pon.] The lores of their come a another confere h about this M Iterations, former p ition of Right: a keeper was to iz esire a good correc would tend to iament. This co ernoon of that da Ened it in the mur ereas at the last cut** ngs propounded the 5, out of a desire e easier passage v to violate, in a , yet not as a thing: u; and, according ntioned it in the b conclude of nothing uainted with it; lature advisemer: G a regal as well as a legal power. Let us give that to the king the law gives him, and no more.' Mr. Pym. I am not able to speak to this question, for I know not what it is. All our Petition is for the laws of England, and this power seems to be another distinct power from the power of the law. I know how to add sovereign to the king's person, but not to his power and we cannot leave' to him a sovereign power;' for we never were possess ed of it.' Mr. Hackwell. We cannot admit of these words with safety: they are applicable to all the parts of our Petition: it is in the nature of a saving, and by it we shall imply as if we had incroached on his prerogative. All the laws we cite are without a saving; and yet now, after the violation of them, must we add a saving? I have seen divers petitions where the subject claimed a right, yet there I never saw a saving of this nature.' Sir Edw. 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 hat there may be the 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 this business. The of the lords, that d unto you shoulx hought it convert This Alteration ition) which they s o be advised and ac breach of the fa hall stand with 6 new thing, nor do we offer to trench on his majesty's prerogative: we may not recede from this Petition, either in part or in whole.' Mr. Noye. To add a saving is not safe: doubtful words may beget ill construction; and the words are not only doubtful words, but words unknown to us, and never used in any act or petition before.' Mr. Selden. 'Let us not go too hastily to the question: if there be any objections, let any propound them, and let others answer them as they think good. If it hath no reference to our Petition, what doth it here? I am sure all others will say it hath reference, and so must we. It doth far exceed all examples of former times. What man can shew me the like? I have made that search that fully satisfies me, and I find not another besides 28 Eliz. We have a great many petitions and bills of parliament in all ages, in all which we are sure no such thing is added. That clause of 28 Edw. 1. was not in the Petition, but in the king's answer.-In Magna Charta there were no such clauses. The Articles themselves are to be seen in a library at Lambeth, in a book of that time, upon which the law was made. There was none in the articles in king John's time, for these I have seen; and there is no saving. In the statutes of Confirmatio Chartarum,' is a saving, les antients aids; that is, pur fille maryer, & pur faire fitz chivalier, and for ransom. And in the articles of king John in the original charter (which I can shew) there those three aids were named therein, and they were all known. In the 25th Edw. 3. there is a Petition against Loans, there is no saving; and so in others. As for that Addition in the 28th of Edw. 1. do but observe the petitions after Magna Charta; as 5 Edw. 3. they put up a petition; whereas, in Magna Charta, it is contained, that none be imprisoned, but by due process of law; those words are not in Magna Charta, and yet there is no saving: and conclusion of the of it. If we grant this, by implication we give so in the 28th of Edw. 3. and 36, 37, and 42 read unto you. dition being debated they are; what is 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 of 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 & ecclesiæ. 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 it disputed.' Sir Tho. Wentworth. If we do admit of this Addition, we shall leave the subject worse than we found him; and we shall have little thanks for our labour when we come home. Let us leave all power to his maj. to punish mal factors but these laws pro not necnaint of Edw. 3. all which pass by petition, and yet there is no saving in them: and there are in them other words that are not in Magna Charta, and yet no saving.-As to what we declared, by the mouth of our speaker, this parliament, that it was far from our heart to encroach on the king's prerogative; we then spake of the king's prerogative by itself, and we are bound to say so: but speaking of our own rights, shall we say, We are not to be imprisoned saving, but by the king's Sovereign Power?' Say, my lands (without any title) be seized in the king's hands, and I bring a Petition of Right; and I go to the king and say, I do by no means seek your maj's right and title; and, after that, I bring a petition, or monstrance de droit, setting forth my own right and title; and, withal, set down a saving, that I leave entire his maj.'s right; it would be improper. It was objected, that in the 28th of Edw. 1. in the end of Articuli super Chartas,' which was a con AL vant le droit & signiory; the words are in that roll that is now extant, but the original roll is not extant.