sense he hath of the expence of time, that grew confirmed. All times thought it safe, that when from the debates in both houses. We see they came to a negative of power, it was hard how indulgent he is, that however the affairs of to keep government and liberty together: yet Christendom are great, yet he omits not this; his maj. stopped not there; but, according to nay, he takes in good part our proceedings and the sense of these laws, that he will govern bis our declarations that we will not impeach the subjects in their just liberties, he assures us prerogative: also his maj. presumes that we our liberties are just; they are not of grace but will confess, that he hath used extraordinary of right; nay, he assures us he will govern us grace, in that he hath endured dispute so long, according to the laws of the realm, and that yet he acknowledgeth it justice to stand as we we shall find as much security in his maj.'s prohave done.--However, out of a princely regard mise, as in any law we can make; and whatto the public, he is careful no more time be lost; soever law we shall make, it must come to his and because he sees some extraordinary course maj.'s allowance and if his maj. find cause in inust be taken to satisfy us, he observes, that his government, he need not put life to it: we in the form of the debate, such a length is re- daily see all laws are broken, and all laws will quired, as the urgent nature of his business be broken for the public good; and the king will not possibly endure. It is to be presumed, may pardon all offenders; his maj. did see, that his government will be according to the that the best way to settle all at unity, is to exlaws: we cannot but remember what his father press his own heart: the king's heart is the best said, 'He is no king, but a tyrant, that governs guider of his own promise, his promise is bound not by law; but this kingdom is to be govern- with his own heart. What prince can express ed by the common law, and his maj. assures more care and wisdom ?-Lastly, he saith, that us so much; the interpretation is left to the hereafter ye shall never have the like cause to judges, and to his great council, and all is to complain may we not think the breach is be regulated by the common law: I mean not made up? is not his maj, engaged in his royal Magna Charta only, for that Magna Charta word? The conclusion is full of weight: and was part of the common law and the antient he prays God, that as God hath blessed this law of this kingdom; all our difference is in kingdom and put it into his heart to come the application of this law; and how this law, amongst us, so to make this day successful. with difference, is derived into every court. I The wrath of a king is like the roaring of a conceive there are two rules, the one of brass, lion,' and all laws, with his wrath, are of no that is rigid, and will not bend, and that is the effect: but The king's favour is like the dew law of the King's-bench; this law will not upon the grass,' there all will prosper; and bend, and when it lights on subjects fitting, if may God make him the instrument to unite all it do not bend, it is unjust: and there comes in our hearts. His maj. having thus discharged the law of chancery and equity; this is appli-himself, he prays us to proceed to the busication of law in private men's causes, when it comes to meum & tuum. And thus the general government of cases, with relation to the common state of the kingdom, is from the council-board; and there they may vary from the law of the kingdom: suppose it be in time of dearth, any man's goods may in that time be forced, and be brought to the market: we saw the experience of it in coals in London, when the council-board caused them to be brought forth and sold. In a time of pestilence meu may be restrained: if a schism be like to grow in a church, the state will inquire after the favourers of it: if there be fear of invasion, and it be encouraged by hope of a party amongst us, it is in the power of government to restrain men to their houses.-In the composure of these things, there is great difference: what differences have been between the courts of chancery and King's-bench? it is hard to put true difference between the king's prerogative and our liberties. His maj. saw expence of time would be prejudicial. It pleased God to move his maj. by a divine haud, to shew us a way to clear all our difficulties; let us attend to all the parts of it; there be 5 degrees; and there is more assurance than we could have by any law whatsoever, his maj. declares, that Magna Charta and the other statutes are in force. This is not the first time that the Liberty of the Subject was infringed, or was in debate and

ness that so much concerns him. As his maj. hath now shewed himself the best of kings, let us acknowledge his maj.'s goodness, and return to that union which we all desired.'

*

Sir Benj. Rudyard replied: "We are now upon a business of great importance, and the manner of handling it may be as great as even the business itself. Liberty is a precious thing, for every man may set his own price upon it, and he that doth not value it, deserves to be valued accordingly. For my own part, I am clear without scruple, that what we have resolved is according to law; and if any judge in England were of a contrary opinion, I am sure we should have heard of him before now. Out of all question the very point, the scope and drift of Magna Charta was, to reduce the regal to a legal power in matters of imprisonment, or else it had not been worth so much contending for. But there have been precedents brought to prove the practice and interpretation of the law. I confess I have heard many precedents of utility and respect, but none at all of truth or of law: certainly there is no court of justice. in England, that will discharge a prisoner committed by the king, rege inconsulto, i. e.

