Die Martis, videlicet, 24 die Maii.
Lord Privy Seal sat Speaker this Day.
Beauvois, Chaplain to the Earl of Dorset, Privilege.
Ordered, That Mr. Beauvois, Houshold Chaplain
to the Earl of Dorsett, and owned so by his Lordship,
being arrested contrary to the Privilege of Parliament,
shall be released forthwith.
Lady Hastings Petition referred.
Upon reading the Petition of the Lady Lucy Hastings;
it is Ordered, To be referred to the Consideration of
these Lords following, who are to report their Opinions
thereof unto this House:
To meet when they please.
Earls of Bedford and Portland.
Ordered, That the Cause of the Earls of Bedford
and Portland shall be heard the First Day in Michaelmas
Term next, in this House; and that all Witnesses formerly appointed shall attend at the same Time. In the
mean (fn. *) Time, the quiet Possession is to be continued,
until it be evicted according to Law.
Justice Berkley's Trial.
This Day being appointed for the Trial of Justice
Berkley, upon the Impeachment of High Treason, and
other great Misdemeanors; it was moved, "That a
Steward may be appointed, during the Time of this
Ld. Privy Seal to be Steward.
It is Resolved, upon the Question, That the Lord
Privy Seal shall be Steward, for the Trial of Mr. Justice
Message to the H. C. that the Lords are ready to proceed in the Trial.
A Message was sent to the House of Commons, by
Sir Robert Rich and Mr. Page:
To let the House of Commons know, that their Lordships are ready for the Trial of Mr. Justice Berkeley.
The Answer returned was:
That the House of Commons will send up some
Members of their House, presently, to manage the Evidence against Justice Berkeley.
The Members of the House of Commons being
come, the Gentleman of the Black Rod brought Mr.
Justice Berkeley to the Bar; and after he had kneeled at
Then it was left to the Committee of the House of
Commons to manage the Evidence as they thought
good: Hereupon Mr. Pierpoint said,
That the Knights, Citizens, and Burgesses of the
House of Commons, having, in their own Name,
and in the Name of all the Commons of England, accused Mr. Justice Berkeley of High Treason, and
other great Misdemeanors, and, in Maintenance of
their said Charge, [ (fn. *) having exhibited] certain Articles against him, to which he hath pleaded, Not guilty
in Manner and Form as is alledged; he desired, in
the Behalf of the House of Commons and of all the
Commons of England, that the said Articles may (fn. †) be
read, and that the Witnesses may be heard, to prove
The Articles were read.
Next, Justice Berkeley's Answer was read, which he
made the 26th October, 1641, which was, Not guilty.
Then Serjeant Cressold desired, he being One of the
Judges in the King's Bench, "That his Oath, which he
took when he was made Judge, might be read;"
which accordingly was done.
The Charge against Justice Berkley opened.
Serjeant Cressold proceeded, and opened the Charge,
That he endeavoured to subvert the fundamental
The latter Part, that he hath acted it, by Words,
Opinions, Actions, and Judgement.
1. Words. In some Cases, Judges are above the
That there was a Rule of Law, and a Rule of
That was a Way to bring upon the People a Fear
2. For his Opinions, Actions, and Judgement, they are contrary to his Oath, as
||That he would serve the King and People in the Law.
Verba et Acta exteriora indicant interiora.
Sir Edward Cooke in Com.
Justice is the Daughter of the Law, and she brings
The Law doth much intrust the Judges: 25 Ed. III.
Treason to kill a Judge doing his Office.
Then Mr. Nicholas said, "That this general Article
is proved by the particular Articles following.
Desired to have Leave hereafter to make Use of
comparing Articles with another, to prove the Treason.
He hath endeavoured to set up arbitrary Government:
1. In the King; as by Words spoken in the Eight
2. In himself and his Fellow Judges, that the Judges
in some Case are above the Laws.
The Second Article was a Rate set upon Corn,
contrary to the Statute 25 H. VIII. and to set up an
excessive (fn. †) Rate upon Corn.
