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this case begius with Magna Carta ... No freeman can be im-
prisoned but by * legale judicium parium suorum vel per legem
terrae.' But will they have it understood that no man should
be committed, but first he shall be indicted or presented?
I think that no learned man will offer that ; for certainly there
is no justice of peace in a county, nor constable within a town,
but he doth otherwise, and might commit before an indictment
can be drawn or a presentment made. What then is meant by
these words, ' per legem terrae ' ? If any man shall say, this
doth not warrant that the King may, fgr reasons moving him,
commit a man and not be answerable for it, neither to the party
nor (under your Lordship's favour) unto any court of justice, but
to the High Court of Heaven, I do deny it and will prove it by
our statutes.

[Stat. 25 Edw. Ill, Gap. 4; 28 Edw. m, cap. 3; and other
Statutes, recited and examined.].

And now, my Lord, we are where we were, to find out the
true meaning of Magna Carta — for there is the foundation of
[our] case; all this that hath been said concerneth other
things^ and is nothing to the thing in question. There is not



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63 Constitutional Documents [1697

a word either of the commitment of the King, or commandment
of the Council, in all the statutes and records. . . .

The next thing I shall offer to your Lordships is this . . .
it is the resolution of all the judges, which was given in the
3^ of Queen Elizabeth. It fell out upon an unhappy occasion,
which was thus. The judges they complained that sheriff and
other officers could not execute t^e process of the law as they
ought, for that the parties on whom such process should be
executed, were sent away by some of the Queen's Council, that
they could not be found. The judges hereupon petitioned the
Lord Chancellor, that he would be a suitor to Her Majesty
that nothing be done hereafter. And thereupon the judges
were desired to show in what cases men that were committed
were not bailable, whether upon the commitment of the Queen
or any other. The judges make answer, that if a man shall be
committed by the Queen, by her command, or by the Privy
Council, he is not bailable. If your Lordship ask me what
authority I have for this, I can only say I have it out of the
book of the Lord Anderson, written with his own hand ^ . . .
This, my Lord, was the resolution of all the judges and [the]
barons of the Exchequer, and not^ [of] some great one.

Now I will apply myself to that which has been enforced by
the counsel on the other side, which was the reason, that the
subject hath interest in this case. My Lord, I do acknowledge
it, but I must say that the sovereign hath great interest in it
too. And sure I am that the first stone of sovereignty was no
sooner laid, but this power was given to the sovereign. If you
ask me whether it be unlimited — My Lord, I say it is not the
question now in hand ; but the common law, whigh hath long
flourished under the government of our King and his pro-
genitors, kings of this realm, hath ever had that rffvererit
respect of the sovereign, as that it hath concluded the King can
do no wrong. . . . But the King commits^ a subject, and ex-
presseth no cause of the commitment. 'What then 1 shall it be
thought that there is no cause why he should^lb^^CSItimitted.
Nay, my Lord, the course of all times hath been, to say there
is no cause expressed, and therefore the matter is not ripe ; and
Uiereupon the courts of judicature have ever rested satisfied

^ See Eist. qfEngU 1603-16421 vi. 344. * Printed teit, * by.'



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i6a7] The Case of the Five Knights 63

therewith: thejrwojil d not search into it. My Lords, there be
arcana Dei, et arcana impet^iu , . . There may as much hazard
come to the commonwealth in many other things with i^Hbich
the King is trusted, as in this particular there can accme to the
subject. ... It may be divers men do suffer wrongfully in prison,
but therefore shall all prisoners be delivered 1 That were
a great mischief. . . . The King may pardon all traitors and
felons ; and if he should do it, may not the subjects say, If the
King do this, the bad will overcome the good? But shall
any Mij^ The. King ■■fiaOBfit^JJo *l^s1 No: we may only say, He
vij^i not do this.

. TTl shall conclude what I shall say in this case — ^to answer

the fear rather than the just ground of them that say this may

be a cause of great danger — with the words of Bracton [lib. i,

cap. 8]. Spasming of a writ for wrong done by the King to

^ the subject touching land, he hath these words : * Si autem ab

o eo petatur (cum breve non currat contra ipsum), locus erit

^ supplicationi, quod factum suum corrigat et*emendet; quod

<.^ quidem si non fecerit, satis sufficit ei ad poenam, quod Dominum

^ expectet ultorem. Nemo quidem de £Etctis suis praesumat dis-

^ putare, multo fortius contra factum suum venire.' . . . And

C therefore JLpray your Lor dship, tibst Jh^ge .gfintlemen may be

^ r^fimittedj^d left io go tne rignt way for their delivery, which

**^ is by a petition to the T SIng. ITfce^l^y Itj be a pj^t^tio^ gf right

""feppytof grace jt know n ot ; it, mugi^ ^ hA ^^ ^^^ ^\^2^ ^^^ Ki^g>

from ^ ^saf& 1 ^(^ ^JifiSaonally .Ijntoatattd-Jiaj Jtfeese gentlemen

never yet present any petition f^r ^°it thftf fffj"^"* to his

knowtedge.^ -«*«— ,»*«.- . . ^ .

