Tyranny denied: Charles I, attorney general heath, and the Five Knights' Case

Historical Journal

Volumn 42, Issue 1, 1999, Pages 53-83

  Kishlansky, Mark ^a  

^a HARVARD UNIVERSITY   (United States)

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EID: 46049116466     PISSN: 0018246X     EISSN: 14695103     Source Type: Journal    
DOI: 10.1017/S0018246X98008279     Document Type: Article

References (174)

1. The author would like to thank Tom Cogswell, John Guy, Peter Lake, John Morrill, Kevin Sharpe, and David Smith for their comments on early drafts of this essay and Paul Halliday and Catherine Patterson for discussions on King's Bench procedure.
2. J. P. Kenyon, The Stuarts (London, 1958), p. 64.
3. T. B. Macaulay, Critical, historical, and miscellaneous essays and poems (London, 1885), iii, p. 375.
4. Michael Young, Charles I (Basingstoke, 1997), pp. 49-50.
5. D. L. Smith, A history of the modern British Isles (London, 1998), pp. 71-2.
6. R. P. Cust, The forced loan and English politics (Oxford, 1987), p. 238.
7. Young, Charles I, p. 53.
8. L. J. Reeve, Charles I and the road to Personal Rule (Cambridge, 1989), p. 19.
9. Glenn Burgess, The politics of the Ancient Constitution (Basingstoke, 1992), pp. 194, 199.
10. J. S. Morrill, The nature of the English Revolution (London, 1993), p. 289.
11. See also Brian Quintrell, Charles 1, 1625-1640 (London, 1993), p. 37. 'One major issue was the way in which the Attorney general, Heath, and behind him the King, had sought to tamper with the records of the court of King's Bench after it had refused bail to five of the knights held in custody.'
12. Kevin Sharpe, The Personal Rule of Charles I (New Haven, 1992), p. 662.
13. Sharpe draws this suggestion from Roger Lockyer who reasoned that since Charles was no lawyer, these complicated machinations would have escaped him. However, Lockyer also argued that Charles might not understand' the details of Heath's devious manoeuvres, but he would have undoubtedly approved' of them. Roger Lockyer, The early Stuarts (London, 1989), p. 225.
14. J. A. Guy, 'The origins of the Petition of Right reconsidered', Historical Journal, 25 (1982), pp. 289-312. Many of the details of these events were first uncovered by Frances Relf, The Petition of Right, University of Minnesota Studies in the Social Sciences, 8 (Minneapolis, 1917).
15. Guy, 'Origins', pp. 296, 297. Guy used the word 'pervert' ten times and the word 'felony' or 'felonious' five times to describe Heath's actions.
16. Ibid., pp. 298, 311.
17. Ibid., p. 310.
18. Ibid., pp. 311-12.
19. Ibid., pp. 289-go and esp. n. 5 where sources are discussed. The records of the upper house as well as the materíals concerning the issues of Heath's actions and Selden's accusations are now conveniently available in volumes v and vi of R. Johnson, M. Keeler, et al., eds., Proceedings in parliament 1628 (6 vols., New Haven, 1977-83) (hereafter cited as P in P 1628).
20. Stephen D. White, Sir Edward Coke and 'the grievances of the commonwealth' (Chapel Hill, 1979). pp. 224-5.
21. Guy, 'Origins', p. 294. The essential difference between the entry on the controlment roll and the order book are the words quousque etc. which, as we shall see, meant different things to different people.
22. Ibid., p. 295.
23. Selden even cited Matthew Paris's Chronicles. T. B. Howell, ed., A complete collection of slate trials (London, 1816), in, p. 18.
24. In the debate over precedents in the conference between representatives of the Commons and Attorney General Heath, Selden complained of the use of'a paper in a clerk's trunk'. P in P 1628, 11, p. 502.
25. Moreover, in debating Heath on 17 April, Selden attempted to explain an ambiguity in one of his precedents by arguing from 'a rule of the court which was cited out of the rule book of the Court of King's Bench'. P in P 1628, 11, p. 498.
