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
the Records and after the King releaseth his commandment and that the outlawry should be reversed and for the felony he was bailed Vide the Record So that you may see the offences mentioned in the Warrant for the commitment were triable here and when the King releases his commandment they were bailed for the rest but they that were committed by the commandment of the King were released by the King In 7 H. 7. the Cases of William Bartholmew Henry Carre and others is to the same effect by all which you may see that when the King releaseth his commandment they were bailed for the rest and as they were committed by the Kings commandment so they were released by the Kings command Now here I shall trouble you with no more presidents and you see your own what conclusion they produce And those strong presidents alledged on the other side we are not wiser then they that went before us and the common custome of the Law is the Common Law of the Land and that hath been the continuall common custome of the Law to which we are to submit for we come not to charge the Law but to submit to it We have looked upon that president that was mentioned by Master Atturney The resolution of all the Judges of England in 34 Eliz. we have considered of the time and I think there were not before nor have been since more upright Judges then they were Wray was one and Anderson another In Easter Term this was certified under the hands of all the Judges of England and Barons of the Exchequer in a duplicate whereof the one was delivered to the Lord Chancellor and the other to the Lord Treasurer to be delivered to the Queen We have compared our copies not taking them the one from the other but bringing them we have long had them by us together and they all agree word for word and that which M. Atturney said he had out of Judge Andersons Book and it is to this purpose to omit other things That if a man be committed by the commandment of the King he is not to be delivered by a Habeas Corpus in this Court for we know not the cause of the commitment Vide this at the latter end of the first part of Master Seldens Argument as aforesaid But the Question now is Whether we may deliver this Gentleman or not you see what hath been the practice in all the Kings times heretofore and your own Records and this resolution of all the Judges teacheth us and what can we do but walk in the steps of our forefathers If you ask me which way you should be delivered we shall tell you we must not counsell you Master Atturney hath told you that the King hath done it and we trust him in great matters and he is bound by Law and he bids us proceed by Law as we are sworn to do and so is the King and we make no doubt but the King if you seek to him he knowing the cause why you are imprisoned he will have mercy but we leave that If in Justice we ought to deliver you we would do it but upon these grounds and these Records and the presidents and resolutions we cannot deliver you but you must be remanded Now if I have mistaken any thing I desire to be righted by my brethren I have indeavoured to give the resolutions of us all TO THE KINGS MOST EXCELLENT MAIESTY The humble Petition of Sir John Elliot Knight Prisoner in the Gatehouse concerning the LOANE Delivered the 10th of Novemb 1627. but never answered SHEWETH THAT your poore suppliant affected with sorrow and unhappinesse through the long sense of your Majesties displeasure willing in every act of duty and obedience to satisfie your Majesty of the loyalty of his heart then which he hath nothing more desired that there may not remain a jealousie in your royall breast that stubbornnesse and will have been the motives of his forbearing to condescend to the said Loan low as your Highnesse foot with a sad yet a faithfull heart for an Apology to your Clemency and Grace he now presumes to offer up the Reasons that induced him which he conceiveth necessity of his duty to Religion Justice and your Majesty did inforce The Rule of Justice he takes to be the Law impartiall Arbiter of Governments and obedience the support and strength of Majesty the observation of that Justice by which subjection is commanded Religion adding to these power not to be resisted binde up the conscience in an Obligation to that rule which without open prejudice and violence of these duties may not be impeached In this particular therefore for the Loan being desirous to be satisfied how farre the Obligation might extend and resolving where he was left master of his own to become servant to your will he had recourse unto the Laws to be informed by them which in all humility he submitteth to your most sacred view in the Collections following In the time of Edw. 1. he findeth that the Commons of that age were so tender of their Liberties as they feared even their own free Acts and gifts might turn them to a Bondage and their heires wherefore it was desired and granted 25 E. 1. That for no businesse such manner of Aids Taxes nor Prizes should be taken but by common assent of the Realm and for the common Profit thereof The like was in force by the same King and by two other Laws again enacted Stat. Tallage 33 E. 1. That no Tallage or Aid should be taken or levied without the good will and assent of the Archbishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land And that prudent and magnanimous Prince Edward the third led by the same Wisdome having granted That the greatest gift given in Parliament for the aid and speed of his matchlesse undertaking against France should not be had in example nor fall to the prejudice of the Subject in time to come did likewise adde in confirmation of that Right That they should not from thenceforth be grieved to sustain any charge or aid but by the common assent and that in Parliament And more particularly upon this point upon a Petition of the Commons afterwards in Parliament it was established Rot. 16. 25 E. 3. That the Loans which are granted to the King by divers persons be released and that none from henceforth be compelled to make such Loans against their wills because it is against reason and the Franchises of the Land and restitution be made to such as made such Loans And by another Act upon a new occasion in the time of Richard the third it was ordained That the Subject in no wise be charged with any such charge exaction or imposition called a Benevolence nor such like Charge and that such like exactions be damned and annulled for ever 1 R. 3. Such were the opinions of these times for all these Aids Benevolences Loans and such like charges exacted
