commandement by Letters from the King That whereas the Earl of Warwick had commanded divers persons to the custody of the said Sheriffe the King sent a Letter to the said Sheriffe commanding that those who were committed to his custody by the Earl of Warwick he should shew no grace to them that is they should not be bailed The Sheriffe notwithstanding this command lets some of those prisoners to bail whereupon he was complained of in Parliament that he had done against the Kings commandement and he was condemned for it This was a Parliament I wonder this should be done in Parliament and that it was not said there That this commitment being done by the Kings commandment was not good no he was condemned in Parliament for it was one that did break the Statute of Westm primo My Lord the use that I make of this Record is this It recites that the Earl of Warwick committed divers it might be that he did commit them by direction from the King but the Record mentioneth not so much but it shews that the King by Letters commanded the Sheriffe that he should shew those persons no grace and yet he did he was examined upon this and by Parliament committed The next matter I will offer to your Lordships judgement for the true exposition of the Law in this case is the Book we call the Register an authority respected it is the foundation of all our Writs at the Common Law I bring not the Book Register fol. 77 c. In this Book there is one Writ saith thus Rex c. Quod replegiar ' fac ' A. nisi fuerit per speciale mandatum domini Regis Iustice Doderidge In what Writ is that De homine replegiando Atturney Generall Yea in the Writ De homine replegiando and there is another Writ directed to the Constable of Dover in the very same words by which it appears that they that are imprisoned by the Kings command non sunt replegiabiles F.N.B. 66. f. Master Fitzherbert a grave Judge and is in authority with us perusing these Writs expressed it in these words plainly There are some cases wherein a man cannot have this Writ although he be taken and detained in Prison as if he be taken by the death of a man or if he be taken by the commandement of the Kings Justices and mentions not chief Justice which I beleeve is to be intended not of the chief of the Court of Judicature but of the chief Justice of England for there was such a one in those days Thus my Lord you see the opinion of Master Fitzherbert in this case The next thing that I will shew your Lordship is the opinion of Master Stamford in his Pleas of the Crown Fol. 72. where he sets down the Statute of Westminster primo and then he addes That by this appears in four cases at the Common Law a man is not replevisable In those that were taken for the death of a man or by the commandment of the King or of his Justices or of the Forest And there he saith That the commandment of the King is to be intended either the commandment of his mouth or of his Councell which is incorporated to him and speak with the mouth of the King My Lord I shall desire no better Commentaries upon a Law then these reverent grave Judges who have put books of Law in Print and such Books as none I beleeve will say their judgements are weak The next thing I shall offer unto your Lordship is this that I cannot shew with so great authority as I have done the rest because I have not the thing it self by me but I will put it to your Lordships memory I presume you may well remember it It is the resolution of all the Judges which was given in the four and thirtieth of Queen Elizabeth it fell out upon an unhappy occasion which was thus The Judges they complain that Sheriffes and other Officers could not execute the processe of the Law as they ought for that the parties on whom such processe shall be executed were sent away by some of the Queens Councell that they could not be found the Judges hereupon petitioned the Lord Chancellor that he would be a suitor to her Majesty that nothing be done hereafter And thereupon the Judges were desired to shew in what cases men that were committed were not bailable whether upon the commitment of the Queen or any other The Judges make answer That if a man shall be committed by the Queen by her command or by the Privy Councell he is not bailable If your Lordship ask me what authority I have for this I can onely say I have it out of the Book of the Lord Anderson written with his own hand My Lord I pray you give me leave to observe the time when this was done It was in a time and we may truly call it a good time in the time of good Queen Elizabeth and yet we see there was then cause of complaint and therefore I would not have men think that we are now grown so bad as the opinion is we are for we see that then in those times there was cause of complaint and it may be more then is now This my Lord was the resolution of all the Judges and Barons of the Exchequer and not by some great one Now I will apply my self to that which hath been enforced by the Councell on the other side which was the reason that the Subject hath interest in this case My Lord I do acknowledge it but I must say that the Soveraign hath great interest in it too And sure I am that the first stone of Soveraignty was no sooner laid but this power was given to the Soveraign If you ask me whether it be unlimited my Lord I say it is not the question now in hand But the Common Law which hath long flourished under the Government of our King and his Progenitors Kings of this Realm have ever had that reverent respect of their Soveraign as that it hath concluded the King can doe no wrong And as it is in the Lord Berklies Case in Plowdens Com. 246. b. it is part of the Kings Prerogative that he can doe no wrong Title Travers 5. In the fourth of Edward the fourth fol. 25. the King cannot be a disseisor and so it is also in the Lord Berklies Case in 32 H. 8. Dier fol. 8. The King cannot usurp upon a Patron for the Common Law hath that reverent respect to him as that it cannot conceive he will doe any injury But the King commits a Subject and expresseth no cause of the commitment what then shall it be thought that there is no cause why he should be committed Nay my Lord the course of all times hath been to say there is no cause expressed and therefore the matter is not ripe and thereupon upon the Courts of Judicature have ever rested satisfied therewith they would not search into it My
