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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	act_n	law_n	parliament_n	2,185	5	6.6353	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A69923	A conference desired by the Lords and had by a committee of both houses, concerning the rights and privileges of the subjects discoursed by Sir Dudley Digges, Sir Edward Littleton Knight, now Lord Keeper, Master Selden, Sir Edward Cooke ; with the objections by Sir Robert Heath, Knight, then Attorney Generall, and the answers, 3 ̊Apr. 4. Car. 1628.	England and Wales. Parliament.	1642 (1642)	Wing E1284C; ESTC R8061	70,161	93

no cause of such commitment deteyner or restraint being expressed for which by Law he ought to be committed deteyned or restrained and the same be returned upon a Habeas Corpus granted for the said party then he ought to be delivered or bayled All these without one negative that these Acts of Parliament and these Judiciall presidents in affirmance thereof recited by my Colleagues are but declarations of the fundamentall lawes of this Kingdome I shall prove by manifest and legall reasons which are the grounds and mothers of all lawes The first generall reason 1. The first generall reason is drawne are ipsa from imprisonment ex visceribus causae be it those or other imprisonments which is divided into three parts 1. First no man can be imprisoned at the will and pleasure of any but he that is bond and a villaine for that imprisonment at will is tailes luy haut base are propria quarto modo to villaines 2. But if Free-men of England might be imprisoned at the wil and pleasure of the King by his commandment then were they in worse case then bond-men villaines for the lord of a villain cannot command another to imprison his villain without cause as of disobedience or refusing to serve as it is agreed in our Bookes 3. Imprisonment is accounted in law a civil death perdit domum familiam vicinos patriam his house is family his wife his children his neighbours his Country and to live among wretched wicked men 39 H. 6. fo 50. 41. Ed. 3. 9. If a man be threatned to be killed he may avoid a feoffment of lands gift of goods c. So it is if he be threatned to be imprisoned he shall doe the like for that is a civill death The second generall reason Bracton 105. fo 15. The second generall reason is a Minore ad majus paena corporalis est majus qualibet pecuniaria but the King himselfe cannot impose a fine upon any man but it must be done juditially by his Judges per Iusticiar ' in Cur ' non per Regem in Camera 2. R. 3. 11. and so it hath beene resolved by all the Judges of England The third generall reason The third generall reason is drawne from the number and diversity of remedies which the law giveth against imprisonment vizt brevia de Homine replegiande de odio Atia de habeas corpus bre de manucaptiene The two former of these are antiquated but the writ de odio Atia is revived for that was given by the Sat. of Magna Car ' cap. 26. and therefore though it were repealed by the Stat. of 28. Ed. 3 ca 9. yet it is revived by the Stat. of 43. Ed. 3. cap. 1. by which it is provided that all Statutes made against Magna Charta are void now the law would never have given so many remedies if the Freemen of England might have beene imprisoned at Free will and pleasure The fourth generall reason The fourth generall reason is drawne from the extent universality of the pretended power to imprison for it should not extend onely to the Commons of the Realme and their posterity but to the Nobility and their Honourable Progenies to the Bishops and Clergie of the Realme and their Successours to all persons of what condition or sex or age so ever to all Judges Officers c. whose attendance are necessary without exception of any person The fifth generall reason The fifth generall reason is drawne from the indefinitenesse of time the pretended power being limited to no time it may be perpetuall during life The sixth generall reason The sixth generall reason is drawne a dedecore from the losse and dishonour of the English nation in two respects 1. For their valour and power so famous through the whole world 2. For their industry for who will endeavour to imploy himselfe in any profession either of Warre liberall Science or Merchandize if he be but tennant at will of his liberty and no tennant at will will support or improve any thing because he hath no certaine estate and thus it should be both dedecus and damnum to the English nation and it should be no honour to the King to be King of a slaves The seventh generall reason The seventh generall reason is drawne ab utili et inutili for that appeareth by the Stat. of 36 Ed. 3. that the execution of the Statute of Magna Charta 5. Ed. 3. 25. Ed. 3. 28. Ed. 3 are adjudged in Parliament to be for the common profit of the King and of his people and therefore the pretended power being against the profit of the King and of his people can be no part of his prerogative The eighth generall reason The eighth generall reason is drawne a tuto for it is safe for the King to expresse the Cause of the Commitment and dangerous for him to omit it for if any be committed without expressing of the Cause though hee escape albeit the truth be it were for treason or felony yet the escape is neither felony nor treason but if the cause be expressed to be for suspition of treason or felony then if he escape albeit he be innocent it is treaon or felony The last generall reason The last generall reason is drawne from authorities 16. H. 6. Means de fait 182. by the whole Court the King in his presence cannot command one to be arrested but an action of false imprisonment lies against him that arresteth 22. H. 7. 