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
Court doth it at pleasure But plainly by the Statute it self it appears that it meant only to the common writ for the preamble recites that the Sheriffs and other have taken and kept in prison persons detected of felony and let out to plevin such as were not reprisable to grieve the one party and to the gain of the other and forasmuch as before this time it was not determined what prisoners were reprisable which not but onely in certain cases were expressed therefore it is ordained c. Now this is no more but for direction of the keepers of the prisons for it leaves the matter to the discretion of the Judges whether bailable or no not of the Judges for when the Statute hath declared who are repleviable who are not as men outlawed have abjured the Realm Proves such as be taken in the manner breakers of prisons burners of houses makers of false money counterfeiting of the Kings Seal and the like it is then ordained that if the Sheriffe or any other let any goe at large by surety that is not reprisable if he be Sheriffe Constable or any other that hath the keeping of prisons and thereof be attainted he shall lose his office and fee for ever so that it extends to the common Gaolers and keepers of prisons to direct them in what cases they shall let men to bail and in what cases not that they shall not be Judges to whom to let to replevin and whom to keep in prison but it extends not to the Judges for if the makers of the Statute had meant them in it they should have put a pain upon them also So then I conclude upon these under your Lordships favour that as this case is there should have been a cause of the commitment expressed for these Gentlemen are brought hither by writ ad subjiciendum if they be charged and ad recipiendum if they be not charged and therefore in regard there is no charge against them whereupon they should be detained in prison any longer we desire that they may be bailed or discharged by your Lordship Master Seldens Argument at the Kings Bench Bar the same day My Lords I am of Councell with Sir Edmond Hampden his case is the same with the other two Gentlemen I cannot hope to say much after that that hath been said yet if it shall please your Lordship I shall remember you of so much as is befallen my lot Sir Edmond Hampden is brought hither by a writ of Habeas corpus and the keeper of the Gatehouse hath returned upon the writ that Sir Edmond Hampden is detained in prison per speciale mandatum domini Regis mihi significatum per Warr antum duorum Privati Concilii dicti domini Regis and then he recites the warrants of the Lords of the Councel which is that they doe will and require him to detain this Gentleman still in prison letting him know that his first imprisonment c. May it please your Lordship I shall humbly move you that this Gentleman may also be bailed for under favour my Lord there is no cause in the return why he should be any farther imprisoned and restrained of his liberty My Lord I shall say something to the form of the writ and of the return but very little to them both because there is a very little left for me to say My Lord to the form I say it expresseth nothing of the first caption and therefore it is insufficient I will adde one reason as hath been said the Habeas corpus hath onely these words quod habeas corpus ejus una cum causa detentionis non captionis But my Lord because in all imprisonment there is a cause of caption and detention the caption is to be answered aswell as the detention I have seen many writs of this nature and on them the caption is returned that they might see the time of the caption and thereby know whether the party should be delivered or no and that in regard of the length of his imprisonment The next exception I took to the form is that there is much incertainty in it so that no man can tell when the writ came to the keeper of the prison whether before the return or after for it appears not when the Kings command was for the commitment or the signification of the Councell came to him It is true that it appears that the warrant was dated the seventh of November but when it came to the keeper of the prison that appeares not at all and therefore as for want of mentioning the same time of the caption so for not expressing the same time when this warrant came I think the return is faulty in form and void And for apparent contradiction also the return is insufficient for in that part of the return which is before the warrant it is said quod detentus est per speciale mandatum domini Regis the warrant of the Lords of the Councell the very syllables of that warrant are that the Lords of the Councell doe will and require him still to detain him which is contrary to the first part of the return Besides my Lord the Lords themselves say in another place and passage of the warrant that the King commanded them to commit him and so it is their commitment so that upon the whole matter there appears to be a clear contradiction in the return and there being a contradiction in the return it is void Now my Lord I wil speak a word or two to the matter of the return and that is touching the imprisonment per speciale mandatum domini Regis by the Lords of the Councell without any cause expressed and admitting of any or either of both of these to be the return I think that by the constant and settled Laws of this kingdome without which we have nothing no man can be justly imprisoned by either of them without a cause of the commitment expressed in the return My Lord in both the last Arguments the statutes have been mentioned and fully expressed yet I will adde a little to that which hath been said The statute of Magna Carta cap. 29. that statute if it were fully executed as it ought to be every man would enjoy his liberty better then he doth The Law saith expresly no Free-man shall be imprisoned without due processe of the Law out of the very body of this Act of Parliament besides the explanation of other statutes it appears Nullus liber homo capiatur vel imprisonetur nisi per legem terrae My Lord I know these words legem terrae doe leave the question where it was if the interpretation of the Statute were not But I think under your Lordships favour there it must be intended by due course of Law to be either by presentment or by indictment My Lords if the meaning of these words Per legem terrae were but as we use to say according to the lawes which leaves the matter very
