He said this was a main point: and that whatever the king's power was by the common law, yet was it qualified by acts of parl. And no man will deny but the king may limit himself by acts of parl.--He cited 9 Ed. 3. C. 4. 3 Hen. 5. C. 1. that the money must be of weight sterling; ergo, it must now be of the lay and fineness of Sterling. In another statute,' de dimissione denariorum,' it is required the coin should be de legali metallo; ergo, not illegiti mate. Why must the king have the mines of gold in my land, but for the use of his mint and coining? He cited also a law of King Edgar, C. 8. aud of Canutus, C. 8. that no mo that gentleman had objected, That the commons did think they had gained the cause, because the king's council had yielded the statutes to be in force: Alas! saith he, we do not labour for victory but for truth; convince our understandings by better reasons, and the cause shall be yours.-That Mr. Serjeant understood per legem terræ, many laws in England, Martial, Admiral, Ecclesiastical, and that 9 Ed. 3. called, Merchant-Law; to this Mr. Littleton replied, with some acrimony and a challenge to any man living, to shew, that lex terræ should be spoken of any but the common law, in any law-book, statutes, or antient records and so closed up his disney should be current but of gold and silver. course." a And for Pardons; they are also limited, in wil"Sir Edward Coke spake next. • As,' ful murder; as he proved out of the 4 and 25 said he, the centre of the greatest circle is Ed. 3. And this he said by the way. Now his but a little prick, so the matter ever lies in a part was short; he had before expressed what little room; but weighty businesses are spun books and warrants they had for their tenet. out to a high length. This he said, was more If he be a little more earnest than seems fitweighty than difficult: his part was little; he ting, he craves your lordships pardon; it conwould run over Mr. Attorney's Reasons briefly: cerns him near. He takes occasion here to and, said he,summa sequar vestigia rerum.' say (under reformation) his reasons were not This tenet of theirs was expressed shortly and answered, or not fully. He touched upon his significantly it was a wonder for him to hear former reason from imprisonment (see p. 266); the Liberty of the Subject should be thought that it is a badge of a villain to be imprisoned incompatible with the regality of the king; for without cause; that this and taller luy haut nihil tam proprium est imperii, quam legibus & bas sont propria quarto modo' to villains: rivere,' saith Bracton. Nay further, Attri- this he presents with all reverence; for me. buit rex legi quod lex ei; dominium enim & said he, speak for the future times only: our imperium exercere, sine lege, non potest.'-king is good, and the council most gracious; First he, said, Mr. Attorney seemed to inti- but non nobis nati sumus; it is for our pos nate, that, in this speciale mandatum, a cause terity that we desire to provide, rather than for should be conceived to blind the judges, when ourselves, that they be not in worse case than other matter was intended. He had heard in-villains; for to be imprisoned without cause deed of that sentence, Qui nescit dissimulare, shewn, is to be imprisoned without cause at nescit regnare;' but he held it no good divinity; all. De non apparentibus & non existen for David, in the 119th Psalm, desires tibus, cadem est ratio.'-He agreed with Mr. sound heart; that is, a heart without dissimu- Attorney in the enumeration of all the kinds lation: : ergo no king should covet to dissemble of Habeas Corpus; and if they two were alone, in his mandates. Then for that case of re- he did not doubt but they should agree in all bellion, in Ireland, he said, it was bona terra, things. Only, he said, that for a freeman to mala gens. But, hè said, O'Donnel's children be tenant at will for his liberty, he could ne lost nothing by the bargain; pèrüissent nisi pe- ver agree to it; it was a tenure that could no riisset; for they were better brought up here be found in all Littleton.-Then he also touchin the true religion, instead of popery. Be-ed his former argument from universality; sides, they have lost nothing, for their blood was tainted. It was charity to keep them. A strange proviso, that a thing happening once in 100 years should overthrow and narr so many statutes in continual use, against the old rule, Ad ea quæ frequentius accidunt, jura adaptantur! And he never heard of such an objection. In the next Reason, he said, Mr. Attorney came close to him, and said he was glad he had awaked him. That a king is trusted in greater things, as war, money, pardons, denisons; ergo, &c. Negatur, said he, for the liberty of the person, is more than all these; it is maximum omnium humanerum bonorum, the very sovereign of all human blessings: yea, but the king may make money of brass, (saith Dionysius Halicarnasseus) or other base metal, as he heard queen