94. RECORDS OF JUDICIAL CASES (1627-38)
(A) The Case of the Five Knights (1627)[1]
... This is a case of very great weight and great expectation, and it had been fit we should have used more solemn arguments of it than now for the shortness of the time we can do.... I am sure you expect justice from hence, and God forbid we should sit here but to do justice to all men according to our best skill and knowledge, for it is our oaths and duties so to do.... We are sworn to maintain all prerogatives of the king; that is one branch of our oath. And we are likewise sworn to administer justice equally to all people.... That which is now to be judged by us is this: whether any one that is committed by the king's authority, and no cause declared of his commitment, according as here it is upon this return — whether we ought to deliver him by bail or to remand him back again....
The exceptions which have been taken to this return were two: the one for the form, the other for the substance.... In our case the cause of the detention is sufficiently answered, which is the demand of the writ; and therefore we resolve that the form of this return is good. The next thing is the main point in law, whether the substance or matter of the return be good or no — wherein the substance is this: he doth certify that they are detained in prison by the special command of the king. And whether this be good in law or no, that is the question....[2]
The precedents are all against you, every one of them. And what shall guide our judgments, since there is nothing alleged in this case but precedents? That, if no cause of the commitment be expressed, it is to be presumed to be a matter of state, which we cannot take notice of. You see we find none — no, not one that hath been delivered by bail in the like cases, but by the hand of the king or his direction.... Now here I shall trouble you with no more precedents; and you see your own, what conclusion they produce. And as to those strong precedents alleged on thé other side, we are not wiser than they that went before us. And the common custom of the law is the common law of the land, and that hath been the continual common custom of the law, to which we are to submit; for we come not to change the law, but to submit to it....
But the question now is whether we may deliver this gentleman or not.... Mr. Attorney hath told you that the king hath done it, and we trust him in great matters. And he is bound by law, and he bids us proceed by law as we are sworn to do, and so is the king. And we make no doubt but the king, if you seek to him ... , will have mercy. But we leave that. 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.... I have endeavoured to give the resolutions of us all.
Howell, State Trials, III, 51-59.
(B) The Question of Ship Money (1637)[3]
... We, desirous to avoid such inconveniences, and out of our princely love and affection to all our subjects, being willing to prevent such errors as any of our loving subjects may happen to run into, have thought fit in a case of this nature to advise with our judges, who, we doubt not, are all well studied and informed in the right of our sovereignty. And because the trial in our several courts, by the formality in pleading, will require a long protraction, we have thought it expedient, by this our letter directed to you all, to require your judgments in the case, as is set down in the enclosed paper, which will not only gain time but also be of more authority to overrule any prejudicate opinions of others in the point. Given under our signet at our court at Whitehall, the 2nd day of February, in the twelfth year of our reign....[4]
May it please your most excellent majesty: We have, according to your majesty's command — every man by himself and all of us together — taken into consideration the case and question signed by your majesty and enclosed in your royal letter. And we are of opinion that, when the good and safety of the kingdom in general is concerned and the whole kingdom is in danger, your majesty may, by writ under the great seal of England, command all the subjects of this your kingdom at their charge to provide and furnish such number of ships, with men, munition, and victuals, and for such time as your majesty shall think fit, for the defence and safeguard of the kingdom from such danger and peril; and that by law your majesty may compel the doing thereof in case of refusal or refractoriness. And we are also of opinion that in such case your majesty is the sole judge both of the danger and when and how the same is to be prevented and avoided. John Bramston. John Finch. Humphrey Davenport. John Denham. Richard Hutton. William Jones. George Crooke. Thomas Trevor. George Vernon. Francis Crawley. Robert Berkeley. Richard Weston.
Ibid., III, 843 f.
