Petition of Right
Parliament was focused at the outset on The Five Knights’ Case, in which citizens were committed to prison not for crimes created by parliament or for avoiding a parliamentary tax but for not paying loans that were in theory voluntary but were in fact coerced by the King. Their writs of habeas corpus had been denied by the newly obedient King’s Bench. Seventy-six men lingered in prison over the winter. Charles I’s opening address, warning members not to meddle in his affairs, helped little. Coke, elected independently by two separate constituencies, but seated only for one, was by then at the extreme of his opposition to Charles, although his deep loyalty to the Crown was a continuing theme in his actions. Coke moved early for a committee of the whole to consider both grievances of Parliament and the King’s supply, or tax support for military or other unusual expenses. Commons passed a remonstrance against Charles’s unilateral raising of money from tonnage and poundage. Coke argued for the protection of habeas corpus, moving for a Petition of Right, which was drafted on his lines and voted up. There were numerous arguments over details, particularly over the King’s use of martial law, which Coke opposed. The House of Lords introduced an amendment to save the “sovereign power of the Crown.” Coke persuaded the Commons to defeat the amendment. The Lords, influenced largely by Coke, who represented Commons to them, agreed with the amendment’s removal. The King, advised by Buckingham, initially gave an evasive answer that would not amount to acceptance of the Petition as law. Coke denounced Buckingham as the cause of the King’s insult to parliament. The Lords and Commons made a new joint address to Charles I, asking him to assent. Charles I assented to the Petition of Right as a statute of the realm, and the Commons granted him his supply, having already passed five subsidies, or emergency grants and specialized taxes on goods.
During the ongoing debates on the Petition of Right, other debates on religious issues occupied considerable attention, and Parliament passed laws against religious error.—Ed.
March 20, 1628.
Ed.: In debate on the elections of members and of certain government officials.
Sir Edward Coke. It behooves us with all endeavor to labor that the kingdom be kept in unity. The devil put in this. This is not to cut the member but to strike the root. They must have men of gravity. These men make a separation between king and people. I beseech God this Machiavellian trick be found out and punished.
Sir Edward Coke. We passed divers excellent laws last parliament. Let a note be made of them, and let them be delivered to the House upon Monday morning.
Sir Edward Coke. I have spent my youth in Suffolk, my age in Buckinghamshire, and had a thought never more to have seen a parliament. I desire there may be no precipitation but that a few days may be allotted to consider. For questionable elections, I humbly move they may be examined in order as they come.
March 21, 1628.
Ed.: Describing an unwritten, but proposed bill to bring in the names of recusants.
Sir Edward Coke said that to draw a committee before we have a bill, and it be read, is not usual. Let it be first read, for we must have a subject, a foundation, and that is it we must work upon.
Ed.: In debate on the limits of property forfeiture or loss of life before attainder or conviction.
Sir Edward Coke said, in 4to Hen. 6, the Chancellor of England did use to take a theme, and divide it, and speak of some subject therein. And that was, “While we have time let us do some good.” So I, at this time, “Let us do something.” Mr. Speaker, nothing is more precious to a man in this life than liberty. Imprisonment is a heavy punishment; and yet just in many cases. The law gives remedy if a horse or a sheep be taken. If a man be in prison, God forbid but the law should give remedy. It doth give remedy, you know right well. There is a habeas corpus that the judges cannot deny. Nay, there is a writ called de homine replegiando, grounded upon Magna Carta. If a man be unjustly committed, there is a writ, and secret of law in it. But many do think that this writ is gone. So saith Stanford; he gave his opinion of 28 Edw.3. but he comes with that of 42 Edw.3, a law made that all statutes made against Magna Carta should be void; but this writ is grounded upon that; then it stands. Thus the secret of law. If they repeal the act first, the law resolves we have laws made that men should not be long detained in prison. If the keeper of a jail keeps me in prison, and do not sue out a commission of free deliverance, he loses his prison. So that the prison is but a surety to bring a man forth, if he have no surety. But shall a man be in perpetual imprisonment? That is against the law of the land. For seeing a man hath surety for himself, God forbid the law should hold him in prison. The law is curious in this, touching the liberty or freedom of a subject. To give strength to the law, I have penned a bill. I do not doubt but this bill will have many oppugners. Therefore I keep my reasons till the time.
The bill read, entitled An act against long and unjust detainment of men in prison.
It recited that by the laws of the realm, no person in prison, or committed to prison, for any offense done, or supposed to be done, ought to be detained; but justice in convenient time is to be executed, that, if he be innocent, he may be acquitted and delivered. It is desired that no person now in prison, or restrained of liberty, or which shall be, by commandment or other warrant, for any contempt done or supposed to be done, shall, after the end of this session, be kept in prison. If he be not delivered within two months after the parliament, he shall within two months be set at liberty until an accusation be alleged. And for default of such discharge, the parties shall be freely discharged from all offenses committed by them within two months. And if any such person shall not be set at liberty, he shall be acquitted of all offenses whatsoever.
March 22, 1628.
Ed.: In a debate on the King’s Request for supply, focusing on his abilities with regard to taxes and loans.
Sir Edward Coke. The way I shall take, I am absolutely to give supply to his Majesty, yet with some caution. To tell you of foreign dangers and inbred evils, I will not do it. The state is inclining to a consumption. It is curable. I fear not foreign enemies. God send us peace at home. For the disease I will propound remedies. I’ll speak nothing out of my head, but from my heart and out of acts of parliament. I am not able to fly at all grievances, but only at loans. Let us not flatter ourselves, who will give subsidies if the King may impose what he will, and if after a parliament the King may enhance what he pleaseth. I know the King will not do it. I know he is a religious king free from personal vices, but he deals with other men’s hands and sees with other men’s eyes. Will any give any subsidy that he may be taxed after parliament what they please? The King cannot tax any by way of loan. I differ from them that would have it go by way of grievance, but I would have it go alone.
I’ll begin with a notable record, it cheers me to think of it: 25 Edw.3, num. 16. It is worthy to be writ in letters of gold. Loans against the will of the subject are against reason and the franchises of the land, and they desire restitution. What a word is that “franchise.” Villeins in nativo habendo, their lord may tax them high or low, but this is against the franchise of the land for freemen. “Franchise” is a French word, and in Latin it is liberty. In Magna Carta, nullus imprisonetur nor put out of his liberty or franchise. 9 Hen.3, cap. 29 have been confirmed by good kings 33 times. 12 Hen.3, sententias lata super cartas. The Magna Carta is called carta libertates et franchisae.Rot. pat., 21 Hen.3, mem. 4, Carta libertatis quia liberos facit, and to overthrow it makes slaves.
42 Edw.3, they make a law that all laws against Magna Carta are void. Edw.1, statute de confirmatione cartarum, no benevolence nor aid shall be but by assent of the realm; 25 Edw.1, which expounds Magna Carta. 34 Edw.1, nullum tallagium seu auxilium per nos ponetur sine voluntate baronum, etc. They were wise, they unfolded much in few words. Tallagium comes a talliare, from cutting. You shall not cut a part of my substance without my will, and that is tailoring excises of bread and wine. It is cutting if you cut any part of the subject. No tallage shall be done; the word tallagium was in the Conqueror’s time. W. Conqueror, volumus ut omnes liberi homines habeant terras suas in pace sine omni tallagio, ita quod nihil exigatur nisi per communem concessum, as appears by Mr. Lambarde’s ancient laws, etc.
Objection: 34 Edw.1. is no act of parliament. Answer: ’Tis true it is in the form of a charter, but yet an act of parliament. 9 Ric.2, rot. 10, the King cannot raise supply but by assent of parliament. 5 Ric.2, many undone by loans.
Objection: May not enemies come in, and in such a time of necessity may not loans be?
Answer: 13 Hen.4, rot. parl., 10 et 18, no tallage or subsidy for defense of the realm or sea shall be without act of parliament, for parliaments ought to be every year.
Fortescue, cap. 34 et 35, shows how in other countries they set impositions at will, but the king of England per se aut ministros tallagium aut subsidium non potest imponere sine assensu totius regni. Escuage, you know, may be uncertain, and though it be done in respect of tenure, yet being uncertain it cannot be without act of parliament.
Hen.7 got a benevolence of his people and he made a promise in parliament not to do the like again, 11 Hen.7, cap. 10, rot. 16 Henry 8, the great cardinal made a commission to take the sixth part of all plate. When they came into Norfolk and Suffolk they rose and would not pay it. The King laid it on the Council and said “I never consented to this commission.” 34 Hen.8, “Quinzime,” br. 9, no tallage can be without act of parliament. I do but gild gold to constrain a man to lend. None can be sure of his own.
Question: What will you do?
Answer: I would have this loan an act of parliament, and as a preface to an act of subsidies, and woven into it, and let the other grievances be in all humility tendered to his Majesty. And I do not despair. His Majesty is most free of all his predecessors.
March 24, 1628.
Ed.: In a debate over a bill for conscripting soldiers, considering the role of Deputy Lords Lieutenant.
Sir Edward Coke. When they shall come to it the deputy lieutenants have a greater excuse than everyone knows of. I’ll tell them how the law stands at this day. When I was a student I could not understand two statutes that concern this point: 5 Hen.2, cap. 10, 18 Hen.6, cap. 19. I was in a wood; never any book case explained them, and those statutes say that if any soldier be returned by indenture, and returned by record, for the terms to serve their master, etc., I found a precedent of an indenture of a soldier of Erpingham. In republica sunt servanda jura belli. Sir John Erpingham was sent for to the King and treated with him for the soldiers, and came down into the country and got his tenants and others that went with him. See for this 48 Edw.3; 9 Edw.4, 16; 21 Edw.4, 75. It was an excellent law, that the poor man went with his lord and master, but for an Englishman to go with a stranger, what misery is it? They must not be sine fide et sine sede that are captains. It must be with one that he may live with when he returns. In Edw.3 times there came a new course, men were pressed. I had rather live under a sharp law than under no law, et nihil novum sub sole, the same course was then as is now. Then they pressed men, and 25 Edw.3, cap. 8, it was enacted that no man shall find arms and munition but by his tenure. There’s a negative law; 4 et 5 Phil. et Mar., cap. 2 was but for a time. Now they have new courses and new discipline. But now we are without law. I hold the deputy lieutenants lie under the stroke of the law for what they do. Let there be a committee of soldiers and others of my profession to pen a law for them. For the love of God and safety of the realm, let it not be said that there wants laws that touch government, that we may live under a law and not other men’s discretions.
Ed.: In a debate on supply.
Sir Edward Coke. I am heartily glad that I find a concurrence in matter and judgment. It concerns us in point of honor. It is a tender point to a king. I would not have so great a price set on it as honor. The King hath precedency. We will consider of supply and grievances too. Both were propounded. The order gives the supply the precedency. We cannot give the King honor; he hath all honor. It was the purpose of the House to look into grievances. If loans be not taken away from us, we cannot do what we desire.
In the Committee for Religion
Ed.: In debate concerning lease laws relating to recusants.
Sir Edward Coke. The proclamation touching recusants and the commission for composition, to speak freely, is a toleration. When I was Attorney, when a lease was made of recusants’ lands, there was a special covenant that they should not come into a recusant’s hand, as now it doth. What doth it differ from a toleration? If there be such a commission, ’tis against the law. This man that hath it is to be brought here, and to be examined how many recusants he hath compounded with, and to bring all the commissions in.
March 25, 1628.
Committee of the Whole House
Ed.: In a debate concerning a subject’s liberties in his person and in his property, the Parliamentary response to The Five Knights’ Case.
Sir Edward Coke. I like the motion well to have time given. The matter is very weighty, and of very great consequence. In medio tutissimus ibis. I shall ever be as ready to maintain the King’s prerogative as any man. I have been twice sworn to it, and it was resolved 3 Jac. at the parliament that the King’s prerogative is the supreme part of the laws of the realm. No other state is like this.
Divisos ab orbe Britannos. We have a national law appropriate to this kingdom. If you tell me of other laws, you are gone. I will only speak of the laws of England. This question is a question of law. That Mr. Attorney may have something to answer, I will say somewhat, and I shall speak with reverence; and I would not speak were it not that my gracious King I hope shall hear it. It is not I, Edward Coke, that speaketh it. I shall say nothing, but the records shall speak. I shall be ready to convert myself on better reason. Errores ad sua principia referre est refellere. This opinion grows out of Westminster I and Mr. Stanford, that these men shall not be bailed: those that are in for murder or by command of the King or of his justices or of the forest, Stanford accordingly. In every text mark the context. The command of the King is in the King’s Bench, which is there coram rege, and per preceptum regis, is the command of the judges of the King’s Bench, and the other justices of the Common Pleas.
And in the same time I will show you that the command of the King is meant by the judges. Westminster 1, cap. 9, if men follow not with hue and cry they shall be amerced by the by King. 2 Ric.3, 11, non in camera regis sed in curia regis, and it shall be by the justices. Westminster 1, cap. 20, de malefactoribus in parcis, ’tis a grievous law. He shall be fined at the King’s will, that is at the will of the judges. The King distributes his power by the judges. Westminster 1, cap. 26 and 29, it is given to the King, it is meant the judges. The same men that made that law made that question, and by the King is meant the King’s justices. 1 Ric.2, cap. 12, mentions the warden of the Fleet, etc., if not by the King’s [writ] or by the commandment of the King. H.4. took it literally; one was in execution in the Fleet, the King sent him for a soldier, but that ought to be by a command from some court. 5 Mariae 162; 13 Eliz. 297, Westminster 1 say, none shall be bailable by the command of the King; it must be taken by some courts of justice. For the reasons of the judgment I heard them not nor understand them. I will speak in rem and not in personam.Pasch., 18 Edw.3, rot. 33, coram rege, Bildeston’s case. Edw.3 first made a warrant showing no cause to apprehend a man, and had a writ under the great seal to deliver this man to the Tower till further order should be taken by the King. This command came not verbally or by any signification, but by writ, and he lay two years in the Tower, and there the King commanded that he should be brought into the King’s Bench, which was by habeas corpus, and there before Scott, the Chief Justice, they asked whether there were any other cause of his commitment and the lieutenant said aright nihil nisi breve praedictum, and they said that it is not cause sufficient, and so he was delivered. There was the King’s writ and yet without cause. Then came another writ to show that they should have information that he coined the King’s coin, and proclamation was made, and a short day given. This was not sufficient cause.
16 Hen.6, “Monstrans de faits” 182, the King cannot command any to be imprisoned. 1 Hen.7. 4b, the King cannot arrest any man. Fortescue, cap. 8. concurs with the former. I never read one opinion against it. No free man ought to be committed but the cause must be showed in particular. If it be for treason or murder the particular must not be showed, but the general must. If he escape and break prison, if there be a particular cause, he shall suffer as if he were condemned for the fact. Commit him generally; if the jailer and he join together, it is fineable only. 1 Ric.2. de Frangentibus Prisonam, the cause for which he is taken, etc. If the cause be not set down he may escape. I will conclude with the chiefest authority, the Acts of the Apostles, 25 cap. verse the last: It is against reason to send a man to prison and not to show the cause. What I speak it is that my Sovereign be truly informed of the laws, which I dare say he will defend with his sword, as well as his predecessors. I have now given a preparative to Mr. Attorney, according to the old course of physic, which is before you purge a man to give him a preparative. I have much more in store.