Eliz. say, that her father, king Hen. 8. did hope to live so long, till he saw his face in bruss; i. e. in brass money. that the lords, the bishops, and all are jumb led and involved in this universality. Law doth privilege noblemen from arrests: this new doctrine, like the little god Terminus, yields to none. Nay, the judges themselves, when they should st on the Bench, must be walking towards the Tow er. Then he fell to a protestation, that he intended no prejudice at all to the king for matters of state; for the honourable must be maintained in honour, or this common-wealth could not subsist; but the question was, Whether tiệ ought not to express the cause? He repeated again Plowden, 4 Eliz. pl. 236. The commen law hath so admeasured the king's prerogative, as he cannot prejudice any man in his inherit ance. He cited also 42 Ed. 3. c. 1. to prove. that all judgments given against Magna Charta are void.-Next he was pleased to say, He was not so well dealt with in one particular as be expected: For a student's report should unt have been cited against him. He desired Mr. Attorney to remember, he had not veritatem ex cathedre, or infallibility of spirit; that was for the Pope. He said, he misgrounded his opinion upon 33 Hen. 6. which being nothing to the pur- Į pose, he is now assured his opinion is as little to the purpose. Here he took notice of an objection, What, can you arrest none without a process or original writ? Why, the suspected fellow will run away? To which he answered, That process signifies the whole proceeding and cited a rule in law, Quando lex aliquod concedit, concedere videtur id, sine quo res ipsa esse non potest.' The law gives process and indictment; ergo, gives all means conducing to the indictment. And this answers all Mr. Attorney's cases of watchmen and constables."And here paused sir Ed. Coke. carcere. "Mr. Noy offered Answers to the Inconveniences presented by Mr. Attorney. 1. he said, where it was objected, That it was inconvenient to express the cause, for fear of divulging arcana imperii; for hereby all may be discovered, and abundance of traitors never brought to justice: to this that learned man answered, That the judges, by intention of the law, are the king's council, and the secret may safely be committed to all, or some of them who might advise whether they will bail him: and here is no danger to king or subject; for their oath will not permit them to reveal the secrets of the king; nor yet to detain the subject long, if, by law, he be bailable. 2. For that objection of the children of O'Donnel, he laid this for a ground, that the king can do no wrong: but, in cases of extreme necessity, we must yield sometimes for the preservation of the whole state: ubi unius dampnum utilitate publica rependitur.' He said there was no trusting children of traitors: no wrong done, if they did tabescere or marcescere in It is the same case of necessity, as when, to avoid the burning of a town, we are forced to pull down an honest man's house; or to compel a man to dwell by the sea side for defence or fortification. Yet the king cannot do wrong: for potentia juris est non injuria: ergo, the act the king doth, though to the wrong of another, is by law made no wrong: as if he commands one to be kept in prison, yet the king himself is not responsible for this wrong. He quoted a book 42 Assiz. c. 5. 3. For the instance made of Westin. 1, he said, "There was a great difference between these three; 1. Mainprize; which is under a pain; 2. Bail; which is body for body, and no pain; for the party is ever in court to be declared against; 3. Replevin: which is as much as both; yet it is neither by surety nor by bail; for if replevied, then he is never in court. By this statute, saith Mr. Attorney, a man cannot be replevied; ergo, not bailed: non sequitur." 4. Where it is said, That bail is ex gratia, he answered, That if the prisoner comes by II. Corpus, then it is not ex gratia; yet the court may advise: but mark the words, ad subjiciendum & recipiendum prout ruria con sideraverit.' Now it is impossible that the judges do so, if no cause be expressed: for it they know not the cause, he may bring the 1st, 2nd, 3rd, and 4th II. Corpus, and so ad infinitum, till he find himself a perpetual prisoner: so that no cause expressed is worse for the man, than the greatest cause or villainy that can be imagined."