(C) The King v. John Hampden (1638) [5]
Robert Berkeley: ... The grand question is shortly this: whether ... in this special case ... the charges imposed by the king upon his subjects for provision of shipping, without common consent in parliament, be good in law — yea or no.... I hope that none doth imagine that it either is or can be drawn by consequence to be any part of the question in this case whether the king may at all times and upon all occasions impose charges upon his subjects in general without common consent in parliament. If that were made the question, it is questionless that he may not. The people of the kingdom are subjects, not slaves — freemen, not villeins to be taxed de alto et basso. Though the king of England hath a monarchical power and hath jura summae majestatis and hath an absolute trust settled in his crown and person for the government of his subjects, yet his government is to be secundum leges regni.... By those laws the subjects are not tenants at the king's will of what they have.... They have a birthright in the laws of the kingdom. No new laws can be put upon them; none of their laws can be altered or abrogated without common consent in parliament. Thus much I speak to avoid misapprehensions and misreports upon that which I shall say in this case, not as if there were cause of saying so much upon anything challenged on the king's side....[6]
It is to be observed that thé principal command in the shipping-writ is not to levy money; it is to provide a ship — which ship being to be provided at the charge of a multitude ... , the thing cannot be done any manner of way but by ... money. Therefore, the instructions in the shipping-writ are not only apt but necessary.... And thereupon it may be said that the sum assessed upon every one, and in our case upon Mr. Hampden, is ... a duty to be performed as a means conducing to the principal end; the refusal of performance of which duty is a refusal to obey the principal thing commanded ... , being of a kind concerning the commonwealth. The king, who is the head, the sovereign of the commonwealth, and who hath as incident to his regal office power of coercion, is by law to exercise such his power of coercion to enforce such as refuse to join with others in performance of that which is commanded for the commonwealth....
I would be loath to irritate any differing in opinion from me with provoking or odious terms; but I cannot more fully express myself ... than in saying that it is a dangerous tenet, a kind of Judaizing opinion to hold that the weal public must be exposed to the peril of utter ruin and subversion, rather than such a charge as this, which may secure the commonwealth, may be imposed by the king upon the subject without common consent in parliament.... All know that the Jews were so strict that they would not use means for defence of themselves and their country upon their Sabbath. Their enemies took the advantage and ruined their state....
Mr. Holbourne[7] supposed a fundamental policy in the creation of the frame of this kingdom that, in case the monarch of England should be inclined to exact from his subjects at his pleasure, he should be restrained, for that he could have nothing from them but upon a common consent in parliament. He is utterly mistaken herein. I agree the parliament to be a most ancient and supreme court, where the king and peers, as judges, are in person, and the whole body of the commons representatively. There peers and commons may ... , amongst other things, make known their grievances, if there be any, to their sovereign and humbly petition him for redress. But the former fancied policy I utterly deny. The law knows no such king-yoking policy. The law is itself an old and trusty servant of the king's; it is his instrument or means which he useth to govern his people by. I never read nor heard that Lex was Rex; but it is common and most true that Rex is Lex, for he is ...a living, a speaking, an acting law....
There are two maxims of thé law of England which plainly disprove Mr. Holbourne's supposed policy. The first is that the king is a person trusted with the state of the commonwealth. The second of these maxims is that the king cannot do wrong. Upon these two maxims the jura summae majestatis are grounded, with which none but the king himself — not his high court of parliament without leave — hath to meddle: as, namely, war and peace, value of coin, parliament at pleasure, power to dispense with penal laws, and divers others; amongst which I range ... also ... power to command provision — in case of necessity — of means from the subjects, to be adjoined to the king's own means for the defence of the commonwealth.... Otherwise I do not understand how the king's majesty may be said to have the majestical right and power of a free monarch....
And so I have done at this time. And what I have said I have spoken to the best of my understanding and in discharge of my conscience.... And, it being high time now for me to give over, I conclude upon all my reasons and authorities cited that, as this case is upon the pleading of it, the charge of 20s. imposed on Mr. Hampden towards the provision of a ship commanded by the writ ... is consonant to law, and consequently that judgment ought to be given against him....