4. Newton 1 H. 7. 4. The opinion of Markham chiefe Justice to Ed. 4. And the reason because the party hath no remedy Fortescue cap. 8. Proprio ●re nullus regum usus est c. to commit any man 4. El. Plo. Com. 236. The Common Law hath so admeasured the Kings Prerogative as he cannot prejudice any man in his inheritance and the greatest inheritance a man hath is the liberty of his person for all others are accessary to it Cicere Major haeredidas venit unicuique nostrum a legibus quam a parentibus 25. Ed. 1. cap. 2. All judgements given against Magna Charta are void Vpon conference with the Lords these objections were made by the Kings Attorney The first objection 1 That the resolutions of the House of Commons were incompatible with a Monarch that must governe by rule of State Rns Whereunto it was answered Quod nihil tam propr ' est imperii quam legibus vivere And againe Attribuat Rex legi quod lex attribuat ei vizt dominationem imperium quia sine lege non potest esse Rex It can be no prejudice to the King by reason of matter of State for if it be for suspition of treason misprision of treason or felony it may be by generall words expressed vizt pro suspitione proditionis c. If it be for any contempt or any other thing the particular cause must be shewed The second objection 2 To blinde those that are

c. had not followed and that these words were void according whereunto here also per mandat Dom. Regis nunciat per Robertū Pecke had bin wholly omitted and void likewise in truth in that late Case this case of Parker was cited both at the Bar and at the Bench and at the Bench it was interpreted by the Judges no otherwise then if it had beene only per mandatum Dom. Regis in this place of it But the objection there was made of another kind as was delivered in the first Argument made out of Presidents in behalfe of the house of Commons Then for the second objection touching the course of enumeration of the causes in the returne it was said that however in some acts of Parliament and else-where in the solemne expression used in the Law things of greater nature precede and the lesse follow Yet in this case the contrary was most plaine for in the return there appeares that there were three causes of deteyning the prisoner surety of the peace suspition of felonie and the Kings command and suretie of the peace is first mentioned which is plainly lesse then felonie therefore it is as plaine that if any force of Argument be here to be taken from this enumeration the contrary to that which Master Attorney inferred is to be concluded that is that as felonie is a greater cause then Suretie of the Peace so the matter whereupon the Kings command was grounded was greater then the felonie But in truth this kind of Argument holds neither way here And whatsoever the cause were why the King committed him it was impossible for the Court to know it And might also have been of very high moment in matter of State and yet of farre lesse nature then felonie all which shewes that this President hath its full force also according as it was first used in Argument by the house of Commons 35. H. 8. Bincks case cite ante 36. 56 objections hors de ceo To the third of these which is Bincks Case in 35. H. 8. Rot. 35. the Objection was that there was cause expressed pro suspitione feloniae and though pro alijs causis illos moventibus were added in the returne yet because in the course of enumeration the generall name of alia comming after particulars includes things of lesse nature then the particular doth therefore in the Case suspition of felonie being the first the other causes generally mentioned must be intended of lesse nature for which the prisoner was bay leable for the greater which was suspition of felonie Rns al dit obiection Hereunto it was replied that the Argument of enumeration on in these cases is of no moment and is next before shewed and that although it were of any moment yet the aliae causae though lesse then felonie might be of very great consequence in matter of State which is pretended usually upon generall returnes of command without cause shewed And it is most plaine that the Court could not possibly know the reasons why the prisoner here was committed and yet they bay led him without looking further after any unknowne thing under that tytle of matter of State which might as well have been in this Case as in any other whatsoever 2. 3. P. M. Overtons case Et 4. et 5. P. M. Newports case cite ante fo 36. et 37. Et les objections la rnde le Record de ceux vide ante fo 37. et 38. To the fourth of these which is Overtons Case en Pas 2. 3. P. et Mar. rot 58. and to the fifth which is Newports Case Pas 4. 