¹ I am most grateful to Miss Sheila Lambert, Professor G. R. Elton, Professor Conrad Russell and Mr Peter Salt for most valuable comments on an earlier version of this paper.

² For discussion of the issues raised in 1628 see especially Gardiner, S. R., History of England from the accession of James 1 to the outbreak of the civil war, 1603–1642 (London, 1886), VI, 213–326;Google ScholarRelf, F. H., The petition of right (Minneapolis, 1917);Google ScholarJudson, M. A., The crisis of the constitution, 1603–1645 (New Brunswick, 1949), pp. 240–69;Google ScholarHervey, M. F. S., The life, correspondence and collections of Thomas Howard, earl of Arundel (Cambridge, 1921), pp. 260–4, 279–80;Google ScholarFraser, I. H. C., ‘Sir Robert Heath’ (University of Bristol M. Litt. thesis, 1954), pp. 93–127;Google ScholarAdair, E. R., ‘The petition of right’, History, v (1921), 99–103;Google ScholarReed Brett, S., John Pym (London, 1940), pp. 89–102;Google ScholarHulme, H., The life of Sir John Eliot, 1592–1632 (London, 1957), pp. 184–229;Google Scholar see also his article, ‘Opinion in the house of commons on the proposal for a petition of right, 6 May 1628’, English Historical Review, L (1935), 302–6;CrossRefGoogle ScholarWedgwood, C. V., Thomas Wentworth, first earl of Strafford, I593–1641 (London, 1961), pp. 61–71;Google ScholarJones, W. J., Politics and the bench (London, 1971), pp. 70–5;Google ScholarThompson, C., ‘The origins of the politics of the parliamentary middle group, 1625–1629’, Transactions of the Royal Historical Society, 5th series, XXII (1972), 71–86;CrossRefGoogle ScholarFoster, E. R., ‘The painful labour of Mr Elsyng’, Transactions of the American Philosophical Society, new series, LXII, part 8 (1972), 27–35;Google Scholar see also her article, ‘Petitions and the petition of right’, Journal of British Studies, XIV (1974), 21–45;Google ScholarHexter, J. H., ‘Power struggle, parliament and liberty in early Stuart England’, Journal of Modem History, L (1978), 1–50;Google ScholarWhite, S. D., Sir Edward Coke and the grievances of the commonwealth, 1621–1628 (Chapel Hill, 1979), pp. 213–76;Google ScholarRussell, C. S. R., Parliaments and English politics, 1621–1629 (Oxford, 1979), pp. 323–89;CrossRefGoogle Scholar see also his articles, ‘Parliamentary history in perspective, 1604–1629’, History, LXI (1976), 1–27,Google Scholar and ‘The parliamentary career of John Pym, 1621–9’ in The English commonwealth, 1547–1640 (ed. Clark, P. et al.; Leicester, 1979), pp. 147–65;Google ScholarHirst, D., ‘Parliament, law and war in the 1620s’, Historical Journal, XXIII, 2 (1980), 455–61.CrossRefGoogle ScholarFaction and parliament (ed. Sharpe, K.; Oxford, 1978)Google Scholar contains three essays bearing on 1628: D. Hirst, ‘Court, country and politics before 1629’; Ball, J. N., ‘Sir John Eliot and parliament, 1624–1629’;Google Scholar and Sharpe, K., ‘The earl of Arundel, his circle and the opposition to the duke of Buckingham, 1618–1628’.Google Scholar

³ Most writers rely on Relf, Petition of right, pp. 1–19. Her account is, however, marred by large errors of fact owing to failure to consult the proper King's Bench sources. The idea that the King's Bench records should be exhaustively searched for traces of the decision in the five knights’ case was suggested to me by Professor J. H. Hexter. I am grateful to Mr Hexter both for his idea and encouragement. An advance copy of the forthcoming appendix to Commons debates 1628 on the five knights’ case by Mrs Maija J. Cole of the Yale Centre for Parliamentary History was kindly sent to me by the author. I am grateful to Mrs Cole for permission to read her appendix before writing this paper.

