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The Arguments in King's Bench in 1629 concerning the Imprisonment of John Selden and Other Members of the House of Commons

Published online by Cambridge University Press:  10 January 2014

John Reeve
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Extract

The demonstration in the House of Commons on March 2, 1629, by Sir John Eliot, John Selden, and several other members was an event with the most serious implications. Their protest against the Arminian movement in the English church and against the levying of Tonnage and Poundage without the consent of Parliament was in fact an appeal to the country over the head of the king's government. One is inclined to agree with Conrad Russell that this act was potentially revolutionary. Its immediate consequence was a stoppage of trade and a widespread refusal to pay customs duties, at a time of desperate royal financial need. On March 3, Eliot, Selden, and seven other members of the Commons were summoned to appear before the Privy Council, where they were later interrogated as to the meaning of their words and actions. When questioned, most of them appealed to parliamentary privilege, four (including Eliot) refusing absolutely to answer any question concerning matters in the House. Two of the delinquents, Coryton and Hayman, submitted themselves to the king and were released. The remaining seven were detained. The prosecution of these men by the Caroline regime was an important political episode too lengthy to be dealt with here in its entirety. But one aspect of these proceedings is worthy of examination in its own right. The hearings in King's Bench on the return of the prisoners' writs of habeas corpus have not received the attention and the analysis they deserve.

Type
Research Article
Information
Journal of British Studies , Volume 25 , Issue 3 , July 1986 , pp. 264 - 287
Copyright
Copyright © North American Conference of British Studies 1986

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References

1 Rushworth, J., ed., Historical Collections, 8 vols. (London, 1659–1701), 1:660Google Scholar.

2 Russell, C., Parliaments and English Politics, 1621–1629 (Oxford, 1979), pp. 415–16CrossRefGoogle Scholar.

3 Calendar of State Papers, Domestic (CSPD), 1628–29, p. 524; Calendar of State Papers, Venetian (CSPV), 1629–32, pp. 7–8, 19, 29; Acts of the Privy Council (APC), 1628–29, pp. 378–79; Reeve, L. J., “The Secretaryship of State of Viscount Dorchester. 1628–1632” (Ph.D. thesis, Cambridge University, 1984), pp. 135–36Google Scholar.

4 The nine members were SirEliot, John, Selden, John, Holies, Denzil, Valentine, Benjamin, Strode, William, SirHobart, Miles, Long, Walter, Coryton, William, and SirHayman, Peter (APC, 1628–29, p. 351Google Scholar; The New Cambridge Modern History, vol. 4, The Decline of Spain and the Thirty Years War, 1609–1648/1659, ed. Cooper, J. P. [Cambridge, 1971], p. 559)Google Scholar. Strode and Long did not appear before the council when summoned but were subsequently arrested and interrogated by Attorney-General Heath (Rymer, T. and Sanderson, R., eds., Foedera, 20 vols. [London, 1704–1732], 19:63–64Google Scholar; CSPD, 1628–29, p. 540).

5 Eliot, Valentine, Strode, Holies, and Hobart refused to answer, Hobart not denying that he had locked the door of the House. Selden dissembled but later appealed to privilege when prosecuted in Star Chamber. Long appealed to privilege but did answer questions put to him. (Public Record Office [PRO], State Papers [SP] 16/138/87–89, 139/6–8, 143/9; CSPD, 1628–29, p. 540; Cobbett, W., Howell, T. B., et al., eds., State Trials, 34 vols. [London, 1809–1828], 3:236Google Scholar [hereafter cited as State Trials]; Gardiner, S. R., History of England from the Accession of James I to the Outbreak of the Civil War, 1603–1642, 10 vols. [London, 1883–1884], 7:79–81, 91–92Google Scholar; Dictionary of National Biography [DNB], s.v. “Sir Miles Hobart”; Fraser, I. H. C., “The Agitation in the Commons, 2 March 1629, and the Interrogation of the Anti-Court Group,” Bulletin of the Institute of Historical Research 30, no. 81 [May 1957]: 86–95.CrossRefGoogle Scholar)

6 State Trials, 3:285Google Scholar; Gardiner, 7:80. They were still subject, however, to the Star Chamber information filed by Heath in May (PRO, SP 16/142/36).