-And thus far proceeded that learned gentleman. "Mr. Glanville said, 'That, by favour of the commons, he had liberty to speak, if opportunity were offered: he will therefore apply his Answer to one particular of Mr. Attorney; who assigned to the king 4 great trusts; 1. Of War; 2. Coin; 3. Denisens; and, 4. Pardons. It is assented unto, that the king is trusted with all these 4 legal prerogatives: but the argument followeth not, That therefore he shall imprison without cause shewn. Again, the king is trusted in many prerogatives; ergo, saith Mr. Attorney, in this: Non sequitur; quod non est sufficiens enumeratio partium.' He said he would answer Mr. Attorney's 4 great trusts with two rules; whereof the first should wipe of the 1st and 2nd; and the other, the 3rd and 4th. The 1st rule is this: there is no fear of trusting the king with any thing; but the fear of ill council against the subject: the king may easily there be trusted, where ill counsel doth equally engage both the king and subject; as it doth both in matters of war and coin. If he miscarry in the wars, it is not always plectuntur achivi; but he smarts equally with the people. If he abase the coin, he loseth more than any of the people; ergo, he may safely be trusted with those flowers of the crown, wars and coinage. The 2nd rule he gave was this: when the king is trusted to confer grace, it is one thing; but when he is trusted to infer an injury, it is another matter. former power cannot, by miscounselling, be brought to prejudice another; the latter may. If the king pardon a guilty man, he punisheth not a good subject. If he denizen never so many strangers, it is but damnum sine injuria. We allow him a liberty to confer grace; but not, without cause, to infer punishments. And indeed he cannot do injury, for if he command to do a man wrong, the command is void, et actor fit author, and the actor becomes the wrong doer; and therefore the king may safely be trusted with war, coins, denizens, and pardons; but not with a power to imprison, without expression of cause or limitation of time; because, as the poet tells us, libertas potior auro,”--And thus far proceeded Mr. Glanville, The "Next Mr. Selden said, Your lordships had heard all or most of the arguments brought, and answered fully: that there was hardly any thing objected that had the least colour. This he speaks not out of any overweening confidence as a counsellor; but desires your lordships to recall the several states and conditions of those you now hear. The king's counsel speak for the king's advantage, as glossers and parties; but the condition of the other gentlemen is this, that as they are members of the Ye house of commons, and so bound to speak truth, and by a strict oath, to maintain the king's rights and pre-eminence: and therefore your lordships had good cause to put a value upon them, and what they say accordingly. Here he fell upon the resolution of the judges, in 34 Eliz.; which, he said, stuck with many, and was pressed by Mr. Attorney, as drawing on his side; and was also so pressed at the King'sbench. It is true, a fuller perspicuity might by care have been delivered therein; yet what is in it, he said, concludes for the Resolution of the commons. He instanced in one point: they may not be delivered by any court without trial at law; now, no trial where no cause: but in that case the matter is unintelligible. Quis & quare, are two questions. It is one question who, but another why they are committed. Then he said, there was indeed a sort of reply in that of 13 Jac. Russel's casc: but that it was not Russel's case, but an omnigatheruin of 3 or 4 cases full of mistakes. It mentions Harcourt, 40 Eliz. to have been bailed by command of the queen or council, and not a word thereof was true: it speaks of a letter filed in the crown office; but no letter was ever there filed: it cites the case of 34 and 36 Eliz. In one word, Oud, for there was nothing found in all this imaginary report. As for the Journals of the lower house, in 18 Jac. they are good records, so far as they are Journals of Orders and Resolutions: hut as for things catched at by clerks, out of the mouths of men, they are declared long since to be of no authority; and the house doth generally conceive, that this particular is a mistake of the clerk"--And here ended Mr. Selden. "Sir Ed. Coke put your lordships in mind, that you had the greatest cause in hand, that ever came into the Hall of Westminster, or, indeed, into any parliament. My lords, said he, your noble ancestors, whose places you hold, were parties to Magna Charta; so called for weight and substance, for, otherwise, many other statutes are greater in bulk; as Alexander, a little man, called magnus for his courage. And you, my lords, the bishops, said he, are commanded fulminare, to thunder out your anathemas against all infringers of Magna Charta. (Sententia lata super Chartas). And all the worthy judges that deserved their places, have ever had Magna Charta in great estimation. Now, as Justice hath a sword, so it hath a balance, Ponderat hæc causas, percutit ille reos.' Put together, my noble lords, in one balance 7 acts of parliament, records, precedents, reasons, all that we have spoken, and that of 18 Edw. 3. whereto I found no answer; and, in God's name, put into the other balance what Mr. Attorney hath said, his wit, learning, and great endowments of nature; and, if he be weightier, let him have it; if not, then conclude with us. You are involved in the same danger with us; and therefore we desire you, in the name, of the commons of England, represented in 115, that we might have cause to give God and the king thanks for your justice, in complying with us."