D. Lord Chief Justice Hyde^a Judgment.

. . . The exceptions which have been taken to this return
were two ; the one for the form, the other for the substance.
... In our case the cause of the detention is sufficiently
answered, which is the demand of the writ, and therefore we
resolve that the form of this return is good.

The next thing is the main point in law, whether the sub-
stance or matter of the return be good or no : wherein the
substance is this — ^he [the Warden] doth certify that they are
detained in prison by the special command of the King; and



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64 Constitutional Documents

whether this be good in law or no, that is the question. . . .
[After examination of precedents] Then the precedents are
all against you every one of them, and what shall guide our
judgments, since there is nothing alleged in this case but prece-
dents 1 That, if no cause of the commitment be expressed, it is
to be presumed to be for matter of state, which we cannot take
notice of; you see we find none, no, not one, that hath been
delivered by bail in the like cases, but by the hand of the King
or his direction. . . . We have looked upon that precedent that
was mentioned by Mr* Attorney — ^the resolution of all the
judges of England in 34 Eliz. . . . The question now is, whether
we may deliver these gentlemen or not • . . and this resolution
of all the judges teacheth us ; and what can we do but walk in
the steps of our forefathers ? ... If in justice we ought to
deliver you, we would do it ; but upon these grounds and these
records, and the precedents and resolutions, we cannot deliver
you, but you must be remanded.



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PART II



FROM THE MEETING OP THE THIRD PARLIAMENT
OF CHARLES I. TO THE MEETING OF THE LONG
PARLIAMENT.

9. Notes op a Bill bbouoht in by Sib Edwabd Cokb to
segube the libebtie8 of the subject.

[April 29, 1628. Harl. MSS. i77i,fol. 123. See HUt. of Engl. vi. iGj^-^."]

An Act far the better secwring of every freeman touching
the jpropriety of his goods and liberty of his person.

Whereas it is enacted and declared by Magna Carta that no
freeman is to be convicted, destroyed, &c., and whereas by
a statute made in E. 7, called de tallagio nan concedendo; and
whereas by the Parliament, 5 E. 3, and 29 E. 3, &c. ; and
whereas by the said great Charter was confirmed, and that the
other laws, &c.

Be it enacted that Magna Carta and these Acts be put in
due execution and that all allegements, awards, and rules given
or to be given to the contrary shall be void ; and whereas by the
common law and statute it appeareth that no fre ejaan Jmght to
be permitted ^ by command of the K ing, &c. ; and if any free-
man be so cpmmiited anCtbe sa^l^ returned upon a habeas
c<?rpt«, he OT^ELto. be delivered or bailed, and whereas by the
common law and statutes eveiy freeman hath a propriety of his

^ 'oonTioted'mMS.
P



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66 Constitutional Documents [1628

goods and estate as no tax, tallage, &c.; nor any soldier can be
billeted in his house, &c.

Be it enacted that no tax, tallage, or loan shall be levied &c.,
by the King or any minister by Act of Parliament, and that
none be compelled to receive any soldiers into his house against
his will.

10. The Petition of Right.

[June 7, 1638. 3 Car. I, cap. i. Statutes of the Realm, v. 23. See -
Hist, of Engl. vi. 374-309.]

The Petition exhibited to His Majesty hy^ the Lords Sinritual
and Tem2^CSl', and Commons in this present Tarliament
assembled, concerning divers Rights and Liberties of the
Subjects^ with ike King's Maje8ty*s Royal Answer there-
vmJto in full Parliament

To the King's Most Excellent Majesty.

Humbly show 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 time of the reign of King Edward the First, com-
monly called Stat'uJhMn 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 goodwill and assent of the Arch-
bishops, Bishops, Earls, Barons, Knights, Burgesses, and other
the freemen of the commonalty of this realm : and by authority
of Parliament holden in the five and twentieth yeat of the
reign of King Edward the Third *, it is declared and enacted,
that from thenceforth no person shall be compelled to make
any lo a gg io4he K^Rg agiaijist ^is^will, because sucTToans were
againsVreason'and the franchifie. cijtfie land ; and by o'fher laws
of this realm it is provided, that none should be charged by
any charge or imposition, called a Benevolence, or by such like
charge^, by which the statutes before-mentioned, and other
the good laws and statutes of this realm, your subjects have

^ This is now held not to have been a statute. Seo Stubbs, Const. Hist.
(ed. 1875), i^* ^43> S^^^t Charters, p. 87.
^ I have failed to discover this statute.
* In 1484, I Ric. III. c. 3.