7 State Trials, 3:236, 252Google Scholar; APC, 1628–29, p. 389; DNB, s.v. “Sir Miles Hobart.”

8 These proceedings are examined in Reeve, chap. 4.

9 See Reeve, now being revised for publication as a book entitled The Origins of the Personal Rule of Charles I.

10 For previous instances of such imprisonment and confinement (excluding the case of the forced loan) in the years given, see DNB, s.vv. “John Pym” (1621), “Sir John Eliot” (1623, 1626), “Sir Dudley Digges” (1614, 1626, 1627), “John Selden” (1621), “Sir Edward Coke” (1621), “Sir Robert Phelips” (1622), and “Sir Edwin Sandys” (1614, 1621). Charles imprisoned over seventy members of the gentry for opposition to the forced loan (Aylmer, G. E., A Short History of Seventeenth Century England, 1603–1689 [New York, 1963], p. 77Google Scholar; see also Elton, G. R., England under the Tudors [London, 1971], p. 319Google Scholar). The attempt to arrest the Five Members in 1642 can be seen as the extension of this tradition.

11 Guy, J. A., “The Origins of the Petition of Right Reconsidered,” Historical Journal 25, no. 2 (June 1982): 289–312CrossRefGoogle Scholar.

12 See Reeve, L. J., “The Legal Status of the Petition of Right,” Historical JournalGoogle Scholar (in press).

13 Sir Bernard Grenville to Sir Jas. Bagg, July 19, 1629, PRO, SP 16/147/14; CSPD, 1628–29, p. 524; Reeve, L. J., “Sir Thomas Roe's Prophecy of 1629,” Bulletin of the Institute of Historical Research 56, no. 133 (May 1983): 118–19CrossRefGoogle Scholar.

14 Rushworth, ed. (n. 1 above), 1:662–64; State Trials, 3:236–39Google Scholar; Braybrooke, Lord, ed., The Autobiography of Sir John Bramston of Skreens, Camden Society (London, 1845), pp. 51–54Google Scholar. The Star Chamber prosecution begun by the crown was eventually allowed to lapse, the majority of the judiciary apparently favoring the claim of parliamentary privilege (Gardiner, 7:91–92; Whitelocke, B., Memorials of English Affairs, 4 vols. [Oxford, 1853], 1:39Google Scholar).

15 Braybrooke, ed., pp. 49–51; questions and answers, with comments in the king's own hand, PRO, SP 16/141/44; State Trials, 3:238–39Google Scholar.

16 Eliot's resolutions had accused innovators in religion and government of being capital enemies to the kingdom and commonwealth (Rushworth, ed., 1:660). Charles's questions to all the judges had specifically mentioned treason (ibid., p. 663). See also State Trials, 3:239Google Scholar; Braybrooke, ed., pp. 50–51; Whitelocke, 1:39; Russell, C., “The Theory of Treason in the Trial of Strafford,” English Historical Review 80, no. 314 (January 1965): 31Google Scholar.

17 Viscount Dorchester to Sir Robert Anstruther, January 26, 1629, PRO, SP 75/10/19r–20r; Parker, G., Europe in Crisis, 1598–1648 (London, 1981), pp. 186–89Google Scholar; Reeve, , “Sir Thomas Roe's Prophecy of 1629,” p. 118Google Scholar.

18 Dorchester to Sir Charles Morgan, March 24, 1629, PRO, SP 84/139/75r; Reeve, “The Secretaryship of State of Viscount Dorchester” (n. 3 above); Parker, p. 189. Encouraged by Lord Treasurer Weston, Charles was at the same time investigating the overtures of Spain, which held out the possibility of a peaceful restoration of the Palatines (Alexander, M. C., Charles I's Lord Treasurer [London, 1975], pp. 151–57Google Scholar; Magurn, R. S., ed., The Letters of Sir Peter Paul Rubens (Cambridge, Mass., 1955], pp. 221–24, 283–90)CrossRefGoogle Scholar.

