House of Lords Journal Volume 6: 8 September 1643

DIE Veneris, 8 die Septembris.

PRAYERS.

The Lord Grey was appointed to be Speaker this Day.

The Messengers sent Yesterday to the House of Commons do return with this Answer:

That they do (fn. 1) agree to the Ordinance touching the Irish Rebels, with the Alterations made by their Lordships.

Report of the Conference, concerning the Covenant from Scotland.

The Speaker reported the Effect of the Conference Yesterday with the House of Commons; which was, To communicate to their Lordships a Covenant, sent from the Kingdom of Scotland, to be approved of by the Parliament, and to be taken by this Kingdom; which said Covenant the House of Commons referred to the Consideration of the Assembly of Divines, to receive their Opinions concerning the Lawfulness of the taking of the same, in Point of Conscience; and, after a serious Debate of the same, the Assembly made Report of their Opinions: Upon which the House of Commons took the Merits of the said Covenant into Consideration, and have thought fit to make some Alterations and Explanations, which they offer to their Lordships Consideration."

Then the Covenant was read, with the Alterations made by the House of Commons.

Next, was read, "The Report of the Assembly of Divines to the House of Commons, as the Judgement of the said Assembly."

Next, was read, "Reasons why the House of Commons thinks fit to suspend the Fifth Article."

and concerning the Excise.

Next, was reported, "That the House of Commons have presented to their Lordships Consideration an Ordinance for settling of the Excise; the former Ordinance being in many Parts defective, and many Obstructions against it: Therefore the House of Commons hath thought fit to frame and pass another, and annul the formen"

Ordinance for settling it.

The said Ordinance for settling the Excise was read, and taken into Consideration; and this House Agreed to the same, with this Alteration in the Eleventh Article, ["That Monies are not to be issued out without Order of both Houses of Parliament"].

Sent to the H. C.

A Message was sent to the House of Commons, by Sir Edward Leech and Doctor Aylett:

To deliver to them the Ordinance concerning the Excise; and to let them know, that their Lordships do agree to the same, with One small Alteration.

Justice Berkley's Trial, concerning Ship-money.

The Committee of the House of Commons being at the Bar, to manage the Evidence against Mr. Justice Berkley, upon the Impeachment of the House of Commons, concerning so much of the Charge as concerns Ship-money only, touching the Opinion and Judgement:

Then, by the Direction of this House, the Gentleman Usher of the Black Rod brought Mr. Justice to the Bar; where, after he had kneeled as a Delinquent, he being commanded by the Speaker to stand up, the Committee of the House of Commons proceeded in the Charge; and desiring, "That whereas the House of Commons had impeached Mr. Justice Berkly, and brought up divers Articles against him, they intend to proceed against him upon the Fourth, Fifth, and Sixth Articles, which concern Ship-money."

Then the Lords commanded the said Articles to be read, in bæc verba. (Here enter the Articles.)

Then Mr. Maynard desired, "That Mr. Justice Berkeley may have this Question asked him; Whether he did give his Opinion, and subscribed the said Opinion?"

Mr. Justice Berkeley did desire Leave of this House, "That he might have Liberty First to make a Protestation, before he speaks any Thing of the Matter." And this House gave him Leave to do it. And then he said, "He cannot but take Notice of the Supreme and unquestionable Votes of both Houses of Parliament, concerning the Judgement against Ship-money; to which Votes he humbly (fn. 2) submits, against which he will not speak One Syllable."

Then he confessed, "That about Hill. Term, 11° Car. the Lord Chief Justice Fynch came to his Chamber at Serjeants Inne, and told him he had a Case to deliver to him from the King; and he was to deliver his Opinion in it." He confessed, He read and considered of it; and he did subscribe to the Opinion now read; and he subscribed to it as his Opinion, as he (fn. 3) then thought the Law to be."

Next, he was asked, "Whether the rest of the Judges did not subscribe the said Opinion, as it is charged?" He answered, "That the 6th of February, the Lord Chief Justice Brampston sent to meet all the Judges at Ser'ts Inne; and there acquainted them, that he had received a Letter from the King, and a Case inclosed, which he was to communicate the same from Him; and that His Majesty required them to subcribe their Opinions: That the said Letter and Case was read, being the very same as is in the Charge; and, upon Consideration, it was (fn. 4) carried by the major Part; and all the Judges subscribed the same, as their Opinion."

And he being asked, "Whether he delivered his Opinion in the Judgement in Mr. Hampden's Case, as it is charged in the Impeachment, which was for levying of Money?"

And he confessed, "That, by Mr. Hampden's Plea of Demurrer, he conceived that Mr. Hampden had confessed the Necessity that Salus Reipublicæ periclitabatur; and he gave Judgement therein as he conceived then the Law to be; but since he is enlighted by the Votes of both Houses of Parliament since made: And did not do any Thing out of Malice, but out of Error of Opinion."

Next, Mr. Maynard and the rest of the Committee concluded with a short Reply, by Way of Aggravation, "That the Judgement was for Money, though the Opinion was not; that the Judgement in Mr. Hampden's Case was extrajudicial, and the Judges had no Cognizance of it; but they ought to have refused to give any Judgement in it, being so great a Concernment to the Commonwealth: There it is a Crime done to the whole Commonwealth, contrary to the Liberty of the Subject, destructive to the Privileges of Parliament and Being thereof, contrary to the Petition of Right, and Laws of this Kingdom.