⁴ For a summary of the preferred methodology see Elton, G. R., ‘Studying the history of parliament’, and the same author's’ A reply’, both in Studies in Tudor and Stuart politics and government (Cambridge, 1974), II, 3–18.CrossRefGoogle Scholar Essential to an understanding of the records and workings of parliament are Bond, M. F., Guide to the records of parliament (London, 1971);Google Scholar his article, ‘Clerks of the parliament, 1509–1953’, E.H.R. LXXIII (1968), 78–85;Google ScholarLambert, S., ‘The clerks and records of the house of commons, 1600–1640’, Bulletin of the Institute of Historical Research, XLIII (1970), 215–31;CrossRefGoogle Scholar see also her masterly survey, ’Procedure in the house of commons in the early Stuart period’, E.H.R. xcv (1980), 753—81.CrossRefGoogle Scholar For 1628, the official commons’ Journal and unofficial diaries have been published by the Yale Centre under the title Commons debates 1628 (ed. Johnson, R. C., Keeler, M. F. et al.; New Haven, 1977–9; hereafter cited as CD 1628).Google Scholar

⁵ The official sources upon which this paper is based are (1) Public Record Office, King's Bench records: KB 21/9 (rule book, unfoliated); KB 145/15/3 (Recorda files, Michaelmas and Hilary terms 1627–8); KB 29/276 (controlment roll); KB 27/1558–61 (coram rege rolls, Rex side). All references to MSS in this paper are to documents in the P.R.O., unless otherwise stated. (2) Journals at the House of Lords Record Office: Journals of the house of lords (London, 1864-),Google Scholar III; Journal of the house of commons for 1628 (MS 18), printed in CD 1628. (3) ‘Scribbled books’ and draft journals of the house of lords in 1628 at H.L.R.O. and elsewhere (see below). The ‘scribbled books’ were the original central record of proceedings in the house of lords, written at the table during sittings of the house. The draft journals represented the intermediate stage which existed in the seventeenth century between the ‘scribbled books’ and the final Journals. Despite the inclination of historians to neglect these records in favour of the printed Journals, both sources contain much invaluable information not preserved in the Journals, e.g. membership of committees, reports of proceedings at conferences between the houses, and (for 1621–8) summaries of actual speeches; they also express more accurately than the Journals the precise order and format in which business was taken. In this paper, the ‘scribbled books’ and draft journals are preferred to the printed Journals. Four ‘scribbled books’ are extant for 1628: H.L.R.O., Minutes of Proceedings in the House of Lords (‘Manuscript Minutes’), vol. 5 covers the period 17 March-20 Oct. (hereafter cited as MM, vol. 5); British Library, Additional MS 40091 covers 17 March-26 June; Inner Temple, Petyt MS 538.7 covers 17 March-30 April; Bodleian Library, Rawlinson MS A. 106 covers 1—31 May. These MSS have been haphazardly edited by Relf, F. H., Notes of the debates in the house of lords (Camden Society; 3rd series; 1929).Google Scholar She chose as her main texts the Petyt and Rawlinson MSS; in footnotes were added extracts from MM, vol. 5 (cited by Relf as ‘B’), and B.L., Add. MS 40091 (cited by Relf as ‘A’). The main texts are good enough to be used here from Relf s edition, provided it is realized that there are substantial lacunae; the footnotes from MM, vol. 5 and B.L., Add. MS 40091 are a fraction of those important sources, and MM, vol. 5 (which throws valuable light on the origins of the petition) is used here from the original MS. I am most grateful to Mr D. S. Mansfield for the loan of four microfilms. Two draft journals are extant for the house of lords in 1628: H.L.R.O., Braye MS 14 covers the period 17 March -30 April; H.L.R.O., Braye MS 15 covers 1 May-26 June.

⁶ A complete collection of state trials (ed. T. B. Howell), III, 59.

⁷ See above n. 5 for KB references.

⁸ KB 21/9 (Mich., 3 Car. I).

⁹ Ibid.

¹⁰ Acts of the privy council of England, 1627—8 (London, 1940), p. 131.Google Scholar It is not without interest that Manwaring's controversial sermon on apostolical obedience, licensed for the press as propaganda for the forced loan of 1626–7, appeared with the inscription ‘by his majesty's special command’; see Trevor-Roper, H. R., Archbishop Laud, 1573–1645 (2nd edn; London, 1962), p. 80.Google Scholar

¹¹ KB21/9 (Mich., 3 Car. I).