19 Reeve, , “Sir Thomas Roe's Prophecy of 1629,” pp. 118–19Google Scholar.

20 State Trials, 3:285Google Scholar; Whitelocke, 1:39.

21 The return of Strode's writ is printed in Rush worth, ed., 1:664; and in State Trials, 3:240–42Google Scholar. See also n. 23 below. The writs were sued out on May 6 (DNB, s.v. “Sir Miles Hobart”; Gardiner, 7:90). Gardiner's implication that the crown argued that it was not bound by the Petition to show a cause until this point appears to have been his own inference.

22 Birch, T., ed., The Court and Times of Charles I, 2 vols. (London, 1848), 2:14, 17–18Google Scholar. 20; Whitelocke, 1:38.

23 King's Bench controlment roll. Hilary term, [May 7], 1629, PRO, King's Bench (KB) 29/278, membrane xxxiii. The quote applies to Selden's case, but the same is repeated for the others. There is no customary reference to the coram rege roll, indicating the arbitrary nature of the imprisonment without information laid until Michaelmas (Rushworth, ed., 1:683). On the nature of sedition, see Holdsworth, W. S., A History of English Law, 13 vols. (London, 1922–1952), 5:208–11Google Scholar; I am grateful to Conrad Russell for this reference.

24 Any offender committed for a noncapital offense (i.e., for any crime except treason or felony, save petty larceny) was eligible for bail (Whitelocke, 1:39; Maitland, F. W., The Constitutional History of England [Cambridge, 1968], pp. 229–30, 314–15)Google Scholar.

25 Rushworth, ed., 1:664, 679–83; and 1, app.: 18–44. State Trials, 3:235–94Google Scholar (in Banco Regis, Easter, Trinity, and Michaelmas terms, 5 Car. 1, 1629). The arguments in the hearings, that of the Easter term at least, were recorded by Thomas Widdrington of Gray's Inn (Rushworth, ed., 1, app.:18; DNB, s.v. “Sir Thos. Widdrington”).

26 State Trials, 3:251Google Scholar.

27 The hearings began in the second week of May (Birch, ed., 2:14; PRO, SP 16/142/85).

28 State Trials, 3:239, 241–42Google Scholar.

29 Ibid., p. 244.

30 The return in the Five Knights' case had indicated that the prisoners had been committed by special command of the king; this was echoed in the original council warrant for the commitment of the members of the Commons in 1629 (ibid., pp. 3, 240).

31 Ibid., pp. 241–42.

32 Ibid., p. 247.

33 Ibid. This distinction, and the implication that the Petition of Right had not changed the law, rested also on a fallacy (ibid.), that the Five Knights' case had involved a cause shown and taken as true, which was incorrect, there being no judgment of bail in that case. Hyde's words in 1627 underline the point: “If no cause of the commitment be expressed, it is to be presumed to be for matter of state, which we cannot take notice of” (ibid., p. 57). The court did not take the return as a true cause; rather it assumed that a true cause existed, later to be stated—a crucial distinction blurred by Berkeley.

34 Ibid., p. 247.

35 Ibid., p. 248.

36 Ibid.

37 Ibid., p. 251.

38 Ibid., p. 250.

39 Ibid., p. 252.

40 Henry Lucas to Dorchester, May 15, 1629, PRO, SP 16/142/85.

41 That is, June 5 (Birch, ed. [n. 22 above], 2:17; State Trials, 3:252)Google Scholar.

42 For the draft of Littleton's brief, see Cambridge University Library (CUL), MS Mm. 6.63.4, fols. lv, 3r–28v.

43 State Trials, 3:252–53Google Scholar. While being practical, Littleton seems also to have been invoking the traditional idea of the “High Court of Parliament.” This was an ancient, although much less of a Tudor, tradition (Elton, G. R., The Tudor Constitution, 2d ed. [Cambridge, 1982], pp. 233–35Google Scholar).