Sir George Crooke: ... That which hath moved me most and maketh me distrust my own judgment in this case is that my brothers that have argued before me ... have all argued one way; with whose opinions I should willingly have concurred if I could have satisfied my own judgment with their reasons. But, not being satisfied, I have learned that I must not come with a multitude against mine own conscience.... And therefore I shall show reasons and leave myself to the judgment of my lords and others my brethren. And whatsoever shall be adjudged I must submit unto, and so do with all others; and do now declare my opinion to be that, as this case is, judgment ought to be given for the defendant. My reasons and grounds that I shall insist upon are these: (1) that the command by this writ ... for to have ships at the charge of the inhabitants of the county ... is illegal and contrary to the common laws, not being by authority of parliament; (2) that, if at the common laws it had been lawful, yet now this writ is illegal, being expressly contrary to divers statutes prohibiting a general charge to be laid upon the commons in general without consent in parliament; (3) that it is not to be maintained by any prerogative or power royal, nor allegation of necessity or danger; (4) admitting it were legal to lay such a charge upon maritime ports, yet to charge any inland county, as the county of Bucks is, with making ships and furnishing them with masters, mariners, and soldiers at their charge ... is illegal and not warranted by any former precedent....[8]
To this opinion I confess I then, with the rest of the judges, subscribed my hand; but I then dissented to that opinion and then signified my opinion to be that such a charge could not be laid by any such writ but by parliament. And so absolutely in that point one other did agree with me, and dissented from that opinion; and four others in some other particulars from that which was subscribed. But the greater part seeming absolutely to be resolved upon that opinion — some of them affirming that they had seen divers records and precedents of such writs satisfying them to be of that judgment — I was pressed to subscribe with them.... And this by more ancient judges than myself was affirmed to be the continual practice; and that it was not fit — especially in a case of this nature, so much concerning the service of the king — for some to subscribe and some to forbear their subscriptions; and that, although we did subscribe, it did not bind us, but that in point of judgment, if the case came in question judicially before us, we should give our judgments as we should see cause....
Ibid., III, 1089-1145.
(D) Star Chamber Reports (1631)[9]
In the star chamber, Trinity term of the seventh year of King Charles: in the council of the lord king at that same place, before Thomas, lord of Coventry, lord keeper of the great seal; Henry, earl of Manchester, lord keeper of the privy seal; John, earl of Bridgewater; William, bishop of London; Richard, bishop of Winchester; Nicholas Hyde, knight, lord chief justice of the king's bench; Thomas Richardson, knight, lord chief justice of the [common] bench.
Between John Smith, plaintiff, and Benjamin Crokew and Thomas Wright, defendants. The plaintiff's bill showed that there had been a long suit in the chancery between the plaintiff Smith and the defendant Crokew about lands belonging to the free school of [Wooton Underedge] in Gloucestershire, and this suit was directed to be there sued by the judges of the common law. And this was heard so far: the possession was decreed to the school, and all other estates to be cancelled, and the school's estate to be surrendered to the king with purpose to grant the same back again to the school. It was ordered further that, whereas Smith had been in possession of the manor or lordship of Wallens Court, being his own fee simple, and his lands lying intermixed with the school lands, he should have a lease ... of the said lands in question. The king made a new grant by his letters patents and founded the school; and the lease is made to Mr. Smith accordingly. That divers good ordinances were made for the ordering of the school, 40m. per annum raised for the master and £4 a year for four poor scholars going to the university; that Mr. Smith hath improved it to the payment of £4 more to a poor scholar. That the defendant Crokew had — to the scandal of the court of chancery, of the late lord chancellor, of the lord keeper, and the king's counsel — printed and divulged a scandalous book to the number of 400 copies, divulged them in Somersetshire and Gloucestershire and London; and Wright the defendant, being a bookseller in Bristol, sold many of the books. And [the plaintiff] complained particularly that the said book contained a scandalous frontispiece and twelve principal slanders and scandalous passages in the book, naming the several pages; and that it was also to the scandal of the plaintiff Smith. The bill prayed the calling in of this scandalous libel to be burnt, and for repair of the plaintiff's reputation.
