to avoid misappreben-
]as and misreports opon that which 1 shall
y lit this case; not as if there were cause of
sayiu); so iilbch upon any thin^ challenged on
the king's side. Wehave in print his majeety'*
't grnciDui Declaration, that it is his
ihac tbe people's liherlies strengthen
tlie Ling's preminiiive, and thai tbe Ling's yti-
■;ve is to defe'id the people's tilterti' s.
rondly, Though Mr. Hampden's C')nn*el
bare spent all tlivir iiowder in citing a multi-
tude 01 records, bt^nuing with one in kin( '
I09I] STATETRIALS, nCa.L lOil.-rTU King agaiiutJoSaILuiipdai,aq. [10^
Is aenins
for the king"!
defenre : in
iliipi, hoTSta, a
in cases whei
in the king's \
Jiihii'f time, ao<l »■> dimnwardi, to prore, Th»l ;
the kingVi niiiiUters hnte paid, thnt the Ijiiruni
have beeii by ivriti commanded somelimcs to
Ky, sometimes to uiakeii]ln«ance», oat ufTlie
lo'i muiieys or diu^ — in casis of 1oreii;n
auiiliary, and yolimtnr; nets : in c(iiC'< of
particular or ordiiinrj defence of the renlin, ai
upon leliellinn of subjects, or inroads b^ ene-
mies, into parts, marches, or maritinie ; sucii
enemies I mean, as are nut greatly formiddblc,
ns are apt to tun nway wlien tliey hear of nny
force coining ngainst ibem : in cases of selling
forth ships, fur scouring iLe teas fmni petty
pirates, so ihat merchants may bnve snfe pas~
sage ; in cnses wbere victuals, or other provi-
tiim;, were inken from particular penonB, by
way of purreyance, fors(ridiers, or for ibe king's
army ; in cntes of borruwini; of money by toe
king's officers, for war, or ordinary or esiraor-
''dinary defence: in cases of taking moitey or
eoods aeainst the ownei's consent, by warrant
' ■ -, fir war, or otbir nisnnfr of
tses irheiD pariicnlar men's
armour, were lu»t in the wnrs:
« private men's houses ntre used
„ iervice : lastly, in cases of genernl
nnn cxtraordinnry defence, nhere the king
liad sutEcieni aids for that purpose granted to
him in parliament. Although I confess it be
true, that (be king in all these cited cases, must
pay of his oud, vriilioiii imposing upon tbe sub-
ject ; yet 1 .say that those Cases come nut close
lo our case ; for every of ihuse cases lialb a ma-
nifest, particular, and just reason ; bnt none uf
thwe reasons are npiilicable lo ibe case luiw
in question, ns is exsy to demonstrate, if a
man would enter into every of tliesc particu-
lars; »bicli I JurheBr,fiir saving of time.— And
^tese records being tnken away, the niuliiiude
- of tbe vouchers on Mr. Hampden's >ide » ill be
greatly abated,
Thirdlv, The case of lire ancient tribute
callud banegelt, of nhich Mr. HampHi
counsel harb spoken, tlmueh it come iier
than any of tbe Cirnier mentioned casts, yt
much dilfers from tlic cliarge iuiposed iii
Ithnthbcen snid on Mr, Hampden's si
1. Tbac Daniegi'lt was not imposed, but by
cuinmon assent of pnrliainenl. 3. 'ilial nfrei-
it was so imposed, it was released by Edward
the Confessor. 3. Thnt it hath been now so
long uncollected, tlrnt it is scarce kuoHn ahat
it was.
To ibe first T answer. That the proof- ur|>erf
(bat it was treated by parliament, i^ at the best
but a conjecture, it hath been said, that the
■ ords of Leges Edw. Confessorii, c. ' "
one place, ' aiatutmu est Dsn^eldu
■ tin) reddi, &c.' and in another placi
* geldi reddiiio primiius instituta est, Ac.' And
VMlulvta is a proper word fur an act of parlia-
menl, a statute. But in my undcratanding it
is apparent, that it had not crention by common
nsseut iu parliament, but ooly by regal autho-
rity ; or at tike mo^t by tlie king, nitJi his ^rcat
brds atseut*, nhicb i> xitots, and aftet '
was frequeot. My reasons are, IM. Tn Tilba-
rieuiia, or tbe Black Book of tbr Eicbeqaer,
I. ] , c. 38, ibe wr>rdi arc nprcu, ' A r^bns
any others »hu joined iii that itnliitnin. Sdiy,
It appears by llie said Leges £dw. Confesa. c.
II, tnat at the beginning of Daocgelt, ' omnia
' magis confidebant ecdcsis oration ibns, quani
' Brmorom defensionihas :' and yet io tbe addi-
tion to the said Leges, it appear* that William
Rufus imposed that tribute upon the church
also, and that without common assent. For
tl,e words are, * Danrgeldum coocesium eat ei
' a ba[r>n]bus, non lege statntimi Deque fimla-
' torn ;' and certainly tliose baions by wbom it
was concettam, were not all tlic bantnage, for
it is plain, thnt tbe bishops and mitred abboti
did not consent, 3dty, In that rlstiae wlien
\iu est' is use^, in Leges Edw. Confcss-
tbe Dancgelt is said to be IJd. ' ex unaquaqoe
' hida;' and afterwards it doth appear lliat it
was made 4i. by William Kufus, ' ex anaqm-
' que hida, eccl^sia^ non eicepta ;' which ii-
cresse hoi most unjust, if no more but 19d. was
liiniled by common assent at first.
To (he M^coud. I answer, with sir Henry
Spelmnii's distinction, there wcic two kinda.of
Daiiegelt ; one, ' ad pacandos Dnnoa ;' ano-
ther, * ad arcendos Danos,' and other pirates.
It may l>e, tiint the Confessor released tint
' ad pacnndos.' fur the Danes tnubled not
this kingdom in his lime, they bad enough to
do then at home, and so there whs no cause of
collection of any taxes ' ad pacandos Daiios :'
and (hough it was Je ,/(ic(u exacted by the
Danish kings before Edward tbe ConJessor,
viz. CtmuCe, Harold Harefoot, and Uardica*
note, it was uujustly taken by ibrm, the cans*
of Krant of it ceasing in their lime ofsovereignty
here; and that might be the causa of the Coa-
fessor's dream, that be saw tbe devil daocinf
upon the money collected in his time for Dane*
gelt: nliich supposition of a vinoa occa-
snined him to release it, as it is writteD. But
certainly tbe Danegpit ' ad arcendos,' lie
was not released by Edward tbe cm feasor r
fur it nppeHTS in Tilbnriensis, before cited, ibat
* Dan^^eldum sub iodiitenis regibua snlvcbatnr
' usque ad tempos WiUielnii piimi ;' if ' sab
' iodi)teais rcnibus,' then under tbe Canfeunr.
— Again, it appears in Lejies 11. 1, c. IS, ihat
Danegelt was in tliat king's time a duty to tbe
king : t-r tUc words are, ' Dniiegeldum si ad
' lerminuin non reddutur recta emeixletur ;"
cr^o, not released by his predecessor Ed want
t^e Cuufessor. I further find in Ranalphu*
Cestrcnsis, that ' Siephanu* ret, r^nuni iaiens,
' Danegeldum, L e. Ei, ad hid am, quos anlectr
' Boressui singulis annis accipiebaut,iQ EtenluB
' cuudonavit :' which ' cnndonavii' shews that
he as a king dejacto, had a right tu it, rrgo, not
formerly ideased. But fiir the tnlidity of such
a release by k, Stephen, a maaifest usorpni
leading to tbe diminution of the crown, espe-
cially if it were of a tribute granied tu tbe
ciowu by act of p vliauieot, see 0. E. 4, f. !.
1093] STATE TRIALS, 13 CriAitLGa I.
To the chM I aiiimr, That it it true, it is
obscure what the Dancgelt wns; ynu hnve
heard hj whu- ban been ciied, mention of li.
fi«. and 4i. tu be ihe una of it ; uiirl truly, I
tbink, it wal more or Irsg, nccorriing ii> the
occiMOD of the iDoDej' tor the defence: ibe
tnbuCe * ad pncandos Uniicw,' I believe at first
WM but ISJJout of every hide, jet alUrwards
increased by the three eiicccS'Ivc kings, Danes
themselTei, for I find it was at first but about
10,000f. peraun. it aflerwagmiieil to 30,000/.
tlieii to 40,000/. and lastly to near 50,000/.
which huge lutn was in tliese tim^s a burde.n
insupportable to tbo people. B.it bowever,
■he uncei'tninty of cbe sum, especinlly If you
uoderstBAd that whicli mis collected, * ad bt-
* cendoa Danos,' i^ a clear pnxif, that it was not
creitted by act of parliament, fiir then [he *urn
thereby eertidn could not be mounted. — .lit
liiitonans do agree, that ihe ongiiuil time of
Duuegelt wai iu k. Ribelred's rei^n. I ob-
ser>'e, that k. Bihelred shewed huixdf wcuk
and improvident, i[i that \ie looked not to rnite
menns tor di;lence of bis realm ogainsl the
Danes in time ; but when the Dunes were mas-
ters, then lie begun Co pruiide against them.
And for that cause divej-s iif uur liisloriBti*
write, that he was called by a ni.'Anamc,
Ethelred the Unready. But, on the oilier side,
we the subjects of England, wIid enjoy our-
■cItcs and whu we have in peace, through his
nnumblcnanie of Charles the Resdy, or Clinrles
the Provident.
But, to return, the diSerencea between the
auttent DanC);elt and tiie charge in nnr CB
•re apparent and many; for ihe Dnhegelt wi
1. Annual : oijrs i* due only in case of ii
cessity. 2. It wa> collected ont of hides of
land, and thence calli^ Hidngi
lected ont of personal as wt'll i
H. It was a tribute of money : oan n proviiiui)
of sliippir^ and attnour in kind. 4. It w
ngaiust piralea r oun is for common defence
«ea and land. 5. ll was «iot genera! : clergy
and clergymen were ori5innlly exempt ; -
general, upon all without exception.
Lrgt the words of the auihoriciet unner
written, from whence many ubservations and
gnitd cooclusioni may be drawn touching Dane-
Leges Edw. Confess, c. 19. ' Dan^eldl reil-
' ditio, propter pimtns primitut iostituCa est,
• patriaiii eiiiin infestantes vestationi ejus pro
' posae suo iusillebant ; ad quorum insolenliam
' reprimendam stacutum est Danegpliluin an-
' nuatim redili sc. la denaiios ex unaqunqiip
.< hida totius petriie, ad conducendum ens qui
' piratarum irroptinni resistendo obviumnt. Ue
< Iwc qunque Dauegeldo libera erat omnis ec-
• eleaia, quia magi: confidebani ecclesis orati-
' onibus, quam armorutn de&nsionibus. — Hanc
• libertaiem tenuiC An|jlorum ecclesia. usque
■ ail tempus Willielmi junioris. Danegeldum
•concessum esc ci baionibus, non lege statu-
t. torn, Deque firmatum ; sed babuit
i63Tr— ill tlx Case qf Slip-Monty. [1004
' causa ei onnquaque bida 4 solidos, ecclesia
The Black Book of (he Exchequer, wriiten
in king tlrnry 2's time, in tlint part which is
Tilburieiisis's wroik, or the Macister ad Disci-
pulus, it is lib. c. 33, mit c, 11, as it js mis-
piinicd ill learned <iT Henry Speliiiaii's Glossa-
ry.— ' Ad Danos arcendos, a regibus Anirficis
st^itutum est, ut dc sinpilis hidis jure quodam
perpeluo duo wilidi ar^rntei Kulvertntur in
utius virornm foriium, qui perlustrantes mari-
liina inipetum liostiuui rtjlriinr rent.— Qui
igilur piincipaliter pro Diiiii'i institulus t !it hic'
redditu>, Diincgeldum dicitur, hie sub indi-
genis regiijns siilvebiliHr uvque nd teinpnrn
' rejiis Wiiliotini primi. Ipso niimq; rciinnnie,
' tam Dai/quain caster' lerrie mari-q; prtudim'
' liusiitet coliibelur incursus. Cum ergo diu
' snlvisset terra, sub ejusdeni mi-, imperiu, no-
■ luit hoc ui nnliuatim s<)lrerelur, quod fuerat
' urgente necenntate hFllii^ie teniucstntis (.zncT
' lum, nectainen omiiiiio pniptc'rinnpinatos ca-
' sus dimitti. — Rnto igiiur tciiipoiibus ejuh vel
' succe,si>ruin ipsins Milutum est, hoc t-^t cam
' ab exteris gentibus bella vel npiniunes bello-
' rum insurgebnnt. — Verum quncunq ; tempore
' snlrniur ab ipso, liberi sunt qui a^sident ad
' Sciccnrium, ut dicitur. et ricernmiies, &'c.
Leges n. 1, c, 10. ' Daiiegfldum, i. e. laJ.
' ex unaquaq; bida per annum, si ad terminuia
' Don reddatur, wiia emendetiir.'
Fourihly.I affirm, with some cleame's, under
favour, That tlie charge now demanded is not
within tlie mcient acceptation or signiBciition
of the words. Aid-, Mises, Prizes, Taxes, or
Taltingei, which it i« to he nuxeed cannot be ex-
acted by ilie king, wiiboiit consent in |>arlia-.
mrnt. Neither ii it witliin the compass of the
word Subsidy, which may not be levied, but
upon grant of it in parliament Aids, if you
take the word in a general sense, they were of
Ino kinds: 1, Such as were aids and services
too, OS ' pur feire fit/ cbei'alier, pur file marier,'
l*hat kind of aid, common peisons, who had
seigniories, laid right unto, as well as the king.
No colour of comprehending fliis kind of aids,
within [he word. Aids, perliiienC to this ques-
tion—To the ad kind of aids, were sums of
money from the sulijrct to the king, by ituy nf
help, ' ad ngendn regis;' ■* for making of cas-
tles, buildinti nf bridges, helps for vnluninry ur
auiiliarv wars, or for the king lo do his plea-
sure with, and ihr like.— See Pari. Roll II
Hen. 4, 11. 45, 30,000 marks granted lo the
king by tlie name of uu Aid, ' eni a fair son
' pleasiire.' And Rot. Pari. 85 Ed. 3, n. 19,
where the application of the word Aid to such
a purpose, is distinguished fiom other fnymetit
to the king. — Mises were preseiitHtions in kind
of a benevulence, upon a king's first oming to
his crown ; >uch are yielded at this day in
Waicf, to a prince of Wales —Prises are taking
nfparl of the subjects goods from them to the
king's use, without pay ; hence prisage of wines
at this day.
' Taxes et Tallages, in Quiniim. B. 9, 34 II.
' 8, Nota par exposition de ecu M Etchecq; '
loss] STATE TeUlS, 13 Ch. I. \in.—TllcKaiiei~'MjiHiaT^,mg.^ [ION
llicqi particnliu-ljr, the tbip commmBdcd fram
tli« couniv o{ Buckinglnm ituty be pivrided.
and lastl;, Haviog drclarvd af
' que rai et tallage n'tit antar, mes 4**<'>^i
' i|ulliziin, ou nulcr aulisidic, grunt' per parija-
' luent. F.( le (juinim est des lnye«, el le ditme
' est de clcriiie rt est d'l'stre levy de leur lerr* M
. ' le dlsme el lu quinziiu iJe lni» ea. di'l Mens, ic.
' decimaiii pnricm bunoium in civitiiiibus eC
' burgle, t-t 15 partem boiioium drs Uics in
' |iri»in que liiit levy in nuciin) temps sur l"ur
' liifns, viz. del Bit); siir l<iur term que fuii
* VBid croubluu% mes on ecu levy, secunduin
' ratuiu I«rrHruin Buaruin per \-er)(C* de lerr' et
' auter (|uaiiiiti.s, it-suii ijue ore, tqut science
' lour ctrtenly in diun vill ct pais pnr tout le
' renlmc mts d e»tencure levy iu sicuiit lieux
* He Ion birns, mn inplu^iors licux, sur Ion
' ten. — SulMidii-s quid cbun ciiiiust, k. cer-
' taine noiue lur le [iiiuiiit del r.it' de terr' ou
' bien*, ciniic iipp' inlet Acts de I'arliaiiieDtde
' grant del sitbitalc'
FiriMv, It cnnnot be said, l!i<>t tlie present
can is to be ttaied so, ns unti'-s tlie chai^
coiDinanded be uiioved, an ntsurcd iiilidlible
Tuinandaulvfitiiimol'tliiskiURdoinwiil tisppen,
and that insuiidv. In such a case,' quid doii'
is lamful ; and hiippy he nho by doing nny ex-
ploit, can SQve the ij)ip froui sinking, tiic body
I>»m falliiip.
Kulhly, Ic is to be nb^rrved, lliaC ihe prin-
ripnl coinniund in the ihij'pin^-u-rit, is not to
I.evy money, it ii i<i provide a ship ; wbicb ship
being CO be provided at ihe charge of amulii
tude, in regiml tlie tiling canni>t be ihiue nn^
inaiiner of »aj, but by the menns of lliat which
IS ' mensiirn rerjim,' nanielv. money, tlierefore
ilie iuttnicciun^ in the shippiiiR-wrii
only apf, but iieccsiary : tlnit nii asse)
loade, whereby pnipiKiioiinble s'imsiit' muney
may be collectrd, fur the proii-ian of ihe thing
cumnjaoded : And iliereupun it may be said,
Uiat the sum nsieiscd upnu every one, and in
our ca^e upon Air. Hampden, is not a debt vi
temuai, but is miher b duty to be performed,
as a means conducin<; to the principal end :
The refusal of perf vmnnce of iviiich duty, is a
refusal to obey iha priiicipal thing coniinanded,
* Qui ncaal medium, de.-t.git finem.' And t)io
Jirincipal thing cuniioaiideil, being of a kind
concerning the commonKcahh ; the kin^, who
is the head, thesoi-ercit<n of the commonwealth,
nnd wlm halli us iuciilent to his rrgnl office,
pvner of coercion, is by law to cierciie luch
his pow^r of enercion, to iiiforce such as refine
10 join with others in perfiirmanco of that which
M comiDaude<i for the comin:)nwenirh.— And
this bcinjt llio true sbtte anil way of the pro-
ceeiiinp, in the present case ; it is apparent,
that though the Scir' Fac' agHinit Mr. tlnmp-
(len be in the king's Dnme, jet it is not to have
^Kecutioii as for tlic Ww^'s money, or as for ■
fleht due to the kiiu; from Mr. Ilnmpden : But
■s ih tniiiifcM, if the whole contexture of the
writ of Scir' f ao' be observed, it is nothing else,
but to brin'4 on a declaratory payment. That
Wr. Hampden oti^ht oarrori'to the payment of
the 30t. assessed upon him. So that, vcitb his
#0*., together with (he olber mooey of Buckinc;-
fts^lijre-nien, aise»cd alw upon e»erjf of
« hat nature iv
you what the state of it is. Tbe trne uaie of
our question nusi be made out ot the wbolc
record, or pleading of the cuse, tlie matter of
Ihct wherein ihe defendant hath confessed, (a*
I noted in tlw beginning.) In the Writ of
Aug. II Car. and in tbe Wht of Miitimiis,
iheiearecausei expressed, of tbe iswing of ifa*
Writ of Aug. II, or t)ie Stiippiog-VVTit; iboac
causes are several, hut nut to be severed, all of
them are to be laid together into tbe b>hnic«.
1. ' PiratK cougre^Qii,' upon the Ea^lisii
seas.— 9. ' Pirate navigium indies prepMuuo,
■ ad mercaiores ulterius mnlestaodos, rl ad reg-
' iium gravMidum.' — S. ' Fericnla' are • Uii-
' dique regno Ai^L%, in his guennus letupari-
' bus.' — Those ' periculs' di> ' iioraioere regno,
■ ni>i ciiius remediuD poaatur ;' where ib«
word * citius' is a companuive word, relative to
slow ways of remedy, amongst wtiich pariia-
inents is one. — 5. * Kegi et subditia eoaveuit,
' omni nun poterint festinaboae aooelcrarc, ad
' regni clefeiisionem, maris luitkmem, n secuii-
' tstcm Bubditorum.'
Uut 1^ all those posiiions it appcan. That
there is in the case real bimI maoileat peril ; not
' panicus temir,' fear without tause; 'TcuporV
are ' de lacto gucrnna,' there is ' d* tacta
Again, we inusi obterve, That in lliia case,
1. Tlie command is, * ad proSciscendmn cma
' iiavibus r^is:' So tha king himself ii tojoia
with tbe subject in tbe commou defence : Here
is not a < qu'id (ibi fieri non vis:* Here is
rather a tonlrihnlio, than a tributio. — 2. The
4hips and arms to be provided are to continue
the Bobjecli own in property : The king doth
not asiume tbe proper^ of iheni to himself;
!« only commands ibem to be made and nsed
fur tbe conimoD defence. This appears by th«
words (' ad proficisceodnia cum navihus nos-
' tris.*) So the writ sets a distinction between
■ naves ooslne,' (ttit is, the king's) and tha
sliips to be provided. See the like of tliis, m.
38 & 29 Ed. 1, Cnrununia, with U>e hine's
fiemembrancer, fur gnllies commanded upon
Ihe like occasion ; and F. S, E. 8, and P. 13,
E. 8, with tbe King's Keinerabrancer, ' inter
' brcvia directa baninibus.' — 3. The subject*
are commanded, in this case, to be at (be ei-
pences, ' tarn in viciualibus, qoam boniinam
' salariis ad guerram uecessarii!,.' This I shall
prove clearly anon, to be consoaant to law,
atid warrunied by ia.-iny precedents, in ihe like
cases. — 4. All tliecounciesofthekingdov, that
is, all the kingdom in general, is charged, not
any spared ; the dcigy, the king htm>el( are
to join in tbe pravisiaiis. — 5. The final ead and .
bcope of ajl this preparation is ' DeJeosio regni,
tuitin maris, retrntio dominii maris, secniital
lubditonim, sains reipublica>.'
But Mr. Holboma hath nbJK;tsl,That * saloi
reipubliear periclitabntur' is not ta be taken
as part of litis case, became it is not in t)w vnF
1007] CTATE TKIALS, 13 Charlss L iGiT .—ialht One qf Ship-Monty. [)Q!)e>
of Aug. It Car. but a inieried ioto theMiui-
■DIH, alMne two yean aAer ; anil he laith.
That Mr. HupdeD could not kauwll Car.
tlkit at tliat lime ' lalus reipublicie peridimba-
' tur;' utd ttieicrure be n not to be bltioed
£»r n(uaia% to pajr bu uteHmeot, wlucb
IM) before ibe Hittimug, uad gmunilcd oul;
Ufoa the writ of Atig. 1 1 Car.
He furtbei observed, Tliat in the lubfequeot
•liippiae-writ, that dtuue it eipresslj qow put
ouL To this I answer. 1. It is true, that
* Mtlaa t^ni' is not io eipreu tenns, or in those
ideDticalnordsintlkewritofAug.il, butitis
expretsed in ibat writ in wunfs etjuipidleiit.
S. If it were nut contHJued in thBtwciciiiwoids
equipollent, yet, it enlbrce* the wordi in that
writ iQ matter punuHQC, or not new, or differeat
from it ; and «o is out of ihe rules of departure,
wberrin if it were, it «ere n gond exception
ill strictneu of pleading. 3. That clauM in
llie Uiuiinus by wny of declaralioD or ugnifica~
tion to the buroiii, what the reisun was, ihat
moved the kiiig to iasoe the first writ; and the
baioas are to uke notice of 1', as well as of
the clause io the MiiQinus, whereby ibe king
•ignifietb to them, ihat lie had seut the like
writs KB cliai of Aug. 11 eu tdl the couiities of
England : And tliis u a declaration of tliat
meaning which the kiug bad in the beginning.
By DowBiBo's Ceae, Co. 9. aficr ossesunenl
■ fine levied, u dcclnrallon may be
; tliat li'
ford, ths Ktnie of our Case is thus ;
' Dotnlnium maris, et solus reipublicoi pericli-
* tnbatur, oonvenit r«fci et tubditis, ooini qua
' poterint festiuMiaiie accelerare ad dcfeu-
■ siouein r^ni, tultionem mnris, et securitatem.'
Nnw wbetlier to set iJie coiumonwealth free
BDd io safety Irom this peril uf Niin and drstruc-
tion, the kiii)( may not, of his own royal au-
thoiity, Diul without common assent in parliti-
meat, impose a chnrue upon bis subjects in
general, to provide such shippini;, as is neces-
ury, ID Ills ruyal ju(lf;inen), ti> join witli his
ni^esty's own ships, and to ■ttcnd them for
■och time as till iiiijeMy in his royal wisdom
■ball think fit, nnd also to enjoin them to be
th«iuelves at the eipenccs, ' torn in victuali'
* bos (|uani homioum salariis, et alib ad geer-
I would be loth to irritate any, dillerm^ in
opinion from fDe, with provokiuK or odious
tcrtDSi but I cannot more fully express myself,
(and so I desire it may be token ns an expres-
sion, and not as a coAipArisoo) than in saying.
That it is a daogerous tenet, a kind of judaiz-
isg opinion, tu liolil, That the weal public
must be exposed to peril of utier ruin and sub-
version, rather than such a charge as this, which
may secure the conunonwealth, may be im-
posed hy the kin| upon the subject, without
conunaii consent io parlianienL So that the
■ccurily of the comiiioDweaUh, Ibr the reiy
•ubaistcnce of it, must stay and expect until u
pariiament proTiile lor it; in which interim of
time, it is ponlble, nay, apparently pn>bable,
Vfa, in a puwiar to be pm«B*d, tbu all ina^
be, yea, will be brought to n Gnal period «f
destruction and deeolation.
All knon, that iha Jens nere so strict, that
they would not use mciuis fur defeuce of them*
■elves, and their country, upon their Sabbaib.
Their enemies took the advautnge, and ruined
their sUle.
The Secovd Gaoval Head.— I now come ta
my Second general head, wherein I proposed
to consider of the fundamtntal policy, and
maxims, ttnd rules of law, for tbe uoveminenC
of this realm, and of tlie reasons of law perti-
nont to oar case, which are tery many. I will
hiieBy and severally point at those which make
impression in me. — 1. It it plain, that a*
on|[iually, even before tbe Rotuans time, tbe
fraOta of this kingdom was a monarchical state,
so furdivem hundreds uf yean poet, upon the
Romans desertion of it, aiul after tbe heptarchy
ended, it was, and continued, and stilt con-
tinueth monarchicBl. And our gracious sove-
reign is a monarch, and the rights of free
ituii>«rcby appertain unto him; and yet stilt
wiih tills, tliat he must ' leges ad cuusuetudlnes
' rfgni tervure, et piscipuc l^es et consnetu-
' dines et hbertatcs a gloriusu rege Edwardo,*
(ihat i), Edwaid the Confessor) ■ cleto popula-
' que concestas ;' as appears in (be old tiagn.
Cbait. fol. 104, lit. * juratnentuw regis quaodo
' coronatur.' _ 8. Where Mr. ilnlborne sap-
posed a fundamental policy in tbe creation of
the frame of this kingdom, that in case the
monarch of £ngland stiuuld be inchned to ex-
act from his sulijecls at his pleasure, he sliould
be. restrained, for that he cuuld huve nothiny
from them, but upon a cuiiimou content is
parliament.
He is utterly mistaken herein, — I agree the
parliauieiit to be a most ancient and supreme
court, where tbe king and peers, as judges, are
io person, and tbe whole body of tlie commoD*
representatively. Tlijcre peers and cMnmona
may, in a fitting way, ' perler lour meat,' aad
she* tbe estate of every part of the kingdom ;
and amonjist other things, make known their
grie*aDces (if there be aiiy) to their toftrapt,
and humbly petition him lor redress.
But the Ibimer fancied policy I utterly deny.
Tht law keoKS no sudi kiog-yoking policy.
Thelew isof it^lf an old and trusty servant of
tbe Line's ; it is bis instrumeni or meaiTs wlJch
lie usetb to govern his people by. — ] never read
nor heard, that Lei was Bex; but it is coin-
tnon and most true, tiint Rex is Lex, for he i(
' lex toquens,' a living, a speaking, an acting
law 1 nnd because the kiog is ' lex Inqucns,'
therefore it is said, that ' rex ceiuetiir Jiabere
> omnia jura in scrinio pectoris aui.'
l'faer<< are two maxims of the law of Eac-
laod, which plainly disprove Mr. Holbomca
supposed policy. The first is, ' Tint the king
' is a person criiEred with the state of tbe com-
' isKmivealth.' The second of these nuuims is,
' That the kin^ cannot dowroag.' Upon these
two maxims, tlie ■ jniasummemajesiatia' ar«
gmunded, with uhicfa none but ihe kin^ iam-
*df (not bit hi|h court of p
t wilhoBI
J099] STAHiTHIALS, laCa.l. I0.il. —The Kuiagaiial Join H<i«pdai,aq. [I1(W
leave) hath to oirddle, as, namely, war atid
peace, value of coin, porlitment at pleasarc,
poiTorlu dispcu&e with penal liwg, aad divert
allien; ainongat which I rang« these oltio, of
.eor
jniued to the king'* own incniis fur the defe
of the comaionwealih, for the preservnCion of
the 'satuireip.' Otherwiie I do not uoder-
sttmd how the kiDg'i mnjesty may l>e inid to
liave the mujeitical right, and power of a free
[t i] agreed, thutlhebing is, by his recal of'
See, bound til defend his people Hgainst foreign
enemies ; our books are sii, ¥. No. ful. 118, ' Est
< ■ inteudre que !« toy dnit ite droit ; Mrer et
' defendre son regime cuni' vers le meere,
' com' vers eoemit*.' — Juramentum lUgis, cit-
ed before, ' servnbis ecclesioe Dei, clero, rt pn-
• pulo, paceai ex iiiiepij iL-cundum virestunj ;'
if ' ex integro,' tin :i apiiust all disiurben of
Ilie general peace nmongst tlietii, imist cliitflT,
in iiiy judgment, »g liust dniipcroiis foreigners.
Bnicton and Olnnvill, in the front of their
bonks, publisked. That Uie kini; must have
'«rins as well as Uws ; anns and strrnsth
niftinst foreign ene mil's, lawn for doint;Juaiice
at home. CertAiiity if he miial have thi'«e tivo
necetsarics, he must be enablfd with means fur
them, and th:iC of himself, not dependent ' ex
' aliorum arbitrio i' for itis ' r^uJa juris, lex
* est, ifDando quis aliquid alicni concedit, con-
' cedit, ec id liiie quo res ipsa esse non potest.'
3. Though I liavc|!one ilieady very high, Ishall
go yet to D highi r contemplation of the fiinda-
mental policy of our lans ; whicli i* this. That
tlic kin)! of mere rii;ht ought to have, and the
people of mrre duty nre boaiid to yield imio
tlie king, supply fur the defence of the kine-
<iom. — And nlien the parliament itself doth
frant supply in that cnse, it is not merely a be-
nevolence uf the people, but therein iney dn
an act of justice and duty to ihe king. — I know
the matt solemn furm of piirliameni,-and of the
humble expre^ion of the commons, of their
hearty- affec I ion, und good will to ilieir kine, in
tendering to hiin their bills of «ub}idlcs or &{-
Hot. Pari. 9 Hen. 4, n. 7. There is a noia-
' ble record of the lery right uf the commons, in
the f'irfh of itrant by puHinment of supply to
the kinc: Arclihlshop Aruudel, then Lord
Chancellor, in Wh ipi-ech to the house*, took
6>r Ills the:n[: ' Regent honorilicate,' it being
le of ii
-The c
mons, in their grievuitCL's, complained of (be
default of safeguard of the sea, towards which
they hud grnnted a tubsidy before ; * Et pour
' lunt,' (Note this for ihe rensnii, it iiai not
ipoken limply, as Mr. St. John urges) but ' pur
* tant que ills iie sunt obliges a eel guerre sus-
' teyner, mcs sout dischar)>' de re exant ;' and
tliey petirioned. That aircarilingly it would
please the king to Hiachargc tlie commong, but
the kinK did not discharge thetn, quod nota.
After this, the Itf curd goeth, that there nas a
asnfercnce bttween the king aud lords, of the
state of the realm, and of tbe defence of it.
And ill thnt cunference, the king atkiug tbe
loida advice, tliey answered, '1 bat a lenih and
hall B tenth was necessary trooi the baraagb*,
and a filteenth and hidf from tbe rest of tbe
people. This conference and advice beiiig ra-
pOTted to the Imuse of c»mmoa&, the record is,
' lis fuer grandemcnt disiorbe en ilist' oeo des-
' tre en grdnd derogation de lour libertiei.'
1'he disturbance was so ftrent, tbot tbe kii^
himself took pains to paci^ them. Upoa Ibi*
Record it appears, and I contew, that the com-
mons oSeriag up of the bin uf lifieenths, and as
of sabtiilies, to the kingiupariiament, is a moK
niateriul form, and serves to make good and
happy expressions of love and unity betweea
the Itead and memhers, the king and hi* sub-
jecti. But still I Miy, that it is the kii^s rf lit
to have supply ; that supply is a duiy, not
merely a benetolenca from tlie peiiple, in case
of necessnry defence of the kingdom. — And thii
is not my siitgis opinion.
19 H. 6, ai a Hody Ch. Bnron, 'Le roye e«
' inherite,' that it, hath riglit of luberitaiice lo
have fifteenthk iu his court of pxrliument : for
the same law Hhich will* thai tlie king defend
bis people, wills alio, that tbe people gnat to
< him of their goods, in aid of their defence. — Be-
sides, I prove mine opiniiMt, if nnv man deny it,
unanswerably, out of the very writ ofsunmioos
of parliament : in it, ' Anluaei uigentia ocgo-
' tin, regem siatum, et delensionem ivgni Aa-
* glix et ccclrsiai roncerneDtia,' are meniioned
to be the cause of pariismcDt.
Now 1 pray jon obterve. — In tbe writ of
summons to the peers of the kingdom, the
words are, ' Super dictis n^otiis iractMun ve-
' lumq; concil' impensilri ;' but in tbe writ fur
choice of knights and burgreiises tu ^erve for Uie
commons, the words are, ' Ita quod indites pro
' se et commnnitate cnmitaius pr«i<icli, ac died
' cives et buigetises pro i* et cumttuiniiate ci-
' vitatum et burgorum plenim potestatem ha-
■ beam ' (xhat to do ') 'ad facieDduHi et coo-
' lentiEnilum bisquie tunc ibidem tie coniuiuni
' conciho regni iio&lri contigerini ordinari super
' negotiis entediciis.' — Su the wonli are, * la-
' cere et coiisentirv,' to matiers agreed on eon-
cerning tbe defence of the kingdom ; lliere are
no otlier matters mentioned in the writ for
summonlof their representative hody : nosucta
words as are in the peem wriis are in iheira ;
yet I cannut say, and to I desire to Le conceiv-
(;i), but that Bcuirding to the Keoord oi 9 Heo.
4, the commiins may alio humbly offer ibeir
advice id the king ; ihiy may shew Ifaeir giiev-
anci's, and the Mate of the commoas : bat it is
plain, that the principal duty belonging to the
cinimons is, ' facere et consantire,' otbtrwiH
there would have been in their writ, as well as
in the peers, ' super dictis negotiis tmctaiuri,
' vemmque consilium impeiuui-i.' — Upon thiil
put the case, and argue thus : the kingdom
wants present provnuon, necessary for present
defence, to be m readiness ; Ihi* provisioD, tbe
case so Gdling out; roust be so speedily luHlr,
as tliat itwoi^dbedaDgen)ut,ntKpu<)af wlwt
, CiOoqIc
UOl] STATETRIALS, 13Cii*iilesI
Dimy liapuen, to stny for an amtnt in porliB'
Diriit. VVell, in tljis crw there is a dulj hnai
ihe Bubjtct, and a iie«i$ity llml tbe thiDt(iniist
be done, but the iieceiMtj furm for tbe lub-
Jecls astent in parliament cannot be punuctl ;
I denmnd t*bat must be d'>nr, or ivbnt nay be
(looe ill this case, wilhoat breach oC liw 1- Jb
the duty lost &r want of time to oliserve the
fonn ? For aiy part, I uodenttnd not nay rein
■on that liie duty, in sucli case, ibonld be' IM. ;
but I iJiould BKree, that irere not this a duly,
M lermtti, which is to come (torn tba subject,
io sucl) a case, but only a mete benevolence,
then that such beneioleiice could not by Jaw
be exacted without the essential put of it, Tiz.
tlie Mibjects agseiit io parliament.
4. I confetu, that by the fundamental law of
England, the padiament is ' commune conci-
• liuiD regis et regni,' that it is the greatest,
the aioit honouiable and supreme court iu the
kingdom ; that no man ought to think any dia-
boiKturable thing of it: yet ^ive ma leave to
•ay, that it is but a Conriliiuu ; to say so is no
disbonoQr to it : the king may call i(, prorogue
it, disaolTe it, at his ptessnre j and whatsoerpr
tba king dodi therein, is always to be taken
for just and oecesHry. — We must consider,
that it is a gnat body, move* slowly ; sud-
den dispatches cannot be expected in it. —
Besides, tliough the pai liameot cannot err, par-
liament-men may tie Jar'o : etety particular
member of the lioute hath liis free voice ;
■ame »f them may cbaoce to make scruples,
where there is no cause; it is powible that
lome of them may have siuiiter ends; these
thiligi breed delay*, so tliey may disturbances.
(I would to God, the tate woful experience of
this kingdom had not veriGed lliese specula-
tions.) Yea, there have been, in former limes,
txnsuKS of parliaments themseUei: the good
parliament, temp. Ed. 3, ' parliamentum in-
* doctotum,' temp. Hen. 4, -and in the same
k'inii's lime, if we believe nny lord Cuke, It,
(o. 113. Brsngwi[,tJeif, Ihe White-Crow act.
These Diatien are considerable in such cues as
ours it. — Wherein apparently ' Mora trahit
' periculum,' «qlI to follun tti* rule, ■ Feitioa
' lente,' is most dDneerous.
5. Tlie point of ' rctenlio domiiiii maris'
(whioh is ill the case) is not of an otdinory cou-
(ideration ; for, besides the anlieni inheniance
and right which the crown of Koglaod bath in
ii, it it obvious to every jud)(niGat, that iti the
continuance or not continuance of it to the
crown, tint only the bene rue, but even the ti*t
itself of the commonwealib dutli coniisi; and
therefore it behoveih tiie subjects acceUrare
to ilie tuition of it : sloKoeis is an HTiiumenE of
stupidity, or want of that sensibleness of the
dimiiiiitiou of that rieht which eicry subject
outht of right, and bath a conceruiiig reason,
topcopDBe to iiimselF.
Notable arc tlie words in tbe Scotch rolls,
16 Ed. 3, numb. 3, Id a writ Iiy tlie kioE to a
({teat pan of all the kiitgdom; > Considerato,
' quod progenitorei ncsiri regesAngUx dominii
' maritat traasmarioi paisaf ii, loti* pratetiti*
■ femporibus eittteront, etpliirimam nortsde-
' ret, ai honor nojter riuius nnstiii temporibus
■'in alii]uo Weretur. <juod<)ue omntshumine*
' da r^no pro defensione ejatdein, coiilra hoi-
' lium invntioneSftenentur eiponere se et lun.'
— 'lite writ wherein these woids arc, whs n
command or tharge laid upon the subject,
HJihout any warrant of paitiunient for it. — It
wosa writ directed to all carls, baroos, knights,
and oihen, ' nb ore aquas Thametis leisus
' partes occidentalas,^ which included divera
inhmd counties. — It iaiued upon occasion of
Datid do Bruse's having a great navy afloat,
and therewith having entered Jersey and
Guernsey. Tbe writ is a comnisnd to those to
whom it is directed, ' Taniis et lam gravibas
' perieulis imminentibus debite ponderaCis,' to
treat wiib tile archbuhoaof Cnnt<rbuiy, and
other great men assigned by the king, ' super
' defensione regni et populi.' The wHt con-
cludes thus, ' Scire voa volumus, quod si rc-
' belles aut diSciles fiieritii in prEmisiis in
' tanto et tarn grandi necessitatis articulo,' the
king will repute those * rebelles, aut difficiles,'
* tanquam suos et r^ni iniinicos.'
6. Not to speak of necessiiy. in ^eaeral,
which is ofitiellureloi^tiunoflans, andservea
fcr a dispensntion, even by the equity of ttu
law itself: in our case there n a necessity in
point of goverometit. — I shall put you a case,
where an express clause in an act of paihamcnt
bath been doomed roid, because it was against
a matter of necessity in point of govcmmcnt.
3 U. fi, 6, The earl of Northumberland's case.
JVota, 98 Ed. 5, and 49 Ed. 3. jienel acts were
made, that none should exeicise the office of .
Bberiff above a year, although that he have a
nomAitanU; tluil clause of allliaugh'is void,
and a luiu oittanlunay be of that mm ohitantt:
no reason can ha for this, but because it takes
niiecessvy part of government out of the king's'
7. ' Salus reipuhlicK,' by all laws, is ' su-
■ prema lei, et lumuit necessoria.' It is, where
it interpuseth, ' lex li'gis.' It takes away par-
ticular mlcrests, before itself give place for that
8 Ed. 4, 96 lien. 8. Dyer; A bulwark Cot
defence may be built upon another aian's
grouud, ' iniito domiuo.' — No dower or third-
ing to a woman of a casile of defence ; it may
indanger * snlus refiublira;,* by dividing such a
piece. — An alien merchant takes a lease for
venrs, of a house fur his trade : this is a gotrd
lease, so long as he Iradelh, and there is nu
enmity between his king and outs; but wheu
be ceaseth traciing, or it war happen, tbe king
shall have tbe interest of tlie lease. The rea-
son, it is possible, that ■ salus reipublicK' may
be concerned, if the alieu's interest in it shuald
continue.
8. If then were not ' salos rripublic^ ir
(lui case, yet there it in it nt Itaic ' bnnum pub*
' licum' intended. X will put a case, wliera
subjects are bound nithout their afeent, for the
' booum publicum' sake. 44 Ed. 3, 19- Cham-
berlaia of Loitdeu'i case, Cok« i, £. CS. InW
U63] STAT&TmMS. tSCn.Lll>37.—neKagogaiM3tJ,A»Bam^Ax,ttq. [UM
bJUnts of a town, wilbont anj cuatotn, aiaj
Willie ordiDincn or hy-Una of anj thinjc, prv
tenopuUieo; fuii) in such ane, tliose ohu bit
mbMii', Uid ao uncoiiuntini;, are bound, (he
* boDUiB publicum' ia ib« cnuie.
9. E'reveiitioil of furtlitr genernl niischier,
frhieh iimj Clique, (rencheih, evitn bj cunsirtic-
tion of Imw itMir, upun other miin't rigliU.
For tliBt cuue, (lutliii;; riowii a bouK which
ii on fir», to 9:ive iiclier nit^n'i housn, it
lawful. Mighlej's c»^c, Co. 10, 139. One is
bound bj preicriplion, to make or repair walls,
damnu, or Mch like ngaicK wolers : this mnn
is Dot able 10 do it ; a small breach h^ipeDS,
nbich eicbci inueC speedily be made up, or a
geaeral'miscbief will liappeii. lathis case by
expoiition of the statute ol wen, and by an
equity out of (lie letter of the laws, erounried
upon ' salus pop.' nil those tthu are nithia the
level are to be taxed, and to contribute for pre-
text ; ibe ability iif him, whose the right of the
burden is, nor ezpttlata.
10. I find a writ in the register 'de repa-
' rationc fnciendB,' which ii cited in Bowles's
Caw, Cole 11, f. 88, b. whereby, if t«o joint-
tenants be of a house, the one shall have a
writ of ' de rrparatione faciendii* against tlie
other; and the wordsof Ibe writ are, ' ad k-
* pnrationeui et sustcntitioi>eni rjuKJem duinns
' tenctur ;' witere the word * tenetur' i*i observ-
•Ue. E^erj man hnth an interest in the eom-
moDweallh, hnt the king's interest is incom~
Cably beyond other men's ; therefore tbe
g may, by a like reason of hw, call upon
his iulijects to join in contribuiioa with him,
toward) the reparation and sustentatkin of the
labrick of tbe cooiidoii wealth.
11. In tbe treat and ci>mmon vouchee's case,
13 H. 4, 14, m the debute of this cause of the
Dew-erected office of the measuring sf ctoths
ia London, which was brousht to pariiameiit ;
it is a memorable saying df^ascoigne thechi^
jniica, ' The kini; m.iy charge the people of
* his renhn without special Bwent of the com-
* monj, to H thing which moy be profit to the
' common people.' This saying is cited and
allowed in the Cnse of Monopolies, Coke 11,
f. 86, h. and so it is very commonly, upon ar-
gunents concerning such questiotis.
19. I obserre, that though the precedents of
writ> and execution of them, for assessing tbe
fubject by the King's command, without war-
rant of parliament, ara very ninny in scveml
bing» reigns ; yet there i« not any precedent of
my civil action brought for any thine done in
fiifmer af;e% opon gnch comniniids of the kin>;
abbot of Roberts brides enie, which hath been
often cited ; and in tlie pleading thereof It is
adinowledged, that the BeistiD^of men's lands
and tenements to contribute ' ad casiodiam
f maris' by the king's cuinmanrls, without tnx
by cnnaent in pBrliBmem, was good in law.^
And T tMte', that that case happened and was
i» ngiiation, and gave fnir cnuse of demurrer,
in nn oppormiie time iodnnorrin», iftbelnw
hadbawothtrwiie; Cir it happeotd et that
very time, when tbe ststat* De Taib^ bm
Concedendo aaamada, or in bamnfnng. If
only one action brougbc heictatbre, ana ki-
rimdo, it were not to bo regnnled, tbna^ it
had bteti igainu the kinc's powar; but when
that ODc IS assertive of Uh regal power, it if
to he retpecled mote ti)an as a, liogle, I aieaD,
as a iingalarii protaiH) of it.
Lastly, 1 obberve, that upon grieraBces, or
complaints ia parliament, which have ben
airuott infinite, and upon all occaiioiuin fbrraer
times, ai one record hnth been, or I ihiok
caa be cited, that in case when charfes bsv*
been imposed wiihout comoMNi assent, for the
occeisKry defence of the kingdoDB in an inuant
article of necessity, any king hatb aver ■■•
swered, or assented, that such charge hath baen
against tbe laws or liberties of tbe snUecL —
Neither tlie reclanatinn of tbe subject •kmcoa
his aide, nor tbe sii^le commanding resoripca of
tbe sovereiitn alone on his Mde, are of awbo-
rity 10 presrn e the law ; hut if there be a coo-
currence t>f king and subject, tbat ii it wfactcb^
a judge may ground his rcstdution.
As for that otte oft R. 9, whicb cameth Dear-
est in that kind, hut hath aol tbe kinic's ao-
knowledgment; 1 note, that it was upon a del»>
beratioB, before the charge impoicd t and inly
I tliink that if the charee in that cam had beea
first imposed and ccdlected, upon complaint
againat it afterwards, it would never btve been
djudged
fore tlicy are done, which /ado valeiU, i
being done, arc good and valid in law. it ■
question be made of that which nf itielf ia Uw-
lut, tbe very making the ijiictfion make* it (|ne*-
tionable, and may draw on an opinion that it ■
not lawful.
Rot. Pact. 4 II. 4, »■«. 38, et Rot. Pari. ff„
H. 4, nom. 9, yon shall 6nd, that the ctMrnans
having (MMHidered of tbe wara of Scotland, the
rebellion of Wales, tbe aa^uard of the aea, tt
npecialtMHt the defence of the realm, tbcy
granted a subsidy, but with protestation that it
sboiild not be an example to charge the cowt-
mons hereafter with any mannar of sabiidie*
for tbe wars of Scotland or Walet, or tlie safe-
guard of the tea, or the marines of Calais or Ire-
land, without consrai in par^ment. I obaerv^
that there is not a word in this proteMatioa,
Ihnt the subjects sbotild not be charged withoai
consent in parliament far the defenca of tbe
realm, though there ik«re a little before lui et-
press meiMioo of it, and that vrith an neciol-
nent. On the other side, there is a cload of
precedents of imbai^ine of private mens
ships, in cnsB of nscessty of defence of the
realm, and safegaard of the Maa, coiamMad of
makinggtJIeysandbHtliDgersiK mplibat pnpriii.
Arraying and apparelling of soldin^ and vic-
tualling and conducting them in this case of ne-
cessary defence, ' pmpriis somptibos,' of seve-
rat toivna and countiea, as well inland aemarv
time; theeipreMwortlsof theking'sooaamaaA
in such cases, by his writ4 diractad to the re-
spectiv* dierifiW bmI bead oScet*, mn, IW
1105] STATETRIALS, 13 Chahles I. ](ia7.—ini>u Caxt^Skip-Money. [1106
tbey shnuld ' lerari Ihcere eipcntas de c(
' tibua,' somctitacE - '
* V ills rum,' as tbe caw was :
the sheriSs leties aie, viz. ai^ejsineiic hy liim-
self, and callection b; hiniielf and miaistfrs,
} think few are ignorant. — Amongst which
kinds of writs, some uf 48 Henry 3, are re-
markable for these words in ilicni, ' Cum- !
' qu« adhac nece>sc sit pmpter c»sus fortui' |
* tns ad tecuriCatem et delenaiuoeiu tegni, de- 1
< fensionem habere proinptnm, contra alieni-
< fjienaiiini adventuin,' &c. Jnicr alia sic Rut. |
Clans. 48 II. 3, m. t. A writ tii the town a[\
Bedford. So still the pressure is according to
the occasion, initant prorbioo raised whereby
a promptitude may be, not staytsg a provif ion
by parliament, nhich cnnctatlon inittht be oa-
■ poute to promptitude. Also the French Riill,
31 Ed. 3, pars 3, m. 9, Co. 11, shfws, that
whereai a subsidy out of ihe wnols had been
granted to endure fer a. certain time only, yet
the king, * necessitate cumpulsus, de cousilio
* prxlatarura, magnalurn, et ahorum de concilio
' sno,' (not ' per commune concilium ") did or-
dain ' quod subsidiuDi pnedictura leveiur usque '
a Airther citne.
Close Roll, 1 E. 3, it>. 18, many writs were
directed to the hailiS of the several
bury, imd Tbetford, reciting a former command
of the king to these several towns, to provide
several ballinearv, ' od custag vatidiorum et ma-
' gis divitum hominuoi ' of those towns. Now
bj' those writs tbe king declared lo them, that
•adebatvr to the king and his council, that Ihey
who had lOl. and upwards in goods, should con-
tribute, ftod not otbers ; ana commaads those
bailiSs to compel men of that ability to cnntri-
buto, ' per disirictionem si nccesie foret, et
' aliis viis et modis, i^uibus melius videriDt eipe-
I spare itemtinns; J conclude my second
seiwral bead with my subscription again proved
by my judgment, by what 1 bave said before ;
That when the good and safety of the kingdom
in general is concerned, and ibe wluile kingdom
in danger, the king may, by writ under the great
jeal, command aU the subjects of ilie kingdom
at tbieir charges to provide aud furoish ships for
the defence and snieguard of the kingdom, and
nay by hiw compel ibe doing thereof. And
that in such case the king is the soie jud^e of
the danger, and wlien nnd liow the same i> to
be prevenied. And how many more have sub-
scribed to this tenet it is not unknown ; [he re
cords of the Keneral criuns of justice of llii
kingdom, manifnt to such ai will Inok into them
The Thied General Head.— ^ have done
with my second general liead, and coine now
to my third ; wliicb is, to consider the acts
of jwliament, answers to petitions in parlia-
ment, Mogna Cliarta lans, which concern the
king's proceedings in tbis case.
1. St. Edward's laws have Danegelt Diei>-
boned in them ; bee cap. IS, but not auotJicr
VOL. UI.
syllable pertinent to this case, saving that the -
church and people are free, have hbei ties and
customs belonging to iliem of right, wh.cb it not
by any denied.
3. I liod Uiat there was a Magna Charta li-
bertatuDLRegni made liy Henry 1, the Benu-
Cleike, in which is this clause, I'hat ' Militet
' possidetent terras dominicarum suaruni quie-
' tns ah omnibus geldis' (' guelt' tiignifietb a
stun of money.) And yet amongst the laws of
Im time, as appearctli by Ltges Hen. 1, c. Id,
this is one which I cited before, ' Uanetieldum,
' t. e. \2d. dc uiiaquaque Lidn per amiurn, si ad.
* terminum non reddntur wiia emtudetur'
(which signilietli an amerciament.)
3. The Mat<na Charta of king John, mnde at
Running-mead, hntb been cited by Mr, Hamp-
den's counsel, and ureed to he an act of parlia-
meut; the words inlerred out of it are, ' Nul-
lum sckita^ium vel auxiiium capiaiur in r^no
nostro, uisiad corpus nostrura rerlimendum,^t
primogenitum filium miliieni faciendum, ec
ad prmiogenitacD fillam nostrum setnel miri-
tandam ; et ad hoc non fiat nisi rationabila
Buiilium,' &c. — Tbe wor^s pitched upon arp
nullum tnnilium' a genenl negative; I have
touched before the signification of the words.
Aid, auxilinm ;' I will answer the wortjs far-
lier anon, together with other statutes, which
Bve as general and further n^atite words.--
Observe, But there is no questiou but Running-
mead Mag, Cb. was no statute, nor ever was
taken for one, saving in thosa parts wherein it
add Mag. Ch.of9 Hen. S, do concur: tu give
but one reason, tr U me when, after king John 'a
time, were 36 batons appointed, according 10
that which ii contained tn Running-mead Mag-
na Cbatta. If there were any great matter in
' oulliuu auxilium,' 'it, is observable that those
words are not in Magna Charta of E> H. 3, and
that is tbe Ma^a Cbtrta which hath the fre-
quent confirmatioiu. In Con&rmatio Cbaits-
nun 35 Ed. 1, there is mention of that Maeoa
Charta of Henry 3, by name, and none of tnat
king John's Magna Charta. Certainly there
were some ' iniqua' in the Magna Cbarta of
king John ; the Eiarons did in that kina^s time
' iniquum petere uE atquum ferrent,' oiberwisa
that Magna Charta would have been also con-
firmed, as well as bis succeiaor Henry 3. — And
I pray you note, that after the ■ nullum auxi-
' hum ' there follows on, * nisi ad corpus nos-
' truni redimeiidumi' If fur tliat, thencertainlj
much more forihe redeeming uf the whole bodj
of the commoimeulth, which is Our case.
4. TbeMaeiuLChoneofgU, 3, which is tbe
oflen-cun firmed Magna Charta, though it allow
all the liberties of tbe subjects then claimed,
hath DO special words pertinent to our queStiAn,
which is a matter ulitervable ; for chnieet for
tbe defence of the kingdom commanded oy tbe
king out of parliament, were frequent both a
ami before Inat time. In it there are only ge
nerul words of ' haheant hhertales suas / out
of which words ' suai' I do observe, Kirst, A
right of tbe subject in his liberties, they an
' ic' Secondly, Those lib^iici which tb«
4B
II07] STATE TIUALS; I3Ch.L ISil.— Vk King asaiM John Ila^pdai.eiq. [1105
tut^ecu mti^t ' habere,' must be ' luz,' that
ii, sucli libertiM u are fit for n autijcct, a^ are
compntible wIlIi the relalion between a king
and a suhjecL The words are nut omnei liber-
iattt, nil manner of liberties, but ' luiti,' chnt
R, libertiei proper for them, or sucb liberties
M ibeT are, in good construction, capible of.
And indeed ' Quicquid recipitur, ad mudum
' recipientii recipitur.'
14 H. 7, f. 11. The abbot ufSr. Bartbolo-
mew's had a charter rrora king tlenrj> 9, that
heshauldbeiis free in his Unib, as the king
was in his crown ; jet these genenil noids pnss
fbr no more thnn a subject is capable of; be
must iiotwithstiuidiiis those swelling wordi, pay
fines for alienntioD without licence, ndiiiit the
king's valeci to a corody, nnd such like. But
in that Magna Cbann of 9 liin. 3, cap. SO,
s this clause, ' Et si nos addm
•»el
i» the king's right, e*en bj tbai
to dispose of the bodies of his subjects for bis
army. Also cap. 30, tliere is a clause, that
' omnes mercatores' shall have safe conduct,
and liberty ' ad emendum rel vendeiidutn, sine
* omnibus malis totiietia, per antiquas et red as
' conjuetudinea, pralerquam tempori; belli ;*
which shews, that in ' tempore guerra; lunla
' tolneta' might be set up, tbej were not then
' malatolneta.' ' Dominus opus ha bet,' made
them ' tolerabi lis et tolerinda ;' in our case,
ne bare ' tenipora guerrina,'
a. Confirmalio Chartarum, which ival 35
Ed. 1, ig the neit statute nhereof there is any
cohiur for Mr. Hampttcn ; tbe wards thereof
■n.', ' Que pur nul besoigne cielx manen de
* nydes, loises, ne prises, iie prenderoiner fors-
' que de com' assent de tout le realme, saTcs les
' nnc^ ajdit et prises dues et accuslutnes.' But
Ah statute hath not been ttood upon, becnuM
oftlie ' saves les anc' aydes, &c.' Thatwhich
b saved or excepted is clearly oat of the body
efclie Uw.
6. But then comes the atatuts De Tallagio
non Concedendo ; which ofwhaC ume it was,
non roTulat. It iris betireea 9S andSi Ed.
1. I do agree that to be ■ statute or ao act of
parliament : The recital in the Petition ofRight,
3 Car. binds up my judgment toaSrm other-
wise. The words of that statute Hrecenerol,
witbntlt any savii'e or exception, ' Nullum tal-
' Ingium vel auiilium, per nos lel bsredes nD»-
* trus in regno nosiro ponatur sea levetur sine
' Toluntate et tusei^su ardiiepiscoporum, epis-
' coporom, comitum, barnnum, mililum, bur-
' gensium et aliorum libcrarum comnninia de
* regno uostro.' These words indeed are gene-
ral : but fur a Inie and just exposition of them,
tlieoccHsinn of the hard pressing to have that
general statute is to he considered. King Ed.
1, hnd right to dukedoms and rnrldoms in
I'mnce, and great wars he had with the French
king about tbem. Great troubles also he had
out nf Wales and Scuiland. He was in
Flanders nbnnt auxiliary wars figainst the
yrench king, hotli nt the making of Confirmatio
Cbartaruin, and ofTalla^io nun Coacedendo.
He had a little before, in the 93d of bis retgn,
caused scrutinies to be made throuchoDt tbe
kingdom, )o raise moneys forsupply olbi^ gtett
nnd pressing occasions fur these wars, which m
truth did nut immedintely concern the deleac*
of Ills kingdom; fnr if he Hould have let ihoM
WOTS alone, he might have had quiei enough for
his kingdom of England. Upon the said sao-
tiny search was made, uhere and in thotc trea-
Eunes or bands monies were, whereby tbe king
might be furnished ; and indead, die king'* lai-
nisters took the moneys they fiiund upon tbe
scrutiny as borrowed for the king, though it
were against the owner's wills to lend I beta ;
And atnongsl others, for the most part, tbej
lighted upon the treasurers of relig'ous houses,
many of which bad coffers well stored. Ihe
religious men being thereupon oppressed them-
selves, incensed the gre'at men against tbe
king; and by that means, and the pnlpablenei*
of the injury, the great lords, especioUy the
then constable and marshal of Engjand, Bohun
ing in a streight, and to pacify one extremit}
with yielding to another, passed the act De
Taltagio noil Concedendo, without the excep-
tion or the saving of the anlienl aids which saa
in Conficmatio Chartanini. But it is plaia,
that these general words were never meant,
either on the king's, or on the great lord* and
•ther subjects sides, to beabsoiately general fur
all cases : far notwithstanding those woid^ the
aids ' pur faire Gtz chevalier et pur file marier,'
continued, and so did the king's pon er to array
and send soldiers, ' sumptibus rillarum ei co-
■ mitaiuum,' into remote pans of the kingdo«B,
out nf their proper counties, for tbe defence of
therealm,asappearetb in the continual practice
in that king's and bis successon times ; as, if I
had time, I could make good by a long succes-
sion of precedents, appearing upon records.
See a notable apolc^ or remonstrance pablic'y
made by king Ed. 1, m. 95, enrotled,cancemit^
his proceedings at that time in tliis businefs,
whereby that is made good, whicb I have bt^
fore oUedged. But besides this answer, I shall
give a further answer to this and tbe other sta-
tutes, when I shall have perused all of tbcm.
7. The next statute urged is U Ed. 3, in the
second parliament of that jear ; in whicA fta-
tute there is a recital of a grant in the s^ne
parliament, of the ninth part of the goods of tbe
commons for two years ; the king witling to
provide for the indemnity uf the comataDS,
willeth and granteth to the same prelates, &c.
(wherein note the wotd the lanK) that the said
grant which is so chargeable, shall not be ano-
ther time hnd in example, nor that l^ (which
must be construed the same prelates, &c.) be
from henceforth charged, nor grieced, to mate
up any aid, or to sustain any charge, if it be
nut by common assent, nnd that inpartintnent:
And that all the profits rising of. the said
aid, and nfnll wards, mairingei^, cnstomi and
othrrpiotits rising out'^ tbe realm of Etiglantt,
shall D« spent upon tbe maintenauca vt tha
I109J STATE TRIALS. 13 Charles! 1637.— w i!,e Com ^ Si^Money. [III9
' realm, and of the ware in Scotland, nnil Frince,
and in 00 place cl^nbure, during llie said
Note, that the general dnuse ivliich is urged
to be in this statute, cunieth in [he middJe
part of the statute, and ii coupled with other
matler, ifhich «as but teinpornrj ; and iliere-
fore in mj Judgment ibiiC general ciau°e was
meant to be but temporarjr, viz. during ibe con-
tinuance of tUe u-DM whicli "ere then on
foot; and was' never meant to be a perpetual
discharge forever of all manner of charges and
•Ida, as nppeflreth fur ttiiit, uotnithijla oiling
that clause, king Ed. 3, did shortlj afterwards,
and during all his reign, as freijucnily charge
llie subjects for defence of [tie kingiluui,ns ever
he had done before: J)e had also his aids ■ pur
' fairofiizclievalierttpur file marier,' after that;
which if [he woiils were ta be expounded gene-
rally and perpetually, neither he nor his succes-
■ors could have had. And it is worth the ob-
serrntion, that ibis tintute is never inen[iaiied
in tlie Petition ofRight, n^ TnllagiO non Co[i-
cedendo, and 35 Ed. 3, by nnmes are : and yet
if this had beena perpetual xatute, there was as
great reason to have mentioned it as any other
8. The neit itntute urged is the Fetitio
Right, 3d of the kioL-'s reigii.—Tliis peti
reciteth the Btatule De TuUagio non Co:
dendo, and the statute of 35 Ed. 3, against
loans and other things : Then cometb the peti-
tion itself, nhich is an humble prayer to his
majesty, by hii subject*] that 00 rann hereafter
be compelled to mnlie or ^ield any gift, loan,
benevolence, tax, or such hke chaise, without
commoQ conseut by act of parhnment : And
his majesty's gracious answer in parliament is,
' Soit droit fait coinme est desire.' After this,
hit majesty, that knows his own heart and sin-
cere meaning best, in his second speeches to
both houses, amongst other things, saitb, and
that most justly and truly,"That it must needs
be conceived that be hod granted no new, but
only couGrnied the antient liberties."
I observe, there is no express clause in any
of those statutes which I have before cited,
that no charge shall be imposed withont com-
mon consent, no not for necessary deferire of
the kingdom : And if such a clause bad bem
oflered to have been eiprest, besides that I
doubt of what validity it had been, I certainly
believe, that neither king Ed. 1, nor king Ed. S,
nor our sorereiin, would ever have yielded to
M dishonourable and unjust nn Expression. —
But idl these several statutes being general, and
having no particular eipressioi ''
non Concedendo, 85 Ed. 3, and the Petition
of Right, must have a reasonable intendunetit,
and that by a common and just equity, for ex-
position of those three statut'es, aids and
charges, for so necessary a purpose as the de-
fence of the kingdom ; and ' suloi reipublica>*
will be clean out of tlie law, as fully ai if they
bftd be«n preciiel; csccfted: and if other «•
position be made according to the letter only,
11 might truly be said <•{ such a literal eiposi-
"lion, That Ultra ocHdit, timt laws' made for
the good of llie common weah If, will prove tfa»
bane and ruin of it.
I will give you a taste of some expositions of
statutes, with restrictinus of the generality of
the words of them, though they lie general nega-
tives, Tlie cases I could put nre very many,,
but I will cite only a few, and those such a*
are appliable 10 the te.ison of our case.
Dyer 361. The statute of Glucester saitl),
That tenanis for lives or yearn, ■ nullum facieot
vastum ;' yet a waste, wherebjf llie land Icpsed
' nielioratiir,' is no waste witlim that statute. —
The st.itute of Westminster the second saitb,
That tenant in tail !>hall not ' per fiirtiim, vel
, r_.n- ^. ^^ ^^^ ^^1 j^ ^1^^ prrjudice of
granteib a rent charge nut of ibe Innds intnil-
ed; tliif grant bindeth his issue, so that Ik shall
hold the land charged, notwithstanding tbo
general words of tlie stJiute.— Tliere was k
statute made 14 Ed. S. That for every sack
of woo] carried out of the reslin, the merchant
shall find surely to bring into the kingdom bul-
lion, Iljat is, lUver to the value of S marks, and
to take for it 3 marks in coin. ' SS Kd. 3, an
act was made, That whereas the commons had
granted a great subsidy out of their wools ti
the king for three yean; the king granted, ihat
after those three years, nothing shall be tal
of theci
years, nothing si
.but the - --
mark for a sack of wool.
of^l
AndiSEd. 3, auo-
tner act was maile, 'I lint no imposition or
charge shall be put upon wools, others than the
subsidy and custom granted to the king, tan*
parliamtnl. — Upon long debate adjudged, That
notwithstanding these two latter general sta-
tutes, yet the finding of suretie* fur bringinj; in
of bullion, enjoined by 14 Ed, 3, »as not taken
away hy either of those two latter statutes.
And in that case, besides tlie former rule of
equity put hy me for exposition of general sta-
tutes, another reason is given, applicable alio to
our case, namely, That every statute shall be
taken the most henelicially for the king.
Pasch. 13Jec. In the Star-Chamber, where-
as the statute of 1 Rich. 3, c. 3, saitb, That
the subjects shall not be charged, by any cba:^,
executianioriirpositioiis,called a Benevolence,
nor by such like charge; yet .one Mr. Oliver
St. John, a Wiltshire gentleman, being brought
to the bur, prolenui, for writing a letter to the
mayor of Marlborough, against a course then
bolden, for trying nliat money rich and able
men would give uiito king James, of Iheir vo-
luntary free will ; it was resolved by the whole
court of Star-Cli amber, with the then chief-
justice's advice, that a commisiion 10 treat
what men would give voluntarily to the king,
was not within thesiatuts of 1 R. 3, though
the words were general ; and Mr. St. John was
grievomly caiisurcd for his iDTeighing by hit
IIU] STATE TWALS, liCH.L i6iT.—ne King asoAut John Baiipdai,e»q. ItlW
letter Mgniiut itie nn^rding of the cotnmiswon. '
I conclude this mauer with an answer hy
Mr. Solicilor, sptly glten to Mr. St. John, wlio
urged this clause out of the laws of king W. 1,
c 55. ' Votjinus ut OQUies lil>eii boiomeg re){n>
' nivtri hahtant terras suas, bene et in pace,
' liheri ah omni eiactione injutta et ab omni
' tallagio, ica quod oihil ab eis capiatur Td eii-
* ^atur nisi servilium suum liberuni, quod de
'jure nobis facere debent, et proat slutatum
' est et a nobb eis datum et coacessum jure
' faxreditario per commuoi concilium totius
Ymi see here are general words referring to
a general act nf parliament i yet afterwards, c.
S9r 're these words, * Statuimus ut omuM liberi
' homioes totius regni lint &atres conjurati ad
' moiiarchiam nostcam et ad regoum oostnim,
< pro viril>us suis et facultatibus, contra ini
* cos pro posse suo dGfendendura ec viriliter
' vanduni.' This latter clauie shews the iol
tioQ of the act of parlianienC formedj set do
otwitlistanding the general words of the
— ThUei
t, it e
endetb r
tsof
e kingdi ,
' chia regis' or ' reipubUcE perlditalur.'
' I hace non done with the genera! negatiri
statutes, strong); urged; and I think I faavi
exetnpled the question of our case from the
purview or iii'ciuion of those sta
besides those siatutca, Mr. Ilatnpdeu's coonwi
hath u^d some itatutes Eb»t no soldiers, or
men at arms, should be enforced to fp out ul
(heir proper counties, without wages from the
king. I Hill not let tliose, because urged,
though jiertinent in the generalitv only of the
people's liberties, pass nneiamtned.
The statute of Winchester 13 Edw. 1, c. 6,
was cited fijr that purpose. The words are,
' Ever; nuin shall have in his house harness to
' keep the peace, after the antient aanze.' And
•heweih what the antieat nssiie was. And
then there is a clause for fresh suits after felons,
from coutitrjr to country; and indeed, in case
of fretli suit after a felon, none is bound to gn
out of his county. But nstotlie point of eoiipg
without wngcs out of the counties for detente
of the kingdom, not a word in my hook in that
Then cometh I Ed. 3, c, 5. the second par-
liament ; the words arc, the hing wills th.it no
man he' charged to arm himself, otherwise than
he was wont, in the time of former kings of
£ngl;ind ; and timt no man be compelled to go
nut of bis county, bni where necessity re(|uireth,
•nd sudden coming of strong enemies into the
realm ; and llien it shall be dune as hath been
- used in tiroes pBSt, for the defence of the realm.'
— Nnta. I'hat befure this statute, the use was
.for men to go in stich case, ' propriis sumpti-
bus,* as appeoreth by many precedeois.
Id the same year, 1 Ed. 3, c. 7, tiie com-
moni complained of commissions to prepare
men at arms, and to convey them to tlie king
into Scotland, Gascnine, or elsewhere, at the
charge of the shires; and thai the king hath
■et lefore this time giren any wtLgct to the
preparers and conveyer?, nor soldiers, wbereb;
the commons have been at great chat^. To
this the king's answer i«. The king wills that
ihali be so done no more.— Nota. But note by
the very complaint, that nnthcr the compUint
nor answer are applicable to case of nccesstj,
for safeguard of tlK kingdom.
Then 18 Ed. 3, c. 7, Thai men of arms d>o-
n to go in the king's service out of Eagland,
shall be at the king's wages, from that dor tbat
they depart Out of the counties wliere they
were chosen, till they return. This statute ei-
tendech not to case of necessary defence. Be-
les, Che provision is against going out otSn^
nd, which is not in our ca^.
Then 35 Ed. 3, 8. No min shall be con-
rained to find men of arms, other than those
that hold by such senices, if it be not b;
moo assent and grant in parliameat.—
tendeth not to defence of the kingdom. De-
sides, it is a provision for particular 'men ^le-
cially required. Likewise it is only against
finding llie bodies of men of arms. But pres*-
ing of soldiers or men of arms, to serve in all
manuer of wars, bath been always so frequent,
both in old, laie and modern times, ihit it wertt
a needless labour to prove that which erery
til an knaweth.
All these statutes of 1, 18, and 85 Ed. 3,
are confirmed by parliament, 4 H. 4, c. 13, and
yet Rot. l>aTl. 5 II. 4, numb. Sf, (which is ob-
servable for the time, being presently after 4
lien. 4,) it nppeareth, th^ thtre hod been
commissions directed to gentlemen of the couiF
tr^ for arraying, arming and conducting of stA-
diers io the coasts of the sea, and elstwbere,
divers counties; and tlial
forfeitures and clauses comprised is
: the observation of irhich nai pcriluus
e were many
brought into the
terlnined as ei
-The
house, and by them
The commons upon
dfd obliterate certain clauses in
lions, and prated the king, tbiu
-.u — : 1 ij«»e
from thcoceforlh n
should issue oiheritise tlian was contained la
an amended copy, which tliej humbly offered
ready drawn. And that copy was ngreed to by
the king in parliament, after conference with
the judges, and advice ivilh the lords there-
upon ; and the (enor of the said copy was en-
rolled. And in the precedent thereof appear-
ing in the Parliament-Roll, and being as ftir the
county of Bucks, fifteen gentlemen of the coun-
try are made coiumiieiuners: amongst tbem I
find the n'jme of Hampden,! believe an an-
cestor of Mr. Hampden, the party in our gieU
recital of invasion and burnings, which had
been by enemies : and that to mist them if they
sliould again invade, ' nc pro lalvatione et de-
' fcnsione rc^l et Iseorum,' the king aiiq^eth
commissioners * nd araiandum et triandnm
■ omnes homines ad armn, et ad nrmari faci-
' endum omnes illos qui de corpore sunt po-
' tentes, qui de »ue pmptio boo habent, dm*
Ill's] STATETRIAlS, ISCnAittEsI. l631.~{niieGue^Sh^Mone^. [HU
' Hipsos armare pos^nl, viz. qnilibct corum
< juita statutu ec raciitcates suas, et ml distriu-
' gttiidmn oiunes illos qui in terris et bonis sunt
* potentes, et pro debilitate coiporis impotetitei,
* ad inveni-iduin ammios pro illis qui aon sunt
* hRbiles, '^where, by the way, 1 note, tbtit in
case of coTQnion defence, the people, not tbe
king, are to bo at the costs.) Atid tlie com-
mission directs furtber, Tliat tlie twmmissioners
shail train and divide tbe soldiers, and sball
' conducere eos tarn ad costerBrn maris, quam
' alia loca, ubi et quoties necesse fuerit,' (here
ii sending out of the connty of Bueka, I am
Burc) and ihall master tbern ; and that tlie
armed men shall be armed witli their own pro-
per arms, and not with tbe amis of others, upon
pain of forfeiture at them, fnote the clause of
forieiture) ' et ad arrestauaum et capicndum
' oinnes qui fuerint rebelles seu contrarii, et
' {ii:isaDs committendum, ibidem morsturi quo-
' usq; pro'eorum punitione aliter dutwimus or-
' diannduni' (here is power of imprisonmeDt,)
That coinmiision commands likewise the com-
nuEsioners to array themselves, ' et insuper' tn
uuike-4>eacans, wheteby ' ^entci patris de ad-
* veatu inimicorum poterint cotigruis tempo-
' ribus prffimunite;' and a further clause, that
the coinmisiioners shall ■ ducere' the soldiers
' cum periculum advenerit, ad cotteram maris
* et alia loca, in defensiunem regni et patrixj
' ica quod pro defcctu arniationii et ductionis
' damna patrix nan adveniat uUn modo.''~Thc
commission I hnve taLen, and now repeat at
large, because offered by the commons theni-
Mlves in parliament, instantly after the confirra-
atioD of Edw. the ihird'a tnws, I, 18, and 3S
of his reign berore- mentioned, and ait by the
Judges advice.
All powers Of commtDd imply the duty of
obedieoce. I say no more, but as arms and
travelling by laml are necessary for tlie defence
of land, so ships and sailing, ordnance am'
tackling, and the necessaries meniinned in th
■hipping- writ, are most requisite for defence nt
tea. And thus I have passed all tbe ac'
parliament cited or perlinent to our cas
confess they are legu ligaatei, and I think that
tn my answers to Uien, I have not broken the
traods of them, with the which I acknowledge
both mv conscience as a judge, and my estate
aa a su^ect obliged.
The FovKTH General Head.— I rome
in tbe last place, to my Fourth General Head,
which is, to answer the objections made by
tbe counsel on Mr. Hampden's side. — The ob-
jections were of three sorts; some grounded
ttpon reasons of law; some upoa authorities
and inferences upon records ; tome upon mis-
chief and inconveniences pretended.
Object. 1~S R. 3, f.lO& 11, wag objected
nhere, upon tbe distinction* of ' potestas in cu
Mssing of fines, it is said that ' josticiarii regia
■ per eorura discretionein assideb* finem, e^ ~
' dominus rex per se in camera sua, nee i
not proceeded ' per justiciarios,' but 'perse'
Answ.~I answer, That in our case there n
not any thing done in ■ Camera,' the shipping-
writ issueth out of the court of Chancery ;
besides, we are not now in the case of assessing
a line. It is true that, if a presentment, in-
dictment, or information, be depending in the
king's court, and so far proceeded in, as that
judgment of a Giie is to be given, this is not to
be assessed by the king ' in camera, but by the
liing'i Justices ' in curia.' Howsoever, if w*
go to distinctions, there is 'potentia nbsoluta,'
and 'potestas onjiiiana :' 1 hope' none nul
denv, but that tlie king halh ' putesiaiem ab-
' sulutaui,' in many cases. Stat. Weslm. 1.
It appears a man may be committed ' per spe-
' ciale. pneceptnm domini regis,' and is not io
that case bailable.— QO Hen. 7. The king is
Capitalis Justiciarius Anglic.
1 put youthecaieonlil. 3E. 3, p.6. One
having money of the king's wherewith. to pay
soldiers, misused it, and committed many out-
l^es in Lancasliire ; a writ issued lo the she-
riffof Lanciister to attach him; being by vir-
tue thereof all Bchtd, and brouj^ht to the King's-
Bcnch, he was there discharged ; the reason
given hy Scroope the chief-justice was, because
the attachment heing grouiided upon a sugges-
tion, was against the law : no such writ ought to
have issued, unless tliere had been some iiy
dictment, presentmeni, or Inrormation depend-
ing. But! doubt not, if the ki|ig had by hit
absolute power made a special prectpt in his
chamber fur cumniiini'ut of this man, W could
not have been discharged. — Tlie truth is, the
objection upon theilitiiiiction of 'curia et cn-
'mera,' is nut rightly applied to this case; it
might as well have been ui^cd ageintt a com-
mission of sewets issued at common law, out
of tbe chancery. The mailer is, what the lavr
is concerning the kin[('s power, for provisiati
towarrls necessary defence.
Object. 3.— It haib been said, that diven
payments and promi^fs of payments have been
made by the king in alt ages, upon occasions of
his wars and provisions for the defence of the
realm and sea: and many lecords.hate been
vouched to that purpose.
Answ.— I answer. First, It is true: but
more payments have been made by tSe sub-
jects also in the same cases; as will appear, if
we go to vie by records : multitudes have, to
that purpose, beeo ciied on (he king's side.
Secondly, In some coses, as of borrowing, pur-
veyance, or the like, payment hy the king wa«
of right;- but in the cases merely for necessary
defence, his payment, or promise of payment,
was of courtesy and gVace, and is not binding
in precedent, no more than in the cnse of mines
royal. It appiars by many precedents, cited
in the case of Hiines common, Tliat many sub>
jects, owners of land, wherein were mines of
silver, shared with the king : some had a
twentieth, some a greater, some a lesser par^
UlA] ^ATETRIAI£, t3CH.I. 16S7 The King agaautJalmHaiifJm^etg. [lUQ
«nd this Ku objected againtt the kiDg's «ole i
iuterest, which notwitlutnnilmg itri Biljudged
and the 'suswer made to thniie record:
That it waa of the king's courtesj and
not of right; one roaj do »itli hij uwn w
ftleasech. — But I will put jaa at large (
the records, which hath been cited, and let it
be considered far whom it niaketb. S3 Ed.
rot. 71, Ei parte Reroem orator' Rmb. Thi
writs issued to divera mayori and bailiffs to
make galliea, ordained by the king, and
* cillum Buum :' It duth not saj, ' com
* concilium,' to be made ' pro defensione regni
' et aecuritale maris;' and in the record there
il a clause, ' custum quod ad hoc posueritis,
' cum illud sciveriiDUs, robli in eiitibus balliva
' Testis; allocari facicmus.* But note, that here
is a command the]! shall fint laToulthemonc;
and note, that there is (his further clause in thi
■UDG writi, ' Volumus autem quod bordas ei
' meremium, qute ad hoc competunt, ubi'
' cuDqoe e'a iovenire contigereot, et eujus
' cunqua fuerint in villa pnedicta lel extra
' pro galeil illis faciendis, capiatis.' I prar
Sa note that clause, fiir the express nords of
B^ua Ghana are, ■ nos non capiemns boscura
' alicujui nd casint, vel ad alia agenda nostra,
' line Toluntate ejus cujua boscus fuerit;' and
jet it is commanded, that tliey shonld take
* boscum fliienum' in this case, and I think wi
nntnblj ; for the words in Magna Charta a
' ad agenda nostra,' but the makiog the galleys
, commanded, was not ' ageodani regis' within,
but 'agendum regni,' without the meaning of
Magna Charts.
Obj. 3. — Disnsage, or no precedent for many
years of this course now attempted, both been
objected.
Answ. — I answer, as it is smd 11 U. . ,
S8, upon that olijrction against the force of the
statute of 14 Ed. 3, about the king's presenta-
tions to lapsed churches, that an act of parlia-
■neat disused may be put in use, snd so tliat
law disused may be put in use, especinlly in
the king's case, for 'nullum tempui, ice' —
Also, the thing bath been done, though luit
this particular way, supplies have boen made
otherways; sometimes by collection or moneys,
and means without warrant of parliament;
•ometimes by liberal provisions and grants in
parliuiient, in late king's reigns by benero-
lesceo, before Richard 3's time, in the manner
commanded, and after treated.
Object. 4. — The several means and incomes,
which the crown bath, hafe beea distributed;
(IS that it hath tenures and escuage for wars,
customs and tennrei for defence A sea, fines in
the hanaprr for the charge of his justice; and
thereupon it hath been said, there is, no cause,
if these incomes were well imployed, to raise
moneys through new ways.
Answ. — Vlituna those great means and in-
comes could lerre the turn. My brother
WeMOD made a computation what the Eve
port* s^rice cometh to, aad thereby it Talleth
•hort to be ta^ any purpose. As for escoage.
It ef the realm but for forty
days, and that in case of mean tennm, if the
teunnts proper lords attend the king, for tbere-
in every one is to defend his owu sf^or for
thatiime. Alas! What is that firakiiigdoiB?
Be^des, Cire we sure the occasion of defence
will press but for tbrty d;iysf Again, what if
the mean lords theRis^lvcs uo notiu person? —
But since I havei'ccasiunof speech of escuage,
I must put you in mind of two sorts of esoiage,
by the law. The first is that hefore touched,
and iicommonly called 'furinsecuio scrrittuin:'
And it is only for Wulcs, Scotland, and other
the king's foreign territories. The secand is of
another kind, and is ^plicahle (o this case, ia
regard of charging the subjects, without their
pari lament-consent. It hath not been called
far these many ages; but in the QIack-Book of
Tllburicnsis, I. 1, c. 36, you shall find coucai»
ing it in these words ; ' Fit iuterdum, ut in in-
' minente vel insurgeiite in regnum hoatism
' macliinationc, decernnt rei de singulis (rodis
' militum summam ajiquan] solvi, marcfaam
' scilicet vcl hbram unam, unde militibus sti-
' pendin, vel donativn succedunt : mavult enim
''princeps stipend iarius quam domesticos, bel-
' licis apponere casibus. Hsc itaqiie Gumma,
' qujs numinescutorum solvitur scutagium nun-
' cupatur; ab hac autem quieti sunt ad scac*
Object, 5. — This is a general charge; it ap-
pears by the Mittimus, that every county io the
realm hath the like writs, amnu^t which nnany,
as this of Bucks, are merely inland counties,
ihey have nn places to make ships in. Do means
to convey their ships (if they could make anv)
to the sen; they l^re no mariners, nor tack-
iing), &c. and so an impossibility, or at least,
an improper charge is put upon them; the
Cinaue-Pons, the maritime towns and coantie*
are furnished, and are aptest to be put to this
Answ. — I answerScveral ways. — The inland
couutiet may provide nil those things which
(hey have not of their own, with their money;
' Pecunis omnia obedinnt, nunirous' is ' men-
' sura rerum.' Also there is grcnt reason they
should join, bj tlie rule of ' qui sentit commo>
' diiio, &c.' I am sure if defence be not made,
they may ' sentire incommodum.' So hy the
rule, ' quod omiies tangit, tec' ,
11 H. 7, Sir Wro. Herbert's Case.— The rea-
son in law ofchargii^g heirs in gavel-kind, and
of contribution to chat^es upon land, eqoally
liable, cometh to this case. ' Also the fhole
realm is but otic body ; the division of it into
counties, was by king Alfred. The kii^ may
make a county de novo, by takinv out of ano-
ther ; may make two counties of one, or one
of two, irhe please. Then take the whole as
one body, the several members center in il ; if
one member suScr, every member of tbe same
body sufiereth with it. But metbinks there is
more reason to excuse, than to chaise the ports
and ranritirae parts; in thb case they stand
between the enemy and the inland parts, ihej
are the next door to danger; and it is fit the;
shouhl not b« let Uood, but ibould keep it
,, Google
of thcKecorda, ' iierremedia prorua commu-
' aiter,' tliftC should be itj parliament; I thioL
th« contrary i% apparent out of the writ : for
the writ requires the archbishop, with llie clerjy
of his diocese (not province) by their proc^lrt,
inasmucb tn the king of Frooce, ' Classe
' msiimB el bellatotum eopio>& multitudine
' congregatia, proponens lingunm Aaglicanam
' omnino de terra Anglicnnn delere/ to come,
by a short riny ensuing, to Westicinster, ' tuoc
* jbidem ad cractanda, (Jrdinanda et faeieoda
■ nobiscum, ct cum ceteris prslatts et aliis in-
' cufia rcgni oualiter sic p>erica1iB iiujusmodi ob-
' viaodum.' Note, here is no mentioa of ' pro-
* ceres ;' and besides, clergymen havfe nn capa-
city of knifrhts or burgesses places in parliu-
nent, therefore tbis was not a treaty appointed
or intended in partiaraenti which ia further
enfopcrd Upon tlie words (' (d tracund', &c.
' nobiscum et ceteris pnclatis et aliis incolia
' regni'). If* treaty in parliameDt shonld have
been, ii had been readier to hsTe expressed ' in
|inrtiuneut,' or ia * commvni concilio,' and not
to hftve osed the otiier improper eipressioo. —
Besides, I do nut &nd that any paTliamnit was
Imlden at Chat time, nor at any time between
SI Ed. 1, aud 34 Ed. 1, nfaatsoerer was said
by Mr. St. John to Che contrary. But if this
treaty had been, or were intended to have tieen
in parlinmenc, it ii not concluding ; for it could
■lot be but in parliament, as hath been urged.
Uhject. 0. — This way dratrelh Co many ill
cotisequences; (or it stirs murmuring and grudg-
ing of the people, by reason of the burthens
upuu them.
Answ. — The consequence would be worse,
if the kingdom •bouldb«lost,(whioh I cannot
mention wiibouc a'ptod oinl) and dt mali*
ntiatimm. Besides, popular grui^jlngs arc many,
if not moM times causeless i (bey are not lo
hinder doing of rtghc.
Object. 7. — This is to become an annual
cha[|;e upon the people; there i» cause of
thinking so, because since 1 1 Car. wc liave liad
every year new shipping- writs.
Il theiiecessity conlinucs, thecharge
The a
\» for
1117] STATETRIAL8, IJChables.!. lM7.—m file Owe ^SA^Jtfi«i.y. [lllS
kU, to terve thenuelves and the inlands, and
not have means taken.frum tbetn, whereby they
may be disabled.
Besides, I refer myself to the several prece-
dents, single and at large, cited by my brother
Wi^toii ; by which it appean, that Clie ililnnd
plnces have hetetofbrc been charged with pro-
visions of gallics, hallingers, &c. for the seas.
By the commission of sewers, it appeal?, that
this course agrees with proceedings in like case,
fay the comm<m law. F. Nat. Register. Alt
wlio are within the level of an inuudation, rich
or poor, without respect of persons, are to be
proporlJonably asscsiied, upon chat commission.
—P. 15 Ed. a, roi. 70, in bk. w. The Case
of Rippon, in Yorkshire, is notable upon this
reason; bv it, it appears, chat the law was, ihnc
all that had salvation by the plaintiffs being
hostai^es to the Scots, were by law compellable
to bear their ratable shares, to raise monies for
the plainiids' ransom.
S3 Ed. 1. cl. rot. I, memb. 4, don. In a
writ to the archbishop of Cnntecbury, the words
and matter are notable also to this point :
' Sicut leic justissima, provida circumspection e
. * Mcrorum principum stabilica, hortatur, et
' statuit ut quod omnes taiigit ah omnibus ap-
' probeiur : sic ec iunuit etidenter, uC in com-
■ munjbus periculis per remedia provisa com-
' raooiter nbvietur.' As '
w»s fur the beginning of it.
Yec I deny that of itself it may be annual. —
' Cessunte causa, cessare debet eiTectus;' but
' continuance causa, coniinuandus elfectus.'
This mutt be left to bis majesty's justice, which
God forbid Jb.it any should think he wiU abuse.
Object 8.— It hnih been agreed, that if there
were ' tlagmns bellum,' if we had (' quud absit)
* a Hannibal ad portns,' chen this courft with-
out provision in parliament, ven not against
the law. But it hath been said, that we havo
neither ' fla^rans bcUum,* nor a. Hannibal, in
Answ. — Let us consider what the reason is,
why it is not against the law in case of ' flagrans
■ helium,' or ' Hannibal ad portas.' It can
be 00 other but tn avoid a further mischief.
The same reason holdeih in oar case, wherein
there is apparencly an * inilium malorum ;' and
in stich timei as we now live in, or * rebus sic
■ stantibos,' no man of understanding, but must
acknowledge that security is dangerous.
Object. 9. — Tonnage and Poundage, which
was used in fbnner kings' times to be grantrd
by porUament, for a provision of a stuck, for
those purposes for which che shipping-writ now
issnech, is taken de facto by the king^ majesty,
though it be not yet granted him.
Answ. — Read the words of che statute IJac,
et ulc. aC large. In them observe, 1st. a con-
fession by the commons. That Tonnage and
Poundage Inch been paid to the kinp of Eng'
Jnnd time out of mind: I say, it is so con-
fessed; I do not say, that in truth it was so.
ediy. Observe the word ■ towards.' 3dty. A
confession chat ihe Tonnage and PiJutida^e ore
not sufficient for those purposes, for which it
was comnionly granteti. The occasions are
now for vaster expences than were requisite at
chat time ; and what Tonnage and Poundage
will nut now suffice to pecfonn, must be raised
some other way. Also it Is to be known, for
an answer to the objecCicm againsc the taking
of it, as if it were not taken dejure, that Ton-
nage and Poundage hath been always taken,
with a continuonda upon (ha change of a king, ■
before such time as a grant came of it hy pai^
liament; upon tbe demise of the king, the pay-
ment or taking it neier ceased, or was discon-
tinued, until it came to be due by grant of par-
liament.
Object. 10. — It appears that a parliament
might have been hoWn; there are about sii
months between the teite of the shipping-writ,
and the lit of March enauiag.
Answ. — This receiveth an answer in itself;
for if the king had been pleased to but caUed
lUtf] STATE TRIAl£, ISCh.I. JSiL—Jie King agaiulJiAiBa'ifJtm.aq. [1130
k parlituneni, to have ba<4 praTiaiom granted,
«Dd by or before die 1st of March 11 Car, pro-
^ vision had beeu gnuiCed, ^et the tliinf com-
manded by the shipping- writ ii Au|{uit, to be
nidy ill Mnrcli, cimld have but begun id Marcb
to have been iheu prepared, and so a whole
jrenr apparently lost; in whicli time, God kaotrt
what nii^t have become of ihia state.
Object. 11. —But what if the king Mimibe
only, ihnt there a siich danger as miut be pre-
vented, when ilk tnith there is no such matter?
Answ. — HHth not the Ling a conscience?
Hie law believeili liis athnnutiua, and for that
e they are nut traven>able, as apiteared by
is lit) language ; it is against the duty oF a sub-
ject to cunteit with litm. Agaiu, it ii a rule
of law, ' Cuillibet ia arte sua credeiidum eit ;'
it is the king's proper art, Ui have inielligGoce
•f foreini intentions, to fomee public dangers,
to coiicjudc and put in execution what is ne-
cessary for ttie preservation of his estate aiid
yeople.
' Tu regere impeno populos, rex sanuiK,
raemcnto :
' ' lis tibi enint arte«,' Sec.
Alao Mr. Hampden, by his deinun^r in (his
itkK, hath confessed aU the matters in fact,
which moved the king to iuue iliii writ, aod
•re mentioned in ihe writ. *
Ohject. 12—36 E. 1, Pat. Roll. m. 91, hath
beoi urged: there it appeoreth that the king,
desirotu to amrnd ' gravanjina populo nomine
' suo facta,^ sent cotuiiiissinaers to near and de-
terbtiue what takings had beeti from the sub-
jects moda in the lun^s oarae, but without liis
nanant; and to punish it preaently, and to
do right to tha parties: but as for tiiat which
ibould be found to have been taken \>j the
king's warrant; ' Leioi voil quo soitceitifie,
' et il eui ferra tant que ila ae tieadr' apaie* per
Answ, — Note the distinction in this case b«-
tween the repayment and satitfoction by the
parties for that which was taken nilbant wbp-
raot, and the repayment, if it were taken t^
tvarrant of the king. For in (»m that which
was taken by colour of the king's waiTaut wu
Against the law, it was as torticjua to the snh-
ject, as that which was taken without the king's
tvarraut ; and i a all justice, the subject ought
to have been rettored to bis right, with u much
expedition in one case as the other. Also, as
hath been aJready answered, the words are not
' they shall be paid' but ' le roi Terra taut que
' ils le tiendre apaies per reason ;' that is, as I
conceive it. The king will give thetn a rtasonn-
Ue answer.
Ohject. 13. — Upon the words ' requirimm
etrogamus,' in writs to the bailiOs of diverse
4awus, when they were sent unto to amy and
lend men at the expences of tha towns, it bath
been urged, ergn tlie thing required is a matter
of good-wilt, and not of right ; in which com it
would rather have beeu a Maadaoius, or a
prscipiiBuS) ibaii a Bogamut.
Answ.— Note the Be^uiii mm precede*. Altd
tlie word Hogamu* s^nifiea ai properly a cod-
mandmeo't, as a prayer. Linwood. AImi tb«
words are, ' effectuutie reqaitimus a ro^omus,'
Alio, ' Cum priuceps or8^ precibin prKcepn
But iince tboic writs are uged, let tbcm b*
read; and it will appear, that ia the motlet
of them, pertinent to this tjuestion, they make
directly for the king. FM. for that purpose,
Etot. Sco. 19 E. !],m. T, dorao, but chiefly Rot.
Sco. of the same year, m. 13, dors. In the
writ to Londau there, the king reciting that
the Scots ' fines regni Ai^lis cum injcenti ar-
' niBtorum multitudine ingressi,' bad taken the
castles of the ting, and of his subjects, and did
still hold tliem, and-had besieged more caiitlei;
and that the king, fay ibe counsel of the prciute»,
earls, barons, aod the peer« of the realm, had
-ordained (not a word of the commons) to be at
York such a day, with an army ; aod they bail
promised to be tliere with him ' sumptibus luis
' CUD Into posse sua; nos cnnsiderantes quod
' pro tanta necessitate, GdiHes et subditoa do»-
' trog, ul in pnemissis manus appooaat adju-
' trices decet requirere et rogare, ac de vobis
' specialiter con&denles, vos eSectuose requiri*
' mus et rogamus quatenus ad prsmissa conii'
' dcratiouem debitam babeutes,' thev should
inslnntly array 500 fbotmea, and seou them to
the king, ' tumptibus siiis.' Nota, AU this
done without warrant of parliament; and dsmv
court-like woids, certainly, were of purpose
used in such a time as that was, of iostant ne-
cessity, ' ad faciendum populum,' than ^tfaer
oeedal, or might have been used, if it had b«ai
Object. 14.— Out of Pas. Sfi Ed. 1, rat. 35,
Coiomun' ex parte Ormeiuoratoris R^^. Ka-
Bmnifield and Yale ; he, by his letter to tht
king, answered, that he durst not cbuse IflOO
men there, without warrant; aad Unl be
would DOt tntmer, that is, move, iu those parts
without pay.
Answ.— His writioe that be durst not, is not
to the right, but in nisjudgnteot it was not
safe, or might be dangerous. Also, be durtt
not without warrant, it may he, he thought the
king's letter, without his great or privy-seals,
no sufficient warrant. Also, il appears in the
record, that the kiiw bad sei*t him word before,
that the treasurer should orduin paymem ; bdt
it seems pay came not; and then it is likely
aoUiers would not stir without money : They
commonly cry Guelt, and if ihey have it not,
are apt to disband.
Object. 15. — BepaymeBlscommandedby(h«
king ■ nt cousdtniia regis exouereuir' rrgo, tin
king could not take of right in these cases.
Answ.^The record is 29 Ed. 1, conimun' a
parte Itememoiator' Regis; there is a cum-
mand for rfpnyment, ' Quia oro ui^eoiisiimis
' negotiis et pro utilitaie et defensiuoe lotiuj
' legni ;' ihe king had received of the uhbess
and coaveat of CauouUij^ §lSl. and hiut pt^
1191] STATEimALS, aCBA>i.i>Ll657.— nakCwtra^P'iW)!!?. (1I»
wd repajmcDt ;
e chote word*; And
r'Lliat tlie abben had- petitioned the
king in pirlianient for repajmenl. So here
wa* a promiie origiunllj tor repn^ODt alio in
ttiiacBse; a verj (^reat )um of monej it wm
which KM lakeQ I'roDi one single corpocation,
more than was proportioQable for tliein; and
tberetbro just and conBciouableiihatrepaTnieut
kbould be; this greni (uui was taken upon a
■crutinj, iS EA. 1, in pUcH wliere it was
tbouglii thkt money uiiglit be had. And upon
ifaac the fuTMaid «iun whs borrowed (unwil-
linj^jr. Cod Lnans, aa lo the lender) of tbii ab-
be»,.and of direra other religibus. The like
Kruttay was made, lemp. £. 8, and llie like
coime lor rrpavnient, as appears Hot. Pari. 8
£. 3. And indeed, it had been before tlioiie
limes, and so conliuued, a usual thing; for our
kings to Inult into the treasure of the rcli^Qua,
nhea thej hadoccDsiiiuofmnne;; and some-
time* lo take their ail ver plate, and rich ofi'er-
in^ far supply of itistant wants. And the re-
ligious would nni fail to press upon ibe king's
tnuiscieBce, until thej Iiad rettilution.
Object. 16,— IS E. 3, Ko. Altnan. m. 99,
dors A letter to the arcliliiihop to more all
the people to pray and give alms ioT the king.
Antw. — X SHj no mure, but will read what
the record is iuiclf lognilur. * Pattr, Itc. Cum
' populis legoi, varii* oiieribus, tullagiii, et iin-
' posiiioiiiliU'- buClenus graTetur, quod dnientts
* relerimiis. Bed,' iinte this but, ' iiieritabili ne-
* ccssitate c<Hitpulsi, lie eitdem oncribus iptum
* relevare nou vulcumi' so iio wri>iig coiil'eised ;
necessity excused i(, and continuance of a
wrui^ciuiDot be justified. The king desires
the aTclibtsbap to mote the people, * ut tan-
' tani necesiitatem humiliCer, henigne, patien-
* teret cbaritativeiusluieaiiii' note those ad-
verb*, especkdly ' humiliter.' And they would
hare a good opmiou of the king, and would pray
and give indulgences, tn tlie end he mi^it prosper
in hit WOTS fur recovery of his ri^ht in France.
iNute, ■ 10 the end, &c.') ' Oneribiis pradictis
* Cquie non ex malilia vel prasuinpdone *olun-
* taria, ipios gravant) non obstnntibus.'
Object. IT.— Out of the Pari. Itoll 13 E. S,
m. 9, fit 11. The remembrances of the pariia-
menL One of the points to be considered and
propoted by lh6 kiog, was for course to be
Ukenfora naTT at sea, and lor recovery of
- Jeney, wliicli the French then had coniiuered.
Answ. — III this prupositiun the woni* of the
king are, ' Et per tajit serr' le* coinons dis-
' choiget del guard dd mere ;' by which words
it iacvident, the king canceiTed, that the com-
■nons were hy law cbaiged with ibe guard of
the aaa. — It is true, the cemnums answer. They
pray ' in drt. del guard del mere,' (hut thn be
Bot charged to give counsel, it bnug a thing
wbercof they have no cognizance i but they
give their advice, that they think the iMiron* of
the pans should do it, anil therein they confess,
that the guarding of the land bdongs to the
innunons, ' sam gages demaunder ou prender.'
They could not deny but that the sea most be
(nanled, Ttw]r put not th* cbarg^ of tbat
guard upon the king, but would place it apon
the port*. Of what strength or ^lower ihe port*
were iu those times, I know not; but, in our
present age, it is apparent, tliey are not bj
inajiy degrees, near able 10 defend the aeac,
which mubt uotniihstanding be defended, and
that defence can fall upon none but the wkoU
Object. 18.— Upon the Pari. 15 Pu. S H.9*
pars 1, where the speech of Scroope, then
chancellor, is stt down ; he thereto declared
the cause of ihe snmuioiis of that parliament,
whereby it appenrelh, tliat a liule before thei*
hid been a parliament at Glocesler, and m
provision f<it common defuice was there agreed
; that after the departure of that parliament
the king had assigned some prelate* and lord*
to be Hi lits continual couocil, fur tlie year tcrl-
lowiitg ; the said council treating artd having
before iheir eye*, the great miscliiela and peril*
with which the realm was on all parts environ-
ed, and the summer approaching, and no (Utb-
nance made to pariiament for salvation of tbg
realm, and resistance of the enemies. And
(he said council durst not take upon ihemselvea
nlone the ordinance of BO perilous and high'Ss
act; but it 11 BB advised by them, after Christ-
mas to Bsxemble a great council of all the great
lords of the realm, prelates and others ; and
upon a second warnittg there same well near
ail the prelates, as well abbots a* others, the
earls, barons, banaerets, and other sHgea'of
the realm ; and then tliere the great penU and
niisclitafs (o iba realm being disclusM, Ey rea-
son of the great apptirent wanby Iind and sen,
whertof no ordinance WHS provided ; andmort-
over, it being dedaied before them, by tlie of- ,
ficersof the king, and treasurerB of thewM, ^a
to (he state of the king, and of the realm, that
no I hing remained iii the treasury for ihe ■■»;
it WHS said, in ihe some council, ' Par c(Idc1i»-
' slon final, que ils ne 'poient cet mischiefe m-
• medicr, sans cbniger le common dd reftlme,
' i^ue cliarge ne puit ejire fait ne grant sbb*
' pnrliament ; el per tant per assent de tat !•
' pnrliament ore este somon' et iu )e me|tn«
' temps <jue suflic' army ser* ordebe ti mere in
' defence, et inlvation del realroe et dd nmvie^
■ «t del cuasladel mere a i)uel costage* touts lei
' seignors apprompterant votuntarement d roy,
< divers grand tommes del money. Et isainc
' font bon gents de Lrmdon, et d'oulere'sJlls, a*
' quod leroy per nasent full in dit grand coui*-
' sell, auric envoy pur ce cau je. Et ad done a
■' eux son royall grt. pur repnymeni.' It balk
been said, tl-ic the present question is fiilly an-
Anaw. — I confess that (his Record hath »
great shew of proof, tbat though (hero be wi
apparent and instant time of Bauger to the rsrf
' sdns reipublice,' yet no charge upon tbt .
commons may be made, or granted, wiihoat
parliament. And inUeed, this is the strongest
proof upon any record, that hath been urged on
* Sage* here :
waa objected.
e aafe bud, not Jvipit, M
112S] STATETRIALS, ISCk.1. 1«>37.
Mr. HMDpdcB'i tide. But I think it will re-
ceive an unsHer witli iiidifTereiiC nffectioDs, il'
tb«tie thinKi be obsenefi. 1. Thu thiscoosuLt-
■tioii ■iid dranijig in queati'Jii nf ibe using of
meana, was befoni anj charge Ktuallj Impos-
. ed: Which now J ingigt nut npun, lii'ciinae I
baw- riiiTierty loached upon it. — 9. The l^ing
was thcLi in minority, the I&m hus not then
clear aiid scultrf concerninj; an infant king's
power. Yi/U ^e* it whs debated, and not re-
«ol*ed, uDiil tlie time of Ed. 6. Vide ihe caw
of the <luchy of I,iiiicaiiter. Plow. Com. — 3.
The exsmple of Latimer was then fresh; and
the lords, it inny be, were ovcr-warj, apou his
precedent, thaiif(h it could not parallel with
their*, if thcj h'ad uiidertakfni upon so urgent
eccnsions, 10 hare t^rged the coiiinioni, iviib-
out iheir consent in parliament, — 4. Note the
words of the Itecord, That the lords, appoint-
ed co'.nHllors, could ntH ailvise or find any
means; and it is certain, tliab no cCunsellors,
nnne btit the kii^ himself, could command so
lugh a matter. The king then was not there ;
be was at ibat time scarce out of his nurse's
care. — ^ The people at tha^ time weie waver-
ins, anri itill of discontents ; they had with-
dniirn tbeinialves from pailiament, — Alice
Peers had a liltie before played her pranks ;
and the young king was not fortunale in hii
then governing servantl.^-ljmly. The thing
Decessary, viz. Security of the kingdom, was
done by another way, viz. by lending of money,
as in the Record : But put the case it bad not,
been dune one way or other, then of Decasitv
the people lonst have been charged, though
without, yea, though agaitut their consent ; fa
the kingdom must not be lost, an ultimnm rrfu
f I'uBi must be found out, rather than bo jutni
, and £nal a mischief and nmery must be en-
Oljcct. 19.— Rot. Par!. 2 H, 4, n, 98. Con-
•eming barges and ballingen, commanded to
be uade without assent of parliainent. The
commons petition snith. That thishad not been
done ' nvant ceux heurs,' and prayed that the
comiaitsinni might be repealed. The king's
■luwer was. That Che commissions should be
lepealed.
Ana*. — It is plain that those commiuions,
befor« that time, ceased of tbemselvei ; for
ih^ were made in Uichard 9*9 time, and died
witb him. All commissions from the king are
biu aatlioritiM which end with that king from
wbocn they 'issue. Also note, that the said
HeiifT 4'a answer in parliament goeth further,
vii. But lor the great necessity which the king
huth oF such vessel* for defence of the realm,
in cRte tlie wait should hold, the king would
. commune with the lords of this matter) and
after shew to the cmnmons for tbdr advice,
Which words arc notable to this quettion. It
cannot be denied, but this answer to the com-
■ions' said petiiion in parliament is, in eflect, a
'Roy wi aritera.' — I note that Rot, Pari, 1,
R. 3, m, 53, there is a gratiCcation bj the king,
' in cooGTming of franchises to thoaa cttiea and
towns, ' qua wnt ore ' [that is, new ia this
time of parliament) charged with the making of
balliniters in defence of tlie realm. Here in
Ellis parliament just occasions were given to tli«
oiminons Xo have c(im|/laiiied of this cbaigc,
with the making of builingers, charged npoD
ihera before the piirlinraent, if it hwl beea m
wrung ; but thtiy coiiipiuiiicd not of it. for aat^bt
appenrs ; and the kjiig't gmtificaiioD ia no proof
that it wns as by way of reci>mpcnce fttr •
wroi^ ; but it is pUiinlj an orgonieot of tfaa
kiiit;'s grace to iheai, by Hny of eiicourageiaeot
of theni in their serricts for the common wralili.
The like appears, m. 3, 3, Che<|r. K. Hem.
' inter breviB directa baronibas.' — Also it is to
be known, that in all kiiig's times, soime mat-
ters have been prefrrred in pafli»ment, fnmt
the commons to ihe king, as giievances, sthich
in themselves have not been wronfi, or against
the law : We find in our books, there tuaj b>
Ohjeci, ac—Pari, T Ed, 4, n, 7. In the be-
ginning of the pnrliinient, tlie king himself
spake to the comnKini, and, amongst other
thinas, promised the commonE, he would liv*
Aniw.— The king's speech stayeth not tlwrc^
but giieth further, the words are these: * I pui>
■ pose to live of miiieown, and not to cbarg*
' my subjects but in great and urgent onset,
' concerning more the weal of themselves, and
* the defence of them and the realm, than mine
■ own jjleasures ; as heretofore by the common
' of this land hath been done, aaid borne, to mT
' progenitors, in time of need.' Which word*
are remarkable: not Hsyltahle inthem of duiog
this only by common assent iD pttllameDt, bat
relatively, ■• heretofore, &c. which howit bath
been de facia, you have heard ; namely, toina-
times in parliament, and somclimes out of par-
liament.
The Inst material objection to be answered
by my memory, is the authority of Fottescue ia
hisDe Laudibus LeeumAngliK, where be sailk,
cap, IS, ■ That the kiog of England is Ha pa-
' litUe regeni ; and re^aJarifer, to do what he
' please.' This needs no answer, it is agreed.
But he farther saith, cap. 9, 1'hat the king isay
not ' populi substantias proprias sabcrabere,ie-
■ clamantibui eis vel invitis ;' that he may not
' Tallagia et cetera onera eisimponere iptitiB-
< cfKiatdtis ;' That he may not ■ tubjectum po-
' pulun lenitentem onerare impotitionibut pt-
' r^rinis.* — I answer, that 'tis most tme ' ret;ir-
' lanter, et rcgula uon fai:it jus, et nulla rtgnia
■ quin faIliL'---Cases of necessity, casei of ' bo-
■ num publicum,' cates of ' saJus reiptiyicc,'
are not to be comprised within ordinary nilcs.
I have spoken so much hereof already, that now
I will say no more, but conclude, that in casts
of necessity, ■ pro salute r^p.* every awbject
niust<evenbyrulesof Isw^beatirhittself: iDittt
contribute his best abilities: maK aei-to both
bis helpiDghands.-^Richmen must expose tbcst
treasures. AUc men of. body mutt pot «
aims. Great oouosellora must Eire their bcK
adrice. Women must not batdle. Old loen
and deigyneo (if tittj bn« no ttbar powcr^
UU] STATETRIALS, 13Cbau.u1. l(iS1.—M lit Cote tfSiip-Mon^. [11?«
muK attand their pmjen. And Jud^M nntt i nil iHb judges i« required bcrein ; many daja
lubjec
prew and enforce the Inws upon tbe
cuinpel ibem b> cou tribute.
And so I hnve doDC at this time : and what I
hB.ve SHid, 1 liaveSpoken to the bent of mv
dentanding, and ia di»cliar^« of in; conscic
in a case of ' salui reipubiirz.' — And it heing
high lime now for me to gire over, I ^conclude
upon all mjr reuona and outhoriiies cited, TJiat
ssthiteaseiiupaD the pleading of it, the diHrge
of 90f. imposed on Mr. llamnden, towards the
provision of a ship, commanded by the writ of
4 Aug. 11 Car. regis, is conionant to law, and
Donsequeutlj, thai Judgment ougJit to be pven
^pinst him, Quod onertlur.
Tbe Opihiom of Sir GEORGE VERNON,
kot. oue of the Justices of tiis Majesty's
Court of Commoii-Pleas at WeGtmuister,
delirered in tbe Exchequer- Chamber, in
tbe Great Ca&e of Siiif-jUon£y.
This is a cause of great coDseqaeoce, and it
ane of tlie treatett that ever came in question
in this kingdom, and the records ure infinite that
ha*e been deed on boih aides ; bat by renson
of want of health, and diiobility of body, I bare
BOt been able to peruse the records as 1 intend-
ed, and to hare prepared myself, in which I am
to argue i and therefore I would dnire time
until tliis day seven-night, to peruse the records
and compare my notes, wherein, as you may
•ee, I have taken great paiiis, [producing his
Note* to the Court] that I may be the belter
prepared to deliver mv opinion lo ' thii veigbty
natter : and theo, G6d willing, I will not fail.
[But it was answered by the Court, That in
Kgard ceriaiii dajf have been petempiorily ap-
Kinted at Gnt for thvir Argumenti.it could not
altered now, nor cuuld ihey giv« him any
further time.]
Whereupon lie said, ' Seeing I may not have
* any furtlier time, I must therefore deliver my
' Opinion in bripr,Hircurdiiig
imy
conscience lo he, which is as fullow-
■That the king, DTo Iiana;ia(i/iro,tnaycha^
■ Ilia sahjects, fur tlie safety and defence of tbe
' kingdom, Dotwithbtandiiig any ace of parlia-
■ meat; aodthatitiswarrautableby Gascoigne,
' 13,EH. 4, 14. and mureover, ihai a statute
' derogatory from the prerogative doth not bind
' the king; and the king may dispense wlib any
' law ia cases of necessity, 3 Hen. 7,11.* — Anil
(o concluded fur the king,
A few Notes of the Arovm^st of Sir THOMAS
• TKEVOll. Knt. one of tbe Bar..ni of his
Mojesiy's Court of Exchequer, in ibe great
CaseofSarp-MoHEV.
After be had opened the record he said, the
ration upon it wai. Whether Mr. Hampden
uld be charged with the !iO>. impnied opon
bim, as ibU EOte is ? This caae, by reasun of
the weigbiiness of it, is adjourned from the Ei-
ekeqner hicltei to be argued, and the advica of
have been speot in the arguing of this case, as
it well deserves; six days by the defto(iaiit,aud
six days on the king's tide.
It ik some labour, ia a case of tbiM extent, t»
contract myself, according to my conscieoca
ajid best knunlcdge : 1 sh.ill seriously ponded
the weight of iliis case, and dige^ it, as liy the
law is warrantable, and so grounding my j\idg-
irdingly. And the judgment irhicli I
shall^ve, in fine, is, That Mr. Hampden ought
"~ be charged wi^ this VSt. and is to give satis-
;liOQ for the same. My lord (Joke saith of a
short case in bis 11th Report, that though it ha
ae abort a case as ever was argued, yet the
weightiest in any court fur consequence i so it
maybe ai&nned of this question, for the mm ia
but !0i. but the weiglit thereof is of lar greater
eitrnt: it conceriielh the itliole kingdom.
Mr. Hampden hath demurred, and tliercbj,
hath granted all matters of fact to he true. Tbe
defendant's counsel have taken much pains for
their client; and, without Sdtterv, se have tbe
king's counsel. — I acknowledge ilie laying of a
charge upon [he people by parliament is a safe
way, if time and occasion will pennit. Anna
iiaa, when the Invincible Armada, so termed,
came into England, the provident cate for tba
prevention thereof wasout of parliament. Alas!
It it not parlioments cnn keep us safe. Was
not that detestable Gonjiuwder Treason, 3 Jac>
devised to have been executed in the parlia-
ment time i the wisdom of tlie parliament did
sot discover this utter tain and destruction, [bat
had hk« to have happened to the king and king-
dom, nnd to the overthrow of religion ; but il
was the threat mercy of God that did it.
This kingdom halh bera always uionarchicaU
A democratical government was never in this
kinzdoin. In the time of the Britons, SOO years
he^re tbf birth of our Saviour, when Brute
came from Troy into Britain (aa one wiites) it
had a politic and regal government; [liis is con-
firmed by ibe Letter from tbe Pope to king Lu-
cius. And our king baih as much power and
prerogative belonging to faim, as any prince in
Christendom hath. It is [be king's prerogativa
appoint the beginning and ending of parlia-
ments. So great ■ body can move but slowly,
great part of the seven months would h*
spent, or the parliameut ended; and then we
were hut to b«^o to rig and trim our sb'ps, ta
provide powder, bhot,cable9,&c. many of tliese,
pei^aps, to be had in foreigu parts ; muterl
and gunners, &c. lo be got : ready money most
be had for the providing of all thrse ; this will
rrquire cimveuiunt time before this can be done.
What hazard may tbe kingdom run all this
while? what policy is there to make stnlcatlBir*
known to the people? They mii,f thaok lIuxD-
selves, they would not make a ship for tbe ser-
vice, nnd then they aiicht have lud it for their
uwu use aflerwatds. When [he kingdom is ia
danger, the king may coinmaod a bupply fur
preveiiiiun thereof; and who ean tell better
thanihekinghowtopreventtliedan|!eTJ ' N*-
' cetsitas tion habet legem.' Th> kin{ then
IWr] STATETRIAlS, I3C11.I. 1637-
niMt not rorbeor. The commoD law itoth re-
gtrd (be commoD good above particulu; aaiD
pontnge, jnumge and paveage.
The provision of shipping hntli prevented u»
from danger hitherto, and [ hope It nill still.
It hnth increastd cbe honour ot the kingdom.
It 19 known uot only to ourseltei, but to othet
princes, that our ships are of far 'greater bur-
then, sirtogth, and better furnished, thnn ever,
was before. All which ledoundcth lo the king
■■td kiugduni's honour. The ship, called ihe
SorereiEn of tbeSea, mair be termed, the S'ove-
ragii of all Siiips.
To cunclude : the sum oueued for this hu-
•iness, I wish ii nair be pair! bf all chevifaily,
for it is fur s general goo'l, for the safet; of tbe
whole kidgdoni : tlie aobjectn ore not prejudiced
bj it, ekiier in iheir dignities, ur properiiis in
their goods : the king's prerugaiirei protect the
peoples liberEiea, and ttie subjects hhrrtjr the
King's prcri>g:itive 1 it is profier for tings to
command and subjects to obe;. We that we
tbe judjei of the kini{doro have paid it, and
tbeirfore it is lit o*ir opininns concur with oor
actions in this case. And so my advice is,
thai Judgment ought to be given tint Mr.
Hampden ought to be chained with tiie 90i.
Mtessed on him.
The AacuuEJit of Sir GEORGE CROOKE.
tt.oneofttieJusticesufiiisjMajesiy'iCoun
of King's Bfnoh at Westminstt-r, m the
Exchequer Cliomher, in tbe great Case of
SuiP-SIONEV.
This rase of Mr. Hampden's Hands upon re-
cord, and vihAt judgment ma; be upon this
rccuid is tbe quesii.m. I find uo part; in thii
case but Mr. Hamjideii. A Scir' Fac' is
brought against him, to shew caute whv be
should not be cliariced with the 80t. assessed
upon him, towards ilie finding nf a ^lii^. The
occasion of that was ilie writ of 4 Aus- w''ic'i
is thetbundulion of nil; and that is directed to
the sheriff of Bucks, as to other sheritf^, to pre-
paie a sh<p nf such n burthen, Ibr the reasons
motioned in the writ, ' Quia praKlooes, &c.'
becaas'' the kingdom is infeste'l with pi-
rates, ftc ' Quod datum eit notiis inielligi,
' &u.' for thai they do seek 10 draw men into
captivity ; and alM> lest we sliould lose tbe do-
liiinti>n of tbe »eai and for these rc.isons thete
writs are sent forth. For the time that they
frere rocoiitinueHbroad.it is twenty-six weeki,
>o lone the payment of the men to be at their
chnrgp ; ' et quos rehellea. Sic' and if any do
rebel, that ihey shoald be imprisoned. And so
the (eoird letleth fiirtli further, that upon this
writ a Certiorari went forth, and Mr. Hamp-
den was ceitiBed not to have paid it. — Now
tipon nil Mr. Hampden bath dtmanded Oyer
of nil tlie i>ri(s, and haih demurred.
I man cnnlVss, this cause is a very great
cause, and the greatest cause that over (leme in
queili'in bctiire any judges. And for my own
part, I am Sorry it should come in question in
this place, more requisite it wu to baT< it de-
.TlKlGiigagamuJbhtBaa^daifaf. [UK
bated in «, public assembly of the whole nw;
far on the one kide, it concerns tbe king in 111
prerogative and power royal ; and on the olba
^ide, the subject, in bit lands, pxidi, aad li-
berty, in all that he hath, besides his hte.
For my own part, I am sorry that t *ai o
forced to dissent from my brothers Utu tart
argued betbre ma a filter coune it were Sac at
to have ariued with (hem pri*atdj, wha bm
argued so karuedly : and well. I tnvcxtdiii
all that I could to have concurred with then ;
but speaking, according 10 my own bean, (bi
we are to ffve judgment upon our oaihs) io n-
speci of my reaM>n and conscience, I cumt
concur wilb ihem; it makes me al a Kail
with myself, bacauie of the aigunenliof » '
many learnt men before mi, aud to tmfta
my judgment, whether it be erroneoo* or no.
Yet 1 must set dona my own teaion!, and
upon them leave them to my lords tliat owe
after me tojiiilgeon.
JudiimeDE isof the Lord; the hearts of ma,
and also Ibeir judgnienis, are iu ibe hudiii
God; and when iudgmtnt is ooce past, ■*
hnve dune. For my own part, I know in ibis
case we cannot do so well as wc sl^auliJ, bit
tn satisfy ourselvei in our consciences aad our
undcistanduigs ; and in this cose weareingii*
counsel to the ting according tu our oalk^
wliether this chaise he Irgol or nut. If lepli
Ihe subject ought not to complain : if Ml
legal,' tlien not in the ting's puwer ihu »
chnt^e the subjtct. — The king's counsel bm
maintained this writ to be good ; and lU
judges that have t^'ied, in their judgaiBiB
have maintiiined it. Then tbe kin; isadtiMll
by his judges. Whether this be It^a! or no,' If
legal, it is well; il not, ihen the burden lis
upon us. For the king doth noihing bat ffW
ha it Bdvised.~The case balh been eicellesllr,
leiiraedly, and well nifueH on huth sides; i»
that which was pressed by counsel on titia
aide, did not much movf, for they sfp* "
counsel ; and wo are to give judgmtnl upon
our oaths, on whnt ihey have said.
But thf Judges opuiioiis already delivend da
much trouble me. When I have been a
counsel, 1 hive nrgoed one way, and h**
thought nivself Vfry clear; when I hsvecowe
as a judge, and argued, I have tliougtil cJnr
otlierwiie of the cuse. I desire ra giie j»{-
ment iu this case according to God's dirertK",
and my own conscience, and that is ihe !>**■
And so I do not doubt but all nit hrottert
have gone according to their conscience, wkick
makes me suspect myself. But every mi*
staudeth or falleth Io his own master. I 't-
sire God to guide me to a true judgment; ««
though, for the reasons aforesaid, I dogbcmf
self, yell am not of the snme opinion ■'"''"'J
brothers: but occording Io my couscience, '
think that Juilgment ought to be given "^
Defendant; for which my etgniDentshsilM"
upon these points. , .
1, 1 hold that this writ is not «llo7^^
the common hw, but is > wfit abw"""^
against the cOMmoa taw, 3. AdiwC it **
,Goo;;lc
fTTATE TRIALS. ISCbaklksL \6i7.~-iiiheCax<^S^^MoM^. [liaO
' conriliam.' And that wai a lam not givm hj
the Canijueror, but ^ir«d b; bin), ■• to b«
the ta» of ttia kingdom.
lo the Cbarta in kiog John's titae, it it plain,
the liberty of the subject is there confiruiod,
' NaUum icutagium, nullum auiilium nisi per
' commune coucilium.' It ippesreth plaitilj
by the buoks, tliAt this cannot lie done but t^
coiiwnt in purliainant. Fortescue chief jostice
aetteth dowu whHt the law of England is in that
kind, as insCtncCioni for tie joung prince.
"ailli he, ' The king gorerncth hii people b*
power, Dot only rojal but alsg politic' u
this power over (hem were rojal only, then be
ight change (he Ihwi of his roaliu, and cbar^
s subjects with taillsge, oitd Olher burdeni,
ithout iheii consent. Thus the king caa
change no luwi, ni)r yet chur^e ihcm with
strnnee imposiliont gainst their wills. H>
ill down, as the head is ibe cbiri^ of the
body, 50 the kin); ii the bend of his people ;
cannot take any thing irum theiu, Riitiout
ordinary ciiaseiit ; the common consent it
parliament. Cap. S, an eipre«) clause
there, Auc tadrnduo. Sliew me any book of '
against this, 'I hat the king thau take no
's gnods, bui he hhuU pay for it, though it
be for hb own provision ; or lay any tiurdait
ipcHi his lulijecis, hut he must do it by their
oiiscnt in parliniueut. If this be the privilege
of the subject, ifaen it is express, the subject*
oii(;ht not lo have Ihli. charge imposed upoti
theiii, but by their common content. 1'houib
it be said, a statute is the act of the king, tM
lords and the commoui only give iheir con-
sents i I say, it is the act and gran; of.ihe com-
moQi, as well as oF the lords; for w bat consent
is given there, ii given by every man of the
kingdom, by the power of the voice which they
gave in chasing the knights of the shirts and
hurgetses. There ii a book case 13 Hen. 4,
Ful. 14, expressly. That no man sball be charged
without bis Fonaent in parliament. Gaacoigue,
chief justice, gave it as a rule. Cokc'i Heport*,
Clark's case, No man to be charged m St,
Albans, but with their consent, — In ibe Cham>
berlain of London's case, to put a small sdin
upon a merchandize, Ike. when it h far iha
good and benefit of the people, is a thing to be
ailowed through a common ordinance to be
good, so they have nu loss by it ; n in case of
murage, pontnge, paveage, and tolls of markets:
Taxes upon the people for these are allowed,
because they are maciert far nae of the people,
end are nut as a matter of charge imposed upoti
the people,
Fill. Herb. Na. Br. The king htlh the go-
vernment of the whole kioj^dont, both in time
ot war and pence. None will deny but that he
may command, that no man can doubt of; and
therefore in that kind, in point of inundation,
the king, by his writ, commandetb, That that
shall be stopped, and l>e done by those thM
bave benetit or loss by the inundation ; and
ihote only are to he charged, as cotne atiCo
Kent; If an ioundntion be in Kent niar^iea,
shaH the cMDiy «f Middli-wx be chai^ tbef*>
1129}
gftiti M comouig Iiuf, yn it is against divert
atatules. 3. I hold, iltft no necessity, nor no
pretence of danger, can give this cause for tbe
writ: for if the writ be s^aiust the common
law, no pretence of daneer can warrant it. 4.
There 11 no warnnly by prerugntive of the
crown, nor power royal, tor this writ. 5, That
this wit is the first writ that erer was devised in
this kind, and first put in pratUice, either in in-
land counties or maritime parts. 6. That there
ie not any one precedent, nor any one record
Judiciid, oj- judgment in . point ol law, for the
writ J if not, then I bold it not fit to be laain-
I cume now to the writ itself. 1. I hold the
TDotivai of this writ to be insufficient to warrant
the same. 3. The coDimands of tbe writ are
merely B|^nst the law ; bet^use the commnnds
of tbe writ are, to charge the subject to hod h
•hip with men, mtmition, &c. sgaiost the words
of tbe cimraon and statute law, 3. If they
werCf yet the auessments of the writ are not
war^ntable by the law, and so no assessment;
and if no good writ, then tbe Scir' Fac' will
■ot lie. 4. I come t« tbe, Certiorari: and
whethsf it be well-grounded, or bo, is tbe
^estion. And I bold, it doth not well issue,
■1 this cate is.
I. For the point of law. We thacare judgeii
are botmd, according to the law, not according
to our own imaginalioos, both to judge accord-
illg to the law, and tbe law of this land, either
of the common law or of the statute-law ; and
I see tio book, nor know of any authority that
doth maintain this writ ; but contrariwise,
there are books and authorities in law, that
aay, this writ oo^i not to he maintained. It is
a rule in Littleton, ihst < That which was never
* done before, cannot now be done,' I say,
there cannot be produced on example of the
like writ, I mean the writ 4 Aug. 11 Car. that
ever went unto the whole kingdom, to make
•liips, 6k. nor unto all the maritime counliei,
atone time; but it i> the first precedent, either
for inland counties, or mariiiroe parts ; and if
BO precedent befnie, then not by the law to be
maintained.
S- it is against the common hw of the land,
which gives a man a freedom and pniperly in
his goods and estate, that it cannot be taken
6am him, but by his consent in specie, as in
CsHiameni, or by his particular assent ; fur the
iw puis a difference between a frecioan and
bondman. A bondman's j^oods may be taken
witlibut bis cunient; but not so of a freeman.
IImd thos stands the cat^ and the question
ftriseth, Wbetherthis writ tocommand thesub-
j<K1s in any inland county, to prepare a ship,
and provide men, munition, tic. want out by
their consent i And whethrr allowable or no,
if without their consent, for this is a charge
Dpun tbe subject. And I say, no common
cnat^'npon tbe subject ongbt to be but by i
common consent, or in a parli amenta ry course
Mr. Lambert taith, that in the Conqueror':
time the king could chat^ the sutyect witli ni
«nju«t tuat^, nor ttilige, ' sed ptr commune
1131] STATE TRIALS, tS Cr. I. tOS7 T7ieaiigagaitulJtA»-ILmfdai,aq. [1133
witli i No ; but those that hkveprolit bj ii,
h»ve lots bj it. Vid. the 10th Oeport.
Tiiva here standeUi the case ; if tbit be
the question ii not now, Whether a.
charge inaji be kvied upon the subject, wiilinui
CODSent : No (jueitioD but n cummon char^
may, if occasioD, >od every man ought to
But the question is, Wbethcr, upon the alle-
gations in tliis writ, [here shall be ■ charge to
impose mone]' upon iberti in the mewi time,
without thait assent M sajp not, but by a parlia-
mentary course : in that litnd the conunon law
doth not allow it. A notable case in 14£. i.
Banc. &. rot. «0. Heb anJ Leicr's case m
Durhnia. An action of trespass waa brought
It Lever for uking away the cliestof Heb's
goods «nd 1
£il(y ; the jury |
Bdef •
[t special Terdici, That
ntcool: tiiemoneT; but it wat upon
n; The Scots hid invaded Durham,
and burnt divers housesabout Durhsm; upon
which tlie iuhabicanti of Durliam auembled
together to consult abuuc tbeir defence; and
took an oath to obey the ordinance to be made
by consent amoiif^st them; wliereof (he plnln-
tiffwasoiie that snore, and );aTe big consent.
Wliereupon they made an order di give the
Scots a luin of money to depart, but lliey ivould
not be goue without ready inone]> ; whereupon
they made a second onlinancp, Thnt eiery
man's house should be senrcbeH, aod vihere
thev found money, to lake it i Thereupon tlie
defendant took tbe money out of the pin in tiff's
house. Tlie julst^ asked ihejur^, if this Imt
order wss d'Hie with the plaiotiff"* constDL
Tfaey s lid it <nii done hj renvin of the occa-
sion. Tliereupon judgment was given for the
pitiiulilf ; That bec^iuse it uns notwiili hii con-
Miit, tliat therefore ihe; ooglit nut to lie churged.
Jl came into the Kin'^ s Bench, and iliey seeing
ef ihii special verdict, the judges of tie Kinj^'s
Bench reiersed the judgment; furwhv? What
was done, was d'loe by his own ron^tnt and
proper ac', liecause of his consent upnn bis
oalh; and therefore (said the Jud|;es) be had
means to hclphimtclf agmit the commonality
sf Durham, and they to pay liiin again to his
propiirtio liable part. Tina proieth. That no
man ought to part nith his goods, hu^ with his
That of Rich. 3, wliich is not a statute, yet
doth shew, (hat the law was at lliut time, as ir
is the tame at this day, Advice was taken ii
a grent aisemhly tiow ti> chutite ilic coroqions
And it was answered, That they could not hi
charged, but by c^mlnon consent in parliament
And it was the dcclamtion of Scroope in the
parliament-hiiuse, Tb^t without consent
pariiament, the commons ought not tn
charged ; because the comnxonn have a cons
ill parting with their coudi. It is said
Doctor and Student, 'That the subject hath
tucli B property in his goods, that no man shall
meddle with iheni, but by hit conscnti which
is the reas-in tliey recover damages when they
maddle wi;li their goods, not by liieii
Another reason wby the cr>mmoD law look-
h into It is, because of the inconvmieDce*
thaCmightio^e,if tliisshoold beallowed. To
charge one ship, by the same ressoaihera mi^it
be ten ships charved. We have a pious king,
and though he will not do it, yet tbe law loofc-
elh into thisinconvenience. That of DaBejell
began in the year 991. Tbe fitM compositiiMt
was ]0,OOOJi tbe second ld,O0OJ; the next
24,000i; the next 36,0O0t; and in 10 or 11
years, by five sever*! risings, itcameto48/)00/.
And so, for aught that I do know, this may
come to forty hundred thoiuand pomula.
Therefore the law looketb to make certaiR tli«
chains. The fin>t double subsidy that ever
was, was .It Eliz. and tlie Chancellor nf the
Ekcbeqner said, it did make his bean [a qomke
to move for a double subsidy, one subwdy
being granted so lately. The rcMon of it was,
because the Spanish inmion was foreseeii. —
After the Spauisli insasion was past, then came
(ha second gmnt of a double subsidy ; and foe
said, he hoped nut to live to see a ubiidj
granted again. 33 and 39 Uii. it came to thi«*
subsidies, and four sulwdiei, but if there bad
been ten subsidies, what was done, was ckKM
by parliament ; nad tbe law alloweih it be-
cause of the greater inconveoience. Tben it
is in the judgment of the parliament for dia
appointing of those subsidies, as the occaiioa
'I'he statutes of Tonnage and Poundage, as
appears by all the atalutes made in Rich, x,
and coutinued till Hen. 4,5, 6,7, and ao dovn-
wards to king James's time, are to tbe end ibe
king might have money in his coffers fur ibe
defence of the realm, and f<ir the snfe-RUvd of
the sea, that he mieht not, upon a sudden oc-
casiiin, be unprotided; becaute it ts reaaoD
and fitting that kings should ever have money
ready against any o< ""
iiuploy it for the defence of the tiugdnm, s
safet(unrd of the sea. The dillerence betHeen
a charge and defence is much; for tbe £iM
there is no law lo compd the subject uoto it,
bnt by parliament ; for the second, which i*
tlie (Ufence, every man's person is bound in
defence, ' enponere se et vitam ipsam,' upon
peril 'thereof ; . but he is not bound to ant
chai^ without his consent. So in this kind I '
hold, Its the law standetb.lhat no cliarge oi^ht
to be imposed, but by their common consent ;
for you will luuke it all one to take away the
property of tbe goods, which you do ^mtiim
laado, though not in iptcie. Power is given to
distrain the goods, and to sell them ; and every
man is lisble to the discretion ofiha sheriff.
But admit this charge might be imposed by
the common law, yet I do conceive it is pro-
hibited by the statute ; for I bold, as now my
brothers the judges have held, that (he statol*
De Tallagio noii Coocedendo, ii a statute
notwithstanding what hath been argued at the
bar to the coutnuv. It is »)tMreiit is oat
printed books ; and in one ofour books, tin
1133] STATETRIALS, liCtiAi±nl.iey7.—inaeQut<^Si^Mmq. [1134
«xpiew time n mentitmed when it should be
nwde, liz. 15 Ed. 1, then it ii »id ta begin.
TailUiie is bd antient aid^sod 90 is, ■ pur Ble
* marier,' and ' pur faire £li cbernlier ;' but
no tailUge without k common consent in par-
liament i to I agree witli mj broihen, that it
ii m statute.
Next tliis statute of 35 Ed. 1, wliich ii said
to be no statute, the kingdom of EngJand liath
erer held it for a buckler for ihem, ibat no
chaise (wiibout cominon umient) should be
laid upon them. And the reason wherefore
(hu statute was made, was in retpect of ibe
great taiei imposed on the subject without
consent, in time of war.
Theneitscatute-isUEd.SrCap.l. Agreat
BubsidT was theo granted. Whet was then
done f The king dolh grant for bim and hit
lieirs not to put them tu anj charge herenfier,
unjeis it be by common conient in parlininent. —
Oh ! but this is but for that king bimtelf alone .'
— I answer, it is perpetual. If the king doth
(rvut for him nnd bis heirs, it doth go to all bik
posterity, and is a good act of parliament ; so
chat is the second act of parliament in the ne-
^Btire, (bat no charge shall be laid on the lub-
ject, but b; common consent in parliBinent.
That which is stood upon by mT brothers, is
SI Ed. 3. That statute was made lo grant a
•ubudj upon ever; sack of wool ; and also
taaei upon merchanls goods tnmsponed, 6d.
ia the pound. This statute thus made, the
king atterwardi, because few of the sacki of
wool vrere carried oter before Michaelmas,
■ent forth a proclamation, that 6d. in the pound
should continue till Easter, aod nn longir .1 but
half ■ year after this was complained of to the
king, and the king (by prodamation out of pai^
liamant) did take away the 6d. in the pound.
S3 Ed. 3, in the February then next following,
■n express act of parliament (this subsidy so
granted) to cmtinue till Michftelmat, aiid b^
}>rodain«tion to t^ntinue till Easter.— They
confirm all till Eatter, and no further continn-
«iic« of it to be. — By this appeareth, that for
•o small a thing as 6d. iu the pound fiir such a
time as from Michaelmas to Easter, that it was
■ charge not to be b{>rne but by conient in
parliatneDt.
4 Hen. 4, n. S8. A subsidy granted, that
ttti* should not be drawn into example to
Tbere it is said, where a subiidy ia granted, it
•ball not be gi«Dled henceforward for defence
of the kingdom, or lafeguard of the see, but
In parliament. — Then came a parliament.
What did tbey complain off The patent of
the office of Abera^, though it was but a
Hnall chaige, yet ihey set down that this was
coDtranr to the law, that no taxes, nor no aid
ahould be imposed on ibe people, without con-
■ent in parliamoit: the commons were then
very zealous in small matters,
S Hen. 4, m. 9S. Hoc individiio. At that
tine a commission went forth ta dirers towns
IK tlMikit^dom, to provide, &f. Wbe* tfaen
tbo^eci
which by the law ihey ought not 10 do ; and
prayed those rommiiHions might be repeided :
the eiiswer ii absolute, ' Let it be dune.'
■ Soit fail.'
The next is 1 Ric.S. True, the kiilg was an
usurper. Benevolences were granted ; but
that was no charge, as ours is, and ihefeiii the
commous clkimed their liberties. — Laatly ; the
concluding law is that ofS Car. the Petition of
Itigbt, ibal no person ihall be taxed without
cons«ut of parhament ; at)d when ihe kiD)> wis
informed of the former statutes how they were;
thereupon this statute 3 Car. nas modr, wliich
leciieth the s^ute De Tnlbgio, and diver*
other atatutel ; and it was referred 10 my lurds
the judge* (most whereof are here) whether
this law doth give more than formerly from the
king. And we w«re all of opiniou, that thb
law did give no more than what was formerly,'
aad was only but a reviving of the ancient urt-
viteget of the subject ; it added no more, Dtit
only revived what was fbnnerly granted.
I du conclude, that no chaise can be imposed
upon tiie commons, without thnr content in
parliament. We that are judges, mnit go ao-
cording to the intention and meaning of those
laws. The meaning of the laws in this kind
was, [hat no manner of chaige, aid, or lax
should be laid upon the subject, but by consent
in parfiiment. The judeea are to expound
them according lo ibeir intention. But they
ny, the practice hath been otlienvise. Wc say
not now what de facto, bat what de jure wat
done ; and we, as judges, m^ not allow
dt/acto, ' sed quid de jure factum fuerit.'
To answer the great objection, it is for the
defence of ^e kingdom : here is such a ne>
ceuity and danger, as will not admit the delay
of a parliament. — I hold, for my part, that no
necessity not danger can allow a chaise, which
is a breach of the laws. I hold it abgolutelj,
that for a general charge of money upon tha
people, it canuot be upon onr pretence of don-
eer ot necessity. Men* persons may be u»ed
in the caie of neceggity or danger; for eieiy
man is bound to defend the kingdom, but n
of necessity and danger ; for then the king
may commaod bis subjects, without parliament,
to defend the kingdom. How p By all mea of
aimi wlialsoever, for the land ; and by all ships
nhatsoeverjforthesGB, which he may take front
all parts of the kingdom and join them nitli his
own navy; which hath been the practice of all
former kings : in tbeir nece^ity tliey havs
taken ships fiom all parts of the kingdom.
10 Ed. 3, m. a, Scot. 10 Ed. 3, m. IG, when
there was a great na^ of Scots and French ap-
peared, and intended to come and invade Ibe
kingdom, tbe king appointed tivo admirals, ona
towards the North, the other towards the West,
and to meet together at what olace he pleaicd ;
and ra. IC, sent into Nortb-Wales and Soulh-
Wale* to maintain one ship, ttlber «f thets
1135] STATE TRIALS, 13 Cm. I. I6S7.
upon their own cositi of tbe tea, for the de-
fence uV tbe kiuitdom. And in But. Aim.
li U. 3, »ria w«nt fur tbe arrekt.iiic of ships
in all \itTts of the kii^dom. Roi, Viag. 1 H, 4,
IB. IS, wrii~ ii^aril ta all srclibntiops ind
blihripa, slien-init ioimiiient ilbng?r, thai ibey
■boultl be reauj' in urinb, to ciimo mnd aisist
* ad cuitodii'DduBi mure,' whjthi-noevfr he
diouM Hppuiiit them. But io tiiat time, wbeu
the danger wm 6uch, jet no ships appointed'to
l>e prep<ir<:d throughout (lieiaiid. Anil 5 Heii.
4, thnt ail tliemen of tiii parrs should oime tui^e-
ther in itiidi a place : this was only an srrajin^
of rnen to be in rendineii. 3 U. S, to I'be »Hme
purpuse. And 1 Heu. 7, Hhicli was much
stood apon, of a rumour of wan between tlie
king of ibe Rouians and the Frenrh kiiie. which
nighl, perhapi, in the end tend to an iiiTaWfin
of tins kingdom, there was an arrajing of men,
from 16 to 60, and gatliering of ships, and tak-
ing order for watch and ward opon the sea-
consEa, bat no command to make ahips. 4
Hen. 8, pan 2, there ibe king by proclama-
tion saitli, that ' the enemy is Tcady Co enter,
* (hips aw furnished with men of »ar to invade
* the kingdom.' What then ? What was done
-tlieii ? It is no more, but that evrry connly in
England have men in readiness to assist, fiom
Ifi to 60, to defend the kingdom, and lo hare
. — T3ieKuigagainnSehitHaMfde»,»iti. £1US
{ood watches and wards upon 1
But, I pray you, in oU these
Heu. T, Hen. i.
tbeu
s of Hen. 8,
: there ever any
trrits went forth for ships into any county } It
doth not appear that any county was tn pre-
pnre or mabejiny ships ; but enlymen in arms :
■o theluK makes prariaion, in time of danger,
by help ofiheir penons, and with ships, not
with a pecuniary charge; for that cannot hold
for anv, nor can be dune without par!! amen t.
And if new ships must be made, it must be
made fay parliament. If m be the writs be to
make bhips, then Ut the sheriK make them,
and shew for their discharge upon record, that
titey are made and prepared. Bot to appoint
by writs ships lo ■ b« made, and by their direc-
tions appoint the slieriSs to levy money to pay
olf some of tlte ships, iras nerer yet done, cbis
being a precedent of tbe first impreaaion. The
taw did always account the parliament able to
provide and to ^re sufficient aid, and most lit
to consult df arduii rerni ; and there is a con-
sent of and grant of the couunons to wiiat is
done, they are actors in it.
By tlie old law of Alfred, patliaments were
to be held twice ayear^ and by express sta-
tute made 4 Edw. 3, 14, an express law was
made, that every year a parliamint should be
beld, especially if need required. And by ano-
ther statute, for atoiding uf gitievances that
daily happened, a parliament should b« held
once a year. Then it is to be conceired, a
parliament may ^e called, and things may be
charged that way. — And for tlie objection, ibat
ft pariiaraent ii not Uie speediest way to pre-
' vent the danger; the imagination of man can-
not invent a danger, - but course may b« taken
for deftnce, till « paHiomeot be had. So, for
my part, IboUtliii point of nee j,
ger, camlot be faeld a aiificteiit ground for tl«
The nnt thiui; is this; yea, biu thn b
maintained by prerognciie'uia royal poner. I
say for tliat, hy my uatb I am butind ta msio-
tain alt the true prerogatives a( the biogi sad
we that are scrvancs tu tbe kin^ must laaiataia
his prerogatives, aud, to the b«st of our skill,
not suffer them to be diminiohed. But I boU
there is no such prerogative in this kind.
I'he prerogative is, tliat which the l*w pce-
aumelh, ' Tkuit tbe king can di> nu wrofif .'aad
■0 it is in BractoD, ' Rex potest facerc qiud ds
'yure potest fncerr.' 11 Uep. Magdaten-C4-
lege Case, 346. Plonden's CoiaiBcnt. Tbe
king con do no wrong, nor any act (o wm^
the subject. Bractou, ■ Hoc uon pote« j^sk
' i^uod uno potest agere juste.' JThercfbreif
this charge be against tbe law, so mocli to tbe
prejudice of the subjects, as I conceive it to b^
tbe king will never do it ; for it is done by mis'
information that it hath beoiusaallj done, ami
may b« justly done, il £dw. S, a pMail k
made, which -is a wrong to (be subject: the
king, dejure regit, ou^itto revoke tbe patenl;
tiir the law bath thnt honourablecoaceit of tbe
king, < That he can do no wrong.' A kii^
therefore, to hare a royal power or prcrogatiac
'- do that by his writs, to command anj ibiag
be done that it against the eipresi lavs of
the kingdom, to the infringing of the lib
of his subjects, is not adoutted by tbe law : iba
royal power is to be taken away ; for as it is be-
fore said by Fort escue, he can change do law, oar
charge his people, but by commou (»iDsenl ib pM-
liainent. So, for my part, I bold tbnt ibia sane
charge upon the subjects, by his royal antbomr.
The king, we know, is a. taml just and
Eious king, thnt he will do nothing against his
iiTs; if he did know it to be BgaiD^t law, be
would never desire it. When a judge of tbe
land was called in question, in ifueen EJiia>
beth's time, about denying some hian, d«li*er-
ing his opinion against the same, he said, it was
against liis oath, and against tlie law, to adviw
her majesty to it. With whiob she nsted *e-
tis6ed. If the judges say, by law the king may
do this, he may do it : if tbey say no, bat by
act of parliament, he will never do it. — Bat it
is said, the king taketh the couiw, ' mote uio-
■ jorom.' There is not any precedent especially
maintained, by any judicial record, that war-
ranteth this course : and if there were any pi«-
cedents, we are to judge according to tbe law,
and not according to precedents; not to judge
what hath been Hone, bat what of right hatb
been don*. 11 Rep. Magdalen CuHege Case,
though there be manv precedents, that maio-
tnineth not a right ; tlie question is buII, Wt»
tber a right or not f
But admit timi precedents could make it H
be lawful, yet I hold there is not any one pre-
cedent Jo maintain this case.
For, first, I say there is no one piecedcBt
Koetb lo inlaixl oouBMi ail over Eo^aad, bri*M
1137] STATE TRIA15, l« Charles I.
now. I ssy, co mriiiiine couDliei to iirepare,
ta m; brother Berkley cont'eued, that he knew
none Tor an; iolarKl cuuntics, but 1 Ric. 3, 11,
5^, their wri[s went out to divers iolaad towm,
but not to counties, to make ships; and besides
Iheite, were not any lo intnnd counties. — To this
I say, ibose wriis that neat out at I hat lime
were done by conveyance in pnrliamenti for
an order was made in parliament, that ait*tliat
had any cbarten, the untieot cities, borough;,
Riid towns, that bad any uliarteis of liberties,
■liquid there be exnmined; and appoints how,
and by whom ; and have their liberties con-
firmed without line, if tbey would produce ships
for the defence of (he kirgdom. But yet in
this record not one inland county or maritime
county is cbatf^ed, nor no inland town, but
those tliat would have their liberties conlirnied.
Now to look upon the precedents of king
John's tinie, 6 Joli. 9 Joli. 14 Joh. &c. here be
tbe six precedents in court; and I linve looked
intoevery precedent on iheking'sside, to satisfy
myself; and all tiiosd precedents are only [or
■rresting of ships, that they sliould not go forth
of the realo); and. 15 Juhan. all ships to be
ready as the king shall hare occasion. — Then
we come to Hen. 3d's time: 13 Ueu. 3, m. 5,
13, fic. there are sii of theie records, I have
read them all; they are no more, but only to
port-towns, to arresi ships, and the rest to have
men at arms, iu readiness upon the sea-coaBts,
and chat but for forty days.
Tlien for the precedents of Edw. J.'s time, n!l
of them beini enaniined, not nil]' uneof thrm go
to the counties. 13 Kd. 1, 7T, divers ships urc
appointed to be made, but it is ad mmptum
regit, and only oniu sen-towns; tbe record
■hews, that by the barons of the exchequer
they have an allowance for it. 33 Ed. 1, m. 5,
tunie rull, a writ to ilie sheriff of Norfolk,
to compel them lo maintain iheir sea-coasts.
14 Ed. 1, a writ ' nd coiigregandas centum
* naves paratas,' and amied men to be pui in
ihem. So to command in ikLt kind the king
may, and we must nbey ; he commn rids ships
ready made, uot to make tbcm. Afrerwards,
14 Ed. 1, rot. 17, several writs lo the nrclibi-
sbops and bishops, In attend witli their srma in
readiness, to maintain the coasts. 14 Kd. 1,
rot. 78, a writ to the comity nf Berks, a thing
much stood on; it is only for matter of nrrsv,
if it be well looked into, and no matter of
n I heir proper
can deny but that every man in his proper
county is lo go to defend the kinndom. And
also for having of all ships of above 40 tons in
readiness : but to make new ones, in any inland
county, is not warranted by anv precedeni, that
I can see ; though I have looked over all the
records that hnvc iieen brought nnto me; no.
For the precedents of Ed. 2's time, 0 Ed. 3,
Sec. to put them all together, ih^y are enly to
congregate ships to be in readineu, but not to
make new ship*. — To come tu Ed. S'^time. 7
YOl. III.
1637.— m Oe Cau qf Ship-Monty. [IISS
Ed. 3, m. 9, commaud is to assist tbe admind
with their ships, as occaaion ,^all require, lu
Ed. 3, II, a prrcrpt to piirt-towns only, to
bring their ships to Portsilioutii, fut 13 weeks,
furnished with victuals, &G. 9 Ed. 3, 10, nut to
depart without licence. 10 Ed. 3, K Ed. 3,
Hoi. Aim. writs only Co port-towns, * ad custo-
' diend' mare.' 19 Ed. 3, m. 19, a command
to Henry Huury, ((c. 'ad congregand. ho-
' mines,' and lo attend on tbe sen-causi>'. But
these were the causrs of making the law, 14
Ed. 3, (hat tliere should be no lurther chaise
bid on tbe subject : so that all before that sta-
tute do not prove our Case, la Ed. 3, ■ cus-
tody of the ports commanded, and warmiits to
arrest ships. 16 Ed. 3, commaud lo the earl
uf Dover, &c. to prepare ships against an
enemy that intends to come tu subvert tho
kingdom, and lo get up beacims ; which is ths
first origiiinl of beacons tiiat I observe. Ail
thtse precedeois in Ed. S's (inie, were but lo
keep men end ships in teadineiS, und to briog
them to the sea-coasts. 4*S Kd. 3, m. 3, that
tbe French made great preparation, wliereupoa
tbey ate commanded all lo array, bulb clergy
and laity, to guard the sea-cousts. And m
those times, when (here was mure likeliriood of'
danger than now, no wilts came out ihen, but
only to array ineo, and keep them in readiness.
50 El). 3, to array men in Norfolk to defend
the coasts. 99 Ed. 3, command )o the bishop
of Durham, and into Cumberland and Nor-
thuicbcrlnnd, to have their men in readiness,
A number of these precedents in that king'*
reign. — Ear Itich. 'i't time, it dnlli not appear
by any one record there is any thing for ships,
but only for the custody of tlie sea. — And Jbr
Hen. 4, Ilea. 5, Hen. 6's time Until S Eliz.
iLkv are ull concerning luatiers of arms, not to
make ships. And when ibc rebellion m tbe
North was in the queen's liuie,then by wriu
men were cominanded to be in readihess, for
defence of (be kingdom.
The next thing we come to is ibe writ itself.
For my part, I hold it to be illegal; mark the'
recital di^the writ, it is no mure but < quod da-
' turn est nobis iutelligi,' &c. not a plain afErm-
aiioii, as apparency of it. Tlien ibe mntiies
nre, because the pirates do iiifCKt the sens :
Such motives at never were in ^ny writ before.
All former writs werenot to providegreat navies
in respect of piratrs; there is nn such greet dan<
geroflhem. 15 Ed. 1, it is there let down,
when pirates iiileslcil the (eus. they took order
that titere shonid be only 10 ships to icour the
coasts. 16 Ed 3, &c. Command that men '
should be arrayed, lest tire enemy should in-
vade tbe kingdom ; but no mention made of pi>
rotcsjforibey vrill be removed with a/ew ships,
Alarfc the times when great pirates were nptin
the sea, they wnuld he [ilad losoulk away w lien
the king's navy came lowaids them. Ndw that
this should bring the king's navy tii sea, it
against the law of t'lt l.iud, and nre not mo-
lives sufficient to induce a chari;e of this. kind.
Secondly, Tlie very commands of the writ
itselfare unlawful, in respact of the incoDveas-
4l>
1139] STATETWAI£,\SCh.I. iGiT.—neKp^i^a!it>iJot,iinaiHpdai,aq. [IIW
encea to an inland count; ; nbereas there wai
never UTiy inland county cliar^e:! in Chat kind
before, ks caaat-towniihat have been hereto-
fore cliar)!^d nitli suldien, end b.id none, nere
discharged. When Budmin in Cnmwal wan
charged Vith fimliug of a sliip, they shewed
tJiey neTir lisd sliip nor cnartneti there, and
lliat divers of tbetn were imprisoned for DM
findini; such a ihip ; vrhereup(
tliereof: .
: the t
: And becauBv it whs fuund (1i
^ rere discharged. But Mr.
Solicitor answered, thi< was done b; the admi-
ral, beyond his commiisiun ; but 13 Kd. 3, the
tame year, there was a writ awarded to Chiches-
ter in (he county DrSuMex,tofindB ship, and
tbey complained tliEy had not any -ihips used to
and thereupon tlfey were discharned, upon a
writ out of ihe Chancery ; :So I say, inland coun-
ties that are not wont to hnve ships, the law
doth not appoint them to do that which they
cannot do, nor will not expect from them that
which is impnssible.
The pursuance of this writ is agninst taw;
It appoints them to provide a ship, hire men,
and provide vicluals and wages lor them, 96
weeks, &c. I say, this is against law plainly,
BndA)(aiosc divers statutes, and no law doth
warrant it ; for soldiers, which are the king's
•errauls, ought to have their pay from the king,
the general rendezvous. IS Johan, m. S, ships
C'lmmanded to be at the ports upon the king's
pay. Tenants by knights sertice, after forty
days, were to he at the king's charge. IT Ed.
Ij.ieErt. 3, iiappeareth there, the king, upon
the invasion of the Scots, many ineii bci[jg lost,
appointed soldiers, and their wages paid, and
what to Durham, and what to Newcastle, &c.
31 Ed. 1, in the Eicbequer, writs uent oi.t to
levy men to resist the Scoth, and they would not
itir without their wages. 16 Ed. 3, (o p.iy
soldiers wages. S Ed. 3, rot, 16, there it is set
down in parliament what soldiers have recrived
for their wages. 36 slat. IB Ed, 3, cap. 7, sol-
diers are not to go out of their coirntics without
pay. 10 Ed. 3, the men of Bucts stood upon
It, and would not go out of their county to the
<»asts of Southaraptoa wiihout wages. Knt
Aim. 12 Ed. 3, m. 12. A -writ to comiN:! nil
men to make munition for ships, for tWe ton n ;
•nd thereupon H. and B. they were com-
tnanded lu maintain llie men of the same
town. Claus. 13 Ed. 3, m. 14, men of arms
for the defence of the sea-consis compliuned
ibeir wages were not pnid then* ; ordered, the
triwn from whence they came fhould pay them.
The statute of 11 H. 7, en;.. 1, provides, that
soldiers lliat go out of tlieir own counties to
attend the king in his war, shnll tinve tlieir
wages from the time they gn from tlieir Lousei,
to be |Mid by ihe king's onn ofliccra.
I hold that this assessment is not Inivful and
allowable ; then if the assessment thus made
falls to the ground, the power to the sheriff to
Msess doth ; and he may do it as he lists, put
nora upoa one tfaM another, therdbre an as-
in that kind is nin legal. Then ibe
Si rehelles fuerint, &C.' to hqprisoa
them, tlieu to give power of imprisonment to
the shenlf: Clauses hive been in former writs,
in cases of arrays, to distrain, if ihcj vrfuse to
pay ; never in ca^ of levying money, to impri-
son for it ; it is clearly against Magna Cbam
to he imprisoned, unless he be indicted, or fay
due process of law.
The iieit thing is the last clause of the wHi,
gathered ^an shall be nredfol, to
now upon the record, ami by this record it dotk
not appear that n ship is made. It apprafl
Mr. Hampden was assessed 30t. towanla the
making ol a ship. It is said. If the mooey he
paid, others can provide ships. This is not ac-
cording tn law, to command a ship of war of
450 tons, and to turii it into money ; for if a
ship were made by a county, the county sbonU
have it again, bat in this case it is otherwise;
this Scir' Fac' is brought to have tlie mooey.
For the Certiorari, it b directed to a sberif
oot of oBice ' que del residue tie ceo,' aod
ought not so to be, for all writs are ilim^cd to
the present sheriff; so (or the uld sberifii te
shew c;iuse what they have done, anil the new
sherifTs to make th°ir return, he is Ibe iuiairdh
ate officer of the court. Admit the Sat' Fac*
should go forth, it would do something, < one-
' rare, ike' to whom, or how, nothing here;
but ' Scir* Fac' quare onerari non debet ;' bat
to whom ' onerari,' it dolh not appear.
Besides, il'thc sheriff levy money in thnt Itiml
and bestow it on a ship, it is well. ITdMso
bestowed, then those that received tbe nioney we
nccountahle to those of whom they had it. In
Ed. 3'stime, soldiers received money to go 10
service in war, yet slRid at home, but wnv
compelled to repay it to the county where they
received their wages, .llso two high constables
having received money for soldiers, were indict-
ed lor not employing it accordingly, and ai-
judged to restore it to the county where tber
received it, and to find sureties. So it dol^
not appear that this ship was buildeil, there it
no prepiirntion lor a ship ; the sum assessed ii
not legal ; then the writ is not. legal, be-
(.nnsG it varieth from all the precedents iot-
merly ; it vnrielli in the time, of ?6 week^
before that but for IS wcels; in the muintr,
for sotdiurs naces V> inland counties, which was
never before. I say, it varieth frrtui all tHe
precedents in that .kind. And so I hulrf this
puniculiir writ is not sufficient, nor wnrrilnted
by the Inw, and that Judgment in this caje
ought to l>e given for Mr, Anmpden.
The AntiuuixT of Sir GEORGE CROOKE,
kni);ht, one of the Justices of his Majesty 't
Court of King's-Besch at Westniimer, in
-the great Case of Ship-Mokkt, aa it wm
presented to the Kite's Majesty.
The Case is this upon the Record.— Tbe
king by writ ander tbe great sea), tlated 4 Ai^
lUrj, STATTETEIALS, ISCbahlesI.
anno 11 of hii reign, direcled to tlJC sheriff qf
the counter uf Bucks, and lo all the mni in ibai
county, commandech theia in these wurds :
Motives of this Writ, which are five.—' Quia
' datum est nahi« intelligi, quo4 praidones qui-
' dam piniti ac marii grassaiores cam iiuDiiuis
* Christiaiii bostes Maliumilaui qu.-ini alii coo-
' KCrgati naves et bona ec ineccimonia noti bo-
' lum sitbdiwrum Doscraruni, Trrum etiam mh-
' ditorum amicoruiQ aotlrurum in mari quod
' per geiitem Anj^licanaoi ab olim defend! con-
' stievii oelarie diripientes et spoliantes et od li-
'* bilum suum doportavere hominesque in eis-
* dem in captivitat' miseminaDl mancipaDtea.
' 9. Cumqae ipios conspicimus iiavi^iuin in
* dies pieparantes ad mercatores nostros ulte-
' rius inolfstand' ct ad regniim cravaiid' nisi
' citius remediuin appoiiHtur «oruaique conatui
* virilius obfietur. 3. Consideratis etiam peii*
' ciilis qnc uudique hii guerriiiis teuiporibus itn-
' miiient, ita quud nobi* el subditi* noitris de-
'' fensiouem regni omul feiciualiane qua poCeri-
' niua acceierare conrenit. •!■ Nos voleutes
* defcns-one rcgni, tuitioue maris, secuiitate
' subditoruin nostrorum salva cnnductioae na-
' vium et inVrchandizarum ad rrgn' noatrum
' An^ii venieut' ct de eodcm regpo ad partes
' prat'idcre ; cum nns et progenitores nostri re-
* ncs Anglis doiuini maris prxdicti semper hac-
' tonus Gxtl^«^unt, et ptunmum nns isderet si
* honor iste regius nostris teniporibus depereat
■ aut in aliquu minuotur. 5. Cumque onus
' istud defensioois quod omnes tangit per omnes
* debet ■ up porta riprout per legem et coDsuelu-
* dinetD regui Anjrljs fieri, coDiuevil.
Cbar|;es of this Writ, wtiich are three. —
' Vobis prsfaC' vicecom' ballir' burieniibut
' inajoributque prnbis hominib' et oniQib' aliis,
* quibutcuuqua supra mentiuDat' in bargis vil-
' lis, villatin, haniletlis et locia supradicQa eor-
* unique membris. 1. In &deet legianiia ves-
< Ira quibis nobis tenemini. i. Et sicut nos et
' honorent nostrum diligitia. 3. Nee non sub
' rorisFactur' omnium qua: nobis forisfitcere pO'
* teritis finniter injungend' mandamus.
Commands of the Writ, wliich are five.— ■ 1.
- * Quod unnm navem de guerra, portagii 450
* doliorum. S. Cum bumSib' tam magisiris
< peritit quain marinariis valeotbribua et ex-
'' peiiis, centum et octoginta ad minus. 3. Ac
< torm«ntia tam majoribus quam Htinohbus pul-
* veie tormentario ac hasiis et telis aliitque ar-
' maturis p?o bello sufiicientibus. 4. £t cum
* duplici esiiippatnento, nee non victualibus m-
* que ad ptimum diem Martii jam proiim' se-
' quen' ad tot bomines competen'. 5. Et
< abinde in vigioti et sex septimanas ad custagia
' veHtra, tam in victoalibus quam hominum sa-
' lariis et aliis ad guerram Dtcesaariia per tem-
' pus iilud super defeDsioofm maris in obsdiaio
' nostro, in comitiva custodis maris, cui custo-
^ diam maris note prtedict' primum diem Martii
' cominitiemui et prout ipse ex parte nostra
' dictaverit moratur paran, et ad poitum de
' Portsmouth circa decimumpriiaiimdicmMni-
' tii duci fociai. Ita <pad lint ib' iv cod' die
Ifi37.— ill ike Case t^ Siip-Monci: [1142
ad ultimum ad proGcl^cend' ex iiida cum ns-
vibus noitm ct navibus aliorum subditorum
I, Pro t
^
' defensione vestrum et vestror. 3. Repul-
' sioiieque et debtllfllione quorumcunq' merca-
' tores n'islru9 et alios suliditua et (ideles prai-
' diet' io dominia nnstrs ex causa mercBturv ae
' divertrntet vel ab iode ad proprium declinan*
* tes super mare gravare seu muleitore satageu-
CUuse* of the Asses*. — * i, As^i^novimus
' Hulem le priefat' vicecom' Bucks ad assidend'
' omn' bom' in vilUs de Agmondcsliom, Wei>-
' dover et Marlon Magna.et in omoibua alii*
' villis villnt' bur);is bnnScttis et aliis locis ui
' cum' Bucks pnrd' et lerna lentea in iisd' na-
' vera vel puriim navis prad' non bnbentes vel
' iu ead' non (leien'ienics ad cunlribuend' ex-
' pentis circa proiiwoncm prffiniissornni neces-
' sjf'. 2. Et saper" praid' vill' burg' bamleit'
' et locur' membris eormnq' sic ut pnefctlur ad
' Bssideiid' et poneud'vii.quemlib'eorumjuita
' siBtuin suum el facultaies suas. 3. Kt por-
' lioucB super ipKia ussesiat' per districtinnes
' aliuEve inodui debitos levand'. 4. Et coUec-
■ trires in hac parte nominsnd' et coDStituend'.
' 5. Ac omnes eos quos rebellES et contrarios
* iuveneris.in pr^niissis in cnriere mancipand'
' in eod' moratur' quousque pro eor" delifacra-
' tiune ulteriua duterimus ordioand'.'
Preclosc of the Writ fwibe Ease of [be Sub-
ject.— ' Et u I terius mandamus quod circa pra!-
' missa diligentrr intenduiis et fociatis et exe-
' quemini cum efiiectu sub periculuincumbcnie,
' Vulumus autem quod non colore prxd' mnn-
' dati nostri. 1. Plus de iisd' huminibua levari
' fac' i quam ad prlmi--B' sufficien' ad expeusai
' necessar'. 3. Autquod quistuim qui pecu-
' niam de contribuentibus lid prsd' custag' la-
' ciend' levoverit ead' vel partem inde penes se
' delineal. 3. Vel oA alios u>U£ quovis quzsi-
' to colore appropriarc ptiE&nmiit. 4. Volenle*
' quod si plusquamsufliciitcollfctum fueriihoc
' inter solientes pro rotu portiunis ip^is con-
' tingen' eisolvatur.'
By virtue pf ibis Writ, Mr. Hampden is as-
sessed Co !0l. for his lands in Stoslte Maade-
vile in that countj, wbicli, not being paid, >s
certified amongst othera into tbe Chaucer;,
upon a «rit of Certiorari, dated 0 Mar. 13 Cor.
by a schedule thereunto annexed. And by a
writof Mittimus, tested Mar. 13 Car. this writ
of 4 Aug. 11 Car. and the writ of Oertiorari,
and the schedule annexed, is lent into the Ex-
chequer, with a co^nmand there to do, fur iha
i^vfing of sums so assessed and unpaid, 'prout
' de jure et secundum legem regiii nostn An-
' glis fuerit faciend' ;' whereupon a Sci' Fa'
issued out'Of the Exchequer, reciting the aaid
writ, to warn Mr. Hampden amoi^t others, to
tbew cause. why be should not be charged with
this money. Uiran this he biding summoned,
appeared, and demandeth the bearing of tliose
nrits and schedule, which being read unto bim,
thereupon he demurrelh id law. And whether
judgment upon this whole Accord be to be given
1143] STATE TRIALS, 13 Cii.l. i6'S7.-~neKmgasainuJolMHampdM,aq. (lltt
■gaiatC Johii Hampilen, that be i^ W be ch*rg.
«a or no, that is tlie ijuettion; tot lie a tlic
(fuljr purt; in tJiif cuse. And Uicre n no cause
nil} any man slioiiM taj that the question »,
Wbether judnment tbould be Riven lor tlie
Ving, or (lie di'teadant ? fur as this caie b, the
king is no party lo tlie Record, bm only it is h
judicial pruccsi out of the E:ichequer, grouud-
ed upon tlie tbrmer lleonni, Itir the detendont
to shew cuuse ivhy lie should not be charged :
which hnth been »try elaLMrnteiy arBoed by the
defendnnt's counsft, nlio demurred, that he
should nut be charged ; and by it:e Line's cuun-
»el, very learnedly and elaborately argued, that
he should bo charge.!.
This case is a case qT E'^sC "tight, and the
greatest cnsc ot' ivci^lit thut ever we read, ar-
gucil byjudi^es in tliii |)luce ; and thereforo,
■[IJourned intottiis place tor advice of all the
juil|;es : For of ihi ir «id« it is allcdKCil, Tliat it
CDiicemetli the king in his preroeative and
power royal ;' und on the other side, Tliat it
concemetli all the king's lubj^ctn in their liber~
ties, their persons, buJ their estiilre ; tor which
it hath made some of us to wish am! mme
among iiurselves, that it miglit have been by his
majesty's favour, heard and deiermioed in ano-
ther place by his majesty, and liisicreat council
of his l«Blni, whi-re all convenience and incon-
Teni^nce mi^iit have bei-n considered of, pro-
Tided (or, and prcvcnttd tor pre'^nt aod future
limes, .ind nut lo be ari;ued only by us, who are
■ccuunted his majesty's counsel at law ; where-
in if any thing be done amiw, the fault must
light upon us, as ipis advising the king (herein.
But lecing it hath pleased his iimjesty, ihni the
same shimld he argued and dettTinincd in this
place, whose pleasure we IDU^l obev, 1 must
give my bett advice upon my oath to tiie best of
my skill ; wherein I hipe nol to trench upoi
bound h
which V
t all
ir oaths, to tite best of
maintain, and not to suffer tlieni to be dimi-
nished; nor upon his royal power; but truly
to deliver what I conceive the law to be, con-
cerning the case in quoticm.
Wherein I must confess 1 liave been much
distracted, having baarctso learned si^nment:
on both sides at the bar, and so m^ny records
■nd precedents cited on either side ; but they
did not, so much move me, for tlie iiounsel have
on either side proposed such reaiotu, as ihej
thout^ht convenient fur the maintaining of
tlieii' opinions, and perluips with a prejudicate
opinion ; as I mtself by my own e»peri«ice
when 1 "as at the bar, have ai^ued confidently,
and ai I then thought the laws to 'be on that
Jide for whom I aiwiedL But after being on
ihe bench, and indigently weigliin); all rea-
sons and authoril^s, have been of a contrary
opinion; and so the lnw hath Wen adjudgeil
conifBrj to tliaio|iHiion which I iirbt confidently
But ihnt which bath moved mc most, and
' miikah medi»<ro.t mv own judgment in (his
iC!ise is, that n^y brothers that liiivo arguad
liiforc mc, who Imve imjued upon their oaths,
and I presume have seen the records and pit-
cedents cited on either side, have all aijonl
»ay ; witb whose opinions I sb»iild nil- j
lingly have coDCuired, if I could hate satis&til
mj own judgment witb their restons; bat not
being saiMed, I have lenmed chat I must not i
come with a multitude against mine ova can- '
science, for 1 must stand or fall mth my mm
master. And therefore I shall shew reason,
Vid leave mytelf to the ind^ment of my Inth
and others my brethren. And whatsoever ifaill |
be adjudged I must submit unto, and so do wiili
oil others, -and do now declare oiy opiniM
to be, that as this case is, judgment oogbl la
be given for the delendant. My reasons uil
ground' that I shalbiusist apon ate these:
1. Ihat the command by this writ or4Ai^
11 Car. lotto haveshipsat tlie chnrgeaflfac
inliahitnnis of the cnuniy beins the iirouiid of
this suit, and isiase of this cbai^, is ille^ wl
cniitrsry to the common law«, not lien^ 1>; ,
nothcrity of parliament. 2. That if at tl*
common Inns it had been lawful, yet now its
writ is illegal, being expressly contrary lodiim
statutes prohibiting e. general ch:-tve to be M
upon the commons in general, without consmt
in parliament. 3. That it is not to be miit-
tained by any prerogative or power TOjsl.mt
allegation of necessity or danger. *. Admit- ,
ting it "were legal to lay such a charge dj""
marititae ports, yet to charge any ioi»nd coantj,
as the connty of Bucks is, wiih making ibipi,
■nd furnishing ibem with masters, mnnctn
and soldiers at their charge, which ate far re-
mote from the seas, is illeizal, and not wansDi-
ed by any former precedent, ."i. I shall ea-
rn ioe the prectdeno anil records cited to «r-
rant this writ, which have been alt tl* pnocipu
grounds of the arguments to roaintsin tw
same. And 1 conceive thereis thecbiefpoiw
work being in my notes, but I forgot it.
■ Hut before I proceed to the argum"', '
desire to remove two difficulties: Firit, Thil,
by the demurrer the danger of the liiifilroii a
confessed, and so it is to be allowed for s c«e
of necessity. To this I answer, That the *-
murrer confeiseth, not matters in i«ct, .*»
where the matter is legally set down; bat US
be not a legal proceeding, then the deioomrH
no confessing of the niatier of fact. Toii>|^
pearelh in the book-case, 5 Hen, 7, fc'-^""'
Coke lib. .1, fol. 96, in Burton's cise, TW*
demurrer is no confessing of matwrso', "V*
but v/here the matter precedent is sufta'"^ .
pleaded or laid down ; and so it » held m "^
The Second difficulty is. Thai this o« « *
resolved by aU our opinions under "i"- ""^
that this wrItwBs'legal ; which wbs mucli pr«^
ed by Mr. Solicitor. To this I aniwer, i"
it is true that I have set down my opio
under my hand unto two esses, to tie
voluntarily in Dec. 1C.35, which -" "'f'f^i,
• am of opinion that nhere ihe Rood «™ '^'^j
1U5] STATE TRIALS, 13 Charles I. 1637.-
' defence ought to be borne by all in general,'
This I hold lo be agi eealile lo latr and reason ;
this opinion 1 do still <uid shall always mnin*
tnin; for where ihc kingdom ii in itaiiger, the
kluj; mav (ommand every persnn of his king-
dom witn bU bii force to come and defend it nt '
all times and.io alt placei ufbb kingdom where I
. lie pleaseth ; and ihc kii^ is the sole judge of
the danger, and of war and pence ; nnd if any
do not perfunn his commands iberein, lie is
fiaeable and punishable in a deep manner.
The secoi>d was in Feb. I63S, -which is thus,
' That when the eund and safety of the kine-
' dam iu general is concerned, and the wbore
' kingdom in daijger, im majeaiy may by writ
' under the great seal of England cominand all
' his subjects uf (liis kingdom nt their clmrges
* to provide nnd furnish such number of slii^s
''with men^ victual 1 and am munition, mid lor
' such time as his maieaty shall think Rt, fnr the
' deicnce and soieguard uf ihe kingdom from
' such danger. And that bii jnajesly may com-
■ pel llie doing thereof, in case' of refusal nnd
* refractoriness. And ihat in this case hit ma-
•jestyia sole judge ofil;!: ilrmver, and when nnd
'how the same is to br preveoLed and avnided.'
To (his opini'in, 1 cuntess, 1 then nitb ihe
rest of th« judges subtcribed my band; but t
then dissented to that opinioD, and then signi-
fied my opititon to be, that sucli a charge could
not be laid by any such writ, but by parliii-
iDprit ; and so absolutely in that point une
other did agree with me, and diisentrd from
tbat opinion ; and four oilierg, in some other
girticujars, from that which wns subsrrit'ed.
ut the greater part seeming absolutely to le
resolved upon that opinion, soma of them
affirming that they liad seen divers reconVs and
precedents of such writs, SBtislying ihcni to be
of that judgment; I was pressed to subscribe
witli them, for thai the major paitmusl involve
tlie rest, as it was said lo be uiual in cases of
difference, and tor that the lesser number must
submit to the major, although they varied in
opinion ; as it is in our court, if three judges
agree in opinion ajtainsinne, or Coo where there
are five judges, judgment is to-be entered per
turiam, if 'the major part agree, and the other
are to submit to it : and in co^es of conference,
and certiiicate of their opinions, if the greater
part did agree and subscribe, the rest were to
submit their opinions, Andibisbymoieunlient
judges than myself "as affirmed to be the con-
tiniial practice : And chit it was not ht, especi-
ally in a case of this nature so much concerning
tbe lervice of the kini;, tor some to subscribe,
and some to forbear ilieir suhfCriptions: And
tbat although we did suh>cribe, it did ii"t bind
US] but that in point of judgment, if tbe case
came in question judicially bvlbre us, weehould
gire our judgments as we should see cause after
tbe armaments on both sides, and we were hot
bound by this sudden resolution.