Sir Edward Coke. No restraint ever so little, but it is an imprisonment.
Sir Edward Coke. For us to touch anything that the King’s prerogative can reach unto, it is dangerous. For employment in the King’s service, shall we not leave that to the King and trust him therewith? 18 E.2, Beaumont was of the Great Council, and of the Privy Council. The King desired his counsel, to employ him abroad. He refused and was fined and imprisoned for it. I was employed to go to Ireland. I was willing to go and I hoped (if I had gone) to have found some Mompesson there. I would have gone, else I should have been fined and imprisoned.
Sir Edward Coke. Qui bene distinguunt, bene docent. I put my case of a great lord to give his counsel and to be an ambassador. The King cannot press soldiers to go beyond the seas. 1 Edw.3. is for soldiers but not for others things.
March 26, 1628.
In the Committee of the Whole House
Ed.: In a debate over supply, especially concerning appropriations and impressment and confinement of men for naval vessels.
Sir Edward Coke. These are matters of great weight. The course of this House is to deliberate well before we order. Let every man have a copy and keep it secret. Some things are general. If they were in particular we might give a better answer. It is desired to pay some arrears. We must know what they are, and we must consider the ability of the country to pay these, for we are to serve the country. What these arrearages are, none know.
Sir Edward Coke. Confinements in a foreign country or in a man’s house is all one. This is a new-growing evil. Venienti occurrite morbo. It is against Magna Carta. Liber homo non imprisonetur. In Queen Elizabeth’s time it was resolved no free man should be confined to any place whatsoever. Did that blessed Queen confine recusants till a law was made? And shall men that are no delinquents be confined?
It is much against the liberty of the subject that a Norfolk man should be confined to Cumberland. Let it be ordered that it is the ancient andundoubted right of the subjects of England not to be confined to a particular place but by act of parliament.
Ed.: Concerning an oath administered by the commissioner of a loan.
Sir Edward Coke. One thing hath been moved. These loans were done by commission. No commission can be granted but it must be warranted by law, as a writ, a commission of jail delivery of nisi prius, etc., in all these it is factum secundum legem Angliae. All commissions must not be new, but such as are in the register or in the Chancery. 18 Edw.3, all novel inquires and these adulterate commissions were damned by parliament. 9 Hen.4, num. 36, the King would regulate mariners by a commission, and it would not be, for that there was no such form. 1 Eliz., a commission was granted to the Earl of Bedford to determine the right of an office in the Common Pleas, and they committed the poor man, who was delivered by a habeas corpus.
Ed.: Concerning the progress of debate, at the end of the morning session, addressing Edward Littleton, the speaker.
Sir Edward Coke. I never saw that moderation in any parliament as is used in this. Men ought to speak pertinently. When you hear a man not speak to the question, you in the chair are to stand up and take him off.
March 27, 1628.
Ed.: This follows the reading of a petition from a conference with the Lords.
Sir Edward Coke. It joys my soul to see this care for the honor of God and His worship. One thing would be added. The Jesuits do now live in our realm. If we do nothing against them, I pray God they do nothing against us.
March 29, 1628.
In the Committee of the Whole House
Ed.: Concerning the King’s inability to imprison a freeman without cause.
Sir Edward Coke. This is questio juris. They that have spoken pithily and learnedly, and that with all reverence to his Majesty and the Council. I said before I gave them a preparative that removed the humors, humores moti and not remoti corpus destruunt. They that argued for the King would not answer what was said. They slighted it as nothing to the purpose. There is a figure called simulatio that (God forgive me) I used when I was in their places, that that we cannot answer we scorn and slight. I will leave this question as naked as Aesop’s crow.
Duo sunt instrumenta ad omnes res confirmandas et confutandas: ratio et auctoritas. They that speak here must beat upon reason.
1. I shall produce therefore some reasons, first from the universality of the persons whom this concerns. Commentaries, 236, it is maxim that the common law hath so admeasured the King’s prerogative that in no cause it can prejudice the inheritance of the subject, and how doth this absolute authority that is pretended concern not only the commonalty but the lords and all spiritual persons and all officers? For if he be committed and be called on for his office, his office is forfeited. It concerns all men and women, and therefore it deserves to be spoken of in parliament. This may dissolve this House, for we may be all thus committed.
31 Hen.6. rot. 27, rot. parl., no member of the parliament can be arrested but for felony, treason, or the peace, and all here may be committed, and then where is the parliament? Sure the Lords will be glad of this; it concerns them as well as us.
2. The second reason is from the indefiniteness of the time, non definitur in lege. Had the law given this prerogative it would have set some time to it, else mark what would follow. I shall have an estate of inheritance for life or for years in land or property in my goods, and I shall be a tenant at will for my liberty, and I shall have property in a goose and not liberty in my person. Perspicua vera non sunt probanda.
Objection: When you were Chief Justice you did otherwise than now you speak. I would have another speak truth: Wray was wont to say letters of great men were letters of justice. When I was a student I wondered what he meant. His meaning was that letters in that kind do let justice, or further it. Nothing fell out in my place of justice, but I kept a note of it. Beckwith was committed and no cause showed. We meant to bail him, and then came the lords’ letter that we should bail him (God be thanked for it) and the letter was kept and my note saith so. Sir John Broket was committed and no cause showed, and perhaps the judges would have delivered him, and then came a letter from the lords (God be thanked). The Council Table must be maintained, or the commonwealth will perish.
Objection: There was a mandatum regis and the party was remanded. I deny that I ever was at any disputation in my place of any judgment that was given. I confess freely when I read Stanford only, perhaps I was of his opinion; but when I saw such a company of authorities against it, God forbid that I should follow my guide when my guide goes wrong. 12 Hen.7. Yew’s case, he was committed tam pro felonia quam per mandatum domini regis: the attorney, seeing the court would deliver him, retraxit mandatum suum.
If the King had such as prerogative for which there was only an opinion of one judge in Queen Mary’s time, shall that weigh down so many acts of parliament and precedents as are on our sides?
The remittitur quousque, what means the quousque? That is quousque secundum legem terrae deliberatur but it is not quousque curia advisari vult. In Hen.6. Markham was then a lawyer, and Edward the fourth asked him if the King might arrest one. The laws to the King are quoad directionem and not quoad correctionem.
Fortescue, cap. 8, nullus rex Angliae proprio ore can commit any; it is too low a thing for him. 8 Hen.4, the King has distributed his judicial power to the courts of justice and ministers of justice, and it is too low for so great a monarch as the King is to commit men to prison. 18 Edw.3, rot. 33, Bildeston’s case. Sed quaesitum est del lieutenant si alia esset causa. Qui respondit non habuit nisi breve praedictum. Sed quia videtur curie breve non esse sufficient[em] ideo deliberatur. Here’s a court that cannot be daunted with any fear. Now to your balance that is in your hands that sits in the chair. Put in Stanford and 21 Edw.1 (though it was nothing) into one balance, and into the other put 7 acts of parliament, 3 book cases, and the precedents; sure haec via non ducit in urbem. For my reading, I never read any opinion or record against it.
There must be added that if any be committed for a just cause he ought not to be detained long in prison. By the Statute of Gloucester, if a man be imprisoned he shall remain there till the next coming of the justices, but there must be a time. Westminster 2, cap. 29, rex concedit that none shall be long in prison, ne diu detineantur in prisona. 8 Hen.4, if one have a jail and sue not a commission of jail delivery it is a forfeiture.
Ed.: Criticizing the precedential merit of an opinion in which Coke had allowed the Privy Council to commit a prisoner without bail.
Sir Edward Coke. This report moves me not. That report is not yet 21 years old, but under age, being 13 Jac. In truth when I read Stanford I was of his opinion, but after looking into those records before mentioned I was ofanother mind. He brings an ill time of 13 Jac.; there were many of the traitors of the powder treason then committed per mandatum concilii. For the report, those apocrypha reports, there’s no credit to be given to them. It was done by some young student that did mistake. It was no judgment of the court, but the student’s own making.
March 31, 1628.
In the Committee of the Whole House
Ed.: In debate about a petition of both Houses concerning recusants, considering the effect of the precedent of 13 Jac.
Sir Edward Coke. The glass of time runs out, and some things cast amongst us have retarded us. When I spake against the loans and this matter I expected blows, and somewhat was spoken, though not to the matter. Concerning that which I did when I was a judge, I will say somewhat. Indeed a motion was made, but no argument or debate or resolution upon advice. I will never palliate with this House. There is no judge that hath an upright heart to God and a clear heart to the world but he hath some warrant for everything he doth. I confess when I read Stanford and had it in my hands I was of that opinion at the Council Table. But when I perceived some members of this House were taken in the face of this House and sent to prison, and when I was not far from that place myself, I went to my book, and would not be quiet till I had satisfied myself. Stanford was my guide and my guide deceived me; therefore I swerved from it. I have now better guides. Acts of parliament, and of other precedents, these are now my guides. I desire to be freed from the imputation laid upon me.
As for the intended judgment, I fear (were it not for this parliament) it had been entered. A parliament brings judges and all other men into good order. If a clerk had drawn this he would have done it by a precedent, and no precedent warrants it, and therefore some other did it.
This draft of the judgment will sting us, quia nulla causa fuit ostenta, ideo ne fuit bayleable, and so it appears by the records. I persuade myself Mr. Attorney drew it. I had a copy of my Lord Anderson’s report of 34 Eliz. long ago. I durst not vouch it as it was in that copy, for it was apocrypha, and did not answer his gravity that made it, and yet it was cited in the King’s Bench that all the judges of England ruled it.
April 1, 1628.
In the Committee of the Whole House
Ed.: This is a discussion of a book of writs compiled by Lord Anderson.
Sir Edward Coke. Of mine own knowledge this book was all writ with my Lord Anderson’s own hand, and I had a copy of it in Queen Elizabeth’s time. It is no flying report of a young student. I was Solicitor then, and Treasurer Burghley was as much against commitment as any of this kingdom; it was the white staves that made the stir. I know who it was that offended; it was not done by all. It was one that laid men in corners and dark places. Let us now go to the question.
Ed.: In a discussion about the inability to hold a suspect without cause.
Sir Edward Coke. When one is in one prison and brought thence into the King’s Bench by habeas corpus, he cannot be bailed, if he be not in Maresc., and if he be not bailed he is remanded to the prison from whence he came.
April 2, 1628.
In the Committee of the Whole House
Ed.: This is a debate about the grant of supply for war.
Sir Edward Coke. When I considered from whence those articles came, and with what consideration they were molded, I doubted whether I should speak or not, but finding a way to speak out of a record, I will tell you my opinion. When poor England stood alone, and had not the access of another kingdom, and yet had more and as potent enemies as now it hath, and yet the King of England prevailed.
42 Edw.3, num. 2, in the parliament roll, the King and the parliament gave God thanks for his victory against the kings of Scotland and of France. He had them both in Windsor Castle as prisoners. What was the reason of those conquests? Four reasons were given: 1, the King was assisted by good counsel; 2, there were valiant men; 3, they were timely supplied; 4, good employment.
8 Ric.2, num. 3, the King was environed with the Flemings, Scots, and French, and the King of England prevailed.
17 Ric.2, num. 1, wars were in Ireland and Scotland. The King of England prevailed, and thanks were given to God here, and I hope we shall live to give God thanks for our King’s victories.
13 Ric.2, num. 1, the King was environed with Spaniards, Scots, and French, and yet the King of England prevailed. I am now in no fear of Scotland.
Henry the fourth was a great warrior. The Bretons were a trouble to him. Calais assaulted, Ireland besieged, other troubles, but the King of England prevailed.
7 Hen.4, one or two great men about him so mewed him up that he took no other advice but from them. The Chancellor took this theme or text in his speech at the parliament, Multorum consilia requiruntur in magnis. In bello qui maxime timent sunt in maximis periculis. Let us give and not be afraid of our enemies; let us supply bountifully, cheerfully, and speedily, but enter not into particulars. King Solomon’s rule is qui repetit separat, nay separat foederatos. We are united in duty, etc., to the King. The arrearages will of necessity separate us; quae causa, it is a wonderful thing. This will turn us out into other discourses. Follow Solomon’s rule, qui repetit separat. The King hath 80 score thousand pound a year for the Navy, and to scour the Narrow Seas. It hath been taken, and we are now to give it, and shall we now give more to guard the seas besides, when that it is taken without our gift, and diverted another way? For the 1,000 horse and 10,000 foot, a pure defensive war is a vast thing, yet in an island defensive war is the safest. It is a great thing to have such an army. I will not speak against it, but in general I would give the King a bountiful supply. It shall never be said we deny the King all supply. I think myself bound; where there is commune periculum there must be commune auxilium. The King, in King James his father’s time, was an excellent means to procure all these excellent laws we then had,whereby is prevented all these worms, these locusts, the caterpillar, the informer, monopolizer, and concealer. We are in hand to have a fast. It shall be expedient that we pray that the King have good counsel and valiant men, and what we give be well employed.
April 3, 1628.
In Conference with the Lords
Ed.: A Report to the House of Lords concerning Acts of the House of Commons dealing with the liberties of subjects.