-In the 25th of Edw. 3. there was a confirmation of the charter. In the 27th of Edw. 3. the parliament was called, and much stir there was about the charter, and renewing the articles; but then little was done. In 28 Edw. 1. the commons, by petition or bill, did obtain the Liberties and Articles at the end of the parliament; they were extracted out of the roll, and proclaimed abroad. The Addition was added in the proclamation ; but in the bill there was no savant;' yet afterwards it was put in; and to prove this, though it is true there is no parliament-roll of that year; yet we have histories of that time: in the library at Oxford, there is a Journal of a Parliament of that very year which mentions so much; as also in the public library at Cambridge, there is in a MS. that belonged to an abbey: it was of the same year, 28 Edw. 1. and it mentions the parliament and the petitions, and Articulos quos petierunt sic confirmavit rex, ut in fine adderet, salvo jure coronæ regis,' and they came in by proclamation. But, in London, when the people heard of this clause being added in the end, they fell into execration for that addition; and the great earls, that went away satisfied from the parliament, hearing of this, went to the king; and afterwards it was cleared at the next parliament. Now, there is no parliament roll of this, of that time; only in the end of Edw. 3. there is one roll that recites it.' Mr. Speaker; In our Petition of Right we mention the laws and statutes; by whic it appeareth, that no tax, loan, or th like, ought to be levied by the king, but b common assent in parlament: that no free man ought to be imprisoned but by the law o the land: and that no freeman ought to b compelled to suffer soldiers in his house. I the Petition we have expressed the breach o these laws, and desire we may not suffer the like; all which we pray as our rights and li berties. The lords have proposed an Addition to this petition, in these words: whether wo shall consent to this Addition, is the subject of this day's discourse: and because my lord keeper, at the conference, declared their londships had taken the words of the Petition apart, I shall do so too. The word leave,' in a petition, is of the same nature as savag in a grant or act of parliament: when a man grants but part of a thing he saves the rest; when he petitions to be restored but to part, he leaveth the rest: then, in the end of our Petition, the word leave' will imply, that something is to be left of that, or at least with a reference to what we desire. The word entire' is very considerable. A conqueror is bound by no law, but hath power dare leges; his will is a law: and although William the Conqueror, at first, to make his way to the crown the more easy, and the possession of it more sure, claimed it by title; yet afterwards, when there were no powerful pretenders to the crown, the title of conquest (to introduce Reasons given by the Lords for their Addi- that absolute power of a conqueror) was claintion.] The lords afterwards at a conference, ed; and the statute of Magna Charta, and tendered reasons to fortify their. Addition; other statutes mentioned in our Petition, do which were briefly reported to the commons principally limit that power. I hope it is as that the lord-keeper said, "That the lords lawful for me to cite a Jesuit, as it is for Dr. were all agreed to defend and maintain the just Manwaring to falsify him; Suarez, in his first liberties of the subject, and of the crown; and book, de Legibus, c. 17. delivereth bis opinion that the word 'leave' was debated amongst in these words, Amplitudo & restrictio pothema; and thereby they meant to give the testatis regum, circa ea quæ per se mala vel king nothing new, but what was his before: as injusta non sunt, pendent ex arbitrio homito the words 'Sovereign Power,' as he is a kingnum, & ex ambigua conventione, vel pacto, he is a sovereign, and must have power; and he said the words were easier than the word prerogative. As for the word that' it is a relative and referred to that power, that is for the safety of the people; and this, said he, can never grieve any man; being thus published, it is not sovereign power in general. But now, in consultation of our reasons, he said, Magna Charta was not with a saving; but, said he, you pursue not the words of Magna Charta, and therefore it needs an Addition. As for the 28th Edw. 1. he said there was a 'sav-restraining of that Sovereign Power.' The ing, and an ill exposition cannot be made of this; and both houses have agreed it in substance already; that the comnions did it in a speech delivered by the Speaker; and that we say we have not a thought to incroach on the king's sovereignty; and why may we not add it in our Petition ?" Mr. Mason's Speech in Answer thereto.] Upon this report. Mr Mason stake as follows * inter reges & regnum. And he farther expresseth his opinion, that the king of Spain was so absolute a monarch, that he might impose tribute without consent of his people, until about 200 years since; when it was concluded between him and his people, that with out consent of his people by proxies, he should not impose any tribute. And Suarez's opinion is, that, by that agreement, the kings of Spain are bound to impose no tribute without consent. And this agreement that author calls a statutes then, mentioned in our Petition, restraining that absolute power of the conqueror; if we recite those statutes, and say, we leave entire that Sovereign power,' we do take away that restraint, which is the virtue and strength of those statutes; and do hereby set at liberty this claim of sovereign power of a conqueror, which then will be limited and restrained by no laws, this may be the danger of the word made up of several wits, and may be dissolved by one commission, cannot be certain to decide this question: we cannot resolve that. If the judges shall determine the words of the king's Letter read in this house, reciting, 'That the cause of commitment may be such, that the judges themselves have not capacity of judicature, nor rules of law to direct and guide their judgments in cases of that transcendent nature; why then the judges, and the judgments, may be easily conjectured. It hath been confessed by the king's counsel, that the statute of Magna Charta binds the king, then it binds his sovereign power; and here is an Addition of saving the king's sovereign power.'