44 State Trials, 3:253Google Scholar.

45 Ibid., p. 256.

46 Ibid., p. 259.

47 Ibid., p. 261.

48 Ibid., pp. 261–62.

49 Ibid., p. 262.

50 Ibid., pp. 262–63.

51 Ibid., p. 263; for the Commons lawyers' arguments against the Statute of Westminster, see Keeler, M. F., Cole, M. J., and Bidwell, W. D., eds., The Commons' Debates in 1628, 4 vols. (New Haven, Conn., and London, 1977), 2:531–32Google Scholar.

52 There was a brief drafted by Selden for use in the hearing that provided both the substance and the detail of Littleton's argument in court, while Littleton adapted it to his own use. The strength of his presentation indicates that they worked on it together, although the perfect relevance to the issue and the academic nature of the argument would suggest the inspiration of Selden. The editor of his complete works states that the brief was written entirely in his hand (Selden, John, Opera Omnia, ed. Wilkins, D., 3 vols. in 6 [London, 1726], 3:1938–54Google Scholar and preface). It was reprinted in State Trials (3:264–80)Google Scholar, although Howell's (?) statement (ibid., p. 264) that the brief and Littleton's argument are greatly different is incorrect and would seem to insist on an almost verbatim relation or none. The two documents correspond point for point and employ the same citations. Wilkins was right in saying that they were one argument. Selden's legal and linguistic analysis of sedition construed what the crown had been forced to reveal in fact as a noncapital offense, and his argument indicated the relevance of the Petition of Right to the case. He pointed out also the novelty of the issue (ibid., p. 265; see also DNB, s.v. “John Selden”).

53 State Trials, 3:258Google Scholar; and see esp. 259.

54 With the obvious exception of the aged Sir Edward Coke. On the depth of Littleton's legal learning and on his association with Selden, see Hyde, Edward, earl of Clarendon, The History of the Rebellion and Civil Wars in England, ed. Macray, W. D., 6 vols. (Oxford, 1888), 2:109Google Scholar; Birch (n. 22 above), 1:344; DNB, s.v. “Sir Edward Littleton.” Selden's contribution to political theory has recently been questioned, but the greatness of his legal learning remains beyond doubt (Somerville, J. P., “John Selden, the Law of Nature and the Origins of Government,” Historical Journal 27, no. 2 [1984]; 437–47CrossRefGoogle Scholar; see also State Trials, 3:16 ff.Google Scholar; Keeleretal., eds., 3:273 and n., 274n., 327 and n., and passim; DNB, s.v. “John Selden”).

55 State Trials, 3:261Google Scholar. That this was indeed correct in law and represented the meaning of the hearing was spelled out by Selden in his drafted brief (ibid., p. 277) and endorsed by the judges in their resolution in favor of bail. It was underlined by the crown's misrepresentation of the return in the Five Knights' case as a true cause (cf. n. 33 above) in the arguments of Berkeley and Heath (ibid., pp. 247, 281). The act abolishing Star Chamber in 1641 made provision for an obligatory writ of habeas corpus from King's Bench or Common Pleas in cases of imprisonment by the king or council, in return of which in open court the jailer was required to certify “the true cause of such his deteinour or imprisonment” and, three court days after, the return and bail were to be judged. In 1679, the Habeas Corpus Amendment Act laid down a comprehensive habeas corpus procedure (16 Car. 1, c. 10; and 31 Car. 2, c. 2; see Statutes of the Realm [1819, 1963], 5:110–12, 935–38)Google Scholar.

56 State Trials, 3:264Google Scholar. Gardiner's argument ([n. 5 above], 7:90, 96) that Eliot had not sued for a writ of habeas corpus in order to protect his associates in the light of his arguably more serious offense may well be correct. It is possible also that he feared construction of the writs by the judges as a reflection on the Petition and sued only after Littleton's case had been presented and when the prisoners were not brought to court to hear judgment of bail, for fear of establishing a precedent for arbitrary imprisonment. If he feared that the crown might enjoin the judges and either show an arbitrary cause or ignore the writs, he was correct. Eliot sued out his writ at the end of the Trinity term (ibid., p. 96).

