)fl 397 
 .R4 
 Copy 2 
 
 
 Oltj^ lmii]^r0ttg nf iltnn^snta 
 
 STUDIES IN THE SOCIAL SCIENCES 
 
 NUMBER 8 
 
 THE PETITION OF RIGHT 
 
 BY 
 
 FRANCES HELEN RELF, Ph.D. 
 
 y 
 
 MINNEAPOLIS 
 
 Bulletin of the University of Minnesota 
 
 December 1917 
 
 Price: 75 Cents 
 
 Monograph 
 
RESEARCH PUBLICATIONS 
 
 OF THE 
 
 UNIVERSITY OF MINNESOTA 
 
 These publications contain the results of research work from various depart- 
 ments of the University and are offered for exchange with universities, scientific 
 societies, and other institutions. Papers will be published as separate monographs 
 numbered in several series. There is no stated interval of publication. Application 
 for any of these publications should be made to the University Librarian. 
 
 STUDIES IN THE SOCIAL SCIENCES 
 
 1. Thompson and Warber, Social and Economic Survey of a Rural Township in 
 Southern Minnesota. 1913. $0.50. 
 
 2. Matthias Nordberg Orfield, Federal Land Grants to the States, with 
 Special Reference to Minnesota. 1915. $1.00. 
 
 3. Edward Van Dyke Robinson, Early Economic Conditions and the Develop- 
 ment of Agriculture in Minnesota. 1915. $1.50. 
 
 4. L. D. H. Weld and Others, Studies in the Marketing of Farm Products. 
 1915. $0.50. 
 
 5. Ben Palmer, Swamp Land Drainage, with Special Reference to Minnesota. 
 1915. $0.50. 
 
 6. Albert Ernest Jenks, Indian- White Amalgamation: An Anthropometric 
 Study. 1916. $0.50. 
 
 7. C. D. Allin, a History of the Tariff Relations of the Australian Colonies. 
 In press. 
 
 8. Frances H. Relf, The Petition of Right. 1917. $0.75 
 
 9. Gilbert L. Wilson, Agriculture of the Hidatsa Indians: An Indian Inter- 
 pretation. 1917. $0.75. 
 
 10. Notestein and Relf, Editors, Commons Debates for 1629. In press. 
 
 11. Raymond A. Kent, State Aid to Public Schools. In press. 
 
 STUDIES IN THE PHYSICAL SCIENCES AND MATHEMATICS 
 
 1. Frankforter and Frary, Equilibria in Systems Containing Alcohols, Salts, 
 and Water. 1912. $0.50. 
 
 2. Frankforter and Kritchevsky, A New Phase of Catalysis. 1914. $0.50. 
 
 STUDIES IN ENGINEERING 
 
 1. George Alfred Maney, Secondary Stresses and Other Problems in Rigid 
 Frames: A New Method of Solution. 1915. $0.25. 
 
 2. Charles Franklin Shoop, An Investigation of the Concrete Road-Making 
 Properties of Minnesota Stone and Gravel. 1915, $0.25. 
 
 3. Franklin R. McMillan, Shrinkage and Time Effects in Reinforced Con- 
 crete, 1915. $0.25. 
 
 (Continued inside back cover) 
 
©t}^ Imwrattg nf JHtnuFBOta 
 
 STUDIES IN THE SOCIAL SCIENCES 
 
 NUMBER 8 
 
 THE PETITION OF RIGHT 
 
 BY 
 
 FRANCES HELEN RELF, Ph.D. 
 
 MINNEAPOLIS 
 
 Bulletin of the University of Minnesota 
 
 December 1917 
 

 Copyright 1917 
 
 BY THE 
 
 University of Minnesota 
 
 Tiia UnivareiVjr 
 IAN (8 I9t8 
 
PREFACE 
 
 In the history of parliamentary procedure, the Petition of Right is unique ; 
 it has no precedent, it has never served as one. It was not, as has 
 been commonly supposed, a law, or even the equivalent of a law. Though 
 in the ordinary form of a petition, it differs from any other petition that 
 was ever presented to a king. The peculiar character of the Petition is 
 what I hope, in this study, to prove and explain. Such a study would 
 hardly justify itself if its end were only the explanation of a unique bit of 
 parHamentary procedure. Procedure which never became a precedent has 
 little value in itself. In the case of the Petition of Right, the procedure 
 has value because it alone reveals what a struggle took place in 1628 be- 
 tween Charles I and the House of Commons. From the content of the 
 Petition all historians have recognized that in that year a great constitu- 
 tional issue was at stake. But from lack of information they have assumed 
 that the passage of the Petition denoted a complete victory for the Com- 
 mons, a result which could have been the end only of a fight where the 
 opponents were of very unequal strength. Not one writer has explained 
 why the Commons went by petition instead of bill. Even Gardiner, who 
 was the first to point out that they tried first to go by bill, missed entirely 
 the significance of the change. In missing this he missed much, for in the 
 change from bill to petition and in the subsequent procedure upon the 
 petition are revealed the bitterness, the, at times, almost complete hope- 
 lessness of the struggle. More than that they alone reveal that the end 
 was not victory, as has been commonly supposed, but compromise. 
 
 Samuel Rawson Gardiner wrote his story of the passage of the Peti- 
 tion of Right some forty years ago. The sources accessible to him were 
 so much more ample, his insight and critical faculty were so much greater 
 that he has entirely superseded all who wrote before him. Since his day 
 nothing new on this subject has been written. Perhaps one reason is to 
 be found in the fact that the student hardly expects to find out anything 
 new about so important a subject. But an even more probable reason is 
 to be found in the prevalent feeling that Gardiner made the period of the 
 early Stuarts peculiarly his own; that he not only superseded all who had 
 written before, but that for all time to come those who follow can be only 
 gleaners in his field. Such a conception betrays a misunderstanding of 
 the real intention of Gardiner's work. What he really did was to give a 
 general survey of what may be called, when we consider the great number 
 of important events that are crowded into it, a long period. For most 
 periods such a work has followed, and been based upon, particular studies. 
 
iv PREFA CE 
 
 Gardiner had no such help; he was practically a pioneer in the field. ^ As 
 such, the only way that he could possibly cover the ground was by at- 
 tempting nothing more than to tell what happened. Such a treatment 
 ought to encourage rather than discourage further investigation. It is but 
 the starting point for the student who wishes to find out the why and 
 wherefore of some particular problem. 
 
 With only the material that Gardiner had it would be possible for the 
 student, who wished to make an exhaustive study of the Petition of Right, 
 to tell much more than Gardiner told. But on the other hand it would 
 be ridiculous for any student of to-day to think that in the forty years 
 which have elapsed since Gardiner wrote those particular chapters of his 
 history, no new material had been found. Through additions to the Brit- 
 ish Museum and even more through the work of the Historical Manu- 
 scripts Commission a great deal of valuable material on this subject has 
 been brought to light. It is only since more detailed jotunals of what 
 took place in the lower House of Parliament in 1628 have been discovered 
 that it has been possible to ascertain the real nature of the Petition of 
 Right. Gardiner, no more than his predecessors, knew enough to doubt 
 that the Petition had the force of a law. His additional material failed 
 him entirely for the last month of the Session, days so very important for 
 the light they throw on the nature of the King's answer as weU as on the 
 procedure which followed. Even for the first part his material was not 
 ample enough to make the issues clear.^ With the material which is now 
 available, it is possible for the first time to make an adequate study. The 
 sources not before used are Borlase, Grosvenor, Lowther, the second vol- 
 ume of the Harleian Notes, and that part of the True Relation which 
 narrates the proceedings for the last month of the Session. Including 
 the old with the new, there are six independent accounts of proceedings 
 in the House of Commons. Only one of these, Nicholas, had been used 
 in its entirety. Three are wholly new. It was this wealth of new ma- 
 terial which suggested as well as made possible this study of the Petition 
 of Right.3 
 
 In this study the writer has assumed on the part of the reader a knowl- 
 edge of Gardiner's account of the Session of Parliament for 1628. As has 
 already been stated, that must be the starting point for any detailed study 
 of this period. By taking for granted a familiarity with that work, the 
 
 • For a comparison of the source material used by Gardiner and his predecessors, see the biblio- 
 graphical notes. Not only was Gardiner the first to make use of an account which was anywhere near 
 complete, but he was the first who had any other independent accounts by which to check it. The diaries 
 he used are not wholly adequate for this purpose, as can be seen from the comment upon them. 
 
 ' It is the Borlase account which makes one realize the significance of the draft for the judgment 
 which was brought in by Selden in his report. 
 
 • It was while working with Mr. Wallace Notestein on the sources for the Session of 1629 that I first 
 became acquainted with these manuscripts. In searching for copies of the True Relation, we discovered 
 this new material for the session of 1628. 
 
PREFA CE V 
 
 writer cotdd omit a narrative of events and an account of the men who 
 were leaders in the struggle. By disregarding chronological sequence and 
 explanation of men and events it became possible to present the subject 
 topically and so bring out at one time all the evidence to prove a given 
 point. 
 
 To the University of Minnesota the writer is indebted for making it 
 possible to do all the work on this study while in residence. Under a 
 research appropriation, photographs were made of the Grosvenor manu- 
 scripts, and rotographs of the Borlase and Harleian. Rotographs of the 
 Nicholas Notes were already in the University Library, as was also the 
 large collection of printed sources whic^i makes Minnesota one of the few 
 Universities in this country for research in the early Stuart period. Through 
 the kindness of Mr. Worthington Ford, the University was enabled to 
 borrow from the Massachusetts Historical Society their copy of the True 
 Relation. Too much can not be said for the advantages to be derived 
 from having all one's material in the same place. Good results can not 
 be obtained if one is obliged to consult one source at a time and then de- 
 pend upon notes. The writing in seventeenth century diaries is so diffi- 
 cult to decipher that one dare not depend upon the work of a copyist, 
 but modem photography gives the student the equivalent of the orig- 
 inals themselves. It has made it possible in this case to compare with 
 each other manuscripts in Trinity College, Dublin; the British Museum; 
 the Record Office; and at the University of Minnesota. 
 
 The writer is under obligation to Professor C. D. Allin for help on the 
 judicial powers of Parliament in the seventeenth century, to Dean W. 
 R. Vance and Professor A. B. White for reading and criticizing the whole 
 manuscript, but especially to Professor Wallace Notestein tmder whose 
 supervision the study was prepared as a doctor's dissertation. 
 
 Frances Helen Relf 
 

CONTENTS 
 
 Chapter 
 
 I. The Decision in the Five Knights' Case 1 
 
 II. Statutes, Precedents, and Records 11 
 
 III. The Conjunction of Abuse and Remedy 20 
 
 IV. By Bill - 27 
 
 V. By Petition 36 
 
 VI. Formal Action on the Petition of Right 44 
 
 Appendix 
 
 A. The Commons' Resolutions 61 
 
 B. The Bill of Right 63 
 
 C. Proposed Answers to the Petition of Right 64 
 
 D. Bibliographical Notes 68 
 
KEY TO ABBREVIATIONS 
 
 This monograph has been based largely upon certain important manu- 
 scripts. For reference to these in the footnotes it has been found convenient 
 to adopt arbitrary abbreviations, the key to which is given below. Where 
 copies of the manuscripts have been used, the page references in the foot- 
 notes are to them and not to the originals. To avoid any misimderstand- 
 ing there have been included in the key the often-used abbreviations of cer- 
 tain printed material. 
 
 B The Borlase Manuscript, British Museum, Stowe 366. 
 
 G Sir Richard Grosvenor, Notes of Proceedings, Library of Trinity College, 
 
 Dublin. 
 
 H Notes, British Museum, Harl. 2313 and 5324. 
 
 L Lowther, Notes, Hist. MSS Comn. 13th Rep. App. 7, pp. 33-60. 
 
 M The True Relation. The copy used is that in the possession of the Massa- 
 
 chusetts Historical Society. 
 
 N Sir Edward Nicholas, Notes, Miss Louise Sumner's manuscript edition. 
 
 Library of the University of Minnesota. 
 
 L.J. Journals of the House of Lords, 
 
 C.J. Journals of the House of Commons. 
 
 O.P.H. The old Parliamentary History. 
 
 E.P. Ephemeris Parliamejilaria. 
 
THE PETITION OF RIGHT 
 
 CHAPTER I 
 
 THE DECISION IN THE FIVE KNIGHTS' CASE 
 
 The Petition of Right was the culmination of the struggle in 1628 be- 
 tween Charles I and the Commons. Any explanation of the Petition must, 
 therefore, begin with an analysis of that struggle. 
 
 It was only with the greatest reluctance, urged on by his need of money, » 
 that the King had called his third Parliament. Neither he nor anyone- 
 else doubted that there would be trouble with the Commons, that there 
 would be a protest against his arbitrary government. The King's fears 
 were somewhat allayed when he found that the protest was not to take 
 the form that he most feared — that of an attack upon his ministers. The 
 Commons had determined to fight principles rather than men. They be- 
 gan by an enumeration of grievances. Miscellaneous as these appear 
 on the surface, they all go back to a common cause, the King's tmconsti- 
 tutional methods of taxation. Of these the forced loan was the most 
 obnoxious; it would seem at first that that was the root of all the evil. 
 From it had grown the abuses of arbitrary imprisonment and billeting, 
 both having been used as punishment for non-payment. But as one reads 
 more carefully the informal debate of those first few days, he comes to 
 realize that the Commons were conscious of a greater grievance than any 
 they specifically enumerated. They feared absolutism and the end of 
 parliaments. It was this fear that made them focus their effort on that 
 grievance which was most directly a protest against arbitrary government, 
 that of imprisonment by the King without any cause being shown. That 
 the King and his ministers realized fully the significance of the protest 
 is shown by their unwillingness to yield on this point though they grant- 
 ed everything else demanded by the Commons. Thus arbitrary imprison- 
 ment became the great bone of contention between King and Commons. 
 A careful consideration of this grievance becomes, therefore, the first step 
 in explanation of the Petition of Right. 
 
 Unlike the other grievances enumerated by the Commons in the Peti- 
 tion of Right, that of arbitrary imprisonment was purely judicial in its 
 nature. The others were each a general protest against many particular 
 cases of a similar nature. This harked back to one special case, which 
 had already been tried in the courts, a case which at the time was always 
 referred to as ''the late habeas corpus case," but which is better known 
 to-day as that of the Five Knights.^ In order to understand why that 
 
 • It is also popularly referred to as "Darnel's Case," and that in spite of the fact that Darnel refused 
 to plead. 
 
2 FRANCES HELEN RELF 
 
 particular case was made a parliamentary grievance it is necessary to ex- 
 amine it in detail with reference, first, to the decision of the judges. 
 
 The case came up in 1627, and was the direct outgrowth of the attempt 
 to collect the forced loan. The commission and instructions for collect- 
 ing the loan had been issued in September of 1626.^ From the beginning 
 there were many who refused to contribute,^ but it was not until Hyde 
 had been made Chief Justice of the King's Bench that commitment for 
 refusal began. According to a letter- writer of the time,^ commitment had 
 been urged by certain privy counsellors but the King had stood out against 
 it; with a subservient chief justice, however, the danger from such a course 
 was greatly lessened. From the beginning of February the commitments 
 came thick and fast. As a result many paid, but many others continued 
 to refuse, glorying in their imprisonment as a public protest against the 
 illegality of the loan. As the months went by, however, and the hope of 
 release grew slight,^ some of the prisoners began to realize that the country 
 was threatened with a greater danger than that of arbitrary taxation. If 
 the privy counsellors were to be permitted to commit men to prison at 
 will, no resistance short of revolution could keep them from enforcing any 
 demand they wished. Then it was that five of the prisoners^ determined 
 to bring their case before the King's Bench, and to that end applied for 
 the writ of habeas corpus. The writ was granted; largely, no doubt, be- 
 cause even as early as this the case had gained great publicity.'^ "This 
 Habeas Corpus," said Attorney Heath, "was sent out by special command, 
 because these gentlemen gave out in speeches . . . that they- did wonder 
 why they should be hindered from trial. "^ Even with Hyde as chief justice 
 the King still stood out against the legality of the loans being tested in 
 the courts. He gave way and consented to the trial only after a con- 
 ference with the judges at which he was "appeased by reasons."^ It 
 seems probable that at this conference the character of the return to the 
 
 ' Cal. S. p. Dom., 1625-26, pp. 435. 436. 
 
 » to Mead. October 6, 1626. Court and Times 1:154. 
 
 * to Mead, November 4; December 1. Ibid. 165, 177. 
 
 5 Mead to Stuteville, June 9, 1627. "The gentlemen in prison have no hope of relief." to 
 
 Mead, June 30. "Knightley was threatened by their Lordships with 7 years more imprisonment if he 
 would not yield to the loan." Ibid. 239, 249. 
 
 *Sir Thomas Darnel, Sir John Corbet, Sir Walter Erie, Sir John Heveningham, and Sir Edmund 
 Hampden. 
 
 ' It must be borne in mind that at this time there was no habeas corpus law. The writ was not 
 one of right but of grace. For the origin of the writ see Edward Jenks, "The Story of the Habeas Corpus," 
 Law Quarterly Review 18:64-77. One has only to turn to some of the older historians in order to appreciate 
 Professor Jenks's study. Hallam states: "The writ of habeas corpus has always been a matter of right" 
 {Constitutional History 1:235). Until one gets away from that idea, he is in no position to understand 
 either the Five Knights' Case or the Resolution of the Judges in 34 Eliz. 
 
 8 Cobbett, Stale Trials 3:4. 
 
 9 Pory to Mead, November 2. Court and Times 1 :280. See also Beaulieu to Pickering, November 28, 
 ibtd. 294. 
 
THE PETITION OF RIGHT 3 
 
 writ of habeas corpus was determined upon. By stating simply, without 
 any extenuating circumstances, that the parties were committed by the 
 special command of the King, the judges could prevent any discussion of the 
 question whether refusing the loan was a legal cause for commitment. 
 Whether the judges expected that a fight would be made on the bigger 
 issue, it is impossible to say. They may have thought that their state- 
 ment of the issue would stop the suit entirely, as it did that of one of 
 the prisoners, Darnel, who was so staggered by the return that he refused 
 to plead.^° But it did not daunt the others. For counsel they had some 
 of the best lawyers of the time, Selden, Noy, Bramston, and Calthrop. 
 These men made the issue very plain. They maintained that according 
 to the law any person committed by the King or Council without cause 
 shown should be bailed.^^ Attorney Heath was equally positive that the 
 law showed he should be kept in prison until the King was ready to bring 
 him to trial. The arguments presented on both sides were the same as 
 those which were later elaborated by the Commons and presented before 
 the Lords. There the discussion was as purely judicial as at the trial; it 
 was, in fact, but the case argued over again in Parliament. The reasons 
 for taking up the case in Parliament are to be found in the supposed and 
 real nature of the judges' award at the time of the trial. This award be- 
 comes then the key to the situation. Only by understanding that can one 
 understand why the subject of arbitrary imprisonment became the great 
 bone of contention in this Parliament. 
 
 There were three awards that could be made by the judges upon the 
 return to the writ of habeas corpus when the prisoner sued to be bailed. ^2' 
 If the prisoner was to be allowed bail the entry was committitur Mares- 
 callo, et postea traditur in Ballium. If he was ordered back to prison, there 
 to remain until brought to trial, the entry was remittitur quousque secum- 
 dum legem deliberatus fuerit, or, as it was more frequently entered, remit- 
 titur quousque, etc. These were both final judgments; but there was another 
 award which was not final. "If the judges doubt," to use the words of 
 Selden, "only whether in law they ought to take him [the prisoner] from 
 the prison whence he came, or give day to the keeper of the prison to 
 amend his return (as oft they do), then they remand him only during the 
 time of their debate, or until the keeper of the prison have amended his 
 return; and the entry upon that is remittitur only, or remittitur Prisonae 
 
 ^^ State Trials 3:4-5. 
 
 11 By standing for trial instead of delivery, the lawyers avoided the extreme position. Heath claimed 
 later, however, that in doing so they implied a contradiction, bail being a kind of imprisonment. The 
 answer to this is summed up by Grosvenor in very concise terms. "The judges want noe respect to the 
 Kinge: [they] will not deliver the party but byle him, that it may bee examined whether the King hath 
 more busines agaynst him or not" (G, 2:46). The lawyers, and later the Commons, were not fighting 
 so much for a principle as for a practical means of keeping men from confinement. 
 
 1" This explanation is taken from that of Selden, made before the Lords. L.J. 3:723. 
 
4 FRANCES HELEN RELF 
 
 praedictae, without any more. And so," adds Selden by way of explana- 
 tion, "remittitur generally is of far less moment in the award upon the 
 habeas corpus, than remittitur quousque, etc." 
 
 At the trial, Chief Justice Hyde made the award in these words: "We 
 cannot deliver you, but you must be remanded. "^^ At the time, this was 
 taken as a final judgment. "A man committed for some cause expressed, 
 though a great one, may be bailable," commented a letter- writer, "but if 
 the cause be unexpressed, he shall be unbailable. . . . The gentlemen 
 are remanded to prison and there like to lie by it."" Another letter- 
 writer interpreted the award as approving of all the late imprisonments 
 for the loan. "His Majesty had full right and authority to proceed as he 
 had done . . . and that all the remedy that the subjects had therein 
 was to have recourse to his majesty's clemency. "^^ This was, indeed, the 
 common notion.^^ It was this notion that made arbitrary imprisonment 
 the great grievance of the coming Parliament. "Arguments were made 
 and judgment given," said Selden. ^^ "I am ashamed of the judgment," 
 said Phelips.^^ To both these men the crying shame was that the issue 
 had not been treated with the seriousness that it deserved. "Although 
 Acts of Parliament were alleged," complained Selden, "no notice was 
 taken." Phelips protested that "this great liberty had not so serious a 
 treaty as is usually afforded to the meanest piece of ground or cottage."^^ 
 Both these comments show that these men considered that the award was 
 a final judgment. 
 
 The first explanation as to the real nature of the award came from 
 Solicitor Shelton. The judgment, he asserted, "was not to authorize their 
 imprisonment, but that the court would take further time to advise of 
 it. "20 He was upheld in this view by Hakewill who declared that "the 
 judges had given not a judgment, but an award, or rather a rule, about 
 the habeas corpus, and that the gentlemen might have sued out another 
 habeas corpus the next day."^^ By "a rule" he meant, as the judges explained 
 later, that whenever the return showed no special cause, but only the 
 command of the King, the case must be held for advisement. This was 
 established by _ precedent. ^^ But in making his explanation, Shelton in- 
 
 " State Trials 3:59. " to Mead. November 30. 1627. Court and Times 1:295. 
 
 '5 Beaulieu to Pickering, November 28, 1627. Ibid. 294. 
 
 " Solicitor Shelton complained in the House that "it hath been taken up in the London streets that 
 the king may commit one for not loaning money." M, 43 verso. 
 
 " B. 16. i« Ibid. 19 Ibid. J" H, 2313:14. See also B. 24 verso. 
 
 " H. 2313:26. See also M. 49. or (for the same account) State Trials 3:76. 
 
 22 Whitelocke. "I did never see nor know by any record that upon such a return as this, a man 
 was bayled, the King not first consulted." E. P.. 147-148. 
 
 Jones. "Persons committed by the King, or Council were never bayled, but his pleasure was 
 first known." Ibid. 148. 
 
 Hyde. "We do never bayl any committed by the King, or his Council, till his pleasure be first 
 known." Ibid. 150. 
 
THE PETITION OF RIGHT 5 
 
 troduced a new complication. "The judgment," he said, ''was remittitur 
 quousque etc." Selden and Coke took this up. "I heard heare a quous- 
 que," said Selden, "and thers nothing but a remittitur, the course of the 
 officer is to enter quousque etc. that is till they bee delivered by law, this 
 is the judgment that cann bee."^^ The effect of this was to raise the fear 
 that a final judgment had been made. And so when later a subcommittee 
 was appointed to search for records and precedents, they did not fail to 
 inspect the entry for the recent case. Selden reported, however, that they 
 "found only a remittitur, "^^ with a space left for the entry of the final 
 judgment. 25 This examination of the entry was conclusive proof as to the 
 nature of the first award. The question was never raised again. ^^ The 
 blame for the misconception was laid to "vulgar opinion, raised out of the 
 flame of the late judgment. "^^ 
 
 But though this investigation had quieted one fear, it raised an even 
 greater one. In the same report Selden told how, from another source, 
 he had found a draft of the entry for the final judgment. 
 
 Before this Shelton had, in the House, twitted Selden about the prec- 
 edents at the trial which were not "rightly put."^^ He glibly offered 
 precedents in support of the other side, boasting that he cotdd bring in 
 forty at least. ^^ Wandesford took it up and moved that the Solicitor pro- 
 duce his books if he could ;^'' hence Mr. Solicitor appeared at the meeting 
 of Selden's subcommittee for searching records and presented his notes. 
 With this introduction it is possible to give that part of Selden's report 
 
 •^ M, 47-4:7 verso. H, 2313:20 adds: "tha.t remittitur quousque is as well for treason, fellony etc." 
 For Selden see also above p. 3. "What means this quousque!" asked Sir Edward, "A curia advisari vuU! 
 no it is donee secundum legem el curiam delerminetur." B, 31. 
 
 The interpretation of quousque remained a subject of dispute. Later when the question was sub- 
 mitted to the judges they declared that remittitur, remittitur etc., and remittitur quousque etc., all tended 
 to the same end, that is to a curia adversari vult. L.J. 3:740. This is evidently the interpretation of two 
 of the reporters of this Session as seen in their version of Browne's speech on March 28. 
 
 "The judgment was remittitur quousque." H, 2313:19. 
 
 "None of the judges gave sentence definitely." B, 28. 
 
 That it was for advisement. M, 47. 
 
 2* M, 50 verso-Si. That is that the case was held for advisement. 
 
 28 Mead to Stuteville, April 12. Court and Times. 1:336. 
 
 26 The question may well be asked, why was not the real nature of the decision known sooner? There 
 is not sufficient evidence on which to base a really satisfactory answer, but some things we do know. It 
 was not an age of publicity. At every turn one is surprised at the lack of information on the part of even 
 members of Parliament. The whole debate leading up to the First Remonstrance presented to the King 
 in June, 1628 is a proof of this; an especially good example being the ignorance regarding the issue of the 
 commission for an excise. Even Selden, who was one of the lawyers for the defence, had not been able 
 to view the record for the judges' award until as chairman of the subcommittee for search he was given 
 power to do so by the House (B, 29). Though the Judges in April freely asserted that the prisoners might 
 have had another writ the next day, one can hardly conceive that (Doderidge to the contrary, E.P., 149) 
 they were anxious that they should have done so. In giving the award Hyde had said, "If you ask me 
 which way you should be delivered, we shall tell you, we must not counsel you." Darnel's fear is sufiScient 
 to show the audacity of the other men in continuing the trial. Is it to be wondered that they feared to 
 renew the fight? They looked forward rather to a Parliament where, protected by privilege, the subject 
 could be freely discussed. 
 