-I shall next endeavour to give some answer to the Reasons given by the lords. The 1st is, That it is the intention of both houses, to maintain the just liberty of the subject, and not to diminish the just power of the king; and therefore the expression of that intention in this Petition, cannot prejudice us. which I answer: 1st, That our intention was, and is, as we then professed; and no man can assign any particular in which we have done to the contrary; neither have we any way transgressed in that kind in this Petition: and if we make this Addition to the Petition, it would give some intimation, that we have given cause or colour of offence therein; which we deny, and which if any man conceive so, let him assign the particular, that we may give answer thereunto. By our Petition, we only desire our particular rights and liberties to be confirmed to us; and, therefore, it is not pro Το lords as observable, is the particle that.' And it was said, that all sovereign power is not mentioned to be left, but only that with which the king is trusted for our protection, safety, and happiness: but I conceive this to be an exception of all sovereign power; for all sovereign power in a king, is for the protection, safety, and happiness of his people. If all sovereign power be excepted, you may easily judge the consequence; all loans and taxes being imposed by colour of that sovereign power. The next word is trusted,' which is very ambiguous; whether it be meant trusted by God only, as a conqueror; or by the people also, as a king; who is to govern also accordiing to laws, ex pacto. In this point, I will not presume to adventure further; only I like it not, by reason of the doubtful exposition it admits. I have likewise considered the proposition itself, and therein I have fallen upon a dilemma, that this Addition shall be construed, either to refer unto the Petition, or not: if it do not refer unto the Petition, it is meerly uscless and unnecessary, and unbefitting the judgment of this grave and great assembly to add to a Petition of this weight. If it hath reference unto it, then it destroys not only the virtue and strength of our Petition of Right, but our rights themselves: for the Addrion, being referred to each part of the Petition, will necessarily receive this construction, viz. That none ought to be compelled to make any gift, loan, or such like charge, without common consent, or act of parliament; unless it be by the sovereign power,' with which the king is trusted for the protection,per for us to mention therein sovereign powsafety, and happiness of his people: that none er' in general, it being altogether impertinent ought to be compelled to sojourn or billet sol- to the matter of the Petition. There is a diers, unless by the same sovereign power: great difference between the words of the Adand so of the rest of the rights contained in the dition, and the words proposed therein as the Petition. Then the most favourable construc- reason thereof, viz. between just power, which tion will be, that the king hath an ordinary may be conceived to be limited by laws; and prerogative, and by that he cannot impose sovereign power,' which is supposed to be taxes or imprison; that is, he cannot impose transcendent and boundless. The 2nd reason, taxes at his will, or employ them as he pleaseth: delivered by their lordships, was, That the but that he hath an extraordinary and trans-king is sovereign; that as he is sovereign, cendent sovereign power,' for the protection he must have power, and that this sovereign and happiness of his people; and for such pur-power' is to be left for my part, I would pose he may impose taxes, or billet soldiers as so leave it, as not to mention it; but if it he pleaseth. And we may assure ourselves, should be expressed to be left in this Petithat hereafter all loans, taxes, or billeting of tion, as it is proposed, it must admit somesoldiers, will be said to be for the protection, thing to be left in the king of what we pray, or safety, and happiness of the people: certainly, at least admit some sovereign power in his hereafter, it will be conceived, that an house maj. in these privileges which we claim to be of parliament would not have made an unne- our right; which would frustrate our Petition cessary Addition to this Petition of Right; and and destroy our right, as I have formerly therefore it will be resolved, That the Addition shewed. The Srd reason given for this Addihath relation to the Petition, which will have tion, was, That in the statute of Articuli such operation as I have formerly declared: super Chartas,' there is a saving of the seigniory and I the rather fear it, because the late loan of the crown. To which I give this auswer, and billeting have been declared to have beenThat Magna Charta was confirmed above 30 by sovereign power,' for the good of our selves; and if it be doubtful whether this proposition hath reference to the Petition or not, I know who are to judge whether loans or imprisonments hereafter be by that sovereign Power, or not?