From a MS. in the Harleian Library. There is an incorrect copy of it in the Ephemeris: it is also in Rushworth, but some paragraphs are there omitted.

our resolutions, I reason thus: our resolutions were drawn out of the sense of those laws, which are now desired to be confirmed; so that no question can be made by any of us, that have thus declared ourselves, but that our resolutions are virtually contained in those laws; if that be so, how can our acceptance of a confirmation of those laws he a departure from our resolutions? Nay, rather, I think the contrary is true: he who doubts, that by confirmation of these laws, our resolutions are not hereby confirmed, doubts whether we have justly deduced our resolutions out of those laws, and so calls our resolutions into question. The 2nd objection is, That, if we have nothing but a confirmation, we are in no better casc than we were before these late violations of the law. This I deny, and do confidently affirm, That, although we have no more than a confirmation of those laws, which are recited in the bill that is now before us, we shall depart hence in far better case than we came; and that in divers respects. 1st, Some of the laws recited in this bill, and desired to be confirmed, are not printed laws; they are known to few professors of the law, and much less to others; and yet they are laws of as great consequence to the Liberty of the Subject, if not of greater, than any that are printed; as namely, 25 Ed. 3. N. 1. that Loans, against the will of the lender, are against reason and the freedom of the realm; and 36 Edw. 3. N. 9. by which Imprisonments by special commandment, with out due process, are forbidden. These two are not printed. That excellent law, De Tallagio non concedendo,' in print, hath, in a public court, been said by a great counsellor to be but a charter and no law. The statute, 1 Rich. 3. against Benevolences, is, by some opinions in print, an absolute law. If we can get all these good laws, besides those six others, which are expositions of Magna Charta, in the point of the freedom of our persons, to be confirmed and put in one law to the easy view of all men, is not our case far better than when we came hither? 2ndly, Will not the occasion of the making of this law of confirmation, so notoriously known, be transmitted to all posterity? Certainly it will never be forgotten, that the occasion thereof was the imprisonment of those worthy gentlemen for not lending, and the resolution in the court of King'sbench of denying to bail them: and is not the occasion of making of a law a good rule to expound it? If so, then, by giving a confirmation upon this occasion we have bettered our case very much. 3dly, Have not the judges in the King's-bench, in open parliament, upon our Mr. Mason spoke as follows: Mr. Speaker, complaint, disclaimed to have given any judg-I am of opinion, that in our proceedings in the ment in the point? Which, generally before, by the parliament was otherwise conceived; for now they say, it was but an award and no judgment (see p. 289): will such a notorious act, upon so important an occasion, and in so public a place, be quickly forgotten? Nay, will not the memory of it for ever remain upon record? Is not our case then much better than when VOL. II.

we came hither. 4thly, Will not the Resolution of this house, and all our arguments and reasons against Imprisonment, without a cause expressed, (which, no doubt, by the course we have taken, will be transferred to posterity,) be a great means to stay any judge hereafter from declaring any judgment to the contrary; and especially if there be a likelihood of the meeting of a parliament? Is not our case in this very much amended? Lastly, have not we received Propositions from the lords, wherein, amongst other things, they declared, that they are not out of love with our proceedings? Is not this a great strengthening to it? But, after so long debate amongst them about it, they cannot take any just exception to it: and doth not this also much amend our case? From all these reasons, I conclude, That the second ob jection is also a weak objection. Now for reasons to move us to proceed in this course of accepting a confirmation; 1st, We have his majes ty's gracious promise to yield to a confirination of the old laws, from which we may rest most assured he will not depart: if we tender him, withal, our Resolutions to be enacted, we have no cause to doubt that we shall lose both the one and the other. And, 2ndly, we are no less assured of the lords joining with us; for, in their Propositions sent to us, they have delivered themselves to that purpose: this is then a secure way of getting somewhat of great advantage to us, as we have great hopes, and in a manner, assurance on this side; so, on the other side, we have great doubts and fears, that by offering our resolutions to be enacted, we shall lose all. For, 1st. We have had already experience of the lords, that they are not very forward to join with us in a declaration of our Resolutions to be law. If they stumble at a declaration, much more will they in yielding to make a law in the same point. And, have we not much more cause to doubt that his maj. will not yield unto it, seeing it toucheth him so near? Is it not the notice of his pleasure that hath wrought thus with the lords? If we should clog the bill with our Resolutions, and it should be rejected by the lords, or by the king, are not our resolutions much weakened by it? and are we not then in far worse case than before we made them? and if they resolve to reject our resolutions, will it not tend to a justification of all that hath been done against us in this great point of our liberty? Let us then, like wise men, conform our desires to our hopes and guide our hopes by probabilities; for other desires and other hopes are but vain. This is my poor opinion in this weighty business.'