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i6a8] The Petition of Right 67

inherited this freedom, that they should_not be compelled to
contnBtttelXJ anj^^tax, tallage, aid, or other lilcg' charge, ikpt^set
ly^common consent in Parliament :

'^et nevertheless, of late divers commissions directed to
sundry Commissioners in several counties with instructions have
issued, by means whereof your people have been in divers
places assembled, and required to lend certain sums of money
unto your Majesty, and many of them upon their refusal so to
do, have had an oath administered unto them, not warrantable
by the laws or 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 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 Lords Lieutenants, Deputy Lieutenants, Commissioners for
Musters, Justices of Peace and others, by command or direction
from your Majesty or your Privy Council, against the laws and
free customs of this realm :

And where also by the statute called, *The Great Charter
of the Liberties of England V it is declared and enacted, that
no free man may be taken or imprisoned or be jisseised_of his
freeholds or liberties, or his free customs, or, be outlawed or
^^ed; oT'tinCny manner dejeiroyedj' butjby the,_lawful judg-
ment of hifLpeers, oFBy "tlie law of the land :

And in the eight and twentieth year of the reign of King
Edward the Third ', 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 djje^process of law:

Nevertheless, against the tenor"^ the said statutes', and
other the good laws and statutes of your realm, to that end
provided, f^iYftfp nf Tftiir ffnhjpfitn tiftTr nf ^^^^ Vfl^ ^"^priff:;^"^ ,^
^^'^h^t any ftftT'iy ajjnwflfij and wheji fox,.their deliverance they
were ijrought before your Justices, by your Majesty^s writs of
Habeas Corpus, there to fttidergo and receive as the Court

* 9 Hen. III. 39. 2 28 Ed. III. 3.

» 37 Ed. in. 18 J 38 Ed. III. 9; 4a Ed. in. 3; 17 Ric. II. 6.



F 2



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j68 Constitutional Documents [1628

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 qf^sqldiers and mariners
have beenjisp£i„sed jnto divers counties of the realm, and the
inhabitants against their wills liaye been compelled^to receive
them into their houses, and there to suffer them~l;o 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 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 iTftrtial . Ifvy against such
soldiers and manjje;*SA or other dissolute penMua joining with
them, as" sliould conmiit |iny murder, robbery, felony, mutiny,
or other outrage or misdemeanour whatsoever, ancTby 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 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

' 35 Ed. III. 9. a 9 Hen. III. 29; 25 Ed. III. 4; a 8 Ed. III. 3.



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i628] The Petition of Right 69

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, claim-
ing 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 offendei*s 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
other 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 Majesty,
t hat no '"ffiai ritg^eajfrejc" T^^ ' ^^nijiglf *^i^ ^^ make™ or jield any
gift, loan , b^nfty^^l^" *^^ ^^'"^^jf or such like charge, without
common confifeftt^by. Act of ^Parliament; ^^'^ 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 imprisoned or
detained; ajif] ih^t yg ^ M^ftj^sty wilL b^ plft ^«<^d to remove
thg^ ^said sold iers and mariners, and that your people may not
be so burdened "m time to come; and that the foresaid
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 sbieh ihi^ y ffl oat hiim|^]| Y pray of your Most Excellent
-^ Majesty, as their rights and liberties according' to the laws

an d statutes of this re alm : an3^IEa£2mn;;^Majes^^^ would also
▼0U£||fia£eutiLdeclare7that the awardsTdoings, and proceedings
to t.hfl pr<^jn<^jf.^ gf ynnr people^ in any of the premises, shall
not be drawn hereafter into consequence or example : and that
yoiur Majesty would be also gr acious ly ple ased, for the^ further
comf ort and safe ty" of your people, to declare your royal will
and plei^re, that in" the ^things aforesaid all your officers and
ministers snajl^i^rve you, according to the laws and statutes









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i^



70 Constitutional Documents [1628

of this realm^ as thex_tfindw? tho haflourj)f your Migesty, and
the prosperity of this kingdom. " "

[Which Petition being read the 2nd of June 1628, the
King's answej^-^a^ thus delivered unto it.

The King fwilleth^ that right be done according to the laws

and cugti^ms of the realm; and that the statutes be put in

due execution, that luS subjects may have no cause to complain

of any wrong or oppressions, contrary to their just rights and

[.liberties, to the preservatipn whereof he Jtiolds.Junaadif.?is well

; 'obliged as of his prerogative^

On June 7 the answer was given in the accustomed form,
Soit droit fait comme il est desire. '\



11. The Remonstbance against Tonnage and Poundage.

[June 35, 1628, Rushworth, i. 6a8. See Hist, of Engl, vi, 333.]