 2' Selden on April 9. L.J. 3:723. 23 3, 24 verso. " B, 31 verso. so b, 32. 
 
n 
 
 6 FRANCES HELEN RELF 
 
 which concerned the late case, in the words of the news-writer. "Hee 
 [Selden] remembred the house of Mr. Sollicitor's intimation that he had 
 40 cases to this effect makeing for the Kinge; hee sayes that Mr. SolHcitor 
 brought a Booke, but not any case more, to the Subcommitty with the 
 notes of students quight mistaken. But hee mutch commended the In- 
 genuity of Mr. SolHcitor that brought to the subcommitty the case of Sir 
 John Henningham^^ in a copy of a record of judgment, who beinge com- 
 mitted as you knowe per mandatum regis the words are, ideo praedictus 
 Johannes remittitur, not mentioning any other cause; hee shewed the copy 
 and it was ftill of blancks, the beginninge was confessed to bee written by 
 the Gierke, the latter ende by an other hande, and so foisted in, and cer- 
 tainly intended to have binne recorded and the blancks filled up."^^ 
 
 Selden read to the House not only the words quoted above but the 
 complete text of the judgment.^^ It followed the usual form of a judg- 
 ment made after the case had been held for advisement and deliberation;^* 
 and declared that, according to the records and precedents, the prisoner, 
 because he was detained by the special command of the King, should be 
 remanded "quousque etc." that is until he should be liberated according 
 to law. 
 
 As might have been expected, when Selden had finished his report the 
 impulsive Phelips was the first one on his feet. "I have heard many argu- 
 ments used to qualifie that judgment," said he, ''and that it was noe judg- 
 ment. I believed them because I remembred the merit of those judges 
 that gave it, but if this record be true, and the act of the Court, give me 
 leave to say it takes away all qualification, it determines the question 
 against us for ever and ever. I hope that it was the draught but of some 
 man that desired to strike us all from our liberties; I hope the judges justly 
 refused it. But if the judges did intend it, wee sitt not here to answer the 
 trust wee are sent for if wee present them not to his Majestie to bee pun- 
 ished." He moved that it be further investigated by the Committee, 
 which was so ordered. ^^ 
 
 Shelton was ready and willing to explain his part in the proceeding. 
 He said that he found the draft among his papers, and supposed that 
 it had come from Mr. Kelyng.^® So when, on comparing it with former 
 
 3' One of the five knights who was granted the writ of habeas corpus. 
 
 •2 B. 33 verso. 
 
 " M, 51. The Latin text found there has suffered from having been copied by ignorant clerks. For 
 a correct copy see L.J. 3:727. Translated it reads as follows: The aforesaid return having been seen as 
 well as the diverse ancient records on file in the court which concern similar cases, and mature deliberation 
 already having been held concerning the matter; for this reason, namely that no special cause of arrest 
 or detention for the aforesaid John is expressed but that in general terms he is detained in the said prison 
 by the special command of the lord King: therefore the said John is remanded to the said keeper of the said 
 marshall's prison to be kept safely until etc. 
 
 8< Selden. L.J. 3:727. ^5 m, 51. 
 
 '• Mr. Kelyng was the secretary of the Crown Office. L.J. 3:734. 
 
THE PETITION OF RIGHT 7 
 
 records, he found there was no precedent to warrant it, he naturally sent 
 to Mr. Kelyng to inquire about it. Mr. Kelyng was out of town; hence 
 he spoke to Attorney Heath about it, who said that he had sent it to him. 
 Shelton told Heath that it was not entered but that there was to be an- 
 other entry, and asked why it was not entered. The attorney's answer 
 was very evasive. "Hee told mee," said the Solicitor, "that hee observed 
 severall entries and hee said that hee gave direction to draw a forme of a 
 judgment, and thereuppon it was brought him but noe use was intended 
 to be made of it any further. "^^ 
 
 Sir Edward Coke was positive that the meeting of Parliament was all 
 that had prevented the entry of the judgment. He was confident that it 
 was the work of Mr. Attorney, for no clerk could have drawn it except 
 according to a precedent. ^^ gliot agreed with Coke that but for Parlia- 
 ment it would have been entered.'^ Selden went even further. He not 
 only believed that the order would have been recorded but for Parliament, 
 but "I do believe," said he, "that it will be recorded yet so soone as the 
 Parliament arises, if it be not prevented. """ 
 
 The next day Selden was ready to report further particulars about the 
 copy of the judgment. Mr. Kelyng had appeared before the subcommittee 
 where he told a very straightforward tale. He said that after the Michael- 
 mas term the Attorney wished him to make a special entry for the habeas 
 corpus case. He protested that it could only be entered in the ordinary 
 way. But after persuasion he consented that if Heath would draw a note 
 according to which he should make the draft, and if the judges would 
 all consent to it, then he would enter it. The attorney drew the note and 
 Kelyng took it to the judges; they, however, refused to allow any special 
 entry. "But the Attorney diverse times sent to him and told him there 
 was no remedie, but hee must drawe it.''^^ "And on the 5 of March hee 
 professed plainly it went against his conscience, yet still exceedingly pressed 
 in the ende a draught was made by one Register Harvey and sent to Mr. 
 Attumey."^2 He had not heard from it since. "And as touching the 
 entrie of the Rolls hee said hee wondered that there was no entrie, but 
 there is an entrie to be made and it useth to bee made before this time.'"'^ 
 
 The matter was referred back again to the subcommittee; but no fur- 
 ther mention was made of it until Selden brought it up at the conference 
 with the Lords on April 7. It was due, however, to the feeling aroused 
 by the discovery of Heath's draft, to the fear that this entry ^ might 
 still be made, that the Commons made their resolutions of April 1 as 
 
 3' M, 51 verso. See also B, 34, and H, 2313:40. 
 
 '8 M, 52; B, 34 verso. " '^^' ^'^■ 
 
 ^oB.ii, verso. *^U,SS verso. « B. 3S>mo. 
 
 « M, 56. For Kelyng's testimony see also H, 2313:41. 
 
8 FRANCES HELEN RELF 
 
 strong as they did. They declared then that no man ought to be com- 
 mitted without the cause being shown; if any were so committed, he should 
 be granted a habeas corpus; and if the return failed to show the special 
 cause, he shoiild be bailed or delivered.^ At the conference with the 
 Lords after reading the draft of the judgment Selden said: "If that 
 court, which is the highest for ordinary justice, cannot deliver him secundum 
 legem ; what law is there (I beseech you, my Lords) that can be sought for in 
 any inferior coiu"t for his delivery ? Therefore, what can the judgment with 
 quousque mean, but plainly a perpetual imprisonment awarded by the court: 
 Now, my Lords, because this draught, if it were entered into the roll (as 
 it was prepared for no other purpose), would be as great a declaration 
 contrary to the many Acts of Parliament already cited, and contrary to 
 all precedents ?f former times, and to all reason of law, to the utter sub- 
 version of the chiefest liberty and right belonging to every freeman of the 
 kingdom; and for that especially also it supposes that divers ancient rec- 
 ords have been looked into by the court in like cases; and that, by those 
 records, their judgments were directed; whereas, in truth, there is not one 
 record at all extant that, with any colour, . . . warrants the judgment; 
 therefore the House of Commons thought fit also that I should, with the 
 rest that hath been said, shew this draught also to your lordships. "^^ 
 
 On the same day that the arguments of the Commons given at the con- 
 ference were formally reported in the upper House, the Lords agreed to 
 hear the Kings' counsel.*^ Most of the 12th was taken up with Heath's 
 answer to the Commons. Though Heath was ordered to put what he 
 had said in writing,^^ it was not entered in the Journal. It was probably 
 similar to his arguments presented in the conferences of April 16 and 17; 
 one might infer that that was the reason it was omitted from the records 
 were it not for the fact that in the report of the conference made by the 
 Lord Keeper to the Lords that part concerning the draft of a final judg- 
 ment is slurred over with the few words that "it was to the same effect 
 that he had spoken to your Lordships in the House before. "^^ It is evi- 
 dent that the Lords desired no record to be kept of what Heath had said on 
 this point, conclusive proof that they did not endorse it. 
 
 On the 14th, the judges were called before the Lords to explain their 
 award. Of this the Lords allowed only a formal summary to be recorded.^* 
 What the judges said agreed with Kelyng's testimony; they had all re- 
 fused to allow the attorney's draft to be entered as the final judgment. 
 They seemed to have no intention of making any final judgment.^" The 
 
 " For the full text of the resolutions with the variant readings see Appendix A. 
 «5 L.J. 3:727. « Ibid., 732. " Ibid., 737. 
 
 •' Ibid., 752. Unfortunately none of the reporters for the Commons touched upon this subject. 
 *' E.P., 147. This is obvious from a comparison of the answer as given in the Ephemeris Parlia- 
 tnentaria, 147-154. *' As given by Nicholas, "there was no entry made or to be made." p. 83, 
 
THE PETITION OF RIGHT 9 
 
 prisoners had long before been delivered by command of the King and 
 the particular need for the decision was past. The prisoners could, the 
 judges had said, have had a new writ the next day and so have forced the 
 issue. "I wish they had," declared one judge, "because it may be they had 
 seen more, and we had been eased of a great labor. "^^ As to what they 
 would have seen we are left entirely in the dark. 
 
 This investigation cleared up more than one doubtful point. In the 
 first place it settled, beyond all question, the nature of the judges' 
 award at the time of the trial. Never again would the men of that time 
 consider it as a final judgment.^^ In the second place it proved that the 
 position taken by Heath was contrary to precedent. The words of the 
 draft expressed exactly what he had contended for at the trial as being 
 according to law. Yet he found it necessary to make a new form. "When 
 the Attorney upon ^ the remittitur pressed an entry," said one judge, "we 
 all straitly charged the Clark that he shotdd make no other entry then 
 such as our predecessors had usually made in like cases. "^^ Thirdly, it 
 showed that the judges had not adopted "Heath's view of the statutes 
 and precedents."^* It also makes certain what one long before suspected, 
 that the issue was not introduced solely to evade questioning the legality 
 of the loans; Heath had seen the advantage of having the issue of im- 
 prisonment settled in the King's favor. One may even believe that he 
 had forced the issue for his own ends, that otherwise he would not have 
 given it so much of his personal attention.^^ It was, undoubtedly, a great 
 relief to the Commons to find that the judges had resisted the pressure 
 put upon them by the attorney; yet there were some who felt that in 
 
 51 Doderidge, E.P , 149. 
 
 52 Unfortunately it did not clear it up for the historians who have written on this subject, not one of 
 whom has made a clear statement of the real nature of the award. This is more inexcusable in Gardiner 
 than in the others for he had access to all the evidence necessary in order to make such an explanation. 
 It convinces one of what was strongly suspected before, that he made but little use of the Lords' Journal. 
 The old Parliamentary History, on which most of the earlier historians had been forced to depend, omits 
 this part of Selden's argument. But with the Journal, the full True Relation (Harl. 4771), and Harl. 2313, 
 there seems no excuse for Gardiner's omitting entirely this investigation. He does give an extract from 
 Whitelocke's examination by the Lords (History of England 1603-1642, 6:216 n.) taken from Rushworth, 
 but his comment only proves his woeful ignorance on the point at issue. Of the award itself he says that 
 "the judges took a middle course" (6:216), which is perfectly true. But to him their middle course con- 
 sisted in refusing "to have any evidence on the records of the Court that they held that the Crown might 
 persistently refuse to show cause" (6:217), not that they refused to make any such judgment. In another 
 place Gardiner commits himself even further. He states that according to that decision "the judges 
 ought to await the king's announcement of the cause, however long it might suit him to withhold it" 
 (6:295). 
 
 M E.P.. 149. 
 
 64 Gardiner says that their judgment proved they had (6:216-217). Heath's draft is, indeed, in 
 exact accord with the accepted view of the judgment. If any further proof is needed that that view is 
 wrong, it is surely to be found in the judges' rejection of this proposed entry. 
 
 S5 In reporting the conference of April 16-17 to the Commons, Sir Edward Coke said, "I told the 
 Lords there were symtoms in every sicknes, and that the Attorney to bother to care the busines was a 
 good signe." G, 2:47. 
 
10 FRANCES HELEN RELF 
 
 evading the subject they had shirked their duty.^^ The feeling on both sides 
 was that after such a thorough discussion the question must be settled one 
 way or the other ;^'' and since the judges had failed, the settlement must 
 be made by Parliament. 
 
 " "The judges have not disclaimed it, that they could not be bailed," said Coke. H, 2313:133. 
 " "I wish with all my heart," Heath had said at the conference, "that ... a fitting bill might be 
 preferred to compose and to settle well and equally this great question." L. J. 3:756. 
 
CHAPTER II 
 STATUTES, PRECEDENTS, AND RECORDS 
 
 It is not difficiilt to surmise why the judges drew back from making a 
 final decision, for no authority bearing directly on the issue before them 
 could be found in statute, precedent, or record. As to what the issue was, 
 no one was left in doubt. Sir Edward Coke had indeed attempted to 
 prove that any commitment by the special command of the King was 
 against the law,^ but the fact that such arguments were made so little of, 
 shows how aside they were from the real question. The direct issue was 
 whether, when a man was committed by command of the King or Coun- 
 cil without any cause being shown, the judges should bail or remand him. 
 The Commons maintained that he should be bailed, the King's counsel 
 that he should be remanded. 
 
 The written law on which the Commons ultimately based all their 
 claims was the familiar clause of Magna Carta, Nullus liber homo . . . 
 imprisonetur . . . nisi per . . . legem terrae. From this clause they 
 drew two arguments; the one based on a general interpretation, the other 
 on a particular. The general interpretation was that no free man shotild 
 suffer the punishment of imprisonment without having first been con- 
 demned by due process of law. On this interpretation there was no dif- 
 ference of opinion. The task that the Commons' lawyers had before them 
 was to prove that this interpretation had direct application to the case 
 at issue. "If the law be that upon this return the gentleman should be 
 remanded," argued Bramston at the trial, ''then this imprisonment shall 
 not continue on for a time, but for ever; . . . and by law there can be 
 no remedy for the subject: and therefore this return cannot stand with 
 the laws of the realm or that of Magna Charta. . . . And if they sue out 
 a writ of Habeas Corpus, it is but making a new warrant, and they shall 
 be remanded and shall never have the advantage of the laws."^ It is the 
 same plea that is made in the Petition itself. "Against the tenor of the said 
 statutes . . . divers of your subjects . . . were returned back to sev- 
 eral prisons without being charged with anything to which they might 
 make answere according to the law." Under such a commitment the 
 prisoner had no legal means of bringing his case to trial; unless released 
 on bail, he must stay in prison during the King's pleasure, which was 
 
 ' "The Kinge in his presence can not cause any man to bee arrested, but an action lyes against him 
 that arrests him. 1 Hen. 7 . . . Ed: the 4th. was told hee could not committ tor if you doo it falsly, 
 the party greived hath no remedy." B, 17. 
 
 Cresswell brought up the same precedent. "And Hussey, Chief Justice in 1. Hen. VII, fol. 4 saith, 
 That Sir John Markham told King Edward IV he could not arrest a man ..." O.P.H. 7:382. 
 
 estate Trials 3:8. 
 
 11 
 
12 FRANCES HELEN RELF 
 
 clearly against the clause in Magna Carta. It is evident that some at least 
 of the judges were impressed with this argument for Jones demanded of 
 Attorney Heath that he explain how the prisoners could ever be delivered, 
 if not by that court, and Doderidge asserted that, unless delivered by that 
 court, there was nothing ahead of them but perpetual imprisonment.^ To 
 the general interpretation of the clause Heath agreed. "If a man shall 
 be imprisoned without due process, and never be brought to answer, that 
 is unjust and forbidden."* But because that was a possible consequence 
 of commitment without cause shown it did not make the commitment 
 itself against the law. He illustrated by showing that any discretionary 
 power lodged in the King could be used by him to the detriment of the 
 subjects, yet they would not for that reason argue that all power be taken 
 from him. The question reduced itself ultimately to a trust in the King 
 without which, according to Heath, there could be no monarchy. Since 
 the general interpretation would not avail, the Commons were forced back 
 on their second interpretation, the technical meaning of legem terrae. 
 
 This, as well as the first argument, had been used at the trial. It was 
 not heard as often in the lower House where the lawyers' efforts had been 
 devoted, as Littleton explained, "to the end that no scruple might remain 
 in any man's breast unsatisfied."^ But in the conference with the Lords 
 it was fiilly elaborated. The first step in the argument was to prove that 
 in the time of Edward III, "law of the land" was interpreted by "due 
 process of law." For this they cited 28 E. Ill, c. 3, which is given in the 
 Petition, showing by comparison with 5 E. Ill, c. 9 and 25 E. Ill, c. 4 that 
 the phrases were used interchangeably. The second step was to prove 
 that "process of law" covered the indictment as well as the trial. Little- 
 ton quoted again from 25 E. Ill, c. 4 "that from henceforth none shall be 
 taken . . , unless it be by indictment, or presentment ... or by proc- 
 ess made by Writ Original,"^ and from 42 E. Ill, c. 3 "that no man be put 
 to answer without presentment . . . or by due process and Writ Orig- 
 inal."^ Heath was quick to point out where this narrow reasoning was 
 leading them. "Will they have it understood that no man should be com- 
 mitted, but first he shall be indicted or presented? I think that no 
 learned man will offer that; for certainly there is no justice of the peace 
 in a county, nor constable within a town, but he doth otherwise."^ Prac- 
 tice proved, he insisted later, that these laws did not refer to the "first 
 commitment or putting into safe custody" but to "a legal proceeding to 
 judgment or condemnation."^ Heath was in this simply carrying the 
 Commons' argiunent to the extreme in order to show its absurdity. The 
 purpose of Littleton had been only to maintain that all commitments must 
 
 * Ibid., 31-32. * Ibid.. 39. 
 
 » L.J. 3:718. ' Ibid.. 719. » Ibid., 720. 
 
 ' State Trials 3:38. Heath had deliberately substituted arrest for indictment. » L.J. 3:754. 
 
THE PETITION OF RIGHT 13 
 
 follow the regular order of the courts where, in every case, the written 
 indictment showed the cause. *° That commitment by special command 
 was not included within this regular procedure they brought statutes to 
 prove. In 36 E. Ill, Rot. Pari. no. 9, the King promised not to make any 
 arrest contrary to the Great Charter "by special command." In no. 20 
 of the same roll the ICing is asked to deliver those "taken by special com- 
 mand against the form of the charters." But a careful reading of these 
 petitions convinces one that Heath had right on his side when he said that 
 they "were made for redress of inconveniences happening to the subject 
 by the suggestion or information of parties." ^^ Littleton insinuated that 
 the same was still true. "Kings seldom do those things merely of them- 
 selves, but as things proceed from some man's suggestion. "^^ All of which 
 might be perfectly true, but it did not make those particular laws applicable 
 to commitment by the King or Council. None of the laws quoted bore 
 directly on the point at issue. The Commons admitted as much when 
 later on they were asked whether they would be content with a bare con- 
 firmation of the laws. Speaking of their first resolution Sir Edward Coke 
 said: "The Acts of Parliament include this question in substance but it 
 is only implied. "^^ And Littleton who had claimed so much for the statutes 
 in his arguments before the Lords, and who was appealed to as the 
 authority on statute law, then admitted that no layman could possibly 
 draw out their resolutions from those statutes.^* 
 
 Attorney Heath failed just as completely as Littleton had failed, when 
 he attempted to prove that Westminster the First, c. 15, and not the 
 statutes of Edward III, was the real interpretation of the particular clause 
 in Magna Carta. That statute restricted the right of the sheriffs to bail. 
 In doing so it enumerated the four cases which under the common law 
 were not replevisable ; "those that were taken for the death of a man, or 
 by the commandment of the King, or of his justices, or for the forest. "^^ 
 At the trial Heath admitted that this law "was especially for direction to 
 the sheriffs and others; but to say courts of justice are excluded from this 
 statute I conceive it cannot be."^^ Later he stated his position more fully. 
 The statute states, he explained, what was the common law before the 
 time of Magna Carta. Magna Carta does not alter it. Then he went 
 on, "this statute . . . doth not recite that these four sorts were not 
 
 ■I Sir Mathew Hale (2:130) shows clearly the way in which in the seventeenth century a man might 
 be taken by command of the King. "It must be done by some order, writ, or precept, or process of some 
 of his courts." The argument of the Commons was this: If the King's writ could not imprison the 
 subject unless it contained the cause, why should the King's warrant? (See Cresswell, O.P.H. 7:383; 
 and Whistler, M, 45 verso). If the warrant showed the cause the two would be essentially the same. 
 
 1' L.J. 746. That is, this form of commitment was being used for the benefit of private persons 
 who should have proceeded according to the regular order of the courts. 
 
 " Ibid. 747. " M, 138. " N, 141-142; H, 5324:23; G, 3:60-61. 
 
 w L.J., 3:720. " Slate Trials 3:41. 
 
14 FRANCES HELEN RELF 
 
 replevisable by the sheriffs but generally that they were not replevisable 
 at all."^^ His contention was that at the time of this statute it was recog- 
 nized that according to the common law these. four cases were not bail- 
 able^^ by the judges. ^^ The Commons came back at Heath with the same 
 kind of argument he had used against their interpretation of the statutes 
 of Edward HI. They showed that such an explanation was contrary to 
 practice. Right along men who had committed murder were bailed by 
 the King's bench. "Good Lord!" ejaculated old Sir Edward Coke, "it 
 is done every day.''^" 
 
 Even though the Commons were so positive in their assertion that this 
 statute was not to the question, for it could not tie the judges, they were 
 somewhat worried that so eminent an authority as Stamford was against 
 them. At the trial Heath had supported his opinion by that of the learn- 
 ed judge of Queen Mary's time. He quoted from his book. Pleas of the 
 Crown, fol. 72: "by this [Statute of Westminster First ] it appears, that in 
 four cases at the common law a man is not replevisable. "^^ It was 
 some time before any one qviestioned Heath's interpretation of Stamford. 
 It was not, indeed. Heath's interpretation at all, but the accepted explana- 
 tion of that time; the Commons freely admitted that Stamford was against 
 them." Shelton forced Sir Edward Coke to a confession that it was only 
 recently that the old judge had even admitted that Stamford was wrong. 
 He cited a decision made by Coke and the judges associated with him in 
 
 II L.J. 3:754. 
 
 1' It is not necessary here to discuss the difference between replevy and bail, for it does not aSect 
 the question involved. 
 
 " Professor Jenks has unnecessarily confused the issue for the modern student. In his article The 
 Story of the Habeas Corpus he states that the right to bail rested with the judges as justices of the peace 
 not as justices of the King's bench, when their business was not to bail but to try. Then he goes on to 
 show how this power was expressly limited by statute, how in the time of Richard III and Mary the pro- 
 visions of Westminster First were reenacted with order for their strict observance by the justices of the 
 peace. Heath's silence on this point is alone enough to prove it a mistaken view. One can not doubt that 
 he not only knew the whole law on this subject but that he was stretching it as far as possible. Bailing 
 by the justices of the peace (who replaced the sheriffs) and bailing by the judges were two distinct acts. 
 At the time of commitment the justice could either put the party in prison to await trial or leave him at 
 large on bail. But the man who was imprisoned by the justice had still the opportunity to bring his case 
 before the judges by applying for the proper writ, of which the habeas corpus was one. Upon the return 
 of this writ stating the cause of the commitment the judges were to decide whether the prisoner should be 
 delivered, bailed, or remanded. It was in the nature of an appeal to a higher court on the validity of the im- 
 prisonment. This view is confirmed by Sir Mathew Hale who writing in the seventeenth century shows 
 how clearly distinct were the two processes. "If he be bailed by a justice of peace before commitment, or 
 if committed and brought into the court of King's bench or sessions to be bailed" (2:126). The King's 
 bench, he explained later, had an original power to bail. That is it was not conferred upon it by statute, 
 and it was not limited unless such limitation was explicitly stated by law. Sir James Fitzjames Stephen 
 makes this very clear when he says: "The power of the superior courts to bail in all cases whatever, 
 even high-treason, has no history. I do not know, indeed, that it has ever been disputed or modified. 
 It exists in the present day precisely as it has always existed from the earliest times. The only matters 
 connected with it which need to be noticed here are some provisions of the Habeas Corpus Act of 1679" 
 (1:243). The power was disputed by Heath in 1628, but not at all as Professor Jenks disputes it in his article. 
 
 2» L.J. 3:729. For the same thought expressed by Littleton see /did., 721; by Selden, Slate Trials 3:80. 
 
 testate Trials 3:43. 
 
 "See Cresswell on March 22 (B, 23 verso); Selden on the 27th (State Trials 3:80); and Sir Edward; 
 
THE PETITION OF RIGHT 15 
 
 13 James, that it was fit the cause should not be shown that being the 
 custom of all antiquity. "And Sir Ed. Coke sayd," went on Mr. Solici- 
 tor, "that if the privy Councell committed any, hee is not baillable by 
 any court of England" and so the prisoners were returned. In that time 
 "in what esteeme was Stamford! But now tempora, mores.""^^ There 
 is no doubt that Coke was very much disconcerted, as his immediate reply 
 showed, but at their next meeting he was able to make a fitting answer. 
 "I spake against the lones and this imprisonment," said he, "and I looked 
 for a bang for my pains. What if wee remand or remitt a man. What 
 is that to acts of Parliament. ... I confess I was for Stamford and cited 
 him, But when I saw some of this house puld out and sent to the Tower, 
 I sett my self e to my studdy, and found I had followed a blinde guide, 
 And now the witt of man can not deceive mee as I have shewde you here- 
 tofore in what I have sayd and cited. "^* He believed that they should 
 overrule Stamford's opinion. But that Stamford's opinion was against 
 them he did not question. 
 
 It was not until April first, when the whole subject was being drawn 
 to a conclusion in the House, that any other interpretation of Stamford 
 was advanced. That day Rolle brought into the House a copy of the 
 Pleas of the Crown?^ "It was said," he began, "that Stamford's opinion 
 is agreeable to the late judgment. I will cleere him allso, for hee sayes 
 no sutch matter. "2^ Then he read from the book, "and as to the com- 
 mand of the justices, that is meant their absolute commandment: for if 
 it be their ordinary commandment, he is replevishable by the sheriff, if 
 it be not in some of the causes prohibited by the statute. "^^ Littleton 
 explained later that if replevisable here was limited to the sheriff, then it 
 was throughout the whole passage, and so Stamford had said nothing at 
 all as to whether the parties were bailable by the judges.^^ Equally with 
 the Commons, Heath had failed to prove his point by statute. ^^ 
 
 Coke on the 29th. "If the King had such a prerogative and no authority but one judge only in Queen 
 Marys time, shall that overrule us?" (B, 31). 
 
