THE PARLIAMENTARY OR CONSTITUTIONAL History of England; Being a FAITHFUL ACCOUNT Of all the Moft remarkable TRANSACTIONS In PARLIAMENT, From the earliest TIMES, TO THE Restoration of King CHARLES II. COLLECTED From the JOURNALS of both HOUSES, the RECORDS, original MANUSCRIPTS, fcarce SPEECHES, and TRACTS; all compared with the feveral Cotemporary Writers, and connected, throughout, with the Hiftory of the Times. By SEVERAL HANDS. VOL. VIII. From the Fourth Year of King Charles I. to the Meeting of the Long Parliament, Nov. 3. 1640. LONDON, Printed; and fold by Thomas Osborne, in Gray's Inn ; AND William Sandby, against St. Dunstan'sChurch,Fleet-street. MDCCLI, THE PARLIAMENTARY HISTORY O F ENGLAND. 1628. N the 14th of April, the Lords re- An. 4. Charles I. fumed the grand Debate concerning the Liberty of the Subject; when the Judges of the King's Bench attended, according to an Order of the 8th, to give an Account of the Reasons of their Judgment, in the Cafe of the Gentlemen imprifoned by the King's Order, for refusing the Loan; which the Commons had complained of. on the Liberty Hereupon the Chief Justice (a) stood up and faid, Debate in the That they were prepared to obey their Lordships Hofe of Lords Command; but defired to be advised by them, whe- of the Subject. ther they, being fworn upon Penalty of forfeiting Body, Lands and Goods into the King's Hands, to give an Account to him, may do this without Warrant from his Majefty.' Hereupon the Duke of Buckingham said, 'He had acquainted the King with the Bufinefs, and, for VOL. VIII. ought A (a) Sir Nicholas Hide, (fo appointed on the Removal of Sir Randolph Crew, for refusing to forward the Loan.)—Rufbworth tells us, That he owed this Advancement to his being employed in drawing the Duke of Buckingham's Answer to the impeachment of the Commons. An. 4. Charles I. ought he knoweth, he is well content therewith: 1628. The Proceedings To this the Earl of Devonshire answered, If a in the King's Complaint be made by a mean Man against the Bench against the, greatest Officer in this Place, he is to give an Acprifoned for refu-count of his Doings to this House.' Gentlemen im quired into. fing the Lcan, in- The Bishop of Lincoln (b) faid, This Motion proceeded from him, and he took it for clear, that there is an Appeal even from the Chancery, which is a higher Court than the King's Bench; and that Court hath ever given an Account of their Doings." The Judges give the Reafons of The Lord Saye wondered there fhould be any Queftion made of this Bufinefs; becaufe, in his Opinion, this being the highest Court, did admit of no Appeal. The Lord Prefident (c) faid, The Judges did not do this by way of Appeal, but as the most common Way for them; this being a Matter concerning the King's Prerogative.' To which the Lord Saye anfwered, If they will not declare themfelves, we must take into Confideration the Point of our Privilege.' The Duke of Buckingham replied, This was not done by the Judges, as fearing to anfwer; but out of Refpect to the King: And now his Brother Anglesey was come with Anfwer from the King, that they might proceed (d). Hercupon Mr. Juftice WHITLOCK said, WE E are, by your Appointment, here ready to clear an Afperfion of the House of Commons, that the Subject was greatly wounded in the Judg (b) Dr. John Williams, formerly Lord-Keeper. (c) The Earl of Manchester, formerly Lord Chief Juftice of the King's Bench. (a) The Account of this Debate, and the Speeches of the four Ju ges are in the Ephemeris Parliamentaria. Two of them, only, are in Rufworth; for which Dr Nalfon (in the Introduction to his Collections) charges him with great Partiality: Tho' there feems to be little Foundation for this Cenfure, but the Prejudice of Party. We have chofen to spy Sir John Napier's Manufcript, which is much more correct. If An. 4. Charles I. Judgment lately given in the King's Bench. fuch a Thing were, your Lordships, not they, have the Power to question and judge the fame: But, my Lords, I fay there was no Judgment given, whereby either the Prerogative might be inlarged, or the Right of the Subject trenched upon. It is true, my Lords, in Michaelmas Term laft, five Gentlemen petitioned for a Habeas Corpus, which they obtained, and Counfel was affigned unto them (e). The Return was Per fpecialem Mandatum Domini Regis; which likewife was made known unto us under the Hands of eighteen Privy Counsellors. Now, my Lords, if we had delivered them prefently upon this, it must have been, because the King did not fhew Caufe; wherein we should have judged the King had done wrong, and this is beyond our Knowledge; for he might have committed them for other Matters than we could have imagined. But they might fay, They might have thus been kept in Prifon all their Days. I anfwer, No, but we did remit them, that we might better advife of the Matter; and they the next Day might have had a new Writ, if they had pleafed. But they fay, We ought not to have denied Bail. I anfwer, If we had done so, it must needs have reflected upon the King that he had unjustly imprifoned them: And it appears in Dyer, 2. Elizabeth, that divers Gentlemen being committed, and requiring Habeas Corpus, fome were bailed, others remitted; whereby it appears much is left to the Difcretion of the Judges. For that which troubleth fo much, Remittitur quoufque, this, my Lords, was only, as I faid before, to take Time what to do: And whereas they will have a Difference betwixt remittitur, and remittitur quoufque, my Lords, I confess I can find none: Thefe A 2 (e) Sir Thomas Darnel, Sir John Heveningham, Sir Walter Earl, Sir Edward Hampden, and Sir John Corbet. The first named Gentleman, upon his being brought to the Bar, fp ke for himself. The Counsel for the other four were, Sergeant Brampton, Mi. Noye, Mr, Selden, and Mr. Calthorp, 1628. |