Sir Edward Coke. “Your lordships have heard 7 acts of parliament in point, and 31 precedents summarily collected, and with great understanding delivered; which I have perused, and understand them all thoroughly: 12 of the precedents are in terminis terminantibus, a whole jury of precedents, and all in the point. I am transported with joy, because of the hope of good success in this weighty business, your lordships being so full of justice, and the very theme and subject both promise success; which was corpus cum causa, the freedom of an Englishman, not to be imprisoned without cause shewn; which is my part to shew, and the reason and the cause why it should be so; wherein I will not be prolix; for to gild gold were idle and superfluous.”—After that he had cleared some doubts made of the Statute of Westminster, which saith, ‘That the sheriff, and others, in some cases, may not replevin men in prison,’ he proceeded further and said, “That all those arguments offered unto you in this last conference, are of a double nature. 1. Acts of parliament. 2. Judicial precedents. For the first I hold it a proper argument for your lordships;because you, my lords temporal, and you, my lords spiritual, gave your assent unto those acts of parl.; and therefore, if these cannot persuade you, nothing can. For the 2nd, which are judicial precedents, it is Argumentum ab authoritate, and Argumentum ab authoritate, valet affirmative; that is, I conceive (through it be no good argument to say negatively) the present judges gave no opinion in this point. 3. It is good law, which I fortify with a strong axiom. Neminem oportet sapientiorem esse legibus. Now these two arguments being so well pressed to your lordships by my colleagues, I think you may wonder what my part may be: it is short but sweet; it is the Reason of all those Laws and Precedents; and reason must needs be welcome to all men: for all men are not capable of understanding the law, but every man is capable of reason. And these reasons I offer to your lordships, in affirmance of the antient laws and precedents made for the Liberty of the Subject, against Imprisonment,without cause expressed. 1. A re ipsa. 2. A minori ad majus. 3. From the remedies provided. 4. From the extent and universality of the same. 5. From the indefiniteness of the time. 6. A fine.—The first general reason is, A re ipsa, even from the nature of imprisonment, ex visceribus causae; for Iwillspeaknothing but ad idem, be it close or other imprisonment; and this argument is threefold; because an imprisoned man upon will and pleasure, is 1. A bond-man. 2. Worse than bond-man. 3. Not so much as a man; for mortuus homo non est homo; a prisoner is a dead man. 1. No man can be imprisoned upon the will and pleasure of any, but he that is a bond-man and villain; for that imprisonment and bondage are propria quarto modo to villains: now propria quarto modo, and the Species, are convertible; whosoever is a bond man may be imprisoned, upon will and pleasure; and whosoever may be imprisoned, upon will and pleasure, is a bond-man. 2. If Freemen of England might be imprisoned at the will and pleasure of the king, or his commandment, then were they in worse case than bond-men or villains; for the lord of a villain cannot command another to imprison his villain without cause, as of disobedience, or refusing, to serve, as it is agreed in the Year-Books.’—And here he said, ‘That no man should reprehend any thing he said out of the books or records. He said, he would prove a freeman, imprisonable upon command or pleasure without cause expressed, to be absolutely in a worse case than a villain; and if he did not make this plain, he desired their lordships not to believe him in any thing else; and then produced two Book-Cases, 7 Edw. 3.; A prior had commanded one to imprison his villain; the judges were ready to bail him, till the prior gave his reason, that he refused to be bailiff of his manor, and that satisfied the judges. Second Case, 33 Edw. 3. Title Trespass 253. in Faux Imprisonment: it was of an abbot, ‘who commanded one to take and detain his villain; but the cause being demanded, he gives it, because he refused, ‘being thereunto required to drive his cattle. Ergo, Freemen imprisoned, without cause shewn are in worse case than villains, that must have a cause shewn them why they are imprisoned. 3. A Freeman imprisoned, without cause, is so far from being a bond-man, that he is not so much as a man; but is indeed a dead man, and so no man. Imprisonment is in law a civil death; perdit domum, familiam, vicinos, patriam, and is to live amongst wretched and wicked men, malefactors, and the like. And that death and imprisonment was the same, he proved by an argument ab effectis, because, they both produce the like immediate effects: he quoted a book for this; ‘If a man be threatened to be killed, he may avoid feofment of lands, gifts of goods, &c. So it is if he be threatened to be imprisoned: the one is an actual, the other is a civil death. And this is the first general argument, drawn a re ipsa, from the nature of imprisonment, to which res ipsa consilium dedit. —The second general Reason he took from his books; ‘For, he said, he had no law, but what, by great pains and industry, he learned at his book; for, at ten years of age, he had no more law than other men of like age. And this second reason is, à minori ad majus: he takes it from Bracton, ‘Minima poena corporalis est major qualibet pecuniaria.’ But the king himself cannot impose a fine upon any man, but it must be done judicially by his judges, per justitiarios in curia, non per regem in camera; and so it hath been resolved by all the judges of England. He quoted 3 Rd.
2. The third general Reason is taken from the number and diversity of remedies, which the laws give against imprisonment, viz. Breve de Homine replegiando; de Odio & Atia; de Habeas Corpus; an appeal of imprisonment. Breve de Manucaptione. The two latter of these are antiquated; but the writ de odio & atia is revived, for that was given by the statute of Magna Charta, cap. 29. and by statute of 42 Edw. 3. it is declared, That all statutes made against Magna Charta, are void. Now the law would never have given so many remedies, if the freemen of England might have been imprisoned at will and pleasure.—The fourth general Reason is from the extent and universality of the pretended power to imprison; for it would extend not only tothecommons of this realm, and their posterities: but to the nobles of the land, and their progenies: to the bishops and clergy of the realm, and their successors. And he gave a cause why the commons came to their lordships, ‘Commune periculum commune requirit auxilium.’ Nay, it reached to all persons, of what condition or sex, or age, soever; to all judges and officers, whose attendance is necessary, &c. without exception; and therefore an imprisonment of the such extent, without reason, is against reason.—The 5th general Reason is drawn from the indefiniteness of the time, the pretended power being limited to no time, it may be perpetual during life and this is very hard. To cast a man into prison, nay, to close prison, and no time allotted for his coming forth, is a hard case, as any man would think that had been so used. And here he held it an unreasonable thing, that a man had a remedy for his horse or cattle, if detained, and none for his body thus indefinitely imprisoned; for a prison, without a prefixed time, is a kind of hell.—The 6th and last argument is, ‘A Fine;’ and sapiens incipit à fine; and he wished he had begun there also. This argument he made threefold. Ab honesto. This being less honourable. Ab utili. This being less profitable. A tuto. This imprisonment, by will and pleasure, being very dangerous for the king and kingdom.’ 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 be both dedecus & damnum, both to king and kingdom, that in former times hath been so renowned. 2. Ab utili. It would be against the profit of the king and kingdom, for the execution of those laws before remembered, Magna Charta. 5 Edw. 3. 28 Edw. 3. 42 Edw. 3. whereby the king was inhibited to imprison upon pleasure. You see, quoth he, that this was vetus querela, an old question; and now brought in again, after seven acts of parliament: I say, the execution of all these laws are adjudged in parliament to be for the common profit of the 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.”—He was pleased to call this a binding reason, and to say, ‘That the wit of man could not answer it; that great men kept this Roll from being’ printed, but that it was equivalent in force to the printed Rolls. 3. A tuto. It is extremely dangerous to the king for two respects; 11, of loss; 2, of destroying the endeavours of men. First, if he be committed without an expression of the cause, though he escape, albeit in truth it were for treason or felony, yet this escape is neither felony nor treason; but if the cause be expressed for suspicion of treason or felony, then the escape, though it be innocent, is treason or felony. He quoted a case in print like a reason of the law, not like a remittitur at the rising of the court, for the prisoner traditur in ballium, quod breve regis non fuit sufficiens causa; i.e. the king’s command. He quoted another famous case. The commons inparliament,incensedagainst the duke of Suffolk; desire he should be committed: the lords and all the judges, whereof those great worthies, Prescot and Fortescue, were two, delivered a flat opinion, That he ought not to be committed without an especial cause. He questioned also the name and etymology of the writ in question, corpus cum causa; ergo, The cause must be brought before the judge, else how can he take notice thereof? Lastly, he pressed a place in the gospel, Acts 25, last verse, where Festus conceives it an absurd and unreasonable thing, to send a prisoner to a Roman emperor, and not to write along with him the cause alledged against him; send therefore no man a prisoner, without his causes along with him, hoc fac & vives. And that was the first reason, à tuto, that it was not safe for the king, in regard of loss, to commit men without a cause.—The 2nd reason is, That such commitments will destroy the endeavours of all men. Who will endeavour to employ himself in any profession, either of war, merchandise, or of any liberal knowledge, if he be but tenant at will of his liberty? for no tenant at will will support or improve any thing, because he hath no certain estate; ergo, to make men tenants at will of their liberties, destroys all industry, and endeavours whatsoever. And so much for these six principal Reasons,
These were his reasons.—Here he made another protestation, “That if remedy had been given in this case, they would not have meddled therewith by no means; but now that remedy being not obtained in the king’s bench, without looking back upon any thing that hath been done or omitted, they desire some provision for the future only. And here he took occasion to add 4 Book- Cases and authorities, all in the point, saying, That if the learned counsel on the other side, could produce but one against the liberties, so pat andpertinent, Oh! how they would hug and cull it. 16 Hen.6. Tit. Monstrance de Fait, 182. by the whole court, the king in his presence cannot command a man to be arrested, but an action of false imprisonment lieth against him that arresteth: if not the king in his royal presence, then none others can do it: Non sic itur ad astra. 20 Hen. 6. 4. Hussey reports the opinion of Markham, chief-justice to Edward the Fourth that he could not imprison by word of mouth; and the reason, because the party hath no remedy; for the law leaves every man a remedy of causeless imprisonment: he added, that Markham was a worthy judge, though he fell into adversities at last by the lord Rivers’s means, Fortescue, chap. 18. Proprio ore nullus regum usus est to imprison any man, &c. 4. Eliz. a blessed queen, renowned for justice and religion. Pl. 235. The common law hath so admeasured the king’s prerogative, as he cannot prejudice any man in his inheritance; and the greatest inheritance; and the greatest inheritance a man hath, is the Liberty of his Person, for all others are accessary to it; for this he quoteth the Orator, Major Haereditas, venit unicuique nostrum, a jure & legibus quam a parentibus. And these are the 4 authorities he cited in this point; now he propounded and answered two objections; 1st in point of state; 2ndly in the course held by the commons. 1. Obj. ‘May not the privy- council commit, without cause shewed in a matter of state where secrecy is required? would not this be an hindrance to his maj.’s service? Answ. ‘It can be no prejudice to the king as to matter of state, for the cause must be of higher or lower nature. If it be for suspicion of treason, misprision of treason, or felony, it may be by general words couched; if it be for any other thing of smaller nature, as contempt, and the like, the particular cause must be shewed; and no individuum vagum, or uncertain cause to be admitted. 2. Obj. ‘If the law be so clear as you make it, why needs this declaration andremonstrance in parliament? Answ. The subject hath in this case sued for remedy in the king’s bench, by Habeas Corpus, and found none; therefore it is necessary to be cleared in parliament.”—Here sir Edward Coke ended his discourse: and then he made a Recapitulation of all that had been offered unto their lordships, That generally their lordships had been advised by the mostfaithfulcounsellors that can be, viz. dead men; these can’t be daunted by fear nor muzzled by affection, reward, or hope, of preferment; and therefore your lordships might safely believe them; particularly, their lordships had 3 several kinds of proofs. 1. Acts of Parliaments, judicial precedents, good reasons. 1. You have had many antient acts of parliament in the point, besides Magna Charta; that is, 7 acts of parl. which indeed are 37, Magna Charta being confirmed 30 times; for so often have the kings of England given their royal assents thereunto. 2. Judicial precedents of grave and reverend judges, in terminis terminantibus, that long since departed the world, and they were many in number. Precedents being 12, and the judges 4 of a bench, made 4 times 12 and that is 48 judges. 3. You have, as he termed them, vividas rationes, manifest and apparent reasons. Towards the conclusion, he declared, That they of the commons have, upon great study and serious consideration, made a great manifestation unanimously, nullo contradicente, concerning this great Liberty of the Subject; and have vindicated and recovered the body of this fundamental liberty, both of their lordships and themselves, from shadows; which some times of the day, are long, sometimes short, and sometimes long again; and therefore we must not be guided by shadows; and they have transmitted to their lordships not capita rerum, heads or briefs; for these compendia are dispendia; but the Records at large, in terminis terminantibus.’ And so he concluded “That their lordships are involved in the same danger, and therefore, ex congruo & condigno, they desired a conference; to the end their lordships might make the like Declaration as they had done, ‘commune periculum commune requirit auxilium;’ and thereupon take such further course, as may secure their lordships and them, and all their posterity, in enjoying of their antient, andoubted, and fundamental liberties.”
April 4, 1628.
In the Committee of the Whole House
Ed.: In a debate concerning subsidies and taxes.
Sir Edward Coke. This House was never yet divided. I came hither this day to give subsidies, and the King hath furtheredme. Ifwe shouldgoawaywithout giving, what rumors would there be, and what distractions in the town! Some have moved for poll money. I would have no new thing. I would have no constraint in wardships and subsidies. Let a man have a good pennyworth in his own land. Let it go by assessment. For poll money, there are divers precedents, but all with ill success. 4 Ric.2, num. 15, he demanded money by the poll. It caused a rebellion where the rude multitude chopped off many a good man’s head. 4 Hen.7, there was a new device to raise money, but the gentlemen of Yorkshire would not pay to that rate, whereupon the Duke of North-umberland being sent amongst them, they chopped off his head also. In the country (for which I serve) the gentlemen are not much aforehand, and the poor are very poor. I agree with him that rung at the fore-bell, 5 subsidies to be paid between this and Christmas.
April 8, 1628.
In the Committee of the Whole House
Ed.: In a debate on a grievance from the regulation and quartering of soldiers.
Sir Edward Coke. There is a secret of law what may a lieutenant do by law. Before 27 Eliz. there were no continued lieutenants but uponcertainoccasions, as occasion did serve, like the High Commission Court, which was never but upon some occasions, for it is very dangerous to have it standing; no appeal can be from it. In time of peace a lieutenant can do nothing but according to law. Pasch., 39 Edw.3 rot. 92, coram rege. Thomas Lancaster in Edw.2 made an insurrection and was taken flagrante crimine, and they gave judgment without indictment, and he was beheaded. Sed pro eo quod non fuit arrainatus sed secundum leges, etc., et cur res fuit aperta; ideo fuit reversum, that is, tempus pacis. If the courts of justice be open, none ought to be executed. Nothing must be done but according to law, and it is adjudged that he was unlawfully put to death. If there be an uproar, if the King’s courts be open you can do no martial law. 1 Edw.3, pars prima, Roger de Mortimer was executedbymartial law when the King’s court was open, and his heir had an assize and reversed it. Two laws will never stand in England: if the courts be open, no martial law. 14 Edw.3, 122, the is more plain. Pasch., 28 Edw.3, rot. 33, Worcester coram rege, Mortimer, Earl of March, was none of the best men, but you must punish him by law, else you make him innocent. He was taken and without judgment had his head chopped off, and his heir came and recovered all.
This billeting of soldiers in my house is dangerous. Domus est tutissimum refugium. One says, keep soldiers from idleness, or else nihil cogitat nisi de ventre et venere. You hear how fruitful they are. There are 4,000 men now billeted. No doubt but upon an humble petition his Majesty, hearing of it, will take a course with them. The King of Denmark wants men; send them thither. Let a subcommittee draw a petition. If this vermin be in the country, it will disable and dishearten the country. No doubt his Majesty will meet us half way.
April 9, 1628.
Ed.: Considering a disputed election result for Coventry, in which two sheriffs returned results.
Sir Edward Coke. The words of the statute are, citizens free and residents be chosen, and no other. The judgement of the election is the right of them that sit here, and not the return of the sheriff. When I was Speaker thisquestion was then, and it was answered the election is free and they may choose a stranger, and that law was made for the benefit of the citizen, and quilibet potest renunciare juri pro se ipso. They may disclaim their own liberty, and give away their own liberties, and when they choose them by way of implication this makes them freemen: and I was chosen in Cornwall, where I was never free nor resident, and I was then Speaker. The sheriff is not judge. He is to return according to the major number, and this House is to judge of it. In Buckinghamshire the county did elect one, and the sheriff would not return him because he was outlawed, and 1 Jac. he was here and punished.
