The petition of right ...

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 parliamentary 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 between Charles I and the House of Commons. From the content of the Petition all historians have recognized that in that year a great constitutional issue was at stake. But from lack of information they have assumed that the passage of the Petition denoted a complete victory for the Commons, 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 hopelessness 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 Petition 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accessible to him were so much more ample, his insight and critical faculty were so much greater that he has entirely superseded all who wrote before him.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found in the prevalent feeling that Gardiner made the period of the early Stuarts peculiarly his own; that he not only superseded all who had written before, but that for all time to come those who follow can be only gleaners in his field.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 PREFACE

Gardiner had no such help; he was practically a pioneer in the field. 1 As such, the only way that he could possibly cover the ground was by attempting 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 British Museum and even more through the work of the Historical Manuscripts Commission a great deal of valuable material on this subject has been brought to light. It is only since more detailed journals 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 well as on the procedure which followed. Even for the first part his material was not ample enough to make the issues clear. 2 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 volume 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 material 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 knowledge 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

1 For a comparison of the source material used by Gardiner and his predecessors, see the bibliographical 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.

1 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.

PREFACE v

writer could 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 manuscripts, 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 which 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 depend upon notes. The writing in seventeenth century diaries is so difficult to decipher that one dare not depend upon the work of a copyist, but modern photography gives the student the equivalent of the originals 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 under whose supervision the study was prepared as a doctor's dissertation.

Contents

Chapter

I. The Decision in the Five Knights' Case 1

II. Statutes, Precedents, and Records 11

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 manuscripts. 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 footnotes are to them and not to the originals. To avoid any misunderstanding there have been included in the key the often-used abbreviations of certain 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,

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 Parliamenlaria.

Chapter I The Decision In The Five Knights' Case

The Petition of Right was the culmination of the struggle in 1628 between 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 began by an enumeration of grievances. Miscellaneous as these appear on the surface, they all go back to a common cause, the King's unconstitutional 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 granted everything else demanded by the Commons. Thus arbitrary imprisonment 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 Petition 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. 1 In order to understand why that

1 It is also popularly referred to as "Darnel's Case," and that in spite of the fact that Darnel refused to plead.

particular case was made a parliamentary grievance it is necessary to examine 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 collecting the loan had been issued in September of 1626. 2 From the beginning there were many who refused to contribute, 3 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, 4 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 w T ent by, however, and the hope of release grew slight, 5 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 6 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, because even as early as this the case had gained great publicity. 7 "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." 8 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 conference with the judges at which he was "appeased by reasons." 9 It seems probable that at this conference the character of the return to the

* to Mead, October 6, 1626. Court and Times 1:154.

4 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.

6 Sir Thomas Darnel, Sir John Corbet, Sir Walter Erie, Sir John Heveningham, and Sir Edmund Hampden.

7 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, Slate Trials 3 :4.

9 Pory to Mead, November 2. Court and Times 1 :280. See also Beaulieu to Pickering, November 28. ibid. 294.

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 statement 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. 10 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. 11 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 becomes 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. 12 If the prisoner was to be allowed bail the entry was committitur Marescallo, et postea traditur in B allium. If he was ordered back to prison, there to remain until brought to trial, the entry was remittitur quousque secumdum legem deliberatus fuerit, or, as it was more frequently entered, remittitur 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

10 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: tthey] 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.

11 This explanation is taken from that of Selden, made before the Lords. L.J. 3:723.

praedictae, without any more. And so," adds Selden by way of explanation, "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." 13 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." 14 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." 15 This was, indeed, the common notion. 16 It was this notion that made arbitrary imprisonment the great grievance of the coming Parliament. "Arguments were made and judgment given," said Selden. 17 "I am ashamed of the judgment," said Phelips. 18 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." 19 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." 21 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. 22 But in making his explanation, Shelton in-

« State Trials 3:59. » to Mead, November 30, 1627. Court and Times 1:295.

« Beaulieu to Pickering, November 28, 1627. Ibid. 294.

19 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.

21 H, 2313:26. See also M, 49, or (for the same account) Stale Trials 3:76.

42 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.

troduced a new complication. "The judgment," he said, "was remittitur quousque etc." Selden and Coke took this up. "I heard heare a quousque," 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." 23 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, " 24 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. 26 The blame for the misconception was laid to "vulgar opinion, raised out of the flame of the late judgment." 27

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 precedents at the trial which were not "rightly put." 28 He glibly offered precedents in support of the other side, boasting that he could bring in forty at least. 29 Wandesford took it up and moved that the Solicitor produce his books if he could; 30 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

13 M, 47-47 verso. H, 2313:20 adds: "that 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 adviser i vulll no it is donee secundum legem el curiam deter minelur." B, 31.

The interpretation of quousque remained a subject of dispute. Later when the question was submitted to the judges they declared that remttlitur, 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 remillitur quousque." H, 2313:19.

"None of the judges gave sentence definitely." B, 28.

That it was for advisement. M, 47.

24 M, 50 verso-51. That is that the case was held for advisement.

2* Mead to Stuteville, April 12. Court and Times. 1:336.

26 The question may wel! 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 sufficient 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.

27 Selden on April 9. L.J. 3:723. 28 B. 24 verso. 2J B. 31 verso. '« B, 32.

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. Sollicitor brought a Booke, but not any case more, to the Subcommitty with the notes of students quight mistaken. But hee mutch commended the Ingenuity of Mr. Sollicitor that brought to the subcommitty the case of Sir John Henningham 31 in a copy of a record of judgment, who beinge committed 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 full of blancks, the beginninge was confessed to bee written by the Clerke, the latter ende by an other hande, and so foisted in, and certainly intended to have binne recorded and the blancks filled up." 32

Selden read to the House not only the words quoted above but the complete text of the judgment. 33 It followed the usual form of a judgment made after the case had been held for advisement and deliberation; 34 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 arguments used to qualifie that judgment," said he, "and that it was noe judgment. 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 punished." He moved that it be further investigated by the Committee, which was so ordered. 35

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. 36 So when, on comparing it with former

31 One of the five knights who was granted the writ of habeas corpus.

3? B, 33 verso.

33 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.