Lord I say that if it had all been left out and he had onely said Detentus fuit per speciale mandatum domini Regis it had been sufficient but when he doth more it is superfluous and not necessary for it appeared before by whom he was committed and when he returns the Warrant of the Lords of the Councell it is not their words that commit him but they being the Representative Body of the King they doe expresse what the Kings command is but they signifie nothing of their own and therefore I desire your Lordship to deliver your opinion in that point of the Return whether it be positive or no. This cause as it greatly concerns the Subjects so it much concerns the King too I am sorry there should be any occasion to bring these things in question but since it is now here I hope I shall give satisfaction to your Lordship and to the parties too and I desire that I may have Munday for it Hide Chief Justice I think it is not best for us to declare our opinions by peece-meals but upon all the case together and as well as you are a stranger to the Return so are we and there be many presidents and Acts of Parliament not printed which we must see Doderidge This is the greatest cause that ever I know in this Court our Judgements that we give between party and party between the King and the meanest Subject ought to be maturely advised on for so are the entries of our judgements Quod matura deliberatione habita It was judged c. And we must see the presidents and Acts of Parliament that we hear mentioned Justice Jones Master Atturney if it be so that the Law of Magna Charta and other Statutes be now in force and the gentlemen be not delivered by this Court how shall they be delivered apply your self to shew us any other way to deliver them Doderidge Yea or else they shall have a perpetuall imprisonment Per Curiam Munday was appointed for the Atturneys Argument and in the interim the Councell for the gentlemen were by order appointed for to attend the Judges with all the presidents and unprinted Statutes which they mentioned and that they should let the Atturney see them also And the gentlemen being asked if they desired to come again answered they did and a Rule was entred for it On Munday the 27 of Tertio Michaelis 3º Caroli Regis in Banco Regis Sir John Corbet Sir Walter Earle Sir Edmund Hampden and Sir John Henningham Knights were brought to the Barre Heath Atturney Generall MAY it please your Lordship these gentlemen Sir Walter Earle Sir John Corbet Sir Edmund Hampden and Sir John Henningham upon their motion to this Court to have their Habeas Corpus and that themselves and the cause of their detaining them in their severall Prisons might be brought before your Lordship had it granted to them My Lord at the first motion of it the knowledge thereof of comming and that they had such a desire his Majesty was very willing to grant unto them as to all his Subjects this common case of Justice and though it be a case which concerns himself in a high degree yet he hath been so gracious and so just as not to refuse to leave the examination and determination thereof to the Laws of this Kingdome My Lord it is very true that this is a very great Cause and hath raised a great expectation and for the manner of it more then was necessary but my Lord I am afraid these gentlemen whom it concerns have rather advised their Councell then their Councell them but I shall take the case as now I finde it and as the gentlemens Councell on the other side have led me the way to it My Lord the exceptions that have been taken by the Councell on the other side to the Return made by the Warden of the Fleet and the rest of the Guardians of severall Prisons have been two for renewing of your Lordships memory we will read one of the Returns they are all alike Then the Return was read for Sir John Henningham by Master Keeling Heath Atturney May it please your Lordship against this Return the Councell of the Gentlemen have taken some exceptions and have divided their objections into two main points The one the form the other the matter To the form they have objected four severall things First that the Return is not positive but referred to the signification made by another as the Lords of the Councell Secondly that the Keepers of the Prisons have not returned the cause of the commitment but the cause of the cause which is not good Thirdly that the Return is imperfect for that it shews onely the cause of the detaining in Prison and not the cause of the first commitment And lastly that the Return is contradictory in it self for that in the first part thereof there is a certification that the detaining of these gentlemen in prison is Per speciale mandatum domini Regis and when the Warrant of the Lords of the Councell is shewed it appears that the commitment is by the command of the King signified by the Lords of the Councell and by your Lordships favour I will give a severall answer to every of these severall objections And for the first that the Return is not positive and affirmative but depends upon and hath relation to some other and therefore it is not good I doe agree that the ground is true that if the Return be not positive it is not good we differ onely in the Minor That the Return is not positive and affirmative for I agree that these Book cases that have been put are good Law as 27 Ass pl. 65. that if the Sheriffe return that he hath sent to the Bailiffe of the hundred and he gives him that answer that is no good Return for the Sheriffs ought to make the Return as of his own act without naming of the Bailiffe of the Hundred in his Return for if he return Quod mandavi Ballivo itineranti qui habet Retorn omnium Brevium executionem eorund per Cartam domini Regis qui mihi dedit nullum Responsum this is not good if he were not Bailiffe of a Franchise or Signiory for so is 21 H. 7. fol. 4. There hath been cited to maintain these objections 20 Ed. 3. the Record I have perused and there I finde that the Bishop said that it is found in Archivis in the Record c. that he was excommunicated but it was found to be in Archivis c. and that is no positive return that it is so I will oppugne what hath been said by the Councell on the other side it must be granted that if the return here be not positive it is imperfect and in 5 H. 7. 28. it is said that an imperfect return is no return at all it is all one but if the return was so that was not much materiall for then it were