26. Guy, 'Origins', p. 296.
27. Though Guy understands that 'John Selden was not correct when he told the Commons on 28 March 1628 that remittitur quousque, etc. was substantively different from remittitur in King's Bench practice' he does not follow the implications of Selden's error. In particular, Attorney General Heath could not have been motivated to change the entry on the controlment role in search of a binding precedent since he, the judges, and every other knowledgeable observer would know that the entry did constitute a binding precedent. Ibid., p. 295 n. 24.
28. It must be remembered that these plaintiffs desired a confrontation with the crown. Many refusers avoided imprisonment by delaying their response to the commissioners, pleading poverty or leaving their counties during the period of collections. Christopher Wandesford hid in what was probably a priest's hole whenever the collectors arrived at his door. J. P. Cooper, ed., Wentworth papers, 1597-1628 (London, 1973), pp. 266-7.
29. Others, like Sir George Radcliffe, refused to lend, but also refused to obstruct the service. He was treated leniently, even in prison. T. D. Whitaker, ed., The life and original correspondence of Sir George Radcliffe (London, 1810), pp. 138-9. Still others petitioned the privy council for release and pledged good conduct in return. This, apparently, was the course adopted by Sir Thomas Darnell himself. Only these four demanded a full legal process which might have resulted in trial and conviction.
30. The judges decided to make an interlocutory order, that is a temporary order pending further action, for two reasons: they were worried about being called to account for any judgement in parliament and they were concerned about the issue of perpetual imprisonment without remedy. As they subsequently explained, by not making a final judgement they kept alive the possibility that further habeas corpus proceedings could take place.
31. It is commonly believed that Charles dissolved this parliament to prevent the impeachment of Buckingham. On the contrary, he allowed the impeachment to proceed and only dissolved parliament after a remonstrance from the House of Commons demanded that Buckingham be sequestered whatever the result of his trial. W. B. Bidwell and M. Jannson, eds., Proceedings in parliament 1626 (New Haven, 1992), iii, pp. 440-1.
32. John Rushworth, Historical collections (London, 1721). 1, 397-8.
33. The best account of the background to the loan and the role of privy councillors in advising the king about it is found in Cust, Forced loan.
34. Viscount Saye and Sele was imprisoned for eight months in 1622 for criticizing the benevolence for the Palatinate. James also threatened to send refusers on military service: 'A merchant of London who had been a cheesemonger, but now rich, was sent for by the Council, and required to give the King £200 or to go into the Palatinate and serve the Army with cheese, being a man of eighty years of age.' Henry Ellis, ed., Original letters, illustrative of English history, second ser. (London, 1827), iii, p. 240. Marc Schwarz, 'Lord Saye and Sele's objections to the Palatinate benevolence of 1622', Albion, 4 (1972), pp. 12, 14.
35. Most resisters were initially summoned to London where they were either arrested or made to attend the privy council on a nearly continuous basis. In June 1627 it was decided to begin sending them into the country. Cust, Forced loan, pp. 58-60.
36. It appears that four of the five knights refused to leave London for their places of confinement. Edmund Hampden may have been too ill to leave. Acts of the privy council (APC), 1627-8, p. 58.
37. For Hampden, Calendar of state papers, domestic (CSPD), 1627-8, p. 205.
38. Writs of habeas corpus were of grace rather than right in King's Bench and were granted by the crown to allow the judges to make determination as to whether the crimes alleged against the prisoners were offences for which bail might be granted or a speedy trial set. The fact that habeas corpus was not a right became a central issue in the parliament of 1628 and one of the encroachments upon the royal prerogative made by the Petition of Right. Had the crown refused the petition for writ of habeas corpus, as it was entitled to do, it would then have been open to the charge of arbitrary, perpetual imprisonment. By choosing to grant the writ on the return of' special commandment' it was attempting - unsuccessfully as it turned out-to insulate itself from this charge.
39. There was no 'prevarication' on the part of the privy council which returned answer to the wardens on 7 November. Burgess, Politics of the Ancient Constitution, p. 191.
40. APC, 162 7-8, p. 131.
41. The delay in the case involved Darnell, not the privy council. State trials, iii, p. 3.
42. As Cust observed: '[Charles I] remained extremely respectful of the tradition whereby English monarchs took the advice of their Council before embarking on particular policies, often deferring to their judgement even where he had shown every sign of committing himself in another direction. 'Cust, The forced loan, p. 42.