5. P. Mar. rot 45. onely these observations were said over againe by Master Attorney which were moved in the Argument made out of the Presidents in the behalfe of the house of Commons at the first conference and in the same Argument were fully and cleerely satisfied as they were now againe in like manner 9. El. Lawrences case et eodem Anno Constables case cite devant fo 38. et 56. To the sixth which is Lawrences Case in 9. El. rot 35. and to the seventh which is Constables Case Pas 9. El. Rot. 68. the same objections were likewise said over againe by Master Attorney that are moved and clearly and fully answered in the Argument made at the last Conference out of Presidents in the behalfe of the house of Commons The force of the Objection being only that it appeared in the margin of the Roll that the word Pardon was written but it is plaine that the word there hath no reference at all to the reason why they are bayled nor could have reference to the cause why they were committed is utterly unknowne and was not shewed 20. El. Brownings case cite devant fo 38. et 56. To the eighth which is Brownings Case in Pas 20. El. Rot. 72. it was said by Master Attomey that he was bayled by a Letter from the Lords of the Counsell directed to the Judges of the Court but being asked for that Letter or any testimony of it he could produce none at all but said he thought the testimony of it was burnt amongst many other things of the Counsell table at the burning of the Banquetting house 40. El. Harecourts case cite devant fo 39. To the ninth being Harecourts Case Pas 40. El ' Rot. 620. the selfe-same objection was made by him but no warrant was shewed to maintaine his objection 43. El. cite devant fo 39. Catesbies case Object a ceo To the tenth which is Catesbies Case in vacatione Hill 43. El. he said that it was by direction of a Privie Seale from the Queene and to that purpose he shewed the Privie Seale of 43. El. which is at Charge among the transcript of the Records concerning bayles taken in Cases when the King or the Lords of the Counsell assented Rns a ceo But it was replied that the Privie Scale was made only for some particular Gentleman mentioned in it and none other as indeed appeares in it And then he said that it was likely that Catesby here had a privie Seale in this behalfe because those other had so which was all the force of his objection 12. Iac. Backwiths case cite devant fo 39. 58. Objection a ceo To the 11 which is Beckwiths Case in Hill 12. Iac. Rot. 183. He said the Lords of the Counsell sent a letter to the Court of Kings Bench to bayle him and indeed hee produced a letter which could not by any meanes be found when the Arguments were made at the first conference And this Letter and a Copie of an obscure report made by a young Student that was brought to another purpose as is hereafter shewed were the onely things written of any kinde that M. Attorney produced besides the particular shewed by the House of Commons at the first conference Rns al objections To this it was replied that the letter was of no moment being onely a direction to the chiefe

it selfe Le Rns Hereunto it was answered that the Statutes were as direct as could bee which appeareth by the reading of them and that though some of them speak of Suggestions of the Subjects yet others do not and they that doe are as effectuall for that they are in equall reason a commitment by the command of the King being of as great force when it moveth from a Suggestion from a Subject as when the King taketh notice of it himselfe the rather for that Kings seldome intermeddle with matters of this nature but by information from some of their people 2. Object 2. Master Attorney objected that per legem terrae in Magna Charta which is the foundation of this question cannot be understood for Proces of the Law and originall Writs for that in criminall proceedings no originall Writ is used at all But every Constable either for Felonie or breach of the Peace or to prevent the breach of the Peace may commit without Proces or originall Writ and it were hard the King should not have the power of a Constable And the Statute cyted by the Commons make Proces of the Law and Writ originall to be all one Le Rns The answer of the Commons to this Objection was that they doe not intend originall Writs only by the Law of the Land but all other legall Proces which comprehends the whole proceedings of Law upon cause other then triall by Jury Judicium parium unto which it is opposed thus much is imported ex vi termini out of the word Proces and by the true acceptation thereof in the Statutes which have beene used by the Commons to maintaine their Declaration and most especially the Statutes of 25. Ed. 3. cap. 4. where it appeareth that a man ought to be brought in to answer by the course of the Law having former mention of Proces made by originall Writ And in 28. Ed. 3. cap. 3. by the course of the Law is rendred by the due Proces of the Law And 36. Ed. 3. Rot. Parliamenti numero 20. The Petition of the Commons saith that no man ought to bee imprisoned by speciall command without Inditement or other due Proces to bee made by the Law 37. Ed. 3. cap. 18. calleth the same thing Proces of the Law and 42. Ed. 3. cap. 3. stileth it by due Proces and Writ originall where the conjunctive must be taken for a dis-junctive which charge is ordinary to an exposition of Statutes and Deeds to avoid inconveniences to make it stand with the rest and with reason as it may be collected by the law of the Land in Magna Charta by the course of the Law in 25. Ed. 3. by the due Proces