 Believing as they did that, according to Stamford, in these four cases no one was bailable by either 
 justice or judge, the Commons attempted to explain what was meant by "command of the King." Bram- 
 ston maintained that it meant when men were taken by the King's writs and not by word of mouth (State 
 Trials 3:8). But Mr. Solicitor pointed out in the House, as can easily be seen from reading Stamford, that 
 by command of the King is understood "by the King's person or his Counsell his representative person" 
 (H, 2313:14). He supported Stamford in this by reference to Fitzherbert and Dyer who were of the 
 same opinion as to the meaning of "command of the king." 
 
 23B, 31 t)erio-32. ^* B, 3i verso. 
 
 26 B, 36 verso. It comes as a surprise to the modern student to find that these eminent lawyers had 
 depended so upon the traditional interpretation, that they had not gone immediately to the book itself. 
 We must remember, however, that even printed books were not easily accessible. A further example of the 
 same kind of thing is to be seen in the interpretation of the judges' resolution in 34 Eliz. See below pp. 16-17. 
 
 26 Ibid. M, 57. " L.J. 3:721. 28 jbjd. 
 
 2' In this connection it is interesting to note Heath's statement of a year later. "It is true that this 
 opinion is grounded upon West. 1, c. 15, but I will not insist upon it. But the constant opinion has always 
 been, that a man committed by the command of the king is not bailable." Stale Trials 3:282. 
 
16 FRANCES HELEN RELF 
 
 Nor were either the Commons or Heath to have any better success- 
 with precedents. They were freely quoted at the trial, in the House, and 
 at the conferences. The trouble with each and all of them was that the 
 decision was not based on the straight issue but on the conditions sur- 
 rounding the particular case. The lawyers quoted cases where, though, 
 according to the legal procedure, the special command was the only cause 
 shown, yet the real causes were known to the judges and determined their 
 decision. For this reason Chief Justice Hyde threw out the precedents 
 quoted at the trial. He showed that either the cause was known or else 
 there were letters from the King or Council by virtue of which the parties 
 were bailed. Selden claimed that ''those letters were not considerable."^" 
 And when a particular case was cited during the time that Coke was judge 
 and letters came to bail, he explained, "I bay led him not by letters but by 
 lawe. Those great mens letters were no letters of justice to mee, I meane 
 hinderers of justice. "^^ Nor were the precedents cited on the other side 
 any more convincing. Hyde summed up the whole matter of precedents 
 when he said, ''our predecessors have done as we have done, sometimes 
 bailing, sometimes remitting, sometimes discharging. "^^ The most that 
 could be claimed from the precedents was that persons committed by the 
 King "were never bailed, but his pleasure was first known." Under this 
 the judges could hold the case for advisement. All this but admitted that 
 in each case the particular circumstances were known and were made the 
 issue; that never before were the judges required to make the decision 
 that they were called upon to make in the Five Knights' Case. "It re- 
 mains to take away the mist of precedents in printe," said one lawyer; 
 "many committed by commission, but none sine causa; this commitment 
 is a novelist. "^^ There was no precedent which bore directly on the point 
 at issue. 
 
 All that remained on which to base a decision was the record of the 
 judges' opinions in the past. Of these the most important, the only one 
 indeed of any weight, was that of the judges in 34 Eliz. It was first 
 brought up by Heath at the trial to prove that the prisoners should not 
 be bailed. Heath admitted that he had not the record with him, that 
 he quoted from memory; but that his authority was "the book of the 
 lord Anderson, written with his own hand."^* It is necessary to give his 
 account in full in order to note how he garbled it. "The judges were 
 desired to shew 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. "^^ In the confer- 
 
 ™ H, 2313:14. "considerable" here means lo he considered. 'i B, 31. 
 
 32 E. P. 150. 33 Saunders, B, 30. ^^ Stale Trials ZAA. '^ i6t(f., 43-44. 
 
THE PETITION OF RIGHT 17 
 
 ■ence before the Lords, Selden read the resolution from Anderson's report,^^ 
 in order that they might all perceive that it was not concerned with the 
 question of bailing as the attorney had alleged.^^ 
 
 "And where it pleased your Lordships to will divers of us to set down 
 in what cases a prisoner sent to custody by Her Majesty, Her Council, 
 or some one or two of them, are to be detained in prison, and not delivered 
 by Her Majesty's Courts or Judges, we think that if any person be com- 
 mitted by Her Majesty's commandment from her person, or by order from 
 the Council Board, or if any one or two of her Council commit one for 
 high treason, such persons, so in the case before committed, may not be 
 delivered by any of the courts without due trial by the law, and judge- 
 ment of acquittal had."^® 
 
 The attorney had changed the word delivered to hailed. Here again, 
 as in the case of Stamford, he was probably giving the popular interpre- 
 tation of the time.^^ But Heath's version of the resolution had had no 
 effect upon the award as given by Chief Justice Hyde. He had gone 
 b)ack to the resolution itself, comparing the different copies made at the 
 time. "It is," he said, "to this purpose, that if a man be committed by 
 the commandment of the king, he is not to be delivered by a Habeas Cor- 
 pus in this court, for we know not the cause of the commitment." Then 
 he went on to declare the award, showing by his phrasing that he based 
 it more on this resolution than all the rest put together, "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."^" In the light of this award, as revealed by 
 the investigation in Parliament, it is an easy matter to interpret the reso- 
 lution. That investigation had proved that the judges gave no final 
 
 "5 The story of how the Commons came into possession of a copy of Anderson's report bears teUing. 
 The validity of Heath's account had been questioned in the House (see Selden H, 2313:14; Whistler B, 27 
 verso; Shervile B, 29 verso); and search had been made for a copy of the report. (It must be remembered 
 that at this time the report was only in manuscript.) But on the 30th of March, when Selden made his 
 full report from the committee for searching records, he was obliged to admit that "the judges opinion 
 of the 34th of Q. Eliz. he thought to have had in a booke of Judge Andersons but could not find it" (B, 33 
 verso). Later in the same day Eliot stated that he had Judge Anderson's book in his possession (M, 52). 
 "The book was left," he explained, "by that judge to his sonne, who kept it as a jewell in his chest: and 
 upon the occasion of the late lone, hee sent for the booke to London and made it visible to our eyes, and 
 though he held it as a jewell, yett for this publique use, hee was readye to send for it." M, 56. 
 
 '' "It hath been cited, and was cited, in that great judgment given upon the Habeas Corpus in the 
 King's Bench, as if it had been that upon such commitments the judges might not bail the prisoners; yet 
 it is most plain that, in the resolution itself, no such thing is contained." L.J. 3:728. 
 
 33 1 Anderson, 298. 
 
 '5 See Sir Edward Coke's interpretation which was quoted against him (below p. 21). Coke had ad- 
 mitted in the House that he had Anderson only as reported by a student. 
 
 ^ State Trials 3:59. Compare this with the concluding part of the Resolution which reads as 
 follows: "Nevertheless the judges may award the Queen's Writs to bring the bodies of such prisoners 
 before them, and if, upon return thereof, the causes of their commitment be certified to the judges as it 
 ought to be, then the judges in the cases before, ought not to deliver him, but to remand the prisoner to 
 the place from whence he came." 1 Anderson, 298. 
 
18 FRANCES HELEN RELF 
 
 judgment but instead held the case for advisement. All writers on this 
 subject have agreed that the award and resolution are in perfect accord. 
 34 Eliz. must mean then that the case be held for advisement.^^ If any 
 further proof were needed, it is to be found in the wording of the resolu- 
 tion which is as follows: "to remand the prisoner to the place from whence 
 he came."*^ What is that but the Latin form remittitur prisonae prae- 
 dictaef 
 
 When one considers the circumstances which gave rise to the Resolu- 
 tion of 1592, this interpretation seems the natural one. Men were being 
 imprisoned by the Privy Counsellors without the particular cause being 
 given. By the writ of habeas corpus they were being brought into court 
 and discharged as fast as they were imprisoned.^ The judges were, there- 
 fore, asked whether the prisoners should be delivered without being brought 
 to trial; and the answer was that they should not be delivered without 
 "due trial by law, and judgement of acquittal had." Then descending to 
 the particular case they told how the person could be brought to trial 
 when committed by command of the King and no particular cause stated. 
 When the prisoner was brought into Court by the writ of habeas corpus, 
 he should not be delivered, for then he would not be brought to trial, he 
 should not even be bailed, but held in prison while the judges found out 
 from those who had committed him what the particidar cause might be. 
 
 But what if the King did not wish to explain the particular cause to 
 the judges? This was the issue presented in 1628. Coiild the Resolu- 
 tion of 34 Eliz. help to solve that issue? Not at all; like statutes and 
 precedents it must be thrown out as having no bearing on the subject.'** 
 
 " There is a striking parallel between the answer of the judges in 1592 and the answer of the judges 
 in 1628 when, before giving his first answer to the Petition, the King put certain questions to them. The 
 second question was as follows: "whether in case a habeas corpus be brought, and a warrant from the 
 King without any general or special cause returned, the judges ought to deliver him before they understood 
 the cause from the King?" Their answer was: "Upon a habeas corpus brought for one committed by the 
 King, if the cause be not specially or generally returned, so as the Court may take knowledge thereof, the 
 party ought by the general rule of the law to be delivered. But if the case be such that the same requireth 
 secrecy and may not presently be disclosed, the Court in discretion may forbear to deliver the prisoner 
 for a convenient time, to the end the Court may be advertised of the truth thereof" (Gardiner 6:295. Quoted 
 from Hargrave MSS 27, fol. 97). In this answer the meaning of presently should be noted. In the 
 seventeenth century it was a synonym for present time, now (for examples see G, 105, 106; B, 193). Even 
 Gardiner admits here "that the length of the remand was not to depend upon the King's pleasure" {Ibid). 
 This makes it very plain that the only object of delay was in order that the judges might find out the special 
 cause. It can not be repeated too often, that before 1627 there had been no thought of deciding any case 
 except by consideration of the special cause. 
 
 Heath practically admitted this in the following year when, in again interpreting these resolutions 
 he said: "Upon the whole matter the bailment of these prisoners is left to your discretion." State Trials 3:286. 
 
 « See note 40. 
 
 ^^ Selden quoted that part of Anderson's report as well as the resolution itself. "Her Majesty's 
 writs have sundry times been directed to divers persons having the custody of such persons unlawfully 
 imprisoned; upon which writs no good or lawful cause of imprisonment hath been returned or certified; 
 whereupon, according to the laws, they have been discharged of their imprisonment." L.J. 3:728. See 
 also Whistler, B, 27 verso. 
 
 ** The reason that modern writers have failed to interpret this resolution as Hyde interpreted it 
 is that they have not understood his award in the Five Knights' case. Like the people of that time they 
 
THE PETITION OF RIGHT 19 
 
 The past could furnish no solution for the problem. This excused the 
 judges for not having made a decision, but it did not lessen the demand 
 for a settlement of the question now that it had been raised. In spite of 
 the fact that they found no support in statvite, precedent, or resolution, 
 the Commons were yet confident that they were in the right, for they had 
 still the fundamental law as a basis for argument. Back of all written 
 law was the unwritten law, and this they claimed made for the liberty of 
 the subject. But the King's party was no less confident; they based their 
 claim on the newer belief of divine right. These two beliefs were bound 
 at some time to clash; the clash came in 1628. It was the latter belief 
 which made the abuse; it was the former which made the people declare 
 it to be an abuse of power. More than that the subjects for the first time 
 had in the writ of habeas corpus, which was then rapidly becoming a writ 
 of right, an efficient tool with which to combat the encroachment upon 
 their liberty. It is this conjunction of abuse and remedy which must next 
 be considered. 
 
 have been blinded by the popular opinion regarding 34 Eliz. and have thought in both cases that the 
 prisoners were remanded until they should be brought to trial. Hallam says of this resolution that it 
 prevented "the judges from discharging the party from custody either absolutely or upon bail" (1:379). 
 Dubious as Gardiner was as to Anderson's meaning in other respects, he had no doubt but what he meant 
 "that bail ought to be refused to persons so committed, till the time for trial came on" (6:245 n). Professor 
 Crawford says that "it afforded no relief when the commitment was made in consequence of a warrant 
 £rom the crown or the Privy Council." And then he goes on to show that it was the direct precedent 
 for Hyde's award. Am Law Rev. 42:488. 
 
CHAPTER III 
 THE CONJUNCTION OF ABUSE AND REMEDY 
 
 Statute, precedent, and resolution all alike proved that the direct issue 
 of arbitrary imprisonment had never before been faced. This is not to 
 say that never before had the King committed any one to prison with- 
 out showing cause, or even that such commitments had been always for 
 matters of state which required secrecy; but only that there was no rec- 
 ord in support of, or in protest against, such arbitrary power. The rea- 
 sons the protest came in 1627 are two: the great abuse of the prerogative 
 aroused a strong feeling of opposition in the lawyers, and the writ of habeas 
 corpus gave them a legal means of combatting the abuse. The desire to 
 curb the King's prerogative was the direct result of imprisonment for re- 
 fusal to contribute to the loan. No better illustration of this could be 
 desired than is to be found in Sir Edward Coke's change of attitude be- 
 tween 1621 and 1628. 
 
 It was to be expected that, in searching for opinions by the judges, 
 the King's counsel would not neglect any that had been made by Sir Ed- 
 ward Coke. It has already been noted how he had had to explain one of 
 his decisions,^ and also how the Solicitor had caught him on the interpre- 
 tation of Stamford. It was then that he made his memorable confession 
 explaining how he came to change sides.^ His change was due entirely to 
 the fact that the power of commitment had been abused. Had it been 
 reserved by the King and Council for only such cases as concerned matters 
 of state, when there was real need of secrecy, the power would not have 
 been questioned. But when matter of state was pretended when there was 
 none, when there was danger that this kind of commitment would become 
 a regular means for carrying on an arbitrary government, it was to be 
 expected that many thoughtful men would change their views. His 
 earlier views are seen most clearly in a debate in the Parliament of 1621, 
 a debate to which Attorney Heath called attention in order again to show 
 that Sir Edward had not always taken the side that he did in 1628. A , 
 bill had been introduced "for the better securing of the subjects from wrong- 
 ful imprisonment, and deprivation of trades and occupations, contrary to 
 the 29th chapter of Magna Charta."^ The abuse against which the bill 
 was directed was that powerful monopolies, by authority granted them in 
 their charters, were imprisoning men in order to prevent them from carry- 
 ing on their trades. The bill was thrown out because, as framed, it covered 
 
 1 See above, p. 1 6. 
 
 *See above, p. 15. s C.J. 1:596. 
 
 20 
 
THE PETITION OF RIGHT 21 
 
 commitment by the King and Council. The man who more than any 
 other was responsible for the loss of the bill was Sir Edward. The rea- 
 sons Heath quoted him as giving at that time were that "there are divers 
 matters of state, which are not to be comprehended in the warrant, for 
 they may be disclosed; one committed by the body of the Council not 
 bailable by law, resolved so by all the judges in Wraye's time (that, my 
 lords, is the resolution of 34 Eliz. when Wray was Chief Justice) ."" Heath's 
 object in bringing up this debate was probably more to confuse the old 
 judge than for any weight that it wotdd have. Its interest to us is that 
 it shows that prior to 1627 the issue had never presented itself in just the 
 way it did then. 
 
 It was such men as Coke who changed their views at this time, not 
 men like Heath. Indeed, the argument used by Sir Edward in 1621 
 is the same as used later by Heath; namely, that for reasons of state it was 
 often necessary that the cause be kept secret. At the trial, Heath had 
 given examples in support of this reason. In case of a plot when the 
 principals were still at large, it was necessary that the cause be concealed 
 for which the subordinates were committed.^ This argument was followed 
 up in the House by the King's supporters. Nethersole insisted that for 
 cases of conspiracy there must be such a power ;^ and May,'' supported by 
 Whitehead,* dwelt on the great disorder that would have been caused if, 
 in some cases of which he knew, the cause had been revealed. These 
 arguments had had weight in 1621; but in 1628 the Commons refused to 
 see any such necessity. Noy called attention to the fact that there was 
 no reason why the judges shoiild not be informed for, by their oath, they 
 were not permitted to reveal the secrets of the King.^ And Sir Edward 
 conceded that if the cause of commitment was of higher nature, as "sus- 
 picion of treason, misprison of treason, or felony," the cause need be stated 
 only in general.^" This would create no inconvenience for, as he asked, 
 "who is there that suspects it not, does not all Cheapside knowe it as one 
 is carried to the TowerP''^^ "The laws of England," said another, "pro- 
 vide sufficiently for the safety of the Kings person.''^^ Not only was there 
 no necessity but, as Selden pointed out, "reason of state" was not rec- 
 ognized by the law.^^ To this argument Ashley made answer, but an 
 answer that was repudiated by the Lords; he claimed there was a law 
 
 < L.J. 3:756. Heath quoted this from his own notes, but it follows very closely the report as giveo 
 in the Commons' Journal (1:609). and in Nicholas for 1621, 2:26, 109. It is evident from this that Heath 
 kept a diary during that Session. It ought to be found if it is still in existence. Possibly it is his MS to 
 which reference is made in the Commons' Journal (1:526) as being in the Inner Temple Library. 
 
 » Stale Trials 3:45. « M, 46. 
 
 ' B, 34 verso; M, 52. ^ M. 56 verso. » L.J. 3:762. 
 
 ^0 Ibid., 3:130. " B, 30 per so. 12 Brown. H, 2313:19. 
 
 >' "In the matter of a law, those points of state are not considerable" (H, 2313:13). "State mee 
 thinks should not alter nor crosse lawe." B, 24. 
 
22 FRANCES HELEN RELF 
 
 of state for cases not covered by the common law.^* Heath maintained 
 that the common law recognized a discretionary power in the King, that the 
 Commons' propositions took away this power, and were, therefore, incom- 
 patible with a monarchical form of government. The Commons denied 
 that they took any power from the King; they would not decrease but 
 regulate it. "Whatever the King's power was by the common law," 
 explained Sir Edward, "yet was it qualified by acts of parliament, and 
 no man will deny but the King may limit himself by acts of parliament. "^^ 
 At another time he said, "the King hath distributed his judicial power 
 to Courts of Justice. "^^ Hakewill had a vivid way of putting it: "the 
 sword is carried before him but the scepter is in his hand."^^ He insisted 
 that the common law recognized no power in the King to punish. 
 
 From this debate on the King's prerogative, it is very evident that the 
 Commons based their arguments chiefly on the common law, the unwritten, 
 fundamental law of the land.^^ They used it not alone for refuting an 
 absolute power in the King, but as specific proof against arbitrary im- 
 prisonment. Gathering together all the arguments presented by the 
 different men at different times, it is possible to reduce them to four. 
 Three of these were against imprisonment as a punishment when there 
 had been no trial. They correspond to the use made of the general in- 
 terpretation of the clause in Magna Carta and can be briefly summarized. 
 
 In their first argument the lawyers approached the subject from the 
 negative side. They tried to prove that there was no such power in the 
 King because the law did not recognize it. If the power is already in the 
 King, they asked, why do we have statutes allowing such punishment for 
 offences ?^^ Carrying the argument a step further, they pointed out that 
 two penalties are recognized by the law as punishment for crime, impris- 
 onment and fine. But the King could not arbitrarily fine a man; it 
 must be done judicially .2" Why think then that he could arbitrarily im- 
 prison him ? Another proof presented to show that the law did not rec- 
 
 "L.J. 3:758. 
 
 16 Ibid., 761. 16 M, 50. " M, 49. 
 
 1' See L.J. 3:717-718 for Digges's eulogy on the common law. In his book on The High Court of Par- 
 liament, Professor Mcllwain devotes considerable space to an explanation of the part that the idea of funda- 
 mental law played in the legislation of this period. "Men may not always have been clear as to what par- 
 ticular rights or liberties were guaranteed by the fundamental law, but as to the existence of such a law 
 there was no doubt." "Fundamental law," he states in another place, "played its greatest part in the 
 great contest between the Parliament and the Stuarts, which was in its last analysis a struggle of the 
 common law against the king." pp. 63, 75. 
 
 Dicey has the same thought in mind when he says: "The security which an Englishman enjoys 
 for personal freedom does not really depend upon or originate in any genera 1 proposition contained in any 
 written document. . . . Individual rights are the basis, not the result, of the law of the constitution." 
 The Law of the Constitution , 202, 203. 
 
 "Selden: "To what end were this in an act of parliament, if imprisonment were at the king's 
 will?" State Trials 3:79. 
 
 20 As authority for this statement Sir Ed. Coke gave Bracton, 2, fol. 105, and the resolution of all the 
 iudges in 3 R, 2 (L.J. 3:730). 
 
THE PETITION OF RIGHT 25 
 
 ognize this right in the King was the absence of any statutes regulating 
 the power. Wherever the law allowed imprisonment, that imprisonment 
 was limited both as to persons and as to time. There were no statutes 
 limiting this power in the King; therefore if he had the power at all it was 
 a power which could be applied to all his subjects for all time. "To ex- 
 tend an imprisonment without reason," said Coke, "is against reason. "^^ 
 To Sir Edward the lack of regulation was conclusive proof that the power 
 was not recognized by the law. 
 
 The second argument against arbitrary imprisonment was that accord- 
 ing to the common law it made the subjects less than freemen. Imprison- 
 ment was a civil death. According to the common law it could be in- 
 flicted upon the freeman only by due process of law for having violated 
 the peace, that is for having used force. No freeman, so the lawyers claimed, 
 could be imprisoned for any other offence unless it was explicitly provided 
 for by statute.22 Moreover, in every case the imprisonment must be for 
 some cause in the person confined, not in the will of him who commits.^* 
 Not alone would those committed by this arbitrary power suffer from loss 
 of their status as freemen; it would lower the condition of every subject. 
 Arbitrary imprisonment made every man a "tenant at will for his liberty. "2* 
 He was no longer free but a bondman, for he had lost "the sole distinc- 
 tion of a freeman." This was a note that Selden continually harped upon. 
 "Whoever can say I can imprison him, I will say he is my villein. "^^ Coke 
 pointed out that such a person was worse than a bondman. He cited 
 "two book cases" to show that a villein could not be imprisoned by his 
 lord without cause shown. ^^ This was a line of reasoning well calculated 
 to stir the heart of the average Englishman. 
 
 An argument which appealed to a sentiment no less strong was a com- 
 parison of the rights granted to the subject by the common law for pro- 
 tection of his person and for protection of his property. No idea was more 
 firmly fixed in the minds of men at that time than the right of the individ- 
 ual to property; it was much stronger than it is to-day. It controlled the 
 theory of taxation. "It is," said Digges, "an undoubted and fundamental 
 point of this so ancient a law of England, that the subjects have a true 
 property in their goods, lands, and possessions: the law preserves as sacred 
 this meum and tuum, which is the nurse of industry, and mother of courage; 
 for, if no property, no care of defense. Without this meum and tuum 
 
 a L.J. 3:730. 
 
 22 See Cresswell's speech, O.P.H. 7:379; and Shervile, M, 48. 
 
 " Pym. "The motive of the punishment must be in the party offending." B, 118. 
 
 ML.J. 3:729. 
 
 '^ State Trials 3:79. See also Ibid., 18. Digges moved that the records be viewed to see "whether 
 this power of the Kinge trenches upon us as Servants or subjects." B, 17 verso. 
 
 «" L.J. 3:729. The cases cited were "7 E, 3. fol . 50 in the new. 348 in old print," and "33 E, 3. Tet. 
 Tresh. 253, in faux Imprisonment, Fitz." 
 
24 FRANCES HELEN RELF 
 
 there can be neither law nor justice in a kingdom; for this is the proper 
 object of both."^'' But great as was the respect for property, great as was 
 the protection given it by the law; yet greater, so ran the argument, was the 
 protection given to the person. The lawyers gave incident after incident 
 to show that a man was allowed rights for the protection of his body which 
 he was forbidden to use for the safe-keeping of his possessions. 
 
 But all of this proof was against arbitrary imprisonment in general. 
 What was needed was proof against imprisonment before trial. The 
 proof of this, Selden explained, lay in the remedies that were provided against 
 false imprisonment.^^ These remedies were the three writs for the en- 
 largement of a freeman falsely imprisoned — Odio et Atia, H amine replegi- 
 ando, and Habeas Corpus. The first two were directed to the sheriff, and 
 consequently were of no avail when the party had been imprisoned by the 
 command of the King.^^ The writ of habeas corpus was the King's order 
 to the keeper of the prison to bring the prisoner into the Court together 
 with the cause of his commitment or detention, whichever it might be. 
 Upon this return the Court judged the efficiency of the cause.^° This 
 argument shows how closely bound together were the subjects of arbitrary 
 imprisonment and the writ of habeas corpus. Granted, as the older his- 
 torians would have us believe, that the writ was at this time one of right, 
 not of grace, and the case for the Commons is greatly strengthened. But 
 if it was only in the process of becoming so the situation is changed. The 
 second of the Commons' resolutions of April 1 is sufficient proof that 
 it was not yet a writ of right. ^^ Heath denied that it was even the proper 
 mode of procedure. He claimed at the trial that the prisoners should have 
 petitioned the King for release.^^ At the conference with the Lords, Sel- 
 den answered Heath, "Neither is there in the law any such thing, nor 
 ever was there mention of any such thing in the laws of this land, as a peti- 
 tion of right to be used in such cases for the liberty of the person. "^^ Yet 
 of all those who were committed for refusing the loan, we know of none, 
 except the five, who asked for the writ of habeas corpus.^* We know, 
 moreover, that Eliot proceeded by petition to the King for his liberty 
 
 "L.J. 718. 
 
 ^ Slate Trials 3:78. One needs to make no apology for quoting Seldea so freely on the interpretation 
 of the common law. He was the great authority for the Commons on that subject, as was Littleton on 
 statute law. 
 
 " See above the Statute of Westminster p. 13. 
 
 "> For the writ in full see State Trials 3:11. 
 
 *' "Now, my Lords," said Selden, "if any man be so imprisoned, by any such command or otherwise, 
 in any prison wheresoever through England, and desire, either by himself, or by any other in his behalf, 
 this writ of habeas corpus (for the purpose) in the court of King's Bench, the writ is to be granted him, 
 and ought not to be denied him, no otherwise than any ordinary original writ in the Chancery, or other 
 common process of law, may be denied; which, among other things, the House of Commons hath resolved 
 also upon mature deliberation." L.J. 3:722. For the resolution see Appendix A. 
 