43. See the sophisticated discussion of these issues in G. L. Harriss, 'Aids, loans and benevolences, 'Historical Journal, 6 (1963), pp. 1-19.
44. APC, 1627-8, pp. 217-18.
45. It was resistance rather than refusal that was the core issue for Charles as it was for the plaintiffs and their attorneys. This was to be the crux of the sedition case in 1629 as well when Charles offered bail on condition of good conduct and Selden, Holles, Valentine, and Strode refused it.
46. This fact leads to one of the great misnomers in English legal history, for though the case is known either as Darnell's Case or the Five Knights' Case, Darnell was not a party to it and there were only four knights who pled for bail.
47. I have called the remaining four knights the plaintiffs since it was they who sued for relief by writ of habeas corpus. In some contemporary accounts they are called the defendants since they were in jail.
48. There can be no question but that at the trial the plaintiffs' counsel produced precedents of imprisonment by special commandment of the king in attempting to show that such prisoners had been bailed though these cases vitiated the prior claim that such imprisonment was illegal.
49. State trials, iii, p. 8.
50. It is now appreciated by historians that the accounts in State trials are composites of various manuscripts and that their absolute accuracy must be questioned. Paul Christianson, however, has verified this account in relation to Selden's contributions and comparison with Heath's manuscript notes leads to the same conclusion. Paul Christianson, Discourse on history, law, and governance in the public career of John Selden, 1610-1635 (Toronto, 1996), p. 341 n. 122. PRO, SP 16/85/40-3, 66-73, 85-102.
51. Thomas Birch, The court and times of Charles I (London, 1848), 1, p. 292.
52. State trials, iii, pp. 49-50.
53. Ibid., iii, pp. 50, 53.
54. On the previous day after the final argument by Heath, Hyde had addressed the plaintiffs' lawyers: 'Touching such precedents as you urged in some of them, we know there is something urged which makes not for you, so you have omitted some material things to be shown. 'Ibid., iii, p. 50.
55. This was a reference to a number of precedents in which the plaintiffs had shown that men committed by special command had been bailed but had neglected to add that though imprisoned by special command they had also been bailed by special command. Heath cited Beckwith's and Raynor's cases as examples, ibid., iii, pp. 47-8.
56. Mead's London correspondent, whose account reads like an eyewitness, wrote: 'His Lordship said, moreover, that the precedents alleged by the pleaders was brought in by halves, as if they had uttered that only which was for them, but concealed the rest.' Birch, Court and times, 1, p. 295.
57. State trials, iii, pp. 31-2.
58. Though it was concluded by Selden among others that there could be no relief by habeas corpus after the judges remanded the plaintiffs back to prison this was not true in law for each writ would be treated separately. The judges insisted that a refusal to bail in the first instance was not a refusal to bail perpetually and Whitelocke stated definitively: 'Objection: they might have been kept in prison all their life. Response: No, this was the first return. 'P in P 1628, v, p. 222.
59. Guy, 'Origins', p. 293 n. 15.
60. I do not believe Guy's conclusion on this point to be factually correct. 'There was little point in seeking further writs of alias habeas in political actions at this time, because a rule of King's Bench would not be changed unless new factual grounds were produced to show that bail could be granted, which could never happen until the returns to writs of alias habeas were amended by the Crown to reveal the "cause of the cause" of detention. 'Ibid., p. 293. The plaintiffs could have been bailed on another writ of habeas corpus without the 'cause of causes' being shown if the crown directed the judges to do so by special command. This was the gravamen of the precedents cited by the plaintiffs' counsel in their argument for bail.
61. P in P 1628, v, p. 223.
62. State trials, iii, p. 59.
63. See Sir Edward Coke's views as cited by White, Sir Edward Coke, p. 234.
64. P in P 1628, V, p. 231.
65. Ibid., V, p. 219.
66. Ibid., 11, p. 152.
67. On the narrow legal question of whether the king had this right, the judges could only look to the form of the return made in the habeas corpus case. This specified per speciale mandatum domini regis, and this was a form known to the court. Therefore the constitutional question could never arise despite efforts by the plaintiffs' counsel to make it an issue.