—And here rested sir E. Coke. "Mr. Attorney summed up the argument. Ile observed, That many things and much matter had been uttered by the gentlemen of the commons: that to run over it all would spend much time; he would therefore observe some principal things wherein he and they did not differ. 1. It was agreed the king may commit. 2. It was agreed the statutes were in force. But how this lex terræ is to be expounded, is the main apple of contention. If the cause be sufficiently expressed generally, then mandatum domini regis is a sufficient expres sion. To reduce this to the judicature of the judges, is to presuppose, not state the question, That the king hath an unlimited power, is not the state of the question: for then the king might imprison perpetually, be the cause right or wrong. Whether there be that necessity of expressing the cause, upon commitment or no, is a great part of the controversy. It was granted by one, that there may be a cause of an extraordinary nature, as O'Donnel's; but the rule of the house of commons is a new mathematical line, that admits of no latitude at all. To say subjects may be perpetually imprisoned, or without any cause, is no intention of the king. On the contrary side, to tie the king's command to the rule of his judges, and leave no latitude or breadth at all to tum him in, is a variation wherein your lordships wisdom must appear, to smooth and facilitate the roughness of the passage. He recommended all to your wisdoms to weigh (as sir Ed. Coke desired) in an equal balance, reasons, prece dents, and resolutions of judges. This man festo of the commons takes the matter upon great advantage, as resolved by that body; but this is our comfort that are counsel for the king, that you are all now counsellors of the king and kingdom. If all can be so ordered, as you shall not destroy the rights of the king, and shall favour the liberties of the subject as the cause requires, Mr. Attorney hath the atmost of his desires."-And here he ended. "Mr. Noye hereto rejoined, • The king might commit for a cause, not without: this was agreed on both sides. But Mr. Attorney said, He was not bound to express the cause. To which it was replied, That the judges are to judge between him and his people: ergo, 16 cause, no judgment; and therefore the king ought not to commit for any time; no, not an hour, without a cause; and that there was no cause. Sericant Ashley ordered into Custody, for Words spoken at the Conference on the Iberty of the Subject.] Thus ended this Jour Report. When Mr. Serjeant Ashley had done speaking at the conference, in which he was of counsel for the crown, the lord president told the committee of the commons, That the serjcant had no authority, from their lordships, as to what he advanced in his argument, (see p. 315.) But the matter rested not here; for the doctrine advanced by this gentleman seemed so unconstitutional, that he was ordered into custody. And, on the 21st of April, a Petition of Mr. Serjeant Ashley was read to the lords, expressing his sorrow for the displeasure he had given their lordships, and humbly desiring to be admitted the recognition enjoined hin. Hereupon he was ordered to be brought to the bar; where, kneeling, he made his submission, and humbly asked forgiveness for his fault, and was discharged out of custody. them from future fears, That, in all cases, within the cognizance of the common law concerning the Liberty of the Subject, his maj. would proceed according to the common law of this land, and according to the laws established in this kingdom, and in no other manner or wise. V. And as touching his majesty's royal prerogative, incident to his sovereignty, and intrusted him from God, ad communem totius populi salutem, et non ad destructionem,' That his maj, would resolve not to use or divert the same, to the prejudice of any of his loyal peo Afterwards the lords went into a committee on the Liberty of the Subject. The house be-ple in the Property of their goods, or Liberty ing resumed, it was agreed, as a general conclusion, That a commitment by the king, or his council, is good in point of authority; and, if the cause of commitment be just, then it is good for the matter. But these two concessions shall no way prejudice the king's authority, nor yet the Propositions of the house of commons.' of their persons; and in case, for the security of his majesty's royal person, the common safety of his people, or the peaceable government of his kingdom, his maj. shall find just cause, for reason of state, to imprison or restrain any man's person, his maj. would graciqusly declare,That, within a convenient time, he shall and will express the cause of the cominitment or restraint, either general or special; and upon a cause so expressed, will leave him immediately to