 >2 State Trials 3:50. «= L.J. 3:722. 3« State Trials 3:2, editor's note. 
 
THE PETITION OF RIGHT 25 
 
 and the benefit of the law.^^ According to Forster he took this course 
 after having been consulted by those who went the other way.^^ 
 
 In this question of the proper procedure for obtaining release from 
 arbitrary imprisonment was contained the whole issue at stake between 
 the Commons and the King, the protest of the people against personal, 
 or council, government. The commission for the loan came from the 
 Council; those who refused to pay were examined by the Council; those 
 committed were committed by order of the Council; it was but in keeping 
 that for release they petition the Council. The protest of the Commons 
 was that the Council was taking upon itself the functions not only of Par- 
 liament but of the courts as well.^^ The effect of the writ of habeas cor- 
 pus was to bring the case into the regtdar court. It is obvious then why 
 the great common law lawyer should declare against petition and for the 
 writ. It makes clear also the significance of the development of that 
 writ. But until it had a firmer status than in 1628, it could hardly be 
 used as absolute proof against the legality of arbitrary imprisonment. 
 
 From this discussion it is possible to see why, to the Commons, the 
 production of Anderson's report had been an occasion for great rejoicing, 
 why the general opinion was that "it made for the liberty of the subject 
 in direct terms. "^^ What appealed to them was the obvious intent of 
 the judges that the parties should be brought to trial.^^ Though not in 
 as positive terms as might have been desired, it yet endorsed the judges' 
 action in granting the writ of habeas corpus in all cases.^° As has been 
 pointed out, this was the only writ by which the subject could bring his 
 case into court when committed by the special command of the King.'*^ 
 The judges' resolution was a mile stone in the development of that writ. 
 It definitely established it "as a substantive remedy, which exists as of 
 right for all prisoners. "^^ The purpose of the writ was to test the validity 
 of an imprisonment. It made it possible for the lawyers in 1627 to test 
 the validity of arbitrary imprisonment. The comparatively late develop- 
 
 S5 Forster, Life of Elint 1:410-414. sc ibid., 408. 
 
 " For this protest see the First Remonstrance and the debates leading up to it. This is the significance 
 of the fourth proposition offered by the Lords as their judgment on the "late habeas corpus" case. "In all 
 cases within the cognizance of the common law, and concerning the liberty of his subjects, his Majesty 
 will proceed according to the common law of the land, and according to the laws established in the kingdom, 
 and m no other manner or use." L.J. 3:769. 
 
 33 B, 36. 
 
 " Selden was reported as having said at one of the conferences that the assurance of trial meant 
 that the cause must be shown, for there could be no trial otherwise. L.J. 3:762. 
 
 "Mr. Selden: the resolution 34 Eliz. speaks only of those who were committed with a cause, for thei 
 say thei could not be delivered but by triall of law; there must then be a cause expressed, to be subject 
 to the triall." H, 2313:18a. This is the 18th page counting from the back of the book forward. The 
 conference of these two days was recorded in that way. 
 
 *" In the light of the present interpretation it is possible to understand all that that meant to the 
 Commons. 
 
 41 L.J. 3:722. "Jenks, 74. 
 
26 FRANCES HELEN RELF 
 
 ment of this writ explains to a great extent why the validity of such 
 commitment had not been tested before. The other side of the question 
 is, of course, that only the great abuse of the pov/er would make the 
 need felt. In 1627 these two, remedy and abuse, came together. 
 
 Then followed the struggle which resulted in the Petition of Right. 
 
CHAPTER IV 
 BY BILL 
 
 This long explanation of the arguments, pro and con, which were pre- 
 sented at the trial and elaborated in Parliament, has been necessary in 
 order to explain why the Commons were impelled to furnish a solution for 
 the problem of arbitrary imprisonment. The explanation has been fruit- 
 less unless it has proved that the impelling force came from the conjunc- 
 tion of abuse and remedy, unless it has proved that the basis in the past 
 for the position taken by the Commons was only of a general nature and 
 in direct opposition to the rapidly developing conception of kingship held 
 by the Stuarts. • ll^i#^l=f*^lpk''--i^ ! ^^^ 
 
 The effort of the Commons to settle the question of arbitrary imprison- 
 ment resulted in the Petition of Right. It is only one of the four subjects 
 therein contained, but it is the one which throughout was the great 
 stumbHng block, the subject of debate and conference. In debate and 
 conference are to be found the explanation for the Petition of Right — the 
 reason for the change from bill to petition, and all that that change implied. 
 
 The first step towards the framing of a bill had been the resolutions of 
 the Commons^ which they passed on April 1, 1628 and immediately 
 sent up to the Lords for their consideration. The second step was the 
 Lords' resolutions which they sent down to the Commons. These came 
 on April 25, after the Lords had had time to weigh the arguments that 
 had been presented before them at the conferences. The Lords had in a 
 sense occupied the position of judges, and their resolutions are in the na- 
 ture of a decision based on the arguments, rather than an answer to the 
 resolutions of the Commons. Yet they disclaimed that they were a deci- 
 sion in the sense of being final; they would have them considered merely 
 as a starting point for future conference.^ The resolutions were in five 
 parts. The first declared that Magna Carta and the six statutes were in 
 force; the second that according to statute, custom, and law every freeman 
 had a ''fundamental propriety in his goods" and liberty of his person; 
 the third guaranteed to the subject all the liberties, privileges, and rights 
 enjoyed by their ancestors; the fourth promised that all cases falling with- 
 in the cognizance of the common law, and concerning the liberty of the 
 subjects, should proceed according to that law. These four were general 
 and vague where those of the Commons had been direct and explicit; 
 but the fifth was of quite a different character. It declared in no mis- 
 takable terms that the King's prerogative was "intrinsical to his sovereignty 
 
 1 For these resolutions see Appendix A. ^ Lord Say and Seal, B, 102. 
 
 27 
 
28 FRANCES HELEN RELF 
 
 and entrusted him from God," and then, coming to particulars, it declared 
 that when, for reasons of state it was necessary to imprison without show- 
 ing cause, the King would "within a convenient time . . . express a cause 
 . . . either general or special."^ 
 
 The attitude of the Commons toward the first four of the Lords' reso- 
 lutions was that they were meaningless, that to pass them was to accom- 
 plish nothing. Sir Edward Coke held them up to ridicule, phrase by phrase. 
 "Our resolutions," he summed up, "are plain and open and clear, what 
 theirs are we are to dispute."^ "Our own are all cleere points of law," 
 said Selden, "the answeare is not what is law, but what they would have 
 to be law."^ Yet to keep a good feeling with the Lords some were will- 
 ing to accept them; there was no harm in reaffirming Magna Carta. But 
 on the fifth the opposition was positive; to accept that was to decline their 
 own propositions. "Reason of State," said Coke, "lames Magna Carta. "^ 
 
 They all realized, however, that criticism would get them nowhere. 
 Few were ready with a plan of action. Sir Edward Coke, in his blunt way, 
 was opposed to all compromise. If the Lords would not yield to them, 
 then let them go directly to the King.'^ But the spirit of the House was 
 conciliatory. It was Wentworth who presented the plan that was to be 
 followed. He proposed that, ignoring the fifth proposition entirely, but 
 using the others as much as possible, they go by bill, explaining lex terrae 
 and attaching a penalty for the violation of the law. Two days had been 
 taken up with this debate, Friday and Saturday. On Monday, April 28, 
 before the debate could be resumed the Commons were called up to the 
 Lords' House to hear a message from the King. The substance of the 
 message was that every day the need for supply increased, that debate 
 on the liberty of the subject was the cause of delay; therefore, in order 
 to put a stop to the delay the King would declare his intention. It was 
 eqiuvglei3^-4©-4he.fo;st_.iQttF--^^ that he would con- 
 
 firm Magna Carta and the six statutes, maintain the subjects in their 
 just liberties, and govern according to the laws. For this he asked them 
 to rely upon his promise.^ After their return to their own House, Secre- 
 tary Coke enlarged upon the King's message. He argued that they would 
 get as much by the promise as by law for "whatsoever law we shall make 
 it must come to his Majesty's allowance." He pointed out the advantage 
 of the promise over a law. "His promise is bound with his own heart, "^ 
 
 3 L.J. 3:769. 
 
 * M, 126 verso, "Ours are playne and do conclude something, these do not." B, 109 vefso. 
 6B. 110. 
 
 ' B, 109 verso. Who shall judge of "convenient time" questioned Selden. "At this little gap 
 every man's liberties in time may go out." M, 128 verso. 
 
 'B. 110. 8 O.P.H. 8:77-78. *lbid.,ZU 
 
THE PETITION OF RIGHT 29 
 
 but against a law the King could use his dispensing and pardoning power, ^^ 
 "all law with the wrath of a King is nothing. "^^ 
 
 From both the Lords and the King had come offers to compromise; 
 nor were there lacking those in the House who would urge the same thing. 
 Rudyard would have had them take stock of what they had already won. 
 The King's counsel, the judges, the Lords, and the King had all declared 
 that the laws were in force; they were assured, then, of the reenacting of 
 Magna Carta. He doubted not but by free conference with the Lords 
 they would gain liberty of persons and goods; he hoped that they might 
 have a law against forced loans and privy seals; but it was more important 
 that they keep Parliament than that they should gain all they desired 
 in this Session.^- But in spite of the King's message or the appeals of 
 Secretary Coke and Rudyard, the Commons went on with their bill. After 
 some debate it was resolved that a select committee be appointed "to 
 draw a bill, wherein shall be contained the substance of Magna Charta 
 and those other statutes that conceme the liberty of the subject in his 
 person and estate, together with the resolutions of this house concerning 
 those things."^* Seemingly neither the efforts of the Lords nor of the King 
 had been able to weaken the determination of at least a majority of the 
 Commons. On the afternoon of the 28, the committee met and framed 
 a bilP* which was presented by Sir Edward Coke the next morning. The 
 bill was framed to cover imprisonment, taxation, and billeting. For a 
 preamble it recited the statutes which the Commons considered had been 
 violated. Those against imprisonment are the same as had been present- 
 ed by Littleton with the addition of 25 E. 1, c. 2, that all judgments con- 
 trary to Magna Carta are null and void.^'^ The resolutions were to follow 
 the statutes, but only the first and third are given in the bill.^^ At the end 
 of the bill was to be placed the penalty for its violation; this, however, 
 as Coke explained, was not yet resolved upon." 
 
 In transforming their resolutions into a bill many practical considera- 
 tions arose which had not before been considered. The resolutions had 
 stated principles, things that "ought to be." The bill, as proposed by 
 Wentworth, was to be one by which these principles could be enforced. 
 It was here that the split arose among those in the House who a month 
 before had been united in support of the resolutions. On one side were 
 the opportunists led by Wentworth who would abandon whatever could 
 not be enforced; on the other side were the reformers led by Sir Edward 
 Coke who would hold to their resolutions regardless of any immediate, 
 practical end. These terms, opportunist and reformer, were never used at 
 
 10 G, 2:136. " B, 114 verso. 
 
 12 O.P.H., 8:81-84; G, 2:137-139. " h, 2313:128. " M. 135. 
 
 >=H, 2313:130; B, 117; G, 2:150; M, U6 verso. 
 
 '« For the bill, as found in M, 137. see Appendix B. i' G, 2:150. 
 
30 FRANCES HELEN RELF 
 
 the time to designate the followers of Wentworth and Coke, but they so 
 aptly characterize the two groups that it has been found convenient to 
 refer to them in this way. The Five Knights' Case was an effort to test 
 the writ of habeas corpus, an effort to make it more definite, even to in- 
 crease its effectiveness, by judicial decision. To many the struggle that 
 had been carried on in Parliament up to this time had only this end in 
 view. To these a habeas corpus law was the natural outcome of the 
 struggle. They argued that if those who were committed at Whitehall 
 could be quickly and surely released at Westminster the commitments 
 would inevitably cease. But there were some who were more farsighted. 
 Their position it is that is made clear in this three days' debate. Their 
 reasons for holding fast to the first resolution which had become the great 
 stumbling block are no longer left in doubt. Rich started the ball rolling 
 by raising the question whether the cause should be shown at the time of 
 commitment, or not until the return of the habeas corpus.^* The debate 
 that followed shows that the members were not even agreed as to the 
 end for ^ which they were fighting. Fleetwood was as positive that the 
 end of their law was to deliver out of prison^^ as were Shervile-" and 
 Stroude^^ that it was to prevent imprisonment. 
 
 Behind this was more than just a misunderstanding; it was a difference 
 of opinion as to the way to overcome the abuses. If a good habeas corpus 
 law would prevent arbitrary imprisonment, why miss the chance of gain- 
 ing that by fighting for a principle which was so bitterly opposed by the 
 King and Lords? Why contend, in other words, for their first resolution 
 if all they needed were the second and third? The debate clearly proved 
 that the subject would gain no practical advantage from having the cause 
 shown to the jailor at the time of commitment. Cory ton had, indeed, claimed 
 that it would give time for the prisoner's counsel to prepare his argu- 
 ment and so have it ready upon a habeas corpus i^^ but Noy answered that 
 the jailor was not bound to communicate the cause.^^ Rolle thought that 
 he would gain his release sooner. If committed at the beginning of the 
 long vacation he would have a long wait for his habeas corpus, but if the 
 cause was expressed upon the commitment and it was not just he could 
 bring action against the jailor for false imprisonment. Then, warming 
 up to his subject, he showed that this was "a better remedy than a habeas 
 corpus for it gives costs and damages, so granting this we undoe all the 
 rest,"2* Hobby answered that this would not help him to his liberty an 
 hour sooner for he could have his habeas corpus out of Chancery during 
 vacation time.^^ And Whistler pointed out that the jailor is only re- 
 sponsible as to whether he who commits has power to do so, and it must 
 
 "G, 2:154. i»G, 2:156. »« 140 M, f«rso. 
 
 «iH, 5324:8. 22 G, 2:155. » M, 139 ferso. 
 
 "H, 2313:131. See also M, 137 verso; N, 110; G, 2:157. 2= H. 2313:131; G, 2:158. 
 
THE PETITION OF RIGHT 31 
 
 be conceded that the Council have the power .^^ After this discussion Pym's 
 question seems perfectly justifiable: "If the Gaylor can neyther say or 
 knowe any thinge, why should wee streive for that that is unnecessary P"^^ 
 
 But though showing cause at the time of commitment would not re- 
 lease the party it might still have a practical advantage. Grimston,^^ 
 Eliot,23 and Coke^" spoke not only of their own actual experience but of 
 that of many others when they showed that after their commitment their 
 rooms were searched and out of evidence then found, a cause was trumped 
 up. Digges answered that the search could have been made as well before 
 as after their commitment.^' Eliot spoke also of secondary causes being 
 given. For example, the men who were imprisoned in the Fleet for deny- 
 ing the loans, after being called before the Council Board were sent back 
 to prison and it was "cast out it is for contempts and ill carriage."^^ Tq 
 this Wentworth answered that if they made such a law it would be evaded 
 by giving false causes.^^ 
 
 The most serious objection, the one that clearly divided the oppor- 
 tunists from the reformers, lay in the fact that there was no way of en- 
 forcing the first resolution. "There wants a penalty," said Seymour.^* 
 "This bill without penalty will be to take a shadow and leave the sub- 
 tance."^^ The offenders were the privy counsellors. Any penalty the 
 Commons could attach the King could pardon. Why run the risk of 
 breaking Parliament in order to pass an act that could not be enforced ?^^ 
 This was why the opportunists proposed alternative measures that would 
 catch the men lower down. Seymour's proposal was against the deputy 
 lieutenants and justices of the peace who for fear of losing their places 
 carried out the commands of the Council." But the most popular plan 
 was to depend upon a habeas corpus law and hold the judges responsible. 
 This was advocated by Noy,^^ Pym,^^ and Wentworth.*" 
 
 26 G, 2:164. 2'B, 118. "^^ Ibid.; G, 2:\S1. 2' M, 137 verso. 
 
 so M, 138. 31 N. 112; G. 2:160; H, 2313:132. 32 G, 2:159. 33 G, 180. 
 
 8* M, 141. 35 H, 5324:8. 36 Noy. M, 139 ve.rso-\m. «' H. 5324:8; M, 141. 
 
 38 Noy brought it up first, having proposed it on the 26 (M, l29>verso-\29), and repeated his proposal 
 again on the 30 (M, 139 verso). Gardiner magnifies Wentworth's part too much (6:266), apparently 
 making him alone responsible for the modified bill as he formulated it on May 1. 
 
 39 B, 118; G, 2:155. »» G, 2:179; M, 141 verso-\A2\ N, 121-122. 
 
 Gardiner discusses at some length the plan of Wentworth for a habeas corpus act. His interpretation 
 of the plan is that the act would leave to the judges "the ultimate decision of the legality of the committal" 
 (6:267). The debate in the House does not bear out this conclusion. It was not the intention of the 
 framers of this plan to leave the decision to the judges, but to determine the question of legality by the 
 act itself. The weakness of their position lay in the fact that their proposed act did not determine it. 
 This was clearly pointed out by Mason in a long speech in which he showed the results which would accrue 
 from a habeas corpus law based on the second and third resolutions. Without the first the third admitted 
 the right to commit without cause. The second obliged the court to release such a party, but there was 
 nothing to prevent his being arrested again on the same kind of warrant (O.P.H. 8:89-94). The failure 
 of this proposal for a habeas corpus law to gain support in the House was due to this very fact that it did 
 not determine the real point at issue. Because he missed this point Gardmer failed to understand the 
 real cause for the split between the two parties in the lower House. 
 
32 FRANCES HELEN RELF 
 
 Not that the opportunists denied the principle in the first resolution. 
 "Noe King, no counsell, no judge, by Gods law or mans can lay imprison- 
 ment ... at his pleasure," said Pym. The motive of the punishment 
 must be "in the party himself. "^^ Noy was as positive that according to the 
 law "the cause ought to be expressed. "^^ Wentworth agreed "the resolu- 
 tions are according to lawe."^^ Banks, who was as great an opportunist as 
 any was even more explicit. "The cause ought to be expressed uppon the 
 commitment as well as uppon the retume . . . This question is the 
 hinges of this busines and will tume the whole. I would have it declared 
 that to commit anie without expressinge the cause is against the lawe."^* 
 Noy, too, would declare but not enact it.^^ 
 
 Nothing shows more clearly the motives which prompted the reformers 
 than their answers to the opportunists. Shervile gave two reasons when, 
 on May 1, he answered the objections. "Some object what good shall 
 wee gett if it bee enacted onely, onely that the lawe is thus," that is know- 
 ing that it will not be kept. "I answer it is comfort to mee in my imprison- 
 ment that it is against the lawe." When these men went to prison it was 
 not the physical discomfort or the loss of freedom that they minded most, 
 but the reproach and disgrace. Shervile spoke of it as "a miserable calamity 
 and prejudice, a civil death, brings terrors, affrightness, forsakings of 
 friends. "^^ "A man suffers in his reputation," said Eliot.^^ And Sir 
 Edward voiced the same thought when he said, "this comamitment is 
 fearfull, all mens mouths are open against the partie."^^ They surely 
 needed the comfort of knowing that in submitting to such ignominy they 
 were upholding the law. But this was a small and selfish reason as com- 
 pared with their other. Shervile showed that, since the question had been 
 raised, to abandon it was in reality to declare against it. "It will be 
 urged against us, if any be so committed, that indeed it was agitated 
 in the house, but that it stuck with the Lords and wee could not gett it 
 passe. . . . [We] may say wee hope no man shall more be so committed 
 but can give no assurance of it and that ourselves shall have waved our 
 common right, and not have maintained what wee have declared to be 
 law."^^ Mason was even more explicit. "Altho' the King or Council, as 
 it hath been objected, by might may commit us without cause, notwith- 
 standing any laws we can make ; yet I am sure, without such an Act of Par- 
 liament, such commitment can have no legal colour; and I would be loth 
 we should make a law to endanger ourselves."^" By "such an Act" he 
 refers to the habeas corpus act based on their second and third resolutions. 
 Such an act, he maintained, by implying that the cause need not be shown 
 until the return of the writ of habeas corpus, would be "a general or per- 
 
 " G. 2:155. « M, 139 verso. " M, 141 verso. " M, 137 verso. 
 
 « M, 139 verso. « m. 140 verso and H, 5324:6 combined. «' H, 2313:132. 
 
 "M. 138. "H, 5324:7. "O.P.H. 8:94. 
 
THE PETITION OF RIGHT 33 
 
 petual dispensation" of Magna Carta.^^ They must stick to their first 
 resolution or abandon all. 
 
 The opportunists were going around in a circle. Let it "be enacted," 
 said Wentworth, that we shall be bailed "if habeas corpus be brought and 
 no siifficient cause."^^ But who was to define "no sufficient cause"? Either 
 it must be done by law or left to the judges. The judges had been given 
 the opportimity to decide in the "late habeas corpus case"; but, as Sir 
 Edward Coke pointed out, they "have not disclaimed it, that they could 
 not be bailed who were so committed, only explained themselves that they 
 gave no such judgment. "^^ But Sir Edward was told that they would 
 not dare to do that after Magna Carta and the explanatory statutes had 
 been confirmed. This was touching a weak spot, for all along it had been 
 asserted that the resolutions contained nothing new. This was the basis on 
 which Wilde, Digges, Hakewill, Banks, and Wentworth argued that it was 
 not necessary to insert their resolutions in the bill at all, that the reenact- 
 ing of the old laws was all that was necessary. Pushed into a comer Coke 
 and Eliot admitted that the recital of the old law was not sufficient. "I 
 conceive nothing is new," said Eliot, "all that wee seeke is but the explana- 
 tion of the lawe, but the old put in fuller sense. "^^ Sir Edward admitted 
 even more. Speaking of their first resolution he said, "the Acts of Parlia- 
 ment include theis questions in substance but it is only implied. "^^ They 
 must have an explanation of it enacted in the body of the bill "else Mr. At- 
 torney will come with a relief and wipe all out with a distinction."^^ Until 
 there was a law stating in no equivocal terms that commitment by the King 
 without cause shown was against the law, until there was such a law how 
 cotdd they be at all sure that the judges would bail? The reformers 
 rightly maintained that it was they that held to the substance and the 
 others to the shadow. 
 
 In this three days' debate the position of the reformers is clearly defined. 
 The cause of the break between Wentworth and Sir Edward is made evi- 
 dent. Wentworth had stood for a law by which the offenders could be 
 punished. Though on the surface this seemed the practical thing, it was 
 proved to be quite the reverse, for no law they could make woiild touch 
 the real offenders. The really practical thing was a declaratory law. 
 This in its nature was like a judicial decision; not a law to be put into 
 operation against individuals, but a law which the judges must recognize 
 in m.aking decisions." In this kind of a law the explicit explanation was 
 
 "/6/c(., 90. 62 N, 121-122. '3 H, 2313:133. " M, 139. « m. 138. 66 Q, 2:163. 
 
 6' Gardiner missed entirely the point of difference between Wentworth and Coke. To him one was 
 the moderate man the other the extreme (6:268-271). From this it followed that he looked upon the change 
 of policy in the same light. "The Commons, if they were to carry their point at all, must set their teeth 
 hard and declare war to the end against their sovereign" {Ibid). "After Wentworth's failure it was not 
 likely that the House would again ask for anything short of the extreme measure of its claims" {Ibid., 272). 
 With this idea firmly fixed in his mind, it would be hopeless to expect Gardiner to have any realization 
 of the real nature of the Petition of Right. 
 
34 FRANCES HELEN RELF 
 
 the important thing. That explanation was contained in their first reso- 
 lution, and to that resolution the reformers were determined to hold fast. 
 This marks the first step in the change from the bill of April 29, to the 
 Petition df Right. The change was due entirely to debate within the 
 House. The next change was to come from pressure brought to bear by 
 the King. 
 
 On the next few days, messages from the King followed each other in 
 quick succession. The effect was to convince the Commons, more than 
 ever, that an explanation was essential. So essential did they consider it 
 that they willingly abandoned going by bill from which all explanation 
 would have been excluded, and went by a more uncertain way. The 
 King interrupted the debate on May 1 by a message demanding to know 
 whether they would abide by his promise or not.^^ When Rich asked if 
 this meant they should not proceed by bill,^^ Secretary Coke answered, 
 if it be by a bill that contains noe enlargement of our ancient right . . . 
 it will pass."^" The next day there was another message from the King re- 
 newing his promise but asserting that he would not have the laws enlarged 
 "by newe explanacions, interpretacions, exposicions, or addicions in any 
 sorte, which hee telleth us hee will not give way unto or endure. "^^ In 
 answer to this message the Commons sent a conciliatory remonstrance to 
 the King, the thought and wording of which came from Wentworth.^^ 
 This proves that by this time even the opportunists were convinced of the 
 necessity of explanation. They maintained in the remonstrance that they 
 had not "the least thought of straining or enlarging the former laws;" 
 that they only wished to make necessary explanation and provision for 
 execution.^* The King's answer came back the same day, that any ex- 
 planation would "hazard an Incroachment."^'* 
 
 These messages of the King positively prohibited any bill which should 
 be more than a bare confirmation. This was the reason that the bill was 
 abandoned. Of what use was a bare confirmation? Sir Roger North put 
 the situation in a very vivid way. "They will aske us when wee come 
 home," he said, "what reliefe wee have brought them, wee tell them wee 
 have confirmed the old statutes, they aske us when they were repealed. "^^ 
 The only question in regard to the laws was the question of their interpre- 
 tation; lex terrae must be explained. ^^ The remonstrance proves that even 
 the opportunists were convinced of that. But to clear up any misgivings 
 that might remain the lawyers were called upon to explain whether any 
 
 «»0.P.H. 8:94-95. ^H, 5324:11. '<> Ibtd. " B. 129. See also O.P.H. 8:98-99. 
 
 " He "delivered it up to the Chair having penned it and enlarged it as he sat." B, 127 verso. 
 
 «8 O.P.H. 8:102. ^ Ibid. es b, 140 terso. 
 
 " North. "A confirmation of Magna Carta and the six other statutes will not give our country 
 satisfaction, for the riddle of lex terre is not yet unfolded." N, 142. 
 
 In summing up the arguments at the conference before the Lords, Heath had said: "How this 
 ex terrae is to be expounded, is the main apple of contention." L.J. 3:763. 
 