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
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
THE ARGVMENTS UPON THE WRIT OF Habeas Corpus IN THE COURT OF KINGS BENCH WHEREIN Are learnedly discussed not onely the severall Branches of the said Writ but also many Authorities as well of the Common as Statute Law and divers ancient and obscure Records most amply and elaborately debated and cleared TOGETHER With the Opinion of the Court thereupon Whereunto is annexed The Petition of Sir Iohn Elliot Knight in behalf of the Liberty of the Subject LONDON Printed by M. F. for W. Lee M. Walbancke D. Pakeman and G. Bedell 1649. ARGUMENTS upon the Habeas Corpus concerning Loans Sir Thomas Darnell his Case Michaelis 3º Caroli Banco Regis SIR Thomas Darnell Baronet being imprisoned in the Fleet by vertue of a warrant signed by the Kings Atturney Generall upon the third of November by Sergeant Bramston his assigned Councell moved the Justices of the Kings Bench to grant him a Writ of Habeas Corpus cum causa directed to the Warden of the Fleet to shew that Court the cause of his imprisonment that thereupon they might determine whether his restraint were legall or illegall and it was granted by the Court returnable Thursday following the 8th day of November On Thursday Sir Thomas Darnell expected that his Writ should be returned but it was delaied and it was moved that the return should be on Saturday the tenth of November which made Sir Thomas Darnell the more remisse in suing out an Alias upon his Habeas corpus On Saturday the Writ was not returned and thereupon the Kings Atturney Generall gave order for an Alias upon the Habeas corpus for Sir Thomas Darnell returnable upon Thursday morning the thirteenth of November by vertue of which Writ the Warden of the Fleet brings Sir Thomas Darnell to the Kings Bench and returneth as followeth Executio istius brevis patet in quadem schedula annexat ' huic brevi The Return was this Ego Henricus Liloe Miles gardianus prisone Domini Regis de le Fleet Serenissimo domino Regi certifico quod dict' Thomas Darnell Baronet detentus est in prisona praedict ' sub custodia mea virtute cujusdam Warranti duorum de privato Consilio mihi directi cujus tenor sequitur in his verbis viz. Whereas heretofore the body of Sir Thomas Darnell hath been committed to your custody these are to require you still to continue him and to let you know that he was and is committed by the speciall command of his Majesty c. Et haec est causa detentionis predict ' Thomae Darnell Sergeant Bramston May it please your Lordship I did not expect this Cause at this time neither did I hear of it untill I came now into the Hall and therefore I shall now humbly shew you what my Client hath informed me since my comming hither I understand by him that he expected not his comming to this place to day the writ by which he was brought hither was not moved for by him but was procured without his privity and seeing his case is so and that he perceives the cause of his comming which before he knew not his motion to your Lordship is that you would be pleased to let him have the Copy of the return and give him time to speak unto it and that this writ being not sent out by his procurement may not be field Heath Attorney Generall My Lords it is true that this Gent. Sir Thomas Darnell being imprisoned in the Fleet did heretofore move your Lordship for a Habeas Corpus c. and it was granted him and his Majesty being made acquainted therewith was very willing that he and all his people might have equall Justice and when they desire that which seemes to accord with the rules of the Law they should have it But it fell out so that on the day when the writ should have been returned the Warden of the Fleet did not return it as it was his duty to have done he did forbear to do it upon a commandement because it was conceived there being five at that time to appear the Court would have been straitned for want of time but I imagined that these gentlemen who did desire the writ before should have again been earnest to renew them which it seemes they did not This Habeas Corpus was sent out by speciall command because these gent. gave out in speeches and in particular this gent. That they did wonder why they should be hindred from triall and what should be the reason their writs were not returned nay his Majesty did tell me that they reported that the King did deny them the course of Justice and therefore hee commanded me to renew the writ which I did and think I may doe it ex officio Sir Thomas Darnell My Lords I knew not untill now but that I was committed by Mr. Atturneys warrant only and thereupon I did desire a Habeas corpus at the Barre which you were pleased to grant me but now I understand that my restraint is by another means and therefore I shall crave leave to have some time to speak to it And as for the words alledged against me as if I had spoken them I humbly pray they may be no disparagement to my cause for I do patiently referre my self to your grave censures as being accused of a fact whereof I am no ways guilty Hide Chiefe Justice You give a temperate and fair answer and now you may perceive the upright and sincere proceedings that have been in this businesse you did no sooner petition to have Councell assigned you but you had it granted to you for indeed we cannot deny it and I know not but that any Councell might have moved for you without having been assigned for you and yet have had no blame for it is the Kings pleasure his Lawes should take place and be executed and therefore doe wee sit here when you made a motion of the Habeas corpus that was likewise granted whether the commitment be by the King or others this Court is a place where the King doth sit in person and we have power to examine it and if it appears that any man hath injury or wrong by his imprisonment we have power to deliver and discharge them if otherwise he is to be remanded by us to prison again now it seems you are not ready to speak to this return if you desire further day we ought to grant it Sir Thomas Darnell My Lords I humbly desire it Chief Justice I know no cause why it should be denied Sergeant Bramston My Lords we shall desire the writ may not be filed and that we may have a Copy of the return Atturney Generall You cannot deny the filing of the writ if you desire to have a Copy of the return Chief Justice Although you be remanded at this time to prison because you are not ready to speak to the return we can adjorn you to a new day upon the Writ and so you may prepare your self but