The defendants made no defence by counsel but, after an affidavit read for serving of the subpoena ... , the defendants' answers were read. Crokew answered that there had been many unjust suits between the plaintiff and him, wherein the plaintiff had wronged him; that he caused a brief relation of all to be printed to inform the court of parliament, and kept his book, being printed, from publishing till the parliament was sitting, and then gave some of them to his friends. He intended not to lay scandal upon any, but to lay the fault upon the plaintiff only, and he hath not put to sale any of the books — and so not guilty.
Thomas Wright answered that Crokew told this defendant he had printed such books and would desire him to sell some of them for him; and after thirty books were sent by the carrier to him; that he sold them, not thinking they were scandalous, and he thought they were not when he read the book — and so not guilty.
The plaintiff's counsel showed the scandals of the book and the frontispiece: A True Relation of the Strange Passages in Causes between Smith and Crokew, especially in a Cause about the Statute of 43 of Elizabeth of Charitable Uses — wherein Smith hath abused his majesty that late was, my lord bishop of Canterbury, my lord chancellor, my lord keeper, in getting the possession of the said school lands, for which Crokew hath a bill now depending in the parliament.... The defendant Crokew confessed he caused it to be penned, and it was done by a servant of the now master of the court of wards, and agreed with one for £9 to print them, etc.
The court in their sentence condemned this book for a libellous and scandalous book, and declared that to print or write briefs of a cause before the hearing and to divulge and publish them is to be accounted scandalous and libellous, because it tendeth to make a private information of the cause. The court therefore ordered that this book, as many of them as could be gotten, should be brought to the public assizes at Gloucester and there burnt; Crokew to pay £500 fine to the king; and Wright £100 for selling some of the books (for if libels are printed, it is not warrant enough to any bookseller to put them to sale); and both to be imprisoned according to the course of the court; and the sentences to be drawn up to clear Smith in his reputation....
Between Richard Waterhouse, plaintiff, and Sir Arthur Ingram, defendant.... The plaintiff's counsel opened the bill, consisting of three several charges: (1) for forging a deed of assignment of an old lease ... of certain lands at Halifax in Yorkshire ...; (2) ... for procuring a release of the said lands in question from Robert Waterhouse ... while the said Robert was non compos mentis; (3) ... for endorsing the plaintiff's name as a witness to a deed of indenture ... whereas the plaintiff was no witness to the same deed. It was confessed by the plaintiff's counsel that two of these charges were mistaken ...; but for the third charge they showed that divers trials at the law there had been and verdicts and judgments for the plaintiff....
The defendant justified his purchase and denied the forgery and the other crimes and justified an assignment by one Miller dated 1612 ... , ana produced the same to this court....
The sentence of the court was that Sir Arthur Ingram was clear of the forgery and other crimes; that the bill should be taken off the file; that the plaintiff should pay a fine of £100 to the king pro falso clamore, and £500 damages to Sir Arthur Ingram; and the plaintiff to make confession of his fault at the assizes at York, standing upon a stool, and at the block at Halifax....
Between Keld, plaintiff, and Fairside, defendant.... The plaintiff brought his bill charging the defendants of perjury, subornation of perjury, and confederacy to indict the plaintiff of high treason at York for saying these words ...: "If it were the king's pleasure that these exactions be made, then we must needs think he is a very beggarly prince...." That the grand jury found an ignoramus.[10]
The defendant was a constable and demanded benevolence[11] of the plaintiff for the king, and the defendant answered upon his oath that the plaintiff did speak these words unto him upon his second coming to him from Sir Thomas Hobby for a larger contribution; and confessed he did give evidence to the grand jury to this purpose, yet the jury would not find the bill.
The court was opinioned the words were spoken, though the jury in favour of life would not take notice of it by a single witness. And therefore, if this man should be punished for this, it would be a dangerous precedent; for that every single witness must run upon this rock, either to be perjured or punished. The plaintiff's bill was therefore dismissed and he was fined £20 pro falso clamore....
