129. Proceedings against WILLIAM STROUD, esq. WALTER LONG, esq. JOHN SELDEN, esq. and others, on an Habeas Corpus, in Banco Regis: 5 CHARLES I. A. D. 1629.*

ney proposed certain Questions concerning the all agreed, That regularly he cannot be com Offences of some of the parliament men compelled out of parliament to answer things done mitted to the Tower, and other prisons: At in parliament in a parliamentary course; but which time, one question was proposed and re- it is otherwise where things are done exorbisolved, viz. That the statute of 4 H. 8, inti-tantly, for those are not the acts of a court. * led, * An Act concerning Richard Strode,' was ' a particular act of parliament, and extended only to Richard Strode, and to those persons 'that had joined with him to prefer a Bill to 'the house of commons concerning Tinners: And although the act be private, and extend'eth to them alone, yet it was no more than all other parliament men, by privilege of the house, ought to have, viz. Freedom of speech concerning those matters debated in parliament by a parliamentary course.'

It is demanded of a parliament-man, being called ore tenus, before the court of Star-Chamber, being charged, that he did not submit himself to examination for such things as did concern the king and the government of the state, and were affirmed to be done by a third person, and not by himself; if he confesses his hand to that refusal, and make his excuse, and plead because he had privilege of parliament;

Whether the Court will not over-rule this Plea as erroneous, and that he ought to make a further answer?

Ans. It is the justest way for the king and the party not to proceed ore tenus, because it being a point in law, it is fit to hear counsel before it be over-ruled; and upon an ore tenus, by the rules of Star-Chamber, counsel ought not to be admitted; and that it would not be for the honour of the king, nor the safety of the subject, to proceed in that manner. [But the king dropped the Proceedings against them in the Star-Chamber.]

Pasch, 5 Car. upon an Habeas Corpus of this court to bring the body of William Stroud, esq. with the cause of his imprisonment, to the marshal of the King's-bench; it was returned in this manner:

You are to take knowledge, that it is his majesty's pleasure and commandment, that 'you take into your custody the body of William Stroud, esq.; and keep him close prisoner

till you shall receive other order, either from his majesty, or this board: for so doing, this 'shall be your Warrant. Dated this 2d of April, 1629.' And the direction of the Warrant was, To the marshal of the King'sbench, or his deputy,'

He is also detained in prison by virtue of a Warrant under his majesty's hand; the tenour of which Warrant followeth in these words : C. R.; Whereas you have in your custody the body of William Stroud, esq. by Warrant of our lords of our privy-council, by our spe'cial command, you are to take notice, that this commitment was for notable contempts by him committed against our self and our government, and for stirring up sedition against us; for which you are to detain him in your custody, and to keep him close prisoner, until our pleasure be further known concerning his deliverance. Given at Greenwich, conceive to be a great contempt.-5. Whether, second Quære, about the king's power of adif a few parliament-men do conspire together, journing as well as calling and dissolving of to stir up ill affections in the people against the Parliaments, these following parliamentary preking, and the government, and to leave the par- cedents were given in. 4 Aprilis, 1 Jac. Sess. liament with such a loose, and by words or 1. Mr. Speaker pronounceth his majesty's pleawritings put it in execution, and this not pu- sure of adjourning the house till the 11th of nished in parliament, it be an offence punisha- April (and it was so done.)-18 Dec. 1606. ble out of parliament? Ans. We conceive this The lords by their messengers signified the offence to be punishable out of parliament.- king's pleasure, that the session should be ad6. Whether, if some parliament-men shall con- journed till the 10th of Feb. following-Upon spire together to publish papers containing false this Message Mr. Speaker adjourned the house and scandalous rumours against the lords of according to his majesty's said pleasure.-31 the Privy-Council, or any one or more of them, Martii 1607. The Speaker delivered the king's not to the end to question them in a legal or pleasure, that the house should be adjourned parliamentary way, but to bring them into ha- till Monday the 20th of April following.-20 tred of the people, and the government into Maii 1607. Mr. Speaker signified the king's contempt, and to make discord between the pleasure about nine o'clock to adjourn the lords and commons; is not this an offence pu- house till the 27th of the same month.--And nishable out of parliament? Ans. We conceive the 27th of May, he being challenged for adthis also to be an offence punishable out of par- journing without the privity of the house, he liament.-7. If two or three or more of the par- excuseth it, and saith, as the house had power liament shall conspire to defame the king's go-to adjourn themselves, so the king had a suvernment, and to deter his subjects from obey- perior power, and by his command he did it.ing or assisting the king; of what nature this 30 Martii 1610. His majesty's pleasure to adoffence is? Ans. The nature and quality of this journ from Tuesday till Monday sevennight.offence will be greater or lesser, as the circum- 11 July. The king by commission adjourneth stances shall fall out, upon the truth of the the lords house. Messengers sent to the comfact.-8. Can any privilege of the house war- mons. They send by messengers of their own rant a tumultuous proceeding? Ans. We hum- to the lords, that they use to adjourn themselves. bly conceive, that an earnest, though a disor- The commission is sent down, Mr. Speaker adderly and confused proceeding in such a multi-journeth the house till the 1st of August.-26 tude, may be called tumultuous, and yet the Febr. 4 Car. Mr. Speaker signifieth his maprivilege of the house may warrant it.We in jesty's pleasure, that the house be presently adall humbleness are willing to satisfy your ma-journed till Monday next, and in the mean jesty's command, but unul the particulars of time all committees and other proceedings to the fact do appear, we can give no direct An- cease. And thereupon Mr. Speaker in the name swers than before. And particularly as to the of the house adjourned the same accordingly.