Most Gracious Sovereign, your Majesty's mo st loyal and
dutiful subjects, the Commons in this presentL_Parliament
assembled, being in nothing more careful than of the honour
and prosperity of your Majesty, and the kingdom^ which they
know do much depend upon that happy union and relation
betwixt your Majesty and your people, do with much sorrow
apprehend, that by reason of the incertainty of their continuance
together, the unexpected interruptions which have been cast
upon them, and the shortness of time in which your Majesty
hath determined to end this Session, they cannot bring to maturity
and perfection divers businesses of weight, which they have taken
into their consideration and resolution, as most important for the
common good ; amongst other things they have taken into^ especial
care the prepaiing of a Bill for the granting of your Majesty
such a subsidy of Tonnage and Poundage, as might uphold
your profit and revenue in as ample a manner as their just
care and respect of trade (wherein not only the prosperity,
but even the life of the kingdom doth consist) would permit :
but being a work which will require much time, and pre-
paration by conference with your Majesty's officers, and with
the merchants, not only of London, but of other remote parts,
they find it not possible to be accomplished at this time: where-



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1 628] Remanstrance against Tonnage and Poundage 71

fore considering it will be mach more prejudicial to the right
of the subject, if your Majesty should continue to receive the
same without authority of law, after the deteimination of a
Session, than if there had been a recess by adjournment only,
in which case that intended grant would have related to the
first day of the Parliament ; and assuring themselves that your
Majesty is resolved to observe that your royal answer, which
you have lately made to the l^etition of Right of both Houses of
Parliament; yet doubting lest your Majesty may be misinformed
concerning this particular case, as if you might continue to take
those subsidies of Tonnage and Poundage, and other impositions
upon merchants, without breaking that answer, they are forced
by that duty which they owe to your Majesty, and to those whom
they represent, to declare, that there ought not any imposition
to be laid upon the goods of merchants, exported or imported,
without common consent by Act of Parliament, which is the
right and inheritance of your subjects, founded not only upon
the most ancient and original constitution of this kingdom, but
often confirmed and declared in divers statute laws.

And for the better manifestation thereof, may it please
your Majesty to understand, that although your royal prede-
cessors the Kings of this realm have often had such subsidies,
and impositionB granted unto them, upon divers occasions,
especially for the guarding of the seas, and safeguard of
merchants; yet. tfee subjects have ..been ever careful to use
such ^c&jqitifim?) and limitations in those grants, a& might
prevent any claim to be made, that such subsidies do proceed
from duty, and not from the free gift of the subjects: and
that they have heretofore useTToTlmiTa Sme in such grants,
and for the most pai^t but short, as for a year or two, and
if it were continued longer, they have sometimes directed a
certain space of cessation, or intermission, that so the right
of the subject might be more evident. At other times it
hath been gratrted'^ixpoti occasion of war, for a certain
number of years, with proviso, that if the war were ended in
the meantime, then the grant should cease; and of course it
hath been sequestered into the hands of some subjects to be
employed for the guarding of the seas. And it is acknow-
ledged by the ordinary answers of your Majesty's predecessors



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72 Constitutional Documents [1628

in their assent to the Bills of sabsidies of Tonnage and
Poundage, that it is of the nature of other subsidies, pro-
ceeding from the goodwill of the subject. Very few of your
predecessors Tiad it for life, until the reign of Henry VII*,
who was so far from conceiving he had any right thereunto,
that although he granted commissions for collecting certain
duties and customs due by law, yet he made no commissions
for receiving the subsidy of Tonnage and Poundage, until
the same was granted unto him in Parliament. Since his
time all the Kings and Queens of this realm have had the
like grants for life by the free love and goodwill of the
subjects. And whensoever the people have been grieved by
laying any impositions or other charges upon their goods
and merchandises, without authority of law (which hath
been very seldom), yet upon complaint in Parliament they
have been forthwith relieved; saving in the time of your
royal father, who having through ill counsel raised the rates
and charges upon merchandises to that height at which they
now are, yet he was pleased so far forth to yield to the com-
plaint of his people, as to ofiPer that if the value of those
impositions which he had set might be made good unto him,
he would bind himself and his heirs by Act of Parliament
never to lay any other; which offer the Commons at that
time, in regard of the great burden, did not think fit to yield
unto. Nevertheless, your loyal Commons in this Parliament,
out of their especial zeal to your service, and especial regard
of your pressing occasions, have taken into their considera-
tion, so to frame a grant of subsidy of Tonnage or Poundage
to your Majesty, that both you might have been the better
enabled for the defence of your realm, and your subjects, by
being secure from all undue charges, be the more encouraged
cheerfully to pioceed in their course of trade ; by the increase
whereof your Majesty's profit, and likewise the strength of the
kingdom would be very much augmented.

But not now being able to accomplish this their desire,
there is no course left unto them, without manifest breach

* Tonnage and Poundage was granted for life to Edward IV in 1464
(8 & 4 Ed. IV), RoL Pari v. 508. It was also granted in 1483 to



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