¹² KB 145/15/3 (Hilary, 3 Car. I); KB 21/9 (Mich., 3 Car. I). The writs are on the Hilary file, because they were kept out until the beginning of March 1628 in connection with the special entry planned by Sir Robert Heath, for which see below, pp. 296–7.

¹³ SP 16/85/53 (full report of the five knights’ case in Heath's hand).

¹⁴ KB 21/9 (Mich., 3 Car. I). The rule book also establishes that the date of the decision was 27 November 1627 (dies Martis proxime post quindenam Sancti Martini). The chronology of the case given in State trials is typically inaccurate.

¹⁵ The technical legal status of the rule of King's Bench in the five knights’ case was that of an interlocutory order in the nature of a curia advisari vult, by which is meant that nothing had been adjudged, and the court reserved its right to rehear the matter upon further advice. (See the interpretations in parliament in 1628 of Solicitor-general Shelton and the King's Bench judges, CD 1628, II, 155, 159, 162; Relf, Notes of debates, pp. 100, 105, 112.) But such advice could only come from the Crown in the five knights’ case, because the prisoners had been detained per speciale mandatum domini regis. Furthermore, the advice could only be ‘known’ by King's Bench when received in proper form, either as an amended return in response to a new writ of alias habeas, or (possibly) in the form of letters close under Charles's sign manual addressed to the judges. In other words, the cards were stacked wholly in favour of the Crown, provided substantive charges were never filed against the prisoners, and provided Charles and the privy council stuck to per speciale mandatum domini regis as the form of their return to any future writs of alias habeas. Without knowledge of the ‘cause of the cause’, the King's Bench judges could never have bailed the five knights, not least because to have done so in a case of detention per speciale mandatum domini regis would have been to have judged the imprisonment ‘a wrong done by the King’ (Relf, Notes of debates, p. 100). John Selden stressed the negative practical effect of the rule in the five knights’ case on 28 March 1628, when he told the commons with reference to rules of court quousque, etc., ‘The course of an officer is to enter quousque, etc., that is till they be delivered by law, and ‘tis all the judgment that can be’ (CD 1628, II, 174, 180). This was not strictly true, but it reflected Selden's frustration with the return per speciale mandatum domini reges.In fact, Selden had not tried to obtain a new writ of alias habeas in the case of his client Sir Edmund Hampden. He could have obtained such a writ on 28 November 1627, prior to the end of Michaelmas term, but evidently had not thought this worthwhile. The judges pointed out in the upper house that new writs could have been requested (Relf, Notes of debates, pp. 100, 102, 107; see also below, pp. 300–1.

¹⁶ KB 145/10/19.

¹⁷ The reports of Sir John Spelman (ed. Baker, J. H.; 2 vols., London, 19791977–), I, 183–4. Unfortunately, it is not clear from Spelman's report whether the cause in question had to be specific, or whether it could be general (i. e. per speciale mandatum domini regis).Google Scholar

¹⁸ CD 1628, I, 106. Some M.P.s in 1628 thought that this decision of 34 Elizabeth ‘made for the liberty of the subject’ (Ibid. II, 229, 233). However, their assumption was that the cause of imprisonment to be expressed in habeas corpus proceedings was to be specific, not general. In fact, the judges in 1592 had been ambiguous on this point (see also Gardiner, , History of England, 1603–1642, VI, 244–5).Google Scholar

¹⁹ The judges’ dependence on their legal ‘knowledge’ was emphasized by Justice Whitlocke when speaking to the house of lords on 14 April 1628; Relf, Notes of debates, p. 100.

²⁰ See below, pp. 296–7.

²¹ KB 145/15/3 (Hilary, 3 Car. I). For a description of the King's Bench files see Meetings, C. A. F., ‘King's bench files’, in Legal records and the historian (ed. Baker, J. H.; London, 1978), pp. 97–139.Google Scholar

²² KB 29/276, 10. 80.

²³ Justice Doddridge later explained that there was some clerical laxity in this matter (Relf, Notes of debates, p. 107). The rules representing the adjournments of Darnel's case (13 Nov. 1627) and those of the other four knights on 22 Nov. 1627 were remittitur (KB 21/9 [Mich., 3 Car. I]).