Observ. The First Time when this Corn was rated
Caroli, when a Commission was voted by the Parliament to be illegal, and brought in and canceled;
after the Parliament broke, there was Excises devised,
to bring in a Revenue to (fn. †) the King, and so to keep
This being referred to the Judges, Judge Berkley
delivered his Opinion, That Corn was within the
2. The Consequence and Illegality of it. Never
any such Opinion before was delivered: It was directly against the Letter of the Statute.
To prove that Mr. Justice Berkeley did give his Opinion concerning prizing of Corn within the Statute of
25 H. VIII, these Witnesses were produced:
16 Nov. 8 Car.
Baron Trevor said, "This Opinion was delivered
long ago, upon a Reference to the Judges at Serjeants
Inn: That some of the House of Commons desired
him to tell them, whether Judge Berkley was of Opinion the prizing of Corn was within the Statute.
The greater Number was, That Corn was not; and
the lesser Number was, That it was, whereof Judge
Berckley was One.
Lord Chief Baron deposed, "He doth verily think
that Justice Berkley did deliver his Opinion, That it
was within the Statute the prizing of Corn.
Judge Crawley said, "At the Reference, every Man
did deliver his Opinion severally; and Judge Berckley
did give his Opinion, That it was within the Statute."
Then it was desired, "That, if Judge Berkley had
any Answer to give in this Article, that he doth it
before the proceeding to another Article.
Justice Berkley's Answer.
Sixty-three Weeks a Prisoner, a miserable Man,
languishing under this great Burthen of this Charge
of the Honourable House of Commons, whom he
honours and prays for:
He cannot [ (fn. *) deny but], in regard of his Errors in
the Shipping Business, he hath given the House of
Commons great Cause to be offended with him, against
which an Act of Parliament hath (fn. †) passed, to which
he submits: But as for Treason, though he stands
accused by the Great House of Commons of High
Treason, he thanks God he hath a Thousand Witnesses for him, his Conscience, that he is clear from
Although he wants the Help of Counsel, yet he
hopes upon their Lordships Wisdom, Justice, Clemency, and Mercy will be for him, in those Things
which come before them.
He desired the House of Commons to be pii Inimici,
and desired a Trial without Interruption.
In February was Twelvemonth, he was accused of the
H. C. and then committed in July last. The H. C.
in Maintenance of the General exhibited Articles.
In October last, he made his Answer thereunto,
which he doth still aver. He professed, he would use
no Falsehood nor Prevarication for himself.
He desired he might make Two Motions, before
1. His Witnesses will not stay in Town without
a Warrant, which he left to their Lordships Consideration.
2. He offered to their Lordships Consideration the
Legality of his Trial.
He cited the Statute of Magna Charta. Per Pares.
1 & 2 P. M. 33 H. VIII. to be in the same County
where the Treason was committed.
A false and peccant Judge is the greatest and devilishest Nusance to a King as can be. The First
Statute that punishes Judges is 9 H. III. 12 H. III.
25 Ed. I.
28 E. I. Articuli super Chartas. The Peine of this
Statute is, that Three Knights, &c. shall be chosen,
assigned under the Great Seal, and sworn to enquire and
1. Parl. 15 E. III. Rot. Parl. Trial to be in Parliament; now all repealed in the Second Parliament
of 15 E. III. 3 R. II. Rot. Parl. an Ambassador at
Genoa. It was but declared here to be Treason; his
Case was tried below.
Concerning his Charge of Misdemeanors, he said,
Heretofore there was Remedy at the Common Law,
as by the Records of old Time.
Judgement of Misdemeanors.
Edgar's Law, 959, translated by Lambert.
King Kannutus's Time.
18 E. III. Weyland's Case.
If a Judge be questioned for giving Judgement
against the Law, if it appear it was wilfully, maliciously, with a wicked Intention, or for Bribes or Corruption, it is punishable in this Court; but, if it be
done without any of these, he offers it to their Lordships Consideration and Judgement.