if you will not have this filed there must go out a new Habeas corpus and thereupon must be another return Sergeant Bramston My Lord we desire some time that we may be advised whether we may proceed or not Lord Chief Justice Hide Will you submit your self to the King Sir Thomas Darnell My Lord I desire some time to advise of my proceedings I have moved many men and offered to retain them of my Councell but they refuse me and I can get none to be of councell with me without your assistance Chief Justice You shall have what Councell assigned you you will have or desire for no offence will be taken against any man that shall advise you in your proceedings in Law Atturney Generall I will passe my word they that do advise you shall have no offence taken against them for it and I shall give my consent to any way that you shall desire either that it may be filed or that it may not be filed for if you desire Justice you shall have it and the King will not deny it but if it shall be conceived as it is rumored that there was a deniall of Justice on the Kings part you must know that his Majesty is very tender of that And for the Gent. now he is brought hither I conceive but yet I leave it to your Lordships judgement that the writ must be filed and you must either deliver him or remand him or else it will be an escape in the Warden of the Fleet. Sir Thomas Darnell I would not have it thought that I should speak any thing against my Prince and for those words I doe deny them for upon my conscience they never came into my thought perhaps you shall find that they have been spoken by some other but not by any of us Chief Justice Hide Sir you have made a fair answer and I doubt not but Mr. Attorney will make the like relation of it you move for the not filing of the Writ if you refuse to have it filed whereby it should not be of Record you must have no Copy of it but if you will have it filed you shall have a Copy of it and further time to speak to it choose whether of them you will Sergeant Bramston We desire to have the return read once more and it was read as before Sergeant Bramston So as the writ may not be filed we will desire no copy of the return Chief Justice Hide Then the Gent. must return back again into the custody of the Warden of the Fleet and therefore I ask you whether you desire to come hither again upon this Writ or will you have a new one Sir Thomas Darnell I desire your Lordship that I may have time to consider of it Chief Justice Hide Then on Gods name take your own time to think of it Michaelis 3º Caroli Regis Thursday 22 November Sir John Corbet Baronet Sir Walter Earle Sir John Henningham Sir Edward Hampden Knights were brought to the Barre Sergeant Bramston MAy it please your Lordship to hear the return read or shall I open it Chief Justice Hide Let it be read Mr. Keeling read the return being the same as that of Sir Thomas Darnell May it please your Lordship I shall humbly move upon this return in the behalf of Sir John Henningham with whom I am of Councell it is his petition that he may be bailed from his imprisonment it was but in vain for me to move that to a Court of Law which by Law cannot be granted and therefore in that regard that upon this return it will be questioned whether as this return is made the Gent. may be bailed or not I shall humbly offer up to your Lordship the case and some reasons out of mine understanding arising out of the return it self to satisfie your Lordship that these Prisoners may and as their case is ought to be bailed by your Lordship The exception that I take to this return is as well to the matter and substance of the return as to the manner and legall form thereof the exceptions that I take to the matter is in severall respects That the return is too generall there is no sufficient cause shewn in speciall or in generall of the commitment of this Gentleman and as it is insufficient for the cause so also in the time of the first imprisonment for howsoever here doth appear a time upon the second warrant from the Lords of the Councell to detain him still in prison yet by the return no time can appear when he was first imprisoned though it be necessary it should be shewn and if that time appear not there is no cause your Lordship should remand him and consequently he is to be delivered Touching the matter of the return which is the cause of his imprisonment it is expressed to be Per speciale mandatum domini Regis This is too generall and uncertain for that it is not manifest what kind of command this was Touching the legall form of the return it is not as it ought to be fully and positively the return of the Keeper himself only but it comes with a significavit or prout that he was committed Per speciale mandatum domini Regis as appeareth by warrant from the Lords of the Councell not of the King himself and that is not good in legall form For the matter and substance of the return it is not good because there ought to be a cause of that imprisonment This writ is the means and the only means that the Subject hath in this and such like case to obtain his liberty there are other writs by which men are delivered from restraint as that de homine replegiando but extends not to this cause for it is particularly excepted in the body of the writ de manucaptione et de cautione admittenda but they lie in other cases but the writ of Habeas corpus is the only means the subject hath to obtain his liberty and the end of this writ is to return the cause of the imprisonment that it may be examined in this Court whether the parties ought to be discharged or not but that cannot be done upon this return for the cause of the imprisonment of this Gentleman at first is so far from appearing particularly by it that there is no cause at all expressed in it This writ requires that the cause of the imprisonment should be returned and if the cause be not specially certified by it yet should it at the last be shewn in generall that it may appear to the Judges of the Court and it must be expressed so farre as that it may appear to be none of those causes for which by the Law of the Kingdome the Subject ought not to be imprisoned and it ought to be expressed that it was by presentment or indictment and not upon petition or suggestion made to the King and Lords which is against the statute made in the 25 Ed. 3. c. 4. 42