of Law in 28. Ed. 3. other due Proces to bee made by the Law in 36. Ed. 3. Proces of the Law in 37. Ed. 3. and by due Proces and Writ originall in 42. Ed. 3. are one and the same thing the later of these Statutes referring alwayes to the former and that all of them import any due and regular proceedings of law upon a cause other then the triall by Jurie And this appeareth 10. Rep. 74. in the Case of the Marshalsea and 11. Rep. 99. James Baggs Case where it is understood of giving Jurisdiction by Charter or prescription which is the ground of a proceeding by course of law And in Seldens Notes on Fortescue fol. 29. where it is expounded for Law wager which is likewise a tryall by law by the oath of the parties differing from that by Jurie And it doth truly comprehend these and all other regular proceedings in law upon cause which gives authoritie to the Constable to arrest upon cause And if this be not the true exposition of these words per legem terrae the Kings Counsell were desired to declare their meaning which they never offered to doe and yet certainly these words were not put into the Statute without some intention of consequence 3. Objection And thereupon Mr. Serjant Ashley offered an interpretation of them thus namely that there were divers Lawes of this Realme as the Common law the law of the Chancery the Ecclesiasticall law the law of the Admiraltie or Marine law the law of Merchants the Marshall law and the law of State and that these words per legem terrae doe extend to all these Lawes Rns a ceo To this it was answered that wee read of no law of State and that none of these Lawes can bee meant there save the Common law which is the principall and generall Law and is alwayes understood by the way of Excellencie when mention is of the law of the Land generally and that though each of the other Lawes which are admitted into this Kingdome by Custome or Act of Parliament may justly be called a law of the Land yet none of them can have the preheminence to be stiled the Law of the Land And no Statute Law booke or other authority printed or unprinted could be shewen to prove that the Law of the Land being generally mentioned was ever intended of any other then the Common Law and yet even by these other Lawes a man may not be committed without a cause expressed But it standeth with the rule of other legall expositions that per legem terrae must be meant the Common Law which is the generall and universall Law by which men hold their Inheritances and therefore if a man speake of Escuage generally it is understood as Littleton observeth Sect. 99. of the incertaine Escuage which is a Knights service tenure for the defence of the Realme by the body of the tenant in time of warres and not of a certaine Escuage which giveth only a contribution in money and no personall service And if a Statute speak of the Kings Courts of Record it is meant only of the 4. at Westminster by way of excellencie 6. Rep. 20. Gregories Case So the Canonists by the Excommunication simply spoken doe intend the greater excommunication And the Emperour in his Institutions saith that the Civill Law being spoken generally is meant of the Civill law of Rome though the Law of every City is a Civill Law as when a man names the Poet the Graecians understand Homer the Latinists Virgil 2. Admit per legem terrae extend to all the Lawes of the Land yet a man must not be committed by any of them but by the due proceedings that are executed by those Lawes and upon a cause declared 4. Object Againe it was urged that the King was not bound to expresse a cause of imprisonment because there may be in it matter of State not fit to be revealed for a time lest the confederates thereupon make meanes to escape the hands of Justice And therfore the Statute cannot be intended to restrain all commitments unlesse a cause be expressed for that it would be very inconvenient and dangerous to the State to publish the Cause at the very first Le Rns Hereunto it was

committed one cause must be pretended and another intended especially when it toucheth matter of State Rns Whereunto it was answered that all dissimulation especially in a cause of Justice was to be avoided and soundnesse of truth to take place And therefore David that was both a King and a Prophet prayed unto Almighty God against dissimulation in these words Lord send me a sound heart in thy Statutes that I be not ashamed where found in the originall signifieth upright without dissimulation and shame followes dissimulation when the truth is knowne The third objection 3 If a Rebell be attainted in Ireland and his children for safety and matter of State be kept in the Tower what shall be returned upon the habeat corpus Rns Whereunto it was answered that their imprisonment might be justified if they could not find good sureties for their good behaviour 2. It was charity to finde them meat drink and cloath that by the Attainder of their Father had nothing The fourth objection 4 Though his Majestie expresseth no cause yet it must be intended there was a just cause Rns Bracton Fleta Answere De non apparentibus non existentibus eadem ratio The fifth objection 25. Ed. 3. cap. 13 Stat. 4. H. 7. 6. 