Hereupon I consented to subscribe; but I
then said, ihatin tbe mean time the king might
bo miiintanned, by our certificate under our
hand^ conceiving m all to agre« together and
in the Case.<jf Shtp-IUtmq. [1140
to j;ive him this advice under our hands, and
not know there was any dis-ne^cntcd or was
doubtful : but it was. then said, the king should
be truly iiilurmed thereof; and thereupon ve
that dis-assent, did subscribe our hands with
sucli protestations as aforesaid, only for con-
tbmiily, althuujh cunttary lo the opinion 1 then
conceited.
Bat this being before arguments hfard on
either side, or any precedents seen, I hold that
none is bound by ib^t npinino. And if I had
been of that opinion absolntely, bow having
beard all the a'gnnients on bath sides, and the
reasons of the king's counsel to main'lain thia
writ, and why the defendant is to be charged ;
and the arjiuments of the defendant's counsel
against tlie wrii, and tlirir reasons why the de-
fendant ihould not be chained to pay the money
Bsaesitd him ; and baring duly considered ot
records and precedents cited and shewed unto
me, especially those of tbe king's side, I am
now of an abhoiute opinion ibut this writ is ille-
gal, and declare my opinion to be contrary to
that which is subscribed by ua all. And if I
had been of ibe same opmion thai was tub-
scribed, yet upon better advisement being ablo-
lulety settled in my judgment and cinacience in
a contrary opinion, I think it nn shame tO de-
clare that I do retract that opinion, fur kuma-
num at trrnre, rather than td argue ai;ainsl my
own ciinscieiice. And ihe'etore nolle havine,
as 1 conceive, remove.i thi'Se diSciihics, I shall
proceed lo my argument, and Ghe" ihe rensoni
of my opinion, and leavo the same to my lords
and brothers. Not one precedent nor record
in am precedent time, thai huih hern produced
or shewed unto me, that duth maintain any
writ, tu lay kuch a charge upon any county in-
land ur maritime.
I have examined this particular writ, and the
several parts thereof; and do conceive it is il-
legal, and not suSicicnt lu ground this chai^
upon the defi'iidaut.
1. Tbe motives of this writ are not sufficifU
to cause such-a wnt to be sent forth. 8. The
command oF the writ to prepsre a ship at the
charge of the inhabitants, Hhicb mentions vic-
tuals and men, is against the cummon laws and
statutes of this kingdom. 3. That to In^.a
charge of finding vjctuals, and nages of soldien
and mariners, is illegal, and contrary to the
commnn laws and divers statutes. 4. The
power of assessment given to 'he sheriff alone,
and to distrain for this, is illegal, and not war-
ranted by any precedent. 5. Thepowerof inl-
prisoning is ilTegnt, and contrary to divers sta-
tutes, a<id not warranted by (lie precedents.
6. 'Ihat thftpreiloscof the writ, and the preo-
tire of it, is contrary lo itself, and oppoiilum in
objetta. 1. If tliis writ were l^al, yet the man.
ner of the assessment by tbe sherilf as it is cer-
tified, n not warranted by this writ; conse-
quently the sum cannot be demanded ofthe de-
fendani by virtue of ihisvrrit. 8. ThattbeCer-
liorari and Sci' Fac' issued not legally, and con-
Wiuencly no judgment can be given agaiuM tbe
detendaut tbmapoo,
1147] STATETRIAI^, ISCh.I. 1637.-
For the £r£l point, that thb n^it, 4 Au^. 11
Car. is against ibe cammoa law, my reaious are
1. Because this is the first nrit since the Can-
quesi chat went out to any inland county to pre-
pare a ship with men and ammuniiion, soi aught
appeoTeth by anj record that hath been tbewn.
And where the^e »ai nerer any precedent, by
the rule* of Mr. Littleton, fol. as, the law is
conceived not to nltow any such writ. Ao^ sir
£di*. CoUe in his Comment upon Liillelon, fol.
SI, sairii, That where there is no example, it is
a great intendment the laws will not bear it. —
So I conceive here, there nfrer having been a
precedent before of any such writ to theshenfFj
and inhabitants of a county, tn prepare a ship
nilh men sod ammunition upon any occasion
whatioerer, that it if against the commoa law
to award such a writ.
3. For that the commoo law of England set-
lleth a 'freedom in tlie subjects in respect of
tiieir persons, and givetfa them a true property
in liieu goods and estates; so that without ttieir
consent, or implicitly by aa ordinance which
they con lented unto by n common assent in par-
liainent, it cannot he taken from them, nor their
estates charged ; ami for this purpose tlio law
disCinguishcch between bondmen, whnte estates
are at their lords will and disposition, and free-
men, whose property none may invade, charge,
or unjustly take away but by their own free
consent, and therefore not warranted by law;
ivhich is proved by the$e aulhoritie*.
Coke in hii^ Itepons, lib. 8, fol. gs, in Fran-
cis' Case, sets down this rule, ' Quod oostrum
* est, line facto uu defectu nostro amitti, leu
* in alien' transferri non potest.'
Mr. Lambert, fol. 94, setteth down the laws
of England which were coniirmed hy William
the Cont^eror, bath these word^ : * Inter alia
' vofumns et concedimus, quod onuies monar-
' cha regn' sui prxd' habeant et teiieaot terras
* suus et possesiiones suas bene et in pace, libe-
' ras ab omni exaciiane injusta et >b oiuni tal-
> engatur prater
'Juste debitum.' Hereby it appears there is an
absolute freedom frum all taillage.
17 of king John, in Mat. Paris, fol. 2«, the
king doth grant and confirm unto his barons
and coin^nons, in'tr aC these liberties following:
* Nullum scutagium rel nuiilium ponamu) in
' r^no nostro nisi per commune concilium reg-
Apon them but ^y parliaiuent, fur the parlia-
ment was then called Commune Concilium.
That the law is so, appeareth by the treatise
written W Fortescue, who bad been Chief Jus-
tice of Ei:4[lDnd in king Henry 4's time, and
after ChuiiccUor of England, when he woU
the book, intituled, De Laudibua Legurn Anglic
fol. 36, cap, g, he saiih thus ; That du king of
England cannot alter nor chan;^ the laws of
England at his pleasure, for ''principatu rogali
' sed et politico ipse populo suo dominatai.' If
his power were loyal only, titeu he might chai^
the laws, ' Tallugio quoq; ct dUerii oners en
' impouore ip^ ioconsultis;' but adds, Itiai lbs
king of England ' sine sobditur' assensu legts
' mutare non potest, nee subjectniD populiua
' renitentem onerari impositionibus peregriois.'
And cap.a3, ful. 31, he compares the king and
suljecti 01 England to the head and budj oato-
ral : ' Ut non potest corpus phyiicum neno*
' suos [rommutare ueq; nicoibris suis ptoprias
' vires et propria sanguinis alimentu denepic
' sua, nee tex qui caput corporis politici muiaie
' potest l^es corporis iUius, nee ejusd' popsli
' substaocias proprie subtraher^ recUmantiboi
' eisaui invitis.' Thus be iii this place; botia
fi>l. 81, cap. 36, he seemelh to say, ' In lioc id-
' dividuo, rex Anglia; iieq; per se nee niiiiislras
' suos tallagtn, subKidin, aut qusevis anera alia
' imponit, leges suus, aut leges ear* muial, aat
' tius rogni sui i^i purliumento suo expresM>.'
Which nords seem so general, that la no caw
So it appeareth by the book case, 13 lien. 4,
fol. 14, That tlie grant of the kiug, whioh lend-
ctli to the charge and prejudice of bis j>ea|^ in
general, is not mood, unless it be by parliamenL
But it is agreed there, thut grants of lolb, of
fiirs, of pontage, pickage, murage, ferrying, or
such like, which are fui the profit, good, and
eaiie of the people, and profit of them that will
take heneiitihereuf, and not compulsory to any
to pay, but to tliem tliat wiU take the boiefii ;
and being very small and reasonable sums, the
law doth give allowance to tbem : but if they
were gre.ic sum), thnt tend to tiic charge of the
people, the law will judge them void.
Ihis appeareth in sir £d. Coke's Report^
lib. 5, fol. 63, in the Case of the CbamUcrlsiD
of London, that an ordinance made by the
common-council of London, where they have a
custom by their commoti-cuuncll to make rea-
sonable ordinances to bind all within the city,
concerning cloths to be brought to BlackweD-
hall, there to be viewed, mea^ired and searched,
before they were sold, and a penny upoa a
broad-cloth appointed for the officer IMl did
that service; that such a charge ' was reason*
able ; for that it was for the public benefit of
the city, and the commonwealth ; .and a pecu-
niary penally laid for not performance of that
ordinance was allowed.
Ibid. fol. 64, in Clark's cose it is resolved,
that an ordinance made by the assent of the
plaintiff himself, and other burgeues of tbt
town of St. Albans, tor a small tax upou the
inhabitants of the town, towards the erection of
thfl courts, and other neces.^arie*, fur iha tern
to be kept there, was allowed to be good, and
did bind the plaintiff, being by the plaintiff's
own dOoseot, and for the public good of the
Alto Coke, lib. 11, foL 86, io Darcie'a case
citetb this oat of FiU-Uer. Na. B. &I. 1S%
1149] CTATE TRIALS, 13 Charles I.
that every grantoflbe king hith this conaidsr-
■tion in It, tadt or mpress, ■ Qaod patria per
' donatioDM illim, maf>is lolito non oneretur.'
And as by grant the klae cannot charge hiE
people, Ml nekhar can tie lij writ lay an;^
charge upon his people, but by their conMnt,
or where thej have apparent benefit tberebj.
And thnt is the renson of the writ in the
Ret. lar. and Fite-Her. Na. B. 113. Where
by breach of the aea-walls any inundation is
oF the couniry, the king, who is paler patria,
ond taketh care for the good nnd lafety of
his people, sendeth ont his commissioa to
enfiuire bj vhuee default any auch breach
happened, and lo cause all that had lands or
conunons to be contributory to the making
ap of the sea-walls; and ihii is done by
B jury ; bnt this charge cannot he laid upon a
county or town in general, but upon parcicolar
men mat ha*e lou or benefit, or may hare loss
or benefit thereby : and thli ii done by inquiry
of a jury, berore the eherifit, or conmiHioners
appointed. So it is at this day, upon cnm-
missions of sewers, as appeareth by Coke, lib.
10, fbl. 143, in the case of the isle of Ely. The
tasation by the comniiBsionersof seners must
tie upon every particular man that halb or may
have Ion or benefit by such inundations, and
making up of the wnJIs ; and canoot be laid
tipon any remote parts, ivhieh are out of the
letel of such loss or benefit; and il must he
certain and particular upon persons : certain,-
iff retwin of lots or pront, and cannot be laid
in general upon a town ; but in those cases
tlicre is a particular loss or benefit, and in par-
ticnlar places, and but in petty chai^. And
then where the hw alloweth that nhich in rea-
son is to he done, that may be done without a
special statute : for, ' De minitnia non curat
'lex.' But in this case there is a ^neral
charie through the whole 1iint;dom, ithich the
hft doth not permit, without common consent
in parliament.
But it hath been alledged, that this charge
hath been imposed for the public safety, and
defence of the kingdom ; and may not this be
done when everyone hath advantage by it?
To thisi say, when imminent danger and causa
of defence is, there must be defence made bv
every man (when the king shall command)'Ritn
his penon : i^ such a case every man, as it is
said in the precedents, is bound per le tt svo
to defend the kingdom. And I think no man
Kill he unwise hut that he will exponrrenet laa
for the defenci? of the kingdom, when there is
danger; for otheri^ise, he is in danger to look
to te el mo ; but to lay a charge in general
npon ilie kingdom, either for ranking or pre-
paring of Alps, or money in lieu thereof, is not
to be done but by parliament, where tbechurge
js to be borne in general by all the sobjecls.
To prove further, thril no man may have his
goods taken from bim hut by his consent, ap-
peareth by a record, Mich. M Ed. 9, rot. 60,
ID the King'S'hench, in a writ of error brought
apoa ft judgment given at Durham; where in
kn action of trespass, by William Haybome,
1637.— in the Out (fSt^lUoMy. [1150
against William Keylowe, for entering hi*
house, and breaking his chest, and taking away
TO', in money, the defendant pleaded Not
Guilty; iha jury found a speeisi verdict, that
the Scots having entered tbe bishopric of Dur-
ham with an army, and making great burning
and spoilt, tbe commonalty of Durham met to-
gether at Durham, whereof the plaintiff was
one, and agreed to send some to compound
with tbe Scots for money to depart, and were
all Ewom to perform what composition should
be made, and to perform what ordinance they '
should make in that behalf: and thereupba
Ibey compounded with the Scots for 1,600
marks. But becauiie that was K be paid im-
mediately, they all consented that William
Keylowe the defendant, and others, ehoirid go
'-ilo every man's house, to search what ready
iDBcys were there, and to take it fijr the mak-
ig up' of that sum ; and that it should be re-
pard by the commonalty of Durham ; and
therenpon the defendant did enter into tb«
plaintiff's bouse, and did break open the chest,
and took the 70l. which was paid accordiogl*
towards [he fine. The Jury was demanded,
whether tbe plaintiff was present, and did con-
sent to the taking of the money? They said
no: whereupon the plaintiffhad judgmentto
recover the said TOi. and dpoiDges, for that
otherwise he had no iremedy for his money ;
and the defendant was committed in cxecation
for that sum. And thereupon the defendant,
Keylowe, brought a writ of error in the King's-
benifh, and assigned his error in point of jud^
menl ; and there the judgment was reversed,
and tbe reasons set down in the record wero,
fim, because the plaintiff, Heybome, bad his
sufficient remedy against the commonalty of
Durham for ' his money : secondly, because he
himself had agreed to this ordinance, and wa*
sworn to perform it ; and that tbe defendant
did nothing but what the plaintiff had assented
to by his oath, and therefore is accounted to do
notJiing but by his consent, and as servant
unto him, therefore he was therein no trei-
Biner ! and therefore the judgment given in
uriinm was reversed, because he had assented
to that ordinmce, though afterwards he wai
unwilling ; vet bovine once consented, hit
godds were lawfiiKj taken. Bj which it ap-
peareth, thnt if he had not iiarticularly con-
sented, such an ordinance Tvould not have been
good to bind him ; although this was in a case
of great danger, and for defence,
S Ric. 2, pars 1. The Parliament-Roll prov-
eth this directly ; although it be no act of par-
liament, yet the record is much to he regarded,
for it sheweth what the law was then conceived
to be : for Scroop, the lord chancellor, then
slicwed to alt lords and comioons assembled in
parliament, that all th£ lords and sages had
met together since the lost parliament, and
having conferred of the great danger the king-
dom was in, and how money miant be raised
in case of imminent danger, which could not
stay the delay of a parliament, and the king"*
coffers bad not lufficient therein ; the record
1151] &TATETRIALS, 13CH.I. 1637.— 71e£n^<%8McrJoJbiJffigf)d«,a;. [\W.
Object, Bat it i* nid, that toDDi|« ud
pouudage a aol aow ponied lo the kii^ >iid
fore the king i» eufbrced to these uuui^
i^ tbe; all uirMd, inoaeji sufficient could not
be had wilhnut lujing a charge upon tlie
moDaliy, wliicli, s\iy thev, canaot be
nithnat aparliuiumt; aud.the lurds tbeiuselves,
fo^tbe time, did lupplj the said ncccuity <■'
mone; iheji lent: which record pruvelh
recti}', thut tliis charge without an act of pai^
liaioent is ille^ul.
So upon tliesc reasons I conclude, that this
writ, cumpiilsorilji to charge the subjecii ^ainit
their mils, is not warrdoted b]i mij booli, and
therefore ill^al. — II' this nni should be al-
lowed, great inconveniences wuuld ensue,
which the law nill alwajs avoid, and hot pet^
mit any inconveniences.
1. If anj' sucli charge may be laid upon the
counties by writ, without assent in pailiaiDCDt,
then no man kuoweih what his charge may
be; for they may he charged as often ai iLe
king pleaseth, and with making of us niiuij
shipi, and of what burdens, and nith
chaq^e of -ammunition, men nod victunJ
■hall be Kt down. Wherein I doubt not.
ifihc law were so, the king being a very pious
aod a Just king, would use his power very mo-
derately; but judges in their judgmeutsareaol
to look to pteKnt times only, but also to all
future limes, uhat may follaw upon their
judgments, — That this inconvcniency may he,
appeareth by the Danegelt, lint appointed in
times of necessity, to redeem ihem .from the
cruelty of the Daiieii, which often changeil, and
still increased : for i. d. 991, when it began, '
was but 10,000'; in 991, it was increased
16,000'; and in 1003, it wu increaied
S4,000i; and in lOor, it was increased
36,000/ ; and in 1013, to 48,000i. So if this
nrit be well awarded, it may he at plei
what bounds it bhull. have. Also there
never but one single subsidy and two fifteenths
used to be granted in parliament, utiCil 31 Ellz.
and theii a duuble subsidy, and fuur 6fieetiths
were panted ; sir Waller Mi!dii"ij,tben Chan-
cellor of the Etcbequer, moving for it, and
saying ' his heart did quake to move it, not
' knowing the inconvenience that should grow
upon it;' be shewed great reasons tbr his
moving it, it beiug about the time of the Span-
ish invasion, and so it was granted. Afterwards,
35 Eliz. treble subsidies and litieenths mere
gnnted. And 43 Eliz. four subsidies and eight
fifteenths were granted ; nnd yet these were
not accounted grievous, neither would it have
been, if it had been ten Subsidies because in
parliament, and convenient times and means
appoioied for the levying of them. TonnBge
and poundage were granted to this cod in 13
Kich. S, and have contiuued. ever since by
Mveral graots until this king's time, wherein it
was nnh^pily questioned in parliament : but
the end tliere<)f wns, rliat the kings'might have
money in tbeir purses Against times of need, for
eitraordiiiniy occasions, especially for the de-
fonue of the realm, and guarding of the sea, as
it is especially declared by the alaiuto 1 Jac.
and Ibnner stntuics, nnd far oilier necessary
UMa, •■ the kin; plensvd.
Thuugb it be nut granted, yet I lliink il t
taken ; uiid I doubt uot but to the tame inuu,
and for the sanie purposes employed fiir wbicb
it was tirst granted ; which was, for the dtftnce
of the kin};dom, and guard of the sea. There-
fore in case of danger and necCMity, evennb-
ject, for the defence of the kingdom, is txaoi
lur * li^ancis debito,' as some reroidi u<.
and ' legianci« sute vinculo astrkti,' as albn
speak ; ■ se et sua totis viribuG ek^otesiile o-
' ponere,' &c. And in such ^ case, thetiif
may demand the persons of his subjecis, >sd
arrest tlietr ships to wait on his lo defend ibt
seas ; yet i< iih this also, when tbey go out of
tbeir counties, Ui be at the Line's chargesitil
to command the subject by wnt, to build 'In
ships, or to prepare ships at tbeir chiigcs, «
to lay a common charge on the subjects in |c-
nerol, for matter of defence, or avoidance of
danger, is not warisntablc by the iMimfK
3. Another inconvenience is, Thatitbldi
in the power of the sheriff to chisige any mu't
estate ut his pleasure, taxing some, aad^siiif
others, as his atfeclions lead him ; and ioidi-
timcB, hj colour thereof, levying more tbia ht
need, and eoriching himself; which powerlka
law never alloweih him, although it ^tn m
lessor matters : as to make an assesbment tc
breach of sea walls; but to do it by ajuiy.iiid
not by himself alone. So for these reasoio, 1
conclude, this writ is against the cobuddd la«,
and so ill^al. — I conceive, if the common b«
were doubtful in this, whether such aclotn
might be imposed by writ ; fct now it ia mue
clear by divers express statutes. That the Hh
is not to lay any chsr^ upon his subject^ bal
by their consent in parliament ; and that is, «}
many acts of pnrlianient in force, and not ft-
pealed :' and there is no doubt hut that liM
king by parliament, may bind them and tbtu
successors, every king by oath being bound la
perform the statutes of bis realm.
The Btalute of 35 Ed. 1, cap. 5, which is ii,
these words : ' Forasmuch «! divers people "•
' our realms are in fear, that the aids and taifl
' which they have given ui before-time towtm
' our wars, and other businesses of theif own
' grant nnd good-will, however ihey werejasdr,
' might cum to a bondage of them and tb«
heirs ; because they might be at other in"'
fiund on the Roll ; and likewise for the prim
taken throughout our realm by our mini-lErs;
«e haie granted for us and our heiis, Thil
we shall DPt draw any such aids, isif <"
prizes into a custom, for any thing thai l*"
hetn done heretofore, by any roil, or inj alt«t
Srecedenl that may be found.'— Ibid. eip. i-
lurcover, we have granted for ui sua oar
heirs, as well to nrchtiishups, liisbaps, f""^
and other folk of (he holy church; s^sL^B
earls banms. and all the common ally of l«
land ; that for do Uisiness from beiie«I<^
1193} STATE 'tkIAt3> 13. Gsaues L ]6J7.— hi Oe Gut tfl^^Mom^. {UM
oHt, That iK>TtiillBge or Aid ihnlf
be imposed but by grant in parliament, whidi
Mtends M bU irinnner of luds ; nnd by this jair
the sutiects of Engtamt have delt;n<led Cbem<
selves CTtr since, as with a buckler, as saith
Bodinui, fol. 97, whereby it appenretli, that
notice vm tnken of ihis law in toreign parts,
and K> held still to be a statute in force.
The neit statute is 14 Ed. 3, cap. 1, which
— ■ ■-- of the great ■ subsidy of the
* we ibalt tak« any aidsy taxos, nor priiM, ^at
' by the coramon BMent of the realm, and for
* tbe common profit cbereoF, (sating the ancient
■ aids and prizes due and accustomed)' ivhicli
WB tbe express words of liiat statute. Now,
what ihnse ancient aids were, is well known,
that they were ' ad redimendum cor|<i!«, ad
' filium priiiiogenitum militem faciend' et nd
' fill am primogenitam maritaud': Wbich aid
* coiicerni not the subject in general, but parti-
cular men were liable thereunto by ibeir to-
nures. So this saving need not to buve been;
(br the bodyof tlie act extended not to rhem,
bat to the general aid of the kingdnm.
Jfow«ver, if tliis tatvo, ae it harii been ob-
•jccted, would preserve this aid now in question.
yet the »
e made aftelwards, DeTallagic
Abridgment, 'fol. 441, in his title of Taxes,
«bri(^th in this manner : ' Anno 35 £d. 1, it.
' ii onJaiuod, ihMt tbe taxes taken, shall not be
< taken in custom, nor but by the asseat of tijia
' realm, except the aniient aids aud taxes : and
' ihere the tax of 405. upon the sack of wiiot is
* relEnsed. — 'Ibid. ■ That no tailt^e, by us or
' our heirs in our realm, be put or levieo, with-
* out: the assent of the arclibithops, bishops,
* earl*, burons, hnights, burgestes, and other
' tree commons of our realm; that nothing be
' taken fram henceforth, in the name, or by
' reuoii of Male [out' of n sack of wool. Sla-
' tute DeTaltagio non Coucedendoi'
Olyect. — Mr. -Solicitor laboured much to
prove, that there was ao such suituie, De Tal-
higio non Coocedendo : 1, Fur ihat it was not
to be found on the Rolls of Parliament. 2. For
that it was not set down when it whs mode.
3. That it was but an abstract out of CouRr-
iDfttio Chartarum Libertatum. Mr. Attorney
aaid, he would not deny it tn be a statute,
neither wouid he affinii it ; but that yet it did
not extend to take away the aid demanded, by
prerogative or power ruj!^ fur the defeiice of
the kingdom.
Rations.— To this I answer. This was never
doobled to be a statute until this argument ;
and ihni it is a statute, appearetli, I. For that
it is printed in the Book of Statutes, for a sta-
tute, a. It is recited in the Petition of Ritht,
to be a statute. To that it is not found on the
Rolls, I answer, That raatiy stalntes that are
known statutes are nut found on the Rfills, a)
Mag' Chai' is not. And as touching the lime,
I conceive it to be made Hi Bd. 1, can. 1, for
SO it i> set down ill the gre^t Book of Statutes,
printed 1618, to be the first statute therein
made, tit. in these words : ' No Taillefe nor
' Aid shall be taken or leried by us or our
•'heirs, in our realm, without the good will and
* aesent of the archbishops, bishops, earli, ba-
' rons, kni^s, bnrgessei, and other freemen of
' the land.'-T-And that' ic is n statute, all my
brothers bare nereed.
The only doubt then is, whether this statote
nMndKh to aid for tbe defence of the king-
dop;. wiii^l-ittilkf it-dotbi f^it-ii-thcpre-
rOL. III.
granted ; whereupon _,
" willing to provide for the indemnity of the said
prelates, carls, barons, and others the com-
monalty of the realm, and also of the citizens,
burgeMes, and merchants nfotcsaid, wilt and
' grant for us and our heirs, to the same pre-
' Fates, earls, barons, b"' -■■■
be had forth in example,
their prejudice in time to come, nor that tbey
be from henceforth charged or granted to
make any aid, or sttstain any charge, if it ha .
not by the common assent of the said preUtes,
' in the parliament ; and that all the profit
' nrising of the said aid, and of wards, mnr-
' riages, custnms, and escheats, and other pri»-
' fits, arising nf our said realm of England, shall
' be set and dispended upon the maintenanca
' of the safe-guard of this realm of England, and
' of our war in Scotland, Fronce, and Gas-
' coigne, and in no place elgewhcre during our
' war.'— By this atntute it nppeareth that it i«
expressly provided, that the subjects should not
be from thenceforth charged nor griejed to
make any aid, nor sustain any charge but by
common aaient, and that in plirliament ; which
is as express as may he, and exclusive to any
charge otherwise ; wbich I conceive was made
against the appointment of making, or pre-
paring nnd sending out of ships at rhe charge
of tbe towns wherein tliey were, or sending
men ont of their own counties at ihe charge of
the county.
Object. — Now whereas it is alleged by mf
brother Weston, and my brother Bcrkley.'That
this was but a temporery slalute, nnd ended
when the war ended, which nppeareth by the
last clause for emptoyment of those profils- to-
wards those wars; I conceive it appenreth to
be an absotule and perpetual stati|te, for it is
granted for him and his heirs in perpetuity.
And also It appenreth bf Plowden in his Coin-
ment, fol. 457, in sir Thomas Worth's case,
where a gmnt'isby the name of tl>e king, which
is in his politic capacity ; this extendeth against
him, his heire, and successors, although ihejr
be not nnmed. Also the intendment of this
law appeareth lo be fur the security of the sub-
j«ts, from thenceforth for all future ages. And
then the office ofjudges, as appears by sir Ed-
ward Cake's Reports, lib. 5, fol. 7, and Plow-
den's Comment, in Aston and Stud's ca*e,^it
to coirstrue statutes according to tbe true in-
tent of the naken thereof wfaich wsi'ia dii*
4s
1155] :?rATETRIAI^, 13Cfl.I. 10S7.— The iaagagauutJolmaai^>da,aq. [WA
•tatute, that it iliould be m perpetual tecurily
fur the stubjecis. And to little 'purpose it
had been, to muke a Btalule to (»Dlinue but
during the lima of tlie war, or during the kioc's
life.
Otgect. — Alio where it is ii1le(^;«l chat ihe
statute or U Ed. 3, is not raentiuDed in ihe
Petition of Right, which i» sooie aigumenl that
it was not conceived to ben continuing statute.
lUtpons.— To tliat t answer, That in the Fe-
tioD of K^ht it is said; Thnt by the statute
there recited, and other the goad scntiites uf
this realm, the subjects shall not be compelled
to pay an; laies, taitlage, aid, nor other like
charge not set by parliament ; in> which this
ttatute is as well intended as other statutes,
and us far as if h had Ijeen eipresslj recited.
Alan itappeareth by all the books nf statutes,
tliat this statute is granted as a statute couti-
ruing, whereas others expired, are set down as
81 Ed. 3, pars 3, m. 11. A subsidy being
granted by partiameDt, vii. 40i. on eveij sock
of wool transported before Michaehnns allow-
ing, and 6d, on every SOi. of merchandize, for
the safe-guarding of the mercbants and defence
of the coast, fee. After Michaelmas, viz. 31
Octob. 21 Ed. 3, by writ the collecfira were
commanded to continue the collection of those
tubsirlies until Easter. But 36 Nov. 21 Ed, 9,
the kio; by writ coidmanded the sta; oi'the 6d.
in the 30i. and to continue the collection of the
subsidies upon the s;ick9 of wuol until Easter. '
aa Ed. 3, Rot, Pari. m. 16. Tlie parlia-
ment being bolden in Lent, the commons com-
plain of the continuance of this collection of
thesubsidies upon the socks ofwool longer than
the parliament had granted it, and provided
that it should not be continued longer th:iu
Eaater,*! the procurement of any person. By
tliis it appeareth, that the piirliumcnC being
. careful tlmt the time fur levying of a tub-
sidy granted, should not he enlarged by any
power, much less would tliey admit of a writ to
luy a chat^e without grant by parliament.
'S5 Ed. 3, m. 1. It was enacu-d that no
man should be compelled to find men at anns,
other thnn such as bold by such service, e(cept
it be by common assent in parliament. By
this it appearcth, tliat if men be Dot compella-
ble to hnd a man at arms, unless it be by com-
mon assent in parliament ; much Itss is any
bound to be contributory to the preparing of a
ship with 1(10 men at arms, and victu.ils, and
wn^es of soldiery for 26 weeks, unless it be by
common assent in parliament.
Kot. Purl. 31 Hen. 4, nutn. 99. Aa act of
parliament, be I count it, in tlie veir point, is
in these words ; ' For that of late, divers com-
' luitsinns were maile to divers cities and bo-
' roughs witlin the realm, to make barges ana
' bnrringers, without assent of parliameut, and
* otiicnvise tliun iiath been done before these ;
' however the commons do pray tlie king that
' these CO mmiisions may be repealed, and that
' they may not he ofanyforceoreBcct.' To
wliicL it is answered, 'That the king wilklh
■ that the said commission* be repealed ;' wHA <
il an absolute and perfect itatnle.
But then there are added these wards: 'Hot
' for the great necessity be hath oF Mdi iCMlt
' for the defence of the i«alm in caic thai At ■
' war shall happen, he will treat with his Mt
'oftliis matter, and afterwards will shew it IP-
' ihe commons tn have their counicl and id>
' vice in this point.' So by ths recont it tp-
peareth that tbc commoos did couceive data*
cities, boroughs, nor towns, wilboat couestia
parliament, were to be charged with the nukiii
of such vessels; to which the king a^reelh, ilt
from that day to this, until tbemakiot oftbcM
writs, in no age, although the kin^km hai i
been many times in danger of invaiiaD, ud
hath been inr'aded, there do not sppear ■■; .
records that ever I have seen of writs diKdai
to any towns or cities at (beir charges, tondi
or prepare any ships or vessels whusoevet.
Object.— And whereat it hath been alJM*-
ed, and especially insisted upon by my bnthn
Berkley, that this Utter part, that the kiagvi
treat with his lords concerning tbeni, aDdtlbr
confer with the commons, isa gentle deoiiltf
that act; as theeiperienceisatthisdsy. 'U
' Roy se avisrra' in a denial of on act.
Respons. — Hereupon I answer, Itissollf
solute act, for it is an absolule assent to lit
petition. And that which came after tm b«
a plausible excuse, for that such eomuii«™
had gone out; and this farther contolutioa
never appeared to be made, nor ever anjn
writ or commission for sucii vessels to U mtit
went out since, until this writ.
13 Hen. 4, m. 10, A grant is of asabid;
of wools, woolfels, hides, and oiIict tii*?
there mentioned, and of Tonnage and Pousi-
B^e for one year, tor the defence of the mirehn
oi Calais, &c. and for tlie defence of the rraiu,
and the safe-guard of the sea. And thereiss
this expr«9 Proviso, 'Provided (haltbiipu"
' of a bubsidy of wools, &c. and ToDna|»s«l
' Pouudagr,intinie to come, shall Doibeli^
' in example to charge the lords and comroHs
'of this realm wiih nnv manner of mbud.r'M
' the Buft!;uard of Calais, &c, nor ftir ibe it-
' fence of the realm, nor tlie satVguard of IW
< sca^; unk-M it be by ttie will uf the lord^ ■■"
' commons of the realm, and that by s on
' grant to be made, and that in fall psrlisnW
' to come.' By this appeareth that ititwtbw
provided, that no charge sliould he laid on ll*
lords or commons, no not fur the defeoet ol"
realm, but by grant in full parliament.
13 Hen. 4, m. 43. A petition was in ps:^
ment recirin);, that there uas an office l"^
of Alneger within London and the svbiirbis
the same, with fees to that appertaininc, *^
any such office never was, nor any sock M*
appertaining thereunto; and that by (w*"
thereof, they levy one half-pensy of roe Iwj*
and a half-penny of thcKller, sod DpaD Wt"
every hundred ells of canvass a penny af'^
seller, and a penny of the buyer, wMograJ;
against the statutes in ibe timM afyaar ki^
dcm's progenitora made to the cootrwjr '^
1157] STATETRJALS, ISCharlmI. \637.—4iHie Ciue(ifS/up-Monfy. [1158
whtcli it is □rdained lliat no tailEage nor aid
■hnli bo granted nor leried without usent tnd
consent of the lords and commons of your
retilm, gi b; the statutes is fully declared;
wherebre they prayed tliBl such letters patents
made tbrreuf abftl) tie void and holden for none.
And tfars wu4 granted; whereby ic appeareth
that it is declared then in pnrlianieut, t)iat
those scaiutes ifere and did continue; i bat no
tnillage or aid shall be levied wittiout grant in
parliament.
1 Kic. S, c. 1. It is enacted in these nonfs :
* Our sovereign lord ihe ting reiiiembenng liow
* the comlDOiiB of tliis renlin, by new and iin-
' lanfil] inventions, and inordinate ccnetize,
' have, auninst the laws of tbis realm, been put
' to great servitude and importunate choj^ei
' anil eKactioiu, nnd especially by a new im-
' post, called a Becievalence, thereby divers
* Mibjects of this land, against their wills and
' liberties, have paid );reai suins ot' moTiey, &c.
' It is enacted nnd ordained, that the siibjccts
' and conunong of this realm from henceforth
' ahnll in no vriie be chatf^ed by sucb charges
' or impositions called a benevolence, or Euch
' like chat^ : and that such exactmns called a
' benevolence, before that time taken, shall he
f taken for no eiumple to make any such, or
'' any like charge, from any of hii> sabjpcis of
' \ha realm hereafter, hut shall be damned an<]
' DoUed for ever.' By this it appeareth that it
is expressly pronded that the subjects shall
Dot be charged by nay of benevolence, which
is in natore of a free gift, nor such like charge ;
thai it, no charge of money tihaU be laid upon
the labjects npon any pretence whatsoever, be
it for defeoce id time of danger or guarding of
the sea.
The last and concluding statute i* the Peti-
tion of R^i, made in the third year of his
mnjetty'* rei^n, reciting, that it was enacted by
« ttatuta made in the time of Edward 1, com-
monly called Statutum de Tatlagio non Cun-
eedendo, that no taillige or aid sliall be laid
or levied by the king or his heirs in this realm,
•vithout the good-ttilt and assent of the arcb~
bishops, bishops, earls, barons, knights, and
Others die freemen of the commonalty of this
r«tilm. And by a statute of 35 Ed. 3, That
none shall he compelled to make any loans to
the king, because such loans were against
reason, and franchise of the land. And by
•noiher statute, that none shall be charged hy
aoy impositions called a benevolence. By
which statutes, and other the good statutes uf
this reahn, your subjects have inherited the
/i«edom that they eliall not be compelled to
eontribute to any taxes, laillage,, aid, or other
like charge not set by parliament. — And then
thcv pray, tharnooe hereafter be compelled to
iDBke or yield aoy gift, loan, benevolence, tax,
or such like chai^, without common consent
by act of parliament. And after five other
things there mentioned, the conclusion is ; 'all
which they pray as tbeir rights and liberties.'
Unto which the kiog answers, ' Let ri^ht be
* done OS is deiired.' Which is a full and per-
; feet statote, shewing in this point the liberty
of the kingdom prayed, nnd alloired ; vtbich
was not dune mitl^out the advice of the judges,
whereof I was one, nli'ise opi.iions tverp iTilii
demanded, and resolved that ibe snmo i'A-\ nut
give any new liberty, but declorpd n l,Mir|-,(^ li-
berty of the subject was in this timong-t nlheis,
that ihey should not be cumpflkd In be ci'ii-
tributory to any lax, talllnge or aid, nor any
like cliar^e not set by parli:imint. AJl wtiicn
staluiei, those of as Edw. i, 34 Edw. 1, and
14 Kd. 3, being in the neg»iive and in force,
I cunciude that these writs lo lay sucb n chari^e
is against the law, and so the assesuncnt bj
colour thereof unlaw ful.
Object. — Now whereas the precedent ai^u-
ments hnve'becn that the kingJoni being In
clanger, therefore these writs went tbrth for the
mnliiiig of ships, because iherc could not be
so suddenly any pnrlinnient caliod, and the
parliament is a slow body, and tlie kingdom
may be lost whihit tbere is a, consultation, and .
tile danger is conceived to be very grc-at, be-
cause that ihc writ 4 Aug. s<i mentions, that the
pirates provided a great navy to infest the king-
dom, and it is At with speed to provide n re-
medy: and that the writ of Mittimus mention-
elb. That ' salus reipublica periclitabstur :'
and we must believe these suggestions lo La
true, for the kiiij^'s certificate by this writ is
' recordnm superlativum," as Mr. Solicitor and
my brotlier Berkley termed it, and must leave
it upon the king's conscience if it be nut true,
to lay such a charge upon an untrue sugges-
tion. And the defcntlniit also by his demurrer
linlh confessed all the suggestions in the writ
lo be true ; therefore it must be coticlnded the
kingdom was in great danger, and present re-
medy must be had hy making of these ships,
and mubt be coiiimanded by these writs, and
not to stay fur a parliament; and my brother
Crawjcj said, it may be if a pai^iametit were
called, ihey will not yield lo the going fon\i of
such writs, altboueh the kingdom was never so
much in danger. And (his charge in respect
of the milking of the defence is not within the
inteutioii uf these stntutes ; and if it had been
expreksly mentioned wilhin a statute, ibnt euch
a cliarge should not he imposed, it bad been
a Aid statute, and contrary to the laws, that
the kingdom sliould not be defended.
Respons. 1.— To all these I anawer.Tlifittbe
matter now in queslidn is upon the writ 4 Aug.
Whether that be legal or nut ; and the sugges-
tions therein be su&cient or not for the writ of
Mittimus, mentioning that ' salus reipublicN
■ periditabatur' at the day of the issuing of the
writ 4 Aug. which is a year and ab half oiler
the first writ, doth not help it; and this not
notified to the sheriff and inhabitants of the
county to make them the more careful, nnd in
a greater contempt ifa ship were not provided,
but it is only d notification to the barons of the
Exchequer, that the somewts the reason that
the same issued forth.
Respooj. 8. — The snggestions are not abso-
lute, that any inch danger was, or such lutvj
1159] STATETRIALS, 13Ch.I. 1637— 11* «:»««««"< /i>AnJfai«]Hfa«,«5. [IMO
vt» pttpa^ hj piratei ; but oalj DMatioacth,
' qui^ daiuin auliis iatelligi,' that ihe piiates
had dune sucli ininchier.
RespuDs. 3. — If sucli sugestioiu had been
nbaoluteiy set down, yet we are Qot always
bouod Hbsolutely to believe ihem ; becmue
many times untrue su^gestians ore put into
writs and patenti ; and yet ii dntli not lie upou
tlie king's conscience, ntittier dotli the law im-
pute HOy fact to the king, that any such be ;
(br the luw dotii always couceive bonouraLly
of tiieking, that iie caniuit, unr will not, signify
any untruth under I he Gr^at Stal; but lie \a
nhused therein, and the law iniputi^h it to tliem
tiiat su misinformed ibe king, nud thrust in
■uch suggestions inio tlie Writ or Patent. And
therefore all patents grounded upon untrue
Wggestioiis, are accoouted void.
Aespous. 4. — That ihe demurrer ronffSEeili
nothing but that which is leeally and well set
down ; hut if it be illegal the demurrer con-
iesseth it not, but k well ulftred for lliat cause.
Respnns. 5. — If the kiiigiloui were in danger,
JM a cbai^e must [lot be laid in general upon
the subiecLs, wiibouc their conient in parlia-
ment : fur either the danger is nenr, ai^ then
the present provision must be made by mrn's
persons, niid the present ships of the kingdom,
nhich tlie kbig miiy command fmm all parts of
the kingdom, as need shall require ; but cannot
command money out of men's purses, by dis-
tnining of lltpir goods, or imprisoning of their
penoQs. But if the 6anger be funher off, hf
reason of any foreign combinations, (as it is
conceived it may be here) that provision must
be made of sliips by all the kingdom for de-
fence i then, as Philip Conunines, fol. 179,
saitb, That cloud is seen afar off, before that
the tempest falls, especially by a foreign war;
■nd sucli invasions cannot happen go soon, but
that the king may call his sages together, and
by consent make provision lor such defence.
So I say here. If there be time to make
sliips, or prepare ships at the charge of the
cotiniiesi then is there time enough for liis
majesly, if lie pleases to call his parliament, to
charge his couunotn, by consent m parliament,
and tu have a subsidiary aid, at always hath
been done in such cases. And they are luit so
Jong coming or mpeting, but tliey will nftke
proTision for defence, it being for nil their safe-
■ ;s : For it appeareth by Coke, lib. 9, foi. 1,
Thi
his epistle, iliat king Alfred made a law,
a parliament sbouTd be held twice every
year, and oAner, if need required, in times of
peace: So that it was then conceived, that it
was necessary to have parliaments tn redresi
inconveniences.— Also by a statute made 4 Ed.
i, cup. 14, it is enacted, a parliament shall be
held once every year, and ollner if need be.
And also Ly a statute made 36 Ed. 3, cap. 10,
it is enacted, for the redress of mist^ien anil
grievances ihal daily happen, a parliament shall
pe holdcn every jeor, as another time was o
dained by a statute, which, I think, referrelh I
i £d. 3. Also it appeoreth by (be speed tbi
«w in the paiUament heU in tbe third year of
hi« miuasty's rrign, when Gte subsidies ■««
graiitatl, tAO uf tliem to be paid witiiin fi-»
days after the session of parliaincBt ended ;
and therefore miglit, as tbia case is, beoi
ordered aud provided lit by parliankeoc witliB
7 months, as tlie time was between (lie teste of
the writ, and tlie time prefixed (or sbip* to W
prepared and sent.
Ub|ect.~A(id whereas it i* objected, Tbat
peiliaps the parliament would not ^ve cona^t-
ed, and so the kingdom might have be«o laoc
Q«pani. — ]t is answered, That it i* not to
be presumed, tlmt Ihe parliament would d^j
to do that wlncli is tit lor tbe safsy and 6^
fcqce of the kingdom, their o»<> ^taiea ami
lives being in danger, if the kingdom were bo«
sulficieuily detendcd : For it is a rnle, ' KAA
' iniquiam eat pnEsumend' in lege.' So of the
high court of parliament. That iber would not
deny thnt nbich is fittiag. But I coRfess, I
ihinfc tlial if it had been moved in pariiamenl,
tliey wonld t^^ver have consented to titeee writs,
such never having been anarded before aiaco
tbe Conquest. And if they bi^ consented, they
would have taken a course how the Maie
sliould have been made i*ith the moat too-
venieucy, and not to leave it to a sheriff to Cat
them how he would.
Object. -To that which hath been mid.
That ibis charge is not wiihin the statute, and
that a statute to inhibit such a cliarge, for de-
fence wert void,
Respons. — I answer, that it is true, Tb«t ifa
statute were, that the king should oat defead
the kingdom, it -were void, being agaiiiH taw
and reason. But a statute that money sfaaH
not be chained or levyed, nor that men shall
be charged to make or prepare ships at tbcw
own charges, without common comenl in par-
liameiii, I conceive were a good lew, and agiea-
able to law and leason. And ibe king auj by
parliament, restrain himself from laying atich a
charge, but by omtent in parliament. And
then ihe king being a just and pious kii)g,aa
ever eoverned tbe kingdom, which we that
serve m his courts of justice have daily expe-
rience of, would not assent unto, or suler any
such charge, if he were truly iafbrraed the in-
posing of tlus charge vera agaiust any one law
of his kingdom, ai this is agaiiut bo lonny : b»
would tajr, as it is said of the statute made U
Ed. 1. Ibat the popf should not be pennittad
to present to benefices ; That he was bonnd by
his oath to see that, and other laws in ibrov
and not repealed, to be perforaaed i That ha
would not suffer such charges to be laid, coih-
trarv to the !a»s and statutes of bit realm:
And would do as the late ftmous queen Elii.
did, when having required a charge upon diven
of her subjecta, by particular letters from the
lords of her couiicil, of several suibs of noan
for present help towards her wars in Irelani^
hearing that one of her judges, beiiw convented
before her lords for the psymeat of it, thereby
. disoouraging others tu pay it, answered it «■§
a^iiiisl tbe laws, that the same abautd be >■•
pMtd, iheic being aa «Kpt«« •taint* agaiiui i^
llfil] STATE TRIALS, IS CiiAfcLul.lS37^fe(bCtiwi/S&^3fimv- [lUB
nlkiiii he being it judi^, wm bound bf hi* onth
CO tlKtilyi lie beine, hb much a< in biin wai, to
be 8> couMrvator of tlie queen's oa^ in that
Jueholf. The queen, I mv, was verj ani^ thai
such >D impo»uiou had been laid agBJnst law,
ami CMnniHiidtid it blioold be stopped from
fMriber gBthcring ; and to tome that had paid
their luoneyt, Llie aame wie rettored. .Jlad
tliererure the principal and onl^ TbuIi in t)ie
char^un of his suhjecie b; tbeae writs, if they
be unlawful, ai i conceive they ore, is m tliuse
that devised tliem, and informed liioi tliat tbe;
were lawful, and uich as his proi^enitora had
from time t» time tited to tend forth ; and in
hi) judges who have affirmed it ti> be lawful:
Therefore upon this point I conclude, That
(hi* chaise, by this writ, ii illegal ; and i* no
MiHicieut cause to cliarge the deliendaat.
Object. — Wlierent it hath been much urged
andornicd bjUr.SolIieitur, and Mr.Attomej,
That ihiB writ is warranted by the king's ^rero-
Sative and powcr-raynl ta send forth luch writs
}r defence and safety of the kiQ|doin in time
of danger.
To this I answer. That I do not conceive
there it any iDCh prerogative; for if it ware a
|)reroguive, I should not oiler tn speak against
iti for it is part of aur uaths, that are judges,
to maintain the king's 'prerogative to the best of
our skill, and not to suffer the same to be di-
minislied. But if it be as I have argued, That
is against the common law, and xgainst so
many staintes, that the subjects sbouTd be in-
Ibrced to sustain, or to contribute to any charge,
teichoDt the special consent, or comiron assent
in parliament, then there is no such prerogn~
tiva; for Hhatsoever is done to the hurt or
wroag of the subjects, and against the laws of
the land, the law impulEth that honour and
justice to the king, whose llu-one is established
b^junice, thai it is accounted not done by the
king, but by some untni.e and unjust informa-
tions. This appearelh by the outhoritles of
our boobs i for Bracion, lib. S, fot. lOT, who is
an ancieut writer in our law, said ' Nihil aliud
' potest rpx in terns:, cum sit E>ei rainisier et vi-
* carius, qunm de jure potest ;' and there a little
aller, ' Itaq; potestas juris sua est, et non in-
* juiia, cum tit author juris, nou debet inde
< injuria nasci occasio, unde jura nnscuotur.'
&ir£dw. Coke.hiibe 11th book of hiiKepoits,
in the case uf Mngdaten College, where the
question was, whether queen Elizabetii hnving
taken a long lease of ■ college, being conceived
to be against the statute 13 Elii. it was sought
to be maintained by her prerogative, but. re-
solved it could not, it being against a statute,
hy which she was bound, thoogh not named,
and there fol. 73, it is s.iid, * hoc solum rex noit
' poteat facere, quod non potest injustc o|ere.'
Plowden's Comment, fnl. 846, 3 17, in the lord
Berkley's case it is said, That the prerogativi
of the king cannot do wrong, and his premga-
any. Plowden's Cotnment. fol. 487, in Mi
cheH'* case, it is said by justice Harper, alihuugfa
a Ian doth aUow many prnogatiTe*
the kir^, yet k doth not allow any, that be
shall hurt or wroni^'aiiy by his prerogative. SI
Ed. 3, fol. 47, the earl of Kent's C3se,'it is taid.
That if the km;-, oader hispieat seal, do make
any grant to tlie hurt of any other, he shall re-
penl and avoid it, jure regis ; for the king is aq-
counted to be abneed bynatrue BUggestions,when
he is drawn to do nay urong to the hurt of any
•ther; much more I sny, wlien he is drawn to do
anv thing to the hurt of bissubjectsin genend. ^
Ed. Coke, hb. 11, fol. 8G, m Daroe's case, it
if said. That ev^ry grant of the king liath this
cnnditirin annexed unio it, ' ladte aui eipresie,
quod patna per donationem illam magis
ito nononetetur,seu gravetur.' Tlie book
called Doctor and Student, fol. 8, setting down.
That the law doth vest the absolute property of
every man's goods in him, and that they caunot
be taken from tiim but by bii tunsent, aaitb.
That is the reason that if they be taken from
biin, the party shall antwer the full value tliere-
ofin daiBQges. And sure I cnncrive, that the
party that doth this wrong to another, shall be- '
sides ihe damage* to the party, be imptisoDcd,
and pay a fine to the king; whicl), in the Kind's
Bench, is the tenth pait nfas much as he pay-
eth to ihe party. So then, if the king will pu-
nish the wrung of taking of goads, wi^aui con-
sent, between party and party ; much more nil!
he not by any prerogative take away any man's
goods, without his consent, particular or ge-
iierai.
So I conclude, that I conceive, that there is
not any such pri-rngative ti award such writs
:o command men to sustain such charge, as (o
be contributory to it ; and to be dibtrained and
imprisoned for not paj-meni tliereof — Also I
conceive, That this is not an act of royal
powerj for if it be illegal to impose sucb a
charge, then it is not accounted as a mat-
ter of royal power, but ns a matter done upon
an untrue suggotiou, and 'a mailer of wrong
done ; and wrung is not imputed to the kinp,
fur he can do no wrong; but it is imputed to
thcra that advised blni to this course.
Royal power, I account, is to be .used in
cases of iiecessi^, nnd imminent danger, when
ordinary courses will not avail ; for it n a rule,
' Non occurrendum est ad estrnord'nnria,
' quaodo fieri potest per ordinnria ;' as in roses
of rebellion, sudden invasion, and Eonte otliCT
cases, whfre mariial law may be used, nnd may
not stay for legal proceedings. But in a lime
of peace, and no extreme iiece<5ity, legal
couries must be tited, and not royal power.
Therefore, whereas in the stntule of SI Hen. 8,
cap, R, uhich was mnde upon the suppression
nf abbeys, when rebellions were begun to be
stirred, it is recited, Tliat sadden occasions
faappeuing, which do require speedy remedies,
and for lack of a statute, the king was enforred
to nse royal poivcr ; it was enacted for the rea-
sons therein mentioned, That the kin;^ hy the
advice nf bis counsel therein nnmed, two bi-
shops, two chief justices, nnd divers others, or
the major part of them, by hie proclamatioB,
may make oidiaaaceferpouiilungof oSieneea,
11G3] STATE TRIALS, 13 Ch. I. l (137. —llieKiagagaina John Hanipdm.aq. [lift
mnd laj pensltiei, whicb Ehoald have ihe force
of a Uw, with a promise ihat thereby nu n
life, lands or goodi, should be touclird or
peached, so thnt therein roval poxer was i
lied hy a stnCute: yet that statute took
that no man's life, land] or koo(1>> should be
ttken or prejudiced ; and tbst statute was
ihoH^t inconvenient, aod tlierelbre the ^ame
by a Matute ol 1 Ed. 6, vtia repealed.
Bracton, lib. S, cap. 24, fol. 55. Aud the
I cited in Coke, lib. 7, (ol. 11,
Case, ' Regis corona esc facere justitiam etju
* diciam, el tenere pacem, tine quibus coroni
' conuttere non potest, nee tenere.' — Coke
lib. T, fol. 5, in Calvin's Cose, cited out of For
tescue, ■ Kei ad tutelani corpnrum et boooruD.
' erectui est;' which being so, he cannot take
awa; mens |oodi, or charge luera without theii
consent, hy on/ prerogative or royal power.
AUo there can be no such necessiij, or dan-
ger conceived, that may cause these writs to h<
•warded to all counties of England, to prepare
ships at such a charge, and with such n
amiitunition, witliout coosent in parli
for the laws have provided means for defence
in times of danger, without taking this course :
for that the king hath power to coiumnnd all,
or any persons of his kingdom, Co attend with
urml at the sea-cnaits, to defend the coasts, or
any other parts of the kingdom ; and also by
his officers, lo make stay ' or arrest, all or anj
the ships oF merchants, and others having ships,
or as many as he pleaseth to go with his naiy.
to any partt of his kingdom, for defence there,
of^ and to attend those to whom he appointed
the guaid of the seas, or the sea-coasts, nt such
times aud places as ihey should appoint.
this has been always taLcn and conceived to be
sufficient fur defence, against any print
soever ; and yet the same was in time
the navy of England was not so stron|{,
by the hlessing uf Ood aud tlie good providence
of his majesty it is. — That this course was then
so taken, appeareth by divers records,
£d. 1, m. 4, the Record recitelh, That the
French king had prepared a great navy upon
the MB, and purpOMd to invade the kingdom,
' et linguam Ansficanam de terra delere;' and
thereupon the king commanded all the ships,
and men with arms, to be in readiness Co de-
fend tfae kingdom.
Hot. Scot. 10 Ed. S, m. 16, reciteth, That
certain laiieys in parts beyond the seas, were
prepared with provisions of nien, and arms,
mod other necessaries of war, and ready to in-
vade the land ; Command was, that divers ships
■bould be in readiness to defend the same; and
the ship* of the ports of Ireland to be sent into
England to help to defend the kingdom.
Scot. 10 Ed. 3, m. 3S. A wnC was to the
bailiffof South Wales, (reciting. That the Scots
kod diven otbers confederating together, pie-
part themselves to arms and ships in a great
nnmber, and intend to invade the kingdom) to
command tbem to have one ship r^dv upon i
lite sea to defend their coatU. The like writ
■vat then to North Walck
AW IS Ed. S, m. 10. A writ to the mtja
of London : ' Quia bostts nostri in gallntcuis
' multitudine non modica cnngregati inibion
< parbhus regni husiiliter iagressi sunt, ft ati-
' tatem pnedict' celeriter $i posiunt invtdni
' proponuot.' The king commsndeih them tn
shut -up the city towards the water, an<l lo pil
all their men in arms ready to defend. Etc
Aim' 13 Ed. S, jn. 13. A writ to tht bvlif
of Great Yarmouth : ' Quia pro cenedidio-
' mus quod hostes nosiri Franc' ec adhsifaui
' eitd' galleas et uaves guerrinas in capon
' multitudine in pailihus eiteris conereganiBi,
' et lis homines ad arma parari fstjunt, cl pre-
' ponunt se movere versus ffgnom noslruna
' UBvig' regni nostri et portus prope niwta-
' tuat' pro virihus destruere,et id' regnooi is*
' dere, &c.' Command the same lawn to pn-
pare four ships with 140 men, &c. — At iLt
same lime writs went forth to tiienty olhs
towns upon the seo-coosu. Franc. !l6 Ed. 9,
m. 5. Writ to the earl of Huntingilon lai
others, ' Quia adversani nostri Franciz no) n
' regnum nostrum invadere machinamo, w^
' num navigium prEparari fccer' et anani, M
' dum od regnum nostrum Anglias subito Mn-
' hend' sed ad noset dominium nostromrtt^
' tarn natioiiein Angllcanam pro vlribus xi-
' vertend' fee.' commanding them to gotrd il
the sea-coasis of Kent, and to array all dmi w
be ready with arms to defend the sea-coitts.
5 Hen. 4, m. 38. A commission is lo 1W
mas Moriey and other).; ' Quod com iaiwii
'-nostri Francia: Brltan' Scot' et nl' sibi adh»
' rentes inter se ohiigati magna poceatia I^
' mat' super mare in estat. pros' fomi' eidi*
' verunt r^um nostr" Aoglin iovadere, let'
comnkanding them to airay men with una is
defend, &c.
4 Hon. 8, par. 9. The kins by procluulM
to the county of Kant, shewetn, that it it mm
to his knowledge of certaio, that hii aaciMl
enemy, the French king, hath prepared sod M
in readiness a great and strong navy, fniiuw
with men of war, to invade Ihe kingdoa a
England ; the king appoints the lord of Ab«-
gareuny and others, to pot men in artsy, atll
to be ready to defend Chat county.
Anno 1588, when the great invatini '■>.^
the navy, termed The Invincible Nary, "Im
was forewen long before, this coarse nl frtf»
ing ships by every county of tfae kingdom ■■
noC appointed ; yet in all these times, f^
theje appeared so great danger of inissiMi
there never went any each writ into any of ik
counties of England, to jirovide ships : But tbs
navy of England, and army of England, wt> >l-
ways accounted sufficient for the aefeoce of tht
kingdom.
»> I conclude this point, that I concdvr tkil
)ur»e cannot be taiien by any prcrogstiitw
>yal power, nor any all^aiion of oMaaOj K
For the foottb p<Knt,
tiBt if il
roruieiODtui ptnni, t ccmcavt:, uw. i- -
were l^al to lar such chaige upon mantM
parti; yet to charga any inlaoil county «>>>>
■ukiogof ships, and flinushiiig then mth oiaff
1165] STAT^TRIALS, 13Chau.EsI: IfUl^intlte Catet^Sh^Maiy. [1106
marinen aud nldierf at tbcir chargcn, whici)
are fiu- remote rrom the set, is not 1e^, nor
warranted Uyany former precedent^ fbrjtcoili-
■nnndeth ao unreaiouable and impouible thing
by tliem to be done : utid (hen n writ, command-
)n|> such a UiinK u is uiireisonable Euid impos-
■ibte for tb« parties of themselves to pfrfbrm,
antjfs, n nlwavs i
for it is a rule, that ' Lex noii cogit ad impnssi-
' bilia:' If one bv corenant bind hEmself to do
a thing impossible, the corenaot ii void. — This
appeareth hj tbe book cnse 40 Ed. 3, fol. ti,
where the case ii expressly, tbat if a man do
covenant to do' a thing impoasible, the co-
TsUant it void, and Che deed u void in (hat re-
■pect; also tbe boob, m. S Ed. 4, fol. 3. If a
feoffment be made upon condition to be void, if
the fcoSee did nut a thing which it impossible,
the feoffinenc is jcood, and the condition void :
for it was the lault of the feoffer to annex such
a condition. And this appearetb by the case
of an arbitrement. If the arbitrator award,
that one shall enter into bond, with luch a one
as big suuty, Co pa;f a sum of money, or cn do
any other act, it is void, as to che finding of a
surety at the lease ; for it is not in his power to
compel him to be his surMj : therefore the law
accounCelli it unreasonable, and so void. And
this appeareih bj tlie book-case 17 Ed. 4, fo. 5,
where it ii so resolved.
So thi* nric commanding the sheriff and inha-
bitants of an inland couon to find a »hlp nich
tnasten and mariners; wberea* there are not
any shipwrights that hnve skill (o make sbijn,
Dorany masters ormariners ever there to guide
a ship, for they are still conversant about mat-
ters of the plough, sijd feeding cattle, and hus-
bandry, and ore irained up by muscera to skill
of arms to defend the country, but not with sea
affairs; fbrmust of tlie county never saw a ship,
nor kilQw what belongs to mus(ers or inaHnrrs ;
anil Ilie county is nut bound to seek nut of the
county for sucb men ; and perhaps if they
■hould, tliey cannot tell where to have them ;
iherefure, when such writs to inland towns have
been awiirded to find ships with masters nnd
marinerSiitbting conceived by infoimation that
they were maritime (owns, and had ships and
mariners dnelling with tbem ; the truth Uiereof
being made appear to the contrary, they hnve
been discharged, as appears by a record, 13 Ed.
3, part 3, m. J4, where a writ went to the ad-
miral of the fleet : Upon complaint to the king
by the men of Bodmin in the county of Com-
Wnll, tluLt they were unjustly char^ cn find a
•hip with masters and mariaen, whereas that
town was no port town, nor adjoining to the
■ca, but far within the land, nor ever lud ships
lying there, nor mariners, nor seamen, nor ever
used to Gnd any such for sea service, and that
their major nnd officers were imprisoned fur not
finding a ship ; thereupon the king appointed to
have it enquired wliether their allegations were
tme, aud if it were true, signifieil that he would
not have them be unjustly charged, but tbat
tbeythouidbediicharged thereof Wlnchsbew-
etb,'tliat it VM then accounted unjuH to lay
such a charge upon a town (hat was an inland
town, nnd liad uoioariDcrinbabitiiigin It; much
more nlieii such a charge is laid upon nn inland
county, which is much Innher remote from llie
sen, and cannot perforni by themselves that
which the writ commanded.
eiog obj
toiicitor gave an-
swer, that tbe same woa because the admiral of
his own Buchoriiy had chatted them,'-whicli was
not according to his commisjion; for he was
only to charge the port towns and sea towns:
but tliat the same may nol be done by the lilng's
writ, the record doth not prove.
Reapons. — But to this I answer, that I con-
ceive It is all one when such a charge is laid
upon a town by writ, which is an inland town,
for so it appearcth by another record of the
same year, vli. 13 Ed. 3, part 1, m. 14, where
a writ was directed (o tiie admiral of the fleet
' Ab ore Tbamesis versus partes occidentales j*
reciting, that where the king by his writ to tim
town of Chichester, commanded the mayor and
commonidty there, that they ihould make' unam
' navem «t duos escularios de guerm parari,'
with mariners and men at arms, to be at Ports-
mouth such a day, to go with the king's ships ;
and that they had complained that cbey hud
not, nor ever had any ships arriving in that
town, nor had any seamen or mariners dwelling
there ; and that it appeared to tbe king, by in-
quLiitioQ of a jnry returned into his Chancery,
this dieir oilegacion (o be true : therefore, be-
cause (he king would not have tbem indetill
gravari, (for so be the words of the record) the
king coromandeth the admiral that they shall
not be troubled nor distrained fur nol perform-
once of such service. Whereby it nppesretb,
tbat if they being within a few miles of tbe sen,
should not be charged to find such a ship, much
leas more inland counties that are farther re-
mote from the seas, are Justly to be charged
with finding ships and mariner?. Tlierefbre I
conclude tbia point, that I conceive this writ in '
that respect is not legal, nor warranted by any
former precedent.
The fifth and great p<iint bath been, and in-
deed the chief ergomtnt hath been, a multitude
of records aiul precedents, which have been
cited, that should vrarrant these writs ; and
that the king hath done nothing hot whkt his
former progeuiiors have done, and hnve law-
fully done; and that he doth now but mora
majarum, and that which always in ancient
limes hath been done and allowed, and there*
fore ought to be done. — I confess this alleg*-
tion much troubled me, when I beard thesa
records cited, and so learnedly nnd earnestly
pressed by Mr. Solicitor, and after by Mr.
Attorney, to be so clear, that they might nof
he gainsaid: but that they proved a clear pre-
rogative, or at least a roynl power, that the
king might do so, especially when my brother
Weston, and my brother Berkley (who hav«
seen the records) pressed some of them, and
relied upoa them for the reaspns of their judg^
meats ; I tay, I was moch doubtful tbareufMi,
11(1)] STTATETKIALS, llCi. L 16>7^ZI<A>i«ig<>>«Ji>bB<i9<a,ai. [Ira
HDy uinriuine tonns, or inlaiirt Umn, fw tbt
DialtH^ of ships, but otie ; which teaai vh
much prnaed by Mr. Aitorn^, and ■TMnwli
bj my brotlier Weston, and n>jr bhith?r Bnk-
l«y, to pmre, tbat this course was, and m^
bt pritclised after the statute or t-^ Ed, 3, fif
sending forth luch wiits, and allowed : but
that record is iiiUy stttislied, foricwngroiiwltd
upon an ordinance of pHrliaroent in 1 Kjch. 1,
in. 53, thnl all atitieot cities, burrou^, nd
towi)^ tliat would then, sliould hive thm
chai-ien conlimifd witliout nny (diarge of in,
snvc only to maLLe n ship of war for delenct of
llie realiB ; so thia was not compulwi^ u> uy,
buc voluntary to those thn.c would have iheir li-
berties confirnieii, Ajid aften»nnl>, in 1 Ho.
4> Fommisuonsirere awarded for mnkiagiiuk
vesiela of war; Imt ihoee iuuin; forth wuhM
any ordinooce of parliaineut, were comjJaiiKi
of in paijiamenc S Hen. i, and no iuch vra*
inned forth in any age, to any ruHrilinie lontt,
to make sbips, or prepxre ^lipi a( their <)*>
char)^ for the kii^s service, until iIksc i*la
■Btil I Ind penacd all ibeae Aennli Hot me
by tije kinp^s. coudmI, Bad •atitlled mj jmi^
But son I aasner, that if there were any
lUch precedenc (as I shall slicif there was nut ,
one ihewed tn me) to prove this writ lo be
usual; yet it w^tr not niaterial ; for d»w we
are uot to argue wHat hstfa been done dejacin,
lor many tilings ha*e been doDB, uhicb were
never allowed; but oar questino is, what hath
been done, mid may be, de jure. Ani then,
s» it is said in Coke, lib. 4, fol. IS, in Wilton's
Coie, it is said ' Mulcitudo errnnlium non
unrit errori patrociuiuai :' and lib. 4, fbl. 94, in
Siatle's Case; mullitilde of precedents, unless
they he conflinied by judicial proceedings, in
courts of reKoril, sre not to be regarded ; and
none ol these were ever couiirmed byjutticial
record, but com plained of.
But to give a nore clear answer unio them,
I say that iu iny opinion, upnu view and serioua
raaiUagof all the recunis that have been- sent
|ue on tlie king's part ; fur I have read them all
«*er verbatini, and 1 presume they sent all they
conceived to be material, and I liave taken
notes of every one nf them, and diligently con-
sidered of them, I conceive that there is not
any precedent or record of any sucli writ sent
to any sheriff of any inland county to com-
toand the mnkinji of ships at the chni^e of the
county ; but this is the first precedent that ever
wa« since ilie Coaquest that is produced io tfais
kind.
But it is tma, that before SS Ed. 1, there
have been some writs to maritime towns and
ports, and other towns, at Tendon, Ike. wLere
thfv have had ships and mariners, to provide
and prepare ships, and to send Iheni to such
places as the king pleased to appoint, upon
anyjust cauie of fear of any danger, fur die
defence of the sea and kii^om: and Rreot
reuson, that they having ships and masters of
aliips and mariners, should be al the king's
command^ to bring all or as many as be pleas-
eth for the defence of the sea and kingdom,
being those that hnd the must benefit nf the
•eas, and likely to have the greatest loss if the
•eo itad coast were not daily gnardnl ; and
thuM were appointed uinet cominonly to be at
rtie king's charge, but sometimes upon neces-
sity ihey were appointed to be at the charges'
of the towns and ports adjoining : which I tlnnk
was the true cause of the comptaint in patHa-
ment in 35 Eil. 1, and of the making tluit stn-
lute for the staying of that couise ; for ihere
is no record of any such writs afterwards in
Edward I's time, otter that stntutp to maritime
^ towns, to prepare or send Uiips at the charge
of the towns.
Bat in the lims of Ed. 3, tlicn the war being
between him and the French king in annis 10,
11,13, et 13 of that king, where the .most
.writs Awardcd'to maritinie towns, Io«end ships
U their charges luElicienlly furnished; >wid
those I think were the^principal cause of the
Btakui^ of tbe ecstuie of 14 Ed. 3, cap. 1.
^aA.*ft«c that Jtatot*. no taeb nTiU, dot any
This geaeral nnswer I give to all the reconfc;
and now I shall -take a thort view at ^ik
records that have been cited arxl sentlois^
and leiive them lo the judgment of my loi*
and others, if any of them prove these wjio
usual and li^al.
6 Job. m. 1. 3 Joh. ra, 3, 14 Job. m, S, II
Job. m. T. Three of iheae are to amst and
make stay of ships, that thev ahuuld noi p
out of the kingdom, but to 1* read^f" >«
king's service; and the other was tobrinjshifi
of piirticuinr towns to the mouth ofllieTnanc^
for the king's service.
19 Joh. m. 4. A commission to guarrf lie
seas to Job. de Mnrihal, and to the sheiif "i
the ciiunty of Lincoln, and to all utliinio ki-
te nd liis com mauds.
15 Jiih. Writ to tbe barons of tliednqo^
ports, and divers other towns, lo have """
ships ready for the king's service.
14 Hen. 3, m. 14, -14 Uerr. 3, lO. 5. A wis
ID the bailiff of ?ortsraouih, to prep"" "*
pulley. A commisiicjn to tlie sherilf of Ro-
chester, and another to the shtriff of Kent, i»
cause all men to be in urras in thnl coonif, "»
lo assess them what amis thev should liiid'
48 Hen. 3, m. 4. A writ" I O ihesl^nff"
Norfolk, commanding him to cause tlirm if-
pointed to attend all the coasts in thai cowiit,
bIio having served 40 days intended lo iefoj'^
that ihey should stay eight dnys loi^ger I?
reason of the danger, and longer, if nrol ""_
? Hired. The like were sent to ih« ifaeri^ ri
uffidk and Essex.
48 Hen. 3, ro. 3. A writ to tbe majw"
Bedford, commanding liiiii to provide fw ■"
expences of ibem tliat were sent frum '''•'"'
for' the guarding of the seas ; yei it is hat W
eight days more after the date of <bc ""*' ,
48 Heo. 3, m. 3, A writ lo the oW "
Em«^ Noi&lk, aud Svffolk, aKwinud »*
L.U.., ..GooqIc
1169] ^ATETRIAXS, liCnrnta I. l<iS7.~in the Case t^SSp-ItfoiKy. (1170
tend fur the gutrdingof tlie.sen-coBits, reciting,
tbat the king had uppoiuttd T. de Id. ' Custod'
* marls et pati' maritim' ' witliin tbeir couoiies,
commanding them to KisiitC him, itcid to pcrfunii
therein what hi' required.
48 Ucii. 3, ni. 7. A writ to the slieriff .if
Cambridge aiid Iluntiugdon, to cammaud alJ
men of ihoiie couniie*, able tu bear nrnls, to
come to tlie Lion to London.
25 Ed. 1, m, 5. A writ to those of Essei,
KorfuSk, Hiid Sulfulk, reciting, chat such per-
sons were appointed ' ad cuitod' maritim' in
those parts, coinmnnLdbg thcui In attend tliem.
jVnniher to the slierifis of Norfolk and SuffoJk,
recitin)!, that certain con stnbles were appointed
to assess men at arms, sutiicient for U;e gaard-
iog oftlieiea-coaits, commanding them to dis-
train and compel them nsseMMl lo go.
Hi Ed. 1, ID. IT- Write to the sheriffs of
lancoln, York, and Nonhumberlaod, recitin;,
that lie hud commanded '.A. de B.ad congr»and'
* et capiend' centum naves,' between Leigh and
Berwick, ' et ad hiimincs potentes' in eisd'
pouend',' commoudii^ them to assint bin
34 Ed. t, rot. 62. A writ out oflhe Eiche-
quer to Adam de Gucrdo ' et abis eardianis'
of the sea-coasts in ibe county of SoUlhampton,
to distrain ilie alibot of Heading, to tind hones,
which he was assessed at for ihuc service.
34 £d. 1, m. 16. Writs to all arcbbishops,
bishops, earls, &c. in the couotiei of Somerset,
Devon, and Cornwall, to attend with their
horsemen and foolmen, for defence of the sea-
coasts in those parts, when they shEdl be re-
quired by the gunrdiin of those coasts.
81 Ed. 1, m. 71. A writ out of ibe Eicbe-
rcr, directed to all archbisbops, bishops, earls,
;. in the county of Norfolk, reciting, that
Peter de Rutlin was appointed ' od custoiliend'
* partinm maritiniar* iUarum/ commaading
them to aasist him,
34 Ed. 1, rot. 7S. A writ out of the Ex-
chequer to the sheriff of Berks, recitiiig, that
the sing was informed by Adam de Grid|n,
. guardiaa of the* sen-coasts in the county of
Soul ham ptoEi, that tliose men in the county of
Berks, who were assigned to come to the de-
fending of the sea-coasts in those parts, came
not as they were named, commauding tn dis-
train them, and compel them to come and to
do the service. — The like writs were then
•warded to the sheriffs of Wilts and Sootbaiup-
ton, &c.
94 Ed. 1, rot. 81. A writ to the b&iliffs of
Great Yarmouth, recitine, that the king was
informed, that certain in Flanders and France,
in a great muliitiide, appareled like fishermen,
intended to Invade their town, warnins them
to gather (heir ships together, and all their
>nns, to defend theroselies agninst such an at-
94 Fd. 1, inter com'. A writ to all sheriffs
and Uaihffs, Sec. reciting, thathe had appointed
•ome therein named, 'adcongreaaDd'numerum
'Davioni etgiUitrumiDajoruni, Sic' command-
ing the dieriffs in their several countie* to'b*
assisting to tliem tlierein.
34 Ed. .1, m. 9. A writ of Supersedeas to
tlieguardiun of the seas in the county of South-
ampton, to diticliarge Hugh de Ple^s to find
arms for his lands in that county, for guarding
uf the leu, because he was in service witli the
"&..
All these Records are for arrays, and
congregating ships, but none to make or
prepare ships at the charges of the coun~
II Ed. 1, ra. ae. A writ to the sheriff of
Essex to dischar|>e fur the winter tiioe thos*
that stay at the sea-coast, with their arms to
defend the coast ; but commandiDe them to
be in a readiness when they should be again
commanded. The like writs were then awarded
to divers iberiffs of ntaritime counties to tb*
same purpose.
35 Ed. I, m. 11. A writ to the slieriff of
Lancaster, reciting, that whereas the king had
fumeily commanded him to go to fll the parts
and towns where ships were, commanding the
baihfis of the porta to hnve all the ship) of
burden of 40 tons at Winchelsea, by inch m
day; nnwcommandeth the sheriff to see them
made ready, and sent thither accordingly.
Ibid. m. 13. Tlie like writs directed to th*
sheriff] of Lincoln, York, Northumberland,
and Cumberland.
Ibid. m. 14. The like writs directed to nine-
teen other purls and towns in other counties.
S] Ed. 1, m. SO. A commission to send
away men at arms in the county of WtstmoT'
aiEd. l.rot, 77. In theeicbequer, shemd
by (be defendant's counsel, writs went to ■»-
vera] raaritime towns apon the sea-couts, and
other towns where ships were usually made, to
make shins and gallies ; and that the king will
allow and pay fur them, when he knowed the
charge thereof.
Fat 9 Ed. 3, patt 2. A writ to all men i»
the townsupoo the sea-coasts, and ports nf the
sea, between Southampton and Falmouth, re-
citing, that the king bod appointed John de
Norton to nlake provision for a navy in .those
towns and ports, at their charges, he command-
eth them lo pertbrm what he in that behalf
shall require.
Claus. 30 Ed. 3, w. 8. A writ to the bailitF
of Yarmouth, reciting, that whereas the king
had commanded all the ships of [tie burden of
fifty tons, from the Thames mouth towards (be
West part), to be at Portsmoiuh tuch a day,
&c. and ibey had sent two ships : that the
masten and mariners complained, that they,
oonld not serve without oi^as, and therefor*
appointed them to send them wages,
80 Ed. 3, m. 10. A writ to the bailiffs of
Yarmouth, commanding them to send all tbeir
ships of the burden of thirty tons and above,
to Orewelt ia Suffolk, with double Uckling,
victuals, and other things i^ieceMuy for on
month. >
4r
mi]- STATE TRIALS, ISCn.I. 1637.-
The lite writ* nl tlie same time to other
towns, ti> the number if four and thirty.
30 Ed. 9, m. 10. A writ to the mayor of
LnndOn, to jimvide tliree ships fciili men and
■mmaiiition to gn with nine shijis of Kent to
guitrd tbe ten-consts.
15 Ed. 9, m. 15. A writ to the sheriff of
Norfolk, commanding liioi to niirii all barons,
lianncri-ts, knivhis, and others of llint countj,
(0 attend the king at Coventrj-, nt sucb a dajf
to |o iviih the king.
15 Kd. 3, ni. 15. Writs to the sberiffis of
Norfolk and SutTolk, commanding them to
•irest all barons, hannerets, knights and
Mquires, who were ronunandcd to attend tbe
king at Coventry, such a day therein named,
aniTcame not, to be before Che king and hii
council to BDSHet it. '
The record saith, like wrili were tben
awarded to djrers aherifli of other counties.
Iff Ed. S, m, 13. A cotnnihNon to nrray all
|«rM)DS between tbe ages of aiiieen and sixty,
with BnD3 coDTenient, to come <to the king,
when thejshallbe required.
19 Ed. 3, m. 6.*A writ to the archbislMp of
Canierhury, commanding him to array all his
Mrrwiu and families, to. be readj to defend
the kiDidom, if aoy iniawon should be.
Thehke writs nt that time to all the bisliops.
9 Ed. S, m. 03. A writ to the nutyor and
bailiff of Southampton, cororoindiug them to
cause all tlieir ships of the burden of forty
tans, and abovr, to he furnished with men of
arm*, and viciuili, ready to delcjid ilie land, if
any invasion bliall happen.
Scot! 7 Ed. 3, m. Id. A rotnmission toHugh
Courtisey, to RUard tlie sens in the countias 'if
DeroQ and Cornwall, and conimaDding all
other* to assist iiim.
\0 Fd. S,Ta. US. The lite ooumiasion to
Hugh Conrtney, fot guaiding tti« seas in the
•ame counties.
Ibid. A writ to BartholoiDew de Insula, for
ctaitodj of tlie lea-coBst in the L-ounty of.Soi<Hi-
ampton ; and therein in ti command tn John
Ticliborne, and others for the county of South-
ampton, and to Will, de Parshtre^ and otliers
tin the county of Berks ; and to Job. Mare-
dltti Bud others, for the county of Wilts, to
•troy men with arms, and to hnve them in rea~
dinrss to defend tbe coasts of Soulliampton.
Scot. 10 Ed. 3, m, 2. A writ to Will. Clinton,
ptardian of the Cinqoc-ports anA others, to
Utrvey all the ships of tbe Cinqoe-ports, and
other ports from the month of ilie Thames to
rortsmouth, and to cause them to be fnmished.
iHth arms and victoals for 13 wttks, fhnn the
thne thby shntl go from Pensmouth.
Scot. 10 Ed. 3^, m. 3. A writ to tlie mayor of
Wincheltea, to cause ships appointed fbr that
town to be furnished with mAi nnd anas, and
rictiinls, and other necessaries for 13 weeks.
Scot, lo Ed. 9, tn. 16. A writ )(. ibe adininl
of the fleet from the mouth of the Thames to
the west iMTts, to keep upon the seal the ships
«f tbe Cinque-port*! and other ships arrested to
-Tilt King again'tt John Mampden.aq. [U'^ '
defend the kincdom against attempt oiun in-
vasion.— Tbe like writ, was thi^n to tlie tdmint
of tl>e tiect, from the moetb of the Tbsmnts .
the north pnTts, with tbe like commuid to bsld
the ships losether upon tlie lea.
Scot. 10 Kdw. 3, 16. A writ conimaDdisf
the ships of the ports of Ireland to be MM
hither to guanl the seas here.
10Ed.3,m 19. A writ to the bailiff of Yir-
muuth, to cause the men of that town to ois-
trihute to the chnrgcs of (be ships and awn, ud
victuals, tent from tbencefor the defence of ik
kingdom.
Seot. 10 Edw. 3, m. 53. A writ to illtht
bailills of liberties, and men of 3uulb-Wsln,B
have one ship riding npnn the sens for dtfinct
of those parts. — Tbe hke to ihe men ofSotit-
Wales.
Scot. 10 Edw. 3, ID. ei. A writ to Ik »
niyers of men fbr the county of Berks, to onr
pel thrmofthat county, assigned and ssKMd
tbr (be keeping of the sen-coast in the counijsf
Southnmplon, to go to Portsmonlii by s ds;
therein appointed.
Aim' 13 Ed. 3, m. 18. A commissiop IMi^
ing, that the king had appointed all ths itifl
from the muuth of the Thames noTthwsnh,lD
be arrested, and to cause them lo be furnisM
with amintmition, men and vi[:tuals, and tsU
brought to Yarmouth; and that the ncs of
Lynn refiiscd to contribote to the etptatx <i
the charge of the men sent in the ship (mt
(hat town, and the furoisbintiof tliat ship; ind
therefore commnnds the commissiunen tbtnia
named, to nssess them thnt refuse to conlrilu:'
and distrain ihcm.
Aim' 12 Edw. 3, m. 13. The like to compd
the men of Bardesey to contribute for the n-
pences of the men of tliat town,
Claui. 13 Edw.3,m.IT. Ttwliletocmqid
the men of the <:Dan(ies of Surr^ and Suen,
to ijontribiite to the eipences of the mts «'
those counties, that did attend fbr the giianliii{
of the <e(i-coast9 in those parts.
Vase. 1? Edw. 3, m. 8. A writ to ill sr*
bishops, bishops, &c. and to the sheriff of Kciu,
and the barons of the Cinque- Ports, and sll
otliers in that couoty, cummaiiding them tabi
assisting to J. de Cobham, to wfom the cw-
tod? of^the sea in those parts is conunittd;
ana to defend those coasts agaiost any fa'°P
invasion that shall happen.
Aim' ISEdw, 3, m, 10. A writto thernsjsj
of London, redting the danger of invsaion,!"
cnmoianding^to shut up the gates at tbe nUf-
side, if the enemies appinach.
Aim* 13 Edw. 3, m. IS. A writ to tie
bailUrofYarmooth, reciting that he bad bifli*
writ commartled four ships of war of thai lo"J
to he made ready with men, ammunition, sfd
victuals for three months, at liie chntga of tM
towa, to he brouglit to Orewell, and thst dirt
failed to come nt the day, to the great peril w
the land; therefore commandetli tbe bailiff u
compel tiiem nt another day ilierein preSit^
to be at the same place.— There it is set de^
that the like writs wen awwded to the biiW
4.173] STATE TRIAUS, IS Cuaulm I. 1637,— w tht Cat ifShip-Mtm^. tn?^
The like writs to all older bisbop» in t)v |Ling.
of
iteen other towBs, fyt lending ihair
sDipa, DtingcbargL-d tome of them for one ship,
aod some Inr two ships. ^
Claiu. 13 Edw. a, m. 38. A Superscdens
fur the abbot of Romse;, for being charged triih
•rmi for guarding the coaita Id NortbllL, for bit
lands in Norfolk, becaiue lie wai bj toniinind
attending with all his forces iii the count; of
Huntingdon, tbr the safclj of theM puns.
Clitus. IS Ediv. 3,111. 14. A Hrit ofai
■edeas to the nmytn of annt in tlie cuuiity of
Oioii, to disGhurge John Hauditi to Mne there,
beciUM he served in Wilts.
Claus. 13 Ed. 3, m. 14. A writ to tlie ar-
rajersaf arnisin the county of Wiki, »bich
odIj concerilil^ (he paj'iueiit of loldieiB naj^es,
who then aiteaded lo guard tlie seo-consts.
These being all the recordi shewed me, it
appetueth thmt there were ito irriu tuuiiig oat
in those times to tinj sheriff) of inland counties,
or maritime counties, to make or prepare ships
upon anf occasion nliBLioever, bvt only to
maritime towns, to send their sbips, or prq>arc
their ships, at iheir own charges.
The records shewed me since 14 Ed, 3, do
not shew anj writs to be swarded to an; mari-
time town tn prepare shin at the cha^ of the
towns, except the recortls of 1 Rich. 3, and 1
Hen. 4, which I bare before answered; and
thej since that time shewtd unto me, ei.cept
■uch as I bare mentioned ia m; argument, are
these;
Soot. 10 Edw. S, m. 14. A comnuHion to
Nicholas de Carlbpe, to Brrny tnen to resist
ihe Scots.
Ibid. A writ to the mayor of Yerk, to array
rlU their men to be ready when they shall be
required.
90 Edw. 3, m. 15. A commisuoQ concem-
\a% the arrays of men in the counties of Derby
vikI Nottin^hun, and lo puuish tlicm that
£ome not when the; are warned.
But' Franc' 21 Ed. 3, m. 31. A writ to the
anayers of men in the county of Sauthampton,
to aiscbBrge the abbot of Battel, for finding
Vois lui defeiKe of the aea-coasl* there.
Franc' i5 Ed. 3, bi. 20. A comcaission to
John Bodiughnm, for the custody of the port
and maritime parts in Cornwall, and to array
all nan to be in readinest. There is set down,
tkat the like cormnissiou is to others in several
other counties.
franc' 3G Edw. S, m, 5. A commission to
Uie eari of Huntingdon and others, to have the
jcustod; of the ports in Kent, and to array men,
and to set up beacons; which il the lirit I
ob&erve of this kind.
Franc' 4d Ed. 3, m. 34. The like commis-
Mon tlieo ta several other persons, to array men
in seittal counties, as Warwick, Uuin, Berks,
■wd Buck*.
A writ to the arclUiisliop «f Cantfrbury, le-
Cttu^ the danger of iavauou by the French, to
htn the church and kbg^lom^ couuoandiug
turn lu arr«y all lus clergy in his dioceii, and
10 be teaAj W £0 with mt king'* forces, iicj— '
Franc' 50 Edw. a, ra. 4T. A writ to tbf
nrrayers of men in the comiy of Norfolk, and
tn the sheriff of Norfolk, commanding ihem to
cotutnand all greul men, and others tiiat hayf
mniisious upon or near the sea-cr.asts, to resort
to ihcm Aitli (dl ibeir families, for ilic detcncp
of the coasts. — Tlie like to the nrrajers and
sherids often other mati lime cnunties.
Scot. 99 Ed. 3, m. 13. A coitianssian tn thy
bisliup of Durlum nuil others, to irraj inei) ii|
Durham, Cumberluud, and NorlliuiDberlaiid,
to resist the Scots.
Franc' 40Edw.3,m.3l. A writ to Wilijani
Zoocli and others, to remove witli all their
fumilies to ihcir liouses upon the sea-coasts.
iVo(o, That all the records are fur.srTayiaj
men, und none for prejiuring sl>ip.i.
1 Rich. 3, m. 7. A writ to tho bailiff* of
Scarborough, because their town was upoo the
coasts of the aeo, and in danger of iavasioo,
carefully to look to the custody thereof.
Eod' rot' Bi. IS. A writ to the mayor and
hailib of Oitbrd, to repair the walls of tha
town, and to compel tboae that had lands thera,
to contribute to tM eapeuces thereof.
This record hath been much urged by Mr,
Solicitor and Mr. Attorney, that if the king have
such a power to comiMiid the walls of a town
to be repaired, much tnora to commaod ships
to be made, which are the walls of the sea,
aikd consequentlv the walla of ibe kingdtim.
But this is clearly answered j fat that it is
but a private town, and that which hatli been
formerly to wnlled, and for defence a|id salely
of the town; and none were to be charged but
those that Ikad benefit thereby ; and so it prov-
eth nnthing tp the cose in question.
Eod' rot. lu. 43, 'One writ to llie sheriff of
Kent, and another to the sheriff of Essex, com-
aaadine them lo perfarm ail ordinance maije
by the king and his council, for setting up of
beacons, and keeping watch about tliem.
8co(. T Ric. 3, m. 8. A writ to the an^
bishop of Canterbury to commimd all hisdeigy,
between sixteen and sixty, to be arrayed and
both horse and foot, according t{>
their qualities, to defend the kingdom.
Franc' 11 Ric. S,m. 13. A writ toserjeants
arms, to arrest all ships of war in the port*
of Plymouth, or Dartmouth, and other p<M'ts,
in the county of Cornwall ; and to bring theqi
lo Hunkshooke, to go with the king's majesty's
Id tite SMiie roll, diven other writs to diTeiv
other sberiffs at arms, to arreat the ships in di-
»er3 other ports.
Scot, ei Bich. S, m. S. A commisuon (a
the duke of Albemarle, to array raea in the
West-Marches, towards Scotland, to rmist the
"wts, ■
Rot. Vi^ 1 Hen. 4, m. 11. A writ to
the sheriib of Derby and Nottingham, reciting.
That tb« king cert^oly understood that tbp
Scot* inteiulea wixb a giwF power to iotadf
1175] STATETRlALS, ISCh.L iGSl.—VitKiiigaffiiMiJokiHm^da.a^. [IIW
the kin^om ; coram iiii ding ilicm t» proclniin
ID all parls in their counties, TLnt all men l>e-
tnren sixteen and si^ty,'iihoul<I put [bciuselves
into »ran, competent Recording to thctr de-
grees and qualities, to be readj upon t\yi) dajs
xmtming at any time, to defend the kinedom.
The like writs were ilien directed to the ihcrifis
of Lincoln, York and Xjincnslcr.
Clan*. 1 Hen. 4, in. 13. A writ to iJie arch-
bishop of Cunlecburj; * Sutis inrormati «atis
' qufliiter ininiici mei Fraticix et alii ubi ad-
' hterentes, cum magna clus^e naviuni, cam
* magna multitudiiie armatur' super mare con-
' gtft^^tot' diversas villas per costerum regn'
' mei iniadere, et nos et regnuni meum di'S-
■ true re, et eccleaiam Anglicanara sulivertere
' inCeiiduiit et proponunt ;' thereupon cum-
mands, That the clergy in ihnt diocesa be ai^
rayi'd and armed, and to be readv to go ngiiinst
(he enemy. — The like wriis tu all other bishops
in En^lHod. .
Nala, AUhaut:h this great dooger be men-
Luned, yet no commaiid to prepare sliips.
Pat. 5 Hen. 4, part 2, m. ^8. A commission
to Thumas He Morley, and others, atid to the
iheriffs of Norfolk 'and Suffolk, aod to ibe
bailiSs of Great Yarmouth, reciting, ' Quod
' cum inimici Francize, Scotiz, et alii sibi ad-
* hzrcntes se obli^at' magna poientiH armai'
' aii^r mare in ttstai' proiiiu' iulut' ordinaTer'
' et intendnnt reg" invadure,' &c. Command to
•uriey the town of Yarmouth, and fortify it.
JViffa, Here also, tbougli such itreat danger
and distiiqcaol'time, yet no. writs issued
to any counties to prepare ships.
Pnt. 3 Hen. 5, part 9, m. 3r. A commis-
sion to army all men at arms in the West Hi-
diiii; iu Yiirksliire, to be ready to di fend those
partA. — The like cumniisiions to others, in nine-
teen oiber several counties.
Pal. 13 Hen. S, m. 10, Pat. S9 Hen, G, m.
tl. Pat. 39 Heu. 6, m. IS. Pal. 39 Hen 6,
DI. 1. Commis'^inns Atr arraying of men tor the
defi nee of the kingdom, if invasion shall be;
and lor repressing of Kbcli.
Put. 10 Ed. 4, m. IS. Commissions (o Geo.
duke of Clarence, ct al* to array men fjr de-
Par. lOEd. 4, m. 13. A commi^siol
lord Hownrd, lo he captain of all the
Pat. 49 Hen. 6, m, S'i. A comnii-'i.m to
marquess Mouniag > e, to array and put in arms
all m( 11 bcjond Trent.
Pat. t Hen. 7, part 1. A commission to
Richard Fiti-llugh, ntid others, and to the
sherilT of Yorkslirru, to ariMy and cause lo be
armed, all able pcrs'ms, abbots and otben, to
be ready (o di lend the kingdom.
1 Ileii..?. pHTi 1. A (vrit to the sherifis of
Korf.'lk niiH Suffolk, li proclaim in all parts in
tbo»e ciiuniiiS, for thjt there was likely lo be
»y.ca war lietweeii Charles king of Friuice nnd
Ihe king ot the Roman), and great naTici are
pn-pated on either side; commandi. That
watch and word be kept, and beacons kept to
4 Hen. 8, part 3. A nrit to the sheriff oT
Kent,, commanding him to proclaim in that
county. That the kinp being certainly infonned,
that the French king had prepared a grvst and
strong nivy, fumisbed with men of war, lo in-
vade t)ie kjDgdom; therelore ctnum^Ddeth all
men between tbe age of tiiiteen and tiity, to
put thenuel*M in arms, to be ready to deiend
the kingdofa at an hour's warning.
' 11 FJii. Commissioners went to take a riew
of all the horses in England fit for service, and
to survey all the arm:, Co have them all pnt io
readiuess, as necessity should require.
Now it appearelh upon view and encuain^
lion of all these Records, most of ibetn bei*(
cited by Mr. Solicitor and Mr. Attorney, in
their aereral arguments, then are none of (hem
to prove the sending of any such writs to inland
or maritime counties lo prepare sliips; alilioagh
there have been maoy timet great danger ; im
yet any writs lo luarilime towni, after llie str-
iate ol 14 Ed. 3, to charge them to find any
■hips at iheir charges. — Solben I conclude thn
pamt. That I conceive this writ is not nir
ranted by any fiirmer precedent
Now I come to eiamine the point of this
nrii. Whether the same beli-gat and wnrraiutd
by an; former precedcoi : and 1 conceive it if
1. The motives mentioned in tbe ivrit are,
' Qdia datum est nobis iiitelligi,* nhit-h ia na
cerlain information ; ' Quod quidam prvdimes
' ct maris grasantorea," did take ilie knit's sub-
jects, mercbants, and others, and carrinl tbem
into nii^rable captivily. ' Cumque i|)si>9 coi>-
■ spiciinus navig' indin prtepBDinies ad merca-
' ^nx-s nostros niolesland' et reg' nisi' Kravas-
' dum.'— All th<-se, and Ihnsa foUowine, I con-
ceiie are not sutticiiiit motives, and ner« nercr
ill any precedent before to liave a royal nary
prepan d. For the former preecdeiits ar«, that
grcar princes in open time of hoitility had pnv
vided )!reHl navies with ammuniiion and aot-
dierr, nith inlenlM invade the kingdom, as ap-
prnreth bv the former precedents : and agaiiut
such prnvi-iFins it was npcessary lo pronde tbe
royal navy, the king's ships, and all the ships
of the kinedom, to he {>Blhered together la
wiihstand iTiem, But to nuikp such prepara-
tions B^in>l pirates, it was never put ID any
"rit before; for when pirates infested theseM^
they came a! il were by stealth, to roh and to
do mischief; and thej never dared appear bM
when ihej may do mischief, and escape amy
by their swifmesa. ^ut against them, lite usual
course bath been, (hat tlie admiral or his de-
puty with some few ships have secnml ih«
coast, and noi lo emplnj i^ whole navy. And
this appeitreth by a record, 95 Ed. 1, to. 9,
William Leighhoum the admirai was appointed
upon such an occasion with ten ships to lie
upon the seas, for -the snfeguaid of the nte^
cbutti and tbe usual practict hath be<B,«rti(B
o fear of ttie loss o:
the kiiijiiloni ahoulrl provide shipi against tliein,
S. I'lie commnnJ ol' ihia writ u to provide r
sttip uf 450 loiis It the charges of the countv,
furnished with ' " " '
1177] STATETRIAI5, 1$CharlesI, WJl.—mtlx Ccue(if Shrp-Monitf. (1178
But CO clear all doubts, the exprcM ataiiue of
la Edtv. 3, cap. 7, is, Tbnt no men of arms,
hobb«llcn and orcliers, chosen to gi) in llie
biug'swrrice out of Eiii:taiid, shall he in (he
i-ian's WH|e3 froin ibc lime they go out of the
founiiei where lliej were clioien, uuiil Clicy
come iienin,
19 Hen; 7, cap, 1. Those that had any
gcaiiis i^f lands fom the Ling; and It Hvn. 7,
cap. 1, those thai had an; c&ce* of the grant
of the king, are to serve tlie king in his wars :
but in bolli it is appointed, ihey shall Inie
wages frorp the time tiicy shall come from their
houses, uiitit they return.
2 & 3 Edvu. 0, cap. 2. It is narrnied, That
no captnio receiving soldiers serving by sra or
land, shall receive ^tny waEes lor mure soldiers,
or more time than they «ha!l sene; and sIidII
enter [he days ql their t-iitering into wages, upoD
Alt which reciirds and ststutes do prnre,
that tlie soldier* should he ri the king's wages ;
therefore the command for soldieis wnges for
twenty-six weeks, when ihey gp from Ports-
mouth, is illegal, and eipiesiTy Hgainst tliese
statutes : and so the anessment tiein^ entire,
as well for the wages, as tlie other charges, I
hold it to be cleaily illegal, and not to be de>
ma tided.
4. That tlie command of this writ tt^tho
not legal, nor warranted by the precedrnls:
for the precedents are cuiunioulv, that assess-
meuts for contrihutiun, for makmg or setting
out of ships, have been by coininissioiiers,
which by presumption had knuvi'ledgi- of such
matters, as commonly sherilTs have nut. Also,
this lenvelh to the sberllT ton great n power lo
value men's estates, as to Jnhiiiice whom he will,
favour whom he will.
s impossible for theni to do for the reasons be-
fore alledged, and lhvrer<ire is illegal, and n^ic
warrantiibleby any foimer prtcedent.
3. The couimand of thb writ to find waives
for soldiery fcir 2fi weeks after they came to
Portsmouth, when they ate out of thieir county,
and in the king*s service, is illrgal ; t-eing
Bgninst the course of precedents in divers times,
and against divers express statuKs, and this ap-
peareth by divert records.
15 Johan. In the writs of summons of the
tenants Ify knights service, it is espresslj men-
tioned, tliat after forty dayt service, for so many
days they were to do scn'ice by their tenure,
tlier should he sal isfiednijf/cnc riot regit.
Pasch. SO Edw. 1. Amongst the writs of the
eachequer it is there set down, chat the footineu
of Cheshire being liXK), who were appointed
to go for the defence of I he borders uf Sc'it-
laud, would not stir otit of their counties witb-
ODt wages; ^d there it is set down, that nne
therein named was sent down with mon^y to
pay the said footmen.
Mich. 36 Ed. 1, inter Bria' irrot' in the ex-
chequer, by reatoii of the bmsion of tho Scots,
many thousands of soldiers were taken from
divers parCsof tbekingdnm odvoJiarffii. And
there it is mentioned, tbnt clerks were sent
down with money to pay the soldiers of several
counties their wnges.
SO Edw. 1. In the exchequer in account,
the wages for land soldiers for several counties,
ond the wages for mariners, are let down, wbit
(he wages that were paid came to by ihe'day,
And by the week, both by sea and by land.
Trill' 31 Ed. I, inter Brevia in the excbe-
qner, the wardens of the marches of Scotland
Bignified to the barons, that the men of Cum-
berland and Westmoreland, appointed for the
(tefence of the marcheh, would not stir out of
their counties without wnges j whereupon order
was given fur wages for them.
19 Edw. 3, Com* issinns went out to pay
soldiers, who sen'ed nut of the several counties,
for defence against Scotland. '
Hir 2 Edw. 3, rot. 16. in the exchequer;
It was ordered in parliament. That whereas
•ome soldiers had received of some of the kind's
oBicers, money for their wages, Ihey were thin
to give bonds for repayment, and that chose
bonds should be nil- redelivered.
1 Edw. 3, cap. 5. That no man shall be
compelled to go nut of his county, but where
necessity required by sudden coming of strange
enemies into the county; and Chen shall be
done, as hath been done in times past ; which,
I conceive, i« to be at the king's wages, when
any are out of iheji couoties.
5- That the power to the slieriS^ and mayors
of towns, &c. to imprison, especially as it is
uied, i) illegal, and eipres^ly ai^ainst diicrs sta-
tutes, for it is provided by Ma|t' Ctiar' cap. 'iO,
' Quod nullus CHpialur vel impi isonetur, nee
' super euoi mittimus, niKi per judicium purium
' suorum, vei per leceni ten*.'
Also, 5 Edw. 3, cap. 9, Tbnt no man shall
be attached, or his goods seized, contrary to
iheformof Mag'Charl'.r-Also, hy tliestaiuta
tnade 37 Edw. 3, cap..l8, it is ipciced. That
by that Grent Charter, none should be taken or
imprisoned, but by due process of law ; yet by
col'iur of this writ, the slieriif may imprison any
person, yea, any peer of the realm: for although
peers ore not to he arre-ted upon ordinary pro
cei-s between party and pnrty, as it is resolved
in thetouniessofkutlnnd'sCase, in Coke lib.
G. fol. 32, yet upon contempt, and upon pro-
cess of contempt, which is always for the king,
any peer may be imprifconed, as it is reso1v«l
hv all the lords, and all the judges, in the Star- .
Ch:<inl>er, in the enri of Lincoln's case: anil
s<i the sherilT, by ci4our of ihbi writ, may arrest
any peer, as for a contrmpt in not pnying. But
by' the boot-«ise, 8 Edw. 3, fol. 8, it is resolv.
ed. That a writ to imprison otic upon sugget-
1179] STATE TRIAI^i, 13Ch. 1. l637.— The King asainttJolMlIaiii>dai,a^, (UbO
tion, before h« be indicted, or nilboDt dae pro-
cess of Uw, wa> illegal. So for th« clause, I
hold this writ to be illegal.
€. The lasi clause of this writ u, That by
colour or ihia nrit, no oiore should be t^tbercd
than will be lu^ieat for the necosarf eipence
of the premises, and that none whu shall jevi
an; money tonardi these coutributiaas, sUnu
dctaiii the saoM with ihem, or employ the same
to olherunesjaiidif more than did suffice nere
collected, it sl>aald be repaid amount those
that paid, afier n rateable proportion. BuC u
the course i> tateu, it is not te be perrormed :
for no ship, nor tacktin^, nor ammunition, nor
' men, nor w^es, nor victuals being provided, it
is not to be known, whether more be gathered,
or less ihau would suffice : anil there being mo-
ney gnthored, it is of necessity either detained
with tba collector, or the sheriff, or employed
to other u»es than are ippoinied by ibe writ;
to tbe writ is not performed : and tha money
assessed and collected, is not duly paid nor
coliecled ; and ttie money assessed and unpaid,
cannot be duly demanded.
7. Admitting ths- writs were legal, and the
commands therein legal, yet the assessment, as
it certiGeJ, i^ not sufficient to cfaaigc the defeii-
daat 1 lor it is not certified, that any ships witii
ammunition, qiid men, were prepared ; and
tiiis is a year after ibe time it should have
been prepared and sent to Porumoutb. And
if it were not prepared, there is no cause
to charge the defendant; and tlMt not ap-
pearing to be dune, it shall b« conceived
not to be done. — For if one be charged, in
cousideratiun of a ihini; to be done, before a
certain time to pay a sum of money, if tbe thing
be not performed according to the time, niNie
can be charged for not payment of tbe money
after tbe time is past : for it is in nature of a
condition precedent, to have a duty or tnm of
moneyto be paid after tbe coudition perforny.
ed ; uoil (here, he that will have llie duty, niual
shew that the condilion is perforgied. — This
appeareth in the cBseof 15 Hen. 7, and Coke,
lib. 7, (bl. 0, Ughtred'ii case. And therefore,
if the sliips be not prepared accardiog to the
writ, nor money einployed for pceparing a ship
for and in the name of the county: thai every
one ibat paid any money, either voluntarily as
in obedience to the writ, or compttlsorily upon
distrem, mav demand their money i^ain of the
•herifT, or or them that received it: for at ibey
paid their money, 9
St be dispoccd o£, and
tnand whatsoever, although
peat-aeel : for tbe command being under the
great^eal, lo prepare and furnish a ship toaach
a purpose as in tile writ is Eoeotiaaed, and they
jwyiiig it to that putuoM, it cannot be other-
wise disposed, although it be more for their ad-
rantage; for private men having jnteiwt thftw-
ID, tiiat canoM be taken frooi them, nor dis-
pensed withJ. Therefore, in Coke, lib. 7, fol. '
87, in the Cose of Penal Laws, it ie resolved, !
That if tbe penalty appoiMed to be ferfeieei ;
upon a penal sutuM, he grta. to tke poor of '
the parish where the offence is comaitted, d»
king cannot dispense with the penalty for that
offence, because the poor have an interest
therein ; but if the penalty be given part to tfaB
king, and part to the poor, tlw king may dis-
pense with bis own part, but aot wiih tbe pan
of ihepoor.
Object. — And where it hath been said. That
it is by way of accommodation, because the
country cannot well Lno-v liolv ta provide in
content, and perhaps with more cbnrKC,
Respons.— To this It is answered. They miMt
do it at their peril, if the writ be legal ; and
then if it be done, they shall have the benefit
thereof. For as my brothers WeUon and Berk-
lev have both agreed, if tha ship were made
wlien (he service whs done, the oounty tar
which it was made shall hai'C the beoelit of the
ship, ammunition, and ticluals, and of the ter-
vice of tbe men, being made more expert
against anutlier time ; and the sliip may with
some easy charge wrve again, and ootbing lost,
but the expence uj' tiio victuali ; and the ki;^
dom shall be so much tbe more sireugtbened
by having so many ships made or prepared;
and tliey may have account of their maucy Low
it was hestowed ; and if any surplusage be ga-
tliered, to have it restored. And that the b«
is so, thai if tbe money be received of tbe
county, und not employed accordingly, the
party so receiving it, and detaining it, or au»-
employin|( it, is to pay a hue to tbe kiug for lb*
same, and is accountable for the utouey, a|^
peais by two records.
Tbe one io Hill. 16 £dw. 3, rot. S3, B. II.
where two soldiers were indicteil, fur tbat tb«7
taking Hi. a-piece towards their amu, and tlw
bringing of them to the place where they avere
Appointed to serve tbe king in Eni^aad in bis
wan, they went not, but larfied EtiU ia tbeir
bouset, and retained the armour and tlie oaoaej
which they bad received for thai puqioae.
They theregpon bdog convented, pleaded Nat
Guilty; and the one was found to guin the ser-
vice according to tlie appointment, lO lie was
discharged : and tbe otber was fotwd, ihM be
rcceiyed the raooey, and went not to do tbe
service, nur resco^-ed the arms nor money ; %ad
thereupoB he sraa committed to the prison, and
paid to the bing a fine, and {oBiid BHretiei U
pay the money to tbe tuwdred from whom he
lud received it,— The oth^ was Uill. SO Ed- 3,
rot. 37, B. R. There two higfa-coestabka Bern
indicted, for that they, 5 Edw. 3, had reoeiv«4
6 Barks of itie towns in their iiimdreda, Xa set
forth Boldien, and had not sec them tortb, b«l
detained the money ; whicb they daiyiof, it
was tovnd UbaC they bad receiyed the mone*
for that purpose, and had disboned 10*. Gi,
thereof towurdsthe Betting forth of aalilienjbK
had retained 381. fid. and DM disbuned it :
thereupon they were fined and impritoaedsUd
afienwds eotfifed ti^Mi steettea to pay (he
Moaey they had retained uadisbaned, at tbe
next lime tbe king cenuMnnded loUiers £raB
thnae parts. By both wbicb record^ bcief for
offences dgne w laog hefor^ it nypMirlh, that
IISI] STATETRIAI£, ISCbauuI.
those that have received Tnonej iif the country
m prepare sUps, and not emplojed it accard-
ingly, ere niiswerable to the king and hia suc-
ceMon, to piy afine rDrmis-emptajTneatof it,
■ad are cliarg^able to those of the cDunty of
ri direcied eo tlie two that
tberiflii at the time of the niseasment, and not
to the sheriff that was at the time of the Cer-
tiorari awarded, who is the only itntnediate
officer to return the writ!, iit not legal; for it is
the fint that liatb been nen of that kind : for
ajl writs are directed to tome immediate shertff,
requiritie him'to demand of the former slierifii,
what they did upon the former writ ; and they
■re 10 return to him whsf beth been done, and
he to (eturn the same to the court, whereunto
he is an immeriiBte officer ; and the former are
Dot any otficera. So the Sci' Fa' ihereupon
■rouuded, I conceive Is not eood ; Also the Sci*
Fa' to wnrn Mr. Hampden < ad ostendenduna
' EL quid pro se habeat, et qaare de prsdict' vi-
' gint' solid' onerar' non debet,' not shewing
to whom, is uncertain, and is insufficient.
Thereupon I conclude upon tlie whole matter,
that no Judgment can he given lo charge the
Defendant.*
The AacvuENT >f Sir WILLIAM JONES,
kniglit, one of tlii; Justices of his Mtyeity's
Court of Kinji's-Beiich at Westminster, in
the Exchequer-Chamber, in tlie great Case
of Siiip-MoNcr.
In Easter Term there inued fordi n Sri'Fac'
and this doth rehearse divers sums of money
assessed upnn divers per<:an5 in tlie county uf
Bucks, for providing a sliip of 450 tuns, with
men, ammunition, &c. lo' attend the kind's navy
fcr defence of the kingdom. And nllerwaids
upon a Ceniorari out ot'Chnncery, directed to
the iiiHriff, to certify tliose assessmenis, end ihe
names of those that made defnult of paytnent,
Mr. Hampden was returned to be assessed at
30t. and kith made default. Upon this return
the king by Mictimui onl of the Chancery sent
the writ, the Certiorari, and the retatn, lo the
harous of ihe Exchequer, to do as Ihe court
shnll think lit. Thereupon a Sci' Fa' oent
forth to the sheriff to summon Mr. Hnmpden
to Eh&w causae why be should not pny the 30c.
assessed upon him : He was returned warned,
and appears and demands Over of the several
writs and Iheir returns, and of the Sci' Fa' r
and upon all ^is he demurreth in law, and Mr.
Attorney hath joiued in demurrer with him.
And my Lord Chief Baron and the rest of the
barons have adjourned this hither, lo desire the
advice of all their brothers of ihe law ; und in-
deed it requires advice, for it is as great a case
as ever came to be advised on before judges.
" An abridgment of lliese Judgments of
Croke, In the. handwriting of Archbishop San-
croft, is amang Tanner's MSS. in tb« Bodleian
1657.-^ thtCattc^SMp-Moiuy. [11S«
I lay it is a great case ; it concerns the king
in his royal prerogative, and the subject in hit
interest, in bis land and eoods, and liberty of
his person. They that have spoken ntready,
and they that shell speak alter me, shall hardly
escape the censure of the people, of some that
hare some understanding, of some pcradventure
that hare less, und of some (hat have none at
all, but speak Becoming to their opinions, af-
fections, or wills. ' Fsjlices essent artifices, si
' per solos artifices judicareuter :' we should be
happy to be judged by tliem that are learned ;
but when it is l^ tliem that understand no^
then it is turned into calumny and reproach.
Some have taxed ihem that have gone, or
will go with the king, as though they were fear-
ful, and went about to captivate the liberty of
the people, and take away their goods. Some
are taxed on the other side, if on tlie contrary,
that they are given to popularity ; so ns I may
tay as the Psalmist, ' Domine, me posnisti in
■ lubrico loco ;' for it is imposiible to escape
th^r tongues, and between those two decks Of
censure f am like to fall; And however I mar
fall with my sentence, with God's grace I shaft
make no shipwreck of my conscience.
I am trusted by the king to display his jus-
tice equally to all, and sworu to dispense hia'
just preroptive, as well as the subject's liber-
tv ; and it we do otherwise than as judges, we
do as false men. IF any man offend contrary
to his oath, he doth forfeit his lands, goods and
tenements. I shiill not therefore for any re-
spect do against ray own conscience ; but de-
scend logive judgmeol, not-regarding the wulry
mouths of others.
The king's counsel, and the counsel at thp
bar, have spoken so largely to this business,
and it is spoken to by my brothers so fully,
that I can hardly Say any thing hut what hath
been said before ; so I will select some few
things, to satisfy my own conscience, though I
cannot satisly any man's else ; whicli I will do
a variety of contestation,
1 anoum nave buoacr very little^ but now ne-
cessity requireth that I must enlarge myself ■
litlle more.
]. I will state the question, and in it put
many things objected out of doon. The ques-
tion is, whether the king of England, when he
perceiveth danger to be imminent to the king-
dom, and a necessity of defence, may not by
his writ send to all counties as well inland as
maritime, to require them, at the chnrve of the
couniy, fur a convenient lime to provide ship-
ping, with men and ammunition, &c. but no
money to come to his pur^e, but the ships to go
to delend the kingdom. The question iiands
not, whether the king may draw it to be a per-
petual charge upon the subject, which under
favour he cannot; for this goeth upon a fear
of danger, which eoniinueth but for a time,
and therefore this cannot be perpetunl; Ibr
when the occasion ceaseth, ;he taxes must
likewise cease. There is a case to this purpose,
39 Hen. e, foL 39, FfotecliOD, Brooke. A pro'
IISS] STATE TRIAIS, 13Ch. L l6S7.—7\e ^tgagahutJolMHar^chi,aq. [UH
rule is, ihe king mny great > ^iroiection (broac
year, aud at lEp yea?» end, renew ic for aao-
ther ycui if tlie ot^isiun requite it, and so ior
ft third jreir; yet lie cannot at the beginning
give a (jrolection for tliree jears togelhpr. So
lu tliis case, though ihe king nin^, upon an
euiFi^eiit occvei'-u, command ship*, jet by
tcnsou of thnt uccnsioa he cannot mdie it pcr-
peiual, tor the occuuun may ceaie.
2. in this caw, I will not exempt the king'f
majesty liiniMdf, ,to bear a part uf the burden ;
the liGRd and bud^ must go together, he miut
join iTJth his subjects in the ilefenca of the
kingdom.
3. The question is nut, whether for a foreign
nar be may comninnd rhis charge ; it must be
only in delence of the kingdom in case of im-
4. It is a-it whether the king may lay this
to draw a sum of money into bis oh n purse,
for the king sends to have no money ; hut to
proiide a slii^ : and if the sheriff accordingly
provides a klup, thvre is an end of the butiuessj
all this is out of the case.
As Catlyu chief-justice compared a fine to
JaniK Bifront having twii f^ces, ttie one look-
ine backwards, the oilier rornardsi so may I
ofroy argument ; I &haU Atat look backwards,
what we shall do, — The guik Jecimui rests in
the advice ne have given to Ins mnjcsty in the
caie, and the opini'>n of the judges subscribed
nitb their hands delivered over to his majesty,
(which was read at kirge by him.) The advice
we gave consists of four assertions.
1. That when ihc kini^doin is in danger, all
the kini^dcm istn juin in the charge of defence.
— 3. What shall be adjudged a danger, and
what not, his majesty is the sole judge thereof,
and of the means how to prevent and avoid it.
— 3. llial in case of danger he hath power la
fend to inland counties, as well as to maritime,
to assist to defend ng^inst invasion. 4. That
the king hath a power of coni pulsion, to punish
those who refuse lo contribute to this charge.
This opinion beingjoiiitly and severally deli-
vered hy us, declared by my-lord keeper in ibe
StBT'Chamber, in the presence of us the judges,
before the lords of the council, with an inti-
mation ns if it were ihe full consent of all the
lards of the council befort hand, and there
i^mmunded to be inrollpd in all the courts at
Weitiniijster; yeC we so delivered our opinions,
that if betier reason was shoikn to alter them,
we might recede from them ; for we had better
recumri, than maltcurrrrt.
Now to the second point, f uid Jacietmif,
whether to stund to this o|iinion or not, and
. then whether this book or record n ill warrant
it, aud how far it.dilferelh frum what «e have
.done, I shall Speak my coiiscienoe. I ain an
old man and ready fur my gnive, my tongue
and my heart shall go togcitier. 1 am of ih"
Mune opinion 1 was tbeu ; tind coDceire what
we than delfHTcd wat aceonling to hw ; nitk
all modesty submitting to those i hat bne ban
or shall be of a coirtrary opinion, tm ibe
grounds of Law and nature siippurt ii.
1. ' $alus populi esliupreiDa lei. QuiMslit
■ commodum, seDtire dahet et oniu. Qusd
' omnet tangit, ub omnibus debet suppoitui.'
What do these rules intimate else, but \Sal
when a danger is imminent, tlie cfanige mos
lie upon tlie whole kingdom, and the btudoi
must 1^ borne by all f Aud that is not (lenied
hy tlkem that were of counsel on ttie other adc
It must not be every kind of fear and nuioar
that must draw this kind of burden upun lit
fiulijectsj hut such a dinger ns the king in te
understanding perceiveth doth require a ipeed;
a. That the king is sale judge of this di»
ger, and how to prevent and avoid it, ii not I*
be literally understood, for tre are liii jud^B
deputed, but our juikmeiit Bowl from hifi.
Judgment is settled in die kins, he is the foM-
tain of justice, from whence all other pnjcetdj.
Bractou saith ' Rei vicarias Dei est in tern
' sua.' We arc judges cumulative, not primi-
tive ; so be is the supreme judge. lu ihepw-
liament the king is the sale Judge, the ittt ut
bat advisers. S9 Ed. 3, foL S. Hereitrsibit
the old fiishion of penning of statutes wu
' Rei siatuit.' 7 Hen. 7. Affierwardsiicimelo
he with the advice of the lonLi and comiHoi.
Trin. 6 Hen. 6, rot. 41, Banc. Rqt- 1^^
was a prior broughfa writ of annuity ogiiml
one in Ireland, there was judgment in tb
Common-Pleai ; then at length a writ of imir
in parliament; the judgment nffirmcd; sA«^
wards a writ of error in tbe Kin^s-Beacb
here, and both jud^ents reversed. And >>
the entry of the judgment the record stiti,
' Nos cum auensu et ad requisition' cotimui-
' nitat' do reverse the judgment. Wheteoot^
the king is the man that is .tlie sole judge ttot-
of. (By the way observe, out of this '<°^
the pnwer of the king's- Bench in England; M
upon this record it appears a writ of error "i
brought in tlie King's-bench in England to R-
verse a writ of error in parliament m Irdaml.)
Thissheweth the king in parliament is the *>l<
judge, the rest but advisers. So, as I said ^
fore, he is the onlv supreme judge of ihedti^
himself, and of the way of prevention, wktilw
by hi] councd or by hia parliament.
The third assertion i-, that the kinR "illw'
parlioment, in case of imminent daitger, bsik
power to send to inland and maritime wa«
to provide snips. And I think he mny i(o»
hy the furidamental laws, common Ib«^ ■«
Gt'.iLiile laws, nnd by the precedents. - ,
Fir-t of all, for the common laws, (hire '
leave the diviiiea to talk of the kind's po"".
«hri under favour t^ike more liberty than b Si-
ting to any in a pulpit ; for he that will "•"
the statute De Ta!ln«io non Concedtnilo, if *
he a statute, lo bind the king, such a i»»"°T
Cipsar's friend, but speaks without his hoot)
Bructon snith, that by the general !»• of iao"''|
chy, the subject's goods are at the kij^'' P'"'
11S5] STATETRIALS, 13 Charles I.
ri England tatennlawaj.bulpreserte those
■ jura Kupronat mij cats Lis,' as to pn>don all of-
feucn, to stamp nioDcv, and in^nite olhers
more dedared in pBiliameDt, 1 Jac. which court
is ihac ' tres baott court,' of which none ougbt
to tliink disltonourably. I leave diiinw to talk
ibeir pleasure: We are (o judge accorrting to
theAiiidameoiallawsnnd cu»omsof there^m.
There ii a bouk which Mr. Attorney remem-
bered well, ihai the king of Eceland hnth iuor«
Eower iban an; other king. U the king muiC
y the law defend the: kingdom, he must In; a
charge to provide fur the same. The'common
law owns the king as sovereign and head of the
kingdom, ihat should deFeiid and proiect ic 1
Sam. 8, 19, ?0. They nuulil hrive a king tu
he adjudged by, as uiher nations had, and lo go
in and out before them ; that was the fashion of
kin*9 before, lo judge their people bj laws, and
ta defend ihem with arms. It is an incident
qualit]' iohcrent i[i ibe kine. It standeth with
nature and tenajn, that ihe king sbo«ld have
the charge or the defence. If this inherent nua-
litj should be taken away, iiow can be ileltud
Ilia people? If he be no more than a common
yersiin, lie cannot be a king, unless he take the
defence and prntectiou of bis people upon liim.
Mr. Attoroey shewed learnedly, the king is a
monarch and suverei^n, the people his subjects ;
he if the head of the body, and thefefore mny
command it. Fitz. Herb. Na. Br. and Stam-
£>rd Prerogative, ibnt'tbe king protects the bo-
dies and Inods of his subjects : lie is Vicarius
Dei, appointed to protect the kingilom; 90
there iia tie of allegiance that binds every lonn.
Stamfont, cap. 2, of Prcrt^ntive, the king by
law is the proiectar of the body, lands, and
goods of hit subjects : so he balli a liberty and
premgniiie for Ibia end, (not fur his own profit)
Ml ifae bodies, lands, and goods of bis snbjccts,
in time of danger. II Hen. 1. Every man iu
liii own person is bo and to serve tbe king for
tbe defence ofthe realm; and gives a reason,
•nd that is the reason of ptolcctiuns, because
(hey are bound to it ; therefore they shonid
iMve no hnrffl done unto them. The kin^ him-
aelf cannot free any man from his allegiance,
without act ofpariianient ; netther can the sub-
ject fiec himself, as in Dr. Storie's case. So
jrou see the king's majesty hath interest pro bono
publico, in tbe person.
He bath also an interest in out estates, if it
he pro botio pubUto i asin tbecaseof L. it was
adjudged he has powerto come over meas lands.
Now what prerogative hath the king concerning
tbat? and yet, according to Popbam, tbe tno
chief justices and chief barnn agreed, that
where a man hath an inheritance in lands and
woods, the king cannot cut his woods for his
private use, unless it be pro bona jniblUo ; nor
dig gravel in another man's lands : but yet in
case where it is pro bono pMko, he may do it,
and make butwerki on their grounds for de-
fence of the kingdom. — So for pontage and rou-
nge, ih« king cannot compel tbe subject to
VOL. ffl.
1637.— tn the Case ^Sk^SToiuy. [1I8S
make lli^ walla of his own house, or a'bndge
for his own private use; but where it is com-
manded to be done, where tlie subject bath »
benefit, there it is eood : so here is the difler<
enre of tbe case, wliere the king comuiauds lur
his private use, or pro bono publico.
My brother Crooke saiih, the king may press
ships for his service, in the defence of the king-
dom, but not command iiJand counties to fur-
nish ships; yet there is n precedent in Oxford
to the contrary. — By the fundamental laws of
the kingdom, he is the defender of his subjects,
of their bodies, lands, and goods; and where it
is pro bono piibticd, they are to pay towards it.
If thece biid not been oljections that dazited
me, I should hate done before this, — Tbe casa
of (lie abbot of Bobertsbridge is an allmvaDce
of this charge, a dooble chnrgc of l.inds there in
two several pinces. T temember in a parlia-
ment, where I learned n great deal of good, 1
Jac. tlie king, wilbout canieut in parliament,
laid an itnposilion on merehandi2e, but was id
case of neceisity, pro bono publieo,
iiovi to answer objections, and those were
ifiany, my brother Crooke did double and re-
double them. Brother, we sti one next ano-
thi^r, antient judges, though different in opinion.
I speak out of my conscience, as you bav«
spoke out of your
1, though there be rarieCf
^ lorn have sellli d a property in the goods il^
tbe subject, that, without their consents, tllis
cannot be taken from them. — This doth not
trench upon the property of the subject, if yott
take the case right: if ihii be a h:whil nreroga-
tice in the king to lay this charge, tlien how can
it be said, that the subject's property is invaded f
For if the property ab initi» be in the king, then
the luw annexed this lu the lands and goods of
the subject in the beginning, and made them
liable 10 it by a secret tacit condition. If a
man do enter for a condition broken, this is no
divesting of the property out of the subject. If
good? be given to one till such a thing happen,
or upon such a condition, thcie is a iiroperty in
the dunce, yet it is clogged with a limiiAtion and
condition ; and « hen the one or the other hap-
pens, the property may be reduced or transfer-
nall G
ind r.
linhlo to the payment thereof: so for the pay-
ment of those things necessary for tbe defence
of tbe kingdom without their consent; forifle-
gal, what needs this condition? I would wish na
man to clamour, that this is to itivest the sub-
ject of the property in his goods ; for it is nj-
tiiing but what IS for the defeneeoftlie kingdom.
Tlie next nuthortties olneclcil by my broihei
Crooke, are tbe laws of William ih^Contjiieror,
nnd Charter of king John, then tbe statutes,
then Forteseue ; nnd therefrom he aaiih very
much, tbat ^e king of England cannot lay
tales upon his subiccts, witbont their consent
ii) rarhamcnt. And where he speaks of tarn
and charges that cannot be inposed without
consent, some other places of tbe author do
shew, that it is where the king impoKih it for
4c
U!?7} STATE TRIALS, 13 Ca. I. 1«37.—'
liis own pritat^ tuc, aod not id caw '<f public
[lea, 4, the chargea of Iff.
casurins, Hdjudfied Toid. I
i ndiaagtd voia upon UiaL
point. Troe, in |iarliaiiieiit it xai complained
gf aa it grievance to tbe subject ; but every
petition in pnrliaiiient doib not ari^ue a right :
It may br it vai ad damHUni, yet abigue injuria i
that case differ* much from this, fur (here nis
but where there u a quid pro quo; nor of tbe
caie of dice, cards, manopolica, ihoie cates
noCbini lite iliii : m> a coinmiiisiun of sewrn
tnay Ikv a charge for tlit, repair of ■ bank ;
wlien ibe lands are overflown, and tlie owner*
be not able, tbe neiglihourhood must be taied;
■o in CUM of a bridge.
Then tbe statute of 2 Rich. 3, waiobjeOed;
noEbing must come to the kinif's purse, nor to
Ac kini's coffer, but it aiuit be for tbe defence
of tbe kiagdom. — This *ai no lawful charge,
because tbe iuieniiun was to £11 ibe kin^s oof-
ters, which were empty, and ibnt could not be
dune but by parliament ; so it is not iu our
due, no money is to cnme to tbe king's piiynte
VK. — That of Hen. 4, for repeRling of c«uiinis-
aioDs that were nwarded to provide barringers,
the record saitb only that tbe king's nntvier tu
the complaint was, ' Le roy le avisera avec
* les lignares.'
Then he cometh to the statute of tonnage
and poondiise only for ordinnry diifeiice of the
kingflom. — Why there sbuuld be any diSerence
between an iivbnd cuunly and a maritime I
> linow not, ttnce to the couimoa defence all i
e<jitilly enERged as one intire body ; and t5e
and counties have the benefit by sending their
wools by sea, and yet tliey inust.not help to the
defence of the sea. As in the naturiU body on
member helps another, so when tbe mariCioi
counties are not sufficient to make defence (i
in ca;c of extraordinary defence they CHunotbe]
the inland county must contribute. Besides,
the king inny unite an inland county to a mari-
time, and muke them but one county; is not
be lord of the land as well as of the tva.) Whut
was the law belbre the division of counties I
Sjurely it was equnl in chnrging the nbiile kioK-
dom; fori see no reason but an inliuid county
sjiould be chargeable by law, as well as a man-
lime. In aniient times, thii>gs done upon the
■ea, were tried upon tbe land in the Kine's-
fiench, as by many records appearetfa. One
,il of a Norman robber upon the ses.
Object.— But if this bs so, the law guSetcth
B greater inconveniency, viz. that the king may
by his writ charge what and when he pleaseili.
Re spa lis. .^T his the law trusteth the king's
goodness with, that he will not require it of hit
tut jects hut when there is occasion; and he
may do it, so long as he coniinuet it no laager
- than [here is uccosioD.
Object.— But were not Dr. Cowel atHl Dr.
Mnnwariu^ «cdt«nced iu parliatACUt foe luch
' tjeaeut
Respons. — Tbey were atntenccd, ud de-
srvcdly, but diOereut from our case: I «aa «
mcmbet lo tlie parliament, aod *rai in tk«
lower house when Cowel was seairuced. I will
tell you what Dr. Cuwel did : he wrote ^ boo^
and under tbe word^ Premgotivr, Subsidies
and Kings, he inferred as if ibe king niiglA
make laws without consent in pBrliament ; and
wrote against ^ common law, which the king
is sworn to maintain: thereupon be wu sm-
tencid, and his sentence was Just, and I gav«
oy voice for it. The other wat Dr. Haowar-
ng, he preached twoSennons that tbe king wat
lot bound to ohsen'c his btwt, that tbe c%Wt
ind Liberty of the subject are at the kill's siU
and pleasure without pailiament, and that Ibi^
duth bind the conscience of the subjects, and
thai they are booud to pa; Loao-Monej npoa
pain of eternal damnation ; and that ihey that
did refuse to pay the Loan-Money, did oEFeu^
against the laws of God, and were tiuiliy of dis-
loyalty and disobedience ; and tlmt the aiubo-
riiy ol parliamenis was nut neceiEary to lb«
gnintin)< of any subsidy. For this he was sen-
lenred, and luade his submission. Thm wai
fur raising of money for his own use, but this b
to require his subjects to provide ships for iba
defence of the kiogdnm.
Object. — Tbe neii objection was CtnnaR.
that by that lenare great profits uiise to tte
king for defence.
Respnns;— Shall the defence of tbe kingdeia
be luid only upon thou who have their mainte-
nance out of the public revenue ? What witt
the king have left ii maintain himsrif, bis
queen, ms children, intelLigeacet abroad ? Will
yiiu strip him of all \ It is true, I hold that tin
Ling, witli tlie subjects, inast ji>iu together Id
the defence of tbe kin)(ifaiD. If tl^ king be
rich, you should have pleaded that the kin^ l^d
sufficient in his puive.
Object. — Then it is objected, that there it
no apparent danger, ajid that this charge is dm
allowable neither by the cotomoii lav, stttloM
I say, it is due by tbe commoa law ; but will
you have dai^r lo npparcDt, as Hannibal ^
a tat f Will you suffer an enemy to come in
:>re you prepare to resist i If usee be geti in,
you will hardly get hiiu out. Is not that as
much In be commended, that doth prevent a
danger before it cooieib, as when it cometl It
not the care to prevent fire from a house bctbre
the fire takes hold of it, as great as when it it
on lirt to quench it ? Therefore the king, like a
^od physician, Seeing a disease growing, bcfbfe
It getl tqo much ttrength prevents IL
Object. — in six weeks time, a paritamnd
may be called.
ttetpons.— 'Thoi^^fa it may be, yet after th^
meet, a long time they niend in consultaUW
before they can do any thiag : which would ■>•
too mitduevaat in a sudden invasion i and
therefore king Ed. 3, in bis IDth, 11th, aod ISib
years, wiiilit the parliament wm sittii^ seU
forth his writs for aid.
Oltject.— It WM allwliid bj )b> BObon^
11S9] STATETRIALS, ISCbarlesI. ]6?7 i»(feCfl«<!f Sft^Afon.^. [H*>
tint tbe law of nature Wnclietli every Inrui to
defend himadr.
E«apons.— What, I pmy jon, will you then
liave done, on n tuddeu invaaien, wben farces
mult be raised in CorniraJ!, sume in other parts
of the kingdom a( remote, and all must meet
together? If the king must expect such an'
actual invasion, before aurh time as lie sends
forth hii wr!t» to hare Chem alt in readinesi,
how poorly vtould Che kingdom be defended at
that time t Our forces would be scattered, and
cannot be brought together, which tbui divided
cnnnot withstand a foreiitn power.
Object.— Tbe laic objection vraa, that the
.king, nt his pleasure, may draw when he
pleaseth this ctiai^ npon tha subjects, if he lay
lie is of opinion chat there is danger.
Why 'may noc tbe law allow this, and trust
tbe king's jodgtoeDt here as well as in the case
of K lie aceal regno, in which if tbe king com-
tnauds his subjects to stay at home, for such
and sucb n cause, tbe case is not traversable P
Fin-Hcr. Na. B. 165, 85, 7 Hen. T, saith, if
the king doth rectify an ace of parliament, you
canoot speak against tbe king'* certificate under
the p«Bt seal; ' Null tie) record' is no plea. —
Again, God Almighty blesa the king; it is
«^[ain9C presumption of law, that tli* king,
whose heart is in the hnnd of the Lordi shnuld
tell a lye. God gives wisdom to govern aright.
Lying lips do not become a prince. Truth to
GoA Almigbt;^ hs owes. The law says, the
king Eoay nuru-e vtrum, but not dicere Jaltum.
The kinc may not know a truth, but cannot
speak Use ly. ^e\t juramtnto ttriclm, be b
bound to administer justice, and not to grieve
ha snbjecls. Is he so unwise to charge them
send himself vrithout cause, with providing of
shipsf Whathenefii comes 10 him byit? Surely
to tell a lye will be uo advantage to him ; he
were a king of wickedness lo lay a charge on
the subject to no purpaee ; thus be shall cliarge
himself and his subjects about nothing. Dots
' any man tliink he will put a burden upon his
•abjects without cause i We have a good king,
mndour imaginations ought to be good of him.
The fourth aasertJon is, that the kin>; hath
power to compel cbem to the ciinlrlbutiug to
this charge. This power of the king is a spe-
cial prerogative, and if good at common lew, it
taketh axay the statute, when it it pro hono
yruiftro, to defend the kingdom.
The general words of a statute sb&H never be
comtrued co extend to ic: the charter of king
John shall aever take away tbe kin^s prerc^a-
trre, neither the statute De Tallapo nan Con-
cedendo, which I agree to be a statnte, and so
nsT lord Coke allows it to be. Now this power
of tbe kinic, of which I argue, is a special pre-
rogative in point of guvemmeot; it is a pr6-
prium to a sceptre guarlo modo, therefore the
general words of a statute ahallnever be con-
Kmed to extend unto it; ts if tbe king hath a
Special interest in land by the prerogative, it
IMtfa not pass away withoot precise words, as
tbe books are inSmte in it. If the king grants
mmvj Ind by bn letter* pMentt, parcel of a
forest, without special words, this shsll remain
subject to tlie furesc-lawi itill : so many case*
may be put, when geneml words of a statute
extend not to a particular prerogative. If
general words of the statute should take away
these aids, why do tUey oat take awsy the aim
of ' pur faire fici clievalier, et pur file marier.'
since that general words may include ibent a*
well as this } But yon all grant that these aids
are not taken away, and by the same reason I
conceive this remains.
My brother Crawlev held tliac special word*
in an ace of parliament could not take away
'''* prerogative, because it would have been an
act against reason. I will tell you what I hate
bcartT adi udged in this case. In the parliament
held 1 Jsc. there were two things expressly
moved : One, That there might be no wardship
or tenui« of the king : The niher, that the king
might not allow surveyors. To these one»-
tioiis, alter long disputes, it/ was ansnerea by
the whole parliament, that such an act nf par-
liament to cop the prerogative of tenures would
be void, because it is inherent in the crown, for
eiery man holds immediately or mediately of
the ling. And 3 Hen. T, an act of parliament
to restmin the king's non obt(atite to dispense
with penal laws, as not to pardon murder, is
void ; his person and royal prerogative cannot
be restrained by pnrli amen L ThusI havedon*
with the former and larger part o^vi} argu-
Now I come to see if the record will tnalii* '
tain that which we Jiave lm«, and I think it
will bear it both for matter and form. First,'
let as see whether there be tubstance e^otieh,
to shew that there is danger sufficient for this
frerogative to require aii^and asustance; and
think there is sufficient, the Jrencb king, the
Spaniard, the Low Couacries, all up in arms;
who knows what danger this kingdom may ba
in? and if the king say it is in danger, it is not
traversable ; if the kmg had said no more but
this, pro dffcniioBt regni, without any more
saying, it bad been sufficient. It also recites
tlwt there were prddonet, pirate, that took
away both men and ships ; and that foreign
provision was making to take away the domi-
nion of tbe sen ; . and that all this was ' ad gra*
' vandum regnuin nostrum :' and therefore com-
mands a ship to be provided ' ad dcfensionem
' regni.' Here the danger n general, and there-
fore tbe defence mnsc be general. — An indif-
ferent and equal assessment is first to be made,
and then the overplus of the provision to be
restored according to (he writ; for until the
money be had, bow can the provision bemade ;
Though it has been said, let the ships be first
built, and then make the assessnient; that can-
not be, for with what shall the provision b«
made f Tbe money must do it.
Formatter of precedents, as Danegelt, &c.
I do not much stand upon, because i had not
time to peruse them; but conclude on my
My Lord Chief Justice asked lum -mhaX bil'
advice was; he aumra^
1191] STATETRIAI5, I3CH.I. 1037.-
Mj tuJvice ii upon the whnle mRtter, tUat
tlie barunt linijin^ the other process of court
•ml Sci' Fa' to be according to the Eichnguer,
(ror thai 1 leave io them) JudgmeiU shall be
given ihat Mr. Ilampdea shall he ciuT^etl wilh
the aoi. with this iiimtaiioii and condition, that
none or it coain to the Linj^'s punt, fur if it
di), in</ opinioD is against it.
The Aboumekt of Sir RICHARD IIUTTOX,
kut. one of tiic Justices ol hii Majrst/s
court of Conimoii-Plea* ut Wescminsier,
in ihe Exchequer-Chamber, iu (be great
Caic arSHii>-MoNEY.
The king by his Writ lAug. informs us that
there were ((nthered ' pirate bc inaiis gra^aa-
* toret,' and tliat thej were ipiihered li^ether
in hosiilo manner to hinder our merchants from
bringing their goods into our piirt»; and recit-
clh, that there are wan abroad, and that cuu-
Bidering these perils and <langer^, and that the
defence of the kingdom consists in the dElVuce
of the sea, which at all times belougeJ to this
kingdom, and tliat the charge of defence is to
be borne bjr all ; and ibe kinR it lo;li that in his
time such an honour as the dumiuiou of ibe sea
•liould fall awajr or he diminished, and not b<:
- defended, linih tbercfure eent a Writ to the
■herilT of Bucks (as to other conn iie>) to provide
a Ship (if such a burden against tlie Itt of
March, and to come to i'oi isiuuutli, and Uiere
to remain for 26 weekE, and to do as shall be
directed ihem fjr the defence of this kingdom.
And the Writ direcied, iliut nli ih.it ore io-
hahitaai^ shiill be assessed for die |iruvidiiig of
this aiap with men and amniunitioii.-^U; force
«f this writ, Mr. lUuipdeii being assessed at 30f.
then.- nent lorth a Ccrtioritri a yedr and a half
after, directed to the sheriff of^tlie county of
Bucks, to ceitiiy what lumt tbey had nssoseJ
by virtue of tlie said Writ 4 Aug. and there
are two several certilicnies returned into Chan-
cery; oue, that Air. Hampden was asst^seil
■t SOi. the otlier, that be hutli nut paid it. 6
Haii 13 Car. the ling, by mittimus out of Chan-
cerj', recites that wbea he awarded the Writ
4 Aug. ' Salus r^i periditnbatur,' and that
it was for the defence of tlie kini;dora and
security of his subjects; and doth send this
.Writ 4 Aug. the Certiorari, and Mittimus, to
the baroDS of the exchequer, an* commands
the batons to do that which appertains to jut-
lice til be done. Whereupon a Sci' Fa' is
awarded; wLereunto Mr. Ilampden liath ap-
Gareil, and demanded Oyer of the Sci' Fa'
ittimus, Certiorari, and the Writ 4 Aug, aad
bath demurred generally; and Mr. Attorney
bath j^oined in demurrer : and how ihb Sci' Fa'
tieth, IS the question.
And I am ofepinion that thUSci' Fu' dolh
not lie, and that Judaioent in this case ought
10 be given against the king. Fur the better
Qudetstanding of tlie conrt, I sboU observe in
the metliod of my prot^eding",
, 1. Wbetbcr a charge of tins nnturc may, by
llie biiig, be imposed,, by origioBl writ only ua-
■TTte King agaiiut Joht Hampiat, aq. [1198
der the great seal, without a partiamcat.
Wherein I Itold if cajinoi be proved by a»j
autliority or reason, unless in time of'acuial
»ar and invasiun. 3. I will answer those ob-
jectiuns Only UHde fuiroeriy liy iheni that liavc
ai^ued, that these siatutt^ do not eiiead to
this kind of prerogative, and that t bis prero-
gative is not token away by ony of these sta-
tutes. S. 1 nill Bus^ver the precedents, bulb by
precedents of equal nature, and by scime rea-
90US, wliereu|Hin I will conclude, tliat this pi«-
rogalive and power, which is muDarchicaJ, b
included and taken from Ihe king, and that
roust be done by parlinment. 4. I will an-
swer some objectiuns that now have been
raised, and were before made by Mr. Stdiciior.
5. I iiill justopen the«rit,ibat it D«tber coB-
tuineth matter sufficient in the writ .tself^ nor
is there matter to warrant any sucb lev; aiis
pretended; neither is the tame lawful, nor cu
It he mended by Mittimus, nor can be c«a-
maoded by those slieriS that are do shetibia
this case upon the matter.
Now, as my brother Joties htth taken a
gcent deal of pains and time, I will not be
drawn fiom my own order by what be bath
said ; but an^ner him in his arguiorat.
1. 1 %»y, time this poxer of assessing of mo-
ney, being a great charge, cannot by the law at
tins day, unless in time of actual war, be im-
posed upon Uie people by act of parliament. —
i'he acts itf parliament that have been mea-
tioned, tlie lirst was Mng' Chai*, wLit^ it aa
autient and great statute; it coineiii anlDBS
wilh an intpttmui fmm Ed. 1, confirmed thinj
times ; die words are, ' Dedimus et concedi-
' mus has hbenateH subscripCai in perpciuuia.
' Nullus liber homo capiatur vel imprisonemr,
' aut disttssietur de libem tenemento suo vet
' libertatibus, fitc. aut aliquo modo distHngalar,
' aut in caicerem miitatur,' nisi per legale Jodi-
' cium parium suoruoi, vel per legem leme.* .
King William the Conqueror made these laws,
and swore men to those Ibhs. And then king
£dward, in llie last chapter, commands them
to be kept, and he will keep them so \iatf, at
concerned him and all his people fur ever.
Aixl lor this tliey granted liim a fifteenth pan of
all dieir goods, and it is a statute here to this
day, Stamford, fol, 17S, to be tried per ^rt^
as the barons at this day have for ibeir trial
the privil^e of this statute.
The ncit statute is 9a Ed. 3, chap. 5, rect-
iug, ■ And forasmuch at divert pertnns, ^c. we
' have gnuued for us and ourheira, that we shall
' not draw such aid and pride into cnstom for
' any tliinp done heretofore, by any other nilc
' or precedent that may be found.' So there it
now not only for taies for war, but for any
other b^]Mlle^s whatsoever, • forsque de com-
< mane consent de touts la realni,' saving the
untient aid ai.d prizes due and accuttoiaed.
And this saving is noihing, for this statute ei-
tendt ti^ no paiticulnr ; for if any eitend lo aid
by tenure, all England is not bound to this, but
some few. The ttatoict extend to such ajifa
u the whole kii^dom ii tulgect luttoi aoM
1193] STATETRIAL5. ISCsaelesT. \6i7 .-^iu lie Gue i^ Ship-Mmty. [1194
will SBf that ali the kingdom holdi of the king
' pur fill maxier, Stc'
The Blicute of 34 EH. 1, concerning ctrtaln
Lberties granted by ihe king to his commons,
tliis is printed anno ISSI, ^5 Hen. 8. No mil-
lage to be taken' or ievied to ut, our heirs or
sncuessors, without the good-will and nsseni of
the archbishoM, bishops, barons, and other
burgesses and freemen of ihe realm. This sta-
tute hath been quarrellad wiihal, but the words
are rerj effectual.
'Thestntute of 14 Ed. S, agreed to be perpe-
toal bj mj brother Jones, for my part, I can
•ee no reason why it should be so. The ith-
tuts reciteth) that whereas the barons and
commoDi of the realm have granted of thcic
good free-will iheking an aid towards his wsn
fu well on ihii side the sea as beyond, of the
hintb sheep, the ninth sheaf, &c. and the ninth
not be brought into eiantpli
be doth not saj lucA aids, but by consent in
parliament. No man can say against thtsa
woids,the;areaofullandabsolute. Theitatute
SS Ed. 3, enacts, that none shall be compelled
to £nd bobbellerf ; ' Si il ne soil per commune
* consent in parliament.' Hie reason given in
the parliament'roll, is very obseimble; 'Car
' eeoest incounterledroyt delrayalme.' These
words are in the roll, yet left out in the printed
•tainies, but the reason I know not. This sta-
tute of 35 £d. 3, is conGrmed by the statute 4
Hen. 4.
The statute 1 .Rich. S, a very good statute,
though in a vouag Ling's time, enacted and
done by the fords and common! ; There have
been many inventions to charge the subject.
Mow Hen. 4, invented many benevolences, and
that is recited, that whereas divers inventions,
&c.,(aU the world I ihiok is full of inveDbons) it
is enacted from henceforth, that the subject
shall DO ways be charged nith any such like
charge. They gave It the name of benevolence,
but indeed they were impositions, and great
charges were collected with that name.
I conclude with that statute of this kint;, the
Petition of Rijbt, which recileth the statute
De Tallagio. Very many particular thinj^ are
mentioned there, men are not tu be compelled
to lend money without common assent in par-
liament; which is a confirmation of these sta-
tutes, i have done with the statutes.
For tbeaucfaority of the yenr-books; I itill
confirm ihox two onthorities cited by my bro-
U»er Crooke, though my brother Jones slight
the authority, 13 Hen. 4, lUe pritidpal case be-
ing then fl grant of en office uf ineasnring of
dnth and put in practice, and beinj; j^ranted
out of parhament condemned to be vnid ; for
the kiog cannot grant any common charge
was ria;nniiBi, yet not injar.'a; surely had
there been mgre in it, it had not been dsnmed
U illegal.
The . oUter anliiuily it that «f Fortetcuc;
thou^ my brother Jones, in that book, doth
omit that nhich is material ; far that man ha
was sworn chief justice of England, and after-
wards made chancellor, who sailh expresily in
bis ^tli chapter, that the king of England can-
not alter ;iny law; Thathegoverneth ills people,
not oiilj by royal, but by politic power, and
run lay no charge upon them but by perhament.
The king can change no law,' nor make land
gavel-kind tvhicb is not, nor make land divisi-
ble which is not; whii;h he might do if it wer«
to be done by power royal. And Fortetcue .
condudeth with this excellent saying, fol. 30.
S. ■ Rejoice thei«fore, sovereign prince, and
' be glad ; for the law nf jonr reallb admi-
' nistereth to' you and to your people no small
' comfort and security, &c. Frerogativa
' strengtheneth the subject* liberty, and their
' liberty strengibenelh the king's prerogative,'
Cap. S8, is tilll and strong against the kir^
which my brother Jones was pleased to ocnit.
The king may hy his oRtcers take nece(saries
for his honte, nevertheless be is bounrf to pay
for them ; for by the law he ought out to take
away any of the subjects goods without makiag
satisfaction for the tame; neither can he lay
any taillsge, subsidy or olher burthen, or make
new laws, or alter old, without express agree-
ment of his people in parliament.
I have done with the positive part of my or*
gunient. 1 will not trouble you long; I will
answer sotnc objections now made, and hereto-
fore made against these statutes.
First, For the statute De Tallagio non Con-
ccdendo. True, il is very probable that it was
no statute, but an extract out of the statutes of
25 Ed. 1, which is upon record, the other not
being to be found upon the roll. It was averred
una toce, it was a statute, though not without
probabibtv it was no statute, as it was learnedly
observed "by Mr. Soliciior, in respect of the
king's absence beyond the seas. Only I collect
this out nf his itrgument that be thoueht that
that statute did reach very far against the kin^
which he could answer no way, but to take it
away ; therefore he thought it a statute ofsoms
force. — Next, my brother Berkley would have
the statute of 14 Ed. 3, to he bttt a temporary
statute, and but dunng the continuance of the
wars. The first part of the statute is absolute,
but the latter pert " but a temporary statute,
and but during the continuance of tiiose wars.
But it inast (the former part thereof) needs be
ptrpetuol, fur it is granted for the king and his
The next objection is by my brother Jonet
and my brother Crawley, That this power royal
is part of the prerogative appertaining to bis
pereon, and inherent to the crown, a pmprmm
quarto modo, so inseparable, that an act of par-
liament cannot. take it away.
I conf^s there are some inseparable prero'-
gatives belonging to the^rown, such as the par-
pjfc. It vat cndeavourvd that a law ttNuId Im
ndA] STATETRIAI£>l3Ga/L 1637.— 7%(££v<«t»itf.K>IUaiMftilak,af. [IW
9Ed.3,fi>).7. .Tben ameUimiKwtiMi-
tioa concerning the sHtnte of Wiocbow,
about recovBfV by action! a|[UDSt tba cdanlj
where robbenes were committed; there ii
CUM in respect of tfae difficultj wM Rfarol tit
the parliatnent, and Uiere the sbetiff ns mn-
ed to bare his mooej. — Yon shall tec t notiUe
case in the Begistcr Ibl. SS4, among the wrio,
.of Iwothtttwere BtYurt, and lerralbjseltfl
in the Chancer; there to appear at Bomt ; sad
Vecause of this contei^pC the^ wetc eamiami
to prison, and a nrit came to bail thai, I^
turnabte coron twbit in parUamtHta :
ten of difficulty were adjourned in to f
Westminster I cap. 98. ' Id nora cbbib
' Qovam remediumia parliiunento.' Temrin
caset of difficulty, gtatutea have enacrad dH
there should be two parliaments erei; jot,
riz. 4 Ed. 3, c. 4, which was a great coofaas-
tion of the liberties of ibis realm. UtdtM
1 10, lao, parliamenls on|:bt to be freqne^ I
know not how it come? about, that this kiif-
made that the court of wards ihonld be shut
Up, it was resolved it had been a void law ;
tuch is the care for tlie defence of the kingdoiD,
which belongeth iiiseparablj' to the crown, as
head and supreme protKtor of ihe kingdom ;
So that if an act of parliament should enact
that he thould not defend the kingdom, or that
the king should hsv* no aid from his subjects to
defend the kingdom, these acts would not bind,
because tbej would be agaiiut naturel reasuo.
But in our case here, there is Do such thing ;
Cir [here is no act that rettruna the Icing to lay
any charge at all, but only ties him to ooe
means, bj which he wotdd come by it, to wit,
hj parliament. If before tlie itatuce a man
klien land held of the king without licence, the
king ihall seize the land, and hate it forfeited
to him and his h^s for ever. Now by that
(tatute the prero^tive iti restored to a retuona-
ble line only ; this was as inherent in his person
ai any thing could be, and yet it la restrained
by parliament.
Bdbre Mag. Char, the king might take any
■nan's goods tor his provision, and cut any
man's vtoods down, to build or repair his cas-
tles : yet since that statute it is enacted, ■ Nul-
■ lus vicecome) nee baltiTus noster capiet
' equoB, tec niu reddnt liberation em. Nee ca-
< piemus botcum alien' ad castra vel ad alia
'■ agenda noitra, nisi per volunlatem illius cnjus
' boscus ille tueiit.' .And to this day this sta-
tute is of force, that the kins cannot take these
tilings, nor use bis prerogottve. — The prero^-
ti*e of ' Nullum tempua occurrit regi,' ij a
great one ; yet in some csm of lapse of
churches, this prerogative is taken awavby the
ttatule of i5 Ed. 3, cap. 1, where Ibe king
Erantetli for him and big beirs, not to present
ut in his own time : and [his being pleaded
11 Hen. 4, lu). 7, is adjndged BeHinsi the king,
notwithstanding the rule of ' Nullum tempus
' occurrit regi.'
The btntnte of 7 Hen. 8, c. 3, concerning re-
straint of iofbrmatiops, and that of 81 Jac.
wfaereby the king eicludeth himself la make a
title to any land, whereof he had not been in
possession within 60 years before this time, he
was lied to no lime, but unlimited ; yet this
great prerogative is thus bound. 30 Ed, 3,
cap. 10, parLiameuti to be bolden every year
one, or oitner if need be, because of diTersmii-
ohancei that may bupen. It is Co be acknow-
ledged as a gracioasitiivour from his majesty to
l)i» subjects, that he would admit of this case to
be argued in any ordinary court of justice, and
qnt refer it to the parliament, to which place
all such weighty causes are most fit to be re-
ferred.' I am satisfied iii my conscience be
would do nothing in this case, if be wne jusdy
informed, or may be informed he ought not to
do it by law.
The laws of England atutdrt noa pottrunt,
without consent of counsel gathered together :
< Si inusitatum emenerit,' saith Fortescue (a*
the case of ours is) it is referred to the next
, parliament i 'si aliqnidiucoiuaetuffit'tbenit is
to b« |Kit to the parUaBHDt.
government by parliament, ffheiher by it
of something past, or some disaster now Ula
out, rhat this which is the antient way(lilo««
say that parliaments is the goveiument, bt
kiugs have governed by tbam) il MiBiidi W
of use now-a-days. — I do not prescribe [owtf
to the oarliament to goTern the realm, MC te
public have been governed by the parhamtA.
There was seen too much of tbe ambitioas W
mour of some in the Inst paHiatnent, that iiiin^
up nothing bat coohiston and fliscoatnmip^
as we now feel it to our great prejudice.
Now I come to precedents. First, tWrf
Danegelt hath been objected f of whicli lim
were two kinds, as sir Henry Spelmsn ia lo
Glossary observes ; the one ad pwmA", ik«
other ad coercatdum Damot ; great lam a
money they bad to go ho^ agiiin, irw
li,000l. to 48,0001. per annum; ud it ■»
raised in three years : it was continued inp
king Stephen's trme ; at which time itisjaii*
was released. For my part, I see not W iW
it might now be put in use ai formerly, !>■ "
not been for tbnse statutes of Ed. ],acdEd.3,
be fore-mentioned .- .for it was not laid ia**
when tbe dan^r ceased, but wm contiiwd
and taken up Iw princes when they had ■ "^
to it, as by William the Conqaerar, and "■-
iiom Rufus ; b«it since these statutes AJ^
never taken (and here he read tbe >voTd« rf t»
•tatntes.) So if these statDtes took that anfi
whydotbey not bind in onr case? Whidioi
full answer, in my spinioc, to that and aH oiW
piccedeaa before these statutes : (here mm
been shewed aoo on each side i bat 1 -}>'
had been better they bad never made »«*'
ibem. So to all the pieccdeats made mm*
tha statute De Tall^non CoacedeDdOilF"
this general asswery tA be of no fcros. ,
For the precedmts in Hen. S's Umc, «V*
■ere many ; yet ia tbose caaiaasBm^ P**
paring of nlleys, after tber were niade t>T
119T] STATETKIAL^ ISCmauuL I6i7.~^ Hit Om t^ Stip-M<mq. [Il9tf
Ibe ship ii the natter : then give me leave to
Mf tlus, aad I mj, ■■ it appean plainlj bj
tbe record, there wai im ^lip prepared ai all ;
then if DO ibip, no writ can tie had sgiUDst him
for disobedience. It i» known to ail the world,
it it BOt thipi, bat ShJB'Monej : Sbip-Monej
ia iuereij nan's mouth. It bath a name of
pTepariog *bips, but tbe end of it ia to prepare
Booey, B« in Yorkehire 13,000'.— If the pro-
vwioQ of a »h)p bad been iiprewl; altedgeJ, it
might have been traveraed, and iherefore Mr.
Hanpden's counsel oouM do nothing bot de-
niu ; and 'hj demniring, they conlesied oo-
thini but what b materiall; and snfficientlj
aliedged, lo that it might have been denied by
a IraveiTC. — But you nill ubiect, that I did
lubacrib* to a continij opinion, and Mt mj
hand, unto It. — To thia, for my own pmrt, I miut
My, and I caa truly say it, 1. My priiate opi~
uioD mi ever against it. I did anbtcrlbe, but
it wea but for coBfomilCy ; (or it is known to
all, when a great nnrnber meet together, the
jodnnent ia that which tbe greater number
•aith : betides these words to which we aub-
scribed are no wise paraaed.
3. Ouropinioos were very saddenly required;
for tbe king's letter bean date Feb. 3, and oar
opinion* upon it bear date Feb. 7, fcillowing ;
and it was in a case wherein we neter hevd
any argument : and we usually do, and God
foAid bat we may dissent from our private opi-
nipns npon a better reason heard. Bnt I am
of the sane opinion dow that I was then. — But
it wilt be said, we might have done it more ad-
visedly. Nomanofaibut someiimcs deliveis
his opinion, and yet after we have lienrd an ar-
gnment, have cliaoged our opinions, and gone
with the itatnte of U Ed 3, 1
«0*wct tfaoae precedents of tba 10, 11, li £d.
3, and by tlie way observe the times that wera
tMo, duM sututes were fonxd to be made to
raoeti^ tkose evils ; and surely those were the
bunlen* and unteasouabic taiei whicji the kii^
ia tbe 13«h year of hj* lei^n, conlessed he bad
oppressed bis subjects with, and desired tbe^
migbl be forgotten, because he was urged to it
ky ail tiecesuties, and not for any ill eud of bis
«wn, (and so he'caused tbe record itself to be
xeul openly before all the judges.) '
S Hen. 4, 9 Rich 3. A general aiwmbly
called and resolved, Tbat money could not be
raised but by parliament. Since this time, all
tba precedeaCs [hat have been vouched were
ibr arraying men, and putting ibem in Madi-
«eat.
36 Han. 8. Jbere were some forced upon
their awn charges to go to sappma sone re-
bels in Liocolnshirc, but afterwards .were re-
twmpensed for tbeir charges; sailfa tbe Re-
cord, Our pleasure is to send a messenger,
aai on a bill^of chot^ts he shall satisfy tbem.
1 do agree, and there are many statutes that
mot saouli) be arrayed, as the statute of Win-
obester, which are only preparouons to make
men ready.
Now for that which bath been ntted by Mr.
Attorney excalleiuly vrell, tbat tbe king by tlie
law of tne land, hath a prerogative in the lands
SIhI goods of his subjects ; so tbat in some
cases, the sheriff may for him break open a
gun's honse^ and the hke, because otherwise
be (Mumot execute justice. — True, ttie kiu;
hatli such a prerogative, and fit it should be
used; brolherwisejustice couldnot be admi-
nistered, as it is in many casei, tbe sheriff,
though a verdict by default, luuh power by
prerogativaofthe kins to break iota the bouse,
and give poasession; for otherwise justicacould
Aot be admioistered, if all laws were con-
temned ;' for which contempt tlie king may uae
bis power. — Again, the king of his own cbarge
AlBintains hiacaurts of justice, and is bound so
to do, 39 Uao. 6, 34 Hen. 0. And in lieu of
these charges the law gives him those fines and
Mher duties ; so there ii upon the matter a
f uid pro quo : but where there is an interest in
a subject, be cannot take it away without his
consent, at be may do it in murage aad pont-
age, and the like ; (brthere is a pnrticnlnr be-
aJefitto tfaeBubjecc So I think I am. almost
M an end of answering the first and second
part of the precedeots; the antient time nas
one way, and the modern time another way.
In B(^. 4, Ric. 3, Hen. T's timee, they are
all for wages of the ntariners, certain aliow-
^ces ibey had ; what a week, what a day is
Mt down. — But you say, here in this case ap-
«cars no money to ba paid by the subject, but
for a ship to be provided by tbe sheriff,
not any isoney to oome into the king's
purse. — I must conclude this part with what if
agreed l>y all, that if thiawrit had bean to levy
moimjF, it had baen Toid.--As I do take it, die
«n(Vtoj)i«para»tl>ipfifNGli KbaideD; lo
and
srnny arguments heard I hod bpen
oi tne same opinion that was delivered, yet
this writ doib not pursuethe direction thereof;
for though we agreed, that the king might
charee in onse of a general danger, yet this was,
and IS intended, not a danger of pirates, but an
imminent necesMty, and apparent .danger,
which could not be avoided. For I do agree
in the time of war, when there is an enemy
in tbe fieid, tbe king may take goods from the
subgect ; such ■ danger, and such a necessity,
ought to he in this case, as in case of a fiiw
like 10 consnoie all without aueedy help, such
a danger ns tends to tbe overthrow of tlie king,
dom. Give me leave to say, that kings of
England have exercised great power in taking
this to themselves, 17 Ueti. 8, lo tba Cardinal's
time, it was counted lawful to send forth com-
missions thrODghout England, to take a sixth
part of the subjects goods; whereupon many
upon refusal were sent to prison ; the lord
Cobham among the rest sent to prisoit front
Huntingdon to London : at length Norfolk and
Sufiblk grew to such a beat for taking away
chrir good* in tfiatnndnemaiiner, that ibe king
was forced to coll a great council, who sup-
pressed those kind of writs; and the king laid
the foidt upon the cardinal; and the canlmal
. said it «u the advice of the king's councd, amf
1199] STATE TRIALS, 13 Ch. I. IQSy.—ntKtngagaiMaMmUmmfdn.aq. [WW
estate : soit is in oar case, if the writvtnMl
le^al trbeii il £rN baned, no subtequcat bmm
Mwll oiake it good.
Ilia writ commands the jJierilf ' et <|Bn
' rebellct invenent' to imprison, and to dimii
all Euch as refuse to pa;, jn'is a ^irdj
agnjiiattbe staiute of Mng' Char' ddbc oa^
lu be distraiaed or imprisoned, but bj ike
lawful judgmeiit of bin peers, and BCCi>nliii{U
tbe laws of the knd ; it wu Devet coaiuB«d
ill any writ befiiTe, nor can any such unite
maintained, — Besides, the nordt of tbe mil
are to nte every man ' ttcuiidum itttiinia
' facilitates,' bhsU the sheriff be ajodge ai
party f Ifthc a!»es»mcnt be done kccoriiogta
the writ, he must be judfte and party: neta
tuch a will before. All KhcriRs must pij ds-
thing themselves, or every slierifT must ana
himself, 8 Hen. 6, Dyer 3S0. So, fur tbe m-
sons aforesaid,'! bold the writ to b« tpat
they denied it ; so lie bore the shame. — So in
the time of i|ueeii Elizabeth, who vnis .a era-
cioa/and a ^lurlnus queen, ye< in the end of
ber reign, nhpilitr througli cuvetousness, or by
reason oj'ine wars that uime upon her,I know
not by what cnunsci, 6fae desireil btnevotence;
the alatuie <if 2 Ric. 3, via piessed, yet it
went so far, that by cummiasinii and direction
money was (;BtheTed in every inn of court; end
I myself, for iny part, paid aO(. But when the
queto wu intumied by her judge", thut this
kind uf proceeding was BKainst law, she gave
directions to pay all buch sums, fs weie col-
lected, liuck ; and so I (as all the rest of our
houK, and as I tliinkof oiher houses luo) had
' my SOn. repaid me agniu : and piivy criun-
Bellon nere sent down to all parts, to tell them
that it was for the defence of the realm, and
it should be repaid them again.
Now for tba exceptions to the writ itself, I
must answer my brother Berkley, that no al-
legation afLcrivnrds (if the writ be not good)
ivill help it. The wtit is suid to contain mntter
sufHcicnt, ' Quia datum est nobis inleiligi (juod
* qiiidnm cimtK naves etbona sitbditor' nostror'
' &c.' anrt lead our men into miserable capti-
. vitj, and provide ships, mariiK-rs, &c, ' ad gra-
■ Tandum regnum nostrum.' Now here is no-
thing for the defence of (he realm, no ' cognoa-
' cimus hostiuni adventus ;' as the writs did
antiently run, Again, pimtes are to he wicli-
ttoud with ordinary defence, which nppertain-
etli to iJte king hioiseifi but for extraordinary
defence against invasion, when the kingdom is
like tu be overthrown, there indeed the whole
kingdom is to contribute to the defence. And
our resoiutioi) was, when sucli a danger was
apparent, the whole kingdom in danger, tlien
the defence to be extraordinary.
But yiu object, that tliough tliere be no dan-
ger set forth in tbe writ, yet in the mittimus it
u certified, * Quod salus r^ni periclilabalur.'
—The writ issued 4 Aug. ll Car. the mittimus
t till n<
alW:
the counsel perceiving the first writ was not
■ulficient, they politicly add to the mitt
this clause of 'salus regni periclitabatnr
by matter trpoif /ucium ; this could not be
helped by any subsequent matter, as in case of
a fine, &c — This was much stood upon by mjr
brother Berkley; but 1 shall answer bim with
two cases not to be denyed ; the first, Venion's
Case In the 4tb Report A Qian conveys land
to the use of himself for life, the remainder to
I. S. for life, tbe remaitider to his nife for
her jointure, though in this case I. S. die
before her husbimd, so that now it falls out
to he ai advantageous to ths wife, as if it
had been limited ber iimnediateiy after the
death of the husband i yet it is resolved, because
it is not so limited In tbe be^innios, no good
jointure to bar her of her claim to her dower.
— Also in Chenie's Case, 5 Report. A will
unc'.rtaiii (and so not good) sliaJl not be holpcn
hf an afler- averment Bubge<)uent to alt« the
Agnip, no ship was prepared : if it had bcei
prepared, it had been their own goods ; ifno^
it might have been pleaded tliat there wu
never a ship ; and then the ibeiiSt might hnt
been punished fur not ot>eying t)ie king's c»-
mande. — It hath been said, he balb coafeenl
all matters contained in the writ ; wbereas is i
demurrer he eonfessetb no matter of Isct, tai
nhat is sufficiently set down, 30 Eiii- Colt
93, resolves the Mme.
But to the writ of Sci' F«' I conceive ft m
leial ; no surh writ can go forth to tnaiht-
rifis of one county, tbey being neither of then
sheriff at this l^me; for it went out atler Aej
were out of tlieir sherilF-wick : tberefiwe s<«
return should have been made by inqbuitioiL I
never did see or hear of any writ tint "Wl
CO two sheriff of one coirtity, as it «M l"
Bucks; and so two sheriffs made two tera"
returns. Again, thjs money caooot be kijrf
by Sci' Fa', because the writ direels oUw
means, either to distrain or to impri*an;'lhae'
fore not by Sci" Fa'^for it is contrary to ita
words of the writ. And seeing the sheriff Inn
not followed that direction, lie must aaswerlta
But here to answer my brother Trevor; IJ«
agree in some cases of a certificate, or prcwl-
ment, that a bridge was out of repair,^ <* '
high-way stopt,' there shall go a Sci' *^*'''P°[I
that ; but that tells to whom the name} w"
he paid. But here the writ doth not 6e»*
tbe money to be paid to the king for not (*^ :
paring a ship; that must be by office or ^
quisition onreoord, if a legal certilicit^ l*^
9 Ed. 3, foL 3. The kiog comoiands At «■
riff of Leicester to summon I. 8. &c. to «•
and meet him with aid, to go into •ScetWdj
he spent tbe money to a great Tili«= |J*
went a vrrit out of the Mcheqiier to "lu^
thi»maa; yet after long debates it wit W"
Gt, the king must be informed byici'i^ «
'"""*• . I (J-
1 agree, that tbe kiag, as he is lo""'""
sea, may lay impositions ; but then he *1^
defend tbe m^rcbant* goods from F*'*"*'
1201] STATETiUALS, laCiUKtEsI 16'Jl.-~!ni/,e Case (if Ship- :trM(y. [1203
fdiBOU* Cnse ol' Mich' 4 Jac. in which mse I
wu of cohikeI, a( nn Imposition of i*. H ton
on carrani), one Bries- itood out, «nd vruuld
not jMj it ; tidjudf^d that that Imposition wn«
lawful, far the kini; Qin^r lav an Impusilion ; for
ke hatb llie nilo of the tea, wmi liiih power ta
faiader merLiiiints to traSic ; and if tlxy traffic,
be secures liieir gfiada. — TocnniJudtwith tlmt
nhich IDT brother Berkle<r laid, thiit the >ub-
jpcts of bigland are free raen not slavei, frcp
^en not viUains. Here im no apparent neces-
•itf of any inriHOD ; iherefore hj law, they
cannot be thui conipelkH to psrt with tlif Ir in-
tereit In tbeir ^oods. If there were but op-
pareat aecenity, they mere without limit or
Mint: ThuaJiave I, with as much peripicuiiy
OS tlioae irapcr feci ions which attend my age,
Tonld give me leare, set you fbnh my rsaaons ;
and without any fnrtber protestation I con~
rinde, both ftr matter and form, that you are
Kot to give Judgment for the King.
The OriytON af Sir JOHN DENIIAM, knt.
one of the Barons of hii Majesty's Court
of Eicbequer, in thegteat Cnse of Shii--
11[)H£Y, presented in Writin|[.
May it please your LoTdship; T had pro-
vided myKtf to have made a ahort argument,
and to kave delivered my ogtioion, with my
reasons : bat by reason of want of rest the Inst
night, (my old disease being npnn mo) my sick-
neaa and treakness are gr^tly increued, inso-
much thot I cinnot attend the business, as I
desired. And if my Opinion be required, it is
for thte Phinliff.
Seijeant's-inn, Fleet-ureet, May SO, 103B.
Sir JoBH Dehhak') second CERTKtCATE, di-
rected to itieXord Chief Justice firamp-
stOQ, S8 Mali 16S8.
My Lords; Undentanding that aone mis-
construction was taken liysome, oflhe docta-
mtim of my opinion, which I desired your lord.
•hip opon the last Saturday to deliver in my
name ; for further satisfaction therein I have
aent again, although I vraa most de«ln)us to
have passed my vote in silence in this ivork of
weight, by reason I beard not the four last
(irgumeots : yet I delivered my opinion tor the
plaintiff', nhich I took to be Mr. Hampden, by
T«ason it appeareth by tlie Record that lie
cMining in upon proccM, ' Queritur de colore
' prwmissorum gmriter vetntum et hoc minus
'juste;' which inltsliad me that he was plailw
Uff ; and therefore I now declare my Opinion
for Mr. Hampden who did demur.
I th^l only deliver these two reasons for the
maintaining of my opinion. The tsl is, that
the kins'* majenty ie ' sola et suprems justitia
' ngei.' and the rule of the law ij and hnth al-
- ways been, that liis majesty can do no ivrong;
and thereupon ariseth another rule of oar law,
whidi I gave for my second reason.
The king's majesty being of a corporate ca-
pacity, can neither take any lands or goods
Rwn any of bit mlgMii, but by aad upon a
jadgnw>nt on record, (according to our daily
ex)ierience in the exchequer) there must pre-
cede come judgment in tliHt or some other court
of recurd, whetehv his msjesty tnay be intitled
cither to (he lands or goods of a ■ubjec^- aa
noiiV'ly where seiiiire of goods is made for hi*
lunjchty eittier upon i.ullaHriej, atttiinderi, or
matters uf the like nature ; is in cnscs of sei-
lore? in tlM court of Exchequer, where seiiurcs
are !;iveii by itntutei ; yet wjihont a judgment
in that court upon a trial for the king, the
gnods tre not to he recovered to the use of the
king Rs forfeited.
Upon consideration whereof, and comparing
the same with his majesty's royal wtit, I find
no judgment thereupon hud nor given ; wMch
were the chiefest reasons of my Opinion far
Mr. Ham|>den.
The Aaci-VENT of Sir HUMPHRY DAVEN-
PORT, knt. Lord Chief Barou of tbe £x<
t^equf r, in the great Case of Ship-Mombt
in tb« Etcliequet-Cbamber,
My Lords; There have appeared onto <n
upon this Record many several arguments, and
eiceliently made ; it comes now tt my course,
to express my own opiniun. It appeareih upon
this record, that Pasch. 13 Car. a Sci" Fa' is-
sued out of the Exchequer to the sheriff of
Bncks, reciting, Whereas several sums of in on ev
raentioited in a schedule to that writ annexed,
by virtue of the Writ 4 Aug. assessed upon se-
veral persons for providinj; of n ship, were not
paid, whereby he was commanded, ' quod scire
' faceret,' to those several persons in the sche-
dule annexed nnnied, to appear in the Exche-
Xier, Oclab' Trin' 13 Car. to *hew cause why
ey should not pny those sums of tuoney as-
sessed upon them. Thereupon a Certioniii
9 Mar. 13 Car. was directed tn the sheriffs of
Bucks, to certify the sums, and the several per-
sons upon wlmra lliej ivpre assesscrf, and of
the wRming given unto them lo pny the same:
The Certiorari lieing rciumed, and in court in
April 13 Car. Then on 5 May there came a
writ of Mittimui out of the aiancery, by which
the said former writs were sent to the baron*
of the Exchequer; which Mittimus recites the
Writ 4 Aug. and not the Record itself: and
the barons aie commanded, that they should
thereupon proceed, ns by the Mittimus is re-
quired. Upon (h«e Records, thus certified,
there issued out of the court of Exchequer a
Sci' Fii" that is now in debate, which was
awarded against tin parties mentioned in the
scfiedute; and Mr. Hampden being returned, .
hnlh appeared, and demandeth Oyer of tbe
Writ 4 Aug. 1 1 Car. of the Certiorari 9 Mar.
13 Car. and of the Minimus 5 Mail 13 Car.
Upon Oyer of these, nnd reading them unto
hito, as was demanded, Mr. Hampden hath
demurred in law, alledging. Thai the writs,
and every of them, and the returns of them,
and the matters therein cunlained are not suF-
ficient to charge him .with ihe sum of SOt, on
him charged : aad thereupon d«mmndeib judg<
1203] STATli TiilALS, I3Ch, 1. 1637.— Tl.eAwj.
ment, il'tlie kiin; will bv piMiseJ aoj furUitr t<>
priiceuJ upuii iliis mnt. 'I'u itiii demui-rer, ihuik
leiidcrMi 1'^ Mi: lluiii)H<eii, Mr. Attrtmry liiilli
Jome(I.Blj<!,l^iu!>,Tliutlliew[.t'.iiie..tiniied,Eii>d
nil ul'llieiu, •mil (lie nutters lliiM^tD ciiutniiii.'d,
lire g>>uil iiiid auiHcii'iit m Inw to clmrgc [t.e ile-
ft'nauilC »'!tli Llic sum of 3i.1t. and dtiunlllli;!!)
judgment tliL:icitp<iii l'»r ti.e kiiia ; und lliul tlie
,dufen(liiiit UuuijiJtu nLould b« cliai'ged wiih
■be auQiorJOt. Biid tlien'uiinii make ■uil«|'[i<--
tiuii ; but U) ulioiD is not tvprcaard upun tlie
record. TJiib dtiniuiriir Ix iiig iliua wurily joined
on botli aideg, tijire liave been iei erul ar^u-
luenLi thervupou at tlio biir mid lieiicli, excel'
IcDtly. iiuUuubt, argued, and leiv liillj. There
liatli bevu iiiiriMluccJ und prevMid tu ilie court
(uliercof ibvru Imve been seven) notes deli-
vered) :i number of records appertain in i; to
■he question ; fu f^ir Ibrtb, thnt in one of tlie
arg>iiiii.'ut» ut tlie b-jr, tliere were excclleml^
well reinenibertd, iil tbe least above aOO re-
cordti, and tirent uutlioriues.