Tibi praecipimus quod praed Thom ' cum tibi constare poterit ipsum ab excom ' praedict ' per praedict ' Official ' absolvi à Prison ' qua detinetur si ea occasione non alia detineat ' in eadem sine dilatione deliberari fac ' And yet it cannot be said that although the King recited in his writ that the Archbishop had signified unto him that he had written unto the Officiall of the Archdeacon that the King said that the Archbishop had written for he doth not affirme so much precisely but onely referreth himself unto the Certificate of the Archbishop Plowden 122. Buckley and Rivers case it is put that if a man will bring an action of debt upon an obligation and declare that it appeares by the obligation that the defendant stood bound to the plaintiffe in twenty pounds the which he hath not paid this declaration is not good insomuch as it is not alledged by matter in fact that he was bound unto him in twenty pound but the deed is alledged by recitall onely 21 Ed. 4. 43. Plowden Com' 126. 143. Browning and Beestons case The Abbot of Waltham being appointed collector of a Disme granted unto the King in discharge of himself in the Exchequer pleadeth Quo inter recordat ' Ter. Pasc anno 15. domini Regis Edvardi 1. inter alia continetur quod R. 2. had granted unto the predecessors of the said Abbot that he nor any of his successours should be any collectors of any dismes to be granted afterwards and it was adjudged that this plea was ill For the saying it was contained among the Records it is no precise affirmation that the King had granted to his predecessors that they should be discharged of the collecting any dismes but it is onely an allegation by way of recitall and not by precise affirmation the plea may not bee good 2 3 Mar. Dier 117. 118. the plaintiffes reply in barre of all pleadeth that Iohn Abbot of W. was seised of his lands in right of his Church and so seised by the assent of the tenant by indenture 14 Hen. 4. testat ' quod praedict ' Abbat ' convent ' demiserunt tradiderunt unto the plaintiffe and ruled that this form of pleading was ill insomuch as it was not alledged by precise affirmation quod demiserunt sed indentura testatur quod demiserunt which is not sufficient insomuch as it is onely an allegation by way of recitall that the Indenture doth witnesse and the same Indenture may witnesse so much and yet not be a demise And if in pleading there must be direct affirmation of the matter alledged then à fortiore in a return which must be more precise then in pleading and so by all the cases I have formerly touched it appeareth that this return is no expresse affirmation of the keeper of the Gatehouse that Sir Iohn Corbet is detained in prison by the speciall commandment of the King but onely an affirmation of the Lords of the Councell who had signified unto him that his detainment in prison was by speciall command of the King The return which ought to be certain and punctuall and affirmative and not by way of information out of another mans mouth may not be good as appeareth by the severall books of our Law 23 Ed. 3. Rex vic' 181. upon a Homine replegiando against the Abbot of C. the Sheriffe returneth that he had sent to the Bailiffe of the Abbot that answered him that he was the villain of the Abbot by which he might not make deliverance and a Sicut alias was awarded for this return was insufficient insomuch that he had returned the answer of the Bailiffe of the Abbot where he ought to have returned the answer of the Abbot himself out of his own mouth Trin. 22 Ed. 2. Rot. 46. parent vill ' Burg Evesque de Norwich repl ' 68. Nat. Br. Case 34. Fitz. Nat. Br. 65. 34 Ed. 3. Excom ' 29. the case appeareth to be such in a trespasse the defendant pleadeth the plaintiffe is excommunicate and sheweth forth the letter of the Bishop of Lincoln witnessing that for divers contumacies c. and because he had certified no excommunic ' done by himself but by another the letter of Excommunication was annulled for the Bishop ought to have certified his own act and not the act of another Hillarii 21 Hen. 8. Rot. 37. it appeareth by the return of an Habeas corpus that Iohn Parker was committed to prison for security of the peace and for suspition of felony as per mandatum domini Regis nunciatum per Robertum Peck de Cliffords Inne and upon his return Iohn Parker was bailed for the return Commiss fuit per speciale mandatum domini Regis nunciatum per Robertum Peck was not good insomuch that it was not a direct return that he was committed per mandatum domini Regis And for the first point I conclude that this return is insufficient in form insomuch that it doth not make a precise and direct return that he was committed and detained by the speciall command of the King but only as he was signified by the warrant of the Lords of the Councel which will not serve the turn and upon the book of 9 Hen. 6. 44. the return of the cause of a mans imprisonment ought to be precise and direct upon the Habeas corpus insomuch as thereby to be able to judge of the cause whether it be sufficient or not for there may not any doubt be taken to the return be it true or false but the Court is to accept the same as true and if it be false the party must take his remedy by action upon the case And as concerning the matter of the return it will rest upon these parts First whether the return be that he is detained in prison by speciall commandment of our Lord the King be good or not without shewing the nature of the commandment or the cause whereupon the commitment is grounded in the return The second is whether the time of the first commitment by the commandment of the King not appearing to the Court is sufficient to detain him in prison Thirdly whether the imprisonment of the subjects without cause shewed but onely by the commandment of the King be warrantable by the laws and statutes of this Realm As unto the first part I finde by the books of our law that commandments of the King are of severall natures by some of which the imprisonment of a mans body is utterly unlawfull and by others of them although the imprisonment may be lawfull yet the continuance of him without bail or mainprise will be utterly unlawfull There is a verball command of the King which is by word of mouth of the Kings only and such commandment by the King by the books of our law will not be sufficient either to imprison a man or to continue him in prison 16. 6. Monstrans de