THE PETITION OF RIGHT 35 
 
 possible good coiild come from a bare confirmation." The lawyer who 
 answered was Littleton, the recognized authority on statute law. He de- 
 clared that not only would they gain nothing but they would lose much. 
 To agree to a general confirmation was, in the eyes of the public, tacitly 
 to recede from their resolutions.^^ More than that he declared that "a 
 gentleman in the country that knowes not our Resolutions wiU never be 
 able to extract out of these lawes those points wee have here resolved. "^^ 
 Under no circumstances would he accept a bare confirmation. '^^ This was 
 the general feeling. Rather than give up the explanation the Commons 
 abandoned going by bill, and sought for some other means of getting their 
 explanation on record. This they found in a petition of right. 
 
 " N, 141; G, 3:60; H. 5324:23; B, 140. 
 
 88 "It will weaken the oppinion of us abroade. Will not the world thinke wee tacitly desert our 
 former grounds?" B, 140. 
 
 6« N, 141-142. '0 For this speech see also G. 3:60-61; H, 5324:23; M, 150 verso. 
 
CHAPTER V 
 BY PETITION 
 
 When, on May 6, the Commons had found themselves forced to 
 relinquish their bill for a declaratory law, the idea of abiding by the King's 
 promise began to receive more favor. The objections to the King's offer, 
 as contained in his message, had been two; as worded it was too general 
 and vague to be any help against the specific grievances of the time, and 
 secondly in the form of a message to the Commons there was nothing to 
 insure its permanency. Gradually the feeling spread that if these defects 
 could be overcome they would be willing to abide by the King's word. 
 It was at this point that it was proposed that they proceed by a petition 
 of right. 
 
 In order to understand just what this proposal meant it is necessary 
 to keep clearly in mind the differentiation in petitions which had taken 
 place as Parliament developed as a legislative body. One differentiation 
 was due to the change from petition to bill. Certain general, important 
 petitions, which the King had assented to, were afterwards drawn up in 
 the form of statutes. To obviate the danger of changes in the wording, 
 Parliament began introducing these in their final form, that is as bills 
 instead of petitions. This made the difference between public and pri- 
 vate bills. For though the lesser demands still kept the old form of peti- 
 tion they adopted the new procedure of three readings in each House and 
 the King's assent in stereotyped form at the end of the Session. But this 
 new procedure was given only to a certain kind of lesser demand, that is 
 to those petitions which asked for legislative remedy — petitions of grace. 
 Petitions of right, those asking for judicial remedy, were sent directly to 
 the courts having jurisdiction. Such petitions of right, coming from in- 
 dividuals, were ver^"- common; but a petition for judicial remedy coming 
 from both Houses of Parliament was very unusual. Only from what the 
 Commons themselves said do we know what they meant by having Parlia- 
 ment proceed by a petition of right. According to their statements, for 
 the Houses of Parliament to present a petition of right to the King was 
 for them to act in their judicial capacity as the High Court of Parliament, 
 was for them in that capacity to declare what the law was. The King's 
 assent would have the same effect as his assent to a private petition of right ; 
 it woiild assure its enforcement in the courts. It would confirm the dec- 
 laration of the Houses; it would make it an interpretation of the law on 
 which the judges must act. A petition of right was the only remedy when 
 there was a conflict between the subject's right and the King's preroga- 
 tive. This is the essence of the private petition which still begins a civil 
 
 36 
 
THE PETITION OF RIGHT 37 
 
 suit by the subject against the King. The character of the public peti- 
 tion was essentially the same. 
 
 In considering the Petition of Right, there are two lines of thought 
 which must be followed. They are, indeed, the two objections which had 
 been made to the King's promise as contained in his message; they were 
 also the questions which were asked before the Commons would consent 
 to proceed in this unusual way. The first question was whether the peti- 
 tion could contain the explanation as found in their resolutions of April 1.^ 
 The second was whether the petition and answer would be binding on the 
 judges. In the discussion which follows these two questions must be kept 
 clearly in mind, and distinct from each other. The first has to do with 
 the content of the Petition; the second with the procedure, for it was the 
 procedure which would determine whether in the end they had an act or 
 only a petition and answer. The first work devolving upon the leaders, 
 who advocated the change from bill to petition, was to convince the mem- 
 bers of the efficacy of the new plan. The discussions which took place 
 in the House before the Petition was framed, and again after it was ac- 
 cepted by the Lords and the time for the formal procedure had come, make- 
 it very clear what the leaders hoped to accomplish by their Petition. 
 
 In the form of its content the Petition was to be a compromise be- 
 tween the declaratory bill and the King's message, more conciliatory on. 
 the one hand, more definite on the other. Even when they still expected 
 to go by bill, the Commons showed a willingness to put the bill in the 
 form of a promise. Many of the Commons had been impressed by the- 
 difference between the wording of the Lords' resolutions and their own. 
 Instead of their "Resolved . . . that the free man ought to be," the Lords'' 
 resolutions read "That his Majesty would be pleased graciously to declare."' 
 So when the bill was presented in the words of their resolutions there was a 
 protest. "I like not," said Digges, "to put it in a Law that the King ought 
 not: never act spoke in such language. "^ Shervile answered Digges that it 
 was the language of Magna Carta: "Wee make lawe accordinge to the 
 language of the lawe."^ When the Lords' resolutions came down. Sir 
 Edward Coke had objected to the form because it implied an act of grace 
 "whereas it is of right, "^ but by May 2, he was willing to make some con- 
 cession. He was willing then that the bill should be worded as coming 
 from the King; "We will and grant for us and our successors by consent, 
 etc."^ And when Sir Edward gave up on any point the matter was set- 
 tled. 
 
 It was during the debate over their remonstrance presented by the 
 Commons to the King on May 5, that the idea definitely took shape 
 that there was too much dealing in generalities, that they needed to be 
 
 1 For the resolutions see Appendix A. 2 G, 2:175. a M, 140 s/erso. « H. 2313:121. ^q, 3:1^ 
 
38 FRANCES HELEN RELF 
 
 more explicit. On May 1, Sir Edward Coke had pleaded with the Com- 
 mons to "deale clearely" with the King.^ After the King's message on the 
 following day this need was felt to be even more imperative. This time the 
 plea came from the King's supporters. They insisted that a general answer 
 would give no satisfaction to the King, that the form of their bill would 
 best show their answer.'^ All seemed willing to be more definite. Though 
 the Commons insisted on sending the remonstrance they were willing to 
 declare in it whether their resolutions were to be included or not. Men 
 as far apart as Littleton^ and Secretary Coke^ were here in agreement. 
 But Sir Edward pointed out that it was against parliamentary procedure 
 to tell the King what they were going to do in the future, that they could 
 only promise not to encroach upon the prerogative.^" That to Secretary 
 Coke was to "answer nothing but riddles."^^ The idea had taken root 
 that only by being explicit would they be able to come to any understand- 
 ing with the King. 
 
 The natural corollary to this demand was that the King be more ex- 
 plicit with them. He said he was willing to rule according to the law. 
 Would he say wherein the law had been violated? This was but another 
 way to gain their demand for an explanation of the law. The reason that 
 an explanation was necessary was because the law had been violated ;^^ 
 then in the admission in particulars lay the explanation. "I would be glad 
 to hear the King say," said Rich, "hee may not by lawe billet soldiers, or 
 lay loanes."^^ Pym spoke to the same effect: "Wee complaine of our un- 
 just imprisonments uppon loanes, I heare not one say wee shall have noe 
 more, or that matter of state shall bee noe more pretended when there is 
 none; for billeting of soldiers, is it said that it is against the lawe?"^^ He 
 thought that the lords who put the soldiers upon them really believed 
 that they were within the law. Grimston reminded them that they had 
 had even a better example than that of the misinterpretation of the law. 
 He called to their minds Secretary Coke's assertion on May 1, that he 
 would continue to commit without showing cause to judge or jailor because 
 "others in the same place have committed freely without complaint of 
 the subject."^^ This was plain speaking which Sir Edward had endorsed 
 by saying, "Now is the ax laid to the root of the tree.''^^ Pym and Rich 
 had declared that with this kind of explanation they would be willing to 
 
 6 M, 144 verso. 
 
 'May. M, 146 lerso; B, 132; H, 5324:17; G, 3:33; N, 133. Secretary Coke. U, 147; B,132 verso; 
 G, 3:34-35. 
 
 8 M, 147 verso. » M, 147 verso; B, 134; He seconded Littleton's motion. i" Ibid.; N, 135. 
 
 " M, 147 verso. " Wentworth: "A public violation requires a public satisfaction." B, 126 verso. 
 
 "M. 151. "M, 151 verso. 
 
 1' G, 2:183. For Grimston's speech see M, 152; G, 3:68; B, 142. He concluded by saying if Coke 
 did as he said "I look ere longe to bee in the Fleete agayne." B, 142. 
 
 " M, 142 verso. 
 
THE PETITION OF RIGHT 39 
 
 rely upon the King's word. Secretary Coke was quick to take advantage 
 of the opening for compromise. He was confident that if they petitioned 
 the King he would declare that imprisonment for loans was unlawful.^^ 
 Sir Edward Coke immediately proposed that they proceed by a petition 
 of right. 
 
 As far as its content was concerned the Petition of Right would differ 
 from the declaratory law they had desired only in the substitution of 
 particula n^rievanc es for the general statemejits . contaiaed-irLtheir^ resolu- 
 tiensr — The Petition of Right was no more judicial in its nature than the 
 declaratory law. They had a common beginning. In his introduction to 
 th.e Records of Parliament Holden at Westminster 1305,^^ Maitland makes the 
 statement that at that time there was no hard line drawn ''between the 
 true petition of right which shall be answered by a Fiat justitia and all 
 other petitions. "^^ According to Professor Mcllwain the idea of "making 
 law" as we understand it was entirely foreign to 17th century thought.-" 
 "In mediaeval England," he states again, "legislation in its proper sense 
 was all but unknown." He quotes Mr. Jenks^^ for the expressions that 
 they are "not enactments, but records," that they are "the law of a 
 court. "22 Professor Mcllwain maintains that in 1628 this idea remained; 
 that Parliament still seemed primarily a "law-declaring machine;" that 
 its function was still in large part "merely the enforcing and applying" of 
 the fundamental law.^^ The Commons had already decided, when they 
 still expected to go by bill, that they desired not a law with a penalty but 
 a declaratory law. On the side of content that was a much greater change 
 than the one now proposed. But the question whether the Petition could 
 contain their explanation still remained. It had really split itself into two 
 First, whether in this form the King would allow the explanation; and 
 secondly, whether particulars could contain the substance of their reso- 
 lutions of April 1. 
 
 The first question was raised by Eliot. To go about explanations, 
 he said, "is to laboure in vayne for wee are forbidden. "^^ But the rest 
 seemed confident that the King would do what Secretary Coke had promised, 
 that he would declare particular grievances illegal. It was, indeed, their 
 only hope. "His Majesty," explained Rich, "said hee would have noe 
 paraphrase or addicion, but in this way we may prefer it."^^ This answered 
 the first question, and it showed also, what can not be emphasized too 
 much, that petition was the only way left by which the Commons could 
 place their explanation on record. That it was not the best way, even. 
 on the side of content, is to be seen from the discussion of the second point. 
 
 I'M. 152; B. 142-fer5o; G, 3:70. " Rolls Series. i» p. 68. 
 
 so The High Court of Parliament (1910), p. 46. 2! Law and Politics in the Middle Ages. 
 
 «2 The High Court of Parliament, 42, 43. 23 Ibid., 110. " b, 142 verso. 
 
 26 M, 153. 
 
40 FRANCES HELEN RELF 
 
 "Let the substance of our resolutions bee putt into the peticion and I 
 doubt not of a fayre answere," said Littleton.^^ But could the substance 
 of their resolutions be put into the Petition? Was it possible for the nar- 
 ratives of particular grievances, with the prayer for remedy, to cover the 
 sweeping statements contained in their resolutions? Later on the judges 
 were to maintain that they did not. At this time the lawyers must have 
 known what the interpretation would be. To go by particulars was to 
 weaken their position. It was a compromise for it left loopholes through 
 which other, perhaps even more obnoxious, grievances might creep in.^'' 
 
 The second objection made by the Commons to the King's promise 
 had been that they^ cniiJdjioiwjejTgnd^ri it- The Commons found more 
 than one polite way of saying this. "Were the King immortal," said Noy, 
 "I should be content with his Majesties word, but who knowes the dis- 
 position of the next succeeding King, lett us therefore pass a law for pos- 
 terity. "^s Banks,29 Wilde.^o Phelips,^! and Wentworth^a all talked glibly 
 about posterity. Scudamore answered them that if it was only for pos- 
 terity they could not justify their act, if the need arose "let posterity make 
 a law for it."^^ Some were for bill instead of the promise because the 
 people would give more readily; promises woiild not satisfy them.^* This 
 was only transferring their own doubts to their constituents. Coryton, 
 alone, was willing to say what the others thought, that the King's prom- 
 ise could not be relied upon. He said it not once but three times, and 
 his proof was that though the King had answered their petition against 
 billeting, the abuse continued.^^ 
 
 To go by bill was the regular parliamentary way. This was pointed 
 out by more than one.^^ Sir Edward Coke said the final word on this point 
 in the often quoted words: "For the King's honour, he cannot speak but by 
 record. "^'^ That was on the second of May; on the sixth when the tide 
 was turning in favor of going by promise he said the same thing but even 
 more pointedly — ^"the King must speak by record. "^^ In the same speech 
 he proposed the middle course which was to be adopted. "Let us go in 
 a parliamentary way: for anie not to relie on the King it is not fitt. Trust 
 
 25 B, 143. 
 
 2' "The way of petition is new," said Coryton, "and I know not how we may name all particulars, 
 which if we omit, the country is where it was." B, 144. 
 
 This is not at all Gardiner's view of the change. He writes: "Everything to which he [the King] 
 had objected in the Bill re-appeared in the petition in a harder and more obnoxious form. . . . His 
 acceptance of the Bill would have been a friendly agreement to order his relations with the nation on new 
 terms. His acceptance of the petition would be a humble acknowledgment of error" (6:275). But it 
 was easier to acknowledge error in the past, than to bind himself by "new terms" for the future. 
 
 =8 M, 139 verso. 29 M, 137 verso; N, 110. '» G, 3:10; B, 125 verso. 
 
 31 B, 119 verso. 3j n, 126; M, 144 verso; G, 3:16. as H, 5324:7. 
 
 24 Rich. B, 117 verso; M, 137. Seymour. M, 144 veho; G, 3:17; B, 126 verso. 
 
 3' April 29: B, 117 verso; G. 2:154-155. May 2: M, 144 verso; G, 3:18. May 6: B, 140; M, 150 
 verso. 
 
 36 Banks, N, 110. Hoskins, M, 144 verso; G, 3:17. " M, 145. >8 M, 152. 
 
THE PETITION OF RIGHT 41 
 
 in him is all the confidence wee have under God; he is Gods lieutenant, 
 trust him wee must. Was it ever knowne that generall words were a 
 sufficient sattisfaction to particular grievances, was ever a verball decla- 
 racion of the King verbum Regniumf When grievances bee, the Parlia- 
 ment is to redress grievances and mischief es that happen; imprisonments 
 are our grievances, billetinge of soldiers, unnecessarie loanes etc. Did ever 
 Parliament rely on messages; they ever putt upp petitions of there griev- 
 ances and the King ever answered them. The Kings answer is verie gra- 
 cious, but what is the lawe of the Relme; that is the question. I putt 
 noe diffidence in his Majestic; the King must speake by record, and in 
 particulars not in generall. Lett us have a conference with the lords and 
 joyne in a petition of right to the King for our particular grievances. . . . 
 Messages alone never came into a Parliament. Lett us putt upp our peti- 
 tion, not that I distrust the Kinge, but because wee cannot take his trust 
 but in a parliamentary way." This middle course Coke proposed was to 
 take the place of relying on. ±h going's mess age, which he maintained was 
 contrar y to pajrll'arn pritary jrrorerliire.^^ 
 
 But that it was parliamentary did not necessarily imply that it was 
 legislative procedure, even though the Lords joined with them. The ob- 
 ject in having the Lords join with them was that thereby the petition 
 might become a record. "The petitions which move from this House 
 alone," said Wentworth, "are not put upon record, but the Lords joyning 
 with us then they are."^" That their petition should become a perma- 
 nent record was the thing, perhaps, of greatest importance to the Com- 
 mons. Hake will had objected to the change to petition because, 
 though they had had many petitions and answers of late, yet "if we 
 look after them they are not to be found."^^ "It will be a record," said 
 Sherland, "when it hath the Kings answer and entered on the Roll in the 
 Lords House. "^2 It will be a record, explained Phelips, "of the King, 
 the Lords, and us. This is no skrowle to bee lost at Whitehall or else- 
 where, but a record fitt for the Tower. "^^ It would be ^,_recqrd of what 
 the_law_was.^^ This meant that in its capacity as the highest court of the 
 land Parliament would make a judgment. "The lords have judges with 
 them and wee that have been in the same school agree with them what 
 the law is."^^ This statement from Sir Edward Coke shows how clearly 
 he conceived that Parliament would be acting in its judicial capacity. 
 "We declare the lawes," said Eliot, "which when his Majesty shall an- 
 sweare, it will give sense^® to them."*^ "If the King subscribe his hand," 
 was Pine's explanation, "he subscribeth that all therein is our right. "^^ 
 
 39 M, 152. "We found this way as a middle course that is free from all the King's messages." M, 
 20\ verso. "H, 5324:28. " M, 153. «G, 4:113. "B, 195. 
 
 "Pine. M,ZQ\ verso. «M, 202. « Lt/e instead of ^ense in M (200 rerio). 
 
 ""B, 194: verso. "G, 4:113. 
 
I 
 
 42 FRANCES HELEN RELF 
 
 It is very evident that Coke had proposed a much stronger way than rely- 
 ing on the King's message. He had proposed the parliamentary way for 
 redress of grievances. But the Commons were not willing to accept this 
 proposal unless it was to have the force of a law. "If petition amount to 
 a law I like it," said Cory ton, "if not I am against itt, for we shall act 
 nothinge."^^ Others, though they consented to go first by petition, ex- 
 pressed their unwillingness to commit themselves as definitely giving up 
 procedure by bill as their final action.^" The question was left in the air 
 imtil the time came that it was necessary to take formal action. That 
 was after the Lords had agreed to accept the content of the Petition, and 
 it was necessary to decide definitely whether they should follow the pro- 
 cedure of a bill or petition. Then on May 27, Coke,^^ Littleton, Phelips, 
 Alford,^^ Sherland,^^ all maintained that they could not in honor change 
 back again to a bill. "If we go not by petition," said Littleton, "we for- 
 sake our promise to the King, endanger the work, and quite depart from 
 the Lords. "^* "I appeale to any mans harte," was Phelips way of putting 
 it, "whether ever it were intended otherwise then as a petition. "°^ To 
 this Cory ton answered: "The first intent of this House was by way of 
 penalty and by a new lawe; we fell upon a petition, but we all proposed 
 to make it the strongest we canne. It is true the King will not have a new 
 lawe, but in this [we] goe not beyond the lawe, nor have wee enlarged our 
 liberties, and this is confirmed by the wisdome of the whole Kingdome rep- 
 resented by the lords house and ours."^^ Coryton would have opened 
 up the whole question anew. 
 
 This debate of the 27 makes clear what was not clear from any evi- 
 dence that we had for the 6, that those who advocated the petition 
 then knew that it would not be equivalent to a law. "We went to this 
 as a middle way," said both Alford" and Coke.^^ Pine was even m.ore posi- 
 tive: "At the first the question was made whether the way of petition was 
 a binding law or no; and it was then declared that it was not, and then 
 also we agreed to trust the Kings word."^^ It was Pelham, however, who 
 gave the real reason for desiring to hold the members in line for the peti- 
 tion. "The King declared," he reminded the House, "that if wee went by 
 Act of Parliament, he would not assent."^" After their long struggle with 
 
 « B. 144. 
 
 60 Wentworth, G, 3:74; Digges, H, 5324:28. Eliot, Ibid., 27. When it was moved to put it to the 
 question whether to go by petition, EHot wished to amend the motion. "Not to put the question of petition 
 of right singly to the question, but so to be drawn as that it, and the King s answer, be putt upon record, 
 entered into the motion of both houses, and after to be putt into a bill." 
 
 " "To add a new addition and join to a law again, we shall not do like ourselves." M, 201 verso. 
 
 t2 "The lords may take it ill, and somebody else too." G, 4:111. 
 
 •» "We all promised we would trust the Kings word, so that it were Verbum Regum to a petition of 
 right." M, 201. 
 
 6* B, 194 verso. " itid. 68 M, 201. " M, 200 verso. 
 
 i^ Ibid., 201 verso. ^^ U, 201 verso. '"G, 4:113, 
 
THE PETITION OF, RIGHT 43 
 
 the Lords, the leaders had no intention of courting failure by allowing the 
 King such a loophole. 
 
 With all hope gone of changing the Petition back to a bill, the doubt- 
 ful members raised the question that was the real test — would it bind the 
 judges ?^^ Pelham^2 ^^d Pine^^ declared that though they could not take 
 notice of the Petition, yet they would be bound to take notice of the laws 
 of which it was an explanation. Sherland went further, claiming that as a 
 record the judges were "bound to take notice of it."^* And Sir Edward 
 Coke quoted precedents to prove that "whatsoever the lords house and this 
 house have at any time agreed upon no judge ever went against it; and 
 when the judges in former times doubted of the law they went to the Parlia- 
 ment, and there resolutions were given to which they were bound. "^^ 
 Evidently these assertions satisfied at least a majority of the members, 
 for it was ordered "that this Petition of Right as a Petition of Right be 
 •sent up to the Lords."^^ 
 
 Both in content and procedure the Commons had determined to go 
 by petition. Yet in order to satisfy certain members some legislative pro- 
 cedure was mixed in. It is due to this mixed procedure, no doubt, that 
 we have such contradictory statements as to whether or not the Petition 
 became a law. Only by following its course step by step as it went through 
 the Houses, was answered by the King, was enrolled, and finally as it was 
 interpreted by the judges, is it possible to find out what the Petition and 
 Answer are. 
 
 « Ball: "If it be as a petition, I would know if the judges can take notice of it." M, 201. 
 
 MG, 4:113. «3 M, 201 j/eyjo. "G, 4:113. 
 
 85 M, 201. It seems probable that it was to this statement by Coke that the King made reference 
 in his speech to both Houses at the close of the Session. "I command you all that are here to take notice 
 ■of what I have spoken at this time, to be the true intent and meaning of what I granted you in your 
 Petition; but especially you, my Lords the Judges, for to you only, under me, belongs the interpreta- 
 tion of the laws; for none of the Houses of Parliament, either joint or separate (what new doctrine soever 
 may be raised), have any power either to make, or declare a law without my consent." O.P.H. 8:242. 
 
 65 G, 4:115. 
 
CHAPTER VI 
 
 FORMAL ACTION ON THE PETITION OF RIGHT 
 
 In spite of a considerable opposition, the Commons had resolved ta 
 go, not by bill, but by petition. They carried out this resolution, but in 
 doing so they yielded to the opposition wherever possible. In considering 
 the procedure, therefore, one must decide at each step not onl}^ whether 
 it was legislative (the procedure for a bill), or judicial (the procedure for 
 a petition of right) ; but also whether it was a step which definitely com- 
 mitted the Commons to the one or to the other. The question is further 
 complicated by the fact that this was a very unusual kind of petition. 
 Most of the petitions at this time came from the lower House only;^ or, 
 if from both, the request was for something of a temporary nature as, 
 for example, a fast day. At every step, therefore, the proper mode of 
 proceeding was open to question. For this reason it is impossible at times 
 to say any more than that that particular step did not commit the Com- 
 mons definitely to procedure by bill. But though on one hand the novelty 
 of the Petition complicates the problem, on the other hand it helps the 
 student to solve it. Because of the novelty, each step was thoroughly 
 discussed by the Commons before any action was taken. For this rea- 
 son we are never in doubt as to their intention or as to the exact signifi- 
 cance they attached to their action. Another complication arises from 
 there being two kinds of bills, public and private. One woiild naturally 
 suppose from its content, that if enacted the Petition became a public 
 not a private act. Yet it will be seen that wherever the procedure was legis- 
 lative it was the procedure for a private and not a public bill. It is much 
 more difficult to distinguish between a private bill and petition than be- 
 tween a public bill and petition. Here again we can often be guided only 
 by the discussion in the lower House. There is little to be found else- 
 where on the finer points of procedure. 
 
 In taking up each point one must first combat the traditional view, for 
 in nothing pertaining to the Petition does one meet with so many mis- 
 taken notions as in regard to the formal action taken upon it. Perhaps 
 no notion is more firmly fixed than that in going by petition the Com- 
 mons were turning back to the legislative procedure of the earlier time 
 when all laws were initiated by petition and then afterwards put into the 
 form of statutes. That was what Hakewill thought when Coke first made 
 
 1 In 1610 the Commons presented a petition "touching Restraint of Speech" (C.J. 1:431). A diary 
 for that Session calls it "a petition de droit" (Parliamentary Debates in 1610, 40). It is of essentially the 
 same character as the Petition of 1628 being the result of conflict between a right of Parliament members 
 and the King's prerogative. 
 
 44 
 
THE PETITION OF RIGHT 45 
 
 his proposal. Why, he asked, should they go back to a method which 
 had been abandoned two hundred years before ?2 But those who, on May 
 26, advocated giving the Petition the procedure of a bill were not hark- 
 ing back to the old way for they considered that going by bill or petition 
 was not at all a matter of form but only one of procedure. "Itt is in the 
 forme of a bill," one member pointed out.^ It was in the form not of a 
 public but of a private bill. Private bills have always kept the petition- 
 ary form;* in 1628 they were enrolled as petitions concerning private par- 
 ties containing in themselves the form of acts.^ As far as its form was con- 
 cerned the Petition could be made either a private bill or a petition of right. 
 The first formal action taken upon the Petition was the three readings 
 in the House of Commons. "Lett the petition," Rich moved, "have the 
 solemnitie of a bill."^ He v/as seconded by Wentworth. Without seeming 
 to attach any particular significance to the procedure, the Petition was 
 read twice and ordered to be engrossed.^ It was not until the next day, 
 after the third reading, when they were ready to send the Petition up to 
 the Lords, that the issue was squarely faced. If the Commons endorsed 
 the Petition with the words Soil bailie aux signeurs they wotild thereby 
 make it a bill.^ According to Elsynge, it was by this endorsement that 
 the Commons began to have any part in the action taken upon petitions, 
 and by this participation they changed them from petitions to private 
 bills. ^ Here again it must be noted as in its form, the resemblance is to 
 a private not a public bill. The reasons given by those who wished the 
 endorsement were two. First it would make it a law. This argument was 
 advanced by those who still doubted the efficacy of going by petition." 
 The second reason was that it would strengthen the Petition. "I desire," 
 said Wentworth, "nothing may be omitted to make this peticion to all 
 posterity firme and free."^'^ "We fell upon a petition," said Coryton, "but 
 we all purposed to make it the strongest wee canne."^^ Perhaps Rich, better 
 
 2 M, 153; B, 144; H, 5324:28; G, 3:75. 3 Rich, B, 193. 
 
 * See Mcllwain The High Court of Parliament, p. 223. 
 