Upon [his recurd, ilie diintirrer being thus
joiued, my purpdse is, nfter my meniiiiess, (no-
being ubie to give an occouni of eiery paitl
cular) to make n ^uniniai-y collectiun of whs
I tball say, und uith tEiat khunneis and brevity
liiat appertains Lo Le (die tveiglit of the cuuse
not desertrd) upon tiia duty of my pluce, und
upon'my (latii, Hliichlhavc leurned mirf bold
tube ' lii^ainelltuni liJei iuterUsumetuiiimain,'
to declare unto this court what I do conceive
to be just upou the question urisiuK upon the
records, wherein my meaning is to rclum my-
self unio tLe parts of the record. Judgment is
not liere tu lie giveu, but ujudicisl advice ; and
accord in;* to the number of vuices bere,judg-
liient must be given in the cichiquer, without
respect tu any, of our piirticulnr ii|>inions kIki
tit ill this couit. I sliail dn my b&it endenvour
to opeu uutu you such quektiuiis, ss du appear
to niG upon the record to be aplly and fitly dc-
haleil before us.
Tliu state of the question out of the record
will uppear to be tliis, lliut 4 Aug. 11 Csr.
there issued out of chancrry a Writ, not re-
turnable uotu thesberifTof KurliS: This Writ
was ' hiler brcva irremrnabilia,' arcurdiag to
the stile in that ciurt, and in ihe ciiurt of ei-
clici|uer. By tliia Wiit 4 Aug. wlitili 1 do cou-
eElv£ tu I.e tlie uriKJiiul main ground of this re-
cord, it appears ulint was the occasion und
ground that wiii hos nnardcd. It wiis touch-
Biuns h\- the pirates ujkmi the sciis, nlio (Oii^niit
dCjjrcd.ilious. nnd (ahe liie (-uutii und mor-
el land ize, both uf tlie Lint's suijei.tsand others
ih.-it truliJL' heie.nnii carry ihcm into captivity;
and this is said tu be tu tl^e great duiiiaj<e uf tl'ie
kingdom. — 'lli.ii ihe tiinr^i wtw dan genius, and
boslilc limn, ' triDpura host! I la ;' snd there-
fore, it nas lit thei't; should be a ci>nieiiie
remedy provii)cd by tJie Lili|;i!oin for dttfeii
tU'rt'of; find tliereiipon, in llwt iiiit, two t
viT; J mandntes or cuinniaiids are imposed.
The Kiit was a command and dn-ectiun
vhe slierni' uf the couuty of Bmcks, mid to t
itJohnHampdiJi.aq. [13M
mayor of BuekinpbniR, and to llie bsilifs nd
hurgrssis ol' ChippinQ-Wicrombe, and pimba
of the county ut liuck-, 'et piu ommb' bnm-
' nib'' ol' those tuitns, mid all others ihitlliiit
in that C'lunty; tlu'Se are the pfrsdosHhosit
t'hiirged. And hy ihni writ, 4 Aug. thn "in
charged with lliis particular, that ihcy sluwU
before the 1st of March then I'olluwing al tbnt
on-n costSf prepare and provide a tliiji of »i I
of 450 toii!^, furnished und fitted vith kd, '
umiuunitiun, and victuals, to be broo^I ta
I'urtsmoutb at iheir ctiarge, at or befwe tta
said 1st day of March ; and IVum tbei>ce,u
be mnintniued at t'.i'ir omn profiercKand
charges, for the space of C6 weeks then oai
foltooine, to attund such nnbV penou, to
whom the king should be pleased to ammt
the custody of the sea, and to pursDC tbeitt
rections.
The Second sort of those two mtDdBtM(l^
Bcends from the pen-ons to whum Ihe ntii m
directed onto some few, and that is upcFO *
mutter to ihe sheriff of Bucks, tiDil lo ibe
mayor of Buckingham, and tlie baiCItt ud
burgesses of Chipping-Wiccomlie : lo tiww «
given and limited a power by llie ntit, iletn-
butiiely, ns therein is nppoinled, respectirdj
IX uudatsessihewhulecotmty, 'secsiiAiB
tUTii ct facultutes.' And those that ibe;
lid lind 10 be. rebcU, they should dis<iu>
diem, or hy any due means cnmDiit tlmo l*
prison, ihere tn remain uutil hit raajtily k™
fofth ail order for tlieir deliverance, lliii I
be the end of ihpso twd nas-
dates uicniioued and cuuiptised iutbe^M*
Aug. 1 1 Car.
After this Writ 4 Au-.' 11 Car.aimosHraf
_. id an haU; then conieth the Ceninrarioum
chancery, dated Q Mar. 12 Cur. dirdWdtod*
sheriffof Bucks, who, «ith thcotlicrrefcrf^
should certify unto tlie king the nanifs of wd"
pers'iiis as Were aistssed, and what ibeywnt
assessed, nnd wlio hare performed iheaae*
ment, nnd«l,->.nnt. That writ was rewrw*
ac April then liett follotvine. And tbe»"
Mr. Hampden appeals as n dt-lcnduit to iK
Sci'Fa'; diereinwaabe ceriitied to 1i«m"W
tiiMd to ihe sJln of SQi. f..r liis lai^dim W
town ofSt'ike Mnndeville, iiiid that beiai*-
fuse to pay it, nnd did not piiy it unto Ijin,*"
aii^ of the collectors that were aFpoiDlrt-
Tliis being returned ■ into cbsncecj-, t^ *
order thi re made, nr anv tMle, that tht '"■
imtviMdcn Mr. HampdMi should be p>Bi|
Maii then fi.liowii.fr, in the same tetni cw*'
a WiHhnns, reciting the ell'ect of tbnM ""^
utiicli is directed to Ibo lord trensuni!"".'*
n-*f the Eicheqner: herein ibe uimrut"
it (and not ihe nviit iudf > is «"'*"'. *L
iciti ibt
d>e Kxchtt)uer: utiil niihiJ ii ccrtil"
rirt (if the record, tmrthcr with ihe tttte"
annexed to diusewriis; aud by ibsi '' "^
mended Id lbs court that thty should f^
to du lor the funher receipt and colleciim •
the sums U-liild. ns bv die hiw sud cusBB ■"
the kingdom of Ei.glaiid fhoulJ le rtqu'""^
And Ufion this cert iicBM heM coft^'^'
I2i)j] STATi; TRIALS, ISChaklesI. {65' .—in l&e Case n/ S/,ip-3ToH(y. [1206
of Sci' Fa' directed tn tbe khrriif of Bucks, tn
pit wtice to tilt persoiu ihat vcie delaulicn,
tlitc l!ic_¥ iliould a|)|ivBr mid »lirw inuso, ii'
ihcv cuuiil auy any Uiiu|e. nhy llier aliould lint
bechirgdl thcrewiili mccordlnt: to the liiwn and
rutliHu ui' Uie leHlin ; niid ilii; mil is an re-
tunwdiund iipori cliut return Mr. Hiiiiipden
>|ipGi)rt upou (liedHj in peitou,niid ntler Uyer
ottiit pruceeiling, haili drmurred.
Upun chii recwd, tiii* bciu); the case, nnd
ibedeiDurrer lheTeupf>n joiaed, nc ore tu «ee
wbt i> tlie Uw and ciblum of F.n)[land upon
die inauer MMiit in llie record; lor I mtond
Dot tn expitinte be;|'oiid tlie record, but lo
nick dnte to it, as ii ii iii tbe case now de-
rndjn^ ill court, upon cliis record] nadtlierein
shall cinifine myscir to tome t'cw gcnernl
beads, isUall nut belouf;inuny iliinu.
Tbe lirsC tbini* i<, ^Viictiier tlie^ iwo fxiivprs
and inundatta i,>t!i:cimied in the Writ 4. Auk.
11 Car.' (the (itit;ii^ul gnmnd'Of tbistuitj the
i r«iidue tiicreiu mentioned; aud tl.o
other, Tor taxation at tbe pleasure of the she-
riflii, and otlier person* to whom it in referred,
and tb;it ciprtsaed upin tbe moiiiet uf tlic
Wnt4Aui;. nhcllirr, 1 say, ib.tt tlicse snine
mandates were nnd nre good in law, according
to ibelan and cuauhd ol'tlie kiiiKdani of iijif^
land, upon (he maitcr of this record ; lliat a
ibe line question : ii'ihatdo fail, then the Sei*
Fa' is at an end. If tlien be no legal cliarge
JmposcJ u(ion the tmunlr^r, then be ought to be
discharged.
The tecnnd question is upnn tlie principal
Iiead ; admittini; ttie»e were If ^1 in theiuselT^s,
BccorHiug to the tenor of the ivrit, to sre then
hnn it is reduced hy tlie record. Tiicrein I
ibtill oGer lo cnniideratiim, wbetber on this
certificnteon iha U'rii QMar.ontof Cluincert,
nfler the lini« ea past lor exi^cutiou of the fir^t
writ which is irreiuniaUpf that upon th.it it be
>o Jegal, aud urcordinj; to the cotino of Un-
conreyed over by the record to be a i-ufiicienC
ground and warrant at tlie Sci' Fa' liero
Lroughi, is li.e sccixid question.
liic third question 1 this writ of Sci' Fn'
being iiisucd out, and the defeiiduit liavint; ap-
peared, and denuirrcd in law, wlietlier here-
upon there be audi matter therein, tbnt the;
luny cliaree tlie defeitdaot niili the sum im-
|ioscil upon him, »i) that the kin; may li^re «
juiigiiitut uiid execution u|ian it: ihut 1 con-
a:<.'iv4.> Co be tlie last quesiioa.
Tins case is a case of very great wHcht, and
doth nenlty concern every one nf iii to tiaie an
e*|ieciul eve unto it. It ii an usual ^ucstiun
iu our booka, nhricof we have iiioch view. —
iluweverit he in tli« ri.-cnril, to uliicb »e arc
now tied, it coucciiis the premiiulive of ilie
king, end the c^I;ltc of <lie suhie<t. In my
-conscience 1 think, forcheact ihntMacdnne
OTaa a gracious, hunoursble, and inynl act, and
KFOceediiig upoiiju5t cause, that there nhould
t: m prescDt remedy fur uvoiding tlie incouvc-
]iienct> that die] appear, no doubt for our gfloii.
iiervui, tiioD^ it bi: knpno lo ctiry oue tJiut
knoitcth mp, but especially lo myself, if 1 par-
lake of the rule that tvery nisii it btiund unto,
Ai'if Iripruin, I know withul, that no man ii
muii^ boiuifl, iiiir oweth a more tender care lo
pi-etiPne the kine's prero^tive, and to du that
which may advance tlie same, ns ne are all
iHiund lo di> by iLe crent oiil:i llnit we have
taken npon our prniiuilion : and lu that paiti-
— Upunlhis Ihate litn tuld, imd 1 hive truly
looked int'i.lhe rec"id«, *o liir Inrlh ns my
nirannens nil] fjne leair; und aecordiiift to
H'hil I nndrrftand itf llie Imir and the cuiilom
of llie kir.ijijiiin of England, to be upoD this
recurd, 1 must needs say, Ih'iuph 1 dn confcs*
l^ir my own particular unwilliniily, ibut upon
this rrcoid-Judgmmtou^-ht lo be (tiieii for Itie
Defendant, ' Quod J<dmniii'« Ilmopdt'n »it
' quictu', \t,' hoivever with subuiisiion lo the
grenUT sole of my l.rolhers.
For lirit, 1 do nmrtiv-e, tlmt this clmr^o,
thus ciimoinnrlrd, and thus taxed, is not nar-
ranttd by tlielans and cnsloms uf ilie kiii;;dum
of Knf'lHnih nnd shtill tlierefure oiler to iIm
consideration of the court, li.e several discus-
First, For the tt rii 4 Aus. 1 1 Car. direc,icd
lo the sherilT of Bucks, to llie mayor ami bur-
grsses of Dockiniihan), nnd baililfs nnd bor-
tessesof Chipphie-Wiccoiolje, 'ct probis liomi-
' nibus cooi' BocLs;* hereby nie they (-h.iifcH
npon ihetr allegiance, ihai tliey siiould, U't>>rc
March lat following, prepare at their own rosis
and charers, ' per probos bnmires,' thrnii;:b-
nut nil tbi:iuuiity,oship of wiir well fllrni^lled,
ui'd ihat the sauit! fliip of war ihcy bIiuII loain-
tiiin ut their own costs and charpei, ('ii llie'
; ^ace of 3ti week;, lo attend tlie kind's naiy,
Itir die Gusiody of tbe sea, as tbe king sliuil ap-
point and din.-ci.
This first point I tiikn is not warrantable by
the law und cu'toni uf Enp'and; in rC9]eci,
heii'S n matter of ^n great n charge, and i>y
them, hting an inland uiunty, impussiblc to ba
ptrttiruicd to prrpnre a ship belure that time, -
being no moiitiine county, but an inlnrd
county : tills I do tiike in ilsclf, tliat this is not
a chaqcF to be imi wrd upon n county, by iha
name of ' probos honiiucs,' or of ihe p'articulnr
men there named, eirepi it were by their d« n
cnnSTilt andnpprobntioii. A nd with ihrir con-
sent 1 agree, a chaii;e upon * prnbos liO'iiinis,'
s-) tbey receive not i I inn lo ilieir onn u'e*, is
gooil ciionah; whereof 1 liiid one excellent re-
cord, -H lid. 1. A writ that is*ucd oni nf the
Exchequer, and whereof there Is iLc record
remaining lo this day inrolled and certilitd to
be a tnie copy i there it is diiccttd in case r.f
necessity, when the king is ahwut licyund il:e
tea, upon infonaalion of the discocrry of «
present and inslnnt invasion of ihe enemies iu
I'lnndcrs and France, under colour ol coinisi^
as lifhrrmen tosorpri/e Uic tnwn uf Yarniouih,
nnd nil tbe {Mirts of tlie coasis Uiereabouii ;
the lord treasurer llial then was (the kinf; Lcir^
beyond ibe sea) the uudcT-tteabuicr who had
the cubtodj of the SF8, and tbe barout uf lh«
1207] STATE TRIALS, 13Ch. I. ies7.—V»}G)igt^aiiulJolMBu»^idai.aq. [IM
culed upon ihe ina
iippennn);.
of tlie ne-
cmiiy, as hath been oh^etved : therefore ic is
not good to conchide upon some eeneral nonls
in him, iliac in no case ot iiecetsltv tbeehiii^c-ui
be laid; fur the scope of the whole houk, con-
udered well, nill not wnrrant i( : the intent of
it is not i^nsc cases of extreinily. You t*re
not in the cuse, but that therein the regil
course must be ubscrvad, according to the law
ftud custom of the kiugdoni of EngUud. — But
wlien I do consider of the first cimrge of pre-
parinif a ship at ihcir 01*11 charges, and of the
considerntiou of the next ctinrve in the uiae
wnt for taxation, 1 do not see, nor I csnuot
perceive, how the same do asree, but that ttie
one is repugnant unto the otTier; for that tlie
fomier p^rt commands the charge In be ^ene-
rully by nil ; mid b; this last power it ii litnited
to be done bf n particular person, and tliat to
be dontr at his will, aud as he shall think fit ;
« hereb;/ the sbf HIT, mayor, and bailiff, thus em-
ployed, are excluded trom the chiu^e; fur they
" can dii DO act upon themselves. It should
bavc been dune ■ per sacfdineiituin proboruni
* liominum,' consideiiiig Cheje two dilferent
[loners 1 hiild the lavr so to b« clear in this
point. It appcHi-a uut upiin t)jis record that
tJwy were tusentiug unto it, or agreed upon
Bnj ordinance liereni.
Now the poner of the preparation, upon the
ahole it la ou the slieriiT bimsElf, mayor, baililfs,
' prabos humiuos' and all; but wheu you conie
to the latter iptojaclo, by the Iniws and caetoins
nf the realm, a great part of the former charge
is removed directly froui thoac that were charge-
able; poweroftauuioQ is*|^ointcd. to whom?
to thesherilf, aud how can he tai ^nmtelf ? be
and all his estute witliiii the county of Backs
under the iint chaise, and all discharjieil by the
power of taxation limited in tlie second clause:
and therein 1 take il, that this same is not leeal
according to the customs and laws of En^aiid,
the one doth not agree iiith the other. H you
aik me the icasiiii of il, my brother Hutlon
baib given it. The chaise is iipnn the sberitF,
and 'tis not pos'ible fur tlie sheriff 10 tax ]iini-
wlf, he cannot find \\imKliialerrtbelkt,\ie can-
not commit himself to priaon, there to rem
' till such timeasitic king's majesty shall deli
him ; that he cannot do. So for tlie other re-
ferees of Baekio^hain attd Chipping Wiccombe,
i^xempted likeAise ; if ttiey can do this, thcii
clearly lh« Ibrmpt charge, imposed by the
first and said to be done by them all, b out of
doors.
Now it cannot hn done, according to IhpHaw
nf Enifland, upon the Hherill'ur upon his land.
The point I thiidt U vcrv evident in our boohs.
li) Hrn^ 3. If a defendnnt that i* slierlfT be to
be summoned, and he return that he cannot do
It, justice 11 said thatiMurn wMni>teood,
tai tW he mi^ luiniimn liimtdf.. 8 Ed. 3.
come lo a fiulker qaaalio^ ibc t
aey execution u> Ke Ane vhen
another may be prejudiced, he cuiuM da it,
as to impBunel a jury upon a writ, when
is a party, wtuch may prore a ]>rrjadiM la
ither; forif he do,'il itoottawfoliy il«a(,a
I in Dyer, foi. 8, 9. Uf the sheriff in a om-
a recovery, iio upnn these nuihoiiDM,6T
the first question, i hold it luaairest, that da
ct which ibe alwriff is charged to do, ii «(i«-
'ards by this second power dtschaiftd : ihn*
two powers do not cohere. Bud ibereCire an
not warranted by the laws and ciMomief tte
realm of England.
Concerning the first quntioa rayopiaionii
clear, that there is a material and legal tic«p-
tioii appearing on the eelf-same writ. My tm-
son is, ihe sheriff is the greni uOiccr of the ram-
ty; but when he must do it, I take it lepdl;,^
ought to doit according to the duly of his ylin
by tlieUwof Eneland; that 1 do not take to k
at bis will and pleasure to lay one diing af"
one, aM another thing upon anolber; fivny
part, I coucfive this must be done ' peratew-
' roenlum;' he ia not to be judge incaseafw-
certainties, when a division of charge and tun
istDbemade; where things are pot in ccitaialj
in any of ihekinn's ctjurts, there he may exetatt,
as take a man's goods, impnaon, &c. bat ia
cnse of uncertainly, the law hath innend wta
odice a way and means hnw to reduce the thivj
to B certainty, and that i*,' peraacnBieiU'pi*-
' borum liominum :' as in the esue of V«f""2
if ihey have a mind lo make partition of law
inheritance, they may do it by agreeraetn »■
iween tliera if they will, or bv mahinn of I*
by a third person, anti tlie eider shall ciwt;
but if ahe herself make tlie partitwn, *
shall not both divide and chua* ; that •!■
ters the case for execution, when it i>i«^
prja ptrima. But hdmit they CMWot spat,
the judgment of the law is, tliat the sheriff «J
go in his proper person into the ground ; w
he at Ilia discretion moke Ihe partitnn ^ba
pLenseth? No: The Judgment is, the *"■
shall go in person unto the land, and diit t»«
.. , upon Buch (I thing w done ' per ™crtm«*
' tum,' then indeed it is in the sheriff's g*^
he rany now chuse whether ha will pr»"'**
elder or the younger. But for our case, w
this should be done by a sheriff, by hinl»a»"
tion, whilst the interest of several P"*"^^
concerned, ia na it were to make a rapft l*
not find [hat in any book of law, 1 must ooaft*
In that act, which is done by the law, ''>^"*'
be DO error or parBality ; so in Fjt^- Na W i>
his writ De Onerando pro rata Pnrtroaf^
what there ia to be done: itgoeth to tk*W«i
he is trusted vriih the doing <if "■■''*'" l*^
trusted by legal means; «hat shall he"*"
do? wliere SO acres oflnnd held oflha^i**"
chief, they are sold to sei-eral handi, 'l'*^_^
be a writ Ue Oneraoda pro Hata for AlcWp
ing of the rent; but this must be itoiie ' P*^
' cnuneutiun/ not by tbe iole powtf of l*"^
1309] STATE TUAI£, ISCaAftUsI. lO^.—tittJuCMet^SA^Mon'y. [1910
the nduntarj pleiaorc nf the great officer of
riff. Hcmrf I ind a nouAle pncedi
true, it is not in our bouks of law, buc in «b nis-
torima; Tsthcdoth lel it dcmn inthatnunncr,
that a man maj trmt hira hi fhr. Matth. Par.
he sailh, and ebewMh us that IT Hen. 3, cigiiC
Jean rii([ the mall ing of Mafn'Cfaar' authorhed
f p*rliameiii, ibat ibc king bimsetf in hi* per-
liamcDt was pkeated (according to the iostilu-
UOD* of parliament) tu reipire ' conciliuni et
■ aaailium,' lut the king's wan ; nhere, by the
••ji let, me observe, that ' auiilia ' from the
a«b)«ct granted the king in pulioment are not
■Mrelj lolimtary, but duties, to give monie« for
aaqiply ol aecessities of itate; and in that I
^m with rhc ofnnion of my predecessor. Ho.
Chief Baron, 19 Hen. 6. The king is bound to
defend tlie kingduai. The luine Innr thai binds
btaa to the defeuce of the whule realm, gim
Cka kint; a ri|;ht of inberiraace tt> claim subsi-
dies for thedefonce ibereiif. Biit tn retHni Co
Uat. Pitrii: It appeareth tliere that llic king in
parliament did demand aid nf bis sulijects,
* coDciiiuin ct aiuitium,' tlieir cumi-kI as
they were bouud, their help as liiey wore
able. It is siiid. Chat ihe^ raade choice of
who
of Cbastsr
: lir^t held it not Et to do it, aUedging
tiieir ettates wera but weak, (bat bj the
U<H*oE the kingdom they that bad been there
iM person, they for their escuH^e might not he
tnrabted. The prelates they were more cour-
teSBS in their answer, tliey desired time to Rfr-
aeinhle tticmselvei together, many being tilr
diuant : tiiercupon was a lime assigned, till
Ueni' Poscli'. In tbe mean time they all cod-
■ideredi the leids on the one side, and the lords
spiritual on the other side; and being demnnd-
«l a fifieenih of their goods, they answered, so
as they miglit havf their ancient laws establieh-
•d to them, for which thoy bad been so much
troubled, they would willingly assent tuito it.
The king consented unto il, and tliereupon
Magna Char* \rR« there confiniied upon gram of
a fifteenth to his majesty. But when they
CHoe afterwards, they did all agree, that for
necesHty, and fi>r the Ling's charges in his wats
which did require a spe«ly supply, they were
contented to field to )iim a fourth part of tbeir
goods, Eo be levied in this manner, that is, (for
•o it is mEntiooeit eipresbly in Matih. Puns,
and the lonn is there set down dc iierba in ver-
bum.) I bave it here to read it : that every
•faeriff within hisaoimty should return ■ juror in
everytawn: that to four gentlemen of good va-
lue, and acooDDted principal men in erery
town, power is given, that tirey shall do (ai a
jury, to set forth upon their oaths) assessments
reasonable nconrding to their estate and power;
BDd because it appeared then there, (tbe venf
AcepiioD now taken) that the assessoTs could
not tax themselves, though they had power ta tax
the residue, iherefiire a power was given to two
others of erery town, and they should be sv
Mid Dpon their oaths tax the four fanner a
aors. This cells untii me, what theontieni
luaal DiHORer was of taxes nod assesses by the
futom of Sn^and. The nianDw mm not u
thecouixy; hut thej that did tax others, sboald
be taxed by others. And ibis opinion is di-
rectly in Malth, I'arii, ihnt the laws nf Ei%>
land were so. And therefore for my own pan,
for Ih? sberifi' to lax at his discretion, 1 know
no law for ii.
9tat. 1 £^. 3. By t)le tme record, according
to the mnnuscript of the Eicbtifner Bookbare,
in French it is chap. 7, and so it appenrtth in
the Tower ibere inrulled : it is eipres«ly tlier*
upon a complaint ninde, tbat they lield ihem-
sclves aegrieved with an aMe^smeat; their
grief was, tlial whereas aid was gninled to tbe
crown, more than formerly waa used, jtc. and
taxes not tightly laid upon theiu by the sheriff
and commissi oners : Iliia grievance thus com-
plaiieil of in parliameiil, and the mauner of
their taxing disliked, the king with thul from
thenceforth, the tniations and assessments
should be nude ai in ancient manner, and not
otherwise. Here is an expiets negative, do
taxes to be done but by jury ; which exclude*
in my opiniim this same tax thus done, that is,
by his own power and discretion is not warraut-
able by ibe law ol' the land. And herein give
me leave, as I think in my conscience, and aa
I chink the truth is, if thu inconveuiency bad
not tended to a grievance in very many pan»-
eulars, we diould never have heard of this qnes-
tion ; but by this means it cometh in question,
both tlie one and the other : for t<)e act itself,
it is a gracious and a. royal act. It is requisitd
and necessm-y, as the state and condition, ifil
su appears npon this record, of the kingdom
may be in, tliat there be a supply according to
rhc necessity: for the king is lord of the sea;
as it was argued at bar, in a cause brought
before us the barims of the Exchecjner, where
we did unanimously agree, and adjudge thet
the king was, and is in my conscience, lightly
tme lo^ oF the very propriety and ownenbip
of tha seas. The occasion upon which this
grew a question was as I cnnceive, npon tha
writing of two hooks; the one called Mare Li-
berum, that no ownership of the sea should be-
long Co tlie kin; ; whereas it is tbe sea of our
sovereign, and defence by sea, under Almighty -
God, that is our protection ; and if we should
suAeranv else to have aointertst In it, it would
hazard the whole kingdom. But in answer to
thisbooli, Mr.Selden hatb wrote very learnedly
a notable book called Marc Clausutn, approved
of hy his majesty, and inroUeri in tbe Exche-
quer by command from his majesty, there to
remain. But since there is another book writ-
ten, which I had at my argument, by ont Pun-
Canns, directed to the great chancellor of the
king of Denmark i and be underpiketh therein
to make an answer to every particular chapter
in Mr. Selden's book; and truly, as I think m
my opinion though weak, Mr. Setden hath a
jadgment in law against hira upon a nihil dicil.
Of how great consequence the dominion of
the sea is to this kingdom, whs knows not f So
ttmt wiihant question, the tnx Was nry flc ta
be dsae, if die povci given to tbe HieaS had
liU] STATE TRIALS, 13 C«.L l037.— The King agavatJotnHai>^,n^. [IM
been ai wamintntik-. But this antac tecond
power, in fre« liimstlfaiid lay it upon tlie resi-
due, is lint eo<M(, nor warrsiii tabic fay the Ijw.
Tlius muclilonlieriratqueMiuii coiiciiaine; ilie
pi)«en coniaiiinl m Ihe writ 4 Ati^. ujiich
ilaib nnt rcsnrt to lli« rule and cuflom of the
kiugduin of l'lnt;lan(i.
Ill tl'onett pi lice, let ii> sm wtiMlicr the
writ meniioni c!iu«i auSicicnt for ilic i»ii'rR of
it. For (lie iucunions of pirates 1 nincuive it
unjust cau^c : but tlie cKprefdioiii i[i ilic writ,
u ' quia dutiini est iiobii intellini, lit iiilbnna-
' lur, vuljari) oi'inia est et riiiilor est, &c.' Jf
Ilie kiiig uiulprLike it updii tliis, lie is nnt In
tlieir how.he discnrertth it. I nm Mtiilied .in
my opiiiinn, ojion (ieif of the iirt-redenis, it is
kudicitnt if Ilie king ilfi itll«di[i;, ■ quia dtitnin
< Cat nobit iniclli);i,' or ' quin intL']le\imus, Ike.'
it n eooiH:)!, (or it i> to in tlieie precedpota,
< qund viilu;iri-i opinio, &c.' All t'lese, or an;
of tliese ciitiliuuioi; surlia mntier ihat (be kinf-
Uom is in djii;:er, I. agree ihe sniiie doth crin-
cluile lh« piiriy. uid tTiat tlic king u the sole
,)iidve of it. The case is not travcr^blr, the
nrit lUiisL be i)>ieved,,n^eciD|twitb tbe lans and
cuffjmj of Knglniid.— 'liiat tliin may be done
b; tbe kNig'a ivr:t, exuRlleiit xnd strong areu-
tueiils liAve been ma<\e. 'L\m tiiis impeiinl
power belon^t'tli to tlie crown, I Iteartily ac-
kiiowle.l^u ii : hia puner deciart'lb it si;'rea-
lun it ^iiiu'd lie iO: not voluntary nt liis plea-
sure, but il is occordliij lo hi^ /loli'ic capiicili/,
not enclu'liu^ his natural iuiperialily. ' tjuia
' rev,* lie dotb it not_; but ' Qoia rex Ansliie'
lie d'Kh it : SI I find it in rartc^CHC.
Tiie grounds premised ill tliii wrir, iluit the
kiii^loni was ill present dan'.:er ; truth in my
conscience it was m, :iiid if ihni li.id not been
ilnoe so. England had lienrd of it before this
day. Therefore there must be an expression
of the kingdom to be .then instantly in d.incer,
or such u prcpuration in such h convenient liine,-
or ctse it will be in a great danger; but ibnt
must be exjires^ed, for I bold the law to be so.
Doctor anil Sitiilent aaith. it ii ilie old custom
of ilie land, the king iliall defend the tea-, it is
true, agninst whom 1 Against pirates and petiy
robbers, hut Dot against a sudden invaaioii at
his own charge. Tliese ' prtedoiie>* nbo »ere
spoken of in tbe laws of king Edward, when
IJanegelt was given, they were of ibal condition
thnttliey endangered the whole kioKdoin. Tliey
did uccHsion i be tax of Danogelt, to raise from
twelve to liiriy-cigbt thousand p<>unds; and
William Ruliis raised il to 4f. a hide, iini<ased
upon a j usi ground to repel the t)nnes, being
common enemies : and this was conliuued until
lien. S's lime, but since taken nway by leieral
statutes, at ii 'EAw, 1, &c. Tlint same Oane-
J the terror of the Dauei, contiooed sliJI,
though the name be altered ; it is mentioned in
the Ited ll<iok in the Excbeqnur lo be used in
Hen. I'd time ; but after tbe (iinc of Ueo. 9, I
hold that it is tijieo away by the statutes before-
tneniioned of Edw. 1, ice. and (iierefore if for
private danger ibis ossetstnent ht tmpoted, it
is not according to the laws and ctistumsof ilui
. I »moTer'ttoublesoinc,and Ifearsliall Ikudly
b'>l'l nut; gi<e me leure to )>rarpeil to llie
seunnd coiuiJcralion. And adniiiiing tlmie
cliargfs ill the lint writ to be legni, Uiv ncit
con sill eralii)ii lo be bad in, wlielher llie C«lit-
rariniid tbe Milliiunsdu lefially reiivellKfinl
writ, it being a mil irretuninble, and iiol ae-
cutcd according li> llie tenure of it wilhin tbe
time limited and prefined tu he. done.— Tli
Ceritnrari issued long after ihe first writ, datol
a yeiirand half after. And in my npinunlliii
cannot be; for tbe nniure of a writ nut rHsn-
able, ia to command a pos>ii>etbiiig to brdoH
witbiii Mich n time ; il it be list clone ■cconl-
ini;ly, tliereis an end of the force of ihatirnt;
*n thiithereinourcaiie, tbe power gireo to tt«
she rid' being not executed in due time by him,
but dune out of time, cannnt bcreneweil now;
fiir ntherwiK you will make a man au offeadci
by a relatiun, which btiog u fiction in law,na>
not vo operate, nor be made penal ta Liiti br
n on- pernor ma >icc : and though afiemardi lij
tbe J^liitiuiu* tbesa words ' solus regoi pehdi-
' toliaiur' come in, yet will tliey not rtvite «
make good lliecuinroandsuf the first writ. '>'
tlie lint writ hiut l>eeii teiuniable, and a irton
m-iile, and a default according to the retuii,
the writ bad been still coniinued, and lout
bate been ruttrred by another court, sad ibc
party presented by n jnry upon definlt; sod
npnn presentation and indictaient, the kiiij
shall have bi> remedy : but not being so, it it
but a suutieaiju'i, upon which a Sci' FV csnoM
issue, B« in Duller and Baker's case, i^KtitJ,
and liein;; not rcluniable, is but dead inlaa;
and bi-ing cvrtilied njion the second wni, iii>
not cood, it cannot be lo relate to make him a
wrung doer; to that purpose is tbe cate dtnl,
B6 Kd. .'i, Leicestershire Case, reciting ; wIjw-
as one air John de Lamston, that he had ddi-
vfrcd cortain uioiiies to Robert de, &c u^
lh:>t lie hjd wasted such a manor, and tiku
away ifoods to the value vfiiOOO/. ludlheKop-
onitwns commanded he should lit aitauhcdb;
his body, he appenrtd at this day, and heciiuc,
&C. be was discharged uf it; and acconhaf ">
lhat I find it, 7 Edw. 3, there it was sug^nttd
to be mado in one Ling's time; and wbreii''
was not, and ibcre abated, then the qontion,
wlielher the king mayduitornof lli'giicia
the answer, ihat where it concemetli the ting
in his own right, llicre he may do it ; but ■b''
the title came lo the king from anotberpaitri
tliere it wnsothcrwise.
Upon this 1 do conceive this BreT> irr«iMi<'
falleth short of making biui punishable, uiril
had been a writ returnable; let tbe wnli.tuit
be ueier so good, tbe writ ibertnpou o not
legally iasued.
The next thing is upon the Sci' Fa': t'l'
ipioti^Q upon ibis rrcvnJ is, WlieiKer il>i>
doth appertain to tlie Ling? and 1 conceirftl'
doth not appertain to tlie king : My ressoa >*
ibis, because in tbe very writ 4 Aug. it is**"
pressly provided, that il shall b« emplnycd U
king^M
'Coid, but ipitim rrcordum : But if the >e-
(onl itbflf be certilied into life Clmncery, and
scut bv MilEiiuut into ibe Cumnion I'tc:!], that
is fiiH^d. and hc are jixt^cs i)l' tite itotd : No
(iilier court csu give judgmcnc iipou iht record,
but we.
unto u« llie tenor nf ihe nric,
aid iiavW lliuE 1 cnn find ; and
115 may hi upon oneJudgoieDt.
iraniicript or tenor ol' a recoft-.
int Ol' il:e CliBiicery iuto the
to li-ivf eiociitcd, tl now allir-
t it D*cr 4, ftc 5. & sa, of tilt
queen, tliere wh» n tramcript iliere of a reco--
nixHiice, to t)K intent ilint tlicy might Iistl' k
Sci' Fa' upon it, ami lield clearly by il;e court,
"' " upon the ttnor of a record no Sci' Fr"
rl be. So nil tlii* nppenring upon ihe very
tinincb of ilie record, that tbis »ns merely
of the record, and not retordum ipstim,
t Lnow how upnn ibli record there can
TUat liHvc I done liith the
of the writ and record, nhicli
ipon inj rensons befun! alledKed, I conceiie it
iDt sufficient in low to cbni^e Mr. Ilumpden.
I come now to the greai ql;c^ti(<n conoerniag
the danger of tlie kingdom, nnd our rertiticat*
hit majesty. Circ me lenve, ncording to
87 lien. 0. A
L'ommon-Pless
I don.
qUWICn
.V:13] STATE TRIALS, 1 3 Chabj-e* 1. idSl .—m the Caie (•/ mp-Morif). [ViU
no oilier use, but the preparation of the ship
tlierein inentiuneil, end hy no means to any
ulber puipose, It duth uut now n|>ptar, «hu
were collectors therein uppoinied to rec«i*e
ibenioDey, wbcri'by to tieco^e ciinrgeBbleoier
li> the king. It duth i.ot apprnr upon this n-
tonl, that any ship was provided, or thai any
tault nas in them that hci-c tniplojed, or uf
anr|.lusitge in the colkrton hands: ihoti^h it
was u worthy and Rrncious act in bil mnjestjr,
yet this is not so leEilU eiecuttd, ns the king
iiiay baie a wiit of ScV Fii'. If Jud,;mcnt be
for the king, it toust be with this llmilaiion,
-'---■-- ,( not go to the proper coDer of the
•J brother Jonct obiericd, And In
were paid to him, Ite uould
be fl Inser by it. You see what the writ is, yon
aliouhl be chai^d upon ■ onernre et satibtiicere'
one ship ; von eouitat there was any ship, or
any collector, or any act coiiceri>ing iCt TMs
uuiney oas pre-orJainei only lo prepare a
ship, and to be employed merely' upon tbst,
luid for no other purpose ; and tins appenretli
not at all, whitlttr any sJiip was ma<lc, yen or
no: now Im>w shall we give Judgmeatf The Sci*
Fa' is, That Mr. Uampdcn should shew cause
why be sboald not satisfy ilie sum imposed
upon bim ; but whom be sliould tntisfy, or to
nbom the money bhould be ptiid, non eunilal,
as was well ojiened upnn ibe demurrer ; for it
is not ' Si dominuarei vulet aut debeat onerare'
tbe defendant, but that tlie defendant ' ouere-
' tur et iiide saiisfoc'i' Nothing is put into the
record to bring this to the Lin^ ; therefore
* <(Uud oneretur' cannot be executed nt all ; and
according to the book* of 39 Edw. S, and 40
£dw. 3, if Judgment be to be given, aud ft cau-
niit be eieculed, there it shall not he given at
all : Su the judgmeut required on diis demurrer,
is upon the mutter ' oneietur,' and tJiall by no
colour come to the king. God Luowi it be-
-loDp to him. And that deservedly; but in a
legiil course non toiiUui ; tbcretore to give
judgment, ■ quod oneretur,' and not know to
whom (lor to the king it cnnnut) would be
wrougi for tliis reason! cannot see bowjudg-.
ment can be given, ' quod oneretur.'
But hereupuu anollier thing troubletb me
very much, and which, in my opinion, makes it
clear, that execution Citnnot be made upon this
Sci Fu'; and Ihnt is the Mittimus lo us in the
Exchequer, which by rrcordum ipium is not
certified, but only ihe ttnor of the record. I
do conceive ibe law to be so upon this diffe-
rence, as it is tnten in a case excellently well
argued, SU llen.6, uber^it iseiiid, if the record
be in BUY other couri, whence execution may
be awarded, and the tenor of tbat rccoid is b;
jUiitimui sent into niiotber court, wliere execu-
tion may be likewise awarded ; in such n case
n Sci' Fa' cannot iksue upon such a record ;
for this is but an extract of a record. So if a
luan should sue out ciecntion upon ajudgmeot
given before thejusijces of assize, wbat will yon
4]o uith thisj Aud if he have no govdii within
the precinct, you mubi reinoTe this.. How do
jrou remo«e i^ Not by ccTUf/ing tbe tdKir of
ipeak of what
icietit-e truly,
nnd I bold it real, that wlirn nny pan of ih*
kingdom is in danger, nctunlly in danger, or in
expectancy of dnnger, and the siune expressed
by bis writ ; I agree, the king may charge tb*
BubjectswitJiouip8rliBmeni,tOBftrdbthedelence
thereof; for 'nectssitns est lex lemporis,' in
I'ain to call for help * l>en the (nemy u Innded.
Clearly I hold the king to be the sole judge, of
the danger i And tbe darger being certiG«l by
his majeity, I hold it not traveisable ; and iu
inch a case he may chnrga the sul'ject wiibont
parliament, so tliat (be very cauie be eSectoally
expressed Upon the record*, thnt the kingdtnn
was io danger. But if n parlinrorntary advice
may be called, and the danger not so imminent,
then regularly no such chnrg« can be laid ent
of parliament : legally and rightly, I hold,
things tione by the idvire ot patlinment it ^lere
the best way : But if it be so, the necefiity will
not admit the delay of a parliament, nhen tha
enemy is in view, and expectant ; tlnit is such a
danger as we (Kd certify tii the king in our opi-
nion to be the time wlien he might so cbarg*
the suMect. Ill Edw. 3'b time writs imied,
sitting Ihe patliament. To say, that there can-
not be incucsionij but ibnt th(y may be known
within seven months time, iihcreiii a parliament
mit!ht be had, is ■ great bHZBrri to the kingdom,
possible tbe danger mny be discnvered be-
fore
unexpected. In 1&88, wh<
was, at which time If the queen sl<ould not have
used her royal power, « itiiout calling a parlia-
ment, perhaps the kingdom taight have lieen '
lost by deUys; and yet then great expectatioa
was of a puJiament. So Willimu 1, (not WiU
1215] STATETRIALS, ISCa. L J 637.— 7^ XugogaimtJtJtHHn^ida.aq. [iU
litro the Conqtieror, far h« di^t not oonquer ihe
iJQgdom.fic cuiujuered the Liiig ofdiekiriE^uiu]
hii coming viaa sudden, Ite landed at Haetings ;
and was nut tbe kinji aidiised of ihi* at Vorli 1
Did be HOC llicn iQike ull baste by patt, raised
a sudden arnij', anil bad him battle? And Wil-
liam the Conquerur had ihe vicunn', uM uf the
iLingdom, but agunst the king, Ijimbert sailb.
That he caiDc not in j/er conqueituin, but per
acguUilieium. After lie hkb ccuwtied, and re-
ceived b; the Londoners, he sent forth com- '
niiiiions to all the counties of £n){land, to en-
quire, per lacramentum, what the nntient laws
of England were, and of the etate nf the king-
dom ; and certi£cat£s being made theieof, that
•f Dauegelt was certified to be a tribute in-
fbrced. I saj in tiinea of necessitj, the king
may command tlilj aid by his writ uoder the
great seal, when tlie danger is instant; nay,
tlie exfiectation of it is not traversable.
Object. — Then u\ioa every certificate that
the fclDg makes, tliat he is of opinion tlial the
danger it inslnnt or expectant, this diarge may
come to be annual.
Solut.— No ; we need not fear, that tbe king
will require it but upon ju*t occasion, the law
presumes it^ nodlegtillyi^ cannot be laid upon
tbe subject, but in such cases of necessity, as
aforesaid. By the charters of William 1, king
John, Henry 3, no charge \Tithoul parliiunent :
by the statute of 10 Edw. 3, none is forced to
go out of his county, except it be in case of ne-
ceuity. 14 Edw. 3, 1 bold to be a general sta-
tute, and it doth bind, but doth not bind in
case of necessity ; for tbey are not to be under-
atMid to be biodine in all cases. The charier
of king Jibii, as it IS inrolled, not as it is print-
ed, according to Uag' Char', saving two daosea
that are not now in lUag' Char', haih this ex-
emption in it to the sul^ect of these, and these
immunities ; no tax nor taillage, hut by parlia-
ment; but he excepts three cases; 1 Nisi ad
redimendum corpus nostrutn. S. Pur faire
6u chevatier. 3. Pur lille marier. These
pren^atlvet of the king are not bound up by
tbe itarliaments ; the very cominons themselves
did an«e to these thrFe cases. As for the sta-
tute De Tallagio qob CoDcedendj;, I hold it to
be a good statute, and much fir the liber^ of
die tnl^ect. But if jon come to a case of ne-
cessity, they will not stand in force. There> is
one omission in the printed statute, 95 Edw. S,
which is in tbe records at the Tower, as it was
observed by my brother Hutton, * Car ceo eat
' encounter le droit del royatme :' How this
cornea to pass, I know not. I caused it to he
aearcbed, and I lind these words only in the
articles iiptin the roll, where they do complain
for the Gndingof bobbellers,Bnd are af^rieved
fur it, aJid give cbis as a reason, ' Car ceo est
' encounter te droit del royalme: And the an-
swer which the king gave, unto it, was a royal
answer to the thing proposed ; but those word^
are left out of it. But if it were t^ ri^ht of
(he suliject, ' le droit del rajalme,' ns Littleton
•ailh, that cannot die.
And certainly, in caac of nec«Mitjr tlierai* a
riglii betoHging to the king to prevent dialer;
fur te^ nllj, when tbe safety of the kingtaa it
in d3n)>,er, in danger apparent, in th^ oat tki
bi^ haili a power of prerogative to anpd lid.
And if ao act of parl»o)ent shauU beiiidetD
restrain such a chargcon the subjects ia -oh
ofneoessiiy, it would be Felo de se, uiIb
void; for it would destroT thatre|!aZejat. Sottii
great question of imposui|; tliis chat)^, I aa W
opioioD it may be done withmit pariiutenl, >
ii was in 15S8, so long as the present aad ap^
rent danger cantimMtb. And I am oTopisioa,
(as I was when we gave in oor ccrtifitalet to
his majesty) that tl>e king is tbe sole jo^U'
the danger, and bow to provide against it.
But biiwever, I ilo conceive upoo this recoil,
upon which I am to give jndgmeat, thallk
mandates in the writ 4 Aug. are not igaail ia
law, nor accordiue to the laws and cunooncf
the kingdom of England, nor well grvann
upon the certificate; and that the infeimiBoi
afterwards in the MittimuB cannot taiitt >
former writ (-ood, which mis Snt de&ctin:
And the.sherias who were, their retsni a nt
effectual, upon which judgment maybcgnti.
1 cannot sec how judgment can be Einn
gvod oKtretur, and not tetlro whom,aDdii>-
thing risible to whom we may find it: AiJ
tberetbre, in my Opinion, judgment is U W
given for Mr. Hampden.
The Archmebi of Sir JOHN FINCH, Kt
Lord tlhief-Justice fjf the Coon of Cob-
mon-Pieas, in the ExcheqaerChunbtr, is
the great Cnseof Sbip-Mohet. *
Awritunder the great seal of EnriaBdid**
•I Aug. 11 Car. when to the sheriff oTBnb
(sir Peter Temple) commanding a ship of 4o0
tons and 180 men to be ready fiimisned m4
all ammimitlon and tackling at Portimonlli h
86 weeks, to go with other of his oiiJMtj)
ships, and of the subjects, to defend the iloai"
nion of the sea, the realm being in dsi^;
and to charge and assess all his majestj'i »^
jecta, and all the inhabitants within tbiad
county, and nil occupiers, tenants, sad ttrr-lt-
nants there that have not part in tbe ship, «*
serve in the same, to contribute for, anil li>-
wards the preparation and Mtting fbtth afat
ship according to their abilities.
The record of Certiorari saith, that SloM-
Mandevile is within the said county, and "■
• Ixjrd Clarendon sbts, " Uadoobwdh nt
lord Finch's Speech in tiie eiclieqner-chanbtij
made Ship-Money mnrh mare abhorred, ■(■
formidable, Chan nil tbe comiDitinents bjij*
council- table, and all the distrenes lakcabt
the fberiK in Enftland : the major pari of""
(besides the conuoon unconcernedness in W"
mens snlTerinjti) lookinf; upon those pmcedis?
with a kind o^applause to ihemseiiWi » "U
other men punislied, for not doing as 'W.^
dona ; wbich delight was quickly determis''^
when they fonod tbdr own interest, hr tfce ••■
necessary looic of that Ar(;ani«nt, nalM'*''
dudad than Mr. Uampdan's."
Ial7] STATE TRIALS, 13 Ca-mLEs I. 16'S7 .—in tin Qae qf Sh^-Jtfon^. [121S
get the dutj ne a,vt to God, to the king, and
to the communweaUli, nnd to ourselves, I
ahall endeavour to aatisly mjr conscitaice in all
ihnt I can say : And iliej I'orget their dulj to,
[he first, aiici humanity towards u*, that suj or
thinl: tlie contrnrj of any one of uc Some of
us hnve fortunes and poiterities, and therein
have given hostage! lo the cotnmonwpalth, and
haie as much interest in ihii case as Mr.
Hampden. Tboae that want those blessing!,
wcut those lempialions that make tliem dream
of, or hunt for nonour or richos, to perpelunte
their names and families; to them nothing can
he more precious than the hatm of int^rity,
whidi will pre:>en'e tlieicjiames and memories.
It cannpt be presumed, but we wilt bprak out
consciences; since we well know shortly, as
the Psuluiist Miys, ' Cotj-uption shall say, I
' am thy fiiihcr, and the worm, I ata ibj mo-
' ther.'
Ill handling this case, no man cnn think I
shiiU do olhef than right : and herein I am
rather troubled fur n method than for matter,
r;ilher hotv (o diiipose of what I find, tlian to
lind whattodiipose. I shall endeavour shortly
and cleurly (considering tlie time J' have to
ipend, and the neighunesg of the matteri I am
to speak of) to deliver my opinion with the rea-
sons of it; and my endeavour shall he rather
to coiitrnct tlian umit. — 1 liave, with the-hest
care I could, taken notes of all that hath been
said for or ii^nst Mr. Hampden; and have
according to the measure of my underitandioj^
weighed and pondered ail that halb been spoken,
both nt the bar,, and by my brollters, and
bestowed many houis in meditation about
ibein, wliich the time of rest and repose might
have clmllcnged.
Before 1 enter into tlie case, I shall ipeak
of the steps and dtgrees by which this cause
has come to judgment; whereby it will rlearlj
appear, with what clemenc;, wisdom, justice
and goodness, bis majesty hath proceeded in
this business.
The first writ went out lo tlje port-biwnl end
maritime parls of the land, SO Oct. 10 regil,
upon advice taken betweeo his majesty and
his council. Before then, of these writs I can
say nothing; for I wus commanded at that lime
to attend anotber aervice, about another em*
Eloyment, the forest of Deane : But it ii well
nown, the resolution taken by his majesty
■ssetsedatareasonsbleraie; aad that the sum
of 30]. vioi assessed upon the lands of John
Hampden, esq. ; as by a schedule of 9 Mar. 13
Car. annexed to the Certiorari, may appear.
Whereupon a Mittimus 5 Mali 13 Car. with
this Certiorari and Schedule, was directed to
the barons of tlie Exchequer, to do there for
the sum unpaid, ' pruilt de jure et per l^em
' et consuetudinem .regni nostri Angliie fuer'
A Sci' Fa' upon this went Ibrth of the exche-
quer, to warn Mr. Hampden lo shew cause why
be should not pay the QOi. Upon the return of
xvhich Mr. Hampileu appeared, and demanded
Oyer of the writ, Ccrtionu-i, Schedule, Mitii-
mus, and Sci' I'li' ;. and upon faeariii); of them
read, lie demurred, and Mr. Aiiomcy joined in
the demurrer; then my lurd chiel-baron, and
t\ie court of excbei^iier, i«djnurned it to the
court of Exchequer-Chamber, desiring the ad-
vice of alt his majesty's judges: and look what
'advice we or llie greatest number of us give,
that court ought and must {pve judgment ac-
cordingly.
In the debnting of this case, there h>ith been,
great variety of opinions among the judges, a
tiling usual anii frecjueilt in all great cases and
consultations ; which sheivs co<iimonly tlie dif-
ficalty-of the thine, and argueth a cafidor and
clearness in the judges, beineen whom com-
bination and conspiracy wuuld be mott udious.
All that have gone bcfoie me, have in one thing
Agreed, iliat it'ts the greatest case that ever
came in any of our memories, or ibe memory
jof any man'.
As the sun arising in the horizon shews not
the figure so clear, as when it is beholden in
iLe meridian; so by mixing many impertinences
. wi.h the case m judgment, it hath been nppre-
liended to be of a far tenderer consequence
than indeed it is: yet tender and weighty tt is.
If equally weighed, in the one balance we may
put the regal power, or rather the regality it-
self; in the other the privileges and liberties of
the subject, in bis person and estate.
To look upon either of tlieee, or both, through
the multiplying glass of affection, is to behold
neither 01 ihem truly; neither can they he so
truly discerned, much' less to multiply by the
glasi of fancy : and therefore justice needs to
Bold the beam Straight.
I cannot fear myself, when vulgar censure
hath exercised itself upon. every one that batb
delivered himself upon this matter : yet I will
nol'iay, ' Domine, posuisti me in luhrico loco ;'
for we that do sit here, do move in a sphere,
and should be like the primtim mobile, accord-
ing to whom all others are to steer their course ;
and judges themselves must move steadily upon
their right p<)le% ait I hope this court will.
Whit jndge soever he be that is elevated by
papular applause, or aniinnted by the contrary,
to accumulate honour, is fitter lo live ' in fajce
' Roinuli quam in politia Anglin.' Nor will I
lose time in remembering the first oath of a
judge, ivho ^ould expel all by-respects, and
•pMk his coDsci«Dce, I hope none of us for-
VIlL. III.
meut aud learning of Mr. Noy,Atiamey G
ral, a man of great learnitig, and one that had
great insight into records,-by whom the matter
was first prepared, collected and digestetl, ami
afterwards imparted to some of his raajeatj'a
learned counsel, and afterwards to some other
eminent persons of the communwealth, of no
less judgment and knowledge in the laws of
this realm. And upon coosullnlion wiTh.(ny
Lord Chief-Baron, and bis iiiajeaty's barons of
the Eicbequer, his majesiy commanded tbots
writs to be sent forth : against the legality of
which, nothing hath been U'uty.alledged. It it
true they are not in judpoeaC ptoiierly befiut
4i
".., ..GooqIc
1319] ^ATETRiALS,.l3CH.I. 163T.— The King agaimJolai Hmipdat,a^. [iW
Primn Octob. aono 10, of bismBJeslj's r*ign,
.his niajest; was pleased to command me to
lerveia tlie place i lint now I do; and dmie
reconls, writs, cnramifcion", nnd oilier prece-
dents, were brought to mc, as lhe;r hud be^n
Iwnnerly f > niy Lord Chief Justice, nnd my
Lord Cliier Baron ; and we three did confer to-
getlier, and djil ddirer our opinions in wriltng,
under our handi, upon view and diligent peru-
sn! of a muliituiie ot'aiitient records, writs, and
oiber precedents of Ed. 1, Ed. 3, Ed 3, ili
[ind oiIm r records of other kin
■eigtiB ;
ttliicb ojjinions were Ih these words, ' Thnt"thi
* dbminion of the sen betongeth lo the king;
-' and ibat hs n suie lord and prnpiirtor of the
' icime. In which respect bis eicel lent majesty
' these regnlities and royal powers is to defend
,' againit All liosiile actions, intrusions, nnd iii-
* vatiuiis, as nell for the good of his subjects,
' as strangers, imponinf; and eiporiing tiieir
'commodities, and fur tlic defence of tlieking-
' dom : And for ihe better perfonning whereof,
* the Ciniiue.Pom have bi'tn required lo pre-
■ pai-esuch a iiamberof ships of dirers burdens,
' and men of arms, and tit such times, at their
' own clini^es, from time to time, as the same
' nrits nnd the present occasion required. And
' fiir the time, and place, and residence of
* their ntiendance, his mnjestj was the sole ap-
' pointer and only judge j and this was the cnn-
' Kant use inthorei«nsof those kings; and this
' was Bgreeslile to ihe common law of Cbe king-
And 15 Not. 1634. before the neit summer,
his majesty finding the danger to grow general,
■nd conceiving, that there wai llitle reason
these matitime parts should hear the whole
chnrge, for that the whole realm was interested
therein; afterwards he required our opinions,
viz, my Lord Chief Juslitje, my J/ird Chief Ba-
ton, and myself, jooe 1635 ; After conference
together, we deli tercd our opinions. And we
.vpon consultation conceiving the reason of the
precedents before, and the rule of the law, and
reason requiring, thit.when the whole kitigdnm
w:is in danger that the defence that concerned
the whole kingdom should be borne by aH the
subjects of the kingdom ; this was first verbally
delivered to liis majesty, and afterwards we put
in writing under «ur hand?, in these nords:
' Whereas the charjp of defending the sea had
'been imposed upon the Cinque-Ports; so
•where tiie whole kingdom k in danger, the
* whole charge oughtj^o be matntained by all
•the subjects of the realm.' And amongst
other writs, those to the sheriff of Bucks went
forth at the time aforesaid. After nhjch, his
mnjesty finding some question made of the le-
gality of it, he called all Ms judges, not singi'
nor any one in a corner, hut because be woul
liRTe every atie of them truly infhrmed, rerjuired
them to adfise together, and every one of them
by tlienistlres to give bis opinioi
which, we (crorally, and erery _ ,
wad all of lu togetlur, delivered out'opinioos
under our hands, in this mn oner, viz. — 'Tlnl
' when the good and safety of ihe kingdniiia
* general is concerned, and the whole tiagdotg
' in danger, of wliicb yoor majesty is the aile
'judge, your majesty may, by wnt under ibt
* great sea) of England, coinnieDd all ibe uib-
'jects of this yonr kingdom, at dieit owo
' cha^e, 10 provide such a number of slupt,
■ with men, ammunition, and victual', aad M
' EUch a time as your majesty shall think fii, liii
' the defence and safeguard of the kingdom,
' from such danger and peril: And IMi,bj
' (he taw your majet'ty may compel the <loiii|
' thereof in case of refusal.' In which du
clause ' his majesty is the sole judge,' maaaif
put in by ten of us ; m v hrotlier Hatlon Utiif
not seen nor weighed the precedents, took lnut
to advise, and gave no opinion, till cnnfcmct
between us : And my brother Crooke had iLt
same reason, being not acquainted Kith ibM
writs, but yet subscribed his opinion tingl; bi
himself, Dec. 1635, vh. ' That where thegonit
' and safety of the kingdom is in daiytr, ot
' which Ills majesty is the sole judge, hi» oa-
' jesty may command all his subjects al tbeir
' charge, to pravide and furnish such shin to
' sea, with men and ammunition, as ibiiU
' necessary for llic defence lliereof.' And lit*
I hold to be agreeable to law and reuin; and
though I perceived nothing of this hit ofinM
in his argument, yet he still boldeih it.
Wherein I observe, 1. That the king a k*
judge of the danger, and nheiher it U inuu-
nent. fi. Not only that the king may in shA
danger cnifimand his subjects to defend li*
kingdom in case of neceasitj, but that tlx
charge of the defence ought to he borne hi i'
the realm in general. WhichopinionKBimwt
independent than the rest, for that ocr npiiiM
before ii bad relaiion 10 the precedrnt of miri-
time parts i but this was, that llie sahjed ni^tl
be charged absolutely ; and this was delitfitJ
by him readily, chearfully, atid without bnil*-
tion ; he will not deny it. — I speak noiof llJ
as of a thing whereby he ought to havebw"
concluded, but that all the world should kMf,
that his majesty's regal and legal powergohw'
in hand togoilier, and ihM his princely liwe«ii"
aifection to hii subjects are such, that be "
willing to prevent nil mistakes: And Iipeitit
aho to this end, that when judges linglj tielf*
tbeir opinions to the king, not exanuninglM
rensqns that moved ihem to it; wcou|hllii>>*
very good and pregnant rensons to vaij !"•
that opinion, though it be not binding.
This his majesty required for his o«n piin*
satisfactioo ; and this I dare boldly say wat "
delivered by us, that no one judge k — **•
4..VI«.<. "J «J, «ilBh ii.f Vli« |""F»'- "~, .J
li^ion of the rest. When his mBJes|,T w"
Slackness in some of his sabjectsincantrihiiliit
to this charge, and thinking that it procewW
rather from misundcrjianding of tbel'",*"'
fi>r want of duly, n» desirous, on t of his piwfv
love, to avoid all mistaLes, he did upnn S F*
iSSB, send a letter to all his tnajesty'i jwlf*
and barons of the Eichequer,Aereby !«««'''''(
our tsv«ral opiflioos : about wblcb «« ut ""
I3SI] STATE TRIALS, 13 Chauss I. 1037.— » tin Cate t^ Sitp-lUowy. [12»
rommonwMlth. It ia not nell to clog the cate
frrrcd, and (be particulars, wherein our opi-
pioiia ncie rtquiretl, bnd been coasidEred of
before, ur else ne were much to blame ; for we
had time cnoti^li to iliink upon it. And tiiougli
our ananeta one relumed ihe 7th of the same
moDtli, yet we had it in our coinideraltoa from
June IG35, which was 15 munths before the an-
oyrr relurued ; lo there wai no snrpri/e, I
will spaie to Dame onr opinion ihen delivered ;
fot it Lath been repeated defore. When we
came Co the debate and roiiug of this, we brake
the Writ into several parti.
I. When tlie good and lafet; of the king-
dom in geaeral is concerned, and the whole
kiogdont is in danger, Whetlier it ought not lo
be defended at the charge of ihe wliole Ling-
, dam ? And agreed it wiu, una wre, nulio con-
Iradictntr, that it oujbi. 3, Whether the
cliai;ge of the defence mi^t not be command-
ed by the Vinti Which was also agreed, that it
niBhi. 3. Whether the king was nut the sole
juo^e, both of ihe danger, and v hen and tiow it
was la he prevented r Wherein my brothers
HuiioD and Crooke did agree it hktHise, that
be was sole judge of the danger. What their
opinions ate now, and wherein they differ, with
their good leave 1 shall examiuej and their rea-
aans and diSerencei; (iliough indeed of the
king's being the sole judge, in' iheir nrgumenis,
iny biolber Croake spake nothing of hi& opi-
oiou therein, nor my britther Ilultuli nothing
aigaimt it.) But we delivered not our opinion
upon lite hje; nor was it so required of his
mmesty.
It was then also declared by all of un, that
i*e did not deliver our opinions as binding, nor
were they so required liy bis majesly ; of all
which I (tare boldly say, his majesty was truly
informed. And thia waa nlso soon after pub-
lished by his command, aud seconded by mj
Lurd Keeper and Lord Piiiy-Seal, tlie first of
them using iDnny ar^uroeuis and suund collec-
tions, delivered it lu charge to hi* majesty's
jud|;es, to deliver it iu their circuits, which
might bave antisfied any that did not respect
tlf^r own private benefit. And Mr. Hamp-
den, I Elunk, of nil halh the least cause to cum-
plais, being nssested but 3l)i. a coniemptible
sum, in respect of his oonuul revenues, to bring
this case to judgment: yet his majeily's de-
mency appears to be great heiein, in that he
would not dehor nny tu question the lanfulnets
of it, tbon^ be hain permitted arcana imperii,
nay, vaptriam ifiam,'.! would to God I could
not say even loo licemiously) to be debated at
this bar; yet I apeak it not byway ofreprehen-
sioii, but admonition to the counsel, who are to
1w commended, in that they litive done their
duty fiuthfoliy for tlieir client ; yet J may say,
aucb B ravelhngand diiing into thcking'i reve-
nue, and secret estate of princes, and what suc-
ceeding kings may be, or may do, it doth not
well become tbcsa present times : it would not
bave been endured in the best preceding [Jmea.
It was not well done to doubt succeeding pos-
terity, iluit promise tu much aa ^ny of tbeir
(iredeceasors bait done for the good of tbe
ich BO many precedents, impossible to be tho-
roughly observed ; but our examplr, I hope,
&hai] he'B bar hereafter, and our ciire shall be
to prevent il, being a great hindrance of jus-
tice, and c]\iK of great expence to the subject*
long attendance abuul ihcir causes here ; which
may prove b greater churgc thuu io providing
ships fur the realm.
0 die cnse
nse now, as it stands in judg-
wherein my method shall be,
meat befoi
I. To examine whot the case i*,— ii. I wilf
give my opinion of the case, wiili the reasona .
thereof — iii, I will answer the objections
mode against it. — iv. I will speak to the lega-
lity and form of the writ 4 Aug. the Certiorari,
the Mittiuin^ and Sci' Fa' out of the Exche-
quer. And to all tlie^e, with what brevity I
can, I will speak according to the weiijht of tiM
case, where variety of opini.msgiveijust caus«
to balBnce them : the cusc must arise out of clio
Record, and must stand ur fall upou thtO.
I. For lliecaseitselfi and the rf in, 1. I will
shew what danger [here is, that is the grouod
of the charge. 3. Wtml things there are to
maiolain it : aa for otlier things, tliej tend. to
the destruction ofilie case.
.1. 1 am of opinion, that the danger of the
whule kingdom ought to be eiprebsrd clearly ;
for else the gtound-work I'aileth ; for if no
danger, no reason' of the charge. And I aia
of opinion, that in the wriL 4 An;, it ought 10
he expressed; and nut in the Mitumuij tiiough
Bs my brother Jones obscn'ed, tlie Mittimus
comes time enough lo Mr. Ilampdrn (o give
him notice, yrt he was not liable to the charge,
but by tlie writ 4 Aug. (1.) It is objected, ilia
danger is not clearly eipressed; for it is not
upon words of certainly, hut by way of unccr-
laiiiij, ■ Quod datum est nobia inlelligt'' ('''.)
For the causes of the writ, ihnt it halb not re-
latiou to ihe danger of the kingdom, but lo de-
fend the sea-coasts against piraies, &c. And
they are not worthy of n royal navy, as bro-
ther Crooke also observed —But 1 bold Jirst,
tint (he danger is sulficienily cipreased, ' Cer-
' luiu est sicut res hahet ; datum gubis est in-
'telliei:' A thing very ordinwy wiib ui; and
in all former nriiB £i relaiione, &C. 'Quod
' vuljcaris opinio est, ^'c.' Allbsugh mj lord
cliief baron psmlleled tliis En the Cuse of Pa-
tents, ' eii certa scientin, ice' which is oothiug
alike: for there before the king pass aany
lend, he may be informed if he may do it : bl^
1 hold, OS this case is, the danger will nut per-
inititlolic examined, whether there be just '
cause of feari; for then it might receiie delay,
nliich is dangerous, and the kingdom be lost
whilst we are disputing. And ttien fur the
phrase itself, ' Datum est nobis intetligi.' It is'
' mus,' niiue c.in deny but it bad been sudi-
cient. Aud what difference is there beiween
* intdligimus' and ' datum est nnbia inielli^ \'
That acta Ibrih tbe kiuraledge of ih* danger.
Goiwlc
1/33] STATETRIALS, I3Ck.I. l6iJ^Vitia<^agamtiJt*«HMip^.aq. [\m
and this shent the mmni wherebf he doth
know it : ' Ut datum est nobis intelligi.' This
fpes fnrther th&n ' ex audjtu, rumor Mt, &c.'
Therefore unless the king iliauU go out of the
kin^om to »ec the danger, can it be other-
wise expressed ?
(3.) 1 liold, that the danger itscir, wiih the
metivesin the writ, nre sufficient. — The motives
are, grent depredBtiani of [he subjects goods,
and lives: but it is not upon tliis 1 rest, for this
hall) relation to pirates leading many Christians
iuto caplivit)!. These are good motivei, anil
(a* one of mj hrothers saiil well) though these
have relation to pirates, jrec br'Huni piraiitum
poinii at as much terror as iianni^t ad /wrfoj.
— I ihall not relj much upon that, thut the
enemies of Christendom anil of this nation did
prepare ' ad mercatotes nostroa tilterius mo-
' lettand',' nor ' ad return gravand' nisi cititu
' remedium ajjpunatur, &c.' But this ' Con-
' sideratis pcriculis quK undique his guerrinis
' temporibus iinminentibus ita quod nobis et
' subditis nostria defensionem maris et regni
' nostri omni festinutione qua poterimua Cun-
< venit, &c.' shews odiernise than for the pi-
rate, this defence was rrquisire. Therefore
the neit clause is ' Nos volentes defensionem
' Vegoi, tuitioneiD maris, securitatem subdilo-
•rum Dostrorum, &c,' And therefore that
* salva conductione navium ct m ere hand iia rum
' qua ad regnum nostrum Angliie venerint, et
' de eodrm regno ad partes eiterns transeunt,
' &c.' takes not away the former works, nor
limits them. — As for the clause in the Mit-
timus, I stand not upon it, nor that ' Ralus
•regni e» populi nostri Angliae periclitabatur,
1 nostrornm pro lui-
(4,) Admit there had been no preamble nor
eipressment of danger, I hold the command
itself is sufficient fur setting forth the danger,
which is, that the shin be with other his ma-
jeslji's sjitps, and the ships of other his majesty's
subjects ft Portsmouth the 1st day of March
neat following; the words of the record be,
* Exinde cum navibui nostris et navibus alio-
' rum fidelium tuhditor
* tione maril et dcfensione
' troniin, &c.' And particularly to express the
danger is not necessary ; for ibe ting, the sole
ariiiter both of peace and war, best knows it ;
find it was the practice in former times: and
•o no wisdom for tlie king to eipress the dnn-
ger in particniar, when arms usually gn before
heralds ; nor is it the use of princes to compli-
ment, to lell ihe enemy they will, or intend to
invade tlinr Innds. And therefore I liohl,
though it mi)iht be more clear, yet tatit tit
^ed ivffirit : I in my o»n conscience am sa-
tisfied that the danger is certain enough ex-
pressed in tlie writ. And so I have done nitli
the lir^ pirticulnr, the danger, which was the
ground of this writ.
(3.) As to the second particular, what is at-
ledged lo be for the preventinjj of that danger ;
my brother Hutton, and my brotlier Crool,
would hnve it to be raising ot money, by reason
(•r that clause in the writ, for tlie distribution
of the iarplu«4^e. But the Accord is, ' ad a»-
■ sidendum omntt hmniiies et ad contrlbuen*
' dum navem vei partem naris non habentes, |
' &c.' which shews it cannot be for monev,
neither is there any colour of monev ; for it i»
to find a ship : and if they have not of their ■
own, they must build, or buy one with iheir J
moiiey. But there Is a great deal of diBierence
between payment of money and fiadii^ of a
ship. As if my brother Croohe be required to
find a light borae and arras, he must buy one,
or hire with bis money, if he hath none : but
yet the charge is not for money, but that be
finds a light horse.— But hiy brother Craoke's
objection IS, if any surplusage remain, it shall
he divided; and so the sherilT is tn detain «>
part of it, but employ it for the public good, j
and not convert it to his own proper bmefit. I
To this 1 answer, that this shews the equxlity of I
the charges which is fittest to be by pBrmoK
of omney.— My brother Crooke hath forlber |
objected, that an inland county <3nnot build
a ship : a great trouble for the county of Bocks,
so for fram the lea, to bvild a ship. To this
I answer, that thnse of Buckinghaoisfaire may
hire a ship, if they cannot build one; and the
words are butpnrare, not for the building but
preparing a ship ; and it is not meant that they
should build it there, but that they should coo-
tribute to the building of a ship in a most fit
and convenient place.
ir. I shall DOW give my opinion of the esse,
with the reasons thereof. 'I'he king Lnowing
and declaring the whole kingdom to be in dan-
ger, and necessarily requiring his subjects to
defend nnd provide for this danger at sea, he
miiy theieupon command all his subjects to
prepare ships to join with liis navy royal against
the enemies of the whole realm, to defend the
whole renlm : and it is clear in the case, aisd
it was the meaning of us all, that the king
must join in the charge, it being far firDm us to
eicuic the king from his ratable part.
My reasons that the king may thus chaije
his subjects to join with him in the defence of
the kingdom, are these. — 1- The defence of
ihe kingdom must be at the charge of the
whole kingdom in general, 3. The power of
laying this charge is, by the policy aad fanda-
mental laws nf this kingdom, soldy invested in
the king. 3. The law that hath ^iven this
power to the king to do these things, hath
given fain means to put these things iti eie-
1. That the defence of the kingdom romt
be at the charge of the kingdom, I shall prove,
(1.) From the law of nature, which is, that
every thing in nature ought to defend itself.
(2.) From the rule of reason : - for ' Quod
■ omnes taneil) ab omnibus supportnri debet.'
(3.) From the' true use of all that we enjoy,
wMch must be abused, if not employed to aiid
for the good also of tbbie that come after us;
1325] STATE TRIALS, 13 CiiAE'tES I. 16S7.-— mthe Cax<^ Ship- Monty. [1286
and i)«e«SMry il ii for our posterity to Ittve nil
sura and safe. A good patient will spare some
blood to prCMrrve liis own health ; and a gnod
husbiQd will spnte some of his best iiround for
ditcbe* and f«ices to preserre the rest; hod
he is an ill husband that fiods not safet; in that
be dolh. (4.) From the law uf property : aa
eveiy one luich a particular property in his own
goods, so ever; one hath a property in general
in another man's goods, for the common good.
For the common wealth hath a property in
every man's goods, not only in time of war, but
•Iso iq time of necesaily in time of peace.
Therefore if any man lake away my goods with-
out my consent, I have my action, and recover
damage. Doctor and Student saith. Both a
trespass of lands and good* it punishable by in-
dictment, and trespass, at the king's suit as
wdl as at the SDbjeci's : and this is l>y reason of
the public interest (be king hath in erery sub-
ject's goods for the common good. — Now the
rule and manim before so clearly and fully put
■tndagreed'by all, ii, that in case of necessity
that il appnrent, the subject ought to defend
the kingdom. And my brother Croofce agrees
in case of danger, so it be eminent, all men
are bound in thrir persons and estates to de-
fend the kingdom f and he says then they must
atponere te et luo .- I think he meuns a man
that lakes a journey may carry his money
with him, tfel na : or else he means the king
cannot command their money without their
consent; of which I will speat in its proper
. place
S., I come Don to the second part of my ge-
neral head, which is the power uf laying tliis
chacve. By the fundamental laws and policy
of this kingdom, the sole interest and properiv
of the sea, Ike. is in the king, J will not speak
of this monarchy, this is rather 6t for civilians,
historians, or tlie p^n of adirinc, than a judge
at Weslminster-hall : nor will I speak of the
division of monarcliies : the potts say that
Satam was the first founder of kmgdoms. Only
this I will say, thnt for the excellency of tlie
government of this kingdom, through God's
blessing, none are mote happy than we. Look
and see in other nations, and tell me if you can
find out any place where they can and do
enjoy those mercies of peace and plenty which
we do; so as we may justly say, ' O fortunatog
:• Noi
will I perplei myself with the originul of the
nation anil monarchy; some stories are fabu-
lous, others doubtful, not any so clear as to set
it forth ceitainly, though they speab truly what
is sufficient for us to know ; nor is he the poorest,
* Qui now potest nunierare pecus,' nor he one
of the worst gentlemen thiit cannot shew the
-orieinal of his pedigree. The excellency of
this monarchy is, that it is sufficient it is a mo-
narchy; and ihat ilismost tnia what Fortescue
aaitfa ofour laivs. 1 agree that Fortescue was
a lord chief justice in Hen, 6'3 time, hut not
chancellor of Bnghud. Sea and Wd male
but one kingdom, and the king is ipotitus
regni ; Magdalen College Case, sir Job, Da-
vies' Reports, Stat, 34 Hen. fl, 1 Elii. and 1
Jac, The soil of the sen belongs tu the kin^,
who is lord and sale proprietor of them ; nod
good reason why lie should, as is well maii>-
tained by Mr. Stiden, that worthy and learned
author of Mare Clavum ; and I hojie shall he
by his majesty mniniaineil, with the sovereignty
ofthe sea: and \Yithout a nary this aulhorin
can do but little good.— The king holJs this
diudeiD of God only, all othcn hold their lands
of him, iind he of none but of God : but this
is but to. light a candle for others. From
hence only I wilt observe, ihnt none other can
share with him in his absolute poner,
A parliament is an honourable court; and I
confess it an eicellent means of charging the
subject, atid defending the kingrtom ; but yec-
it .is not the only means. An honour the last
parliament was pleased to bestow on me,
which never any shall with more respert re-
member than myself, when theyjwere plinsed
to chuse me for their Speaker. , And as my
brother liutton said, I coficeive it a lit way to
charge the subject j and I wish that some, for ,
their private humour, had not sawed the tares
of discontent in that field of the commjn- ■
wealth, then might -we have expected and
found good fruit. But now the best wny to
redeem this lost privilege (for which we mny
give those thanks only) is to giVe all nppnrtune
appearance of obedience nud dutifiilness tp '
his majesty's command. The two houses of
Enrliament without the king cannot make a
iw, nor without his royal assent declare it:
he is not bound to call it hut when hepleaseth,
iior to continue it but nt his pleasure. Cer-
tainly there was a Ling before a pariiament,
for how else could there be an assenilily of king,
lords and coinmuns > And then what sove-
reignty WHS there in the kingdom hut this?
Hi) power then was limited by the positive
law ; then it cannot be denied but originally
the king had the. sovereignty of the whole king-
dom both by sea and land, who hath a power
of chargine the whole kin^jdom,
3. The law that hath given that power, hath
given means lo (he king by this :iuth(irity to
put il in execution. It is a very true rule,
the law commands nothing to be done, but it
permits the ways and means liow it tnay be
done ; else the law should b6 imperfect, lame
and unjust ; therefore the law that huth given
the interest and sovereignty of defending and
goveniiDg the kingdom to the king, duth iilso
give the king power to chnrge his subjects for
the necessary defence and good thereof. ' And
as th^kingitbound to defend, so the suljccts
are bound to obey, and lo come out of theii"
own cuuntry, if occasion be, and to provide
s in foreijin war; and such aVc
ow to find guns instead of bows
ammunition, as powder, shut,
ea and land he but one entire
the land ; and then aU are hound (o provide
ships, men, ammunition, victuals, and neces*
1227] STATETRIALS, ISCm.L 1657.-
uriet for tbM defence. And fi>r u) iiUnden,
it i> mobt necmarjr for u> lo defend uunelvei
M tea: tberefurc it vat ihe great at^umcnt in
liSa, nbedier it was best to £)('" *"^ ^''^
lojal Bud iiiviDcible navy or Acmada of Spain
M tea, or luSer them to innd ; and it »ai n--
■olved clearly, that ii was better to fight with
Ifaeni nl sea, ibuuf^h we lost l be UiUle and our
ibips, than to buSer ibrm tn bind. — But, Ibeo
there was Hannibal o J portai. To Thiil slmll
aasncr afLerirarda. But liere tbe raarilime
towns bhdll not lielp Die inland, nor the inland
tbe loariiioie, but eadi ofcUem bear tlieirown
charge, and defend tbemteliei. But oflhisl
•hall likewise speak liereafter ; >et undoubt-
edly it is reasonable tbat both should join to
delend the kioKdom in case of necessity.
Now I sball eudeavour lo prove tliis clearly
bj autlioritjr in bw, aod precedent* in all ages.
Aad, ^t.) It is a great authority in law, that
tbere is no eiprees auiliority against it: though
there have been some books cited by my brck
tlier Button and my brother Cronke, (winch I
■hall answer in their due place, amongst otlier
objectiuns) yet tliere is not ooe authorily or
opmion, much less rcaolulion or judgment, in
necessary lime of danger, clist says, tbe king
may not charge the subjects for deience of the
kingdom, (9.) All these authorities that pfove
the king it trusted with the defence of tiie
kingdom, and in divers cases give him aid,
taxes, subiidiei, &c. prove that the subject is
Irouud in cabe of doikger and necessity, to pay
them to the king fur defence of the kingdom.
(3.) All the authorities of mur^e, pontage,
•alt^pf trp, f(C. shew that for the gnnd ofthe
public tlie king is interested iu llie e«atei of
the subject, and may charge them much more,
if for tbe well-being, than where the being
itself of the common wealth is at stake and in
danger. (4.) The autliority of commanding
the petsoni of tbe suhjeclsiocome out of their
own couutries provei it. The power of com-
manding the person of the subject into Ipieign
parti ii in ihe kine ; much more the state of
men should be at Tiii cotaniand, iu case of ne-
cessary defence of the kingdom. (5.) All tbe
commissions of arraying men in Ed. 1, Ed, a,
Ed. S, Ed. 4, Hen. 7, and Hen. 8's times, &c.
■re grounded upon the same reason, aod went
out Tor the nece&sary defence of the kingdom.
TheK writs are not to command the peraan,
but a ship only, ' juita facultatessuas;' which
are answerable in leaeon to the enCient prece-
From authorities I ciinie to precedents ;
though they be not judgments, yet they shew
tbe practice of the law : and what better book
have we in the law than the book of precedents.
I then
ofm
for we have nut the twelve tables for our com-
mon laws P The common law is but the com-
mon usage of the land; and therefore the prece-
dents aljedged by the king's counsel are of eood
authority to prove tlie laws in this case : where-
in I shall not name tlie particulars, they have
Iteea well remembered l>y Mr. AUmatj and
-Tie King agaiMtJolotHaiiplai,aj. [BM
Mr. Solicitor : but I will mentiw ike m^
(taiice of them.
The liist sort of preceden ts were befvit ibt
Conquest, in tlie times of Edgu-, Alfred, Eibd.
dred, &c. tbe use whs lo detend the Liugdn
at the cbarge'uf ihe whole kmgdom, b; tk
edict of tlie king. A itmng inference trom IU
precedent of ilie grant to ihe df raj and cbareb
□fdivcis privileges, wiiii these eiceptiwi of
Pontium,&c. in the times uf Edgar, Alfitd,
and Ethcldred, &c.
The council of Enoch in Edgar's time, sbM
606, mentioned by the learned anli^uaij u
Henry Spelinan, (u. 510. And after iho^e kit-
lows ■ ha sunt conslitutionei, &c.' fb. 513, >•
which ar? excellent things, good for church ud
common-wealth, op. S8. Navales Eipofr
tiunes, if it be no act of parliaineol, yet ss-
thing is more like an act of parliaminl: lib
the phrase of those times, and certainly it «*
either an act of parliament, or a proof uf the
king's power, thai without parliameat, I*
might charge the subject tor tlie deliniixutd'
kingdom in case of danger. And tlte nnnl n-
pcditiou is used for war, and •ometioKS iiir u
army, us CRSiiodciru* giving the reaiun uf lit
name says. In tbe third place, il sU«tli«
practice of tlie kints of England to chaigtriKii
subjects fur the defence of the kingdoaHDOC
of danger. -Now if this cliaiie uf Uiii«rl','»
not tiiken away by any of the acts of pit*
meut, it remains still, saith my brotlier lluilob
And so I think it duih, or something in bn of
it; for it is not taken away by any act of|>>'-
In these precedents, oliieive, (I .) Tbit Htj
are all upon tbe same common reawn ihatiu
is. (9.) These writs are not limited fiaikii
numlicr or time; so tiiey prove the power ml
in the Ling to chnrge his >>ubjects. (3 ) i" diw
precedeuta, some were to inland cuunMi, u
Bucks, Huniingdon, Bcdlsrd, Leicester, Oi-
ford, Berks, &c. And though they •tot v^
generally to all counties at one time, jttitfj
a thei
Atid if ilx
danger bad required it, the king mi|hi, ii
pleased, havesinltoall asweU as to WM.
But because there was never any time, wnw
all the ammunition in the kingdom wudin
at one time to one place, may ii nU tbireii>n
be done P the commanding sometimes ofoiCi
sometimes ofanother, is an argument the; iW
be all commanded as occasion requires, i"
not build my opinion upon coofiised noWWi
but on matters digested, on precedeoii "
weight, the chiefest in respect of time : and ^«
the mnking of Magna Charts, OHen.S, Ho-
S, m. 48, 18 Hen. 3, ni. 7, 13 Ed. 3, ai. V.O
Ed. 3,ra. 4, aaEd. l,m. S3, aod many iidf
in Ed. I'slime, there is proving ajDtribnWii
towards the maintenance of the sea-cossta 6*
inland t-.wns, as 25 Ed. 1, m. 13, tlie sbbM"!
Rjbertsbridge's case is a fiill precedent, not-
withstanding all that hath been said >giu»"^
So 9 Ed. 9, pan 1,30 Ed. S, m. 7, « M.^
Scot. Boll. T Ed. 3, ni. 9, 10 Ed. 3, a. IM'-
U Ed. S, 19 Ed. 3, 14, 13, 16, 18 Ed.3, tf E*
Goo;;lc
1999] STATE TWALS, ]3 Chaxlm 1.
a, m. 34, 85 Ed. 3, Rot. Franc, m. ff, 35 Ed. 5,
1 Kd. 'i, 1 Hen. 4. Yet Hen. 4 hacl as niuch rea-
son to please LhepenpleUBiiy kin|;of EiigUnd.
Soin [{en. 5'* time, lhou);h busied in the glurl-
au> conquests of Frnnc^ or rather recoverjr of
Fnulce ; GihI furbid wc tbould &ee such tiinea.
So in the times of Ei<. 4, Hen. 6, Hen. T, and
Hen. 8^ hy viaj of ofieniive war, writs and
C«raiii)*>ioDs to iheir lalijects to contribute 1o-
nard it. So iti queen Eliz.'a lime, comoiissions
to<r»rds (be mainttnniice of the kinEdom, 11
Elil. 41 Elil. H commisiloD to (he earl of Nnt-
tiflghain. In 1S88, leitera from the lords of the
council, trhich letters liad the queen's nrits in
them.
But mT brother Crooke answered all these
with this rule oflair, < Judicandum est legibus
plea and precedents are giind hw ; ibey are au-
thorities out of the taw, and whnt of more cer-
taintj t Digest of »ril», these are inler oracula
^i''< precMlents (tmwn up bj clerks ; though
thej puii Himetimet tub tileniia, j^et aie thej
food authorities in die Ihw. The abbot of Ro-
' bertsbridi;e's cnse ba precedent af great autho-
ri^. But it is Hlledi:ed, do precedent goes to
inland counties. I answer, in trutii the prece-
-dents ore quite otherwise ; fur ordinary defence
tliejr g" to marilkne counties only, but when the
danger i* geDernl. 10 inland countiei also, and
■fteranoiher manner. For this I refer you to my
brolher Weston's argument : These could not
be so frequent; for first, such danger was but
seldom ; Secondly, We had then double hosti-
lity, one from France by sea, another from
Scotland by land. Examiue the precedent!
iberefore. .
Another observation that my hrotlier Crooke
made, is (bis, thai we are compellable ht our
persons and arms, but not with any sum of
money. I answer with my brolher Jones, that
toila foi-parn nreabove Aunii/orfunf ,- hut this
Kvrer of liberty lo commiuid the persons of
subjects, he Bfjrceg is in tlie kin|; ; then 1
•ay, more reason that their estates shoijid be
tii lii* power in this case of defenpe. Besides,
the precedent! warrant the quite Contrury, and
wages have been paid the soldi«rs by llie sub-
III. The third thine I sfaalt do in this case,
is the anstrering of dll the objections which bave
been maite af-^iinst it, which were three.
1. That this writ waa against tlie common
Uw. 9. Tbnt it was against tlie statute law.
3. That many inconveniences will grow lliereby.
1. Itisagaimt the common law, because it is
without precedent: tliisis the first of ibis kind
since the Conquest ; and where there is no pre-
' cedent, the law will not bear it ; Littleton, fol.
39; Lord Cnke's comment upon it : , and they
put divers cases cu the same purpose. 1 an-
•wer, tbnt there are precedents fur it, and the
3. The second objection is, that it is against
die freedam of tbc sut^ecc, whu hath ■ true
1637.— in (Ae due c^.Skip-Mmey. [|93(l
property in his Koods, which cannot be" taken
awny wilhont his actual or implied aonsent.
Lambert, f il. 994. Mig. Char. \1 king John,
Mnt. Paris, fol. Hi. Furlescue, fol. 9, cap. IS,
&r. 13 lien. 4, the Chamberlain of London's
ca.e, Reg' fol. 197, Fili-herb. Na. Br. &c. I
answer, tliat cha authority of Lambert reb^in-
ing tlie laws of the Conqueror, is, < Volumui et
' ouucedimus ut omncs litieri homines tatiui
' moiiBTchix regni notiri habeant et teneant
' lerrns suns et posse^siones suas bene et in
' pace, hberis ab omiii eaactione injusta, et ab
' Omni tallagto, ita quud nihil eiieaiuc vel capi-
' atur niii per commune concilium,' &c. It
cuntiot be construed that ihey should not bo
ttiargcd, but that they should be free froio all
unjust taxes. The king is not concluded by th«
tubsequent words ' orane lallagium ;' (his can-
not be so geoerrli, but the king may impose just
chaiges towards tbe necessary defence of (he
whole kingdom. For this is meant, as by the
word tail laRe plainly appeareth. ' Tallneium'
is derived from a French word, and is inched a
cutting word, and therefore ' injusta eiactjo ;*
which shens that for the most part it is taken in
the worst sense, and as my brother Crooke wid
it, the manner of etpounding it mint be from
the law. But my hroiher Crooke quite left out
these wurds following that deslare and expound
ibe former, vii, ' Staiuimgs et firmiter priecipi-
' mns ut omnes tiberi homines lotius ref^i prvd'
' sint fratres conjnrati ad monarchiun nostram
' pro viribus suis et &cultatibits contra intmicos
' pro posse sua defendend' et virifiter servand',*
&c. whereby it is apparent, (1.) Thnt the king'
d ■■m is to be defended by the whole kingdom
' pro facultalibos ' with their goods, as well a*
' viribus' with their persons. (9.) It comes aFler~
the chapter of tenure and services, by which
they arc bound to deTend, ■ terras et honcjres
' suos,' &c. which shews tliat he mmnc not to
dischai^e any from the general charge of d*<
fending the kingdom in case of necessity.
The next objection is the charter ofkiug John,
' Nulfuin tallagium tmponatur nisi fier com-
' niuiM concilium.*
I answer, the words are concerning the de-
fence of hi* own person, and not the kingdom;
and tlierufore it is' excepted, ' nisi ad redimen-
' dum corpus nostrum ;' and in the original act
these words arc left out. Sculaee, murage,and
other aids there mentioned, shem thnt only
those were meant, thnt were of private benefit.
They were not to be imposed by the king upon
any subject, without parliament, but not to bar
himself from laying such a* were for the public
good.
The next authority that was objected, was
Fortescne, which was must pressed and 'insisted
on by my brother Crooke. Before I come to
the words themselves, note (1.) The time when
he wrote that hook, it was after all the aelj of
parliament that took away the royal pown;
yet it did not mention litem, so as must need*
relate In (he common law. It wtas writ when
the civil wars were between the two houses of
York and Laocaster, and be himself w«* ia
1231] STATE TRULS, 1 3 Charles I.
exile ; nn rime then to displeaie th« praple.
(2,) It slicwt the difference between kingdoms,
nben n monarch Tutes, that cliHlleiif;eth oil
power over fa i'l subjects, Hiid ■ moaHrch that
goverDS Bcc»r4ine lo ih^.posiiive laws. Tbe
wonts thai SPemed to be n^ningt ihii charge are,
ful. 9, cap. 26. ' Hex An^iiae politice iinperans
' geiiti sue ncc legem ip!>e niue Bubditorum as-
' lenau muture puterit, nee iulijecium popalum
' < rtriiiteiiieiu onernre Impoiitionibus peregrinis.'
cap. 13, t"i 33, ' Ken caput corporis politic!
' niutarc Din potest It^es corporu illius ncc
' ejusd' populi iiul^tnntiH* proprias luhtrabere
* tecliunBiitibus cisaut ioviiis,' And cap. S6,
fol. 84, « bicli my brother Crooke says is tha ei-
preaa authority in hoc individuo ; the words are,
' Rex rt-giii Angli« ibidem per se aut ministros
' tallagia subsidia aut quovis oaem alia imponit
' legibiis suis aut leges eorum • . .
jodic si
vtlv.
aieg-
11 parliamenlo siio expresso,' ttc,
From tliem all, I take the true meaning of
bimlobe; and I hold, (1.) That the kiogdom
ought to be governed by the positive la.ws of the
land; and that the kiog cannot change or make
-new laws without a parlinment. {2.) Tliat
the subject hath an absolute property in his
goods and estate, and that the king cannot take
them to his o<rn use. (3.) That for his own
use he cniinot lay any burden upon his subjects,
without the sabject's consent in parliameut.
(4.) That for the benefit of trade, the king may
lay iitting imposilioni, and may command that
which is for the necessary defeace of the kuig-
dom ; which is no command ofcharge, but com-
mand ofemployiog. (5.) I answer therefore to
the great objection, that the liberty of the sub-
ject IS lost, und ihe properly is drowned which
they have in their estates.
Irirst, I say, all private propu^ must give
W»y to the public; aad ther(:fore*lL trespass to
Erivate men may be punished hy indictment,
ecHuse it is au offence of the public weal : and
tliough every man hatha property in bis goods,
yet he must not use them in detriment of the
common wealth. A man may give his gr.iss or
corn away in the field, or when it it in his barn;
but if he will cut it unusually, or burn or de-
stroy his corn, or if he throw bis goods into the
sea, that ibey may perish, these ate crimes pu-
nishable by tiie common law : to is transporting
of goods, commodities, against tho public good :
therefore ihe directions of the statutes, far the
restraint hereof, are from the common law.
And the rcusoii of this ii, because the public
projierty must take place : and if in petty busi-
ness it may be, then much more in time of pub-
lic, and great necessity aud danger. And it ij
tatlier an averment of the subjects property,
that in case ofnecesiiity only they may be taken
away, than contrary to It. — My brother Hut-
ton and my brother Crooke agree, that all are
bound ill case of necessity tipoittrt u et tva, to
defend the kingdom; and may not the king
command a part, with more raason than all?
In the next place, I shiiil remove a scandal
that hath been put upan tbe king, how tbu his
1637._m the Cote cf Ship-Money. [1232
majesty hath meant to make a private per-
sonal projit o{ it. — What lie hath done is well
knonn ; and I dare conlidendy say, all hath
been spent, nithoui any accouui to liiioself, sod
tb.-vi his majesty hatb been at great char^ be-
sides towards the same : and.l beard it fiom
his own royal moufh, he spake it lo me, uul
my lord firampaion can testify as much, that
he said, it never entered into hi^ thoughts to
make such u^e of it; and iherefore' said, be
was bound in conscience to convert it to
the use it was received for,' and none otber;
and that he would sooner ent tbe money, than
convert it Lo his use. Therefore, he that thinks
the king made a revenue of it, dolh highly slan-
der his majesty. But let kings be as D*vid
after God's own heart, yet tliey iiiU
a .Shin
:a rail oi
But though (blessed be God) bis mDJesty ii
so gracious and loving to liis subjects, and n
just, that we need not fear he will chargse then
but upon urgent necessity ; yet we kauw not
what succeeding ages will do. — It is not well to
blast succeeding ages; and if they should beic-
aAer chaise unreasonably without cttDSe, yet
this judgment warrants nosuch thing. Ag;aia,
it is no ai^ument to condemn the tnie use of a
tiling, because it may be abused. Aod again,
the law reposes as great trust in the king as
this. The king may pardon all offences; but if
be should, then none should be safe. The ting
may make peace and war at his pleasure: bot
yet should he make peace, when peace would
ruin us ; or war, when war would uada us ; it
would be worse than this. Therefore it cbodcc
be suspected, that the king will do any thing
Dgsinst law and the public good of tlie kia{-
dom : therefore the law says, tbe king can do do
wrong ; fur he is tpontut regni, as in Magdaieo
College case.
Then they object Clark's, aod the cliambei-
lain of Londbn's cose. These cases are Dollung
against this, but rather fu; it. — The reconl oi
1* Ric. 2, rot. 60, B. R. Lever's case, in »n so-
tion of trespass, for taking away bis goods,
without his consent, had judgment to racover
in Durham. — But tbe case was this : one LeveT
of Durham brought his action agaii
for entering into bis house, and taking away his
goods and 00/. in monev ; tbe def- ' - "^ '
ed Not Guilty, and the jury upqji i
; tbe defendant pfead-
verdict Ibuud that tbe defendant took away his
money, but upon this occasiuu : the Scots lud
invaded the realm, and were in Durham, tnd
could not be gone without a certain snm of
money: whereupon the in habit ants assembled,
end amongst tbe rest, the plaintiff was one;
and they made an order to abide tbe ordinance
of the greater part, which was to give the Scots
the money desired ; and because tbe money
was to be paid presently, ready down, then-
fore tbey made auotber order, to search in all
men's houses, and take away what money they
filund ; uid according to which tbe defeadaut
.searched tbe plaintiff's bouse, and took away
60l. and because it wai without consent tbe
plaintiffhad judgmrat in Daihtmi butupw
, Cioo^^lc
1335] STATETKIAL?, 13 Ciiakles I. 16'6T .~ia ilie Cox ^ Ship-Man^. [1231
ful usr theteuf. But we caoDot ^aspect tbfil
tliere irill be lach obuae. * Ubi conttdit Dein «C
* leu, ct noi etiam confidnniu.' God nnii ihe
law hatli trusted Iiis niajcitj, and we sliould nut
distrust him. In time a( imuiiuciit dnnger,
Ifmpiire belli, an; tiling, :iud bj any innn mny
bt done, murder cai'iiiit be puiii^lied : yel, aayi
jny brollipr Crooke, the king cniinoi iIihi^ hi»
subjects in nnv case Hitliuut parliament ; no,
nol nhen tlie Lin^doin is nttiiiitly invaded bj
(he eiiciny. Bat trnlj I think, iia lie was iba
<ir:t, SI lie ivill be the last a( that opinion, eg-
tecialty btvin!; delivered bii opinion, tliat the
iii|> is Siilc judge iif the doiieer before, n» in-
deed lie is; and that the king is Kote judge of
the da'![;ir, nol any have dcniud it, and there-
fort else it slicjilJd he no danirer, but « ben everif
one S'lull s^iv, jriu shall judge that ibe kingdtnn
is in ilniiger
(M.) llicre liatb been, and may be, as great
danger whrn tlie enemy it nnt discerned, ui
when in anus and on thi- laud. In the lime of
war nhun tile course of law is acupped, when
judges hate ni powrr orplnce,wheii [he courts
of justice can send out no process, in this casfl
the king may charge his subjects, you pmnt.
Mark what you ^rant; when (here ia such a
confuunn as no law, then (he king may do it.
' Dato uno absurdo, infiniia sequuniur. Then
there may be a time of war in one part of the
kingitom, and tiic courts of justice may sii ; at
in 14 Hen. 3, Kich. It, and flea T's time, win
were in some parts of the land, yet the judgei
sat in Westminster- H nil,
(1.) Now, whether a danger be to all tho
hingduis, nr to > piirt, tliry are alike perilous,
and all ought to be cbarKud. iS.) Ihe king
may charge the sul^ccis lur the defence of the
land, tiort the laoH nnd ihi' sta make but ona
iiitire kinifdom, and there i^ but one lord of
both, and the king ii. bound to defend both.
(3.) EipeCtaocy of danger, I hold, is sufficient
ground lor the king to cliBrge his tuhiects ; for
if we Slay till the danger comes, it will be then
C<>a lute, it may be. And (4.) ilis a»enoen»
of the danger is not tTaien,nhle, it must be
'Lindingwhen he perceives and says there is a
dant^er; as in 1588, the enemy had beeti upon
us,iVit had nol been foreseen, and provided for,
before it came.
But I Bill not determine the danger now.
Do tiot we see our potent neighbours, nnd onr
great enemies heretofore, were they not pre-
pared tbr war ; and was there not anuthrr navy
floated upon the ^ca? and was not the dominion
of the sea threatened ta be tnken away i As
long as this danger remains. I shaU bless God
for such a kiAg os will pr6vide for the defence
of the kingdom timely, and rejoice to see such
a navy as other nations nitt'it veil In ; and we
are not in case of safety without it, and shnuld
lose our glory besides.
The next objection of my brother Crooke
was, that there is a mcnns prosided by inirKa-
ment, which will nol willi-iiold aid fiir the de-
fence of the kingdom, and it were n sin to deny
it in case of necessity. And in Ed. I'l time,
4k
the special verdict it was reversed in the
Kitig*S' Bench, because it was with his conseni.
Indeed the reasons were, 1st, because he had
suHicienC remedy a|;:<insC the cominrmalty uf
Durham,.and 3dly, because he diil it as a scr-
' But I answer, 1st, Thouoli the ordinance
was good by consent, yet it folluwed n it that it
was void njlhiiut consent; the ijuestion it there
only, whether giwd by consent. Sdly, It fol-
lows not but tMc all men williout conienl are
bound to contribute towards n general charge
for necessary defence.
Another objection made by ray brother
Crooke was S Uic. 9, para 1, wlu^'re all the
lords and sa^es met togellicr nlWr parliament,
and it nos agreed by iliem, that they could not
charge the comrams without parliament ; that
this was a decluralinn of ihc law in parliament.
nnd almost eijuivalpnt to an act of pariiamenl.
I answer, (1.^ that this «as bo act, but a decla-
ratioo in parliament of Ihe law, and indeed no
declaration, bnt a relation by the chancellor.
(1) If it had been a di?claration, jet it hod not
heeo bindii^ without the king. (3.) It Ls nu
precedent of a good look, it was when the king
was young, and the pinliament had the regen-
cy : counsellors, ti-easureis, nnd ell his iitG-
cer3 about hi* person, were chosen hv the par-
iiament; and therefore, no wonder i/ they en-
deavoured to please the parliament. (4.1 It is
a precedent that they, i. e. the lords, could not
charge the commons by themselves, — Again,
(he case was not for the defence of the realm,
but fur wars in France, Scotland, and Irelaod ;
these were the many wars. Though subjects
may be charged for necessary defence of the
kingdom, yet if fbreijjn wars be together with
them, it is otherwise. And therefore in the
parliament before, they said such charge belong
not to tliem; and liSercftre they huld, they
ought not to hear it ; and so that rule of Gas-
coigne; 2* lien, i, fol. 4. Tt.at no man shall
be charged wiihuut pariiatncnt,nhere bulwarks
were built, &c. it proiei not, though it impli'.'s,
that if it had concerned the kingdom, it bad
been otherwise.
3. The neit general objection was the great
inconveniency Unt would hereupon ensue ; if
luch a charge might be, tlieti none knows what
bis charge will be, for the king may rontmand
it as often as he pteosci, an example hereof
they put in Danegelt, that in eleven years they
grew from twelve to foriy-e^ht thousand puundt;
therefore the law hntb provided Dgniiiit that
uncertainty, aiid limited it to n parliament.
I answer to this, (1.) That ifdanger increase,
so must the charge; a g» in, the king may com-
mand all persons when there is neccssitv, and
Ds often as he pleases he may do it. Is not
this as great an inconvcnicncy as in this case,
and yet that abates not the writ ? My brother
Crooke shewed how subsidies incre-ised, and
wt no inconveniency in that he conceived; nnd
mdeed this shews the pfovbioo of charge must
be according to tho danger. Besides, no abuse
of any thing must tuke away tha tciie aad Uw-
TOL. HI.
1235] STATETRIALS, 13 Co. I. iS5T.— The Kins againtl John Hair^den,uq. t^^*
Secondlj, antjent aids are ibera meired, ai
redeemim ihu king't bodj^ ' ^ur faire Gacke-
' vnlier, etpur muier sun Gle eigne :' aod so all
other ancient aids, ithich are lu be undetftood
wilh an ' ad rediaienduui corpus, &c.'
Aud to the (tatJle De Tallagio non Cod-
cedendo, in >nine Iiooks it is Dtit in print, but
inentioncu in Mag" Cbar' Rabtal, and chc Peti-
tiiiii of Hi^t 3 C<^- lf>3^ to be in 31 or 85
F^w. 1. And tliererore I answer. It is not in
tlie parJiuncDt-roU, aud there is variance about
it; and llierefore it ii but an abstract, and ao
substantial statute. — But ^uce it hath passed
for a statute, and possibljr taaj be one, I a^ree
»iih all the rest of mj brothers, that it is a sw-
lute : Aod theu I answer, (1.) That ' nullum
' tahagium impimetur, &c.' that is, no unlawful
laillage sball be imposed upon the subject with-
out big consent ; orelse the aids ' pitf faire Cli
' cbevalier et pur file niarier,' Itad not been ei-
cepted. (3.) No aids shall be imposed but bj
contribution ot' the king aud people; and here
tba king is taied as vieU as thej. (3.) Aa act
of parlianuinl can by no means take it awaj,
raurh le*s bj tlrose general words.
Obj.— In 14£d. 3,c4ip. 1. No man fFon
henceforih sball be cfaa^eable, but hy cammoi)
consent in parliatnent.
To tills I answer, That though it be bnl
Ed. 3's time, and iBd. S's.a i
be lietd every year for the del
doui, ' et propler ardua regni.
I aiiBH'er, Uiat might well be, but clien, in the
time of Ed. 1, Ed. U. Ed. 3, there were pleas m
parlismeiit, but those ace now bid aside; and
that the subjecis ought to i^ive the king subsi-
dies ; I will not say that, inferring they will not
do it, nor am 1 apt to believe it; but I hold
pariiaments are the excellent means to raise aid
Air the defence of the kin^ooi, aud yet they
are not the only means, tor then tlie pariia-
ment, and not tlie king, should be tlie only
judgi^, and have the defence of the r^alm ; or
else it should give ibe king a charge of defence,
without poweror meant. — The objection of the
Ling's revenues, tenures and prerogative, they
have been unfitly remembered, and thej have
been fully answered.
The statute of tonnage aud poundage given
to the king, for and lowurdi the ilefence of tbe
sea, and the oilier acts of parliament, that re-
strain the king's power, so that be csnnot now
char[;e the sonject without his coasent in par-
liament, I shall answer in tlie next place; and
before I come to the particular acts, I will
shew what in my opinion, they may do,
1. A<^tsof parliament may takei.wBy dowers
and ornaments of the ciowa, but not the
itself ( lliey cannot bar a succession, uc
ihey be atniinted by them, nod acts that bnr
them of possession are void. 2. No ac
liament can bar a king of bit regality,
no linds should hold of him ; or bnr him of
the allegiance of his subjects; or the relativr
on his part, as trust and po\ver to defend hi
people: tlterefore acts of parliamciii to taki
away his royal power in the defence of hi
kingdom, are voiil (a^ oiy Lord Chief Bnrno
said;) they are void acts of parliament, to bind
iJie king not to cumiuand tbe subjects, their
persons and goods, and I say tlieir money too -.
lot DO acts of parliament make any difference.
Now to the particular statute objected.
(1.) ab Ed. 1, Chap. i. CunGrinatio Char-
tanim, tbe words are these, ' aids or tnies,
' granted to the king, iliall not be taken for a
'custom or precedent:' aud cap. C. ' More-
' over, we have granted for ut and our heirs,
' that for no busmesa from henceforth, we shall
* take such manner of aids, taxes, nor prizes,
' due and accuctoiued.' And cap. T, a release
of toll upon every sock of wool; ' And grant,
' that we will not take such things without their
n assent and jrood liking, saving lo ui
r heirs, the customs granted by tbe
ns aforesaid.'
As to the other statute, De Tnllagio nnu
Concedendo, cap. 1. ' Nullum taliagium im-
* pouetur niii per commune concilium regni
* nositi.' cap. a, 3, 4, 5, &c.--Fir»t, Tliese
nordi must have relation to the aids before,
and there be divers aids ; as some by tail-
lage, some by way of priie upon goods, and
ransom of his majesty's pei^on, iic. the king
(hereupon makes this grant, which hath rel^
Mod to such aids as were granted voluntarily.
temporary in some parts, yet it is bindii^ obIt
Kcuiidum tulyetlaia maltruoH : And tbe wonb
are general, ns in the other statute De Tallagiis
&c. besides, the practice in that king's time, and
after, host inmprets it.
Obj.— 2o Ed. 3, cap. S. No finding of men
at arms, unless by consent, much less findiug
Answ. — This lakes not away any fomer
law; and therefore the precedents following, i
Hen. 4, shew that it does not reach to this case.
Obj. — a Hen. 4, m. 3, ohich is absolute io
the point, saiih my brother Crooke, wbere a
commission went forth for the defence of tbe
sea, wtiereof complaint was made in parliament
with desire that it might be repealed, and it
Answ.— I am of the contrary opinim: fiv
the petition was that it might be released; and
tbe answer was but this, that it should, but the
kiug would treat with the council i^iout it;
and it was but a repeal of his commission ihen
only. _
Oln. — 1 Ric.3, cap. 3, where the king grams,
ttiat he would not hereafUr charge diun by
benevolence, or anj such charge, but (hat tbn
should he dampned hy the Uw, by no stA
charge or imposition, i, (. by no such charge
of money.
Answ.— That statute was ooW aKainst htat-
vnlences, and made by a king that had r^asoiH
as we all know, to piense the people for bii
Olj. 9. — The stoiate of Tonnage and Ponxt
age, granted for the defence c'
words are, That no laillage o
without act of parliament. 3. That ibe km(
hath means to defeml the kingdom, >iili a
1 s^ be
J237] STATE TIUALS, iSCaARLEsI. ]6S7.—inthe CaseofSJiip-MoMji. [123S
protestation not lo draw it into eianule, 4 Hen.
•4, 13 Hen. 4, ParL roll, ro. 10.
Aiisw. I will nol srgue whether Tannags
and Poundage wai before Lhts act of pBrliamei
nor tbac time out of mind they were griinted
the Lin^: But my vis^'er is, They are only i
the urdiiiarv defence of tlie sea. And ihe pro-
tejlalion of 4 Hen, 4, is a prulestation of the
common) only : and this rharge is not taken
away thereby, and Tonnage and Poundage is
fur and tciwiuds the defence of the sea-. »
the aiti are, and 50 I agree. But for e
ordiaanes, and but solely ia case of danger of
the whole Lingdom, that they should not be
granted cannot be collected out of these grnnts.
Tbe Inst Objection is tile Petition of Right
3 Car, That no charge shaJl be imposed upon
tbe subject, but Ly parliament.
Ansi*.— I was ihtn Speaker of the lower
house, and I have reason to recaember wliat
then was made. And X any, 1, There is no
mention of this case. S. lliere was no new
jn, Dot to bind the king from his ancient
rights. 3. Look upon tbe prayer, what b de-
sired ; and tbe main scope was, (1.) Genernlly
Dgainit loans, and (his .could not be mcluded in
these words. (3.) Imprisonment without shew-
ing coase. (3,) Billeting of soldiers. And (4.)
mariners lying within ilie land.
IV. I have now dune with my third general
head, I coDie to the last, touching the form and
legality of the writ.
First, For the legality of the writ, and the
objections timcbing tbe necessity, I have an-
.swered before; the main objection is to (he
body of the writ.
Ii is said, [l.] Tbe command lo chai^ tbe
sheriff 10 levy and assess monej according to
his discretion, is not legal ^ for that the she-
lls' should mnte it per ucramentam, by tbe
oulhiofa jury, a* in the writs of partition, dis-
CribotioD pro rate, &c. This assessment is not
warranted by the precedents, (say uiy Lord
Chief Baron and my brother Croute) they do
it not upon their knowledge but presumption
of mens estates; and from thence they speak
against tbe too vast power given to the sheriff,
to enhance it as he pleases, [a.] The incou-
Tcnience is great hereby ; for by this means
tbere is a great inequnlity in the assessment.
I answer, firsi, to the assessment per lacra-
mtntum. No reasun why it should be here;
for it is not done in the commissions to levy
subsidies, much less should it be done here for
a matter of great haste: And besides, the sherifF
is trusted with more ; far be haih the trust of
the whiilc county, and lakes an onth lo execute
his office justly, whereof tbJs is one part. — As
to what they say. tknt there is no precedent for
it. (1,) I say. That there is no precedent that
it bath been done by jury, but always by tlie
Bhcrifi*, or such whom the king was pleased id
trust; and since one must be trusted, none
more lit ifaua he. (2.) By example, we see,
ke speeds all, uid i* mo» Kad; for it. (9.) I
say, the writ leads not tbe assessment. It com-
mands the ship to be provided; so if that be
done, there is no neceasiiy uf nsiesstnent : and
if tbe towns and counties say tbej will provide
s ship, and do it, then no assessment is re-
'juisi'e; but if they do it not, then the sherifF is
to levy it, that the defence may be seasonable :
so ili:il the clause of the assessment shews tbe
manner of it. When a tuultitnde is to join,
none more fit than be to do it ; attd no way
better, than to write to him to do it according
to mens abilities. (4.) The dause of the
assessment is. not only to tbe sheriff, but to Che
bead officer of ttie town and borough ; and
ibaLi|h the discretion of the cinuse he to the
sheriff, yet it appears not, that it is limited to
And whereas it was sai"!. That tbe sheriff can-
not assess himself, anil the pn-codenis warrant
not this assessment by the sheriff: I answer,
all the precedents are not against it, bnt com-
ia<mly it is not so ; and yet there bare been a
muliiiude of precedents thus. As to the in-
equality of it, Mr. Hampden had the least cause
of Bov man in England to complain, qpnsidertng
how lit was mted.
Again, all that the writ cornmands, it but en
assessment ' juita facultatei tuns, iCa quod
' omnei, &c.' and if tbe sheriff do otherwise,
and wrong the subje<ns, he is answerable. By
divers antient precedents it appears, where tbe
sheri£ bave been faulty this way, lliey faaye
been nunished ; and sir Waller Norton's case,
nnw depending in the Star-Chantber, cancemi
this, for an abuse in levying this charge, when
high sheriff of Lincolnshire.
Truly, I think, as my lord chief baron SBi<l,
if there had not been an inequnlitj by the abuse
of the assesses, the charge bad not been com-
ined of; yet the like incqualiiirs is in subsi-
dies : And this is n* just cause of exception
ist it, but of accusation aguinst tbe sheriff
is to answer it. And I can say truly, his
majesty hath been very careful to pre»ent and
remedy the abuses therein, and bach often sat
daily in the Council-Chamber lo give his advica
herein himself; and upon his command refoiw
nation hith been in divers parts ; and it hath
been given in command to ail his judge* in
ibeir lircuits/lo endeavour the same in all
rts ; And I myself, by ibis command, have
:tified rates tn this kind, that have been un-
equal. And 1 doubt not, if die necessity of
danger sbatl still require it, or again, bercuter
it may be done with all equity.
Tbe second objection is, That the sheriff
cannot tni himself, for then be should be judgA
and party inoiiecase; norctin btf commithim-
self: and if he be omitted out oflbe assessment,
tben it cannot be equal, nor cannot be accord-
> the writ, (hat commands all sliould be
ieil according to their abilities ratcably,
iwer. This prinia facie carries some shew
it; but examine canses of less conie-
:e, and it is easily answered. Thejiistices
of peace, in levying subudies, m»ke rafcs for
themielvct. Tbe commiHioiicn of lenen In
1239] STATETRIALS, \3Cil.I..}(i'■i^■~'^le^^'"gasailulJuhaUall^da^,aJ. [VM
tb«ir own Uniia ; and so it' b_v jiir<>r3 it were
done, it wuuld be ike IiIlg. There must be
either new msessors uppuintcd, or ilic> thcni-
■elveE must <ii> il: Tiintnrauld bring delay, and
this requires biiste and eiLpedition ; >nd ihere-
fore Ibe aliCritl'is liitea f»r tbis business. Au-
iboriiiei iu law there Hi's dii'ers herein, as tbe
writs tur the ler;rin|S«>'PCiicc» for knif-hts of the
shire, diicction is tn (he sheriif li] du it, wlio
in n writ of recovery ' de bonis hiibitantiuni,'
the sherill' ii chargc.ible iritb his part; yet lie
is to execute it. If ii line he hiid upoa the
nkoJe county, he levies it, yet is churgcabie
with his pnrt towards ir.
Obj. — The urit i& directed ' probis lininini-
' bus,' aod these cannot be charged in an in-
land couniy.
AusVT, — What diScrencc there i> ' inter pro-
' bos homines,* betneeo inlaud counties nud
maritime counties, I know not. 24 Ed. 3, a
-writ whereby tliey were charged iu case of
necessity; as to Yarmouth it was 'probis liouii-
* nibus, &c.' True, a grant by the king ' pro-
' bis hiiminibus' generntly is void. 1 Ucii. '6,
Dyer Phil & Mar. 7 Edw. 4. 14. Butaoom-
misiiuu or vrrii lo assess tbeui good enough.
' i'robi boroines,' that ihcy know not, nor see
not, it is nut uiaieiiid, for that would make
them sole Juili;es of the i<aii)^er, vthcn as tlie
Lioe only ia, and litis not truveneable oeiiber.
Olj,— Tho writ commands an iidaud county
to Anil asbip and mariners, wbich is intEossi-
bte; and ' Itx non cogit ud iuipussihilla ; and
till' this iny brother Crookc puts the common
cases, that « ^eoerul return, 49 Ed, 3, 6, and
impossihilities are vuid ; a covenant for impossi-
ble things is void, but a bond may be good.
I answer now to the point ofimpoasihilily.
And pusiibly the st.ip inuy he built in an inland
county, (hough to carry it to Portsmonth Is im-
possible; but it is possible (o provide a shiu
and matintra, as the writ commands, wbich
miiy very well be done with money.
Obj. — But we have none but trained snldiirs,
no mariners ; our country consists in lillnK*i
and our meo are trained up to die plough and
huabnnilry.
I nn.wer, Wc bare the like occasion of
ploughs and husbandry in Kent, and we have
in manv plaias uo maritime towns ; some lie 20
miles from the sea, and yet wc ere justly
ciiOTi^ed to find a khip. PreceileiKs we Iwve us
well as you in 0\on and Bucks, or alse none
thouJd he charged but port towns, nnd in pur-
ticiilar no I:iw ..r itatute to eienipt them. Until
Airred's limp, there was no disiinction of mari-
time or inland couiitio, for thi^u all Englnml
was but one maritime county.
Tlien they objected, the puymenl of soldiers
wages fur 38 weeks, to he in I'hs king's "erviee,
is against many precedents; as ItiEd..!!,10
Edit. 3, and entirely for wa^es lo he (jaid by
the county is aptinst nil tliu prererlcnts : and
tenants by tniKhis strvice aftfr JO days, are to
. "bcpaicihy the tinit. Anilorherprcoedentimv
brother Crouke tiled, whe(i diVL-r» nfuted lo
',(1 out of their own comity till paid, wi (tnltr
nkeu for their pay by the king. And w^reu
the county had given bond for payment of mI-
dieti wa^cs, (hey were rnuccll«], and onitr
mode ill parliament, that soldiers should best
ihe king's pay, 2 Edw. i\ 10. 18 Edw. 3,
cap. 7.
'1 bese are easily answernl, for these prece-
dents pro(e no more [ban payment of hbicsA
fario, unci so ihe king may pay it where it ii
not due; and fut tlieir refusal, I have aotUnf
to do wjth that now : but 10 Edw. 3, m. t,
ihcteis mention made of Berkshire men, com-
manded to carry iheir soldiers forth of tbdr
couniy nt their own costs ; and when the tol-
diets refitsf] to go thence, no charge or pij-
mcnt; for soldiers used to be paid by ihar
county, as in ihnt case; and tliey were I'urcd |
to i;(i,'aiid ilid go, nnd stay there tbieejcan:
so ]3£dw. 3, m. i).
Obi.— 1 Cd. 3, m. II. None compellcii
unties : .And not only tliose tliat had oEco
■A patents to serve the ki.;<!, but all nilli thn
', that the Ling should pay them ibeir
Answ.— -1 Ed. -3. It is clear, andhndiinit
the exccpiian in c^ise of necessity, and to U
done ns in times past.
IQ Ed. 8. It i^ uiptessed in theacl.nki
they go IU (he king's wars oi.t of the kiaiilooi ■
so 19 Hen. 7, &c. These are all but dediin-
tive to the common law, Corbet's ci»e ; the
reason is, because the allegiance of (be subjai
i^ not natural, but local. But (hat the tint
sliail give wages within his kingdom, tliereuim
net of parliament for it. Now it »as rtwlifi
in ibe Excheqoer, iliat ihe sea and bud mode
but one entire kingdom, and so no going oot
of the kinadom here; and conwquentlv ilw
payment of (he solilicrs wages witiiin the til?-
diiro is not u2«inst l.iw.
The Inst ohjeclion is, (.hat the writ is 21^
hecause contrary lo Mag' Cliar', ' ndlniliw
Answ.— As touching the objection of rhtm-
bility, tijjl they are privilegt-d from impri*"-
meiit, it mi^ibt well have bcfn spared ; Si"* I
knmv nm wherefore il was spokeu of, uulni"
make ihcm think they were more ininvsiM
thnn the ri-sl of his majesty's subject* in il>*
Obj,— Hat yet, 1 say, noblemen may |" if"
iriEijui^d iijion c.mtrmpt, as my hrolhirCroote
mous »etl ; nnd it nns revoked in the earl si
Liiicohi'scasc, in the Star-Cbamhtr. It is ■«'-
luit I'pon ordiiiny process, tbcy are Ml f "
jrou.;ht lo trial Or imprisoned.
Non- 1 BHruei, ihcre is uo impri-onmrni u .
picstioi.,l)Uttbea'.5c6smcn!onK,whylie*bniikl ,
i.ii pay the aMi\ey assessed, or tbew cam*"
hccunirarj. , . <
Secondly, ^Verp t'.e wilt illrgal (ur fonii bm
rirrumatauce, ytt this makes not the coidp<w ,
[self il1ei(!.l for siiLftance.
The ciceptiuBi to tlic Certiorari are ih"*;
Hi\] STATE TRIAI^, 13 ChaiilesI..](i^7.— uitk Cast <^ Ship-Money. [Uit
1. TbediMCtioD orit 10 ti>otheriSf,oneout
afliii office, when u the therlffia being uuglil
oulj to nturii ii,
'- ^ — OrthistbcreiilitlledouljC; nothing
frequent
e Chance
than for a CrrI
n to IB
of tlieChnncerj to
cuton, or the judge thnt tuuk ihe fine, and a
ivmnved. And 90 ujiod coiDmiuion to take a
fine hj ' dediiuus pocestatem / in thii cbm the
writ is ' inter breria irretoranbil' i' ond (Lis
nuiM rciniiu with tlie old thcriff, nnd are never
delivered over by ibe jury to the new sheriff.
In Ilobart's case, in the King'ii-Beiich, hctn^
cuntictcd of heresy before sir Juliu* Cseiat
judge of iNd Admiralty, ccrtificnte to liini after
Master of tlie llnlls, and directed to him : so in
the case of my lord Pnget.
Obj.~-TI;e writ ii without return, saith my
Lord Chief Bamn ; and the Certiorari, nhich
ik a year and a half after, cauDot renew it.
I Dnsner, That slinll not be tite determining
of it only ; for the time limited cipiring, shull
not deprive uiieof hiajust debt.
It is not sufficient, because it appears not,
that Mr, Hanipden was tenatit or tcr-ieaant,
or that Stuke Matidevillc is nithio the county
of BucLs.
2. It appears not that tbeie vrai any ammu-
nition or i'liip prepared.
I onMver, It diitli sufficiently appear, tliat
Mr. Uainpden was ter-lenBtit,furlheCeitioniri
was CO I he iberiff, ubo certifies that he not te-
nant ; for it was in pursuance of iht writ ; llic
words nre, ' Viriulu brevis domini regis huic
' scbedul' aonexat. certifico quod viriute eC te-
' cundum eiigeniiam ipsius, Mc' ' Aisessavi^'
Anglicb ' hnve assessed,' ' super sepamles botii-
* nes et Utrx teocntes com Bucks ptid' quo-
* rum nomiiia subscribuntnr. &c.* Itielntiato
the pUce there, tenants in [he county of Bucks,
and mukes Mr. Ilumpden one. And thus the
baiincss uf kiii^^htbood was duie, nud in no
Then it appears nnt that the ship was pre-
pared. To this I uasiver, 1st, That tlie sliip
was done nccording to the command of the
writ. Silly. It was prepared. 3rtly, If none
hnd been prepared, the fault was in them, for
that they paid not in their money. For the ex-
ceptions to thi) Mittimus I say outhing, be-
cause I told you the case tests not upon these
words, ' Salus reeni perichtabatur,' which is
only to bring it 10 wsue.
Then they except against the Sci' Fa', lit,
Tliat the king is not intitlcd (o bring the Sci'
Fa'. So there is no eui oiirrrtur, to whom he
sliould pay the money, for whose good or bene-
fit Mr. llnmpdcn should tatisfy the money as-
ie«sed. I ans-er, the king is interested in all
octioiii for public g^wil, nnd thell recnvcr ac-
rorrtingly. a^ in case of Hi^iiways, Pontage,
MurB(;e,&c. muchmore nheii it lb for the ge-
nernl drfence of the realm. In a giiare imprdil
between two common persons; thoiigli ibe
Liiii be neither plaintifT nor defendant, the king
•hall recover therein. Many times in cnieof a
conuiuiD infonncr, the kin( recovers the one
moiety, though no parly ; lo it was in the cu*
of knighihood, tliough suit was depending.
Again, all writs in the kiugdoiu are ibe king's
write, though no line, uiuih niorc beie for tha
dtfencc of the realm. And it ia usual fur ilia
king's attorney to compel meu to perform cha-
ritable uses ; and the kii^ may question any
one for them, in the case ol Auruui Ile^nx, bj
process oui of the Exchequer.
Again, where it is said, ' Qunre ipse de prxd'
' summa specilicat' onerari et inde satistiic' de-
' beat, pruut utierius tibi prieccpt', &c. for
tb'iugh the writ Le in the king's ni^nle, yet it it
but lurthe performance ol the uoik and charge;
and though it appears not, who were collectoti
or assessors, yet it appears it was done. Upon
public service, proees.i goes forth in tlie king'*
name ; but then it is nut so fit it should be ex-
pressed in particular fur the king, when it is for
the general good only. . Was not this olijoctlon
made by tny brother Denham ? though none
more chearfully did gubscribe to liis majesty'*
letter, neither was the Sci' Fa' w iihout hi? (Id-
vice, being the aptest course, and better tliati
trespass : but llie objection that be made was,
Tliat the king camiot do any wrong, nor take
without record, as in seizure upr^n outlawry,
attainder, or the like ; and in this cose tlicre
is no Kccord upon the writ 4 Aug. no judg-
ment, &c.
I answer, This Sci' Fac* is not annexed to
the writ, and is a new action, that Mr. Hamp-
den onereftir tl inde tatit/aciel, and after that
judgment upon tlie writ, and upon lib saying
niithiiig, why reiwctttfr, there shall be a good
Hccord whereupon he shall be charged. 3
Eliz. Dyer 1^6, JgaoriiBitii is sufficient title
for the king, and gruund for a ' Melius inqui-
' rendum.'
No Sci' Fa' lies apon the tenor of a writ, saT
they ; 39 Hen. 6, fol. 34, 91 Etii. Djcr (bl.
905. I answer, a Sci' Fa' upon a recognizance
will not lie in Chanceryibut upon the lUcord
there ; yet in debate, an action of debt lie*
upon the tenor of the Record. 39 Hen. 6, the
doubt was bec^iuse the party might be sulyect
to a double execution, one upon the Ittcord
there, nnd the other upon the tenor of the Re-
cord in another court, 33 Edw. 3. Title Te-
nure by Transcripl 8 Hen. 5, Fitz-IIer* Error
Sci' Fa' Reg' fol. 51. Tlie Record was before
thejubticet of the King't-BeDch, the tenure was
of tlie Treasury to the barans of the £ich6-
quer ; and it is the usual order, if a recognizance
be forfeited, to certify the tenor of a recogni-
zance ; so of n fine of amerciament, dc. to cer-
tify the transcript thereof. So tlie transcript
was sent from Ireland of an act of parliament ;
n Sci' Fa' thereupon i\^nt agaiiitta baron in
England ; so in debt, upon tlie trinscripi nf a
be fruitless, anil none tliould take benefit there-
by ; upon this Record be put. several cases,
wherein judgment in such a case vught to pan.
lUi} CTATETRIALS, 13Ch. I. lii3T^neKingagaiiMJolMHai9<li»,aq.[m
I answer my Lord Chief Baron nlth a judg-
ment or his uwn, in case of kuighihood, resolved
herein this court; llie case was this, The king
by writ Jan. 1, of tiis reign, commanded the
Ellens' of Bertsliire, th»t all that had 40f. should
beio the Chancery 31: Jiinunrr rotlowing, to
take upon theoi tlie order of kni^ithood. Sir
John Dayi«l, atierilT of Berksliire, m.-kde his re-
turn, ^as the slieriff of Bucks iiere) all that are
not knights uuder thenameof Illorum, and sets
donn their names. A Mittimus thereupon
went out of the Chancery, reciting the sub-
stance nf the fomier writ, ' Vobis Minimus
' jpnescntibus, &c.' with a clause to euquire
after such as nere not returned, and t(i fine
them. .And upon thli a writ of distringas to
tlte dieriff. My Lord Chief Baron and my
brother Oenham know what judgroeTit was
given ; when I observed, 1st, Not the Record,
but the tenor of the Record, was sent into the
Eicbcquer, jet returnable in tlje Chancery.
Sdlji, For the reiuniine of the names of the
deloulten as here. Sdly, Upon the dislriagat
thereupon was had ext^cutioii, much more than
here, upon the Sci' Fa". 4thlj-, There was no
more judgment of Record to warrant than here
in this.
Now I come to conclude. I have been some-
what too bold, in taking more time tlian is usual,
but I did it to lalisfy iny own heart, according
to which I must give my judgment. What I
have omitted I reler to the rest of my brntbcrs
that went before me, and to my lord chief
justice that comes after me. The reasons 1
shewed whereupon I conceive by the common
]bW, and the fundamental policy of the king-
dom, that the king may charge his subjects for
the defence of the kingdom, and ihut tiie king
may charge his subjecis towards t)ie defence
thereof when it la in danger; and I hold that
this writ of Sci' Fa', and all the proceedings in
this case, are well groumled Hccording to law.
IiTy Opinion therefore is, That Mr. Ilampden
shalt be charged witli SOs. assessed, and that
my Lord Chief Baron ought to giie Judgment
accordingly.
The Akgiimevt of Sir JOHN BRAHPSTON,
knt. Lord Chief Justice of his Majesty's
Court of King 's-Bencb, in the great Cose
of Shu^Mokiy.
Quarto Aug. 11 Car. u writ issued out of
the Chancery, being directed tn all counties of
the realm of England, both inland and raari-
time; and among tlie rest it was directed to
the sheriff nf Bucks, tor the making and build-
ing of a ship of 450 tons, and to provide a cer-
tain number of men with ummunitlwi and vic-
tuals, to be brought to Portsmouth, and from
. thence to be einpToyed in his majesty's service,
for defence of the realm, and of the sea. Mr.
Hampden, In the county of Bucks, wtis assessed
•t 30t. for bis manor of Stoke Mundeville, who
refused to |iajr (he (aniej whereapon a Cer-
I tiorari iaiued to the sheriff of Bucks, ID retm
the defaulters; amonj^ whom Mr. Harapda
' was returned to make default of paintrni of
the QOr. assessed upon him. Whereupan it m
by Miltimus sent intu the Evheqacr, ud i
Sci' Fa' thereupon issued out of the Eich«|oti
against Mr. Hampden, lo shew came vhy
he made default of payment of the iiid Hx.
Whereupon Mr. ilainpJen appeared in fata,
and demanded oyer of the writs, andrctunu
thureof^ and demurred in law, with Trbnm ilr,
Attorney joined in demurrsr.
Now three points have been debated iktid;
at laije in this matter, viz. 1. ^V^Klh(^ ikt
king may command this general chai^eofliii
subjects by law, or no, without their comoi
in parliament ? 2. Whether this kind ofutu-
roent be warrantable by law, or no ? and, >.
Whether the Sci' Fa' did well issue or dm? Ii
all these mailers, so much hath been ilnatj
spoken, that if I should not sny whit bath bo
already spoken, I should say little to fufui.
I will not belong; for if 1 luut intcndeilit,iiij
lord Finch hath prevented me in It; li>t»
hath taken from me very much that 1 iboiU
have said, n^d insisted upon.
That which this case restelfa upoo, in in
opinion, the vote of the court hath pasMd i
ready bv the greater number of voices, to
mine will do iioiliing which way ve\f Ip'-
yet being to deliver my opinion, I shall iWf
iny reasons; and that I sliall do nithout anj
otlier defence. Concerning the first fie*.
Whether bis majesty may impose ibat ewnd
charge upon his sulijecta by law or nofl i>
of opinion, that whensoever the whole kinri"
is in danger, his majesty may command ill !»
suljects to join with him in ihis case bribt
defence of the kingdom. My brother Fina
hath insisted so fully upon this matcer, iku 1
shall need to say but little : but yet somethi"!
I must say, as well a&my brothers tbal ban
spoken before me, to discharge my consciflicc^
and far that which 1 shall say, m; intenl '»»
Insist upon some few of the prioctpal ilatuio,
which have been already recited.
For this point, in my opinion, will mt »f<«
the several statutes and acls of parlianwatl'*
concern this case; and I take these slatuKs"
be merely declarations in affirmance of a*
common law. And I .hall begin with lbe»-
tute J Edw. 3, cap. 5, and I shall notjo »'
from the intent of the statute; I shall >t«i"
make use of any precedents, thou^ man; taft
been used, but only so far as they mays**"'"
cjpound and declare tlic true meaning of A«
statutes.
And whereas it is objected from the iW't
1 Edw. 3, niat no man shall be cooipdleJ »
go out of his county wherein he hieili,nc^
in case of invasion, sad nocewity requJretli,"*
then it shaU be done ns in umts P'^'' 1
answer. That this is merely declnmtire, a"
spoken in affirmance nf the common lav, >*°
this use is declared by tliis statute to U !*<
antieiit law of the reahn. Now what (tat «
w»s, will be a very greu queitiao io i** '**
r45] STATE TRIALS, BCbaklesI.
deed it hath been niiicb insisted upnn, both
' nir. HampdcD's counspl and my hiMber
rooLe, that (he subjects going forih of the
irt shaJi be at the king's chacfe, which thev
kvesifliriDed by divers scatuces; tut thut which
ill go fur in this case, as my broiher Rerklej
eil observed, is outof the precedents of Ed. 1,
(f. S, and II. Sill's times; and in them yoa
lalt find it to be for foreign wars, or else for or-
innry defence, xs for pillaging of borouchs or
rivate luwnj by piraius, when the subjecia
ave not given tneir aids in such cnses. And
lere is no dnubt but the king hath paid the
Itarge io such a case, for tlie defence of ihe
:alni ; but the subjects gave the king subsi-
odoit
vithal.
But the question is. What the subject in
Obc, * secundum l^em Anglis,' mny be (
lelled to, in case of necessity, fur Qefence of
he kingdom i I answer, They may be com-
icIIed tu tliit charge, * sumptibus pmpriis,' for
he soldiers wages; but to go out of the realm,
>r their shire, must be at the king*s pHy, ac-
;ording to the common law of Enotnnd ; but in
imes of sudden defence, there is 110 time to
itand upon wages. It appears both in Filz-
Herb. Na. Br. fai. 98, and also in nty lord
Coke in Calvin's case, the king may command
!ii> subjects upon tbeir allegiance, to go tvith
him, as well :n vyan without the realm, as in
his wars wiihiii, and with him, and without
him, in the king's service. By the statute of
18 Ed. 3, and 11 Ed, 3, men of arms, as bob-
bellers, archers, &c. are to go in the king's ser-
lice, as in England, so out nf England, was the
matter of these laws. And my lord Finch said.
This was the ver^ common law of England ; so
that it is clear, these two statutes are declara-
I nfHnnanceof the c<
T lien.*, title Tenure 44, tli - -, -
man is not to go with the king in his wars, out
of (be realm, without wa^es. And so 7 Uea. 4,
title Tenure 73, the subjects of England are
not to ^o with the king beyond the seas, with-
out their wages : but in llie realm they are at
his command, and tliere is no wages to he
^vea. So it is in going out of England, when
they are at the king's charges; but within, at
tbeirown. And if the going out of the county
be at their own charges, I know not but that
ehnuld put nn end to the case, that the defeuce
of the realm must be at the subjects' charge.
It is of dangerous cimsequeiice forjudges, in
their judjmenLB, to rely loo much upon prece-
dents, that perliaps went forth through toe ne-
cessity of the present times. But that is not
our Case here; we are here directed to know
what was used in times past, in this case, be-
fore the makiDHof this statute; So that in this
case we late the asnge not to declare or prove
a law, but that use is declared hy this stn
to be a law. Now therefore, we must k
what the ase was : now that the use was, that
thesubjecisof this realm ought to be charged
in time of commoti danger, appears by a multi-
tude of precedents applied rightly to tbest*tut(
of £dw. 3, which do declare the law upon the
1637.— wi lh< Coat qf Ship-Money. [1246
te. And to shew what the use was, 1.
shall rely chiefly upon those precedents that are
most judicial. First, ttiHi ol 25 Ediv. ], Term'
Mich' Rot. 7a, Banc' Regis, in the abbot of
Robertsbridge's case ; compare ihnt and this to-
gether, and 1 know not what more can be an-
ered, than that this use for the subject to
aintain tbeir peace, was an usage, law, and
custom of. the realm. 10 Ed. 3, m. a, fo. 18,
the king by his vrrit sent a command to send
to Portsmouth one hundred foot and twenty
horsemen to guard the sea. coasts. They refiis-
ed to do that service, and would not go without
wages. The king sent answer in these very
words, ' That no wages were due, for it was a
' public danger.' And so SS Ed. 3, cap. 8, it
is generally assented to hy pariiameot.
But there we have a general law in tiie first
statute 1 Ed. 3, which was grounded merely ou
the common law, and so was the statute Ij
£d. 3, and the rest to the same purpose, because
it was against the right of the realm. And
this statute of 95 Ed«. 3, was merely groundet!
upon tlia petition of the comBnons ; then cer-
tainly this finding of arms was intended by tliat
statute to he against the right of the, realm. Be-
sides all this, to keep ourselves to that which is
legal and authentica], 10 the purliament roll 13
Ed. 3, m. 9, and 1 1 , it is there apparent, that it
is not against the right of the land to charge the
subject ; thtn how comes it to be against the
right of the realm 35 Edw. 3, for then there was '
Now to bring it downto our times. In36Ed.
3, m. 44, every maritime town was charged to
keep a petty wntch, there being sume immineut
danger ; therefore they pray, not tn be dis-
charged, but that it might be reduced to a
lesser charge, being it was but petty watch to
guard the sea-coast ; much less then is there
cause for the subject to seek to be discharged
when the enemy is approaching. 5 Ed. 9, there
was a commission issued out, 10 distrain eveiy
one ' secundum polestatem,' in matters of ar-
ray; here is now the judgment of the whole
house uf parhament, Uiat men according to
their abilities are to be charged tn join in charge
with the king, to defend the realm ' sumptibui
' propriis.' Thus much fof defence upon the
land; now fur defence upon the sea. In the
smtuie 18 Ed. 3, cap. 7, that they who serve
tbekingout uf the kingdom, serve (or wages;
but in case of necessity, without the realm, ia
times past, bjt no prece'lents, saith mv brother
Crooke, can it be proved it was done before,— .
I answer, tdat the sea is wilhih the kinidom;
see 2 Ed. 3, cap. 10, protect. 46, Bnicl' lib. 2,
fbl. 3C5, there the sea ismadepart of thekioH*
dom. Doctor and Student, cap. 51. It is the
ancient custom of England, that the kiug it
tord of the narrow seas. But that wliich I
most rely upon is, from the statutes of 1 and IS
Ed, 3, f<ir they both meet in one, which is ac-
cording to the common law ; for all the diffeib
ence thereof is, the subject to k" o"^ of his owd
county whether to defend ihe land or Uie sea.
In the Statute of 1 Ed. 3, it is objected, that
1247] STATE TRIALS, 13 Ch. I. 1M7..
' there is no precedent for iolanJ countiei. But
I tniwer, itaot trom inland couulie*. ,Tet there
'a fur maritime, Bi iu 14 Ed. 3, Term. Mich.
But I n\y not upon [irecedents for citEier, Luc
onljr upon those prrcedeiitj that went uut to
the parts and maritime towns i (nr it whs lyell
observed liy the Ling's counsel, tltat they were
not grouutted upon an; precedent! or rbartera,
but only upon ancient cnstams. Dut if the
precedeuU to <he maricime touns were direct-
ed in case of ni-ce^^itj, ilien I aM no reosan but
that it may be dnne now; nhich was in-
deed inteoded by Che icaiufe of 1 Ed. 3, as the
precedents do pUiiiil/ tleclaie ; and tlieywere
then more common than writs of this nature is-
suing for in this ca«e, and chi
then bonnd to land'Service, and the
towa-service; and Ihey were oimpelled loitat
tbeii- own charge, merely upon their aUejiance,
bntit in Dedfuid, Bucks, Lincoln, wicli tuany
ocher cauQties. If then tlity may be compelled
10 go out of their own proper counties, ti de-
fend [bat pai't of the realm that llicy live near
unto, why m»j cliey not alsii Be cumpellcd to
go to defend the sea-coast i The sea-men were
willing to bear tome part of the charge for Che
defence uf the sea, because the inland coun-
lies did bear their charge uf the land-service
and of the ports ; .^nd if they may be compelled
iu the iniund ountics to defend ifatir inland
counties, and [he sea-men to defend the sea-
coast; then I know no reason buc that they
■nay be compelled all in general Co bear a pub~
lie charge in case of necessity.
I am:.tillupon tlie statute lEd.3,wliereiD I
find Mr. Selden, in his Muie Clauiumj says it
was an ancient use tii charge the inland andninri-
time counties jn case of neceasilv; and there-
fore in my underitandiug, I bold it to be ' se-
' cundum legem Anglix.' But here my bro-
ther Crooke objects, there ia no sCututc or pre-
cedent to shew tbat any inland counties were
chained. I answer, that statutes and prece-
dents do not exieud to our case, for this was
in use many years before the making of auy
stntuie. See the statutes of 1 Ed. 1, and 1 Ed.
3. Tliey canunt cross one another, fur then
could not the statute of Ed. 1, be conErmed by
lite stntuie of Ed. 3.
j^goin, concerning the statute of finding of
men and arms, it is true, it is merely the common
law of England, and that merely without com-
mon consent in parli.'unent, as my brother Berk-
ley idth, that the statute of 9 Hen. 3, and 35
Ed. 3, cap, II, are the great charters rather
than statutes ; and in king John's time it was
not token for a statute, hut only for a declara-
tion. And so it was taken in the time of
Hen. 4.
Bui now if concerning the charging of the
county, the said statutes were nothing; but ac-
coniing to the common law of Eoglanrt, I
cnnnot see how tlicy should cross, another now ;
for there is no difference, but only Jn such
things as are given as a benevolence to ilie
king, as in 1 Ed. 3, cap. 5. fi.
As Jbr the statute Dc TalUgio oon Conce-
-ne King againjt Joint JLtmpJai,aq. [12tS
dende, we deaj it not ; but the dilfeitBce k
in the occiisiuo of the statute of USA.S.
Titers was a pretty case put by !Ur. Uolbonw
aliuul the office of alnajie, where thcrr 'is bot
a fee to be paiil out of it, and heltl a Culli;e:
but there is great difference beineen the taii-
■^e and (his service, which Rvcry snlj»l
bound to do by his allegiance to his Mmit
lord, Fm" Her', Na. Br. 103. The lin[ i»t
impose tliis charge upon the subject in nv a
necessity, pra tijfiu publico; and it is noituif
wealth in a lime of cummnn ilangei. .W
after Lin; Edward the Confessor, it ra or
deied by several scatules, let every oik br
their own j^oods and lands free from taill>p,
and let nothing be taken from tliero. But io
this case of necessity in conimoo daoj
imn Cher thing, l he king may then oicnprl La
subjects to this charge; and I m!iy idd ttc
reasons stronjily insisted upon by Cte tin;'f
counsel. My lord Coke said, it cuuld ntro
be the meaning of the great cliartcr of iIk li-
berty of the subjects by this statute louli
awny the power of -the king's pren^aiivf, »J
so to exempt themselves froin ihis chM^ti^
defence : fur there is a difference bet«en a
taillage upon the people, and a lenin ut
case of necessity, which they may b» tom-
pelied unto. My brother Jones ated ansst
excellent case 4 Jac. upon tlie npinioa oF C:^
and P>>pliam, that the taillage-ilatute uldb
not awav: and shall it takt'''airay this i^
power at the kine, so inherent in the crc"*
the proiectiou aodpreservntioo ofbis kingioof
From this slaiule 1 Ed. 3, Mr. St. JiA"
raised this objection. Here is seven monia
from the date of the writ, to the time ibe tlw
was fo be broneht to Portsmouih, in ntua
time there might have been a pailismenf, iw
tlierpfore it ought to have been done ia ■ psi"
linmentary way. But this will not ndmit ll»
calling ofa jmrliament; but if the dar^i*
not sudden, you mutt have it iu a pariiaoBi-
tary way. — My lord Uncb gave a lull iH!*''*
to iliis ; there must be a preparation before m
enemy come, else the defence is too l«e ; ib«
is a necessity to prevent n neeiasicv, anil "1"
shall give warning in such a c.-ise but the tln;^
Saith Littleton, who gives warning? Not IM
tenant by castle-guar{ but tlie lord; and »
coniequeiitlv in ibis case our sovereign lort "«
king : and therefure in such a case the mi^"'-
is bound by his allegiance to the Ling, to >^
in cose of public danger. My lord C«ie leSl
us the reason of the warning ; he laidi, ilifj
must in that case be a prepa.-atlon before IumI,
lest your defence come loo late : euroiitsj"'
more easily kept oat than overcome wbeo i"J
are gnt in.-By the statute of B Ed. 4, A^™
bulwarks mav be roide in another '»«>* |
grouud; but ibis preparation caonoth* "i*
out warning, and none can give the waffS
but the king, and the subjects are to be «t his
command, and none other; for there WD* M
a preparation of the subjects in the r^J°
meet the enemy before he eol«r the BM. '^°
I«49] STATETllIALS, ISChaKlmI. i Oil.— mike Caiei^Ship-Monef. [12W
Hib)«cts con tate upon them to build bulvnrk*.
Ice. It is an assuming of ihe rojal poner, for
I must Le doue 'juxta jineceptum doiuini
reniB.*
Now I come to ihe escoml part, whether
:his atsessm«Dt he warranted by law or not.
The writ was dated 4 Ai^. to prepare a ship
tgainsc the Isiof March. Therefore tie ste
C is nut agoiiist the great tawi concerninu (lie
tulijects liberty, beciiu»e it is no taiilage biu a
KTvice: Ibr bowEoever it must be Ernnted, it
"Dust be a general danger lliat causeth u gene-
-al defence; aod there must be matter iti the
»odjr of the record ti> saiisfj therein ; there
nnst be, I £ii, u pubhc danger, and then it is
secundum legeui el consuetudiiiem regiii An-
' glin,' as appenis 20 Ed. 3, m. 91. And also
n Doctor and Student, cited before, that when
iecessiij doth require, the kiofj may cumpel
uB subjects fi this public seriice and charge.
riiaugh the king be the sole judge, arid his cer-
Jficn'le is not traversable and cannot be de-
fied, yet there must fae'matler appiient within
liur record to satisfy the coriscience of the
lOiut, or else we cannot be judges of the case
at aU. If the danger be general, then the de-
FcncB inujt be general; but if ordinary danger
as robbing of laercbants by pirate*, Ike. it must
be at the ting's charge. And we di> see by (he
petitions of the commonsin many parliaments,
that tbey iierer conceiTed tbemielrcs subject to
ibe chaise of ordinaij defence. — Now upoa all
that which hath been obserred by ray bro-
thers, there is enough in the record to Miisfy
them folly (as if the king were not' sole jiuttie)
that it «4s a public danger, being * pro deleii-
' sioae regni et tuitione maris, Sic' It did
isiue lo all the kint^'s subjects, as a general
chan;e, and not to the coutiiy of Bucks nlone :
therefore I may conclude, when tbe wboU
kingdom is in danger, tbe kingjuay compel hil
Rubjrcts 10 assist in such public danger.
Then for tbe assessment; many esceptions
hare been taken to it, and to the record and
Sci' Fa'; I had provided myicirio ha»e given
ft full answer thereunto, but mv lord Finch bath
))refented me, and hath cited the very nulho-
ritits, tliat I myseli'did reiy upon. But for the
assesment itself to the sberitf, I do not say
that I do find he hatb like power in any other
ease of law : coramisaions of sewers may be
directed to tbe tberiff, but not to give power
to assets men's goodi. I nuswer, that tbi-i is
in case of necessity! forthe very main case is
but a case of neccsity, tbe orrfioary and u<ual
way is ' per sncmmenlum.' My lord Finch
gareanexcellcntanswertothat, and warranted
It by law, .that the sherilf bath no tucli unli-
mited power' gnui ted him; he is not mode
judge of the estates of men, hut only to pursue
tbe direction of the writ, to assess tbem as Ite
ii commanded, and not ' seci'niium discrttio-
' lieui suain ;■ but as my lord Coke 5 Rtp. 99,
laith, be mutt ilu it ' secundum legem et le-
' cundum nrhitrium;' tb:it is to say, according
to law and reason. But it is impo«sible, in
•uch a case ot'i»E«uitj, to put it into lucli au
VOL. III.
o make it witliotil eiceptiun ; but in
pro port ion ably, his power is unlimited ; for by,
and wrong, between lulistance uiid shallow;
and he uiUit go within the bounds of law anil
right. In the chamherlnin of London's case,
they uiigbt rate and asiess in bono publico, aa
ill making a high-way to a church, und tbe like,
•iheretii the subject Is brought (n no disirets
or inconrenieiice, so ns iho eireater part, in
such a case as this, shall ever bind the lesser,
it being ;ira bmopuUko. Y«t this ussessnienc
cannot make a Ihw a debt or a duty, but ii
only a means to bring this duty lo a ceitainlVi
and so make it a duty, so that he he raied in
an equ^i proportion. Hath the sheriff raied
Mr. Uompden disproportionably, acci»diog'to
bis ettute and degree i If he hath, let him telt.
Tf the sheriff hath followed his own will, and
done corruptlv, ilieii he Iiath done contninr to
the intent of the itril; it turoelh upon ihs
■lieriff birnielf: and a great offence it is for a
public minister of justice to abuse liimself in
such a place of justice, Tbe sheriff returns,
be hath assessed 30(. which is no great sum ;
and also confrsseth upon tlie record, that it it
an equal assessment. VVben Mr. Hampden
appeared upon the Sci' Fa' be tlemnnded Oyer
of the writs, and so demuned ID law: nliich
upon the matter, being a general demurrer, i«
a confensiuD. — And as fur the Sci' Fa', my lord
Finch hath handled it fully, and hath citu tbe
tame books and authorities 'that I intended ta
have cited ; and lo hatb prevented me in that.
And also in Bodmin's case in Cooiwall, and
upon the exception lu^ier tenmtra record' in 9
Hen. 6, fot. 33. And tbe reason why he
shotiiit not have oxeculian luper teuorem record"
I, because orhervrise the subject might be
charged double. And' diiert coses were put
upon suing forth eiecalion upon the tenor of
the record ; uid yet no execution can ^ out
of the chancery at the first, because it is not
returnable by the sheriff, but it is sent out of
the chancery, by M\itimus into the Exchequer,
S4 Hen. 0, 4 llcti. 0. But it is true, it doth
em every one to be sntisfied in the truth
of the case; for if the sheriff sliould not assesa
sacramentutii,' it might be made nnoiher
w'oy. — And as for tbe Certiorari, my lord Finch
haih likewise cited the same books and autho-
rities, nbicb I also intended; therefore I for-
bear tsiDsistupon that.
Tliere is another exception to the record,
quod onereior,' and not know to whom it
ibnulitbe, no money demanded to the king by
he first writ, no, nor by the second writ ;
therefore can give no judgment ' quod sntisfa-
:cfet domino regi :' then if judgment shall not
be H'veii for the king, tlieii for nhimi f noscoo-
ital, it doth not appear to whom it is due, foe
any thing I can see in this record. — I'nily far -
my own part, ofell tbe exce|>tions that I liave
heard, none siicketh with me hut this excep-
tion : for I do not knot* any precedent, that A
judgment was given, and not smy Co whom.
4(.
It51] CTATETUIAtS, IS Ch. I. }6i7^ner»gagabalMmmi^a,aq. |
TliU scruple, I cooftn, ttill renittineth wilhoie. I
I Diiut needs !>y, thu in m; oproinn, 1 do !
rather incline, u far a« 1 am h rit iatisAefl, that
tii'a is R. guod nceplioD, iccordiiiE bkiI upon i
' tluxe rensons which mjr Lord Chief Baron ^re;
and ya I am not ao far saliiilied, ihat it is lair.
•^1 must ratlier incline as a>y opiutun incline,
than go against [lie inclination of mj ona opi-
nioo : as I liuve gone through dI) tlic rest with
tbewirrantof iDv onn conscience, 1 cnnnocKO
upon any stiing m a ihiug of the least iveighl,
but 1 must deliver mt opinion ai it jncliiict;
and ibereforc, upon ibose reasons that I liav«
bear^ and upon consideration taken wiib aj-
•elf, I do nther incline lo the opinion of my
Lord Chief Baron, and apoti hi* reatoni,
vhich I think naa in that with the lesser num-
J«cr : buc for aiy opinion in all other points, I
agree with the general vote of the court.
Upon the 19th of June, 14 Car. Mr. Attor-
nej moTed ihe Court of Eicbeqaer for Judg-
ment against Mr. Hampden ; and afcer he had
opened the Record lie said, " Your lordship
and the court, in respect of the greatness of
the cause, did adjourn it into the Exchequer
Chamber, that yonr lordship and the court
mi^t receive ndvice of all the Judges; whose
Advice and Opinions your lordship lath already
received, and the plurality of their voices is,
that Jiidgment should be given against Mr.
Hampden, and acco;tlingly I do praj Judg-
To which my Lord Chief Baron nnitrered :
" It is very frue, it was referred from hence to
the Exchequer-Chamber, to receive the aihice
of all the judges ofthe land. We do not take
them to assist only by way uF advice, but for a
judicial directioD : for admitting we four were
of one opininn, and the rest of the judges of
another, (though the cause properly depend in
this coutt) ytt we must apply ourselves to their
resolution, and our four voices are involved in
theirt ; and therefore accordingly, tccvttdum
legem, &c oiterelnr JuhanDei Hampden."
The Copy of the Obdex, sa it was drawn upon
the Motion of Mr. Attorney-General, and
non remains entered in the Exchequer.
Termin' Ste' Trin' anno
Renwm' Regis, 14 Car. 13 die Junii.
Sucks- — Wherena several sums of money bj
virtue nfthe king's mnjcaty'a writ under the
Great Seal of England, bearing dale the 4th
ilay of August in the lltb year of his majesty's
T^f.ti, were assessed and charged upon several
persona, fur and towards the proviaion of a
Ship of War, together with tlie furniture and
Olher thinet thereunto belonging, in the laid
writ particularly mentioned; which said several
Bums of Money, so asacascii aiid charged, and
out being sBiislied and paid, the mimes of the
•aid iieverid persouh, together with the several
•ume clinrged upon them, nerc relun;ed into
tini ChaiiciTv, whereby hia majesty's writ of
Ccninrari, bearing date the Sili ds; of Mnicli,
Id the Ifth year of his majesty's rdpi, cei6-
Bed into his court of Chancery, and 1^ LiiBk'
jeaty's wm of Mittimus, under the suae Ms^
bearing dale tb* 5th diy of May in ibe MA
yew of his majcsly's reign, wen MM into lie
coun of Exchequer for further proocsa to bi
bad tbetenpon, as by the said KTeral nia
may appear: and whereas procns of So' Ft'
was, ilie 30th day of May, in tbe said IStfa ^
of his majaty'i reign, awarded lo the liai <i
(he county of Bucks, dircfrting la ganiili lb .
several persons, in a sd>eda)e to the said S^ I
tV annexed contained, to shew cause ibe ae-
tavea of the Holy Trinity then cnsunig, ai^
they ibould not be charged, and lalo^ ik
Mid sum* of money awfwH upon then ; a
«\ach Bcfaedule it was coDlainMi, anu^st di-
ver* other*, that John Hampden, eq. aaiu- :
seised at 30i. as by the said Sci' Fa' and kIk-
dulea thereunto annexed may abo dor falj
appear : whereupon the mid John Uimfitt,
esq. being garnished by sir Anthony CbcMi,
barouel, then sheriff of the nid coviity rf
Bocks, appeared, and demanded Oyer a^
the aforesaid writs; which being read ula
him, he tbereupon demurred in lav. Ari
thereupon sir John Banks, knight, bismsjeWr^
ntlomey-genHal, joined in the nH doMtnti
and the record thereof being made >p, ^
pleased the barons of this conn (the laaa
matter being a matter of great conse^aeaw
and weight] to adjourn the arguinf of ik
same matter into the ExchequeT>Chaaiber,tsd
to desire tb* assistance and judgment of lU lie
judge* of England, touching tM smiie. N>*
upon the motion of his majruy's altOTBif
genera] this day, informing this cddtI, iht
seeing ihe said matter halh been so soionalj
debated and argued, as well by llie coiuii(li>[
the said defendant, and by some of tiia laa-
jesly'a learned counsel, and nlsa by all laa
Jud|<es of England, and by the bsronsof lb
ExclieqafT, and thai the major part «' 'I*
said judges and barons have delivered tkfit
opinions and judgments that the imI Ji**
Hampden ought lo be charged with, and U
SBtisry the &id sum of SOt. and tberefort <^
said Mr. Attorney moved ihe court, itat ^aif
ment might be entered accordingly : itilli*'^
upon ordered by ihiacourl, ihatjudpof"™
be forthwith entered, that the sforeaaii) J»"
Hampden ought [□ be charged with, too ^
tisfy the aforefaid sum of 30f.
A Copy of the Ji;nr.iitBr (in Englith), »*.^*
entered upou record, m puisoaDce of »
said motiou, and occordiug to the i»9*'
And because the batcns here nW "^T^
themtelve* of and upon the pre»Diie»,h«»'
they give Judgment ihereopon, a (hiv iip"*
lo tlie aforessid John Hampden, io tV »««
state a* now here upon the Bclave of St. ^i*
ael, that the said barons in the mean *<"'' "
LS5S} STATE TRIALS 15 Chauis I. lCS7.-*i iHe Cok (fShip-Mon^. ■ [13*4
be tBid pretnifes may xlfbe, and with ttip
asticea ofboth benches maj tbereupgn deli-
terat* : for tba Mud -baroDB here, not yet
ibereapoiti&c. Audupon this it i» agreod he-
:ween (he Barom here, as well with cunsent
)ftb« said attornej-^eneral of our said lord
(he khw. M of the taid atiumey of tlie arora-
■aid J. Uampden, and the oouusel learned In
the law of the said J. Hampden, that uiise
persons Uarned in tbe law as well of ooaiwA,
and on the behalf of our laid lord the Line,
ta of counsel and od the beWf of the said
J. Hampden, of the aforesaid matter ia law
■nd the otlier premises, ia the Charnbei of
this Exchequer, cooiinonly called tba Exche-
quer-ChAmber, before tbe said baroM, to-
nlber sitting with ilie afaresakl jntuces of
both bencbo, should in Uie mean time he
l>card pabliolr to argue: at which Mid oc-
Ut« «f St. Mictwel, came tin aforesaid J.
Hampden here as before. And because the
biroiu here. further will advise tliemialies of
«jid upon ibe preniies, before the^give Jud^
•nent thereupon, a daj is further giten lo the
afbiesaid J. Hampden in the same state as now
iMTe, uniil the octave of St. Hilar;, that tome
peisoDS learned in the law, at w^l of counsel
Bod on the behalf of oar said loid the klnf, as
of counsel and on tba behalf of the said J.
Hampden, of the aforesaid matter in law, and
the other premisas, in tbe Chamber of this
JSicbcffuer, commonly called the Exckequcr-
£bamber, before ihe said barons togctlier sit-
ting with tlie aforesaid justices of both benches,
abould in the mean time be henrd publicly to
Mr|ue, and tbe said barons with the said justices
ddiberate thereupon ; so that no person learned
Sn the lair, ather of the conniel of oar said
lord tbe king, or of the counsel of the said J.
liampdcn, is yat heard, and ibe haruni here
Aereupon are not advised, &c. And afterwards
ia the time between the aforesaid octave of
St. Michael, aod the aforesaid octaie of St,
Hilary, as well tba Attorney and Solicitor of
aur snid lord the king, as two learned in the
law of the counsel of the aforesaid J. Hnnpden
in tbe premises, being dq the pnrt of the said
J. Hampden, twelve several days in the afore-
aairi Exchequer-Chamber, before the baroos of
this Exchequer, sitting with ihem then there the
aioi«)aid justice* «f both benches, wereopenl^
and singly heard to ar;ue at large, and parti-
oukrij of tbe said nratter in Uw, and otbei
tbe premisei (the aforesaid record bang rs-
ciled) snd (that thereupon they conld or would
tay. And the aforesaid attorney, end loli-
eitor-genera!, . divers and tery many racords,
writt, conimissioas and precedents, a* well of
this Excbeqner, as of the court of Chancery,
^le cotirt of Kiof^'s-bench and Common Pleas,
ihe matter in law, and other premises in the
- aeveral writs, returns, and schedules aforesaid
«onuiaed, on the part of our said lord the
king, to prove, coniinn and msiiitun, then and
there produced, shewed and expoaiidcd. And
on the aforesaid octa«e of St. kilury, (he laid
i, Htaipdeii CBMe ben at btforc ; aat
the bnrons hqre forther will advise themselyea
of and upon the premises before Ih^ give
judgment thereupon, a day is further given to
the aforesaid J. Hampden, in the same staM
as oow here, until from the day of Esster, on
fifteen days, that the said barons ib tbe mean
while, niih the aforesaid justices of boib
beaches, may further thereupon deliberate, for
that the said barons have uot yet thereupoa,
fcc. At which day, the said J. Hampden came
lucre as before; and because the biiroQi here
fiirtber will advise themselves of and upon tlis
p/eroiiM, before they give' judgment there*
u^o, a day is further gnta to the aforesaid
J. Uampden, in the ssnTK state as tuiw lieie,
tmtil'iipon the morrow of the Holy Trinity, that
the laid barons in the mean while, with the
aforeMid justicsi of both beaches, may farther
tbereupon deliberate, for that the said barons
have not yet thereupon, &c. At which day
the aforesaid J. Hampden came hero as be-
fore ; and upon this, the premises being leen,
and by the baroos here plainly onderstood, and
mature deliberation thereupon being had will)
tbe aforesaid justices of both benches, and
after the argoments, as well by the said joeticee,
as by the alhresaid barons sin^y, in the afote-
iiid ExcbcqaeT-Chamber, publicly thereupon
made, it appeareth thereupon to the 'barons,
by advice ol the justices aforesaid, that tbe
sweriil writ* aforesaid, and their returns, and
tbe schedules aforesaid to the same aiinexeid,
and the matter therein contained, are auflrqient
in the law to chuee the aforesaid J. Unmpden
with the aforesaid lOt. assessed upon bim nx
the form and lor the cause aforesaid : it is
therefore agreed by the said barans, tii»t tlia
aforesaid J. Hamp«feii be charged with the said
20s. and thereof make satiifaatiqn, &c."
Tais Jud^ont in the Case of Ship-Mqwy
gave much olTeocB to the nation, and occa-
sioned great heart-burnings in the bouse of
- ~ '".WIS particularly taken BOtioS
• " And liere I cannot but again take tba
liberty to say, tliat the circumstances, and pro-
ceedings in those new extraordinary cases,
stratagems, and impositions, were very nnpo-
hiic, and even destructive to the services in-
tended. And if the business of Ship-Money,
being an imposition by ihc state, under the no-
tion of necessity, upon a pronpect of danger,
•hich private persons could not modestly think
themselves qualified to discern, hod been ma-
naged in the 'same extraordinary way as tbe
Hoyal Loan (which was the imposing the Five
Subsidies after the second pathoineot spoken
of before) was ; men would much easier hnve
aubtnitted to it; as it is notoriously known,
that pressure was born with much more chear-
fulneM before the judgment for the king, than
ever it was after ; men before pleasing them-
selves with doing somewhat for the king's ser-
vice, as a lettiinony of their affection, which
they wet« not bound la do ; n»ny really be-
lievini the MCtssitj, and thanforaihiaking th^
I;335] STATETIUALS, ISCh-I. 1037.— 7VJK/^«5a«uiJo/niH<W'piM,rt9- [1256
of 111 Mr. 1tu//.r'!.Spcecl>luthat house, April
93, 1640. H h ob wu) ns fullons :
blr. Speaker ; I will uie iiD prefiicr, as th«y
dn urlio prepare niuii far tomMliing iii wliicli
the; htve n particular iuierest. i will only
ftapnae wlwt I ranceive fit for the house to
cansider ; ntid ehiill be no more concerned in
Hm: event iban tlicj that shall hear roe. — Two
tliiiitis 1 obstrve iii his iniye^iy's demiuidi,
i'mi, the sitppi;. Secoiidiy, oar speedy dis-
patch EheraoK
Touching the fim : his oiftjesty's occasion!
for muney are but too evident. Tor to sav no-
thing how we arc neglected abroad, nnil dii-
burthen rensoimble ; others observing, that the
wIvAntnge to tlie king was of import ai ice, when
tlie dnma^ to tliem nfis not considerable; and
all asturin^ ihenisetvcs, that when ihey sliontd
be we«ry, or unwilhng to continue llie pn;-
tneht,tliev might resnrctn thelan-tiirietief, >r)d
£nd it. Butnhen they hcird this dciuanded in
a court o( law, as a right, and found it, by
sworn juriges of the law, adjudged lo, upon
MCh grounds and rensons as every stand ei^hy
was nhle to swear wan not law, and so hod lost
the pleasure and delijfht of being kind, and
4util'ul to tlie king; and, iostead of giving,
were requlrol to pay, and by ft logic that left
HO man any thing « hich be iui;{bt call his own,
' ihey no inore looked upon it as the case of one
man, but the case of the kingdom, nor as an
impositiua laid upon them by the king, but by
the judges; which (hey thought liieniselvES
bound in conscience to the public justice not
to submit to. It was an observation long ago
by Thucydides, " Tliat men are tnucli more
passionate fur injosiite, than for violence ; be-
cau>e, says he, the one coming as frum no
equal, seems rapine; nhen theotiierpruceed-
^tug fi'uu) one stronger, is but tlie cHect of ne-
cessity. So, when bhip-.Money was transacted
at the council-board, Uiey louked upon ii as a
work of that power they were all obliged to
trust, and ao effect of that fbresi>iht ihey were
luuurally to rely upon. Immiociit necrssily,
and public safety, wera convincin|; persuasions;
Bud It might not seem of apparent ill conse-
qitence to them, that upon nn cmergeiit occa-
sion the regal power should (ill np an lihtui. or
supply an impotency in the law. But when
tliey saw in a court of taw (that law, thnt |>avc
them title to, and posiessiua of all ttiat ihey
had} reason of state urged as elemenu nf liw,
judges as sharp- Sighted a> si-cretarics of state,
and in the mysteries of state; judgment of law
grounded upon matter of fart, of which there
_ vma neither enquiry, nor proof; and no reason
giren lor (he paynieiic of the SOj. in question.
but whut included tlie estates of alt the stsndeis
by, Iliey had no reason to hope tliat doctrine,
ur the promoters of it, wuuid be contained
within any bounds; and it is no wonder tlist
they who had sii little reason lo be plen'ed with
tlieiruwn cundilioii, weie no less solicitous for,
or npprehentive of, the incoiiveniencies that
■iiijjht attend any altenitiau," Clarendon.
tracted at home ; the callin' of the paiUanenI,
and our sitting here (an elfcct which no light
cause could have in those times produced) is
enough to make aoy reosnonhle man bcbete,
tnat the Exchequer abounds not so much ia
money, as the state does in occasions to use it:
and I'huffe we shall all appear witling to dis-
prove those who have thought ta.di5suNde lot
mojcty frum this way of parhameiits, as un-
certain; and to let him see it is as ready, aod
mure for the advancement of his tSairs, ibu
any new or pretended old way whatever.
For the speedy dispatrh required, which ma
the second tiling, not only his m^esty, but res
ipsa Icguitur ; the occasion seems lo inaportune
no less; necessity ii come upun us like aa
armed man. — Yet ihe use of parhainents bere-
tafore (as appears hy tha writs that t»ll us
hither) was tu advise with his niajesiT, of all
ihinRB concerning the church and commois*
wealthy And it liatli ever been the cuatovi e(
parliaments, by good and wlialesome laws, t*
refresh the cotDuionwenlih in general, jea aad
to descend into remedies of particular griev>
BUces, before any mention made of a anpply.
Lnok back upon tlie best paiUaments, and itdi
you shall lind, that tbe last acts are for the fice
gifts of subsidies on the people's part, and
general pardons on the king's part. Even tbe
wisest kings have tint acquainted tbe poriia-
uiBnls with their designs, and the reasons tfaen-
of: and llien demanded tbe assistance both of
their counsel and purees. But phyaiciaiis^
though they be called of the latest, mast not
stomach it, or talk what they might have beesi,
but t^ply tlieniselves roundly to the cure. Let
us not stand ton nicdy upon circunistanceg^
nor too rigidly po-itpone the matter of supply,
tu thebealin<;ul'ourlighterwonnd9. Lat usda
wliat possibly may be done with reason and
linnesty on our parts, to comply with his ma-
jesty's debirt:s and to prevent the iiamincDt ills
which threaten us.
Bnt consider, Mr. Speaker, that they who
think theiusalves already undone can tierer
apprehend themselves in daugen And tbej
that havo nothing Icit can never give Trvclj.
Nor shall we ever discharge the trust of those
that sent us hither, or make theui believe that
they contribute to iheiru wo defence and safetr,
unless his majesty be pleased, liist to reMore
them to chu property ul their gO'HJS and lawful
hbertiet, whereof tncy eateeni themselTes now
out of possession. One need not tell yon iliat
the properly of goods is the moiherof coaragc^
and the nurse of industry ; makes us valiaat ia
war, and good husbaiidsiii peace. The eiperi-
eoiiv I haie of former parhameuts, and my
presMil observation of the care the couotfy bas
had to chuse persons of wortli aud coorage,
makes me think this bouse like tbe Spartan^
whose forward valour required some soIUt
tnusie tu allay end quiet their spiiits, lov
much mnted with the sound of martial insiru-
ments. It is not the fear of impiisooment, or
if need be, of death itself, tiiat keep* a irae-
heaited Engliikaan frum the car« to kav*
,X;oo;;lc
1257] STATE TRIALS, UCiiAttLwl.
this put or bis inbericance bi cDtiretj to pof-
terity, as be received it from hii anceMon. •
Tliii ibereture let lu first do, and ide more
•{>eedil](, that we ma; come to the uinttcr ol
■upply ; let ua gi»e new force to the uwiiy Iaw»
wtiich faavc been liitlierto raade tor (be mun-
uiaing of our rights and pdvilcjjea, and endea-
Tour to restore this nittioii to its rundamenial
and vital liberties, tbe properly of our goods,
and tlie freedam of our persons: nowaydoubl-
iDj;, but wesliallliud hisiniijeaty as f>racious and
feady.aaiinyof hisrojij progenitors have been,
WgrtiitoHr just desires tbereia. For not only
Ibe people do, think but the niscst do kuow,
that nhzLi we liave nufli-red in this l^tng vacancy
of parliameuti, ne have suffered from bi» miniii-
tert: that tlie penoo of nokingnaseverbelter
' betoied qI' his people, and that no penple were
ever more unsatisfied with the wavs of the livy-
log monies, are two trulbs whidi maj scnre.
one to demonstrate the other: for such'islbeir
Bfcrsion to the present courses, tiiat neither
the admiration they haie of his mujcsty's native
toclinalious to Jusitice and clemency, nor tbe
pretended consent of the judgea, could make
them willingly submit themselves to the late
tax of Ship-money : And such is the natural
love and just esteem of hi* majettv'l goodness,
that no late pressure conld- provoke tnem, nor
any example invite tUm, to disloyalty or dit-
obfdfcnca.
But what i) it then, that hath bred tbit mis-
understanding betwixt the kins and his people?
How is it, that having to good a king we have
■o much to complain of? Why, we are told of
the son of Solomon, that he was a prince of a
tender iKart ; and yet we see, by the advice of
violent counsellors, how roufih an answer ha
gnve to his people. ' Tlisl tiis finger should
' be as heavy ns his father's loins,' was not his
own, but the voice of amne persons about
hint, that wanted the gravity and moderation
requisite for the counsellors of a young king.
llovEUotlo press allegories too f»r; but the
resemblance of Job's story with ours holds so
well, that I cannot but observe it to you. It
{leased Uod to give bis enemy leave to afflict
im more than once or twice, and to take all
he had from him ; and yet he was not prevailed
to rebel so inucb as with his toogue ; though
he had no verj,- good example of one that lay
venr nenr him, and felt not half that which he
suffered. I hope his majesiy will imitate God
in the benigner ports too : and as be was severe
tu Job only while he discoursed with another
concerning him, hut when be vouchsafed to
ipeak bimiclf to biui, began to rebuke those
who had miiitaken sad mis-judged hii case, and
to restore t)ie pntieiit- man to his former pros-
perity j £0 now, that his majesty hsihadiiaitrd
us to his presence, and spoken face to foce with
u«, I doubt not but we shiOl see fairer days, and
be as rich in the possession of our own as ever
J wonder at thosa that seem to doubt the
■uccesi ot' this parliaoieoC. or that the misun-
dentandiug between the kiog and bis people
1637.-~u the Caie nf S^ltSm^. [1253
should last *aj longer, now tbev are so happJl/
met. lli) m^esty'a wants are hot lo great but
that we may find means to supply liim; nor
our desires so uureasonable, ur so incompatible
with govemiueBt, hut Ctiat his majesty may well
salisQ tliem. For our late experience, I nope,
will teach us what rocks to shun and how ne-
cessary the use of incideretion is; Bud foT'his
majesty, he has had experience enough, how
(liat prospers which is gotten witliout the con-
current good-witl of hia people; Never more
money taken from the subjecCi never more
went uno tlie eiche(|uer. If you took upon
what has been paid, it is mure than e>er tlia
people of England were wont to pay in such ■
time ; If we look upon what has been effected
therewith, it shews as if never king liad been
worse supplied. So that we seem tu have iib-
deavonred the Gllinga^eve with water. Wlu^
soever gave advice for these courses, has mada
good the saying of the wise man; ' qui Contiir'
' bat domuin tuam, poaaidehit ventum.' By
new ways they think to accomplish wonders';
hut in truth they grasp the winil, and are at
the same time cruel to us, and to the king torr.
For if the commonwealth flouriili, tlien he that
hath the sovereignty can tiever want, nnr do
amiss; So as be govern not according to the
interest of others, but go the shortest and tbe
lufest ways to bis own, and tbe common good.