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
Lordship and all others but the parties themselves for I except them My Lord the great and mighty reason that they insisted upon was the inconveniences that might come to the subjects in their liberties if this Return should be good and this reason they inferred out of Records and Books of the Common Law which gives the liberty of the subjects I doe acknowledge that the liberty of the subject is just and that it is the inheritance of the subject but yet it is their inheritance secundum legem terrae My Lords they put many cases likewise to enforce it 1 2 Eliz. Dier fo 175. that the continuance of a Capias shall bee from Term to Term without Term betwixt because otherwise the party defendant may be kept too long in prison and 38 Ass pl. 22. Broke tit Imprisonment 100. that imprisonment is but to detaine the party till he have made fine to the King and therefore the King cannot justly detain him in prison after the fine tendred and 16 H. 6. monstrans de faictz 182. if the King command me to arrest a man and thereupon I doe arrest him he may have an action of false imprisonment or of trespasse against me though it be done in the Kings presence and 1 H. 7. 4. the discourse of Hussey where he saith that Sir John Markham delivered unto King Edward the fourth that hee should not arrest upon treason or felony any of his subjects because hee could not wrong his subjects by such arrest for they could not have remedy against him Prerogative Br. 139. These my Lord are the causes that they insisted upon for this purpose To the two first I shall give but one answer which is that the restraint in these two cases and most of the other cases before cited appears to be in the ordinary course of Judicature fit for Westminster Hall and not for the Kings Councell Table A writ of Capias was the first originall of it and therefore not to be applied to the cause of ours And for the other two cases the law presumeth that the active part of them is not so proper for the Majesty of a King who ever doth these things by his subordinate Officers But that the subject should not be committed by the King was never heard of for the King may commit any man at his pleasure but that is not our case but whether when the King hath committed one he must render a cause of that commitment that it may appear whether the party be bailable or not or else the party must be delivered The Book 9 E. 3. fol. 16. pl. 30. cited of a Cessavit the King having by Proclamation commanded that in the County of Northumberland no Cessavit should be brought c. during the war the tenant pleadeth this command and it was denyed him and he that notwithstanding was commanded to plead but the reason thereof was because the commandment thereof was given by E. 2. who being dead the commandment was determined The Book of Edward the third 4. fol. 16. is indeed where the commandment was given by the same King and that was likewise denyed him for the King cannot command your Lordship to any other Court of Justice to proceed otherwise then according to the Laws of this kingdome for it is part of your Lordships oath to judge according to the Law of the kingdome But my Lord there is a great difference between those legall commands and that absolute Potestas that a Soveraign hath by which a King commands but when I call it absoluta potestas I doe not mean that it is such a power as that a King may doe what he pleaseth for he hath rules to governe himself by as well as your Lordship who are subordinate Judges under him the difference is the King is the head of the same fountaine of Justice which your Lordship administers to all his subjects all Justice is derived from him and what he doth he doth not as a private person but as the Head of the Common-wealth as Iusticiarius Regni yea the very essence of Justice under God upon earth is in him and shall not wee generally not as subjects onely but as Lawyers who governe themselves by the rules of the Law submit to his command but make inquiries whether they be lawfull and say that the King doth not this or that in course of Justice If your Lordship sitting here shall proceed according to Justice who calleth your actions in question except in your own Judgements you see some errour in the proceeding and then you are subject to a writ of Errour But who shall call in question the Actions or the Justice of the King who is not to give any account for them as in this our case that he commits a subject and shews no cause for it The King commits and often shews no cause for it is sometimes generally Per specialâ— mandatum domini Regis sometimes Pro certis causis ipsum dominum Regem moventibus but if the King doe this shall it not bee good it is all one when the commitment is Per speciale mandatum domini Regis and when it is Pro certis causis ipsum dominum Regem moventibus and it is the same if the commitment be Certis de causis ipsum dominum Regem tangentibus And my Lord unlesse the Return to you doth open the secrets of the commitment your Lordship cannot judge whether the party ought by Law to be remaunded or delivered and therefore if the King allow and give warrant to those that make the Return that they shall expresse the cause of the commitment as many times he doth either for suspition of felony or making money or the like we shall shew your Lordship that in these causes this Court in his Jurisdiction were proper to try these criminall causes and your Lordship doth proceed in them although the commitment be Per speciale mandatum domini Regis which hath not secret in it in these causes for with the warrant he sendeth your Lordship the cause of the committing and when these warrants are made and brought into this Court your Lordship may proceed but if there be no cause expressed this Court hath always used to remaund them for it hath been used and it is to be intended a matter of State and that it is not ripe nor timely for it to appear My Lord the main fundamentall grounds of Arguments upon this case beginnes with Magna Charta from thence have grown states for explanation thereof severall Petitions of Parliament and Presidents for expedition I shall give answers to them all For Magna Charta in the 29 Chapter hath these words No Free-man shall be taken nor imprisoned or disseised of his freehold liberties nor free customes nor be outlawed or exiled nor any other way destroyed nor we will not passe upon him nor condemn him but by lawfull Judgement of his Peers or by the Law of the Realm My Lord this statute