68. Guy, 'Origins', p. 292
69. quoting the King's Bench order book: Ordinatum est quod defendentes remittuntur separalibus prisonis ubicunque antea fuerunt salvo custodiendo quousque, etc. Guy writes '"quousque, etc.",or to expand the King's Bench abbreviation, "quousque secundum legem deliberati fuerint" - "until they have been delivered according to law"'. The glossary in P in P 1628, 1, pp. 100-1, translates this same phrase in two ways, s.v. 'quousque secundum legem deliberatus fuerit' where it is 'until they have been delivered according to law' and s.v. 'remittitur quousque secundum legem deliberatus fuerit' where it is 'until there has been deliberation according to law'. Whitelocke explained the meaning 'remittitur quousque., id est, until the court might be better advised' which carries the meaning of deliberation rather than delivery. All five accounts from that day have the identical language of 'advise.' Ibid., v, pp. 217, 219, 222, 224, 226.
70. The controlment roll was a parchment record that would constitute a binding precedent and as Heath had argued to the judges in refuting the precedent of Wenden's case 'the roll saith remittitur and is that a warrant for them to say that he was delivered?' State trials, iii, p. 47.
71. P in P 1628, v, p. 230.
72. Ibid., v, p. 232.
73. Jones was franker still: 'We did this out of discretion whatsoever our opinion is.' Ibid., v, p. 230.
74. The judges further argued that their action constituted an advice of the court rather than a final judgement because it was read out only by the chief justice and not attested by each of them, junior to senior, as was usual. This was a very subtle signal if the report of Chief Justice Hyde's statement at the conclusion of the case is accurate: 'my brothers have enjoined me to deliver to you the resolution of the whole court; and therefore, though it be delivered by my mouth, it is the resolution of us all'. State trials, m, p. 51. It seems certain that the judges were trying to walk a tightrope between complaint by the king or complaint by parliament.
75. This was Justice Jones's testimony: 'Left without determining the business. No directions for entry.' P in P 1628, v, p. 238.
76. Guy speculated that because the writs of the case were filed in Hilary term though the case had been heard in Michaelmas they 'were kept out until the beginning of March 1628 in connection with the special entry planned by Sir Robert Heath'. It was equally likely that they were kept out awaiting the ruling by the judges. Guy, 'Origins', p. 292 n. 12.
77. Guy's assertion that Heath' had learned at the end of 1627 that the one complete official entry of the decision in the five knights' case was in the rule book' cannot be substantiated. Guy, 'Origins', p. 295.
78. There is no evidence to the effect that Heath had viewed the rule book or that he concluded that it contained 'the one complete official entry'. What seems certain is that he had viewed the controlment roll, which was his own working record. Whether he wished the special judgement to be placed on the Coram Rege roll or the controlment roll is impossible to ascertain. The fact that the Coram Rege contained no notice of the case at all makes it at least as likely a candidate as the controlment roll.
79. Justice Whitelocke had to explain to a suspicious House of Lords that they could only reviewby writ of error a judgement of the court of King's Bench and as there had been no judgement, there was nothing to review. P in P 1628, v, p. 219.
80. See also J. S. Flemion, 'A savings to satisfy all: the House of Lords and the meaning of the Petition of Right', Parliamentary History, 10 (1991), p. 33.
81. This is a crucial point to which I will return. On 25 March Selden, Phelips, and Sir Edward Coke all spoke as if a judgement had been made. P in P 1628, 11, pp. 99-101.
82. P in P 1628, 11, p. 229.
83. It is not clear who made this remark, Heath, Keeling, or Harvey, one of the clerks in the office. See Selden's notes of the examination, ibid., vi, p. 41.
84. Guy's gloss on it is highly prejudicial to Heath, especially since, as he points out, the records of the case had not been sewn into the Michaelmas roll. Guy, 'Origins, 'p. 297 n. 28.
85. I have been unable to determine how unusual such a request might have been. Other evidence suggests that Heath had been involved in constructing the judgements recorded on rolls in certain cases, though not in previous habeas corpus cases. The circumstantial evidence all points to this request as unexceptional; neither Keeling nor the judges made it an issue and Selden's complaint was about the content of the judgement, not the fact of the request. Nevertheless, there may have been a more subtle negative reaction that would not come out in the written record.
86. P in P 1628, vi, p. 41.
87. Ibid., v, p. 230.
88. The information that the king pressed Heath to secure a copy of the judgement was revealed in a single sentence by Buckingham during a brief discussion of Heath's actions in the House of Lords. Ibid., v, p. 203.