One Archer of Southchurch in Essex was brought ore tenus,[12 ]being then charged by Mr. Attorney General for keeping in his corn and consequently for enhancing the price of corn the last year; which offence Mr. Attorney affirmed to be of high nature and evil consequence, to the undoing of the poor and malum in se, and then desired his examination taken before the lord keeper might be read. His examination purported that he had seen at the time of his examining a presentment that was made against him by the grand jury at the last assizes in Essex before Justice Vernon for the said offence of keeping in his corn and enhancing; and for that he had made a bargain to sell the poor of the town where he dwelt rye for 7s. a bushel, and afterwards refused to perform his bargain unless he might have 9s. a bushel. He denied this bargain, but for his excuse said he sold to the towns about him, for the poor, wheat at 7s. and 8s. a bushel, and at the latter end of the year for 5s.; and rye for 7s. and 6s., etc., and some for 3s. and 6d. the bushel. He confessed he kept in his corn till June, and that he had 8 quarters of wheat, 60 quarters of rye, and 100 quarters of oats; and that his family were himself and his wife and daughters, two maids, and a man. He confessed that he sold none or very little of his corn in Rochford Hundred where he dwelt, though he were commanded so to do by the earl of Warwick. Yet for his defence he further alleged that his barn was not visited by any justices or officers according to his majesty's late proclamation and orders for that purpose....
Justice Harvey ... was of opinion that this man's punishment and example will do a great deal more good than all their orders which they might have made at the sessions. And therefore he declared his offence to be very great and fit to be punished in this court; and adjudged him to pay 100m, fine to the king and £10 to the poor, and to stand upon the pillory in Newgate Market an hour with a paper, wherein the cause of his standing there was to be written, put upon his hat — "For enhancing the price of corn" — and then to be led through Cheapside to Leadenhall Market, and there likewise to stand upon the pillory one hour more with the same paper upon his hat, and after this to be sent to Chelmsford, and there likewise in the market to stand upon the pillory.
Sir Thomas Richardson affirmed this offence to be an offence at the common law long before the king's proclamation and orders, and also against some statutes.... He therefore condemned the said Archer to be guilty ... and agreed in his said fine to the king.... The bishop of London observed, with Mr. Attorney, that this was malum in se, and that this Archer was guilty of a most foul offence.... The earl of Danby consented to the sentence in all.... The earl of Dorset concurred in his sentence with the earl of Danby.... Lord privy seal gave his sentence in few words, that Archer was guilty by his own confession of a very great offence and well worthy the sentence aforesaid.... The lord keeper did affirm that it was indeed a good work to bring this man forth to be here sentenced.... His said lordship consented to the highest censure against the said Archer ... and committed Archer to the Fleet....
The king's attorney general, plaintiff; Charley Moody, Richard Strode ... and others, defendants. The bill set forth that his majesty, being seised of divers lands and waste grounds called the Fens ... surrounded with water and barren ... , by advice of his council took order with Sir Cornelius Vermuyden for the draining of the Fens, if it might be. And articles of agreement were made between his majesty and the said Sir Cornelius Vermuyden ... for the doing thereof; and a special provision [was made] that those that had any title of common should repair to the commissioners appointed lor that purpose by commission and, upon their showing their title or interest, they should have full recompense. The king's letters were sent to warn them to come to the commission and demand their recompense.... The king provided workmen, the work was brought to good forwardness, and divers ditches and banks made, and Sir Cornelius Vermuyden was at great charge thereabouts.... The defendants with others came together in companies to throw down and demolish what was done: although divers proclamations were made, and no right they could pretend.... They made their assemblies by hundreds and five-hundreds; they demolish the work; they ... burn the spades, shovels, wheelbarrows, planks, and beat the workmen; set up a pair of gallows for to terrify the workmen; threw some of them into the water and held them under a while. They had a signal to assemble themselves by, sometimes by a bell, sometimes by an horn. They threatened to kill the workmen if they came thither to work again.... They had fourteen several times in riotous and rebellious manner assembled themselves and done these riots, etc., to the slander of his majesty's government, to the hindrance of the work, and to the damage of Sir Cornelius Vermuyden £5000.... Some of them put those that served the king's process out of this court upon them into the stocks.