This sheriff was called in and brought to the bar, and kneeled, and there confessed his fault that he did it out of ignorance, and confessed that Mr. Greene and Mr. Purefoy had the plurality of voices, but because they were not residents he did not return them.
Ed.: Considering a warrant to dispatch troops, by a lawyer who was not a lieutenant empowered to dispatch them.
Sir Edward Coke. This gentlemen made a warrant for fear. Habemus reum confitentem, he himself confesseth it. We have rules and they guide us. Melius est omnia mala pati quam malo consentire. It is writ in every honest man’s heart not to consent to ill. This man made a warrant when no warrant was made to him. 11 Ric.2, the judges, amongst whom was Bealknap, gave this opinion against his conscience and said it was out of fear; but at home he could not sleep but, said he, “I deserve 3 H’s: a hurdle, a halter, andahangman.” After 1 Hen. 4, in the parliament roll, it is said that no man hereafter shall excuse himself by fear. I say cowards fear; Vir sapiens est robustus. He will never shrink for fear. Nihil est timor sed perditio. It betrays succors. It is no answer to say he hath given his judgment from fear. I mislike a man that differs from me in fear. This man is not laicus but doctus. His credit is his life. Let our censure be ad correctionem, not ad destructionem. His offense is great; this almanac must serve for the meridian of England. This example will prove more and try more than twenty points of doctrine, and it will strike far. Solus Deus errare non potest.
April 10, 1628.
Ed.: Debating the King’s or the house’s authority to adjourn or recess by prorogue.
Sir Edward Coke. I am as tender of the privileges of this House as of my life, and they are the heart-strings of the commonwealth. The King makes a prorogation, but this House adjourns itself. The commission of adjournment we never read, but say, “This House adjourns itself.” If the King write to an abbot for a corody for a varlet, if it be ex rogatu, though the abbot yields to it, it binds not. Therefore I desire that it may be entered that this is done ex rogatu regis.
April 12, 1628.
Ed.: Responding to a message from the King, which attempted to pressure the house to grant the supply quickly and to ignore their grievances.
Sir Edward Coke. Crede mihi, bene qui latuit, bene vixit. I may say, bene dixit qui bene tacuit. This message may prove gracious. It stands on 5 parts. First, his Majesty tells us he hath given us timely notice of his supply and of his expectation. Secondly, that he finds a stop. This we must clear or refer it to a committee, that we chalk out our proceedings, and if we can, let us open our stop, and show that we so proceeded as never subjects did. Thirdly, that he expects that we apply ourselves to his Majesty’s affairs. My soul and all this House (for we have all one soul and one judgment and affection to the King) agree to that. Fourthly, that his Majesty’s affairs (his affairs are the affairs of the kingdom) and ours proceed together, and not one to interrupt the other. Let us speak it with all reverence, we were the unworthiest men that ever lived or took any English air if we give not supply to the King, and to make provision for our liberties. If we be not interrupted with grievances, we shall end all, if his Majesty will give us a gracious answer, and to expedite them will expedite us. As for the conclusion, that shall never fall out, God forbid. Let us with all speed address ourselves to show there is no stop on our side, and prepare our grievances.
April 14, 1628.
Ed.: On Lord Suffolk’s allegation that John Selden had destroyed records and had uttered sedition.
Sir Edward Coke. I persuade myself that that great Lord spake not of himself. Razing records is felony, and sure that noble Lord was informed that a record was razed, and that was felony. I expect that that worthy gentleman shall be an ornament to the law. But this toucheth not him but this House. The charge is heavy for razing records reported by a great Lord of noble blood. We are bound to stand by him and acquit him. Let us find out the author. If this be not righted, never employ any more. I will not speak of the Bishop of Durham, that lately presumed to offend in this kind. 21 Hen. 8, when the statute of nonresidence came in and bribes of the clergy suppressed, Bishop Fisher said it was want of faith; down goes the church, look to Bohemia. The House would not sit, but the Bishop made a friar’s distinction and said he meant not the House of Commons, but Bohemia, and this was then accepted of. I hope this will not hinder the business. Set down the words in verbis conceptis and desire justice of the Lords.
April 15, 1628.
In the Committee of the Whole House
Ed.: In debate on the regulation and quartering ofsoldiers,andthegrievance for it, against an argument for the King’s power, based on Coke’s report of Lord Sanchar’s case, 9 Reports 117.
Sir Edward Coke. I am glad there is no other authority than is cited. We touch not the King’s power. The King hath power to grant commissions of oyer and terminer, but the manner now is only the question. The King may pardon felonies, no man disputes it; but if a pardon be good in a particular cause, we do dispute every day. We do not innovate but what was done in the best kings’ times. The martial law belongs to the Constable and Marshal. We set down in what times the martial law is to be executed. Those commissions now granted are not in the old form. Admit the King hath a power, that power may be regulated by act of parliament. 13 Ric.2, cap. 2, the King, willing to ordain remedy, hath declared the power of the Constable and Marshal: that the Constable is to have cognizance touching deeds of arms and war out of the sea, and also war within the sea that cannot be determined by the common law. The military men may find fault with the gentlemen of the long robes that dispute this power. I honor that profession. We will teach them how to use martial law.
April 17, 1628.
In Conference with the Lords
Ed.: This is the second conference on the Liberty of the Subject.
Sir Edward Coke began thus:—‘Your lordships have well perceived how fairly, and with what respect, we have dealt with you, and ever shall. We brought up unto you what we had resolved on; and not only that, but the cause and grounds of our resolutions, and all our records; the like whereof was never done in parliament and we are to maintain what we did. The natural and the politic body have a great resemblance and proportion: and as the natural body hath symptoms of good or evil health, so we hold it a good symptom for us, that Mr. Attorney was so long and so loth to come to it. My lords, we will break order rather than defer the business. This conference is between the two houses. Mr. Attorney is no member of your house: he attends you; but his voice is with us: yet we are so willing to proceed, that we will take no hold of threads: let him say what he can, we will allow him a voice here, where he ought not to speak. We have delegatam potestatem, tantum permissam, quantum commissam; and therefore, for all new matter of this conference, we come with ears, not with tongues. For the resolutions of the judges, we are glad of them; and we are confident never a judge in England will be against what we have resolved. We can say nothing to it; it is new matter; but we will report it faithfully to our house.
Sir Edward Coke spake next. ‘As,’ said he, ‘the centre of the greatest circle is but a little prick, so the matter ever lies in alittle room;butweightybusinesses are spun out to a high length. This he said, was more weighty than difficult: his part was little; he would run over Mr. Attorney’s Reasons briefly; and, said he, ‘summa sequar vestigia rerum. This tenet of theirs was expressed shortly and significantly: it was a wonder for him to hear the Liberty of the Subject should be thought incompatible with the regality of the king; for nihil tam proprium est imperii, quam legibus vivere, saith Bracton. Nay further, Attribuit rex legi quod lex ei; dominium enim & imperium exercere, sine lege, non potest. —First he, said, Mr. Attorney seemed to intimate, that, in this speciale mandatum a cause should be conceived to blind the judges, when other matter was intended. He had heard indeed of that sentence, Qui nescit dissimulare, nescit regnare; but he held it no good divinity; for David, in the 119th Psalm, desires ‘a sound heart;’ that is, a heart without dissimulation: ergo no king should cover to dissemble in his mandates. Then for that case of rebellion, in Ireland, he said, it was bona terra, mala gens. But, he said, O’Donnel’s children lost nothing by the bargain; periissent nisi periisset: for they were better brought up here in the true religion, insteadofpopery.Besides, 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 marr so many statutes in continual use, against the old rule, ‘Ad ea quae 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 humanorum 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 Elizabeth say, that her father, king Henry the eighth. did hope to live so long, till he saw his face in brass; i.e. in brass money. 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 illegitimate. 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. and of Canutus, C. 8. that no money should be current but of gold and silver. And for Pardons; they are also limited, in wilful murder; as he proved out of the 4 and 25 Edw. 8. And this he said by the way. Now his part was short; he had before expressed what books and warrants they had for their tenet. If he be a little more earnest than seems fitting, he craves your lordships pardon; it concerns him near. He takes occasion here to say (under reformation) his reasons were not answered, or not fully. He touched upon his former reason from imprisonment; that it is a badge of a villain to be imprisoned without cause; that this and saller luy haut & bas sont propria quarto modo to villains; this he presents with all reverence; for we, said he, speak for the future times only: our king is good, and the council most gracious; but non nobis nati sumus; it is forourposterity that we desire to provide, rather than for ourselves, that they be not in worse case than villains; for to be imprisoned without cause shewn, is to be imprisoned without cause at all. De non apparentibus & non existentibus, eadem est ratio. —He agreed with Mr. Attorney in the enumeration of all the kinds of Habeas Corpus; and if they two were alone, he did not doubt but they should agree in all things. Only, he said, that for a freeman to be tenant at will for his liberty, he could never agree to it; it was a tenure that could not be found in all Littleton.—Then he also touched his former argument from universality; that the lords, the bishops, and all are jumbled 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 sit on the Bench, must be walking towards the Tower. 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 commonwealth could not subsist; but the question was, Whether they ought not to express the cause? He repeated again Plowden, 4 Eliz. pl. 236. The common law hath so admeasured the king’s prerogative, as he cannot prejudice any man in his inheritance. He cited also 42 Edw. 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 he expected: For a student’s report should not have been cited against him. He desired Mr. Attorney to remember, he had not veritatem ex cathedra; or infallibility of spirit; that was for the Pope. He said, he misgrounded his opinion upon 33 Hen. 6. which being nothing to the purpose, 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.”
—“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 haec 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 us, 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.
Ed.: In response to a call from the Lords for a further conference on the Liberties of the Subject, and a journal from the Commons of 1621, recording Coke’s views then of Magna Carta.
Sir Edward Coke. We speak our consciences as it is for the present. We sometimes change our opinions upon better reason. Also it is dangerous for us to allow this, for the Clerk with his pen may mistake in setting down words. Perhaps he mistook. Shall this conclude us? The Clerk may leave out somewhat, and say then some opinion were so. That shall not bind us. Let us answer that we will think of it, and give what answer shall be fit for us to give. It is not fit the book be any evidence against us. The Clerk’s office is not to take our sayings, but to take the orders of the House only.
April 18, 1628.
Ed.: Debating the Liberty of the Subject, Coke draws an analogy between the rights of the subject to refuse an office and Richard de Pembridge’s refusal of the Lieutenancy of Ireland.
Sir Edward Coke. For foreign employments there is a difference when the party is the King’s servant and when not. 46 Edw. 3, rot. 33 in dorso; this was the time when the law was in its height. Sir Richard Pembridge was a baron and the King’s servant and Warden of the Cinque Ports. He was commanded to go into Ireland and to serve as deputy there, penitus recusavit, propter quod idem rex reducens in memoriam incensa beneficia ei impensa et propter inobedientiam suam et ingratitudinem, etc. Note that Ireland is part of the kingdom of England. What punishment had he? He was not committed, yet the King was highly offended because he had offices and fees and lands pro servitio suo impenso. The King seized his lands and offices et conservationem Quinque Portuum et Castrum Pembroke et custodiam forestae, etc., et custodiam haeredis J.S. durante minoritate commissam sibi per regem, volens quod praedictus non intromitteret et dat officia, etc. I went to the parliament roll, and in 47 Edw. 3 there was another precedent for foreign employment. They that have offices and lands pro concilio aut servitio impenso, if they refuse, those lands and offices so given were seized, but no committment.
April 18, 1628
In the Committee of the Whole House
Ed.: In a debate on the jurisdiction of martial law over conscripts, Coke responds to an argument by Sir Henry Martens, that martial law displaces common law.
Sir Edward Coke. I shall maintain jus belli. Maxime conservanda sunt belli jura. The civilian that expounded 13 Ric. 2, his exposition corrupts the text. God send me never to live under the law of conveniency or discretion. He saith also both laws stand together cumulative. Bring it to a court of justice. Shall the soldier and justice sit on one bench? The trumpet will not let the crier speak, non bene convenient. He vouched 4 et 5 Phil. et Mar. and the proviso there. That is one of the causes the statute was repealed. This is to go out of the text. The question must be determined by the law of England, and the martial law is bounded by it. If you bring me other laws it is not to the purpose. The common law is the great and principal law. Take a case mixed with the civil law, the common law carries it, 22 Hen. 4. The civilians enjoy their lands by the common law, and not by the civil law. Quod intempestivum injucundum. I will first show what is the time of peace, which is when the courts of Westminster are open, for when they are open then you may have a commission of oyer and terminer; and where the common law can determine a thing, the material law cannot. Pasch. 14 Edw. 3, in the Exchequer, in the Earl of Kent’s case. Hen.2 grants a fair to St. Ives rendering 50 li. per annum, and after, by another charter, he granted that if the profits of the fair be interrupted by reason of war, he should not pay the rent after the King grants the rent to the Earl of Kent. In a scire facias the abbot pleads that it was tempus belli, and thereupon issue was joined. 18 Edw. 2, “Quare Impedit,” 175, the issue was passed if it were a time of war or of peace, and nothing is there ajdudged; but in 14 Edw. 3 the record saith that the said issue ought to be judged by recorda regis, it shall not be tried by a jury but by the records. Whether martial law may be in time of peace, 21 Edw. 4, 10, de termino Trinitatis nihil, quia tempus duelli et non tenuit. 1 Hen. 4, all the appeals of things done within the realm shall be tried by the good law, so called in opposito in the cruel war. If two men go into a foreign nation and there fight and one is killed, the martial law tries it by way of appeal according to the civil law. 13 Hen. 4, fol. 5, accordant. Drake slew Doughty beyond sea. Doughty’s brother desired an appeal in the Constable and Marshal’s court, and Wray and the other judges resolved that he might there sue. We make no law, we must not mediate ubi lex non distinguit. To hang a man tempore pacis is dangerous. I speak not of prosecution against a rebel. He may be slain in the rebellion, but after he is taken he cannot be put to death by the martial law. Pasch., 39 Edw. 3, rot. 49; 28 Edw. 2, num. 13, when the courts are open martial law cannot be executed. 5 Hen. 4, num. 39, Wilman’s case, the Constable and Marshal desired an addition to their commission, and they proceeded against some according to that power; but because it was not according to their ancient power it was void, for they cannot do anything according to that additional power, and there was a prohibition to stay their proceedings by virtue of that additional power. 6 Hen. 7, 4, 5, the King granted a leet and that there should be cognizance of rape, and the grant was void. So, if the King grant to the justices of the Common Pleas to hear felonies. The civilian provided for himself, and said the commission is only for actual soldiers, but the commission goes to all soldiers, and all that shall join with them. And who shall judge of this, who are soldiers and who they are that join with them? There are now 60 articles to which that commission hath reference; 40 of them are written in blood. How shall the soldier know how to obey them? They are not under the Great Seal. The Council of York had a commission with reference to instructions. When I was judge in the Common Pleas, we granted prohibitions, and after, King James caused them to be added to the commission itself.