89. Although Guy calls this admission 'an astonishing leak', from his point of view it was more astonishing that not a single member of the upper house commented upon it - 'the significance of his statement was almost completely obscured'. Guy, 'Origins, 'p. 300 n. 54.
90. Although Heath freely admitted that he had been pressed to obtain a copy of the judgement, he also said that the special judgement he had sought was based on his own initiative. 'That he did direct the clerk to make this draft out of the duty of his place for the King though he had no direction. 'P in P 1628, v, p. 203.
91. P in P 1628, v, p. 203.
92. That the draft was never redrawn is clear from the criticisms first made of it by Selden who described it as 'full of blanks'. Ibid., ii, p. 218.
93. Heath, himself, had been a clerk of enrolment in King's Bench during James's reign and thus knew how the office worked with attorneys general. I am grateful to Professor Catherine Patterson for providing me with examples of exchanges between the judges and the attorney general over the wording of decisions in King's Bench. The fact that the attorney general and the judges worked closely together does not, in itself, exonerate Heath, but it should remove the implicit suspicion that the suggestion of a special judgement was an attempt to pervert the record.
94. This is a translation made by the Yale Parliamentary History Center of the Latin draft that Selden presented to the House of Lords on 9 April. P in P 1628, 11, p. 353.
95. As it was to be entered after the entry of Sir John Heveningham (and thus to stand for all four cases) 'the aforesaid John' appears in all of the blanks. There is a more compressed account of what the draft said in one of the parliamentary sources that recorded it on the day Selden reported it to the house. Ibid., 11, pp. 211-12.
96. Ibid., 11, p. 229.
97. Selden reported that Keeling said: 'the Attorney wished him to make a special entry of the habeas corpus. He told him he knew no special entry.' Ibid., 11, p. 229.
98. Guy glossed this as: 'Keeling had replied that such an entry was foreign to King's Bench practice', rather than that Keeling did not know how to draw such an entry. But Selden's notes of Keeling's examination make clear that this is what he meant: 'Mr. Attorney spoke to him for a special. He not knowing how, desired the Attorney to draw it.' Guy, 'Origins', p. 297;
99. P in P 1628, vi, p. 41.
100. The speculation by the editors of Proceedings in Parliament that the special judgement 'actually had been put into and later was cut out of the controlment roll contradicts the testimony of every witness in the case. P in P 1628, vi, p. 40.
101. It also creates an impossible chronology as the judgement was not drawn until after Hilary term had ended and the rolls were examined before Easter term began. Guy has shown that missing membranes were not unusual as they were numbered at the beginning rather than the end of term. Guy, 'Origins', p. 301 n. 54.
102. P in P 1628, v, p. 203.
103. Ibid., 11, p. 235.
104. Ibid., 11, p. 212.
105. Ibid., v, p. 203.
106. Ibid., v, p. 220. The full entry reads: '4. We have been touched that we intended to enter a judgement and a judgement drawn. Mr. Attorney did the office of a good servant. But we all required Keeling not to make any other entry than the common and usual entry. We never saw that entry before it was read here.'
107. Jones, Dodderidge, and Hyde all told exactly the same story with slightly different details. None suggested there was anything unsavory about Heath's actions, let alone 'felonious'.
108. Ironically, one other body had the power to imprison by special command: parliament. The judges defended their trust in the king by citing the fact that they would have equal trust in the parliament when presented by a writ citing 'special command' as the cause of detainment.
109. Stale trials, 111, p. 49, 57.
110. P in P 1628, vi, p. 47.
111. Guy, 'Origins', pp. 295-6.
112. The accusation made by Selden against Heath actually took place on only two days, 31 March and 1 April, and does not appear ever to have been mentioned again in the House of Commons. Selden repeated it more mildly in a conference with a committee of the House of Lords on 7 April and Heath responded briefly on 12 April. It does not appear to have been mentioned again in the upper house. As Guy admits, 'the full impact of the arguments of Selden, Coke and Phelips on the minds of ordinary MPs cannot be accurately gauged from the diary accounts' though he does not add that this is because they were never mentioned after 1 April. Ibid., pp. 297-8.