matter now in debate, we should make use of the title of a statute, called circumsperte agatis;' for it concerns the liberty of our persons, without which we do not enjoy our lives. The question is, Whether in this bill, for the explanation of Magna Charta and the rest of the statutes, we shall provide that the cause of the commitment must be expressed upon the

his

commitinent, or upon the return of the Habeas | him, it will be a sufficient answer for them to Corpus? Before I speak to the question itself, say, they will express the cause at the return of I shall propose some observations, in my con- the H. Corpus. In this case there will be a ceit, necessarily conducing to the debate of the wrong, because the commitment is without matter. 1. That we ought to take care to pro cause expressed; and one that suffers that vide for posterity, as our predecessors have wrong, viz. the party imprisoned; and yet no done for us: and that this provident care can- such wrong-doer but may excuse, if not justify not be expounded to be any distrust of the himself, by this law. In making of laws we performance of his majesty's gracious de- must consider the Inconveniences which may claration; this act providing for perpetuity, to ensue, and provide for the prevention of them, which his highness's promise, unless it were by lex caveat de futuris.' I have taken into my act of parliament, cannot extend. 2. That we thoughts some few Inconveniences, which I having long debated, and solemnly resolved, shall expose to your considerations; not imagin our rights and privileges by virtue of these ing that these can happen in the time of our statutes; if we, now, shall reduce those Decla- present gracious sovereign; but, in acts of parl. rations and those Resolutions into one act, we we must provide for the prevention of all incon must ever hereafter expect to be confined veniences in future times. 1. If a man be in within the bounds of that act; it being made, danger to be imprisoned in the beginning of a at our suit, to be the limits of the prerogative long vacation, for refusing to pay some small in that respect; and it being an act of explana- sum of money; and knows that, by this act, tion, which shall receive no further explanation he can have no enlargement till the return of than itself contains. 3. That by this act we the II. Corpus in the term; and that the charge must provide a remedy against the persons of his being in prison and of his enlargement which detain us in prison, for as to the com- by II. Corpus, will amount to more than the mander there can be nothing certain.-Con- sum, he will part with money to prevent cerning the question itself: It hath been solemn-imprisonment, or to redeem himself thence; ly and clearly resolved by the house, That the because he cannot say any man doth him commitment of a freeman, without expressing wrong, until the return of the II. Corpus; and the cause, at the time of the commitment, is the law resolves a man will pay a fine rather against the law. If, by this act of explanation, than be imprisoned; for the judgment which we shall provide only that the cause ought to is given when one is fined, is ideo capiatur, and be expressed upon the return of the II. Corpus; the highest execution for debt is a capias ad then, out of the words of the statute, it will satisfaciendum, the law presuming any man necessarily be inferred, that before the return will part with his money to gain his liberty: of the H. Corpus the cause need not to be ex- and if the prisoner procure an II. Corpus, and pressed, because the statute hath appointed the be brought into the King's-bench by virtue of it, time of the expression of the cause; and it will yet the cause need not to be then expressed; the be construed, that if the makers of the statutes provision of this law being, that if no cause be had intended that the cause should have been then expressed, he shall be bailed: and no sooner shewn, they would have provided for it cause being shewn upon the return of the H. by the act; and then the act, which we term Corpus, yet it may be pretended, that, at the an act of explanation, would be an act for the time of his commitment, there were strong abridging of Magna Charta and the rest of the presumptions of some great offence; but, statutes: Or, if this act do not make the com- upon farther examination, they are cleared: mitment without expressing the cause to be or it may be said, that the offence was of that lawful, yet it will clearly amount to a toler- nature, that the time of his imprisonment, ation of the commitment, without expressing before the return of the I. Corpus, wa the cause until the return of the H. Corpus; a sufficient punishment: so we may be fre or be a general or perpetual dispensation, be- quently imprisoned in this manner, and never ginning with, and continuing as long as the understand the cause; and have often such law itself. And, in my understanding, the punishments, and have no means to justly words of this intended law, (that no freeman ourselves: and for all these proceedings, this ought to be committed without cause) can very law will be the justification or colour, 2 noways advantage us, or satisfy this objection; If by this act there be a toleration of imprisonfor, till the return of the H. Corpus, he that ment, without shewing cause until the return commits is judge of the cause, or at least hath a of the Habeas Corpus; yet it is possible to aclicense, by this law, till that time to conceal company that imprisonment with such circu the cause; and the gaoler is not subject to any stances of close restraint, and others which I action for the detaining of the prisoner upon forbear to express, as may make an imprisonsuch command; for if the prisoner demand the ment, for that short time, as great a punishcause of his commitment of the gaoler, it will ment as a perpetual imprisonment in the ordibe a safe answer for him to say, that he detains nary manner. 3. The party may be imprisoned the prisoner by warrant, and that it belongs a long time before he shall come to be delivered not unto him to desire those who commit the by this law; the place of his imprisonment prisoner to shew the cause, until he returns the may be in the furthest parts of this kingdom; II. Corpus; and if the prisoner be a suitor to the judges always make the return of the H. know the cause from those that committed Corpus answerable to the distance of the prison