He said, he was made a Judge in Michaelmas Term,
Caroli: About the latter End of the Term, there
came a Reference, not (fn. *) in Writing, but a Proposition
to the Judges, whether the rating of Corn was within the Statute of 25 H. VIII. Cap. 2. Though this
Business was known to the other Judges, yet he did
not (fn. *) know of it, before he was called on a sudden. He
was of Opinion at (fn. *) that Time, That the rating of
Corn was within that Statute, by reason of the Preface of that Statute; but took it to be general, for
all Kind of Victuals; and, under that Reason, gave
his Opinion, but with no wicked Intention."
He said, "That the Commission of Excise is against
the Law and Liberty of the Subject; and he knew
that the Commission of Excise (fn. †) was canceled by the
Parliament, as being against Law."
Mr. Nicholas replied:
Mr. Nicholas's Reply.
1. That Mr. Justice Berkley hath confessed he
gave his Opinion concerning Corn, but it was an
Error of his Judgement; but that there can be any
such Construction made as he would make, the Statute
cannot bear it; for Corn is an especial Victual.
The Archbishop of Cant. Case. Bishops are left
Mr. Pierpoint's Reply.
Mr. Pierpoint replied, "That, concerning Justice
Berkley's pleading to the Jurisdiction of this Court,
he hath already submitted to this Course by his Plea;
and this Course hath been adjudged in Benyon's
Justice Berkley desires Warrants for his Witnesses.
Mr. Justice Berkeley desired their Lordships to take
into Consideration to have a Warrant for his Witnesses.
They were commanded to withdraw, having done the
The House taking this Desire into Consideration,
what Time to give for the next Day of Trial:
Further Proceeding in his Cause.
It is Ordered, That this Day Three Weeks this Trial
shall be further proceeded in; and that he shall have a
Warrant for to bring his Witnesses, which are concerning
Misdemeanors; and that he shall have Liberty to go
abroad, with such a Person as the Sheriff will answer
Message from the H. C. for a Conference about the Adjournment of the next Term. For the Lords to sit To-morrow.
A Message was brought from the House of Commons; by Mr. Morley:
1. To desire a Conference, concerning the (fn. *) Adjournment of the next Term.
2. To let their Lordships (fn. †) know, that the House of
Commons have appointed their House to sit To-morrow,
after the Sermon; and they desire their Lordships would
And for Men to be raised for Ireland. 1000 l. to be paid to Captain Armstrong.
3. To present to their Lordships an Ordinance of
Parliament, made by the House of Commons, for raising
Men for Ireland; and an Order, wherein they desire
their Lordships Concurrence, for Payment of One
Thousand Pounds to Captain Armestronge; and another
Ordinance, to raise One Thousand Men for the Sea
Adventurers for Ireland.
The Answer returned was:
Answer to the H. C.
That this House will give a present Conference: As
for sitting To-morrow after the Sermon, and the Order
for paying the Thousand Pounds, this House agrees
with the House of Commons therein: As for the Two
Ordinances, this House will send them an Answer, by
Messengers of their own.
Lord Pagett mustering the Trained Bands of Bucks.
A Letter was read, from the Lord Pagett, directed to
the Earl of Holland; shewing, "That he hath begun
the Musters of the Trained Bands in Bucks; and the
Country are very forward and willing to obey the Parliament.
Message from the H. C. with an Ordinance to be sent to the Committee at York.
A Message was brought from the House of Commons,
by Sir Jo. Hungerford:
1. Brought up an Order to be sent to the Committees at Yorke, and desires their Lordships Concurrence therein.
Commissioners to be sent to Lincolnshire and Hull.
2. To join with them, to send some Commissioners to
Lyncolneshire and to Hull.
And for a Conference, about the Safety of the Kingdom.
3. To desire that, at the Conference this Afternoon, they (fn. ‡) desire that the Conference may be enlarged, to deliver something concerning the Safety of
The Order was read, in hæc verba.
(Here enter it.)
The Ordinance passed.
Resolved, That this Ordinance shall pass, as it is now
Hull Committees appointed.
4. That Sir W. Strickland,
Sir W. Armyn,
|Mr. Jo. Hotham,
Mr. Hen. Darley,
Mr. Peregrin Pelham,
Or any Two of them,
Shall be appointed to repair to Hull, as a Committee,
to be assistant to the Governor there, upon such Orders and Directions as they shall receive from both
5. That Mr. Allured, Mr. Broxholme, and Mr. Henry
Darley, shall be the Persons appointed to go presently
Lincolnshire Committees appointed.