The defendants' answers some were read and the rest opened by counsel. They all claimed their common of pasture with all manner of cattle and common of turbary at all times of the year.... They never agreed with Sir Cornelius Vermuyden.... The country receiveth no profit by the work. The grounds are made rather worse. They confess, some of them, that they did with others enter into their grounds to go to their cattle there depasturing; that they cut down the banks and ditches and levelled them for stopping their way. This they did to claim their right, which they hope this court will maintain; seeing they have had possession and seisin ... time out of mind. And as to the unlawful assemblies, riots, routs, plots, confederacies, woundings, beatings, etc., not guilty....
It was unanimously declared by the whole court that his majesty proceeded herein legally and rightfully for the benefit of his crown and people.... And many of the defendants were found guilty of the several riots charged in the bill: namely, Toxie, James Moody, Henry Scott, and Hezekias Browne, who were fined £1000 apiece; the widow Smith, who married the minister after the riots, £500; and the several women who were proved to be at the said riots, 500m. apiece. And they were adjudged to pay for damages to Sir Cornelius Vermuyden, the relator, £2000....
Gardiner, Cases in Star Chamber and High Commission, pp. 37-65.
(E) High Commission Reports (1631)
In the court of high commission, Thursday, 20th October, 1631; before George, archbishop of Canterbury; William, bishop of London; Thomas, bishop of Coventry and Lichfield; Theophilus, bishop of St. David's; Francis, bishop of Norwich; John, bishop of Rochester; Sir Dudley Digges, knight; Sir Henry Martin, knight, doctor of law; Sir John Lambe, knight, doctor of law; Sir Nathaniel Brittaine, knight, doctor of law — commissioners.
The cause against Samuel Pretty, clerk. [Article 1:] That the said Samuel, being a minister, was commonly reported for the space of two years last past as a schismatical man. [Answer:] He confesseth himself to be a minister, but denieth that other part of the article. [Article 2:] That he had within twelve months last past preached in the church called St. Michael Pater Noster Royal, London, without licence of the bishop of that diocese. [Answer:] He confesseth that he hath preached in the said church and that he had licence from the late bishop of London. [Article 3:] That the said Samuel in his sermon there delivered these erroneous doctrines and assertions following, viz., that Christians cannot, as touching their reconciliation with God, be too secure — nay, they ought to sing all care away. [Answer:] He saith that he hopeth these words may be spoken, because a favourable construction may be made of them....[13]
The archbishop: "Pretty, tell me, if you had been in Jerusalem in the Temple among the buyers and sellers, would not Christ have whipped you out with them? What think you?" Samuel Pretty: "If there were not favourable construction of my words to be made, I think I should have been whipped out if I had been there." Then he fell down upon his knees and acknowledged he had given just offence, as by the articles was alleged; and humbly desired mercy of the court.
The archbishop then would only have imprisoned and suspended him from his ministerial office; but it was moved by the bishop of London[14] that he might undergo the censure of the court ... , for that he and others were minded to degrade him....[15] The archbishop concluded, briefly but sharply reproving him for his phrase of singing all care away. "Yea," saith the archbishop, "drink it away, too; but to what purpose then are all those rules of mortification and growing in sanctification, as 'The night is past, the day is at hand; let us therefore cast away the works of darkness,' etc." And [he] gave his sentence thus: "Let him be imprisoned, suspended, degraded, and kept in prison till he bring in his licence."