-A parliament, which is a body times; and a general saving was in none of these acts of confirmation, but in this only; and I see no cause we should follow one ill, and not 30 good precedents; and the rather, because that saving produced ill effects, that are well known. That saving was by act of Petition of Right. These are the answers have conceived to the reasons of their lord ships; and the exposition, I apprehend, whic must be made of the proposed words, if adde to our Petition. And therefore I conclude that, in my opinion, we may not consent t this Addition, which yet I submit to bette judginents.' the next day, on the same affair. parliament; the conclusion of which act is, that in all those cases the king did well, and all those that were at the making of that ordinance did intend, that the right and seigniory of the crown should be saved: by which it appears, that the saving was not in the Petition of the commons, but added by the king; for in the Petition, the king's will is not expressed. In that act the king did grant, and part with, to Further Proceedings, relating to the Peti his people, divers rights belonging to his prero- tion of Right.] May 19. The commons re gative; as, in the first chapter, he granted, that ceived a Message from the king, importing the people might chuse men, which might only, "That it was not his intent to interrup have power to hear and determine complaints them with his messages; but being obliged made against those that offended in any point go to Portsmouth, in a day or two, on pressing of Magna Charta; though they were the king's occasions, he desired they would procee officers, and to fine and ransom them: and in with the business they were upon with al the ch. 8, 12, and 19 of that statute, the king expedition."-This message was no soone parted with other prerogatives; and therefore delivered, than they agreed to send to the lords there might be some reason of the adding of, to have a free and a mutual conference with that sovereign power,' by the king's council: them, about the exceptions their lordships but, in this Petition, we desire nothing of the had taken to their Petition, as well as the Ad king's prerogative; but pray the enjoying of ditional Clause, proposed at the last confer our proper and undoubted rights and privi- ence; to which they said, they were urged by leges; therefore there is no cause to add any a gracious message from his majesty. This words, which may imply a saving of that which conference was held the same day, and the concerns not the matter in the Petition.-The several Alterations again debated between 4th reason given by their lordships, was, that them: but no conclusion was made of the busiby the mouth of our Speaker, we have, in thisness, for that time; nor at another conference, parliament, declared, That it was far from our intention, to incroach upon his majesty's prerogative; and that therefore it could not prejudice us, to mention the same resolution in an Addition to this Petition. To which I answer, That that declaration was a general answer to a message from his majesty to us, by which his maj. expressed, that he would not have his prerogative straitened by any new explanation of Magna Charta, or the rest of the statutes and therefore that expression of our Speaker's was then proper to make it have reference to this Petition; there being nothing therein contained but particular rights of the subject, and nothing at all concerning his majesty's prerogative, 2ndly, That answer was to give his maj. satisfaction of all our proceedings in general; and no man can assign any particular in which we have broken it; and this petition justifies itself, that in it we have not offended against our protestation: and I know no reason why this declaration should not be added to all the laws we shall agree on, in this parliament, as well as to this Petition. The last reason given was, That we have varied in our Petition from the words of Magna Charta; and therefore it was very necessary, that a saving should be added to the Petition. I answer, That in the statutes of 5, 25, and 28 Edw. 3. and other statutes, by which Magna Charta is confirmed, the words of the statutes of explanation differ from the words of Magna Charta itself; the words of some of the statutes of explanation being, That no man ought to be apprehended, unless by indictment, or due process of law; and the other statutes differing from the words of Magna Charta in many particulars; and yet there is no saving in those May 21. The lord-keeper delivered a Message to the lords, from the king, to this purpose: "That his maj. had commanded him to let them know, that he discerned all his affairs depended upon the resolution of that house touching the Petition: that his wants were great and pressing, and himself to go shortly to Portsmouth; there fore, he desired, before his going, to see his business in forwardness: and expected, that they would resolve, that day whether they would join with the commons in the Pe tition or not." The lords, having taken this Message into consideration, returned for Answer, by the duke of Buckingham, That they had sent to the commons to require an im mediate conference about it; and their an swer was, that they could not, conveniently meet till the next morning. But it was not till May 25d that this conference was held and in the afternoon of that day, the lordkeeper was ordered to report one part of the conference, and the lord-president the other The Lord Keeper's Report of Mr. Glanville'. Speech against the Addition made by the Lords. The Lord-keeper began and reported hi part of the Conference, delivered in a speeci from Mr. Glanville, to this purpose: "My Lords, I am commanded by the com mons, to deliver unto your lordships the reasons, why they cannot admit of the Ad dition tendered unto them by your lordships But for an introduction to the business please you to remember, that a Petition of Right was shewed to your lordships, where in we desired you would join with us; a Pe tition, my lords, fitting for these times, ground ed upon law, and seeking no more than the of 4 parts: 1. loans, aids, and taxes: 2. im- of the king; for if we should tell him what we prisonment of men's persons: 3. billetting of should not demand, we should then not proceed soldiers: 