April 21, 1628.
Ed.: Reporting on the conference with Lords, held on April 17.
Sir Edward Coke. I will tell you how I began. The Lords and we stayed an hour for Mr. Attorney before he came. When he came I made a protestation, and I observed it was a good symptom, he was so loath to come to it. I said he was by order of parliament not to speak. If he had any voice at all, his voice was here with us; but the case was such that to expedite it we would break any order. My part fell into reason. He said there was an incompatibility between a monarchy and our resolution. But I said nihil est tam proprium monarchiae quam leges et sine legibus non potest esse imperium. He said that sometimes the true cause must be concealed and hid. But I said that holds not in law; qui nescit dissimulare nescit vivere. He put a case of Irish rebels that were put in the Tower. I answered it was charity to keep them. And Sir Dudley Digges answered they are to lie there till they find good sureties for their good behavior, which they are not able to do, and also ad ea quae frequentius accidunt jura adaptantur, and that case has not fallen out but seldom. He leaped over seven statutes by the art of simulation, and four cases he put by way of simile, as money, the King may make it of what metal he please, etc., and therefore he may imprison. It is a plain non sequitur. But I answered this case of coining by the statute of 25 Edw. 3 and 9 Hen. 5, all money must be of the lay of sterling. I told him what I heard Queen Elizabeth say of her father’s nativity that was cast, and that he should live till he saw his face brass, and so he did. Copper payment is no payment. But it was further answered, admit the King abase his money, he himself suffers more than the subject. So if he make war (which was another of the Attorney’s similes) he and the subject are both involved there. To pardon a malefactor, or to make a denizen (which were his other cases), the King may lose by it. Therefore may he imprison? A strange argument, a simile. He said the judges knew wherefore Monson was committed, so I said the judges know wherefore the gentlemen were committed.
Then came a serjeant at law. He had 5 damnable and desperate reasons.
1. That our conclusion tended to an anarchy and not to a monarchy.
2. If this be yielded to, it is to put the sword into the King’s hand with one hand, and to pull it out with another.
3. You must allow the King to govern by the law of state or else there is no power there.
4. This question is too high a question to be determined where the persons are to receive irreparable loss.
5. This raised up dust in all our faces. If the King demanded money by way of loan and the party refuse and be committed, will you have the cause brought up in a habeas corpus?
So he dealt most unjustly and rashly, and I move that we may have a conference with the Lords about him. As for the resolution of the judges, they say they neither determined one nor other, and it is no judgement. They comply with us.
April 22, 1628.
Ed.: Prior to his speech, committing a bill, the speeches were these:
Mr. Jordan. An act for the further punishing of adultery and fornication.
Mr. Jordan. I did always look that this bill should find many opposers but, Mr. Speaker, this is no laughing matter. I humbly move according to the motion of a lawyer in the last parliament that those that find themselves guilty of this vice would speak against the commitment of this bill, but those that are against it would speak for it.
They cry, “Commit it! Commit it!”
Sir Edward Coke. I see you all cry, “Commit it! Commit it!” and you laugh at it as you say so but, good Mr. Speaker, it is the bill, not the sin, which we would have committed.
April 25, 1628.
In the Committee of Grievances
Ed.: In debating the effect of a Common Council which was an act by the City of London, to imprison a man for non-payment of forced loans assigned to the City, a portion of which he was involuntarily assigned.
Sir Edward Coke. This is of more weight than difficulty. ACommon Council may take place in four cases: 1, for the government of the City according to the laws of the realm. 2, for the common profit, as for mending ways, etc., so as it exceed not law and reason. 3, to regulate trades and to prevent fraud, as a halfpenny for a cloth that is measured and searched, etc. 4, an ornament to the City upon a victory. But to compel a man to lend money to purchase land, etc., it is altogether unlawful. The King dealt only with the Mayor and Court of Aldermen, and not with this party.
April 26, 1628.
In the Committee of the Whole House
Ed.: Debating proposals from the Lords sent to commons as a counteroffer to their proposals on the Liberty of the Subject. The three propositions were to declare Magna Carta and six later statutes to be still in force, that according to Magna Carta, the subjects have a fundamental propriety in their goods and liberty in their person, that he confirms these as in ancient times, that he will act according to common law, and that he would not extend his prerogative to diminish the propriety in goods or liberty of their persons.
Sir Edward Coke. This is case of great consequence, and we are to deal tenderly. This is the wheel that turns that great business of the House. That that I speak is for future times. We see what an advantage they have that are learned in the law in penning articles, above them that are not, how wise soever. Our resolutions are plain and open and clear. What theirs are we are to dispute. We have resolved nemine contradicente, “that no free man,” etc. This is according to my conscience and knowledge. The first proposition for Magna Carta and the six other statues, the words are good, but they conclude nothing in what cases they are in force. Is it if any be imprisoned without cause? And there’s not a word of that. Also they conceive these statutes are explanatory, and they mention not 36 Edw. 3. I delight in the King’s grace, but will you have Magna Carta as a grace? Our petition is a petition of right, and the King is to do it in right.
For the second proposition, that “according to Magna Carta” we have “propriety,” etc., that determines nothing. The question is what is lex terrae ? Therein some differ. If I have any law, lex terrae is the common law.
For the third, we shall out of grace enjoy our ancient fundamental liberties. Is it not right? I know not what “fundamental” is. It is Holborn Latin. I understand not fundamental liberty or propriety. We gain nothing by all those. He will “graciously” confirm all our “just liberties.” We are in a round. The King’s Council say they may commit us without cause shown, and all is out of grace, and as our ancestors did under the King’s “best progenitors.” Who are his best progenitors, they that had best possessions, or best virtues? I never read who was the best king. Also there wants the word “predecessors.” The bishops therefore are gone.
The fourth has more danger in it than is meant, that within “all cases” within “the common law,” etc. That concerns the liberty of the subject. His Majesty would “proceed,” etc. Shall we seclude all the statutes and customs, and he not proceed according to the common law? And yet the common law must now yield to the law martial. I am sure the martial law is here meant. The common law must yield to it.
For the fifth, I will point at it. I understand not much in it. His Majesty’s prerogative “intrinsical.” It is a word we find not much in the law. It is meant that intrinsical prerogative is not bounded by any law, or by any law qualified. We must admit this intrinsical prerogative an exempt prerogative, and so all our laws are out. And this intrinsical prerogative is entrusted him by God and then it is due jure divino, and then no law can take it away. Then it follows that for defense, etc., if his Majesty “shall find” cause to commit, he may. We are but where we were. We cannot yield to this, that he should have power to commit any, and within “convenient time” he shall declare the cause; and this is that we all strive for, and the kings contended for it before Magna Carta, and could never prevail; and the confirmation is in general to be shown, if it be per mandatum domini regis, or “for matter of state”; and then we are gone, and we are in a worse case than ever. If we agree to this imprisonment “for matters of state” and “a convenient time,” we shall leave Magna Carta and the other statutes and make them fruitless, and do what our ancestors would never do. We shall say “for matter of state” and “a convenient time” a man maybe committed without cause. 20 Hen. 3, there was a little point in law to be changed for antenati before marriage. Sed responderunt omnes comites et barones (there was no duke nor marquess then), “Nolumus leges Angliae mutare.” I would never yield to alter Magna Carta. We are now about to declare and we shall now introduce and make a new law, and no king in Christendom claims that law, and it binds the subject where he was never bound. Never yet was any fundamental law shaken but infinite troubleensued. The statute of non clameum: the common law was that you were to make claim in one year: that was taken away, and then came such troubles as they were never quiet till 4 Hen. 7. So the law was that no man should will his lands by testament: now we have that law altered, and now five parts of the suits in Westminster Hall are upon that point. It is true rerum progressus ostendunt multa quae [in] initio praecaveri non possunt. Shake Magna Carta, and we know what will come of it. You have a rule in building, lapis male positus non est removendus. Have we come up thither, and declared what the law is, and shall we go back and consent of these commitments? Consider the trust we reposed in the Lords. We showed them our evidence. We desire them to declare the like, but to be against us we begged it not. If the Lords will not comply with us, but make any hesitation, I doubt not our gracious Sovereign will comply with us.
April 28, 1628.
Ed.: Discussing a subpoena of member Sir Simeon Steward, who wasbound by a recognizance not to assert his privileges as a member of the house.
Sir Edward Coke. There was a fault on all sides. The recognizance is upon record. He is now bound not to make any use of his privilege. A man elected cannot refuse; he must serve his trust. He can make no proxy; he sits for many a thousand. It was ill done to do this. Let us send for the recognizance.
In the Committee of Lawyers
Ed.: Later that afternoon, the subcommittee of lawyers met to discuss a bill more fully protecting the Liberty of the Subject under Magna Carta. Selden spoke first of the need to set down Magna Carta in the form of 13 Hen. 4.
Sir Edward Coke. 1 Hen. 8, it was in the parliament roll that no loan or privy seal shall be without parliament. When I was Attorney I saw it, but now it is lost. 5 Ric. 2, num. 11, divers merchants are undone by loans. 9 Ric. 2, rot. 60, to the same purpose. 13 Hen. 4, num. 10 et 18, no loan or aid for guarding of the realm. Westminster 1, cap. 1, none shall come to eat in the house of any prelate or any other. Let us recite all these laws in the bill.
April 29, 1628.
In the Committee of the Whole House
Ed.: Here, Coke reports the framing of the Petition of Right to the Committee of the Whole House.
At a committee for the whole House concerning the framing of a bill for the liberties, Sir Edward Coke reports from the committee.
Sir Edward Coke. First, they agreed to set down 3 capita: 1, propriety of goods; 2, liberty of person; 3 and lastly, billeting of soldiers; and also the particular statutes that are in force: Magna Carta, cap. 29; 25 Edw. 1, the first part of it. 34 Edw. 1, De Tallagio Concedendo; 5 Edw. 3; cap. 1; 25 Edw. 1, num. 16; et 25 Edw. 3, cap. 4; 28 Edw. 3; 36 Edw. 3, num. 9, 20 et 24; 37 Edw. 3; 42 Edw. 3, num. 12; 1 Ric. 3, cap. 2. In this law we looked not back, for qui repetit separat; and we have made no preamble other than the laws before mentioned, and we desired our pen might be in oil and not in vinegar.
The bill was exhibited and read. An act for the better securing of every free man touching the propriety of his goods and liberty of his person:
Whereas it is declared and enacted by Magna Carta that no free man is to be convicted, destroyed, etc.: and whereas by a statute made in Edw. 1, called De Tallagio non Concedendo, and whereas by the parliament 5 Edw. 3 and 4 Edw. 3 and 29 Edw. 3, etc.; and whereas the said Great Charter was confirmed and that the other laws, etc., be it enacted that Magna Carta and these said acts of explanation and other the acts be put in due execution, and that all judgments, awards, and rules given or to be given to the contrary shall be void; and whereas by the common law and statutes it appears that no free man ought to be committed by command of the King, etc., and if any free man be so committed, and the same returned upon a habeas corpus, he ought to be delivered or bailed.
Be it enacted now that no free man shall be committed by the King or Privy Council, and the cause ought to be expressed; the same and no other being returned upon a habeas corpus shall be delivered or bailed.
And whereas by the common law and statutes every free man has a propriety in his goods and estate, as no tax, tallage, etc., nor any soldier can be billeted in his house, etc.; be it enacted that no tax, tallage, loan shall be levied, etc., by the King or any minister without act of parliament, and that none be compelled to receive any soldier in his house against his will.
Sir Edward Coke. If the King should have this prerogative, he should lose most by it, and if the naked truth could appear to his Majesty he should see that no flowers of his crown should be violated, and the subject made worse than a villein. But for that that no cause should be shown upon the commitment, the honest man and the honest judge shall be most miserable, he that has an upright heart to God. I was committed to the Tower and all my books and study searched, and 37 manuscripts were taken away, and 34 were restored, and I would give 300 l. for the other 3. I was inquired after what I had done all my life before. So then there may be cause found out after the commitment, and the commitment is fearful. All men’s mouths are open against the party, and our friends afraid as well to come to us. I think the acts of parliament include these questions in substance, but it is only implied. It is not now without occasions that we insist upon this. Were there ever such violations offered? Were there ever such commissions and oaths?
Objection [by Sir Dudley Digges]: Shall we do that to the King now that never was done before?
Answer: Why, was there ever such violations? And is not the King named in Magna Carta, at least by way of implicity? And 36 Edw. 3 and 25 Edw. 3 names the King and his Council.
May 1, 1628.
In the Committee of the Whole House
Ed.: Discussing a message from the King to the House asking whether the House would not accept his promise to abide by his word to abide by the law.
Sir Edward Coke. We receive comfort from his Majesty’s gracious care over us. We dispute here of our liberties, but his Majesty’s care watches over us. Now is the axe laid to the root of the tree. That that proceeded from his Majesty is great. His Majesty desires us to let him know whether we will rely upon his gracious promise or no. Let us consider of it against tomorrow.
May 2, 1628.
In the Committee of the Whole House
Ed.: Debating whether to accept the King’s word or to press for the Petition of Right.
Sir Edw. Coke. That Royal Word had reference to some message formerly sent: his majesty’s word was, That they may secure themselves any way, by bill, or otherwise, and he promised to give way to it: and to the end that this might not touch his majesty’s honour it was proposed, that the bill come not from this house, but from the king: ‘We will and grant, for us and our successors, that we and our successors will do thus and thus.’ And it is to the king’s honor that he cannot speak but by record.
Others desired the house to consider, when and where the late promise was made: was it not in the face of both houses? Cruel kings have been careful to perform their promises; yea, though they have been unlawful, as Herod: therefore, if we rest upon his majesty’s promise, we may assure ourselves of the performance of it. Besides, we bind his maj. by relying on his word. We have laws enough; it is the execution of them that is our life, and it is the king that gives life and execution.
May 3, 1628.
In the Committee of the Whole House
Ed.: On the same matter of relying on the King’s word or insisting on the Petition of Right.
Sir Edward Coke. Misconceiving is the mother of misdoing. Sure I am misreports bring forth delays. We will not Strain or enlarge anything. We agree upon the substance.
Sir Edward Coke. I find we err much in sending messages. 2 Hen. 4, num. 10, the King ought not to take any information what is done here till it be resolved here.
Ed.: On the same matter.
Sir Edward Coke. Futura sunt contingentia. Let us absolutely confess we do not encroach on his prerogative.
May 6, 1628.
In the Committee of the Whole House
Ed.: On the same matter.