²⁴ Relf, Notes of debates, p. 101. 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 (CD 1628, II, 174, 180, 183); what he meant was that remittitur quousque, etc. in the five knights’ case was in practical terms final, because the knights would not obtain release from gaol without the consent of the Crown (see above, n. 15).

²⁵ CD 1628, II, 146–52.

²⁶ CD 1628, II, 173–4, 176, 180–1.

²⁷ CD 1628, II, 211–12.

²⁸ CD 1628, II, 229. Keeling's evidence requires explanation. When he said, ‘He wondered that there was no entry’, he must have meant either that there was no special entry, or that there was no entry on the coram rege roll, since Selden had already found remittitur entered on the controlment roll. His remark that an entry ‘useth to be made before this time’ refers to the fact that it was wholly improper to add to or alter the legal records of a superior court after the rolls had been sewn up at the end of the law term. The five knights’ case had been heard in Michaelmas term 1627, and entries arising from it should have been on record by the beginning of Hilary term 1628.

²⁹ CD 1628, II, 212.

³⁰ CD 1628, II, 213, 218, 221.

³¹ CD 1628, II, 219 (my italics).

³² To wilfully raze, remove, avoid, vacate or constructively pervert the legal records of the superior courts was a felony by 8 Henry VI, c. 12.

³³ CD 1628, II, 213, 232.

³⁴ CD 1628, II, 213, 219, 229, 230.

³⁵ CD 1628, II, 229–41.

³⁶ CD 1628, 1, 106; II, 229–30, 232–3, 235–6. See also above, n. 18.

³⁷ CD 1628, II, 231, 238–9, 276.

³⁸ CD 1628, II, 231, 276.

³⁹ CD 1628, I, 106, 128, 133.

⁴⁰ See below, p. 306.

⁴¹ Selden's claim that the resolutions were ‘resolutions of law, and no man can make question of them’ (26 April 1628) was tendentious; CD 1628, III, 96. I am grateful to Professor Elton for advice on this point.

⁴² CD 1628, II, 277, 296.

⁴³ CD 1628, II, 332–42, 356–8.

⁴⁴ CD 1628, II, 342–56.

⁴⁵ CD 1628, II, 297, 302–3.

⁴⁶ On the background to parliamentary judicature in early Stuart England, see Pike, L. O., A constitutional history of the house of lords (London, 1894), pp. 279–304.Google ScholarTite, C. G. C.'s analysis of Impeachment and parliamentary judicature in early Stuart England (London, 1974)Google Scholar is somewhat undermined by his failure to notice that the tract Of the judicature in parliaments, published as Selden's work in 1681, was in fact written by Henry Elsyng senior (see Foster, , ‘The painful labour of Mr Elsyng’, pp. 42–6).Google Scholar

⁴⁷ MM, vol. 5, fo. 27^v.

⁴⁸ MM, vol. 5, fo. 32^v.

⁴⁹ MM, vol. 5, fo. 32^v. The existence and importance of a middle group in the parliamentary events of the period 1625–9 was discovered by C. Thompson (see his article, ‘ The origins of the politics of the parliamentary middle group’). The history of a later group was delineated by Hexter, J. H. in The reign of King Pym (Cambridge, Mass., 1941), pp. 31–99,Google Scholar and Pearl, V., ‘Oliver St John and the “middle group’’ in the Long Parliament, August 1643-May 1644’, E.H.R. LXXXI (1966), 490–519.CrossRefGoogle Scholar

⁵⁰ MM, vol. 5, fo. 33^v.

⁵¹ MM, vol. 5, fo. 33^v.

⁵² MM, vol. 5, fo. 34; Relf, Notes of debates, pp. 99–100. Buckingham's argument was, in any case, bad, because the five knights had not committed a crime.

⁵³ MM, vol. 5, fo. 32.