E. 3. c. 3. By the statute 25 Ed. 3. cap. 4. It is ordained and established that no man from henceforth shall be taken by petition or suggestion made to the King or his Councell but by indictment or course of Law and accordingly it was enacted 42 E. â— cap. 3. the title of which statute is None shall be put to answer an accusation made to the King without presentment Then my Lord it being so although the cause should not need to be expressed in such manner as that it may appear to be none of these causes mentioned in the statute or else the Subject by this return loseth the benefit and advantage of these Laws which be their birth-right and inheritance but in this return there is no cause at all appearing of the first commitment and therefore it is plain that there is no cause for your Lordship to remand him but there is cause you should deliver him since the writ is to bring the body and the cause of the imprisonment before your Lordship But it may be objected that this writ of Habeas corpus doth not demand the cause of the first commitment but of the detaining onely and so the writ is satisfied by the return for though it shew no cause of the first commitment but of detaining only yet it declareth a cause why the Gentleman is detained in prison this is no answer nor can give any satisfaction for the reason why the cause is to be returned is for the Subjects liberty that if it shall appear a good and sufficient cause to your Lordship then to be remanded if your Lordship think and finde it insufficient hee is to bee enlarged This is the end of this writ and this cannot appeare to your Lordship unlesse the time of the first commitment be expressed in the return I know that in some cases the time is not materiall as when the cause of the commitment is and that so especially returned as that the time is not materiall it is enough to shew the cause without the time as after a conviction or triall had by Law But when it is in this manner that the time is the matter it self for intend what cause you will of the commitment yea though for the highest cause of treason there is no doubt but that upon the return thereof the time of it must appear for it being before triall and conviction had by Law it is but an accusation and he that is onely accused and the accusation ought by Law to be let to bail But I beseech your Lordship to observe the consequence of this Cause If the Law be that upon this return this Gentleman should be remanded I will not dispute whether or no a man may be imprisoned before he be convicted according to the Law but if this return shall be good then his imprisonment shall not continue on for a time but for ever and the Subjects of this Kingdome may be restrained of their liberties perpetually and by Law there can be no remedy for the Subject and therefore this return cannot stand with the Laws of the Realm or that of Magna Carta Nor with the statute of 28 Ed. 3. ca. 3. for if a man be not baileable upon this return they cannot have the benefit of these two Laws which are the inheritance of the Subject If your Lordship shall think this to be a sufficient cause then it goeth to a perpetuall imprisonment of the Subject for in all those causes which may concern the Kings Subjects and are appliable to all times and cases we are not to reflect upon the present time and government where justice and mercy floweth but we are to look what may betide us in the time to come hereafter It must be agreed on all sides that the time of the first commitment doth not appear in this return but by a latter warrant from the Lords of the Councell there is a time indeed expressed for the continuing of him in prison and that appears but if this shall be a good cause to remand these Gentlemen to prison they may lie there this seven years longer and seven years after them nay all the days of their lives And if they sue out a writ of Habeas corpus it is but making a new warrant and they shall be remanded and shall never have the advantage of the Laws which are the best inheritance of every Subject And in Ed. 3. xfol 36. the Laws are called the great inheritance of every Subject and the inheritance of inheritances without which inheritance we have no inheritance These are the exceptions I desire to offer up to your Lordship touching the return for the insufficiency of the cause returned and the defect of the time of the first commitment which should have been expressed I will not labour in objections till they be made against me in regard the statute of Westminster primo is so frequent in every mans mouth that at the Common Law those men that were committed in four cases were not replevisable viz. those that were taken for the death of a man or the commandment of the King or his Justices for the forest I shall speak something to it though I intend not to spend