113. P in P 1628, 11, p. 63.
114. The account of Phelip's speech in British Library Stowe MSS 366 has it: 'there are 3 great judgements upon us. The first, the judgement of the postnati; secondly the judgement of impositions upon a judgement in the Exchequer; thirdly, depriving of liberty and imprisonment by judgement.' P in P 1628, 11, p. 69.
115. Ibid., 11, p. 109.
116. Ibid., 11, p. 100.
117. Ibid., 11, p. 106 (Stowe MSS).
118. In another account of the same speech Selden said: 'Seven acts of Parliament were mentioned, and all were passed over, and only commended.' P in P 1628, 11, p. 100 (P & D).
119. A third version had it: 'the judgement given in the king's bench, a thing never done before'. P in P 1628, 11, p. 113 (Harl. 1601).
120. Though Selden's duplicitous conduct throughout the controversy over the Five Knights' Case should not rule out the second possibility, I think that he too was unaware of the judges' resolution.
121. Coke's precedents, P in P 1628, 11, pp. 100-2.
122. Ibid., 11, p. 100. Fanshawe opposed summoning Heath before the Commons: 'I do not remember that the Attorney or King's counsel ever came into this House to argue.'
123. 'I either did mistake or am mistaken', Phelips is reported to have said directly after Fanshawe spoke, though he went on to repeat his assertion that a judgement against the subjects' liberties had been given, changing tack a little by arguing that perhaps it had been given in haste. Ibid., 11, p. 100.
124. Cresheld's speech, ibid., 11, pp. 146-50;
125. Selden's speech, ibid., 11, pp. 150-2.
126. Ibid., 11, p. 152.
127. Shelton was very concerned that the Commons would censure the judges: 'I know this assembly will not tax them with suspicion or distrust.' Ibid., 11, p. 159.
128. Ibid., 11, pp. 173-4.
129. It is clear from Selden's later admission that he had learned there was a difference between remittitur and remittitur quousque from 'an ancient clerk' in the office that he was no expert in King's Bench record keeping. Sir Thomas Fanshawe attempted to correct his mistake immediately but Selden was either oblivious or was being deliberately obtuse. 'Sir Thomas Fanshawe. There are 4 quousque's upon a habeas 1, insufficient only 2, to be kept in our own prison. A Mar. remanent. 3, the case of bailing or traditur, 4, the remittitur.' Ibid., 11, p. 176.
130. Ibid., 11, p. 190.
131. Ibid., 11, pp. 192-3.
132. Coke was to be doubly embarrassed when Heath cited his similar opinion in the House of Commons in 1621. White, Sir Edward Coke, p. 246.
133. At least one of the hands was of Waterhouse, the underclerk to whom Keeling had given the assignment. The other seems to be that of one Harvey, another of the clerks in Keeling's office. P in P 1628, vi, p. 41.
134. P in P 1628, 11, p. 180. Selden (according to Newdegate's diary) stated: 'I am sure my client was sent back without any relation to the precedents... I asked at the Crown office what is the reason or meaning of quousque, etc., and I was told by an ancient clerk that it was until he should be delivered by order of law.' It is very hard to justify Selden's conduct or place any favourable construction on his contention that his client had been remanded 'without any relation to the precedents'. While he may have genuinely not known that there was no difference between remittitur and remittitur quousque and may have attempted to exploit the potential ambiguity, his assertions on 7 April before the Lords were refuted by the judges the following week and yet he insisted upon them in the debate with Heath on 16 April. Guy's excuse of Selden's 'frustration' is unpersuasive after 1 April. Guy, 'Origins', p. 293 n. 15.
135. P in P 1628, 11, p. 219.
136. Ibid., 11, p. 212.
137. Ibid., 11, p. 113 (Harl. 1601).
138. He is also recorded as saying that when Keeling approached the judges with the information that Heath wished a special entry' the judges he said would not assent other then the common judgement'. Ibid., 11, p. 232.
139. Guy follows Selden in arguing that the absence of 'quousque, etc.' creates an inherent ambiguity in all cases in which remittitur only appears. 'It followed that, if the terms remittitur and remittitur quousque, etc. were interchangeable, it was impossible for the Crown ever to prove in the aftermath of a rule of court that a prisoner's application for bail had been refused.' Guy, 'Origins', p. 295. This judgement commands respect, but since the state of precedents was that there were many cases in which commitment had been made by the king's special command and not a single one in which bail had been granted, the potential ambiguity did nothing to alter the weight of precedents.