57 Sir George Gresley to Sir Thos. Puckering, June 10, 1629, Birch, ed., 2:17.

58 See also Lucas to Dorchester, May 15, 1629, PRO, SP 16/142/85.

59 Birch, ed., 2:18; State Trials, 3:280–86Google Scholar.

60 State Trials, 3:281, 286Google Scholar.

61 Ibid., p. 281.

62 Ibid., p. 286.

63 In 1627 Heath had attempted to pervert the legal record as if the question of bail had been adjudged (and thus a binding precedent created) in favor of indefinite imprisonment for reason of state (Guy [n. 11 above], pp. 294–301).

64 State Trials, 3:284–85Google Scholar; Heath stated also that they had “declined” proceedings against them. This was not strictly true, as they had pleaded in Star Chamber against its jurisdiction, which plea could be found against them by judgment. Gardiner is not strictly correct in referring to a decision on the “legality” of the Star Chamber proceedings, as the hearing on jurisdiction had indeed begun a trial (see Heath's information in Star Chamber against Eliot, Selden, et al., May 7, 1629, PRO, SP 16/142/36; pleas of the defendants in Star Chamber, May 22, 1629, appealing to parliamentary privilege, PRO, SP 16/143/4–13; order of court and further pleas, PRO, SP 16/143/32, 144/11–15; see also Gardiner, 7:95).

65 State Trials, 3:281Google Scholar.

66 Ibid., pp. 244, 252.

67 Ibid.

68 Ibid., pp. 1087–1125; DNB, s.v. “Sir Robert Berkeley.”

69 “The case is new, and of great weight and consequence; and yet, under favour, the prerogative of the king, and the liberty of the subject, are not mainly touched therein; for the case is not so general as it hath been made, but particular upon this particular return” (State Trials, 3:244Google Scholar).

70 And in unhappy circumstances during the Long Parliament lord keeper (DNB, s.v. “Sir Edward Littleton”; Keeler et al., eds. [n. 51 above], 3:272; Clarendon [n. 54 above], 2:109–11; and see n. 54 above).

71 State Trials, 3:252Google Scholar.

72 In 1630, Eliot, Holies, and Valentine were ultimately tried, found guilty, fined £2,000, £1,000, and £500, respectively, and imprisoned at the king's pleasure, not to be released without being bound to good behavior and having made submission to the king and acknowledgment of their offenses (State Trials, 3:310Google Scholar).

73 CUL, MS Mm. 6.63.4, fol. 3v. It is not clear whether Littleton made the statement of loyalty in court. Of the case he wrote: “I knowe well, yt this cause is made to be of very greate expectation, in regard its apprehended [sic] to be of much importance to the crowne in its power, and of noe lesse consequence to the people in theyr liberties, which motives being accompanied with the rarenes of the matter (though noe stranger in our lawe) have bene iust grounds of the solemnity of argument and time of advise that have bene affoorded it” (ibid).

74 Whitelocke (n. 14 above), 1:38; Keeler et al., eds., 3:127–28.

75 What follows is a very brief summary of the extensive discussion in Reeve, “The Secretaryship of State of Viscount Dorchester” (n. 3 above), chap. 4.

76 Marquis de Chateauneuf to Cardinal Richelieu, August 12, 1629, PRO, French Transcripts (PRO) 31/3/66/140v.

77 Whitelocke, 1:38; State Trials, 3:286–87Google Scholar.

78 Viscount Grandison to Sir Thomas Roe, July 1629, PRO, SP 16/147/74; earl of Banbury to Dorchester, October 1629, PRO, SP 16/150/114; Dorchester to Sir Peter Wych (draft), October 15, 1629, PRO. SP97/14/330r: State Trials, 3:287Google Scholar; Birch, ed. (n. 22 above), 2:17–18; CSPV, 1629–32, pp. 75, 139, 142, 177–80, 183, 204–6; Reeve, , “The Secretaryship of State of Viscount Dorchester,” pp. 135–36, 141, 149–50Google Scholar.