The kings of this nation have always govern-
ed by pBrliameots; and if we look upon tha
success of things since pariiaoients were laid
by, it resembles that of the Gtscians,
■ Kx illo Suere et retro sublapMreferri
' Hea Danaum' ■
especially on tbe subject's part. For thuu»U.
the kittg hath gotten hitle, they hate lostalL-^
ButhismajestyshallttMr the truth from us, and
we aball moke appear the errors of those di-
viues, wlio would persuade us, that a moniirch
must be absolute, and that he mar do all thiaga
ad libituni ; receding not only trom their text
(though that be o wandering too) but fronf tbe
way their own profeiaiafa might teach them,
■ Mate super vias antiquas,' and ■ remnve not
' the antifnt bounds and land-marks which our
' fathers have lai.' If to be absolute were ta
be restrained by no laws, then can no kine in
Cliristendombeso; for they all stand obliaed to
the laws Christian, and we ask no morei (or to
this pillar are oor privilt^es fixed, our kings at
their coronation taking a sacred oath itot (u in-
fringa them.
I am ■^try these men take no more care ta
gaio our belief of thines, which they tell us for
our soul's health ; wnita we know them ■»
maniteatly in the wroug, in that which cio-
cerns tbe liberties and privileges of the sub-
jects of England: but they gain prelerment,
and then 'tis no matter, though they neither
belie\'e (hemselvei, nor are believed by otbera.
But since they are so ready to let loose the
conscieoce of their kings, we are the mora '
careful to proride for our protection agu'nst this
pulpit law, by declaring and Teiafotcing tbe mH-
nicipal lani of this ^in^dom-
_, ..Goiwlc
1959] STATE TRIAU5, ISCa.I. im.—TnebugaeabMMMH<a^dtn,aq. [nu
II i* Vfonb obKrriiig, liow new thn opinion
ii, or rntber litis way o( ruling, even among
■benuelvci. Fnr Mr. Hooker, who sure was
no refncturtf man, (ns ihey tetm it) tliiuks that
the firjt government wa» arbicmry, ' litl it wai
* found, tliu to live hj one mnn's will, became
' the cnu»e of aJi men-'s miserj ' (ihwe are bis
words): concluding, thnt tills V)U tlie original
of inventing lang. Andif tte look farther buck,
our hiitoriea will lell u^, that the prelnlei of this
kingdom have otten been tlie mediaion be-
tween the king and his subjects, to present and
to pray redress of their grievances ; and hud re-
ciprocally then as muchluve and rei'eretice from
tiie people.
Bai uicte preachers, more active than their
predrcessora, and wiser than the laws, hnve
Ibund out a better fann of government. The
king must be a more abtnlule mnnarch than
any of hit predecnson j and to tbem he muii
awe it, thnugh in the mean lime Cbej baiaid
the hearts of his people, and involve liim in a
tbotiMnd ditGcuittes ; for suppose this form of
sovenuuent were inconvenient, and yet this is
but a suppotiiion ; (br these 500 years, it hath
not only maiDtained u« in safeiy, but made ui
victorious over other nations : bat, I say, sup-
pose tlie; have another idea of one iant« cuo-
veaienl) we i^l know huw da'ngeroo* inBovationt
•re, tbinigh to ibe better : and what haxard
tboM princes must run, that eoterpnH the
chai^of a long established government. Now,
of all our kings that have gone before, and of
nil that are to succeed in this happy race, why
thoiild so pious and so good a king be exposed
to this trouble and haiani t besides that, kings
10 Tliverted can never do any great -matter
But while these men have thus bent their
wits against the taws of their conntrj, whether
they have neglected their oivn pnitince, and
what tares are grown up in die field which the;
should have tilled, I leave to a secund consider-
ation ; not bat that religion ought to be the fint
thing in our purposes and desires; but that
which is tirw iu dignily, is not always to precede
in order of time, for well-being purports a being.
Atid the first impediment wbich men naturally
eodeavourto remove, is the wont of these things,
without which they cannot subsist. God first
assigned to Adam mamtenance of life, and
gave him a title to tbe rest of the creatores, be-
fore he appointed a law to observe. And let
me tell you, ifour adversaries have any snchde-
tign, as thm is nothing more easy than to hn-
Mse religion on a people deptived of their li>
berties ; so there it nothing more hard than to
49 the same upon freemen.
And therefore, Mr. Speaker, 1 conclude with
tliismotion.thal there may be anorder present-
ly made, that the first thing tlaa house will con-
nder nf, shall be the restoring this nation in ge-
veral lo its fundamental and vital liberties, ute
property of our gouds, and freedom of onr per-
sons; and that then we will farther consider of
the supply desired.~-A»d thus we ^al) dis-
chat^ the trust repoRd jn ni by thoie th«t mde
usbitber: Us mftjesty wiUsee, tbatacMb
mote than oidinary haste tosatisff bisitnno^
and we iball let all those know, that tnl u
husieo the Biatvr of supply, thdt thn viUwb
delay it, as they giie murnipbaa toVM fawr
AFTEKWtRDS tlie Huuse of CoQUDODt tod
the affair directly under conBidemlion, Id c^
iiig ihnse Judges to an account, who hid ^rn
their Upiniuns fur the Ship-Muney ; at iihkt
time Loril Faiklund delivered huniK.If is tit
folloning manner :
Mr. Speaker; The constitution of thiicoo-
inonwealth haih estiiblislicd, or latbtr endo-
voured lo establish to us tbe secDiily ot iM
goods, and tbe sacuricy of those laws iM
would secure us aod our goods, by tppoisdit
for us Judges, so sealed, so sworn, ttut dm
can be no opprceaion, but they of nsctMj
must he accessary I since if they neilberdcH
nor delay us justice, which neitherlaribeiTH
nor little seal they ougbt to do, tbe gieUdliiB-
son in tliis kingdom cannot continue tbe lot
violmce upon the meanest. But (hn mmj
hath been ahnost our ruin ; for it htfh btti
turned, or rather turned itself into i latwj
against us : and those persons who shoald bn
beep as dugs to defend the sfaeep, barebcaa
wolves 10 worry them.
These Judges, to instance not then anl},l>'
Ihdr gmtMt crime, have deUvered ao ofinioi,
and jnlgment in an eatra-iudidal taanav, tka
is, such as came not within theit
they beingjndge*,and neitherpt
politicians. In which when that is » sbwiw
and evident, the law of tbe land ceases; ndrt
general reason and equity, by which tar*'"*'
laws at first were framed, returns lo Bt« ll"*
and government, where tabii popuii ***>■*
not OTijy fuprem, but tola fer ; at which, w
to which fnd, whatsoever sbeuki diipenar ™
the kiag, to make use of any money, di^^
with us to make use of bis, and one idmIwi.
In this judgment they contradicted bodi aajT
and learnt acts aiid dedaratisas of psiis-
ments; and those in this very case, in tin "J
reign : so that for them tbey needed wk«
consulted with no other record, but with ««
memories. 3. They have cootiadictal f!^
rent evidences, by supposing mi^tty and «*
nent dangeti, ia the naost serene, (puel, aad "^
cion days that could posnhly beiinaglnedjSfw
coDiemptible pirates being our most fonrn**
enemies, and thetw beii^ twither prWte "*
Stale, with whom we had not either tl\iacea
amity, orbotb. S. TTteycontfBdictihe'n''^
ment, which required but forty davs itay,"
the writ being in no sach hast*, bat beins **
tent to stay seven time* Om.
It seemed eeneraJly stnmce, that "l^T**
not the law which all men else «»■ '"'?^
selves. Yet though tbm befot the more pM™
wonder, three other particiuart begot tkt"*^
general iad^gMiioa. When ihej W ■'*'*
o tb« kiog, the aole pown
.ole judgment of necessity, and by ihat enmblcd
lim to taL« both from ui, what he nould, wlicn
le would, nnil how he would, tliey yet coiui-
lu'ed to persuade u>, that tbey had left us our
iberties and our properties, ^ud, wlijch I
^DDfetl moved moil, tdal by the trauBformalibn
)F us from ibe state of free subjects (a good
>hrBse under Dr. Heylin's /kvour) unto that of
fillaina, tliej disable us b^ legal and voluntary
lupplies to express our aStctions to his majesty,
ind by that to cherish his to us, that is, by par-
iameuu.
The cause of all the miseries ne have suf-
fered, and I be cause of all the jealousies we
have had, that We should yei suSer, is, That a
moat excellent prince bath been most infinitely
kbuaed by his judges telline him, that. By
policy he might do ohat he pleased.
We must now be forced to think of abolishing
at our grievaoces, and of taking away this judg-
ment and these judges together, and of regulat-
ing tbeir successors by llicii exemplary punish-
HereupoA the Opinioos of the Judges, the
Sliip-Writ», and the Judfrneot ajjainst Mr.
Hampden beinu read openly in the hoi
1961] STATEHUAI^, ISChaklu 1.403.1.— miKe Guei^Si^Moiiiy. [196S
'-and safely of the kingdom in geoeral is con-
' cerned, and the whole kingdom in danger,
■ your majesty may by writ under the great leal i
■ of England, command all the suhject^ of ihia
' your kingdom, at their charge to provide and ,
' furniih such number of Ships, with men,
■ victual, BBd munition, and for such time ai ,'
■ your majesty shall think fit for the deienoe and
■ aafegunrd of the kingdom from such danger .
■ and peril; and that by law yourmajesly may '
■ compel the doing thereof in case of refusal or
' terrMctoriutu. And we are also of opinioo,
' that in such cas« your majesty is the sole
'judge both of the danger, and when and hoi*^
' the same is to be preveulcd and Hvoided :'
In the whole, and in every part of them, ere
against the laws of the re^m, the right of pro-
perty and the liberty nf the subjects, and con-
trary 10 fonner resolutions in parliament, and
to the Petition of Ri|ht.
3. That the Writ tollowii^ in hac vtrba, via,
' Chnrles by the grace of God, king of England,
' Scotland, France and Ireland, defender of ihc
' faith, &c. To our right trusty and well-
' heloTcd counsellor, Thomas lord Coventry,
■ keeper of our great seitl of Englnnd, greeting.
' These are to will and rei|uirc you, ihai Ibr the
' kafeguard of the seas, and defence of the
' realm, you issue forth, or cause to be issued
' Jbrthofourh gh court of chancery iliese ensn-
' iHg writs in the form folloiving, with duplicates
' of them, under our great seal of England, unlo
< the conntlea, cities, towns, and places her*-
' after ensuing, and for so doing this shall be
' your warrant :' And the other Writs com-
monly called the Ship-Writs, are against the
laws uf the realm, the right of property, and
tlie liberty of the subjects, and contrary to
former resobrious in parliamieiit, and to the
Petition of Right.
4. That the Judgment in the Exchequer in
Mr. Hampdrn's case, ■ transcript whereof fol-
toweth in hiee verba : (viz. ' Quod sepnralia
' brevia prtedicta ec retorna eornndera, as
' schedu!. predict, eisdem nnnexat. ac materia
' in eisdem content, sufficien. in lege exist, ad,
' pnef. Joh. Hampden de pradictis viginti aoli-
' dis super ip!um in forma et eit causa pned.
' asse^isis, onenind. Ideo consideratum est per
* eosdem barones, quod prad. Johannes Hanip-
' den de eisdem viBinti sulidis oneretur, el inda
■ satisfaciat.)' in the mnlter and substance
(herrof, and in that it was conceived that Mr.
Hampden was any way chargeable, is against
the laws of (he realm, if.e right of property, the
liberty of tlie subjects, and contrary to former
resolutions in parliament, and to the Petition of
Rijlit.
1. That the charge imposed upon the sub-
jects for (liie providio^ and furnishing of ships,
and the assessmeut fur raising of money for
ibat purpose, commonly culled Ship-Money,
>re against the laws uf the reahn, the subjects
right of property; and contrary to former reso-
lutions in parliament, and tu the Petitiou of
Right.
a. That the extrajudicial Opinions of the
judges, published in the Star-Qliamher, and in-
rolled in ibe Courts at Westminster, in A<ec
TbeCisc.
' C. R. ;— When the good and safety of the
' kingdom in general is concerned, and the
• whfile kingdom in danger, whether may not
* the king by writ under the great seal of Eng-
' land, command all the subjects in this kingdom
' at their change to pmvide and furnish such
■ number of Ships, with men, victual, and muni-
■ tton, and for such a time ns he !>hall ihink fit,
' for the defence and safe-guard of the kiugdum
' from such dangur and peril, and by law com-
' pel the doing thereof^ in case of refiisal or
' refractoriness ; end whether in such case is
• not the king tlie sole judge both of the danger,
* and when and how the same is to be prevented
I and uvoided ? — C. £.'
Their Opinions.
' May it please your must excellent majesty,
' We have according to your majesty's com-
' mind, sercrally, and every man by himself,
' end all of ui together, taken into serious con-
'aideration the case and questions sigueil by
'year iMJeMy, and inclosed in your letter;
*Avi ire ve af opinion, ibu imn the good
These votes were afterwards transmitted bj
the house of commons to the lords, and deliver-
ed by Mr. St, John (afleruards his majesty's
solicitor-general) at a Conference of bulb houses
of parliament, held 16 Car. 1640.
Mr. rSi. John addressed liimself to the bn)|
as follows:
My lords; The knights, citixens, and bniK
1S6S] STATE TRIAI^, 15 Ch.I l03-J.-m^The^KaigagiaiutJabtlIaiiipdeii,aq. [1364
KHMt of ihe cu7<moai iioute iiave CDtrnsteri me
wilb It meuia};c la your lordships of a geneni
and yesy hii^h cuncernment ; to general, that
thewhoiC body of the kiiigdotD, hotli pecri and
people, are interested in it ; of so hi^n n coioe-
^u'eiicr, ai that there is nothing tlmt can coii-
ceni lisneiiFer. — Itisoneof tlie grandiaregni ;
to great, ai llut I shsll not need to present it
la yourlordshipi in a magnifying glau; it will
appear too UIl; in iit own dimension*. It is
not tiiat Sbip-inuuej hatL been levied up«n in;
l>ut it 19 that riglit wberebj Ship-money ii
claimed, nhicli, if it be true, ii such as that
maket the payment of Sbip-mone^ ihe girt anil
■arncBt penny of all we have, it is not that
«ur persuui have be«i impriaoned for paytnent
of Stiip-moDey, but that our povons, and (as it
is contrived) our lives too, are, upon the taxan
(rounds of law, delivered up to We vrtll nod
pleasure. It a that oar birtb-rigbt, our ances-
tral right,' our condition of continuing free sub-
jects, is lost; that of late there harh been an
endeavour to reduce u> tuthe state of villaint^,
1 nay to a lower. It is true, the lord migbt tn»
his riliajn dt haute €l de hatit, might lake all
his lands and goods; llie villiiin had no property
ogaloit ihe lord, the villain he could not ire quo
toluit, he had no .liberty of person, the lord
tnight imprison liini ut bis pleasure: but the
villain's Ule was bis own, and not liis lord's, the
law secured him that. Uut, ray lords, as tlie
Iniv stiiuds now declared, it is disputable whe-
ther it doth so much for us.
My lords, tlie subject of this message, is to
present the sen&e of the cominons to your iord-
•liips;<that the laws of the realm insiiiuted at
iirst, and freely nssented unto, and chosen by
their ancestors for the prrsercation of tbera-
aelves'nnd us their di.-»0L'ndAni9, in our persons,
lives and estate;; have been of late entrusted
DiKO sucb hands, as have endeavoured to force
upon tbem a contrary end to that fur which
they were ordained; frara defensive to turn
theui to offensive; and instead of protecting
us, to make the laws the instrumenc of taking
from us all i>e have. Those carriages which
commanded at this present to declare to your
lordships. Tliey are ceitnin extrui-judicial opi-
nions delivered by the Judges at several times ;
the one in November 1635, tha other a year
atler, in February 163(i. The Ship-Wriis, that
have issued to all the counties of England for
these many years Inst past without intirmis-
•ion ; the principal tiling in these writs which I
Bin to present to your lordihips, is not the
cliarge and burden which hath been thereby
imposed upon the subjects, though that be
great, but tbe devlarations in them of the Inw,
and of thff right wjiereby this burden may be
imposed.— The last is, the Judgment in Master
Hninpden's case in tl;c ticlicquer apon these
Slap-Writs.
Mj lords, tlie two last, tliat is, the Ship-Writ
aad the Judgment, because iliey are very long,
I am only to open lliem witliouc readiog, and
fu deliver thcEB to your lordship; ibaotkti two,
I am la read fbeai, and then la deliter t« jont
lordships.
Tbe firttOriHiOB in November 16U, was
read as follnweth : >
I am of opinion, that as where the benefit
doth more particularly redound to the good of
the ports or maritime parts, as in case of p^
racy Or depredniians upon (he seas, there the
charge hath been, and may be lawfully im-
posed upon them Bcconling to precedtats of
iunoer times; so where the good and aafety
pf the kingdom in general is concerned, aiid
the who!e kingdom in danger, (of wbicli ha
majesty is the only judge) there tbe charge of
ihe defence ought to be bom by all the rvahn.
This I hold agreeable both to law and rensoo.
M^ lords, these opinions were delivered Ly
tiie judges sevcivlly and apart, they were pro-
cured by the sulicitatinn of my ionl Finch. '1 he
judges, as be severdly procured their haocj^
were hy him enjoined secrecy: accortlmgly
.these opinions walked in ihe dark for a year
and upwards. Afterwards the prucurer of tbem,
laj lord Fincb, liked them so well, as tliat tte
presumed to deliver them to his mnjesty. Bv
his procurement, a letter was directed Irniii ba
majesty to the judges, for the delivetj of their
opinions in these aod sonie other addiiionak
The former that halh been read is more mo-
dest; it is only ihut his majesty is thesolc jud|>e
of the danger, aod that tbe inland as well as
the maritime towns are clia/geable to the de-
fence of ihe kingdom. — It is not declared ia
cbese, ibnt this chnige may be imposed by his
majesty alono; for the eiprtssion is onlv, that
tbe charge may lawfully be imposed ; sav not
by wboni. — In ihe other opiniuni they procail
a malo ad ptjits, and speuk plaiu Eugli^ti, whiih
foUonetb in kac strba :
The CiS£.
C. J?. When the ^ood, and ihe cose and
safety of the liingdom in gaieml is concerned,
und iht: wliole kingdom in danger, wbeiber may
not the king, by writ under ihe great seal of
England, command all thesulyects in this king-
doin, at iheii charie, to provide aod fumiiih
such number of ships "itn men, victuals and
ammunition, and for such time as ha should
think fit, fur tlie defence and safeguard of ibe
kingdom from such danger and peril ; and by
law compel the doing ihrreofr in ca»e of refusal
or refractoriness? and wlietter io such cate, is
not rhc king tbe sole judge, both of tbe da^er,
und when and how tlie same is to be prwenwl
and avoided F
TbeJudces Answek.
May it please your eicellenl majesty, we
have, according to your raaicsty's CDmnwad,
severally, and every man by himself, and ^1 of
us tugetlier, taken into seriuus causideratioD Ibe
case und i^uestmns signed Ly your majesty, and
incloseJ iu your rojul letter; a^id we are (rf
opinion, thai wlien the good and safety of the
kingdom in general is coucemed, and tbe wbule
kingdom is io danger, jeuc mojctty maj b/
I«a] STATE TIUALS, 13 ChabU) I, IfS: .~ia ihe Cax qf Ship-Money. [l.^M
vrit under th«gr«atMnlof£ogiand, command
lit thesubjecuof tlitsvour tingdom Ht tl.eir
^arge tn provide and fuiiioh such number of
Jijpi, nith men, nctunls and
or the defeDce and satvgi
rom such d^ingcr and peril ; and lliat b^ Inw
(Our majeit; u\aj compel the doiiij; tlicn'of, in
:mse of rcfuaa! or refractoriness; end we are
ilso ofopiniun, tbat in such cnse ynur majestj
■ the «ole judge, both uf die danger, utid
vhcn and how ihe-iamc is to be prevented and
These Opinions were lubscribed bj all the
ludgei in Serjeanta-lnn-Holl ; tbeT nereafter-
■ardf pubtiahed in die Star-Chnrober, Iliat itie
Hibjectj might take Dodce of Ihem ; and that
'iitj might never be forgotten, the; are enrolled
a all the courts of \Ve»tmin!.t«r>IInll, Id ' per-
petuain rei mcmoriani.' Your lurdthips wiU
M pleased to give me leave to lepeat them in
:heir plain and Icgnl seose, which I conceive to
>e ibus : That his m.tjesty, ai oflen as himtclt*
ileasetli, may declare that the kingdom is in
langer; ihai so often, fnr preveutinn of such
langer, bis mojeMy, bj his writ under \X\e greet
«al of England, maj alter the properly of the
lubjects goods, witnout their consent in parlia-
ment, and that in such proporlioo as bis ma-
iesn sliall think lit ; and besides, the altering
>f tie property of tbeir goods, for theprevcntion
if Inch danger, miiy deprive them of the liberty
>r their persons, und of their lives, and that in
tuch maimer at hi auelf shall please.
I, The first of these, viz. That liia majesty
nay declare the danger m often as he pleasetb,
iTnadegoodintbesevrords, Thnt the ding ib the
io!e judge of the danger, end Hlien the smne is
evented nnd avoided. !. The second.
oofisuhe I
alter
lubjects goods, iiithuut consent in parliament,
iu tlicsc words. That his majesty inuy, by writ
under the seat of Eniland, command and com-
pel alt tbe subjcct4 ol tbe realm, at their charge,
to provide and furniili siiips. 3. That lliii may
be in what proportion his m^csty shall please,
in tikese words ; that his majesty may comumnd
diem to provide and furnish such number of
•hips, iviiii men, victuals, and ammunilinti, and
fur lucb time at his in^esty shall think fit. 4.
I'be last, viz. that whicli concems our persons,
in tbisG two clauses : 1. That his mniesiy iu
cnse of refractoriness may compel the doing of
'I. This compulsioD in cnse of refractoriness
includes the person as well as the estate ; nay,
it aounds more in the personality than otherwise.
For the other, tIi. nliether lliia ptrsonnl com-
pulsion may extend so far as to life, I humbly
leave it to your lordships contiiderulion, upon
the other clause ; that is, that his niaii;sty is the
sole judge of such danger, and when and bow
the tame is to he preiented: whether tbe
words, ' how it is to be prevented,' in this cate
of personal compulsion, doth not leave tbe
maimer of it wholly io hit majesty's breast.
My lords, if these Opinions extend only to
Ship-Money, it it enough; hit majesty takes
what he will, and when be u'UI. If alt be taken
lo d;iy, and afterwards by ilf^cent or my own
hiboiir I gill a new stock or livelihood, that ii
no more mine ihan tlie furnier, so tliat there ii
no property left unto l|ie ■■uhjtci, though the
Upinioti!! ff) no further. Hut, ii.y lords, .Ship-
Aloney n not the whole client of tllcm; Ship-
Mim^y, by these Opiniuiii, is not due by ao^
jiL'cirhiiriiy hi Sbip-ikJoney : hut Sliip-Money i«
ll.i'refure due, becnuie lib nii^tiity is the sole
judge of ihe danger of the kingdom, and when
and how the same is to b« prevented ; because
his mnjesty, for the delencc of tlie kingdom,
may nt his will and pleamre cliai^c the people.
This is the ground, and upon the same reason
the cnmpulaion may be as well for the making
and maintaining Casiles, forts and bulwarks,
making of bridges, for lnin»piirtiug his armies,
lor provision of nages and I'lctual?, forsoidien,
fur horses and carriages : it may be multiplieJ
in infinitun. — It mn^v he done when the good
and safety of tha kiiigdum is concerned; this
eitcuds to h11 things, and at all dmet : ■ Quia
' JBCct in term, non fiabet unde codet.*
If these opinions be law, I humbly leave it to
your lordships considerations, 11 hether tbe go-
veriiroeDt be not ' imperium tegibus solutum.'
The next thing I shall oSer lo your lordships it
the Ship-Writs : a transcript of one of ihem di-
rected 10 the theriff of Dorsetshire, I shall deli-
■er; all the rest being of the same form. Be-
cause the writ is long, I shall open it briefl;r i
t is to [bis cllt'Ct. Tliere is a decUralion in it,
that ' sal us regiii periditabntur :' That tba
safety of the kingdom was in dntiger. There-
fore the inhabitants of the several counties ar«
uandcd, for ti.e defence of the kingdom,
for the cintody of the seas, I'.jr the safeginird of
I lie mercbnnls from piracy inward and outward,
that ibej ibould provide a ship of war, furnish-
ed with guns, gunpowder, double tackle, and
all otiier necessaries ; and this ship thus funiisheri
atadnyspt, lobe brought to PortsnwDth, to be
provided fur 26 weeks of mariners wages, vic-
tuals and other necessaries : and for the doing
of this, authority is given lo ihe sheriffs of the
several counties, to assess every one of the in-
jinbiranls ■ secundhm stntum et facultates suas,'
according to their tslates and means ; and fur-
ther power given liim, by distraining and selling
of the distress, to levy ihcsc niouips ; ' si con-
' trarios Invenerit,' tlien to imprison their tier-
sons : .And further declarer, that nil this may
be done, ' secundum legem tX cnntueiuriinem
* rcgni.' The sense I conccii e is briefly thus :
Th:U by thelawsoflhekinEdom, wbpnhisma-
S'esty sbnll iltclaie that the kingdom is in danger,
le may aJler tbe property of ihe suljects goods,
(ind imprison their persons; nay, that not onljr
hi^ mbjcsty, but tlic sheriSs may imprison their
Ecrsons. 'By tbe law ihc lord miuht imprison
is villain, but could nut transfer that power to
the baiiift', or lo aiijr other ; it wai personal.
That the cxeculinn of this power over the pet-
sons of the subjects hath ^onc no farther than
their imprisonment, whetbct therein we be not
beholden to his maj«itv's fence and gooUiieis,
IJo;] STATE TRIALS, 15 Cii.l. 1037.-
nnd iiTitliiiii; nc all to llie n|iiiiioti8 of iIk' jiiijgcs,
1 iL'Uie It tu Vimr lorcithipa coiiiiderntion;.
'1 111.' lau th'inf^ i>, Ihc Judgmeat in ilie Exche-
■juc-r. ill tlie l;it)i vinr nl' his now mnJFStj'i
I. >i;ii. nsfliiKl .Mr. Itxitipiitu. Tlie Kecunl is
*i.rj lung ; ( slinJI britliy Open it to your lord-
s'lips. <>juuno Aug. 11 Cur. tLere iuiied Slnp-
Writ:> 10 ths soltjI counties; nmougtt' tne
rest tu tbe county of Ducks. Tlie slicilF aa-
MSKtt die inliDliitunts; mine of 1 lie m niadede-
Riult, nnil did not pny. Upon a Ccrliornri nut
uf tlie Cbtncerj, directed to the iihcrifr, be ccr-
tilics tbe person* llmt iiiude default, logcllier
with the sums asseibed upon them. From ihe
Cliancery, by MittiTnus, these ccrdlicittes were
*(ni into tlie Ei chequer, to the intent processes
lui^ht issue against tlie [Icfmilters. A Scire Fn-
cias issued to the slieiilf uf Bucks, who there-
ii|i<in, a'ltioiigst Diher reiunis tcturn* that Mr.
Haui4>ilt'n l.nd been assn&ed ttOt. fur some
lands in Siobe-Mandevilleiu tliHt couLty, which
be h:id tint pnid. Mr. Hampden appeared,
uud upon his appearunce demands Oyer of tlie
SbiLi-\Vrits, una the otiier proceedings. After
his nearing ibcreof, and unuentaudiug ibe con-
tciiTs, he dsmiirg in law, thai is, demands the
Jucl;:iii«nlanlj O^iiiinn of the Judges, uhethir
tl.is HTit was sulbcicnt io law, and to force him
n [lay the aoid QOt.
i'llis beiiii- a f,reut and generol case, the Ba-
■rons of the Kxthtqiicr deiiired the as«isi«iice of
I he re- 1 of the Juil^cii, uhu did join accordinclj.
Tbe caM." cnuie to be nr^ui'd ; there B'ere four
argiiiiieiits, two on Mr. Hampden's «de, and
two on tlic oilier ^idc : I'lie nrst was in Ikli-
cbaelinas Term, iifter All-IIu lion tide ; nml all
the lour B^Emnei.l^ were speeded bcl'iu'cCliri^t-
■nns day, t»a of theni in the tenn; and no
louger time could be procured for the rest, but
tlu: >h')rt vacation between Mlrhadiiin!. Term
and Clirisiinns. Ii was n case of so little ciiu-
lerm after term is usually given to Rrj^ae any
demurrer, this must he argued betwixt Atl-IIaf-
lontidc Diid C'hrisNiia) ihroiiKhout. After the
•rgumcnls, the counsel on both sides were com-
HiRiidrd to bfiiiB bcfure rho Judgrs tbe records
and authoriiiescitedi They wete brought; and
for [lie ease uf the JudsM, many of iliem on
Wr, Uatopden's part Here abbreviated on the
back sides: ibiise ubbreviaiions were cora-
mandtil to be expouuded. Afternardstbe case
CHiiie to argument at ih|! bench ; there ihecnse
«tt* judged, and by the greater part of the
Judges Jujl|tment wai given againsi Mr. Ilamp-
dtn. When the Judges hail delivered their
Opiiiions, it nas tlie (laroiis part to give Jodji-
ment; the Juil:;meut »hs, 'Quod separalia
' bretid pradici' et return' eoruiidcm ac iche-
' dul« predict' eisrierii anuex' ar materia in ets-
' dem content' aufiic en' in It^ exisiunt ad prtc-
' falum Johnunem liainpden deprsjdict. vigioti
' t'liJii super i)i<iuiu in lurma et ex causa pne-
' diet. HSMSMii uncrnnd' Ideo cotisiderntum eat
* ner cuiiltni bui-uii' quod przdiitng Johxnnes
' iluini'drii dp eisdaio viginti Mihilis oiicretum
* eiiude Mtistiat.'
— TJie lOagagaiait John Hanipde»,aq. [1366
My lords, ilits Judgment is a fiiH anJ plmBiy
execution of the former opinions of iheJnijn
and of the Ship-Writs, for w> much as it md-
cernsour propriety : It irna given iu Mr. Ilunp-
ricn's case or' ' " '--• '" ■' '''■ '"
to binding it
I my eye, i
Jmlgini nt adjud^-d alr«Bd<f in tbe Eicbnaer.
My lords, these extra-judicial Opiniomolibt
Judges, these Sliip-Writs, and this Jm^mnt,
art those carria;;es which have intTbduccd tliii
sense of the commons, Tliat tlie fuodninntd
laws of the realm concetoiiig our prupeit; ad
our persons are s)iaken.
My lords, the commons have takm the aliv
judtaal Opinions published «tid enrolled, mj
the rett, severally into considei«tioD ; din
have been read openly in the house ; and ifttt
lone debate, and bog ralber in coutirieratiM
of the greatness of the matrer than nf ihedifr
culty uf ii, they cnme to vote; four sncrd
Voles ppsitd upon them ; the Votii p»M*
without so much as one neratlre vaice to tnj
of ihem. Ttic Votes were in substance, Ttol
they were ngain't the laws of the realm, d«
rl<(1itofihe property, the liberties oftbtut)-
ject, eontmry to the former resolutions of d»
parliament, and to ihe Petition of Hij^bt: nt
extra-jtidicinl Opinions enrolled, they voted li
the whole, and every part of them, to be eoi-
tmry to oil thc« ; for they did conceire, ttal
in these opinions there wa» not any one cbiw
that was agreeable to the law, bat that lhi«agl>-
out they were contrary t^ the laws.
."ily lordi, lite things ivhich the eoniWM
took into their coDsidemtion, before ihry prt-
cetiicd to their Votes, wore the proceedinp ">
thpiniiliHiiionth.W 3 Car, when the PeiitiOTof
Itigiit
The
; the reason* inducing them l)>ciTt)
were, because in that pariiamect all ihost nmr
had been debated, property of goods, liberty n
l-ersims, ond security of our liies. Tm) of
Ibem, that is, properly of goods and JAtnj <i
persons, by Xbe ocoHsiun of the C^oainaisNM*
for the Loon, and Ihe instruction wherentb
these commissions were accompanied ; ibK
concerning our lives, bj occasion of ibt W";
missions that had issued for the eiecutiq "
Martial Law. Thc^ ronccire, Uiat if any tbin
conftining ihcfG had passed both houseitiJ
bis miijtatj, or the judgment of both bot«»
without his majesty, iC would be in rnin In lii»
fuither, that it would be dcfUM agrTf : N»r,
my lurds, iheyliad further coiuiderBttau,ihii>>
those were already seKlcd in that parKuiO',
it would not only he derogatory to tbe juii^
tion of parliament, but (tauperous to loot
higlier, as that they would infer a defrd i"
tliose procredingi, and cast an nspenioa a^
that parlifmicni. 1 am commanded nrni l"
present to your lordships consideraiion th*
thinm ivhich satiify the couiuoii^ "hicll M
thttt tlirce :
ia»] STATE TRUIil. I3Cu,>i.lcsI.
t. The CommiMions foi the Loans, with the
in-tniction«. 9. A. ConunJsaion cnlied The
CauuuissioQ of Excifte. S. Aiiaddlciotiut'siiv-
ing, which whs desired bj jour lordship* to
have been added lo (he I'cciiiijn of Itigiil, ai
the time of the framing of it.
The case upon the Cmnuiisbioii fur the I.ODn>
Btnndelh thus i 13 Octiib. 9 C«r, divers Com-
missions were directed [o sundry conimissroTiera,
lo the number of 60 or TO lords aud gentienieu,
in the severul comities issued, wherebj a ront-
pulsoiY aid, by way of Loan, uas requited of
the subject : TJie causes and grounds of this
be these: Tlie king found lbs crown cngnged
in ■ war, bj tJie HdViee of both houirs in par-
liament; thttC not only the kin' and the sub-
ject, but also bis allies bcyontf sea were in
danger. Tlie parts, beyond sen, ivlicre our
xioih is vented, and ihini ivhfiice we hiive most
of our jjruviiiuii for »lii|ipiiig, were endangered ,-
his uiBjesly's treusuref wei-e exkiustcd, aud his
roffers empty. A pnrhmncnl hud been sum-
moned, but nil supply. I'navoidjlile iieces.sity
both at home and abroad niultiplitd the ene-
mies. Great and mighty prcpurations, b^ith at
.aeaand land, ihreniennt the kingdom di^ily.
Not only the king's hunour, but the safety
and very tubsistence of (he king and people,
aud of [he true religion abroad, arc in apparent
xianger uf suffering irreparably, unless nut only
^ speedy, but also a pre»ejjt stop be made ;
whidi ciuiuot admit so luii;i delay a>> the cal-
ling of a parliament. The kingnssnrtd on tlie
royal won! of a king, tbat not one penny should
be bettoived, but upoil those public sen ices
only wherein every one of them, and the whole
body of Uie kingdom, their wives, child.-en, antl
posterity, have their personal end common in-
terests, Tlie commissioners diligence com-
manded, as .tbey tendered (he king's honour
tmd safety of the realin. tlere ' saius regni
' periclitabatur,' the whole kingdom wrs in
daiiger, as in tlie judges opiuiona, and as in (he
ship-writs, and judeiuenis in tlie Exchequer.
Nay, my lords, furtner^ the Safely and very
■ubsistenceofthe king, people, and true religion,
were in danger of suiTerjng irreparably; the
dangerous instance, QOt a speedy, but preset
slop mult be made ; the .supply could not 9tay
for a parliament ; at this time his majesty Vfol-
Ars were exhausted; the king found the crown
engaged in this ivar, befure iho accesi of it to
liimself, and tlial by advice in parliament; »U
(his expressed, only Icniliug of monies for pre-
vention required ; but it wa» a comjiulsory
tiling, and became compulsory, by tlietnstruo-
tions to hiud Offer to the board, and imprison'
■nenC for refusal. These cominiasions were, in
the parliamcjit 3 Car. firit resolved in the com-
DiooB house to be against the law, afterwards
liy your loid^hips, and consemt^ unto by his
majesty ; and arc declared to be so in rhe Pe-
ti»u of Ilishi; and the imprisonment nf the
subjects for refusal, declared in the Petitino uf
RkIiF to be against law.
Jrly lotdt ; The suC i» tli* Cpminisuuu caO-
lfl37.— IB tilt Cute qf Sii/hSfoa^. [1170
ed. The Commission of Excise. Tiiis was dmed
ultimo Feb. it was dated after the summons to
thai parliament ; This commission issnud to 33 ,
lords, and otlirrs of his majesty's ptivy-coim-
cil; the commisiioners are Iliereby commanded
to raise monies by in i positions, or otherwise ;
as in (heir judgments iniy shntl find to be most
The causes where'bre these monies are ro I.e
raided, are ex pre^'^ed to le(h*se: Thf di'fe-.wn
.and safety of the Ling and people, ubicli witli-
out entremest baza^'d of the kin?, kin^dum, nnd
peopfe, and of the tiOo's friends and nllits be-
yond seas, cannot ndnnt any longer delay ; iit-
evitable necessity, wherein _forin iind circum-
stance must rather be dispensed M'ithal, (bnu
the substnncc lost. The c':'iiiii6sii*frano[ ti)
fiiil tt.erpin, as they lenderi'd bi', majesiy's Im-
nour, and iLe safety of the kinud -m viid inn-
pie. Ilrre ' salus repii ])er:ciitHbatnr,' (he
whole kingdom declared lo bi: in d«ngrr, iii
greater nnd nearer than in the opinion of the
Sliip-Writs, or Judgment in the Cliet|uer.
rn (he parliament 3 Car. this Com mission
was adjudged by the CMiiiiiona lo he ai;uiu5t
llie laws of this rcidm, and contrary to (he
Jurigintnt given iu tlie Petition ol Itighi; and
after a conference wiili your lordthips, de^ind
his majesty, (hut it might be cancelled- 'l"he
(hen Lord-Kcip^r shortly after brouiiht it can-
celled to your lordships in (be hotise, and tli»r«
said, it was cancelled in hin ma-jciy's pre-
sence ! You sent it Ciincelled to the coiumijiis
lobe viewed, who afterwards sent it back 10
your lordships. '
My lords. The Inst is the sdditinu of saving
desired to be added to the Petitioa of Right,
which was in these words :
• We humbly present this Petition unpi yonr
' majesty, not only nith a care of preserviuj
' our own libertiesj but with due regard 10 leav*
' entire the sovereign power, wherewith your
' majetly is trusted, for the protection, safety,
' and happinBKS or your people.' Your lord-
sltips desire of Ibis addition to the pBtition nf
Right, was taken into consideration' by tb»
commons ; nnd after debate, it iras thought lit
by ibcin to be rejected. A conference was had
rfilh your lordships, and Mr. Noy appointed by
thecommniis 10 declare the reasons of ti.eir re-
solution. Your lordships not receivb? satiifiic-
tioo at that conference, whctliec this addition
should be rejected or ilot ; il was again debated
ill tlie commons house, (hey vciltiirrd upon th«
same bottom again : It was thercnpon resolved
to he rejecied ; the reasons of ibeir rejection
First, They confess, that if these words wer«
taken as a bare proposition only, without any
further reference lo the Pciition'of Hiphl, that
it lias a (rue prnpositioil. IhaC is, tliat ch»
laiv hath trusted ihe king willi sovcriign power
for the protection, safeiy, and happiness of ihe
people. But if it iliould be added to the Peti-
tion of Right, a» was desirrd. then was it not
true, but would make the Petition of Righi.wfo
dt te, and wh<^y destruelive to iudf in all Uie
r judgiuenU; they hope the
snme from four lordships. Be^dn, di; Inrih,
thut ihe case is now mncb raried ftmn ■lulit
n-ji then ; nut oiilj id the mutter, but u il
concerns the bon<iiir and jurlsdicitoo of ibit
grpal judicatory, the parliBineol.
Tlie brLicli of pri*iJegej in the membtti a
tenilert}' resented, beuiuse that wiihoui iliii
frcedoni they cannot adviM and CQn«ilt cn-
ceniing the ardua regni. But wheo ibcj hut
done all, to haie their Judgments and tbtiriai
of part, orerthro^n bj the judges aft«r«wili,tlu
mokes parliaments to be nothing ; ihu set: tf
the judges above tbe parltanieni, thii poB b
out o(' hope of redress ; ifthej niaj ovrrthraw
the proceedings of ihat parliament or 3 Car.
they maj by the same reason ovenhraw ite
aciinns of this, nnd of all future parliaiuaiu.
My lords, till) wiis not the pr.iciice oF tbrir
predecesiore, though Uit in'pri(atecanKs;u
dilficaily of lav> arose, ihej olnays comuhrl
this oT.icle, and thence recetied Ibeir luuHt
1871] ffTATE TRL\I5, ISCh. I. iGSI.— 7%: fOigagmMtJoiM Hampden, aq. [llij
parts of it ; that it would proceed ' a bene di-
• visis ad mala cniijuncta:' for then tlie I'ltiiion
of Right, as tJiey resolved, would have this
sense. Whereas in the Petilioo of Klght it is
taid. That no aid, ta», laillagr, or other charee
whatsoever, may be imposed upon the people
without their tree conicnt in parliament; it
would have this construction. It is true, it
cannot be done by the king's ordinary poner,
but it may be done by that Mveiciga power
irherewiih the law liaili entrusted bis majesty
for tlie protection, safety, and happiness of the
people. So likewise for impribonniait, that
they ought not to be imprisoned Hitliout due
trocess of law. It it true ordinarily, but ihe
ing mny imprison bv his sovereign power,
wherewith the law bath intm^icd him Tot ll>e
[irotectiun, safety, aud linppiness of the people.
So that, fur that martial law, that tbe subjects
lives ought not to be taken away, unless by doe
{roccss of Ian. It is true ordinarily, but the
iog may do it bj his sovereif;n power, where-
with tlje law haih intrusted him for the protec-
tion, safely, and h.ippinrss of the people.
Whereby tliey conceiied that it «ould not only
make the Petition of Ri^it to be wholly de-
structive of itself, but likewise this Petition of
Rinht would leave the subjects in a far worae
condition than it found ihem ; for it would ne-
cessarily infer, that which is against the law,
vii. That the king, by his sovereign power,
niieii be pleased to declare thnl it was for the
good of the people, miglit do oil this.
Your lordships, at a conference of both
house*, engaitcJ on the pan of the commons
by Serjeant GlauTlle and sir Henry Martin, t«-
tcived satisfaction from these reasons, and con-
sented to tbe leaving out this addition ; and
accordingly the l>eiiiion of Right passed, and
u printed without it.
My lords, these were the things I was cora-
manded to present uotu your lordships; otbei
things there were, as the sentence agaiast bi-
shop Mainwariug: buttliese weiglied so n.uch
with tjic coiomona, as liiat they conceived they
Deeded no mure. My lords, These preredeuts
of that parbainent, and these opinions of the
judgts, the Shi|>- Writs, and the judgments in ihe
Exchequer; they are like the tnoTiuctetsof a
well, if one go up tbe other mu*t go down :
' non bene conveniuiit.' My lords, we have
not cited these precedents out nf diffidence
Hint your lord-vhip, had forgoucn them, but be-
c,i use; 0 tilers hiive ; or that we distrust your
lord ships justice, if you had fiirgotceo them:
fiir befuie liie.-s were your lordsi'ips concurred
jii opinion with yoar worthy ancestors, that
fir=t gave ilieni. Their noble blood runs in
jijur veins. It is now to ronfinn your own
judgmeiH as well ns theirs; in your lordships
breasts, tliere are the sumo magazines aud foun-
tains of honour and justice as were tiien; these
judgiuentsTind proceedings were the actions
of both houses; ihe danger by the violation is
equal. The commons see nothing in ihejudgea
opinions Of ju;lgmtnt, why they should recede
from their funncr judcments; they hope the
of great and general concemmeDt, thi
ever adjourned ibem hither, as things toolupl
for tliem. — ■ Quia c-insolca patnim, qui Irta
'juraque servat,' doth well; they have Hto
tliat in their hands they bad not to do wliui ;
and tiow they have handled the nutt«r, ym
lordships luve heard.
ThojudgCT, Msisdeclnred in tbePariiiomi
Roll of Rich, 'i, are the executors of tin «*■
lutes, and uf the judgmeatf and ordinasiXjDf
parliament; ihey have here made thenitdiB
the executioners of them; they have mitr
vuured the destruction of the liindainait*I>iif
our laws and liberties. Holland in the Lo»-
Countries lies under the sea, the superEcio °f
the land is lower thaa the saperCciesoftbeic*;
it is caoital therefore for anj man to cat tht
banks, tiecause they defend the county. ^
sides our own, even foreign aulhnre, as Coo-
mines, observe, that the statute De TiDa^
and other (Ad laws, are the sea-walls and bub
which keep the commons from tbe itmaduuii
of the prerogative. These pioneers, rhfj ln«
not only undermined these banks, bni llx*
hnve levelled them even with the ground, ll
one that was known to be hatit palrt W
done this, though the damage be the sipk,}^
the guilt is less. But the consertatora n-
panim, the overseer* inlrqsted with the (t«*«*
of lhe.se banks, for them to destroy thfm, i*
breach of trust aggraVHles, nay, alters ibr M-
lure of the offence. Breach of wist, ihw^
in u private person, and in the least tilings "
odious amongst all men ; much more in a |«^
lie person, and in things of great and )iutilic
concernment, because great trust binif' tii<
patty trusted to greatest care aud fidelit*. "
IS treason in the constable of Dover cas'lc >°
deliver the keys to the known enemies of li«
kiiiftdoiD ; becau^ie that castle is tlie key o^l"
kini^dom; n-hereas if the house-keeper of*
private pertoii delivered poMftsiaa iohit)*<
1273] STATETRULS, ISCHMittil. lG37.—maeCMe<^Ship-Mo«ey. [1271
vennry, it is ■ crime »carce punishable by
The judeci under hit mnjetty tre the per-
sons trusrrd with the laH»i and in thpm, with
the lives, liheriie*, and wtares of ihe whole
kingdom: this trust or all «e hnve is primaiily
in his mu'ipsry, nnd from liim delegated tn his
Judges. — His mnjesty, nc his ciironation, is
bound by his oaih to execute justice tn hii
people, according .10 thelaits; thereby to as-
sure the people of the fiiithful perfutmaJice of
this great inist. His majesty apiin, ai lie
trusts the judges with the performance of this
part of the oatli, <o doth be likeirise exact ano-
ther oatb of them, for their due execution of
justice to the people, according tu the laws;
nereby the jad^t stand eotrusted with this
part of hi* imijestv's oath. If therefore ibe
judges shall do wittingly aguitist lair, they do
not only break Uieir oaths, and thereiti the
common fnith and trust of the whnle kingdom,
hut do as much as in them lies linear and
blemith the sacred person of his mnjesEy with
the odious and hateful sin of perjury.
My lords, The heinousuess of this offence is
most l^iblc in the setere punishments which
fonner ages have inflicted upon those judges
who have broken any part of ibeir oaths wit-
tingly, thoogh in things not so dangerous to the
•abject as in this case in question. SirTlioniBs
Waylnnd, chief justice of the Common Pleat,
Edw. 1, was attainted of feloay for taking
bribes, and his lands and goods fnricited, as
appears in the Pleas of Parliament, 18 Edw. 1,
nnd he was bani-'lied the kingdom ns unworthy
to lire in that state, against ivhi<:h he had so
much -offended. Sir William Thorpe, chief
justice of the King's-Bench, in Edw. 3's time,
having of five persons rec«ved lite several
bribes, which in all amuunted to 100/. was for
this alone adjndged to be hanged, and all his
lands nod goods torfeiled. The reason of (his
Judgment is entered in the roll, in these »ords;
* Quia prredict' Willielmns Thnrpe, qui sacra-
' mentum domini regis e^« populom suuoi ha-
' buit ad cusludiendum, Tregit malitiose. fhJse
' et rebelliCer, quantum in ipso fuit ;' because
rhat he, as much aa in biin lay, bad broken the
king's oath made unto the people, which the
king had intrusted him nithal.
There is this notable declaration in
judgment; that is, that this judgment was
to be drawn into example neainst any other
officers who should break their oaths, but only
■gainst those ■ qui pradictum sao^mentui
' I'ecerant et fregemnt, et habent leges Angli
' ad cubtodieodum ;' that is, ouly to the judges
' oaths,_who have the laws entrusted '
This judiiment was pven 34 Ed. 3.
year in the pnrlinment 95 £i(. 3, it was debated
in parliament, whether this judgment was legal
et nuilo contradictiU, it was declnrei) lo bi
just and according to the law; and that thi
tame jutkment may be given in time to comi
upon the Tike occasion. This case ii in point,
that it is death for any jtidgewitdn^y to break
lii« oath, or an; put of iL This oatb of
Thorpe is entered in the roll, and is ihe same
■Dtrbatim with thejuil^ oath in IB Ed. 3, and
-' e same which the judges now take.
Your lordships will give me lauTe to observe
e differences tietween that and the case in
First, that of Thorpe was oolj a selling of tlie
« by retail to chose live persons ; for he had
ily five several bribes of those five persons;
the passage of the law lo tha rest of the sub-
jects, for aught appears, was free and open, —
" ' these Upiniunt are a conveyance of tlie
by wholesolej and that not to, hut from
the subject.
In that of Thorpe, as to those five persons,
was not an absolute denial of justice; it was
It a damming up, but a streigbtening only of
the chaanel. For ohereas the judge otighc
rrddere, that is, the law being thfc
birth-right and inheritance of the subject, the
judge, when tliepiriies in suit demand judg-
thould redare, freely restore this right
lem ; now be doth not daie, but vtadtre,
with the hazard only of perverting justice : for
the party that buys the judgment may have a.
good and honest cause. But these Opinions,
besides thai they have cost the subject verj
dear, dearer than any ; nay, I ihink I may
truly say, than all the unjust judgments that
ever yet have been given : witness the many
hundred ihouiajiil poundu which under colour
of [hem have been lei'ied upon the subject,
anioonting to 700,000/. and upwards in money
paid unto the treasurer of the navy; besidet
what the subjects have been forced to pay to
sheriffs, faailiiTs, and nthen, which altogeilier,
I is conceived, amouois not to much less than
million; besides the infinite vexation of tbe
subjects by suits in law, binding them over to
attendance at the council-board, taking of them
from their necessary employments in making
oftlieir persons; I Say, my lords, liesides what
is past, to make our miKries complete, tliev
have as much as In them lies made tiiem enit
lets ; for by these opinions they have put upon
themselves and iheir succeuors nn impossibility
of ever doing us right again, and an incapacity
upon us of demanding it to lung as tliey con-
My lords. In that sore famine in the land of
Egypt, when the inhabitants were reduced te
the next door to death, for there they say,
' Why should we die for bread i' Fiist, ihey
gave their money ; next, their Socks and cat-
tle ; and last of all, their persons and their
lands, for bread ; and all became Pharaoh's.
But by this lex regia, there is a transsction
made, not only ofour'penons, but of our bread
likewise, wherewith our persons shimld he
sustained. That was for bread, tbis is of our
bread. For, my lords, since ihese opinions (if
we have any thing at all) we are not at all be-
holden to the law for it, but are wholly cait
upon the meri^ and goodness of the kmg.~~
Again, There tbe Egyptians themtelvet sold
themteltct utd all tbey had to the kiof ; if
1275] STATETfUALS, liCu.L 16S7. ^Tit King agaiAttM»tlbnfAK,mi. [l^K
oiui hi4 been to 4oitr, if it had b««n dan* bjr
our own [tee consent iu parlianeor, we had
tl.c lets cnu:« tu cuiiiplaiii: but it WM doDe
■gainst our mill, mid b; thow who were trust-
ed, aad tliat upon oaili, with the prtMrratiun
of tbote tbingii for us.
M; lords. The laM nre our futtt nnd bul-
wki of defence. If llie captain of a caille,
«d17 through fear and cowaKlice, and not from
any cojnpliHiice with the enemy, surrgnder it;
thit ii treason, ea wai adjudged in the parliii-
meat, 1 Ric, S, in the two cawts of Grymes
and WeMon, and in the case of ilx lard Gray,
for Burrenderiiig of Berwick Castle to the Scoti
in £dir. Sd'i time, lliough good defence had
been made by hita, and that he loit his eldoit
son in maintenance of the siege ; anil yat the
loMof a castle only leseth not n kinndora, but
the place and adjacent parts, witbnuc trouble
10 the whole. But by these opinions, tliere is
k surrender made of nil legal defence of pro-
firioty ; that w bicb hath been preKbcd is now
judged, that th«« is no meeun tt (uum between
the king and the people, betides that vihioti
concerns our peraons.
My lordu, "The law, it is tlie temple, Ute
sanctuary whitlier the subject is to run for
slieltcr aiul refuge. Hereby it is become ' tcm-
' plum line numine,' as was the temple built
by the Roman emperor, who, nft^- be had built
it, put t)D gods into it. Wa liave the letter of
tl)c taw still, but not tlw sense. \Vc have the
fabric of the temple still; bat the (ods, the
' dii tuteUres,' are (p>ne.
But, my lords, this is Bot all the CMe, that
is, that the In* now ceneeth to aid and defend
us in our rights, for then posteninn alone were
a goad title, if there were no law to take it
sway ; ' occgponti eoncederetur, et melior eitet
' possidentis candiiio.' But this, though too
had, is not the worst.; for lieiidee that wbidi
it privative in these opinions, iliere is sonie-
what positive : for now the law doth not only
not defend us, but the law itself ii made the
instrument of tnkiag all away. For whensoever
fail majesty or his svceessof* shall be pleased
to say, That the good and lafety of Che king-
dom is concerned, and tlMt the whole kingdom
is in daiger, then when and how the came is
to be prevented, makes our persons and all we
have liable to bare will and pleasure. ^ this
means, the sanctnary is tum«lintOHdiain'bles:
the forts are aot sligbted, tbnt so they might
neitlier do ns good i«' hurt ; but they are held
■gainst U6 by those who ought to nave hald
them for us ; the modth of our own cannon is
fumed upon outaelves.
My lotdst in tbeae eipreMinns tbare is no re-
flecuoD upon his mmsly : It is only that those
jud|;es would h«ve forced upon the law au ah-
naiaral and contrary notiDB ; his majesty's oar.-
ri^ in the bdsineas oleaA h(« justice. — The
' t Opinion of the jodgts under their hands
s procured b . .. >
•Illy, and hy i
t Opinioas praoated the letter from kus
■ty far the Opinions inrsllod, wbctwin, at
lihewise jn the case in the EicfaajDcr, the
judges were left free, as was acknowled^d by
two of the j udget in tb* eii:liequ«r-chaiaber,
who argued against ihoie Upinioin, with thi«
protestation, tliat if tliere were any miscarriafa
in that business, it must fall wlully apon thcM-
selves; tliac tite kin; was blantelMs.
My lords, we know bis inaje:>ty's jiutice it
the fairest, the richest diamond in ha crown i
the ilust which theie men would hate blows
and forced upon it, ia fallen thoit ; aiul with
«our lordships helptug bands, it irill, hc bope,
oe cast upon thdr own taces, a Giter place for
it than the other. My lords, the oaui of the
judges, as cbey bind them to (he dae adminis-
tratioti of justice to the snbjecit, accordiDg la
tlie laws, so at they be of tbe king's coitncil hy
their oaths, they are hound iiiwfnlly to coumd
bim; that is, when their opiniona are demand-
ed, lliey are to deliver them aocordii^ to the
I ^11 therefbra put your lorilships in mind
of the memorable proceedings againit iboH
judges who have broken this part of their oat^
in that notable parliament held the Bleveoih of
liiohard tbe Second. In thii pariiamoit, ju<%-
meut of high treason was gino against 18 se-
veral persons,* and all (sere one of them) cf
eminent rank; three privv caimsellOTs; the
ardibishiip of York, the duke of IreUiul, tbe
earl ofSuSblk; tbe bi^p of Eieler the Ling's
confessor; fiveknigbts, tome wliereof hod ban
servants to Edward die 3rd, and alt, save tme.
servants to the then king; and some of tlMm
ofnoble descent; six judges, liocbton Lbeking't
Serjeant at law, Blake of tlie king's coonsel al
law, and Hake, the under sljenffoTHiildleMS.
Of these eighteen, eight were executed ; thai
it, sir Robert Tresilian the chief justice, fire
knights, filabe of llie king't counsel at law,
and Uske tbe under sheriE Thre«, that is, the
nrchbishap of York, duke of Ireland, and cad
of Suffolk, fled. Tbe rest had their IKes pas.
doned, hut were banished; their lauds and
goods forfeited, and little pension* allowed iImm
during their lives. It was made felony for ^
one to procure their pardons, and ibej to be
dealt with as traitore, if they retumad fron
their hanishment; and of those 18 persosisalt
save three were impeached by tlie commons.
Tbe offences which procured these eseraplary
Kiiehments, alibougn their ^oceediagB h*
I, and oompreliended all that
this partiunent, I'll briefly open '
lon)tbi|w. During tbe minority of that kia^
by ill coansel of sove sear ha penon tbrsa
were miicarriegtsin govemnieal. In tfa^ tentfa
year of bis reign, and tbe tweotieth of his ap^
a parliament was boldeo: in that parliament, ia
aid of good governnient, and nf due execntioa
of tbe laws, a commission was awarded ta 13
several peers, and others of greatest wisdeis
and fidelity. The comuiisioaeft had power ia
all thinp Qoneerning the hoosbold, nouns «f
justice, and tbe mveaaei ; ia a wocd, in all
> Vwi* N*. IS in this C«llKt»«-
fS77] STATETlUAtS, (SCmahluI. nai^~^a» Cuct/Sk^Mm^. [t!279
things concerning the good of the natm ; with
^1 power IidrII; ti> dMcnnine and put in elo-
cution sach driermioatioB for the honour of
tfae king, ihe better goTernance of ths jiesce
■d4 law> uf the realm, anil relief of ihe peo-
ple.— Ttjj) cotumitiiioii was to endure one
year; at the j'enr't cud the king would lie of
faU age.
JAy lords, tiie endesrouring to overtiirow this
eoniiiusjinn iitued by authoritjr of parliament
tar the welfare of the realm, upoo pretence that
it trenched upon the royal p^iwer, tended to
the ditlieriion of the king, and derogation of
the crown, ti^lber wiih the dextruction of the
commissionen who procured it, and put the
aaoie in execotion, upon pretence ibat they and
■ome othen had in parLiameBt forced the royal
•stent. My lords, the conspiring to ovBrthrovr
this commiision aod the procurers of it, ia Che
case in brief: Ibr altlwDgh there be divers
other articles ngainst many of tbea, yet this
was the ground-work of all; and this singly
and alone n declared in-ail the proceedings in
parliament to be ti«aMn. Of these 18 perton*
condemned, 5 of thenr were plotters, m, the
archbishop, duke of Ireland, earl of Sndolk,
Tresilian the chief justice, and sir Nicholas
Braiubre; these iniinuated into theking. That
tbis comtniision was in diminution of his kiogl^
power. Chat the procurers uf it had extorted hn
royal assent; and that this «n* treason: There-
upon I^ke one of the king's counsel at law
was advised withal, nbo declared his opinion,
that it wa* treason : he was commanded to
prepare an indictmeuc of treason against the
commissioner*, and some of the procurers of it,
who had been act ire therein.
Hie indictment was drawn by him, which is
entered in the roll, and is to this effect; That
they had traiterontly conspired amongit them-
selves in the parliumeiit, to make this commi*-
lion by authority of parliament against the re-
sality of the king, to his disherison, and deroca-
tton of the crown; that they compelled the
king's consent, aod that they confcdersted and
boond theniselTea to maintain one another in
so doing. — It was intended that tbrv should be
tried upon this indictment iu Midmesei or in
London. Utke the under-sheriff of Middlesex
was ai:qaainted with the businesi, who was to
prepare things for the effecting of tbis design,
■ome of the parties" to be indjcted not being
The five ploiten, that the king might the
more confide in their counsels, (for so are the
words of the record] and that under the colour
«f law thev tni|;hc cover their malice from Che
kins and the kin^m, before the trial was to
be had, they advise the king to demand the
opioion of some of the judges, tbac is of the
two chief justices, and chief baron, the judges
of the Common Pleas, nil io nomber, and of
Locton the king's aerjeant. Blake of the king's
. oounselat law was commanded to draw upthet^
questions for the judges opinionB. who did it
- Kcaardin^. For Uw drawing np of thew rjuaa-
tinns, and the iiidianenc, Hake was condemn-
cd and executed.
The question being drawn into writing, the
judge* were seiK for t<] Nottingham Castle;
where, in the king'i proence, they were com-
manded upon their allegiance to deliver their
opinion*. — t. The first queMJon was, Whether
the cnmmiision wo* in derogation of the crown ^
I'hey answered, It was. -S. The second ques-
tion was. Whether tlie persuading and urging
the iiinE'B conieut io parliament ibereio was
treason r They answered. That it was. Though
there were some other questions asked, all con-
cerning parliamentary proceedings, yet these
were tlie main, and those for which Uiey were
condemned ; as appears by ibe replication of
tlie communi to the jsdges answer, and by the
word> of tlie judgment, via. That they knew
that this, commission was awarded in pariia-
ment, that it was for the pnbhc good; that
they Lnew of the traitorous intents to destroy
the procurers of this commission; that t bey
knew the Jaw, and that it was not ireaton ;
and had delivered their opinions thereby under
colour of law. In cover their treasonable intent :
and therefore judgment of treaeon was given
against them, and against Locton the king's ser-
jeaai at law, who had subscribed the opiaioiic
be other articles agaiiuC the rest, yet this alone
is adjudged treason in the sercitd judgment*
against eveiy one of-ihe eighteeti.
1. My lords, it is obrerrabla in all these
judemeots, that tfa«y are adjudged ti
the person of Uie king at agaiost
welTaj
lunwealth. i. It is there declared
upon great advice taken, that in treasons which
concern the king and kingdom, they are not
bound u> proceed according (o the rales of the
common taw and infciior contta, but according
to Che course of parliaments, so as tony be for
the common good. 3. Jndpnaut was given in
parliament, and eiecutinn awarded, and after-
wards a bill of confiimation passed, in respect
of their lands, to give them from a day past ;
and fiir declaration chat this should be no pre-
cedent to inferisr cootts to adjudge the tame
cases treason, save only in pwlument.
These judgments were not huddled up iu
haste, but they were given upon long nod ma-
ture deliberation. These juagmenis were the
whole work of that parlibmenC ; and tlia pro-
ceedings against the fire ploCters were begun
following, which was a quarter of a year. And
it k declared in the roll, that ihey apeat a long
time, and took great pains to examine the evi-
dences, the hotter thereby to aatbfy their o"u
conscieaces and the world,
I insist the more upon this, to take away nU
blemish from these proceedings. It is true, tny
lords, these judfpnents were attcrwerds In the
parliameat of 91 Rich. S, rewkad aod-imde
ia7iJJ STATETK1A15, I3CH.I. 1037.— The KaigagaiaU John Hai>ipdn,aq. [\^
void. But, m; lords, ihitt parliament of SI
Rich. 9, of revucation, wu held bj Ibrce, as it
i« declared in the Pariianient Rollii of 1 Hen. 4,
n. 31, 83, that it wai held ' viri. amiatl), et
• si^tttariij tinmen!i&.' I'he koigbti of parlia-
ment were not elected by the cninnmni, ' prout
• moa exi^t, sed per regiani voluntotem :' And
3o the lords, • suminoiiiri fecit rex domiDOs sihi
• bH harem PB.'
My jQnl], by tlicse precedents it doth appear,
that chi< parlinment of revocation wiu no free
parliament, if nt all it deserves the name of a
parliament. But to put nil nut of doubi, in the
parliament of 1 lien. 4, n. 48, these judgiuenis
of revocation are declared to be mnfn, ' iniqua,
• et omni jnri el raliiini repugnantia,' errone-
ous, nicked, and coutrory to alt right and rea-
■OQ. In the p!irliunenc of 1 ilen. i, in print,
these attainders' are confirmed: So that these
judgmeota of attainder have the authority of
two acts of parliament, both of chtiu of force
at this day.
Your lordships will give ine leave to observe
the differences and agreements between the
offences of tbose and nf the present judges,
and as well in the way and mauner of procure-
ment, as in the matter of them. For the inau-
ocr of procurement, those judges in Rich. 2's
time were in the king's presence: and as it is
b the Parliament Roll of 1 Hen. 4, a. 18, they
were ' violenter aitracti,'' violently drawn to
deliver their opinions, and ibat ' metu mortis
• etcrnciatu corporit,' for the fear of death and
tOTtares of their ^wdies : and at their trials leie-
tally they say. That in part violence had been
'offered to their persons, because they bad dif-
fered in tlie delivery of their opinions. My
lords, ibis was sucli a miscarriage in the juttgei,
these circnmstances considered as miglit ' cu-
' derein viruiu fortera etconstflniero.' But, my
lordti, fear or cowardice is no plea for delivering
up ofihe fort* and bulwarks of tlie kingdom.
But in the present business there is none, of
all this ; it came from tvilhiu ; there ii no out-
ward fiirce. In those ofRicb. 9, it wa* ' actus
' iinicus,' once done at Nottingham castle; if
the judges had been put to it the second time,
[lerhups the rest, as well as some of them, iiad
rifpented, and would not have done it over
■gniu; for Belkuape, the chief jusiice of the
Coniinoo-Pkaa, tbe same day declared his
•arrow, and said, That now ibere remained
nothing but a Itorse, a hurdle, aad a halter;
and Fultborp, another of them, the next day
rieclnred his grief for what he had done. But
here, alier'thr opinion in November 1GS5, a
year after, viz. 1630, they proceed ' a pestimo
' ad pejus pessimo;' for that was with addi-
lioDS: most of them daclared iheir opinions in
their circuiis, and a year after conli^m^d it
•gain bv the judgment in the exchequer. Here
it was done year after year in cold blood : One
murderous blotv, whereupon death follows, is
felony ; but lo multiply wounds upon the dead
body, and to come again in cool blood lo do ir,
it shews the height of tualice. Id ihese two
Uiiiigi ibeya^ree.
_ 1. That nhich the judges did in Bick, tt
time, tliey did against their Dwnknq*hd^ei
ibey kuew the commission was done bjr ki of
pariiaineni ; so here these knew the Peliuouof
Right damned ihe Cummissionen of. Louu,*
stronger case than that; tiiey subsciibed nmj
of tbetn, knew that the L'oiumi^ion uf F.icin
was damned in pnrhBment; they kneii iIk
other proceedings iu parliament, and iftixi
had forgotten them, they were alleminb fU
in mindorthem; they needed not to have coo-
suited with books and journal* of parhamil!,
savlngonlywiih iheir nwu memories.
S. Tliey agree in this. That their. opiDiw
tended to the subversion of tlie laws and ut-
tuiesof the kingdom: for in tbai ofitkL^
the pretence was, lbs endeavouring to om-
throw pnrliaiQeuts and juxrUamentaiy prooMl-
ingi ; the conspiracy ol the denlb Ol* ik pre-
curcra was only an aggravation. It wia tin
treason to conspire the death of a privy nuit-
sellor, or to kill .i judge, unless be lie uixin l)«
bench ; and in that c:ise it is treawn, beouM
of tbe nialice, not of the person, W toihi
law: so that there the ueason lay in tliis,Dot
tbnc tliey conspired barely against lljeir fd-
sons, but iviih reference to their proceediagi m
parliament ; and thereby to overthroa- the kh
of parliament, wbf rein these persons had Iwi
ptiucipol actors. But in tins again ihiydii-
agree; for in that case there was only acos-
spiracy; no death foliuned to ihe procsrcn oi
s i)ie
n ; all (bet was done was only tbii, Tloi
a warrant was directed to the lord nujotol
London, for apprehending theit penom to
bring them to Inal, which yet was nM dole
But here (arter the opinions delivered) jodf
ment was afterwards giv<^ by them in ^ie a-
chequer, and execuiion avtntdeJ lheteupiio,lbt
so much as concerns our pnipcrty.
And likewise in the liing's-Bench, "hert lU
judges after the Judcments in the Eicht^
ref^si»l lo hear any uture debate of the nuna;
and so for the liberty of our persons, b; ttp*
log divers of the sutyects in prison, tenn tfiT
term, tor not paying Ship-money, and otit
tilings depending upon those opmitrfi!, '^
tlicy liad been brought before them npon llie»
Habeas Corpus. In tliat of Rich, S, it •ss^t
overlhrooing but cue act of parhomtut, ■'^'^
was likewise iiitroductiveofane" law; !orlk
fi-om tl:e commffo 1»":
for in
gntyry
had only the strength of tl« partiameat W »T
port it, which was guilicieot; it was for tta
coiiinmn good. But here the endovour «w
at once, i.ot to blow up one act of parkuw^
but all; and these not introductine, tulW-
ciaralory of ilie common law; as»«sd:eF»'
tion of Iliaht, tlie statutes there meouonrt
aod-the resuluiiona. That of Rich. S, •« »
the blowiiiK up of the upper deck; this of W
common law, and the statutes too. sad dieo"
foundations, and tbe structures buifl upon tt<Or
all together. In that of Hich.a, it """J
to ovettbravr ■ ceiuponrji act of ptttiu>i*i
13$1] STATE TOIALS, IS Ouables I. }63^^ilt the Case t^Si^Man^. t^^^
■od the JudgM heard no more ortbc butinew.*
— I'heee Judges linve luul cxHntples ol' both
kind* before tlieni ; they might have cboeco the
fflvd, Hiid rurnsed llie batt.
My Lord*, beiides these judgments nnil 0|m-
nioni, the-couiition* will in due time ijtiag up
theujudges witli tlieirodier jud^EDents, ' cor-
' para cum CBUsii;' fur your lordships wiUeatilj
ctmceiTE, that tbaj who haie done this, havo
done more : the prijicipal of tliem, I mean mf
Lord Keeper, standi accused before yoai lord-
ships of High 1 rcMon ; ho is not here: Justice
goes ' pede lento, ltd ctno ;' it will overtake
Lioi Ht tlie lut.
The neit step that is making afier him an
the Articles of his Impeaclimeni, which, with
jour lordship's paiicuce, ore now ready to be
opened and delivered to jour lardiLips.
Mr. Htdff spake aflenvacds iu.llie folloning
My Lords ; There cuinot be a greater En-
hance of a Nck and languishing couinouivealth
than the busineMnfthiBday. GoodGod! how
have the guiltir theee late jean been punithed,
vhen the Judges themselvea have been such
delioquents ! 'Til no marvel that an irregular,
extravagant, arbitrary power, like a birreat, hath
broke ia iwoq us, when our banks and our bul-
warks, the laws, were in the custody of such pei^
sons. Men who had lost tJieir innocence could
not preserve their courage ; nor cooid we look
that they who had so vitibly undooe us tbem-
selves, tbould have the virtue or credit to res-
cue us from the opprewioo of other men. It
was said b; one who alwnjs spoke excellentiy,
that the tneke Judges were like the twelve
lions under the throne ofSolomou; ' Under the
' throne in obedience, but yet lions.' Your
lordships shall this day hear of sii, who (be they
what thej nil! be else) were no lions, who upon
that was to contiaae no looier than one year;
but this, to make an etern^ devastationi for
fletia qvoiiaj to llie world's end, as liis ma-
jesty or his successors stiaU sa^ [hat ttie king-
dom is in dai^r, rany tbne opinions be put in
Biecution i .and likewise they areenrollfd in
•II the courts of Wettntinstei-Uall, ' in perpe-
' This sin against the Holy Ghost is (hetefore
UDptudonable, because it takes from the party
repeotiuice, the maans of pardon. To put us
iberefbre into a case of desperation, tome of
tbem have publicly, and upon the bench, de-
clared. That tliis prerogiitive is so inherent io
the crown, a:s tlet it caooot be taken away by
act of parhament.— As they have put an iua-
puHihiliiy upon themielvei, so would they put
Ml iiBpossibiUty upon his tnajeUy, your lord-
ahips, and the wfaole parliament, for eviT rigbt-
»% us again.
Slj lords, ' coniraria juxia se pMita magis
' elucesciint.' I bnvc presented your lordships,
with the obliquity of liie ill Judges in Rich. S't
time : give me leave to present your lordships
with ooe example r^ a contrary nature; and
that was iu queen Elizajieth's tiae iu the 29ib
jeer of her majesty's reign : She erects a new
oftce in the Cosimon-Pleas, for the makit^ of
Supersedeas in exigents that isuied there; fix
grauu it to Rich^J CavendisJi, her servant,
■eodsto have him admitted: but (he judges
dclny the doing of it, far tlus reason, because
the protho notaries and philszers claimed the
making of those wrila. The ooeen sends a
aharp letter, and oonunaads them forthwith
to Hdmit him ; yet the judges forbear. The
queen sends a sharper letter, cununiuHling them
to shew the rcasuas of their contenqtt and dis~
obedience to the then Lord Keeper and the
carl of Leicester, no mean men in those days :
the judges deliver their reasons why they had
refused, that it na* liecause others ^med i^
making of ibose writs. — The queen sends a
founh peremptory message for (iieir adnutting
liim, with this ceasoa. That if the aihen
were put out, they were rich and able men ;
aod that her courts of justice were open,
where they might demand their r^ts. —
This was not to take away the right, but to
Etit tbem to their actios. — The Judges hum-
If returned this Answer, That the queen hod
tacen her oath for the execution of justice ac-
- cording to the law; that they did not doubt,
but that when ber majesty was informed that it
was asakiit law, she would dii what befitted
her : for tbeir parts, they hnd taken an oath to
God, to her, and the commonwealth; and if
they should do it without process of law before
theie, and only upon her command put the other
out of possetiion, though the right remained to
them.itwereabreachoftbeiroaths; aodthere'
fore if the fear of God were not sufhcieot, they
told her the punishment that was iniicted opon
.their predeceeors for breach of their oaths, (cit-
ing these of Thorpe in Hich. S.'s Ittoe) that
thi^ might be sufficient warning to them. The
quoM heariog of thmr isamu mi wtitfied;
VOL. III.
in a tnme easy traAce of flattery and servitude,
lost and forfeited (shamefoUy forfeited) that re-
puiatiun, awe, and reverence, which (he wis*
dom, courage, and gravity of their venerable
predecessors had contracted and fastened to
the pbiccs they now hold; and even rendered
that study and profession, which in all agas hatli
been, and J hope now shall be, of an honourabls
estimation, so contemptible and vile, that had
not thisbleBud day come, all men would have
bad that quarrel to the law itself, which 'Mar-
cius had to the Greek tODgoe ; who tbou^t it
a mockery to learn that language, the masters
whereof lived in bdndege under others. And I
appeal to these unhappy gentlemen ihemselves,
«ith what a strange aegli§;ence, scorn, and in-
dignation, the facet of all men, even of the
meanest, hare been directed toward* them,
* This remains under the hand ofAiidersoB,
theLordChief Justice, in bis Reports, vol. 1, p.
153—158.
t Afterwards Earl of ChtiCiMlOD, and Ll»d
ChnnceUor of England.
*N
, CiOO^^Ic
1383] STATE TRIALS, 13 Ch. I. 1537.-
aince (to nit it no none) thnt faCal declension
of their undents n dings, in those judgmeni* of
which thtj stand here cliiuf^ed before yoar lord-
ships.— But, my lords, the tviirk of [hit dtij ii
the grenlest inaiance of a growing and thriving
coinmonweiiltb too; nnd is as the danrniDg of a
fnir and lasting da; of liappiness to this liing-
It is in jour lordships power (and I am sure
it is in juur lordships will) to restore the de-
jected broken people of this island In their fot^
nter joy and secutity, the successor* of these
mm tri their own pntilege and venenition ; ' Et
' stpultas prope leges revocare.' — So these
Judges enter them selves, and harden tlieir
hearts by more particular trespasses upon the
laiT ; by imposiliong and toxes upon the mer-
chants in trade ; bTburdeDsandpreisuresupon
the gentrj' in knighthood ; befiire ihey cuuld
arrive at ihal universal destruction of the king
by Ship-Money, which promised reward and se-
curity for all their fonner services, bv doing the
work of n pariiament to his majesty in supplies;
and seemed to delude justice, in leaving none
ta judge them, by making the wliote kingdom
party to their oppression. — My lords, the com-
mnns assembled in patliiimenC hope that your
lordships will call these Judges speedily before
310U loanswertheseArticleshid to their charge,
that the nation may he satisfied in your lord-
ship's justice upon ihem, as iheircrimes demerit.
llten Mr. Pierpolnt delivered in the follow-
ing Articles agninst sir Robert Berkley, one of
the Justices of the KingVBencIi :
AkTICLES of lui-ElCHMENT of Sir RoBEnT
Bebelet, knt. one of the Jiistices of the
• CDurtofKin^VBencb.by the Commons in
this present Parliament assembled, in their
owu name, and in tlie name af all ihe Com-
mons of England, in maintenance of thejr
Accusation, whereby he staudelh charged
wjih High Treason, nod oilier great Mis-
demeanours.
Imprimis, That the said sir Eobert Berkley,
ihen beingoneoflbe justices of the Said court
of King's-Beach, hath traitorously and wicked-
ly endeavoure<l to subvert the fijndamental laws
and estubUshed government of the realm of
England ; and instead thereof, tu introduce an
arbitrory and tyrannical goiernment agaimt
law, which he hath declared by traitorous and
wicked words, opinions, judgment), practices,
tmd aclious appenring in the several Articles eu-
a. Wherens by the statute made in the SStb
year of the reign of Henry 3, prices of victuals
ore appoinled to be rated in such uiaimer, as in
the said statute is declared ; but it is manireit
by the laid statute. Corn is none of the victual*
thereby in tendL-d ; neverlhplessBome ill-affecled
persons endeavouring tn brine a charge upon
the subjects contrary to law, did surmise, that
the prices of Corn might be rated, and set ao-
conling to ibe direction of that statute; and
thereupon great gain night b« raited tohianta-
■TlieKinga»amiJiMHaarpdai,a^. [IJsl
jesty by licences and ditpensations foritllii^
Corn at other prices : and a command fmn ha
majesty bein^ procured to the Judges, and •an
to them by William Noy, esq. Iris Diajat]'i
then Attorney General, to deliver ihdr Op-
nions touching the question. Whether Cam ni
SDch victuals as was inleadtd to have itie pna
rated wiibin the said statute: In ans*er to
which, ihe said sir Kobert Berkley then beiii{
one of his maiesty's justice* of the court of
KingVBencb, in liirtlierance of the saidunlsih
ful charge endeavoured to be imposed u libn-
said, the 30th dny of November, m tbeSihw
of his now majesty's reign, did deUverhisOpi-
nion, That Corn was such victual a*w<uinind-
ed to have the price rated within the said ilt-
lute; which said Opinion was couirary u bv,
and to the plain »ense and mcnning of the sud
statute, and contrary to his own knowledge, and
was ^iven and delivered by him, with a purpon
and intention that the said unlnnfol daijs
mi^ht he imposed upon the subject.
3. That an inlbrmalion being prefenedit
the court of Star-Cb amber by the uid WilB™
Noy, his majesty's then Attomey-Oenui^
against John Overman, and fifteen othersMp-
makers, defendants, charging them with terml
pretended ofl'ences, contrary to divers iMKit
patents and proclamations touching the inatiD|
and uttering Soap and using the trade of sotp-
maters, and other oSences in tlie said infunm-
lion mentioned; whereunio the delenritna dil
plead, and demur as to pnrt, and ansvir U
other part* of tlie said information; and >hi
said plea and demurrer beioK over-mled, bt
that the particulars therein insisted upon tioiM
appear more full after answer and proof; tlKr>
fore the defendants were ordered to imvw
without prejudice, and were to be admitted to
such exceptions 10 the said inroniiations,nl
advantages of the matter of the plea and lit-
mtirrer upon the hearing ns shall be miterial;
and accordingly the defendants did put in their
Answers, and set forth several acts of parJi"-
menr, letters patents, charters, cutteras, ■■
acts of common- council of tlie city oflWoa.
and other matters materially conduciiw to lleic
defence; and, in concluiion, pleaded NN Guil-
ty. The said sir Robert Berkley then htin
oneofthejuslicesofthe court of King's-Otacb,
upon the 30th day of Mnrch, in the eighth jfw
ofhis majesty's reign, upon an order of rt«-
rence to him and others, by ihe said euititi"
SlHT-Chamber, to consider of the iii>p«rtiiiel»?
of the said Answers, did certify the saiilc<»A
of Star-Cbamber, That the whole Answen,^-
cepting the foor word* nod ten last lines,slii>»
be eipunged j leaving thereby bo more si^
stance of (he said Answers than the pin «
Not Guilty. And after, upon a reference »
bira and others, by order of the said conn,rf
the impertinencj of the Inierrogatnrtw. »"
Depontions of witnesses taken on the drfto-
dants part in the same case, sir Robert Be^i
upon the second day ofMay, in the einbthyW
of hi* now majcity'* rei|n, certified, Tbat iid^
and-tbiny of the md ZaHrragUorie*) aad t^*
I3SJ] STATETKULS, ISCbaiusI.
DepoHiioDs upon them taken, should be sap-
pressed, with the Answers, except as aforssaid,
Uid Depositioas; alibougli the sarae did con-
tain the said dcfeailHuts most material defence,
yet were thejr expunged and iuppretsed, ac-
cording to the (aid certificates ; both which said
cerlificates were contrary to la<r and justice,
mid contrary to his ilie said Robert Berkley's
own knowiedge, and contrary to the said former
order, whereby the ailvanla^ies were gaied to
the defendants, as aforesaid : and by reason
thereof the said John Overinaji and iLe said
other Gfieen defendants nere sentenced in the
Mid court of Star-Chamber to be committed
prisoners to the Fleet, and disabled from using
tlieir trade of soap-makers; and one of them
fined in iSOOL, two of tliein in 1000/. a-piece,
four of iliem in lOOO marks a-piece; whidi
fines were estreated into the Eicliequer wiiliout
any mitigation ; and tbe said deleii(lanls, ac-
cording to the said Sentence, were imprisoned,
and deprived of then; irnde and liTeliliood,
tendii^ to the utter ruin of the said defendants,
and to the overthrow of free trade, and conv
trary to the liberty of llie subject.
4. That hu tbe said sir Roliett Berkley^ then
being otie uf the justices of the King'i-Bencb,
and having taken an oath for the due aiimini-
Mraiion ot justice, nccoidinv to ihc laws an4
statutes of this renhn, to bis majesty's lief;e
'people, on or about tbe last of December sub-
scribed an Opinion, in htc verba : ' I am of
' opinion, that as where the benefit dolh more
particularly redound to the good of the ports
or maritime parts, (as in case of piracy or de-
Cdations upon the seas) there the chatge hath
o, Dud may be lawfully imposed upon them,
according to precedents of former times; so
where the sarety and good of tbe kingdiim in
general is concerned, and tbe whale kingdom
la danger, (of whicti his majesty is the only
jadee) there tbe charge of the detenceougbt to
tie borne hv all tbe realm in general: this 1
hold flgreeaole both to law and reason,'
5. That be the Biiid sir Kobert Berkley, then
beiqgoue of tlie justices of the court of lUng's-
Beocb, and dul; sworn as aforesaid, in Feb.
1C36 subscribed an eitra-j udici.il Opinion, in
answer to Questions in a letter from his ma-
jnty, in tjcc verlia ;
\C.R. When the good and safety of the
' kingdom in general is concerned, and tbe
' whole kingdom in danger; whether may not
' the king, by writ under the great seal of Eng-
' land, command all the subjectaof this kingdom
' at their charge to proiioe and furoisli such
' number of s)]ipi with men, victuals and inuiii-
< tion, and for such time as he shnll think fit,
' for the defence and safeguard of the kingduai
' from such danger and peril p aad by law com-
' pel the doing thereof m case of refusal or le-
< iraciorinest } And whether in such case, is
' not the king sole judge both of the danger,
' and when and bow tbe same is to be pre* ent-
' ed and avoided?' C. ii.
' May it pleaie yotir roost excellent ma-
'Jeity, ire bare, Bccofding lo joat niajetty't
)atheCax<f Sliip-IUoay. [13%
' command, teverally every man by himself,
' and all of us together, taken into serious
' considemtion the case and cjuestion figned bj
' your majesty, and inclosed in your roynl let-
' ter ; and we are of opinion, that when ilie
' good and safety of the kingdom in general is
' concerned, and the whole kingdom ludanger,
' your majesty may, by writ under the great
' seal of England, command all your subjects
' ofthis your kingdom, at their charge topruvida
' and fiimish such number of ships with men,
' victuals, and munition, and for such time ax
' your majesty shall tfiink fit for the defence and
• safeguard of the kingdom from such danger
' and peri! ; and that by law your majesty majr
' compel the doing tliereof in case of refusal
* anil refractoriness: and we are also of opi-
' Dion, that in such case your majesty is the sole
'judge, both of danger, and uhen luid how the
' snme is to be prevented and avoided. John
' Bramslim, John Finch, Humphry Dnvenporl,.
'John Denbam, UicliarU llutton, Williani
' Jones, George Crooke, Thomas Trevor,
' Georae Vernon, Itoberl Berkley, Francis
' Crawley, Richard Wejton,'
G. That lie the said sir Kobert Berklev, then
beingoneof the justices of the court of King's-
Bench, and duly suorn as aforc^iil, did on the
deliver his opinion in the Eiche^uer-
i, upon the matter and subitanccoftba
cose, was cliargeable with the mooey then in
question; a copy of which pniceeJing and judg-
ment the commons of this present parliament
havedelivercd to your lordships.
r. That he the said sir Robert Berkley, then
being one of tlie justices of tbe court of XingV
Bench, and one of tbe justices of Assize for the
county of York, did, at the assizes held at York
in Lfut 1636, deliver his charge to the graud-
jury, * That it was a lawful and inseparable
' flower of tbe crown fur tbe king to cummaiid,
' not only the maritime counties, but also lliose
' that were inland, to find ships for the defence
■ of the kingdom.' ' And then likewise falsl^
and mnliaiously affirmed, That it was not his
single Judgment, but the Judgment of all hit
brethren, witnessed by their subscriptionsl
And then also said. That there was a rnmour,
that some of his brethren that bad subscribed
were ofa contrary judunent; but it was a bass
and unworthy thuig, U)r any to give his hand
contrary to his heart; and then wislted for hi*
awn part, that his hand might rot from his
arm, that was guilty of any such crime ; when
as be knew that Mr. Justice llutton and lUr.
Justice Crooke, who had subscribed, were of a
contrary opinion, and was present when they
were penuaded to subscribe ; end did subscribe
for conformity, only because the major Dumber
of thejudges bad subscribed. Andhe tbesaid
sir Robett Berkley then also said. That in sotne
cases tbe Judges were above an act of parlia-
ment; which said false malicious words wcra
uttered, as aforesaid, with inteut and purpose
to counUDaiKS aud mainlaia iheaaid unjust
128T] STATE TRIALS, iSCn.I. Ifl37.-
opinions, and lo tenifj his majntj's tubjecti
that should refosc to pa; Ship-Stontv, or serk
na; remedr by law against tbe said unjust and
illegal taxarioa.
8, TliBt whereas Ricbard Chambers mer-
diant, having commenced a suit for trespass,
and false imprisonment, a|;ainst airEtlir. Broiu-
field kat. for imprisoning him the siiiil Cham-
ben For rerusinc to paj Ship-Money, in the
time that the said sir G. Bnimlield was lord
major of llie city of London ; in whicii suit
tiia said sir E. Bromtield did make a spcf ialjtis-
tilication: the said sir K. Berkler, then being
one of thejustices oflhe court oF King's- bench,
in Trinity term Jnst, tijen silting nn ihe Sench
in tlie said cnort, upon deliate of the said case
between the said Chambera and sir £. Drom-
field, said openlj in the court, ' 'J'hat there
* was a rule of luw, find a rule of );oiemment ;'
and that ' many things ivhich lui^^it not be
' done hy tbe role of law, might he done by
* the rule of goiemmcnt :' and would notsuftei-
ns, declarations, words, and speechi
tained io the SH, 4tli, 5th, Cth, 7th and 8th,
articles, are destructire to the fundamental
JaiYi of tliis rciilni, the subjects rijlit of pro-
perty, and contrary to former rcsnlulions in
pnrliantent, and to [be Petition of Right; ivbicb
resolution in parlinment, and Petition of Higlit,
i*ere well known to him, and [(.'solved and en-
acted when be was the kind's seijennt at law,
and Dttendnnt in tbe lords house of parlia-
ment.
9. That the said sir R. Berkley, then being
one of the Judges of the court of KingV bench,
and being in commission of the peace, and
duly sworn to eiecute the oflice of a justice of
the pence in the cou'Bty of Hertfi>rd, on or
about the 7th of January 1633, at ivhicb time
the genernl sessions of tbe peace (or the said
county were there bolden ; die said sir R.
Berkley, then and there sitting on the bench,
did revile and threaten thcgrand-jury returned
to serve at the said sessions, for ureseniing
the reinovn) of the communion-tntife in Atl-
Snints Church in Hertford aforesaid, out of the
place where it anciently and usaally stood, and
setting it altnr-vays, agoinst tlie laws of this
renlm in tlwt ctise made and provided, as an
innovntion in matters concerning the church;
the said grand-jory havina delivered to them in
Chni^ at the said sessions, by Air. Serj.
Atkins, a jastice of tbe peace -for the said
county of Hertford, that by the oath they had
taken, they were bound to present all inno-
vations concenting church -matters. And he
the said sir Robert Berkley compelled the
foreman of the jury to tell faim who gave him
any such information; nod thereby knowing it
to be one Henry tiroKn, one of the said grand-
jury, he asked the snid Brown, how he durst
mraldle n>ilh church-matters f Who affirming,
thiit in the said charaie from Mr. scijeant
Atkins the said jury was charged so to do, he
tbe laid ur Robert Berkley told the >aid
Brown, he Bbould tbercfof« find Miretin for his
fjood bebavioat ; and that be tbe said sir R.
Berkley would set a greet Ane dd his bewl, to
make bim an exampletoothers : and ibsreopon
tbe said Brown offered su&cient bail ; bat he
the said sir K. Berkley being incensed s^inst
him, refused the said bail, and oraimittrd tbe
said Brown lo prison, where be lay in irom
till tbe neit momii^ ; and used to tbe said
Brown, and the rest of the jurors, many other
reviling and tettifyio^ speeches; and said, be
knew no low for the said presentment ; and
told the said Brown, that be had smited in tfaa
Baiit presentment : and he compelled tbe said
grand-jururs lo say, they were sorry for whit
they had done in that presentment, and did
bid them to trample the said prcsesitment Qoder
their fi>et ; and caased lirown to tear the said
STSeiitment in bis s'ght. And he tbe laid sir
. Berkley, when as John Haolajid atid R;dpb
Pemberton, late mayors of St. Albans, cams
to desire bis opinion on several indictments
against John Brown, parson of St. Atbans, and
Anthony Smith, vicar of St. Peter's in St.
Albans, at the quarter-sessions held at tbe
said town of St. Albans, on the 94tb of
June 1639, for the removal of the CoohIiudWid
Table out of the usual place, and not adminiv
tering the Sacrament according to lasv intbat
case provided ; he tbesaid sir R. Berkley then
told them, that sacb an indictment was befere
him at Hertford, and that be qnaabed tbe aatne,
and imprisoned tlie promoters : by vfaidl
threatenmg and reviling speeches, unjnst ac-
tions aod tleclarations, he so lerHliedthe jaroti
in those parts, that they dant not prejtut any
innovations in church-matters, to their great
grief, and trouble uf their consciences.
And whereas several indictments wer« pre-
ferred Bgainst Matthew Brook, parson of Yar-
mouth, by John lagram and John Carter, far
refusing several times to administer ibe Sscr*-
menl of the Lord's Supper to them withoot aay
lawful cause, at the assizes hetd at Norwicb in
the yenr 1633; be the said sir R. Berkley,
then being one of the judges of the assize, pti>-
ceeded then to the trial on the said iodict-
inenti ; wbrre tbe matter ia issne being, tbac
tbe said Bnjok refosed to administer the mid
Sacrament, because tbe said Ingram and Carter,
would not receive tickets with their sip-namei
before their Christian-names; which was a
course neve^ used umongst them, bcU. by tbe
said Brook : and the said sir R. BeiUe; did
then miicb discourage the said Ingram's couo-
sd, and over-rnle tbe cause for matter of law,
!io as the jury never went from the bar, bat
there found for the said Brook ; and tbe said
(ir R. Berkley bound the said Ingram to the
good bebavionr for tbe prosecnting the said
indictmettts, and ordered bim to pay costs to
the said Brook for wrongforiy indicting fain.
And whereas the said Carter, not expectingtbe
tritll at ibe same aasiies be preferred his in-
dictment, was then absent ; whereapon tbe
said sir R. Berkley did cause to be enteted
upon thesaid indictnent ■ Vacat, ' tjam not
I lege,' and oniRicd an attach-
ment egaioRC the said Carter : wbicb said pn>-
ceediugj against the uid Ingram and Carter,
bj the said lir R. Berkiej, were (wntrH/j to
Uw aud jiutice, and to hii «wn knonied^.
10. That the lald lir B. Berkleji being one
of the jusUMS of the court of King's- bench,
and dulj iwum as aforeiaid, in Triuitj Term
163T,.dererred to discbarge or bail Alexander
Jennings prisoner in ibe Fleet, (brought bj
Habeas Corpui to the bar of the Mid court ;
the return of bis cominitmcat being, that he
•rat coimnilted bj two several nairants from
tbe lords of the council, dated the Sth of Nor
Tcmber 1G36, the lirst being only read in court,
D canae ; the other, for not pajin^
i3&9] STATETftlALS, ii CitAna I. ISyj.— in lit CoKt^SUp-MoMf. [12^
' denoui ia their aeveral and respective codd-
' lies, tberetobe conducted anddrawn together
' into a bodj for thissarrice. And whereat his
' majestj, according to the laws and statutes of
■ this realm, and tbe constant custom of his pre-
' decnson kingsnnd queens of this realm, hatk
' poxer for the defence of this kingdom and re-
' silting the force of the enemies thereof, to
' grant tbrih cofnmissiiins under his grent aeal
' to sDch fit persons HS he shall make cluiice of,
' to arraj and arm the sntgects of this kingdom,
' and to compel those who are of able bodies
' and able eetates, to arm theiii9el>es ; and
* sach as should not be of able bodies, but of
' ability in estate, Co assess them according to
' their estates to contribute towards the charge
' of arraying others, being able of body and not
' able in estate to arm themieUes; and snch
' persons as should be contrarient to commit
' 10 prison, there to remain until the king ihoold
' take further order therein: And whereu tiie
' eari of Eieter, by virtue of his in>jeit;r'> eom-
' mission to him directed for the arraying and
* arming of a certain number of persons in tlie
' county of North a Upton, hath nssessed William
' Pargiter, beinga man unlit of body Tor thai ser'
■ vice, but being of estate and ability to ciintri-
' bote amongst others to pay the sum of it. to*
' wards the armyiogandarmingofotliers of able
' bodies, and wanting ability to array and arm
' ihemsehres: And whereas we have received
' iiiformHtion from the said earl, that the said
' Willism Porgiter hnth not only in a wilRil di»-
' obedient manner refused to pay ihesaid monej
' assessed upon him towards so important «
' service, to tbe disturbance and hindrance of
' the necessary defence of this kingdom ; bat
' also by his ill example hath mi^ed many
' others; and, as wehnve ju»t cmftc to believe,
'hnth practised to , seduce others from tliat
' ready obedience which tbey owe, aud Kould
' otherwise have yielded to his mnjcsty's just
' command for the public defence of hit person
' and kingdom, which we purpose with all cnn-
' venient speed to enquire further of and eia-
' mine: lliese arc therefore to will and require
' you to cake into ynur custody the persons of
' the said William Pargiler and Samuel Daiv-
' vers, and them safely to keep prisuneie liM
' forther order from this board, or until by doe
' course of hiw they shall be delivered.'
Yet ha (be said sir R. Berkley being desired
to bail the s«id Pargirer anil Dniiver^ remitted
them, whei-e they remained prisoners till the <)tli
orNovember last, ortherenboats ; ah hough the
said Jennings, Pat^iter andDanvcrs, on all and
every the said returns, were clearly bailable bj
law; and the counsel of the said Jenninj's,
Pargiter and Danvers, offered in court veiy suf-
ficient bail. And he the said sir R. Berkley,
being one of the justices of the court of Kings-
Bench, denied to grant hit mniestj's writs of
Habeas Corpus to vei-y many others bis majes-
ty's subjects ; and nhen be hod gr.-inttd the
said writs of Habeas Corpus to tery many
olhere his majesty's subjects, and on the re-
turn no cause tkMpeared, or such only as was
AcUe that he had paid his tusesstnent for Ship-
Money in the county of Bucks, hot remitted
him. And in Michaebnaa term after, tbe said
.Tennings 'being brought by another Habeas
Corpus before him as afbrmid, and the same
returned ; vet he, the said sit R. Berkley, re-
fused to (JischaT^e or bail him, but remitted
him. And in Easter-term, after several rules
were given for his majesty's counsel to shew
onuse why tbe said Jennings should nut be
bailed, a fouith rule was made for the said
Jennings to let his m^esty'a attorney-general
have notice thereof, and netice was given ac-
cordingly ; and the said Jennings by another
Habeas Corpus being brought to the bar in
Trinitn' term after, and tbe same return mode,
with this addition, of a new commitment of the
4<h of May, lugMtting the said Jennings had
used diveta scaudntoos words in derogation and
disparagement of- his majesty's government:
He the said Jennings after several rules, in the
end of the said Trinity terni,WBS again remitted
to prison. And he the saiil sir R. Berkley did,
en the Sth of June last, defer to grant his ma-
jesty's writs of Habeas Corpus for William Par-
giter and Samuel Daovcra esquires, prisoners in
theG&te-Hoirse, and in tho Fleet; and afterwards
having eranted the said writ of Habeas Corpus,
the said Pargiter atkd Danvers were on the 18th
of June last brought to ihe bar of the said court,
whare ilie returns of their commitments were
aeventl warrants from the lords of Ac council
not expressing any cause : yet he the said sir
Robert Berkley, then sitting in tbe said court,
deterred to bail the said Pargiter nnd Danvers,
and the ]8lh of June last made .a rule for a
new return to be received, which was returoed
tbe 25th of June last in Aire tierba :
' Whereas his. majesty finding lliBt his anb-
' jeAs of Scotland have in rebellious and hostile
* manner assembled themselves together, and
' intend not only to shake off ibcir obedience
' unto his majesty, but also as enemies to in-
' vade and infest this his kingdom of England,
* to the danger of hb royal person^ &c.
' For prevention whereof his majesty hnth hy
* the advice of his council-board, given special
* commandment to all the Lord-Lieutenants
* of tbecouDtiesof this reulm, to as^mhle zbe
* militia at tbe placet appointed for their ten-
1391] ffrkTETSljaS, liCa:L l6i'J^nelSiigag»MlJiARHaapdai,etq. H^SS
At tbe preseniiog dtese Arddes, Mr. I^-
point delivered hinuelf as foUowB :
KIt lordi ; I am cammanded to presFnt •jaat
lordships these Articles, with which the knij^Rs,
citizens, end burgesses of the Commons boaft
of parliament, in their own name and id titc
anaie of all the coramoru of England, hnpcscfa
sirR. Berkley, kt. onenfthejuiticesof Iu*i««-
jesty's court of King'a-Bench, in Tnaiatrmncc
of their Accusation of High-Treason, and other
great misdemeanon ; the Articles tbey desire
may be read .
Whereupon the Articles were read bj Mr.
Francis Newport, a member of tbe bouse of
clearly bailfil by law; yet be remtoded theai,
where they remained prisoners very long :
which said deferring to grant the said writs of
UabcBb Corpus, and reliuals and delays to dii-
charge prisoners, or to guffer them to be bailed,
contained in ibis article, are destructive to the
fundamentHl laws of this realm, and contrary
to former resolutioDS in poiliament, and to the
Petition of Right ; which s:ud resolutions end
Petition of Right were well known to him the
■aid sir R. Berkley, and were resolved on and
enacted when he was the king's wirjeant at law,
tad alrendani in the lords house at parliament.
It. That whereas there aqs a cause depend-
ing in the Coort-Christion at Norwich, between
Samuel Booty clerk and Collard for 2i. in the
pound, for tithes for rents imd houses in Nor-
wich, and Che said Collard moved by hii comi-
■el in the court of King's-Bench for a prohibi-
tion to stay proceedings in the Court-CiiristiaD
at Norwich, and delivered into the said court
of Kiog's-Bench his suggestions, that the said
cause ill the said Court-Christian Has only for
tithes for rents of houses in Norwich, which
was determinable by the common-law only ;
yet he the said sir H. Berkley, being one of the
justices of tbe said court of King's- Be ncli, and
sitting in tbe said court, deferred to grant a pro-
hibition to the said Coutt-Chrislion in the said
cause, although the counsel did move in the
■aid cnurl many several times, and several
terms, for a prohibition. And he the said ^r
E. Berkley deferred to grant his majesty's writ
of prohibiiion to several otlier -- -■■ -
IS of d
jects, where the same by
ought to have been granted, contrary to the
laws of this resUa and his own knowledge.
All which words, opinions, and actions, were
so spoken anil done by him the said sir R.
Berkley traitorously and wickedly, to aiienBle
tbe benrts of his majesty's liege people from his
mujesty, and to set n division betwiit them,
and to subvert the fundamental laws and es-
tahlisbcd government of his majesty's realm of
England : For which they do impeach him tbe
■aid sir R. Berkley, one of tbe Justices of tbe
court of King's-Bench, of Iligli-Trenson against
our sovereign lord the king, his crown and dig-
nity, and ol the misdemeanors above-mention-
ed.— And the said Commons by protestation,
taring to themselves only the liberty of eihibit-
ing at any time hereafter any other Accusation
or ImpeacUmeut against the said sir R. Berk-
ley, and alsouf leplying to the Answer that he
the qaid sir R. Berkley shall make to the said
Articles, 'ir auy of them, or of offering proof of
the premises, or any other Impeachinenta
Accusations that shall be exhibited by tfat
as the case shall, Recording to llie coune of
parliaments, rcqifire ; do pray that the said lir
R. Berkley, one of the justices of the court of
King's-Bench, may be put to answer to all and
evtry the premises ; and that such proceedings,
examinations, trials, judgments and executions
may be upon every of tliem bad and used, as is
agreeable to Uw aad justice.
Then Mr. Pitrpoinl proceeded and said.
The bigb-treeson is in the lirtt article, in bis
endeavours to subvert tbe fundamental laws of
this realm, and to introduce an arbitnvr wid
tyrannical goveram^t, which hath been LitcJy
adjudged treason in the cause of tbe earl ol
Strafford. The othar article* prove tbe first by
bis opinions, certificates, judgments, by his dts
uiali of the benefit of uur laws, which bate
been read by your lordships. No Eiindamcmal
law to the sut^ects is left; our goods, ovr
lands, our bodies, tbe peace of a good coo-
science, are by him given up to arbitrary tjna-
□ical eovernment. Nothing hath been otoilted
been SO years there ; honours and i
are viven to judges, encouragement to do well;
this judge had these : judges are swoni accord-
ing to law to serve tbe king, and bis pfople;
accordine to law to counsel the king ; ana Ibr
not so (loing, to be at bis will for body, lands,
and goods. This judge took that oath ; the
laws (the judges study) impose tbe greater
punishment upon unjust jnoges ; they shew
that these punisbmeots have been inflicted, and
more could not be done to persuade or fiigbla
J"''??-
His oBences shew in him great ambition, yet
be was most timorous of displeasioE the peat
in pouer; be did nut only forbear doing what
lie was aworn to do, but was most active
against out taws, and in opposingaod piiniiluiig
any that did maintain them. To have ooly re-
ceived bribes, ^though tbey bliod tbe eyes, and
though tbe desire to get money increuetfa with
age) that heinous crime in a judge had beea,
in comparison with bis offencea, a tolciaUe
vice ; for from such a judge justice is also to be
had for money. Ambition is violent, and ruiu
whilst covetousnesi is making a bargain.
Tbe words of his Opinion tmd Judgment ar«
for the king's power. It is pleasing to the na-
ture of man, that others should obey his will;
and well-framed dispositioDi of princea may ea-
sily be persuaded their power is M"l'"i'tf^,
when tbey arc also put in miod, that iherefore
they hare more cause to do wdl. Mid for doing
1295] STATE TRIALS, 13 ChahimL 1(137— wife 0«e*/"SHp-Af(mg(. [HH
netl nre more TCDOwned : for in [be mnst op-
pressive designs, (which wc have siifTered under)
the prewocen of his majestj hive ever been the
EOiid of bis silbjectsj bis is the sin, that is to
judge by the Jnws, nnd knnns tbe laws are to
ibe contrary, yet pa ts an it con6nnstucbiboui;hts
in bij prince. He that incites aootber to arbi-
trary gaternment, nbeo bis telT-eiids are there-
by coiDpasaed, hates bin for tahin^ ibat power
he persuaded bim unto. The Writs, thOKe
moiisterg of necessit;, to pronde Ship* to avoid
imminent dnni;er, that could not stay 40 days
for the calling of a parliament, xere therefore
to gn out in lepteiober, to bare ships ready in
March. This hath been adjudged by your
lordships to be deslruclive to the fundamental
laws of this r«itm, and to the subjects right of
property and liberty, &c, that I shall say but
this conceming them ; that tbisjudge published
them to be inseparable flowers of the crown ;
and that we have lived tn see for five yean to-
gether imminent danger, and thus tn be pre-
Tbis judee did advise to such a government,
>s future kings here might exercise tbe highest
tyranny, and tbe subjects want the benefit of
restraints, known to the most slavish enstern
nations; where, it theirprtnce do unjustly, he
hath hatred for it, and the dangers that fallow
Ihat. Tbisjudge will bnve that hatred to go to
our.good laws : No such bondage, ai when the
taws of freedom are nii»-interpTeted by judges
to ninke men slaves, — What can be considered
of in a judj;e of law, to pve his opinion and
advice to bis prince, how the laws (tbe mutual
covenants of kin^s and subjects) are to be
broken, bat that his intention* are to have hi:
prince do ill, by making his evil servants to
study, and to be pleased with their wicked de-
■igtis ; because they sec means tn put them in
execution, by making them to perauade their.
prince, because in inuninent danger bis iuhjecta
goods are at his will, that there is such danger
wlien there is not, and that tbey haveonlysome
by-entU of their own ?
Tbisjudge will have tbe law to be what to
him seems reason : the reason limited to
him to judge of, is what the common law ssith
is so, what a statute hath so enacted. For him
to judge this or that is law, else a mischief shall
fouow, because tbe law in such a thing is im-
perfect, therelbre he will make a law to supply
It ; or because that the law written in suco
particulars is asninst his reason, therefoi* his
reasons lo be in<.v ; then must folloiv, as often as
a judge's reason cbaiigei, ur judEes change, oar
.Inws change also. Our liberties ate in our
laws, Vihich a subject may read, or bear read ;
this is his, this lie mny do nud be safe: and
chat thus thejud<:e ought to give judgment, and
then be is free. The excessive growth of courts
of reason and conscience canie from great and
«aaning persons ; and thougb not tbe moit
sudden, yet the must dangerous, and sure ways
t« eat out our laws, our liberties. Unlimited
jiower must be in some to make and repeal
laws, to lit the dispositions gf cimw and pet-
sons 1 Nature placeth this in common consent
only ; and where all cannot conveniently meet,
instructetb them to give their consents to some
they know or believe so well of, as to be bound
to what they i^reeon. Hismaje:iiy, your lord-
ships, niid the commons, ore thus met in parlin-
ment ; and so long as we are often reduced to
ibis main fbundauon, our king and we sbnU
prosper.
Tbisjudge will not allow us our knowledge,
or any reason ; he will have aur minds, uni
souls, slavrs. A grand-jury-mnr. gave his fel-
lows true iufurmaliiin ; they present an inno-
vation m church, are [breateoBd and reviled for
It; he that told this truth I: charged, I shall
use tliia judge's own words, to sin m that, and
that he made olbeis forswear tbemseives ; this
judge sent him to the commgn gao), where he
IS laid in irons; and all tbis, because be and
they durst meddle with church matters. He i*
forced to tear ihe prcsenimenl in pieces in open
court. Our laws provide fur the peace of our
consciences, many acts of parliament are for
it, and the trust by those acts set to jurie!^ :
this judge well knew all this: your lordshipa
have heard what be did to the Jury at Hert^
ford; he lyould have us know no more divinity
than to obey what the chief of the clei^ di-
rected, no more law than what he said was so.
Judges in fomer limes, except only such as
were em m pics of punishment, as ofiujuslic*
neceuitaled tbe calling of parlinments. This
judge had as many sueh causes before him, as
ever any had ; yet be never desired the resolu-
tion of parliament in any one; for the wnyshe
went, tlie necessity was never to have a parlia-
ment; he would pull up that root of oursafeties
and liberties, which whilst ye enjoy, tbe malice
aad injustice ofall other courts and pertonscaii
never ruin ; and when near to ruin, (as most
near of late) this only sure remedy will help us;
nothing can ruin a parliament, but itself, llie
evils which v/e have suffered under, they were
committed by the judges : Or by tbem ought to'
have been, and might have been prevented.
Tbisjudge nested in causing the miseries
we soSerea in the Star-Cbamber, and at the
council-table : he denied the known rights,
which he ought to liave granted us, to stop our
grievances in the ecclesiastical courts : he was
the causer of our sufTeriiigs in other count.
The best lovers of their laws and liberties, Ihe
most honest, satFer must by an unjust, judgej
they most oppose bis vices ; dishonest persons
find such aji(dgeto fit their purposes; the judge
finds them for his ; the bond of iniquity cou^
derates tbem. He that will do no wrong, will
suffer none whic^i be can help : The man that
knows himself born free, will do his utmost to
live BO, and to l.eate freedom to his posterity c
were he in slavery, when by outward gesture
thought to be most delighted, were bis mind
tbeo known, there would be found vexation, and
hit busy thoughts employed to redeem himself
and bji poiteritjr fioia tbnUora. But to lay.
SMip^wilcn. nte couofyiuii f
hit ri^t
1295] STATE TRIALS, ISCh.I. 16i1.—71ie King ogauui Join Happdat.taq. [1S»
cooid thi« Judge intend to niitke biubelf and hn
oDiD posienCy elavei ? What liedidwas through
error of judgment only. No, my lords; wbut
bil aiins nnd endeavours were, it appiireiit. To
consider man in ihe general, ive shall find
cvra-y age be will be a slave to gome fev, tL
many may he ilnves at htm, he looks to himself
dily ; this lie would do. or forbear doinp, to be
great, to lie rich, hnd he children or kiadred,
or had be none. This higldy unjuttjudge, by
continuing sins, raaintoiued his actions to pre-
serve himself; he knons, to be fouad guilty in
une of his offences, the penalty of the law for
it, therefore covers tlic otTeacee committed irith
ioveuting and acting other. For a judge to be
unjust, more hum the public than an; other ;
he is not sotpected. What a judge dotb, is
looked on at a thing diat ought to be done.
The most pernicious great man, that by con-
ning hathgot to himtelf the heart and tongue
of ^<s prince, bis ill acti have died with luni,
if not taken up by others, and [hen ihej »alL
in darkness; no man will justify what herdoth,
by saying such n favourite did it : But the
uiijuu judgments of this judge were eiven
in noon-day, were done in *Jie face of the
whole kingdom, in the hearing ofsnch at might
carry the newt to all parts of tbe realm, uid
was therefore done ; his unjust judgments were
our records. We have seeiL,wicked great men
taoat craftily politic; tl>ey hated our law*, yet
not meeting with active judges moulded to their
purposes, tbey and their acts have died, ibe
TCaliu flourish^ ; but of late, others lets poli-
tic, meeting with most unjust judges, every vray
Bs ill as they could wish them to be, tbeb did
the kingdom faint, under tlie load of its misery
ilid long 8trugi;le : Now it is rising, I assure
myself your iurdships will assist to take off tjie
burden.
If the designs of some would not have such
a man to be at liberty, a warrant from some
lords of the council would soon have laid him
in prison, and given no cause; hod he movrd
this judge to be discharged or bailed, he could
have obtained neither. If dieir ways would
not have endur«d that man to live, ajadge re-
viling the priion^, and the counsel that moved
Joi- his discharge or bail, joined with the hate
of some great jaan, might toon have moved a
gaoler for unwholesome rooms and lodging,
and ill diet for his pritoner, and they may soon
4ake life away. 09endert in prisons ere Uoked
after to be safe only ; such as are brouj^ht in
by power against law, are abused, liad a
great man desired the estates of others, ibe
breach of a prochtmation niight readily have
been charged against them in Star-Cham ber ;
but they, it may be, could have aniwcred and
claared themsclres, and proved their answer
by testimonies : had tliey been referred lo this
judge, he would have eipunied the one, lup-
presaed the otber. Then followed fines lo [be
value of tbeir estates, or more; tben imprisoD-
tuent of course, till they paid *ucb fines; your
his thinking be was avared «f
lit n^t, property, and liberty, which gave
him ability to do it. He believed hi* neigb-
Imur, hi* landlord, liis Ling, coukl not take Ui
goods from him without his conseat. He knew
]e usual payments by law; and in'nttsordi-
nnrv oaoaes tliouglit to tiare that core to chut
such fer the knights of hii shire, or fpt his bar-
gesict, as ini^ ba mindAtl of tbe cause of
payment, and of his estate. This conntninaa
hath heard the opinions and judgment oc this
judge, hath teen bis goods taken fran bin
withnut his, or his kaigfata of the sjiiie, or bar-
C«s consent or advice. These have madt
, his wife and children, to joia in tean, to
wish they had never been bom; tbey faaf«
made them thiiit cai many wars to kieep s^
tint estate wtach was yet left them, ban iMdc
them denre to sdl all their goods, and hide tkc
□uney; but tbes he lemeaben this jmife,
hon UMt ha shall be cen-ied to prison, and wtr
main there, if he pay not what it pleases othets
to assess him. llien the* think idle fenoia
(the drones and moths of the commonwealth)
to be a wise people, whilit the count rymen ex-
pect, and oan think of nothing but beta^ b^
gan. Where public nnd enonnous oSatos
have been committed, eminent and notorioa
Cinishments must be : such will makr ymt
rdthips proccedingc highly esteemed; rhe
there will be so many oSenders, aad pone
without danger can be punished.
Thia judge subverting our laws, took away
the hearts of many; he sabsotibes Ibr tltt
king'* powoT, but ao as he put lum on taking
his anbjects goods; andof aU other, surfa was*
he most dangerous : for we know his mnjcsiy
is not the last that saSert, and Is not tbe kii^
worth mnny thousands i The place of this
judge was to have given and preservctl to tbe
king the hearts of bis subjects; the due caeca-
tion of the laws had dose this; and when such
notice is taken of a prince, none will connme
against him, who cannot feign to tbema^vc)
safety before or after any fact committed ; fo-
reign enemies will not invade hra kingdoms.
Thus hadi liis majesty nowoot our beaits, and
will fbr ever hare them. Tlus judge is lo an-
swer for what his majesty, and for wbat we
have suffered.
I am Himmnnded by the house of commms
to desire of your lordsliips, that the praceedingii
against sir Robert Berkley, kt. one of tbe jns-
tices of his majesty's court of Kiog's-boicfa,
may he put in as speedy a way of tttaJ, as the
course of parliamcot will allow.
At ibe-sam? time Mr. HoUii made a Speech
in behalf' of sir Randolph Crew, formerly Lonl
Chi^fjusticeof the KiiigVbencb, but renooved
for giving bis Opinion ^aiuH Loan-Uoacy.
My lords; thate gentlemen have [iinwatad
unto your lordships the tad object of jnsiioe
perrerted, liberty oppressed, of judgment tamed
mto wormwood, tlie law*, which tbonU faetta
gates to protect us, k»ep tia. aad
all that 'a oun in lif^, nude weak and inpo-
1297] STATE TRIALS, 13 CbaIii.es I. i637.— m the Case ^Siyt-M<m^. [1293
tent, to betniv OS unto the hands of violence;
iiuteod fit props to support us, become broken
reed) Co deceive us, and run into gur sides
when we lenii upon them ; eveit so many sniu-es
to entrap ond entangle us. And all this by
tl« perfdiousBBss of those who .-ire intrusted
with our lawa, who call themstlves the j;uar-
dians and the interpreters of the low; but by
Ihair accursed kIosscs have confounded the
text, aud miule it spent another lani;uai;e, nod
aooiher Mnse, ihao ever our ancestors the law-
makers intended.
Our ancestors made lairi to keep themselves,
■nd their posterity after them, iti the possession
of their estntes: these judges couU make the
law itself rob us, and despoil us of our estates.
^Vere we invaded or prosecuted at any time
ioi pretended crimes, or rather because we
were free from crimes ! And did we put our-
telies upon a legHl defence, and shelter our-
selves under the buckler of the law, use those
lawlid weapons which justice, and truth, and
tbecominonright of the subject did put in to our
hands, would tliis avail us? No ; these judges
nould make the law wrest our weapons from
ni, disarm us, take away all our defence, ei-
pnngG Dur answers, even bind us band and foot,
•nd so expose us naked and bound to the mer-
cilessness of our oppressors. Were our per-
•ons forced, and imprisoned by an act of power,
would the law relieve us when tre uppealed
unto it ? No ; it would join bands with violence,
and add bitterness to our sorrow. These judges
would not liearuE when we did cry; uo im-
portunity could gel a Habeas Corpus: nar,
our ciies would displease them, and they would
beat us tor crying; and over-do the unjust judge
in the gospel, with whom yet importunity could
My lords, the commons of England finding
themselves in this lamentable condition, by the
wickedness of theie judges, it is oo wonder
that »e complain of them. It is no wonder if
the knights, citizens, and burgesses assembled
in parliament, Imve sent up some of their mem-
ber* to stand upon moutil Ebal to curse these
judges; to denounce ■ curse upon theqi who
b.Bve removed oitr land-marks, hnve taLen away
tlie bound-stones of tlie propriety of the sulv-
ject, have left us no tatum et tuiiat ; but be
that had most might had most right, and the
laiT was sure to be of his aide. — It hath been
the part of these gentlemen who have spoken
l>clbre uie, lo pray for justice upon those men
who nould not do Justice to oibei-s. My lords,
I come upon nnother emmil, and yet for justice
too ; for tliere is justice upon mount Gerizim,
IS well as upon mount EbnI. It ia a great
point of justice to pve a blesaing, a reiord
-nbcreitisdue, as punishment where punishment
is due : for reward and punishment, prcmiam
et paaa, be the two legs that justice nalks on ;
tuid reward is her right leg, the more nohle and
the most glorious supporture of that sacred
and^ivine body, that which God himself, the
foundation of justice, doib iiiore deliftht in. —
' TBrdior ad pteoas Ueus est, ad prattoia veUii :'
VOL. 111.
Punishment is as good at' physic in the conse-
quence, reward as wholesome nnil nuuriiihiiig
Ibod in the essence, the one we do, because
we must do it as necessary ; the other, becausa
we love to do it, as being pleasing and delights
Vour lordsliips, then, I duult not, will u
willingly jiiiu with the commons in doing good
lo a good judgt, as in publishing of the bad.--—
My lords, Vfc lionour itian, ao'd reckon them
moityis for the commonwealth, who suffer anj
thing by defending the common right of iba
subject, wlien they will not pan with their own
gi"jds contrary to law ; when indeed their pri-
viite interest goes nlong with it, or mther be-
fore it ; aud the public concernment seems to
conie but in a second place. Such were tbostt
many whom these judges have oppressed; yet
these men we magnify, and judge worthy of
praise and reward. But what honour, then, is
he worthy of, who merely for the public hath
suffered himself to be divested and deprived of
his particular? such a judge as would lose hi*
place, rather than to do that which his coin
Bciencetold him was prejudicial to the common-
« ealtb ? Is not he worthy of double honour?
And this did that worthy reverend juc^e,
the Chief Judge of England at that time, sit
Randal Crew. Because he would not, bj
subscribing, countenance the Loan in the first
year of the king, contrary lo his oall) aud
conscience, he drew upon himself the displea-
sure of some great persons about his majesty,
who put iia that project, which was afterwardt
by that means he lust his place of Chief Jus
tice of the King's-bench ; and hath these 14
years, by keeping his innocency, lost the profit
of that olSce, which upon ajust calculation, in
so long a revolution of time, amounts to 36,OOOi.
or thereabout. He kept his innocency whea
others let theirs go; when himself and the
cnmmonftrealth were able deserted : which
raises his merit to a higher pitch. For to ba
honest when even body else ii honest, when
honesty a in fashion, and is trump, as I maj
sny, is nothing so meritorious; but to stand
alone in the breach, to own honesty when
othen dare not do it, cannot be sufficiently ap-
plauded, nor sufficiently rewarded. And that
did this good old man d o ; in a lime of general
desertion he presened himself pure and un-
tainted*— ' Temporibusque malis ausus ii esso
My lords, the house of commons are there-
fore suitors unro your lordsbipi, to join with
them in the representation of ihis good man'a
case unto his majesty, and humbly to beseech
his majesty to he so good and gracious unto
him, as to give bim such honour (the quality of
this case considered) as may be a noble mttrk
of sovereign grace and favour, to remain to
him and his posterity ; and may be in some
measure a proportionable compensation for iha
great loss ne natb «itli lo nuah pa^uic* and
resolutioD inttained.
4 O
Dijil,.,-., nGoOgIc
12J)3] STATETRIALS, ISCa.t l6$7.^'neKittgagaiMtJolutIJffiifda,aq. [ISD
Afrer the Ciinferencc tlie Lords cuce U> the
fot toning Rcjotutioiis :
Die Mcrcur. SO die Jna. iGtO.
Ic n>* retotved bv the lord» upon tlie ques-
ti<in, nero. con. 1. Thiit ihe Sbip-Writs, ihe
extra- judicial Opinions of tli« Judges thf rein,
bnth firet and last, and ilie JiuI|;idcui. given in
Mr. Uiimvden'a Case, nnd the proceedings
thereupon m the Exchequi.-r-Ctiaiiiljcr, arc all
Ule^, and coutrar; to the lang and uatutes of
this realm, cantrnry to the rights and properties
of the subjects of liiis r^m, conlrarji tofoimcr
juJi^ueiits iu parliaments, aod coucrary to the
felitian of Right.
2. That the extni'jiidicial Opinions Bnrall«d
in ttie £):cber)uer-Cliiimber, and in other Courts
conctrnitig Ship- Hooey, and all tbe proceed-
ings thereupon, are illegal in pnit nnd in whole,
■od cQivtrury to ttie laws and statutes of thb
realm, and coairarjr to tberigbtaaiKl properties
of the subjects of this realm, and conlrarj to
brioer iud^ent* in pariiameots, and coutrary
to llw Petition of Right.
Die Venerii, 86 die Fcbroorii, 10*0,
X'pon the report of the right honourable the
Inrds coniniiltecs appointed to consider of the
«rnj of vacatiiigbf iLe Jutlj^mciit in the Eidie-
quer concerning Ship-Money, it was orilerc>l
bv the Lords spiritual and tempoml in tlie liigb
court of parliament nssenihltd, Thnt the lord
keeper or the mneter of the rolls, iho two '
chief i notices, and tlic lord chief b;iron,
ULcnlse the chief clerk of the Stnr-chnuiber,
■hall bring into tlie upper hou^ of parUaiuen
tlie record inlheKichiipicr of the Judgment ii
Mr. llaropdcu's Case concerning Ship-Monty
a|iil also tlie tuvcnd rolls iu each scrernl cour
of Kiiii;V8rn('li, Coinnion-rieus, Exclietiuci.
i^tiir.t'h niiher, and Chancery, wherein ilie
Judges eXra-juiliclHl Opioions iu tbc cases
made touching Ship-Money be euteicd ; and
that a VacBt bhall be muue in tlio upper liuusi'
of purlinnu^nt of llic sikicl »(veral records; aud
liketvise the Juitsiiimt of pi-rlianient touclilng
tlie ille);.tlity of llie said Judgments in the \'.}i-
cluM|iier, and the prot;cediiigs thereu[ioa ; and
(ouihitig the illt^ahty of tlie cxtra-judFcbl
Opintins of tlie Juili:^! in the said several
courts concerning Sliij)-M.iie7, be anneied
and apotiiI(.(I unto lire snnic. And thnt a
copy of the Ju(lg>ncnt of the parliament con-
cerning the iljtgality of lIic said Judgment iu
tlic Exclicoiier, niiil the siiid eTitra-judicial Upi-
aions- of llu: sniil Ju<l'.'os concerning Ship-IUo-
ney, be delivered to ihu $cr««l Judges of Af-
file; and tliat they hs required to publish tho
Kunc at the Assise:) io aach sei-cral county
Witliiii their circuits, nnd to take care that the
Kiu)ti bo etilered and enrolled by the several
clerts of Atei^us : and iF any entry be rgaUe
h^ any Ciutos Itotulorum, or clerk of A*>
Hzc, of the said Jutlgment in the Exchequer,
or of the s.ud_ extra-judicial Opinions of the
Judges, that several Vacuts be made thereof,
* per ju die i urn in parliamcntof and tliat an act
«f p:irliament be prepared sguitut tiie said
Judgment and atra-judicial OiHnioDs, ani
against iLe proceedings toucbing Mhip-Uoaay.
Hanoraadum quod ricesimo septimodie Febr.
1540 Annoque regni regis duinioi nosui C;h-
roli Angli* ilecinn seito;
Vacatur i^ud recordum et judicium inde !«•
turn per considenLtioaein et judioiuoi doini-
irum spiritual, et temporal. In curia parltaia.
ct irrotulomentuin ejusdem c&ocelUtar.
Memorand' quod vicesima septimo die Tehr.
Istud irrotul. et omnia <t sbgula in eoden
conleiita et eipressa vacautur per judicium d»-
mioonim spirilualiuni et teuipoiaUum in cam
parliamaot.
And that all tba mils be rased crMs with k
Een, and kubicribed with the Clerk of tbe Ptr>
ameat's hand. All wbkh ita« accordngty
doiie in open coort.
After this it ^as Resolved upoo tbegaiilign,
nam. cou. Tliat the Itcsolutiuos of tba Jualtiw
toucliiug tbe Shippio^iMoiiey, and tlio Jud^
mcnt given agaii^bt Mr. IliunptLeu iu tbe Eik-
chcjuer, and »U the pniceedings ihereopoa,
ate agaiuit ibu Great Cbaiur, an4 thcrcluM
Tliat ^'.-lcats and cancelUiiona shall be mad*
of the ReAolutions of the Jtidg«» touchiai; iW
Ship ping- Money; and of the eiu»lili«ulstber^>f
intlicseveralcuurtt^ndoriheuairjiitdforShip-
^Vrit], nud proceedii^i tlicrein i aud tbe Jim^-
incut given i^aiiist Mr. Hampden, and proceed-
logs tlieroupun ; and lUnt entries be inadc »f
tho'c V':icut3 upon tlie SEverai rulls, Hcconiiiii(
to ihc fiinn read in the house.
11ie same session an Act uf Parli.-uncnt pass-
ed for that purpose, viz, Tliat the ciiaige im-
posed u]raii the subject fur providing sikI fa»-
iiiihing of ships, comnuHilv called Ship>MuiM;,
and tlur extra-judicial Opinions uf tlie jiBtJce*
and barons, uud thu utiis, and ever; ut'iheni,
and the ogreument or opiuion of tuo Kreatrr
part of tliu justices and haruns, aiul tbe Jndt-
Qicnt given nf^ainst John Hampden, etq. iaz
the payuient of Sliip-Muney, were and b4« con-
trary to, and o^inst tlie Iahs and statutes u
the realm, tlie right of pru|>erty, Uic lilicnj of
the subjerts, former restdutions of parlianm^
and the Petition of Hj^t made in the ihiid
year uf Wu miijcsty (hat now is.
That all and every ibv particulora pnycd
and doired in iha Petition of Righ^ shall frasu
liciicefurtb be put in esecution, aud shall be
firmly and sUiclly holdeii and observed, as in
the same Petition they are pniy«d and exptew-
ed; and that all and every the recordi and rc-
mcmbrauces of all and every the said Judg-
ments against the *aid John Hamadea, aad
all and every the proceediogi (rhattocw,
upon or by colour of any of the said vrit^
called Ship-Writs, and all and etei^ the dcpe^
dant»oa eiery of tlicm, shall be adjadgsdloaU
intents, constructions and purpose^ to be a^
terly vgid; and Utat all and tntg ibeaaid Jh^C-
Go.volc
I»l] STATE TRIALS, ISChaRlmI. lVyr.—mihtCdKt^Sliip-mniy. [1302
pnrtiament, the onljr place nlierc tbia miscliief
miglit be re<1rcssed. Sure iie ii iiuire wise nud
lennied, tlian to believe hlmsell' in (his o^iilion-,
ur not tu know how ridiculous it would appear
[o n piirliuiiicni, and lioiv d:iiieeruu9 co himseirt
and ihernliHt', no doubt, but by sajiili; iio par-
linnient could aholisb this jwlgmeiii, his tneau-
iu; \\a%, Tliat this jadgineiit lud aboliiibcd pai-
ThU impoiriioti o! Sliip-Mone; sprliigirw
from n pretended nccesiiiy, wm ii nai ennugb
tail it upon the state lor eier; inukingiieccssilj,
inlirrent to tlie crown, and glaverjr lo the sub-,
ject ? Necessity, wliicli, dissolving; all litw, is so
luch more prejudicial to bis majesty Uina to
ny of us, by hour much [be la<* hns invetted
the ruysl state with a greuler power and ample
fortune : For so undoubled a truth it has ever
been, that kings as well as sulijeota are involved
in the confusion vthich necetsily produces, tli:it
tbe heathen iliought their gods idio obliged by
the same : ' Pareanius nccositaii, qunm nee
' homines nee dii superant.' This judge thea
havLng in bis cliatse nc the assize declared the
dissolution of the Iliit, bj this supposed neccs-
Eity ; with nbat conscience could he, at iba
same assiic, proceed to condemn and punish
men, unless, perhaps, he mennt the law wai
still in force fur oui' destruction, and not for our
preseirationf^lbat it iliould have power lokill,
and Done to protect us ? A thing no lets hoirid)
than if tbe sun should burn nithout ligtjtiiig us^
or tbe earth serve only to bury, and not to feeif
nnd nourish us, Bui, my lords, to demunsU-als
that it nns a supposititious, imposed necessity,
and such as they could remove when tlwy
pleased; at the last convention in parbament,
a price iras set upon it, for twelve subsidies you
niay reverse this sentence. It may be said, tliat
so much money would bave removed ibc pre^
sent necessity; for twelve subsidies yua sliail
never suffer necessity again, you shall for ever
abolish that judgment. Here tins mjsterjr it
revealed, this vlzur of necessity is pulled Ojf ;'
nnd now it appears, tliat this parhnnifUt M
Judges Iwtli very frankly and bonntifuUj prer
sented bis majestv with twelve sulisidics, to b«
levyed on youi lordships and the commons,
Cenainl' tliere is no privilege, which more pro-
perly belongs to us, thou to open the purse of
E subject ; and yet these judges, who are neither
capaole of sitting umongst us in tbe house of
commons, nor with your lordships otherwise
than your assistants, have not only assumed to
themselves the privilege of parliament, but pre-
sumed at once to mote a present to the crown
of all that either your tordsln|W or tlie com-
mons of England do or shall hereafter posseM.
And because lhi< man has bad the boldnes*
to put the power of parlinment in balance nith
the opiniiin of the judites, I shall iutreat your
brdships Co observe, by way of comparicon, tb«
jmmt, tnrolment, entries, proceedings, and de-
pandant) of what kind snever shall be vacated
and cancelled, in such maimer and form as re-
cords use to be that are vacated.
Aitarwards Articles were exhibited ngidnst
the otlMT Judges. Those against Mr. Justice
Crawley were deliiereil hy Wr, Walkr, July 6,
lEil, who ipote as follows.
My Lords ; I lun commandifd by the house of
coinmoiis to present you with thae Aiiiclcs
agaujst Mr. Jilatice Crowley, wliich wlien your
loHships shall liovc been pleased to hear read,
I shall take leave, accorduig to custom, to suy
lomething of what 1 have collected from the
sense ot that house, concerning the crimes
dterein contained.
Thea the Cbar^ was read, containine his
extra judicial Opimons subscribed, and Judg-
ment given for Ship-Money : and aHer a decla-
ration in his Charge at au Assize, That Sliip-
Money was so inherent a right in tlie crown,
that it would not be in th( power of a parlia-
ment to take it away.
My Lords ; Not only my wants, but my af-
fections, render me less fit for tli is employment;
for though it hna not been my happiness to
liave tbe law a part of my breeding, there is no
man honours that profession more, or has a
greater reverence towards the grave judges, llio
oracles thereof. (Jut of pnrliament, nil our
courts of jus'ice are g'lverned or directed by
them i and wben a parliament is called, if your
lordships were not nssiaied by them, and the
taou5< of commons by other gentlemen of ilial
r»be, experience tells us, it might run a hazard
of being styled Parliamrntum indoctortim. But
at all professions are obnoxious to the mahce
of the professors, and by them most easily betray-
ed; so, my lords, these articles hare lulil ynu,
Irow these brothers of the coif are bceomeyro-
fretinmalo; how these soosof the law have torn
out the bowels of their mother: but thejudje,
tihose cliur^c you last heard, in one eirprestioii
of his, excels no less his fellows, ilian they hav<
dnnc the worst of their predecessors, in thi:
conspiracy ngninst the commonweulih. Of thi
judj^ient for ahij>-Money, and those extm-jU'
ilicial opinions preceding the same, (n bcreii
they are jointly concerned) you have already ;
]^e
^pressed to your lordships : but this
ihg despair to our misny, tells us from the
Bench, That Ship-Mone^ ivas a right n ' '
ntit in tha crown, that it would not be
>werof afty act of parliament to take it away.
herein, my lords, he did not only give as deap
» wound to the commonwealth at any of the
i^st; hue dipped his dart in such a poison, tliat,
«D far at in him lay, it mi^ht never receive a
cure. Ai by those abortive opinions, sub-
scribiug to th^ aubversiim of our property, be-
fore he heard what could be said liir it, he pre-
vented his own ; so by this declarnlioD of hi^,
he' endeavours to prevent the judgment of youJ
Ibnltfaip* too, and to canGae th« povrer of a
solemn and safe proceeding of the o
the precipitate dispatch of Uie otiier. In pai^
liniDent(as your lordships know well) no new
Uw can pass, or old be abro^ted, till it ha
1303] STATETBlAl£,l1iCB.Ll637^7%eaigafftMtJciiiEa>fAM.aq. IIXM
anticipadoD of neceuit; seems to have been mo
leu oiBiaous to uti These Juices, Like iU-
bodiug birds, have called neceuitj upon (he
been thrice retui with your lordships, thrice in
liie commons houte, Uien iC receiTca the rojst
■sseiit; io that it is like gold seven times puri-
fied ; Whereas these judges, hj ttiis one resolu-
tioD of theirs, would persuade his majesliri that
by naoiiog necessity, he might at ooce dissolve
(at least suspend) the Grsat Charter, ihirty'lwo
times confirmed bj his rojai progenitors, the
Petition of Right, and all other laws provided
^r the maintenance of the right and property
of the subjecL A strange force, raj lords, in
the sound of this »ord necessity, that like a
Chano it should silence the laws, while we are
despoiled of bU vie have ; for that but a part of
our goods was takeu, was owing to .the grace
and gooduess of the king ; for su much as con-
cerns th«se jud)i;eg, we have no more left than
they perhnps may deserve to have, whcu jrour
lordships shall hnie passed Judgment upon tliem
for tiiis iiejilect of their oaths, and betrajiiig
that public irusi, which, for the conservation sf
our lant, tias reposed in ihern.
Now, for the cruelty and unmerciful ii ess of
this iud:;mear, you may please to remeiuber,
that m the.oId law (hey nre forlud to seethe a
kid in bis moiher's milk ; of which the received
interprets lion is. That we should not use that
to ihe destroctiun of any creature, nhicli was
iotended for its preservaliun. Now, mj lords,
God and nature have giieii us the sea, as our
best guard aiiainst our enemies ; and our ships,
wa our greatest glory above rjther sintious : And
bow barbaroo4y would thrse mm have let in
the sea upon us at once, to wash away our hhnt-
ties ; and to overwhelm, if not our land, all the
property we have therein, making the supply
of uur navy a |;reteiiLe for the ruin of our na-
tion ! Far nbscrve, 1 beseech yuu, tlie fruit and
consei]uei1ce of this judgment, hon this money
bas prospered, how contrary an eSect it has bad
to the end for which they pretended to take it.
On every coanty a ship is ntmually imposed ;
and who would not expect, but our seas by this
time should be cover«l by the number of our
Bbips? Alas ! mj lords, the daily cam;ilaints of
the decay of our navy tell us, how ill Ship-
Slonej has maintained the sovereignty of the
Ma; and by the many petitions which we re-
ceive from the wives of those miserable cap-
tives at Algiers (being between four and fiia
tbousand of our countrymen) it does too evi-
dently tppear, tfaatto make us slaves at home
is not the way to keep us from being made
■laves abroad. So inr has this judgment been
tuna relieving the present, or preveiiling the
future necessity, thnt 03 it changed
property into a shadow of a property, so of
feigned it is made a real necessity,
A little before the approach of the G^iuls t
Borne, while the Romans had yet no apprehi
■ion of that danger, there was henrd a voice ni
die air, louder thnn ordinary. The Gauls are
come; which cry, after they had sacked llic
city anri besieged the cnpiiol, was held su omi-
nous, that Livy • relates it as a prodigy. This
• lib. y c. 33.
state, ~in a lime which, 1 daresay, ihey tlMKi^
themselves in greatest security. But if it seen
snperiiitious to take tliis as an omen, sure I ^
we may look on it as a cause of the UDfe^ned
necessity we now suHer : For what regrvt wad
discontent had this Judgmeat bred auKMig ui I
And as when tlie noise and tumuit in > private
bouse grows so loud as to he heard in the streets,
it calls in the next du elleis, eillier kindlj to a^
pease, or to make their own use uf dumetUC
strife ; so in all tikehhoud, our known discon-
tentments at home liare been a cuncurreot
much to the eipeiice and trouble of butfa tliise
And here, my Lords, I cannot but take co-
tice of the most sad effect of this Oppresiiuii,
the ill induenct; it has had u^^oR the anitent re-
putation audvulouroftheEnj'lishDaii"n : Aod
no wonder; for if it be true, that uppr^ssiun
makes a wise man mod, it may well suspend
the courage of the valiant. Ttie snme happen*
ed to the Romans, when, for Feouwn in anus,
tfaey most excelled the rest of the world; the
ttorj a but short. It was in tbe lime of the
Decemviri (and I ihink the chief troul.lvrs ol
our Slate niuy make up that number.) llie
Dccemiirj, my lords, had subverted the Lavs,
suspended the Courts of Justicr, and (Hhich
was tlie greatest Grievance botli to the Bobtlilj
and people) hail, for some time, omitted tn as-
semble the Senate, k hich was their Parliamenti
This, says the llistnrian, did not only dejeci the
Romans, and make ttiem despair of their libet-
ty. but caused ihem tu be Ii:^s valued by their
n'eiiihhours. The Sahiiies take ihe adrani^e,
and invade them; and now the DecMnviri are
forced to cnll a loiig-deiireil Senate, wliereof lite
people »ere su^laij, t)lat'liustilHllbelloquegra-
' tiara hahuerunt:' This Assembly breaks up
in discontent, nevertheless tlie war proceeds ;
Forces are raised, led bv some of the Uecemiiri;
and with the Sabines tliey mret in the 6M. I
know your lordships expect the eveul: My An*
thor's words of bis countrymen are these: ' Ne-
■ quidductuautausjjiciodecenivironiinprospcre
' gereretur, vinci te pntiebaolurt' they cWe
rather lo sulTer a present diminution uf their
honour, than by victory to confirm tbe tyranny
ofilieirnew musters. At [heir return from ib^
unronunnte Expedition, after some disicmpen
and expostulations uf the people, anntlicr Se-
nate, tlmt is, a second parliament, is called;
and there tbe Decemviri are questioned, de-
prived of their authority, imprisoned, bani^heil,
and some lose tli«r lives: And soon after this
vindication of their Liberties, tlie Roinans, by
their better sucress, made it appear to ibe
world, that liberty and courage dwell always ia
the some breast, and are never ttkbe divorced.
No doubt, my lords, hut yourjusticc shall bat«
the like effect upon ttiis dispirited people. It
is not the restitution of our antient laws ahw^
but the testoration of our antient coiuif^
,ji,.«.;, Google
ISOA] STATE THIAI£, 13 CuARLEil. \()y].—inaeCMe(fSligi-Moii^. [ISOfi
against Mr. Justice Cranle?, M tbe conne of
parjiunentwill pennit.
wbkh is expected froa jour lotdships. I owd
nut MT Btij tiling to more ycnr JDit iiuli|Dm~
tioo, tliat tiiis rnno ibould v> ehaaplj {(ive away
that which yoar noble ttncMton, with so inucti
coarage and indattrj, had so long maintained.
Yoa hare often been told how car^l they ware,
though witli the hazard oftbeir lives and for-
tunes, tu derive those Rights and Liberties as
entire to iiosterily as ihey receiTed them froin
their fkthets; what ihej did with labour, you
may do with ease ; what they did with danger,
TOu may do securely. The tbundacion of our
laws is not sbokea with the engine of War ;
they are only blasted with the breath of tbeK
men, and hy your breath they may be restored.
What Judgment your predecesaor* have
given, and what punishments their predeceasort
have suCcriHl for offence* of this nature, your
lordship) have already b^en so well infbimed, I
■hall not trouble }ou with a repetition of those
precedents. Only, my lords, something I shall
take lenvc to observe of the person with whose
charge I have presented you, tbat yon may the
less doubt of iJie wilfulnesa uf this oflence. —
Ilis educBtion in the Inns of Court, his con-
Btant practice as a Counsellor, and experience
«s a Judge, ci>nGidered with tlie mischief he has
done, makes it appear that this progren of bis
through the law has been like ttiat of a diligent
«py through a country into which be meant to
conduct an enemy.
To let you see he did not oSend for company,
there is one crime so peculiar to biBuelf, and of
such malignity, that it makes him at once c
pable of your lordships favour, and his
subsistence incompatibie with ihe right and
property of the Suoject. Fot if you leave hi
la a capacity of interpreting ihelaws; has he
not declared his Opinion, Thst your Votes and
llesolutiona against Sbip-Munej are void, and
that it is not in the power of parliament tC
abolish thst Judgment l To him, my lords, timt
has thus played with the power of parliument,
vie mny well apply what was once said to a
goat browsing od a vine : ■
' Rode, caper, vilem, tamenhinccumstabis
' In lua quod fundi comua possit,
He has cropt and infringed the Privileges of
a baniihed parliament ; but now it is retnmad,
he may find it has power enough to make a sa-
criBcaofhim, to tlie better eslHblishment ol
our laws : and in truth, what other salis&ction
can he make his injured countiir, than to
finn, hy his euunple, those Riehts and Liber-
ties which he had ruined by hia opinion } For
the Proofs, my loirb, they are so ojaiiifest, that
tliey will give you little trouble in tlie disquisi-
tion ; bis crimes are ahead^ uoon record ; the
delinquent and ibe witness is the same ; bnving
from several seats of judicature proclaimed him-
self an enemr to our laws aod nation, ■ ei ore
' auo judicahuur.' To which purposel am com-
manded by the kn^hts, citiseoa, and burgesses
of the house of commons, to desire your hird-
iliipt, that a ipeedj pioceeding may be bad
The fbltowins is a Latia Copy of the Writ
given at p. 846.:
Ris ver$iu Jouannek Hampdeb, in the
Caseof SHiF-Monar.
Triu' 13 Car' 1, in Scacc*.
Uemorand', quod hrer* domini regis nuns
b sigillo hujus Scnccar' per concess' iinron'
Lie onanavit in hac verba :
II. CAKOLes Dei gratia Anglis, Scotix,
Franciai, et Hibemiz rei, fidei defensor, &c.
Vic* Bucks lalutem. Cum diverse et saparal'
denar'suiDma in sebedul' huic breti nonei'
spec', virtute brevis noatri sub mngno sigillo
nostro Anglia geren' dat' quarto die Angn^ii,
anno regni nostn nndecimo, assessat' et onernt'
fiief' super separal' person' in tad' schedul' no-
rainat*, lu et versus provision' oavis pro gucrru,
a cum apparat' et al' eid* pertin', in eod' bre-
particular' mentionat'; qnibus quid' separiil*
nar* summis sic aieessat' et onerat*, et non
solut' et satisfact' eiisten', per breve nostrum
de certiorar' Keren', dat' nono die Martii, anno
regni noatri duodecimo, sub magno sigillo nos-
tro' prsd' emanat', noniina eirund' separal'
person' una-cum sepand' deoar* summis super
ipsos ODerai', incut' Cancel lar* nostrw ceriiG-
ut' faer*. Ac per breve nostrum de Mittimus
sub eodem ■igillo, geren' dat'quinto die instant'
meusis Mali in Scaccar* nogtr' miss' fuer' pro
ulterior' process' super inde lialiend', prout per
tenureta pnsdicti brevis geren' dat' quarto die
Augusti, anno retni nostri undecimo, ac per
pnralict' breve de Certiorar' « certificat' super
inde tact' in dictum Scuccar' nostrum miss', et
ibid' de record' in custodia ReiTTeinorai' ncisiii
remaneo' pUnius apparei, tihi precipimus. quod
non oniitt' propter aiiqu' libertol' quin ea iiigr',
etper probus Et legales homines de bid' tua
acir' fac' prwfal' sepnnil' person' in liict' srhe-
ditl' nommat' et sprc', quid sint coram Baron'
de Scaccar' nostro apud West' in ociab' sanct-t;
Trinii' prosim' fulur, arl osiend' et proponeiid',
siquid pro sc li^ibeant, vel diccre sciani, quare
ipsi de prnd' separal' dtniir'summis super ipsos
modo et formn prxdict' nssessat', et non solul',
in schedul' il' spec', onetnrl et inde satisfacere
non deb' tt ad ulterine briend' et lecipiend' in
prnmissis, quod cur* nostra tunc ibidem duie-
rit ordinand' et habeas ibi tunc hoc breve, et
nomina enr" per quos eis scJri ft^eris. Teste
Humfr, Davenport' mil, apud Wesim', viccsimo
lecundo die Mali, anno re^i nostri decimo ter-
tio. Per rotulum.
Memorandum de eodem anno regis in recor-
der' rotulu termini Pascbn, tenor schedul'
Kted' in breii prsdict' mentionat', quoad Jo-
nnem Hampdfn, sequiiur in htec verba: u.
Schedul' de nominibu's certar' personar* in com'
Bucks, etoert' denar' summar' super ipsos as-
sessat' et onerai' in et versus pruvisioii' navis
de guerra, una cum apparat el al' eid' pertin',
' cujusd' brevis sub magno sigillo Anglite
dat' qoarto dia Auguiti, anno ranu do
gercn'i
0 reffii do-
19071 STATETRJAI£, 13 Cl.I. 1637— neSpVaSomtfJbht JToi^dai.ei;. [WH
mini reg' aaoa Canli undecimo, et in cur'
Cancellur' dam' regis, virtute brevii de Cei'
tucar' tub sigillo pnid' eman', ger«n' dac' tiono
die MatIu, a^ino regnl sui daodecimo, certificit!
esse insolut', ic per breve de Miltiniui sub
codem li^tlo in Scaccar' diet' dam' regis nunc
inisti) pru ulterior' process' uiper iitde ^tend',
praut per tenor' pnedicc' brerb gerea' dat'
quarto die Augiuii, ■aou re^i dicti domini re-
gi^ nunc imdeciiuo Gupradict', ac per breve <de
Cecliorar', et certificat' wperiade fkct" in dic-
tum Scacca' noatr* miss', et ibidem de record' io
cuitod' Iteioeinoiat' doat' l^ia lenan' plenuu
Bppsret.
Stoake Maiujivile, a, Johann' Hampden esq;
Ad quem diem Antbonius Cbeiter banmet',
vie* com' prteilict', quond prsttat' Jobacuiecn
Hampden reuirn', quod perNicokam AtisBo-
benum Aleiaudei, Richordum Uurisaa, et
Will'mn Uejrborne, probos et lef^n hotBinat
tie ball' sua, sQtri fecit, pnefat' Jobaon' Uamp*
den, inter al', quod eic coram baron' infra tcripc'
ad diem et locum infra content', nd oslendend'
et proponend' u quid pro se babeat, vel dicere
tcint, quare ipse de pradict' tumma tup«r ip.
sum Bssessat , et non solut', in schedul' prB>
diet' spec', oiierari et itiile satiifocere non de-
beat, prout ulteriul sibi ^rj^cipitur : £t modo,
icilicet a die wnciai Trinitotij in tm leptiman'
veiiit hie prad' Johannes Hampden, in achedul'
pried' nomiiiBt', io propria peraonaiua, et petit
audit' breviG de Sciri Facias pr«ed', retorn' ejuS'
dem, ac pr^ed' schedul' eid' aaneiat', et ei le-
gunuir; petit eiinm and it' prad' brevii, geren'
dnt' quarto die Auguiti, anno re^ dicti do-
mini regis nunc Caroli undecinio, in brevi de
Sciri Fucias inentiiiuat', et ei legitur in bcc
M. Carulus Dei gratia An^is, Scotie, Fran-
cic, et Hibemiw rex, fidei defensor, &c. vie'
com' noitri Bucta, ball' et burgens' burgi et pa-
Todi' rje Buckingbam, majori, ball' et buigeui'
burgi de Chippiiig-V^'iccombe, ntias Wiccombe,
«c probi) hoDUnibus iu eiadem burgii et parocb ,
et mombris eorund', et iu villia de A%iaou6e'
sham, ^^'e^dover, ct Marlow nugnn, ac in om-
nibus ulii» burgia, villnt', hamlet' et al' locis io
dicto coin' Bucks, salutem. Quia dot' «bI nobis
intelligi, quod pnedoiies quid', pirati, et mar'
IE Christinnt hustes Ma-
'Bgregati, naves et bona
subditor' nostr', verum
mari, quod per
i, quain alii i
1 SuluL
t«ai' AngUcon' ab olim defend'
larie dirlpi^ utes ct spoliajites, ad libitum tuum
deportotere, liominea in eisdcm in aaptivitate
tDiierrinia niancipaiites : Cumque ipMS coiispi-
cimu» navigiiun indies prxparontes ad merca-
tores nnsiros ullerius molestond', et ad regnum
gravBod', BJsi citius remedium apponatur, eor-
uoique conatui viriliua obvietur: Contideratis
etiam periculia, qua undiqua hii ^uerrinis tem-
poribus. iiniuineni, iCa quod nobis et subditis
nuitris, dtfension' maris et regni umni festinB-
tione, qun.puterimui, accelerarcconTenit ; Not
volcntes defenuQoi regni, tuitioai maris, securi-
tui tubdiimt' naur', mn oMMfautiw* nawum
;n', ct de eoi' regno ad pane* eilcTU Unh
seun', auTiliaiite Oeo, proririere ; maximtian-
que nos et pregesiurei nostri r^es Ab;^ 4»-
mini maris ptmd' Mraper faacteBai eniin',t
pturimun nos ixderet, si bonor iste rr^ti iwt-
tris tBraporibue dq>ci«>it, aut in aliqan mBia-
tur ; cuibqaeooHS lADddderuiunis, quod omir-
tBDgst, per onnn debeat sapportari, praiK prr
Itgem K coDSuetedMem re^ni An^ix fieri con-
snent, vobie pnefat' Ticeoomiti, ball' bni^ei^,
raajori, prabis bofninibuf, et omnibui din qd-
buscunq; supra mcDtionat' in bnigi', villis, rl.
lat' hamlet' et locis lupradict', eorumque aisn-
bris, in fide et ligeantio, quibas nobis tennniai,
et sicut DO* M honorem nDMram diligiiii, neo
UOD sub fbrit&ctur' omoinm qus nobis hir&-
cere poteritis, firmitcr injungend' niaitdaiini>,
quod unam narem de gnerra, portagii qasd-
ringint' et qaiaqaagint' dolior', cum iKmiuibiri
tarn mngistris pcritii, quam mariniir' laltsDoti-
bus et cxpertig cent' et octogint" ad miau!, u
eciam toratentJB tam tuajoribui quam miaori-
bus, pulvere tormentario, ac bastts ct tdi^
aliisque annaturi! necessat* pro gueira sofi-
oieii', et sum dnplici eskippamento, neaatl
cum victualibos usque ad priinum diem Sliint
Jam proxime sequent', ad tot honincs conpt-
ten', et abinde in vigint' <:t m septimau' >d
custag' vettro, lam in Tictualibus, quam ii ho-
minum salariis, et al' ad guer' necesaei' fer
tampus illud, super defensionem marii in ob^
sequio nostro in osmitJTa cuslodis mam (cm
oustod' maris ante prsed* primum diem Msm
oonmitteiaos) et prooi ipse ei parte nostnulic-
taverit raoratnr', parari, et nd porlum de Ports-
mouth cilni dictum primum diem Uirtjidio
laciatis, ita quod sint ibid' eod' die ad atbrnm,
Dil pro&ciend' eiimje cum navibus noCrH,^
navibus olidr' fidefium subditor* nostr', pni toi-
tioiie maris, defetisione noHruns et noilrtinm,
repuluaneque et debellntionc qooniDmnq;
mercBlores nastros, et alios sabditDS M<ia
predict' in dorainia ua«tra e^ causa mnctum
se diversaoles, tcI abinde ad propria dftbnsB-
tc9 super mnrc gravare leu molestaie satagn-
tiuja, Assignavimus aotem vos lic'com'DOtfr
Bucks, ball' et raaior' burgor" el paroch' p«-
dict', But aliquos duos vel plureg Tcslrum, nfio-
rum te pt*fat' sic' com* nostri Bucks uaoin «B#
TolumuB, infra tiigint' dies post recepWO*"
bujus breria, ad assidend' quantun de esstaf
predict' super pned* burgos de Backin^bsBtt
Chip ping- Wiccombe, alias Wiccombe, 5«°?
raembcis eorund', Bepuratim poni aut "^^
debeat. Et si bujuimudi assnssmeul^ 'o"*
prjedict" triginu dies per vos duos, rd pl"W
vestrum fieri non contigerint, tunc a»sipii""ia
te prafat' •ic' com' nostri Backs ad aisesaiiw"
bujusmodi super predict' burgos et paf*^'| • "
membr' eorund', laeiend' prout raiiousbinln'
vide* fiuiend' ; et volumes, quod de Wt* "^
tu pnefat' vie* Bucks, sub sigillo mo p***
majorem ct ballivos reddas certiotes. ■*»*
nnvimus etiam te prs-fiil' ball' huip « )W«tf
de Buoku^haa, adasaJdeDd'omues hooii^'^
facias niCDtioDtt', Md
err' teumiat, in eMua nsvem Ml partem nn-
is predict' iMiii tiabentes, ye\ ineailem Don
lemvieDtet, kd coDcnbneBd' eipmsn circa
irovision' prwmiuor' peceiHr' ; « luper pne-
lict' bur)^m et paroch', cuin membns cjued*
sicut prterertur) nMitlenil' et poneud', vii.
luemlihet eor' jux(» itHtDm auum et fncuilatet
iia* et portiooei luas ipsii aueiMt' per distric-
ionei, alioaTc nuMloi debiioi levuid' et cnllec~
ores in bac parte nonunukl' et comtituenri', et
HBnea em, luoa rcbelles et contrarios inveneris
n pneiniuia carcerc miDcipant}', in eodem mu-
Btur' quuDsque pro ood' deliberatione ulterins
lijietiiinis ordinand'. AMi^aviiDiu eitnm le
ua?fat' major' burj;i de Cbi|ipT>i)r-\Viccoinbe,
iLas Wicixmbe, ad aMidenil' omnes bominet
a eod' liur|p) el membris pjusdam, et ler* te-
lentes, in eiitd' aartat \el partem natis prsdi'
lOB Imbentea, *el ia endem Don (lem-Tientes,
id cantriUiend' eipen^ir circa prou^iOTi' prx'
nisior' nacessar* ; et Bi»p«r predict' burg', cum
neMtbris eju»d' (ticui pr«femir) sssidertd' eC
MMwud', VII, quemlibei enmia juxta ilatuni
•am et Tacoltatet sum, m poriioneB siiprr
paos aK&M«' per drstrictionn, aliosve modos
lebitm Ipvaad', (-t colJcctort's in hac part*
lomiiiand' et coiiisticiieitir et omnei em, nutn
ebelles et contrariot inveneris in prarDiMig
n carccre luanoipnad', in eaiP moratur', qoo-
mjuo pro eur' deliberatione ulterirta duierimus
irdiniinil'. l-^t ulterins lusignnvinius te prsefat'
ricceoiDitem com' uostr' Bocks nd Hssidend'
Mnnes Loiniitcs in pncd' villis de Agmonde-
■hon, Wei>d(>ver,et Marlow ina^Ba,et in mem-
xi» eoniiid', et in omnibui aliii villis, villnt",
■urgii, bomlet', et aliig lacin in prtcdiet' com'
Bucks, eC lenr' lcneut«« in eisdeni, iiavem vnl
MUtena oavia pned' noa babeoCeg, v«t in eadem
Mn dctervLeiiies.ai) cootribnend'expensis circa
iroTJ^ionem pramiMor' necesmr', et luper
wadict' villai, tillat', bui^j, hamlet' et locos,
■ura iDcmbris eonin<l' (aicat prKfwtur) assi-
lead' et puuend', ti^. quemlibet eor* juxta
ilatum «uum, et Aicultnles &un«, et poriionei
luper ipsoi auesiat' per districtinne^, nliosre
nodos dcbiios letana' et rolleclores in hac
jwtc nomiuBDd' et coutitucnd', el omnes (]uo)
'ebelles et caiilrarios inveneris in pranmais
;arcere mancipaDd', in eod' mi)ralui',r)uousque
m> eor' deliberatione ulterius duxerimns ordi-
tand'. Et olteHus vobis inandamui, quod circa
wemlaia diligenicr iotewlntiij, cc en faciatii, et
tiequomiui cum eflcclu sub pericuto incurn-
Mnte. Nolumn* nutem quod colore predict*
nandot' uostr', plai de ei»d', bominibus levari
iaciatis, qnam ad pmniiMr' sufticiet expensas
leceisar', hue quod rjnisqaain, qui pectiniant de
Mntributi Dili but nd predict' custag' faciend'
maverit, eam, vd partem inde aliqnnm penes
I* dedneat, nl ad al' usas quovis quxtilo
ralere ■pproprinra pnesumnt, volentes, qaod
li plus quaoi suBicial collect' fuerit, hoc inter
Ndranm prorata porlionisipsii contineen'ei-
lolvMar. TMte me ipso spud Westm' quarto
lie Aogatti, anno retni nostri undecitno. Pe-
tit (tiMBawlit' pntdiet* breiia geren' dat' nono
l»U>itii, UMonfniilicD donnBi regis lii, in
jirirdicl" brevi da »
similiter le^tur,
Corolus Dei gratia An);lia:, Scotis, Francia,
et Hibemi*! rex, fidei detenior, &c. ▼ic' com'
Dostri Qacki, qui fuer* inter quartuni dieiD
Augusti anno Tcgn't noslri undccimo, et jirimum
diem Martii tunc proiime sequent,' bnll' burz*
et pnroch' de Bucliinglmni, tt major rt bajP
burf^ de Chipping-Wiccoinbe, ulini Wiccombe,
in dictn corn' BncLs, qui fiief* inter tenpiM
pmdici*, saluiem. Per brei-e nostnioi sub
magno sigillo notiro Anf^liz conlect' gcren' dat*
pricdict' quarto die Au^ubii, anno undccimo
supradlct pro defencione rcgni, turtione marir,
sacuritale subditar' noair', ac salva coiiductioue
navium et mercbnndizurum ad regn' noatr' An-
gHai venieu', et de eudem ad partes extcras
traoseon', vie" com* nostri Buck*, ball' bur^i et
peroch' de Buckingham, necnon Burgen^ .
tjusd' bur^i, major' et ball' do Chippinc-Wic-
coTube, alias Wieconihe, necnon burgenaejutd*
bur)>i, re probts bominibus in ejsdeni burgis et
parocli" et meinbris eorund' et in villii da A|-
inoiid«sham,Weiiil0veT, et Marloiv magna, «e
in omnibus aliis villis, bums, villat,' hamlci',
et ntiis locis in dicio com' Bucks, mandavimus,
<(aod iinaiD navem de giierra poitngii quadrin-
geot* et quinquagint' dulior'; cum homtnibuii
tarn magibtris peritis, qunm marinar* valriitio-
ribuf et cxpenis centnni et octugint' ad minus,
ac etiam tormentis tam majoribus qutim mino-
ribus, pulrere tormCiitnTio, ac hasiis et iciis,
aliisque armatnris iiecessar* pro guerra, suffi-
cien', et cum duplici eskippaaieiitu, necnuu
cum victaalihos ad certuin diem (in eod' bitvi
coutenf) nd tot homines compeicn*, et ab inde
(n vigint* et sw sejitiman', ad cuatag jiumi-
num et lerr" tenen' uurg', pnroch', vill', villat',
et nl* locor* supra mentiunat' in dicta com'
Bncks, lam in victoilibus, quam in bominnia
salariis, et al' ad pierr' oecessar" per teropu*
illud, super defensionem maris raoratni' paniri,
et ad portum de Portstnooth citra tempos in
eod' brevi linritat' daci fiiceretis. Cuinqus
ctiaai per ideni breve asAgnni'erimns vie' com'
nnstn Bucks pncd*, Imll' bur^i et paroch' de
Buckingham prsd', et major' burgt de Chiji'
ping-Wiocombe preil*, aut nlinu"S duo* vel
S lures eomn), qitor* ^ic* dicti com' nottri
lucki unnm esse vujumus, infra certum teimi-
num proxim' post rec^tioncm brevis illiu«, nd
Bssidend' quantum decustag'pned' super pned'
burg' et paroch' de Bucliinghaui, et supiTpfsetr
burg'de Chipping-WitxOmbe, alias Wiccombe,
cum mcnibris eorund', separalim poui^ea nssi-
tleri deberet. Cumque etiam per prxd' breve
nostrum as9ignB\'eiimDs ball' ^urgi et paroch'
de Bucking,' et M^orem de burgo de Chip-
pi ng-Wiccum be, alias Wiccombe, sepaiatim et
respective, ad assidend' omnes bouiinei in eisd'
separal* burg* et pBroch*, et membr' eorund',
et terr" tenentes in elsdem, navem ve! partem
navb prxd' oon habentes, vcl in eadcm non
deservtentes, ad conlribuend' ad eipens' circa
provisionem premissor' necessai'; et super
prcd' burg'et paroch* de Buckingham, et super
pned' ba^deCliippine-Wiccomfae,atia(1Vio'
iSll] S^rATE TRIALS, 13 Cb. I. 1037.-
cooibe, cum membrii eorand', sicut praefertur,
■d tunc iiepnmtim el distinctive punend',' viz.
quemlibet eoruin juxta itatuin suura et facul-
lUes SUU9, et portimies !>uper ipaus astessat',
per cfistricuoncB ali'ove rooUns deliitns lerand',
et coltectorfs ia ea pnne nomiDand' el consli-
luend, modo eC r>iriDa praut in euileiu brevi
prsEcept'.fuit. Cumque per idem brtve ani-
trum ultcrius assignaveiimus vie' <licii com'
nouri Bucks ad assidend' orones buiniiiei in
S' rsd' villii de A^moiidesham, Wcndover, Mar-
>n magna, et in roeuibris earniid', ac in cim-
nibnsaliis villis, villat', bugis hamlei', et uUis
locia in pned' com" Bucks, el lett' leiientes in
eisd', ad contribuend' eipeiisis circa prokiiiL-
nnem praimissnr' necessar' et ad c:clera t'uci-
end' et exequeiid' modi) et furma, quibus per
brcre illud prfeoejitum fuit. Et quia n^ilinulli
komines et.terr' tenente* in predict' com' burg'
paroch', vill', villat' hamlet', et aliis l()ci8,
per separal' laiationi?s et denar' suDininG, per
vos super ipsoi respective eiipi cuntribution'
onemprxd, juxtaetigen' brevis prasd' posit' «t
ossessiu', cnndum solveriat iiec saiiuacerint,
sed eas solvere recusavcr', et adhuc contra-
<}icunt, prout infarmnmur : Cumq; nfk nupet
vuluimuE ceriinrui, uun de nomiuilius bomi-
iium et terr* teiieot,' qui ad contribuend' ei-
pensis supradict' assess fuisseui, ac 'denar' sic
abscss' non lolvisseiit, quam de scparsd' parti-
onibus vel densr' suminis super ipsai imposit',
vus tamen nihil ia return' cjusdcra brevis nostri
misistis, in nostrum contemptum : Vobis igitur
prsfat'nuper vic'com' nottn Bucks mandamus,
sicut al' mandaverimui, quad tam de uomiiii-
bus homtnum et tef teneo' in com' przd' per
vos respective viitute dicti brecis nostri aa-
lessat', quas dcnar* summis super ipsos sic as-
*esBat', quaiQ nondum solver* nee ^satisfec', sed
etu solvere recusant, quas de separal' portiooi-
bue et denar' summis pei vos pnefat' nuper vie'
com' nostri Bucks super ipsos aucMat', io
tcripL' reduct' cum omnibus ill'tangen,' noi in
cancellar' oo&truii sub slgillis vestris distincte
et aperte, sine delatione, vel ad ultimum ante
vicesimum aeitum diem April' proxime futuro,
ubicuDque tunc fuerit', reddat' certiores, una
cum hoc brevi. Ac vobis preeiat' nuper ball'
bur^ et paroch' de Bucking* et major' bur)('
de Cbipping-Wiccombe, al' VViccombe, man-
damus, sicut aliis mandavtriinus, quod tam de
nominibus prad' hominum et terr* cenen' in
bui^ et paroch' de Buckingham, et burg* d«
Chipping- VViccombe, alia* Wiccumbe, per vos
' respective virtute dicti brevis nostri suparius
prima menllonat* assess', quam de separul' de-
nar' summis super ipsos auess', quos nondum
•olver' nee satisfecer', sed eas solvere recu-
sant, quam dc separal' portioiiibus eC dennr'
summis per vos super ipsos respective assess'
in scripus Sdeliier reduce', cum omnibus illis
tangcn', nos iu cancel I ari am noslr' prs~d' sub
sigillu DOSiro distincte et apene, sine dela-
tioiie, vel ad ultim' ante predict vicesimum
dieui Aprilis proiim^ futur', nbicanque tunc
fuerit', separatim reddatis certiores, una cum
boc bravi. Tasia inaipto a^ud Wcttm' nono
■T^KngagaiMtJi)inHati^)den,ag. [I3)S
die Martii, anno regni nostri daudcanio. —
Ad quern diem Petrus Temple et Heneapiis
Probjr return' brev' pned' don' sic: n. Exe-
cuiiu hujiis bievis patet if) quibusd' schedsT
huic brevi anneiHt', quarum quidem ichedol'
tenor, quoad piletat' Jnhaii' Hampden per
pntfitt' Petrum I'emple lecumat', se^uiiur in
luEc verlia: w. E|[o relrus Tempie mil' et ba-
ronet' qui fui vie' com' Bucks, vu. inter quar-
turn diem ^ugutEi, anno regni itomini nostri
Caroli nunc n%it Anglis, &c. undt^imo, et
vicesiiuum secuudum ihem Feb. tunc pruxime
sequi-n', quo die exivi ab officio meo vie* com'
prKd'.dictiidumiuoregiin cnncellar' suam, lii^
tuie brevis ejusdeni domiui regis huic schedul*
anei', ceniGco, quod-vitlute et secundum cxi-
gea' brevis ip^iiis dumini regis e canctUar' sia
emnnat', et ibidem de record' irrotulat', et vie'
dicti com' Bucks inter al' direct', gercu* dat*
quarto dieAugusii, anno undecimo lapradict',
as^essavi, Anj^ice 'bnve assessed,' super separaf
homines et tcr' teientes com' Bucks pried', quo-
rum noroiiia subscribunlur, separai' purlioncs
et denar' summas ad eor' particiilar' iaferins
posit' ad conlribuend' expensis circa provisi»-
nem navigii in eod' brevi menti'iiim'; quas
quidem portiones et den^ir* suminn^, sive sU-
quam inde puicell', nnle eiitum ab udicio meo
vie' com' prxdict', ad mauus meas, vel ad m>-
nus eollector* in ea pane, virtule brevis ult'
meutionat' per me cun&tituj', plieil' iiomines et
ter' tcnentes, aut eor' nliqui', quur' nonusa
subscribuntur, non solverunl, aed eos solvere
recusaver*, viz, Slouke Mandivile, u. John
Hampden esq. et tenor al' scbedul' per pra^alf
Hencog' Probf lidelit' relnrn', rt eid' bmi
annex, sequitur etiam in hnc rrrba; vii.
' There is to be accounted, upon bj the a^
' sessors, bigh constables, ptuy cimttsbles
'within tiie said counti^ in general, nbuh
' caunot be accounted for by sir Peter T«np>,
' being, as it is conceived, sliort four pouuds.'
Ego Ueneagius Proby arm', qui fui v.
Bucks :
Aagf'ix, SlC
usque prim
resui dom'
I, ei ab eodem die ( t anno
Marlii tunc prniime k-
queu', dicio domini re^ i
virtute brevis ejusdim domino ree' huic scbe-
dul' annex*, ceitilico, quod homines ci itr*
tenentes com' Bucks pi^', aul eor' altquis,
qunr* nomina in quihusd' scbedul' huic bie«i
annex' eiprimunmr, qui Ki6es^' lucr'per Pe-
irum Temple mil' et baronet' nuper vie' cm'
Bucks prfid', dum in nf&cio vie' tjuMl' com'
■leierit, in separai' denot' porti'inibus, el de-
nar' summis ad eor" separai' noinina sup«Tius
ppsiii, ad contribuend' eipeosis circa pniibi-
onein navigii, virtute et lecuodum ei^ni'
brevis iptius doiuiai r^ e caocrir sua emanat',
et ibidem de recnr^' iriot', vie' dicti ci>m' Bocks
inter alios direct' yeren' dat' quarto die A<i>
gQsti,anno undecimo suprad let', Heneig* Proby
' :' predict' com' Bucks proxime poA
- •• ■ ■ -^ • )■ p, hi]iaiu>i' ah
ISIS] STA'TC "nUALS. 13Ciiam.E3I. lei?.— *.rt*C«f ^/^SB^AfoB^y. [1314
<\a\ He inniiiliito noslrt pred' nd cnntrilmnid'
eren proiision' prft'inisiEir' UEsen' lueriiil, iic <lc-
iiiir' Miper ipiiis sic nisc-^ti' noii miIvpf*, quuiii de
sipjiTal" poriinnibiw et deoar* summi* super bo-
oiinM et tcrr;£ le^ien' illos sic uiierai' (t iin|>o-
^t', necnon crrtificaMiiim quiisriam in scripii&i
virtute brevis itiius rcilurt', et in dicCitin cnucel'
fn ea porlc virtute Ixev'ts ultimo
consiituc', nou sotver', sed caa sohere, recus;i-
vernnl. Etolierius pr»rat'Joliannra Hampden
jieiit similiier aitdit' pr«d' lirpvii de Mittimus,
(fc quo In brefi dc Sciri Fncias pned' fit meii-
tio, et ei legitur iti hcc verba.
M. Carotua Dei t;rntra AiigTiz, Scotiir, Fran-
cis, Ft Hiberoiie Het, fidci derrns;ir, &c. Tlie-
laur* et bamnibus <9e Scnccario luo, saloteni,
Tcnore cojoadam brevis ROstri sob miigno 9i|;i]lo
nostra Aiiflic confect', geren' dai' quarto die
A' gusli, anno regni uobtri nudccimu, in ralulia
CHnceller' nustTE irrotulst', per quod vie' com'
noairi Bucta, ball' et burgen burgi et paroch'
dc Buckingham, major', bail*, ct burdens' buryi
lie Chipping Wicconibe, aliiU Wiocombe, ac
pratna haminibu* in eiad' burgia et parocb', el
niembria eorunif, et in villil de Agmondeshum,
Wendover, et MaHow magna, et in omnibus
■liia burgia, viltia, villacis, hamlei', et aliia loris
hi dicto com' Bucbii, mandnvimne, (plod pro de-
fcnaioiie regni, tuitione maris, aecurliatc subdi-
toruTti nostroTum, ac aalra conductiune nnviiim
« merehnnditarnm ad regnnm nostrum Atiglia
♦eoiCTi', et de eod' nd partes exteras transeuu',
ptrarent iinnm navem de guciTa pnrtagti rjiiad-
ringent' et qninqiinjint' dolior", cum bomiiiibus
(am maipstria peritia, quaiu marinarils vnTeniio-
ribui *t espertis centum et octugiiit' ad niinu*,
tic etiatn tnrinenlts lam mnjoribus qunm mino-
ribus, puJTere turmetitarii'i, ac hnsiis ft tflia,
atih^ucnrmiiiarisiieceas9r'pro(!uerrasafficien',
^ tot haminea compelen', tt nbiiide in vi^int'
et aex septimnn', ad custng' 'boininum ft ten'
t«nen' biiipii', vill', viUal', hamlet', rt af locor'
•upr* mentionnf in dicto com' Bucko, tarn in
TJctnalibas, qunm in boniinum salar', et id' ad
pierrani necwaai' per tempus illud anpcrdcfen-
Bionem marii in obaequio nostio, \a comiiiva
«oatod'niHriamotatur',ot adportum dePorIsm',
circa teaipua in eod' breri liiiiit.-it', dnci bcc-
fenL Qiiodque respective nssiderent omnea
bominea in prspd' bnrg* et parocb' de Bucking-
ham, ct buig' de Cnipping Wiccoinlw, aliaa
WicCombe, et cxteria biirgis, villis, villat', lium-
lA' el aliia tocia in dicto com* Bucks, et meni-
bris eorund', ct ter* tenentea in eiad", nd contri-
kuend' expend circa provisioneni pnimisaor ,
el ad cjitera faciend' et exequcnd', moilo et for-
ma prout per Idem breve prrecept' fijit; vobis
mittimas preacnlibua inter claus' breve, pro eo
Auod salus regni iioairi Angliae, et populi coatri
^juadem periclitabalur, quod e dicta cancellar'
ftoalra emnnati narravimut, inter nl' brevia ad
ftujuamodi provisionem et asws^amcnt' Tadend'
per»iiiguloscom',ci¥itat',bur((',viH*villai',ham-
let', et locoa repni noatri Angli« et VVailiaj, et
inembris-eoruiid', e caiiceliar nostr" pr«d' nu-
^remanat', el ibidem similiter irrol'; acetiam
dand dictum al' breve nosirum nd cerliGcand*
nubis in eand' cancellar*, laai de nominibui ho-
ihinura et terr' teneiid' in prad' burg" et paroch"
de Buckingham, el bur^ de Chipping Wic-
combe, alias Wiccombe, el in czteria burgia,
villil, villat', haoilet' et locis dicti com' Bucka,
VOL. III.