That this Judgement was contrary to his Oath as a Judge, being sworn to do equal Right, and to give Counsel between the King and the Subject, according to Law, as 18 E. III Parl. Roll.

"That this Crime is more than Error of Judgement, though Judges have been questioned and judged in Parliament for false Judgement, and also Error of Opinion."

And concluded with a Desire, "That, the Matter of Fact being confessed, their Lordships would please to take the whole Case into their Consideration, and inflict such exemplary Punishment as their Lordships in their Judgement shall think fit."

Answer from the H. C. about the Ordinance for the Excise.

The Messengers sent to the House of Commons return with this Answer:

That they agree with their Lordships in the Ordinance for settling the Excise, with the small Alteration.

(Here enter it.)

Articles against Justice Berkley, from the H. C.

4. That the said Sir Robert Berkly, then being One of the Justices of the Court of King's Bench, and having taken an Oath for the due Administration of Justice according to the Laws and Statutes of this Realm to His Majesty's Liege People, on or about the last of November, 1635, subscribed an Opinion, in hæc verba:

I am of Opinion, That, as whereas the Benefit doth more particularly redound to the Good of the Ports, or Maritime Parts (as in Case of Piracy or Depredations upon the Seas), there the Charge hath been, and may be, lawfully imposed upon them, ac cording to Precedents of former Times; so, where the Good and Safety of the Kingdom (fn. 5) in general is concerned, and the whole Kingdom in Danger (of which His Majesty is the only Judge), there the Charge of the Defence ought to be born by all the Realm in general: This I hold agreeable both to Law and Reason.

5. That he, the said Sir Rob't Berkly, then being One of the Justices of the Court of King's Bench, and duly sworn as aforesaid, in February 1636, subscribed an extrajudicial Opinion, in an Answer to Questions in a Letter from His Majesty, in bæc verba:

CHARLES R.

When the Good and Safety of the Kingdom in general is concerned, and the whole Kingdom in Danger, Whether may not the King, by Writ under the Great Seal of England, command all the Subjects of this Kingdom, at their Charge, to provide and furnish such Number of Ships, with Men, Victual, and Munition, and for such Time, as He shall think fit, for the Defence and Safeguard of the Kingdom from such Danger and Peril; and by Law compel the doing thereof, in Case of Refusal or Refractoriness; and whether, in such Case, is not the King the sole Judge both of the Danger, and how the same is to be prevented and avoided?

C. R.

May it please Your Most Excellent Majesty,

"We have, according to Your Majesty's Command, severally every Man by himself, and all of us together, taken into serious Consideration the Case and Question signed by Your Majesty, and inclosed in Your Royal Letter; and are of Opinion, That, when the Good and Safety of the Kingdom in general is concerned, and the whole Kingdom 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, Victual, and Munition, 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.

"6. That he, the said Sir Robert Berkley, then being One of the Justices of the Court of King's Bench, and duly sworn as aforesaid, did, on the deliver his Opinion in the Exchequer Chamber, against John Hampden Esquire, in the Case of Ship-money, That he, the said John Hampden, upon the Matter and Substance of the Case, was chargeable with the Money then in Question; a Copy of which Proceedings and Judgement the Commons of this present Parliament have delivered to your Lordships."

Ordinance to prevent the coming over of Irish Rebels.

"Whereas very many of the Irish Rebels have lately come over into this Kingdom, and joined themselves with the Army against the Parliament, where they have exercised their accustomed Cruelties upon the King's Protestant Subjects here, and still endeavour to destroy all those that are well-affected to the Religion and Liberty of this Nation; and whereas the miserable Condition of that Kingdom of Ireland is such, that if many Soldiers of the English Army there should at this Time come over hither, and desert that Service, it would in all Probability be the utter losing of that Kingdom, and the delivering up of all the Protestants there into the Hands of those inhuman cruel Rebels: For the preventing of which Mischiefs and Inconveniences, it is Ordered and Ordained, by the Lords and Commons assembled in Parliament, That from henceforth no Ship, Bark, or other Vessel, do bring, convey, or transport, any Person or Persons whatsoever, out of the Kingdom of Ireland, into this Kingdom of England, or Dominion of Wales, except Merchants, and such as shall come upon special Business to the Parliament, either from the Lords Justices of Ireland, or from some Chief Commander in the English or Scottish Armies there; or shall have Licence to be transported from thence hither by both Houses of Parliament, upon the Penalty of Forfeiture of such Ship, Bark, or other Vessel, with her Tackle and Furniture, in which any such Person or Persons shall be so brought over or transported: And it is hereby Ordained and Declared, That whosoever shall first seize and take any such Ship, Bark, or Vessel, in which there shall be any Person or Persons passing from Ireland into this Kingdom (other than such as are above excepted), such Person so seizing shall have the Moiety of such Ship, Bark, or other Vessel, with her Tackle and Furniture; and are to be accountable to the State for the other Moiety, whereof they are to give speedy Notice unto the Committee of the House of Commons for the Navy; and whatsoever any Person shall do in Pursuance of this Ordinance, they shall be saved harmless by the Power of both Houses of Parliament."

Adjourn.

House adjourned till 10^a cras.