⁵⁴ Relf, Notes of debates, p. 93. The precise reason why Buckingham decided to make this astonishing leak at this point is elusive, but it is not likely to have been an accident. In the event, the significance of his statement was almost completely obscured in an outbreak of friction between the two houses over the alleged claim by the earl of Suffolk on 12 April 1628 that ‘Mr. Selden had razed a record and did deserve to be hanged ‘ and that ‘Mr. Selden went about to divide the King and his people’ (CD 1628, II, 508—9, 514–16). Suffolk denied in the upper house on 17 April that he had spoken these words, maintaining that he had misunderstood Attorney-general Heath to say that the record of the five knights’ case had been razed, and ‘that I [Suffolk] conceived that Selden had razed a record in putting out of material matter, and therefore if he had done so he had deserved to be hanged’ (MM, vol. 5, fo. 42; Relf, Notes of debates, pp. 115–16). Suffolk added, ‘If offended in this, it is because I was mistaken’, to which the earl of Berkshire replied, ‘Humanum est errare. He is sorry for it, but the word “if” extenuates it’ (Relf, Notes of debates, p. 116). On 17 April the commons exhorted the lords to charge Suffolk at the bar of the upper house’ and that they will proceed against him injustice’ (CD 1628, II, 516). The lords ignored this request. That Suffolk was in error is confirmed by the fact that neither the controlment nor coram rege rolls for 1627–8 have been razed. It is possible to speculate that a space had been left on the controlment roll for Heath's special entry (KB 29/276), because membrane 88 is followed immediately by membrane 90, but such spaces (or ‘windows’) as the absent membrane 89 were not unusual on the King's Bench rolls, since the membranes were numbered before the beginning of the term to which they pertained, and not all membranes so numbered were subsequently used by the clerks.

⁵⁵ MM, vol. 5, fos. 33–8; Relf, Notes of debates, pp. 100–1, 104–7, 111–12. For the exact technical status of the rule of 27 November 1627, see above, n. 15.

⁵⁶ MM, vol. 5, fos. 34–8; Braye MS 14, fos. 69^v-72; Relf, Notes of debates, pp. 100–2, 104–9.

⁵⁷ See above, p. 293 and n. 15; Relf, Notes of debates, p. 100. Justice Whitlocke answered the objection that a man ‘ might be kept in prison durante vita’ on a rule of court quousque, etc. by explaining that new writs of alias habeas might be sued out to rehear the case. To the extent that a man imprisoned per speciale mandatum domini regis would never secure bail against the wishes of the Crown, however many writs of alias habeas were sued (see above n. 15), his explanation was ingenuous, even dissembling, but it was correct in strict law. The moral obligation lay with the Crown to behave within the spirit of English ‘due process’ legislation.

⁵⁸ MM, vol. 5, fos. 38–9^v.

⁵⁹ MM, vol. 5, fos. 39^v-46^v; CD 1628, II, 490–503, 524–38.

⁶⁰ Journals of the house of lords, III, 746–7, 753–63; CD 1628, II, 527–33; MM, vol. 5, fos. 44^v-8.

⁶¹ Braye MS 14, fo. 92^v.

⁶² Relf, Notes of debates, p. 124. Saye's idea that an expression on record of subjects’ liberties should be understood not to prevent emergency action by the Crown is important in judging whether the supporters of the petition of right were seeking to curtail the prerogative or not. The middle group followed Saye, who argued on 21 May 1628 that, since there was nothing in the petition beyond what concerned subjects’ rights, a saving clause for the king's prerogative was not necessary (Ibid. p. 189). It was the hardline members of the commons, Sir Edward Coke, Eliot and Coryton, who feared that anything less than an absolute denial of discretionary imprisonment for unknown causes would be ineffective. Thompson, ‘Origins of the politics of the parliamentary middle group’, pp. 84–5; Ball, J. N., ‘The petition of right in the English parliament of 1628’, in Album Emile Lousse, IV (Louvain, 1964), 50.Google Scholar This point requires research beyond the scope of the present paper, for which see Dr Ball, 's thesis, ‘The parliamentary career of Sir John Eliot, 1624–1629’, Cambridge Ph.D., 1953.Google Scholar

⁶³ Relf, Notes of debates, p. 130.

⁶⁴ MM, vol. 5, fo. 51.

⁶⁵ MM, vol. 5, fo. 51^v.

⁶⁶ MM, vol. 5, fo. 52; Relf, Notes of debates, pp. 131–4.

⁶⁷ MM, vol. 5, fo. 52^v.

⁶⁸ MM, vol. 5, fo. 53^v.

⁶⁹ MM, vol. 5, fo. 54.

⁷⁰ MM, vol. 5, fo. 54^v; Braye MS 14, fo. 96.