5 The King in stead of gold or silver may make money currant of any base mettall 2. He may make warres at his pleasure 3. Hee may pardon whom he will 4. Hee may make Denizens as many as he will and these were said to be greater prerogatives then these in question Rns Answer to the first It was denied that the King might make money Currant of base money but it ought to be of gold or silver 2. It was answered admitting that the King might do it his losse and charge was more then of his Subjects both in the Case of money and in the Case of warre the pardon was private out of grace and no man had danger or losse by it and so the making of Denizens the King was onely the looser vizt where hee had double Customes to have single 3. It was a non sequitur the King may doe these things ergo hee may imprison at will Your Lordships are now advised by those that cannot be daunted for feare nor misled by affected reward or hope of preferment that is of the dead 1 By ancient and many Acts of Parliament in the point besides Magna Charta which hath beene 30 times confirmed and commanded to be put in execution whereto the Kings of England have 30 times given their royall assent 2 Judiciall Presidents of grave and reverend Judges in terminis terminantibus that long since are departed this world 3 And lastly per vividas rationes manifest and apparent reasons Wee of the House of Commons have upon great Studie and serious consideration made a great manifesto unanimously nullo contradicente concerning this great liberty of the Subject and have vindicated and recovered the body of this fundamentall liberty both of your Lordships and of our selves from shadowes which sometimes of the day are long sometimes short and sometimes long againe And therefore no Judges are to be led by them your Lordships are involved in the same danger and therefore ex congruo condigno Wee desired a conference to the end your Lordships may make the like declaration as we have done Commune periculum requireth commune auxilium and thereupon take such further course as may secure both your Lordships and us and all your and our posterities in enjoying our ancient undoubted and fundamentall liberties FINIS The substance of the obiections made by M. Attorney Generall before a Committee of both Houses to the Argument that was made by the House of Commons at the first conference with the Lords out of Presidents of Record and resolutions of the ludges in former times touching the liberty of the person of every Freeman and the answers and replies then presently made by the House of Commons to those objections M. Attorneyes objections AFter the first conference which was desired by the Lords and had by a Committee of both Houses in the painted Chamber touching the reasons lawes acts of Parliament and Presidents concerning the liberty of the person of every Freeman M. Attorney Generall being heard before a Committee of both Houses as it was assented by the House of Commons that hee might be before they went up to the conference after some preamble made wherein hee declared the answering of all reasons of Law and Acts of Parliament came onely to the Presidents used in the Arguments before delivered and so endevoured to weaken the strength of them that had bin brought on the behalfe of the Subject to shew that some were directly contrary to the Law comprehended in the resolutions of the House of Commons touching the bayling of prisoners returned upon the Writ of Habeas Corpus to be committed by the speciall command of the King or of the Counsell without any cause shewed for which they ought by Law to be committed And the course that was taken which it pleased the Committee of both Houses to allow of was that M. Attorney should make his objections to every particular President and that the Gent. appointed and trusted by the House of Commons by severall replies should satisfie the Lords touching the severall objections made by him against or upon every particular as the order of the Presidents should lead them He began with the first 12 Presidents that were used by the House of Commons at the conference desired by them to prove that prisoners returned to stand so committed were delivered by bayle by the Court of Kings Bench. Objection al Bildestons Case cite devant fo 35. 55. The first was that of Bildestons Case in 18 Ed. 3. Rot. 33. To this he objected 1. That in thereturne of him into the Court it did not appeare that this Bildeston was committed by the Kings Command And secondly that in the Record it did appeare also that he had beene committed for suspition of counterfetting of the great Seal and so by consequence was bayleable in the Law in regard there appeared a cause why hee was committed in which case it was granted by him as indeed it is plaine and agreed of all hands that the prisoner is bayleable though committed by the Command of the King And he said that this part of Record by which it appeared hee had beene committed for this suspition of treason was not observed to the Lords in their Argument before used And he shewed also to the Lords that there were three severall kinds of Records by which the full truth of every award or bayling upon a habeat corpus is knowne First by the remembrance roll wherein the award is given Secondly the file of the Writ and the returne Thirdly The Scruet Roll or Scruet Finn ' wherein the Bayle is entred and that onely the remembrance roll of this case was to be found and that if the