Vobi,
itibua inicrclaus', mandnnits, quod inspcctis
brciibus el cerlificut' prard', ulterius inde pro
leratiune, colleciionc, bt lecipiinne omnium et
singularum pripd' donar' sominar' de prwd' eon-
tributionibus adhuc non tiiliu', lieH fac', prout
de jure et secundum le^cm et consuetudinem
regni nosir' An^lia; fueril faciend'. Teste tue-
ipsc Hpud Weatni' quiiito die Maii, anno regni
noatri lettjo drcimu. Eire. Sicutin eiddem
brevibus, et scbednl' eisd' annex' in Scaccar'
dicti doin' regit certiAcat', et ibidem in custod'
Ilemomoralor' ejuad' dnm' r^is de record' rfr-
manen' plcpius continetur. Quibus leotia, aa-
ditis, el per ipauni intelteclia, idem Johannes
qu trllur, se colore separal' hrev*, return' eorund',
et achedul' eiail' anneaat', graviier veiat' fore et
inquietal', et Iioc minu! juste; quin didt,quod
pra>d' aeparal' brevia supcrius mciitionat', r^
turn' eorund', et scliednl' elsdem annexat', ma-
icriii in eisd* content,' minus Eufficien' in lege
exislunt ad onerand' ipaum Johannem Ilaoip-
den de nut cum solutione pried' aumin' vigiut^
aolid' super ipaum in echedul' prxd, mbdo et
fonnn prntd', laxal' et nase^sat', aut allcii^s ind«
parcelt, nd qux ipse iiecetse null haliei, nee
prr legem terr' tenetur respondere. tlnde ob
iiiiinllicien'prj^d'separnrbreTium tuperiusmen'
tionai', return' erirund', schedul' eisdem annex',
Re materia^ in eisdpm brevibus ac achedul' cnn-
lenl', ipse idem Johamics Hampden pctii judi-
ciurn, si rticrus doiiiiniia res nunc ipsuni de pr»d*
vi^iiit' solid', nut nliqua iode parcell', ulteriut
ItOBI
velic
T tloLBog
Et Johnnnea B.inks mil' Attorn' doni' regis
nunc general', qui pro eodem domino rege se-
quitur, prxneua hie in cur' od cund' diem in piT>-
priu persona sua, dicit, quod pried' separul' i>re-
via,et return' eorU'<d',ac schedul' prcd' dadem
nnnex', mntcriaq; in ei^jdem content', sutlknen'
ill leite exislunt ad pned' Jolian' Hampden de
pned' viKinl' solid' suprr ipwim in fbm.-a et«z
causa prasd' nssessat'onerHnd': qunm qutdem
maleriacn ipse diclus Atlomnt' dicti dom re)>:i
general', pro eodnn dom' regs paratut ent veri-
licare; qunniq ; luntcrinm przd' Jobanlia
Mam[iden iioii didicii, pre ad enm aliqualiter
respondit, aed verilicatjr>iLtm illam admiilers
omninn recu<iai : pro eodem dom' rege idcircn
petit judicium, et quod p-sd' Jolian nes Hamp-
den de eisd' tigiot" solid' oneretur, et indeia-.
iiaf;tciai, &c. Johannes Ba>is.
A Copy of iheJutK)ur.!iT,nt it is entered upon
JCeroid, in pnrsoance ol' the said muiioo,
and accordinjt tu tlie major TOtes.
Et quia bamnes hie se sdvisare volunt [}e et
super praunissis, priuiq' judicium inde reddant.
ISIS] STATETHUIS, 13Chables1. lflS7^7Ha/«^Liffii(nt.«dirafl««, [VIA
dies dm' ett prsrdt' Juhaimi llompilen eod' sta-
ta quo nunc liic in oct^ib' jjncti Miciinelis, u(
dicti hurunu bc iii<eri:ii de li&deui prxmiuit ud-
'vis:ire p'-9am[. Bc cum jiisticiur' de titn'q' bunco
lude delibiTi ni, no quod iideiu biiiuaes liic inde
nonriu'n, &c. Et iiupei' boc ciinrordal' e^i inler
liaroiies iiic, uni ei iuMru»u die.' Aitnrn't' did'
domini.ei' Rfncral', (|uiNi diit' Aitoniai' prad'
Johnniies Hampden, et coDiiliaiiur' in ieue p(-
ritor' ^uBdeui Johunnis Hampden, qu'id nliqui
le^is periti, tam de consilio et piirte diet' doiiii-
Di re/, quam de coiiBilin et parte itirl' Jolian-
nis Ilaiiipdeii, de pmd" inaterij in lege, et cic-
terit pneinisiis in r^iwra hnjus Scacc>irii, vul-
gnritur uuncupat' Tlii; Excl^equer Chamber, co-
ram iisd' baruiiil'Ut, B»id(iiiibut eis justicijt*
de utroque banco, ar^umenUrt interim publico
audiauiur. Ad quos rjuiil' octebiig knncti Mi-
chuelis pncd' Jol.aunes Hiimpden vemc liic ui
priui. £l quia baronet liic ultrrius x ad\aan
vnhint d:' et iJipct prxmi^sii, priu'q' judicium
tnde reddauc, dies ulteiius dat' ett pr^hi* Jiy-
hnnni Hampden, cod' statu quo nunc b:c us4]'
in octab' 3uiii:cl Hilnrii, ut aliqui Ic^es pcriu,,
tam de consiUo et parte diet' domini re^', quaoi
de canailio ct parte diet' Johnnnii Hampden, de
Jirsd' materia in lege, ct oeteKs pnentisua, iu
pntd' cuiner' liulm .Scdccarii, coram baronibus
pr«d', DSsidetitibug eis prced' jotticinr' de utro'
que banco, nra;umen(ari interim jjublice audi-
antiir; nc iid' barnoes, cum iisd' justiciar* inde
(fclibereiit, eo quod nuUus in lege peritus, vel
!c eonsilio ipsius domini reg', vlI de coiisilio
'■— ■"'— "isHaropdtn adlm
Tories hie indi
medio tenipure in prsEd'octub' sancti Micliaelis,
tt prxd' uctah' tancti Hilnrii, tum Aitumat' et
Soliciutor Ip<>iu3 domini r»g', quiim duo le^'S
periti de ci>iisilio pntd' Joluinnis Hampden, in
exMiissis e>i^te^' ex parte ejiisd' Joliannii
ampden, duodecim lepnrnl' iliebui in pr^d'
earner' Scnccsrii, covam boronihus liirjus Srac-
carii, nisideniibus eis time ibid' prsd' justicit
de utroq' baiio, dc pntd' mater' in lige et ci
teti«pr3;mi^>(recilaia tunc ibid' record' pned';
ad Ui^m rt suaunat' aigunentari qvif ' nM
ex ulraq' parte diccre poiuiucDI ant •«taer',
palam M tin^ulatim audit' fiier'. Ex pntd' Al-
,it' et Scil.citaior c>^nend' diieisa ei qaui-
ma reconl', Lretu, f^immisiioit', et i'ixm-
tam hiijus S- occarii, quam cui' CanceUir',
de Banro tle^', ac de Coir.mu' Bun',
it' in lege, et cetera prcmista iaseptilf
brivibus return', et scliedui spr«d' coiiteDi',a
parte diet' domini reg' prohan', confirmn',rt
miinuteneii', ad tunc ei ibid' produxer*, oitn-
ser', et eipusueH; et ad pned' octabai niKU
Hilar' pr*d' Johannes Hampden wnit liie m
prills, ct quia b»rones liic ulterins se ti'inn
voluDt de et super pmrnisKts prinaqaam jadi-
lum inde reddunt, dies ulteriusdut'tM ptifa'
aliannillampdeii, end' statu quo nunc hie, ns^
diePasclism quindeciindies,utdictib.iMwt
itfrim, cum pnefai' justiciar' de ulroq'buan
ulterins delibrreni, GO auod iidem bargnnlk
inde D'lDdum, &e, Aa quern diem prcil']»>
liannes Hnnipdeii venit hie ui priui, et qai> l»-
ullerius se adritarc Tuluntdeettvprt
pribsquam judicium inde rtddaH,
(lies ulieriusdai'e^i ei'l' Julianni, end' statu om
nunc hie, o<q' in cro' sancis Tnn', et diet' it-
tone* iiiierim cum przlat' juMiciat' de ntre^
banco ulteriiii inde delibtrrnt, eo quod uiim
ju--ticinr' hie inde nmid urn, &c. Ad qurmlicB
prsd' Johannes llampHen venit hie ut prissil
nuper biic Ti-is iirKiniMHS, et per baioiirs hie
plcnc iuldlec iis,I|al>it>H|Ue inde malnra dtlibe-
raiiabe cum pia^f justiciar' de utroqae hues,
ac post argumenta Uun pereosd' jus[iriH(',qi>>i
per prxil* hiiTones MUiiulatim in pijci' ranti'
Scaccarii pu>'lice inde iiicl', viiitiur niddnn-
nibus, ex advisiment') jnsiiciar' pisd', qitiiil v-
parnl' brevia pr^il', el return' enrund', ac wbe-
dul» pied' eisd' ounex', ac mntei' iii,ei^c<^
tent', aitliicii n' in l^e cxisiuiit ad piclu'Jc-
hanneiu Hani(>rieii dt prcd' vigint, solid,' »!«
ipsuin in forma et ex causa prcd' aitesw' out-
rand'. Idcn coDiideiBt' est ]>er cosd' tiufanv
qnud praed' Johannts Hampden deeisd'n^
solid' uneretur, ttexinde satisfaciel, &c.
148. The Trial of John Lilburx and .Fobn Whabtos, for Priuling
and Publishing Seditious lk>oks. In the Star-Chamber:
13 CnAdLES 1. A. D. 1637. [Written by John Lilbiirn]
Before the r^nlArchbidiopofCanterhurj;
the Lord-Keeper, Inrd Coventrr; the lord-
Treasurer, bi-liop of Dimion; the lord Privy-
Sent, earl of ^[Bndlellle^; the Earl-Marahal,
earl of Arnndel; the earl of Snlibbiirj' ; the
earl of Uorsei ; lord C'otiingion; lord Ne«r-
burgh; LnrdCbief- Justice Btainslon; sirHenry
Voiic; Mr. Secretary Cooke; Mr. Secrelarj
Windebank ; Jud^e Jones, and others.
Upon I'ucsdn; llie 1 1th or 13(li Dec. 1037,
I ••a; trcnchetoiisl; and Judaslv betrayed (by
«ne timl I suppriserl to be my tricndj iuto the
liands of 'he pursuivanf, with four of liis a<-siit-
WBis, ss I was walking in Sopcrlane with oue
John Chilbume, ai-rvant to old Mr. J«lin
Wharton, in Bona-lane, a bot-pnswr. And
about twelve of the clock the next dai, I "o
committed to the Gutc-himse. lij >ir Job
Lamb, ibe prelnte of CnnterbnrT'srbantctlir,
with iithers, nithnut any exanimalion itiU,
for tending nf fsciiouB and scandahiui Bub
nut of Holland into England. And liariiig aot
been at ibc foresaid prison above three isjt, '
was remoTrd, by a warrant frum the Luradf
the Council, t'l the Fleet, where Toawnmia.
And after my bemg tliere Mwne time, I if •
I'etition to ilie Lords of the Council for »•
liber^; and their Answer to it was, tbdt
1317] STATETRIAIS, ISChableiI. 1637— jarpuWaAwf Ssfi/iowBoati. (I3»
•bould be rxanuncd \ttfan lii
kiuK'i Att.iruey i Tlie copy o
Upon Tuesday the 14ih Jdn. 1837, I was
h«ci to sir J. .fan lltinki ihe Atmriiey-GeiKrai's
cIioiiiher,(iiowUril Cliief-Jusiiceof (he Courl
of Ple«-) Hnd wm refcmd . to be exaioineil by
Mr. Coci.sliey tilt obief clt-rfc ; and al oijr first
coining Kigetiier, he did kindly intrent ine, and
(DMle me tit dumi liy him, and put on my hat,
aod h^an witb me after this miuiner; Mr.
Ulbutn, Hhalit your Cliriiiian namef I said
Jobn. — Did yijo Jive iu London befcre jou
wwnt ion> Hullaiid f Yen, iJi;it I did.— VViicref
NearLondon-sfine.— Wiih wlionithere? With
Mr. Thomas He-son.— What trade is lie? A
dealer i>i dutb, f told htm. — How Ion;; did you
Mrvehim^ About five yean, — How came you
Id part? After tliis maaner: [ perceiving my
naMer had an intentron (o leave off his trade,
X often moved liim that I might harcmy libeit;,
eo provide ftw myaeir, and at ilia last lie con-
descended uuio it: and ao 1 went inio ihe-
country, to hare the consent of my friends;
ud after ti)at went iuio Hollnnd.— Where
were ynu there? At Ri.ttentiim.—A nd from
tbeace yuu went to Amsterdam? Yes, I wus
Qt AniaierdDm. —What books did you see in
UolUrid? Great siore of lionks, for in e'cry
boukiii:ller'» shop ns I cdiqc in, clicre were greut
store of books. — I linow that, but I n^ you, if
^u did see Dr. Bastwick's Answer to my mns-
ter'sI„fornntioD,anda Book catted hisLiun)?
Yes, I saw tliem there; and if you pteiise to go
thitlier, jou may buy an liundred of tliem at
th« bookselleri, if you bare a mind to ttiem. —
Havt you seen the " Unbislmping of Timothy
and Titus," the " Lookii^-s'"*'," and n " 8re-
•iaie of tlie Biibop'i late Proceodings"? Yes, 1
liave, and thuse alsn you may hiive there, if
7<w pleasa lo send for tbem. — Who printed all
those books? I do not know. — Who was nt the
charges of printing ihem? Of that I am q^no-
raut.— But did you not send nver some of llirse
books? I sent not any of tbem over. — Do you
Inow one H^irgu^t there? Yes, I did ste such a
DiBD.— Wliere did yoo see him ? I met with
bun one day sccideuullv at Amsterdam.— How
oft did you see him tbere? Twice 'ujioii one
day.— But did not be send nierboak*? If he
did, it is nothing to me, K>r liia doings are un-
known to me. — But be wrote a letter, by vour
directioits, did he not? What he writ overl
know no more than you.— But did you see
hint no where else lliere? Yes, I saw him at
Rotierdnm. — What cunfurence had you with
liim? Very little: but why do ynu nak me all
these quttUoos ?- ibete are beside the mater
of lay imprisonment; I pray come to the thing
for which I am accused, and imprisoned. — No,
ihese are not betide tbebusincs), but do twiong
to tlie thing for which you are imprisoned.
But tlo you kobw of any that sent orer any
books? Wbai other men did, doth not belong
to me to know ur search into; siifRcient it is
lor me to look well tn my own occasions. —
Well, b«ra it tbe Exaaunatioii of one £dn)und
Chillingtnn, do you know such a one ? Yes, —
How long hnve you been acquainted with tiimf
A little l»fore I »ent ewny, but how long, I do
not certainly know.— Do you knuw one John
Wharton? No.— Do you not? he -is a hot-
presser.— I know liirrt, but I do not well re-
member his other- name.— How long huveyou
been acquninicd Hiih him, and how came you
acquainted? I cannot Uell lellyou. — How lung
do yon think? I do not know. — What speeches
tiad you with Ciiillineinn since yon came to
town? 1 am not bound to tell yoti : hut air (a*
I said before) why do you nsk me alt these ques*
lioDS? these are nothing pi-rtineiit t^'myim-
prisonmeiil, fnr I am nut imprisoned for know-
ing and talking with such and such men, but
for sending iivt-r Books; and therefore I am
not willing to answer you to any more of tbesa
qnesttons, because I see you go about by ihis
ExamiDucion t>i ensnare me: for seeing cha
things for which I am imprisoned cannot bo
proved against me, you will get other matter
outof my examinatiuD: and therefore if you
will not ask nie al>oni the thing laid to my
charge, I shall answer no more : but if you will
ask of that, I shall titen answer you, and do
answer that for the thing for which I em im-
prisoned, which is for senHing over books, I nm
clear, for Isent none; and of any other mailer
that you fiave to accuse me of, 1 know it i$
warrantable hy the law of God, and I think by
ibe law of tlu land, that I may stand upon my
just defence, and not answer to your inierroni-
tories; and that my accuters ought to ba
brought face to face, to justify what they ac-
cuse me of. And this is all the answer that ht
tbe present I am willing to make : and if you
ask me of any mure things, I shall answer you
witb silence. — At this he was eiceeding angry,
and said, there would be a course tnkeu witb
nie to make me answer, I told him, I did DOE
regard what course tliey would take with me ;
only this I desire you (u take notice of, that I
du not refuse to an&wtr out of any contempt,
hut only because ] nm ignorant ofniiat belongs
(o an Eiaminatiofl, (fur this is the first time
that ever I waseiamined;) and therefore lam
unwilling to answer to any impeninent quet^
tions, for fear that with my answer I may do
myself hurt — This is not tbe way to gel liberty :
I had thought you would have nnswered punc-
tually, that so you might have been diipaicheii
as shortly ns might be. I have answered punc-
tually lo the thing for which I ani imprisoneit
and more I bid not bound t:; enswe i, and for
my liberty I must wait God's time. — You had
better answer, fnr 1 have t«o ExamiimtioDs
wherein you are accused. Of wliat am I ac-
cused ? — Chillington htch accused you for print*
ing tea or twelve itiousand of books in Holland,
and that they stand ynu in aboal 001. and that
you bad a chamber at Mr. John Foot's at Delft,
where he thinks the books were kept, and that .
you would have primed the ** Unrnaskisf; of iha
Mystery of Iniquity," if you n>ald have got •
true cony of it. I do not beHeve ihat Chilling-
tooMid any luch ifaings; and ifbcdid,Iknoir
1319] STATE TRIALS, 13 Chaeles I. H
and Dm sure, iliaE they nre all of tJiem lies. —
Yuu received mani-y ul'Mr. \\ liurtou <diir^ jou
came to t..« n, dia you ni.i f « but if 1 did?— It
was Ibr tj»u>^a? I rlu uut sny su. — Far wliutsurt
the present i hate lasMwcs; and if
([ill; jL^u coiitfciit, ivsll mill eo"d; if not, do
wlutyrm [.lease.— If JOU iviii not ansHtr no
more (hire L liild liim, if L lind Uiouglit lie
would luivt iu^Aied upnci luch iiiipertioent ijue»-
tioiit, 1 wouUJ not Lute giteii liiiD so miiny sD-
Bn'er!i) ne liave pntver to trnd you to tlie pia<:e
from hIiciiuc you came. You muy du your
Ekasure, said 1. — So he chilled in anger for inv
et'per, aud gaic liiiu a strict diar^e to tuok
wditoiue. I said, tliey iiLould nut fear my
ruuuiiif; iiway. Aud so I was sent donn to sir
Jolin U.inks liimself. And nfter he had read
nvLT ith^it iiis iuBii had ncit, he called me in,
-Hiid said, I.i.c[ccive you are wuwilliag to cou-
Cet» the iruth.
Litburn. No, sir, I have spobea the truth.
Sir Jtihii Bankt. Tliisis youi Kxatiiiantiun is it
not? What your iiiu.n Imth writ, 1 do nut know.
— Came near, audit e that I read ii right. Sir, I
dpiiqtuv-'D it for my Kiaminatiou, foryuur mnu
hath writ nhat ic pleased him, and hath miC
irrit my uuiwer ; fur iny nniMier was to him,
aud ^ ii is ti) you, thji for ihe thiog^for which
1 am imprisoned (nliich ii for sending over
Boohs) I am clear, for I did - not send any, and
for any other matter that is laid to my
charge, I know it is wnrrani»bleby the law of
God, and I think by the Uw of tJie land, fur
me to stand upon my just defence, mid that
11^ accusers ought to he brought face to f-ice,
to justify what they accuse me of: and this ii
uU that I bnve to sny Ibr the presenc, — You
most set your hand to this your l-ixaimnation.
1 liesecch you, sir, pnrdou ine, I will set my
liaud 10 nothing but » hat I lia.ve now said. — So
he look the pen und wiir, 'Ihe examined is
■ uiiAilling to an:>,.i^r i" any tl.ing but thai fur
■;*hich ho is inipi ironed.' ^iow you wiil set
your baud to it; I inn not wilU^, in r<[;,ini I
douotuuu tltut wliich your ia:>n hath wiit ;
hut if It ^ItusL' you tu liuid mf the peu, 1 nili
wiiieiny answer, and set iny hand to it. So
)it.-i;.ive me the pe:i, and I beuuu to iiriie thus:
•The Answer of me. Jolm Liihu.u, if,' and here
he took the psu I'ruui ine, and saiil' tie cpuld
not stay, that was sutlicienl. Then one of my
keejies asked him if they might huie me back
nt[dui * And be said yea; lor he had iio order
And i-boaL ten or twelve days after, I was
h«d forth til Grt>y>-Inii itgain ; and vihe;. I
came til. re, I Ha^ h;iil to the Slui^C htimher
olhte ; ami being tlirru, as the order is, I
mosicnttr my nppear.'nce, t|iej told me. I
saidj'lo rthut? I'ur [ «n» never served with
anrsubpu'nu; neither was r litre any hill pte-
fir're.l uniiinst me, that I did hear uf. One of
the ricrki t Id nie, 1 unist tirst he eMipiiued,
■11.1 th.-n sr Julm t-oi.ld make ilie MU. It
•eeius (h>:y kid uo ([ruiUMkd tuiiiter Hjtaiutt me
n— Trial qf^bunt, and iriartem, [I3»
for 10 write a bill, nud tbeMfbi* Uwy MM
about tu make ipe belray my own innucc-ncy,
that to they might firound the bill upon my obb
words : and *t ite euiranco of my i^>pi-ara(ice,
the cU-rb nod 1 had n d^al of disconrae, (tfaa
puFticulars whereof for brevity sake 1 im>«
omit ;) but in the conplusiuu he dcoiaodEd mo-
ney of me, lor eiiteiiuu of my appearance : and
I tuhl Iiiui i was but a young irbii, mad a pii-
souer, and money was nut very pleutiJul mtk
me, and tlierofore I would not piirt with amy
money upon such terms. Well (said he) if yon
will not p»y your fee. 1 will dasli out yosr name
Kf^ia. Do Hh.it ytia please (said I) I core not
if yuu do ; so lie made complaint to Mr. Goad,
llic master of the odice, that I refused to eiitw
my appeuraiici-. Aud then I woi brought be-
fute him, and be demanded iif mc wUatu^ i.»-
siuesa wan? I told him, 1 had no business «ith
liiiii, but I was ft prisouer in the Fleet, and was
sent fur, but to whom and tu whateiid I do not
know, and ihurefore if he had aethin^ lo aay id
me, I had do business aith him. Ajod um
one of the clerks said, I was lo be examined.
Tlieu Mt. Unad said, tender him the book : so
I looked Biiother ».iy, as though I did not ^iv«
enrtii nliat be saidj and (hen he bul meptiiL
nS my gkive, anil Uy my hand upon ibe boiiK.
VViint to do, sr f satd 1. You mu^t swear,
sind hE>. To » hut ? ' That you shall make traa
' answer to all things that nre atkcd too."
Must 1 so, sir f but bei'ore I swe&r, I wdl knoa
Vj what I mujt swear. As ioob as you lane
sworn, you ihall, but not befar«,-^T<» that I
miswei'ed, ^r, 1 lun but a ynuni^ man, artd du not
iicll kn;»w «hubeU>ng« to ihe iia:u(e ot an
oath, and tlierofure betbie I snenr, [ vill be
better adviae't. — Saith he, bow ohJ «re yocf
About 10 ji.'an oid, I tuld liini. — Y'>u have i«-
ceived the Sacmmeut, have you nut ? Vet, lint
1 have. — Aud you liave beard ihe miniiiers de-
liver God's- word, have you not ? I liav« houd
giehsD? Ye«, lb«t 1 do.-
hiive received ibe Socrament, and have tseanl
sermaii'^ yet it diith iioC therdbre follun ibat
I am biiuLid to take an oaih, nbiCb I duubt of
the lawfuluete uf. — I/uk you here, said be
(aud will) Ihat)ie opened the book), ne <lesira
you to swenr by no loreif;n ibingT ^M to swear
l>y>?he holy Evnoielisls. — Sir, 1 du not (k>ubs
Of question iliut; Iquestjenhowlawfulitii far
loe lo swear lui do nut kaaw wliac — So stmc
uf liie cieiks liegau (o reason with me, asdtoU
roe every. one touk that nath: and would I fae
wiser than all ijfi^t men ? I told them, it Mide
no mntier to me whu other men d<i; but bc-
liire I swear, I will know better grounds aad
reasons than other meo\ practices, to cuDvince
me cif the lawfulness of sui b aa oat. , tu anear
I do not know to ■»hM.-~»ty Mr. Owtd bid
them holO (heir pence, lie w'a& nut lo cnnviocc
any uui1*> conscience of the lawlulneM of it,
iiuC uiily to utTer and tender it. M ill you take
it or no, naitii he * Sir, I will be better adtiscd
first: Whereupoa there uasa iues<>eni;er stot
(o sir Jubn Stmks, i« certify him, that i wmiM
1301] ^A'TETBUl^, ISChablesI. laSL—MpMuHftg-Seiiiioittnaoh. [U
naS take ihe Scar-Cfaioiber a*lb i and riso to
kooni of bioi wba[ should be dpne wiili tne. So
I k>uke<l 1 should be couuuitted clo»e priHuier,
or wane. And tibiHX ui hcuii after cam* Mr.
Cociisht:j,»ir Johii'i chief derh ; Whal.Bud ha,
Bdx. Lilbuni, it gec^ns you will not take jaat
Oat)i, to mnke true witwer^ 1 laid hint, i
«Tould bs better udviaed bdbrc I, took uich an
oMh. Wdi tkeii, saitb be, you muM go from
whence jrou came.
Upon Hiidajr the 9tb of Febniair, ii
momiQg, one of die officers a( ilie Fleet
the
o my chamber, and bid ute get up and make
ate leaiy tu go ts tbe Scai-Chuiober-llar Tonb-
vi^li. I liaviug DO time to lit myell, uude
nte ceady iu all boats to go. And being at tbe
bar, air Jokii Baiiki lard a vei bal arcusauoa
agnintt ine; wbicb nas, that I lefkued lo'an-
swci, and alio to enter xoif appearance, and
chat I lefosed to take the Star-Chaaib*r oath :
nud then nasrcad tbeafftdavit of oneEdntond
CbiUiDeton, buttur-s^Ucr, made against Mr.
Jobn Wharton and mjseil': the sum ul'wbicb
was,tbat lie and 1 badprintedat Ituttcrdam, in
Holhutd, Dr. Uastwick'a Answer, and liii Lita-
ny, and dii'enuiber ac^nduluus Books: And
teen nfier I nlitninod leave to speak, I laid,
&ly noble lord&, as for that ofiidavi^ it is a most
fkCie \je uod uutrite.
Lord-Keepen. Wb; will ynii not nnswcr }
UHmrM. My Iwiiournble lord, I liai'e an-
sarered fuller bctbre sir John Banks to all tliins]
tkat belong to nie to answer unto i and fr>r
oilier t)ii[i|i9, nhicti concern other nien, I have
nothing U) do witii tliem, — But v.]iy do yoii re-
ftise to liikc tlie Star-(Jbuiiibcr oaih ? Most
noble lord, I refuied npon cbii ground, because
that when 1 Vtas eiomineri, though 1 had fuUj
(uiswered all ibin^athai beloiijied to me to an-
s%vcr unto, and had cleared oiyaelf of the thing
for wiilcli I um iinpriwoed, which was [.it send-
ing Books out of I liillMid, yet that would not sa-
tjily and gii^ content, but nther (liiit;:^ uere put
unto me, concerning oiher meti, to iiwnare me,
tiilbr
U'hic
perceiving refaaed, being not boutid
la such rhiiiga as do nut belong unto me.
And n'lthol 1 pcrceiced tlic onth tu be an oath
of inquiry; and ttir tbe lartfolness of which datli,
I have no warrant ; and ujion these grounds I
did and do atill refuip tbe oath. — U^ion this
some uf tlie king's couossl and some of tUe
lords ipoke; '^Vould 1 condemn and contradict
the laws ut' the land, and bewiterthnn all other
men to refnse th>tt which is ibe oath of the
CCUrt, adaiii>i^tcred luito all that Come tliere f
• Lurd Keeper. Well ; tender him the hook.
--I utandiiig aj-uiost the prelate of Cnnterbury's
back, he looke<l ortr his shoulder at me, and
bid me pull off mv glove, and lay my hand upon
the book. Unto whom I replied, Sir,I will nut
swear; and then direi'ting my speech imto the
lord), [ said, Most honourable and noble lords,
with all reverence and submission unto your
bonour?, submittln; my body unto your lord-
Wiips pleasiu*, and whatsoever you pleaae to
iaflict upon it, yet mou I refuse the oolh.
My Ixtnh, said the Arcb iV«laie, (in a d».
riding manner) do you bear him P he saitb, with
all ECTereuce and suboiiauon bo reliitetli tb«
Well, come, come, (raid my Lord Keeyef)^
submit yourself uoio the court.
Lilttirn. Most noble lords, with all wiQi/ig-
ness,I stihmit my body untoyiiur hououn plea-
sure ; but for any other submission, most ho-
nourable lords, 1 am conscioos unto nyiel^
that I have done notlting that dntb deserve ■
cooventicm before tbis illustrious aitembky ;
and tbereOu^ for me to submit is to submit I
do not know whctefore.
Sari of Donct. M/ torda, (his is on* of
their private spirits ; do you hear bun, huw he
Etnndsin hisovio iuiTi&cation? Weil, my lords,
said ibe great prelate, this fellow (mesniog uo)
hath been one of tbe notoriousest diapeiaers of
libellousBooks tbatiain ibe kingdom; and that
is tbe fstber of them all (pointing to old Mr.
Wharton).
Liliur». Sir, I know you are not able lo
prove, and to make that nmd which juu have
said. — I have testimony of it, said be. Then,
said I, produce them in the face of th« open
court, that we may see ubat they have tu ac-
cuse me of; and lam ready here to answer for
myself, and tu make my Just defence. — With
this he was silent, and said not one word more
to me ; and then they asked my fellow soldier,
old Mr. Wbariou, whether he would take the
Oath; which be refuted, and began to itU then
of the Diahop'a cruelly towards him; and that
they had had him in five several prisons withi*
the^e two years, for rcRisiiig the Uatb. — And
then there was bilence ; after which was read
how tbe court had proceeded agninsl some that
had kttboured Jesuits aad SinniiiaTy-pTietCB
(those traitors) who refused to be exaniniid
upon OBlh ; and in regard thai we refused like-
wise to be examined upon iiatli, it was £t, ihey
s:iid, that we should be proceeded against, a«
they were. So they were llie prtcFdeot by
winch we were ceniured, thouf^b their cause
nod ours be much unlike, in rogoi'd theirs were
little better th»n treason; hot our crime was so
far from treason that it was neitlier against the
glory of God, tbe honour of Uiekiti^, the laws of
the laud, nor the good of the coBunoii wealth : but
rather for the maintaining of the lionnnr of tkeni
all, as all those that read the books without pai^
tial affections and ptejudicate hearts can wit-
ness and declare ; and if tbe books had badany
treason.or any thing against tbe law of llie Una
in tbem, yet we were but tuppooedlv guilty ; for
the things were never fully prove<i agaitwt us.
Indeed thehe were two Oath* read in court,
which they said were awuro ageiost us by ona
man, but he was never brought face to face, and
in both his oaths he hath forsworn himself, as
in many particulars thereof we are both able to
make good. — In tlie conclutinn, my Ijird Keep-
er stond up, and said, My Lords, f hold ii St,
that they should be botii for ifiieir contempt
committed close prisoners till I'uealay neat ;
BJ>d if tbey do not conform tbemselvc* faciwtit^
o fciHidi ndtiii
< Upon Ini;>:
lat' coram ConcUio ibidan 9.
r. nnim IS Cur. rciis.
mrion tiiii dii;^ '» t'li^ hnnour-
ir John Bunks, knt£bt. his mn-
'jcij* Auumey (icnerLl, That JoIid Lilburn
' anil Junii Wburion, nlio ure non ■( the bar
* of lliis court, were (he 21ih of January Inst
< onlfied ti) be examined upoo lncerioi;atiiriif9
' tuiichini tlieir unlawful iirinCiiie, publishing,
* wad itL'pi-rsm^ of libellous and iiedititiusBooLs,
* caulror; \o ttie decree ol' this (Jouit, which
* WHS vcnGeil by aihiUTit; and being brought
< u^ to the nfiice to appear and be eiamined
' aecoriliD^y, the said Lilburn refuied to ap-
' pear, auil bmh of them denied to tuke an Oath
' to malieiuis'ier to Iiiterratiatories, aaappean
* by Certificate of Mr. Guad: it vita hunihlv
* prayed C ai their appearance may lie recorded,
* tliev being nun present in court, and tbat they
< may now bate iheir oailu lendered unto ihein ;
' which if they sliall refute to t.ikp, that ihcn
' this court will proceed to ■ censure agninst
< tbein (or tLcir high contempt therrb, na hath
■ be.'Q used in like ca«e>, which the coart held
■ fit: and h ith therefore ordered, 1 bat their ap-
' peftrance shall lie recorded, as is desired. And
' for that tlie said Deliuqui-nti du now Bgaiu
' most contemptuously refuse to tnke their Oaths
' no* tendered to them in open court, tlitir
' lordsJiips have fiirtber ordered. That tlie said
' Lilburn and WliBrtnn shnll be remanded to
' the prison of the Fleet, there tn rcrnnin clote
' prisoners until ihcy conibmi themselves in
' obedience to take their oatlis, and be exa-
' milted; and that anlesa they do take their
' ojths, and yield to be einmiiied by Monday
' night ne»t, theii lordships will, on tfie last lit-
' tiuE of thig term, pniceed to ceniure at^ainsl
* tliem for their cunteinpis therein, as is de-
And upon Mimdny after vce were hod to
GrayVInn, and I beint the first there, Mr.
Guad Mid to me, according to the lord* order
upon Friday last, I have sent for you to tender
the Outh unto you.— Sir, I beseech you, let me
lienr the lotds order. So he caused it to be read
uDto me,and then tendered me the hook. Well,
■ir, said [, I am of the rame mind 1 itaa ; and
withal I unilerataiid, that ibis Oath is one and
the same with the Uit;h Comraiuion Ooih,
which Oath I know to, he both against the law
of God, and the law of the land; and therefoie
in brief I dnre not lake the oath, thuugli I suffer
death for the refu'.al of it. Well, said he, I did
not send for ^'lu to dispute with ynu about the
lawfulness ot it, but only accordiug to uy plnce
to teuder it unto you.— Sir, I dare not take it,
though I lose luy life fur the refusHl of it. Sn
he Mid. he Itad no more to say to me ; and I
took ny leave of him, and cuoe away. And
13^] STATE TRIALS, Id Chahles 1.1637.— 7na/Q^LiJh(ni,aMlfPWMa, [l»i
thii and then to tabe ibe Onlh, and yield to be
examined liefiie Mr. Goad, then that they
■ball be lirnaglit liither af :iii>, and censured, and
made nn eiampU'. Unni which they all agreed;
iiiit*edclo»e prisoners, a hd
after that, came the old man,
nnd it mas tendered unto him, which be tehe-
ed to take : and, as he halh told me, be de-
clined unto him faciw tlie bi^ops bad liim ei^M
times in prison for the refusal uf it, and he imi
suffered the bishops merciless txuelly for nisny
years together, unU be would now uem taLe
it as Ion; as he lived ; and withal told faim,
that if (here were a cart reiidy at the door to
carry liim to Tyburn, he would be hanged, be-
fore ever he nunid take it. And ttiis waa that
day') biisiuess.
Upon the next morning, Feb. 13, aboat sevea
B-clock, we were bad to ihe Scar-Cbamber Bar
again, to receive out Censure; and st'>od hi
the bar about t^o houn betbre air Jolm Banks
came: but at last he began b» accusatiba
-igainst ns. that we did still continue m our
tbroier stubbornness. And a\ta then> wa* ano-
ther Atbdatit of the foresaid Edmund Chillini^
tun's read against ui ; tlie sum of which wat,
that I had cunfesaed to him, that 1 bad printed
Dr, Bastwick'fl " Answer tc> sir John llanka'a
Information," and tiia " Litany ;" and anoibci'
Book, " An Answer unto certain Objectioni f
and another Book of his called. " The Vanity
and Impietyof theold LiCaiiy ;" indtfaBtlbad
divers other books of Dr. Baatwick's a-princing.
And that Mr. John Wharton had been at the
charges of printing a Book called, '* A &«tiaie
" of the Bishops late Proceedings ;" and ano-
tlier Book, c^led " Sixteen new Queries," ami
divert other factious Bonks: and that one
James Ouldam, a turner in Wewoiiuatei^-lMll,
had dispersed divere of these Books. Tbm 1
said after this manner : Mo»t noble lonla, I be-
seech vour honoura, that you would be pleased
10 give me leave to speak for myiielf, and lo
make myjost detence; and I shall labour s^
10 ordermj speeches, that I kfaall not give joor
houours any just distaste ; and withal shall do
it with OS much brevity as I can. So hariu^
obtained my desire, I b^n and said, Mj lords,
it seerai there were divers Buoks sent ant of
Holland, which came to the hands of one Ed-
mund LhilliiigtoD, who made this Affidavit
against us ; and, ai I understand, he ddiverad
diver* of these Books unto one John Cbilbume,
servant to this old man Mr. WhanoD ; and his
master being in prison, be dispersed diven of
them for llie foresnid Chillineton's u>e; wbeie-
upon the Books were taken in his cuiitady : fae
being found dispcrsiiiti of them, gues lo one
Smith, a taylor, in Bridewell, (a* I am inlom-
ed) and desires him to get bis (>eace made witb
liie bishops. Whereupon lie covenaats wiik
some of the bishops creatures to betray me inu
I heir hands, being newly come out of lliiUuii^
which, (as lie Mid; did send over these Books.
So, my lords, he having purcbaw-d bis own li<
berty, lays tlie plot tbf betraying me, and I wai
laben by a pursuivant and four oibera of bia
assistant's, walking in the streets with the fon-
Sflid John Cbilbume, who had hud and cott-
trived the plot before (a* 1 am able to make
eooil ;) and the neit morning I was conmined
by sir John Lamb to (bo Gate-houw. Soi»,»f
133S] STATETRIALS, ISChaiuuL KtSl^arpMiikUg SeHtmitBoOh. (IStB
toida, I do protest before jour honotin on ibe
word of ■ Christian, that 1 did not aend over
tbe&e Books, neither did 1 kouir tlie ship thai
. brought them, nor &ny th.il beloDKS tu the ship, ,
nor to mv Liiowiedge did never lee with nij
ejea, either the ship, or an* chut belongs unto it.
— And being at the Gate-house, I was removed
(by six of jour honours) to (he Fleet, at which
time the said Chillington va< remuved froni
Sridewell to Nengate -, nnd beiug kept close
ibcK, he, by ibeir ibreats and persuobions, and
the procuring o( his nvn liberty, goes and sc-
cusei me Pir priDling ten or iw^ve tliousand
Books in Holbnd. And at my eiaminntion
before »ir John Banks, I cleared intiielfiif that;
and upon Friday lost he made an ASidavit
against me, in which he hath most tajsly tor-
sworn himself, and to-day he bath made tinn-
ther, which is also a most false untruth: and
«iihRl,niy lords, be is known to be n noiorious
lying (ellon, nnd halh accund me for the pur-
chasing of his own liberty, wbich lie hith got.
, And therefore, I beseech your hiinnurs, to take
it into yiinr serious consideratinn, wht-tner I am
to be ceoBured upon eucb n fellow's Affidavit or
Then stud the Lord-Keeper, Thou art n mud
fellow, seeing tliiii^s are thus, thnC thou wilt
not lake thiue Ontii, and ant>wer truly.
My honournble lord, I haie declared unto
you the real truth; but for the onth, it is no
oath of inquirv, and of ibe s^ime nature at the
lligb-Cominission Oath ; which oath I know lo
be unlawful ; aiid witbal I find no warrant in
. tlic Word iif God fur no oath uf inquiry, and it
ought t<> be tlie director of me in all tilings ihnt
rdu; and therelbre, ray In ids, at do hand, 1
dare not take the oath. (Wlien t named the
Wrird "f Goil, the court begun lo laugh, ni
thouith they had had nothing to do with ii.)
My lords (said Mr, Goad) he told ine yesterday,
he dnist nut take the nath, tboui(h he suBered
death for the refusal of it. And with that my
Lord Privy-Seal spoke ; Will you (said he) take
your oatli, that tliat which ynu have said it
true? My lord (said I) I am but a young Tnan,
nnd do not well know what belongs to tlie na>
ture of an oath, (hut that which I have said, ii
a re^ trulh) but thus much; hy God's appoint-
ment, I know an oaih ought to be the aid of
all controversy and strife, ileb. 6, 16. and if it
might be so in this my present cause, 1 would
tately take my oalli, that what I hove said ii
true- So ihi^y spoke to the old man, my fellow-
partner, and Bskcd him whether he noujd lakt
the oath ? So he desired them to eive him Icavi
to speak ; and he hrgan to thunder it out anainst
(he Bishops, and told them, they required three
oaths of the king's subjects ; namely, the oath
of Churchwardenship, and the oath uf Canoni-
cal Obedience, and the oath ejr affkio ; which
(said be) are all against the law of the land, and
by wliich tbey deceive and perjure thousands of
the kinii's aubjects in a year. And withal, my
lords, (laid be) there is a. maijm in divinity,
that we should prefer the glory of Gad, and
(hejpod of out king anA coituiry, ^rar« our
lives. But thu Lords wondering to hem
the old man b^ii to talk after this manner,
commanded him to hold bi» peace, audtn an-
er them, whatlier he wuald take tbe oatli of
? To uhich he replied, and desiied tliein to
let him talk a little, and he would tell them by
and bve. At which all tbe cuuri burst out «•
laughmg; but ihey would not let lum g'' on^
but commanded silence (which if thry would
have let him p'rocied, he would have to pep-
pered Liie Bishops, ■) ihey weie nevtr m ttiaic
Jives III an open court of judicnlure.) So ihej
BijkeH us Hga.n, wheiber we would take ih*
o^ittif Whicli we both again refuiCil; and nitbal
1 tuld ibeiD, ttiat lor the reaiDiis bifure 1 durat
nut take it. i'hen Uiey said, diet would pro-
ofed 10 censure. I bidibem do as tdey pirated,
f^ir I knew myself innocent of the tbiig fur
Hhicli I was imprisourd and accused ; but yrt,
nntHillL-Canding, did submit my body to their
huunurs pliiasure. So tbey crnsured us £00^
B-piecc; and then stoud up judge Junes, and
said. It WAJ lit, ih^it 1 being u young man, fur
example sake, should Imve some corporal pa<
nisbment inllicird upon me. So my Ceuiur*
was tu be whip), but neither time nor plac*
allotted. And Jiir the old man, in regard uf hi*
age, being 85 years old, chey wiml) spare liis
corporal punifsoment, though (said they} he de-
serves it as well nt the other (meaning me,) yet
he should stand upun tbe pillury : but I coultl
not understHiid or perceive by my ceuture, that
I was to stand upon tbe pillory. And wbcu I
came from the bar, I spoke in an audiblevoice,
and said, My lords, I bfseecli God to bless
your lioDours, luid to discover and make known
unio you the widieduesi and cruelty of the
prelates.
lo Camer* Stellnta coram Concilio ibidem ii
die Fehr. anno decimo terllo Car. regis.
■ Whereas, upon lafoimatinn lo this Court
■ the niuth of Cliii instant February, by sir John
' Banks kniglit. his majesty's Attorney -General,
'that John lilhurii and John Whartun, iben
' oresent at the bar, were tbe 94ih ol' January
* last ordered to be examined upon Intarrraa-
' [Oiies touching their unlawful priniing, im-
* porting, publisiiing, iind dispersing of lihcllnui
' and seditious Books, contrary to ihe Deere*
.' of this court, which wu. vtrib'ed by Affid.nit;
* and beiug brought up t'l the office to appear
* and be examined, the said Lilbum refusal to
' appear, and both of them denied to take an
' oath to make sijme answer to inicrrogatories,
' OS appeared by ibe certilicBte of Mr. Goad,
' deputy-clerii of this court : the court did on
' that day order, that their appearances sliould
'be recnriled, >hey being present in cuurt as
' aCnresaid ; and that in respect the said de-
' liiiquents did tlieii a^ain t^ontemptuoutly re-
■ fute tu take their oaib* cendeced to them in
' open court, Ihey sliould be remanded tn the,
' prison of tbe Fleet, there to remain close pri-
' soners, until they conformed themselves in
' obedience to take their oaths and he examiu-
< ed ; nnd that unless they did take their «atliS|
U>7) StATETRIAL^ISCHaUsI. 1637.— 7Hi/<^Zt/i«n,aMf ffXnor, [IJHl
feOaW-jMrtni
■nd told hir
■ and field to bt nanined bj Moodiy-nigli
* tmt then ti«n hBow'atg, and imi* last pan
' tbeir lonlahips would on thji shting-dnj pro
» o»e"l to ■ censure agaioH them for their con
' tempi-. ibmAii. Now this daj the Said Ul
* burn nad Wbanon being ngain bron^lit (O tbe
* liw, his inajeitj's said atiomev infuraied ihis
f Ijarioiinble iMurt, that tbE; stiti cintinu
' their. fiwinBr Obstmacj, and contempinoudy
< tcTtiMd to taVe their oalh^. to niaLc trie ao-
■• swer to the interriyoiorie*, althoa«h thej bad
* beetl sent for, and tbeir oatlu assented to be
* givM onto theiii bj Mr. Oond, Jepoly clerk
' of this oiorj, wiio now cettilied ihe same
■ coDrt : and therefnre bis iiiajeit]''s siiil Atti
* nej huiUbl; plended on his majesty's behalf,
' Ititl tlieir lordsliips iroulri no* proceed to
■ een-ure agaiitit (he s^id delmqaenti, for their
' urtiii contempts and disobedience therein.
* WtiCreupon their lordsliipi endeavoared, bj
■ fiiir per^aasions, to draw tijem to confortniiji
* and obedience, and wiilial ofered, that il
■* they tet wouEd submit and take iheir oat!i
* their loithhips would accept thereof, and iii
' proceed to censure ae^io&t them. But sncb
* *a> the insufferable disobedience and
* tempt of the wid deliaqnents, that tlwv »utl
■ persisted in llieir former ob^tinacT, and vril-
' liilij refnsed to take their oaths. In respect
' whereof the whole court did with unanimous
■ cansent, declare and adjudge the said Lilburn
* and Wharton puiltj of « »ery hi^h romtempt
' and offence, of dnneerous consequence and
'evil example, and W'lrih; to undergo very
' iharp, severe, nnd etemplarj ccnsare, which
* might deter others from the like presomp-
■ itmai boldne>S in refu»ng to ta\x a Irgal
* oath ; wiibont which, many ^reat and exorbi-
. ' tnnt offences, 10 ike prejudice and danger ol
' his mnjc«t}', liis kingdoms, and loving sulyects,
' night K" aivay undijcuvered, and uiipuiiished.
' And therefore tlieir lordships have now order-
* ed, adjudged, and decreed, That the »aid
'Lilburn and Wharton shall be remanded to
' the Fleet, there to remain until thej conform
' themselves in obedience to the orders of this
' court, and that they shall pay iOQi. n-piece
'for their several fine* I o liis majesty's nse;
'.and befire their enlargements out of the
* Fleet, become bound with good sureties far
' their gnod beliaviour. And In the end that
* others mnj be the more deterred from daring
' to offend in the like kinii hereafter, the court
' hath further ordered and ttecreed. That the
' said John Ulbum shall be whipt through the
' Streets, from ibeprisnn of the Fleet unto the
' pillory,* to be erected in such time, and
* place, at this conrl shall hold fie nnd direct;
' and thiit both he and the said Wharton shall
•be both of them set in the ^aid iiillnrj, and
•from thence be relumed lo the Fleet, there
' to remain neeording lo this decree.'
After our Censure, we had the lihertj of the
Iirisoti Cot a few days; but the old man, my
Ihe warden of tbe Fleet,
him tbe sum of that nliich be in-
tended in the Star-Chnmber, to have •pnkes
adjust tfie Bishops, if tbe lords would have in
bim. He told tbe warden, bow tbe Bi»liDpt
were tbe |;reatnt tyrants that ever were *iMt
Adam's creation; and thai they were more
(Tuel than the Cannibals, those men-eaten '
for, said he, tliey presently devour men, ^d
Sint an end to their pain, hat ihe Bbhops do ii
ly degrees, and are many years in exen-isot
their cruefiy and tyranny upon those that stand
nnt against them ; and therefore are wone than
the very Canaibnis, &c.
This came to the Lords of the ConncH't cms,
nbereajion we were the next lUanday after
brought both together, and locked up doM
prisooers in one chamber, witliout any or^er
or warrnnt at all, but only Warden lograa't
bate commuiidan.-l pleasure. But I be old mat.,
about three weeks after, made a I'ctilion to iW
Lords of the Council, lltat be might bore sane
liberty; and being very weak, more likely t»
die than to lice, be had hit liber^ (rsoted till
the Teno : but t do stilt remain ciose prbttncr.
Ujion Wednesday the IBth of AtiriJ, 1638, 1
vras croeliy shipped through the streets ta
Westminster,* nnd at the last came lo the Pit-
lory, where I was anlnosed from tbe caH, and
having put on some of my dolliei, went to the
tavern, wbere I staid a preliy nhlle waitinf
fur mj surgeon, who was not yet come to dreu
me; where were many nf my friends, who ei-
cccdtngly rejoiced to see my courage, that tin
Lord had enabled mc to undergii my pnobb-
Bient so willingly.
I having a desire to retire into a pritale
room from the tnultitnde of people that were
about me, which made me like to f^int ; I had
not b^en iherelotig, bot Mr. Lighiboume, ibe
tipstaff of the Star-Cliamber, came unto uc.
saying, the lords Sent him to nie. to know if I
wnuUI acknowledge myself to be in a fiiult, and
then he knewwhut to Say onta'me. To wbon
I replied, Have their honours canned me to ht
whipped Irom the Fleet to Weslminsier, umI
tio they now send to know if I will acknow-
ledge H fault f They should hate done this be-
fore I had been whipped ; for now, *eing I
have undergone the greatest part of my puni^
ment, I hope the Lord nill assist me (o go
through it all : and (eside, if I nonld have daD«
this at the first, 1 needed not to have coiiM to
this : hat as I told the Lords, when t was b^
fore them nt tbe bar, so t desire you to Irll
them again, that I am not cooscious to myself
nf doing any thing thit deserves a submissiiHi,
but yet I do willingly submit to their lordships
pleasures in my censure. He told rt«, if I
would confess mv bolt, it would lare me «
standing in the Pillorj ; otherwise, I mutt ml-
dergo the bnrthen of it.
* Atid as the cart drew Urn atang, he re-
pented several teVts of Scripture, and USkti
eathtisiaiticdij to tfa* people.
1339] STATE TRIALS, 1 3 Chasles I. \9S7,-M piMahiiig ScdkSotu Booh. [1330
'Well, Eaiif I, I regard not a Htlle ontward
riis^race for tiic cause of my God ; I have found
Already thnt sweetness la liim, in wlHim 1 lia>i
believed, tuat tlinju([h liig screoEtb, 1 am bIjIi.
to uadrrfft any ttiint; that shall be ioflicted on
me : but meihiiitii tliai I Lad ver^ hard rnvR-
Bure, thut I thould be condemDed and thus
Cunisi.ed upon two Oaihs, in which the )
as tnost fubely farawoni himseif; and because
1 wuuld aot take an oath to beirsj mipe
innocence. Why, Paul found mare mere; tram
tbe liewtlien Roman Goi-cmorri, for they won' '
iio.t put hiin to an OHth to accuse hiinseir, h
BuUvred him lo make llie best defence he cou
fur himself: neither wonld titej condemn hii
befar« liii accusen and he were brouglic face
to face, to juatiF)r, and fullj to prove uwii
cuialion ; but the Lords hare not dealt so
me, for my accusera and I *>ere never bruoght
Sace to face, to jostily their acciuition ngainit
me. It is true, two fain oaths were sworn
against me, and I wai thereupon condemned ;
and because I nould not accuse myself. And
so be weal away, aod I prepared myself for ibe
Pillory, to which I went with a joyliil courage;
and when I was upon it, 1 made obeisance to
Cbe lords, some of tbem, n« I suppose, looking
out at tlie Slar-Clmmber window towards me.
And so I put my neck into tbe hole, wbich be-
in|j a great de:il too low f'lr lue, it wat rery
jwiiiful to me, in regard of contintiance of the
time thnc 1 htood on the pillury, which wag
about two hours ; my back being hIbo tery wire,
and ilie aim ihiniiii: o" exceeding hot, and the
TifjstHlf'm'jn not sulTiring me to keep no my
hut to defend my head from the heat of the sun,
30 that 1 Mood iliere in gn.'at pain: yet ihrui^b
the Miength of my Uod 1 und«rirDat it wiili
courage, to the very last minute; nnd liTtui);
up my heart nnd spirit unto oiy God, I begun
to sfjeali niter this munneT'^
" .My ChHstisD Brethren ; To all you that
tote the Lord Jesus Christ, and desire that he
s)iould m^a and rule in your hearts and lires,
to you especiiilty, and to as innitj as hear me
this day, I direct my speech. I stsiid here iii
the place of ignominy andsllnme; yet to n^e it
is list GO, b'lt 1 own and embrace it, ai the
welcome Cro$s of Chnat, and ai B badge of
m? Cliri-tiuB Profeision ; 1 hnve been already
whipped from the Fleet tu this place, by virtue
of a Cengure from the honnurHble Lords of ths
StarChiinber ; the cause of my (Jemure I shall
declare unto yuu as briefly ai I cm.
" Tbe Lord, by his specint hand of Provi-
dence, 10 ordered it, that not long ago I was
in HMlfliid, «IiereIwBs like to have settled
myself in the course nf trading, thnt might have
bruu;;lit me in a pretty lar^ portion of earthly
thing), (after which my heart did too uguch
run): but the Lord having a lietcer poition in
Unw for me, and mort durable rjclies to bestow
upon my soul, by the some hand of Providence,
hrouLht me back ngnin, and cast me into e:ii>
affiictian, lliat thereby I might he weaned from
the world, and sec tlie vanity and emptiness of
all Ibings thetciu. And ha'batb n»fr pitched
' VOL. IK.
my loul upon such an olyect of beauty, ami-
ahleness, and excrileacjp, as is as permanent
and endurnble, as eternity itsdf; namely, the
penonsj excellency of the Lord Jetui Christ,
tbe sweetness of whose preaence nn ntflictiou
can ever be able to wrest out of my snul.
<' Now, while I wis in HolUnd, it seems thera
were tiiver? Books of that noble and renowtieil
Dr. John Bast wick sent into England, whicli
came into the hands of one Edmund Chilling<
ton ; for tlie sending over of which I was taketc
and apprehended, the plot being before laid by
one John Chilbiirne (whom I supposed, anil
look to be my friend), servant to my old lel-
low'soldier, Mr. John Wharton, living in Bow-
lane, aAer this manner. I walking in the street
with the said John Chitbume, was taken by tha
fariuivant and his men; the said John, a*
verily behere, having given direction to them
where to stand, and he himself was the ihinJ
mat) that Iwd hands mi me to bold ine.
" Now, Bt my censure before the Lords, I
there declared upon the wcrrd of a Christian,
that 1 seut not over those Book*, neither did I
know the ship that brought them, nor any of
■he men tliat belong'^ to the ship, nor to mj
knowledge did I ever tee either ship, or any
appertaining to it in all my dnys. Besides this,
I was accused at my eiaminaiion before thai
king's Attorney, at hit chamber, by the said
Edmund Chillington, button-seller, living in'
Cannon-) Creel, near Abchurcti-lane, aod lata '
prisoner in Bridewell and Nei^ate, for pnDtin|
10 or 13,000 Books in Holland ; and that I
would have printed the ' Unmasking the Myt-
tery of Iniquity,' if I could bare gotten a tnta
copy of it; and that I had a chamber in Mr,
John Font's house at Delft, where he thinks
tbe books were kept.
" Now, here I declare before you all, upon
the word of a suSering Christian, that he might
ut well have accused ma of printinB 100/)00
books, and the one been as true ns iita other.
And for tbe pHniiug the ' Unmasking the My»>
' tery of Iniquity,' upon tlie word of an botietC'
man, J never saw, nor to my knowledge heard
of ihe book, till I came back again iato £ag.i
land. And fur my having a chumber at Mr.
John Fooi'i hosse at Dellt, whore ha ihinka
tbe books were kept ; I was so far from having
a chamber there, as I never lay in his houta
hut twice or tbric* at the most : and upon thq
Intt Friday of the last term, I wM brooght to
the Star-Chambtr Bur, wtiere before me wsi
read the said Rdmund ChiUington'a Affidavit,
upon onih against Mr. Jolin Wharton and my
9<.lt ; the sum of which oath was. That he nnd
I had printed, at R.itterdam in Hnlland, Dr.
BaMwii-k's ' Answer,' and his ' Litany,' with
divera other scnndtdous books. — Now, hera
again I spiak it in Ibe presence of Gud, and all
you that hear me, that Mr. Wharton and I
ncrer jotne<1 tOi:<th«r in printing eitbi^r these,
or any othrr boohs vhalsoever ; neillwr dril I
receiia any money from liun toward the print-
ing any.
" Withnl, in hit fiitt oath, ha pworplerily
1331] STATETOIAI^, ISCr.I. i6S?. -TKaf (/ UOwh mi fn««M, [ISflA
•Horc, tbftt we bnd printed tbnn at Bou«i^
dam : uqto wliicli I likawiw wr, Thic he lialb
ia this partkulBr fonivore liimseLr; tot mine
own part, I never in ^1 ay dajs either pnnteij,
or caused to be prmted, rkhtt for mjieir, or fni
Mr. Wharton, nnjt bookf mt, lUitlerdani; nei-
tlier did l cove into aiijr priming- haiuis tliere,
■U the liioe ihnt I woa in ilie ciCj.
" And thra upontbeTuesdujufter, tieisore
•gaintt both of oa aguin. The Mim nt' wliich
<iAlJi( was, that 1 hnd cunfesied to him (which
ii moat Tabe) that 1 had pruucd Dr. Buatwiok'i
AoiHer to til Jubn Banks's * Infnmmtiiiii,* and
bia ' Litaoj ;' and another biKik, called, ' Cer-
* tain Arwwers to certain Ulyectiont :' and
afioLher book, caUerl, ■ The \'anitj and Iiapietj
■of Ike Old litaoy.' And thnt I had ili>ert
other books of the uid Ur. Bastaick'sin print-
isg, and that Mr. Wluitoa bud bcra at the
diarges of printing a Book, caUed, ' A Breriaie
' ofihe Bisbopa laie ProcMdinn ;' andanoiher
book, called, 'Sixteen New Quetiet;' and in
tbi> bit oath bath skotq disy were printed at
HoUMihiB, or iMDCwbereelM i« Unllanrf ; and
that one Jaaie* Oldbam, a turner, keeping fthop
«t WnslminUei-liall (jmc, dispersed divert of
tbeie booki. Now, in tliia oaib be bath i^n
£u«««ra bitBSeLf in a high degree i for wheroiis
he look hii outb that I h*cl printed tbe boot,
called, ■ The Vanity and [apietj of tbe Old
' Liian.^ ; I. here ipeBk it befbr* yon all, tliat I
sever in aU in; days did tee one of ihMn in
print : but I muat eonleu, I have tern aad
mid it (Q wriUcn band, beFiiro the I>MIot was
eeneured. And a* for other boolts, for which
he aaith I haie direri in prinldiig ; to tbnt I an*
■wer, tboC fiii my own psrticidiir, I nerer re»d
nor »aw any of the Doctor's Books, bnt ihe
fbrenained four in English; and one lltcle thing
nore of about Iwo sbeeti of paper, which it an-
nexed to the ■ Vanity of tbe Old Litany.' And
■t for bis Laiia boolu, I never taw any hut
tw»; mjoely, bis * i'lageUom,' for which he
was fini ccnaured in tbe UiEh-CniDinlision
OBoit, and his ' Apologeticus," Klucb nere
both IP ptinl loDg befiire I knew the Doctor.
Bat it it trae, thera is a. second edition ef his
' FUgellinu,' but that wis at the press abare
(wo ^enrt ago ; namely, anno 1634, and some
Qf tin* imprwniiia was in England before I came
•ut of Holland,
" And tbeie ore the main thinjis far which I
was censured and condMnned, being two ontbs
in wlarh the said ChiUingtun hath palpably fur-
■worn hinself; and if he had nut fmsnorn
Iriaueif, yet by tbe law (lu I am gjvin to un-
dertlandj I night hare excepted against htn>,
being a guilty person himself, and a prisoner,
ttld did that which ho did aeninst me fur piiF-
dwring hit own liberty, whicn he hath by '
Judasly means i;nt nod obtained ; who is
kiiowD tA be a lying I'ellow, as I told tbe lords 1
yrua able to prove and make good.
" But besides all this, there was an inquisi-
^OD Oatb tendered unto lue (which 1 refused in
take) on four s'cceral days ; the suni of which
ntb h ifcus mncb : * lou shall swear Uint jou
' be asked of you ; so help you God.' Now
ibis oath I refused at a tintnl and nntawfat
oath : it beitig (he Higb-CommiMion oath, with
wliich tlie plates ever have, and still do, to
butcherly torment, afflict and undo, the dear
saints and aerrantt of God. It is an oath
ngainst the law of the land (as Mr. NicbDlaa
Fuller in bis Argument diitb pioce) : Aud abo
it is expressly agaioat the PeLtion of Right, an
act of pa 1 1 lament enacted ii> tbe 3d sod 4tfi
vearot ourking. Again.it ia'absiduUly againat
tlM Ian of Uod ; for that law letjuires no man
to accuse bimuir; but if any thing be laid id
liis charge, the^ mult come two or three wil-
neasck at least to prove it. It b alio agaiBst
the practice of Christ himself, who, in idl lua
eiaminatioot before th^ bgh priest, woold noC
accuse himself, but upon their draunds, n-
lumed this answer, ■ Why ask you wa i C*
' to them that beard me.'
'• Witbal, ibis Oath Is aj-aiiut tbe very lav
of nature ; for nature it nlw^t a pretcrreT of
itself and not a deatroyer : But if a man taken
tliis wicked oath, he df ttioys and undoes bi«i*
self, as daily ciperieace doth witness. Nay, it
it worse than tlie law of ilie heatben Roroaai,
aa we may reed. Acts xxv. IS. For when
I Paul stood before the pagan goremory, and the
Jews required jydgnent against bim, the co-
vornor replied, < It it not tbe maoim' of the
' Romans to condemn any man, before be nnd
' bit accusers be brouebt Face to face, to jostifv
' tbeir accusntioii.' But for my own part, ifl
had been proceeded agaii'st by a Bill, I would
have answered and justified all that tbey could
have proved against me; and by the strcngtb
uf my God, would Lave seeled nbatsocTer [
have done with my blood : for I am priry to
mine own actioat, and my conscience hiiears me
witness, tliat I have htboured, ever since the
Lord in nm^y made the Hchei of hit grate
known to mt tnul, to keep a good consrieocr,
and to walk iiMfeiaiiely both lonard« God
luid man. But as for that Oath that vtat put
upon me, I did refuse to take it as a sinful and
uulawliil oath, and by the strength of my Ui'd
enabling mc, I will never take it, though ] te
pulled in pieces by wild IrarseSj at the nntient
Christiani were by the bloody tyrants in the
Primitive Church; neither th'nil I think lUt
mana taithful snlgect of Christ'skingdum, that
tboll at any lime hereader take it, tcein* the
do snITer cniel persecution to ibis
" Thus have I, as btiefly as I coul^, declared
unto you, the whole cause of my staudinc bne
this day ; I being upon tliese gmunds ccnsurfd
by tbe Lords at die Stat^Chainber un tbe Int.
court.day of tbe lajt tetm, to pay 50Ui. to Ilie
kine, and to receive the ponishnient, whidi
with rejoicing I have undergone, unto whoM
censure 1 do vitki nillingoest and cheerfulnea
submit myself. But seeing I now stand heie
at this present, I intend, the Lord niuwin^ me
with his power, and guiding me by bis ^iril, t»
iSSS] STATE TRIALS, I S Chaku* I. WHI.—firpiMiihing xdMout B4oh. [1S34
^adarc mj^ niad unto ;«(M. I have noUiing
•ny to nn; man'* penoa, and therefive will not
ineddle with that; only the thing* that I have
lo taj^ JQ ttie iint place ore concerning the Bi-
•hopi and their calling : Tli«y chuUenge ibeir
calhngs to be Jure iJiximo ; and fur the op-
pugning of which, thtMB tbre« reiioifned li*iiij>
manjr* of tlie Lurd, Dr. Bastwick, Mr. Bur-
ton, and Mr. Prj^n, did sulfer in this placp,
(See No, 145) aod Clie; liave sufiicientljr prov-
ed, diHt [heir calling is not fmin tiud : which
men I love and honour, »nd do penunde my-
•elf that ibeir lonli are dear and precious in
the sight of God, though they ivere 90 cruelly
nnd butcherly dealt with by the prelaies. A
ai for Mr. ilurcon and Mr. Prynn, tliey
iTorthy aud learned men, but vet did not
tnany xbings write »o full* a* the Doctor did,
who bath HitHciently and plentifuily set forth
the wickedneu, both of the Piclntet tlicm-
telvei, and of thsit calling (ai yoa may read in
liii Booka), that they are not Jure Draino ;
which nnble and reverend doctor I love with
nil my muI : and ai he ii a man thni ttandt fiir
the rruth and %}otj of God, my T«ry lite and
heart-hlood I will lay donn forbiihooour, and
the mainlaiiiiug of hu cause fur which he suf-
fered, it b«U)g God't cause. As for the K-
■hDp«, they osed in funncr timet to chaUen,,
their jurisdiction, callingi and power from the
king ; but they have now openly, in the ni|h-
Coounitsion -Court, renouncml thw, a* wat
beard by many, at (he Censure of that noble
Doctor : and as you may fully read in his
* ApolMeticDs 1' and in bis ' Answer to tir
* John Banki*! iufarmatioa.' Now [ will here
maintnin it before them all, that their callit^ t5
■o far from being Jure Diviiio (•• they lay Ihey
are) that they are rather Jure Uiabolicoi
which if I am not able to prove, let me be
bangad np at the halt-gate. But, my brethren,
for yonr better wtitfiK^ion, md the 9th and
I3th chapMr* of the Revelation, atKl there ym
■lull see, that there case loctuli o«t of the
BotloratessPic, part of whon ihoy Bre,«ndtbCT
are there lively described. Also you ahaU
there find, tJiat the Beast (which is the Pope,
or Roman Stats and GoTamment) bath given
to Ilia b* tbe Dri^n (the Devil) hi) power,
•eat, and great authority. So that tbe Pope's
aurfaarity comes from the Devil ; and the pre-
Utes, end their creatures, in their printed
Books, do challenge their authority. Jurisdiction
Knd pow«' (tlia4 they uiercise over all tartt of
people) it from Home.
" And for proving the Clinrch of England to
be a itve Clioreh, their bett and strongest ar-
gsment ii, that the Bishops are lin^y de-
soeaded from his Holiness (or Inpiousness) of
Rotne, as you may read in Pockhngton's book,
called * Sunday no Sabhath,' So that by their
own cBnfeision they suud by that same poAcr
aud aacbority, that tbey have received from
the pope. ^ that their calling b not from
Gud, but from tbe devil. For the pApe cannot
E' « a better auihofi^ or calling to them than
biflSMlf faathj b«ft hk auhodijr Md mUiog
ii from the devil, thftefore the prelate's calling
and autlKuiiy is (torn the deiii ulso. Revel, is.
S. 'And llierecanie out of ilie smoke, lociun
' upon ihc earih, luid unto ttien vns given
■ puwer, as Ibe icnt|>ioni of the eaitli liavt
' (lOwcr to hurt and undo men,' a> the prelates
daily doi and nlso, Ilevel. xiii. a, 'And tlie
' Beost which I saw' (sitith St. John) ' »as like
' UDto a leopard, nnd his fret were as the feet
' of a bear, aud his mouth ss tbe muuth of ■
' lion J and the dragon,' (that is to say, tha -,
devil) ' gave him his power, hii seat and great
' Butlioriiy;' and verse 16, 16, IT. And nlie-
ihe.- tlia Prelates, a£ well as the pope, do nnt
daily the same things, let every man that liatK
butcommun reason iodge.
" For do not their daily practices and cnie4
burthens imposed on all sorts of people, high
and low, richaiid poor, witneu that their descent
is from tlie lieast, [lartofhisstnte and kiiigdum:
so also RcvtI. xvi. 13, H, all which ptnces do
declare, tint their power and authority being
Ihim the pope (^ they themselves confess)
therefore it tniut origiuallj come fioin th4
devil. For iheir power nnd callings mu!t ot'
necessity proceed either from God, or else from
the den! ; but it proceeds not from God, as tb<
Scriptures sutHciently decltirc ; therefore theit
calling and power proceeds from the devil, at
both Scripture aad their own daily practices do
demonstrate and prave. And as lor that last
place cited. Rev, xvi. 13, 14. if you please ta
reed the lecodd and third parts of Dr. Bast*
wick's litnny, you shall find, tie there i-rore^
that the PreUtea practices do eiery way suit
with, and make goad tlint portion of Scriptar^
to the utmoat. r'or iu their sermons that they
prt«cfa liefore his mnjestr, how do lliey iocMiM
the king and nobles againtt the people of God,
hibouriug to make thein odious in Jiis sight, and
stirring hiiti up to eiecate vengeance apon
them, theugb they he tlie nosl baraileu gene^
retioD ot aU others?
" Aud as for aH these officen that are Bitdef
tlietn, and made fay ibem, for mine own pnrtH
ealsr, I cannot see hut that their ratlings are as
anlcwful *9 the Bisliops tliem wives; and iff
particuhir, fur tlit caUing* of the Uiinistera, I
do not, nor wilt not speak against Iheir p«v
sons, for I know some of them to lie very able
men, and men of eicellent gifts and qunlificTw
tions; and I pnsuade myself, their louts »n
very dear aodpreciou) in tbe si^htof God.
" Yet notwithstanding, this proves not thnr
callings to befver tlie better, as it a in civil
government: If the king (whom Gnd hath
made a lawfal muistrste) make a wicked roan
■n officer, he is as trne an officer, and as welt
to be obeyed, coming in the king's name, as th9
best man in the world coming with the same
authority ; for in such n case, he that is a
wicked man, hath his calling from as good au-
thority as the godiiest man hath ; and there- ~
fere his calling is as good ns the other's. Bat
on the other side, if he that bnth no authority
make ofliccrs, though tbe men themselves lie
ercf M gwd and bdy, yet their huHuesa make*
|SS5] STATETRIALS, ISCbableiI. l6S7.—TrialqfLi3»miandWharto», [ISX
their c«lUng ueier a whit tbe truer; but kiill
'is B Tiilse cotling, in r«g:in) bis aullHinty iras
not )(<x>d nor Inwfut that made ibein. And even
■o tbc minister, be tliey ever m> holy inen, yrt
tliey have one and the lame callinc witli the
n'ickedfiit that is amongtt them; their h'>linesi
proves iiut ibeir callitigs to l>e ever the truer,
ceeiiift ibcir uuthoritj iLatmade ibem niinisiers
is bl-e : wid therefore they hnve luore xi> an-
swer for than Duy of' the re^t, by buw much the
more G'ld liath best^iwed greater giftft upon
them itian opon others, aiid yet they deinin the
tnith in unrighlenusncts from God's people, nnit
do not make knovrn tn theio, as they nimlit,
tbe nbol'' will and counsel of God.
" And again, th" greater is tl>eir sin, if their
callings be uiilavrful (as I verily beliere tliey
an;, in that they still hold them, and dn ii'it
*('iilui»lf lay down anil renounce them ; hi they
do liut deceive tlie people, uid l>ij;hly dishunoui
God, and siu afaiiist their own «ouJ<, while
Ihey prrnch unto the people by (irtue of an
Antichrisiiaii mid uidairrul railing. And the
Inore Kodly ud able the minister is, that suU
pienches liy virtue of this cnlhiift, the more
' Iiiirt be doth; lor the ptople thiit have such ■
ntiniater will not be pet«uad«d of the liuib of
things, tiiiiii^h one sj-eak, and miorm tiieni in
ihe HHDie of ihe L<ird ; but will be ready to
reply. <>ur miiiisler ihut preaclies still by virtue
of tail catlmKt " *" ''"'y ' man, chat were nut
his calUnj; ii|;ht and gniid, I d'l assure niysell
be would i^o longer preach by virtue ibi'renf.
And tlmgthe hi>linei« of tbe luimster is a cloak
to cover the. unlawfulness of his calline, and
make the people coitinue rebels attaiDstLhrist,
bis sceptre and kioKdoni, which is an a^i^rai a-
lion of his sin: (or b^. this means itie people
Kre kept oSTrom receiving the whole truth inio
their souls, and rest in being but almiwit CUri^
tiaos. or but Cbriuians in part. B.it, 0 my
brethren, it becotnes all you that f^ ar God, and
tender the salvation of your own tuids, tu look
Ahoiit you, >ind to slm(,e uiT th:tt i-mg security
and forraaliiy in re]i|;i'iu that you have laia in :
for God, ol all things, cannot endure luke-
warmuets. Rev. iii. 16, ani! ararcb out dili-
Kitly tlie tnitb of things, and try t)ieiii in the
aiice of the sanctuary. I beseech yi)u take
things no more upon trust, as hitherto yiin have
dona, but take pains U> senri-h and fiud out
tbuse spiritual and hidden tnith»lhat God hath
enwrapped in his lacr^d Book, and iind out a
bottom lor your o«n souls: for if ynu »ill
hate tits comforts of tbtm, you must bestow
fomc labour for ibe getiiii| of them, niid ytiu
most search diligeniTy beStre you find lliem,
PioT. ii. Ijibouraiso to withdraw your necks
irom under that spiritual and Antichriuian
bondage (unto wliich ynu have lor a Inng time
aubjected your souN), IcU the Laid cnuse Itis
plnguei, and the hcrceniss of liis wiath, lo
Mile both upon yniir Uidic!^ and souls j seeing
you are now warned of the daagei of tliese
" For he himself tiath said, ftev, liv. 9, 10,
11, ' That if auy uiao worship fht Beast and
' his Image, and receive his marfc~io \in (an-
' bead, or in his hand ; tlie saine sliall drii^ of
' tbe wine of his wratb, which ii | «i>red oat
' without mixture, into the cup of Lis indigDa-
' tion, and iie »hall be Connentird witli &re aod
' brimitone, in rhe presence of the holy An-
' geh, and in the presence uf the l^iob: aad
* the smoke ut their lormeni ascended np fcr
' ever and ever, and they liavc ui re«^ day nor
' night, wlio wDisliip the Bea>t and his Imaee,
'and wbosoeter receive.h the mark of hi>
' uame.' Iherefore as ynu lovt your D«a
souls, and look for that iuiinorta] cron n uf Lap-
pini-is ill the world to come, Ibok (hat yv«
withdraw yourselves Cruoi Ihiu AnticliTistjaB
power anri slavery that you are ttow under,
even as Gitd himieir liath commanded and en-
joined you, in Kev. xriii;4, ' Come out ot' her,
' Diy people, that ynu be not paitakeia uf
' her .'JUS, uud thai you receive not of bcr
'nlrigueb; fi>r her sins hare reached uiiu
' heaven, and God Itaih remembered Itei iuh-
' quiiiei.' Here is the voice of God tum>eiF,
cniiimanding all his cho^n ones, ti<oii^
they have lived under this Antichrihtian lUfah
p-iwpr and state a long time, yet at laat ta
withdraw their ohcflience and BobjeaioD from
it. My fareibrcn, we are ail at this preaeDt, la
a very dangerous and fearful cunditioB, onder
tbe idiilalroui and spiritual biindaee of the
prelates, in regard we have turned traitors mto
our God, in seeing his almighty tjoU name,
and his henrenly truth, trodden uniler foot, and
M> liit(hly dishonoured hy itieai ; and yet we
not only let them alone m holding our pemcr,
but most slavishly and wickedly subject our-
selves unto ibem, fearing the face of a piece ot
dirt, more than the AlmiKhty great God itf
heaven and earlti, who is aide to cast both body
and tout into everlasting dainualion.
*' Oh repent, I beseech you Iherefure r^cM,
for that great di>liouour you bare sufiinYd tu
be done uuio Gud by your fearfulnns and
cuwardUness; and lor the time to cowc pat
OD coiimgeous resoluiions like valiant sokucn
of Je<us Chriit, and fight maiifally in this loa
apiriiuol battle, in which battle some of ha ul-
tliers have already lost part of tlieir blood ; and
wiihal, study ihit Book of the Rcvelatioa, and
■ here you shall find the mystery of iniquity
lullv Unfolded and explained ; aod alio yoa
ahull see what great ipinluol battles have bccB
lijuglii l>et»iit the Lamb and lus aervants, and
tbe Dragon, ttie Devil, and Us Tassab; wad
" Therefore K<'^ on your spiritual annoar,
spokeu of, Ephcs. 6, that you may ijoit y
selves like good and faithlul soldiri
no colours, the victory and coiique>t is oun al-
rendv; for we are sure lu Iwrc it, 1 du uol
speak of any buddy and tempund lottle, bot
oufv of a spiritual one, anil l« not diicuHiaited
and knocked olf from tiie study of it, becauae
of ihe obssutiiy and durknese uf it ; fur tbe
Lord liath promi-ed his.enliKlilcniug Spirit unto
all his people ibiit are Inbourous and ktudioM
to know him a-rigbt, aud also be bath prunuMd
|Dit Tnta<-
1337] STATE TRIALS, ISCbaussI. \e3^^-^pMiMltiHg SediliouMBoaki. [IS36
* bUning, itod pronounnd n Ue«e<liif9s unUi
•II tbai read and labour to teep che things eoo-
tained ia tlii* Boali, Ker. 1, 3. Mt Chruimn
Brethren, in tbe bowels of Jmui Chriit, I be-
•eech joa.du not contemn. the lhiuf(> that are
delivered tu jou, in regfird of the meinneua
and weukness of me tlie inMrumcrtt, being but
one of the inenncsc-aiid unnoithiett of the ler-
vantsol' Jesus ChriM, for the Lord mauj times
do tb great things bv weak means, lltut bis
power maj be more leen : furneare tooread^
not looking up unto that Almightir power that
is in God, who it able to do the greatest things
hy die weakest maaiis, and theMfbrc ' out of
' the mouths of babes and sucklings be hatb
' oidaioed strengcfa,' Piul. viii. 9. And he
hath chosen the foolish things of tbe world to
•ontbund the wise, and God hath chosen the
weak things of the worid to confound tbe things
ivbich are migliij, -and base thin^ of the
world, aiul ihio(^ which are despised, hath God
chosen ; 'jea, thiols which are not, to bring to
nought the things that are, 1 Cor. i. 37, W.
Aim he gives the reason wfaeralbre he is pleas>
■ed so to do; ' That no flesh sboald glot^ la bis
' presence.' — So 700 see God ii not tied to any
instrument and means tu efltct his own glory,
but he by the least inGtrument is able to bring
to pass the greatest things.
" It is true, I am a young man, and no Scho-
lar, acconluig to that which the worUI counts
achoLanhip, yet I ba*e obtained mercy of tlie
Ijord to be faithful, and he, by a X>iTine Provi-
dence, hath brought roe Miher this day ; and I
speuk to you in the name of the Lard, heing as-
sisted wich the tniiic and puwer of tbe God of
heaven and earui: and 1 speak not tbe words
of rashness or inconsiderate iirss, but the words
of soberness, aiid mature deliberation; for I
did consnlt with my Gnd, before I came hiilier,
and desired him that be would direct and ena-
ble me to speak that, which might be for his
glory and the good of his people. And as I
am a soldier, fighting ander the banner of the
^reat niid migbiy Captain die Lord Jesus
Christ; and as I look for ibat Crown of immor-
tality, which one day I know shall be set upon
my temples, be iif in tbe condiiinn that I am
in, I dare not hpld ray peace, but speak unto
you with boMness in the might and strength of
my God, the things which tlie Lord in mercy
hath made known unto my soul, come Lte,
come death."
[When I WHS hereabout, there came a fat
lawyer, I do not know tns name, and com-
manded me to hold my peace, and leave my
prescbii^. To whom I replied and skid. Sir,
I will not hold my peace, but speak my mind
freely, though I be hanged at Tyburn lor my
pains. It seems he liimielf wn» galled and
lonched, as the Lawyer* were in Christ's time,
when be spake against the Scribes and Pari-
•ees, nhiclinude them say, ' Master, in saying
' tJins tlioii revilnt us also.' So he went bis
way, and, I think, complained to the lords, but
I went en with my speEcb, and laid :}
" My Brethren, be not diKouragwd at th*
ways of Ood for tbe afflictian and crota tfaw
dodi accompany tbem,forii is soertasd conl-
fortable drawing in tbe yoke of Christ fur all
that, and 1 iMve foand it ao by experience; for
my soul is filled so fuU of spintnal and heavenly
joy, that with my tongue I am not able to ex-
press it, neiiber are any capable, 1 think, to
partake of so great a degree oi cotisolation,
hut only those upon whom ifae> Lord's gmcioo*
afiUdii^ hand is. And for mine own pact, I
stand this day in the pldce nf an evil doer, but
my conscience witncssedi that I am nut so."
[And hcreaboatl put my band into my pitcket,
and pulled out three of worthy Dr. Btisiwick'a
Books, and threw them amon^ tha people, and
said,] "Tliere is pan ofibe Souks for which
I suffer, take them amoog you, aod read thens,
and see if you hud any thing in them agaiiiK
ihe law of Ood, the law of the land, tbe gluiy
of God, the honour of the king or stale.
" I am the son of a gentleman, and my
friends are of rank and quality iu the cuontry
where tbrj Uve, which is 300 miles fi;am tlits
place,andl am in my present condition de-
serted of tbem all ; for I know, not one of them
dare meddle with me in my present estate, be-
ing I am ituog by the Scorpions, (Ihe Pre-
lates) and fur any thing that I know, it maj
be 1 shall never have a lavouralile counienance
from any of them again : and withnl, ant a
young man, and likely to have lived well,
and in plenty, according to the futhion nf
tfae world ; ytt notwithstaading, for the cause
of Christ, and to Ho hiia srrsite, i have and (h>
bid adieu to father, friends, and riches, plea-
sures, ease, contented life and blood, and lay
all down at the (oot-srool of Jesus Christ, being
willing to part with all, lathprthan I will disho-
nour him, or in iheka?t measure part with the
peace of a good conscience, and thnt sweet-
ness and jov which I have found in him. Fnr
in naked Christ is the quintt-Kence of sweet-
ness, and I ain so far from (hinking my afflic*
tion and punishment, which 1 have this day
endured,, and siill do endure and groan under,
a disgrace, that I receive it as tlie welcome
Cross of Christ, do think mj-sclf this day more
honoured by my lufferings, than if a ciown of
gold hdd beensel upon my head : for 1 have in
some part been made conrnrmahle to my Lord
and Master, and have in some meature drank
of the same cup, which he himself drank of,
while he was in this sinful world. For he shad
his most precious hlogd fur the salvuiion of my
poor soul, that so 1 miaht be reconciled to hil
Father ; therefore am I willing to undento any
thing for bis sake, and that inward joy and con-
snlation wiihin me, thai carries lue liieh above
all my paint and torments. And you, (my hre-
threu) if you he willing to have Chrisi, you
must own him, and take him upon his own
terms, and know that Chrisi and the Cross i>
inseparable; for be that will live gndly in
Christ Jesus, must suffer penrcuiion and afflio-
tinn ; it is the lot and portion of all hn chosen
DUH, thtangh naaoy afBictiou and trials vr»
13993 STATETSIAIS. liCaiMMl.HiSy^tHd^fLaitmmdinmiam, [IM
tbinpr Y«a,«> kAoth; hot •!», tber «e m
cottiutll; Md feufbl, tfatt thej cbn not miib
^-Aod tiieKJbre it fadongt aiio Ut thtc, or ■•,
an; other nan, if tfaau be'H a ssldier of Ji-
BHUt eDter iuEo gloir ; anil lb* Apostk lailb,
.'Thuifje be mlhost affliction, wherraf alt
*UTpMt«Ler(, then ar* jpe bastards, aitd not
'boos.' And tiwrefore, if younill hsvcCbrut,
ait down lad reckon before ever you make pn>-
fctfWD dF him, what ha will cost you; letCwban
you coma Co Uie'trial, you disbouour him; and
if you be not willing aod con tenied withal, and
let all go for his sake, you are not nortby of him.
If parents, husbands, wife or children, landi or
living), riches or hanoars, pleasure or ease, lite
or blood, btand in the way, yon must be wiUipg
to part witli all these, and Lo entertain Christ
naked and alone, though you have Dothitig but
the CroM, or else you are not worthy of him
Siath. 10,37,38.
" Oh, my brethren, there is tech sweetness
and con tented UESS in enjoying tbe Lord Ji
alone, that it 13 able, where it is felt, to malic s
man go through all difficulties, and endnre
Iiardsliips that may possibly come upon him.
TUerelbre, if he call you to it, do not deny him,
nor liis truth in the least manner ; for he bath
said, ' He that denies him before men, hira wiU
* be deny before his Father, which is in Ilea-
* ven.' And now is the time that weiniutshew
ourseWes good soldiers of Jesus Christ, for his
truth, bis cause and glory lies at stake in a high
degree; Uierefore put on (^urageous risoluCtoni,
and withdraw your necks and souls frain all
false power and norship, and fight with con-
rage and boldness in uos spiritual battle, in
which battle, the Lord before jour eyes hath
raiaed up some valiant champions that (bogfat
up to the enn in blood : therefore he coorage-
aas soldier*, and fight it out brarely, that your
God may he olonAed by you, and let him only
have the service, both of ^our inward and out-
ward man, and stand to his cause, and Iovb your
own souls, tiad fear not the face of any mortal
■nan ; for God hath promised to be with you,
■nd uphold you, that they shall not premtl
•gainst you, ba. xh. 10,11. Bnlalas, how few
■re there that dare shew any course for God
>od his cause, though his gloij lies at the stake,
but think themselves happy aitd well, and
count themselves wise men, if they can deep
in a whole skin ; when Christ hath said, ■ lie
'that will saT«hisl)frshdllo*ait:*»dbe that
< will lose his lite for his sake, shall find it.
■ What shall it profit a man, if he gain the
' wboJe world and lose his own aoul ('
" Therefore it is better for a man to be witt-
ing and contented to let nit go for tbe eajoyinc
of Christ, and doing him service, than to sit
4lown and sleep in a whole skin, though in to
doing be ^n ftll tlie world, and see him disho-
noured, hisglm^ and tmtb trodden nnder foot,
whI the blood of hi* servanm shed and spilt. —
Tea, without doubt, it is ; hnt many are in theae
Ijoies, so far trom anffimi^ valiantly for Christ,
Aat they latber diseaade nea from
pilarit^ and pride. Hid
put himietf forwanl t«
•elf-cnds, for
doGod«ervi<
not any private man bath tbercvnio, seamg
kbcbagi •» tlw oiaiHei* M spwk af ifaMt
sus Christ, whatioerer by place or cailin^ \,kj
t»iik or degree he, be it higher or lower, yet if
be call for thy service, tbou on bound, thuugh
others stand atill, to maintain fait power aad
glory to the utmost of thy power and streag^
yea, to the shedding the last drop of thy bhad j
for be hath not lov^ his lifo ynto the death far
thy sake, hot shed his ;»wiout blood for tk
redemptian of thy soul. Hath be dosie thb Sat
tlwe; and darest thou tee bim disboBvue^
and his glory lie at tbe stake, and not apeak in
bis beh^, or do him the best BCrrice tbw
canst f — If out of a biue and cowardly spirk
thus thou doast, kt me tell thee hei^ and that
truly to thy face, thou hast a Dalilah in il^
heait, whidi thou lovest more than God, and
that thou shalt one day certainly find by wnfid
esperiaice. Alas, if men should hah) tfaesr
peace in eiKh times as these, tbe Lord wovld
cause the very ttixieE to speak, to convaoo
an of his cowardly baaeneas."
Having proceeded in a manner tlm* for by
esireugtbof my God, with hotdaeta and mu
mge in my speech, the Warden of the Fleet
me with tbe fat Lawyer, and rmn— lull d lac
bcAd mr peace. To wboia I replied, I would
speak ami declare my cnose and oubcI, iboogh
re to be banged at the gate for mj apeah-
And he caiued prodamation to he made
npoD the pillory, for brioi^og to him tlie Books :
so then he commanded ma to be KaRcd, aad if
1 spake any more, that then I aboind be wbipt
again upon the pillory. — So 1 remained abeal
an hour and a half lacgMl, being intmxpted of
mnch matter, which 1^ God^ assistance £ in-
leaded to hate spoken ; hut yet with tfaear cik
elly I was nothing at all daunted, for I ivaa foil
of comfort and couragr, beiag miabiiiT strc^ik
ened with the power of the Ahnigb^, whscb
made me with cnaetfulnesa tiiumpb over all mj
snScrin^ not shewing one sad oountenaDCe •(
discontented heatt.
And when I was to come dowa, havii^ bikea
out my beasi oat of the Pillory, I braked abeol
roe upon tbe poo^^ and said, * I mm motm (bta
' a ciH«itiaT0r throncb bint tint bath krved mc'
Vioat H^,' Let the king live for ever ; tai
1 1 came down and wat bad back spUa to the
Tavern, where I, together Kith Mr. Wbaito^
staid a while, till one went to the Warden to
know what sbonld bc done with mm, who $■•*
order we iboald be earricd baok agna 10 the
Fleet.— AAer 1 came hack to the prnoa, aeae
waidt HMotioDed in tbe dewsiisona befcic dM
lonli, it is bai« omitted.}— The rett ihM I in-
tended by tbe ttreogib ol my God to bare sp^
ken (if I had not Men prevented by tbe |Bf]t
13«I] STJkTETSIALa iSCiuuUl. I6i7 ,~fi,r fiAkdwig StdUimitooh. [ISM
battle, unto which
IdTd Ml onlvr it that I nay ba*e Uycny lo
(f>cak,I domht not bat by tbe might mnd —
of my Ood, ID whom I rctt •■d
it mnd power
Hl,v«fiwitly
ten, I tet-to m^ name, by ne, John XJIbnra,
iMingwritten vKh part of mine awp blood.
PaUKlTT; Lord ArchbUbop of CantcrbBry,
I.oill-KMpeT, Lord-Treasnrn-, Lord-PnTy-Scal,
Xarl-Manhai, Rati of Salisbury, Lord CaitinK-
con, Lord Niwbunb, Mr, Secreiaiy Cooke,
Jdr. Secretary WtniEtlNuik.
* Wfaereai John Lilbuni, priioncr m the
* Fleet, by lenUiice in the Star-Chauber, did
' tbit day soficr condigD puaiihmant for fan
' wrreral Ofeocea, by whippiogat a can, aod
* itandin^ in the piUory ; and a* their hirdkbipi
' wercthii day iutbimcd, during the time that
* bis body was nnder ilia laid eieculion, nu-
* daciouify and wickedly did not ouly niter no-
*'dry«cKnd*h)DS ipcetAM, but likewise scat-
* tend dirers copiei <>f seditiout Books among
* tbe people) that bebdd the said execatimi ;
* for wbico very ibiag, among other ofTencei of
* like naiore, he hath been censured in the nid
* Court by the aibmaid Sentence : It ii tbere-
' fore, 1^ tlieir lordibips ordered, That the said
' Johti lilbura dtotild be laid alane, with irons
■ OD hit hands and leus, in tin Wards of the
' Fleet, where the basest and meancit Mirt of
* priMMian are used Co be put ; nnd tliat tbe
' Warden af the Fleet ta^e special care to
' hinder the resort of any penoas whatsoerer
' unto him. Aad particularly, that be he not
* supplied with money from any friend, and
■ that he take special nutice of aU letters, writ-
' inp, and books brought unto hira, and «iie
' and deliver the lame unto ibeir lordshipi ;
* mid take notice from time to lime, who they
■ be that resort nntu tbe nid prison to visit the
* said Lilbum, or lo speak wiih bim, andin-
' form tbe Board itiereof. And it was lastly
'ordered, tliHt uU pervins that shall be hn»-
* after pnnluced to receive cornoTil puQishment
' ncconling to sentence of tW court, dr by
* order of ilie Board, thall have their garments
*9earclied before they be brnnght fortli, and
*' neither writing, nor other llung niffered to
' be about ihem ; and thtir hands Tikewiie to
* be bound, during tlw time they are under
'- puaisbmeiiL Whereof, togeliier with tbe
' olher premises, the said Wftrden of the Fleet
* is bereoy required to take nniice, and to have
' special care, ibat this iheir lordships ordet he
' accoidiiigW observed,
iaamiiAdpcr DtiDLir Cih-eton."
And on the said ]Sth of April, it was tiir-
dKrntdered by (he said Court of Star-Chember,
' That bis majesty's Attorney and Solicitor-
*' General should be heraby prayed and re>
qutfod, ta Uke strict anmination of John
LilbBTD prieoner in tbe Fleet, touching tbo '
Oeneanour and Speeches of him tl« said LiL-
buni, doling (be time of hie whipping and
stwadiog in the Pilkiry this day, aci'Ordwg ta
lite SenUnce of hii majesty's Court of Star-
Chambar ; , particularly, whether the sud
lilburn did at that time utter any speecbea
tending to Sedition, or lo diedtslionoor of tlie
said Court of Star-Cfaamber, or any mrmhet
nf tlic said Courts and wheliieT he did throw
about and disperse at the same lime any
■editious Pamphlets aud Books, either of that
sort for which he was- formerly cCDiiircd, nr
any other of tike lurtiire 1 What tbe Speeches
warn, and wbo heard them f What tile said
Books were, and. whence and of whom ihe
•aid lilbura had tbem f Aud what other ma-
tccial circnmstaBces they should think fit to
examine, either the said Ulhurn upon, or any
other ucrson by whom tbey shall think good
10 inform tUemsaUes for the better finding
out the truth : and thereupon to make certi>
ficate to tbe board what they find, logelher
with tbeir opinions,'
The 3rd of November, 1640, being the fint
day [he late diasolvrd parliament »»tt, I ac-
cording to law and justice preferred my Peti-
tion and Complaint to them ; who upon tbe
reading of my Petition, immediately ordered
me my liberty [being, as I remember, the £nt
prisoner in Eojiland set at liberty by them] lo
follow mj Petition, and according to the le^l
custom of oarliameDts moke it |ood by proof,
before a select Committee •ppomted by them
to (hnt purpose, Mr. Francis Rouse having the
Chair ; before wbum many particular days ona
nfter another I appeared with my Counsel and
my Witntsoca, nnd fblly proved all my Peii<
(ion. Upon the report of all which by Mr.
Rouse the Cbainsan, the House of Commons
upon the 4tb of iAay, IMl, [beiny the terf
same da^ thai the king himtdf caused me to
he arraigned far High Treason U the bar of
the bouse of peers] voted and resolved open
(be (luestiDn,
" That tba Sentence of the Star<;hamher
given adjust John Lilboni is iUepl, aiid
ngaiiut tba Liberty of tbe salyect ■ and nita
bloody, crncl) wicked, hatbsrous, and tyraiv^
" Resolved upon tbe qiMttion, That repari^
lion ought to be given to Mr. tilbum for bia
imprisonment, suSeriogs, and losaes sustainetl
by tliaC illegal scstence."
" Ordered, That the conuniltee shall pre-
pare ibis case of Mr. Liibum's to be trans'
luitled to tbe brdi, with those other of Dr,
Bastwick, Dr. I<ei|hton, Ur, Burton, and Mr.
Prynne.
" (S^aed) H. EuiHci, CLFarl. Dcm. Cm."
After which' Votes (being in a full, free,
nnravished, or nnforced, legal, and unques-
tionable Parliament, after a full, <^en, free,
and foir hearing, and eiamniingofall my afore-
said mSerinp and complaints) troubles and
1343] STATfeTRIAI^, ISCHARLEtl. ISil .—Tiial i]f IMbum md Whvkm, [13U
the wan cmdc od, and being in idt own enn-
•ctctice fuUj iBli-'lied ul'tliif juttiiosof iheP.ir-
liunient's* (hen cau^, in the iiei[^t of teal, nc-
compnnieil wilb judgment and coriirii-nce,
■ upon the' pnnciplci I liave lurgeiif laid down
* in the «0, 27, 75, 7Slti |ia^> of idt book, of
' (be 8ifa of June, 1649, intitled 'Ei>):1bii<I's
' legnl> Aiiidnnieulal, &c.' t took up aim* for
them, and (■tuf.h\ heitnilv Bud faitbfiiliy id ibeir
quarrel, (Ibr miinuiniiig >if which I bod like
to have been han^ ut Oxford, wliile duriii);
tay impriionnient thrrr, 1 \ml & or 600'. out
of mj MUte at London.) lil] t'lp present earl of
Maucheiler bad like to liave ha"i;ed ine, fnr
(jeinp a little too quick In taking in Tickell CbmIc
tthiditfioifeda soldier of me eiertlnce. Afier
wbich, 19 (he jear 1645, I followed the Uouie
of Conunori* clo««, to transmit my foresaid
Votes to the Lords, as afipean hj the fullowing
Petition ;
" To the Ilanauralle tbe IIoum of Commons
now assemlilcd in the High-Court of Par-
liament. The huiuhU Petition of Joan
I^LkCHN, Lieut. Col."
" In all humility BheweUi ; Tlisl your Peti-
tioner havliigsuilercd abundunce of inhuman,
barbarous cruelty, bf virtue of nn illeeni De-
cree made against him, in the Star-Chamber,
1637, a* by the copy of his Petition hereunto
annexrd, formerly preiented to this bnnoui^
able houw, and hy your own Votes ma'te the
4ib of May, 1641, (upon the eKDioination of
the Petition) n-ill n^eor ; Which Votei are
as foHoweth; First, Tliat the Sentence of the
Star-Cbamber given Hgaiost him is illegal,
a£iiii>st the LilKrty of the Subject, nud also
bloody, vricked, cruel, Larbnrous, and [yran-
oical. Sccundly, That reparation ought to be
* Where, (I very well remember,) sir An bur
Haslerig was one of mr ualous and forward'
Judge* ; and when' Wiirden Jfmes Ingram
caroe 10 the bar of the Court of Wurds, and
brought Mr. Ili'rne ihe counsellor to plead for
the Lords, and in excuse of himself, nbo stiffly
insit[«d in a bi(ih manner upon the orders and
decreet of Star-Chamker, upon which I very
welln
nf indignation, mid
'a Decree of ihe lords inStar-Chambprarush,
■ if it beooteipressl; according in the lennrof
' their Commission, the law; undl fitrtlier tell
' you, it it a ridiculous thing. Sir, to summon
' Parliameiils t[> meet together- to make laws,
' if the lords Decroes in Siar-Chaniber onainst
■ lav> sl^outd be binding. And therefore, al-
' though Yoii have proved for your client Mr.
* Ingrami that the Inrils in oaen court (the
''court sitting) commanded bim on thepi'lorj
* to ga^ Mr, Lilliuni, fur ^leukiiig iiKUii't iheni,
* ret I tell tou by Uvr that Order oui:hi 10
' have been in wnt>i^ accnnlin^ to the custom
' of Ihe conrl, wliich you confess it was nut,
' and ibercfure Mr. Ingram must smart Ibr his
< executiiiE of otdai* or Ur. Lilbum mudc
'il^aUy?
giren to bim for his imprisonment, saficrioiii
aaJ losses, sustained by that illegal Smrm.
And then also it was ordered, That care bhoklil
be taken to draw up bit Case, and tnosniii it
to the lords : but by rcBsun of mo'iiiude pf
bu»llie•^ in this lioniiurable biinse, there hitli
been no funber pruceeitiuits in it Nnre. Aid
these uistr.>clions coining on, yonr Prtilinixr
look coiDiiiiDd »nder ilie rii:bi boa. Koben
lord Eirook. with nlux; ntciment lie adveuturcd
his liiW trieiy oud reviiulely, b>'ib :it Krntmi
Fii'ld, and Brentford, wheie he was laltJ pn-
soner and cained nwav to Oiford : wbtir.
within a short tira<' after bis cnnung, the tin;
sent to the Cuile lo your petitioner, ili* no«
earl O' Kingston, the lord Dunsmore, tb« lod
Alaluevtrs, and I B h'fd Andover, 10 ■«
your Petitioner with large proScrs of iIb
honour and c'ory of cuurl-prefennnit, t4
forsake the Parliament's party, and to «•
giige on his party. Upon cbe slighting isd
Conteniding of nliicb, your petiliimer •>
within few days after laid ia irons, and krpt
nn exceeding close prisoner, and Ibmd se-
veral tinie« to march into Oxford in iraoi, n
Judge Heath, before wboin be was irrsigiicd
llir High-Treason, for drawing his snord in ikc
causeof the Commonwealth, sod sullend mul-
titude of miseries, in his B!ino!,t twelie-nioulb
captivity there : in wbirh time he lust ai»irc
000/. iu his estate thai he left brhiod himit
London, (as be is clearlv able to male appor).
And immediately after bis co'iiing from tbcnw,
he totik command in the earl of Mn<icbr>lcrS
army, bis cnnimissiou al Major nf foul bearn;
dxte the 7th Oct. 1643, which Issied till ibt
16th May, 1644, at which lime lie nss aulbo-
rised by commissiou as lieut.col. in cunnnuHi >
U^imeucofDragoons; in which services haiis;
been ID many engagementi, he hopes It ■lU
easily appear, tlint Le hnth not only helwvMt
himself honestly and laitfafulW, bat abu vali-
antly and stoutly, in the midst uf moa^discos-
rageioents, God crowning some of hit endes-
vours with success ; and especially ai llie tak-
ing of lick ell-Castle, and sir Fronro VVortUfi'i
garrison, at which place your peliiioiier "si
shot through bis arm. I'be pFemi^ ca<di-
dered, be humbly heseechetb tnis flnn<(iB3ble
Assembly to perfect that justice, wbichytiasa
happily began for your petitioner, and l>ii;i''
him reparaiton forhislBKEeaud ledinus anpii-
sonment, and heavv suffenngs by tlif >l»'"
Chamber Decree ; he havine waiied fuur yni
with patience for that end, though lie ki^ I1J
his imprison monl all llial lie liad. and wsi de-
pritrrd of a profitable calling, being then io ili*
way of a fiiclor in tbe Low Countries; sixl
•Iw to lake otf (lie kingV Rue, an.) to contidrr
his service with the earl of Manchr ster, wlierW
h faithlully adventured his life, spent a i;reat
deal i>f hi* own moii' v. aM lost at Neio'l^r
when prince Rupert raided the siege, alnOt
100/. Iii-iiig siripied Irnm ibe cninn of tW
head to the sole of tbe foot. l«idrs his for»er
losses at Kenton and Brentford : and ihat yM
wili be pleaMd, for l^if present tubuKscC) tn
lS4!i] STATETKULS, IJCbahusI. mi.—M piMMis Stjilum Axib. [1<M
fricndi at came to aee him in hi* grc&t diitresa.
appoint ifae pajnteut of wmach of hia present
Brrean, as jou io your f^reat niMloins shall
think £t, to upplj' bia ui^nt and pressing ne-
cessities, Ihere being now due to ihem 6001.
BDd upwardj. And that Col. King maj be
comniiinded to account with the peCjlioner,
'which forme rlj' lie haih refused to do (though
Comrnandcd by his ^^eneral), and to give liiua
debentures for what is due bj the state in his
service, aod lo pay him what he hath receired
for the petitioner, and detained from him. And
be sliall'pray, &c. JoBfJ LlLStrnN."
Tlie annexed Petition thus fiillawcth ;
** To the House of Commons nnw assembled in
thelltgbCouft ofPailiament; Thehuoible
Petition of John LiLBoav, prisoner in tbe
Fleet:
" In nil humility shewetli ; Tbat in Decem-
ter next will be tlirec years, your Petitioner,
upon siipposal of sending over certain Books
of Dr. Bastwick's, from Holland into Enjilund,
vat by Dr. Lamb's warrant williout any Eia-
miaation at all sent to ihe Gatehouse prison,
And from thence within three days removed to
the Fleet, where he abiding prisoner, in Cnn-
(lie mas-Term follnwing, wis proceeded against
ill the hoDounible court of StRi^Chamher :
nheri? your Petitioner appearing (and eniering
(if his name, for want ol money his name was
struck out B^io), and he refusing to take an
Uatfa to answer tu all things that should be de-
manded of him (for that your petitioner con-
ceived tbat oath to he dangerous and illegal)
without any interrogatory tendered him, for his
refusing the said oath, he vibs prosecuted and
censured in the said court most heBfily, being
lined 5O0L to tbe king, and sent prisoner to the
Fleet. And in Easter Terra following, was'
nhipped from the Fleet to Westminster, with a
ihree-fulil knotted cord, receiving at least SOO
eliipes; and Lheu at Weitminster, he was set
on the pillory the space of two hours, and (over
and above the censure of the court) at the war-
den of the Fleet's comnumd, was gagged about
an hour and a half; after which most cruel suf-
ferings, was again returned to the Fleet close
prisoner, wlieii through his snid sulferings,
the next morning he being sick of an extreme
fever, couidngt bare admictancc fur his surgeon
to let him blood, or dress his so,ies, till the af-
ttrnoon uf the said day ; though ibe surgeon, in
pity to the prisoner, went to WestmiDsier to tbe
warden himself; and your peiiiioaer hath been
close prisoner in the Fleet ever since, where in
a most cruel manner he hath been put into iron
fetters, both hands and legs, which caused a
toast dangerous sickuesi that continued six
months ; and after some smalt recovery, was
agsin laid in irons, which caused at least five
months sickucis, more dangerouj! than the for-
mer. During which time oi sickness, they most
inhiimnnlv denied his friends to come and see
him,uniil they would give them money for their
admittance, and tbey bare denied many to
come at all ; and have beaten and kicked, and
otherwise most shamefully abused, sucb his
and to bring him food and necessaries to
his life, and also have kept lits servant from him,
and his food. So that if he had not been re-
lieved by stealth of liis fellow prisoners, he bad
been kept from any fiiod at all, ht above the
space ot 10 days'togftlier; and tbe prisoners
Ihiit out of pity have relieved him, have been
must cruelly puniithed, and tlie keepers have
not forborn tu conf^ themselves, that tbey
sllould have starved him lung ago, had nat the
prisoners relieved him. And brides ail this,
they hnve most cruelly beaten and wounded
him, to the hazard of his limbs, and danger of
his life, hud he oOl been rescued and saved bji
the prisoners of tbe same house. In wlHt^h most
years and a
the same, under the qierciles* hands of the
warden of Ihe Fleet, who hmh denied lawlul
liberty to hi* prisoner, for (hat he tinih said, be
must observe the man that has lo great a sway
in the kingdom, intimating ttie Archbishop.—
All which his deplored condition and lament-
able miseries, bemost humbly presentelh to thia
most HonourableAssembly, beseeching them to
be pleased to cast an eye of cotupassion to-
wards bim, and to afford him such relief from
the Censure and hard imprisonment, as may
seem gooii to your wisdoms, who otherwise a
like to perish under the hands of merciless ntea.
And your Petitioner ihall ever pray, as in duty
lie is bound, to tbe Lord to bless and prosper
this Honourable Assembly. John Lilbdbh."
At the debate of which, there was not alittia
oppositioii by some, who, as I conceive, thoaght
1 was not capable of eiguving justice, althongh
to my knowledge I never did an act in alt my
life that put me out of the protection of tbe
law, or ihilt tended to the disfrancliising me of*
being a deniten and a freeman of England ;
and therefore ought to enjoy as great a privi-
lege in the eojoymeat of tlie benefit of tbe law
of England, as any free denizen of England
whatsoever, by what nameortitle-soev^ be be
called. The issue of which debate, so much
as I hste under the Clerk's hand, thus Ibl-
lowetli 1
" Bie Luns, 10 Nov. 1045.
" Ordered, &c. Thai the Vote formerijf
passed in this house, concerning Ibe proceej-
jngs against lieat. col. Ulbum in tbe Star*
Chamber, be forthwith transmitted to the lords,"
" Ordered, &c. That it be referred to tba
Committee of Accounts to cast up and ttnte th»
accounts nf lieuL col. Lilbura, and to certify
wkit is due to him, to this bouse.
" U. Elsiboe, Cler. Pari. D. Com."
After passing these Votes I found quick di»-
patch to the Lords; and upon the 1st sf Dec.
1045, by special decree, ihey tooli off -the Fina
set upon ne by the Star-Chanber ; and after-
wards at iheir open bar judicially, upon tlw
i:4ih of Feb. 1646, appointed me » ■eUmt
heating de novo of th« whole iMtter ; and at*
13i7] STATETRIALS, ISCbaklesL \C37.^TrialqfUli>um.aiidTnanc», [Mli
tinned Mr. John Brtdiliaw and Mr. John Cook |
Licui.Cot. JouN Lii.DCBH'sSufffiine*, as thfj
were lepreseiited Hiid proted before tlu:
riiilit tioiiuiir.tblc tlie Elouae of Pcen, in
P.irliHiueiit uaieiiiblt:d, tlie 13ili day ul* Fe-
bruary, l(il5.
Mr. Bradiliaw and Mr. Crook being a'signed
f-.r C'.iuii!*! nidi the said Mr, IJlbum ; Mr.
Drnd^haw having siiiiinctly, aaA so Iruly
opened ilie Case, us if he hfld bptii nn eye-
witness of his clttnt's sufferings, Rcqiiainied
iheir lurdsliips, that tlie lanie liud received a
lull oud ti'lenm bearing brtbre a committee uf
the honounibie house nfcoraninns : npon vrbote
repo't it wei by ihat lionoumiile liouse. May 4,
1641, Tcwilvea upon tlie question, < Thnt the
* Sentence of tlie Stnr-Cllamber f iv;rn against
' John Lilburn is illegal, and agniiist the Liberty
' of theSjbject; and alio bloody, tricked, crae I,
' barbaroii!!, and tjraimical;' and likewise fur-
tlier resolved upoii tlie question, ' That repa-
' ration ouglit to be liven to Mr. Lilbnm, for
' his imprisonment, sufibiings and losses, sus-
' lained by iliat illegal Sentpnce.* '""'
_ ..en'ii* before your hnnouts to lay ope i
the illegality of thm Sentence, luid *U the pro.
ceedings thereupon, tuid to cmve your lord-
sbipsjustice for lepnrations, proportionable to
our client's tufferinps.
And in the first [jlaceheprpsentednntjrder,
whereby Mr. l.ilbam was firsl ille^llr attach-
ed, and cominitled to the prison of tfie Gate-
house, n hicfa was read in these n'nrd) r
' SoLto Dec. *. D. 1637. Kmannvlt attach'
■ direct. Wrattge, et Flainsteed, pro corpori*,
< capt. Johannis Lilburn dc civitate I.oiidoi), ml
' ironiGdiateadnutteDd,6ic. Sljennl. jHrLambe,
' Gwynn, et Aylett. Ex direcrionc lliiker c!er.
' cappellani Lond. Eiam. Edwiirdus Lalb»m,
' Beg. Itegi Dcput.'
The English of which tlius rullo«eili :
' The 6lh Dec. 1037. There issued an at-
' tachiDi'iit directed to Wr^gee uud Flamsteed,
' for ihe taking of the body of John Lilbuni, of
* the city of London, and lo brin§ im mediately,
' 6ic. Signed by Laiube, Girynn, and Aylett.
' B^ direction of the court, Baker, clerk chap-
' lum. ILxamiDCd hy Edward Lathaui, Deputy
'ofthe RcniMer."
VVIuch Order being read, 5If. Bradsbaw ol>-
seried, that the orlj^inal iiupriionmenl itself was
illegal, because Ibei never conrenied Mr. Lil-
burn to speak Ibrhimskir, imt exn mined him
upon any crime. BnC, ni^ lixdR, it is no miiriel
lliat such kind of injustice as this proceeded
from those high cominissiiaiers, bcctufttt was
their iHual pnirtice to be sttadiers. Judges,
^•ilers Slid exeeuiiuiien llienueUes, without
regard of any legtJ way of prnceedinj^. He
tbcn desired their lordstiips, that the Sentence
anintt Mr. Lilburn in lite SiBr-C ham ber m^b'
tjso b« read, which vrat ooconliiigly dnDe, vii.
■ In Cam. Stel. coratn Cane, ibidem ISdie Feb.
' anno decimo tertio Car. reg. Lord Coreo-
' try,Lord-Ke«per, &c.
' Whereas upou information to this Conn,
■ the !)ih of Feb., by sir John BunLt tni. hit
' majesty's Atmrliey-Genctal, that John U-
' burn and John Whanoo, ttien present at the
' bar, were the Sllh of Jan. last, ordered to S(
' (aumtned upmi liiterroj^tnries, touching ilieir
' unlawful printing, iaipotling, publishing and
' dispersing of liliellaus and seditious Bout«,
' contrary to ttie decree of tliis court, tihlcb ku
' veiified by Afidsvit ; and being braueibt up Ij
' the office to appear and be examined, the said
' IJIburii refused lo * appear ; mod both of
' them denied in tnke an Umli to make tme
■ answer to I nterrogj lories, as appearetl bv ibe
' CcniScaie of Mr. Goad, deputy-clerk of thii
' court : the court did on that day order. That
' thnr appearances should then lie recorded,
' they being present io court as afuresfud ; and |
' that in respect tlie said delinquents did ibea
' ngnin contcmptuou^y refuse to take tbor
' oaths, tendered unto ihcm in open court, tl«y
' >hauld be retnnnitedto the prison of the Fleet,
' there to reniaiiiclose prisoner*, until thcjco*-
' form themselves in obedience to take llieit
' ontlis, and be examined ; and that unless they
' did take their oaths, and yield to be eiamiiked
' by Monday nigtit then next follunring, and
' now lust past, their lurdships would un this
* sitting day proceed to a Censure against them
' fir liiL-ir contcrnptt therein.
* Now this day tlie said Lilbnm and Wbanoa
' l«ine ngain brouRbiunto tlie bar, his majesty's
' said Attorney informed thiillonourubleCoui;,
' tbnt they still continncd in their foioiet "b-
' stinacv, nnd contemptuou-ily refuscJ to lake
' their Oaths, to make true nuiwtr tu llie t In-
' lermgntories, although ihcy liad been sent tor,
' mill their Oaths offered to be ^iien unto t^iem
' by Mr. Goad, deputy-clerk ol this court, who
' now certified the same in court. And there-
' tore bis majesty's said Attorney humbly prayed
' on Ids majesty's behalf, Hiat their lordships
' wiiulil now proceed to Censure against the
* s.-ii[l deliniguents for their great contempts and
' dtwibediencc therein. Whereupon their loid-
' ships endeflTOored by fair persuasions to draw
' tliemto mnfcirmily and obedience; and withal
' offered, tliat if yet ibey would .'nbniit and take
* thtirOiilhs,their lordships would accept theit-
' of, and not proceed lo censure against iticia.
' Bucsucb wa^theiasuffemble disobedience aud
* cnotempt of the said ilelinqnents, iliat tbr*
' slill persisted in their former obstinacy, aiul
' witrully refused to lake iheir oaths, in re*
' speci wherenf ilie whole Court did, with an
' unaoiinnus con;«nl, declare and adjudge the
' Slid LilbOW nnd Wharton guilty of a very hich
* Lllbum did enter his name, but refuting to
.give them money they put out his name again.
t They liefer shewed the Inlerrogatories to
Lilburn, though be desired the taght of them,
that so lie might know wbat bedidiwnr to.
1 »1D] STATE TRIALS, 1 3 Chables I. 1 1
* contempt, and offence of dnngeiMus coiite-
* auence aiiii evil example, and woithj to ud-
' dergoa ve^vsha^^J,e^e□JplarJnlld»e^e^eCen-
* sure, which inny deler . others from tlie like
' presumptuous biildiieu, id rerusing lo lake a
' legal Oath ;* without which, maiij^ greuc and
* exorbitniitoflenceslotJie prejudice aiiddiuitter
' ,ol' his iDBJCGty, liis kiiigdonu, and luvin^ buli-
' jecls, mit^ht go awajr undiscovered and un-
' punislied. Andlherelbre tlifirlordaliipa boi
* to the Kieer, tliere to remain until they cuiv-
* form ljieiiigelv« in obedience to the oideni of
<. this court, and (hut they sbnll pay 50Uf. a-
* pifce for ilieir seter^t lines to Ina majesty's
* use; and before their tnlargeiuentii out of tne
' Fleet, become liouiid Hith good sureties im
' ilieir good bcbaviuur. Aud to tlie end that
* others may be more deterred from d^iring lo
* olfend iu the like kind btjeafkr, tlie court
' halb further ordered and decreed, I'liat the
*. Buid John Lilhurn shall be wbippeil through
* tlie street, from the prison of the i'lect unto
* tlie pillory, to be erected at such time and iu
■ such place as this court sball iiold lit niid di-
' reel; aud that hoth be and ilie luid VVbartoii.
' shall be both then tet in the said [lUlory, and
' from thence beieturned to the Fleet, thereto
' remain according to (bii decree.
'JoiiN ABTnun, Dep.'
At the concluding of which, Mr. Bradshaw
obterved, th,it this Sentence v/mj'tlo ite tt,
guilty of its own death ; ibc ground whereof
being, because Mr. Lilbum refused to take an
Oath, to answer all such qucscionsas should be
demanded of htm, it bung contrary lo tfae laws
of Goil, nature, and die kingdom, f<ir any man
to be his own accuser; the execution of which
cruel and bloody Sentence was proved by
several Witnesses of quality and good repute
upon oatli at their lordships bar, the substance
of whose testimony was :
In the first place, Mr." Tkomat Smith, mer-
chant, upon his oath declared to their lordships.
That he saw Mr. IJlburn lied to a cart at Fleet-
Iiridgc, being etrippnl from the waist upward,
and whipped from thence to Westminster j and
that so near as he was able to judge, every two,
three or four step* he had a laab, with a whip
that he was sure had two br three cords tied
full of knots; and for the number ho did not
judge them sn few as &00, and he thought that
if he sliould say 500 and 500, he should not say
nmlfs: hut 500 he was confident was llic lease
And that he saw him set upon the pillory, &c.
the atiicer>i being very ctuel towards him, or
any that spoke unto him.
Tlie next witness was Mrs. Mary Uorman ;
the substance of whose testimony upon oath
was, that she saw Mr. Lilbum whipped from
Fleet-bridge to Westminster, in such a bnrbar-
621 .—jbr puhlUhiag Seditious Booh. [1356
ous and cruel manner, that tlie was not able to
eiprcis it, and that she did believe that both
his shoulders were swelled almost as b^ as a
ptniiy-loaf, with the bruises of the knotted
cords ; and that she did see him set upon ihe
Eillory iiumediatclv, above the apace of two
•luvi, bare-headed, the sun shilling very hot,
and he took occasion to declare tb^ unjustuesi
uf his Sentence, upon which ihe warden of itle
rket caused hiin ti, be gauged above an hour,
and did it with such crutlty, that he iiinde iii«
mouth to bleed.
3Vit. lliggf. his surgeon, testified upon oath to
this eilect; That he did not see bis patient Mr.
Lilburii wliipped, but beiug dosireiTto perform
the ofticeof a sui'geon to him, he that day drest
hi. back, nhith was one nf [he miser. .bit at that
i-ver he did set; fur the wulta in bis back, made
by his cruel nhipplijg, werp bjg^crthan tnhacco- .
pipes, and that be saw biiu set in the pillory,
and gagged.
And Air. Tiomns llvtoei upon oath testified
to this effeui ; Tb:tt be did see Mr. Lilbum set
upon tile pitlurv, above (as he judged) the space
or two hours, Ihe sun shining very hot, and tbfcj
would not sufibr him to have any cover upon
bis bead ; and he taking occa»on to speak uf
the bishops cruelty towards hiin, and how un-
justly tlicy had caused him lo be dealt with,
the warden of the fleet caused him to be gagged
in such a cruel manoer.^asif he would have
torn his j.iws in pieces, insomuch tliat the blood
caine out of bis mouth.
In the Deit place, nieeond Sentence made
in the Inner St*r-Chamber was read, which
thus followeth:
• The sum of which was, ' You shall swear to
make true ansvier to all things that are aslicd
jou, so help you God.'
' WhetoiiB John Lilburn, prixiner in the Fleet
' by Sentence in the Static ham ber, did tbis
' dujr suffer condign punishment for his stvcral
■ oflcnces, bv whipping at a cart, and standing
' in tlie pillory; and as their lordships were
'this day informed, during the lime tlie t his
' body was under tlie said execution, audaci-
' ous^ and wicktidly did not only utter suodry
' scandalous Specdies, but likewise ecattered
' divers copies of sediiious Books amongst tha
' people that beheld ihe said execution ; for
' which very thing, amongst other ofleuces of
< like nature, he luith been censured in the said
■ court, by the aforesaid Sentence : it Is there-
' fore by their loriJsbi|is ordered, that the said
■ John Ijlhum should be laid alone wjtb
' irons on ills hands aud legs, in the wards of
* the Fleet, where the basest and meanest sort
' of prisoners are used to be put ; aitd tbat the
' warden of the Fleet lake special caie lo bin*
' der the resort of any persons whatsoever unto
■ liim; and pacticularly, that he be not sup-
' plied with money from, any friend ; and that
' be lake special notice of all letters, writings,
■ and books brought unto faim, and seize anj
1351] STATETRULS, ISCh/hhesI. j6-i7.~THalqftilbiim,a»d morion, iXSoS.
' deliver the larae unto their InnUhipi, and tnki
le who they be thot re-
' iort until the said prunn, to visit the said Lil-
' burn, or tn speak with him, and int'onn the
' board tbereuf And ir was lastljr ordured,
* that all pereons that skull be hereafter pro-
' duced to receive corpora) puniahmcDt, acconl-
' ing [D sentence of that court, at bjr order of
' the boRrd, shall have their ganuenti searched
* before tliej be brought fiinli, and neither
' writini; nor other thing suffered to be ubuut
'them; and their hands likeitise to be bound
' daring the time tliey are under puoiihnirnt.
' Where.if, together with the other preuiises,
' the said warden of the Fleet is hereby required
' to toke notice, and to have especiul care,
' ibnt this their lordships order be accurdingi;
' observed
• Examimdptr Dt;pLEY Carletoh.'
And the eiecutioii of this latter Sentence in
K most barbarous and inhuman uianaer, was
fiunctually proved by sufficient witiietses, ss
dUovreth; vix. Mr. Higgi liis surgeon again
Ustitied, That that night Mr. Lilbiim suffered,
be was had back to the Fliret, and he repairine
ti Dr, Grant, cu crave his advice, he advised
him to let his patient blood, to prevent ■ fever;
and he accordingly came the next morning to
the Fleet to let liis patient blood, and dress his
sores, but lie fonno him locked up close m a
Touni,and was by the officers of the Fleet denied
access unto him. Whereupon he immediately
went to the warden, being then at West-
initisler, wlu) denied hiiD access to the said Mr.
lilhurn, till the alletuoon that he came home :
which was a great act of cruelty, nnd uiucli to
the danger of Mr. Lilburu's Itealth, and wel-
tore t and the next djy they removed him down
to the common gaol, viiere they laid him in
irons, and several limes wounded him, to the
extreme hazard of his life, and several times
denied me access to him in his extremity.
Dr. HuVmrd, Justice of the Pe:tce, made
oath to this elTect: That when Mr. Lilbnrn
was prisoner in the Fleet, he was desired as a
physician to >-ijit him ; and going fo io do, he
was again and again denied access to him ; hut
upon much importunity to the warden, he whs
admitted to him, whom he fbuqfl in an extreme
violent fever, lying in irons upon both handi
and legs, t» the extreme hiuard of Lis life.
Mrs. Mnry Vurman further declared, Tliat
■tier Mr. Lilbum had suffered, she went often
to visit him, who was laid io irons, and his
friends denied access to him; and that the
Officers of ihe Fleet strongly endeavoured to
(tarve him : so thai many times his friends were
forced to bring bis meat to the poor men's bae,
■nd give them raonrj m convey jt toliim through
a hole in n woll betwiit tliem and him. ftlr.
Thomas Hawes further declared, that after Mr.
Lilburn suffered, he odea went to visit him,
and was beat by the Gaolcri, and wni in danger
to have lost his life for so doing; and that Ihcy
■o tlroDgly laboured to itarve Mr. lilbnm,
tbftt ittj were forced to convey his diet to him
by the poor men that begged at the gnte : hat
tlw Gaolen (mding out that Mr. Uibam KOt
hi* diet that way, they dealt so cmelty with the
poor men, ihatMr. IJlbum was deprired of thai
way of relief, and then hisfrieods eot the soa of
one Archer that was prisoner in tfae ncu f«Mn
to him, for accusing tfae deputy of InHwid fcr
tanrdering one Esmond, to convey hia *>cnab
to him : which was doae by stealth, through ■
hole where a board was pulled up in fais ftoor,
when the restof theprisooenwefeat the <:hapd
at service; and, my lords, dirers times the
conveying of his meat t« him, cost him and hs
friends, upon (he prisoners, &c. i>ore than the
meat itseU*.
Rohtrt Ellit, some lime a fellow-prisimeT
with Mr. Lilburn in the Fleet, upon oath de-
clared before their lordships, that the oflkeii
of the Fleet, af^r they bruugtit Mr. Ulbnra
ioto the common wards, used Liin ver^ Iwrhar-
ously und cruelly, laying him for a king dme ii
irons, keeping his friends fi-om hitu, ami tsi
victuals, and several times had like to bate
slain, and murdered him, ii>d be veiily belims
had effected it, if lie had not helped him; for
which ihey tooh hij bed from him, lud put him
off the charily, and kept him five weeks in a
dungeon, and bad like to fanve murdered hifa,
and aflerwards reroovrd him to the King's-
Bench, that so they might the more easilT hive
their wills of Mr. Lilborn. &c.
Their Lordships bebg satisfied of the injus-
tice and illegality of the proceedings, Mr. Srai-
sftnvBoid, I'hathcconceived no man'ssuSWin**
in the kingdom had been so great aa hii clies^
were: for a gentleman to be aa cruelly lortni^
ed and whipped, pilloried, gngged, close impri-
soned, ironed, beatknd wounded, himI tbatcoiH
Irary to law, is a cruelty unheard of, and tbaie-
fore hoped that for such unparalleled suficrit^,
and oppresuons, the l^r hand of their lordships
honourable jnstice would give and reach hna
fbith uuparalteled damages ; and though many
□f his Judges that did him injustice be dead,
yet he hoped the hand of Jutic« at tbeir ho-
nours joined with the honourable houac of
conunoDs, will be so long, m to mch ifaeii
living and surviving estates, and out o'~ '
&C. make him speedy, large and u
reparations.
and s
in the behalf ofMr.LiW
ioicd his Argumen
(I,) Imprisonment, nfierebj a man is burial
ulive, loses the comfort and Eienefit of his five
senses, and is made ' Corpus immobile l^is,'
ihe unmoveablesubjectof tbelaw, or as a dead
carcase. It is trne, that in itself it is theeasiest
of all corporal punishmenis : but the cjoaiinit-
ance of it, makes it lUch a lingering consump-
tion, that it i) better to be apon tbe rack ao
hour, than to be imprisoned a year; as it ii
better to be once wet tq ibe skm, than la he
subject to a perpetual droppiug: especially for
an active spirit, there is dd Hcb tanneDt » to
1353J STATETRlAlS,\iCa\ja£sL 1637.— JbrpiAlisliingStditioiaBoolu. [13M
deprive him of liberty; for actiTe Tlieseus nas
condemned on!;,' to sit still; th«re is no end of
such amiser)', as tlie heathen persecuting tjirsnt
■aid, ' l^ondum cibi redii in grntiam;' to )iut a
man out of hi^ [jnin, was iIwnjs counted a favour.
But Mr. Lilliurn's impriEonraent was ageni-
vated b; three steps or gradatiouE. 1. A close
Imprisiinmenl, not the dearest fciend to come
(ohimi we donotfindtbat aajoflhe primi-
tive Lhrisciatis vere used so bj the tjniiils, for
then that henvj charge might be answered in
the scripture, ' I was in prison and ye visfted
' me not ;' extraordinary matters of slate aiid
high concernments always excepted; but the
suri^n nas not permitted same time to come
to lUr. Lilbum to drew bim, nor tlie physician
<rhen he »as in a fever; n cruelty unlieard of
amonpt tlie Turks 1 fur they are careful o/ their
•laves in their sickness, and fatten them, that
they may endure their blows; but it is loo pro-
bable that those which »ere Mr, Lilburn's ma-
licious enemies, did too much thirst after bis
blood. 3. The keepers were ordered to take
care that no money be conveyed tu him, which
argues ihat they had a desire to itarve him : the
Prophet saith, ' It is better to die by the iword,
* than famine,' which is tbe greatest of all tur-
tncnts; for all punishments may be under^ne
by patience, but only hunger: which the more
any man thinks by patience to overcome, the
more violent it is. Undoubtedly, had it not
been for the pity of some poor resolute fellow-
prisoners, Mr. Xilbum bad been starved to
death ; far worse than any of the four Roman
punishments, which were lapidalie, comhalio,
decollutio, ttnmgulatio, atoning, burning, be-
heading, and (trangling. How severely, yet
most justly, (lid the same Judges several times
puni«li the intent to poison or destroy another
> ntnn? Thegoingabouttomurder,oay,the|(ivirig
of tbe lye, because it is preparalury to murder, by
pro votingqunrrels, was ceosurablein that court;
rt niutlojiirtiori, much more frnm the stronger,
then in this case used, vrtiere there was so much
crudty iultictcd, that death might probably
have ensued, had not God by his extraordinary
mercy supported him in those sad afilictiong,
tho«e unjust judges for transgressing not only
the bonds of humanity, but all the rules of
their own ordinary Justice, ooght to make Mr,
Ulburn answerable satisfaction. S. This Im-
prisonment was Ibr about three years, until ha
petitioned the parliament. Many times the
power; because. he would not accuse himself
as they desired, lliey might have in a passion
conunilted liim, and the sun might have gone
down upon their wrath; nay, the rporin might
have mode har peragratLon, or the summer
aeason might have melted ilietr frozen con-
sciences, or the winter cold have allaved the
beat of their malice, or the sun might have
made his revolution, but their malice continued
tiiree years, and had not he been delivered hy
tbe justice of the parliament, io probability
night have cootinued for ever.
(t.) Wbippii^ a most painfnt and ibaneful
punishment ; tlagellalions and tcouigings bdog
for alavi^ mid incorrigible rogues, and hedge-
robbers. Ill It Eliuibeth one Cartwrigbt
brought a slave from Hussia, and would icour^e
him LTuelly, for which he was questioned; and
it was resolved, that England vias too pure an
air for slaves to hreathe in; end it was often
resolved in the Star-Chamber, that iro gentle-
man was to be whipped for any offence what-
soeier: it being well known tliat John Ulbum')
ancestors have been ancient gentlemen, and
ihiit which these Judgea could not be ignorant
of, efipecially the Eatl-Marehal, who i» pre-
sumed to know all the ancient gentry in tbtt
fcinedom. But the like whipping wns never
read of amongst ths Assyrians, Persians, Gre-
cians, or Homans. For, 1. It was from tbe
Fleet to Wesiminiter (ubove a mile disiance)
a great concourse and confluence of periple
IiMiking unun him, as if he bad been some Ka>-
serable slave, 3. He received every two or
steps a blow, 600 strokes at the least;
for 0
; Mr.
, lb»t
nlong niih bim, testified that so fi
able in judge, he received £iOO or 1000, but of
Ihe £r$t he was most certain ; and this was
with a (reble-corded whip, with at least twenty
knots upon it.
Amongst the Romans no malefactor had
ever above 40 stripes, and every stroke stood
for three stripes, for tbe whip was of three
ihongi : and but one boot at the end of every
thong. St. Paul received tbirty-uine stripes,
which was hut thirteen blows. Not long since
io Orleans, a priest was sentenced to b«
•hipped for fornication, havinj^ abased a puot
maid, telling her tbuC their popish St. Frnncia .
would come and lie with her such a night, at
which time he personated and feigned himself
to be St. Francis, and was taken in bed with
her ; and it was earnestly pressed by the kite's
Advocates, that he might receive 14 blows with
a three-corded whip, which is constantly used
for such catti||ation!i, because it was an alioaii-
uable wickedness i but tbe Judges would sot
suffer him to have above 13 blows, because
ampliandi lunf faaorti, favours ere to be iu-
larged. And in doubtful matters it must al-
ways he presumed Ibr clemency and gentle-
ness; accoidmg to which account, Mr. Lilburi)
received 10,000 siripesi for io every blow tbeie
was ao stripes, hj reason of the 20 knots, which
being multiplied is 10,000, and in every strip?
ihere was shoma and pain, compression of tiM
flesh, bruisings and effusion of blood.
(3,) The Pillory, a punishment something
painful, but exceeding shnjaeful, and most ter-
rible 10 a generous nature, to stand two hours
in open view of all men, as if he had been un-
worthy to tread upon the earth, the sun shining
very hot ii|i<in him, and not suffered to keep on
his hat ; anit this ipusediately after his cruel
whipping, thot so tbay might put bim to all tiia
torture and paia that they could, argues abund-
BQce of wra^ and nwtico. This punishmeDt
of standing upon tha pillory, vim first invented
for MoiiBUbaokj aod Uiwb, that having
13551 STATE TRIALS, 13 CnAiiui I
gotten upon banks and farms, to wrong nnd
abuse (ne people, vere eialted in the game
kind, to stand conipicuous to the view and
open shame of the people; liuc Ibr a gentleman
to be so served, wns nei'er iteard iiT, unless by
that cruel court.
(4.) Gagging, an unmanW and barbarous cru-
elty, to be eiercised upon beasts, not roen, for
man differs from brutes both ralione et oralione,
in reason and speech ; a punishment never
heard of in any sge ; outting out of Cunguei,
and perforation, in cases of blasphemy have
been heard of, but never in a matter of^such a
nature ; and this to continue for above an hour,
till the biood gashed out of fail month, as if
they would have pluclied his j avis in pieces, and
nil this for aothing ; O insufferable torments !
So that by his Imprisonment he was made a
stock, a dend ituuk, or picture of a man, tliat
liath eyes and sees Dot, bands and handles uot,
&c. By Whipping they endeavoured to make
him a rogue, or a slave; by the third puoish-
roent of the Pillory, to male him a cheater,
guilty of forgery oud perjory ; and by Oaggiiie,
tu make him a beast, and lo upon the whole
matter to deprive Iiim of his reasonable soul,
such cruelties cliat were never invented but by
tygers and wolves in human shapes ' ferocitas
' luporuiD, in humana figurs.' But then the
petvins that were so cruel and tyrannical ag-
gravates the olTence. 1. This cruelty was
commanded to be executed bv an eminent
' court of justice, professing chriltianity, ' Pes-
' sima est injuititia qute Ri sub colore Justius :
it is the greatest injustice to oppress and do
injury, under a pretence of justice. How often
Whs It resolved in that court, that for a justice
of peace or conslalile to commit a riot, was ten
times more severely punishable than in a
common person, because it is to use, or rather
abuse that sword of uutliority, to commit or
countenance an unlawful action, which was
ordained andpul inio their hands to suppress it.
3. The eminency of the persons augments
the offence, ' qualitiis persons auget peccn-
tum ;' for a gentleman to act against the rule
of the law and gentility, is more reprehensible
than in vulgar persons. It was called the
Court of Stai-Chamber, from the eminency of
Ae person's, which were Judees : stars of the
greater magaitudes, as being the highest conrt
of ordinary justice; but Mr. Lilbum's Judves,
instead of putting on the garment of justice,
were cloathed from head to fnt, and their con-
science oiled and moistened, with cruelty and
injustice mixed with the most poisoned malice
that ever entered into the hearts of any judges.
And though some of them be dead, yet Justice
lires though the party be dead : whatsoever be-
■omes of ihem, their estates ought to make sa-
tisfaction according to their own rules, ' qui
' non luet in corpore, solvit in bursa ;' he that
suffers not in his body, must suffer in his purse.
*A principal actor m this bloody tragedy, was
the Lord-Keeper Coventry, not less eminent in
cruelty than tu place, judge of the highest seat
of mercy, tb* Cuncery, which abated the edge
1657.— Trial tf LiJbum, and Wharlaa, [1356
of the low, when it is too keen ; for the chi^
Judge of mercy to degent;ntle into & Kiva^c
crudty, not heard of nmongst tlie Barbariaiu,
bow heinous is it? Not to speak any thing of
■he decapitated archbishop, that monster of
cruelty, and subtlety, whose estate we bar it
dead with him, and therefore little can b« ex-
pected irom it.
The bishop of London, then Lord-Treatfirer,
was a principal sentencer of Air. Lilbum : by
their own canons, no bishiip ought to hatp a
hand in blood, because they pretend lo be miM
shepherds, but cruelty was their genius.
The earl of Arundel was of an imbittered
spirit against Mr. Lilburn, nothing but corporal
punishment would allay the beat of his malice ;
who being Earl-Marshal, could not be icooraot
that John Lilbum was a gentleman : for him
that by his place waB to protect all gentlemtn
from injuries, and should scorn to be active in
the inflicting sucli corporal, ignominious, cruet
punishments upon a gentleman, is a transcend-
ent trangrcssion against the laws of state and
honour. It hath been censurable in tliat court,
to speak contemptuous words of a gentleman ;
and how often had he ordered satisfaction, Ibr
saying such a one is no gentleman } And yet
the same court and persons not only to say a
l>endeman is a rogue, but so to use him, as Mr.
Lilburn was, is the greatest scandal to the
Eublic justice of the kingdom, that hath been
eard af.
The Judges assistants, that are called the
' Fathers of the Law,' and are said lo carry
law in their breastg, fur them to begin and pro-
mote such ail unjust and jlleeal Senterttc, fbr
them that aae set as cenbnds to watch over
and preserve the people's liberties, to bwtaj
a poor gentleman into the hands of merciless
men, was an offence of nn eiceeding liieh na-
ture : for had they declared the iUeg^ij of
those proceedings, and protested against it, as
by virtue of their places (in duty) they ought
til have done, it might have prevented the sea-
tence. If the proceeding bad been r^ular by
Infonnations, and Exammations, or ore tenai,
as it was not, tuilesa there had been some direct
proof or speaking circumstance of very proba-
ble presumption, that Mr. Lilburn had beeo
guilty of some high crime; it had been a griev-
ous thing in them to have assisted iu so croel
punishments. But when the pretence was no
other, but cnnceming some of Dr. Bastwick's,
Mr. Burtou's or Mr. Prynne's Books, which
they knew cuutd not be any breach of the
peace, and that in the Stat-Chamber, where
there was no information, as in Mr. Lilbum's
case, to administer an Oath, was all ooe with
the High-Commission, nnd directly contrary to
the Petition of Right, in 3 Car. andjustice Junea
had BO reason bi inflicting the corpora] pa-
nishment.
But because Mr. IJIbarn was a yoncig man,
therefore it was Et be should be punished ; Is
not this to turn Justice into wormwood i Sod
judges have ever been the most dangerous peali
to a state and kingdtiin, and in fomet tuuff,
1357] STATE TRIALS, 13 Cha&les I. 1&37. —JbrpiMiMng Seditiout BoAs. [1354
fur lesi o&ence, most severely punished in their
pennni and estates. Tlie lord CoUlantoo
Uiintod ciceeilingly after ihe bloud of this
Cir uentUmaii, and tl>e high-<»inniiMioDcn
I their hnnds as deep as any o£ the real, in
ref[anl ilmt by tlieit iramut lie wo* bnt com-
luilled ; the moat ui^ust and tyrannicnl thai
ever Has huard of, tii conimaud a poor geti-
lleinao to be sent tu priion, uitliout C0Di>eniiug
him before lliein, or askinj; him whether lie
I satisfy the m
ilbea
ms guiltv of any misHen
patiuu of autbority, taking the sword of justice
uiti) tlieir own luiiids, not curing to desuoy a
poor gentlemnn, so as they might curry fsvouc
with the prelates their giand pntrom : those
lugh-comtQissiuaers making iliemselves judges,
gaolers, and executionen, and what Dot, to de-
Kioy the innocent.
It is considerable what punishment the
Gsulera and Eiecutioneia of this cruel Sen-
tence liave deserred -. for however if a writ be
directed to a slieriff, commBiuling him to take
thebody of onewhu it a peer of the realm, or
A privlteged person, the of&cer is excused by
hi) warraor ; yet wjien puniihmenti are clearly
X' 1st the laiT of God, nature, and nationi,
h prohibit all such crueltiei and inhuma-
nities ; to make them bleed for the blood of
Mr. Ulbun), would be an honourable piece of
justice, and a ptecedeut of mucb safety to the
sul^ecu in after-times, and officers would not
dare to be so unmerciruUy cruel ; as the sherifls
smarted for the Sbip-Money, though they bad
process from the Exchequer.
Mr. Ulburn's sufferings are beyond expres-
sion, aad no honest heart but is feelingly sen-
sible dfevery blow tbai was giveu_hiBi ; in his
Imprisonment, Whipping, Pillorj, Gngging,
Beating), Ilunger-bitingi, and the Irons laid
upon hiru, every true-hearted Englishman, that
standi for the laws and liberties of the subject,
was so used, and abused; for it might bate
Lee.i any such man's case, as well as his. His
estate quite cxhnusted by tlicir cruelties, his
trade lost, whereby he gained hig livelihood,
being liefore that lime in a hopeful wnji of a
uiercnant, aad wdl known to be Tety indus-
trious in bis calling; a man uctire for the pub-
lic, and by his menta hath procured the title
uf licuieuunt-colonel in the present wars : wliat
damaget the parliameat will be pleased to ad-
judge and order him, be humbly submits tc
their great wisdoms and Itonoomblc justice;
certainly nut nny of lliem would have MfTered
•3 mucli For ten thouinnd pounds.
It is the I/jrd's great mercy that he
•live, haiing conflicted with, and gone tbrou^
luch a sea of ponishments and miaeriea. True
it is, that iu point of reparations, there is no
proportion between money and such corporal
punishments, to a generous spirit : yet as iliere
was never more indignity and a greater disho-
nour to the justice of the kingdom, than by
this nicked Sentence, and tlie cruel execution
slave, to satisfy the malicious and virulent fao'
of juttice :
a very great honour and repar»'
the Public Justice of this land, to give
and adjudge Mr. Lilbum exemplary and pro-
portionable dams^, to he levied out of^tlie
estates of his unjuHt and malicious Judges,
through whose iajuitice he not only sufiered
such cnieltiea Ibr three years, that not one of
tbem would have suffered the like, nor received
of his stripes for many tliousaods ; but lost
Ms trade and livelihood.
The judicial law was blood for blood, an eye
r au eye, tooth for tooth, &c. 'Daniel's ac-
isers were cast into the den of lions, with
their wives and children, though Daniel had no
hurt b^amiracle of merc^; by the equity and
morality whereof, Mr. Lilbum ought to have
good and proportionable reparation out of the
es of his unjust judges and tormeutors,
sotigbt for his blood : but that God pre-
served him by his extraordinary love and fa-
• there i-
thereof; thereby proclaiming it to nil the world
■' ■ 1 Eniilisli gentleman ' '
Ibat :
t be mode i
be encouraged, that Justice w
a mighty slieam, when it shall be e
upon the greatest offenders; as now
good hopes that Mr. Lilbum shall by oi
of pariioment have speedily good dami „
swerable to bis great suffermgs, ordered and
a^ndged him, to be raised out of the tstatcs
of his unjust judges, that may be paid unto
him without further eipence, who hath been
at such extraordinary charge* about the same,
10 his reparation may be not only just, but
nable, bv which he shall be obliged to
ventoro his life, and all that is dear tu him, Bt
formerly he hath done, for his honourable
judges in parliament assembled.
WSerenpon tbc Lords made the fblbnving
Order:
'Die Veneris, 13 Feb. 1645.
' Whereas the cause of John Lilbuni, gent.
' came this day to a hearing at the bar by his
' counsel, being transmitted from tbe bouse of
' commons, concerning a Sentence pronounced
' against him in tbe Star-Cbamber, 13 Feb.
' anno 13 Car. reg. and after an examination
' of the whole proceedings, and a due const-
■ deration of the said Sentence; it is this day
' adjudged, ordered, and determined by the
■ lords in parliament assembled. That tbe said
' Sentence, and all proceedinp thereupon, shall
' forthwitb be for ever totally vacated, obliier-
■ ated, and taken off the file in all conrta
' where they are yet ronaining, ns illegal, and
most unjust, aninst tbe liberty of the sub-
ject, and law of the land, and Magna ChaitR,
and unfit to continue upon reo>rd : And
that the said Ulhum shall be for ever ab-
solutely freed, and totally discharged from
the said Sentence, and all proceedingi there-
' upuM, as fully and amply, as though never any
' such thing had been. And that all eatreat
' and ptoccn in tbe court of Exchequer, ibr
' levying of any Fine, (if W>y such be) shall be
tS69] STATEl^IALS, ISChailuI. |037 THd t^ IMm, and WhvUm, [1361
' obollir ouiuelled mad auide void ; an; thing
* to tbe contrary in unj wiie notwitbiundinE.
' JoH. Bbdwme, CI. Pari:
But n
a that
_ . . . jigning me any reparaUoD*
Dccr^ (the doing of which the home of
mons left uiito tl^m, and the lords according
to former custom looked upon to be tlieir right
JD law to do), 1 prayed their aHigiling me pai^
ticul»r reparatious according to law and juMice,
oiit of the estates of my unjust Judges, that had
dona me so imich wrong; upon which Dew ad-
dresi to them, thej did upon the 5th of March,
1645, order and decree, niid assigned to be
paid unto the wiid Juhn Lilbum, the sum of
1t,000l. far his reparations, which for maDy
reasuiu (as tlieir being aidii^ in tlie wars to the
king, &C.), they filed upon the estates rral and
personal of Francis loid Cottingtou, sir Francis
Wiadebank, and Jamea Ingram, lute Deputy-
Warden ofthePleet; and aflerwHrds by ano-
ther Decree for the present levying thereof, out
of (heir lajids, at eight yean purchase (as they
were before the wars), with the allowance of
iotcreit at 81. per cent, per ann. in cn^e of ob-
■tniction; for ail or an^partofit: and lo this
purpose cauwd an Ordinance to be drawn up,
which fully passed their house the 15, 90, end
ZTth of April, 1646, and afterwards traus-
mitted it to the hou&e of commons, where by
reason of my bloody adversary old sir Henry
Vane's interests, and of my imprisonment by
Manchester's means in the Tower of London,
it lav asleep till the 1st of August, 1648, at
which time 7 or 8,000 of my tru« friends in
London, signed and caused to be delivered a
Petition to the House of Commons for my li-
berty, and the passing of the said Ordinance.
Whereupon tile house made this Order:
' Die Mani«, 1 Augusti 1648. Sir John Hay-
' nard, sir Peter Wen (worth, lord Carre, col.
■ Boswel, col. Ludlow, Mr. Holland, Mr.
' Copley.
' It is referred to this committee, or any
' fii-e of them, to consider how colonel John
' Lilbum may have such satisfaction and allow-
' aiice for his sufferings and losses, as was for-
■ merly intended him by this house.
■ Henhv EiSTKor, CI. Pari. Dom. Com.'
Upon which Order I got the Comtiiittee to
meet, and preferred a Petition to them. Upon
wliicli Petition, the Parliament having disposed
of all that part of the lord Cottington's Estate
that I ihoold hare had, unto the lord Say, and
also compounded with sir Francis Windebank's
heir; the said committee were pleased to Rx it
entirely upon the Lord-Keepers estate, as the
Cincipal guilty man ; of which, when the youiif;
rd Coventry his son and heit, hasrd tWeuf
in France, he came posting to England as in
Mitnze, fearing what such a precedent might
hria% upon hiii), if his falber'ii Estate (then
dead) should be compelled to make me aatis-
ftctioD ; he being so capital in injustice, that
if that course should he taken, liis rsratc lefl
him by his hibrc (if it vrere trebled) would not
Wti«(f bt his faiher'a paljiabls injustice com-
mitted in his life-vme. And Manchester being
in the Itid Bryers with his father, being as un-
just as the other, and having a brother, vu.
George Montague, and other considerable a-
terests in xhe house of commons, so plied thts
friends there, that they put a stop tn the lecoDd
reading of the aforesaid Ordinance. Wbich !
tirst hilly understood bj the Speaker's means,
then my great pretended friend, who one day
began to reason with a member of the house
(and ray special friend) about the uareasan-
ableness to fix my reparations upon the Estate
of the deceased lord Coventry ; nay, or to gire
me any reparations at all out of tlie »tale:i of
chose persons that did me wrong, for fear tha
precedents in time might reach to tbemaelm:
' For air,' said the Speaker, as the fDCmber
told me, * if toy ton and heir should be liable
' in law, to make satisfnclion to all those mea
' (out of that estate I should leave him) that 1
' have in the eye of the law wronged (by i^nii^
' Warrants, Orders, and Decrees, by tbe coib-
' mand of my superiofe) he would soon be a
' beggar, although I should leave him S or
' 6,000f. per annum ;' and therefore desired the
said member's concurrence with him. And for
the clamarona importunity (as they called it)
of me and my friends, to give me reparelioat;
but yet 10 do It in sucb a way, that (he prece-
dent might not in future make themsclres smart
for their injustice to particular men. Of which,
when the said metober told me, he said, Ibey
were resolved to make the commoDweatth nj
Cay-master out of the public Treasury, and to-
)iir over the justness of it with this pre-
tence, ' That Cottineton's estate, &c. formerij
' assigned me, ihey had since disposed of for
' the commonwealth's use to the lord Sny ; and
' tlierefbre now it would be no injustice to tha
' comiuati wealth (ahhough in tbe Slsr-Chua-
' ber it never wronged me) to pay me my repa-
' ration.' And so hnding I was hke to be baf-
fled, I delirered the under-written to every io-
dividual member of the honourable house of
" Tha HumUe Rekbhikaime «f LieuleniH
" Coluncl John Lilburu, Sept. 4, 164S.
'* Honoured sir; Vouchsalc to take notice,
and setiuuSly to consider. That the first week
this present parliament sat, which is now almost
full 8 years ngo, I presented an.humhle Petition
to the house of coramoni, for ju<^tice ami r^l
against the cruel Judges of the High-CunuuB-
Binn-Couit, and the .Star- Cham her; and I li*d
the honour ((he sama day it was presented) (o
be one of the Grst prisoners in Eugtnnd UMt
at liberty by th
a speedy, toll,
ceeding, in the hearing and eiamiiiii^ my
tyrannical sulieriiigi : But by reason of multi-
plicity of pubhc business, and other great ob-
structions, I have not as yet been able to at-
tain tn [he fiill end of my legal and just eipec-
taiion and right, viz. reparations for m^ lon|,
■ad, and tormenting suflerings, by tbe luretaid
unjuu and nDrigbtcou* Jgilgea.— Be phated
1361] STTATETBIAIS, \3eHitixal.lOS7.—forimtMkg&d&i)vBiiokt. CHMIt
»Im favour«blj lo lake notice, ThM upon th«
In August last, thrre was rh humble Pecitiun
presented lo the hoBoucsblG lioiue ^fcouiiiious,
subicribed by man/ thousaudi of lowest citi-'
, &c. luimbly to deiire you
iu mil posseulon nf all your by-past ju^'c Vote*
about mj foresaid tu^rjngs. Upt ~"
and debritJDc of-wliicti Petition, si
that particufar of it, jour house »
to make this «ntulng order :
eading
e pleated
' Die Marti*, 1 Auguiii, 1648. Lord Carre,
■ 'SirJohD Maynard, Sir Peter Weoiworth,
• Col. Botvrel, Col. Ludlow, Mr. Copley,
' Mr. Holland.
* of tbeui,
BiUii
I this Committee, or any fire
ider bow Colonel John Lil-
liurn may have latiaAiction and allowaoce fi>i
his suSeringi and lossrs, as wai foniicrly iu-.
tended liiin by bis luiise.
' Hehrt EurBGE, C^«r. Dm. Com:
Uoto nhicli saiJ .Cotninittee at their first
I presented « Pctitioii ; the Copy of
Hiucu thus followeih :
* To the Honourable tlte Committee of the
' House of Commons, appointeil to consider
' of Lieut. Col. Liiburn's BusincS', in n fei^
' ence to the Star- Chamber; Ibe Humble
' Peutioj) of Lieut. Col. John Ijlbusn.
' Sheweth ; Th'.tl besides your Petitioner's
' inSerinp by reason of bis lianibbmeut into the
'Low-Countries, tic was first committed by
' Dr. Lamb,U*»n, Aylet, 1637, and afterwards
' bad three years impnsunmcoi, in tlie common
' gaol of tlie I'leet, buing n hipped from Fleet-
' Bridge ta Westminster, and enduring ihe
* cruel toriocnt of above 500 stripe; with knot-
' t(d cords. Afterwards being ict in tlie pil-
* lory fnr the space of two hours, nnd by James
* Ingi-am, depuly-vearden of the Fleet, gaggeJ,
' tearing his [nwB ntmost in piebis, withnut or-
' der ; which Sentence was |iveD by lord-
* keeper Cnventrj, earl of Manchester, lArd-
' pri»y-*eal, lord Xewburgh, sir Henry Vftne,
' sen. lord cbief-juaiire Wainston, nnd judge
' Jones. And after the barbarous executioii
'ofiliit Sentence, being April 13,' 1638,'lhe
'saidlurd Coventry, archbishop of Cnnterbury,
' bishop of London, earl of Manchester, earl
*of Arondel, earl of Salisbury, lord Cnttii'gton,
' lord Newburgh, secretary Cook, and Winde-
' bank, passed another Sentence, in effect fnr
' the starvitigof your petitioner, andfnr the tor-
' mentiug of him with iritus upon bands and
' leg* both night nnd day ; nnd by keeping him
' cloee in the common eaoLuftbe Fleet, from the
' apasch of any of his trieuils : All whidi wnsei'
* ecuted witb the Kfeaiest cruelty that could be
' for ths i^>ace ofalmosi 3years tngelber, to the
' apparent hauvd of his life, both by starving
' bim(nhich was withall nrtand industry leve-
< r»l ways attempted); and also by several w-
' saults made upon him by the said Warden's
< raan (instigated thereunto by the said De-
' puty-Warden, to the maiming and wounding
' him, wboreby to this day he is totally dcphv-
VOL. III.
edoftbeus«oflwooflu3 6Dg«ra): Allubich,
wiih much more, too tedious to be here in-
serted, was fully pruved by suffioienl Wituesses,.
before a Committee of your house, whereof
Mr. Francis Rouse hAd the chair; ujioiv
whmic Ite port made, Muy 4, lG41,yourhoiis»
voted, ■ that the Sentence in the StarXtiam-
' bfr^iven against the said Jolm Lilburn.and
' all the proceedings thereupon, wiu ill^nl/
' and against the Liberty of tlie ciibject, ami
' also, bloody, wicked, cruel, batborous, and
■ tyrannical; and that be ou^ht to haie good-
' reparaiiona therefore.' Which Vuiet, by
reason of multiplicity of busioess in your
house, cost your Petitioner some years of iiB'
portunaiQ ajid chargeable atuodance to get
them transmitted le the Lords; which wa>
obtained in February, IQU, the 13th day oF
which month, your Petitioner's whole cause-
was edectually opened at the lords bur, by his
learned counsel, Mr. John Uradshaw and Slr.-
Jobii Cook ; and there every particular again
proved upon oatli, by te)ti;nony of people of
very p>o4 quality, whereupon loey concurrtil
in all things Hith the li'iuse of commoDi, sav-
ing in the mutter of Iteparatiou; bat upon'
the delivery of a true Narrative, (which your
petitioner wiib his owo hands in tbeiame'
month delivered unto every' individual lord)
they made a further Decree, that your Peti-
tiiiner should have 3,000^ reparations out of-
ibe esuies of the said lord Cottio^ton, sir
Francb Windel>aiik, nnd Jnmes Ingram, (or
the reitsous alledged in an Ordinance wbiclf
lliey passed in April, IGIG, and transmiiUd-
to your house; wtiere it hath lain dormant
ever since, nnd is now referred to the consi-
deration of this honourable Committee.
■ Now, forasmuch as by the judicial laws oF
Gad, which are the pure laws of right reasoD,-
hc that wilfully hurteih his neighbouris bound-
In the performance of these five things : 1.
' If it be a blemish or wound, like fof like, or
' to redeem it witli money, thereby to satisfy-
' him fur liis wouad, 3. Fur his pain and-
' torment. 3. For the healing. 4. For liit
' loss of time in his calling. 5. For ibesliame-
' and disgrace :' All which are to be cotui*
dered nccordini; to die quality of the person
damnified ! Whid) reparations are to lie paid-
out of the best of the goads of liim that daot-
iiified him, and that without delay.
' And as the law of God,Bo the lawsof this
natioQ do abbor, and have severely punished,
above all persona, Judges, many times with the
loss of their lives and estates, who under
' colour of law have violated tbeir oaths, and
destroyed the lives, liberties and properties of
■ the people, whom by law they should have
preserved : as may be instanced by ihe 44
' Judges and Justices hanged in one year by
■ king Alfred ; diiers of tbem for lest crimes
■ than liuth been done in the case of your Peti-
' tinner ; as may be read in the Law-Book
' called, < The Mirror of Justire,' p. !39, S48,'
' 341, &c. tfunslated and reprinted this very
parliaamt: And by Justice Thnrf, in Edw.-
44
tS6Sl STATE TRIA12, 13 Charles I. 1637.— TVuiIq/'Ltlhini.iinii IVTiarfon, [1964
* 3') tinw, ifhoirn condemned to denth Tor the
' ' Tiolation of his oath, for taking small sums of
< money in causes depending before htm ; ai
'' appears in the third Partof CoLe'i Inatitucec,
' fol. 155, lie. And b; ihe Lord Cliief Juslice
< Tmilian, Sk. who in full psrliainent in Uich.
* »'» time, wM atlachttd u a Traitor in the
' forenoun, and bad bis throat cut at Tybum in
' the ailemooD, ' because be had given It under
* ' hishand.that the Ifingtnightcreateoiitohim-
' ' self, at bis pleasure, another rule to walk by,
' ' than ihe law of the land prescribes him ;' as
* appean by the Parliament Records in the
■• Tower, by many of your own Declanitioiis,
' and alto by the Chronicles of England.
' No", for as much as your Petitioner's
* sufferings have be«n unpamUeled, and his
* prejudice sustained thereby altogether unre-
* parable, havini; lost his limbs, &c. And for-
* Bsmuch as by the law of God, uature, and
' iiatioQS, reparations for hurts and doraages
' received, ought to be satisfied as far as may
* be ill all persuns, though done by accident,
< and not intentionally, and though through ig-
' norance : much more when the persons uf-
' fending did it knowingly, and on purpose, in
* the face, nay, in spite of the fundamental
* laws of the land, which they were sworn to
* preserve : And for that the repnratioiis in the
' Mid ordinance assigned do scarce amount lo
* what your Petitioner spent in his three years
' sad captivity, and his now almost eight years
' cliBi^eable atteudance, in suing for it, besides
' the loss of a rich and profitable trade for ele-
* ven years together, and bis wounds, tomients,
* smart and disgmce, sustained l>j his said ty-
* rannical sentences.
' He therefore humbly pmyeth the favour
' andjusticeof ihis bonouruble Comtuiltee fcir
' sniDe coQsidernble augmentatiou of his said
' Heparstions ; and the ralber, because hisfel-
< low- sufferer. Dr. Bastwick, had 4,000(. He-
' paraiions allotted him, whose sul1'ering«, he
* submissively cunceiveth, was nothing nigh su
* great, in lormenl, pain, and shame, as your
* Petitioner's. And forasmuch as the now lord
< Coventry, son and heir lo the nforeaaid lord
* Coventry, hat*! walked in his father's vefis, in
' enmity lo ihe laws, liberties, and freedom of
'chenatioo: By beineiDarmsatthe beginning
' of ibe wan aoaiutt the parliament, and made
" his pence with the earl of Essex for a small
'maicer, and hath since deserted tba kingdom,
* living in France piivately, receiving the pro-
* fits ofa vast ettaie which liis father left him :
* And foraimuHi as* his said father (the late
' lord Coveiirry) was the activest man in infring-
* iiig the laws Biid bberties of the natioti ; al-
* though a lawyer and Judge, sitting oa the «u-
* prerae seat of justice; and a person, as is
< groundedly concen ed. who ^ot a great estate
' by corruption, and particularly a man that
* priadpally passed, as chief jadge of ihe court,
' b<ilh the afnresaid sentences againit your i'e-
' titioner i And in regaril the estates of the
* aaid lord Catii'wton, and sir Francis Winde-
*taak, hj sut^eijuant ardcn of bofb houKi'
' upon urgent occasions, are much entangM
' and altered from the condiiion they woe ia
' in 1646, when the lords ordered yunr P«i-
■ tioner 3.000 marks out of them ; and far ibu
■ the estateof James Ingntm cannot be bonl,
' nor at present come by: Yoar Petitioner,
' therefore, most humbly prayetb, that the
' greatest part, if not all your Pctilloners Re-
' panilions, may be fixed upon the said no*
' lord Coventry's estate, to be imratdialciy
' paid your Petitioner; or else that his nttii,
' and the profits of his woods and goods, may W
' seized in the respective counties wheie tktj
' lie, for the satisfying thereof; that your Pw-
■ tioner may no longer run the liaiard of nm
' to him and his, by tedious delays, haring il-
' ready contracted the debts of raanv huadltd
' pounds, occasioned by the chargeable pioje-
' cution hereof. And that if you sliall think lit
'to conjoin any other with him, that it Day be
' principally the judges of the law ; wb(iou|ll
' to have been pilots and. guides nnto the itsl
' of the judges of that court, who were lorthi
' and persons not knowing the law. Aud jam
' Petitioner shall ever pray, &c.
■' Afte
the reading of which, tiiey enlnvi
lus debate of the whole business, and
thereuuiin poised several \'ot:es to be hauh of
an Ordinance, to be d'awn up and repoitfdU)
the house, by l)ie right hon, the lord Csrr,
chairman to the said committee ; vrho actoit!-
ingly reported the Prnceedinga and VoMs b(
the said committee to your Ikiubc, who appior-
ed of the said Votes, and ordered anOrdiDincc
to be presented to the house coDSooaut tiitst-
unco, which was accordingly done by the kid
Carr ; which Ordinance huth been once md
in your house : The copy of which thus fol-
' An Ordinance of the Lords and ConuDOMV-
' sembled in pDrliamenl, for the raiding «f
' 3,000'. out of the real estate of Uie Isle
' I'boinas lord Coventry, late Lord Keeper
* of the Great Seel of England, for and la-
' wards the reparatian and damages of Joka
' Lilburn, gent, which he sustained by viitsr
' and colour of two Sentences given isd
' made against him, in tbe late CourtafSuF-
' Chamber, the i>ne (he ISth Feb. 1637, ll>t
■ other the IStb April, 1636.
' Whereas the cause of John Lflhora jwl-
' concerning two Sentences pronounced agiiM
' him in the litte court of Star-chamber, iM
I of February, 13 Car. regis, and 18tb of April,
' 14 Car. regis, were voted tlie 4tb of Hit
' l(i41, by the house of commons, to be illqsl|
' and aiHintt the liberty of the subject, si
' also blondy, wicked, cruel, baiharuos, "^
' tyrannical, which were iransmitled IrWB tkt
' said house of cummons unto ihe hoate «
' lords ; who thereupon, bv an order or itMtM,
' by ihcm made IStfa of feb. 16 15, adinltri
' and declared the said proci«ding* ofibe w
' ^tar-Chamber, against the said John Litbor^
' lo be ille^l UHl VMtt QDJas^ mm! ^akist A*
hd '
13CS] STATE TRIALS. 13 Chablu I. l637.-^;>«»&il«^&.teNwB«ib. [ISGft
* liberty of the lubject, Rnd Mn^a Cliarta,
* and unSt to coiiiinue upon i^mrd, &ic. And
* by »nalJiar order or decree, made by them
* the said lords the Sth of March J6J5, tbej at-
' eitfied to be pnid unto the laid John Liltiuni
' tbe sum of 9,000/. fur liis repanttiuns; and
*.lhe said bouie of peeri tlien 6xed that sum
'.upon the estates real and personal of Francis
'lord Coyington, sir Fraoci* Windebank, and
'Jaraei Ingrain ", late deputy-warden of the
* Fleet i and afterwards for the present loTying
' thereof, with oJtowance of interest, in case of
' obstnictioDS, while the same should be in
' levying, and of sucti pnrts as should not be
' forthwith levi»d ; the said house of peers did
* cause an ordinance lo be drown up, and pass-
* ed the same in then' bouse, the STtb of April
. 1616, and afterwards traasniitted the sajne to
' the house ofcooimons for their concurrence;
' with whom it yet dependeih. And forasmuch
' as since that tranunlsiiion, all, or the greatest,
' of tlie estates of the said lord Cottiogion, ^id
' sir Francis Windebauk, is since by both
' hoiues disiMmed of to other uses ; and the
* esialeof tbe said James Inj^ram is so small
' and weak, and so entangled with former in-
' cumbrauces, [hat it can afford little or no
' part unio the said John Lilhurn of the Mid
* reparatioui : And ibr that the said late lord
' Coventry was the principal judge, and chief
' actor, in giviug of both the said illegal Sentences
* in the taid court of Siar-Chamber ; nod for
* the barbarous iuAicling of punishnicnls tbere-
' upon. Therefore,aiidfor*atisfactionoftliesaid
' 3,000^ and for the iucreaie of reparatbn unto
' the ssid Jabll Ulburu for his extraordinary
' wrongs, sutTeringi, and losses thereby sustain-
' ed, and the hing time hitherto elapsed without
' any satisfaction ; the lords aiul commons
' assembled in parliament do ordain, and be
' it hereby ordained by tlie said lords and
' commou'i.and by autboritv oribesainBi That
' the said John Lilhurn shnil receive the sum of
' 3,000/. out of all, or any tlie manors, uies-
' * suages, lands, tenements, and hereditaments,
* whereof he, the said laU: Thomas lord Coi-en-
' try, or any other person or persons to or for
' his use, or in trust (br him, was or were Seized
' in fee-simple, or fee-tail, or otherwi^, ut ihe
' time of the said sentences or decrees, or of
' either of them, in tlie said tale court uf Star-
* Cbaiuber, or since nitliin the kingdom of Eng-
' land, or dominion of Wales, any order or or-
' dinance heretofore mode by either or both
* bouses of parliament for the employiuent of
^ the estate of the said late Thomas lord Coven-
* ' But the lord Roberts, the lord Wharton,
< &c. tqld me several times, if their estates had
' not beeo under aequeittration hy oriiinance of
' parltninent, they would never have gone
' nbout to Gx my reparations by ordinance,
' (which they must needs then do, to take off
* the 9e(|ues[nition) hut have issued out a dc-
' cree and extern uiuler the Great Seal, immedi-
< ately lo hate put me in present pnsseuion of
< my 3,000'. wlucb tbej> *^ wm theii right by
try to the contrary hereof, in asy wiw not-
nithstanding. And for the more speedf levy*
ing of the said sum of 3,000f. it i;t further or-
dered anil ordained, that the several and re-
spective sberiHa, of the several and respectiva
counties within England anil Wales, Khereia
any of the said lands, tenements, or heredita-
ments do lie, shall forthwith upon sight, anil
by virtue of this ordinance, cause an inquisi-
tion to be made and taken, by the Oaths of.
13 or mure lawful men, where (lie same landi
do lie, and what the same are and du contain,'
and of the clear yearly value lliereof, over and
above nil charges and reprises : and after such
iuquisitiou so made and taken, the several and '
respective sheriffs shall deliver uuto the said
John Lilhurn true copies iu parchment of the
same inquisitions by them taken, and shall
then alio deliver udio the said John Lilhurn
the said larids, tenements, and bneditaments,
which shall he so comprised or inentiLned in
the said inquisitions, to have and to hold, to
him the said John Lilhurn, and his aisiEnt,
without impeachment ol waste ; and until h*
shall have received nut of the issues and prt>-
fits thereof (to be estimated according to (he
yearly values contained in the said inquisi-
tions) the said sijm of 3,000/. ; together witli
nil reasonable chaises and eipences to be bu»<
tained from hencetorth for olitaining the said
sum of 3,000(. And all and every the said
several qnd respective sheriK, and all other
person and persons whatsoever, that shall aujt
ways actor auibt in obedience to this ordt-
nance, according to the true intent aad mean-
ing thereof, shall be therefore defended anti-
kept bannless, by the authority of both house*
of parhament.'
Bejileased to take further notice chat after
tht foresaid Ordinance was once read, it cams
to a debate in ynuc house for to be read tlie se-
cond time, which was carried iu the negative bj
a majority of voices ; and I cuiinot but appre-
hend tliat there were divers in the house unsii-
liiJied in the ordinance itself, in regard th«
house was divided upon the debate and vote,
which I cannot but apprehend mi^st flow front
one of these two considerations: First, either
because that the whole reparations is lixed upoa
the lord Coventry's estate singly, who had many
co-partners in the sentences, and who also it
may be supposed hath eipiatccl his crime by
his [tenth. Ur else, secondly, because in soma
men's thoughts, some of my late actiong are, or
have been so evil in themselves, that lliey may
seem to them (o over-balance the merits of all
my ancient sutferings.
However, on my presenting my Rensons to
tlie house frir reading it, my Ordinance wns call-
ed for to he read tlie »gi;ond time, which Et-
synge ihe clerk prelended he had laid ready
upon the table before him ; but what betviint
lus knavery, old Henry Vane's, the Speaker's,
and young Montagae s, my Ordinance was
stolen, and could never after he &und : so that
I wRi sent to out of the house to g>:i anolber fair
copy writ over presenily,; which being, long.itt
doing, my &ieii(li wcntRw^, not'eipectuilU
t*ti7] STATE TJXlAtS. IS Ch.L 1637.— Trial t^Lmum,MdWharm. If*. [I3«
«o»lil «ny mare be msdrtled tiih that liny, so
th«t wh«i must of them were i^one, aiy adver-
■niies took the ii(]raiit:i|e to cull lur j[, niid in
K'thin house read it the second time, and upon
debate threw il oPt of doiirs; »tid nt present to
■top my mouth, voted nie 300/. rrady money
gA they pretended) out oF air Ctinrle) KcoiisaeS
ompotition, to enable me Ibr present subiiit-
cnce.Dnd to IbUow my basinciii; aiidulao made
ihis further Ordtr:
' Die Martis, Sept, 5, 1648. Ordered by the
' commons assembled in pxrllanient, that the
' sum orSjOOUi. be alioived and paid unio iieut.
' col. John Lilbum, for repiinition of hi« da-
' mages sustained by colour of the Sentences
' given H|;ainst him in the late court of Star-
* Cbunber, ithere lord Carr had the cbnir,nith
' the additiiin of ?ir John Danvers, and colonel
' Ri|i;by, to coteider of, and preteilt to lliis lionse
'.Eui Urdiiiance for settling of lands to him and
' his beira, to the value of 3,000f. nC 12 years
* purchase.outof theeatotet of nevr deliuqucDt*
* 10 tbe insurrection), not yei s^uestered.
' 11, Elsyboe, Cw. Pot/, Cnm. Dom.'
Of wkich when I fully understooil, I »/a>>
trdiibled, but knevr iiot how lo help myself; and
having already met with so raany diffictUties,
and received so many baffles as I had done, 1
thonnhtit was better (beiu>[ almost wearied out
with Btrufiglinic) to take half a lonf, ihim to go
■way without any bread at nil. Su afitr many
petitions and letters to the sequestrators, ficc.
"■ ' :e caused an Ordinance to be drjiwn
Bui when my Onlinance came to the lords,
they disabled me to cut down any more limber
trees than what were already felled, which I
judged tiitor for me to content myself ivith,thnu
to struggle any longer bi get it pass, as the iinuse
of commons nad sent it up. So the lords in
two or three days dispatclicd it, and sent it
down tu tbe house of commons for tlieir concur-
rence, according to ihose ubridgmenis Iliey had
made in it : and taking my opportunity to speak
to tbose in Chebuuui of commons J bud interest
in, I intreated them to dispute it no more, but
pass it as the lords had gi^lded it; and accord-
inely iliey did ; the Copy of which thus follow-
eth:
' Die Joris, 31 Dec. 1648. An Ordin
' of the lords and commons assembled in _
' liamenC, fur raising of 3,000/. out of the' se-
' queatered estates and compositions of sit
' Hen:- Uibb, knight; and sir Henry Belling-
' ham, knight and baronet; and Thomas Bones,
' esq., lying and being within tin county of
* DiiHinni; to be paid unto Iieut. coi. JohnLil-
' burn, by the Coniimttce of Sequestrations ol
' the said county, for and towards the Repara-
' tion and Damages of the said John Lilburn,
' which he sustained by virtue and colour of two
'unjust Sentences, or Decrees, given and
' made against bim in the late Couitof Star-
' Cbaoiber, the one the ISth Feb. 163T, tbe
* other the 18th April, 1G38.
' Whereas tbe catise of Iieut. col. John ZaI-
* bum, coijcernine two Sentences pronounced
' ^intt him in t& Ute comt of Star-CiuuDberf
tlie 1.1th Feb. decino 13 Car. resis, ind
the ISrli April, U Car. regis, (which «ei«
voted the 4rh of May, 1M1, by tbe booK of
commons, tu be illegal, and a^inst tbe libenj
of the subject, and also bloody, wicked, cror^
barbarous and tyranuind) were tranaiailted
from the said house of commons snto ibi
house of lords; in which the hooK of peers
concurred in judcnieni ; and tbe 13th Feb.