 5 Rotutus Parliamenti de Anno Tercio Caroli Regis. Printed in Statutes of the Realm, Intro., 77-78. 
 
 8 M, 199. 
 
 ' The readings were not recorded in the Journal in the same formal way as the readings of a bill. 
 Instead of "L la" and "L 2a," the simple fitatement is made: "The Petition of Right twice read" (C.J. 
 1:905). The "petition de droit" referred to above (n. 1) received three formal readings. C.J. 1:431. 
 
 8 Littleton. G, 4:112. 
 
 • "In the time of Henry 4, few petitions were directed to the king and his council. Some were directed 
 to the king alone; some to i/je /o-di alone and some to the commons. But I find no answer by the commons. 
 Only, if they were petitions of grace, the commons wrote this inscription over the first line, viz. Soil 
 bailie as seigneurs pur parler aroy; or Soil parte a roy per les seigneurs. The others were sent up to the 
 lords without any direction; and here first began the private bills now exhibited in Parliament." Henry 
 Elsynge. The Manner of Holding Parliaments, London, 1768, p. 287. It was written by Elsynge in 1625 
 while he was Clerk of Parliament. Ibid. Preface vii. 
 
 •"Ball: "If there be that endorsement, it is a law; if not, I know not what fruit it shall have." 
 M. 201. 
 
 " G. 4:106. '2 M, 201. 
 
I 
 
 46 FRANCES HELEN RELF 
 
 than any one else, explained how the endorsement would strengthen the 
 Petition. "This," he explained, "will witnes our assent to all posteritie, 
 or else it may bee a question whether wee assented or not, there is noe 
 •other stampe of our assent; if wee would have the memoriall of this to 
 endure to posteritie, lett it appeare by the record itself e."^^ The Commons 
 were trying to do two distinct things at the same time. They wan ted t he 
 King's assent onrecordj, but they also wanted the strongest possible decla- 
 ^ ration from the two Houses.^^ The reason they wanted the latter is obvious. 
 Sir Edward Coke maintained that "whatsoever the lords house and this 
 house have at any time agreed upon no judge ever went against it."^^ But 
 though he made this claim, Coke was one of those who most positively 
 opposed the endorsement. Aside from the objections (already enumer- 
 ated) involved in going back to a bill, there was an added objection in 
 regard to the King's answer. 
 
 The same subcommittee which had been appointed to report on how 
 the Petition should be sent up to the Lords was also to report on how 
 they should ask the King to give his assent. Though they could not come 
 to any agreement on the first question, they were imanimous in desiring 
 that the King give his assent in full Parliament. Coke maintained that 
 it was part of the procedure of a petition from both Houses that it be 
 answered in Parliament. ^^ Such a petition was "no Whitehall case."^^ 
 They must urge it upon the Lords as the proper procedure for their Peti- 
 tion.^^ But if it were endorsed, they could not ask the King to assent in 
 Parliament without asking that he make it a law.^^ From the first there 
 had been a desire to surround the King's promise with all the form and 
 solemnity possible. Entirely aside from the question as to whether his 
 answer given in Parliament would be more binding than if given at White- 
 hall, there was the question of the effect on the public. In the eyes of the 
 outside world, pomp and ceremony would play an important part. The 
 leaders by no means neglected a consideration of the probable effect upon 
 the King of a wide spread knowledge of the solemnity of his act.^" From 
 
 " M, 200 verso. 
 
 " In referring to the Petition a year later, Selden termed it "the Declaration of both houses of parlia- 
 ment, and the Answer of his Majesty to that Declaration." State Trials 3:265. 
 
 I'M, 201. For the King's answer to this assertion see above p. 43, n. 65. I'M, 202;B, 195; G, 4:114. 
 
 " M, 202. Petitions from the Commons alone were answered at Whitehall. 
 
 » Coke believed so strongly in the judicial functions of Parliament, he looked upon the Petition so 
 entirely as a judicial act, that it seems fairly safe to conclude that any procedure proposed by him was 
 judicial, not legislative. 
 
 " "This [the endorsing] being done," said Rich, "wee shall referr it to his Majestic either to answer it 
 in Parliament and then it is an Act of Parliament, if ought of Parliament then it is but a petition." M , 
 200 verso. 
 
 20 Upon his delivery of the Petition to the King, the Lord Keeper was to say: "It is the humble 
 desire of both Houses, in respect of the great weight of the business, and for the strengthening of it, and 
 •for the more comfort of his loving people, that His Majesty would be pleased to give His Answer in full 
 Parliament." L. J.3:827. 
 
THE PETITION OF RIGHT 47 
 
 Pym came the proposal which solved the problem. ''Lett it bee carried 
 up indifferently," he suggested, "and lett the lords know that wee will pre- 
 sent it to his Majesties grace to bee the one or the other."^^ But which- 
 ever he might desire to make it, said Pine, "to move that the King wold 
 magnify himself soe much as in Parliament to give his consent. "^^ It was 
 so ordered by the House.^^ In sending the Petition up to the Lords, the 
 Commons did not commit themselves decisively for either bill or petition. 
 
 On the same day as the Petition was sent up to the Lords, May 27, 
 it received three readings there and, being put to the question, was assent- 
 ed to unanimously.^^ If such an action had no significance in the lower 
 House neither had it in the upper. It was not decisive either way. At 
 most we would naturally conclude that it was only yielding to the op- 
 position on a nonessential point. Parliament considered that up to this 
 time they had not committed themselves one way or the other. The 
 King's answer becomes then the determining action. Regarding this an- 
 swer there are three points to consider; the place, the time, and the form. 
 The significance of the first has already been discussed. After some de- 
 bate,^^ the Lords joined with the Commons in requesting that the answer 
 be given in full Parliament.^^ The King complied. As far as ceremony 
 was concerned the Petition was answered in exactly the same way as were 
 bills.2^ We have not yet come to the parting of the ways. 
 
 The second point is the time when the answer was given. According 
 to the usage of that period no law received the King's assent until the 
 end of the Session. When the Petition was first proposed, Rich had point- 
 ed out that one of its greatest advantages was that they could have the 
 King's answer before they decided on the bill of subsidies.^^ On the 27, 
 Sir William Beecher again called this to their attention. "If we send it 
 up with the Indorsement as a law," he pointed out, "we cold have no 
 answere till the late end of the Parlament."^^ Against this view there 
 was only one member who protested. "As for the Kings assent," claimed 
 Ball, "though he now give assent, yet it is noe session,^" and in 18 Jac. it 
 was so resolved by the house. "^^ The records for the Parliament of 1620- 
 
 i^M, 201, verso. 22 G. 4:114. 
 
 23 "By question resolved that this Petition of Right shalbe sent up to the Lords as a Petition of Right, 
 and they desired to joyne with us in presenting it to the King. 
 
 "2. Resolved: that the Lords shal bee desired to joyne with this house to desire the King to give 
 his answer thereto in full Parliament." G, 4:115. See also C.J. 1:905-906. 
 
 -^ "Hodie la. vice lecta est, the said Petition of Right. . . . Hodie 2a et 3a. vice lecta est, the 
 Petition of Right. Put to the Question, and Assented unto per omnes, nemine dissentient." L.J. 3:826. 
 
 26 76Jd., 826. ^Ibid.,&n. 
 
 2' Compare Ibid., 835 and 843 with 879. This of course applies to the first as well as the second 
 answer. The Petition for Religion presented by both Houses in 1625 was answered by a message instead 
 of in this formal way. L.J. 3:465. 
 
 28 M, 153; N, 147; H, 5324:28. 2' G, 4:112. 
 
 30 It does not end the session, is what he meant, " M, 201. 
 
48 FRANCES HELEN RELF 
 
 21 do not bear out his assertion, but rather the opposite view.^^ That 
 the Petition received the King's assent in the midst of the Session is in- 
 deed, to me, the strongest evidence that it was granted as a petition and 
 not as a bill.^' 
 
 It is, however, the third point that has always been considered the 
 vital one. Most writers have claimed that the King's second answer made 
 the Petition a law.^* That answer was in the words. Soil droit fait come 
 est desire' . The claim is based on the supposition that these words are a 
 usualJormjlf_assent_to_a bill.^^ If that is true then it follows that a peti- 
 tion of right is a usual form of bill; the two things must go together. Is 
 there any authority for such a supposition? In the time of Henry VIII, 
 we find clearly set forth three kinds of bills, public, private, and money, 
 with the stereotyped form of answer for each.^^ D'Ewes in his Journal 
 of all the Parliaments of Queen Elizabeth gives the same three kinds of bills 
 with the same answers.^^ There seems to be only one authority for in- 
 cluding a petition of right among the several kinds of bills. That authority 
 is a poorly recorded speech of Selden's on June 24, 1628. As a proof of 
 the real character of tonnage and poundage, Selden pointed out that such 
 a bill received the same form of assent as other money bills. In doing 
 this he gave the forms of bills with their answers. As given in Rush- 
 worth his list includes petitions of right and the answer which he gives 
 for it is that which the King had given to the Petition on June 7.^^ But 
 
 '2 The question arose when the King decided to adjourn the Session for the summer instead of pro- 
 roguing it. He was willing to give his consent to some bills that were ready if that act would not bring 
 the Session to a close. In both Houses and among the judges there was a sharp difference of opinion. 
 The Lords wished to obviate the difficulty by passing "An Act that the King's Royal Assent to some 
 special bills shall not determine the sessions." The Commons decHned to consider this bill largely be- 
 cause, as a matter of policy, they did not wish the King to assent to any bills at the time; but there was 
 also the feeling that in doing so a dangerous precedent would be established. For these proceedings 
 see L.J. 3:146. 148, 150; C. J. 1:630, 633, 634, 638; Nicholas for 1621. 2:113, 137. 138. 139. 141. 
 
 33 In 1625, under circumstances similar to those in 1621. an act. 'That this Session of Parliament 
 ■shall not determine by His Majesty's Royal Assent to this and some other Acts.' was introduced and 
 this time became a law. Before the Session was adjourned the King gave his assent to several bills. 
 But the circumstances were very different from those surrounding the assent to the Petition of Right. 
 It was immediately before an adjournment of considerable length, the assent was given in return for a 
 money grant, and all the bills then ready were presented. It can hardly be considered as a parallel case to 
 that of 1628. There was indeed special reason why, if the Petition was an act, it should have been passed 
 with the bill of subsidy. The intention from the first had been that the two should go hand in hand. 
 To that end supply and grievances had been referred to the same grand committee. C.J. 1:875. 
 
 "Gardiner: "The Petition of Right like every other statute ..." (6:327). 
 Forester: "From this summer afternoon was to date the enactment of a law" (2:103). 
 Taswell-Langmead: "The King . , . gave to this . . . compact , . . the sanction of an 
 Act of Parliament" (p. 439). 
 
 Gneist: "The King is compelled . . . to approve the declaratory statute" (2:236). 
 
 35 Gardiner: "The clerk pronounced the usual words of approval" (6:309). 
 Hallam states that the King assented "to the bill in the usual form" (1:382). 
 Taswell-Langmead: "The king at length signified the royal assent in the customary form" 
 
 (p. 439). 
 
 36 L.J. 1:9. 3' p. 35. 
 
 38 "For public Bills, the King saith, LeRoyveuU; for Petitions of 'Right, Soil droit fait come est desire. 
 For the Bill of subsidies ..." (1:628). 
 
THE PETITION OF RIGHT 49* 
 
 from the list is omitted entirely the private bill and its answer. That that 
 was what Selden really gave instead of the petition of right is suggested 
 by another version of this same speech which gives the regulation answer 
 to a private bill.^^ Among all the modem writers on parliamentary pro- 
 cedure only one includes petitions of right among the several forms of bills; 
 and he fails to cite any authority for so doing.^" There does not seem 
 to be then any basis for the assumption that a petition of right was a 
 legislative procedure with a stereotyped form of answer. 
 
 That there was no regular form of answer for a public petition of right 
 is further proved by the variety of answers considered at the meeting of 
 the Council.'*^ The use of English instead of the old Norman-French, the 
 length, and the variety all show no knowledge of any existing model. 
 The answer soit droit fait come est desire' was suggested not by the Council 
 but by Parliament.^^ According to a contemporary writer they claimed that 
 it was the "ancient form" of assent to a public petition of right.^^ Whether 
 they had any basis of authority for such a statement, ^^ or whether they 
 arrived at their conclusion by a process of deduction, it is impossible to 
 say. The latter would not have been difficiilt. There still remained the 
 private petition of right with its stereotyped form of answer, Soit droit 
 faite a la partie. With this form of petition, Parliament no longer had 
 anything to do. But there was a form of petition remaining to Parlia- 
 ment; this was the petition of grace, which had become the private bill, 
 and the stereotyped form of answer for which was Soit fait come il est 
 desire'. What was more natural than to conclude that in the time when 
 all petitions were presented through Parliament, the answer to the peti- 
 tion of right partook somewhat of the form still retained by the parlia- 
 mentary petition? However that may have been, it is safe to conclude 
 that the Commons modeled their proposed answer on the answers to a 
 private petition of right and to a private bill.^^ 
 
 89 "For public bills the king saith soit fail come il est desire; for the bill of subsidies" . . . (M, 270 
 verso). It is very evident that there is a serious omission in this record; it has left out the answer to the 
 public bill and the kind of bill to which soit ... is the answer; but that that is a private bill there can 
 be no doubt. 
 
 *° Sir Erskine May gives money bills, public and private bills, and then adds, "upon a petition de- 
 manding a right, whether public or private, Soit droit come il est desire" (p. 484). The authority he cites 
 is D'Ewes who, as has already been pointed out, does not include this. 
 
 <i For the full text of the proposed answers see Appendix C. 
 
 " In giving his second answer the King said, "I am willing to please you in words as well as in the 
 substance." L.J. 3:843. 
 
 " Mead explained, in a letter he wrote on June 15, that the King "was told they desired the ancient 
 form heretofore used by his ancestors." Court and Times 1:362 n. 
 
 " If there is any authority, modern writers on the subject have all missed it. 
 
 ^' Sir Wm. Anson gives this solution of the problem: "The Petition of Right is the only great public 
 statute to which the royal assent was given in terms applicable to a private bill: and perhaps the Petition 
 of Right may be regarded not so much as a statute making new law as an address of both Houses to the 
 Crown that the ancient laws and statutes of the realm should be observed. It may be that to such an 
 address it was not thought suitable to reply in the words of assent to a request or proposal for new legis- 
 lation" (Pt. 1:287). 
 
50 FRANCES HELEN RELF 
 
 What then is the meaning of Soit droit fait come est desire' f Should it 
 be translated Let right he done as is desired? This would make it a promise 
 for redress of grievances. In giving the second answer the King said: 
 "This I am sure is full, yet no more than I granted you in my first answer."^^ 
 The first answer had been: "The King willeth that right be done accord- 
 ing to the laws and customs of the Relme." . . . The wording of this 
 taken with the King's assertion is sufficient proof that the judicial trans- 
 lation is correct. This is confirmed by the character of the other answers 
 proposed at the Council meeting. Great as is the variety in these pro- 
 posals, they all agree in certain points. They are all the King's promise 
 that the law shall be observed. Some are much more explicit than others, 
 some even limit the interpretation of the law as given in the Petition, but 
 all are the King's promise for judicial remedy. 
 
 In the face of the contemporary evidence, one must admit at the very 
 least that both answers were of the same character, that is that either 
 they were both judicial or both legislative. Admitting that, another proof 
 that the second answer was not legislative, that it did not make the Peti- 
 tion a statute, is to be found in the traditional interpretation of the first 
 answer. Most writers assert that it was in reality a negative answer.^^ 
 The contemporary evidence is all opposed to this view. The objection 
 of the Commons was only that it was too vague, too ambiguous. It 
 "hath no relacion to the peticion," said Pym, "the answere being left at 
 large to the lawes, whereas we have in our peticion alledged certyene 
 lawes."^^ "Lett his Majesty declare his meaning," said Rudyard.^^ "Not 
 to desire a new answer," said Hobby, "but an explanation of that answer." 
 Phehps, who felt that the answer had really come from Buckingham and 
 not from the King, added, "an explanation of himself by himself, not of 
 any others who make him to speak in oracles. "^° These objections show 
 that they did not consider the first answer equivalent to a refusal or that 
 it made the Petition ineffective; their only objection was to its vagueness. 
 Vague as it was, there were those who upheld it. "There may be a pos- 
 sible interpretacion to make it good," said Pym.^^ "I do not hold it al- 
 together unsatisfactory," was another's opinion.^^ g^^ Coryton was most 
 to the point: "The answer may receive various constructions, and so it 
 may receive a good one and so I take it, but, howsoever the Lords and 
 
 "LJ. 3:844. 
 
 *' Of the first answer Gardiner says that it "meant nothing at all It was Charles's old offer 
 
 of confirming the statutes whilst refusing the interpretation placed upon them by the Commons" (6:297). 
 
 Taswell-Langmead says that the first answer "was tantamount to a refusal to pass the Bill," whereas 
 the second gave it "the sanction of an Act of Parliament" (p. 439). 
 
 They could not very well have come to any other conclusion. There could be no half way about a 
 legislative answer. 
 
 *' Pym, N, 188. "The petition cometh not home," is the way it was put by Hayman. G, 5:55. 
 
 "B, 222. "G. 5:47. " G, 54. 
 
 " Vaughan, G, 55. 
 
THE PETITION OF RIGHT 51 
 
 Commons have agreed this to be our rights, and I think no minister of jus- 
 tice dare do to the contrary, and I think this may well satisfy. "^^ 
 
 The belief that the two answers were opposed to each other, that the 
 first was negative and the second positive, has undoubtedly been fostered 
 by another equally mistaken notion. This is that the Commons Joi:ced 
 the King to gi ve the second answer bv bepnning immediatelv an attack 
 upon Buckingham. The -desire for a. second answer was not the moti ve 
 b^k^o Lthat attack . The connection between the two is quite different, 
 "llie Kin^ offere d the se cond _a nswer in an attempt, futile as it proved,^o_ 
 stop Tfiat remonstrance. In order to remove this mistaken notion re- 
 garding the^ demandTor a second answer it is necessary to give a detailed 
 account of what took place in the House of Commons between June 2, 
 when the first answer was given, and June 7, the date of the second. It 
 is necessary even to go back much fiurther in order to explain why the 
 attack was made at this time. Forster, in his Life of John Eliot, tells how, 
 four days before the Session began, the leading members of the lower 
 House met together to formulate their plans. Eliot wished to revive the 
 impeachment of Buckingham, but he was overruled and it was decided 
 to proceed by bill as the better method of putting an end to the abuses.^* 
 Only after reading the debate of June 3, and the succeeding days, can one 
 appreciate the restraint the Commons put upon themselves. "We never 
 meddled with persons," said Selden, looking back, "we were upon the 
 substance only."^* As long as there had been the expectation of reaching 
 the ministers by a law no protest had been made; but when the question 
 arose of abandoning th e bill with a penalty there was an immediate out- 
 cry. "We have declined," said Cory ton, "seeking the punishment of 
 those that have beene the cause of those breaches on our liberties, and if 
 we have not examples made to deterre others from doing the like, then we 
 must make a lawe to prevent the like for the future. "^^ It was men like 
 Eliot and Wentworth, the men most anxious to punish the ministers, who 
 were the last to rehnquish the hope of returning to a bill. From what 
 followed it seems probable that, at the time the Petition was decided upon, 
 they were promised by those favoring the Petition that as soon as that 
 was safely out of the way they would be given the opportunity to make 
 their attack. One can not but think that for many days Eliot had had his 
 speech of June 3 prepared. Without waiting even for a discussion of the 
 King's first answer, he sprang it upon the House. 
 
 Eliot's speech came, no doubt, as a great surprise to most of the mem- 
 bers, and they naturally looked for the cause in what had immediately 
 preceded it. "It is folly," said one of the King's supporters, "to conceal 
 what every one thinks, this speech came from the scantnes of the Kings 
 
 H L, 39. w 2:1-2. w June 10. M, 237 verso. 
 
 " N, 125. "Either example or law must secure us." G, 3:13. 
 
52 FRANCES HELEN RELF 
 
 answer to our petition, let us apply ourselves to that and petition his 
 Majestie for a fuller."^^ Eliot was quick to answer: "Where it is said 
 that some distrust of the Kings answer caused this, I protest to the con- 
 trary, and I and others too have had this resolution to satisfy his Majesty 
 therein, only we stayed for an opportunity."^^ Had the King given the 
 more satis factory answer in the begin ning, the attack on Buckingham would ,~ 
 nevertheless, have followed. His answer had proFably^inadeTt more bitter^ 
 
 "out that was the only connection between th e two. That the King'be- 
 lieved that the'"attack was the result of his answer is evident from the 
 character of his first attempt to stop the remonstrance. In a message 
 delivered by the Speaker on June 4, he declared his resolution to a bide by 
 his answer to the. Petition ''without further change or alteration "^^ It 
 was his announcement to the Comnions that he_ would not be intimidated ; 
 if that was their purpose they might _asu_wen ^ive up. Without making 
 any comment on the message, the Commons proceeded with their regular 
 business. The next day came a more peremptory message. They were 
 ordered not to take up any business "which may lay any scandal or asper- 
 sion upon the state, government, or ministers thereof. "®° This message 
 served only to intensify the feeling and to make the members speak 
 more plainly. The Speaker became so terrified, when he found himself 
 unable to stop the torrent of words, that, upon the House going into com- 
 mittee, he asked permission to leave. While the Commons proceeded to 
 name Buckingham as the "grievance of grievances''^^ and the evidence was 
 being heaped up against him, the Speaker was closeted with the King 
 discussing their next move.^^ Upon his return, he immediately adjourned 
 the House until the next morning. At that time, after explaining in very 
 conciliatory terms the King's last message, he continued: "This day was 
 appoynted to consider of his Majesties answer to our petition. I hope 
 if wee find anie thing fitt for our comfort wee will lay hold on it, if not 
 wee may seeke for a fuller answer. "^^ The King had played his last card. 
 It may be said by some that even in spite of Eliot's denial, all that the 
 Commons had done so far they had really done in order to force the King 
 to make this offer. But that assumption is disproved by their refusal to 
 take advantage of the offer. This is clearly demonstrated by the fact that 
 the burden of argument was put upon those who wished to petition for 
 another answer. "If it be declined now," said Alford, "it may hereafter be 
 
 " Sir Thomas German. M. 211 verso-2\2. ^s m, 212. 
 
 "O.P.H. 8:168. f^f^ Ibid., 190. ei Sir Ed. Coke. G, 5:26. 
 
 «2 Packer: "our Speaker gone to the King" (G, 5:38). "The Speaker having been three hours 
 absent, and with the King" . . . (From a letter by Mr. Allured, a member, written on June 6, and 
 printed in Rushworth 1:609-610). "The Speaker seeing the house so moved in the morning, and none 
 scarce able to speak, and himself also in that condition, desired leave to go out a while, which was granted 
 and he went to the King, and stayed with him till near 12 of Clock" (M, 218 verso). 
 
 " M, 219. 
 
THE PETITION OF RIGHT S3 
 
 denied. ... A good answer to this will bring good content to our 
 country. ""^^ Eliot had given as the reason for not asking for a fuller answer, 
 that it would involve conferences with the Lords which woiild consume a 
 great deal of time. He suggested that they leave it to the King to make 
 an explanation if he so desired. ^^ To this Perrot^*^ and Strangewayes" 
 objected. How could the Commons expect an explanation from the King 
 unless they let him know they were dissatisfied? Here the subject was 
 left; no one had even suggested that it be put to the question. Instead 
 that subject was dropped, and it was ordered that the grand committee 
 for the remonstrance should sit. 
 
 By this time the remonstrance was pretty well in shape. On the day 
 before, while the Speaker was absent, the heads had been decided upon. 
 Now the Commons took up the detail. On the following morning there 
 came a message from the Lords desiring a conference regarding the King's 
 answer to the Petition. The motive behind the Lords' proposal was the 
 same which had actuated the King, the hope of putting a stop to the 
 remonstrance. 'T believe," Bristol had said in support of the proposal 
 when it was introduced in the upper House, "that those distractions and 
 fears which since have sprung amongst us took their original from that 
 answer."^^ This is seen also in the Lord Keeper's speech at the conference. 
 The reason he gave for making the request to the King was "because the 
 Lords conceive that the good intelligence between the King and his people 
 depends upon the said answer."^^ The Commons returned to their own 
 House to debate whether they should join with the Lords. Coryton dis- 
 approved of the haste with which the matter was being put through.'^" 
 He moved "to have our answer to the Lords put off till Monday."''^ But 
 Eliot, the leader in the attack on the administration, turned the tide when 
 he gave as his opinion that "this proposition doth no way contradict that 
 way we were in."'^^ With the understanding that they should still go on 
 with the remonstrance, the Commons joyfully accepted the proposal of 
 the Lords. T he second answer had not been forced^om the King, nor 
 had he gained anything by giving it. It must not be thought that the 
 Commons had at any time shown an unwillingness to accept a second 
 answer. The feeling had been only that by asking for another answer 
 they would do their cause m.ore harm than good. The harm such a re- 
 quest might do lay not alone in the effect it would have on their remon- 
 strance, but in the effect it would have on the interpretation of the Petition. 
 
 6* M, 220. 
 
 '^ "I assure myselfe his Majestie will explaine him selfe without our suit" (M, 220). See also L, 39; 
 N. 187. 
 
 6^G, 5:52. "G. 5:54-55. 
 
 5' Gardiner, 6:308. He quotes trom Elsing's Notes. '» M, 224 verso. 
 
 '0 "There is no such haste (and not liked of)." L, 41. " G, 5:86. '2 M, 224 »erjo. 
 