much time about it for it toucheth not this Case we have in question For that is concerning a Case of the Common Law when men are taken by the Kings writs and not by word of mouth and it shall be so expounded as Master Stamford fol. 73. yet it is nothing to this Case for if you will take the true meaning of that statute it extends not at all to this writ of Habeas corpus for the words are plain they shall be replevisable by the Common writ that is by the writ de homine replegiando directed to the Sheriffe to deliver them if they were baileable but this Case is above the Sheriffe and he is not to be Judge in it whether the cause of the commitment be sufficient or not as it appears in Fitz Herbert de homine replegiando and many other places and not of the very words of the statute this is clear for thereby many other causes mentioned as the death of a man the commandment of the Justices c. In which the statute saith men are not replevisable but will a man conceive that the meaning is that they shall not be bailed at all but live in perpetuall imprisonment I think I shall not need to spend time in that it is so plain let me but make one instance A man is taken de morte hominis he is not baileable by writ saith this statute that is by the common writ there was a common writ for this Case and that was called de odio acia as appeareth Bracton Coron 34. this is the writ intended by the statute which is a common writ and not a speciall writ But my Lord as this writ de odio acia was before this statute so it was afterwards taken away by
Domini Regis mihi nunciatum per Robertum Pecke now our case is by the Nunciation of many but in Law majus minus non variant in spetione the certification of one and of many is of the same effect although in morall understanding there may bee a difference Trin. 2 Ed. 3. Rot. 46. in this Court in 21 Ed. 3. in the printed Book there is a peece of it The Abbot of Burey brings a prohibition out of this Court the Bishop of Norwich pleadeth in Bar of that Quod mihi testificatum quod continetur in Archivis that he is excommunicated there were two exceptions taken to this case in this president and they are both in one case the first was that no case appeareth why he was excommunicated there may be causes why he should be excommunicated and then he should be barred and there may be causes why the excommunication should not barre him for it may be the excommunication was for bringing the action which was the Kings writ and therefore because there was no cause of the excommunication returned it was ruled that it was not good The other reason is that upon the Roll which is mihi testificatum Now every man when he will make a Certificate to the Court Proprium factum suum non alterius significare debet he must inform the Court of the immediate act done and not that such things are told him or that such things are signified unto him but that was not done in this case and therefore it was held insufficient and so in this case of ours I conceive the return is insufficient in the form there is another cause my Lord for which I conceive this return is not good But first I will be bold to inform your Lordship touching the Statute of Magna Charta 29. Nullus liber homo capiatur vel imprisonetur c. nec super eum mittimus nisi per legale judicium parium suorum vel per legem terrae That in this Statute these words in Carcerem are omitted out of the printed Books for it should be nec eum in Carcerem mittimus For these words per legem terrae what Lex terrae should be I will not take upon me to expound otherwise then I finde them to be expounded by Acts of Parliament and this is that they are understood to be the processe of the Law sometimes by writ sometimes by attachment of the person but whether speciale mandatum Domini Regis be intended by that or no I leave it to your Lordships exposition upon two petitions of the Commons and answer of the King in 36 Ed. 3. n o 9. and n o 20. In the first of them the Commons complain that the great Charter the Charter of the Forest and other Statutes were broken and they desire that for the good of himselfe and of his people they might be kept and put in execution and that they might not be infringed by making an arrest by speciall command or otherwise and the answer was that the assent of the Lords established and ordained that the said Charter and other Statutes should be put in execution according to the petition and that is without any disturbance by arrest by speciall command or otherwise for it was granted as it was petitioned In the same year for they were very carefull of this matter and it was necessary it should be so for it was then an usuall thing to take men by writs quibusdam de causis and many of these words caused many Acts of Parliament and it may be some of these writs may be shewn and I say in the same year they complained that men were imprisoned by speciall command and without indictment or other legall course of Law and they desired that thing may not be done upon men by speciall command against the great Charter The King makes answer that he is well pleased therewith that was the first answer and for the future he hath added farther if any man be grieved let him complain and right shall be done unto him This my Lord is an explanation of the great Charter as also the Statute of 37 Ed. 3. ch 18. is a Commentary upon it that men should not be committed upon suggestion made to the King without due proofs of Law against them and so it is enacted twice in one year Wee finde more printed Bookes as in Henry the sixth Mius de fiacts Fitz. 182. which