' l<i45, dcdared the said pineeedingi of tM
sard Star-Chum ber, against ttie said Jobs
' Lilburn, to be illeg<tl, most unjusr, and a^nt
' the lilieriy of the subject, and law ofthennd,
'and Magna Charta, and unlit to anninac
' upon record, jitc. 'I'be said hirdi and coat*
' mous taking into their serious
' the CKlmordinary sufferings :
' Cvranny, that by colour of ibe said uajul
' decrees were inflicted upon the said Iieut. coL
> Ji'hii Lilburn ; and the loni^ time hilbnW
' elapsed without any satisfection, du conceitt
' it most just, eqnituble and rcasooable, lo re-
' p^r him in some aiiisiJerable manner: asif
' theref'ire, in purauaace of two ordcts of the
' houi-e of coiiitbous, one of the S*I Am.
' 1648, and the other of the 5Ui Sept. 16^3,
' have urduined; and be it hereby ordamed bj;
' the hirds and commons a<Kriibled in psr-
' linmeiit, aud by the authority of the same;
' TliaC the said John Dlliuni shall have snil
* receive ihe som of S,000'. tu be paid ualo
' him or his assigns, by the comminre nf se-
' questmiions for tbe county of Durliam,oot of
' the first profits of the sequestered rstsld,
' both lands and goods of sir lleni^ Cibt^
' knt. ; sir Heiuy Beltingham, knight and ba-
' ronet ; and Thomas Bowes, ejq. lyii^ and
' being in the county of Durham, having lU
' been active inahe liie Northern insuntttiaai,
■ and aiding and assisting to the most wicked
' invasion of duke Hamilton. And tbe wid
* committee are hereby authonied to fdl ill
' such woods (eicept tirabei^treca now staad-
' ing) as may conveniently be spared, and now
< Btaiidingupoii the said lands (qralreadyirlttd)^
' or any of tliem. And if the said sir Hnuj
■ Gihb, sir Henry Belbngham, and Tbomt
' Bowes, or any of them shall compoaad hr
' their estate, so much of the said 3,0001. as
' then shall remain unsatisfied shall be paid
' imto the said John Lilburn, or his assigneOi
■ out of their, or the first of their compositioiL
< And this ordinance or copy thereof, attested
' undertbehandnr hands of the clerk, ordcfti,
' of one or both houses of paKiameni, shall ba
■ a sufficient warrant to tlie said commitm of
' sequestrations in the Sdid county of DarhuB
■ to pay Ihe said 3,000f. as is belbre eiproscd,
■ unto the said John LQbam or his asBgu;
' and likewise to indemnify and save banDM,
' all and every person or persons, that thall
' any way act in the perfbrmancc of tbe ti«
' intent and meaning of this Ordinance.
* JoH. Bbowh, CUr. FarlkmMltr.
• II. Eltsihck Ckr. Part.Dem.Cm.'
However, Iieut. col. Ijlbnrac, after cmt
trouble and much eipnse, got but littU M t^
money grdered bin..
1869-] STATE TRIALS, UCiaual. l9Si.~1Hil <f nmat narriKm, acri. [1370
149. The Trial of Thomas Harrisok, Clerk,* at the King's-Bench,
for a Misdemeanor in speaking reflecting Words of Judge
Hutton: 14 Charles I. a. d. 1638. [Cro. Car. 503. Hutt.
131. 3 Rushw. Appendix, 268. Tanners MSS. in Bib. Bod.]
' Before ihis time, thu n to UT, opoQ
• lliundk; oeit after the Octaves ortlw Uolj
'Trinity in the laid teem, before our sovere^n
< lord the kmg at Westminiter, uuon the oatb
' or tweir* Juron, it is preaented, That whereas
• tbe court of our lord the king of Coinmon
' Plena is, aud from the time t(f the contrarj of
< ivhicti there is no memorj of man, haih been
' tai BDtient court nf record of our mid now
• lord ihe Ling anil hii progenitors nnd nnces-
' tors, kings and queens of England, fur tbe ad-
' miuisi ration of justice to the subjects of this
• kini;don) of EngTund, and others in Common
• Pleas, moved and arisiog through all the
' kiltEdum of England: And ithereas it is
/ agamst the cro*D and dignity of the king's
• majeslj, and ngsiost die Ian and custom nf
■ Ibis kingdom of England, for »ay person or
• persons lo disturb tbe court aforesaid, or anj
' Justices of the said court, the said court
' being open, and the Judges of the said couit
< being present, and judicially silting : And
• whereas Richard HutUn knislit is, and for
' divers yean now last pttst hatn been, and jet
' is one of the Justices of our said now lord the
' king of this court : nBverthele«s one Thomas
• HarriioD ofCreeke in the county of North-
■ ampion, clerk, not having God before his
' eyes, hot by tbe inst^ation of the Devil
' moved tind Mduced, mulicinusty nith himself
' ima^ning, and in his miod compassing by
• »hat means he' might, the Aforesaid Richard
' Hutton knight, there and then, and yet being
< one of the Justices of our said now lord tbe
• king of ttie Coinmnu Fleas aforesaid, many
' ways to detitme and scandalize, and contriv-
' ing and maliciously intending, as much as was
• in )iis power, to bnng ibe said Ricbard Hutton
• into scandal, ignominy, contempt, and vile
< cbamcter, and the said Kichard Hutton «f his
• life and goods and ch^ittels, lands nod tene-
< meuts, wickedly and maliciously to deprive ;
• M also the displeasure and indignation of our
<said nowlord the kingagainst the said Richanl
■ Hutton to stir up and provoke, and using his
' utmost endeavour to make the said Ricbard
< Hutton be held and esteemed a Traitor as
' well by our said lord Ihe king and tbe peers
' of this kingdom of England, as by ail ihetoyal
' subjects of our said lord the king . And tlte
■ aforesaid com! of our said now lord the king
• of Common Pleas, and the justices ofonr said
' lord (he king of the said court in the taid
' coort being present, nnd judicially sitting to
' disturb, and the administration of Justice ia
* the said court to hinder, the 4th din of May,
' in the 14th year of the reign of our lord
' Charles by the Grace of Gorf, of England,
' Scotland, France, and Ireland, king, defender
■ of the faith, &c. at the city of Weatniinsterin
■ the county of Middx', vit. in the ^at ball of
' Pleas there, the court of our said lord the
' king, that is lo «ay, the court of our said lord
' the king before him the king, the court of
' Chancery, and the court of our said lord ttte
■ king of Common Pleas, in the Hroresaii! great
' Hall of Pleas aforesaid open, and the J usiicct
' of our said lord the king in tlie court aforesaid
' then there present, and judicially aiitin^, ia
' assiduously attending and hearini; the matter*
' and causes of our said lord the kin^, his pea-
' pie and kingdom of England, and in miuis-
' lering- the laws of tbe kingdom afoiesuid to
' tbe subjects of nur said lord the king; the
' aforesaid Thomus Harrison to the bar of the
' aforesaid court of oar said lord the king of
' the Cnmnion Fleas, then and tliere violently
' and by force and arms, &c. came, the said
' court of Common Pleas then and there in the
' aforesaid great Uall being open as aforestfd,
' and the a^resaid Richard Ilulton knight, and
' the other Justices of our taid luid the king of
'thecoiirtofCoromon Pleas nforesaid in that
' court, then there as aforesaid being present,
' andjndiciallj sitting ; and the afnreiaid Hio-
' ma* Harrison, then and there out of his mere
' malice, evil mind, and wicked intention, in
' the presence and hearing of the aforesaid jus-
' tices of the aforesaid court of Common Pleas,
' and dirers Serjeants at law, and many vene-
' rable men, and other faitliful subjects of our
' said now lord tbe king, falsely, wickedly, and
* maliciou'ily accused the aforesaid. Richard '
' Hutton knight, of high treason, and then cmd
' there falsriy, wiskedly, and maliciously, these
' scandalous, venomous, defamatory English
' words, openly, publicly, and with n loud voice
' said, published and spoke, vix. ' I (him the
' 'said Thomas Hnmson meaning) do accuse
' ' Mr. Jostice Hutton (tbe aforesaid Richard
' 'Hutton knight, one of thejusticesof our said
' ' lord the king of the Common Pleiu, menning)
' ' of high treason :' to the great hurt and dtru-
' gation of the cronn and drgtiity of uur said
* Forri the king, and of his royal powerj and the
' manifest contempt and acandnl of hi! court*
'aforesaid, and of the justice and laws of our '
' said lord tbe king, his kingdom aforesaid, end
' tbe court of Common Pleas aforesaid, and
' tbe justices of our said lord the king, and
' adminittratioo of justice in the said court, to
* the most evil example of all other oSetiderf
' hnmfUr in tbe like e»te, and to the non .
1371] STATE TRIALS, l*Ca.L l638^7Wa/q/'T&MuuHmtmi, atrt,fiir [13T3
nson, a df rk) being miiTcd with nudict ipiiut
the person ot Mr. Justice Hutcon, RndinteDd-
iug TO brio; Mr. Justice tlutton into ibe kii|'i
bull displeasure, and to hazard the Itniog of Im
lileand his eatate, and C)ie roneitare of bit
goods, and tu disturb the peace of the king,
aud the court ofjustice sitting, did falwlj ud
maliciousl]' the4th of Ma; last in Wesnaimta-
hall in thecitj o^We^t^liIlste^, the court beio(
sitting, this coort and the court of Cbasecij,
and ihc court pF Common Pleas, tbii diftD-
daot, boldly, tuidaciuoaly, and maliriouskj, did
tush to tlie bar oftlieMid court uf CoviDon
Pleas, Mr. Justice HuttoD and Mr. JuUice
Crawley then and there sitiing, there aoeaii-
ing til tbe service of the said court, there with a
loud voice ipaka to Ht. Justice Uuttoa Mtin{
as ejudge ; ' I do accuse Mr. Justice tlutuu
' of high treason.' This offence being com-
mitted in this manuer and in tlita place, and
Kith such a buldnese, la laid to be of a high
nature, and to the contempt oFtlie crown, sad
dignitj of all the courts of justice, where tbt
king is wltoll^ interested. Whether this oflcnce
maybe punished, that is the force and iolnt
of this Indictment. My lords, to tbia the De-
fendant bath pleaded Not Gnilty^ we that bf
of the king's counsel shall make it appear, that
' grierous scandal, iafiiiD;, disgrace, and final
* deAtruciioii of the aforesaid itichard Iluttoa
' knight, and against the peace of our said nan
* lord the king, his crnwn and dignity, Sic.'*
To this the said Thomas HsrrijOQ hadi
pleaded Not Guilty, and haib put liiuistlf upon
the coufliry, and the king's Altoniej of this
coun likewise. You are now to eni]uire whe-
IJierlbeuudThrimu llariison be guilty of this
crtine,<¥eaorNo.
Mr. Serjeant Eeatk. May it please your
Iwdihip, and ynii gentlemen of tie jury do
hear, that by reading of the record, that there
ii an Indictment preferred on the belialf of the
king agutust Tlutniaa Uarriaon who is uow at
ibe b:ir, and that it is for a notable and inso-
lent Coutempi in ibis hall against Justice Huitoa
and the laws of this kiugiloni. The indict'
■tent sets it out tliui : That the court of Cum-
moo Pleas is an aucient court, and that it is
against the crown and dignity of the king, and
the Courts of Justice, that wbentbe said cnurib
•ere sitiiiig, they or anjr of the ministers of the
Mid court shall be disturbed. It is further
taid, that Mr. Justice Uuttoo is, nod for many
jears last put hath been one of the Judget of
ibe Court of Common Pleas ; and that the
Defendant who is now al the bar (Mr, Har-
• ITie original Uccord is as fulluws :
Bex mtmi IIikeimh/ot a Mudaiieanour.
Triti' U Car' l.B. R.
• Middi' u.
' Alias, scilicet die Jovis proi' post ociab'
sanctc Trin' isto toil' lermino, coram domino
rege apod WeiiLm', per sBcrailient xii. jur*
cKtiiit pnesentBt', quod cum cur' domini regis
de commiini banco est, et a tempore ciijus
coutrar' memorin huminum oon eiistit, fuil.
aniiqua cur" de tecoido dicti domini regis
uunc, et progenitor' et antecessor' suor' reg'
ei rob^iilnr' Angliz, pro administraliune jus-
ticia! subdit* hujus regni Ani^liEe, et uliis in
commuuibus pl'iiit per tnt' regnum Augliie
pned' motis et energentibua. Cumque eat
contra coron' et dignitat' regie mEyesiatii,
necuuD contra legem et coniuetudinem hujus
regni Angtie, pro aliqua persona, vel aliqui-
bui per^ui..,|Cur'prnd , ten aliquos justiciarloa
^tisd' cur", ead' cur' nperta existen', et jus-
ticiar' cm' illius in cur" ill' pneseutibns, ct
judicialiler !«den<ibus, disturbare. Cumq'
Ric' Hntton miles esc, et per diversos annus
jam ult' elap<i(iB fult. et adhitc est, unus jus-
ticiar' diet' domini rrKis nunc prxd' cur' SUES ;
quidam tampii Thomas Harrison de Creek in
cum' .Northampton clericus, Deum pre oculis
suis non habens, sed insiicadone diabolica
mut' el sediici', necum iiiautiose imaunans,
ntqueiii animn coinpaMans.qiiibusmDiTB pos-
sit pred' Ricarduio Hiittun milit', et adtunc
et aithuc uii' justic' domini regis nunc dr
commnni baucii prsed' existen', multipliciter
delamare i-l •candaliznre, marbinansque el
malitiote inti-udens, quantum io ipso fait,
ipfum Uicanlum Huttoa in Kandaliun, igno-
' miniam, contempt', et vilipend' indnccre, if-
' sumq' tticaidum llutton de vita sua, ac d(
' bonis et catallis, terris, et cenementis suit
' praviter et malitiosc deprivare, necnon ad liii-
' pUcentian et indignation em diet' domini regis
' none erga prxfat' Ricard' Hutton incitand'rt
' provocand , ac ipsum Ricardum Hulton [«o
' prodilore tain apud diet' dominuai regem, (t
' magnates huj us regni ADgh~s,quaiii apud oia-
' nes ligeos suoditoi ejusd'domiuir^isbabenK
' existimari satagens, ac ad prsed' cur', dici'do-
' mini nunc de communi banco, et juitidar"
' diet' domini regis, ejusd' cur,' in GUI' ill' prx-
' sent', existent' et judicialit' sedeutihus,dit^lur-
' band', et admin istrationem justitite ia cuH iU*
■ impediend' ouarto die Maii, anno regni domiai
■ nostri Caroli, Dei gratia Anglif, Scaliz,
' Franc', et Ilibem' regis, fidei defensores, &c
' decimo quarto, apud civitut' \Ve«tm' in com
'Midd',TiE. inmagnaaulBpl'itoru[nihideni,ciu'
* ipsius domini reels coram ipso r(£ecur'c*i>tel-
' lar',etpra:d'cur communi banco in przd'maf-
' na aulapl'itorum przd' apert', acjustic'ejiua
'' domiai regis in cur' prcd' tunc ^idem pn-
■ sendbus, et judicialiter sedenlibus, materia)
' et causal domini regii, populi sui, ac regni Mi
■ An^ias auidue attendeut' et audient', legesq*
' regni prsd^ subdit' ipsius dsmini regis mwis-
' trsnt', prsd' TboiDas Harrison ud bainia
' pra:d' cut' dicti domini regis dc commani haa-
' CO, adrunc et ibidem viol«nter, vi et aiiDis,^^
' accessit pried' cur' da communi Itauco adtuac
' et ibidem in piied' magna nula, ui prcleiiur,
' aperta exislcn', ac Kicardo Hutton milit',(*
■ ali IS justiciar' dicti domini ngn cur* de am-
' muDi baiiro pred', in cui' ilia tunc ibid^
' (at urelertur) prcsriiiibu!, et judicialit' *^
* deatibus, et pned' Thomat BairiiDa adtiaf.
tht* D«r«ndniit dul do thii, and in tbit mumcr
na it is art forth.
Mr. Atlornt^. (Sir John Biuiks.) I dnire
thM [bis ExBiiiinKtioo may be rend ; but let
liim see It, whether it be hb baud, jea or no. '
Hatruon. It is mj bund.
" The Eianiinatioa of Tbomas Ilarriaonj of
CreeLe, in tbeuounty of NortbBinpton,clerl: ;
being examined before my lord chief justice
Bfain|)3tou, saith, tint it is true, ihut wbereas
Mr. Justice Button and Mr. Justice Cranley
silting ia the court of Common Pleas, he caine
(o the ^ar, and there did poblidy charge Mr.
1373] STATETMALS, HCh.L 1638 — VForit tpoken i^itM Jjidge Hiaton. [137i
!.Jlutlon with Hi^-Treawn. He charged
hioi first with denying the king's Supremacy,
next nilh moTing the people to Sedition ; and
these betbepointi on which he chatted liimttiih
Hij^h-Treaaon, bs aforesaid. Farther, he wtn
asked why he charged him with the first, and
how he ooth deny the king's Supremacy : ile
answer?. For that by common fiune- upon Sa-
turday last in the Exchequer-Chamber he did
dehver his opinion, that toe king had no lawfbl
power to levy the Ship-Money. Bnng asked
whether he heard the Argument; he answered.
He heard it not, but receired it from the com-
mon report o( others. Being further asked
why he charged bim with iiining up the people
to Sedition ; he answered, That was because
by the report of divers near to the place wlier*
this Examinant dwells, the people go on more
and more in their stubbornness, refosiDg (he
paying of Ship-Money ; ibe which is contrary
to the opinion of all ibe OrtbodoK divines of
ibis kingdom ; and in that Mr. Justice Huilon
riding that circuit, hath given the people such
an encouragement to their disobedience. Be-
ing farther asked, whether any other person did
know of this his intent; he answEred, that
there were two other persons with him, bat
they did not know any thing of his iatenlions,
till they heard it spoken at the bar. Being
asked why he made choice of this poblic way ;
the reason he saith was, because he delivered
his opinion ijubliclj, therelbre he thought tbM
to be the best way ; and if it had been done in
a private way, he thought it fit to acquaint
bim with it in a private way.
Thomas Ha KHtsoii."
Mr. Allortity. May it pleise your lordship,
and you of the jnry, the prisoner at ibe bar,
Mr. Harrison, stands icidicted. of a very tool
and horrible offence, of a forged accusaiion
framed and contrived out of bis own brain. It
should seem it was out of some rotten ami
inveterate malice, a thing for which there ia no
cubur nor appearance of truth, and he con-
feueth it was upon the ground of common lam<.
Now yoo know what commoa tame is, «
mendax ; lie charged this reverend jud)>e, ■•
you have heard, that he did deny ihe kiiif"*
SupremaCT ; and the reau>n was, because
he heard by common fnme, tliat the Judge had
delivered his opinion, thfit the kin{( had no
power to levy Ship-Money. Secondly, becaaw
be slirreth up the king's nibjects to Sedition;
and hepveth ttiat for a reason, in that the
people of Northampton do go on in llie denkl
of the payment of Ship-Money.
My lord, it is a heavy thing tn ai
* et ibidem, ex suameramalitia^malo animo, et
* malevola inteatione, in pr«ientia et audit'
< ptzfat* justiciar' pned' cur' de communi ban-
< CO, ac diversorum servien' ad legem, multor'
■ viror' veiierabilium, et alior' dicti domini regis
< fidelium subditor', falso, nequit', et maJitiose
' prafat' Ricerdum Hutton milit' de alta pro-
' ditione accusDvit, et adiunc et ibidem ftilso,
'nequit*, etmalitiose hec scandalosa, venenosa,
' denmatori Anglicana verba, pnhun, publice,
* et alta voce dixit, ■ I (insum przfal' Thomam
' ' Harrison itinueiido) do accuse Mr. Justice
' ' Button (prgefHt' Ricardum Hutton milit',
' ' un' justiciar' dicti domitii regis de communi
' ' banco prasd' innuendo) of High Treason,' in
* dicti tlomini regis nunc, coron', dignitat', et
' regis potestaiis sua; la^ionem et deroga-
' tionem, ei cur' sux prjed' contempt', et scao-
' dalum manifestum jurisque, et legum ipsius
' dumiiii regis regni sui prsed', ac cur' de com-
* rouni banco prsd', et justiciar' dicti doniiui
' regis, cur' illius, et administration' jastiti« in
' ead' cur'jin nequissimum exemplum omnium
< aliorum malefBctoruni tali casu delinquent', et
< ad gravissimuui scandalum, infamiam, dede-
' cus, et final' destrucCionem pr«d' Ricardi Hut-
' ton milit', et contra pacem dicti domini regit
' aunc, coronain, et di«;nitntet suas, &c. Cum
■ per qaod precept' fuit vie', quod non omitlat
' occ. quin venire lac' enm ad respondend', &c.
' Cum et modo, scilicet die Veneris ptox' post
' octabas sanctEB Tnn' iito cod' lermino, coram
* domino rege apud Westm' ven' praitd' Thomas
* Harrisqu clericus, cuiitod' Henrici Hopkins
' ann'.guardian'prisona; dicti regis de la Fleete,
< virtute hrevis dicii re^is de hahend' corpus ad
* subjic', &c. ei ioile direct', ad barr' hie docl'
< in propria persona sua, qui comroitt' prsfat'
' marr', &c. Et statu' pnemissis eo allouuunt'
' qualiter se inde arquielari, dicit, quod ipse
* noa est inde culpabil', et de hoc ponil se super
< pairiam. Et Johannes Keeling ar', cleric'
' coronas, et atiuroHt' domini regis in cur* ipsius
' regis, coram ipso reice, qui pro end' domino
' rege mi hac parte sequitur. similiter, &c. Jo'
*Ten' inde jur coram duomo rege apud We^tm'
' die Luns proi' post quinctenam s^mctie Trin',
' et quinBfC, &C. adrecogn'.&c. quia lam, &c.
< Idem dies dat' eat tam prtetat' Jubannt Ktel-
' ing, qoi sequitur, /ic, quam pred' Thoma'
* Harrigun clerico, sub cusiod' prsed' marr* in-
* teiini toBuoiuo m1*o cUKodieiid*, ^uousq',
'&c'
My lord, it is a heavy thing tn accuse anj
man ofTreasnu, whereby he shall forfeit hit
tandi and goods, and lose his life : and surely
by the old law, lhi« talse Accuser should un-
dergo the same |iuiiishiiient a* he should, ihat
in accused, if found guilty.
My lord, <he place of a Judge ii a place of
great hnnour and trust: of Honour, tor they
be reckoned in liie nid sialuies among th«
mn^HuJuri-^Qi, 3 Ric. 3, &c. And these peo-
ple (hat bv the ftuthvn and publitherp of ih»t
1379] CTATE TRIALS, 14Cb.L 1S3S^
bate Sc«ndal>, tbe; are reckoned to be the
*awen of dUcoid, aiid sre sabTcrtin of the
peace of the commonweiiith. Aadsurd^ifMr.
Uarriujii bail looked npon lhe*e Slitutn, he
would litkte been better adilind: OfTniu, for
be is triuted HJtb the odoiioiitrBLion or-equkl
justice between ihe tdng md his subjecit, uid
the lives, fartunesj and estates of men. Tbei«-
Ibre beiug a place of to great hniiour and trust,
the tcanaiil is tbe greater; and offences and
crious against them have been punished not
with ordioBiy punishmeDt.
95 Ed. 3, 1 pr. Xi is declared to be TreasoD
to kill ■ Judge is ttecutiou or his office. Our
books any, Tbat if one draw n weapmi upon a
Judiie sitting in judicature, though he strike
him not, he shall be imprisoned during life, and
forfeit his gonds and lauds, and toiC his right
hwid. — Though the ofTeuce be not done to tlie
Judge, ^cE being in the judges presence (the
courts bittinii), as if one strike a juror, or onj
other person in WeWoiinster-hall, sitting in tlie
«ourCs, it both been punished with the loss of
liuid, gwid*, and lands during life ; this ap-
^tireth, 19 Ed. 3. Judgment, 174, » £d. 3,
13 Mich. 0 Ed. 3. Coram rege, rot. Si. Stam-
ibrd's Pleas of the Crown, SB.
llio Offence of Mr. Harrison is not for accus-
ing judge HultOD, or sn; other, of Trenson, fur
God forbid but that should lie lawful where
ibcre 14 just cause; but to do it without an}' co-
lour of ground, and to foige a false nccuMtion
out of his own brain, and to act in such an inso-
knt and mad wny against a reverend judge,
titling in the seat of judgment, this ii the
wffeoce.
37 Hen. 6, 3. If nne call another TVaitor, nn
appeal lieth before (he constable and mnnlial ;
Biid if the appellant be kiHed in baltie, it is
jug:iliable.
30 lib. Ass. OnecallerijustlceSenton Traitor,
and ansn'ered well in damnger, as appcareth
mori! atlapge in the Record than in the Priuted
Book.
Micb. 5 Car. in Banco Regis, Nich. Jeaffes
vasindicteil and fined in the King'a-Bench, for
writing a Petition, wherein he taid the lord chief
justice CuLe •as a Trnitor.
Treasons are declared b]> ihe statute £5 Ed.
3, and thni this gentleman maj expound a
TeiE, he cannot expound Statutes, for this is
proper for the jwlges of tlie realm. He is not
to judge whuintreasan, and what not; ' Trac-
' tent fabrilia fabri/ let him keep himseir with-
in the coinpawof hisown prnfeition.
This OSirnce is ' contra Coconam et Digui-
' tacem,' and the scandals agaiust the king's
Judges and Ministers trench upon the king bitn-
te\f; and therefore his royal majesty, detesting
this odious and foul fact m the prisbner ai tlie
bar, bath commanded ui his counsel to gire
ETideiice, The person of the party accused is
.1»olqr71miuuHamtm,aeTk.f» [1376
best known to your lordships to be a mast
irave, honest, learned, and rerereud Jot^e, and
presume, free from any diought of TreaaoD.
Mich' 33. 34 Ed. 1. In this coart, rM. T5,
there was Roger de H»i<hain ffrn* Judgment
against one De Bruce in Die Tin In jiii i riiaai
her. This De Bruce was of a oobtc family :
He asked this R<»er, whether he wauU aniw
tht Judgment, and he told hiio Yes. How,
laysDe Bruce, thou hast thy will, which oflmg
time tbou hast sought: The Judge asked faim
what was that? He said, My shame and Iom,
and this I will think on. For this offeoce, in a
kind of implicit way taxing the Judge of injiia-
tice, he wag indicted, and contessed the Indict-
ment, OS Mr. UanifoD doth: The judgment
was. That he sliQuld be comaiitted, and there to
remain during the king's pleasure, besides a
great tine. Tlie Becord saith, ' Et quia ucot
* honor, et reverentii qui ministris domini reeii
' rationc officii sui faciuntur, ipsi real attribu-
' untur, sic dedecus et contempcu^ nunislrissuis
' fact eidem domino regi inferuntur, considcra-
' turn est quod pnedictns Willielmus de Bmce
' districtud in corpora, CRjiite nudo, toga depo-
' sila eat i Banco domini regis ubi placita te~
' nentur in Aula Weitmonattcrii per medium
' Aulx predict* cum curia plena fiierit, tnque
' ad Scac. ubi deliqultet ibidem veniam petala
' prxfato Rogero, &c. Et postca committsioi-
' Turn Ij}nilon. ibidem moretur ad r
• recis.
My Lordf, This Offence, which was offered
to the person of a moit rererend, learned, and
honest Jurlge, by the rules of our Booka, b a
scandal ilone to the king himself, if there be no
colour n<ir groun<l why he should lake upon him
to make thii bold and tmpudcat assertion. I
doubt not but you will mamt.-iin the honour of
a Judge, and jiunish this Delii.quent according
to bis dements, ilis offence contained in die
Indictment, is confessed in his Examination,
and by himself ore Itnus; therefore yon of the
Jury need not de^jart from the bar.
Whereupon the Jury immediately pT« in a
Verdict, that he was guilty of the Indictnieiit.
Mr. AHornry Ccnerat. Now, my lord, I
Upon which the Court pronounced the fol-
lowing Sentence : ' That he should pay a PiiM
' tn the Ling of SOOOf. and be imprisoned dm^
' ing the king's pleasure, and should hare a
* Paper upon his head, shewing his Offence,
' and go thercwilh to all the courts of West-
' minster, and make his Snhmission in every
' court in Westminster-Hall, and in the Ridie-
' qner :' For it is an office to every court.
Afterwards Justice Hutlon hronght an actsMi
for thcae Wotd* against HarriMO, in wbicb he
recovered lOfiOOl. Damaget.
itizecoy Google
I377J STATE TRIMS, UCs.I. iGSS—fbrlPerda^iokaiagaiMtJ^JgeUmon. [1378
Another Account of the above -raiAhJrom tanner's mss. in the
BODLEIAN LIBRAUY.
the Judj^e, he ansnered, bccanic the Juil^ had
The fblloning Account of the aboie Case, iii
tlie hand-nrriiiuic of Arehbisliop Saniroli, a
taken Tram a volume among Tauner's MSS.
in the Bodleian Ubrury at Oxrord.
Proci
THJMlsHAItllll*
elNFORUATION 1GAIK3T
(,Cl.(
E Kim
Bemcii Bab. -iJuiiii, 1638.
Upon the Indictment it was declared, that
the CoinmOii-Pleas is an uniieiit court, that it
it against the crown' and laws of tIJs kingdom
to disturb the court, the Judges judicialP^ sit*
ing ; that, notwithstanding, Thomas Harriaon,
clerk, did wickedlji and maticJouslT defaiue sir
UicbardHuitoii, knight, one «f the Judges of
that Court, and then judlcintlv sitting [here,
seeking to deprive him of hii hie, goods, and
chattels, and to |>rocuTe the liigli displeasure
of the king, and cause him to he acciunted
Traitor both by our sovereign lord the king, hi^
peers, and all bis subjects. That upon the 4ih
day of May, anno U R. the said Thuiuns Fiar-
risou did hy force and arms violently rush to
the bar of the s.-iid court nf Common Pleas,
and there accused the said sir Richard Hutton
of Higli-Treisoo, openly, publicly, and with a
high v<iiee pronouncing these ivordt: "I do
« accusH Mr. Justice Hutton of High-Treason ;"
to die mnnir«st scandal uf all the courts ufjot-
tice, and to the grievons scandal and damage
of the said sir Richard Hutton.
Mr. Attomfv deotareif, thai Mr, Harrison
had commiued a noluble nnd insolent con-
tempt, to the disturbance or the court of Com-
mon-Pleas, an antient and a high court, fur the
administration of justice between subject and
subject, with a wicked and malicious intent to
bring Mr. Justice Hutton into the king's higii
displeasure, and into danger of his lile and es-
tates, an offence Of a high nature against the
%rown, and against the dignity of oil courts of
His Examination was here read, uherein he
did confess the vcaiit. The points of (reason
wherewith he did charge Justice Hutton, nere
two : 1, For denying the King's Suprcniacy.
3. For aedacing the king's sutgects to Sedilion.
The ground of his first Charg;e was, t'mt he had
heard by common fame, that Mr. Justice Hiit-
'ton did Bi a Judge deliver his opinion, that the
king eoiild not lawfully levy the Ship-Money.
The ground of his second Charge was, tliiit by
report near his dwelling, and upon his own
Lnowledie the people of the county of Nonh-
(impton do deny to pay the Ship-Money, be-
ing moved thereunto by some treasonable
words, which Judge Hutton did deliver in his
Charge at the Assizes there against the lawful
levying thereof, which is contrary to the orthn-
dox opinion of all the Inyal and well-learned
preachers of this kingdom. Being asked by
(he Lord Chief Justice at hiseiatnination, why
be mads choici of lo public a, place to charge
■ Tlifc IH.
.lublic
Mr. Oulicilor inid the lords, that Mr. Harri-
son bein^ demanded in prison, why be look no
other ininislers wiih him, when lie spoke the
words, lie boattingly, replied, he did it, Uiat
they might take an exanlple of couragei
Mr. Alliirnry infornieil the court, that Mr.
Harrison had loi^d a most wicked and' mali-
cious slander against Mr. Justice Hutton,'^
wherein was neiuicr culour, nor evidence.
That b; the old law, Alse accusers were to suf-
fer the same punishment that the party accus-
ed should h^ve sujfered, if he had been found
guilt)'; so hateful was this uScnce to our
torelathera. But Mr, Harrison's uifence was
much aggravated, if we consider the pervin
against wlmm it was committed, [he high placo
of honour and trust wherein he is, his raajesty
having given him the tru>t uf life and ininnber,
of the persons ^nd estates, of liis subjects.
Therefore a scamlol against a person in such
high honour and trust must needs c)e>er\'e a
moit exemplary punishment ; and tbcu to do
it ill so barbarous and uncivil a wav. Bui Mr.
Harrison was much out of his traJe to meddle
with the laws uf the kingdom, ■ Tractenc fa-
' biilin fubri,* he may expound tbe scripture,
but the common law hath given h .i no power
to expound statutes, and acts of^ parliament-
Ibis olTence doth concern the king himself.
For thatscandals cast upon tlie kiug's ministers
are cast upon the kings justice. I iliull now
iinly desire your lordships to tiold in mind, that
this scandal was cast Ufun a most revereiid and
most learned, most honest and sage judge, and
accordingly give your censures.
Mr, Harriion apAe thus in his own defence.
The reason why 1 pleaded Not Giiil'y, was not
because I ineint lo deny the speaking of iha
words, bill because no man can be guilty, that
goeth about to defend tfie kin;!. I confess ibaC
Judges are to be honoured and revered as sa-
cred persons, but this is to be granted only so
long as they bold themselves within the tenor
of judges. Tliej are tlien to be qccpuntrd but
as other subjects. Indeed, I do not understand
the common laws, tior do I go abont to ex-
pound tham ; ihtreforc, thechargeof interpre-
tntioD is laid a li'tle too deeply. Tbe oath of
Supremacy I have divers limes taken, nod find
mvself bound to raatiitnin it. Aadnherea'ny
of the king's subjects have laboured to over-
throw his royalty and supremacy, it is high
time for any loyal sutijfct lo strike in, and to
appeal the offender. Our usual phrase for the
king's S^premaoj is iu ail cases over all per-
sonal, and ihis is a case of Slup-Money.
Mr. Aliamry. We shall not need to learn
of von what tbe kipg's Supremacy is.
Mr. HarTison. A diviue understands tb«
Supremacy as well as a lawyer, aad • great di>
vine as wdl m a great Uwyrr.
4T
Cxwlc
■ 1379] STATE TRIALS, I + Ch. I. 1 638.
L. C. J. Then w« muit obKrvr, ihnt the
denjiingof Rliip-MDUe; u^nguiost the king's Su-
Mr. Harriton. As a lojal suliject, 1 did I«-
buur ihe defeuce of liii majetty ; and in the
point o( Kdltion, I find there ii treason com-
mitted in that. For tlie people uf the country
where I live, do now refuse to pay ihe Ship-
filou^j upon Justice 1 1 uttDii's Charge in ilmt
circuit. Our dutivj are to tell ihe people iheir
riaties. We find tliat tlie kins may du it. The
' rciMHi why I did so publicly chiuxe the Judge,
was, because there i>re such delays and such
windings in the proceedings of nil courts, and
•nutters carried b^ favnur and affection, thnt 1
titought a private insinuauoii would do little
good, and besides the oBence bcin^ openly
committed, I coiiceired it not amiss to malie a
public and open accuaation.
Mi. Alloritry. This is a scandal (o all the
court! orjuEtice.
i. €. J. Mr, Ilarrisnn, if you haTC any
tiling to ifty in your own dtftncE, you Bball be
keard : but thi) raving must not be sufltred.
Mr. Harriion. I am nrit ignorant that
•omebody* in this place is nut a favourer, but
Tatlicc a ditfavourer, of my opinion, and thtit
in the person of a Judge. As for Mr. Justice
Ilutton, though he be a man in great account,
vet all his action* have not been npprovabte.
Caucerning the Judges arguing in the matter
of Ship-Moncy, it nas the kingls gracioas cle-
mency, to have his power manifested by
■trength of arguments, and tn that end was
pleased to permit counsel on the adverse party,
who urge arguments aj^siosc it, and that the
Judges shall lie moderaturs. And the analoizy
kalds very aptiy, between this kind of a^uin^,
and the public disputations upon points r.f di-
*initj in the schools, where «e have a mode-
raior, whose office is, if the opponent urge any
^mnent weakly, to urgs it boms, yet m the
end he must deiermine tor the truth. Su here
the Judges being moderators may urge argu-
ments against the king, but yet in the end to
con<:ludi; for the king's prerogative. And ._
neiiher king nor Cud will suifei- any drrine to
conclude in heresy, so neither duth bis majesty
give his Judges te;ive to conclude in Sedition,
nor have the Judges power to make or pro-
nounce laws against the king's prerc^tive, but
arc our inoderntOTS in t)ie case of ar|;iiing.
Judge Barf ^f I. As we are moderators of
cases, so ue are moderators of persons too, and
therefore nil] mcdcrate your lavish liberty of
■peech. Vuu have slandered one juilge alrea-
dy, and in all our appre Iiensions jou have flown
in the face of two more.
Mr. Harrison. If I had not had leave lo
speak, I hsd been silent : nor do 1 think, I
have committed any offence against justice or
reason. For I say still we are not to question
the ting's actions ; they are only betueen God
and his own conscience, ' Sufficit regi, quod
■D-ial QfThomai Harnim, Oert. [I3S0
Deus est.' And nirhougli ibe outward action
Sht teem not to be altogether withom samt
ines*, yet there was some matter ia itof no-
nent, and which every loyal subject ought lo
iinintain. This thesis I will stand to, that
vhalsoever the king iji his couscieace ihinketfa
he mHy rnjuire, we ought lo yield.
L. C. J. Do yuu nut ibiuk that the king
Mr. Harruon. Yes, sod by somcibiog ebc
Judge BarlUtt. What do you think of Ous
hen, if the king shall he persuaded in his coo-
ciencf , that lie must present another man lo
our living; would you not malntaio your tight
Mr. trarritm. No, with all iliy heart I
would submit unto his majesty.
C. C. J. But you mistake my brother Batt-
lett's question ; he meaneth thus, that if the ,
king should be persuaded that he had riEht and
title to your parsonage, and did desii« that the
title should be tried, whether in this cue •radd
H trial >
* He must mean Judge Croke. See his Ai^
gament kbontShip-Moiieyonie, p. liar.
Mr. //arriion. I will answer your lord^ip.
Tliere is a difference betneen a demand tut
concerns some petty tight, or the title of tUi
or that particular matter, end a demand, whit^
concerns the great royalty of the king; you
nnkinghim, if you deny his royalty.
Mr. Attorney. This Defence is a Tery im-
pudent justification, nhich you may be qaes-
tioned for in another place : os they arc bM
and audacious assertions, so they proceed from
a distempered brain. For the matter of Sbip-
Money, or whatever else concemeth his mijcs-
ij's royal prerogative, "C, that are the king's
counsel, have and will upon all occasions be
ready to speak and du as becomes the duty of
our places, and we shall nut crave the aid of
Mr. Harrison. I must let yonr lordships knoiv
that he protesrs a deteslalion of the fact, and
"illeth that your lordships give a severe Ceo-
Verdict. Tlien the Jury witliout going from
the bar presently found biin Guilty.
Whereupon the Lord Chief Justice «»ked
him what he could say for iiimself that jud^
ment should not pass against hina. He ait-
swered, If I have offended his majesty in ihit,
I do submit to his mnjesty and crave his par-
L. C. J. Your if will be very ill taken by
his majesty, nor con this be taken fur a sob-
Mr. Atlornty. My lords, this conccra* Mr.
Justice Iluttnn no more than your lordships.
Therefore 1 crave judgment aud such a censnn
as may becoriie the helnoosuess of the offence.
No damages, but a large fine.
The CENsvnE. 1. Fine 5,000f. 9. I»-
pri»nnment during the king's pleasure. 3. To
submit Tivi rvee in the Excbequer-Cbambff.
4. To be carried from thence to all the coom
X3&1] STATE TRIALS, 16 Gmam.es L IGW.— Trial tif th Earl qf Straffbrd. [138»
io Watminster with a Paper upon' his bead
cootfiiHing bia offence. 5. And to be left open .
to Mr. Justice UuUon to take )&» reined;
agninsc him by bit actiun.
And, in pursuance of the leare given to Jus-
tice Button in tli« Sth Article, he did iu Trin.
14 Car. R, 15S8, briai; a special action of the
case in the Common- Pleas against Mr. Harri-
god; sir Robert Heath one of the king's ser-i
jennis, and Mr. Lance tlie prince's Attorney,
being of counsel for (lio PUiotiE Mr. Bear
and Mr. Mayoard for the Defendant. The
Declamtion itself is upon record. Tke Wit-
nesses ^l prove llie words were Mr. William
iJnitThson, Mr. Clove and Mr. Turner, all
Clerks of the Common. Pleas. To the DecU-
ration ibe Defendant I'liomns Harrison pleaded
Not Guilty. Whereupon issu« was joined.
Term. Mich. 14 Car. R. And a Ju^ of Mid-
dlesex consititiiig of kui){hts and esquires, nt ilie
KingVBench bar found f^r the PloinliS' Mr,
Justice Hulton, and assessed damages to
10,000/. and the Defeuditnt Uarrisoii brougU
150. The Trial* of Thomas Earl of STRArFORD,t Lord Lieutenant
oflrelandj for High Treason : 16 Chabi.es L a. d. I640J
November II, 1640.
This day a Message fioro ilie Commons to
the Lords was delivered by Mr. Fym, to this
effect ;
" My Lords ; The knights, citizens, and bur-
gesscb, uow B^senibled fur tlie Commons in par^
* " An erasure was made in the Lords Jour:
nail, by order of that liuuse, after the Kestora-
tJon uf Charles 3, of all the Proceedings against
the Earl of Straflbrd thb time. This extraordi-
nary act was taken into considerutinn in a suc-
ceeding reign, nnd another order was made by
the lot^ relaiiuK to it. This order is entered
in tte journals iuit where the lirat erasure be-
fuDs, and is in inese words ; — " Die Martis Jut
lliSto. less. Tlie earl of Rochester reported
from the lords committees, appointed tn inspect
the Journals of this house, in the year 1040 and
1641, rektins to vacating or obliterr.iing divei«
proceedings therein, pursuant to the act for re-
versing the earl of Strafford's attainder, as fol-
lows, viz. Upon perusal ef ilie Journal of this
house, in relation to ihe proceedings upon the
Impeachment from the house of cominonB, it
appears plainly, tbal, by the former nrden made
by this house, rulatioe to the cancelling and uh-
literating the proceedings of the earl of Straf-
ford, uccording to the act of parliament made
forVevcrsiog of the said earl's nttninder, it could
not be iuti^nded that any other (jroceedings
should be ahlitemted tliun those relntiiig es|ie-
dally to the said act of attainder; it is there-
fore ordered and declared, by ilie lords spiri-
tual and temporal in parliament assembled,
That whatsoever stands crossed upon the Jour-
nals relating to the proceedings on tiielmpeacb-
cnent of the said earl, ought not, or shall be
looked OD as obliterated ; nnd that the several
orders for otiliteraling and vacating any pro-
ceedi nip concerning the earl of Strafford must
be taken to be intended only to the act of at-
tainder."— Which report being agreed to by the
bouse, it was ordered, " That there be a note,
«r memorandum, of the aforesaid Order in the
margin of the Journals, where any such pro-
ccedinp have been obliterated." — But an au-
theutic copy of all the prnceedings nai atler-
liament, have received infurmation of diven
trniiorous designs and practices of a great peer
of this house ; nnd, by virtue of a commaod
from them, I do iirre, in the name of the Com-
mons now assetnbled in pniliainent, imd in the
name of all the 0<)mnioi)s of Enilaiid, ni;cuse
Thomas earl of Stra^ord, Lord Lieu
wards interleaved in the originuJ Journal by an
order of the house, 15ih Feb. 1768, and has
since appeared in the printed editions of that
w»rk." 3 Cobb. Pari, Hist. 733.
t 1 Clar. Hist, 118, 153, &c. 1 May's Hist.
of the Parliament, b. 1, c. 8. See ihe larger
Trial, which -heiug an entire volume in Rusb-
ivorih's Collection, is purposely uuiitted, and
this inserted in the stead tliereot.
X Whitlocfc, whom Hume follows and quotes,
says : " The time of the parlinment's meetiug
drawing near, it was considered at York, whe-
ther the Em] of Strafford should repair to tlie
liousp, or continue in thcNorth widi the army.
The" king was earnest for his g<nng up to the
parliament, as one, of whose seriice be should
luive great occasion, and placid much confi-
dence in his ftithfiilnets and abilities. Th«
Eari humbly desired the king, to excuse his
going to the parlianient, alledging, ' That bo
' should not be kbie to do liis majesty any ser-
' vice there; but should raihcr be a means to
' hinder his affairs; in ree^^d he foresaw that
' the great envy, nnd ill-will of the parliament,
' and of the Scots, would ISe bent against him ;
' iTliereas, if he kupt out of sight, be would not
' be so much in tiieir mind as be should be, by
' shewing himself in parliament; and if they
' th'iuld fidt upon him, he being at a distance,
< whatsoever tliey should conclude against him,
■ he might the bvlter avoid, and retire from any
' danj(er,havingilieIibertjof being nut of their
' hands, and to eo over to Irelnnd, or to some
' other place, wliere he might be most service-
' able to his majesty, hut if he sbouM put him-
< self into their power, by coining up. to the par-
' Itament, it was evident that the boose of com-
' mons, and the Scott, wiili all their party, espe-
' ciaUy being praioked by his coming amoiig^
' them, would presently nill upon hint, and pro-
* cnn. bis dettniciion,' The kingj^ nolwiib?
ISSa] ffTATE TB1A1£. 16 CHAni-ts h \640.— Trial of the Earl t^Stn^d, [Iffi4
Ireland, of Higli Treason. And they haie com-
inandtiil luc lurther t<i desire jour lord^ips,
thnt be may he sequestered from Parliament,
nnd forthwiih cimimiiced to prison, Tliej hHve
t'ui'ther commnnde'l mt- to let your lura:iliips
know, tljat thpy will, witliiu a fen- lUjs. re*>il
to voiir lordships, nil III he pai'ticuhir Articlei
and GriKinds or hi) AccuMitiin; anil tlicy do
further (tf^sire tlmt your lurdihips will think upon
some convenient and fit way, tiiat ihe pnssage
betiven Ireland and Englaiiil, flir bis iniij(-sty'9
' subiects of boih kingdoms, iiiuy be free, uot-
with->tandiiig any restraint cii Ihe ontrarj,"
Alter thi>, the Commons withdrew ; and the
Lord Keeper reported the pfftct of it to the
bouie. And, after tlieir lordships had consi-
dered of the nicHHge. ihey resolved to Eire this
Anawff' for the present, hy the Lord Keeper :
" That the brds do let Ihcm know, that they
have l*en made acouainled with the Charge 'if
High Treason, which the Cunimans liava made
standing th<^se reosniis, contTiiuL'd very earnest
fir Stafford's coming up to ihe pnrli.iintnt; fir
which he laid his cummanda upon him : and
told bim, ' That at lie was king of England, he
* was able to secure him fromany danuer; and
' [hat the parliament sliould not touch oni; hair
' of his head,' The Earl thanked his majfsi),
but replied, ' That if there shimld fall out a dif-
* fereuce between his majesty nod his parlia-
'tnent,cniictniing him, that it would hen gnat
' disturbance to his majesty's affairs ; and tiiat
' he had rather luSer himself, than tliat the
' king's affnira should in any mtasure suffer, by
' reason of his pHrucutar.' The king ri'mained
unalterable in his resolution cuncerning Strnf-
Ibrd's coming up to the parliament, ^^ji'^Si
' That he could not want his advice in the great
' transactions, which were like fi be in this p:ir-
' linment,' and in obedience to his commands,
the Earl came up to London." Memorials, p.
Se,rol.ed 1683. See also! Stralf^ird'sLelier^,
413. It 19 impossible to consider this, and the
subsei|uent conduct of kini Charles towards
Strafford, niihout perceiving that either the head
or heart of the king was lery omch in fault in
these imnsactions. Mr. Seward, from Bailiie'i
Journal, has introduced into his " Anecdotes,"
the foUoiting interesting account of the com-
mencement of this laipeachm.ciit ngninst Straf-
' All thinp go here a* we ciiuld wish. The
* lieotenant o/Ireland, lordStrafftjrd, came but
' on Monday to town, late; on Tuesday rested :
''and im WedUesd.^y came to parliament; but
' ere iiij;hi he ivas ciiged. Intolerable pride
' nnd oppression call to heaven for vengeance.
' ITie lower houio closed their iloors ; the
* Speaker kept the keys till bis accusation was
' coiielilded. Thereafter Mr. Pym went vp with
< a numherathisback to the higher hnuse,and,
' in n pretty short speech, did, in the name of
' the commons of all Enelnnd accuse Thunas
' lord Stijfford of High Treason, and required
' hi* person to be arrested till probatiOQ might
against the Earl of .Strafford; and their lord-
ships do not donbt but that the Cammons diii
take great consideration io it before they came
hiihcr ; and tlieir lordships will take it into tbeif
consideration, and will '•cut) tliem a futtlier An-
swer, by mestengers of*t heir own."
Whereupon the Ci>mm<ins ^tent to their own
hniise; and the eati ut Straffard, coming into
the buu!c, was commanded to wiibdraia. Tben
their lordships, falinig Into a t«ii<>us debate of
the Messa|!e, concludpd, and ordered, " That
the Earl of Stra:Sbrd, for this AccusatiLin of
tligb 'i'riiBSon by the Commons, sliall be pre-
sently committed to the safe custody of ibe
Gentleman Usiicr of this bonse; and to be se-
questered from coming to this house of parlia-
ment, until be hath cleared hitoself of thia Ac-
The Earl of Strafford being called to the bar
as a delinquent, kneeling, the Lord Keeper, bj
directiiin uftJie huuse, signified to bini as foC-
loweth :
' be madet so Mr. Pym aod his back were re-
' moved. The lords began to consult on that
' >trnn£e and unpremeditated motion. • Tbe
' word goes in haste to the lord tieuteoMit,
' where he was with the king : with speed he
' cuines to ilie house of peers, and calls rudely
' at ihe do«r. James Mameli, kecjier of tbe
' black rod, opens. His lordship, with a pidd<I
' glooming countenance, makes tuwaros hi*
' place at il>e bourd head, but at once many
' bid him void the house. So he ii ibrccd in
' confusion ti> go to the door till be is called.
' After consultntinn he stands, but is told la
' kneel, and on his knees, to hear the sentence.
' Being un his knees, be is delivered to tbe
' black rod to be prisuner, till he L' cleared of
' the ciimi 9 he is charged with. He ottered to
' sfienk, but was commanded tu be gone witb-
' out a word. Tn the outer rooin, James Mai-
' well required of him, as pris-iner, to deliver
' bim his swnrd. When he had |:ot it, with a
' loud voice he told his man to carry tbe Jonl
' tieotensnt's sword. This done, he make*
' through a number of people towards his
' coach, alt gaznig, nn man capping to bim,
' before whom thai morning the greatest in
' England would have stood discovered ; all
' crym^. What is the ihalter } Ue said, A small
* mailer, I warrant you. They replied. Yes
' indeed, high treason is a sm»U matter ! Com-
' ing to the place where he expected his coach,
' it was not there ; so he bi^hoved to return ih«
' saij.e way through a world nf gazing peoplr.
' Whtn at last he bsd found his cuach, and was
' entering it, James Maiwell told him, my lord,
you are my prisoner, and must go m my
coach; so he behoved lodo. For some dnystoo
' many went to see him ; but since, the parlia-
>t ijicuriotu or ttDiDterestmg acconot
1385]
" My loni of StrafibnJ ; The House of Com-
mons, iii tbc'irnume, mid iii ihename of Uie
B Commons nf Che kiogdora of England,
have this dnj accused your Is
spiritual and tei
e lords
STATE TRIAIA 16CharlmI. 10*0.— for High Tream. [13S6
force of arms to compel his loTfll tabjecta to
II. That i)e hath traitoroiulyBMumed to him-
self cegal power over the lives, lihertie^ per-
sons, lands, ^nd goods of his majesty's subjects,
in Eogland and Ii-eland ; and hatli exercited the
same tyrannically, tu the subvcnion und undo-
ing of manj, boih of peers, and others of hit
oiitjesiy's liege people.
III. That the beU4;r to enrich and enable
himsi'lf to gu ihrough with faia traitorous de<
sigiii, be hatli detained a great part of his ma-
jesty's revenue, without giring legal account;
and haih taken great sums out ol the Etche-
quer, convertiiig them to liis owo use, when hit
majesty wanted money, for his ovrnvureent oc-
casions, and his army had been a lung time uu-
IV. That he hath traitorously abused the
power and authority of his government, to the
increusing, couotenanclne, and encnutaging of
papists; .that so he might settle a mutual de-
pendence and cou£dence betiriic hiinseV and
that party, and, liy their help, prusecnte and ac-
complish his malicious and tyrannical designs.
V. That he hnth maliciously eiidvavoured to
stir up enmity and hostility between his majet'
ty's suMects of Etvland and those of Scotland.
vt. That hehath traitorously broke the great
trust reposed in him by his majesty, of lieute-
nant geueral of his army, by wilful betraying^
divers of his majesty's subjects to death, bia
arm; to a dishonourable deteat by the Scots at.
Newborne, and the town of Newcastle into
thiir hands ; to ihe end, that by the eSimm of
blood, by dishonour, and so great a loss as that
of Newcastle, his majesty's realm of England
might be engiiged in anaCioualand irreconcile*
ablf t^narrefnith the Scots.
VII. That to preserve himsflf from bcinff
questioned for those, and other his traitorous
coorsrs, be laboured to subvert ihe right of par-
liaments, nud the antieut course of parliament-
ary proceeding!! ; and, by false and maliciow
slanders, to incense h'S mnjesiy against parlia-
ments. By which words, counteb, and actions,
he hath traitorously, and contranr to his alie-
giiince, laboured to alienate the hearts of the
Line's liege people from bis majesty, to set adi-
(ision betiveen them, and to ruin and destroy
his mnjesty's Liniidonia: for which they im-
peach him of Hit:h Treason against our sote-
reign lord the ting, his crown and dignity.
viii. And he the said earl ofStrdHnrd was
lord deputy of Ireland, and lieuteniim geiferal
of the nrnij of bis most excellent majesty, for
his kingdoms both of England and Ircfaod, and
the loi3 president of the north, during the time
that nil and every the crimes and offences be-
fore net forth were dune and committed; and
he the said earl was lieutenant generd of all hii
majesty's wniy in the north parts cif Eligland,
duriog the time that the crimes and offences in
the fifth and sixth articles set forth were don*
and committed.
i\. ThallhesaidConmons,byprDtestBtiniu
saving to' tbemMlTestbe liberty of eibibiting at
u,_, ,Goo;;lc
mporal in this high court of pi
luunent assembled, of High Tre«&>n. The Ai^
tides they will within few days produce. In
the mean time, they have desired of my lords,
and the lords bnve accordingly resolved, That
your lordship shall be committed tu safe custody
to the gentleman usher, and sequestered from
this house, until yuur lordship have cleared
yourself of the Accusation that shall be laid
against you."
AAer this, be offering to speak, was not per-
mitted, but immediutery sent away. And so
ihe earl of Stratford went out of the house to
the gentleman usher. Afterwards, the lords
thought it (it to send a Message to the Com-
mons, to let them know how far thty bad pro-
ceeded tor the present ; and their lordships did
agree, that the two Lords Chief Justices should
deliver a Message to the Commons, to this ef-
fect ; " That the lords of the Iiigh court of pai^
liament have taken into consideration the
Charge of High Treason, which the Commons
have made ng^unt the earl of SlraSbrd ; and
do let them know that their lordships iMve com-
mitted him 10 safe custody ; and b^ve seques-
tered him from coming to the house ; and do
desire that the Ari:clES and Accusation againil
him may be brought in speedily ; nnd further
to let tl^em bnoiv, that their lordships will take
it into ^nsideratiuii how to free and open the
passage between Ireland and England, notwitli-
atanding any restraint; and to that purpose
will move his majesty in it."
November 35. A Conference took place be-
tween both fl'iuses; and ihe Lord Keeper re-
ported the effect of it ; vii. " That the House
of Commons have delivered their Articles ol'
High Treason against the Earl of Strafford, con-
sisting of divers Charges; and that the Com-
mons desired, 1. Tiut the Earl may be called
to answer tba said Articles. 3- That ibey may
be made acquainted with the Earl's Aoswcr.
S, That they may be made acquainted with the
Depositions, 4. They required further, they
might add to their AccU'tntion, as occasion
should serve. Alter this, the Ariides were read
publicly, in hac teiba :
ABTici.Esof the Commons assembled in Par-
liament ai:Bia:tTHDii<.s Earl ofSTRirFOtiD,
in maintenance of the Accisation, where-
by he stands charged of High Treason.
1, That he ihe said Thomas Earl of Straf-
ford hath iraitor.pU'ly end'avouted to subvert'
the fundamental laws aAd governmcni of the
realms of England and Ireland, and, instead
thereof, to intr'iduce an arbitrary and tyranni-
cal government against law; which he hath de-
clared by traitorous words, counsels, and ac-
tions; and by giving his nii^esty advice, by
* See Luders's " Considerations on the law
•f High Treason in the case uf levying war," 83.
U87] STATETRIALS, lOCHUitEsI. IMO.—iyial qf the Earl ^ Sb-ajbrd, CISSI
any time hereafter nny ultier A<:cuhBtioD or Im-
peachment against the snid Earl ; and atsn o{
replying tn ilie Ap^weis that he ilie said Karl
thnll make unto the tnid Articles, or to any of
theni, and ofolfering proofs; also of tlie pre-
mises or ally of them ; or on; other Impeuch-
ment or Accusatiuii that sWl be eihibited by
theiq, as the cause EhiOl, according to ihp course
of parliament, require: do pray that the said
earl may b« put tu answer for all and every of
the premisei, that such proceedings, ei)uiiina-
tions, trials, and judgments may be upon every
oftliein had and used, as. is agreeable to law ond
Articles of the Commons aasercbled in Par-
Jiatiieot ag;iiiist Thomas Eiirlol Strafford,
iu main tenance of their Accu9iT!0N,w)i (!re-
fay he stands chained vk'ich High 'Treason.
Whereas the said Commons have already ei'
Iiibited Articles against the said Earl, in Aiic
verba, now the said Commons do further jm-
peach the said £arl as followeth : (that ii to say)
■ r. That the said eari of Straffurd,,the Slst
day uf Miircb, in tlie eighth year of his iraajesty's
reign, was t'resideat of the king's coufidl in w
northern parts of England.
That the said earl beinR (president of the said
council, on the Slst of March a Commission
under the groat seal of England, with certain
•cheduies of instructions t^reunto annexed,
Woe directed to the said earl, and others the
commissioners therein named, i^hereby, among
other tlungs, power and authority is limited to
the said earl, and other> the commissioners
thereiu named, to hear and determine all of-
fences and im is demean OUT), suits, debates, con-
uoversics and demands, causes, things and
matters whatsoever therein contained, and with-
in certain piecincta iji the said northern pitns
therein speciSed, and in such manner as by the
taid schedule is lioiiied and appointed.
That, amongst other thinj^s m the said In-
■(ructions, it is directed, that thesaid President,
and others therein appointed, shall bear and de-
termine ncording to the course of proceedings
in tire Court of Star- Chamber, diveti oFfences,
deceits and falsities,(berelLi mentioned, whether
tlic sume be iirovided for by acts of parliament
or not 1 so that the Fines imposed be not less
than hy the aa or acta of parliament provided
against those offences is appointed.
That alio, amonest other things in the said
~ Instructions, it is directed, that the jaid Presi-
dent, and otliers therein appointed, have power
to iMamine, henr, and determine, actxtrding to
the course of proceedings in theCourt of Chan-
cery, all manner of Complaints for any matter
nitJiin the said precincts; as well conireming
lands, tenements, and hereditaments, either
free-hold, custumary, or copy-holH, ai lease*,
and otiier things therein meotiontnJ ; and to
stay proceedings in the court of Common Law
by Injunction, or other»ite, by ail ways and
meajis, as is used in the Court of Chancery.
And although the former Prewdents Qf th<>
^d Council had never put in practice luch In-
^trucijons, not h«d, tbey any such Iiistriif!tuu)s ;
yet the sdd Earl, in the month of Slay, in the
said 3th year, and divers years following did
put in piaciice, exercise and use, and caused
to he used and put in practice the said Ctn»'
mission and Instructions; end did direct and
exercise nn eiorbiiant and unlawful power and
jurisdictioD r>ver the Persons and Estates Of bis
majesty's subjects in those parts, and did disia>
hetit dive.rs of liis majesty's subjects, iii Ukmc
parts, of their inheritances, le^ueatered their
I possessions, and did fine, ransom, punish and
imprison ihetn; and caused litem to he fined,
ransomed, punished, and imprisonad, to Uieir
ruin and destruction ; andiuamely, air Cunier)
Darcy, sir John Bpurcher, and diiers others,
against the l^ws, and in subveivon of the same-
procured and issued by advice uf tJie said EarL
And he thf said Earl, to the iulent that such
itlegul aud uiyust power might he exerciMd with
the greater licence and will, did advise, cuuuscl,
and procure fnrtber Directions, in and by the
said I[)structions to be ^ven, that no Prohihi-
tion be granted at all, but in ca^es where the
said Council shall exceed the liiniti of the said
Instructions; And that if any Writ of H&beai
Corpus be graiited, the party be not discbarged
till the party perforin the Decree and Order of
the said council.
And the said Earl, in the 13th year of his
majesty's reign, did procure a new Comniiuion
to himself, and oihets therein appointed, with
the said Instructions, and other unlawful Adr
ditions.
That the said Commission and Instruction*
II. That shortly after the obtaliiiu« of (be
said Cominiuion, dated tlie 31st of March, in
ihe 8lh year of bis majesty's reign, to wit, the
last day of August then next fnllowing, be ibe
said E«rl (to bring his majesty's liege people
into a dislite nf his majesty, and of his govetn-
locni, nod to terrify the Justices of the Peace
from executing of the laws ; he the said Earl
being then President, as aforetnid, and- a Jus-
tice.of Peace) did publicly, at the Auizes held
for the county of York, in the city of York, in
and npun the said last day of August, declare
and uuhlish before the people there attending
for the adminislrBtiuu of justice according to
law, (and in thepresence of Justices sitting) ibat
some of the Justices vrere all for law, and d»
thing, would please tbem but law ; bat the;
should find that the King's IJttle-fioger shonU
be heavier than the Loins of the Law.
III, That the realm of Ireland having been
time out of mind nhneied to tlie Impeiiat
Crown of this his m»jesty's realm of SosUnd,
and governed by the same laws; the laidEaii
being I»rd-Deputy of that renlcn, to bring bis
majesty's liege subjects of tliatliiugdom likewise
into dislike of his majesty's government, and ie-
tending the subversion of the fundamental tan
and settled government of iliat realm, and the
dcsiniclion of his majesty's liege people dive,
did upon the SOtb Jky of S«pt«mber,^ in, the
13f9]
STATE TRIAIS, 18 Charles I. IGW.—Jbr H^ 'n-eamn.
C1390
9th vcAr of bii DOW niajmty's reign, in the citj
of fiuhiin (tlw chief rity of ihol renlm, where
his nmjestj't privy-council and cmms of jusiice
do ordiiiKrily reside, und whither tiie uubihty
nnd gentry of thnt realm do usually reiort for
justice), i[)B puhlic speech, before divers of the
nobiliiy and gentry of that kingdiim, and before
the rii»j(ir, ^dermen, and recorder, and nfnny
' citizens of Dublin, and otiier h'n niajcsry'i )ieg(^
people, ilcclnre nnd publish. That Ireland nns
a conquered nation, and that the king might du
with them what he pleased. And speaking of
the Chatters of fonuer Lings of England made
to that city, lje furthffr then aaid, That tht^ir
Charters were ntithing worth, nnd did bind llie
king no further than he pleased.
tv. That Richard earl of Cork having sued
out process in counc of bw, for recotery of his
posse ssinni, from nliich he was put by colour of
an Order made by ihe said eurl of StratTnnl,
and the Council-Table of the said realm of Ire-
laud, upon a Pa per- Petit ion, without legal pro-
ceeding, did the 30th dajr of February, in the
11th year uf hit now majesty's reign, threaten
the said Earl (being then a peer of ibe said
realm) to imprison him, unless he would sur-
cen^ his suit; and »nid. That he would have
neither taw nor lawyers dispute or question hii
Orders. And the 'JOih day of March, in tlie
aaid 11th year.thesnid earl nfStraifoTd, speak-
ing of do Order of the said Council-Table of
that realm, made in the time of king James,
svliich concerned a Lease which the said ear! ol
Cork claimed in certain rectories or tythes,
which iho said carl of Cork alledged to be of
no force, snid. That he would make tbe said
Eori and «ll Ireland know, that so lorg as he
had Ibc government there, anv Airt of State
there made, ur to he m:ide, shall ho at bindiu<;
to the subjects nf that kiiigdotD, as an Act of
Partiamrnt: And did question tbe sahi earl of
Cork, in tbe Castle-Chamber (here, iijion pre-
tence of breach of the said Order of Council-
Tuhle : and did sundry oiher times, and upon
tundry other occasions, hy his words and
Speeches, arrogate to himself a power above
the fundamental laws and estahhahed govem-
tnent of thnt kingdom ; and scorned the said
laws and established gorcrnmenc.
v. Tliut according to such his Declarations
and Speeches, Ihe said Earl of Stratford did <isc
and exercise a power above, nnd ai^ainst, and
to the subversion of the said fiindatneDtal laws
and established government of the said realm
of Ireland; eiiending such bis power to the
gtKHls, freeholds, inheritances, hherties, and
lives of his miijesty's subjects of the said realm :
and namely, ti.e siud earl of Slrafibrd, t^e I'ith
day of December, 103S, in the time of full
peace, did In ihe said realm of Irehuid give,
aad procure to be given, against the lord Mount-
norni, (then and yet a peer of the anid realm
of Irehind, and tiicn Vice-Treasurer and Ke-
ceivci^eneml of tbe realm of Ireland, and
Treasurer al War, and one of the Principal
Secretaries of State, and Keeper of tlie Privy-
lignetuf the laid kmgdom)a'S«Qt*nc« of Death
posse!
hy a Council of War, called togelher by th«
■aid earl of SiralTsrd, without any warrant or
authority of law, or olfeiicc deserving any such
Kmishraent. And he Ihe said Earl did also at
uhlin, within the said renim of Ireland, in the
month of March, in the Uthycnr ot his roajcs- '
t/s reigu, without any leyal or due proceedings
or trial, give, and cause to he given, a Spntcuce
ofDeaih against one other of his luajestv's sub-'
jeciB, whose oaiue Is yet unknown ; and' caused
him 10 be put to death iu execution of the same
Sentence.
VI. That IIk said earl of Strafford, without
any legsl proceedings, and upon a Paper Peii-
liiin ul Richard Rolston, did cau<e tbe said loid
RIouninorris to ha disseiied.and put out of
isession of his freehold and inheritance of
manor of Tjmore in the county of Armagh,
in the kingdom of Ireland, thesaiii lord Mount-
norris having been 13 years before in quiet
possession thereof.
vji. That the laid Earl of Slrafford, in ih«
Term of Holy Trinity, in the 13th year ofhis
now mnjesty'g lelf^a, did cause a Case, com-
monly called ' The Case of Tenures upon de-
fective Titles,' to be made and drawn up witli-
out any jury or trial, or other legal process, ailti
without the consent of panics; and did then
procure the Judges of the said realm of Ireland
to deliter their Opinions nnd Ileiolutions to
that case ; and hy colour of such opinion didi
wiihont any kgal proceedings, cause Thomas
lord Dillon, a peer of the said realm nflrcland,
tube put out of the possession of divers lands
and tenements, being his freehold, iu the coun-
ties of Mayo aud Koscommon, in the said king-
dom : And divers other of his majesty's "iob-
jects to be put out of possession, and diiseiied
of their freehold, by colour of tlie same rctohi-
lion, without legal proceedings; whereby many
hundred) of hit majesty's subjects were undone,
and their families utterly ruinated.
' VIII. That the said Earl of Strafford, upon a
Petition of sir Jolm Gifford km. the Isl day of
February, in the said 13ih year of his m^CLty's
reign, without an^ legal process, mnde a De-
cree or Order agBinst Adam viscount Loftus q{
Ely, a pMr of the Said realm af Ireland, and
lord cluincellor of Ireland ; did cause the inid
And the said Earl, wiihout any authority,
and contrary to his coramiwion, required, and
commanded the said Lord Viscount to yield up
unto him tbe Great Seal of the realm of Ire-
land, which was then in his custody by his ma-
jesty's command, and imprisoned the mid Chan-
cellor for not obeying such his command.
And without any legal pro(%ediiig did, in
the same 13th year, imprisoa George earl of
Kildare, a peer of Ireland, against law, thereby
to enforce liin to submit bis title to the manor
and lordship of Castleleizh in the Queen'i
county, (heioa of grfat yearly value) to the said
Earl of Strafford's will and pleasure, aid kept
him a year priaoner for tbe said ^lue; iwa.
1391] STATE rmAlSt 16 CHAK.%i I 16ia.—Trud<if the EariqfStraford, [ISB
montlis whereof be kept him close praoner,
'and ndiKd to enlarge him, uotwithstandiiif
his majesty's Letteri fur bis enlarijemeDt, to Uie
nidearlufStnSbrd dlrecied.
And uu'iii kPetiiioD exhibited in October,
1635, bjTbomas Ilibboo, Bgainst dame Mary
IlibboU widvn, to him the said euti of Stral-
f ird; the iiid Eaii of SiralTonl recommended
the said Petition to the CounciJ-Table uf Ire-
land, where the ronsi part of the Council gt
their vote and opiniuo tor the said lady ; but
tbe said Earl fintfiag fault herewith cauMid
Order to be entered aKainit the said Indj, i
threatened her, ihat if the refused to submit
thereunto, be would imprisou lier, and fine her
iOOt. : that ifshe continued obstinate, be would
continue her imprisonment, anddoubleherfii
crer; munth. Bj means whereorBhe was e
forced to relinquish her tsuxe in the lands
tjuestioned in the said Petition, which bboni;
mller were eoovej'ed to Mr Robert Meredith, to
cbe (lie of tlie said Earl of StratTotd.
And the snid F.arl in like manner did impri-
son diven otliersof his niBJestj*s subjects, upon
pretence of diwbedienee to bis Orders, Decrees,
and other illegal commands by him miide for
pretended tlcliD, titles of landi, and other
causes, in an arbitrary and extrnjujicinl coui
upon l'«per Petitions to him preferred, nnd
cau>e legally drpeiidini:.
IX. That the said Earl of Strafford the 16th
day of February, in the 13th year of hi^ mi
jesiy's reign, anuniing to himself n power aboi
and itgaiust law, took upon him, by a General
Warrant under his hand, ti) giie power to t' -
loid bishop of Dnwne and ('onnor, his clii
cetlor or chancellors, and their seieral officer*
thereto to be appoir.ted, to ottuch and arrest
tlie bodies of all such of the meaner and poorer
sort, who, Kfier citation should eiiliet refuse to
.appear before them, urnppearing should omit
or deny to |>ertsnii <ir uniierEfi all lawful De-
crees, Sentences, and tmlftf, i> wed, imposed,
oTjiiren out nc»iatt iliem, and them to commit,
■nd keep in the neit e^oI until they should
eitlier perform such Senrencps, or put in sulfi-
cient hnil to stiew some reason before theCaun-
cil-Table of such iheir cmitempt and iirglect.
And the said Earl, the 6-jy and year last men-
tioned, sianed nnd iiauid a warrant ta that ef-
fect; nnd made the like ivnrrants to sever.il
other hiihop't, and their cbancellurs, in the said
realm of Ireland, to the same efTect.
X. That the said Enrl of Strafford, being
Lord-Lieutenant or Deputy of Ireland, pro-
cured tlie Customs of the Metchaodizes ei-
yontd out and imported into that realhi to fie
'farmed to liis o«n ii-e. — And in the 9th yeflr
of his nuw mnjciiy's reign, be having then
interest in .the said custDras, (to advance hii
own gain niid lucre) did cause and procure the
natiTe comm-Hjiriesof Irelaiid to be rated in
the Boot of Riitfs for the Custom* (acconliDg
%o which the cuitomi were usually gathered) at
fitr greater vniues and price* than in truth they
were wortb; tliat is to say, et-ery hido at 80i.,
wbich in trutb m^ wortb but (t, ; «TeTj itone
of wool at 13j. 4d., tluxigh the Hme were reaUy
worth hut ii., nt tbe ulmott 9i. : by which
means ilie Custom, which before was but a
twentieth part of the true value of tlie cwdiido-
dity, WIS enhanced sometimes a Gfth pai t, and
•omrliines to a foutlh, and sometimes torn third
port of the true value, to the eteai oppreuioo
ofthe subjects, and decat uf mrrehaodize.
XI. Ihat the said Earl, in tbe 9th <rear of
his majesty's reign, did by his own will and
plensure, and for his own lut:re, restrain the
exportation of ihe conimodi[ica of that kio^-
dotn without bis licence; as namely, pipe-
staves, and other commodities; and then ratscd
great suing ofmooeyfor Licences oteipoK>-
linn ofthobc commodities, and dispeosaiioa of
the said restraints imposed on them : by wiiich
metuls the pipe-staves were rwsed from 4/. lOt
or bl, per IDOO, to 10/. and sumetimea 1 1/. per
1000. And other commodities were eiihmced
in the like proportion, aud by the same aeati^
by him tlie said Earl.
xli. That the said Earl, being Lord Deputy
of Ireland, on the gih dtiy of January, in t^
l:$ih year of his now majesty's reign, did then,
viniler colour to regulate the importation of
Tobacco into the said realm of Ireland, i^oe a
Proclamation in his majesty's name, prohibitii^
the importation of Tobacco, without licence et'
him and liis Cijuncil lliere, from and afier the
l9t da^r of May, 1C38. After Hhich restraint,
the said Eari, notwithstanding the snid restraint,
caused divers great quantities of Tobacco lu
be imported to his own use, and Ire^hlMl diven
ships with Tobacco, whicli he iniportEd to hit
own usei and that ifany ship brought Tobacco
into any port there, the said Earl and his igrnts
used to buy the anme to his own use, at their
own price; and if ibnt the owners reliiied to
let him hare tbe same at undrr-values tlwa
they were not permitted to vent the same there.
By which undue means the said Enrl having
gotten the whole trade of Tohucco into his owit
hands, he sold it at great and eireHsiTe pricei,
such as lie litt to impose fi>r his own profit.
And the more to at^'Ure tbe said iiionopuly of
Tobncco, be the said Earl, on the 93rd day of
Februnry in the 13th year aforesnid, did issue
another Proclamation, ommnnding that none
should put to siile any Tobacco by wholesale
from and after the last day of May then ncu
following, but what should be made up into
rolN, iin3 the same sealed witli two seals k*
himself appointed, one at each end ofthe n>ll.
And such as whs not scaled to )« sdted, ap-
pointing Gd. the p6und for a reward to toch
peiaoDS as should seize the same; nnd ihe per-
in nhow custody the uusetiled Tobacco
d be found, to be committed to nol i
which lait Frociamatiun was coloured by a
pretence for the restmining of the sale of ui>-
wholesoroe lobacco,-but itwai truly toadvanoa
tbe 9:iid Monopoly.
Which Prodamution the said^Earl didr^or-
nusly ptit in eucmion, by seiui^ the good^
lining, imprisoning, whipping, and putting tha
Offudeis againit the iaiiu PracUmatioa on the
1305]
STTATE TRIALS, iftCiiAHLMl. 1840.— /or Higft IVwmob.
(1994
|)iU<n7; »nniundy, BumabyHultbnnt, Kdwnrrt . Rlh yenr of liismnjcMj's reign, dM b» hi* nwn
Cavena, John Tuineii, snd divers others; anrl , authoricT^ without any warrHnt or colour uf
made ihp otiicers onsiMe, Rnd justice* iif peace, ' l:i», tux and impose Rreat suriis of mnney u jiin
end otlier 'ifticen to j^rve him in the compass- ' the towns nl' Baltimore, Baadcnbridi:e,T'ilo»G,
■ng and neculinc tbesc nnjuM and undon I mid divefs other lowns and places in the -aid
cnursps. Uy which cnielties, and unjust Mo-
nopolies, the said Earl raised 100,000/. per an-
num %»'in to hiinielt'. And yet ilie said F.url.
titougli he eahanced tiie Cuiiums where it con-
cerned ihe merchants in ^neral, ret drew donn
the impost formerly taten un -Tobacco from
tii. tbe .pound to 3d. the pouud; it being for
' bis own proiic so ta do.
Anil the said Earl, by the same and ncber
rigonjut and undue loeans, raised several oiher
MaoopolJe* and unlawful exactioni for his own
fain, viz. on starch, iron poll, glasses, tobacco-
pipes, and several other commodities, -
XTil. Tliat Flax being one uf the principal
and native commodities nf thai kingdom of
Ireland, the Mid Earl hai'iiK goicen gieat
qnantilies thereof into his hand, and growing
«ii bis.own lands, did issue out several Procla-
mations, viz. the one dated the 31st of May, in
the lath of his majesty's reijiri ; and the other
dated the 91st of January, in the same year;
thereby prescribing and enjmning llie vrorklng
of FInx into yarn and thread, and ibe ordoriLi^
of the same in such ways, wherein theltnlives
of that kingdom were unpractised i.ml unsltil-
fol. Which Proclamations so isiuud, were by
his commiinds and warrants to his maiesty'a
justices of peHce, oiidMlier officers, and hj
other rii;orous inenns, put in execution ; and
the Flax wrousht or ordered In other manner
than as ihe said pmclamution prescribed, wag
seized and employed to the use of him and liis
ageiitii I and thereby the said earl endeavoured
to gain, and did gala in effect, the sule lale of.
that native commodity.
XIV. That the said Earl, by proclamation
dated the Ifith of October, in uie 14th year of
his majesty's reign, did Impose upon the
owners, masters, pursers, and boatswains of
every ^ip, a new and unlawful oath, viz. That
they, or two or more of ihem, immediately
•tier tiie arrival of any ship within any port or
creek to the said kiiigilom uf Ireland, should
give in a true invoice of the outward bulk of
wares and merchandizes first laden aboard
them, togetlier viith the several marks and
number uf goods, and the qualities and condi-
tion of the said goods as far as to them sboiild
be known ; the names of ihe several merchanrs
proprietors of tlie said goods, and tlie place
from nlience lliey were frauglited, and whither
ibey were hound to di3char)>e: which Prncla-
[oation was accordingly put in execution, and
■undry penuns entiirced to take the said un-
lawful oath.
XV. That the said F.arl traitorously and
wickedly devised nnd contrived, by force of
nrms, mid in a warlike manner, to subdue the
iDbjcrle of ihe.said realm of Ireland, and to
bring [hem under his tyrannical 'power and
will ; and in putsuanee of bis wicked and Imi-
■atous pnrpows afotesaid, the said Earl in the
nC Ireland ;
he levied upon the iohabitunts of those town*
by troops of soldiers, with foriN; tutA arms, in
warlike manner. And on the 9ih of lUjrch,
in ihe ISth year of his n<iw innjesiy's reinn,
traitorously did give BalbDrity unto RoI.ert S«-
vile, a Serjeant at arms, and to ll>e cnptaius of
the companies of soldiers in several parts of
that realm, to send such numbers of soldiera
to lie on tlie lands and houses of such as would
not conform to his orders, until they sli>iuld
render obedience to bis said orders and war-
rants ; and after such submissinn, ani not be-
fore, the said soldiers to return to their garri-
sons: And did also issue the like warranto unto
divers others, nhich warrants were in warlika
manner, with force and nrmii, put in execulinn
accorditigly ; and by such warlike means did
force divers ot his majesty's subjects of that
realm to subniit tliemselvea to his unlawful
And in the laid lath year of 'bis majesty's
reiiin, the said Earl did traitorously cause cer-
tain troops of horse n(id foot, armed in warlike
manner and in warlike array, with force aitd
arms, to expel Aicbard Butler from the postei-
sion of the manor of Castle-Cumber, in the Irr-
ritnry of Idoiii:h, in tite said realm of Ireland ;
and did likewise, and in like, warlike manner,
expel divers of his majesty's siil^ects from their
houses, families, and possessions ; as namely,
Edward Obrenmaii, Owen Oberman, Joint
Brenman, Patrick Oberman, sir Cyprian
llortefield, and divers others, to tiie nuniber of
about an 100 families; and tonk and imprison-
ed them and their wives, and carrird them iiri-
soneis to Dublin, and titere detained, until Itie^
did yield up, surrender or release llieir respec-
tive estates and ri'his.
And the said Eari in like warlike manner
hath, during his goremment of the said king-
dom of Ireland, subdued divers others of hit
majesty's subjects there to his will ; and there-
by, and fay the means aforesaid, bath levied
war within the said realm against his majesty
and his li^e people of that kingdom.
XVI. That the Rail, the 21nd of Feb. in the
7th year of his majesty's reign, inle'idiiigtft op-
press the said subjects of Ireland, did inake a
Prnposition, and iibiamed from his majesty an
allowance thereof, That no eoroplaini of injiri-
tice or oppression done in Ireland, shoultl ba
received m England against any, unless it ap-
peared that tlie [Hirty made first his address to
him the said Earl : and the anid Earl having by
such usurped, tyrannical, and exorbitant
piiwer, eicpressed in tlie farmer Articles, de-
stroyed and oppressed the peers, and other
subjects of that kingdom of Ireland, in their
lives, consciences, lands, liberties anil estate* ;
the said Earl, to the intent the btiter to main-
tain and streDgthen Iris said power, and W
bring tha people into n disaflnclinn of his ma-
jesty, tis afbmaid, did use his mfijestj's name
10 die executinn ol'tlie said poner.
And [a prevent the siibjcrt^ ofi tliat realm
of all means uf cumplnintt to his majeslj, and'
of redress at^nst bim and his aicents. did issue
■ Proclamatiuii, bearing date ihe 17th daj iif
Se|)tembcT, in (be lufi jear of his majesty's
reign, thereby commanding alt the nobility, un-
dertakers, and others who held esluies and of-
fices in the sniil kin^um, (except such as were
•mplujied in his miyeaiy's servicv, ur attending
ia England byhis special cnnimand) to mate
tbeir personal mideuce in the saiil kiiif^ont of
Ireland, and nut to depart thence without li-
isiued other
It' himself.
And the said EarL hath a
Proch
» the Si
le purpose, I
1395] STATE TRIALS, 10 ChablesL 1640.— TVw/i/rte Earl flratrofori [ISW
fide, that the said new Am; of Papisn ntn
dulj paid, and had all necessaries pnirided for
tliea, and permitted the aiercise of Uieir [eli-
sion j but llie said old Armj were for the ^>acc
of une trhole year and upwards uopaid.
And the said Earl being appomted' a Coa-
mistioner wicliin eleven several couultM of tbe
northern parts of England, for cumpooadio;
with Kecusanis fur iheir Forfeitures due to hi*
majesty, which coroinissioa beareth date tke
8ih of July, in the 5lh year of his oujestr's
reign ihat now is; and being also receiver of
the Coinposition-Mone; thereby arising, and
of other debts, duties, and petialties, by reuou
□f recusancy within the said counties, for h*
majesty's use, by Jetten patents dated the 9Ui
day of the same July ; he, to engafc* the wid
Recasants to-bim, did compound with them at
low and under rates, and provided llrat ifaey
ibouid be discharged of all proceediius agaioK
ibeni in all his majesty's courts, boih lempural
and ecclesiastical, in manifest breach of, and
contrary tOrthe laws and ilatulci of this realm,
in chat behalf established.
XIX. That the said Earl having taied nnd le-
vied the said Imposition*, and raised the aaiJ
Monopolies, and committed [lie said other Up-
pressioni in liis majesty's name, and as by liii
majesty's royal command ; he ihe said Earl, ia
May, the IMh year of bit majesty's rngn, did of
his own authority contrive and fmme a new and
unusual OHtfi, by the purpart whereof, atDnng
many other things, the party caking (be said
oath was to swear. That be should notptolett
against any his majesty's mynl en
submit himself in all due obedieo
Whitdi Oath be so contrived, tu ioforce
seme on ibe subjects of the Scoiish nation h
biting in IreUnd; and out of a haired it
whereof the subjects of the said realm are re-
■trained from seeking Relief against ibe op-
presiions of the said Eari, without his licence;
which Proclamations tlie said Earl hath by
•everal rigorous nays, as by line, imprisoii-
■lent, and otherwise, put in execution ou his
tnajctty's subjects ; as namely, one
Parry, and others, who came over only to oom-
plain of the exorhitaiices aSd oppresiions of
the )»id KaH.
ivii. Time the snid F.aH hncing, by such
nenns as aforewid, subverted ihe governmeut
and laws of the kingdom nf Ireland, did, in
hiarch, in tile 16th year of his majesty's reii>n,
in kcandal of his ninjesty's Eovetninent of all
his kingdemi, and in further execution of his
«icked purposes aforesaid, speaking of the
, Army in Ireland, deuUre, Tiiat his majeity
was so welt pleased with the Army of Irel.ind,
and the con~ei]ueiicei thereof, liiiic liis maje^y
would certainly make the same a pattern for
all his three kuigdoms.
, XVIII. Tiiat the snid Earl, for thebederef-
fecting of his traituroiis designs and wicliol
. purpoBCi, did endeavour to draw a Depend-
ency upon himself of the Capisls in both kiiu;-
donis of England and Ireland ; und lo that end,
during the tune of his govermnenc in Ireland,
he restored divers I'rjeries and Mass-lmusts
(which had been formerly suppressed by the
precedeot Deputies of that kingdom ; two of
ntiicb houses ate in the city of Dublin, and had
been assiuned to the use of the University there)
to the pretended owners ihereof, wKo luve
■ince employed the same (o tiie excrtiie uf the
popith religion.
And in the months of JMny and June Inst
Ihe said Eiiri did raise an Army in the said
realm, consisting of 8,000 foot,' all of which,
except 1,000, ur (here.ibouts, were I'apists ;
and (he said 1,000 were drawn out of the old
' Aimy there, consisting of 3,000 Ipot, and in
their places tlicre were a 1,000 Papists, or
thereabouts, put into (he said old Army by the
•aid Earl.
And the mi^re to engage and (ie the swd
new Army of Papists lo himself, and to encou-
rage them, aud to discourage and weary out
Uie Mid old Army ; tba isid Earl did so pro-
with his ma|esty and bis government there;
and compelled divers of his DHJesiy'a said sub-'
Jecis there to lake the siid onth agaiust their
wills ; nnd of sucb as refused to (akc the taid
oath, some be grievously fined and imprisoa-
cd, and otheia be destroyed and exiled ; and
iiaiiiely. the lOtli Oct., a. d. 1639. he fiaed
Henry Steward end liis wife, who reAued e>
. take the said Oath, 5,000^ a-piece, and tbeir
two daii^ters aud James Gray 3,0U0/. a-piece,
and imprisoned them for not paying the said
. Fines : the said Henry Steward, his wife and
daughters, and James Gray, being tbe king'*
ittffi people ofthe Scotijh nation. And (hveia
others he used in like manner. And the said
Earl upon that occasion did declare, Tbit (be
said Oath did not only oblige them in point of
allegiaace to his majesty, and acknowledgment
. of his supremacy only, hut to (be cereoMinia
and government of the church established, aad
to be CEtabhshed by his majesty's royal autho-
rity; and said. Chat tbe refoaera to obey b*
would prosecute to the blood,
XI, That the said Earl hath io tbe 15th aad
' 10(h years of his majesty's reign, aad diven
years past, laboured and endeavoured to breed
i<) hit mRJ?s^ an ill opinion of biisubjecu,
139TJ
STATE TftlAIi?, IdCHrt«iE»r. i640.— for High IVcaum.
[1399
namel;, of thme of tlie Scotiih nation; and
dirers and sundry tmt*, and wjteciallj lince
the Paciticalian made b;^ liis nrnjcBt^ wiih hi)
•aid tubjecu oTScotiand in sumiuer, in ihe 15th
year of his iDajeaiy's reigti,l)e the snid Earl did
labour and cnde.-ivour tu persuade, incite, and
provoke bii uinjesty to an oQcnsire wiir agiiinst
Itissaid subjects ol the Scotiiti naliun. And
tbe «aid Earl, by hit couobcIs, actions, and en-
deavour*, bath been and is a princiunl and
chief inoendiarj of the war and discord between
his majest; nod his lubjecta of Englaml, and
the taidiubjects of Scotland; and haih declar- '
ed and advised hii majettjt, that ihe demands
madie h}r the Scots, in ilieir parliaiaent, were
« sufficient came of war against them.
The said Earl having foTmerlir expressed the
liei^ht and rancuur of his mind towards his
majesty's subjects of the Scotish nnlton, vix,
the 10th da^ of October, in the ISlh year of his
inajestj's re^^n, he said, That iJie nation oF llie
Scots were rebels and traitara; and he being
then about to ciime In Ei^land, he then far-
ther said, That if It pleased his master, meaning;
his niHJestj, to send him back again, he would
root out of the said kingdom, meaning the said
kiugdara of Ireland, the Scutish nation both
root and branch, some lords and others, who
had taken the said oath in tbe preceiletit arti-
eie, onty excepted : Aiid the said Earl hath
tauaed divers of the ships and fioods of the
scots to be stayed, seized, and molested, to the
inieot to set on the said wnr,
uxi. That the snid Earl, shortly after his
Speeches mentioned in t)ie last precedent Arti-
cles, to wit, in tlie ISlh year of his majesty's
reign, came into this realm of Eo^nd, and
was niade Lord Lieutenant of Ird«nd, and con-
tinued his Government of that kingdom by a
deputy: at his aivival here, finding that his
majesty with much wisdom andguodness bad
composed the Troubles in the Nurlh, and had
a Pacification with his subjects of Scotland, he
kboured by ull means to procure his itiajAty to
break that PaciGcetion, mceiisin); his mnjesty
gainst tiis subjects of that kinRdom, and tlie
proceediiiRB of the parliament there. — And hav-
ing incited bis mnjesly to an otTrnsive war
against his subjecti ot Scotland by sea and
land ; and the pretext thereof to rai>e forces
for the maintenance of that war; be counselled
bis msjesty to call a parliament in England ;
yet the snid Elwl intende'l, that if ibe ssid pro-
ceedings of that pnriinment, should not be
such as would stand with tlie said Eail of
Siralford's mischievous de^i^ui, he would tlien
EroGure his majesty to break the same, and
y ways of force and power to raii-e mo-
nies upon tbe subjects of thn kingdom. —
And fi>r tbe en courage merit of his itiajesty to
hearken to his advice, be did before his majesty
and his privy -council, ihen sitting in council,
make lari;e deciiiration. That he would »erve
fais majesty in any other way, in case the par-
liament should not supply hiui.
XXII. That m the month of March, before
tlw begioniiig of the lait parliataent, tlw stud
Earl went into Ireland, and procnred the par-
lianieni of that kingdom to declare their assis-
tante in a War against tbe Scuts, and gave di<
rections fur the tiii>ing of an Army ihere, con-
sisting of t),000 foot, and 1,000 hone, iifMf for
the most pnft papists. Andconfederatinn with
one sir Geiiige KadcliSe; did, together with liim
the sjid sir Geor^, traitorously conspire to
employ the said army for the ruin and dtsiruc-
tionui'thc kingdom of England, nndof liis ma-
jesty's subjects, nnd of altering mid suliverting
of the fundamental Ions and eatablished govern-
ment uf this kingdom.
And sliiirtly after the snid Earl returned into
England, nnd to atindry persons dechired his
opinion to be, That bis inujesty shniild lirst try
llie Kirlinmeiit here ; and if tliat did not sup-
ply Iiim according to his occasions, he might
use then his Pri'Mgntive as he pleased, to levy
what he uerded ; and that he should be ac-
quiteii bntli of God and man, il he ii>ok
some other courses to supply Jiim self, thong h it
were against the wills of his suhjccts.
:ixin. That upon tbe l3th day of .April last
tbe Pnriinment of England met, and the Com-
mons House (then being the representative body
ofnlliliecommJIIsintbe kingdom) did, accord-
ing lu the trust reposed in ihem, enter into de-
bate and considetntioii of tbe great Grievances
of this kingdom, bnth in respect of Iteligion and
the public Lilwrty of the kiiigdnm; and bis
majesty relerring chiefly to the said earl of
Siratrurd Hod thearrhhiihop of Canterbury the
ordering and disposing of all matters concern-
ing the parliament; hi the said Eurl, with ths
ass. stance of the said Archbishop, did procure
hig majesty by nundry Speeches and Messages,
to urge the said Corantous House to enter into
sf>[De Itesolutioii for bis mijesly's Supply for
Riainieoonce of hit war against his subjects of
Scotland, before anycuur>e tikeo for the relief
of the ereatnnd pre^^siug Grievances wherewith
this kingdom was then afflicted. Whereupon n
demand was then made fiom his majesty of
twelve SnlMidies, for the release of Ship-money
only. And while the said Commons iben as-
senibled (with expression of great aU'rciion to
his majesty and bis service) were in debute and
consideration concerning some Supply, before
any resolution by them made; he the said Earl,
wiib the help and assistance of the said Arch-
bishop, did procure his mnjesty to dissnlrc the
said Parliament upon the 5ih day of iMny la^i.
And upon -the same day the said Earl did trea-
cberouslv, falsl^, and maliciously endeavour to
incence tiis maiesty against his luting and taitU-
ful subjects, who bad been members of the snid
house of commons, by telling his majesty they
had denied to supply him : And ut'terwards,
upon the same day, did traitorously and wickedly
counsel and advise his majesty to this (Q'ect,
viz. That having tried ibe nHeciinns of his peo-
ple, he was loose and absolved from all rules of
government, and ttiat lie was to do every thing
that power would admit; and ihat his majesty
liad tried all ways, and was refused, and should
be acquitted towards God and man ; and that
1899] STATETRIALS, IOChailmI. lOW.—TrUilqfthc-EarltifSintforJ, (HOO
ISO.OOOt. wlitch WH thcD in liie Mint, and be-
loDRtd to divers merchants, Mrangtrs, uid
others, tii lie seized on and staved lo hii ma-
jesty's use. And nhea diver* mercLanit of
London, OKnera of the uid bullion and luooej,
J his liouM lo let him undcrstaud l'
he ti^d ail arm^ in I teland, (pieaning the Army
•liuve-iueiiliniieH, cnn^i-Iinfi of Pupi^ls, his dc-
peiid^iiitt. as !'■ ^ifijreuid) wiiich tie miglit iin^Ioj
(u rciluce lliii lilii)(iloai.
xiJv. I li'it i'l ihe sEi'td month of May, hr,
the Siiiil Eirl, f.iisoy, traitorously, and niulici-
oiiiiy |iuLJisiird and dechired hetbrc other* of
his iii.ij'Sti'a privv-couiicil, that the Pailiuintnt
of I'liiglaiid ti:id fiir^^ikeii llie king; and that in
di-iiyinu to supply ihi' kins, they had given hint
adv:ini>^e lit rugiply hiinidf by other ways,
Aii.t NC'vtTiil ^itlier linies he did mnlicioualy,
tvirk<^dU', dnd t'akelt publish and declurf, Tliut
BiH'.iij tin- p-N'Immeiu b^d refused In Bu|lply hii>
niLiiu'iy HI die ordinury uiid usual way, Uie king
' ' "'le kingdom in such ways as
lie
>ii-l holil I
d thut
> suli'ei
■1 by llie frow;irdnesi
uiiHutifiihie>e iif tlie people. And having so
maliciously ilanilored llie said lateliougeoffom-
niixis, hi' dill, »iili the help and advice nf tbe
wud ari-liliisiii);,. i-f Lunterbury, and the lord
I'iiich, Inte l^ird-Keeper of the greal-senl of
£ii)>liiiid, cuum: til be printed and publi;tied in
his niMje^iy'ii nnniu a liilse and si-kHtlalous Book,
cnliiled. ' lli« luajesiy s Declaration of the
' rjuses t'lat innved iiai lo Cssolve the Insl
* ParhnTiicui,' full of bitter and maliciuui iuvec-
tives, and ful^e nnd aoandalous aspersions against
^xv. Tliut n.it lung after the dissolution of
the said Ihm Piirliaineiit (vix. in the inunths of
Hay and June) he, llie said Earl, did advise ilte
kini; to no on vigorously in levying tlie .Sliip-
' Jdoney, ainl did procure ilie sbciilTii of seveial
ciiunciM to be sent for, for not levying the ^hip-
' Mimey, divers of which weie ihreuteucd by
him ti>br kucdiii tlteStni^Clmrober; and after-
wards, by his advice, they were sued in llio
Star-Chamber for nut Itvyiii^ llif same ; and
divers of his majesty's luving subjects were bent
fnr and iiu prisoned, by his advice, fur that ntid
«ihc.T illrgul pnymcms.
And a jcreac Dian of KN),000/. was demand-
ed of the city of l^ndiin ; and the bird mnyor,
and shcritTs, and iilderuien of the said city ware
often sent fur, by his ailvite, to the Council-
Table, tn vne an account of their proceedings
ill niising of Ship-Muney, and rHrtliering of t1
Iahu; and were required to cerlity the naii
of ^uch iDliabitniits of the said cliy hs ucie
to lend : which tWy with much huuiiiiiy ref.
ing (o do, he the said Karl did use lliesc ii
the like siietdies, vii. That th»y deserved
lie put lo line and ransom ; and ihjt no sood
would ha d.iiie wilh tliein till un example vot
miuje ot' tliein, and iJiat ihey were laid by tli
heels, and sunc uf (lie ulilennen banged up.
>.xvt. That the !-aiit Karl by his ivicked coui
EfiN having brou<|lt Ms majesty '
Cliai
;, he did ii
tb uf July hiiit (tor the suppc
^leat t'lian^ts) counsel and iipjirnte two dan-
jlirou* and wicked prujects, *u,. To seiie upon
the lliillioii and the moni^-y iu the .Mini. And
lo imbuee bii mnjesiy's Coin with ihe
turts uf brass. — jiixd accordingly he procured
great mischief thnt course would produce hers
other paru,and what prejudice il would
the kii^doin, by di<crediiing the Mini,
and hindering (he iniporlatioo '>f UulhoD ; be,
the said Enj-I, toldUiem ihutibccity of Londoa
dealt undutifully and uDihankiiiliy w i<h liia ma-
jesty; aod tliHt tJic* were more ready lo help
the rebels tlian lo lielp bis majeity ; and that
if any hurt came to them, thi^y may ihauk tbeoi-
M'hes; and tlinl it was llie co«r>e of oiher
princes to make iHte of such monies to sen*
their occasions.
And when in the saiDc month of July ibeoF'
ticers of his maj^ty's Mint came to hirn, ami
eave hiai divers reasons against ibe iinbauDj
theuid raoney, he told ihein, I'liaitha French
kiuj; ilid use to send coniimisaries of burse wuh
cuminission ti> search into m'en's e«iaics, wid
lo peruse Dietr accounts, that su tbey bmj
know wlial to levy of tbera by furce, whieti
(hey did Bccordii>{;ly levy. Anu^nming lathe
lufd Codington, itien present, said. That ihs
was a point wortliy of his lardship's conEfdera-
tion : Meaning, ibis cuurse af the Frrncfa kiag
to raise Alonics by fore was a point trUnii cif
his lordship's consideraiion.
XVVK. That tu ur about the -nonth of An>.
last, he wni made Lieu ten ant- General of all his
maje^ly's ti>ices i«i the North, prepared asaiiut
(he Seals ; and being :ii York, ibil Ihen in the
month of September, by hit own nuthotity, and
wiihuul any lawful warraui, impose a Tax on
his majesty's subjects in lite cuunty of York of
S*/. per diem for maintenance of tvwy soldier
of the trained-bands of tliat county, which somi
of iiiouey he caused tu be levieit by force.
And to the ind to compel his inajeny's sob-
jects 6ui of I'ear and terror to yield to Uie pay-
ment of f*^ same, he did declare. Thai be
would commit them ihat refused the payment
thereof, and the soldiers should be satislied oat
nf tiieir ettarea ; and ihey that refused it were
in very little tielter conditiuu tfaan of higb-
xiviii. That in the monihs of September
and Ociober last, he the said Earl being e^rti-
lied of ihe Scotish nnny coming inio the king-
dohi, and lie ihc said Earl being Lievtenaiu-
General of liis majesty's army, he did not pro-
vide for ihe defence of the town of f Jewcaide,
OS he ought lo have done, but suSi'red the same
to be lost, that so ho might the more incense
ihr English against (he Scot*.
And fur the ^'oat wicked purpose, and out
of a malicious desire to eagage llie kingdom* of
England and Scoltind in a national and bloody
war, he did write to the Inrd Conway, ihegeue*
fal nf ihe horse, nnd under the said Earl's com-
mand. That he should d^ht n:th the ScoiisJi
nrmy at the passage over tlie Tine, whatsoerer
should lollow ; notwiUutnnduig that the Mid lord
1401]
STATE TRIAIS, IOChaumI. I0i0'.~/or High Tnaum.
■[1«»
*^ Conway had formerly by leiteis infbrmed the
^ Bud -farl, that his mnjvH^'n Aimy, Lheii under
'" -' his cODUnnnd, nus nut of tbrcs luflicieilt to eu-
' ** counter the Scot* ; by wliich advice of his he
'•*^ did, cnnirary to tlie duty of his place, betray
**^ h)i iBBJesty s amiy, :lien uniler his cowmaud,
' "* to appntelic dauber and ioH.
!" All and evny nliich wards, counsel^!, and
''-^ ^ actions ol'the saidLart of Strafibrd were spoken,
' ^ given, mid done by IJm, the said Karl, tr^iior-
- ously, and contrary tu his alleiiiaiire. to our
."' eBverei);n lord the king, and with oil intention
'~* end endeavour to nJienate and withdraw the
i' I hearts anil alTt^ons of llie Litig's liege people
''~ of all his realms from hi» majesty, anrt 10 &ec
>• division between them, and to ruin and destroy
ic. his m^esty, aud bis m^esty's teid kingdoms ;
lor which they do fuctber iiilftcacli him the said
Tliomas Earl of ijtrniibrd of Hi^-Treasun
I aftainst our sovereign locd the king, bis crown
t! niid dignity. And he, ihc said Earl of Straf-
■ ford, was lord deputy of Ireland, or lord lieu-
(eoant of Ireland, and lifUtenaDt-gencinl of the
-^ uimy there tmiier his niott eicelletit majetty,
1- and a sworn privy-counst'llur to his majesty for
Lis kingdoms both uf England and Ireland, and
lord presideut of tlie North, daring the time
'■ that all and every tlie crimes aud ounces, be-
1 fore set forth, were done and committed ; and
lie, tbe said Earl, was lieutenant-general ofliis
,- majesty's army in tbt North patu of England
during lift time that tbe crimes and offeaces,
in the $7lb and 9Bth Articles set forth, were
done and committed.
' ^NswEElo the Ti+enty-eight Special Articies.
Til tlw First Article, he saitb. He coitceites
that the Coinniissioii and Instructions dilfcr
not from those Ibrnierly granted, but refers tu
, them; andiliat such Alterations and Additions
ai were made, were (tiir aught be knowtth)
rattier fur the extilanatian, than for itv eniarg-
inK of the jurisdictiou : the imre wliereof was
left to the SecretBi^ of that Council, and to
ihc king's learned counsel, to be passed for the
^ood [^tlie king's service, and tbe public wel-
fare of tliat province. For tlie' legality of tlie
proceedings, diverseminent lawyers were joined
with tlie President, wlio, for the legal parts,
was by them 10 be directed. He diii nut ad-
vise or procure the Eidaraenient of the Cum-
tnission and instructions, and he believelh ni>-
thing haih been practised since, that was not
in furmer time* conuuned in tbrnier cowmis-
sioHS, under t^enerul wurds. He believelh sir
Conytrs I^rcy was lawfully lined for Misde-
meanor^ as a Justice of Peace; and hath
beard, he being in I'rclaiid, tlmt sir John Bour-
cher was fined lor sunie great abtise at the
king's being at York, going mio Scotland to be
crowned : to the Proceeduigs he refers himself.
lie denies that lie batlid one any thing liy that
Commissioa or Instructiuns, other than he coti-
ccivod heniigbt by virtue.tber«of lawfully do.
To the Second Article, He denieth thespeak-
irg of ihMe Waids : but saitif. That 301., 40/.,
IK mote, beii^ teiunicd as Usuei out of ilie
Eacheguer, against some thstliad companndcd
for Kn^hthopd for JOt. or 30i., (o as ilU Issues
far exceeded tiie Composition, and yet wotild
eeit time have b*eu incrcaseii; the said Eail
upon this occasion said. That dqii, they ni^i
sec, tbit the Little-finger uf tlia l^w was beo-
vier ilinn ihc King's Loins; which he spake to
nourish good afTectit-ns in them towards liis
n>ajesty, and not tn threaten or tertify any, a4
the Article supposed.
To the Third Article, be snith, Ireland is Dot
gnvemed by tbe same lawsihat this kingdom
IS, unless it be meant by the common laws ;
their customs, statutes, execution of marti^
laws, proceedings at cooDcil-buaid very much
differ : tlie woidt in tl>e Article were iiot spoke
to any such intent. He saith, Itnikht be 'fit
enough lor him tJ remember them oftfae great
obligation tliey had to the king and his proge-
nitors, that suffered them,, being a cooquered
nation, 10 (ojoy freedom and laws, as ibeir
own people of this Icingdom ; and it might be,
that upon tome such occasion be said to thos*
uf Dublio, That some of their Chntters were
void and nothing worth, and did not bind his
majesty Airtfaer than he pleased ; whicb he hiv
lieves to be true, havitig been fonneily so in-
formed by his majesty s learned cuunie) upoa
To the Fourth, be saitb. That tlie li^ and
ordinary proceedings at Council-Table art, and
time out of mind luivc been, by Pstitiun, An-
swers, Examination of Witnesses, as in other
courts of justice coocernipg British Pbuilaliims, ,
tbe Church, and cases hence recommended bj
llie king for the time being, and in .Appeals from
other courts there ; and the Council- Board bava
always punjslied Contempts to Orders there
made, to Ptoclnmatioiis, and Acts of State, bj
fine and Imprisonment. lie saitb, Tbaf it
mi^ be, he told the t.'arl of Cork, that h»
would imprison him if he disobeyed the Order*
of the Council-Table, and that he would not
have lawyers (iivpute or question those Orders,
and that ibey should bind ; but rcmembereih
not the con>pariion of acts of parliament : and
be hnih been so far frum tcirning the laws,
that he hath endeavoured to maintain them.
The Suit against the Earl in theCnsile-Chnmber
was concerning ike possessioiis of the'collegs
of YoujihHll, wo'lh 6 or 700J. which he hath
endeavoured in jtet, by causing of unlawful
oaths CO be taken, and rery undue means: tbe
matter proceeded to Examiiialinn and Publi-
cation of Witnesses; and after, upon the earl
ofCork's humble suit, and payment of 15.000^
to his majesty, and his acknowledgment of his
Misdemeiiniirs, ohmined a Pardon, and the Bill
and Proceedings were taken off the file: and
he remembers nut any suit for breach of any
Order made at Council-Table
To the Fifth, be saitb. The Deputies and
Generals of the Army hate abtays eiecuccd
martial law, which is necessary there j and tbe
Army, and the members thereof, have been
long time governed by printed Orders, accord*
ing to which, divGis, by jeuteuce of the council
1408] STATETRIALS. ISChailhI. lOiO.— Trial i^ Oit Earl tf Ar^ord. [14«
The £ul of KiltUre, for wx pcrfonniii; of
■n Award mmde b; kii^ James, and of an
Award made in punuauce tbcreof bjr tbe *aid
Eari of Straffiird, npoD a rdmnce from bi»
mqMtj, ou bj tb« Ufpuij and Council cob-
miUed; and a Letrer being uadaij obtauied,
he did not thercupan eDlari;,e -him: bat npOD
another leUCr, and uibmuikm u> the onlers, ai
by ihe kia§ wna directed, be was enlarged.
The iadj Uibbnts, and one Hoy l«r son,
havin| apon a Petiiion, Answer, EiamioatitM)
of Witneue*, and oibef Proceedings at Coiib-
cJ-Board, been found to hue tnmmitted fool
abuses by fraud and circuamncion, to bare
made a bergaiii with tbe peuboncr Hibbou,
for kndB of a ETcat valua, l(ir a small stun at
money; was ordered to deliver ap tho writing
no assurances being perfected, ot money paid;
and it is like he threatened her wiih commii-
inencirsbe obeyed not thiit order; but denieth
that the lands were after told to lir Bi^rt
Mcfedith to bis use, ot that, by hny order by
liimeelf made, any one ^alti been impriwaed
cnnceming ftwholds, but for debts aod per-
soiial things, as some have been used by all bii
of war, hare fbrmeTly been put tn iteath, as
well in the time of peace as war. The loni
MouDinorris bein(; a CRptoin of a company in
the Army, tor mutinous words aeaintt the said
£arl, general of that army, and upon two of
those nncietii Orders, was proceeded aj^ait
by a Cooncil of War, being the principal offi-
cers of the army, about twenty in number, and
by ibeni, upon clear Evidence, sentenced to
death: wherein the laid Earl was no judge,
but laboured to effectually with liia mmja^ty,
that he oblained the lord Mountnorris's pardon ;
wlio by that Sentence suffered no personal hurt
or dnmHge, save about two days imprisonment.
And as'to the other persons, he can make no
Answer thereunto, no particulars being de-
To the Siitb, he laith, The Suit bad de-
finded many yean in Cbancen; and the
iaiuEiff complaining of that delay, the said
£arl upon a Petition, (as in anch cases 4aih
been uiual) calliui; to him the then Muter of
the Rolls, ihe now Lord Chancellor, and the
Chief Justice of the Common Fleas, upon tlie
Proofs in the Chancery, decreed for die Plain-
tiff; to which he refers himself: and it may be
the lord Mounmorrii was thereupon put out of
his possession.^
To [he Seventh, he saith. His majetty being
tntitled to divert lands, upon an Inquisitioii
fbaod, Proclamation was made. That such as
claimed by patent should come in by a day,
and have their patents allowed, as if they had
been fouud in the luquisition ; and accordingly
divers were allowed, 'llie lord Dillon produced
his potent, which beiag queitiunable, he con-
tented, and desired that a Case might he
drawn ; which was drawn by counsel, and ar-
Kued, and tlie Judges delivered their opinions:
but the lard Dillon nor any other were bound
thereby, or put out of possession; but might
kave traversed the office; or olhernise l^ally
have proceeded, that case or opinion notwith-
standing.
To the Eighth, he tnlth, That upon sir John
Gifford't Petition to the king, hii majeity re-
ferred it to the deputy and council of Ireland,
where tlie matter proceeded legally to a Decree
•gainst the lord Loftiu ; anil upon his Appeal,
that Decree by his majesty and his council oi'
EoKland was confirmed : tn which Decree and
Order be refer* himself, believing the lord
Loftus was committed for disobeying that De-
cree, and for continuance in contempt com-
mitted close prisoner. He saith. That the lord
Lofloi having committed dirers Contempts, the
Council by warrant required him to appear at
the Board, and to bnus the grest seal with
him ; which order he disobeyed, md was shortly
after committed, and the great seal was deli-
vered up by his majesty's express command,
and.not ulberwite. And an Information was
exhibited in the Star-Chamher, ' fur grievous
OpprcMioDS done by the lord Loftus as Cban-
celior; whereof he was to far from j uniting,
at that he submitted, desiring to be an object
of hitm^etiy'snercy, ftpd not of hisjiutwe.
n like CI
To the Ninth, he saith, WarranU t
eSectt have been usually granted to iIk bishops
in Inland, in the times of all former depnlies;
but the Earl not satiated with the convenieticy
thereof, refused to give any such Warxaati in
general to the Bisliops as had been formerty
done: hut being informed that direti in the
diocese of Downe gave not fitting ot*edieacc,
he grnnled a Warrantto that bishop, whetetu
he referreth, which was the only wairant he
granted of that nature j and bearing (rf some
Complaints of the execuliuD thereof, be le-
cslled it.
To tlie Tenili, he saiih. The Imi Treasurer
Portland offered the Farm of the Customs fat
13,000/. per annum, in some particular species,
hat the earl nf Strafford advanced the same
Customs to 15,500/. per annum, and 8,000/.
Fine ; and by his majesty's command became a
Farmer at those Rates proponed, witlxrot addt-
liun to those Rates, at by the printed hooks
T Car. regis may' appear. lie dissuaded, the
advance of Rates lately propned by sir Ahia-
ham Dawes, so as it was declined : The Kates
of Hides and Wool are moderate, contidenlioa
being had of their true value, and of the
pbices whereto they are to be transported, and
of the ttatate made in the time of (|ueen Elii*-
beih, and there in force, prahibitiag the espon-
ation of Wool, unfess they pay to the crown
5t. the stone. The Tmde and Shipping of thai
kingdom are exceedingly increased.
To the Eleventh, he siith, Pip»«t«ve» were
prohibited in king Jama's time, and not ex-
ported but by licence /ram the Lord Treasorer
of England, or lord deputy of Ireland, who bad
6t. fi<£ per 1000, and his secretary 3t. W. far
the Licence : but to restrain that deatrnction
of timber, by command of hit majesty and
advice of his council for his revenue in Ireland,
fint SOi. than U, wm charged. Tb« mau|
1405]
STATE TRIAIS, l(JCH*«LB»r UiO.—Jbr H^h IVtiuon.
was pnid to bis mnjeity, who hath theretiirDbout
1,500J. per tnaum ; nnd liii lordship lost about
4 or bdnl. per nnnum, whirh Kn pifderasors
had fur such Licences. This is paid by the
transporter, not by tbe nutivej, vrhese comma-
ditj tiGferihtless appears by tbe Article to be
very much increased.
To tli« Twelfth, he with, The Subsidies there
mte aa inheritnnce in the cronrn by act of par-
liwroent ; 6d, was paid fur subsidy, end li. 6d.
for impoit upon every pound of Tobucco,
and farmed at 10 or SOl. per annum. The
Commons in parliament, 10 Car. regis, tindiiii;
the'revenue to be short ofthe eipence of that
kingdom !4,000i. per annum, petitioned those
Grants m^bt be applied to increase bis ma-
jesty's IteTenue, without callini; upon the sub-
ject but upon uivent occasions. Hcreiipnii,
upon itie ndvice of ibe Committee of tlie Re-
venue, and in consideration of a Proclajuatioa
tnade in England, sevefnl Proclnraations were
made, and this settled in a wuy, till it could be
confirmed by pnrliaoient ; for »hich purpose a
Bill is transmuted, ncciirtlin^ to the desire of
tbe onmmons, and the impost of Tobacco is lelt
to contractors fur 11 years, ut 6,000/, per
annum fur the first five years, and 10,000/. per
annu'U for the other six yenrt. And the Earl
hath lent money to fbrnurd the business, and
by. his majesty's alloivance is a partner ; but
Jiatli not OS yet, in two years lust past, had any
Accounts ihereof, or inaile benefit thereby,
lie knoweihof nb Whipping, or other punisii-
DU^t. The Farms of the Customs are better
than formerly 2,000/. per annum, fireBth pans
whereof is yearly paid unio his majesty ; the
prices of Tobacco exceed not Si. or ia. id. the
pound ; the settling; of that Revenue is accord-
ing to the Petition of the Commons; he hath
not raised or countenanced any Monopolies,
but opposed the same.
To Uie Thirteenth, he saith. He endeavoured
to advance tbe mannfaciure of IJncn rather
than of Woollen-Clot]], which might prejudice
that tntde berei he bought Flax-seed m ihe
Low-Counlries, and sold it at the s.-une rate
to such as desired it ; they making their cloths
not above a foot brond, and winding eight or
ten threads from several bottoms together ; (be
contrary was twined : their flax, formerly not
above a foot, became a yard in length : and
that soil is fit to bear il, and the people love
•ueh eaty works. He hath 4et up many looms,
made much doth, and sold it to {he loss of
•ome thousands of pixinds ; b^it when the state
law tbe natives would iwl change tbeir old
courses for new and better, the Proclamation
WM declined. Whnl he did wns tor the public
good, and had nothing from them that was not
liilly paid for.
To rhe Fourteenth, be saith. He refers to
tlio Oath and Proelamntion, which was set forth
by the said Earl and. Council of Slate there,
Bl the instance of the Fanners of ibe Customs,
to prevent the defrauding of the king's Duties,
witereof his majesty liad five eijibt parts. He
liCT«r beard any complaint of the Oath, or of
[140G
any that refiised to take it; and conceived it tii
be lawful, divers of the Council approving it,
beiog learned J ud|:e9 of the law, to whose judg-
ment for the legalitj he submitted, as well in
Itiat, as to ocller matters oFthe bite nature.
To tlie Fifteenth, He denietb » hat is .in the
Article objected ; but saith. That about the
year 1696, certain agents authorised in Ireland
were sent into England, and offered and agreed
to pay to his majesty 130,000/. in six years, lo.
wards tbe raaintenancc of his Army ; and a
like payment of 30,000/. per annum, was after
agreed, nnd continued for three years longer.
The Assessments were made, and it was shontr
after, by them and tlie lord Vaulkland, then
Deputy, agreed in Ireland, that the money
should not be charged upon record, but levied
by captains, by Paper-assignments, upon War-
rants from the Lord Deputy: and this course
wns held four ycnr» in the lord Faulkland'a -
lime, and the ibiir years wherein tbe lord Lofiu*
and the enrl of Cork were lords justices there;
and it held for the remaining year only, alter
tlie earl of Sinilford came thither. But the
earl of Cork having spared those towns, for the
benefit of himself and ten ants, during the time
of his lieing justice; the ear! of Straflbrrt ra-
duccd ths assessment to what it was made \rj
tlie turd F:iul!ilaud, and g!ive way to sir Wil-
liam Sr. Lieger; lord president of Monster,
should take the same arrearages, in sniistactioii
of n debt due unto him by hia majesty ; and
he is confident no force was used in letying
the same. It hath been usual to lay soldier*
to levy that coniributinn, to send soldiers tn
apprehend conlfmneis of Orders made at
Council -Board, and the like ; and when cut-
lans and rebels have been in Ihe woods, uo ooS
diers have in his lime beeo laid, but by the ad<
vice of the council lliere. Tonchingthe Castle-
Cumber,it is a parcel of tbe territory of Idough,
whereto the king was intilled by inquisition,
and the possession established in a legal way,
when the snid Earl was ia F.ngland ; and no
soldiers were sent, but only 19, at tbe intreaty
of Mr. Wanesford, fur the secnritv nfbishonse'i
and plantations aeaiiist rebels tNat then weh:
out, and burned and spoilcil houses iherea-
bnuts 1 and neither Iticliard B'ltler's, nor any
other family, were thence expelled by the said
earl from their estates.
To the Sixteenth, be saith. There was sucli a
Proposition, which wn« jufit, in prevent clamo-
rous complaints here, which there might he re-
dressed ; but conceives, that by the laws there,
and the Articles known since, (bj the name of
the Articles of Grace, made about 14 years
since) none ought to depart that kiogdom with-
out Licence. Thercupou, by the advice of tbe
State, the Proclamations were set tbrih, but
not with such intent as in the article. — He de-
nied licence only to three, the earl of Cork,
tbe lord Mountiiorris, and sir Frederic Hamil-
ton : to the two former, in regatd of criminal
suits then against them in the Casile-Cham-
ber; to the other, by special command from
hi* majesty. But lo Moa ai tir Frederic said
1407] STATE TRULS, iBCWimLMl. l(U0.~7Htt ^ the Earl <fSlrqgbrd, [l«»
he would cotnpl&iD of the F^rl, he oiade wit
to III] majestj tbrnl eir Frerftrjc might comp
oTer ; whicti was pranced. He conceiie* sucli
restraint to be aecefjirj, and it' that be uu[
cODtiiiucd, it oiti prove ore>il conKifuence lo
that kingdom.— Parry »»» ijneMinned at the
Council- Board for Miidemcanon, and, to avoid
Sentence, secreilj went oat of the kingdom ;
nnd Bt hi] reium, fur thut and other ufience^,
was fined and impriKiDed ; to tite 5ientence
thnrofti^ refers, nnd knows of tin other liiat
wereimpnsiiiied.is b» the Article isrlini^ed.
Tn tlte (ieteuteenlh, he ^aitll, It is like lie
mifht iXy, (fiir the lietter encourageruCftt of ibo
OBicers and SiddTcTsaf ihculd liiali Artnv, in
dischai^ ot' thrir aevenit duties) that his ma-
j«(]r KM so well SHti^ticd in the iiaji anil pains
thet taoL in osiii); nnd prac'ising of thrir arm'
that, ia (hat )>aiut, he nould set tbein gs a ^i
tern to be imitated : and cniiceim it «oul<
not be ill if thejr were ao ; ihe)>*beine, in th
opiaion of those that have seen ihcm exeiciM
very able and eipert soldiers. He spake not
otiier wards, or to utiier purpose.
To the £ii;hteeiith, lie sHiili, When the earl
of Cork una one of the Lurits Juitice^, he
ctizcd snme huusest in Dublin, |!rciendii<g ihey
l>elou);';d 1(1 Jesuits and Friars, wiiti->ul tt^al
procec'lini;] ; which Upon suits pMsccuied at
Council-Buui'il, ntre, according to
restored to the owners ; but how «i
ployed, the Earl of SiraETurd knowtth
cncleavoured the utmoil he couM to i
that seizure. Tnuchiog the 8,000 men, besaiih,
Tliej ivere raincj accurding to the king's war-
rant, and that the said £arl left the core
titereorti) the earl nf Urmond and others ; and
what number are Protestants, what papiitii, he
knowelh not, hut lictit.'>'etji snch ■ body cuinoi
be there raited, without many papist): the
greatest number of the cnptaids and officers
nre ProtMtaiiti, chosen by the said Eari. Tlie
thousand men i*ere dr.iuQ out of the old, to
make officers for ihe tie\y Army ; and believelh
the thousand put to tlie old Anuy are Protes-
tants, in rc^ird, by his ixpress order, no
Papist is to be n'luiiited rhere a cfflumon sol-
<licr. He nei'cr prefcrred any captaiu, lieiite-
Dant, or ensii:n,ta be of that Army that vtai a
Pnpiat, and cottceiTes they are duly paid ; and
believes those newly raised exercise relif^inn no
«thenvi»e thai) hm practised before the Kari'a
coniine^hither. He was a Commissioner to com-
pound with the llecusants for their Fnrieiturei,
and endeavoured to lie infomed of the utmost
value i>f their Eilales: in lour years he broDgfal
that Kdi'Cnue from 2,300/. to bitweeii 11 and
1<;,000/. per annum, more than everwus raised
formerly in so short alime; by nhich fiiithful
tieiiliui^ for his majeity, he procured the liard
n of the Itecusants thr,>ughoi
tlieki
ie Compositional he liulli
paid near lOO.OOUi. into the F.xchcqurr ; and
they had no other PrivJleies than what were
eierciied in the Commission, nnd in fnrmci'
like Commissions, and as are in (he present
o th« I«rd Trcuurer, awt etliers.
To theNioeieenth,he taith, TbeUitsDBMMt
was twelve months, when the F-^™*- aad
Scotch Uy in the fields near Berwick, the £»1
■ml Council of Ireland hiring a geoeral noiida
thereof, were in frat that the Scots in UlMer
(being almoM 100,000 in number) m^bt be
drawn to side with the Covenanters i and
■dvisiDEbowlo secure tliat kingdom; tlie prio-
cipal of the nation of .Scotland, living jn Ire-
land, came to Dublin, and petilioned, that tbcy
aighi have an Oath whereby tliey inifht give
testimony of future obedience to bis majeNy.
Wnereupiin an Oach was by the adiice uf ttii
Council uf State t'l.ime'l, and chearfully taken
by [tiuse Scolcli ^tntlenien, and generally bj
ail the nation in Irebud, ns tIte Earl concav^
lo their advantage, and ihesatitf^ictjon of others.
He believes that some were seotenced ior tr-
fuiing it, but nunc were oibcrwise exiled. Tbe
£art, in.his \'otej mid, Hiat he would eodea-
vuur that hU of that nstioo should take Unl
Odtb, nr Icate the kingdom. All which was
done by hit majesty's direction and approh^
tilin : And it ivas wtt cnntrived lo the intents
tif the Article charged, hut to prment tbeir
adhering lo the Coteoanters tlien in openanm,
and nol cwinrnin^ the Ceremony or govan-
ment oflheChuiih.
To the TuL'iilieth be saith. That in the year
1638, tlie Earl was in Ireland, when prepais-
weremnde fiv
the nobility of this kingdom. In the year
1^39, • General wiu nppoiuled, nnd an Army
drawn to the 6eld, and encamped near Ber*
wick ; whereby it appeara be was not acquaioi'
ed that ihe Article <.f Pacilicniiau liad been
hrokcu on both sides, and so ilislempeved.tbu
it was held lit an army in Kn|>land should be
raised to suppress tlie CovciiaiUen, if the
business could not with honour and salety
be otherwise tompoted. The said Earl hoia-
hly advised his majesly lo rail a ParliaiDeDt
and used many muiivts iliereunt". After the
Parlianient was ciilleJ, and before the «t-
ting thereof, ten of the lords, and other uf the
Council for foreign nfTairs being asseoibltd, hii
majesty then present, an honourable person re-
tated the Covennntprs 'leniMlds. It nas ibtn
voted by all, Th:it tbcy were such as uii^.t aul
in honour and safely be condescended unio by
liii majesty; and if t!iRy could not be otherwise
reduced, bis majesty must be couslrajned la
hriiu; them to it by force. The like Itesoluiiaa
was voted after at tlie Council-Table by tweaif
of the council. Wiiereupon hb majisty >p<
pointed a Council of War; and it was bdd
necessary to burrow 30O,0U(J/. u]>wi good skv
rity, till the !:iupplje] by the I'arliiuiieni might
come in. He never said ilic Scotch n.(tioo
Hcre Kebcis, biitwasever persoaded (hat many
of them were most loyal sobjecta. — Those that
raised amis, niien lli^y »ere»t such a distaaca
frinn his mnjef-ty, be minht any they were im
lvs< than Rebels and Trai'ors! Bv Warrant
from the Lord Admiral he c^iused Jivers'ship
anil goods to be seized, but nut with an intetil
to set 00 Lhe war, but, oi tau«i) ■> to bin laj,
14M]
STATE TItrAtS, lOCfiARLEsI. ]GiO.— for HJsh7V«am. £141(1
know if his majesty would not take le«s tliai
M his majesty would
M\ dse, in anyolhcr
to bring atl to ffair accommodtirioni nirliout
expence of blood.
To the Twenty-first, he aaith, Tlie Pflcifibn-
tion w«s broken before lie cnuie over, m i:i
the Amwer to (he former Article: he moTcd
liis msjealy fur n parliaincnt in KngUnd, but
not withauch intent as In the Article, biit out
of Q desire Co liave settlt.fl n right uoderstand-
ing between the king and bis people. It may
besard, (rboiigh lie remembr-re-li It not) Tliat iT
the parliament would not supply his mnje>lv,
he would serve his maiesty In any other lawful
why; being wtU assured till
nnt emjdoy hiin, nor any mi
bind.
To tlie Twenty-second, he saith, According
to bismajestr's Instructions, he ifid'set forth lo
the Parliane'ntorlKlaud ihe State of the Af-
fairs, as ihey then ttood ; and they freely giive
ibur Subsid'ies, as an acknoivtcdgincnt of his
gl>Odness and liappy gui-ernment, ns by tUcact
and remon«nuice appeare in print. He by his
majesty's direction, then gate order for tlie
raising of 8,000 lAen, who still rcntuin in tbc
Lin^s pay, and ivere scot into Ulster to secure
those part!, or to land iti Scotland, (o divert
the earl of Argyle, in case lie joined with the
Coirenatiters iinnv against the king. But it
wM mentioned in the king's Letter, 2 Mnrtii
1G39, he had purpoaely pven out, Tlist they
should join with the king's arniy at Bcrwiek,
lo colour other designs: uut the true cause of
their levying was made known to be as afore-
said unto tbe earl of Ormond, sir John Bar-
lace, aud the niartjuis of Hamilton, and the earl
of Northniiiberiand, at the time of the writing
the Letter. And bedenirs the Words charged
In the Articles, or any other vrards to such in-
tent and purpo<e.
To the Twenty-third, be saith. The matters
iif tbe Pailiantenl were no otherwise referred
to liiin than to tbe rest ofthe Council s That
coming sick from Ireland about ten days after
the Parliitinent were set, and 'after the IVeaty
with the earl ofDuorennlliieandlord Lonrden,
Scotch CommisnoDers, was broken off, and the
army preparing, and the parliament not sup-
plyiiig monies as his innjesty desired, his ma-
jesty advised what nilglii move them lo prefer
his supply. In debate whereof, he humbly ad-
vised ills majesty, by a Message to the bouse,
to lay down Sliip-money aird promise never to
demand it, and give way to reverse the Judg-
ment by a Writ of Error in parliament, and to
promise a Redress of Grievaocei when they
should be prepared. And secondly, Timt they
-whiild presently afTee upon such Sapply as
should maintain his Army for reducing ihe
Scots to their obedience, wherein their safety
and bis honour was concerned. His ma-
jesty assented ccmditicnally, thiit be might have
twelve subsidies : The Earl bewught him that
it fnisht not pass as a condition, bnl to relin-
qalsli Ship-Money, and put himself npnn tiiejr'
sJcctions ; and ' drew op the Mes6a!;e in writ-
ing, and diilivered iflo Mr. Secretaiy Vane, to
delirertotbeHoute'gfCommgpr HtdtHred
vol. lU.
His majesty answered. He feared less
wiiiilJ not serve his occasions. The earl of
Str.iltbrd besought bis majesty to accept of '
eight. So hi) majesty asseiiiMl, and desireif
-Mr. Secretan lo signily so much, us occ^ision
should be oHered : But whether he did so or
not, the said Earl knoweth not. Tlie House of
Cttiiiiiions bdng in dt-bale two diiyq, and mtt
resolving, his majesty nhimt the 5tli of May
last called n Conncil .it T o'clock in the inom-
ing: The baid Earl bL'i.^!: sick, came lale, and'
ma told, OS be rcmein beret h, bj the earl of
Berkshire, the king had declared tns resolution'
to disvjive tlie parliament. The earl uf Straf-
fonl besought his majesty to hejr ihe advice of -
his Council, and lirst iil' thu^e that (vere mem-
bers uf ihe lioii:C of I'oniiiL'ins, by whom tb*'
rest mieht tbe lic'lier be euided. Mr. Secre-
tary Windchank said, lie ftarerf the house'
irould first be austveied of tlieir Grievances,
and voted lor a breach uf li.e patliamci.t.
Wr. Seircury Vane, in oppO'ile terms, said,
Tlmt iherv was no hope that ihey would givtf'
the king a penny, and thcreibre Hbsolntely
voted for a breach. And the earl of Stmnbtd
conceii-ing his mnjejty's pliasure lo'h^ve ac-
cepted ei^'i snbudieshad beCiidelivereillutW
bouse of commons by Mr. ^Stcrciary X'anc, did
in his turn deliver liis Vote for breach of tlia
parliameat, which olheruise Ite would not have
done, it bemg contrary to wtiat he resolved
w lien lie came thither; aud tlie like opinion:
was delivered by the rest' of the lords, being
about tvienty, except [ho or ihree at the most.
The Parliament being dissolved, bis majesty'
desired Advice of his Council bow Money might
be raised, nflirming that ilie Scotch army waa'
ready to enter into the kingdom -. Tlie said
Earl, in presence of others in the Council, de-
livered his opinion. That in a case of absolute
and unavoidable necessity, which neither would
nor could be prevenied by ordinary remedies'
provided by the laws, nor all his majesty's other
means sufllcicnc to defend the commonwealth,
himself, or their lives and estates from an en*-
my, without force of arms, either actually en- '_
tered, or daily expected to Invade the reilra ;-
he conceived ibxit his majesty was absolved
from ordinary rules, and might ose (in a mode-
rale way, as the necessity of tbe cause would
permit) all ways and means for defence of him-
self and kingdom ; for that lie concelied In
soch extremity, ' Salus Populi' was ' Suprenia
' Lex,' provided it were not cobniriibh', nor
any thing demanded employed lo other use,
nor drawn into example, when la^v mid justice
might lake place : and that when peace was'
settled, reparation was to be given i.i particu-
lar men, otherwise it would ne unjust, lliis'
was not ofljciously declared, but m conncil,
forced by the duty of the oaih of a counsoUor,
which K, Tliai lie shall in all things to bo mov-
ed, treated, aud debated in council, fniihfully'
and truly duclare his mind audopiniod iiccurd-
.ng to Ills heiirt and contc'ence: Which Oath
:he' said £aH tookj and liumbly ' prayt thalt
4x
1411] STATETRIALS, 16Cha>le«L lolO-^Trialt^lkeEailefStr^ord, {UU
lardships co'istdeiati lu thereof. He dcnjn tlie
Words-ill tli« Article, or anj wordj tu ibc in-
Uftt llierrby eipte*icd.
To the Tn'^nly-lourlh, he saiib, lie (li^licer-
cd hit opiniiiii niiti uich cautions and mrric-
tioD*, OS ill [lie AiiaHcr Co ilie preceileiit Aiti-
clt ; uid is t^ell usured his mscourse at all
limes bath been wiihout ill intemiiiiit to eitht-r
of the bouses of patliniDenl, Khich l^e eier diil
Mid shall speak or»'ilh oil reverence. lie de-
nies th»t be icnevr of ihe publisl.iii); or pnatin^
of tbe It:ioL, or n lio cmi-tiil it tu be pnnlMl ur
Eublishcd; fur st tb:it linMi be was sick in liii
ed, mure like to die tliaii lo lire.
To the Tweutv-fifib, be saith, Ship-SIooej
was Iciicd, Biid udjudijed toAie due, betore bis
cnmiug oier. }<lieiiirs were llit'n called up as
befvre, and not oihervrise. If any wei-e sued
in Slar-Cliamber, it n>a!i without aiiir puticular
elide. ivuar uf hb. It appearing at Ibe Boanl
that the mayor nnd slieriffs ol London had
been slow in colteciiii|> Shij^Money, he siutli.
They w«re but luiuisierial, aud ought to eiact,
•nd not dbpule the king's writs ; oud that if
thrauj;h tbrir reiniMinf^i the king- should be
im able to pn>i idc for ibe puUic safety, when
any foreign nniiy was ready to enter ibe king-
iloiD, iliey might dcsertf to be lined and ran-
Mtmed 1 «liich he epukr mote to hasten tliecn,
than of purpose to uilvi>o any such prosecu-
liiin. liut dciiiea the uibir Wordi, being, un-
fier favour, a.^ch ci|<[esiions ah he is nut accut-
tomedriiiilu.
To ilie Twenty-sixth, he suitli. He sdvised
not eilbcr of tlio^e Projccis, hiing then licL in
lieil ; But it beiiii: delisted nt the Couucil-
Talile ullether il M< iv hi'iler for tlic king tu
raise Gobi and Silier, or ciiu base Muni-y, be,
liir the rea-ons ibcii i;iven, delivered liis ojiiuimi
fur the latter. Siiii'Iry merclmnts adventureii
cumin;; to his Imhi^i', desired liim to nuive his
nii^esty, then at Odliuiids, lo release the bul-
lion, or tuoney: lie told them be knew of no
such thjiig. and nuuldniit mcd rile with it; Uar
would liLj lie;illii permit him to f,a ahroad : and
•aid, That if by tlnir deii> iii); ibe Lini; iu tuch
a public danger the loan of 100,000/. upon
good s('i;urity, the king wire coiiftimi'iicd, for
the prCKervBtion uf the bud, to stay the bul-
Ibo, they might ilnnik thF!ii!>elves ; and the
city receiring an great a benefit by reaiditie
amongU ihL-m, iliey inadL> hut un liiilhankfui
Bcknowledgment in iiicli a itrait, to refill the
loan o[ tl»t buni. Tlic oScei-;^ of the Mint
came ti the Council- Board, end tbo F.nrl ilrirti
stiewed a Letter he receircd from (he earl of
Leicester, wherein was related, Tiiai Uie cardi-
nal bad appointed commissionei's to go into
■lie uurcluuita houses nt faris, to peruse iheir
ahop-biiokt and ocmnipts, nnd cess e^ery man
according to bis ability, towards the (laymtiit
of tlie kiug'a "rmy ; and then said, Tliatituas
hut just for us here in Eu^laiid lo bless God
for l«ing uiidcr a king wliich could ij^l think
upon such a [Tissiug upon the people. Biit
tb« Words in the .Article, or words to noy such
iiitant, he did no; t|ieak; and caauut tuttici-
enlly bentoan himself (o have been in all hri
warns so ill underload, or so antnitT repoMd
■s he hatb been.
To tbe TKenlj-fcrenth, be saitli. He pa-
luajed the g€ntiy of ibul couniy tu allvw the
Trained-Bands a month > pay ; wliich tbe*
yielded, and bis majeslT gnciously accepiu.
U was by Council of \^'ar, his majestT being
toand ufsir William Pennya
Danby. It was assented uniu by bb nujctty,
and the gtent council uf peera iben assembled,
Thnt those spared should contribute ; mad iha
said Eari was commanded by them to see ii
done. Which was done accordiuglf fay ^^'u'-
ranls from bim, and frnm bis Dep<ily-Licule~
nants, which was much Itss charge to tbe coon-
lies than otherwise. And deuie» the utfacr
particular in the Article mentioned.
To ihc TwenlT-ei|Lliih, he saith. He »b«
lieu I enant' general to ibe earl of Konhumbet-
land, about tbe SllU of Au£nst,of tO or 13,000
foot, and 2,000 hoiss, teiltg at Newcastle,
under ihe command of Ibe lord Cuiiaay aod
sir Jacob Asllev, and tlie rest of ibe army at
York. Tbe snid Earl went from London u a
the ^ih uf August, nonviihitanding bis es^-
trenie ueukness, and came to York. And
haviuq received a I.ctt(r from ur JaC'ib Asdty
that Newcastle »as I'irtilied, anJ that iluy
must he mfamous beasts to luse it, and that it
was fully secund ; and being acquainted widi
several Diipatclics sent by Itlr. Seen tar j Vane,
by bis majesty's directions, to tlie lord Coo-
lyay, central of tbe horse, to oppose the par-
sage of ihe Scots over the river Tyue, the cue
dtited 33 Aug., the utlicr 23 Aug., another '.'1
Ati^., ano:htr 26 Aug., thesiibstpiiceof nbich
Lellvts arepaiticularlj mentiuned in ilie An-
KHo. to thia Article: end tu the same Letters
the Htid Earl referreth himself.
l l.i; said Earl, upon siglit of this nnd sir Ja-
cob .'^stley'i letter, had reason lo Uelieic that
nil filline preparation was made ; aud lien nn-
diTit^inJing that if llie Scutish Anitv thoold
]ia:s ihenver, not only Nencustle, uliO'-tii.eT
uiifuitil'iL'd on the south part, would be l»st,
but iLl- said army of 11,000 foot and 2,000
lidrsc ciidaii|;ercd ; and hearing tint the .'^ratiili
df.ir
I of liciuals.
kooidiu^ ihe.advantafc thct waMu opp>>sing
O.e passage of suci I a river : Hereupon ilic said
V.^r], by a Letter duted ihe '.'7tb of Aui;u>l,
advised tbe lord Conway, with nil llie horse,
and nt least 0,000 foot, and ad tlie cannon, tu
uiiii'cli and f'glil n ilh lliom upon (he passage of
the river ; At wliich time tlie said Earl had uu
charge of the army. But the truth is, thelonl
CouH'.iy having not with him nil the bur^, aud
ni>t above 1,200 foot, alirl only some |art of
the cunnon. nus in a of^ture to fi^ht I'oi the
pnsin^e before the said Idler of advice caane,
which be received not half sA hour before tbe
(ijiht bejan, and proceeded arconJing lo his
airl his majesty's said general
d uf^rw.~rd*, ihu a, abuut ikc
otni judgment
1413]
' STATE TKIAIS, IBChablesI. l6W.— for High Tretuon.
[HH
30ch of August; and not l^^rare, the snid Enrl
took upon him tlie clitirge of ihe Annj at Dm
tingtoQ, and brouslit it to York to b'e supplied
nith Dec«s^riei tout the; wniited, and purpos-
ed to have staid wlier« tlicj ivere quiiitercd.
But bearing from ini'ny haiiHi tliat tliere was a
purpose to (jiiestinn him ni parliament, and his
inujesty having given him liber^ of stnying
there, or coTuinB away, lie left the charge of
the army with the lord Coiinay, and ollief of-
iicrri, as lits majesty had diri^cted, and came
to Loudon on Moiiduy the t>ih ; and the 11th
of November was put under r<-straint, and so
batli ever since remained. And soith. That
the town of Newcastle was no ivaj under his
care. And as to other matKrs, nliereto by
taw he ought to answer, and hath not ansner-
eil, lie saitii, He is not guilty of tlicm, or any
of them, in such ntniiner and fttrin n* in tile
said Article is ex)iie-!icd; and liumfilv4>rLiyeth
n convenient time foriuakiup hisProoftjnirdro
Jusciry »iid maintain bis actions ill lrel:ind by
i'ght of his majesty's Warrants, Records, anil
witnesses in that kingdom; and that if any
mistake be in hii Ansuer, it may be ainendc>l,
And this the said Enrl lioneth, thai, upon
equal construction of bis words and actions, he
ahall appear free "from any great and beiiious
offences ivhereivith he is chir[;ed : And hon-
socver it shall please God to dispos* of him, he
fhal! ever pray, that by their lordships great
wisdom and prudence, the atFectiqus of his
majesty, and duly of his subjects, may this
parliament be so surely knit togeiher, as niay
(ly God's bles>iiig lastingly tend to the pros-
perity iind fiouriihiiig estate both of king and
THETntAL*
The nUce appointed fur the Trinl was the
great Ilnll in Wesliniiisler, where ihere wa^ a
■" Much time," says lord Clarendon, " was
spent in consideration of the nienner of tbt
tri.-it; for iliey could find no precedent would
fit their case: Wlrether it should be in the
hqnse of peers ? wliichriiom was thought loo
little, for the accusers, ivitnesses, judgei, and
spectators: Who should prosfcute? Whether
mentben chosen of the commons, or the king's
muiicil i Whether the bishops, which were 34
in number, and like to be too tender-hearted in
matter of blood, and so t-ithcr to convert many
or increase a dissenting party too much, should
have voices in the trial ! WheiliBr those vrho
had been created peers since the accusation
Iras carried up, stuxiM be admitted to he
judges? And lastly, Whether the Commoners
who were to be present at the trial, sliould sit
uncovered ! and, vrliether any members of llie
hou^e of conimonii should be examined at the
trial on the behalf of the Earl t who had sent a
list of names,- and desired nn order m that
purpose. — After mii^ debate it was agreed,
liiat the Trid should be iti Westminster- hall,
where seals ihoold be built, for Ihe reception
of the whole House of Commons, which toge-
Hier with the Speaker ihvtild be preaent :
. lb rune fretted for thelking,on earh side thef^of
I a cubinrt enclosed about with boards, uud be- '
fore i< ilti a terras. Sefore ihai were ihe seats
for the Ijirds of the upper house, and sacks of
wool fur the Judges; before ibem, ini ^tage*
ofse.its, extending farther than the midst of
thi' Hull, fur the gentlemen of the house of
commons i at the end of all was a dtsk closed
'about, ;ind set apart for the Lord Lieuienunt
and his counsel.
March 59.
Monday morning about seven nf I hr clock he
came finin t lie Tower, accompimitd with sii
barges, ivhireinn ere 100 soldier5 of ilie 'loner,
alt with partizaiis, for bis guard, and SO pair of
oat*. At bis laiiiling al Westniintier, there he
was attended with 200 pf the Tr<tined-)lands;
and went guarded by tb»m, into the Hull.
The L-ntrie* at Whiie-hall, Kins-^ti«oi, and
WcsiniiusiiT, nere |^iiiTd''il by the coiiElnbles
and ivatchmeii, from lour iif ihe clock in tha
morning, to keep luay all baiunnd idlefwrsons.
The king, quefii, tuid prince, came to tlie
house about nine of the cluck, but kept thcm-
stlies private wiiliiu their cluteis, only the
I'linre came out once or t"ice to the Ctiilh of
State ; so tlint the king s:iw and heard nil that
patsed, but wat seen of noiif. Some give tlie
Reason 'of tliis, from the received practice of
Enulandin such cases: others siy, that ihtt
lorJs did intreqt the liine eitlier to be absent,
or to be there ptiviitrly, Itht [iretensions might .
be made hcrcBftrr, that t,i« bcbig there was
eiilier to threaten, or some otherivi.-c tu inter-
rupt thecouree of justice- a tliird sort. That
(he king was not wilhiig to be accessary to tha
Process till it came to his part, but rather cliose
tu be present, tliat be might note ami under-
stand wlini Tioleiice, rigour, or injustice hnp-
for ihey iben tbiesaw, ttiat iliey might be put
to another kind of proceetliiii; llinn iltai iKey
preiendcd ; and, thoi^ti with much ado, tliey
consented to sit iincovered, lest sucli a little
circumstance mi^ht disturb tlie wliole design.
— For ihe prosecution, they liad no mind to
trust the kind's council; who neither knew
their secret evidence, nor being informed, were
like to apply and pres> it so rigorously as the
business would require : and tlierefnre, tliey
appoiitted that Committee which hod prqjared
the Charge, tu c^'ve in the Evidence, and* in the
name of all the Commons of Knghiiid, to prow-
cute the Impeachment. — For the Bishops; after
many bitter iiircctives ; and rcmemberingltie
Aulls of paiticulnr persons; and the canons
which seemed to iavolve the whole body ; with
sharpness and threats: They took the case to
l<e so clear upon an old canon (the only one
they acknowledged for Ortho<tox) thai ' Cleri<
' cus non debet interCE'e Eniiguioi;' that thej
were contetit ' to lefvr that to tlie bouse of
' peers, as proper only for their determination.'
And this they did, n*t upon a>-y conGdenc*
they had in the msiter iUel f, what; rer law, nr
reatoniorcanon they preiei' ted; orin ilieloril*(
H15] ETATETKLVLS, leCnARLEsl. l6iO.~yr>ffl i^ tit ^art <if Strafford, [!«$
When the Lieutenant enteicd (Le Hall, Mr. Mai Hell, whether rbe an ibauld he cir-
ibe pniur of the UaU (whose olficeit is) anketl ricd befurc him or no? WLo did uisner, Tloi
^le major part of wliom, nlien nny diirwtuce
of opiiiiun was, alvisvs tlisstiitcd from their tie-
signs: butihnl tliejr liada trick of duing their
amongst tlie bish<)ps, who had promised tliem
MBsunabl^ to fre? tiieiu of lliat irouhlc— I hej
nould not trust their lordships o.mi iiicUnntiotis
with iheotiiirr point, of tlie new baronsj which
they knew wouJdbe cuotiorcrted ; but in plain
tenns dfin.iiided, ' ihnt no |ie«rs, cre^:ed since
' thcdnir upon whicli liie ciiil of Strnflbrd was
' ifnpeacliijil uf Uigh Treason, because they
' were invulted ns Commoners in the making
' thntarcusiLtinn.sIioukl^it :i>ij(id):es iitliistrinl-'
" For tlif KHrl*B demnnrl, ' of on order to
' exnmiiie siiiiic meinhers on liis hc^lialf, upon
' luolters of fact, nt his trial;' afteralongde-
bate,thp)r Irft it only in the powerof the per-
sons iliimselves who tvfre uoniinnted, lu be
exaniiiiL<d if tl'iiv would, not without tome
smart animndvcrsioiis, tliat thi'y stioiild lake
heed what iJwy did, and refused to enjoin them;
thoufih the same hail bee[i done at tlicir dctirp,
for the lords of ilie council : hitt that was aitainst
tlte Earl, and so the less lii be considered.
" The Lords, in the abseuce of the Lord
Keeper, who iv.is very sick, made choice of tJie
carl of Arundel to preside and go<«rn t lie Court ;
beioji a person notoriously disaOecied to the earl
of Stratford. And I'ur tlic great busi'ie^ oflbe
Bishops, the; were saveil the labour of giviiig
any rule, wluch it may be would have troubled
thein, by ihe bishnp of }l.lncoln's atcmding up,
and moving, on the bt-hulf of biuiself, and his
brethren, ' ihat liicy luight be excused fruro
' Itt'iug prcseot iit the Trial, being eccleaiusti-
■ cnl perions, iiud so not to hnve their huuds
< in blood; and such other reasons, as, when
' they arc examined, will nut be fti'ind of tery
' great weight,'— Tlie example of the Dbbops,
prevailed with some lords, who had been
created hluce tike Accus;ition, to qui) their riuht
of judging ; and amongst tliem, the lord Little-
ton, who liud been made-a baron upon the de-
sire of tliecutl ufStralfurd, tor tliut only reason,
that he professed, 'If he were a peer, ho
' wriuld, niid injeeft fac could, tio hiro notable
j"^i .
ibc Accusation was first brought up : but ifaey
i\ho insisted upon their right, as the lord Sey-
maur, and olhcn, and demanded the judg-
ment of the hnnse, nere no more disliirhed,
t>ui exercised the same power to the «iid, as
any of the other lords did ; nad so, no doubt,
might tlie BIshojji too, if they would : for,
though there might be some reason for their ab-
sence, when tlic TrinI was according to law,
bcliire and by bis peers only; yet, when I hut
.Tud[;ment was waved, and a Bill of AtLimder
1'roui.ht a^iiiit lii.n, iheir votes in that Bill
wpre ns n< reasary aud essential, as of any other
uf the lonia, Aiii\ it may be, their un-t^nson-
pbie, lohmrtry, unjust quitting it then, made
many men less solicitous for the defence oflheir
right afterwards.
" On Monday, the 33Qd of March, the Eail
ofStralTord whs brought to the bar in West-
minster-half; the lords siitinz io the midille <^
the Hal) in their rol-es; aud the commooen,
aud some stmngen of ({iinlity, HJth theScutiiib
commissioners, and the commiltee of Ireland,
on either side; there being a close box made
at one end, at a very convenient distance lor
hearing, in iTbldi the king and queen sate VD-
taken notii% of: his majesty, out of kiudnest
and curiosity, desiring to hear nil that could be
alledg^d : uf which, 1 believe, be aflerscids
repented himself ; whtn his having been fue-
scnt at the trial, was alledged and urgeit to
him, as an argument for ihe passing the Bill ul
Attainder."
The (bUowingareMr.Laing'srcHectioQs opon
this tiausHctiuo 1 " While tlie treaty was Uiu*
protracted, the fate of Strafibrd was oetciiuineil
in parlianieut. An endc:ivour to subvert the
fundamental laws was a species of constructira
treason idl then uuknonii, and was establisbtd
on f^is n liich wcro either indifferent in them-
selves, or insulEcient separately to consii^Hle
such Clime. Whether from Ok ootelty uf tW
accufati'jn, nrfrum tlie defective nature of tha
evidence, a bill ot attainder wai nccEssarj to
reach his deputed heitd. Charles, nbu, acconl-
ing to the ordinary dispensation of justice, might
have remained a silent spixtator of his fate, wa»
reduced, by the bill of attainder, to the cruel
alterualive of becoming accessary (o the death
of a favourite minister, endeared by his services,
or of involving himself in a rupture with par-
liament, and in a ciiil war, while he was unpre-
pared for the event. As a constitutioual pre-
cedent, the attajader of StrafTord is surrounded
with ditbculties. Were an act, declaraioiy of
trecsuu, to be resiraiu<!d,on tbe one hand, with*
in the limits of the established law. a staiei-
man, secure from the stroke of justice, migbt
conspire, nitli impunity, to subvert the fuBd^-
mental law* of tlie constitution, which inifliet
nu treasonable design against iht crotvn ; yet,
on tlic other hand, an act declaratory of »ew
crimes miglit ultiiiAtely recoil on the peopla
themselves ; and a servile parliament might in-
dulge the ambition or tlie resentment of a mi-
nister, by the attainder of every oppunent whtun
lie hated or fsared. The evidence against .SttaC-
ford was defective, however, as it indicated
rather lib tidvice and opinion, than a concerted
design to render Charles indepeodent uf patlia-
ment; but, as mercy is not the attribute of col-
lective bodies, he sull'erid, without legd cti-
dence, fnim the violence of his accuseis, and
tlie secret conviction or the fears of his judges.
Theapprehensionsofliiicu^peifibe trial wera
interrupted, teem tohave^rst suggested the UU
for preventing tlic diesolmiw of pa|liw»e«f
without its oim coujent,"
::,y Google
1^)7] £TA7XTfU&LS, ICCiiAnLEfL 1640.— /orH^i Tw<u«.
llieliLiigliad^spTetslf rorluddea it : unr was u
the custom ol £nglnn(l to use that ceienionj',
hut only when tbe party ncciiied uos to be
plit upon his jur^. Tbose of tlie upper houie
did sit with tbeir heads cciiereil, those ufthe
lower haute uncavereil. 'Die Bisiiopi upon the
Saturday ' before did vuluntnrily dechne tiie
giving of their so&ages in tntuters ctiminal,
ami of that uature, occordinu to the pro^iiioa
Qfihe Canon Law, and practice of the kii>gdom
t9 thi» Juy ; aod therelbce would not be pre-
leot 1 jet n ithal they ^ve iu a Proteuation,
lliat their ahsence should not prejudice them of
that or any other privilege cotnpetent to them
OS the lunls spiritunl in parliament ^ which was
accepted,
'I'liE eaji of Arundtl, ae Lord High >SteiTa[d
pr {Liigl^iild, sat apart hy tiimsell, aod at the
Lieuieoaut's entry coiuiaanilcd the house to
proceed. Mr. Pym being Spmbier of the Com-
mitiee for his accusatiuii, gave in tike same
Articles which were presented at his last bein^
before the Upper itousc j which heing read,
bis Aeplies were subjoined and read nlw, the
vpry sanie whiclj wei^ presented before id the
Upper House. Some ^ive the reason of this,
becauK the Luwer House had not heard those
Accusations in public, before ; others, that the
foiTnality of ttie process required no less i bow-
ever, ;iidt day was speut in tJiat exercise.
Xlie Queen went from the house about eleven
of tlie clock ; ihc King and Prince btaid till
the meeting nns Oiesolved, which was afler
two. The Lieutenant xvat seat to the Toner
by his ^uard, and appointed to return upon
Tuesday at nine of the cluck in the ii)oruui|.
The cruud of people was neither great Dor
troub]t;M)jae ; all of them saluted him, and be
then), with c;reat humility and courtesy, both at
his entrance and nt his return: therefore let
fiuue prttenil what it p1ei-e about the malice
nnd (hscunteiit of the multitude, ■ That if be
' pass tlie Stroke of Justice, tliey wilt tf nr him
' iQ pieceit ;' yet 1 lev tJiere k uigrc in rumour
than ia si^t and appeomuce ; and in this
report, as iu nil others of this nature, more ia
thrust upon the vul|jar ("ho (eem as well fear-
ful of punishnjcnt, lis exempt from it, for all
(lieir great number) than they do justly diBerve.
March 33.
and erota mwiner recfHopensed his inn}nty*s
fevours, abused his goudnesi, nnddrawo all hb
nioDS into hazard aud peril of their reli-
. lives, gt>o«ls,aiid privileges: That one of
these faulu alooe h^d been enough, aud loo
much, for tho fulhlhag of the eiorbitaiicy'aud
wickedness of anf one man; and that no pu-
sbmeDt could be thou);ht upon, sujBcieu to
:piate crimes ofsuch a transcendent nature.
The Licutemtitt, with no less mo^ratioa
and cisdoiD than tlw other with iwat Mid pas-
sion, spake to his own defeoca; and that witji
jiuch a measurs of eloquence and livelihood,
thathii very enemies were a&cted with il,and
:llously report of it. He modeatly re-
c«untcd Ills services done to tbe king and crown
of England, his endeavours for advancemeat as
well of the hunour as commodity of both king-
doms ill general, but in particular thatof Jrp-
how hfi had engreateueil and advanced
the king's ravenuea there, restored the Church's
maiaienance, suppressed the Outlaws, esta-
blished obodietice to royal authority, and impe-
dited the ttranuy and usurpation of greater
ones otcr the Commons. Ami for the effect-
ing of all these actions, he mentioned hinualf
the most weak and meanest initrument, with a
wonde if ul prudence, iu a middle way, betwixt
tbe affectation of baseness, or drjectednesi, and
Master Pym, after tbe close of his EMeoh,
Cold him that there were tiireenew Articlea ad-
joined (by an aftet^earcb) to his Charge ; and
deured that he might presently reply to tbe
Wlierennto the LUutenant ansnered, It wm
verv strange, that after the chise of the procna,
and when matters were cocae to be scaaned,
and examined by proof, that any new charge
ibould he giveu m ; yet, lest he ahonld seem to
decline the maintenance of hii own innocencj,
and (hejuiit defenceof bis honour, he was wou
willing to hear tlum, and have them alledgcd,
provided th^ a convenient time might ba aa-
sigued him to make his Bepliea agauut them,
as he hnd done to the other given__in before.
But Master Pyn existed agaiiwt thii, and
told him, that the hoiue did conceive it to be
Od Tuesday in the moruiiig he came accom-
pai)ied as before to W*5tmiust«r ; and huving
staid ia the Kiohequer- Chamber till niue of the
clock, the kin^ queeo, and ptinc* came as be-
fore upon the £rst day.
Then Mu^tet' Pyst being called for, aggr*'
vated the Chm^, wjiicb ivas given tbe day
beFore, by a very ample Speech- It i« impw-
sible to cull in mind all tlie byperbote«, llie
llasiies, and superlative expressions that be
u^ ; theqinin points were, Thut it ira^Trea-
son br beyoud tlie reach of words, |h»t he the
Lieutenant, a ufttive wbjecl nnd a peer of Eng-
iafid, the priiRe governor of Ireland, tbe c«fa-
wapdsr oj Iw ii);itj«Ety's foic^j;, tml B PrvlCT-
.i«at ia riLigioD^ ihoulil t)*M i» wch «b io^>iwis
Upon .
(who did not think it fit ai
ticidar in the audience of the house of com-
mons) did retire themselves, and alier a pretty
time of stay they returned and declared, that
they had found the Lieutenant's suit to be
equitable, in deuring of farther time for an-
swering : yet saviag the Articles themselves,
neither tor number nor weight, seemed to be of
that importance, but that he miglu fumisb out
a present Answer, they thought it fittii^ to
grant no delay.
The Liiutmant then, entreating tham to
pats by and pardon tha weaknsssrs of bis ea-
tempacBryAaswen.deBiredui hear the Artidci
■end, fhich wer* these :
< First, 'Shat he had witbtn ikea* fvto jmm
« withdrawn 4(^000f. tu^mg Iron ib* Esdw-
Goo;;lc
powihle lo bring him intn ihp compiss of tj«>-
son Cqund tam luiitere cupio at Don cndaia).'
His Bdrer»e part^ is »<t great, xud to far inter-
ested botii in (mint ofKfrtj ■nil boDour af^ainst
him, thai ' wctere si nequeunt SDperOi,' &c-
nothina will J>c Itft ones*ajfd, [het may scc«-
Heluitli all ihis tine csiried Iii<i»tlfa)0r9|;e-
om\y; to the ndmiralion, and wicha) sa mode-
raiely, that it it to ihc greni sBttstkctkHi of ba
Tervennniei: bo ihnt he seetna neither dgectol
with lenr, nor lo affect boldrieis with confi-
dence, but lo cairy himself with that constancy
and resolution, uhich hi& innoceniry .ind braie
pans do promise.
The lra\i Cummistioners liere, hsTC hitherto
abstained frum giring in any ReinonstrBBCc
against the LieatemuC, wid do Kill plead to
have an immrdinledepenrtance from the kinf,
nod not from the piirliamtnt of F.n^nd.
There whs b report that ll>e pntlinnient of
Ireland hnd sent b Protm:itioo against tbe act
in hb
which
1419] ST ATE TAIAIS, 16 CsUiUxtL JSiO.—iyiali^llie Earl if Strafford, [1«
' qiMT iti Ireland, and employed It to hii own
' private uk*,'
' Secondly, That in tite beginning of his go-
' Ternmeni, the Garriions in Ireland had been
• ■laintaiiied byttre English Trcaturj.'
'' Thirdly, That ha had advanced pnniih and
* infnaious p«r*oni, as the hisho))i>f Waterford
' (uid otbers, to tlie prime rnanis iu the church
'of Irtlnnd.'
To the First bean5««red, That 30,0001. were
set apart for the king's late senice, at bis otrn
most special and most peremptory ciimmaiids ;
for which be produced the king's own Letter,
already approved m his Hcqniitance at the £i-
' chequer board in lrelai>d.
lo the Second, That at the beginning of Ihnt
Choree against him, as ever before his time, the
Garrisons had been biirdensom to the kingdom
ofEn^and: but that h^ had m improved it,
and teuled the king's Revenue there, that the
like is luit lo be heard in all the limes that
are by-pn»t : for whu:h, if the best endeavours
of a subject muy justly expect any reward from
jiii king and country, lie cmved leai-s to think
tliBt he raiher deserved many tlianks, tbuii the
least punistiment.
To the Third, lie appealed to nil (lie Clerg;
in Ireland, if ever he had lakcn upon him any
particular meddling in advancmg ihEir Church-
men, or whether he had done any thing ctm-
cerning such ofTaii^ but upon the speoial ad-
vice and desire of the best and vriscsl of their
number. Foi- bis part, when he befriended the
bisliop of Watcrford, he conceived of Iiim ■
man of integrity und learning, fit for tucb
einplajrment ; nor was there then the least s
pidon of those monstrous Impieiies, wl>e[cwiih
he was aftciwards charged ; tliat he bad now
justly suffered for the same, and that he hoped
they would not lay a necesajty upon bim to pro-
phesy and divine of the future conditions and
deportments of men. For nthen of ibe Church,
suspected of Popery, he knew none surh, but
should answer to the particulars so far as ihcy
concerned him, when they should hnppen to
be aUedged.
After this the House diisoWed for that night,
the liiof^'s majesty and the prince having staid
all the time i and [he Lord Lieutenant was ap-
pointed to cume thither again on Wednesday
mnrninc ; at which time ihey are to proceed
to the nrstArtide, to give an oalh to the Wit-
nesses, and to examine all the Proofs whereon
the process was bnilded.
It will be a very hard matter for him
pect every man's testimony, and to give bis An-
swers, either fiir full salisnction or diminution
of all ohjections; which way of proceeding will
spend at least a fortnight, if not a greater space
of time i yet it is tboD^t tlie Lower House
impatient of delays. The eipectations are
ceeding various and difierent about the event of
this great action ; some think it will be impos-
sible to eicuie the many and gr«at Accusations
laid lo his Charge; oihett, and that the ereater
number too, are of opinion that he will be in
nobaxaid of bis lift), and tbat it will not be
Eipediti
was violently m part, a no iiijinrtjorreplitjoniiy
obtained from rbetn : hut I hme Icnmcd this
to be an imlruth. I had alnioit tbrgullen coe
passage of Mr. Pym, who in the lugmvaiion of
the Lieuttnant's Faults, bad this npccssion,
That lie n-as like the Whore in ihe Proverba,
■ He wiped his mouth, and with a briTen face
* said be barf done no evil.'
To this the noblp lord replied, Tbat he wish-
ed his innocence might not be lakrn for impa-
dcnce ; tbat be hoped shortly to dear binisdf
of all lliose foul aspersions whicb bis maliciom
enemies had cast upon him ; and he was vei^
confident thnt he should give tlic hnnounilils
houses fhll satisfiictton concerning his life hi-
therto, and lliought of nothing more hereafter
than to retire himself from all public emplo)-
Mr. Pyn> gave at ibti a icreat sboiit, and de-
wred the house to take notice what an iiynry
he had done to the iMinouiable hniKe of com-
mons, in calling them his ' malicioos enemies.'
Wl>ereupon the LieutOiant fallini; down
upon hia knees, humbly besought ibem that
they would not mistake bim ; -and witbal gave
B large panegyric of theirmostjust and mode-
rate proceedings, prniesting that if he lilm-
gelf had been one of theliouse of commons, ^u
he had the honour once to be) be would not
luve adviied tlrem lo have done otiierwise
agaiuEl his dearest friend : but willial told
than, thai he mT(:ht justly say he had his own
tm-friendi, which he hoped in time to make
known. Nor did he dt this time speak one
hitter word against Mr, Pym, ibougb jntil^ in-
censed; whico huih infinitely advanced bis re-
I hnve been a daily bearer of these Proceed-
ings against this great personage now npoo the
stage, therefore do presotoe I can give a reason-
able account thereof. The Book of his Charge
is extant in print; m it shall he nandful forme
only lo DUnc tbe Artides, u tfaej were c*nTB»>
U3I]
■ed, a
STATE TRIALS, IOChablmL 1640.— far Higk Trcaion.
[U2i
lid itiow dcsif^ned iij ili
mom 10 be bis Accu^rs: wliicii wfic luese
that follow i
The Names gf/iis Accutert,
Fyia, Glyn, Maynard, WliitTock, lord Drgbj,
St. John, Palmers, sir Waller Earle, Siruud,
Selden, Uampden, &c.
One of these began llie Speecli ; the rest,
after their cnllencue hath done, tbllow in Llieir
turn: M tliat befiath all ol' them to-wr»tle
sgunst, Biul yet sufficieatly ublc fur tbEm all ;
though bj' ills a^tatiun bis spirits arc much ex-
Mr. C/i/n, after a large flourish, uQ n'edues-
day, told the lords, That the lord StraSbrd nas
impeached, not nich simple, but accumulative
Treason : for though, in eacb particular Arti-
cle, such a monstrous crime could aol b« de-
[irehcnded : yet wheti all was conceived in the
mass, and under one view, he sbould be un-
dgubtedly fokiud the most wicked and eiorbi-
bant traitor that ever was arraigned at the bar.
lie addedfThat his Charge wan for ioteDding
to subvert auil chaoge the fundamental laws,
liberties, and privileges of both kingdom), and
to iMroduce na aibitrary and tyraunic:al fonn
of government, This, he said, could not ap-
pear but by the fruits, nbich were either in ex-
pression or action. The expressions were
Fint, That before seveml Witnesses he had
iiid at York, >That tbe king's little-gager
* sbould be heavier to them than the loins of the
'law.'
To this the Lieulenaot replied. That having
(poken sufficrteutly before to his jusli Mention in
general, he would moreorer add these few
words, by their favours : That it did strike him
to [be heart to be attached of such a wicked
crune, by such honourable persoiis ; yea, diat
it wounded him deeper, in regard that such
penons who were tbe companions of hii'yonth,
and with whom lie had spent the best of his
days, sbotUd now rise up ujudgtnent against
him : yet he thanked Cod tor it, it was not
guilt, but grief, that so touch troubled him. He
ndded,Tbat it was a wonder how he bad gotten
strength sufficient in such intirmily of body,
and such anguish uf mi 0x1, to collect his tboughta,
and say any thing at all for himself; hut the
Aloiielity God, who knows him to be innocent,
hnd tumished him with some abilities to give
ttstimonv to t)>e truth, and to a good coosci-
ence ; He therefore intreated, that if either in
judgmeiii or iu memory he ehoold at any time
foil, it might be imputed to his great weAness.
And alinough tbe gentlemen his Accuiers
should seem more ready iu iheir Accusations
than himself in his Defence, yet tliat might not
prejudice bis cnuse ; who, iu very unequal
term!, had to do with learned and eloquent
lawyers, bred np a long lime and inured t* such
judtciury. pleadinzs, and whose rhetorick, he
doubted not, might present many things to their
view in a tnuttiplying- glass. He tohl them far-
tiia, That lot thcM many years he had been
weary of public service, and that now it waa
bi) resolution, after be had vindicated his ho-
nour, to retire himself, ood enjoy his much
lunged-fbr privacy : and yet he couid not but
tell tliem so mocb, that it liud been his hearty
wish and desire, ratlier voluntarily to have re-
signed his places of honour, like a ripe fruit
fallen from tlie tree, than to be violently pulled '
from (bence, as a fruitlesa and uoprontabl*
withered branch.
To tbeCharge of Treason he said,That under
favour be cunceived, that altbough all the Ar>
tidet coniuined iu his Impeachment were veri-
fied against him, yet tbey would not ^1 amount
lo Treason; ndther simple nor accumulative :
For (said he) I do not understand by what in-
terpretation of law the diversion of justice can
be called a subversion of the same; nr the
exceeding nf a commission, the ustirpation of
a new power. To the particular he replied.
That his words were clearly inverted, for that
bis eipreuion was, ■ Tliat (he Little-fioger of
' the law (if not supported by the regal pow«*,
' in grantiitg PnrdDiM for Pcmilties of the same)
' was heavier tlian (be king's loins.' That this
was his expression, be venGed, 1. By the Oc-
casion : for he spake the words a long time
eiuce, to some men wlio had lain imprisoned ac
York, and were then by the kinz's favour set at
liberty; whoiube mcit(Hltothankfu!o«ss(by this
expression) towards his uiajesty. 8. Bj Wit-
nesses pruduced by him. In the Examination
of ibeir nitnesses be convinced one of them of
untruth, by interrogatiog him where he was
when the Speech was heard, and how far dit-
(nnt firoin him : when the man replied, that be
was 12 yards from him; hs answered, that it
was impossible for him to hear a man three
yards off, by reason of a deafness, tfaflt had held '
him ]4 years; which being found true, the
Witness was rejected.
. Another Witness (sir David Foolis*) was
brought against him; azainst whom he ex-
cepted, as nis known auo professed enemy; it
was told him, that he himself did not me to
admit of exceptions against Witnesses, aiul
therefore was to expect the same measure.
He replied, TfaaC Master Pym might one daj
perhaps oe attached, for persuading the house
of commons to commit the same crim« (hat
was laid upon him as a charge of Treason,
But for all this, the Witness was received, be-
cause in matter of Treason a man's enemy may
witness against him ' pro domino nostro re^e :'
thoui,h I suppose, the king's advice was never
asked for tbe present. This was all that was
done for that lime.
On Thursday he was chnrged with tbe second
Expression : ' That he said Ireland was a con-
' quered kingdom, and that the king might pr*-
' scribe them what law he pleased.'
This they aggravated as a prinie_Noteof tut
tyrannical wilfand aflecti -' - '" '-
d aflection, that woeld permit
• See bis Case No. 143, vol. ii, p. 9W ; awl
note the part taken agaiust liim by liOfd Stra^
ford on that oecawon.
les^ STATETRIAI^, IOCharlm I. KHO—Trvd ttf ilte Earl (f Strofotd, [f«
DWlsw CO bound tbe stihject, but what liinlsdf,
mOA inch a»be, might dmw up by tiniKrau»in'-
faiABlioas from a gracioui and wetl-ineaiiing
prince; and il' this were admitted, the whole
poiv«r and' liberty of iLe Kepiiblic Kould be
UtMriy losl.
To this he replied, Thai neither wBs the E«-
prtBahiii in thobe words, nor in tbnt sense
spolten or meant by him. The firat part of it
(said he) cannot be denied : lo tbe second, that
ha b^ uid only, ' Tbnt the king irna tb« )■«■
' girer,' which he hoped none could deny iiiih-
out incurring the crime of Tretiaon ; and [bat
' the kirq;'!, Sentence was a law in matters uot
* determined bv arts of parliament,' which ail
biK diblbyul subjects would grant. And that
it had' ei'cr been tiis endeavour to have the
Liberty Df ihe Subject and the Hiiyal Preroga-
tive (bilow both in one channel; if either of
th«iD ciDSMd other, ivc could expect nothing
but asubt^rsion of the Com man wealth, either
bj tyranny or rebellion : That the prwogutii-e
vn like the firat, the liberty of the subject like
thf second Table; either both or neither cat!
be preserved. That in his duty he stond obliged
fint to the king, us God's Anointed ; then in
the second placa to his country, if it did nrit
cttKS the regal pnwi-r. And Lberefnre hoped,
that what he hod spoken vrai so far l>om lieing
treason, that he thought a thousand such ex-
pTMsions would not tiMke up one feluny.
March 36.
On Friday the two other Expressions were
fbllowed : That be aaid, ' Ue would not suffer
* his Ordinance^ W be disputed by lawyers, be-
' fore iriferiorjiidicatorio, and Chat ha would
' mnke an Act of Slate equivalent to an Act
' of Porliameat.'
To the firet he said, That he had otten 5.-ud
(more than once) that he would not suffer his
Ordinanco to beeontemned; becauifv in hini,
4i) matter'^ Imnour was wounded. — To the se-
cond, Jle thought a proporlionable obedience
was diie la Acli uf Stite, as well as to Acts of
Parliament ; otherwise they were made in vain,
if that both did not bind in one kind.
Tbe Loid Cork, (ihouf^h his mortal encuiy)
na* now examined, and aduiitted as awitnis^ ;
whom in hit DepositioD be convinced of two
shamcrul overughls: for Cork had dcclnted
upon hit oath, ^at the lieutenant had ca«:ed
to be tnCerbiied lui Ordinance against himself,
and had caused smae words to be scraped out ;
which wonU were notwithBtanding Btill fuund
to be iu the Sentence, by an authentic Copy
ander the hand of sir Paul Daviton, clerL tu
the Couneil-Board of Ireland.— Then Cnrk
tdledged. That tie had advanced a ^rooin of his '
to b« a Preacher; who by a testimony from
tbe Uoii'ersity of Dublin be veriiied to have
bees B Master of Arts tea or twelve j^rs be-
fore his advaucement : adding withal, that my
lord of Cork was an excellent scholar, who was
abU.to breed such pnvma.
UJMii SntuKday, hnvin;; done with hti 1^-
pnHiou, the;f canvassed tb« ^TK'Articfe ttboat
\i\\ actions : Against the lives oF ilie kini^i
aabjeets, both in the Case of (he lord Mouiil-
norrii, and also of another of ibe king's soti-
iecti, both of whiHn lie had sentenced to dcaLh
by Martial Luw, contrary to nil hw, and to
the manifest subiers'on of <be prinleget oi'
subjects, Magna Charts, aud ibe Petition of
Right.