Sir Edward Coke. Let us go in a parliamentary way. For any not to rely on the King it is not fit trust. In him is all the confidence we have under God. He is God’s lieutenant. Trust him we must. Was it ever known that general words were a sufficient satisfaction to particular grievances? Was ever a verbal declaration of the King verbum regium? When grievances be, the parliament is to redress grievances and mischiefs that happen. Imprisonments are our grievances, billeting of soldiers, unnecessary loans, etc. Did ever parliament rely on messages? They ever put up petitions of their grievances, and the King ever answered them. The King’s answer is very gracious, but what is the law of the realm? That is the question. I put no diffidence in his Majesty. The King must speak by a record, and in particulars, and not in general. Let us have a conference with the Lords, and join in a petition of right to the King for our particular grievances. Did you ever know the King’s messages come into a bill of subsidies? All succeeding kings will say, “You must trust me as well as did your predecessors, and trust my messages.” But messages alone never came into a parliament. Let us put up our petitions; not that I distrust the King, but because we cannot take his trust but in a parliamentary way.
May 7, 1628.
In the Committee of the Whole House
Ed.: Discussing the Commissions of the King’s Lieutenants and the Instructions for Martial Law.
Sir Edward Coke. It is agreed that the articles are not now for this climate. They are not under the Great Seal, and so no man can have warrant from them, and so not according to law. For the commission itself—the learned man himself disliked these words, that it go to any but to soldiers—then this commission must be against law. 41 Edw. 3 an annuity granted for counsel; the counsel is to be given in that profession the grantee is of. Secundum discrecionem vestram—it is per leges to discern quid sit justum, but it is a great difference that is between jurisdiction and execution. Execution is in debellando et in bello when it is flagrante crimine, but may they now in time of peace execute this martial law? Without all question they cannot. I observe in all the commissions, if it be for a thing done within the realm there the commissions go only per incarceracionem corporis, etc., judicandum legibus. Show me an act of parliament against 5 Hen. 4, no. 24, 25.
May 9, 1628.
In Conference with the Lords on May 8, 1628.
Ed.: Presenting the Commons’ view to promote the Petition of Right.
I pray your Lordships to excuse us, for we have been this day till one of the clock about the great business, and (blessed be God) we have dispatched it in some measure; and before this time we were not able to attend your Lordships, but I hope that this meeting will prove to be a great blessing to us. My Lords, I am commanded from the House of Commons to express the singular care and affection they have of concurrence with your Lordships in these urgent affairs and proceedings in this parliament, both for the good of the commonwealth and principally for his Majesty. And this I must say in this particular: if we had hundreds of tongues we were not able to express that desire which we have of that concurrence with your Lordships; but I will leave that without any further expression.
My Lords, it is evident what necessity there is, both in respect of ourselves and our posterities, to have good success of this business. We have acquainted your Lordships with the reasons and the grounds, and after we had some conference we received from your Lordships five propositions, and it behooves me to give your Lordships some reasons why you have not heard from us before now. For in the meantime, as we were consulting of this weighty business, we have received divers messages from our great sovereign the King, and they consisted of five parts:
First, that his Majesty would maintain all his subjects in the just freedom both of their persons and estates.
Secondly, that he will govern us according to the laws and statutes.
Thirdly, that we shall find much confidence in his royal word, (I pray observe it).
Fourthly, that we shall enjoy all our rights and liberties with as much freedom as ever any subjects have done in former times.
Fifthly, that whether we shall think it fit, either by way of bill or otherwise, to go on in this great business, his Majesty would be pleased to give way to it.
These gracious messages did so work upon our affections that we have taken them into deep consideration. My Lords, when we had those messages (I deal plainly, for so I am commanded by the House of Commons), we did consider in what way we might go for our most secure way (nay, yours). We did think it the safest way to go in a parliamentary course, for we have a maxim in our House of Commons, and written on the walls of our House, that old ways are the safest and surest ways.
And at last we fell upon that which we did think (if that your Lordships did consent with us) is the most ancient way of all, and this is, my Lords, via fausta, both to his Majesty, to your Lordships, and to ourselves; for, my Lords, this is the greatest bond that any subject can have in any parliament: verbum regis. This is an high point of honor, but this shall be done by the Lords and Commons assented unto by the King in parliament. This is the greatest obligation of all, and this is for the King’s honor and our safety.
Therefore (my Lords), we have drawn a form of a petition, desiring your Lordships to concur with us therein. For we do come with an unanimous consent of all this House of Commons, for there is great reason your Lordships should do so, for your Lordships be involved in the same. Commune periculum requires commune auxilium. And so I have done with the first part. And now I shall be bold to read that which we have so agreed on. I shall desire your Lordships that I may read it, which he did, and is as follows.
Ed.: Coke’s language following is the Petition of Right, as considered by the Lords and as adopted, modified only by two lines added at the Lords’ behest on May 11 and 20. The final petition was adopted on June 2.
To the King’s most excellent Majesty:
Humbly show unto our Sovereign Lord the King, the Lords spiritual and temporal, and Commons in this present parliament assembled, that whereas it is declared and enacted by a statute made in the time of the reign of King Edward the first, commonly called Statutum de Tallagio Non Concedendo, that no tallage or aid should be laid or levied by the King or his heirs in this realm without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other the free men of the commonalty of this realm, and by an authority of parliament held in the XXVth year of the reign of King Edward the Third, it is declared and enacted that from thenceforth no person should be compelled to make any loans to the King against his will, because such loans were against reason and the franchises of the land. And by other laws of this realm it is provided that none shall be charged by any charge or imposition called a benevolence, or by such like charge; by which the statutes beforementioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom, and they should not be compelled to contribute any tax, tallage, or aid, or other like charge not set by common consent in parliament. Yet, nevertheless, of late divers commissions directed to several commissioners in several counties, with instructions, have issued; by pretext whereof your people have been in divers places assembled and required to lend certain sums of money to your Majesty. And many of them, upon their refusal so to do, have had an unlawful oath administered unto them, and have been constrained to become bound to make appearance and to give attendance before your Privy Council, and in other places, and others of them have been therefore imprisoned, confined, and sundry other ways molested and disquieted; and divers other charges have been laid and levied upon your people in several counties by lord lieutenants, deputy lieutenants, commissioners for musters, justices of peace, and others by command and direction from your Majesty, or your Privy Council, against the laws and free customs of the realm.
And where also by the statute called the Great Charter of the Liberties of England, it is declared and enacted that no free man may be taken or imprisoned, or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land; and in the 28th year of the reign of King Edward the Third it was declared and enacted by authority of parliament that no man, of what state or condition that he be, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death without being brought to answer by due process of law.
Nevertheless, against the tenor of the said statutes, and other the good laws and statutes of the realm to that end provided, divers of your subjects have been of late imprisoned without any cause shown, and when for their deliverance they were brought before your justices by your Majesty’s writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty’s special command, signified by the lords of your Privy Council, and yet were returned back to several prisons without being charged with anything to which they might make answer according to the law.
And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn against the laws and customs of this realm, and to the great grievance and vexation of the people; and whereas also by authority of parliament, in the 25th year of the reign of King Edward the Third, it is declared and enacted that no man shall be forejudged of life or limb against the form of the Great Charter and the law of the land; and by the said Great Charter and other the laws and statutes of this your realm, no man ought tobeadjudged to death but by the laws established in this your realm, either by the customs of the said realm, or by acts of parliament; and whereas no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm; nevertheless, of late time divers commissions under your Majesty’s Great Seal have issued forth by which certain persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners or other dissolute persons joining with them as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial. By pretext whereof some of your Majesty’s subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought to, have been judged and executed.
And also sundry grievous offenders, by color thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm by reason that divers of your officers and ministers of justice have unjustly refused or forborne to proceed against such offenders according to the said laws and statutes upon pretense that the said offenders were punishable only by martial law, and by authority of such commissions as aforesaid; which commissions, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm.
They do therefore most humbly pray your most excellent Majesty that none hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament. And that none be called to make answer, or to take such oath, or to give attendance, or to be confined, or otherwise molested or disquieted concerning the same, or for refusal thereof. And that no free man, in any such manner as is before mentioned, be imprisoned or detained. And that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come. And that the aforesaid commissions for proceeding by martial law may be revoked and annulled. And that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed, as aforesaid, lest by color of them any of your Majesty’s subjects be destroyed or put to death contrary to the laws and franchises of the land.
All which they most humbly pray of your most excellent Majesty as their rights and liberties according to the laws and statutes of this realm. And that your Majesty would also vouchsafe to declare that the awards, doings, and proceedings to the prejudice of your people in any of the premises shall not be drawn hereafter in consequence or example. And that your Majesty will be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honor of your Majesty and the prosperity of this kingdom.
May 12, 1628.
Ed.: Discussing a hearing on procedural failings in the election in Cornwall, the deputy lieutenants of Cornwall were summoned to appear before the house. On the question, which they raised by letter, of whether they may be represented by counsel.
Sir Edward Coke. To say a man shall have counsel in every cause—if in the Star Chamber they confess it, they are to be ore tenus and to have no counsel; and if in any action a man confess the fact, he is to have no counsel for so much as he has confessed.
May 13, 1628.
Ed.: The deputy lieutenants of Cornwall refused to appear before the house, claiming their service to the King required they stay in Cornwall, for which they were condemned to the Tower, after which Coke observes . . .
Sir Edward Coke. I had rather give account to God for mercy than forjustice. The end of all punishment is poena ad paucos, metus ad omnes. These gentlemen have ill fortune that have light[ed] on gentlemen of this House of great worth and service. That that moves me is that they have entered into the King’s breast as to say: His Majesty will be justly provoked, and suppose that we countenanced you against him. Thus they climb up to the King’s heart. The acknowledgment below draws no blood. Let them do it.
May 17, 1628.
Ed.: On a petition by Turkish merchants, imprisoned for nonpayment of an import on currants.
Sir Edward Coke. This petition brings in question the right of impositions which is clear cannot be imposed, and so this House did resolve. If impositions be set they will be multiplied, and when trade is overburdened merchandise will cease. For the imposition upon currants, I know Fleming was then Chief Baron, and they conferred with other judges who differed from them in their opinion. This 2s. is now super-added. We know the King’s wants to be great, and so never questioned this revenue. Shall this moderation of ours bring in these new impositions? Why is this seizure? The goods ought not to be seized for nonpayment of the new imposition. Let the parties have a replevin.
Ed.: Reporting on a Conference with Lords held mid-day on the pending Petition of Right.
Sir Edward Coke reports from the conference that the Lord Keeper spoke to this purpose.
First he mentioned the great care and correspondency of the Houses, then the happy hopes of a good issue for, at the last conference, he said, the study was to sweeten all things for the King, and since that the debate of the Upper House had been wholly spent in the argument of imprisonment. The Lords, he said, had resolved nothing conclusively, but by way of addition, to make the petition easy and passable with his Majesty, presented some few words to be added at the end. The Lord Keeper read those words for, he said, he would not alter the narrative nor the prayer of the petition. Lastly he desired all convenient expedition, and left it to the House to consider whether theywould sit this afternoon or no; if they would, the Lords would do so also. The words of addition were these:
We humbly present to your Majesty this petition not only with a care of preserving our own liberties, but with due regard to leave entire your sovereign power wherewith your Majesty is trusted for the protection, safety,andhappiness of your people.
May 19, 1628.
Ed.: Debating a bill to remove the four counties nearest to Wales from the jurisdiction of the Marches of Wales.
Sir Edward Coke. We are about the King’s revenue, let us withdraw unnecessary expenses. This question grows upon 23 Hen. 8, that there shall be a President and Council of Wales and the Marches. I know these counties have ever sued to be discharged, but these four counties were never part of the Marches of Wales 18 Edw. 2, Ass, 82. ass. direct al vic de Shropshire; vic returne, que le lieu ou fuit in le Marches de Wales ubi breve domini regis non currit. 1. E. 3. dower direct al vic de Shropshire, et fuit dit que it gist en lieu ou de Marches de Wales ubi breve domini regis non currit, 7 Edw. 3, 9, acc. 3 Ric. 2. num. 29 et 30, parliament roll, les counties complain que ils fuer [ ] counties et nul parte del Wales, et ils prie aide par les inroades, etc. 6 Hen. 4, 9, scire facias, vic de Salop returne que il fuit in Marches de Wales et breve domini regis non currit la. 23 Hen. 6., cap. 5; 32 Hen. 6, cap. 4, Marches est ubi limits, etc. as Northumberland is part of the Marches of Scotland. There was an Earl of the Marches but he was never Earl of Shropshire. There is a council in York. 32 Hen. 8., in the general pardon, the King was at a great charge to found a council in Cornwall, etc. Then the Cornish men petitioned the King they might live under the law, and not under a president.
Ed.: Reporting on the conference with the Lords, held earlier that day, on the Petition of Right and the Lords’ proposed amendment.
Sir Edward Coke reports from the conference. We began and showed the reasons and grounds we had to refuse their propounded alterations. We began with the word “pretext” but that must be construed according to the precedent matter. But for that word we were content to yield to it.
Secondly, for that the loan was “upon urgent occasions,” etc., to that we said [first,] all loans were against law. Secondly, it might imply some loans upon pressing occasions were lawful. Thirdly, it was not agreeable to our conclusion for our prayer was, “that no loan,” etc. Fourthly, if we allege urgent reasons, reasons of state, we must look into what is passed that may hinder us in our ends. The Bishop of Lincoln said that this was but to make the matter more sweet and passable, and that the King was jealous of his honor and desirous to render himself fair to posterity. But the good Bishop said it was no weighty matter but, he argued, if the King cannot take loans, no not even when urgent and pressing occasions were, [then] much less when there were none. I replied that optandum in legibus ut judici quam paucissima relinquuntur, and let us leave nothing to posterity, and it is not a fit shaft for our quiver for us, the House of Commons, to say lands were “upon urgent affairs,” etc.
Thirdly, “unlawful oath,” we think it is unlawful, and I said there was never a Lord there but thought so. The Lord Keeper said this oath was not in the commission but in the instructions. Also, the Lord President said that oath was but to discover a practice in some that dissuaded, and not for them that refused. The Lord Saye replied that it was his own collection, and that he had no warrant from the House so to say. Also they say that the Lords, most of them, were employed in the loan. I replied, under terms of sweetness we must not go from our ends; and though the words were not in the commission, yet they were in the instructions that were printed, and if the party refused, every such party was examined, nay witnesses were examined. These were primae impressiones, and let us principiis obstare. As for the Lords, I would not meddle with them. But for the gentlemen that were used therein, I said I hoped well of this parliament, and that a general pardon will amend all; but in itself the Great Seal is to protect men from wrong. This seal was used to oppress men.
Fourthly, for the words “Privy Council” they would have it “at London.” I said the truth of the cause was not at London, but before the Council. Also, we hope this will be a law for hereafter.