is a strong case under favour in an action of Trespasse for cutting down trees the defendant saith that the place where the trees are cut is parcell of the Manor of B whereof the King is seised in fee and that the King did command him to cut them and the opinion of the Court was that this was no good plea without shewing the specialty of the command and they said if the King command me to arrest a man and I arrest him he shall have an action of false imprisonment against me although it were done in the Kings presence In 1 Ioh. cap. 7. fol. 46. it is in print and there we leave it Hussey Chief Justice saith that Sir Iohn Markham told King Edward the fourth that he could not arrest a man upon suspition of felony or treason as any of his Subjects might because if he should wrong a man by such arrest the parties could have no remedy against him if any man shall stand upon it here is a signification of the Kings pleasure not to have the cause of the commitment examined he hath here another signification of his pleasure by writ whereby the party is brought hither ad subjiciendum recipiendum that he hath made your Lordship Judge of that that should be objected against this Gentleman and either to punish him or to deliver him and if here be no cause shewn it is to be intended that the party is to be delivered and that it is the Kings pleasure it should be so and the writ is a sufficient warrant for the doing of it there being no cause shewn of the imprisonment and now my Lord I will speak a word to the writ of De homine replegiando and no other writ for that was the common writ and the four causes expressed in that Statute to wit the death of a man the command of the King or his Justices or Forest were excepted in that writ before that Statute made as appears Bracton 133. so that the writ was at the Common Law before that Statute And it apppears by our Books that if a man be brought hither by an Habeas corpus though he were imprisoned De morte hominis as in the 21 of Edward the fourth 7. Winckfield was bailed here this Court bailed him for he was brought hither ad subjiciendum recipiendum and not to he in prison God knows how long and if the Statute should be expounded otherwise there were no bailing men outlawed or breakers of prisons for they are not within this Statute and yet this
the same by whomsoever he be committed so ought the cause of his imprisonment to be shewn upon the return so that the Court may adjudge of the cause whether the cause of the imprisonment be lawfull or not and because I will not trouble the Court with so many presidents but such as shall suit with the cause in question I will onely produce and vouch such presidents whereas the party was committed either by the commandment of the King or otherwiâ—e by the commandment of the Privy Councell which Stampford fol. 72. tearmeth the mouth of the King such Acts as are done by the Privy Councell being as Acts done by the King himself And in all these causes you shall finde that there is a cause returned as well as a speciale mandatum domini Regis c. or mardatum Privati Concilii domini Regis whereby the Court may adjudge of the cause and bail them if they shall see cause In the eighth of Henry the seventh upon return of an Habeas corpus awarded for the body of one Roger Sherry it appeareth that he was committed by the Mayor of Windsor for suspition of felony and ad sectam ipsius Regis pro quibusdam feloniis et transgressionibus ac per mandatum domini Regis 21 Hen. the seventh upon the return of an Habeas corpus sent for the body of Hugh Pain it appeared that he was committed to prison per mandatum dominorum Privati Concilii domini Regis pro suspicione feloniae Primo Henrici Octavi Rot. 9. upon the return of an Habeas corpus sent for the body of one Thomas Harrison and others it appears that they were committed to the Earl of Shrewsbury being Marshall of the houshold Per mandatum domini Regis et pro suspicione feloniae et pro homicidio facto super Mare 3 4 Philip. et Mariae upon a return of an Habeas corpus sent for the body of one Peter Man it appeareth that he was committed pro suspicione feloniae ac per mandatum domini Regis et Reginae 4 5 Philippi et Mariae upon the return of an Habeas corpus sent for the body of one Thomas Newport it appeared that he was committed to the Tower pro suspicione contrafact mcnetae per privatum Concilium domini Regis et Reginae 33 Elizabethâ—… upon the return of an Habeas corpus for the body of one Lawrence Brown it appeareth that he was committed Per mandatum Privati Consilii dominae Reginae pro diversis â—ausis ipsam Reginam tangen ac etiam pro suspicione proditicnis So as by all these presidents it appeareth where the returne is either Per mandatum domini Regis or Per mandatum dominerum Privati Concilii domini Regis there is also a cause over and besides the mandatum returned as unto that which may be objected that per mandatum domini Regis or Privati Concilii domini Regis is a good return of his imprisonment I answer First that there is a cause for it is not to be presumed that the King or Councell would commit one to prison without some offence and therefore this mandatum being occasioned by the offence or fault the offence or fault must be the cause and not the command of the King or Councell which is occasioned by the cause Secondly it appears that the jurisdiction of the Privy Councell is a limited jurisdiction for they have no power in all causes their power being restrained in certain causes by severall Acts of Parliament Vide 4 Instit fol. 53. as it appeareth by the statute of 20 Edward the third c. 11. 