hath been many times confirmed the Lord Coke numbred up the number to be about twenty and we are to conclude on this it is the foundation of our liberties No Free-man can be imprisoned but by legale judicium Parium suorum aut per legem terrae But will they have it understood that no man should be committed but first he shall be indicted or presented I think that no learned man will offer that for certainly there is no Justice of Peace in a County nor Constable within a Town but he doth otherwise and might commit before an Indictment can be drawn or a Presentment can be made what then is meant by these words Per legem terrae if any man shall say this doth not warrant that the King may for reasons moving him commit a man and not be answerable for it neither to the party nor under your Lordships favour unto any Court of Justice but to the High Court of Heaven I doe deny it and will prove it by your statutes My Lord it was urged by the Councell on the other side that our printed Magna Charta which saith nec super eum mittimus are mistaken and that in divers Manuscripts it is expresly set down to be nec eum in Carcerem mittimus I cannot judge of the Manuscripts that I have not seen but my Lord I have one here by me which was written many Ages agoe and the words in print are word for word as that that is here written Then they say that Matthew Paris sets it downe so in his story my Lord we doe not govern our selves by Chronicle but to answer that of Matthew Paris he reports a thing done in King Iohns time but it was then but thought on and it was enacted in the time of Henry the third and there bee many things said to be done in Matthew Paris which were not and many things omitted by him which were done This Charter was but in election in the time of King John and then it might be nec eum in Carcerem mittimus but it was not enacted till the time of Henry the third and then that was omitted and the Charter granted as now we have it But if they doe see no more then I in this clause I know not why we should contend about these words seeing the first part of this statute saith Nemo imprisonetur why then may not I say as well nec eum in carcerem mittimus I see no difference in the words and therefore my Lord I shall not insist any longer upon the literall exposition of the words of Magna Charta but I will resort to the rest of it which is exprest in the subsequent statute and in common practise 2 E. 3. 8. 5 E. 3. 9. 14 E. 3. 14. The Councell on the other side said that the statute of 28 E. 3. c. 3. expresseth and giveth life to this Charter I shall desire to have that statute read Keeling Clerk Item whereas it is contained in the great Charter c. Vide all these statutes following in Master Littletons Argument in Parliament Heath Atturney My Lord the reading of this statute will give answer to it for it is apparent by the words thereof none shall be taken by petition c. and that the Court be extended to the first arrest but they are to be understood that none shall be condemned but hee shall be brought to answer and be tried And if it be expounded otherwise it will be contrary to that practise which was then in use But it is utterly forbidden by this statute that any man should be condemned upon suggestions or petitions made to the King or Councell without due triall by Law The next statute they cited was 25 Ed. 3. cap. 4. My Lord I desire that that may be read Keeling Clerk Item that no man of what estate or condition soever that he be shall be put out of land or tenement nor taken nor imprisoned nor disinherited nor put to death without being brought to answer by due processe of Law 42 E. 3. 3. Heath Atturney My Lord this statute is intended to be a finall prosecution for if a man shall be imprisoned without due processe and never be brought to answer that is unjust and forbidden by this statute but when a man is taken in causes that are unknown to us who walk below the staires we are not privy to the circumstances which may cause the triall to be delayed and peradventure it is not time to bring the matter to triall because it is not yet come to maturity and therefore this is not in the meaning of the statute Another statute that they mention is in the same year and it is pag. 9. chap. 9. I desire it may be read Keeling Clerk Item because the people of the Realm c. Vide Master Littleton as before Heath Atturney My Lord it is very clear that this statute had no manner of thought of this cause in question But whereas Sheriffes did procure Commissions to be awarded to themselves for their private gain to the prejudice of the subject the statute condemneth those commissions but it maketh nothing to this question which we have now in hand The next statute which they cited was 37 Ed. 3. cap. 18. I beseech it may be read Keeling Clerk Item though it be contained in the great Charter c. Vide as aforesaid Heath Atturney My Lord this statute seems to be a commentary and light to the other statutes the scope whereof is against private suggestions made to the King or his Councell and not in legall way and therefore it condemnes them and this is more fully expressed in the statute of 38 Ed. 3. cap. 9. which they likewise mentioned by which statute direction is given what security those persons which make such suggestions are to give that they should prosecute their suggestions and what punishment they shall undergoe if their suggestions be found false Keeling Clerk Item as to the Article made at the last Parliament c. Vide as before said Heath Atturney My Lord this and the last statute seem to conduce both to one purpose that they that in their accusations went not in a legall way to bring the party to his answer it was directed by this statute that they should goe a legall way The last Parliament in print the Councell on the other side produced was the statute of 1 R. 2. chap. 12. which I desire may be read Keeling Clerk Item whereas divers people at the suit of parties were committed to the Fleet c. Vide as before Heath Atturney My Lord it appeareth that the scope of this statute is against the Wardens of the Feet for some miscarriages in them but there is one thing in this statute which I shall desire your Lordship to observe and that is for those misdemeanours he shall forfeit his office except it be by writ from the King or his commandement so that it was no new doctrine