be tried acccording to the common justice of the kingdom." A further Conference relating to the Liberty of the Subject.] April 23. The lords agreed to have another conference with the other house on this subject; That they concur with the commons in their desire of all just libertics The Abp. of Canterbury's Speech at the Conto the subject, but they do find it fit and ue-ference.] The conference being agreed on, cessary also to preserve the just prerogative of the abp. of Canterbury began it with this short the king; and, to that end, that both houses speech.might agree therein, this conference was desired.' This proposal was accepted by the commons, and a conference began which lasted two days. On the 25th, the abp. of Canterbury, from the cominittee of lords appointed for this business, reported, That they agreed on a further conference with the cominons, in which they intended to offer some Propositions to them, which they had liberty to alter, add, or diminish as they thought proper: to shew them that the lords were neither out of love with their Propositions, nor in love with their own.' The Lords Propositions thereupon,] The said Propositions were then read in these words, viz. "I. That his maj. would be pleased graciously to declare, That the good old law called Magna Charta, and the six statutes, conceived to be declarations or explanations of that law, do still stand in force to all intents and purposes. II. That his maj. would be pleased graciously to declare, That, acccording to Magna Charta, and the statutes aforenamed, as also according to the most antient customs and laws of this land, every free subject of this realm hath a fundamental Property in his goods, and a fundamental Liberty of his person. III. That his maj. would be pleased graciously to declare, That it is his royal pleasure to ratify and confirin unto all and every his loyal and faithful subjects, all their several, antient, just liberties, privileges, and rights, in as ample and benetical manner, to all intents and purposes, as their ancestors did enjoy the same under the best of his majesty's most noble progenitors. IV. That his maj, would be further pleased, graciously, to declare, for the good content quent of his loyal subjects, and for the securing "Gentlemen of the house of commons; The service of the king and safety of the kingdom, do call upon my lords to give all convenient expedition, to dispatch some of the great and weighty businesses that are before us. For the better effecting whereof my lords have thought fit to let you know, that they do, in general, agree with you; and doubt not but you will agree with us, to the best of your powers, to maintain and support the fundamental laws of the kingdom, and the fundamental Liberties of the Subject: for the particulars, which may hereafter fall into debate, they have given me in charge to let you know, that what hath been presented by you unto their lordships, they have laid nothing of it by; they are not out of love with any thing that you have tendered unto them; they have voted nothing, neither are they in love with any thing proceeding from themselves: for that which we shall say and propose, is out of intendment to invite you to a mutual and free conference; that you with confidence may come to us, and we with confidence may speak with you; so that we may come to a conclusion of those things which we both unanimously desire. We have resolved of nothing, designed nothing, nor determined nothing; but desire to take you with us, praying help from you, as you have done from us. My lords have thought of some Propositions, which they have ordered to be read here, and then left with you in writing; that if it seem good to you, we may uniformly concur for the substance; and, if you differ, that you would be pleased to put out, add, alter, or diminish, as you shall think fit; that so we may come the better to this, end, which we do both so desirously embrace.” The foregoing Propositions were then read to the commons, and afterwards the abp. told them, what had been before agreed on about adding or diminishing of them; to which, one of the committee, Sir Dudley Diggs made this reply; "My Lords, It hath pleased God, many ways, to bless the knights, citizens, and burgesses, now assembled in parliament, with great comfort and strong hopes, that this will prove as happy a parliament as ever was in England. And in their consultations for the service of his maj. and the safety of this kingdom, these special comforts and strong hopes have risen from the continued good respect which your lordships so nobly, from time to time, have been pleased to shew unto them; particularly at this present, in your so honourable professions to agree with them in general, and desiring to maintain and support the fundamental laws and liberties of England. The commons have commanded me, in like sort, to assure your lordships they have been, are, and will be, as ready to propugn the