25 Ed. the third c. 1. stat 4. the private petition in Parliament permitted in the 1 of R. 2. where the Commons petition that the Privy Councell might not make any Ordinance against the Common Law Customes or Statutes of the Realm the fourth of Henry the fourth ca. 3. 13 Hen. the fourth 7. 31 H. the sixth and their jurisdictions being a limited jurisdiction the cause and grounds of their commitment ought to appear whereby it may appear if the Lords of the Councell did commit him for such a cause as was within their jurisdiction for if they did command me to be committed to prison for a cause whereof they had not jurisdiction the Court ought to discharge me of this imprisonment and howsoever the King is Vicarius Dei in terra yet Bracton cap. 8. fol. 107. saith quod nihil aliud potest Rex in terris cum sit Minister Dei Vicarius quam solum quod de jure potest nec obstat quod dicitur quod Principi placet legis habet vigorem quia sequitur in fine legis cum lege Regia quae de ejus imperio lata est id est non quicquid de voluntate Regis temere praesumptum est sed animo condendi Jura sed quod consilio Magistratuum suorum Rege author praestant et habita super hoc deliberatione et tract rect fuer definit Potestat itaque suajuris est non injuriae The which being so then also it ought to appear upon what cause the King committeth one to prison whereby the Judges which are indifferent between the King and his Subjects may judge whether his commitment be against the Laws and Statutes of this Realm or not Thirdly it is to be observed that the Kings command by his Writ of Habeas Corpus is since the commandment of the King for his commitment and this being the latter commandement ought to be obeyed wherefore that commanding a return of the body cum causa detentionis there must be a return of some other cause then Per mandatum domini Regis the same commandment being before the return of the Writ Pasch 9 E. 3. pl. 30. fol. 56. upon a Writ of Cessavit brought in the County of Northumberland the Defendants plead That by reason the Country being destroyed by Wars with the Scots King Edward the second gave command that no Writ of Cessavit should be brought during the Wars with Scotland and that the King had sent his Writ to surcease the Plea and he averreth that the Wars with Scotland did continue Hearle that giveth the Rule saith That we have command by the King that now is to hold this Plea wherefore we will not surcease for any Writ of the King that is dead and so upon all these reasons and presidents formerly alledged I conclude that the return that Sir John Corbet was committed and detained in prison Per speciale mandatum domini Regis without shewing the nature of the commandement by which the Court may judge whether the commandement be of such a nature as he ought to be detained in prison and that without shewing the cause upon which the commandement of the King is grounded is not good As unto the second part which is Whether the time of the commitment by the return of the Writ not appearing unto the Court the Court ought to detain him in
prison or no I conceive that he ought not to be continued in prison admitting that the first commitment by the command of the King were lawfull yet when he hath continued in prison by such reasonable time as may be thought fit for that offence for which he is committed he ought to be brought to answer and not to continue still in prison without being brought to answer For it appears by the Books of our Laws that liberty is a thing so favoured by the Law that the Law will not suffer the continuance of a man in prison for any longer time then of necessity it must and therefore the Law will neither suffer the party Sheriffs or Judges to continue a man in prison by their power and their pleasure but doth speed the delivery of a man out of prison with as reasonable expedition as may be And upon this reason it is resolved in 1 2 El. Dyer 175. 8 Ed. 4. 13. That howsoever the Law alloweth that there may be no terme between the test of an originall Writ and the return of the same where there is only a summons and no imprisonment of the body yet it will not allow that there shall be a term between the test of a Writ of Capias and the return of the same where the body of a man is to be imprisoned insomuch that it will give no way that the party shall have no power to continue the body of a man imprisoned any longer time then needs must 39 E. 3. 7. 10 H. 7. 11. 6 E. 4. 69. 11. E. 4. 9. 48 E. 3. 1. 17 E. 3. 1 2 Hen. 7. Kellawaies Reports do all agree that if a Capias shall be awarded against a man for the apprehending of his body and the Sheriffe will return the Capias that is awarded against the party a non est inventus or that languidus est in prisona yet the Law will allow the party against whom it is awarded for the avoiding of his corporall penance and dures of imprisonment to appear gratis and for to answer For the Law will not allow the Sheriffe by his false return to keep one in prison longer then needs must 38 Ass pl. 22. Brooks imprisonment 100. saith That it was determined in Parliament that a man is not to be detained in prison after he hath made tender of his fine for his imprisonment therefore I desire your Lordship that Sir John Corbet may not be kept longer in durance but be discharged according to the Law The Lord Chief Justice his Speech Master Atturney you have heard many learned Arguments if you be provided to answer presently we will hear you but if you will have a longer day for that you are not provided to argue you may we will give it you Doderidge If you