79 State Trials, 3:288–89Google Scholar; Reeve, , “The Secretaryship of State of Viscount Dorchester,” pp. 150–51, 159–60Google Scholar.

80 State Trials, 3:294–310Google Scholar; Dorchester to Sir Oliver Fleming, March 3, 1630, PRO, SP 16/162/18; Reeve, , “The Secretaryship of State of Viscount Dorchester,” pp. 169–78Google Scholar.

81 Valentine was paroled briefly in 1630. Long was in prison under a Star Chamber sentence for quitting his shrievalty to sit in the last Parliament. (State Trials, 3:233–36Google Scholar; Grosart, A. B., ed., The Letter Book of Sir John Eliot, 1625–1632 [London, 1882], pp. 217–18Google Scholar; Fletcher, A., The Outbreak of the English Civil War [London, 1981], pp. 257, 340Google Scholar; Hulme, H., The Life of Sir John Eliot [London, 1957], p. 391Google Scholar; DNB, s.w. “John Selden,” “Sir Miles Hobart,” “Denzil Holies,” “Benjamin Valentine,” and “William Strode.”)

82 State Trials, 3:310–15Google Scholar.

83 See also, inter alia, the Five Knights' case and the prosecution of SirCotton, Robert and others in Chamber, Star (State Trials, 3:1 ff.Google Scholar, 387 ff.). On the link between the King's Bench and Cotton cases, see Reeve, “The Secretaryship of State of Viscount Dorchester,” chap. 4.

84 Cust, R. P., “The Forced Loan and English Politics, 1626–28” (Ph.D. thesis, University of London, 1984)Google Scholar; I am grateful to Dr. Cust for allowing me to cite his thesis. Russell, , Parliaments and English Politics (n. 2 above), pp. 70–84, 323 ff.Google Scholar

85 Chateauneuf to Richelieu. July 27 and August 12, 1629, PRO, PRO 31/3/66/132r, 139v–141r; Reeve, , “The Secretaryship of State of Viscount Dorchester,” p. 279Google Scholar.

86 Thompson, C., “The Divided Leadership of the House of Commons in 1629,” in Faction and Parliament, ed. Sharpe, K. M. (Oxford, 1978)Google Scholar, and “The Origins of the Politics of the Parliamentary Middle Group, 1625–1629,” Transactions of the Royal Historical Society 22 (1972): 71–86CrossRefGoogle Scholar; Newton, A. P., The Colonizing Activities of the Early Puritans (New Haven, Conn., 1914)Google Scholar; Hibbard, C. M., Charles I and the Popish Plot (Chapel Hill, N.C., 1983), p. 32Google Scholar; Russell, , Parliaments and English Politics, p. 424Google Scholar; Calendar of State Papers, Colonial, 1574–1660, p. 123.

87 The negotiations between the king's government and the Commons' leaders in the last week of February 1629 foundered on the conflict between Eliot and Selden's desire to punish the customs officers and the king's refusal to allow it (CSPV, 1628–29, pp. 579–80; Thompson, , “The Divided Leadership of the House of Commons in 1629,” p. 270Google Scholar and passim; Cooper, J. P., “The Fall of the Stuart Monarchy,” in Cooper, , ed. [n. 4 above], p. 558Google Scholar; see also Russell, , Parliaments and English Politics, pp. 380–82, 424Google Scholar; Hibbard, chaps. 8, 9; CSPV, 1628–29, pp. 516, 518–19; Magurn, ed. (n. 18 above], pp. 334–35; Adams, S. L., “Spain or the Netherlands? The Dilemmas of Early Stuart Foreign Policy,” in Before the English Civil War, ed. Tomlinson, H. [London, 1983], p. 83)Google Scholar.

88 Berkeley and Selden both pointed out the novelty of the issue (State Trials, 3:244, 265)Google Scholar.

89 Russell, , Parliaments and English Politics, p. 5Google Scholar.