[24 November 1631.] A cause against Dr. Hooke, parson of Nettleham in Yorkshire, came to be heard this day. The articles against Dr. Hooke were six or seven: ( I ) for saying he resigned his archdeaconry because he would be rid of those caterpillars and canker-worms, the ecclesiastical officers; (2) for delivering his opinion at York before the justices of assize that he held it unlawful for priests to exercise any temporal jurisdiction; (3) for making licences for marriages without publishing any banns at his vicarage of Castor ... and that he used a little seal, and that he married some himself and took money of them for the licences, etc.; (4) he was accused of six or seven several adulteries, he himself being a married man; (5) he was charged with the simoniacal resignation and bestowing of his vicarage of Castor upon a young man, a minister that was no party to this suit; (6) he was articled against for a contempt offered to this court by words, etc....[16]
I give my sentence against this man, for his making of lawless churches, to be suspended three years. For his saying against the officers that they are caterpillars, I let that pass. For his simony I vehemently suspect him, and therefore [he is] to purge himself septima manu.[17] For the matters of adultery, it seemeth to me a wondrous thing that a man of his years should so carry himself to be subject to suspicion. These may be pardoned ...; I think him not guilty of these obliquities.... But for the other thing, that no clergyman may be so much as a justice of peace, this is fantastical and makes such a breach in the church that he cannot easily make satisfaction.... Well, sir, I must admonish you for your contempt ...; you are to pay the charges of the suit and to be committed....
[26 April 1632.] Dr. Hooke maketh faith that the certificate of the purgation to be made this day by him was read in the parish church of Nettleton.... Then he produced his compurgators: by name, John Shiboy, doctor of divinity; Francis Bradshaw, Thomas Holt, Dennis Squire, Matthew Miller, Thomas Clare, bachelors of divinity. Dr. Hooke and the rest came in their cloaks, and the said Holt in a careless ruff and his hair somewhat long. For which their coming they were chidden, and especially Mr. Holt. And they were rejected till they should come as divines in their gowns. And they went and got them gowns and scarfs; and Mr. Holt had another ruff and a black satin night-cap on. And they appeared again, and then the cause was opened by the doctors both on the one side and the other. The promoter's counsel showed the accusations and the proofs against the doctor, and his counsel showed his defence. Which done, Dr. Hooke took his oath, swearing that he was not guilty of the crimes laid against him, nor any of them. And the said compurgators were first demanded severally whether they, notwithstanding all that had been said, thought the doctor to be clear and innocent. And they all did answer severally Yes. Then they took their oaths, swearing that they thought in their consciences that Dr. Hooke had taken a true oath....
[3 May 1632.] This day were brought to the court out of prison divers persons ... which were taken on Sunday last at a conventicle met at the house of Barnett, a brewer's clerk, dwelling in the precinct of Black Friars....
Then came in Mr. Latropp, who is asked what authority he had to preach and keep this conventicle. And saith the bishop of London: "How many women sat cross-legged upon the bed whilst you sat on one side and preached and prayed most devoutly?" Latropp: "I keep no such evil company; they were not such women." London: "Are you a minister?" ... He answered that he was a minister. London: "How and by whom qualified? Where are your orders?" Latropp: "I am a minister of the gospel of Christ, and the Lord hath qualified me." "Will you lay your hand on the Book and take your oath?" said the court. He refuseth the oath....
Samuel Eaton and two women and a maid appeared, who were demanded why they were assembled in that conventicle when others were at church. Eaton: "We were not assembled in contempt of the magistrate." London: "No, it was in contempt of the Church of England." Eaton: "It was in conscience to God...." Canterbury: "What did you?" "We read the Scriptures and catechized our families," said Eaton; "and may it please this honourable court to hear us speak the truth, we will show you what was done ...; we did nothing but what you will allow us to do." London: "Who can free you? These are dangerous men; they are a scattered company sown in all the city.... Hold them the Book." Eaton: "I dare not swear nor take this oath.... I know not what I shall swear to." King's advocate: "It is to give a true answer to articles put into the court against you, or that shall be put in touching this conventicle of yours and divers your heretical tenets, and what words and exercises you used, and things of this nature." Eaton: "I dare not." ...[18] Archbishop of Canterbury: "Take them away." So they were all committed to the New Prison.
[14 June 1632.] ... Sound, Hollingsworth, Gerard, John Osborne, and Thomas Pocock, having answered for setting up and continuing the seats above the communion table in St. Austin's Church by Paul's, they being churchwardens and parishioners there, Dr. Duck, the chancellor of London, moved that their answers and their cause might be considered, and they ordered to take down and remove their seats newly set up above the communion table. London: "You say you have not room for your parishioners, and therefore you must have seats above God Almighty and above Christ in His own house. Judge you, is it reason? The church of St. Leonard's, Foster Lane, is in the same case; but I made them pull down their seats. And so I will you...." Parishioners: "If the court will order us to take them down, we will; or else we dare not, for the vestry hath ordered it that they shall be built upon the old foundation." ... Rochester: "The power of vestries and "churchwardens, this is to hatch a lay presbytery."