will you may see these presidents it may be you have not seen some of them and we must see them too Heath Atturney May it please your Lordship the Gentlemen that be of Councell with the Knights at the Barre they have said much and spoken very long for their Clients and to good purpose and pertinently It is a cause that carrieth with it a great deal of weight both towards the King and his Subjects also and I am not so hasty to put my self upon the main point of this cause when it is almost time for your Lordship to rise My Lord the Gentlemen have severally spoken and given and insisted upon severall reasons and they have cited many presidents I could say something of them at this present and that some of them have been mistaken and therefore I beseech your Lordship that I may have time to answer that I may not wrong the cause of the Kings part or slight the cause on the Subjects part But that which I desire to say now is that these Gentlemen have all of them gone in one form to divide the cause into two parts part 1 The first the form of the Return part 2 The second the matter of the Return For the form me thinks we may put an end to that now if your Lordship please that we may have no return to that another day but I may apply my self unto the matter of the Return To the form of the Return they have taken divers exceptions but they especially insisted upon two main heads First that the Return is not good because it is not an absolute Return I confesse the ground is well laid and the Major is good that if this Return be not positively the Return of the Warden of the Fleet himself but the relation of another it is no good Return therefore I need spend no time in that the ground being well laid but under your Lordships favour the Major proposition I deny we differ onely in that for I say that this Return is certain and that it is not the words of any man else but the express words of the Warden himself and that this is added ex abundanti to give satisfaction to the Court that he had order to make the Return therefore I desire your Lordship to cast your eyes upon the substance of the Return and distinguish it into parts The words are Detentus est in prisona sub custodia mea per speciale Mandatum domini Regis mihi significatum per Warrantum duorum Privati concilii dicti domini Regis c. If he had turned these words and said Detent ' est prout mihi significat ' per Warrantum duorum Privati concilii per speciale mandatum domini Regis then it might be taken to be the words of the Lords of the Councell but the first words being positive Detentus est per speciale mandatum domini Regis that is sufficient and the rest is surplusage and he doth not say prout mihi significut but mihi significat onely which is absolute and the resolution thereof resteth more in your Lordships expounding of the words then in putting any case upon them The second exception is taken to the form of the Return for that there is not the cause of the imprisonment returned but of the detaining alone My Lord I say no more to that but this No man is bound to answer more then that which is the contents of the Writ I know the Writ it may be to know specially the cause of the detaining or what the cause of the caption is onely and if the Officer make answer to that which is required of him in the Writ it is sufficient it may be there be presidents both ways I am sure there are detentions onely and there is no cause why the Officer should shew the time of his commitment but if the Prisoner shall desire it your Lordship may grant him a Writ to shew the cause both of his caption and detention also Thirdly they say that this Return is uncertain and that it is the Warrant of the Lords of the Councell and not of the King by which he is committed For that my
but temporary and it might be amended but my Lord they have mistaken the minor proposition for they have it as granted that there is an imperfect returne from the Lords of the Councell my Lord I shall intreat you to cast your eyes upon the Return and you shall finde the first words positive and affirmative the words are Quod detentus est sub custodia mea per speciale mandatum domini Regis the other words mihi significatum they follow after but are not part of the affirmation made before it but if they will have it as they seem to understand it then they must return the words thus Quod testificatum or significatum est mihi per dominos Privati Concilii quod detentus est per speciale mandatum domini Regis and then indeed it had not been their own proper return but the signification of another The Lords of the Councell the turning of the sentence will resolve this point the thing it self must speak for it selfe I conceive by your Lordships favour that it is plain and cleare here is a positive Return that the detaining is by the commandment of the King and the rest of the Return is rather satisfaction to my self and the Court then otherwise any part of the Return The second Objection hath dependence upon this as that he hath returned the cause of the cause and not the cause of it self wherein under your Lordships favour they are utterly mistaken for the Return is affirmative Ego Iohannes Liloe testifico c. I know that among the Logicians there are two causes there is Causa causans and Causa caussata the causa causans here in this case is not the warrant from the Lords of the Councell for that is causa causata but the Primary and Originall cause which is causa causans is speciale mandatum domini Regis the other is but the Councels signification or testification or warrant for him that made the Return