the 7th of May, 1629, in the 5th year of our ' reign.'

The direction being, To the marshal of our bench for the time being, et hæ sunt causæ 'captionis et detentionis prædicti Gulielmi 'Stroud.'

And upon another Habeas Corpus to the Marshal of the Houshold, to have the body of Walter Long, esq. in court, it was returned according as the return of Mr. Stroud was.

Mr. Ask, of the Inner-Temple, of counsel for Mr. Stroud; and Mr. Mason of Lincoln's-Inn, of counsel for Mr. Long; argued against the insufficiency of the Return.

tious, or slanderous news, saying of tales of the queen, &c. he shall lose his ears, or pay 100. There the penalty imposed upon such sedition is but a fine. Coke 4. Lord Cromwel's Case, p. 13, where sedition is defined to be seorsum itio, when a man takes a course of his own, and there it is said, that the words maintain sedition against the queen's 'proceedings'-shall be expounded according to the coherence of all the words, and the intent of the parties. So that it is plain, that there is a sedition that is only fineable, and which is no cause of imprisonment without bail: And what the sedition is that is here intended, cannot be gathered out of the words, they are so general. Against us-those words are redundant, for every sedition is against the

Mr. Ask. That the Return was insufficient. The Return consists upon two Warrants, bearing several dates, which are the causes of the taking and detaining of the prisoner. For the first war-king. rant, which is of the lords of the council, that is Upon the generality and incertainty of all insufficient: because no cause is shewn of his the words in the Return, he put these Cases; commitment, which is expresly against the re- 18 E. 3. A man was indicted,' quia furatus solution of the parliament, and their Petition of 'est equum,' and doth not say, felonicè, and Right, in the time of this king, which now is, therefore ill. 29 Ass. 45. A man was indicted to which he had likewise given his assent; so that he was communis latro,' and the indicthis taking by virtue of the said warrant is ment held vicious, because too general. So wrongful. And for the second wawant, it is here the offences are returned generally. But insufficient also, and that notwithstanding it be there ought to be something individual, Coke the king's own; for the king himself cannot im-5, 57. Specot's case, quia schismaticus inve prison any man, as our books are, to wit, 16 H. 6, F. Monstrance de faits. 1 H. 7, 4. Hussey reports it to be the opinion of Markham, in the time of Edw. 4, and Fortescue in his book, ⚫ De laudibus Legum Angliæ,' c. 18. And the reason given, is, because no action of false im-The bishop of N. refuseth one, because he was prisonment lies against the king, if the impriSonment be wrongful; and the king cannot be a wrong doer. The statute of Magna Charta is, That no freeman be imprisoned but by the law of the land. And it appears by these books, that it is against the law of the land that the king should imprison any one.