[21 June, 1632.] ... Ralph Grafton, an upholsterer, dwelling in Cornhill, London, was required to take his oath to answer the articles. He was said to be a principal ringleader of those conventiclers that met at Black Friars. King's advocate: "This is a rich man, dwelling within the city. My motion is that your grace and the court would set a fine upon this man if he shall refuse to answer, that others may be warned for contemning of the court." London: "Mr. Advocate. I thank you for this motion." King's advocate: "I require you and the court requireth you to take your oath to answer to matters of your own fact, as far as you know and are bound by law." Grafton: "An oath is a matter of an high nature and must not be taken rashly. I dare not, therefore, take this oath. We have done nothing against the law. It was no conventicle. There was nothing spoken against the king, nor against the state. I dare not take the oath and I am no ringleader of any to evil." Canterbury: "You met without law; you had no authority...." Wherefore the court for his contempt in refusing the oath set a fine of £200 upon him and committed him to prison. Grafton: "I have bail here ready; if you please to take it, 1 tender it to you." ... Canterbury: "No, away with him to prison!" ...
Ibid., pp. 181 f., 246 f., 276 f., 306 f., 315 f.
[1] Following up his demand for a forced loan, Charles I in 1627 imprisoned various persons who had refused to contribute. Five of the prisoners — Sir Thomas Darnel, Sir John Corbet, Sir Walter Earl, Sir John Heveningham, and Sir Edmund Hampden — thereupon sued for writs of habeas corpus from the court of king's bench. The writs, thus being granted, were returned by the warden of the Fleet Prison with the statement that he had acted by virtue of a warrant from two members of the privy council ordering the prisoners committed "by the special command of his majesty." The points at issue, as well as the judgment of the court, are clearly stated by Chief Justice Hyde.
[2] The chief justice here takes up in detail the precedents cited by attorneys for the prisoners.
[3] In connection with the writs for the levy of ship money already issued (no. 93B), Charles I directed to his judges the letter which in part follows. And he received the answer which is quoted in full.
[4] The substance of the king's question is repeated in the judges' answer.
[5] John Hampden, a freeholder of Buckinghamshire, refused to pay 20s. assessed upon his land as ship money in accordance with the king's writ of 1636 (see above, p. 455, n. 2). On being summoned before the court of exchequer to show cause for non-payment, Hampden through his attorneys declared the levy illegal; and, as a test case, the matter was taken into exchequer chamber to be discussed before all the justices of the central courts. After twelve days of argument by counsel on the two sides, the court, by a vote of seven to five, gave judgment against Hampden. How these five — Crooke, Hutton, Denham, Davenport, and Bramston — thus came to differ from the view to which they had earlier subscribed is explained in the second of the following opinions, that of George Crooke. The first, in which the majority of the court concurred, is that of Robert Berkeley. Both men were justices of the king's bench.
[6] Berkeley here reviews the long series of precedents cited by Hampden's counsel.
[7] Counsel for Hampden.
[8] Crooke here refers to the answer given by the judges in the previous February.
[9] The following cases are taken from various sessions of the court, each of which is preceded by a list of those present similar to the one that is given here. These lists are normally in Latin.
[10] A refusal to indict.
[11] One of the levies made by James I; cf. no. 60H.
[12] To answer in person.
[13] Three other articles charge Pretty with doctrinal errors and these charges are supported by three witnesses.
[14] William Laud, subsequently archbishop of Canterbury.
[15] All but one member of the court spoke in favour of his degradation.
[16] After long argument, the members of the court gave their opinions and the archbishop of Canterbury delivered the following sentence.
[17] With six oath-helpers; see immediately below. Cf. no. 14F.
[18] The other prisoners also refused to take the oath.