To the third Objection that the Return is imperfect because it shews only the cause of the detaining in prison and not the cause of the first commitment My Lords for that I shall not insist much upon it for that I did say the last day which I must say again it is sufficient for an Officer of the Law to answer that point of the Writ which is in command Will your Lordship please to hear the Writ read and then to see whether the Wardens of the prisons have not made answer to so much as was in command Then the Writ was read by Master Keeling Heath Atturney Generall My Lord the Writ it selfe clears the Objection for it is to have the party mentioned in it and the cause of his detention returned into this Court and therefore the answer to that is sufficient Onely my Lord the Warden of the Fleet and the rest of the keepers of the prisons had dealt prudently in their proceedings if they had onely said that they were detained Per speciale Mandatum Domini Regis and it had been good and they might have omitted the rest but because if they should make a false Return they were liable to the actions of the party they did discreetly to have the certification of the Lords of the Councell in suspition that if this Return was not true they were liable to the actions of these Gentlemen In 9 H. 6. 40. 44. it is said that whatsoever the cause be that is returned it must be accepted by the Court they must not doubt of the truth of the Return and the Officer that shall return it is liable to an action if the Return be false and therefore the Guardian of the prisons did wisely because they knew this was a case of great expectation to shew from whom they had their warrant and so to see whether the cause returned bee true or not The last Objection to the Return is that it is contradictory in it self as that the first part of it is that they are detained in prison Per speciale mandatum Domini Regis but in this relation of it it shews that they are detained by the command of the Lords of the Councell for the words of their warrant are to require you still to detain him c. But my Lord if they will be pleased to see the whole warrant together they shall finde that the Lords of the Councell speak not their own words or command in that warrant but they say that you are to take notice of it as the words and command of the King for my Lord the Lords of the Councell are the servants to the King they signifie his Majesties pleasure to your Lordship and they say it is his Majesties pleasure you should know that the first commitment this present detaining him in prison are by his Majesties speciall commandment And this my Lord is all that I will say for the sufficiency of the form of the Return to prove that it is sufficient Touching the matter of the Return the main point thereof it is but a single question and I hope my Lord of no great difficulty and that is whether they be replevisable or not replevisable It appears that the commitment is not in a legall and ordinary way but that it is per speciale mandatum domini Regis which implies not onely the fact done but so extraordinarily done that it is notorious to be his Majesties immediate Act and will it should be so whether in this case they should be bailable or not in this Court which I acknowledge to be the highest Court of Judicature for such a case as is in question The Councell on the other side desire that they may be bailed and have concluded that they may not be remaunded their grounds of argument though they were many that did speak I have in my collection divided into five points The first was reasons that they must be so arising from the inconveniences that would fall to the subjects if it should not be so in the main points of their liberty The second was they shewed divers Authorities out of their Law books which they endeavoured to apply The third was Petition of the Commons answered by severall Kings in Parliament The fourth was Acts of Parliament in Print The last was Presidents of divers times which they alledged to prove that men committed by the Kings commandment and by the commandment of the Lords of the Privy Councell which I conceive to be all one for the body of the Privy Councell represents the King himself that upon such commitment in such causes men have been bailed In the course of my Arguments I will follow their method first to answer their reasons and then those Books which they have cited which I conceive to be pertinent to this question and then the Petition and Answer made in Parliament and then their Acts of Parliament next their Presidents and lastly I will give your Lordship some reasons of my owne which I hope shall sufficiently satisfie your
signification of the command was given by Master Peck of Cliffords Inne but there the Warrant shews the cause of the commitment was for the peace and suspition of felony and therefore he was bailed The next was in 40 Eliz. Wendons Case but my Lord that commitment was out of the Star-chamber by an ordinary course Then they cited 8 Jac. Thomas Caesars Case he indeed was committed by Speciale mandatum domini Regis and brought his Habeas Corpus but the Roll saith remittitur and is that a Warrant for them to say that he was delivered Then Sir Thomas Vernons Case was cited and my Lord when we looked into the Records we found that he was committed for suspition of Treason and he was tried for it and discharged The next president was Sir Thomas Monsons Case I wonder that they did cite that for he was committed by the Lords of the Councell indeed but the ground of it was the suspition of the death of Sir Thomas