4. commissions issued for martial in a parliamentary course. Now, for that law, and put in execution upon several per- which is alledged by your lordships, De Artisons.Groaning under the burthen of these, culis super Chartas,' That, my lords, is not we desire remedy, and wish your lordships like this, which is a saving upon particulars, but would join with us; which you having taken this petition, consisting of particulars, would be into consideration, we must confess have dealt destroyed by a general saving. The saving de nobly and freely with us, not to conclude any Articulis super Chartas,' are of 3 aids; for thing till you hear our just reasons; for which ransoming the king's person, for knighting the we thank your lordships, and hope you will king's eldest son, and once for marrying the value those reasons, which we shall now offer. king's eldest daughter. These, by the form of The work of this day will make a happy issue, the petition, shew, that they came in upon the if your lordships please to relinquish this, as king's auswer, and not upon the petition; first we formerly, upon conference with your lord- then followed the savings, which under favour ships, have done some other things: for the we think are no reasons to make us accept of proposition, my lords, we have debated it this saving, being not pertinent to the petition.thoroughly in our house: and I am command-The statute 28 Edw. I. (which confirmed Maged to deliver unto you the reasons, why we na Charta with a saving) was, in fact, set aside cannot insert this clause. Neither your lord-by the 34th of the samo king, which restored ships nor we desire to extend liberty be- Magna Charta to its first purity: and if the said yond its due bounds, nor to incroach upon the statute of the 28th did lay some blemish upon king's prerogative.-The 1st reason I am to it, shall we now make the subject in worse lay down is touching Sovereign Power, which case, by laying more weight upon it? God forI beseech you not to accept as mine own, being bid!-In the next place, you reason thus, That but a weak member of that strong body; but, this which you wish we would adınit of, is no as the reasons of the whole house, upon great more than what we formerly did profess by our and grave considerations. First, the words Speaker, when we sent the king word, we had Sovereign Power, hath either reference, or no no purpose at all to trench upon his prerogareference to the petition: if no reference, tives:' It is true, my lords, we did so; but this then superfluous; if a reference, dangerous, was not annexed to any petition, for in that and operative upon the petition: and we think manner, we should never have done it.-And your lordships purpose is not to offer unto us here I am commanded (with your favours) to any thing that may be vain, or to the hindrance deliver unto your lordships what a learned of any thing wherein you have already joined member of our house, (Mr. Selden) delivered with us. The Petition declareth the right of there, touching this point. The king, saith the subject, which yet may be broken by the he, and the subject have two liberties, two manwords sovereign power, and so the virtue of nors joining one upon another: the king is the petition taken away: the end of the pe- informed the subject hath intruded upon him, tition is not to enlarge the bounds of law; but, but upon trial it appeareth not to be so; were their liberties being infringed, to reduce them to it fitting think you, that the subject should their antient bounds: and shall we, by admit- give security, that he should not incroach or ting of these words, 'sovereign power, instead intrude on that mannor, because the king had of curing the wound, launch it, and cut in been informed he did so? I think you will be deeper? The next point is the word 'intrust- of another mind. Wherefore I am commanded; a word of large latitude and deep sense. ed (seeing we cannot admit of this Addition) We know there is a trust vested in the king, to desire your lordships, to join with us in the but regulated by law; we acknowledge that Petition; which being granted, and the hearts in penal statutes, the king may grant another of the king and people knit together, I doubt power to dispense with the law: but Magna not but his maj. will be safe at home, and Charta, inflicting no penalty, leaveth no trust; feared abroad." but claimeth its own right; therefore the word The Lord President's Report of Sir H. intrusted,' would confound this distinction. Martin's Speech on the same Occasion.] The Our next reason is, We think it absolutely re-lord-keeper having finished his report of Mr. pugnant to any course of parliament, to put a saving to the petition: in former times, the course of petitioning the king was this. The lords and the speaker, either by words or writing, preferred their petition to the king; this then was called the bill of the commons, which being received by the king, part he rejected and put out, other part he ratified; and as it came from him it was drawn into a law, but this course, in the 2 Hen. 5. was found prejudicial to the subject; and since in such cases, they have petitioned by petition of right, as we now do, who come to declare what we demand Glanville's speech at the conference, the lordpresident proceeded to the other, which was spoken by sir Henry Martyn; as follows: "My Lords; The work of this day, wherein the house of commons have employed the gentleman who spake last and myself, is to reply to the answer, which it hath pleased the lord-keeper to make to those reasons, which the commons offered to your lordships consideration, * Both these speeches are taken from a pamphlet printed in the year 1628, and examined by the lords Journals. |