140. I cannot find the evidence for Guy's assertion that the volume of opinions of Justice Anderson which was brought into the House on 1 April was 'compared with the copy of Heath's draft "judgement" already secured by Selden'. Ibid., p. 298.
141. Guy's citation is to all of the diaries for the entire day (n. 35:' CD 1628, 11, 229-41 '). Nor can I find the authority for the assertion that the text of Anderson's report 'served to convince M. P.s that the House was entitled to condemn Heath's special "judgement" as illegal before another entry was made on the controlment roll' for which Guy cites at n. 36: 'CD 1628, 1, 106; 11, 229-30, 232-3, 235-6, and n. 18 above, which was to 1, 106.' These citations are all to the interpretation of Anderson's judgement, but nowhere is there any suggestion of a condemnation of Heath, or even mention of him in connection with Anderson's judgement. What is notable is how in the subsequent debate no speaker ever returns to the story of Heath's draft once the entry in Anderson's MSS book is read. This suggests that its impact was minimal even on the day in which it was introduced by Selden.
142. P in P 1628, 11, p. 212.
143. Guy wrote: 'Apart from himself [Selden], at least two other of the House's acknowledged leaders in 1628 immediately appreciated the enormity of what had been attempted by the crown. 'Guy, 'Origins', p. 297. Phelips and Sir Edward Coke referred to the draft judgement after Selden's revelation but in the middle of speeches that had other subjects as their main matter. Wentworth commented that the matter should be further investigated, but that is all the attention Selden's revelation drew.
144. P in P 1628, 11, p. 353. It was this misrepresentation that had originally upset Phelips, Wentworth, and Coke on 1 April. The issue was not whether the judges had made a formal enrolment but whether their decision had been to justify perpetual imprisonment. There is nothing in Heath's draft to justify that interpretation and, indeed, it was to avoid such a misunderstanding of what the judges had done that Heath had probably wished the content of his draft to be enrolled.
145. Ibid., 11, p. 354.
146. Again Heath's draft stated: 'that after a review of the aforesaid return, as well as divers old records lying here in the court relating to similar causes, on the basis of mature deliberation of the fact that no special cause of seizure or detention of the aforesaid John is expressed, but only in general terms that he has been detained in the aforesaid prison by special command of the Lord King, therefore the aforesaid John is remanded to the aforesaid custody of the Marshal of the aforesaid Household saving the custody until etc.'.
147. In the account of the case in State trials, iii, 56, Chief Justice Hyde was particularly withering about the records in the cases of Beckwith and Raynor that Selden had supplied ('vide the record in Mr. Selden aforesaid'). Indeed, at the end of oral arguments Hyde instructed both sides 'you must bring in your precedents; for though we have seen some of them, yet some of them we have not seen'. Ibid., 111, p. 50.
148. In the Petyt MSS, which were Elsynge's own notes, Devonshire is recorded as saying: 'Having gone through these precedents; then somewhat else met with casually, viz., a draft of a judgement to be entered upon the late habeas corpus, a room being left for the same to be entered. Drawn up by direction of Mr. Attorney general. Unusual to bind forever.' P in P 1628, v, p. 181.
149. Selden's speech took up '60 sides close written' and the matter of Heath's draft was but a single paragraph within them. Ibid., v, p. 186.
150. Guy offers no direct citation for his assertion that 'the peers now saw plainly that the Crown's action and subsequent attempt to pervert the legal record had created an explosive situation'. There are no other references to Heath's action in the records of the Lords to judge that the peers connected this to the Commons' 'political manifesto'. Nor is there any citation to the subsequent assertion that the Lords' investigation of the judges 'served to cast in a sinister light Heath's earlier attempt to pervert the King's Bench records'. Guy, 'Origins', p. 302.
151. P in P 1628, v, p. 220. Dodderidgeproclaimed:'Hereis, I perceive, a question inter, remittitur, etc., and remittitur quousque, etc. He a judge long and practicer there long, never knew difference. The haste of the clerk sometimes omitted quousque, but et cetera always supplies what was else to be understood.' Ibid., v, p. 231.