Fifthly, for the words “superior power.” I said that was to leave a word for the King and his council, but I think this and the former was yielded unto by the Lords.
Sixthly, as for martial law. I said it is difficult to say when the King’s army is on foot, and how many men make an army, and if they be on foot. If they be not in war they can hang none. The Lord Keeper replied if a rebellion be in the farthest parts, if you stay for an attainder, all is lost. I answered, there is a difference. If they resist the King’s power you may slay them in the field, but for jurisdicton afterwards they must be tried by law. Also, we complain of what is done in time of peace. The noble Duke said, I would fain know, if a general lead an army and there are those that are disobedient, that will obey nothing so that the expedition does nothing but bring home damnum et dedecus, shall we come to the common law? I asked if this case were within the land or without. He said he meant without. Then, said I, the Marshal and Constable may try it. The Lords said they came with an intent to bring all to a happy end, and that they would acquaint their House with what was done. The Duke said that he would do his best service to make a good end of this parliament, and to do the best service he could for King and people.
As for the word “pretext,” it is ordered that it be yielded unto.
May 20, 1628.
In the Committee of the Whole House
Ed.: Reporting on that day’s conference with Lords.
Sir Edward Coke reports from the conference with the Lords. Lord Keeper 1, delivered their desire of correspondence with this House; 2, that the Lords agreed to all parts of our petition and waived all their alterations, except the word “pretext” and the word “unlawful.” 3 reasons to alter that last word: 1, it was too high and too rigid; “unlawful” may be against the law of God, nature, and reason; 2ly, it may be understood against the law divine and moral; [3ly] that they will instead of “new and unlawful” change it to an oath “not warranted or warrantable by the laws or statutes of this realm.” Desired expedition; if we would sit this afternoon they would. Desired to know our mind in that.
In the Committee of the Whole House
Ed.: Debating the House’s response to the Lords’ response, and arguing against their broad amendment by adding a new final paragraph.
Sir Edward Coke. This is magnum in parvo. This is propounded to be a conclusion of our Petition. It is a matter of great weight; and, to speak plainly, it will overthrow all our Petition; it trenches to all parts of it; it flies at Loans, at the Oath, at Imprisonment, and at Billetting of Soldiers: this turns all about again. Look into all the petitions of former times; they never petitioned wherein there was a saving of the king’s sovereignty. I know that prerogative is part of the law, but “Sovereign Power” is no parliamentary word. In my opinion it weakens Magna Charta, and all the statutes; for they are absolute, without any saving of “Sovereign Power”; and should we now add it, we shall weaken the foundation of law, and then the building must needs fall. Take we heed what we yield unto: Magna Charta is such a fellow, that he will have no “Sovereign.” I wonder this “Sovereign” was not in Magna Charta, or in the confirmations of it. If we grant this, by implication we give a “Sovereign Power” above all laws. Power in law, is taken for a power with force: the sheriff shall take the power of the county; what it means here, God only knows. It is repugnant to our Petition: that is, a Petition or Right, grounded on acts of parliament. Our predecessors could never endure a salvo jure suo, no more than the kings of old could endure for the church, Salvo honore Dei & ec-clesiae. We must not admit of it, and to qualify it is impossible. Let us hold our privileges according to the law: that power that is above this, is not fit for the king and people to have it disputed further. I had rather, for my part, have the prerogative acted, and I myself to lye under it, than to have itdisputed.
May 24, 1628.
Ed.: Debating a request from the Lords for a conference with the House, seeking a large committee from both sides to consider the Petition or other approaches to the same business.
Sir Edward Coke. I like not that we should say that this is not aparliamentary way. A negative is dangerous, and when wise men differ in opinion—quod dubitas, ne feceris. This addition came not out of our quire but from the Lords, and we have conferred with them and better we had never meddled with this than to add this that is in fair terms. And at first I was taken with it, and it seemed glorious, but now I see it was as dangerous a thing as ever came in parliament. Now shall we decline all, and come to new propositions, and declarations, and what? To accommodate? Let us know if the Lords be satisfied or not. If they be not, then it must sleep. If I have any understanding this addition wounds the fundamental laws. Let us go to the Lords and say, if you be not satisfied give us your reasons.
May 26, 1628.
Ed.: Reporting on a conference with the Lords that day, in which they agreed to drop the remaining requests for amendments to the Petition.
Sir Edward Coke reports to the House from the Lords, thus. I am almost dead for joy. A Domino factum est istud, et est mirabile in oculis nostris, etc. My Lord Keeper said he had many times delivered from the Lords words of friendship and good correspondency to the House of Commons, but now their Lordships were resolved not to show words but deeds for a good issue towards the happiness of King and kingdom. Concerning the petition of right, he said in a matter of such weight their Lordships have proceeded with long and serious debate since the last conference. But now they were, in omnibus, agreed with us, and stood upon no alterations but those which were already granted: the word “means” for “pretext” and “not warrantable by the laws and statutes of this kingdom” instead of the word “unlawful.” The petition, he said, remains with you; and as the Lords have already voted it in the Upper House, so they expect we should do here; and having so done, they said they would move the King for a speedy hearing. There remains yet one excellent circumstance. The Lords do desire that, as we do touch upon military matters in our petition, so we would take into consideration the right regulating of them; and by way of bill to settle the charge andthe office of deputy lieutenants; and thus I hope you shall see a blessed end of this parliament.
May 27, 1628.
Ed.: Presenting the final Petition of Right from the Commons to the Lords.
May 27. The commons sent a message to the lords, by sir Edw. Coke, and others, “To render them their most hearty thanks, for their noble and happy concurrence with them all this parliament: and they acknowledged that their lordships had not only dealt nobly with them in words, but also in deeds. That this Petition, which they were now to deliver, contained the true liberties of the subjects of England, and a true exposition of the Great Charter, not great for the words thereof, but in respect of the weight of the matter contained therein, the Liberties of the People: that their lordships concurring with the commons, had crowned the work; and therefore they doubted not, but as the first parliament of king James was called felix parliamentum, so this might be justly stiled parliamentum benedictum. Sir Edward concluded with the humble desire of the commons, that the lords would join with them to beseech his maj. for the more strength of this Petition, and the comfort of his loving subjects to give a gracious answer to the same in full parliament.” This said, he delivered the Petition of Right, fairly engrossed; and then they withdrew into the Painted Chamber.
June 2, 1628.
Petition of Right.
The Petition exhibited to his Majesty by the Lords Spiritual and Temporal, and commons in this present Parliament assembled, concerning divers Rights and Liberties of the Subject, with the King’s Royal Answer thereunto in full Parliament.
“To the King’s most excellent maj.: humbly shew unto our sovereign lord the king, the lords spiritual and temporal, and commons, in parliament assembled, that whereas it is declared and enacted, by a statute made in the reign of king Edw. 1 commonly called, ‘Statutum de Tallagio non concedendo,’ that no tallage or aid shall be laid or levied, by the king or his heirs, in this realm, without the good-will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other the freemen of the commonalty of this realm: and by authority of parliament, holden in the 25th year of king Edw. 3, it is declared and enacted that from thenceforth no person shall be compelled to make any loans to the king against his will, because such loans were against reason and the franchises of the land. And, by other laws of this realm, it is provided, that none should be charged by any charge or the position called a Benevolence, nor by such like charge; by which the statutes before mentioned, and the other the good laws and statutes of this realm, your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge, not set by common consent in parliament: yet nevertheless, of late, divers commissions, directed to sundry commissioners in several counties, with instructions, have issued, by pretext whereof, your people have been in divers places assembled, and required to lend certain sums of money unto your maj. and many of them, upon their refusal so to do, have had an unlawful oath administered unto them, not warrantable by the laws and statutes of this realm, and have been constrained to become bound to make appearance, and give attendance before your privy council, and in other places; and others of them have therefore been imprisoned, confined, and sundry other ways molested and disquieted: and divers other charges have been laid and levied upon your people, in several counties, by lords lieutenants, deputy lieutenants, commissioners for musters, justices of peace, and others, by command or direction from your maj. or your privy council, against the laws and free customs of this realm.—And whereas also, by the statute called, ‘The Great Charter of the Liberties of England,’ it is declared and enacted, that no freeman may be taken or imprisoned, or be disseized of his freeholds or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land. And in the 28th year of the reign of king Edw. 3. it was declared and enacted by authority of parliament, that no man, of what estate or condition that he be, should be put out of his lands or tenements, nor taken, nor imprisoned, nor disherited, nor put to death, without being brought to answer by due process of law: Nevertheless, against the tenor of the said statutes, and other the good laws and statutes of your realm, to that end provided, divers of your subjects have of late been imprisoned, without any cause shewed; and when, for their deliverance, they were brought before your justices, by your maj.’s writs of Habeas Corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your maj.’s special command, signified by the lords of your privy council; and yet were returned back to several prisons, without being charged with any thing, to which they might make answer by due process of law.—And whereas of late, great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants, against their wills, have been compelled to receive them into their houses, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people:—And whereas, also, by authority of parliament, in the 25th year of the reign of king Edw. 3. it is declared and enacted, that no man shall be fore-judged of life or limb against the form of the Great Charter, and other the laws and statutes of this realm; and by the said Great Charter, and other the laws and statutes of this your realm, no man ought to be adjudged to death, but by the laws established in this your realm, either by the customs of the same realm, or by acts of parliament: and, whereas, no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm: nevertheless, of late, divers commissions, under your Majesty’s great seal, have issued forth, by which, certain persons have been assigned and appointed commissioners with power and authority to proceed, within the land, according to the justice of martial law against such soldiers and mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever; and by such summary course and order, as is agreeable to martial law, and is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death, according to the martial law: by pretext whereof, some of your majesty’s subjects have been, by some of the said commissioners, put to death; when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought to have been adjudged and executed: and, also, sundry grievous offenders by colour thereof, claiming an exemption, have escaped the punishment due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused, or forborn to proceed against such offenders, according to the same laws and statutes, upon pretence that the said offenders were punishable only by martial law, and by authority of such commissions as aforesaid; which commissions, and all others of like nature, are wholly and directly contrary to the said laws and statutes of this your realm:—They do therefore, humbly, pray your most excellent maj. That no man hereafter be compelled to make or yield, any gift, loan, benevolence, tax or such like charge, without common consent by act of parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same or for refusal thereof: and that no freeman, in any such manner as is before-mentioned, be so imprisoned or detained: and that your maj. will be pleased to remove the said soldiers and mariners; and that your people may not be so burdened in time to come: and that the aforesaid commissions for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever, to be executed as aforesaid, lest, by colour of them, any of your majesty’s subjects be destroyed or put to death, contrary to the laws and franchise of the land.—All which they most humbly pray of your most excellent maj. as their Rights and Liberties, according to the laws and statutes of this realm: and that your maj. would also vouchsafe to declare, That the awards, doings and proceedings, to the prejudice of your people, in any of the premisses, shall not be drawn hereafter into consequence or example: and that your maj. would be also graciously pleased for the further comfort and safety of your people, to declare your royal will and pleasure, that, in the things aforesaid, all your officers and ministers shall serve you, according to the laws and statutes of this realm, as they tender the honour of your maj. and the prosperity of this kingdom.”
The King’s Answer.
“The king willeth, that Right be done according to the laws and customs of the realm; and that the statutes be put in due execution, that his subjects may have no cause to complain of any wrongs or oppressions, contrary to their just Rights and Liberties, to the preservation whereof, he holds himself, in conscience, as well obliged, as of his own prerogative.”
June 3, 1628.
Ed.: Debating Sir John Elliot’s proposition that the House must address continuing dangers to the Kingdom from religious controversy, foreign policy, military regulation, and taxes for the supply, suggesting a remonstrance.
Sir Edward Coke. I have had no conference with any, yet we may do it, collatio peperit artem et confirmat artem. If I did think in my conscience that the King was truly informed of our dishonors and disasters, I would leave them to his wisdom. Let us join in an humble remonstrance, leaving all to his wisdom. Let us fly to him as our refuge; we are now in a miserable condition. Another thing is to be considered of: no king but must be able to live on himself, and to supply his allies. Who will aid him if he be not able to aid them? The King, I hope, shall never want that that is necessary; but it is our duty to look that his ordinary revenues may defray his ordinary charges that he may live on his own else he must live on us. I will not say how much his ordinary expenses are more than the ordinary revenue. But if things were restored as they were, all the hang-bys and encroachments, all must away. Let there be a restitution of his wardrobe and tables. If he would feed no more than he ought, he might yet subsist. And I think this would give wings to the parliament, and I hope we shall have a better answer than yet we have. I well like of this motion so as it be with all duty and humility, without restriction.
June 5, 1628.
In the Committee of the Whole House
Ed.: Considering a message from the King, warning the House he would not extend the parliament, and, in effect ordering them to consider no new business, especially nothing that would criticize him or his ministers.Coke’s words here do not convey the shock and grief apparent in him and noted in various records, nor the acclaim with which other members greeted his attack on Buckingham.
Sir Edward Coke. We have dealt with that duty and moderation that never was the like, rebus sic stantibus, after such a violation of the liberties of the subject. Quicunque ausus est violare leges, non aliquos laedit cives, sed totam rem publicam evertere conatus est. Let us take this to heart. In 50 Edw. 3 they were then in doubt in parliament to name men that misled the King. They accused John of Gaunt, the King’s son, and Lord Latimer, and Lord Neville for misadvising the King, and they went to the Tower for it. Now, when there is such a downfall of the state, shall we hold our tongues? How shall we answer our duties to God and man? 7 Hen. 4, parliament roll, num. 31 et 32; 11 Hen. 4, num. 13: there the Council are complained of, and were removed from the King. They mewed up the King and dissuaded him from the common good. And why are we now required from that way we were in? Why may we not now name those that are the cause of all our evils? In 4 Edw. 3, and 27 Edw. 3, and 13 R. 2, the parliament moderated the King’s prerogative. Nothinggrows to abuse but this House has power to treat of it. What shall we now do? Let us palliate no longer; if we do, God will not prosper us. I think the Duke of Buckingham is the cause of all our miseries, and till the King be informed thereof we shall never go out with honor, nor sit with honor here. That man is the grievance of grievances. Let us set down the cause of all our disasters, and all will reflect upon him. As for going to the Lords, that is not regia via. Our liberties are now impeached, we are required. It is not vox regis. The Lords are not participant with our liberties.
June 6, 1628.
In the Committee of the Whole House
Ed.: Following a conciliatory note from the King, in considering the causes for the remonstrance begun on June 3.