To the lord Mountnnrris's Case be replied,
1. That though that Sentence had been un-
justly given aud rigorously pn»ecuted nJaiiM
him, yet the greatest crime ttmt he could be
charged witliat, would but amount to oati-
slnughler, or felony ut the must. 3. Tliat be
hoped, (hough (his were true, to obtain a pai^
don from his gracidus master tbe king's idb-
is Cotlway aild sir Jncoli Astley
Intetv done, for exercising martial U* in'
ifflty, .
the:
That aR armies
liave been, and mu^t be, governed ever bj
martial law. a. That (here is a staodine Army
in Ireland, and'therefore the case is dlone in
time of peace or war ; and that tbe armv might
be undone, if they should not use MacUal law,
but were to expect remedy for the settling of a
tnuliny, or assurance of obedience, from tlte
common law. 3. Hiat it had ever been tLe
practice of the Deputies, pttriicularly of Wil-
mot, Falkland, Chichester, yea Cot4: himself;
and therefore was no new thing brought in by
fiim. I'his he proved, both by the produclMa
of the military Ordinances, nnd'by direrj Wit-
nesses who knew Sentences given'in that kimt'
by them. 4. TTint he had a particular War-
rnnt in his Commission for this power. 5. That
ill the lord Mountnnrris's Cn^e, he was com-
manded (o exercise the same by the king's
paHicular Letter ; both whith he caused to t;
The seconti Chari;e p ns, Th«t he »ns bnlh
Party and Juidge in the lord Monnlaonis'i
lb tliisl* repticil, That he hnd sitlen in
Judgn
, bccnu
the Judgment could not proceed withont bati :
bat tlmt he was nut judge, tnit p«rQr, apptfartif,
1: Becau<ebe sat MiiciH-ered idi the time. S.
Because be refiised to ^ve his own opinim.
3. Becaii'e he did not gire Ids suffrage one
hSj or other. 4. flfCnn-e le lemWed h-*
Lmlher iff Georce from liMiii"!; a hum) in the
prOrtS!, ill regard of inttrWt irf hVod.
The third Ohnrgtwss, Tin I he procctrfetf
somm^trily in (Int' iMtlir of ihe lord Klonm-
He replied,' 1. Theihe wMf 'not Judgif bit,
and' tlr.rtilie Cnniii-ilof \faf ival to be an-
swcrdble in the insiilic alien of their owfi pr6-
ceediniss: ff. Tli:it af^UB lAn^eSsoffirtg he bad
heard tlieni say, Th:it no ddby conbt wirty-bc
gtiiiitcd in MnrlJnf CoWl'.
'ilie foarih Chilr«<|-t^^, 11«t' be'Ui rtT
U25]
STATE TRIALS. ]d Cbav-m I- i6W.—Jbr mgH TWomb.
[H2G
Iieard ihe Gxcrptionk made b; Moantnorrii
Tu (tiiB lie answered, a» before. That he nat
nnl juclt^e ill ibe cnse, luid that lie rentemben
no enceplioui laade a^aintt anj witiiessei. Tu
which lie added, 1'hut a» lie had been regutntrd
in his proceeding, to lie had heeu moderate in
ilie cuecuiion ot that Seoience: for ihoiigb the
lord HDUntnotris justljr desen'ed to die, yet be
had obtaiued him the kiiij('» Pardon, for the
saving lof hi* life; and protested, that be id-
te^ided nothing bjf that Scncence, but In lome
uieaaure to repair hii own hoauur, aui) to give
Mountiiorris f^ir reprDof, who Rai knowo to
lie of aa exorbitajic and Ucentious tongue and
ipirii. Adding, thnt if the Haiue of Couimoni
ivould go on the sntne way nith him, and assure
bini that tbe ia^ue of hit Charge should be notbiag
elM but to admonish him for the lime tn come,
b« would thank them heartily for it, and study
amendment in all pretended' oversights. And
whereat Mouutnurris complained that be had
jeeriuEly told liira when tbe Sentence -was
-passed and pronounced agaiiut hiui, That
ere he lost his head, himself vrould lose his
band ; lie answer^. That be had been thought
to be Teiy insnieut and haughty, vet lie
. was never to impertioFnl to uee this rx-
prea^ion: Ifany fault were, it was for under-
valuing himself, in snyine. That ere a hair of
MoiintnorriiVahoiild perish, be noold lose his
band. And truly (viid he), if Mountnorris
would say m In me now, even io the worst
senne ihat can be cnnceiveri. That ere I died
he would ioie his band, I would take it very
Undly from him.
For ihe utiier man, he avouched that he
himself had voiced to hang him, both because
he was an arrant thief, and also bud fled from
his coloun, which by the common law (and to
this effect lie cited a Statute 30 Hen. 6, and 7
Hen. 7,) is feluny'. He concluded. That seeing
he w'ai not accessary lo the Sentence against
' * ad not sat there as Judge,
I keep Martini Courts by bis
I not exercised the same till a
new cummand came from bis luajesiy, had
dime no more titan ever was practile<l in Ireland
before his time, and had at Inst obtained
MountnorHi's Pardon ; he hoped there was
nothing accusnble in him, but his too remiss
atid too moderate prucetdings.
Master Glyn bitterly replied. That ha knew
the time when the £ari of StrafTord was nolrts
active ;nd siirrina lo enlarge tbe Liberty, of
the Sulject, aod advance the Petiiion of Right,
than now he is for extending his own arbitrary
and tyrannical goTeriiment.
To' this he replied, without the least sem-
blance of pHSsioii, That if at any time he had
done the lea»t service to the liouse of com-
JDOM, he thought bi* nhole life well spent ; nor
could rbej ever so graciously reward him, as to
gift comniis-ion lo that gen'leman in express
to much before that honuumble assembly; but
witbal, if ercrBDyiucb thiug vros done by him,
VOL. ill.
might B
t. might now be rctnejnbered, and
irve to overbalulica some slight
■rsights comniitied by him; which
he hoped should never make him guilty ufTrea-
son, unless it were treason for n mHii to h»va
no more nit and prudence than Uod and na-
ture had bestowed upini liim. — And so much
for Saturday.
March 99, 1641.
Upon Monday he was charged nith the sixib
Article : Tliat lie hail used a tyrannical Govem-
Dieni, not ouly over the lives (as appeared bj
llie last), but also over tbe lands and goods of
the king's suhjecfs, its appeared by this Arti-
cle; wherein he was charged to have dispos-
sessed the lord Mouutnurris of a tenure of
lands, bj a summary process before himsdf,
contraiT to all law : and therefore had failedf
1. Agninst the 'act of T Hen, 6, which provides
all matters to be determined hy the ordiiiarji
judges, 3. Aenintt the Cautions s^nt to I rfr-
land by king James, expressly forbidding such
power hereafter to be exercised. 3. Against
the king's late Proclamation. 4. Acainst tba
practice of all Deputies before that tune.
Withnl they added. That it was n tyranny
that could not he expressed, to exercise this
power over the persons of tbe peers of the land,
and their goods.
To this he replied. That for his part, in mat-
tet of Justico (under favour he spoke it) he
thought there was no distinction to be made be-
twixt a Peer of the land and one of the Cnm-
mons, except they did think that either fear of
faction should do something, which had no
place in hiip. — To tbe Particulars :
1. That the act of Hen. 6, answered itself
sufficiently, both because it excepted tiie Court
of Requests (and that his proceedings were no-
thing else in Ireland), and alio makes an ex-
press reservation of the king's pierogative ;
which be said was his strength, because he
derived his Commission from the king, and that
ihc act was tbe mpst express warrant in lh«
world for him,
2. That he had not failed against the Cau-
tions given by king James, 1. Because thej
were not charged upon him. S. Because thej
were never observed, nor could be by the De-
puties to whom they were given; which b«
proved boib hywitneiies and writings. 3. Be-
cause tbe Caution made raiher lor him than
Xinsthim,in thatitcoutoiucd the word' here-
r;' which mauifestty implied that the power
hod been sometimes hemre exe^(^ised in Trelend,
and not only by himself; and therefore thanked
them for that tntiniony and hint. 4. That
though the Cautions had been given to hiio, yet
he had received an express command from the
king liis master to put that ponerinuae; caus-
ing tbe king's Letter, fur that purpose, to li«
read ; end professing wltbnl. That ne was teti-
der to exercise thatpower, till the king (induced
hy the humble Remonstrance of the mennet
sort of people) had most peremptorily, ud
upon most jiut naaoni, conmaiided luoi.
H^] STATE TRIALS, Ifl Charles I. \6iO.— Trial if ike Earl qf Strafford, [I4S
3. TItBt he could not oUy the king's Proclo-
malian five jcarii hcrure it i:ame out; and that
hr nislied Ironi Ills heart, thuttbty would but
rcipicl the bine's couimnuils nnd commi
wit'i ihii teiidiriie.sof nffei-tionnodobedi
,ih'-,n-\ Ir^fmcUii
. Men
dit t
it practics
ni iiii UK puiieii Liini nenC before him.
It wu'. obj.'Cicd, TliHt other Deputies bad in-
deed u.'Oii suits of equity dettTiiiiiied tbeiii-
Sflprt, us to miiiters of dibt, but iieierof Imid.
He I i-piit d. 1. Thut the siiiiic authority reacli-
etli a. well M the one us to the other, 3. That
reiihiT he ii'>r tliej bad ever given Senttncc, or
dt leriuined any thiii> ciinccniing mniters of in-
heritance ; hui only conreminE violent ioiru-
liim, which fell rirectly within nsuit of equitv.
To wliich he I'dded, 1; The Equity of ibit
■Court; thnt it proreeds upon the^nme grounds
and evidences as tbat of the Common Picas,
and [lint he bad the Rssistaiice of two of tEie
learned Jud^jes in deciding the coiitrovcrsv. 9.
Tbe Profit of that Coart, nliich ditpalrbc'th the
poor in B dnyortno; whereaithecommoa law
wodd kerp tbem go many years, nbich they
are not nble to sustain. 3. The Necessity of
that Court in tiiat kin|,dom, which ever hatb
been EovernEd by that way, and therefore im-
pi>uible to debar tbe natives from it, without
great incoavenience ; for it would utterly undo
them, and cone i^ prejudiced by it but the lan-
yera. And therefore seeing that he had dune
nothing hut what was customary, necessary, nnd
CKjuiiable, being commniided to it, nnd the sen-
tence just; he hoped rather (br thanks from ibe
state, than a chnr^c for bis ill deportment.
Withal, he shened with what exioition and
violaace the lord Mountnonis had taken seiz-
ure of that piece oflaiid, nnd made the playing
of Ilia game to be very foul. And at last ha
added, Tliat he had done no more in Ireland,
tbau the Court of Reijuest in England usually
doib, and that the Chancery Couit in Ireland
doib tbe same daily ; and tbe last Chancellor
was never cbargeii (said he) for such proceed-
ings, (hough this his power and authority was
less than mine; but the difTerence of the person
and his authority (it seemeih) diflereth the mai-
ler.— And this was the business on Mondity.
March 90.
On Tuesday they passed by the 7th Article,
uid the two first pans of the 8ili, and insisted
on tliRt part about the Lidy Hibbot's Lund,
That he had violently thrust her frotn her pos-
■eision by this luinmary way of Justice, and
atterwards purclmted tbe Land lo >iis own use,
by borrowing tbe name of sirKobert Meredith,
In this probation, the testjmonv of the gentle-
nouiBu's own son was used, of ih« lord C:ork,
And the lord Mountnorris, alt bis back-friends,
. or professed enemies : and yet they prove very
little, but what liiey tnok upon hearsays. Their
f rime allegation wus, l.'Thal ibougli ibe major
fftrt of ihe Couricd Board had voted for th
lady, yet the I.ord LieutetiHiit bad aiven Dt
creet aeninst ber. 9, That uU v>a* done to bis
•wn behoof.
To the First, He produced tbe Sentence
under tbe hand of the Clc ik of the Councd
ird, subscribed by the innjor part. To tLe
Seci'nd, He attested that Eie had no undM- deal-
ing with Meredith ; fur the lady had i;ot her
>wn lands back ffom the said sir Robrrt MetT~
lith. lie a!so declared, at lejistli, with what
raud and deceit thebdy bad ciiineioherlnud^
iiid upon wltat reasons they ivere restored.
After thi» Article the; li.'ll upon the 9ih,
ibout the giving of Commission to the bishop
of Downe nnd Connor, for apprcbcodiog alt
such persiins, and predentin); them hcf >re the
Council Board, as contemned the Eccle-iasiical
Ordinances. This nas aggraixted as a point
inly agninit the Liberty of the Subject. To
I he replied :
;. He produced the primate of It-eland's- tp»-
limony under bis hand, (lie being him-ielf ^icL]
that tbe sntne coursc> hud been used in Ireland
befnre; and ihot bishop Manntt;i>inery, his pre-
decessor in tlieLisboprie of Meiitlie, bod bad
the same.
He tbewed the equity that such nnislinca
tiKtuM hedven lo churchmen, wtio otherwise,
bectt'ise of Papisls and Schismaiicks, either to
God or the kin^;, would havu no re=pect or obe-
dience civen tbetli in that kingdom.
3. He proved by two witnesses, that such
4. He said, he hud never granted any t>Dt
that one, nnd b:id prrsenily, nithin some few
mcinths, called tlie uime iu agiun. ^tia) (luid
he) was tbe bishop of Du^vne's carringe in it, be
Itad no reiHon to answer for : hut be prenUDcd
the bisliop could give n satiiifiictory Antner Air
himseltj when he should be called in question.
And su lie concluded, tliat a matter w> ju^t, so
necesfciry, so customary and practical before,
he hoped should not be cliat^ed upon biia as
an introduction of a neiv and tyrannical fonn
of ^overiinicut; and therefore submitted him-
self to tbe mercy of God, nnd the equitt of hia
peers In bis trial. — This wns the work on! uesdaj.
The aliiliiy of this brave gentlenmu rarishrd
his hearers with admiration, though he be iuli-
nitoly spent both in body nud mind by the co.t-
tiuued and almost uninterrupted agilation.
March SI.
After the 9tb Article nas passed n^ainct the
Commission issued in fuvonr of ilie biiliup
of Downe and Connor, ujon Wednesday
Air. Glyn proceeded to the lOtli .Article.
The Clin^e was, That the Earl of Strafford
having EstiiLlished aji aibilrary and tvrinnital
govemnieiit over tlie lives, binds, and iihcrtica
of tbe kini^'s subjects, bis next desire was tn
make intnsion upon ihe crown itself; that L*
applying to his own use ihe public revenues, hi
might be tbe niore enabled to accumplisJi lii*
dislotal and traitorous intentions. To uliirb
end, having by a new Book of Rates, nihanred
(he Custorai,he had gotten by adi-nniBsei>fbii
Ij;ase above 26,000/. yearly. This (ihiy add-
edj was n crime of a higher nature fhan lLft»
coutainediu the preceding Anidet, because in
UZ9] STATE TRIALS, 16Chaiiles1. 16M.~-Jbr High Trtatcm.
ihiiie ibere «a» same coluur or preieit of jut-
tictr, here noiie; tliute iu pactirulart, iliii in g_e-
ncirul; tliose asjiiuit iJk- »ubject oidy, Uiii
ugkiiiai the Ud); iiiiiiscir.
Tor the Pruulcil' lUe Chaise, lliey piorJuc«il
the lease of the duke cifUuckiiighiim. Which
was reail and compared iritli tiiiiE Jeriae ti> Itu;
duchtisof BucLiiipliuiu, (wl.icli llic IJeuienanl
h.ith iiuir by utiji^iiiu^iitj luid Mme diilcrencos
ttiuau.arltingtoUie win of 3,000/. ill tbcduU's
J-fine; only ilie iiiuiety of coucealeil aud Jor-
fi.-ice<l:;oo((sweicduetohiiu,l><itilicnhul<.'i(i>uJ9
to theducliefcsiii her Lea^. Agiio, tlie ting's
xliipi of Prizes did not pnv cut'toiu iu ihe iluke'&
J«U3e; ID tJie duclietb's Uwy did. Ae*i"f ■'"-'
Impost of tlie Wines (tlnu beiunEing lo ibe
carl of Caiii^Iej wu not in the duke';. Le;ue; in
ihu diicliejj'a it WM. Lustl/, Wltereaii tlie ea/1
of Simlfurd piud but 14,iiooi. per aiiuum f»r
iheCusloin; it nus north (■> him, ai Husnppa-
Kiit by t'ie Hunk) of the Exchequer, iO,tMOi.
WiUie»i's uerceiuiiniiied.
I. RuJittna Hay, wlw deposed. That the
earl of Carlisle had an ndvaiit^E of 1,G00/. p?r
aim. by his Lease of Wines.
i. The lord Satului:h ; who deposed, That
l)j- llie inspection of tlu; Books of AcDsiuplJ,!*
had fiiuiid theCubtoois ta be uino 1636,3(i,OUQ/.
uiilio I63r, 30,000^ anuo 1C3U, 51,000/. auiio
11J30, 59,000'.
With [lie Proof tliej concluded tbeCliarge,
Tliat iiutiviihscanding the Lord StraObrd pre-
tended a fxeM measure of »eal and hunesiy in
his luajesiy's aervice, yet it is evident lie had
abusrd the trust put upon him; aiid by wilh-
,dra»iii| BO great sums of money from tbe
crowD, had weakened ihe king, prejudiced tbe
subjects of tbe protettiou they were to evpeci
from him, and had been iLe cause <bat tlie ex-
traurdinerj way of Impost and Monupoliee had
beeu undertakea lor giippljing of liie royal
necesiiiiy. And chut thi« act, ihcrefore, ougi.t
to bo euough to make the Charge and lin-
Jiendiment of iliglt-Treuon laid anintt bioi.
The Lieutenant's AepU was. That he con-
ceJTed he bod given full satisfaction ti> all
hiiherlo brought against him about that pre-
tended orbitraty government : nor would he
speod time in vaiu repetition* ; For tlie pre-
sent Article, tltough jn all its parts it were
jjranted to be true, yet he could not perceive
by what inierpretalion of' law it cui^ imply
the least act of TreasoDi ■iod wlien it should
be directly charged upon him as a point of
Alivjemeauout, Oppression, oi Felony, he made
no doubt but he should be very able lo clear
biiotelt abundantly in thnt point also ; yet, lest
any pre) I id ice migbt stick to bis liooour by these
bolif assertions, be was content to step so far
out of the way, IU to give ansner :
1. I'hat it concerned hiiu uoihing what par-
ticulan> iu tbe Leaae hud passed betwixt the
King and tbe Dudiess of Buckingham, or whe-
ther she liad obLuiiied a more easy condition
than the duke her bushaiid, eipeciHUy seeing
that same was granted MDte years befure his
cuinioK to ibat goveEBOMiit : jct ibu* much he
[IdSO
could say, Tbat the diicbeis had paid SO.OOOf,
Fine; and ilierefure no marvel her yearly rent
S. For tbe Book oflUics (wherein the diief
matter of Ujipressioii unit Griev.incc seemed lo
rest), tbe same niis there eslahlished by ibf
deputy Falkbnd, anno 1G26, ibrce ycnn belure
bis ^uing into Ireland; und theielbre it wat ex-
ceeding straufe m bis appreliensiun, Low that
could rise up in judgmeut ngoinsthiio.
3. 71iathe had his inttfettt in Ihe Custom) br
ossignatioii of a I^ase I'rutn the duchets, nhicli
wus given her before his governmeut^ nor did
he ever hear it nlledgcd as u crime of Treason,
for a man to make n good bargain fur liimself.
4. I'hat not of bis own accord, but at tlie
king's specinl conmiaud, be had undergone tliat
Chaige, in hopes that, upon tlie inquirv into the
worth thereof, the CusUiins might be iinprovi d
for the benefit of the crown, and tbe true value
thereof discoveced, Tlii) he provtrU by tbo
lord Ciitlingtou and sir Arthur Ineram.
5. That when a new Oook of Ralvs was re-
commendeil to him by the Council-Bourd of
England, in the time of his Lease, he sofitr pr»-
lerred a fear he had that the trade of Ireland
might tliereby be discouiaged before his own
coinmodiiy, as he ptesuineil, iu all hujnility, to
refuse the said Book of Hates, und tendered bii
reasons ihi-rcof to tbe kingdom end council-
board of Kngland.
e. That he never understood that the Cus-
toms could arise to those greut sums nlledged :
hut though they iihuuld ,yel his ndvantii^e was
hut smuU. Fur, Grsl dividing tlie 14,000^. lie
paid to the king; then Uic parts of ciglit, which
was yearly giieii iu upon oath (and ibiit pro-
cured lint by hiiiiicUjni theGichequer-Itiiard;
the other three ports divided aiuonosi four of
them, whicli Here equal sharers iu the LrHse,
would not amount to any great sum of inoney.
And therefore except it were treu!,on fo< him
to have iuipmved the king's Revenue, •iiC'iU-
rageJ the Trade, and nfo-ed the new Book of
Rates, lie could, in hii ovvn weak jud^ni(-nl,
discern none there; nor could lie tiiink ii a
crime for liim lo lake an us-i^nntion nf n lea^o
srauted before his time, and to insi't yu the
Book of Itatts used before bis cuiuing ovi r.
And therefore was conlidri>t ihi; Lorili wuuld
rather take his Accusaii<m us nn exeicibe of
rhetoric in the teniteinen his adieisanes. ibi.n
as a tliiug spoken iu good euriiiist by thi'iu.
The same day the 11th Aiiicle, ccmcerntng
Tobacco, was chni-gcd on him liy (lie.-aiur iiiai>,
Mr. Gfjin, after tlunnitnu. rj Tbutiorti.ef.inh, r
advancement nf his tyiiiuiiit.il and aVHri ii^uj
designs, he Iwd of himself e^tubll^hed u M:- o-
poly for (he resirauit of 'l'<buccr) in b it k' >,;-
dum; where llicv ofTtred liie I'.i iir 'il r- m
the Proof; ]. That l.e had i.siram. ii n <. Im-
jKirtatiou of Tobacco. 2. 'Ih.t in li.i i
lime he bad hmjtghl in a ^nut qu:<iri,jt }. , -
self, and sutd iht •■Miiie ai cMiibi .u ,. . -.
3. Tbat of Tohaeci ajiei.dy i p.i.. \ .■. ,... I
furhiildeii uuy t« b« >oid but uhat w*» —^t
e.(
>':;tc
1431] STATETRIALS, 16CHAELES-L 16W^Trial tf the Eart qf StnObrd. [I4M
Kftird by his ufficera. 4. That opon a (ire-
tended duubedience he hail paniihed a gr" "
number of people by Kizures, jiD|irisoiiiiiei
fining, whipping, pillory, -knd »udi-like ci
and mhumtn usaget. 5. Thnt bj theie me
Jie li»d gained 10O,0OO(. jearly.
for Pruof hereof, 1. The ProdEunaiion for
resiraiiiiog Tobacco was re«d. S. T
ctainatjon niouc the »edln^ of the sn
Some WitncsBCs, who declared [hat Shijis had
been restrained fmm tnnding Tobacco.
Others, who li^d known some Tobwxo »
oo IS Ibrt iied. 5. The ItetDoiistrance of the
•old at 3(. 6J. per pound, amounts to iOOflOOl.
'ITiey cimchided the Charge, That he had
■uckvd up tlie blood, and earen up the king's
liei;e pcoplr; and hud, bj this one point of
Oppretsiijn, raided greater sums tohinutlf than
all tl'.e king's Kevenue in Uiat kingdiim extend-
ed upto. And thcreforen-BsNxble to the crime
of IVeason, for troubling the peace, nnd be-
riuviiig ih« people ol' their good*, who were in-
tiuKcd (o his care and guvemiiieiit.
The LieutcDum's Replj wai. That bis most
•ecret thoughts were con'-ciou.i of nothing but
a sincere inlentinn and endeavour lo pruinoi
nndndvniiceibe welfare of that kingdom: bii..
withal, lie conceived (by ilieir Ifntes) that
nothing in that Cliorge could have tlie least re-
ference tu Treasun j ytt, as he said befitre, f-ir
renKiving of all prejudice, he wss contented to
Roswer : 1. That long before his coming to
Ird]<nd the sunie restraint had been of T.ilmc-
ci>, Htid tbe same impost of 18J. per pound
enjoined by king James. 3. That attlint time'
the tradesmi-n fur this cummoriitv paid but
SO', a year to Ihc crown fir <be impiHC. but
now 400/. 3. That the Pnrlianient in Ireland,
1013, bad peittioned to h.ive i his Impost settled
^r ftftrmnrds, BS a part
i. I'bat he had
more daneer in ibeui, than in otheti for Mono-
puUesin Kncland,in tbeworst«enk«. 5. That
the Prudaniatiang were not put forth' by himself
alone, btil bj tlie wholeCouncil-Board of Ire-
land, e. That for the Contract of Tobacco,
he was ID tender of it, that it *as sent m-ct
hither, and seen and approred of by tlie Couii-
dl-Soard of England before it was condocend-
•d to in Ireland.
For tlie Proclamations, he told them it vat
bis own opinion, (and if he failed in it, he liuio-
Wy crared pnrdon, and hoped that it ihiiuld
tot be Treason to have no more judgment thin
Ood had bfslowed on him), tlint llie king was
cnthied by Opd wiib a power to mnke tempo-
fry laws, and cuiise the same to be promul-
gated for the Koiid of Lis people, upon sudden
emergent accnsioni; to wbii:h laws obedience'
is due, tilt they be abrogated by ensuing pnr-
liainei is. Tbnt lie restrained no moa frrim im-
porting Tobacco, who was willing to pay the
appuiuted inpost. Tbu for bis part, he Uad
ne*er tralticked in alibis time is that kind, nor
bad any part with the coacnctois : And il tnj
TabRco ivas seized on, it was apon coaumpt
ofthe Proclsmaiioiis. Andif any person mre
ceutured to tlie pillory or #hippiDi:, it nai for
known pt-rjurr, ibe ordinary and uiual paaiib-
ment in such a cose. . Concerning tlie Tobacco
Imported, (be mid) no coosidersuon was tsLm
of the prices given lot the Tobacco beyond sch,
of the king's ite*enue of 4,000/. ot the oicr-
chants paiua and danger in bringing the mie
boane. For his part, if any advxuuga aot
made, surely it was not his ; nor could be an-
nul every contract or lease madeby the tioi;.
And therefore, seeing hit interctt was naac,
he had done nothing but at Ibe king's direc-
tions, and at ibc advice of the Coundl-Boiird ;
seeing Ibe name Iwpoit was in king Jama'i
time, nnd petitioned for by ibemsctm in Ira-
Ituid, he hoped bis carriage in the InitiDni
should be so for from acrime of treaiiiD,thatit
should rather be thought no crime at alL— So
much for Wednesday.
April 1.
.Upon Thursday he wns charged with ibe
13lb Article, concerning Flax, by master Maj-
nard, on tliij manner : 'That the Flai beine ibe
native and principal commodity of that kii^-
dum, was by liiin (the Ueuienaiit] restraiatJ,
and the subjects put to thnt nliirh was in-
known, yen, iiupussible, for the luih tii oi.itt
the san>e into Var<i. Here lliey lompLintduf
thrre things: 1. I hat by Priflainuiion hehwl
re«lraiiieil selling of Flax. S. Tbut he bad
ordered the luaking of yarn of surli am! iu(h
lengilis nnd number of threuds. 9. Thaiihe
native Iriah being unacquainted wiib such cus-
toms, upon pretended disiibedicncc, hid ^1
(heir Flax and Yam seized un to his uuj
whereby u great many families were reduced lo
such penury, tliut tlie* died by great Domben
in the lields lor want of food.
For Proof hereof, they brmigbt, 1, The Pro-
clamiition a)>out the Eestmiut.' 9. I'he Wsr-
tbr seizing the furfeited p>ods. 3. Me
ution of the WiuTiint p
Clotworthy, and lord Randi
monstrfline from the bouse oi
land, I'tiat upon iha tignruus course and eieta-
(ioii of this Wurrani many pervns died fix
want of fo"d. Thty concluded the Cbst^
theroforPT Though tiie Article did inii indin-
dually imply treason, yet it did make vtiy
much for tiie nccumutntioii of Trrasno.
The Lieuleuant's Reply wr<, 1 fiat, as be-
fore, he would, and must ever reprHt it, that
nolliinit was in ilie Charge that cniitHinid trev
son. 'Tothematteritself heaiuweted.l. Thai
tlie Proclamations issued forth wrre gmonded
not only upon convenience, but upon neccsity;
because tliat, except some way hail been taken
for ordering of Yarn, ibe inerchanti bad abso-
lutely given over the lini«-trHi<e in that kine>
dom. 4. TbattheCouDcil-BoBrdwasBitiaUe
the charge as himself, amouest whom wne
at ilut time Uie priinale of Jitbod, the tiA-
14S3]
STATE TiyAia. 18 Charlks I. lOW).— /«■ Sigh Tnt
[Hw
iDlgbt
bribers to the procln-
tnation;^ men, to them, tif known iutegnty and
judgment. 3. Tbatnaihine was more common
than for tlie Council-Board of Ireland to give
orders for reducing the naiivcs to the Engiiih
Custoini, and to biie iliem far drniving ttieir
hones bjr the tnilj, during their com, nnd lucb'
I like; and he conceired that to be n tding of
the tarae ns tore. 4. That the special tiling in-
docing him to it wai, becaiue he perceived [he
trade qF Wool to incmse much in that king-
dom. He dissuaded by nil mean^ tJie mnking
of Woollen-Cloth, because uf the iufiniie detri-
ment that might happen thereh}' to the king-
dom of England ; oiid therefure thought ttiis
the best waj to encourage the wenr of linen-
cloth. For the Warrant to seize upon the
goods, he alSmird tbe same to be nccetsarj,
because there «hould be no contempt to Pr»-
ctamations : But that onj part thereof did ac-
crue to him, he flaily denied. If anj rigour
was uied in the eiecutiun. he said, not be, but
his otficen were to auEwer for it : Ibr this
hapiKn in the most just and necestai^
mands ; nor was there e\ei any complaint pre-
Eeuted to him ofan^mch matter. For his part,
lie had tost SflOOl. in tbemannfsctare, esublish-
ed bjhioiself fut tbe encouragement of othera.
To that. That tseraons died by that means,
he replied. That it was more than ever he
heiird, or cnu)d think possible; yea, tliot he was
cleared by the All^atinn itself, which saiib,
ttint (he same happened since his coming from
Ireland.
Tu the Remonstrance of Ireland, he con-
ceived. That a Charge wns but a slender proof
oF ■ Charge; and thut especially upon Inter-
rogatories, not upim Uatli, seeing that priTilcge
was not due to the house of rommons neither
here nor ihf re ; that he might say it in truth and
modesty, he deserved uiuch better nf that peo-
ple, and might lake up tbnt in the Go<pel, ' For
' which of all my good deeds,' &c. yet he hoped
to be belter understood shortly both here nod
there. And for his part, though liis puisuit had
been very hot, yet God was his witness, be
never intended to take the least improa^ion of
revenge for those discontents and affronts which
bad been engeriyput upon hiro; or to carry
any thing hence with him from that bar, where
so many foul ' aspersious bad beeu unjustly
thrown upon hiis, bat only grataitia ricalrictl.
Tlie same day a fresh m;in (master Palmer)
entered the' lists against him ; who having
passed by, for want of Proof, the ]3tb, 14tli,
and part of tbe 15th Articles, insisted only upon
tbe second part, for G"'iiig Warrant to serjeant
Savil for senlng and laymg soldiers upon the
■nbjects. He charged thus: That the lord
Strafford, having by a tjrraniiicBl power inverted
the ordinary course of justice, and giving imme-
diate Sentence upon tbe bttds and ^ds of the
kiDg's salyects, under pretence of disobedience,
had used a military way for redressing of the
contettipt, and laid suldiers upon the lands and
gMtlt of tbo king's suljjecls, to their utter ruin.
tills Article (be said) of itself did cnntain an in*
dividujJ Treason ; to that if there were no
more than thjs, it were more th.tn £u£cient to
convince him of his Impeachment.
Here he uITered two things ; 1. The pruof of
the point. 2. By what Statute iliia act of ty-
ranny dirertly, and by itself, implied Treason.
For the first, Serjeant Savil was called, who
produced the copy of the Warrant upon which
he had settled the Soldiers,
At this the Lieutenant rose, and humbly in-
treated tbe lords no evidence should be receired
against him upon an Article of such in^ort-
Huce, but what might be thought autlieiiiic;
and such a one, under favour, he conceived
(bat copy not to be: 1. Because no trantcrip^
but tbe original only, can malts faith befora
tb* Kine's-Bencb in a matter of Dcrht ; tbn«<
fore far De it tram them to reriTive a most (len-
der testimony in matter of lite and daaih, be-
fore'the supreme judicatory of the kingdom.
S. If Copies be at any time received, they arc
such as are given in upim oath to have been
compared with the Originals, which are upon
record : such an one was not that copy.
It was replied by Master 01^1, (Ibr all of
them spake as occasion served) That the house
had hut the day before admitted Copies as Evi-
dences ; much mure should they do this, wlien
it was produced by the oBicer him>elti who
best knew it, having executed the same.
To this the Lieutenant answered, lliu all
other Copi<s ought tn be received upon nath,
to have beeo compared niih tbe oHJiial, as
right reason retjuireth ; but that thin was not
so : and for the olficcr himself pioducing it.
Thai was the b»*t argument he could use, why
it should nut be admitted. For, said he, innstcr
Savii may be charged with Trensun, for cess-
ing men of war upon the ling's iLlijects; be
hath nothing fur liis derence, but a pretended
warrant from me. Ntiw, whnt hci sweurs t»
my prejudice, it to his own ndvniita^e; nor
can a man, by any equity in the world, be all-
mitted to testify against aiiethtr iii siiaia jat-
tijitationem.
Tbe point seemed exceeding weighty, and
in effect was tlie ground-work nl' the whole Ar-
liele ; which not proved, nothing could evince
bim to have been accessary to the cnnsrquence.
The Upper lloi>se< therefore adjourned them-
selves, and went up to their own court; and
after a very hoi contestation between the Fac-
tions, and above an hour's stay, they returned,
and declared that the lords, atler mature deli-
beration, had resolved Hint the Copy should
not be admitted, and desired them to proceed
tn other Prook : which after a little paube iliey
did.
First, the lord Rtmelagh affirms, that he
beard of such ^ Warrant, and knew sumciimet
three, sometimes live soldiers biUeiird by it. 9.
Master Clare declares the vfry same. 3, An-
other depoieth, he hath seen such a Warrant
under the deputy's hand aod seal. And so
much for the Proof.
For the Statute, they aUedged Me of Ed. 9^
...GooqIc
lai] STATETRIALS, iSChaklxiI. lOiO.— Trial (if iJie Sari itfS'Tqfford, [143i
fl. That whiHO«Ter sbould cnrry about with
tbeoi Ea^tith taeaiiet, Iruh rebels, or boodcd-
tnen, and cess ibom upou the sutijecc, simuld
be punished a« a treiior. duotber of Ilea. 6,
T. That ahosoei'tr should cess mea of war io
bis niaj«9lji's dominions, tbuuld be thought ui
make war against the king, and puoisheii as a
trailor. They concluded, It was evident the
lord StiaDurd bad incurred the pcualiy and
breach of both the StiUUEes, and thcretbrc do-
'■ired tlie lords should give out judgtnent against
Tbe Laid Lieuienaot's Reply was, Thut in
all tlie course of bU life be had intended do-
thing more than the preservation of the lives,
goods, and nelfHre or th« king's suhjectt; and
that he dared profess, that under no deputy,
more than under iiiioMlf, had there been a
To tlia Chaise he answemi, 1. tlial tlte
CustoDu of Ireland differed eiceedingiy from
the Customs of England, as was clear by
Cook's Book ; and tberefore chouKht cesiiiic of
men migbt se«m strange bare, jet not so there.
2. That even in England be had known Sol-
diers pressed upon men' by tbe Piesidents uf
York 4nd Wales, in case of known and open
contempta ; and that both in point of outlnvrry
Mtd fabellion, and alio even for sums of debt
betweea pttrty and party, there is ootbin; more
ordinary than these cessings to this day in Scot<-
land, whereby the chief house of the owner is
leiied upon. 3. That to this day there haib
been nothing, more ordinary io Ireland, thao
for tbe govenion to appoint soldier* to put all
manner of Sentences in eiecutiou; which b«
proved plainly to hare been done frequently,
and faniiliaHy eicrcised in Grandison'a, Falk-
land's, Cbicbester's, Wil«oi's, Cork's, Even's,
•ad all preceding deputies times ; and had even
ibr Outlawries, for tbe kirv's Debts in tbe Ex-
chequer, orCoJlecxioa, of CoDtrihution-Mouey,
and, which comes Iiome to the poiut, far petit
sami of- money betweea party and party: to
that be marvellad, gum Jrorite, or with what
boldness it could be called an Arbitrary Go-
vernment lately brought in by him. To this
tha lord Dillon, sir Adam Loftue, and air Ar^
tbur Teringbam, deposed ; the last of whom
told, that in Falkland's time ha knew DO sol-
dier« ccMed upon a man for relutiag to pay
ISt. sterling. 4. That in (lis Jnumction* fat
executing his Commissions, he hatfa express
Warrant tor the same, as were in the Iiutruo-
tions to tbe lord Falkland before bina; both of
which ware produced aud read. 6. That al-
though these Precedents were not, yet it were
not possible to govero tbe kingdom of Ireland
oiherwisF, which had been from all times ao-
cuitoined to such sumatBry proceedii^. 6.
Tliat DO testimony brought against hioi can
prove that ever he gave warraot tn that eftict ;
•»d for the deeds of the Seijeam at Arms, he
did not conceive bimtcif ID be aoswcrabla
far it.
As for the Acts of ParUament, lie had re-
KTvad tbeui tu tb« diipiite of JutUwytn; but
was content to say thus much for the preseoi :
1. That it ii a ground in the Civil Law, that
wbrre the king is not menlioued, ibcre lie can-
not be included ; bur, Kith ull deference tu his
sacred person be it spoktn, he coDCeivt^ hin^
belf tu be in his innster the kinjj'n place, lor ri
bis CoDUiiia^on did run, in tlini kingdi>m oi
Ireland. 2. 7'be wurdi i>f llic Statute nn uc>l
applicable to bim ; for (Jud knows, be neiei
went about in person to lay soldiers itpou any
of tlie king's subjects. 3. Tlul the king's own
soldiers, rc<]uiring in a cuttumary way obedi-
ence to liis orders, could iii no cousiruction far
called ' Irish Rebels,' ' Ei^liih Enemies,' or
' hooded -men.' 4. That the use and custom
of the law was the best interpreter thereof;
and fur that be had already spoken enough, S.
Tbal It savoured uiure of preiudice tluii iijuity,
tu start out tucb an old SlatuCe a^inst liim,
aod iioue othcn, though culpable of the s.iue
tact, to tbe overliirow aud ruin of Iiim and his
posterity. 6 That, under favour, lie cooceived,
tor any Irish cu^iom, or iipun any Irish btatate,
he was to be judged by tbe perrs of Ireland.
7. That Statute, of what I'lirce soever, was re-
pealed. 1st, Bylhe lOtb of lien. T, where it
IB expressly declared, uotbiuj; shall be reputed
Treason liereafter, but mbui is so decbued by
the present statute ; now, nut a word there a(
any sucb Treason. 2dly, iiy tbe 1 ttii of qoten
Eliz. where expressly poiter is given la the De-
puty of Ireluiid to cess lUid lay soldiers, al-
though the tame be reputed (reason in aiiy other.
To the Statute of Henry 0, he reolied, 1 bat
a slender Aov^er might serve: He hoped that
no man would think bim so incua^ttlerate, to
war Hgouitt the king of Britain and In^.ind,
by the cessing of five soldiers ; that he had bees
ctiarged by many for taking arms for the king,
but to that time never for taking arms agaiDSI
bim ; aud that he heartily wished, that no moa
in all bis majesty's dominious hod more prac-
tice, with rebels, and rebellious designs against
ihe king tlian himeelf. — Su much for Thundar.
At the close be desired the intermission of a
day, that he might recollect bis spirits and
strength against tbe next quarrel; and with
some difficulty obtained rest till Saturday.
Aprils.
Upuo Saturday Mr. Paliatr proceeded U
the Sixteenth Article, and charged thus : That
the lord Strafford having established a tjraani-
cal and indepeudent autliority, by gitin^ i«a»
mary Decrees and Sentences, bad deprived tbe
tulyeat of all Just remedy ; for in that kinf-
dom there was noae supreme to bimtel^ to
whom tbey ought appeal ; and lest their jiu
Grievances might be made kuovm to bit ma-
jetty, be had obiaiucd a restraiut, that no
complaint should be made of mjuitioe or op-
□reisiun done there, till tbe biM address had
been made to himself, and that no penoo
should come out of tluu kingdom but upua
licence iifataiaed from hiniielf.
Fur Proof of this, 1. The Instructiou wete
ECsd, wlwrabj that inttwat was penaiucd.
1437]
STATE TRIALS, 16CnAti.Ml. i640.—/or High Treaim.
[I48S
9.' The Proclamniion, Tljtit all noblrmen, |;en-
ticmen, uii4«nakera, officers or other subjects
that should report into tint kingftom, ihooli)
not come from thence without a licence from
him. 3.,Thuihe liari retrained the enrt of
Desmond, becanse of a suit in law depending
between the Karl atid himseir, till pnbUcntion
of tlie same »a* passed. 4. That the lorH
Uoch being informed a^inst before ibe Star-
Chamber, he would nut license him Co come
into this kingdom, till (lie Sentence vim passed
ag^lin^t him. 5. That one Marchatee Wing
pretended a mind 10 tmvel, was denied a Li-
cence. 6. That the wliole Committee for the
Parliament wis reitrftJiied tbid lust year hy de-
puty Waiisfnid, which they said miiiht be in-
tetprtted to be his f»ct, both because they had
■ucli iiic(:'iligence ihc one from the other, as
also by the Proilamation issued by him liefore.
X- Tliiit one Pflr[?,srrtanc to chnncrllor Lofrus,
was filled 500/. at his lelurn, for departing Ire-
land wiihout licence. 8, That the Iri>h Ke-
iDil lis trance complained of thin, as the Krealetl
innovation and thraldom put upun (heiQ since
the time of (lie Conquest.
They cniiduded lliu Charee, That by this
means baviuj; taken off ih:ii intelligence which
■hoiitd be bt'iveen the kinf;and his people, and
having deprived tbem nf ih:ii remedy nhicb in
reason they lui^ht expect frr^m m just and so
graciiius a piiiice, he had raken upon him a
rovul and in<iependent power, and bud faulted
lii;:hlv both Htulust kin? and state.
Ihe Lieutenant's reply wj.a. That he hoped
to niiike it clcnr, that lie had done nothing in
tiiut particular, but what nas usual, nccetsnrv,
nna just ; and ibnt he sliould lie very vrull nUe
(by the grace of God) ni.t only of that, but of
ail other his public actions, to etren reasonable
account, though not free froui much weaknen
yet certainly from nil malice and treason.
To the Particulars : 1. For Instructions laid
upon bim, he ivas not so much chargeable as
thoiie of thu Council of EnE;land, whercofthere
was a great inuny present who could wirness
their commands i but le«t any tHnj£ should
seem unjustly enjoined by ihem, or embraced
by bi'>n, he desired ihnt the reasons of ilicir
lnsinjilionsmi;;l'theread: which were, 'Tliat
' it were iiijus'-ice to complain of injuries, of
'. oppn ssion done in that kingdom, lill first the
' deputy's |iidi:meiit was informed, and trial
' madfof l.ii iuteority: That it would much dis-
* coarape tlie minisltrs of stale there, and ei-
' pciid the monies of that kingilora, if upon
' every trilljnj; business comulamti should be
* admitted in Knitland : and that ifjuitice were
* tlwte denii'd by ihe deputy, it sliould b« Uw-
' ful for any man to come over.' 3. For the
Prcclamatiiin, that ilie same wh» builded upon
the >>tntii<e of tliat kin^om, the SSth Hen. 6,
which cuntaint'd the Miuie restraint verbntim.
• 3. That anno IG-iS, the Aeenis fur the Irish
nation had peiiiioned fur the same from the
kiup. 4. Tliat the Deputy Falkland had set
finl. The .same ProchmHtion. 5. That be had
Hie king's express warrant for it, anao ieS4,
wliich was read. 6. Tlint be had receired the
Warrunt in January, yet the ProclamatHni
issued not out till September Hftcr. T. That
the whole Council-Bonrd of Ireland had not
only condescendeil, but also pressed him lo it.
8. The necessity of the kingdom required the
same ; for if the gentlemen had the Ports open
to go to Spain, and their scholars lo Ooway.
RhtMis or St. Omers, it were hkely that at
their return ihej would put fire both in Churcb
and State, and produce very sad ei'ents, by
practising to distemper both. 9. He con-
ceived Ihe the-king, as great master of the fit-
mily, might restrain nboni he pleased fnim d^
parting his kingdom without bis privity : and
here it was not lawful for any lo go from Eng-
land without licence; how much more necct-
sarv was thi( from Ir^aod !
To Ihe Prn'ifs he answered, Isi, Pot Des-
mond, he grnntcd he was restmined indeed, but
not Ibr uny suit of law betwixt ihem, bnt be-
cause ut ihnt time he hiood charged with 'i'rea-
sou bcrnif the Council in Ireland, for practising
against the hfe of one air Vulemiiie Cuoke. 2.
Fur the lord Uocli, he bail oftentimes inarrellid
with what reason the itnin at that time could
seek a Licence, sewng he was « nrijouer I'ur
debt in the c.-isile of Dublin ; ana if be hail
granted a licence to him, then it had been k
ftir more just charge of Trensou than now. 3.
For iUaichatee, he was afraid of hit goioe to
Spain ; and if he had intended to go tor £ng-
tand, and coniphiin of himself, he would not
have refused him liberty, as' he never did lo
any. 4. That the Committee of Irish was not
restrained by him, and therefore did not con-
cern liim at nU. 5. That fur Parry, he wai
fined indeed ; but that it is expressly said in his
Sentence, that it was not for coming over wKh-
out licence, (as is suggested) but far sundry
Contempts against the Council-Board in Ire-
land. S. That ha had replied in the last Ar-
ticle, B Remonstrance was no Pruof at all.
He concluded, that he hoped the least su<ipi-.
cioD of Treason could not sccrue to him from
Ibe Article : for Oppression or Misdemeanour,
when it was laid to his Cbarge, lie marie no
doubt but he should be able to answer i[.
The same day a new man was hurried out
against hiui (Mr. WMllork) ; who having
passed over the ]7tli niid 18th Articles, rested
on the 19th, about the Oath administered lo
the Scots iu Ireland, and charged thus :
That it was ihe heieht of liis tyranny, not
only lo domineer over the bodies, but also over
had enjoined at
and because some out of tenderness of con-
science did refute to take the same, he had
fined them in great ■ums of money, banished ■
great numlier from thnt kingdom, called all
that nation Traitors and Rebels ; and said, If
ever he returned home from England, he would
root them out both stock and branch.
For Proof of this, !. Sir Jammy Mount-
Eomery was produced ; wlio declared at lariie
ow that oalh was coatiivcd. S. Sir Ruberc
1439] STATETIUALS, 16CBAU.MI. 1640.— rrifl/^/AeEar/qf&refun^, (1-«1
Ua^meH orOrcbiardnn, who spoke to the same
purpoie. 3. Sir John Clutworthy, who de-
cUre<i, that a great namlier hud llrd the king-
dom for Itar ot'thatonih. 4. Oue Mr. Samuel,
who (Uposcd, that ui.on the lOth Oct. 16i38,
be beard tJte DepuCji snjr these words, ' Tlial
' if he returned, lie would root them out slock
* and branch.' — Thej concluded, That thij
was a point of the most [yritiiitical and arbi-
trary guveriiiDent that before this time was
ever lieard of, not ouly lo lord it over the for-
tuoes, but also over the fioul« of men; and
that it rented only in the parllamenl, »hicli
hath llie legislative poner, to enjoin oalhs.
And that iherefore this wns one of the chief
points he had d-ine against the privileges und
liberty of the subject.
The Lieutenant replied, That every new Ar-
ticle acquainicd biin with a new Treason;
that if he had done any thing in all his life iic-
ceptable to the king and country, he conceived
it in b« this.
To I liess Particulars ; I. He detired theliirdi
wonld call to mind tlie condition of those
times ; no man (pointing to ray Lard StewArd)
inoHs better than your lordsbip, who had tlien
the chiefest place in his miijesty's service. I
would be very sutry to rub (bald he) old sores,
especinllj seeing I hope thinj^ are in a fair ivaj
to a lirm peace, and I nish that I may not be
deceivEd, ibal is, that it may be so ; onlythus
taixii I may lay, we had then greater feais and
apprtheDsions in Ireland, lest the Scots itr the
kingdom (who were above 100,000 souls) ntight
have joined with their countryineD nt home,
fur the disturbance of our peace : mean lime
we detected a Treason of betraying of the
Castle of Knockfcrgus to a great roan in that
kiuipboi, (whose name I now spare) by one
Freeman, who upon the discovery was execut-
ed. The Coundl-Board therefore in Ireland
resolved to prescribe the Scots an oath, where-
by ihey might declare their dist^olent at their
countrymen's proceedings^ and oblige tlieiu-
■dvei to the Ling's seivice: But while we
were about this, they of tlieir own accord cnroe
to Dublin to petition for it, and took it with a
wonderful alacrity and heartioest ; so that it is
* marvellous fiUsehood for any mnti to say it
was invented, or violently enjoined by rae.
2. About the same time the same Oaih, wr-
hum verba, was by the Council of England pre-
scribed to the Scots at London, and elsewhere;
U euconragemEnc to us in
Ireland.
S, I had (gsld be) which T nerer shewed, be-
cause I had no need before this time, a special
Warrant from tlie kinft, all written with his
awn liand, lo that effect: and when the king
cuinmands a matter not contrary to law, trill*
I (said hf) do concciie it both contrary to Uw
uid conscience not to yield him all due ohedi-
•ace. For the Pmof biou;)it at;iiinst him, there
was nothitrg seemed to be of any moment but
Ifae Words.
For the lir<t Words, ' That he had called ail
* the aatioB Beb«lt aad Traitor*,' hs mid there
was no Proof at all, nor indeed conM tbete ha
any : for if I had snid it, (qnnth he) I bad beta
perfectly out of my wits ; and, he thanbrd
God, such irrational spcecbe* used not to es-
cape him. ' He honoured that kiagdom very
much, because it was the naave soil of I'Dr-
dread sovereign, Lis gracious ma&ler; and be-
cause he knew a pan, yea, (he hoped) li.e
icrealest part of them had been, aad ever wiD
be, as loynl andaintiful to the king as any other
of his subjects 1 and of those too who bad sub-
scribed tnai unliappy combination, be knew a
great many Imd dune il againiL ibtMr heaiti
and wills, and would be rver ready upon occa-
siiiii to rcindn strata the same, by anliering u>
the kinn's service. So that this Acrusaiioo
was notliio); but a nresiing; and perverting; bis
words and neaning, of puip<ite to make hi«
odious and irritiiie n ivluile nation gainst bim.
For the "ther W.ird-, they were proted .mly
by one Wiinrss, which could make no Mfi-
cii'Ht fiiitb ; and that nilnets trm be would
evince, ii* not of pt rjiiry, yet of a o'.talJc mis-
take ; for be had sworn pusiliiely that I e bad
spoken these words the loth ol Uciui.o',
whereas he lyas come out of Iielanil inlu Ene-
land the ISth of Sept. before, and was at I^b-
don the 9lEt.
For those that had lied the kingdom becaose
of th.-tt Uaih, lie knew none such ; and if they
did, they fled into Scotland ; which nii-hl -^vf-
ficienily ai^ue their inieniions and resoluiiuis.
For his part, if they were nnt wiliiiT^ lo give
that teilimony of their hiyal'y to their prince,
although he had known of thrir departure, l>e
would have been very loth to have kepi ibesa
against their wills, hut should have been gladly
rid of them, and have made ibem a brid^ la
be gone, rather than stay.
April 5.
Upon Monday, Master Wiillock proceciiled
to the SOih Arjde, and told bim. That be-
cause the matter was iotervenient, w crmiimiiix
natara, they had resoired to join the five next
Articles tr^her, because nil of tbem tended
to one point or period ; that is, tu shew wbat
had design he had, to have subdued ibe Lin:-
doms both of England and Scijllaud ht fixc*
of arms, and to reduce tbem to that Arbilrsij
Government he bad lately introduced iitia Ire-
land.
The Lieutenant intreated tUt t1«y wovU
proceed according to tbe Order prescribed bj
the house, which was Article by Article : be
said, Svb Articled were many, the natxr
weighty, his memory treacherous, bis jiK^mvnt
It was bitterly replied by tSiMer 6iya, TbM
it did not become the prisoner at tlie bar to
prescribe them in what way they should give n
their Evidences.
The LJi'Uteniint modestly answered, Tliai if
he stcid in his place, he would perba|» a«<«
the like favour, unless his abilities did fiit«icb
him with more sin-n::lh than be could' find ia
himself; for hit pan, he was couicuted ib*7
mi]
STATE TRIALS, Ifi Coauu I- I6i0.-^ Hi^ TWomr.
IV, alwayi pravided thfj
i^eteot time tbr replviug.
it iin, and told Uic i'ords.
iboul4 pmceed anj
wguld gprnt hiui a c
Theu W/iiilocki^
Tlut iomfthiog ia tliow Artidcx cuncemi.'d
the Scotish, tomething the Fuijilkh nation.
. Tliat whicii coDceriiud tbe ScotisU lie reduced
to five H««J9 ;
I. That tlw Deputy had said at the Couocil-
Board, ' That tlit; boii UemaaHt coiiuiiied
' «ufi)cUnt matter to perkuade to ^lu otTeutive
S. ' That the lame Deraandt did strike at
' tlie root and life of moTiurchicHl govern mei it,
' and were ouly to be nDtwertil liy tbp tword.'
3. That hi' cauied tome Scntish goodi and
ships to be ieiied iin in Ireland.
4. That lie hnd engaged ihe Irish parlia-
mmt, )ij tlieir Dediirotion, in that war againjt
the Scot!.
5. That bj all poMible meiins he had put
bad thouvlitf and luspicians into hu majeaty
a|!ai"H hit Scotish suhjecis, mid laboured to
make a nalional quarrel between ilieoi uid
England ; wbidi, if the kind's piety and the
imideiice of bctter-nflected statesmen had not
' prevented, cuuld not have txen todderad up
again without much blood.
Cooceroing EoKlaod, his Speeches «ere
citW before or after the Parliament :
1. Betbre his creatuie and bosont'&iend ur
Geoig* BaCcliS, he had said lo sir KobartKinf,
wbea he was doubtiiig how the Ling might
ha»e Monies to pay liis Annicj, 'TliBt Lhe
' king had 400.000:. ia his pane, 30,000 men
' in the Geld, and big sword by bia tide ; and if
' Jie wanted moaejt afieiwardt, who would pity
•hilar
9. That hii brother «ir Geoige Wcntwprth
had (aid to sir Boberl Barington, upon the dia-
snlolion of the lakt Parliament, ' That seeing
* tlM Eiigliih would not graot Supply to the
' kingi it seems they were weary of tbeir peace,
' aaddeaixed to be conijuered a iccoiid tune.'
' 3. That be himself, upon a discourse wiib
the primateofireland,hud said, 'Tbathenu
■ much of the mind of those Enp^lish Divines,
' vrbo BUUDtaioed it lawful fur a king, having
■ Cried the a&ction and benevoleace of his
' the kiapJiim, that he might \iu< his PretogD"
< tive fnr bis own Supply, and the Defence of
' bit sabjecik'
4> To the lord Conwaj, in a discoone, he
had mid, ' That if the Pariiatnent' (meaning
the last Parliament) ■ should not grant a rom-
'petent Supply, that then tlie king wat ac-
' quitted betiirc God and maa, aod might us«
' t^e authority put iuto his hoiub.'
S. Tliat be did say at the Canncii Soaid, ' If
* the Puiiameiit should deny to help the king,
< he would take any oiher way he could br tiu
< maiesty's service and sMittauoe.'
His Etprettioiu after the Parliament «et<
MO:
1. 'That Ihe Pariiancnt had forsaken the
' luD^ and that the king ihouU wu auffar biin-
TOl. IIL .
(144)
' self 10 be over maslared bv ^lie frownrdness,
' olislinnL-y, and ^tublmronesj of hi> jitiiple.'
S. * Tliut if his miuesty pleased 10 employ
' Forires, he had s^me in Mnad that iniglit
' terve to reduce this kini;duni.'
I'be Proof) for the Scoit Pariiculnrs nera
1. The lord Traquair, whi was indeed very
favoornlile to the IJird Lieuteiiant, and spake
Dolhiug 10 Ins disadvantage but what was icrew^
ed from him : with much dilHculiy lie told them,
That «hi--D he gave in the Deoiiiads,' he bc^iril
lilm say, ' That it was high lime for the kinj; to
' put lumselfinto a^ture of war;' butUial
Gr<t aJI tiie council of England said the lanic ai
well as he. 2iidly,1'lu)t it wbi a double supp.o-
sition: 1. That ijie Demand) were irulv given
in. !. That there was na other remedy ijt but
arms, to reduce them.
S. The earl of Morton's lestimony (beiua
sick himaflf) was produced, and it was one and
the sanie with (he Article.
3. Sir Henry Vane was eianiined, who de-
clared. That he bad heard tbeLii uteiiaiit to ad-
vise the king to an Offdiwive War, when hit
own judgment was for a Defensive.
4. The Testimony of the earlofNorthumber.
land was produced, which was the very snnia
with ait Utnry Vana't.
5. The Treasurer of EngtaDd deposed the
same nith Traqiiair.
6. One BeanefromTrelaiid told, That heha4
known aliips seized on there ; hut by whose pro-
curement or warrant, be knew not.
To the Articles about England ;
1. Sir Robert King and lbs lord Raoelagh
deposed the tame, That sir H^beit King anti
the iQrd Banelagh had heard sir George Uatr
cliff spenk those words iu the Article.
a. SirXlobeitBoriiiglon,ofsi[GeorgeWeut-
3. The Priraate't TeMimony (who is sick)
vrns the same with llie Article.
4. The lord Conway deposed the same with
the Article.
5. Sir Henry Vane deposed, he had heard
those wards spoken at ibe Council Board.
For the Words spoken after the ParlismeLit :
To the fine, tirl bu. Jerniyne, lord New hurji,
carl of Bri.tol, earl of Holland, were examined,
Bristol did mince the matter, but Hnlhind's tes-
tiuioiit uus express, because of the exceeding
grc^t love he carried to the man.
For the htit, which were the most dangrmut
Speeches, (about reducing of this kingdnni)
there was only sir Ilenrj vane's testimooy;*
* " The ruin tliat last art brought 10 ihs kin^
was irreparable ; fur, besides that ii served (liew
uim (which no question they had discovered be-
fore) to urove those Words against the earl of
Slraabrd, Hhich sir Harry Vane so pnnaualiy
remembered ; and besides, that it naa matter
of horror to the counsellors, to Gnd that ihej
might be arraigned fnr evety rash, every incfMi<
itderate, everj imperious eiprcsiieq or wocd
they had used tbeiej and m nade theis tao^
4z
U4S] STATE TmAIS.lliCaKm.Et1.i6V>^TnalitfthEai^Sln^ijnt, (1444
»ho declnrcd only thus, Thnt he had heard ei-
ther ihose words, or the like.
Here someof the Lieu ten an I's ftiends thewed
tbemwives :
1, Tl* lord Savil, who desired of sir Wenrj
Vane to know wheibcr he said ■ their,' or ' thi»,'
CI ' that kingdom ;' and withal laid. It w««
vert hard (o condemn a man fur Treason upon
lucu petit circuinitances.
S. The earl of&iurhampion desired to know,
•'hether sir Henry Vmic wivild eweur ihase
«iatd* posilifcly or not. Sir Henry Vane said,
: it banisl)ed for
ever ail future freeiiorQ frum that board, and
those persons, from whom liis mniesrj was lo
•xpect advice in his grente.t strcighia ; all men
Mxiifying themselves, ' tl^at they were no more
.' ol)li)(ed (o dthier their opinions tliere freely,
* when they might be impeached in another
' place, for so duine;'aDd iheevtncinEihii so use-
ful doctrine,niu with out doubt mo re the design of
thine grand msD^en, than any hope they had,
of receiving furtliar information theti'by, than
tbey had before. — And tor iny part I must ask
leave of those noble lords, nho after the king's
cbnsentgavG themselves liberty to beeiaiiiined,
to say, thai if they had well considered the oath
titey Wd taken when thev were admitted to that
•ociAy, which was ' to Lecp secret all matters
* committed and revealed to thern, or that
* should be treated of sccreiiy in council,' they
would not have helieved, that the king himself
could have dispensed with that pore of their
OBlh, It is true, there is another dause in their
oath, that allows them witli the king's consent to
rereal a matter of council ; but that is, only
what shall touch another coansellor ; which
ihej are nnt todo without the leave of the king,
or rhe council." Lord Clarendon.
Thenoble historian relates in n lively manner,
the scene which took place in the Elouse of
Commons on youn^ sir Harry Vane's disclosure
of l)is having purlomed his father's Papers; (sec
p. 14S7) and assigns I be tbil owing causes of old
sirll. Vane's enmity against Strafford : " Sirll.
Vane had not fur to look back to the lime that
the Earl bad with great cBrnestness opposed his
being made Secretary, and prevailed for abate
s month's delay ; which, though It was done
with great reason and justice by the Ead, on
Ibebehalf of an old fellow servant, and hitvrty
good friend sir John Cuke (who was to he, and
aftrnvards was, removed to let bim in) yet the
justice to the one, lessened not the sense of nn-
■ kindness to t)»e other : after which, or about
the tame time (which it may be made the other
to be the more virulently remembwed) being to
be made earl of Strafford, he would needs in
that patent hriva a new creation nf a bamnj,
and was made baron of Knby, a house belong-
ing In sir Henry Vnne, and ttn hnnnur be made
Account should belong to himself, which wns an
nctof ihemostnnnecessaiy provocation (though
lie cimtemned the ninn with marvrllous scorn)
tliat I have knoHti, and I believe wu the chief
•ccawon of the loss of his bead."
Pasitively either tbem or the like. Tbe Earl
replied, That under favour ' those or ibe liks*
luld not he positive.
3. The earl of Clare desired to know what
>uld be meant by ■ this' kingdom ; for his part
le said), lie thought it meant of ll>e kingdom
of ScollsiKl, to which the word ' this' might
very well be reUtive, thnt kingdom being onlj
mentioned in ibc preceding discourse: and tfaat
' e was tlie more ready tq be of that (^uian,
ecause he could not sec by what gnimmatkxt
onstruccioD it could be gathered troio bis
'ords, thnt he meant to reduce England, which
either then was, neither is now (God be thant-
edj out of ihe way of obedience, nor upOD re-
bellious courses.
The; at last concluded the Charge, Tlut the
Words were so monstrous, that to acgniratc
was to allay them; and ihere^e tbey
would simply leate Client to the JudgMSnl «
the Lords.
The Lieutenant's Reply was,
Tliat thuugh the heaping up of those Artidrs .
had put him to a great confusion, yet be woqU
endeavour to bring his t\nswer bito tba best
lethod he could ; and first he would repU to
the Proof, then add something in eeneral Ibt
himself, in wliat a hard taking and lamentable
condition be wns, to have his private disamrtes,
bis most imimale and bosom friends, leiucbed
and sifted to the lenst circtmnstance, that be
might seem guilty of thai which, by Gt»d*s u-
sistatice, he should never be.
To the lord Traquair's and the deputy's De-
positions, he ihought their Prools did not motji
stick upon him. For upon the Suppotitioiis,
1. That the Demands were true ; &. That thej
wrre not justifiehle ; 3. That no other couna
couM prevail ; He could not see what other
advice he could possibly give the king, iban to
put himself into a poiture of war, especially
seeing then there were frequent repnitsoftbe
Scots invading or entering into England ; imr
was he of any other mind than all Ihe reM at
the Cimicil -Board.
For that of Morton's, he doth not poMlirriy
remember the Words, but if the B
the sword, and other means bejog first ewayc^
which is ever to be supposed I
For sir Henry Vane's and North BmberUntT*
Testimony, alKiut persuading of aa oBensTa
war, he said, He remeoibered it very well, and
ihnuelititasfree for bim to give tuaopinioa tor
an offensive, as they for a defensive War; Opi-
nions, said he, if ihcy be attended with obsti-
nacy or pertinacy, may make an heretic, bat
tliat they ever made a traitor, he never heaid
it till now : nor, under fatour, shonld I be as
heretic either (said be) ; lur as I was ibe«, f«
am I now, most willing to acknowlei^ mj
weakness, and curtect my ermn, wlieraof do
man hath more, or is mote seosibla of them,
than I myself; yet^ ifthat opinba of mine bad
be«n fulJoived, it might jwihapt havetfiMcd ■■
ETATE TRIALS, l6CaMtLtat_l&40.— for High TViomh.
14U]
■ome Monej, laid he, Mid tome Kpaiacioi
of xliicli we have been prodigal enough.
For the lut, about the Shipa, it prove:
thing : but he noold willioglir confess, thnt
thius were thera detniued, and that by liimself
«nd his own diiectiim, as Vice-AdminU of Can-
naught, hut it was at tlie t.'aiiinnaiid of the Lord
Admiral the ear) of Nonhumherlau^ ; and pro-
duced his Letter to thai purpose.
To the £jiglish Prouf: lie marvelled much
hovr sir George Raccliff's words could be put
upon hiin; Sir George, though alledged tu be his
basaai'fricnd, j'et, had thoughu of his onn, and
be, the earl, might have other thoughts in liis
lunom, aod use other expressions than sir
Gtorge UatcliO'; No man, said he, can com-
inttTreatnn by big Aliorney; and should I, b;
mj friend sir Georga, as by a proxy I
For his Brother, he never knew him before
Mrash; but that was nothing to him, except
they could prove a nearer idenrily than natura
hod instituted, and that bis brother's Words
and hi) were all one : yet withal he conceived,
that his brother's word] niight be very well un-
dentood of the Scots conquering England, hut
not at all of the Irish ; and so he wished with
ftU his heart, that tie hid tiot spoken something
which is like a prophecy.
To the Primate's Testimony (with all rever-
Mice to his iDtegrity be it spoken), be is hut one
witness,, and in law can prove nothing : Add to
ihia (said he), that it was a private discourse
between hitn and me, and perhaps spoken by
toe tenlendi gratia i and how iar this should
be Uid to a man's chai^, let your lordships
Yea, this wems to me a^aiost humanity it-
eelf, and will make the societv of men so dan-
gerous and loathsocie to as, that our dwelling-
houses will be turned to cells, smd our towns to
desarts : That which God and niture, oar
Tongues, hare bestowed upon lu, tor the greater
comfort of ventiog our own cnnceptiuns, or
craving the advice of wiser and learneder men,
■bonid become snares and burdens to ui, by a
curious and needless fesr ; yet ifwy Words be
taken, said he, with all that went before and
fallowed alter, I see no danger in it.
To the lord Conway I may reply the tame,
with this Addition, That it u u very natural
motion for a man lo preserve himself; every
creature hatli this privil^e, and shall we deny
it to monarchy, provided this be done iu a taw-
fui, though in an eitraordinery nay? This
cnin of salt most be added to season all my
To that of sir Henry Vane, of offering my
Serrice ta the kine, I thank him for the Testi-
inony, and think n> hath dope me much ho-
nour thereby ; but if ha or any boity else da
■uspect that bis majesty will employ me in un-
lawful enterprizes, I shall think them more lia-
ble to the charge of Treason than myself.
To the subsequent Testimonies, I shall not
need to wrestle about them much, only tl« last
pf Hr Henry Vane's pinches, and hes sore upon
me ; but to that v>b>ch the eari of Ciare, wd 1
[1440
thank him for it, hath said alrendy, give in*
leave to add this. That the Testimony of «nc
man is not a suificient Witness, nor can ft man
be accused, much leas condemued, of Treavon
upon tliis ; and lor that read the Stat. Hen. 7,
12, andofEdw. e, 5.
Now, luy lords, (said he) to give yoo further
satisfuctiou, I bhnll desire all tlie Lords of the
Conned which »ere then present, only to the
number of eight, may be examined uhether
they heard these Words or not; tor the Arcb<
bisliop and sir Francis Windebank, ibey caimot
be had ; sir Henry Vane gives die TeMimoDy,
I deny it ; lour only remain.
1. Theeail of Xorihuniberland's Testimony,
which was rend, had declared eipresity, that ha
had never heard those Words, nor any ]ik»
them, from the lord Strafford, but he spake with
great honour and regard lo the kingdom of
England.
3. The marquis Hamilton, who declared
upon his oath, that he had never heurd such
words, but iJint lie had heard the Lieutenant
oAen say, that the king was to rule bis royal
power font^tijc ttcatte; that it would never be
well for this kingdom till the prerogative of th«
Crown and tlie Privilege ofth* Subject went
in one place together ; and that Parliam^ii^
were the happiest way lo keep a correspond-
ence between the king and people.
The very same was delivered by the Lord
Treasurer, and the lord Cottington,
Now, my lords, you may marvel how theM
Words rested only on the -ears of air Henry
Vane : but, my lords, (taid he) ttut 1 may r»-
move all scruple from yoa, I will make it eil-
dent, that there was not the least intention that
the Irisii Army should set a foot in England ;
and then, I hope, yoii will conceive that I bad
no meaning to reduc« this klogdum.
This he made clear by the Testimony of Not^
thumbcrland, the Oaths of marquis Hamilton,
lord Cottington, Lord Treasurer, sir Thoma*
Lucas, who only nefe privy to (hat matter.
For other of my Words, my lords, (said h«)
I desire yon would not take them by halves; if
so, who should be free from treason ; Cer-
tainly, if such a precedent t;^e footing, West-
lain Iter- hall shall be more troubled with tre»>
son than with common-law ; look therefor*
to the antecedents and cunsequeiili of my
Speeches, and yon shall find the state of tM
question clearly olteted: tlia antecedents were
upon an absolute or inevitable ueceasity, tipou
a present invasion, when the Remedy of a pania-
ment cannot be expected ; the consequents, for
the Defence of tlie kingdom, which accouDti
afterward to the parliament. The qoalificft-
tions too in a lawful, convenient, and ordinarf
way, so far as the present necessity can permit.
Add but these, and which of^ou are aot of my
mind? Is the king endowed with no power from
the Lord i Is he nnt ' publicus inspector tegni f
Stands it not him in baud to do something on '
present necessities f
And that thesi
prortd, over atid
I his words, be often
apin, by tA* inarqu's,
b; th« Lord
Jcrtntrne.
M^ lotrfs, what I hnvc kept to the tait (snM
he) IS Usn, and I woaM intr«Rt >iiti serionslj
V> think of it: If n mRfi's table, liis btd, h»
bouse. Ills brutlifr, his friends (and that tOi>
■Iter t'ley ha>* enea an oath of lecrrejr) arc to
be ntcked tu fiiid uut Treasim agiiriin him, who
what ii
what rartlily man
1447} STATE TKtAI:S, ISCrarlbsI. 1640.— Triai if At BitI if Slregbrd, [1441
, Cotti\);non, sit Tho. Nnrtto I tee how I taa celinble of TrcMon,
unteaiit be treuon for dot beiii; iofillihle;
1, my lords, jon h«»« tbi! mg of
mortality' before jou, londeii wnti tuanj in&rnii-
ties ; tliough yoa pnll this into riireds, jet ihne
is no peat loss; jci, there may be a grert
gain, if hy the anTiie I may seem to haVe tm^
"'miinjto the worW of an
iirsrdt God, and » mo-
luie loynlty towardi iny pHacc (wtiicb bavs
e»er been mj only pole-stars m ihe whrte
course of my life): and if by EpiHing of ibiDP,
there be not ti way found how to trace not the
blood of the nohMttt (which J hope your fcrt-
ship! will took to), there is no diindvuitBge at
all sntfered by the loss of me. (Yoo hate la*
*ery norrli ns nearw I couid recollect.)
TueMlaj was a day of rejt.
Apnl r.
Upon Wednesday WliUUck dtttged iIuh:
TbatdieprecediiiK Artidet were of «a bi^ ■
ccHuequence, and of so iranaceodeH a natve,
tl:ac uotliini waited to make up ike petfat
measure of the most bortid Ire«on and bmb-
itrous atteiBpt that ever by a natrve wai i^
tended ai^Hiusthit king aod couotry, by|Hittw
these designed projects into eiecntioDi «)udl
iuA undoubtedly happened to the mmuid «ib-
venioD both of C burch and Scatc^ kad n«tlbt
clemency and goodnesi of tbe prince, aad tbi
piety and caretulaete of ibe well-afccud peen^
timously foreicen and pnrtiited the aa^:
that aull ifae principk* oftynooy artd of^KS-
■ion had lodf^ wiihin his bnaou, andthercfm*
had burnt forth into these Expressions and Ad-
vices contained in tire followiag Anidcs;
■here first in the Twenty-fifth they cfaaqed
him wilh ibne things :
1. Th»t he bad advised the kine to » rifo-
rous and unlawiiBl exaction of Slnp-Moiwj.
a. That lu hadgivpn conniel, Tltal d^
Sherifis should deny tli^r best eudsBvonn and
aseistances to that effect, tbey shoaM be aeM
for, nad be fined and unpri«oB«4 by tbe Sop-
Cluunher.
3. That when the aldwaen nf Londo* fa^
in all humility represented tbe caases why d«
Sbip-Moacy coald not be collecied sutoagst
them, and bnd pvea in I he Heasoaa why tlK^
refuaed to fpva la a list of tlieir Naraes, wiihia
tbeir city, wbo were able to afford the Lea>>
Money; he in a coatemptuon and iTTaaiKal
manner, in tbe face of^ Conncil-Boaid, W
•aid to the king : * Sir, these men, becaow «f
' their obstinacy and frowarditcH, itamvii
' very well to be ined, raniomai, aad laid bj
■ tlie hedi; and it wiU never t[« well wiib j«Mt
' service, until toina of tiKm.fae bailed »p far
' exampiea to othen.'
The ProoB were these :
1. The bishop of Lmtdon Lord Treasww,
who declared, Tliat he retnetnbered the n'oidi
very well, that the IiOrd-Ueutenaot had advised
the king to cause tbe Sfaip-Mone^ to barn-
thered in ; but be remenibered withal. Oat
both tnmelf and all the Council had doM tL*
ihall pn^s tree from treason > Let my inisf<ir-
tnoe, my lunls, be your adreriisetnent ; yonr
Wise anceiton were gUd to put haurls and
UiBits to this liou, TnMsnn ; if von gii-e him tbe
hirge scope of Words to range into, he mil nt
Iasi pnil yO[i Or yours all to pieces.
But, rnv lords, ( did never think till aov, thnt
Miattetof Opuuon sliould be objected as matter
*f TrcRSOa.
For, 1, Opinions are free, end meri may
art^ue both tya mid Con, in iJi I'acultiei, witb-
eut any stain of reputatioti ; otherwise all con-
•ullations would be vain.
?. I may be uf anoiber Judgment than I de-
cbre mvseir, to be, of opinion, perhaps, to
gtin bettw Hipiments ht Ihe lURinlenance of
my own groaods.
3. Many, and myself oftentimes, haw pn>-
poanded my Opinion; yet upon hearir^ better
Judgments, have presently ebnnged it.
4. We use tu strain our Opiuions too high
sometimes, tlmt we may meet in a just moder-
niion with those whom we conceive in the
«her etlreniity to be too hjw.
5. It It expressly eammunded by the Stat,
Heo. 6, 9. Ttidt tlioash a man should niT,
•the king is not UwftI beir to the crown,
* and may be deposed,' yet he is not to be
charnd with Treason; tint nnlv with Felony ;
•irf I hope, nly lords, lliose Words- arc of a
more transcendent Snd superhitive nuture, than
any alfedj^ by me to be spoken. Bat, my
fcrdS, (said he) Hy it to your hearts, it must
«omB in yoB ; yoa Mid your ponetity are they
whom God nnd Ratuie, biith and edixation
kave fitted to beaoti^ the reynl throne, and to
sestain the weighty a£hirs of the kiDifdoni ; if
to pve your Opinions ia puliticul adcatiung
■hould he Bccouiitcd Tretisoo, who will be wil-
litig to senc the king, or what a dilemmiv are
Jton in i If, beiu^ sworn counsellors, you speak
BOt yonr iniuds Freely, you are convict of Per^
joty; if you do, perhaps of Treason. What
detriment, «hnt iiicommodily shalifatl to king
m>d kingdom, if this be permitted ! which of
yoa hertnfftrr will adTcnture, yen dare adveo-
Ittre so moch as to help by ynur Advice, unless
you be weary of j-our lii-es, your estates, your
postiiity, yea your very hfinour? Let me nev-er
live longer tlran to see this con'Dsion — yea, I
may say it, tliis inhumtinity in England. For
ftiy part (my lords], I here confess mvielf, I
ever have, and eter shall ^peak my opinion
freely in any thii^ that may conci-ro the honour
■nd safety, eilher of my gracious king or nly
, dear country, thougb the 8«oril be iwo-ed^prf ;
fbaring rather Hitn that killeth the soul, than
Wioi nlune pow«r reaches only to the body.
14t9]
Vkt; Biid Utat it iTBSvpHMiB present tienMity,
•ndtleTKct ornitMie;r for eotertftiniog the Armj,
which (liM ooitdition of tlie^timea coogiderMt)
the; all conceived waa b J nnymeaiii tobekept
00 foot.
S. Al()eTTnHii Wittxion dechrrd, tbnt upoD
an tiuable Rentonstraiice Inudc to Ibe CiMincil-
Board, tiie City would tike it ill, if a Tux-Roll
tliouM lie deliTEred of their cstatn irlio wf^c
thouEkt able for t[,t Lnan-MoncT; ttic lord
StrafrirdaaidiTlKjonglit to b« fined, ruu'inied,
and Inid b; ihe btth : bat fur wurds of bang-
ing Aem up, he hcNrd not at all.
S. The earl of iicr^-iAi're decbired. That the
krd Sirafliird had said. That upon tite refasal
«f such n Serrice «nJuiBed by (he king's pe-
temptory command, it was his ophiion ifaej
■ight be (inEd.
4. Alderman Garmay attested the precrdFng
Words ; and nitital added, dist the Lord Lieu-
tenant, to his best remembraiice, had »id, ' It
e well furtbe king's service irsom* of then
* were hanged ap/
They closed the Charge,
tifnl ^nrssinns fac haJ injured die propriety
They closed Ifae Charee.That by snch nndn-
of the Subject, and had put such dmcontent
upon the City, that tliey ^^ere dre less willing
n^n any occasion to concur for the odraniBge
of the king's service.
The Lieutenant replied,
1. That ihough all the Charge were in tie
most strict and rigid way or sense teriGed
against hiin, yet he could not conceire by what
inlerpretation of Ittw it could be reached home
to High-Treason -. and to that common objec-
tioD (that the Trekson was not mdividual, but
accumuhttire), he replied, Tliat under tavour,
he thought, tailing in that mnnner were at
much as to sa^, noTreamn at all. Because, 1.
Thnt neither in Sininte Law, Common Law,
lior Practice, there w.-ij eftr till this time heard
(tf such a matter as neeumolarive Treason, or
■ Treason by Way of conseqopnce; but ihnt it
IS a woi d neivly coined in attend a ehnt^e newly
tnretrted, such an one Rs never nas before. 3.
That Treason was a thing of a simple and spe-
cificative nature, and [htrefore conld not be su
byacctnunlBtion: bin eithermust besoinsome
or either of the Articles, or else conld not be
so at all. 3. He did conceive that it was
against (he first priiiciples of nature, and false.
That an hsap or accumulation should be, and
not be, of homc^encnui things ; and therefore
that which in its first being is cot treasonable,
can neter confer (o make up an accnmulatiTe
treason. C«inu/u«, an Heap ofOrain, ao call-
ed, becaase every, or at least some of the in-
tfviduals, are grain ; if olherways, an heap
it may be, but not an lienp of gmin. Juat
>o, perltaps, tlipse Ariicleii may male up
an heap of felonies, oppres^ioos, errors, mis-
demeanurs, and sucli like (aud to the thing
itietf I shall g^ve an answer, when ander
■hat name they shall be charged against me) ;
bat they can do ways confer to the makii^ up
ofTreason, unless some, at the least, be Trnsoa
ia tba individual.
9. That the TeKitBoaisi
wFre all of them single, ni ,
Ihcrdbic tMuld Slot make Mtti in matter af
rfc^t, aiactC IBH in mutter sf life and d«mh{
yea, that it whs agointt the itMUte WprM^rfy, '
to impMtA a mail of lli^ti Tieaion aiider iti«
evidence of two IkiDuiis Witnesses, UiMrh ■*■■
to adjudge and contitme hau apon Mtestalion
of one.
3. To the LonI Treaturer's Tntitnony, b«
did with all Ills heart condesoend unto it ; bM
upon these grounds bniy, I'bet thare *a.t N
pr«ent necessity of Enouey ; that aU the Cuun-
cil-Boaid had so voiced with him, jva, belutc
himself, and he idways thousht it pnaomptioM
in a man not K> fiillow tbe wiser and i»ora jadi>
cions : and thtit there was then a Sentence at'
the Btar-Chamber fur the right of paying Ship-
Money. For his parr, he wonld never be ntofc
prudent i^n his teachers, nor gn« judgment
against the Judges. And therefore he ttmagbt
it not far amiss to ndvise tbe king for the col-
lecting of that, wluch by law was hia own, ia
such D present and urgent netxseity. And >(•
though his opinion (end it was no more) had
been amiss, he hoped that though in Case of
&eIigion, being attended with stubbornness and
perCinacy, it might come home to Gemy, yet
m liis case opinion could sot reach m 1st at
Treason; nnless it be Treason fir a man to
speak I
omh t(
4. For the Words abest fining, ha had nl-
raidy acknowledged them in hh general An-
swers 10 bs true; but with these qualificw-
tions, that it was his OpintoB on^j tlmt it
was upon the refiisal (as he conceived) of a
jmt service that be had i^kcn tbem, by no
means to prejadice tlie citizens, but to (uake
tfaefn the niore i|uick and active in the king's
service; that no ill conseqoence happened upon
them; that they wen wtirds might have beeD
spared indeed, but innocently, thoagb tuddenly
spoken, which he hoped might proceed fitna a
man of such a hasty and incircnmspect hnmour
as bhnself, (made so both by nature ami his
imidi infirmity of boily) witlMiut an^mindsA:
all to trcaion; and that if all cholefic expres-
sions of tbat nature shonM be acctrunted tre»-
fonable, there wouM be iii«t« suits of that hind
fly tip and down Westmintser-Hall than cmh-
5. To those Words attested by the AM«^
mati, he positively deni«d tbem; and hoped
tjiey ihoufd never rise up against hipi in jodg-
laetft, hecanie the tasthnmiy was tinfile, md
not positive, but only to his best reinenibnnca;
unit that it ms extrnding stnitige that no ntm,
neither of the council or any other alderman,
t.'erefo quick to observe tliein,batonly alderman
Garway; which he thousht soffit^t to ncHil;
that single testhnony, except be could deaon-
■trate himself to have soni« rare and singotxr
fhculty ofliearittg.
In the dole he dented the Lords, frnm Im
misfortoae, to provide firr their ovni nflny, ootl
MrJQusly to cDMidcr whn a way wn ctnlkM
«uCta rum them both in.thcir lives nndcatxtes,
il'for ererj 0)imiDn given in Council, or Words
■uddenl; or bastilj spoken, Uiev (wlii> are bom
to oield tlie great iffain ol the kiogdum) thould
be arnigiicd and seQleoccd bi tmlun.
Tbsn tlwj vient to the SSih Aiticli
cliar|cd thiu:
That the lord Slraffurd, havinj by his wicked
Advices exhausted tlie king's Tren<iurj, did
also counsel hini, 1. To imbase the (Join by
ao allay of Copper'moiieT. S. To te
all tbe BuUioo in tlie Mint. 3. Tbi
coune with sume of ihe Aldennea about tluLC
business, hn ha't said, The ciiy wat mori;
to countenance and relieve the rebeli tliL
kiug; and tliat the liin|[ of France did i
manage Mcii businesses, not ty
retjuesla, but by seDditi^ faith but
tu take account of meni ettatea,
with troops of b'lrsei.
Tbt Proof:, were :
1, Sir Thaitat EdaareU, who declared. That
id discourse with tbe lord Strafford, having re-
monstrated uiiiu him that their goods were
■eiied on beyond seas, because of the atoaey
taken out of the Mint, he told hini, ' 1'bat if
* tbe Londnnen suffered it, it was dessn'edly,
' because they had refused the king tt small
lelp tbe rebels
1451] STATETIUALS> ISCrabLssI. 1640.— TWo/t/iJleAiWq^an^onf, C14U
at York t For having understood Umi«, tliai
the city of London were willing to make sLma
of mouvy, lie tbere, before the greet council of
lhe.pe*n>,exprcssedliimselfto thisscase, 'That
' the Londoners had Bufficiendy made up all
< tlieir delays hitbcrto by Uieir act; ihnt ibe
' king was obliged to their forwardncu; and
' thnt he himself should he ai ready to *er«e
' tbcm M any poor getitleinon in Ennlund.'
About the other Words, be said. That being in
confereace with some of ibe Londonen, ibeie
came at tbnl time to his hands a Letter from
the earl of Leicester, then at Paris, wbercu
were ilic Gmeiles inclOied, reporting that tbe
Cardinal had given some such Order, aa (a
levy Money by farces. This Le said, be oalj
totd tjie lnrd Cottinglon standing by, withuot
tbe least application or intention cuiM;enuoz
tlie English nffiura. Cotliogton being ex amiacd
upon this, declared t^ same in ibe same DianDer.
S. To sir Kalph Freentan, he said, Tbat bis
teiliinony did not concern the Charge at all;
nor did he think any thing amiss in It, thoa^
he liad said it : If tlie scrrants of the Mint re-
fused to work Hccording to directions, iLey did
deserve the House of Correction ; cor was it
treasonable to say, the king might use th>t
house for (he correciioo of his servauia, u well
as any man in the city for thein.
4. He said that there was no great tikelifaoad
(hit he bad comiiiitted real acta of Treasoo,
when hJB adverse party was content to trifle
nway m iniich time about Words ; beitber wa*
there any treason in them, thoo^h tliey had
been fully verified] end therefore u tbnt^Min
all other Articles) he reserved a power for bis
counsel to dispute in matter of law.
They went to the S7tb Article, and cbatged
thus ; That imcaediately after bis appointment
to beLord-UeuteoButof the Army fiim in £n^
land, he shewed what principles of Arbicraiif
Government lurked within his bosom ; for bj
his own immediate authority, without ud
against Uw, he bad laid an impost of uoaey
upon the king's iubjecti. Where they meatioa
tliree Particulars:
1. That be had imposed Sd. prr diem upon
tbe county of Yorii, for entertaining the Traioed-
Bonds there one whole month. — 3. That he
had sent out Warrants for collecting the Nuae,
and threatened to imprison such u should re-
fuse to pay. — 3. That he said, Tbat it was ■
crime nigh t6 tbe crime of High-Treason, not
to pay the sune.— 4. Tiiey added. That in his
^enci^d Replies he bad brought two ihinn for
his Defence: 1. That this money was fieclj
and vuluotaiily offered by those in Yorkshire.
S. Thnt the Great Council of the peers had
notice of the same.
To the first (hej answered. That • Petiiioo
wns indeed preferred by tjie Yorkshire men,
and a month's pay offered ; but that the loni
Strafford had refused to present tbe same, upon
this exception only. Because in the same ihey
had petitioned for a Parliament', wherebj be
evidently declared what liale incUnMiwi betad
to that way.
' he tbuugbt them
■ thou tJie kinu.'
3. Mr. Po&ier declared that he spake
thing about the king of France; but wbeiher
with relation to England, or not, he did not re-
3. Sir William Parkiie attested in the tame
words; and withal, that the lord Cottington was
then present, and could declare the whole busi-
4. Sir Ralph Freeman declared, that in a
discourae with the lord Strafford he had said,
that the sefvantj in the Mint-House would re-
fuse to work the Coppec- Money j and he re-
plied, ' That then it were well to send thoM
' Servants to the House of Carrei.-tiou.'
They closed the Charge, That by such nn-
dntii'ul Cuunsel and Words, he had given more
than auScient proof of his design and purpose
to subdue this kingdom, niid subvert the funda-
mental law and privileges'of tbe same.
Tbe Lieuten»ni's Reply:
1. That ha expected some Proofs about the
two first liorticulars, but did bear of none ; and
tbat it was no small disadvantage lo him to be
chained with a great many odious crimes by a
Book, printed and fiyiog from hand to hand
through the wliole kingdom, yet when they came
to prove^ tbere should be uo such thing laid
agamst him.
3. AbouttheSpecches: Hcingenuouslycon-
fessed, that some such thing uiiglit perhaps have
escaped the door of his lips, when he »aw their
backwardness to his niajfsiy's service; and as
the times were then conditioned, be did not
think it niDch amiss to call that Faction by the
name of Rebels; but he thought he had abun-
dantly satisfied for that over'tigbt (if it wu toy)
vGoogIc
f45S]
STATE TRIAUS, 16 Charlm 1. 1 04O.— /or High Trtatm.
[1454
Td the teconit, The; appealed to all the lord*
preseDt, wbeihcr nny such order did pan tie-
liire the coancil of the peers M Yort^
The Proofs werejl. A Warri.iiC issued by
col. PennyTiian for cliis inonej, and nnother by
tir Edvtiird Osborne. — S. Sir John Burrons,
who declnred ilmt he wns Clerk to ihe Great
Council, but did remember of tio Order ; and
wicbnl ndded, that it mijiht havir passed at that
lime when he attended at Rippon. — 3. Mr.
Donston, mho declared tbnt he Imd known
that money alevied by tone musqueieers. — 4.
By air William Ingram, who dnslaied ihnt he
bad heard ibe Lieutenant say, ■ That iS refuse
' the same, cnme nigh to the crime of High-
• Treason.'
They txjncluded the Charge, That by these
pHrticuUn it ivas mure than evidtnt n-hat un-
happy purpose and traitorous designs he had to
subdue ihti kingdom, nnd subvert the funda-
Oieutal laws and privileges,
Tlie Earl replied, Kir^t, to the Petition, That
it wits true, a Petition was drann up by the
Yorkshire Ocntleinen ; and as true, that he had
refused to present the enme, because of that
clause about the pariiainent. But the mntier
nas thus : At his majesty's coming tu York, it
was llmugbl necessary for the Defence of that
Country, to keep the Trained-Bands on foot,
because the enemy was upon the Borders; and
therefore the king directed bim to vrite to nl!
the freeholders in Yorkshire, to see what they
would do for iheir own defence.
The time and place were designed by the
king; but the night before the meeting, a small
number convened, and in ■ private and factious
nay did draw up that Petition. Upon the
morrow, 01 their appointed D jet, in presence
of the whole number, the Petitiim was present-
ed to him ; where he did advice ihem to leave
out that Clause, and ihnt because he kuew tlie
tint;, out of hit own gracinns disposition, had
intended to call a Parlinmenr, which he desired
should mlher be freely done, thnn upon the
constmiiu and importunity of Petition*; More-
Aver, it would seem a mercenary thing in them,
Bt one and the same time to offer a Benevo-
lence, and withal to petition for his tavour.
Upon this Remonstrance, they were all willing
to recal tbe Petition, nod directed bim by word
of CDOutli to uffer unto tbe king the month's pay
in their names ; which be did accordingly in
the presence of forty of thnu, to their no small
■dvaiUaee.
Tliis he proved by sir William PcanTinaD,
ur Paul Nenle, sir George Wenlwarrb, sir
William Sarile, sir Thcmaa Dauby, who all of
Ifacm declared as much in ample terms; and
withal added, That nothing wns done upon
better grounds of necessity and obedience than
the ofl«r of that Money, and that they never
had heard any man grudge against it to this
For the Second, about the Council of Peers,
he alledged, ihatfae never made mention of anv
Orderof theirs ; but he remembered very well ft
waa twice propounded befiire them, tin
the
king had approved it at that lime a just and
necessary net, nod none of the Oiuncil had
cuniradicied it ; which he coiiceirctt wt a tacit
approbation, and an order in equivalence.—
But though that had not been, yet there was
nothing done in tie business, boi at the special
desires of the gentlemen themselves, and for
cheir necessary delence anil piiitcctiou ; yea,
though he had done it by himself alone, yet be '
cunceiveU he had so much power by his com-
mission (causiiw the commission to 'that effect
to be read.) That albeit he should mistake bis
commission, and do some inferior act beyond
It, (because military pioceedings are not always
warranted by the common law) yet it should
not be imputed as an act of treason to him.
(And to this effect he read a Statute 7 Hen. 2.)
Tothe Proofs: 1. Cot. Pen ay man 'a Warrant,
or air Edward Osborne's, it nothing concerned
dim ; and he doubted not but ihfss worthy
gentlemen could justify their own act, and that
he had enough to do to answer his own misde'
meanonrs. — 3. For sir John Burrowes, he was
at Rippon when the proposition was made. — 3.
That as the Warrant, so neither the execution,
troubled him at all.--4. For ur William Ingram,
he was but a single testimony, and that such an
one too, as he could produce an Evidence to
testj^ he hud mistaken himself in his testimony
npon oatb, it' it were not to disadvantage tbe
He concluded. That lie had done nothing in
that business but upon the Petition of that
county, the king's special coiumnnd, the con-
nivance at least of the Great Council, and upon
a present necessity, for the defence and safety
of tlie county. — And so much fiir Wednesday,
April 8.
Upon Thursday the Committee for tb«
Charge declared that they had done with all
ibe Arti<He», and were content to wave the
last, fhr reasons best known to tItemselTes:
only sir Walter Earle added. That he had
some obsen'ations to bring forth upon the 93d
Article, which be conceived might do much la
prove the earl of Straflbrd's designs for laivling
the Irish forces in England." And they vere.
• " The seven last Ariiclea,"' snys Whillock,
Memorials, p. 40, " upon the which Whit-
lock was appointed to manage the Evidence,
were mattets of very high nature; and iotne of
them,- particularly the 94th Article, relating to
Ihe desit;n of bringing over the Army in Ireland
into Scotland, and so to England to reduce (his
kingdom. Wliitlock liavtng spoken with sir
Henry Vane Ihe elder, and with the other wit-
nesses to the 94ih Article, and finding that
their tcstimnny would not make good the raat-
terof that Article, ihought it not honourable
for the HouK of Commons to proceed upon An
Article wlicrcof they could not make a cleat
Proof, and thereupon proposed it to the Com-
mittee to omit that Article in his proceedings,
'nic Committee were of the same opinion, bit
npoD sir Walter Earle's undertaking to maaagk
t4U] STATETRUI&IOCbaKUiI. KUa—IVu/^iAefn-fyar^ord, [t«4
LetWn, nor did tbej concern tiipi aH:M« dwti
U)j of ihe houu. S. llist be nu nul bouad
to purge the lord RsueUgh from all his {mn,
and chat he luul hii awn faars loo, wliich God
furbid kbuuld be evidence of Treajou against
anj wan nbatiutTw ! 4. Tbat it seemed the
gentlenuB b»d better inroruiation frum thai
iiin|{di>m'th)ui biwielf; ytt lie «ouU not be
cooMciU to say, at, Ayie cbeFc was ucrer sudi
!i thing as s birick-houare or nurison. But ta
mncvt all (cruplti, (fur indeed the riNid or
liuiding-pltco i« not ibere lafe) be declared
tb«i it VTM Im iDlrntion lo htfe landed some
milts abovQ Ajtt, aurl made oal; bii magaj^
of that toxD. — I'o liieearlof Ar^li^'t BiWiods,
he hoped the gentletnan knew tiiej came oM
on foot •« of [reiaud, but had ibip* to waft
and CTBOtport thein^eives, aiid that oae of his
prime hauKi (Rotneih) wm niihin Kua« few
luile* of the woe trich.
Tbe lord Digbr Bnding sir Waller Eaile on
Krounct, did handtoiuelv bring him off, and told
the lordi, That ^ Uteir Prvab fur timt Artkla
were Dot yet rettdy, and thai cliis wa4 a aoiieF-
fctation anlj of tlie Charge; and that in socb
a business as the plutlinj; of Tieasoo, tL^
must be content soioetimes nith dark prufaabH'
litiet.
Then Mr. Gfyi de*i[^ the Lieutenant to r«-
wme his Defeiicr, that thej might gire a reye
1. That io
Und (hem in Waits "' '■< bji; pnrt uf i^uglaod,
fir ia Scotland ; wbicb «era aiiogettier viper'
fluuw, unieia there hid beeu Mme {Uirpiise for
tbe tawe. 3. That within two days befure the
data of the Commiuioii, iMwrs »erc aeat to
tlia b>rd Bridgewaier aud Pemfarakc from sir
Francis WuidebanU, to asaikt the earl of Wor-
oetter in ievjing liirces for Uia ting's service ;
and tbeie iniglu he lu^iptsed to have intended
a Joiuiag With the Irish. 3. That tlie lord
Rauelafh, at the ruiunff of the Irish Anny, did
fau such a design as. this. 4. That the tonu
of A^re in licotland, where the lord Stratford
preteoded be would land thusc forees, wm for-
tified with a hulwaik, a snirisaii, and block-
bouse, wbich would prohibit landing there;
and ibe earl of Armies Bounda were divided
tbeoce by tli« sea, and that the bar or ciujj
into tbe towB wai ver; dangerous and shallow.
T)« Proofs were only tbe readii^; of tbe
Commission grsiUed to the lord Strafbrd. '
The tieut«n«nt replied, 1. That liis Ci>ni-
laiaiioa was the same vcrbatiro with Northura-
bcriaitd's for England, and that it was drawn
tip by iba Couiii:It-Bourd here, and »ent over
VDta bnn; ao no h^ore deaini in him thui in
the geaUemea of the English army, ikh- no
Urger than that was put upon hioi. 9. That
this WM tbe Gnt time he beard of any such
i(, tliey Ivtt that Article to him, upon which
Wbiilock, after he bad enforced tlie Evidence
upon (be 93id Article, sate dowo ; and sir
Waller Earlc, with much gravity and con&'
deiK«, he^an to aggravate toe matters in the
S«th Articte, and cite daimeruus contequ^ice
and high crime in it, and called forth the Wit-
nesses to proi'e tlie particulars ivhich he had at
length opened^ Some of the Witnesses were
not in Eugliiud ; those of ihem who came in
being swtirn, spake little to tbe purpose, and
did not prtM'e the matter at all o( that Article,
upon H-bich the kiiif!;hl was very blank and out
ut couuUHkaiace. Uul the earl of Sirafford, wlio
lust nnailvantage of hisDefervcc, rising up fro na
bis M>at made a low obeyMUice (i» be was used
tu do) to the I>ords, and ifrakc to this effect :
' Mj lords; 1 am a poor gentleman, a prisoner
' as the bar, against whom several persons
' laartidd to lh« laws, and nf great ability for
' plendiiil, anil streaglh nf reason, and other
* nobia persons «!' great parta and eloquence,
' have eofbrced (he particular 'inatteTi of my
' Cbarge ; and I had well hoped tbey had been
■ drawing towards an end. But now, my locds,
' a sew and great pleader set* upon me, tired
' out Lefur«, H«d lais noble knight hath laid a
* beavy burden indeed upoa lay akouldeis: be
' haih opened mete beisous crimes agaieit me
* tluia all choie gentieaaaa wbo have gone h&-
' fine. Tbe lenniatl ^atleaua wm orged
' ibe matLefs of tbe last Article agviast me,
' Biban he caiue to this S4th Article, sate down
' and teented to decliae it, and yat be left
' ootlaac material vhitk was aot uifed boate
< by kin. Bu tJui uoUt ksigU (wa bejood
■ all, and, indeed, beyoud the Article iCaeif, ob'
' serving things unl lODtained in it, and impoi-
■sibletobe: and could he have proitd ibii,
' it had been truly a miracle. But I humbly
' beg your lordahips pardon, I am not wiliine
■ tn spend any of your time impertinently'; J
' shall only any this, that where Dutbioc is
' proved against me, I, know your loctbliipa
■ great wisdom nnd Justice wdl expect ao d«-
' fence from me.' After the Earl was sate
down, the lord Digby stood up, aitd in a very
nitiv rhetorical speech took off sir WaliR
Earie, desired thcli lordships to pass by a nb-
take, that this Article was not intended for po-
secution, as liiiglit appear by the geutltmau's
decliniog of it who maiuiged the biruitf. lie
moved that this 34th Article might be umittcd,
and their lordships not (o receive any futlha
trouble io the urging of it or defence to it, and
that they would he pleased to took upon nbat
that coble koi^bt had said hut as a snped**
tBtion. After tlie lord Oigby bad spoken,
Whitlock presently rose up, and (after the IwA
had done imiling) he proceeded wi(h the 9iA
Article. Tbe quseu was present at the trial;
enquired who that knight was whom the bird
Uilfhy reliered ? AikI being told bis name waa
sir Walter Earle, she said, ■ timt water-deg did
■ bark but not bite, but the rest did bite doae.'
The earl ofSirafford speaking of tteComniime
who managed the Evidence against lum, and
garticularly of (he lawyers, said to a private
iand, that Glyniie aud Uaynatd lued him hke
advQcatei, but Palmer and Whiilock nsed bin
like |i.eDtLemeD, and yet left out nothing aat(>
litl to be licked aj^ttinit hiia.''
Uir]
STA-ra TRIAIA H Chaw« 1. lQiO,~/4tr Kgk Trwm;
(14M
titiQn of^teir Chirgs, anil lo cbae tbe pn
90 tor ai csiM»rii«(| Uie Matter of Fact. ,
He replied, Thnt in cliis case all tkcliaen K
■petd BiKHi|>li; die matter tnurbcd liim oar-
rotiy, even in liis.lifcand etiiUr, yen, in thai
wliich lie esteemed above tliem both, hU ho-
nour and posterity; and tUereTQif lie cuofeaed
lt» bad DO dcwe lu rid4 fiott in uich a buai-
ue$s. That be ln*.v the Gentleineii o( the
fi|ir, if they were iu bts case, would think the
ttsap litMe e^iaueh, except their oiore aUe jadit-
lueMs cuuld sooner dispuch the rnaiter in
t>aud; and clierelur* he humbly iuireated, tliat
that da/ inii^ht be granted to nini far ttrcogihr
e«iiif; himself, aud recoUecliiig bis cboughtt
and tpiritti, and to-morrow lie would be ready
with his last Repliei for birasrlf : which, »&ef
1 little «
cended u
■mouy ai
o by tliQ house of
April 9.
Upon Friday morning, nbnuC eight o'clock,
the Lieuteoant of the Tower and my lord's
chamber-jjrodm came Co tbe Hall, nnd e^ve in-
fbrrDAtion to the house upon oath, Tliat the
lord Srrafford was tiiken ivith an ciceeding
great pain, and fit of tbe stone, and could not
upon anv condition itir out of hit bed.
Mr, 6/vn replied. That it was a token of
hi* wilfolness, not his weakness, iliaC he bnd
not sent a doctor to testily the same.
Tlie Lord Steward made answer, That a
doctor could not be bad, perhapi, so soon in a
luomtng; nor was it possible for any physician
to give a certoJa judgment concerning a man's
disability by the etone, because there is no out-
waril sympcoms that appear.
Mr, Glytt excepted. That if he did rot op-
wards, aud they permitted lo proceed.
Tlie Lord Steward replied, That the lords
had appointed four of their number to go to
the Tower, and lenm the just cause of bis stay ;
and if by any means he were able, lie should
he obliged to come then ; if not, humanity and
camindn equity would excuse him.
Ill the afttrnooti it was reported that lie was
dfiiid ; of which there can he no better reason
given than tbe humour and genius of tbe limes,
tfiat dally with ,nathine oftener than untiutbs
and calumnies: and certainly there me many
men ofhhullowundentnndiugs and weak afTec-
tions, who either will not, or cannot nnderstaud
tlie Efnllernan's worth; but out of fbnrful and
needliss apprfrhensious are so desirous lo hear
oFUmiuId any way, that tbeir hai^ tongues
will dare to Bnticipate tbe stroke ofjustice,
Mr. Olr/n |jri)tfi:rs new Proois concerning the
two-und-twentieth Article.
April ]0.»
Upon Saturdoy morning, he preseniMd lum-
Mlf at tbe bar, where he espected DOthtog but
repctitimis of C'har)!es and Defences; but mean
while Mr. Glyn prolTer* some new Proo^ con-
cernine the 43d Ankle, which the noble IrjrJ
refused, alletjing iba process vins closed, Mr.
Giyn answered, The process is not cbised, as
long OS ihe busintss stands unrepealed ; and
" lliis 4Lay an alTHir of [be utmost conie-
t)nence to the Enrl i>f Slrnfford, since it cost htm
bis liie, came before the CoFumons. Prepara-
tory to it, the doors of the house w«ra <i(d<red
to be shut, the key hrought up, and none Ui go
out witliout leave: ifacu Mr. Qlynn reported
fi'iim tlie cnramltlee in the Earl of SlraSbrd's
Cause, That thev had some further evidence ta
cor/'uborato t]ie latter pan of the 33rd Article
against biin; tliereupon sir Henry Vane, the
voiiuger, and Mr. Pjm, were enjoined by the
Iiouse to declare tbeir whole knowledge con-
cerning tlie matters contained in thnt Article
avainat the £nri, and how and by what means
tncy cBoif! by it. When they had done this, y
Paper was produced by Mr. Pym, and go much
of II read by him as concerned tlie GurtorSlraF-
furd, but afterwards Ite was ordered to rr^il it
ail. Notice bein^ then given that a Message
from tilt lufds waned at tbe d'lor, tbej irer« ^
ordered U> be culled in ; but all tlie members t^
keep ilieir seats, and none. to stir out without
leave. — The dirilitr EiamiiiatJon of this busi- .
ness is left short iu ihe Journals ; it is only saij
there, Tliat the TrcaeuTer, sir Henry Vane, woa
eujoined by the house to answer, Wbelber he
did take any Notes lo the .effect of those Notes
already read, at what time, and upon what oc>*
CHsion? The Answer is omitted; and this is nil
»liich is said, therein, at this time. — In a mnigi-
nal note of tbe priulcd Jourmtls, we are told,
' That this Paper was a Copy of Notes, wkea
' at a Giuiito of tlie privy coupoi!, for the Scotf
' aflairs, about the 5ih ol' May last,' Comnioui
Journals, rol. S, p. 118.
April 13. Heads of a Conference to he de>
sired wiib ibe lords were argi^ed in the house.
" 1st, A Narrative of tbe Evideoce mention^
on Saturday Inst, lo which tiro Dien)bers of ihU
bouse wera ready to depose. Sndly, That the
house having taken it into consideration, did
conceive it very material ; hot, in regard of tba
danger and dittractions iif lh& present times,
aod that ni*ich time n^ay be spent in tbe debate
touching the admitting of llus Eiidence', thiy
resolve lo come to a general reply, scttiug aside
that eividence for fliis bme, &£. Sraly, That
upon occasion of discovery of this Evidence, a
Paper .nas lead in llie hou^ whereby it 4id ^
pcDJr, that at the some time tlie dougerous words
were npoLco by the earl of Strafford, loficbiot;
tlie bringing the Irish army into England, pllirr
words were then epokun by two others, iJicit
present, decyphei'ed by ibrae letters, L. Ardu
X. Colt, (by which we conceive is. mcapt lh«
lord archbishop of Canterbury and lord Cot-
tiogton) vei-y wll of pernicious counsels lo the
king, and slander t« tlie coinmous asseml led iu
ihe last parliaiwent, as would appear by Uie Pa-
per, if tbeir lordships would please to have it
read, which the comaittee is commanded to
read,«ndI«B>e it to their consideration: and to
desire th^ locdstiips will ttlue some courie tb«i
5 a
14i!t] SrATETRIAI5, IOCmailesL
til \l it Jill uut become a prisontr at tlie bsr to
piv-u-iitie a iiictl..s(l uf piijceading to I tie Iidu^
ul uuiiiuioiu ill Fn;:laiiit.
It wa» iiihwereil by tlie I/ird Lif^aifiiant,
That )'F tlKius;lit it iiouA liim in lianil as iicarly
t>j niuinuiu liii Jiff, \t>- it iliil aiiy to piiC'iUi: l.iia
fitrit; let he mis viliinj tlic; tlioiitd brin^ in
new Vnioh, provided iliut lie nii,;lit Imtt lime
to raike net. liepliti, and wiihul use some nr »
'M'iiuesws in some Ariicles iL^t coi.ceni liis
The lunl Newark, upon thc^ malinnti, de-
sifcd the house nii^i.t be adjourned : alter Iwo
bonn staj, nod a hut conflict among the Lords,
tbcjr returned, uiiH the Loid Steward cim-
iiuuided the Urder to be read, nhich constated
oftnoAitides:
1. " That as it wat (rantrd unto ihem to
tkring ID Piooh concerning the 22d Article, so
it nas to the lord Stfid^rd to make hii Re-
flies, and use his Witness concerning the lame.
3. " Tliat if thejr went to no mure Articles,
IdW^-THalqfdKEarltfSinifor^ [1460
no more iboolii the lord Stnffiml; fcutiTtlirt
did, that he migfat pitch apan any o»t Article
aj be pleased.^
Tbe House of Commons presenllj dedinci
Jill oiher Articles, and conceived iheOnter a-
' pre^l* fur ibtm, restriinbig him rr>m atl other
Articles, escept that onlj.
He cvncerrcd the Order iras for him, aad
said, 1 bat seeing theT bad picked oat their Ar-
ticle, ii Has against all cuunnna etjniiv to tie
; up hb hands, and nut adinil nf a cotBttoa tvk
for them both. Thev replied. That srtiea tbe
I Article was raniaHi-d, tliey rrserttd Wilnma
: tih anoii.er lime. He answered, 1liai he had
' done ihe same upon everj Article. Th»j re-
plied, Tljat the house had refused his Ite«r-
v^ttion. He answered, Nor had ibev patted
an order far theiir.
Upon this new contniation the tloiise nna
□gain, and Has arijnamed. It is suppi'Sed that
ike House of Commons hiid ilie better gioucd,
because tliey Lad panicularlj nan.ed ibe<r \Vu-
' it mnj be dulj eianiined hj whom lliese worlls
ttcre spoben, that there mi|fl>t be some funber
proceedings to prevent the dsnrers that mn;
ensue tliereupon ; and that these counsels aiay
be looked into, and senrclied lo ihe bottom."
The Cooference being held, mnni desired,
Mr. Gljnu reported to the liause, ' Thai the
* Lorrl SCawnrd did speak Fjf the rest of llie
'lords; and told them, thnt ihe lords had
' agreed tliii house maj proceed a« formerly was
* intended, befoic the offer of further Eridence
' was pruposed; ihe lord Strafford tn recollect
' bis Evidencs first, and, ttuit being done,
* the meniben "{ the house of commons to
< stnte thein. All this to be ended tn-moirow
* momiog ; of which thej would gire tbe eaii
' of StiaSird noiice.'
Mr. Whiilock infonns us, That the next d?T,
April Vi, tbe Earl being brought tn Wcstmiti-
Mer, and both houses being met, the Notes « eie
<(peiilj read : tbe rille of ihem was, " No Dan-
" per uf a War nlth Scotland, if offenuve, not
*■ defensive.'' Then followed the Opinions iu-
tcrlocutorj.
K. C. [King Onriet.] < How can we ui^
* dertkke an oficniire war, if we have nn mor«
' money r
L. L. Ir. FLord Llentenent of Ireland, Earl
of Strafford.] < Borrow of the city 100,000'. ;
■ go on vigoroosly to levy Ship Money ; )our
' majesty hiring tried tbe affection of your peo-
* pie, you are absolvpd and loose from all ni^e
' of goi emineol, and to do wlret power will ad-
' mil. Your majesty having tried all ways, and
' bejn^ refused, shall be ncquiited before God
' and man : and yuu have an army in Ireland,
' that you may employ to reduce this kingdom
' to obethence: for I am confident tlw Scots
* cannut hold out Eve nionthi."
L. Arch. [Uud.] ' You have tHed all
< ways, and have always heien denied, it in now
' lawful to liike it by force.'
L. Cot. [CottingiDo] 'Leagues abroad
' there maj be made for toe defence of tbe king-
' dom: llic li»ter house are neaiy of tlie Ling
' and churdi : all »ays sliull Le jost to ra:^*
' money by, m this ineiiuble neccsiiy, and aiv
' to be used, being Ian ful.'
L. Aiclu ' For an ofrvuslTe, not any defrti-
' Commission of Array on fout, and ri aujuf
' Ujem stir we nill mate Ihcm smart.'
Mr. Whitlock proceeds to tell us, " Tbat tbe
foregoing Paper, oC so great consequence, vas
missing at tbe Couunitlee ; nud, by ttn: EaiPs
Answer, it was suppiistd lie bad seen it, acd
dut it was conveyed U> him (Mr. \V.) by some
of tlie Ciimmittee : that lie, beiog in the CIa,.-,
and baviug llie charge ai.d custody of aJ iLe
Papers, was !>uspccied mon^thau otiierstu Liie
acted this piece of treuctiery." Hei:dds,"Tlfc;L
great inquiry and seanrh uas made lor ibc Pe-
per, but It could not tlieo be (bunJ. He to!J
them when it was missing; and that amoiipi
such a multitude of I'aptis as he had in hi^ cu~-
tody, it n-Bs not easy lu see that he had tbetu all
again, when they were brought forth, or cny iif
them called for : that he neier sheiied '1I1.S
Paper 10 any but the Committee, and kncwo^t
nho had it, or what was become ofit; nor did
Conrey it, or know of any that liad conveyed it
away. Bat tlib would not serve ; the liuuse
was acquainted with the missing of the Paper,
and they ordered, 'Tbateieryoneol tbeCom-
' mittte should make a s'^lemn proIesi<itiun in
' the house, that they did not i^iuiey it away,
' nor knew what was become of it." All of
them made this procestaiiun, and the lord Dig-
by with more earnestness and detper impreca-
tions than any of the rest; yet aUcrwarils, at
tbe Battle of Nascby, tlie thing's Cabinet l>eiug
taken,ainon^ thepapersiuitwasacopy of these
No'es, undrr the lord Digl'v's hand; thereby
Whitlock was cleared, and i>iecoiuev*f i>r Hw
Pape' to the kn.g. and f.oui liiin la tbe Earl of
Strafford, was fully dibcgvcied." See % Cobb.
ParL Ui&t. 744.
STATE HUALS, IflCHAiLxsI. lSiO.^^H«& 7V«nm.
1461]
DHKi in their REKrvKticm, tbe lord Sltrnffiml
notio; [hejpmied but one Ariicle, ha minj.
But such wai tha pleaiure or the l«rd), that
thpugh the matter did not deterve to be moch
stood upon, yet sfter two liouis vehement agi-
tBtioo uf the busincH m iho Upper Iloaie, thejr
returned, and tbe Order was m favour to tb»
effect:
1. That 6oth of them tliould wive their new
Froofii, and ■oimmedinCelj^ to that which ful-
lon'l. 2. If lliC]! would not do >o, t)ie Lords
conceived ibemsclTes ciomnion Jud)<e» en both,
und iJierelbni niiuld not deny ScrnlTord tlie 11-
bertj of pitching apon what Artide lie pleased,
oailiej liad done. S. TJiat both of them should
name tlieir VViuiCMes at th« bar instantly.
The Commans ware mucli irltved at tliis,
jet desired biin to nominate his Witnesses, if
tie would iuhLc any benefit of tbe Order. He
aniiteted, That he would nominate after them,
liecause they were fiisl ui Order. They replied,
'Hut he knciv liieir Article, they not hia. He
uid. He was to bring Proufe about the Sd, 5tb,
ISth, and tlie JSth Acticlea, and did desire
then Ujat they nould now proceed to aomiaa-
But they told him, they could not embrace
the Order without ndrice of the nhole liouse.
Then on a sudden a inighiy noise followed of
the whole house, ' Withdraw ! Withdraw !' and
nas iu so uncouth and tumuttunus a confusion,
tirnt it produced both admiration and (ear in
the beholders, wherein n-e might easily feel tbe
Enlse of a distempered state. Both tbe Houses
renk up, not uppoioting so much as the next
Byct; each man's countenance spake anger
aiid discontent, and nothing saundtd in our
e;ira all Sunday, hut terrors and nifrigbtments
of a preseat diviaiou and breach between the
two houses: Thatthcbuuieof commonswould
declare liiin a Traitor, and all such Lords too
at were bis adherents^ that he should be no
more heard in public, tiiat (ttiougEi parties, and
not liis peers) tiiey irould vote in his Sentence :
That a Bill of Attainder should presently be
drawn up against him, and that nothing tbould
content iheiu but preseut Execution.
April 13.
Big words Sew up and down all Monday.
l^at whole day was spent in a Conference be-
twiit the houses, wilhuut any meetinv in the
Hall; but the Lords (who had learned, ai it
seems, to foresee their own ruin by hi« misfor-
tune, and now conceive that Monarchy and
Nobility are of such identity, that one and the
tame is the diminution ol both) kept fast to
their Cuuclusion, aud would out pass from
their Order, notwithstandinK all the many dan-
gers represented : so that tlie House uf Commons
were constrained at last to give way, and em-
brace the first part of t|ie Order, by waring
Witnesses on both bides.
This hath been no smnll discouragement to
bis enemies ; for a more real demonstrBtinn uf
tiis party amongst the Lorda could out have
^en fhewo.
t\4fa
Upon Monday, fome of the lordi Kent ao
high in iheir hrat, as 10 tell llie hnuse of com-
mon]. That il was an unnataraL notion, for
tbe head ta be governed bv tbe tail ; That they
hated Rebellion as bad ai'Treason ; That the
tame blood ciiat ennnbled their aoctstors, did
more also in their veins, and tlierehrc tliey
would never snfier themselves tn be suppressed
by a popular fiiainn.
After a great deal of stonv, all «bs (as well
as might be) soddered up again, and Tuesday
appointed to be the day for the Lieutenant to
resume his Defenfts, and they their Chai^
without any more Proof to be used on either side,
April 19.
Vpou Tuesday, the Lord Steward ft the en-
try lold them, tlie Lords had ordered iliat bath
their testimonies sliould be waved, that they
should proceed immediately to what folhiwed,
so thut that day might put an end to what coo-
cerned the matter of f«ct.
Tlie Lord Lieutenant replied. That in oU
humility and obedience he would submit hijn-
selftathat, or any other their Decrees what'
soever, though jt should reach as far home
unto him as his own life; but withal buiubly
begged, Thit if hereafter he should be troubled
(for they were to speak last) with new matter,
or with supplemcutal Proof, he might bava
leave to speak something in his own Defence.
The Lord Steward answered. It was all thfl
reason in the world.
The Lieutenant went on that :
My Lords; This day I stand before you
charged nirh High-Treason : the burden ia
heavy, yet far the more, in that it hath bor-
rowed the palrociny of the house of commons ;
if they were not interesteil, I might express a
no less easy, than I do a safe issue and good
success to the business: But let. neither my
weakness plead my innocence, nor their power
my guilt. If your lordships will conceive of
my Defences, as they are iu themselves, with-
out reference lo either, (and I shall endeavour
so to present them) 1 hope to go away from
hence as clearly justified, as I am now in the
testimony of a good conscience by myself. My
Lords, 1 liave iill along my Charge watched to
see that poisoned arrow of Treason, that sum*
man would fain have to be feathered in my
heart, nnd that deadly Cup of Wine, that hatb
so iutoKicnted some petty mis-atledged errors,
as to put them ia the elevation of lligb-Trea-
son ; but in truth it hath not been my quick-
ness to discern any augb monster yet within .
my breast, though now, perhaps, by a sinistrous
inibriDation, stiAing to my clothes. 1'hey tell
me of a twofold Treason, one against ll>e
Statute, aDOlher by the Common-Law ; this
direct, that consecutive ; this iodiiidual, ih»t
accumulative ; this in itself, that by way of
For the first,'! must, and dn acknowledge,
thiit if I hud the least suspicion of ray own
guilt, t would spare your lordships the pains;
cast the first stone at myself, and pass sen-
i409] STATETOIALS, MCHaRiesI. I»*&.— 7HW^(AeEor(q/-SSfre^ori, [IM
tence of cbndei
whether
Bcaiiflt myseir: a'i>d | beneath the kill!; bit maiter via ncr more
t not, I refer myself lo vour hsted and maligned in thn*e men than mpd^
aiid Derlurattnti. Ynu, nnd ih*t for sn Imp.iruU and lirict etectUiBg
id protection of thelnHgngiiinUTbeni.
Here J'>ur LordihijU maj observe. tlutAe
grenier number of tlie WiniesKS ii<ed Ogiiiut
nle, cither from Ireland or frum Yor^irc,
were men of thit Helieiun'. Bui for mj owD
Iteiolutioii (I thank Ood.) I am rcadj erwj
liotir of the day to seal inv ditsaliifaction to ibe
Churcli ofRoiae wtti my dearest bk>od.
But, inj Lords, gi»e mr leave herr! to (n
forth the grid' of my mal before yi
Proceedings against me seem to be' excecdin;
rigorous, and to have more of prejudice than
equity, thai upiiii n snppnsed charge of mj hy-
pucri^y or errors in Imiginn, I should be made
30 nionsiroa^ly ot^as to tiirce kingdom ; ■
^reat mnny thousand eyes have seen iny acco-
aaiiODs, whose ean shall never hear, mat nbni
it avme to the upshot I was never ■oca>ed «f
them. Is this fair dealing amongst Cfariitiaiisf
But I have lo:t nothinj; by that i Poputaj- ap-
plause nas ever nothing rn my coocert ; the
uprightneaa And integrity of a good conscience
vras, and ever shall be, my cimtimial feast ; and
if I can be justified in your lordships jadgrtienn
from this grund impotation, (as I tunx I now
am, seeing tliese gentlemen have thrown down
the bucklers^ I shnll account mysetf justified by
the nhole kinn^om, becauK by 300, who aie
'*— ipilome.uie better part, yen, t' '
lips Judgmi!
nlyyou (uni
of my gmcirius uiasier) are my Judges : uadei
ftvoar, nunc of the Commons are my P(
nor can ihey bii my Juilges. I Shall rver c
brate tlie providence and wisdom of your noble
■ocestora, who have put the' Keys Of Lil^ an
Death (10 fiir as concerns you and your posti
ricy) into your o«n hands, not into the hnni
of your inlerigrs; none but your own selves
know the rate of yoor noble blood, none but
yourselves must hold ibc balance in dispensing
I shall proceed in repeating my Defences, n;
they are reducible to Uicse two muin pnints ol
Treason : and for Treason against the Sliilute,
(which is tlie only Treason in effect) notluog is
alledged for (hat, but the 15th, 9ad, and 27ih,
Articles. [Here he brought the Sum of all his
Seplies made [o these three Articles before,
■no almost in the same words as before ; only
that testimony of sir Henry Vane'a, because ii
seemed pressing, he stdud upon it, and alledged
6ve ItcBSonl for the nitllif^ini; ther«of.]
1. That it was hut a snigle Testimony, and
would not make faiih in n matter of Debt,
much Usa in a matter of Ufe and Death ; yea,
that it was expressly against the Statute to im-
jeach, much less to condemn, him upon High-
iinder the [estimouy of two famous
Treason, .
"Witnesses.
■ i. That be was dubious irt it, and exprWMil
it t»ith nn ' As I do reineinher,' and ' such iii
'^uch Jile words,'
3. That nil the Council of Eight, eieept
tdmself, disclaim the Words ; as if by a siuKU.
lar providence they had taken hold of his ears
*. That nt the time the king liad levied no
Forces in Ireland, nnd therefor^ he could not
be posiibly so impudent as to say to ihe king,
* That he had on Army there, which he might
* employ fijr the reducing thiii kingdom.*
5. That he hnd proved by 'Witnesses beyona
ell exceptions (murquis Hamilron, the Lord
TVeasurer, the carl of Northumberland, lord
Cotliiieton, sir William Peimyman aftd »ir Ar-
thur Tertingham), that there was nevtr the
'— • •-'—•■ '- --' "-- — " ;ji England.
o land tfaole fdrcea
e Articles that concern tndi-
least
fHe went on
So much for
vidual Treason,
To make up the Constrhclive Treason, Or
Treason by via.j of Accuraidntion, many Aili-
cles are brought aguinst me, as if in n heap of
FeloDies or Mislemennor*, Ibr in ibeir conceit
they read) no hifthcr, some prolificul seed, aut
to produce what is treasonable, could lurk.
Here I aiii clinixed 10 have designed the ruin
and overthrow Xtnh of Religion nnd Stulc.
The fiist seemeth rather to baiw been uicd to
make me odious than gfliliy, (or there is not
the least I'roof allcHgpii concerning my confe-
deracy with the Popish Faciiunini-r could there
beonyiadwdj neter a servaot ia autbority
and life nfthe kii^on
As for my design against the State, I Jars
plead as mnch innocency here, as in matter of
^ my Religion ; I have ever admired the wisdom
' of our ancestors, who have so fixed the pillars
of (his monarchy, that each of them keep a doe
proportion and meanire vith the other; aad
have to handsomely tied op the nerves and si-
news of the state, ^at t^ straining or anyone
may bring danser and aortov to the Kfaole
cccoiiomy. TheFrerogatrveof the Crown, and
the Propriety of the Subject, have such mntotl
relations, ihn takes protection Iram Ctrat, that
foundation and noarishiocnt from (his; Aad
as on the late, if any one sirmg be too higti or
too lowly wound up, you tiaTC lost the baruMiny;
so liere the excess of Pren^tive ia opprauua )
of pretended liberty in the sobject, diinnkr
and nnTirchy. 'rhcPrProgaiivc mu-,i be iisolu
God duth ins omnipotency, upon eiimordin'ry
occasions; the laws (nnswerabte to that ' Po-
' itntialigatain Creaturis*) nrnst have place at
other times. And yet there must be a PrCT<v-
galive, if tliere most be. txrrruirilioBry occa-
sions ; the propriety of the subjects is ever to
he maintained, if it go in equal pare whk
■hit i They are fellows and coii>pai<ioiia, ihM
are and ever must be inseparalJe in a wvD-g^
verned kin^nm ; and no way so Rltiitg, s'l na-
tural to nourish and (-mertain bnih, as ibe fr^
queiil use of parliameoii ; ly Iliosc a commeroa
and ocquainiauce is kept tietwixi ihe ting and
subject. These tbou|:hl- have gon* atniig witfc
me these 14 yelrt of my public rmplovmeiiR,
and stwU, God willing, to my pave : Cou, hil
UGil]
^AT&TRIAIft 10 CitAhLBs I. IOV).—fir High 'I^taton.
[UM
majesi^, and niy own coosiiieoce, j'«a,«nd all
Aow who hB»e been tnuii ■ccessarj » my in-
waid thoughts «nd opiniotiB, can benr me nit-
nen that 1 ever dtil inculcate this, ThM the
happineu ofn kingdom con«t«t» in n just poixe
oflhe kim'aPreroRtiiive and (he Suliject's Li-
berty : and that things woiiW iierer go nell, tilt
tbey ifeitthand in hnnd together.
1 thank God for it, bj mj master's favour,
and the prondencc of my ancestors, I have an
estate, uhichsa iotercsteih ine ia the Commun-
Aealth, tint 1 liave no great roind to he a slnre
but a subject ; nor could I wish the cards to be
sfauffleil iirer ngain, apon hnpes to fiiil upon a
better set; nor did I ever nourish such base
mercenary thoughts, as to become a pander to
die tyranny and ainl»tion of the greatest man
liring. No ; I hare, and ever snail aim at a
fair, biit a boonded liberty ; remembering ni-
ways tbat I am a Treenian, yet a subject ; that
I hate* right, bm uoder a monarch. But it
halh been mr misfimune now, when I am grey-
beaded, to be charged by the mistshers of the
times, who are now so highly bent, that all ap-
pears to them to be in die extreme for monar-
chy, which is not for them»el»es. Hence it is,
that desigiit, words, yea intentions, a^e brought
oot for real deinonttrattnni of my misdemea-
noun ; ancha muhiplying-glass is a prqodicate
opinion.
The Articles contain Espressions and Ac-
doni; m|> Expreuioot eilber in Ireland at
Engkad, m^ Atlioo* either befbre or after
iLieM lute stirs.
[In this oitter he went throofh the wfarfe
Chatze, fVom tbe first Article to the lust, in on
eicelwiit metbori, and repesied all the turns
and hesfts of whnt was spoken by him before ;
only added in the S8* Article, If rbat one Ai^
titie bad been proved ttgeinst faim, it contained
more weighty matter t^n all the Cbarge be-
sides ; and it liad not only been Treason m him
bAt «iw TTllatny, to have betrayed tbe trust of
his ronjen^'s Afiny, Yet became the gemle-
Aten had been sparing, by reason of tbe times,
toiitsivtiipon that Atliclfl, ihuugh't nnf^t con-
cern liitn much, he resolved to keep tiie same
Method, and not utter ilie least expresnon lint
Inifi^ seem to disturb tbe happy agreement in-
to tided, though he wished ifae-same might de-
ceive his enectation; Only thus macb be nd-
l(iii«d,-bciw hitoself, being an iiKendiary against
Ore Scots in the «3rd AnStle, is now become
Aelr confederate in tbe SStb Article ; or bow
be could becbatxed fur betraying Newcamlc,
■trd for figltting with Scots at Newbomc too,
•eeing fighting with them was no pnssihle means
for betrayrng the town, but to hinder their
passage ihither.
Tbattaenevet advised war farther than, in his
poorjudxment, concerned the very Hfe of Ae
king's authority, and the safety and honour of
}Ai kingdoms . Nur saw he what advantage
could be madd by ■ war in Scotland, where
nothing cou'd be giiined biit many hard blows.
For his put, be bcmBured the nation, biit be
wished thev might be ever nnder their own di-
mste, nnd had no desire tfaey should be loo well
acquainted with the better soil of England ;
But be thought that Artidc bad been added
in jest, or as a siipemianetary ; and he very lit-
tle suspected to be reckoned a confederate with
the Scots, and wi^ed, as'hc hoped it was, that
every £nj>lishiuan were as free from that im-
putation as himself; closing his Defence with
this speech.]
My kirds. You see what may be allrdgeri
for this constructive, rather destructive Trea'
Son. Formjpart, I fasTc not the judgment
to conceive that such n treason is agrreaMe
either witli the fundamental grounds of reason
or law : not of reason, for how can that be
treason in the lump or mass, which is not so in
any of the parts? Or how can that make a
thing treasonable, which in itself is itol sof
Not iiflaw, since neither statute, common-law,
Qor pmctice, hatti from tbe faeeioniag of tbia
government ever mentioned such athmg; and
where, my lords, hath this fire, witlioot the
least appearance of any smoke, lien hid s«
many hundred years, nnd now breaks forth into
a violent flame to destroy me and my posterity
from tbe earth? My lords, do we not live by
hiws, and must we be punished by lavrs betor*
they be made? Far better were it to Jive by
no laws at all, but to be governed by those
characters of discretion and virtue that oalBre
hath stamped in us, than to put this necessitj
of divination upon a man, and to acctise hiiB
of the breach of !nw, before it be a law at all.
If a waterman upon the Thames split bis boat
by gmtiiig upon an anchor, and the same have
a buoy appending to it, he is to charge bis own
inobsemince ; hut if it hathtiotte, the owner of
the anchor is to pay tbe loss.
My lords. If tliis crime, which they call Ar-
bitrary Treason, had been maiked by an? 4t*-
cernet of thclnwt the ignomnre thereof shouM
be no eicosc for me ; hut if it be no law mt all,
how can it in rigour or strictness itself con-
demn me ? Beware you do not awake these
sleeping lions, by the searching out some neg-
lected moth-eaten recurds; they may one day
tear you and your posterity in pieces; it was
your ancestors care to rhain them up within
the biirricadoes of statutes; be not you ambi-
tious to be mure skilful and curious than your
forefathers in the art of killing.
My lords, It is my present misfortune, fbr
ever yours; and it is not the smallest part oF
my grief, that not the crime of Treason, bat
my other sins, (which are exceedine many) .
have presented me before this bar; and except
Tour lordships wisdoms provide tiir it, it mnj
be, the shedding of my blood may make way
for tbe tracing of yours : vou, voar estates,
your posterities, lie at the stake. If such learned
gentlemen as tli^se, nhose inngues are well ac-
quainted with such proceedings, shall he start-
ed out against you; if your friends, your coon-
ecl denied access unto you ; if your professed
enemies admitted lo witness against tod ; if
every word, intention or circnuutaoce in youn,
1467] STATETRIAI^, IQChaklesI. HiM^TivdQfllit EartifSlrqffbrd, [1468
Thi* he tp»ke with an inimitaUs li& and
be sirted and Rlledged as trensonable, not be- '
CRU&e of « atacute, but because of a couse-
queuce, or constructiop of bwjen pieced up
in a higli rhetcrical Blrnin aud a number of
supposed probabilitie* ; I leave it Lo youi' lord-
ships cousideration, to foresee what may be
the issue of sucb daogerous and recent Prece-
Tbese Geiitletneo tell me tliey speak in de-
fence of [lie Com mo nH'ealtb, against mj Ar-
bilrarT Laws; giifc me leave to hay ll, I ipeak
in defence of the Commouwealth, against tbcir
Arbitrary Treason : forif thislatitude be ad-
mitted, what prejudice shall foUow to king and
country, ifyiiu and jour posterity be by Ibe
same disenabled from tlie grealest atfaira of
the kingdom? For my poor self, were it not for
your lOTdships interest, and the interest of a
Saint in Heaven, who linlh left ms here two
pledges on earth, [At this bis brtnth stopp'd,
and he ilied tears abundantly in mentioning
his Wifip, which (Doveil liln very eueaiies to
compassion.] * I should never take tlie p.ilns
to keep up this ruinous cottage uf miue ; it is
loaden with such iiilirmiiies, tliut in truth 1
have no great pleasure to carry it about wiih
me any longer : nor could I ever leave it in a
better time thnn ibis, nhei) I hope ttte better
part of the world would perhaps Uijiik, ihui by
this my misfortune 1 had given a teeliiiiouy of
my intrerity to God, my king, iind country. I
think God, I count nut the afflictions ol this
present life comparable to that glory, which is
to be revealed mtbe time to come.
My Lords! my Lords ! my Lords! Some-
thing more I had to say, but my voice and spi-
nts fail me : only I do in all humility and sub-
misuou cast myseif down before your lordships
feel, aad dnire that 1 might be a Pharos to
keep you from shipwreck; do not put inch
mcks in your own way, which no prurience, no
circumspection, can eschew or sati'.fy, but by
your utter luin. And whether your Judgments
in my case, 1 "i^li it were not the case of you
■11, be either for hfe or death, it shall be rigl>-
teous in my eyes, and received with n Tt Deum
limdumui : (and then he lifted up his eyes, and
Mid; in tr, Domini, tonjido, tie tonjuadar in
«(eruuni .'f
* Principal Baillie, writing in his Journal, of
this besilatjon, sny>, '' Some took this fur a true
defi^rt in bis memory; others, and for the most
p»rt, for a not.'\bIe part of his rhetoric ; some
that true grief and remembrance had stopt his
mouth : for ihey say that his firtt lady the earl
of Clare's tister being with child, and finding
one of his wh'ire's letters, brought it to him,
and chiding him therefore, he struck her on
the breast, whereitf shortly the died."
t " Certainty never any man acted such a
par<, on such a theatre, with more wisdiint,
constuncy and eloquence, with greater reason,
judgment, and temper, and with a better grace
in all his wonls and gestures, than this great
and excellent person did; and he moved the
beoru of all his ludUots, some fevr excepted,
grace. You b»ve his very wonls as near >i I
can remember, only with so much lou and de-
trimeDt as haih perished by transcribing tlie
Copy from his own mouth. Bat you desire
impartiality, and iudeed you have it, and with
some grains too of allowance; for I wasta
afraid of my own aficcliou to the ^entlemas,
that I rather bowed to tlie other eitremily,
and therefore have set donu liis DeIiFiic«> ra-
ther to his disadvantage bv my rude pen, than
in the native colour, to his eternal glorj, aod
the confusion of bis enemies.
The repetition of tlic Ch:irge did not spend
much lime; they proceeded urderly Article by
Article, in the very same words and matter a*
before; only there was some remarkable Saehc*
that passed from Mr. Cti/n, who was the man,
in the time of their hatidlio".
He told them. That he should represent the
lord SlralTord as cunning in his Replies, as be
had been crufty in his uctions ; th.it he wared
all that was material, nod iusisted iiiily upi>n
■econdary Proofs; that it was more than evi-
dent throughout all his Cbat^je, how he bad eb-
deavouredto bring in an arbitrary aiid tyrannical
form of government over the lives, lands aikd
liberties of the king's subject* ; yea, )iad exer-
cised a tyranny over ibeir conscieoccs too, bv
the oath administered in Ireland: And Uun^
his maiicinuB desii;ns had taken no effect, yet ua
thanks to him, but lo the goodness of the king,
and the vi^lancy of the pecir. Had ibey
t leased, it had been too late to hare pimiibed
im ; for no rule of law had been left wbenbj
to censure him, after the death aod eiDumtkia
uf the laws. And if the intention of Guido
Faui might be thuught Treason, UiQu^ ibe
house was not blown up, then this intention of
bis may admit the same censure.
Uc closed ; That tbrougboutall hisDeftiice*
be had pretended either VVorranu from the
king, or else the king's Prerogative : and. what
was tliic else but to draw up • cloud, aud ex-
hale the vapour for the eclipsing of the brigbi
sun, by tbe jealousies or repinings of hii sub*
jecls, if the strength of Lis piety and juuic*
should not dispel all these mist--, and send then
down to their original i That the very standinf
and falling of these Cliree kingdoms stood umw
this Process; all of which do conceive tbeie
safety so far interested in hisjust puiitshmeDt,
that no settling of their peace or quiet could be
expected witluut this : That ihey lioped the
law should .never protect him, who bad gooa
about to anbvert all law : nor the Dobiiily (wba
had the same blood moving in their rema), by
submitting tbemselFes to his base tytanay,laca
that privilege and liberty, which their anceston
hod bought with their dearest lives. TI>«^
there was no Statute for this treason, waa it
tbe less moDttrous? For there wen none be
to remorse and pity ;" ate the •aprcaaiMis of
Whitlock, Mem. p. 43, who, as he himself
tells us, had been in the chair uf the contaiilee
of the tiouicof commous n|aiiiit tbe Sari.
1469]
STATE TRIALS, leCnAittsl, IflW.— /«■ H%ft TrfMon.
mim; hundreds of jeAn that duni ever rentura
Qpon luch iDiolcuccs, to ocmsion inch a Sm-
tuie. And were not the fbndBmtnttl ground^
and rules ofgnveniinent pofficieat to rise up in
jud)>rDeot n^ainst him, without tli« mating a
poriiculiU' BtBliite i Tliis, he snid, he Icl't to tbe
diipuie of tlie law ; and conduded, thai *ei-ing
iIm; hfld found iitti the Jonah, who (lieie manji
yean liad tosied and hniarded the Ship ol'ihe
CotnnionnealLh with coniinuitl itunni and tem-
pest*, there cuuldb? no minis eipectcd, hue b;
castinK him out into the sens; wliich, in alHus-
tice, they must, and do expect fnim their
hnatis, who nre intrusted by ibe body of the
Liugdom to do the same. The A^ravation of
the Uffenoe, he said, he bad lefi to Mr. Pyni,
who here spoke that Speech nbich is no» iu
It was a sport to see how Mr. Pym in his
Speecli WHS lenrfiilly out, and constraiaed to
]iiill nut hi& Pupeta and real) willi a great deal
- of confusion atid disorder, before he could te~
collect himself; wliich t'aiilng of his memory
i*as no small advantaije [n the Lientennnt:
becnuse, by this means, llie liouae perceived it
was a premeditated flash, nut grounded upon
the IJeutenani's last Answer, but resolved on
before, wbalioerer he should say for liis own
jusiilication. But the Lieutenant was not suf-
ferey to reply n word, either to Glyn or Pvm,
because tike Inst ward must be theirs. Aud >o
iviih Tuesday ended the matter of feet.
U(i Thursday lite diapnte in law a expected.
April 14.
TJpon Wednesday we were big with eipecto-
tion for tlie Matter of Law, having done before
with Matter of Fact; but it seeus the House
of Commons had perceited a great delectios of
their party, and a great increase of the lord
SlraFTord's frieiid$ in both thebooses, occasioued
by his iiisinuRtingi honest, and witty Detencei,
and therefore resolved of no more hearing lo
(niblic: therefore it waf thought upon by his
uccusers to draw up a Bill o/ Attainiler* and
present tliesnroe to the lords; whereby, Fim,
the Matter of Fact should be declared to have
Lcen siifficieoilj proved; and iben in the Mat-
ter of Lnit, that be had incurred the censure of
Treason, tor intending to subvert tlie funda-
mental laws of (lie liinj<dam: for though (slid
they] lie cnnnot be charged by the lelter of the
Statme of 35 Kdw. 3rd, yet he is within the
compass of the .Salvo, whereby it is provided,
That the king and parliament hp.ch power to
deterniioe what is treasonable, and what not ;
and that ibey were confident the lords would*
mify and approve of ibis Bill of theirs, and
llire Judgment accordingly.
The motion was stoutly opposed by three
great Inwyere, (all meoibers of the house) Set-
riCD. Hollionie and Btidgeuian, who made it
■ This Bill of Attainder was brought in by
nr Arthur Haslerig. Lnrd Clarendim give* a
very long and particular account of it in hii
£rfc rolunw, p. 178 to p. 183, £il. edit.
[1470
mauifest, that the mlzio nf 35 Edw. 3, wa^n-
paaled, and that no man could notf be convict-
ed af treason, but by tlie letter of ihit statute i
But being put to voice, it was carried for the Bill,
and a Committee appointed for to draw it Dp.
This gave occasion ul' much talL abroad, aiul
they Hho Were otherwise the lord StralTord'a
enemies coold not find equiiy enough in tiie
Bill of Attainder. Some coolil not conceive
nhnt difference imaginable was hetwixc th«
Bill and the Charge presented before; fur ia
the Charge be wu accused ofTreason, and the
Bill (thou{;h ihey had out ibe leci^lutive power)
seeiueiJ notbing but an alSiitiaCion of the same.
Others (who would have the Bill understood uf
a deGuiiiteSt'nience, because it was consecutive
to the Pinofs) were not tatisSed, but iliat it
was ngaiiist all practice, tlmt the Commooi
should give Sentence upoti the death of a peer;
and that it was a^insC common equity too,
tlint the coinplainera slKJuld be admitted to bo
Judges, anilthst tiie party accusant should ^ive
the judgment. A third sort gave it out. That
this was no Sentence (gainst the lord Stratford,
but only n passing of a uew act of parliament,
■bout k matter not hitherto 4eclurcd treason-
able : But yet iheic doubted, that by decUrtug
the matter of feet to be approved, and apply-
ing the Cei»ure U> it, in reference to the lord
Strafford, it would ever be thought a Sentem^
against him, to bleinisli bis own tame, and the
bu>od of his posterity. Moreover, tliat if they
were about to moke a new net, it were stninga
to punish n man for the breach nf such a Statute
as was not yet eztaut in rerun niifura ; which
should in reason refer only to future obedience:
And (what ia more Bti^uge) though tbere were
!, yet by what autLority can Iha
ecUre any individual oi
accumula-
l>e t'rensonable, which was not so
before? for it molt be Treason by virtue ofa
statute, or ebe no trea<iOn at all. Now tbcra-
is none can be brought, except llie 23th of £d.
3, ithcreof tlie lelter of tliac Statute cannot, by
their own confeMion, nor was not so much aa
once alledged against the lord Strafford i And
lor the mfm or pitmuo (which they mainly in-
listed on), the tame stands repealed by two po&-
terier acta^f parliaakcnt.
Yon have the mutterings of all sorts of people.
The Lords fearing the Proceedings, as a
bealen path trodden out to the ruin of their
own lives and eitaies, told the houie of com-
mons io their coikferenca upon Thursday, April
15, That they would go on the same way they
did already ; and, according to ilie Order of
t^e boute,' give full audience to the lord Straf-
ford's connsel in matter of law, and that they
themselves, as competent Judges, would by
themselves ooiygive Sentence in the Caose;
nor was there any other course suitable to tlie
practice and Statutes of the kingdom, the salety
of the nobility, or to equity or coram on justice.
It was replied by them of the Lower House,
That they were resolved to ii,o on with their
bill ; and if ike same should be reiected by ilis
iofda, they Gnred a rt^itara and divisiou nught
U71] STATE TRIMS. 16 CilniLKsL lOiO—iyialuf lie Barli^Smtfotd, [!«•
n nnd dMolatk
whole kingijom
firea to Che subject, (and this vna n strong u^-
mcDt inde^, v« better bese^ininj jwrtialit;
and viotencF, tkin the pretendrd Jastice and
piety of the limt^) unlet; the maa wlio had >o
much intruded upon their ri^ht, and di?coD-
tented the peopk, mitjhi be pnnidied'ns a Trai-
tor ; and for the practice of the kiDgdom, tliU
DO man had tvrr (aand siucfa a ^ournbk hcai^
iug; and that the jpTocess against Rs^i.Narfiilk,
Saoieraet, were all of Ihcm oloMd upio oiictia;,
April i6.
Upon Fridaj, the I^rHs save Answm-, Tint
Jitfj could expect U'lt^iiii; from the House of
Cunimons, but nhat <4taiild rend til the pmc*
and preiervaii')n of iheLiaedim ; nurwiii ibere
• mure foroealJe «ay than M prewrve tlie ta*i
rs thereof^
miplaiDed uf bj ibnn, might unhnppilf be ' tool.
toU ibe Lieutenant, That tte lonU had rtsuh-
ed to gite him k (nil bearing in tl>e Ualtcr of
L&nt, and tberefurc dnired that tbe eouhmJ
miglit keep that diitance, noderali-.'D and
respect to the Judicatorj that wai si^iia^, aad
BOl at all to meddle "ith tiii- ilaocr sT Fact.
I'he UetitcDaat replied. That in lU l-wa lit;
be did ackoowkdge lli«t fivoiu (ruM tlal'iida;
Had that it nai such an one too, at be Coatd not
but eifiect fnim »uch h'lQourable peen and
JU9< perMns ia wb«se int(-|;rHj and gvodheg*
under that wbtcli be had |ilace<la)>4iTej be bad
repo-ed liis cliteftti confidciire ; for tii> Cooa-
sel, till-]' Liiew mui h bttier ihaa bimselt Biot
coHceroed the puiitt of diaerctioi] aitd invert acr ;
uiid ih-ii be (toubtnl not but (hat tbcf WutJd
give all ■.iti^'dct^oii aud iibedience.
Tbtn l,is Couns: 1 -ere calleit lo tbe bar, Sir.
Lane, llie Prince'^ Aitoroej ; Ur. Gwdntr,
ofLoiidun; Mr. Lue, and tir. L^ki-
fiwind BiaoDg tfaem«e(vei; Thai the sut>{ectt
•bsatd have all that juttice cuuld ufionl, I
that an act of ii^iutioe woulrl nrvtr gire sni
(action to tbe world, aor safetj to tliemBeln . ,
tbee^esof all foreiftn state* bein^ fined upon the
btuinesi nnw in n^ita lion, and t<ie fftsdoDi of
onr nati'in either to lie much MUiinced or d«-
preteed bj ttteir jud|niencs
hie prnoeK URninst Norfnlk md Esaex (for
Somcrwt wn» cunvict onlj of Fel»nir, and had
aotso much ani mad version to lave bimceirb;
bit book) were for direct and formal "'
oMiiprised in one or in-n individual
this against the \nri Strafibrd only arbitrary and
accamalMJve, In be pickt oot of es Article*
And tbeivfare that it *as imponiUe to have «
fall eKnininntion of iliem all to pje Sentence
asainst him. And those nohlmnen nerechaii^
ed with aiime actual breM:li of ttatuta, for-
merly made ; but here a ae« natnta was to be
made, «r else be to. be found gniltless. They
coDcluded, that they had frrcn order tor bis
appearance on Saiunlav, «ad that in the great
Hall at Weitrainster, where tbe Hooae of Com-
■KHM iwiRht if Hiey pkated be presetil.
After some deliberation witb the houfe, tha
C-onferren iinswend, That nac« tbe lards had
so rcsnlved, tlic; would not deay to be therc
pre*ent, and to hear what bit cotmiel could
•ay for him ; bat to i«ply any more in public,
they neither CMld nor fonld, becanae of tbe
Inll already pait ; only tf the lords shaalil take
auy scrapie in die matcarof law, ihey would be
ready to pre tbem aatishflien by ■ privat*
ronferesce, (Sn they willii^ly dadined to do
whnt indeed Ibcr tnotrt not ^oasihly 8a, that ia,
to five public satitfiKtiog i> lb* mattar of law.)
Af rU 77.
Upon Sstwrdny, they contened in the gr^at
Hall ; but they that were of the CanancCea for
tbe (rent Chaive did not stand at the bar, «a
brivre. bnt sat pmmiecBOusIt with the rent of
their IcBows ; so ibai a DMnitb wa< not 0|>citcd
in the behalf of the Hoaw of Coaaanoas all that
riay. After thay in** aat, tbt 1<m4 SimmmI
:e spake, and much to thi* at
Mr. Ltnc
My Lonb, there is a heavy Chaise lietb oa
tneaad my feUows, iiuihtng Itulhan lo drfcad
tlw life, tbe estate, tlie imputation, yea tl«
pOiterity of tkie honoursbb prrs&n at the bu- ;
irtlierefnie we fhall be more picMiu;, hc bqfie
yuur lordiiiif-a will iuterfwet this our ii-rsanf-
i)e»i;to be for tinaaur aud c.iUEcitnce-aahr, ia a
shall be our ndeavour to curry oura^Uci with
our beat reapecu to ynur loriklii^s. and »ilU
all content and satis fact inn In the bonuunble
House of Commons. And becau<« ymr lord-
sbjpa loeatii^ed the Matter of Fact, ou« thin;
I dare be bold to any, TIm all tbe line ui iba
Dobit lord's XJeleiiccs, lie di'l n^jt so nuch at
crave any one of our Opinii>iis ; yea, ornc-
quainteri us with any ibiu): t>htt leiided thai
way. And for the Matter uf Law, those Sla-
tatta cited by himielf nere none of our >toik,
but taken up at liis own adrentuie : nor dol
(peat ihia to denoi^ic from tbe pettiDiocy of
tfiDse -Statutes (for they sbxil be ihc Mil-jeci uf
ny disconne), but tial the uuhlsmaa be a^t
dtiappointed ofjouz right coacepciuBt, and his
My Lorda, it is your (deasure tre nteddle lat
with Matter of Fact, and indred *e need ikk
meddle at aU wiib it, becaase n e hope it is ■)-
readf done, and that siifficiently to our hauds;
yet tbe Maiier of l.aw doiU s<i naturally ma
out of the UMttr of Fact, that of necr^iy
(under your lordsliips favour) we miMt iiiiti
raa this, if we speak nn that ; nordo
it pnesible for us tu speak advaotage-
ODsly CDongh for the totti 5trBffi>rd's j ust De-
fence, unl»i tbe vtb-le Matter ol Fan be de-
termined, either as prated or mit proacd, or at
' test v>a>e aiatcs of qarstinns aarrcd apai^
iherc we may ia and srttle oar arpimraa.
And thefe<i»pe k is, my Lortk, that I hai«
chosen not at all to touch tbe Halter of Law
(until your lordship* sinll be |»lealed to fhsft
a «y>i odlsHs It be to clear yoor jotlp'
ment* in-aae Jiatak onlf , is. ia £d. & Ba-
1473]
STAT£TRIAI£t 16 CuAnti I. } 6 W.— for H^TWasoa.
CI474
OMee wh«n tbe tame was allntged bj tW ioiil
Strafford in lii« owd T)«fencr, that not being
«»livicted of the letter tliereof, he could Tint b*
ooavieted of Treisou ; I remeniber the «i/7»uf
ibax alalate was much insisted upon bj those
from lite Uoaae of Commons, m much conduc-
ing to their owa ends. My Lords, I will tint
speak of the Scatote kielf, aod then 61' its salvo,
or praviaion. Tbe statrite i«, ' That rf any man
'' (Mil meo'l the death of the king, his queen,
'tbeir cbililren ; kill the Chmicellor, or Judue
', Dpcin chs bench ; intbase the king's c6in, or
*, cuuntertifit the broad-seal, Sic. he shall he
'-een<ic(ed end punislied as a traitor.' That
the lord Strafford comes within the letter of
tills Statu I e, is not so mueh as nnce alledgeds
■or indted cati it be with any reason : All thuc
can be iaid is, TliathytBlBtionjorbyareumenl
4 wtinari ad mtfjiu, he may be drawn thilhcr ;
jec thac ihia caanot be, I humbly oAer these
OMsideMtiona : t. Thb is a Declarative Law,
■nd SDch.are not to be taken by wny of conse-
. ^uence, equity, or conttruction, but by the let-
ter only ; otiierwise tirey should imply a contra-
4ic[iim to thamselves, and be no more declara-
'lire laws, but laws ofcmutrnctinn, or constitn-
bve. 9. This ia a penal law, and <uch (if our
gnniT>ds, hitherto uDqucstioiUH), bold food) can
admit of no constrtictioBs nr inferences; for
tenaltiei are to persuade the keeping of known
in'S, not of laws conjectural, arablguouii, and
by consequence, nhich perhnp* Ae most learn-
ed may not in I heir disputes question; much
less the subject (who is not obDged to interpret
theStatute)doubt of in the point of obedience;
yea, rather ivichout any doubt, be is to obey
the letter uf the statute, and coucetve (and (liaC
truly) that he is not liable to the penalty. 3.
We hn»e a notalle law, 13 Eltt. ca[j. 2, where-
by It is declared, that the brining iti of Balls
from Uome to stir up the subject to mutiny and
rebellion shall be punished as Treason. Now
if by iulerpretntion, or by consequence, this
sense might have been thrust upon the pre-
ceding statutes, the making ^f this lind bct^n
supernuuus; yea, the persons then charged
mth tliat [:time might hare been impeached
of treason, e
I befora the <
sking of this
Anno 31 Ed'. 3. We finve a Statute declar-
- ing, That for a servant to kill his mnster, is an
act of Treason : And in the SSrd year of the
same king, a procuss. of Treason ivas frumeil
against a man far killing his foiber, grounded
Dpon ths same argument, a iniswi ad na/tii :
But it was found (and the SenCeoce is vrt in tlie
Becotdi), irliat nltliongh in tbe 31st oi Edward
the 3Td, that argument mi^ht have been admit-
ted ; Tct in the STtfa it cniild not, by reason of
the tuclarative Inw interveninii: in the SAth
year : And this Case comes very home to the
poiiK in Uw.
My Iioids, I will not demand what kind of
Ott)ne« it may be, (or n man to sahvert the
Fiindaraeatal 'Laws of ti kingdom ; tb« crime
dwibtless i* unnatural and monstrous, and the
punbhrnent mast ke«p iha a
VOL. III.
only I ptesniiM to offer these fen things to your
iBriishipa cunsiderations :
1st. That one urniore aoiiof injitslice, •he-
tfarr oialiciouily or i^iioraiitly done, can in no
sciMc of Ikw he called the subversion of ibe
Fuiidnnieiitai Laws ; il'so, aa many judges (per-
l«ps) su many traitor*. It is very incideut to
mun's nature tn err; n»r dutb the lord .Itraf-
tbrd plead his inuucbncy in over-Hghls, but in
treat'On.
adlv-. I do remember ihe c«e of John de Is
Pool, duke of biilTolk : this man, in tlir Sdth
of Henry 6, was charged by the house of com-
mons with Articles of Treason, and tbose too
very like tn these against my lord Stratford. I.
That he bad ^iven tbe kiiift bnd Athii-cs. 9.
That he bod embasul bis Coin. 9. That be
bad cessed Men of War. 4. That be bad eif eo
out summary Decrees. 5. That he bail inv
posed Taxes. 6. Tlue he bad com>ptcd th«
Footitain of Justice, 7, That he had' pel*
soared the king to unnecessary war, mid to the
giviog orer of Anjoa in France, omin ovu.—
And lur all tbeie, though be was clmrged with
High-Treason, for wronging the Uight of tha
Subject, and subverting the tbndniMenLiil laws
of the kingdom ; yet, a^er a long agitntion, llv
iDfltter waa foand by tlie lords of parhameni,
not to imply Treasou, bat only fehinj. A<ld la
tliii another, who in the SSrd of Heni^ the 8tb
WHS chiir(|ed for subverting the En^bsh laws,
and yet nu Treoann charged upon him. Add
to both tbe Cham of Riohard L«rk*, pleaded
at the Common -I'leas, who wfts cbargird whh
Treason for lubiertiag the Inw, but convictad
only of Felony: by which you may tee, my
lords, what to this tipe bath beea subverting
the laws.
3dly. It is very considerable, thtt the turd
Strafford is not charged to have subverted, bat
only 10 have intended to subvert the Fonda-
mental Laws : and this 1 conceive, if there
were no more, might keep hsn free froiri tlutt
Statute (if the is Bdw. S. For atilioogh, a*
touching the king, his queen aad children, in>
tention is treasonable ; yet in ail other thiap
there mentioned, there must be action be-
side inteiiiion; for it Is not said. If a mao do
intend to kill a chancellor, it shall he Treason ;
but only, if be dn kill him : and if he dath <tctu^
ally ounterteit the Broad-Seal. AndalrlMuth
a man should prepare a farnace, mi^e ready
bis stamp, nelt his bullion ; yet if he gives not
the king's impresii'in upon the iwiri, alt his
intentions, yen, his preparations will aot sei'tft
to make up a Treason. '
And this (under favour) may seme to air-
sner the Care of Guido Faux, latdy objected ;
ouless it be alleged, that the lord StraAbrit had
as real an intention against the kind's lile us
Faux had: For though the intention in thm
cH<ebeTrea«on byche statore, yrt io ntl'oihsr
thinps there is no tnasan without the action ;
,«> immense and vast a difffrence both is, and
ought to hCf betwixt a project against the rovai
hlnod, anct all thii^ dae «f a lower and tnMR'
.Google
U?5] STATETRIALS, laeitAiii^sI. 16MK— Trial qfOe Earl >^StrM0ard. [1476
Dved hj lint act. Add to tbu, Ibtt
of qneen Mkrj, tlie first chapter,
repealed, ■ That do man ilwU be
' iiuaisheil in Life or estate as a traitor, bat fee
' the crime coiuaiiied in the Statute S5 Ed. 3,
without the leut tneation of > {
of Northuiubcrlaod'* CaM ci
, You see tberefere, mj lord*, that the bod;
of tlic sintutc caiiiitit siick oKaiuat llie Inrd
Straffiird, neither in ktier, nor nt consequence;
this b not, that must not be ; Alt ihnt can be
said is. That this tact lanj be Truaiitii bj the
comraon-Iaw. For m; pun, t pruiess m; ig-
norance, who ever tli0U((ht the comni'in law
tniglil declare, hut never make a Treason ; tliat
u, it might be pre«uppased ihut there i» a itn>
tute whereupon to build a declamtinn; and
thrfefore to saj there a no itntute for it, ii to
•aj it a 110 Treuson ai oil. Tlie statute ever
mukes the Trenion ; and to be declared tu be
Treuon, either by conuuon btn, or by parlia-
ment, are hot. two difTerenc nays of proceed-
ings, and must bath resolve into one (irinciple :
yen, which cornea home to tlte point, in ihe3lst
of Kdn. 3, to kill a mun implayed in the kini's
war, was Trenwn; and the !f3d, to kill the
kiog'a tnessenfivr, woi treason liy dieclnraiion of
the common law, but always by reason of the
natutc': vet none of these are now ueiisons,
but felonies only, by reason of the inteirening
aUtute, the e5ih ot Kd*. 3. Such liath en-r
been thought the force of its letter and decla-
ration ; Htid so I will leave it, and speak a
woTxl nr tno of the laivo, which \s this : that
because all paniculars could not be then de-
Botd, thereCorc what the parliament should de-
clare to be treasofiable in time to come, sliniild
be punished as 'H'easou.
And according to this resenration, in the Sth
of R. Sd, one who wns charged before ilie
KingVBen' t) was afterwards referred to the
parliHioent ; and there, though the fact was
not contained iti the body of the statute, yet
becauie of the Proviso afore-mentioued it was
•djudged Treason.
In the 11th of the same king, the duke of
Ireland and Nevil archbishop of York were
iinpenrhed of High-Treason by Gloucester,
A ru add, and Warwick; and notnith-iondini;
I the Statute, were convicted thereof by llic
wlvo. But in [he Slst of the smiie Richard
the 2d, [he tide turned, and the king had such
a bund with the parliament, that the Sentence
was recalled, and thow three noblemen them-
«dv» adjudged traitors. Again, in the 1st of
Henry i, his aucoetsor, that revocation of tl>c
fllst of H. ad, was repealed, and the Sentence
of the 11th of his reign established. Such
were the tossing) Ui and fro r<f treason ; and
all because of tliat uncertain Provisn.
Therefore it wa<, (hat m the same pnrlinmen[
the 1st of Uenry 4th, n Prtiiion was preferred
by the nubility to have Treason limited with
some Statute; because thvy knew not what [o
speak, or what to do, for feur thereof,- And in
the toth chnpler an Act wn^ made upon (his
Feiition, that the ulvo should be holrien re-
pealed in all times to come, and nothing es-
teemed treason but what wBi literally contained
in the Statute of the SSth ofEdward 3 : And
therefore ii is said in the Rteorda, that there
was great juy at the makinfi of this act, in that
tht drawn sword hnnging over every man's head,
l>y tliis slender thread ol a cansciuence, or illa-
nigll to the point : he was charged with Ttea-
uin, the 1st of Henry 4 ; and if the itaiote
of the Sth ofIlenrj4, thefiral chapter, where-
by this Provis'i is repealed, had not intervened,
no doubt be bad been condemned of TrenuMi:
but he was only convict of Felony, and that be-
cause hs could not be drawn within tbe letter
of the statute of ibe SSlh of Edw. 3. And I
dare confideotly aay it. That since that Act was
made, the 1st of Henry 4, the first chapter,
whereby lbs E^viso is r^aled, no man buh
ever been declared a Traitor, either by king or
pariianiunr, except it were upon that, or some
other statute, literally and deolarstively taken.
These two things I do offer to your lonUiips
considerations ; That the lord Strafford caoml
be impeached of Treason by the statole of the
9Sth Edw. 3, and that the lalvo contained in
the same standi repealed almost 300 yean ago :
and this is all I conceive to be necessary fee
that statu[e which was alleged by the lord
S[mnard in his defence for Matter of Fact.
Then the Bccordw spake some few words to
this purpose; That what wis spoken upon the
Statute, was because it 'seemed inseparable
from the Mnttcr of Fact, that they could pro-
ceed no farther, tilt a UMe were afforded tben;
that to do othn-ivise, they conceived might be
very prejudicial unto loy lord StraObrd. 1, In
that tliey should suppose that to lie done, which
is not proved to be. 9. That the Matter ofUw
aritrth so naturally from the Matter of Fact,
that it will be i^tossible to separate one from
the other. 3. That it is the course of all judi-
catories, first to settle the Verdict, aoil upon
that to (ix the Arguments, othei^ise be could
conceive uu possible wajr of proceeding ; and
therefore, in the lord Strafford s name, he laost
humbly inirented, that the Lords would either
nhiilly determine the Matter of Fact (not whe-
ther it was Treason or no, for then all otber
proceeding in the law were uimecessary, but
whether done or not done) or else to give them
some states of the question whereuuls ihey
might confine themselves.
Upon this motion the house was adjoomed
for that day, nor bath it met since ; for the
House of Commons are returnid to ibeir oU
biuss, and wilt bear of nothing but tbe Bill <^
Altninder ; but the lords seem to be mure re-
solute than before, becnuse they find that they
haie no mitbority to declare a Treason in a
fnct already pnsl, tbeSnlvoof the 3Sth of Edw.
the 3rd being repented ; wiihil, that if the Bill
of Attainder should proceed, the kiiif hathas
great pon er to hinder that at tbe last blow, as
any other statute : but I hope tbe lords will
disburden bim of tbu eovj.
Ur7j
STATE TRIALS, Ifl Chaklu
All they which tt^nd obliged to the lord
StraSiird, m blood, Rltection or deserriog; and
*11 who have been iiilermLed with him io the
king's aervice, and many too, who both hale
hii pcnoD, nod didike hi> proceedings; will
doublleu look upou it, and teodcr their own
BsTetj, Blloftbcin in lilieliliuDd being subject
to the diarge of Treason, if ever they chance
to be called to do the king's service ia Aaj
place ofitnponance.
, ^ I cannot eipress how much the voice of the
multitude in now altered from what it was
lately, nolhitig now talked of what should be
done, but only of what must be done : so that
if the lord StraObrd dies, his very.enetnies will
confess, that It is done more for nece»ity, than
for justice ; and rather for the satisfaction of
raucoroKs appreheDsioos, tbM> for any guilii-
Dtbei
April 99.
Tliursday lost, v'n, April 39, mu designed
ibrtbo agitation of the long inieimitied basi-
DEM concerning the Lieutenant; and the way
was this : The'lords did meet at the great Hall
at Westminiter about nine of the clock, not in
tbeir robes, nor did the Lord Steward iit upon
his sack, bat with the rest promiscuoueiy; nor
did the committee for the house of commons
■taud at the bar, but «at with the rest of cbeir
fellows; and the earl of StraSbrd sat behind
the place where he used to sit before; the
KSMU of these changes was, because the dyet
was appointed not for a meeting but for a
Conference ; so curious are we (and that is all)
about fonnalities. The king, queen, and prince
were there, according to their cutlnm : not a
' man spake a-word in the honse all the time,
tMt only Mr. St. John, the king's Solicitor, one
of the Committee; whose dnft nod purpose
was to furnish the Lords with Reasons, why
the House of Commons had proceeded with a
Bill of Attainder : and withal, to reply to what
th«lord Stniffbrd had spoken, either by bimsetf
or his counsel, in matter of law.
The Speech, contaiainE a learned Argument
on theLaw of Treason, is here iuserted froaa
S Kosbworth, 67S.
Ub. ST. JOHN'S ARGUMENT OF LAVV;
coacEKNtNO THE Bill of Attainoe'r,
April SQth, 1641.
My Lords ; The knights, citizens, and bur-
gesses of the Commons House of Parliament,
have passed a Bill, fur the attainting of Thomas
earl of Strafford of High Treason. The Bill
hath been transmitted from them to yaur lord-
ships; it concerns net him afone, but your
brdships and the commons too, though in dif-
ferent respects. — It concerns his lordship the
highest that can be in the Penal part^ so it
doth, on the other side, as highly coocem your
lotdiihips and the Commons, in that which
ou^t to be the tenderetl, ttieJudic:itory within
that, that judge nut them who judge him, and
in that which is most sacred amopgst meo, the
Fublic Justice of tbe kingdom,
I. 164a~/or Ht^T^tamn. [U7S
The King ii to be accounied unto, for ih»
lossoftliemcoDest member, much more ofoua
so near the Head. The Commons are con-
cerned in tlieir account for what is done, your
lordships in that which is to be done, 'llie bit-
tiaess therefore of the present Cooli^rt^nce, is to
acquaint your lordships with those things, that
satiifivd the Commons Id passing of this Bill ;
such of them as have come witliin my capacity,
and that I can remember, I am commanded '
from the Cnmmuns at this time, to present
uoio your lordships.
My Lords, in judjjment of greatest moment,
there are but two ways for ealisrying tliose, that
are to give ibem ; either the Ux lata, the livr
already established, or else the use of the same
power for making new laws, whereby the old at
first received life. — In the fiitt consideration of
the settled laws, inthedeereesofPuniahmeiit, the
positive law, received by general consent, and
for the common good, is sufficient, to satisfy
the conscience of the Judue, in giving Jud^
ment according to them. — in several countries,
tbereisiiotthesame measure of punisliment, for
one and the same oSence; wilful murder in
Ireland it is Treasou, and lo is the wilful burn-
ing of a bouse, or astack of com: in the Isle
of Man it is Fefony to steal a hen, hut not to
steal a horw ; and yet the judge in Ireland,
hath asjust a ground to give Judgment of High-
Treason in ihoK caaei there, as here to give
Judgment only of Felony; andin ihelileofMan
of Felony for the hen, as here of Petty-Larceny.
My Lords, in (heuTlier mnsidemtioa ofuang
the Supreme Power, the same law g'lves power to
the parlianimt to make new laws, that eoeblM
the inferior court, to judge eccordinj to the
old. The rule that guides the conscience of
the inferior court Is front without, the prescripts
of the parliament , and of the conmoii'law; in
the oifaer, the rule ia from within, that aiiu
populi be concerned, (bat tliere be no wilful
oppression of any of ibe fellow-membera, that
no more blood be takan than what is necessBtJ
for the cure, the lows and customs of tbe realm
a* well enable ttie exercise of this, as of the or-
dinary aifd judicial power.
My Lords, what Jinth been said, is becaust
that this proceeding of the Common) by way
of Bill, implies tbe use of the mere legialntire
power. In respect new laws are fur tbe most
part past by bill.
This, my Lords, ibougli Just and le^, and
therefore not wholly excluded ; yet it was not
the only giuuiid that put the Commons upon
the Bill, they did not Intend to make a new
Treason, and to caadtmn my lord of SiraQ'ord
for it; they bad in it other considerations like-
wise, which were to this effect.
1. The Commons knew, that in all former
ages,irdoubts<iriaw arose of great and general
concernments, the Parliament was uiually con-
sulted withal fur resolution, which is the rea-
son that many HCIs of parliament are only de-
clarative of the old law, not introductive of B
new, as the Great Charter of oar Liberties;
lite Statute of 3j £d. s; of Treasons; the Stit-
UW] STATETRIALS, IOCkam-esI. IMO.— THbiij^ffaZarfyftMfont [1MB
nnd th&t hj Sn*iri Wanmnt, ■ml advice of
bringiim i)»er ihe Irish Army upon the nr
' tMe of.tbePrerogariT*, ind of )ate Ctw Peti-
tkm of Right; if flw U« were Awbtl'ol in this
cow, tbej perceired iJie PiirliMneBt (where tlie
M WBT ts nltered, nnd new hwi made) the
fiuest J lulge to dear this douht.
2. Mt. Lords, (hey proceeiled Ibis way, t»
i>hvinteihijic«:niples»iiddei«y*, which ttiniiigh
diBBse i>f jirocc^in^ ol'this nsttre, tnigbt twive
men in the manner knd wajr of ptt>cmdiiig,
«nce Ihe Scalule of the 1 Hen. 4, c. IT, and
now fully in Ihe Koll, Nu. 144. The proceed-
ings of parhiinienc liave uiunll^ been upon an
Miet mm t first founil. though in cajcaol'Trea-
MMl p>rt>ciilHHy mentiuncd in the Statute of
25 Edw. 3, whicli bad n:>t 1>een dune in thii
cate ; dmibu likewise miglit rise, fiir Treason,
Hot particalnrly ineiiiianed in the Statute of
95 Rd<*. 3, whether the Dedanlory power of
pMHiment be tnken away, in what miinner
(hey were to be made, and by whon, they find
not any Aitainder? of Trenson in parhament,
for Jiear this 200 vean, bnt by this way of
Bill ; and again, they linnw that whatsoever
ouald be doire any other way, it might be done
3. In respect of th« Proofs nrai Depositions,
thM haTe been made agarnst him ; for firet,
alibongh they koew uot, bat thai the whule
Endeiice which bath been ^rveir at the bar,
in every part of It, is sufbciently roinprehended
witbin [he charRe, vet if therein they should be
Diiitalicn, if it should prove otherwise, use may
jtnly be made of such l^vidence in this way of
Bill ; wherein so ss, Evidence be given in, it is
no Miy requisite that there should have been
wiy Articles or Charge at nit ; nnd so in the
cnseuI'dnuUe testimony upon the Statujeof
the lit Edw, tf, whether one direct Witness,
wiA otiiers, to circumstnnce*. had been single
iir double testimony f And although sin^etesti-
■lony niiplii be sulfident to ^atisly private
oonsciettces, yet how liir it wonld have been
•atisfaetory m a judiiiitl way, (where forms of
low are more lo be stood upon) wns not so
' clear ; wbereas in thrir way of Bill, private
•■tisfection to eadi man's cunscieiice is suffi-
cient, although DO Knidence had been given in
■t nit.
ni,vLorda,Th« proceedidfc by way of Bill, it
was not to decline your lordships justice in the
Jodicial way, int!iek-eM;endtof"lhestate and
kingdom; it was lo husband time, by silendng
tbme doubts, they conc(.-ived it the speediest
Bndwircst way. My lords, these are in efect,
the thinf^ the Conminni look into thcii- consi-
deration, in respect of the maimer and way of
Prooeedint; sguiost the Eatt.
In the neit place, I atn to declare unto your
lordships, tli« thiT^.« they took into thdr consi-
(feratioos, in respect of the nratier and merits
of the Cause, and they btu comprehended
within these six heads.
1. Tli«t there is a Trenson within the statute
of 25 Edw. 3, by Idling of War upon the
matter of the 15tli Article.
■ 8. If not by Bciual lt.vyi(i| of wsf, yet by
■dviting, and dedariug his ini«QtioD of war,
(he SSitJATiide; then iaiendingfrf'a War, if
uot within the davse of levjine <rf a War, in
the siMuta uf asth Edw. 3, yet wiihiii the
lint Treason, of compassing the death of the
kinj;.
S. Ifeilfaer of these twosingle actsiswidiiB
thestamteof saEdw, 3,yei upon pnti in; alto-
gether, iibicb halh been proved acanst faim,
thai there is a Treason withiit ibe ftnl dmse,
of Oiinpassin); the death of the king- * Et li
' non pnmtnt siogsla joncta jnant.'
4. Th<it he haih seised, and laid soldien
upon the aub(ects of Irrland, against their wil,-
and "I thdrdiarge, within the Irish statute of
the IS<h of Hen. 6, ibat both penon and
ihing are within thestntute; That the siatnte
remains in force to this day, that thepaifia'
ment here halh coguiaaace af it, and that even
in the ordin:iry nay cil judicature, that if there
be B Treason and a Traitor, that the want of
jurisdiction in the judicial way, mav jnstlj be
supplied by BiU.
5. That his eodea»OOTing to sobrert ihe fan-
dainental laws andgovemment oflbe realoM
of England nod Irehind; and instead thereof,
to inLTodrrce a tyrannical gorertioieiit ^nnst
law, is TreawM by the commiHi-lBw ; that
lYeasonsat the common-law are niit taken
asray by the statute of !5 Edw. 3,1 Hen. 4,Ire>
nor unv of them.
6. I'hat as this Case stand*, it is jnst and
iwceasary to re^irt to the supreme power il^
pnrlinineiit, in case all the rest should fcil.
<>f these six, five of them areTreasiui, wittn
the compass of the laws already esAaWistied,
three witliin the sututo of aSth Edw. 3, anrf
one within tha Irish statute, the ether by the
coinmoD law of England. -.^f but (toy one of
cfaese six considemtion) hold, the caraaiou
conceive, thatnpon the whole matter, (hey had
good cause t*) nais the Bill.