⁷¹ CD 1628, III, 60–2.

⁷² MM, vol. 5, fos. 54^v-6^v; Braye MS 14, fos. 98^v-100.

⁷³ Braye MS 14, fos. 100–1; CD 1628, III, 74–5.

⁷⁴ CD 1628, III, 94–119.

⁷⁵ CD 1628, III, 94–6. Cf. Russell, Parliaments and English politics, pp. 353–4.

⁷⁶ CD 1628, III, 97.

⁷⁷ CD 1628, III, 125.

⁷⁸ The bishop of Exeter, Joseph Hall, sent a letter to the commons on 28 April in which he exhorted them to accept Charles's word alone. H.L.R.O., Braye MS 89, fo. 91; CD 1628, III, 125 n. 26.

⁷⁹ CD 1628, III, 128.

⁸⁰ CD 1628, II, 297; see above, p. 299.

⁸¹ CD 1628, III, 123–4, 149; Relf, Petition of right, appendix B.

⁸² CD 1628, III, 149–68, 172–3, 175–82, 187–8.

⁸³ CD 1628, III, 172.

⁸⁴ CD 1628, III, 173.

⁸⁵ CD 1628, III, 188.

⁸⁶ CD 1628, III, 188–9.

⁸⁷ CD 1628, III, 191–2.

⁸⁸ CD 1628, III, 210–12, 215–16, 219–21, 224, 225, 227–8, 229, 234–5, 237, 239, 240–1, 247, 248–9, 253–4, 271–3.

⁸⁹ CD 1628, II 65; III, 201, 203. See also Hirst, ‘Parliament, law and war in the 1620s’, p. 460.

⁹⁰ CD 1628, III, 189.

⁹¹ CD 1628, III, 211.

⁹² CD 1628, III, 212–13.

⁹³ CD 1628, III, 253–4.

⁹⁴ CD 1628, III, 254.

⁹⁵ CD 1628, III, 254.

⁹⁶ CD 1628, III, 269.

⁹⁷ CD 1628, III, 269–70, 275–6, 280–1.

⁹⁸ CD 1628, III, 269–70, 275.

⁹⁹ CD 1628, III, 270.

¹⁰⁰ CD 1628, III, 270, 275, 276.

¹⁰¹ CD 1628, III, 270–2.

¹⁰² CD 1628, III, 271–2, 276–7, 281–3.

¹⁰³ CD 1628, III, 271, 276, 281–2.

¹⁰⁴ CD 1628, III, 270–1.

¹⁰⁵ CD 1628, III, 271.

¹⁰⁶ CD 1628, III, 271–2 (where the reading of MSS 8–12 seems to make best sense).

¹⁰⁷ For the background to petitioning and the petition of right as a formal document, see Mrs Foster's article, ‘Petitions and the petition of right’, pp. 21–45.

¹⁰⁸ CD 1628, III, 272–3, 277–8, 282–4, 286–7, 290–1, 293–4, 296.

¹⁰⁹ CD 1628, III, 273, 278.

¹¹⁰ C.f. CD 1628, III, 98 (26 April 1628). Sir Thomas Wentworth had said, ‘Neither do I think it fit to go in a petition of right, for that is wrapped up in a parliament roll’. The precise legal status of the petition is discussed (not entirely satisfactorily) by Mrs Foster in ‘The painful labour of Mr Elsyng’, pp. 28–9, 31–2, 33–5; see also her article, ‘Printing the petition of right’, Huntington Library Quarterly, XXXVIII, I (1974), 81–3.Google Scholar

¹¹¹ See above, p. 309. It was the scale of Charles's dubious operations in 1626–7 which may well have been at the forefront of M.P.s’ minds on 6 May 1628: the imprisonment of so many gentlemen, pillars of their communities, in such a doubtful way. This point was drawn to my attention by Professor Derek Hirst, to whom I am grateful.

¹¹² CD 1628, III, 268, 274.

¹¹³ CD 1628, III, 98, 102–3, 108, 111.

¹¹⁴ CD 1628, III, 273, 278, 284. The petition was given statutory authority in 1641 by the act against Ship Money (17 Charles I, c. 14). I am grateful to Conrad Russell for this reference. I am preparing another paper on the legal authority of the petition in 1628 and 1629.