54 FRANCES HELEN RELF 
 
 The Commons' chief reason for being reluctant about asking for a 
 second answer had been their fear of failure. "If we should fail what 
 interpretations abroad," one member had objected when the subject was. 
 first introduced. ^^ Sir Edward Coke had expressed no opinion during the 
 debate. After the second answer was received he explained: "I would not 
 find fault with the last answer (I had so mutch wit in my head) till I were 
 sure whether we should have a better one."^* To have objected to the 
 first would have been to have interpreted it. Until they were assured of 
 an answer in which there was "no doubtfulness nor shaddowe of am- 
 biguity,"^^ it was policy for them to interpret the only answer of which 
 they could be sure in the light they wished the judges to interpret it. 
 This, perhaps, more than any of the other evidence presented, proves the 
 point that I have tried to make clear, — that the two answers did not dif- 
 fer, the first being negative and the second positive. The difference lay in 
 this that the first was ambiguous, the second was clear. This conclusion 
 can not be applied to answers to legislation, but it can be applied to an- 
 swers to a petition of right. ^^ 
 
 This account of the Progress of the Petition through Parliament has 
 failed unless it has proved first, that whatever legislative action was taken 
 did not prevent the progress of the Petition as a petition of right; and 
 secondly, that the legislative action was that of a private and not a pub- 
 lic bill. A private act is not a binding law. It is doubtful whether the 
 Commons' lawyers, especially Coke, woiild have considered it as having 
 as great force as a declaration of the law given by the two Houses in their 
 judicial capacity and endorsed by the King. This latter is, moreover, the 
 conception of the Petition which, I am convinced, was generally held at 
 the time. There would, indeed, be little point in telling the story of the 
 Petition's progress through Parliament, if afterward it had been treated 
 as a binding law. In order, therefore, to determine the force of the Peti- 
 tion and Answer it is necessary to follow its course after June 7. 
 
 There are two things to consider in discussing the force of the Peti- 
 tion and Answer; first, the attempts to give it publicity and permanence; 
 secondly, its interpretation by the judges. A consideration of the first will 
 show that it was not treated as a public, or even a private, statute. When 
 on May 6, the idea of going by petition had been first discussed the general 
 idea had been that with the King's answer it should be used as a preamble 
 
 " Vaughan. G. 5:55. " B, 225 verso-226. 
 
 " Sir Edward Coke. B, 226. 
 
 " Holburn in 1637. "It appears that the first answer was, that the laws should be put in execution; 
 yet in the close there is put in a saving of the prerogative: but this Answere did not satisfy, and therefore 
 there was a general answer Soit droit fait. But now what was granted by the la«t Answer more than the 
 former, only that the law was left more absolute." State Trials 3:999-1000. 
 
 Heath in 1629. "A petition in parliament is not a law, yet it is for the honour and dignity of the 
 King to observe and keep it faithfully." Ibid., 281. 
 
THE PETITION OF RIGHT 55 
 
 to the bill of subsidy." The reason that Alford advanced for this was 
 that the Parliament Rolls were not published ;^^ by this means the King's 
 promise would become known to the whole country. Ball pointed out that 
 they would be following an illustrious example: "Soe it was in magna 
 Charta and 28 of Ed. 3."^^ On June 9, the committee for the preamble of 
 the subsidy bill reported that they favored publishing the Petition in that 
 way only if another plan they had to propose failed. Coke, in his report, 
 then added that if they inserted it in the bill they would not "enacte it."^" 
 Perhaps some had thought that in this way they might still make it a 
 binding law. But the interest to us is that there would have been no 
 point to this remark if the Petition had already been enacted. 
 
 The better plan advocated by the committee was "that this petition 
 and answer bee published and to that end the Lords are to be mooved that 
 it bee entred in the Parliament Roll,^^ and because perhaps that Roll 
 may bee lost, seeing it is soe honourable for the King, to moove the King 
 that it may be entred in the Courts of Justice at Westminster and allsoe 
 that it bee printed."^^ The King^^ ^nd Lords^^ having agreed to all parts 
 of this proposal the next question was how it should be done? What 
 seemed to worry them was how to get it entered in the Courts at West- 
 minster. ''It must be done," explained Coke, "by the King's writt re- 
 citing the peticion and commanding the judges to inroll this."^^ Later Sel- 
 den gave the proceeding in greater detail, ^^ the Lord Keeper reported the 
 Commons' wish to the Lords, and the Lords gave the order;" from an 
 
 " Alford. M. 150; G, 3:58; Ball, M, 151 verso; G, 3:66. Phelips, B. 143 verso. " G, 3:59. 
 
 " B, 141 verso. Truly the bargain idea was as prevalent in 1628 as it had ever been when the King 
 was forced to confirm the Great Charter. 
 
 80 B, 231 verso. 
 
 81 No particular significance can be attached to the fact that the Petition of Right was entered in the 
 Parliament Roll; it does not help to explain its nature. With the fourth year of Henry VII the Statute Roll 
 ceased. The need for it had ceased long before when bills took the place of petitions. From that time the 
 Parliament Roll may be considered as having taken its place. But the latter kept its informal character 
 through the Session of 1628; that is it still contained other proceedings as well as public and private bills. 
 The Petition of Right, as printed in the Statutes of the Realme, is taken from the Parliament Roll. But 
 it was not included there among either the public or private acts; instead it is placed first in a class by 
 itself. The editors of the earliest printed editions of the statutes recognized this difference by not number- 
 ing the Petition; they put it first but numbered the next chapter 'I'. Later editors failing to see the sig- 
 nificance, numbered the Petition '(I)' and the next chapter 'I(II)'. Statutes of the Realme. Introduction. 
 
 82 M, 230. 
 
 8^ The King's consent was delivered only by word of mouth, being given by Sir Humphrey May. 
 C.J. 1:910; B, 232; M, 229 verso. 
 
 84 L.J. 3:851. 85 G, 5:149. 86 M, 260 verso; B, 270 verso. 
 
 8' C.J., 1:915. It is very doubtful whether this order was ever carried out. The fact that it was 
 left to Attorney Heath to see that it was done is sufficient to raise one's suspicions. That the Lords did 
 nothing to enforce the order is suggested from the fact that the order is not recorded in their Journal. 
 That the Commons themselves had doubts is seen from the committee appointed at the opening of the 
 next Session "to search, whether the Petition of Right, and his Majesty's Answer thereunto, be enrolled 
 in the Parliament Roll, and in the Courts at Westminster, according to his Majesty's Pleasure, signified 
 the last Session" (C.J. 1:920). Though this committee met {Ibid., 921, 923, 924), there is no record of 
 its having made any report. Probably this committee was suppressed as was that for investigating viola- 
 tions of the Petition. Added to this we have the negative evidence that the Petition is not to be found in 
 either the Rolls Chapel or Petty Bag series of Certiorai bundles for this period. 
 
56 FRANCES HELEN RELF 
 
 examination of all these accotints there can be no doubt as to what the pro- 
 ceeding was. By the writ of Certiorari addressed to the Clerk of Parlia- 
 ment, the Petition would be certified into Chancery and from there it- 
 would be sent by a Mittimus into the other courts. 
 
 This was an ordinary procedure with private acts which were "not en- 
 rolled without special suit, as general acts are."^^ And the private act 
 "is thereby made a record and bindeth the party whom it concemeth and 
 all others. "^^ But the point of interest in connection with the Petition is 
 that in having it certified the Commons were not following the precedent 
 of procedure for a private bill. As was suggested above, the Commons 
 were in a good deal of doubt as to how they should proceed to get the Peti- 
 tion enrolled in the Courts. A committee of the most eminent lawyers 
 was appointed to search for precedents.^" Doubt was expressed as to 
 whether the Lords woiild agree to the procedure they proposed. ^^ The 
 first precedent which was advanced by Coke was, "20 Ed 3, Lime post 
 jest Epephaniae magnum placitum inter Gilb [ert] Clar Erie of Gloster and 
 Bohum Erie of Essex." Coke explained that "when judjment was given 
 betwixt them, both were fined : and by the King's writt the Judgment was 
 sent to the 3 benches to be enrolled there. "^^ This same precedent was 
 quoted in 1637 by Littleton, then the King's soUicitor-general, as au- 
 thority for the King's writ to collect shipmoney ; for that case in 1292, he 
 said, proved "the king is 'Recordum superlativum et praeexcellens'."^^ For 
 his second precedent Coke cited "28 E. 1 rot. clausa memb. 2. There is a 
 writt to inroll Magna Charta, and to see it observed. "^^ Neither of these 
 was a legislative act; more than that, each was the act of the King without 
 the Lords and Commons. 
 
 Coke very significantly added: "This Peticion is a branch of Magna 
 Carta: and fitt to follow that Presedent."^^ And whnt Vinfl -^f nn a^t^ 
 _Ji ad a confirmation of Magna Carta be en? NptJ^egislative_certainly, but 
 a promise on tjie parjb^the Ki ng that the law should^bfi^put^ execution. 
 This is the way, at the close of the Session, the King referred to his act,, 
 using such phrases as "what I granted in your petition" and "anything I 
 have promised you."^^ A'yearTater Heath said of it: "No other con- 
 struction can~BFlnade of the Petition, than to take it as a confirmation of 
 the ancient liberties and rights of the subjects."" In 1637 Judge Hol- 
 
 «s Lord Hobart in 1617. Quoted in Statutes of the Realm. Intro, p. 35, note 5. 
 
 '• Elysinge. MS Cott Titus B.V., p. 69. Quoted in the same note as above. See also the pamphlet 
 Privileges and Practices of Parliament, 1628. 
 
 •"C.J. 1:912. 
 
 " Eliot: "Lett us send to the lords about sending of it in to the Courts of Westminster; and if 
 they make any doubt, that we have a conference about the manner." M, 260 verso. 
 
 " G, 5:149. See also M, 239 verso. 
 
 •5 State Trials 3:924. '» M, 239 verso. 
 
 » G, 5:150. »8 L.J. 3:879. «' State Trials 3:281. 
 
THE PETITION OF RIGHT 57 
 
 bom made the same assertion that the King promised "the laws should be 
 put in execution."'^ 
 
 If this was the case what had the Commons gained by refusing a bare 
 confirmation, by going a weaker way in order to include their explanation ? 
 The interpretation of the Petition by the judges shows the value of^stating 
 the particular grievances. The two most important cases are the pro- 
 ceedings against the members of the House of Commons in 1629 and the 
 shipmoney case in 1637. In both the Petition held good as the King's 
 promise for the redress of the particular grievances against which protest 
 had been made, but for anything more than that the judges went back to 
 the laws cited in the Petition. That it was no longer possible to imprison 
 a man without showing any cause whatever, was determined by the Peti- 
 tion; but it did not determine whether the cause shown in 1629 was one "to 
 which they might make answere according to the lawe." So in 1637 it did 
 not determine whether ship money was against "the lawes and free cus- 
 tomes of the realme." As a practical measure its ejficacy was limited to 
 the grievances complained of; the general statements were not binding on 
 the judges. 
 
 The blame for this narrow interpretatiori of the Petition has been laid 
 upon the judges. "They refused," says Gardiner, "to be arbitrators be- 
 tween the King and the nation. . . . All that had been gained by the 
 Petition of Right seemed to be lost in an instant. "^^ But had not the judges 
 done all that they could do, all that the Commons' lawyers had claimed 
 they could do? As a petition of right (or, for that matter, as a private 
 act), the Petition could cover only the particular grievances enumerated. 
 By his answer, the King pronounced that these particular practices were 
 illegal. ^°*' But before giving his answer, he took special pains to find out 
 from the judges whether they, as well as the Houses of Parliament, con- 
 sidered them as illegal. ^°^ The Commons had, indeed, been forced to a com- 
 promise. Their resolutions had stated the general principles. The King's 
 promise, as contained in his message, had been top. YSglls to assure the en- 
 forcement ofjthose.^rincigles. So as a middle way the Commons chose to 
 have" declared illegal specific violations of those principles. In this way they 
 gained temporary relief for the country. But that was not all they had done. 
 
 '^ Ibid., 999. Sir Robert Berkley: that the Petition "only confirmed the ancient liberties." Ibid., 
 1109. 
 
 In his ConstituUonal History, Brodie says "our ancestors . . . deemed it merely a confirmation of 
 the acknowledged law of the land, which had been so grossly violated" (1:475). 
 
 "7:123. 
 
 100 Dicey says of the Petition that it was a "judicial condemnation of claims or practices on the 
 part of the Crown which are thereby pronounced illegal" (p. 195, n.l). 
 
 io» In 1637 Judge Crook said: "it [the Petition] was referred to my lords the judges (most whereof 
 are here) whether this law doth give more than formerly from the king. And we were all of opinion, 
 that this law did give no more than what was formerly, and was only but a reviving of the ancient privi- 
 leges of the subject; it added no more, but only revived what was formerly granted." State Trials 3:1134. 
 
58 FRANCES HELEN RELF 
 
 In spite of the fact that they could not be enforced, it is the general 
 principles enunciated in the Petition which make it a mile stone in the 
 development of constitutional government. Dicey makes the statement 
 that "there is no difficulty, and there is often very little gain, in declaring 
 the existence of a right to personal liberty. The true diffictdty is to se- 
 cure enforcement." For this reason he would place the Habeas Corpus 
 Acts above the Petition of Right. ^"^ This is certainly to depreciate the 
 work of the men of 1628 who only with the greatest "difficulty" succeeded 
 in placing on record their declaration of "the existence of a right." For 
 that was their great work, that they succeeded in making th e Petition _ a 
 perma nent reco rd, that they succeeded in having that record spread broad- 
 cast over the country. It performed its mission by educating public 
 opinion, by keeping the issue clear as between King and Parliament. 
 Could the enforcing laws have followed if it had not paved the way? 
 
 iM The Law of the Conslitution 217. 
 
APPENDICES 
 

APPENDIX A 
 
 THE COMMONS' RESOLUTIONS, WITH NOTES SHOWING 
 THE ALTERATIONS MADE IN THE HOUSE 
 
 l.^ Resolved, upon Question, That no free Man- ought to be committed, or de- 
 tained in Prison, or otherwise restrained,^ by the Command of the King, or the Privy- 
 Council,* or any other, unless some Cause of the Commitment, Detainer, or Restraint 
 be expressed,* for which, by Law, he ought to be committed, detained, or restrained.* 
 
 2. Resolved upon Question, That the Writ of Habeas Corpus'' may not be de- 
 nied, but ought to be granted to every Man^ that is committed, or detained in Prison, 
 or otherwise restrained,^ though it be by Command of the King, the Privy Coun- 
 cil, or any other, he praying the same. 
 
 3. Resolved, upon Question, That if a free Man be committed, or detained in 
 Prison, or otherwise restrained, by the Command of the King, the Privy Council,, 
 or any other, no Cause of such Commitment, Detainer, or Restraint, being expressed, 
 for which, by Law, he ought to be committed, detained, or restrained, and the same 
 be returned upon an Habeas Corpus, granted for the said Party, that then he ought 
 to be delivered, or bailed. i" 
 
 4.^^ Resolved, upon Question, That the ancient and undoubted Right of every 
 free Man is, that he hath a full and absolute Property in his Goods and Estate ;i^ and. 
 
 1 The readings on the first three resolutions are given only in H, 2313:43-44. 
 
 2 First reading. Thai no subject being a free man. 
 Second reading, That no free man of England. 
 
 ' First, committed or detained in prison. 
 
 Second, committed, restrained, or detained in prison. 
 < First, the King or the Council, 
 
 * First, without a special cause of the Commitment be expressed. 
 ' First, besides the command. 
 
 This last change was made at the suggestion of Sir Robert Cotton who maintained "that no com- 
 mitment by the command of the King, the Council, or any other [without the cause being expressed] is 
 a just cause of commitment." 
 
 ' First, A Habeas Corpus. ' First, every free man. 
 
 * "Sir Nath. Rich would have otherwise restrained left out, because if a man be committed to the 
 custody of a pursevant or any other man; he then saw not to whom the writ of Habeas Corpus should be 
 directed, which used to be directed to the keeper of some gaol." 
 
 1° First reading. // upon a writ of Habeas Corpus granted the returne of the cause of commitment 
 or detention in prison or other restraint of liberty of the person, for whom the said warrant is granted, 
 be the command of the King, or the Council, or any other, which is no sufficient cause in Law, and the 
 same be returned upon a Habeas Corpus granted for the party that then he ought to be delivered or bailed. 
 
 " The fourth resolution was the first decided upon in Committee. When, however, it was later- 
 brought into the House with the other three there was objection made to it, due largely, no doubt, to the 
 fact that its phrasing was not in harmony with that of the others. After some debate upon the wording, 
 it was recommitted and later reported in the form given in the Journal. Both Borlase (21 verso) and 
 Harl. 2313 (p. 7) give it as agreed to on March 26. The later account gives the changes suggested on 
 April 3 as also the final form. 
 
 '2 First reading March 26. That the subject of England hath such propriety and right in his own good^ 
 according to ancient custom. B, 21 verso. 
 
 Mr. Selden (April 3). That instead of subject of England, they should put in free man. H, 2313:56. 
 
62 APPENDIX 
 
 that no Tax, Tallage, Loan, Benevolence, or other like Charge,^' ought to be com- 
 manded or levied by the King, or any of his Ministers, without common Assent by 
 Act of Parliament." C.J. 1:878-879. 
 
 -' First reading (March 26). no levy nor tax. B, 21 verso. 
 
 Second reading (March 26). charge added. H, 2313:7. 
 
 Debate on April 3. H, 2313:56. 
 
 Mr. Selden. To leave out the word charge. 
 
 Sir Ed. Coke. To put in the word loan. 
 
 Sir Na. Rich, loan by authority. 
 
 Sir Ra. Hopton. tax. tallage, or coercive loan. 
 ** First reading (March 26). 
 
 without his consent in Parliament. H, 2313:7. 
 
 without Act of Parliament. B, 21 verso. 
 
 Debate on April 3. H. 2313:56. 
 
 Sir Th. Hobby. To leave out the word Parliament. 
 
 Serj. Hoskins. without his own consent otherwise than by Act of Parliament. 
 
 Mr. Pine, otherwise than by the common law of England, or an Act of Parliament. 
 
APPENDIX B 
 THE BILL OF RIGHT 
 
 An Act for the better securinge of every free man touching the proprietie of his 
 goods and Hbertie of his person. 
 
 Whereas it is declared and enacted by Magna Charta that noe free man is to bee 
 convicted, destroyed, etc., and whereas by a statute made in E:L called de iallagio 
 non concedendo: And whereas by the Parliament 5 E: 3 and 14 E: 3 and 29 E: 3 etc., 
 And whereas the said great Charter was confirmed and that the other laws etc. Be 
 it enacted that Magna Charta and the same acts of explanation and other the Acts bee 
 putt in due execution and that all judgments, awards, and rules given are [or] to be 
 given to the contrarie shall bee voyd. And whereas by the common lawe and stat- 
 utes it appeares that noe free man ought to bee committed by Command of the King, 
 etc. ; and if anie free man bee soe committed and the same returned uppon an habeas 
 Corpus, hee ought to bee delivered or bailed. Bee it now enacted that noe free man 
 shall bee committed by the command of the King or the privie counsell but the cause 
 ought to bee expressed and the same beeing returned uppon an habeas Corpus, hee 
 shall bee delivered or bailed; and whereas by the common lawe and statutes every free 
 man hath a proprietie in his goods and estate as no taxe, tallage, etc.. Bee it now enacted 
 that noe taxe, tallage, loane, shall be levied, etc. by the King or anie minister without 
 act of parliament and that none bee compelled to receive anie soldier into his house 
 against his will, etc. (M 137).i 
 
 ' Because of the nature of the source, it is impossible to say whether this bill is the first form, as 
 presented by Sir Edward Coke on April 29, or its form after it was altered on the next day so as to agree 
 "as neere to the words of the Stattutes as may bee" (B, 120 verso). In its recitation of the list of statutes 
 it is both incomplete and faulty. The incompleteness is seen from comparing the list with that given 
 by Sir Edward in his report on the 29th and the lists given in Grosvenor and H, 5324 on the 30th. From 
 the same sources it is evident that 29 E:3 should read 28 E. 3. These errors make one question the value 
 of the whole document. 
 
APPENDIX C 
 
 PROPOSED ANSWERS TO THE PETITION OF RIGHT 
 
 To which petition 
 
 Our soveraign Lord the Kinge, in full parliament, makes this answere 
 
 Since both the Lords and Commons have severally with dutifuU respect to us, de- 
 clared ther intentions, not to lessen our just powre or prerogative, as ther Soveraign 
 
 We doe as freely declare our clere intention noe way to impeach the just liberty 
 of our subjects. 
 
 And therefore this right understandinge beinge nowe soe happily setled betwene 
 us and our people, which we trust shall ever continue 
 
 We doe freely graunt, that this petition, shall in all points be duly observed, as 
 is desired. 
 
 Or thus 
 
 We doe grant and declare, that all things conteyned in this petition be done and 
 observed, accordinge to the Lawes and ancient coustomes of this Land, for which noe 
 man hereafter shall have cause to complaine. 
 
 Or thus 
 
 That noe man shall be compelled by imprisonment or otherwise, to contribute 
 to Loans, benevolence, or other like charges, but by common consent in parliament. 
 
 That when any man shall be committed or otherwise restreyned, the true cause 
 thereof shall be expressed uppon the committment, or at least uppon the habeas Corpus, 
 shalbe retourned or signified to the Judge, to the ende they may proceed accordinge 
 to the Lawe. 
 
 That noe souldyers or marriners gathered together for the Kings service, shall be 
 billetted or sojourned but in place convenient and neer to ther Rendevous: and then 
 but for such time as shall be necessary for the publicke service, during which time, 
 theyr enterteynment shall be justly payd for, and themselves orderly governed. 
 
 That noe Commission of Martiall Lawe, shall be awarded or exercised in times 
 of peace: Nor in times of warr or preparations for warr, but uppon such only as 
 are in the Kings pay, for his Armys or Fleets: and yet they shall not therby be exempt 
 from the ordinary Justice of the Kingdom. 
 
 AU thes things, the Kinge himself will religiously observe, accordinge to his oath 
 taken at his coronation And will cause all his officers and Ministers to observe the same, 
 according to the Lawes and Statutes of the Land. 
 
 And if anything have been done to the contrary it shall not hereafter be drawen 
 into consequence or example. 
 
 And nowe ther beinge a Right understanding betwene the King and his people: 
 he doth assure them in verbo regio. That as the Lords and Commons have severally 
 by ther Speakers, expressed ther duitifuU respecte to him, that they have noe inten- 
 tion to lessen the just prerogative of ther Soveraign: Soe the Kinge clerely and freely 
 expresseth himself, that neather in thes particulars nor in any other he will impeach 
 the just libertys of his subjects (St. P. Dom. Chas. I, vol. 105, no. 95). 
 
 To which petition 
 
 Our Soveraign Lord the Kinge, in full parliament Aunswereth thus 
 
 1. That noe man shall be compelled, to make or yeld, any Loane, Benevolence, 
 or such like charg, but by common consent in parliament. 
 
APPENDIX 65 
 
 2. That noe free man shall be committed, or deteyned but the true cause therof 
 shall be expressed accordinge to the Lawes. 
 
 3. That noe souldyers or mariners shall be compelled to be sojourned, to the 
 burthen of the people, and such as are nowe soe sojourned shall be speedily removed: 
 as is desired. 
 
 4. That noe Commissions of Martiall Lawe shall be executed within the Land in 
 times of peace, and such as are graunted already, shalbe forthwith revoked. 
 
 5. That if any thing hath been done to the contrary it shall not hereafter be 
 drawen into consequence or example. 
 
 6. That the King doth hereby declare, that all his officers and ministers in the 
 things aforesaid shall serve him according to the lawes and statutes of this Relme, as 
 they tender the honor of the King and the prosperity of the Kingdom. 
 
 And if his Majesty shall soe thinke fitt; eather by himself: or by my Lord 
 Keeper he may be pleased 
 
 To thanke both houses, for ther respectfuU carriage towards him; that by ther 
 severall Speakers, they have expressed themselves, that they have noe intention to 
 lessen his Majestys just power or prerogative. 
 
 And that his Majesty againe on his part doth acknowledge that he hath noe 
 powre but from God; nor will extend his prerogative beyond the just bounds therof, 
 nor use it to other purpose but for the good government, protection and safety of 
 his people. 
 
 To take Knowledge, with approbation, of the moderation of both houses, that 
 they have not in this parliament, fallen uppon personal questions, which might have 
 diverted them from matters of realitye. 
 
 And that his Majesty, taking Knowledge, that in all times somethings doe and 
 will happen which may be amended, he will take such Knowledge of things amiss, 
 for the future; that his people shall discerne his care to be such for the governing of 
 the great affaires of the Kingdome as they shall have noe just cause of complaint. 
 
 And that his Majesty will manifest his desire unto them all: That ther being 
 nowe a right understanding betwene him and his people, which may remove all jel- 
 ousy and misundertakings on eather side 
 
 They will confide on him and trust to his Justice, and providence for ther safetye 
 and prosperitye: As he will repose himself with confidence uppon ther loyalty and 
 Loves; and shall willingly doe nothing but what shall tend to the honor, safetye, and 
 happiness, of the Church and Commonwealth {Ibid., no. 97). 
 
 To which petition preferred to the Lords and Commons our soveraign Lord the 
 King, in full parliament, awnswereth thus 
 
 1. That noe man shall be compelled by imprisonment or other restraint, to make 
 or yeld any guift, loan. Benevolence or other like taxe or charge, but by common 
 consent of parliament: nor shall otherwise be molested or disquieted concerning the 
 same or for refusall thereof. 
 
 2. That noe man shall be imprisoned or restrained by us or our privye counsell, 
 for any cause which, in our conscience, doth not concerne the publike good and safety 
 of us and our people, and in all cases of this nature, we shall readily and really expresse 
 the true cause of the committment, as soon as with safety to the cause it is fitt to be 
 disclosed and expressed and that in all causes criminall of ordinary Jurisdiction, our 
 Judges shall proceed to the deliverance or baylement of the prisoner, according to the 
 known and ordinary rules of the Lawes of the land, and in cases of extraordinary 
 nature and consequence (when they shall happen) we will proceed with all conve- 
 
66 APPENDIX 
 
 nient expedition, and will never use our powre but with that moderation as shall 
 be for the publike good and safety of our people. 
 
 3. That the souldyers and mariners nowe billetted in severall places, shall with 
 all speed be disposed of and removed as is desired And from henceforth noe souldyers 
 or marriners shall be soe billetted, but in convenient places neer the ports, wher an 
 Army or Fleet is to sett forth or retourn holme for the publike service, and for such 
 time only as the necessity of the service shall require; for which reasonable allowaunce 
 shalbe payd; during which times and uppon which occasions, they shall bee soe or- 
 dred and governed, as that hereafter they shall be noe burthen or grievaunce to the 
 people. 
 