My Lords, For the first, of Levying War, F
shall make bold to read the case to joar lord-
ships befm-e I speak to it, it is ihus. The Earl
did by warrant under his hniid and seal, gi«tf
authority to Robert Saril, a serjemt at anns,
sod hit deputies, to sets such aombera of sol-
iliers, Lotse and fool, of the atiii; in IieUnd,
tof^ether Hilh hji officer, as ibe legeaut should
think lit, u(ion bis mnjc^ij's subjects of Ireland,
Ligaiii^t (Ufir wilt ; diis warrant was gntntod by
the Rirl tu ihe end, to compel the subjects of
Ireland to st:bmit lo die imUwfid suymDns
and imlpri made by the Earl apon pap«T peti-
tions, exhibited to hitu in case of private mte^
rest between pnrty and party; this wanaBt w«i
executed bySavil and bis deputies, by fcniiig of
soldiers, both horse and loot, upon diven of ilie
subjecis of Irdand u^iiitt their wills, in war>
like manner, and at divers times tha aahGen
continued upon the parties, upon wham ibev
were seased, and nnsted their gn6ds, until sacii
lime BS they had submitted iheaaselves unto
those summons and ordets.
My Lords, Tbtl is a Levying War witUn dw
14S1]
STATE TRIALS, 16Ciiau,esL 16*0.-Jbr Ifi^ Trtaton.
statute of iSA Edw. 3. The words of th« stn-
t»te are, ' If aaj man do levy wtt ngainst our-
' lord the king in bis reihn, this is declared
I ehnll eedesTOur in this to mske clear tn
your lordships, 1. What sliall be n ievyinf of
wBt, ill respect of the miitiTe or csose o! it.
3. What ihaJl be shkI a levying of wsr, iii re-
spect of th« action or tiling i>one. 3. And in
the third place, 1 shall apply them to (be pr^
It njll be granted in t1ii« levying of •mr, that
forces inny be raised, und likewiw umU Hi war-
lite manner, mid yet no levying of war wi(hin
th« st&tine, tliiit a, when tlie force* are raised
HDd employed upon private ends, either of re-
venge or interest.
Before thia stntula in Edwaril tlie Ist's time,
the title of A Cnstlc was in diflerence betireen
the earls of Henrbrd and Gloucester, for the
mniniaiiiiDg of the pOiSt«aioD r>n ibe one side,
and gaiuing of it on the other; forces nere
ntised on eitjier side of many hundred men ;
they marched witli hanners di^Uyed, one
aguinst anacher. In the parltaineiit, in the 30th
^esr of Edonrd 1, ^is was adjudged only Tres-
pass, end either of the earb Jioed 1,000 mnrks
ajiiece.
A fter the Siatate in Hilary Term, in the I5lh
of Ed<T. 3, in tiie Kiog's-Bench Rot. Nicholas
Htinteroome in wariike mauner with 40 men,
artned amnngjt other weapons, with gnnn, (so
antleut, as aj^ean by ihat Reciirri, they were)
did much sp^il in che manor of tlie Abbey of
Dorchester in tlie county of OxFbrd, this was
accounted no Treason, and so it hath been held
by the Jud^s, That if one or mors Township,
upon pretaice of savrng their communs, do in a
frircibie and warlike manner thriiw in inclosures,
this is only a Riot, no Treason.
The wfjidi of the Statute 35 Edw, 3,' clear
this point, that if any man ride armed openly
or secretly with men at arms, against anv other,
to kill and rob, nr to detain him until Ke bath
marie fine nnd ransom for bis deliverance, this
is declared not to be Treason, but Felony or
Trespass, ns the case shall re<]nnT; all the print-
ed Statutes which have it covertly or secret, are
misprinted, far the worth in itie PaT-Fiament
Roll, as appears in the irth, nre, Diacmirrt-
menl on secTttement, ojien or secretly.
So that, my lords, in this of Levying War,
the act is not so much to be considered, bnt as
in all other Treasons nnd Felonies, quo animo,
with wbat intent and pnrpose! My Lords, If
the end be considerable in In'ying war, it mrty
be said, that it cannot be n war, unless against
the king, for the words of the statute ate, '' If
' any man levy war aglunst the king.'
That these notds eitend further than to the
Cnn of the king, appears by the words of the
ate, which in the beginning declares it to be
Treason, to compnss and imagine the death of
the king, and after other treasons, this is to be
declared to be treason, to levy war against the
. king ; If levying of war eitend nn further than
to Uie penoci uf l^ king, tbcie words of the
[14S«
statute er« to no purpoa^ for then the lirst treO'
son of compaiiiog the ktng't dihtti, had fiiUy
includbd it befbre, because ibat be which levies
war against the person of the king, doth neces-
larily compass hit death.*
* " Sut does lie so ? Whero is the truth, at
th«k^ic,of this necewityP In uur Law writers,
and Treason trials, I ^at. Thej have passed
tldi cunitniction upon ]hc statute: yet not till
tbrf add to it the words ' his penun,' and mak«
moral reflections on the deatlis of -Richard 2,
and Edward S. Let them consider on the other
liaud, the case of Henry 6 ; he was twice im-
prisoned fur the eipreas purpose of preseiviog
his life, and was very careAilly preserved alive
for yenrs ; nor is it yet known hiiw he came by
bis death. The Resolution of the Judges on
the Earl of Eswu's Trial iii.tbe year leoo; car-
ries ibis necessity tirther itill. It is there de«
dared to be the consequeaca of ' every rebet-
' lion,' and not confiued to war against the
king's penon; and this is as jnst acoDclusioD
as the otber. — Examine the woids of this Law
as in Edward Srd's reign, as if it ware the law
of Poliiind, and maka out the condunon there ;
not under the prgudices and habits of thinking,
to which our minds are accustomed. — I bebeve
the Statute had in view a case of War and Re-
bellion, which might not be directed c^ainst tbs
kiug'slife: and this (pinion will be ibuud nMst
agreeable to the state of that age, by tboaa wbo
will take the ptiim to examine its history atlen*
lively, and tlie condition of ifaii and the neiri^
bourine kiugdnms. There is a great authon^
in our Taw on my side in this pvint. Chief Jiu-
lioe Brooke, who compiled moU of his Abridge-'
men! in the reigns of Hen. 8, and hii son, wksa
Treasons were readily strained to any comCnio-
tion, doubts shout the CB«eof a deaiga to deprive
^he king of his cmwn, whether it is within the
stniuie of Treasons. Because, he says, one may
(leprive,&c. wi^outdengningthedeatli; there-
fere, he adds, a statute was had for this Case
under Hen. 8, and Ed. «. See Bro. Abr. Trea^
son pi. M. What need hove we of iboref Tba
iaHbl of a Judge snder a Tudor prinoe, upo*
such a point and against the' crown, may aoord
a sntiifsnory clearance of the doubt to subjects
of a Brunswick prince. The argument, vfioa
the two cases of Levying War and depriving of
the crown, is the same. And this learned Judge
did certainly not enconrage the sepatation of
the king's authority Irom bis person, in thia
Brandi of the Law of Ti^aion,. — It vroald be
equally just to take the converse of the abmie
B^ument, and Co say, the levying war must be
dear of design against the king's life, because if
it were otherwise, there was no need to provide
fnr if by the first dause of coinpasung, Are.
Many of tbe arguments in the State Trids lead
to this inference, unknows to th^ir authors, it
is the coosei]Hcnce of lord Bacon's stntement of
the Judges' Opinion, in his Treasons of tbe Bari
of £ssei, and in many other examples. — Again,
the iuconsistency of the doctrine mil farther
appear, from tlie foUoning view of ii, If it be
US3] STATE TRIALS, 16 Charlbs I. 1640.— Trial qf the Earl tfStrq^onl, £1^*
It is a war against the king, n ben intended
for alteratiun of the laws or govern mm t in aay
part of them, or to destroy any of the gieat
officer* of the kingdom, litis is a Icvjiag war
a|aiast the king ;
1. BecnaM the king doth protect and main-
tain die Lawi in every part of them, and the
great ofliceri, to whose care he hath, in liis own
itead, delegated the tiecutinn nf them.
a. Bccausethe; are ^e kind's laws, he is the
fountain from whence, in their several channels,
thej are derived to the suWject ; all our Indict-
ments run thus, trps^iHSses laid to b« done,
' contra pacem domini regis,' tlie kind's peace,
for eioriiLtmit offences, though not intended
against the king's persoD, Hgainst tlie king, bis
ciOHD and dignily. ~
Mj lords, this construction is made good, by
divers Authorities of great weight, ever sinre
the Stature of e5tli of Edw. 3, dutvnwards.
In Hd. 9's time, sir Tho. Talbot coospired
the death of i be dukes of Gloucester and Lancas-
ter, and some niber of the peers ; for the effect-
ing of it, he hwl caused several people in the
county of Chester, to he armed in weirlike man-
nerifi assemblies in the porliBment, held in tbs
ITih R. 3, No. ao. sir Thomas 'I'albot being ac-
cused of Ili^h Treason for this : It is there de-
clared, insomuch OS one of them was Lord High
Steward of England, and the other High Con-
Kable, that this was done in destruction of the
estates of the realm, and of the U<rs of tbe
kingdom, and therefore adjudged Treason, and
the Judgment sent down into the King's Bench,
as appears, Easter term, in tbe 17tli R. S, in the
King's Bench rot. 16, These two lords had ap-
peared in the 11 R. S, in maintenance of the
act of parliamentmadein tbe year before, one
of them was sfthe Commisitioneta appointed by
Pariinment, and one of the Appealors of those
who would have ore rtbrown it.
The duke- of Lancaster likewise was one of
tbe lords, that was to have been indicted of
Treason, for endeavouring tbe maintenance of
it; and therefore conspiring; of their deaths is
said to he in destruclion uf tbeir laws; This
there is declared tn be Treason, that concerned
the person ot' the king and common-wealth.
In that great Insurrection of iLe villains,
■ltd meaner people, in Rd. S't time, they took
an oath, ' Quod regi etcouimunibuslidelitatem
levying war against the king, ti
I to
It
)t be treason to to aasume any one of them.
Of these there is none more clearly ascertained,
than the administration of justice. This pro-
ceeds from the Crown as the Fountain of Jus-
tice, from whence all Courts are to derive their
Therefore, to erect such tribunal,
t with force, (aay force suffi-
cient fcH' the purpnse, according to Faster) is
IcvyioE war agaiuit the king, by * doiug that
' which the king ought to do in government as
' king.' lenders on (Le Iaw of Trcuou, in Z>e-
»jiiig Wa/, p. 77,
' servarent,' to be tnie to tbe king and oom-
mons, and that tbey would take iiothiDg but.
what tliey paid for, punished all ibelt with dealfa ;
here is no intendment againu tlie persoa of the
king; The intent wis, to establish the laws of
Villonage and Servitude, to burn all tli^ Be~
cords, to kill the Jodges : This in the Pariia-
inentofthe 5th ftd, a. No. 31, 39, tbe first
part, is declared to be Treason against the kin^
and against the law.
In tbe lllh R. 3, in parliament, the nusisc
of Forces against the Commissionen, uppointed
by act of Parliament the year before, adjut^cd
Treason by all the judges.
Tlie statute 1 Mary cap. 19, enacts. Tint if
IS or more shnll endeavour by force, to alur
any of the laws or statutes of tbe kingdoo), be
sh.-ill from such a time tfaere limited, be ail-
judgrd only as a Felon. This ace was to coa-
liiiue but to the next patjiwuent, it is expired,
it shews by the words only, that the odence
was higher before tbe making it.
My lords, In queen Elizabeth's time. Grant,
and tliveis apprentices of London, to the num-
ber of 300, rose, and assembled at Tower-biil,
carried a cloak upon a pole instead of a ban-
ner, their intent was to deliver divers Apptaft-
tice9 0Utarprison,thathad been committed opon
a Sentence in the Stor-Chamber forriuts, to kill
the lord mayor of London, and for tettiDgpiiiet
on Victuals. In Trinity term, 37 KJjt diven
of the Judges were consulted withal, aod re-
solved, That this was a levying of war ugainst
the quaen, being intended against the govetn-
ment and officers of tbe queen, and iberefoni
Grant and others were executed as Traitors.
Afterwards, in that queen's time, divers of
the county uf Oxford consulted, to gotocetber
from house to hnuse in that county, and tbencc
Londoii and other ports, to eidie than ta
9, for the
in of aU iitclo-
4 throcghout England. Ifuthlng was done,
nor no assembly. Yet the statute of 13 Elti.
c. 1, during the queen's lite, mode it Trcasoi^
to intend, or ailvite to levy war ogaiost tbe
In Easter term sg Elii. all tbe Judges of
England met about tbe case, it was resolved by
them, that tbis was a war intended against die
queen; they agreed, That if it had been of ooa
tunnship or more, upon private interest, and
claim of right of Common, it had not been
Treason, but this was to throw in all Inclouires
through the kingdom, ivhereunto these parties
should pretend no claim. That it was againn
the law, in re^rd that the Statute of Jdmua
gave power of Inclosnres in many cases : upon
this resolution firadsaw and Burton were eie-
cutcd at Aynrstow-hill in Oxfordshire, tbe pbica
where they intended the first rendezvous.
So that my loids, if tbe end of it be (o ovet-
tlirow any of the Statutes, any part of the Uw
and settled government, ur any of tbe great
officers iotrusied with the execution of tlein,
this is a war against the king.
My lords. It will be fujtber considerable,
what shall beaccouaiedtLerviof ofVfar, ia
nGoo^^lc
1485] STATE TRIAI5.
respect of t)ie aciioas and thinjis done; there
i* » design to altrr tome pure pf the laws, and
present govcmiaeiit, for the effecting Uierfof,
people . be provided of aims, guCbilrcd toue-
tber itilo ttuopa, but ifterwards march not niih
banners displuyed, nor do bellHra fcrcuten,
whether the uriny themaelcei, and gauiering tOr
s make* it
gether upim ihts design, be
secutioii of tl>e design with fui
treason nithin the nCatute ?
1. If this be nnt n war, in respect that it ne-
cessarit; occasions hostile preparatioiu on the
other side.
8. From (he words of the statute, shallievy
nar, and be thereof probably attainted of open
deed, b; people ol their condition; alihaugh
the bnre conspirintt be not on open deed, yet
whether the armiag; and drawing of men ti>g^
ther, be not an open declaration of war }
In sir Thomis Talbot's Cnsc before cited, in
tbe ITtb K. 3, Uie acts of force are exDreitcd
in the Parliauieiit Roll ; Thnt he caused divers
of t!ie people of tlie cuunty of Chester, to be
armed in ■ warlike manner in assemhlies, here
is no marching, no banners displtjed.
In the 8th Hrn. 8, William Bell and Thorns
Lbc; in Com. Ka.nc. conspired with Thoman
Chejncy, called the ' Hcrmite of the queen of
' FBrioB,' to overthrow the laws and customs of
die realm; andfor theeHecting.ofit, tbejuiih
900 more, met togrther, and concluded upon a
course of raising ^renter forces in the county of
Kent, and tbe adjacent shires; This adjudged
Tceusoii ; tliese were open acts.
Mj Lords, For tbe Application of both these,
to tbe <.'ti$e in question :
1. In respect of the end of it: here was a
Warnigainsc theking.it was to subvert ihe laws;
this being the design for the elfectingaf it, he
nssumed to his own person an arbitrarjr power
over tha lives, libertirs, and estates of his ma-
jesty's subjects, Btid determined Causes upon
Papcr-PeUtiuQS, at his own wilt and pleasure;
Obedience nmsi be forced by the army, this it
declared by tlie Warrant,
My lords, If it be said thnt the Warrant ex-
fressetb not any intent of subverting tiie laws;
I expresieth fully one of the principal means,
whereby this was to be done, that is, obedience
to his arbitrary orders upon Paper-Petitions;
This was done in rtterence to the inain design.
In the Cases of tlie town of Cambridge and
sir William Cogan, they have formerly been
cited to your lordahipa upon otbrr occasions,
tbe tilings in themselves were not Treason, they
were not a levying of war. In that of Cam-
bridge, the town met together, end in a forcible
manner broke ap the Univeniiy-Treasury, and
took out of it the KFconls,Bnd Evidences of tbe
Liberties of the University over the town. lo
the Bther, they of Bridgewoter marched lo tlie
Hospital, and compelled the master iif the Hos-
pital to deliver unto ihem certain Evideiires,
diat concerned the (own, and forced him to
enter into a bond of 200/.
These, if done upon these private ends alone.
ChaklesI. \6v>.—fi>T High "D-auon. [1466
had not been a Treason, as appears bv the
very words of the statute of ib Edw. 3, before-
mentioned, of marching openly or secretly.
Bat my Inrds, these of Cambridge and
Bridgewater, they were of "the conspiracy with
the Villains, as appeaie in tbe Parliament-Roll
of 1 Rich. S, n.31], and 39, Mhrrethe towns
of Cambridge and Bridgewater are expressly
excepted out of the general Pardon made to
the Villains; this beii^ done in reference to
-Sat design of the Villains, of altering the laws ;
lis was that which made it Treason,
If the design went no further, tlian tbe en-
forcing obedience to tbese Paper Orders made
by himself, it was sullicient it was lo subvert
am fundamental part of tbe law ; nay, in effect
the whole law ; what use of law, it he might
order and determine of men's estates at his owu
pleasure ? This was against tbe law notoriously
declared in Ireland.
In tbe "close Roll in the Tower, in the S5th
of Ed. 1, a Writ went to ihe Juilices in Ire-
land, that kingdom at that lime was goicrned
by Justices, declaring, That upon Petitions
tbey were not to determine any Titles between
parly and party, upon ad} pretence of profit
whatsoever lo the ting.
In S8 Hen. G, c. 3. Suit* in equity not be-
fore the Deputy, but in Chancery ; suiis at
common-la*, not before hun, but in cases of
life in the King's-Bench ; for tiik of lands or
goods in the proper courts of the king's-Bench,
or Common- Pie BE.
This declared in the Instructions for InUnd,
in the latter end of king James's lime, laitl by
the Prodamniioii in bis majesty's time ; my
lord took notice of them; called I he commis-
sioners narrow-lwarted commissioners.
The litw said, >lc should not thus procecrt
in the subversion of it, \\€ saitb be will, ^nit
will enforce obedience by llie army, this is as
much, in respect of the end, as ci> endeavour
the overthrow of the Statutes of Labourers, of
Victuals, or of Mertun for Inclosures ; here is
ist the king, in respect of tbe
• " I'he some arbitrary confusion of right
and wrong, encouraged the parliamentary
leaders in Charles Ihe Ist's time, to charge lord
Strafford with having subverted the laws, and
thereby commiited High-Treason. It whs the
Article which they.lnboureil the most, and per-
haps they judged n^btly ; because, by being
general and indi'Sllnct, ic was capable of em-
bracing any olffiice That malice and faction
could 6nd no other name for. Thev could not
have attempted this with effect, if the Law of
Treason bad been properly defined ; or if the
mindsof men, the learned as well as tbe vulgar,
had not been obscured nr pcnerted by the doc-
trines which bad been long current, ou the
supposed nntljority nf adjudged Cases. It is
curious, but lamentable too, tu find St. John,
with whom tbe mainieonnce of this Article lay,
uiging them all and relying ng^on them, to
prove lord Strafibtd guilty. Thus did tbs in-
ff. Id mncct of the Aciioiu, Kbetlm ihen
be either a Levying ot' Wur, or aa ofua deed,
My lords, Tbere \na ai
n Ireland nl
T thi»
U87] STATE TRIAt^, 16 CHK*t.as I. 1640.— THdtfiJuEiirlqfSlrmffbrd, IHH
ner mnested apoD die nhject, wkirh UUcJ
Cheir cattke, consumecl atid ivmted ttieir ipial*.
Your lrirdihip« observe b frcat diffc rente,
where six men gn opon ■ dni(;n ahiiie, mat
nben Eencfrom an army of 600,all eagii^d n
the wine service, %o many were smt tu vrere
3u£cieat to ciacata the commmiidr if npna •
WMU ouui fewer, more upon a rich ; if the n
bad DOl bean able, the nhule anny mutt maka
it ffiod. The reiison that the ShcriS' rtirrcicd
alone, or bat inlhoD« biiililf tud'>axecutioB,
is, lecaute be hatb ttie coinmiad uf iheJ>v,
the Liiii^'s writ, and the Dotir cumilalut in aam
of miuance. Here is the Warrarttof k G«e-
rslof an Anay; Here is the pant ei^ritat,
the Power of the Amy, under the awe of tfa*
wboLe Aimy lii may fiirce ffuire, tjiaa v\tf
wilhiiat h; and although never above lii ia
Dae place, yet iu several part* of ifaa kmgdant
at iht same liiae, might be above sixty ; fir
secting of SoldKni naa frequent, it wus ibc or-
dinary conne for eiecution afbia orders.'
The Loid-Lieutennnt of a (.■ouciy i>^ Ea^
land harh a design to altar the \vii aiid ;»-
verntnent ; nay, admit the desif^n goes act tti
hijili, be only deciarei thus much, be will order
the fraehulriers uud eitato of the inhabiiani*
□r the county, at his own n-illnnd pleaMire, aD4
doth accordingly proceed upon Puper-lVtiiioii*;
Turefceeing (here will be diwbedieuce, he e.ntM
out Warrants under his Land and seoL to tb«
depu'y-tieiitenanrs and capUinsof ibe Trained-
Kinds, that upon refusal, they will take sucb
number of the Trained-Bands throut;h the
county, with ofiicen, rs they shiili think ^ood,
and lay thiin upon the lands and hoiMC* of
the refijsers, soldiers in a warlike laaMierai*
Frequently sc»ed upon them accordiH|Iy ; yuur
lor(tshi|is dn conceive, tbiit this la « \tvjing tS
war within, the statute.
Ttie Case in qneatioo goes hrthn in theaa
two respect*: That it is rnorc a^nasit ibed»-
clared law in Ireland, not only aninM the
Common-law, but likewise i^ainM the StMate
of 38 U«n. 6, against ihe Acis of the Cumatii*
Warrdnt there is a lull designation
whole army, and aa assigcoient of it over to
Saville for this (lurpose. The Warrant |;iv-e9
biiD power fniin time to time, to take Ha many
Boldiers, hon-e and fool, with an office thriiugh-
oat the whol« army, us himself aludl pleaae ;
here is the terror and ftwe of the wliole army
to enforce ohedicnce. My lords. If [ho Earl
had armed S,OUO horse and foot, and fonried
them into compuoirs lo this rod, your li>id-
■hipi would have conceived, that ihi^ had been
» war It is as much as in the case of sir Tho-
mas Talbot, who amed them in aiseniblies.
I'his is tlie same with a breach of trust
added to it.
That Army v>hich was first raised, nnd afker-
wardi committed to his tniM, for the defence
of the people, is now destined bv him In their
destruction. Tins assignation ot' the array by
bis warrant, undtr hia hand and seal, is an
open net. My lordi. Here is not only an open
act dune, but a levying of war, soldiers, both
borse and fuot, witli an officer in warlike man-
JHSlice of c
Sui-h inLii a:
wccirt ibe i
St. John sec
, in the injtistice of a popular
So hired it, too, Kith Laud.
be cannot coiophiin, when they
Tie iDcHSiirc as they piete. Mr.
s not inure unjuit (hao his prede-
a have as good re;ison us they,
vben he concludes, ■ This is as much, in re-
' Sjiect bF the end, aa to endeavonr the over-
' throw of the Statutes nf Labourers, of Vic-
' tuals, or of Merton for lodosiires.' — Judge
Jenkins, who was imprisoned by the ParliB-
ment tor his cnaity to ihem, employed his
hours of conCirKinent in collectiiig toijetlier ilie
TBrioits Bcti of Law-Tyranny which they had
practised. He chiefly drew bis (uiuta ot cu»-
Structive tmu'ia from St. Jiihn's Argument,
published bv their aathority.and retorted them
vpon hi; enemies, in order In pmvc ili?m, by
their own oracle, guilty of Hich-Trenson. —
Some of the Articles againsi Cardinal Wolsey
contain this Char^ of subverting the laws,
enforced in the same loose mauner, but tboa|;h
there are 44 of them altogether, they do not
ftrain the point to the conclusion of High-
treason against him. These Ariieles were ibe
acts of the Privy-Cotmcil, and probably drawn
by sirDiomos More tl>e Chancellor. Of the
same kind are tlie Articles (of High-Tronsnn
ta they are called) against Seymour lord Dud-
ley, which rxliibit a curious mixture. At ike
end of 39 Chitr^es of Scliemes of Ambition, as
like Adalrerv as Treason, there is an er^o he
mspired to <he dignity royal. TIte jlrticles of
Accusation ngainst nis brother tbe Protector,
though more treasonable in their nature, are
not called by ttiat name." Laden uu the Law
ofTreuon id Levyinj War, 83.
. _ t I'
of the lair; af^ast ilnt himself took nalice of
here wai nn Army, the suldiets by |iiii6 iikui,
acts of hoitibty trom iliam of greaxer terror,
lh;in Urom Ireehnlders ef the same mnniT. —
Mv lorils, i liave no* dou with the first of L*-
vving of War.
' llie Second is ihe MactiinatioD, the Wrisbif
of a War. The ensc in this^, rcstsopoD a Wm^
rant to SaviUe, and ihe advice in ttw 93d Arti-
cle. The Watrunt shews a resolution of em-
ploying the otd Army of Ireland, lo the c^
Gesiionof hia majesty's subject*, and thclann.
the SSd Artide, bavmn toU hil majcat^,
that he waa kioied aad aheolred frara rowi of
government, and might do erery thing whieb
power m^lx vdmit; he proceeded luithar is
speech to his m^ee^ in these words ; ' Yoa
' have «Q Army m Ireland, jpoa m»y ftnptoy
' to reduce this kinKdom.'
Mj lotds, Both bca^ ptit togetbir, tbcn it
I4S9J
bTATE TltlAI^, Ifl Cii.«LE» 1. liiW.—M High Treatoa.
[uai
a MachiiMtion, a practice, un advice tr> J^tvj
Wur, and by furce lo o^preu und d<.sliuy lu*
(najeitji'ii subjecw.
it lurli bten saiJ, die Statute of 'J5 Ldw.
3, is a penal luw, uiid caiiiiot lie taken liy
equity and coruructiaa, tlcra mu»t Iw «u ac-
tual war; tlie Statute iniikes it Treaioii Ui
counterfeit the king's Coin, tJie cnnspirinp, the
raisioz ot' FuriincM is no TreMOii, 'Unles* lie
(Jutli JVumHtiw pircuUre, actually cuiii.
AIj Lordt, Tills is only lakl, UQt proved ; tlie
la* a otherwise, U> Hen. fi, fol. 49, then; ad-
judged, TbM the cumpiriug and tkiding to
cuuuierfuit Coin was Treanun, and Justice
StamliinJ, fid. 331, and 41, it ol' upinion, tliat
tJiis,or the coutpiriu^ to counterfeit the Great
Seal; is Treu»J3n. Tlie Statute is, Ifauy tball
cuuiiterleil Uie Grmt Ssal, conspiring tu dn it
by the Book is Treusuii ; if a man t^iLu tha
Broad Seal riuni one patent, nnd put it to ann-
ttier, here is no counterfeitini^ it i^i taniamount,
Kod ihecelbre Treason, aa a adiuit|;ed in 2 II.
4, ful. 35, and by tlie opinion of Stamlurd. If
MacliiiiittiunorPluitiiiK a war be nut within
tlutdauneuf tlie Statute of Levying of War,
j'ct it li witliiu die lirii, of compauiug the
rieaih of. the king, as that wtiicli necessarily
tends tutliedettrucdun both of king luid people,-
upon wlioss safuty and protection he is to en-
£»ge liiinsetf. That this is Trcnsdii, hath been
adjudged, both alter the Stmutes of 1 Hen. 4,
c. 10, Bod 1 (juceii Mary ; so much insisted
upon on the other tide, in ihe 3d year of
kini; Uen. 4, one bitlshal- coming from I.undan,
fduud one Bernard at plough, in the parish of
Olley,iu the county of llerd'ord, Bernard nsked
Baialial what newnMie told Itiiu, that the news
was. That king Uichard the Sod was alir^ in
Scotland (which was false, for he was dc.id),
nnd that by Midsummer next, he nould cnme
into Eujiland ; Bernard asked him. What
were hcit tu be dune? Balihat answered. Get
men, and ^n to king Richard, in Micliaclntiis
Term, in die 3d year of lien, 4, in the Kin|;'s-
Bencli rot.' 4, this advice of War adjudged
In Queen Mary's dme, sir Nicholas Throcl^'
niorton * conipired with sir I'hoiios Wvui, to
lecy war widiin this realm fur alteration in
lUligion, be joineil not with him in the execu-
tion. This con^iracv albne declared to be
Treason by all the Judges ; this wits ofier the
Statute of queen Mary, so much insisted upon.
Tliat Parliament ended in October, this Upluion
was delivered tha Easter term fnllowin;, and is
reported by justice Dyer, ful. 9B. It is trup,
sir Tliumas Wyat afterwards did lery irar; sir
Kiclwlai TbrDckioarton Ite only coiifptred.
This adjudged Treuw>n.
One Story t in r|ueen Elieabetb'a time prac-
tised with fiireigners, to levy War within this
kingdom, nothing dune iu pursuance of the
practice. The Intent, without nny adherini; to
enemies of tlie queen, or other cause, adjudt;ed
Treaaon, and he executed thereupon. It is
•SecTol. 1. p. MB. tibid. p. aai.
true, my lord), that year 13 Elii. b; act of par-
liainenl it is in;ide Treason, in intend die levy-
ing 01 MOT; (his Case was adjudged helbie the
pu'lkuiicut 1 rile caf« was sdjudgeil in Hillary
tPriti; the p:irlinmunt bc.(U)i not dll the April
fuilooing. Thn, i»y b>rilt, i» a Case judged ii
pon
ii)|j; be done i
c pmctisini; Iu levy War, iIkiu^Ii
—It iiuiy be iilijiciej, That iti
||-.UUDE I
loms, Di
Iter dtstruciion, as well at ol tlie kii^-
tlie king.
-TitcAniweri>tinit,Tli:iIlhe WtirraDi
unknown to his majesty, (hat nn* a Ma<
ation I'f War nguinst the pen,- le iiud lawi.
Kin liis njBJestj's ptraon \ias ciiL'.'gfd fur
doms, nere the ad lit
btcundly, Thnt the Advice was to hit inaies-
ty, a;;graTates the o^l'ince, it was an atunipt
ubich wai tha offence;' it was an attempt uot
only upou the kingdom, but upon the bocrei)
I'crbou anu his OOice too ; hirntetf nns lioslu
patriit, be would have made the father nf it ti»
to : Noihiog more unnatural ndr more danger-
ous, than to offer the king poison to drink ;
teLing him that it is a cordial is a pMiing uf hilt
death 1 die poison was repelled, lljeie <vns an
antidote within; the malice of die eiver beyond
expressioji^ I'he prrkuniling of Forngneis to
invade the kingdom, hold no proporLinn nidi
thi) Machinadon of Warj ngainst die Uw or
kingdii'n, is agnlnst lbs king, diey cannot be
, My Lords, If no actual War within tiie Sta-
tute, if the counsels ii|; of war, if neither of iheic
tiingle nets be I'lcivion niiliin Uie Mututu, The
Uommoui, iu the next pbcc. have taken it into
cousideralion, «h.it the :tdditIon of his other
noids, counsels, and actions do n|ier.iti> in th«
case, and have couctived, thut \ridi this addi-
Unn, all being put trn-elher, that bo is brocjht
widiin the statute i>lii.-> K. 3.
The words uf the Statute are, ' If any taeu
' shall compass, or imagine the delth of die
' king;' the words ftre not, ' If any man slialt
' plot, or counsel the death of (he kinn / No,
my lords, they go further than to such things as
arc intended imniiedialely, directly, and deter-
minauvely aiiaitist the life and person of tha
king, ihey are of a la^er extent ; to compass,
is to do by circuit, to consult or practice niio~
ther thing directly, which being done, may nc-
eet^arily produce dils eiTect.
However it be in the other Treasons within
iliis Statute, yet in this, by the very worila,
there is room left for construe tions, for necessary
iufFrences and consequences.
Wliat hath been ibe judgment aod practice
Df former dmcs, concemiag these words, of
compassing the king's denth, will tppeai to your
lordships, by some Cues uf AttaiiKJer* upon
these words.
One Owen, in kinj James's time, in the 13ib
year of his reign, it Snndwicl. in Kent, spake
these worts, ' Tbnt tins Jjtiics bcng eiooiii-
' municatvd by the Pi>ii*, may li« kiUad ^ aitf
I«I] ^TATETRIALS, JOCh.klbsI. 1640.-
' min.whichkiUiD^isiinmurrfel-i' Being sskeH
b> th'.>K he spake lo, lion lie duni uiaiiiUiD
vj itliiodv an aiserlion ? Answered, ' llut the
• rTiailcr was not so heiooiM M was supposeil
' I'lrllie kii>^. who k the Icsfer, ia concluded by
' ihe Pope, who n the greater ; anil, as n male-
' foctor, beins condemned liefoie a tempoi
'judge, ina;F be deiivrred oier lo be CKecuced;
' fi tbe king, stauding coavicled by ibe Pop*'
' Sentence of ExcomiDuoicBtioo, majr Juttlj be
' ilnt^litered without fanlt; Tor, the killing or
• tbekinsii the execution of the Pope's supreme
' Sentence, m the other is the execution of (he
' Jaw.' Fur Uiii Judgment of High Treason
was given ngoioit him, and execution done.
Mj Lords, tUere is no clear intent nppeanng,
tint Unen desired the thing ibould be don*,
only A^mmti that it might be done, this is a
compBHiiig, there is a dear endeavour to cor-
rupt the judgment^ to take off (tie bonds of con-
., ....... ,j,jj.^^
eLord
he. ' thml I should stretch out my baud
' the Lord's ano'nied :' No, saiih lie, tli
dotfa iHit fiirbid if, you may, for ttie^ r
LiwfullykiUtheLiug.
He that denies the Title to the Crou
plots the means of setting it u|)oo nnother't
head, may do ihi« without any direct, or imme
diate desinng the dCHtli of lum that wesrs it
yet itiis is Treason, ns ivas adjudged in tlie lOtI
of Hen. 7, in these of IWton, and in tbc duki
of Nurfblk's cnse, 13 Eliz.
Thi, is ■ compassing of his Death; for then
i-jn DO more be t»o kinns in one kingdom, then
two suns iD llie tirnianwiit ; He that
a title, counts it wortii rtntuting for, tlioueh it
cost him l.i* life: he timt is in pussesiion tliintt
it ns well wortli the keeping. John Sparheuk
in kinT Henry the dtli's time, meeiine; two meu
apon tlie way, annni2«l other talk, said, Thai
tlio king was not rightful kini", luit tlie earl of
MHtrli; and that ilie pope nould ci'^nt indul-
gence! to all, that could assist the Karl's Title,
and Ibat within half a jear there would be no
Livenr-s nor Copnijances of tlie king ; that the
kins; had not kept proiuise with the people, but
lisd laid Taxes upon tlieui.
In Easter-Term, in the 3rd vcar of Henry the
4ih, in ihe KioK's Bench, rot. 19, this adjudged
Treason, ibis denying ibe Title with motive!,
though not iniplyedly of action aeuiiiEt it, ad-
jui%fld Treason ; this is a compassing the king's
How this was a compassing of (he king's
Death, i< declared in (he Itessons of the Judg-
ment; that (be words were spoken with an in-
tent, to withdraw ihe affections of the people
from the king, and to excite them against liim,
Ihat in the end they iiiifjbt rise up agninst him
in mort.-m (( deilructionrni of the king.
Mt Lords, in this Judgment, and others,
whicli I shall cite to your lordsliips, it appears,
thatiiisftcompMiinglheling'sdeBthbywords,
to endeavour to draw the people's hearts from
the king, to set discord between the king and
theai, wbwebj the p#'.f(e tlmidd leare the
■Trial if ihe Earl ifSlraJhrd, [U9i
the death
kin^, should ri«e up againi
■nd'deMnictioDoi the king.
The C::^e1i llj:;( I shad cite, prore not only
that i( i, J'-eason, bot what is sulncienl En-
dence to make this cood.
Upon a CumniKsiiin held the tStb Ed. 4, in
Kenl, before the marquis of Durtet. and others,
an Indictment was preferred Rgain-t Jabc
Awnter, of liiih Treason, in (be lonu befure-
.nientioned, tor Words, which are entered in tL«
Indictment tub hac ftiraa : That he bad bees
serraiiC lo the earl of Warwick ; (hat though
he were dead, the earl of Oitiird was aliie, Bftfl
should have the governnient of pnrt of that
country ; That Edward, whom yon call kin^ of
England, was a false man, and had, by art and
sobtilty, slain tlie earl ofWarwick, and tbe duke
of Clureuce his brother, witiiout any cause,
who before bad beta both of (been attainted ut
Uigli-Tre^son.
AIj Lords, This Indictment was rctDmed
into the King's Btnch in Trinity- term, in ibe
ISih Edw. (he 4'h; and, in Eatter-term| ti^e
8Sd of Edw the 4tli. he was outlawed, by the
stay of tlie oullaivry, so loDg as it seems the
Judges had well adiised before nhether it were
At the same session Thomas Heber (r:u in-
dicted of Treason for these words, 'Thxiitlie
* last Parliament was the most simple and iu-
' sufficient Pariiamcnt tint ever had been in
* England; That ibe king was gone To iire in
* Kent, because that for the present he bad not
' the love of ihe citizens of London, nor should
' he Imve it fur the future : That if the brsbop cf
' BaNi and Wells were dead, the orchbisbnp of
' Canterbury being cardinal of England, would
■ inuucdiateiy lose his head.' This Imtictment
was returned into the King's Bench in Trinity-
term, in the iSihof Ediv. 4th: anerwait^s there
came a privy-senl to ibe Judge lo respite ibe
Proreediags, which, as it should seem, was tu
the intent tlie Judges might advise of the Case,
fur afterwards he is outlawed of Iliglt-TreasoR
upon this Inilictment.
These words are tliougUl sutBciiut (viderce,
to prove these sc-vemi Indictments, that thev
were £pi)ken (o iiiAidraw the people's Atf«>
tions from the king tu excite them against him,
to cause rictn^s against bim by tlie people, it
mortem tt drtimtlionmi of (he king.
Your lordships are pIcHsed to consider, TS.it
in all these Cases, (he Treason was tor •rori'.
only, Hurds by private persons, and in m more
oiily atnnngst the people, lo excite tbem ags nst
My Ijjrds, here are Words. Counsels, more
tlian Words and Action; too, not only lo diwf-
fect the peojila to the king, bul the kinc hfce-
wise townrds the people ; not once, but oftea ;
not in private, but in places most public; not
by a private person, but by ■ counsellor of
state, a lord lieutenant, a loni- president, a lord-
deputy of Ireland.
1. To his mnjetty that ihc parliament had
denied to (apply him : ■ Zander upon ail tl-c
14»S}
STATE TRIAtS, 16ChaklesI. \UO.—Jbr H^ Trtawn.
coramonl of England, id their afTcctions la tlie
king aod kiogdam, iii refusing lo yield tliuel;
siipptji fur the nccesEiiifs oftl^e king aiiU kiiig-
3. From thence, that the Jtian nns loose, and
absolved From rules of govenimenr, and nas tn
da eiery thing, iliat paw«r would admit. My
lords, more cannot be said, they cnnnot lie ag-
gravated ; wlialcver I should any would be in
dimitiuiion.
S. Ttience ynu hare an Army in Irel^md,
you may employ to reduce tliig l^iti^dorn.
To couuHfi B king, not to love lu< people, is
very uooaturAl, it goes liiglier to hale ihcm, to
malice them in his heart, tlie highest eipres-
kioiis of malice todfstroy ihem by war. Tiiese
coaU ibey were cavt upon his majesty, they
nere bto;in, they could not kiudle in that
Tlicuce, my lords, having done the iitiuost
to the Kin^, lie goes to the People. At Vork,
the couuiry l>eiiig met together for Justice, Ht
the ufieo Asiizcs upo[i tite bench, be tells them,
speikinK of the Justices of the Petice, that they
were all for law, nothing but law, but they
should iind that the king's liitle finger should
be benTier than the loiues of iIk law, as they
Bhall find. Aly lords, Who speuki ibis lo iliu
people, a privy-counsel lor f tliu must be eitlier
lo traduce bis majesty lo the people, as spoken
from him, or from liimself, who wa« Lord-Lieu-
tenant uf tIte county, and President, intrusted
with the forces andjustice of those parts, tlint
he would employ both this way. Add, my
lords, to his Words tt«re tbe exercising of an
■rbitracy and vast Juritdiction, befjre he had
lo much as instructions, or colour of warruni.
Thence we carry bim into Ireland; there he
represented, by iiis place, the Sacred Person of
hi) muesry.
1. There at Dublin, tbe principal city of
that kingdom, whiihcr the subjfcis of that
country came for juiiice in an Assembly of
Peer*, and othera of greatest ronk, opon iiqca-
lion of a Speech of the Recorder of ilmt city,
touching their francliisi.-» and regal rights; he
tells ibem. That Ireland was a conquered na-
tion, and that the kiug might do with them
kihat he pleased.
9. Not long after, in the Parli.imeni 10 Car.
in the chair of state, iu full parliament aKoin,
That ili^y xvcre a conquered nation ; and that
they were lo expect lan-s aa from a i-onnueror,
belure tlte king mifia do wiih them whut he
would, now ibey «ere to expect it that be
would put tfais power of a Conqueror in execu-
lion: — Tbe circamsmnces are very consider-
able; in full parliament; frotn hiiuaelf t» Ca-
thatra, to tbe representative body of the whole
kingdom.
The occasion adds much, when the^y desired
tbe benefit of the laws, and that their cau
and suits might be determined acrardini;
law, and not by himself, at his will and pit
sure, upon Paper Petitions.
3. Upon like occasion, of pressing tbe laws
and statutes, that he would make tu a' '
[UW
Coancil-Board in that kingdon
:t of parliaraeal.
He made bis words good by his action*,
led and exercised a boundless and lanlesi
lictioD over the live*, persons and estates
i majewy's subjects, procured judgment of
dentil agoiust a peer of ihat realm ; c^inmaiid>
ed anollier to be hanged, this was accordingly
executed, both in times uf high peace, wjiliuut
any process or cnlour of law.
5. By force, of a long time, be sEiied <lie
Yarn and Fhix of the subject', to ihe siaiuiufc
indoing of many thousaiiN; besides iLc
Tobacco businc!?, and many iivinopuliis and
unlawful taxes; forced a new Oalb n .t to dis-
pute his majesty's royal cunitnands; dctermiutd
inen'scstnted at bis own will and ple:isure,upin
Paper-Petitions to himself; forced ubudit nr.«
to these, not o^ily by Rnes and iii<pri>onmeul,
but likewise by the army; sesscd soldxrs upon
' rfusets in an hostile manner.
Was an Incendiary uf (he war between-
the tno kingdoms of England and Scotland.
■ My lords. We shall leave it to your lordships
judgnieots whether these Words, tJouiisels, and
Actions, would not have been a sufficient Evi-
dence, 10 have proved an Indictincui druwn up
IS1 liim, as those helbrc mentioned, and
niany others are? That they were spoken and
done to tbe intent, to draw the king's heart
fromiliEpeople, and theaflrctionsofihepeopk
from the king; that tliey niii^ht leaie llic king,
and afterwards rise up against him, to the de-
struction of (be kiu^: If s^, here is u compass-
ing of the king's death, within the wunla of tha
StiHute of 35 Edw. 3, nod. that ivarranlrd l.y
majiy farmer judgments.
My Lords, I have now done with ihn three
Treasons witiiin the Statute of S5 Edw. 3. I
proceed unto the fou'tli, upon the Stntuie of
18 lien. C, c. 3, in Iielnot^ and I shall make
hold lo read the words lo your lordships:
■ That no lard, nor any other ot what condition
' soever be be, sliall bring, ot lead Iloblers
' Kernes, ot Hooded men, nor any other pso-
' pie, nur burses, to lie on Ixirsebark, or on
' foot, upin the king's subji.cts. without their
' good wills and consent, but upon their owu
' costs, and without liuri doing to tbe cnminims;
' and if any so do, be shall lie Bitjudged as ■
1. The Argument that balh been made con-
cerning ihe Person, that it extends not to tlia
king, and therefore not to bim, weighs noiliiii^
with your lordships, ' Ilex non babet in regno
* parem ;' from the icreatnesa of bis Office, to
ar^ue himself into the same impossibility with
his sacred majesty, of being incapable of High-
Treason, it u an Offence, no Treason; Tlie
words in the Statute, ' No lord, nor anv other,
' of what condition soever be be,' include eierj
in Trinity Term, in 33 Hen. a, in tlwKing'i-
Bencii, Leonard lord Gray*, haviuit immedi-
ately before been I.ord Deputy of Ireland, ia
• See vol. t, p. 439.
nwlc
14»5] STATETRIALS, IfiCaAiiLEs I. I6i0.— Trial of the Earl <ifSiraJbrd. C'*
ntlaiiiitrrfof lligtt-Tieason, nnd Jud^nieiit given
ngainsi him, Tor kttiitg divers Hebels out ul' llic
taatleol'Uublin, miii (7iwh:ii^iii!;Iri*h Ilostancb
and Pled)(e9, tliac ]i:id been ff\ca fur secur:ii[;
ttie pe^^cf ; for nut piirLi.-liirig one thcit suid,
Tlial Uie tills; "iis an Heretic : 1 liave read llie
whole Itccurd, ilii.<rc h m't one lliiii;; luiil to Ills
chart;e, but (mis done by lii:!i tis Jvird Lieu-
tenant; He l>a<l the innie tdca »llh mv Lord
iifStrnfibrrf; Thai the-,e t!]iiii;s were no adJier-
ing.to the LiKji's enemies, Lii
s of s:
n tho!
words of the Statute of 25 Edw, a, Imii^lf be-
ing Liird Liciiienaiit llicic.
Object.— It h:ith bc*ns:(ld. That the Soldier*
•esicd upon the lubjecis b; him, nor/ not iiiich
persiins n! arc intended by that ilaiutc, llnh-
lers. Kernes, and Hooded men, tlnJic niscallj
Anaw. — Mj Lord?, they were the nnmea
given tu Ihe-9oldi;'rv '.f th<i!C tinics, llublers,
Horsemen; the olhinhe Fdm. B.itlhc iiordi.
of the Sialute g^ furtlicr, Nur anyother people,
neither horse nor foot. Ilts toid>hip sCised
□poti them both hurae and foot.
Olject.— The Sintnic tuttnLls o:ily to those,
tint lead or bring; Saiil led tlitni; inv Lord
■onlv gave the Warrant.
A1.5.V.— To tliis I sbali only ?ny ihii-, ' plo*
' peccol nuthor, r]Uam .ictiir,''by tlie luleol'ihe
law ' neentes el consenlienics pari plectiintuc
' pxiia ; if cnniont, nnich more a coniinand to
di) it, make! the commatider aTraitijr; If there
1)0 any ireasun within this statute, my lurd of
NrafTord is guilty.
It hath been ilierefore saidj That this Sta-
tute, like Goliah's sword, hath been wra^it np
in a cloth and laid behind the door, thnt it liatU
never been put in exccnilon.
My Lords; if ihe Clerk of the Crown in Irc-
]iind, lind certified your lordships upon aenrch
nf the judgments oi' Attnindors in frelinid, lit:
could noi find thnt nny man hnd been attainted
upon this statute, your lordships had had some
ground to believe it; Yet it is only my lord
of Siraftbrd's aifiriDDtion ; besides, jour lord-
ships know, that nn act of parliament binds
until it be repe;iied.
Iihuth bEL'n tl.erefore said; That this Stii-
tuie is repealed by the statute of 8 Ed. 4, cap.
J, and 10 Hen. T, c. 21, bec.iuse by ihesc two
Btnlutta, the Endish slatuti-s are brought into
Inland.
The Argument (if I rahtm>V it not) stood
thus; That the .Siatnto of 1 Hen. 4, c. 10,.
Etiith, Tliat in in> lime 10 come, Treason sImII
be adjudged otiierwisi', ilien it wasoidaiiied bv
the statute of 25 F.d. 3, that the reason men'-
tinned in 18 Urn. 0, in the Irish statute, is not
contained in ^5 Edw, 3, and therelbre contrary
to the sintute of 1 lien. 4, it must needs be void.
If rhis ncre law, ibcu all the Statutes that
inade any new Treason after 1 Ilcn. ^, were
voia in ilie ii ry fnbrick, and at the titne when
tbej were made; heiire hkewiae it would
follow, that the parLauieiit now, upon what
er, liatb no poiicr 10 make any
thing Treason, not declared to be »*> in tir
statnte ai Ed. 3. TJiis, your Inrdsliips easij
see, would make much for the lord of StralibH'i
iidviintage, but why the law should be so, yotr
lordshipa have only a> yet heard an atHrmaUa*.
Cm some touch was ?iTen, that ilie Statntf
of 10 lien. 7, in words, niake all ihe Iri!>h sti-
tutes void, wbich are contrary to the Knplirt.
The AnsiMr tu ihis n a denial that there sre
any 'ucli worrli iu ihe Statute. 'J'he Slati-tr
dechiies. That the English Statutes shall be
eil'ectunl, and contirmed in Ireland, nnd tfant all
the statutes niadu before time to the contrvij,
ehnll lie r^'voked.
This repeals onlv the Irish .Statutes of I>
Hen, -1, and 20 Ij'en. 6, which my, thnt the
Kiicli-'hStRtulcs shall not be iu Ibrcc in Ire-
hijid, unlc!s particularly received in pnrliiimcut.
it makes all the Iriiili Statute* void, wbicti say,
that the English Statuies^hall not be in fon'-c
there.'-Il is usual when a Statute snys, that
sncli a iliiiig shall be dune, or not done, to »•
.tall .-^
.l.iill
of Tr»
Ihe chap
der iheie i' in:ide Iri'.ison, ns if dune upon (he
ki:.2'spe™.n,
'I h»t this Statute of 18 Hen. 6, remains on
f .^t, and not reijc;ded cither by ti.e f^tsiute of
8 Kdw. 4, or this nf 10 Men. 7, appears c\-
prs'sly hv twoftvcr.il arts of parliament, made
iit li.c s.rnie pariLimmt of 10 Hen. 7.
I)y an act of parlianieni of Heury Olh's time
in Ireland, it was made Tie.isun lor any man
wluitsdevcr, to |rocurc n Pnvy-.'>eal, or any
oilier coniniand whatsoever, for apprrliendmg
any persiin in Ireland for Troson done wilh-
ont that kingdom, and to put any tiH K uim-
maiid ill f lei-ution, divers h»d been ati-.iiikled nt
I'rciisun for executin)[ such commands : I'brre
is a Tre-.isin, so made, by act of partiMiirnl, in
Henry flth's time. In ihe Srd chapier of this
Parliament of 10 Hen. 7, nn act is [Kiased for
no other end than to repeal this Siatute of
Hen. 6, of Treason. ,
IfthisStatuteof Hen. 6,ofTrea!on, hid been
foimerly repealed by the Statute of 8 Ed. 4, or
then by the 2^od chapter of tliis Parliament uf
10 Hen. 7. by brini;ing in the- English Stntdies,
ihc law-mnkers were much mi«iaken now to
make a p.ijlicular act of parliament to repeal
it, it being likewise so unreasonable an ■« as
In the 8th chanter of thij Parliament of 10
Hen. 7, it is enacted. Thai ti.e it^itute. of Kil-
kcnnv and all other itat.iies made in Irctuid
(tH„ only excepted, whereof this of 18 lien. 6,
i> none) tor the common-weal, shxll be en<|niitd
of, and PxeciiteJ : My lord uf Strafliird saith,
that the bringing in of tha English statute hath
repealed this Statute; the act of parliament
made the slime time, saithao; it suith, that all
the Irish Statutes, eTcentine tw^, whereof thl»
is none, shall still be in fiircc.
Object.— Oil, but IwtrcTer it was in 10 Hen.
1497]
STATE TOIALS, leCnAHLEsI. \GW.—f^ Iligit Treaim.
[I49S
7, yet it appears b; Judgment in PaHiament
nfterwArd?, ihnt this Statute of 18 B. S, is rv-
S:aled, and tliM is bj ibe pnrhainpnt or 11
liz. c. f , ttiRt bj this pnHiiunElil it is cnaettd,
TtiBt irniij' niai), without litrnce fraia the Lorn
Dcputj, lay nay soldiers upon the kitif't iub-
Jects, if he hp a peer of the lenlui, lie shall t'or-
teit lOD'. if under ihe degree of ■ peer, 100
mnrlis. — This Stntute, lu is aliedged, (teciar«s
the penabj nf {ij'ma soMicr* on the subjects to
be- only lOM. nnil therefbce it is not Tre-.ison,
Aimr.— My lord), if the offence for which this
beiuiliyaf 100/. islaid upnn theoETenders, belbr
iaying Soldiers, or leading them to do any act
offensive or invnsive upon the kinc's people, the
nrgumenl hnih sntne fi)rce ; hut that the offence
is not for laying soidJets upon the true suhjecls,
that this is not the Oflencr intended in the Sln-
tuie, will appe-.ir lo your lordships es ebmrJr;
from the words of it. The words are, 'Thnt
' if any mnw slisU aa-etoble the people of the
' county together, to conclode nf pence or war,
' or shall cnrry tho!e people to do any nets
' offensive or inrasire, then he shiill forfeit
If concluding of will', nndcairymg the people
to nets invn<ive, he nt^ninst the kind's snhjecis,
this is HiEb-TreniOo) whicli are the words of
the Statute ofSS E. 3, for if EUly subject shall
aowmble the people, and conclude n war, and
iiccordingly shnll lead thetn lo inrade the snli-
ject, this is n levying t»f War whhin ^he words
i>f tlie stat'.itc; and then I he stitutcs of tbc25
E, .1, 1 11. 4, 1 of Q. MiiTj, which the earl of
Strnlfird. in his Ananers, desires to be tryed
Iiv, are as wrll repealed, in this ptiint, as the
Si,nii!c of the 18th Hen. 6, he might then,
Tiitliout fcr^y of Trca>mi, have done what he
[•i'j.-3ed «i[h the Irish :irmy; for all the slatutes
of Icvyins of Wnr hythis statute of 11 Etn.
werptakenoiTt oitti-i "-nv.
In Ircl;ind a f nh:e- 1 Si^thert ForcM, roti-
cluJes awar 3:;-.L:;iat tiii: l..ii|^'s people, atlually
iniades thom. hhndslied, burning of hoirsei,
depredations, ensi.c ; two of those, ihnt is,
murder and buniii';; of houses, are Treason ;
and ihere ihe iither Felony by the consiruc-
tion, the puni'hmcnt of Trrasnn and Felony
is turned only into a fine c! 100/. ; from loss
ofiile, lands, and :iU his go?ds, only to loss of
part ofhtt pincds.
The third absurdity, a War is concluded,
three sereril inmads are made upon the sub-
ject: in the fir«t 100/. damage ; in the secoud,
■ '5,000/. daraape ; in the third, 10,000/. damaec,
is done (o the suhjerts ; the penally for the
last inroad is uo niiice than fur the first, only
100/. Tliis statute, by this cunstruciion, tells
nny man, how lo get his liring viitlioiit lung
labour.
Two parts of Ihn lOOf. is piven to the Ling,
n tturd part unto the Informer; Here Is no
damage 10 the sul-jcct, that is robbed nad des-
My Lords, The Statute will free itselfand thi
makers froin tho^ absurdities. The nieanin^
o( tilt SiKtvt* is, Tbat if any captain shall, of
VII head, conclude of peace or war against
the king's enemies, or rebels, or shall, upon hil
n bead, invude ttiens without warmnt from
the king, or lord depu'y of Ireland, that than
he ihall forfeit 100/.
The Offence is not for laying of soldiers upon
the king's people, hut making war ugainsi the
Irish Reb (4s without Warrant; the offence n
it in the matter, but in the manner, fordoing
_ thing lawful but without mission. 1. Thik
will appear by the general scope of the Statute,
all Ihe parts being put ingeihcr. S. By parti-
dar Onuses in the Statute. S. By the Con-
tron of that Kingdom, at the time of the
making of that Statute.
For the Ht, The Prtwnble recites. That in
ne of declination of justice, under pretext of
defending the country and iheniselves, diverse
great men arrogattd to ihemaelrea regnl autho-
rity, under the names of Cap(ainB;"lhai ih^
acquired t« theniselves tbat government, whiti
belonged to the Crown ; for preventing of this,
it is enncted, That no man dwelling within the
Shire-groundt, shall thenceforth nssume, or
take to himself the authority or name of a Cap-
tain, within tlitse Shire- grounds, without let-
ters-patents from the Crown, nor shall, under
colour of his Captainship, make any demand
of the people of any enaction, noras a Captain,
assemble the people nf the Shire-grounds;
nor as a Captain snail lead ihoM people to do
anr nets oflrnsive or invasive, without Wanant
under the Great Seal of England, or of the
Lord Deputy, upon penalty, ihat if be do any
thini! contrary 10 that act, tnnt then the offender
shall lorfeit n hundred pounds.
My Lords, The Rebels had been out ; the
Courts of Justice scarce sate; for defence of
the country divers usurped the place of Can-
tnios, concluded of wur aeainst the Rebels,
and invaded them without Wartnnt : invading
the Rebels without authority, is a crime.
Tliis appears fbrther by particular chores in
the statute, none shall exercise any Captainship
within tlie Shi re-grounds, nor assemble the
men of the Shire-Grounds, lo conclude war, <"
lead them to any invasion.
That that had anticntly been so continued lo
this time, that ia the Irish, and the fir.glisli
pale, tliev witliin the Shire-grounds wcrewithin
the Ensllsh p?.lc ; and ad fiUm et Ugrtn Ang-
liic. The Irish without the pale were enemies
always, either in open act of hostility, or upon
leagucii and hostojies piveo for securing the
peace; and ili<M;foic as here in England we
iindour Marcliis upi')n the front it rs in Scollnnit
and Wales, so were there marches between the
Iribh and English Pale, where the inhabitants
held their lands by this tenure, to defend the
country against the Tiish, as appears in (be close
Roll of the Tower, in the SOfli Edw. 3, mcm-
hrana J5, on the backside, and in an Irish pai^
liament,'beld ihe 4tnd Edw, 3, it is declared.
That the English pale was almost destroyed bj
the Irish enemies, and that there was no way
to prevent the danger, but onlv, that tbe own-
ers reside apun tbeir land* for defence, and lltit
1499J STATETRIALS, 18 CbmlksI. lOiO.—Trwlt^tlieEarti^SM^ord, OSfU}
Absence shouM be a. TarfeiCure. This act of
parliament in a great council here was affirmed,
as appears in the close Roll, tlie iSiid Edw. 3,
meinbroiia 20 dorso.
Afrerwatdi, as appears in tbe Statute 2B
Hen. 6, in Ireland, iliis hostility continued be-
tween ihe Engliih mv'clie^ and tlie Iiisli ene-
' mies, who by reason there nos no ditTereoce
bemeen the English Marches anil (hem in their
apparel, did daily (not being known to the Eng-
lish) destrojr (he English H'i(hin (he pale ;
Therefore it ii enacted, tbtic every English-niaii
sbiill have the hair of his upper lip fordistinccioD
sake. This hostility continued until the lOcfa
Hen. 7, as appeare by the Statute nf 10 II. 7,
and 17(11, su successively downwnrds, till the
making of this very Statute of 1 1 Eliz. as ap-
pears fully in the 9lh chap.
Nay, Inimedialely before, and at tlie tiine of
the making of this Statute, there was doc only
enmity be(ween those of (be Shi re- ground, that
is, the Englisli and Irish pale, but open war.
and Bi:[s of hostility, as appears by history of
DO less autliari[y than that Statute itself; for
in the tirst Chnp'cer of ttiat Statute, is the Ai-
tainiler of Shane Oneale, v/hu had made open
(VBr, was slain in open var; it is there de-
clared, Tluit he had gotlen by furce, all the
Norlii of Ireland, for ISO miles in length,
and about 10(' in breadth ; that he had mns-
tered divers places within the Englisli pale ;
when (he flame of this war by his death, imme-
duitely betbre this Statute, nas spent, yet the
firebrands were not all quenched, for the Re-
bellion continued by John Fitz-Geraid, called
the Wiii(e Knight, and Thomas Gueverford,
tJiis appears by the Statute of (he IStJi queen
Elil- in Ireland, but two yeava after tliii of the
llth queen Eliz. where tliey ure attainted of
High Treason, for levying of war this 1 Itli year,
wherein this Statute was uiade.
So (hat my lords, immediately before, and at
the time of (be making of this Statute, there
being war between those of (he sh ire-grounds,
mentioned in (his' Statute, and the Irish, the
.concluding of war, and acts offensive :iitd in-
vasive there mentioned, can be intended ngainsl
DO othen, but tbe Irish enemies.
Again, The words of (he 8ca(ute are, ' No
' Captain sliall assemble the people of (he
' tbire-grounds,' (o conclude of peai:e or »ari
u to presiune, that those of the shire-grounds
(till conclude of war aealnst themselves. Nor
(with (he StatiKe) ■ Shall carry tiiosc of (be
shire-grounds (o do any acts invasive; by tha
construcLiun wbicli is made on (he other aide,
tbey mu»t be carried to fight against them-
selves.
Lastly, The wards are, That as CapUia,
none shall assume tbe name^ or authority of a
C^tain ; or as a'Captain shall gather the peo-
ple together; or as a Captain lead them ; the
offence is not in the matter, but in (he manner ;
^ if the acts offensive were against the kiog's
good subjects, tbosethat were under command
were punishable, as well ei tbe r^mmandera;
baf in respect the aoldiers knew tbe service to
be eoud in itself, being agaiast the enemirs,
ana that it was not for them to dispute ifae oo-
thority d( theit commanden, the penalty of
lOOl. is laid only upon him, that as Cap-
tain, iball assume this power without <*arraii;,
the people commanded a/e not niUiio ilu*
My Lords, Tha logic whereupon (his Argu-
ment is fmined,stands(bus, because the st*tut«
of (he lltb queen Eliz. inflicts a peaaltjoS
lOQl. and no more, upon any man, thu aa ■
Captain without warrant, and upon Lis own
head, shall conclude of, or make w&r afainU
the king's enemies : Therefore tbe StmtaiP of
the 18th Hen. 6 is repealed, which niakea it
Treason to lay soldier* npon, or to l*tj war
against the kiug's good people.
But, my lords, Observation hath been made
upon n[her words of (hi* Statute, that is, ibai
without Licence of the DepuCT, these tlungi
cannot be done; this iliews that the Deputy
is within none of the UaUKes.
My Lords, This Argument stands upon the
same reason with the former, because he h^h
the ordering of the Anny of Ireland, for the
defence of the paople, and may give wamnt (a
(he officers of (lie army, upon eminent occai-
sions of invasion, to resist or prosecute ihe
enemy, because of the danger that else m^ht
ensue lbrthwi[h, by s(aTiiig fur a womuu frttui
his majesty out of Engund.
My Lords, Tbe statute of tbe 10(h Hen. 7,
c. 17, (oucbed upon for (hi* purpose dear*
the business in bD(h points; for there is de-
clared, That none ought (o make War npoa
the Irish rebels, and enemies, without Warrant
from the Lieutenant, ihe forfeiture \00l. u
here tlie Statute is (he some with this, and
might as well have been cited, for repealiif
the Statute of tbe 18th Ilen. 6, as this of iha
llth queen Eliz. But if this had been insisted
uDon, it would have expounded the other two
clear jigainst him.
Object. — My Lords, it hath been further
said, although the Statute be in fprce, and
there be a Trenton within it, yet the parliament
h>Lth no jurisdiction, tbe treosoiisare committed
in Ireland, therefore not triable here.
Answ. — My Lords, sir John Pnirot,* his pre-
decessor'. Si £dw. was tryed in the King'&-
bench for Treason done in Ireland, wlim lie
wa* deputy ; and Oruche in the 34 qneen Elu.
adjudged here for Treason done ire Ireland.
Object.— But it will be said, llie*e Trials
were after the SUituteof (be 34th Hen. 8, mbidi
enacts, that Treaaoos beyond sea may be tried
" England.
Aniw. — Mj Lords, his predecessor my lord
iirayt was tried, and adjudged here in tbe
King's Bench: that was in Irinity Tenn, in
(be 33n{ Den. a(h, this wai belW the n
of thai Statute.
Object. — To (his again will we say. That it
was for Treason by tbe laws and B(atD(es of
Enghmd ; that this is not for any thing (hat is
* Sm vol. 1, p. 131S. t H>id- P- 430.
IJOl]- STATE TRIA15, IfiCHAULi
Trensin by tlie Uw of England, but an Irish
So that the question is only. Whether your
lordships liet&iii par! iameiit, have cogniiancc of
an ofl'fiire, made Trtiiwn by an Irish statule,
in the ordinary way ofjudicature,wiUiom bill?
for 30 is the prPSiT.i <[Uestic>]t.
For tlic clearing of ihi?, T sh»Il propouad two
tbiii';i. to your iord^h'ps ccinsid' ration, Who-
thoi- iKc rule for eTponmiii;g thi; Irish Statute
□nil L'ustoms, he »nc anU the ^ninc in F.iisland
a> in Ireland I Thnt being adiiiuteil. Whether
the parliament in En;;hnd have cognizance or
juriidiciion of things idcre done, in respect of
iho pince, becauie llieking'swrit runs not there?
I' or the first, in respect of ihe place, the par-
linment here linth cognizance there. And se-
condly. If the rules for expounding the Irish
ttatuCes and cuiloms. be the same here as there,
this exception (as I humbly conceive) must fall
In England there is the Common Ijib', the
Statutes, I he Acts of Parliament, and Customs,
peculiar lo certain places, dilftring from the
(OTnmon law; If any quGstiou arise concerning
eitlier a custom or an net of parliament, the
common law of England, the firat, the primi-
tive arid the general Ian, that is tbe rule and
expositor of them, and of their several extents ;
it IS so here, it is so in Ireland, the common Inn
of England, is the common law of Ireland like-
wise; the same here and there in all th« parts
of it.
It was introduced inlc Ireland by king John,
mid afterwards hy kmg Henry 3, by act of pnr-
linment held in England, as appears by llie Pa-
tent Rolls of the 30th Hen. 3, the first Mem-
bmna, the words are, ' Quia pro commani uti-
* litate EerrsE Hibemiie rt onitate terrarum re-
* gis, rex rult, et <ie communi concilio r^is jiro-
' visum est, quod omnes leges et consuetudines
' quse in regno Anglji tenentur, in Ilihernia te-
' neantur, et eadeni terra cisdem legibus subja-
' ceat, et per easdem regatur, sicut dominus
* Johannes rex cum ultimb essct in Ilibernia
* statuit et fieri mandavit, quia, &c. Rei vult
* quid omnia brevin de communi jure qus cur-
' runt in Anglia, similiter currant in Ilibernia,
' sub novo sigillo regis mandatum est archiepii-
' copis, S:c. <juod pro pace et tranquilitate ejus-
' dem tetrs, per easdem leges eos r^i et deduci
' permittant, et eas in omnibus «equanttu' in
* cujus, &c. Teste rege npud WooJslock, de-
Here is an union of both kingdoms, and that
hy act of parhanienl, and the same laws to be
used here as there, tn tmnilms.
My Lords, That nothing might be left here
for an exception, that is. That in Treasons, Fe-
lonies, and other capital offences concerning
life, the Irish laws are not (he samu as here,
therefore it is enacted hj ■ parliament held in
England, in the 14th Edw. 9, (it is not in print
neither, but in the Pariiament Book^ Thnt tbe
Laws ciinceming hfe and member shall he the
■ame in Ireland, as in England.
And that ito exception might yet remaiB ; its
1 1. I6i0.—fi>r High TTtaioa.
[1502
a parliLiment held in England, the 5th Edw. 3,
it IS en:icted, ■ (jnud una et eadem'lex fiat (aiu
' Hiliernicis quum AngliHs.' This act i^ t:ii-
rolled in thfl Patent Ilulls of the 5lh Ed»...1,
Par!, niembr. 35. The Irish t!,erL-f<,re receiv-
ing their I.ans I'rom henre, they send theirStu-
dents at Law co the Inns of Court in England,
whfre they rweive their degree, and of thcin,
and nf the ciimmnn lawyers of thi^t kingdom,
are tlie Judji") made.
Tiipi Petitions have -been many from Ireland,
to send from hence some judges, more learned
in thi> laws, than those they had there. It hatli
been frequent in caseiof difiiculry there, to send
sDuielimes to ihi' pailiament, sometimes to the
king, by advice from the Judges here, lo send
them resolutions nf their doubts. Amongst
many, I'll cite your lordtliips only one, because
it ism a case, of Treason upon on Irish statute,
and therefore full to ibis point.
By a Statute there made the 5ih Ed. 4, there
is a provision made for such as upon sugeestioni
are committed to prison for Trcasou, that lb*
party committed, if he can procure Si compur-
gators, sliall be bailed and let out of prison.
Two citizens of Dublin were hy a grand Jury
presented to have committed Treason, ttiey de-
sired benefit of tbis statute, I'lat they might be
let out of prison, upon tender of their compute
gators: the wordsof theStatoteof iheSthEd.
4, in Ireland, being obscure, che Judges there
being not satisfied what to <lo, sent tbe Cas^
over to the queen, desired the opinion of ibe.
Judges here, which was dons accordingly. Ths
Judges here sent over their opinion, wliicli I
hare out of the Book of Justice Anderson, one
of the Judges consulted withal. The' Judge*
delivered iheir opinion unoD an Irish Statute,
in case of Treason.
If It be objected, Tliat in thisCase, the Judges
here did not judge upon the party; their opi-
nions v(ere only ad infonaandtim conicieitliam,
of the Judges in Ireland, that tlie Judgment be-
longed to tlie Judges there. My lords, (with
submission) this and the other Authorities,
prove, that for which they were cited, that is,
that no absurdity, no failure of justice would
ensue, if this great judicatory should judge of
Treason, so made by an Irish statute.
The Common Law rules of jud^ng upon au
Irish Statuie ; the Pleas of the Crown for things
of life and death, are the same here and there,
this is all that yet hath been offered.
For the second point, lliat England hath do
power ofjudicature, for things done in Ireland.
My lords, the constant practice of all sgei
pro\'e3 the contrary. Writs of Error in Pleai
of the Crown, as w^ as in civil causes, have iu
all king's reign* been brought here, even in the
inferior courts of Westminster>hall upon Judg-
ment given ill [he courts of Ireland, the prao-
tice is so frequent, and so well known, as that
I shall cite none of them to your lordships, no
precedent will, I believe, be produced to your
fordsnips, that ever the case was remanded bark
again iuto Ireland, because tbe questioa arogo
upon an Irish Siatuta,or Custom.
liOi] STATETRIALS, IOCh^klmI. \6iO.-^TfUdtflheE»rlt/StTBfford. [1504
Otyect.— But it will be »id, Ihat Wriii of
Error, are onl} upon failuro ofjuMJcein Ire-
land, und that suits ctuioot oiigiuaUy be oom-
meiiced lierefor tliingiduneinlielaiid, became
the king's Writ runs not in Ireland.
Answ.— Tliii mi^hi be a good Plea in ilie
King's Ikiicit, and inrerior courts at Westniu-
ster-hall ; tlie quGStion is, Wlielber it be so id
Parliament f ihekiiig'i Writ runs not within the
county paUtbe of Chester aod Dnrh^m, not
nithin the Five Ports ; ncitlier did it iu Wales,
before tlie Union ofHenr^ tlie Slh's time, after
the lawe of England nere brouglit into Walei,
in king Edward the Isi'i time, suit* were not
- originally commenced al WESlminiter-hall for
tilings done iu tbem; yet this never excluded
the PariiameDt suits ; for life, lands, and ^oodt
nithiii the&e jurisdicliona, s,re determinable in
parliameut, as well as in any other part* of the
Ireland, as appears by the statute of the 30th
lUii. 3, before mentioued, is uiiiied to the
crown 01' England. By the Statute of the SBtb
Iten. 6, in Irelsiild, it is declared in these norde,
'lliat Ireland is the proper doiikiuion of Eng-
land, and united to tb« crown of Eiigliud,
wliicb crown of England is of ittelF, oud hy it-
self, wholly and entirely endowed nilhall power
and authority sufficient to yield to ihc aubjecU
of lite same full aud plenary remedy, in all de-
bates and suits wbatiuever.
By tlM Statute of the 33 Hes. 8ih, ch. 1,
when the kings of En|{land first assuuied the
title ofKing of Ireland, it is there fikacted.
That Irelaod still is to be held as a ciown an-
nexed and united tu the Crown of England.
So that by the lamc reason, from this that
the king's writs run not iu Ireland, it might as
well be held, that ibe Parliatnent catinat origi-
Bolly liotd plea of ibiugs done within thocouai^-
palutine of Chester and Durham, nor wiihui
the Gre ports and Wales ; Ireland is a part of
the realm of England, ds appears by those sta-
tutes, on well as any of tliem.
This ii made good hy constant practice iu all
the I'iirliunent KoUs, from the tint to the last;
there ate Recei*er» and Tryect of Petitione ap-
]>oiii(ed for Ireland ; for the Irish to coiae m>
fai' witb (heir Petition* forjustice,aQd thel'ar-
liainent nut to bava cogniiance, when from time
to timi' theji luid i« the beginning of the pailiik-
tnciit, appointed Iteceivcrs andTryers of them,
is a tiling not tu be presuoied.
An Appeal in Ireland, brought by William
lord Veaey, aguiuat J uhn Fiti-Thoaiat, fur trea-
ioiiithU Wurilii ibera ijMken, before any judg-
menlgiven in case there, was reowved iutO' tlie
FaTLiawent in England, aud there the de-
fitnduoi acquitted, as appcan in ibe PaHia-
iMut PI«ua of the sad Eilw. i.
The Sui s ^r lands, o£ce«, and gooiit origi-
nally begun here arc many, and it question grew
upon auUar in fact, a Jury usually urder^ to
tcj it, and (he Verdict rbturncd into i)i« Parlia-
ment; as in the Caw uf one Ballybea in the
Pacliaineut of the S6th Edw. 1. If a doubt
aros« upon » mait«r trjaUc by KkorI, ■ writ
went to the oftcert, hi wbuse custody the Re-
cord remained, to certify llie reconj, as was in
the Case of Hobett Baguu the same parlianieiit
of the U^thEd. 1, where tbo Writ went to the
T^eB^ilL^e^, aiwl bitrons uf llie Excliequi-r.
Sometimes tliey gave Judgment here in Par-
liament, and commanded the Judges there in Ire-
land to do eiecuiioii, as iu the great Case uf
Purtition, between. (lie Copartners of the Earl
Marshal in the Pailiameut of ilie 33d Ed. 1,
where the Writ was awarded tu tlie TieuiurLC
uf Ireland.
My Lrdi, The Laws of IreUnd were Intio-
duced by the Parliament of Eui;land, as ap-
pears by three actt of the parliuneut bcion
cited. It is of liigher jurisdiction dare /':£(i, than
to jud^e by them. 1'lie jjarlianieut^i of En^hutd
do bind in Inland, if Inland be particulaili
mentiiiued, as is rciulved in tlie Book CaseM
the 1st Hen. 7. Cook's 7th Uepurt Calnd's
Case; nud by the Judges iu ttie Triaity-temi,
in the 33d quccu EIb. 1'Ik statute of the
6ih Ed. the 4th, ch. 1, iu Ireland, recites, That
it was doubted amongst Judges, wbeiWr all
■he Eiigli^ statutes, though not nnmlng Iia.
land, BtTG in liuce there f if iinjued, no doubt.
From kinji Henry the 3d, his time douawards,
to the 8Ui quceu Eliz., by which Statuic it is
made Felonv to carry slieep fruin Ireland be-
yond $eus, lo almost all those king's reigns,
there be statutes made concerning Ireland.
The exercising of tlie le))ijUtiTe power there,
over their hvcs and estates, is higher ihnii of
the judicial in question: Until the a9th Edw.
3, erroneous jui%ueut* given in Ireland, weie
dctcrntinable uo where but in England : uo,
not in the purliaiacut of Ireland, as it ap-
pears iu' tlie close K4>Us in the Tuner, lo
the 2gth Edw. 3, memb. 13, power to e\aiiUDe
and let'crsc eiToueous Judgments in the parlia-
uflrelaiid is gnnied from hence. Wiii
[■ Errt
I ibe parliaoient here upon ctto-
iieons judgmeuts, after that time, giieu in ilir
Cliauienis of IreLuid, as *ppes[« ui the P.ar-
oent liotb, of Ibe Bth lien. G, no. 70, in
the Case nf the Prior of Leatbau. It is true,
the Case is not deiercoinetl there, Ibi it is tin-
lost thing tliat caiat into tlie parlianient, aoit
could uot be delcrmiBeil fur wantof time, bat
cfpliwotullu taken to the jurisdiction.
The 8
I .I»l»i
have been caiiHiiued in the purliaiiiitutsof Eug-
Innd, as appears by the close Rolls in the
Tuwer, in t)ic lid Ed»'. 3, mei|ib. SO, A<xx> :
whrre the paiUaioent iu Ireland, itw the pn.--
sercatiou of tlic cunnlry fitun Irnh, wLu bad
almost destroyed it, made an act. That ull tlic
bnd uwaera, that were English, sliould reaid.-
upon their londt, or else they vera to be for-
leiied. Ibis was here conGnnetl.
In the Parliament of the 4th lira. 5, cfa.
6, acts of purliaiuent iu Ireland are continued,
and ^otse prinl^es of the peers in tJie parlw-
mciitB there are regulated.
Power to repeal Icisli sl^itulei, power lA con-
firm ibftn, cannot l-e liy rbe [larliiinenl here,
luur pai iiaaMuls ;
ISOSJ STATE TRIALS, IB Cha»le» I 1(140.— /or High TVwmot.
[150S
niitesB it be nid, that tbe {wlwmepC mty do
It knows Dot nliat.
Guerusey andjeraey nre under the khii'iBub-
jection, but are i>oc parcels of th« crown of
fngland, but of (ha ducbj of NofmaDdy, they
are nut governed by ihe lans of Eiigluod, h9
Ireland is, nud yet parbainenis in Engkiid
have usually helJ plea nfand determined all
Caused cuiicerning Lands or Gauds. In the
Pa^liilD.«[)^ in the 33 Ed". 1, Ihere be ' Pla-
' cita de insula Jeriey.' And so in llie Partia-
theiit, 14 Edw. a, and sa for Normandy aud
Ca^coigne, and ulnuys »t long ha any part of
France iras in lubjectiati to tlie crowu of Eng-
land, there were af the beuiiiniiiii of the patlia-
loents Receivera and Tryera of Petitions, for
thi>se part«, ap[juiiited. — I believe your lord^iipa
nill hate no case shewed of an; Plea, to the
jurisdiction of the parliaments ofEi^and, in
anv things done in any [laits wheresoever in
sumection to the crown of England.
The last thing I shnll oSer to your lordibips,
is, the Case of 19 Elix. in my lord Dyer,
306, and judge Crompton's Book, of tbe juris-
diction of Courts, fyl, 33, Tbe ojiinion of both
these Books is, That an IriUi peer is not irya-
|ile here, it is true, a Scotch or French noble-
mao a tryable here, as a common person ; tbe
law takes notice of their nobility, because
those countries are not governed hy the laws of
Snglaod ; but Ireland being governed by the
aame lars, the peers there are tryable accord-
ing to the law of England only, per parts. — By
tba same reason, the earl ofStraSijrd, not bein^
fi peer of Ireland, is aot tryabje by the peers of
Xrelaod; so that if he be not tnable here, be is
tryable no where. — My lords, In case there be
a Treason and a Traitor within the statute, and
that he be not tryable here for it, in the ordi-
nary way of judicature, if thatjurlsdiction fail,
this by way of Bill dotb not ; Attainders of
Treason in parliament, are as legal, as usual by
.act of parliiunent, as hy judgment.
I have now doqe with tlie Statutes 2S Edw.
S,and 18 IIpn.6. My lord of Strafford hath
oSended against both the kingdoms, and is
guilty of High Treason by the laws of both.
Khr Lords, In the Fiftli place, I am i;ome to
theTreusous at the Comiunn-Law, the enden-
vomiog to subvert the fundamental Laws and
Government nf the kingdom, and to introduce
an Arbitrary and Tyrannical govcnimeut. In
this I iball not at all lahonr to prove, That the
eodeavouring by words, counsels and actions,
to subvert the laws, is Treason at the conunan-
Ian, if there be any common-law Treason at all
left; nothing isireHson,)fibis be not, to make a
.kiogdora no kingdim ; take the polity and go-
vernment away, England's but a piece of earth,
nhereia so many men have their commorancy
and abode, without ranks or distinction of men,
without property in any thing further than pos-
■esslon i no law to punish the murthering, or
robbing one another.
That of 33 Hen. 8, of introducing the Impe-
rial Law, sticks not with your lordships; it
waa ID case of aa App«al to Rome ; ibcie Ap-
VUU HI,
peals in cases of Marriages, and other' cause*
counted eccleainstical, had been frequent, had
in most kiug's reigns been tolerated ; some ia
times of Popery put a conscience upon tliem;
tbe Statutes bad limited the penalty to a P'le-
inunireonly, neither was that a total subversion,
only an appeal from the ecclesiastical court
here in a single cause, to the court of Home ;
itnd if treaiou or not, that case proves not. a
ti'eaioii Diiiy be punished as a ftluiiy ; a felony
as a tre-pass, if his majesty so plense; the
greater includes the less in the case of fio'ifu-
ntre ; in t)ie Irish Reports, that which is cbera
declared to be treason, >vas procecdud upult
only as a Framunire. ■
The thing most considerable in this is,
Whether tbe Trensons at cammu.i-law, arc ta-
ken a'vay by the statute of 2j Ed. 3, which ia
to speali against both the direct words and
scope of cliuC Statute. In it there is ihia
Clause, 'Tbat because many other like Cases
' of Treason might fall out, uhich are not titers
* declared ; tlierefore it is enacted, Tbat if anr
' Bucli case come before the Judges, they (liall
' nut proceed to judgment, till tbe CaseJ>e de-
' clarcd in parUament, whether itougbt to ho
' adjudged Treason or not.' These wordt, aitd
the whole scope of that statntc, shews, that it
was not the meaning to tuke away any Trea<
sons tbat were so before, but only to rMulato
the jurisdiction and manner uf trial. Tliosa
that »ere single andcertain act*, as conspiring
the king's death, levyiue war, counterfeiting
the mnney, or great seal, killing a judge; these
are left to the ordinary courts of justice; Th^
othen not depending upon single Acts, but
upon constructinns and necessary inferences,
they thought it not fit to give the inferior courts
so great a latitude here, as too dangerous to
the subject, those they reairained to the parlio- '
meat. — This Statute was the great i^ecuriiy of
the Subjects, made with such wisdom, as all
the succeeding ages l»ve approved it ; it hatli
ot^u passed tlirougb the furnace, but like gold,
hath left little or nothing.
The Statute of 1 U. 4, c. 10, is in these
words, ■ Wliereas in the parliament held the
' 31st year of R. '2, divers pains of Treason
' were ordiiined, insomuch that no man did
' know bow to behave himself, to do, say, or
' speak ; It is accorded that in no lime IQ
' come, any Treason be adjudged otherwise,
' than it ivas ordaiued by the statute of eath
' Edw. 3.' It baih been said. To wluit end ii
this Statute made, if it takes nut away the
common-law Treasons reiuaioing afier the sta-
tute of 25 Ed. 3. ?
There be two main things which thia statiilo
doth ; 1. It takes away for the future all tbe
Treasons, made by any statute siiice 3S Kd. 3,
to 1 H. 4, even to that time; for in respect,
that by another act in that parliament, (he sta-
tute of 31 R. I!, was repealed, it will not be de-
nied, but that this statute repeals more treap
suJis than these of 21 It. 2. It repeals all sta<
tute-treoEons but those in S5 Edw. 3. — 8. It
not onlj- takes awaj ijie Statutc>Tt(asolw, but
ia
1007] StATi'nUia.KCBJ.MiMil. iMo.— Trial t^Mm Mart ^au^ord, [IM
lihevrise th* declared TrenBons in pmliameDt,
kfUr 35 Edw. 3, ag CO the tuture, slier dedans
tion ill ptuliamcnt, lh« interior cunm i»if[ht
judge ctiese Treasoni ; for tlve rtEdantioH of a
treasoa in pnrtiMneiH nftrr it wai made, was
lent to the ioth-ioT cumts, thai Miet janliet
Uie like case tiell oM, ttiej bu^^ proMeft
tJiercH], ibe iubj«i'l fur the toture wta srcuicd
■pinjt ibcM ; lo ttiat tbii Sntute was of great
But b; ttM Tery ironh of it, I ghall refer all
TreaiDtM to the protnion of Si Ed. S, it karet
that entire, and upun ibe oM bottom. The
Statute of 1 Mar. c. 1, mkh, That no affimcM
made Trrii»oii b; anj hlI a( pariiameBt, shaK
thenceforth be taken or adjudged ta betteaMo,
bnt only aach as be declarad end erprtland to
be treawa by the uatuleof 35 Edv. 3, ■ Can-
■-ccrning Treason, or the Dectaration of Tr«a-
»»on,' and no oiliert: Aad farther proviHes,
*TbB^ no paJM of death, penalties, or forfet-
'ture in any wiae shall ensue, for committing
* any Treaton, other than such at be in the
*' Ratute of S3 Edw. 3, ordained ai>d provided,
* any act of parliament, or any decliimlion, or
* matter ts the couttarr, in any wisa notwith-
* itanding.*
By the first of this Sutnte, oiriy otkaert
none treason by act of pariiament, are tuken
•way, the common-luif -treasons are no wja
touched, the words ' and no others,' irfer stilt
to oSencei made Treason by act of parliament;
they restrain not to the treisans only, pariico-
larly mentioned in the statnle in 80 Edw. 3,
kut leave that Statute eaiire to the Coramoi)-
I^w-Treasoo, as appean by the words itame-
riialely foregoin];.
By the Secoad Part, for the pain* and Ibrfin-
and Punishment, yet all is inferred to the Pi
lesion and Ordiitance of as Edw. 3, any act
iparliament, orotbet decleraiioB, or thing, ilot-
wifhitandiiig.
It saith not, other than such Ptnalties
Trensoiis, as are expressed and declared in the
Statute of 95 Edw. 3, that might perlmpe have
restrained it lo those (hnt are particularly men-
tioned, no, it refers all Treasons to the general
•rdinatinn and prerision' of that ttatnte,
Vrherein tl*e Conimon-Law-Tieason) ate ea-
pre»ly kept on Toot.
If it be asked. What good lhi<i Statnte dntb,
If it take not away rbe Cimmion-Law-TrtB-
Mns i — 1. It takes away all the Treasons made
fcy aet of parliament, not only siuce 1 Hen. 4,
which were ninny, but nil before 1 Hen. 4,
even until S5 E. 3, by tTpms words, t. By
express words, it takes away ntl declared TVea-
tons, if uny such had been in parlixment ;
tbose fir tl)e future ore likcwiae taken away ;
to timt whereas it might hare been doubted,
whether tite statute of III. 4, took away any
Treasons, but those of the S2i«i and flSrd years
of It. S. This clears it, both for Treasons
■lade by pntliomcnt, or declared -in pariia-
■Mat, even to the timaof nakiog theuMute.
Tkis is of great oae, «rmat secaHty to tb«'
Subject ; so that, as lo whitahall be ricasoa,-
and what not, the Statute of 9& M. S. renoias
entire, and so by ctMseqatoce the Treasons at
Only, ny lords, it may be dotibled, wheths
the naAaer of the partimueiMarT proceeAncs,
be not altered by the Sbttate of 1 H. 4, c. IT,
and nore fully in the ParliaiBent'Rotl, a. 144^
that is, whether since thai staline ilie p>H>a-
menCary power af Deckmrion of I'reasoos,
'berdly ti»e inftrior cmirta receive jarisdtctian,
e nut taken away and restrained oaly to Bifl,
thM so it nigtit operate no farther, than to
that particular costained in the BiH,thai sa the
Parliansentary Deriarations for after -fimes,
shnold be kept wtthtti thepartiaiBant itsrif, nrf
be eiteaded no hrtber : Since I H. 4, wc bar*
net fMod any sorb deciaratiom made, bnt d
Attanders of Treasoa have been bv BiJI ?
If this be so, yei the CommMi-Law Tmsoat
■bll remaining, there is nne and the sasna
grotmd of reason and eqaity unee 1 H. 4, for
pBwnig a KU of Treason, as was before, for de-
d*tiaf of it wicfaoat bill. — Herein the Ifgiita
tire power is not used against my lord of Snaf-
fiHdinthe BiU,it isoblythejvnsdictioaof tfaa
parliament.
Bvr, my lords, because that either throagh
mv mistaking of the one (inmnda and reaaou
of the Commona, or my not pressing dten with
apt argSDienls, and pivndents of fetinec
times, or that pcrcbiHice your liwthhipi, firaoi
tome other reasons and anthorides, more iwi^
ing with your lonlshi[M indpaents, than ihesa
ftvm them, may poasibty be of a contrary o
dnhiMis opinion, concertting these Tieasots,
either npon the statutes of 85 £. S, and 18 t£
0, or at the common-law.
My lords. If all theM five shMhl U1, tlxt
have thereftire given me tvnfaer in commaBj^
to declare do your lordships some of their Scb-
soDs, why cbey concaire that in tins case, vbc
mere legislative power may be ei«t:ised.
Their Reasons ait: taken from itiese tfawe
irounds ; 1. Ftnm the Nature aotl QnaKtjr of
tlieOSence. 2. Protn the Prane and Caooia-
tution of the Parliament, wbereia this l>w it
made. 3. FnunPiacticea and Usages of former
The horridons oftheOSeBce, i* esa)«avaar-
in; the overthrowing the laws and present f/t-
vemment, bath been (nUy opened to jour hxi-
thipi berctofbre.
The Parliament is the RaprwcntntioB oflUt
whole kingdom; wbeiein the King as bead,
your Lordships as the nwst neble, and the
Commons the other memben, are knit toge-
ther into one body politic; this dissolres lbs
arteries and lignoiems tbnt hnld the bodv to>
gether, the Lnws ; he that takeatiwayibenws,
takes not awny ihe adegiance of one snljcct
alooe, bnt of (he wbofe kingdnm.
It ivns mude Treason by the stattite of JS
Ehr. for b«r time, to affirm, that the Lews of
the reabn do not bind tlie deacoit of dn
crown; DO law, no dnmt «t aH.
.Google
IM»} STATE TltUU, liCuiu* L i^tO.—far lli^ ^voKn. [lU*
No Uvt, H paerage ; m ranks or itff^ea
of KM) ( the (UBC condition to bU.
ktll a JudM upon Cbe beMtii
lluf )uUa amt Judtcem, . __ , _...
bdiTowed Aprlles, md gare bond to tcMi
•gaia Ap«lln tbe paidin-, wni hiw b»«e, ahi
iie4iMl oM uff his rigbl buid; bii bond wi
brfikea ; Apdlei iras sent, butnottbepatnte
Tbere are 1« men, bui na iurt ; thtre u nov<
a Judge oMonpt iJiboi.
h » FeloRT to einbenle «nj ane or the Ji
dioial Haoofd) of the kingdoni ; thi) at obc
•woefw them aU tmuf, and Iran alL
e King's
T >oi3d
JbCfe U • OMuloTfaituig of tbe law ; *>^ caa
«aU neitlier ihe cimaterteii, oot inie oaio, oar
Own.
It ii TreuoA tn ooniK^ait the Grrat-Scal
for a> sera of laud ; no propertj heroby ii left
M any load si all ; nolbuig Trttaoo aow,
citbar agaiaM king «r kmgdora ; no k* to po-
Mjr J-onk, If ibe i]iiation ware aikad at
Wdtaiuiler-hall, Whether tM*
Dunisliable in Star ChMober or
Beuch, by fine, or imprtraDineatf ifaey
■aj it went hi^btr: If wbcclMr Feloay^ tbef
woald'saj, tfaat tafbraaoAeaaaonljaguBattbc
lih, or eoods of wotae oat or few penona i h
woold, 1 balim«, be-aanerad bj Ac Jndgaa, at
it wM by the Ciiiaf JuEtiw Tbwmng in tl IL
S,lt)at thaa^ be coiAi not judge tb* OMeTna-
•ou <lMre betbro Ino^ jat if ha »ai« a paar ia
parliaucot be would m ndi jdge it.— H; Lord*,
(fit be too big lot tbate Coarta, wc hope it ia
in tbe right way h««.
i. 1m MOMid cowtideiatiuM ii fioM the
Frame and CoOflitittiga of the PaihaRMot; the
ParlianiMit is the great body politic, it coamie.
benrii all, from tin kiog to the b^^; If to,
mj lonti, as the vBtoMl, «o ihia body, it bath
soe'er over iiaetf, bikI every one of the membm,
Mr tb* pMMrratiun of the whole; It'iboth the
pfajaidaa and the patient J If tliebody bedia-
UMperad, it kath pomr 10 open a tcw, to let
out*he cDmq>t blood fiir ouriag itself; if one
■wthor be poiaoned or gangicned, it bath
power to cut it off for tbe pceMnration of the
Bub niy lord^ it bath often been ineelcated,
that Law makers should imitate tbe Supreme
X^w-giver, wbo contnoDly warns befiue he
■trikea. llie law was promulged before tbe
judgment of death for gatlieriog tbe sticks. No
law, no traiugressioB.
My lords, To this rule of lew is* Trustralegia
' RiniliumiBTacat, qui iti legem tDmmitbl,' from
the Let lalioniM ; he that would net have bad
otttera to haH a law. Why thould he ha*e any
himself? Wby thould oat that be done lo bim,
that himself would baTadoae (ootbcraP
It is true, we give law tu Hnret and Daors,
because they be beasts of cbase j It was never
aocoaated either entelty or foul pUy, to kauck
toma atid welvet oa tbe Uwd, as tbey caa be
.ibead, because these be beaati ef prej. Tbe
maitnmt wU Uapa Sufoimu.tm Mber iidr-
mio, (or preearTBlioa of the warren. Furlbe^
my lerda, most daugaraus diaraset, if not idhea
in tiNM;, tbey kill; trront, iii great thin^ as war
aad marriage, tliey allow no time for repenW
mice ; it would have beea tuo late to make •
law, when thert! liod been lio law.
My lurda, for further Answer to thit Obj«e>
tion, be hntli offended a^mst ■ law, a Law wKb>
in tlie Bndeaiouriojt to aubt^rt lite l«ws and po-
lity of the stale wliereia he lired, which bad lo
long, and with suoh fatibfoliiesa pnUactod hii
Bgaiuit Che dictates of ilie dullest cunscieaci^
a^nst tile light id' nature, they not hHing •
law, were a law lo tlwmselves. Beaide* tlua,
ha knew a law willioul, that the PvUameu, i«
caBea of this nBiu>e« had pUettaUn vU* tt a*>
cii. Nay, be oell knew, itec he oOendad cbt
pramulged aad ordinary mles of Inw. Crimea
against law have been proved, have been ooi>-
fcssed, ao that tbe queAton ia nut de cuifa, lei
da p«MB, Wbat degree ef punisfament tboae
feulude*er*eP Wemustdiier thimUm inopt
aioo) TImt'tOPeloiuea cannot make aTreaeon,
if it be meant of aqnality in tbe use of tbe lifia-
lative power; for be tliat deaerres death Itr
more pwafiil, and mora ignomiuioua Jer all t*>
getber.
Every Felony is punishBd with loM of lilk
landfl, MmI goods ; a Felesy may ha aggimated
with tbaee circomstantxa, •* tkit the part iamett
•idi good renon may add to ibe circumstaaoaa
ef pwiidunent, as wa* ^me il> chO'Caae of Job*
Hall,' in ^a parliameiu of ilw t U. 4, vtbo, ftr
a barbasous murder, commJUed upoa tbe duhe
of Gloucester, BtiAing him b^went two ftiuher
hedi at Calai^ wae et^udged to be baiiged,
drawn, and ^imitered.
Batteries by latv are ouly puniahable by fina,
•od tingle danugea to tbe party wounded. In
the Parliament held in 1 U. 4, cap- 6, one S«-
vage committed a battery up6n oae Ckedder,
aernat to lir John Brooke, a knight of the paf-
hameol for Someraciahire. It is tlieie eaacte^
(hat he shall pay doable damagae, aod staml
ooniiated, if be nBider not himself by such a
tiiM. Tbemaimar of )imxedtD|p quackeoed,
aad tbe penal^ doubled ; tbe oifcamslaiieea
were 9onBidered, it oeoGcmal tbe comnoa-
weaitb, it was a battery with bfeaoh ai privilate
of parliament.
Thismadeaperpctdalact: bo warning to tke
first offender; aod in the Kinp;'s Deucb, aa af
peiua by the Book Caseof 0 H. 4, the GrKlenff
double damages vtere recovered.
Hy lonk, ia this of the Bill, tlie offenee ia,
high and leneral, against tbe kiug aitd the coa-
mafln*e«]ih, aiainiit all, Biid the best of all. If
every Felony be loss of hfe, laada, and goods ;
W'hut is misuser of the legislative power, by ad-
dition of ignominy, in llie deaih and diepoaal of
Ilie land 1 tn the croxn, the public p^itiuoony
of tbe kingdom f But it was hoped, tba yoer
„.., ,GooqIc
1 51 1 ] STATE TRIALS, 1 8 Chables I. 1 040.— TVw/ ifiJieEa^i^ Stngord,
Inrdshipe had no nior« d
Ciuui jour worthjr
[ISU
:itlin the artof kiUinK
, ■ncnlore. M* lords,
Uiis AppenI from jooiseJves to juur uimtors
we do admit oF, although we do not admit of
that from vourtordBhipi to tLe pe«n of Ireland.
He hatn appealed to tliem : yaat lordaliipa
will be plenaed lo hear, what Judgment thej
have alreadj pven in the cas?, tliat is, the le-
TeralAtlaindenofTreaioiiinpnrlianient; arter
the Slaiaie ot'SS £. S, tijr Treas'ins not mea-
tioned, nor within thai Suitute, and those upon
tho first iiHrDden without wnrnin; given. — Bv
the Statute of 95 E. S, it is Treason to lev'v
iltlieLiii^; Uomines nnd WeMi
kflemards in
ntbe l>tR. 3, n.S8,
99, adjudged rraiion Tor aunYndering
Tend castles in France, onlj out of f»r, »itnout
'*ny cuQipliaiice with the enemy; this not with-
in the staiiite of 25 E. 3.
■ My Lords, in the 3rd of Rich. 9, John Impe-
riill thnt came into England upon Letters of
Safe Conduct, ns an agent for theatate nf Ge-
nod, sittinj; in tht cteninf( before his door, in
■Bread -street, (as the words of the Kecordi are)
•Paulo ante igniiegiuiii ;' John XirLby, and
Knottier ciliieii, comiiij; that itny, auually Kirk-
by trod upon hit b.e, it being tvi ilight, this grew
to a (lunrrel, and the ambasudor was slAin ;
KitLby wns indicted o( liigh Treason, the In-
dictment linds all this, und that it was only done
■»r d.JtHdtnrlo, and wilhciul malice.
The Jud):es, it betog ont of the Statute of 35
E. 3, O>ul0 not proceed ; the Parliament de-
clared it TreHSon, and Judement altervtardi of
Hinli Treuson : there vt tioihfnjt cin bring tbii
witliin the statute of ^S £. 3, but it concerns
the honour of the nation, i hat the public faii^i
•hould be strictly kept : It might endanger the
traffic of the kit^oin; they made nut a law
*tst, they inaile tiat first man an einmple; this
t* in the Parliament Holl 9 U. 'i, n. 18, and Hi-
lary Term. 3 R. 9, tot. 31, in the King's- Bench,
wliere Judf^ttient it given against him.
In IkH. 3, TrtMliuii, and sume others, at-
laint«l iif Treason for delirering opinions in the
■uhv^tion of tite hiw, and some othera for pint-
tint; the like. My lordi, the Case hatb upon
on'iihei' occasion been opened tp ynur lordships;
.only this is obsertable, that in the parliaineni
of the lu of Hen. 4. wlierc all Treasons are
again reduced lo the Statute of 35 E. 5, thete
Attainders weire hy a particular act confirmed
and luodu kooiI, tint the menmry thereof might
be transiuitted to sncccedioR aaes, ihev ?tfind
good unto this day ; the orteiice ■, titers ns here,
were the endenTouring the snbiersion of the
Wy I.ords, after the 1 H. 4, sir John Morti-
nur being committed Fa the Tower, npon sus-
picion of 'Ireason, brake prison, and made his
•icape; thia no <n.iy within any sintulc, or any
(bmier judement nt cnnimon-lnw fir this, that
is, (iir breakini; the prison only, and no ottier
cauic; in the parliament h<'ld tlie 3 lien. «, he
was attainted nf lli»li-Treason by Bill.*
. •%tML I. p. g(JT.
My lt>rd*, Poiwniog ia only moider, yet oat
Richard Cuoke bating put poiion into a pot of
pottagein the kite hen tjlibe bishop irfltocheaier,
whereof two persons died, be is attainted ti[
Treason, and it «;ii enacted, that he should he
boiled to death by tl>e sUtute of 99 H. 8, c. 9.
By the Statute of'^ihe 95 H. 8, Eliiabetli ftutoa
the Holy Maid of Kent, for prctcndiiig Rerela-
tiant from God, That God was highly displeas-
ed nitli the king, for bdug divtniced from tbe
lady Catharine, and that in case he persisted in
the separation, nnd should marry Boot her, that
he would DOt cootinue kii^ not above oo*
month after, because this tended to the deptiT-
ing of the lawful suct^ession to the a<own, ib»
is attainted ofTrt^n.
My lords, all these Attainders, for ought I
know, are in force at thii day. TIm atatuta
of 1 Hen. 4, and 1 queen Mary, although ib^
were willing to make (be Statute of 85 E. 9,
the rula lo the Inferior CiMrta, yet ihej leA tbt
Altaiiideti in Pariiament, precedent ia thcn-
selvei, anioncht, wherein the legtslatire power
had beeu eiercited. There is notfaioK is tbeia
whence it can he gathered, hut that they ia-
tended to leave it as tree for ibe future.
My lordi. In all these Altaiodcra, there wee
Crimes and OR'ences against the law; ibey
thought it not unjust (circumstances cooaiderrd)
to heighten and add to the degrees of puoivh-
mcnl, and that upon the Gnt ofiender. My
lords, we receive, aa just, the nthcr lam and
statutes made by tliese our ancestan, ttwj are
die rules we go by in other cases. Why ahoaid
we diifer from them in thb alone? These, my
lords, arc in part those things, which hate satia-
ftcd the Commons in passing tt>e Bill, it is now
left to the judgment and justice of your lord-
Upnn the close of Mr. St. John's Speech the
house adjourned, nor was there one wotd spoken
hut by master St. John, only the Lord Lieate-
nant used the last part of his rbeionck, and hr
a dumb eloquence, ' laanibta aiudcrn ttrnt,'
often holding up his hands lowanls Heaven, all
along' Mr. St. John's Speech, made bis repliea
ivith a deep Mleace.
April 30,
On Friday, tlie Earl petiiionet) the Lords lo
be henrd a-^ain, nllcdsing, Th:it his lawyers h.id
not fully spoken at tiieir last meeting, bat titii
was denied him, because the House of Com-
raoni were to haie tlie last Sjieech, uor wet*
they control to speuk agnin.
The KING'S SPEECH to the Cokkok.
Upon this information, or what ebe is not
known, the King (it seems, tearing tbe incon-
stancy of the Lords) came to the hiHise on
Sntunl&y, May 1, at ten of Che cluck, and hai^
ing called for the House of Commons, spake
much to this eflect ;
' That he had sincerely, withflDi afiectioa or
■ partiality, endeavouied to inform himself coo-
' reming the Lieutenant's Charge ; tud had, at
' length, Htiouily pondered with binieif, both
.1513]
STATE TRIAIJS. 10 Chailes I. 1040—^ H^h TnoMa.
[1514
' ■oiicening th« Matter of.Fact, and the Mat-
* ter of Law : and nuw it ecooil liim in hnnd <o
' clear their judgments, diaa to exunemte bb
' own oinicieDce. For tbem, he had two
< thio^ 10 declare:
' Fuat, That there was never such a project,
' nor had the lord Strafford etrr offered such
< Adi'ice, far (be iraasporting of the Irish Army
' iot - RiigUnd ; k> thiit in nothing ths Lieute-
' naot bad been more initunderst»od than iu
' that : whicl^ imjiatatinn did in no sioall mea-
' sure reflect on himself (ihe King) as if he had
f intended to make war upon his own Subjects;
' which ihau|h[ (he said) was far enoueli from
' his breast, nor could aay man in prohnhiliij
' think to unworthily of him, who had perceived
* how graciouslj he bad dealt *ilh his snbiects
' elsewhere, that had de^rred a great deal
' Secondlir, That the Liencenant had never
' advised him to n^''>l> "a Arbitrary' Govern-
■ mmi; nor, if he had, slioald he have escaped
' condign punisbmant: nor would any of his
' good subjects ever think otherwise, unless
' the; conceived him eitlier to be a Fool or n
'Tyrant; that he eitlier could not, or would
' not discero such wickedness. He was well
* content, he said, with that AutlioHtj and
* Power which God bad put into his ha5ds ; noi
' sboold he ever think it his Prerogative, to in-
* trude upon the propriety of the subject.
' For himself, aod his own conscience, be
' said, he was now tu declare, That, in bis
' own judgment, there was nothing in the Pro-
' cess against the Lieuteniuit that deserved the
.< censure of Treaion. Oversights and Miide-
* meannrs there were, in such a measure, that
■' he confessed the loid Strafford was never wor-
' tliy bvreaAer to bear an; otfice in hts king-
* doms, no, not so much as of a Constable ;
' but was to be anawerable for nil his enxirs,
' when they were to be charged opon him; and
' ' to this none of them should concur with
< greater, alacrity than himself. That he hoped
' none of them would deny to give him tlie pri~
' vil^e of the lint voice, which was. That be
' would never, in beait nor band, concur wiib
' them to punisli this qiiu> as a Traitor; and
' desired therefore, that thev would chink of
' tome other way liow ihe busiaes* might be
' qoniposeil : nor should it ever be leu dear to
' him (though with the lo!» of his dearest blood)
■ to protect the innocent, than to punisi ''
' guilty.' •
May 8.
Upon Saturday, (he Bill against the lord
Strafford passed the lords ; (beie were 45 pre-
sent, of which IQ iniccd r')r him, and 26 iigainst
him. The grealeit part of his ftHeiids absented
themselves, upon pretence (whether true oc
supposititious) chat ttiey feared the multitude ;
• ■■ As soon as the eari of Bedford was dead,
the lord Say (hoping to receive the reward of
(he Treaaurerihip) succeeded bim in his un-
de^takil^g, and faithfully promised the king,
' that he should not be ptessed in the matter
'oftbeeailofStraff'nrd'slil'e'.' and under that
promise got credit endugh, to persuade his ni
jesty to whatsoever he said was necessary
that bu«inen. And thereupon, when the B
was depending with the lords, and when there
was little suspicion that it would pass, though
u every, day by MosMges
ike houfo of I
endearoured to quicken them, he persuaded
be king ' to go lo che hou>e of peers, and ac-
' cording to custom to srnd fur the bouse of
' cummoDS, and ihen to deilare himself. Thai
' be could not, with the s»fely of a good con-
' science, ever give bis consent to the Bill that
' was (here depending before thtm cinceming
' the eurl of Strafford, if it shuuld be brought
' to him, becBUje he was not sat:slitd in rhe
' point of Trea>.on ; but he was to fully salisficil
' that the Earl was unfit ever to serve him
' more, in an^ condition of emplo.tmeiit, that
' he would join with iheiu in uny act, to mak*
' him utterly incapable- of ever bearing office,
< or huving any other employment iii any of hi*
' majesty's duminiuns; which be hoped would
' satisfy tbem.' — This -advice, upon che coiili-
dcnce of the giver. Cite King resolved to follow.
But when bis resolution was inipaned lo the
Earl, he immediately sent Ins hrotlier to him,
beseeching his majesly ' by no means to lake
' that way, for that he was lunst assured it
< would prove very pernicious to him; and
' therefore desired, he might depend upon the
' honour and conscience of the R^rs, without
' his majesty's interpusition.' 'Dte king told
his brother, ' that he bad taken tluit Uesuia-
' tion by the advice of his be^t friends; but
' since be liked it i<ot, ho would decline it.*
The next innrnin^ the lord Say came again to
him, and finding his raajesly altered in his in-
tention, told him, ■ Ifhe took that course be
■ advised bim, he was sure it would prevail ;
' hut ifhe declined it, he couM notprumise his
■ majesty what would be the issue, and shuuld
' hold himself absolutely disengaged Jroin any
' undertaking.' The king observing his positive-
ness, and conceiving his intentions to be veiy
tincere, suffered himself to be guided by him ;
and went immediately to the house, and snid
as the other had advised. Wliether ihnt bid
didintniih believe the discovery of his mn-
jesty's conscience in that manner, would pro-
duce the effect he foretold ; or i« bather he ad-
vised it treacherously, to bring on those incon-
veniences which afterwards happened, I know
not: but many who believed his will to be
much worse than hii underalnnding, had tb<i
uncharitableness to think, that he intended lb
betray bis master, and to put iht ruin of fh«
Earl out of question. — The «vent proved very
fatal ; f^v the king no sooner returned from th«
bouse, than the Hiiuse of Ciimmons, in great
passion and fury, declnred this last act of hit
oiajeaty's, to he ' the most unparalleled breach
' of pnvilrgc, that bad ever happened; that if
' his majesty might take notice what bills wera
' patsiog in cither house, and declare his owd
' opinion, it was to forejudge their Gsunxh^
MM] STATE raiAlS. liCiiAmMB J. l6^~lVi4l If tit Bart if Sinford, {Uit
Snwlaf bU the da; the kiag ma temlvle
■ever to give mv tu Uw Bill * ai^iDK Itw lard
Sctatttrd, (eUitig'tticn widid, 1M k teaumi
■triDge to him dmt ibe nmi cm>M not rfie, tiB-
ku M, and he ootj, by flivinc
king's legwlalive way, ibonld cundsMn
and tbc; ibonld nnt be able tu tupply the
Conneti wealth withwhnlnonie bws, Mikable
M Ibe diseases it laboured unrirr; That this
WM the greeuH obsimctioii of Jmtice, tbit
could WiiaeijiHed; That tlierand ithoeoaver
had taken tbe lute proteMHtioD, were buuad
10 nainCHin the priTileges of parliaraeaE, which
were now too grnsslj invaded and violaicd :'
with Kiauy jbarp discounies U> tbu purpove."
Lord Ckreiulan.
* Lord LlareAdon, in bis lltttnrjr of tbe Ut>
bellion, (vol. 1. p. Oil, Uxrcrd avo ed. 1717)
Mjs, " That when tbe Prirj Council preMed
tbe Kiac tn pas^ the Bill of Attiiader agaian
tiie Eiirl of Strafford, saying, ' tiiere nni no
* Other waj lo presefve hiraseu aod his poNerity
' thaa bj^doinii;, and therelbre that be ought
' tabe ntore tender of ibeaafe^ ofthekingduni'
* than of aiij one person how innocent aoever:'
bb majeat; told thtm, ' That what had been
< proposed to him to do, was directly contrary
■ to his conscience, and that being *a, be was
* sure tbej would not persuade liim to it, ihoui^h
' ibemsdvea were never so well satiiiied.' I'o
that point ihej desired liini ' lo confer with his
* l^ihops, who their di>ubte(l not would better
' inform lii« c«nscience.' The Arehbithop of
York [Willinms] was at hand ; who, to his ai^u-
went of conscience, told him. That ' there was
' a Private asd a Public conacience; that his
* jiuhlic coDicieooe as a king might not only
* dispense with, b«it oUiife btni Ut do that wtiic^i
' WHS a^insl his private conacience as a man ;
' and tliat the qaeMion vrai ool. Whether he
' ahould uve the Eail of Strafford, but whedier
' be should periafa with him ; that tbe cob-
' science of a king to preserve his kingdom, Ibe
* conscience of a husbund lo preserre his wile,
' ibe conscience of a father to preserre hii chd-
* dren, (all which were now iu danger) weighed
< down abuadanlly all the cnnsidenuioni tfaa
' conecieDce of a master or a friend cuoki sng-
' f^t to him for llie preMrvatinn of a friend or
' iGTvaat.' And bj such unprelatical, icnaiBiai-
ous argomcncs, in plain terms adTiied bun' eren
* for conscience sake to pass that Act.' Though
(his biabop acted hi» part with more prodigions
boldness and impietj, others of the same func-
tion (tor whose feeraing and aincenif the king
■nd the world had greater rEveience) did not
what mi)[bt have been expected from their
ttslling or their truM, but at least forbore tu
fortifj and continn a conscience, upon the con-
rage and pietjT of which, the securkji of their
peiBons, and (kcir order, did altaaUiWlj under
findd^md."
Tbe EakL'i LETTfH lo the Ki>
* It huh been m; greataat pief ia ali mj
' between jaar majcMT and y»u pecfde, mi
' to faaee pr»a OMHiael tending ta the diwpw I
' of Toar waicMy aad joar ikitm kingd— ■.
' Maat tn* it ia, that awcfa an aiwnpt (ff
' pti*«leixicM)iliaaconsidaml)bad baMagi^
' maJoaM, aeein^ (hroti^ four pacMtM (mwr,
■ I was ao promded, aa 1 oould not ^ipact i>
' any kind to laead aj fortaine, or t* pteaic bj
' Bud, Bore ibaa bj rfMio| where your baaole-
* out twnd had placed uie; aaj, tLe btniooa if
' Hmt mightily Mista^o; for oato yuar ■■•
' Jesly it ii well known, that my poor and hi-r-
' Ue advkea caadaded still iii tiiia, I'hal yaur
' miiet^ should aa*er ba happy, till there ware
' a right imdentaiKling pmcured betwixl yea
' and then : No otlter meaaa to effect and icN
' lie chit happioeas, but by tbe o»aii*el and a»-
■ sent of tbe parliament ; and no r'ay to pre^
' vept the growii^ evtU af tbis Mate, bat by
' putting yourself eatiielj' uson (be loyalty an4
' food aAciioti of your sulffects.
' Yet (lUcb is my misfbrtane) tlie trwfii fintb
little credit, ttie ounuary (it awe) jjeaMally
beliorad, and myself repMed the oaiwe of ths
{•real Mparaiiun betwixt yeu aed ^onr pai^^ :
Under a heavier ceasura than tus, I aM per-
saaded ao gentleman can M0er ; and bdw I
uiideratand, that (be wods of aaea an the
' mofe iaoenied agakiit me, notwithataadiof
your mi^eity hub declared. That ia yam
prinoely opinion I am not guilty ef TicaaoD,
iiur arevou satiilicd in conscieBce to pan tbe
Bill. This brings me iota a graat Mteiglit.
' Htrte is hefore me the luia of aiy childaea aial
ianiily, hitherto untouched ia all ibebraaches
of it with any foal crime. Here are beibic
me the many evil* which may bt^l yoac sa-
cred penoo, and the vrbole kiogduni, ahoaid
' yourself and tbe parliamaet be leaa lariiimf
tlie one with the other iban is nncfwaty fur
the king and people. Bereara brloremetba
things mMt valued, moil iearad fa^ Modal
men, life and death: To say, Sir, the>« kalh
' not been a coafiict within me about thesa
' thinip, were lo aiake myself less man thv
' (God knows) my inlumities will give me le»ei
and to cull a destruction upon myself and lay
yoong chiidceo, where the wtentioas (at least)
' of »y heart hare beea inaeceat of thit great
ofienoe, (may ba bclievad) would find no aan
consent from iW«h and blood.
■ But, otit of much ■adactt, 1 fa come to*
reaolutimi o( that whidi I lake to be best be-
contag ae, that ii, To look upon ihat^iiiiah
is principally (a be coasiderad m itself, aad
that i«, doubtless tbe pn»pencf of your saoad
Parson and the Co«maaweaHh, iofiaitely lo
be pceferred'hefore >my mm'* pwnwiaiutat ;
And ihercfoft^ in lew wor^ aa I hare |Hit
^«eif wteUjr apt» Jjie kuaow aad ^aMis* •!
,„_, ,Goo;;lc
tmfi STATE TUALS, 10 CtiAtLU t 1640:-^ Uiffi TVvomm.
^mj p«en, mni to dcMrij m I wish yov na* '
* je^]> had keen pleased to havti spared that
* Dednbititm ntyoon on SattintBT laM, and to
< baTC left me intirety to their lordchtps ; lo
' now, (tu set jour majestj'b comcieiice at
'libeftj) I do DHni hHinbljr bneecb ^oa, Tor
< the prevenline of Mich mischlefi as May hap-
* pen D7 your Refiisal to pass the Bill, hy tbia
* iDCant to reaiovo (praised be God I cannot
* iay this nccnned, but I confaia) this uiifor-
' (mate thing forth of the wnj toward* that
' ' blessed agreement, which God, I tnnt, shall
< Ibr ever escabliah betwiit jtio and your sub-
ejects. Sir, mjr consent herein shall acquit you
* nor* to Oud than all the worM can di> be-
' side. Tu a wiHins man there is no iajurj'
'done; andiosbydod'sgrace, I forgiieallthe
' norld, with a calntness and taeekneil uf infi-
'oite conlentiuent to mj dislodging soat, bo,
* sir, I can give iha life of this world with all
' cheaffiilaen iuugijti^le, in the just ackaow-
' ledgments of your aiceediag favours, and oaly
' be^, ihat ia your goodocM yoB would vooab-
' safe to cast jour gracious re^rd upon my poor
* Km and his thr«« sisters, less or more, and no
' otherwise, than tlieir unfortunate fathei- shall
' appear mon: or less gudiy of this death. God
' preserve your majesty. Your majesty's uiotC
' humble, and faithfiil sijLJect and servant.
"" r. May 9, 1641, ""- —
Tower
' Stkapfobd.'
* Hume, in a Note to tlie 6Lli volume of
Ht History, says : " Mr. Carte, in his Life of
the Duke of Orujond, haj given us some Evi-
deifce to prt>ve, that this Letter nas entirely a
fbrgeij of the popular leaders, m order to in-
duce the king Co sacrifice Straffbid. He tells us,
that Strafford aaid so to his son, the niftht be-
fore his eiecucion. But there are some rea-
fons why 1 adhere to the common wny of telling
this story : 1. The account oflbefbrgery comes
through several tuiuls, and fioca men of cha-
racters not fully known to the public : a cir-
pamstance which weakens even evidence. It
U a hearsay of a hearsay, fi. It seems unpos-
forgery, and expose his enemies to their
rited infiimy. 3. It ie not to be conceived but
Clarendon and Wbitlock, not to mention others,
must have beatd of the matter. 4. Sir George
Ratcliffe, in his life o( Rtraiford, tells tht storv
the suriiB way that Cloiendon and Whltlock
do. Would he also, who Has StraSbrd's inti-
mate friend, never have heard of tlic forgery ?
It is remarkable, that this Life is dedicated oi
addressed to young Strafford, would not be
have put sir George right in so material and in-
teresting a fact ^'•— That this Letter was a for-
gery is also slated, and inferred from argn-
ments, tn Carte's History, bat there no autno-
titvii ^iven for the assertion that loni Strafford
told his sou he had not written such a letter.
When told by secretary Carleton, that the kinc
had signed the commisMon for passing the Bill
of AtCuuder, Simfford rose from his chair with
marks of astontstaneat aod faorrar, and raismg
[1514
Upon the receipt wharcof, aotl aAar dwy hwt
wieitkd hisa bteatklees, at last tktn dt4it
miniHi ; bung erwcaaie with such ioecsMAt
iaiportuiiiliaa, he yielded. And about nine of
the clock St night the Kiag pvomited to sign
both the Biljs the a«it martaa^; wbick «a<
aeconiiagly done, and a CwnaiiiaioB (irawil up .
for his Eiacution.
The £*&!.■• PETITION to the PKBiSi
The Earl of Stratford undentandina ibot bsl
majesty had pa»ed the Bill, did hgiably peu-
tioo tba bouse of peers ; viz,
' Seeing it- is the gnod will and pleasure of
' God, that your Pclitioncr is now shortly to
' pay that duty whiob we all owe to our trail
'nature; he shall in all Chrittian patience
' and charity, eoofoiiB and svbmit himself to
' your justice, ia a comfortable assurance of
' tbe great ho^ lud up for us, in the mercy
' and merits ol our Saviour Uesaed for ever,—*
' Only be humbly craves to return your lord-
' ifaipa most humble thanks for your noU*
' compatsion towarda those innoecnt ebiUren,
' whom now with his hut blewine, be nmst
' coDuait to the protuctioii a! Alaoighty God,
' beseeching your lordships to tinish his piou*
' intentiana tovrards titem, and deairiaglkat lh«
' reward thereof may be ful&l)ed in you, bj
< Him that is able to give above all we are abla
' (o ask or think ; Wherein I trust the honour-
' able House of Conmons wiU aSbrd Ih^c
' Christian atsistance. — And so beseeching
' yaw lordahipa charitably to forgive all hit
' omissions aod infirmitiei, he doth very haar-
' tUy Bad truly recommend your lordships to
* the raercita of our beaveoly Father, and that
' for his gondneas he may pulect i
' good workj Amen.
Tss BILL o
WsBrwoaTa.*
ATTAINDBK.
' Whereas tba knights, dtiseiw, and bui>
' gesees of the [louse of Commons in this pre-
< teat parliament assembled, have in the name
■ of themsetres, nudnf all theconuDonsof Eng-
■ land, impeached Thomas earl of Strafford of
' H^h-Treason, for endeavouring to subvert
' the ancient and fundainenial laws and govern.
■ ment of his m^esty'a rqjdms of Enghind and
' Ireland, and to introduce an arbitrary and tT-
' rannicat government against law in the said
' kingdoms, and for exercising a tyrannous and
' exorbitant power over, and against the lairl
' of the said kingdoms, anij the liberties, et>
' tatet, and lives of his majesty's subject* ; and
' Kkewise having by hit own authority com-
' manded the laying and assessing of soldiers
' upon his majesty^ subjects in Irdand, against
' their oonsetits, to compel them tn obey bis
' Diilawfiil sammoni and orders made upop pa-
< per-petitioos in eauaes between party and
' party, which accordingly was executed upon
' divers of his majesty's subjects in a warlike
his eye* to Heaven exclaimed, "Put not your
trost in princes, nor in the sons of men, for 19
them thera it bo sahatioa."
I5!ff] STATETRIALS, IOChablesI. IGW.—iyio! qf lie Earl >^Sir^ord, [15»
' matiarr, within the Mid realm of Ireland; and
* ID so dning, diil levj wnr againtt the kiiig's
* roajmj and bi> lit^ people m thai kin^omj
' And also for llint lje, Ufion tlie unhappj di»-
' Bolutjoii of tbe liut parliiimenr, dii slander
* tbe bouae of coriimans to hin inHJeity, and did
' ceuDiel and adiiie his majf sty, ' That lie was
' ' loose and absolved from ihe rule of govem-
' ' ment, and tliat he had an aniiy in Irelau'l,
' '_bj wliich he mlnht reduce this kingdom ;'
' lur wtiich be deserves to undergo the pains
' aDd foifeitures ul* Higli-'f 'reason.
' And tlie said Earl liatii been an incendiary
* of tlie wans between the two kingdoms of
' England aod Scotland ; all which offences
< liave been sulficienily proved against the said
' Earl upon his impeacjiinent.
' Be it therefore enacted by the king's must
' excellent najesij, and by the lords and com-
' mous in this present parliament assembled,
< and by the authority of the same, that the
' said Earl of StralTord, for ihe heinous Crimes
' and uffences aforesaid, stand, and be adjudg-
' ed and attainted of lligb-Trenson, and shall
' suffer such pain of death, and incur the forfei-
■ turcs uf bis goods and chattels, lands, tent-
* ments and hereditaments of any estate of
' freehold, or inheritauce in the said kingdoms
' of England and Ireland, nbich the said Earl,
' or any other to bis use, or in trust for him,
■ huve or bad the day oF tbe Erst sitting of this
' ' parhamcnt, or at any time since.
' Pmvideil*, that no jiidgeor judges, justice,
' or justices whatsoever, shall adjudge or inter-
' pret any act or thing to be Treason, nof bear
* or determine any treuon in any other man-
' ner than he or they should, or ought to have
* done before tbe making of this act, and as if
* this act had never been had or made ; Saving
' always unto all and singular penons, bodies
< politic and corporate, their heirs aod socces-
' tarn, others than the said Earl and his heirs,
' and such as claim from, by, or under bim *U
< such right title and interest of, in, and to all
* " This Proviso," says Rusbwortb, " hath
occasioned the common discDiine and opinion
that this judgment against the Earl was enact-
ed never to be drawn into precedent." Mm.
Kftcaulay remarks, " This Clause, which re-
laies tn Judges in infenor courii, is consistent
Triih all the Arguments urged by tbe Commons
for the legality of their proceedings against
Stmffijrd. The sutoie of 1 Hen. 4, c. 17, be-
ing, as they asserted, to take away the p&rli»-
•nd restrain it to Rill, that it might operate no
farther than lo the piiiticulars contained in the
Bill. This clau<e of the Common) in tbe Bill
ttf Attainder agaiust StrafFnrd, shews a very
kudable attention to the preservation of Put-
lie liberty, yet it has been represented by mo-
narchical writers that the Bill of Attainder was
of so extrairdinary a nature, that the legislators
themselves were obliged to insert a Clause,
Ibit it ibould never b« dnwn into firecedeDL"
' and sjng^ilar such of the said lands, teoesieal*
' and hereditaments, as be, tbey, or any of
' (hem had before the first day of this present
' pariiainent, any tiling herein cantuined to tbt
' contrary uotHJlhstandiag.
'Proiided, That tbe pasting of this present
' Act, or his majesty's assent tbetcunto, sball
not he any determination of this present te*-
■ sions ot parliament; But that this preaent
' sessions of parhameut, aud all bills aud mat-
' teis whatsoever depending in poiliatnent, and
' not fully enacted or determined, and all sta-
tutes and acts of parliament, wliicb hara
' their continuance until tbe end of this pre.
' sent session of parliament, shall remain, coo-
' tinue, and be in full force a* if thi* act kad
The King's LETTER on behalf of tbe Eiu.
of STBArrORD.
Tbe day fijUowinj, the. King wrote dits Let-
ter to the Lords on the behalf of tbe Eari of
SiraSbrd, and sent it by tbe Prince*.
'MyLords; I did yesterday satislj (he jus-
tice of the kingdom, by passiug tlie Bittof At*
tainder against tbe Earl of SiraSbrd; but
mercy being as inherent and inseparable to a
king as justice, I desire at this tune in some
measure to shew tbat likewise, by suffering
that unfortunate man to fulRl the natural
course of bis hfe in a close imprisonment ;
Yet so, if evtr he make the least offer to es-
cape, or oBer directly, or indirectly, to meddle
in uiiy sort of pubUc business, especially with
me, either by message or letter, it shall cost
him his life, without Ciirtber procest ; This if
It may be done without the discontentment of
my people, will be an unspeakable conteot-
meni to me; to which end, as in tbe lint
place, I by this Letter do earnestly dcsir*
your approbation, and U> endear it more,
have chosen him to tarry it, tliat of all yaur
liouse is most dear to me; So 1 desire that
by a Conference, you will «)dcavour to give
the House of Ci>mmons contentment, assuP-
ing you that tbe exercise of mercy is no more
pleasing to me, than to see both houses of
psrl lament consent for my sake, that I sliould
moderate the severity of tbe hiw in lO import-
ant a case. — I will not say, tbat your cont-
plying with me in this my intended mercy,
shall make me more willing, but certainly it
will make me more cheariiil, iu gmnting your
just grievances. But, if no less than bis life
can satisfy my people, I jnust sny, f^t JaM-
tiiia. Thus again, recommending tbe coosi-
• Burnet «»y», " That 'he was told by Hol-
lis himself, whose sister SttafEbrd bad married,
tbat he drew up a Petition Ibr StraJtord, and a
Speech for the King to moke to both bouses in
hii favour ; that the Queen not only prevented
the King's going to tbe parliament, and chang-
ed the Speech into a Message, but prevailed
with him to add the postscript ■ If be must die,
' &G.' " Bumet'i UiK. of hit Own Time
IMI]
STATE Trials, id CatUBS I. I«40.— «r ff%A TWwMi. [15St
Sute, tbe Iawi, or the Rdiron or this Kin^
' dsration of m; intration to yon, I PMt, jour
* unalicrable and nfiectiunate friend,
' Whitehall, 11th May, 1641. Chaklei K,'
' P. S. If h« must die, il were charity to re-
* prieve him till Suturdaj.'
The EiRi.'i EXECUTION.
Wedn^ay, Ma
mounted the Scaffuld , ...
eances, and begun to take Ills lait bieirell of
his friendi, who appeared much more coocem-.
•d than himself: and obierviiig his brother, sir
Oeo^e Wentwurth, to weep excessively,
• ' Brother,' said he, with a chearrut briskness,
' What do you see in me to deserve these
teatvf Doth any indecent fear betray in me a
^ilt, or my innocent bnldness anf atheism }
Thiuk now that you are accompany] iif me the
third time to my marriage-bed:' Never did I
throw off my clothes with greater freedom and
content than in this preparation to my Brave
That stock (pointing to the block) must be m;
Sillow ; here shall I rest from all my laboure
[o thoughts of envy, no dreams of treasoo
jealousies or cares for the king, the stale, ol
myself, shall interrupt this easy sleep ; there-
fore, brother, with me, pity those who, besides
their intention, have made me happy; rejoice
ia my happiness, rejoice in my innocence.'
Then kneeling down, he made this Protesta-
tion : ■ I hope, Gentlemen, you do not think that
•ither the learof las%orliiveofrepatatiQn, will
suffer me to beiy Gud nnd my oun consciebce
M this time. I am now in the very door going
oat, nnd my next step must be from time to
eternity, either of peace or pain -. To clear my-
Mlf before you all, I do here solemnly call God
to witness, I am Not Guilty, so tiir as I can un-
derhand, of the (treat Crime laid to my charge,
ii»r bate ever bad the least inclination or inten-
' tion to damnify or prejudice the King, the
•'" On Wednesday, May Igtb," savs Ken-
aetC, " the Earl was brought to the Scafibid
«pOD Tower-bill ; as he passed near the lodg-
ing of the Archbishop of Canterbury (whom
he had desired by a message to be at the win-
dow and to bless him as be went to execution)
JM looked up, and bowing said, < My lord,
' your prayers and your blessing.' The Arch-
bishop lift up his hands for the si^ of hestaw-
iog both, but was so overcome wiih grief that
be feU back in ■ swoon ; the Earl bowed again,
and said, ' Fatewel, my lord, God protect
* yoor innocency.' Many of the specIaCors
observed, that he walked more like a genera],
at the head of nn army, than like a condemned
Kan. The IJeu tenant desired bim to take
coach, for fear the people should rush in upon
bini and tear him in pieces : ' No,' said he,
' Master Lieuteaanc, I dare look death in the
' face, and I hope ibe people too. Have you
' B care that I do not escape, and 1 care not
* bow I die, whether by the hand of tbe execu-
' tioner, or the madness and fury of the people,
'if that may give tbem better coateotj it is all
* one to ma.' "
V«L. III.
dom; but with my best e
all, and to support all; So may God be mer-
ciful to mv soul !'
Then rising up, he snitt, be desired tosp^k
somelLiog lo the People, but was afraid he
should be heard by few, in regard of the noix;
but having first fitted himself i» the block, and
rising, again be thus addressed hiuiselfto thfl
spectators.
' My Lord Primate oFIreland, and my lords,
' and the rest of these noble gentlemed ; Il is a
' great comfort to me to have your iord-hips by
' me this day, because I have been known to
' you a loDf time, and I now desire to be heard
' a few woi^s. I come here, by the'good will and
' pleasure of Almighty God, to pay that last
■ debt I owetO'Sin, which is Deaih; and by
■ tbe blessing of tliat God, to rise ngsin through
' tbe merits of Jesus Christ to righteousness
' and life eternal.' [Here be was a little intet-
rttpted.
' My lords, I am come hither to submit ta
' that Judgment 'which hath passed against me;
' I do it with a very quiet and contented mJod ;
' I thank God I do freely forgive all the world;
' aforgiveness that is nol spoken from the teeth
' outward, (as ibey say) but from ibe very
' heart ; I speak it in the presence of Almighty
■ God, befc^re whom I stand, that there is not a
< displeasing thought arising in me towards any
' man living. . I thank God I can say it, and
' truly, loo, my conscience bearing n'
' that in all my employments, . sir ~~
' honour to serve his mi^esty, I n
' thing in the purpose of my liea
' tended to the joiot and individu
' of king and people, althou«h it hath been mf
' ill fortune to be misconstrued.
< I am not the first that hath suffered in thia
■ kind; it is ihe commnn portion of us all, white
' we are in this life, to err ; righteous judgment
' we must wait for in nnoiher place, for hcrt
' we are verv subject to be mi-judged one of
' auotlier. 'There is one thing that I desire lo
' free myself of, aod I am very confident
' (speaking it now with mticli chearrulncss) that
< 1 shall ubtaio jour Christian clurity in the
■ belief of it. I was so far from being Bgaiost
' Parliaments, that I did always think the Par*-
■ liamentsof England were the most happy con-
' Btitutions that any kingdom or nation Iive4
' under, and the best means, nnder God, t«
' make tbe king and people happy.
'For my death 1 here acquit nil Ae wo rid,
' and beseech tiie God of heaven heartily to
' forgive tbem thai contrived it,- though in tfak
' intennous and purposes of my heart I am Not
' Guilty of what! die for: And, my LordPri-
' mate, it is a great comfort fi>r me, that hit
' inajeity conceives me not meriting so sever*
' and heary a punishment, as is the utmost ex«>
'cution of this Sentence. I do infinitely re-
' joice in this mercy of his, ami I beseech God
' to reiarn it into his own bosom, that be may
' find mercy when he stands moil in need of it;
' I wish tbn kingdom all tb« piospcn^ and
:e I had tbe
ler had anj
I protpentj
JiB8] STATETRIALS, IACrahlesL lOW.— Trial i^ the Snrlf/Strtiford. l\52t
, not siming ai hieber pre>
' hfip|>inMt in the world ; I did it livini;, nnd
' noiT djlnp, it is mj wi^h. 1 do most humbly
* recommend this to <vBry on« who hears me,
' and desire the; would Iny their hands upon
' tlieir he;irta, anil consider ^eriouilr, whether
< the Irainning of the happiness and refortno-
* tion oia kingdom sliould be written in letters
* of blood ; consider this when you are at jour
' homes, and let me be never so unhappy, us
* that the least drop of my blood sbouin rise
'* up in judgment against any one of you : but
' I fear you are in a wrong wny.
' My Lords, J have Lot one word more, and
< with tliat I ^hllll end. I profess that 1 die a
' true and obedient son lo the C'liurrh of Kng-
^ land, wliersiii I "as born, and in which I was
" bred. Peace and protperity be ever to it.
' It liath been objected, if it were an objec-
' tion worth the answering, That I have been
-* inclining; to Popery; but I say truly from my
< heart, that from the time thnt I wag 31 years
* of age, to tliij prcMDt, going now upon 49, I
' never had in my hetiit to duuht of this Reli-
* gion of the Church of Enjiland, nor ever h;Vd
■ an^ man tlie boldness to suggest any such
' thing to nie, to, the best of my remembrance.
'And so being reconciled by the merits of
' Jeiius Christ my Saviour, into whose bomm 1
' hope I sliall shortly lie gathered, to those
* eternal haiipintsses which shiiU never have
' end ; 1 desiic heartily the Pireivcneis of every
' man for any rssli or unadviM^i words, or miv
* thing done nniiss. And so, my Lords anil
'Gentlemen, furewell; farewell ult tliii:gs of
' I desire that you would be «ilent, and join
* with me in pr«yer,nnd 1 trust in God we stiall
* all meet anil live eternally in Henvcn, there lo
* receive thu accompli shmenc of all liappiiTVss;
' ivhere every rear shall he wiped away from
'our eyes, and e«ry sad ihnueht from our
< hearts : And so God bleu this kingdom, and
Then turning himself about, he saluted nil
the noblemen, and look a solemn leave of nil
considernble persons upon the scaffold, giving
thtin his hand.
Atler that, lie said, ' Gentlemen, I would
* say tny I'rHvcrs, and intreafyou iill lo ptnj
' wirb me, and for me ;' then his Chanlain Inirl
the Book of Common-Prayer upon the ehair
belbre hiin ai he kneeled down, on which he
] rayed almost a quarter of an hour, and thf n
as louE, or luneer, wiilioiit the Book, and con-
cluded, with the I,ord's- Prayer,
Standing up, he spit s liis brotlier. sir George
Wcntworth, and ckIIs him to him, saying,
* Brother, we- must part ; remember me to my
' filler, and lo my wife, and c^iriy my hle-^sing
' to my son, and char^ hiin thai he le;ir Go<l,
' and continue an iibtdient son to the Church
* of England, and nrarii him that he bear no pri-
' vnie Erndje, or reienge. townrrl any mnn
■ concerning me; and bid dim beware Uiut he
* meddle not with ciiurcb-livingii, fir that will
' prove a moth and canker lohini in his estate;
* anil, wuii bun tw content himKlf to be a ter-
' ferments.
■ AliUrJ] To his son, Mr. Wentwortb, he
■ commends himself, mid gives him ctiarge to
' fc^re his God, to submit lo his king ivitii all
' f:iilh and allegiance in things temporal, to the
church in thit>i;s spiriiuni ; cliargeih him again
u,jie
oliiu
to meddle with llie patrimony of
'tlie church; for if hedid.it would beacnuker '
' lo eat np the rest of his e-toie." 1
' Carry my blessings also to my daugblere,
* Anne and Arabella, diaige than to serve and
' fear God, and he will bless tliein ; not fbr^et- .
' ting my little infant, who yet knows neither :
' good nor evil, and cannot vpenk for itself; God
' BpeaL for it and bless it.' ' Now.'saJd he, ' I r
' have ni"h done; one simkr will make my '
' wife husTiandless. my dear children fattiertess,
' and my pour servants masti rle^s, and will se- '
' parate me Imin my dear brother, and all my
* friends; but let God be to you and (hem all
' in all.-
Afier thiit, (ioing to lake off his doublet, and
to maku himself ready, he said, ' I thank God
■ I am not afraid of 'death, nor daimied witb
' any di»ciiurBaement rising from any feais, but
' do as clieaitiillv put olT my doublet at this i
' tluip, as ever I (li.l when I went to bed.' Then
he put oil' his doublet, wound up his hair with
his hands, and put on a while cap. I
Then he called, ■ Where is Uie man that is t* |
' do ibivlast olhce?' (mcHningth* Executioner)
'call him tome;' Wiien he came and a.>Led
him forgiveness, he told him, be lbri;ave him I
atid all liic world. Then bneelini! ttowii by the i
block, he weit to praver again hiinself, the Pri- '
male of Ireland kneeling on tlie one side, and
iheMinisler on the other: to the which -Minis-
ter, alter prayer, he turned himself, and spnke
some lew words softly, having hii liands luied
up, and closed with ihe Minister's bands.
Then bowing himself tn lay his bead upon
the block, he told the Executioner, ' 'Iliat he
■ would first lay down his liend loiry the fitness
' of tilt- block, and take it up »> lin before ha
' would lay it down for good and all ;" and so he
did ; anil before he laid it d'rwii B|;ain, he told
the Kkecutiiiner, that he would eive hiai warn-
ing when 10 strike by stretching forth his hands,
and picseutly laying down his neck upon the
block, and stretching firth his bai'ds, the Exe-
cutioner struck off Ills liead at one blow; and
taking it up in his hand, shewed it t» all ibe
people, aud said, ■ God save the king."*
* " And so frll this noble Earl, who if his
Master could have saved him, niiLbt hme been
able to rave his Ma-ti-r: This was indeed the
blow that by degrees reached up to the king's
oB-ii liea|l. Take his character thn^. given by
the loid Chirendon. * I'hus fell the greatest
' subject in power, and little iuteiior to any in
' fortune, tlii^t was at tbtl tnne in any of the
* three kin^di.ms; who cuuld well remenibet
' Ilie tinie when lie led thoae people w ho tlmi
' pursued him to bis grave, lie n u a mu of
6353
. STATE TRIALS, 18 Cbakles I. I6i0.—Jbr Higli Treawn.
[1530
.Uia bod/ was ariemards tiiihalrncil, and ap-
>oi/ic<-d to be carried jnu. Vorktiilrc, there to
>e buried amongst Ills ancesldrs.
ft,n ACT for RrvERSiNn the Knrl of SiR*r-
roBD'i AITALNDKR.'
• Whereas Tli«uias late Earl ^f Strnfford was
' impe itched of Uii:li Treosun, upon pretence of
■ endcavuuringlo subvert the I uiid;|incntal laws,
' and ctJled lu it public tud solemn Arrninn-
' ineiit anil Trill before the peers in parliaiiient,
* where he mndo n parlicolac Dcfrnce to eierj
* Article objected against him; insomuch tli at
* ijie lurbuieni jjarty then weiiig no Imiics to
* «tfecc their unjust desJEDs, bj any urdinarj'
* way and iiicthoil nf proceedings, did at last re-
■ solve to attempt the Dettmciion nnil Altaio-
* der tif the said £arl, bi nu Act of Parliament,
■ to be therefore purposely made, to condemn
■ him upon Accumulative Treason, iwne of the
* [» eteiided Crimes being Treason npiii I, and so
■ cuuld.not be in the whole, if tliey had been
( proied, as they were uut: and ulso judged
< him guiky of Coustructiva Treason, (that is,
* of levying war agninst the kin^) tliou^^b it was
I only the commanding an Order of the Council
* great parts, and eitraordinary endowments of
' nature, nut unadorned niih some addition of
* art stid learning.' " Kennett.
The following are the amiable and sound ro-
flections of iUr. Fox on this transaction : " The
prosecution of lord Stralford, or rallicr llie
manner in which it was carried on, is less jusii-
fiahle" (than the regulations proposed by the
Parliameni in rejjntd to the Militia). " He
^'as douhtleiij a great delinquent, and well de-
served the tevereat puiiijbment; but nothing
thort of a clearly proved case of selt'defence
cnn justify, or even excuse, a departure from
the sacreii rulis of criminal justice. I'or it can
rarely iiidetti happen, that the luiichiL'f to be
eppriilieiidEtl from suircring any criniiunl, bow-
ever guilty, to escape, cnn be equal to that re-
sulting from the violalioo of those ru!;>s to
which tiie innocent owi: the security of all that
is dear 10 tl tern. If such coses h»ie c):i>tcd,
they must bare been in instances nitcrc triul
has been vtholly out of the question, ns in lliat
of CiEsar, and other tyrants; but when k man
ii once in a silutitiun lo be tried, and hu< person
in the power of his accustrs and his judges, he
can no lunger Ic funnidable in that degree
which alone can justify (if any thine can) the
vioiution of the substaniiul rules or criminal
proceedings." Introductory Chapter to the
Hiitory of the early part of llie reign of James
the 3d. 410 cd. p. lU.
One of the most candid representations which
have been exhibited of the Char^ter of lord
Stiaffoid, proceeds from the pen of Mrs.
Hutchinson, who thus eiprc-sses hurself in her
Memoirs of the Life of Colonel Hutchinson s
" There were two above all the rest, who led
the vna of the Kiiiti's £vil Counsellers, and
lliesB were Laud, archhisbop of Canteihury, a
ftlltn nt moB mractiun an^ arrogimt pnde,
Board in Ireland, to be e>eci>ted'by a Serjeant
at Anns and three or four soldiers, which was
the cunstant pntclice of the deputies there for
niongtime. To the which end, they having
first presented a Bill for tliis ioteot lo tli«
Ilou^e of Commons, and Undine there mors
opposition than they expected, they' caused «
' inutciiudenf tumultuous pcrsonij to come dowik
' to Westminster, aniied nitii swords and staves,
njid 10 fill bulJi the Palace Yards, mid all tha
approaches to both liuuses of pari i:nuent, with
fury and cUniour, and to requiie ' Justice,
' speedy Justice,' against the Earl of Strafford;
mid having by those and other undue pructiceSi
obtained (hut Dill to pass tl>e IJouie of Com-
nions, they caused tite Names of those reso*
lute gentlemen, who in a case of innoi.eQI
blooifliad fii'ely discharged tlieir consciences,
being 69, to be posted up in several plncet
about the cities of London and^ West minster,
and stilcd theui " StralTordians," nud Enemie*
to tlieir Country ; hoping therehy to deliver
them up to the fury ot the people, whom ihey
liad endenvuuted to incense against them.
And then procured the said Bill to be sent up
to llie Ik'Ujc of peers, where it havhig sum*
and the earl of SiralTnrd, who as much out^
stripped all the rfst in favour, as he did in
abilities, being a man of deep policy, stern ra>
solution, mid ambitious ze:il to keep up tha
glory of his uivti greatness. In the heginnin!;
of liiis king's r(.i»n, tills man liad been n strong
nsscrtor of the Libeiiies of the People, amonj
whom he had gainod himself an honourahlero
puCation, and was dreadful to the Court Fatty,
who tlicteupon strewed snares in his way, and
ivben they found a breach ut liis anibiiinn, his
soul was that way entered and captivated,
lie was advanced hrst to be Lord President of
the Council in ihe North, to Le a Baron, afieri
an Sari, then Deputy of Ireland, the nearest
lo a favourite of any man since the death of
the duke of Buckinghnra, who was raised hf
his llrst master, anil kept up by the second^
upon no iicrouni of personal worth, or any de-
serving abilities in hhn, but only upon violent
and private incliontioni of ihe prinrej. Hut
(he eml nf Stratford wanted not any accom-
]ilislinient, that could be desired in the most
serviceable miiii-ti:r of stiite. Besides, he hav-
log made himself odious- to the people, by his
revolt Itorn iheir interest, to thai of the op-
nreisive court, be was now obliged to keep up
his own interest with his new patty, by all thn
malicinas practices that pride and revenge
coDid inspire liim with." ¥. 60, 69, Mem. of
Col. Hutchinson, hy his Widoiv.
How dill'orent this from the armeant, undi-
geslcil, and scarcely human scurrihly <ii Mr!<.
Slarnulav, who, after telling us in tlie fit of
her diatribe against StmlfoTd, that ' the bndncss
of his heart had corrupted his judginei>t,' sug-
gests in a note, that it was rather the badness
of his judgment which had corrupted bis beaitf
• See Luders's *' Observation* on tlia Low mT
Uigh Trtason." 99, lOU
.oogic
U27] STATETKULS, IdCvABinl. lUCU-TrWV^ikBv/y&Mfbr^. [IS
' timenaeduDdeTgrcatn'dcLbnmii'iii; atlatt,
' 13 ■ time obcD ■ preat p«rt of tiiC peen were
' absi^Di b* ir^ion uf the lUDulu, and ihuit of
' ttote » r^ »crc pnwot proieMed against it,
' ibe vud Bill paa-nl tbe houte or pccn : and
* «t lenftb hu mnjeUTi ibe late km^ Charles 1,
' of ^<iH'>ia m«ut>rT, grsDied B Commiwion hr
* giiiog l>» mj>l uMnjt iheteuiito ; obich nc-
* Tcnlk-leu ■« dune by hij sud majif^ij «iih
' euxedio:: fie^ loirm iLrn, and eter rcniem-
* bere4 bj liim iritti oaeipm^blt ^ef of
'Watt; andoBt a'LUni3ie6tT'j ^rrai pietT, he
' did pnbUdr exptm ji, wheo Lis oun ucred
' life wB» takeo
* tjaitoia that
• For aU -faich Ci .
' enacted b* the kin^s most eicellcDt majcMj,
* bj and wiib the adtice and coasmt of t]ie
* lardt spirilml and temporal, aod comraoa* in
' Uui pre^nt parliament assembled. That tbe
' Acr, iniiiu eH, ' Ad Act for tbe Attainder of
' ' Tnoniai E^rl of StraSbrd, of Hieh TicaiOD,'
* and all aui everv Clause and Article, and
' tliinj; tiierciii coutained, being obcaii
' ' r bereijj repealed, rerokcd.
a away, bj ibe most detestable
' And to ihe end that ri''ht he dine ic
* iDernory of tlie (Jetvased EarlofStraBordalbre-
* Mid, be it iVirilxT eii:ictcd, Tliat all lecordt
' BDii proceeding of parliamcot, rtlaliiif: ti ibe
* tajd Attainder, be wIioUt cancdted and taken
* off the die. or otherwise defacEd and oblitfr-
' ated ; to tbe i'ltenC the same may not be Tisi-
* Uein afieT-a|es, or bmught into example, to
* li.e prejudice of any person t>hals<ievrr.
< Provided, Th^l Ibis Act sliall not eiieud to
' tbe future queitiiinin; of any person or pct-
* »ons, however concerned in tiiis business ; or
' who bad any blind in the lumulLs, or disorderly
* procaring Ibe act aiorwaid ; any thing herein
* cnntaineil to ibe coulrarj thereof notwitb-
' Nanding.'
A Copy of the P*ptB pnfted np at tlie comer
of the wnilofSir William Bninkanl'b boose,
in ihe Old Palace-yard, in Weitmiaster,
Monday May 3, 1G41.
« Tbe Nahfs of (be STii*rFnaDiaK3 posted.
^ I.LnrdDiuby; S. LunI ComjiEon; 3. Lord
Bnckbuist; 4. :Sir ttoben Halton ; 5.SirTbtr-
■nas Fan-.ti.iw; 6. Sir Edward Alfoni; 7. Sir
NicolaaSlaning; 8. SirThomsis Danby; 9. Sir
Gcon;e Wentwonh ; 10. Sir Peter We ntwnrih ;
11. Sir Freilericb Coiowallia; 13. Sir William
Camaby; 13. SirRkbardWinn ; 14. Sir Jnrris
Cliflon; 15. Sir Witliam Wiilirinrcon ; 16. Sir
WJliain Penoyman ; 17. Sir Patrick Curwcnt;
18. Sir Richard Lee; 19. Sir Henry ^ingsbj;
SO. Sir William Portman ; 21, Mr. Jarvi*
Hollis; S3. Mr. Sidney Godolphio; 93. Mr.
Cooke; 94. Mr. Coventry; 95. Mr. Benjamin
Weston ; 96. Mr. William Weston ; 97. Mr.
Selded ; 98. Mr. Alford : 39. Mr. lioyd ; 30.
tlr.Hcrben; SI. CnptaiuDigby; 33. Serjenni
Hyde ; 33. Mr. Tnvl.ir ; 3t. Mr. Griffith ; 05.
llr.ScBMeoi3fi.Mr.Bridsci>iaa;3T.Mr.Fct
tiplaa; 38. Dr. Tmncr; 39. Captain Ctm4a
Price; 40. Dr. Paiij.Ciiitian; 41. Mr. Araa-
del; 49. Mr. Newpoit; 43. Ur. UOlbome;
44. Mr. Noel: 45. Mr. Kirtm -, 46. Mr. Pol-
lard; «r. Mr. Price; 4S. Mr. TrersniaB ;
Mr. Jane; SO. Mr. EdgeaHnbe; SI.
Chicbeic^: 59. Ur. Mallert; 53. Mr. Porter;
51. Ur. Vlkc, Secret. E.'D.; 53. Mr. W»
The eHlowing Spe«cbei," said to be made hj
tbe Earl of SaaBonl. are taken fitMu tbe S
meis' Colleciion of Tract*.
Tbe SPEECH of Tbonm WiKYiraKTH. b«
Eari ofSTBatToaD, and Deputy of In-
land, in the Tower, lo ilv Lords befciKb
went Is Eiecuiioii, Soounen' Trao^ I
CalL roL S. p- 4.
"R^btboDODiablefandtberen, 70a an aia
come 10 con(ey me 10 my death, I am wiEaf
to die, which ii a thing no more than rfar W
prcdecesoora ha*e done, and a debt Cba ta* {*]
po^etily mnst in their due lime dii^t^ J
wbidi since it can be no way aToiried, it a^ < I
tbe leu to be feared ; (or that which is o» «J
mon to all, OD|(ht not to be intolerable to tni: H
it is ibe law of nainrc, ibe tribute of tfte irs^
« remedy from all worldly cares and tTOohle;
and to tbe tmly penitent, B perfect patk M
blessedness. And there is bnt one deal^
though sever*! ways unto it : mine is not m>-
lUraJ, but enfurced by the law and justice : it
bath been said that the laws m oclr iba
meanersort of people, but the miebtr are sbia
to wiibsiand tbem : it is not to widi me, for la
tbe law I submit mt self, and confess tbat I re-
ceiic nothing but justice: lor b« that poliiiclj
intenileth gMKl to a common weal, mrvr b«
called a just man, but he that ptsctiseth enbcr
for his own profit, or any other sinister end^
may he well tnmed a deliaqueot penoD ; nn-
tber is delay in punishment any priTilrge fbe
pardon. And moreorer, i ingenuously cunie*
with Cicero, That the death of tbe bad is tha
safety of the good that be alive.
" Let DO man tmst either in the favoer of
his prince, the frieniishi|i and consan|niiiity of
his peers, much lets in ha own wisdom and
knowledge, of which I ingeoDoosly confess I
have been toocouGdent; liinEs,aathey areaxn
before God, so they are Go£ befire men, and
* " There are (wo Spcccbet," sayi His. Ma-
caulay, " in Sommers's Collection of TtacC^
Siretendcd to have been composed by Strafl
ard, one spoken to some Lords who atiraded
bimin tbe Tower immediatelr before bis Exe-
cution, tlie otiier intended to be spoken at bi(
Death. They are full of contrition for his past
conduct, and the style so different from the ac-
count generally given of his hrhairiouT, ham,
his professions, from his advice to his fimjly,
and from his character, and the Btnwg preju-
dices he bad imlubed in die laller p«rt tf hii
life, that there iipMt raawB !• wi^Mt tb«c
witbcWMilj'.''
.Google
STATE TRIALS^ IACii&ili>L IMO.— >t»-^& TWoxh*.
this kioi
l5tS]
I ma* »Bj nitli a great man once in this king-
dom,' Had I Mriveil to obey mj God ns faith- |
■ Tully, aalsooght to honour my king diligentlj, '
• I had stood and noifallen.' Most bappT and
fortunate in that prince, nho is as much for hii
juitice feared, as for hi) goodness beloved :
for the greater thnt princes are in poner above
other, tbe more thev ought in virtue to excel
other ; and such is the royal sovereign nhom I
Ute served.
** For my peen, the carreipondeoce that I
tiad with (Mm during my prosperity, was to me
very delightful and pleasing, aud here tbev have
comiiusmted my ruin, I have plentifully loand,
'Who (Ibr the most generoug of them) I may
boldly say, ibou^ Ibey have detested the fact,
yet they nave pitied the penou delinquent ; the
, fine in tbeir loyally, tbe last in tlieir charity :
ingenuously confestiog, that never any subject,
or peer of my rank, had ever that help of coun-
•el, that benefit of time, or a more free and
legal trial than I have hod; in tbe like whereof,
none of my ptedecesson haib had so much fa-
vour ftam his prince, so much sufferance from
tbe people ; in which I comprehend the undei^
aianding commons, not tbe aiany-headed mon-
iter, muititurle ; but I have oSeuded, am seit-
tcnced, and must now Buffer.
" And for my too much confidence in my
■opposed wiidoin and knowledge, Uierein hove
been the must deceived : for lie is wise to him-
self, that knows by others bolts to correct his
own offences: to be trtity wise is to be secre-
taries to ourselves; for it is mere folly to re<
Teal our intimate thoughts to strangers : wis-
dom is the most precious gem with which the
■nind can be adorned, and learning the most
famous thing for which a man ought to be •
teemed, and Irua wisdom teacheth us to do wi
M to speak well : in the first I have failed, i
' the wisdom of man is foolishness with God.
" For kaowledge, it is a thing indifferent both
to good and evil, but the best knowledge is for
a man to know himself; he that doth so shall
esteem of hiioeelfVut little, for he cunsidereth
from whence lie came, and whereto he must
go, be regardeth not the vain pleasures of this
life, he eaalteth God, and strives to live in his
fear; but he that knoweth not himself, iawilful
in his own ways, unprofitable in bis life, lUlfur-
timate in his death, and so am I. But ibe
reason why 1 sought to attain unto it, was this .
I have read that he that kuoweth not thai
which he ought to know, is a brute beattamnngst
men ; he that knoweth more than he ougbi
know, is a man amnngst beasts : but be I
kooweCh all that m*^ be known, is a God
■monpst men. To this I much aapired, in thi
Imuch failed; ' Vanity of vanities ; all is hu
" I nave beard tbe people clamour end cry
out, saying that through my occasion tbe times
are bau, I nisb that when 1 am dead tbey may
prove better : most true it is, that there is at
' thjt time a great storm impending (God iii his
■uerc^ avert it.) And since it is my particular
loV Ilk* J«nab, to bt «ut into tbt Ma, I shall
[isaat
God'f
think my life wall spent, to appease
wrath, and satisfy the people's malice.
" O what is eloquence moie than air t
fashioned with an articulate and distinct sound,
'hen it is a special virtue to speak little and
well, and silence is oft the hett oratory ; for
fools in their dumbness may be accounted wise:
it hath power to make a guod matter seem bad,
and a bad cause apnear ^ood : but mine was to
improfitable,andlike tbe cypress trees, which
are great and Intl, but altogether without fruit.
" What is honour ! but the first step to dis-
quietness, and power is ttilt waited on by envv,
neither bath it any privilegeegainstinfamy. It
is lield to be the chief part of honour, for k
mantojoin tohisofhceand calling, courtesy and
affability, commiseration and pily: for tllt^^eby
he draweth to him with a kind of compulsion,
the hearts of the multitude. But that was tbe
least part of my study, which now makes me
call to mind, that the greater the persons are
in authority, the sooner they are catcht in any
delinquency, and their smallest crimes are
ihou{{ht to be capital, the smallest S|jot seem*
great in the finest lumen, and the least daw is'
soonest found in tbe richest diamond. But
high and noble spirits finding tberuselve*
wounded, gneve not so much at their own pain
and perplexity, as at the derision and scoffs of
their enemy : but for mine own part, ihi>u^ I
might have many in my life, I hope to find none
in my death.
" Amongst other things which pollute and
contaminate the minds of great spirits, there it
none more heinous tban ambition, which is seU
dom unaccompanied with avarice : such to
possess their ends, care not to violate the laws
of religion, and reason, and to break the bonds
of modesty and equity, with the nearest tyes of
consanguinity, and amity; of which as I have
been guilty, so I crave at God's hands forgive-
ness. It is a msiim in pbilosonhy, that am-
bitious men can be never good counsellors t»
princes; the desire of haviug more is comoioa
to great lords, and a desire of rule a great cause
of their min,
" My lords, I am now the hopele» precedent,
mav-I be to you all an happy example : for '
ambition devoureth gold, and drinketh Hood,
and climbeth soblgli oy other mens heads, that
at (he length in the fall it breaketh its onn
neck ; therefore it is belter to live in humble
content, than in high care and trouble : for
more precious iswant with honesty, than wcnlth
with infamy : for what are we but '^ere vapours,
which in a lereoe element ascend hi|b, and
upon an instant, like smoke, vanish into no-
thing ; or like ships without pilots, tost up and
down upon the seas by contrary winrls and
tempests. But the good husbandman thinks
better of those ears of corn, which bow down,
and grow crooked, than those which are straight
and upright, because he ii assured to find mure
-store uf grain in the one than in the other.
This all men know, yet of this, how few make
use : the defect whereof must be now my pain :
may my f ufiering preve 10 otben profit.
WSl) STATETRIALS, l« ChablbsI. leiO^TrMiiffUEatit^Sinifbrd. £1
id ixiuld no
" iFor whit linih now tUe ftvour of my
prince, tbc fiuniliarit; witli my pten, the volu-
bility ufs luiicue, tbe strength or my memory,
loy learning, or knimledgt, my li mour^, ur
tmicrt, my puHor, anil jiotcnc^v, ii.y riclics, nnd
treasure, (>iil tliise llie specinl jrilis, l.otli of
nature, mul furtunej viiM have all these pro-
Gttcd inef Bles-iiigi I ucLiiowleitjje, iliuusli by
Gori bestowed upr.D mnii, yit uut all nf tliciii
togelbiir upcin in-iiiy: yet by the divine pruii-
dence, the most ol' iliein met in me ; ••( wliich
bad I mude lii|ipy u»e I mi^lit still have Hciu-
rislied, wlio nuw itin furcerf inimaturrly to fall.
" 1 nriw omM wiiili (but llmc utiiiam is loo
late) that Gud <ti'h bis outHard E;ooihiefp9 lo-
' wards nia had io commixed his iiinnrd grace,
tlixt I bad clmseil ib« medium piith, neither ui-
cllniiigio ibe ri^lit hind, nor deviating to the
left ; but like Icarus with my waxen wings,
fearing by too low a fltglii to moisltn ihem wiih
the waves : I soared luo liigb, nnd too near the
•un, by which tliey being melted, I aiming at
the highest, am |.refi|jilated to the lowest : and
am made a wretched prey to (be waters: but I
who before built my buuse upon the sand, have
now settled my hopes upon the rock my Sa-
viour: by whose only merits myiioie trust is, that
whatuiever becomes of my body, yet in this
bosom my soul in:iy be iinctuaried.
" Nimrod would have built a tower to rcnch
op to Heaven, mid called it Bib^l ; but God
turned it to the coufution of langueget, and
dit«pation of tl>e people. Phnruoh kcut the
children of Isrnel in bundat;^, and after Iiaring
freed them, in his great pride would Iiave made
them his prey ; but God gave them a dry and
miraculous pnssaEe, and Pharmih and b<9 host.
■ watry aepiilchre. Belsbatiar feasted his
princes and pr>»,tilu'es, who drunk healths in
the vessels taken from the Temple, but the
hand of Ood writ upon ihe wall, Mene. Tekel.
Phoras, end that iiit:ht bet'ore morning was both
hiskingdomand lile taken from him: thus God
letsc
leu g.. I
while in their
> tliei
1 de-
auii destriiciioti, never suffering ihcm to effect
their desired purpuses : ttieretbre let nnne pre-
sume upon bis power, glory In his grcatni^sti, or
be loo conlideut in his riches: the-e things
were written for our instruction, of which the
living may make use, the dying cannot ; but
wit and unfruitful wisdom are i!»e next neigh-
bour) to folly.
" There can be no greater vanity in the wniid,
than to esteem the world, wliicii re^ardelh no
■nan ; and tn make slight accoiiiii of God, who
greatly rpspecieth all m<a ; and ih< re can be
no greater ^>lly in man, than by much travuil tu
increase bis it^mils, anil pumper his Imdy, and
in the interim with vain detiglits and pleasures,
tn lo>e his soul. It >s u gre.it folly in any man
to nttempi a bad beeiitniiig, in liope of good i argument, but
endinc; and <o niake that pri>|>er Io »ne, uhich I tliis circu^ustan
was bef'ire common to nil, is mere indiacri tion, from a dying m
mnd theb^iiininii of discoid, which I positively " If I should tale upon me to aiAe s»l>
wish may end in this my puuislimeni. lion ofall the particulars of toy arrnignEnenluid
*'0 huwtmalla proportion of earth will cod- attainder, it would bat loo muck ptrnfiMjiwr
ail
tain my body, when my lugh
confined within ibe apaciuus roi<i|>as3
kmgdoms? But my hour draweib on
conclude.wilh the PsulnH^ not ainiiaf
one man in particular, liut speikintc f<
general 1 ' llow lung nill ye Judges be
' rupied? bow Ibng will you cease to give
'judgment P &c. Blested is tlie man tliat i
•notHalk in the council ofibe wU;ked,
' siandin the way of sinners, nor sit in the
' of the scornful, therefore they shall not st
' in the Judgment, no
' of the righteous, (it:.
The SPEF-CH of Thomas Eari ofStrafFord,
tended to be spoken on the ScaBhld the d
bewasbrheaded; (May 13,1641)but bei
interrupted, be delivered it lo his brolb<
Sir George Wentwonh, from whose orij^r
Copy, under the Earl's own hand, this
worn for word transcribed, ^Somcaei
Tracif, 1 Coll. vol. 4. p. 449.]
" People of my natite country (t wish a
own or your chnnty, bad made me fit to ca
JOB friend,),
" It should appear by your concourse (tn
gazing aspects, that I am now the only prodigi
(Ids meteor, towards which ysu direct you
wondering eyes. Meteors are the iDthllibh
antecedents of trflgicol event*, and do commonlj
level their malevolent operation upon some re-
markable perMn. At this present time, I am
becoMiemy own prodigy, and the cnused iii£u-
ence will appear in my (too sudden) excculiun :
And this fear is only left nie. The consequence
will produce a greater effuiiou than mtoe. I
would to God, my blood wouM cure your sad
liearts of all their grievances (though e\erj drop
thereof were a soul on which a life depended) I
should render it with as much alacrity as some
(nay, the most) of you bare come lo triuinpb ia
my fatal exiirpatiou.
" In reeard I have been of you (my native
country, whose wisdom and justirlr, in respect of
the generality of it, is no way que^ tion ablcj rated
to tills untimely end, 1 have not nue syllable to
say in justification of myself, or thiise actions for
which I suffer ; onlji, in excuse of both, give me
leave to say, my too much zeal to do my master
service, marte me abuse his regal Duthurity;
and bowsoeier I have been one most intor-
tunatc, yet, at all times, a favourite ia the pro-
secution, of my pUces and offices ; and yet (is
I shall answer before the dreadful Iiibuoaj,
wliereunin your just anger hath befitre nnture
doomed me) n>y intents were fairer than at
actions : But God knows, the over-greatnrss of
my spiriii severity, my government, the niicft-
cr'aft nf authority, unit flattery of muliitudei t:>
sharpen il, are but ill interpreters of my ioteo-
ti'ins; which that you may believe, 1 hsvesa
' " ' iprotestation, "hicti halh but
toGOnlinn it, That it prucecih
:,.„;.„ Google
I5M]
STATE TRIALS, 10 Cbarli* I. I6W.— >r High Trvawa. [153*
known, written with gr«at temper, good khbc.
'lon|;ing «pect«lion uf my shamefal de»tli :
Besides, it wiiulil be need 1ms, in re&jMCtl should
but SKj oier again whnt I siiid before the par-
tinment, (and perhaps be as little believed)
th»ui;h the terms on which I then answered, be
far diiTcreni from m; attestation now, (that
being helbre my condemnation, and this alter
it.) Besides there were niullitnde* to catch it^
lui fast ns I uttered ir, (and doubtless you ^all
liavc ii upon every siall-buob post) fur I have
hecu, und whilst 1 breathe am, the pestilence
which raacs through your mindf, your estnles,
and trades ; and you wilt be ready to nrad ttie
bilU ot your own losses, though <he disease thai
brought the destruction be removed.
" Having nothing in this world hut a little
breath, »luch within a few minutes is to be ex-
■ pired, I should not use it lo this purpose, but
: that cuitom upon ihess directions prescribes
: my warrant fur it: And further, that I might
Le an example to great persons, that tiiey may
tnow, the tavuur of a great king is not equiva-
' lent to the hreath of nations; and that it is a
thousand times better and more ooble (or a
ilun m play ivitb a glove, than tear it; nor is
it proper fur a dove u> soar with eugle's wiup;
and the rather, because (be [leceisity of the
times requires that I should die, only for ei-
■■ He ihitgavc conscience to yuu all,(that are
willing to accept it) my royal master, did in his
own conscierice once declare me guiltless of
time facts, fur which this death is come upon
nie : But Heaven that hath made your general
clamours the otgan oF my destiny, thou|^h I me
not woi'tliy to enjoy this life I have abused ;
nnd from your voices, as from the lips of ora-
cles, X have received my wnful doom, nherein
my clianty (at tlii> hour) ciumot, nor nill ac-
cnse you of the least injustice: but still I trench
upon your patience, nnd linger in the tlnug you
ciune to look lor, my dejlh.
" A liitle, little more, und I ha»-e done. For i
testimony of my faith and religion, be pleased '
to undfr->t>iiid, that 1 hnve proft-ased and do
(now) die In the true Pniteslant relii^ion. nut in
any points deviating in my bt-lief from the
fimdameiitjl grounds of the true Pintcsiantieli-
)>ion, profcsstd, practised, maintained, and au-
tliurlzrd by tlie church of Etigiaml. 1 would
sny mure of this, but Clint I desire my prlvnie
•jaculations mny l>e uiy lust nieditntlons, only,
because I know ilierc is nut any onu of you, at
oddswItJi my soul orperson (tliou^h wiili niy
facts and vices ) I c^innotduutt, butyuurhumuni-
ly iiiid charitable inciinatKins will a'lliirU me yiiur
de\"U[ (iinV' rs, for my Saviour's sweet mercy.
Giiod people pray for me, pniy for me, even
for my eterii.<l Saviuur's sake. Into whuve botom
I render my wuful and afilicted soul : Sweet
Jesus, my Itedi'cmer. (tlie Kedeemer even of
me, a xuful and dejected sniuer) receive inio
thy arms my spirit."
The Account given hy May, (of whose work
Warburton very justly tliui write* to llurd :
" It is «■ Aitraordinarf peftiiraiance. Utile
and spirit, has the qualities of a regular <
Ksition, which neither Ludlow nor Wliitlock
vc: It is written with much judgment, pe-
neiratton, manliness, and spirit, and with k
candour tliat will greatly increase your esteem,
when you know he wrote by oriter of his mas^
ters theParhamenti" Letiei^, June 30, IT53,
August lOili, 1753 :) of llie E*ri>ceedinps against
I^rd Straflbrd, and oE some circumstances con-
ne(;ted with those Proceedings, are biKhlyin-
t«restitig. See May's" History of the Parlia-
liament," b. 1, p.' 87 to 99. — For the Pro-
ceedings on the alleged Plot, for the Escdpe of
the Eatl of Siraflbrd, the Seduction of the
Army, and bringing in the French, see the
Historians, and 0 Itushw. also 2 Colib. Pari.
Hist. The following Evidenae is (he chief of
what relates lo Siratl'ord's Escape:
The Houseof Commons having been alarmed
witli the apprehensions of some Phils or De-
signs oti foot, and having appointed ■ Com-
mittee to inquire into the same, they on tha
Mb of Mav made their Ueport to ibe house.
That this Plot coniisieth oi' three Heads : the
lirst was, the Design upon the Tower. Tha
second, To etiga|e the Army. The tliird. To
bring in foreign hirces. Fur the Tuwer, it ap-
peared to he thus : captain Billii^y being ex-
amined u|)Oii ualh, coiilc>sed, That be was ac-
quainted with sir John Suckling : That tlie said
sir John Intely offered htm emph>yineHt in one
of tlie king's ships then at Portsmouth ; after-
wards, employnient fur Portugal : tliat this De-
ponent having notice to meet at the privy lodg-
ings lit White-hall, did there receive orders to
get 100 men to serve in the Tower under him ;
and if lie did fail, he should answer it wiih hia
life. And afterwards meeting nith sir John
Sucklini:, and acntiamting him ihertwith, he
told him he would furnish him with the said
number. Sir William Beifo'e, Lieutmant of
tlie Tower, being examined, snid, Thai he had
cummund to receive capt. Billingsly, with 100
men, into the Tower, wiio should be under hii
command : Thai the F^rl of SuaHurd at that
time, etposiulating with liim about his Escape,
told him, He would attempt iiniiiing in that
kind wiiliout Ills priiity; and that he should
have the king'i Warrant for his indemnity ;
and tliat the Warrant thould be to command
him lo remove the Earl uf Siraffbrd, from the
Touer to some utlier Castle; and he would
then take his opportunity to escape : That the
Lieutenant of tlie Touernul giving any com-
plying Answtr ihereunio, tlie said EnrI sent
again to increai him to come to him, and would
hate persuaded him to let him make an escape;
sayini;, ' Without your cuncurrenre it cannot
■ be done ; and it yiiu will cuiiS' ut then-untn, I
' will niake you present puynienl of Si 0001. ;
' besides, y<iu shall luive a good marriage fnr
'your HID.' To which the Lieutenani uf ihe
Tower replied, • lie was so far from concurring
' tJierein, that lie was nut lobefarluer moved in
' such a thing.' Tims much the UeuteDint of
the Tower ddivered upon his OalJi.
]&»] STATETRUIS,I8Cbau.»I. 1S40.— TKot^iAe&rli^ar^oni. [liM
As fnr the Deiigni from bejond the Seu, the
Commitiee did mile Uepuit to the huusr,
That it wns cleantd imin them. That the pt-
vrrniir of Calaii hnd eiaminxl lome Engliih-
nen. whether the orl of ScraSonl's bead wai
cut iff; kiid tbii irai in point of time, the 1st
of May, accordinf; to the Engliuli stile; and
■ir Pliilip Cartniighl, giivernor of Ouenisej,
wrote Le'teraalio, which came in gteat hatie,
ThHt be uiidereroiid [he Freni^h hnd a detiga
upon that i&lsFid, oriomc part of EogUnd. It
alio ii))pt'nred to ihe Coniiiiitiee, by dlren of
the Lfttrrs, which were Opened coming; from
bevond sen, that tliej expected the earl of
fitraffurd ihtre. It oUu appeared by the
• » Mr. TsTlor, burgcM for Windsor, was
broiiEht upoo his knees in tbe Uouie of Com-
maat, for i>p««kii)g tbe iblfowing Wonit, in dia-
minstioa of Hra. Nattftliat lb* Garl of Strat
ford'* eicape was projected.*
parBKcmeDt of the whole house, about tbe Ead
of Strafford's death, viz. ' Thej bad camaiiEted
' iDiirder with the sword of justice; and thai
' he would not for a world bave ao much blood
' lie on his conscience, kg did on ibeira for that
' letilence :' wtiich Words being proved against
him b]>iheiiiBjorofWinduir(towfaoiii bespoks
it) aad some others, he was expelled tbe bouse,
and voted iuospable of ever beinga Parliamenl-
man ; jcommitted to tbe Tower during plea>
inre ; to be carried down to Windsor, ibere It
make recantntiuo for (bose Words, and to re-
turn back to do the same at the hv ; and it
was ordered that a writ should preaently iwua
out for a new elrclioa in liis rDom.'* 8 CobU
Pari Uiit. 3U,
IWD OF VOL. m.
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