'teratus,' is no good cause for the bishop to refuse a clerk, for it is too general, and there are schisms of divers kinds. 38 E. 3, 2. Because the clerk is criminosus, it is no good cause for the bishop to refuse him. 8 and 9 Eliz. Dy. 254.

resolved, Hill. 33 Eliz. Peak and Paul the defendants said of the plaintiff, Thou art a mutinous and seditious man, and maintainest sedition against the queen; and the words adjudged not actionable.

a haunter of taverns, &c. for which, and divers other crimes, he was unfit; held that the last words are too general and incertain. 40 E. 3, 6. In the tender of a marriage, and refusal of the heir, he ought to alledge a certain cause of refusal, whereupon issue may be taken. Coke 8, 68. Trollop's case, to say, That the plaintiff is 2. Admit that this be only a signification excommunicated for divers contumacies, shall and notification given by the king himself, of not disable him, without shewing some cause in the commitment of the prisoner; yet it seems special of the excommunication, upon which the that that signification is of no force, 1. Because court may judge whether it were just or no : so the words are general and uncertain- for no-here. And he concluded with a Case that was table contempts.-There are in the law many contempts of several natures; there are contempts against the Common Law, against the Statute Law; contempts in words, gestures, or actions. And it appears not to the court of what nature these contempts were. Notable' -Every contempt which is made to the king is notable.—- Against our government'-Contempt which is committed in the Court of Record or Chancery, is a contempt against the government of the king, to wit, because they disobey the king when he commands them by his writs, Coke 8, 60, a. Beecher's Case. The last words of the Return are,- For stirring up of sedition against us'-which words likewise are indefinite and general. I find not the word 'Sedition' in our books, but taken adjectively, as seditious books, seditious news, &c. In the Statute of the 1st and 2d Phil. and Mary, cap. 3, the words are, If any person shall be con'victed, &c. for speaking, &c. boy false, sedi

VOL. III.

Mr. Mason (afterwards recorder of London) moved also, that the Return was insufficient. For the first Warrant, That he was committed by command of the king, signified by the privy- · council, I will not argue that, because it was claimed as an ancient right pertaining to the subject in the Petition of Right, whereto the king himself hath given his consent. For the second Warrant, the Return is, for stirr

ing up sedition against us and our govern'ment.' Sedition is not any determined offence within our law; our law gives definitions or descriptions of other offences, to wit, of treason, murder, felony, &c. but there is no crime in our law called Sedition. It is defined by a civilian to be 'Seditio,' or 'Secessio, cum