The King's Message to the Commons to rely on his Word.] May 1. Mr. Secretary Cooke delivered to the house the following Message from the king:

from Westminster; the gaoler may neglect the | the acts, providing that no man should be imreturn of the first process, and then the party prisoned but by the law of the land. And almust procure an alias; the gaoler may be then though the king or council, as it hath been obin some other employment for the king, and jected, by might, may commit us without excuse the not returning the body upon that cause, notwithstanding any laws we can make; process; and this may make the imprisonment yet I am sure, without such an act of parl. for a year; and, in the end, no cause being such commitment can have no legal colour; returned, the party may be discharged: but in and I would be loth we should make a law to the mean time he shall have suffered imprison- endanger ourselves: for which reasons I conment; he shall never know the cause; he shall ceive, that, there being so many ways to evade have no remedy for it; nor be able to question this act, we shall be in worse case by it than any for injustice, which have not a justifica- without it; since it provides no remedy to pretion, or excuse by this law. 4. The party may vent our imprisonment without expressing the be imprisoned during his life, and yet there cause to be lawful; and administers excuses shall be no cause ever shewn. I will instance for continuing us in prison, as I have before in this manner. A man may be committed to declared; and thus, by providing for one parthe farthest part of the kingdom westward; ticular, out of reason of state, which possibly he obtains an H. Corpus; before the gaoler may fall out in an age or two, we shall spring receives the H. Corpus, or before he returns a leak which may sink all our liberties; and it, the prisoner by warrant is removed from open a gap, through which Magna Charta, and that prison to another, it may be the furthest the rest of the statutes, may issue out and northern part of the realur; the first gaoler revanish. I therefore conclude, that, in my poor turns the special matter, which will be suf- understanding, (which I submit to better judgcient to free himself; and in like manner the ment) I had rather depend upon our former prisoner may be translated from one prison to Resolutions, and the king's gracions declaraanother, and his whole life shall be a peregri-tions, than to pass an act in such manner as nation, or wayfairing from one gaol to another; hath been proposed." vet he shall never know the cause, nor be able to complain of any who cannot defend their actions by this bill. 5. If the prisoner be brought into the court by H. Corpus, and no cause expressed, and thereupon he be enlarged, he may be presently committed again; and then his enlargement shall only make way for his commitment, and this may continue during his life, and he shall never know the cause; and this not remedied, but rather permitted by this act --And there are also many things to be considered in this matter; the expence of the party in prison, his fees to the gaoler, his costs in obtaining and prosecuting at H. Corpus, and his charges in removing himself, attended with such as have the charge of his conduct; and all this the prisoner must sustain without any satisfaction, or knowing the cause. -The only reason given by those of the other opinion, (that it is requisite the king and council should have power to command the detainer of a man in prison for some time, without expressing the cause) is, because it is supposed that the manifestation of the cause, at first, may prevent the discovery of a treason. The reason is answered by the remedy proposed by this act; it being proposed, that it shall be provided by this bill, that upon our commitment, we may have instantly recourse to the chancery for an H. Corpus returnable in that court, which is always open, that presently upon the receipt thereof the writ must be returned, and the cause thereupon expressed. If then this remedy be really intended, the cause of commitment must presently appear; which contradicts the former reason of state. And, in my opinion, we ought not only to take care that the subject should be delivered out of prison, but to prevent his imprisonment; the statute of Magna Charta, and the rest of

"Mr. Speaker; I have a very short message to deliver from his maj. that shews both his royal care to be rightly understood of this house, and no less care to understand us in the best part; and to shew clearly it shall not be his fault if this be not a happy parliament, his majesty hath commanded me to desire this house clearly to let him know, Whether they will rest upon his Royal Word and Promise, made at several times, and especially by my lord-keeper's speech made in his own presence; which, if they do, he doth assure you, that it shall be really and royally performed." Upon this there was a silence for some time. Then

Mr. Secretary Cooke proceeded thus:This silence invites me to a further speech, and further to address myself. Now we see we must grow towards an issue: for my part, how confident I have been of the good issue of this parliament I have certified in this place and elsewhere; and I am still confident therein. I know his maj. is resolved to do as inuch as ever king did for his subjects all this debate hath grown out of a sense of our sufferings, and a desire to make up again those breaches that have been made. Since thris parliament begun, hath there been any dispence made like that which hath formerly been? When means were denied his maj. being a young king and newly come to the crown, which he found engaged in a war, what could we expect in such necessities? His maj. has called this parliament to make up the breach: his maj, assures us we shall not havé the like cause to complain: he assures us the