Overbury and he was discharged again by the Lords of the Councell Certainly if you had known this you would not have named this as a president for you The next was Reynors Case he my Lord was one of the Gunpowder-Treason and yet there was a Warrant to discharge him too And therefore what these presidents are I shall submit to your Lordship I must confesse when they are cited together they make a great noise but when they are examined severally they prove nothing My Lord there is one more president of these that were cited here before your Lordship and I hope that one shall be as none It was mentioned to be Lawrence Browns Case 30 Eliz. I know not what it is but it is like to be of the same value as the rest Pro certis causis eos moventibus c. And thus my Lord I have gone through those presidents that were alledged here before your Lordship and now I will come to these presidents that were brought to me and not mentioned here The first was John Brownings Case in 21 H. 8. My Lord these presidents came not to me before Saturday last about candle-lighting and yesterday was no time fitting to search out presidents and how could I then search for this The next was William Rogers Case of the same time But the cause is expressed to be for suspition of felony which is a cause within the Jurisdiction of this Court Newports Case was the like in 4 5 Phil. Mar. and so was Thomas Lawrence Case 9 Eliz. and Edw. Harecourts Case 5 Eliz. which was for suspition of felony Richard Beckwith and not Barkwith as was cited for they have mistaken both names and matters was committed Per speciale mandatum domini Regis and the Record saith he was bailed But it was by reason of a letter from the Lords of the Councell The cause of Peter mans commitment in the 4 and 5 of Philip and Mary appears to be for suspition of felony and robbery For Reynors case it is the same with Beckwith and were both for one thing In the eighth of Henry the seventh one Rog Cherry was committed Per mandatum domini Regis and it was for a criminall case and he was afterwards indicted and acquited and delivered And there is another president thereof that saith he was afterwards arraigned condemned and hanged we have the Record of it And now my Lord I will shew some presidents on the other side where men have been committed by the commandement of the King and by the commandement of the Councell and have been delivered again by their directions And of this kinde there be two in the Tower that as they were committed by Warrant so by Warrants again for their bailing they were delivered the offences were against the Forest and for Murther In the fourth of Edward the third M. 4. Edmond de Newport in Essex was indicted for an offence committed by him in the Forest And M. 7. John Fox was likewise indicted for an offence by him done in the Forest and there be two Warrants to bail them M. 20. John Cobb was the like and there was a letter from the King Quod ponatur in Ballium usque ad proximam Assisam These were offences within Westminster primo and there be severall Warrants to bail them The Clark of this Court hath many Records by which it appeareth that many have been committed by the command of the King and of the Queen and of the Councell and brought their Habeas Corpus and the successe was that many of them were committed to the same Prisons and divers were committed to the Marshall of this Court the reason was for that many of them were to appear here their causes being triable here and it would have been a great trouble to send them back so farre to Prison as into the Countries and therefore they were delivered to the Marshall of the Kings Houshold again many had their Trials in this Court and some suffered and some were delivered by speciall command as they were committed by speciall command The number of these of this nature are infinite that have been in our times we have found some forty presidents of men committed out of the Chancery and by the High Commission for contempts and some by the Barons of the Exchequer and some in London that have been brought hither by Habeas corpus Of this I shall observe that in the 11 Iacobi there was a private Constitution in London made between the white Bakers that they might live one by another and the one not to invade the others liberties and for contempt against this Ordinance some were committed to prison as Thomas Heanning and Littlepage they had a Habeas corpus and the cause was shewn to be by reason of the said Constitution and thereupon the prisoners were sent back to London to abide the Order of the Mayor for my Lord this Court hath been ever carefull not to examine the Decrees of the Chancery or Court of Requests but have only looked whether the cause returned be within the jurisdiction of this Court nor have they called in question the by-laws and constitutions of London but they send them back to the court of Justice that committeth them And hath this Court been so carefull of these inferiour Courts to this which is the chief and when the King who is the head of Justice shall commit a man shall not they be as carefull to do the like Justice to them But when the King saith to them the commitment was by my warrant and commandment will you question this and whether this commitment be good or no I hope you will not And now my Lords touching some presidents which have been taken out of their own shewing I shall make it appear that as they have been committed by the King or Councel so they had warrants also to discharge them and they my Lords are two ancient Records the first is 7 H. 7. Rot. 6. the other Rot. 73.