6. Sir Edward Aiscough,
Sir Jo. Wray,
Sir Anth. Irby,
Sir Christoper Wray,
|Sir W. Armyn,
To be sent into Lyncolneshire, to preserve the Peace
of the Kingdom, upon such Orders and Instructions
as they shall receive from both Houses.
The Answer returned to the House of Commons:
Answer to the H. C.
That this House agrees to the Ordinance, and approves of the sending the Commissioners to Hull and
Lyncolnshire; and that their Lordships will hear (fn. *) what
they shall offer concerning the Safety of the Kingdom.
Tenants of Sutton Marsh.
Ordered, That the Thousand Acres claimed by the
Tenants in Sutton Marsh shall be enjoyed by the Tenants
de bene esse, without Prejudice to the Title of either Side,
until the Cause shall be evicted by a due Course of Law.
Busby and Smith in Error.
Ordered, That the Writ of Error between Smith
and Busby shall be argued the Thursday before the next
Babb and Trelawny in Error.
Ordered, That the Writ of Error between Babb
and Trelawny shall be heard To-morrow Sevennight.
Order to the Committees at York, to publish Votes and Orders of Parliament.
It is Ordered, by the Lords and Commons in Parliament, That the Committee of both Houses now
resident at Yorke shall, for the better Direction of the
Sheriffs of the County of Yorke, and the Lord Mayor
and Sheriffs of the City and County of the City of
Yorke, deliver to them all Orders, Votes, and Declarations, of both Houses; which are to be put in
Execution by them, or any of them, or by any Officer or Minister subordinate to them, or either of them;
all which are, by the said Sheriff and by the Lord
Mayor and Sheriffs of Yorke respectively, to be communicated to the Head Constables and Petty Constables, and others whom it may concern; and the
Committees are likewise required to send to the High
Constables, and other inferior Officers, as there shall
be Cause, and to enquire whether they have received
and executed the said Orders; and are hereby authorized and enabled themselves to deliver the said
Orders, Votes, or other Declarations or Directions,
to the High Constables, or any other His Majesty's
Subjects, for their better Direction in obeying the
same: It is further Ordered, by both Houses, That
the Committees abovementioned shall require the
Sheriff of the County of Yorke, and the Lord Mayor
and Sheriff of the City and County of the City of
Yorke, that they do publish in all Market Towns, and
do give Notice to all Head Constables, and require
them that they likewise communicate the same to all
Petty Constables, That the Trained Bands ought not
to rise, or to be called together, by any Personal Command of His Majesty; but that such Commands, as
the Affairs now stand, are against Law, tending to the
great Disturbance and Danger of the Kingdom; and
that no Man can by Law be punished for not obeying such illegal Commands; but that such as, under
Colour of obeying the same, shall assemble together
in Arms are liable to be punished for it: And this
Order the said Committee is required to publish to all
His Majesty's loving Subjects, and to give out Copies thereof, as likewise of the former Votes, as they
shall see Cause.
Order for 1000 l. to be paid to Captain Armstrong and 27 Officers.
Ordered, by the Lords and Commons assembled
in Parliament, That the Twenty-seven Officers and
Captain Armstrong shall be forthwith paid One Thousand Pounds, being the Arrears of their Personal Entertainment of the Monies that came in upon the
Act of Contribution; and that the said Monies
shall be re-paid to the Treasurers appointed by that
Act, out of the Monies that shall come in upon the
Bill of Four Hundred Thousand Pounds; and
that the Treasurers appointed by the said Act of
Contribution are hereby required to pay the said
Monies to Sir William Udall, Treasurer at War in the
late Northern Expedition, to be paid to the said Officers as aforesaid.
The House appointed the Earl of Leycester to sit as
Declaration to be printed.
Ordered, That the last Declaration shall be printed
and published; and that the Lord Robartes is appointed
to peruse the Records, which shall be printed with them.