Sir Edward Coke. We shall never know the commonwealth flourish but when the church flourishes. They live and die together. 1 Hen. 5, men were bold to speak in good and true causes, and they put up a petition and prayed execution of laws and prayed performance of promises. It is not credible to tell you of the increase of papists. If you have laws and they be not executed, it will patronize wicked doers. When Queen Elizabeth, in ’88, had repelled the Spaniards, there was a conspiracy to poison our Queen, and no three years but some attempt was threatened. In the end of her time, one Wright went into Spain, and the King said the Catholics of England were as dear to him as his Castilians. And they promise him aid if he come hither, and they never left working till the powder treason. Popham told me of one Winchley, a papist, that was taken and carried into Spain and there was a counsel to invade England by reason of the papists. And one said that cannot be, papists are laid in jails. If there be so many recusants now we are not safe. They intend to make Spain a monarchy. If we proceed against these weapons, I fear no invasions. Let the laws be executed against papists. I saw a commission for a toleration. I dare say Queen Elizabeth would never have consented to the like.
June 7, 1628.
In the Committee of the Whole House
Ed.: Considering a commission of excises, directing all the Lords of the Council to levy money, but not enrolled as required.
Sir Edward Coke. This is a cause of great consequence. I commend them that revealed more per lachrimas quam per risum. See now how these excises are disguised; nothing is unjust but is ashamed of light. All monopolies have fair pretenses but they are like apothecaries’ boxes, plus in titulo quam in . These excises are under the name of impositions, and sure to come to this commission. Usually the signature and the Great Seal go together. This came by immediate warrant from the King. Where is the warrant?
The Clerk of the Crown was called in again, and he said that Mr. Attorney’s hand was to it and he drew it.
Ed.: A further petition, accepting the King’s answer to the Petition of Right, after which he granted his assent to the Petition as a statute.
The King came to the Lords House, and the House of Commons were sent for thither to the King, and then the Lord Keeper presented the humble petition of both Houses and said:
May it please your most excellent Majesty, the Lords spiritual and temporal and Commons in parliament assembled, taking into their considerations that the good intelligence between your Majesty and your people does much depend upon your Majesty’s answer unto their petition of right, formerly presented with an unanimous consent unto your Majesty, do now become most humble suitors unto your Majesty that you will be pleased to give a clear and satisfactory answer thereunto in full parliament.
The King’s speech: The answer I have already given you was made with so good deliberation, and approved by the judgment of so many wise men, that I could not have imagined but it should have given you full satisfaction. But to avoid all ambiguous interpretations, and to show you there is no doubleness in my meaning, I am willing to pleasure you in words as well as in substance. Read your petition and you shall have an answer that I am sure will please you.
The petition was read and this answer: Soit droit fait comme il est desire par le petition. C. R.
The King’s speech: This I am sure is full, yet no more than I granted you in my first answer, for the meaning of that was to confirm all your liberties, knowing (according to your own protestations) that you neither mean nor can hurt my prerogative. And I assure you my maxim is that the people’s liberties strengthen the King’s prerogative, and the King’s prerogative is to defend the people’s liberties.
You see now how ready I have showed myself to satisfy your demands, so that I have done my part. Wherefore, if this parliament have not a happy conclusion, the sin is yours, I am free from it.
Ed.: Upon returning to the House, considering the King’s answer.
Sir Edward Coke. Let us consider what is done. We have made a petition of right that is divided into many branches, and I am persuaded his Majesty’s meaning was at first to give us as absolute and real an answer as now, and now it is: Soit droit fait comme il desire. If this had been a private bill it is: Soit fait comme il desire; if a public: Le Roy veult. But the King now says: Soit droit fait comme ils desire[nt]. We could never have had a better answer. If we have desired good things, it is granted. Let us so proceed as we may express our thankfulness, and let us all say amen, and communicate this joy to others.
June 11, 1628.
In the Committee of the Whole House
Ed.: Still considering the content of the remonstrance, whether concern over the forced loans should be in it.
Sir Edward Coke. This head is the fear of alteration of government. Now what greater fear can there be than when a general law is made for Lent and this is altered by proclamations? Proclamations come too high. For the loans, I have little reason to speak of them. I lent none, but it was said in my hearing that I had lent as much as any, and his Majesty was informed I did it with great alacrity. I was pressed to lend privately, but I denied. It was said that as wise and as learned as I had lent.
Ed.: Considering whether to name Buckingham in the remonstrance, Coke is here responding to an argument by Sir Henry Marten, arguing from an idiosyncratic view of motion, divided between natural and violent, inwhich violent motion speeds up. Coke’s response is nearer to Aristotle’s view.
Sir Edward Coke. I differ in the ground of him that spoke last. Natural motions go swiftest in the end. For the application, I say let us now be quicker in the end. I owe no duty to fear any but God and the King. I speak not out of malice, but out of duty. I will never palliate. I free my gracious Sovereign; he sees with other men’s eyes and proceeds with other men’s hands. This great Duke has monopolized many great offices. We free our Sovereign and lay all on his ministers, and the way to free him is to lay it where it is. If the judges do not their duty it is their fault. We now go with a lamentable complaint as never was the like. Do not we know that Spain looks for a monarchy in temporalibus? I see the weakness that is in the kingdom. Whose fault is it? They that misguide him. So we must name the Duke lest the aspersion lie on his Majesty.
June 13, 1628.
Ed.: Reporting on delivering, enrolling, and printing the Petition of Right.
Sir Edward Coke reports that he deliveredthe message yesterday to the Lords. And it was answered that the King’s message shall be entered on record, and that the petition be in the parliament roll, and that it be sent to the courts and printed, and so they all agreed to what he desired. The question is how this shall be done. The petition ought of right to be entered. As for the entering of it, the King must send a writ, and recite the petition, and so send it to the courts, for so it was done in former times.
20. Edw. 3, lunae post festum Epiphaniae magnum placitum inter Bohun, et le Count de Gloucester, when judgment was given there between them, both were fined, and by the King’s writ this judgment was sent to the King’s court to be enrolled.
28. Edw. 1, rot. clauso membran. 2, there is a writ to enroll Magna Carta and to see it observed, and so it has been used in all times.
This petition is a branch of Magna Carta. Let a committee consider on a writ to be drawn for the making of the writ.
My other message was about Maynwaring, his venemous book, and them that gave a warrant for that book, and to demand justice against him. To this was answered that their Lordships would take it into due consideration.
Ed.: Considering the commission for impositions and excises.
Sir Edward Coke. I observe some circumstances in this commission. It was the summons to the parliament. Sure some thought the parliament would not be. Let us go up to the Lords, they cannot but comply with us. I would be glad to hear of the projector, else we would never be quiet. There is a pudor about it. Some great Lord[s] never knew it. The end of it was excises, for they are impositions, and to be sure he would have the word otherwise. Let us go up to the Lords and desire a conference, and let us complain ofthiscommission and desire it may be cancelled, and if there be any enrollment of it, cancel it also. And that the projector may be punished and found out, let us vote it and pass our judgment.
Ed.: After adopting Coke’s proposal to punish the author of the commission on excise, the house considered what topics, or heads, to include in the customary royal pardon for parliamentarians’ actions.
Sir Edward Coke. It is true if the King will grant a pardon, who can question what can be left out? But if he will have our consent to have it enacted the heads must be brought to us. When I was Attorney myself it was then questioned. I denied to send it, but I did after yield.39 I would never refuse a pardon from God and the King, but let us require the heads of the Attorney.
Sir Edward Coke. 40 Edw. 3, the Commons did then send up a form of a pardon and desired it might be granted. And 21moJac. the heads were produced.
[Ordered that Mr. Solicitor acquaint Mr. Attorney with the pleasure of the House that the heads be brought in.]
In Conference with the Lords
Ed.: Concerning the commission on excises.
Sir Edward Coke at the conference with the Lords about the commission for excises:
The concurrence between your Lordships and us in the urgent affairs of the commonwealth have invited us often to your Lordships, and conferences have produced trust, and trust, confidence. Though counsels be not to be judged by events, yet (blessed be God) our counsels and conferences have brought forth good effects. But, my Lords, I must contract myself. The subject of this conference is a commission; therefore we shall desire your Lordships to hear it read.
Which was done accordingly.
That that I shall say is of two parts. First, the observations out of the patent: 1, the persons to whom it was directed; 2, the authority that is committed; 3, the great penalty laid on them if they do it not; 4, the time.
First, the persons to whom it is directed are 33 Lords and others of his Majesty’s honourable Privy Councils. 2dly, the authority committed to them is to consider how money may be levied by impositions or otherwise. It is true it is but a power to levy money by imposition. We do not find any thing raised (that is left to your Lordships); but to have a commission to levy money by imposition or otherwise, give us leave to fear that excises and whatever is comprehended in it was intended. Sure I am it is against the law. It is a very high breach of your Lordships’ and our, the poor Commons’, liberties. And yet this being ill in itself may produce a happy effect. The King and both Houses have given a judgment (the greatest that ever was) against this in the petition of right. And when this judgment is given, see how God’s goodness has brought it to pass that this patent should be part of the execution of that judgment to damn it.
For the punishment, I do utterly dislike that clause “as you tender the King’s honor” that that must come to a thing of this nature; and it is strange to me—I cannot dive into it—I leave it to your Lordships. For the time, it came out 27 days after the summons of parliament. All knew the parliament would descry this, but I hope it will now turn to good. I will not say it was kept secret.
That which I am to demand of your Lordships: first is that we have considered of the commission. We find it ex diametro against the late judgment in the petition of right; now, as we have condemned it, so your Lordships would concur with us as hitherto you have done.
Secondly, that this commission, as a thing directly against law, may be canceled: that if it be enrolled, a vacat may be made of it, and if not, that order may be taken that it be not enrolled. 4thly, that the warrant may be damned and destroyed. 5thly, that it would please your Lordships in your wisdoms to take into consideration who is the projector of this device. And, if he could be found out, that some exemplary punishment may be according to justice inflicted upon him.
June 16, 1628.
Ed.: Preparing to present the remonstrance to the King, in response to Sir John Elliot that the King first be told the parliament had voted him his subsidy.
Sir Edward Coke. Let there be no other introduction but to say the business is of that weight that it will admit no introduction.
June 18, 1628.
Ed.: Concerning a petition from the executor of William Bowdler, who had died intestate leaving a sizable estate, but the Crown alleged Bowdler was a bastard, so his estate would be seized by the King rather than administered by the church; the petition, by Bowdler’s son-in-law, was to determine whether the estate of bastards intestate was forfeit.
Sir Edward Coke. When I was sworn Attorney to Queen Elizabeth she said: Do not inform against any pro domina regina sed pro domina veritate, Icharge you do not oppress my subjects. And this then was a project in her time: an old man dying, a projector would pretend he was a bastard and so entitle the Queen; but when I was Attorney I ever did disclaim it. When he dies, the property without question is in the ordinary to dispose of, but the crown cannot claim it; and though the bastard have no kindred, yet he has friends that are de carne who are to have it.
Sir Edward Coke had leave to speak again, who said: shall the King have title as supreme ordinary, shall the King be quasi an ordinary, as owner? He cannot, it is clear. When a bishop dies, his goods are called multura episcopi. The King shall have his best horse and cup and his best cloak, et mutam canum, that is his kennel of hounds; for they get their goods by the church and should leave them to the church. Now to have license to make their wills, the King had this. I know it cannot be put out of any book or record that the King should have this prerogative.
June 21, 1628.
Ed.: Debating a motion to ask the King for an adjournment.
Sir Edward Coke. Let us not send to the King to know how long we shall sit. Let us show the causes and the reasons why we desire to know the time. The bill of subsidy is very difficult, unless you will double it and make 1s., 2s., non sic itur ad astra. No King is safe that is not able to defend himself, and to aid his allies, and to reward his well-deserving servants. Our great King cannot be able to subsist as things now stand if his ordinary revenue do not discharge his ordinary expenses. His house, as now it is, is igni se dare. The King has want of money, what need superfluous expenses? Why should the Duchy of Lancaster continue? There is a Council of York. When Scotland was severed from us, it was then of some use, but now men’s inheritances are carried by discretion. So for Wales (it is a marvelous thing) the subject’s right is tried by aliud examen —by witnesses, and not by juries. As for the household, you will say: will you talk of that without the King’s leave? But thus the parliament did in old time. 6 Edw. 3, num. 4; 50 Edw. 3, num. 5 and 160 especially in 7 Edw. 4 the subject took into consideration the revenue of the King, and how to regulate it. I will abate never a dish. Some have negative wits, I like them not.
For the forests, I hope to see men live where wild beasts do. Queen Elizabeth’s pensions were all due, she had but 1,700 l. in voluntary pensions. I will not say what is now. I would take away all your new fees and new offices. I spoke of this at Oxford, I spoke of [medicina] removens; I will spare that now. I do not like we should go to the King in a heat.
In the Committee of the Whole House
Ed.: Considering the impeachment and censure of a member for conspiring to alter the book of rates, in other words to raise the fees royal tenants paid.
Sir Edward Coke. Here is sufficient to convict Sir Edmund Sawyer. Before, he said he never meddled with the book of rates and wished that he were hanged if he did, but now he confesses it. I love not that men should lay wagers that cannot be taken. Part of the words he confesses, the rest he does not remember. This is a great offense. This poisons the fountain. It is true we examine not upon oath, but usually in their discretion they that come here speak the truth, or else we can punish them. We will teach men to equivocate here. He is a member of this House, and therefore greater is the wrong to this House. I will parallel it with Longe’s case in 8 Eliz. 4 l. was given to the mayor to be a burgess, and he was turned out of the House. Let Sir Edmund Sawyer be turned out of the House and go to the Tower.
June 24, 1628.
In the Committee of the Whole House
Ed.: Debating a bill against royal imposts.
Sir Edward Coke. The King has no manner of custom but by act of parliament. The ancient custom is upon wools and leather, but this came by parliament. And the subsidy on cloth, these impositions came by a pretended power in the King to impose in a time of necessity: rot. finium, 3 Edw. 1, there is the demi-mark granted by the commonalty to the King; rot. pat., 3 Edw. 1, memb. 1, this custom was granted by the Lords and Commons. In 26 Edw. 1, returnum brevium, salvis nobis custumam lanae per communitatem concessam. 25 Edw. 1 there is a saving of the customs granted to the King by the commonalty.
The bill of tonnage and poundage excepts cloth but it was pretended that wool was pretermitted.
13 Hen. 4, num. 18, there can be no imposition, without an act of parliament, for the defense of the realm.
Also, every king has accepted poundage by act of parliament and, therefore, could not do it without a parliament. If the King now, in the face of the parliament, will take it without our grant, I fear to see it. We cannot now in this short time make a book of rates. We can do nothing; let us give him thanks for his answer to our petition, and let us humbly desire that no more be taken by him till it be granted by parliament.
Sir Edward Coke. Before 3 Hen. 5 it was never granted for life but then, he being a victorious prince, his Commons gave it to him; and he said that it should never be drawn into example, for it was thought that never king should have the like occasion as he then had. In Hen. 6 his time it went but for years, H. 7 got it for life. It is a good warning for us to look what we do. Without a book of rates we cannot grant it, and never had king impositions granted him.
Official Acts Related to Sir Edward Coke’s Career