just prerogative of his maj.; of which, in all their arguments, searches of records, and resolutions, they have been most careful, according to that which formerly was, and now again is, protested by them. Another noble argument of your honourable disposition towards them is expressed in this; That you are pleased to expect no present Answer from them, who are, as your lordships in your great wisdoms no doubt have considered, a great body that must advise upon all new propositions; and resolve upon them, before they can give answer, according to the ancient order of their house. But, it is manifest, in general (God be thanked for it) there is a great concurrence of affection to the same end in both houses; and such good harmony, that I intreat your lordships leave to borrow a comparison from nature, or natural philosophy: as two lutes, well strung and tuned, brought together; if one be played on, little straws or sticks will stir upon the other, though it lye still; so though we have no power to reply, yet these things said and propounded cannot but work in our hearts; and we will faithfully report these passages to our house, from whence, in due time, we hope your lordships shall receive a contentful answer."However, the commons were not satisfied with these Propositions, which were conceived to choak the Petition of Right, then under cousideration; but demurred upon them. The King's Speech by the Lord Keeper, desiring the Parliament to rely on his Royal Word for their Liberties.] This great affair stood thus, between the two houses, till April 28th, when the king came to the house of lords, and, sending for the Speaker, with the commons to attend him, he said, "My lords, I have given commandment to my lord-keeper to speak somewhat unto you in my name, trusting to his voice rather than my own." The LordKeeper, having first conferred with his majesty, said: 46 My lords, and ye the lights, citizens, and burgesses of the house of commons; Ye cannot but remember the great and important affairs, concerning the safety both of state and religion, declared first from his majesty's own mouth, to be the causes of the assembling of this parliament: the sense whereof, as it doth daily increase with his maj. so it ought to de, and his maj. doubts not, but it doth, with you; since the danger increaseth every day, both by effluxion of time, and preparations of the enemy.-Yet his maj. doth well weigh, that this expence of time hath been occasioned by the Debate, which hath arisen in both houses, touching the Liberty of the Subject, in which, as his maj. takes in good part the purpose and intent of the houses, so clearly and frequently professed, that they would not dininish or blemish his just prerogative; so he presumes, that ye will all confess it a point of extraor dinary grace and justice in him, to suffer it to rest so long in dispute without interruption. But now his maj. considering the length of time which it hath already taken, and fearing nothing so much as any future loss of that whereof every hour and minute is so precious; and foreseeing that the ordinary way of debate, though never so carefully husbanded, must, in regard of the forms of both houses, necessarily take more time than the affairs of Christendom can permit; his majesty, out of his great aud princely care, hath thought of this expedient to shorten the business, by declaring the clearness of his own heart and intention: and there fore hath commanded me to let you know, That he holdeth the statute of Magna Charta, and the other six statutes insisted upon for the subjects' liberty, to be all in force; and assures you, that he will maintain all his subjects in the just freedom of their persons, and safety of their estates; and that he will govern ac cording to the laws and statutes of this realm; and that you shall find as much security in his majesty's Royal Word and Promise, as in the strength of any law ye can make; so that bereafter ye shall never have cause to complain.The conclusion is, That his maj. praveth God, who hath hitherto blessed this kingdom, and put it into his heart to come to you this day, to make the success happy both to king and people; and therefore he desires, that no doubt or distrust may possess any man, but that ye will all proceed unanimously to his business." Debate in the Commons on the King's Speech.] This being spoken, his maj. departed, and the lord-keeper ordered that a copy of it should be sent to the commons.-After the return of that body to their own house, Rushworth itforms us that Mr. Secretary Cooke made the following speech, in order to persuade them to comply with the king's desires "His maj.puts us in mind of the great and important affairs of the state, and of his sense thereof, that by effluxion of time increaseth in him, and he doubts not but that it doth increase in us. Ye see his maj.'s mo deration in the interpretation of all our actions; he saith, that he hopes we have the same |