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pars reipublicæ contra partem insurgit;' so church; they are to be punished 107. by the that se lition is nothing but division. Bracton month. Out of all which statutes it may be and Glanvile have the word Seditio generally. collected, that the word 'sedition' is taken vaBefore the statute of 25 E. 3, cap. 2, it was riously, according to the subject in hand. And not clear enough what thing was Treason, what Coke 4, 13. Lord Cromwel's case, seditious' not; by which statute it is declared what shall is referred to doctrine. There are offences be called Treason, and that the Judges shall more high in their nature than sedition, which not declare any thing to be Treason, that is were not treason, unless so declared by act of not contained within the said statute, but it parliament. Every rebellious act is sedition, shall be declared only by parliament. And yet if such acts be not within the statute of 25 that statute speaks not of sedition, nor the sta- | E. 3, they are not treason. 17 R. 2, c. 8, intute of 1 H. 4, c. 10, which makes some things surrection of villeins and others is made treatreason, which are not contained with the said son; which proves, that before this act it was statute of 25 E. 3. The statute of 1 E. 6, c. not treason. And this act of 17 R. 2, is re12, takes away all intervenient statutes, which pealed by the statute of 1 H. 4. By the stadeclared new treasons; and the said act de- tute of 3 and 4 E. 6, c. 5, to assemble people clares other things to be treason, but mentions to alter the laws, is made treason, if they connot sedition. Sedition is the quality of an of- tinue together an hour after proclamation made. fence, and is oftentimes taken adverbially, or This assembly of people was sedition at the adjectively. To raise tumults or trespasses is common law; and the very assembly, if they sedition, Trin. 21 E. 3, rot. 23, B. R. Garbart's after dissolve upon proclamation made, is not case; a man was indicted, because in the high- treason by the said statute. By the statuté street he took J. S. there being in hostile man- of 14 Eliz. c. 1. it is made felony, maliciously ner, and usurped over him royal power, which and rebelliously to hold from the queen any is manifest sedition; and there it was but an castles, &c. but because this relates not to indictment of trespass. Mich. 20 E. 1, rot. 27. the statute of 25 E. 3, it is not treason. 2. It One that was surveyor of the wood work for seems clearly, that this case is within the Petithe king, was indicted for stealing of timber, tion of Right, in which Magna Charta, and the and detaining wages (ridding carpenters wages) statutes of 25 and 28 E. 3, are recited. The by one that was but a boy; and this is there grievance there was, that divers have been imtermed sedition, and yet it was but a petty fe- prisoned without any cause shewed, to which lony. Mich. 42 E. 3, rot. 65. B. R. R. Pope they might make answer according to the law. was appealed by the wife of J. S. because he And upon this return, nothing appears to be feloniously and seditiously murdered J. S. and objected to which he might answer. It apseditiously' was there put in, because it was pears not what that act, which is called Sedidone privily. By which cases it appears, that Se-tion, was. This is the very grief intended to dition is not taken as a substantive, so that it may be remedied by this statute; to this he cannot be applied to treason, trespass, or other offences. answer according to law. It appears not wheBy the statute of 2 H. 4, c. 15, there is a pu- ther this were a seditious act, trespass, or nishment inflicted for the raising of seditious slander, or what it was at all. The words are, doctrine, and yet no punishment could have been inflicted for it until the said statute; and yet it was seditious, as well before the said statute as after. And this appears also by the statute of 1st and 2d of Philip and Mary, c. 3, | which hath been cited. The statute 13 Eliz. c. 2. recites, that divers seditious and evil-disposed persons, &c. obtained bulls of reconciliation from the pope, which offence was made treason by the said statute, (for it was not before, and yet there was sedition) and by the said statute, the aiders and abettors are but in the case of Premunire. By the statute of 13 Eliz. c. 1, for the avoiding of contentious and seditious titles to the crown, it is enacted by the said statute, That he that shall declare the successor of the king, shall forfeit the moiety of his goods, &c. so that the said offence, although it be seditious, is not treason by the common law, nor is it made treason by the statute of 25 E. 3, nor by the statute of 13 Eliz. By the statute of 23 Eliz. c. 2, he that speaks seditious or slanderous news of the queen shall lose his ears, or pay 2001. and the second offence is made felony. The statute of 35 Eliz. c. 1. is against seditious sectaries, which absent themselves from the

Sedition against the king;' this helps not, for every offence is against the king, against his crown and dignity; that which disturbs the commonwealth is against the king; seditious doctrine is sedition against the king, as is beforesaid. In 28 H. 6, vide prostrat. fol. 19. the lords and commons desire the king, that William de la Pool may be committed for divers treasons, and sundry other heinous crimes; and the petition held not good, because too general: whereupon they exhibit particular Articles against him.-And therefore upon the whole matter, prayed, that Mr. Long might be discharged from his imprisonment.

On another day, Berkley and Davenport, the king's Serjeants, argued for the king, that this Return was sufficient in law to detain them in prison.

Berkley began, and said, That the case is new, and of great weight and consequence; and yet, under favour, the prerogative of the king, and the liberty of the subject, arenot mainly touched therein; for the case is not so general as it hath been made, but particular upon this particular return. The Liberty of the Subject is a tender point, the right whereof is great, just, and inviolable. The Prerogative