152. Cf. Guy, 'Origins', p. 301. I concur with Guy's summary of the 'five fundamental points' but would add the rejection of the substantive case as a sixth and the rejection of Selden's spurious distinction as a seventh.
153. Guy does not offer any citation for his assertion that there was a' wide apprehension created since 1 April that Charles's government had effectively renounced its commitment to the rule of law by attempting to pervert the King's Bench records'. Guy, 'Origins', p. 307.
154. P in P 1628, 11, pp. 490-9. The conference was to dispute the reports made by Selden et al. on 7 April and replied to by Heath on 12 April.
155. Ibid., 111, p. 4.
156. When it was presented at the conference, summarized by Lord Keeper Coventry, Sir Edward Coke replied that the Commons' representatives had power only to hear 'that which is new. Therefore not to meddle with the resolution of the judges, but report it to the House.' Ibid., 11, p. 500.
157. On 19 May the House ordered the sub-committee to meet and two days later added new members to it. But there is no evidence that it ever did. Ibid., iii, pp. 464, 511.
158. Ibid., n, p. 500
159. for Coventry's speech. Ibid., iii, pp. 5, 10-11, 13, 16
160. for the variants of Digges's speech without the definitive statement that there was no difference between remittitur and remittitur quousque. It is interesting to note that in his report of the entry that had been made one diarist recorded Digges as saying that the plaintiffs had been remanded 'with a remittitur in the usual way' while another recorded the clerk had made 'an ordinary entry of remittitur quousque'. Ibid., 111, pp. 13, 16.
161. In planning the campaign for the loan, the privy council was fully aware of the problems they were likely to face. This was why the commissions for the loan were drawn broadly in an effort to include local worthies, why the privy councillors went personally into their counties to urge generosity, and why every effort to deal with resisters began with a carrot rather than a stick. See Cust, Forced loan, pp. 46-55.
162. See, for example, Thomas Cogswell, 'Underground verse and the transformation of early Stuart political culture', in Susan Amussen and M. A. Kishlansky, eds., Political culture and cultural politics in early modern England (Manchester, 1995), p. 284, and David Underdown, A freeborn people (Oxford, 1996), pp. 37-9.
163. See Harold Hulme, ed., 'Sir John Eliot and the Vice-Admiralty of Devon', Camden Miscellany, 17 (1940).
164. T. G. Barnes, Somerset, 1625-1640 (Cambridge, MA, 1961), p. 289.
165. William Knowler, ed., The earl of Strafforde's letters and dispatches (London, 1739), 1, p. 36. It remains unclear why Wentworth was a target of Buckingham after 1625.
166. That neither were beyond such prosaic concerns is demonstrated by the fact that Noy worked his way back into royal government, succeeding Heath as attorney general, while Selden dedicated the publication of Mare Clausum to Charles I in 1635 'as part of making his peace with King Charles'. Christianson, Public career of John Selden, p. 248.
167. Thomas Cogswell, Home divisions (Manchester, 1998), pp. 108-26.
168. Cooper, ed., Wentworth papers, p. 261.
169. Whitaker, ed., Original correspondence of Sir George Radcliffe, p. 138.
170. 'Practically, the great evil of the day was that Charles was not fit to be entrusted with powers which had been wielded by former sovereigns.' S. R. Gardiner, History of England (London, 1896), VI, p. 242. Gardiner's entire discussion is shot through with his discomfort at the implications of the arguments of Coke and Selden. See especially his reference to the suspension of the Habeas Corpus Act which would have given the crown exactly the power Charles had by using commitment by special command.
171. White, Sir Edward Coke; Christianson, Public career of John Selden; J. G. A. Pocock, The Ancient Constitution and the feudal law (2nd edn, Cambridge, 1987).
172. Guy called it' a minor loophole which had become a political weapon in the hands of Charles I'. Guy, 'Origins', p. 294.
173. C. S. R. Russell, Parliaments and English politics (Oxford, 1979), p. 368. 'The Commons had the choice, either of restoring trust in the common law, or of restoring trust in the king. Under the leadership of common lawyers, they chose to restore trust in the certainty of the common law.'
174. L. J. Reeve, 'The legal status of the Petition of Right, 'Historical Journal, 29 (1986), pp. 257-77.