 4. That the Commissions for Martiall Lawe complained of shall be, forthwith 
 revoked and adnuUed; and noe Commissions of like nature shall issue forth hereafter 
 to be executed within the land in times of peace, but for the necessary discipline of 
 the souldyers and marriners which shall be pressed and gathered togeather for the 
 Klinges service, and to be exercised uppon them only; and yet shall noe way extend 
 to priviledge them from the ordinarye Justice of the Kingdome. 
 
 5. That if any thing have been done to the contrarye, to the prejudice of the 
 people in any of thes things, it shall not be drawn into consequence or example. 
 
 6. And lastly his Majesty is gratiously pleased and he doth hereby declare his 
 royall pleasure to be, that all his officers and ministers in all the things aforesaid, shall 
 serve him according to the Lawes and customes of this Relme, as they tender the 
 honor of the Kinge, and prosperity of the Kingdome {Ibid., no. 98). 
 
 To which Petition preferred by the Lords and Commons 
 
 Our Soveraigne Lord the Kinge in full parliament: 
 Awnswereth thus 
 
 1. That noe man hereafter shalbe compelled by imprisonment or other restreint 
 to make or yeld any guift. Loan, Benevolence, or such like taxe or charge; but by 
 common consent in parliament And that none shall be called to make such oath, or to 
 give attendaunce, or be confined, or otherwise molested or disquieted, concerning the 
 same, or for refusall therof. 
 
 2. That noe free man shall be committed or deteyned in prison, but accordinge 
 to the Lawes, and customes of the Kingdom. 
 
 3. That the souldyers and mariners nowe billetted and sojourned in severall 
 parts and places, shall forthwith be removed and discharged, and the people shall not 
 have cause of greivaunce in this particuler in time to come. 
 
 4. That the Commissions alreadye graunted for martiall lawe, to be executed 
 within the land shall forthwith be revoked and adnulled; And noe Commissions of 
 like nature shall issue forth hereafter, to be exercised within the land in times of peace 
 but uppon such as are in his Majestys pay and they not to be therby exempt from 
 ordinary Justice. 
 
 5. That if any thing hath been done to the contrary, to the prejudice of the people 
 in any of thes things, it shall not be drawne into consequence or example. 
 
 6. And lastly his gratious will and pleasure is, and he doth hereby declare his 
 royall pleasure to be, that all his officers and ministers, in all the things aforesaid 
 shall serve him, accordinge to the Laws and coustomes of this Relme, as they 
 tended the honor of the King and the prosperitye of the Kingdome. 
 
APPENDIX 67 
 
 { On dorse] The King willeth that right be done according to the lawes and cous- 
 tomes of the Relme. And that the Statutes be put in due execution 
 that the subjects may have noe excuse to complaine of any wrong or 
 oppressions contrary to ther just rights and liberty es. 
 To the prosecution wherof he holds himself in Justice obliged, as of his 
 prerogative. 
 
 {Endorsed] Awnswere to the petition by the King in parliament {Ibid., no. 99). 
 
APPENDIX D 
 BIBLIOGRAPHICAL NOTES FOR THE PARLIAMENT OF 1628 
 
 I. Sources 
 A . Documents 
 
 (1). Petition of Right. Statutes of the Realm, 6:23-24. 
 (2). Drafts of a first answer. St. P.Dom. cv,, 95, 97, 98, 99. 
 
 B. Records of Proceedings and Debates 
 
 1. OFFICIAL 
 
 Journals of the House of Lords. 
 
 This was the official record not only of what happened in the upper House but 
 of all matters which concerned the Parliament as a whole. For this subject its par- 
 ticular value is to be found in the full accounts it gives of the conferences between 
 the Houses. 
 
 2. QUASI-OFFICIAL 
 
 (1). Journals of the House of Commons. 
 
 The journal kept by the clerk of the lower House was not at that time deemed 
 official. As printed it gives the appearance of being a much more formal document 
 than it really was. The original manuscript indicates at a glance what the journal 
 was, the fragmentary notes of the clerk jotted down during the proceedings.^ 
 (2). Separate speeches and reports given out by the clerk. 
 
 It was the custom at that time for the clerk to sell to the members copies of the 
 King's messages, and of formal reports or speeches when so ordered by the House. 
 These copies, and copies of copies, are still to be found in great numbers, separately 
 and in collections. In the collections are also copies of speeches which were doubt- 
 less given out by the members themselves. It is impossible to draw a sharp line be- 
 tween the two. All the originals from which the clerk made copies were undoubtedly 
 preserved at the time by him, but only the Journals have come down to us. The 
 Journal itself is therefore the only clue as to which were official separates. It would, 
 I think, be safe to exclude from that list all speeches by members made in the course 
 of debate. There are many of these collections of speeches in manuscript. The 
 only one in print is Ephemeris Parliamentaria, edited by Thomas Fuller, and printed 
 in 1654. 
 
 3. UNOFFICIAL 
 
 a. Public 
 
 During this period the circulation of parliamentary news was officially forbidden; 
 
 yet, so slack was the enforcement of this command that little happened within the 
 
 Houses that was not immediately known by the Court on the one hand, and the Country 
 
 on the other.2 But such information was necessarily circulated in manuscript. All 
 
 1 For a full account of the nature of the Commons' Journal, see the introduction to Notestein and 
 Relf, Commons Debates 16Z9. 
 
 2 When the King's propositions for supply were brought into the House and it was decided that 
 every man should have a copy. Secretary Coke moved that none be distributed outside of the House. There 
 was considerable opposition to this motion by members who wished to consult with their constituents. 
 B, 19 verso-20\ H, 2313:3; N, 7. 
 
APPENDIX 69 
 
 that were printed at the time were a few separates authorized by the King.' Besides 
 the many copies of separates, there are to be found in manuscript copies of proceed- 
 ings which bear a marked resemblance to the news-letter of the Civil War period. 
 Of these news-letters there are two, the True Relation and the Borlase account. 
 
 (1) The True Relation. 
 
 This news-letter is made up of a combination of separates, both official and pri- 
 vate, and of narrative consisting mostly of debate and motions. The many copies 
 of it which are to be found differ from each other both in the number of separates 
 and in the fullness of the narrative, suggesting that its completest form was the result 
 of a gradual accumulation from different sources. The final compilation could not 
 have been made until after the Session was over, though probably from fragments 
 given out before.^ Of the many copies I have attempted to make no complete list, 
 nor have I tried to make a classification. It is sufficient to note some of the copies 
 of the most complete form, all of which are identical except for copyists' errors. 
 One of them is to be found in the Cambridge Library (Rawl. A, 78) ; another in the 
 Petyt Collection in the Inner Temple (537:26); a third belongs to the Marquis of 
 Bute; a fourth to the Massachusetts Historical Society; and a fifth is among the 
 Harleian MSS (4771). This last is not complete, wanting any narrative after May 
 26. There is no good copy of the True Relation for this Session in print. That in 
 Rushworth's Collections (vol. I)^ is very fragmentary. The editor of the old Parlia- 
 mentary History^ has used Rushworth as a basis and added to it from any separates 
 he could pick up, some from Ephemeris Parlianientaria, some from a manuscript 
 which had originally belonged to a member of this Parliament,^ some from a collection 
 of printed pamphlets.* For the debate he obtained additional material for June 5 
 and 7 from a manuscript in the Harleian Collection. 
 
 The manuscript which I have used is that belonging to the Massachusetts His- 
 torical Society. It has been in their possession since 1791, when it was presented to 
 them by Thomas Wallcut, who bought it in the previous year at the sale of L. Byles. 
 To judge from the handwriting it is a contemporary copy. More than that of its 
 history is unknown. Probably it was brought to America by one of the early mem- 
 bers of the Massachusetts Bay Company. If so, it becomes an interesting illustra- 
 tion of the close connection between the history of our own country and that of the 
 early Parliaments of Charles I. 
 
 (2) The Borlase MS (Stowe 366). 
 
 This is another account of the Session which was written for circulation. It 
 has every appearance of having been a daily news-letter. The manuscript is in the 
 handwriting peculiar to the clerks of that time, it changes from time to time, as often 
 as not in the middle of a day. Scattered through the text are little notes of descrip- 
 tion or explanation which go far to prove that the letters were written for circulation 
 
 » The editor of the old Patliamenlry History refers to a collection of printed pamphlets made by 
 Sir John Goodrich (7:403). A few such separates may be found in the Bodleian Library. 
 
 * For a full account of the nature of the True Relation see the introduction to Notestein and Relf, 
 Commons Debates 1629. For that Session a detailed comparison was made of all the copies in order not only to 
 give the best possible text but also in the hope of discovering their relation to each other, and the character 
 of the whole. The different copies vary as much in their titles as in any other particular. We chose 
 True Relation as being the most distinctive of the many given. Coming then to the same kind of account 
 for the earlier Session, and finding again a great diversity of titles, it seems the natural thing to refer to 
 them, too, as the True Relation. 
 
 5 Edition of 1721. 
 
 ' This collection of source material was published in 1751. The part pertaining to this Session is 
 to be found in volumes vii and viii. 
 
 * Sir John Napier MS. 8 See above note 3. 
 
70 APPENDIX 
 
 outside of the House. This is confirmed by the style which is much more entertain- 
 ing than that of the private diaries; the humorous incidents are made the most of.* 
 There can be no doubt that it was issued daily; for, though the leaves are now care- 
 fully pressed out and bound together, one can easily see that those for each day had 
 been folded together, once each way, and then the date written across the outside. 
 The grime on the outside indicates either that they were handled a great deal, or else 
 not bound for some time after. Bound with the debates are some separates. They 
 are never incorporated in the text as in the True Relation, a fact which brings out the 
 most marked difference between these two accounts both of which were written for 
 circulation. The True Relation was compiled after the separates were available; 
 this was issued daily, and the separates sent later as they were obtained. The Borlase 
 separates are not always on the same size paper as the daily proceedings, and each is 
 folded and tabulated by itself. There is no means of telling how wide a circulation 
 this news-letter had. The name on the title page of this copy, William Borlase, 
 Knight, indicates only the owner of the bound copy. He was a member of the Par- 
 liament of 1628. The only other copy of which I know is also in the Stowe Collec- 
 tion (367). It is in one handwriting throughout and was evidently made after the 
 end of the Session. It appears to be a copy of the Borlase MS made, perhaps, after 
 that had been bound. 
 
 b. Private 
 
 From what is known of the Parliaments of this time, it is probable that notes 
 of the proceedings were taken by many of the members. It can not be supposed 
 that nearly all of those written during this Session have yet been brought to light. 
 There are at present only four of which I know. 
 
 (1) Sir Richard Grosvenor. Notes of Proceedings (Library of Trinity College, 
 Dublin). 
 
 As it is now preserved this diary consists of four closely written note-books, the 
 contents of any one of which would fill a hundred printed pages of ordinary size. 
 They cover the proceedings from April 18 to the close of the Session. There was, 
 undoubtedly, a first book which is now missing.^" That the diary is by Sir Richard 
 Grosvenor, there can be no doubt. The writer's frequent reference to the committees 
 of which he was a member, as well as the scratchy notes he makes of his own speeches, 
 places this beyond question. This diary, more than any other account of the Ses- 
 sion, gives one the proper sense of proportion. It deals not alone with the debates 
 on "the great question," but with the other matters too, which were the subject of 
 discussion. Considering the number of speeches recorded it is the fullest account. 
 But a comparison with the other accounts proves that even it was not complete. 
 
 (2) Notes, by {Harl. 2313, 5324). 
 
 These are two finely written note-books; the first covers from March 26 through 
 April 28; the second begins with April 30, gives every day's proceedings through 
 
 •On May 31, when the Commons had been denied their Whitsuntide recess in the hopes that they 
 would finish their work on the bill of subsidy, there occurred a debate on the question whether Oxford 
 or Cambridge should be named first in the bill. Even the most prominent and serious minded of the 
 members acted like schoolboys deprived of a holiday. This debate is recorded only by this writer and 
 Grosvenor. A comparison of the two accounts is sufficient to make one realize the news-writer's ability 
 in working up farce-comedy. 
 
 "•At the beginning of the first book that we have, the author has written "2d booke." The loss 
 of the volume occurred previously to 1745 when the books were catalogued as they are now. They are 
 in one of the presses which contain Archbishop Ussher's manuscripts, and so probably belonged to him. 
 In the Life of Archbishop Ussher, published by Richard Parr in 1686, there is given an account of the dis- 
 posal of all of his manuscripts which were not in his own handwriting. After the death of the Archbishop 
 
APPENDIX 71 
 
 May 24, and then, after a few intervening blank pages, gives a fragment for June 4." 
 The only possible clue to authorship in the dairy itself, is in the handwriting. The 
 only external evidence is in the name plate to be found in the front of each book. 
 This reads: "John Duke of Newcastle, Marquis and Earle of Clare, Baron Haughton 
 of Haughton, and Knight of the Most Noble Order of the Garter." The titles be- 
 long to the 18th century family of Pelham-HoUes. There were both a Pelham and a 
 Holies in this Parliament. One would like to think that the diary was written by 
 the latter, the Denzil Holies who in the next Session made himself so well known. 
 The handwriting bears out this supposition to some extent. The writer, whoever 
 he was, had the rare talent of putting the gist of things into a few words. His nar- 
 rative is especially valuable for committee meetings, for some of which he gives the 
 only account. 
 
 (3) Nicholas's Notes. St.P.Dom. Chas. I. xcvii. 
 
 This diary covers practically the whole Session, but for the last month it is not 
 as satisfactory. Even for the earlier part it is far from complete. The writer seems 
 to have noted down only what especially interested him. Sir Edward Nicholas was 
 a prominent member of the court party. 
 
 (4) Lowther's Notes. Hist. MSB Comn., 13th Rep.App.7, pp. 33-60. 
 
 These notes cover but a short part of this Session, from June 4 to the end, but 
 for those days are quite full. Their chief contribution is the light they throw upon the 
 much disputed question of the relation of Tonnage and Poundage to the Petition of 
 Right. The editor of the Report, J. J. Cartwright, has worked out the authorship 
 from internal evidence. From a comparison of an entry for June 1, 1626, with an 
 entry for the same date in the Commons' Journal he has proved that the writer of 
 the Notes was a*"Mr. Lowther." But whether it was John or Richard it is impos- 
 sible to say. Neither one was a conspicuous member of this Parliament. 
 
 C. Contemporary Letters 
 
 (1) Sir Francis Nethersole to Elizabeth, Queen of Bohemia. 
 
 Cal.St.P.Dom. Charles 1. 1628-1629. 
 Nethersole was one of the King's most ardent supporters in the lower House. 
 His letters contain many valuable side-lights on the proceedings. 
 
 (2) Allured to Chamberiain, June 6. Rushworth I, 609-610. 
 
 This member's letter gives a vivid picture of the exciting events of June 5. 
 
 (3) Court and Times of Charles First, 2 vols. London 1848. 
 
 This work is made up of contemporary letters. The first volume contains many 
 that have a bearing on this Session. Perhaps their greatest contribution lies in this, — 
 that they reveal what was known by the general public at the time. 
 
 (4) Salvetti Correspondence. Hist. MSS Comn. 11th Rep.App.l. 
 
 These are the letters of the representative of the Grand Duke of Tuscany at 
 the English Court. They are not important for the information they contain for 
 they treat but briefly of the Parliamentary proceedings. Their interest lies chiefly 
 in the continental view-point of the writer as applied to the subjects which make up 
 the Petition of Right. 
 
 in 1655, they were bought from his daughter for the University of Dublin. Awaiting the building of a new- 
 Hall, they were kept at the Castle of Dublin, "where, the rooms where this treasure was kept being left 
 open, . . . most of the best manuscripts were stolen away." This probably accounts for our missing volume. 
 " The books are bound at the top instead of at the side and the author has written from both ends 
 towards the middle of the book. Sometimes he fills both sides of the leaf, sometimes only one, leaving 
 the other to be filled after turning the book over and beginning at the back. This confusion was not worked 
 out by whoever catalogued the books for the British Museum, with results that are very misleading to- 
 the student. In the catalogue the first book is dated correctly, but the second is put under the year 1640. 
 
72 APPENDIX 
 
 II. Secondary Works 
 
 A. Predecessors of Gardiner 
 
 It would be useless to enumerate all of these separately for, with three excep- 
 tions, they have been entirely superseded by Gardiner. They have based their 
 work on the collections of source material published in Rushworth's Collections and 
 the old Parliamentary History, which meant little more than a poor copy of the True 
 Relation. This, alone, is reason enough for excluding them. 
 
 (1) John Forster, Sir John Eliot, 2 vols. 2 ed. London 1872. (1 ed. 1864). 
 
 In this work, Forster devotes considerable space to the Parliament of 1628. In 
 addition to the regular sources he had access to Nethersole's letters and the Port 
 Eliot MSS. This collection contains all of Sir John Eliot's own manuscripts. For 
 this Session there are seven speeches by Eliot, a long report which has no bearing on 
 the Petition of Right, and brief memoranda by Eliot. Though much fuller than those 
 given anywhere else these copies of Eliot's speeches are not as valuable as Forster 
 would have us believe. In commenting on the May 23 speech, Gardiner pointed 
 out that, though in the main the speeches are correct, they "were subject to some 
 manipulation. "12 They do, indeed, give evidence of having been written up some 
 time after the speech had been delivered. In the light of the more abundant material 
 which is now accessible, they must be valued as contributions to the 17th century 
 oratory rather than as an actual part of the debates. Of more importance are Eliot's 
 brief memoranda with which Forster has made us acquainted. Forster's great con- 
 tribution, however, lies not in the new material he offers, but in his use of the old. He 
 was able, to a remarkable degree, to enter into the spirit of the time and of the men. 
 With that for a background, he presents a vivid and inspiring picture of stirring events. 
 But it is just here that one must be on his guard in reading Forster, for his imagina- 
 tion lured him on to fill in the gaps due to his all too scanty information. 
 
 (2) Henry Hallam, The Constitutional History of England from the accession of 
 Henry VII to the death of George II. 2 vols. 5 ed. 1846 (1st ed. 1827). 
 
 This constitutional history is carefully worked out from all the printed and manu- 
 script sources then available. Besides the meagerness of the material, the book 
 suffers from the author's acceptance of the misconceptions regarding Magna Carta 
 prevalent at that time. 
 
 (3) George Brodie, A Constitutional History of the British Empire from the Acces- 
 sion of Charles I to the Restoration: . . . including a particular examina- 
 tion of Mr. Hume's statements relative to the character of the English 
 government. 3 vols., new edition 1866. 
 
 Alone among the historians of his time, this writer made a sincere effort to find 
 out the contemporary opinion regarding the nature of the Petition of Right. 
 
 B. Samuel Raw son Gardiner 
 
 History of England 1603-1642. 10 vols. New Impression, 1901. 
 
 In his history, Gardiner has devoted two chapters to the proceedings of this 
 Session of Parliament. In source material, Gardiner's main advantage over his pred- 
 ecessors lay in his having access to two private diaries and to a copy of the best form 
 of the True Relation. The diaries he used were Nicholas's Notes and the first volume 
 of the Harleian.^^ From the small use that he made of the latter, one would judge 
 
 12 VI, 285 note. 
 
 " It was probably due to the poor cataloguing that Gardiner missed the second volume. 
 
,-^. 
 
 APPENDIX 73 
 
 that he did not value it as highly as it deserves. For the True Relation he used the 
 Harleian copy (4771), which failed him entirely for the last month. Nowhere, either 
 by comment or otherwise, does Gardiner show that he had any realization of the nature 
 of the manuscript he was using.'* He seems always to have thought of it as an orig- 
 inal instead as of a copy, no one knows how many times removed from the original, 
 and so necessarily full of copyists' errors. Some of his direct quotations reveal these 
 imperfections. A common error in all copied manuscripts is an omission due to the 
 repetition of a word or phrase. In the Bill of Right, as given by Gardiner, between 
 the word bailed and its repetition there are left out forty-three words.'^ Again, in a 
 speech which he gives in the text,'^ he has was able where another copy" has should 
 not be able, a reading which, from both the context and agreement with independent 
 sources, is undoubtedly the correct one. But about this same speech Gardiner has 
 made a much more serious blunder. In most of the manuscripts the names of the 
 speakers are given only in the margin. Unless the copyist was alert he sometimes 
 omitted a name. Then the speech appeared to be but an added paragraph to the one 
 preceding. The name of Sir Humphrey May, one of the King's firmest supporters, 
 was omitted from Gardiner's manuscript at this point. As a result Gardiner attrib- 
 utes to Wentworth, opinions which serve to line him up with the court party.'* 
 Considered as a narrative history, one can find but little to criticise in Gardiner's 
 work. He is a model of accuracy. Fuller information serves rather to amplify than 
 to correct. But after reading his account one feels lost in a mass of detail. There 
 is no summing up or explanation of events. One can not but admire the clever way 
 in which he often evades the direct issue. Since he was a writer of narrative history, 
 one can not demand that he should have settled all the constitutional questions in- 
 volved in the series of events. But had he himself been more conscious of the ques- 
 tions it would have affected his selection of facts. In reading the sources primarily 
 for the events of the day, it is extremely difficult to get below the surface. Until the 
 problem presents itself, one is apt to miss the word here and there that is the key to 
 its solution. Only in this way can one account for Gardiner's having neglected en- 
 tirely the investigation of the judges' decision in the 'late habeas corpus case,' or 
 the important debates which resulted in the change from a bill with a penalty to one 
 that was only explanatory. 
 
 C. Writers since Gardiner 
 
 Since Gardiner wrote his history no detailed study has been made of either the 
 Petition of Right or of this Session of Parliament. It has been touched upon in brief 
 narrative history, in text books of constitutional history, and in biographies. But in 
 no case has any attempt been made to get behind Gardiner. 
 
 1^ There is no reason why Gardiner should not have known the character of the manuscript. Even 
 if the many copies in the Harleian Collection had not suggested it to him, Bruce's article on the different 
 copies of the True Relation for 1629 (Archaeologia xxxviii, 237-245) should have called his attention to 
 the fact. 
 
 » VI, 265 note. 
 
 « Ibid., 285-286. 
 
 1' Mass. MS. 
 
 18 Gardiner made even greater use of this speech in an article entitled The Alleged Apostacy of Went- 
 worth (.Lord Strafford) (Quarterly Review for April, 1874, pp. 230-240). It becomes there the culmination 
 of his whole argument. "To quote Wentworth's own words, as we have done," he states, "is to show that 
 the principles which he defended were his own, the dangers against which he wished to provide were seen 
 in their entirety by no eye but his, and the remedies which he recommended were also his own. He could 
 not therefore have apostasized from opinions which he only very partially shared" (p. 239). 
 
I 
 
 74 APPENDIX 
 
 BOOKS TO WHICH REFERENCE HAS BEEN MADE IN THE TEXT OR FOOTNOTES 
 
 ARE AS FOLLOWS: 
 
 Anson, Sir William, Law and Custom of the Constitution. 2 ed. 1892. 
 
 Clifford, Frederick, A History of Private Bill Legislation. 2 vols. 1885. 
 
 Cobbett's Complete Collection of State Trials. Printed by T. C. Hansard, 1809. 
 
 Crawford, C. C, The Writ of Habeas Corpus. American Law Review 42:488. 
 
 D'Ewes, Sir Simonds, Journal of all the Parliaments of Queen Elizabeth, 1682. 
 
 Dicey, A. V., The Law of the Constitution. 7 ed. 1908. 
 
 Elsynge, Henry, The Manner of Holding Parliaments. 1768. 
 
 Gneist, Rudolph, History of the English Constitution. 2 vols. Trans, by P. A. 
 
 Ash worth. 2 ed. 1889. 
 Hale, Sir Matthew, Pleas of the Crown. 2 vols. 1 Am. ed. 1847. 
 Jenks, Edward, The Story of the Habeas Corpus, Law Quarterly Review 18:64. 
 Mcllwain, C. H., The High Court of Parliament. 1910. 
 Maitland, F. W. (ed.). Records of the Parliament Holden at Westminster 1305. Rolls 
 
 Series 1893. 
 May, Sir Erskine, Parliamentary Practice. 10 ed. 1893. 
 The Proceedings and Debates of the House of Commons in 1620 and 1621. 2 vols. 
 
 1766. 
 Privileges and Practice of Parliaments (pamphlet). 1628. 
 Statutes of the Realm. 9 vols. 1810. 
 Stephen, Sir James Fitzjames, A History of the Criminal Law of England. 3 vols. 
 
 1883. 
 Stubbs, William, The Constitutional History of England. 3 vols. 4 ed. 1890. 
 Taswell-Langmead, T. P., EngUsh Constitutional History. 7 ed. 1911. 
 
 
\y. 
 
1 
 
 STUDIES IN THE BIOLOGICAL SCIENCES 
 
 1. Herbert G. Lampson, A Study on the Spread of Tuberculosis in Families. 
 1913. $0.50. 
 
 2. Julius V. Hofman, The Importance of Seed Characteristics in the Natural 
 Reproduction of Coniferous Forests. In press. 
 
 STUDIES IN LANGUAGE AND LITERATURE 
 
 1. Esther L. Swenson, An Inquiry into the Composition and Structure of 
 Ludus Coventriae; Hardin Craig, Note on the Home of Ludus Coventriae. 1914. 
 $0.50. 
 
 2. Elmer Edgar Stoll, Othello: An Historical and Comparative Study. 1915. 
 $0.50. 
 
 3. Colbert ^KkRh^s, Les Sentiments de rAcadSmie Frangaise stir le Cid: Edition 
 of the Text, with an Introduction. 1916. $1.00. 
 
 4. Paul Edward Kretzmann, The Liturgical Element in the Earliest Forms 
 of the Medieval Drama. 1916. $1.00. 
 
 5. Arthur Jerrold Tieje, The Theory of Characterization in Prose Fiction 
 prior to 1740. 1916. $0.75. 
 
 CURRENT PROBLEMS 
 
 1. William Anderson, The Work of Public Service Commissions. 1913. $0.15. 
 
 2. Benjamin F. Pittenger, Rural Teachers' Training Departments in Min- 
 nesota High Schools. 1914. $0.15. 
 
 3. Gerhard A. Gesell, Minnesota Public Utility Rates. 1914. $0.25. 
 
 4. L. D. H. Weld, Social and Economic Survey of a Community in the Red 
 River Valley. 1915. $0.25. 
 
 5. Gustav p. Warber, Social and Economic Survey of a Community in 
 Northeastern Minnesota. 1915. $0.25. 
 
 6. Joseph B. Pike, Bulletin for Teachers of Latin. 1915. $0.25. 
 
 7. August C. Krey, Bulletin for Teachers of History. 1915. $0.25. 
 
 8. Carl Schlenker, Bulletin for Teachers of German. 1916. $0.25. 
 
 9. William Watts Folwell, Economic Addresses. In press. 
 
LIBRARY OF CONGRESS 
 
 020 661 251 4